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test | 001-140770 | ENG | MDA | CHAMBER | 2,014 | CASE OF ZIAUNYS v. THE REPUBLIC OF MOLDOVA | 3 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Pecuniary and non-pecuniary damage - award | Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 6. The applicant was born in 1965 and lives in Vilnius. 7. The applicant is a member of the International Banknote Society, the American Numismatic Association and the Collectors’ Club of Vilnius. 8. On 12 December 2000 the applicant signed a contract with the Educational Coin Company (“the company”), registered in the United States of America (“the USA”), according to which he would deliver to the company 8,500 kg of banknotes (in five and ten rouble notes) issued by the self-proclaimed Bank of the “Moldavian Republic of Transdniestria (MRT)” (see further details about the events leading to the creation of the self-proclaimed “MRT” in Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004VII). In exchange, under the contract, he had the right to select items from the company’s wholesale catalogue to a value of 7,000 United States dollars (USD). 9. On 26 January 2001 the applicant bought from the “MRT” bank 13,590,000 “MRT” roubles (in five and ten rouble banknotes) issued in 1994. The banknotes issued in 1994 were no longer in circulation in the “MRT”, having been replaced by new banknotes in 2000. Such banknotes have never been in official circulation in Moldova and had been accepted as payment only in the “MRT” and only prior to 2000. 10. On 1 February 2001 the applicant submitted to Moldovan customs 353 sealed bags of banknotes issued by the “MRT” bank in 1994. He asked for permission to ship the items to the USA, in accordance with the contract with the company. He declared that the paper in the bags had a numismatic value of USD 7,000. 11. The customs authority decided to store the bags in its warehouse until a decision could be taken about what to do with them. Subsequently, the bags were moved to the premises of the State Tax Inspectorate (“the STI”), where they have remained since. 12. By a decision of 23 July 2003 and further to a report of 25 August 2003, the Customs Department decided not to return the banknotes to the applicant and to transfer them instead to the STI for free as the items were banned from general circulation in Moldova. 13. The applicant asked on a number of occasions for the return of the items confiscated from him. On an unknown date in 2005 he initiated court proceedings to have the decisions taken in July and August 2003 set aside and the items returned to him. 14. On 19 April 2005 the Chişinău Court of Appeal dismissed his court action as lodged out of time. On 3 August 2005 the Supreme Court of Justice quashed that decision and ordered a rehearing of the case by the lower court. 15. On 7 November 2005 the Chişinău Court of Appeal allowed the applicant’s claims in part. The court found that the banknotes under examination had never been introduced into general circulation in Moldova and had never been exchanged for the official currency of the country. There was no evidence in the file that the banknotes had been manufactured for circulation in Moldova. The applicant had officially declared the 353 bags of banknotes, which he considered to be waste paper with numismatic value, in order to transport them abroad. Moreover, it had to be presumed that he had obtained the items in a lawful manner, unless proof to the contrary had been adduced. However, nobody had claimed a property right in respect of the relevant items. The court concluded that the Customs Department and the STI had acted unlawfully. 16. On 17 May 2006 the Supreme Court of Justice quashed the lower court’s judgment and delivered a new one, rejecting all his claims. The court found that, in accordance with Articles 1 and 2 of the Money Act (see paragraph 19 below), only the National Bank of Moldova had the right to issue banknotes, and that the “MRT” bank had not been given such a right. As a result, the banknotes issued by the “MRT” bank could not be introduced into legal circulation and could not, under Article 206 of the Civil Code (see paragraph 18 below), be the lawful object of the contract of 26 January 2001. That judgment was final. | 1 |
test | 001-167120 | ENG | LVA | CHAMBER | 2,016 | CASE OF TALMANE v. LATVIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev | 5. The applicant was born in 1966. At the time she submitted her complaint she lived in Madona Region, Latvia. 6. On 17 November 2006 the Madona District Court, acting as a firstinstance court, found the applicant guilty of a traffic offence which had caused moderate bodily injury to a victim. The court ordered the applicant to perform 100 hours of community service and suspended her driving licence for a year. 7. In establishing the applicant’s guilt, the first-instance court relied on incriminating statements by the victim and two witnesses. It also relied on other evidence, including a medical expert opinion on the bodily injuries sustained by the victim. 8. The applicant appealed against the judgment to the Vidzeme Regional Court. She alleged, inter alia, that the first instance court had failed to order an inspection and a technical examination of her vehicle, and had also not carried out a confrontation of witnesses. 9. On 13 February 2007 the Vidzeme Regional Court upheld the judgment of the first-instance court but changed in part the punishment by revoking the suspension of the applicant’s driving licence. 10. On 8 March 2007 the applicant submitted an appeal on points of law to the Senate of the Supreme Court. She alleged that the appellate court had failed to carry out and to order a number of investigating activities. Specifically, according to the applicant, the appellate court has not carried out a confrontation between the witnesses and the victim. It has not ordered an investigative experiment, an inspection and a technical examination of her vehicle. 11. The applicant maintained that the evidence in the case was not sufficient to establish her guilt, and thus the appeal court had acted contrary to numerous sections of the Criminal Procedure Law. 12. In a letter dated 11 April 2007 a judge of the Senate of the Supreme Court informed the applicant that on 11 April 2007 her appeal on points of law was not admitted for examination in the cassation proceedings. It relied on section 573 of the Criminal Procedure Law and stated that “[the appeal on points of law] was not substantiated by any fundamental infringement of the Criminal Law or the Law on Criminal Procedure”. It was also stated that it was not within the competence of the cassation court to re-examine or obtain evidence, or to | 0 |
test | 001-144329 | ENG | ROU | ADMISSIBILITY | 2,014 | M.P. AND OTHERS v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicants are Mrs M.P., her husband Mr M.P., and their son M.D.P. They are all Romanian nationals, born in 1971, 1974 and 2003 respectively; they all live in Buzău and were represented before the Court by Mr P. Pop, a lawyer practising in Bucharest. The Romanian Government were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarized as follows. 3. Mrs M.P., mother of a nine year-old child from a previous marriage, had been informed by doctors that she could no longer conceive naturally; together with her husband, Mr M.P., she decided to have recourse to artificial insemination procedures in order to have a child. The applicants contacted doctor S.P., an obstetrician at the “Prof. Dr Panait Sârbu” Obstetrics and Gynaecology Hospital in Bucharest (hereafter “the hospital”) to that end. They informed the doctor that Mrs M.P.’s first child had been born with a congenital malformation (tibial agenesis, or hemimelia) and asked for further information concerning the risk that the future child could be born with the same condition. They explained to the doctor that if such a risk existed they would not proceed with the insemination. Doctor S.P. assured them that the first child’s situation was exceptional and that there was no risk of another child being born with the same disability. 4. They were then referred to doctor A.V. in order to have the standard procedural tests carried out. They enquired again about the risk of having another baby with the same malformation and about the possibility of running genetic tests in order to rule out this issue. The doctor assured them that the chances of it happening were minimal (1/1,000,000); therefore no other tests were performed. 5. The artificial insemination was scheduled for 19 November 2002 and it resulted in the first applicant’s pregnancy. 6. In the first trimester of the pregnancy the first applicant underwent several tests recommended by doctor S.P., who also referred her to doctor D.A. for further ultrasound scans. She allegedly told the latter about her fears concerning the risk of the baby developing the same malformation as her first child. However, she was reassured each time that everything concerning the development of the unborn child was normal. 7. During one of the ultrasound scans, performed in the twenty-fourth week of pregnancy, doctor E.S., an echographer, informed the applicants that he had noticed a difference between the two legs of the foetus, but reassured them that it was likely that that was an error, as the difference was minor and the foetus did present both a tibia and a femoral bone. This information was conveyed to doctor S.P., who concluded that no special issue arose. 8. The first applicant decided to seek further tests, however. To that aim, she contacted a private clinic, M.R., where on 9 June 2003 she underwent a three-dimensional ultrasound scan, performed by doctor D.A. At the relevant time the applicant was in her thirty-second week of pregnancy. The doctor detected a peculiar position of the toes in relation to the leg (planta în poziţie valg faţă de planul frontal al gambei), reassuring Mrs M.P. nevertheless that the legs of the foetus were normally developed. He further detected foetal distress in the brain (suferinţă fetală la nivel cerebral) and recommended that the applicant contact her obstetrician. After consulting with her obstetrician, on 12 June 2003 the first applicant was hospitalized; Mrs M.P. and the foetus were monitored until 16 June 2003, when she was released from hospital as there were no further indications of foetal distress. 9. On 8 August 2003 the applicant was admitted to hospital for the birth; she was immediately referred to doctor C., who later assisted the applicant during the birth. On 12 August 2003 the applicant gave birth to a baby boy (the third applicant); he presented a malformation of one of his legs that was identical to that of his older brother. 10. Doctor S.P. visited the applicant three days later; referring to the child’s disability, the doctor offered his support in finding an association which could help the applicants financially. 11. Nine months after giving birth to M.-D.P., and despite the doctors’ conclusion that she could not become pregnant naturally, Mrs M.P. discovered that she was expecting a third baby. Together with her husband, she decided to have an abortion, fearing that the third child would be born with the same disability. 12. On 9 May 2005 the applicants brought an action against doctors S.P., D.A., E.S. and A.V., as well as against the hospital, the private clinic M.R., the Ministry of Health and the Romanian State, represented by the Ministry of Finance. On behalf of their younger son, they requested a monthly lifetime allowance of 20,000,000 old Romanian lei (ROL); in their own name, they asked for ROL 5,000,000,000 in compensation for pecuniary and non-pecuniary damage incurred on account of the birth of a disabled child, who needed frequent medical interventions due to his disability. The applicants claimed that the defendants were liable for negligence in performing their medical duties, namely, that the doctors had failed to adequately inform them prior to the artificial insemination of the potential risk that the new baby could be born with the same disability as his older brother; and that they subsequently failed to adequately monitor the development of the foetus and also misinterpreted the results of the ultrasound examinations, telling them that the baby was developing normally and thus misleading them. The applicants reiterated that if they had been aware of the risks involved, they would have not undergone the artificial insemination to begin with, and in any event, they would have decided on an abortion, so as to spare the child of a life of pain and suffering on account of his disability. Referring to “the doctors’ superficiality” in dealing with their case, the applicants highlighted that in spite of the diagnosis according to which Mrs M.P. could no longer become pregnant naturally, she had become pregnant unexpectedly and found herself compelled to have an abortion for fear of having another disabled child. 13. On 7 December 2007 a report containing the conclusions of doctor D.I., an expert in genetics from the National Institute of Forensic Medicine, was adduced as evidence. In reply to the twenty-five questions put by the court, the expert gave her opinion, which its relevant parts held as follows: “The [peculiar] position of the toes in relation to the leg indicate a congenital malformation [question no. 1] ... “The recommended measure [for diagnosing a genetic anomaly of the specified type] is a foetal morphological ultrasound scan, performed in the 20th-24th week of pregnancy. The lower limbs are visible from the 13th-14th week of pregnancy, but the toes only from the 20th week. The period of 20-24 weeks is optimal for visualising the foetal structures and for making the choice of whether to continue or to terminate the pregnancy. [question no. 9] ... Pre-conception diagnosis cannot be performed in the case of tibial agenesis (tibial hemimelia) .... The gene responsible for this condition is not known and the genetic defect potentially responsible for tibial agenesis is beneath the resolution threshold of cytogenetic testing (karyotyping). A prenatal diagnosis can be made by performing an ultrasound scan (foetal morphological ultrasound) in weeks 20-24 of pregnancy. [question no. 25] ... Conclusions In a case where the parents of a child with tibial agenesis have given birth to a second child with the same congenital malformation following a pregnancy resulting from artificial insemination, it would have been advisable for a genetic consultation to be carried out before conception of a second child, together with rigorous ultrasound monitoring of the second pregnancy in order for the specific ultrasound warning signs to be identified in time. It would also have been essential to inform the parents about this anomaly (tibial agenesis) and about the possibilities for treatment, given that surgical orthopaedic treatment is possible.” 14. On 25 January 2008 the Bucharest Court of First Instance rendered its judgment. The court held that due to medical negligence, Mrs M.P. had suffered damage, namely, “the birth of a child with a congenital anomaly”. The court stated that her right to be correctly informed about the state of health of her unborn child had been infringed; implicitly, her right to choose whether or not to give birth to a child suffering from a congenital malformation was equally infringed. 15. The court found doctor A.V. responsible in her capacity as a geneticist for not discharging her duty of care in assessing the applicant’s condition before the artificial insemination, despite having been informed that her first child had been born with a malformation. It concluded that the doctor had failed to proceed to further testing of the applicant in order to clarify her situation and thus inform her about the existing risks associated with a pregnancy, which would have given the parents the opportunity to assess their options. Regarding the responsibility of doctor E.S., the court concluded that he had failed to correctly interpret the results of the ultrasound scan performed during the twenty-fourth week of pregnancy, which had revealed a problem with the foetus’s legs. It further stated that in such circumstances the doctor had been under an obligation to refer the applicant for further testing and to recommend a three-dimensional ultrasound scan. Doctor D.A. was cleared of responsibility on account of the fact that he had been the only doctor to correctly interpret the results of the threedimensional ultrasound scan performed during the thirty-second week of pregnancy, on 9 June 2003 (see paragraph 8 above). As regards doctor S.P., the applicant’s obstetrician, the court found that he was responsible for not recommending the three-dimensional ultrasound scan in time for the malformation to be promptly discovered (weeks 20-24) and also for misinterpreting and ignoring the results of the scan when it was performed in the thirty-second week of pregnancy, in spite of the fact that it had revealed an anomaly in the foetus’s legs. The hospital was held jointly liable with the doctors in respect of the payment of damages. 16. The court referred only to the first applicant in its reasoning; however, it stated in its conclusion that the damages awarded consisted of the payment of a monthly allowance for the third applicant as requested, as well as of compensation for pecuniary damage (in the amount of 2,499.99 new Romanian lei (RON)) and non-pecuniary damage (in the amount of RON 150,000) for both parents. 17. The parties held responsible appealed against the judgment. 18. In its decision of 20 September 2009, the Bucharest County Court reassessed the merits of the case and dismissed the applicants’ action. The court concluded that doctor A.V. had performed her duties in accordance with her professional obligations; the fact that she had not recommended further tests to the applicant did not make her responsible for any damage, in so far as, according to the expert’s conclusions, the only way to detect the malformation was by means of a three-dimensional ultrasound scan performed up to the twenty-fourth week of pregnancy, and that preinsemination tests would not have revealed with certainty the risk of such a condition. As to the responsibility of doctor S.P., the court stated that he could not be held liable in so far as the applicants had been informed that there was a risk of 1/1,000,000 of having a second child with the same malformation. Regarding doctor E.S., the court noted that the problem he had discovered during the ultrasound scan performed on 9 June 2003 concerned the femoral bone, whereas the malformation the third applicant was born with affected the tibia. The court further stated that in any case, a termination of pregnancy could only be carried out up to the fourteenth week, at which stage it was impossible to detect that kind of malformation. 19. The applicants appealed against that decision. 20. On 9 December 2009 the Bucharest Court of Appeal gave its final judgment, partly allowing the appeal. The court examined each of the applicants’ complaints, namely, that the doctors had not informed them of the risk of giving birth to a child with a malformation; that they had not prescribed all the necessary genetic tests and examinations to detect the risk of a genetic malformation; that they had wrongly interpreted the results of the few ultrasound scans the applicant underwent during her pregnancy. 21. The court rejected the first complaint as ill-founded, in so far as the patients had been informed that the risk of having a child with a genetic anomaly was 1/1,000,000. 22. The second complaint was also dismissed in view of the fact that, as revealed by the medical report adduced in the case, no genetic tests or examinations that could have revealed the above-mentioned risk existed. 23. In relation to the third complaint, the court held that according to the evidence in the case, the patient had been closely monitored during her pregnancy, with ultrasound examinations performed every three weeks. However, the medical report concluded that the lower limbs were visible from week 13-14, while the toes could be seen from week 20, an optimal interval therefore being between weeks 20-24. In such circumstances, the court considered that the interpretation of the ultrasound scans performed was problematic, in so far as more attention should have been paid to the particularities of the case and, potentially, more in-depth ultrasound tests should have been prescribed. The damage therefore consisted of the birth of a child with a genetic malformation. 24. From this perspective, the court held that concerning the minor child, there was no causal link between the medical wrongdoing and the alleged damage, in so far as the result of a faultless medical procedure would have been an abortion. Thus, and in view of the importance of the right to life, it could not be considered that it would have been better for the child not to have been born, having regard also to the fact that the malformation in question was not capable of substantially affecting the quality of the child’s life. It transpired from the file that the malformation could be corrected in the future by surgery. 25. The parents, however, had incurred concrete damage, in so far as had they known about the disease, they would have been able to decide whether to keep the child or to opt for an abortion. The court dismissed the claims concerning the pecuniary damage, in so far as the applicants had failed to substantiate it by means of relevant medical bills and documents. Moreover, the state social security system fully covered the costs of the necessary prosthesis for the patient. The court of appeal further awarded Mr and Mrs M.P. RON 20,000 for non-pecuniary damage, to be paid by doctor E.S., ecographer, jointly with the hospital; the doctor was held liable for negligence as he was the only one who could have detected the malformation in time for the applicants to be able to make a decision about terminating the pregnancy. In awarding this amount, the court also took into consideration the fact that the applicants had been informed that the risk of their child being born with a disability was 1/1,000,000, and that they had decided to take that risk. 26. According to the information submitted by the parties, since January 2004 the third applicant has received various prostheses at a general rate of twice per year, meaning that by 2011, he had undergone twenty-two changes of prosthesis. In 2011 he had major surgery, involving an amputation below the knee, which enabled him to be fitted with a more advanced prosthesis in 2012. 