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test | 001-170467 | ENG | CHE | CHAMBER | 2,017 | CASE OF X v. SWITZERLAND | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Sri Lanka) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant, Mr X, is a Sri Lankan national of Tamil origin, who was born in 1979 and resides in Switzerland. 6 7. During the 1990s the applicant was a member of the Liberation Tigers of Tamil Eelam (“the LTTE”) and participated in armed resistance against the Sri Lankan Government. In late 2003 he was detained in Colombo for about three months. The applicant stated that during this time he had been ill-treated. He furthermore stated that he had been threatened and subjected to surveillance after his release. 8. On 2 April 2007 the applicant left Sri Lanka for Italy, where he lived until May 2009. His wife, who had remained in Sri Lanka, had allegedly been subjected to searches and questioning by the Sri Lankan police and security forces. She left Sri Lanka on 13 March 2009 and joined the applicant in Italy. 9. On 25 May 2009 the applicant and his wife illegally entered Switzerland and applied for asylum on grounds of political persecution in Sri Lanka. The applicant emphasised that, as a member of the LTTE, he had participated in armed resistance against the Government of Sri Lanka and had been ill-treated in detention. 10. On 8 December 2009 the applicant’s wife gave birth to their first child. 11. In a decision taken on 1 June 2011, the Federal Migration Office (“the FMO” – now the State Secretariat for Migration) held that the applicant and his wife did not fulfil the criteria necessary to obtain refugee status because they had failed to present sufficient evidence in support of their claim. Furthermore, the FMO rejected the applicant’s asylum application and ordered the execution of their deportation order to Sri Lanka, finding it enforceable, legal and reasonable (möglich als auch rechtmässig und zumutbar). 12. On 9 June 2011 the applicant’s wife gave birth to their second child. 13. On 5 July 2011 the applicant and his wife appealed against the FMO’s decision to the Federal Administrative Court, requesting that it annul the deportation order according to which the authorities of the Canton of St Gallen had to deport them no later than 27 July 2011, by force if necessary (pursuant to points 3, 4, and 5 of the operative part of the FMO’s decision of 1 June 2011). However, the applicant did not challenge the FMO’s decision refusing to grant him asylum or to recognise him as a refugee (points 1 and 2 of the operative part of the FMO’s decision of 1 June 2011). 14. In its judgment of 1 October 2012, the Federal Administrative Court rejected the applicant’s appeal on the merits. The court held that the FMO had violated the applicant’s right to be heard by refusing to grant him and his wife access to certain documents in its possession, namely a country report of 22 December 2011 on the conditions in Sri Lanka, which had been established during an official mission of the FMO in September 2010. Nevertheless, since the FMO had provided the parties with access to these documents at a later date, the Federal Administrative Court concluded that the original violation had been remedied. 15. The Federal Administrative Court further held that there was no impediment to enforcing the deportation order. In particular, weighing the preponderance of the evidence (mit beachtlicher Wahrscheinlichkeit), it held that neither the applicant’s submissions nor the official file indicated that he or his wife would be subjected to treatment contrary to Article 3 of the Convention if they returned to Sri Lanka. 16. On 2 November 2012 the applicant and his wife applied to the Federal Administrative Court to have its judgment of 1 October 2012 reconsidered. The applicant claimed that the court had not adequately considered all the relevant evidence. He also submitted a copy of an LTTE magazine cover from 1997, which included his photograph. He also submitted a letter from his sister dated 19 October 2012, as well as confirmation from the Human Rights Commission of Sri Lanka that he had lodged a complaint with that institution on 5 October 2012. 17. In its judgment of 27 November 2012, the Federal Administrative Court rejected the applicant’s application for reconsideration, holding that there were insufficient grounds to reopen the case. It emphasised that the application for reconsideration was an extraordinary remedy, which could not be used to submit facts which could have been raised during the ordinary proceedings. 18. On 21 August 2013 the applicant and his family were deported to Sri Lanka. Upon arrival at the airport in Colombo, they were detained and questioned for thirteen hours. Following that, the applicant’s wife and children were released, whereas the applicant was incarcerated and illtreated in Boosa Prison. According to his wife, when she visited the applicant in prison she noted that his face appeared swollen and concluded that her husband had been beaten. 19. On 6 December 2013 a representative of the Swiss Embassy and a senior protection officer of the UNHCR visited the applicant in the prison governor’s office. During this visit, the representatives noted that the applicant was visibly afraid to speak and that a free conversation with him was impossible. 20. Following this, the applicant’s family was relocated to Switzerland. 21. On an unknown date the applicant was transferred to a so-called “rehabilitation” prison, from which he was released on 12 April 2015. 22. After his release, the applicant applied for a visa on humanitarian grounds to the Swiss authorities in order to return to Switzerland and submit a fresh asylum application. On 21 April 2015 the FMO allowed the applicant to return to Switzerland and he did so on 25 April 2015. 23. On an unspecified date the applicant submitted a fresh asylum application to the Swiss authorities and on 26 June 2015 his application was granted. 24. In his application to the Court, the applicant pointed out that in a parallel case another Tamil, Mr Y, had been deported from Switzerland to Sri Lanka on 25 July 2013, that is to say almost a month before the applicant’s own deportation. According to Y’s lawyer, upon his arrival in Sri Lanka he had been detained and subjected to ill-treatment which had led to his hospitalisation. 25. Furthermore, on 2 August 2013 Y’s lawyer had written to the Swiss Minister of Justice and to the director of the Migration Office asking that all deportations of Tamils to Sri Lanka be suspended. 26. The director of the FMO commissioned an external investigation into the expulsions of the applicant and Y. The report delivered by Prof. W. Kälin on 23 February 2014 concluded that, due to a combination of several shortcomings of the Swiss authorities, the individual risk of illtreatment of the two Tamils in Sri Lanka had not been properly assessed. 27. In addition, the UNHCR also carried out an assessment of the decision-making process of the FMO in the applicant’s case and identified a number of shortcomings. These consisted of, in particular, the prolonged lapse of time between the asylum application (May 2009) and the execution of the deportation order (August 2013); the fact that the situation in Sri Lanka had changed considerably after the end of the civil war in 2009; the involvement of several FMO employees in different phases of the decision-making process throughout an extended period of time; the fact that the applicant’s hearing had been partly held in a superficial manner and that the authorities had not conducted additional investigations. 28. The results of both reports were made public on 26 May 2014. 29. On 10 December 2013 the FMO adopted an internal report on the arrest of the applicant by the Sri Lankan authorities. 30. After the end of the civil war in Sri Lanka, in 2011 Switzerland resumed deportations of Tamils to that country. The practice was again stopped in September 2013, following the expulsion and ill-treatment of the applicant and Y. 31. Subsequently, the FMO analysed the situation in Sri Lanka in the light of the results of its missions to that country, the case-law of international courts, the practices of other countries and the reports of international organisations. As a consequence, the FMO has modified its practice concluding that the assessment of risk would now be carried out following criteria developed by the European Court of Human Rights in all cases involving deportations or Sri Lankan nationals. | 1 |
test | 001-178958 | ENG | SVK | CHAMBER | 2,017 | CASE OF MAC TV S.R.O. v. SLOVAKIA | 4 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant company was established in 1991 and has its registered office in Bratislava. It is the operator of two private television channels and the broadcaster of a television programme, JOJ PLUS. The present case concerns a commentary (glosa) delivered during a television programme broadcast on 12 April 2010 after the crash of the plane in which the late President of Poland, Lech Kaczynski, had been travelling. 7. The commentary’s title was “Compassion in Accordance with Protocol”; the commentary contained the following: “The crash of a Polish plane carrying the presidential couple on board is a true human tragedy. The whole of Poland is in mourning and politicians are more or less expressing their condolences. That is required by diplomatic protocol. Thus, Slovak russophile politicians too shed a tear, albeit a forced one, over the death of the russophobe, Lech Kaczynski. Even ordinary citizens, not bound by any protocol, are expressing their sorrow. Jews, homosexuals, liberals, feminists and leftoriented intellectuals are bitterly sorry for the death of a man who represented an extreme Polish conservativism, and who was a symbol of a country where people who are not white heterosexual Catholic Poles were born as a punishment. I am sorry, but I do not pity Poles. I envy them.” 8. Following the broadcast of the above-mentioned commentary, the Broadcasting Council (Rada pre vysielanie a retransmisiu) commenced administrative proceedings against the applicant company, pursuant to section 19(1)(a) of the Broadcasting and Retransmission Act (Law no. 308/2000 Coll., as amended - “the Broadcasting Act”), on 25 May 2010. 9. On 14 September 2010 the Broadcasting Council found that the applicant company had breached its obligations under the Broadcasting Act in that the manner of processing and presenting the content of the commentary had interfered with the dignity of the late Polish President, Lech Kaczynski. It fined the applicant company 5,000 euros (EUR). 10. The Broadcasting Council assessed the conflict between the applicant company’s freedom of expression and the protection of the human dignity of the late President. On the one hand, it acknowledged the aim of the commentator to express his opinion and his subjective stance on the social and political event through criticism, sarcasm and irony, which were inherent to journalistic expression. On the other hand, where the Broadcasting Council found difficulties was in particular the content of the last two sentences of the commentary (“I am sorry, but I do not pity the Poles. I envy them”). The Broadcasting Council concluded that the manner in which the commentator had presented his opinion – that is to say his lack of regret for the Polish President’s death – had contravened the duty to respect his human dignity. According to the Broadcasting Council, the degree of sarcasm and irony in the broadcast commentary had been so high that its content and the manner in which the author’s opinion had been presented had been substandard and had dishonoured the late President. 11. The Broadcasting Council noted that Mr Kaczynski, as President, was sufficiently recognisable as an “individual”, which was a prerequisite for the applicability of the protection of the dignity, human rights and fundamental freedoms of “others” under section 19(1)(a) of the Broadcasting Act. It concluded that by broadcasting the aforesaid commentary the applicant company had committed an administrative offence (správny delikt) – in particular a breach of its duties under the said provision – and that imposing a fine on it in that respect was in order. It considered such a measure to be necessary in a democratic society, as it served a legitimate aim – that is to say the protection of the right to human dignity. 12. On 10 March 2011 the Supreme Court upheld the Broadcasting Council’s decision. It rejected the applicant company’s argument that the Broadcasting Council had sanctioned it for voicing its political opinion. Rather, the Supreme Court confirmed the Broadcasting Council’s conclusion about the defamatory character of the commentary in question and the interference with the late President’s human dignity. 13. The applicant company lodged a complaint before the Constitutional Court challenging the decisions of the Broadcasting Council and the Supreme Court under Articles 6 § 1 and 10 of the Convention and Articles 26 (freedom of expression) and 46 (right to judicial protection) of the Constitution. It alleged that the decisions in question had been arbitrary, unfair and insufficiently reasoned and that their respective authors had breached its freedom of expression by sanctioning it for voicing its opinion regarding the late President as a politician. 14. On 27 July 2011 the Constitutional Court rejected the applicant company’s complaint. It considered, inter alia, that the above-mentioned authorities had duly explained their conclusions, without having overly strayed from a reasonable interpretation of the applicable rules and established practice. The Constitutional Court noted that the impugned commentary had expressed not only sarcasm and criticism of the late President’s policy but also a positive attitude towards his death. This very fact had interfered with his right to respect for his human dignity, which led the Constitutional Court to conclude that the domestic authorities’ decisions had not been arbitrary. As to the applicant company’s complaint under Article 10 of the Convention (and Article 26 of the Constitution), the Constitutional Court held that a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of procedural rules. Given that it had rejected the complaint concerning the alleged violation of procedural rules, it also had to reject the complaint relating to an alleged violation of a substantive provision. | 1 |
test | 001-140951 | ENG | NLD | ADMISSIBILITY | 2,014 | N.F. v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr N.F., is an Afghan national, who was born in 1961 and lives in the Netherlands. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3). He was represented before the Court by Ms A.M. van Eik, a lawyer practising in Amsterdam. 2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 3. summarised as follows. 4. On 19 January 2001 the applicant applied for asylum in the Netherlands. On the same date he was interviewed about his identity, nationality and travel route. 5. On 28 February 2001 and 1 May 2003 the applicant was interviewed about his asylum account (nader gehoor). He claimed inter alia that he had not seen his wife and their two children since 1998 and that he had been a professional military officer. Between 1984 and 1992 – when the Mujahideen came to power – he had worked for the KhAD/WAD (Khadimat-e Atal-at-e Dowlati/Wezarat-e Amniyat-e Dowlati). In 1987 he had also become a member of the communist party (People’s Democratic Party of Afghanistan; PDPA). In 1994, in order to flee the unstable situation in Kabul and the Mujahideen, the applicant and his family had moved to Mazar-i-Sharif. After the second Taliban invasion of Mazar-i-Sharif on 8 August 1998, his problems had started. He had been arrested by three armed Taliban, he had been kicked, beaten and taken to a house. Suddenly the Taliban had left. As the door of the house had been unlocked, the applicant had simply walked off. He had then fled to an uncle with whom he had stayed. On 22 November 2000 the Taliban had raided his uncle’s house. The applicant had been taken by them and held at a control post where he had been ill-treated under questioning. He had been released on 25 November 2000 after his uncle had managed to bribe some Taliban. Fearing that he would be killed in Afghanistan on account of his work for KhAD/WAD, his PDPA membership and his Tajik ethnic origins, the applicant had fled to the Netherlands where he arrived on 15 January 2001. 6. In December 2001 the applicant converted to Christianity and was baptised. 7. On an unspecified date the applicant’s wife and their two eldest children travelled to the Netherlands and applied for asylum. They were granted asylum and on an unspecified subsequent date were granted Dutch citizenship. A third child has been born to the applicant and his wife in the Netherlands. 8. On 14 August 2003 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; “the Minister”) issued an intention (voornemen) to reject the applicant’s asylum application and to hold Article 1F of the 1951 Refugee Convention against him. The Minister based this decision on the applicant’s statements about his career from 1981 to 1992 as an officer in the KhAD/WAD in which he had last held the rank of major, and on a general official report (algemeen ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) on “Security Services in Communist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) On the basis of this report, the Netherlands immigration authorities adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD/WAD. 9. On 11 September 2003 the applicant submitted his written comments on the intention (zienswijze), arguing that it would be unjust to hold Article 1F against him as he did not have personal knowledge of the crimes committed by the KhAD/WAD and he had never participated in such crimes. 10. On 2 May 2006 an additional interview (aanvullend gehoor) was held with the applicant, mainly about his conversion to Christianity and whether his expulsion to Afghanistan would expose him to a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention. 11. By letter of 28 June 2007, following the additional interview of 2 May 2006, the Deputy Minister of Justice (Staatssecretaris van Justitie; “the Deputy Minister”; the successor to the Minister for Immigration and Integration) notified the applicant of her intention to reject his asylum application by holding Article 1F of the 1951 Refugee Convention against him. The Deputy Minister held that the applicant had failed to demonstrate that he, if expelled to Afghanistan, would be exposed to a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention. According to the official report of the Ministry of Foreign Affairs of 31 January 2007 not all former members of the KhAD/WAD ran such a risk. The applicant had failed to establish that specific groups were looking for him. Furthermore, it could not be said that his conversion to Christianity would give rise to such a risk. The Deputy Minister further notified the applicant of her intention to impose an exclusion order (ongewenstverklaring) on him. 12. On 26 July 2007 the applicant submitted his written comments on the intention. He argued that he had a real and personal risk of being subjected to treatment contrary to Article 3 upon return to Afghanistan as the Taliban were looking for him, because of his involvement in the KhAD/WAD as well as because of his conversion to Christianity which was known in Afghanistan. 13. By decision of 21 August 2007 the applicant’s asylum application was refused by the Deputy Minister, Article 1F of the 1951 Refugee Convention being held against him on account of his involvement with the KhAD/WAD. In addition, an exclusion order was imposed on him. As regards Article 3 of the Convention, the Deputy Minister concluded that the applicant had not established that he had a well-founded fear of being exposed to a real risk of treatment prohibited by this provision. 14. On 13 September 2007 the applicant filed an appeal with the Regional Court (rechtbank) of The Hague against the rejection of his asylum request and, on 3 October 2007, he lodged an objection (bezwaar) with the Deputy Minister against the imposition of the exclusion order. 15. The Deputy Minister rejected this objection on 14 March 2008 and, on 19 March 2008, the applicant filed an appeal against this decision with the Regional Court of The Hague. 16. By judgment of 24 April 2008 the Regional Court of The Hague sitting in Assen declared inadmissible the applicant’s appeal against the rejection of his asylum application. As under domestic law an alien cannot have legal residence if an exclusion order has been imposed, the Regional Court found that the applicant had no legal interest in a determination of his appeal. On 23 May 2008, the applicant filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). 17. In its judgment of 6 May 2008, the Regional Court of The Hague sitting in Assen rejected the applicant’s appeal against the exclusion order. On 29 May 2008, the applicant filed a further appeal with the Administrative Jurisdiction Division. 18. On 6 May 2008, at the request of the applicant, the Chamber 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 applicant to Afghanistan (Rule 39 of the Rules of Court) until 21 May 2008. 19. On 20 May 2008 the Chamber prolonged the measure under Rule 39 of the Rules of Court until further notice. On that same date the Government were invited to submit observations on the admissibility and merits of the case. 20. On 17 September 2008 the Administrative Jurisdiction Division rejected the applicant’s appeal against the judgment of 24 April 2008. In this ruling, the Division held that the alleged violation of the applicant’s rights under Articles 3 and 8 of the Convention on account of his expulsion from the Netherlands were to be determined in the still pending proceedings concerning the imposition of the exclusion order. No further appeal lay against this ruling. 21. On 23 October 2008, the Deputy Minister withdrew her decision of 14 March 2008 in which she had rejected the applicant’s objection of 3 October 2007 against the imposition of the exclusion order. As the object of the administrative appeal proceedings had thus ceased to exist, the Administrative Jurisdiction Division decided on 5 December 2008 to declare inadmissible the applicant’s further appeal of 23 May 2008. 22. In a fresh decision taken on 12 March 2009 and a pertaining addendum of 17 March 2009, the Deputy Minister again rejected the applicant’s objection of 3 October 2007. The Deputy Minister considered that, as Article 1F of the Refugee Convention was being held against him, the applicant could be considered as constituting a danger to national security. However, the Deputy Minister did accept that the applicant, if removed to Afghanistan, would be exposed to a real and personal risk of being subjected to treatment in breach of Article 3 of the Convention upon return to Afghanistan. However, this could not lead to the applicant being granted a residence permit. 23. The applicant filed an appeal against this decision with the Regional Court of The Hague. On 7 June 2012, this appeal was heard before the Regional Court of The Hague sitting in Amsterdam. It decided to adjourn the appeal to allow the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; the successor to the Deputy Minister of Justice) to replace the exclusion order by an entry ban within the meaning of Directive 2008/115/EC of 16 December 2008 (on common standards and procedures in Member States for returning illegally staying third-country nationals). The appeal before the Regional Court is presumably still pending as no further information about these proceedings has been submitted. 24. On 5 September 2012 the Court of Justice of the European Union (“ECJ”) gave judgment in Joined Cases C-71/11 and C-99/11, Bundesrepublik Deutschland v Y and Z. In this judgment the ECJ held that for the purpose of determining which acts of interference with freedom of religion may be regarded as constituting persecution, it is unnecessary to distinguish acts that interfere with the ‘core areas’ (‘forum internum’) of the basic right to freedom of religion, which do not include religious activities in public, from acts which do not affect those purported ‘core areas’. According to the ECJ, acts which may constitute a ‘severe violation’ within the meaning of Article 9 (1)(a) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection guaranteed (“the Qualification Directive”) include serious acts which interfere with one’s freedom not only to practice one’s faith in private circles but also to live that faith publicly. 25. On 30 November 2012 the Administrative Jurisdiction Division handed down a ruling, in proceedings unconnected to the applicant, in which it applied the ECJ judgment of 5 September 2012. 26. By letter of 13 December 2012 the Netherlands Government were requested to inform the Court what, if any, practical consequences they drew from the rulings of 5 September 2012 and 30 November 2012 in relation to the pending case. 27. In its reply of 6 March 2013 the Government requested the Court to strike the application out of the list of pending cases, submitting the following: “By decision of 11 March 2009 it was established that the applicant runs a real risk of treatment contrary to Article 3 of the Convention upon returning to Afghanistan. Consequently, the applicant will not be removed to Afghanistan. Since Article 1F of the Refugee Convention applies to him, the applicant is not eligible for an asylum permit. This conclusion is unaffected by the judgment delivered by the Court of Justice of the European Union on 5 September 2012.” 28. In his comments of 15 April 2013, the applicant objected to the Government’s request to strike the application out of the list of cases. 29. The relevant domestic law and practice as regards asylum proceedings, exclusion orders and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-32, 25 September 2012). | 0 |
test | 001-158155 | ENG | BGR | CHAMBER | 2,015 | CASE OF KONSTANTIN STEFANOV v. BULGARIA | 3 | 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) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Yonko Grozev | 5. The applicant was born in 1974. He is a lawyer who lives and practises in Plovdiv. 6. The facts of the case may be summarised as follows. 7. At the beginning of 2005, in the course of criminal proceedings against N.R. and another individual on charges of aggravated theft, punishable by imprisonment of up to fifteen years, the Plovdiv District Court (“the District Court”) decided that in the interests of justice two lawyers should be appointed defence counsel for the two accused, who could not afford to pay for a lawyer but wished to be legally represented. 8. The District Court sent a request to the Plovdiv Bar asking them to nominate two lawyers as defence counsel to represent the accused. The letter stated, inter alia, that the counsel’s remuneration would be determined in accordance with the Ordinance of the National Bar Council on Lawyers’ Minimum Remuneration 2004 (“the Remuneration Ordinance”). 9. In a letter of 31 May 2005, sent to the applicant and the District Court, the Plovdiv Bar nominated the applicant to represent N.R. The letter contained the following text: “In accordance with section 44 of the Bar Act, you must act as defence counsel ... and appear at the hearing in the court proceedings. Failure to comply may result in disciplinary action under the Bar Act and civil liability vis-à-vis the parties [to the criminal proceedings]. In its decision to appoint [you as] defence counsel, the [criminal] court ... must set [your] remuneration in an amount not lower than the minimum provided for in the Remuneration Ordinance. Otherwise you must refuse to provide legal representation because you are at risk of a disciplinary [sanction] for breach of section 132 (6) of the Bar Act and the instructions of the National Bar Council ...” 10. The Plovdiv District Court held a hearing in the criminal case against N.R. on 10 June 2005. At the beginning of the hearing, at around 3.30 p.m., the court appointed the applicant as N.R’s counsel and invited him to state his position in respect of whether there was an obstacle to proceeding with the hearing or not. 11. The applicant replied that he would represent N.R. if the court undertook to comply with section 44(2) of the Bar Act, which in turn referred to the Remuneration Ordinance, and thereby determined his remuneration at or above the minimum 550 Bulgarian levs (BGN; the equivalent of approximately 280 euros (EUR)) provided for in law. 12. The presiding judge refused to determine the minimum remuneration at that point in time. He warned the applicant that he would fine him if he refused to act as counsel for the defendant. 13. Following this exchange, the applicant refused to represent the defendant and left the courtroom. 14. The court fined the applicant BGN 500 (approximately EUR 260). The decision imposing the fine referred to Article 269 § 7 of the Code of Criminal Procedure 1974 (see paragraph 33 below) and stated as follows: “In the court’s view, the lawyers already appointed to serve as defence counsel should not have asked about their remuneration [at this stage of the proceedings]. The court would be in a position to estimate that amount only after the collection of all evidence and following the final oral pleadings. By raising the question of setting their remuneration at a minimum of BGN 550 before the examination of the case started, the [two lawyers] showed manifest disrespect for the court and were in breach of the Code of Criminal Procedure. Despite a warning, they did not comment, they refused to act as legal representatives nominated by the Plovdiv Bar upon this court’s request ... and left the courtroom. Seeing that in the present case the defendants must be legally represented ... the hearing will have to be adjourned owing to the unjustified absence of their defence counsel. Therefore, [the applicant and the other lawyer] shall be fined BGN 500 each.” 15. Then the prosecutor requested a one-hour break so that new counsel could be found for the accused. He submitted that, in view of the principle of speediness of criminal proceedings and the fact that all witnesses and experts were there in the courtroom, the hearing should not be adjourned to a later date. The court granted the request and decided to proceed with the case at 4.40 p.m. on the same day. 16. The hearing was resumed as scheduled. The prosecutor asked the court to appoint another lawyer who was present in the courtroom as counsel for the accused and to give him time to get acquainted with the case file. The court granted the request. 17. At 4.55 p.m. the new lawyer stated that he had acquainted himself with the case and agreed to be appointed defence counsel. The court did so and proceeded with the case. The proceedings ended with a plea bargain agreement between the prosecutor and the defendants. The court set the replacement defence counsel’s remuneration at BGN 30 (about EUR 15). 18. On an unspecified date the applicant appealed against the fine imposed on him (see paragraph 14 above). He claimed that he had not been appointed by the District Court in accordance with the law. In particular, the court had been bound by law, specifically the Bar Act, to determine his remuneration in the actual decision to appoint him counsel (see paragraph 30 below); the court had also had to determine the amount according to the Remuneration Ordinance. By refusing to comply with those legal requirements, the court had breached the law. Therefore, the applicant’s refusal to act as counsel had been justified; he should not have been held responsible for the adjournment of the hearing and he had not acted disrespectfully. Consequently, he submitted, the fine had been unlawful. 19. On 11 July 2005 the Plovdiv Regional Court dismissed the applicant’s appeal against the fine in a final decision. It acknowledged that pursuant to section 44(2) of the Bar Act the remuneration to be paid to a court-appointed defence counsel had to be indicated in the order for his or her appointment and that it ought not be lower than the minimum provided for in the Remuneration Ordinance. However, the court found that it was only possible to determine the exact amount of remuneration to be paid at the end of the proceedings. The reason for this was that the Remuneration Ordinance provided for a lower amount in case of termination of the criminal proceedings by way of a plea bargain (see paragraph 28 below). The court could not predict the outcome of the proceedings at their outset. Therefore, the applicant’s insistence on a prior determination of his fee was contrary to section 44 of the Bar Act. The applicant had thus caused an unjustified adjournment and had rightly been fined under Article 269 § 7 of the Code of Criminal Procedure. The court finally held that the amount of the fine was proportionate to the gravity of the offence. | 0 |
test | 001-168833 | ENG | UKR | ADMISSIBILITY | 2,016 | YIZHACHENKO v. UKRAINE | 4 | Inadmissible | Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 1. The applicant, Ms Viktoriya Pavlivna Yizhachenko, is a Ukrainian national who was born in 1968 and lives in Poltava. She was represented before the Court by Mr O.V. Levytskyy, a lawyer practising in Kyiv. 2. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On an unspecified date criminal proceedings were instituted against the applicant on several counts of fraud and incitement to bribery. The applicant remained at liberty, having paid a bail. 5. On 31 July 2012, during the trial, the Oktyabrskyy District Court of Poltava (“the District Court”) ordered that the applicant be placed in custody. 6. On 3 September 2012 the applicant was put on the list of wanted persons. 7. On 1 February 2013 she was arrested. 8. On 7 February 2013 she was placed in the Poltava Pre-Trial Detention Centre (“the SIZO”). On admission to the SIZO the applicant had a medical examination. 9. On 27 March 2013 she was admitted to a medical unit at the SIZO with a diagnosis of ischemic heart disease, stenocardia, atherosclerotic cardio sclerosis, impaired cardiac function and hypertensive disease. The applicant had an electrocardiogram and was provided with treatment. The next day she had a consultation with a cardiologist. 10. On 5 April 2013 the applicant was examined by a neuropathologist. 11. On 17 April 2013 the applicant had a stenocardia attack accompanied by a sharp drop in her arterial blood pressure. She was provided with urgent medical care by an ambulance team which had arrived at the request of the SIZO. The applicant was given further treatment in a city hospital. 12. On 8 May 2013 the applicant was taken to the gynaecological ward of a city hospital where she was treated for uterine fibroids and haemorrhagic syndrome. Further examinations showed that the applicant suffered from endometrial cancer (adenocarcinoma corporis uteri). On 10 May 2013 the applicant was returned to the SIZO and placed in the medical unit for further treatment and observation. 13. On 21 May 2013 the applicant was examined and prescribed further drug therapy. 14. On 6 June 2013 the applicant was examined by an oncologist who recommended she have surgery. She was registered with the Poltava regional oncologic clinic as a cancer patient with T1N0M0-stage cancer. 15. On 7 August 2013 the applicant wrote a statement refusing to consent to surgical treatment, chemotherapy or any other complex treatment until she had been seen by the oncology panel at the Kyiv oncologic centre. 16. In a letter of 10 August 2013, the governor of the SIZO and the head of the SIZO’s medical unit informed the applicant’s lawyer that the applicant had refused to have the necessary treatment because she wanted to be examined by doctors from the Kyiv oncology institution. 17. On 14 August 2013 the applicant had her lungs X-rayed. No tuberculosis was found. 18. On 12 September 2013 the applicant was diagnosed with cervical osteochondrosis and prescribed medical treatment and further observation. 19. On 8 October 2013 the applicant was taken by ambulance to the gynaecological ward of the city hospital because of a uterine haemorrhage. The doctor who treated her confirmed her diagnosis and the need for surgery. The applicant returned to the SIZO the next day. 20. On 16 October 2013 the applicant was examined by an oncologist from the Poltava regional oncologic clinic who also recommended surgery. 21. On 17 October 2013 the Court indicated to the Government under Rule 39 of the Rules of Court that they should secure immediately, by appropriate means, inpatient treatment for the applicant for her health condition. 22. On 21 October 2013 the applicant was admitted to the Poltava regional oncologic clinic for further examination and treatment. 23. On 1 November 2013 a panel of doctors at the clinic made a plan for the applicant to have surgery and scheduled it for 5 November 2013. The applicant refused to give her consent to the proposed treatment. 24. On 13 November 2013 the applicant again refused to consent to the medical intervention and treatment proposed by the doctors at the Poltava regional oncologic clinic. The refusal was witnessed by six witnesses, including the doctor in charge of her treatment. The applicant was returned to the SIZO’s medical unit for further supervision and non-surgical treatment, which included taking prescription pills. 25. On 25 November 2013 the applicant was taken to the Poltava regional psychiatric hospital for observation in connection with signs of a possible mental disorder. On 2 December 2013 she was returned to the SIZO after she was found to be of sound mind and that she had attempted to simulate a mental disorder. The applicant continued to accept the treatment provided to her in the SIZO. 26. On 14 March 2014 the District Court found the applicant guilty of financial frauds and of incitement to bribery. It sentenced her to five years’ imprisonment but released her from serving that sentence pending three year probation period. The District Court further changed the preventive measure against her from pre-trial detention to a written undertaking not to abscond. The applicant was released on the same day. 27. On 10 June 2014 the Government informed the Court of the applicant’s release, following which the Court lifted the interim measure. | 0 |
test | 001-174417 | ENG | POL | COMMITTEE | 2,017 | CASE OF WRONA v. POLAND | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonably necessary to prevent fleeing);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) | Aleš Pejchal;Krzysztof Wojtyczek | 5. The applicant was born in 1979 and lives in Warsaw. 6. On 11 February 2004 the applicant was charged with domestic violence. 7. On 27 February 2004 a bill of indictment in respect of the applicant was lodged with the Warsaw District Court. Subsequently, on an unknown date the case was returned to the prosecution authorities in order to amend the charges. 8. On 20 August 2004 the Warsaw District Court ordered the applicant to undergo a psychiatric assessment in a psychiatric hospital. The applicant did not lodge an interlocutory appeal against this decision. 9. On 11 April 2005 the applicant was brought by the police to the Warsaw Psychiatric Hospital in order to undergo the psychiatric assessment. However, he refused to stay and left the waiting room. On the same day he was ordered to come to the hospital on 18 April 2005, on pain of detention on remand. On 18 April 2005 the applicant came to the hospital. However, he refused to stay for the assessment, explaining that he had many urgent matters to attend to. 10. On 7 June 2005 the Warsaw District Court ordered the applicant’s detention on remand in accordance with Articles 249 § 1 and 258 § 1 (1) and (2) of the Code of Criminal Procedure (“the CCP”) (see paragraphs 25 and 26 below). The court held that in view of the applicant’s parents’ and his sister’s testimonies there was a reasonable suspicion that the applicant had committed the offences with which he was charged. In addition, there was a reasonable risk that the applicant would obstruct the proceedings or that he would go into hiding. The court noted that the applicant’s mother had admitted that he had stayed irregularly at his home address: he had been coming home late in the evening and leaving early in the morning. Furthermore, the applicant had failed to comply with the order of 20 August 2004 to undergo a sixweek psychiatric assessment (see paragraph 8 above). The court noted the applicant’s parents’ submissions that his mental condition was bad, he was not able to function independently and he was in need of urgent medical assistance. The court also attached importance to the fact that the applicant had previously behaved in a similar manner. He had been admitted to a psychiatric hospital on 23 October 2001, however the next day he had left the hospital on his own initiative. Consequently, in the court’s view the applicant’s submissions that he would comply with the order to undergo a psychiatric assessment were not convincing. 11. An appeal lodged by the applicant was dismissed by the Warsaw Regional Court on 20 September 2005. The court mainly referred to the fact that the applicant had still to undergo a psychiatric assessment. It also noted the fact that the applicant stayed irregularly at his home address, therefore once released he might go into hiding. 12. The applicant’s detention was subsequently prolonged on the following dates: 28 September 2005 (until 4 January 2006), 27 December 2005 (until 4 February 2006) and 1 February 2006 (until 4 March 2006). The court relied on the grounds previously given. The applicant unsuccessfully appealed against all those decisions. 13. On 18 October 2005 the Warsaw District Court ordered that the applicant undergo a psychiatric assessment at the hospital wing of the Warsaw Detention Center. The applicant underwent this assessment between 21 November 2005 and 1 February 2006. 14. On 3 February 2006 the amended bill of indictment was lodged with the Warsaw District Court. The applicant was charged with domestic violence and possession of 1.15 grams of marijuana. 15. On 16 February 2006 the Warsaw District Court again extended the applicant’s detention (until 4 May 2006). The court stressed that there was a reasonable risk that the applicant would obstruct the proceedings and that he would go into hiding. This risk was particularly valid in view of the difficulties which the applicant had caused in the past by his repeated refusal to undergo a psychiatric assessment. 16. During a hearing held on 23 March 2006 the applicant’s father and sister refused to testify. The applicant was released from detention on the same day. Subsequently, on 5 April 2006, the applicant’s mother also refused to testify. 17. The Warsaw District Court held further hearings on 27 April, 7 July and 16 October 2006 and on 24 January and 12 March 2007. 18. On 12 March 2007 the Warsaw District Court gave judgment, acquitting the applicant on charges of domestic violence and convicting him of possession of a small amount of marijuana. The court sentenced the applicant to five months’ imprisonment stayed for three years. 19. Following an appeal by the applicant, the judgment was quashed (in its part concerning possession of drugs) by the Warsaw Regional Court on 9 August 2007. The proceedings were subsequently discontinued by the Warsaw District Court on 6 November 2007. The court found that the prohibited act committed by the applicant had not constituted an offence because of its insignificant social consequences (znikoma szkodliwość społeczna czynu). 20. On 5 November 2008 the applicant instituted proceedings for compensation for unjustified detention under Article 552 of the CCP (see paragraph 27 below) before the Warsaw Regional Court. He stated that while the main reason for his detention on remand had been a six-week psychiatric assessment, he had been kept in detention for nearly one year. Moreover, the assessment had begun only five months after his arrest. He also stressed that there had been no risk that he would have attempted to obstruct the proceedings. 21. His claim was dismissed by the Warsaw Regional Court on 18 March 2010. The court referred at the outset to the Supreme Court’s Resolution of 15 September 1999 (see paragraph 28 below). It further noted that in the present case there had been no breach of procedural provisions of the CCP since the detention on remand had been applied mainly in view of the applicant’s repeated refusal to comply with the courts’ orders. Consequently, the applicant’s detention on remand had been undoubtedly justified, even though eventually he had been acquitted. 22. On 16 July 2010 the Warsaw Court of Appeal dismissed the applicant’s appeal. The court repeated the reasons given by the Regional Court. It stressed that the applicant had clearly obstructed the proceedings by refusing to undergo a psychiatric assessment. Furthermore, there had been a risk that he could have gone into hiding. Lastly, the court noted that as soon as the applicant’s parents and sister had refused to testify, the applicant had been released. 23. On 31 May 2011 the applicant’s cassation appeal was dismissed as manifestly ill-founded by the Supreme Court. | 0 |
test | 001-169522 | ENG | FIN | CHAMBER | 2,016 | CASE OF M.P. v. FINLAND | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano | 5. The applicant was born in 1971 and lives in Helsinki. 6. The applicant and her partner began to cohabit in 2003. Their daughter was born in November 2004. In the spring of 2006 the applicant felt that, in her view, the child’s father was behaving strangely with the child and that the child did not want to stay at home alone with her father. She also started to fear for her own and her child’s safety as the father was, in her view, violent. In May 2006 the applicant and her daughter left the child’s father. 7. In July 2006 the child’s father initiated custody and contact rights proceedings vis-à-vis his daughter. 8. In August 2006 the Kouvola District Court (käräjäoikeus, tingsrätten) gave an interim decision that the father was to meet his daughter for two hours every other weekend under supervision. This arrangement continued for about a year but was disrupted for some time in 2007. According to the applicant, the child was often restless and talked strangely after the meetings with her father. 9. On 15 June 2007 the Kouvola District Court gave another interim decision according to which the father had a right to meet with his daughter for 2 to 4 hours at a time without supervision. 10. On 21 August 2007 the Kouvola District Court held an oral hearing about the custody and contact rights. 11. On 4 September 2007 the Kouvola District Court gave both parents joint custody of the child. She was to live with her mother and to meet her father every other weekend from Friday to Sunday and during the holidays, unsupervised. The meetings were, however, temporarily discontinued for the duration of the pre-trial investigation (see below). On 9 January 2008 the Kouvola Appeal Court upheld the District Court’s decision. 12. The applicant claimed that after the third unsupervised visit with the father in August 2007, her almost three-year-old daughter’s behaviour changed radically and she was showing strong symptoms. The child was using vulgar language and was restless and anxious. The child had told her mother about things that her father did to her. She kept repeating these issues and suffered from increasingly bad nightmares. The applicant contacted a child psychiatrist. On 16 August 2007 she contacted the child welfare authorities in Helsinki reporting her suspicions of sexual abuse. 13. On 29 August 2007 the child welfare authorities reported the matter to the police. They recommended that the meetings with the father be discontinued for the duration of the investigation. 14. On 5 September 2007 the pre-trial investigation conducted by the Helsinki Police Department commenced. Both parents were questioned. On 14 September 2007 the Forensic Child and Adolescent Psychiatry Centre received an official request for assistance from the Helsinki Police Department. At the time the child was two years and ten months old. The Centre replied that children under three years old could not be interviewed within the forensic-psychological interview framework as it was not possible to obtain reliable information on possible sexual abuse from children under three years of age, especially in situations involving custody disputes. Such interviews became effective only in respect of children aged four years or more. 15. On 20 September 2007 a physiological examination was carried out to determine whether the child showed any signs or symptoms of the alleged abuse, but no such external signs were revealed. The pre-trial investigation was concluded on 15 October 2007 as there was no appearance of any crime. 16. After having received information about the conclusion of the pretrial investigation, the applicant contacted the Forensic Child and Adolescent Psychiatry Centre on 18 October 2007 and expressed her surprise that no psychological assessment had been conducted in the matter. 17. In a telephone conversation of 19 October 2007 the applicant expressed to the social worker her fear that her child continued to be at risk of being subjected to sexual abuse when meeting her father and insisted on another investigation. She was concerned that the pre-trial investigation by the police had not been complete and that the social workers would be responsible if something happened to her child while the meetings with the father were not supervised. The social worker in turn explained to the applicant that the pretrial investigation had not brought to light any somatic signs or symptoms that would suggest sexual abuse of the child. Moreover, concerning the visiting rights, the social worker explained that the decision of 4 September 2007 by the Kouvola District Court was still in force and that if the applicant was not satisfied with it, she would have to appeal against it in courts of law instead of complaining about it to the child welfare authorities. However, the applicant insisted on making the second report to the child welfare authorities, claiming that she had been threatened with loss of her custody rights if she did not allow the meetings with the father. The father of the child received information about this report from the police. 18. On 18 January 2008 the applicant submitted another child welfare report and the second report to the police, insisting on another investigation and stating that she suspected that someone was abusing her child during visits to the child’s father. She also reported the matter to the social workers in Helsinki. 19. On 25 and 28 January 2008 respectively the applicant took her daughter to an emergency clinic for examination as she had trouble sleeping and was behaving oddly. No somatic signs or symptoms of sexual abuse were found. 20. The Kouvola Police Department started to investigate the matter. As the applicant had taken the child to a doctor on 25 and 28 January 2008, no new physical examination was carried out. The pre-trial investigation was concluded on 4 May 2008 as there was no appearance of any crime. 21. On 18 February 2008 the applicant lodged a complaint with the National Authority for Medico-legal Affairs (Terveydenhuollon oikeusturvakeskus, Rättsskyddscentralen för hälsovården) about the fact that the child had not been heard at all during the pre-trial investigation in autumn 2007. The case was transferred ex officio to the regional State Provincial Office (lääninhallitus, länsstyrelsen). 22. On 18 February 2008 the applicant also lodged a complaint with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman), asking him to investigate why the police did not hear her child during the pre-trial investigation. 23. On 16 April 2008 the Parliamentary Ombudsman decided not to take any measures as the police investigation was still pending before the Kouvola Police (see paragraph 20 above). He did not have competence to give orders to the police concerning the investigation of the matter as he could not examine the actions of private individuals. 24. On 24 November 2008 the regional State Provincial Office found that there was no minimum age for hearing a child and that the three-year agelimit for child psychiatric interviews was only a recommendation. The child had only been two years and ten months old at the time of the first police investigation. No new physical examination had been carried out during the second pre-trial investigation as such an examination had been carried out on 25 and 28 January 2008. The Office decided to take no action in the applicant’s case. 25. On an unspecified date, the father of the child asked the police to investigate whether the applicant had defamed him as she had given false information about him to the social worker on 19 October 2007, claiming that the child was in danger of being sexually abused by her father during their upcoming meetings (see paragraph 17 above). He claimed that these allegations were not true and that the applicant’s motive for such accusations was that she wanted to have sole custody of the child and hamper the meetings between the father and the child. 26. On 17 February 2009 the Public Prosecutor pressed charges against the applicant for having insisted on 19 October 2007 that the child was in danger of being sexually abused by her father after the police had already investigated the matter and, on 15 October 2007, found no appearance of any crime. 27. On 11 September 2009 the Helsinki District Court convicted the applicant of defamation and sentenced her to 45 day-fines, amounting to 630 euros (EUR). She was ordered to pay the father EUR 1,000 in nonpecuniary compensation and his costs and expenses amounting to EUR 1,885.66. The court’s reasoning was the following: “The insinuation made by M.P. and referred to in the charges cannot be understood to refer to any other person than [the father of the child] and it was made in a situation in which M.P. knew about the decision of the Helsinki Police Department to stop investigating the suspected sexual abuse of a child, which investigation had been initiated solely on the basis of the information submitted by her. According to the decision, the investigation did not reveal any such evidence on the basis of which the threshold of “reason to suspect” would have been attained. The decision refers to the somatic examination of the child, requested by the police and conducted on 20 September 2007 by a specialist in paediatrics at which M.P. was also present. According to the medical certificate, the girl’s somatic status was normal and there were no external signs of sexual abuse. From the medical certificate of 15 October 2008, which was admitted as written evidence, it appears that the meetings between the father and the child had been supervised until 16 June 2007 and that thereafter until the filing of the police report on 29 August 2007 and the freezing of the meetings, there had been unsupervised day meetings only three times, lasting four hours each. [The father of the child] stated that out of these few meetings one meeting had taken place in an amusement park, which was not disputed by M.P. M.P. stated that the sexually-coloured talk of the child had started already during the supervised visits. At that time the child was less than three years old. On the sole basis of the meeting circumstances and the medical examination, M.P. could not have had strong grounds to consider that her insinuation of the crime was true, even if the child had said what she was alleged to have said. Nor could the child’s other, more general symptoms have given sufficient confirmation of her insinuation. When assessing whether one is guilty of defamation, it is irrelevant that the act has been committed by pursuing an earlier report to child welfare authorities and that it has been made to a public official who is bound by confidentiality. Even in a child welfare report one must not give untruthful and smearing information or insinuations about others. M.P. must have understood that the insinuation was of such a kind that in any event it would come to the knowledge of [the child’s father] and that its content, being almost of the worst kind, was bound to cause him suffering. ... Ignorance of legal provisions does not eliminatebasis for considering that M.P.’s act could be regarded as manifestly excusable due to a mistake. On the basis of the grounds expressed above, the District Court considers that M.P. did not have any such reasons to make an insinuation towards [the father of the child] that she would have had a reasoned ground to do so without defaming him.” 28. By letter dated 12 October 2009 the applicant appealed against the judgment of the District Court to the Helsinki Appeal Court (hovioikeus, hovrätten). She claimed only to have voiced her previous concern as the child was not heard at all during the concluded pre-trial investigation. Her concerns were not directed at the father but at the fact that a danger to the child’s health still existed. It had been the child welfare authorities who had qualified these concerns as relating to sexual abuse. Sexual abuse did not always leave physical marks which could be revealed by medical examination but it was a grave procedural mistake not to interview the child during the pre-trial investigation. She considered this mistake to be so substantial that the danger to her child’s health still existed despite the outcome of the investigation. She also referred to the case Juppala v. Finland, no. 18620/03, 2 December 2008. 29. On 5 January 2011, after having held an oral hearing, the Helsinki Appeal Court upheld the District Court judgment. The court found the following: “On the basis of the oral hearing held, the Appeal Court has no reason to assess the evidence differently than the District Court. The acts committed by M.P. [...] fulfil the constituent elements of defamation, criminalised by Chapter 24, section 9, of the Penal Code. The fact that the insinuation was made to a public official who is bound by confidentiality is not relevant when assessing the constituent elements, as appears from the Supreme Court precedent 2006:10. M.P. [...] did not have sufficiently strong grounds to hold the information true in a situation where [she] knew that the pre-trial investigation into [the child’s father] had terminated. Although child protection considerations have to be taken into account, a conviction in these circumstances is not in contradiction with freedom of expression which is protected as a fundamental and human right. M.P. has considered that she is free from criminal liability under Chapter 4, section 2, of the Penal Code due to a mistake as to the unlawfulness of her act as she had mistakenly regarded her act as lawful because of a reason similar to erroneous advice given by public officials. The pretrial investigation had, however, been started solely on the basis of information given by M.P. and this investigation was already terminated, M.P. being aware of it, before the commission of the present act. Therefore there are no grounds to apply the provision concerning mistake as to the unlawfulness of the act. Nor is there any reason to change the District Court judgment as far as the conviction is concerned.” 30. By letter dated 7 March 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. 31. On 14 December 2011 the Supreme Court refused the applicant leave to appeal. 32. On 18 March 2010 the father of the child requested the Helsinki District Court to order that the child live with him. 33. On 25 January 2011 the Helsinki District Court ordered that the child was to live with her father in Kouvola. This decision was upheld by the Helsinki Appeal Court on 2 December 2011. On 11 May 2012 the Supreme Court refused the applicant leave to appeal. 34. The applicant has complained to the Court about these proceedings in a separate application (see application no. 71785/12 M.P. and E.B. v. Finland) which was declared inadmissible on 17 April 2014. 35. On an unspecified date the applicant asked the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) to investigate whether the decision not to hear the child was acceptable. On 7 May 2012 the Ministry of the Interior transferred the matter to the National Police Board (Poliisihallitus, Polisstyrelsen). 36. On 3 August 2012 the National Police Board found that police conduct in the matter had been appropriate. The police had conducted an adequate pre-trial investigation without leaving any issues unclarified. | 1 |
test | 001-158350 | ENG | LVA | CHAMBER | 2,015 | CASE OF MIĶELSONS v. LATVIA | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review) | Armen Harutyunyan;Carlo Ranzoni;Johannes Silvis;Luis López Guerra;Mārtiņš Mits | 5. The applicant was born in 1959 and resides in Riga. 6. The relevant facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant was the chairman of the State-owned joint stock company L. On 14 June 2010 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs) opened a criminal investigation into suspected unlawful activity by the company’s officials. 8. On 15 June 2010 at 7 a.m. investigator A.R. ordered a search of the applicant’s apartment. It was possible that he was involved in the offences under investigation, and there was reason to believe that unlawfully obtained money and some other items were located there. 9. Between 7.40 and 10.40 a.m. officers from the Bureau carried out the search. The applicant was allowed to telephone his lawyer who, according to him, arrived at 9.38 a.m. 10. The applicant submitted that during the search he had not been free to leave the apartment. 11. The search record, however, stated that he and his wife had been informed of their right to remain present and make remarks about the investigators’ actions. They had attended the search. His lawyer had noted down in the record that the decision authorising the search did not comply with certain provisions of the Criminal Procedure Law (Kriminālprocesa likums). It was signed by all three of them. 12. At about 11 a.m. the applicant telephoned a security guard at company L. to ask that his driver place his briefcase in a car. 13. At 11.15 a.m. the officers informed the applicant he was under arrest. 14. Between 11.21 and 11.34 a.m. investigator G.B. drew up an arrest record specifying that the applicant had been arrested at 11.15 a.m. on suspicion of abuse of office with intent to obtain a material benefit and assisting money laundering, and that a witness had identified him as a perpetrator. He and his lawyer signed the record, noting also that his arrest was unjustified. 15. At 6.30 p.m. the applicant was interviewed. 16. The investigating authorities performed thirty searches in total that day and, according to the applicant, arrested seven other individuals. The Government submitted, without indicating when, that nine individuals had been arrested. They further drew attention to the large scale of the crimes under investigation and various investigative actions. 17. On 17 June 2010 at about 9 a.m. A.R. served on the applicant a decision declaring him a suspect and an application addressed to the Riga City Centre District Court (Rīgas pilsētas Centra rajona tiesa) for his pre-trial detention. His lawyer was present at the time. 18. According to A.R. there was a strong suspicion that, between 1 January 2006 and 15 June 2010 the applicant, in his position as chairman of company L., had secured decisions favourable to companies ANS and GGSMT for the reconstruction of hydro units and regarding a thermal power plant project. A sum of no less than 1,130,000 euros (EUR) obtained as a result of this unlawful activity had allegedly been laundered through companies registered in Latvia and abroad, by way of property transactions and investments in companies owned by the applicant and K.M. By doing so, the applicant had allegedly committed the offences of abuse of office with intent to obtain a material benefit and assisting money laundering. 19. The applicant, referring to his lawyer’s handwritten application, contended that at 9.20 a.m. that morning his lawyer had applied to A.R. for leave to consult, prior to the detention hearing, the documents in support of the application for detention. She had refused the request. The Government, however, submitted that neither the applicant nor his lawyer had made any complaints about access to the case file. 20. Between 10.04 a.m. and 1.30 p.m. an investigating judge of the Riga City Centre District Court held the hearing. 21. The applicant’s lawyer requested A.R. to provide evidence in support of the application for detention. She refused to do so and the hearing continued. 22. The lawyer submitted that the officers had controlled the applicant’s movements in the apartment from the start of the search. He had therefore requested them to draw up a record of his client’s arrest. In this connection, he pointed out that no one could be held in custody for more than forty-eight hours. 23. The investigating judge granted A.R.’s application and ordered the applicant’s detention pending trial. With regard to the suspicion that he had committed the offences in question, the judge reasoned as follows: “...search records, inspection records, statements [and] other material of the criminal proceedings give rise to grounds for suspicion that [the applicant] has committed the offences in relation to which the criminal proceedings have been instituted...” 24. As regards access to the case file, the judge stated: “Section 375(1) of the Criminal Procedure Law provides that case material is a secret of the investigation ... material and evidence that justify [the applicant’s] detention contain secret information ... [the investigator] has the right to disclose this material ... only to officials involved in the criminal proceedings.” 25. On 21 June 2010 the applicant’s lawyer lodged an appeal against this decision. On 5 July 2010 he submitted his arguments in support thereof. 26. He requested the Riga Regional Court (Rīgas apgabaltiesa) to grant him access to the case file so as to be able to effectively challenge the applicant’s detention. It did not grant the request. 27. On 6 July 2010 an appeal hearing was held. The lawyer maintained that he had the right to access the documents upon which the applicant’s detention had been based. 28. The Regional Court dismissed the appeal and upheld the original ruling. With regard to the suspicion that the applicant had committed the offences in question, the judge stated: “The court has had sufficient time to examine the case material furnished to it. The court, like [the lower court], concludes that information has been obtained ... giving rise to grounds for suspicion that [the applicant] has committed the accused offences. The court reached that conclusion having examined ... records of investigative actions [and] witness statements, and with special attention paid to information obtained by ... special investigative actions ... carried out long before the criminal proceedings were instituted.” 29. As regards access to the case file, the judge reasoned as follows: “An official in charge of criminal proceedings presents case material to an investigating or higher judge for them to assess grounds of pre-trial detention. An investigating or higher judge examines the case material ... [which] is kept secret from the parties not conducting the proceedings.” 30. No appeal lay against this decision. 31. On 18 August 2010 the investigating judge released the applicant on bail. 32. On 30 June 2010 the applicant’s lawyer lodged a complaint regarding his client’s arrest with the Office of the Prosecutor General. 33. On 8 July 2010 prosecutor V.J. dismissed it. Neither the applicant nor his lawyer had noted in the search record that the applicant’s freedom of movement or his liberty had been restricted during the search; they had not noted anything in the arrest record to say that he had been deprived of his liberty before this either. The applicant’s lawyer had not specified the manner in which his client had been deprived of his liberty. It could not therefore be established that he had been deprived of his liberty during the search. 34. By a final decision of 11 October 2010 chief prosecutor A.K. dismissed the complaint. | 1 |
test | 001-148891 | ENG | LVA | ADMISSIBILITY | 2,014 | KOČEGAROVS AND OTHERS v. LATVIA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant in the first case, Mr Rolands Kočegarovs, is a Latvian national who was born in 1977 and is currently serving a prison sentence in Daugavpils. He was represented before the Court by Mr A. Zvejsalnieks, a lawyer practising in Riga. 2. The applicant in the second case, Mr Aldis Bernots, is a Latvian national who was born in 1965 and is currently residing in Riga. He was represented before the Court by Mr A. Stumbergs, a lawyer practising in Riga. 3. The applicant in the third case, Mr Raivo Jurševskis, is a Latvian national who was born in 1971 and is currently in detention in Riga. He was represented before the Court by Ms D. Rone, a lawyer practising in Riga. 4. The Latvian Government (“the Government”) in the first case were represented by their Agent at the time, Ms I. Reine, and subsequently by Ms K. Līce, who represented the Government also in the second and third cases. 5. The relevant facts of the cases, as submitted by the parties, may be summarised as follows. 6. Between 12 July 2002 and 28 November 2005 the applicant served his prison sentence in Grīva Prison (Grīvas cietums). During that time he was temporarily placed in Daugavpils Prison (Daugavpils cietums), between 20 and 26 June 2003. 7. On 25 May 2004, the applicant was diagnosed with infiltrative tuberculosis of the left lung, for which he received treatment. 8. On 4 December 2007 the applicant lodged a compensation claim against the Grīva Prison with the Administrative District Court (Administratīvā rajona tiesa) in relation to his having contracted tuberculosis between July 2002 and June 2004. He also requested exemption from the court fee owing to his financial situation. 9. On 27 December 2007 the Administrative District Court refused to consider the applicant’s claim because he had failed to observe the extrajudicial procedure. Having complied with that requirement, the applicant re-lodged his compensation claim with the District Court. 10. On 7 April 2008 he submitted a request to the District Court to decide on the issue of the court fee on the grounds that he was unable to pay it. On 30 May 2008 the District Court lifted the court fee. 11. On 15 June 2009 the District Court examined the merits of the applicant’s claim. It assessed the applicant’s allegation, including whether he had been imprisoned with persons suffering from tuberculosis. The District Court could not, however, establish that the applicant had contracted tuberculosis because of any action by the prison administration. It dismissed the applicant’s claim. 12. The applicant appealed against the aforementioned decision. On 9 July 2009 the District Court refused to proceed with his appeal. It found that the applicant had not submitted a document on the payment of court fee for lodging an appeal, which totalled 10 Latvian lati (LVL). Nor had he applied for exemption from it. 13. It gave the applicant a deadline of 10 August 2009 to submit a document on the payment of the court fee or a request for full or partial exemption from it. 14. On 3 November 2009 the Administrative Regional Court (Administratīvā apgabaltiesa), on an appeal from the applicant upheld the aforementioned ruling. It set a new deadline of 21 December 2009 for the submission of a document on the payment of the court fee. No further appeal was available. 15. The applicant did not pay the court fee. On 30 December 2009 the Administrative District Court decided that his appeal should be considered as not having been lodged and be returned to him. An appeal lay against that decision. The applicant did not appeal. 16. On 19 August 2009 the applicant submitted a complaint to the Health Inspectorate (Veselības Inspekcija). He requested information on when and where he had contracted tuberculosis. He considered that he had not received adequate healthcare while in detention. 17. The Health Inspectorate instigated an inquiry. On 26 November 2009 it issued a decision finding no shortcomings in the healthcare provided to the applicant while he was in detention. It refused to commence administrative violation proceedings. That decision was subject to appeal. The applicant apparently did not appeal. 18. On 10 May 2008 the applicant was arrested on suspicion of having committed a robbery. 19. On 12 May 2008 he was questioned by police officers. The same day he was brought before the Investigating Judge of the Jūrmala City Court (Jūrmalas pilsētas tiesa), B.H., who authorised his detention on remand. 20. The applicant was held in a short-term detention facility in Jūrmala from 10 to 16 May 2008. According to the applicant, the conditions there were appalling. 21. On 19 December 2009 the applicant complained to the Office of the Prosecutor General (Latvijas Republikas Prokuratūras Ģenerālprokuratūra) regarding a police officer, D.J., in relation to the applicant’s detention in May 2008. In particular, D.J. had allegedly failed to inform the applicant’s relatives of his arrest and had refused to accept the applicant’s written requests concerning his conditions of detention and his medical needs. The applicant claimed that D.J. had been aware of those issues but had not followed them up. 22. This complaint was transmitted to the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs) for examination. On 15 January 2010 the Office received another similar complaint from the applicant. 23. The Internal Security Office of the State Police conducted an inquiry. On 15 February 2010 it refused to open criminal proceedings against D.J., which refusal was subject to appeal. 24. On 15 March 2010 the Office of the Prosecutor General, upon the applicant’s appeal, upheld the aforementioned decision. No further appeal was available. 25. On 30 March 2012 the applicant lodged a compensation claim with the State Police in relation to the alleged inadequate conditions of his detention between 10 and 16 May 2008. 26. On 19 April 2012 the State Police considered the applicant’s claim belated and refused to renew the procedural time-limit for its submission. An appeal against that decision lay with the Ministry of the Interior (Iekšlietu ministrija). 27. On 17 May 2012 the applicant wrote to the Ministry that he accepted the State Police’s refusal to renew the procedural time-limit. 28. On 14 April 2009, between 5 and 6 p.m., the applicant was arrested on suspicion of aggravated murder and taken to the Riga Regional Police Department (Rīgas reģiona pārvaldes Rīgas pilsētas Latgales iecirknis). 29. According to the applicant, he was questioned for several hours at the Riga Regional Police Department by three police officers, while seated handcuffed on the chair. They accused him of being involved in the murder. They were aggressive and insulting. The Police Officer, V.J., holding a gun silencer in his hands, suggested taking the applicant to the woods and shooting him. He invited the applicant to write a confession to the murder. Another police officer was holding a stick-type object. 30. At 8 p.m. the report was drawn up on the applicant’s arrest. The applicant said that he had signed the report without having read it. The Government pointed out that according to the report the applicant had been under influence of alcohol. 31. Between 9.20 and 9.30 p.m. the applicant was searched. 32. He was subsequently placed in a holding cell in the Riga Regional Police Department, in order, according to the Government, to sober up. 33. The applicant submitted that the only furniture in the holding cell was a bench. He had no access to a toilet or water or food. He spent the night sitting on the bench. 34. The following morning, on 15 April 2009, V.J. interrogated the applicant, during which time he wrote a confession. 35. According to the applicant, V.J. had locked the office door. The same police officers were present as on the previous day. V.J. told the applicant to confess if he wanted to avoid trouble. The applicant refused, but eventually he wrote a confession under dictation from V.J. 36. Between 3 and 3.35 p.m. the Police Inspector, B.B., questioned the applicant. The record showed that the applicant had agreed to testify without a lawyer. He described the events of the day of the incident, including his attack on the victim. 37. At 6.15 p.m. on the same day, the applicant was transferred to a short-term detention facility in Riga (Rīgas īslaicīgās aizturēšanas vieta), located in another building. 38. On 16 April 2009, between 10 and 10.20 a.m., the applicant testified as a suspect. The minutes showed that the applicant’s lawyer, V.S., was present. The applicant maintained his earlier testimonies given on 15 April 2009. He gave certain other details regarding the attack on the victim, including the fact that he had committed it in anger. 39. On 16 April 2009 the applicant was brought for a detention hearing before the Judge of the Riga City Latgale District Court (Rīgas pilsētas Latgales priekšpilsētas tiesa), I.K. The applicant was represented by his lawyer, V.S. The Judge, I.K., remanded the applicant in pre-trial detention. According to her ruling, the applicant, during the hearing, explained that he had committed the crime and expressed his remorse. 40. On 23 April 2009, a visit was conducted to the crime scene from 1 to 2.20 p.m. The applicant and his lawyer, V.S., participated. The record showed that the applicant had pointed to the place where he had committed the crime and had given its other details. 41. On 19 May 2009 the applicant underwent a psychiatric examination. According to the report, during that examination the applicant’s description of the incriminated conduct had tallied with his earlier testimonies. 42. On 16 June 2009 the applicant was brought for a detention hearing before the Judge, I.K. According to I.K.’s ruling, during the hearing the applicant and his lawyer, A.K., stated that the applicant had confessed to the crime and expressed his remorse. It was decided that the applicant should remain in pre-trial detention. 43. On 3 August 2009 the Prosecutor, I.F., questioned the applicant in his capacity as an accused. His lawyer, V.S., was present. The applicant denied his involvement in the alleged crime. He stated as follows: “... [the applicant] confessed to the crime owing to moral pressure by the Police Officer, [V.J.], who informed [the applicant] that [he] had already previously committed a murder, and therefore [he] would be convicted anyway, although an admission of guilt was a mitigating circumstance. Therefore, [the applicant] was compelled to confess...” 44. The applicant lodged with the Riga City Latgale District Court a motion to review his pre-trial detention. On 18 August 2009 he was brought for a hearing before the District Court Judge, S.V. 45. During that hearing the applicant informed S.V. of the pressure exerted on him by the police officers. S.V.’s ruling reflected the applicant’s statement in that regard as follows: “... [the applicant] had admitted his guilt because of psychological pressure exerted by the police officials.” 46. In relation to the two earlier hearings of 16 April and 16 June 2009 before the Judge, I.K. the applicant submitted to the Court that on both occasions the escorting officers and the investigating officer, B.B., who were present at the hearings, had been V.J.’s colleagues. The applicant had therefore been afraid to mention his ill-treatment. 47. The applicant was brought before the Riga Regional Court (Rīgas apgabaltiesa) for the main trial on the charge of aggravated murder. 48. In the course of the trial the applicant maintained that he was innocent and that he had written the confession under psychological pressure, as follows: “During the conversation with [V.J.] on 14 April 2009 [the applicant] was psychologically influenced. [He] was told that [he] had to accept responsibility for the crime and there was no point in denying anything. [V.J.] ... indicated that [the applicant] had been previously convicted of a similar crime, and so [he] had better plead ... guilty ... as [he] would not get away with it in any case. In fact ... the admission of guilt would constitute a mitigating circumstance and ... [V.J.] would himself testify that [the applicant] had cooperated with the investigation... Likewise ... it was ironically said that [the applicant] was not a useful man, that [he] lived off a woman and was not capable of providing [for himself] financially. Also, the subsequent conditions of detention ... amounted to ridicule and psychological pressure. [The applicant] was not given food, or allowed to use a toilet or provided with a bed, since [he] spent the whole night sitting on a bench.” 49. At the hearing of 19 October 2009 the Regional Court granted the applicant’s request that V.J. be summoned to testify. V.J. was examined at the subsequent hearing on 16 November 2009. 50. On 16 November 2009 the trial was concluded. The applicant was found guilty of aggravated murder. The judgment, among other pieces of evidence, referred to the applicant’s impugned confession. The applicant’s allegation of having been pressured to write the confession was dismissed. 51. On 23 August 2011 the Supreme Court Appeal Panel, presided over by the Judge, P.O., examined the applicant’s appeal against the first-instance judgment. 52. The applicant maintained that his confession should not have been used in the trial. 53. The Appeal Panel acknowledged that between 8 p.m. on 14 April 2009 and 6.15 p.m. on 15 April 2009, the applicant had not been provided with conditions complying with section 7 of the Law on Arrested Persons Holding Procedures (Aizturēto personu turēšanas kārtības likums). However, it could not establish that the applicant had written the impugned confession as a result of the circumstances adduced. The Appeal Panel upheld the first instance judgment on the applicant’s guilt. 54. The applicant appealed against the aforementioned judgment to the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments). 55. Referring to his confession of 14 April 2009 and certain subsequent statements, the applicant submitted that his admission of guilt should have mitigated his sentence. Also, he had not intended to kill but only to injure the victim. The applicant had acted in a state of severe mental distress caused by the victim. 56. On 15 November 2011 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law. 57. On 8 February 2010 the applicant submitted a complaint to the Office of the Prosecutor General that he had spent the night between 14 and 15 April 2009 in the Riga Regional Police Department sitting on a bench, and that owing to the layout of these premises, he had been denied access to a toilet. He had not been provided with food or access to drinking water. The next day, moreover, the applicant had been questioned by three police officers who had “threatened and blackmailed him in an attempt to extract a confession”. As a result, the applicant had written a text dictated by one of the police officers. 58. The applicant’s complaint concerning conditions in the Riga Regional Police Department was transmitted for examination to its Internal Investigation Office (Rīgas reģiona pārvaldes Iekšējās izmeklēšanas birojs). In the part concerning testimonies given in the Riga Regional Police Department, however, the complaint was transmitted to the Riga Regional Court for consideration during the criminal trial. 59. On 19 March 2010 the Internal Investigation Office of the Riga Regional Police Department replied that the applicant had signed the record of his arrest on 14 April 2009 without indicating any grievances. Further, his allegation regarding conditions of detention contradicted material in the case file. 60. In the applicant’s submission to the Court, the Office’s inquiry had been exclusively formal. 61. On 7 April 2010 the applicant lodged a complaint with the Ombudsperson (Tiesībsargs). His complaint was very similar to that lodged with the Office of the Prosecutor General (see paragraph 57 above). 62. On 16 July 2010, having conducted an assessment, the Ombudsperson concluded that the inquiry conducted by the Internal Investigation Office of the Riga Regional Police Department had not been effective, in breach of Article 13 of the Convention. The Ombudsperson advised that if the applicant had suffered damage because of the inquiry, he was entitled to apply for compensation from the Head of the State Police. 63. On 19 September 2010, referring to the aforementioned findings of the Ombudsperson, the applicant applied for damages from the Head of the Riga Regional Police Department. 64. On 22 October 2010 the Head of the Riga Regional Police Department replied that the earlier investigation had shown that the applicant had not been denied access to a toilet or drinking water. The applicant had not specified the damage which he had suffered as a result of the investigation by the Internal Investigation Office of the Riga Regional Police Department. The applicant’s claim was dismissed. 65. On 31 January 2011 the applicant lodged a request with the Office of the Prosecutor General. He requested the commencement of criminal proceedings against the officers of the Riga Regional Police Department who had arrested and questioned him and had “exerted psychological pressure on and threatened the applicant in order to make him testify”. 66. On 7 February 2011 the Prosecutor, A.M., refused to commence criminal proceedings into the applicant’s complaint on the ground that there was no suggestion that a crime had been committed. He noted that the applicant had claimed, in a general manner, that certain police officers had exerted psychological pressure on him. 67. That refusal was open to appeal before the Prosecutor General. The applicant did not appeal. 68. The applicant’s complaint was also sent to the Presiding Judge of the Supreme Court Appeal Panel, P.O., who was also involved at the time in the criminal case against the applicant (see paragraph 51 above). 69. The Administrative Procedure Law (Administratīvā procesa likums) came into force on 1 February 2004. It provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts (see D.F. v. Latvia, no. 11160/07, § 40, 29 October 2013, and Melnītis v. Latvia, no. 30779/05, § 24, 28 February 2012). 70. Section 124(2) of the Administrative Procedure Law provided at the material time a State fee (valsts nodeva) of LVL 10 for lodging appeals in proceedings before administrative courts. Section 128(3) of the Law reads as follows: “(3) A court or a judge, in the light of a natural person’s financial situation, may fully or partly exempt the person from the payment of the State fee at the person’s request.” 71. Under Article 2381(3) of the Code of Administrative Violations (Administratīvo pārkāpumu kodekss), refusal by a State institution to instigate administrative violation proceedings could be appealed to a higher institution within thirty days. Where there was no higher institution, or where the latter was the Cabinet of Ministers, the refusal could be challenged before the Administrative District Court, whose decision was final. 72. Section 6(3) of the Law on the Prosecutor’s Office (Prokuratūras likums), providing for an appeal against action taken by a prosecutor, was cited in Leja v. Latvia (no. 71072/01, § 34, 14 June 2011). 73. Section 7 of the Law on Arrested Persons Holding Procedures (Aizturēto personu turēšanas kārtības likums) provides, inter alia, that an arrested person must be provided with food three times a day and with drinking water at any time. It sets out the surface areas of holding cells. It also requires every arrested person to be provided with a bed, mattress and blanket. It further states that a holding cell must be equipped with a toilet, partitioned off from the cell. | 0 |
test | 001-163111 | ENG | SRB | COMMITTEE | 2,016 | CASE OF BLAGOJEVIĆ AND OTHERS v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. All applicants were former employees of “LETEKS” u stečaju (the debtor), which was, at the relevant time, a company predominantly comprised of socially-owned capital. 5. Since the debtor failed to fulfil its contractual obligations towards its employees, on an unspecified date, the applicants instituted civil proceedings against it. 6. On 18 April 2008 the Leskovac Municipal Court ordered the debtor to pay the applicants specified amounts on account of salary arrears, plus the costs and expenses of the civil proceedings. 7. On 3 October 2010 the above judgment became final. 8. Between 20 November 2008 and 30 November 2009 all applicants filed separate requests for the enforcement of the above judgment. 9. The Leskovac Municipal Court ultimately accepted the applicants’ requests and issued the enforcement orders, respectively. The essential information as to the enforcement proceedings in respect of each application is outlined in the Annex to this judgment. 10. On 25 January 2011 the Leskovac Commercial Court opened insolvency proceedings in respect of the debtor (St. 47/2010). 11. The applicants duly submitted their respective claims. 12. On an unspecified date the applicants’ claims based on the judgment of 18 April 2008 were formally recognised. 13. The insolvency proceedings against the debtor are still ongoing. 14. On 31 March 2010, the applicants lodged a constitutional appeal. 15. On 8 July 2013 the Constitutional Court dismissed the appeal in respect of all applicants except the applicants Ms Jagoda Jančić (application no. 62499/10), Mr Predrag Stamenković (application no. 63100/10) and Ms Stana Stanković (application no. 63137/10). 16. On 18 September 2013 the Constitutional Court also found a violation of the right to a hearing within a reasonable time, in respect of Ms Jančić, Mr Stamenković and Ms Stanković. It further awarded each of them 500 euros (EUR) as just satisfaction for non-pecuniary damage and ordered the court in Leskovac to expedite the proceedings. | 1 |
test | 001-178104 | ENG | LTU | ADMISSIBILITY | 2,017 | ŠPAKAUSKAS v. LITHUANIA | 4 | Inadmissible | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 1. The applicant, Mr Kastytis Špakauskas, is a Lithuanian national, who was born in 1975 and lives in Kaunas. He was represented before the Court by Mr D. Ramanauskas, a lawyer practising in Jurbarkas. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was born in 1975 and lives in Kaunas. 5. In January 1992 M.G. asked the national authorities to restore his property rights to a plot of land in Šakiai Region, that had originally belonged to his deceased wife’s father. He gave only his own name in his restitution request, failing to mention the fact that after his spouse’s death he had married again in 1976, to P.G., or that there were any other successors to whom the property rights could be restored. 6. M.G. died in November 1996. 7. On 17 August 1998 M.G.’s property rights were restored in respect of 3 hectares of land in Šakiai Region. The decision stated that M.G. had passed away and that it should be served on his heir. 8. In June 2008 P.G. authorised the applicant, who was the husband of M.G.’s granddaughter, to act on her behalf in the matter of the inheritance from M.G. and to represent her before the national authorities. 9. P.G. asked the Šakiai District Court to establish as a legal fact that she was the owner of M.G.’s property for the purposes of inheritance. The claim was signed by the applicant. During the proceedings before the Šakiai District Court, where the applicant was present, M.G.’s children contested P.G.’s right to inherit the property, including the plot of land. They argued that the land did not belong to M.G., but to his deceased wife’s father. Nevertheless, on 20 November 2008 the Šakiai District Court established as a legal fact that P.G. had become the owner of the property, including the plot of land in question, after M.G.’s death. 10. In February 2009 the applicant received a certificate which stated that P.G. had inherited M.G.’s property, including the land in question. 11. On 23 March 2009 P.G. sold the 3 hectares of land and associated buildings to the applicant and his wife for 30,000 Lithuanian litai (LTL – approximately 8,689 euros (EUR)) in total. The price of the land itself was LTL 10,000 (approximately EUR 2,896). 12. On 26 July 2010 a prosecutor started court proceedings and asked the Šakiai District Court to annul the order which had restored M.G.’s property rights, the part of M.G.’s will concerning the land and the purchase agreement on the grounds that M.G. had not had the right to seek the restoration of ownership of the land in question (see paragraphs 34-36 below). The applicant submitted that the prosecutor had missed the thirtyday time-limit for lodging such a complaint. 13. On 7 October 2011 the Šakiai District Court granted the prosecutor’s application in part. It annulled the property restitution order of 17 August 1998 and the parts of the will and purchase agreement concerning the land. As regards the time-limit, the court held that the prosecutor had started court proceedings on 26 July 2010. However, he had not received a letter about an act that was allegedly contrary to the public interest until 13 May 2010, when he had also had to ask for additional documents from the authorities, which he had only received on 23 June 2010. The court held that the timelimit had not been missed by much and decided that it was not an obstacle to examining the case on the merits. The court decided to apply the rules on restitution and to return the land to the State. The court held that M.G. had not had any property rights to restore because the land in question had belonged to his deceased wife’s father, while M.G., a widower at the time, had remarried in 1976, to P.G. That meant he had not fallen within the scope of persons to whom property rights could be restored in accordance with domestic law (see paragraphs 18, 20 and 22 below). The court noted that M.G. had failed to mention that he had remarried and an employee of the National Land Service confirmed that if M.G. had provided that information he would not have been able to claim the property. The court also noted that the applicant had been authorised to represent P.G. before the national authorities in the inheritance procedure and that his wife was one of M.G.’s granddaughters. He should therefore have known that restoring those property rights to M.G. had been unlawful. The court thus declared that the applicant and his wife were not acquirers of the property in good faith. 14. As a result of the decision of the Šakiai District Court (see paragraph 13 above), on 29 March 2012 the plot of land was returned to the State. 15. On 14 November 2012 title to 3 hectares of land was restored to V.J., one of the original owner’s heirs. The plot included the land in question, apart from 20 ares under the buildings owned by the applicant and his wife, which were excluded. The remaining 20 ares were restored to V.J. in the adjacent plot of land. 16. The applicant and his wife appealed, and on 29 November 2012 the Kaunas Regional Court upheld the decision of the court of first instance. It held that the applicant and his wife had acted in bad faith and that the guarantees for owners who had acquired property in good faith were not applicable. The applicant and his wife argued that the prosecutor had missed the time-limit of thirty days to lodge a complaint, but the court held that the prosecutor had only become aware of an act that was contrary to the public interest on 28 June 2010 and had started court proceedings on 26 July 2010. The time-limit had therefore not been missed. 17. On 5 March 2013 the Supreme Court dismissed an appeal on points of law by the applicant as not raising any important legal issues. 18. Article 2 of the Law on the Procedure and Conditions for the Restoration of Citizens’ Ownership Rights to Existing Real Property (Įstatymas „Dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų“), enacted on 18 June 1991 and amended on numerous occasions, provided that when the owner of property died, title could be restored to the person’s children, including adopted children, parents, including adoptive parents, or any surviving spouse. After the death of the former owner’s child, ownership rights could be restored to that person’s spouse or children if they were citizens and permanent residents of Lithuania. 19. On 15 November 1991, the Government approved Resolution no. 470 on the “Order for Execution of the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property” (Lietuvos Respublikos įstatymo „Dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų” įgyvendinimo tvarka), which provided that when the owner of property died, title could be restored to the person’s children, including adopted children, parents, including adoptive parents, or any surviving spouse, if they were citizens of Lithuania, had a document proving the citizenship and were permanent residents of Lithuania. 20. On 1 July 1997 the Seimas (the Lithuanian Parliament) enacted a new law on restitution, the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas – hereinafter “the Law on Restitution”), which repealed the 1991 law. Article 2 § 1 of the Law on Restitution provided that ownership of existing real property could be restored to a spouse, parents, including adoptive parents, and the children, including adopted children, of an owner who had died without making a will. It could also be restored to the spouse or children, including adopted children, of an owner’s deceased child, including an adopted child. 21. Article 19 § 1 of the Law on Restitution provided that decisions by the national authorities concerning the restitution of existing real property were subject to appeal within thirty days. 22. On 29 September 1997, the Government approved Resolution no. 1057 on the “Order for the Execution of the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property” (Lietuvos Respublikos piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymo įgyvendinimo tvarka), which provided that spouses who had not remarried had the right to have property rights restored to them if the marriage had ended because the owner of the property had died and the owner’s child was also dead (Point 3). 23. Article 25 § 1 of the Law on Land provided that agricultural land contained plots of land, that were used of could be used for producing agricultural products; plots of land that were built upon by the private houses and farm houses of the landowner, if they were not delimited as separate plots of land; yards; plots of land, suitable for transforming into agricultural land; plots of land that had buildings used for producing agricultural products and plots of forest approved by the Government, provided that they are not delimited as separate plots, as well as other nonagricultural plots of land that are in between the above mentioned plots of land. 24. Article 1.6 of the Civil Code establishes the presumption of knowledge of the law and provides that ignorance or insufficient understanding of laws does not absolve anyone of application of sanctions and does not justify the failure to comply with requirements of the law or inadequate compliance with them. This was confirmed by the Supreme Court (for example, decisions of 16 October 2006 (no. 3K-3-558/2006); 30 March 2007 (no. 3K-3-126/2007)). 25. The Supreme Court has held that laws are public and every responsible person can find out about his or her rights and obligations. Ignorance of laws and failure to show interest in one’s rights and obligations is unreasonable, and such person cannot justify him or herself that he or she does not know the law (for example, decisions of 22 October 2007 (no. 3K-3-384/2007); 14 March 2013 (no. 3K3146/2013); 19 March 2013 (no. 3K-3-174/2013)). 26. Article 1.80 of the Civil Code provides that any transaction that fails to comply with mandatory statutory provisions is null and void. When a transaction is declared null and void, each party is required to restore to the other party everything that he or she has received by means of that transaction (restitution). Where it is impossible to restore the assets received in kind, the parties are required to compensate each other in money, unless the law provides for other consequences as a result of the transaction’s being declared void. 27. Article 4.26 § 4 of the Civil Code provides that possession in bad faith comes about when an owner knew or ought to have known that he or she had no right to become the owner of a possession or that another person had more rights to the possession in question. 28. Article 4.95 of the Civil Code provides that an owner has the right to claim a possession when it is owned illegally by someone else. 29. According to Article 4.97 § 2 of the Civil Code, a person who acquired property in bad faith has the right to require the lawful owner to provide compensation for any necessary expenses incurred for the property in question from the time the lawful owner had the right to income from it. 30. The Supreme Court has held that a person who acquired property in bad faith has the right to require the lawful owner to provide compensation for any necessary expenses incurred for the property in question from the time the lawful owner had the right to income from it (see decision of 21 December 2009 (no. 3K-3-569/2009)). 31. Article 6.145 of the Civil Code provides that restitution is to take place where a person is bound to return to another person the property he has received either unlawfully or by error, or as a result of the transaction in which the property was received being annulled ab initio, or as a result of the obligation becoming impossible to perform because of force majeure. In exceptional cases, a court may modify the method of restitution or refuse restitution altogether where it would impose an undue and unfair burden on one party and, accordingly, bring undue advantage to the other party. 32. Article 6.153 of the Civil Code provides that third parties acting in good faith who in a transaction for valuable consideration acquire property subject to restitution can rely on that transaction against a person who claims restitution. Third parties acting in good faith who in a transaction without valuable consideration acquire property subject to restitution cannot rely on that transaction against a person who claims restitution if the timelimit for such a claim has not been exceeded by the latter. Any other actions performed in favour of a third party acting in good faith may be relied on against a person who claims restitution. 33. Article 6.245 § 1 of the Civil Code provides that civil liability is a pecuniary obligation by which one party has the right to require compensation and the other party has to pay compensation. 34. In accordance with Article 49 of the Code of Civil Procedure, prosecutors can bring a claim in order to protect the public interest in the cases established by law. 35. Article 31 § 1 (2) of the Law on Prosecution Service provides that a prosecutor, after having received a request or any other information about violations of state interests or persons’ rights, prepares documents necessary to start civil proceedings if the state proprietary interests had been breached and the authorities had not taken any actions to eliminate the violations. 36. The Supreme Court has held that the restoration of property rights is a public interest (for example, decisions of 24 April 2006 (no. 3K3242/2006); of 23 July 2007 (no. 3K-3-310/2007); 9 October 2009 (no. 3K-3-397/2009)). | 0 |
test | 001-172073 | ENG | RUS | CHAMBER | 2,017 | CASE OF YEVGENIY ZAKHAROV v. RUSSIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1944 and lives in Kaliningrad. 6. Until 1999 the applicant was married to Z. and was living with her in a state-owned flat which had been provided to Z.’s parents. The applicant was registered as living in that flat. 7. In 1999 the applicant and Z. divorced and the applicant moved in with his new partner, B. At that time he did not apply for deregistration from the flat which he had occupied with his former wife. Later Z. privatised that flat, and the applicant lost occupational right to it. 8. B. occupied a room in a three-room communal flat under a social tenancy agreement. The other two rooms were occupied by her neighbours. The applicant and B. lived together in that room for the following ten years. They never married and the applicant was not registered as living in the room. 9. In May 2009 B. died and her neighbours locked the applicant out of the flat. The local housing authority informed the applicant that he had to vacate the room, since he had no legal right to occupy it. 10. On 28 September 2009 the applicant instituted court proceedings against the local administration, seeking recognition of his right to occupy the room as B.’s family member. He submitted that he and B. had been living in the room as husband and wife since 1988, but that after her death her neighbours had locked him out of the room. He considered that despite the fact that he had not been married to B. and had not been registered as living in the room, he should be regarded as a member of her family who had acquired the right to occupy her room. In particular, he raised the following arguments: - he had shared a common household with B.; - he had paid for the maintenance of the room; - he had assumed the cost of B.’s burial; - he had no other housing: he could not return to the flat of his former wife Z. since she had become the owner of that flat and lived there with her new family; - on 8 September 2009 he had asked the authorities to deregister him from the flat of his former wife Z.; - since his eviction, he had been obliged to live in the school in which he was working as a night watchman. 11. The local administration submitted that the applicant had not been registered as living in B.’s room, he was not a member of B.’s family and, therefore, he had not acquired any right to occupy her room. 12. B.’s neighbours were invited to participate in the proceedings as third parties. They confirmed that between 1999 and 2009 the applicant had lived in the room with B. and had provided her with financial support. However, they considered that B.’s room should be allocated to them and not to the applicant, since there were six of them living in two rooms and they needed to upgrade their living conditions. 13. On 6 May 2010 the Leninskiy District Court (“the District Court”) of Kaliningrad granted the applicant’s claim with reference to Articles 69 and 70 of the Housing Code (see Relevant domestic law and practice below). The District Court established, in particular, that between 1999 and 2009 the applicant had cohabited with B. in the room in question, had shared a common household with her and had been removed from the register at his previous place of residence. The District Court considered that the above circumstances should be regarded as exceptional within the meaning of Article 69 of the Housing Code and that the applicant should therefore be regarded as a member of B.’s family who had acquired the right to reside in the room previously occupied by her. 14. The local administration did not appeal against the judgment of 6 May 2010. 15. The third parties appealed against that judgment to the Kaliningrad Regional Court (“the Regional Court”). They submitted that B. had on several occasions chased the applicant away. She had not applied to the authorities with a request to register him as living in her room, and had not asked that his name be added to the social tenancy agreement as a member of her family. The applicant had not paid any utility charges for the room and had been registered as living elsewhere until B.’s death. 16. On 22 September 2010 the Regional Court quashed the judgment of 6 May 2010 and dismissed the applicant’s claims. The relevant part of the decision of 22 September 2010 reads as follows: “When granting the claims of Mr Zakharov Ye. N. [the applicant], the court [the District Court] proceeded from the premise that there existed exceptional circumstances allowing it to recognise him as a member of Ms Brazhnikova’s [B.’s] family in accordance with Article 69 § 1 of the Housing Code. The Civil Chamber [of the Kaliningrad Regional Court] cannot agree with such a decision. The court [the District Court] established on the basis of the plaintiff’s and witnesses’ submissions that the plaintiff had lived together with Ms Brazhnikova L.P. [B.] since 1999 and had shared a common household with her. The above circumstances are not in themselves exceptional, in particular given that no irrefutable evidence had been submitted to the court to prove that Ms Brazhnikova L. P. had let Mr Zakharov live in the flat as a family member rather than as a temporary resident. Throughout the period in which he lived together with Ms Brazhnikova L.P., the plaintiff had been registered as living in house no. 6, Pionerskaya street in the village of Aleksandrovka in the Zelenogradskiy district. He asked to be removed from the register on 8 September 2009 after the death of Ms Brazhnikova and just before applying to the court. the court to recognise Mr Zakharov Ye. N. as a family member of the social tenant Ms Brazhnikova L.P. as well as acknowledging his right to occupy the flat in question. It follows that the court judgment should be quashed and a new decision should be taken dismissing those claims.” 17. On 3 March 2011 a judge of the Supreme Court of Russia (“the Supreme Court”) refused to refer the applicant’s application for supervisory review of the decision of 22 September 2010 to the Civil Chamber of the Supreme Court for examination, finding no grounds for such review and relying on the principle of legal certainty. | 1 |
test | 001-174422 | ENG | RUS | CHAMBER | 2,017 | CASE OF BAYEV AND OTHERS v. RUSSIA | 1 | Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Violation of Article 14+10 - Prohibition of discrimination (Article 14 - Discrimination) (Article 10 - Freedom of expression-{General};Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 6. The applicants were born in 1974, 1984, and 1977 respectively. The first and the third applicants live in Moscow, and the second applicant lives in Gryazy, Lipetsk Region. 7. The applicants are gay rights activists. They were each found guilty of the administrative offence of “public activities aimed at the promotion of homosexuality among minors” (публичные действия, направленные на пропаганду гомосексуализма среди несовершеннолетних). 8. On 3 April 2006 the Ryazan Regional Duma adopted the Law on Protection of the Morality of Children in the Ryazan Oblast, which prohibited public activities aimed at the promotion of homosexuality among minors. 9. On 4 December 2008 the Ryazan Regional Duma adopted the Law on Administrative Offences, which introduced administrative liability for public activities aimed at the promotion of homosexuality among minors. 10. On 30 March 2009 the first applicant held a static demonstration (“picket”, пикетирование) in front of a secondary school in Ryazan, holding two banners which stated “Homosexuality is normal” and “I am proud of my homosexuality”. He was charged with an administrative offence for doing so. 11. On 6 April 2009 the Justice of the Peace of Circuit no. 18 of the Oktyabrskiy District of Ryazan found the first applicant guilty of a breach of section 3.10 of the Ryazan Law on Administrative Offences. He was ordered to pay a fine of 1,500 Russian roubles (RUB, equivalent to about 34 euros (EUR)). On 14 May 2009 the Oktyabrskiy District Court dismissed the first applicant’s appeal. 12. On 30 September 2011 the Arkhangelsk Regional Assembly of Deputies passed amendments to the Law on Separate Measures for the Protection of the Morality and Health of Children in the Arkhangelsk Oblast. The amended law prohibited public activities aimed at the promotion of homosexuality among minors. 13. On 21 November 2011 the Arkhangelsk Regional Assembly of Deputies passed amendments to the Regional Law on Administrative Offences. The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality among minors. 14. On 11 January 2012 the second and the third applicants held a static demonstration in front of the children’s library in Arkhangelsk. The second applicant was holding a banner stating “Russia has the world’s highest rate of teenage suicide. This number includes a large proportion of homosexuals. They take this step because of the lack of information about their nature. Deputies are child-killers. Homosexuality is good!” The third applicant was holding a banner stating “Children have the right to know. Great people are also sometimes gay; gay people also become great. Homosexuality is natural and normal”; it went on to list the names of famous people who had contributed to Russia’s cultural heritage and were believed to be gay. Both applicants were arrested and escorted to the police station, where administrative offence reports were drawn up. 15. On 3 February 2012 the Justice of the Peace of Circuit no. 6 of the Oktyabrskiy District of Arkhangelsk found the second and the third applicants guilty of a breach of section 2.13 § 1 of the Arkhangelsk Law on Administrative Offences. The second applicant was ordered to pay a fine of RUB 1,800 (about EUR 45), and the third applicant was fined RUB 2,000 (about EUR 50). On 22 March 2012 the Oktyabrskiy District Court of Arkhangelsk dismissed both applicants’ appeals. 16. On 7 March 2012 the St Petersburg Legislative Assembly passed amendments to the Law on Administrative Offences in St Petersburg. The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality, bisexuality and/or transgenderism among minors; the same law introduced administrative liability for promotion of paedophilia. 17. On 12 April 2012 the third applicant held a demonstration in front of the St Petersburg City Administration, holding up a banner with a popular quote from a famous Soviet-era actress Faina Ranevskaya: “Homosexuality is not a perversion. Field hockey and ice ballet are.” He was arrested by the police and escorted to the police station, where an administrative offence report was drawn up. 18. On 5 May 2012 the Justice of the Peace of Circuit no. 208 of St Petersburg found the third applicant guilty of a breach of section 7.1 of the Law on Administrative Offences in St Petersburg. He had to pay a fine of RUB 5,000 (about EUR 130). On 6 June 2012 the Smolninskiy District Court of St Petersburg dismissed the applicant’s appeal. 19. On an unspecified date the first and the third applicants brought proceedings before the Constitutional Court of the Russian Federation. They challenged the compatibility of section 4 of the Law on Protection of the Morality and Health of Children in the Ryazan Oblast with the provisions of the Constitution, in particular with the principle of equal treatment and the freedom of expression enshrined in Articles 19 and 29 of the Constitution, and also the provisions of Article 55 § 3, setting out the conditions under which the constitutionally guaranteed rights and freedoms may be restricted. 20. On 19 January 2010 the Constitutional Court declared the complaint inadmissible, for the following reasons: “Section 14 § 1 of the Federal Law clearly sets out the responsibility of the State bodies of the Russian Federation to take measures for the protection of children from information, propaganda and activism which is harmful to their health and moral and spiritual development. ... The laws of the Ryazan Oblast “On protection of the morality of children in the Ryazan Oblast” and “On administrative offences” do not strengthen any measures which prohibit homosexuality or provide for its official censure; they do not contain signs of discrimination, and there is no indication in their intent of superfluous actions by the State bodies. It follows that the provisions being challenged by the appellants cannot be regarded as disproportionately restrictive of freedom of speech.” 21. On unspecified date the third applicant brought proceedings before the Constitutional Court of the Russian Federation. He challenged the compatibility of section 7 of the Law on Administrative Offences in St Petersburg with the Constitution. 22. On 24 October 2013 the Constitutional Court declared the complaint inadmissible, for the following reasons: “... It follows that the given prohibition, determined by the fact that such promotion is capable of harming minors by virtue of the age-specific features of their intellectual and psychological development, cannot be considered as permitting a limitation on the rights and freedoms of citizens exclusively on the basis of sexual orientation. ... However, this does not rule out a need to define – on the basis of a balancing exercise with regard to the competing constitutional values – the limits of the given individuals’ effective practice of their rights and freedoms, in order not to infringe the rights and freedoms of others. ... ’s actions with regard to the targeted and unchecked dissemination of generally accessible information were capable of causing harm to the health and moral and spiritual development of minors, including creating a distorted impression of the social equivalence of traditional and non-traditional marital relations, does not come within the competence of the Constitutional Court of the Russian Federation; nor does verification of the lawfulness and validity of the judicial decisions issued in the appellant’s case.” 23. On 29 June 2013 the Code of Administrative Offences of the Russian Federation was amended, introducing in Article 6.21 administrative liability for the promotion of non-traditional sexual relations among minors. 24. On an unspecified date the third applicant and two other persons brought proceedings before the Constitutional Court of the Russian Federation. They challenged the compatibility of Article 6.21 of the Code of Administrative Offences with the provisions of the Constitution. 25. On 23 September 2014 the Constitutional Court examined the complaint on the merits and dismissed it, for the following reasons: “... Citizens’ enjoyment of the right to disseminate information concerning the question of an individual’s sexual self-determination ought not to infringe the rights and freedoms of others; in regulating of this right by means of legislation, it is necessary to ensure that a balance is struck between the values protected by the Constitution. Consequently, bearing in mind the sensitive nature of such questions, since they belong to the sphere of individual autonomy, and without encroaching on its very essence, the State is entitled to introduce, on the basis of the above-mentioned requirements of the Constitution of the Russian Federation, specific restrictions on activities linked with the dissemination of such information if it becomes aggressive [and] importuning in nature and is capable of causing harm to the rights and legal interests of others, primarily minors, and is offensive in form. ... In so far as one of the roles of the family is [to provide for] the birth and upbringing of children, an understanding of marriage as the union of a man and a woman underlies the legislative approach to resolving demographic and social issues in the area of family relations in the Russian Federation... Regulation of freedom of speech and the freedom to disseminate information does not presuppose the creation of conditions which would facilitate the formation of other interpretations of the family as an institution, and the associated social and legal institutions, which would differ from the generally accepted interpretations nor society’s approval of them as being equivalent in value... These aims also determine the need to protect the child from the influence of information that is capable of causing harm to his or her health or development, particularly information that is combined with an aggressive imposition of specific models of sexual conduct, giving rise to distorted representations of the socially accepted models of family relations corresponding to the moral values that are generally accepted in Russian society, as these are expressed in the Constitution and legislation. ... In order to ensure the child’s healthy development, States are required, in particular, to protect the child from all forms of sexual exploitation and sexual perversion. ... The aim pursued by the federal legislature in establishing the given norm was to protect children from the impact of information that could lead them into non-traditional sexual relations, a predilection for which would prevent them from building family relationships as these are traditionally understood in Russia and expressed in the Constitution of the Russian Federation. The Constitutional Court of the Russian Federation acknowledges that the possible impact on the child’s future life of the information in question, even when delivered in a persistent manner, has not been proven beyond doubt. Nonetheless, in assessing the necessity of introducing one or another restriction, the federal legislature is entitled to use criteria that are based on the presumption that there exists a threat to the child’s interests, especially as the restrictions introduced by it concern only the tendency of the information in question to target persons of a given age group, and cannot therefore be regarded as excluding the possibility of exercising one’s constitutional right to freedom of information in this area. ... The prohibition on public activities in relation to minors is intended to prevent their attention being increasingly focused on issues concerning sexual relations, which are capable, in unfavourable circumstances, of deforming significantly the child’s understanding of such constitutional values as the family, motherhood, fatherhood and childhood, and adversely affecting not only his or her psychological state and development, but also his or her social adaptation. The fact that this ban does not extend to situations concerning the promotion of immoral conduct in the context of traditional sexual relationships, which may also require State regulation, including through [the existence of] administrative offences, is not grounds for finding that the given norm is incompatible with the Constitution of the Russian Federation from the perspective of infringing the principles of equality as applied to the protection of Constitutional values, which ensure the uninterrupted replacement of generations ... The imposition on minors of a set of social values which differ from those that are generally accepted in Russian society, and which are not shared by and indeed frequently perceived as unacceptable by parents – who bear primary responsibility for their children’s development and upbringing and are required to provide for their health and their physical, psychological, spiritual and moral development – ... may result in the child’s social estrangement and prevent his or her development within the family, especially if one considers that equality of rights as set out in the Constitution, which also presupposes equality of rights irrespective of sexual orientation, does not yet guarantee that persons with a different sexual orientation are actually regarded in equal terms by public opinion; this situation may entail objective difficulties when trying to avoid negative attitudes from individual members of society towards those persons on a day-to-day level. This is also true for instances where the very information that is banned from dissemination to minors may be intended, from the disseminator’s perspective, to overcome such negative attitudes towards persons with a different sexual orientation... The prohibition on the promotion of non-traditional sexual relationships does not in itself exclude the information in question from being presented in a neutral (educational, artistic, historical) context. Such transmission of information, if it is devoid of indications of promotion, that is, if it is not aimed at creating preferences linked to the choice of non-traditional forms of sexual identity and ensures an individualised approach, taking into account the specific features of the psychological and physiological development of children in a given age group and the nature of the specific issue being clarified, may be conducted with the help of experts such as teachers, doctors or psychologists. ... does not signify a negative appraisal by the State of non-traditional sexual relationships as such, and is not intended to belittle the honour and dignity of citizens who are involved in such relationships... ... cannot be regarded as containing official censure for non-traditional sexual relationships, in particular homosexuality, far less their prohibition... ... the person [disseminating information] must understand that what appears to him or her as the straightforward provision of information may, in a specific situation, resemble activism (promotion), if it is shown that the aim was to disseminate (or especially to impose) information with the above-mentioned content. At the same time, only intentional commission by a person of the corresponding public activities, directly targeted at promoting non-traditional sexual relations among minors, or intentional commission of these actions by a person who was fully aware that there could be minors among those receiving the information, is punishable...” | 1 |
test | 001-158867 | ENG | GBR | ADMISSIBILITY | 2,015 | WHITE AND GANGAR v. THE UNITED KINGDOM | 4 | Inadmissible | George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev | 1. The applicant in the first case, Mr Alan White, is a British national, who was born in 1958. His current address has not been notified to the Court. He was represented before the Court by Mr Mark Davies of Frisby & Co., a firm of solicitors practising in Stafford. The second applicant, Mr Shinder Singh Gangar, is a British national who was born in 1961. His current address has not been notified to the Court. He was represented before the Court by Janes Solicitors, a firm of solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Ruth Tomlinson, of the Foreign and Commonwealth Office. 2. On 22 October 2012 the applicants’ complaint concerning the length of criminal proceedings only was communicated to the Government. 3. The applicants, who were both accountants, were partners in the firm Dobbs White. In October 1998 the Financial Services Authority (“FSA”) began investigating the firm. This investigation found that there had been no violation of the Banking Act 1987. In January 2000 the FSA began a second investigation which was subsequently transferred to the Serious Fraud Office (“SFO”) and which formed the basis for criminal charges that followed in 2005. 4. In January 2001 the SFO and the Money Laundering Investigation Team (“MLIT”) raided the offices of Dobbs White, as well as the second applicant’s home, and seized documents. The applicants were subsequently arrested on suspicion of money laundering and granted bail. In October 2002 the SFO carried out a second raid, following which they arrested both applicants on suspicion of conspiracy to defraud. Both applicants were granted bail. 5. In November 2002 the MLIT charged the applicants with money laundering. 6. In March 2003 the SFO carried out a third raid, following which both applicants were arrested on suspicion of conspiracy to corrupt. They were again granted bail. 7. The applicants’ trial in relation to the 2002 money laundering charge was due to commence in September 2003. However, following an application by the MLIT an adjournment was granted and the trial was postponed until September 2004. On 17 September 2004 Her Honour Judge Faber, sitting in Wood Green Crown Court, stayed the prosecution on grounds of abuse of process by reason of a disbelief that the prosecution would honour their disclosure obligations and a violation of the reasonable time guarantee contained within Article 6 § 1. 8. On 13 October 2005 the SFO charged both applicants with conspiracy to defraud and conspiracy to corrupt in connection with an alleged bribe. It was the prosecution’s case that after 2002 the applicants had developed in the United Kingdom a Ponzi scheme referred to as the “Dobbs White” scheme. The value of the alleged fraud was put at over USD 200 million. Both applicants were granted bail. 9. In February 2006 the prosecution provided a case summary to the applicants and on 31 March 2006 His Honour Judge Stokes fixed a trial window for Easter 2007. At the same time the second applicant was remanded in custody and later sentenced to five months’ imprisonment for breaching his bail conditions. He was released in November 2006 as the SFO had failed to extend the custody time limits. 10. On 21 November 2006 Mr Justice Langstaff (Langstaff J) set a firm trial date for 8 May 2007. However, at the same time nearly all defence counsel withdrew citing other professional commitments. A new defence team was subsequently appointed. 11. In December 2006 and March 2007 the prosecution made two late and substantial disclosures of further evidence, consisting of thousands of pages. 12. On 19 March 2007, an application was made jointly by the prosecution and the new defence team to postpone the trial as neither side considered that the case could be made ready in time for the original trial date. The defence sought an adjournment until October 2007. A limited postponement of eight weeks was granted until 3 July 2007. 13. In early June 2007 the applicants dismissed their legal representatives, alleging certain deficiencies in the quality of the service they provided. The applicants then sought to transfer their representation orders. This was required to enable the applicants to instruct new representation whilst continuing to benefit from publicly funded legal advice and assistance. On 12 June 2007 the judge refused. Later, following a written application and oral submissions, for which the applicants were assisted by counsel, the judge indicated that he might transfer the representation order. However, one of the requirements of new leading counsel was that the trial be pushed back again to January 2008. The judge again refused as he considered that the applicants had not given a good reason for dismissing their previous representation. 14. The applicants’ trial began on 3 July 2007 and lasted for more than seven months. At the beginning of the trial, the applicants made an outoftime application to Langstaff J to stay the proceedings as an abuse of process arguing a breach of the Article 6 § 1 reasonable-time requirement. In a decision dated 12 July 2007 Langstaff J found that the period of unexplained delay between the beginning of proceedings, deemed to be summer 2004, and the date of the formal charge on 13 October 2005, had amounted to a breach of the reasonable-time requirement. 15. In determining the start date of proceedings, Langstaff J had noted that in October 2003, the SFO investigation was on-going and that no decision had been made whether to bring charges against the applicants; that at some time between late 2003 and 2004 a decision had however been made; that in summer 2004 it had been “indicated” and notified to the applicants that they would probably face charges; and that summer 2004 was therefore, the relevant date for Article 6 § 1 purposes. He explicitly rejected the applicants’ assertion that the relevant time period for the purposes of Article 6 had commenced any earlier. In particular, Langstaff J found that the charges on which the applicants faced trial were sufficiently different to the earlier money-laundering charges, so that the relevant time period did not extend to incorporate those charges; that if the reasonabletime period necessarily began running the moment there had been an arrest, an investigation or a seizure of documents, such might incline the authorities to take precipitant haste in deciding whether or not to bring charges; that the authorities should take care not to hastily charge an individual where such would be unjustified; and that a proper distinction should be drawn between an investigation and a decision to prosecute, at which time the individual concerned would be duly informed. Langstaff J also concluded that there was no other period of unreasonable delay in the applicants’ case, having regard to the complexity of the case and the conduct of the parties. He determined that the appropriate remedy for the identified breach was not a stay of the indictment: rather that it should be taken into account when deciding the question of costs in the event of acquittal, or by taking it into account at the time of sentence in the event of a conviction. 16. At the close of the prosecution case, the applicants renewed their Article 6 § 1 abuse-of-process submissions to Langstaff J. In a decision promulgated on 19 December 2007, he upheld his previous decision of 12 July 2007. 17. On 22 February 2008 the applicants were convicted by a jury, on a majority verdict, of conspiracy to defraud and conspiracy to corrupt. 18. On 11 April 2008 both applicants were sentenced to sevenandahalf years’ imprisonment. Langstaff J noted that the maximum sentence available for a conviction of conspiracy to defraud was ten years’ imprisonment and that the offence committed by the applicants fell towards the top of that tariff. The maximum sentence available on the conspiracytocorrupt conviction was seven years’ imprisonment. Although Langstaff J found that the corruption offence had a close relationship to the defraud offence, it was not “part and parcel” of it. Therefore, a separate penalty was required. Considering however the period of some fifteen months’ unreasonable delay in the course of the case (during which time the applicants had been at liberty), the period of “effective custody” to which the applicants had been subjected during the length of the trial, and the fact that there was no previous involvement in like offending, a sentence of six years in respect of the conspiracy to defraud and one and a half years consecutive in respect of the conspiracy to corrupt was imposed. 19. The applicants sought leave to appeal their conviction to the Court of Appeal. They argued that their conviction was unsafe because, inter alia, the trial judge had refused to transfer the representation order. The applicants’ grounds of appeal did not contain any Article 6 § 1 abuseofprocess submissions and did not seek to challenge the trial judge’s finding with regard to the commencement of proceedings for the purposes of the reasonable-time requirement. The application for permission to appeal was refused on 7 July 2009 following an oral hearing, on the ground that the request for a change of representation order was not reasonable and that the judge had been entitled to find same. 20. Meanwhile, on 22 February 2008, following conviction, confiscation proceedings were brought against both applicants. On 1 April 2009 all parties to the proceedings agreed that the applicants had each benefited by over GBP 60 million. Contested hearings took place in October 2009 and June 2010. Provisional judgment was given on 2 July 2010 and an amended and finalised judgment was handed down on 28 July 2010. In respect of the first applicant, a confiscation order was made in the sum of GBP 1,166,339 to be paid within eighteen months, with a sentence in default of five years’ imprisonment. In respect of the second applicant, a confiscation order was made in the sum of GBP 2,758,416 to be paid within an unknown period of time, with a sentence in default of six years’ imprisonment. 21. Both applicants sought leave to appeal those orders. Permission to appeal was granted to argue the specific point of the realisable value of jointly held assets and refused on all other grounds. The applicants pursued an application for leave to appeal on unparticularised additional grounds. That application and the appeal on the ground for which leave had been granted were considered at one hearing held on 22 and 23 May 2012. 22. On 21 June 2012 the Court of Appeal refused leave to appeal on the additional grounds argued. Furthermore, in considering the appeal before it, the court concluded that the orders made were wrong insofar as they were based upon treating the jointly held assets as one hundred percent available to each of the applicants. The appeals were allowed to the limited extent of repairing the identified error. The previous orders were quashed and substitute orders made. In respect of the first applicant, a confiscation order was made in the sum of GBP 686,996.81 to be paid within eighteen months, with a sentence in default of three and a half years’ imprisonment. In respect of the second applicant, a confiscation order was made in the sum of GBP 2,289,074.03 to be paid within an unknown period of time, with a sentence in default of six years’ imprisonment. 23. In Attorney General’s Reference (No 2 of 2001) [2004] 2 A.C. 72, HL, the majority in the House of Lords considered the implications of Article 6 on the question whether a prosecution should be stayed by reason of delay alone. Lord Bingham, delivering the majority judgment, stated: “24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time. 25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right.” 24. Lord Bingham concluded that: “(1) Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the Convention only if (a) a fair hearing is no longer possible, or (b) it is for any compelling reason unfair to try the defendant.” 25. That approach was followed by the Court of Appeal in Altaf v The Crown Prosecution Service, West Midlands [2007] EWCA Crim. 691, in which Moses LJ said: “A breach of the defendant’s right to have a criminal charge determined within a reasonable time, contrary to Article 6(1) of the Convention, will not necessarily require criminal proceedings to be stayed. It will only be appropriate to stay or dismiss proceedings if there can no longer be a fair hearing or it will otherwise be unfair to try the defendant ... Once there has been a conviction, this court should only quash that conviction if the hearing has proved to be unfair, or it was unfair to try the defendant at all.” 26. Where an abuse of process is alleged, the burden of establishing that the bringing or the continuation of criminal proceedings amounts to an abuse of the court’s process is on the accused: R v Telford Justices ex parte Badhan [1991] 2 Q.B. 78; R v Great Yarmouth Magistrates ex parte Thomas [1992] Crim. L.R. 116. As a general principle of domestic United Kingdom law, it will normally be necessary to prove not only that an abuse has taken place but that the accused has been prejudiced in the presentation of his or her case as a result, so that a fair trial is no longer possible. As Lord Woolf LCJ said in the Court of Appeal hearing in Attorney General’s Reference (No 2 of 2001) [2004] 2 A.C. 72, HL: “... if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is an appropriate remedy. But in the absence of prejudice of that sort, there is normally no justification for granting a stay.” 27. In the context of confiscation proceedings, in R v Shabir [2008] EWCA Crim 1809 the Court of Appeal held that: “22. Once the Crown decides to invoke the confiscation process, the making of an order is mandatory, and its amount is arithmetically determined but can be moderated by judicial decision. [...] 23. The court retains the jurisdiction to stay an application for confiscation, as any other criminal process, where it amounts to an abuse of the court’s process. In the present context, that power exists where it would be oppressive to seek confiscation, or to do so on a particular basis. [...] 24. This jurisdiction must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the Judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic.” 28. In the case of R v P [2008] EW Misc 2 (EWCC) the applicant, having been convicted of criminal offending, had confiscation proceedings initiated against him. Moreover, he was subject to a restraint order which related to funds the Crown Prosecution Service believed could constitute the proceeds of criminal activity. Until a judicial determination had been made as to the source of those funds, the applicant was unable to employ them for the purposes of securing legal representation. The alternative was to rely upon state legal aid funding. HHJ Mole QC however accepted that, not least owing to the complexity of the case, if the applicant were to rely on the State legal aid fund, there was no prospect of him being able to engage properly qualified and competent counsel so as to ensure a fair trial. HHJ Mole QC therefore stayed the confiscation proceedings as an abuse of process. | 0 |
test | 001-177426 | ENG | AZE | COMMITTEE | 2,017 | CASE OF ARIF ISLAMZADE AND OTHERS v. AZERBAIJAN | 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) | Nona Tsotsoria;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 non-enforcement of domestic decisions. | 1 |
test | 001-179613 | ENG | TUR | ADMISSIBILITY | 2,017 | SADAY v. TURKEY | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano | 1. A list of the applicants is set out in the appendix. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants are the wife, children, parents and siblings of Orhan Saday, who died on 31 January 2008 as the result of an explosion in an unlicensed fireworks workshop operating in Zeytinburnu, a district of Istanbul. It appears that twenty other people lost their lives in the same explosion, and that some 115 people were injured. 5. On the same day the Bakırköy public prosecutor’s office initiated an investigation of its own motion into the incident. Accordingly, evidence was collected from the accident site, including photographic and forensic evidence, and an incident report was prepared. The Bakırköy public prosecutor’s office also commissioned two expert reports, one involving a chemical analysis of the substances collected from the accident site (“the first expert report”), and the other concerning the establishment of the circumstances of and responsibility for the explosion, including any responsibility on the part of any State officials (“the second expert report”). 6. On 4 February 2008 a lawyer from the Istanbul branch of the Contemporary Lawyers’ Association lodged a criminal complaint, in the name of that association, against various public officials in connection with the explosion. 7. The first expert report, which was added to the investigation file on 17 March 2008, concluded that most of the samples obtained from the accident site contained barium nitrate, a highly toxic and explosive chemical substance. 8. The second expert report was added to the investigation file on 31 March 2008. The report, which contained very detailed findings based on an examination of the forensic evidence and statements given to the police by a number of witnesses, found that – under the relevant regulations – the following persons and authorities had been responsible for the accident: - S.B., the owner of the workshop, had been 2/10 responsible for the explosion, on account of his failure to comply with various licensing and security requirements provided by the relevant legislation; - Istanbul Metropolitan Municipality and Zeytinburnu Municipality had each been 3/10 responsible, mainly on account of their failure to fulfil their respective licensing and inspection duties, as specified in the relevant legislation; - the electricity distribution company BEDAŞ (Boğaziçi Elektrik Dağıtım Anonim Şirketi) had been 1/10 responsible on account of having supplied electricity to a building which did not possess an occupancy permit; - the Ministry of Labour and Social Security had been 1/10 responsible, on account of having failed to inspect the workshop, in which uninsured workers had been employed. 9. Having regard to the findings of the experts and the criminal complaint lodged by the Contemporary Lawyers’ Association (see paragraph 6 above), and in compliance with the mechanism set out under Law no. 4483 (the Law on the Prosecution of Civil Servants and Public Officials) for the prosecution of civil servants, the Istanbul public prosecutor’s office sought authorisation from the competent authorities for the prosecution of a number of public officials. 10. After conducting its own examination into the matter, on 21 November 2008 the Istanbul Governor’s Office refused to authorise the prosecution of the former District Governor of Zeytinburnu (S.C.) and the Security Director of Istanbul (C.C.). It held that these authorities had been under no obligation to take action in respect of the workplace at issue, given that no irregularities had been brought to their attention by other organs, such as local municipalities, which had been responsible for inspecting that workplace. It appears that the applicants were not able to lodge an objection in respect of this decision, as it was not served on them. 11. On 15 September 2009 the Istanbul public prosecutor’s office issued a decision not to prosecute S.C. and C.C., in accordance with the decision of the Istanbul Governor’s Office. 12. On an unspecified date the applicants’ representative lodged another criminal complaint against S.C. and C.C. Referring to its previous decision of 15 September 2009, on 12 November 2009 the Istanbul public prosecutor’s office issued, once again, a decision not to prosecute. The applicants lodged an objection to that decision; this was rejected by the Beyoğlu Assize Court on 25 December 2009. 13. On 15 April 2011 the Ministry of the Interior – relying on the findings of an internal investigation (conducted by one of its own inspectors) into the respective responsibilities of the mayor of Istanbul Metropolitan Municipality (K.T.) and the mayor of Zeytinburnu Municipality (M.A.) in respect of the incident – decided not to grant permission for their prosecution. According to the findings of the Ministry inspector, the licensing and inspection of the workplace at issue had been outside the scope of the duties of Istanbul Metropolitan Municipality. Moreover, those officials from Zeytinburnu Municipality who had been responsible for the licensing and inspection of the workshop had indeed undertaken such an inspection, but since the owner had not declared that he was engaged in the production of pyrotechnic articles, such as fireworks, they had had no reason to take any measures against the workshop. The applicants lodged an objection against that decision. 14. On 25 November 2011 the Supreme Administrative Court dismissed that objection in so far as it concerned K.T., but it accepted it in so far as it concerned M.A., holding that under the relevant legislation, it was his municipality that had been responsible for licensing and inspecting the workplace in question. The Supreme Administrative Court therefore granted permission for his prosecution. 15. Accordingly, the Istanbul prosecutor’s office issued a decision not to prosecute in respect of K.T. Nevertheless, an investigation was launched by the Zeytinburnu public prosecutor’s office into whether or not M.A. had been responsible; that investigation resulted in a decision not to prosecute M.A. on account of a lack of evidence indicating negligence or misconduct on his part in connection with the incident. The applicants lodged an objection against that decision. 16. On 15 March 2012 the Istanbul Assize Court upheld that objection and annulled the decision not to prosecute M.A. 17. Upon receipt of the prosecution request from the Bakırköy public prosecutor’s office, an internal investigation was conducted at Istanbul Metropolitan Municipality into the responsibilities of current and former licence inspection directors of Istanbul Metropolitan Municipality (Y.P., F.K. and T.A.), which found that the licensing and inspection of the production of the explosive material in question was outside the scope of the duties of Istanbul Metropolitan Municipality. 18. Accordingly, on 16 January 2009 the Istanbul Governor’s Office refused to authorise the prosecution of Y.P., F.K. and T.A.; on 11 June 2009 the Istanbul Regional Administrative Court dismissed an objection lodged by the Bakırköy prosecutor’s office against that decision, as the objection had been lodged outside the statutory time-limit. 19. Following a request by the Bakırköy public prosecutor’s office for the prosecution of the Zeytinburnu Municipality personnel who had been in charge of the overseeing and inspection of the workplace at issue, the Zeytinburnu District Governor’s Office carried out a preliminary examination in respect of the following Zeytinburnu Municipality personnel: three zoning and urban development directors (Ş.Y., H.K. and S.K.); the licensing and inspection director (R.T.); the licence inspection and finance director (H.O.); and the municipal police director (F.K.). By a decision dated 30 December 2008, the Zeytinburnu District Governor’s Office decided not to grant permission for the prosecution of these individuals, on the grounds that they had not been at fault or been negligent in respect of the occurrence of the explosion. 20. The Bakırköy public prosecutor’s office lodged an objection against that decision; on 11 March 2009 the Istanbul Regional Administrative Court revoked the decision of the District Governor’s Office and granted permission for the prosecution of the persons in question. The Administrative Court held that there was enough material in the case file to justify an investigation into whether the Zeytinburnu Municipality personnel in question had been responsible for the explosion. 21. It appears from the submissions of the Government that the Bakırköy public prosecutor’s office also sought permission for the prosecution of A.T., the former director of the Istanbul Regional Labour Office, which was attached to the Ministry of Labour and Social Security. While the Istanbul Governor’s Office initially refused permission for the prosecution of A.T., that decision was subsequently overturned by the Istanbul Regional Administrative Court on 11 June 2010. 22. After obtaining administrative authorisation (idari izin) for the prosecution of the public officials in question, the Bakırköy public prosecutor’s office issued three separate bills of indictment in respect of the incident. 23. The first bill of indictment was filed on 28 October 2009 against the Zeytinburnu Municipality personnel Ş.Y., H.K., S.K., F.K. and R.T. (see paragraph 19 above), the owners of the building in question (Res. K. and Rem. K.), and H.A. (one of the employees of the workshop in question). All suspects were accused of causing death and bodily harm through negligence under Article 85 § 2 of the Turkish Criminal Code. The Zeytinburnu Municipality personnel were also accused of misconduct in office (görevi kötüye kullanma) under Article 257 § 1 of the Criminal Code. 24. The second bill of indictment was filed on 28 July 2010 in respect of A.T., the director of the Istanbul Regional Labour Office (see paragraph 21 above), under Articles 85 § 2 and 257 § 2 of the Criminal Code. 25. The third bill of indictment was filed on 29 June 2012 against M.A., the mayor of Zeytinburnu (see paragraph 16 above), under Article 85 § 2 of the Criminal Code. 26. The proceedings in respect of the incident were held before the Bakırköy Assize Court, which joined the three cases. During the course of the proceedings, statements from some eighty-five people were taken by the court as victims or complainants. The court also took many witness statements and examined all evidence collected during the preliminary investigation (such as photographs and video footage, autopsy reports, Forensic Medicine Institute reports, on-site examination reports, internal investigation reports issued by the public bodies concerned and other expert reports). It also ordered its own expert report from a group of experts consisting of six university professors and engineers, and also requested information and documents from all the public authorities concerned in relation to the circumstances that had led to the explosion at issue. 27. Relying on all the information and evidence before it, and having regard to the jurisprudence of the European Court of Human Rights on the matter (as established in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004XII), on 14 July 2014 the Bakırköy Assize Court delivered its judgment, which contained the following findings: - it found the Zeytinburnu Municipality personnel F.K. and R.T. guilty as charged and sentenced them each to seven years and six months’ imprisonment; - it found the Zeytinburnu Municipality personnel S.K. and Ş.Y. guilty as charged, sentenced them each to four years and two months’ imprisonment, and in both cases converted that sentence to a judicial fine of 30,400 Turkish liras (TRY) (approximately 10,535 euros (EUR) at the material time); - it found the Zeytinburnu Municipality employee H.K. guilty as charged, sentenced her to two years and six months’ imprisonment, and converted that sentence to a judicial fine of TRY 18,200 (approximately EUR 6,300 at the material time); - it found the building owners Res. K. and Rem. K. guilty as charged, and sentenced them each to five years’ imprisonment; - it acquitted the mayor of Zeytinburnu Municipality (M.A.) and the former director of the Istanbul Regional Labour Office (A.T.); and - it acquitted H.A., an employee of the workplace in question. 28. An appeal was lodged against the judgment of the Bakırköy Assize Court. According to the latest information in the case file, the appeal proceedings are still pending before the Court of Cassation. 29. On an unspecified date in 2008 the applicants brought an action for compensation in the Istanbul Administrative Court against the Ministry of the Interior, the Ministry of Labour and Social Security, Istanbul Metropolitan Municipality, Zeytinburnu Municipality and BEDAŞ. They requested a total of TRY 185,000 in respect of pecuniary damage and TRY 250,000 in respect of non-pecuniary damage. 30. Relying on the evidence in the criminal case file, together with an expert report that it commissioned to ascertain the damage incurred by the applicants, on 22 June 2011 the Istanbul Administrative Court found that Istanbul Metropolitan Municipality and Zeytinburnu Municipality had been jointly and severally liable for the incident in question. It awarded the applicants TRY 138,203.35 (approximately EUR 59,950) in respect of pecuniary damage and TRY 180,000 (approximately EUR 78,000) in respect of non-pecuniary damage, plus interest. 31. On 26 September 2012 the Supreme Administrative Court quashed that judgment upon an appeal lodged by all parties. It held that while only Istanbul Metropolitan Municipality and Zeytinburnu Municipality had been found responsible for the incident, the information and documents in the case file suggested that the remaining three respondents had also been at fault. 32. On 28 January 2014 the Supreme Administrative Court dismissed a request lodged by all five respondents for the rectification of its decision. 33. The Istanbul Administrative Court ordered a new expert report to determine the respective liabilities of the respondents; the report found that all the respondents had been responsible for the accident to some degree. Accordingly, on 28 October 2015 the administrative court ordered the payment of the amounts it had previously determined (see paragraph 30 above) jointly and severally by the five respondents. 34. An appeal was lodged against the judgment of the Istanbul Administrative Court. According to the latest information in the case file, the appeal proceedings are still pending before the Supreme Administrative Court. 35. The relevant provisions of the Turkish Criminal Code are as follows: Article 85 “(1) Anyone who negligently causes the death of another shall be sentenced to a term of imprisonment of between two and six years. (2) If the act results in the death of more than one person, or injury to more than one person together with the death of one or more persons, the offender shall be sentenced to a term of imprisonment of between two and fifteen years.” Article 257 “(1) ... any public officer who secures an unjust financial benefit for another or causes any loss to the public or to an individual by acting contrary to the requirements of his office shall be sentenced to a term of imprisonment of between six months and two years. (2) ... any public officer who secures unjust financial benefit for another or causes any loss to the public or an individual through omission or delay in the performance of his duties shall be sentenced to a term of imprisonment of between three months and one year.” 36. Detailed information regarding Law no. 4483 on the Prosecution of Civil Servants and Public Officials may be found in the cases of M. Özel and Others v. Turkey (nos. 14350/05 and 2 others, § 133, 17 November 2015) and Aydoğdu v. Turkey (no. 40448/06, §§ 37-39, 30 August 2016). | 0 |
test | 001-144123 | ENG | DEU | CHAMBER | 2,014 | CASE OF GRAY v. GERMANY | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 6. The applicants are brothers. Mr Stuart Gray (the “first applicant”) lives in Blakedown, United Kingdom, whereas Mr Rory Gray (the “second applicant”) lives in Darmstadt, Germany. 7. The applicants are the sons of the late David Gray (hereinafter referred to as “Mr Gray” or “the deceased”) who died in the evening of 16 February 2008 at the age of 71 at his home in Cambridgeshire, United Kingdom. 8. Mr Gray suffered from kidney stones and from 2004 on he had regularly been attended at home by his doctor, a General Practitioner (“GP”) working for the United Kingdom’s National Health Service (“NHS”) which is represented at local level by NHS Primary Care Trusts (“PCTs”), in the instant case by Cambridgeshire NHS Primary Care Trust (“Cambridgeshire PCT”). The GP had routinely administered injections of opiates, in particular pethidine at a dosage of 100mg, for pain relief. On several occasions between 2006 and 2008 Mr Gray had recourse to out-of-hours medical services by “Take Care Now” (“TCN”), a private agency that recruits locum doctors within the United Kingdom or from abroad to supply out-of-hours medical care for several PCTs, including the Cambridgeshire PCT. Out-of-hours services concern the periods outside business hours of GP surgeries on weekdays as well as weekends and bank holidays. 9. Since TCN clinicians do not routinely carry pethidine, the deceased had on some of these occasions been injected with 10mg doses of the opiate diamorphine, contained in a sealed palliative care box TCN doctors were provided with for the purpose of home visits at that time. Such palliative care boxes were stocked with 10mg and 30mg vials of diamorphine for acute pain relief together with a much larger ampoule of 100mg intended for patients receiving palliative care. Attached to each box was a list of the drugs contained as well as a form with instructions for doctors, and inside a document that listed the relative potencies of the drugs. 10. On Saturday 16 February 2008 Mr Gray developed a severe renal colic. In the afternoon his partner contacted the TCN call centre to arrange for an urgent home visit by a doctor. She explained Mr Gray’s medical history to the TCN clinician who carried out the first telephone triage consultation and specified what medication Mr Gray had received on the occasion of previous home visits. The case was then assigned to doctor U., a German national, who had recently been recruited by TCN through an agency on a self-employed basis to provide out-of-hours care. U., at the time aged 65, had qualified as a doctor in Germany in 1972 where he was practising as an aesthetic surgeon but where he was also formally qualified as a GP. For the purpose of working as a locum doctor in the United Kingdom he had obtained registration with the British General Medical Council (GMC) in 2006 and had applied to be admitted to one of the Medical Performers Lists maintained by each of the local PCTs. Once a GP is admitted to a PCT’s Performers List he may work in the area of any other PCT in England. U. had withdrawn a first application to join Leeds Performers List after being notified that he had not reached a sufficient score in the required English language test. However, the Cornwall and Isles of Scilly PCT authorities, unaware that U. had already tried to register with another PCT, approved a subsequent application and admitted him to their Performers List in July 2007 without verifying his English language skills. 11. U. arrived in the United Kingdom on Friday, 15 February 2008 for his first shift as a locum doctor scheduled for the coming weekend. According to an induction report established by a TCN doctor on 15 February 2008 there had not been sufficient time to assess U.’s professional competence prior to his first assignment the next day. 12. U. attended Mr Gray at his home in the late afternoon of 16 February 2008. He was told by Mr Gray and his partner that in similar situations in the past he had either received injections of 100mg of pethidine for acute pain relief or, where the out-of-hours services did not carry pethidine, had been treated with diamorphine. U. administered 100mg of diamorphine from the respective ampoule included in the palliative care box by intramuscular injection. Some two hours after U. had left, Mr Gray’s partner realised that he was no longer breathing and called an ambulance. The attending emergency services confirmed that Mr Gray had died. The police was informed and attended on-site. 13. On Sunday 17 February 2008 TCN suspended U. from duty, terminated his engagement with immediate effect and advised him to return to Germany where he arrived the following day. Subsequently, two other incidents were reported where U. on the occasion of home visits on 16 February 2008 had failed to administer the appropriate medical treatment. 14. On 29 February 2008 U. returned to London to attend a hearing before the GMC in connection with the incidents on 16 February 2008. By an order of the same date, the GMC suspended the applicant from the British medical register on an interim basis. 15. On 4 March 2008 U. informed the competent public health authorities at the Arnsberg District Government (Bezirksregierung), Germany, and by letter of 11 March 2008 his German professional indemnity insurance company of the incident. He explained that when treating the deceased he had committed a grave mistake with fatal outcome that had resulted from the confusion between the drugs pethidine and diamorphine, the latter being a drug not used by on-call services in Germany and with which he had been unfamiliar. On the day of the incident he had further been overtired following his journey from Germany to the United Kingdom and had found himself in a tremendous stress situation. 16. By a letter of 17 April 2008 in reply to a complaint lodged by the first applicant following his father’s death, TCN confirmed that U. had satisfied the requirements generally expected from locum doctors working for the TCN and had completed the compulsory induction process all clinicians had to undergo before they could be assigned to clinical shifts. 17. A post mortem report issued on 25 June 2008 by a forensic pathologist in the United Kingdom established as the cause of Mr Gray’s death diamorphine poisoning in association with alcohol intoxication as well as hypertensive heart disease and myocardial fibrosis. The report further stated that the diamorphine injection had more than minimally contributed to the death and that in view of the large dose administered there was no need to necessarily invoke the additional effect of alcohol in causing death. 18. By a letter of 10 July 2008 to the deceased’s partner and the first applicant, U. apologised for the medical malpractice in connection with the deceased’s treatment and again explained that he had confused the opiates and referred to the stress situation he was subject to when making the mistake. 19. On 8 August 2008 the applicant attended a further hearing before the GMC in London where his suspension from the medical register was confirmed. 20. Following Mr Gray’s death the Cambridgeshire police commenced criminal investigations against U. for manslaughter by gross negligence. 21. On 5 March 2008 Cambridgeshire Constabulary, through Interpol London, made an application for assistance to the German Federal Office of Criminal Investigation (Bundeskriminalamt) requesting in particular the supply of data with respect to U.’s personal record and past professional career. The request was forwarded to the competent Bochum police department which provided the Cambridgeshire police with the requested information and documentation by mid-March 2008. 22. On 21 April 2008 the English Crown Prosecution Service (CPS) sent a formal letter of request to the Ministry of Justice of the Land North RhineWestphalia, Germany, in accordance with the European Convention on Mutual Assistance in Criminal Matters 1959, requesting assistance in obtaining information with respect to U.’s medical qualifications and the authenticity of the related certificates submitted by him to the British authorities when applying to be admitted as a locum doctor. The letter gave a short summary of the circumstances of Mr Gray’s death and specified that while no criminal proceedings had yet been instigated in the United Kingdom, the offence investigated constituted manslaughter, i.e. the unlawful killing of a human being, an offence contrary to Common Law and punishable on conviction by a term of life imprisonment. The CPS asked the German authorities to carry out the respective investigations and to arrange for hearings of the relevant witnesses in Germany in the presence of representatives of Cambridgeshire Constabulary. 23. The request was forwarded by the North Rhine-Westphalia Ministry of Justice to the Hamm General Prosecution Authorities (Generalstaatsanwaltschaft) as well as to the locally competent Bochum prosecution authorities. By a decision of the Bochum Chief Public Prosecutor (Oberstaatsanwalt) of 6 June 2008 the request for assistance was granted and by letter of the same date the Bochum police department was informed accordingly and invited to provide the requested assistance and to coordinate any future investigation measures with Cambridgeshire police. 24. Simultaneously, the Bochum Chief Public Prosecutor ex officio initiated preliminary criminal proceedings (Ermittlungsverfahren) against U. in Germany under file no. 49 Js 174/08 on suspicion of having negligently caused the death of Mr Gray pursuant to Article 152 § 2 of the German Code of Criminal Procedure in conjunction with Articles 222 and 7 § 2 no. 1 of the German Criminal Code (see Relevant domestic and international law and practice below). In a letter of the same date the Chief Public Prosecutor instructed the Bochum police to conduct the necessary investigations also in respect of the domestic preliminary proceedings, in particular to interview the suspect U., who was represented by counsel. He further explicitly invited Bochum police to permit the presence of English police officers also on the occasion of such interview. 25. In accordance with the letter of request dated 21 April 2008, Cambridgeshire police officers visited Germany on several occasions in the period from July until September 2008 and were provided with assistance by the German police in their investigations against U. The investigations focussed on the authenticity of the certificates U. had submitted to the English health authorities as evidence of his medical qualifications as well as on the question whether U.’s treatment of the deceased had amounted to medical malpractice. At the request and in the presence of officers of Cambridgeshire police, German police officers heard, inter alia, representatives of U.’s professional indemnity insurance company, of the public health authorities at the Arnsberg District Government and the Westphalia-Lippe Medical Association (Ärztekammer) as witnesses. The originals of the protocols of the witness hearings conducted as well as the material obtained in the course of the investigations were handed over to Cambridgeshire police. On 10 July 2008 German and British police officers visited U. at his surgery in Witten, Germany, and informed him that criminal investigations were pending against him in Germany and the United Kingdom. U. availed himself of his right not to testify. He also declined a subsequent request by the Cambridgeshire police to be interviewed in the United Kingdom. 26. Furthermore, at the request of the Cambridgeshire Constabulary a forensic expert opinion was obtained from a professor of Essen university hospital on the question whether the treatment of the deceased by U. had complied with medical standards. The expert established his report on the basis of the information contained in the Cambridgeshire police’s investigation files. He presented his preliminary findings to representatives of Cambridgeshire Constabulary on the occasion of one of their visits to Germany in September 2008. In his final report issued on 18 September 2008 the expert confirmed that the cause of Mr Gray’s death had been an overdose of diamorphine. He pointed out that notwithstanding the fact that the therapeutical use of diamorphine was in general not permitted in Germany and therefore doctors in Germany were as a rule not trained in its use, U. had not sufficiently investigated the cause of Mr Gray’s acute pain and had not verified whether the medication administered and its dosage had been an appropriate therapy under the circumstances. The expert concluded that U.’s treatment of the deceased had thus been inadequate and had violated basic principles of medical care. 27. According to a file note by a Bochum police officer of 23 September 2008, the Cambridgeshire police, for their part, had provided their German counterparts upon request with certain documents for use in the preliminary proceedings conducted against U. in Germany, namely with the post mortem report of 25 June 2008 as well as protocols of statements made by Mr Gray’s partner following the latter’s death. 28. By a letter of 1 October 2008 counsel for the second applicant practising in Germany informed the Bochum prosecution authorities that his client was the son of a patient who had possibly been killed by U. on 16 February 2008 through medical malpractice. Counsel asked for information whether preliminary criminal proceedings were pending against U. and, should this be the case, requested access to the relevant investigation files. By a letter of 23 October 2008 counsel for the second applicant reiterated his request for information whether preliminary proceedings had been instituted against U. Pursuant to a file note by the Bochum public prosecution authorities dated 30 October 2008 counsel was informed about the pending preliminary proceedings and forwarded copies of excerpts of the investigation file such as the forensic expert opinion of 18 September 2008 and the letter of March 2008 by which U. had notified the incident to his professional indemnity insurance company. 29. By a letter dated 6 November 2008, Cambridgeshire Constabulary, referring to a telephone conversation of the previous day, requested the German public prosecution authorities to assure that no criminal proceedings would be instituted against U. in Germany prior to finalisation of the investigations in the United Kingdom and that none of the information gathered in the course of the investigations carried out jointly by German and British police officers on the occasion of their visits to Germany would be disclosed to U., Mr Gray’s relatives or their respective counsel. According to a file note by the Bochum public prosecution authorities of 5 November 2008, the German prosecution authorities had informed Cambridgeshire Constabulary in reply to a similar request made over the phone that day that they had been obliged by operation of law to institute preliminary criminal proceedings against U. in Germany and that they were also obliged under German criminal procedure to grant counsel for the accused as well as counsel for the victim’s relatives acting as joint plaintiffs to the prosecution (Nebenkläger) the right to inspect the files in such preliminary proceedings. 30. On 6 November 2008, German counsel for the second applicant, referring to the preliminary proceedings conducted under file no. 49 Js 174/08 against U., transmitted the latter’s apology letter of 10 July 2008 to the deceased’s partner and the first applicant as well as the TCN’s letter to the first applicant dated 17 April 2008 to the Bochum prosecution authorities for inclusion in the investigation file. 31. On 27 February 2009 an arrest warrant was issued against U. by the Huntingdon Magistrates’ Court, Cambridgeshire. On 12 March 2009 the Colchester Magistrates’ Court issued a European Arrest Warrant (”EAW”) against U. for allegedly having caused the death of Mr Gray with an overdose of morphine. 32. On the same day, 12 March 2009, the Bochum Chief Public Prosecutor ordered that the preliminary criminal proceedings against U. be terminated and applied to the Witten District Court for a penal order (Strafbefehl) to be issued against U. convicting him of having caused Mr Gray’s death through negligence pursuant to Article 222 of the Criminal Code and imposing a suspended prison sentence of 9 months as well as a payment of 5,000 euros (EUR) to the treasury. A draft of the penal order was attached to the application. Following previous discussions with the public prosecution authorities, U., represented by counsel, had declared that he would accept the envisaged sentence. 33. The Chief Public Prosecutor’s assessment of the facts of the case and U.’’s statements following the incident, the post mortem report of 25 June 2008, the forensic expert opinion of 18 September 2008, the explanatory letter by TCN to the first applicant of 17 April 2008, U.’s notification to his professional indemnity insurance company dated 11 March 2008 as well as his apology letter to the deceased’s family of 10 July 2008. The Chief Prosecutor found that while the fact that U. did not have a criminal record, had made a full confession and had apologised to the victim’s relatives had to be considered in his favour and notwithstanding the fact that an ampoule with a fatal dose of morphine had been included in the care box, U. had nevertheless committed a grave error in the deceased’s treatment and had thus violated basic principles of the medical profession. 34. On 13 March 2009 the EAW was forwarded by the British authorities to the German Federal Office of Criminal Investigation. 35. By email of 17 March 2009 the Cambridgeshire police asked the Bochum public prosecution authorities for information about the procedure to be followed by the German authorities after transmission of the EAW. In their reply of the same day the Bochum public prosecution authorities specified that the Hamm General Prosecutor (Generalstaatsanwalt) was the competent authority to deal with questions regarding U.’s extradition and pointed out that extradition might be hindered on the ground that criminal proceedings were also pending against U. in Germany. On the occasion of a phone call later the same day Cambridgeshire police was informed by the Hamm General Prosecution authorities that execution of the EAW was halted in view of the criminal proceedings pending against U. in Germany in accordance with section 83b (1) of the Act on International Cooperation in Criminal Matters (see Relevant domestic and international law and practice below). 36. On 20 March 2009 the Witten District Court issued the penal order (file no. 49 Js 174/08) against U. as applied for by the prosecution authorities. By a decision of the same day, the District Court determined that the probation period for U. was two years starting from the date the penal order became final. 37. By a letter dated 23 March 2009 the CPS asked the Ministry of Justice of the Land of North Rhine-Westphalia for information why the EAW had not yet been executed and for clarification whether any criminal or other proceedings were conducted, pending or envisaged against U. in Germany as well as for copies of related court decisions. 38. By fax dated 14 April 2009 newly appointed counsel for the second applicant practising in Germany asked the Bochum prosecution authorities for information whether the preliminary proceedings against U. had meanwhile been terminated and whether a bill of indictment had been issued. Counsel further asked for information whether a possible trial was to be conducted in Germany or in the United Kingdom. He finally requested to be granted access to the files in the proceedings under file no. 49 Js 174/08. It follows from a subsequent letter by counsel dated 19 May 2009 that his request for inspection of the files was granted. However, it is not clear on what date between 14 April and 19 May 2009 counsel actually obtained access to the file. 39. On 15 April 2009, no appeal having been lodged by U., the penal order of 20 March 2009 became final in accordance with Article 410 of the German Code of Criminal Procedure (see Relevant domestic and international law and practice below). 40. By written submissions dated 6 May 2009 the Hamm General Prosecution Authorities (Generalstaatsanwaltschaft) requested the Hamm Higher Regional Court (Oberlandesgericht) to declare U.’s extradition to the United Kingdom inadmissible since U. had been convicted by final decision of a German court for the offence underlying the extradition request and the sentence imposed upon him was currently in the process of being executed. His extradition would therefore be contrary to the ban on double jeopardy as reflected in section 9 (1) no. 1 of the Act on Cooperation in Criminal Matters as well as Article 3 no. 2 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JI) (see Relevant domestic and international law and practice below). 41. By a decision of 14 May 2009 the Hamm Higher Regional Court, endorsing the reasoning of the Hamm General Prosecution Authorities, declared U.’s extradition inadmissible. 42. By a letter of 27 May 2009 the Hamm Chief Prosecutor communicated the Higher Regional Court’s decision to the Colchester Magistrates’ Court in Chelmsford, United Kingdom. 43. By a letter of the same day the Bochum Chief Public Prosecutor, in reply to the CPS’s information request of 23 March 2009, explained that he had been obliged by operation of domestic law to instigate criminal investigations against U. after having learned of the circumstances of Mr Gray’s death through the CPS’s request for assistance dated 21 April 2008. He specified that the domestic proceedings had meanwhile been terminated and that U. had been convicted by a final decision of the Witten District Court for having negligently caused Mr. Gray’s death. A copy of the related penal order of 20 March 2009 was attached to the letter. 44. On 1 July 2009 a meeting between the representatives of the Bochum prosecution authorities, the CPS and Cambridgeshire police took place at Eurojust in The Hague with a view to providing explanations on the conduct of the criminal investigations and proceedings in Germany. The content of these discussions is confidential. 45. In August 2009 and April 2010 counsel for the second applicant was again granted access to the files in the terminated criminal proceedings against U. under file no. 49 Js 174/08. 46. As a consequence of the German authorities’ decision not to extradite U., the criminal investigations in the United Kingdom were discontinued. 47. After U. had informed the Arnsberg District Government of Mr Gray’s death in March 2008, the competent District health authorities commenced investigations regarding U.’s fitness to practice as a doctor (approbationsrechtliches Verfahren). Within the scope of their investigations the health authorities, inter alia, conducted interviews with U. on two occasions in March 2009 and November 2010 with a view to clarifying the circumstances of the incidents of 16 February 2008 and with a view to examining U.’s fitness to practice in general. Furthermore, at the applicants’ request a meeting was arranged between them and representatives of the Arnsberg District Government on 27 48. Following completion of their investigations by the end of 2010 the health authorities, considering U.’s professional conduct over the last 30 years in Germany, the fact that he had committed himself to refrain from practising medicine abroad in the future and taking into account the particular circumstances under which U.’s medical malpractice had occurred, found that there was nothing to establish that U. would commit a similar error of treatment in Germany or that he lacked the necessary qualifications for practising medicine. Consequently, the health authorities held that there was no need to suspend or revoke U.’s licence to practice medicine in Germany and discontinued the proceedings regarding U.’s fitness to practice. 49. By written submissions of 15 April 2010 the Westphalia-Lippe Medical Association applied for the opening of disciplinary proceedings against U. for breach of his professional duties in connection with the incidents in the United Kingdom on 16 February 2008. 50. By a decision dated 27 April 2011 of the competent Münster Administrative Court sitting in a special formation as disciplinary jurisdiction for the healthcare professions (Berufsgericht für Heilberufe) U. was reprimanded for having disregarded the standards of the medical profession on the occasions of three patient consultations on 16 February 2008 in the United Kingdom, in particular for having committed a grave error in the treatment of Mr Gray, and fined him 7,000 EUR. The decision became final on 4 June 2011. 51. A number of further investigations and proceedings were instituted in the United Kingdom following Mr. Gray’s death. An Inquest into the circumstances of the incident was held by the Cambridgeshire Coroner from 14 January to 4 February 2010. The latter not only returned the verdict that the deceased had been unlawfully killed as a consequence of the inadequate treatment administered by U. but also pointed explicitly to the deficiencies in the recruitment, training and supervision of foreign locum doctors in the United Kingdom. These deficiencies were at the origin of a subsequent report by the Coroner to the Secretary of Health and resulted in investigations by the House of Commons Health Committee as well as in an independent inquiry by the Care Quality Commission, a public body overseen by the Department of Health, which came to similar conclusions as the Inquest and identified related shortcomings in the British health system. Moreover, on the occasion of proceedings conducted by the General Medical Council regarding U.’s fitness to practice in the period from 2 to 18 June 2010, the circumstances of Mr Gray’s death were further investigated and additional evidence from expert witnesses and the deceased’s next of kin was considered. The GMC Fitness to Practice Panel considered that U. had breached several of the basic principles of good medical practice and decided to formally strike U.’s name from the medical register in the United Kingdom. In addition, in 2009 the applicants brought civil claims for damages for unlawful killing arising out of negligence with the High Court against U., TCN as well as Cambridgeshire PCT in the United Kingdom. The applicants’ compensation claims were settled with respect to all three defendants by consent orders of December 2009, January and August 2010. | 0 |
test | 001-173103 | ENG | AUT | CHAMBER | 2,017 | CASE OF KRASNIQI v. AUSTRIA | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1974 and lives in Kosovo. 6. The applicant entered Austria for the first time on 14 January 1994 when he was 19 years old. 7. In November 1994 the applicant was arrested for working illegally, and on 16 November 1994 the Dornbirn District Administrative Authority (Bezirkshauptmannschaft) issued a decision imposing a five-year residence ban (Aufenthaltsverbot) on him. 8. On 5 January 1995 the applicant lodged an asylum claim, which on 27 January 1995 was dismissed by the Federal Asylum Office (Bundesasylamt) as unfounded. His appeal against that decision was dismissed, and he voluntarily returned to Kosovo in September 1997. 9. On 1 July 1998 the applicant returned to Austria and lodged a fresh asylum claim on 8 July 1998, this time together with his wife and their daughter. The asylum claim was dismissed by the Federal Asylum Office on 12 August 1998, but the applicant and his family were granted subsidiary protection. They received a temporary residence permit, which was extended several times. 10. The applicant’s temporary residence permit, which was based on his right to subsidiary protection, expired in December 2009, as he had not applied for its renewal. 11. On 2 March 2003 the Dornbirn District Court (Bezirksgericht – hereinafter “the District Court”) convicted the applicant of bodily harm and sentenced him to a fine of 350 euros (EUR), suspended in part on the basis of a probationary period. 12. On 29 August 2003 the Feldkirch Regional Court (Landesgericht – hereinafter “the Regional Court”) convicted the applicant of bodily harm. He was sentenced to a fine of EUR 400, which was suspended on the basis of a probationary period. 13. On 30 October 2003 the Regional Court convicted the applicant of aggravated burglary and sentenced him to twelve months’ imprisonment, eight and a half months of which were suspended on the basis of a probationary period. He was in pre-trial detention and then prison from 28 July to 11 November 2003. 14. On 26 July 2004 the Regional Court convicted the applicant of participating in a brawl, for which he was sentenced to a fine of EUR 720. 15. On 17 January 2006 the District Court convicted the applicant of bodily harm and sentenced him to a fine of EUR 600. 16. On 13 March 2007 the Regional Court convicted the applicant of several offences under the Drugs Act (Suchtmittelgesetz) and aggravated threat, and he was sentenced to ten months’ imprisonment. The suspension of the eight and a half months’ imprisonment in the sentence of 30 October 2003 (see paragraph 13 above) was revoked. The applicant was in prison from 23 May until 12 November 2007. A part of the prison sentence was postponed until 18 November 2009, when the applicant started serving the remainder of the sentence. 17. On 21 January 2010, hence while he was in prison, the Regional Court convicted the applicant of an offence under the Drugs Act and sentenced him to a fine of 400 EUR. 18. On 12 May 2010 the Bregenz District Court convicted the applicant, who was still in prison at that time, of attempted bodily harm, bodily injury caused by negligence, and endangering the physical integrity of others, and sentenced him to a fine. 19. On 2 August 2012 the Regional Court convicted the applicant of aggravated threat and sentenced him to seven months’ imprisonment. It was his ninth criminal conviction in Austria. 20. On 13 September 2007, as a consequence of his criminal convictions, the Dornbirn District Administrative Authority issued the applicant with a ban prohibiting his return to Austria (Rückkehrverbot, see paragraph 33 below), which was valid for ten years. It however remained without effect as long as his subsidiary protection status was still valid (see paragraph 34 below). The Vorarlberg Security Police Authority (Sicherheitspolizeidirektion) confirmed the ban in a decision of 5 November 2007. The applicant did not appeal against that decision. 21. On 29 March 2010 the Innsbruck Federal Asylum Office instituted proceedings to withdraw the applicant’s subsidiary protection. On 7 April 2010 it conducted an interview with him, during which he stated the following concerning his living situation in Austria. He had four children, born in 1997, 1999, 2000 and 2006 respectively. His parents, his three siblings and their spouses and children all lived in the same city as him. His parents and his older brother were recognised refugees. He and his parents lived in the same house. He was working as a maintenance man and translator for Albanian and German, and his wife was also working. Both had a regular income. His father still owned some land and three shops in Kosovo, which were run by relatives at that time. The applicant stated that if he had to return to Kosovo he would not know what to do there or where to go. He had a “bad feeling” about returning, but did not fear any repression. The security situation was bad, and the views of society were primitive. His wife and children would not have to fear any problems upon returning to Kosovo, and would probably join him if he were expelled. He would, however, prefer to stay in Austria, where his children went to school. 22. On 17 May 2010 the Federal Asylum Office withdrew the applicant’s subsidiary protection status under section 9 (1) of the Asylum Act (Asylgesetz). It found that there was no longer a risk of a violation of the applicant’s rights under Article 2 or 3 of the Convention if he was returned to Kosovo, and declared his expulsion admissible. Quoting international sources, it explained that the security situation in Kosovo had significantly improved in recent years and was now considered to be stable. There was no threat from the Kosovo Liberation Army (Ushtria Çlirimtare e Kosovës) anymore, which the applicant had initially alleged when applying for asylum. 23. Turning to the applicant’s rights under Article 8 of the Convention, the Federal Asylum Office acknowledged how established his private and family life was in Austria, where his family members were living. However, it referred to his numerous convictions for crimes against life and limb as well as property, and concluded that the public interest in his expulsion outweighed his personal interest in remaining in the country. The Federal Asylum Office specifically mentioned the two convictions for drug offences in 2007 and 2010, which it considered particularly serious. Further, it held that the applicant still had ties with Kosovo, because he had grown up there, spoke Albanian, and was physically capable of working in order to earn a living. According to the applicant’s own statements, his father still owned some land and three shops in Kosovo, so it could be assumed that he could find work. Given that the applicant’s wife had her own income, the Federal Asylum Office further assumed that she would be able to take care of the needs of the family, and that the applicant could send her financial maintenance from Kosovo. 24. On 27 June 2011 the Asylum Court (Asylgerichtshof) confirmed the relevant parts of the Federal Asylum Office’s decision. It held that, according to Article 19 § 3 in conjunction with Article 37 § 1 of the Criminal Code (Strafgesetzbuch), the fines the applicant had received for his criminal convictions (1460 daily rates in total), amounted to almost twentyfour months’ imprisonment (see paragraphs 35-36 below). The actual prison sentences he had received amounted to twenty-two months in total, which was considerable. The Asylum Court concluded that, even though the applicant had strong private and family ties in Austria, the public interest in his expulsion in order to prevent crime outweighed his personal interest in continuing his family life in Austria. He had reoffended even after he had been issued with the ban prohibiting his return to Austria, a fact which did not speak in his favour. Also, he could reapply for a residence permit in 2017 when the ban expired. 25. The applicant lodged a complaint against that decision with the Constitutional Court. Among other things, he stated that one of his daughters had in fact been born as a result of an extra-marital relationship with an Austrian citizen, and was living with her Austrian mother and not with him. The applicant claimed that it would be difficult to maintain contact with her if he were expelled to Kosovo. 26. The Constitutional Court then asked the Asylum Court to submit a statement regarding this new fact. The Asylum Court replied on 13 September 2011 that the applicant had spoken of four children throughout the proceedings, but had never mentioned that one of them had in fact been born as a result of an extra-marital relationship and had never lived with him in the same household. He could continue to pay financial maintenance from Kosovo for his daughter. The Asylum Court expressed the view that the decision to declare the applicant’s expulsion admissible was nonetheless proportionate to the aims pursued, as his family life with his illegitimate daughter was in any event much less established than that with his other family members. 27. On 14 December 2011 the Constitutional Court refused to deal with the applicant’s complaint. That decision was served on the applicant’s counsel on 9 January 2012. 28. The applicant was in pre-trial detention and prison from 1 June 2012 (in relation to the criminal conviction of 2 August 2012, see paragraph 19 above) until he was placed in detention pending his expulsion on 4 January 2013. 29. On 5 January 2013 the applicant was expelled to Kosovo. His family decided to remain in Austria. 30. The ban on the applicant’s returning to Austria is in force until 16 November 2017. | 0 |
test | 001-152987 | ENG | RUS | CHAMBER | 2,015 | CASE OF ZHEBRAILOVA AND OTHERS v. RUSSIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 4. The applicants are: (1) Ms Isita (also spelled as Yisita) Zhebrailova, born in 1956; (2) Mr Shuddi Vakhayev, born in 1954, and (3) Mr Salavdi Zhebrailov, born in 1980. 5. The first and second applicants are the parents of Mr Balavdi (also spelled as Balauddi) Zhebrailov, born in 1982. The third applicant is Mr Balavdi Zhebrailov’s brother. The applicants reside in the village of Gekhi, the Chechen Republic. 6. At about 12 midnight on 25 April 2005 a group of four men wearing uniforms and armed with assault rifles burst into the applicants’ property at 23 Pervomayskaya Street in Gekhi. Two of the intruders were wearing masks. The applicants inferred that the intruders were law-enforcement officers. The men ordered the applicants to lie down and grabbed hold of Mr Balavdi Zhebrailov and the third applicant, who was in his underwear. They then dragged them outside, firing several shots in the air to prevent the first and second applicants, as well as their relatives L.Sh. and Kh.A., from following them. The men threw the Zhebrailov brothers into a UAZ vehicle with a beacon on the roof and marked “police” (милиция), which was parked about 300 metres away from the applicants’ house, and drove off. 7. On the outskirts of Gekhi, Mr Balavdi Zhebrailov and the third applicant were transferred from the UAZ vehicle to a VAZ-99 vehicle driven by officer S. of the 2nd Regiment of the Road Police of the Ministry of the Interior of the Chechen Republic (hereinafter “the 2nd regiment”). The VAZ-99 vehicle took the road leading to Grozny and on the journey the men physically assaulted the Zhebrailov brothers. After a while the car passed through a checkpoint and Mr Balavdi Zhebrailov and the third applicant were taken to the premises of the 2nd regiment. The third applicant recognised the premises because he had come there two months earlier with a friend to apply for a job. 8. Upon arrival the Zhebrailov brothers were put in a cell in a basement, beaten with rifle butts and interrogated about a pistol. After a while they were separated and the third applicant was placed in a cell with another arrestee of about forty years old. From his cell the third applicant could hear Mr Balavdi Zhebrailov screaming whilst being beaten. 9. Shortly thereafter the persons, whom the applicants considered to be officers of the 2rd regiment, returned and physically assaulted the third applicant, saying that Mr Balavdi Zhebrailov had confirmed that the third applicant had a pistol and threatening to take the latter to the military base in Khankala. They kicked and beat the third applicant all over his body and also hit him several times on the head with a rifle butt. Sometime later they dragged the third applicant outside, gave him police trousers and a shirt belonging to his brother and pushed him into a grey UAZ vehicle equipped with a partition for prisoners’ transport. The car carrying the third applicant and two police officers passed through a checkpoint and after a short time stopped in the vicinity of the “northern market” in Grozny, where the third applicant was released. The third applicant then went to the home of an uncle of his who lives in Grozny, from where the third applicant’s relatives took him home on the morning on 26 April 2005. 10. Upon his return home, the third applicant had numerous bruises on his chest, back and legs and also wounds on his head, sustained as a result of the blows with the rifle butt. 11. On 26 April 2005 the third applicant’s relatives took him to the local hospital. While queuing there, the third applicant spotted one of his abductors, officer S. of the 2nd regiment. Fearing reprisals, the applicants immediately left, without obtaining medical assistance. At home the third applicant was treated by a family friend Z., a nurse. She bandaged his head and gave him medication. As a result of the ill-treatment the third applicant could barely walk. He had to stay at home for a week. 12. The applicants have had no news of Mr Balavdi Zhebrailov since his abduction. 13. In support of their account of events, the applicants furnished written statements by L.Sh. and Kh.A. dated 12 and 14 December 2006, and detailed written statements by the first to third applicants dated 5 May and 12 December 2006, 17 January 2007, and 7 January, 15 and 30 March 2010. 14. The Government submitted that the national investigation had established that on the night of 25/26 April 2005, unidentified armed men in camouflage uniforms had burst into the applicants’ property and had abducted Mr Balavdi Zhebrailov and the third applicant. The abductors had assaulted the third applicant and then released him. 15. The Government submitted some 280 pages from criminal case-file no. 47041 which was opened to look into the events of 26 April 2005. The submitted documents covered the period from April 2005 to December 2009. Many of the documents furnished by the Government were incomplete, such as witness statements submitted only in part. Some documents were illegible. The relevant information may be summarised as follows. 16. The local police were informed of the abduction of the Zhebrailov brothers at 2 a.m. on 26 April 2005. At about 2.15 a.m. on the same day a group of police officers arrived at the applicants’ property. They inspected the crime scene, seized a bullet cartridge found during their inspection and interviewed eight eyewitnesses, including the applicants. The interview records and police officers’ reports referred to the fact that the abductors had worn camouflage uniforms, carried assault rifles, used a UAZ vehicle ‒ with a beacon and a muddied licence plate bearing the inscription “Grozny” ‒ as well as a VAZ-99 vehicle with blackened windows and licence plate number “862”, and had fired shots into the air. In the third applicant’s interview record, he described in detail the circumstances of the abduction and the ensuing events, including his alleged ill-treatment. He also explicitly stated that he and his brother had been detained at the 2nd regiment’s premises and stressed that the men who had interrogated them and assaulted them had not concealed that they belonged to the police. 17. On 20 June 2005 the Urus-Martan district prosecutor’s office (hereinafter “the district prosecutor’s office”) instituted a criminal investigation into the events of 25-26 April 2005 under Article 126 § 2 of the Criminal Code (aggravated kidnapping). 18. On 27 June 2005 the first applicant was granted victim status in case no. 47041. 19. The ballistic examination of the bullet cartridge seized at the crime scene, carried out on 30 June 2005, established that the bullet could have been shot by an AK-47 assault rifle and that the gun could be identified. 20. In the ensuing period between June 2005 and December 2009 the investigators mainly re-interviewed the individuals questioned by the police on 26 April 2005. They also questioned some further witnesses ‒ residents of Gekhi ‒ some of whom confirmed the applicants’ account of events; others stated that they had learnt about the abduction from the applicants. The third applicant’s uncle, R.Zh., interviewed in September 2007, stated that when the third applicant had arrived at his home in Grozny on the morning of 26 April 2005, his head had been covered in blood. When interviewed as a witness in October 2009, Z. stated that after the third applicant’s return home in April 2005, she had treated him for wounds to his head and had given him pain-killing injections. 21. The investigation in case no. 47041 was suspended in August 2005, March 2006, September 2007, November 2009 and on the latest occasion on 4 March 2010. Supervising prosecutors repeatedly set aside those decisions, ordering the investigation to be resumed and pointing to the investigators’ failure to take a number of important steps. For instance, on 26 January 2006, 21 August 2007 and then again, as late as on 23 October 2009, the supervising prosecutors pointed out the investigators’ failure to inspect the premises of the 2nd regiment and verify the allegation of the involvement of its officers in the crime with the participation of the third applicant, in spite of his specific assertions that he had been detained on those premises and that the regiment officers had not concealed that they belonged to the police. The investigators, who had on various dates forwarded several information requests to local law-enforcement agencies to verify those allegations, were instructed to resume the proceedings and take the necessary steps. From the documents submitted it is unclear whether the requested steps were taken. 22. The investigation in case no. 47041 is still pending. 23. On 23 April 2007 the Urus-Martan District Court dismissed as unfounded the applicants’ complaint that the investigation had been ineffective and that the investigators’ had refused to allow the applicants access to the case file. The court stated that the investigators had taken all possible investigative steps and that the applicants’ arguments concerning the procrastination of the investigation were not convincing. 24. On 14 February 2006 the investigators granted the third applicant victim status in criminal case no. 47041 and ordered his medical examination. 25. Expert report no. 152 of 20 February 2006 stated that the third applicant had two scars on the top of the head, which could have been sustained in April 2005 as a result of the impact of a blunt, firm object. 26. On 1 March 2006, in the light of the expert’s findings, the investigators also classified the abductors’ acts under Article 116 § 1 of the Criminal Code (application of physical force to another person, causing physical pain but not resulting in health damage). | 1 |
test | 001-148655 | ENG | ITA | COMMITTEE | 2,014 | CASE OF D'ASTA v. ITALY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | András Sajó;Helen Keller;Robert Spano | 4. The applicants were born in 1923, 1959 and 1963, respectively, and live in Casteltermini. 5. The applicants are the joint owners of a plot of land designated as agricultural land in Casteltermini. The land in issue was recorded in the land register as Folio no. 40, Parcel no. 185. 6. On 13 July 1989 the regional councillor for public works issued a decree authorising the Municipality to take possession, through an expedited procedure and on the basis of a public-interest declaration, of a portion of the applicants’ land in order to begin the construction of a road. 7. On 4 January 1991 the authorities took physical possession of the land. 8. By a writ served on 23 June 1998, the applicants brought an action for damages against the Casteltermini Municipality before the Agrigento District Court. They alleged that the occupation of the land was illegal and that the construction work had been completed without there having been a formal expropriation of the land and payment of compensation. They claimed a sum corresponding to the market value of the land and a further sum in damages for the loss of enjoyment of the land during the period of lawful occupation. 9. On an unspecified date the court ordered an expert valuation of the land. In a report submitted on 17 September 2001 the expert concluded that the occupied land covered a surface area of 124.87 square metres and confirmed that it could be classified as building land. He further concluded that the market value of the land on the date the occupation became unlawful, which he identified as having occurred on 13 July 1994, corresponded to 6.20 euros (EUR) per square metre, for a total of EUR 773.88. 10. By a judgment delivered on 22 January 2003 and filed with the court registry on 23 January 2003, the Agrigento District Court declared that the possession of the land, which had been initially authorised, had become unlawful as of 4 June 1993. It found that the land had been irreversibly transformed by the public works. As a result, in accordance with the constructive-expropriation rule (occupazione acquisitiva or accessione invertita), the applicants had been deprived of their property, by virtue of its irreversible alteration, on the date on which the possession had ceased to be lawful. In the light of those considerations, the court concluded that the applicants were entitled to compensation in consideration for the loss of ownership caused by the unlawful occupation. 11. The court drew on the expert valuation to conclude that the land could be classified as agricultural land and that its market value on the date the occupation had become unlawful corresponded to EUR 773.88. However, in contrast with the expert’s finding, the court reiterated that the occupation had become unlawful as of 4 June 1993. 12. Therefore, the court held that the applicants were entitled to compensation in the sum of EUR 773.88, to be adjusted for inflation, plus statutory interest. 13. The court further awarded the applicants EUR 37.43 as compensation for the damage occasioned by the unavailability of the land during the period from the beginning of the lawful occupation (13 July 1989) until the date of loss of ownership (4 June 1993). 14. The judgment became final in March 2004. | 1 |
test | 001-174117 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KARMANNIKOV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Dmitry Dedov;Luis López Guerra | 3. The applicant has been detained in various departments of correctional colony no. 36/5 of Krasnoyarsk, Russia (hereinafter “IK-36/5”), since 30 May 2011. 4. The applicant disposed of between 2.2 and 5.2. square metres (sq.m.) of personal space during different periods of his detention. 5. The applicant complained of overcrowding, insufficient number of toilets and of the fact that the toilets were not separated from the rest of the cells. | 1 |
test | 001-174418 | ENG | ARM | COMMITTEE | 2,017 | CASE OF DNGIKYAN v. ARMENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Aleš Pejchal;Armen Harutyunyan | 4. The applicant was born in 1951 and lives in Los Angeles. 5. The applicant was born in Armenia and grew up in a house in Yerevan which had been built by his grandfather in the 1940s. After the grandfather’s death the applicant’s uncle lived with his family on the first floor of the house, while the applicant’s family lived on the second floor. The entrance to the house is common to the occupants of the first and second floors, and there is a common plot of land adjacent to it. 6. In the 1970s the applicant’s uncle sold the first floor of the house to M.G. 7. The applicant later moved to the United States with his father, who died there in 1993, leaving all his property to the applicant. 8. In 1997 the applicant submitted his father’s will to a notary in Armenia. The notary then issued a certificate of inheritance and the State Real Estate Registry registered his title in respect of the second floor of the house. 9. In 2003 M.G. sold the first floor of the house to E.T., who registered her title in respect of the first floor. She also obtained the right of common ownership in respect of the adjacent land. 10. It appears that E.T. and her family carried out construction works in the house and on the plot of land adjacent to it, modifying both the house and the surrounding area. They have built and are running a restaurant there. 11. On an unspecified date the applicant lodged a civil claim against E.T., M.G. and the State Real Estate Registry, seeking to annul E.T.’s title in respect of the first floor and the adjacent land, and to oblige her to demolish the buildings constructed without the permission of the authorities and to restore the stone wall that she had destroyed. E.T. in her turn lodged a counterclaim against the applicant, seeking to annul the will and the subsequent registration of his title as regards the plot of land adjacent to the house. 12. By a judgment of 1 July 2003 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան – “the District Court”) partially allowed the applicant’s claim and dismissed E.T.’s counterclaim. 13. On 22 August 2003 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) re-examined the case on the merits. It granted the applicant’s claims in their entirety and rejected E.T.’s counterclaim. 14. E.T. subsequently lodged an appeal on points of law against the judgment of the Civil Court of Appeal. 15. On 24 October 2003 the Civil and Economic Chamber of the Court of Cassation (ՀՀ վճռաբեկ դատարանի քաղաքացիական և տնտեսական գործերի պալատ) dismissed E.T.’s appeal on points of law and upheld the judgment of the Court of Appeal. The judgment of 22 August 2003 thereby became final and binding and a writ of execution was issued in this respect. 16. On 4 December 2003 enforcement proceedings were instituted by the Department for the Enforcement of Judicial Acts (Դատական ակտերի հարկադիր կատարման ծառայություն – “the DEJA”). 17. Thereafter the head of the Kentron division of the State Real Estate Registry (Անշարժ գույքի կադաստրի պետական կոմիտեի Կենտրոն տարածքային ստորաբաժանում) requested the Civil Court of Appeal to clarify the judgment of 22 August 2003. 18. On 22 October 2004 the Civil Court of Appeal issued a clarification of the above-mentioned judgment. It stated, in particular, that the title to the plot of land adjacent to the house was to be registered in the applicant’s name. This decision became final and was also submitted for enforcement. 19. On 11 April 2006 the applicant lodged a civil claim against the Kentron division of the State Real Estate Registry, the DEJA and E.T., seeking to oblige the Kentron division of the Real Estate Registry to comply with the requirements of the judgment of the Court of Appeal of 22 August 2003 and the decision of 22 October 2004 concerning its clarification, to evict E.T. and other persons who were unlawfully occupying his property, and to terminate the activities of the restaurant situated therein. 20. By the judgment of 28 August 2006 the District Court allowed the applicant’s claim in its entirety. It stated, in particular, that the applicant’s title was to be registered in respect of the plot of land adjacent to the house and the constructions situated therein, that E.T. and the other persons occupying the applicant’s property were to be evicted, and that these persons should terminate the activities of the restaurant. 21. After an appeal lodged by E.T. on 22 December 2006 the Civil Court of Appeal re-examined the case and allowed the applicant’s claim. In doing so, it stated that the judgment of 22 August 2003 and the decision of 22 October 2004 had not yet been enforced since the applicant’s title had not been registered and the constructions had not been demolished. The Court of Appeal went on to state that the non-enforcement of the above-mentioned judicial acts was in violation of Article 6 of the Convention and Article 1 of Protocol No. 1 in that the applicant’s right to peaceful enjoyment of his possessions was being violated by the illegal occupation of his property by E.T. without the applicant’s permission. This judgment became final and binding on the day of its delivery and on 26 January 2007 enforcement proceedings were instituted in its respect. 22. Since 2003 a number of decisions have been made by the bailiffs in respect of obliging E.T. to comply with the requirements of the judgment in the applicant’s favour within certain time-limits. However, each time E.T. has failed to comply with these decisions, for which failure the bailiffs have each time imposed a fine. It appears that she has also failed to pay the fines. 23. In 2005 enforcement activities were postponed on the grounds that various measures applied in respect of E.T. had been ineffective in view of the fact that the DEJA needed to suspend the proceedings in order to conclude a contract with a construction company, given the absence of technical equipment necessary for conducting the compulsory construction works. It appears that at some point the proceedings were resumed. 24. By a letter of 25 December 2008 the Minister of Justice informed the applicant’s lawyer that the Kentron division of the State Real Estate Registry had justified the non-registration of the applicant’s title in respect of his property by pointing to the fact that the constructions situated therein had not been demolished because the DEJA did not have the appropriate technical equipment and workforce at its disposal. 25. It appears that until 2010 other measures were initiated by the DEJA, such as obliging the Kentron division of the State Real Estate Registry to perform the registration of the applicant’s title, in accordance with the judgments in his favour, and setting new time-limits for E.T. to comply with her obligations. However, it appears that these measures did not lead to the full enforcement of the judicial acts in question. 26. On an unspecified date the applicant applied to the General Prosecutor’s Office (ՀՀ գլխավոր դատախազություն), seeking to have criminal proceedings instituted against those responsible for not enforcing the judicial acts in question. His request was refused. 27. Following a complaint lodged by the applicant, on 3 July 2007 the District Court annulled the decision of the General Prosecutor’s Office to refuse to institute criminal proceedings, on the grounds that the investigator had not taken proper action to verify whether the bailiffs had carried out their duties properly with a view to securing the enforcement of the above-mentioned judicial acts in favour of the applicant. As a result, criminal proceedings were instituted against the bailiffs and officials of the Kentron division of the State Real Estate Registry. 28. On 26 December 2007 the investigator terminated the proceedings on the grounds that the judicial acts in question had not – for objectively justifiable reasons – been enforced. 29. On 25 February 2008 the District Court annulled the investigator’s decision of 26 December 2007, stating, inter alia, that the investigator had failed to determine why for more than four years E.T. and other persons had not been evicted, the constructions on the applicant’s property had not been demolished, and the activities of the restaurant had not been terminated – even after E.T. had been fined for not complying with the requirements of the judicial acts in question. 30. The prosecutor appealed against the above-mentioned decision of the District Court. 31. On 28 April 2008 the Criminal Court of Appeal (ՀՀ վերաքննիչ քրեական դատարան) upheld the decision of 25 February 2008. As a result, the criminal proceedings were resumed on 14 May 2008. 32. Thereafter, the criminal proceedings were again terminated three times, namely on 14 June 2008, 17 July 2009 and 23 April 2010. The first two termination decisions were successfully challenged by the applicant at two levels of jurisdiction, following which the criminal proceedings were re-opened on the orders of those courts. As for the final decision by which the proceedings were once again terminated, the applicant lodged a complaint with the General Prosecutor’s Office, but his complaint was rejected for failure to comply with the time-limits for lodging an application for supervisory review. According to the applicant, he did not pursue this last complaint any further. 33. According to the latest information received from the applicant, the enforcement proceedings were closed on 5 September 2016 because the enforcement of the judgments was impossible. The judgments of the Civil Court of Appeal of 22 August 2003 and 22 December 2006, as well as the decision of 22 October 2004, therefore remain unenforced today. | 1 |
test | 001-177394 | ENG | TUR | CHAMBER | 2,017 | CASE OF DAŞTAN v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-d - Examination of witnesses) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström | 5. The applicant was born in 1975 and is detained in Turkey. 6. On 22 August 2004 the applicant was arrested on suspicion of membership of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party). The following day, on 23 August 2004, he was questioned by the gendarmerie, at which time he was reminded of his rights, including the right to benefit from legal assistance. He refused the assistance of a lawyer and gave a statement of forty-nine pages in length in which he admitted his membership of the PKK and gave detailed information about the organisation and its members. According to transcripts of that statement, the applicant read its content and signed every page of it. 7. On 26 August 2004 the applicant was brought before the Tunceli public prosecutor and he was again reminded of his right to benefit from legal assistance. He indicated that he did not wish to be assigned a lawyer and that he would make a statement without assistance. He confirmed his membership of the PKK and his support for that illegal organisation, however maintaining that he had never been involved in an armed operation. The applicant was placed in detention pending trial on the same day. 8. On 3 December 2004 the Malatya public prosecutor filed an indictment with the Malatya Assize Court, charging the applicant under Article 125 of the former Criminal Code with seeking to destroy the constitutional order and unity of the Turkish State and to remove part of the country from the State’s control. The public prosecutor claimed that the applicant: - had exploded a remote-controlled land mine in Ovacık province in November 2003 that had caused the injury of one soldier, - had exploded a time bomb in Ovacık province on 28 October 2003 that had caused the injury of two soldiers. In its assessment report (tensip zaptı) dated 10 December 2004 the Malatya Assize Court ordered a copy of the police statements of D.T., M.A., A.Ç., S.G., H.B. and V.D. The trial court further ordered that the whereabouts of D.T. be ascertained. 9. M.A. was tried in another set of criminal proceedings concerning the same organisation. On 17 February 2004 M.A. lodged an application to benefit from the Reintegration of Offenders into Society Act (Law no. 4959), which had come into force on 6 August 2003. 10. On 30 December 2004, at the first hearing, the applicant gave evidence in the presence of his lawyer and accepted the contents of his police statement. In other words, the applicant once again admitted his membership of the PKK while insisting that he had not been involved in any armed activity. He further stated that his statement had not been read back to him by the police and asked the trial court not to take it into consideration in case it had any incriminatory remarks in respect of himself or third persons in so far as they concerned participation in armed activities. When asked about his statement before the public prosecutor, the applicant essentially confirmed it, whilst insisting that he had not given any statement concerning the attacks in Tunceli, a city in the east of Turkey, and adding that he had signed it without reading it. Lastly, the applicant stated that he had received training in bomb-making and that he had been planning to carry out bomb attacks in major cities in accordance with the instructions of the PKK. His lawyer submitted that he had nothing to add to the applicant’s statements. 11. During the same hearing the trial court questioned several witnesses, namely A.Ç., M.A. and K.A. A.Ç. testified that he knew the applicant but that they had not carried out any armed attack together. M.A. stated that he had not known the applicant’s real name, but he had known him as “Hamza”. M.A. further testified that he had no knowledge of the applicant’s position and activities within the illegal organisation. K.A. testified that he did not know the applicant. 12. At a hearing on 25 November 2005 the trial court noted that D.T. was in Kırklareli Prison and it issued a letter of request to the Kırklareli Assize Court, requesting that the latter obtain his statements. 13. On 14 December 2005 D.T.’s statement was taken by the Kırklareli Assize Court, pursuant to the letter of request by the trial court. According to the transcript of the hearing at the Kırklareli Assize Court, D.T. was detained in Kırklareli E-type Prison at the time his statement was taken. D.T. stated that he had known the applicant as “Zafer” and that he had knowledge of the attack in Ovacık province, adding that he had heard such information from the member with the code name “Serhildan”. 14. On 15 March 2006 the applicant asked the trial court to hear evidence from D.T. in person. The trial court rejected this request on the basis that hearing D.T.’s testimony in person would not contribute to its assessment since his statement given before another court had been considered sufficient for a conviction. 15. On 10 May 2006 the Malatya Assize Court found the applicant guilty pursuant to Article 125 of the former Criminal Code and sentenced him to life imprisonment. The court took account of the variety of evidence and witness statements, including those of D.T., which had been taken by the Kırklareli Assize Court at the trial court’s request. The relevant parts of the trial court’s reasoned judgment read as follows: “... | 1 |
test | 001-180646 | ENG | ROU | COMMITTEE | 2,018 | CASE OF BEŞLEAGĂ v. ROMANIA | 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) | Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic judgments. In application no. 45096/09, the applicant also raised other complaints under the Convention. | 1 |
test | 001-140014 | ENG | RUS | CHAMBER | 2,014 | CASE OF ZALOV AND KHAKULOVA v. RUSSIA | 3 | Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);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+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);Non-pecuniary damage - finding of violation sufficient | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicants were born in 1933 and 1949 respectively. The first applicant lives in the village of Shalushka in the Republic of KabardinoBalkariya, whilst the second applicant is resident in the village of Pervomayskoe, Stavropol Region. 6. Early in the morning of 13 October 2005 law-enforcement agencies in the town of Nalchik, the Republic of Kabardino-Balkariya, were attacked by a number of heavily armed people, who appear to have been local insurgents. The agencies included the Republican Department of the Ministry of the Interior, Centre T of the Main Department of the Ministry of the Interior, various district departments of the Ministry of the Interior, the Special Purpose Police Unit of the Republican Ministry of the Interior, various checkpoints of the Traffic Police, the Republican Department of the Federal Security Service, the Republican Department of the Federal Service for the Execution of Penalties and the office of the Border Guard Service of the Federal Security Service. Also, a few privately owned weapon shops were attacked. According to the Government, there were over two hundred and fifty participants in the attack. 7. The ensuing fight between the governmental forces and the insurgents lasted until at least 14 October 2005. 8. The applicants submitted that they were relatives of the persons who participated in the attack and died on 13 and 14 October 2005 or shortly afterwards. 9. The first applicant refers to the death of his son Zamir Mikhaylovich Zalov, born on 13 November 1978, whilst the second applicant refers to the death of her son Murat Abubovich Khakulov, born on 26 March 1978. 10. The Government stated that the authorities had killed a total of ninety-five insurgents in the anti-terrorist operations mounted in response to the attack of 13 October 2005. In essence, they acknowledged that the deceased referred to by the applicants were among those killed by the authorities. 11. It appears that on 13 October 2005 the authorities instituted criminal proceedings no. 25/78-05 in connection with the attack in Nalchik. 12. In the course of the investigation it was established that between 1999 and February 2005 a group of individuals, including A. Maskhadov, Sh. Basayev, I. Gorchkhanov, A. Astemirov, Abu-Valid Khattab and AbuDzeit, had formed a terrorist group. It was this group that organised the attack. Thirty-five law-enforcement officers and fifteen civilians were killed, whilst one hundred and thirty-one law-enforcement officers and ninety-two civilians were injured. Massive damage was done to property. 13. The applicants did not have any procedural status in the criminal proceedings in case no. 25/78-05. 14. It appears that on several occasions the applicants requested various officials, including the prosecutors, to return the bodies of their sons for burial. 15. The requests either remained unanswered or were refused. 16. The applicants were furnished with death certificates in respect of their sons, indicating 13 October 2005 as the date of death in respect of both individuals and 23 January 2007 (in respect of Zamir Zalov) and 7 April 2008 (Murat Khakulov) as the dates of issue. 17. On 13 April 2006 the investigation authority terminated the criminal proceedings in respect of the ninety-five deceased on account of their deaths, having taken an individual decision in respect of each deceased person. Each decision described the degree and character of their individual involvement and concluded that these persons had taken part in the attack and died in the course of the ensuing gunfight. It appears that the deceased referred to by the applicants were among those concerned by this decision. 18. The decision of 13 April 2006 in respect of Zamir Mikhaylovich Zalov stated that his body was located on 13 October 2005 at 127 Malbakhov Street, Nalchik. The investigators found a Makarov pistol containing four cartridges near the corpse and a Makarov pistol containing seven cartridges in his trousers. The deceased held an armed hand grenade in his left hand. The subsequent expert report identified the cause of death as a gunshot wound to the chest, which damaged his heart and caused a massive loss of blood and traumatic shock. 19. In view of the collected evidence, the investigation concluded that at around 9 a.m. on 13 October 2005 the deceased, acting in concert with other participants, carried out a pre-planned and armed attack on an arms shop with a view to capturing arms and ammunition. The attack resulted in the deaths of at least three persons and the wounding of two more. The deceased personally killed one of the victims and ordered the killing of another. 20. The decision of 13 April 2006 in respect of Murat Abubovich Khakulov stated that his body was located on 13 October 2005 in the vicinity of the local premises of the Special Purpose Police Unit of the Republican Ministry of the Interior. The investigators found eighty used bullet cartridges nearby. The subsequent expert report identified the cause of his death as multiple gunshot wounds to the legs, leading to massive loss of blood and traumatic shock. 21. Based on the collected evidence, the investigation concluded that the deceased, along with four other persons, organised and carried out an armed attack on the building of the Special Purpose Police Unit. The deceased took part in the attack for two hours, by shooting at police and passer-bys from an automatic rifle and throwing hand grenades at them. He was later killed when the police returned fire. The attack resulted in the death of one civilian, the wounding of two more and injuries to four police agents. 22. The Prosecutor General’s Office notified the applicants of the above decisions on 14 April 2006, but no copies of the decisions in question were attached to the notifications. 23. According to the Government, ninety-five corpses of the presumed terrorists were cremated on 22 June 2006. From the applicants’ submissions, it appears that they first learned of the cremations from the Government’s observations in the present case. 24. According to the Government, the cremations took place pursuant to a decision not to return the bodies of the deceased to their families, dated 15 May 2006. In contrast to the individual decisions of 13 April 2006, the decision of 15 May 2006 referred to the deceased persons collectively. The decision stated, in particular: “... the head of investigation group ... [official S.], having examined the materials in case file no. 25/78-05, established: ... [that] in the course of the counter-terrorist special operation aimed at tackling the attack, 95 terrorists were eliminated, namely: [the decision names among the deceased the persons referred to by the applicants] At present all forensic expert examinations, including molecular genetic examinations, involving ... the corpses of the deceased terrorists, have been finalised and their identities have been established by way of proper procedure. By decisions of 13-14 April 2006 the criminal proceedings in respect of these 95 persons, who had committed ... the attack on various sites and law-enforcement agents of the town of Nalchik ... was discontinued on account of their deaths, under Article 27 part 1 subpart 2 and Article 24 part 1 subpart 2 of the Code of Criminal Procedure. Pursuant to section 14.1 of the Federal Interment and Burial Act (Law no. 8-FZ): ‘the interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed.’ Pursuant to part 3 of Decree no. 164, ‘On interment of persons whose death was caused by the interception of terrorist acts carried out by them’, approved by the Government of the Russian Federation on 20 March 2003, ‘the interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ...’. [In view of the above, official S. decided to:] bury the bodies of the 95 terrorists... forward the decision to the President of the Republic of Kabardino-Balkariya for execution; inform [his superiors] of this decision”. 25. The Government alleged that the authorities had notified the applicants of the decision of 15 May 2006, but acknowledged that no copy of that decision had been provided to them. 26. It appears that on several occasions the Prosecutor General’s Office informed the applicants, in substance, of the refusal to return the bodies. It does not appear that the applicants were furnished with a copy of the decision of 15 May 2006. 27. The applicants’ initial attempts to obtain judicial review of the decisions of 13 April and 15 May 2006 were unsuccessful, as the courts refused to examine their arguments. 28. The relatives of other deceased participants in the attack contested the legislation governing the interment of terrorists before the Constitutional Court. Their initial complaints were rejected as premature. Eventually, some complaints were accepted for examination. 29. On 28 June 2007 the Constitutional Court delivered a judgment (no. 8-P) in which, in essence, it rejected their complaints alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation of 20 March 2003 were unconstitutional. The ruling stated, in particular, that the impugned legal provisions were, in the circumstances, necessary and justified. The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question: “... At the same time, the interest in fighting terrorism, in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act, governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph 4 of Recommendation 1687 (2004) of the Parliamentary Assembly of the Council of Europe on combating terrorism through culture, dated 23 November 2005, in which it was stressed that extremist interpretations of elements of a particular culture or religion, such as heroic martyrdom, self-sacrifice, apocalypse or holy war, as well as secular ideologies (nationalist or revolutionary) could also be used for the justification of terrorist acts. 3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms. The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension. In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity. In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. ...” 30. The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards, such as effective judicial review, were in place to protect individuals from arbitrariness. The court noted that Articles 123-127 of the Code of Criminal Procedure provided for such review. 31. In sum, the Constitutional Court upheld the impugned provisions as being in conformity with the Constitution but at the same time interpreted them as requiring that the authorities refrain from burying bodies unless a court had confirmed the competent authority’s decision. It reasoned as follows: “... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify the lawfulness and well-foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... and of the time, location and cause of death ...” 32. Judge G.A. Gadzhiyev issued a separate opinion in which he agreed that the impugned provisions were in conformity with the Constitution but held a different view as to how they should be interpreted. The opinion stated as follows: “... if the relevant law-enforcement agencies find, as a result of a preliminary investigation, that a terrorist act has been committed and that a given person was involved, but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act, and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health, morals, rights, lawful interests and safety of others, they are entitled to take a decision refusing to hand over the body and applying special arrangements for burial. At the same time, in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him, the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased’s identity, the time and place of death, the cause of death, the place of burial and the data necessary for the proper identification of the grave (a given location and number). The burial must take place with the participation of the relatives, in accordance with custom and tradition and with humanitarian respect for the dead. The administrative authorities of a State governed by the rule of law must respect the cultural values of a multi-ethnic society, transmitted from generation to generation. ...” 33. Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as incompatible with the Constitution. In particular, he noted: “... The impugned norms banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations ... The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...” 34. After the Constitutional Court’s judgment of 28 June 2007 the domestic courts apparently changed their approach and agreed to review the formal lawfulness of the decisions of 13 April and 15 May 2006. The domestic courts still could not review the need for application of the measures set out in section 14 (1) of the Interment and Burial Act and Decree no. 164 of 20 March 2003 in individual cases. 35. The applicants contested the actions of the authorities before the courts. 36. In April 2008, in order to prepare the cases for examination, the presiding judge made repeated requests to the officials of the Prosecutor’s Office, including the Head of the Investigation Committee of the Prosecutor General, seeking copies of the materials relating to the investigation of the deaths of both applicants’ sons. It appears that these requests remained unanswered. 37. By a judgment of 29 May 2008 the Nalchik Town Court of the Republic of Kabardino-Balkariya partly granted the claims of the second applicant in respect of his son. In particular, the court quashed both the decision dated 13 April 2006 to terminate criminal proceedings in respect of the second applicant’s son because of his death and the decision dated 15 May 2006 not to return the body of the second applicant’s son to his family. The court noted that the decision of 13 April 2006 had failed to take account of the new law on terrorism, adopted on 6 March and 27 June 2006, and that therefore the decision of 15 May 2006 had been premature. The court ordered the prosecution authorities to examine the relevant issues afresh. 38. A similar judgment was taken on 3 July 2008 by the Nalchik Town Court of the Republic of Kabardino-Balkariya in respect of the first applicant’s son. 39. The judgments were appealed against by both parties. 40. The Supreme Court of the Republic of Kabardino-Balkariya upheld the judgments on 15 July and 12 August 2008 respectively. 41. The parties have not submitted any information about the subsequent events in the applicants’ domestic cases. 42. According to those relatives of the deceased who took part in the identification of the bodies, for several days following the events of 13 and 14 October 2005 the corpses were kept in the town morgue and other locations in wholly unsatisfactory conditions. In particular, the bodies gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of each other. 43. The applicants did not participate in identification of their deceased relatives in person. 44. The Government submitted that Zamir Mikhaylovich Zalov had been identified by his cousin Z.Kh. on 19 October 2005, whilst Murat Abubovich Khakulov had been identified by his cousin A.R. on 24 October 2005. 45. The Government submitted that the corpses in question had been initially held in the Nalchik morgue. Between 14 and 18 October 2005 the applicants examined the corpses and the clothing. Thereafter the bodies were placed in two refrigerator wagons. On 1 November 2005 the wagons were moved to the town of Rostov-on-Don for molecular genetic examinations and on 22 June 2006 all of the bodies were cremated. Between 13 and 22 October 2005 the person in charge of the identification proceedings was the head of the investigation group, investigator P. From 22 October 2005 he was replaced by investigator S. The Government also acknowledged that immediately after the attack no facilities had been available to keep the bodies. 46. According to the Government’s most recent submissions, the overall amount of human casualties as a result of the events of 13 October 2005 was twelve civilians, thirty-five police and law-enforcement officers and eightyseven participants in the attack. 47. For a summary of the relevant domestic law, see Sabanchiyeva and Others v. Russia, no. 38450/05, §§ 33-37 and 65-90, ECHR 2013 (extracts) and Maskhadova and Others v. Russia, no. 18071/05, §§ 116-146, 6 June 2013. 48. For a summary of other relevant sources referred to by the applicants, see Sabanchiyeva and Others, cited above, §§ 91-96 and also Maskhadova and Others, cited above, §§ 147-150. | 1 |
test | 001-146406 | ENG | HUN | COMMITTEE | 2,014 | CASE OF NOÉ, VAJNAI AND BAKO v. HUNGARY | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Helen Keller;Robert Spano | 5. The applicants were born in 1970, 1963 and 1989 and live in Paks and Budapest respectively. 6. At the material time, Mr Vajnai was Vice-President and Ms Noé and Mr Bakó were activists of the Workers’ Party (Munkáspárt), a registered left-wing political party. The party had no known intention of participating in Hungarian political life in defiance of the rule of law. 7. On 21 December 2008 the applicants organised an event in front of a shopping mall in Budapest, entitled “Anti-Capitalist Santa Claus”, with the intention to demonstrate against consumerism, draw attention to poverty, point out the shortcomings of market economy, and demand free internet access for all. 8. To express their affiliation with Communism, four persons, including the applicants, displayed a sheet and a flag with a five-pointed red star and distributed leaflets with their political message, depicting red stars. 9. In application of section 269/B(1) of the Criminal Code, a police patrol which was present called on the applicants to terminate the demonstration, checked their identity and committed them to Budapest VI District Police Department for interrogation. 10. On 23 December 2008 the applicants lodged a complaint with the Independent Police Complaints Board against the police measures. They relied on the judgment of the European Court of Human Rights adopted in the case of Vajnai v. Hungary (no. 33629/06, ECHR 2008). They referred to the Court’s finding that the prosecution for having worn a red star had amounted to a violation of Mr Vajnai’s freedom of expression enshrined in Article 10 of the Convention. 11. The applicants’ complaints were dismissed by the Complaints Board on 4 March 2009. 12. The applicants’ further complaints against the measures were dismissed by the District Police Department on 22 May 2009. This decision was upheld by the Budapest Chief Police Commander, acting as a second-instance authority, on 17 November 2009. 13. On 29 June 2010 the Budapest Regional Court dismissed the applicants’ requests for judicial review. The court held that the display of the red star contravened section 269/B of the Criminal Code, despite the Vajnai judgment, whose application in the circumstances had been no task of the police officers present on the premises. Consequently, the applicants’ identity check and committal to the Police Department was justified under sections 29 (1) and 33 (1) of Act no. XXXIV of 1994 on the Police. 14. In review proceedings, the Supreme Court upheld the Regional Court’s decision on 22 June 2011 (in the case of Mr Bakó), 27 June 2011 (in the case of Ms Noé), and 5 September 2011 (in the case of Mr Vajnai), endorsing in essence the first-instance decisions’ reasoning. 15. The applicants, jointly (they had a lawyer in common), incurred altogether 2,760 euros in legal costs. | 1 |
test | 001-177988 | ENG | SRB | ADMISSIBILITY | 2,017 | TORDAJ v. SERBIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova | 1. The applicant, Ms Divna Tordaj, is a Serbian national, who was born in 1938 and lives in Belgrade. She was represented before the Court by Ms B. Zarić, a lawyer practising in Belgrade. 2. The Serbian Government (“the Government”) were initially represented by their former Agent, Ms V. Rodić, and subsequently by their current Agent, Ms N. Plavšić. 3. On 13 November 2003 the applicant instituted private prosecution proceedings against P.A. for defamation, claiming that he had falsely accused her of extortion and nuisance in a letter to some local authorities. 4. On 25 February 2004 the Belgrade Municipal Court ordered the applicant to submit some additional information, which she did on 13 April 2004. 5. On 9 March 2006 the applicant applied to the criminal court to speed up the proceedings in view of the short limitation period in respect of defamation claims (see paragraph 10 below). 6. On 14 March 2006 the criminal court responded that the proceedings would become statute-barred in August 2007 and that it would take all necessary measures to prevent that. 7. On 17 July 2006 a hearing to attempt a friendly settlement was held. The defendant expressed his readiness to make an apology to the applicant, since he had had no intention of insulting her. The applicant did not accept his apology. 8. On 29 March 2007 the Municipal Court found the defendant guilty of defamation. However, the Belgrade District Court quashed that judgment and remitted the case for a retrial on 28 June 2007. 9. On 30 August 2007 the Municipal Court discontinued the proceedings as statute-barred. The District Court upheld that decision on 24 October 2007. 10. In the present case, although the alleged defamation had taken place in 2003, the domestic courts applied the Criminal Code 2005 because its provisions were more lenient for the defendant in respect of punishment. Article 104 of the Code provides that the time-limit for criminal prosecution for defamation expires four years after the commission of the offence. 11. Since January 2013 defamation has no longer been considered as a criminal offence (OG RS no. 121/2012). 12. Articles 157, 199 and 200 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or of his other personal rights (prava ličnosti) is entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction. | 0 |
test | 001-163911 | ENG | UKR | CHAMBER | 2,016 | CASE OF KULYK v. UKRAINE | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) | Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Sergiy Goncharenko;Síofra O’Leary;Yonko Grozev | 5. The applicant was born in 1963 and lives in the town of Shargorod, Ukraine. 6. According to the applicant, at around 1.30 p.m. on 30 December 2002, while working in the backyard of his home, he saw three young men on the premises of the nearby Shargorodskiy Food Products Factory (“the factory”). Since there had previously been thefts at the factory premises, during which scrap metal had been thrown over the fence into the applicant’s yard, the latter decided to enter the factory yard to chase after the young men. However, having climbed over the fence and realising the young men were no longer there, the applicant went to look inside the building, entering “through an opening in the wall”. The factory premises were empty but the applicant claimed to have heard adult voices. He did not want to meet anybody and so he crawled out through the same opening and quickly returned home. 7. Five to ten minutes later a police officer, L., arrived at the applicant’s house. According to the applicant, he had a gun in his hand, swore at the applicant, grabbed him by his collar and hit him on the head with the gun handle. The applicant fell to the ground and the police officer started kicking him. The applicant’s mother-in-law appeared and asked the police officer not to beat the applicant, whereupon he grabbed the applicant by the sleeve and took him to the police station. The applicant was accused of stealing aluminium sheets from the factory. 8. The applicant also submitted that, at the police station, L., in the presence of two other police officers, had kicked him in the kidneys, at which point the applicant fell to the ground. After he got up, one of the police officers gave him some water. L. then took the applicant into one of the offices, where he and another police officer, P., beat the applicant about the head and kicked him on various parts of his body for 15-20 minutes. Another police officer, G., arrived and L. and P. continued to beat the applicant, wanting him to confess to theft. After a while the applicant was placed in a cell. 9. That night the applicant complained of a headache and general sickness. He was told by the duty police officer that a doctor would come. After some time a man wearing a white coat arrived, emptied two ampules labelled “Analgin” and “Dimedrol” (diphenylhydamine) into a plastic water bottle and gave it to the applicant. 10. On the morning of 31 December 2002 the applicant was taken to court, where he was fined in administrative proceedings for disobeying a police officer’s order to stop. According to the applicant, he had wanted to show the judge his injuries but the latter refused, advising the applicant to go to a hospital and file a complaint. 11. The applicant was brought back to the police station, where he signed a paper stating that nobody had ill-treated him and that his personal belongings had been returned to him. The material in the case-file includes a note, allegedly signed by the applicant and dated 31 December 2002, stating that he had no complaints about the police officers and that no physical force had been used against him. 12. On the same day a decision not to institute criminal proceedings against the applicant for stealing aluminium was adopted. It was noted that the applicant had not had any intention of stealing the aluminium sheets and that he had entered the factory premises out of curiosity. 13. The applicant came home and told his family what had happened. The applicant’s sister-in-law, who is a nurse, gave him an injection but the applicant did not feel any better. He was suffering from headache, nausea and fever which he claimed continued for eight months. 14. The Government did not provide a detailed description of the events of 30-31 December 2002 but it appears from their observations that they agreed with the findings of the national investigation authorities (see paragraphs 48-50 below). 15. On 2 January 2003 the applicant was examined at a hospital and was hospitalised the next day. The applicant stayed in hospital until 11 February 2003. According to the applicant’s medical records, upon arrival at the hospital, his condition was of “medium seriousness”. He had bruises mostly on the left side of his body and some scratches on his back. On his left thigh there was a large bruise measuring 12 by 6 centimetres. The applicant was suffering from headache and nausea. He told the doctors that he had been beaten by police officer L. 16. In a medical certificate dated 11 February 2003, issued by the hospital, the applicant was diagnosed with multitrauma, closed brain injury, brain contusion of medium severity causing numerous neurological problems, two broken ribs, post-traumatic pneumonia and injuries to his kidneys, face and body. 17. On 10 February 2003 the applicant requested the Vinnytsya Regional Prosecutor that criminal proceedings be instituted against the police officers. In support of his complaint the applicant outlined his version of the events which took place on 30-31 December 2002 (see paragraphs 613 above). 18. On 18 February and 3 March 2003 several factory employees (F., S., Lo. – the wife of police officer L. –, V. and A.) testified before the investigation authorities that a noise had been heard in one of the factory buildings. V. had asked a police officer, L., to check the origin of this noise. All of the above persons had approached the building and had seen footprints in the snow leading to a conveyor belt opening in the wall. Two of them had stayed outside while the others, accompanied by L., had entered the building and had seen aluminium sheets from the ceiling piled on the floor and a man trying to escape through the conveyor belt opening. V., who had stayed outside, had tried to catch the man, but the latter had broken free. When jumping from the conveyor belt, the man had slipped and fallen onto the asphalt and had then run away. The police officer had chased after the man. The latter had climbed over the 2.5 metre high fence but had lost his balance and fallen onto the other side. The witnesses had heard a thud and a shriek. 19. L. gave similar testimony. He added that the applicant had also fallen when jumping over the fence of his house. L. had found the applicant in a coal bunker in the backyard of the applicant’s house and said that he had taken him to a police station. 20. On 3 March 2003 the applicant’s mother-in-law, M., testified that L. had arrived at her house and had said that he was looking for a criminal. Later she had heard a noise behind the barn and had seen L. aiming a blow with the handle of his gun at the applicant, who was lying on the ground. M. had begged L. not to beat the applicant. After that L. had taken the applicant to a police station. 21. On the same day the Vinnytsya Regional Police Department (Управління МВС України у Вінницькій області) approved the results of an internal investigation in response to the applicant’s complaint. The investigation found that on 30 December 2002 around 2 p.m. the factory employees had asked L. to check the origin of a suspicious noise that had been coming out of one of the factory’s abandoned halls. L., accompanied by five factory employees, checked the hall and found aluminium sheets, which had been torn from the ceiling and piled up on the floor. He also saw the applicant, who tried to escape. While running away, the applicant fell twice – once when climbing through a conveyor belt opening in the wall and a second time when climbing over the fence. He fell for a third time when jumping over the fence of his house. In the yard of his house the applicant hid in a coal bunker, where he was found and taken to a police station. The police officers testified that they had not ill-treated the applicant. The applicant’s mother-in-law testified that a police officer L. had aimed a blow at the applicant as he was lying on the ground but she had not seen the applicant being beaten. Although summoned by a prosecutor, the applicant did not appear for questioning and neighbours ‒ who did not want their names to be cited ‒ described him as an alcoholic inclined to involvement in scandalous conduct, theft and fraud. The internal police investigation concluded that since the submissions of the applicant, the police officers and the witnesses were contradictory, the case-file of material should be sent to a prosecutor’s office. 22. On 7 March 2003 the deputy prosecutor of the Shargorodskiy District (заступник прокурора Шаргородського району) refused to institute criminal proceedings following the applicant’s complaint. The deputy prosecutor noted that the applicant had stated that he had not intended to steal aluminium but had entered the factory premises out of curiosity and had run away out of fear of being accused of theft, that L. and P. had denied using physical force on the applicant and that the factory employees said that they had not seen L. beat the applicant. It was also noted that the applicant had not appeared for the forensic medical examination. The deputy prosecutor concluded that the applicant had sustained his injuries when trying to run away from L. 23. On 10 April 2003 this decision was quashed by a higher prosecutor since it had not been established how the applicant’s injuries had been inflicted. 24. According to a forensic medical conclusion of 12 May 2003, the applicant had sustained the following injuries: closed concussion, two broken ribs on the left and one on the right, post-traumatic pneumonia and a kidney injury. He had numerous bruises: on the chest (20x15 cm), left shoulder (3x3 cm and 4x3 cm), left hip (12x6 cm), under the right knee (2x2 cm), left shoulder blade (5x4 cm) and scratches on the back. Those injuries were of medium severity and had been inflicted by a blunt, hard object possibly on 30 December 2002. 25. Between 15 June 2003 and 27 October 2004 the Shargorodskyy District Prosecutor’s Office (прокуратура Шаргородського району) twice refused to institute criminal proceedings in response to the complaint from the applicant. Those decisions were quashed by higher prosecutors for reasons similar to those mentioned in the decision of 10 April 2003 and the case was referred for additional investigation. 26. Between 15 June 2003 and 27 October 2004 the following investigative steps were taken: on 30 August 2004 the applicant’s mother-in-law testified that she had seen L. kicking the applicant whilst he was lying on the ground; on 30 August-1 September 2004 the applicant, his wife and the factory employees were questioned; on 30 August 2004 a forensic expert concluded that the applicant had sustained bodily injuries of medium seriousness and that those injuries could have been inflicted by blunt objects or by several falls from different heights; on 6-8 September 2004 police officers P. and L. were questioned; on 27 September 2004 the factory premises were examined; according to a forensic medical report dated 6 October 2004, the applicant could have sustained his injuries between 30 December 2002 and 2 January 2003 by being beaten or by falling from a height. 27. On 27 October 2004 the Vinnytsya Regional Prosecutor’s Office (прокуратура Вінницької області) instituted criminal proceedings on suspicion of abuse of power. 28. On 30 November 2004 the applicant was questioned and he reiterated his version of events (see paragraphs 6-10 above), submitting, in particular, that in the police station ‒ in the presence of two police officers ‒ L. had struck him on the chest; P. had hit him several times on the head; P. and L. had kicked him on various parts of his body and P. had struck him on the chest and on the abdomen and had then beaten him in the presence of a police officer. 29. On 10 January 2005 the forensic medical commission confirmed the previous expert conclusions and added that the applicant had been able to move after the injuries had been inflicted. 30. Between February and June 2005 the applicant, his family members, factory employees and police officers were again questioned and a reconstruction of events was staged in the police station. The applicant’s mother-in-law testified that she had seen L. kicking the applicant as he lay on the ground. She also stated that L. had hit the applicant on the head with his gun handle. The factory employees F. and A. testified that they had seen the applicant running away and falling over on his way to the fence and again when climbing over the fence. Face-to-face confrontations between the applicant and police officers P., L. and G., and between the applicant and the factory employees were conducted. 31. On 19 April 2005 the police officers P. and L. were charged with abuse of power accompanied by violence. 32. By a letter of 5 May 2005 the Vinnytsya Regional Prosecutor’s Office informed the applicant that investigating officers K. and T. had been disciplined for delaying the investigation. 33. On 18 May 2005 P. and L. were questioned as witnesses. 34. On 26 May 2005 the Vinnytsya Regional Prosecutor’s Office asked the Head of the Internal Security Department of the Vinnytsya Region, which is part of the Ministry of the Internal Affairs of Ukraine (начальник УВБ у Вінницькій області ДВБ ГУБОЗ МВС України), to identify and question witnesses who had seen or talked to the applicant at the time of the events in question. On an unspecified date the police stated that it had not been possible to find any witnesses. Similar requests were also submitted on 16 May 2006 and 11 January 2007. The answers to those requests were also negative. 35. On 2 June 2005 the Shargorod Territorial Medical Unit (Шаргородське територіальне медичне об’єднання), in reply to a request from Vinnytsya Regional Prosecutor’s Office, submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team. 36. On the same day, judge Tr. was questioned. He submitted that when he had seen the applicant in court on 31 December 2002 the applicant had had no injuries to his head or hands, nor had he complained about any health problems. The applicant also did not complain that he had been beaten. 37. On 10 June 2005 the investigating officer from the Vinnytsya Regional Prosecutor’s Office terminated the proceedings against the police officers for absence of corpus delicti. On 16 August 2005 this decision was upheld by the Leninskyy District Court of Vinnytsya. On 22 September 2005 the Vinnytsya Regional Court of Appeal quashed these decisions and remitted the case for a fresh investigation. The court found that the investigating officer had failed to check whether an ambulance had been called for the applicant when he had been at the police station, and had failed to question the witnesses to the applicant’s arrest. It was also unclear whether the applicant’s injuries could have occurred as a result of his falls. 38. On 28 October 2005 the Shargorod Territorial Medical Unit again submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team while at the police station. 39. In November 2005 L., A. and S. were again questioned. 40. On 22 December 2005 the forensic experts concluded that the applicant’s injuries could have occurred as a result of several falls. 41. On 28 December 2005 the investigating officer of the Vinnytsya Regional Prosecutor’s Office again terminated the proceedings for absence of corpus delicti. 42. On 20 February 2006 the Leninskyy District Court of Vinnytsya quashed that decision because witnesses to the applicant’s arrest had not been sought and the hospital doctors had not been questioned. The applicant’s family members and some factory employees were to be additionally questioned and the evidential material from the administrative case-file against the applicant was to be included in the file. The case was remitted for further investigation. 43. On 13 April 2006 the Vinnytsya Regional Court of Appeal rejected the prosecutor’s appeal against the decision of 20 February 2006. 44. Between 13 April 2006 and 19 October 2008 the proceedings were terminated three times for absence of corpus delicti and re-opened, in particular, in the light of the failure to obtain the applicant’s medical file from the hospital or to conduct a reconstruction of events with the participation of L., witnesses and a forensic medical expert in order to establish where the applicant had fallen and the circumstances in which the applicant had suffered his injuries. 45. By letters of 7 July 2006 and 7 February 2007 the Shargorodskyy District Prosecutor’s Office informed the Vinnytsya Regional Prosecutor’s Office, inter alia, that the applicant’s mother-in-law, wife and sister-in-law had refused to testify, that a factory guard who had been on duty on 30 December 2002 had moved to Russia, and that “it had been impossible to question doctors at Shargorod Hospital since there was no information about any medical assistance that might have been provided to the applicant”. 46. On 14 October 2008 a reconstruction of events at the factory had been conducted with the participation of L. and a forensic medical expert. The expert had also been asked additional questions on the same day. 47. On 19 October 2008 an investigating officer of the Tomashpilskyy District Prosecutor’s Office terminated the criminal proceedings against the police officers for absence of evidence of a crime. 48. It was found that on 30 December 2002 at around 1 p.m. employees of the Shargorodskiy Food Products Factory had asked a police officer L., who had been present at that time on the factory premises, to check the origin of noises coming from inside one of the locked factory buildings. L. together with V., F., A., Lo. and S. went to the premises in question. Inside the building, L. and the factory employees found aluminium sheets torn from the ceiling and piled up against a wall. They also saw the applicant, who ran away after tripping up several times. The applicant was later apprehended at his home and taken to a police station. 49. After being questioned on 30 August and 30 November 2004 (see paragraphs 26 and 28 above), the applicant admitted that whilst running away he had heard people shouting behind him but had not paid any attention to them. The applicant also submitted that he had climbed over the fence having stepped on a manure pile on another side. However, the applicant’s neighbours testified that the manure pile was located 1.5 metres away from the wall. The prosecutor also referred to the testimonies given by the police officer L., factory workers, other police officers and a judge Tr. during the investigation. Numerous forensic medical experts concluded that the applicant’s injuries could have been caused by having fallen onto hard objects several times. The forensic medical expert who participated in the reconstruction of events testified that the applicant’s injuries had most probably been caused as a result of his having fallen down several times, bearing in mind the frozen ground, the height of the conveyor belt and the fence, and the body’s acceleration when running. 50. In view of the above the Tomashpilskyy District Prosecutor’s Office concluded that there was no evidence of any crime and, since the events in question had taken place six years earlier, that there was no possibility of finding such evidence. 51. On 22 September 2010 the Leninskyy District Court authorised a search of premises at K. Street 54/1. This search was the result of criminal proceedings instituted the previous day following the placement of pornographic material on an Internet page which allegedly belonged to the applicant’s representative. 52. On 15 October 2010 Ya., who was using the premises at K. Street 54/3, allowed the police to inspect those premises after receiving authorisation from the owner. She confirmed that the items of property in the room at that address belonged to the applicant’s representative. 53. On the same day the police officers inspected the premises at K. Street 54/3 and seized, inter alia, three computers. According to the applicant’s representative, the office of a human rights organisation was located at that address, which was where he worked. 54. The applicant’s representative complained about the seizure to a prosecutor indicating that one of the seized computers contained part of confidential correspondence with the Court in the present case. 55. On 5 November 2010, in response to complaints by the applicant’s representative about alleged breaches of the law in the course of the search and seizure, the Vinnytsya City Prosecutor’s Office issued a decision refusing to institute criminal proceedings. According to the applicant’s representative, he appealed against that decision but to no avail. 56. According to reports in the media, in August 2013 the applicant’s representative was acquitted. | 1 |