27. Article 185 of the Romanian Criminal Code on the illegal causing of abortion read at the relevant time as follows: “1. The act of interrupting the course of pregnancy, by any means, committed in one of the following circumstances:[...] (c) if the age of the embryo has exceeded fourteen weeks; is punishable by imprisonment from 6 months to 3 years. ... 6. Interruption to the course of pregnancy by a physician is not punishable in the following situations: (a) if interruption to the course of pregnancy was necessary in order to save the pregnant woman’s life, [or protect her] health or bodily integrity from a serious and imminent danger that could not have otherwise been removed; (b) in the case in para (1) c), when interruption to the course of pregnancy was necessary for therapeutic reasons, in accordance with legal provisions; (c) in the case in para (2) when the pregnant woman was unable to express her will, and the interruption was necessary for therapeutic reasons, in accordance with legal provisions.” 28. The relevant domestic provisions regarding the civil liability of medical staff are described in Eugenia Lazăr v. Romania, no. 32146/05, §§ 52-54, 16 February 2010. 29. A draft law on healthy procreation and medically assisted human procreation (no. L334/2004) was rejected by the Senate on 9 February 2006 following a decision of the Constitutional Court finding several sections of the draft law to be in breach of the provisions of the Constitution. 30. Law no. 95/2006 on the healthcare reform indicates in its articles 208-210 that the health insurance system is the main provider of healthcare, prosthetics included. 31. Law no. 448/2006 on the protection of persons with disabilities provides in its articles 35-37 that these persons are entitled to have a personal care giver, remunerated with approximately EUR 130 monthly; article 58 further provides that the families having a disabled child are entitled to a fixed monthly allowance of approximately EUR 47; the disabled child would receive twice the amount of a normal child allowance, reaching about EUR 18 a month. “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.” “1. Everyone has the right to respect for private life in relation to information about his or her health.” ... “The person who has suffered undue damage resulting from an intervention is entitled to fair compensation according to the conditions and procedures prescribed by law.” “1. The techniques of artificial procreation may be used only if the persons concerned have given their free, informed consent, explicitly and in writing, in accordance with national requirements. 2. Before obtaining such consent, the physician and the establishment using the techniques of artificial procreation must ensure that the persons concerned are given appropriate information and counselling about the possible medical, legal, social and, where relevant, genetic implications of this treatment, particularly, those which might affect the interests of the child to be born.” “The information given during the counselling prior to prenatal genetic screening and prenatal genetic diagnosis must be adapted to the person’s circumstances and be sufficient to reach a fully informed decision. This information should in particular cover the purpose of the tests and their nature as well as any risks which these tests present.” “Where there is an increased risk of passing on a serious genetic disorder, access to preconception counselling and, if necessary, premarital and preconception screening and diagnostic services should be readily available and widely known.” “(a) Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.” “Appropriate assessment and adequate management of risk related to medicine, life sciences and associated technologies should be promoted.” | 0 |
test | 001-173552 | ENG | NOR | ADMISSIBILITY | 2,017 | I.D. v. NORWAY | 4 | Inadmissible | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary | 1. The applicant, Ms I.D., is a Norwegian national, who was born in 1989 and lives in F. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Ms R. Arnesen, a lawyer practising in Bergen. 2 3. The applicant is the mother of X, a girl born in August 2011. The child was born out of wedlock and the parents do not live together. Prior to giving birth to X, the applicant moved to L, in the county of Nord-Trøndelag, where her mother lived. 4. On 13 September 2011, the family clinic (“familieklinikken”) at the hospital in L notified the child welfare authorities that the mother needed help beyond what could be offered by the health services. On 19 September 2011, the child welfare authorities received a notification from the psychiatric clinic at the same hospital, being worried about the applicant’s mental health and urging the authorities to give priority to the matter. On 29 September 2011, the public health nurse contacted the child welfare authorities, expressing concerns as to the applicant’s mental functioning and her ability to understand X’s signals and needs. The public health nurse also asked the authorities to give priority to the matter. 5. Upon these notifications, the child welfare authorities were in contact with the applicant, they held consultations with her, and observed the interplay between her and X. During this period, the applicant and X were also treated in hospital; first the applicant at the psychiatric clinic and subsequently both of them at the child clinic (“barneklinikken”), because X had lost weight. They were discharged on 23 December 2011. On 4 January 2012, the child welfare authorities offered the applicant a place with X at a family centre. She declined the offer. 6. In January 2012, X had again lost weight, and she and the applicant were referred to hospital. The applicant was for the second time offered a place at a family centre, but declined the offer. When X was to be discharged from the hospital, on 13 January 2012, the child welfare authorities made an emergency decision to take the daughter into public care. On 16 January 2012, the applicant accepted the offer to stay at the family centre, where she stayed with X from 26 January 2012 until 26 April 2012. After the stay, the authorities offered further assistance, but the applicant declined. The applicant was called in for a meeting with the authorities, but did not appear. In a letter of 24 May 2012 from the applicant’s lawyer, it was stated that she did not want assistance measures from the authorities. 7. On 5 July 2012, the child welfare authorities in L petitioned the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker) in Trøndelag for an order to place X in public care. 8. In August 2012, the applicant and her mother moved together to R, in the county of Oppland. 9. On 25 January 2013, the Trøndelag County Social Welfare Board decided to place X in public care and granted the applicant the right to visit her four times a year, each time for three hours. It noted that X was a vulnerable child, who had experienced disorder (“uro”) and change of carers. The Board held that the first months of a child’s life are paramount for the connection that is to be established between the child and the care provider. Insufficient connection may put the child’s further development at risk, and this includes risks of developing psychiatric problems. 10. Weight issues no longer posed a problem. The concerns related to X’s functioning with the applicant. X had developed positively during the stay at the family centre, but negatively in the period that followed the discharge. 11. Even if X was a vulnerable child, she was not considered to be a child with care needs which were out of the ordinary. However, the applicant was so immature and insecure as an adult, and so passive as a carer, that X’s fundamental needs of personal contact and security were not met. If the current situation were to continue, it would be detrimental to X’s further development. 12. According to staff at the family centre, whilst clearly loving X, the applicant showed little understanding of the child’s spectre of feelings and had major difficulties in reflection on and understanding of X’s different signals. In sum, the applicant’s own functioning was characterised as vulnerable. The Board considered that she had suffered from considerable mental health problems, but had declined recommended treatment of the underlying causes. The applicant had no education or work and a limited support network. She had had considerable problems relating to appointments and had appeared rigid and immature to the Board. Throughout all of X’s life, she had shown that she had difficulties with taking advice. Although the applicant had periodically shown willingness to accept advice, she had lacked the capacity to follow it. 13. The County Social Welfare Board found that further assistance measures would be insufficient to remedy the deficiencies in X’s care. The applicant had received comprehensive assistance measures over a period of time. The family centre had represented the most extensive assistance offer at the child welfare authorities’ disposal, and the applicant had been unable to follow even very specific advice. She did not appear to be particularly motivated for future co-operation with the authorities, and was considered as a young and immature mother. Whilst the Board recognised that her abilities to provide care might develop, it considered that achieving this would be a demanding and long-lasting process. 14. In conclusion, the County Social Welfare Board found that it would be in X’s best interest to be placed in public care. She needed carers who could offer a secure, predictable and stable daily life, and who were clear and consistent. It was decisive for X to be given carers who could offer social, linguistic, motor and cognitive stimulation, which would require that they could see and give priority to her needs. The applicant was not able to do so. 15. After the decision, the applicant and X lived in hiding from the child welfare authorities. 16. The applicant brought the Trøndelag County Social Welfare Board’s decision before the District Court (tingrett), which appointed a psychologist as an expert. This expert was, however, released from his appointment when it became clear that he was unable to establish contact with the applicant, as she was living in hiding. 17. At the oral hearing before the District Court, on 26 June 2013, the applicant was present. On the second day of the hearing, the court decided to postpone the proceedings as an agreement was reached that a new psychologist should be appointed as expert and further assess the care situation. The District Court also, on 28 June 2013, suspended the implementation of the County Social Welfare Board’s decision. 18. In August 2013, the applicant moved to F, in Sogn and Fjordane county, where she had two brothers. 19. The new expert delivered his written opinion to the District Court on 3 October 2013. 20. From the expert opinion, the child welfare authorities learnt of X’s whereabouts, and, on 4 October 2013, took an emergency decision to place her in foster care. The County Social Welfare Board approved the decision on 7 October 2013 and X was placed at a location without the applicant being made aware of her whereabouts. 21. The proceedings before the District Court were resumed on 15 October 2013. 22. In its judgment of 25 October 2013, the District Court, composed of one professional judge, one psychologist as expert judge and one lay person, in accordance with section 36-4 of the Dispute Act (see paragraph 53 below), upheld the decision of the County Social Welfare Board. 23. The District Court stated that X appeared to have developed adequately, but still found it likely that she was vulnerable due to her experiences with moving and a mother with limited parenting abilities. There were shortcomings in the applicant’s capacity to provide care. Although she had no clear medical diagnosis, she had personal problems and her ability to reflect was weak (“svak refleksjonsevne”). Professional assistance would be required if the applicant were to develop into a person with good care skills, who would also be able to handle challenging situations. The applicant had shown little understanding of her need for such assistance. In conclusion, the District Court found that there were serious deficiencies in the applicant’s parenting skills as far as the personal contact and security required for X were concerned. 24. As to assistance measures, the court-appointed expert had concluded that these would not remedy the challenges the applicant faced in her care of X. During the court proceedings, the applicant had declared that she did not need assistance, but that she would not oppose it. Although the District Court considered that the applicant would be able to develop, it concluded that she did not at that time have the necessary capacity for introspection and understanding of her need of help (“selvinnsikt og erkjennelse”). Against that background, it concluded that further assistance measures would not be in X’s best interests. 25. The applicant did not appeal against the District Court’s judgment. 26. In 2015, the applicant requested that X be returned to her. The case was heard by the County Social Welfare Board on 21 and 22 April 2015. The applicant met with her counsel and gave testimony. Nine witnesses were heard. 27. On 4 May 2015, the County Social Welfare Board rejected the request for X’s return, but increased the contact rights to five times per year, each time for three hours. 28. With respect to X’s needs, the Board noted that when the initial decision to place X in public care had been adopted, the Board had found that X was a vulnerable small child that had experienced disorder and changes of carers in her short life, but that she did not have special care needs. The District Court had at that time similarly found that X did not have special care needs, even though she was vulnerable. However, the Board assessed that subsequent to the care decisions, clear signs that X had been marked of living in serious neglect when cared for by the applicant, had come to light. She went up to strangers and called them “mummy”; had no protests against leaving the applicant; and did not give any signals when she was awake or woke up at night. Moreover, she was rocking (“rugget”) (for instance when the doorbell rang, she would hide under a table and rock), and it was difficult to obtain contact with her when it occurred. The foster mother had additionally described how X had been liable to knock herself on the head. 29. In a medical discharge summary from the local Children’s and Young People’s Psychiatric Out-Patient Clinic (Barne- og ungdomspsykiatrisk poliklinikk, BUP), dated 4 February 2015, X had been diagnosed with “other reactions to severe stress”. Her kindergarten had additionally described her as roaming (“flakkende”) and difficult to keep calm during meals and to involve in playing. The kindergarten had given X specific follow-up and offered her special pedagogical help ten hours per week. 30. In the Board’s view, X had, at the time when she had been placed in public care, beyond doubt shown clear symptoms of abnormal development (“skjevutvikling”) and clear signs of attachment problems (“tilknytningsproblematikk”). One of the psychologists had been of the view that X would probably have developed an attachment disorder (“tilknytningsforstyrrelse”), had she not been placed in public care. After the placement, however, X had developed positively in all areas. Despite the positive development she was still a vulnerable child with special needs for appropriate care. Consequently, her carers would need more than ordinary caring skills. 31. The applicant had also developed positively, she was older and her life had become more orderly. She appeared somewhat more mature, and she had had positive and promising recent experiences with work, albeit only for a very short time. 32. However, this development concerned primarily external structural conditions such as a more stable living situation and adaptation to social life. The applicant’s functioning still had to be characterised as vulnerable. For a number of years she had had issues with adaptation (“tilpasningsvansker”) and problems with her mental health. She was to a large degree evasive and distrustful and suffered periodically from depression issues. Although the applicant had become less isolated and no longer suffered from anxiety problems, the stability of her mental health was still uncertain. 33. Further, the Board reiterated that when the decision to place X in public care had been adopted, the Board had considered that the problems had primarily been at the level of emotional care. The applicant had major difficulties as to reflection and understanding of X’s different signals. 34. The appointed psychologist had described that when the applicant had to take care of X on her own, she was incapable both as concerned physical and psychological care and stimulation. As the applicant did not understand that she needed help, it would be difficult to defend the appropriateness of her having the care. In many ways, the applicant was herself in need of help, as she had a relatively weak general functioning and ability to adapt. 35. Moreover, the appointed psychologist had observed the interplay between the applicant and X during two visits and compared his own observations to information given by the child welfare authorities, the municipal health service and the family centre. The information gave a relatively unambiguous picture of the applicant as a person with low stamina and tolerance of frustration, and who showed little reflection about herself as a carer as she had difficulties in seeing the child and its needs. 36. The Board found that the prior evaluations of the applicant’s caring skills indicated that she had fundamental shortcomings in her care abilities that were likely connected to her personality and her difficult background. 37. Only a short time had passed since the decision of public care had been made, and the Board noted the difficulty inherent in attempting to change shortcomings that were connected to fundamental personality traits. The applicant’s emotional caring skills did not show signs of improvement and it was difficult to see that she had a greater understanding of the care issues; she continued to be of the opinion that her care had been appropriate when X lived with her. The applicant had still a considerably reduced ability for reflection and mentalisation concerning X’s needs and signals, and she demonstrated little insight as to the challenges X’s return would pose. The need for assistance measures would be so comprehensive that the applicant would need a person to assist her most of the day. This went beyond what the child authorities could offer. 38. The County Social Welfare Board additionally concluded that X had become so attached to the foster home that it would be detrimental to her further possibilities of developing if she were to be returned at that time. Although she had developed normally and well, another move would imply a clear risk for her and the danger of new attachment problems. 39. The decision of the County Social Welfare Board was brought before the District Court, which appointed a psychologist as expert. The expert delivered her report on 26 August 2015. 40. The District Court, again composed of one law judge, one psychologist and one lay person (see paragraphs 22 above and 53 below), heard the case from 7 to 9 October 2015. The applicant met with her counsel and gave testimony. The court-appointed expert gave oral testimony. Nine other witnesses were heard. 41. In its judgment of 23 October 2015, the District Court confirmed the Board’s decision of 4 May 2015. It observed at the outset that the Board, when deciding on the public care in 2013, had found that X did not have care needs out of the ordinary (see paragraph 11 above). However, she had been described as a child who had received marginal care and was therefore vulnerable. 42. The psychologist appointed as court expert (see paragraph 39 above) had described X as adequate for her age in spite of the insecurity and vulnerability she had developed when staying with the applicant in the beginning of her life. When she had arrived in the foster home in 2013, she had not asserted her needs and the foster parents had to teach her how to do so. She had been uncritical of strangers, she whimpered to get attention, and hit herself on the head when she was tired. In order to establish attachment to the foster home, it had only been the foster mother who had changed her diapers, fed her, put her to bed and comforted her. When the expert delivered her report in August 2015, X functioned very well in the foster home, and she was able to distinguish between the foster mother and the applicant as different mothers to her. In the kindergarten, special arrangements were made for X as new situations could be difficult for her. Apart from this, she functioned well in the kindergarten. The expert concluded that X was well-functioning in many ways, but that she, based on the difficulties and symptoms of development disorder she had shown, was still a vulnerable child who had special needs for an adapted care. 43. The foster mother’s testimony before the District Court had supported the description of the facts that had formed the basis of the expert’s evaluation of X and her needs. Similarly to the Board, the City Court further took account of X’s treatment at the Young People’s Psychiatric Out-Patient Clinic, and her diagnosis of “other reactions to severe stress” that had been given there, as well as the descriptions from the kindergarten on how X had developed positively but still needed particular supervision. 44. In conclusion, the District Court found that X appeared normal for her age, but that she was still a vulnerable child with an extra need for security and fixed routines. She was for that reason considered as dependent on carers with more than ordinary good care skills – adults who would be able to reflect on her reactions and behaviour. 