test | 001-163330 | ENG | AZE | CHAMBER | 2,016 | CASE OF YUNUSOVA AND YUNUSOV v. AZERBAIJAN | 4 | Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary | 6. The applicants were born in 1955 and live in Baku. 7. The first applicant is a well-known human rights defender and civil society activist. She is the director of the Institute for Peace and Democracy (“the Institute”), a non-governmental organisation specialising in human rights protection and conflict resolution. 8. The second applicant, the first applicant’s husband, is a researcher and the head of the Conflict Resolution Department of the Institute. 9. On 30 July 2014 the first applicant was arrested by the police and was taken to the Serious Crimes Department (“the SCD”) of the Prosecutor General’s Office. On the same day she was charged under Articles 178.3.2 (large-scale fraud), 192.2.2 (illegal entrepreneurship), 213.2.2 (large-scale tax evasion), 274 (high treason), 320.1 and 320.2 (falsification of official documents) of the Criminal Code. 10. On 30 July 2014 the Nasimi District Court, relying on the official charges brought against the first applicant and the prosecutor’s request for application of the preventive measure of remand in custody (həbs qətimkan tədbiri), ordered her detention pending trial for a period of three months. The court justified its application of the preventive measure by the gravity of the charges and the likelihood that if released, she might abscond from the investigation. 11. On 1 August 2014 the first applicant appealed against this decision, claiming that her detention was unlawful. She submitted, in particular, that there was no reasonable suspicion that she had committed a criminal offence, and that there was no justification for the application of the preventive measure of remand in custody. She pointed out in this connection that her detention was related to her activities as a human rights defender and that she had been punished for her activities. She further complained that the court had failed to take into account her personal circumstances, such as her state of health and age, when it had ordered her detention pending trial. 12. On 6 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the first-instance court’s decision was lawful. 13. On 24 October 2014 the Nasimi District Court extended the first applicant’s detention pending trial by four months, until 28 February 2015. The court substantiated its decision by the fact that more time was needed to complete the investigation and that the grounds for the detention had not changed. 14. On the same day the Nasimi District Court also dismissed the first applicant’s request to be released on bail or placed under house arrest instead of in pre-trial detention. 15. On 27 October 2014 she appealed against these decisions, reiterating her previous complaints. 16. On 30 October 2014 the Baku Court of Appeal, in two separate decisions, upheld the Nasimi District Court’s decisions of 24 October 2014. 17. No further extension decisions were included in the case file. 18. On 30 July 2014 the second applicant was questioned by an investigator at the SCD. Following the interrogation, he was charged under Articles 178.3.2 (large-scale fraud) and 274 (high treason) of the Criminal Code. 19. On the same day the investigator decided to apply the preventive measure of placement under police supervision (polisin nəzarəti altına vermə qətimkan tədbiri), taking into account his state of health, in particular the fact that he suffered from chronic hypertension. The relevant part of the decision reads as follows: “Taking into consideration the state of health of the accused, Arif Yunusov, who was diagnosed with grade 3 hypertension and hypertensive crisis, and given medical treatment in the Central Oil Workers’ Hospital and Baku City Clinical Hospital No. 1 ... it was appropriate to choose the preventive measure of placement under police supervision.” 20. It appears from the documents submitted by the Government that on 30 July 2014 the second applicant was examined by two experts, who issued forensic medical report no. 185/KES dated 31 July 2014. The report confirmed that the second applicant suffered from chronic hypertension. The report also indicated that “considering A. Yunusov’s current state of health, it is possible to carry out investigative actions with him” (“A. Yunusovun hal-hazırkı sağlamlıq durumu ilə əlaqədar onunla istintaq hərəkətlərinin aparılması mümkündür”). 21. On 5 August 2014 the second applicant was arrested by the police. On the same day the prosecutor lodged a request with the Nasimi District Court asking it to replace the second applicant’s placement under police supervision with detention pending trial. The prosecutor justified his request by the second applicant’s failure to comply with the requirements of the preventive measure of placement under police supervision. The request also indicated that forensic medical report no. 185/KES dated 31 July 2014 did not reveal anything that would prevent the second applicant from participating in the investigation. 22. On 5 August 2014 the Nasimi District Court ordered the second applicant’s detention pending trial for a period of three months. The court justified the detention by the gravity of the charges and the likelihood that if released he might abscond from the investigation. 23. On 8 August 2014 the second applicant appealed against this decision. He submitted, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for replacing the preventive measure of placement under police supervision with detention pending trial. He also pointed out that his detention was related to his and his wife’s activities as a civil society activist and human rights defender and that the court had failed to take into account his personal circumstances, such as his state of health and age, when it had ordered his detention pending trial. 24. On 11 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the detention order was justified. 25. On 29 October 2014 the Nasimi District Court extended the second applicant’s detention pending trial by four months, until 5 March 2015. The court substantiated its decision by the fact that more time was needed to complete the investigation and that the grounds for the detention had not changed. 26. On 30 October 2014 the Nasimi District Court also dismissed the second applicant’s request to be released on bail or placed under house arrest instead of in pre-trial detention. 27. On 3 November 2014 the second applicant appealed against these decisions, reiterating his previous complaints and arguing that the firstinstance court had failed to justify his continued detention. 28. On 6 November 2014 the Baku Court of Appeal, in two separate decisions, upheld the Nasimi District Court’s decisions of 29 and 30 October 2014. 29. No further extension decisions were included in the case file. 30. The medical documentation submitted by the parties shows that the first applicant suffers from a number of illnesses. In particular, she has suffered from chronic hepatitis (hepatitis C) since 1997. People with hepatitis C usually suffer from constant exhaustion, joint, muscle and abdominal pain, general sickness and weakness, and often depression. A low-fat diet is required to reduce liver damage. The disease is potentially fatal. The first applicant regularly underwent medical treatment in Germany before her arrest. 31. Since 2009 she has also had type 2 diabetes, which is non-insulin dependent and requires sufferers to follow a special diabetic diet and take regular exercise. In addition, she suffers from myogelosis (muscle stiffness), arterial hypertension and a single cyst in the left kidney. 32. It also appears from the medical documents in the case file that she underwent surgery on both eyes in Germany before her arrest and needs specialist medical care as a follow-up, to avoid any risk of damage to her eyesight. The relevant part of a letter dated 5 September 2014 from the head of the Department of Ophthalmology at the Asklepios Clinic in Hamburg reads as follows: “Mrs Yunusova’s right and left eyes were both myopic with cataracts. It is absolutely necessary that she undergoes a repeat consultation and examination for the development of capsular fibrosis, which can lead to visual impairment and needs surgical laser treatment. It is also absolutely necessary that she undergoes a complete bilateral examination of her retina since she has had myopia and her risk of retinal detachment is substantially higher than in normal eyes and is further increased by the previous surgery. Any signs of retinal tears must be treated early with a laser retinopexy to prevent further damage and minimise the risk of permanent visual impairment.” 33. The medical documentation submitted by the parties shows that the second applicant suffers from grade 3 chronic hypertension and hypertensive crisis, with an increased risk of cardiovascular complications. He regularly underwent medical treatment in Germany before his arrest. He was also hospitalised from 25 to 28 April 2014 in the Central Oil Workers’ Hospital and from 29 April to 6 May 2014 in Baku City Clinical Hospital No. 1. 34. The first applicant was detained in a cell with four other detainees, two of whom were extremely noisy. Heating was available but inadequate. The electricity was cut off from 2 to 3 p.m. and from 1 to 8 a.m., which made it impossible to use a heater. The temperature inside the cell and in the walking area was very low in winter. There was no proper ventilation inside the cell and the temperature was very high in summer. There was a problem with hot water distribution in the cell. In particular, she was not informed of the distribution time for the hot water and could not obtain more when necessary. Moreover, there was only one refrigerator for all the detainees on her floor which was not sufficient. 35. According to the first applicant, upon her arrival at the detention facility, she was examined by a doctor who confirmed that she had type 2 diabetes and chronic hepatitis C. 36. From 31 July to 5 August 2014 she was provided with the necessary diabetic food and medicine by the second applicant who, as a close family member, was entitled to deliver her parcels. However, following his arrest on 5 August 2014, she was deprived of the necessary diabetic food and medicine. In particular, the detention facility administration did not allow her lawyer or friends to deliver her parcels until 23 August 2014, arguing that only the family members of a detainee could send in parcels. 37. In this connection, it appears from the documents submitted by the first applicant that on 6 August 2014 her lawyer asked the investigator in charge of the case to allow her friends, A.I. and S.A., to deliver her a parcel. He pointed out that, taking into consideration that on 5 August 2014 her husband had been arrested and that her only daughter lived abroad, the first applicant did not have any other family member to do this. On 22 August 2014 the lawyer also lodged a request with the administration of the detention facility (“the administration”), complaining that on 21 August 2014 employees had refused to receive a parcel for the first applicant on the grounds that it had not been sent in by a family member. 38. On 22 August 2014 the first applicant lodged a request with the administration and the investigator in charge of the case, asking for a medical examination at her own expense by a doctor of her own choosing, A.G. She specified in her request that she suffered from diabetes and other serious illnesses, and that under domestic law detainees could be examined by a doctor of their own choosing. 39. By a letter of 4 September 2014, the deputy governor of the detention facility replied to her request, noting that there was no need for a medical examination by A.G. In this connection, he pointed out that the first applicant’s state of health was stable and being monitored by the detention facility doctors. The letter also indicated that on 19 August 2014 she had been examined by an endocrinologist from the Ministry of Health, who had recommended that she continue her previous treatment. 40. By a decision of 9 September 2014, the investigator dismissed her request, finding that all the necessary measures had been taken for her medical treatment in the detention facility. 41. On 23 September 2014 the first applicant’s cell was searched. On the same day she was deprived of her right to make phone calls for one month. She was also obliged to take a cold shower because the shower room had no hot water. 42. On 26 September 2014 the first applicant’s lawyer asked the administration to provide him with a copy of the administrative decision depriving the first applicant of her right to make phone calls. He did not receive any response to his request. 43. On 14 October 2014 the first applicant’s lawyer asked the administration to provide him with a list of medication prescribed to the first applicant during her detention. He did not receive any response to his request. 44. By a letter of 21 October 2014 the deputy governor of the detention facility responded to the first applicant’s complaint of being unable to receive parcels following her husband’s arrest. He noted that she had received a parcel sent in by A.I. on 23 August 2014. The letter was however silent as to the delivery of any parcels between 5 and 23 August 2014. 45. In a statement dated 4 May 2015 submitted by the first applicant to the Court with the applicants’ reply to the Government’s observations, she stated that she had not been provided with any documents concerning her state of health. As regards her medical treatment in detention, she stated that she had been examined on 29 December 2014 and 12 March 2015 at the Baku Diagnostic Centre by C.W., a German doctor from Charité, a university hospital in Berlin. During the examination on 29 December 2014, she had been insulted and humiliated by a doctor named R.A when C.W. had been out of the room. In March 2015 the eyesight in her left eye had drastically deteriorated. The ophthalmologist who had examined her on 31 March 2015 stated that the same process would soon begin to happen to her right eye. She further stated that in detention her weight had dropped dramatically because of her illnesses and conditions of detention. 46. On 31 July 2014 the first applicant was admitted to the Baku Pretrial Detention Facility of the Ministry of Justice. 47. She was held with four other detainees in a cell measuring 26.32 sq. m designed to hold six detainees. The cell was adequately lit. It had two windows measuring 1.2 x 1.4 metres. The sanitary facilities were separate from the rest of the cell and were adequately ventilated. She was provided with food, water, bedding, clothing and other essentials. 48. Upon her arrival at the detention facility on 31 July 2014, she underwent a series of medical examinations. Fluorography and electrocardiography examinations did not reveal any changes to her pathological condition. Her neuropsychological status was evaluated as satisfactory. An ultrasound examination of her abdomen and external examination of her body confirmed that she had previously undergone surgery. General and biochemical blood tests concluded that her blood sugar level was a little higher than average. Following these examinations, she was diagnosed with chronic hepatitis C, type 2 diabetes, gallstones, a single cyst in the left kidney (measuring 0.91 cm) and pseudophakia (replacement of the natural lenses of the eyes with intraocular lenses). The Government provided the Court with copies of the results of the medical tests and examinations carried out that day. 49. It further appears from the extracts of the first applicant’s detention facility medical records (məhkumun tibbi kitabçası) submitted by the Government that on 31 July 2014 the doctor recommended that the first applicant continue the medical treatment for diabetes prescribed by her previous doctor, the drug Galvus. She also had the rules of a diabetic diet explained to her and was provided with a blood glucose meter to monitor the level of sugar in her blood. 50. On 2 August 2014 the first applicant was provided with medication brought in by her relatives, including 20 Galvus Met capsules, 90 Glifer capsules, 308 Galvus tablets, 30 Beloc tablets and 17 Spasmalgon tablets. The next delivery of medication, comprising 20 Spasmalgon tablets, took place on 29 August 2014. The first applicant’s need for medication during this period was fully covered by the medication delivered on 2 August 2014. As to the provision of diabetic food from 5 to 23 August 2014, upon her arrival at the detention facility, the first applicant was registered on a list of diabetic detainees and was consequently provided with diabetic food during this period. 51. On 19 August 2014 she was examined by an endocrinologist in the detention facility, who recommended that she continue her previous treatment. On the same day she also underwent a blood test to determine her sugar level and the state of the hepatitis C. The Government provided the Court with copies of the results of the medical tests and examinations conducted that day. 52. On 23 September 2014 she was examined by a detention facility doctor. She complained of general sickness without raising any particular complaints. 53. On 8 and 10 October 2014 she was examined by a neurologist and a therapist. No pathological conditions were revealed. 54. On 19 November 2014 the first applicant refused to be examined by an ophthalmologist at the National Ophthalmology Centre in order to establish the impact of the diabetes on her eyesight. According to the Government, on 25 and 26 November and 2 and 3 December 2014 she again refused to be examined by the detention facility doctors. They submitted various records compiled by the doctors to support this claim. 55. On 11 December 2014 she was examined by an endocrinologist who assessed her state of health as stable. The Government did not submit any documents concerning this medical examination. 56. On the same day she refused to undergo various medical examinations by a virologist, endocrinologist and physician from the Ministry of Health in the presence of the members of the joint working group on human rights and members of the public committee under the Ministry of Justice. However, she refused to sign anything to say that she had refused to be examined. 57. On 12 December 2014 the first applicant’s lawyer lodged a request with the prosecution authorities, complaining of the deterioration of her state of health in detention and asking for a forensic medical examination. The lawyer submitted that her hepatitis C and diabetes were serious and that since her detention her weight had dropped dramatically from 61 to 47 or 48 kg. The lawyer also pointed out that, as the first applicant had not been provided with adequate medical care in detention, she refused to be examined by the detention facility doctors. 58. On the same day the investigator in charge of the case ordered a forensic medical examination of the first applicant. The experts could only examine her on 8 January 2015 in the presence of her lawyer due to her initial refusal. They issued forensic medical report no. 424/KES, which indicated that the examination had begun on 18 December 2014 and ended on 28 January 2015. The report confirmed that the first applicant suffered from a number of illnesses, including hepatitis C and diabetes. However, the experts concluded that the illnesses were not life-threatening and could be treated in detention. The relevant part of the conclusion of the report reads as follows: “4. The illnesses revealed in L.Yunusova, being chronic in nature, do not pose any danger to her life and she does not currently need immediate and specialist treatment. 5. If necessary, L. Yunusova can receive outpatient treatment in her conditions of detention in respect of the hepatitis C and diabetes which were diagnosed. 6. L. Yunusova’s current state of health allows her to remain in detention and does not pose any danger to her life.” 59. In the meantime, on 29 December 2014 the first applicant underwent a number of medical tests and examinations in the presence of C.W from Charité. In particular, she underwent a general and biochemical blood test, an ultrasound examination of the abdominal cavity, a chest computed tomography (CT) scan, and electrocardiography and echocardiography examinations. The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any information regarding medical recommendations or prescriptions made by the doctors following the examinations dated 29 December 2014. 60. On 26 January 2015 the first applicant again underwent various medical tests and examinations. She was examined by a group of doctors, including international doctors C.W., L.U. (a professor from the Budapest Metropolitan Cancer Centre) and A.B. (a gynaecologist). The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any medical recommendations or prescriptions concerning the first applicant’s medical treatment. 61. On 12 March 2015 she was examined in the presence of C.W. and Z.R. (the director of ExaMed Medical Centre in Budapest). On the same day, she underwent a blood test and gynaecological ultrasound examination. The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any medical recommendations or prescriptions concerning the first applicant’s medical treatment. 62. The extracts of the first applicant’s detention facility medical records contained further information concerning her state of health from 31 July 2014 to 12 March 2015: - On 19 and 20 September 2014 she was provided with the relevant medication brought in by her lawyer and friends. - On 22 September 2014 she complained of constant exhaustion, general sickness and weakness. - On 23 September 2014 she again complained of general sickness and stayed in bed. That day and the next she was examined by a prison doctor who assessed her state of health as satisfactory. In particular, it was established that her blood pressure, temperature and sugar level were within the permitted range. - On 30 September 2014 she was provided with medication for diabetes brought in by her friends. - On 3 October 2014 she underwent a prophylactic medical examination and was provided with medication brought in by her friends. - On 8 and 10 October 2014 she was examined by a neurologist and a therapist. During the examination, she complained only of frequent urination. - On 17 October 2014 she underwent a prophylactic medical examination and was provided with medication brought in by her friends. - On 25, 28 and 31 October 2014 she was provided with medication brought in by her friends. - On 15, 21, 25 and 26 November she refused to be examined. - On 12 December 2014 she was provided with medication brought in by her friends. - On 3, 13 and 16 December 2014 she refused to be examined. - On 19 December 2014 she complained of a migraine and stress, but refused to be examined by a doctor. - On 23 December 2014 she was provided with medication brought in by her friends. - On 29 December 2014 she was examined in compliance with international standards by a group of doctors, including an international doctor. - On 6, 7 and 10 January 2015 she did not complain about her state of health. (Illegible) - On 23 January 2015 she complained of headaches, but refused to be examined by a doctor. - On 26 January 2015 she was again examined by a group of international doctors. - (date illegible) January 2015 she again refused to be examined by a doctor and was provided with medication brought in by her friends. - On 6 and 17 February 2015 she again refused to be examined. - On 19 February 2015 she complained of headaches. - On 12 March 2015 she was again examined by a group of doctors, including international doctors. 63. The second applicant was detained alone in a cell at the Pre-trial Detention Facility of the Ministry of National Security. 64. According to his lawyer, his state of health significantly deteriorated after his arrest. In particular, the domestic authorities had failed to provide him with adequate medical care in detention. He further submitted that in the absence of any information concerning the second applicant’s conditions of detention and medical care, it was impossible for him to give an account about either. 65. On 6 August 2014 the second applicant was admitted to the Pre-trial Detention Facility of the Ministry of National Security. 66. He was held in a cell measuring 8 sq. m designed to hold two inmates. He was placed alone in the cell at his own request. The cell had two beds and was adequately lit and ventilated. He was provided with hot and cold water, bedding, clothing and other essentials. 67. According to a letter by the governor of the detention facility dated 13 March 2015, heating was available and functioned well. The sanitary conditions were acceptable and the food served was of good quality. The second applicant also had the right to listen to the radio for five hours a day and to use the detention facility library. He was also entitled to receive one food parcel a week (weighing up to 31.5 kg) from his relatives. 68. Upon his arrival at the detention facility, the second applicant underwent a medical examination, during which he stated that he had suffered from arterial hypertension since 2006. However, he did not make any particular complaint about his state of health which was assessed as satisfactory. 69. On 7 August 2014 the second applicant underwent an electrocardiography examination which did not reveal any problems. 70. It further appears from a medical certificate dated 29 September 2014 from the head of the medical service of the detention facility that the second applicant’s state of health was satisfactory and that he had not sought medical attention during his pre-trial detention. 71. On 7 August 2014 a repeat offender, N.H., was transferred to the applicant’s cell. After being transferred, N.H. frequently subjected the first applicant to verbal and physical violence. She complained to the administration, but no action was taken. 72. On 19 September 2014 she lodged a request with the administration, complaining about N.H.’s unlawful behaviour. In particular, she complained that she had been subjected to physical violence and that the placement of a repeat offender in her cell was not in compliance with domestic law. 73. On 23 September 2014 the first applicant was subjected to verbal and physical violence by Major Y., a prison guard. 74. By a letter of 21 October 2014, the governor of the detention facility responded to the first applicant’s request of 19 September 2014. He claimed that she had not been subjected to violence by N.H. and that her conditions of detention complied with the established standards. 75. Following publication in the media of information concerning the first applicant’s alleged beating in the detention facility, on 25 September 2014 an investigator from the Sabunchu District Prosecutor’s Office ordered a forensic medical examination. He asked experts to establish whether there were any signs of ill-treatment on the first applicant’s body. 76. Following examinations on 29 September and 10 October 2014, the experts issued forensic medical report no. 285 dated 13 October 2014. They concluded that there were no signs of injury on the first applicant’s body. 77. On 22 October 2014 the investigator in charge of the case refused to institute criminal proceedings, finding that there was no evidence that the first applicant had been subjected to violence in the detention facility. The decision relied on the conclusions of the forensic medical report of 13 October 2014, statements by the first applicant’s cellmates and video footage from the detention facility. 78. No appeal was lodged against this decision. 79. Following the indication of the interim measure under Rule 39 of the Rules of Court by the Acting President of the Section on 30 September 2014, the Government responded by a letter dated 3 November 2014 submitting that the relevant domestic authorities had been immediately informed of the interim measure indicated by the Court under Rule 39. They further submitted that the applicants’ state of health was stable and did not require their transfer to an appropriate medical facility. The letter also contained an overview of the medical examinations that the applicants had undergone in October 2014, although no medical documents were attached to the letter. 80. The Government subsequently provided the Court with monthly information reports concerning the applicants’ state of health and medical treatment in detention. All the monthly reports submitted were one or two pages long. They began in a standard format and said that “the applicants’ state of health is stable and does not require [their] transfer to a specialist medical facility”. They were not accompanied by any medical documents. 81. The reports sent by the Government from November 2014 to June 2015 contained the same information in respect of the first applicant’s state of health and medical treatment as they submitted in their observations of 27 May 2015. As regards the second applicant’s state of health and medical treatment, all the reports contained the two following sentences: “Over the past month, the second applicant’s state of health was under constant medical supervision, and it was assessed as satisfactory; no deterioration in his health has been noted. (date), the second applicant passed [his] latest general medical examination, which did not reveal any deterioration in his health.” 82. As regards the subsequent reports, the two-page report dated 30 July 2015 indicated that on 13 July 2015 the first applicant had been examined by C.W. in the presence of local doctors. The results of the examination showed that her state of health was stable and did not reveal any pathological conditions or signs of deterioration. C.W. recommended that the first applicant take Harvoni and she started treatment with this drug on 14 July 2015. As regards the second applicant, the report contained the above-mentioned two sentences. No medical documents were attached to the information report. 83. The two-page report dated 7 September 2015 indicated that on 14 August 2015 the first applicant had again been examined by C.W. in the presence of local doctors. The results of the examination showed that her state of health was stable and did not reveal any pathological conditions or signs of deterioration. C.W. prescribed the drug Velmetia for the regulation of her blood sugar level. As regards the second applicant, in addition to the above-mentioned two sentences, the report indicated that on 3 August 2015 at a court hearing, the second applicant had asked for medical help. His blood pressure had been 210/110 mm Hg and could be stabilised following the intervention of the emergency services. The hearing had been postponed upon a doctor’s advice. No medical documents were attached to the information report. 84. The one-page report dated 6 October 2015 indicated that the first applicant had finished her medical treatment with Harvoni. The report also contained information relating to her blood pressure and sugar level. As regards the second applicant, the report contained the above-mentioned two sentences. No medical documents were attached. 85. The reports dated 19 November and 2 December 2015 contained information relating to the first applicant’s blood pressure and sugar level and indicated that on 3 and 7 October 2015 the first applicant had refused to be examined by the doctors. On 30 October 2015 she had been examined by C.W, at whose request she had been transferred to the medical department of the Prison Service. As regards the second applicant, he had been examined by C.W on 30 October 2015. His blood pressure had been 224/122 mm Hg and he had been prescribed with the relevant medical treatment. On 2 November 2015 he had been transferred to the medical department of the Prison Service, where he had received the necessary medical treatment. Following this treatment, his blood pressure had lowered to 160/110 mm Hg. No medical documents were attached to the information report. 86. On an unspecified date the criminal investigation was completed and the applicants’ case was referred to the Baku Assize Court for trial. 87. On 13 August 2015 it convicted and sentenced the applicants to eight and a half and seven years’ imprisonment respectively. 88. On an unspecified date the applicants appealed against this judgment to the Baku Court of Appeal. 89. It appears from the information submitted by the Government that on an unspecified date the medical department of the Prison Service requested the Baku Court of Appeal to change the second applicant’s detention pending trial due to his emotional state and the possible repeat of hypertensive crisis. The Government did not provide the Court with a copy of this request. 90. On 12 November 2015 the Baku Court of Appeal granted the request and ordered the second applicant’s release. The Court was not provided with a copy of this decision. 91. On 9 December 2015 the Baku Court of Appeal quashed the Baku Assize Court’s judgment of 13 August 2015 and gave the applicants a conditional sentence of five years’ imprisonment. The first applicant was released from the court. | 1 |
test | 001-180841 | ENG | MNE | COMMITTEE | 2,018 | CASE OF KEŠELJ AND OTHERS v. MONTENEGRO | 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) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić | 4. On 28 February 1996 the applicants and the debtor (JSP “Tara” Cetinje) reached a court approved settlement before the Cetinje Municipal Court, whereby the debtor undertook to pay the applicants specified amounts in respect of pecuniary and non-pecuniary damage. 5. The settlement became final on the same date. 6. The debtor ultimately paid part of the amounts determined in the settlement. 7. On 26 May 1997 the Podgorica Commercial Court opened insolvency proceedings against the debtor. 8. On 19 August 1997 the applicants submitted their respective claims based on the settlement. 9. In the course of the insolvency proceedings the Podgorica Commercial Court acknowledged the applicants’ claims. 10. On 23 December 2009 the Podgorica Commercial Court terminated (zaključio) the insolvency proceedings against the debtor, but continued the proceedings against the debtor’s estate. This decision was upheld by the Appellate Court on 9 April 2010. 11. The proceedings are still pending. 12. On 14 October 2010 the Constitutional Court dismissed the applicants’ constitutional appeal on procedural grounds. 13. The court settlement in question remains partly unenforced to the present day. 14. It transpires from the case file that at the time the court settlement was concluded and became final (see paragraphs 4 and 5 above) the debtor was a company predominantly comprised of Statecontrolled capital. The Government neither contested this nor provided any evidence to the contrary. | 1 |
test | 001-179422 | ENG | ESP | CHAMBER | 2,017 | CASE OF LÓPEZ ELORZA v. SPAIN | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (the United States of America) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 8. The applicant was born in 1982 in Venezuela and is currently detained in Valdemoro Prison. 9. The applicant has been living in Spain with his family since 2003. 10. In an indictment filed on 15 November 2005 in the United States (hereinafter, “the US”) District Court for the Eastern District of New York, the applicant was charged with one count of conspiracy to import one or more kilograms of heroin, a Schedule I controlled substance, into the United States in violation of Title 21, United States Code, sections 952(a), 960(a)(1), 960(b)(1)(A), and 963, and Title 18, United States Code, sections 3551 et seq. (Count Four); and one count of conspiracy to distribute and possess with intent to distribute one or more kilograms of heroin, a Schedule I controlled substance, in violation of Title 21, United States Code, sections 841(a)(1), 841(b)(1)(A)(I), and 846, and Title 18, United States Code, sections 3551 et seq. (Count Five). Each of those offences carried a possible maximum term of life imprisonment. 11. By diplomatic note of 6 December 2013, the US authorities transmitted a request to the Spanish authorities for the applicant’s provisional arrest with a view to his extradition. 12. On 13 December 2013 the applicant was arrested in Lugo by the Spanish police. The Central Court of Investigation No. 4 (Juzgado Central de Instrucción) initiated extradition proceedings on the same day and ordered his provisional release. The extradition request was then allocated to the Criminal Section of the Audiencia Nacional. 13. On 31 March 2014 the Public Prosecutor’s Office agreed to the applicant’s extradition. 14. On 1 October 2014 the Audiencia Nacional granted the extradition request on condition that the US authorities provided a guarantee that any life sentence that was handed down would not be irreducible. The applicant lodged an appeal against that decision. 15. On 3 November 2014 the ruling was upheld by the Plenary of the Criminal Section of the Audiencia Nacional. The applicant subsequently lodged a plea of nullity (incidente de nulidad de actuaciones) against that decision. On 19 December 2014 the Plenary of the Criminal Section of the Audiencia Nacional ruled against the applicant, arguing that the object and purpose of annulment proceedings was not to serve as a second appeal instance against an extradition decision, but to correct possible violations of a fundamental right committed in a decision which was not subject to appeal. 16. On 3 December 2014 the U.S. Embassy issued a note verbale, which provided the following answer: “The United States notes that the bilateral extradition treaty between the United States and Spain does not provide a basis for conditioning extraditions on assurances relating to life sentences. While the United States is not, therefore, obligated to provide the assurance requested, in consideration of the request of the Spanish Court and given the intentions of the U.S. prosecutor, the United States is prepared in this particular case to inform the Government of Spain as follows: Should LOPEZ ELORZA be convicted of either of the charges in the indictment filed on 15 November 2005 for which extradition is sought, he will not be subject to an unalterable sentence of life imprisonment because, if a life sentence is imposed, he may seek review of his sentence on appeal and he may subsequently seek relief from his sentence in the form of a petition for a pardon or commutation to a lesser sentence ...” 17. On 19 January 2015 the note verbale was communicated to the interested parties. On 23 January 2015 the Public Prosecutor submitted a report stating that the guarantees provided by the United States were adequate and that consequently extradition should be granted. 18. On 24 February 2015 the Audiencia Nacional issued a decision (providencia) assessing the US guarantees, deeming them to be “sufficient”. 19. The applicant brought two súplica appeals against that decision, the first of which was lodged on 28 February 2015. The applicant argued that the decision of 24 February 2015 should be declared null and void since the matter should have been addressed through an auto, instead of a providencia. Secondly, the applicant contested the argument that the US Government had provided sufficient guarantees, stating that they were identical to the ones that had already been analysed by the Court in the case of Trabelsi v. Belgium (no. 140/10, ECHR 2014 (extracts)) and found to be in violation of Article 3 (inter alia). The second súplica appeal was lodged on 2 March 2015 and included three different requests. First, he requested that the decision on whether the US guarantees were sufficient be addressed and dealt with by the Plenary of the Audiencia Nacional. He also sought the recusal of three judges who were members of the bench which had initially issued the decision of 24 February 2015. Lastly, he lodged an application for the general recusal of all the judges of the Audiencia Nacional who “had been invited by the United States of America on holiday trips” which had been paid for by that country. 20. On 25 March 2015 the Audiencia Nacional issued a decision stating the following: “FIRST - We will examine in the first place the plea for a referral to the Plenary formation of this Court of the decision about the sufficiency of the assurances given by the U.S. Government concerning the possibility for two life sentences to be imposed on the extradited person. This Chamber, given that the President of this Court has duly empowered it to decide about this matter, considers that the referral is not necessary as the assurances given are correct and sufficient, and furthermore show compliance with the ECtHR case-law in the Trabelsi vs Belgium case referred to by the appellant .... Therefore, if the assurances given by the U.S. Government are the following: “Should LOPEZ ELORZA be convicted of either of the charges in the indictment filed on 15 November 2005, he will not be subject to an unalterable sentence of life imprisonment, he may seek review of his sentence on appeal and he may subsequently seek relief from his sentence in the form of a petition for a pardon or commutation to a lesser sentence;” we can conclude that the warranty expresses the actual existing legal means for the revision of a sentence of life imprisonment in a way that shows that this punishment is not irreducible during the whole life-span of the person, complying with what the ECtHR has requested in order to consider that there has been no violation of Article 3 of the Convention. That is why there is no need to refer a decision on this matter to the Plenary formation of this Court.” 21. Additionally, the Audiencia Nacional agreed on opening a procedure aimed at addressing the issue of the recusals requested by the applicant through a full report, at the same time ordering the suspension of the extradition proceedings until the recusal proceedings had been terminated. 22. On 12 May 2015 the Audiencia Nacional issued a decision (acuerdo gubernativo) dismissing the applicant’s request. 23. On 25 May 2015 the Audiencia Nacional ordered the applicant’s provisional detention (auto). The applicant lodged another súplica appeal against that decision and requested that the extradition proceedings be suspended on the grounds that no decision had been taken on the issues complained of in the first súplica appeal of 28 February 2015. 24. In a decision of 28 May 2015 the Audiencia Nacional rejected the applicant’s request to stay the extradition proceedings, finding that the complaints contained in the first súplica appeal had already been dealt with in the decision of 25 March 2015. 25. On 1 June 2015 the applicant lodged another súplica appeal against the decisions of 25 May 2015 and 28 May 2015, contesting the reasoning as regards his request to stay the extradition proceedings and emphasising that no decision had been taken on the issues complained of in the first súplica appeal of 28 February 2015. 26. On 3 June 2015 the Audiencia Nacional issued a new decision dismissing the súplica appeals lodged by the applicant and confirming the decision on the applicant’s imprisonment pending extradition to the United States. In particular, the decision stated the following: “The applicant considers that his súplica appeal lodged against the decision of 24 February 2015 has not been answered ... . This Court refers at this point to what was already established in its decision of 25 March 2015 ... . Nevertheless, in order to clarify any doubts that the applicant might have concerning whether or not he has received an answer to his súplica appeal, we [the Court] will resolve here the issued raised in that appeal. ... The guarantees provided have been considered sufficient for the Court. Consequently, regardless of the judgment mentioned by the applicant, we consider that they comply with the requirements established in the ECtHR’s judgment Hutchinson v. United Kingdom [(no. 57592/08, 3 February 2015)], as well as the judgment of 13 November 2014 [Bodein v. France, no. 40014/10, 13 November 2014)], lodged by a French citizen... Taking into consideration the above-mentioned reasoning, the Court Decides to dismiss the súplica appeals referred to in the present ruling, maintaining the order of imprisonment for Andrés López Elorza, in view of his extradition to the United States of America”. 27. On 19 June 2015 the applicant was detained for the purposes of being extradited to the United States. 28. On 22 June 2015 the applicant lodged an amparo appeal with the Constitutional Court against the extradition decision. He asked for interim measures, requesting the Constitutional Court to order a stay of the extradition while the case was still pending. He contended, inter alia, that the assurances provided by the US authorities did not fulfil the criteria for assessing the reducibility of a life sentence and that the extradition would amount to a violation of his right not to be subjected to inhuman or degrading treatment or punishment. 29. On 1 July 2015 the Constitutional Court issued a decision declaring the amparo appeal and the request for interim measures inadmissible. In particular, it found that the part of the amparo appeal concerning the validity of the assurances given by the US authorities and about a possible violation of the applicant’s right not to be subjected to inhuman or degrading treatment had been lodged too late as the alleged violations stemmed from the decision of 25 March 2015, thus the 30-day timelimit established in section 44(2) of the Organic Law on the Constitutional Court No. 2/1919 had already passed when he had lodged his amparo appeal. 30. On 2 July 2015 the applicant lodged a request for interim measures with the Court under Rule 39 of the Rules of Court. He requested the Court to indicate to the Spanish Government that his extradition should be stayed pending the outcome of proceedings before the Court. The request was granted on the same day on a temporary basis until 1 August 2015, and the Government were asked the following questions: “a.- Does the applicant risk under US criminal law, in respect of the charges, a maximum penalty that precludes early release and/or release on parole? b.- What are the concrete mechanisms and under what US legal basis is the applicant entitled to review his possible final life sentence? In this sense, are the appeal, pardon and other review mechanisms referred to in the note verbale of 3 December 2014 the ones described in the case of Trabelsi v. Belgium (application no. 140/10, 4 September 2014, § 27)?” 31. On 23 July 2015 the Government submitted their response and attached a document issued by the Office of International Affairs of the US Department of Justice called “supplemental information to Spain on Sentencing Issues in Relation to Andres Lopez Elorza, a/k/a ‘Andres Lopez Flores’ (hereinafter, “the US report”). The report stated the following: “By way of introduction, Lopez Elorza’s extradition is sought in order for him to stand trial on federal narcotics offenses in the Eastern District of New York. In essence, Lopez Elorza, a veterinarian, is charged with having been a member of a conspiracy between September 2004 and January 2005, the goal of which was to import heroin into the United States for subsequent distribution, in which Lopez Elorza’s role was to surgically implant packages of liquid heroin into the bodies of dogs that later were transported to the United States. The charges followed the search, in January 2005, of a farm Lopez Elorza operated in Medellin, Colombia, in which law enforcement authorities seized six puppies into which three kilograms of liquid heroin had been surgically implanted. The six puppies were bound for the United States, and the heroin they carried was surgically removed. After the search of his farm, Lopez Elorza fled Colombia.” 32. As regards the first question put to the Government, the US report argued that there were pretrial factors that could affect the applicant’s sentencing. In particular, the report noted the following: “Before any trial, Lopez Elorza could, with the advice of his lawyer, decide to give up the right to a trial and plead guilty to the charges in the indictment, with or without the agreement of the prosecution. See Federal Rule of Criminal Procedure 11(a). A timely admission of guilt is a factor which could reduce the sentence the judge decides to impose following a conviction. In the United States, the vast majority of criminal cases are resolved by guilty pleas. Lopez Elorza may seek to reach an agreement with the prosecution wherein he would plead guilty in exchange for certain favorable actions, such as an agreement to allow him to plead guilty to fewer than all the charges in the indictment (with the remainder of the charges to be dismissed at sentencing), or even to lesser charges, or in exchange for the government’s promise to affirmatively recommend to the court that a particular lesser sentence be imposed. The agreement may also include the parties’ recommendation as to the appropriate sentence that - depending upon the type of plea agreement that is negotiated - may or may not bind the judge regarding the sentence that will be imposed. Such agreements are within the discretion of the government to enter into, and the judge may also decline to approve an agreement she or he does not believe to be in the interests of justice. The agreement may include, inter alia, an agreement to cooperate with U.S. authorities. Thus, if Lopez Elorza were willing and able to provide substantial assistance to the United States in the investigation or prosecution of another person who had committed a crime, a plea agreement might include a promise by the government attorneys, in exchange for his guilty plea, to file a motion with the court asking that Lopez Elorza’s cooperation be taken into account and permitting the Court to impose a lower sentence that it might otherwise impose. Title 18, United States Code, Section 3553(e); United States Sentencing Guidelines, Section 5K1.1. In such cases, it is not atypical for a judge to impose a sentence that is significantly less than the Guidelines recommendation.” 33. It also observed that “[i]f, however, Lopez Elorza decides not to plead guilty and instead exercise his right to a trial, and if he is found guilty of one or more charges, his sentencing exposure will vary, depending on the nature of the charges on which he is found guilty. Moreover, the judge will have broad discretion to determine the appropriate sentence [...]”. 34. As regards the estimated sentence that the applicant could face, the US report stated firstly that, “In imposing a sentence in a federal criminal case, the judge must consult the U.S. Federal Sentencing Guidelines”. It added that the Guidelines were advisory since the judge had “the discretion to impose a sentence outside the applicable Guidelines range so long as the court states ‘with specificity,’ both at sentencing and in the written judgment and commitment order, its reason for doing so”. It additionally stated that,”. Moreover, the decision whether to sentence a person convicted of multiple counts concurrently or consecutively was at the discretion of the court. Section 3584 of Title 18 of the US Code, states, in part, that “[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively”. The report further stressed the following: “Prior to sentencing, a probation officer will prepare a presentence report that contains information about the defendant’s offense, his criminal history, other background information, and a calculation of the advisory sentencing range under the Sentencing Guidelines. The defendant has the right to object to the information and conclusion in the present report. Later, during the sentencing phase of the proceedings, defense counsel will be able to present to the judge various mitigating factors to consider that may result in the reduction of his sentence. Specifically, under Title 18, United States Code, Section 3553(a), in determining the particular sentence imposed on a defendant, the court shall consider: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to promote respect for the law, punishment for the offense, deter the defendant or others from committing similar criminal conduct, and the need to protect the public; (3) the kinds of sentences available; (4) the applicable guideline range; (5) the need to provide the defendant with educational or vocational training, medical care, or other correctional treatment; (6) the need to avoid unwarranted sentence disparities; and (7) the need to provide restitution to the victims of the offense(s). In assisting the court in considering the above seven factors, defense counsel will be able to present to the court in detail any mitigating factors relating to these criteria. This would enable the defense to provide to the sentencing court information regarding Lopez Elorza’s background and circumstances, including: his family environment and relationships, the environment in which he was raised, his work history,... socioeconomic factors including educational opportunities or lack thereof, his physical and psychological well-being and any past or current treatment, prior criminal conduct, if any, and any resultant rehabilitative programs and periods of probation, incarceration, and parole, as well as Lopez Elorza’s longterm educational, vocational, and sociological goals”. 35. The report noted that there were many factors that contributed to the imposition of a sentence and that it was “impossible to address every conceivable permutation that could occur or every possible scenario that might arise”. However, the report indicated that according to the US Federal Sentencing Guidelines, the advisory sentencing range was “188 to 235 months incarceration, far less than the possible life sentence provided for under the statutes with which he was charged”. 36. Furthermore, the report stated that under section 3553(a) of Title 18 of the US Code, there was a “need to avoid unwarranted sentence disparities”. In that regard, the report stated that several of the applicant’s co-conspirators had already been sentenced in a related case before the same judge who had been assigned to the applicant’s case. One of the co-conspirators “faced a Guidelines range of 188 to 235 months and received a sentence of 72 months incarceration”, another “faced a Guidelines range of 78 to 87 months and received a sentence of 14 months incarceration” and a third had “faced a Guidelines range of 70 to 87 months and received a sentence of Time Served (approximately 12 months incarceration)”. The US report also noted that none of those defendants had entered into cooperation agreements with the government. Consequently, the sentences imposed on the applicant’s co-conspirators by the same judge who had been assigned to the applicant’s case “[could] be of value in assessing the sentence that will be imposed on him”. 37. The report concluded that while it was possible that any available maximum sentence could be imposed for an offence, under the circumstances present in this case, “the risk of López Elorza receiving such a sentence is low”. 38. As regards the second question, the US report stated that if the applicant was sentenced to a life term, he could benefit from a variety of mechanisms to seek to have the sentence invalidated or reduced or to obtain early release. 39. Concerning the applicant’s right to invalidate or reduce his sentence, the Government stated that the applicant would have the right under US law to lodge an appeal with the Court of Appeals, asking for a reversal of his conviction “based on an error in the proceedings”. The applicant would also be able to “ask the Court of Appeals to review the appropriateness of his sentence”. He could argue that a life sentence was “unreasonable” in the circumstances of his case. The report also stated that even after the applicant had exhausted his rights at trial and on appeal, he could under US law file “a motion in the trial court claiming that his life sentence was imposed ‘in violation of the Constitution or the laws of the United States’, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack”. 40. Concerning the applicant’s right to obtain early release, the report specifically stated that “since 1987, there has been no federal parole system in the United States”. The applicant, however, could ask for early release if he provided substantial assistance after his conviction and the imposition of his sentence. In addition, US law also allowed for compassionate release under section 3582 of Title 18 of the US Code. The report specifically stressed that the Bureau of Prisons could reduce the applicant’s sentence if it found that there was “an extraordinary and compelling reason to do so; for example, if a medical condition arose with López Elorza that would warrant such a modification”. Finally, the applicant could also seek executive clemency in the form of commutation (reduction) of his sentence. The report noted that in cases similar to the applicant’s, commutation of life sentences was not “a rare occurrence”. It gave as an example that of 13 July 2015, when President Obama had commuted the life sentences of “fourteen persons who had been convicted of drug related offenses”. 41. On 31 July 2015 the interim measures under Rule 39 were extended and the Court requested that the Government stay the applicant’s extradition to the United States while the proceedings were pending before the Court. | 0 |
test | 001-166689 | ENG | DEU | CHAMBER | 2,016 | CASE OF JOHANSEN v. GERMANY | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary | 5. The applicant was born in 1970 and currently lives in London. 6. On 16 October 2008 the Frankfurt am Main District Court issued a penal order against the applicant. Having regard to the written submissions the applicant had made on the charges to the prosecution, the court found the applicant guilty of withholding and embezzlement of employee salaries and sentenced her to a fine of 100 daily rates of EUR 50. 7. According to the record of service, a form containing several options as to the way in which court mail was served, which was issued by a courier and returned to the District Court, the courier had attempted to hand over the penal order to the applicant at her residence on 7 November 2008 at 2.10 p.m. As this had not been possible, the courier had served the penal order on the applicant by placing it in the mailbox appurtenant to her residence (Article 180 of the Code of Civil Procedure, see paragraph 29 below). 8. On 27 December 2008 the applicant filed an objection against the penal order with the Frankfurt am Main District Court and applied for the reinstatement of the proceedings. She argued that her objection was not time-barred as the penal order had not been served on her on 7 November 2008. She had only learnt about the existence of a penal order issued against her on 20 December 2008 when she had found in her mailbox a bill of the court cashier requesting her to pay the fine imposed in the penal order. On calling the court cashier, she had been informed of the order’s alleged service on 7 November 2008. 9. The applicant claimed that she was sure that no penal order had been served on her on 7 November 2008. She stated that her counsel, Mr N. Dotterweich, and her husband had been at a court hearing at the Hanau District Court on 7 November 2008 and had therefore come to visit her at her house on that day. In the afternoon she had bade farewell to her counsel. When accompanying him to the front gate, she had checked her mailbox for her daily mail in his presence. She had found neither a penal order nor a notice that a penal order had been deposited in another place. 10. On 6 February 2009 the applicant’s counsel supplemented the applicant’s submissions. He claimed that he, the applicant, the applicant’s mother who was living in the same house as the applicant and the applicant’s husband who lived in London had all been at the applicant’s house at the time the penal order had allegedly been served. Counsel and the applicant had returned to the applicant’s residence at around 12.15 p.m. after having attended a hearing at the Hanau District Court. The applicant’s husband had arrived shortly before them and had been waiting for them, together with the applicant’s mother. 11. The applicant’s counsel explained that no one had rung the doorbell to hand over the penal order while they had been at the applicant’s residence. They would have noticed the doorbell ringing, as the applicant had dogs, which were outside and would have barked. At around 3.30 p.m. they had all left the house. At that moment the applicant had taken the mail out of her mailbox. She had immediately checked the contents. There had been no official letter from a court. Such a letter would have stood out and would therefore have been noticed by the persons present, as official court letters came in bright yellow envelopes. The applicant’s husband, counsel and the common daughter of counsel and the applicant had then left. 12. The applicant’s counsel further submitted that the private postal service company J., which had been in charge of the delivery of official court mail for the Frankfurt am Main District Court, was known for its unreliability. In December 2008, hence shortly after the alleged delivery, the company had had to register as insolvent. 13. The applicant’s counsel added to his submissions the affirmations in lieu of an oath of the applicant’s mother, the applicant’s husband and himself confirming his submissions. The applicant’s mother stated, in particular, that she had paid special attention when her daughter took the mail out of the mailbox as, owing to the fact that they lived in the same house, part of her mail was sometimes put into her daughter’s mailbox. The applicant’s husband declared that when the applicant had taken out the mail he had paid special attention because he had formerly also lived at that address and sometimes mail addressed to him was still sent there. 14. On 9 April 2009 the Frankfurt am Main District Court rejected the applicant’s objection against the penal order as inadmissible and dismissed her application for reinstatement of the proceedings. The court considered it proved that the penal order had been served on the applicant on 7 November 2008 at 2.10 p.m. as was certified by the record of service. The applicant had therefore failed to file her objection, which was received by the court on 27 December 2008, within the two-week time-limit and the penal order had hence become final (see paragraph 27 below). 15. The District Court was also of the view that there was no reason to grant the applicant reinstatement of the proceedings, as it was not apparent why the applicant had been prevented, through no fault of her own, from submitting her objection against the penal order within the two-week timelimit after the delivery of 7 November 2008. 16. The court found that the record of service had probative value for the fact that the penal order had been put into the applicant’s mailbox by the courier on 7 November 2008 (Article 418 of the Code of Civil Procedure, see paragraph 29 below). In accordance with the settled case-law, this could only be disproved if facts were presented that convinced the court that there was no possibility that the facts certified by the record of service were correct. The applicant had not been able to furnish the court with such counter-evidence. 17. In its assessment of evidence, the Frankfurt am Main District Court had regard to the written statement of the courier who had delivered the applicant’s penal order, whom it had had interviewed by the police as a witness. The courier had explained that she had been registered with J. company to help her husband with the delivery of the court mail since October 2008. When asked by the police to describe how she had delivered official court letters she had stated that official court letters had always been in yellow envelopes. She confirmed that she always rang the doorbells of the addressees. If they did not respond she would deposit a “letter of notification” (Benachrichtigungsschreiben) in the mailbox. She confirmed that the signature on the record of service concerning the applicant was hers, the date and the time had been filled in by her husband. She did not specially remember either the service on 7 November 2008 or the applicant’s house. When cautioned that she did not have to respond to questions if there was a risk that she might incriminate herself, she had confirmed that she was sure she had served the mail correctly or left a “notice” (Benachrichtigung). 18. The District Court concluded that the courier had testified that she had always served the official court mail in accordance with the rules. Moreover, when asked by the police, the Frankfurt am Main branch of J. company had confirmed that no irregularities were known to the company with regard to the service of the court mail. The courier had had no incentive to embezzle the applicant’s mail. 19. The court considered, in contrast, that the story described by the applicant to disprove the service of the penal order seemed fabricated. It took into consideration that the declarations in lieu of an oath all came from persons who were close to the applicant and who had a considerable interest in the outcome of the criminal proceedings against her. It further noted that the applicant had not mentioned all the persons who had allegedly been present when she checked her mail in her first submission of 27 December 2008. Moreover, it was not in accordance with general experience in life for someone to check his mail in front of all his family members. As it had been proved by the record of service that the penal order had been put into the applicant’s mailbox, potential shortcomings by the courier’s failure to ring the doorbell first – which according to the applicant would have resulted in her dogs barking, which they allegedly had not done at the relevant time – would, in any event, have been remedied by the actual service. 20. On 22 April 2009 the applicant, represented by her lawyer, appealed against the decision of the Frankfurt am Main District Court. She claimed, in particular, that according to articles in a national newspaper, the unreliability of the postal service company J. had been revealed, inter alia, by the Oldenburg Court of Appeal and the Kiel Regional Court and that an Aachen local newspaper had reported that court mail had been found in a refuse shed. 21. The applicant further pointed out that the courier’s witness statement contradicted the record of service. The courier had described the service of the penal order by way of putting a written notice into the addressee’s mailbox, which constituted a substituted service in accordance with Article 181 of the Code of Civil Procedure (see paragraph 29 below). In contrast, the record of service certified service by way of placing the penal order itself in the applicant’s mailbox, which constituted substituted service in accordance with Article 180 of the Code of Civil Procedure (see paragraph 29 below). 22. On 10 June 2009 the Frankfurt am Main Regional Court dismissed the applicant’s appeal against the decision of the Frankfurt am Main District Court. The court, essentially endorsing the reasons given by the District Court, confirmed the District Court’s finding that the penal order had effectively been served on the applicant on 7 November when placed in the applicant’s mailbox (Article 37 of the Code of Criminal Procedure, read in conjunction with Article 180 of the Code of Civil Procedure, see paragraphs 28-29 below). 23. The Regional Court considered that the applicant had not furnished the court with sufficient counter-evidence. The court did not have to decide whether J. company had been reliable in all cases. In the case before it, the courier and her husband had had no reason to commit post embezzlement and forgery of documents. The affirmations in lieu of oaths could not prove that the penal order had not been in the mailbox on 7 November 2008. The affirming persons had not testified that they had constantly paid special attention to a possible ringing of the doorbell. Furthermore, it could not be ruled out that the applicant had been inattentive when going through the mail because of the presence of guests. It was likely that the penal order had been hidden among other mail and had probably inadvertently been thrown away or simply ignored. 24. On 14 August 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which she claimed that her constitutional right to be heard and her right to a fair trial had been breached in the criminal proceedings against her. 25. On 22 September 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 1891/09). The decision was served on the applicant’s counsel on 30 September 2009. | 0 |
test | 001-155105 | ENG | EST | GRANDCHAMBER | 2,015 | CASE OF DELFI AS v. ESTONIA | 1 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information) | András Sajó;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Robert Spano;Vincent A. De Gaetano;Ksenija Turković | 10. The applicant company is a public limited liability company (aktsiaselts), registered in Estonia. 11. The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia and also operates in Latvia and Lithuania. 12. At the material time, at the end of the body of the news articles there were the words “add your comment” and fields for comments, the commenter’s name and his or her e-mail address (optional). Below these fields there were buttons labelled “publish the comment” and “read comments”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “read comments” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers’ comments daily, the majority posted under pseudonyms. 13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (an Estonian word for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, there was a system of automatic deletion of comments that included certain stems of obscene words. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately. 14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi’s Internet site there were “Rules of comment” which included the following: “The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ... Delfi prohibits comments whose content does not comply with good practice. These are comments that: – contain threats; – contain insults; – incite hostility and violence; – incite illegal activities ... – contain off-topic links, spam or advertisements; – are without substance and/or off-topic; – contain obscene expressions and vulgarities ... Delfi has the right to remove such comments and restrict their authors’ access to the writing of comments ...” The functioning of the notice-and-take-down system was also explained in the “Rules of comment”. 15. The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure the freedom of expression as well as the protection of everyone’s honour and good name, including sections 1043 and 1046 of the Obligations Act (Võlaõigusseadus). 16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “SLK Destroyed Planned Ice Road”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “SLK” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. L. was a member of the supervisory board of SLK and the company’s sole or majority shareholder at the material time. 17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed against L. 18. On 9 March 2006 L.’s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments: “1. (1) there are currents in [V]äinameri (2) open water is closer to the places you referred to, and the ice is thinner. Proposal – let’s do as in 1905, let’s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag 2. bloody shitheads... they bathe in money anyway thanks to that monopoly and State subsidies and have now started to fear that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew! 3. good that [La.’s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven! 4. [little L.] go and drown yourself 5. aha... [I] hardly believe that that happened by accident... assholes fck 6. rascal!!! [in Russian] 7. What are you whining for, knock this bastard down once and for all [.] In future the other ones ... will know what they risk, even they will only have one little life. 8. ... is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn’t he. 9. “a good man lives a long time, a shitty man a day or two” 10. If there was an iceroad, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will cross [the strait] anyway and if I drown, it’s your fault 11. and can’t anyone defy these shits? 12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope. 13. wonder whether [L.] won’t be knocked down in Saaremaa? screwing one’s own folk like that. 14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this. Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the state is powerless towards them – it is really them who govern the state), because they only live for today. Tomorrow, the flood. 15. this [V.] will one day get hit with a cake by me. damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that ... a pig is going to be slaughtered. no way 16. bastards!!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!! 17. Estonian state, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas ... and this cannot at all be compared to a ram’s Michaelmas. Actually sorry for [L.] – a human, after all... :D :D :D 18. ... if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed ... will he [then] dare to act like a pig for the third time? :) 19. fucking bastard, that [L.]... could have gone home with my baby soon ... anyway his company cannot guarantee a normal ferry service and the prices are such that ... real creep ... a question arises whose pockets and mouths he has filled up with money so that he’s acting like a pig from year to year 20. you can’t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the state and [L.] do not care about the people’s opinion) ... just for fun, with no greed for money – I pee into [L.’s] ear and then I also shit onto his head. :)” 19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company. 20. On 23 March 2006 the applicant company responded to the request from L.’s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages. 21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company. 22. At the hearing of 28 May 2007 the representatives of the applicant company submitted, inter alia, that in cases like that of the “Bronze Night” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, also on its own initiative. 23. By a judgment of 25 June 2007 L.’s claim was dismissed. The County Court found that the applicant company’s liability was excluded under the Information Society Services Act (Infoühiskonna teenuse seadus), which was based on the Directive on Electronic Commerce (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market). The court considered that the comment environment in the applicant company’s news portal was to be distinguished from the portal’s journalistic area. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them. 24. On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company’s liability was excluded under the Information Society Services Act. The County Court’s judgment was quashed and the case was referred back to the first-instance court for fresh consideration. 25. On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company. 26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal’s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had placed a note on its Internet site to the effect that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments. 27. The County Court found that the news article itself published in the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory and impaired L.’s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L.’s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage. 28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court’s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments from the portal. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims. 29. The Court of Appeal rejected the applicant company’s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to add comments. Thus, the applicant company was a provider of content services rather than of technical services. 30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal’s judgment in substance, but partly modified its reasoning. 31. The Supreme Court held as follows: “10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal’s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure. 11. The parties do not dispute the following circumstances: • on 24 January 2006 the defendant’s Internet portal ‘Delfi’ published an article entitled ‘SLK Destroyed Planned Ice Road’; • the defendant provided visitors to the Internet portal with the opportunity to comment on articles; • of the comments published [avaldatud] on the aforementioned article, 20 have contents that are derogatory towards the plaintiff [L.]; • the defendant removed the derogatory comments after the plaintiff’s letter of 9 March 2006. 12. The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the contents of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful contents. 13. The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act]. According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to the provision of the ISSA referred to, ‘information society services’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service. Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (1) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; (2) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider’s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the contents of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information. Since the Information Society Services Act is based on Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by recital 42 of the preamble to the Directive. According to this recital, the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘content services’ who have control over the contents of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive. The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments [hinnangud] and opinions (comments). In the comment environment, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant’s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the writer of the comments does not mean that the defendant has no control over the comment environment. The defendant enacts the rules for the comment environment and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant’s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not prompt the conclusion that the publishing of comments is not under the defendant’s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comment environment, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case. 14. There is no legal dispute over the fact that the defendant is the publisher of an article entitled ‘SLK Destroyed Planned Ice Road’, published on the Delfi Internet portal on 24 January 2006. The County Court found that the defendant too must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the writers of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the writers of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant. The Chamber has explained the definitions of disclosure and discloser in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [avaldamine] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [avaldamine] of information in the media, the discloser/publisher [avaldaja] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ajakirjanduslik tegevus]. At the same time, because of the nature of Internet media [internetiajakirjandus], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [trükiajakirjanduse väljaanne]. While the publisher [väljaandja] [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the writer of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [väljaandja] of printed media and an Internet portal operator are publishers/disclosers [avaldajad] as entrepreneurs. In cases concerning a value judgment [väärtushinnang] that prejudices and denigrates a person’s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning ... Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [hinnangud] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public). 15. In reply to the allegations in the defendant’s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following. The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone’s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person’s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person’s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person’s honour and good name. In the interests of the protection of a person’s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff’s honour was not justified; it was therefore unlawful as there was no discussion of the topic in the comments but the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Law of Obligations is interpreted in conformity with the Constitution, injuring a person’s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats. The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the writers of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1)(4) of the Obligations Act). 16. According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments ... are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant’s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless. On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful contents. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person’s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant’s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [süü] (section 1050(1) of the Obligations Act).” 32. On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the rules of commenting. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the rules of commenting was monitored as well. According to the information published, the number of comments posted by Delfi’s readers in August 2009 had been 190,000. Delfi’s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The share of defamatory comments had been less than 0.5% of the total number of comments. | 0 |
test | 001-159220 | ENG | ROU | ADMISSIBILITY | 2,015 | LEONTE v. ROMANIA | 4 | Inadmissible | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The applicant, Mr Florin Leonte, is a Romanian national, who was born in 1963 and lives in Podul Iloaiei. He was represented before the Court by Mr T.C. Baltag, a lawyer practising in Iaşi. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 26 June 2007 the Iaşi County Court convicted the applicant of driving under influence of alcohol and without a licence, of leaving the place of an accident and of manslaughter. He was sentenced to fourteen years’ imprisonment. In application of Article 71 of the Criminal Code, his right to vote and to be elected was withdrawn during detention. 5. The applicant appealed against the decision, complaining mainly about the manner in which the evidence had been assessed and the prison sentence established. 6. On 6 March 2008 the Iaşi Court of Appeal upheld the decision, after reexamination of the evidence in the file. 7. The applicant appealed on points of law reiterating the arguments advanced in the appeal proceedings. The applicant complained again about the prison sentence imposed on him. The first hearing took place on 18 September 2008. The applicant’s lawyer filed the reasons for appeal for that hearing. In its final decision adopted on 22 October 2009, the High Court of Cassation and Justice upheld the previous decisions. 8. The relevant provisions of the Criminal Code providing the automatic withdrawal of the right to vote and to be elected during the execution of a prison sentence, read as follows: “Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty: (a) the right to vote and to be elected to bodies of a public authority or to public elective office; ...” “The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64. (2) A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...” 9. In its decision of 5 November 2007 (following an appeal in the interest of the law), the High Court of Cassation and Justice advised the domestic courts to interpret Article 71 § 2 of the Criminal Code in the light of the Convention, and thus assess the necessity of the withdrawal of the right to vote in each case. This decision became mandatory on the date of its publication in the Official Monitor on 18 July 2008. | 0 |
test | 001-178699 | ENG | HRV | CHAMBER | 2,017 | CASE OF GRBA v. CROATIA | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);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) | Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 6. The applicant was born in 1965 and lives in Sarajevo, Bosnia and Herzegovina. At the time of the introduction of his application, the applicant served a prison sentence in Croatia. 7. During June and July 2008 the Istria Police Department (Policijska uprava istarska; hereafter: “the police”) received several complaints concerning the use of counterfeit euro banknotes in Istria. 8. The video surveillance recordings made in one of the shops where the counterfeit currency was used revealed that a certain C.M. had paid using several counterfeit 100 euro notes. 9. According to a police report dated 21 July 2008, further unspecified investigative police work identified the applicant as the person who had supplied a total of 3,000 counterfeit euros to C.M. The report also claimed that the applicant was expected to return from Bosnia and Herzegovina to Croatia for the purpose of uttering a further 20,000 counterfeit euros and, if that proved to be successful, he would bring a further 200,000 counterfeit euros with a view to uttering them in Istria. 10. Acting on the evidence presented in the police report (see paragraph 9 above), on 21 July 2008 the Pula County State Attorney’s Office (Županijsko državno odvjetništvo u Puli) asked an investigating judge from the Pula County Court (Županijski sud u Puli) to authorise the use of special investigative measures in respect of the applicant, namely tapping his telephone, covertly monitoring him using undercover agents, and conducting a simulated purchase operation. 11. The investigating judge granted the request and on the same day issued an order for the use of special investigative measures. The relevant part of the statement of grounds reads: “The request of the [Pula County State Attorney’s Office] is well-founded. As the materials and information available to the police suggest that there is probably cause to believe that Zoran Grba, a national of Bosnia and Herzegovina, engages in the offence of currency counterfeiting under Article 274 §§ 1 and 2 of the Criminal Code, and given that, in the view of the investigating judge, the investigation cannot be efficiently carried out by other means, or would be extremely difficult, the well-founded request of the [Pula County State Attorney’s Office] should be granted and the requested measures are hereby ordered with regard to Zoran Grba as indicated in the operative part of this order. These measures will be implemented by the police between 21 July and 21 November 2008.” 12. On 6 August 2008 the Pula County State Attorney’s Office informed the investigating judge that the applicant also used another telephone number, and requested an authorisation for the tapping thereof. 13. On the same day the investigating judge granted the request, finding that there were no new facts or circumstances suggesting that the use of the special investigative measures in respect of the applicant should be discontinued. 14. Meanwhile, on the same day, the applicant met an undercover police agent who purchased one counterfeit 100 euro note from him. 15. In the ensuing period several further meetings and contacts between the applicant and the undercover agent took place. On 12 August 2008 the undercover agent purchased 149 counterfeit 100 euro notes from the applicant, and on 17 October 2008 the applicant sold him a further sixtyfour counterfeit 100 euro notes. 16. On 17 November 2008 the police informed the Pula County State Attorney’s Office of the actions taken through applying special investigative measures. The police stated that the applicant’s arrest had initially been planned for 17 November 2008, when he was supposed to come to Croatia for the purpose of selling further counterfeit euro banknotes to an undercover agent but he had postponed that meeting. The police therefore requested an extension of the use of special investigative measures in order to identify and arrest all those involved in the uttering of the counterfeit banknotes and to collect evidence concerning the offence at issue. 17. On 18 November 2008 the Pula County State Attorney’s Office made a fresh request for the use of special investigative measures in respect of the applicant. 18. The investigating judge granted the request and on the same day issued an order extending the use of special investigative measures for a further month. The judge found that the grounds set out in his order of 21 July 2008 remained valid (see paragraph 11 above) and that the information provided by the police suggested that it was necessary to extend the use of special investigative measures in respect of the applicant for a further month. 19. On 19 November 2008 the Pula County State Attorney’s Office asked for corrections to be made to the order in relation to an incorrect phone number in its request of 18 November 2008 and also in respect of the omission of another phone number used by the applicant. The investigating judge granted this request on 21 November 2008. 20. On 22 November 2008 the applicant, accompanied by his brother D.S., met the undercover agent in Solin. On that occasion he sold him 600 counterfeit 100 euro notes for 21,000 euros (EUR). Following the illicit transaction, the applicant and D.S. were arrested by the police. 21. After the arrest the applicant and his car were searched. The police found and seized EUR 21,000 in cash. 22. On 23 November 2008 the police lodged a criminal complaint with the Pazin Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Pazinu) against the applicant on charges of currency counterfeiting. No criminal complaint was lodged against D.S. 23. On the same day the applicant was brought before an investigating judge of the Pula County Court for questioning, during which he remained silent. The investigating judge ordered his remand in custody. 24. The investigating judge also heard D.S. as a witness but he invoked his testimonial privilege as the applicant’s brother and gave no evidence. 25. Following a request for the opening of a judicial investigation in respect of the applicant, on 26 November 2008 the investigating judge questioned the applicant, but the applicant again remained silent. On the same day, the investigating judge opened an investigation in respect of the applicant in connection with suspected currency counterfeiting relating to the four occasions on which he had sold the counterfeit banknotes to the undercover agents. 26. In the course of the investigation, the investigating judge obtained an expert report stating that the 600 banknotes of 100 euro which the applicant had sold to the undercover agents were counterfeit. The judge also decided that the undercover police agents would be questioned under the pseudonyms E.K. and A.B. via video link and with distorted images and sound. 27. On 23 January 2009 the investigating judge questioned the undercover agent E.K. The applicant’s lawyer was present during the questioning. 28. In his statement E.K. said that his first contact with the applicant had occurred sometime in late July 2008, when they had spoken on the phone. According to E.K., he had not told the applicant the reason for calling him, but at the time the applicant had been in Sarajevo so they had been unable to meet. E.K. also explained that following this initial contact, he had met the applicant in a restaurant in Duga Resa at the beginning of August 2008. On that occasion they had started talking about business. The applicant had asked him what he was interested in and E.K. had replied that he had heard that the applicant was offering some good “papers”. The applicant had replied that it was true and asked E.K. what he was really interested in and E.K. had repeated that he had heard that the applicant was offering good “papers”. However, E.K. was no longer able to recall the further details of this conversation with the applicant. E.K. explained that during this first meeting the applicant had sold him a 100 euro note for 300 Croatian kunas (HRK) (approximately EUR 40), which E.K. had accepted. According to E.K., the applicant had also said that if E.K. wished, they could arrange a further purchase of a larger quantity of such banknotes. 29. E.K. stated that eight to ten days following his first meeting with the applicant, they had met again in a car park near Zagreb. On that occasion the applicant had offered E.K. the opportunity to buy a further 15,000 counterfeit euros. E.K. had accepted the offer and had paid EUR 6,000 for the counterfeit euros. E.K. testified that a further meeting with the applicant had taken place in Odra after a phone call from the applicant. On that occasion the applicant had asked E.K. whether he knew anybody who would be interested in the purchase of larger quantities of counterfeit currency and E.K. had replied that he had a friend ‒ in actual fact another undercover agent, A.B. ‒ who would be interested. According to E.K., the next meeting with the applicant had taken place some time in midOctober 2008 in a restaurant in Lupoglav. E.K. explained that on that occasion he had been accompanied by the second undercover agent, A.B. On that occasion E.K. had bought 6,500 counterfeit euros (it later turned out that the amount was in fact 6,400 euros) from the applicant for EUR 2,500. Following this exchange they had been in contact by phone but they had not met. 30. The investigating judge also questioned the undercover agent A.B. in the presence of the applicant’s lawyer. 31. During his questioning A.B. described the circumstances in which he had first met the applicant in the restaurant in Lupoglav in October 2008 (see paragraph 29 above). According to A.B., the applicant had asked him whether or not he wanted to buy counterfeit currency. A.B. had then expressed interest in doing so and the applicant had stated that he could supply 50,000 counterfeit euros, which he would be prepared to bring to Split. They had then agreed to stay in touch and exchanged phone numbers. A.B. also stated that the applicant had called him in early November 2008 and asked him whether he wanted to buy the counterfeit euros. Afterwards they had had several telephone conversations until the applicant had finally called A.B. and offered him 60,000 counterfeit euros for the price of EUR 21,000. A.B. had accepted that and they had met in a shopping centre in Solin. The illicit exchange had then taken place and the applicant had afterwards been arrested. 32. After completion of the investigation, the investigating judge forwarded the case file to the Pazin Municipal State Attorney’s Office for further examination and a decision. 33. On 17 February 2009 the Pazin Municipal State Attorney’s Office indicted the applicant in the Pazin Municipal Court (Općinski sud u Pazinu) on charges of currency counterfeiting in connection with the four occasions on which he had sold counterfeit euros to the undercover police agents (see paragraphs 14-15 and 20 above). 34. A three-judge panel of the Pazin Municipal Court confirmed the indictment on 10 March 2009 and sent the case for trial. 35. At a hearing on 27 March 2009 the applicant, represented by a lawyer, pleaded not guilty with regard to the first three instances of the alleged uttering of counterfeit notes (see paragraphs 14-15 above), whereas he considered himself “responsible” for the transaction on 22 November 2008 because he had “given in to the inducement” by the police. 36. At the same hearing the Pazin Municipal Court questioned the undercover police agents E.K. and A.B. The undercover agent E.K. stated that he could no longer say who had initiated a meeting specifically for the purchase of the counterfeit currency and he was unable to answer the question whether the applicant should have been arrested as soon as he had sold the first counterfeit 100 euro note to him. E.K. was also unable to say whether he would have been authorised to arrest the applicant. The undercover agent A.B. reiterated the statement he had given to the investigating judge. 37. Following the questioning of the witnesses, the trial bench examined the secret surveillance recordings and asked the police to inform them whether the euros paid for the counterfeit notes at the first three meetings (see paragraphs 14-15 above) had been traced and confiscated. 38. On 6 April 2009 the police replied that they had neither traced the money which had been paid for the purchase of the counterfeits nor confiscated it from the applicant on the first three occasions. 39. A further hearing was held on 16 April 2009, at which the trial bench commissioned a psychiatric expert report concerning the applicant’s mental condition at the moment of the commission of the offences. 40. In the course of his examination by a psychiatrist the applicant explained that he had had serious financial difficulties and that he had needed money urgently. He also stated that he had never before broken the law and had never committed an offence. In summer 2008 an undercover police agent had started contacting him, asking him whether he could supply counterfeit euros. The applicant believed that one of the people in Croatia who owed him money must have given his phone number to the police. As the agent had been very persistent in his calls (he had called him at least fifty times), the applicant had agreed to his request. The applicant had not believed that he was doing anything bad by simply delivering counterfeit money. He explained that he would have never agreed to do it had he not been pressurised by the undercover agent. 41. In his report dated 21 April 2009 the expert witness found that the applicant had had full mental capacity at the time of commission of the offences. 42. On 13 May 2009 a further hearing was held before the Pazin Municipal Court at which the expert witness responded to questions concerning his report. 43. At the same hearing the applicant was questioned but decided to remain silent and not to give any evidence. Following the applicant’s questioning, the trial bench concluded the trial proceedings and heard the parties’ closing arguments. The applicant contended that he had been incited by the police to commit the offences at issue. He argued that it had been the undercover agents who had contacted him first and that their evidence concerning the circumstances of their various contacts had been both incomplete and contradictory. He pointed out that there no audio recordings of his meetings with the undercover agents and it was unclear why had they not arrested him before 22 November 2008 if he had committed an offence on the first three occasions, as suggested in the indictment. 44. On 13 May 2009 the Pazin Municipal Court found the applicant guilty as charged and sentenced him to five years and six months’ imprisonment. It also confiscated HRK 300 (approximately EUR 40) and EUR 8,500 from the applicant and ordered his expulsion from Croatia. The Pazin Municipal Court held that the four occasions on which the applicant had sold counterfeit currency to the undercover agents should be classified as a repeated offence of uttering counterfeit currency under Article 274 § 1 of the Criminal Code. When sentencing the applicant, the Pazin Municipal Court explained that the applicant’s persistence in uttering counterfeit currency on four occasions, as well the quantity of counterfeit banknotes uttered (81,400 counterfeit euros in total), constituted particularly aggravating factors. With regard to the applicant’s plea of entrapment, the Pazin Municipal Court merely noted that it had no reason to doubt the statements provided by the undercover agents. 45. The applicant challenged the first-instance judgment before the Pula County Court arguing, in particular, that the circumstances of his entrapment had not been properly examined. 46. On 20 October 2009 the Pula County Court quashed the firstinstance judgment and remitted the case for re-examination. It found that the first-instance judgment had been based solely on the undercover agents’ statements about their conversations with the applicant, which was contrary to Article 180 of the Code of Criminal Procedure. 47. In the resumed proceedings the Pazin Municipal Court excluded from the case file as unlawful evidence all the undercover agents’ statements about their conversations with the applicant. 48. At a hearing on 18 January 2010 the Pazin Municipal Court again questioned the undercover agents E.K. and A.B. 49. In his statement E.K. explained that he could not judge whether he had contacted the applicant more frequently than the applicant had contacted him. He was also unable to recall the details of his conversation with the applicant when they had first talked over the phone. E.K. also explained that a simulated purchase operation was sometimes carried out just once and sometimes on several occasions. In the case at issue, he had been instructed by his superiors to conduct several such simulated purchases. Moreover, it was for his superior and not him to determine the ultimate aim of the simulated purchase operation. In any case, the aim of such a police operation was to eradicate currency counterfeiting. E.K. was unable to recall who had initiated the meeting in Lupoglav in mid-October 2008 when he had introduced the applicant to the second undercover agent A.B. Nor could he say who had initiated the other meetings. With regard to his first meeting with the applicant, he could not say whether the applicant had had only one 100 euro counterfeit note in his possession or more than one. E.K. answered that it was “[the applicant’s] own business”. 50. In his statement A.B. explained that his meeting in Solin had taken place at the applicant’s initiative and that it was the applicant who had contacted him more frequently than vice versa. A.B. further stated that it was his superior who had the authority to decide whether the simulated purchase would be organised just once or on several occasions. 51. Following the questioning of the undercover agents, the defence asked that C.M. ‒ who was initially identified as the person to whom the applicant had allegedly first supplied the counterfeit euros (see paragraphs 79 above) ‒ be questioned at the trial. The trial bench of the Pazin Municipal Court dismissed the request by the defence as irrelevant and adjourned the hearing in order to examine the recordings of the applicant’s secret surveillance. 52. On 30 March and 27 April 2010 the Pazin Municipal Court examined the recordings of the applicant’s communications and meetings with the undercover agents. It found that there had been eight unsuccessful attempts on the part of the undercover agents to contact the applicant. 53. At a hearing on 27 April 2010 the Pazin Municipal Court heard the parties’ closing arguments. The applicant argued in particular that the police had abused their powers in not arresting him after the first illicit transfer of counterfeit euros and had instead incited him to commit further offences by arranging purchases of larger quantities of counterfeit euros. He also contended that there had never been a reasonable suspicion of his having committed an offence which could have justified the investigating judge’s decision to authorise the use of undercover investigative measures. 54. On the same day the Pazin Municipal Court found the applicant guilty as charged and sentenced him to five years and six months’ imprisonment. It also confiscated HRK 300 (approximately EUR 40) and EUR 8,500 from the applicant and ordered his expulsion from Croatia. When sentencing the applicant, the Pazin Municipal Court reiterated its previous findings (see paragraph 44 above). 55. With regard to the applicant’s plea of entrapment, the Pazin Municipal Court observed: “In the case at issue, examination of the audio recordings of the phone taps confirmed the circumstances surrounding the communication between the undercover agents and the accused, in particular the intensity of the telephone communications. Taking note of the recorded statements of the undercover agents during their communications [with the applicant], it was established that the purpose of the communications was [organising] a meeting with the accused in order to effectuate a simulated purchase. This court considers that it cannot be said that the undercover agents acted improperly in the sense that by their actions they allowed the accused to develop his criminal activity [or] in any manner incited him to commit an offence. Neither the questioning of the undercover agents nor any other [evidence adduced] suggests that the undercover agents incited the accused to commit an offence in the sense that they offered him some reward or brought him presents or such like. It is true [as was established during the proceedings] that, for instance, between 12 and 16 October 2008 the undercover agent tried to contact the accused eight times on his mobile phone, but this court considers that this was not prohibited nor did it incite the accused to commit criminal acts. Those were attempts to contact the accused in the period which was ‘covered’ by the [investigating judge’s order]. It should be also taken into account that in the period at issue there had already been communication between the accused and the undercover agent.” 56. The applicant challenged the first-instance judgment by lodging an appeal before the Pula County Court. He argued, in particular, that the orders for the use of special investigative measures had not been adequately reasoned, as required under the Code of Criminal Procedure. He also contended that there had been no reason to continue with the use of simulated purchases and the undercover agents’ activities after the first illicit transfer of counterfeit euros in August 2008. All further events had constituted entrapment intended to extend the scope of his criminal activity, which eventually resulted in a more severe sentence. The applicant claimed that such measures could have been justified by the necessity to arrest further individuals involved in the offence, but no activity in that respect had been undertaken in his case. 57. On 24 September 2010 the Pula County Court dismissed the applicant’s appeal and upheld the first-instance judgment. It held that the investigating judge’s orders for the use of special investigative measures had been properly reasoned as required under the Code of Criminal Procedure. With regard to the plea of entrapment, the Pula County Court observed: “... [The investigating judge] ordered that the [special investigative] measures be implemented between 21 July and 21 November 2008, namely over a period of four months. The investigating judge’s order ... of 18 November 2008 shows that the use of [special investigative] measures was extended for a month from 21 November to 21 December 2008. It is apparent from the order that, in response to an application by the State Attorney’s Office, the investigating judge extended the use of [special investigative] measures for appropriate reasons. It [also]probably cause to believe that the accused had uttered counterfeit euros, which suggested the commission of a serious criminal offence (currency counterfeiting). Taking into account the nature of such an offence and the fact that the use of special investigative measures was producing certain results, there were relevant reasons for extending the use of [special investigative] measures under Article 180 of the Code of Criminal Procedure. It cannot therefore be said that the conduct of the undercover agents broadened the extent of the criminal activity of the accused. It should be noted that it cannot be claimed that the use of special investigative measures under Article 180 § 1(4) and (5) of the Code of Criminal Procedure can be considered as an incitement to commit a criminal offence. The undercover agent E.K. contacted the accused only after the use of special investigative measures had been ordered and there is therefore no unlawfulness in his conduct. Furthermore, the fact that E.K. first contacted the accused without telling him the reason for the contact, as was established by the first-instance court from the statement of E.K., and the fact that the first meeting took place almost a month later (on 6 August 2008) ‒ when the undercover agent in Duga Resa bought one 100 euro counterfeit note from the accused for the amount of HRK 300 ‒ cannot be considered as an incitement but was a tactical action aimed at gaining the confidence of the accused and further uttering of counterfeit euros. The fact that the undercover agent succeeded in his task is selfevident, since the accused continued to sell him larger quantities of counterfeit euros for real euros until he was arrested.” 58. On 6 November 2010 the applicant filed a request for extraordinary review of a final judgment before the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the findings of the Pula County Court. He contended that the Pula County Court had failed to provide adequate reasoning for its findings concerning the incitement. Specifically, it had not thoroughly examined the circumstances of the applicant’s first contact with the undercover agent when the first instance of incitement had occurred. Furthermore, the Pula County Court had not taken into account the fact that the majority of the contacts with the applicant had been initiated by the undercover agents, and it had not analysed the substance of their discussions, even though they had been duly recorded, as a result of the applicant’s phone having been tapped. In this connection the applicant pointed out relevant parts of the transcript of the phone taps, in particular the part where the undercover agent stated: “Come on, you must definitely come. Don’t you know, ok, we are serious people ...”; or where the applicant stated “I will not bring [it] and that’s it”, after which the undercover agent started inciting him to a criminal act. The applicant also contended that the investigating judge’s orders for the use of special investigative measures had not been properly reasoned, as required under the Code of Criminal Procedure. 59. On 5 April 2011 the Supreme Court dismissed the applicant’s request for extraordinary review of a final judgment, endorsing the reasoning of the lower courts concerning the applicant’s plea of incitement. It found that there was nothing in the conduct of the undercover agents suggesting incitement. It also considered that there had been sufficient basis for the use of secret surveillance and that the orders of the investigating judge had been issued in accordance with the relevant provisions of the Code of Criminal Procedure. 60. On 24 June 2011 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating the arguments he had presented before the lower courts. He pointed out in particular that the use of special investigative measures had been authorised contrary to the relevant domestic law as the investigating judge’s orders had not been properly reasoned. In his view, this had infringed his right to respect for his private life and the confidentiality of his correspondence guaranteed under Articles 35 and 36 of the Constitution. The applicant also contended that he had been incited to commit an offence by the undercover agents and that the lower courts had not properly examined his plea of entrapment. 61. On 8 December 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the decision of the Supreme Court concerned neither a determination of his rights and obligations nor a criminal charge against him. 62. The decision of the Constitutional Court was served on the applicant’s representative on 5 January 2012. | 1 |
test | 001-145271 | ENG | ROU | ADMISSIBILITY | 2,014 | DRAGOMIR v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Adrian Dragomir, is a Romanian national who was born in 1989 and lives in Bucharest. He was represented before the Court by Ms E. R. Iancu, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 25 November 2010 criminal proceedings were instituted against the applicant and eight other co-accused in respect of fraud, forgery, use of forged documents, and money-laundering offences. 5. On 26 November 2010 the prosecutor’s office attached to the Bucharest County Court decided to place the applicant in pre-trial detention. An arrest warrant was issued against the applicant and the prosecutor’s order was confirmed by the court. 6. The applicant’s pre-trial detention was extended on successive occasions by court order. 7. On 8 April 2011 the applicant lodged an application with the court requesting revocation of the order for his detention. In an interlocutory judgment of 12 April 2011, the Bucharest County Court dismissed the applicant’s request. However, it replaced the applicant’s detention with an undertaking not to leave the city, given that the impact of his deeds on public order had diminished with the passage of time. It ordered the applicant’s release from detention. 8. The prosecutor did not appeal against the interlocutory judgment. Despite the fact that the judgment became final on 13 April 2011, the applicant was not released from Bucharest Prison until two days later, namely on 15 April 2011. 9. The relevant provisions of domestic law and practice regarding the award of compensation in the event of unlawful detention – namely Articles 504 and 505 of the Code of Criminal Procedure (CCP) and decision no. 45/1998 of the Constitutional Court – are to be found in Ogică v. Romania, no. 24708/03, § 56, 27 May 2010, and Degeratu v. Romania, no. 35104/02, § 59, 6 July 2010. 10. The Government submitted examples of case-law with the aim of showing that at present, in similar cases concerning unlawful detention, the system of legal remedies in Romania – including the direct applicability of the Convention and the Romanian Constitution – made it possible to make good any damage suffered. 11. In a judgment of 2 March 2007 concerning an unlawful detention for two days, the Mehedinți County Court allowed the action for compensation and awarded the claimant 1,000 Romanian lei (RON) (approximately 350 euros (EUR)). The Craiova Court of Appeal upheld that judgment and increased the compensation to RON 2,000 (approximately EUR 700). The appellate court held that, although Article 504 of the CCP was not applicable to the claimant’s situation, Article 23 and Article 52 § 3 of the Romanian Constitution and Article 5 of the Convention were applicable. 12. In another case, in a final decision of 13 June 2012 the Bucharest Court of Appeal allowed a tort action and awarded the claimant EUR 500 as compensation for an unlawful detention lasting twenty-two days. It held that – although Article 504 of the CCP was not applicable to the claimant’s situation – the claimant was entitled to compensation for unlawful detention. 13. In a judgment of 18 February 2010 the Vâlcea County Court awarded the claimant RON 30,000 (approximately EUR 7,400) by way of compensation for thirty-six days of unlawful detention. On 4 May 2012 the High Court of Cassation and Justice upheld that judgment. It noted that the claimant was entitled to compensation on the basis of Article 5 § 5 of the Convention, even though the extension of his detention by an additional thirty-six days after his prison sentence had been served had not been found unlawful by a decision of a prosecutor or a court, as required by Article 504 § 3 of the CCP. 14. By a decision of 17 March 2011 the Oradea Court of Appeal allowed an action for compensation for unlawful detention and awarded the claimant RON 500. It found that, although Article 504 of the CCP was not applicable to the claimant’s situation, he was entitled to compensation on the basis of Article 5 of the Convention. That decision became final on 6 March 2012, when the High Court of Cassation and Justice dismissed an appeal on points of law against it. | 0 |
test | 001-158099 | ENG | CYP | ADMISSIBILITY | 2,015 | KLAEDES v. CYPRUS | 4 | Inadmissible | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev | 1. The applicant, Ms Andriana Klaedes, is a British national, who was born in 1978 and lives in Nicosia. She was represented before the Court by Mr L. Loucaides, a lawyer practising in Nicosia. 3. The applicant was born intersex and in 1992 underwent a feminising surgical procedure in the United Kingdom. The applicant is a lawyer and appeared before the British courts and in British society as a female. In 2006 she changed her legal identification documents in England so as to record her female name, Andriana. Previously she used the name of Andy-Tony Panteli Klaede. 4. The applicant at some stage moved to Cyprus where she is currently practising as a lawyer. For professional purposes the applicant had initially kept her original male name, Andros Klaedes, on all her cards and documents and on the Register of Advocates. 5. In the beginning the applicant appeared before the courts wearing trousers and signed all documents as “A. Klaedes”. In 2009 she started appearing in court in female attire. 6. On 11 September 2012 the applicant had a case before the Larnaca District Court (criminal jurisdiction) and appeared before Judge M. She had appeared before this judge previously in respect of other cases wearing trousers and a jacket. On the above date she was wearing a long black skirt with a black blazer and a white shirt. The applicant claims that she was publicly humiliated and degraded by Judge M. in open court. 7. According to the applicant, Judge M. started making derogative comments. He told her that she was not allowed to appear before him. When she asked him the reason for this he replied that this was because she was wearing a skirt, she was a man and he did not accept masquerading in his court. When the applicant responded that she had already appeared before another judge without a problem, he kept saying “you are a man, you are a man”. He also told her that on the Register of Advocates she was registered as Andros Klaedes. When the applicant stated that he was violating her human rights, he replied “you are a man and you are not allowed to appear in such attire”. The court room at the time was full of lawyers and other people (court staff and other audience) who started laughing at her. The applicant told the judge that he had publicly disclosed her personal data. The judge asked her to leave the court room which she did after stating “as you wish your honour, with your leave”. 8. On 19 September 2012 the President of the Cyprus Bar Association issued an affirmation that Mrs Andriana Klaedes had been entered in the Register of Advocates on 6 March 1997 and had renewed her licence from 1997 until 2012. 9. On or around 24 September 2012, the applicant appeared before the same judge for a second time wearing a skirt. She submitted that the judge had reprimanded her and had stated that she was a man and she was not allowed to appear before him for the same reasons he had told her before. Although she informed the judge that she had obtained a certificate by the Cyprus Bar Association with her female name, the judge laughed and replied that her name had not been altered in the register and that she had to leave the court room and provide him with a certificate from the Supreme Court. The court room was full of lawyers and other people who were laughing at her. The applicant left the court room humiliated. 10. The applicant submitted that these incidents had received wide publicity through the mass media for several days adding further humiliation to the applicant, her family and friends. She was subjected to mockery, ridicule, contempt and was harassed by the journalists and other people. She also had suicidal tendencies. 11. The President of the District Court of Larnaca advised her not to appear before the said judge even though she had several cases before him. 12. On 24 October 2012, following the lodging of the present application with the Court, the applicant appeared before Judge M. who informed her that he had stepped down in respect of the cases in which she was a lawyer. Her cases were transferred to another judge of the same court. However, the applicant claimed that when she appeared before the new judge, he also treated her in a similar manner, called her by her male name and addressed her as “sir” in an unnecessary repetitive manner which amounted to mockery. 13. The applicant stated that the Larnaca District Court did not keep minutes of the relevant incidents and of the conversations set out above. 14. Section 4 (4) of the Civil Wrongs law provides that no action shall be brought against any judge of any court in the Republic, other than the Supreme Court, nor against any person lawfully performing the duties of a judge of such court, nor against any official receiver, nor any member of any court martial nor against any arbitrator nor other judicial officer in respect of any civil wrong committed by him/her in his/her judicial capacity if this act caused the civil wrong within his/her jurisdiction. 15. The 1960 Constitution, which came into force when the Republic of Cyprus was established, provided for the existence of both a High Court and a Supreme Constitutional Court. These Courts were composed of Greek, Turkish and neutral judges, that is, judges from a foreign country other than Greece and Turkey. The two neutral judges presided over the Courts. After the intercommunal troubles of 1964, the Administration of Justice (Miscellaneous Provisions) Law no. 33/64 was enacted on the basis of the law of necessity. By virtue of this law, the two highest courts were merged into one, the Supreme Court of Cyprus, to which the various jurisdictions and powers of the two pre-existing courts were transferred. 16. The Supreme Court was originally composed of five judges, but the number of judges was gradually increased by legislation to its current number of thirteen judges. The judges of the Supreme Court are appointed by the President of the Republic (Article 153.2 of the Constitution). The district judges, senior district judges, presidents of district courts and judges of the courts exercising specialised jurisdiction are appointed by the Supreme Council of Judicature, a body consisting of the judges of the Supreme Court (Articles 153.8(1) and (2) and 157 of the Constitution). 17. Pursuant to Article 157.2 of the Constitution the Supreme Council of Judicature has exclusive authority over the appointment, promotion, transfer, termination of appointment, dismissal and disciplinary matters of judicial officers of the inferior courts. It has the power to terminate the appointment of any judge, on account of mental or physical incapacity (Article 153.7(3)) or to dismiss a judge on the ground of misconduct (Article 153.7 (4)). 18. On 14 July 2000 the Supreme Court issued Rules on the basis of Article 163.2 (f) of the Constitution and section 17 of the Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law 33/64, as amended), setting out the practice and procedure to be followed by the Supreme Council of Judicature in the exercise of its competence with regard to disciplinary matters relating to judicial officers. The relevant rules stipulate in detail the disciplinary procedure to be followed in the event a complaint is made that a judge may have become incapable, have displayed inappropriate behaviour (misconduct) or committed a disciplinary offence (Rule 3). If it is considered that an investigation is justified, an investigating judge is appointed by the Supreme Court to carry this out (Rules 4 -7). After the completion of the investigation, the Supreme Court decides, on the basis of the report submitted by the investigating judge and the statements which were taken during the investigation, whether the referral of the judge under investigation to the Supreme Council of Judicature is justified (Rules 8 and 9). If a decision is taken to proceed against the judge for misconduct or the commission of a disciplinary offence, the Supreme Court files a charge or charges against the judge in question who is called to appear before the Supreme Council of Judicature. Disciplinary proceedings are then carried out before that body (Rules 10-26). If the Supreme Council of Judicature decides that the charge or charges against the judge in question have not been proved, it shall acquit and exonerate him (Rule 23). Otherwise, a judge who is found to be guilty of misconduct shall be heard before the Supreme Council of Judicature proceeds further (Rule 26). 19. The penalty for misconduct under the Rules is dismissal (Article 153.7(4) of the Constitution and Rule 27) and for committing a disciplinary offence, a reprimand or a reprimand published in the Official Gazette of the Republic (Rule 28). 20. Section 17 of the Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law 33/64, as amended) provides that the Supreme Court can make Rules to be published in the official Gazette of the Republic for the better carrying out of this Law into effect. Article 163.2 (f) of the Constitution provides that the Supreme Court may make Rules of Court for prescribing the practice and procedure to be followed by the Supreme Council of Judicature in the exercise of its competence with regard to disciplinary matters relating to judicial officers. | 0 |
test | 001-178355 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KABARDOKOV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing) | Dmitry Dedov;Luis López Guerra | 4. Between 1986 and 1987 the applicants took part in the clean-up operation at the Chernobyl nuclear disaster site. They were subsequently registered disabled and became entitled to various social benefits and compensation paid on a regular basis. 5. Considering these benefits insufficient, the applicants together with other 482 people, sued the Russian Ministry of Finance for additional compensation corresponding to non-pecuniary damage suffered as a result of their participation in the operation. 6. On different dates in January and April 2011 the Nalchik Town Court of Kabardino-Balkaria (“the Town Court”) allowed their claims in part and awarded each claimant, including the applicants, compensation ranging between 1,100,000 Russian roubles (RUB) and RUB 1,800,000 for nonpecuniary damage. 7. No appeals were lodged against these judgments within the statutory ten-day time-limit. The judgments became final. Some judgments in respect of several applicants remained unenforced (see “Enforcement status” in the Appendix). 8. On different dates in 2012 and 2013 the domestic courts granted the defendant authority’s request to extend the time-limit for appeal essentially on the ground that the defendant authority had not been served with the impugned judgments. Subsequently the regional Supreme Court quashed the judgments delivered in the applicants’ favour on the grounds that they had been based on retrospective application of the law. The applicants were ordered to repay the sums received under the judgments. 9. The applicants lodged a supervisory review application. There is no indication that they requested the enforcement proceedings to be suspended pending the examination of their supervisory review application. 10. Between June and August 2013 the Presidium of the regional Supreme Court partially quashed the appeal judgments as regards the applicants’ obligation to reimburse the sums paid. | 1 |
test | 001-156275 | ENG | LVA | CHAMBER | 2,015 | CASE OF NASSR ALLAH v. LATVIA | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion) (Syria);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | George Nicolaou;Guido Raimondi;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev | 5. The applicant was born in 1982. His current whereabouts are unknown. 6. On 29 December 2012 the applicant fled Syria and on an unspecified date entered the Russian Federation. It appears that he applied for asylum, but on 4 May 2013 he left the country before his application was examined. 7. On 4-5 May 2013 the applicant crossed the Latvian border on foot. On 5 May 2013 the State Border Guard Service (Valsts roberžsardze) stopped him near the border. 8. On 7 May 2013 the State Border Guard Service completed an asylum application form and the applicant signed it in the presence of an Arabic-speaking interpreter. 9. On 7 May 2013 an initial interview (sākotnējā aptauja) with the applicant was conducted with the assistance of an Arab-speaking interpreter. The applicant explained that he could speak, read and write in English and Arabic. 10. On 16 May 2013 a personal interview (pārrunas) with the applicant took place. The applicant was assisted by an Arab-speaking interpreter. 11. On 22 May 2013 the closed facility in which the applicant was being held (see paragraph 23 below) received a parcel addressed to him. The sender was unknown. The parcel contained the applicant’s identity card and military service certificate in Arabic. Their translation was requested and on 24 May 2013 it was received. 12. On 28 May 2013 those documents, together with their translations into Latvian, were sent to the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvalde). The latter was also informed that it would receive certified translations as soon as possible. On 21 June 2013 the State Border Guard Service received the certified translations and, on the same date, sent them to the Office of Citizenship and Migration Affairs. 13. On 31 May 2013 authenticity of the applicant’s identity card was confirmed by two forensic experts. On 21 June 2013 the State Border Guard Service received their report and, on the same date, sent it to the Office of Citizenship and Migration Affairs. 14. On 28 June 2013 the applicant appointed a lawyer to assist him in the administrative proceedings. The same lawyer continued to represent him before the Court (see paragraph 2 above). 15. On 4 July 2013 the Asylum Affairs Division (Patvēruma lietu nodaļa) of the Office of Citizenship and Migration Affairs informed the applicant that they had received his application for asylum and would examine it within three months. 16. On 3 October 2013 the Asylum Affairs Division decided to refuse the applicant’s asylum application. However, they granted him subsidiary protection status (alternatīvais statuss) and issued a temporary residence permit for one year. It was noted that that decision would take effect from the time the applicant had been informed of it. A reference was made to section 70(1) of the Administrative Procedure Law and section 8(3) of the Notification Law (see paragraph 38 below). 17. On 4 October 2013, which was a Friday, a letter was sent to the State Border Guard Service in Daugavpils informing them of the decision and stating that the applicant was to be informed of it immediately. They also asked that one copy of the decision be handed over to the applicant and that the second copy be sent back to the Asylum Affairs Division with the applicant’s signature confirming that he had been informed of it. The letter, together with two copies of the decision, was received in Daugavpils on Monday 7 October 2013 (see paragraphs 29-30 below) and the applicant was informed of it. Accordingly, the decision took effect on 7 October 2013. 18. The applicant lodged an appeal against the decision with the administrative courts, as he wished to be granted asylum; he considered that the subsidiary protection status was not sufficient. 19. On 6 November 2013 administrative proceedings were instituted. 20. On 19 December 2013 the Administrative District Court issued summonses and scheduled a hearing for 27 January 2014. That hearing was postponed as the applicant did not appear. Another hearing was scheduled for 25 February 2014, but the applicant failed to appear again. 21. On 26 February 2014 the Administrative District Court left the applicant’s appeal without examination for repeated failure to appear without good reason. 22. On 5 May 2013 the applicant was detained under section 51(2)(1) of the Immigration Law (see paragraph 35 below), but he refused to sign the detention record. At that time, he had no personal identification or valid travel document. He identified himself as “Adnan Haiiak”, born on 20 October 1983. He was informed (in English) of his rights to appeal against the detention order, receive legal aid, acquaint himself with the detention records and communicate in a language understood by him. The following day several documents were found in the place where he had been arrested: a document testifying that an application for short-term asylum had been made by a Syrian national, Mr Nassr Allah, born on 18 September 1982, and was being examined in Russia; a torn train ticket; and other documents in Arabic. The applicant explained that he had hidden those documents in order to avoid being sent back to Russia. 23. On 7 May 2013 the applicant was detained under section 9(1)(1) (undetermined identity) and 9(1)(2) (misuse of the asylum procedure) of the Asylum Law, but he refused to sign the detention record. He was informed (in Arabic) of his rights to appeal against the detention order, receive legal aid and communicate in a language understood by him. He was also informed about the reasons for his detention. He was placed in a closed facility in Daugavpils – an accommodation centre for foreign detainees and asylum seekers (Aizturēto ārzemnieku un patvēruma meklētāju izmitināšanas centrs – “the Daugavpils accommodation centre”). 24. On 10 May 2013, following a hearing in the applicant’s presence, a judge of the Daugavpils (City) Court (Dauvgavpils tiesa) ordered his detention for two months. The judge examined the material brought before him and, with the assistance of an Arab-speaking interpreter, heard evidence from the applicant. The applicant explained that he had applied for asylum in Russia, but had left as he realised that he would not receive it. He had crossed the border illegally and had identified himself by giving another name in order not to be deported back to Russia. The applicant was not assisted by a lawyer. The judge concluded that there were grounds to detain him as his identity had not been determined and there were reasons to consider that he had misused the asylum procedure. He had arrived in Latvia from a country, where his life had not been endangered and where he had applied for asylum; these facts evidenced that he misused the asylum procedure. On the same date, the applicant lodged an appeal (one page) against that decision in English, stating in simple terms that he had received the court’s decision and wished to appeal against it. He submitted that he had been in danger in Russia and had been ill; he expressed the wish to be granted refugee status in Latvia and undertook to provide all his documents as soon as possible. On 13 May 2013 his appeal was sent for translation; on 7 June 2013 a translation was received. On the same date, the appeal, its translation and the case file were forwarded to the Latgale Regional Court (Latgales apgabaltiesa) and the applicant was informed that a single judge would examine his appeal following a written procedure; the applicant could submit further observations within forty-eight hours. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of it on 13 June 2013. On 25 June 2013 the applicant was informed that examination of his case had been rescheduled to 5 July 2013; it would be decided by a single judge following a written procedure. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of its translation on 25 June 2013. 25. On 5 July 2013 a judge of the Latgale Regional Court examined and dismissed the applicant’s appeal. He relied on largely the same factual and legal grounds for detaining the applicant as the first-instance court judge. The judge concluded that there were grounds to consider that the applicant attempted to misuse the asylum procedure. It was evidenced by the facts surrounding his arrival and application for asylum in Latvia. He had crossed the border illegally. He had not arrived directly from the country where his life or liberty was endangered. He had spent several months in Russia, where he had applied for asylum, but had left illegally; without awaiting for a final decision. It was impossible to predict his further actions in case of release. The decision was drafted in Latvian, but its contents were explained to the applicant, for which he signed on the same date. 26. On 8 July 2013, following a hearing in the applicant’s presence, the judge of the Daugavpils (City) Court authorised the extension of his detention for a further two months; the applicant was assisted by an interpreter. The applicant’s lawyer was not present, but the judge examined her written request to release the applicant on account of the fact that he had provided his identity documents and had not misused the asylum procedure. She argued that the applicant could be placed in an open and specialised institution – an accommodation centre for asylum seekers in Mucenieki. The judge disagreed and concluded that there were grounds to detain the applicant under section 9(1)(2) of the Asylum Law. The fact that his application for asylum was accepted for examination did not indicate that he would comply with the requirements arising from the asylum procedure as he testified that he would again apply for an asylum in another European country in case he received a negative decision in Latvia, which was contrary to the applicable procedure. In such circumstances, it was impossible to predict his further actions if placed in an open accommodation centre; there was a possibility that he might leave Latvia and thereby obstruct the asylum procedure as he had already done in a safe third country (see paragraph 6 above). On the same date, the applicant lodged an appeal (one page) against that decision in Latvian, stating that there was no evidence that he had misused the asylum procedure, might leave the country or obstruct the asylum procedure. He disputed the relevance of the fact that he had applied for asylum in Russia as it was not a safe third country. His appeal was forwarded to the Latgale Regional Court together with the case file. On 15 July 2013 the applicant was informed that his case would be examined on 30 July 2013 by a single judge following a written procedure; it was explained that the applicant could submit further observations within forty-eight hours. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of its translation on 18 July 2013. 27. On 30 July 2013 another judge of the Latgale Regional Court examined and dismissed the applicant’s appeal, upholding the decision to detain him under section 9(1)(2) of the Asylum Law. She referred to the findings of the city court to the effect that there were grounds to believe that the applicant might misuse the asylum procedure. There was evidence that he had left Russia after several months and without awaiting a final decision in response to his application for asylum. Upon arrival in Latvia, he had withheld his real identity. It was due to diligent work of border guards that his identity could be established. Moreover, the applicant admitted that he had left Russia because he believed that his application for asylum would be refused; he also admitted that he would attempt to obtain asylum in another European country if it was refused in Latvia. Therefore, the judge upheld the conclusion of the lower court that it was impossible to predict the applicant’s further actions upon release. The decision was drafted in Latvian, but its contents were explained to the applicant. On 6 August 2013 he signed the decision, confirming that it had been explained to him in English; he respected the decision and agreed with it. 28. On 6 September 2013 the judge of the Daugavpils (City) Court authorised the applicant’s detention for a further two months, again on the grounds of section 9(1)(2) of the Asylum Law. During the hearing, the applicant explained that he would continue to pursue the asylum proceedings; he was aware of the relevant procedures and duties, he would not leave Latvia until the end of the asylum procedure. The judge concluded that the applicant misused the asylum procedure on the same grounds as indicated in the previous decisions and that he should remain in detention. With reference to section 9 (3) of the Asylum Law, the judge noted that the time-limit for his detention had not yet expired. The applicant did not lodge an appeal against that decision, as the Asylum Affairs Division was due to make a decision in less than one month and his previous experience had shown that detention appeals took about one month to be examined. 29. On 4 October 2013 the State Border Guard Service informed the applicant that he had been granted subsidiary protection status but that they could not release him until they received the original version of that decision; the relevant authority had sent it by post (see paragraph 17 above). 30. The State Boarder Guard Service ordered the applicant’s release at around 4 p.m. on 7 October 2013. In the release order, a reference was made to the fact that the applicant had been granted subsidiary protection status and that grounds for his detention had ceased to exist. 31. On 13 August 2013 the applicant complained to the Ombudsman about his prolonged detention. 32. On 21 August 2013 the Ombudsman replied [in English] as follows: “In your complaint you request Ombudsman’s assistance in obtaining order for your release as well as assistance with contacting your family in Syria. In the process of examining your complaint I have contacted the centre for detained foreigners and asylum seekers ‘Daugavpils’ (hereinafter – the Centre). According to information provided by the Centre, your application for asylum is currently under examination in the Office of Citizenship and Migration Affairs. The expected date of decision is 4 October 2013. According to the decision of Daugavpils (City) Court from 8 July 2013, as well as Latgale Regional Court you are currently detained on the basis of [section 9(1)(2)] of the Asylum Law. The next periodical review of your detention is due before 6 September 2013. [Section 9(1)(2)] of the Asylum Law states that ‘the State Border Guard [Service] has the right to detain an asylum seeker for a period up to seven days and nights if there are reasons to believe that the asylum seeker is attempting to use the asylum procedure in bad faith.’ The decision of Daugavpils (City) Court is based on the fact that you have crossed the Latvian border under the name of Adnan Haiik having previously requested temporary asylum in the Russian Federation with your established identity as Aladdin Nassr Allah. In the court hearing you have also indicated that in case of a negative decision you will proceed to seek asylum in another European country, which would be contrary to the procedure and regulations of requesting asylum in the European Union. Thus the court has established reasons to believe that you are attempting to use asylum procedure contrary to its objective and purpose. Having reviewed the decision of Daugavpils (City) Court and Latgale Regional Court, it is established that you have been detained according to the procedures prescribed by law. Your rights to periodical review of detention have also been observed according to Latvian law. Furthermore, the decisions ordering your detention contain sufficient motivation to establish legal and factual grounds for such detention. Therefore, there has been no violation of your right to liberty and security under the [Convention] and Article 94 of the Constitution of Latvia. With regard to the possibility to contact your family from the detention facility, I would like to inform you that upon your request, you have the right to contact your family on your own expense. The Latvian law does not grant detained asylum seekers a possibility to contact their families free of charge.” | 1 |
test | 001-171085 | ENG | ROU | COMMITTEE | 2,017 | CASE OF LAZĂR v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque | 4. The applicant was born in 1971. He is currently serving a sentence in a prison in Panama. 5. Following an undercover operation set up by the police with the help of two undercover agents, the applicant and a Dutch national, V.D.P., were arrested on suspicion of drug trafficking. 6. In November 2002, the prosecutor’s office attached to the Timişoara Court of Appeal committed the applicant and his co-accused for trial for drug trafficking and the case was registered with the Arad County Court. 7. The applicant’s counsel asked the court to hear evidence from the undercover agents. His request was refused on the ground that the anonymity of the undercover agents was protected. 8. Following another request lodged by the applicant’s counsel, on 5 March 2003 the court ordered the prosecutor to submit the authorisations it had issued for the undercover operation. 9. The applicant’s counsel claimed that his client had committed the drug offence only after being incited to do so by the undercover police agents. 10. On 9 April 2003 the Arad County Court convicted the applicant of drug trafficking and sentenced him to three years’ imprisonment. The County Court imposed a lenient sentence in the light of the applicant’s good behavior after his arrest and the fact that he had pleaded guilty as charged. The court based his conviction on the report drafted by the undercover agents after the applicant had been caught red-handed, as well as a search report and the statements given by the applicant and his co-accused. 11. The applicant appealed, complaining, inter alia, that the undercover agent had overstepped the legitimate limits of investigation by inciting him to sell drugs. 12. By a decision delivered on 25 June 2003 the Timişoara Court of Appeal increased his prison sentence to ten years’ imprisonment. It held that the good behaviour of the applicant after he had committed the offence could not justify a lenient sentence. 13. The applicant lodged an appeal on points of law. In his grounds for appeal he did not complain about the unlawfulness of his conviction but only about the length of his sentence. He requested the appellate court to impose a milder sentence and accordingly, to overturn the decision of the Timisoara Court of Appeal and to uphold the judgment of the Arad County Court by which he had been convicted to only three years’ imprisonment. 14. By a final decision delivered on 27 November 2003, the Supreme Court of Justice dismissed the applicant’s appeal on points of law as unfounded. 15. The applicant was detained in Jilava Prison between 25 July 2003 and 6 January 2004. 16. The applicant alleged that he had been kept in poor hygienic conditions in overcrowded cells. The water provided had been of very poor quality, being of a yellow colour, smelling and containing worms. Sometimes, there had been no water – either for drinking or for the toilet. The food had also been of very poor quality. 17. The Government contended that the records held by the prison authorities concerning the cells’ size and their occupancy rate were no longer available as the archives for that period had been destroyed, pursuant to the domestic law. However, as regards the general detention conditions in Jilava Prison the Government submitted that every cell had been equipped with two squat toilets connected to the water network and separated from the rest of the room by a wall. It had been possible to let in fresh air by opening the window to each cell. The prisoners had been allowed to take one hot shower per week in the communal bathrooms located in each section of the prison (between nineteen and twenty-three showers had been available). The applicant had been allowed to walk outside his cell for thirty minutes each day. | 1 |
test | 001-158946 | ENG | HUN | CHAMBER | 2,015 | CASE OF KÁROLY NAGY v. HUNGARY | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens | 6. The applicant was born in 1951 and lives in Gödöllő. 7. In November 1991 the applicant took up the position of pastor in the Hungarian Calvinist Church (Magyar Református Egyház). As of December 2003, he served in the parish of Gödöllő. His rights and obligations as well as his remuneration were set out in an appointment letter (lelkészi díjlevél) issued by the parish presbyters. 8. On 22 June 2005 the applicant was informed that disciplinary proceedings had been instituted against him for stating in a local newspaper that State subsidies had been paid unlawfully to a Calvinist boarding school. Meanwhile, on 21 June 2005 the first-instance ecclesiastical court had suspended the applicant’s service with immediate effect until a decision on the merits, for a maximum of sixty days. The applicant received a letter stating that he was entitled, under section 82(1) of Statute no. I of 2000 of the Hungarian Calvinist Church, to 50% of his service allowance during the period of his suspension. 9. On 27 September 2005 the first-instance ecclesiastical court removed the applicant from service, as a disciplinary measure. On an unspecified date, the second-instance ecclesiastical court upheld that decision and terminated the applicant’s service with effect from 1 May 2006. 10. On 26 June 2006 the applicant took his case to the Pest County Labour Court, seeking the payment of 50% of his service allowance and other benefits to which, in his view, he should have been entitled during the period of his suspension. Arguing that his suspension had reached its statutory maximum duration on 21 October 2005, he also sought the payment of the whole service allowance from that date until the termination of his service, that is, 30 April 2006. He argued in substance that his ecclesiastical service was analogous to employment, referring to tax rules to that effect (see paragraph 20 below). 11. On 22 December 2006 the Labour Court discontinued (megszüntette) the proceedings, holding that it had no jurisdiction to adjudicate on the applicant’s claim. It considered that under section 2(3) of Statute no. I of 2000 of the Hungarian Calvinist Church, pastors’ service with the Church was regulated by ecclesiastical rules, whereas laymen’s employment with the Church was governed by the State’s Labour Code. Accordingly, since the dispute before it concerned the applicant’s service as a pastor, the provisions of the Labour Code were not applicable in the case, and there existed no judicial avenue before the State courts to decide on his claims. The Pest County Regional Court upheld the decision on appeal on 27 April 2007. The applicant did not apply for a review to the Supreme Court. 12. On 10 September 2007 the applicant lodged a civil-law claim against the Hungarian Calvinist Church. His claim was based in the first place on sections 277(1) and 478(1) of the [old] Civil Code and on the agency contract he had allegedly concluded with the Church. He maintained that for the period from 21 October 2005 (that is, the date when the suspension allegedly became unlawful) until 30 April 2006 (that is, the date of termination of his appointment) he was entitled to a fee for his services, which corresponded to the service allowance set out in his appointment letter. He thus sought enforcement of the contract. Alternatively, he based his claim on sections 318(1) and 339(1) of the [old] Civil Code and on the breach by the Church of its contractual obligations under the agency contract. He argued that by not paying him the allowance due for the period between 21 October 2005 and 30 April 2006, the Church had failed to fulfil its contractual obligations. He thus claimed damages, amounting to the loss of service allowances to which he would have been entitled under the contract for the above-mentioned period. 13. The Pest Central District Court dismissed the applicant’s claim on the grounds that no contractual relationship had been established between the parties under civil law. In the court’s view, the claim had no basis in civil law. It therefore did not embark on an assessment of the applicant’s secondary claims, such as liability for breach of contract or recognition of debt. 14. The Budapest Regional Court upheld the first-instance decision on appeal, reasoning that the Hungarian Calvinist Church had no standing in the proceedings, since the applicant had been appointed by the parish of Gödöllő, a separate legal entity. 15. The applicant lodged a petition for review with the Supreme Court. By its decision of 28 May 2009, the Supreme Court quashed the final decision and discontinued (megszüntette) the proceedings. It stated as follows: “... In order to determine the rules applicable to the agreement (megállapodás) in question and to the implementation of the rights and obligations arising from it, it is necessary to have regard to the very purpose of the agreement underlying the plaintiff’s actual claim as well as the elements thereof defining the parties’ rights and obligations. The first-instance court rightly stated in its assessment that the agreement serving as the basis of the applicant’s claim was not an agency contract regulated by civil law or concluded by and between parties enjoying personal autonomy in the marketing of [goods and services]. The plaintiff was appointed as a pastor in an ecclesiastical procedure, and the obligations of the respondent were defined in an appointment letter by the assembly of presbyters. The parties established between themselves a pastoral service relationship, regulated by ecclesiastical law. Under section 15(1) of Act no. IV of 1990 on Freedom of Conscience and Religion and on Churches, the Church is separated from the State. Under sub-section (2), no State coercion can be used to enforce the internal laws and regulations of Churches. Relying on the above provisions, the applicant can make a claim under the ecclesiastical law before the relevant bodies of the Calvinist Church. The fact that the agreement concluded under ecclesiastical law resembles a contractual agreement under the Civil Code does not prompt State jurisdiction or the enforceability of the claim in a judicial procedure within the meaning of section 7 of the Civil Code. (In the given case the basic elements of an agency contract and the conclusion of such a contract could not be established either.) The labour court reached the same conclusion in the earlier proceedings when assessing the claim under the State labour law and dismissing its enforcement in judicial proceedings. The first-instance court was right to point out that as the impugned agreement lacked a civil-law legal basis, the court could not examine the applicant’s secondary claim (compensation for breach of contract). On the basis of the reasoning above, there were no grounds to adjudicate on the claim on the merits. The Supreme Court accordingly quashes the final judgment, including the firstinstance judgment, and discontinues the proceedings under sections 130(1) (a) and 157 (a) of the Code of Civil Procedure...” This decision was served on the applicant at some point in time after 9 July 2009. | 0 |
test | 001-142924 | ENG | HRV | ADMISSIBILITY | 2,014 | GURDULIĆ AND OTHERS v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicants, Mr Danijel Gurdulić, Ms Katica Gurdulić, Mr Ivan Gurdulić, Ms Antica Gurdulić Šverko and Ms Adela Marangunić are Croatian nationals who were born in 1974 (the first applicant), 1938 (the second applicant), 1972 (the third applicant) and 1939 (the fourth and the fifth applicant). The fifth applicant lives in Trieste (Italy) whereas the other applicants live in Zagreb. They were all represented before the Court by Ms I. Bojić, an advocate practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The present case concerns the ownership of two plots of land (“the land”) with a total area of 3,156 square metres, which were joined into a single (cadastral) plot (no. 687) on 2 March 1977. The plot(s), together with seven other plots of land, form the Firule Sports Centre in Split. The Sports Centre currently consists of seven tennis courts with red clay surface, two tennis courts with hard surface, a central stadium, one small multi-purpose court, a small gym and an administration building. Of those facilities the central stadium, the multi-purpose court and the access road are located on the plot(s) in question. 4. In 1905 the applicants’ ancestor J.G. bought and thereby became the owner of the land at issue. On 13 April 1931 he leased it to a sports association, A.T.K. (later on T.D.S. and T.K.S., hereinafter “the tennis club”), which intended to build tennis courts on them. 5. It would appear that the land has remained in the possession of the tennis club ever since. Even though some tennis courts were built before the Second World War, it seems that the tennis club carried out significant (re)construction works in the period between 1949 and 1952, which resulted in the sports complex consisting of four tennis courts and the central stadium. 6. By the entry into force of the Nationalisation of Rental Buildings and Construction Land Act (hereinafter “the Nationalisation Act of 1958”) on 26 December 1958 the land was nationalised as undeveloped construction land (neizgrađeno građevinsko zemljište) and thereby passed into social ownership (društveno vlasništvo). Under sections 38-39 of that Act undeveloped construction land remained in the possession of the former owner until the former owner, on the basis of a decision by the relevant municipal authority, surrendered possession of the land to the local authorities or to another person, for construction of a building or other facility or for other works. While in possession of the nationalised land the former owner had the right to use the nationalised land free of charge or to allow another person to use it with or without a charge, according to the rules governing lease of agricultural land (see paragraph 42 below). 7. In 1961 the two plots of land were recorded in the land register as being in social ownership; the former owners (the applicants’ relatives) had the right to use them until the relevant authority issued a decision transferring possession of the plots to the local authorities or to another person. 8. On 2 March 1977 the two plots were joined into a single cadastral plot. 9. In preparation for the Mediterranean Games held in Split between 15 and 29 September 1979 further (re)construction works were carried out to the Firule Sports Centre. It would appear that two more tennis courts, a stadium and a gym were built. The construction was completed in 1979. 10. On 16 March 1981 the Split Municipality and the tennis club concluded a “self-management agreement” (“the Self-Management Agreement”) under which the Split Municipality transferred to the tennis club the right to manage, use and maintain the tennis courts the Municipality had built for the Mediterranean Games. The Split Municipality also agreed that the tennis club could record the right to use those tennis courts in the land register. The agreement did not specify the cadastral plots on which those tennis courts were located (see paragraph 51 below). 11. On 12 October 1995 the 1995 Amendment to the Sports Act entered into force. It provided that all sports facilities and other socially owned immovable property which sports organisations and associations had the right to use was to pass into the ownership of the local authorities in whose territory such property was located. However, in order to become owners the local authorities had to issue a decision taking over such property within ninety days of the entry into force of the Amendments (see paragraph 43 below). 12. By a decision of 5 December 1995, published in the local official gazette and based on the 1995 Amendment to the Sports Act (see paragraph 43 below), the Split Township took over and thus became the owner of all sports facilities and other socially owned immovable property on its territory referred to in those Amendments. The decision listed “Firule tennis courts” among the sports facilities taken over by the township. 13. On 1 January 1997 the Property Act entered into force. Pursuant to its section 361 all holders of the right to use undeveloped construction land in social ownership became by the operation of law the owners of the land they had the right to use (see paragraph 44 below). 14. By a decision of 31 December 2009 the Split Township specified the cadastral plots to which its decision of 5 December 1995 (see paragraph 12 above) referred. The plot in question (no. 687) was listed therein. 15. Meanwhile, on 15 April 1969 the applicants’ relatives brought a civil action in the Split Municipal Court (Općinski sud u Splitu), seeking compensation from the tennis club for unauthorised use of the land at issue. 16. By a judgment of 6 March 1989 the Split Municipal Court ordered the tennis club to pay the applicants’ relatives 2,089,020 Yugoslav dinars (YUD), with interest, for using the land without any legal basis in the period between 1 January 1967 and 1 January 1986. 17. By a judgment of 1 September 1989 the Split County Court (Okružni sud u Splitu) dismissed an appeal by the tennis club and upheld the first-instance judgment. It endorsed the finding of the first-instance court that the tennis club had had no legal basis to use the land in question. 18. By a judgment of 3 January 1997 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed an appeal by the tennis club by endorsing the reasoning of the lower courts. In particular, that court held as follows: “The land at issue was nationalised on the basis of sections 38 and 39 of [the Nationalisation Act of 1958]. However, the right to use [that land] remained until the present day, recorded [in the land register] in the name of the plaintiffs as [its] former owners. In the early 1950s the defendant commenced construction works on that land and has been using it for its own purposes ever since. Even though the defendant applied on several occasions to [the relevant authority within] the former Split Municipality to order dispossession of the plaintiffs in its favour, those requests were never met. .. The plaintiffs throughout this period, namely from the commencement of the construction of the tennis courts until the action was brought in this case, demanded compensation for the land at issue, either by awarding them other immovable property or by paying them financial compensation. However, they did not obtain it, either from the defendant or in the regular proceedings for determining the level of compensation ... Given that the land in dispute was not taken out of the possession of the plaintiffs, either on the basis of a decision by the Split Municipality or on any other basis, nor was it given to the defendant on the basis of a decision by the relevant authority ... the defendant does not have any [legal] basis to use the land at issue. Even if the defendant had received building permit ... for construction of a tennis court during the time the land was privately owned by the plaintiffs or afterwards, namely after the nationalisation of the land, the possession of building permit itself is not a [legal] basis for losing or acquiring the right of ownership or, after nationalisation, the right to use the land. By unlawfully retaining the plaintiffs’ land in its possession, the plaintiffs being the holders of the right to use that land, and by not paying them any compensation throughout the entire period the land was in its possession, the defendant is obliged to pay the plaintiffs compensation at their request corresponding at least to the level of rent they would have received if they had been leasing that land to third parties.” 19. In the meantime, on 7 May 1990 the applicants brought a civil action in the Split Municipal Court, seeking compensation from the tennis club for the use of the land in the period after 1 January 1990. 20. By a judgment of 19 July 2007 the Split Municipal Court ruled for the applicants, and ordered the tennis club to pay the applicants a total of 6,071,752 Croatian kunas (HRK) in compensation for the use of the land in the period between 1 January 1990 and 30 April 2006, together with the accrued statutory default interest. In particular, it held as follows: “... section 88 of the Sports Act as amended by the 1995 Amendments provided that only those sports facilities which sports organisations and associations or other legal entities had the right to use passed into the ownership of townships and municipalities in whose territory they were located. The defendant does not have the right to use the sports facilities built on the plot of land in dispute, because the right to use the land was, on the basis of sections 38 and 39 of [the Nationalisation Act of 1958], recorded [in the land register] in the name of the plaintiffs’ ancestors, which situation remained unaltered until the entry into force of the Property Act whereby the right to use was converted into the right of ownership of those recorded as users, that is, of the plaintiffs ... The defendant did not acquire even an unrecorded right of use, because [the defendant] did not provide the court with relevant evidence [to that effect]. The defendant has been continuously in dispute with the plaintiffs and their ancestors over the immovable property in question since 1966 ... the Split Township could not transfer to the defendant the right to administer and use land which it did not have. The immovable property at issue was never taken out of the possession of the plaintiffs in accordance with the law [and] in the relevant proceedings; there is no decision by the relevant authority to that effect; this last is not disputed between the parties. The plaintiffs and their ancestors were recorded as users and now (co-) owners of the land in question.” 21. Following an appeal by the defendant, by a judgment of 20 November 2008 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It held that the right to use the land in question had been transferred to the tennis club by the Self-Management Agreement of 16 March 1981 (see paragraphs 10 above and 51 below), and that by a decision of 5 December 1995 (see paragraph 12 above), based on the 1995 Amendments to the Sports Act (see paragraph 43 below), the local authorities had become the owners of that land. This meant that since 16 March 1981 the applicants had not had the right to use the land or to claim any compensation from the tennis club. The relevant part of that judgment reads as follows: “In the early 1950s the defendant had commenced the construction of tennis courts on the land in dispute, which was then nationalised on the basis of [the Nationalisation Act of 1958]. The Split Municipality, which had built the tennis courts, took possession of them and long after the nationalisation [had taken place] transferred to the defendant (the tennis club), the right to administer, use and maintain the tennis courts by the self-management agreement of [16 March] 1981, in accordance with the law. By the entry into force of the [1995] Amendments to the Sports Act the social ownership of sports facilities was transformed by the operation of law, before the entry into force of the Property Act. On the basis of section 88 of the Sports Act [as amended by the 1995 Amendments], the sports facilities in social ownership, in the present case the tennis courts built on the land in dispute, passed into the ownership of the Split Township, which transferred that immovable property to the defendant, who has thus been using them, in this appellate court’s view, on the basis of a valid legal title. Contrary to the view of the first-instance court, this appellate court considers in the light of the foregoing that in the period between 1990 and 2006 the defendant was not unlawfully using the cadastral plot no. 687 on which the tennis courts were built. Therefore, there is no legal basis for the plaintiffs’ compensation claim for the unauthorised use of the disputed land during the above sixteen-year period.” 22. On 27 March 2012 the Supreme Court dismissed an appeal on points of law (revizija) by the applicants. It endorsed the reasons given by the second-instance court. It added, in reply to the applicants’ main argument in their appeal: “The plaintiffs’ argument that section 88 of the Sports Act [as amended by the 1995 Amendments] is not applicable in the present case because [the case] does not concern sports facilities in social ownership which sports organisations had the right to use, is unfounded. In particular, the disputed immovable property had passed into social ownership on the basis of [the Nationalisation Act of 1958]; the Split Municipality ... had entered into possession of that property and commenced the construction of tennis courts and by the Self-Management Agreement of [16 March] 1981 transferred to the defendant the right to manage, use and maintain the tennis courts. Therefore, the present case concerns immovable property in social ownership the defendant had the right to use and which, on the basis of section 88 of the Sports Act [as amended by 1995 Amendments], passed into the ownership of the Split Township.” 23. On 18 June 2012 the applicants lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme Court’s judgment. Relying on Articles 14 paragraph 2, 26 and 48 of the Croatian Constitution (see paragraph 41 below), they alleged violations of their constitutional rights to equality before the law, equality before the courts, fair hearing and the right of ownership. 24. It would appear that those proceedings are still pending before the Constitutional Court. 25. Meanwhile, on 25 August 1994 the applicants brought a civil action in the Split Municipal Court against the tennis club, seeking repossession of the land in question. They argued that the tennis club was in possession of the tennis courts situated on that land without any legal basis. 26. By a judgment of 13 September 1999 the Split Municipal Court ordered the tennis club to surrender possession of the land to the applicants. The relevant part of that judgment reads as follows: “The defendant has been using the immovable property at issue by building a tennis court on it, which thus serves the needs of the defendant as a tennis club. As can be seen from the [first proceedings for compensation] the disputed immovable property has never been taken out of the plaintiffs’ possession even though the defendant on several occasions unsuccessfully sought possession from [the relevant authority within] the former Split Municipality. It is therefore indisputable that until the present day the immovable property in question has not been taken out of the plaintiffs’ possession, which means that the defendant has been holding it unlawfully without a valid legal title. The plaintiffs therefore have the right to seek that the defendant vacate the property and surrender it to them. Section 38 of the [the Nationalisation Act of 1958] provided that nationalised construction land was to remain in the possession of its former owners until they surrendered possession of the land to [the local authorities] or to another person, for construction of a building or other facility or for other works, or to allow another person to use it for compensation, on the basis of a decision by the [relevant municipal authority]. Section 39 of that Act provided that the former owner of the nationalised undeveloped construction land had the right to use that land ... as long as it remained in his or her possession, free of charge Given that the relevant authority has not so far issued a decision on dispossession allowing the disputed immovable property to be taken from the possession of the plaintiffs, [they] still have the right to use it permanently, and the defendant has been unlawfully disturbing them in the exercise of that right, and has not been paying compensation for the entire period during which it has been using the immovable property at issue. In the light of the foregoing, and given that the land in dispute was not the subject of a decision by the Split Municipality or of any other relevant authority, and has not been taken out of the possession of the plaintiffs and ... given to the defendant for use, this court finds that the defendant does not have any [legal] basis to use the land at issue and thus has to surrender it to the plaintiffs ... to whom that right lawfully belongs. [The] plaintiffs’ claim is therefore well-founded.” 27. Following an appeal by the defendant, by a judgment of 17 October 2005 the Split County Court reversed the first–instance judgment and dismissed the applicants’ action. In so doing it held as follows: “It is undisputed that the plaintiffs succeeded in [the first set of civil proceedings for compensation]. What is disputed, however, is whether the plaintiffs can successfully seek repossession and return of the nationalised land relying on the absence of a decision by the relevant authority whereby the defendant would be allowed to take possession of the immovable property in question. In the view of this court [this] dispute is to be resolved by applying the provisions of the Sports Act. That Act regulated transformation [of ownership] ... of sports facilities ... By the entry into force of the 1995 Amendments to the Sports Act sports facilities ex lege passed from social ownership ... into the ownership of those townships and municipalities on whose territory they were located. Section 88a of the Sports Act provided that those entitled [town councils or municipal councils] had to pass an act taking over sports facilities and other immovable property within ninety days of the day of the entry into force of the 1995 Amendments to the Sports Act ... In the Official Gazette of the Split Municipality no. 5 of 27 March 1981 the Self-Management Agreement was published, transferring the right to administer, and regulating the [legal] relationships concerning the use and maintenance, of newly built tennis courts in Split, whereby the Split Municipality as the developer ... transferred to the [tennis club] the right to use and maintain the tennis courts ... On 5 December 1995 the Split Township (on the basis of section 88a of the Sports Act) passed the Decision on takeover of sports facilities and other immovable property in social ownership into the ownership of the Split Township, whereby ... inter alia, the Firule tennis courts passed into the ownership of the Split Township ... In the present case the sequence of events shows that the tennis courts passed into the ownership of the Split Township, and thus the plaintiffs are not entitled to sue the defendant by their rei vindicatio action acting as the owners. For these reasons ... the contested judgment had to be reversed and the plaintiffs’ action dismissed in its entirety.” 28. On 17 January 2006 the applicants, alleging violations of their constitutional right to equality before the law and the right of ownership, lodged a constitutional complaint with the Constitutional Court against the County Court’s judgment. They relied on Articles 14 paragraph 2 and 48 of the Croatian Constitution (see paragraph 41 below). 29. By a decision of 9 October 2008 the Constitutional Court dismissed the applicants’ constitutional complaint. It held: “The legal views expressed in the contested judgment are based on a constitutionally acceptable interpretation and application of the relevant substantive law. The Constitutional Court finds that the Split County Court gave reasons for its views expressed in the contested judgment, which indisputably are not the result of an arbitrary interpretation and application of the relevant substantive law. The immovable property in question, being socially owned, had been passed on the basis of section 88 of the Sports Act [as amended by 1995 Amendments] into the ownership of the Split Township, which transferred them to the defendant, who has thus been using them on the basis of a valid legal title. The Constitutional Court therefore finds that the second-instance court correctly applied the substantive law when holding that the complainants were not entitled to sue the defendant acting as the owners. As regards the complainants’ argument that the relevant provisions of the Property Act (in particular section 361) should have been applied in the present case, the Constitutional Court notes that this provision is not relevant in the present instance. The Constitutional Court finds that in the instant case the [statutory] requirement for returning the immovable property in question, which in kind constitutes a sports facility (the Firule tennis courts), to the complainants was not satisfied because [that property] had been transferred into social ownership when [the Nationalisation Act of 1958] was applied. [That is so because] the transformation of social ownership of sports facilities was regulated by the Sports Act, which entered into force before the Property Act. Since the second-instance court by reversing the first-instance judgment correctly applied the relevant substantive law and dismissed the complainant’s action, the Constitutional Court finds that the complainants’ constitutional right guaranteed by Article 14 paragraph 2 of the Constitution was not breached ... The Constitutional Court protects the right of ownership at the constitutional level in a manner that prevents restriction or taking of that right by the State authorities, unless a restriction or taking is provided for by law ... interferences with ownership by other legal subjects (natural or legal persons) are property disputes of a private-law nature. The Constitutional Court examines also such decisions of judicial and other authorities if it finds that the contested decision, having regard to the protection of human rights and fundamental freedoms guaranteed by the Constitution, is based on an erroneous or unacceptable legal view. Given the subject matter of the civil proceedings that preceded these proceedings before [it], the Constitutional Court finds that the complainants’ right [of ownership] guaranteed by Article 48 of the Constitution were not breached.” 30. The Constitutional Court’s decision was served on the applicants’ representative on 22 October 2008. 31. On 27 September 1996 the Split Township, relying on section 88 of the 1995 Amendment to the Sports Act (see paragraph 43 below), lodged an application with the Land Registry Division of the Split Municipal Court seeking to be recorded in the land register as the owner of the plot of land claimed by the applicants. 32. On 17 April 1998 and 2 March 1999 the applicants, relying on section 361 of the Property Act (see paragraph 44 below), lodged an application with the same judicial authority, seeking to be recorded in the land register as the owners of the same plot of land. 33. On 15 June 2005 the Land Registry Division of the Split Municipal Court allowed the application by the applicants and recorded them in the land register as the owners of the plot of land in question. 34. By a decision of 5 December 2011 the Land Registry Division of the Split Municipal Court dismissed the Split Township’s application of 27 September 1996 for recordation as owner. The Split Township appealed and the appellate proceedings are currently pending before the Split County Court. 35. On 3 January 2007 the applicants brought a civil action against the tennis club and the Split Township seeking compensation for the unlawful use of the land in question from June 2006. 36. On 15 May 2009 the Split Township brought a counterclaim against the applicants, seeking to be declared the owner of the land in dispute. Shortly afterwards the Municipal Court decided to split the proceedings into two, one for compensation and the other for declaration of ownership. 37. By a judgment of 29 October 2010 the Split Municipal Court dismissed the applicants’ action for compensation. 38. By a judgment of 5 June 2012 the Split County Court dismissed an appeal by the applicants and upheld the first-instance judgment. 39. On 24 September 2012 the applicants lodged an appeal on points of law with the Supreme Court against the second-instance judgment. The proceedings are currently pending before that court. 40. The proceedings between the applicants and the Split Township for declaration of ownership are currently still pending before the Split Municipal Court as the first-instance court. 41. The relevant Articles of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)), 76/10 and 85/10 read as follows: “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other beliefs, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” “All citizens of the Republic of Croatia and foreigners shall be equal before the courts and other State or public authorities.” “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” “1. The right of ownership shall be guaranteed. 2. Ownership implies duties. Owners and users of property shall contribute to the general welfare.” 42. The relevant provisions of the Nationalisation of Rental Buildings and Construction Land Act (Zakon o nacionalizaciji najamnih zgrada i građevinskog zemljišta, Official Gazette of the Federal People’s Republic of Yugoslavia no. 52/58 – “the Nationalisation Act of 1958”), which entered into force on 26 December 1958, provided as follows: “(1) Buildings, parts of buildings and construction land nationalised by this Act shall pass into social ownership on the day of its entry into force. (2) A decision of the relevant authority rendered in the proceedings prescribed by this Act and [relevant] subordinate legislation ... shall determine which objects are nationalised by this Act.” “All developed or undeveloped construction land located in ... towns ... shall be considered construction land and shall be nationalised [pursuant to this Act].” “Nationalised undeveloped construction land shall remain in the possession of its former owners until they surrender possession of the land to [the local authorities] or to another person for construction of a building or other facility or for other works, on the basis of a decision by the [relevant municipal authority], Possession of the land shall not be surrendered to [the local authorities] or to another user before the user needs it to perform construction or other works with a view to bringing the land into its designated use.” “The former owner of nationalised undeveloped construction land shall have the right to use that land ... as long as it remains in his or her possession, free of charge, and shall also have the right to allow another person to use it with or without charge, according to the legislation governing the lease of agricultural land.” 43. The relevant provisions of the Sports Act (Zakon o športu, Official Gazette of the Republic of Croatia nos. 60/92 69/92 (corrigendum), 25/93, 11/94 and 77/95), which was in force between 9 October 1992 and 30 October 1997, as amended by the 1995 Amendment (Zakon o izmjenama i dopunama Zakona o športu, Official Gazette of the Republic of Croatia no. 77/95), which entered into force on 12 October 1995, read as follows: “Sports facilities and other immovable property in social ownership which sports organisations and associations or other legal entities established to manage sports facilities (companies, institutions, work organisations) have the right to use shall pass into the ownership of townships and municipalities in whose territory they are located.” “An act of taking over the sports facilities and other immovable property referred to in paragraph 1 of section 88 of this Act shall be passed by the town or municipal council within ninety days of the entry into force of this Act.” 44. The relevant provisions of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09 and 143/12), which entered into force on 1 January 1997, read as follows: “(1) The right to use undeveloped construction land in social ownership which has not been extinguished before the enactment of this Act shall by its entry into force be converted into the right of ownership of the holder of that right or of his or her legal successor... (2) ... (3) The entries in the land register of the right [to use undeveloped construction land] referred to in paragraph 1 ... of this section made before the entry into force of this Act shall be considered as entries of the right of ownership.” 45. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/77, 36/77 (corrigendum), 36/80, 69/82, 58/84, 74/1987, 57/89, 20/90, 27/1990 and 35/91 and Official Gazette of the Republic of Croatia nos. 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 123/08, 57/11 and 148/11), which has been in force since 1 July 1977, are as follows: “When a court’s decision depends on the prior resolution of the question whether a certain right or legal relationship exists, and this question has not yet been decided by a court or other competent authority (the preliminary question), the court may settle that question itself, unless special legislation provides otherwise. The court’s decision on a preliminary question shall have legal effect only in the civil proceedings in which that question was settled.” “(1) The plaintiff may by his or her action ask the court merely to establish the existence or non-existence of a right or legal relationship, or authenticity or inauthenticity of a document. ... (3) If the decision in a case depends on the existence or non-existence of a particular legal relationship which became disputed before or during civil proceedings, the plaintiff may [amend his or her original action and] raise another claim asking the court to declare that this legal relationship does or does not exist, provided that the court before which the civil proceedings are pending is competent to deal with such a claim.” “The court shall order a stay of proceedings: 1) if it has decided not to settle the preliminary issue itself (section 12) ..., 2) ...,” “[Civil] proceedings concluded by a final court decision may be reopened following a petition by a party ... 9) if the competent authority by a final decision subsequently resolves the preliminary issue (section 12 paragraph 1 and 2) on which the court decision is based ...” “A petition for reopening [of civil proceedings] shall be filed within a thirty-day time-limit ... 5) in cases referred to in section 421 paragraph 1 sub-paragraph ... 9 of this Act – from the time the party had available to it the final decision which is the ground for reopening ... ... A petition for reopening [of civil proceedings] cannot be filed after the expiry of the five-year time-limit from the day the decision [contested by the petition] became final.” 46. In decision no. Rev 54/1993 of 7 October 1993 the Supreme Court held that the courts in the new civil proceedings for (further) compensation for injuries sustained in a road traffic accident were not bound by the findings on the defendant’s tort liability made in the earlier civil proceedings for compensation between the same parties concerning the same accident. That was so because in both proceedings the issue of the defendant’s tort liability was a preliminary question for ruling on the main issue, namely whether the plaintiff was entitled to compensation from the defendant. The relevant part of that decision reads as follows: “The question of the defendant’s liability was in those [earlier] proceedings the preliminary question on which the court decided in those proceedings (section 12 of the Civil Procedure Act). The court’s assessment of the defendant’s liability is contained in the reasons for the judgment delivered in those proceedings. That assessment binds the court and has legal effect only in those proceedings (section 12 paragraph 2 of the Civil Procedure Act). It does not have the force of res judicata. That ruling on the defendant’s possible liability was not entered into the operative provisions but in the reasons for that judgment. In any other civil proceedings that question of the defendant’s liability for the road traffic accident which took place on 1 December 1990 can be resolved differently. That further means that this assessment and view of the court made in the [earlier] proceedings on the exclusive liability of the defendant binds the court only in those proceedings and is of no relevance in the present proceedings, in which the plaintiff asks for further compensation.” 47. In decision no. Rev 1975/1999 of 3 May 2001 the Supreme Court held that the courts in the later civil proceedings for declaring a loan contract null and void were not bound by the findings made in the earlier civil proceedings, in which the courts had ordered payment on the basis of the same contract after having first preliminarily found that the contract was valid. 48. In decisions nos. U-III-487/2001 of 31 October 2001 and U-III-632/2001 of 5 December 2001 the Constitutional Court also held, like the Supreme Court in the case no. Rev 1975/1999 (see the preceding paragraph), that the courts in the subsequent civil proceedings were entitled to declare a loan agreement null and void because they were not bound by the earlier finding on the preliminary question that the agreement was valid made in the context of previous civil proceedings where the courts had ordered payment in performance of that agreement. The relevant part of those decisions reads as follows: “The fact that civil proceedings were conducted between the same parties in which the plaintiff’s claim for specific performance was allowed, on the basis of a particular legal relationship, does not mean that it was also established with the force of res judicata that this legal relationship exists and that it is legally valid. Therefore, in the present case the final judgment ordering the defendant to take a specific action does not at the same time presuppose the validity of the legal ground giving rise to that obligation. [That is so] because the validity of that legal ground was not the object of examination in the previous civil proceedings ...” 49. Croatian legal scholars expressed the following opinion on the legal effects of the civil courts’ rulings on preliminary questions (see Triva, Siniša; Dika, Mihajlo: Građansko parnično procesno pravo [Civil Procedure Law], Narodne novine, Zagreb, 2004, p. 100): “When the civil court itself adopts a view on the preliminary question, its view has legal effect only in the civil proceedings in which that question was settled. The decision [on the preliminary question] does not appear in the operative provisions but [only] in the reasoning, as one of the reasons for the court’s decision on the main issue. No other authority – including the one before which that issue arises also as a preliminary question – is bound by the views of the civil court on preliminary question. The court’s view on the preliminary question expressed in the reasoning of a judgment does not acquire the force of res judicata.” 50. The “incidental declaratory action” (incidentalna tužba za utvrđenje) provided in section 187(3) of the Civil Procedure Act (see paragraph 45 above) is a procedural instrument enabling parties to civil proceedings to turn a preliminary question which was disputed before, or which became disputed during those proceedings, into a main issue, with the effect that the decision on that issue would be entered into the operative provisions of the judgment and thus acquire the force of res judicata and be binding in any other proceedings between the same parties in which that issue arose or may arise. The same legal scholars (see the preceding paragraph) explained the function and importance of this action in the following terms (see Triva, Siniša; Dika, Mihajlo: Građansko parnično procesno pravo, Narodne novine, Zagreb, 2004, pp. 401-402): “If the decision in a case depends on the existence or non-existence of a particular legal relationship which became disputed before or during the civil proceedings, the plaintiff may [amend his or her original action and] raise another claim asking the court to declare that this legal relationship does or does not exist, provided that the court before which the civil proceedings are pending is competent to deal with such a claim. The disputed [legal] relationship must be of preliminary relevance for a decision on the main claim ... The fact that this [preliminary question] is also disputed justifies the conclusion that there is a legal interest in seeking that [this question] also be resolved with the force of res judicata. [Section 187(3) of the Civil Procedure Act] ... enables plaintiffs to ask already in their action that the court, besides deciding on their claim for specific performance, (for example, on a claim for payment), by the same judgment declares that the legal relationship from which that claim arises exists, namely that it inserts in the operative provisions a “declaratory preamble” ... The court must in any event examine and take a preliminary view on it. Deciding on the principal legal relationship is of special importance in situations where the plaintiff in particular proceedings exercises only some of its powers ... [Therefore] a declaratory judgment on the existence of the principal legal relationship may serve as a ground for substantially identical adjudication in subsequent civil proceedings in which the plaintiff would be exercising his or her other powers from the same [legal] relationship. [The same applies] to civil proceedings on the rights in rem and other absolute rights in which a res judicata declaration of the [existence of the] principal [legal] relationship may be important even outside the particular civil proceedings for surrendering the property or for any other performance based on the existence of that absolute right.” 51. The relevant clauses of the Self-Management Agreement of 16 March 1981 on the transfer of the right to manage, and on the regulation of relationships as regards the use and maintenance of the newly built tennis courts in Split (Samoupravni sporazum o prijenosu prava upravljanja i uređenju odnosa u pogledu korištenja i održavanja novoizgrađenih tenis igrališta u Splitu, Official Gazette of the Split Municipality no. 5 of 27 March 1981) read as follows: “By this Agreement the parties regulate mutual rights, obligations and responsibilities as regards the management, use and maintenance of the tennis courts built by the Split Municipality as the developer for the purposes of holding the Mediterranean Games in Split in 1979.” “The Split Municipality as the developer of the tennis courts transfers to [the tennis club] the right to manage, use and maintain the tennis courts, with all secondary facilities.” “The Split Municipality agrees that [the tennis club] be recorded in the land register as the user of the tennis courts.” | 0 |
test | 001-176970 | ENG | DEU | CHAMBER | 2,017 | CASE OF STOLLENWERK v. GERMANY | 3 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev | 5. The applicant was born in 1967 and lives in Düren. 6. On 27 August 2010 the Krefeld District Court issued a warrant for his arrest as there was a strong suspicion that he had been trafficking drugs. Earlier that day he had been stopped with 15.8 grams of heroin, which he had allegedly intended to sell. On two previous occasions he had been stopped at the German border with 11 and 12.5 grams of heroin on him. The arrest warrant was based on the risk of him absconding as he could expect a considerable sentence for the offences in question, had no social ties, being unemployed and a drug addict, and had an unstable character. That same day he was detained on remand. 7. Between 30 August 2010 and 11 November 2010 the lawfulness of the applicant’s detention on remand was examined eight times by the District Court or Regional Court. 8. In a judgment of 6 December 2010 the District Court convicted the applicant of three counts of large-scale drug trafficking – two counts of smuggling drugs into Germany and trafficking (dealt with as a single offence instead of two separate offences) and a third count of trafficking only and sentenced him to two years and six months’ imprisonment. On the same day, in a separate decision, the District Court ordered the continuation of the applicant’s detention. 9. On 8 December 2010 the applicant lodged an appeal against that decision. In substance he mainly referred to his previous submissions. On 13 December 2010 he lodged an appeal against the judgment. 10. The District Court did not allow the appeal of 8 December 2010 relating to the applicant’s detention and referred it to the Regional Court, which dismissed it on 15 December 2010, finding that there continued to be a risk of the applicant absconding. 11. On 5 January 2011 the applicant lodged a further appeal against that decision. In substance, again, he referred to his previous submissions. He explicitly asked that the observations of the Chief Public Prosecutor’s Office be sent to him so as to be able to comment on them. 12. On 28 January 2011 the Düsseldorf Chief Public Prosecutor’s Office (Generalstaatsanwaltschaft – “the prosecution authorities”) submitted written observations to the Court of Appeal, requesting the dismissal of the applicant’s appeal of 5 January 2011. 13. The applicant’s counsel received the observations from the prosecution authorities on 3 February 2011 and submitted a reply to the Court of Appeal on 10 February 2011. 14. Following a telephone enquiry to the Court of Appeal, the applicant’s counsel learned on 10 February 2011 that on 3 February 2011 it had already decided the applicant’s appeal of 5 January 2011 and dismissed it. The applicant had therefore not been able to reply to the observations of the prosecution authorities of 28 January 2011 prior to the court taking its decision. 15. That same day the applicant’s counsel requested a subsequent hearing (Nachholung des rechtlichen Gehörs) under Article 33a of the Code of Criminal Procedure. 16. On 14 February 2011 the Court of Appeal’s decision of 3 February 2011 was served on the applicant. 17. On an unspecified date the prosecution authorities submitted written observations in relation to the applicant’s request for a subsequent hearing. 18. On 25 February 2011 the Court of Appeal dismissed the request for a subsequent hearing as inadmissible, finding that the applicant’s right to be heard had not been violated, that the prosecution authorities’ observations of 28 January 2011 had not contained any facts unknown to him and there had therefore been no need to serve them on him. In so far as his submission of 10 February 2011 was to be classified as an objection (Gegenvorstellung), the court rejected it because its decision of 3 February 2011 had not been based on incorrect factual or procedural considerations. Prior to the decision of 25 February 2011, the observations of the prosecution authorities relating to the request for a subsequent hearing had not been served on the applicant, who had thus had no opportunity to reply to them. The Court of Appeal nevertheless quoted and endorsed those observations in its decision. 19. On 7 April 2011 the applicant lodged a complaint with the Federal Constitutional Court. He alleged, in particular, that his right to be heard, as guaranteed by Article 103 § 1 of the Basic Law (Grundgesetz), had been violated, because the Court of Appeal had taken its decisions of 3 and 25 February 2011 without giving him the opportunity to reply to the observations of the prosecution authorities. 20. On 28 July 2011 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint without providing reasons (2 BvR 805/11). Its decision was served on him on 10 August 2011. | 1 |
test | 001-160824 | ENG | ARM | CHAMBER | 2,016 | CASE OF DOMAZYAN v. ARMENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano | 5. The applicant was born in 1954 and lives in St Petersburg. 6. She had a garage and a small storage building (‘the construction’) in Yerevan measuring 21 sq. m. in total, that she had apparently built without authorisation. 7. On 22 July 2005 the Mayor of Yerevan adopted a decision which, inter alia, recognised the applicant’s ownership of the construction and allocated the underlying plot of land to her with the right of lease. 8. On 26 August 2005 a lease agreement, valid until 22 July 2010, was concluded between the Mayor of Yerevan and the applicant. 9. On 5 September 2005, based on the Mayor’s decision of 22 July 2005, the applicant received an ownership certificate in respect of the construction. 10. It appears that on 19 June 2006 the Mayor of Yerevan adopted another decision, which annulled the decision of 22 July 2005 in its part concerning the recognition of the applicant’s ownership in respect of the construction. 11. On 20 July 2006 the Mayor of Yerevan lodged a claim against the applicant with the Kentron and Nork-Marash District Court of Yerevan seeking to invalidate her ownership certificate in respect of the construction and the lease, on the basis of the decision of 19 June 2006. 12. On 20 October 2006 the applicant issued a power of attorney whereby she authorised advocate G. to represent her in court. This power of attorney was then signed and sealed by G. 13. The first hearing before the District Court took place on 24 October 2006. The record of this hearing states, inter alia, the following: “... [the applicant] has not appeared; advocate G. has appeared on her behalf stating that he represents the defendant and asked to be given time to study the case file and produced a power of attorney signed by the applicant but not certified by a notary. ... The court decides to adjourn the examination of the case until 12 a.m. on 1 November 2006 in order for [the applicant] to submit a written reply and a proper power of attorney in compliance with the procedure established by the law. ...” 14. On 1 November 2006 G. lodged a counter-claim on behalf of the applicant seeking to invalidate the Mayor’s decision of 19 June 2006 as taken in violation of the domestic law. 15. On the same day the Kentron and Nork-Marash District Court of Yerevan decided not to admit the counter-claim and to return it. The relevant parts of the District Court’s decision reads as follows: “Having examined ... the presented power of attorney, the court finds that the counter-claim ... must be returned, taking into account that the power of attorney has been issued in violation of Article 41 § 1, 2 and 4 of the [the Code of Civil Procedure]. Pursuant to that Article, a representative’s powers must be stipulated in a power of attorney issued and drawn up in accordance with the law, the power of attorney issued by a citizen shall be certified by a competent official, while the powers of an advocate shall be certified in accordance with the law. In the present case, the power of attorney as submitted by advocate [G.] has been issued in violation of the legal requirements. In accordance with ... Article 92 § 1 (2) of the Code of Civil Procedure ... the court decides to return the counter-claim lodged by [G.]. The decision to return the counter-claim can be appealed in cassation proceedings within three days from its receipt by the claimant.” 16. On the same day the District Court also examined the Mayor’s claim and decided to grant it. The relevant parts of its judgment read as follows: “...The defendant [the applicant] was duly notified about the date and the place of the court hearing but has failed to appear before the court while the court has not accepted the power of the advocate who has appeared on her behalf as her representative, on the ground that the power of attorney was not duly certified. ... Taking into account that the ground [the Mayor’s decision of 22 July 2005], based on which the lease agreement was concluded and the title registered, no longer exists, the court finds that ... the agreement on lease of land concluded between [the applicant] and the Yerevan Municipality should be terminated and her certificate of ownership/use [and] the right of lease of immovable property be annulled.” 17. On 8 November 2006 the District Court sent a copy of its judgment to the applicant by post. It appears from the postal envelope that the copy of the judgment was delivered to the applicant’s local post office on 18 November 2006 and was received by the applicant on 20 November 2006. 18. On 15 November 2006 advocate G. lodged an appeal on points of law with the Court of Cassation against the District Court’s decision not to admit the counter-claim. He claimed that the provisions of the civil legislation did not require that a power of attorney issued to an advocate be certified by a notary. He also added that the imposition of such a requirement restricted the right of access to court since the notary, as a public official, interfered with the relationship between advocate and client and made the possibility to institute court proceedings conditional on his prior approval. 19. On 28 November 2006 G. lodged an appeal with the Civil Court of Appeal against the District Court’s judgment of 1 November 2006 on behalf of the applicant, together with a request to restore the missed time-limit for appeal, alleging that a copy of the judgment had been served upon the applicant outside the time-limit for lodging an appeal against it. 20. On 1 December 2006 the Court of Cassation declared G.’s appeal against the decision refusing the admission of the counter-claim inadmissible for lack of merit. The relevant parts of this decision state the following: “The Civil Chamber of the Court of Cassation ... having examined the appeal on points of law against the decision of 1 November 2006 ...lodged by [the applicant’s] representative [G.] ... found that it should be returned for the following reasons: According to Article 230 § 1 (4.1) of the Code of Civil Procedure of the Republic of Armenia, an appeal on points of law should contain one of the grounds stated in Article 231.2 § 1 of the Code of Civil Procedure. ... the present appeal on points of law only mentions the elements of points 1 and 3 of Article 231.2 § 1; however the appellant has not submitted proper and sufficient arguments in relation to them; therefore the requirements of Article 230 § 1 (4.1) of the ... Code of Civil Procedure have not been met. In such circumstances, the violations of the above-mentioned requirements serve as a basis for returning the appeal on points of law. ... In view of the above reasoning ... the Court of Cassation decides to return the appeal on points of law against the decision of ... of 1 November 2006 lodged by [the applicant’s] representative [G.]...” 21. On 19 January 2007 the Court of Appeal rejected the request to restore the missed time-limits for lodging an appeal and left the appeal against the judgment of 1 November 2006 unexamined stating the following: “Having examined the appeal lodged by [G.], the representative of the defendant in the present case, and the request seeking to restore the missed time-limit, [the Court of Appeal] found out that on 28 November 2006 an appeal was lodged against the judgment ... of 1 November 2006 by ... [the applicant’s] representative G., who had failed to respect the fifteen-day time-limit prescribed by the law. The appellant has requested ... to restore the missed time-limit for lodging an appeal in view of the fact that the District Court served the copy of the given judgment on the defendant belatedly. The court finds that the request should be rejected and the appeal dismissed since the appellant has failed to submit any documentary proof which would substantiate this allegation; moreover, ... the case file contains a postal receipt ... according to which a copy of the above judgment was sent to [the applicant] on 8 November 2006 with registered mail in accordance with the procedure and within the time-limits prescribed by ... the Code of Civil Procedure. ...” 22. On 26 January 2007 G. lodged an appeal on points of law against this decision with the Court of Cassation, on behalf of the applicant. He argued, in particular, that there was no evidence in the case file, such as an acknowledgement of receipt, which would substantiate that the defendant had received the copy of the judgment in a timely manner. In such circumstances, where it was the courts’ duty to serve their decisions in due time, the Court of Appeal should not have placed the responsibility of producing proof of belated receipt of the judgment on the party to the proceedings. 23. On 15 February 2007 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit. In doing so, it stated, in particular, that: “The Civil Chamber of the Court of Cassation ... having examined the appeal on points of law lodged by [G.] against the decision of the Civil Court of Appeal of 19 January 2007 to return [the applicant’s] appeal, found that it should be returned for the following reasons... The Court of Cassation finds that the admissibility criteria set out in Article 231.2 § 1 of the Code of Civil Procedure are absent in the appeal on points of law lodged in the present case. Besides, the person who has lodged the appeal has failed to submit a power of attorney drafted in compliance with the civil legislation ... At the same time, the Court of Cassation does not find it appropriate to provide a time-limit to rectify the errors and resubmit the appeal on points of law. ... the Court of Cassation decides to return the appeal on points of law lodged by [G.] against the decision of the Civil Court of Appeal of 19 January 2007 to return [the applicant’s] appeal...” | 1 |
test | 001-150319 | ENG | UKR | CHAMBER | 2,015 | CASE OF CHOPENKO 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 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6-3-c - Defence in person;Article 6 - Right to a fair trial) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens | 6. The applicant was born in 1970. He is currently serving a life sentence in Dnipropetrovsk. 7. On 23 June 2005 O.K., a young woman, was found hanged on a tree in a forested area near a bus station. It was also discovered that her mobile phone, earrings and ring were missing and that she had had sexual intercourse shortly before her death. 8. At about 2 p.m. on 27 June 2005, officers of the Apostolovskiy District Police took the applicant to the police station for questioning in connection with the investigation into O.K.’s death. 9. On the same day, the applicant signed a confession statement according to which on the afternoon of 22 June 2005 he had met O.K. at a bus station and asked her to have sex with him in the nearby forest. O.K. had agreed to his proposal and volunteered her ring and earrings after intercourse. As the applicant was leaving, she had threatened to complain that she had been raped and robbed. In order to get away, the applicant had grabbed her by the neck; O.K., still alive, had lost consciousness and he had taken her mobile phone and left the scene. 10. According to the applicant, between 27 and 28 June 2005 he remained in police custody without any record being drawn up or his relatives being notified. 11. On 28 June 2005 the applicant was questioned by an investigating officer of the Apostolovskiy District Prosecutor’s Office and gave further details of his encounter with O.K. He stated that after she had lost consciousness he had taken the cord from her umbrella, tied it round her neck and hung her on the tree. The applicant’s statements were recorded on a form headed “Explanation”, which did not refer to any criminal proceedings against him, but stated that the applicant had been informed of his right under Article 63 of the Constitution not to incriminate himself. 12. At an unspecified time on the same date an investigating officer of the District Prosecutor’s Office instituted criminal proceedings against the applicant on suspicion that he had committed a non-aggravated murder within the meaning of Article 115 § 1 of the Criminal Code of Ukraine and notified the applicant of his right to legal assistance. He further drafted an arrest report according to which the applicant had been arrested as a suspect at 6.15 p.m. on that date at the premises of the prosecutor’s office. 13. After the applicant’s arrest he was assigned a legal-aid lawyer, M., and was officially questioned as a suspect in her presence from 6.35 p.m. until 8.50 p.m. During the questioning, the applicant largely reiterated his previous statements. 14. On the same date the applicant surrendered a gold ring to the police, which, as subsequently confirmed by her relatives, had belonged to O.K. O.K.’s former phone was also either seized from the applicant’s home or surrendered by him. 15. On 1 July 2005 the Dnipropetrovsk Apostolovskiy District Court ordered the applicant’s remand in custody as a preventive measure. It appears from the case-file materials that that decision was not appealed against. 16. On 2 July 2005 the applicant, questioned in M.’s presence, provided further details concerning his sexual encounter with O.K. He also stated that all his confessions had been voluntary and no pressure had been applied by the authorities to make him confess. Feeling remorse for his crimes, he wounded himself with a pen top in an attempt to cut his veins and commit suicide, but his cellmate intervened. 17. On 5 July 2005 M. was replaced by Sh., another legal-aid lawyer. 18. On the same date the applicant was taken to the site of the crime and participated in a reconstruction of the crime scene in Sh.’s presence. 19. On 6 July 2005 the applicant was examined by a medical expert, who found that he had a wound on the inner side of his left elbow, inflicted on or about 1 July 2005. The expert further recorded that, according to the applicant, the wound was self-inflicted and he had not been ill-treated by the authorities either during his arrest or in detention. 20. On 7 July 2005 the applicant was indicted of non-aggravated murder. On the same date he was questioned as an accused in the presence of Sh. and confirmed his previous statements. 21. On 12 August 2005 the applicant was placed in a psychiatric hospital for an assessment of his mental state, where he stayed until 9 September 2005. According to him, during that period of time he was administered psychotropic drugs. 22. On 23 September 2005 the charges against the applicant were reclassified as aggravated murder, within the meaning of Article 115 paragraph 2, rape, and robbery. 23. On 26 September 2005 a new lawyer, N., hired by the applicant’s family, was admitted to the proceedings to replace the legal-aid lawyer Sh. On the same date the applicant, when questioned in presence of N., claimed he was innocent and refused to provide any further explanations. 24. In the autumn of 2005 the applicant was committed for trial at the Dnipropetrovsk Regional Court of Appeal (“the Regional Court”), acting as a first-instance court. 25. During the trial the applicant pleaded not guilty. He maintained that on 27 June 2005 he had confessed to murdering O.K. as a result of psychological and physical ill-treatment by police officers; in fact, he had never met O.K. On 22 June 2005 he had purchased a mobile phone, a ring and earrings from a stranger on the street. 26. On 16 December 2005 the Regional Court found the applicant guilty of rape, theft, robbery and aggravated murder. It referred to various sources of evidence, including the applicant’s confession statements given on 27 June 2005 and during the further course of the investigation, witness statements, forensic assessments, and DNA evidence. The court dismissed the applicant’s allegations of ill-treatment as unsubstantiated and sentenced him to life imprisonment. 27. On 21 December 2005 the applicant received a copy of the Regional Court’s judgment of 16 December 2005. 28. On 10 January 2006 the applicant submitted a cassation appeal against that judgment. He maintained his innocence and alleged that on 27 June 2005 he had been beaten and given electric shocks by the police officers to break his moral resistance and make him confess to the murder, and that they had also threatened to plant narcotics on his wife if he refused to cooperate. 29. Subsequently (on 8 February, 2, 6 and 9 March 2006), the applicant submitted supplementary pleadings in which he challenged the validity of the various sources of evidence relied on for his conviction. He also complained that he had not been provided with an opportunity to contact his relatives or with access to a lawyer before his first questioning, and that he had been administered psychotropic drugs during his psychiatric assessment. He also maintained that N., the lawyer hired by his family, had performed his duties in bad faith. In particular, he had hardly visited the applicant and had completely failed to participate in the cassation proceedings. 30. On 20 January 2006 the applicant received a rectified copy of the judgment of 16 December 2005, as the previous copy had been found to contain some technical errors. 31. On 17 February 2006 the applicant filed an application with the Supreme Court requesting it to ensure his personal presence at the cassation hearing. 32. On 6, 14 and 28 March 2006 the applicant lodged further requests to be present at the hearing. He also requested the Supreme Court to summon his first lawyer, M., for the hearing and noted that he had never refused her services and did not know why she had been excluded from the proceedings. 33. On 27 March 2006 the Supreme Court rejected the applicant’s request to be present at the hearing, finding that it had been lodged outside the one-month statutory time-limit. 34. On 14 April 2006 the applicant re-lodged the request to be present at the hearing, stating that he had obtained the final copy of the judgment only on 20 January 2006 and had lodged his request within one month of that date. 35. On 18 April 2006 the Supreme Court held a hearing in the applicant’s case. The hearing was not attended by either the applicant or a lawyer on his behalf. 36. On the same date the Supreme Court dismissed the applicant’s cassation appeal and upheld the previous judgment. It noted, in particular, that there was no evidence that the applicant had been subjected to illtreatment or that his right to defence had been breached in a way incompatible with his right to a fair trial. It further noted that the case file contained sufficient evidence of the applicant’s guilt, including his own confession statements given in the presence of his lawyers. According to the text of the judgment, the prosecutor, who had been present at the hearing, had requested that the applicant’s appeal be dismissed and the first-instance court’s judgment be upheld. 37. On various dates after his conviction, the applicant unsuccessfully complained to various authorities, including the prosecutor’s office and the Advocate Qualification Commission, about his alleged ill-treatment, the poor performance of his lawyer N., and other alleged breaches of his procedural rights. | 1 |
test | 001-145348 | ENG | CHE | CHAMBER | 2,014 | CASE OF M.P.E.V. AND OTHERS v. SWITZERLAND | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Ecuador) | András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens | 5. The first and second applicants were born in 1969, and the third and fourth applicants in 1986 and 1999 respectively. They live in Geneva. 6. The first and second applicants married on 25 December 1988 in Ecuador and brought up the third and fourth applicants together. The third applicant is the second applicant’s daughter and the first applicant’s stepdaughter; the fourth applicant is the first and second applicants’ daughter. 7. Between 1995 and 1999 the applicants sought asylum in Switzerland on three occasions. Each time their applications were rejected they returned to Ecuador. 8. On 1 January 2002 the applicants, having re-entered Swiss territory, filed a fresh request for asylum. The first and second applicants claimed that they had been tortured and had received death threats from the Ecuadorian police after the first applicant had attended two political demonstrations in Quito. 9. On 4 February 2002 the Swiss Federal Office for Refugees (“the Refugee Office”) rejected the applicants’ request. 10. On 1 March 2005 the first applicant was convicted of selling stolen goods and was given a three-month suspended prison sentence and fined 2,000 francs (CHF). On 15 October 2007 he was convicted of driving without a valid licence and sentenced to 80 hours of community service. On 9 April 2008 he was convicted of attempting to steal perfumes in a shopping centre and was sentenced to 120 hours of community service. On 14 April 2009 he was convicted of buying stolen goods and given a ninemonth suspended sentence and fined 1,000 CHF. The suspension of his previous sentence having been revoked, he served this sentence as from December 2009. 11. On 24 October 2007 the Federal Administrative Court quashed the decision of 4 February 2002 and ordered the Refugee Office to review the applicants’ request. It considered that the information contained in medical records regarding the first applicant’s state of mental health drawn up in Ecuador in 2001 might be a reason to grant refugee status to the applicants. According to medical certificates, the first applicant suffered from posttraumatic stress disorder (PTSD), depression and schizoaffective disorder. He had been hospitalised on several occasions after attempting to commit suicide. 12. In May 2009 the first and the second applicants separated. Their young daughter, the fourth applicant, stayed with the second applicant, who obtained full parental authority, while the first applicant was granted extended access, including the right to see her every Wednesday, every second weekend and for half of the school holidays. 13. On 27 October 2009 the Refugee Office granted the third applicant a residence permit on humanitarian grounds. She then withdrew her asylum request and applied for Swiss citizenship, which was granted on 17 September 2012. 14. On 20 March 2012 the Refugee Office, following a fresh examination of the facts, rejected the remaining applicants’ request for asylum. On 17 April 2012 they lodged an administrative appeal, arguing, inter alia, that they continued to have a close family relationship even after the first two applicants had separated. 15. On 7 September 2012 the Federal Administrative Court partially reversed the Refugee Office’s decision. The court specified, at the outset, that the decisions given by the Refugee Office could be contested before the Federal Administrative Court, whose decision was final. 16. The court also observed that the first and second applicants had separated and ceased living together, and that the fourth applicant usually lived with her mother. Accordingly, the family unit had ceased to exist and the principles established under Article 8 of the Convention no longer applied. As a consequence, each applicant’s residence rights had to be examined separately. The court considered that this approach was even more justified in view of the first applicant’s behaviour and his criminal record. 17. The court further observed that the fourth applicant was then thirteen years old and had from the age of two grown up in Switzerland, where she had attended school and was completely integrated. It appeared that she did not have any practical knowledge of her country of origin, having never returned after her arrival in Switzerland, and that she hardly spoke Spanish, Ecuador’s main language. Under these circumstances, the court considered that sending her back would amount to an uprooting of excessive rigidity (un déracinement d’une rigueur excessive) and granted her and her mother temporary residence (admission provisoire) in Switzerland for a further year, renewable on a yearly basis thereafter. 18. Regarding the first applicant, the Federal Administrative Court considered his expulsion to be lawful. The court observed, at the outset, that he had not established that he would be at any risk on his return to Ecuador. The court further considered that his state of health gave reason for concern, since he suffered from PTSD and had made several suicide attempts. However, the court observed that Ecuador had a health system which, even if it could not be compared to the Swiss system, was nevertheless reliable. The court considered that the applicant would have access to specialist care in the main urban centres of the country. 19. The court further noted that the first applicant’s attending doctors considered that his return to Ecuador was in itself likely to jeopardise his health, irrespective of the medical treatment he received. Furthermore, he would be confronted with serious social problems. However, the Federal Administrative Court considered that, under the pertinent legislation, the applicant’s criminal record excluded him from being granted temporary residence. The court noted in this context that the applicant had, over a longer period of time, acquired a total of 1465 stolen goods (primarily gold jewellery) deriving from various burglaries. | 1 |
test | 001-181881 | ENG | MNE | COMMITTEE | 2,018 | CASE OF ARČON AND OTHERS v. MONTENEGRO | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić | 4. At the relevant time all applicants were employed in a company called Kombinat aluminijuma Podgorica. 5. On 4 November 2003, 5 November 2003, and 28 January 2004 the applicants brought separate civil claims against their employer in the First Instance Court in Podgorica, seeking payments of the difference between the salaries which they had received and those which they had allegedly been entitled to on the basis of the Collective Labour Agreement (Kolektivni ugovor o radu). 6. On 7 March 2009 the first instance court in Podgorica joined and dismissed the applicants’ cases. 7. On 26 March 2009 the applicants lodged an appeal with the High Court in Podgorica. On 25 September 2009 the High Court upheld the decision of the first instance court. | 1 |
test | 001-145768 | ENG | FIN | GRANDCHAMBER | 2,014 | CASE OF HÄMÄLÄINEN v. FINLAND | 1 | No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);No violation of Article 14+12 - Prohibition of discrimination (Article 14 - Discrimination) (Article 12 - Men and women;Right to marry) | András Sajó;André Potocki;Dean Spielmann;Erik Møse;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Ledi Bianku;Linos-Alexandre Sicilianos;Luzius Wildhaber;Mark Villiger;Nebojša Vučinić;Päivi Hirvelä;Paul Lemmens;Paul Martens;Vincent A. De Gaetano;Zdravka Kalaydjieva | 9. The applicant was born in 1963 and lives in Helsinki. 10. The applicant was born male. She always felt that she was a female in a male body but decided to cope with the situation. In 1996 she married a woman and in 2002 they had a child. 11. The applicant started feeling worse in 2004, and decided in 2005 to seek medical help. In April 2006 she was diagnosed as a transsexual. Since that time, she has lived as a woman. On 29 September 2009 she underwent gender reassignment surgery. 12. On 7 June 2006 the applicant changed her first names and renewed her passport and driver’s licence but she could not have her identity number changed. The identity number still indicates that she is male, as does her passport. 13. On 12 June 2007 the applicant requested the local registry office (maistraatti, magistraten) to confirm her status as female and to change her male identity number to a female one as it no longer corresponded to the actual reality. 14. On 19 June 2007 the local registry office refused the applicant’s request. It found that, under sections 1 and 2 of the Transsexuals (Confirmation of Gender) Act (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet), confirmation of such status required that the person was not married or that the spouse gave his or her consent (see paragraph 29 below). As the applicant’s wife had not given her consent to the transformation of their marriage into a registered partnership (rekisteröity parisuhde, registrerat partnerskap), the applicant’s new gender could not be recorded in the population register. 15. On 6 July 2007 the applicant instituted proceedings in the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) complaining, inter alia, that her wife’s decision not to give her consent, which she was perfectly entitled to withhold as they both preferred to remain married, meant that the applicant could not be registered as female. A divorce would be against their religious convictions. A registered partnership did not provide the same security as marriage and would mean, among other things, that their child would be placed in a different situation from children born within wedlock. 16. On 5 May 2008 the Helsinki Administrative Court dismissed the applicant’s complaint on the same grounds as the local registry office. Moreover, it found, inter alia, that the impugned decision of 19 June 2007 was not contrary to Article 6 of the Constitution as same-sex partners had the possibility, by registering their relationship, to benefit from family-law protection in a manner partially comparable to marriage. Similarly, sections 1 and 2 of the Transsexuals (Confirmation of Gender) Act did not violate the constitutional rights of the applicant’s child. 17. On 8 May 2008 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds submitted before the local registry office and the Administrative Court. She also asked the court to make a request for a preliminary ruling to the Court of Justice of the European Communities, in particular on the interpretation of Article 8 of the European Convention on Human Rights. Referring to Articles 8 and 14 of the Convention, the applicant claimed that the State should not tell her that a registered partnership was appropriate for her, especially when this required that her wife become a lesbian. Their sexual identity was a private matter which could not be a condition for confirmation of gender. Transgenderism was a medical condition falling within the scope of private life. The State was violating her right to privacy every time the male identity number revealed that she was a transsexual. Moreover, she claimed that if her marriage were turned into a registered partnership, it would mean that she could no longer be a legal father to her child and could not be her mother either, as a child could not have two mothers. 18. On 3 February 2009 the Supreme Administrative Court refused the applicant’s request to apply for a preliminary ruling and dismissed her appeal. It found that by enacting the Transsexuals (Confirmation of Gender) Act the legislature had not intended to change the fact that only a man and a woman could marry and that same-sex partners could have their relationship judicially confirmed by registering it. The European Court of Human Rights had found, under Article 12 of the Convention, that there were no acceptable grounds for denying transsexuals the right to marry but that the margin of appreciation in this respect was wide. It was not possible under Finnish law for persons of the same sex to marry, but in such a case they could enter into a registered partnership. As to its legal and economic consequences, a registered partnership was essentially comparable to marriage. The question of transforming the institution of marriage into a gender-neutral one brought significant ethical and religious values into play and required the enactment of an Act of Parliament. The current state of the law was within the margin of appreciation given to the State by the European Convention. 19. On 29 October 2009 the applicant lodged an extraordinary appeal with the Supreme Administrative Court, requesting it to overturn its previous decision of 3 February 2009. She stated that she had undergone gender reassignment surgery on 29 September 2009 and that she could no longer prove that she had been male as indicated by her identity number and passport. Even though, for marriage purposes, she would still be considered as male, the fact remained that she should not be discriminated against on account of her gender. 20. On 18 August 2010 the Supreme Administrative Court dismissed the extraordinary appeal. 21. On an unspecified date the applicant also lodged a complaint with the Ombudsman for Equality (Tasa-arvovaltuutettu, Jämställdhets-ombudsmannen), complaining, inter alia, that she had the wrong identity number. 22. On 30 September 2008 the Ombudsman for Equality stated that she could not take a stand on the identity number issue as the matter had already been dealt with by the Administrative Court and the Ombudsman was not competent to supervise the courts. Moreover, the matter was pending before the Supreme Administrative Court. | 0 |
test | 001-156248 | ENG | MKD | CHAMBER | 2,015 | CASE OF ANDONOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1948 and lives in Kumanovo. He was a surgeon at Kumanovo Hospital. 6. On 17 September 2004 the applicant parked his car in a street in Kumanovo. After he returned, he found a notice of illegal parking under the windscreen wiper. He started his car and went looking for a police officer in order to discuss the issue regarding the ticket (the applicant alleged that there had been no sign there that parking was illegal). When he saw a police car he started following it until it stopped. Two police officers, M.A. and P.J., were inside the car. P.J. was a neighbour with whom the applicant was not on good terms. The parties presented rather conflicting versions of events as to what happened on that occasion. The Government’s account was based on the version of events which had been “correctly and fully established” by the national courts in the criminal proceedings against the applicant (see paragraphs 19-38 below). 7. While following the police car, the applicant signaled to it by flashing his lights. He did not sound the car horn. When he approached the police car, he addressed M.A. However, the two police officers started insulting him. P.J. said “I’ve been looking forward to this ...” P.J. opened the front passenger’s door “hard” and hit the applicant on the legs. Both officers left the car, grabbed the applicant by the shoulders and neck, and started punching him on the back. P.J. kicked and punched him all over the body. He was also hit on the back of the head. As a result, he slumped forward, which allowed P.J. to knee the applicant in the back, causing a fracture of two spinal vertebrae. M.A. also kicked him in the lower part of the back. He was then handcuffed, and while he was putting him into the police car P.J. kneed him in the lower back. During the incident, the applicant asked the officers to stop beating him, because he was in poor health: notably he had a weak heart and had had heart surgery. The incident was witnessed by many people. The applicant was then taken to Kumanovo police station, where the beating continued until he lost consciousness. 8. After an hour, an emergency ambulance was called, which took the applicant to Kumanovo Hospital. He was then transported to Skopje Clinic and subsequently to Skopje City Hospital, where he remained until 28 September 2004. 9. On 17 September 2004 Dr Z.T. from the Kumanovo Hospital examined the applicant and issued a medical report, which stated that the applicant had the following injuries: head contusion, concussion, bruises on the chest and back, and bruises on both arms. The medical report also noted that the applicant was in post-heart-attack condition, and that he had had heart surgery. 10. On the same day, an investigating judge of the Kumanovo Court of First Instance (“the trial court”) agreed to a request from the Ministry of the Interior (“the Ministry”) and ordered an external examination of the applicant’s body (телесен преглед). The order was issued in the context of criminal proceedings instituted against the applicant. The examination was carried out by the Forensic Institute (Институт за Судска Медицина). It took place on 18 September 2004, while the applicant was in Skopje City Hospital. As indicated in the medical report, the applicant stated that he had signaled by flashing his lights and had sounded the car horn to attract the police car’s attention so that it would stop; also that the police officers had beaten him up during his arrest and while they were taking him out of the police car to take him into the police station. The applicant further stated that he had been taken to the cardiology unit at Skopje Clinic and then, in a wheelchair (because he had numbness in his legs), to the emergency unit, where an X-ray examination was carried out on his chest, head and spinal column. He was then discharged from Skopje Clinic. Not satisfied, he went to Skopje City Hospital where, on admission, he complained of headache, other pain and nausea. During the examination by experts of the Forensic Institute, the applicant complained of pain in the back, head and chest. The report noted contusions on the applicant’s head, nose, chest, back, hip and both arms and legs. 11. According to a discharge notice issued by Skopje City Hospital, the applicant was hospitalised between 17 and 28 September 2004. It indicated that the applicant had sustained, inter alia, the following injuries: a compressive fracture of two vertebrae on the lower part of the spinal column as shown by the X-ray examination, concussion, head trauma and contusions on his back, right shoulder and wrist. According to the notice, the applicant had been examined in three hospitals, which had all established the same diagnosis and recommended that he be examined in that hospital. He was advised to remain in bed for four to six weeks. It was also indicated that the applicant was unfit to work. 12. On 8 February 2005 Dr Z.T. (see paragraph 9 above) issued, on the basis of available documentary medical evidence, a medical certificate indicating, inter alia, the following injuries: concussion; head trauma; fracture of two vertebrae; and contusions on the back, chest, and right wrist. In conclusion, the certificate stated: “I think this is a serious bodily injury under the Criminal Code, with permanent reduction of the activities of daily living, as well as consequences of a permanent nature, which would certainly affect the victim’s capacity to work ...” 13. On 10 July 2006 the Forensic Institute submitted to the trial court another expert report that the investigating judge had requested in relation to the applicant’s criminal complaint lodged against P.J. and M.A. (see paragraphs 39-68 below). The Forensic Institute was required to give an opinion about the applicant’s injuries and the way in which they had been inflicted. The opinion was based on extensive medical documentary evidence from the medical examinations that the applicant had undergone between 17 September 2004 (in Kumanovo Hospital, the cardiology and emergency units of Skopje Clinic, and Skopje City Hospital) and 12 October 2005. The Forensic Institute concluded that: “... on the basis of the medical evidence and the examination we carried out [the external examination of 18 September 2004, see above], [the applicant] sustained the following injuries in the fight with the two accused which took place on 17 September 2004: concussion, head trauma, bruises (and/ or lesions) on the nose; chest; hip; right shoulder, forearm and hand; left forearm, elbow and hand; right thigh and lower leg; left lower leg and fracture of the first vertebrae on the lumbar vertebral column ... As a result of the injuries he had sustained (the applicant) was hospitalised between 17 and 28 September 2004. During this time he received conservative treatment. The injuries that [the applicant] sustained ... to the head, body and extremities have been caused as a result of multiple dynamic impacts from a blunt object in the areas mentioned above, and these injuries represent, from the legal point of view, a bodily injury ... it can be concluded that the injuries sustained by (the applicant), notably concussion, vertebral fracture, contusions and bruises to the head, body and limbs, taken in view of their overall impact on the body of the victim, qualify as serious bodily injury that had a considerable, but not permanent, negative effect on vital parts of the body.” 14. On 8 October 2008 a private health institute, M., confirmed certain degenerative changes in the applicant’s spinal column, which were due to two vertebrae having been fractured. 15. On 19 September 2004 P.J. and M.A. submitted to the Ministry reports concerning the force used against the applicant. M.A. stated, inter alia,: “... we were provoked by (the applicant), who used offensive language and kicked the police car ... he spat at us and used offensive language. We asked him to identify himself, but he continued to insult us. We tried to put handcuffs on him, but he resisted actively. He grabbed the fingers of my left hand and bit me. My colleague pushed him away and we handcuffed him.” 16. As regards the force used against the applicant, M.A. noted that “both arms were twisted and the applicant’s leg was kicked.” 17. P.J. stated, inter alia, the following: “both arms were twisted so that handcuffs could be put on, and when the colleague was bitten, (the applicant) was punched in the head”. 18. On an unspecified date, the applicant informed the Department for Control and Professional Standards within the Ministry of the Interior (DCPS) about the incident, and complained that he had been subjected to acts of police brutality. In a reply dated 17 December 2004, the DCPS informed the applicant that he had been reported as having assaulted a police officer on duty. P.J. and M.A., as well as S.H. and V.V., who had been eyewitnesses to the incident of 17 September 2004, were also interviewed. On the basis of evidence obtained from them, the DCPS established that the applicant had used offensive language against P.J. and M.A., had resisted arrest, and had bitten M.A. on the right thumb. As regards the force used against him, the report noted that this had concerned the twisting of his arms and the use of handcuffs, which, as determined by a superior in the Ministry, had been necessary and justified. Accordingly, the DCPS concluded that the police officers concerned had acted in accordance with the law and the rules of the Ministry. 19. On 18 September 2004 the Ministry lodged a criminal complaint with the Kumanovo public prosecutor, accusing the applicant of assaulting police officers in the course of their duties during the incident of 17 September 2004. The Ministry alleged that the applicant, after receiving a parking ticket, had started following the police car, sounding his horn and flashing his lights. After the police car had stopped, he had approached it and started insulting the police officers and kicking the car. The applicant did not comply with the orders of the police officers to calm down, and actively resisted when they tried to arrest him. The applicant also bit M.A. on the right thumb, which was a serious bodily injury. In respect of the thumb injury a medical report of 17 September 2004, signed by Dr M.D., was attached to the criminal complaint. 20. The complaint further stated that the applicant had been examined in Kumanovo police station by Dr Z.L., who had recommended he be sent to Kumanovo Hospital. It was further stated that the medical report of the Forensic Institute that the investigating judge had ordered on 17 September 2004 (see paragraph 10 above), medical reports issued by the cardiology and emergency units of Skopje Clinic, Skopje City Hospital, and medical reports attesting to the injury sustained by M.A., would all be submitted later. The Ministry further asked the court to hear oral evidence from S.H. and V.V. 21. Between 21 and 28 September 2004 the investigating judge heard oral evidence from the applicant, P.J, M.A., S.H., V.V., and Dr Z.T. 22. S.H. stated, inter alia, that: “I know (the applicant), [at the relevant time] he was very upset and he was shouting in a loud voice ... I didn’t hear him use offensive language. The police (officers) left the car and asked (the applicant) to identify himself, but he did not produce any documents. The police officers tried to handcuff him, but he resisted ... I didn’t see the applicant bite the police officer. The police did not use force ... police officers managed to put handcuffs on the applicant, two pairs, they placed him on the rear seat and left. No force was used either by (the applicant) against the police or by the police against (the applicant). He was only resisting ... I emphasise that when I arrived, the door of the police car had been opened ... (the applicant) was not hitting the police car. Because there were a lot of people, I couldn’t see, and don’t know whether the applicant bit the police officer.” 23. V.V. stated, inter alia: “... because the police officers were inside the car, (the applicant) started shouting and hitting the car. The police officers left the car and asked him to identify himself. He said that he was not in possession of an ID, and then the police tried to handcuff him. He started shouting ‘People, help me, look what the police are doing, I have heart problems’. They did not let him go, they managed to handcuff him with two pairs of handcuffs. They put him in the car and brought him to the police station ... there was no hitting on either side, just (the applicant) was shouting ... I didn’t see, and I was standing close by, the applicant bite the police officer.” 24. P.J. stated, inter alia: “... (the applicant) was following us in his car ... he was sounding the car horn continuously and we stopped ... he was banging on the window and kicking the car ... when I opened the door, he spat at me and used offensive language ... M.A. got out of the car and asked him to identify himself. He continued shouting. Then I got out of the car. My colleague grabbed his left arm and twisted it behind his back ... then (the applicant) bit my colleague’s finger ... I grabbed (the applicant) and pulled him towards me ... he continued to kick my colleague; he kicked me as well ... I hit him with my lower arm, but not hard. We managed to handcuff him, he was resisting all the time ... when we placed him on the rear seat of the car, he was kicking, jumping, and moving from one side of the car to the other, because his hands were handcuffed behind his back. He constantly used offensive language, he was very arrogant, aggressive ...” 25. M.A. stated, inter alia: “... (the applicant) bit me on the left index finger (показалец) ... P.J. punched him on the right shoulder and the back of his head, hard, so that there was no need for me to hit him ... then (after they had handcuffed him) I hit him on the left knee and we put him in the car ...(the applicant) was alone on the back seat and he was swaying from one side to another saying that he was ill, that he had had three heart bypasses ... (the applicant) used offensive language against P.J. ... when I left the car, he kicked me on the thigh ...” 26. The applicant stated, inter alia: “... I note that while driving (following the police car) I flashed my lights to get (the police car) to stop, and I sounded the car horn ... P.J. opened the door, which hit me on the knees, and when both [P.J. and M.A.] got out of the car they started hitting me on the neck and shoulder ... I was hit in the chest ... they kicked me all over my body, when they handcuffed me and wanted to push me on to the back seat of the car, one of the police officers said that he had hurt his finger - it seems that he caught his finger in the handcuffs when they tried to put them on me. I didn’t bite him, and a bite cannot provoke a fracture. ... while I was inside the car, they hit me on the legs. When we got to the police station, they literally dragged me ... and started punching me on the back and kicking me ... they put me in a room with my hands tied and they hit me. In that room, I was hit very hard, as a result of which I fell down and lost consciousness ...” 27. Dr Z.T. stated that the available medical evidence indicated that M.A. had a bite wound and a fracture of his left thumb. He further stated: “It is possible that the bite did not cause the fracture, because the typical cause of that type of fracture is a fall on to the finger or a blow.” 28. On the basis of the available evidence, the investigating judge opened an investigation regarding the applicant, but refused to remand him in custody, finding that the applicant could not interfere with the investigation. He noted that the applicant was in poor health, notably that he had had heart surgery, and that two doctors had indicated that the applicant had sustained concussion and a fracture of the spinal column. 29. On 9 November 2004 the public prosecutor indicted the applicant for assault on a police officer in the course of his duties. On 15 December 2004 the applicant objected to the act of indictment, denying that he had assaulted the police officers, hit the police car or used offensive language towards them. He stated that he had been severely beaten in the incident for no reason, and that he had sustained bodily injuries which were confirmed by medical evidence. 30. On 15 November 2004 the public prosecutor requested information from the DCPS as to whether there had been any internal inquiry regarding the use of force against the applicant. 31. On 14 January 2005 the DCPS replied that the force used against the applicant during the incident of 17 September 2004 consisted of twisting his arms behind his back and using handcuffs to subdue him. It also forwarded a copy of the report in which the use of force had been regarded as justified by a superior within the Ministry. Copies of written statements by S.H. and V.V., made to the police on 17 September 2004, were also attached. 32. At a hearing held on 1 June 2005 before the trial court, the applicant stated, inter alia: “... when the police officers handcuffed me, I did not resist ... after they took me into the police station ... P.J. punched me on the back of the head, which had also been done in front of the police station. I was also hit in the eye ... when I approached the police car at the critical moment I noticed that P.J. was sitting in the driving seat. When he opened the window I addressed the other police officer ... [when the trial judge brought the applicant’s attention to his statement given before the investigating judge as to which police officer he had addressed on that occasion, the applicant stated] what I’m saying today is true. The investigating judge probably did not understand what I had said and my health was poor and I was in a difficult psychological state ... During the incident, I neither saw that M.A. was injured nor did I hear him say that he had been injured. I did not take any physical action against him, nor did I assault him.” 33. On that occasion M.A. confirmed that he had been bitten on the left thumb, as he had stated before the investigating judge (see paragraph 24 above). He did not know why the record of his questioning before the investigating judge indicated differently. The applicant objected to M.A.’s statement. 34. During a hearing on 19 October 2005, the trial court rejected the applicant’s request for oral evidence to be taken from Dr M.D. (see paragraph 18 above) as to whether M.A. had sustained an injury to the left or the right hand. The trial court found that an examination of Dr M.D. would not contribute to the establishment of the truth, given that both the hospital records and the medical certificate recorded an identical diagnosis. 35. Following the hearing of 19 October 2005, the trial court found the applicant guilty of assaulting a police officer in the course of his duties, and sentenced him to five months’ imprisonment, suspended for two years. The court established that the applicant had used offensive language against P.J. and M.A. during the incident of 17 September 2004, and had kicked the police car. When P.J. had opened the door of the car, the applicant had spat at him. M.A. had asked the applicant to produce an identity card, which the latter had refused to do. Then M.A. had twisted the applicant’s arm to get him into the car. The applicant had bitten M.A. on the left thumb. P.J. had punched the applicant on the right shoulder and the back of the head, which had caused the applicant to release the thumb. The applicant had then been handcuffed with two pairs of handcuffs. The court also established that the applicant had continued to resist in the police car during his transfer to the police station, by kicking the interior of the car. 36. The applicant appealed, arguing that the evidence regarding the alleged injury sustained by M.A. was inconsistent; that the medical evidence attesting to the alleged thumb injury had been issued in respect of another person with a similar name to M.A., and that the expert evidence regarding M.A.’s alleged injury had been produced on the basis of photographs of the victim’s thumb, without M.A. being examined in person. Lastly, the applicant complained that the trial court had disregarded the medical evidence supporting the injuries that he had sustained in the incident. 37. On 24 March 2006 the Skopje Court of Appeal upheld the trial court’s judgment and confirmed the applicant’s conviction, finding no grounds to depart from the established facts and reasoning given by the trial court. 38. By decisions of 16 March and 5 May 2009 respectively, the trial court and the Skopje Court of Appeal dismissed the applicant’s request for reopening of the proceedings. 39. On 3 February 2005 the applicant lodged a criminal complaint with the State Prosecutor, charging P.J. and M.A. with several offences: physical assault, serious bodily harm, abuse of office, false testimony, and degrading treatment. On 8 February 2005 the complaint was transmitted to the Kumanovo prosecutor’s office for consideration. 40. On 16 February 2005 the applicant lodged a criminal complaint seeking an indictment of P.J. and M.A. by the Kumanovo public prosecutor for assault and serious bodily harm, as well as for abuse of office. He submitted that during the incident of 17 September 2004 he “had been brutally attacked, insulted and brutally beaten by P.J. and M.A. in the presence of hundreds of people on the street, as well as in front of and inside Kumanovo police station”. He also requested that evidence be obtained from S.H. and V.V. In support, the applicant submitted the medical certificate issued by Dr Z.T. on 8 February 2005 (see paragraph 12 above). 41. On 3 March 2005 the applicant asked the public prosecutor to examine the criminal complaint as soon as possible, together with all evidence that had become available during the investigation of the case. He further enquired why the public prosecutor had not initiated proceedings to have the police officers concerned suspended or fined. 42. On 11 March 2005 the public prosecutor contacted the emergency unit at Skopje Clinic to obtain information as to whether the applicant had undergone an X-ray examination, and if so whether the examination had revealed a spinal fracture. On 6 April 2005 the emergency unit replied that the X-ray examination report had been handed over to the applicant. 43. On 7 April 2005 the public prosecutor informed the applicant that the appropriate authorities had been consulted with a view to obtaining relevant information about the case. 44. The applicant further addressed the public prosecutor on three occasions, alleging obstruction and seeking to have appropriate measures taken. 45. On 20 May 2005 the public prosecutor contacted the director of the emergency unit of Skopje Clinic, asking for an official note to be drawn up by the doctor who had carried out the X-ray examination of the applicant as to whether that examination had revealed a double fracture of the spinal column and whether the applicant had sustained concussion or it had just been a subjective feeling of which he had complained. The letter further requested that the emergency unit submit copies of all relevant medical reports to the public prosecutor. The Government did not indicate whether the emergency unit of Skopje Clinic had complied with this request. 46. On 25 May 2005 the Kumanovo public prosecutor rejected the criminal complaint, finding no grounds that the accused had committed the alleged offences, namely aggravated bodily harm and abuse of office. In the decision, the public prosecutor relied on the statements of S.H. and V.V. given in the criminal proceedings against the applicant and the report of the DCPS of 14 January 2005 (see paragraph 31 above). This decision was served on the applicant on 30 May 2005. 47. In the meantime, without knowing about the rejection of his complaint, on 26 May 2005 the applicant informed the Kumanovo public prosecutor that all relevant evidence, including the discharge notice from Skopje City Hospital, the medical report of his outpatient examination carried out by the Forensic Institute on 18 September 2004, as well as the statements of the accused, the witnesses and the applicant, had already been brought to the attention of the public prosecutor. 48. On 7 June 2005 the applicant, represented by R.C., a lawyer practising in Kumanovo, informed the trial court that he would take over the prosecution as a subsidiary prosecutor, and applied to the investigating judge for an investigation against P.J. and M.A. The applicant described the incident of 17 September 2004 as follows: “... when (the applicant) approached (the police car) ... P.J., who was in the driving seat, pushed the door open hard and hit (the applicant) in the lower part of both legs, then both accused left the car in order to arrest (the applicant). P.J. started punching and kicking (the applicant) all over his body, inflicting numerous injuries, the hardest blow being the one to the back of his head, which caused (the applicant) to lose consciousness and slump down. He was thus in a position that enabled P.J. to knee him in the back, as a result of which he sustained compressive fractures of (two vertebrae), while M.A. kicked him in the lower back. Then they handcuffed his hands behind his back and took him into Kumanovo police station, where they continued to beat him, as a result of which (the applicant) lost consciousness. Medical assistance was required, and (the applicant) was transported to Kumanovo Hospital, from where he was transferred to Skopje Clinic, where he remained for eleven days, following which he was a patient at home and was on sick leave for over five months.” 49. In support of the criminal complaint, the applicant submitted, inter alia, copies of the discharge notice from Skopje City Hospital and of the Forensic Institute report dated 18 September 2004, as well as of “other medical material”. He further requested the court to hear evidence from the accused, S.H., V.V., his wife and son. 50. On 11 July 2005 the trial court forwarded the criminal complaint and supporting documents to the public prosecutor for further consideration, given that the charges concerned serious injury, a crime which was subject to State prosecution. By letter on 14 September 2005 the public prosecutor informed the trial court that the Kumanovo prosecutor’s office had already examined and rejected the applicant’s criminal complaint against the accused, for lack of suspicion that they had committed the alleged offence. Similar information was forwarded on 14 October 2005 to the State prosecutor’s office. 51. In the meantime, on 12 September 2005, the investigating judge, after hearing oral evidence from the applicant, his wife and son and the accused, opened an investigation against P.J. and M.A. on account of reasonable suspicion that they had caused serious bodily injury punishable under the Criminal Code. On 29 September and 13 October 2005 the trial court dismissed appeals by the accused. 52. On 29 September 2006 the applicant, through his lawyer, submitted to the trial court a subsidiary indictment (супсидијарен обвинителен акт) accusing P.J. and M.A. of inflicting grievous bodily harm on him; this was supported by the Forensic Institute medical report of 10 July 2006 (see paragraph 13 above). In the indictment, the applicant reiterated that he had been beaten up by the accused when he had approached their car to discuss the issue of the parking ticket, and that the assault had continued inside the police station. 53. During a hearing held on 22 October 2007, Mr Z.J., a lawyer practising in Kumanovo, whom the applicant had meanwhile appointed to represent him in the case, stated that the applicant’s allegations of police brutality were supported by the medical report of the Forensics Institute, which designated the applicant’s injuries as serious. Since charges of serious bodily injury were subject to State prosecution, he asked for the case file to be transmitted to the public prosecutor for the latter to take over the prosecution. On the same date, the trial court contacted the public prosecutor’s office with a view whether it would take over the prosecution, which that office, by letter of 29 November 2007, refused to do. 54. On 31 January 2008 the trial court heard oral evidence from the accused and the applicant. 55. P.J. stated, inter alia: “... we noticed that (the applicant) was flashing his lights ... and then he started sounding the horn ... the applicant started banging on the window of (the car) and kicking it ... he spat at me ... continued to use offensive language ... we asked him to produce his identity card ... (the applicant) started kicking me and M.A. ... there were people who obviously knew (the applicant), they approached him asking him to calm down, but he pushed them away, as he was not paying attention to them, his behaviour was ferocious ... at one moment (the applicant) pressed M.A. hard against the rear door [of the car] with his body ... and M.A. screamed loudly. I thought it was due to the pressure, but then I saw that M.A.’s thumb was in (the applicant’s) mouth ... I pulled (the applicant) hard towards me to get him away from M.A., and I tried to hit him with my right arm on the back of the head, but (the applicant) slumped forward and my fist and elbow slipped next to his head, which I cannot consider as a blow, but we specified it in our official records as such ... we handcuffed him with two pairs of handcuffs behind his back ...(the applicant) did not stop resisting and assaulting us, kicking us. Handcuffed behind his back, he leaned on (the car) again as before, throwing himself [at the car] and leaning on the car, he was kicking us, we managed to put him in the car with his back on the rear seat of the car. Then he started kicking out hard at the door of the car, and we couldn’t close the door. Then, he lay on the rear seat and hit his head against the other door. He did that intentionally ... the interior of the car was badly damaged. While he was hitting his head against the right rear door and kicking the left door ... [which] we managed to close, he continued kicking the front seats and intentionally banged his head against the front seats and ... the rear seats. When we were trying to arrest him we were aware of his age and tried not [to allow] him to hurt us or himself; we refrained from using more drastic means of coercion, despite the fact that we had batons and we were trained in restraint techniques .... Then we brought him to Kumanovo police station ... and during the whole time he was furiously agitated in the rear seat. Although he was handcuffed, he was banging his head and other parts of his body against the interior of the car ... I did not punch, kick or use any other force [against the applicant] except as I have described in my statement ... My colleague M.A. did not hurt (the applicant), he was just holding him by the arm.” 56. M.A. stated, inter alia: “... My colleague P. and I got out of the car and I asked (the applicant) to produce a driving licence, an ID card or any other document bearing his photo. He continued using offensive language against us and kicked the car. At that moment I took out the handcuffs ... (the applicant) resisted, kicked the car ... jumped up at the car and us, he was acting, so to say, like a lunatic. At that time, my colleague and I did not use any other force apart from twisting his arms and using the handcuffs ... [while they tried to handcuff the applicant], he was moving constantly left and right and throwing himself against the car ... he was kicking the car and hitting his head against the roof of the car, we could hardly manage to put him on to the back seat of the car and close the door. From that moment and until we brought him into the police station ... (the applicant) was throwing himself to left and right inside the car ...” 57. In his statement, the applicant alleged that he had been beaten by P.J. and that M.A. had beaten him during his arrest and immediately before and after they had brought him into the police station. He further stated, inter alia: “... (P.J. and M.A.) stopped the car ... until then, there was no ... communication with the police car, nor were any signals used... [after he was brought into the police station] it took about forty-five minutes before the ambulance arrived ... Then, they immediately transferred me to Kumanovo Hospital ... Then, from Kumanovo Hospital I was taken by ambulance to the cardiology clinic in Skopje ... a doctor instructed that I should be transferred to the surgical clinic in Skopje, because she had noticed bruises on my body ... then I was taken to the emergency unit ... they instructed that I should be taken to Skopje City Hospital. Police officers and inspectors accompanied me at all times ...” 58. On 19 February 2008 the State prosecutor inquired as to why the Kumanovo prosecutor’s office had refused to prosecute, given that the applicant’s injuries were designated as serious by the Forensics Institute. By letter of 7 April 2008 the Kumanovo prosecutor replied that the medical report of the Forensics Institute dated 18 September 2004 (see paragraph 10 above) had not designated the applicant’s injuries as serious. The medical certificate of 8 February 2005 by Dr Z.T. (see paragraph 12 above) had been drawn up much later than 17 September 2004, the date of the incident. 59. At a hearing on 12 November 2008 the applicant’s representative sought a definitive answer from the public prosecutor as to whether he would take over the prosecution. In that connection he stated that it was not an option but a duty of the prosecutor to step into the proceedings, given the fact that the alleged offence was subject to State prosecution. On 18 November 2008 the public prosecutor informed the court that for the same reasons as outlined in its letter of 7 April 2008 (see paragraph 58 above), it would not take over the prosecution against P.J. and M.A. 60. On 24 March 2009 the trial court held a hearing in the presence of the applicant, his representative, the accused and their lawyers. According to the court record of that date, signed by the trial judge and the clerk, the applicant stated: “... I withdraw the subsidiary indictment of 20 September 2006 against the accused (Го повлекувам супсидијарниот обвинителен акт од 20 септември 2006 година провив обвинетите ...) ...” 61. On the same day the trial court stayed (запира) the proceedings, since the applicant had stated, in the presence of his legal representative, that he withdrew the subsidiary indictment. 62. The following day, on 25 March 2009, the applicant objected to the trial court’s decision to withdraw the indictment, and stated: “... I, as a lay person (неука странка), did not understand what the judge asked me, so I said that I withdrew the indictment, since I considered that the prosecution should be taken over by the public prosecutor. I wanted to maintain that right, namely ex officio prosecution through the public prosecutor, given the fact that the case concerns serious bodily injury, an offence punishable under Article 131 (1) of the Criminal Code, which is prosecutable ex officio by the public prosecutor. I therefore ask the court to reinstate the proceedings and to decide on my subsidiary indictment.” 63. In submissions of 26 March 2009 before the trial court, the applicant contested the validity of the statement for withdrawal of the indictment. He stated, inter alia: “... I underline that as a subsidiary complainant, I do not withdraw the subsidiary indictment of 20 September 2006 against the accused... I believe that the prosecution should be taken over by the public prosecutor, I maintain the right [to seek] that the prosecution be taken ex officio because it concerns an offence of causing serious bodily injury ... because the perpetrators of the crime are officials who overstepped their duties. For these reasons, I ask the court to reinstate the proceedings to their previous state and to continue to examine the subsidiary indictment.” 64. On 27 March 2009 the applicant complained to the Macedonian Bar about inactivity on the part of Mr Z.J., his legal representative, at the hearing of 24 March 2009, and asked the Bar to respond so that his case could be reinstated. He further stated: “While I was explaining, specifically while I was complaining about the way in which the trial was being conducted, the trial judge wrote in the court record that I was withdrawing the subsidiary indictment. At that time, I emphasised that I disagreed with that decision noted in the court record. My representative, Mr Z.J., did not react at all to the decision noted in the record [although] I’m a lay person (неук во правото и законите).” 65. Submissions with similar contents were sent on 27 March 2009 to the State Judicial Council (Судски Совет). 66. On 11 May 2009 the applicant, who was no longer represented, appealed against the trial court’s decision, arguing that he had never withdrawn the indictment against the accused. He reiterated that his statement concerned, in substance, his determination that the prosecution should be taken over by the public prosecutor. He further argued that he had complained aloud to the trial judge about the contents of the minutes, but to no avail. He stated that “I am shocked by the flagrantly incorrect interpretation of my statement”. 67. On 24 September 2009 the Skopje Court of Appeal dismissed the applicant’s appeal as unsubstantiated, and upheld the trial court’s decision. Relying on the court record of 24 March 2009, the court concluded that the applicant, in the presence of his legal representative, had withdrawn the indictment against the accused. In such circumstances, the trial court had correctly decided to stay the proceedings. This decision was served on the applicant on 20 October 2009. The proceedings were accordingly finally concluded. On 29 June 2010 the Supreme Court rejected as inadmissible the applicant’s request for extraordinary review of the decision. 68. By a decision of 15 October 2009 the trial court ordered the applicant to pay the equivalent of 1,400 euros (EUR) for the legal representation of the accused and travel costs. The applicant did not appeal against that decision. | 1 |