45. It was likely that X’s symptoms of mal-development and attachment problems, that had been present during the first period after she had been placed in public care, had their major cause in neglect from the applicant during the two first years of X’s life. The fact that the applicant, after the decision on placement had been made in 2013, “fled” with X – i.e. relocated to other parts of the country without the authorities’ knowledge – in order to evade the implementation of the decision, not only supported the assessment that the applicant had been immature and with little understanding of the consequences of her own acts at that time but had also been a considerable strain and source of insecurity for X. 46. The applicant’s mental health situation had improved during the spring and summer of 2014, and this might indicate that they were partly linked to the placing of X in public care. However, the court found additional reason to point out that the applicant’s mental health had been troublesome also before that measure had been adopted. First, the court-appointed psychologist had in his report noted that the applicant understood that she had had a childhood and upbringing unfortunate for her personal development. She had herself been followed up by the Children’s and Young People’s Psychiatric Out-Patient Clinic for five years. Secondly, it had been the applicant’s mental health that had triggered the notifications of concern that led to the engagement of the child welfare authorities in 2011. 47. The applicant had undergone a considerably positive development with respect to practical arrangements. She had obtained her own apartment and an employment internship position supported by the social welfare authorities that she followed up well. Her finances were orderly; she had contact with her brothers and friends. She would thus be capable of providing appropriate material care. 48. However, it was doubtful whether the applicant would be able to offer X satisfactory emotional care. Whilst the applicant herself was of the opinion that she had no mental health issues, it had emerged that she had been depressed and had been followed up by the municipal authorities in order to activate. Although she had had a positive personal and social development, she was still vulnerable, and the court-appointed expert had concluded that she did not have the prerequisites and resources necessary to give X the emotional care that would support the child’s development. In the expert’s view, it was a positive matter that the applicant managed to follow up on the initiatives by the municipal and social security authorities, and she should be given some more time to establish as an independent adult. Over some time, she should be able to show that she had been stably well-functioning and could take over the care for her child. 49. The District Court agreed with the expert’s assessment and pointed particularly to the fact that the applicant’s positive development was thus far mostly connected to factors that impacted on the abilities to give material care. Ultimately, the court did not deem it necessary to decide whether the applicant was capable of offering X care that would meet the conditions for her return. X had developed ties to the foster home that provided a safe environment for her, and there were risks attached to an eventual return to the uncertain conditions in the applicant’s home. X had shown symptoms of considerable attachment problems when she was placed in the foster home in the autumn of 2013. These problems had had their major cause in the neglect X experienced during her first two years, when living with the applicant. Whilst X had had a significantly positive development during the time in foster care and had become close to adequate in development for her age, she was still vulnerable and needed care beyond what a normal child in her age needed. The good and stable care situation in the foster home had been the primary reason for the positive development. Returning the care of X to the applicant would at that time be capable of implying serious problems for X. It would imply returning to the environment in which X had been when the care was insecure, an environment which had formed the major reason for the attachment problems visible at the time when she had been placed in public care in 2013. 50. Whilst finding that the public care of X should not be discontinued, the District Court increased the contact rights to six times a year, each time for three hours. It observed in that regard that a balance had to be struck between, on the one hand, the child’s interest in stability and the possibility to develop bonds to the foster home. On the other hand, the contact with her biological parents had to be taken care of. When assessing the extent of the visiting rights, the District Court found that based on the information currently available, the placement had to be considered as long-term. In this connection it recalled that it had concluded that X could not be returned to the mother at that point in time because of her attachment to the foster home. The court considered it likely that this attachment would increase. Moreover, the court had to take account of the fact that X’s father also had similar rights, four times a year. However, the visits by the applicant had appeared positive. If the totality of the visits by both parents turned out to be troublesome to X, it would be more reasonable to reduce the father’s visiting rights than those of the applicant. 51. The High Court (lagmannsrett) refused leave to appeal on 22 January 2016. The Supreme Court (Høyesterett) rejected an appeal against that refusal on 31 March 2016. 52. The relevant sections of the Child Welfare Act of 17 July 1992 (barnevernloven) read as follows: “Section 4-12 Care orders A care order may be issued (a) if there are serious deficiencies in the daily care received by the child, or serious deficiencies in terms of the personal contact and security needed by a child of his or her age and development, (b) if the parents fail to ensure that a child who is ill, disabled or in special need of assistance receives the treatment and training required, (c) if the child is mistreated or subjected to other serious abuse at home, or (d) if it is highly probable that the child’s health or development may be seriously harmed because the parents are unable to take adequate responsibility for the child. An order may only be made under the first paragraph when necessary due to the child’s current situation. Hence, such an order may not be made if satisfactory conditions can be created for the child by assistance measures under section 4-4 or by measures under section 4-10 or section 4-11. An order under the first paragraph shall be made by the county social welfare board under the provisions of Chapter 7. Section 4-21 Revocation of care orders The county social welfare board shall revoke a care order when it is highly probable that the parents will be able to provide the child with proper care. The decision shall nonetheless not be revoked if the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her. Before a care order is revoked, the child’s foster parents shall be entitled to state their opinion. The parties may not demand that a case concerning revocation of a care order shall be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months. If a demand for revocation of the previous order or judgment was not upheld with reference to section 4-21, first paragraph, second sentence, new proceedings may only be demanded when documentary evidence is provided to show that significant changes have taken place in the child’s situation.” 53. The relevant sections of the Dispute Act of 17 June 2005 (tvisteloven) read as follows: “Section 36-1 Scope (1) The provisions of this Chapter apply to legal actions which pursuant to special statutory provisions may be brought for judicial review of administrative decisions on coercive measures against individuals. Other claims cannot be included in the action. ... Section 36-4 The composition of the court. Expert panel (1) The district court shall sit with two lay judges, of whom one shall be an ordinary lay judge and the other shall be an expert. In special cases, the court may sit with two professional judges and three lay judges, of whom one or two shall be experts. ...” | 0 |
test | 001-161054 | ENG | NLD | CHAMBER | 2,016 | CASE OF GARIB v. THE NETHERLANDS | 3 | No violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom to choose residence) | Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1971 and now lives in Vlaardingen. 6. On 25 May 2005 the applicant moved to the city of Rotterdam. She took up residence in rented property at the address A. Street 6b. This address is located in the Tarwewijk district in South Rotterdam. The applicant had previously resided outside the Rotterdam Metropolitan Region (Stadsregio Rotterdam). 7. The owner of the property asked the applicant, who by this time had two young children, to vacate the property as he wished to renovate it for his own use. He offered to let the applicant a different property at the address B. Street 72A, also in the Tarwewijk area. The applicant stated that, since it comprised three rooms and a garden, the property was far more suitable for her and her children than her A. Street dwelling which comprised a single room. 8. In the meantime, Tarwewijk had been designated under the Inner City Problems (Special Measures) Act (Wet bijzondere maatregelen grootstedelijke problematiek, see below) as an area in which it was not permitted to take up new residence without a housing permit (huisvestingsvergunning). Accordingly, on 8 March 2007 the applicant lodged a request for a housing permit with the Burgomaster and Aldermen (burgemeester en wethouders) of Rotterdam in order to be permitted to move to B. Street 72A. 9. On 19 March 2007 the Burgomaster and Aldermen gave a decision refusing such a permit. They found it established that the applicant had not been resident in the Rotterdam Metropolitan Region for six years immediately preceding the introduction of her request. Moreover, since she was dependent on social-security benefits under the Work and Social Assistance Act (Wet Werk en Bijstand), she did not meet the income requirement that would have qualified her for an exemption from the residence requirement. 10. The applicant lodged an objection (bezwaarschrift) with the Burgomaster and Aldermen. 11. On 15 June 2007 the Burgomaster and Aldermen gave a decision dismissing the applicant’s objection. Adopting as their own an advisory opinion by the Objections Advisory Committee (Algemene bezwaarschriftencommissie), they referred to housing permits as an instrument to ensure the balanced and equitable distribution of housing and the possibility for the applicant to move to a dwelling not situated in a “hotspot” area. 12. The applicant lodged an appeal (beroep) with the Rotterdam Regional Court (rechtbank). As relevant to the case, she argued that the hardship clause ought to have been applied. She relied on Article 2 of Protocol No. 4 of the Convention and Article 12 of the 1966 International Covenant on Civil and Political Rights. 13. The Regional Court gave a decision dismissing the applicant’s appeal on 4 April 2008. As relevant to the case before the Court, its reasoning was as follows: “Section 8(1) of the Inner City Problems (Special Measures) Act provides for the possibility of temporary restrictions on freedom of residence in areas to be indicated by the Minister [sc. the Minister of Housing, Spatial Planning and the Environment (Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer)]. The aim of these restrictions is to reverse a process of overburdening and decreasing quality of life, particularly by striving towards districts whose composition is more mixed from a socioeconomic point of view. The restrictions are also intended actively to counteract the existing segregation of incomes throughout the city through the regulation of the supply of housing in certain districts and in so doing improve quality of life for the inhabitants of those districts (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 2004/2005, 30 091, no. 3, pages 11-13). In view of the aims of the law, as set out, these temporary restrictions on the freedom to choose one’s residence cannot be found not to be justified by the general interest in a democratic society. Nor can it be found that, given the considerable extent of the problems noted in certain districts in Rotterdam, the said restrictions are not necessary for the maintenance of ordre public. The Regional Court takes the view that the legislature has sufficiently shown that in those districts the ‘limits of the capacity for absorption’ have been reached as regards care and support for the socioeconomically underprivileged and that moreover in those districts there is a concentration of underprivileged individuals in deprived districts as well as considerable dissatisfaction among the population about inappropriate behaviour, nuisance and crime.” 14. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). 15. On 4 February 2009 the Administrative Jurisdiction Division gave a decision dismissing the applicant’s further appeal. As relevant to the case before the Court, its reasoning included the following: “The Administrative Jurisdiction Division finds that, considering that the area in issue is one designated under section 5 of the Inner City Problems (Special Measures) Act, the Burgomaster and Aldermen were entitled to take the view that the restriction [on freedom to choose one’s residence] is justified in the general interest in a democratic society within the meaning of Article 12 § 3 of the 1966 International Covenant on Civil and Political Rights. The area in issue is a so-called ‘hotspot’, where, as has not been disputed, quality of life is under threat. The restriction resulting from section 2.6(2) of the 2003 Housing Bye-law (Huisvestingsverordening 2003) is of a temporary nature, namely for up to six years. It is not established that the supply of housing outside the areas designated by the Minister in the Rotterdam Metropolitan Region is insufficient. What [the applicant] has stated about waiting times does not lead the Administrative Jurisdiction Division to reach a different finding. The Administrative Jurisdiction Division further takes into account that pursuant to section 7(1), introductory sentence and under b of the Inner City Problems (Special Measures) Act, the Minister is empowered to rescind the designation of the area if it turns out that persons seeking housing do not have sufficient possibility of finding suitable housing within the region in which the municipality is situated. In view of these facts and circumstances the Administrative Jurisdiction Division finds that the restriction in issue is not contrary to the requirements of a pressing social need and proportionality. The Administrative Jurisdiction Division therefore finds, as the Regional Court did, that section 2.6(2) of the 2003 Housing Bye-law does not violate Article 2 of Protocol No. 4 of the Convention or Article 12 of the 1966 International Covenant on Civil and Political Rights.” 45. An evaluation report after the first year following the introduction of the housing permit in Rotterdam, commissioned by Rotterdam’s own City Construction and Housing Service (Dienst Stedebouw en Volkshuisvesting), was published on 6 December 2007 by the Centre for Research and Statistics (Centrum voor Onderzoek en Statistiek), a research and advice bureau collecting statistical data and carrying out research relevant to developments in Rotterdam in areas including demographics, the economy and employment (hereafter “the 2007 evaluation report”). 46. The report notes a reduction of the number of new residents dependent on social-security benefits under the Work and Social Assistance Act in “hotspot” areas, though not, of course, a complete stop because Rotterdam residents of six years’ standing are not prevented from moving there. 47. From July 2006 until the end of July 2007 there had been 2,835 requests for a housing permit. Of these, 2,240 had been granted; 184 had been refused; 16 had been rejected as incomplete; and 395 were still pending. The hardship clause (section 8(2) of the Inner City Problems (Special Measures) Act) had been applied in 38 cases. 48. Three-quarters of the housing permits granted concerned housing let by private landlords; the remainder – 519 – had been granted through the intermediary of social housing bodies (woningcorporaties). The latter selected their tenants with due regard to the official requirements, so that refusals of housing permits with regard to social housing were unheard of. 49. Of the persons refused a housing permit, 73 (40 % of all those who met with a refusal) had managed to find housing elsewhere relatively quickly. 50. The 2007 evaluation report was presented to the local council on 15 January 2008. On 24 April 2008 the local council voted to maintain the housing permit system as was and have a new evaluation report commissioned for the end of 2009. 51. A second evaluation report, also commissioned by Rotterdam’s City Construction and Housing Service, was published by the Centre for Research and Statistics on 27 November 2009. It covered the period from July 2006 until July 2009 (“the 2009 evaluation report”), during which the events complained of took place. 52. During this period, the social housing bodies had let 1,712 dwellings in the areas concerned. Since the social housing bodies could only accept tenants who qualified for a housing permit, no applications for such a permit had been rejected in this group. 53. Out of 6,469 applications for a housing permit relating to privatelylet housing, 4,980 had been accepted (77%); 342 had been refused (5%); and 296 had been pending at the beginning of July 2009. Examination of a further 851 (13%) had been discontinued without a decision being taken, generally because these applications had been withdrawn or abandoned; the assumption was that many of these applications would in any case have been rejected. It followed, therefore, that if the pending cases were not taken into account, approximately one-fifth of this category of applications had been either refused or not pursued to a conclusion. 54. The reason to reject an application for a housing permit had been related to the income requirement in 63% of cases, sometimes in combination with another ground for rejection; failure to meet the income requirement had been the sole such reason in 56% of cases. 55. Of 342 persons refused a housing permit, some two-thirds had managed to find housing elsewhere in Rotterdam (47%) or elsewhere in the Netherlands (21%). 56. The hardship clause had been applied 185 times – expressed as a percentage of applications relating to privately-let housing, 3% of the total. These had been cases of preventing squatters from taking over housing left empty (antikraak), illegal immigrants whose situation had been regularised by a general measure (generaal pardon), assisted living arrangements for vulnerable individuals (begeleid wonen), cooperative living arrangements (woongroepen), start-up enterprises, the re-housing of households forced to clear substandard housing for renovation, and foreign students. In addition, in one-third of cases the hardship clause had been applied because a decision had not been given within the prescribed time-limit. 57. The effects of the measure were considered based on four indicators: proportion of residents dependent on social-security benefits under the Work and Social Assistance Act, corrected for the supply of suitable housing; perception of safety; social quality; and potential accumulation of housing problems: (a) It had been observed that in the areas where the housing permit requirement applied, the reduction of the number of new residents dependent on social-security benefits under the Work and Social Assistance Act had been more rapid in “hotspot” areas than in other parts of Rotterdam. In addition, the number of residents in receipt of such benefits as a proportion of the total population of those areas had also declined, although it was still greater than elsewhere. (b) In two of the areas where the housing permit requirement had been introduced, the increase in the perception of public safety had been more rapid than the Rotterdam average. Tarwewijk had shown an increase initially, but was now back to where it had been before the measure was introduced. One other area had actually declined significantly in this respect. All of the areas where the housing permit requirement applied were perceived as considerably less safe than Rotterdam as a whole. (c) In terms of social quality, there had been improvement in most of the parts of Rotterdam where problems existed, Tarwewijk among them. It was noted, however, that the effect of the housing permit in this respect was limited, since it only influenced the selection of new residents, not that of residents already in place. (d) Housing problems – defined in terms of turnover, housing left unused, and house price development – had increased somewhat in the affected areas including Tarwewijk, though on the whole at a slower rate there than elsewhere. Reported reasons for the increase were an influx of immigrants of mostly non-European extraction (nieuwe Nederlanders, “new Netherlands nationals”) and new short-term residents from Central and Eastern Europe; the latter in particular tended to stay for three months or less before moving on, and their economic activity was more difficult to keep under review as many were self-employed. 58. Social housing bodies tended to view the housing permit requirement as a nuisance because it created additional paperwork. They perceived the measure rather as an appropriate instrument to tackle abuses by private landlords, provided that it be actively enforced and administrative procedures be simplified. Others with a professional involvement in the Rotterdam housing market mentioned the dissuasive effect of the measure on would-be new residents of the affected areas. 