test | 001-160621 | ENG | RUS | CHAMBER | 2,016 | CASE OF DALAKOV v. RUSSIA | 3 | Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 5. The applicant was born in 1933 and lives in Karabulak, Ingushetia. He is the uncle of Mr Apti Dalakov, who was born in 1986. Mr Apti Dalakov’s parents and brother died in a car accident in 1998. 6. are disputed by the parties. 7. At about 5 p.m. on 2 September 2007 Mr Apti Dalakov and his friend Mr I.D. left a computer club in Karabulak. While they were walking down Oskanova Street, two Gazel minivans with heavily tinted windows and without number plates pulled over and a group of men armed with assault rifles and pistols emerged from the vehicles. Two of the armed men wore plain clothes, while the others were in camouflage uniforms and balaclavas. Without identifying themselves or giving any explanation they pointed their guns at Mr Apti Dalakov and Mr I.D. and opened fire. Mr Apti Dalakov ran away. The armed men pursued him and continued shooting. 8. In Dzhabagiyeva Street, in the presence of a number of local residents, including Mr I.B.M., Ms A.I.Ts. and Ms F.Kh.Ts., Mr Apti Dalakov was hit by a car and fell to the ground. He got up and limped into the courtyard of the adjacent nursery school. A man from the car which had hit Mr Apti Dalakov ran after him and fired at him several times with his pistol. Mr Apti Dalakov fell to the ground face down. Several other armed men ran towards the scene and one of them fired at Mr Apti Dalakov several times while he was on the ground. After having ascertained that Mr Apti Dalakov was dead, one of the armed men lifted his body and placed an object under it. 9. Shortly thereafter a group of officers of the local police and the special police force (Отдел милиции особого назначения (ОМОН)) (hereinafter “the OMON”) arrived at the scene. A number of civilians present on the premises and the adjacent streets alerted the police officers to the fact that Mr Apti Dalakov had not offered any resistance to his pursuers, that he had not been armed and that his pursuers had placed an object under his body; it turned out to be a hand grenade with its pin pulled. The police officers requested the pursuers, who were officers of the Ingushetia Department of the Federal Security Service (Федеральная Служба Безопасности (ФСБ)) (hereinafter “the FSB”) to identify themselves; they refused to do so. In the ensuing scuffle the police officers arrested the FSB officers and took them to the Karabulak town police department. Mr I.D., who had been arrested by FSB officers after the chase, was also arrested by the town police and then released several days later. 10. After bomb disposal experts had deactivated the grenade, Mr Apti Dalakov’s body was taken for a post-mortem examination and was returned to his relatives for burial at midnight on 2 September 2007. 11. The above account of the events is based on the information contained in the application form as well as on written statements by Mr I.B.M., dated 26 September 2007, Ms A.I.Ts. and Ms F.Kh.Ts., both dated 2 October 2007, and a written statement by the applicant dated 31 July 2009. 12. Referring to the contents of the investigation file in criminal case no. 27520028 the Government stated in their submission of 22 January 2014 that the circumstances of the incident had been as follows. “6. Between 5.30 p.m. and 6 p.m. on 2 September 2007 servicemen of the Ingushetia FSB found presumed members of a bandit group Mr Apti Dalakov and Mr [I.D.] The FSB servicemen got out of the service car and attempted to detain these two men. They ordered the two men to get down on the ground, having identified themselves as FSB agents. 7. Mr [I.D.] obeyed and lay down on the ground. Mr Apti Dalakov did not comply with the order and started to run away. One of the FSB agents followed him. During the pursuit he warned Mr Apti Dalakov that he would open fire if the latter did not stop. ... Mr Apti Dalakov stopped, took a grenade from his pocket and prepared to pull the pin. Taking into account information in their possession concerning the presumed criminal activity of Mr Apti Dalakov and his refusal to obey law-enforcement agents’ orders, the FSB officer took the decision to open fire, shooting to kill in order to eliminate the threat to his own life and health and that of the other people present at the time in the street. ... 9. As regards Mr [I.D.], on 3 September 2007 the record of his arrest was drawn up and he was questioned as a suspect ... arrest as a measure of restraint was chosen for him. He was released ten days later, and on or about 23 September 2007 he left to live permanently in Kazakhstan ...” 13. On 2 September 2007 the Karabulak investigating department of the Investigating Committee with the Prosecutor’s Office of the Russian Federation in Ingushetia (hereinafter “the investigating department”) opened criminal case no. 27520028 against Mr Apti Dalakov under Articles 317 and 222 § 1 of the Criminal Code (assault on a law-enforcement official and unlawful possession of arms and explosives). 14. On the same date, 2 September 2007, the investigating department examined the crime scene. According to the crime scene report, forty cartridge cases were collected from the scene and a grenade was found under Mr Apti Dalakov’s body, under the lower part of his stomach. No objects were found in the hands of Mr Apti Dalakov. As a result, forty cartridges and the grenade were collected from the scene for expert examination. 15. Between 2 and 11 September 2007 a senior operational search officer, Mr A.Kh. of the Internal Investigations Department of the Ingushetia Ministry of the Interior, conducted an internal inquiry in connection with “collaboration between police officers from the Ingushetia Ministry of the Interior and officers of the Ingushetia Federal Security Service” concerning the circumstances of Mr Apti Dalakov’s killing. Its results were stated in conclusion no. 172 dated 11 September 2007. The document, amongst other things, contained the following information: “... at about 5 p.m. on 2 September 2007 the FSB officers conducted a special operation in Karabulak aimed at arresting members of illegal armed groups. The local police department was not informed about it. During the special operation, the FSB officers eliminated a member of an illegal armed group, Mr Apti Dalakov, who had offered active armed resistance. At about 5.20 p.m. police captain [G.G.], who was on duty, ... had seen two armed men pursuing a young man who was running away; one of the armed men had opened fire on him. The pursuers had been accompanied by a white Gazel vehicle with darkened windows and without number plates. Captain [G.G.] had reported the incident to the duty unit of the Karabulak town police department, and had remained at his post ... A group of police officers dispatched to the crime scene from the town police station and a group of Ingushetia OMON which had arrived there after hearing shots from automatic weapons ... found a dead man and a disorderly group of about 100 people, some in camouflage uniforms and others in civilian clothing, who were shouting ... and yelling about why the police were not arresting armed bandits who had killed an unarmed man who had not offered any resistance. The armed men, who were in camouflage uniforms and civilian clothing, who had conducted this special operation, had refused to identify themselves, had not presented any documents, and had warned that they would use firearms against the police officers. The law-enforcement officers of Karabulak had taken those men for terrorists and/or active members of illegal armed groups ... Under these circumstances, to prevent the presumed law-enforcement officers from being lynched by the enraged crowd, the head of the Karabulak town police department, Lieutenant-Colonel [A.M.], had tried to separate the armed men who had killed [the man on the ground] and the civilians from the local residents. However, the police officers had ended up being isolated by the unidentified armed men and had become, in effect, their hostages; the armed men had behaved aggressively and refused to state what organisation they belonged to. The OMON group had arrived at the scene, quickly assessed the situation, and then blocked and disarmed the unidentified individuals using special physical force techniques against those who resisted. After that the armed men were taken to the Karabulak town police department and the premises of the OMON unit (the entire perimeter of the town police station had been surrounded by civilians expressing their indignation at the actions of the unidentified persons who had made several “insurance” shots to the head of the unarmed wounded young man who had fallen to the ground next to the nursery school and who, according to the nearby residents, then had placed an armed grenade under his body to make it look like the young man had offered resistance). The Ingushetia Minister of the Interior and the head of the Ingushetia FSB had arrived at the scene and taken the decision to immediately release the arrested persons to avoid making their identities known to the public ... The unidentified persons ... had offered resistance to the OMON officers ... as a result [of the scuffle], the police officers [M.O.] and [M.K.] and the head of the operational search unit of the Karabulak town police department, LieutenantColonel [A.Ts.], required medical assistance... All the arrested persons who were law-enforcement officers were released without logging their names in the detention log upon confirmation of their identities by the head of the Ingushetia FSB; their guns were returned to them ... Therefore, the above misunderstanding took place due to lack of proper coordination between the law-enforcement agencies who were carrying out a special task in the Republic of Ingushetia ...” 16. The documents submitted indicate that on various dates in September 2007 the investigators questioned several witnesses who lived near the crime scene. For the most part the witnesses stated that they had not seen the actual events but had seen a young’s man body on the ground surrounded by a large number of police who had cordoned off the area. 17. On 12 September 2007 the investigators questioned Ms F.Kh.Ts., who stated that at about 5 p.m. on 2 September 2007 she had been at home. She had looked out of the window on to Dzhabagiyeva Street and heard a muffled sound of an impact. Then she had seen a young man limping rapidly past her window into the premises of the nursery school. He had been followed by a masked man in camouflage uniform with a pistol and a man with a camouflage Tshirt pulled over his head. This man was running with an automatic rifle and firing at the young man. Then all three men went round the corner of the building. The witness had immediately run outside and followed the men. She saw the young man on his stomach on the ground, convulsing. The other two men were standing next to him and arguing. Then one of them ordered the witness to go away and she obeyed the order. After that a large number of police officers had arrived at the scene and cordoned off the area. 18. On 12 September 2007 the Ingushetia Forensic Examinations Bureau (“the Forensic Bureau”) concluded that the detonating fuse of the grenade recovered from the crime scene was not capable of exploding due to a missing part, but that the grenade itself was capable of exploding provided the fuse was in working condition. 19. On 19 September 2007 the investigators questioned a police officer of the Ingushetia OMON, Akh.Ya., who stated that at about 5.30 p.m. on 2 September 2007 he had been at work when he and his colleagues had heard sounds of sporadic gunfire coming from the area around Karabulak central market. He and thirteen to fifteen of his colleagues were then dispatched to the scene of the shooting, next to the nursery school. Upon arrival at the scene the witnesses had seen a large crowd of local residents and a group of about twelve to fifteen masked men with automatic firearms. The local residents had been aggressively expressing their indignation, as according to them the armed men had killed an unarmed young man; the body was still on the ground. The armed men had refused to identify themselves or to give reasons for killing the young man. They resisted the police officers: behaved aggressively, swore, fired their weapons into the air several times, and threatened the police with firearms. When the second group of police arrived, owing to the armed men’s behaviour and the threats from the outraged crowd of local residents they disarmed the masked men, forced them into a Ural lorry, and took them to the Karabulak town police department. 20. Between 20 and 28 September 2007 the investigators questioned the police officers M.K., M.Ku., B.She., M.Ts. and A.-G.M.; their statements concerning the events were similar to that of their colleague Akh.Ya. 21. On 22 September 2007 the investigators were informed by the Ingushetia FSB that it was impossible to question their officers implicated in the incident, as they were all undergoing medical treatment in hospital in Kislovodsk, Russia. 22. On 26 September 2007 the investigators questioned police officer Captain G.G., who stated that at about 5.30 p.m. on 2 September 2007 he had been on duty across the road from the nursery school. He had heard the gunshots and immediately called the police station. After that he had run out into the street and seen two men in the sand-coloured camouflage uniforms of special service agents. The men, who had been running ahead, had been firing at someone in front of them. Then the two men went round the corner of a building and out of sight. Then the men following them in a white Gazel minivan without registration numbers had turned and driven off. 23. On 1 October 2007 the Forensic Bureau informed the investigators of its conclusions concerning the cause of Mr Apti Dalakov’s death. According to their report of 3 September 2007, Mr Apti Dalakov had died from gunshot wounds, including two in the back, one in the back of the lower leg, and one in the back of the head. 24. On 15 or 16 October 2007 the investigators questioned an FSB officer, V.L., and granted him victim status in the criminal case. In his statement the officer submitted that at about 5 p.m. on 2 September 2007 he and his colleagues had arrived in Karabulak in a service vehicle to identify and detain members of an illegal armed group, Mr I.D. and Mr Apti Dalakov. At about 5.30 p.m. they had received information that both men were heading in their direction. The officers had been given descriptions of Mr I.D. and Mr Apti Dalakov and ordered to detain them. The witness and his colleagues got out of the car, shouted “on the ground! FSB!” and ran after the two men. Mr I.D. immediately got down on the ground, whereas Mr Apti Dalakov ran away. The witness thought Mr Apti Dalakov was armed and could offer resistance. The witness and his colleagues put Mr I.D. into their vehicle and then went after Mr Apti Dalakov. When the witness reached Dzhabagiyeva Street he heard “FSB! Stop!” and then “Stop or I’ll fire!” and then heard machine-gun shots and ran towards them. He saw his colleagues next to a two-storey building in Dzhabagiyeva Street, standing next to the body of Mr Apti Dalakov and one of the colleagues holding a grenade. He checked Mr Apti Dalakov’s pulse and confirmed that he was dead, then the witness and his colleagues called the mine squad and cordoned off the area. 25. On 16 and 17 October 2007 the investigators questioned FSB officers A.Ch., I.K., and P.Ch., and granted them victim status in the criminal case. The statements given by the three officers to the investigation were identical to that of their colleague, officer V.L. 26. On 2 November 2007 the investigating department terminated the proceedings in case no. 27520028. The decision referred to statements by FSB officers V.L., I.K. and P.Ch. They submitted, among other things, that on 2 September 2007 they had gone to Karabulak to arrest members of an illegal armed group, Mr Apti Dalakov and Mr I.D. When the officers had spotted the two men, they got out of their Gazel minivan and shouted: “FSB! Get down!”. Mr I.D. had complied with the order but Mr Apti Dalakov had run away. Officers A.B. and A.Ch. followed Mr Apti Dalakov, while V.L., I.K. and P.Ch. put Mr I.D. securely into their vehicle. After that they heard shooting and went to Dzhabagiyeva Street, where they found FSB officers and Mr Apti Dalakov, face down on the ground with a grenade in his hand. The officers checked his pulse, ascertained that he was dead, called bomb disposal experts and secured the area. The decision further stated that officers A.B. and P.Ch. “had given similar statements”, without providing any further details in that respect. The examination of the grenade seized at the scene by the authorities had established that it was capable of exploding. The decision concluded that there existed sufficient evidence to prove that Mr Apti Dalakov was guilty of assaulting lawenforcement officials and of unlawful possession of ammunition, but in view of his death in the exchange of fire the criminal case against him was to be terminated. The applicant learnt of that decision at some point in February or March 2008 (see paragraph 40 below). 27. On 3 December 2007 the head of the investigating department overruled the decision of 2 November 2007 to terminate the criminal investigation as unsubstantiated at the request of the Karabulak town prosecutor. The latter stated in his request, among other things, the following: “... the decision of 2 November 2007 ... is premature, unlawful and unsubstantiated due to the incompleteness of the investigation ... for instance, Mr [I.D.], who had complied with the order of the arresting group ... was not questioned about the circumstances of the incident. In addition, the investigators did not examine the legal grounds for the use of firearms against Mr A. Dalakov. From conclusion no. 172 of the internal inquiry of 11 September 2007 carried out by the Internal Investigations Department of the Ingushetia Ministry of the Interior, residents of the nearby houses had stated that after the liquidation of Mr A. Dalakov, an armed grenade had been placed under his body to make it look like he had offered armed resistance. However, this information was not examined further ...” The applicant was informed of the decision on 6 December 2007. 28. On 27 December 2007 the investigators separated the part of the evidence concerning the use of the firearms during the incident from criminal case no. 27520028 and forwarded it to another investigator in the Karabulak investigating department for further examination. In the documents submitted it is also stated that on the same date the same material was forwarded to the military investigations department of military unit no. 68799 for examination. 29. On 3 January 2008 the investigating department again terminated the proceedings in case no. 27520028 because of the death of the suspect. The text of the decision reiterated in identical wording the decision of 2 November 2007 (see paragraph 26 above). 30. On 22 January 2008 the head of the Ingushetia investigating department overruled the decision of 3 January 2008 to terminate the criminal investigation as premature and unsubstantiated. In particular, he pointed out that the investigators had neither questioned Mr I.D. and the FSB officer who had shot Mr Apti Dalakov nor obtained information on the inquiry concerning the use of the firearms against Mr Apti Dalakov by the FSB servicemen. 31. On 6 February 2008 the investigation in criminal case no. 27520028 was again terminated, because of the death of the suspect. The text of the decision reiterated verbatim that of 2 November 2007 (see paragraph 26 above) but did not mention that according to the mother of Mr I.D. the latter had moved to Kazakhstan on or about 23 September 2007. The applicant was not informed of that decision. 32. On 26 February 2008 the investigators requested the head of the military investigations department to inform them of the results of the examination of the materials concerning Mr Apti Dalakov’s killing. 33. On 28 February 2008 the military investigations department replied to the investigators that on 30 January 2008 they had refused to initiate criminal investigation into the killing owing to the lack of corpus delicti in the actions of the FSB officer A.K. who had opened fire on Mr Apti Dalakov. The copy of the decision enclosed with the letter indicated that the decision had been taken on the basis of the explanation given by officer A.K., which was identical to the statement given by him on 5 March 2008 to the investigators in criminal case no. 27520028 (see the paragraph below). Neither the applicant nor his relatives were informed of that decision. 34. On 28 February and 5 March 2008 respectively the investigators granted FSB officer A.K. victim status in criminal case no. 27520028 and questioned him. The officer stated that on 2 September 2007, as a member of a special combat group, upon the order of the head of the Ingushetia FSB, he had arrived in Karabulak to carry out a special operation aimed at arresting active members of “the Karabulak illegal armed group” Mr Apti Dalakov and Mr I.D., who were suspected of involvement in terrorist acts in Ingushetia. Having arrived at the place of the operation next to the nursery school, the officer had got out of the vehicle, run towards Mr I.D. and Mr Apti Dalakov, and shouted: “On the ground! FSB!” In reply to this warning Mr I.D. had got down on the ground, whereas Mr Apti Dalakov had started running away. The officer had run after him and continued shouting from time to time: “Stop! FSB!” Having understood that Mr Apti Dalakov had no intention of stopping, the officer shouted: “FSB! Stop or I’ll fire!” and then fired once into the air when Mr Apti Dalakov was about ten to fifteen metres away from him. At that point Mr Apti Dalakov had stopped, turned round to face the officer, taken a grenade out of the right pocket of his trousers and tried to pull out the fuse. Having assessed the situation as threatening, the officer opened fire, aiming to hit Mr Apti Dalakov. When the shots were fired Mr Apti Dalakov’s body was flung about in various directions and then he fell to the ground face down. After ascertaining that Mr Apti Dalakov was dead, the officer reported the incident to the head of the operation. The latter ordered the officer and his colleagues from the FSB to cordon off the area and wait for the investigators’ arrival. 35. On 5 September 2007 a relative of Mr Apti Dalakov, Mr M.Kh., complained to the Karabulak town prosecutor about the killing of Mr Apti Dalakov and asked for a criminal investigation to be opened into the matter. 36. On 20 and 29 September 2007 the applicant complained about the killing to the Ingushetia Prosecutor and the Karabulak town prosecutor. 37. On 10 October 2007 the town prosecutor replied to the applicant that on 2 September 2007 criminal case no. 27520028 had been opened against Mr Apti Dalakov concerning assault on a law-enforcement official and unlawful possession of arms and explosives. The letter did not specify whether any proceedings had been initiated to investigate Mr Apti Dalakov’s killing. 38. On 27 November 2007 the applicant complained to the town prosecutor that he had not been informed of any decisions in respect of the complaint concerning his nephew’s killing. 39. On 6 December 2007 the town prosecutor replied to the applicant that the decision to terminate proceedings in criminal case no. 27520028 had been overruled as unlawful and the proceedings resumed on 6 December 2007. The letter did not specify whether any proceedings had been initiated in respect of an investigation of Mr Apti Dalakov’s killing. 40. On 6 March 2008 the applicant again complained to the Karabulak investigating committee about Mr Apti Dalakov’s killing, and stressed that according to numerous witnesses his nephew had not been armed and had not offered resistance to FSB officers. However, none of those eyewitnesses had been interviewed and no criminal proceedings had been instituted in connection with his death. The applicant further stated that he had in the meantime been provided with the decision of 2 November 2007 and that the town prosecutor had overruled it as unfounded. The applicant requested the investigating department to institute criminal proceedings in connection with the killing and to question the FSB officers who had participated in the arrest of his nephew, the OMON and police officers and other eyewitnesses. He also asked the investigators to grant him victim status in those proceedings. The applicant’s complaint was received by the investigating department on 19 March 2008 but no reply was given to it. 41. On 14 August 2008 the applicant complained to the Karabulak District Court under Article 125 of the Code of Criminal Procedure about the failure of the investigating department to open a criminal case in connection with Mr Apti Dalakov’s killing and failure to take basic steps to establish the circumstances of the incident. In his complaint the applicant stated, amongst other things, the following: “... On 2 September 2007 ... officers of law-enforcement bodies shot and killed my nephew Mr Apti Dalakov, who, according to eye-witnesses, was not armed and did not resist. I lodged a request with the Ingushetia Prosecutor asking for a criminal case to be opened in connection with the killing. In reply I received the decision to terminate the investigation in criminal case no. 2750028 opened against Mr Apti Dalakov. The Karabulak Town Prosecutor overruled this decision ... I lodged another complaint with the Karabulak Investigating Department in which I requested that a criminal case be opened in order to investigate the killing of Mr Apti Dalakov; witnesses to the incident, in addition to the police officers from the Karabulak Town Police Department and the Ingushetia OMON who had participated in the detention of the FSB officers who had shot Mr Apti Dalakov, be identified and questioned ... and victim status in the criminal case be granted to me. This complaint was delivered on 19 March 2008. According to ... the Russian Criminal Procedure Code, my complaint should have served as the reason for opening of a criminal case ... a criminal case is opened when there is sufficient evidence that a crime has been committed... and the decision is taken within ten days from the receipt of the complaint... However, those regulations were not complied with. The investigating authorities received my complaint, but they neither took any appropriate decisions nor informed me thereof. This procedural violation led to the failure to take the other steps I had requested in my complaint. Witnesses to the incident, who could have confirmed Mr Apti Dalakov’s killing and refuted the allegations that he had resisted arrest, have not been identified or questioned. We ourselves have identified such witnesses, including Mr [M.Ku.], Mr [I.Ma.], and others. The police officers from the Karabulak Town Police Department and the Ingushetia OMON who had arrested the individuals, who shot Mr Apti Dalakov were not questioned. I was not granted victim status either. The failure of the investigating authorities to act violates Article 2 of the European Convention of Human Rights... I request, on the basis of Article 125 of the Russian Criminal Procedure Code that the court ... 1. Declare unlawful the failure of the investigating authorities to initiate a criminal investigation in respect of my complaint, to identify and question witnesses to the killing ... and grant me victim status in the proceedings; 2. Oblige the Karabulak Investigating Committee (1) to remedy the above breaches; (2) to open a criminal case in connection with Mr Apti Dalakov’s killing (3) to grant me victim status in the criminal case (4) to identify and question witnesses to Mr Apti Dalakov’s killing (5) to question officers of the Karabulak Town Police Department and the Ingushetia OMON who arrested those involved in Mr Apti Dalakov’s killing ...” According to the Government, the applicant lodged this complaint on 18 August 2008. The incoming mail registration stamp on the copy of the document indicates that this complaint was received on 14 August 2008. 42. On 18 September 2008 the District Court held a hearing in connection with the applicant’s complaint. According to the transcript of the hearing, both parties were present. During the examination the representative of the investigating authorities submitted that they had transferred the evidence concerning the killing of Mr Apti Dalakov to a military prosecutor’s office. The judge requested that the documents reflecting the transfer be provided for the next hearing, scheduled for 23 September 2008. 43. On 23 September 2008 the District Court examined and rejected the applicant’s complaint as unsubstantiated. The court reasoned as follows: “... [the applicant] M. K. Dalakov ... requested that his complaint be allowed and the refusal to initiate a criminal investigation into his nephew’s killing be declared unlawful ... that the police officers ... who had been present at the crime scene be questioned as witnesses, and that more witnesses to the crime, in addition to the FSB officers who had shot Mr A. Dalakov dead, be identified and questioned. The public prosecutor Mr [A. P.] requested the court to reject the complaint as unsubstantiated. In support of his position he stated that the criminal case related to Mr A. Dalakov’s death had been terminated by the Karabulak Investigating Committee, as the actions of the FSB officers who had carried out the operation in respect of Mr A. Dalakov had been declared lawful. The OMON police officers on whose questioning the applicant insists before the court arrived at the scene later and did not witness Mr A. Dalakov’s killing. No other witnesses were identified. Having been duly informed of the date and place of the hearing, and in the absence of requests for the examination of the case in their absence, both parties failed to appear at the hearing; this does not preclude the court from examining the complaint on its merits. The court finds the applicant’s and his lawyer’s allegations unsubstantiated, as they are not properly argued and are not supported by appropriate evidence. On the basis of the above, under paragraph 5 of Article 125 of the Russian Criminal Procedure Code, the court finds that the complaint of Mr Magomed Dalakov under Article 125 of the Russian Criminal Procedure Code concerning alleged failure of the Karabulak Investigating Committee to act should be rejected ...” 44. According to the Government’s submission, both parties were present during the examination on 18 and 23 September 2008. The applicant, who was represented at the hearing by his lawyer, was provided with a copy of the decision by letter from the court, sent to his address on the same date. The Government provided a copy of that letter without an envelope, bearing the applicant’s address in Karabulak and dated 23 September 2008. 45. According to the applicant’s submission, on 23 September 2008 no examination of the complaint took place and, therefore, he was not informed of any decisions taken on that date and did not receive the decision by post. The applicant stated that prior to the hearing of 23 September 2008 his lawyer had been informed in person that the hearing had been rescheduled for an unspecified date. Subsequently, the lawyer repeatedly enquired with the court by telephone and in person about the examination of the complaint. In reply to his queries he was assured that he would be apprised of the date and venue of the examination. Neither the applicant nor his lawyer was provided with a copy of the decision of 23 September 2008. 46. In the applicant’s submission, the court’s decision allegedly taken on 23 September 2008 was backdated, and had in fact been prepared at a later date. In particular, he pointed out that the text of the decision and the transcript of the hearing allegedly held on that date contained inconsistencies. In particular, according to the transcript, both parties, including the applicant’s lawyer, had been present at the hearing and the delivery of the decision by the judge. However, in the text of the decision of 23 September 2008 it was stated, amongst other things, that neither party had appeared at the hearing (see paragraph 42 above). 47. According to the applicant, on 30 November 2008 his lawyer telephoned the court and was informed that the examination of his complaint had again been rescheduled as the judge had gone on holiday. 48. On 9 April 2009 the applicant wrote to the military investigating department, asking whether they had returned to the town prosecutor’s office the materials concerning Mr Apti Dalakov’s killing (see paragraph 42 above). No reply was given to that request. 49. On 16 April 2009 the applicant’s lawyer complained to the Ingushetia Supreme Court. The text of the complaint included the following: “... M. Dalakov lodged a complaint with the Karabulak District Court ... of inaction on the part of the Investigating Committee of Karabulak. The complaint was assigned for examination to Federal Judge Ms [B]. According to Article 125 of the Russian Code of Criminal Procedure, this complaint should have been examined within five days of its receipt. However, this has not yet been done. I request that you take measures to expedite the examination of the complaint.” No reply was given to this complaint. 50. From the documents submitted it appears that no criminal proceedings against the FSB officers concerning Mr Apti Dalakov’s killing have been initiated to date. | 1 |
test | 001-141635 | ENG | UKR | CHAMBER | 2,014 | CASE OF ALEKSANDR VLADIMIROVICH SMIRNOV v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-c - Defence through legal assistance) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano | 6. The applicant was born in 1981 and lives in the Russian Federation. 7. On 5 December 2002 the applicant was stopped by the police at a bus station in Odessa, Ukraine, and detained in a holding facility for vagrants (приймальник-спецрозподільник) on the grounds that he had no identity documents with him. 8. According to the applicant, he was detained and held alternately in the aforementioned facility and the Kakhovka, Kherson and Mykolayiv police detention facilities until 23 December 2002, and was questioned off the record about his alleged involvement with a terrorist group plotting to instigate a revolt to reinstate a communist state. During those question sessions the applicant was beaten and tortured. 9. According to the documents on file, on 9 December 2002 the applicant was examined by B., a medical specialist of the Odessa holding facility for vagrants, who noted that he had no bodily injuries. Subsequently (on 14 December 2002) the applicant was taken to Kakhovka and placed in the police temporary detention facility, where he stayed until 18 December 2002. On the date of his arrival the applicant was examined by S., a medical expert, who recorded no bodily injuries and noted that the applicant had made no complaints of ill-treatment. 10. On 14 and 15 December 2002 the Kakhovka police questioned the applicant as a witness in connection with unidentified proceedings. During those interviews the applicant explained to the police that he was a member of a Russian-based non-governmental organisation, “Z.”, which advocated rights for political prisoners and propagated communist political views. He and two other members of Z. had been commissioned to come to Ukraine to distribute their newspaper, Soviet rabochikh deputatov, and other materials, participate in public activities organised by opposition political forces in Ukraine, and promote networking with local leftist groups. 11. On 17 December 2002 the applicant participated in a confrontation with V.S., a Kakhovka resident, who confirmed having communicated with the applicant’s associates and having received the Soviet rabochikh deputatov newspaper. 12. On 23 December 2002 the applicant addressed a handwritten statement to investigator V.K. of the Security Service of Ukraine (“the SSU”) in Mykolayiv, in which he confessed, in particular, that he had been distributing the Soviet rabochikh deputatov newspaper and other printed materials in Ukraine and that he, with two other members of the communist movement, of which he was a member, had blown up a rubbish bin near the SSU headquarters in Kyiv in October 2002. 13. On the same date the applicant was arrested in Mykolayiv on suspicion of a terrorist offence and was subsequently remanded in custody following a court order. It appears from the arrest report drafted on 23 December 2002 that the applicant, who had been notified of his right to legal assistance upon his arrest, expressed the wish to consult a lawyer before his first questioning. 14. At about 12.30 p.m. on 24 December 2004 the applicant signed two documents confirming that he understood his rights as a suspect, and also that he wished to consult a lawyer. Subsequently (at about 12.45 p.m.), the applicant signed a statement of consent to be questioned by an SSU officer without a lawyer. During that questioning the applicant reiterated his earlier statements and provided further details concerning his acquaintance and encounters with various activists of the communist movement in Russia and Ukraine. 15. On 26 December 2002 V.V., a lawyer engaged by the applicant’s mother, was admitted to the proceedings as his defence counsel. 16. On 29 December 2002 the applicant was indicted for membership of a terrorist group and participation in a terrorist act. Questioned in V.V.’s presence, the applicant confessed to some of the charges against him. In particular, he confirmed his affiliation with the communist movement and participation in political opposition activities, but denied taking part in the rubbish bin explosion or any terrorist activity. Citing his right to remain silent, the applicant refused to explain why his statements differed from those he had given previously. 17. On 30 December 2002 the applicant requested that V.V. be replaced by N.B., a new lawyer engaged by his mother. This request was granted on the same date. 18. In February 2003 the applicant was transferred to the Odessa no. 21 pre-trial detention facility, as the investigation of the case had been transferred to the Odessa SSU. 19. On various occasions in the spring of 2003 the applicant, with his consent, was questioned in Odessa in the absence of N.B., whose practice was in Mykolayiv. When questioned the applicant sometimes refused to answer questions, citing his right to remain silent, and at other times responded to the questions asked, either confirming or modifying his previous submissions. 20. On 27 May 2003 the investigation was completed, and the applicant, along with ten other individuals implicated in affiliation with a criminal association which had engaged in a number of robberies and other crimes committed on behalf of their organisation with a view to reinstating a communist state, was committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”) acting as a first-instance court. 21. On 24 July 2003 the applicant and his lawyer N.B. signed an affidavit that they had finished studying the case file. On the same date N.B. requested that the case be remitted for a further investigation, alleging that numerous substantive and procedural-law provisions had been breached. He submitted, in particular, that the applicant had been unlawfully detained and tortured between 5 and 23 December 2002, with the aim of extracting self-incriminating statements from him, in breach of his right to mount a defence. 22. On the same date the investigator in charge of the case refused this request. He noted in particular that, as indicated in the materials in the file, the applicant had been arrested only on 23 December 2002, and no investigative activities had been carried out involving him before that date. Nor had he complained of any ill-treatment. 23. The applicant’s trial began in September 2003. 24. During the trial, the applicant pleaded not guilty to all the charges. He admitted that he was acquainted with his co-defendants as members of the pro-communist network and fellow distributors of the Soviet rabochikh deputatov newspaper and various communist propaganda material in Ukraine. At the same time he denied being involved in the rubbish-bin explosion imputed to him, and also denied all knowledge of any involvement by his co-defendants in any type of criminal activity. The applicant also submitted that he had been unlawfully detained between 5 and 23 December 2002, and had made false self-incriminating statements as a result of ill-treatment by the investigating authorities. The medical staff of the detention facilities in which he had been held had refused to record his bodily injuries. He had not lodged any relevant complaints at the beginning of the investigation, as he had feared reprisals. 25. After the death of B., one of the applicant’s co-defendants, during the trial proceedings, the applicant and his co-defendants demanded an investigation of the circumstances of his death, alleging that it had resulted from torture and that they had also been subjected to ill-treatment during the investigation. Following the investigation, the prosecutor’s office reported to the Regional Court that B. had died of cancer and that there had been no ill-treatment case to answer with respect to either the applicant or his co-defendants. 26. On 24 May 2004 the applicant lodged a fresh complaint with the Kakhovka Regional Prosecutor’s Office, alleging that he had been ill-treated by Kakhovka police officers in December 2002. 27. On 22 June 2004 the prosecutor’s office refused to institute criminal proceedings in connection with the applicant’s allegations. It was noted in the text of the relevant decision, in particular, that the officers questioned had acknowledged that the applicant had been detained in their charge from 14-18 December 2002 as an arrestee under investigation. However, those officers had stated that they had neither ill-treated him, nor received any complaints from him concerning ill-treatment by third parties. It was also noted in the decision that the officers’ explanations had been consistent with the explanations by the medical expert who had examined the applicant on 14 December 2002. 28. On an unspecified date, N.B.’s engagement having been terminated, O.K. was appointed as the applicant’s new lawyer. On several occasions the applicant complained in court about O.K.’s performance, offering to replace her with his mother as his lay defence representative and with some other individuals. These requests were refused by the court on the basis of various procedural provisions, the applicant having been instructed to engage a competent licensed lawyer to replace O.K. as a condition for her being dismissed. 29. On 19 July 2004 the Regional Court found the applicant guilty of affiliation with a criminal association plotting reinstatement of a communist state in Ukraine by violent means, distribution of the Soviet rabochikh deputatov newspaper, whose articles were found to propagate the ideas of such a violent revolt, and participation in a terrorist act (the aforementioned rubbish bin explosion). In the text of its judgment, the court referred to an extensive array of evidence, including the applicant’s statements given on 23 and 24 December 2002. The court noted that those statements were consistent with other evidence, and that there was no indication that they had been extracted by ill-treatment or otherwise in defiance of the applicant’s will or in breach of his procedural rights. They therefore had to be preferred over the applicant’s submissions at the trial. Finally, the court sentenced the applicant to eight years’ imprisonment, with effect from 5 December 2002. 30. On 7 September 2004 the applicant lodged a cassation appeal against his conviction, in which he reiterated the submissions he had made during the trial and complained, in particular, that his right to mount a defence had been breached and that the statements he had made at the investigation stage in the absence of a lawyer should be excluded from the evidential basis. 31. On 26 July 2005 the applicant, represented by O.Kh., a new lawyer engaged by his mother, reiterated his position at an oral hearing before the Supreme Court. 32. On the same date the Supreme Court rejected the applicant’s allegations of breaches of his procedural rights, and upheld his conviction for distribution of material promoting violent revolt and participation in a terrorist act. It also confirmed the applicant’s sentence, having, however, dropped the charges of membership of the criminal association. 33. On several further occasions between 2003 and 2007 the applicant and his mother complained to the Ukraine prosecutor’s office and to other authorities that the applicant had been ill-treated by SSU officers and police, as well as by Russian security service officers who had purportedly questioned him in Ukraine concerning criminal acts committed in Russia. The applicant’s and his mother’s attempts to institute formal criminal investigations in connection with these allegations were to no avail. 34. In November 2005 the applicant was transferred to the Slavyanoserbsk no. 60 Correctional Colony (“the Slavyanoserbsk Colony”), where he served his sentence until he was transferred to another detention facility in September 2007. 35. On arrival the applicant was assigned to cell no. 201 in the maximum security unit. 36. According to the applicant, the conditions of his detention therein were incompatible with human dignity. In particular, the cell, which measured some thirty square metres, accommodated from ten to sixteen inmates, confined to it all day except for an hour’s daily exercise in the outside courtyard. Notwithstanding the general prohibition, many inmates smoked in the cell, which was not equipped with artificial ventilation. As a result, the applicant suffered severely from the effects of passive smoking, while the administration refused his requests for transfer to another cell or for installation of an electric fan his mother had offered to provide. Opening a window to let in some fresh air was problematic, particularly in winter, as with the poor heating the temperature in the cell went down to about eight degrees Celsius. In addition, the windows, which had non-transparent panes of glass, barely let in daylight. With only two small electric bulbs, artificial light was also very poor. As a result, it was very difficult to read or write in the cell. The food was also inadequate. To support the applicant’s nutritional needs his mother had to send in regular food parcels, containing such basic products as tea, pasta, cereals and canned meat and vegetables. In support of his allegations, the applicant presented copies of lists of food items sent in by his mother. He also presented copies of his and his mother’s appeals to the prosecutor’s office and other authorities, in which they requested that the applicant be moved to a non-smoking cell or at least that the use of an electric fan be permitted. They also requested that other matters, in particular, the catering, lighting and heating arrangements be inspected and improved. 37. According to the Government, the conditions of the applicant’s detention were fair. In particular, the applicant’s cell, which measured thirty-two square metres, was equipped to accommodate eight inmates only, which ensured sufficient personal space per detainee. It had windows allowing access to daylight and fresh air. It was also equipped with electric light of sufficient brightness, and had artificial ventilation in the sanitary facility. The heating functioned adequately and the temperature in the cell was always between nineteen and twenty-two degrees Celsius. Smoking was allowed only in the courtyards, and meals provided to detainees were sufficient and properly balanced to meet their nutritional needs. Following the applicant’s and his mother’s complaints, the prosecutor’s office had inspected the conditions of the applicant’s detention and found them to be in accordance with applicable domestic regulations. 38. According to the applicant, he was deprived of any medical care during his detention in the Slavyanoserbsk Colony. In particular, in January 2006 he requested a full medical examination, as he was suffering from constant fatigue, periodic pain in the kidney area, oedema, headaches and chest pain. This request received no response. In March 2007 he was also refused treatment for chronic dental decay, as the medical unit lacked funding to obtain the necessary supplies. It was only in May 2007, after his mother had procured the necessary supplies at her own expense, that the applicant received the treatment. In addition, on many occasions the applicant’s mother sent in parcels containing other basic medicines and supplies, such as antiseptics, activated carbon, adhesive plasters and vitamins, purchased at her own expense. 39. According to the Government, the medical assistance available to the applicant in the Slavyanoserbsk Colony was adequate. The applicant underwent a medical check-up upon his arrival and subsequently benefitted from semi-annual (spring and autumn) checkups. Specifically, he received check-ups on 12 November 2005 and 15 March, 14 April and 30 September 2006. During these check-ups the applicant was also X-rayed for tuberculosis screening. In March 2007 the applicant also had blood and urine samples taken for laboratory testing. The results of all these screenings indicated that the applicant’s health was in general satisfactory. 40. The Government also provided records, according to which in March 2007 the applicant had been examined by a dental specialist, who recommended non-urgent treatment for his chronic dental decay, and notified that the appropriate supplies were not available at the Colony’s medical unit at that time. In May 2007, the necessary supplies having been procured by the applicant’s mother, he received the treatment. | 1 |
test | 001-145817 | ENG | RUS | GRANDCHAMBER | 2,014 | CASE OF SVINARENKO AND SLYADNEV v. RUSSIA | 1 | Preliminary objection dismissed (Article 34 - Victim);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);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;George Nicolaou;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Vincent A. De Gaetano | 7. The applicants were born in 1968 and 1970 respectively. The first applicant, Mr Svinarenko, is currently serving a sentence of imprisonment in the Murmansk region. The second applicant, Mr Slyadnev, lives in the settlement of Sinegorye in the Yagodninskiy district of the Magadan region. 8. In 2002 the Far Eastern Federal Circuit Investigation Department of the Investigation Committee at the Ministry of the Interior brought several sets of criminal proceedings against a Mr Grishin. 9. On 24 September 2002 the first applicant was questioned as one of the suspects in those proceedings. On 9 October 2002 he was arrested. In a decision of 12 November 2002 ordering his detention on remand, the Magadan Town Court noted that the crimes he was charged with had been committed during a three-year probation period under a judgment of the Magadan Region Yagodninskiy District Court of 13 April 2001 convicting him of theft and imposing on him a conditional sentence of five years’ imprisonment. It also noted that he had negative references from his place of residence and that he had breached his undertaking to appear before the investigating authority. According to the final charges against the first applicant, he was accused of robbery with violence against Mr A.S. and Mrs T.S. in September 2002 as a member of a gang led by Mr Grishin, and of the illegal acquisition, storage, transportation and carrying of ammunition. 10. On 20 January 2003 the second applicant, who was serving a sentence of imprisonment after his conviction by the Magadan Region Yagodninskiy District Court on 26 July 2002 for negligent infliction of death under Article 109 § 1 of the Criminal Code of the Russian Federation (“the CC”), was questioned as one of the suspects in the proceedings brought against Mr Grishin. On 22 January 2003 he was charged with the following crimes: (i) establishing an armed gang under Mr Grishin’s leadership and participating in the gang’s attacks on citizens from October 2001 to September 2002 – under Article 209 § 1 of the CC; (ii) the robbery in October 2001 of Mr V.B., the director of a private goldrefining company, with the use of weapons and violence endangering life and health and a threat to use such violence, by an organised group, with the aim of misappropriating another’s property of substantial value – under Article 162 § 3 of the CC; (iii) illegal storage and transportation of precious metals (industrial gold allegedly misappropriated from Mr V.B.) of substantial value by an organised group in October 2001 – under Article 191 § 2 of the CC; (iv) extortion (against Mr V.B.) in October 2001 with the aim of obtaining a right to property under the threat of the use of violence, by an organised group – under Article 163 § 3 of the CC; (v) the robbery of Mr Ya.B. in October 2001 with the use of weapons and violence endangering life and health and the threat to use such violence, by a group of persons according to a premeditated plan, by means of illegal entry into a dwelling with the aim of misappropriating another’s property of substantial value – under Article 162 § 3 of the CC; and (vi) illegal acquisition, storage, transfer, transportation and carrying of firearms by an organised group in October 2001 – under Article 222 § 3 of the CC. 11. On 11 April 2003 the Magadan Region Khasynskiy District Court found the second applicant to be eligible, in view of his orderly behaviour and positive references, for early conditional release one year and three months ahead of the term of two years and three months to which he had been sentenced under the Yagodninskiy District Court’s judgment of 26 July 2002. 12. On 24 April 2003 the Magadan Town Court ordered the second applicant’s remand in custody in the criminal proceedings at issue in the present case. It noted, inter alia, that he was accused of grave crimes which had been committed during a three-year probation period under the Yagodninskiy District Court’s judgment of 15 June 2001 convicting him of hooliganism and wilful infliction of grievous bodily harm and sentencing him conditionally to four years’ imprisonment. 13. On 20 May 2003 the investigation was completed and the defence received access to the case file. 14. On 13 August 2003 the Magadan Town Court found that the second applicant had been deliberately delaying the examination of the case file and set a time-limit for the examination at 5 September 2003. 15. On 19 September 2003 the case was sent for trial to the Magadan Regional Court, which held from 16 October to 26 December 2003 a preliminary hearing to decide on numerous requests by the applicants and their two co-defendants concerning the admissibility of the evidence and other procedural issues, as well as to prepare the jury trial requested by the defendants. During this period the hearing was postponed for about four weeks at the co-defendants’ request. 16. As a result of the preliminary hearing, on 26 December 2003 the Regional Court ordered that the case be examined at an open hearing by a jury on 23 January 2004. On that day fewer than twenty candidate jurors appeared before the court instead of the fifty invited and the court, therefore, ordered that another 100 candidate jurors be summoned. 17. On 13 February 2004 a jury was empanelled and sworn in. 18. The Regional Court held about thirty court sessions, during which it decided various procedural issues, such as the replacement of some jurors, the exclusion or examination of certain evidence and the ordering of expert opinions. It examined the evidence, including the testimony of the victims, witnesses and experts, and heard the defendants. The hearing was adjourned for two weeks as one of the defence lawyers could not attend. 19. On 15 June 2004 the prosecution amended one of the robbery charges against the second applicant (concerning Mr Ya.B.) to the lesser charge of “arbitrary unlawful acts” (самоуправство) with the use of violence, under Article 330 § 2 of the CC. 20. On 22 June 2004 the jury found the applicants not guilty. They were released in the courtroom. On 29 June 2004 the Magadan Regional Court delivered a judgment in which they were acquitted and their right to rehabilitation was acknowledged. 21. The co-defendants and the prosecution appealed against the trial court’s judgment. On 7 December 2004 the Supreme Court of the Russian Federation examined the case on appeal and quashed the judgment on the grounds, inter alia, that some of the jurors had concealed information about their family members’ criminal records although they had been obliged to disclose such information to the parties and to the court at the time of their selection; and that the presiding judge had failed to sum up all the evidence in his directions to the jury, in particular failing to sum up the victims’ and witnesses’ statements. The Supreme Court remitted the case to the Magadan Regional Court for fresh examination. 22. On 21 December 2004 the Regional Court received the case file. It adjourned its hearing twice, on 31 January and 7 February 2005, as the second applicant’s lawyer had failed to appear. 23. In a decision of 8 February 2005 the Regional Court imposed on the defendants an undertaking not to leave their place of residence without its authorisation, to appear before it when summoned, and not to obstruct the proceedings. 24. The Regional Court’s decision of the same date to remit the case to the Magadan Regional Prosecutor for the rectification of errors in the indictment was appealed against by the defence and quashed as erroneous by the Supreme Court on 26 April 2005. 25. The hearing before the Regional Court was adjourned on 17 June 2005 as a result of the first applicant’s and a co-defendant’s failure to appear, for unknown reasons. It was adjourned again on 21 June 2005 owing to a co-defendant’s hospitalisation and the impossibility of examining the case in respect of the others in separate proceedings. 26. The hearing resumed on 22 November 2005. On that day, however, fewer than twenty candidate jurors appeared before the court instead of the thirty invited and the court, therefore, ordered that another 100 candidate jurors be summoned. 27. On 6 December 2005 the Regional Court ordered that the applicants and the other two defendants be detained on remand. It noted the applicants’ previous convictions, the serious charges against them, and the fact that during the preliminary investigation and the current trial some of the victims and witnesses had expressed fears of unlawful behaviour by the defendants. In its decision it did not give any details concerning the fears referred to, or the names of the defendants concerned. The applicants’ appeals against the detention order were dismissed by the Supreme Court of the Russian Federation in its decision of 22 February 2006. In upholding the Regional Court’s detention order, the Supreme Court noted that one of the victims, Mr Ya.B., had asked for the case to be examined without his participation as he had been afraid to give evidence in open court. This fear constituted, according to the Supreme Court, a sufficient ground to consider that the defendants did not satisfy the condition of not obstructing the proceedings in order for them to remain free under the previously imposed undertaking not to leave their place of residence. The applicants’ detention was subsequently extended for similar reasons. 28. On 9 December 2005 the jury was empanelled and sworn in and the court held hearings on 12, 20 and 23 December 2005. On the last-mentioned date one of the co-defendants was granted leave to engage a new lawyer. On 27 December his new lawyer failed to appear and the hearing was adjourned until 10 January 2006, 1-9 January being non-working days. The Regional Court continued the examination of the case in January. It ruled on numerous procedural requests by the defence, in particular requests seeking the replacement of the presiding judge and the prosecutor. 29. As the witnesses and victims who lived in Sinegorye had failed to appear at the hearings several times, on 17 January the court ordered them to be brought before it under escort. The hearing was adjourned on 20 January until 27 January and on 26 February until 10 March 2006, pending the execution of that order. 30. The examination of the case continued in February, March, April and May 2006. During this time the hearing was adjourned on a number of occasions for about four weeks in total at the request of jurors who could not participate, and for about a week at the request of one of the defence lawyers, who was ill. On 2 June 2006 the presiding judge declared the examination of the evidence closed. In five sessions in June 2006 the Regional Court heard the parties’ oral argument. It announced a break from 14 July until 3 October 2006 in view of the fact that several jurors were leaving for their summer holidays in central Russia. 31. The hearing resumed on 3 October 2006. Having consulted the parties, the court decided that they would repeat their oral argument. They did so on 6, 12 and 19 October and 2 November 2006. The preparation of questions to be put to the jury then followed. The jury gave its verdict on 17 November 2006. The first applicant was found not guilty and was released in the courtroom. 32. On 5 December 2006, after an examination of the legal issues during the sessions held in November and December, the Regional Court delivered its judgment. The first applicant was acquitted and his right to rehabilitation was acknowledged. The second applicant was convicted of extortion (against Mr V.B.), and “arbitrary unlawful acts” with the use of violence (in respect of Mr Ya.B.), and was sentenced to seven years’ imprisonment (which took into account his 2001 conviction, in respect of which the conditional sentence was revoked). He was acquitted on the remaining charges. His detention on remand was to continue until the judgment took effect. 33. On 6 June 2007 the Supreme Court examined the appeals against the judgment lodged by a co-defendant, one of the victims and the prosecution. It found that the defendants and their lawyers had breached the rules on criminal trials by committing an abuse of their rights, namely, by discussing in the jurors’ presence, despite the presiding judge’s warnings, issues which fell outside the scope of the jurors’ competence. They had also made remarks which did not concern the issues to be decided by the jury and which had been aimed at discrediting the evidence against them, thus creating a negative impression of the victims and the presiding judge, and a positive one of themselves. This was held by the Supreme Court to have unlawfully influenced the jury’s verdict. It was also noted that the jury’s verdict had not been entirely clear as some of the answers to the questions put to them had been contradictory. The Supreme Court quashed the judgment and remitted the case to the Regional Court for a fresh examination. It also ordered that the second applicant remain in custody. 34. In August 2007 the first applicant was detained on remand in connection with an unrelated set of criminal proceedings brought against him on suspicion of an extortion allegedly committed in 2002. 35. On 4 September 2007 the Magadan Regional Court received the case file and opened the proceedings. On 5 October 2007 fewer than twenty candidate jurors appeared before the Regional Court instead of the 100 invited and the court, therefore, ordered that another 150 candidate jurors be summoned. 36. On 2 November 2007 the selection of the jurors began. However, after a number of candidate jurors refused to sit in the case, the number available was still insufficient and the court ordered that another 150 candidate jurors be summoned. The same situation occurred on 22 November 2007. 37. The number of candidate jurors who appeared before the Regional Court was again insufficient on 11 December 2007 and 17 January 2008, necessitating the summoning of an additional 200 and 250 persons respectively. 38. A jury, composed of twelve jurors and two substitute jurors, was empanelled on 5 February 2008 from thirty-four candidate jurors who had appeared before the court, and the trial commenced. The court held five or six sessions monthly from February to June 2008, two sessions in July, four in August (after a break for the jurors’ holidays from 1 July to 18 August), eleven in September, six in October, ten in November and four in December 2008. Some of the sessions were held without the jury as they concerned various procedural issues, including the admissibility of evidence and requests for the examination of the evidence before the jury. The court examined the vast body of evidence, including the testimony of more than seventy victims and witnesses, and numerous expert reports. 39. For about a month the trial was delayed because a co-defendant was ill. Some delay was caused by difficulties in ensuring the appearance of some of the victims and witnesses, who resided in remote settlements in Burkhala and Sinegorye, or who had moved to the central and other parts of the country. 40. On 13 February 2009 the Regional Court started hearing the parties’ oral argument. 41. On 7 March 2009 the jury returned a “not guilty” verdict in respect of the first applicant. It found the second applicant guilty of “arbitrary unlawful acts” and not guilty on the remaining charges. 42. On 12 March 2009 the Regional Court ordered the second applicant’s release on an undertaking not to leave his place of residence and to behave in a law-abiding manner. 43. On 19 March 2009 it delivered its judgment, acquitting the first applicant and finding, in respect of the second applicant, that on 11 October 2001 he, Mr Grishin and Mr N.G. (against whom the criminal proceedings were terminated owing to his death) had requested Mr Ya.B. to repay a debt in the amount of 100,000 Russian roubles (RUB); following Mr Ya.B.’s refusal Mr Grishin and Mr N.G. had beaten him up; the second applicant had beaten up Mr S.K., who had witnessed Mr Ya.B.’s beating; they had then taken Mr Ya.B. to his home and Mr Grishin had taken money from him in the amount of RUB 247,000. 44. The Regional Court noted that there had been mixed references in the materials of the case about the second applicant, who had been characterised negatively by the local authority and by a district police officer at the place of his residence, and positively by the administration of a detention facility, in which he had been detained on remand, and by the administration of a prison in which he had served his sentence after a previous conviction. 45. The Regional Court convicted the second applicant, under Article 330 § 2 of the CC, of “arbitrary unlawful acts” with the use of violence, sentenced him to two years and ten months’ imprisonment, revoked the conditional sentence under his 2001 conviction as the new crime had been committed during the probation period, and, after adding the revoked conditional sentence, sentenced him to a total of four years and five months’ imprisonment; it discharged him from serving the sentence in the part relating to the conviction under Article 330 § 2 as liability for the relevant offence had become time-barred, and found that he had served his sentence in the remaining part in view of his detention on remand from 24 April 2003 to 22 June 2004 and from 6 December 2005 to 12 March 2009, which amounted to four years, five months and six days in total. It acquitted him on the remaining charges. 46. As of 19 March 2009 the first applicant was still detained in connection with unrelated criminal proceedings against him (see paragraph 34 above). 47. On 23 July 2009 the Supreme Court dismissed an appeal by a codefendant and the prosecution and upheld the judgment. 48. During the applicants’ detention on remand they were taken to the Magadan Regional Court from their detention facility by police guards. During the hearings they sat on a bench enclosed on four sides by metal rods 10 millimetres in diameter. The enclosure was 255 centimetres long, 150 centimetres wide and 225 centimetres high, with a steel mesh ceiling and a door, also made of metal rods. The distance between the metal rods was 19 centimetres. 49. Armed police guards remained beside the caged dock. There were always two police guards per detainee – eight police guards in total during the first and second trials and six police guards for the applicants and one of their co-defendants during the third trial. 50. After the first applicant’s acquittal had become final he brought proceedings against the State for damage suffered as a result of the criminal proceedings against him. 51. On 23 October 2009 the Magadan Regional Court awarded him RUB 18,569 in respect of pecuniary damage, representing an unemployment allowance that had not been paid as a result of his detention on remand. On 17 December 2009 the Supreme Court of the Russian Federation upheld the Regional Court’s judgment. 52. On 1 March 2010 the Magadan Town Court awarded the first applicant RUB 50,000 in respect of non-pecuniary damage incurred by him as a result of his criminal prosecution, the imposition on him of an undertaking not to leave his place of residence and his detention on remand from 9 October 2002 to the moment of his release, following the first “not guilty” jury verdict of 22 June 2004 and from 6 December 2005 until 17 November 2006. The applicant appealed against the judgment arguing, inter alia, that the amount awarded to him was not just or reasonable. On 30 March 2010 the Magadan Regional Court dismissed the applicant’s appeal and upheld the Town Court’s judgment. | 1 |
test | 001-173371 | ENG | RUS | COMMITTEE | 2,017 | CASE OF SEROV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) | Branko Lubarda;Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-155827 | ENG | EST | CHAMBER | 2,015 | CASE OF TOLMACHEV v. ESTONIA | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance) | Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1990 and lives in Narva. 6. On 17 September 2012 the applicant, in misdemeanour proceedings, was fined 80 euros (EUR) by a police officer of the East Prefecture of the Police and Border Guard Board for a breach of public order (breaking a glass panel of a bus shelter). 7. The applicant contested this decision before the Viru County Court. He argued that he had not committed the act in question and challenged the assessment of witness statements. He complained about the failure of the police to present him to a witness for identification. Lastly, he complained that the police had not indicated in its decision the specific provisions of the local rules on public order which he had allegedly breached. 8. The County Court sent summons to the applicant for a hearing scheduled for 21 March 2013 at 12.30 p.m. It was noted in the summons that the applicant’s participation in the hearing was mandatory. Furthermore, it was noted, with reference to Article 126 § 2 of the Code of Misdemeanour Procedure (Väärteomenetluse seadustik), that if a complainant failed to appear at the hearing, although he had been notified of the obligation to participate, and the hearing was not adjourned, the court would refuse to examine the complaint. The applicant’s counsel, a representative of the police prefecture and witnesses were also summoned. 9. The summons sent to the applicant’s address, which he had used throughout the proceedings and which had been indicated in his complaint, could not be served on him personally as he was not present on 4 February 2013 when the court’s security officer attempted to serve the summons. His mother refused to accept the summons and said that the applicant was living abroad. The applicant’s counsel received the summons on 8 February 2013. The witnesses also received the summons in the beginning of February. 10. On 20 March 2013 the County Court issued a ruling by which the applicant’s complaint was admitted for the proceedings. According to the ruling the hearing was scheduled for 21 March 2013 at 12.30 p.m. and the names of persons to be summoned to the hearing were set out. 11. On 21 March 2013 the County Court held its hearing. The applicant did not appear. His counsel asked the court to examine the matter without the applicant’s presence as the applicant was abroad and it was not known when he would return to Estonia. According to the applicant’s father, who was in the courtroom as a spectator, the applicant was not to return to Estonia within the next five years. The County Court refused to examine the applicant’s complaint. It delivered its decision in writing on 2 April 2013. 12. According to the County Court’s decision, the applicant had failed to inform the authorities of his new address. However, as the applicant’s father was aware of the time of the court hearing and of the applicant’s intention not to return to Estonia within the next five years, the court concluded that the applicant’s parents were communicating both with the applicant and his counsel. Thus, the applicant must have been aware of the court hearing and summons sent to him. 13. The County Court found that in view of the substance of the misdemeanour case and the court’s duty to hear a misdemeanour matter in its entirety, regardless of the limits of the complaint filed, and to verify the factual and legal circumstances on the basis of which the body conducting the extra-judicial proceedings (that is, the police) had made its decision, it was not possible to examine the case without the applicant’s participation. It noted that one of the complaints made by the applicant had been that the body conducting the extra-judicial proceedings had not presented the applicant for identification to the witness. Thus, interviewing of the applicant and presenting him for recognition to the witness were important steps for the adjudication of the matter which could not be accomplished without the applicant’s participation. The court considered that adjourning the hearing would serve no purpose since the applicant was not to return to Estonia within a month – the time-limit for which a hearing could be adjourned under the law of procedure. Moreover, the applicant’s counsel had not requested an adjournment but examination of the complaint without the applicant’s presence. However, for the above reasons the court did not consider it possible to examine the case without the applicant. Relying on Article 126 § 2 of the Code of Misdemeanour Procedure – which provided that if a complainant failed to appear at the hearing although he had been notified of the obligation to participate in the court hearing – the County Court refused to examine the complaint. 14. The applicant’s counsel appealed, relying, inter alia, on Article 6 § 3 (c) of the Convention according to which a person had the right to defend himself through legal assistance of his own choosing. The receipt of the summons was not disputed. 15. On 23 May 2013 the Tartu Court of Appeal dismissed the appeal and upheld the ruling of the first-instance court. It noted that under Article 126 § 1 of the Code of Misdemeanour Procedure the court could decide on a discretionary basis whether a complainant’s participation in the court hearing was necessary and, if needed, oblige the person in question to appear. In the case at hand the County Court had given reasons as to why the applicant’s participation was required and it was not possible to examine the case in his absence. The Court of Appeal pointed out that the applicant had challenged in his complaint to the County Court the failure of the police to present him to witnesses for identification. It was, however, unclear, how the County Court could have eliminated this deficiency in the applicant’s absence. 16. No appeal lay against the Court of Appeal’s ruling. | 1 |
test | 001-147871 | ENG | TUR | CHAMBER | 2,014 | CASE OF DURMAZ v. TURKEY | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The applicant was born in 1955 and lives in İzmir. 6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. The applicant’s daughter, Gülperi O., worked as a nurse at the Aegean University Hospital in İzmir. She was married to O.O., who worked in the pharmacy at the same hospital. 8. According to the applicant, the couple had frequent rows and O.O. used violence against Gülperi O. on a number of occasions. 9. At 5.30 p.m. on 18 July 2005 O.O. brought Gülperi O. to the accident and emergency department of the Aegean University Hospital and told the doctors and nurses at the hospital that she had taken an overdose of two medicines called “Prent” and “Muscoril”. 10. A police officer at the hospital took a statement from O.O. at 6.45 p.m. In his statement O.O. was reported as having stated that he and Gülperi O. had had a row earlier in the day; she had attacked him and he had hit her. He had then left home and some time after his return at 3.00 p.m. Gülperi O. had felt unwell. He had then brought her to the hospital. 11. It was stated in a report prepared by police officers that a police officer had spoken to the prosecutor over the telephone at 6.50 p.m. and that the prosecutor had instructed that police officer to question Gülperi O. and her husband, O.O. 12. At the time of her admission to the hospital, Gülperi O. was conscious but drowsy. Doctors and nurses, who had been informed about O.O.’s assertion that she had taken an overdose of the two medicines, pumped her stomach. When her pulse slowed down the doctors unsuccessfully tried to resuscitate her. Gülperi O. died at 10.10 p.m. 13. The doctor and the prosecutor who subsequently examined her body were unable to establish the cause of death and they decided, in view of the fact that the deceased’s husband, O.O., had told the police officers that he had hit her, that a post-mortem examination was necessary. 14. The post-mortem examination was carried out the following day and samples taken from Gülperi O.’s body were sent for forensic analysis. 15. On 20 July 2005 the police prepared a report summing up their inquiry. It was stated in this report that Gülperi O. had committed suicide by taking an “overdose of medicines”. 16. On 22 July 2005 the applicant’s husband, Mr Elaattin Kanter, lodged an official complaint with the İzmir prosecutor against O.O., and alleged that O.O. had been responsible for the death of his daughter. Mr Kanter stated in his complaint petition that O.O. had beaten Gülperi O. up on a number of occasions and, as a result, she had been thinking of divorcing him. However, O.O. had apologized and had persuaded her to change her mind by promising to her that he would not be violent towards her again. Mr Kanter informed the prosecutor that Gülperi O. had telephoned her sister during the afternoon of the day of her death, and that they had had a normal conversation; she had not been suicidal at all. 17. Mr Kanter alleged that O.O. had forced Gülperi O. to take the medicines and had subsequently dumped her body at the hospital. The family had heard nothing from O.O. since that date and he had not even attended the funeral. 18. On 25 July 2005 the İzmir prosecutor questioned the applicant and her husband. The applicant told the prosecutor that O.O. had beaten up her daughter before and that as a result she had had to be hospitalised twice with suspected head injuries. Mr Kanter told the prosecutor that his daughter had never been suicidal and that in his opinion O.O. had been responsible for her death. 19. On 29 July 2005 police officers forwarded photographs of Gülperi O.’s body to their head office with a covering letter stating “...find attached photographs of Gülperi O. who committed suicide by taking an overdose of medicines”. 20. Also on 29 July 2005 the İzmir prosecutor questioned the hospital personnel who had been on duty on the day in question and had tried to resuscitate Gülperi O. A doctor told the prosecutor that O.O. had told him that Gülperi O. had taken “Muscoril” and “Prent”. 21. On 19 December 2005 the İzmir prosecutor informed the Registry Office for births, marriages and deaths that Gülperi O. had taken an overdose on 18 July 2005 and had killed herself and that her death could be entered in the records. 22. According to a report drawn up by the Forensic Medicine Institute on 30 December 2005, no medicines, other drugs or alcohol had been found in the blood and other bodily samples taken from Gülperi O.’s body. 23. On 30 January 2006 the Forensic Medicine Institute published its report on the post-mortem examination and other forensic examinations carried out on the samples taken from Gülperi O.’s body. According to the report, there was advanced oedema in her lungs and there were no drugs or other foreign substances in her body. The cause of death was established as “acute alveolar swelling and intra-alveolar haemorrhage” in the lungs. 24. On 13 February 2006 the İzmir prosecutor in charge of the investigation sent a letter to the Forensic Medicine Institute and asked whether suicide or some form of illness could have been the cause of death. 25. In its response to the İzmir prosecutor the Forensic Medicine Institute confirmed on 24 February 2006 that there had been no foreign substances or medicines ‒ including “Prent” and “Muscaril” (see paragraph 9 above) ‒ in Gülperi O.’s body. The Institute also stated in its letter that, should the judicial authorities conclude that Gülperi O. had committed suicide by taking an overdose, then those judicial authorities should also conclude that the medicines she had used were of a type which could not be detected in forensic examinations of samples taken from internal organs. 26. On 28 February 2006 the İzmir prosecutor decided to close the investigation. In the decision the prosecutor stated that “the post-mortem report of 30 January 2006 states that Gülperi O. died as a result of lung complications caused by medicinal intoxication”. In the opinion of the prosecutor, Gülperi O. had committed suicide because she had had an argument with her husband. 27. On 4 April 2006 the applicant lodged an objection with the Karşıyaka Assize Court against the prosecutor’s decision. The applicant drew the Assize Court’s attention to the prosecutor’s failure to question O.O., despite the fact that by his own admission he had beaten Gülperi O. up on the day of her death. She also argued that the prosecutor’s conclusion that her daughter had committed suicide by taking an overdose ran contrary to the conclusions set out in the two reports issued by the Forensic Medicine Institute. She added that the prosecutor had not visited the flat where Gülperi O. used to live with O.O., even though they had informed the prosecutor that the flat had been a mess and that windows had been broken. She alleged in her petition that the prosecutor had accepted from the outset that Gülperi O. had committed suicide and that that had been the reason why she had not conducted an investigation into the allegations brought to her attention. 28. On 20 June 2006 the applicant and her husband, assisted by a lawyer, submitted another petition to the Assize Court in which they set out additional arguments in support of their request for the prosecutor’s decision to be set aside. 29. The objection was dismissed by the Karşıyaka Assize Court on 11 July 2006. The Assize Court considered that the prosecutor’s decision had been correct and in accordance with domestic law and procedure. 30. When notice of the application was given to the respondent Government, the Court asked the Government ‒ pursuant to the parties’ duty to cooperate with the Court under Article 38 of the Convention ‒ to invite the Forensic Medicine Institute to prepare a report, based on the above-mentioned existing medical reports and the prosecutor’s decision of 28 February 2006, and to render an expert opinion as to whether there exist medicines which cannot be detected in forensic examinations of samples taken from internal organs and which could nevertheless have caused the fatal lung problems. The Government were also asked, should the Institute’s answer be in the negative, to invite the Institute to elaborate, on the basis of the documents in the investigation file, on the cause of the lung problems which, according to the report of 30 January 2006, caused the death. 31. The Government complied with that request and submitted to the Court two reports prepared by the Forensic Medicine Institute on 16 April 2013 and 15 July 2013. 32. In these two reports, three experts working for the Forensic Medicine Institute confirmed that the samples taken from Gülperi O.’s body had been checked against the list of known substances in their database ‒ including the two medicines named specifically by Gülperi O.’s husband, O.O. (see above in paragraph 9) ‒ and stated that she had not died as a result of having taken any of those substances. It was also stated in the report that the possibility could not be completely ruled out that she might have taken another toxic substance which was not in their database. 33. The experts at the Forensic Medicine Institute also stated in their reports that they did not agree with the conclusion reached in the autopsy report of 30 January 2006, namely that Gülperi O. had died as a result of “acute alveolar swelling and intra-alveolar haemorrhage” in the lungs. In their opinion, the “acute alveolar swelling and intra-alveolar haemorrhage” was a histopathological finding often caused by anoxia (total oxygen depletion), and could thus not be stated as the cause of death. In the opinion of the three experts, it should have been stated in the autopsy report of 30 January 2006 that the cause of Gülperi O.’s death could not be established. | 1 |
test | 001-182851 | ENG | RUS | CHAMBER | 2,018 | CASE OF AGARKOVA v. RUSSIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 5. The applicant was born in 1945 and lives in Kaliningrad. 6. On 17 January 2007 the applicant’s son, Mr Pavel Agarkov, was taken to the Kaliningrad Emergency Hospital (больница скорой медицинской помощи г. Калининграда) with a severe head trauma. He lapsed into a coma a week later, and died on 1 February 2007. 7. On 5 February 2007 the Moskovskiy District Prosecutor’s Office of Kaliningrad (“the District Prosecutor’s Office”) received a pre-investigation inquiry file containing evidence of the elements of a crime under Article 111 § 4 of the Criminal Code (intentional infliction of serious bodily harm causing the victim’s death). 8. The pre-investigation inquiry established that at about 5 a.m. on 17 January 2007 the applicant’s son had started a fight with a certain V. In the course of the fight the applicant’s son had inflicted several blows on V. with a wooden baseball bat. On the third blow the bat had struck a wall and had broken into two pieces. The applicant’s son had continued to beat V. with his bare hands and kick him with his feet. V. had then managed to pick up a fragment of a broken bat and had hit the applicant’s son several times on the head, causing the latter the physical injuries that resulted in his death on 1 February 2007. 9. On 15 February 2007 an investigator of the District Prosecutor’s Office issued a decision refusing the institution of criminal proceedings against V., being of the opinion that V. had acted in necessary self-defence. 10. On 26 February 2007 the District Prosecutor set aside the above decision. Criminal proceedings into the death of the applicant’s son were instituted on the same day (criminal case no. 030292/07). 11. On 7 March 2007 V. confessed to having inflicted on the applicant’s son bodily injuries which caused his death. On the same day a preventive measure in the form of an undertaking not to leave the town and to behave properly was imposed on him. 12. On 14 March 2007 V. was charged with homicide committed as a result of exceeding the limits of necessary self-defence (Article 108 § 1 of the Criminal Code). He was questioned as an accused and fully acknowledged his guilt in relation to the actions with which he was charged. 13. On 19 March 2007 two fragments of the baseball bat were seized and examined by the investigator. 14. On 22 March 2007 the applicant was admitted to the proceedings as an aggrieved party. She was questioned by the investigator the same day, but could not submit any information regarding the circumstances of her son’s death. During her additional questioning as a victim on 7 April 2007 she stated that her son had told her that he had been beaten by police officers from the Moskovskiy District Department of the Interior of Kaliningrad (ОВД Московского района г. Калининграда). 15. The investigation established that on 17 January 2007 officers from the Moskovskiy District Department of the Interior of Kaliningrad had arrived at the scene of the incident in order to stop a disturbance of public peace caused by the applicant’s son’s unlawful actions. Upon his arrival at the police station the police officers, having assessed the victim’s medical condition as critical, called an ambulance for him. 16. On 6 April 2007 during an on-site verification of his testimony, V. demonstrated with the help of an assistant and an improvised object how the applicant’s son had struck him with a wooden baseball bat, how this bat had broken when it struck the wall, and how he had afterwards inflicted several blows on the applicant’s son’s head with a fragment of this bat. 17. On 23 April 2007 the forensic medical examination was carried out, establishing that the applicant’s son’s death had been caused by an open blunt traumatic brain injury accompanied by contused head wounds and bruises, haemorrhages in the soft tissues of the head, fractures of the skull bones, haemorrhages above and under the layers of mater, complicated by brain oedema and compression (forensic medical report no. 39/696). 18. On 10 May 2007 the District Prosecutor approved the bill of indictment and referred the case to the Moskovskiy District Court of Kaliningrad (“the District Court”) for examination on the merits. 19. On 22 October 2007 the District Court returned the criminal case to the Prosecutor for re-drafting of the bill of indictment and remedying of deficiencies that prevented examination of the case, in particular, the formulation of exactly how V.’s actions had exceeded the limits of necessary self-defence. 20. On 29 December 2007 the chief investigator from the Kaliningrad investigative division of the Investigation Department of the Investigative Committee at the Russian Federation’s Prosecutor’s Office for the Kaliningrad Region (“the Kaliningrad investigative division”) discontinued the criminal proceedings, having arrived at the conclusion that the injuries resulting in the death of the applicant’s son on 1 February 2007 had been inflicted by V. as actions of necessary self-defence. The decision was not supported by reference to any evidence. 21. On 18 January 2008 the Deputy Head of the Kaliningrad investigative division set aside the above decision and ordered a fresh investigation. 22. Subsequently, between 23 February 2008 and 29 October 2009 the criminal proceedings were discontinued and resumed on nine occasions. Three of the decisions, namely those of 23 February, 23 May and 30 June 2008, repeated word for word the previous decision of 29 December 2007. The following six decisions, namely the decisions of 22 November 2008 and 8 January, 20 February, 15 July, 29 August and 29 October 2009, reached the same conclusion, relying on: - forensic medical report no. 39/696 of 23 April 2007 (see paragraph 17 above); - statements by V. submitting that on 17 January 2007 he had had a fight with the applicant’s son and had administered to the latter at least two blows to the head with a piece of broken baseball bat, following which he had called the police, who had taken the applicant’s son to the police station; - statements by witnesses T. and P. who were present at the scene of the fight and confirmed V.’s statements; - statements by police officer Erk, who arrived at the scene and saw the applicant’s son squatting down, with blood streaming from his head and a bruise below his eye; he submitted that the applicant’s son, V., T. and P. had been taken to the police station, following which an ambulance had been called for the applicant’s son as his head was bleeding; no violence had been used against the latter; - statements by duty officer Tr., who had received information about the fight and had seen the applicant’s son brought to the police station in a state of alcoholic intoxication, with a lacerated wound in the region of one eye and several abrasions, following which an ambulance had been called to take him to hospital; he submitted that nobody in his presence had subjected the applicant’s son to any beatings; - similar statements by duty officer Ser.; - statements by operative agent Mir., who saw the applicant’s son at the police station with injuries to his body; he submitted that he had not seen anybody beating the applicant’s son at the police station; - statements by witness F., who arrived at the police station having been told that the applicant’s son had been taken there; however, she had then been informed that the latter had been taken to hospital to be treated for his injuries; she further submitted that in the hospital the applicant’s son told her that he had been beaten up by the police in the entrance to V.’s house; - statements by witness G., who had accompanied the applicant’s son in his car to the scene of the fight; he submitted that the applicant had told him that he had a score to settle with a man called “Erik” who had cooperated with the police; he had seen the applicant’s son knock on a window and enter the building with a baseball bat in his hands; about fifteen minutes later he had seen the police arrive at the exit from the building; the applicant’s son had been walking unassisted, he had not been handcuffed, but had been holding his head; one of the police officers had been holding a plastic bag containing two fragments of the baseball bat; the applicant’s son had got into the police car and been taken to the police station; he had not seen anybody hitting the applicant’s son or threatening him; - statements by the applicant, who submitted that her son had told her that he had been beaten up by the police; - statements by witness Min., who had heard about the fight from V.; - statements by witness Mot., who had heard about the fight from T.; - statements by neighbours Sukh. and Tishch., who knew nothing about the events in question; - statements by witness Gor., the applicant’s son’s partner, who had been told by the applicant’s son that he had been beaten by the police; - statements by witness Ven., who was receiving treatment in the hospital at the time when the applicant’s son was admitted and who submitted that the latter had told him that he had sustained the injuries through being beaten with a baseball bat; - the police station’s registration log, which contained no mention of the applicant’s son being arrested on the 17 January 2007; - expert report no. 366, according to which V. had an abrasion on his right forearm which could have been caused on 17 January 2007 by a blow from a hard blunt object; - expert report no. 250 on the examination of a sample of the applicant’s son’s skin from the left half of the parietal region of the head containing well-defined diffuse microinclusions of iron; - expert report no. 52 of 2 July 2008 stating that the applicant’s son’s open blunt brain injury had been caused by a combination of traumatic impacts in the region of the head which could have resulted from the circumstances described by V., that is to say by the infliction of multiple blows by a baseball bat fragment in the region of the head. 23. In the meantime, the applicant repeatedly challenged the adequacy of the investigation alleging the involvement of police officers in the death of her son. In particular, she complained about the failure of the investigator to inform her of the decisions taken in the case and to explain the possible avenues for appeal. She further complained about the refusal of her requests for information about the exact time when V.’s call was registered at the police station, the exact time when her son was brought to the police station and when the ambulance was called for him. The applicant also sought to have clarified the reasons why her son had not been questioned about the circumstances of the incident during the week before he lapsed into a coma, to obtain an expert examination of the bloodstains on his clothes which could have clarified whether he had been standing up or lying down when he sustained his injuries, and an expert examination which could have clarified the origin of metal particles found in the wounds of her son. 24. In response to her complaints, the District Court on 18 August, 5 September, 26 September and 12 December 2008 found the investigator’s refusals and lengthy inactivity unlawful and unjustified and ordered him to remedy the above deficiencies by conducting a thorough and comprehensive investigation. 25. On 16 December 2008 the applicant’s son’s clothes were seized from the applicant for expert examination. 26. On 14 September 2009 the District Court found the investigator’s inactivity unlawful, having noted that when taking the decision of 15 July 2009 the investigator had failed to comply with his own ruling of 10 July 2009 granting the applicant’s requests. 27. On 13 January 2010 the Deputy Head of the Investigative Committee at the Russian Federation’s Prosecutor’s Office for the Kaliningrad Region set aside the decision of 18 January 2008 (see paragraph 21 above) as having been taken in violation of the criminal procedure. As a result, all the evidence obtained after 18 January 2008 was found inadmissible. 28. On 15 January and 22 January 2010 forensic biological and forensic trace examinations of the applicant’s son’s clothes were ordered, which duly established that the latter had been in an upright position, or close to such a position, when the bloodstains appeared on his clothes (report no. 32 of 12 February 2010). 29. On 22 January 2010 a forensic medical examination by an expert commission was ordered. The examination established that the open blunt traumatic brain injury inflicted on the applicant’s son had been caused by at least five traumatic impacts, and that it could have arisen in the circumstances indicated by the accused V. during his questioning on 7 March 2007 and the on-site verification of his testimony on 6 April 2007 (see paragraphs 11 and 16 above) (report no. 13 of 9 February 2010). 30. On unspecified dates the applicant and the witnesses were questioned for a second time and confirmed their previous statements. 31. Between 14 February 2010 and 21 February 2012 the criminal proceedings were discontinued on five occasions on the grounds of absence of the constituent elements of a crime under Article 108 § 1 of the Criminal Code in the actions of V., and were subsequently resumed. 32. On 4 May 2012 the District Court found the decision of 21 February 2012 unlawful and unsubstantiated. The District Court also found unlawful the investigator’s failure to notify the applicant of the procedural decisions taken in reply to her requests. 33. On 6 July 2012 the acting head of the Moskovskiy District of the Kaliningrad investigative division set aside the decision of 21 February 2012. 34. On 6 August 2012 the investigator for the Moskovskiy District from the Kaliningrad investigative division discontinued the criminal proceedings. The decision noted that the investigation had identified the constituent elements of a crime under Article 108 § 1 of the Criminal Code in the actions of V. However, since the crime belonged to the category of minor crimes and had been committed over two years earlier, in 2007, V. was to be exempted from criminal liability pursuant to Article 78 § 1 (a) of the Criminal Code (exemption from criminal liability due to expiration of statutory time-limits for criminal prosecution). 35. On 5 December 2012 the acting head for the Moskovskiy District of the Kaliningrad investigative division took the decision to resume the proceedings in view of the necessity of conducting psycho-physiological expert examinations − using a polygraph − of the police officers who had brought the applicant’s son to the police station so as to verify the veracity of their statements. 36. According to information contained in the case file, the proceedings were still pending in December 2012. 37. The case file contains no information regarding further developments in the investigation of the circumstances surrounding the applicant’s son’s death. 38. On 28 December 2007 the applicant sought the institution of criminal proceedings against the police officers allegedly involved in the death of her son. 39. On 6 June 2008 the chief investigator of the Kaliningrad investigative division issued a decision refusing the institution of criminal proceedings against officers Erk., K., Tr. and Ser. of Kaliningrad’s Moskovskiy District Department of the Interior under Articles 285 and 286 of the Criminal Code (abuse of power by an official, actions of a public official which clearly exceed his or her authority). 40. On 14 July 2008 the Deputy Head of the Kaliningrad investigative division set aside the above decision and ordered a fresh pre-investigation inquiry. In particular, the investigator was instructed to assess the actions of the police officers under Articles 125 (leaving without help a person in danger) and 306 (knowingly false accusation) of the Criminal Code. 41. On 24 July 2008 the investigator of the Kaliningrad investigative division again issued a decision refusing the institution of criminal proceedings against officers. 42. On 26 September 2008 the District Court found the above decision unlawful. The District Court established that no fresh inquiry had been conducted and that the instructions given in the decision of 14 July 2008 had not been complied with. 43. On 18 November 2008 the Kaliningrad Regional Court (“the Regional Court”) upheld the decision of 26 September 2008 on appeal. 44. On 8 February 2010 the Kaliningrad investigative division’s investigator refused to open criminal proceedings against the police officers under Articles 125, 285 and 286 of the Criminal Code on the grounds that the constituent elements of a crime were absent in their actions. 45. On 19 August 2010 the District Court found the above decision lawful. The applicant did not appeal. 46. On 25 December 2008 the applicant brought civil proceedings against the Ministry of Finance seeking compensation in respect of nonpecuniary damage caused to her by the failure of the domestic authorities to investigate her son’s death. 47. On 31 March 2009 the Tsentralniy District Court of Kaliningrad dismissed the applicant’s claims. 48. On 20 May 2009 the Kaliningrad Regional Court upheld the judgment on appeal. | 1 |
test | 001-178501 | ENG | BIH | CHAMBER | 2,017 | CASE OF KUNIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA | 3 | 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);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - General measures);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani | 5. By a judgment of the Zenica Cantonal Court of 5 February 2007, three judgments of the Tešanj Municipal Court of 30 July 2008, 31 March 2008 and 15 May 2009 and a judgment of the Zenica Municipal Court of 26 April 2007, which became final on 5 February 2007, 18 August 2008, 23 March 2009, 25 June 2010 and 27 March 2008, respectively, the Zenica-Doboj Canton (Zeničko-dobojski kanton; one of the ten cantons of the Federation of Bosnia and Herzegovina) was ordered to pay the applicants different sums in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs. 6. The writs of execution issued on 2 March 2007, 5 April 2010, 2 March 2010, 14 December 2010 and 24 June 2008, respectively, by the Zenica Municipal Court and the Tešanj Municipal Court, were transferred to the competent bank and were listed among the charges on the debtor’s account. 7. On several occasions thereafter the bank informed the competent courts that enforcement was not possible because the budgetary funds intended for that purpose had already been spent. 8. On 12 July 2008 the first applicant, Mr Suljo Kunić, complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). 9. On 12 October 2011 (decision no. AP 2110/08) the Constitutional Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in Mr Suljo Kunić’s and ten other cases on account of the prolonged non-enforcement of the final judgments in the appellants’ favour. It ordered the government of the Zenica-Doboj Canton to take the necessary steps in order to secure the payment of the cantonal debt arising from the final judgments within a reasonable time. The relevant part of the decision reads as follows: “39. ... The court notes that the judgments [in favour of the appellants] have not been enforced due to the lack of funds on the debtor’s bank account. ... 45. The Constitutional Court reiterates that under the Constitution of Bosnia and Herzegovina and Article 1 of the European Convention all levels of government must secure respect for individual human rights, including the right to enforcement of final judgments under Article 6 § 1 of the Convention and the right to property under Article 1 of Protocol No. 1 to the Convention ... The scope of that obligation is not reduced in the present case, notwithstanding the large number of judgments... [T]he Constitutional Court notes that in Jeličić v. BiH, and again in Čolić and Others v. BiH, the European Court of Human Rights reiterated that ‘it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1’ ... 46. The Constitutional Court agrees with the position taken by the European Court ... it is nevertheless aware of the effects the global economic crisis had on Bosnia and Herzegovina ... The court notes that the federal and the cantonal governments had taken certain steps with the view to enforcement of final court decisions. Section 138 of the Federal Enforcement Procedure Act 2003 provides that the final judgments against the Federation and the cantons shall be enforced within the amount of budgetary funds designated for that purpose ... and that the creditors shall enforce their claims in the order in which they acquired the enforcement titles ... In 2010 and 2011 the amount of funds for that purpose in the budget of the Zenica-Doboj Canton was 100,000 convertible marks. ... 48. The court finds that the crux of the problem in the present case is that the Zenica-Doboj Canton did not identify the exact number of unenforced judgments and the aggregate debt ... without which it is impossible to know when all the creditors will realise their claims against this canton. Furthemore, there should exist a centralised and transparent database of all the claims listed in chronological order according to the time the judgments became final. It should include the enforcement time-frame and a list of partial payments, if any. This will also help to avoid abuses of the enforcement procedure. These measure and adequate funds in the annual budget would ensure that all the final judgments are enforced within a reasonable time ... and the Zenica-Doboj Canton would ensure the respect of its obligations from Article 6 §1 and Article 1 of Protocol No. 1 to the Convention. ... 50. The court considers that the adoption of section 138 of the Enforcement Procedure Act 2003 had a legitimate aim, because the enforcement of a large number of judgments at the same time would jeopardise the normal functioning of the cantons. However, the limitation of the enforcement in the present case is contrary to the principle of proportionality enshrined in Article 1 of Protocol No. 1 which requires that a fair balance is struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights ... Section 138 places a disproportionate burden on the appellants ... they are placed in a situation of absolute uncertainty as regards the enforcement of their claims... ... 52. In order to comply with its positive obligation, the government of the Zenica-Doboj Canton must, as explained above, calculate the total amount of the aggregate debt arising from the final judgments and prepare a comprehensive and transparent database ... This court will not specify what a reasonable time-limit should be ... but, in any event, it must be in accordance with Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. ... 54. ... The current situation does not give any guarantees to the appellants that their claims against the Zenica-Doboj Canton will be enforced within a reasonable time.” 10. On 16 January 2013 the Constitutional Court adopted a procedural decision to the effect that its decision of 12 October 2011 and eight other decisions on the same matter in cases concerning various individual appellants (see paragraph 15 below) had not been enforced. 11. The final judgments in the applicants’ favour have not yet been enforced. | 1 |
test | 001-147657 | ENG | HRV | ADMISSIBILITY | 2,014 | BEKIĆ AND OTHERS v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 1. A list of the applicants is set out in the appendix. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 22 August 1991 Dragan Bekić, Nenad Pajić, Miland Kladar and Radovan Kragulj, the applicants’ respective close relatives, were killed. 5. On 12 June 2006 the applicants’ legal representative lodged a criminal complaint with the Sisak County State Attorney’s Office against I.K., V.C., V.K., and M.Š. on charges of war crimes against the civilian population, which concerned the killing of fifteen individuals, including the applicants’ close relatives mentioned in paragraph 4 above. 6. The Sisak County State Attorney’s Office concluded that the applicants’ relatives had been killed in combat between paramilitary groups of the so-called “Serbian Autonomous Region of Krajina” and the Croatian Army or as collateral victims of that combat, so on 11 December 2006 it dismissed the criminal complaint. 7. The applicants took over the prosecution, and on 27 December 2006 lodged a request for an investigation with the Sisak County Court. On 29 January 2007 the court invited the applicants to amend their request to satisfy the requirements prescribed under the Code of Criminal Procedure. The applicants did not reply, and on 23 April 2007 the court declared the request inadmissible. This decision became final on 9 May 2007. 8. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows: “(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens. (2) Exceptionally, in respect of certain criminal offences, it may be prescribed by law that criminal proceedings shall be instituted by private prosecution or that the State Attorney’s Office shall institute criminal proceedings by [private] application.” 9. 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) provide as follows: “(1) Criminal proceedings shall be instituted and conducted at the request of an authorised prosecutor only. (2) In cases involving criminal offences subject to public prosecution, the authorised prosecutor shall be the State Attorney, and in cases involving criminal offences to be prosecuted privately, the authorised prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there exists a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution, and there are no legal impediments to the prosecution of that person. ... (6) Where the State Attorney finds no grounds to institute or conduct criminal proceedings, the injured party acting as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.” Articles 47 to 61 regulate the rights and duties of private prosecutors and injured parties acting as subsidiary prosecutors. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (offences of a lesser degree). An injured party acting as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecution authorities have, for whatever reason, decided not to prosecute. “(1) Requests to prosecute shall be lodged with the competent State Attorney’s Office and private prosecutions with the competent court. (2) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also thereby lodged a request to prosecute. (3) Where the injured party has lodged a criminal complaint or a request to prosecute, but the [competent authorities] establish that the criminal offence in question should be prosecuted by private prosecution, the criminal complaint or request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time-limit prescribed for [bringing] a private prosecution...” Pursuant to Article 55 § 1, the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of the party’s right to take over the proceedings, as well as to provide instructions to that party regarding the steps to be taken. “(1) Private prosecutions, bills of indictment, requests to prosecute, legal remedies and other statements and information shall be submitted in writing unless otherwise provided by law. (2) The submissions referred to in paragraph 1 shall be comprehensible and contain the necessary information for the authorities to act upon them. (3) Unless otherwise provided in this Act, the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them. Where the submissions have not been amended as required, the court shall declare them inadmissible. (4) In its invitation to amend the submissions, [the court conducting the proceedings] shall warn the person concerned about the consequences of not complying with the instructions.” “(1) Citizens shall report criminal offences subject to public prosecution. ...” “(1) A [criminal] complaint shall be lodged with the competent State Attorney’s [Office] in writing or orally. ...” Article 188 governs, inter alia, the required contents of a request for an investigation, namely details of the person in respect of whom the request is being submitted, a description and the legal classification of the relevant offence, the circumstances confirming there exists a reasonable suspicion that the person concerned has committed the offence, and any existing evidence. Article 205 § 1 allows a private prosecutor and the injured party acting as a subsidiary prosecutor to lodge with an investigating judge of a competent court a request for prosecution and other submissions. | 0 |
test | 001-142185 | ENG | ALB | COMMITTEE | 2,014 | CASE OF KARAGJOZI AND OTHERS v. ALBANIA | 4 | Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);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) | Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney | 5. On 20 March and 3 October 1996 the Tirana Commission on Restitution and Compensation of Properties (“the Commission”) recognised the applicants’ inherited title to a plot of land measuring 1,214 sq. m. Since the plot of land was occupied by two buildings which housed foreign embassies, the applicants would be compensated in one of the ways provided for by law. 6. The Commission decision remains unenforced. 7. On 28 March 1995 the Mat Commission recognised the applicant’s title to a plot of land measuring 7,984 sq. m, of which 4,797 sq. m were restored. Since 3,187 sq. m were occupied, the applicant would be compensated in State bonds. 8. The Commission decision remains unenforced. 9. On 27 December 1996 the then Court of Cassation dismissed an appeal by the applicant against the lower courts’ refusal to rule in favour of his property claim in respect of a different plot of land measuring 11,112 sq. m. 10. On 29 August 1995 the Tirana Commission recognised the applicant’s inherited title to a plot of land measuring 1,154.62 sq. m. Since a stadium had been constructed on the plot of land, the applicant would be compensated in one of the ways provided for by law. 11. The Commission decision remains unenforced. 12. On 28 December 1994 the Tirana Commission recognised the applicant’s inherited title to a plot of land measuring 8,900 sq. m, of which 7,727 sq. m were to be restored. Since 1,173 sq. m were occupied, the applicant would be compensated in kind in accordance with the law. 13. However, the plot of land measuring 7,727 sq. m was occupied by buildings belonging to the Urban Transportation Company (“UTC”) pursuant to a sale contract of 1994 concluded between the UTC and the National Privatisation Agency. The Commission indicated that, pursuant to the law, the UTC was obliged to pay rent to the applicant on the basis of a contract to be concluded between the two parties. 14. On 25 November 1996 the UTC sold the buildings and the plot of land to a third party, which was subsequently placed under compulsory administration. Following judicial proceedings instituted by the administrators against the Commission decision that had restored the applicant the plot of 7,727 sq. m, the domestic courts annulled that part of the Commission decision and decided that the applicant would be compensated in one of the forms provided for by law. The applicant’s appeals were rejected by the Constitutional Court on 15 December 2005 and 18 July 2006. 15. Meanwhile, between 2003 and 2004 the applicant sold three plots of land, all measuring 2,558 sq. m, to third parties. 16. On 12 November 2007 the applicant informed the Registry that the authorities had allowed construction to begin on four buildings on his plot of land. 17. The Commission decision, as amended by the later court decisions, remains unenforced as regards a plot of land measuring 6,342 sq. m. 18. On 12 December 1994 the Vlora Commission recognised the applicants’ inherited title to a plot of land measuring 3,600 sq. m, of which two warehouses and two plots of land, both measuring 820 sq. m, were restored. Since 2,240 sq. m were occupied by buildings, the applicants would be compensated in one of the ways provided for by law. 19. The Commission decision remains unenforced. 20. On 12 November 1993 the Korça Commission recognised the applicants’ inherited title to a plot of land measuring 2,250 sq. m of which 278 sq. m were restored. Since the remaining 1,972 sq. m were occupied, the applicant would be compensated in State bonds. 21. The Commission decision remains unenforced. 22. On 22 August 1996 the Tirana Commission recognised the applicants’ inherited title to a plot of land measuring 10,056.7 sq. m. Since the plot of land was occupied by a national park, the applicants would be compensated in one of the ways provided for by law. 23. The Commission decision remains unenforced. 24. On 9 March 1996 the Durrës Commission recognised the applicants’ and inherited title to a plot of land measuring 12,000 sq. m. It decided that the applicants would be compensated in State bonds in respect of 4,950 sq. m and in-kind in respect of 5,000 sq. m. No other decision was taken as regards the remaining 2,050 sq. m. In fact, 600 sq. m were restored to the applicants. 25. The Commission decision as regards compensation in respect of 9,350 sq. m remains unenforced. 26. On 30 August 1995 the Tirana Commission recognised the applicant’s and other relatives’ inherited title to a plot of land measuring 1,100 sq. m, of which 142 sq. m were restored. Since 958 sq. m were occupied, the applicant would be compensated in one of the ways provided for by law. It would appear that, despite the latter aspect of the decision about the 958 sq. m, a building permit was granted to a third party by the Municipality of Tirana on 7 March 1997 for the construction of a 9-storey building. The applicant’s requests of 19 February and 4 April 2008 to the Municipality for a copy of the relevant file remain unanswered. 27. The applicant has not yet received any compensation in respect of that plot of land. 28. On an unspecified date in 2008 the applicant lodged a compensation claim with the Agency. 29. On 3 March 2009 the Agency dismissed his claim owing to the lack of funds. 30. The Government submitted that in 2009 the applicant and his relatives applied for and received compensation in the amount of ALL 6,000,000 in respect of another plot of land from the Financial Compensation Fund. 31. On 3 October 1995 the Shkodër Commission restored the applicants’ inherited title to three plots of land measuring 4,910 sq. m, 1,880 sq. m and 1,640 sq. m, respectively, totalling 8,430 sq. m. It further decided that the applicants would be compensated in one of the ways provided for by law in respect of another plot of land measuring 2,833 sq. m. Finally, it recognised the applicants’ right to first refusal of a further plot of land measuring 14,537 sq. m. 32. The applicants’ title to the plots of land measuring 8,430 sq. m were recorded in the mortgage office. Using their right to first refusal, the applicants bought a number of parcels of land and buildings, totalling 2,194 sq. m, which were also recorded in the mortgage office. It would appear that the applicants had been unable to enjoy possession of their properties, because they had been occupied by third parties. 33. On an unspecified date in 1999 the third parties challenged the applicants’ property title as awarded by the Commission decision of 1995. In the meantime, on 17 February 1999, following the applicants’ request, the Shkodër District Court delivered an injunction against the third parties requiring them to stay the construction works on the applicants’ properties (masa e sigurimit për pezullimin e punimeve të ndryshme). On 18 February 1999 the bailiff drew up a report by which the third parties were informed of the injunction order against the continuation of the construction works (nga ana jonë ju komunikua që sot e tutje të mos bëjë ndërtime të ndryshme në këtë objekt ku në të kundërt do mbajë përgjegjësi ligjore). On 2 February 2001 the third parties’ action was finally dismissed by the Supreme Court. 34. To date, the applicants have not benefited from any amount of compensation in respect of the plot measuring 2,833 sq. m. Furthermore, their plots of land as well as buildings remain occupied by the third parties’ unlawful actions. | 1 |
test | 001-175140 | ENG | UKR | CHAMBER | 2,017 | CASE OF M.S. v. UKRAINE | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1986 and lives in Sumy. 6. The applicant had relations with V., a female student born in 1989. On 24 March 2008 V. gave birth to their daughter. On 29 August 2008 the applicant and V. registered their marriage. 7. From the time of the birth of the child the couple and their daughter lived in the applicant’s flat in Sumy. The applicant’s parents lived in the same flat and assisted the parents in bringing up the child. 8. In 2009 the applicant and V. were absent from home for six months, as they were working abroad. During their absence the applicant’s parents took care of the child. 9. In October 2010 the child was admitted to a child-minding centre in Sumy. 10. Between 2010 and 2011 V. worked abroad for six months. During that time the child was taken care of by the applicant and his parents. While working abroad, V. transferred funds to the applicant to support the family. 11. Relations between the applicant and V. grew worse and on 20 September 2011, after a quarrel with the applicant, V. took the child and moved from the flat without the agreement or knowledge of the applicant. The applicant was not informed of the place to where V. and the child moved to live. 12. On 28 September 2011 the applicant asked the police to establish the whereabouts of the child. He and his parents also conducted their own enquiries. 13. As was further established in the course of the domestic proceedings, V. moved to the village of Bezdryk, near Sumy, where she apparently cohabited with her uncle, F. (born in 1967). The applicant’s child was admitted to the child-minding centre located in the same village. 14. On 1 December 2011 the applicant found the child at the Bezdryk child-minding centre. According to the applicant, the child’s body bore bruises. He took the child back to his flat in Sumy and the following day submitted her for medical examination. 15. On 2 December 2011 a forensic medical expert examined the child and reported a red spot on the chin, measuring 1.5 cm by 0.8 , which – in the expert’s opinion – was “a sign of an earlier abrasion”. The expert also documented two abrasions on the nose, measuring 0.4 cm by 0.3 cm and 0.3 cm by 0.2 cm; a bruise on the back, measuring 2 cm by 1 cm; two bruises on the right shin, measuring 1.8 cm by 1 cm and 1.5 cm by 1 cm; and a red, itchy spot in the abdominal area. The expert stated that the injuries could have been caused by blunt objects three or four days before the examination. 16. The applicant asked the police to carry out a criminal investigation in connection with the injuries sustained by his daughter, who had allegedly explained that the injuries had been inflicted by V. 17. After her return to Sumy, the child continued to live with the applicant and his parents. V. was given access to the child only in the presence of the applicant or other persons that he trusted. 18. On 9 December 2011 the Zarichnyy district police of Sumy refused to open a criminal investigation in respect of the alleged abduction of the child, stating that the facts of the case did not indicate that the crime of child abduction had been committed. It was noted that the couple had not divorced and it had yet to be determined by the court with whom the child should reside. 19. On 13 December 2011 the Trostyanetskyy district police of the Sumy Region refused to open a criminal investigation in connection with the child’s injuries, as determined on 1 December 2011, for lack of corpus delicti. According to the police decision, the seriousness of the injuries had not been established; however, if the injuries had been minor, the applicant was free to institute a private prosecution against the person concerned. 20. On 28 March and 9 April 2012 the applicant’s mother requested the law-enforcement authorities to institute criminal proceedings against V. and F. under Article 156 § 2 of the Criminal Code. She considered that the child could have been a victim of sexual abuse in the period during which the latter had been living together with V. and F. in the village of Bezdryk. The applicant’s mother submitted that the child had told her personal stories which suggested that V. and F. might have engaged in sexual activities in view of the child and that F. had shown his genitals to the child. 21. On 9 April 2012, in the course of a pre-investigation inquiry, the applicant’s daughter was interviewed in the presence of the applicant’s mother. The child explained that during her stay with the mother in the village of Bezdryk she had regularly observed V. and F. naked, embracing and kissing each other and engaging in some “backwards and forwards movements” which she had not been able to understand; F. had taught the child how to kiss in an adult fashion, uncovered his genitals in front of her and asked her to touch his genitals. 22. On 14 April, 16 May and 31 October 2012 the Sumy district police, having conducted the pre-investigation inquiries, refused to open criminal proceedings for lack of corpus delicti. Those decisions were quashed as unsubstantiated by the supervising prosecutors, who ordered further measures, such as establishing the whereabouts of F. (who had not been interviewed), identifying and interviewing possible witnesses, inspecting the premises and the yard where the alleged crime could have been committed, and undertaking medical and psychological examinations of the child. 23. On 8 November 2012 the Sumy district police once again refused to open criminal proceedings against V. and F. on the grounds that there had been no corpus delicti. In their decision the police referred to the interviews with the applicant’s child, V., and other people. V. denied the allegations. F. could not be interviewed as he had moved abroad. In sum, the Sumy district police concluded that the available material had been insufficient to suggest that any crime had been committed. 24. On 8 May 2013 the applicant, relying on the new Code of Criminal Procedure of 2012, requested that an investigation be opened against V. and F. in respect of the alleged child sexual abuse. On the same day the Sumy district police opened a criminal investigation under Article 156 § 2 of the Criminal Code. The applicant was admitted to the proceedings as the representative of his daughter. 25. The investigator ordered that measures be undertaken to establish the whereabouts of F. During the investigation V. denied the allegations and submitted that she had been a victim of domestic violence, that she had been threatened and beaten by the applicant, and that this had prompted her to run away with the child on 20 September 2011; she also submitted that she had moved to the village of Bezdryk, where her grandfather lived, and that she had had no sexual relations with F., her uncle. When questioned, the applicant and his mother insisted on the truth of their previous statements. They underwent polygraph examinations which suggested that they had told the truth in their submissions. 26. On 3 October 2013 the applicant’s daughter was questioned in the presence of a psychologist and her grandmother (the applicant’s mother). The applicant’s daughter submitted in particular that F. had taken her hand and placed it on his genitals; that F. had taught her to kiss in an adult fashion; and that F. and V. had engaged in certain activities which she had not been able to understand and which she had earlier described to the applicant and the grandmother. 27. On 21 November 2013 a panel of experts carried out a forensic psychiatric examination of the applicant’s daughter. In the course of the examination, the child stated that F. had been touching her genitals and she, in compliance with his commands, had had to touch F.’s genitals. F. taught her to kiss in an adult fashion. The child stated that she had seen V. and F. naked and kissing each other; she then described the movements that she had observed V. and F. engaging in while in bed. 28. The experts found that the child had not been suffering from any mental illness at the time of the events or at the time of the examination; that she had not shown any tendency to fantasise; and that she was able to remember the circumstances of the events at issue and to give truthful statements in that regard. However, she could not understand the meaning of the actions that she had observed or in which she had participated. The experts concluded that the child could take part in the investigative measures. 29. On 9 April 2014 the deputy head of the investigation division of the Sumy regional police department ordered the investigator in charge of the case to immediately speed up the investigation, which, in his opinion, was being conducted too slowly. He requested the investigator to undertake a number of investigative measures. 30. On 28 April and 29 September 2014 the Sumy district police closed the criminal proceedings for lack of corpus delicti in the actions of V. and F. Having assessed the available material, the investigator found that there had been insufficient evidence submitted to enable the bringing of charges of sexual abuse. In the last decision the investigator also referred to the statements by F. who was questioned on 20 September 2014 and who denied all the allegations, arguing that they were totally false. 31. These two decisions were reversed as unsubstantiated by the supervising prosecutors, who ordered further investigation. 32. On 27 December 2014 the Sumy district police decided once again to close the criminal proceedings. In examining the statements of the applicant’s daughter, the investigator considered that these statements could not convincingly prove the alleged events since the child had made those statements belatedly; furthermore, the child had only been three years old at the time of the events in question. The investigator furthermore noted that these statements did not suggest anything in respect of mens rea, in particular whether there was any sexual intent in V.’s and F.’s alleged actions in relation to the child, or whether they had been aware of the fact that the child had been observing them during the alleged instances of sexual intercourse. 33. The investigator then referred to the statements of the applicant and his mother, as well as of the mothers of two girls with whom the child had used to play. The latter two women stated in particular that the applicant’s daughter had told them stories which had suggested that she had been subjected to sexual abuse while she had been living with V. and F. The investigator noted that those individuals had not directly observed the alleged instances of sexual abuse and that they had simply repeated statements made by the child. The investigator then stated that V. and F. denied the allegations of child sexual abuse. Other people, such as the child’s teacher at the child-minding centre and village inhabitants, had not provided any more precise information. Overall, the investigator concluded that the available material had been insufficient for him to conclude that V. and F. had committed the alleged crime. 34. On 6 March 2015 the Sumy district prosecutor’s office reversed the decision of 27 December 2014 as unsubstantiated. The supervising prosecutor found that the previous instructions given by the prosecutor’s office had not been followed and that it was necessary to take further investigative measures. 35. As of 20 January 2016, the investigation was ongoing. 36. On 20 June 2012 the Zarichnyy District Court of Sumy dissolved the marriage between the applicant and V. and ruled that the child should live with V. The court ordered the applicant to hand over the child to V. and to pay her a monthly amount for the support of their daughter. 37. In determining the place of the child’s residence, the court first established that until 20 September 2011 the child had lived with both parents and her paternal grandparents in the applicant’s flat and that all of them had participated in the upbringing of the child; the paternal grandparents had taken care of the child when both parents had been abroad for six months in 2009; when V. had been abroad for six months over 2010 and 2011 she had transferred money earned by her to the applicant to cover the needs of the family. On 25 October 2010 the child had been admitted to the child-minding centre in Sumy; the child had been accompanied to and from the centre by the applicant. 38. The court also established that on 20 September 2011 V. had taken the child and moved from the flat because of conflict between her and the applicant. On 25 October 2011 the child had been admitted to the childminding centre in the village of Bezdryk. The child had been accompanied to and from the centre by her mother. On 1 December 2011 the child had been taken from the centre by her father. Since that time the child had been living again in the applicant’s flat in Sumy. 39. In comparing the applicant’s flat and the flat where V. was then living, the court found that both flats were located in Sumy and offered appropriate conditions for the residence of the child. In that regard the court referred to the report of the local guardianship office, which stated that both parents provided adequate residential conditions for the child. As to the income of the parents, the father was employed and received a salary; the mother was a student but worked unofficially and had been abroad to earn money. Both parents had positive reference letters and the child had an equal attitude towards both of them. 40. The court dismissed as unsubstantiated the applicant’s allegation that the mother was negligent with the child and that she might have exercised physical violence against the child: in contrast to the results of the medical examination of 2 December 2011 documenting the injuries on the child’s body (see paragraph 15 above), the staff of the Bezdryk child-minding centre had signed a certificate stating that on 1 December 2011 the child had had no injuries; furthermore, the police had refused to institute criminal investigation in respect of the child’s injuries (see paragraph 19 above). The court concluded that there was no link between V.’s attitude towards the child and the latter’s injuries. 41. Relying on the United Nations Declaration of the Rights of the Child of 1959 the United Nations Convention on the Rights of the Child and Article 161 of the Family Code, the court found that the facts did not disclose any exceptional circumstances which could justify the separation of the child from her mother. Consequently, it determined that the child should reside with her mother. 42. The applicant appealed against that decision, arguing that the firstinstance court had breached substantive and procedural provisions of domestic legislation and international law. He submitted that in determining the place of the child’s residence the court should have been guided by the principle of the best interests of the child. The applicant insisted that on 20 September 2011 V. had secretly moved with the child from the flat and destroyed the stability of the child’s everyday life. The court had failed to properly examine the allegations that V. had behaved violently towards the child and the possibility that the child had been the target of sexual abuse during the period when she had lived apart from her father with her mother. The applicant emphasised that on 1 December 2011 he had lawfully taken the child back to his flat since the child had previously been permanently living in his flat and he had never given any consent for V. to change the child’s place of residence. In his opinion, the court had paid no attention to the fact that the child had been attached to the paternal grandparents and that her separation from them would be detrimental to her interests. Furthermore, the respective financial capacity of the applicant and V., as well as the residential conditions, had not been properly assessed. Important pieces of evidence had not been included in the case file and part of the evidence had been assessed wrongly – namely, the certificate issued by the Bezdryk child-minding centre regarding the child’s good state of health was a fabricated document that had been discredited by the forensic medical expert report of 2 December 2011. 43. On 9 August 2012 the Sumy Regional Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court. The Court of Appeal found that the allegations of child abduction, sexual abuse and physical violence had been groundless. As to the child’s attachment to the paternal grandparents, the Court of Appeal considered that the parents played a more important role in the upbringing of the child. Overall, the findings of the first-instance court had been lawful and reasonable. 44. On 14 September 2012 the Higher Specialised Court for Civil and Criminal Matters dismissed a cassation appeal lodged by the applicant as unfounded. | 1 |
test | 001-155483 | ENG | SRB | ADMISSIBILITY | 2,015 | ZARUBICA AND OTHERS v. SERBIA | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 3. The applicants are Mr Milan Zarubica (“the first applicant”), VARAN CHEMICALS LTD (“the second applicant”) and LENAL PHARM LTD (“the third applicant”). 4. The first applicant is a medical doctor and a Serbian national who was born in 1968, and is presently serving a prison sentence in the Sremska Mitrovica Penitentiary. The second and third applicants are limited liability companies based in Serbia. They were both co-owned by the first applicant. 5. The applicants are represented before the Court by Mr M. Zindović, Mr Ž. Lazović, N. Zeković and M. Timotijević, all lawyers practising in Belgrade. The Serbian Government (the Government”) were initially represented by their former Agent, Mr S. Carić, and subsequently by their current Agent, Ms Vanja Rodić. 6. The facts of the cases, as submitted by the parties, may be summarised as follows. 7. On 4 February 2003 the first applicant was arrested on charges primarily related to the production and trafficking of narcotics (amphetamines). 8. On 27 June 2003 the first applicant and numerous others were indicted by the Belgrade District Public Prosecutor’s Office for various drugs-related felonies alleged to have been committed in an organised crime context. The first applicant was described as being the head of this criminal enterprise. 9. The second and third applicants were never indicted, as the domestic legislation at that time did not provide for the possibility to bring criminal charges against legal entities. They were, however, mentioned as vehicles used by the first applicant and others to carry out their criminal endeavours, as well as companies in which criminal proceeds had been invested. 10. On 25 March 2005, the Belgrade District Court: (a) found the first applicant guilty and sentenced him to a total of twelve years’ imprisonment for the narcotics-related charges, as well as the charge of tax evasion; (b) ordered the confiscation of all substances containing amphetamine found in the first applicant’s possession; (c) ordered the confiscation of the 320,000 United Sates Dollars (“USD”) and 89,000 Euros (“EUR”) found in the first applicant’s flat; (d) ordered the confiscation of the 2,500,000 Swiss Francs (“CHF”) deposited in the first applicant’s bank account in Switzerland; (e) ordered the first applicant to pay, for the restitution of the “remainder of his criminally gained assets”, the sum of USD 10,000,000; and (f) ordered the confiscation of a building owned by the second applicant, as well as the confiscation of all of the second and third applicants’ production facilities, laboratory equipment and chemical substances found on their premises. 11. On 2 February 2006 the Supreme Court upheld the first applicant’s conviction as regards the narcotics-related charges, and sentenced him to eleven years’ imprisonment. The Supreme Court further quashed the first applicant’s conviction regarding tax evasion, and excluded the second applicant’s building from the confiscation ordered at first instance, noting that following the removal of the confiscated production facilities and illegal substances the building itself posed no danger to the public. 12. The applicants did not receive the Supreme Court’s decision before 5 March 2006. 13. In April 2006 the applicants filed an appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude). 14. On 24 January 2007 the Supreme Court, sitting in a differently composed panel compared to the one which had considered the applicants’ case on appeal, rejected the first applicant’s appeal on points of law as unfounded. As regards the second and third applicants’ pleadings, they were rejected as inadmissible since an appeal on points of law could only be filed by the defendants and their counsel. On 7 March 2007 the judgment was issued in writing. 15. On 9 May 2006 the District Court formally filed a request with the competent Swiss authorities, relying on its judgment of 25 March 2005, seeking confiscation of the funds deposited on the first applicant’s bank account in Switzerland. 16. On 18 May 2007 the Zurich District Prosecutor’s Office rejected this request as unfounded, stating, inter alia, that it could not conclude that the assets in question were indeed of a criminal origin. In particular, there was no evidence that the first applicant had made any deposits during the period when he was alleged to have committed the crimes in question. By 18 June 2007, this rejection became final. 17. On 25 July 2007 the first applicant was informed by the Swiss authorities that he could freely access and make use of his funds on the bank account in question. | 0 |
test | 001-167497 | ENG | RUS | COMMITTEE | 2,016 | CASE OF ZAUSHKIN AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 4. The applicant Mr Zaushkin was held in custody without a judicial order from 5 November 2012 when the detention order of 17 May had expired, and until 19 November when a new detention order was issued. 5. In case of the applicant Mr Kornev, the 25 April 2013 the court had ordered his transfer from the remand prison under house arrest but he was not transferred until 16 May. 6. The applicant Mr Butenko remained in custody after the court had ordered his release on 25 April 2013 until a higher court overturned the release order on 11 July. | 1 |
test | 001-175667 | ENG | NLD | CHAMBER | 2,017 | CASE OF M v. THE NETHERLANDS | 1 | No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Access to relevant files);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses);Non-pecuniary damage - finding of violation sufficient (Article 41 - Jurisdiction to give orders or grant injunctions;Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Egbert Myjer;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1970 and lives in Houten. 7. The applicant was employed by the AIVD as an audio editor and interpreter. In this capacity he had access to classified information (gerubriceerde informatie), which he was under a duty not to divulge to persons not authorised to have knowledge of it. 8. The suspicion arose that the applicant had forwarded copies of classified documents to persons outside the service, including in some cases persons who were under covert investigation by the AIVD in connection with possible terrorist activity. 9. On 30 September 2004 the applicant was arrested. He was charged with divulging State secret information to persons not authorised to take cognisance of it and taken into detention on remand (voorlopige hechtenis). 10. The AIVD advised the applicant in writing that he was still under an obligation of secrecy. Consequently it would be constitutive of a further criminal offence if he were to discuss matters covered by his duty of secrecy with anyone including his counsel. 11. The applicant’s counsel were also warned that they might be prosecuted should they divulge any State secret information to third parties. 12. The trial opened before the Rotterdam Regional Court (rechtbank) on 10 January 2005. It was adjourned several times. 13. The applicant’s counsel protested against the restrictions affecting communication between themselves and the applicant, which in their submission undermined the effectiveness of the defence. They also asked for certain documents to be added to complete the file: these included the internal AIVD report that was the basis of the prosecution, which was absent from the file altogether, and the documents which had supposedly been leaked, which had been added to the case file in redacted form with parts blacked out. They further repeated a request, made earlier in writing, for the applicant to be released unconditionally from his duty of secrecy in order to conduct his defence (vrijwaring). 14. The public prosecutor (officier van justitie) announced that some but not all of the documents requested by the defence would be added to the file but refused to release the applicant from his duty of secrecy unconditionally. 15. On 24 January 2005 the Regional Court gave a decision remitting the case to the investigating judge, to whom it would fall to carry out investigations in such a way as to mitigate, and compensate as far as possible, the handicaps under which the defence laboured. 16. On 4 March 2005 the head of the AIVD informed the applicant in writing that communication of matters covered by his duty of secrecy was permitted, subject to the following conditions: He would be allowed to discuss such matters only with his counsel, Ms Böhler and Mr Pestman; He was not allowed to reveal the identity of any AIVD staff or human sources; He could discuss only “that which [was] contained in the case file”; This exemption covered only information that was strictly necessary for the defence; This exemption was valid only until the final judgment in the domestic proceedings was given. The letter continues: “In order to preclude any misapprehension I stress that this release from the duty of secrecy does not apply to the suspect’s counsel. In the event that counsel wish to make use of information obtained from the suspect with a view to the defence of M, this must be done in consultation with the investigating judge. The investigating judge will then determine whether the (answers to the) questions are of any relevance to the criminal proceedings (strafvorderlijk van belang). If this is the case, the AIVD will then indicate to what extent State secrets are at stake in this context.” 17. On 1 April 2005 the Head of the AIVD wrote to the investigating judge in the following terms: “... I consider it of great importance that the suspect (verdachte) should be able to defend himself adequately against the matters of which he is suspected. This entails that he will have to consult his counsel for that purpose. To that end I have granted the suspect conditional release from his duty of secrecy. These conditions are necessary and serve the interest of national security. There exists a certain tension within these frameworks, i.e. a (more far-reaching) release (as requested) of the duty of secrecy and the interests of national security. After all, the AIVD can only carry out its statutory duty within a certain measure of secrecy. Three criteria are of importance in this respect, namely that the AIVD should be able to maintain the secrecy of its current levels of intelligence, its sources and its working methods. These are critical thresholds that can be seen as the practical implementation of the so-called ‘jeopardise’ criterion in the case-law of the European Court of Human Rights. ... ... Two additional conditions apply: 1. the release from his duty of secrecy granted [the applicant] shall apply solely to communication between the suspect, his lawyers Böhler and Pestman, Public Prosecutor Z. and the court, and 2. shall take place within the confines of the offices of the Investigating Judge or in the presence of the trial court in a closed hearing. ... The parties to the proceedings are to submit their questions and other requests to you [i.e. the investigating judge]. You then check whether the questions and requests are of any procedural significance (strafvorderlijk belang) in these proceedings, as you have indicated to me with regard to the three subjects mentioned by counsel. In the affirmative, you offer me the opportunity to consider whether the text of the questions in itself can harm national security. In the (probably most likely) event that the questions in themselves cannot harm national security, the answer can be provided in the accustomed way, i.e. by means of an official AIVD report ... In addition, and if the parties to the proceedings consider it necessary, more specific answers can be given by means of, for example, the hearing of witnesses. Perhaps unnecessarily I would observe that section 86(2) of the 2002 Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten) applies. In the event that the line of questioning (vraagstelling) in itself is capable of endangering national security, it is my responsibility, pursuant to section 15 of the 2002 Intelligence and Security Services Act, to ensure the secrecy of the information that should remain so and accordingly the classification of that information. I therefore propose that you do not place this information, after I have classified it, in the case file and to request the Regional Court to deal with those questions at a closed hearing. I am of the opinion that the above procedural proposal serves the interests of all parties to the proceedings, taking into account the interests involved in national security. ... The second condition, which is that the suspect should not be allowed to disclose the identities of AIVD members or human sources, appears clear enough to me. All information that, whether or not in combination with other information, may lead to the identities of AIVD members or human sources becoming known, falls within the scope of the second condition for release [from the duty of secrecy]. ... As regards the third and fourth conditions, I am of the view that these too are sufficiently clear: [the applicant] is released from his duty of secrecy vis-à-vis his counsel Dr B. Böhler and Mr M. Pestman in so far as consultation between the suspect and his counsel [Dr] Böhler and Mr Pestman relates to the crimes with which he is charged. In the event that counsel wish to discuss documents with the suspect which they may wish to add to the case file, the third and fourth conditions should be interpreted to mean that the documents must be relevant and directly necessary for the defence in this case and may possibly be added to the case file. [These requirements of] relevance and direct necessity also apply to the preparation of requests and defences. As to the latter condition: if and when such a procedure becomes a real possibility I will consider, if asked, whether release from the duty of secrecy, conditional or not, is possible. ... Fourthly, you have asked me to react to the witnesses requested by counsel. I presume that you mean the AIVD members. I am of the opinion that this is above all a matter of criminal procedure, the public prosecutor indicating in her letter that the questions counsel would like to ask relate primarily to the working methods of the AIVD, the spreading of the leaked information and the internal investigation into this. I can agree with the position taken by the public prosecutor that these questions can most probably be answered by me or my deputy during a witness hearing. Whether and to what extent national security permits the questions to be answered will have to be seen for each question. This will require me first to have the questions intended to be asked at my disposal, so that the Ministers of Justice and of Internal Affairs and Kingdom Relations can decide together and in due time on the application of section 86(2) of the 2002 Intelligence and Security Services Act. As to the possible questioning of AIVD members as witnesses, I would ask you to make it possible, in pursuance of Article 187c of the Code of Criminal Procedure, for special access to be granted to an additional AIVD member. This person can consider the interests of national security for each specific question during the interrogation. This will also permit the defence to put ‘sub-questions’, questions arising from the questions previously submitted in writing. The hearing of witnesses will thus, in my opinion, considerably speed up the pace of the proceedings – at least as far as the hearing of witnesses is concerned – since the (additional) AIVD member present will in many cases be able to decide almost immediately whether the said sub-questions can be answered. This acceleration of the proceedings, in my opinion, benefits all parties to the proceedings. I am prepared to advise the Ministers of Justice and of Internal Affairs and Kingdom Relations, on the basis of section 86(2) of the 2002 Intelligence and Security Services Act, to consider this in any exemption decision. ...” 18. On 15 April 2005 the Regional Court gave a decision in which, following the public prosecutor, it refused to make the exemption unconditional. It expressed the view that it would serve no useful purpose to allow the applicant to disclose the identities of AIVD staff members and informants to his counsel. The interests of the applicant were sufficiently protected inasmuch as the exemption covered information strictly necessary for his defence. The Regional Court ordered the investigating judge to hear thirteen witnesses referred to by name and seven witnesses referred to by a code name or number. It refused to order the hearing of fifteen other witnesses referred to by a number and one named witness immediately, leaving that decision to be taken by the investigating judge after a particular witness, an AIVD staff member called B., had been heard. As to the partially blacked-out documents, the Regional Court noted that it too was thereby prevented from considering whether they held secret information within the meaning of Articles 98 and 98a of the Criminal Code (Wetboek van Strafrecht, see below); even so, the prosecution interest in maintaining secrecy prevailed. 19. The named witness B. was heard on 23 May 2005 and 6 June 2005. It appears that he refused to answer certain questions because of his duty of secrecy. 20. It appears that on 9 June 2005 the investigating judge decided to refuse to hear the sixteen witnesses requested by the defence for lack of available time (agendatechnische redenen). 21. On 17 June 2005 the investigating judge decided that the unnamed witnesses permitted to be questioned would be heard at a secret location, under heavy disguise and with the use of voice distorting equipment. A representative of the AIVD and legal counsel of the State would attend in addition to the prosecution and the defence. 22. The defence lodged an objection against the investigating judge’s decision of 17 June 2005 with the Regional Court, stating also that they would not cooperate in any witness hearing held at a secret location. They also asked for the named witnesses already heard to be relieved of their duty of secrecy and to be heard anew. 23. The Regional Court held a hearing in camera on 5 July 2005. The defence outlined its provisional strategy, which was to aim for an acquittal by identifying potential sources of the leaks other than the applicant and by demonstrating that the documents leaked did not contain State secrets properly so-called. They also wished to establish the applicant’s attitude to his work for the AIVD. This strategy required the applicant’s former direct colleagues to be questioned and uncensored copies of the documents in question to be made available to the defence and the court. 24. On 8 July 2005 the Regional Court gave an order for two further named witnesses to be heard but dismissed the defence’s objection for the remainder. 25. On 14 July 2005 the defence challenged two judges of the trial chamber who had also taken part in the decision of 8 July 2005, arguing on various grounds that positions taken in the latter decision prejudged the outcome of the trial. 26. The following day, 15 July 2005, the challenge was dismissed and the trial hearing was resumed. The defence asked for documents to be added to the file, including all those found in the applicant’s desk. The Regional Court remitted the case to the investigating judge for the hearing of the witnesses authorised to be heard, in so far as they had not already been heard, and requested the prosecutor to add documents to the file including a description – to be prepared by the AIVD – of the documents found in the applicant’s desk. 27. Witnesses were heard on various dates. In so far as they were unnamed AIVD staff members, they were identified by a number; they were heavily disguised and they were placed in a box that left only their upper body visible; and their voices were distorted. The applicant states that it was impossible to discern their body language and facial expressions. He further states that an AIVD official was present, who could – and did – prevent named and unnamed witnesses from answering a proportion of the questions put by the defence, and that this was permitted by the investigating judge. 28. The trial hearing was resumed on 30 August 2005. Finding no indication that the AIVD information had been leaked by someone else, the Regional Court yet again refused to hear the named witness and the fifteen unnamed witnesses. As to AIVD staff members who refused to disclose certain information based on their duty of secrecy, it stated that the final decision whether to allow this lay with the trial court itself but found that it could not set precise limits as the prosecution wanted. 29. The trial hearing was resumed on 6 and 7 October 2005. The applicant made no statement. 30. On 30 November 2005 the trial hearing resumed. The prosecution and the defence made their closing statements. 31. The Regional Court gave judgment on 14 December 2005. It convicted the applicant and sentenced him to four years and six months’ imprisonment. 32. The applicant lodged an appeal with the Court of Appeal (gerechtshof) of The Hague. 33. The appeal hearing opened on 28 September 2006. Among other things, the applicant’s counsel objected to the refusal, in the proceedings at first instance, to allow the defence an unconditional exemption that would allow the applicant and his counsel to communicate unimpeded; to the hearing of unnamed witnesses under heavy disguise, in a closed box that partially hid them from view and with the use of voice distortion, even though they were the applicant’s former direct colleagues; to the withholding of evidence by the witnesses, based on their duty of secrecy as AIVD staff members; and to the withholding of documentary evidence requested by the defence. The prosecuting Advocate General (advocaatgeneraal) conveyed an offer by the AIVD to allow an independent expert to see uncensored AIVD documents and report on their content; the expert proposed had previously been a member of a committee appointed to investigate the internal functioning of the AIVD itself. The defence protested that this expert lacked independence precisely for that reason. 34. The Court of Appeal delivered an interlocutory judgment on 12 October 2006. Its reasoning included the following: “The duty of secrecy arising from the 2002 Intelligence and Security Services Act Serviced Act is subject only to the exceptions set out in that Act. The implication is that only the possibility offered by section 86(1) of that Act offers a solution for the applicant’s present predicament. The interests of State security, which the 2002 Intelligence and Security Services Act and Article 98 and following of the Criminal Code seek to protect, stand in the way of a complete release from the duty of secrecy as the defence would wish and a complete exemption from prosecution for disclosing State secrets to be granted by the Public Prosecution Service. It is obvious that the said duty of secrecy constitutes a restriction of – normally entirely – free and confidential consultation between the suspect and his counsel and that – if it remained in force in its entirety – it would prevent a fair trial. In the present case, the suspect has been granted conditional release from that duty by the AIVD, based on the latter section of the 2002 Intelligence and Security Service Act, as have his two counsel. The conditions accompanying that release, all of which concern interests of State security in relation to interests of the defence in the present criminal proceedings, appear to the Court of Appeal neither unreasonable within the framework of the interests of State security nor unworkable within the framework of the interests of the defence. ... Finally, it is the case that if the suspect and the defence, if they consider that the space left to them by the said release is not sufficient to conduct a defence meeting the requirements of the Convention and they consider, in their assessment, that he/they have to transgress his/their duty of secrecy further than the conditions governing the release allow, they can plead justification (rechtvaardigingsgrond), namely the interest of a proper defence within the meaning of Article 6 of the Convention. The Advocate General gave the assurance at the hearing of 28 September 2006 that no prosecution would be brought if a violation of the duty of secrecy by the suspect – and as the Court of Appeal presumes, his counsel as well – was justified by invoking Article 6 of the Convention.” and “The Court of Appeal assumes that the defence request [for access to the internal AIVD investigation materials] comprises all investigations undertaken by the AIVD after it had become known that a third party, i.e. S., possessed [a copy of a classified AIVD document]. It does not appear from the file that these internal investigations were set out in any report. The case file contains criminal complaints (aangiftes) based on those investigations. It must be noted in the first place that the defence request does not concern documents in the possession of the Public Prosecution Service within the meaning of Article 30 of the Code of Criminal Procedure; none of the participants in the proceedings is aware of the content of the internal investigations, save for what has been stated by witnesses in this respect, and what is set out in the said criminal complaints. There is therefore no violation of the principle of ‘equality of arms’. Quite apart from the question whether the AIVD, given its duty and responsibility ..., would be willing to submit its report or any written documents concerning its internal investigation to the public prosecution service to be added to the file, the question needs to be considered whether these documents, which do not emanate from any investigatory body, can in reason be relevant to the defence. The defence has not, in the present case, suggested, let alone shown, that the materials compiled by the AIVD within the framework of its internal investigation have been obtained unlawfully or are unreliable, but only that the documents and information provided by that service have been accepted uncritically (voor zoete koek aangenomen) first by the National Police Internal Investigations Department (Rijksrecherche) and then by the Public Prosecution Service and cannot be checked. The Court of Appeal takes the provisional view – without wishing to prejudge its final decision [on the question whether the trial was fair] – that the said materials can be assessed based on the statements of the witnesses questioned, albeit, as far as AIVD members are concerned, subject to some restrictions owing to their duty of secrecy.” It noted the “particular tension between fundamentally opposed interests”, namely the applicant’s interest as a defendant in a criminal trial and the State interest in maintaining the secrecy of AIVD information, but rejected the protests put forward on the applicant’s behalf. The judgment took note of a promise made by the Advocate General not to prosecute for a violation of the duty of secrecy if that violation was justified by reliance on Article 6 of the Convention (gerechtvaardigd is door een beroep op artikel 6 EVRM). It asked the prosecution to submit certain official reports but not the uncensored AIVD documents requested by the defence. 35. The appeal hearing was resumed on 12 February 2007. The applicant announced that he might, in his own defence, have to reveal State secret information. This prompted the Court of Appeal to exclude the public from the interrogation of the applicant, despite the latter’s protests. 36. In the course of questioning by his counsel the applicant mentioned the names of particular AIVD staff members; these are not recorded in the official record of the hearing. The Advocate General protested against the mentioning of these names in so far as they were not already to be found in the case file, which in his view was not justified by Article 6 of the Convention, and announced his intention to prosecute if the applicant should “transgress those limits” (mocht hij die grenzen overschrijden). The applicant’s counsel replied that the defence needed these names in order to decide whether to call the persons concerned as defence witnesses and pointed out that the public had been excluded. After the president decided that the Advocate General should be entitled to state a view on the acceptability of questions put to the applicant by his counsel, the applicant stated that he would for the remainder of the hearing comply with his duty of secrecy. Thereupon the hearing was reopened to the public. 37. On 14 February 2007 the applicant’s counsel Mr Pestman sent the Advocate General a letter by fax, to which was appended a list of questions he and Ms Böhler would have wished to ask the applicant in support of the case for the defence. These questions concerned AIVD working methods and procedures and AIVD members. One question asked the applicant to identify individual AIVD members on a handwritten anonymised organigram by name. Other questions asked the applicant to state the names of AIVD members other than himself who would have had access to the documents found to have been leaked. 38. The hearing continued on 15 February 2007. The Advocate General announced his intention to prosecute the applicant should he answer questions naming AIVD sources, providing an insight into AIVD working methods or relating to the blacked-out parts of the redacted documents. Responding to protests by the defence, the Court of Appeal referred to its interlocutory judgment of 12 October 2006 (see paragraph 34 above), in which it had stated that if the applicant considered a breach of his duty of secrecy in the interest of his defence he would, if prosecuted, be able to pray the right under Article 6 of the Convention to defend himself in justification. The decision to prosecute, however, belonged to the Public Prosecution Service alone to the exclusion of the courts. 39. The Court of Appeal gave judgment on 1 March 2007. It quashed the judgment of the Regional Court on the technical ground that the Regional Court’s judgment could not be simply endorsed, convicted the applicant and sentenced him to four years’ imprisonment. 40. The evidence relied on was the following: Statement by the applicant at the hearing of the Court of Appeal (12 February 2007), to the effect that: He worked for the AIVD and accordingly had the documents mentioned in the charges at his disposal; Knew some of the targets personally; Had written down names and addresses found in his address book himself; Had one of the documents (a phone tap report) in his home as well as in his office at work; He knew the name of another target. National Police Internal Investigations Department report of 29 September 2004, criminal complaint lodged on behalf of the AIVD by its acting head, to the effect that it has emerged that one of the targets (O.) turns out to be aware that he is an object of investigations. In particular, O. turns out to possess a copy of a document to that effect. The document has been circulated to “tens of persons” within the AIVD. The applicant is mentioned by name. National Police Internal Investigations Department report of 5 October 2004, statement by the AIVD’s acting head to the effect that a secret AIVD document (copy of a telephone interception report) has been found during a search of the applicant’s home. The name of the person who printed it out would normally have been stated on the document but appears to have been removed. National Police Internal Investigations Department report of 5 October 2004, statement by an AIVD official to the effect that a document shown him by police officers is secret and that one of the persons to whom it had been given was the applicant. National Police Internal Investigations Department report of 28 October 2004, statement by an AIVD official relating to investigations undertaken by the AIVD itself on a copy of the hard disk of the applicant’s home computer. This is stated to have revealed information compromising the applicant. In particular, the applicant is reported to have informed a target about AIVD investigations. National Police Internal Investigations Department report of 4 November 2004, statement by an AIVD official to the effect that a fax seized from a target was a transcript of an intercepted phone call prepared by the applicant. The content of the document reveals specific methods used by the AIVD in terrorism-related investigations. The document is identical to a document found in the applicant’s office desk, which bears the applicant’s ID. National Police Internal Investigations Department report of 31 January 2005, statement by an AIVD official to the effect that the leaked information is State secret, sensitive, and relates to ongoing AIVD operations for gathering information on terrorist groups. National Police Internal Investigations Department report of 30 September 2004, from which it appears that the applicant was arrested that day and was found in the possession of an address book. National Police Internal Investigations Department report of 4 October 2004, mentioning that objects (envelopes, diaries, a phone tap report, written notes, floppy discs, compact discs and computers) were seized in the applicant’s home. No further details given. National Police Internal Investigations Department report of 4 October 2004, list of goods seized in the home of a target. National Police Internal Investigations Department report of 6 October 2004, relating the search of the applicant’s office and describing State secret documents found in his desk. One of these is identical to a document found in the possession of a target; another is identical to a document found in the applicant’s home (albeit that the applicant’s ID has been whited out). These documents are identified by the acting head of the AIVD as State secret. A transcript of a page out of the applicant’s address book, bearing names in Arabic script identified by an AIVD expert as the names of targets. A copy of a post-it note found in the applicant’s address book. National Police Internal Investigations Department report of 8 October 2004 to the effect that two (unnamed) AIVD members have classified the list of goods seized in the applicant’s home (paragraph 9 above) as State secret. National Police Internal Investigations Department report of 8 October 2004 identifying persons mentioned in the transcript of the phone tap. National Police Internal Investigations Department report of 12 October 2004 identifying the transcript of the intercepted telephone conversation as identical to a document found in the applicant’s office desk. National Police Internal Investigations Department report of 27 October 2004 to the effect that a document found in a search of the home of a target (C.) was identical to a classified document found in the applicant’s office desk. National Police Internal Investigations Department report of 29 December 2004 relating the arrest of another target (O.), who was found to be in possession of classified AIVD documents. O. stated that these had been sent to a friend of his anonymously by post. A search of the applicant’s hard disk revealed an e-mail inquiring of a friend (S.B.) whether “the information sent to him by post had been of any use.” National Police Internal Investigations Department report of 3 February 2005. A search of the dwelling shared by Mohammed B., who was later convicted of the murder of filmmaker Theo van Gogh, had led to the finding, among the personal effects of Mohammed B.’s flat-mate, of a transcript of a conversation that was part of an AIVD investigation. National Police Internal Investigations Department report of 3 February 2005. The post-it note found in the applicant’s address book bore an address to which it appears that “the aforementioned document” was found to have been sent. National Police Internal Investigations Department report of 18 March 2005. Description of documents found in the possession of the target C., whose house had been searched, and copies of some of which were found in the possession of the target O. All are classified documents already mentioned in other National Police Internal Investigations Department reports. National Police Internal Investigations Department report of 21 January 2005. Interview of an AIVD official responsible for the security of the IT system. No name is given, the official identified only by a number (05/20040094). It emerges that the applicant had access to all the systems needed for his work as an audio analyst and had his own user ID and password. National Police Internal Investigations Department report of 21 February 2005. Interview of witness 05/20040094 to the effect that the applicant, and he alone, prepared a transcript of a conversation later found in the possession of the target H. National Police Internal Investigations Department report of 30 September 2004. Interview of the applicant from which it appears that the applicant has been employed by the AIVD since 2003, receives weekly reports about investigations in progress (which are classified), has signed a promise of secrecy and knows the targets O. and C. who are friends of his brother-in-law. He is aware that O. and C. are investigation targets. National Police Internal Investigations Department report of 2 October 2004. Interview of the applicant, who recognises the transcript of the intercepted telephone conversation, which he admits is classified and should not have left AIVD premises, but which he must have taken home by mistake. The applicant also recognises a note bearing a name. National Police Internal Investigations Department report of 6 October 2004. Interview of the applicant, who recognises the post-it note with the names of three targets (O., K. and H.) and admits that he knows he should not take names of targets home. The applicant also admits that there is no other possible explanation for finding the transcript of the intercepted telephone conversation in his office desk than that he himself put it there. National Police Internal Investigations Department report of 7 October 2004. The applicant identifies two observation reports which are classified. One of them is stated to have been found in his office at work. National Police Internal Investigations Department report of 26 October 2004. The applicant identifies the name of the target H. on the post-it note. National Police Internal Investigations Department report of 8 November 2004. The applicant identifies private e-mail addresses used by him (in his private capacity of agent for a travel agency based in Morocco) and by his wife respectively. National Police Internal Investigations Department report of 8 November 2004. The applicant admits that the transcript of the intercepted telephone conversation bears his user ID. The name H. on the post-it note corresponds to the person H. who is a target of an AIVD investigation; the applicant himself identified him as a target. National Police Internal Investigations Department report of 27 October 2004. A DNA sample is taken from the applicant. National Police Internal Investigations Department report of 9 November 2004. The DNA sample corresponds to DNA found on an envelope. National Police Internal Investigations Department report of 8 November 2004. A further DNA match is found on an envelope. National Police Internal Investigations Department report of 25 March 2005. It is more than one billion times more likely that the DNA match can be explained by the presence of the DNA of the applicant than by the presence of the DNA of strangers. National Police Internal Investigations Department report of 1 October 2004. The target C. states that he received two envelopes containing documents from which it appeared that he and other Moroccan men were being watched. National Police Internal Investigations Department report of 2 October 2004. The target C. relates how he received the two envelopes. The first had been sent to him at his home address. The second had been addressed to him, but sent to the home address of a second person, B1, and handed to him by a third, B2. Official record by the investigating judge of 28 June 2005. Target C. recognises the documents sent to him. National Police Internal Investigations Department report of 27 September 2004. Statement by the target O. O was aware that he was being watched, since his friend C. had received reports by post. Official record by the investigating judge of 28 June 2005. The target O. admits that when arrested he had two sheets of paper in his pocket which he had received from a friend (A.B., the “third person” mentioned in document no. 36). National Police Internal Investigations Department report of 30 September 2004. B1 states that the target C. had received letters mentioning “our names”. One had been sent to his address (the address of the target C.); the second had been sent to the address of B2. The letters had been AIVD documents from which it appeared that all three were being watched. B1 recognised the documents. National Police Internal Investigations Department report of 2 October 2004. B2 recognises the envelope sent to C. from a photocopy. National Police Internal Investigations Department report of 2 October 2004. B2 describes how the second letter, addressed to C. and O., was received at the address of B1. He had opened the letter, which mentioned him and O. He had left it with C. O. had received a copy as well. Official record by the investigating judge of 28 June 2005. B2 recognises the second letter referred to under no. 42. He had taken the letter to C. and given a copy to O. National Police Internal Investigations Department report of 18 January 2005. Statement by S.B. (see under no. 18 above) who admits to knowing the applicant and also that he had received the e-mail from the applicant. In April or May 2004 he had received a transcript of an intercepted conversation from the applicant. Official record by the investigating judge of 21 June 2005. S.B. admits to having received the e-mail from the applicant. He admitted to having received a transcript by mail and recognised it from a photocopy. National Police Internal Investigations Department report of 10 November 2004. Target H. recognises the telephone transcript, which was sent to him at his home address. He suggests that it was sent to him because the other targets still lived with their parents. Official report of the Ministry of Internal Affairs and Kingdom Relations [which is the Ministry responsible for the AIVD], 15 March 2005, with a statement of the (by then) Head of the AIVD to the effect that it is now possible to accommodate the applicant’s defence by offering documents with fewer parts blacked out, but noting that the documents in issue come from a place that is out of bounds. A copy of the Royal Decree designating the AIVD offices out of bounds. The applicant’s letter of appointment as a member of the AIVD (17 October 2003). Official report of the Ministry of Internal Affairs and Kingdom Relations, 10 February 2010, to the effect that the documents found in the possession of unauthorised third parties in the course of the criminal investigation against the applicant concern current AIVD counterterrorist operations and destroying their secrecy endangers national security. Letter from the Head of the AIVD to the investigating judge, 17 June 2005, confirming that those documents concern AIVD counterterrorist operations and endanger the interests of the State by offering an insight into the AIVD’s state of intelligence, sources and operational methods. Official report of the Ministry of Internal Affairs and Kingdom Relations, 28 December 2006, signed by the Head of the AIVD, stating that not blacking out the blacked-out parts of particular documents would harm the State by disclosing the AIVD’s state of intelligence, sources (including one human source) and operational methods, naming the foreign intelligence services with which the AIVD cooperates, and disclosing the nature of information exchanged with those foreign services; identifying targeted organisations and their members (referred to as “Arab nationalist extremists”). Official record of verification by the National Public Prosecutor for Counter-terrorism, 29 December 2006. The prosecutor has personally examined the documents in issue in unredacted form and found the unredacted parts of the redacted documents identical to the corresponding parts of the unredacted documents. Photocopies of the address book with the post-it note and the redacted AIVD documents were attached to the judgment. 41. The Court of Appeal’s reasoning included the following: “In considering whether the positions adopted by the service [i.e. the AIVD] and/or its members as regards the necessary secrecy and in answering the question to what extent restrictions on (among other things) the right to question witnesses can be justified, other issues than that of defining State secrets in a strict sense also play a part. That is apparent from the chapeau paragraph of section 85(1) of the 2002 Intelligence and Security Services Act, which imposes on AIVD officials a duty of secrecy ‘without prejudice to Articles 98-98c of the Criminal Code’. That obligation extends to ‘all information the confidential character of which he knows or ought reasonably to suspect’. Only a ministerial decision as referred to in section 86(2) of that Act can relieve the official of this duty of secrecy if he wishes to act as a witness. The legislature has thus placed the choice in the ‘conflict ... between the interests of State security, which may imperatively require certain sources or information to be kept secret, and the interest of establishing the material truth in, among other things, ... criminal procedure’ [reference to the statutory drafting history of an earlier Act, repealed by the 2002 Intelligence and Security Services Act, omitted] in the hands of the said Ministers. ... The above leads the Court of Appeal to conclude as follows. In addition to State secrets within the meaning of Article 98 of the Criminal Code there are other matters that (in the view of the AIVD) fall under the duty of secrecy of section 85 of the 2002 Intelligence and Security Services Act. The Court of Appeal deduces, on the basis of what is laid down in section 86 of that Act, that that obligation (in principle) prevails over the duties of a witness in a criminal trial. The Court of Appeal’s examination of the question whether an AIVD staff member has rightly invoked his duty [of secrecy] is necessarily detached/marginal. Things are different where it concerns the question whether the right of the defence to question witnesses is materially impaired, it being relevant, in the opinion of the Court of Appeal, whether the statement of that particular witness is used in evidence.” and “The interests of State security, which the 2002 Intelligence and Security Services Act and Articles 98 and following of the Criminal Code are intended to protect, stand in the way of granting a complete exemption from the duty of secrecy as desired by the defence. It is obvious that the said duty of secrecy constitutes, to some extent, a restriction on – normally entirely – unimpeded free and confidential discussion between the suspect and his counsel and that – had it been in force unmitigated – it would prevent a fair trial. As the Court of Appeal held in its interlocutory judgment of 12 October 2006, the duty of secrecy is subject only to the exceptions set out in the 2002 Intelligence and Security Services Act. This means that the situation in which the suspect finds himself in the present criminal case leaves only the avenue left by section 86(1) of the said Act.” and “The Advocate General has given the undertaking, at the Court of Appeal’s hearing of 2 September 2006, that [the applicant] shall not be prosecuted if a violation of the duty of secrecy by [the applicant] is justified by reliance on Article 6 of the Convention, with due regard to the demands of proportionality and subsidiarity inherent pertaining to a legal defence (strafuitsluitingsgrond). The conditions attached to the exemption aforementioned, all of which concern the interest of State security in relation to the interests of the defence in the present criminal proceedings, do not appear unreasonable to the Court of Appeal within the framework of the interests of State security and in the Court of Appeal’s opinion have done no relevant harm to the interests of the defence.” and “The Court of Appeal can only answer the question whether the information in issue is to be considered ‘State secret’ or as information relating to State security by referring to the texts, as contained in the file, of [the documents concerned], to the extent that these documents have been added to the file in censored form as appendices to the AIVD’s official record of 15 March 2005, [an uncensored e-mail relevant to one of the charges] and the explanations to these documents given by the AIVD, especially as contained in the said official record of the head of the AIVD of 10 February 2005 and the official record of the acting head of the AIVD of 28 December 2006, which latter report has been verified by the National Public Prosecutor for Counter-terrorism (Landelijke Officier van Justitie Terrorismebestrijding) as appears from the latter’s official report of 29 December 2006. The Court of Appeal considers itself sufficiently able to determine the nature and character of this information on the basis of these documents, considered in context. For that purpose it is not necessary, in the opinion of the Court of Appeal, to possess or have access to entirely uncensored versions of the information. In this connection, the Court of Appeal has sought, in giving its interlocutory judgment aimed at obtaining a further official report about the type and nature of the State security interest of the information contained in the censored texts portions, to gain optimum understanding of the nature and character of the information. Although the AIVD, in submitting its official record of 28 December 2006 (verified by the National Public Prosecutor for Counter-terrorism), has not entirely kept to the letter of the Court of Appeal’s order, the Court of Appeal has, based on the texts before it, considered in context with the AIVD’s explanations in its official records of 10 February 2005 and 28 December 2006, sufficiently gained the understanding referred to.” 42. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). 43. The Supreme Court gave judgment on 7 July 2009 (ECLI:NL:HR:BG7232). It held that the length of the proceedings before it had been excessive and the applicant was entitled to compensation in the form of a reduction of sentence. It therefore quashed the judgment of the Court of Appeal for technical reasons in order to revise the sentence which it reduced by two months to three years and ten months. It held, however, that the appeal was unfounded. Its reasoning included the following: “5.5. There is no statutory provision for an exception to the duty of secrecy laid down in section 85 of the 2002 Intelligence and Security Services Act in the event that the official concerned is a suspect. Even then the official is bound by his duty of secrecy and he will not be permitted to divulge information in violation of that duty. If, however, the trial judge takes the view, whether or not it be in response to a request or a legal argument (verweer) put forward by the defence, that the interest of the defence requires that information falling under the duty of secrecy is disclosed by the suspect, the court will have to weigh the conflicting interests in the case. The guiding principle (richtsnoer) in so doing is whether, if this information cannot be disclosed after all, there can still be a fair trial within the meaning of Article 6 of the Convention. If the trial court reaches the finding that it is necessary, from the point of view of that Convention guarantee, to take cognisance of that secret information and the handicap for the defence [resulting from not being able to disclose it] is not sufficiently compensated by the procedure followed, it will have to determine – for example, by hearing the appropriate AIVD official or officials on this point – whether the duty of secrecy is to be maintained intact in relation to that information. If that is the case, the conclusion will have to be that there cannot be any fair trial and the prosecution will have to be declared inadmissible (zal de officier van justitie niet-ontvankelijk moeten worden verklaard in de vervolging). 5.6. In so far as the Court of Appeal has been inspired by a procedural framework other than outlined above, it has misinterpreted the law (heeft het blijk gegeven van een onjuiste rechtsopvatting). However, that need not lead to the quashing of the judgment [of the Court of Appeal] for the following reasons. ...” The Supreme Court went on to find that the compensatory measures had been sufficient in the circumstances: the possibility had been offered to hear AIVD officials as witnesses without disclosing their identities, and the Court of Appeal had been sufficiently informed by the information contained in the case file – the uncensored parts of documents, the official explanatory documents submitted by the AIVD, and the checking of the AIVD position by the National Public Prosecutor for Counter-terrorism – to make a proper assessment as to whether the documents in issue were properly classified State secret. | 1 |
test | 001-181078 | ENG | RUS | COMMITTEE | 2,018 | CASE OF ACHILOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. In application no. 4215/17 the applicant also raised a complaint under Article 13 of the Convention. | 1 |
test | 001-170837 | ENG | GRC | CHAMBER | 2,017 | CASE OF IGBO AND OTHERS v. GREECE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Robert Spano | 6. The applicants were or still are detained in Chios Prison, either in pre-trial detention or serving prison sentences. The first to fifth applicants and the tenth and thirteenth applicants were placed in cell no. 9, the sixth to ninth applicants and the eleventh and twelfth applicants were placed in cell no. 5, and the fourteenth applicant was placed in cell no. 3. 7. The fifth applicant was transferred to Korydallos Prison on 10 September 2013, the seventh applicant was released on 29 October 2013 and the ninth applicant was released on 4 September 2013. 8. The applicants submitted that Chios Prison was overcrowded, resulting in a situation where each inmate was allocated approximately 2 sq. m of personal space. The prison consisted of six cells which each had fifteen beds and five mattresses on the floor, and three cells which each had ten beds. As regards the cells in which the applicants were held, their measurements were as follows: cell no. 3 measured 10 sq. m. and accommodated six detainees, cell no. 5 measured 40 sq. m. and accommodated twenty detainees, and cell no. 9 measured 20 sq. m. and accommodated ten detainees. The sixth, eighth and ninth applicants slept on the floor, which was standard practice for other inmates as well. 9. The applicants pointed out that the toilets in the cells were not partitioned off from the rest of the cells, and there was no hot water. Filthiness of the cells, in addition to overcrowding, exposed the inmates to contagious diseases and created various psychological problems, in respect of which no medical treatment was provided. Detainees lacked access to adequate dental care. 10. The applicants stressed that inmates were not sufficiently separated according to their health conditions or according to whether they were in pre-trial detention or serving prison sentences, as was required by the Penal Code. 11. The applicants also contended that they were confined to their cells for sixteen to seventeen hours per day, in the absence of any recreational or educational activities. 12. Meals, which were insufficient and of poor quality, were served in the cells and consumed on the beds. 13. On 29 August 2013 the applicants lodged a complaint with the Prison Board, arguing that the conditions of their detention were very poor, but did not receive any reply. 14. The Government submitted that Chios Prison consisted of nine cells, each furnished with a table, stools, a fridge, cooking stoves, wardrobes and a television. Cells were sufficiently ventilated and heated and had adequate natural light. Additionally, they were regularly cleaned and disinfected. 15. In respect of prison overcrowding, the Government argued that the prison had accommodated 142 inmates at the time the applicants had lodged their application with the Court, only slightly exceeding its capacity of 120 detainees. 16. All detainees had access to adequate medical care provided by the prison doctor. In case of emergency, or when a serious incident occurred, detainees were transferred to Chios General Hospital or Korydallos Prison Hospital in Athens. Those suffering from contagious diseases were held separately or transferred to hospital. The Government provided information showing that some of the applicants had had consultations with doctors in respect of various conditions. 17. There were fifty available places for detainees who wished to work. In addition, detainees had the opportunity to attend educational programmes or other recreational activities which were scheduled from time to time. Most of the applicants participated in some of the educational courses. 18. As regards prisoners’ meals, the Government submitted a menu from a week selected at random to demonstrate that meals were varied. | 1 |
test | 001-150998 | ENG | HUN | CHAMBER | 2,015 | CASE OF BÉLÁNÉ NAGY v. HUNGARY | 3 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 6. The applicant was born in 1959 and lives in Baktalórántháza. 7. In 2001 the applicant’s loss of capacity to work was assessed to be 67 per cent as of 1 April 2001, and she was granted a disability pension (see paragraph 18 below). This assessment was maintained in 2003, 2006 and 2007. 8. Pursuant to a modification of the applicable methodology but apparently without any substantial change in her health, the level of the applicant’s disability was changed to 40 per cent on 1 December 2009. Without envisaging her rehabilitation, the assessment panel scheduled the next check-up of her medical status for November 2012. As a consequence of her 40 per cent level of disability, her entitlement to the disability pension was withdrawn as of 1 February 2010. The applicant challenged this decision in court, but the Nyíregyháza Labour Court dismissed her action on 1 April 2011, notwithstanding an expert opinion stating that the applicant’s condition had not improved since 2007. The applicant was obliged to reimburse the amounts received after 1 February 2010. 9. In 2011 the applicant requested another assessment of her disability. In September 2011 the first-instance authority assessed it at 45 per cent, scheduling the next assessment for September 2014. The second-instance authority changed this score to 50 per cent, with a reassessment due in March 2015. Such a level would have entitled her to disability pension, had her rehabilitation not been possible (see paragraph 19 below). However, this time the assessment envisaged the applicant’s rehabilitation in a time-frame of 36 months, during which time she was to receive rehabilitation allowance. 10. As of 1 January 2012, a new law on disability allowances (Act no. CXCI of 2011) entered into force. It introduced additional applicability criteria (see paragraph 20 below). Notably, instead of fulfilling the service period required by the former legislation, the disabled person must have at least 1,095 days covered by social security in the five years preceding the submission of his or her request. Persons who do not meet this requirement may nevertheless qualify if they had no interruption of social cover for more than 30 days throughout their career, or if they were in receipt of a disability pension on 31 December 2011. 11. In February 2012 the applicant submitted another request for disability allowance. Her condition was assessed in April 2012, leading to the finding of 50 per cent disability. On 5 June 2012 her request was dismissed because she did not have the requisite period of social cover. Rehabilitation was not envisaged. The next assessment was scheduled for April 2014. 12. On 2 August 2012 the applicant submitted a fresh request for disability pension under the new law on disability allowances and underwent another assessment in which the level of her disability was again established at 50 per cent. Rehabilitation was not envisaged. 13. In principle, such a level of disability would entitle the applicant to a disability pension under the new system. However, since her disability pension had been terminated in February 2010 (that is, she was not in receipt of a disability pension on 31 December 2011) and, moreover, she was not in a position to accumulate the requisite number of days covered by social security or to demonstrate an uninterrupted social cover, she was not eligible, under any title, for a disability allowance under the new system. Instead of the requisite 1,095 days covered by social security, the applicant had only 947. 14. Accordingly, the applicant’s disability pension request was refused both by the competent administrative authorities (on 23 November 2012 and 27 February 2013) and by the Nyíregyháza Administrative and Labour Court, on 20 June 2013. 15. As of 1 January 2014, the impugned legislative criteria have been amended with a view to extending the eligibility for disability allowance to those who have accumulated either 2,555 days covered by social security in ten years or 3,650 days in fifteen years. However, the applicant could not meet these criteria either. 16. It appears that currently the applicant lives on aid. 17. Since 2013 the Constitutional Court has examined a number of complaints attacking in essence the same new rules on disability entitlements (decision nos. 3227/2013, 3156/2013 and 3235/2014). The complainants in those procedures raised their constitutional concerns after the final and binding domestic judgments, without applying to the Kúria (Supreme Court) in review proceedings. Although these motions were eventually rejected as inadmissible for other reasons, the Constitutional Court did not consider that, for their constitutional complaints to be entertained, those complainants were required to have approached the Kúria beforehand. | 1 |
test | 001-158477 | ENG | TUR | CHAMBER | 2,015 | CASE OF ŞAKIR KAÇMAZ v. TURKEY | 3 | Remainder inadmissible;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 3 - Prohibition of torture (Article 3 - 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;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The applicant was born in 1973 and is currently serving a prison sentence in Tokat Prison. 6. On 30 September 2001 the applicant was arrested on suspicion of membership of an illegal organisation, namely the Hizbullah. According to the arrest report, signed by four police officers, during his arrest the applicant attempted to swallow some pieces of papers and resisted the police officers who tried to take the papers out of his mouth. 7. On the same day, the applicant was examined by a doctor at the Diyarbakır State Hospital. The doctor noted, on a police document, that the applicant had a widespread bruised area under his left eye, oedema under his right eye, a scratch on his left wrist, red patches behind his left ear and bleeding on his right ear. 8. On 7 October 2001 the applicant was examined by a doctor who diagnosed him with pharyngitis and prescribed him medication. 9. On 8 October 2001 the applicant was questioned at the anti-terror branch of the Diyarbakır security directorate and confessed to his involvement in Hizbullah. 10. On 9 October 2001 at 2.45 p.m. the applicant was sent for a medical examination at the Diyarbakır Health Clinic. In a document of the police directorate in which the applicant’s name was put, the doctor who examined the applicant noted that he had a widespread bruised area under his left eye and small scratches on his left wrist. 11. On the same day, the applicant was questioned by both a public prosecutor and an investigating judge. Before the public prosecutor, the applicant responded to the questions by nodding. The public prosecutor noted that the applicant was unable to speak and therefore could not make statements. Before the investigating judge, the applicant wrote down on a piece of paper that his throat and internal organs hurt and that he was unable to speak. He further noted that he would examine his police statements and the evidence against him in detail and make his defence submissions before the trial court. 12. On the same day the investigating judge authorised the applicant’s detention at the anti-terror branch of the Diyarbakır security directorate for a further period of ten days on the basis of Legislative Decree no. 430 in force at the material time. 13. Later that day, at 9 p.m., the applicant was examined at the Diyarbakır State Hospital. The doctor who conducted the examination stated in a police document that the applicant had a bruise, measuring 2x3 cm, under the left orbital region and was suffering from tonsillitis. 14. On 10 October 2001 the applicant was referred to the emergency room of the state hospital in Diyarbakır, where the doctors considered that he should be examined by a doctor at the otolaryngology department of the hospital. The applicant was subsequently subjected to a number of auditory examinations and at 2.30 p.m. on the same day an otolaryngologist stated, in a letter sent to the hospital by the police, that the applicant suffered from otitis in his right ear and tympanic membrane perforation in his left ear which could have occurred as a result of trauma. The doctor further noted that the applicant suffered from hearing loss. 15. On 18 October 2001 the applicant made further statements to the police. According to the document containing his police statement, he had already made statements concerning his relations with the illegal organisation and he did not wish to make any further submissions as to the content of the documents that he had attempted to swallow during his arrest. 16. On the same day the applicant was once again examined by a doctor at the Diyarbakır Health Clinic. The doctor stated in a letter sent to the hospital by the Diyarbakır security directorate concerning the applicant that the latter looked weak but did not bear any signs of physical violence on his body. 17. On the same day the applicant was transferred to the Diyarbakır prison, where he was detained on remand. 18. On 2 November 2001 and 14 December 2001 the applicant was subjected to medical examinations at the Diyarbakır State Hospital and received treatment for breathing and indigestion problems while detained in the Diyarbakır prison. 19. On 12 October 2001 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court, accusing the applicant of membership of the Hizbullah under Article 168 of the former Criminal Code. 20. The proceedings commenced before the Diyarbakır State Security Court. On an unspecified date, the case against the applicant was joined with another case which was pending before the Van State Security Court and which had been brought against a number of other persons who were charged with membership of the Hizbullah. 21. On 6 May 2003 the Van State Security Court found the applicant guilty of attempting to undermine the constitutional order by force under Article 146 of the former Criminal Code and sentenced him to life imprisonment. On 8 June 2004 the Court of Cassation quashed the judgment of the first-instance court on procedural grounds. 22. In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Therefore, the Van Assize Court acquired jurisdiction over the case. 23. On 11 May 2006 the Van Assize Court sentenced the applicant to life imprisonment for membership of the Hizbullah and for his involvement in activities attempting to undermine the constitutional order by force 24. On 16 May 2006 the applicant’s lawyer lodged an appeal against the judgment of 11 May 2006. 25. On 15 March 2007 the Court of Cassation held a hearing during which the applicant’s lawyer was present and made defence submissions. On the same day, the Court of Cassation upheld the judgment of the firstinstance court in so far as it concerned the applicant’s criminal conviction. 26. On 21 March 2007 the Court of Cassation pronounced its decision. 27. Following the deposit of the decision of the Court of Cassation with the registry of the first-instance court, on 14 June 2007 the Bitlis public prosecutor issued a committal order concerning the execution of the sentence (müddetname). On 21 June 2007 the committal order was served on the applicant. 28. On 24 December 2001 the applicant lodged two petitions with the public prosecutor’s office at the Diyarbakır State Security Court and stated that he had been subjected to illtreatment before and during his detention in police custody. In this connection, he alleged that he had been beaten before he was taken to the hospital on the day of his arrest and that the injuries that he had sustained on his face were the result of those beatings. He further maintained that he had been stripped naked, blindfolded, insulted, threatened, strangled, subjected to electroshocks and suspended by his arms, hosed with pressurised cold water and had his testicles squeezed. The applicant further submitted that the police officers had put pressure on the injuries he had sustained under his eyes with a view to making him suffer. The applicant noted in his petition that he had suffered from tympanic membrane perforation as a result of his ill-treatment. He finally submitted that he had not made a statement before the public prosecutor and the investigating judge on 9 October 2001 as he had been unable to speak due to the ill-treatment that he had suffered at the hands of the police. 29. On 16 January 2002 the public prosecutor at the Diyarbakır State Security Court transferred the applicant’s petition to the Diyarbakır public prosecutor’s office, noting that he did not have jurisdiction to investigate the applicant’s allegations. 30. On 28 January 2002 the Diyarbakır public prosecutor sent letters to the public prosecutor at the Diyarbakır State Security Court and the anti-terror branch of the Diyarbakır security directorate requesting them to submit to him the medical reports issued in respect of the applicant and his police statements. 31. On the same day the public prosecutor also requested the Diyarbakır prison authorities to bring the applicant to his office for his statement to be taken. 32. On 4 February 2002 the Diyarbakır public prosecutor took a statement from the applicant regarding his complaint. The applicant contended that he had been tortured during the first phase of his detention in police custody, that is to say, between 30 September and 9 October 2001. He noted that he had been stripped naked, blindfolded, insulted, subjected to electroshocks and hosed with pressurised cold water on his testicles and his ears, which had resulted in the injury to his ears. He also reiterated his allegation that the officers had put pressure on the injuries that he had sustained to his face at the time of his arrest. He finally complained that between 9 and 18 October 2001 he had been subjected to psychological pressure by the police. 33. On the same day the applicant was examined at the Diyarbakır branch of the Forensic Medicine Institute upon the request of the Diyarbakır public prosecutor. According to the report issued as a result of this examination, there was no sign of physical violence on the applicant’s body. The medical expert however noted that as regards the applicant’s allegations of ill-treatment, he could draft a further report after obtaining the reports issued during and after the applicant’s detention in police custody. 34. On 6 February 2002 the applicant was subjected to a medical examination at the Diyarbakır state hospital as a result of which a report was issued. According to that report, the tympanic membrane of the applicant’s left ear was intact. 35. On 29 May 2002 the Diyarbakır branch of the Forensic Medicine Institute issued a report in respect of the applicant upon the request of the Diyarbakır public prosecutor for an opinion as to whether the applicant could have sustained the injuries noted in the medical reports as a result of ill-treatment. The report noted that there was a contradiction between the report of 6 February 2002, which stated that the tympanic membrane of the applicant’s left ear was intact, and that of 10 October 2001, according to which the applicant suffered from tympanic membrane perforation in his left ear. The medical expert who prepared the report opined that in order to issue a final report, the applicant should be subjected to a medical examination and an enquiry should be conducted. 36. Between 30 July and 26 November 2002 the Diyarbakır public prosecutor sent letters to the authorities of several prisons asking the latter to send the applicant for a medical examination. On each occasion, the prison directors informed the public prosecutor that the applicant had been transferred to another prison. 37. On 19 December 2002 the applicant was subjected to a medical examination of his ears at the Van University Research Hospital upon the request of the Diyarbakır public prosecutor. The report issued in respect of the applicant did not make any reference to a perforation in the applicant’s left ear. 38. On 7 March 2003 the Diyarbakır public prosecutor once again requested the Diyarbakır branch of the Forensic Medicine Institute to prepare a report containing an opinion as to whether the applicant could have sustained his injuries as a result of ill-treatment. 39. On 7 March 2003 a doctor from the Diyarbakır branch of the Forensic Medicine Institute sent a letter to the Diyarbakır public prosecutor informing him that a final opinion could be provided only following a detailed otolaryngological examination of the applicant. 40. On 1 July 2003 the applicant was examined by a doctor at the Van state hospital upon the request of the Diyarbakır public prosecutor. The medical expert who examined the applicant noted that the tympanic membrane of the applicant’s left ear was intact. 41. On 5 February and 22 April 2004 the Diyarbakır public prosecutor requested the Van State Security Court to submit to him a copy of the applicant’s police statements, the arrest and search reports and the medical reports issued in his respect which were in the file of the case brought against him. On 4 May 2004 the president of the Van State Security Court sent a letter to the public prosecutor informing him that the case file was at the Court of Cassation as the appeal proceedings were pending. On 22 August 2005 and 5 January and 20 September 2006 the public prosecutor reiterated his requests as he had not received the documents asked for. On 20 September 2006 the president of the first-instance court, which, in the meantime, had became the Van Assize Court, reiterated his previous reply. On an unspecified date in 2007 the Diyarbakır public prosecutor received a copy of the case file. 42. In the meantime, on 6 April 2004 the applicant sent a letter to the Diyarbakır public prosecutor and asked for information on the outcome of the investigation into his allegations of ill-treatment. Stating that he had not been informed of the progress of the investigation during the previous two years, he submitted that the investigation and his medical examinations focused only on the injury to his left ear, whereas he suffered from other injuries and illnesses as a result of his illtreatment in police custody. The applicant requested that he undergo a thorough examination at the Forensic Medicine Institute. He received no response to his petition. 43. 22 April 2004 the Diyarbakır public prosecutor requested the antiterror branch of the Diyarbakır security directorate to send him the documents pertaining to the applicant’s police custody and information as to the place of duty of the suspected police officers. On 20 May 2004 the antiterror branch of the Diyarbakır security directorate sent the documents and information requested. 44. On 19 October 2004 the applicant maintained before the Van Assize Court that he had lodged a petition complaining about ill-treatment that he had endured in police custody and asked to be informed of the outcome of the investigation initiated into his allegations. 45. On 18 December 2005 the applicant was once again subjected to an auditory examination at the Van University Research Hospital. The doctor who prepared the medical report noted that the applicant suffered from slight hearing loss. 46. On 11 May 2006 the applicant once again requested to be informed of the outcome of the investigation into his allegations of ill-treatment before the Van Assize Court. He received no response. 47. On 26 June 2007 the applicant submitted a petition to the prison administration to be sent to the Diyarbakır public prosecutor’s office. He received no reply. On 23 June 2009 the applicant was informed that his petition had been received and no response had been given. It should be noted that the content of the applicant’s petition is not available in the case file. 48. On 8 August 2007 the Diyarbakır public prosecutor asked the Diyarbakır branch of the Forensic Medicine Institute to provide a report on whether the applicant could have sustained the injuries observed on his body as a result of the use of force by the police. 49. By letters dated 2 October 2007 and 14 May 2008 the public prosecutor further asked the Diyarbakır branch of the Forensic Medicine Institute to provide a medical opinion as to whether the applicant could have sustained his injuries as a result of proportionate use of force and as to whether there had been a difference between the medical reports issued at the beginning and the end of the applicant’s detention in police custody. On 23 May 2008 an expert from the Diyarbakır branch of the Forensic Medicine Institute informed the public prosecutor that the documents in the case file should be sent to the 2nd Section of Expertise of the Forensic Medicine Institute in Istanbul. 50. Meanwhile, on 13 March 2008 the Diyarbakır public prosecutor requested the Dicle University Research Hospital to assign a medical expert to prepare a report containing an opinion on the veracity of the applicant’s allegations on the basis of the medical reports issued in respect of the applicant. 51. On 12 May 2008 a medical expert from the Dicle University Research Hospital sent a report to the public prosecutor’s office. According to the doctor, it was possible that the tympanic membrane perforation in the applicant’s left ear had recovered over time. He also considered that the perforation could have occurred as a result of trauma during the applicant’s arrest or when he had been in police custody. 52. On 26 May 2008 the applicant submitted a petition to the Diyarbakır public prosecutor’s office and requested to be informed of the outcome of the investigation. By a letter dated 3 June 2008 the Diyarbakır public prosecutor informed the applicant that the investigation file had been sent to the 2nd Section of Expertise of the Forensic Medicine Institute and the investigation was pending. 53. On 27 May 2008 the Diyarbakır public prosecutor requested that the applicant be examined by the 2nd Section of Expertise of the Forensic Medicine Institute. Between 15 July and 28 October 2008 the public prosecutor sent letters to the Diyarbakır prison, where the applicant had been transferred, and asked the prison authorities to send the applicant to Istanbul for a medical examination at the Forensic Medicine Institute. 54. On 12 November 2008 the applicant was examined at the Forensic Medicine Institute. During his examination, the applicant stated that he had been beaten at the time of his arrest. He also maintained that he had been illtreated while in police custody. 55. On 31 December 2008 the 2nd Section of Expertise of the Forensic Medicine Institute issued a report. In this report, reference was made to the arrest protocol, dated 30 September 2001, which stated that the police officers had had to use force to apprehend the applicant, since he had resisted arrest. The Forensic Medicine Institute also took into consideration the aforementioned medical reports dated 30 September 2001, 9, 10 and 18 October 2001, 4 and 6 February 2002, 7 March and 1 July 2003 and 12 May 2008. On the basis of these reports and the medical examination of the applicant carried out on 12 November 2008, the 2nd Section of Expertise of the Forensic Medicine Institute established that the injuries observed on the applicant’s body had not been life-threatening, but would have prevented him from continuing his daily activities for fifteen days. It was further indicated that the injuries on the applicant’s face and ear could have been caused by a blow with a blunt object during the applicant’s arrest. The report further stated the applicant had not been subjected to an examination of his ear between 30 September and 10 October 2001 and that the red patches behind the applicant’s left ear noted in the report of 30 September 2001 could have been caused by physical trauma which could have also led to the tympanic membrane perforation in his left ear. The 2nd Section of Expertise finally noted that there was no medical evidence demonstrating that the applicant had been subjected to physical trauma during his detention in police custody. 56. On 15 October 2009 the Diyarbakır public prosecutor decided to close the investigation into the applicant’s allegations of ill-treatment. In his decision, he relied on the report of the 2nd Section of Expertise of the Forensic Medicine Institute and held that the injuries observed on the applicant’s body had been sustained during the scuffle at the time of his arrest. The public prosecutor noted that the injuries observed on the applicant’s person had been caused by the force used to arrest the applicant, which had been in compliance with the Law on the Duties and Powers of the Police (Law no. 2559) and that there was no report or other evidence showing that the police officers had exceeded the limits of their powers on the use of force. The public prosecutor further considered that there was no evidence, such as medical reports or witness statements, demonstrating that the applicant had been ill-treated while detained in police custody. He also stated that the length of the applicant’s detention in police custody had been in accordance with the legislation at the material time. The public prosecutor thus concluded that there was no evidence to support the applicant’s allegation that he had been subjected to ill-treatment while in police custody. 57. On 4 November 2009 the applicant lodged an objection with the Siverek Assize Court against the decision of 15 October 2009. In his petition, the applicant submitted that his medical examination by the 2nd Section of Expertise of the Forensic Medicine Institute had been conducted too late. He also contended that his medical examinations had been superficial. For instance, no examination had been carried out in relation to his allegation of being subjected to electroshocks. The applicant finally submitted that he had had to be taken to the emergency service while in police custody due to his problems with his ear. 58. On 29 March 2010 the Siverek Assize Court rejected the applicant’s objection, holding that there was no evidence showing that the applicant had been subjected to ill-treatment. 59. On 22 May 2002 the applicant lodged an application with the Court alleging a violation of, inter alia, Article 3 of the Convention. The applicant alleged that he had been subjected to ill-treatment during his arrest and while in detention in police custody. 60. On 13 December 2005 the Court, sitting as a Committee of three judges, declared the applicant’s complaint under Article 3 inadmissible for non-exhaustion of domestic remedies. | 1 |
test | 001-142080 | ENG | SVN | COMMITTEE | 2,014 | CASE OF ŠABIĆ v. SLOVENIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Ann Power-Forde;Helena Jäderblom | 5. The applicant was born in 1963 and lives in Novo mesto. 6. The applicant served his prison sentence in the period between 24 November 2008 and 25 March 2010, in the semi-open and closed sections of Ljubljana prison as well as in the open section Ig, Ljubljana prison (the open section). 7. From 24 November 2008 to 22 January 2009 and from 15 July 2009 to 10 August 2009 he was held in the closed section. From 24 November 2008 to 22 January 2009 he was held in cell 3 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). From 15 July 2009 to 16 July 2009 he was held in cell 6 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). From 16 July 2009 to 10 August 2009 he was held in cell 4 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). 8. From 23 January 2009 to 12 July 2009 and from 10 August 2009 to 16 November 2009 he was held in the semi-open section. From 23 January 2009 to 12 July 2009 he was held in cell 138 (third floor) measuring 18.6 square metres (including a separate 1.72 square metre sanitary facility). From 10 August 2009 to 16 November 2009 he was held in cell 145 (third floor) measuring 18.8 square metres (including a separate 1.72 square metre sanitary facility). 9. All the cells in the closed and semi-open sections contained, apart from the furniture, five sleeping places (two bunk beds and one single bed). According to the applicant, five prisoners were being held in each of the cells during his detention. The Government, however, submitted that the number varied between four and five. Each cell had one 107 x 110 cm double casement window, which the prisoners could freely open or close. 10. As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011. 11. As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (see Štrucl and Others, § 86). 12. As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years. 13. From 12 July 2009 to 15 July 2009 and from 16 November 2009 to 25 March 2010 the applicant was held in the open section in cell 2 measuring 40 square metres, which contained six sleeping places. The Government submitted that four prisoners were held in that cell during the applicant’s detention. On 15 July 2009, he was transferred back to the closed section on the ground of abuse of a more liberal prison regime in the open section. 14. In the open section cells were open twenty-four hours per day and prisoners could, except when sleeping, move around freely, inside the open section (in a dining room, classroom, recreation room) and in outdoor areas (a park and sports ground). Further, the prisoners were allowed to exercise for four hours per day, they could do shopping in a shop outside the prison, their visits were unsupervised and their correspondence with people from outside the prison and the use of a telephone were not limited and supervised. The open section had a capacity for twenty seven prisoners in five cells. The prisoners shared sanitary facilities with five showers, five washbasins in the lavatory, three toilets on the ground floor and four toilets on the first floor of the section and a laundry room with a washing machine and a drier, which prisoners could freely use. Prisoners in the open section were also entitled to unsupervised visits outside prison for five hours during weekends, unsupervised leave and annual leave if working in Ljubljana prison. 15. During his imprisonment the applicant had twenty five consultations with a general practitioner and visited a dentist on two occasions. He never requested treatment by a psychiatrist. 16. As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days. | 1 |
test | 001-179418 | ENG | TUR | COMMITTEE | 2,017 | CASE OF KAYA v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal) | Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström | 4. The applicant was born in 1966 and lives in Diyarbakır. 5. The applicant was an officer in the Army. On 1 August 1989, relying on classified investigation reports, the applicant’s contract was terminated and he was dismissed from his office. At the time, he did not have access to the classified reports and there was no remedy against this decision. Subsequently, following the adoption of a new law in 2011, the applicant once again applied to the Ministry of Defence on 7 April 2011, and asked for reinstatement. His request was rejected. 6. On 4 August 2011 the applicant initiated proceedings before the Supreme Military Administrative Court to have the annulment of the decision of the Ministry of Defence. During the proceedings, the defendant party submitted classified documents for the court’s consideration. On 24 April 2012 the Supreme Military Administrative Court rejected the applicant’s case. This decision was served on the applicant on 15 May 2012. | 1 |
test | 001-148636 | ENG | MLT | CHAMBER | 2,014 | CASE OF ANTHONY AQUILINA v. MALTA | 4 | 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) | André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1948, and at the time of lodging the application lived in Milton, Ontario, Canada. 6. Malta has gone through various legislative regimes in order to regulate its housing situation. The first regime came about in 1931 and protected tenants from the termination of their leases. This was followed by the 1944 Rent Restriction (Dwelling Houses) Ordinance which, apart from regulating termination of the lease of dwelling houses, also controlled rents and the initial conditions of contracts. The Housing Act was then enacted in 1949, with the aim of providing a solution to homelessness caused by the Second World War. In 1959 the Housing (Decontrol) Ordinance, Chapter 158 of the Laws of Malta (hereinafter “the HD Ordinance”) was enacted, which provided incentives to encourage landlords to rent their property, and created a special class of dwelling houses free from rent control. 7. The applicant owns a property in Gozo (a maisonette measuring 105 square metres) which he inherited from his parents, his mother having passed away in 1984. 8. On 12 January 1960 the property was registered as a “decontrolled dwelling house” in accordance with Article 3 of the HD Ordinance. At the time, Article 5 (1) of the HD Ordinance provided that the provisions of the “Rent Ordinances” (the Reletting of Urban Property (Regulation) Ordinance, Chapter 69 of the Laws of Malta and the Rent Restriction (Dwelling Houses) Ordinance, Chapter 116 of the Laws of Malta) were not applicable to dwelling houses decontrolled in accordance with Article 3 of the HD Ordinance. 9. In 1970 the applicant’s mother leased the premises to couple C., who are Maltese citizens (born in 1943 and 1950 respectively), for a rent of 35 Maltese Liri (MTL) (approximately 81.50 euros (EUR)) every six months, which was later decreased to the equivalent of EUR 75.70 every six months. At the time, the law permitted her to increase the rent, to refuse to renew the lease or to change its terms on renewal. 10. In 1979 the Maltese parliament enacted an amendment to the HD Ordinance, which provided that the rent restrictions set out in the Rent Ordinances would apply where tenants were Maltese citizens and occupied houses as ordinary residences. It further provided that landlords could not refuse to renew leases, raise their rent, or impose new conditions on renewal, except as provided for by law (see “Relevant domestic law” below). The applicant submitted that the contractual freedom of parties was greatly restricted as a result of the new provisions, in that his family could not charge a fair rent or recover possession of their property, despite the fact that his tenants owned substantial immovable property. 11. By a decision of the Rent Regulation Board (RRB) of 7 July 1998, the rent was further reduced to EUR 65.22 per year. The applicant did not appeal. 12. In 1995 new laws were enacted in respect of new leases which could again be free from rent control. They did not apply to the applicant’s case. 13. In 2009 and 2010 new concepts and provisions were introduced, aimed at gradually eliminating the restrictive regimes applicable to leases entered into before 1995. 14. Thus, while a rent of EUR 65.22 per year had been paid to the applicant since September 1998, a rent of EUR 185 had been paid from September 2010 onwards in view of the above-mentioned amendments. However, the applicant refused to accept any rent as from 2007 and it was duly deposited in court by the tenants by means of a schedule of deposit. 15. According to a court-appointed architect’s evaluation made in the context of constitutional proceedings instituted in 2005 (see paragraph 17 below), the property at that time had a rental value of EUR 2,912 per year. According to an architect’s report commissioned by the Government, the rental market value in 2013 was EUR 2,900 per year, and the sale value EUR 58,000. 16. To date, couple C still reside in the applicant’s property. It does not at present appear that they have any children formally residing with them. 17. In 2005 the applicant instituted constitutional redress proceedings complaining, inter alia, that the 1979 amendments (in particular Article 5 (2) and (3) of the HD Ordinance, which prohibited landlords from refusing to renew existing leases or from raising their rent) had breached his property rights under Article 1 of Protocol No. 1 to the Convention. 18. On 4 June 2008 the Civil Court (First Hall) in its constitutional jurisdiction rejected his complaint. Basing its judgment on domestic case-law relating to the same subject matter, it considered that he remained the owner of the property at issue, which was being used as a dwelling house, that he could still evict the tenants if they failed to fulfil their obligations under the lease, and that although the amount of rent was low, the law provided for an increase in rent every fifteen years, amounting to double the actual rent. The interference with his rights was therefore proportionate given the needs of society. Moreover, his mother had not been forced to lease out the property. 19. The applicant appealed on 25 June 2008. 20. On 3 November 2008 the Constitutional Court dismissed his appeal as being lodged out of time, the statutory time-limit having expired on 16 June 2008. 21. On 29 April 2009 he lodged an application with the Court, relying on Article 1 of Protocol No. 1 to the Convention. 22. By a decision of 10 November 2009 the Court, sitting as a Committee of three judges, declared the applicant’s application inadmissible. It found that he had lodged his appeal with the Constitutional Court out of time. The domestic remedies had therefore not been exhausted as required by Article 35 § 1 of the Convention. 23. In 2010 the applicant instituted constitutional redress proceedings complaining that the 1979 amendments, which prohibited landlords from refusing to renew existing leases or from raising their rent when the tenant was a Maltese citizen, had breached his property rights under Article 1 of Protocol No. 1 to the Convention. He submitted that the amendments introduced in 2009 had not improved his situation, even assuming they (in particular Article 1531C of the Civil Code) applied to the case in question, a matter which was unclear in the domestic context. With a new rent of EUR 185 per year (see Relevant domestic law below), he remained a victim of the alleged violation, not least because he was also prevented from refusing to renew the lease. He cited the then recent case of Amato Gauci v. Malta (no. 47045/06, 15 September 2009), in which the Court had found a violation in analogous circumstances. 24. By a decree of 30 April 2010 the Civil Court (First Hall) in its constitutional jurisdiction ruled that the defendant in the case should be the Attorney General of Malta, not the State of Malta as purported by the applicant. 25. On 15 October 2011 the Civil Court (First Hall) in its constitutional jurisdiction, upholding the objection raised by the third party who joined in the suit (kjamat fil-kawża), rejected the applicant’s complaint on the basis that the matter had already become res judicata by virtue of the decision of 4 June 2008 (see paragraph 18 above). It noted that such a conclusion required three elements, namely the same parties (eaedem personae), the same object (eadem res) and the same cause of action (eadem causa petendi). Moreover, where the arguments raised were different, it had to be seen whether they could have been raised at the time of the principal judgment. In the present case, it considered that there had been no doubt that the requirement of eaedem personae had been met, despite the fact that the applicant had attempted to bring the present proceedings against the State and that the other proceedings had been against the Attorney General, as it was clear that the defendant in both cases was the Maltese Government. The element of eadem res had also been satisfied in so far as the present case concerned the same lease of the same property, with the same tenants and the same circumstances that had led the applicant to institute proceedings the first time round. Similarly, the element of eadem causa petendi had also been satisfied, since the applicant’s applications to the court were to a great extent the same, if not identical, despite the fact that he had made further arguments and submitted that his situation had remained unchanged notwithstanding the 2009 amendments to the Civil Code. The court considered that the changes to the application had not changed the nature of the action, namely a claim that the restrictions on the rent imposed by the law had been disproportionate. This matter had already been dealt with by the court in the first set of proceedings (no. 49/05), where it had decided that a fair balance had been struck by the authorities; it was not therefore open to the applicant to relitigate the matter. The court further held that even though the applicant had argued that despite the 2009 amendments (if they applied at all) he had remained a victim of the alleged violation, there was already a judgment in his respect stating that the law in so far as it applied to his case had not breached his rights, and the more recent amendments had not worsened his situation. Thus, the Civil Court (First Hall) held that there could not have been a breach of his rights even under the new law. Lastly, it concluded that any new arguments put forward by him should have been incorporated into the first set of proceedings. As to the Court’s recent case-law, it considered that the judgment cited did not entitle the applicant to ask for a fresh examination of his case. 26. By a judgment of 24 June 2011 the Constitutional Court upheld the first-instance judgment, considering the appeal to be frivolous and vexatious. | 1 |
test | 001-177077 | ENG | DEU | CHAMBER | 2,017 | CASE OF AXEL SPRINGER SE AND RTL TELEVISION GMBH v. GERMANY | 3 | No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 5. The first applicant company, Axel Springer SE, is a publishing house operated in the legal form of a Societas Europea registered in Berlin. The second applicant company, RTL Television GmbH, is a broadcasting company set up as a private limited company registered in Cologne. 6. On 14 June 2010 the defendant, S., then aged 28, was arrested. The public prosecutor’s office charged him with killing his parents, dismembering their bodies, burning some of the parts, flushing others down the toilet and disposing of the rest by putting them in barrels. S. confessed to the police. Several German newspapers reported on the case. Some published pictures of S., which mostly showed him at a much younger age. 7. The public prosecutor’s office obtained a psychiatric expert opinion in October 2010. The expert concluded that S. was suffering from a schizoid personality disorder at the time when he had committed the offence. 8. The trial against S. began on 11 January 2011 at the Potsdam Regional Court. Photographers working for the applicant companies attended the hearings to take still photographs and make videorecordings of the defendant. 9. Prior to the start of the hearing, the presiding judge informed the photojournalists orally that the defendant’s face would have to be made unidentifiable “in the usual manner” before any images of him were published. 10. According to the applicant companies, the presiding judge had indicated at the beginning of the hearing on 11 January 2011 that anyone who failed to comply with this order no longer needed to show himself at the Regional Court of Potsdam and apply for permission to take photos of future proceedings. The applicant companies submitted a copy of an email of a journalist who attended the hearing confirming the alleged statement of the presiding judge. 11. The Government contested the applicant companies’ assertions that the presiding judge had threatened not only to bar journalists from taking photographs during the proceedings against the defendant, but also from future proceedings before the Potsdam Regional Court. The Government submitted that according to the presiding judge no such statement had been made. 12. S. repeated his confession on the first day of the hearing. 13. By a letter of 12 January 2011 the second applicant company asked the President of the Regional Court to change the presiding judge’s oral order. It pointed out, inter alia, that several unpixelated pictures of S. had been published in different newspapers before. By a letter of the same date the president replied that he had forwarded the letter to the presiding judge for lack of competence. 14. On 17 January 2011 the presiding judge supplemented his order and provided his reasons in writing. The only media representatives who were permitted to take photographs and make video-recordings of S. were those who had previously registered with the court and given an assurance that prior to the publication or forwarding of the material, the face of S. would be disguised by a technical process, for example by pixelisation, so that it would only be possible to use the images in such a form. Journalists were barred from further reporting on the case if they failed to comply with the order. 15. The presiding judge stated in his reasons that he had to balance the public interest in being informed and the personality rights of S. He acknowledged that the crime at issue was very different from “usual crimes” and that permitting only pictures that disguised S. impaired the public’s ability to be informed. However, he held that the order was justified in view of the need to protect the personality rights of S. He reasoned that it was unlikely that the case had caused a sensation throughout Germany. No nationwide television channel besides the second applicant had shown any interest in reporting on it. He stressed the importance of the presumption of innocence, finding that reporting on S. in a way which identified him could have a “pillory effect”. Consequently, according to the presiding judge the personality rights of S., who had never been in the public eye or sought to contact the media and who had expressly requested that his identity be concealed, outweighed the public interest in being informed. Furthermore, the order had already proved to be necessary as there had been individual violations of the judge’s instructions following the first day of the hearing. 16. On 18 January 2011 the presiding judge sent the supplemented written order to a number of journalists, including some who worked for the applicant companies. 17. On 31 January 2011 the applicant companies filed an objection (Gegenvorstellung), requesting the suspension of the judicial order banning the publication of images enabling identification “during the proceedings against (...) S.” (”für die Dauer des Prozesses gegen (...) S.”). The applicant companies stressed the fact that S. had confessed to the crime on the first day of the hearing. 18. On 4 February 2011 the presiding judge upheld the order. He held that the implications of the confession and its credibility could only be assessed at the end of the hearing. 19. Further hearings took place on 20 and 27 January 2011 and on 8 February 2011. On 10 February 2011 the Regional Court delivered its verdict, sentencing the defendant to prison on two counts of murder. 20. On 1 February 2012 the Federal Constitutional Court declined to consider a constitutional complaint by the applicant companies, without providing reasons (no. 1 BvR 381/11). | 0 |
test | 001-144669 | ENG | SVN | CHAMBER | 2,014 | CASE OF BERGER-KRALL AND OTHERS v. SLOVENIA | 3 | Remainder inadmissible;Remainder inadmissible (Article 34 - Victim);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations);No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Access to court) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens | 6. The applicants’ names and dates of birth are listed in annex 2. They are members of the Association of Tenants of Slovenia (Združenje najemnikov Slovenije). 7. In the former Socialist Republic of Slovenia, socially-owned dwellings represented a significant part of the housing stock (230,000 housing units). Approximately one-third of the Slovenian population lived in such housing units at the time. According to the doctrine of “social ownership” (družbena lastnina) introduced into the Yugoslav system in the 1950s, such dwellings were owned by the community, the role of public bodies being confined to management. 8. After the Second World War, private dwellings and other premises passed into State ownership through legislation on nationalisation. At the same time, dwellings were built or purchased by socially-owned enterprises or other public bodies. In both cases the latter allocated them to their employees and other entitled persons, who became holders of a “specially protected tenancy” or “occupancy right” (stanovanjska pravica – hereinafter translated either as “specially protected tenancy”, as suggested by the applicants, or as “occupancy right”, as indicated by the Government) under Article 206 of the then Constitution of the Socialist Republic of Slovenia and the existing legislation. The right to a socially-owned dwelling guaranteed the citizen “the permanent use of the dwelling for his personal housing needs as well as for the needs of his family”. The Housing Act 1982 (hereinafter referred to also as the “ZSR”) provided that once allocated by an administrative decision followed by a contract, a specially protected tenancy entitled the holder to permanent, lifelong and uninterrupted use of the flat against the payment of a fee covering maintenance costs and depreciation. The fee (or rent) was determined on the basis of the construction price of dwellings and the requirements of simple replacement of dwellings, and in accordance with the standards and norms for the maintenance and management of socially-owned dwellings. 9. The Government pointed out that the occupancy right conferred the right to use the socially-owned dwelling only for the purpose of satisfying one’s personal and family housing needs. Its rationale was the economical and efficient use of housing space, meaning that each family should have at its disposal as much space as it needed, and no more. The occupancy relationship could be terminated and another, more appropriate dwelling allocated in the event of a reduction of the number of users of the dwelling (Section 59 of the ZSR). In the Government’s view, this proved that the occupancy right was associated with personal and family needs, and not with a particular dwelling. The concept of family needs was variable and depended on the number of family members. No more than one dwelling could be used at the same time and no one could move into the dwelling without the prior approval of the holder of the occupancy right. The latter was given management entitlements, such as the right and duty to participate in the management of the socially-owned housing. Holders of occupancy rights could exchange dwellings and make alterations to the dwelling, its furnishings and appliances only with the prior written approval of the housing administration (Section 29 of the ZSR). 10. The applicants challenged the Government’s allegation that the specially protected tenancy permitted use of the dwellings for housing purposes only. They observed that the holder of the occupancy right could use the dwelling without restrictions for himself and for the members of his family, did not need any consent to enlarge the number of family members, could use part of the dwelling for business activities and could sublease part of it for an agreed rent. He could modernise the dwelling with the agreement of the housing organisation managing the building; if such agreement was denied – which in practice almost never occurred – he could demand substitution of consent in legal proceedings. The dwellings in question could be sold only to holders of occupancy rights, who could – with few very specific exceptions – exchange their dwellings. Any sales to third persons were null and void. 11. In legal theory and judicial practice the specially protected tenancy was described as a right sui generis. On 26 November 1998 the Constitutional Court delivered a decision (Up-29/98) in which it considered that under the legislation of the former Socialist Republic of Slovenia, the specially protected tenancy enjoyed stronger protection than a purely contractual tenancy right. The legal relationship was not limited in time and was linked not only to the holder of the right, but also to persons living with him. It concluded that, because of the very limited volume of transactions involving socially-owned dwellings, the specially protected tenancy had been more akin to a property right than to a tenancy right. 12. When a holder of a specially protected tenancy died, his or her rights were transferred to the surviving spouse or long term partner (who held the specially protected tenancy jointly) or to a registered member of the family household who was also using the flat. According to the applicants, this also applied if they moved out or divorced. Thus, specially protected tenancies could be passed on from generation to generation. 13. In the Government’s opinion, however, this was not a succession of the occupancy right but rather a specifically regulated transfer of it to one of the users of the dwelling. In this respect, the spouse and long term partner enjoyed a privileged status. Special provisions applied in the event of divorce (Section 17 of the ZSR), and if it considered that none of the users of the dwelling met the conditions for obtaining the occupancy right after the death of the previous holder, the housing administration could request the said users to vacate the premises (Section 18 of the ZSR). 14. The occupancy right could be cancelled only on limited grounds (Sections 56, 58 and 61 of the ZSR), the most important of which was failure by the holder to use the flat for his or her own housing needs for a continuous period of at least six months without good reason (such as military service, medical treatment, or temporary work elsewhere in the former Socialist Federal Republic of Yugoslavia (the “SFRY”) or abroad; see Section 19 of the ZSR). In this case, the users of the dwelling who had been living together with the holder of the occupancy right for a minimum of two years had the same rights as they would have had if the holder had died. Other grounds were inappropriate and detrimental behaviour, failure to pay the fee, full sublease, use of the dwelling by a person other than the holder of the occupancy right and possession of an unoccupied flat suitable for residence. Although inspections were to be carried out to ensure compliance with these requirements, the specially protected tenancy was rarely, if ever, cancelled on these grounds (see Đokić v. Bosnia and Herzegovina, no. 6518/04, § 6, 27 May 2010). In this connection, the applicants pointed out that it was true that in theory holders of a specially protected tenancy could be moved to a substitute dwelling if the dwelling they were occupying was too large for them and the other users with regard to social standards (see the Government’s submissions in paragraph 9 above). However, according to the applicants, this possibility was in practice never used and there was no case-law on the matter. 15. All employed citizens were required to pay a special monthly housing contribution (approximately 4.5 to 6 per cent of their monthly income) to the Joint Housing Fund. The funds thus obtained were used to build and maintain socially-owned flats. The Housing Fund granted benefits (allocation of a flat under specially protected tenancy, or loan to purchase, construct or renovate a dwelling) on the basis of the principles of mutuality and solidarity with those in need. All socially-owned dwellings were part of the Joint Housing Fund and administered by State institutions, municipalities, social enterprises and other legal entities governed by public law. 16. Before Slovenia became independent, the applicants or their legal predecessors acquired specially protected tenancies in socially-owned dwellings which had been expropriated under the legislation on nationalisation. Under the legislation in force prior to 1991, no difference in specially protected tenancy conditions was made between tenants of State-constructed dwellings and tenants of nationalised dwellings. 17. On 25 June 1991 the Republic of Slovenia declared its independence. Among the first reforms enacted were the Housing Act 1991 (Stanovanjski zakon) and the Denationalisation Act 1991 (Zakon o denacionalizaciji), aimed at redressing the wrongs committed after the Second World War. The new Constitution of the Republic of Slovenia (Section 33) guaranteed the right of private ownership. 18. The Housing Act 1991 (hereinafter referred to also as the “SZ”) provided for the transformation and privatisation of socially-owned dwellings. The Joint Housing Fund (see paragraph 15 above) was dissolved and, with few exceptions, the socially-owned dwellings were transferred ex lege into State ownership or into that of local communities or the National Pension Fund. Those dwellings which had become socially-owned property after having been expropriated from private owners were transferred into the ownership of the municipalities (Section 113). 19. The specially protected tenancy was replaced ex lege with a normal lease contract (Section 141). The previous holders of specially protected tenancies or, in the event of their death, their family members living in the flats, were given the possibility of renting the flats for an indefinite period and for a non-profit rent (which covered maintenance, management of the flat and capital costs – Section 147) or of purchasing them on favourable terms, paying an administratively defined price which was calculated on the basis of a discount of 30% (in the event of payment in instalments) or 60% (in the event of one-off payment) off the estimated value (Sections 117-124). 20. According to the applicants, in practice this meant a price of 5-10% of the real market value of the dwelling payable in instalments over 20 years or 5% of that value payable within 60 days. The right to purchase on favourable terms could be transferred inter vivos or mortis causa to close family members. However, previous holders of specially protected tenancy in flats which had been expropriated could only purchase them on favourable terms if the owners agreed to sell them within one year from the restitution of the dwelling (Sections 117 and 125). In that case the 30 or 60 per cent discount (Sections 117 and 119) was offered by the owner, who would then be reimbursed by the municipality. 21. It follows from the above that all previous holders of specially protected tenancies were given the possibility of taking out new leases (to be signed within six months from the entry into force of the Housing Act 1991). However, the applicants contended that these new leases were less advantageous than the specially protected tenancy. In particular, tenants no longer had secured tenancy of their homes since the owners could move them to other adequate flats without any particular justification (Section 54). There were now nine grounds on which tenants could be evicted for misconduct, compared with three previously. The fault-based grounds for termination of the lease were (Section 53 of the SZ): “- if the tenant and any person living with him uses the dwelling counter to the law or the terms of the lease; - if, by the way they use the dwelling, the tenant or any person living with him causes major damage to the dwelling or to common areas, parts, facilities and installations of a multi-dwelling building; - if the tenant fails twice in succession or for two out of the last twelve months to pay rent or costs payable in addition to rent within the time-limit specified in the lease; - if the tenant or any person living with him, by their manner of using the dwelling, frequently or seriously disturbs other residents in their peaceful use of the dwelling; - if the tenant makes changes to the dwelling and fixtures without the prior consent of the owner; - if, in addition to the tenant, a person who is not named in the lease contract uses the dwelling for more than thirty days without the owner’s knowledge; - if the tenant leases out the dwelling without the agreement of the owner or charges a subtenant a higher rent; - if the tenant does not allow access to the dwelling in cases [specified by law]; - if the tenant or any other person who uses the dwelling engages in a prohibited activity there, or a permitted activity in an unlawful manner.” 22. However, before terminating the lease the owner had to give prior written notice to the tenant who was allegedly violating its provisions; no termination was allowed if the inability to pay the rent in full and to entirely fulfil other obligations was due to the social distress of the tenant and the other persons using the dwelling. 23. Without the owner’s permission, tenants could not sublet a flat, renovate it or decorate it. Nor could they bring new people into the flat (Section 53). The owner could renovate the flat at any time and enter it twice a year (Section 44). The tenant could not freely transfer the lease to another family member or exchange the flat. After the death of the original tenant, only the spouse or a person having lived with the tenant in a permanent relationship, or an immediate family member living in the flat, had the right to take over the lease (Section 56). The tenant had to pay the legally regulated non-profit rent (Section 63), which, unlike the fee (see paragraph 8 above), not only covered maintenance costs and depreciation, but also included a sum to offset capital costs and management of the dwelling. 24. The Denationalisation Act 1991 (hereinafter referred to also as the “ZDen”) regulated the denationalisation of property which had previously passed into State ownership through legislation on agrarian reform, nationalisation, confiscation or other forms of expropriation of privately owned properties. Previous owners or their heirs (hereinafter referred to as “previous owners”) were entitled (until 7 December 1993) to claim restitution of the expropriated property. Wherever possible, the property itself was to be returned in natura, including dwellings which had been let under the specially protected tenancy scheme. Where such restitution was not possible, claimants were entitled to substitute property and/or compensation (Section 2). 25. The restitution of dwellings occupied by a tenant did not affect the leases concluded in the meantime, which remained in force (see Section 125 of the SZ and Section 24 of the ZDen). 26. The applicants pointed out that after the enactment of the housing reform, a number of former holders of specially protected tenancies in previously expropriated flats filed requests to purchase the flats. The deadline for filing such requests expired before that for “previous owners” to file restitution claims. Only when it became clear in individual cases (especially in 1994) that denationalisation proceedings had been initiated, were the former holders of specially protected tenancies informed that their requests to purchase had been rejected. 27. Holders of occupancy rights had no part in the denationalisation proceedings to determine the ownership of the property, which meant that they were not notified when a request was filed for the restitution of the dwelling they were occupying. According to the data submitted by the applicants, 37,000 restitution requests had been filed and in the period until the end of 1999 a yearly average of 2,000 to 5,000 decisions had been rendered, which meant a total of approximately 29,000 decisions, out of which only approximately 24,000 became final. Until 1999 approximately 18% of decisions were for restitution in the form of compensation, 27% for restitution of ownership of free dwellings, 44% for restitution of ownership of occupied dwellings and 8% were refusals or rejections of the requests. This meant that by the end of 1999 a substantial portion of denationalisation procedures had not been completed. Initially in such procedures the property was returned to the pre-war owners; however, in the vast majority of cases those owners had passed away, which meant that in order to identify the “previous owners” a complex and time-consuming inheritance procedure was necessary. 28. The Government pointed out that tenants were not party to the denationalisation proceedings because restitution did not affect the tenancy relationship and did not prejudice the tenants’ rights or benefits which had a direct basis in law. Moreover, the existence of a tenancy relationship did not affect the decision on denationalisation and restitution (see Constitutional Court decision no. Up-237/97, point 5). However, tenants could participate if they demonstrated a legal interest, notably an interest in recovering their investments. In this regard, the status of party to the denationalisation proceedings was recognised in respect of: (a) any person who, before 7 December 1991 (date of entry into force of the ZDen), had invested in nationalised real estate, whenever and insofar as the proceedings might lead to a ruling on that person’s rights deriving from the investments concerned, and (b) the entities liable for restitution, which in the case of former socially-owned dwellings usually meant municipalities (Section 60 of the ZDen). 29. The principle of restitution in natura applied also in cases in which the value of the property had increased. Former holders of the occupancy right who had invested in the dwelling could only claim compensation under the law, but not acquire ownership of the dwelling by virtue of such investments. In particular, the occupant could claim total recovery of costs on the condition that the investments had been made prior to 7 December 1991 and that they constituted major maintenance investments and not simple routine maintenance. Upon a judicial action introduced by the tenant, the competent court would appoint a construction expert to assess the value of the property at the time of nationalisation and its value at the time of its restitution; a tenant who could provide evidence of the investments made (they were not required to provide evidence that the community of residents had consented to the investments) could then obtain the difference between the two values of the property (Section 25 of the ZDen). In cases in which a final decision on restitution had already been adopted, a claim for recovery of investments could be filed within one year from the entry into force of the 1998 Act amending the ZDen. 30. The applicants observed that in the event of an increase in the value of the property due to the investments made by the tenant, Section 25 of the ZDen gave three options to the “previous owners”: (a) to request compensation instead of restitution in natura; (b) to request part ownership of the dwelling; (c) to recover the full property and reimburse the tenant. As a rule, the tenants’ requests for reimbursement were examined in sets of proceedings initiated after the denationalisation proceedings, often after the year 2005. However, according to the applicants, the evaluation of the dwellings according to the relevant domestic rules was totally unrealistic, which made the evaluation of the increased value due to new investments unrealistic also. Moreover, only those investments which had increased the value of the dwelling – and not those which had kept the value of the property at the same level since its expropriation – were taken into account. The time-limit for reimbursement of investments was ten years and the parties could reach a friendly settlement on these matters. “Previous owners” frequently made the reimbursement conditional upon the tenants vacating the premises. In the applicants’ opinion, these rules did not guarantee former holders of occupancy rights a fair possibility of recovering the real value of their investments. 31. In the following years, the SZ and the ZDen, as well as the legal acts implementing them, underwent numerous amendments, which on some occasions were more favourable to the tenants, and on others to the “previous owners”. 32. The 1994 amendments to the Housing Act 1991, enacted on 6 April 1994, were more in favour of the tenants. Former holders of a specially protected tenancy who occupied previously expropriated flats which had not been returned to “previous owners” (because no request for restitution had been filed, or the request had been rejected) were allowed to purchase the flats they were occupying (amended Sections 117 and 123). 33. The amended Section 125 further provided that where the dwelling had been returned to the “previous owner”, if he agreed to sell he was eligible for an additional financial reward from public funds (this was the so-called “first model” of substitute privatisation). 34. If the “previous owner” declined to sell the dwelling and the tenant decided, within two years from the restitution, to move out and purchase a flat or construct a house, and if the “previous owner” so agreed, he would pay the tenant compensation amounting to 30 per cent of the value of the dwelling. If, however, the “previous owner” refused this solution, the tenant was entitled to claim the same amount from the entity liable for restitution, which was usually a municipality (see paragraph 28 above). The tenant was entitled to further compensation amounting to 50 per cent of the value, in thirds, from the municipality, the Slovenian Compensation Fund and the Development Fund of the Republic of Slovenia. In addition, the tenant also had the right to a State loan under certain conditions. This was the so-called “second model” for settling the housing issue. 35. The 1994 amendments also introduced a so-called “third model”, where a tenant to whom the “previous owner” was not prepared to sell the dwelling could purchase a comparable substitute flat on favourable terms from the municipality if he decided not to purchase another flat or construct a house (amended Section 125). Under this model, the applicants were in the same position as previous holders of specially protected tenancies in State-constructed dwellings who could not purchase the dwelling they had occupied because of practical and legal obstacles. 36. The applicants noted that the right to purchase established by the amended Section 125 of the SZ was legally directly applicable and was not subjected either to preclusive time-limits or to a statute of limitations. It was a permanent legal option, to be realised on the basis of a unilateral request by the former holder of the specially protected tenancy (Supreme Court decision of 14 January 2010, no. II Ips 370/2007). 37. However, the “third model” was repealed on 25 November 1999 by the Constitutional Court (decision U-I-268/96), which considered that the additional financial burden had unduly restricted the municipalities’ newly acquired ownership rights over dwellings which had previously been socially owned. In the Constitutional Court’s opinion, this restriction could not be justified by the tendency of the legislature to ensure that the previous protected tenants of denationalised dwellings enjoyed a position resembling as closely as possible that of other tenants, in particular with regard to the possibility of purchasing a flat. 38. On 21 March 1996 the Constitutional Court delivered a decision (U-I-119/94) concerning the pre-emption right of tenants having contracts of unlimited duration (Section 18), such as the previous holders of specially protected tenancies. It held that that pre-emption right, already provided for by the previous legislation, did not interfere with the property rights in respect of dwellings subject to original privatisation under the SZ and the ZDen, since the property right had not yet been established at the time of the entry into force of those acts. However, where property rights had been acquired by other means, the pre-emption right interfered with the right of property and was unconstitutional. The dissenting opinion of Judge Lojze Ude was appended to the Constitutional Court decision. 39. Subsequent amendments to the Housing Act 1991, and the new Housing Act enacted in 2003 (hereinafter referred to also as the “SZ-1”), were more favourable to the “previous owners”, who were authorised to raise the non-profit rent by up to 37% in order to cover maintenance costs and other expenses. That increase in the non-profit rent was to be applied only to leases taken out after the amendments entered into force (22 March 2000). However, on 20 February 2003 the Constitutional Court (decision no. U-I-303/00-12) declared this limitation unconstitutional as being discriminatory. It underlined that protecting the status of former occupancy right holders did not mean that the non-profit rent could not change, and that eliminating the discrepancy in the previous system (under which rents did not cover the real cost of the use of a dwelling) could not be deemed to be an inadmissible interference with the terms of the lease contracts. The protection of acquired rights and the principle of non-retroactivity did not protect tenants from increases in rent. The increase in the non-profit rent was thus extended to all the leases that predated the enactment of the 2000 amendments. 40. The Housing Act 2003 increased from nine to thirteen the number of fault-based grounds on which tenants could be evicted from their homes (unauthorised persons living in the flat, violation of the house rules, tenant’s absence in excess of three months, ownership of another suitable dwelling, either by the tenant or by his or her partner – Section 103). However, tenants could avoid termination of the lease by proving that the problem was not their fault or that it had not been possible for them to rectify the problem within the given time-limit (Section 112(6)). The “previous owner” could also move the tenant to another adequate flat (defined in Section 10 as a flat satisfying the housing needs of the tenant and his immediate family members living with him or her) at any time and without any reason; however, this could be done to the same tenant only once and the removal costs were borne by the “previous owner” (Section 106). In respect of the transferability of the lease after the tenant’s death, a request to take the lease over had to be filed within 90 days (Section 109). For this purpose, a relative up to the second generation who had lived in economic community with the former holder of the occupancy right for more than two years on the day of entry into force of the Housing Act was considered to be an “immediate family member” (Section 180). The tenant had a pre-emption right if the flat was for sale. 41. Furthermore, rent subsidies (up to 80% of the non-profit rent) were available to tenants in the event of financial difficulties; socially disadvantaged people could also apply to the municipalities to obtain another non-profit rental dwelling or a temporary solution for their housing needs (Sections 104 and 121). The 2009 Housing Act Amendment introduced Sections 121a and 121b, which provided for the possibility, for people who were paying market rents and had unsuccessfully applied for the allocation of a non-profit rental dwelling, to obtain subsidies (amounting to the difference between the market and non-profit rents). These provisions were aimed at compensating the shortage of non-profit dwellings. 42. The 2003 Housing Act also introduced a “new model” of so-called “substitute privatisation” for former occupancy right holders. Within five years after the enactment of the Act or after the decision on denationalisation had become final, they could exercise their right to purchase another dwelling or to build a house, thus becoming entitled to special compensation (up to 74% of the price of the dwelling – Section 173) and to a subsidised loan for the remaining amount. Entitlement to and level of compensation were determined by the Ministry responsible for housing matters. Tenants who decided to buy another dwelling or build a house were obliged to vacate their rented accommodation no later than one year after receiving the compensation. 43. Furthermore, tenants who did not wish or could not afford to buy a flat could apply to rent a non-profit dwelling (Section 174). The latter was defined as a dwelling rented out by the municipality, the State or a public housing fund or non-profit organisation, allocated on the basis of a public call for applications (Section 87). Under this procedure “tenants of a dwelling expropriated under nationalisation regulations and returned to the previous owner” were awarded a rather high number of points (190), which, according to the Government, offered them good prospects of being given priority and actually being declared eligible. Lease agreements for non-profit dwellings would be concluded for an unlimited period (Section 90). 44. According to information available on the Internet, in 1991 there were some 11,000 housing units eligible for return to “previous owners”. Some 6,300 housing units were returned to ownership in full title, while some 4,700 were returned to “previous owners” while still occupied by tenants who previously had specially protected tenancies. According to the Government, in 2012 some 2,780 such tenants had managed to solve their housing situation by substitute privatisation, that is, by purchasing or building a substitute dwelling with the help of a financial incentive from the State. A further 288 tenants had lodged requests and proceedings were still pending at the time of submission of the Government’s observations. An estimated 1,500 tenants would eventually continue to live in the flats they had previously occupied as holders of specially protected tenancies. 45. The applicants emphasised that at the beginning of the housing reform, out of approximately 650,000 housing units in Slovenia 230,000 were socially-owned dwellings housing approximately one-third of the Slovenian population under specially protected tenancies (see paragraph 7 above). At the time the legislation did not distinguish between expropriated dwellings and other socially-owned dwellings (see paragraph 16 above) and, in general, individuals acquiring occupancy rights did not even know which source the dwelling came from. This was especially true for those who had acquired occupancy rights several decades after the expropriation. The great majority of holders of occupancy rights who had been given the opportunity to purchase the dwellings on favourable terms had availed themselves of this possibility; only a few of them had stayed in the flats on a contractual basis. However, as explained in paragraph 20 above, the possibility to purchase without the “previous owners’” consent was not given to those who were living in previously expropriated dwellings subject to denationalisation (approximately 4,700 properties, covering 2% of all specially protected tenants). According to the available estimates, in February 2009 approximately 1,500 families (most likely those who could not afford to buy a dwelling) had continued to lease their denationalised dwellings, while approximately 3,200 families had vacated the premises and found a solution to their housing needs elsewhere. According to the applicants, for the former category of families relations with the “previous owners” had often been burdened with judicial and personal conflicts. “Previous owners” applied constant pressure through, inter alia, illegal evictions, rent increases or simply poor building maintenance. 46. Since 1995, in his regular annual reports the Slovenian Ombudsman has illustrated the difficulties facing tenants in denationalised flats. In his Special Report of 8 January 2002 on the Situation of Tenants in Denationalised Flats he also made a number of proposals designed to remedy the situation: feasible models for substitute privatisation (greater financial incentives to solve the housing issue, for both tenants and “previous owners”), protection of the duration of leases and definition of the non-profit rent, legal mechanisms for the protection of tenants’ rights, such as free legal aid, improved implementation of the right to pre-empt, realistic evaluation of tenants’ investments for the refurbishment of the dwellings. 47. On 3 February 1998 the Association of Tenants (hereinafter, “the Association”), lodged a “petition” with several State authorities, including the National Assembly, the President of the Republic and the Government. It challenged the Housing Act 1991 and the Denationalisation Act 1991, on the ground that they deprived the Association’s members of their specially protected tenancy rights in a manner incompatible with the Constitution of the Socialist Republic of Slovenia, which was still in force at the time when the two acts were passed in 1991. Instead of the privileged specially protected tenancy, which in the Association’s view was in many respects equal to a property right, tenants were granted leases with a temporary non-profit rent. Moreover, once the dwelling had been taken over by a “previous owner”, that contract became an ordinary lease contract. This effectively deprived the tenants of their property and home. In 1991 approximately 45,000 individuals (previous holders of specially protected tenancies and their families), living in 13,000 flats, were concerned by these measures. They considered themselves victims of the transition, in the same manner as “previous owners” whose property had been taken away under the previous regime. 48. The Association also complained that its members were not given all the rights and benefits that other former specially protected tenancy holders enjoyed, such as the right to purchase the dwelling and to have a permanent lease with a non-profit rent. It argued that tenants who – like all its members – were living in dwellings once expropriated, could not purchase their homes, which were subject to restitution to the “previous owners”, whereas all other previous beneficiaries of specially protected tenancies had that possibility. In addition, “previous owners” of flats returned in denationalisation proceedings were selling them to third parties but not to the tenants, who were facing eviction proceedings. In the Association’s view, the restitution of the dwellings to the “previous owners” deprived the tenants of the right to purchase them and resulted in differential treatment between the two groups of tenants on no reasonable ground. 49. The offending legislation allegedly also failed to provide for proper compensation for the money the tenants had invested in the maintenance and improvement of the dwellings. Moreover, the Association complained that its members did not have locus standi in the denationalisation proceedings which were to rule on the ownership of “their” dwellings. It also criticised the constant increases in the non-profit rent, which in its view was approaching levels comparable to the rents charged on the free market. The Association concluded that privatisation and restitution of previously expropriated dwellings should be achieved by paying compensation to the “previous owners” of the dwellings rather than returning their property, as recommended by Resolution 1096 of the Parliamentary Assembly of the Council of Europe (see paragraphs 87-89 below). It requested that an independent expert commission be set up, that the SZ and the ZDen be amended, that the restitution of property as such be stayed and that the National Housing Programme be supplemented. 50. On 2 April 1998 the Government adopted a decision concerning the petition, with an accompanying opinion. The Government did not agree that tenants were the victims of transition. Regarding the right of previous holders of specially protected tenancies to purchase the dwellings, different factual circumstances had to be taken into account. While in some cases the dwellings had been built with State funds, in other cases they had been expropriated from private owners. These “previous owners” might also claim restitution of, and therefore property rights over the dwellings. This meant that they had priority over the former holders of specially protected tenancy rights. In conclusion, as far as the purchase of dwellings was concerned, the two categories of previous holders of specially protected tenancies were not in a comparable position. 51. On the other hand, with respect to other rights and benefits the tenants had been put on an equal footing with all those previous holders of specially protected tenancies who decided not to purchase their dwellings but to rent them on favourable terms. They were all granted the right to rent the dwellings for an indefinite period for a non-profit rent, even after the “previous owner” took over the flat. This had been upheld by the Constitutional Court. 52. The Government also disputed the objection that the impugned legislation did not take into account the investments the tenants had put into the dwellings. They referred to the relevant provisions of the SZ, which granted former specially protected tenancy holders the right to compensation. The Government pointed out that the needs and expectations of the tenants had to be reconciled with those of the “previous owners” of the dwellings, as well as with the limited financial capacities of the State to provide them with housing on favourable terms. They further acknowledged that the tenants, especially elderly people, encountered certain difficulties in their new situation (pressure to move out or to pay a higher rent), but such circumstances had no foundation in the existing legislation. The Government supported the establishment of an expert commission with representatives of both tenants and “previous owners”. It appears that no other authority took a position with respect to the petition. 53. On 8 May 1998 the Association instituted proceedings against the Government with the Ljubljana Administrative Court, for not initiating the necessary amendments to the SZ and the ZDen. In their view, the legislation in question breached the tenants’ rights under the Constitution and the European Convention on Human Rights, and disregarded Resolution 1096 of the Parliamentary Assembly of the Council of Europe. In particular, the Association repeated the complaints from its petition that the dwellings should not be returned as such, that the tenants had only a limited right to purchase the dwellings, that they did not have locus standi in the denationalisation proceedings and that their investments in the dwellings had not been taken into account. 54. On 3 March 1999 the Administrative Court rejected the complaints, holding that the Government’s decision and the accompanying opinion did not qualify under Section 1 of the Administrative Disputes Act, as then in force, as an individual act or an action infringing the individual’s constitutional rights. 55. On 6 April 1999 the Association appealed to the Supreme Court. 56. On 20 September 2001 the Supreme Court dismissed the appeal and upheld the Administrative Court’s decision of 3 March 1999. 57. On 8 March 2002 the Association lodged a constitutional complaint with the Constitutional Court, challenging the Supreme Court’s decision. It repeated the arguments from the petition and the subsequent court proceedings, and argued in particular that the legislation in issue deprived the tenants of their property and homes. 58. On 11 February 2004 the Constitutional Court rejected the complaint. It upheld the decisions of the Administrative Court and the Supreme Court that the relevant governmental decision and the accompanying opinion could not be challenged in administrative proceedings. In the Constitutional Court’s view, they merely reflected the Government’s policy position with respect to the petition lodged, and were therefore not subject to court review. 59. On 8 March 2002, at the same time as the constitutional complaint (see paragraph 57 above), the Association, representing a group of previous specially protected tenancy holders, also lodged a constitutional initiative for review of the constitutionality of the SZ, the ZDen, the Administrative Disputes Act 1997 and the relevant judicial practice, and their compatibility with international law binding on Slovenia. 60. On 25 September 2003 the Constitutional Court dismissed the constitutional initiative (decision U-I-172/02-40). It acknowledged that the Association, relying on a number of court proceedings initiated by its members, had a legal interest in challenging the existing legislation since it directly interfered with their rights, interests and legal position, but it ruled that the Constitutional Court did not have jurisdiction to examine the compatibility of the disputed legislation with the provisions of the Constitution of the Socialist Republic of Slovenia, which was no longer in force. 61. Relying on the case-law of the European Court of Human Rights, the Constitutional Court went on to say that in any event the specially protected tenancy could not be interpreted as an absolute right to property under Article 1 of Protocol No. 1, guaranteeing the acquisition of a particular dwelling. Nor could it be said that the claimants’ right to a home had been breached under Article 8 of the Convention, since they could remain in the dwellings, with a contract of unlimited duration and for a non-profit rent. In addition, after the tenant’s death, the right of a spouse or a person having lived with the tenant in a permanent relationship, or an immediate family member living in the flat, to take over the tenancy was also guaranteed (Section 56 of SZ). 62. The Constitutional Court had held in its previous decisions that the specially protected tenancy from the former system was a right to be protected by the rule of law. However, in the new system, this right encountered other rights. In transposing the system of specially protected tenancy relations into lease relations, the legislator could not fulfil all the expectations arising from the former socio-economic and political system, which was founded on social property, and not on private property. The rights from the former system could not have remained unchanged and untouched. 63. The State had undergone political and social changes, including the transformation of social property into private property. The challenged legislation and the transformation of specially protected tenancy into simple tenancy rights should therefore be understood as part of these changes. Tenants’ rights were now limited by the rights of the “previous owners” of the dwellings. 64. In particular, the tenants’ right to purchase now competed with the property rights of the “previous owners” of the dwellings. In this conflict of rights, priority was given to the property rights of the “previous owners”. With this argument the Constitutional Court also dismissed the objection that tenants who could not purchase their dwellings because they were subject to restitution to the “previous owners” were discriminated against in comparison with all other tenants, who had the right to buy their dwellings. It held that the factual circumstances of the two groups of tenants were profoundly different. While the rights of one group of tenants had to be reconciled with the rights of the “previous owners” of the dwellings, no such limitation on the rights of the other group of tenants was necessary. The tenants also had a pre-emption right in the event that the “previous owner” decided to sell the dwelling, which could be entered in the land register and was weaker only than the pre-emption right of a co-owner (Section 176 of the SZ-1). 65. As for other rights and benefits, including the right to a non-profit rent, the Constitutional Court considered that all the previous holders of occupancy rights had been placed on an equal footing, regardless of the origin of their dwellings. These rights, in turn, were comparable to the level of protection granted to tenants in other States. General allegations that the legislative definition of the non-profit rent was inappropriate were not sufficient to warrant constitutional review. 66. The Constitutional Court also dismissed the complaint that the tenants did not have locus standi in the denationalisation proceedings. Inasmuch as the proceedings were decisive for tenants’ rights, tenants did have locus standi. In particular, this concerned the tenants’ right to compensation for any money invested in the dwelling, which could be claimed from the “previous owner”. On the other hand, on the basis of such financial investments, the tenants did not acquire a property right or a claim to the property itself in the denationalisation proceedings. 67. As to the restitution to the “previous owners” of expropriated dwellings in which tenants were living, the Constitutional Court had already ruled that the relevant provisions of the ZDen were not contrary to the Constitution. Furthermore, the “previous owners” were not free to enter into any lease agreements with the tenants; they merely took over the existing leases the tenants had signed with the municipalities. Finally, the Constitutional Court dismissed the Association’s allegations that Section 1 of the Administrative Disputes Act as then in force was unclear and contrary to the Constitution. 68. On 21 April 2005 the Supreme Court deliberated in a case, brought by applicant no. 6 (Mr Primož Kuret), concerning the right of a family member to demand a new non-profit lease after the tenant of the denationalised flat in question had died. The Supreme Court reversed the case-law and decided that users of denationalised flats could not demand the continuation of a non-profit lease following the demise of the tenant; in the Court’s view, they were entitled only to a lease, and the “previous owner” should be free to determine the amount of the rent without any limitations. 69. Subsequently, a close family member of a deceased former holder of occupancy rights filed a petition for a review of the constitutionality of this new case-law, and a constitutional complaint. In a decision of 7 October 2009 (no. U-I-128/08, Up-933/08), the Constitutional court held that it was unconstitutional to interpret Article 56 of the SZ (see paragraph 23 above) in such a manner that, after the death of the holder of a protected tenancy, the “previous owner” was obliged to lease it to the family members of the deceased for a non-profit rent. It thus confirmed the 2005 decision of the Supreme Court. However, the Constitutional Court did clarify that the spouse or the long term partner of a deceased tenant at the time of the enactment of the SZ was entitled to continue the lease at a non-profit rent. 70. The applicants observed that this case-law allowed “previous owners” to fix an unreasonably high rent, thereby preventing the family members of the deceased tenant (other than the spouse or the long term partner) from continuing the lease. They alleged that from 2009 onwards a mortis causa transferability of the right to lease had de facto been eliminated. 71. As the file contained no specific examples of individual situations, in September 2008 the Court requested the applicants to submit factual information in respect of the amount of the original rent in 1991 and that of the present non-profit rent, the surface area of the flat, its state of repair and its current market value, as well as a chronological overview of the increases in rent and in the statutory minimum wage. 72. In their reply of 9 November 2008, the applicants gave evidence that they were all original former holders of specially protected tenancies or their legal successors. 73. They stated that the first significant increase (of 100%) in the non-profit rent took place in 1995. At that time, its ceiling annual amount was still 2.9% of the value of the dwelling. Further gradual changes were introduced by the 2000 amendments to the SZ (rent increase of 31%), by the Constitutional Court’s decision and by the SZ-1 (rent increase of 23%). The ceiling amount for the annual non-profit rent was currently 4.69% of the value of the dwelling. They stated that a further rent increase of 43% was foreseen in different municipalities. The non-profit rent paid at the time by the tenants equalled 434.5% of the non-profit rent fixed in 1992. 74. However, the applicants stated that factual information provided by them showed that the non-profit rent in Ljubljana and Maribor was still relatively affordable, as it was below the market rent (see annex 1 – “Table summarising the situation of the individual applicants”). The situation was allegedly different in the countryside, but no concrete information was provided. In certain cases there was no historical data as the documentation no longer existed because of the lapse of time and because the tenants had moved. 75. In 2008, the average market price of property per square metre in Ljubljana city centre ranged between 2,000 and 3,000 euros (EUR) and in Maribor it was between EUR 1,000 and 2,000 per square metre. As to the statutory minimum wage, in 1991 it amounted to 6,000 Slovenian tolars (SIT, nominally EUR 25.03). In August 2003 it was SIT 110,380 (nominally EUR 460.6) and in July 2008 EUR 566.53. 76. The applicants also stated that they had made significant financial investments in the renovation and refurbishment of the dwellings. 77. Five applicants (Mr Kuret, Ms Berglez, Ms Bertoncelj, Mr Milič and Ms Jerančič) had been forced to move out. Mr Kuret was the only applicant who pursued the legal avenues up to the Constitutional Court. His constitutional complaint was dismissed on 6 July 2006 for lack of legal interest, as he had reached a settlement with the “previous owner” on 17 March 2006 (see annex 1 – “Table summarising the situation of the individual applicants”). 78. The other applicants, who still occupied the dwellings, were allegedly under pressure, either through court proceedings or through correspondence with the lawyers representing the “previous owners”. They complained about various forms of chicanery and intimidation. All the applicants had had to seek legal advice. 79. The parties also gave details as to the method of calculating the non-profit rent which was introduced by the SZ. Its level might be agreed upon by the parties to the lease contract, but they had to apply the method provided for by the law and not exceed the maximum permitted level of non-profit rent. This was always a percentage (2.9% for dwellings more than 25 years old) of the administrative value of the flat, which was determined by the housing authorities according to the following formula: Value of the dwelling = number of points x value of the point x usable area x effect of size of the dwelling (corrective factor) 80. The rent for dwellings for which tenancy agreements were concluded with the former holders of occupancy rights could not exceed the rent level charged for dwellings more than 25 years old. The values of the point and the correction factor for surface measurements had always been determined by primary or secondary legislation and as such amended several times. As a general rule, the non-profit rent for newly constructed or renovated flats, of better quality and better equipped, was higher than for older, less well-maintained flats. The non-profit rent was also determined in the light of the state of repair at the time the dwelling was allocated to the tenant, that is, before any investment was made. 81. The Government pointed out that the non-profit rent was a cost-based rent covering the economic costs of a dwelling. It did not include taxes to be paid by the “previous owner” and was meant to cover: - the depreciation of the dwelling (to enable the owner to replace a run-down dwelling after a certain number of years – initially 200, then 60); - the cost of the capital invested; - the management of the dwelling; - investment and routine maintenance. 82. Under the 1991 rules, for previous holders of occupancy rights the annual non-profit rent could not exceed 2.9% of the value of the dwelling. The rules were revised in 1995 for ordinary tenants, bringing the percentage to 3.8% for dwellings constructed after 1991. From March 2000 until December 2004, the percentage was 3.81% for dwellings more than sixty years old and 5.08% for dwellings less than sixty years old. For former holders of occupancy rights or persons with whom the “previous owner” was obliged to conclude a lease contract under Section 56 of the SZ (see paragraph 23 above) the percentage could not exceed 3.81%. 83. The Government observed that the new calculation method had been applied progressively over a span of five years; thus, according to them, for tenants of denationalised dwellings the rent, in real terms, had decreased from 2.9% in 2000 to 2.54% in 2004. 84. The Housing Act 2003 brought the value of the maximum permitted annual non-profit rent up to 4.68% of that of the dwelling, and this notwithstanding the fact that a study ordered by the Ministry responsible for the Environment and Spatial Planning had shown that a rent covering all costs of the use of the dwelling should amount to at least 5.63%. A progressive increase in rents was scheduled up to 31 December 2006 (see Section 181 of the SZ-1 and the Government Decree on the method for calculating rents in non-profit dwellings). As a result, for dwellings less than sixty years old, the non-profit rent was immediately decreased by 8%, from 5.08% to 4.68%; for dwellings more than sixty years old (which were the majority), it increased by 21.80%, from 3.81% to 4.68%; lastly, in the approximately 2,500 denationalised dwellings it increased by 84.20%, from 2.54% to 4.68%. On 1 January 2007, the annual non-profit rent in all buildings amounted to 4.68% of the value of the dwelling. It did not increase any more after that date. 85. The Government also emphasised that the value of the “housing point”, which was based on the annual average price per square metre of constructed non-profit dwellings divided by 320 (average number of points for newly constructed non-profit dwellings), increased from 1.88 German Marks (DEM) in 1991 to DEM 3.75 in August 1996. Non-profit rents increased no further in real terms, but they did increase in relation to the DEM. For dwellings rented after the implementation of the new calculation method introduced in 2000 the value of the point was fixed at DEM 5.39 (and later at EUR 2.63). Each dwelling was given a certain number of points which would take into account the time and quality of construction, the type and quality of joinery elements, floorings, walls, fitted installations, the type and availability of common areas, thermal and acoustic insulation and any negative impacts on the use of the dwelling. 86. According to the SZ-1 (Section 118(8) and (9)) the location of the dwelling could also affect its value. The effect of the location on the level of the non-profit rent could be determined by each municipality and might amount to a maximum of 30% of the rent; however, at the time of the Government’s observations, only two municipalities (Nova Gorica and Mengeš) had adopted provisions in this respect; this meant that in all other municipalities, the location of the building did not affect the rent. | 0 |