59. The report suggested that the housing permit requirement might no longer be needed for one of the existing “hotspots” (not Tarwewijk). Conversely, five other Rotterdam districts scored high for three indicators, while a sixth exceeded critical values for all four. 60. A third evaluation report, this time commissioned by Rotterdam’s City Development Service (Housing Department), was published by the Centre for Research and Statistics in August 2012 (second revised edition). It covered the period from July 2009 until July 2011 (“the 2011 evaluation report”). 61. Based on the same indicators and methodology as the previous report, it concluded that the housing permit system should be continued in Tarwewijk and two other areas (including one in which it had been introduced in the meantime, in 2010); discontinued in two others; and introduced in one area where it was not yet in force. 62. On 18 July 2012 the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) sent a separate evaluation report assessing the effectiveness of the Inner City Problems (Special Measures) Act and its effects in practice to the Lower House of Parliament, as required by section 17 of that Act. The Minister’s missive stated the intention of the Government to introduce legislation in order to extend the validity of the Inner City Problems (Special Measures) Act. Requests to that effect had been received from a number of affected cities. It was noted that not all of the cities concerned had made use of all of the possibilities offered by the Act; in particular, only Rotterdam used housing permits to select new residents for particular areas. Appended to the Minister’s letter was a copy of the 2009 evaluation report and a letter from the Burgomaster and Aldermen of Rotterdam in which, inter alia, the desirability was stated of extending beyond the first two four-year periods the indication of particular areas for applying the housing permit requirement: the measure was considered a success, and a twenty-year programme involving the large-scale improvement of housing and infrastructure (the “National Programme Quality Leap South Rotterdam” (Nationaal Programma Kwaliteitssprong Rotterdam Zuid, see below)) had been started in the southern parts of Rotterdam in 2011. 63. On 19 September 2011 the Minister of the Interior and Kingdom Relations (on behalf of the Government), the Burgomaster of Rotterdam (on behalf of the municipality of Rotterdam), and the presidents of a number of South Rotterdam boroughs (deelgemeenten), social housing bodies and educational institutions signed the National Programme Quality Leap South Rotterdam. This document noted the social problems prevalent in South Rotterdam inner-city areas, which it was proposed to address by providing improved opportunities for education and economic activity and improving, or if need be replacing, housing and infrastructure. It was intended to terminate the programme by the year 2030. 64. On 31 October 2012 the Minister of the Interior and Kingdom Relations, Rotterdam’s Alderman for housing, spatial planning, real property and the city economy (wethouder Wonen, ruimtelijke ordening, vastgoed en stedelijke economie) and the presidents of three social housing bodies active in Rotterdam signed an “agreement concerning a financial impulse for the benefit of the Quality Leap South Rotterdam (2012-2015))” (Convenant betreffende een financiële impuls ten behoeve van de Kwaliteitssprong Rotterdam Zuid (2012-2015)). This agreement provided for a review of priorities in Government financing of housing and infrastructure projects in the South Rotterdam area within existing budgets and for a once-only additional investment of 122 million euros (EUR). Of the latter sum, EUR 23 million had been reserved by the municipality of Rotterdam until 2014; another EUR 10 million would be added for the period starting in 2014. These funds would be used to refurbish or replace 2,500 homes in South Rotterdam. A further EUR 30 million would be provided by the Government. The remainder would be spent by the social housing bodies on projects within their respective remit. 65. On 19 November 2013 the Government introduced a Bill proposing to amend the Inner City Problems (Special Measures) Act (Parliamentary Documents, Lower House of Parliament 2013/2014, 33 797, no. 2). The Explanatory Memorandum stated that its purpose was to empower municipalities to tackle abuses in the private rented housing sector, give municipalities broader powers of enforcement and make further temporal extension of the Act possible. 66. The Inner City Problems (Special Measures) (Extension) Act (Wet uitbreiding Wet bijzondere maatregelen grootstedelijke problematiek) entered into force on 14 April 2014, enabling the designation of particular areas under section 8 of the Inner City Problems (Special Measures) Act to be extended the day before it was due to expire. It makes further extensions of the designation possible for successive four-year periods (section 5(2) of the Inner City Problems (Special Measures) Act, as amended). 67. A further Bill was introduced on 8 October 2015 (Parliamentary Documents, Lower House of Parliament 2015/2016, 34 314, no. 2). It purports to grant municipalities powers to deny housing permits to individuals with a criminal record. According to its Explanatory Memorandum (Parliamentary Documents, Lower House of Parliament 2015/2016, 34 314, no. 3), the intention is to provide a legal basis for measures likely to constitute interferences with the right of freedom to choose one’s residence, as guaranteed by Article 2 of Protocol No. 4 of the Convention and Article 12 of the International Covenant on Civil and Political Rights, and – since the measures in issue will of necessity entail the disclosure to local authorities of police information – with the right to private life as guaranteed by inter alia Article 8 of the Convention, Article 17 of the International Covenant on Civil and Political Rights and Article 7 of the Charter of Fundamental Rights of the European Union. It is currently pending in the Lower House of Parliament. 68. On 27 September 2010 the applicant moved to rented housing in the municipality of Vlaardingen. This municipality is part of the Rotterdam Metropolitan Region. 69. As of 25 May 2011 the applicant had been resident in the Rotterdam Metropolitan Region for more than six years. She therefore became entitled to reside in one of the areas designated under the Inner City Problems (Special Measures) Act regardless of her sources of income. 70. The Government stated that no renovation or building permits were sought for the dwelling in A. Street inhabited by the applicant at the time of the events complained of between 2007 and 2010 and that no such permit was applied for in the period prior to 2007 either. | 0 |
test | 001-172661 | ENG | AZE | CHAMBER | 2,017 | CASE OF HUSEYNOVA v. AZERBAIJAN | 3 | 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);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 6. The applicant was born in 1978 and lives in Norway. 7. Mr Elmar Huseynov, the applicant’s husband, was a prominent independent journalist in Azerbaijan. At the time of the events he worked as the editor-in-chief of the weekly magazine Monitor, which was strongly critical of the Government as well as the opposition. He had also been the owner of the magazine since 1996 and wrote analytical and investigative articles for each edition under his own name. 8. Various civil and criminal proceedings had been brought against Mr Huseynov since the beginning of his journalistic activity for the publication of critical articles about the President of Azerbaijan and members of his family, and about members of the parliament, Government and other State officials. In total, thirty-four proceedings were instituted against him by various public officials. Moreover, copies of the magazine had been confiscated on several occasions and the domestic authorities sometimes prevented its publication. 9. According to the applicant, her husband regularly received threats because of his critical articles. In particular, in January 2004 a police officer had threatened him with death and told him to stop writing about the President and his family. 10. At around 9 p.m. on 2 March 2005, Mr Huseynov was shot dead on the third floor of his apartment building as he returned home from work. 11. Mr Huseynov’s murder received wide local and international media coverage and was unanimously condemned by various politicians, international organisations, and local and international NGOs. 12. On 2 March 2005 criminal proceedings were instituted under Articles 120.2.4 (murder) and 228.1 (illegal possession of weapons) of the Criminal Code by the Serious Crimes Department (“the SCD”) of the Prosecutor General’s Office. 13. On the same day a record relating to the inspection of the scene of the crime and the examination of the body (hadisə yerinə və meyitə baxış keçirilməsi haqqında protokol) was drawn up. It appears from the record that one bullet and seven cartridges were found at the crime scene and that two bullets were removed from the body. 14. On 3 March 2005 the investigator in charge of the case ordered a post-mortem examination of the body, which was carried out on the same day. Report no. 27 dated 10 March 2005 showed that death had resulted from bleeding caused by gunshot wounds. The expert also found that death was likely to have occurred a few minutes after the injuries had been sustained. 15. On 3 March 2005 a pistol with a silencer and a knitted hat were found near the crime scene. On the same day the investigator ordered forensic medical, ballistic and chemical trace examinations of the pistol and silencer, the bullets, the cartridges, the victim’s hair and nails, and the clothes that he had been wearing on 2 March 2005. Report no. 2074/2108/2109, dated 7 March 2005, concluded that the pistol in question was a Baikal pistol that had been produced in 2003 in Russia and that it had been used in the murder. 16. Still on 3 March 2005 the investigator asked a telecommunications company to provide details on any mobile telephones that had been used near the scene of the crime between 8.30 p.m. and 9 p.m. on 2 March 2005. 17. On 4 March 2003 the Prosecutor General’s Office, the Ministry of Internal Affairs (“the MIA”) and the Ministry of National Security (“the MNS”) issued a joint statement officially informing the public of the institution of criminal proceedings in connection with the murder of the applicant’s husband. 18. On 5 March 2005 the crime scene was again inspected by the investigator. 19. On the same day the investigator questioned the applicant as a witness in connection with her husband’s murder. She stated that she had not seen the killer, but that from February 2005 a person, who had introduced himself as Vusal, had come to their flat on several occasions and asked for a meeting with her husband. He had always arrived when her husband had been absent and had asked various questions about his whereabouts and working hours. The applicant further stated that she could not say who had murdered her husband, but she was sure that he had been murdered because of his journalistic activity. 20. On 7 March 2005 a photofit picture of the person who had introduced himself as Vusal was compiled on the basis of the applicant’s statements. 21. On 8 March 2005 the investigator arranged an identity parade in the presence of the applicant. However, she could not identify the man who had called himself Vusal among the people who took part in the identity parade. 22. On 19 March 2005 the applicant was granted victim status. 23. Further to various requests sent in March 2005 to the Russian authorities concerning the pistol found at the crime scene, the Russian authorities confirmed that the pistol in question had been produced in Russia as a gas pistol and had then been exported to Bulgaria on the basis of a contract with a Bulgarian company. It further appears from a letter, dated 23 March 2005 and signed by the Bulgarian Deputy Minister of Internal Affairs, that there was no record on the buyer of the pistol after its import to Bulgaria because Bulgarian legislation did not provide for such records for the buying and selling of gas pistols. 24. In the meantime, the prosecuting authorities identified two mobile telephone numbers which had allegedly been used by the perpetrators of the murder. On 26 March 2005 T.B., an Azerbaijani national, was charged under Article 320.1 of the Criminal Code (use of false documents) as he had purchased the mobile telephone numbers in a mobile telephone shop in Baku by giving false information about his identity. During questioning, T.B. stated that on 27 February 2005 he had bought the numbers at the request of T.X. and T.A., who had asked him to obtain a telephone number registered in someone else’s name. He further stated that he knew the men from Georgia where he was born and they had told him that they were in Baku on business. It appears from the documents in the case file that in July 2005 the Nizami District Court found T.B. guilty under Article 320.1 of the Criminal Code and sentenced him to two years’ imprisonment. 25. On 6 April 2005 the Prosecutor General reclassified the criminal case under Articles 277 (acts of terror) and 228.1 (illegal possession of weapons) of the Criminal Code and decided to hand the investigation over to the MNS. 26. On 3 May 2005 the investigator in the case showed the applicant four photographs in order to try to identify the person who had introduced himself as Vusal. The applicant identified the individual in photograph no. 2 as that person. 27. On the same day the investigator charged T.X., a Georgian national, under the aforementioned Articles 277 and 228.1 and issued a warrant for his arrest. It appears from the investigator’s decision that T.X. was suspected of being involved in the murder and had been identified as the person calling himself Vusal. 28. On 4 May 2005 the Prosecutor General’s Office, the MIA and the MNS issued a joint statement that T.X. had been identified as the person involved in the murder. The statement also noted that T.X. had left the country immediately after the murder and that an arrest warrant had been issued. It also indicated that T.X. had been identified by the applicant as the person who had introduced himself as Vusal before the murder. Lastly, the statement pointed out that the investigation was being carried out in collaboration with the Federal Bureau of Investigation of the United States of America (“the FBI”) and Turkey’s Central Security Department. 29. It appears from the case file that on 5 May 2005 the investigator questioned T.X.’s sister and son, who resided in Azerbaijan. 30. In the meantime, on 4 May 2005 the investigator ordered a new ballistic and chemical examination of the pistol and silencer found at the scene of the crime. The investigator noted that although the examination of 7 March 2005 had concluded that the pistol was a Baikal firearm produced in 2003 in Russia, the material collected during the investigation had revealed that the pistol had not been produced as a regular firearm but as a gas pistol that had subsequently been modified. On 27 May 2005 a panel composed of three experts issued report no. 4351/4352/4358 on the new ballistic and chemical examination of the pistol and the silencer. The experts reiterated the findings of the 7 March 2005 report (see paragraph 15 above), concluding that the pistol had been produced as a firearm and had not been modified. 31. On 11 May 2005 the investigator questioned the applicant about a suspicious person that she had seen in their building in February 2005. 32. On 20 May 2005 the Prosecutor General’s Office, the MIA and the MNS issued a new statement, informing the public that T.A., a Georgian national, had been identified as another suspect. The statement said that a warrant for his arrest had been issued. 33. It appears from a letter dated 27 May 2005, signed by the head of the Azerbaijani National Central Bureau of Interpol, that notices relating to T.X. and T.A. had gone out via Interpol. 34. The case file shows that in March and May 2005 the investigating authorities submitted hair samples to the FBI for a trace evidence examination. They were taken from the hat found near the scene of the crime and from pillowcases found in the flat that T.X. and T.A. had rented in Baku. The results of the examination revealed that some fibres found on the hat and pillowcases had the same microscopic characteristics and optical properties, consistent with them having come from the same source. 35. On 31 May 2005 the applicant wrote to the MNS asking for information concerning the progress of the investigation. In particular, she noted that although she had been recognised as a victim, the investigating authorities had failed to share any information on the investigation with her. 36. It can be seen in a document dated 8 June 2005, signed by the investigator, that he informed the applicant by telephone about the investigation. In particular, he informed her that various investigative actions had been conducted, that T.X. and T.A. had been identified as the perpetrators of the murder, that an international warrant for their arrest had been issued and that some forensic examinations had been carried out by the FBI. 37. On 2 June and 12 July 2005 the Prosecutor General’s Office and the MNS issued joint statements on the forensic examinations carried out in the United States of America. They stated that the results of the examinations had confirmed that T.X. and T.A. were directly involved in the murder. 38. In the meantime, on 16 and 30 May 2005 the Azerbaijani authorities asked the Georgian authorities to extradite T.X. and T.A. 39. By a letter of 1 July 2005, signed by the Deputy Prosecutor General of the Republic of Georgia, the Georgian authorities refused to extradite T.X. and T.A. on the grounds that as they were Georgian nationals they could not be extradited to a foreign country. However, relying on the CIS Convention on Legal Assistance and Legal relations in Civil, Family and Criminal Matters of 22 January 1993 and the Treaty between Azerbaijan and Georgia on Legal Assistance and Legal relations in Civil, Family and Criminal Matters of 8 March 1996 (see paragraphs 66-70 below), the Deputy Prosecutor General stated in the same letter that the Georgian authorities undertook to institute criminal proceedings against its two nationals at the request of the Azerbaijani authorities in case of the transfer of the criminal case to the Georgian authorities. 40. By two separate letters, dated 20 July 2005, the Prosecutor General of Azerbaijan again asked his Georgian counterpart for the arrest and extradition of T.X. and T.A. The Prosecutor General also asked the Georgian authorities to provide legal assistance to the Azerbaijani authorities by allowing two Azerbaijani investigators to conduct investigative actions on Georgian soil. 41. In July and August 2005 the Georgian authorities conducted various investigative actions at the request of their Azerbaijani counterparts. In particular, on 26 July 2005 two flats in Tbilisi were searched and various people were questioned in connection with the criminal proceedings instituted in Azerbaijan. 42. On 9 August 2005 the investigator showed various photographs to the applicant for identification. Although the applicant stated that she had seen two of the people on the photographs somewhere before, she could not remember more details about them. 43. On 15 August and 6 September 2005 the investigator questioned the applicant about her neighbours and the clothes worn by the man who called himself Vusal. 44. On 20 November 2005 the applicant again wrote to the MNS, asking for an effective investigation into the murder of her husband. She further asked the investigating authorities to provide her with information about the progress of the investigation. 45. On 30 November and 20 December 2005 the investigator ordered further ballistic and trace evidence examinations, in particular asking the experts to compare the pistol found at the scene of the crime with another pistol found in a different murder case. The experts’ reports, dated 15 December 2005 and 19 January 2006, concluded that the pistol found at the scene of the murder of the applicant’s husband had not been used in the commission of the other murder. 46. According to the applicant, she was threatened after her husband’s murder because she said that the domestic authorities had been involved. On an unspecified date in 2006 the applicant left Azerbaijan for Norway, where she was granted asylum. 47. On 4 May 2006 the investigator questioned a cousin of T.X. who resided in Azerbaijan. 48. On 14 November 2006 the investigator again questioned the sister of T.X. who resided in Azerbaijan. 49. On 30 November 2006 the investigator carried out a reconstruction of the murder. In particular, the investigator retraced the path the applicant’s husband had taken from his workplace to where he had been murdered. 50. In September and October 2005, in February, September and November 2006 and in July 2007 the Georgian authorities conducted various investigative actions at the request of their Azerbaijani counterparts. In particular, by a letter of 3 October 2006 the Office of the Prosecutor General of Georgia informed the Azerbaijani authorities that the Georgian prosecuting authorities had questioned T.A., who had used his right to remain silent. In that connection, it appears from the record of the questioning, which took place on 11 September 2006, that T.A. invoked his right to remain silent, stated that he did not consider himself guilty and that he had no confidence in the investigation conducted by the Azerbaijani authorities. The Georgian prosecuting authorities also informed their Azerbaijani counterparts by the same letter that they could not conduct any investigative actions in respect of T.X. as it had not been possible to establish his whereabouts. 51. By a letter of 11 February 2008 the applicant’s Azerbaijani lawyer asked the MNS to provide the applicant with information about the progress of the investigation. In particular, the lawyer pointed out that although three years had elapsed since the institution of criminal proceedings, the applicant had still not been informed about the progress of the investigation or the decisions that had been taken. He further asked the investigating authorities to allow the applicant to familiarise herself with the criminal case file and to provide her with copies of the relevant documents. 52. By a letter of 12 March 2008, signed by the head of the investigation department of the MNS, the MNS informed the lawyer that the applicant had been informed orally about the progress of the investigation. It was further stated that in accordance with Articles 87 and 102 of the Code of Criminal Procedure (see paragraph 61 below) the applicant had the right to familiarise herself with the case file and obtain copies of documents only when the preliminary investigation was over. The letter also said that the Azerbaijani authorities had asked the Georgian authorities to extradite the murderers and were continuing to take the necessary steps to achieve that goal. Lastly, it was noted that members of the investigative group had been sent to Georgia several times and that the investigation was ongoing. 53. On 13 May 2008 the investigator questioned T.B. (see paragraph 24 above) about the whereabouts of T.X. and T.A. It appears from the record of the questioning that T.B. stated that he had not seen them since his release from detention on 19 March 2007 and that he had no information about their whereabouts. 54. By a letter dated 14 June 2008 the National Central Bureau of Interpol informed the head of the investigation department of the MNS that T.X. and T.A. were not registered as being in Russia. 55. On 4 July 2008 the applicant’s Norwegian lawyer and the Norwegian Helsinki Committee wrote to the Prosecutor General’s Office and the MNS asking for the documents relating to the criminal investigation of the murder of the applicant’s husband. 56. By a letter of 18 July 2008 the MNS informed the applicant’s Norwegian lawyer that as he was not a member of the Azerbaijani Bar Association and had failed to submit a notarised power of attorney, he could not obtain copies of the documents. Relying on Articles 87 and 102 of the Code of Criminal Procedure, the letter also stated that a victim or his or her representative could only have access to a case file and the relevant documents following the termination of the preliminary investigation. The letter also informed the applicant’s lawyer that the criminal investigation was still ongoing. 57. On 30 January 2009 the applicant herself wrote to the MNS, reiterating her previous requests. In particular, she asked the investigating authorities to provide her with the documents relating to the investigation, to inform her of the progress of the investigation and of the date when the investigation would end. 58. By a letter dated 17 March 2009 the MNS informed the applicant that her request for access to the case file had been examined. However, in accordance with Articles 87 and 102 of the Code of Criminal Procedure a victim or her representative could only have access to the case file and the relevant documents after the termination of the preliminary investigation. The letter, which was twelve pages long, contained a detailed summary of the investigative steps conducted from the institution of criminal proceedings until March 2009. It stated that the investigation had identified T.X. and T.A. as the perpetrators of the murder and that any information received relating to the possible involvement of various people in the crime had been examined. In that connection, the letter referred to allegations submitted to the investigating authority in August 2006 and August 2007 by people arrested in connection with other criminal cases, as well as information revealed by various journalists and NGO activists in November 2006 and March 2009 about the identity of T.X. and T.A. However, the investigation had not substantiated any of those allegations. The letter also stated that the preliminary investigation was still ongoing and had been extended until 2 September 2009. 59. By a letter of 17 March 2009 the National Central Bureau of Interpol in Azerbaijan informed the head of the investigation department of the MNS that T.A. was living in Tbilisi in Georgia. However, his extradition had been refused by the Georgian authorities on the grounds that he was a Georgian national. The information was based on a letter dated 6 March 2009 from the Georgian National Central Bureau of Interpol to the Azerbaijani National Central Bureau of Interpol. 60. At the time of the most recent communication with the parties on 3 February 2016, when the last observations were filed by the Government, the criminal proceedings were still ongoing. | 1 |
test | 001-184493 | ENG | TUR | COMMITTEE | 2,018 | CASE OF KESKİN v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić | 4. The applicant was born in 1979 and lives in Kayseri. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicant, who was a sergeant in the Army had a traffic accident in 2007 and was declared “disabled” (Adi malül”). 7. On unspecified date, the applicant requested the General Directorate of Pension Fund (the Fund) (“Emekli-Sandığı”) to modify his retirement statute as service-disabled (“vazife malülü”), but the fund rejected that request. 8. On 9 August 2007 the applicant brought an action before the Supreme Military Administrative Court seeking the annulment of the Fund’s decision. 9. On 22 May 2008 the Supreme Military Administrative Court dismissed the applicant’s request. 10. On 11 September 2008 the applicant’s rectification request was rejected. 11. During the proceedings, namely on 12 May 2008 and 29 July 2008 the Public Prosecutor at the Supreme Military Administrative Court filed lengthy written opinions on the case. However these opinions were not communicated to the applicant. | 1 |
test | 001-152250 | ENG | HUN | COMMITTEE | 2,015 | CASE OF NÉMETH v. HUNGARY | 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) | András Sajó;Helen Keller;Robert Spano | 4. The applicant was born in 1966 and lives in Budapest. 5. In March 2003 the applicant brought an action against Budapest IX District Municipality, claiming the release of public information in the context of a real estate dispute. So far the Pest Central District Court, the Budapest Regional Court and the Budapest Court of Appeal have dealt with the case. 6. On 19 March 2011 the examination of the case was suspended, pending the adjudication of a preliminary question in another procedure. This latter case appears to be pending at the appellate level. 7. According to the information available in the case file, the litigation is still pending. | 1 |
test | 001-152693 | ENG | POL | CHAMBER | 2,015 | CASE OF MIERZEJEWSKI v. POLAND | 4 | No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 5. The applicant was born in 1987 and lives in Łomża. 6. On 7 March 2011 he was arrested on suspicion of committing a number of offences connected with handling drugs and psychoactive substances. 7. On 8 March 2011 the Rzeszów District Court (Sąd Rejonowy) remanded the applicant in custody for three months, until 7 June 2011. The court relied on a reasonable suspicion that the applicant had committed offences of serious nature and on the likelihood that a severe penalty would be imposed on him. The court did not share the prosecutor’s view that there was a reasonable risk that the applicant would obstruct the proceedings or that he would go into hiding. At this stage of the proceedings the applicant was not suspected of being a member of an organised criminal group. 8. The applicant’s lawyer appealed against the decision to detain him on remand. 9. On 14 April 2011 the Rzeszów Regional Court (Sąd Okręgowy) upheld the challenged decision. It agreed with the applicant’s lawyer’s view that the applicant had not engaged in any activity that might obstruct the proceedings. It found however that the severe penalty likely to be imposed on the applicant might create a risk that he would attempt to impede the proper conduct of the proceedings. 10. On 2 June 2011 the applicant’s detention on remand was extended by the Rzeszów Regional Court until 7 September 2011. The court referred to the applicant’s previous convictions which made the imposition of a severe penalty on him more probable. It also noted that, taking into consideration the complexity of the case in which 27 persons had already been apprehended, the proceedings had been conducted properly and without undue delays. The trial court had obtained expert witness opinions and it was still necessary to hear further evidence. 11. The applicant appealed and requested to vary the preventive measure applied to him. 12. On 30 June 2011 the Rzeszów Court of Appeal (Sąd Apelacyjny) amended the challenged decision and ordered the applicant’s detention until 31 August 2011. The court agreed with the arguments relied on by the Regional Court. It found however that since the prosecutor had requested that the detention be extended until 31 August 2011, the Regional Court had had no right to extend it beyond that date. 13. On 24 August 2011 the Rzeszów Regional Court again extended the applicant’s detention for a further two months. The court still relied on the reasonable suspicion that the applicant committed the offences with which he had been charged and on the likelihood that a heavy penalty would be imposed on him. The prosecutor who requested extension of the detention relied on, among other things, the reasonable fear that the applicant might obstruct the proceedings. The Court referred to this part of the request and found that there were no grounds which would justify invoking this argument for the extension of the applicant’s detention. 14. The applicant appealed. 15. On 13 September 2011 the Rzeszów Court of Appeal upheld the challenged decision. 16. On 8 September 2011 the charges against the applicant were extended to include participation in an organised criminal group. 17. On 20 October 2011 the Rzeszów Regional Court extended the applicant’s detention until 30 November 2011. The court relied on the grounds previously invoked and, additionally, on the reasonable suspicion that the applicant might tamper with evidence and obstruct the proceedings which was based on the extended charges of being a member of an organised criminal group. The court further stressed that the proceedings had been conducted properly and without undue delays and their duration was attributable to objective reasons, namely the particular complexity of the case and the necessity to obtain evidence as regards organised criminal group consisting of numerous members. 18. On 7 November 2011 a bill of indictment against the applicant and several other coaccused was lodged with the Zamość Regional Court (case no. II K 71/11). The applicant was charged also with being a member of an organised criminal group. 19. On 23 November 2011 the Zamość Regional Court extended the applicant’s detention for three further months, until 29 February 2012. The courts relied on the same grounds as previously. They noted however that the charge of being a member of an organised criminal group justified the extension of the applicant’s detention with an additional reason, namely suspicion that he might obstruct the proceedings. 20. Further extensions of the applicant’s pretrial detention were ordered by the Zamość Regional Court on 24 August and 27 November 2012 and by the Lublin Court of Appeal on 6 March 2013. The Court of Appeal examined the course of the proceedings before the trial court and found that since September 2012 nine hearings had been held, they had been properly planned and each hearing had lasted the whole day. The court concluded that extending the detention beyond the statutory period of two years had proved necessary in view of the objective difficulties in concluding all indispensable activities in time. 21. On 5 June, 28 August and 4 December 2013 the Lublin Court of Appeal granted further extensions of the applicant’s detention. Each time the Court of Appeal examined the conduct of the proceedings, found no undue delays on the part of the trial court and concluded that extension of the detention beyond the statutory time-limit had been justified by the objective necessity of hearing further evidence. 22. The applicant’s lawyer appealed against the decision of 4 December 2013. He claimed that the court had failed to examine whether a less severe measure would be capable of securing the proper conduct of the proceedings. In this respect he referred to the fact that in November 2013 the court had ruled that the three other co-accused could be released on bail. 23. On 18 December 2013 the Lublin Court of Appeal granted the applicant’s lawyer’s request and amended the decision of 4 December finding that the detention could be lifted if a bail of 40,000 Polish zlotys was paid. 24. On 3 January 2014 the bail was paid and the applicant was released from detention. 25. On 14 January 2014 the Zamość Regional Court convicted the applicant and sentenced him to 5 years and 6 months of imprisonment. The charge of being a member of an organised criminal group was confirmed in the first instance judgment. 26. The criminal proceedings against the applicant are pending before the secondinstance court. | 0 |
test | 001-147888 | ENG | HRV | CHAMBER | 2,014 | CASE OF STARČEVIĆ v. CROATIA | 4 | Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 5. The applicant was born in 1974 and lives in Split. 6. On 17 May 2004 the applicant’s father was hit by a car while attempting to cross a motorway. He suffered serious bodily injury and died at the scene. 7. On the same day the Split Police Department (Policijska uprava Splitsko-dalmatinska) interviewed two witnesses and the driver of the car, Z.K. The police also carried out the necessary tests to measure Z.K.’s alcohol level, which showed that he had been intoxicated at the time of the accident. 8. The police informed an investigating judge of the Split County Court (Županijski sud u Splitu) of the accident. Later that day the investigating judge, assisted by a road traffic expert, carried out an on-site inspection. 9. On 18 May 2004 the road traffic expert submitted his report to the investigating judge, finding that in crossing the motorway the applicant’s father had caught the driver of the car by surprise, which had caused the accident. 10. On 19 May 2004 the investigating judge obtained a medical report concerning the applicant’s father, indicating that he had been intoxicated at the time of the accident. 11. Meanwhile, the case file was forwarded to the Split Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Splitu – “the State Attorney’s Office”) for its assessment of the relevant facts. 12. On 18 June 2004 the State Attorney’s Office obtained a medical report confirming that the driver of the car Z.K. had been under the influence of alcohol at the time of the accident. 13. On 20 December 2004 the State Attorney’s Office asked the investigating judge of the Split County Court to open an investigation in respect of Z.K. on suspicion of causing a road accident resulting in death. 14. Before deciding on that request, the investigating judge questioned Z.K. on 19 January 2005. He denied the charges, arguing that when the applicant’s father had crossed the motorway he had been caught by surprise, and had had no way of avoiding the accident. 15. On 7 February 2005 the investigating judge declined to open the investigation on the grounds that there was no reasonable suspicion that a criminal offence had been committed. This was upheld by a three-judge panel of the Split County Court on 22 February 2005. 16. The case file was then returned to the State Attorney’s Office, which was informed of its right to appeal against the decision of the Split County Court. There is no evidence before the Court that the applicant was informed of this decision. 17. The State Attorney’s Office decided not to appeal. There is no evidence before the Court that the applicant was informed of this decision. 18. On 16 June 2006 the applicant inquired with the Split County Court about the progress of the case. He indicated that the last information he had received had been the on-site inspection report. He explained that he had been away for a while, so if any new documents had been forwarded to him it was possible that he had not received them. 19. On 3 July 2006 the investigating judge of the Split County Court informed the applicant that the investigation into the circumstances of his father’s death had been discontinued. 20. On 7 July 2006 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the Split County Court’s decision refusing to open the investigation into the accident. 21. On 19 September 2006 the Supreme Court allowed the applicant’s appeal and ordered the investigation. The Supreme Court held that the Split County Court’s conclusion had been premature, since several crucial facts concerning the accident had remained unanswered. It therefore instructed the investigating judge to question witnesses and to take whatever further investigative measures which were necessary, such as a reconstruction of events. 22. On 16 November 2006 the investigating judge questioned two witnesses and concluded the investigation. He also informed the applicant that he could, if he considered it appropriate, indict Z.K. in the criminal courts on charges of causing a road accident. 23. On 24 November 2006 the applicant, acting as a subsidiary prosecutor and through his lawyer, lodged a request to prosecute with the Split Municipal Court (Općinski sud u Splitu) against Z.K., on charges of causing a road accident resulting in the death of his father, punishable under Article 272 §§ 1 and 3 of the Criminal Code (see paragraph 41 below). 24. The first hearing scheduled for 6 December 2006 before a single judge of the Split Municipal Court was adjourned because the parties failed to appear, as they had not been properly summoned. The trial judge indicated that he would issue another written order for the next hearing. 25. Having received no subsequent summonses, on 21 October 2009, the applicant urged the Split Municipal Court to schedule a hearing, arguing that he had attempted to contact the court several times to ask it to expedite the proceedings. 26. At a hearing held on 3 December 2009 Z.K. pleaded not guilty and the hearing was adjourned. Two witnesses appeared at the hearing but were not questioned. 27. A further hearing scheduled for 15 February 2010 was adjourned because the investigating judge had failed to forward its case file to the Split Municipal Court. 28. At a hearing on 14 April 2010 the single judge of the Split Municipal Court questioned Z.K. again, who reiterated his not guilty plea. The judge also questioned the applicant and the two witnesses. 29. Another hearing was held on 18 June 2010, at which the trial judge questioned Z.K. and the expert witness. 30. On the same day the Split Municipal Court acquitted Z.K. on charges of causing the road accident. 31. The applicant lodged an appeal with the Split County Court, which on 17 May 2011 quashed the first-instance judgment because of the procedural errors in the composition of the trial court. The relevant part of the judgment reads: “... the first instance court did not sit in a proper formation because the trial was held before a single judge instead before a panel composed of a judge and two lay judges. The offence under Article 272 §§ 1 and 3 of the Criminal Code is punishable by imprisonment between one and ten years, and under Article 18 §§ 1 and 2 of the Code of Criminal Procedure for the offences punishable by imprisonment of more than five years, the Municipal Courts must sit in panels composed of a judge and two lay judges. ... It should be also noted that for the offence under Article 272 §§ 1 and 3 of the Criminal Code, that is in issue in the present case, because of the prescribed penalty, the trial should be held according to the rules of ordinary, and not summary, procedure, and that such [ordinary criminal] proceedings can be held only on an indictment, against which the accused has the right to lodge an objection, and not based on a request to prosecute.” 32. In the resumed proceedings, on 15 September 2011 the Split Municipal Court asked the applicant to specify whether he had submitted an indictment (optužnica) or a request to prosecute (optužni prijedlog). The relevant part of the letter reads: “In accordance with Article 269 § 2 of the Code of Criminal Procedure the submission named [request to prosecute] is being returned to the [subsidiary] prosecutor for amendment in accordance with Article 268 § 1 (6) of the Code of Criminal Procedure. That is to say, the subsidiary prosecutor must indicate whether or not his submission is actually an indictment.” 33. The applicant replied on 28 September 2011 indicating that his submission was an indictment rather than a request to prosecute. 34. On 30 November 2011 the Split Municipal Court discontinued the proceedings on the grounds that the applicant’s indictment had not been drafted properly, as it did not contain the statement of reasons on which it was based. The relevant part of this decision reads: “The subsidiary prosecutor on 24 November 2006 submitted a request to prosecute against the accused Z.K. .... Under Article 269 § 2 of the Code of Criminal Procedure such submission, titled request to prosecute, was returned to the [subsidiary] prosecutor for amendment under Article 268 § 1 (6) of the Code of Criminal Procedure. The representative of the subsidiary prosecutor submitted before this court his amendment of the [above-noted document] indicating that the title “request to prosecute” should be changed to “indictment”, and that he had no other amendments. Since the [subsidiary] prosecutor failed to comply with Article 268 § 1 (6) of the Code of Criminal Procedure (’s defence and the prosecutor’s position on the defendant’s defence), this court decided [to discontinue the proceedings].” 35. The applicant lodged an appeal on 9 December 2011 with the Split County Court, contending that he had only been invited to indicate whether he had instituted the proceedings by a request to prosecute or an indictment and that he had replied to that question accordingly. He also pointed out that the courts had accepted his indictment in 2006, conducted the proceedings and decided the case on the merits. Together with the appeal, the applicant submitted an amended indictment containing the statement of reasons. 36. On 17 April 2012 the Split County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the Split Municipal Court. 37. On 16 May 2012 the Split Municipal Court ordered the applicant to pay Z.K.’s legal costs and expenses in the amount of 17,500 Croatian kunas. This decision was upheld by the Split County Court on 11 June 2012. 38. Also on 11 June 2012 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) regarding the manner in which the criminal law mechanisms had been implemented in his case. 39. On 20 September 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the decisions of the lower courts did not concern the applicant’s civil rights or obligations or any criminal charge against him. | 1 |