test | 001-170608 | ENG | RUS | ADMISSIBILITY | 2,016 | RYMANOV v. RUSSIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. The applicant, Mr Andrey Anatolyevich Rymanov, is a Russian national who was born in 1966 and lived in Podolsk before his arrest. He was represented before the Court by Mr Maksim Rachkovskiy, a lawyer with the Centre of Assistance to International Protection in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyshkin, Representative of the Russian Federation to the European Court of Human Rights. 2. The facts of the case may be summarised as follows. 3. In the summer of 2000, the organised crime division of Moscow’s police department was investigating the activities of a criminal gang implicated in a series of armed robberies in Moscow and the Moscow Region. Police officer A. was in charge of the investigation. He received certain information concerning the gang’s planned targets and its leader, St., through a police informant, S., who had been collaborating with the police since 1996. A. investigated the information and confirmed that St.’s gang was implicated in an armed attack on the manager of an enterprise in the Moscow Region and his driver. 4. During the same period of time, St. came into contact with the applicant, who had been a fellow prisoner with him in the past. St. told the applicant that after he had been released from prison, he had joined a debtcollection business that had been under the informal protection of the police. During their conversation, St. – who was not a police officer – showed a police badge bearing his photo to the applicant. St. also introduced the applicant to S., who was posing as a high-ranking police officer. S. told the applicant that “while you [that is to say the applicant] were serving your sentence, life has changed, and it has become possible and necessary “to do business” under the unofficial protection of the police.” 5. In the autumn of 2000 S. informed A. that St. had contacted him with a view to his identifying potential targets for armed robbery. At around that time A.’s subordinate, G., also had an encounter with an informal acquaintance, Ch. Either after being prompted by G. or of his own volition, Ch. confided to G. that he wanted to rob the office of the company where he worked (“company M.”) because it allegedly owed him salary in arrears. 6. G. reported to A. that company M. had been targeted for an armed robbery. After this information was received, the commanding police officers decided to infiltrate G. into the gang and A. requested S. to transmit that information to St. and to recruit a team of would-be robbers. 7. On 5 November 2000, acting on instructions from A., S. recruited St., a long-term acquaintance of his, to rob company M. St. was not aware of S.’s collaboration with the police. 8. On 1 December 2000 G., Ch., S. and St. met to discuss the details of the planned robbery. Their meeting took place in a restaurant and it was videotaped and audiotaped by the police. During the meeting, Ch. described the plan for the robbery, drew a plan of company M’s office and explained where the cash was stored. 9. On 6 December 2000 St. met with the applicant and asked him “to help collect a debt” from a company in Moscow. He said that the manager of that company had issued a promissory note for money he had received to finance the development of his business and that he had not yet returned the money. St. told the applicant that only the applicant’s presence was needed and that he would pose, together with several other individuals, as creditors of company M. He would be paid 1,500 United States dollars (USD) because the debt was high and because there existed a risk of a conflict with racketeers protecting the company. The applicant agreed and the two planned to meet the next day to carry out the plan. 10. On 7 December 2000 St. and the applicant met with R. and As., who had been recruited by either S. or St., and they all arrived at company M.’s office. After they had arrived S. supplied the group with weapons given to him by G. and they removed the licence plates from their getaway vehicle. Soon afterwards Ch. opened the door to the company’s office from the inside and let the applicant, St., R. and As. in. Once inside, they attacked and injured company employees, taking cash and other valuable items from the victims. After the attack, the group left the crime scene in the getaway vehicle. They met G. and S. and divided the takings. 11. Shortly thereafter, the applicant was arrested and charged with armed robbery. 12. On 28 March 2003 the Moscow City Court examined the applicant’s case. The videotapes and audiotapes of the meeting between G., Ch., S. and St. on 1 December 2000 were played at the hearing. Ch. confirmed that the tapes were genuine. The City Court further dismissed the applicant’s argument that he had only intended to help recover a debt and that he had been incited to commit a crime. The court held that the applicant, St., R., and As. had acted in a well-organised, deliberate and coordinated manner during the robbery, which constituted evidence of a criminal conspiracy between them. It did not find any circumstances indicating that the applicant had been incited by the police to commit a criminal act. Since the applicant had been convicted on two counts of aggravated armed robbery in the past, the City Court convicted the applicant, as an habitual offender, of aggravated armed robbery, as well as of the aggravated unlawful transfer, transport and carrying of firearms, and sentenced him to eight years’ imprisonment and confiscation of property. St., R., and As. were convicted in the same proceedings. 13. The Moscow City Court also convicted A. and G. of abuse of power during the undercover operation. The court found, in particular, that at first the infiltration of G. into the gang had been undertaken in accordance with the applicable law on undercover activities. However, the court established that A. and G. had then in essence authorised a robbery with the use of weapons, thereby putting at risk the lives and well-being of both company M’s employees and the police officers who had participated in the operation. 14. On 6 November 2003 the Supreme Court of the Russian Federation upheld the judgment. | 0 |
test | 001-175668 | ENG | RUS | CHAMBER | 2,017 | CASE OF ANNENKOV AND OTHERS v. RUSSIA | 4 | 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);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 5. The applicants either owned businesses at Voronezh municipal market and rented the market pitches for their businesses, or worked as vendors for these businesses. 6. It appears that in August 2007 the title to the plot of land on which the market was located was transferred from the town to a municipal enterprise and then to a private company, which intended to demolish the market and build a shopping centre. It appears that in 2008 and 2009 court proceedings were ongoing between the prosecutor’s office and the municipal enterprise in relation to the land in question. 7. Disagreeing with this course of action, which would adversely affect their businesses and employment, the applicants and some other people (several dozen in total) decided to remain on the market premises permanently, doing “night shifts”. 8. According to the applicants, on an unspecified date and in a specified manner, the entrepreneurs notified the town administration of their intention to “constantly do night shifts at the market until the matters relating to the legality of the land’s transfer and the demolition of the market [were] settled”. They started their “night shifts” on an unspecified date. 9. On 6 August 2009 the police told the entrepreneurs who had gathered at the market to leave the premises. Some refused to comply in the absence of any court order, and argued that, under their rent contracts, they had a right to remain at the market. 10. On 7 August 2009 some of the applicants (Mr Annenkov, Mr Khripunov, Mr Khavantsev, Mr Finskiy, Ms Suprunova, Ms Zakharova and Ms Guseva) were arrested (see also paragraphs 41-51 below). 11. These applicants were accused of an offence under Article 19.3 of the Federal Code of Administrative Offences (“the CAO”), which punished disobeying or resisting the lawful order of a public official (see paragraph 61 below). The applicants, who were assisted by counsel before the trial court, pleaded not guilty and denied that they had disobeyed or resisted any specific lawful orders from the police, or that they had otherwise breached the public order or endangered public safety. 12. By a judgment of 7 August 2009 a justice of peace convicted Mr Finskiy of the offence and sentenced him to five days’ administrative detention. The court held as follows: “[The defendant] violated the procedure for organising and managing a gathering (собрание); he disobeyed a lawful order issued by police officers in relation to their duties to ensure public order and safety, he also obstructed their exercise of the above duties ... [The defendant’s] guilt is confirmed by the following documents: the record of the administrative offence, a complaint and written statements issued by the market director, written reports by police officers, and statements from witnesses ...” 13. On the same day Mr Khripunov was sentenced to five days’ detention. The court held as follows: “[The defendant] violated the procedure for organising and managing a gathering; he disobeyed a lawful order issued by police officers in relation to their duties to ensure public order and safety, he also obstructed their exercise of the above duties ... N., a witness, made the following statement before this court, ‘on 7 August 2009 a group of entrepreneurs were doing night shifts to prevent the demolition of the market building. Suddenly, police officers arrived and started to grab people and take them to the police station. [The defendant] was also grabbed by the police; he did not show any resistance during this procedure ...’ The court adopts a critical stance in relation to the testimony of this witness, who is the [defendant’s] acquaintance and colleague, because this testimony is refuted by the bulk of the other evidence, namely the officers’ written reports made in their official capacity ...” 14. A judgment, apparently in similar terms, was issued in respect of Mr Khavantsev, who was sentenced to ten days’ detention. 15. As required under the CAO, the applicants started to serve their sentences of administrative detention immediately following the trial judgments in their cases. 16. At the same time, the applicants appealed to the Sovetskiy District Court of Voronezh (hereafter “the District Court”). Mr Khripunov argued that the trial court had not made a proper assessment of the testimonies of eyewitnesses. He and Mr Finskiy argued, inter alia, that they had taken part in a “gathering”, and the Public Events Act did not require that prior notice be given to the competent public authority for this type of public event (see paragraph 66 below). Moreover, in breach of the Act, no written requirement to cease any unlawful conduct had been issued to them or the other entrepreneurs, and the penalty of administrative detention had been disproportionate. 17. Mr Finskiy argued before the appeal court that he had been present on the market premises in the early morning of 7 August 2009, because he had been performing a “duty”. Having heard some noise, he had gone out of the building and had seen other entrepreneurs being arrested; he had started to film the events on his camera but had then been ordered to delete the video and had been arrested. 18. The appeal court examined a written statement from M., the new executive director of the market. He had arrived at the marketplace, but could not get into the office building because a number of entrepreneurs were blocking the entrance by holding hands or linking their arms. Following a request by him for assistance, the police had ordered the entrepreneurs to stop their activity. The entrepreneurs, including Mr Finskiy, had not complied with that order. 19. The appeal court also examined written statements from B., Ma. and L., who provided testimony in the following terms. While passing through the marketplace on the morning of 7 August 2009, they had seen a group of some fifty people. These people had been shouting slogans and calling for people in the town and regional administrations to be dismissed, as well as calling for the violation of public order. The police had told them to stop, but they had not complied with that order. Thereafter, the police had repeated the warning to the most active participant. After he had failed to comply, he had been taken to a police car, while grabbing the officers’ uniforms and trying to run away. 20. Officers S., Y. and F. submitted written reports in the following terms. On 6 August 2009, noting the blocking of the entrance to the office building, they had ordered the people present to disperse. The same thing had happened on 7 August 2009. Approaching one of the most active participants, Mr Finskiy, they had ordered him to stop. After he had refused, they had taken him to the police station. 21. The appeal court heard Ms D., who stated that Mr Finskiy had been trying to film the ongoing events when the police had taken him away; he had not shown any resistance. 22. On 13 August 2009 the District Court upheld the judgment in respect of Mr Finskiy, stating as follows: “The court has no reason to doubt the testimonies of police officers and L., B. and Ma., because they were not previously acquainted with the defendant or other entrepreneurs, and have no reason to give false testimony against him ... The court dismisses the argument that L., B. and Ma. could not be eyewitnesses since the market was surrounded by a wall. Their testimonies indicate that they effectively passed through the marketplace ... The court dismisses the argument that the police acted unlawfully in relation to the entrepreneurs’ presence at a gathering requiring no prior authorisation. As the material in the file and testimonies indicate, the police acted lawfully with the aim of ensuring public order and public safety, because the entrepreneurs were blocking access to the market for employees and had not reacted to lawful orders from the police to stop these actions ... The court adopts a critical attitude in respect of the testimony of D., who tried to help her colleague avoid responsibility for the offence, because this testimony is refuted by the other evidence ...” 23. By a decision of 13 August 2009, in respect of Mr Khripunov, the District Court held: “P., a witness, stated before the appeal court ‘on 7 August 2009 ... people in plain clothes and the police arrived at the market and, following orders from the chief officer of the Sovetskiy police station, started to arrest entrepreneurs without explaining the reasons for such arrests. [The defendant] was also arrested, while showing no resistance or disobedience to any specific orders ...’ The fact that [the defendant] committed the offence is confirmed by: – the record of the administrative offence stating ‘after his violation of the procedure for organising and managing public events, while being arrested, he disobeyed the lawful order of a police officer, grabbed his uniform and tried to escape ...’; – written statements from [three passers-by] who, while passing through the market area, saw some fifty people chanting slogans and calling for the dismissal of the mayor and the governor and for violations of the public order. Despite the police’s order to stop what they were doing, the entrepreneurs refused; thereafter the police approached [the defendant], who appeared particularly active, and again ordered him to stop what he was doing, but he did not respond to this order. While being placed in the police car, he resisted, and threated the officers with violence and prosecution; – [the officers’ written statements in similar terms]: ... Having approached one of the most active men (subsequently identified as the defendant), they warned him against committing offences, but he did not react and refused [to stop]; Finskiy [sic] was thus arrested and taken to the police station. The court dismisses the defence’s argument that [the defendant] lawfully participated in a gathering requiring no prior authorisation, because the police’s actions were lawful and aimed to secure public order and public safety, since the entrepreneurs were blocking the market employees’ access to the building ... The court adopts a critical attitude in respect of the testimony of P., who is the defendant’s colleague and wants to help him, because this testimony is refuted by the bulk of the other evidence.” 24. An appeal decision in similar terms was issued in respect of Mr Khavantsev. 25. Thereafter, learning in late September 2009 that the court decisions in respect of certain other participants in the same events had been quashed on appeal in September 2009 (see paragraph 27 below), on 8 October 2009 Mr Finskiy, Mr Khavantsev and Mr Khripunov lodged applications under Article 30.12 of the CAO for review of the final judgments in respect of them. On 20 November 2009 the Deputy President of the Voronezh Regional Court upheld the lower courts’ decisions. In respect of each defendant, the reviewing judge stated as follows: “I dismiss the defence’s argument that the lower courts’ judges omitted to specify the type of public event in which the defendant had participated, the relevant regulations on such public events, and the specific details concerning the police’s orders to the defendant. It was established by the justice of the peace that the impugned event was a ‘gathering’ ...” 26. By judgments of 7 August 2009 the female defendants in the proceedings and Mr Annenkov were fined. 27. On 2, 8 and 10 September 2009 the District Court set aside the judgments in respect of the female defendants and Mr Annenkov. As regards Mr Annenkov, the appeal court held as follows: “Neither the record of the administrative offence nor the judgment contains references to specific circumstances or actions relating to the corpus delicti of the imputed offence (disobeying the lawful order of a police officer). In particular, neither of the two documents specifies what order was given to the defendant which was then not complied with. Moreover, the judgment does not indicate that the defendant did disobey a lawful order issued by a police officer.” In respect of Ms Guseva, the appeal court held as follows: “It is indicated in the record of the administrative offence that the defendant violated the procedure relating to the organisation and management of demonstrations, meetings and gatherings, and that during her arrest she disobeyed the lawful order of a police officer in relation to his work to ensure public order. The record does not specify what type of public event was being held, which above-mentioned procedure was violated, or what orders relating to maintaining public order during a public event were not complied with by the defendant.” In respect of Ms Suprunova, the appeal court held as follows: “The record of the administrative offence indicates that on 7 August 2009 the defendant violated the procedure relating to the organisation and management of demonstrations, meetings and gatherings, [and that] during her arrest she resisted the lawful order of a police officer and grabbed his uniform and tried to escape ... The record does not indicate what type of public event was being held, which applicable procedure the defendant allegedly violated, what orders relating to maintaining public order during such an event were issued to the defendant by the police, or which of those orders was not complied with.” In respect of Ms Zakharova, the appeal court held as follows: “Neither the record of the administrative offence nor the first-instance judgment refers to specific facts and actions forming part of the offence imputed to the defendant, namely disobeying the lawful order of a police officer ... or the specific order given to her which she failed to comply with. Moreover, it does not follow that what the defendant disobeyed was a lawful order given by a police officer. The record does not specify what the defendant’s violation of the procedure concerning the organisation and management of demonstrations, meetings and gatherings was, or what type of event was being held.” 28. The appeal court ordered the return of the case files to the relevant justice of the peace. Thereafter, the justice of the peace returned the files to the police station, apparently for the documents to be amended or the administrative-offence records to be redrafted. The files were not resubmitted for a retrial. 29. At 5.30 a.m. on 10 August 2009 the police arrested some twenty people at the market, including certain applicants such as Mr Buzov, Ms Garkavets, Ms Zuravleva, Ms Khavantseva and Ms Suprunova. 30. On 10 August 2009 a justice of the peace examined a case against Mr Buzov. The court heard Ms Khr., who stated that a group of people had impeded security guards as they tried to re-establish access to the market building. The police had then arrived and had taken some people to the police station. 31. It appears that during the hearing the applicant, who was assisted by counsel, first sought to have some other witnesses and police officers examined in open court. However, according to the Government, he then withdrew his application. 32. By a judgment of 10 August 2009 Mr Buzov was convicted of an offence under Article 19.3 of the CAO and was sentenced to ten days’ administrative detention. The justice of the peace found as follows: “[The defendant] disobeyed the police officers and did not comply with lawful orders to stop violating public order ... The defendant’s guilt is confirmed by: the administrative-offence record, the police officers’ reports and the written testimonies of witnesses ...” 33. According to the Government, Mr Buzov did not serve his sentence, as he was taken to the cardiology unit of a local hospital on the evening of 10 August 2009. 34. Mr Buzov appealed to the District Court, which held a hearing on 13 August 2009. It heard his lawyer and Ms Yef., who stated that she had seen the applicant making a video recording while he was surrounded by security guards who had torn his clothes. Colleagues had managed to “get him of the security guards’ grasp”, then the police had arrived and had started to push certain entrepreneurs aside. One of the security guards “had given an order to arrest [Mr Buzov]”. Mr Buzov had not disobeyed any orders and had not resisted arrest (see also paragraph 50 below). 35. By a decision of 13 August 2009 the appeal court upheld the judgment of 10 August 2009 in respect of the applicant. 36. Learning in late September 2009 that the court decisions in respect of certain other participants in the events on 10 August 2009 (and 7 August 2009) had been quashed on appeal (see paragraphs 27-28 above and paragraphs 38-39 below), the applicant and his counsel, Ms Gnezdilova, thought that they had a reasonable prospect of success in seeking a further review of the court decisions of 10 and 13 August 2009. In early October 2009 they lodged an application for review of those court decisions. They argued, inter alia, that: the lower courts had not specified what specific order the applicant had disobeyed or whether such an order was lawful under Russian law; the courts had not heard any officers or eyewitnesses who had witnessed the impugned reprehensible conduct on the part of the applicant; and the courts had not specified any particular actions on his part which constituted a breach of public order. 37. On 20 November 2009 the Deputy President of the Voronezh Regional Court upheld the lower courts’ decisions. The judge held as follows: “[The applicant] was part of the group of people who impeded market officials as they tried to gain access to their office building. The guards from a private security company intervened and a fight ensued between them and some participants. These participants did not respond to orders from police officers. The officers required [the applicant], who was one of the most active participants, to cease his unlawful conduct, but he did not respond to this order. Thereafter, he was taken to the police station.” 38. On 10 August 2009 a justice of the peace sentenced several female defendants to a fine. However, on 8 September 2009 the District Court heard appeals from them and set aside the judgments against them. 39. In respect of Ms Zhuravleva, it held as follows: “Article 28.2 of the CAO requires that a record of an administrative offence must describe, among other things, the factual elements relating to the offence and the circumstances in which it was committed. The record concerning the defendant specifies that ... she disobeyed the police officers, did not respond to their lawful requests to stop unlawfully violating the public order, and grabbed the officers’ uniforms while being escorted to the police vehicle, trying to push them away and run away. The record of the administrative offence does not specify which requests relating to public order were addressed to the defendant and were not complied with, or which actions of the applicant such requests related to. The deficiencies of the record make it impossible to establish the defendant’s liability for an administrative offence, and the record must be returned to the [police].” In respect of Ms Khavantseva and Ms Garkavets, the appeal court held as follows: “Neither the record of the administrative offence nor the justice of the peace’s judgment specifies how the defendant violated public order, or which specific order was given by the police in this connection but not complied with by her.” 40. It appears that the files were then returned to the police for the documents to be amended. The files were not resubmitted to the relevant justice of the peace for a retrial. 41. On 10 August 2009 Mr Annenkov’s wife (Ms Shatalova, also an applicant in the present case) lodged a criminal complaint with the Sovetskiy Investigations Unit. 42. Ms Shatalova alleged that Officer Ku., a senior officer at the Sovetskiy police station, had subjected her elderly husband to ill-treatment on 7 August 2009. She sought the institution of criminal proceedings against this officer. She stated as follows: at her request, her husband had arrived at the market in the early morning of 7 August 2009, where she had been doing “night shifts” with others, in order to bring her some warm clothes; Officer Ku. had struck a blow to his chest, causing the man to fall to the ground and sustain a head injury as he hit his head against the corner of a table. 43. Mr Annenkov was examined on 7 August 2009 by a neurosurgeon, a traumatology specialist and a therapist, who concluded that he had a contused wound on his head measuring 6 cm by 0.3 cm by 0.5 cm, some swelling on his upper right arm, and some other injuries (this part of the certificate is not legible). In her submissions before the Court the applicant’s lawyer alleged that Mr Annenkov had sustained a rib fracture. She maintained this assertion following communication of the case to the Government; the latter did not comment on this matter. 44. Unspecified officials carried out an inquiry between 10 and 18 August 2009, looking into whether any police officers had committed the offence of abuse of power (defined at the time as “actions manifestly outside the scope of official duties, causing a significant violation of one’s rights or legitimate interests”), an offence under Article 286 of the Criminal Code. 45. Three other applicants (Ms Guseva, Ms Suprunova and Ms Zakharova) also sought medical assistance on 8 August 2009. Ms Suprunova was diagnosed with concussion and soft-tissue bruises on her head and right arm. Ms Zakharova was diagnosed with soft-tissue bruises on her head and right shoulder. Ms Guseva was examined by a forensic expert, who concluded that she had bruises on the front upper part of her right arm (measuring 2.5 cm by 2 cm, and 2.4 cm by 1.9 cm) and a smaller one on the inner part of her right arm, abrasions on her right and left hip measuring 9 cm by 8.5 cm and 8 cm by 7.5 cm respectively, and abrasions on her right and left ankle joints measuring 6 cm by 3 cm and 2 cm by 1.3 cm respectively. 46. It appears that on an unspecified date Ms Suprunova, Ms Zakharova and Ms Guseva were heard in the context of the pre-investigation inquiry regarding Mr Annenkov. 47. Ms Zakharova stated that she had arrived at the market early on the morning of 7 August 2009 and had seen a police officer dragging Ms Guseva. She had protested to Officer Ku., who had then pushed her. She had fallen to the ground, hitting her shoulder and the back of her head against wooden objects on the ground. 48. Ms Suprunova stated that Officer Ku. had ordered “Take this one” and had started to pull her hair and hands, but other entrepreneurs had tried to shield her. 49. Ms Guseva stated that she had tried to shield Ms Suprunova from Officer Ku., who was pulling her hair. Officer Ku. and Officer Kh. had pushed Ms Guseva against a wall, causing her to fall to the ground and lose consciousness. She had then been dragged along the ground by her hands, and had been kicked in the back by one of the officers as she was placed in the police car. 50. Ms Yef., the applicants’ colleague, made a written statement that in the early morning of 7 August 2009 some thirty people had been at the market. Upon being alerted to the arrival of the police, she had gone out and seen some sixteen police officers, including Officer Ku., a senior officer, who was giving orders and indicating that the officers should “Take this one” or something similar. She had seen an officer twisting Ms Suprunova’s arms and Ms Guseva being dragged along the ground. Then she had seen Mr Annenkov ask Officer Ku. “What are you doing?”, and Officer Ku. had suddenly hit him in the chest, causing Mr Annenkov to fall to the ground and hit against the top of a table. Mr Annenkov had fainted. Officer Ku. had then kicked him on the leg and ordered “Take this one”. 51. Officer Ku. made the following written statement during the inquiry: “On 6 August 2009 the police station received information that in the early morning of 7 August a group of three hundred people might take violent action in order to take possession of the market. At 5.45 a.m. some thirty officers under my supervision arrived at the market to prevent disorder and unlawful actions. We saw some twenty people outside the building who were holding a meeting, chanting slogans and shouting about the regional prosecutor and the governor. The entrepreneurs had previously been issued with warnings against unlawful actions on their part. Suddenly, some five women started to shout and call for help, grabbing our uniforms. We arrested some thirteen people, including the most active perpetrators; all of them resisted during the arrest ... We did use physical force against some people, namely sambo fighting techniques such as twisting hands behind backs. None of the officers, including myself, inflicted any blows ...” 52. On 19 August 2009 an investigator issued a decision refusing to institute criminal proceedings, referring to the statements of several officers, including Officer Ku., and the testimonies of Mr Annenkov, Ms Shatalova, Ms Zakharova and Ms Suprunova. 53. It appears that the refusal of 19 August 2009 was then overruled for unspecified reasons and the inquiry was resumed. Written statements were obtained from some other participants in the gathering. Officer Kh. was also heard and he confirmed Officer Ku.’s earlier statement. 54. On 7 September 2009 the investigator issued a new refusal to institute criminal proceedings against Officer Ku., Officer Kh. or other officers. Having summarised the above testimonies, he concluded as follows: “No sufficient and objective data could be gathered during the inquiry to show that any police officers had committed any criminal offence ... The grievances presented in the complaints are refuted by the testimonies from the officers ... Injuries could have been sustained during the arrest procedure owing to the resistance displayed to the police officers (such resistance later being confirmed by the prosecution for the administrative offences). Furthermore, in view of the important and irremediable inconsistencies in various testimonies, there is no possibility of drawing a truthful conclusion regarding the commission of a criminal offence by Ku., Kh. or others ...” 55. For unspecified reasons, a new refusal to prosecute was issued on 1 October 2009. It was then overruled on 7 October 2009 by the deputy director of the District Investigations Department. He indicated that it was necessary to: assess the available court decisions regarding administrative offences concerning the events on 7 August 2009; identify and interview people who had been kept with the arrested people at the police station; identify and interview all police officers who had been present at the station and had compiled administrative-offence files against the arrested entrepreneurs; and identify and interview all the officers who had been on duty on that date and had been present at the market. 56. Four applicants (Mr Annenkov, Ms Suprunova, Ms Guseva and Ms Zakharova) sought judicial review in respect of the refusal dated 1 October 2009. They learnt at a hearing on 19 October 2009 that the refusal had already been overruled. The case was therefore discontinued. 57. A new refusal was issued on 9 November 2009. 58. On 22 December 2009 the Regional Investigations Department set aside the refusal of 9 November 2009 because it contained an insufficient assessment of the factual circumstances, no plausible explanation for the applicants’ injuries, and no assessment of the legality of the police’s actions. 59. Being unaware of the above decision, one of the applicants sought judicial review of the refusal to prosecute dated 9 November 2009. On 9 November 2010 the District Court discontinued the proceedings because the supervising authority had overruled the impugned refusal decision. 60. According to the Government, a new refusal to prosecute was issued on 19 June 2012. It was overruled on 5 October 2012 by the district prosecutor’s office. Thereafter, a criminal case was opened under Article 286 of the Criminal Code. Apparently, Mr Annenkov and Ms Suprunova at least were interviewed again by an investigator. Mr Annenkov also had a formal confrontation procedure with an unspecified witness who had allegedly seen the applicant stumble and fall to the ground by himself on 7 August 2009. | 1 |
test | 001-142083 | ENG | SVN | COMMITTEE | 2,014 | CASE OF BOKAL v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Angelika Nußberger;Helena Jäderblom | 4. The applicant was born in 1955 and lives in Ljubljana. 5. On 21 July 1997 the applicant instituted civil proceedings before the Ljubljana Local Court against M.P. and N.M. requesting the court to determine the validity of a sale contract concluded between the defendants concerning an apartment in a building partially owned by the applicant and proposing that a note on dispute be entered in the Land Register. She indicated as the disputed value SIT 500,000 (approximately EUR 2,100). 6. On 20 August 1997 the court issued a decision rejecting the applicant’s proposal to enter a note on dispute in the Land Register. The applicant appealed. 7. On 18 February 1998, after several unsuccessful attempts to serve the applicant’s appeal on the first defendant, the court posted the appeal on the court’s notice board. 8. On 4 March 1998 the Ljubljana Higher Court dismissed the applicant’s appeal against the decision of 20 August 1997. 9. Following the applicant’s supervisory appeal to the Ministry of Justice, the court on 18 February 1998 reported to the Ministry that the case could not be given priority. 10. On 21 April 1998 the applicant requested the court to schedule a hearing. 11. On 27 March 2000 the applicant requested the court to give priority to her claims which she had lodged with the court. 12. On 5 April 2000 the court dismissed the applicant’s request. 13. On 16 June 2000 a third party intervener, D.S., who had in the meantime bought the apartment subject to the proceedings from the first defendant, joined the proceedings by submitting a written statement. 14. On 1 March 2002 the third party intervener lodged a supervisory appeal submitting inter alia that since the proceedings were still pending she was unable to dispose of the apartment. 15. The first hearing was scheduled for 13 February 2004 but was subsequently postponed to 26 March 2004. 16. On 18 March 2004 the applicant lodged written submissions raising the value of the claim to SIT 1,100,000 (approximately EUR 4,600). 17. On 26 March 2004 the first main hearing was held. The court adopted a decision, modifying the value of the claim as requested by the applicant. 18. On 11 May 2004 the applicant lodged a request for an interim order. 19. Between 9 April 2004 and 4 June 2004 three further main hearings were held. On the latter date the court issued its judgment partially upholding the applicant’s claim. The decision was served personally on the applicant and the second defendant and to the first defendant and the third party by posting it on the court’s notice board. 20. On 27 September 2004 the applicant lodged an appeal against the decision. 21. On 7 December 2005 the Ljubljana Higher Court returned the file to the first instance court instructing the court that the first defendant should be served the documents related to the appeal in accordance with Section 145 of the Civil Procedure Act and that the court should also decide on the applicant’s request for an interim order. 22. On 6 January 2006 the Ljubljana Local Court requested the applicant to pay the court’s fees and supplement her proposal to issue an interim order. 23. On 3 March 2006 the judgment of 4 June 2004 and the applicant’s appeal were served on the first defendant by posting them on the court’s notice board. 24. On 20 March 2006 the Ljubljana Local Court dismissed the applicant’s request for an interim order. The applicant appealed. 25. On 21 June 2006 the Ljubljana Higher Court dismissed the applicant’s appeals against the judgment of 4 June 2004 and the decision of 20 March 2006. The applicant lodged an appeal on points of law. 26. On 23 October 2008 the Supreme Court rejected the applicant’s appeal on points of law on procedural grounds. It held that the Ljubljana Local Court wrongly applied the Civil Procedure Act in allowing a modification of the disputed value at a later stage of the proceedings. It therefore considered as the disputed value the value that had been indicated by the applicant in her claim and accordingly concluded that therefore the disputed value had not reached the threshold for lodging an appeal on points of law. The applicant lodged a constitutional appeal. 27. On 26 November 2009 the Constitutional Court dismissed the applicant’s constitutional appeal. The decision was served on the applicant on 1 December 2009. | 1 |
test | 001-164950 | ENG | RUS | COMMITTEE | 2,016 | CASE OF KOCHIYEV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings. The applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-164453 | ENG | POL | CHAMBER | 2,016 | CASE OF ZIEMBIŃSKI v. POLAND (No. 2) | 3 | Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1944 and lives in Kłomnice. 6. The applicant is proprietor and editor-in-chief of the local weekly newspaper “Komu i Czemu”, published in the Radomsko and Bełchatów Districts. 7. In issue no. 33 of 18 August 2004 the applicant published an article entitled “Elegantly wrapped dung” (“Łajno – elegancko opakowane”). It read, in so far as relevant: “A poser is someone who does everything to produce external effects by his conduct, speech and, in particular, with the populism he preaches. He is a numbskull posing as the people’s tribune. The only panacea, or universal cure, for such a person is to recognise his intentions and take up a bloodless fight using arguments. An argument against any kind of tricks by a poser or populist will be always a counterargument based on reality, logic and the opportunity to put one’s intentions into practice. I remember when, not so long ago, the author of the proposal to develop a quail farm as a panacea against rural unemployment had a go at me in an accommodating local newspaper, accusing me of malice, a willingness to discredit every good idea, and mindlessness leading to nasty mental disease and many other irreversible disorders of the mind. At the same time he declared that he would continue doing his job, that is, condemning farmers to breeding nice little birds in order to collect their eggs. His boss considered the quail business very important, because it would eliminate the need for viagra. There has not been a sideshow like it in the Radomsko District for a long time. So the time is approaching when pilgrimages of men from all over Poland, and maybe even the European Union, will come to Radomsko to taste quail eggs and later begin procreating. I wonder who has gone mad in the district, and why mad ideas, supported by even madder arguments, can be accepted by our officials. But no matter. Every dull boss can be convinced by any rubbish. Once more I want to authoritatively and responsibly declare that neither quail breeding, nor mushroom growing, nor Eternit [a registered trademark for fibre cement], which suddenly seems to have dropped out of the picture, will solve the unemployment problem in the villages of our region. And I will continue calling the actions of dim-witted officials and their dull bosses pretentious and populist, and no numbskull will convince me that I am wrong. ...” 8. The applicant went on to describe in general terms a local economic development programme, which had been presented to him by a businessman. He finished his article with the following paragraph: “This is not a venture of the quail variety by some smart poser or populist who is able to sell his dull bosses dung nicely wrapped in words. And he actually sells it.” 9. On 8 March 2005 M.D., the mayor of the Radomsko District (starosta), G.D., the head and spokesperson of the district’s marketing department, and K.H., an employee of that department, lodged a private bill of indictment against the applicant with the Radomsko District Court. In respect of the impugned article, they accused him of defamation committed through the mass media under Article 212 § 2 of the Criminal Code. In particular, they alleged that the copious use of words such as “numbskull”, “dull boss”, “dim-witted official”, “poser” and “populist” (“palant”, “nierozgarnięty szef”, “przygłupawy urzędnik”, “pozer”, “populista”) had defamed them as local government officials. The statements had lowered them in public opinion and undermined the public confidence necessary for the discharge of their duties. 10. The private prosecutors sought an order requiring the applicant to publish an apology in the weekly newspaper. They further sought reimbursement of their legal costs and payment by the applicant of 5,000 Polish zlotys (PLN) to a charity. 11. The Radomsko District Court ruled that it did not have jurisdiction in the case, and transmitted the private bill of indictment to the Piotrków Trybunalski District Court. The trial court held two hearings. 12. On 8 February 2006 the Piotrków Trybunalski District Court gave its judgment. It held that the use of the words “numbskull”, “poser” and “dimwitted official” in respect of K.H., and the use of the words “dull bosses” in respect of M.D. and G.D., had amounted to insult (zniewaga) committed through the mass media, within the meaning of Article 216 § 2 of the Criminal Code. The court convicted the applicant under that provision and ordered him to pay a fine of PLN 10,000 (approximately 2,630 euros (EUR)). It also ordered him to reimburse the private prosecutors’ costs (PLN 900, approximately EUR 236) and the costs of the State Treasury (PLN 1,000, approximately EUR 263). 13. As to the facts, the court observed that, since March 2004, the applicant’s newspaper had been publishing articles which were critical of M.D., the mayor of the Radomsko District, and his officials. The newspaper was particularly critical of K.H.’s initiative to develop quail farming in order to tackle the impoverishment of the local population. K.H. was an official in the district’s marketing department. G.D., the head of the marketing department, was also involved in the implementation of this project. In April 2004 the applicant had published an article in which he had made ironic remarks about K.H.’s initiative. In June 2004 a journalist at the same newspaper had published a detailed article on the same subject. The conflict between the applicant and the private prosecutors had intensified with each successively published article. 14. The court further noted that, in his article entitled “Elegantly wrapped dung”, the applicant had again written about the quail farming. Being aware of the publicity which the initiative promoted by K.H. and G.D. had received, the applicant had decided once again to mock the two officials, as well as their superior, M.D. He had referred to K.H., the author of the initiative, as a “poser”, “numbskull” and “dim-witted official”, while the idea of quail farming had been referred to as “nicely wrapped dung”. According to the applicant, this kind of “product” had been sold to “dull bosses”, that is, first G.D. and then M.D., the mayor of the district. 15. The trial court rejected the applicant’s argument that the impugned article had been a simple weekly column in which any similarity to actual persons had been purely coincidental. It found that the article in issue had been part of a campaign carried out by the newspaper against the private prosecutors. They had not been mentioned by name, but they had been easily identifiable on account of the publicity generated by the quail farming project and the earlier articles published by the applicant’s newspaper. The court established that there was no doubt that the words “numbskull”, “dimwitted official” and “poser” had referred to K.H., and the term “dull bosses” to M.D. and G.D. 16. With regard to the applicant’s criminal responsibility, the trial court noted that a journalist had the right to criticise the actions of public officials, but was not entitled to use media in a manipulative way to wage private wars. The latter behaviour was not only unethical and unprofessional, but also incompatible with the role of the media, which was to serve the State and society. The trial court further held: “The fair criticism and objective coverage, free from personal emotions, which is desired in journalism, gave way to the private interest of the defendant, pursued through expressions which, in common understanding, remain offensive and disrespectful. It is difficult not to agree with the position that the word “numbskull” (“palant”) in the analysed context, although its literal meaning is legally irrelevant, fulfils all the criteria of insult within the meaning of Article 216 of the Criminal Code. Of an equally offensive character are the terms “poser”, “dim-witted official” and “dull boss”. It would be hard to find a person who would not feel offended by similar epithets, especially if formulated in the press. Incidentally, it should also be noted that the word “dung” used in the title of the article has a cruder equivalent, and undoubtedly that equivalent was meant to describe K.H.’s contribution to the development of local entrepreneurship, which was accepted without reservation by his “dull bosses”. “Dull” meaning not sharp, unintelligent, intellectually retarded. However, the court found no grounds to hold that the impugned words had the effect of lowering the private prosecutors in public esteem, or undermining the public confidence necessary for the discharge of their duties as local government officials. Accordingly, it would not be justified to classify the applicant’s acts as coming under Article 212 § 2 of the Criminal Code. The quoted statements were rather harmful to the private prosecutors’ perception of their dignity, and such, in the court’s view, was the defendant’s intention. By using insulting words in respect of the district officials, Maciej Ziembiński intended to derive satisfaction from doing them moral harm. By doing so in a newspaper, he fell within the scope of Article 216 § 2 of the Criminal Code, acting unlawfully, reprehensibly, and, in the absence of circumstances capable of precluding or mitigating his guilt, also culpably.” 17. The trial court noted that the present case involved a conflict between constitutionally guaranteed freedom of speech and the right of each citizen to have his reputation protected. However, it found that the applicant’s acts had constituted a blatant abuse of freedom of speech and professional ethics. The court observed that his acts and motivation had been reprehensible, since he had been settling a private conflict with the officials and transgressing basic professional standards. 18. As regards sentence, the court found that,, it would be disproportionate to impose a prison sentence, and that a fine would be the most appropriate penalty. It imposed a fine of PLN 10,000, which it considered proportionate to the gravity of the offence and the degree of the applicant’s guilt. 19. The applicant appealed. He contested the factual findings of the firstinstance court, in particular that his article had concerned the private prosecutors personally. He argued that the impugned article had presented in a sarcastic light people who achieved personal gain by pretending to work, and their dull bosses who accepted such practices. The applicant emphasised that criticism of the quail farm project as a solution to a decline in agriculture in the region had been entirely legitimate. Lastly, he submitted that public figures such as M.D., the district mayor, and other officials had to accept harsh criticism of their activities. 20. On 18 April 2006 the Piotrków Trybunalski Regional Court (“the Regional Court”) upheld the first-instance judgment. It ordered the applicant to pay PLN 1,000 (approx. EUR 256) in respect of the costs of the appeal proceedings. 21. The Regional Court held that the lower court had correctly established the facts of the case. It endorsed the trial court’s findings that the words used in the article had been insulting and harmful to the private prosecutors’ dignity. It further held that, although fair criticism of public authorities and officials was socially desirable and legally accepted, the protection afforded by law did not extend to the use of insulting words which offended human dignity. 22. The judgment was served on the applicant on 29 May 2006. | 1 |
test | 001-157524 | ENG | POL | CHAMBER | 2,015 | CASE OF KRASNODĘBSKA-KAZIKOWSKA AND ŁUNIEWSKA v. POLAND | 3 | No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 5. The applicants were born in 1942 and 1943 respectively and live in Warsaw. 6. The applicants are legal successors of the former owners of a property in the vicinity of Warsaw, called Willa Janówka, composed of a number of plots owned by several individuals. 7. In 1971 the then owners of the property, including E.P., the applicants’ mother, were obliged by an administrative decision to transfer their land to the State Treasury without compensation within the framework of a larger expropriation scheme. 8. On 30 December 2005 the Local Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze w Warszawie) gave a decision concerning the applicants and three other persons, legal successors of the other former owners expropriated by the 1971 decision. It declared that that decision had been issued in flagrant breach of the law in force at the material time. The parties were further informed that the corrective decision gave rise to a compensation claim on their part for damage caused by the original unlawful decision. 9. On 28 August 2006 the applicants sought compensation for damage caused by the decision given in 1971. 10. On 15 May 2009 the Warsaw Regional Court allowed the applicants’ claim and awarded 64,487 Polish zlotys (PLN) to each of them, corresponding to the value of the expropriated land. It held that the conditions determining civil liability in tort, namely a tortious event which caused damage and the establishment of a causal link between the event and the damage, were met in the case. In respect of tort committed by the State Treasury and caused by unlawful administrative decisions compensation could be sought only after a subsequent decision declared that the original administrative decision was unlawful. Such a corrective decision (decyzja nadzorcza) had been given in the applicants’ case in 2005 (see paragraph 8 above). 11inter alia, Article 160 of the Code of Administrative Procedure and enacted Article 417 1 12. The defendant State Treasury, represented by the mayor of Warsaw, appealed. 13. On 26 November 2009 the Warsaw Court of Appeal examined the appeal and dismissed the applicants’ claim. It endorsed the findings of fact made by the lower court as to the existence of pecuniary damage and the causal link between the 1971 decision and that damage. However, it was of the view that the provisions concerning the State’s civil liability in tort should have been interpreted differently by the first-instance court, in particular as to the determination of the prescription period. The court observed that under the communist regime it was practically impossible, essentially for political reasons, to vindicate claims originating in unlawful administrative decisions or to seek compensation from the State Treasury for damage in tort caused by such decisions. The earliest date on which it was possible to do so was 4 June 1989, when the first partially free parliamentary elections were held in Poland. It was from that date that the prescription period of ten years provided for by Article 442 of the Civil Code started to run. The applicants should have availed themselves of the available remedy, namely they should have obtained a decision declaring the original expropriation decision unlawful prior to 4 June 1999 when the ten-year prescription period came to an end. 14. The applicants appealed on points of law. They argued that the contested judgment was in breach of Article 77 of the 1997 Constitution in so far as it guaranteed the right to compensation for damage caused by the State. Neither the damage caused by the 1971 decision nor its unlawfulness were in dispute between the parties. They further submitted that the case raised a significant legal issue in so far as there were divergent strands of case-law regarding the interpretation of legal provisions governing the State’s civil liability for administrative decisions made prior to 1 September 2004 and declared unlawful after that date. These differences in the judicial approach to similar cases, both as to the determination of the beginning of the prescription period and as to its length, had a decisive influence on the outcome of compensation cases brought by victims of unlawful administrative decisions and on the applicants’ case. 15. On 21 October 2010 the Supreme Court, sitting in camera as a single judge, refused to hear the applicants’ appeal on points of law, holding that it did not raise any significant legal issue. 16. Parallel to the applicants’ case, A.C., a successor of another owner expropriated by the same expropriation decision given in 1971 and covered by the same corrective decision of 30 December 2005 (see paragraph 8 above), sought compensation in civil proceedings for damage caused by the original decision. She lodged her claim with the Warsaw Regional Court on 30 August 2006. 17. By a judgment of 30 September 2010 the Warsaw Regional Court allowed her claim and awarded her compensation in the amount of PLN 110,187, corresponding to the value of the plot of land owned by A.C.’s legal predecessor. It recounted briefly the divergent views expressed by the civil courts, including the Supreme Court, in cases concerning claims for pecuniary damage caused by administrative decisions declared unlawful after 1 September 2004. It noted that the manner in which the provisions concerning the State’s liability in tort for unlawful administrative decisions were interpreted had given rise to serious difficulties and differences of opinion in judicial practice. It disagreed with the view expressed in certain judicial decisions that the ten-year prescription period for bringing compensation claims before the courts had started to run when the unlawful decision had been given, but its running was subsequently stayed until 4 June 1989. The Regional Court was of the view that the three 18. On 5 September 2006 R.W., another legal successor of the original owners, brought a compensation case before the Warsaw Regional Court, claiming compensation from the State Treasury, represented by the mayor of Warsaw, for damage originating in the 1971 decision. He also referred to the corrective decision of 30 December 2005. 19. By a judgment of 10 July 2012 the Warsaw Regional Court allowed his claim and awarded him PLN 82,988, corresponding to the value of the land concerned. The court stressed that it was not in dispute that the original administrative decision had been unlawful. Nor was it in dispute that that decision had caused damage to the claimant. The court referred to the resolution given by the Supreme Court on 31 March 2011 (see paragraph 27 below). It shared the view expressed by the Supreme Court in this resolution that it was not justified to interpret the applicable provisions in a way imposing on the applicant an obligation to seek a declaration of unlawfulness of the original administrative decision within ten years after 4 June 1989. | 0 |
test | 001-144800 | ENG | SVK | ADMISSIBILITY | 2,014 | ĎURAČKA v. SLOVAKIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos | 1. The applicant, Mr Peter Ďuračka, is a Slovak national, who was born in 1960 and lives in Bratislava. He was represented before the Court by Mr B. Jablonka, a lawyer practising in Bratislava. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 30 October 2008 the Supreme Court quashed a first-instance judgment convicting the applicant of an offence. In its judgment the Supreme Court convicted the applicant of fraud. The Supreme Court also quashed a sentence which had been imposed in a different set of proceedings in 2007 and which the applicant had then been serving. It imposed a consolidated five-year prison term and a fine on the applicant. The applicant attended the hearing and the judgment became final upon its delivery on 30 October 2008. 5. On the same day the Supreme Court ordered that the applicant start serving his prison term immediately. On 3 November 2008 the order was received by the prison where the applicant was detained. 6. The Supreme Court’s judgment was served on the applicant twice. A receipt signed by the applicant indicates that the Supreme Court served the judgment on him on 10 December 2008; a second receipt indicates that the Bratislava Regional Court (which dealt with the case at first instance) served the Supreme Court’s judgment on the applicant on 12 December 2008. The Regional Court also served the judgment on the applicant’s lawyer on 10 December 2008. 7. On 10 February 2009 a senior judicial officer at the Bratislava Regional Court issued a decision to take into account, for the purpose of serving the consolidated prison term imposed by the Supreme Court, the period in which the applicant had been remanded in custody from 8 August 2004 to 27 January 2005 as well as the period from 21 May 2007 to 3 November 2008, when he had served a prison sentence imposed on him in a different set of criminal proceedings in 2007. 8. Following a complaint by the applicant, a judge rectified the above-mentioned decision on 23 March 2009. In particular, the judge noted that the applicant had started serving the sentence imposed by the Supreme Court on 30 November 2008. The period during which he had been serving a different sentence as from 21 May 2007 and which was to be taken into account as regards the term of the consolidated sentence had therefore ended on 30 November 2008. The Regional Court judge’s decision was served on the applicant on 30 March 2009. 9. On 27 February 2012 the applicant lodged an appeal on points of law against the Supreme Court’s judgment of 30 October 2008. The proceedings are pending. 10. On 12 February 2009 the applicant posted a complaint to the Constitutional Court. With reference to the criminal proceedings that had led to his conviction and detention, he alleged that his rights had been breached by the police, the prosecuting authorities and the courts, as well as by the administration of the prison where he had been detained. 11. In particular, the applicant alleged that his rights under Article 6 § 1 of the Convention had been breached, on a number of grounds, in the criminal proceedings leading to his conviction. The Supreme Court had delivered its final judgment no. 4 To 2/2008 on 30 October 2008. The applicant stated that that judgment had been served on him through the Bratislava Regional Court on 12 December 2008. 12. The applicant further alleged that Article 5 § 1 of the Convention had been breached in that he had been detained without any legal grounds from 30 October to 3 November 2008, because the order imposing the service of the prison sentence which the Supreme Court had issued on the former date had been delivered to the prison on the latter. The applicant claimed that he had lodged a complaint in that respect immediately after he had established that fact in the file. Lastly, the applicant asked the Constitutional Court to appoint a lawyer to assist him in the proceedings. 13. The Constitutional Court rejected the complaint on 27 May 2009 as having been lodged outside the statutory time-limit of two months. With reference to the case file, it held that the Supreme Court’s judgment with reasons had been served on the applicant in prison on 10 December 2008. The time-limit had thus started to run on 11 December 2008 and had expired on 11 February 2009. However, the applicant had posted his complaint on 12 February 2009, that is belatedly. That conclusion was also relevant in respect of the applicant’s allegation that his rights had been breached before the above-mentioned judgment of the Supreme Court. 14. The Constitutional Court’s decision stated that in those circumstances it was not necessary to decide on the applicant’s request for the appointment of a lawyer. The decision was served on the applicant on 8 October 2009. 15. Section 53(3) of the Constitutional Court Act 1993 provides that a complaint to the Constitutional Court can be lodged within a period of two months from the date on which the decision in question has become final and binding, or on which a measure has been notified, or on which notice of other interference has been given. As regards measures and other interferences, this period commences when the plaintiff could have become aware of them. 16. The Constitutional Court has held that in cases where a final decision in the context of criminal proceedings is to be served on the person concerned, the time-limit of two months under section 53(3) of the Constitutional Court Act 1993 starts to run on the date of its service on that person, regardless of the date of its service on his or her lawyer (for example, decision file number IV. ÚS 131/08 of 17 April 2008, with further references). | 0 |
test | 001-145783 | ENG | EST | CHAMBER | 2,014 | CASE OF JÜSSI OSAWE v. ESTONIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1979 and lives in Tallinn. 6. On 29 June 2005 the applicant and O., a Nigerian national, married in Copenhagen, Denmark, where they were living at that time. 7. Since 1 November 2005 they have lived apart. According to the applicant, in 2006 she initiated proceedings for dissolution of the marriage in Denmark. By a decision of 2 November 2007 the Copenhagen City Court decided to grant the applicant separation from O. – which in Danish law is not identical to a divorce, since the spouses remained legally married. According to the decision O. was thought to be in Nigeria; he had been summoned to court by a public notice but had not appeared. It appears that the marriage between the applicant and O. has not been officially dissolved. 8. In September 2008 the applicant moved to Estonia. On 4 October 2008 she gave birth to a daughter, A., whose father, according to the applicant, was D. When registering the birth, the applicant was told by the officials of the municipality that since she was married, her husband O. would be registered as the child’s father. According to the applicant this was done despite her objections. 9. On 28 September 2009 the applicant lodged a claim with the Harju County Court seeking a declaration that the entry in the birth register concerning her daughter’s father was incorrect. She provided the court with a notice from the Copenhagen population register about O.’s registered address but added that in fact O. no longer lived there and she did not know his actual address. She asked the court to serve the summons on the defendant by a public notice. 10. By a decision of 15 December 2009 the County Court declined to proceed with the examination of the claim. It noted that the applicant had paid 1,000 kroons (EEK) (approximately 64 euros (EUR)) in State fees instead of the applicable fee of EEK 5,000 (EUR 320). The County Court gave the applicant a thirty-day time-limit to pay the remaining part of the fee. It also gave the applicant the same time-limit to find out where O. currently lived. The court noted that in accordance with the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), in filiation cases parties had to appear in court in person and they also had to be summoned personally. Accordingly, the court could not proceed with the claim without having information about the defendant’s address. The court noted that in view of the fact that the defendant was a Nigerian national probably living in Denmark, it was likely that the defendant had to be heard in a court in the place of his residence in line with the provisions of EU Council Regulation no. 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. However, for that it was necessary to ascertain where O. was residing. The court noted that it was the plaintiff’s obligation to find out where O. actually lived; it considered that the applicant’s efforts in this respect had not been sufficient. It referred to the fact that O. was the applicant’s husband and that divorce proceedings were pending before a Danish court, and concluded that the applicant had better chances of ascertaining O.’s whereabouts, for example through his acquaintances, relatives and colleagues. 11. On 30 December 2009 the applicant requested the County Court to declare unconstitutional the provisions of the Code of Civil Procedure related to the State fee and the requirement that the defendant be summoned and that he appear in court in person. She also informed the court of her intention to request information from the Danish police as to the defendant’s residence and asked for an extension of the time-limit to rectify the deficiencies in her claim indicated by the County Court in its decision of 15 December 2009. 12. By a decision of 12 February 2010 the County Court dismissed the applicant’s request concerning the alleged unconstitutionality of the provisions of the Code of Civil Procedure. It acceded to the applicant’s request for the extension of the time-limit. 13. It appears that the applicant did not inform the County Court of whether she had made any inquiries about O.’s whereabouts to the Danish authorities or of the results of any such inquiries. 14. On 16 April 2010 the County Court declined to entertain the case since the applicant had failed to eliminate the deficiencies indicated in its earlier decisions. The applicant did not lodge an appeal against that decision. 15. In the meantime, on 18 March 2010, the applicant lodged a new claim with the Harju County Court seeking the establishment of her daughter’s filiation from D., a British national living in the United Kingdom. She asked the court to order that a DNA test be carried out with the assistance of the British authorities. The applicant supplied the court with D.’s and his parents’ addresses. 16. On 20 April 2010 the County Court refused to examine the claim. Referring to the Supreme Court’s case-law (judgment of 12 September 1996, case no. 3-2-3-20-96), the County Court found that it was not legally possible to establish the child’s filiation from D. without the entry in the birth register, according to which her father was O., having been declared incorrect beforehand. The claims could not be examined simultaneously. 17. The applicant appealed. On 17 June 2010 the Tallinn Court of Appeal dismissed the appeal. 18. The applicant appealed to the Supreme Court, which decided not to examine the appeal on 8 September 2010. | 0 |
test | 001-174967 | ENG | RUS | COMMITTEE | 2,017 | CASE OF GORDEYEV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms) | 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 that they had been denied an opportunity to appear in person before the court in the civil proceedings to which they were parties. | 1 |
test | 001-164434 | ENG | NLD | CHAMBER | 2,016 | CASE OF ÖZÇELİK v. THE NETHERLANDS | 3 | 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);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1959 and lives in Enschede. 6. On 21 May 2010 the applicant was convicted of shoplifting. The Almelo Regional Court (rechtbank) imposed the measure of placement in a Persistent Offenders Institution (inrichting voor stelselmatige daders) for the duration of two years on him. It took into account the statements of different police officers and probation officers who had had direct contact with the applicant. From these statements it appeared that the applicant was a drug addict who would not voluntarily cooperate with treatment plans. The Regional Court further decided that the measure would be reviewed six months from the date the judgment became final (5 June 2010). 7. On 1 December 2010 the Regional Court reviewed the measure and decided not to terminate it, because it was deemed that there was still a high risk of the applicant reoffending. The applicant appealed against this decision on 6 December 2010, but on 19 April 2011 the Arnhem Court of Appeal (gerechtshof) dismissed the appeal. 8. On 19 May 2011 G.D., the applicant’s personal case officer, issued a progress report about the applicant, containing, amongst other things, the following: “[The applicant] is currently residing in FPA De Cederborg. The placement is progressing reasonably well. (...) If the measure should be terminated, [the applicant] will immediately find himself in a situation where he has no income, housing or daily activities. The risk of reoffending is consequently high. To lower the risk of reoffending the measure should be continued.” 9. On 9 June 2011 the Regional Court decided to prolong the measure further, holding that there was a considerable likelihood that the applicant would reoffend after his release. 10. The applicant lodged an appeal against that decision on 15 June 2011. On 8 November 2011 counsel for the applicant made inquiries with the Court of Appeal about the progress of the appeal and requested that its examination be given priority. Prior to the hearing before the Court of Appeal, counsel for the applicant requested in a letter of 18 November 2011 that, for the benefit of the applicant, an interpreter be present who spoke Aramaic or Assyrian, and he gave the name of an interpreter who spoke the correct language. 11. On 12 December 2011 a hearing took place before the Court of Appeal. It appeared that the applicant was unable to understand the interpreter who spoke Assyrian. With the applicant’s agreement, the case was adjourned for a maximum period of three months to allow counsel for the applicant to put written questions to certain of the applicant’s counsellors. It was also determined that case officer G.D. should be heard as an expert witness and that an interpreter speaking Aramaic should be present at the next hearing. 12. After a period of three months had elapsed, counsel for the applicant inquired with the Court of Appeal into the progress of the proceedings on 13 March and again on 2 April 2012. The proceedings were resumed on 10 May 2012, when a hearing took place. On that occasion case officer G.D. declared the following: “[The applicant] is no longer addicted to substances. The risk of reoffending is maximally reduced at this moment. The parole board has made several attempts to include [the applicant] in a treatment plan, but unfortunately this has not been sufficiently achieved. The clinical features of [the applicant] play an important role in this, but Cederborg [the institution] could have signalled earlier that there were no further possibilities to treat [the applicant]. The measure has contributed to the protection of society since [the applicant] is no longer addicted, thus reducing the risk of him reoffending. [The applicant] is now residing in a halfway house and has been placed on the waiting list for sheltered accommodation.” 13. It would appear that sheltered accommodation became available for the applicant on 11 May 2012. 14. On 16 May 2012 the Court of Appeal delivered its decision, holding, amongst other things, the following: “No violation of Article 6 ECHR The Court of Appeal considers that in the present case it cannot be said that the appeal was dealt with speedily within the meaning of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It took more than ten months after the appeal was lodged before it was dealt with on the merits. Unlike counsel [for the applicant], the court is of the opinion that the decision to accept that a violation of the Convention has occurred in itself constitutes sufficient satisfaction for the outrage to his sense of justice. Termination The Court of Appeal has held that the execution of the measure has not been sufficiently expeditious in all stages. The Court of Appeal deems that the difficult progress of the measure cannot only be attributed to [the applicant] and finds that FPA De Cederborg could have signalled the difficult progress of the measure earlier. Having regard to the fact that [the applicant] currently has accommodation where he can stay as well as a prospect of placement in appropriate sheltered accommodation where he can also stay if the measure is terminated, and the fact that partly due to this the risk that the termination of the measure will lead to endangerment, nuisance and degradation of society is small, the Court of Appeal considers that continuation of the measure is no longer necessary.” | 1 |
test | 001-181276 | ENG | RUS | COMMITTEE | 2,018 | CASE OF M.K. v. RUSSIA | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Article 5-4 - Review of lawfulness of detention) | Dmitry Dedov;Luis López Guerra | 4. The applicant, a Syrian national, was born in 1993 and currently resides in Khartoum, Sudan. 5. On 24 April 2015 the applicant arrived in Russia, being in possession of a study visa. He enrolled in the Izhevsk State Technical University and had his registered residence in the town of Izhevsk. His visa expired on 26 April 2016. 6. On 4 May 2016 the applicant applied for refugee status alleging the risks to his life and safety in the light of the on-going conflict in Syria. The request and the subsequent appeals were dismissed by the Russian migration authorities and the courts. 7. On 8 June 2016 the applicant was arrested and put in detention by the migration authorities. 8. By a judgment of 9 June 2016 the Oktyabrskiy District Court of Izhevsk found the applicant in breach of migration rules, an offence under Article 18.8 § 1.1 of the Code of Administrative Offences, and ordered his expulsion. In order to facilitate enforcement, the court ordered that the applicant be placed in detention. 9. On 10 June 2016 the Supreme Court of the Udmurtiya Republic upheld the lower court’s judgment. 10. On 22 June 2016 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited, expelled or otherwise involuntarily removed from Russia to Syria for the duration of the proceedings before the Court. Since that date the enforcement of the applicant’s expulsion was monthly postponed by the domestic courts. 11. On 13 January 2017 the Supreme Court of the Russian Federation on appeal amended the lower courts’ judgments and excluded administrative removal from the sanction, since it would have exposed the applicant’s life to risk in Syria. 12. On 20 January 2017 the applicant left Russia for Lebanon. | 0 |
test | 001-148670 | ENG | GBR | CHAMBER | 2,014 | CASE OF PETER ARMSTRONG v. THE UNITED KINGDOM | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 5. The applicant was born in 1955 and is currently detained at HM Prison Long Lartin, Evesham. 6. On 3 August 2007, the applicant stabbed a man at his home in Liverpool. The man died of his injuries. When the police arrived at the house, they found the applicant sitting in a chair, and he told them, “He’s my best friend and I’ve stabbed him”. The applicant was arrested and taken to the police station. When interviewed, he claimed that the victim had entered the house and attacked him, and that he was acting in self-defence. 7. The applicant was charged with murder and his trial began in the Crown Court at Liverpool before a judge and a jury. The applicant’s defence to the charge was one of self-defence. 8. On the first day of trial, a member of the jury informed the court that he was a retired police officer. He had been retired for many years and had not served in any of the units involved in the case. He did not recognise the names of any of the police officers in the case. The judge brought the matter to the attention of counsel and invited observations. The applicant’s counsel explained that he had not had the opportunity to speak to the applicant about the matter and continued: “...[B]ut can I say without having exercised that right that the advice which I will [be] giving him is that there is no objection on the face of it even for a serving police officer remaining on the jury in a case of this sort provided that the officer in question, or in this case the retired officer in question, has no knowledge of the case and the parties to the case or any of the police officers who may be concerned with it.” 9. He went on to refer to “obvious exceptions”, including where the police officer juror had some connection with the case or where there was a “significant challenge to police evidence as a necessary part of the conduct of the defence”, adding: “That does not apply in this case, the police evidence is, I will not say it is completely agreed but there is no significant challenge to the police evidence which would have any realistic impact on the jury’s verdict in this case.” 10. A short adjournment took place to allow the applicant’s counsel to investigate whether the retired officer had any connection or contact with the case. Following the adjournment, defence counsel confirmed that he had no representations to make. 11. On the second day of the trial, another member of the jury informed the court that he was a serving police officer and that he recognised a man sitting at the back of the court as a police officer. 12. Prosecuting counsel confirmed that the man in question was the officer in charge of the case, but explained that they did not intend to call him as a witness. They had made inquiries with the man, who had clarified that when he was an inspector at St Helen’s, a town near Liverpool, around four years earlier the police officer juror had been serving there as a constable. The man had not been the juror’s line manager. He suggested that inquiries ought to be made into the juror’s knowledge of the man, but suggested that it would be sufficient if the man were to remain outside the courtroom, as the rest of the jury did not know who he was and none of the jurors knew why he was there. 13. Defence counsel said that he wanted to know how much the juror knew about the man and about other officers involved in the case. The judge sought confirmation of the precise information required by the defence and proposed to prepare a list of questions for the juror on that basis, which he would share with counsel before they were put to the juror. Defence counsel indicated that his “provisional reaction” was that provided the answers to the questions were satisfactory there would be no problem. 14. The judge rose and returned to read his proposed questions to counsel and to the applicant. The questions were: - What is the extent of your knowledge of the police officer with the beard who you say you recognized sitting in court yesterday? - What were the circumstances in which you came to know him? - When and where prior to yesterday was your last contact with him? - What is your present rank? - Where are you currently based? - Please look at the list of police officers who will give evidence. Have you any knowledge of them? If so, what is the extent of this knowledge? 15. Defence counsel made no comment on the proposed questions. They were duly put to the police officer juror. Following a short adjournment, the judge set out the result of the investigation: “I say it in open court so there is no doubt about it. I understand that the juror in question knew the man with the beard, as I shall call him, at St Helen’s when the man with the beard was his inspector. This was a few years ago. He was able to give his name ... He has not, however, seen him since that inspector left St Helen’s, which he thinks was perhaps as long ago as four years. He makes clear that the inspector was his inspector for a few months but he did not see him socially or out of hours. The juror is currently a serving Police Constable at St Helen’s and he indicates he knows no-one on the list [of police officer witnesses]. Any observations?” 16. Defence counsel responded as follows: “No, my Lord. I am quite happy that the juror may continue to serve. I understand that he does not wish other jurors to be told that he is a police officer and that is understandable, his occupation is irrelevant to his jury serving and his participation in these proceedings.” 17. On 22 January 2008 the applicant was convicted of murder. On 24 January 2008 he was sentenced to life imprisonment with a tariff of thirteen years. 18. The applicant sought leave to appeal to the Court of Appeal on the ground that the presence of the serving police officer on his jury created a real possibility of actual or apparent bias which rendered his conviction unsafe. 19. On 28 November 2008 permission to appeal was refused on the papers. The judge considered that no fair-minded and informed observer with full knowledge of the relevant facts as disclosed in the discussions between counsel and the trial judge would conclude that there was a real possibility that the jury were biased. He further observed that the police evidence was not in dispute and that the applicant’s trial counsel, who was pre-eminently placed to assess the situation, had made no objection to either juror sitting on the jury after full inquiry had been concluded. 20. The applicant renewed his application for leave to appeal before the full court. He argued that bias in his case arose from the following factors: that police witnesses and other witnesses closely connected to the police were cross-examined; that the juror was an officer in the same police force as the police witnesses and the officer in charge of the case, although was not based at the same police station; and that the juror had served under the officer in charge of the case some four years earlier. 21. On 8 June 2009, following an oral hearing, the Court of Appeal refused permission to appeal. It noted the factors relied on by the applicant as suggesting bias, but considered that, against those factors, were the fact that the juror had no particular knowledge of the facts of the case; that he knew none of the police witnesses who were due to be called; and that he had had no contact with the officer in charge of the case for some four years. The court rejected the suggestion that the juror had worked out that the man at the back of the court was the officer in charge of the case, or indeed that he had any connection with the case. It concluded: “1.20 It is apparent that the mere fact that a juror is a serving policeman is not sufficient to give rise to a real risk of bias. There must be some other factor connecting him to the case in order to give rise to that risk. This was not a case in which the police evidence was in any sense hotly contested, despite the fact that some of the witnesses were cross-examined. In the circumstances, in our view, the suggestion that there was some additional connection between this juror and the office in charge of the case could be little more than speculation.” | 0 |
test | 001-170360 | ENG | UKR | COMMITTEE | 2,017 | CASE OF KOMAROV v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6+6-1 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Fair hearing) | André Potocki;Ganna Yudkivska;Síofra O’Leary | 5. The applicant, a former police officer, was born in 1962 and lives in Zaporizhzhya. He is also acting on behalf of his son, V., who was born in 1991. 6. On 13 September 2003 four people, including the applicant, were apprehended by officers of the Zaporizhzhya office of the Security Service of Ukraine (Служба Безпеки України – “the SBU”) in Novokateshchino village while attempting to transport opiate drugs with a view to selling them on. They were taken to the SBU’s premises for questioning. After being informed of his privilege against self-incrimination, the applicant made a written statement to the effect that he had appeared at the crime scene by chance, at the request of a friend with whom he and his son had been looking for a place to fish. 7. Later the same day criminal proceedings were instituted against the applicant and two other people on suspicion of illegal production, storage and sale of drugs. 8. On 14 September 2003 criminal proceedings were instituted against the applicant and the two others on suspicion of membership of an organised crime group. 9. On the same date the applicant was arrested. Having been informed of his procedural rights as a suspect, he refused to give evidence without a lawyer present. 10. On 15 September 2003 the applicant’s wife hired a lawyer, G., to represent the applicant. 11. On 16 September 2003 the applicant’s pre-trial detention was ordered by a court. 12. On 19 September 2003 the applicant requested that G. be admitted to the proceedings as his lawyer. 13. On the same date, in the presence of his lawyer, the applicant denied his involvement in the crime. 14. On 23 September 2003, in the presence of his lawyer, the applicant was charged with drug-related crimes and questioned. He did not want to be informed of his rights and stated that he would not give any evidence during the pre-trial investigation. 15. On 2 October 2003 the applicant was questioned in the presence of his lawyer. He provided some biographical details as well as information on his family status, state of health and place of residence. 16. On 18 November 2003 the applicant was again questioned in the presence of his lawyer. 17. On 15 December 2003 all the criminal proceedings against the applicant were joined. 18. On 18 December 2003 the applicant was questioned in the presence of his lawyer. He did not confess to the crimes. 19. On 22 and 23 December 2003 confrontations between the applicant and his co-accused were conducted with his lawyer present. 20. On 24 December 2003 amended charges were brought against the applicant in his lawyer’s presence. The applicant pleaded not guilty. 21. On 6 February 2004 the applicant’s wife was admitted to the proceedings as the applicant’s lay representative. 22. On 10 February 2004, upon his written consent, the applicant was questioned without a lawyer. 23. On 9 March 2004 the criminal case against the applicant and his coaccused was sent to the Leninsky District Court of Zaporizhzhya (“the District Court”). During the trial the applicant pleaded not guilty. He maintained that the case had been fabricated by his enemies and that all the evidence had been falsified and was inadmissible. In fact, he, a retired police officer, had been arrested in the company of drug addicts with whom he had been in contact as an advisor to the local police. They might have been producing drugs for their own use. He further claimed that his case should benefit from being examined in camera by a judge who had security clearance, to protect State secrets concerning the functioning of his network of informants. 24. In May 2004 F., a lawyer hired by the applicant’s wife, was admitted to the proceedings to represent the applicant. 25. On 25 October 2005, after having heard the case in public hearings, the District Court convicted the applicant and his co-defendants of drugrelated offences. The applicant was sentenced to eight-and-a-half years’ imprisonment and the confiscation of his personal property was ordered. 26. The applicant, represented by his lawyer and his wife, appealed. He repeated his arguments advanced at trial and complained that he had been unable to defend himself properly during the trial as he had been reticent in order to safeguard confidential information concerning the network of informants. He also complained of various procedural breaches in the collection of evidence. He alleged, with no further details, that he had had no access to a lawyer from the first questioning and, even after his lawyer had been allowed access, the authorities had tried to carry out a number of investigative steps without the lawyer present. 27. On 26 April 2006 the Zaporizhya Regional Court of Appeal allowed the defence’s request to have the proceedings held in camera to prevent public disclosure of information concerning the network of informants and required all the defence lawyers and representatives to undergo security clearance to continue taking part in the proceedings. The applicant’s wife did not receive security clearance in time for the appeal hearing and did not attend it. 28. On 22 June 2006 the Court of Appeal upheld the trial court’s judgment. 29. On 18 December 2007, following a prior appeal by the applicant, the Supreme Court of Ukraine quashed this decision and remitted the case for fresh consideration. It noted, in particular, that the applicant’s right to defence had been breached since the applicant’s wife had been unable to take part in the appeal hearing. It further found that the Court of Appeal had addressed the parties’ arguments in a summary way only, while it should have given detailed explanations in response to those arguments. 30. On 22 December 2008 the Court of Appeal reviewed the case in the presence of the applicant’s wife. It upheld the applicant’s conviction, reduced his sentence to eight years’ imprisonment and ordered the confiscation of his personal property. The conviction was mainly based on the records of the crime-scene inspection and the testimonies of the applicant’s co-defendants, which the trial court found to be corroborated by witness statements, and other evidence in the case. 31. On 2 July 2009 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law. 32. The applicant’s twelve-year-old son was with him when he was apprehended on 13 September 2003. He was taken with him to the SBU and remained in the same room with the applicant for most of the time. No other family members were informed of the boy’s whereabouts. 33. On the morning of 14 September 2014, after the applicant had been formally arrested, his son was returned to his mother. 34. On 3 January 2004 the applicant’s wife lodged a criminal complaint with the Zaporizhzhya regional prosecutor’s office (“the prosecutor’s office”) in which she alleged, inter alia, that her son had been unlawfully detained at the SBU’s premises between 13 and 14 September 2003. 35. On 9 February 2004, having questioned the applicant and the SBU officers, the prosecutor refused to institute criminal proceedings as it had been established that no pressure had been applied to the applicant’s son and that he had been able to move freely and had not been deprived of his liberty. It was further noted that the applicant had not complained of the SBU staff’s attitude towards his son. 36. On 20 April 2004 the applicant’s son challenged the above decision before the Prosecutor General. 37. In April 2004 the applicant and his wife lodged another complaint concerning the alleged unlawful detention of their son with the prosecutor’s office. 38. On 7 May 2004 the prosecutor’s office, having questioned the applicant, his wife and son, as well as the SBU officers and some witnesses, refused to institute criminal proceedings in respect of the above complaint, having found no corpus delicti in the officers’ actions. It was established during the relevant investigation that the applicant’s son had been taken to the SBU’s premises at the applicant’s request and had not been arrested or detained and had been returned to his relatives as soon as the decision to arrest the applicant had been taken; and that the applicant had raised no complaints during his son’s stay at the SBU. It was also noted in the relevant resolution that the applicant’s wife had refused to provide her son’s medical file to prove her allegations concerning the worsening of his state of health and that there had been a contradiction in the applicant’s statements and between his and his son’s account of events. The prosecutor thus concluded that the allegations of unlawful deprivation of liberty or of other violations of the applicant’s son’s rights appeared to be ill-founded. He noted that no intention on the part of the officers to interfere with the applicant’s son’s personal security, specifically his freedom of movement, had been established. Likewise, there had been no evidence that the applicant’s son had been subject to any form of pressure or ill-treatment. 39. On 11 May 2004 the applicant’s wife and son instituted civil proceedings against the SBU before the Zhovtnevy District Court of Zaporizhzhya claiming damages for the unlawful detention of her son. Following a request of the applicant’s wife of 15 October 2004, her civil claim was joined to the criminal proceedings against the applicant. 40. On 23 July 2004 the deputy prosecutor of Zaporizhzhya Region quashed the resolution of 7 May 2004 as being premature, given that no evidence regarding the applicant’s son’s state of health had been obtained. 41. On 31 July 2004, having questioned the applicant’s son’s doctors who had observed him in the course of his care previously, the prosecutor again refused to institute criminal proceedings for the same reasons as before. It was noted, inter alia, that none of the doctors had observed any worsening of the applicant’s son’s state of health and that no worsening of his health had been evident from his medical file either. 42. On 14 October 2004 the prosecutor’s office instituted disciplinary proceedings against two officers of the SBU for their negligence towards the applicant’s son. It noted, inter alia, that the applicant’s son had not been formally arrested (затриманий) but had been kept at the SBU’s premises for no reason and no measures had been taken to return him to his relatives. The prosecutor further observed that the applicant’s son had not been subject to any form of ill-treatment. He also stressed the fact that the applicant’s arrest report had been drafted only the next day after the applicant’s initial arrest, in breach of the requirements of the domestic law. This resolution had been sent to the SBU for relevant measures to be taken. 43. On 27 October 2004 the SBU informed the prosecutor’s office that the respective officers could no longer be disciplined as the one-year statutory time-limit had expired. It was also observed in that letter that no violations of domestic law by the SBU officers had been established by a number of investigations into the events complained of and that the applicant’s son had stayed with the applicant at the SBU’s premises from 13 to 14 September 2003 at the applicant’s own request. 44. On 5 November 2004 the applicant’s wife complained to the Prosecutor General about the prosecutor’s decision of 31 July 2004. 45. On 25 October 2005, when convicting the applicant, the District Court delivered a separate ruling, in which it listed the procedural violations committed by the investigating authorities in the criminal proceedings against the applicant. The fact that the applicant’s son had remained in the SBU’s premises for about twenty-four hours after the applicant’s initial arrest, without his relatives having been informed of his whereabouts and with no medical assistance provided in view of the stress he had been under, was listed among the violations referred to by the court. The Chief of the SBU in Zaporizhzhya was invited by the court to take appropriate measures in view of the above mentioned violations. 46. On 25 January 2006 the applicant appealed to the Ordzhonikidzevsky District Court of Zaporizhzhya against the prosecutor’s refusal of 31 July 2004 to institute criminal proceedings against the SBU officers. 47. On 3 April 2006 the applicant’s complaint was left without consideration on the merits. The court noted in this connection that the relevant investigation files had been joined to the criminal case against the applicant and that therefore the prosecutor’s decision was not subject to appeal outside of those criminal proceedings. 48. During the proceedings in his criminal case before the Court of Appeal and the Supreme Court the applicant and his wife repeatedly requested, referring to the separate ruling of 25 October 2005 by the District Court (see paragraph 45 above), that measures be taken to bring the respective officers to trial for the unlawful detention of their son. The case file does not suggest that in their appeals the applicant or his wife claimed damages in this connection. 49. On 22 December 2008, in its judgment upholding the applicant’s conviction, the Court of Appeal observed that the complaint related to the unlawful detention of the applicant’s son had been considered by the prosecutor’s office and no corpus delicti under criminal law had been found on the part of the SBU officers. The court made no separate ruling in this connection. The Supreme Court did not address this issue in its decision of 2 July 2009. | 1 |
test | 001-171089 | ENG | MDA | COMMITTEE | 2,017 | CASE OF CEREALE FLOR S.A. AND ROŞCA v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Nebojša Vučinić;Stéphanie Mourou-Vikström | 5. The applicant company is a joint-stock company incorporated under Moldovan law. Ms Roșca was born in 1984 and lives in Chișinău. 6. On 23 February 2000 the Economic District Court ordered the applicant company to pay another company, E., 1,908,145 Moldovan lei (MDL) (equivalent to 152,190 euros (EUR)). The court issued a writ of enforcement. 7. On 14 July 2005 E. sought to restart the time-limit for the enforcement of the judgment dated 23 February 2000, arguing that it had been unable to initiate enforcement proceedings within the three-year statutory period because the bailiff had lost the original writ of enforcement. 8. On 2 May 2006 the Economic Court of Appeal, by a final judgment, dismissed E.’s application as being ill-founded, noting that a duplicate of the writ had been issued in 2003. 9. On 17 December 2008 the Economic Court of Appeal upheld an application by E. for a revision of the judgment, quashed the decision of 2 May 2006 and allowed the statutory time-limit to run anew. The court did not reply to the applicant company’s contention that the application was timebarred. 10. After communication, E. initiated enforcement proceedings and the applicant company paid MDL 294,405.37 (equivalent to EUR 18,400). 11. On 28 February 2007 the Ciocana District Court acknowledged the applicant’s entitlement, as a young family, to a plot of land for construction purposes. The court ordered the Tohatin local administration to grant the applicant ownership of such a plot of land. As there was no appeal, the judgment became final on 20 March 2007. 12. The applicant sought enforcement of the judgment of 28 February 2007, but to no avail. 13. On 11 February 2009 the Tohatin local administration lodged an application for a revision of the judgment, arguing that the applicant had not qualified as a young family because her husband had died in 2006 and she had therefore lost her entitlement to any land. 14. On 22 April 2009 the Ciocana District Court dismissed the application for revision, finding that the applicant had requested the plot of land in 2005. Her husband’s death had not qualified as a new circumstance because the local administration had been aware of that matter at the time of the proceedings. The local administration appealed. 15. On 24 June 2009, in the applicant’s absence, the Chișinău Court of Appeal allowed the appeal, quashed the decision of 22 April 2009 and upheld the application for revision. It also quashed the Ciocana District Court’s judgment of 28 February 2007 and delivered a new judgment on the merits that dismissed her claims as unsubstantiated. 16. After communication, the applicant brought a civil action, claiming damages for a violation of her right to a fair hearing within a reasonable time, pursuant to Law no. 87 of 21 April 2011. She referred to the period of twenty-six months between 20 March 2007 and 24 June 2009, during which the judgment of 28 February 2007 had not been enforced. 17. On 16 March 2012 the Rîșcani District Court found for the applicant, acknowledged a violation of her rights and awarded her MDL 450,000 (equivalent to EUR 27,250) in respect of pecuniary damage, MDL 66,000 in respect of non-pecuniary damage and MDL 38,193 for legal costs. The court noted that the compensation for pecuniary damage represented the average market price of a plot of land of 0.09 ha. It said that it had used the reference size of 0.09 ha because the Tohatin local administration had granted plots of that size when executing similar judgments in respect of young families. The Ministry of Finance appealed. 18. On 25 October 2012 the Chișinău Court of Appeal, by a final judgment, found the length of the proceedings to have been excessive, which it attributed to the acts of the authorities. It awarded the applicant MDL 30,000 (equivalent to EUR 1,895) in respect of non-pecuniary damage and MDL 5,000 (equivalent to EUR 316) for costs and expenses. The court dismissed the remainder of the claim, noting that the applicant had failed to substantiate alleged costs for renting alternative accommodation and finding that no compensation for the land should be awarded because the judgment acknowledging her entitlement to that land had been quashed. | 1 |
test | 001-171096 | ENG | NLD | CHAMBER | 2,017 | CASE OF HOKKELING v. THE NETHERLANDS | 3 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person;Defence through legal assistance);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Egbert Myjer;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1947. At the time when the application was submitted, the applicant was serving a sentence of imprisonment in Oslo, Norway. 7. In December 2004 a group of individuals transported a considerable quantity (possibly three tons) of hashish (which in the Netherlands is a banned substance) from one hiding-place to another. It appears that the possessors of the hashish later found some of it missing and came to the conclusion that it had been removed by one E. In late January 2005 E.’s body was found dumped at a building site, with the hands tied behind the back, two ribs broken and holes in the knees and kneecaps consistent with the deliberate infliction of injury by means of an electric drill. 8. The applicant was arrested on 11 April 2006 on suspicion of having been criminally involved in the above events and taken into pre-trial detention. Throughout the ensuing criminal proceedings he claimed to be innocent. 9. The applicant was charged with causing E. grievous bodily harm resulting in his death, the abduction of E. resulting in his death, threatening grievous bodily harm against E., and importing, transporting and possessing three tons of hashish. His trial opened on 17 July 2006 before the Alkmaar Regional Court (rechtbank). 10. The prosecution sought an eight-year prison sentence. 11. After adjournments made necessary by the need for further investigative measures, the Regional Court gave judgment on 15 May 2007. It did not find it established that the abduction had resulted in E.’s death and acquitted the applicant of that aggravating circumstance, but convicted the applicant of the remainder of the crimes charged, finding him to have committed them together with others. It sentenced the applicant to four years and six months’ imprisonment. 12. Both the applicant and the prosecution appealed. 13. The appeal hearing opened on 31 October 2007 before the Amsterdam Court of Appeal (gerechtshof). Finding that the file was incomplete, the Court of Appeal adjourned the hearing sine die in view of its busy hearing schedule. Further adjournments were ordered, on the same ground, on 18 January 2008 and 4 April 2008. On 27 June 2008 an adjournment was ordered on the ground that no suitable hearing room was available. 14. The Court of Appeal held a scheduling hearing (regiezitting) on 23 September 2008. Two more adjournments were ordered, one until 2 December 2008 for the purpose of securing the attendance of further witnesses and one until 24 February 2009 to allow the applicant’s new counsel, who had replaced the lawyer who had conducted the applicant’s defence at first instance, to acquaint himself with the case file. At the hearing of 24 February 2009 it was decided that the hearing on the merits of the case would be held on 18, 19 and 27 May 2009. 15. On 26 March 2009 the applicant was released, having served two-thirds of the sentence handed to him by the Regional Court. 16. The hearing was resumed on 18 May 2009. The applicant was in attendance. Since further witnesses were to be heard by the investigating judge at the request of the defence, a further adjournment was ordered until 27, 29 and 30 October 2009; the applicant and his counsel were cautioned to be present without further notice. 17. On 4 October 2009 the applicant was arrested in Norway on suspicion of having imported “a considerable quantity of narcotic substances”. The applicant’s counsel informed the Court of Appeal of this development by fax on 13 October 2009. 18. The hearing was again resumed on 27 October 2009. The applicant’s counsel stated that the applicant was in pre-trial detention in Norway. He asked for the applicant to be brought to the Netherlands a few days before the following hearing so as to consult with him. 19. On 29 March 2010 the applicant received a summons at his detention address in Norway to appear at the hearing of the Amsterdam Court of Appeal to be held on 1 and 4 June. 20. On 10 May 2010 the applicant’s counsel sent an e-mail to the Advocate General (advocaat-generaal) to the Court of Appeal, with a copy to the president of the criminal division, restating his request for the applicant to be brought to the Netherlands in advance of the hearing of the Court of Appeal and announced his intention to oppose resumption of the hearing if this were not done. 21. On 25 May 2010 the applicant’s counsel informed the Court of Appeal by e-mail of his intention to seek an adjournment of the coming hearing. On the same day the president of the criminal division warned the applicant’s counsel and the Advocate General by e-mail, without prejudging any decision that might be taken, of the possibility that the merits of the case would be addressed. 22. The hearing was resumed on 1 June 2010. The official record of the hearing makes mention of the applicant’s place of detention, namely Oslo Prison (Oslo Fengsel), Oslo, Norway. 23. The applicant’s counsel asked for the hearing to be adjourned until the applicant could be present in person. He suggested that this might be done pursuant to an extradition request; by way of transfer under the European Convention on Mutual Assistance in Criminal Matters, which possibility in his submission had not been adequately explored; and, following the outcome of the criminal proceedings in Norway, by allowing the applicant either to return of his own accord or to serve any sentence handed to him by the Norwegian courts in the Netherlands as the case might be. 24. The Court of Appeal declined to adjourn its hearing until the applicant could be present. Its reasoning, reflected in the official record of its hearing, was as follows: “If a request is made to adjourn the hearing on the merits all relevant interests should be weighed, including the right of the accused to be present, the interest of not only the accused but also of society in a speedy determination of the charges and the interest of a proper organisation of the judicial system. In so doing, the court of Appeal will base itself on the following facts and circumstances: - The present case began in 2005. The applicant was arrested on 11 April 2006 and sentenced to four years and six months’ imprisonment by the Alkmaar Regional Court on 15 May 2007. The [applicant] took part in the proceedings. The [applicant] appealed against this judgment and the first appeal hearing took place on 31 October 2007. - The [applicant] was released on 26 March 2009. - It was not possible to hold the hearing on the merits on 18, 19 and 27 May 2009 as planned because the investigating judge had not finished hearing witnesses. - On 13 October 2009 the applicant’s counsel transmitted the information that the [applicant] had been arrested in Norway on 4 October 2009 on suspicion of having violated Article 192 § 3 of the Norwegian Criminal Code, to wit, unlawfully importing a large quantity of narcotic substances. The [applicant] was to remain in pre-trial detention until at least 4 November 2009. The hearing on the merits could therefore not be held on 27, 29 and 30 2009 October as planned and was moved to 1 and 4 June 2010. - The [applicant] has therefore brought it on himself that he cannot now attend the appeal hearing independently (dat hij niet zelfstandig tegenwoordig kan zijn bij zijn berechting in hoger beroep). - The [applicant] has indicated, following his arrest, that he wishes to attend the appeal hearing. - The Advocate General has, on 15 October 2009, drafted a request for mutual assistance, in consultation with the Centre for International Legal Assistance North West and Central Netherlands (Internationaal Rechtshulp Centrum Noordwest en Midden Nederland) (...) requesting the Norwegian authorities to transfer the [applicant] to the Netherlands temporarily under Article 11 of the European Convention on Mutual Assistance in Criminal Matters. - The Norwegian public prosecutor replied on 16 October 2009 that the [applicant]’s temporary transfer was not possible because Norway had entered a reservation relevant to Article 11 [of the European Convention on Mutual Assistance in Criminal Matters]. The request for temporary transfer would have to be made via the Ministry of Justice. - The Advocate General has, on 2 March 2010, prepared a draft request for mutual legal assistance setting out the request to the Norwegian authorities to transfer the [applicant] to the Netherlands under Article 11 [of the European Convention on Mutual Assistance in Criminal Matters]. - On 18 March 2010 the head of the Department for International Legal Assistance in Criminal Matters (afdeling Internationale Rechtshulp in Strafzaken) of the Ministry of Justice informed the Advocate General that Article 11 [of the European Convention on Mutual Assistance in Criminal Matters] provides only for the possibility to transfer temporarily as witnesses or for purposes of confrontation. Temporary transfer of an accused for trial requires extradition or surrender procedure (uitleverings- of overleveringsprocedure) to be followed, in which case there must be a valid Netherlands title for detention. - The Advocate General prepared a draft extradition request on 27 April 2010. - On 6 May 2010 the head of the Department for International Legal Assistance in Criminal Matters informed the Advocate General that it was not possible to request the [applicant]’s extradition from Norway because there was no Netherlands title for his detention. This means that one of the documents referred to in Article 12 § 2 (a) is missing. The ultimate conclusion is that since neither extradition nor temporary transfer within the meaning of mutual assistance in criminal matters (kleine rechtshulp) is possible, there is no possibility to allow the [applicant] to attend the hearing in his criminal case on 1 and 4 June 2010. - Counsel and [applicant] have had sufficient time to prepare the defence before the hearing on the merits [planned for] 18, 19 and 27 May 2009, which hearing was postponed until 27, 29 and 30 October 2009 only shortly before [it was due to begin]. Counsel has also had the opportunity to discuss the case with the [applicant] and prepare for the hearing before those new hearing dates. It does not make any difference that the [applicant] was arrested in Norway on 4 October 2009. Moreover, in March 2010 counsel visited the [applicant] in Norway to prepare today’s hearing, it being worth noting in this connection that it is open to [counsel] in consultation with the [applicant] himself to make use of [this possibility] more frequently, the Norwegian authorities having imposed no restrictions in this respect. - Counsel has been explicitly authorised (uitdrukkelijk gemachtigd) to defend the [applicant] at the hearing. The Court of Appeal considers, in these circumstances, that in weighing the various interests against each other the general interest, including due process (het belang van een behoorlijke rechtspleging) and the interest of bringing the case to a close within a reasonable time must now prevail over the [applicant]’s right to take part in the hearing in person. ...” 25. The hearing was continued on 4 June 2010. The applicant’s counsel conducted the defence in the applicant’s absence. 26. The Court of Appeal gave judgment on 18 June 2010. It convicted the applicant of complicity in causing grievous bodily harm resulting in death, abduction and transporting and possessing an unspecified quantity of hashish. It sentenced him to eight years’ imprisonment. 27. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). He complained of a violation of his right to attend the hearing in person as a result of the Court of Appeal’s refusal to order an adjournment until he could be present. His arguments were the following: Firstly, the starting point should be that an accused had the right to attend the hearing in his case in person; as long as he did not waive that right, he was in principle entitled to an adjournment if he was prevented from so doing. This starting point was not reflected in the Court of Appeal’s reasoning. Secondly, it did not appear that the Court of Appeal had considered the seriousness of the charges. Considering the charges in issue, and the sentence imposed on appeal (which added years to the sentence imposed at first instance), the Court of Appeal’s decision was misconceived. Thirdly, the presence of counsel and the length of the proceedings, relied on by the Court of Appeal, were irrelevant. The length of proceedings in particular would be imputable to the suspect if an adjournment was requested by the defence. Fourthly, the Court of Appeal had failed to respond to the suggestion made by the defence to await the outcome of the proceedings in Norway, after which the applicant could return of his own accord or the execution of any Norwegian sentence could be taken care of in the Netherlands, thus enabling the applicant’s attendance. Fifthly, the Court of Appeal had failed to explain why “due process and the interest of bringing the case to a close within a reasonable time” were given priority over the applicant’s attendance rights on 1 June 2010 given that those interests had never previously stood in the way of an adjournment of the case. 28. The Advocate General (advocaat-generaal) to the Supreme Court submitted an advisory opinion (conclusie) in which he expressed the view that, in the light of Article 281 taken together with Article 415 of the Code of Criminal Procedure (Wetboek van Strafvordering), the Court of Appeal had been called upon to decide whether the interest of the examination of the case at the hearing required the hearing to be adjourned. The advisory opinion continues (footnotes omitted): “11. [In the light of the principle stated, the Court of Appeal’s findings] do not reflect an incorrect understanding of the law; nor, in view of the following, is it incomprehensible. The Court of Appeal has established as fact that [its own] Advocate General has made several unsuccessful attempts to have the suspect – who is detained in Norway – transferred to the Netherlands so that he can exercise his right to attend the hearing in person. This finding implies that the Court of Appeal has considered the question whether it was possible for the suspect to be placed at its disposal for the purposes of the appeal but has answered it in the negative. Moreover, it does not appear likely that the applicant will return to the Netherlands shortly after the end of the criminal proceedings in Norway and will be able to appear at a further hearing. Contrary to what is argued by the drafter of the ground of appeal, the Court of Appeal therefore sufficiently examined the possibilities of mutual legal assistance. The fact that the Court of Appeal did not react in so many words to counsel’s suggestion that the outcome of the Norwegian criminal proceedings should be awaited does not change this. After all, in refusing to order an adjournment the Court of Appeal is not bound to answer every detail of the argument explicitly. [The sentence reflecting the decision that all parts of the request had been refused] was sufficient. That also implies the refusal to await the outcome of the Norwegian criminal proceedings, so that the suspect would be able to attend the hearing in the Netherlands by his own means or by way of transfer of the execution of the Norwegian sentence, if any. Furthermore, the suspect appeared at the first instance hearings alongside his counsel, in addition to several appeal hearings which he attended together with his counsel. It follows that the suspect had the opportunity to exercise his right to attend hearings and state his version of events to a court, notwithstanding the fact that the merits of the case were not dealt with at the appeal hearings referred to. The summonses for the appeal hearing on 1 and 4 June 2010 – at which hearing the suspect did not appear – were served in accordance with the law. Moreover, the defence could be conducted at this hearing on the applicant’s behalf by the applicant’s counsel, as in fact was the case. In addition, the Court of Appeal adjourned its examination of the case at the appeal hearing of 27 October 2009 already, at the request of counsel, because of the suspect’s detention in Norway. The examination of the case at the hearing in appeal had been adjourned nine times already, whereas the appeal proceedings lasted more than three years in total. The criminal acts with which the applicant was charged were committed in December 2004 [the drugs crimes] and January 2005 [the crimes against the person of E.] respectively, so that at the time of the appeal hearing of 1 June 2010 – at which hearing the request for an adjournment was made – five years and five months had already passed. Finally, in the cases of the co-suspects, which were dealt with simultaneously with [the present case] but not joined with it, one of them, S., did appear at that hearing. 12. Contrary to the argument made by the drafter of the point of appeal, the Court of Appeal was under no obligation to consider the seriousness of the charges against the applicant in deciding on the request for an adjournment but it was at liberty to consider the presence of counsel authorised to conduct the defence and the length of the criminal proceedings. 13. The limpidity of the Court of Appeal’s reasoning is not impaired by the Court of Appeal’s reliance, in refusing the request for an adjournment, on due process and the interest of bringing the case to a close within a reasonable time, even though these arguments supposedly did not stand in the way of adjournments of earlier appeal hearings. I note in this connection that the adjournments, from 23 September 2008 onwards, were connected, at least in part, with the need to ensure due process: the hearing of witnesses and the realisation of the suspect’s right to attend the hearing in person.” 29. On 13 December 2011 the Supreme Court dismissed the applicant’s appeal on points of law on summary reasoning. 30. It would appear that the applicant returned to the Netherlands at some time in mid-2013. 31. The applicant served the remainder of the sentence given by the Amsterdam Court of Appeal. He was released on 26 August 2015. 32. On 27 January 2011 the Oslo District Court convicted the applicant of drugs offences and sentenced the applicant to eleven years’ imprisonment. 33. On 1 September 2011 the Borgarting Court of Appeal reduced the prison sentence to five years and six months. It appears from the judgment that on 4 October 2009 the applicant had been caught red-handed importing 46 kilogrammes of cannabis. This judgment became final on 14 December 2011. | 1 |
test | 001-159769 | ENG | MKD | CHAMBER | 2,016 | CASE OF GEROVSKA POPČEVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano;Ksenija Turković | 6. The applicant was born in 1954 and lives in Skopje. 7. On 3 April 2006 the State Anti-Corruption Commission, chaired at the time by M.M., who subsequently (July 2006) became the Minister of Justice, asked the State Judicial Council (“the SJC”) to review (предлог за проверка) a civil case (no. IV P.br. 2904/01) which the applicant had adjudicated at first instance as president of a three-judge panel. The case concerned compensation proceedings against the State. 8. On 19 April 2006 the Civil Division of the Supreme Court convened to draw up an opinion stating that there were grounds for instituting professional misconduct proceedings in respect of the applicant regarding civil case no. IV P.br. 2904/01. According to the record of that meeting, the opinion had been requested by Judge D.I., who was the President of the Supreme Court at that time. The record did not list the members of the Civil Division of the Supreme Court that adopted the opinion. According to the applicant, Judge D.I. was a member of the Civil Division that adopted the opinion. 9. On 26 April 2006 the SJC asked the plenary of the Supreme Court, under section 21 of the State Judicial Council Act of 1992 (“the 1992 Act”, see paragraph 24 below), to draw up a report on the issue of whether the applicant’s dismissal from the office of judge would be justified. 10. On the same date the SJC, composed in accordance with Article 104 of the Constitution (see paragraph 22 below), instituted (поведува постапка) professional misconduct proceedings in respect of the applicant due to misapplication of procedural and substantive law in civil case no. IV P.br. 2904/01. It referred to the request submitted by the State AntiCorruption Commission and further relied, inter alia, on the opinion of the Civil Division of the Supreme Court. The applicant responded in writing. 11. In December 2006 eight members of the SJC (all judges) were appointed in accordance with Amendment XXVIII of the Constitution (see paragraph 23 below). V.G., a member of the SJC, was nominated as the complainant (овластен предлагач), as set out in section 55 of the State Judicial Council Act of 2006 (“the 2006 Act”, see paragraph 25 below), in the applicant’s case. 12. On 25 December 2006 the plenary of the Supreme Court, chaired by Judge D.I., drew up an opinion regarding the applicant’s case. The relevant part of the opinion, signed by Judge D.I., reads as follows: “The plenary of the Supreme Court ... unanimously endorses the complete [text of] the opinion of the Civil Division and finds that there are grounds for dismissing (the applicant) for professional misconduct.” 13. On 26 February 2007 a hearing was held before the SJC Commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”), set up under section 58 of the 2006 Act (see paragraph 25 below). V.G. was not a member of the Commission. Both the applicant, who was represented by legal counsel, and V.G. submitted their arguments verbally. The Commission also took into account the opinions of the Civil Division and the plenary of the Supreme Court. On 28 February 2007 it drew up a report, which it communicated to the SJC. 14. On 14 March 2007 the plenary of the SJC, which included only ten of its members, namely eight judges elected by their peers, as well as the then Minister of Justice and Judge D.I., who were ex officio members of the SJC (see Amendment XXVIII to the Constitution, paragraph 23 below), dismissed the applicant from the office of judge for professional misconduct. The SJC found that she had wrongly applied procedural and material law in civil case no. IV P.br. 2904/01, which she had decided out of the established order in which cases should have been dealt with. The dismissal decision referred to the request submitted by the State AntiCorruption Commission and further was based on evidence adduced at the hearing before the Commission, including the opinions of the Civil Division and the plenary of the Supreme Court. 15. The applicant challenged that decision at second instance, namely before an appeal panel formed within the Supreme Court (“the Appeal Panel”). Such panels were set up on an ad hoc basis in each separate case. As specified in section 60 of the 2006 Act (see paragraph 25 below), the Appeal Panel was composed of nine judges, of whom three were Supreme Court judges, four Appeal Court judges and two judges from the court of the applicant. On 8 May 2007 the Appeal Panel dismissed the applicant’s appeal and upheld the SJC’s decision. The Appeal Panel included Judge L.Š., who had adjudicated in another case allegedly related to case no. IV P.br. 2904/01. According to the applicant, her request for the withdrawal of Judge L.Š., a copy of which was not produced, was to no avail. 16. On 19 December 2007 the Constitutional Court rejected (отфрла) a constitutional appeal in which the applicant claimed that her dismissal had violated her freedom of conscience, freedom of thought and freedom of public expression. As regards the dismissal, the Constitutional Court found that it had no jurisdiction to review the lawfulness of the SJC’s decision. As to whether the applicant’s dismissal affected her freedom of expression, the court held that a distinction had to be made between exercising the office of judge and that particular freedom. It ruled that the office of judge entailed the right and duty to adjudicate in accordance with the law, and that that right and duty did not form part of the rights and freedoms on which it had competence to decide under the Constitution (У.бр.145/2007). 17. The applicant submitted copies of several articles published between April and December 2006 in the daily newspapers Vreme and Dnevnik. 18. An article published on 20 April 2006 quoted a report by the Supreme Court stating that the law had been wrongly applied in civil case no. IV P.br. 2904/01. 19. An article of 27 December 2006 stated that the Supreme Court had confirmed that the applicant should be dismissed from office. It reported Judge D.I. as saying that the SJC in its new composition should follow their recommendations. In this connection, the article quoted Judge D.I. as saying: “We only gave a reminder that responsibility should be established (треба да се сноси одговорност).” 20. An article of 28 December 2008 stated: “D.I., the President of the [Supreme] Court, asked (the SJC) to dismiss (the applicant) for professional misconduct.” 21. An article dated 11 January 2007 published in the daily newspaper Dnevnik quoted Judge D.I. as saying, inter alia: “We will submit an opinion as to whether (the applicant) should be dismissed once the responsibility of other institutions has been established. For the Supreme Court, that there has been professional misconduct [on the part of the applicant] is beyond any doubt (не е спорна нестручноста и несовесноста на судијката во случајов). The Civil Division has already established that.” | 1 |