test | 001-162704 | ENG | MKD | CHAMBER | 2,016 | CASE OF POLETAN AND AZIROVIK v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence) | Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano | 5. The applicants were born in 1968 and 1973 and live in Belgrade (the first applicant) and Skopje (the second applicant). 6. As established in the criminal proceedings described below, on 7 January 2007, during a search carried out by the Macedonian Customs at the Blace border crossing (between the respondent State and Kosovo) 434.555 kg of cocaine were found hidden in rectangular packs submerged in hermetically sealed cans of acrylic paint. The cargo, which had been loaded onto a truck driven by the second applicant in Bar (Montenegro), was destined for Greece. 7. On 7 January 2007 the Criminal Investigations Bureau at the Ministry of the Interior (“the Bureau”, Одделение за криминалистичка техника) carried out an expert examination in order to determine the quantity and quality of the substance found in the truck. On 11 January 2007 the Bureau carried out a further examination. Both reports (TD no. 1/2007 and TD no. 8/2007) established the gross weight of the substance, which was pure cocaine. 8. On 8 January 2007 the public prosecutor requested that an investigating judge from the Skopje Court of First Instance (“the trial court”) open an investigation against the applicants on account of reasonable suspicion of trafficking 438.170 kg of cocaine. In the request it was stated that the drugs had been packed in 389 packages and stored in 68 cans containing acrylic paint. 9. On the same date, the investigating judge heard the second applicant (the first applicant could not be traced) in the presence of Mr D. Dangov, a lawyer of his own choosing (after 11 May 2007 the second applicant was represented by a different lawyer). On this occasion, the second applicant confirmed that he had known the first applicant for many years and that on 29 December 2006 she had contacted him regarding the transportation of acrylic paint from Bar to Greece. She had given him the telephone number of a certain N. (a forwarding agent) in Montenegro regarding the shipment. He had spoken to N. by telephone, but he had not met her. His truck had been searched at Kula border crossing (between Kosovo and Montenegro) and in the city of Pec, Kosovo, after which he had been escorted by police and customs to the border crossing with the respondent State. At around 5 pm. on 6 January 2007 he had arrived at Blace border crossing. The Macedonian customs officials had instructed him to leave the truck overnight and to return the next morning. He had complied with that instruction. On 7 January 2007 the truck had been searched and drugs had been found. The second applicant denied knowing that he had been transporting drugs. 10. Later that day, the investigating judge opened an investigation and issued detention orders for a period of thirty days in respect of the applicants. 11. On 9 January 2007 the first applicant appointed Mr D. Dangov to represent her in the proceedings. On 11 January 2007 the investigating judge issued an international arrest warrant in respect of the first applicant. On 13 January 2007 she was arrested in Serbia and detained pending extradition in the respondent State. 12. On 9 May 2007 the first applicant’s lawyer requested permission to inspect the case file. A handwritten note on his application indicated that “inspection of the case file (wa)s allowed”. On 10 May 2007 the first applicant was incarcerated in Skopje detention facility. An official note drawn up by the investigating judge indicated that on that occasion she had been aware of the public prosecutor’s application and the decision of the investigating judge to open an investigation. 13. On 11 May 2007 the investigating judge heard the first applicant in the presence of her lawyer. She stated that she would make a statement once she was able to consult the available evidence. On 16 May 2007 she was heard for the second time. In the presence of her representative, she confirmed that she had contacted the second applicant, who had agreed to transport the paint from Bar to Greece for 1,100 euros (EUR). She had also given him the contact details of N., the Montenegrin forwarding agent. The first applicant denied that she was aware that drugs had been planted in the cans. 14. On 28 May and 4 June 2007 the first applicant’s lawyer requested permission to consult the case file, arguing that his previous requests had remained unanswered. On each application there was a handwritten note indicating that the requests had been granted. 15. On 21 June 2007 the public prosecutor lodged an indictment against the applicants on account of trafficking 486.705 kg of cocaine (неовластен промет на наркотична дрога-кокаин) packed in 432 packages found in 76 cans. The indictment relied on considerable verbal and material evidence, including the Bureau’s expert reports (see paragraph 7 above). 16. On 26 June 2007 the first applicant’s lawyer requested access to the case file. According to a note, which he duly signed, on 27 and 28 June 2007 he inspected the file for five hours. 17. On 2 July 2007 the first applicant objected to the indictment arguing, inter alia, that she had not been given the opportunity to consult the case file and prepare her defence. On 9 July 2007 a three-judge panel of the trial court dismissed the objection, holding that on 27 and 28 June 2007 the first applicant had inspected the case file. 18. On 10 July 2007 the first applicant’s lawyer requested permission to copy some documents from the case file. According to a handwritten note on the application, his request had been allowed upon payment of the court fees. On 18 July 2007 the court allowed Mr Lj.M., a lawyer whom the first applicant’s mother had in the meantime appointed to represent the first applicant, to consult the case file. 19. At a hearing held on 7 August 2007, the trial court heard the first applicant, who reaffirmed the deposition she had made before the investigating judge (see paragraph 13 above). In addition, she stated that a certain J. (a Greek forename), from Athens, whose surname, residence and all other contact details were unknown to her, had owed her money and had offered to provide her instead with paint from Venezuela. In the second half of 2006 she had imported two containers of paint from Venezuela, the first being shipped to Rieka (Croatia) and the second to Thessaloniki, Greece. She denied having had any contract with the paint producer and exporter in Venezuela or with J. The latter had told her that a certain Sandrina, who allegedly worked with him, could assist her in her dealings with the exporter in Venezuela. J. also had given her the contact details of a buyer in Greece regarding paint from a third container (the subject of the proceedings) and the telephone numbers of N.V. and L.S. in Montenegro, whom she had called regarding the cargo concerned. (When contacting L.S., the first applicant had introduced herself by name as the owner of company M., saying that she was calling upon instructions from a certain Sandra). She reiterated that she had hired the second applicant to transport the paint from Bar to Greece, had handed over the necessary documentation to him, and had provided him with the contact details of N.V. and L.S. in Montenegro. She also confirmed that around that time she had talked with the second applicant many times on the telephone. Lastly, she denied that she had discussed any drugs-related matter with him or any other person. 20. On 8 August 2007 Mr Lj.M. requested a copy of certain material evidence, which was allowed on 9 August 2007. 21. At a hearing on 8 August 2007, the second applicant stated that at the meeting with the first applicant on 29 December 2006, they had agreed that he would transport the paint from Bar to Greece, for which he had been paid EUR 1,100. On 3 January 2007 he had arrived in Bar and had contacted N.V., the Montenegrin forwarding agent, and after the cargo had been loaded onto the truck, he had left for Pec, where the truck had been searched twice using police dogs. The truck had remained at the Pec customs terminal for two nights (the first night the second applicant had remained in the truck; the second night, he had stayed in a nearby hotel). The second applicant had arrived at Blace border crossing at 5 pm. on 6 January 2007 and the truck had remained at customs terminal overnight; the second applicant had spent that night at home and had returned to the terminal at 9 am. next morning. On 7 January 2007 the truck had been searched and the cans had been examined in a special X-ray van. 22. At hearings on 13 and 14 September 2007 held in the presence of the applicants and their representatives, the trial court decided to hear oral evidence from O.B. and N.N., the experts employed in the Bureau who had drawn up the reports of 7 and 11 January 2007 (see paragraph 7 above). It also accepted a request from the public prosecutor that witnesses N.V. and L.S. (who worked at Bar Harbour) from Montenegro produce oral evidence at the next hearing fixed for 16 October 2007 or, if prevented, give evidence before a competent court in Bar (in the latter case, transcripts of their depositions would be read out at the trial). The applicants did not object. The trial court requested that the Ministry of Justice deliver a court summons to N.V. and L.S. for the hearing scheduled for 16 October 2007. It also attached a letter (замолница) requesting the competent court in Bar, Montenegro to examine the witnesses should they be prevented from attending the hearing of 16 October 2007. The letter contained 14 questions formulated by the trial judge which the court in Bar was asked to put to the witnesses. When there was no reply, the trial court reiterated its request in letters dated 2 and 10 October 2007 and sent to the Ministry of Justice. 23. On 10 October 2007 an investigating judge from the Podgorica District Court examined N.V. The relevant parts of the court record of her examination read as follows: “... I remember that around New Year’s Eve 2007, L.S ‒ who works at Bar Harbour ‒ called in order to ask me to send a container to Belgrade for a friend of hers ... L.S. gave my telephone number to certain Sandra. Sandra called me and introduced herself as working for (the first applicant’s) company. She asked me to prepare documentation so that the container would be transported to Greece, to Thessaloniki instead of to Belgrade ... I do not know [the applicants]. I did not see [the second applicant] when he arrived in Bar. I just sat in the office and spoke by telephone and I knew about him because he called to tell me that he would come to the office to provide some documentation for the goods, which he did not give to me, but to my colleague N.K. ...” 24. On 12 October 2007 the Montenegrin Ministry of Justice forwarded the transcript of N.V.’s statement to the Ministry of Justice of the respondent State. 25. On 15 October 2007 the investigating judge of Podgorica District Court examined L.S. The relevant parts of her statement (which was sent on the same day to the Ministry of Justice of the respondent State) read as follows: “... on 22 December 2006 I received a telephone call from N.P. (from Greece) ... in order to give him the contact details of a person working for a company, M.S., that handled containers ... I called N.[V.] and told her that a friend had asked me for information regarding this matter ... Half an hour after this discussion with N.[V.], I received a telephone call from certain Sandrina ... who told me that the container belonged to her and that it should not go to Belgrade, but to Greece, so she needed a forwarding agent ... on 26 December 2006 I travelled to Bologna, Italy ... While I was in Bologna, I received a telephone call from a man who spoke English and who introduced himself as P. (a Greek name) ... telling me that the container which needed to be taken to Bar belonged to him ... on 3 January 2007 a man who introduced himself as Alija called me and said that he was a driver and that he had come in order to collect the goods in that container ... I called N.V. and told her that the driver had arrived. N.[V.] told me that the driver should go to the car park at Bar Harbour. When Alija called me, I told him what N.V. had said and gave him her number ... on 6 or 7 January 2006 P. called again and told me that the driver needed some documents ... I stress that I had nothing to do with the transportation or contents of that container, nor I could envisage what was inside. Later, I heard on the media that it concerned a shipment of paint and the documents that I saw referred to some paint ... I did not see or speak with [the applicants] ... I do not know if (the man called) Alija whom I mentioned as a driver in this story is [the second applicant] about whom you ask me ...” 26. Both witnesses gave their evidence under oath and were warned of the consequences of false testimony. 27. On 16 October 2007, in the presence of the applicants and their representatives, the court heard evidence from the experts O.B. and S.K., a superior expert in the Bureau who had also been involved in drawing up the expert reports (TD no. 1/07 and TD no. 8/07). The expert N.N. could not attend the hearing since she had gone on a business trip to France. Both experts were warned about legal consequences of false testimony. S.K. stated, inter alia, that: “... the cocaine examined is pure cocaine ... the net weight ... was not established. ... after cocaine had been discovered, I went with my colleague O.B. to the Blace border crossing in order to carry out an initial examination so as to determine what was involved. The drugs were brought to our laboratory ... At Blace border crossing, (we) cut open the packages and took a small quantity ... which was sufficient to determine the nature of the substance ... that happened at the border crossing, where several packages were opened; that is a standard procedure ... In the laboratory, the packages were brought in, as far as I remember, in paper bags, but I’m not sure. On 7 January 2007 ... the drugs were brought (into the laboratory) ... It was about 1 pm. ... On 8 January 2007 43 packages were brought into the laboratory. For a larger quantity of drugs, in principle, (we apply) the UNDCP recommendations ... In the present case, we examined the square root of the total number (of packages) which was in compliance with these recommendations. Of the additional 43 packages, we examined every third package because it concerned a smaller quantity compared to packages received on 7 January 2007 ... The laboratory is accredited by UNDP for drug analysis and is regarded as reliable. The laboratory is not accredited for ISSO standards. [The latter] is a formal issue and it concerns a long and expensive procedure, but [that] does not mean that in terms of technique, equipment and means of work, there are any shortcomings ... The cocaine we analysed is the biggest quantity so far examined ... As provided for in the UNDCP recommendations, if (there are no more than) 10 packages, then all (the packages) are examined; if (there are) up to 100 packages, then every tenth package is examined; if (there are) more than 100 packages, the quantity to be analysed is the number calculated to be a square root of all the packages ...” 28. The expert O.B. stated, inter alia, that: “... When preparing the expert report, all packages had been analysed using colour tests; 20 packages, which were randomly selected from the total of 389 packages in accordance with the UNDCP recommendations, were analysed by means of ... (methods of analysis) ... The packages were brought into the laboratory for examination in 39 black plastic bags ... When we arrived at Blace border crossing, the packages were lined up at the roadside; they were covered with polycolor; we took samples for analysis from several packages ...” 29. The applicants objected to both the experts’ statements and the expert reports, arguing that they had been drawn up by the Ministry of the Interior, the same body that had instituted the proceedings against them. 30. The hearing continued on 17 October 2007 when “an employee from the court archives department entered (the court room)” and handed the trial judge the transcripts of the statements N.V. and L.S. had given before the Podgorica District Court (see paragraphs 23 and 25 above), translated into Macedonian. The trial judge noted that N.V. and L.S. had been prevented from attending the scheduled hearing due to “other obligations” and “a trip to Italy” respectively. Therefore, she proceeded to read out the witnesses’ statements. She also ordered that the Bureau supplement the expert reports TD 1/2007 and TD 8/2007 with information regarding the drug’s net weight (дополнување на вештачењето). 31. On 2 November 2007, outside the hearing (вон рочиште), the trial court ordered the Bureau to draw up a fresh expert report regarding the quality and quantity of the substance found in the cans. The order was communicated to the parties. 32. On 9 November 2007 S.K. and O.B., the experts employed by the Bureau, drew up a fresh expert report (no. 1399/07), the relevant parts of which read as follows: “In order to determine the nature of the substance and in accordance with the recommendations of ENFSI (European Network of Forensic Sciences Institutes) and UNDCP (United Nations Drug Control Program) regarding the analysis of multiple samples, 27 randomly-chosen packages ... were analysed ... out of the total number of packages (432) ... The net weight of the material taken from the analysed packages was 27.30 kilos ... On the basis of the analysis made, it is confirmed that the analysed material taken from the packages was cocaine. This confirms the earlier findings ... specified in the expert reports nos.1/07 and 8/07 of 7 and 11 January 2007, respectively. The total net weight of seized packages (432) was established (on the basis of ENFSI recommendations) by means of a mathematical and statistical methodology ... On the basis of the calculations done, it is concluded that the total net weight of the substance (found) in the packages was 436.879 kg ± 2.324 kg.” 33. Expert report no. 1399/07 was presented at a hearing dated 15 November 2007 in the presence of the applicants and their representatives. Evidence from the experts S.K. and O.B. was also heard. S.K. stated, inter alia, that: “... [the Bureau] is the only accredited and reliable laboratory in the Republic of Macedonia competent to analyse seized drugs. We are authorised by UNDCP and we apply its recommendations ... Since 1997, when we started work, the central laboratory in Vienna has never voiced any complaints about our analyses ... In the present case, which concerned more than 100 packages, namely 432, after we had determined the square root of 432, which is 20.78, we analysed 21 packages, which were chosen at random. I stress that these 21 packages were analysed fully using all the methods specified in the recommendations. That does not mean that some of the packages were not analysed at all. Regarding expert reports nos.1/07 and 8/07, all 432 packages were analysed using so-called speedy methods in order to determine the substance. Then, certain packages that were randomly chosen and were fully analysed using all methods ... Asked by the judge whether in the preparation of the expert report commissioned by the court the expert had received any instructions from anyone, including their superior, she replied: ‘I drew up the expert report commissioned by the court, as well as the earlier reports, in good faith and according to my best knowledge. [The Bureau] operates within the Ministry of the Interior, but it is independent in its work. In my career, no superior has ever influenced any expert examination nor would I accept anything of that kind ...’” 34. O.B. concurred with S.K. The applicants did not object to the expert report and the experts’ statements but they complained that a prosecuting body, such as the Ministry of the Interior was in this case, could not carry out an expert examination of the substance, which anyway should have been examined in its entirety (the results could not be based on an analysis carried out on randomly chosen samples). The applicants contested S.K.’s argument that the Bureau was independent and was the only accredited laboratory for such an examination. In this connection they requested that the court commission an alternative expert report by an independent expert body, national or foreign. 35. As to the applicants’ objections regarding the expert evidence, the trial court stated: “... [The applicants’] request for an alternative expert examination of the quality and quantity of seized packages by an independent institution is not allowed since the expert evidence adduced by the court was produced by the Ministry of the Interior; in accordance with the Criminal Proceedings Act, an expert report may be drawn up by a State body; in more complex cases, such as the present one, such expert examination is entrusted, in principle, to a State body. Expert report no. 1399/07 of 9 November 2007 was drawn up by [the Bureau] on the basis of a prior court order. The request ... for a complete analysis of all seized packages is refused since ... some of the packages had been handed over to the experts (for examination), as provided for in the UNDCP and ENFSI recommendations ...” 36. On 16 November 2007 the trial court accepted the applicants’ request for an on-site inspection of the (27) packages (kept in a special department of the trial court) examined by the Bureau’s experts and the subject matter of expert report no. 1399/07. The inspection was carried out in the presence of the applicants and their representatives. As indicated in the court record of that date, there were three paper bags. In each bag there were nine packages containing white powder (бела прашкаста материја). Since “some packages ... were of dimmer and (others) of brighter white colour (со нијанси на потемна и посветла боја)”, the applicants’ representatives argued that “the drugs were not of the same quality, that is to say of the same pureness.” 37. At a hearing dated 27 November 2007, the parties presented their concluding remarks. The public prosecutor specified the indicted offence, accusing the applicants of having participated, as a group, in the unauthorised transportation of 434.555 kg of cocaine. The applicants’ lawyers reiterated that the expert evidence had been produced by the Bureau, which had operated within the Ministry of the Interior, as a prosecuting body and that the third expert report that had been commissioned by the court had been of no relevance since it had been produced by the same experts who had been involved in the earlier expert examinations. They also complained that the expert evidence admitted had been inconsistent regarding the quantity of drugs seized (see paragraphs 8 and 15 above) and the type of paint in which the packages had been submerged (see paragraph 28 above). Furthermore, according to this evidence, the substance found had been pure cocaine, which, according to them, was impossible. They also contested that the statements of the witnesses (N.V. and L.S.) examined in Montenegro had been obtained in violation of their defence rights. 38. On 30 November 2007 the trial court delivered a judgment in which it found the applicants guilty of drug trafficking, an offence punishable under Article 215(2) in conjunction with sub-paragraph 1 of the Criminal Code (see paragraph 53 below) and sentenced them to 14 years and six months’ imprisonment. The operative part of the judgment read as follows: “... on an unspecified date before the end of December 2006, [the applicants] (acting) as a group (како повеќе лица), were participants in the unauthorised transportation of a shipment of narcotic drugs – cocaine (неовластено пренесување на наркотична дрога-кокаин). After [the first applicant] had contacted persons of unknown identity who intended to transport drugs from Venezuela, (she) had agreed with them to transfer the drugs to the Republic of Greece ... on 29 December 2006 (she) contacted [the second applicant] in order to arrange with him the transport of the drugs from [Montenegro] to [Greece] ... paid him EUR 1,100 [and provided him with the necessary supporting documentation]. On 2 January 2007 [the second applicant] drove a truck ... to [Montenegro]. On 4 January 2007, 882 plastic cans of acrylic paint were loaded onto [the truck]. Cocaine was planted in some of them ... [He] drove through Kosovo towards the Republic of Macedonia and the Republic of Greece ... At around 5 p.m. on 6 January 2007 he arrived at the Blace border crossing (on the Macedonia-Kosovo border). On the morning of 7 January 2007, during a routine inspection by Customs, which continued on 8 January 2007, 432 packages of cocaine were discovered in 76 cans containing acrylic paint. The total weight of the drugs was 434.555 kg.” 39. The judgment, which runs to fifty-five pages, was based on the following evidence: the applicants’ statements; statements from four witnesses for the second applicant (including his wife and father, who confirmed that he had spent the night 6 January 2007 at home and had returned the next morning to Blace customs terminal); statements from three customs officials who searched the truck at the customs terminal; the statements given by the experts S.K. and O.B.; the statements of witnesses L.S. and N.V. who were questioned by the investigating judge of the Podgorica District Court; and a considerable amount of material evidence, including expert reports nos. 1/07, 8/07 and 1399/07, and a detailed list of calls made from the applicants’ mobile phones. 40. In addition to the facts indicated above (see paragraph 6 above), the trial court also established that the second applicant had arrived in Bar on 3 January 2007; that he had called N.V. regarding the shipment; that on 4 January 2007 the cans had been loaded onto his truck and he had left for Kosovo; that he had spent the night of 4 January in the truck at Pec customs terminal; that on 5 January 2007 the truck had been searched (using police dogs) at that terminal; that on the night of 5 January the truck had remained at the terminal and the second applicant had spent the night in a hotel; that he had returned to the terminal on 6 January; and that at 2 pm. that day he had left, escorted by Kosovo customs, for the Blace border crossing, where he had arrived at around 5 pm. on 6 January 2007. The truck had remained at the customs terminal overnight and the second applicant had spent the night at home. At 8.45 am. on 7 January 2007 he had come back to the terminal, where the truck had been searched and drugs had been found with the assistance of an X-ray van. On the basis of a detailed list of telephone calls, the court established that there had been intense communication between the applicants between 20 December 2006 and 10 January 2007 (the first applicant had called the second applicant 124 times, and he had called her 28 times), and that they had telephoned N.V. and L.S. Furthermore, the Greek company specified in the freight documentation as the recipient of the paint did not exist according to Greek official records. 41. The court referred to the expert reports and considered the experts’ statements (see paragraphs 33 and 34 above) on the basis of which it established the relevant facts regarding the quality and quantity of the drugs found. It further reiterated the reasons for which it had refused the applicants’ requests for an alternative expert examination (see paragraph 35 above). 42. The trial court presented an outline of the statements made by L.S. and N.V. and stated, inter alia, that: “... The court fully accepts the statements of witnesses N.V. and L.S.... The statements of these witnesses were obtained on the basis of a request (addressed to the Montenegro’s authorities) (по пат на замолница) issued after a prior decision made on record at the trial. The parties and [the applicants’] representatives had no comment (about that decision) [nor] had they voiced any objection when these statements were read at the trial. They did not make any suggestions regarding these statements ...” 43. As to the second applicant, the trial court stated, inter alia, that: “... The court assessed [the second applicant’s] defence that he had not entered into an agreement with [the first applicant] to transport drugs ..., but rather that the agreement concerned the transportation of acrylic paint ... that drugs had never been mentioned in their discussions, that the freight documents referred only to acrylic paint ... that during the transport, he had spoken about 5 times by telephone with [the first applicant]. The court did not accept the defence of the accused since it was contrary to his actions and the admitted evidence in support of the indictment ... [The second applicant] does not deny that by having transported the paint, he also transported the cocaine ... The court cannot accept [his] defence that he did not know that there was cocaine in the cans because it is not supported by any evidence and it is contrary to his actions ‒ he transported the drugs from Bar to the Macedonian border and (contrary) to admitted evidence – cocaine found in the cans, which was noted in the certificate of temporary seized objects ... signed by [the second applicant] who did not contest the signature and the confiscation of the cocaine at any stage of the proceedings ...” 44. The applicants appealed against the trial court’s judgment. They reiterated that the experts had not been independent (given that the Bureau had operated within the Central Police Forces Unit) and in this respect they referred to the Court’s judgment in the Stoimenov case (see Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, 5 April 2007). The first applicant further alleged that the trial court had refused her request for an alternative expert examination, notwithstanding that the Forensic Institute (Институт за Судска Медицина was also authorised to conduct such an analysis, that the trial court had not explained the discrepancy between the gross and net weight of the drugs found, and that the court had accepted that the packages containing the drugs had been submerged in acrylic paint, which contradicted the experts’ findings regarding the type of the paint involved (see paragraph 28 above). She also complained that she had not been allowed to consult the case file during the investigation, which had affected her ability effectively to prepare her defence. Furthermore, her defence rights had been unjustifiably restricted since she had not been given the opportunity to attend the examination of witnesses L.S. and N.V. before Podgorica District Court. In this respect she alleged that she had not been informed of the questions put to these witnesses by the trial court. The second applicant complained that there had been no evidence that he had concluded an agreement (with the first applicant) and, in particular, that he had known that he was transporting drugs. In the absence of any evidence confirming his intention to transport drugs, no criminal liability could be attributed to him. 45. On 18 April 2008 the Skopje Court of Appeal held a public session at which, in presence of the applicants and their representatives, it dismissed the appeals and upheld the trial court’s judgment. As to the first applicant’s complaint concerning the requests she had made in the pre-trial proceedings to consult the case file, the court stated: “... On 11 May 2007 [the first applicant], in the presence of her lawyer, was informed about the charges against her ... (and) that she was not obliged to answer the questions and present her defence, but she stated that she would give a statement in any case after the available evidence had been presented to her ... On 16 May 2007 she gave a statement in the presence of her representative; the questioning continued on 18 May 2007. [On both the occasions] on which she gave a statement before the investigating judge, she had had the time and the facilities to prepare her defence and the possibility of communicating with her legal representative ... Under section 126 of the Criminal Proceedings Act, the accused is entitled to consult the case file and ... the evidence after being questioned. In the present case ... it is clear that the trial court did not violate the accused’s right of defence ... ... regarding the alleged violation of section 126 of the Criminal Proceedings Act ... it is evident that after the investigating judge had questioned [the first applicant] ... [she] gave a detailed statement which was duly noted in the court record and which she had read and signed ... ... The lawyer requested and was given access to the file before he objected to the indictment ... Moreover, the trial court established all the relevant facts at the trial ... ” 46. As regards the expert evidence, the court established that all the expert reports admitted as evidence had confirmed that the substance found in the cans had been cocaine; in the statement of 15 November 2007, S.K. had confirmed that all 432 packages had been examined using so-called “speedy methods” and randomly-chosen packages had then been fully analysed; the quantity of the drugs had been established on the basis of ENFSI recommendations. The court further dismissed the applicants’ complaints about the alleged lack of independence of the experts, finding that the expert examination (no. 1399/07) had been ordered by the court, that the expert findings had not been called into doubt, and that they had been confirmed at the hearing by the experts, who had been warned about the consequences of false testimony. Lastly, the court held that a copy of expert report no. 1399/07 had been served on the applicants and they had been provided with a reasonable opportunity to challenge it. 47. As regards the witness evidence produced by L.S. and N.V. in Montenegro, the court held that they had been heard in response to the request by the trial court made at the hearing dated 14 September 2007; the applicants and their representatives, who had attended that hearing, had not objected, nor had they sought to attend the questioning of these witnesses; the witnesses’ statements had been read out at the trial and the applicants had not objected to them. The court concluded that this evidence had therefore been accordingly lawfully obtained. 48. As to the second applicant’s complaint that he had not known that he was transporting drugs, the court stated: “... such an allegation is contrary to the established facts based on admitted evidence concerning the actions taken by [the second applicant] and his criminal liability ... the court does not accept [his] allegations because on the basis of all evidence admitted at the trial, [the trial] court correctly established the relevant facts concerning the actions taken by [the second applicant] ... (these) allegations were assessed by [the trial] court ... (which) gave reasonable grounds why it did not give credence to them ... it was established beyond any doubt that drugs ‒ cocaine ‒ had been found in some paint-cans transported by the vehicle driven by [the second applicant].” 49. The court further noted that: “... the large quantity of drugs, the way they were procured and transported, and the actions taken by the accused, suggest that the cocaine was transported for the purpose of selling it and not for any other purpose ... On the basis of the admitted evidence, the analysis and assessment thereof, (and) the accused’s behaviour before they reached agreement concerning the shipment, the fact that they communicated between themselves, during the shipment, that is to say before, during and after the crime ... it can be concluded that the accused knew and were aware of their actions, including the crime that they had committed ... In this connection, according to this court, there is no logical economic reason to import acrylic paint from Venezuela, given the fact that transport costs from Venezuela to the (final) destination ... would be higher than its value. It can be inferred from this that the accused knew that it was about the transportation of drugs and not of acrylic paint. Having also in mind the intensity of contacts between the accused, and the contacts with the witnesses L.S. and N.V. in Bar, ... together with the fact that [the first applicant] provided [the second applicant] with written documentation ... issued by her company M., stipulating that the cargo should be transported to the Republic of Greece to company S. ‒ which, on the basis of the available evidence, does not exist ‒ it becomes clear that [the applicants] knew and were aware of their unlawful actions and the crime committed ...” 50. The applicants lodged requests before the Supreme Court for extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда). They reiterated the allegations of violation of their defence rights, in particular, concerning the expert evidence, examination of witnesses L.S. and N.V. and lack of reasoning. In this latter context the second applicant reiterated that there had been no evidence showing that he had known that he was transporting drugs hidden in hermetically closed cans. His telephone contacts with the first applicant and N.V. and the court’s conclusion regarding the economic rationale for importing paint from Venezuela were not conclusive given the fact that he was the driver whom the first applicant had engaged to transport the paint from Bar to Greece. The first applicant complained that it had not been established (or indicated in the operative part of the trial court’s judgment) that the drugs had been transported for the purpose of selling them. She also complained that her defence rights had been violated in the investigation. 51. On 20 October 2009 the Supreme Court upheld the established facts and dismissed the applicants’ requests for the same reasons given by the Skopje Court of Appeal. In this connection it stated, inter alia, that: “On the basis of all admitted evidence, the intensity of telephone contacts between the accused, as well as contacts with witnesses L.S. and N.V., the accused’s behaviour before they reached agreement concerning the shipment, the intensive and multiple contacts between themselves during the shipment, when the crime had been committed and after it had been discovered, the trial court correctly concluded that the accused knew and were aware of their actions regarding the unlawful transport of drugs.” 52. The Supreme Court further added: “... As to the allegations raised in the requests that the expression “for the purpose of selling (заради продажба)” is missing from the operative part of the trial court’s judgment, the court considers that (this omission) does not render it defective, since that can be presumed (произлегува) in view of the actions undertaken by [the applicants] when committing the criminal offence ... From the description of [the applicants’] actions there is no doubt that drugs were transported for the purpose of selling and that such a large quantity of drugs, namely pure cocaine, cannot be for [the applicants’] personal use. Even more, it endangers the life and health of millions of people on the planet.” | 0 |
test | 001-174404 | ENG | ISL | CHAMBER | 2,017 | CASE OF ARNARSON v. ICELAND | 4 | No violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression) | Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström | 5. The applicant was born in 1963 and lives in Garðabær. At the material time, the applicant was a journalist and a freelance writer for the web-based media site Pressan. 6. The Federation of Icelandic Fishing Vessel Owners (hereafter “the LIU”) represented fishing vessel owners in Iceland and safeguarded their common economic, financial, legal, technical and social interests. 7. The applicant claimed that a private website, B, was publishing anonymous blogs, constantly lobbying for the LIU and discrediting persons who spoke against it. 8. On 21 July 2010 a newspaper, DV, published an article regarding rumours that the LIU was providing financial support to website B. It was alleged that this support amounted to 1,500,000 Icelandic Krónur (ISK) each month. In the article, no mention was made of the LIU’s chief executive office (hereafter “A”). 9. On the same day the applicant published an article on Pressan under the headline “LIU pays 20 million for offensive material” and referred to the article in DV. A sent a short statement to Pressan submitting that the LIU had not supported website B. The statement was published on Pressan on 23 July 2010. 10. On 24 July 2010 the applicant published an article on Pressan where he responded to A’s statement. The article stated that A had to do better than just denying that direct payments had been made to website B and that the LIU, directed by A, was accountable for the offensive material published anonymously on website B. Furthermore, the applicant called into question whether or not the respectable representatives of the LIU’s member companies had agreed to the organisation’s funds being paid through intermediaries to gossips such as the owners of website B. 11. On 26 July 2011 the applicant published a third article on the matter on Pressan. The article stated that the LIU supposedly supported website B with ISK 20 million annually through companies owned by [Mr Y], who was also the owner of website B. Furthermore, the article stated that the applicant knew that not all LIU board members were aware of the organisation’s support for the offensive material on website B since the payments were well-disguised in the organisation’s financial records. 12. Moreover, it stated that the applicant had been told that it was possible that none of the LIU’s board members knew about the organisation’s millions being used to support anonymous slander on website B and that A alone had decided to use the funds in this way. The applicant added that he had not received confirmation of the last statement. A picture of A appeared beside the text of the article. 