test | 001-164683 | ENG | RUS | CHAMBER | 2,016 | CASE OF KRAPIVIN v. RUSSIA | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1964 and lives in Perm. 6. The applicant’s son N. was born on 23 August 2005. 7. On 15 February 2009 the applicant killed his wife by stabbing her several times with a knife. She died on the same day. The applicant’s son, three years old at the time, witnessed the murder. 8. On 17 February 2009 the applicant was arrested. 9. On 3 April 2009 N.’s maternal grandmother V. was appointed N.’s guardian. 10. On 25 May 2010 the Dzerzhinskiy District Court of Perm found that the applicant could not be held responsible for the murder of his wife which had been committed owing to a temporary psychiatric disorder in the form of an acute reaction to stress. It ordered compulsory psychiatric treatment for the applicant in a psychiatric hospital. 11. On 3 August 2010 the Perm Regional Court (“the Regional Court”) upheld the above decision on appeal. 12. On 25 February 2011 the Ordzhonikidzevskiy District Court of Perm found that psychiatric treatment was no longer necessary and ordered the applicant’s release from the psychiatric hospital. 13. According to the certificate issued by the Perm Regional Clinical Psychiatric Hospital, the applicant remained under psychiatric supervision until March 2014. 14. On 10 March 2011 the applicant applied to the Ministry of Social Development for the Perm Region (“the childcare authority”) in order to have the child returned to him. 15. On 11 May 2011 the childcare authority rejected the applicant’s request. 16. The childcare authority and V. instituted court proceedings seeking to deprive the applicant of his parental responsibility over N. The applicant brought a counterclaim, challenging the childcare authority’s refusal to return the child to him and seeking the termination of V.’s guardianship over N. 17. On 16 August 2012 the Dzerzhinskiy District Court dismissed the application by the childcare authority and V. to deprive the applicant of his parental responsibility over N. It also dismissed the applicant’s counterclaim to end V.’s guardianship over N. and to return N. to him. In taking that decision the Dzerzhinskiy District Court relied on the report of a psychological examination of the child carried out on 6 July 2010 by a municipal centre for children’s psychological, medical and social adaptation. The report stated, in particular, that N. was in the process of developing the basis of his mental and psychological health, for which he needed stability, to be provided first and foremost by constant caregiver figures and a permanent place of residence. Based on the report the court found that N. had been living with and had been brought up by V. from the age of three, that he had not seen his father for over a year, since summer 2011, that the applicant had been working on shifts and was out of town every two months out of four, that N. was going to start primary school and that V. had already chosen a school near the boy’s place of residence. The court concluded that, in view of the age of the child and his attachment to V., a change of his place of residence could be traumatic and was therefore undesirable. The court noted, however, that the applicant still had the possibility to communicate with N. and meet him. 18. On 27 March 2013 the Regional Court upheld the above judgment on appeal. 19. On 22 May 2012 the Justice of the Peace of the 5th Court Circuit of the Dzerzhinskiy District of Perm ordered the applicant to pay child maintenance to V. in an amount that was equal to a quarter of his income, starting from 28 April 2012 until the child’s coming of age. The judgment became final on 18 September 2012. The applicant makes regular payments. 20. On 28 May 2012 the applicant applied to the Motovilikhinskiy District Court of Perm (“the District Court”) for contact rights. He submitted that V. was preventing him from seeing N. and asked to be granted visiting rights every Saturday or Sunday for three hours in V.’s presence. 21. During the hearing the applicant stated that it was very important for him to resume contact with his son. He was aware that his son, who had not seen him for a long time, needed time to get used to him again. He was ready to change his place of work to be able to adapt better to his son’s schedule. He also stressed that he paid child maintenance and supported him financially. He was under psychiatric supervision and his mental health had improved. 22. V. stated that the applicant had intentionally and cruelly killed N.’s mother. He had committed the murder in front of N. and had thereby caused him profound psychological trauma. The applicant should not be allowed to see N. as it would undermine his health and psychological development. It would therefore be against N.’s interests to resume contact with his father. 23. On 5 September 2012 the District Court ordered a psychological examination of N. to establish whether it was possible to resume contact between N. and his father, and if so what form that should take, and the frequency and duration of contact. The experts were also asked to establish whether contact between N. and his father could damage N.’s health or psychological development. 24. On 11 April 2013 the applicant informed the District Court that he would be on a business trip from 4 May to 6 June 2013 and asked that no hearings be scheduled during that period. 25. On 29 April 2013 the District Court scheduled a hearing in the case for 14 May 2013. 26. According to the Government, on the same day a court clerk notified the applicant of the hearing of 14 May 2013 by calling him on his mobile telephone, and on 7 May 2013 by sending him a letter by registered mail, which was, however, returned undelivered on 23 May 2013. 27. According to the applicant, he was never informed about the hearing of 14 May 2013. He submitted a list of telephone calls, provided by his mobile operator, showing that he had received no calls from the court. 28. On 14 May 2013 the District Court held a hearing. The applicant and his counsel were absent. V. did not attend either. The record of the hearing reads as follows: “The secretary reported on the appearance [of the parties at the hearing]. Failed to appear: plaintiff, defendant, notified. [Defendant] informed that impossible to participate at hearing owing to visit to a sanatorium with the child. ... The possibility of examination of the case in the absence of the parties is considered. [Representative of childcare authority]: [I] consider it possible. The court ... held: continue examination of the case ...” 29. On the same day the District Court dismissed the applicant’s application. The District Court took the following factual elements into consideration: - the applicant was the father of N., a minor, aged seven years old at the time; - the child’s mother had died on 15 February 2009 from multiple stab and cut wounds inflicted on her by the child’s father, the applicant; - pursuant to the decision of 25 May 2010 the applicant had been exempted from criminal responsibility for the murder of his wife and ordered to have compulsory psychiatric treatment in a psychiatric hospital; - the murder had been committed in the presence of the child; - on 25 February 2011 the compulsory psychiatric measures in respect of the applicant had been lifted; - on 3 April 2009 the child’s maternal grandmother V. had been appointed the child’s guardian; - the child resided with V., his housing conditions were adequate and he had been provided with the necessary clothing, a place for play and rest, as well as toys and books; - the applicant wished to see the child on a weekly basis, on Saturdays or Sundays, by taking him out to the cinema, theatre and other places for children and by being afforded an opportunity to stay with the child at his paternal grandparents’ house; - on 16 August 2012 the Dzerzhinskiy District Court had dismissed the claims of the childcare authority and V. to deprive the applicant of his parental responsibility over N. and had dismissed the applicant’s counterclaim to end V.’s guardianship over N. and to return N. to him; - the applicant’s housing conditions were adequate; - the childcare authority had expressed a view that the applicant’s claim should be dismissed as being contrary to the child’s interests; - that according to the report of 2 May 2009 issued by the municipal centre for children’s psychological, medical and social adaptation, presented by V.: “During the examination N. behaved restlessly, he wandered from room to room and performed chaotic movements with the keys. It can be assumed that the child is in a state of stress ... Only after a certain time ... the boy relaxed and started talking calmly, and agreed to draw a family. N. appeared stressed when drawing. On the drawing the boy depicted his mum, dad and himself. However, it is unclear why the whole family was drawn by the boy. This could reflect the child’s wish to have a full family, or it could mean that the murder of his mother has been erased from the child’s memory, which could be a defensive mechanism. Having compared N.’s references from the nursery school dated November 2008 and the above observations of 2 May 2009, it can be noted that the child’s behaviour has changed, showing signs of acute psychological and traumatic distress. This is confirmed by the child’s grandmother, who submitted that the child is agitated ... has difficulty falling asleep, cries in his sleep and has started to show aggression ... In the [psychological centre] N. also displayed verbal aggression to other children. [The psychologist] therefore came to the conclusion that N. needed timely psychological or psychotherapeutic assistance to overcome the consequences of a psychological trauma.” - reports from N.’s nursery school, dated November 2008, and from his current kindergarten; - the carrying out of a psychological examination of the child, as ordered by the court on 5 September 2012, had been impossible owing to V.’s refusal to allow the experts to have access to the boy, meaning the case material was returned to the court by the expert without enforcement. In the light of the foregoing, the District Court concluded that it was not in N.’s interests to resume contact with his father. The District Court noted, in particular, that the applicant had not submitted any information about the current state of his mental health, and he had not shown that his mental health had improved or that he did not present a danger to N. Furthermore, the District Court took into account the fact that N. had been brought up by his grandparents from the age of three, that he had an established way of life and that he had not seen his father for a long time. The applicant often left on long business trips, which would prevent weekly meetings. Lastly, both grandparents had refused to see the applicant because of their hostility towards him, which made it impossible to organise meetings between N. and the applicant. 30. In his appeal submissions the applicant complained, in particular, that a psychological examination of N. had never been performed. The finding that it was not in N.’s interest to resume contact with his father had therefore not been based on the assessment of an expert. He also complained that neither he nor his counsel had been informed of the date of the hearing of 14 May 2013. Lastly, he enclosed an expert opinion of 17 May 2013, which read as follows: “Conclusions: 1. In view of the incompleteness of the data [failure to examine N. in view of V.’s refusal to give the experts access to N.], the experts consider that at the present time only short meetings between [the applicant] and the child are possible (not more than two hours 2-3 times per month) in public places on condition that the child has a positive or neutral attitude towards the father. 2. An assessment of whether contact between the child and his father could damage the child’s health or psychological development is impossible given the absence of any data on the child’s psychological stability, his attitude to his father at the present time, or the influence of relatives on the child’s attitude to his father.” 31. On 26 June 2013 the applicant complained to the Perm Regional Judicial Department that the judge had included a false statement in the case file that he had been informed of the date of the hearing by mobile telephone. He enclosed a list of telephone calls provided by his mobile operator showing that he had not received any calls from the court. He also complained that a letter notifying his counsel of the date of the hearing of 14 May 2013 had only been dispatched on 20 May 2013. 32. On 23 July 2013 the Perm Regional Judicial Department replied that the fact of the belated notification of the applicant’s counsel had been confirmed. Given that an appeal against the judgment of 14 May 2013 was pending, that issue would be examined during the appeal proceedings. 33. On 18 September 2013 the Regional Court held an appeal hearing. The applicant and his counsel were both present. The Regional Court upheld the judgment of 14 May 2013, finding that it had been lawful, sufficiently reasoned and justified. It noted that an expert opinion could not be obtained because V. had avoided the experts. It was impossible to take into account the expert opinion of 17 May 2013 because it had been made after the firstinstance judgment. The District Court also found that a notification letter about the hearing of 14 May 2013 had been sent to the applicant’s address but had been returned to the court as undelivered. The failure to collect the notification letter from the post office had amounted to a waiver of the right to attend the hearing. 34. On 24 December 2013 a judge of the Regional Court refused to refer the applicant’s cassation appeal to the Presidium of the Regional Court for examination, finding that the judgment of 14 May 2013 had been lawful, sufficiently reasoned and justified. She noted, in particular, that the expert opinion of 17 May 2013 could not lead the court to change its findings because the experts had not been able to examine N. 35. On 13 February 2014 a judge of the Supreme Court of the Russian Federation also refused to refer the applicant’s cassation appeal to the Civil Chamber of the Supreme Court for examination, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings. 36. Despite the court’s decisions, the applicant resumed contact with N. over time, meeting the boy at school, and having telephone and Skype conversations with him. 37. On 23 December 2014 the applicant brought new proceedings against V., seeking to have her guardianship of N. terminated and for N. to be returned to him. V. brought a counterclaim to have the applicant’s parental responsibility restricted and to prevent the applicant’s contact with the child. 38. On 23 April 2015 the District Court dismissed the applicant’s application, having regard to the evidence below. 39. The District Court noted that N. lived with his maternal grandmother and guardian V. and that his housing conditions were adequate. During an inspection of the child’s living conditions, he had explained that he was comfortable living with V., and that they had a trusting and warm relationship. He also explained that he wished to continue living with his grandmother, but maintain contact with his father by meeting him from time-to-time and communicating with him by telephone. 40. The applicant’s housing conditions were also adequate. 41. The District Court noted the applicant’s submission to the effect that during his absences for work the child would live with his paternal grandparents. It further noted that the conditions at the paternal grandparents’ house were also suitable and that they were ready to look after N. in the applicant’s absence. 42. The District Court questioned N., who explained that he lived with his maternal grandparents and that he liked living with them. The boy also submitted that he communicated with his father, who visited him at school and had regular telephone and Skype conversations with him. His father took an interest in his health and his school results. N. expressed a wish to remain living with his grandmother because he had got used to it. 43. The District Court further found that it was clear from school reports that N. was showing good results at school, that his mental capacity was above average and that he was interested in studying. N. was being brought up by his grandmother V., who was actively engaged in N.’s school life. The applicant regularly visited N. at school. After such meetings N. only talked about computers and computer games, was less interested in studying, and became more sensitive and reserved. 44. Having therefore taken into consideration N.’s age, the fact that he had been living with V. from the age of three, was attached to her, loved her and had expressed a wish to continue living with her, and that the applicant’s working schedule required long absences, the District Court held that the child’s interests required that he continue to live with his grandmother, which would be more favourable to his development. 45. The District Court dismissed V.’s counterclaims. It held that there were no grounds to restrict the applicant’s parental responsibility or to ban his communicating with N. The applicant had positive references from work, the compulsory medical measures he had been undergoing had been lifted and he was no longer under psychiatric supervision. The applicant also cared about his son’s life and health, sought communication with him, maintained contact with him over the telephone and Internet, visited him at school, and made regular child maintenance payments. There had furthermore been no evidence that the applicant had any harmful influence on the child. The District Court emphasised that domestic law provided that a child had a right to communicate with his parents and that a guardian had no right to prevent such communication, except if it was contrary to the child’s interests. 46. On 2 September 2015 the Regional Court upheld the above judgment on appeal. 47. On 30 September 2015 the childcare authority carried out a monitoring visit at the child’s place of residence. It was established that V. did not prevent N.’s communicating with the applicant. N. submitted that he saw the applicant during breaks between classes at school and communicated with him over the telephone and by Skype. | 0 |
test | 001-148922 | ENG | LVA | ADMISSIBILITY | 2,014 | SIMANOVIČS v. LATVIA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicant, Mr Jevgēnijs Simanovičs, is a “permanently resident noncitizen” of the Republic of Latvia who was born in 1966 and is currently serving a prison sentence Riga. He was represented before the Court by Ms A. Mazapša, a lawyer practising in Babīte. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce. 2. The relevant facts of the case as submitted by the parties may be summarised as follows. 3. As of 31 August 2004 the applicant was detained in Daugavgrīva Prison (Daugavgrīvas cietums). Prior to 1 November 2008 it had been named Daugavpils Prison (Daugavpils cietums). In the course of his detention the applicant also spent certain periods of time in other prisons. It appears that he stayed in Daugavgrīva Prison until 21 July 2011. 4. On 21 January 2009 the applicant complained to the Prisons Administration about the conditions in Daugavgrīva Prison. He asked to be released until prison conditions had been improved and requested a monetary compensation of 100,000 Latvian lati (LVL). 5. First of all, he submitted that the prison was overcrowded. He was housed in cell no. 208, which was occupied by ten persons, even though it had been designed for five. The situation was similar in other prison cells. On 9 September 2008 he had been transported to a hospital owing to heart problems. Upon his release from the hospital he had been returned to the same cell no. 208. 6. Furthermore, the applicant, a non-smoker, was exposed to cigarette smoke on a daily basis. 7. Also, two sets of bunk beds had been placed next to each other. The applicant had to sleep next to another man, and another inmate was sleeping above the applicant. His sleep suffered as a result, and his nervous system was also negatively affected. 8. Lastly, the applicant submitted that the cells were not equipped with emergency buttons in order to call for help. He generally stated that he was unable to purchase the necessary products in the prison shop. 9. On 27 February 2009 the Prisons Administration dismissed the applicant’s aforementioned complaint. 10. With regard to the issue of living space, the Prisons Administration found that the applicant had been provided with living space as required by statute, namely a minimum of 2.5 m² (see paragraph 47 below). In reaching that conclusion the Prisons Administration provided information on the floor area and intended number of inmates for each of the applicant’s cells between 18 October 2008 and 6 February 2009, including cell no. 208. 11. As to the applicant’s complaint of exposure to cigarette smoke, according to the applicant’s submissions of 10 November 2008 he had refused his transfer to a non-smoking cell. Also, on 8 January 2009 he had requested that two packs of cigarettes, a lighter and matches be purchased for him in the prison shop. 12. The Prisons Administration did not react to the complaint concerning bunk beds. 13. Lastly, it provided general information on the products available at the prison shop. 14. That decision could be challenged before the Administrative District Court (Administratīvā rajona tiesa). 15. On 9 March 2009 the Administrative District Court received the applicant’s complaint, as supplemented on 31 August 2009, regarding poor conditions in Daugavgrīva Prison over “a long period of time”. The applicant requested financial compensation. 16. He submitted that his health had deteriorated as a result of the conditions in the prison. He raised most of the same issues as previously before the Prisons Administration, namely overcrowding, his exposure to cigarette smoke, the bunk beds, and the absence of an emergency button. 17. He further criticised the first aid in response to his heart attack on 9 September 2008, and submitted that prior to his arrest in 2004 he had not suffered from heart problems. Following the heart attack, the applicant had refused his transfer to a single-occupancy cell because it already held two inmates and thus would not remedy his situation. He argued that he had purchased the cigarettes in order to use them to repel rodents. 18. In addition, owing to the large number of inmates, the applicant had difficulty in accessing sanitary facilities, including a non-partitioned toilet, and a table to have a meal. There was also a bad smell and a lack of ventilation in the prison cells. He was locked up in those conditions for twenty-three hours a day. 19. On 28 April 2010 the Administrative District Court dismissed the applicant’s complaint. 20. Concerning the issue of overcrowding, the District Court concluded that the information provided by Daugavgrīva Prison showed that between 18 October 2008 and 6 February 2009 the applicant had been held in prison cells with a surface area of at least 2.6 m² per person, which complied with statutory requirements. 21. As to the applicant’s confinement with smokers, the District Court held that the statutes did not require smokers and non-smokers to be held separately. However, such an obligation was incumbent on the prison once a convicted person had made a request to be transferred to a non-smoking cell. 22. In that regard, there was no evidence that the applicant had made such a request prior to his heart attack on 9 September 2008. He had made the request on 1 November 2008. Yet he had refused to be placed in non-smoking cell no. 223 because of certain conditions in that cell. However, there was no indication in the case file that the applicant had informed the prison of these issues and had requested that they be addressed or that he be moved to a different cell. That being the case, it could not be said that the prison had ignored the applicant’s requests in relation to non-smoking conditions and that he had been forced to share a cell with smokers. 23. As regards the bunk beds, the District Court did not accept that beds had led to the applicant’s being subjected to inhuman treatment. His sleep problem had nothing to do with the beds. It was a medical issue, concerning which the applicant ought to have consulted a prison doctor. 24. An appeal lay to a higher court against that decision of the Administrative District Court. 25. In his appeal of 30 April 2010, as supplemented on 22 August 2010, the applicant requested that the above-mentioned decision of District Court be quashed and that he be awarded compensation of LVL 100,000. 26. The applicant argued that the lower court had been mistaken in finding that he had been provided with a minimum of 2.5 m² of living space as required by the statutes. The floor space had been taken up by furniture and the toilet, thus reducing the available floor space. 27. He further complained that the statutes should also require, with regard to prisons, that separate, isolated and well-ventilated rooms be provided for smoking. The applicant had no complaints about other inmates smoking, since they were his friends. It was therefore illegitimate to require him to move to a different prison cell. Furthermore, a fine metal mesh had been installed on the windows hampering air circulation. As a result, the applicant had experienced renewed heart problems. 28. On 27 September 2011 the Administrative Regional Court (Administratīvā apgabaltiesa) examined the applicant’s appeal and partly granted his claim. 29. The Regional Court noted that during the court hearing the applicant had stated that he had been subjected to inhuman conditions for more than four years. It further stated that the scope of the case was limited to the matters in relation to which the administrative proceedings had been initiated. 30. As regards the applicant’s confinement with smokers, the Regional Court endorsed the lower court’s findings. 31. As to the applicant’s complaint of overcrowding, the Regional Court noted the recommendation of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) that at least 4 m² be provided per prisoner in multiple-occupancy cells, as mentioned by the Court in Bazjaks v. Latvia (no. 71572/01, § 37, 19 October 2010). 32. In the applicant’s case, that standard had not been complied with for a period of 104 days, namely between 18 October 2008 and 30 January 2009. Also, as a result of overcrowding, the ventilation during that time had been inadequate. Consequently, the applicant had suffered treatment in breach of the prohibition of torture. 33. In determining the amount of compensation to be paid, the Regional Court took into consideration the degree and duration of the violation of the applicant’s rights. It referred to the case-law of the administrative courts. It also observed that in Bazjaks the Court had awarded 11,700 euros (EUR) where a person had been held for a year in conditions of overcrowding and also of limited out-of-cell activities, lack of personal hygiene products (soap, toothbrush, toilet paper), insufficient ventilation and natural light; in addition, there had been a suspicion that the person had contracted tuberculosis while in detention (ibid., §§ 112-116). 34. That being the case, the Regional Court deemed that compensation of LVL 700 (roughly corresponding to EUR 1,000) was appropriate in the applicant’s situation. 35. That judgment was open to appeal before the Administrative Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments). 36. On 9 September 2011 the applicant lodged an appeal on points of law against the above judgment of the Regional Court. He requested that the Senate of the Supreme Court re-calculate the compensation awarded. 37. He submitted that the appeal court had not taken all the circumstances into account. He further specified that he had been detained in Daugavgrīva Prison in inhuman conditions for a long period of time, namely four years and two months, and that owing to those conditions he had had a heart attack. 38. For each day spent in Daugavgrīva Prison the applicant claimed EUR 100 in compensation, in total EUR 152,000, which he had rounded to LVL 100,000. 39. On 22 June 2012 the Senate of the Supreme Court upheld the impugned judgment and dismissed the applicant’s appeal on points of law. 40. It affirmed that Article 3 of the Convention had been violated in the applicant’s case on account of the small living space and insufficient ventilation, which had been switched on for only one or two hours every day. 41. With regard to the applicant’s complaint regarding the period of time considered by the Regional Court, the Senate held that the circumstances of which the applicant had complained to the Prisons Administration had been scrutinised in the present case. First, his complaint in relation to a non-smoking cell had been dismissed, and in that part the Regional Court’s judgment had become final. Further, he had complained about the size of the prison cells. The Senate ruled that none of the facts of the case had been disregarded by the Regional Court. 42. That judgment was final. 43. On 9 July 2012 the applicant lodged a complaint with the Prisons Administration about conditions of detention in Daugavgrīva Prison between 31 August 2004 and October 2008. 44. On 8 August 2012 the Prisons Administration dismissed that complaint as out-of-time. 45. Furthermore, in the final decision of the Administrative Regional Court of 11 January 2013 the court proceedings were also rejected in view of the belated nature of the applicant’s complaint. 46. In regard to Article 95 of the Constitution (Satversme) prohibiting the torture and cruel or degrading treatment of a person, see Cēsnieks v. Latvia (no. 9278/06, § 48, 11 February 2014). Moreover, Article 92 enshrines everyone’s right to adequate compensation in the event of an unlawful interference with his or her rights. 47. Article 77 of the Sentence Enforcement Code (Sodu izpildes kodekss), which provides for living space in dormitorytype prison cells of no less than 2.5 m² per person for men, was cited in Jegorovs v. Latvia ((dec.), no. 53281/08, § 71, 1 July 2014). 48. The Administrative Procedure Law (Administratīvā procesa likums) came into force on 1 February 2004. It provides, among other things, for the right to challenge the actions of public authorities (faktiskā rīcība) before the administrative courts (see D.F. v. Latvia, no. 11160/07, § 40, 29 October 2013, and Melnītis v. Latvia, no. 30779/05, § 24, 28 February 2012). | 0 |
test | 001-154555 | ENG | DEU | ADMISSIBILITY | 2,015 | BEZEK v. GERMANY | 4 | Inadmissible | Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applicants are Turkish nationals. The applicant in the first case, Mr Ahmet Bezek, was born in 1980 and is represented before the Court by Mr U. Sommer, a lawyer practising in Cologne. The applicant in the second case, Mr Sinan Bezek, was born in 1976 and is represented before the Court by Mr G. Bogatz, a lawyer practising in Bendestorf. Both applicants are currently serving a prison sentence in Bremen. 2. 3. In the night of 5/6 January 2006 a shooting took place in front of a nightclub in the Bremen entertainment district which left several persons seriously injured. 4. On 11 December 2007 a Chamber of the Bremen Regional Court, consisting of the presiding judge S., the judge P., one further professional judge and two lay judges, convicted G.L. of attempted manslaughter, grievous bodily harm and unlawfully carrying a firearm and sentenced him to ten years and six months imprisonment. 5. Based on G.L.’s confession, which was supported by witness evidence, the Chamber considered that G.L. had started the shooting into a group of people standing in front of the night club, thereby accepting that he might inflict lethal injuries. The Chamber did not attach credibility to G. L.’s submissions that the applicants had not been involved in the shooting incident, but considered that G.L. had committed the offences jointly with the two applicants. Based on witness evidence and an expert examination of bullets found on the site, the Chamber considered that the first applicant had fired at least three shots and the second applicant at least one shot. The Chamber considered that G.L. and the applicants had acted upon a joint plan, resulting in each perpetrator being liable for the acts committed by his accomplices under Article 25 § 2 of the Criminal Code as joint principals (Mittäterschaft, see relevant domestic law, below). 6. The judgment, which was 151 pages long, inter alia contained the following references to the applicants: “All three of them [G.L. and the two applicants] had been equipped with firearms. It was clear to them – even without an express agreement, that they would make use of the weapons they carried if the situation should arise....At that time at the latest witness Ahmed Bezek [the first applicant] carried a silver revolver with a 9 mm calibre and Sinan Bezek [the second applicant] a pistol, calibre 7.65 mm, which had been assembled from various weapon parts (p. 34 of the judgment)...Immediately after the accused had fired the first shot, Ahmet and Sinan Bezek drew their weapons and fired in the direction of the B.club (p. 36)...many persons...found themselves within the shooting range of the applicant and of Ahmed and Sinan Bezek (p. 37)...their [the witnesses’] statement is supported by the fact that the accused and the Bezek brothers [the applicants] actually carried weapons (p. 78). The establishment of the facts relating to the other shooters is based on the credible witness statements given by...[The witness] M. has stated that the accused and witnesses Ahmed and Sinan Bezek each carried a weapon in their hand (p. 100)...These statements were confirmed by the testimony given by witness K. He [reported] that he had seen that Sinan Bezek as well as Ahmet Bezek had carried a weapon. Both had shot very rapidly and had then disappeared (p. 100). ... Witness K. has stated that he had heard two shots before arriving at the scene. Shortly afterwards it had really started. He had seen how Sinan Bezek, Ahmet Bezek and the accused had shot (p. 100). Finally, witness D. had stated that he had seen weapons not only in the hands of the accused, but also in the hands of Ahmet and Sinan Bezek, but could not tell for sure whether these two had shot. The accused’s weapon as well as Sinan Bezek’s weapon was black and did not have a drum (p. 100/101). On the basis of the traces and other evidence it has been established...that the projectile with the casing numbered trace no. 28 has been shot from the weapon that had been fired by Sinan Bezek (pp. 105/106). The establishment of the fact that Sinan Bezek was one of the shooters is compatible with the witness testimony (p. 104)....These two pistols had been used by the accused and Sinan Bezek (p. 106)...Sinan Bezek’s pistol was jammed after the first shot (p. 106). The accused is guilty under Articles....of the Criminal Code of attempted manslaughter, causing serious bodily harm and unlawful carrying of a semi-automatic gun, jointly committed with the brothers Ahmet and Sinan Bezek (p. 130)....According to the established facts, the applicant and the witnesses Ahmet and Sinan Bezek had reached at least a tacit understanding to return to the entry of the “T.” [nightclub] and to use the weapons they carried in the expected confrontation with the M.group (p. 131)...The context of the proceedings demonstrates that each of the three shooters was aware of the fact that the respective other ones were armed (p. 131)...The accused’s firing of the first shot had prompted Sinan and Ahmet Bezek to use their own weapons without delay and without any apparent reason (p. 132).” 7. When giving an oral summary of the reasons of the judgment, the presiding judge S. also referred to the alleged involvement of the two applicants in the incident. 8. Both applicants were arrested on 6 January 2006 and remained in detention on remand until 21 April 2006. The second applicant was further detained on remand from 17 January 2008 to 28 January 2009 and as from 17 April 2009 until the termination of the criminal proceedings against him. 9. On 29 February 2008 the Bremen Public Prosecutor issued an indictment against the applicants for attempted manslaughter and violation of the Weapons Act. The Chamber adjudicating the applicants’ case comprised the presiding judge S. and the judge P. – who had both been sitting on the bench in the trial against G.L. – one further professional judge and two lay judges. 10. Since March 2006, the second applicant had been represented by Ms P., a defence counsel who maintained her lawyer’s offices in Frankfurt/Main. The second applicant requested the Regional Court to appoint Mr Bogatz, who also represents him before the Court, as his second counsel. 11. On 25/26 March 2008 the presiding judge of the Regional Court requested the applicants’ counsels to inform him about their availability from 28 April to 31 December 2008. 12. On 31 March 2008 Ms P. informed the Regional Court that she would be available as from May 2008 at the earliest. She further suggested scheduling hearings on two days per week, on Mondays and Fridays. She further stated that the second applicant’s defence would be assured in case Mr Bogatz was appointed as second defence counsel. She pointed out that a second defence counsel had been also appointed in the proceedings against G.L. 13. On 2 April 2008 the presiding judge of the Regional Court informed the applicants’ counsels about the dates of the intended hearings, generally scheduled for three days per week, and asked them to confirm their respective availability. In view of the fact that each of the applicants would only be represented by one court-appointed counsel, it was of imminent importance that the respective counsels arrived in time for the hearings. He further informed the applicants’ counsels about his intention to withdraw the appointment of Ms P. as the second applicant’s court-appointed defence counsel, in view of the distance between her lawyer’s offices situated in Frankfurt/Main and the Bremen Regional Court where the hearings would take place. 14. On 18 April a preliminary talk took place between the presiding judge, judge P., public prosecution and the applicants’ defence counsels. According to a note to the case-file prepared by the presiding judge following this discussion, Ms P. had not been able to submit a binding declaration that she would be available on all hearing days. 15. On 23 April 2008 the presiding judge of the Bremen Regional Court withdrew the appointment of Ms P. as the second applicant’s counsel, rejected his request to appoint Mr Bogatz and appointed another counsel, residing in Bremen, as the second applicant’s defence counsel. The Presiding Judge observed that neither of the counsels had confirmed their availability for all the scheduled hearing days. He further observed that the special relation of confidence existing between Ms P. and the second applicant made it desirable that she could continue her assignment. The lawyer of confidence should regularly be assigned unless serious reasons militated against this. However, in the instant case, the remoteness of Ms P.’s offices made it necessary to withdraw her appointment. Under the relevant provisions of the Code of Criminal Procedure, precedence was to be given to lawyers residing in the respective court district. The proximity of the defence counsel was an important aspect of an appropriate defence and of an orderly course of the proceedings. This factor was enhanced by the fact that the accused was in detention on remand and that the proceedings would be lengthy. In spite of the requirement of special expediency in case of detention on remand, Ms P. had failed to submit a binding declaration that she would be available on all (or at least almost all) pre-scheduled hearing dates. The presiding judge finally observed that the further assignment of Ms P. would cause considerable additional expenses caused by times of absence, travel and accommodation costs. 16. On 9 June 2008 the Hanseatic Court of Appeal dismissed the second applicant’s complaint about this decision. The Court of Appeal considered that the presiding judge of the Bremen Regional Court, when withdrawing Ms P.’s appointment, had stayed within his margin of appreciation. That court noted that the presiding judge had given several objective reasons for his decision. The distance between the defence counsel’s offices and the court seat was an important aspect in assuring adequate defence. While it was true that Ms P. had entertained her offices in Frankfurt already at the time when she was first appointed defence counsel in July 2006, this did not rule out the withdrawal of appointment, in particular if further reasons emerged during the course of proceedings. In this respect, the Court of Appeal observed that the second applicant had been arrested in January 2008 and that his case had to be processed with the special diligence required in case of detention on remand. In spite of the presiding judge’s repeated requests, Ms P.’s had failed to submit a binding and unequivocal statement that she would be able to attend all – or almost all – of the scheduled hearings. The Hanseatic Court of Appeal finally observed that the second applicant had failed to establish a specific relation of confidence to Ms P. which would exceptionally justify the exorbitant costs which would be incurred by her appointment as the applicant’s defence counsel. 17. Ms P. continued to represent the second applicant as his chosen defence counsel until 3 February 2009, when her mandate was discontinued for lack of funds. 18. On 18 and 25 June 2008 the applicants lodged motions for bias against the two judges S. and P. on the grounds that they had both been sitting on the bench which had delivered judgment against the alleged coperpetrator G.L. They considered the Chamber adjudicating the case of G.L. had taken a definite position on the applicants’ guilt. The findings contained in the judgment against G.L. which related to the applicants’ alleged involvement had not been necessary, as G.L. had made a confession in which he had assumed the full responsibility for the shooting incident. The second applicant further referred to the withdrawal of Ms P. as his defence counsel. 19. On 27 June 2008 another Chamber of the Regional Court rejected the motions for bias as unfounded. The Regional Court reiterated that a mere prior involvement concerning the same matter did not as such raise doubts as to the judges’ impartiality. There were no specific circumstances which allowed drawing a different conclusion in the instant case. The references made to the applicants’ involvement in the shooting incident had been indispensable for establishing G.L.’s criminal liability within the framework of a joint criminal act. In order to establish the guilt of the accused, the trial chamber had been obliged to assign the different contributions to the different persons involved in the incident. The same applied to the oral summary of the reasoning given by the presiding judge on pronouncement of the judgment against G.L. 20. The Bremen Regional Court heard the applicants’ case on 119 days as from 25 June 2008. 21. On 4 March 2010 the Bremen Regional Court convicted the applicants, who had denied any involvement in the shooting incident, of attempted manslaughter, grievous bodily harm and unlawfully carrying a firearm and sentenced the first applicant to eight years’ and the second applicant to seven years’ imprisonment. Based on witness evidence, which was corroborated by circumstantial and expert evidence, the Regional Court found it established that the two applicants had taken part in the shooting of 6 January 2006 and that the second applicant had fired one shot and the first applicant at least three shots before their weapons were jammed. The Regional Court furthermore found it established that the applicants had worked as contact persons for the Bremen police, but did not consider that this fact had an influence on their criminal liability. 22. The judgment, which ran over 354 pages, contained a summary of the previous proceedings. With regard to the judgment given against G.L., the judgment read as follows: “The Jury Court I convicted him [G.L.] of attempted manslaughter, grievous bodily harm and unlawfully carrying a firearm and sentenced him to 10 years and 6 months’ imprisonment. At that time, the Jury Court I had gained the conviction that G.L., jointly with Ahmet and Sinan Bezek, who are accused here, fired a multitude of shots into a group of people standing in front of the “B.club”. The judgment against G.L. is now final. G.L. was summoned twice to give testimony as a witness in the instant proceedings. Even though he had no right to refuse to give evidence, he refused in the instant proceedings to give testimony...” 23. Both applicants lodged appeals on points of law against the judgment of 4 March 2010, in which they inter alia complained about the lack of impartiality of the Jury Court adjudicating their case. The second applicant further complained about the withdrawal of appointment of Ms P. as his defence counsel. On 21 June 2011 the Federal Court of Justice dismissed the applicants’ appeal on points of law. 24. On 3 August 2011 the Federal Constitutional Court refused to entertain the applicants’ constitutional complaints. 25. Article 142 § 1 of the Code of Criminal Procedure as in force at the relevant time provided: “(1) The presiding judge of the [trial] court choses the defence counsel to be appointed preferably among the lawyers residing in the court district. The accused shall be given the opportunity to name defence counsel of his choice within a time limit to be specified. The presiding judge appoints the defence counsel designated by the accused unless there is an important reason for not doing so.” 26. Pursuant to Article 155 § 1 of the Code of Criminal Procedure, criminal investigations and related decisions concern only the accused and the charges brought against him or her. Article 264 § 1 stipulates that a judgment rendered in criminal proceedings shall deal with the offence set out in the bill of indictment as determined in more detail in the light of the outcome of the trial. 27. Article 25 of the Criminal Code provides as follows: Principals “(1) Any person who commits the offence himself or through another shall be liable as a principal. (2) If more than one person commit the offence jointly, each shall be liable as a principal (joint principals).” | 0 |
test | 001-184635 | ENG | NLD | ADMISSIBILITY | 2,018 | ZALOILO v. THE NETHERLANDS | 4 | Inadmissible | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom | 1. The applicant, Mr Joeri Borisovitch Zaloilo, was born in 1980 in Tblisi and lives in Schiedam. His nationality is stated to be unknown. He was represented before the Court by Ms H.H.R. Bruggeman, a lawyer practising in Lisse. 3. The applicant was detained for the purpose of deportation in the Rotterdam detention centre, a remand centre accommodating persons in immigration detention. 4. On 25 August 2011 the governor of the detention centre gave a disciplinary decision placing the applicant in solitary confinement for fourteen days. The written confirmation of the decision, handed to the applicant on 28 August 2011, states the following grounds: “You have displayed seriously inflammatory behaviour and incited your fellow detainees to an uprising. You have incited them to disobey the instructions of staff. You have refused, with a number of fellow detainees, to return to your cell. You have tried to prevent your fellow detainees from obeying the instructions of staff. You have seriously intimidated staff and forced them to open the door of the cell to let out one of the detainees who was already locked in.” The term of solitary confinement was to end on 8 September 2011. 5. On 26 August 2011 the applicant submitted a complaint form stating that he had incited no one to rise against the prison staff and requesting the hearing of witnesses to prove it. 6. On 31 August 2011 the applicant, through his lawyer, lodged a formal complaint (beklag) against the solitary confinement decision with the supervisory board (Commissie van Toezicht) of the institution. 7. Also on 31 August 2011 the applicant lodged a request for the suspension of the solitary confinement measure with the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming) (hereafter “the Appeals Board”). 8. On 8 September 2011, immediately after the end of his term of solitary confinement, the applicant was transferred to the remand centre (huis van bewaring) within the penal institution “De Schie” in Rotterdam, a regular prison, on the orders of the governor of the Rotterdam detention centre. The decision ordering the transfer was not given in writing. 9. Also on 8 September 2011 the applicant lodged an objection (bezwaar) against the decision to place him in the remand centre within “De Schie”, together with a request for its suspension, with the Appeals Board. 10. On 16 September 2011 the Chairman of the Appeals Board ordered the suspension of the applicant’s placement in the remand centre within “De Schie” on the formal ground that the transfer decision had been given irregularly by the governor of the Rotterdam detention centre instead of by the selection officer (selectiefunctionaris) of the Ministry of Security and Justice. 11. Also on 16 September 2011 an official signing in the joint capacity of selection officer and head of the Bureau for the Coordination of Matters Concerning Aliens (Hoofd Bureau Coördinatie Vreemdelingenzaken) gave an order, effective on the same day, for the applicant to be transferred to the remand centre within “De Schie”. The decision stated the following reasons: “During your stay in the Rotterdam detention centre you have endangered order, peace and quiet and security by inciting to an uprising and by particularly intimidating conduct towards staff.” 12. On 22 September 2011 the applicant, through his lawyer, lodged an objection against this decision also. As relevant to the case before the Court, he alleged a violation of Article 6 of the Convention in that he had not been heard before this decision was taken. 13. It is noted in the decision of the Appeals Board (see paragraph 18 below) that on 7 October 2011 the governor of the Rotterdam detention centre wrote to the applicant recognising that his detention in the remand centre within “De Schie” between 8 September 2011 and 16 September 2011 had not been based on a decision in proper form and that he was entitled to monetary compensation on that account. 14. On 24 October 2011 the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens of the Ministry of Security and Justice gave a decision on the applicant’s objection of 8 September 2011 (see paragraph 9 above). This decision stated that the governor of the detention centre had decided on 25 August 2011 that the applicant should be transferred to the remand centre within “De Schie” in Rotterdam on 8 September 2011, immediately after the end of his term of solitary confinement. However, since the governor had not the competence to give such a decision, a formal decision to this effect – dated, or backdated, 8 September 2011 but not committed in writing – was taken by the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens instead. 15. The applicant’s objection was declared inadmissible as out of time, the decision in issue having been taken on 25 August 2011 and the time-limit for lodging an objection being only seven days. It was added that the objection would have been dismissed as unfounded even if it had been admissible: the applicant had been transferred to a regular remand centre for legitimate operational reasons (om beheersmatige redenen) in view of his misbehaviour. 16. On 24 October 2011 the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens of the Ministry of Security and Justice gave a decision dismissing the applicant’s objection of 16 September 2011 as unfounded. As relevant to the case before the Court, it included the following reasoning: “I have been informed by the governor of the Detention Centre that the person concerned has played an active part in the uprising on 25 August 2011 in the Rotterdam Detention Centre. The person concerned (was among those who) created the uprising. He displayed inflammatory behaviour and repeatedly incited other detainees to rise up. He has refused to follow instructions given by staff and has encouraged others to do the same. He has forced the staff in a threatening way to release detainees who had been already locked in. The staff has complied in order to prevent further escalation. The person concerned has seriously intimidated the staff and seriously endangered order and security. The person has been placed in a regular remand centre for operational reasons in view of the disturbance he has caused in the Rotterdam detention centre, his prison history (which has also led to his being declared an undesirable alien (ongewenste vreemdeling)), and because he escaped from the Zeist detention centre on 7 January 2011. In taking a placement or transfer decision I may reasonably trust the relevant information given me by the governor of the institution. My competence to transfer the person concerned to a different institution is not affected by the fact that the lawfulness of the governor’s decision, i.e. the disciplinary measure, is not yet established in law.” 17. On 31 October 2011 the applicant, through his lawyer, appealed against the latter decision to the Appeals Board. As relevant to the case before the Court, he denied any wrongdoing; he complained of failures to hear staff of the Rotterdam detention centre and fellow detainees as witnesses and of the failure to make videotaped recordings of the incident available for viewing. 18. The Appeals Board gave its decision on 23 January 2012. It dismissed the applicant’s appeal. As to the fact that the applicant’s placement in the remand centre within “De Schie” between 8 and 16 September 2011 had not been based on any decision, the Appeals Board took note of the governor’s letter of 7 October 2011 recognising that fact (see paragraph 13 above) and referred the applicant to the governor of the Rotterdam detention centre himself for the compensation to which he was entitled. As relevant to the case before the Court, its decision further read as follows: “4.2. ... The complainant [i.e. the applicant], on whom immigration detention has been imposed, belonged to the category of detainees for whose accommodation remand centres are intended. ... 4.4. A sufficient case has been made out on the basis of the submissions made on appeal as well as the reports drawn up about the complainant that the behaviour of the complainant could justify his transfer to a different institution. 4.5. In situations that so require, such as the present, in which a further stay in a detention centre intended specifically for aliens is no longer a possibility, it is permitted, given the circumstances of the particular case, to place the detained alien concerned in an ordinary remand centre. The complainant has brought his transfer to the remand centre upon himself by his behaviour. In the remand centre, which has no separate department for aliens, the complainant’s status of alien is (as is apparent from the file) taken into consideration inasmuch as he is accommodated in a single-person cell. The appeal will therefore be declared unfounded.” 19. As relevant to the case before the Court, the Aliens Act (Vreemdelingenwet 2000) provides as follows: “1. If necessary in the interest of public order or national security, the Minister may order the detention of any alien who: a. is not lawfully resident [in the Netherlands]; ...” 20. As relevant to the case before the Court, the Aliens Decree 2000 (Vreemdelingenbesluit 2000) provides as follows: 1. Detention based on section 59 ... of the Aliens Act 2000 shall be executed in a police station, a Netherlands Royal Constabulary (Koninklijke Marechaussee) cell, in a remand centre (huis van bewaring) ... The execution of the detention shall not impose further restrictions on the alien’s exercise of his or her basic rights than is necessary for the purpose of this measure and the maintenance of order and safety in the place where [the detention] is put into effect. 2. If the execution of the detention takes place in a police station or a Netherlands Royal Constabulary cell, then as soon as reasonably possible such execution shall be continued in a remand centre. ... 3. Detention shall be terminated as soon as grounds for it no longer exist.” 21. The framework for the execution of detention based on section 59 of the Aliens Act 2000 is constituted by the Prisons Act (Penitentiaire Beginselenwet), which as relevant to the case before the Court provides as follows: “... 4. Persons subject to the execution of a custodial sentence or measure (vrijheidsstraf of vrijheidsbenenemde maatregel) shall be subjected to no further restrictions than necessary for the purpose of the detention or in the interest of maintaining order or safety within the institution. ...” 1. Custodial institutions (inrichtingen) are categorised as remand centres (huizen van bewaring), prisons (gevangenissen) and institutions for systematic offenders (inrichtingen voor stelselmatige daders). ... 2. Remand centres are intended to accommodate: a. persons in respect of whom an order for detention on remand (voorlopige hechtenis) has been given and who are awaiting trial at first instance; ... d. persons in immigration detention; ...” “1. If a civil servant or staff member finds that a detainee is involved in acts incompatible with order or security in the institution or with the unimpeded execution of the detention and he intends to report on this in writing to the governor, he shall so inform the detainee. 2. The governor shall decide on the imposition of a disciplinary penalty as soon as possible after the report has been submitted to him. ...” “1. The governor may impose the following disciplinary penalties for the commission of acts as referred to in section 50(1): a. confinement in a punishment cell or another living space (verblijfsruimte) for no more than two weeks; ... ... 6. If a penalty is imposed, it shall be executed without delay. ...” 22. In the Netherlands, three remand centres are especially reserved for accommodating persons undergoing immigration detention: the Zeist Detention Centre (Detentiecentrum Zeist), the Schiphol (Amsterdam) Airport Detention Centre (Justitëel Complex Schiphol) and the Rotterdam Detention Centre (Detentiecentrum Rotterdam). | 0 |
test | 001-147036 | ENG | RUS | CHAMBER | 2,014 | CASE OF KOSUMOVA v. RUSSIA | 3 | Remainder inadmissible;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);Non-pecuniary damage - award | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 7. The applicant was born in 1938 and lived in Kharachoy. She was the mother of Raisa Kosumova, born in 1967, and the widow of Alikhazhi Kosumov, born in 1932. 8. On 7 June 2003 at about 5 p.m. an operational investigative group composed of officers of the Vedenskiy District Prosecutor’s Office (“the District Prosecutor’s Office”), the Vedenskiy District Department of the Interior (“ROVD”), the Criminal Police of the Provisional Task Force of the Russian Ministry of the Interior and the Directorate of the Federal Security Bureau for the Vedenskiy District (“UFSB”), were driving several vehicles along the Dyshne-Vedeno-Kharachoy road, returning from Kharachoy to the village of Vedeno. One of the vehicles of the convoy was blown up and thrown down a steep slope by the explosion into the nearby River KhulKhulau. Several officers in the vehicle were wounded and two were killed instantly. 9. After the explosion, the police officers called for reinforcements. In the following hour and fifteen minutes an armoured unit, a reconnaissance unit of the Vedenskiy District military command and a special operations unit of the FSB arrived at the scene. After the reinforcements arrived, unidentified forces started firing mortars at the forested slopes. Shells were exploding on the roadside less than 100 metres from the explosion scene. 10. Meanwhile, the applicant’s daughter was driving her GAZ-66 truck from Vedeno to Kharachoy. As she passed the scene of the explosion, mortar shells started exploding on the roadside. She received a wound to the head and died instantly. Two FSB officers were also wounded and hospitalised. 11. On 16 January 2004 the civil registration office of the Vedenskiy District issued a death certificate (no. 13), certifying that Raisa Kosumova, aged 35, had died on 7 June 2003 in Kharachoy in the Vedenskiy District, from a shell wound to the head. 12. Around the time the applicant’s daughter died, the applicant’s seventy-year-old husband was ill. Concerned for her husband’s health, the applicant hesitated about telling him about their daughter’s death. 13. The applicant’s husband found out about their daughter’s death on 1 July 2003. He could not cope with her loss and died two days later, on 3 July 2003. 14. On 7 June 2003 the District Prosecutor’s Office instituted criminal proceedings into the death of the applicant’s daughter under Article 109 § 1 of the Russian Criminal Code (negligent homicide). An on-site inspection and an inspection of the applicant’s daughter’s body were carried out. 15. On 10 June 2003 the chief assistant of the District Prosecutor’s Office sent an order to the Vedenskiy District Temporary Department of the Interior (“VOVD”), the Vedenskiy District ROVD and the UFSB requesting them to carry out without delay the necessary operational-search measures for establishing who had been involved in the death of the applicant’s daughter. 16. On the same day two officers of the Vedenskiy ROVD were questioned about the circumstances of the events of 7 June 2003. 17. On 17 June 2003 a post-mortem examination of the applicant’s daughter’s body was completed. It was established that she had died from a vast penetrating head wound resulting in brain damage. 18. On 29 June 2003 the Vedenskiy District UFSB replied to the request of 10 June 2003, stating that it had appeared impossible to identify the individuals involved in the death of the applicant’s daughter. 19. On 25 July 2003 the applicant was granted victim status in the proceedings. She was questioned on the same day. 20. On 7 August 2003 the criminal proceedings were suspended. The heads of the Vedenskiy District VOVD, ROVD and UFSB were instructed to carry out the necessary operational-search activities with a view to identifying the possible suspects. The applicant was not informed of this decision. 21. For the next two and a half years, the applicant attempted, in vain, to find out how the investigation was progressing, and made various enquiries to the competent domestic authorities. 22. On 20 January 2006, with the help of a lawyer provided to her by the NGO Committee Against Torture, the applicant obtained a reply from the District Prosecutor’s Office and copies of the decisions of 7 June 2003 (instituting criminal case no. 24041), 25 July 2003 (acknowledging her victim status in the proceedings and setting out her procedural rights), and 7 August 2003 (suspending the preliminary investigation for failure to identify those responsible for the events in question). 23. On 16 December 2006 the proceedings were resumed. The decision of 7 August 2003 was found to be unlawful and the investigation incomplete and superficial. A copy of the decision was sent to the applicant. 24. On 19 December 2006 the District Prosecutor’s Office requested the head of central archives at the Ministry of Defence to provide copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003. 25. On the same day the investigator of the District Prosecutor’s Office questioned I. P., head of the artillery armament service of military unit no. 6780 based in Vedeno, who stated as follows: “The following procedure is in place for deploying mortar batteries. Once the command has been received, the mortar battery’s officer-on-duty is given an order which includes [such information as]: the number of shells, target coordinates, the time of firing, and the time of ceasefire. The battery’s officer-on-duty transmits the command to the officer-on-duty, who alerts the crew-on-duty and issues an order in accordance with the command received. As soon as the firing has been ceased, the battery’s officer-on-duty reports to the initiator of the firing, then the latter reports to the Command of the United Group Alignment (“UGA”) ... Within twenty-four hours the battery commander files a report in order to write off the ammunitions used, indicating the initiator of the firing, the time, target coordinates, and the number of shells used. The report is then approved by the military unit commander ... and agreed with the local department of the FSB. I then receive the report, and prepare an ammunitions expenditure account. Next, the account and the report are attached to a secret file that I keep. The file is kept for five years and is then destroyed ... I don’t know if the military units of the Ministry of Defence previously deployed on the territory of Vedeno and Dyshne-Vedeno had the same procedures in place.” 26. On 27 December 2006 the District Prosecutor’s Office sent requests to the Vedenskiy District ROVD to establish the whereabouts of officers D. G., V. N., V. K., O. L., M. K. and A. A., who had served there on a contract basis in June 2003. On the same day the District Prosecutor’s Office requested the Igrinskiy District ROVD of the Republic of Udmurtiya to question O. Sh., who had served at the Vedenskiy District ROVD in June 2003 as an expert criminologist. 27. On 28 December 2006 the District Prosecutor’s Office requested the head of the Vedenskiy District ROVD to guarantee the attendance of its officers L. Sh., A. I., Kh. Kh., R. M. and Yus. Sh., for questioning as witnesses to the events of 7 June 2003. 28. On 3 January 2007 the investigator of the District Prosecutor’s Office questioned police officer Kh. Kh., who stated that on 7 June 2003 he had been wounded in the explosion and taken to hospital in Grozny and could not therefore provide any information about the subsequent mortar attack. 29. On 4 January 2007 the investigator questioned police officer A. T., who claimed to have left the scene of the explosion to provide help to the wounded and could not therefore clarify the circumstances of the mortar attack. 30. On 8 January 2007 the District Prosecutor’s Office sought the assistance of the UFSB for the Chechen Republic in establishing the whereabouts of Captain A. K. and Ensign S. Zh., wounded during the mortar attack on 7 June 2003, in order to question them as victims of the attack. On the same day the District Prosecutor’s Office requested the Prosecutor’s Office of the Chechen Republic to provide them with personal data and contact information for two former officers of the Vedenskiy District Prosecutor’s Office, A. P. and A. An., in order to guarantee their attendance for questioning as witnesses to the events of 7 June 2003. 31. On 15 January 2007 the investigator of the investigations department of the Vedenskiy District VOVD questioned witness S.-Kh. M., who stated that on 7 June 2003 the operational investigative group had arrived in Kharachoy to investigate an attack by members of an illegal armed group on civilians (murder and arson). After the investigative group had left, he, I. D. and A. T. went to the cemetery to bury the victims. From the cemetery they heard an explosion and then saw that a district police vehicle had been blown up. As they approached, they saw that several police officers had been wounded and killed. They started helping by providing first aid and evacuating the wounded. On their way from the gorge to the road leading to Dyshne-Vedeno, he heard detonations. A GAZ-66 truck driving on its way to Kharachoy passed them by. He knew that the driver of the truck was a woman from Kharachoy. Later he knew from the officers who had remained at the scene of the explosion that the detonations he had heard had been mortars. He did not know whether the scene of the explosion had been subjected to shelling by members of an illegal armed group or the federal forces. 32. On 16 January 2007 the criminal proceedings were suspended for failure to identify those responsible for committing the crime. On 16 February 2007 the investigation was subsequently resumed, but suspended again on 16 April 2007. 33. In the meantime, on 17 January 2007 the UFSB for the Chechen Republic informed the District Prosecutor’s Office that in 2003 Captain A. K. and Ensign S. Zh. had served in the UFSB as undercover agents, which was why their whereabouts could not be revealed. 34. On 29 January 2007 witness I. D. was questioned. His statements were consistent with the statement by S.-Kh. M. (see paragraph 31 above). 35. On 30 January 2007 the acting prosecutor of the District Prosecutor’s Office approached the military prosecutor of military unit no. 20102 for assistance in obtaining information from the UGA as to whether the mortar batteries used on 7 June 2003 had belonged to the military units and divisions deployed in the Vedenskiy District, with an indication of the time of firing, target coordinates and the number of shots. 36. On 6 February 2007 the central archives of the Ministry of Defence provided a document stating as follows: “[On] 7 June 2003 [at] 17.10 on the ROVD officers’ return trip in the UAZ-452 truck from the village of Kharachoy a landmine exploded on the 4.5 metre-high slope near the road, one kilometre south-east of the village of Dyshne-Vedeno. Losses: “200” – 2, “300” – 10 pers.” 37. On 13 February 2007 witness V. N., a former officer of the Vedenskiy District ROVD, was questioned. He stated as follows: “From 17 January 2003 to 8 January 2006 I served under contract as chief of police at the Vedenskiy District ROVD. [I] participated in counterterrorism operations in accordance with the assignments of [the ROVD]. Indeed, on 7 June 2003 at about 8 a.m. the Vedenskiy District ROVD received information that a group of [approximately] eighty rebel fighters had entered the village of Kharachoy and murdered two women, ... set four houses on fire and committed other crimes. At about 2 p.m. as part of a militarised convoy of the operational investigative group, I went to the village to carry out urgent investigative measures. The convoy consisted of six vehicles. After completing the investigative measures, as the convoy was returning back to Vedeno near the gorge three kilometres from Kharachoy, a UAZ vehicle was blown up by an explosive device hidden by the road and fell down the abyss from a height of 20 metres ... The incident was reported to the ROVD and Military Commandant’s Office, and a call for reinforcements was made. The officers of the operational investigative group participated in the evacuation of those killed and wounded [by the explosion]. After the reconnaissance unit arrived, the road was blocked by an armoured personnel carrier (APC). At the same time, at about 5.30 p.m. mortar shelling of the nearby area began. I don’t know who opened fire. The explosions hit the forested area on the mountain slopes; there were about fifteen explosions altogether. Judging by the sound characteristic of a flying shell, I concluded that the firing was from mortars. I don’t know which direction the firing came from, [since] it is impossible to establish the direction of mortar fire. It is difficult to say whether the shelling was carried out by officers of the federal forces or members of the illegal armed group. After the road was blocked by the APC, a civilian GAZ-66 truck stopped not far from the APC. A woman was at the wheel. During the shelling she remained in the truck. The shelling lasted about fifteen minutes. Approximately halfway through one of the shells exploded between the APC and the GAZ-66 truck. After the shelling stopped it was discovered that the woman driver of the GAZ-66 truck had received a shell wound to the head and died on the spot. Two FSB officers were also wounded; I don’t know their names or the nature of their injuries ...” 38. On 14 February and 15 February 2007 respectively witnesses A. An., former chief assistant to the Vedenskiy District prosecutor, and A. A., a former officer of the Vedenskiy District ROVD, were questioned. 39. On 20 February 2007 witness O. L., a former officer of the Vedenskiy District ROVD, was questioned. He stated as follows: “Since 2002 I had served at the Vedenskiy District ROVD on a contract basis. ... On 7 June 2003 information was received that during the night a group of rebel fighters (sixty to eighty individuals) had entered the village of Kharachoy and killed two women, burned down several houses and all the motor vehicles ... At about 13.30 the operational investigative group comprising about fifty officers of the police, prosecutor’s office and FSB [in four vehicles] headed to Kharachoy. At about 14.00 the operational investigative group arrived in Kharachoy. Having split up into several groups, [we] inspected the scene of the incident and gathered the required material. At about 18.00 we decided to head in the direction of Vedeno. The head of the Vedenskiy District ROVD decided to proceed in groups, with two to three minute intervals, since it was suspected that the rebel fighters might be nearby and could attack the convoy ... Having driven about 800 metres from Kharachoy, an unarmoured UAZ truck carrying the head of the ROVD and eleven other individuals was blown up behind us. We stopped, as I understood that one of our vehicles had been blown up. Everybody left the truck and dispersed onto the road ... At that moment we were subjected to shelling from automatic firearms coming from the forested area on the other side of the abyss. The abyss was about 100 metres wide. I think that at least two people were firing at us. FSB officers called for reinforcements and artillery support. Several of our officers started going down the abyss [to provide help to those who were in the UAZ vehicle]. Me and other officers were covering them, firing at the forested area with automatic firearms. The firefight lasted for about twenty minutes and ended after FSB officers launched two grenades in the direction of the forested area with an RPG-7 handheld grenade launcher. The officers of the prosecutor’s office inspected the scene of the attack; the police officers were helping to take the wounded onto the road. We put the wounded into a GAZEL van, and took them to Vedeno. From the direction of Dyshne-Vedeno a GAZ-66 truck was driving towards us ... At that moment a mortar attack began. About three shells hit the forested area and two landed on the road where we were. We immediately hid from the shells under a URAL truck. The interval between strikes was about a minute. The GAZ-66 truck was already approximately 50 metres from us, when a shell exploded next to it. The truck stopped. At that moment the FSB officers got in touch with the military and asked them to cease fire. We got out from under the [URAL] truck and saw that the woman driver of GAZ-66 truck was dead ... Two of our officers were also wounded; I don’t remember who exactly. The firing was from mortars, as a characteristic roar was clearly heard before each explosion. I cannot say where the firing was conducted from, since we were in a gorge, and the echo could be heard from everywhere ...” 40. On 21 March 2007 witness D. G., a former officer of the Vedenskiy District ROVD, was questioned. He stated as follows: “From 19 June 2002 to 19 June 2003 I served under contract at the Vedenskiy District ROVD ... On 7 June 2003 [as part of the operational investigative group] I went to the village of Kharachoy, where during the night of 7 June 2003 about eighty unidentified [members of an illegal armed group] had killed several women and burned down several houses and cars. On the return trip from the scene of the incident, [on the road running through forested mountain slopes] between the villages of Kharachoy and Dyshne-Vedeno, a landmine exploded, as a result of which a UAZ truck carrying officers of the Vedenskiy District ROVD was thrown down the abyss. Thereupon, [the convoy] was subjected to shelling. The shelling was carried out with automatic firearms coming from the forested mountain area by members of the illegal armed group. Later, there was an artillery attack. [This was clear judging by] the characteristic sound and the presence of characteristic “funnels” on the ground. It is difficult to say which direction the artillery attack was conducted from as the events date back to more than three years ago ...” 41. On 25 April 2007 the military prosecutor of military unit no. 20102 informed the acting prosecutor of the Vedenskiy District that pursuant to their request of 30 January 2007, an enquiry had been sent to the commander of the UGA and upon receipt of the reply the requested information would be sent separately. 42. On 16 May 2007 witness V. K., a former officer of Vedenskiy District ROVD, was questioned. With regard to the circumstances of the mortar fire, he claimed to have been unable to say whether the firing was from mortars or artillery equipment, or to say who had conducted it. However, he stated that he had seen shell bursts and estimated that there had been about twenty of them. It was difficult in the circumstances to determine which direction the firing was conducted from. 43. On 20 September 2007 the applicant’s lawyer challenged the decision of 16 April 2007 suspending the investigation of the case before the Shalinskiy Inter-District Investigation Department (Шалинский межрайонный следственный отдел следственного управления Следственного комитета при прокуратуре Российской Федерации по Чеченской Республике). 44. On 20 December 2007 its head found that there were no grounds for quashing the decision. 45. On 21 March 2008 the applicant’s lawyer challenged the above decision before the Vedenskiy District Court (“the District Court”). 46. On 14 April 2008 the District Court held that the decision of 20 December 2007 had been unlawful, unjustified and premature, and instructed the District Prosecutor’s Office to resume the investigation. In particular, the court pointed out the need to identify the person who had given the order to use heavy weapons without precisely calculating the target area or ensuring that the relevant area had been cordoned off beforehand. Furthermore, it considered it necessary to obtain relevant information from the central archives of the Ministry of Defence, the Ministry of the Interior and the FSB with respect to the mortar fire executed on 7 June 2003. 47. On 10 July and 28 July 2008 the applicant’s lawyer enquired with the head of the Shalinskiy Inter-District Investigation Department whether the judgment of 14 April 2008 had been complied with. On 20 July and 9 August 2008 respectively he was informed that the investigation of the criminal case had never been resumed. 48. The applicant challenged the idleness of the Shalinskiy Inter-District Investigation Department before the District Court, which on 19 August 2008 found its inactivity unlawful. 49. On 7 September 2008 the investigation of the case was transferred from the District Prosecutor’s Office to the Shalinskiy Inter-District Investigation Department. 50. On 27 February 2009 the investigation was resumed. The following instructions were given to the investigator of the Shalinskiy Inter-District Investigation Department: “- to join to the material of criminal case no. 24041 as evidence copies of all necessary documents from the criminal case opened into the causing of bodily harm to officers of the Vedenskiy District ROVD and FSB as a result of the explosion of a UAZ-452 vehicle by an unidentified explosive device on 7 June 2003; - to question as witnesses all the officers of the Vedenskiy District ROVD and FSB driving in the convoy ... at the moment of the mortar attack, including regarding the issue of who in particular had been contacted [to give the order] to use mortar fire; - to establish the owner of the GAZ-66 truck ...; - to obtain from the central archives of the Ministry of Defence copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003 and join them to the case material; - obtain from the headquarters of the UGA information on whether the mortar batteries used on 7 June 2003 belonged to military units and military divisions deployed in the Vedenskiy District of the Chechen Republic, with an indication of the time of firing, the target area and the number of shots; - to carry out other necessary investigative measures; and - to take a lawful and justified decision on the criminal case based on the results of the investigative measures conducted.” 51. On 6 March 2009 the investigator of the Shalinskiy Inter-District Investigation Department requested the head of central archives at the Ministry of Defence to provide copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003. On the same day the investigator requested the temporary district police (ОГ ВОГО и П МВД России по Веденскому району Чеченской Республики) to obtain information from the UGA headquarters about the mortar batteries used on 7 June 2003 by the military units and divisions deployed in the Vedenskiy District, with an indication of the time of firing, the target area and the number of shots. 52. On 13 March 2009 the investigator questioned witness R. M., an officer of the Vedenskiy District ROVD, whose statements were similar to the statement by Kh. Kh. (see paragraph 28 above). 53. On 19 March and 27 March 2009 respectively the investigator questioned the applicant’s sons, A. Kasumov (Kosumov) and A.-K. Kasumov (Kosumov), who stated that their sister had been transporting freight with their family’s GAZ-66 truck, and on 7 June 2003 had been on her way back from the village of Argun where she had been taking some construction stone. 54. On 4 April 2009 the temporary district police replied to the investigator’s request of 6 March 2009, stating that it did not have the information requested and advising the investigator to apply to the Vedenskiy District Military Commandant’s Office. 55. On the same day the investigator of the Shalinskiy Inter-District Investigation Department granted victim status to the applicant’s daughter’s sister-in-law, the owner of the GAZ-66 truck. 56. Between 5 April 2009 and 18 June 2010 the proceedings were suspended and reopened five times. 57. In the meantime, on 22 April 2009 the head of central archives at the Ministry of Defence replied that the military action logbook of the Vedenskiy District Military Commandant’s Office were classified, so in order for the documents to be sent to the investigator the latter had to provide the head of central archives with a classified postal address. 58. On 18 June and 30 June 2009 the investigator of the Shalinskiy Inter-District Investigation Department made further requests to the head of central archives at the Ministry of Defence for copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003, indicating the address where the requested documents could be sent. 59. Meanwhile, on 22 June 2009 the investigator questioned witness S. M., chief detective of the criminal investigation department of the Vedenskiy District Department of the Interior (“OVD”), who stated as follows: “We [undertook steps] to identify those involved in the blowing up of the [UAZ vehicle] and the mortar fire which had caused [the applicant’s daughter’s] death ... Based on the results of the measures taken, [we] identified the individuals who had blown up the UAZ vehicle ..., but the involvement of [those individuals] in the mortar fire was not proved. In this connection we repeatedly submitted requests to the Vedenskiy District military commandant in order to establish the involvement of mortar batteries of the Russian Ministry of Defence deployed in the Vedenskiy District of the Chechen Republic [in the events of 7 June 2003]; however, we have never received any reply.” 60. On 30 June, 6 July and 14 July 2009 the investigator questioned witnesses A. S., A. Tl. and A. G., detectives of the criminal investigation department of the Vedenskiy District OVD, who gave statements similar to that given by witness S. M. 61. On the resumption of the proceedings, on 18 June 2010 the acting head of the Shalinskiy Inter-District Investigation Department instructed the investigator to, inter alia, request from the Vedenskiy District Military Commandant’s Office and join to the case file pertinent information on the divisions of the Russian Ministry of Defence deployed in the vicinity of the scene of the events of 7 June 2003 which were armed with mortars, as well as information on the flying range of 82mm and 120mm mortar shells. 62. On the same date, in compliance with the above instructions, the investigator sent relevant requests to the head of the Vedenskiy District OVD, the Vedenskiy District military commandant, the head of the Vedenskiy District UFSB and the commander of the UGA. 63. On 21 June 2010 the investigation was suspended. It was resumed on 7 July 2010. It appears that the investigation was suspended and reopened again several times thereafter. 64. On 4 July 2011 the head of forensics at the Investigative Committee of the Russian Federation Prosecutor’s Office for the Chechen Republic stated that the case material in criminal case no. 24041 had revealed significant shortcomings in the way the preliminary investigative measures had been carried out. Instructions for further investigation were given to the investigator. It was requested, in particular, that all the FSB officers who had been involved in the events of 7 June 2003 be questioned, since it appeared from a number of witness statements that it had been FSB officers who had asked unidentified individuals for mortar fire support, and it had subsequently been at their request that the mortar shelling had been stopped. 65. On 17 July 2011 the investigation was suspended yet again. It was later resumed on 24 August 2011. | 1 |
test | 001-166754 | ENG | NLD | ADMISSIBILITY | 2,016 | GEREGHIHER GEREMEDHIN v. THE NETHERLANDS | 4 | Inadmissible | Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 1. The applicant, Mr Firay Gereghiher Geremedhin, was born in 1971 in Tesenay, Eritrea. His nationality is unknown and he is living in Rotterdam. The applicant, who has been granted legal aid, was represented before the Court by Mr C.F. Wassenaar, a lawyer practising in Rotterdam. 2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In the late nineties, whilst the applicant was serving in the Eritrean military, his spouse Y fell ill. After her death in July 2002, their four children, Filmon, Mary, Robiel and Henok, were taken into the care of their paternal grandparents in Eritrea as the applicant was refused a discharge from the army for the purpose of taking care of his children. 5. Later in 2002, the applicant married Mislal, his current spouse, and in 2003 their son Hannibal was born. Having grown increasingly frustrated with the policies of the Eritrean Government and his unsuccessful requests for a discharge from the military, the applicant and his wife fled in June 2004 to Saudi Arabia where they applied for asylum. In October 2004, they were recognised by the United Nations High Commissioner for Refugees (“UNHCR”) as refugees under the 1951 Convention on the Status of Refugees. The applicant’s four children from his first marriage and Hannibal remained in Eritrea with the applicant’s parents. 6. During the stay of the applicant and Mislal in Saudi Arabia, their daughter Betlehem was born in January 2005. She is suffering from congenital hydrocephalus and a congenital heart condition. 7. At the request of the UNHCR, the applicant, his spouse and their child Betlehem were accepted for resettlement as quota refugees in the Netherlands. According to information provided by the applicant to the UNHCR and recorded in the UNHCR Resettlement Registration Form signed by the applicant on 11 January 2007, Filmon had been born in 1990, Mary in 1993, Rob(i)el in 1994, and Henok in 1995. 8. On 6 November 2007, the applicant, his spouse and Betlehem were granted Netherlands asylum-based residence permits. According to information provided by the applicant to the Amersfoort municipal authorities after their arrival in the Netherlands, Filmon had been born in 1991, Mary in 1995, Robiel in 1997, and Henok in 1999. 9. On 28 January 2008, the applicant’s spouse filed a request for advice on the issuance of a provisional residence visa (machtiging tot voorlopig verblijf) for Hannibal for the purpose of family reunion in the Netherlands. 10. Also on 28 January 2008, the applicant filed a request for advice on the issuance of a provisional residence visa for his four children born out of his first marriage with Y for the purpose of family reunion in the Netherlands. 11. On an unspecified date in 2009, the five children left Eritrea for Sudan as their grandparents were getting too old to care for them. They ended up in the Shagarab refugee camp in eastern Sudan, where they were registered as refugees after a refugee status determination carried out jointly by the UNHCR and the Government of Sudan. 12. On 9 March 2009, the Visa Service (Visadienst) of the Netherlands Ministry of Foreign Affairs issued a positive recommendation in respect of the request concerning Hannibal, who until their flight in June 2004 had been part of the nuclear family unit (gezin) of the applicant and Mislal, and provided inter alia that it would be demonstrated by official documents – when submitting the request for a provisional residence permit – that Mislal had legal custody (rechtmatig gezag) over Hannibal. As he lacked official documents demonstrating his family tie with the applicant and his spouse, Hannibal was considered to find himself in a situation in which – through no fault of his own – he was hampered by a lack of evidence (bewijsnood). He was therefore offered the possibility to demonstrate the relationship by means of a free DNA test for which he had to travel to the Netherlands mission in Khartoum. Following a delay caused by logistical problems, he was eventually taken to the Netherlands mission in Khartoum – accompanied by a UNHCR staff member – to provide a DNA sample. 13. On 15 December 2009, the Netherlands mission reported that the results of the DNA test showed a strong probability verging on certainty that Hannibal was the applicant’s son. Consequently, he could be admitted to the Netherlands and a provisional residence visa was issued to him. On 31 January 2010, the Netherlands mission in Khartoum provided Hannibal with travel documents allowing him to travel to the Netherlands and join his parents. He entered the Netherlands on 7 April 2010 and was granted a residence permit on 14 April 2010. 14. In a separate decision also taken on 9 March 2009, the Visa Service of the Netherlands Ministry of Foreign Affairs issued a negative recommendation in respect of the request for advice concerning the applicant’s four children born out of his first marriage. Unlike Hannibal, there were no grounds to authorise family reunion in the Netherlands under the rules applicable for reunification of refugee families since the close family ties (gezinsband) between the applicant and the four children were considered to have ceased to exist as the children had no longer formed a part of the applicant’s nuclear family unit when in June 2004 the applicant and his wife had left Eritrea but, since the death of their mother in July 2002, had belonged to the nuclear family unit of the applicant’s parents as the applicant was unable to care for them. Accordingly, there were doubts as to the relationship of dependency between the applicant and these four children. For this reason, the applicant had been requested to substantiate this relationship of dependency and to submit the birth certificates of these children, which he had not done. Further taking into account the ages of the children, the fact that they were living together in the care of their grandparents, that they were rooted in Eritrean society and of an age that they should be regarded as able to fend for themselves, it was also found that leaving the four children in Eritrea did not amount to such a harrowing situation that it should be qualified as undue hardship (onevenredige hardheid). It was further found that there were no special facts or circumstances giving rise to a positive obligation under Article 8 of the Convention to admit the four children to the Netherlands. At the foot of the decision was a note that, according to settled case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), no appeal lay against a recommendation in respect of a request for advice given by the Visa Service on the issuance of a provisional residence visa. 15. By 17 August 2009, when the present application was introduced, neither the applicant nor the four children from his first marriage had filed a formal request for the issue of a provisional residence visa for the purpose of family reunion in the Netherlands either under the rules for family reunion of refugee families or under the rules applicable to regular family reunion. 16. According to a medical statement, drawn up on 24 September 2009 by a doctor at the Utrecht Wilhelmina Children’s Hospital, Betlehem had undergone operations in this hospital from 30 November 2008 to 1 May 2009 and her present medical condition did not allow her to go to Sudan. 17. On 23 April 2010 the applicant informed the Court inter alia that he had recently rented a house in Khartoum for his children. 18. On 28 November 2012 the applicant informed the Court that his oldest son Filmon had been arrested by the Eritrean authorities on the territory of Sudan and had been taken into detention for failure to comply with his military obligations in Eritrea and possibly also for having illegally left Eritrea. The other three children were still in Sudan. 19. On 7 January 2013 the applicant filed a fresh request for advice on the issuance of a provisional residence visa, submitting inter alia that, pursuant to Article 8 of the Convention, the Netherlands authorities were under a positive obligation to provide the four children concerned with a provisional residence permit. By letter of 20 March 2013, the applicant was informed by the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) of the Ministry for Security and Justice (Ministerie van Veiligheid en Justitie) that his request was not suited for consideration in proceedings on a request for advice because he was asking for several exemptions and investigations which could not be considered in proceedings on a request for advice. The applicant was informed that his four children should file a formal request for the issuance of a provisional residence visa in the country of origin or habitual residence. As to his requests for a DNA test and exemption of the minimum income requirement under the applicable immigration rules, he was informed that these belonged to the possibilities but would only be considered in the context of a formal request. 20. On 9 October 2013 the applicant informed the Court that, due to great difficulties in Sudan, the four children born out of his first marriage had had to leave that country. The youngest two, Robiel and Henok, had returned to Eritrea where they were living with their paternal grandmother. His oldest son was still in detention in Eritrea for failure to comply with his military obligations, and the applicant’s daughter Mary had been kidnapped and was being held by rebel forces in the south of Libya. These rebel forces had asked the applicant for money for her release. 21. On 10 December 2014 the applicant informed the Court that Mary had managed to travel to Europe. She had joined the applicant in the Netherlands where she had been granted asylum. The applicant further stated that he was unaware of the whereabouts and fate of his oldest son Filmon and that he intended to file an application for a provisional residence visa in due time for his two youngest sons Robiel and Henok who were still living with their grandmother in Eritrea and who would soon come of age and therefore eligible for military service in Eritrea. 22. On 20 October 2015 the applicant informed the Court that the application for a provisional residence visa he had filed on 20 March 2015 as a sponsor (mvv-referent aanvraag) on behalf of Robiel and Henok had been rejected on 17 July 2015 by the Deputy Minister for Security and Justice because there was a discrepancy between the information provided by the applicant and the UNHCR about the exact year of birth of Robiel and Henok, and the applicant had not demonstrated that he had legal custody of them as minor children. The applicant filed an objection (bezwaar) against this decision and, on 10 September 2015, submitted his written ground of appeal to the Deputy Minister and a hearing was scheduled for 14 January 2016. No further information about these proceedings has been submitted. 23. On 12 January 2016 the applicant informed the Court that his son Henok had managed to reach the Netherlands where he had applied for asylum and that he was allowed to await the outcome of this application in the Netherlands. During his journey, he had been separated from his brother Robiel, who was still in Sudan or Libya. The applicant was still in contact with Robiel. Their eldest brother Filmon was doing his military service in Eritrea and therefore could not apply for a provisional residence visa, as Eritrea does not allow its nationals to leave the country and as there is no Netherlands embassy in Eritrea. 24. In a ruling handed down on 12 January 2004 (case no. 200306128/1; ECLI:NL:RVS:2004:31), the Administrative Jurisdiction Division found that the Visa Service’s response on a request for advice for the issuance of a provisional residence visa is merely a recommendation (advies) and not a formal decision (beslissing) producing legal effects (rechtsgevolgen) within the meaning of the General Administrative Law Act (Algemene Wet Bestuursrecht). Consequently, unlike a formal decision on a formal request for a provisional residence visa, such a response from the Visa Service cannot be challenged in administrative appeal proceedings. 25. A decision on a formal application for a provisional residence visa can be challenged in administrative appeal proceedings by filing an objection (bezwaar) with the executive administrative authority that took the decision, a subsequent request for judicial review before the Regional Court (rechtbank) of The Hague and, finally, a further appeal to the Administrative Jurisdiction Division. In these administrative appeal proceedings, an appellant can challenge the compatibility of the decision concerned with, for instance, Article 8 of the Convention. 26. A positive recommendation on a request for advice for the issuance of a provisional residence visa does not automatically entail the issuance of such a visa. In order to obtain it, a petitioner must submit an actual application request for a provisional residence visa at the Netherlands mission in his or her country of origin or country of habitual residence. Any subsequent appeal proceedings can be brought by the petitioner or by a sponsor (referent) on the petitioner’s behalf. 27. The rules governing the possibility to obtain an exemption from the obligation to pay statutory administrative charges (leges) in immigration proceedings have been set out in G.R. v. the Netherlands (G.R. v. the Netherlands, no. 22251/07, § 19, 10 January 2012). 28. Under the Netherlands immigration rules, the reunification of refugee families is in certain aspects less demanding for applicants than the procedure for regular family reunion in that, in the procedure for the reunification of refugee families, the accepted refugee does not have to comply with any income requirement (on this point, see Haydarie and Others v. the Netherlands (dec.), no. 8876/04, 20 October 2005) before his or her nuclear family members may be eligible for family reunion and no administrative charges must be paid for an application for reunification of a refugee family. The requirements for documentary evidence from the country of origin are also less strict than in the regular procedure. 29. At the relevant time, a residence permit for the purpose of the reunification of a refugee family could be issued to the alien who actually belonged – whether as a spouse or minor child – to the de facto nuclear family unit (feitelijke gezinsband) at the time of flight of the accepted refugee, who held the same nationality as the accepted refugee, and who had entered the Netherlands at the same time as the accepted refugee or in respect of whom an application for a provisional residence visa had been filed within three months of the date on which the status of refugee had been granted to the person with whom family reunion was sought. The same applied in respect of a request for advice for the issuance of a provisional residence visa for the purpose of reunification of refugee families. Since 1 June 2013 it is no longer possible to request such an advice as, from that date, it is possible for persons holding the status of refugee and living in the Netherlands to apply themselves, as a sponsor, for a provisional residence visa for relatives for the purpose of refugee family reunification. 30. Until 8 June 2013, a person eligible for a residence permit for the purpose of joining a spouse/partner in the Netherlands where the latter had been granted the status of refugee under the rules applicable to the reunification of a refugee family obtained an asylum-derived residence permit (afgeleide verblijfsvergunning asiel), i.e. a residence permit dependent on the refugee status of the person with whom reunion had been allowed. Given the strict distinction between an asylum-related residence permit and a “regular” (i.e. non-asylum related) residence permit, arguments based on Article 8 of the Convention could not be entertained in proceedings on an application for an asylum-related residence permit, including proceedings on a request for a residence permit for reunification of a refugee family. 31. As from 8 June 2013, when the order amending the Aliens Act 2000 Implementation Guidelines 2013/13 (Wijzigingsbesluit Vreemdelingen-circulaire 2000, “WBV 2013/13”) entered into force, Article 8 principles are taken into account in assessing – in proceedings on a request for a residence permit for the reunification of a refugee family – whether a person belongs to the family of an accepted refugee. | 0 |
test | 001-156460 | ENG | HRV | ADMISSIBILITY | 2,015 | LONČAR v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Paulo Pinto De Albuquerque;Ksenija Turković | 1. The applicants, Mr Dušan Lončar, Ms Miholjka Lončar and Mr Miloš Lončar, are Croatian nationals, who were born in 1951 and 1972 respectively. They all live in Vojnić and were represented before the Court by Ms S. Čanković, a lawyer practising in Zagreb. 2. The first applicant died on 1 June 2013. 3. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. During 1991 and 1992 Serbian paramilitary forces gained control over about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over “Krajina”. The operation was codenamed “Storm” and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of “Krajina” had fled Croatia. They went firstly to Bosnia and Herzegovina, and later on many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000. 6. In January 2005 the authorities learned that a close relative of the applicants, N.L., had been killed during the operation “Storm” or immediately afterwards, in August 1995, on the territory of “Krajina”. The police opened an inquiry into the circumstances of his death. 7. In January 2006 the police interviewed the first and second applicants, who had no direct knowledge about the circumstances in which N.L. had died. 8. M.L., also interviewed in January 2006, said that in August 1995 she had been in a convoy comprising people, tractors and “military armoured vehicles”. N.L. had also been in that convoy. He had been dressed in a Serbian army uniform and had been wearing an army mask. The convoy had been attacked but she had not seen how N.L. had died. R.T., interviewed at the same time, confirmed M.L.’s statement. 9. On 10 July 2006 the applicants lodged a criminal complaint with the State Attorney’s Office against unknown perpetrators in connection with the killing of N.L. 10. On 11 April 2008 the body of N.L. was exhumed. It was dressed in a military uniform with a military identity card. 11. On 21 May 2008 the Sisak County State Attorney’s Office dismissed the applicants’ criminal complaint on the grounds that N.L. had been killed in combat between a unit of the paramilitary Serbian forces and the Fifth Corpus of the Army of Bosnia and Herzegovina. This decision was served on the applicants’ representative on 28 May 2008. | 0 |
test | 001-171529 | ENG | LTU | CHAMBER | 2,017 | CASE OF ŠIMAITIENĖ v. LITHUANIA | 4 | No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1948 and lives in Kaunas. 6. In 1991 the applicant asked the authorities to return to her some buildings and a plot of land owned by her father before nationalisation in 1940. In November 1995 the applicant wrote to the authorities to ask why the buildings and the land had been sold to other persons in 1992. The authorities replied in December 1995 that the applicant had given an incorrect address for the buildings when submitting her request for her property rights to be restored and the buildings in question had already been privatised. 7. On 22 October 1996, upon their own initiative, the authorities suggested to the applicant that she submit a request to be paid monetary compensation for the buildings, if she did not have any objections to such a form of restitution. On 4 November 1996 the authorities indicated that the documents submitted by the applicant did not prove that her father had owned the buildings in question and asked her to provide additional documents or – if she did not have those documents in her possession – to ask the domestic courts to establish as a legal fact that her father had owned those buildings. 8. On 27 April 1999 the applicant lodged a claim with the Kaunas District Court, asking it to establish as a legal fact that before the 1940 nationalisation her father had owned the buildings and a plot of land. On 18 August 1999 the Kaunas District Court stated that there was a dispute about the applicable law and left the applicant’s claim unexamined. The court also suggested to the applicant that she submit her claim in accordance with the rules governing contentious proceedings (as opposed to the rules applicable to the procedure for the establishment of a legal fact). 9. On 28 May 2003 the Kaunas District Court established as a legal fact that the applicant’s father had owned the buildings before the 1940 nationalisation. 10. On 4 July 2003 the applicant indicated that she wanted to receive compensation in the form of securities. The authorities asked the Centre of Registers (a State enterprise) to assess the value of the buildings, which was set on 14 July 2003 at 36,000 Lithuanian litai (LTL – approximately 10,426 euros (EUR)). On 18 September 2003 the authorities recommended that applicant’s and her sister’s property rights to their father’s property be restored by paying them compensation in securities. 11. On 9 October 2003 the authorities adopted a decision to restore the applicant’s and her sister’s property rights by paying them LTL 36,000 (approximately EUR 10,426) in total in securities. 12. On 10 June 2004, the applicant lodged a claim with the Kaunas District Court, requesting the annulment of the valuation of the buildings made by the Centre of Registers on 14 July 2003 (see paragraph 10 above) and the appointment of independent experts to assess the market value of the buildings because she considered that the value set for the buildings was too low. The applicant’s claim contained deficiencies, which she failed to eliminate within the time-limit set by the Kaunas District Court; accordingly, on 13 July 2004, the court decided to rule that the applicant’s claim had not been lodged. 13. The applicant lodged a separate complaint, where she claimed that the authorities assessed the value of the buildings incorrectly, and complaining that the assessment of the value of the buildings had been made before the decision to restore her property rights had been taken. On 23 August 2004 the Kaunas Regional Court held that the Kaunas District Court had made procedural mistakes and returned the case for fresh examination to the Kaunas District Court. 14. The applicant lodged a modified claim with the Kaunas District Court, complaining that the assessment of the value of the buildings had been made three or four months before the decision to restore her property rights had been taken. On 2 February 2005 the Kaunas District Court held that although there were no provisions in the domestic law indicating how soon after the assessment of value the decision to restore property rights had to be taken, in the present case the time between the assessment and the decision had not been excessively long. The court therefore dismissed the applicant’s complaint. 15. The applicant appealed raising the same complaints as she did before the Kaunas District Court (see paragraph 14 above), and on 13 June 2005 the Kaunas Regional Court held that the assessment of value of the buildings had been based on several methods of calculation and in accordance with the provisions of the domestic law. It therefore dismissed the applicant’s appeal. 16. The applicant lodged an appeal on points of law, and on 14 December 2005 the Supreme Court decided that the case had to be examined before the administrative rather than civil courts and referred the case for examination to the Kaunas Regional Administrative Court. 17. On 23 March 2006, during the hearing before the Kaunas Regional Administrative Court, the applicant asked for the examination of the case to be postponed that she might have time to eliminate deficiencies in her claim. She also claimed that she was not aware of the fact that she had to submit a request to renew the time-limit for lodging a complaint separately, and asked the court to provide her with an opportunity to do that. Her requests were granted and the examination of the case was postponed until 9 May 2006. On 19 April 2006 the applicant lodged a modified claim in which, inter alia, she asked the Kaunas Regional Administrative Court to (i) annul the assessment of the value of the buildings made by the Centre of Registers, (ii) to annul that part of the order of the authorities for her property rights to be restored in which the value of the buildings was indicated and (iii) to renew the time-limit for lodging a complaint. On 9 May 2006, during the hearing at the Kaunas Regional Administrative Court, the applicant asked for the appointment of an expert to determine the market value of the buildings. On 6 June 2006 the court suspended the proceedings, appointed an expert and asked the expert (i) what the market value of the buildings had been on 14 July 2003 and (ii) what the market value of the buildings had been today, i. e. when the expert had been appointed. In April 2007 the expert stated that on 14 July 2003 the market value of the buildings had been LTL 56,850 (approximately EUR 16,465) and that the market value of the buildings at the time that the examination of the case had started had been LTL 164,900 (approximately EUR 47,758). Subsequently the court proceedings were resumed, and on 21 September 2007 the Kaunas Regional Administrative Court held that the new assessment of value of the buildings was more accurate and decided to annul the assessment of value of 14 July 2003 by the Centre of Registers and that part of the decision of 9 October 2003 to restore the applicant’s property rights in which the value of the buildings was set at LTL 36,000 (approximately EUR 10,426) (see paragraphs 10 and 11 above). The applicant did not appeal and the decision became final on 5 October 2007. 18. On an unspecified date, the applicant lodged a claim with the Kaunas Regional Administrative Court, asking, inter alia, for the authorities to be obliged to urgently re-issue the annulled part of the decision of 9 October 2003 (see paragraph 11 above). On 12 December 2007 the Kaunas Regional Administrative Court allowed the applicant’s claim. 19. On 18 May 2009 the Kaunas Regional Administrative Court examined and then rejected a claim by the applicant seeking for the Kaunas Municipality to be obliged to pay her LTL 82,450 (approximately EUR 23,879) for the buildings and to award her LTL 96,370 (approximately EUR 27,911) in damages. The court held that the assessment of value in itself did not give rise to any legal consequences for the applicant. The court concluded that the decision of the authorities of 9 October 2003 was still in force and that the question of the amount of the compensation was a matter for the public authorities and that it was not within the court’s power to give instructions to them. 20. The applicant appealed, but on 26 July 2010 the Supreme Administrative Court dismissed her appeal. The court held that the applicant’s request had been for the value of the buildings to be set at what their value had been at the moment when the expert valuation had been carried out in 2007 (see paragraph 17 above). The court also observed that the amendment of the decision of 9 October 2003 to restore the applicant’s property rights had not yet been adopted and it was not clear how the applicant’s rights were being breached. The court also held that the applicant had repeatedly raised the issue of the assessment of the value of the buildings, which had already been resolved. The court upheld the conclusion of the court of first instance that public authorities’ functions did not fall within the jurisdiction of the domestic courts (see paragraph 19 above). 21. The applicant requested that the proceedings be reopened. On 17 December 2010 the Supreme Administrative Court refused her request. 22. In October 2007 the relevant authorities were informed that an additional assessment of the value of the buildings had to be made and then the Kaunas Municipality Administration asked the Centre of Registers to urgently assess their value. As no response was received, in February 2008 the Kaunas Municipality Administration again asked the Centre of Registers to assess the value of the buildings. The assessment was made on 17 March 2008 and the value of the buildings was set at LTL 57,000 (approximately EUR 16,508) in total, of which the applicant’s part was LTL 28,500 (approximately EUR 8,254). This valuation was officially approved by the authorities on 5 June 2009, when they amended the annulled part of the decision of 9 October 2003 to restore the applicant’s and her sister’s property rights. 23. On 16 August 2010 the applicant submitted a request to be compensated in securities of a State-owned enterprise. On 27 January 2011 the applicant was sent a document of acceptance in respect of 11,875 units of securities, the nominal value of each unit being LTL 1 (approximately EUR 0.29). The State Property Fund asked the applicant to sign the document of acceptance and indicated that the nominal value of one security was LTL 1 (approximately EUR 0.29) but that the real value was LTL 2.4 (approximately EUR 0.7). It meant that the real total value of the shares was LTL 28,500 (approximately EUR 8,254), which was the applicant’s part of the compensation (see paragraph 22 above). The transfer of the securities was finalised on 1 February 2011. 24. On 12 December 2012 the applicant asked the authorities to set the value of the buildings at the value that they had as of January 2011 and to pay her additional compensation. In February 2013 the authorities replied that there were no grounds for re-examining and deciding on questions regarding the restoration of property rights to the applicant because the procedure had already been finalised. 25. The applicant lodged a claim with the domestic courts, asking, inter alia, that the decision of the authorities of 5 June 2009 by which the annulled part of the decision of 9 October 2003 had been amended (see paragraph 22 above) be quashed. She also requested the annulment of the assessment of value of the buildings at LTL 57,000 (approximately EUR 16,508) made by the Centre of Registers on 17 March 2008. The applicant’s claim had several deficiencies and she was asked several times to eliminate them. However, the applicant failed to do so in an acceptable manner and on 25 October 2010 the Kaunas Regional Administrative Court declined to examine her claim. The court stated that the applicant had asked it to oblige the authorities to provide one of the original copies of the decision of 5 June 2009; however, it observed that the applicant already had an original copy. It was suggested by the court that the applicant contest the order of 5 June 2009, because it was that document which had legal consequences for her. This, according to the information in the Court’s possession, she never did. | 0 |
test | 001-180837 | ENG | RUS | COMMITTEE | 2,018 | CASE OF TYUTINA AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Dmitry Dedov;Luis López Guerra | 4. The list of applicants is set out in the appended tables. 5. On the dates indicated in the appended tables the applicants obtained monetary court awards against the Municipal Unitary Enterprise Passenger Transport Company of Kotlas (MUP Kotlas Passazhirskoye avtotransportnoye predpriyatiye – муниципальное предприятие муниципального образования Котлас «Пассажирское автотранспортное предприятие»). 6. Some of the judgments in the applicants’ favour have been partly enforced during the insolvency proceedings in respect of the company (see paragraphs 7-10 below), while others remained unenforced to date. 7. The company was incorporated as a municipal unitary enterprise. It was set up by the municipality of Kotlas. The company provided transport services in the town. It had “the right of economic control” (право хозяйственного ведения) over the assets allocated to it. 8. As submitted by the applicants, the prices for the transport services in the town of Kotlas were regulated by the Administration of Arkhangelsk region. 9. On 28 September 2007 insolvency proceedings started in respect of the company. 10. On 18 September 2012 the company was declared insolvent and subsequently liquidated. | 1 |
test | 001-146547 | ENG | CYP | ADMISSIBILITY | 2,014 | GENCER AND OTHERS v. CYPRUS | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. A list of the applicants is set out in the appendix. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants stated that they are nationals of the “Turkish Republic of Northern Cyprus” and in application no. 28914/14 also nationals of the United Kingdom. Their names, dates of birth and places of residence are set out in the Annex. They are represented before the Court by Ms Y. Renda, a lawyer practising in Nicosia. 4. The facts of the cases may be summarised as follows. The applicants are relatives of Turkish-Cypriots who went missing in either December 1963 or May 1964 during incidents of mounting tension and violence in which Turkish Cypriots or Turkish-Cypriot villages were targeted. 5. These persons were listed as missing persons, the information being given to the Cypriot authorities, the Red Cross and the United Nations. 6. The remains of the missing men have been found during exhumations carried out by the United Nations Committee for Missing Persons (“CMP”) in 2010. 7. The Government have submitted that investigations had been commenced in both cases. The police had taken statements from relatives of the victims, taken steps to pursue investigation in the various localities and to trace police officers stationed there at the relevant time, to locate witnesses and to seek information from local inhabitants as to the transportation, murder and burial of the victims. In the first application, where investigation is linked with others already launched concerning victims of the same incident, statements have been obtained from about 65 individuals, while in the second application police are exploring material obtained from persons in the leadership of the “Akritas” organisation and tracing as far as possible persons who might have been involved or have information about such involvement. 8. The applicants submitted that it is not apparent that any progress had been made in the investigations and that they had not been given any copies of reports, witness statements or information gathered from various sources. | 0 |
test | 001-161986 | ENG | GBR | ADMISSIBILITY | 2,016 | I.A.A. AND OTHERS v. THE UNITED KINGDOM | 4 | Inadmissible | Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano | 1. The applicants I.A.A., Z.A.A., B.A.A., A.A.A. and A.M. are Somali nationals who were born in 1994, 1996, 1995, 2001 and 2002 respectively and who currently live in Addis Ababa. They are represented before the Court by Asylum Aid. The President ordered that the applicants’ identity should not to be disclosed to the public (Rule 47 § 4). 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office. 3. The five applicants comprise four biological siblings and their first cousin who is a sibling by adoption. 4. The applicants’ mother was born in Somalia. Between 1990 and 1996 she had seven children with her first husband. The two eldest children went to live with their mother’s paternal aunt and appear to have remained with her in Somalia. Following the breakdown of her relationship with her first husband, the applicant’s mother married her second husband and had a child with him in 1997. She subsequently returned to her first husband and gave birth to two further children in 2001 and 2003. In 2002 she adopted her niece, who is the fifth applicant in the proceedings before the Court. 5. The applicant’s mother left her first husband for a second time in 2003. Around the same time, her second husband was granted refugee status in the United Kingdom. She joined him there the following year, leaving her nine youngest children, including the applicants, in the care of her sister in Somalia. 6. In 2005 the applicants’ mother’s only child with her second husband was granted entry clearance to join the couple in the United Kingdom. In sponsoring the application for entry clearance, she did not mention that she had children by her first husband who were still living in Somalia. 7. In 2006 the applicants’ aunt moved from Somalia to Ethiopia, taking with her the eight children in her care. 8. In 2007 the applicants’ mother divorced her second husband. 9. In 2008 two of the applicants’ siblings applied for entry clearance to join their mother in the United Kingdom. Apparently those children were chosen to join her because one was the youngest and the other was in poor health. The application was initially refused but entry clearance was later granted following a successful appeal to the then Asylum and Immigration Tribunal. In allowing the appeal, the Tribunal accepted first, that the mother had effective sole responsibility for the children abroad; secondly, and in the alternative, that there were serious and compelling family or other reasons which made their continued exclusion from the United Kingdom undesirable; thirdly, that the mother and her children had enjoyed family life together as a unit before she had travelled to the United Kingdom to join her second husband; and fourthly, that the mother could not reasonably relocate to Ethiopia to care for her children as she would have no job and no means of survival there. 10. In or around this time the applicants’ aunt left Ethiopia and returned to Somalia, leaving the eight children in the care of the eldest, who was then sixteen years old. The five applicants and their older sibling, who is not a party to the proceedings before this Court, applied for entry clearance to join their mother in the United Kingdom. 11. On 9 February 2009 the Secretary of State refused the application for entry clearance on the ground that the applicants and their older sibling did not meet the requirements of paragraphs 297 or 352D of the Immigration Rules HC395 (as amended) because they were not dependent on their mother’s support and they were not the biological children of a recognised refugee. The Secretary of State also considered Article 8 of the Convention but concluded that although there was a limited interference with the applicants’ rights under Article 8, the refusal of entry clearance had been proportionate and justified. 12. On 23 February 2010 the applicants’ appeal against this decision was dismissed as the Immigration Judge found that they could not meet the requirements of the Immigration Rules. He further found that as contact between the applicants and their mother had been sporadic since 2004, family life did not exist “at the present time” and Article 8 was not, therefore, engaged. However, on 8 June 2010 permission to appeal was granted as the grounds of appeal raised arguable issues in relation to the manner in which the Immigration Judge had approached the Article 8 issue. 13. The appeal decision was promulgated on 17 September 2010. While the Immigration Judge had little doubt that the previous judge was correct to find that the applicants could not meet the requirements of the Immigration Rules, he found it to be equally clear that he had not adequately addressed the Article 8 issue. In particular, he had concentrated on whether family life existed “at the present time” when the correct test was whether it had existed at the date of the decision, namely 9 February 2009. Consequently, the Immigration Judge concluded that the previous judge had erred in law and set aside his decision. In reconsidering the Article 8 issue, the Immigration Judge accepted that family life had existed between the applicants and their mother at the date of the Secretary of State’s decision and that the refusal of entry clearance had interfered with that family life. Nevertheless, he concluded that the interference had been proportionate because the applicants’ mother had made a conscious decision to leave them in Somalia, knowing that the separation might be permanent, and at the date of the decision she had been living separately from them for more than four years. 14. The applicants sought leave to appeal on the ground, inter alia, that the Immigration Judge had failed to take into account the findings of the Immigration Judge in the first two children’s appeal against the refusal of entry clearance in 2009. 15. On 3 December 2010 the Upper Tribunal refused the applicants’ application for leave to appeal as it found that the Immigration Judge had considered all the relevant factors in the round and reached a conclusion which was rationally open to him. On 26 January 2011 permission to appeal was also refused by the Court of Appeal. However, on 23 June 2011 the Court of Appeal made an order by consent ordering that the applicants’ appeal should be remitted to the Immigration and Asylum Chamber of the Upper Tribunal. 16. The new Tribunal promulgated its decision on 26 January 2012. In assessing whether or not the refusal of entry clearance amounted to a disproportionate interference with the applicants’ rights under Article 8 of the Convention, it accepted the conclusions of the Immigration Judge in the appeal of the applicant’s two siblings against the refusal of entry clearance. The Tribunal also accepted that the best interests of the children had to be treated as a primary consideration, albeit not the primary consideration, in assessing proportionality and that it was in the applicants’ best interests that they should be allowed to join their mother in the United Kingdom. Nevertheless, the general principle remained true that a foreign national who could not satisfy the requirements for entry clearance under the Immigration Rules (and the applicants had not disputed that this was the case) would not normally be able to show that his exclusion from the United Kingdom would constitute a disproportionate interference with his Article 8 rights unless he could show good reason why his case should be treated more favourably that the generality of such cases. Moreover, the Tribunal noted that the applicants’ best interests could not be viewed in isolation and it was therefore relevant that their mother had decided to leave them in Somalia, knowing that the separation was likely to continue for the foreseeable future, and that she had allowed five years to pass before attempting to bring them to the United Kingdom, by which time they had long ceased to live together as a family unit with her. 17. The Tribunal concluded that: “The circumstances in which the appellants were living together in Addis Ababa at the date of the respondent’s decision, and in which they are still living now, are undoubtedly harsh, to put it at its lowest. Indeed, they may fairly be characterised as harsh. But sadly they are conditions in which vast numbers of other individuals are compelled to live throughout the unhappier regions of the world. The United Kingdom does not have either the room or the resources to provide for all of them. There is no reason in logic why the appellants should be viewed differently from the vast numbers of other unfortunate individuals who would jump at the opportunity of a new and better life in the United Kingdom, but who cannot fulfil the requirements for entry laid down by the Secretary of State in the Immigration Rules and are therefore unable to avail themselves of that opportunity. On the facts of the appellants’ case as presented before me, I am not persuaded that they have shown why they should be treated differently from the generality of foreign nationals in the same or similar position. In short, whilst I accept that their exclusion from the United Kingdom would constitute an interference with their Article 8 rights and those of the third parties affected by their exclusion, nevertheless that would not constitute a disproportionate interference when balanced against the larger public interest to which I have referred. Their appeals therefore fall to be dismissed.” 18. In May 2012 the applicants’ older sibling, who had been looking after them, left the family unit in Ethiopia and her current whereabouts are unknown. Since then, the applicants have been cared for by the first applicant. 19. On 16 October 2012 the Court of Appeal refused permission to appeal as it found that the Immigration Judge had not failed to take into account any relevant factors. 20. Paragraph 352D of the Immigration Rules contained the requirements for leave to enter as the child of a parent who had been granted refugee status in the United Kingdom. It provided that: “352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom are that the applicant: (i) is the child of a parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom; and (ii) is under the age of 18, and (iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and (iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; and (v) would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and (vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity." 21. At the relevant time paragraph 297 of the Immigration Rules contained the requirements for leave to enter as the child of a parent present and settled in the United Kingdom. It provided that: “297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he: (i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances: (a) both parents are present and settled in the United Kingdom; or (b) both parents are being admitted on the same occasion for settlement; or (c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or (d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or (e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or (f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and (ii) is under the age of 18; and (iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and (iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and (v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and (vi) holds a valid United Kingdom entry clearance for entry in this capacity; and (vii) does not fall for refusal under the general grounds for refusal.” 22. By virtue of section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002 an unsuccessful applicant for entry clearance may appeal against the refusal on the ground, inter alia, that “the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to the Human Rights Convention) as being incompatible with the appellant’s Convention rights”. 23. The Sponsor in the United Kingdom cannot appeal against that decision. | 0 |
test | 001-145235 | ENG | NLD | ADMISSIBILITY | 2,014 | ANEMA-KWINKELENBERG AND OTHERS v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra | 1. A list of applicants is set out in the appendix. The applicants were represented by Mr G.J.H. van Hoof, a lawyer practising in IJsselstein (hereafter also: the applicants’ representative). 2. Before the events complained of, the applicants variously held shares or subordinated bonds (the latter under diverse designations) issued by SNS REAAL N.V., a public limited company (naamloze vennootschap, “N.V.”) incorporated under Netherlands law, or one or more of its subsidiaries. The events complained of, which concern the expropriation of those shares and subordinated bonds, are set out in Stefania Adorisio and Others against the Netherlands and three other applications (dec), no. 47315/13, 14 January 2014. Appeals against the expropriation decision were dismissed by the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) on 25 February 2013. Proceedings relating to compensation are currently pending before the Supreme Court (Hoge Raad). B. Relevant Court procedure 1. The Rules of Court 3. At the time of the proceedings in issue, the Rules of Court, as pertinent, provided as follows (footnotes omitted): Rule 36 – Representation of applicants “1. Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative. ...” Rule 44A – Duty to cooperate with the Court “The parties have a duty to cooperate fully in the conduct of the proceedings and, in particular, to take such action within their power as the Court considers necessary for the proper administration of justice. This duty shall also apply to a Contracting Party not party to the proceedings where such cooperation is necessary.” Rule 45 – Signatures “1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicants’ representative. 2. Where an application is made by a non-governmental organisation or by a group of individuals, it shall be signed by those persons competent to represent that organisation or group. The Chamber or Committee concerned shall determine any question as to whether the persons who have signed an application are competent to do so. 3. Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.” Rule 47 – Contents of an individual application “1. Any application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the President of the Section concerned decides otherwise. It shall set out (a) the name, date of birth, nationality, sex, occupation and address of the applicant; ... and be accompanied by (h) copies of any relevant documents and in particular the decisions, whether judicial or not, relating to the object of the application. ... 4. Failure to comply with the requirements set out in paragraphs 1 and 2 of this Rule may result in the application not being examined by the Court. 5. The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction. ...” 2. The Practice direction on the institution of proceedings 4. Clarification of the above Rules, among others, was provided by a Practice direction on the institution of proceedings issued by the President of the Court under Rule 32 of the Rules of Court. At the time of the proceedings here in issue, it read as follows, in its relevant parts and in the redaction in force since 24 June 2009 (footnote omitted): “4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form. Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention. 5. Applicants may file an application by sending it by fax. However, they must despatch the signed original by post within eight weeks from the date of the Registry’s letter referred to in paragraph 4 above. ... 7. On receipt of the first communication setting out the subject-matter of the case, the Registry will open a file, whose number must be mentioned in all subsequent correspondence. Applicants will be informed thereof by letter. They may also be asked for further information or documents. ... 9. Failure to provide further information or documents at the Registry’s request (see paragraph 7) may result in the application not being examined by the Court or being declared inadmissible or struck out of the Court’s list of cases.” | 0 |
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