13. On 28 December 2011 A lodged defamation proceedings against the applicant before the Reykjaness District Court and requested that the following statements be declared null and void: “A. The LIU, directed by [A], is left accountable for the offensive material that is published anonymously on the gossip [website B] B. Then there is the question of whether respectable representatives of the LIU’s member companies would accept that the organisation’s funds are being paid through intermediaries to gossips such as the owners of [website B] C. The LIU supposedly supports [website B] with almost ISK 20 million annually through companies owned by [Mr Y] D. I know that some of the LIU’s board members are not aware of the support for the offensive material on [website B], because the payments are well-disguised in the organisation’s financial statements. I have been told that it is possible that no LIU board members know that the organisation’s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation’s funds in this way.” 14. By judgment of 29 November 2012 the District Court found that only one of the statements, namely that under item D above, had been defamatory and ordered the applicant to pay A ISK 300,000 (approximately 2,500 euros (EUR)) in nonpecuniary damages under the Tort Liability Act, plus interest, and ISK 450,000 (approximately 3,750 EUR) for A’s costs before the District Court. It declared the statement null and void. 15. The judgment contained the following reasons: “... [A] is the chief executive officer of the Federation of Icelandic Fishing Vessel Owners or LIU, as the Federation is called in everyday speech, and he has held the job for almost 12 years. Part of his job is, inter alia, to participate in public debate on maritime affairs and to express the views and policies of the LIU. ... In recent years there has been extensive debate on the advantages and flaws of the current fisheries management system. There are different views on this system in society, and it is of great concern, as the fishing industry is one of the fundamental and most important industries of this country. [A] has, because of his occupation, appeared publicly on behalf of the LIU and advocated the organisation’s views. The defendant, who writes on a regular basis about various social matters, has discussed the fisheries management system though his writings and criticised certain aspects of it. ... According to Article 73(1) of the Constitution no. 33/1944 everyone has the right to freedom of opinion and belief. Article 73(2) of the Constitution states that everyone shall be free to express his thoughts, but shall also be liable to answer for them in court. The law may never provide for censorship or other similar limitations to freedom of expression. Article 73(3) of the Constitution states that freedom of expression may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in agreement with democratic traditions. Article 10 of the European Convention on Human Rights and Fundamental Freedoms contains an equivalent provision, cf. Act no 62/1994 on the European Convention on Human Rights and Fundamental Freedoms. Therefore, the present case concerns balancing the fundamental provisions on freedom of expression and the right to respect for private life. ... In the court’s view the following statement applies directly to [A]: “I know that some of the LIU board members are not aware of the financial support for the offensive writings on [website B], because the payments are well-disguised in the organisation’s financial statements. I have been told that it is possible that no members of the LIU board know that the organisation’s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation’s funds this way”. [The applicant] does not maintain that this does not apply directly to [A], his plea for acquittal is based on the fact that the statement does not imply that [A] has committed a criminal offence; furthermore he claims that this is not something he maintains, since he pointed out [in the article] that he was not able to confirm that statement. The evaluation of whether or not the statement includes an accusation of a criminal act or is defamatory will not be based on how [the applicant] understands it but on how readers are expected to perceive and interpret it. The claim that the payments to [website B] have been disguised in the organisation’s financial statements seems to imply that [A], who is responsible for the LIU’s financial accounts as the CEO of the organisation, condones accounting deception to hide the alleged support to [website B]. [The applicant] cannot prove the statement so it is considered not to be proved. The court considers that the second part of the statement, “I have been told that it is possible that no LIU board members know that the organisation’s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation’s funds in this way”, can be understood as an insinuation of fraud by abuse of position [umboðssvik] and negligence at work as it implies that [A] allocated LIU funds against the board’s will and without authorisation. [The applicant] has not shown that the statement is true, for this he carries the burden of proof. The aforementioned statement is considered to be defamatory for [A] and likely to damage his reputation and honour. In accordance with the aforementioned, and with reference to Article 241(1) of the Penal Code no. 19/1940, the statement is declared null and void.” 16. The applicant sought leave to appeal to the Supreme Court, which was refused on 25 February 2013. | 0 |
test | 001-168637 | ENG | NOR | ADMISSIBILITY | 2,016 | T.S. AND J..J. v. NORWAY | 4 | Inadmissible | André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary | 1. The first applicant, T.S., is a Polish national who was born in 1949 and lives in Warsaw. The second applicant, J.J., is a Polish national who was born in 1971 and lives in Sandnes. The applicants were represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw. 2 3. The first applicant is the maternal grandmother of X, a boy born in 2003 and who lives in Norway. The second applicant is X’s father. The second applicant moved to Norway in 2006 and X and his mother, also Polish, followed in September 2007. The parents separated in 2010, after which X stayed with his mother. In April 2011, X’s mother died. The second applicant was given custody of X. 4. On 23 June 2011 X was taken into public care on an interim basis by decision of Sandnes Child Care Protection Services (barneverntjenesten), because the second applicant could not take care of him. The measure became permanent on 8 December 2011 by decision of Sandnes County Social Affairs Board (fylkesnemnda for barnevern og sosiale saker) and as the second applicant lacked ability to care for X, he was placed with a foster family. The second applicant kept parental responsibility for X and had contact rights for four hours per month with him. 5. X was born prematurely and has special needs. He was born with periventricular bleedings, his motor skills are delayed and he has complex visual impairments. His condition is characterised by early traumas tied to domestic violence and alcohol abuse. 6. The first applicant had good contact with X until he was four years old and moved to Norway. After that they talked on the telephone once or twice per week. Up until the death of his mother, X visited the first applicant in Poland regularly. After the public care decision, the first applicant visited X in Norway three times between 2011 and 2013. 7. X’s foster family is not Polish-speaking and X is fluent in Norwegian, although he has received Polish lessons at his school as part of his native language education. X has not wished to take any extra-curricular Polish lessons. According to a report issued by the Child Care Protection Services on 30 November 2012, X’s foster parents proposed to X that he might participate in activities at a Catholic church, as his mother was a Catholic. However, X showed no interest in such activities. 8. In September 2012 the first applicant requested regulated contact rights from the Norwegian authorities. By decision of 4 April 2013, Rogaland County Social Affairs Board (henceforth “the Board”) granted the first applicant contact rights with X during two periods per year. Each period consisted of three visits, with every visit being up to three hours long. The visits were to be supervised if needed. X was heard through a contact person, who gave testimony at the oral hearing. X expressed his desire to meet the first applicant twice per year, although not in Poland, and with the presence of another adult. The Board stressed the importance of contact between X and the first applicant while, at the same time, observing that X had negative reactions, consisting of stomach pain and diarrhoea, before and after visits by the first applicant. X had also objected to further visits by the first applicant at his foster home. With regard to visits in Poland, the Board considered that it was a long journey and that X had special needs. He had also objected to going there for visits. Finally, the Board stressed that the Child Care Protection Services could allow more extended visits if such measures were in the best interests of the child. The Board held an oral hearing and the first applicant was represented by a lawyer. 9. The first applicant appealed against the Board’s decision and demanded extended contact rights in order to avoid X reacting negatively during visits. 10. By judgment of 8 September 2014, Jæren City Court (tingrett) limited the first applicant’s contact rights to four hours, twice per year. The first applicant was heard at the oral hearing, along with five witnesses. One of the witnesses had been representing X before the Board and she had talked to X before the oral hearing so that he could have his say. X stated that he did not want to have a lot of contact with the first applicant, but agreed to meet once per year. 11. The court found it established that the relationship between the first applicant and X had been harmed because the first applicant had criticised and discredited X’s foster family. She had also criticised X for being too thin, for not speaking better Polish and for religious matters. Finally, she wanted to forbid X to do physical exercise such as playing football, although X liked this and was fit for it, according to medical certificates. The court noted that the contact rights could increase in the future if the relationship between the first applicant and X improved. Also, the Child Care Protection Services had offered the first applicant advice on how visits should be carried out. Despite the advice offered, the first applicant had not adapted her behaviour so that the visits would become positive experiences for X. Moreover, the first applicant had been given special counseling twice during two hours. Although the results had improved, the Court had the impression of the first applicant that she was not that easily guided. 12. Regarding X’s Polish identity, the court agreed with the first applicant that she could play an important part in preserving that identity. However, X’s right to identity, language and culture did not, in the court’s opinion, override the consideration for the best interests of the child. The court agreed with the Board that it was necessary to allow the Child Care Protection Services to supervise the visits in order to prevent the first applicant from saying harmful things to X. 13. Upon appeal by the first applicant, on 20 November 2014, Gulating High Court (lagmannsrett) refused leave to appeal on the ground that the City Court’s judgment was well-reasoned and that nothing in the appeal indicated that the High Court would make a different assessment from that of the lower court. 14. On 23 January 2015 the Supreme Court (Høyesterett) refused leave to appeal. 15. According to Section 4-1(1) of the 1992 Child Welfare Act (lov om barneverntjenester) decisive weight shall be given to the best interests of the child while deciding on measures under the Act. 16. Section 4-19(4) of the Act provides as follows: “The child’s relatives, or other persons to whom the child is closely attached, may demand that the county social welfare board determine whether they shall be entitled to access to the child and the extent of such right of access when a) one or both of the parents is/are dead, or b) the county social welfare board has decided that one or both parents shall not be entitled to access to the child or that the parents’ right of access shall be very limited.” 17. It follows from Section 6-3(1) of the Act that a child who has obtained the age of seven shall be informed and be given the opportunity to have his or her say in the matter before any decision is taken. The views of the child shall be given due weight in accordance with the age and maturity of the child. 18. The Convention on the Rights of the Child contains, in so far as relevant, the following provisions: Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. “ Article 8 “1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.” Article 12 “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” | 0 |
test | 001-140005 | ENG | GBR | CHAMBER | 2,014 | CASE OF JONES AND OTHERS v. THE UNITED KINGDOM | 1 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court) | George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Phillips of Worth Matravers;Vincent A. De Gaetano;Zdravka Kalaydjieva | 7. On 15 March 2001, while he was living and working in the Kingdom of Saudi Arabia, Mr Jones was slightly injured when a bomb exploded outside a bookshop in Riyadh. He alleges that the following day he was taken from hospital by agents of Saudi Arabia and unlawfully detained for sixty-seven days. During that time he was tortured by a Lieutenant Colonel Abdul Aziz. In particular, he alleges he was beaten with a cane on his palms, feet, arms and legs; slapped and punched in the face; suspended for prolonged periods by his arms; shackled at his ankles; subjected to sleep deprivation; and given mind-altering drugs. 8. Mr Jones returned to the United Kingdom where a medical examination found he had injuries consistent with his account and where he was diagnosed with severe post-traumatic stress disorder. 9. On 27 May 2002 Mr Jones commenced proceedings in the High Court against “the Ministry of Interior the Kingdom of Saudi Arabia” and Lieutenant Colonel Abdul Aziz, claiming damages, inter alia, for torture. In the particulars of claim he referred to Lieutenant Colonel Abdul Aziz as a servant or agent of Saudi Arabia. Service was effected on Saudi Arabia via its then solicitors, but the solicitors made it clear that they had no authority to accept service of the claim on Lieutenant Colonel Abdul Aziz. 10. On 12 February 2003 Saudi Arabia applied to have the claim struck out on the grounds that it, and its servants and agents, were entitled to immunity and that the English courts had no jurisdiction. Mr Jones applied for permission to serve the claim on Lieutenant Colonel Abdul Aziz by an alternative method. In his judgment of 30 July 2003, a Master of the High Court held that Saudi Arabia was entitled to immunity under section 1(1) of the State Immunity Act 1978 (see paragraph 39 below). He also held that Lieutenant Colonel Abdul Aziz was similarly entitled to immunity under that Act and refused permission to allow service by an alternative method. Mr Jones appealed to the Court of Appeal. 11. Mr Mitchell and Mr Sampson were arrested in Riyadh in December 2000; Mr Walker was arrested there in February 2001. All three applicants alleged that, while in custody, they were subjected to sustained and systematic torture, including beatings about the feet, arms, legs and head, and sleep deprivation. Mr Sampson alleged he was anally raped. The applicants were released and returned to the United Kingdom on 8 August 2003. Each obtained medical reports which concluded that their injuries were consistent with their accounts. 12. The applicants decided to commence proceedings in the High Court against the four individuals they considered to be responsible: two policemen, the deputy governor of the prison where they were held, and the Minister of the Interior who was alleged to have sanctioned the torture. They therefore applied for permission to serve their claim on the four individuals out of the jurisdiction. On 18 February 2004 this was refused by the same Master who had heard Mr Jones’s claim, on the basis of his previous ruling in respect of Mr Jones. However, the Master acknowledged that he had enjoyed the benefit of fuller argument than on the applications relating to Mr Jones’s claim, and said: “[H]ad the matter come before me as a free-standing application, without my having decided the Jones case ..., I might have been tempted to give permission to serve out of the jurisdiction on the basis that it seems to me that, having heard the arguments, that there is a case to be answered by these defendants as to whether there is jurisdiction in these courts over them.” 13. The applicants appealed to the Court of Appeal with the leave of the Master. 14. The two cases were joined and on 28 October 2004 the Court of Appeal published its judgment. It unanimously dismissed Mr Jones’s appeal from the decision of the Master to refuse permission to serve Saudi Arabia outside the jurisdiction. However, it allowed the appeals in respect of the refusal of permission in each case to serve the individual defendants. 15. As regards the immunity of Saudi Arabia, Lord Justice Mance, with whom Lord Phillips and Lord Justice Neuberger agreed, refused to depart from this Court’s ruling in AlAdsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001XI. He further found that Article 14 § 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention against Torture” – see paragraph 63 below), which obliges a Contracting State to ensure that a victim of an act of torture obtains redress, could not be interpreted as imposing an obligation on a State to provide redress for acts of torture when those acts were committed by another State in that other State. 16. In respect of the immunity of the individual defendants, Mance LJ considered the case-law of the domestic courts and courts of other jurisdictions, which recognised State immunity ratione materiae in respect of acts of agents of the State. However, he noted that none of these cases was concerned with conduct which was to be regarded as outside the scope of any proper exercise of sovereign authority or with international crime, let alone with systematic torture. He did not accept that the definition of torture in Article 1 of the Convention against Torture as an act “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” (see paragraph 59 below) was fatal to the applicants’ claims: “71. ... It seems doubtful that the phrase ‘acting in an official capacity’ qualifies the reference to ‘a public official’. The types of purpose for which any pain or suffering must be inflicted ... would appear to represent a sufficient limitation in the case of a public official. Be that as it may, the requirement that the pain or suffering be inflicted by a public official does no more in my view than identify the author and the public context in which the author must be acting. It does not lend to the acts of torture themselves any official or governmental character or nature, or mean that it can in any way be regarded as an official function to inflict, or that an official can be regarded as representing the state in inflicting, such pain or suffering. Still less does it suggest that the official inflicting such pain or suffering can be afforded the cloak of state immunity ... The whole tenor of the Torture Convention is to underline the individual responsibility of state officials for acts of torture ...” 17. Mance LJ did not consider it significant that Lieutenant Colonel Abdul Aziz had been described in Mr Jones’s claim as the “servant or agent” of Saudi Arabia. Nor did he accept that general differences between criminal and civil law justified a distinction in the application of immunity in the two contexts. He noted that the House of Lords in Pinochet (No. 3) (see paragraphs 44-56 below) had considered that there would be no immunity from criminal prosecution in respect of an individual officer who had committed torture abroad in an official context. It was not easy to see why civil proceedings against an alleged torturer could be said to involve a greater interference in the internal affairs of a foreign State than criminal proceedings against the same person. It was also incongruous that if an alleged torturer was within the jurisdiction of the forum State, he would be prosecuted pursuant to Article 5 § 2 of the Convention against Torture (see paragraph 62 below) and no immunity could be claimed, but the victim of the alleged torture would be unable to pursue any civil claim. Furthermore, there was no basis for assuming that, in civil proceedings, a State could be made liable to indemnify or otherwise support one of its officials proved to have committed systematic torture. 18. Mance LJ considered that whether any claim in the English courts against individuals could proceed was better determined not by reference to immunity, but by reference to whether it was appropriate for the English courts to exercise jurisdiction. A number of factors were relevant to the assessment of this question, including the sensitivity of the issues involved and the general power of the English courts to decline jurisdiction on the ground that England was an inappropriate forum for the litigation. 19. In considering the impact of Article 6, Mance LJ found important distinctions between a State’s claim to immunity ratione personae, in issue in AlAdsani (cited above), and a State’s claim to immunity ratione materiae in respect of its officials, in issue in the present cases. Firstly, he considered it impossible to identify any settled international principle affording the State the right to claim immunity in respect of claims directed against an official, rather than against the State, its Head of State or diplomats. He was of the view that the legislation and case-law of the United States of America (see paragraphs 112-25 below) militated strongly against any such settled principle and supported a contrary view. In so far as counsel for the Government purported to refer to evidence of settled practice, Mance LJ noted that the case-law to which he had referred related either to the immunity of the State itself or to the immunity of individual officials for alleged misconduct that bore no relationship in nature or gravity to the international crime of systematic torture. He considered the dicta in the separate opinion of Judges Higgins, Kooijmans and Buergenthal to the judgment of the International Court of Justice in the “Arrest Warrant” case (see paragraphs 84-85 below) to provide further confirmation that there was no settled international practice in this area. 20. Mance LJ explained that where, under Article 14 of the Convention against Torture, a State had created a domestic remedy for torture in the State where that torture was committed, other national courts could be expected to refuse to exercise jurisdiction. However, where there was no adequate remedy in the State where the systematic torture occurred, it might be regarded as disproportionate to maintain a blanket refusal of recourse to the civil courts of another jurisdiction. He acknowledged that the courts of one State were not to adjudicate lightly upon the internal affairs of another State, but considered that there were many circumstances, particularly in the context of human rights, where national courts did have to consider and form a view on the position in, or conduct of, foreign States. 21. Mance LJ concluded that giving blanket effect to a foreign State’s claim to State immunity ratione materiae in respect of a State official alleged to have committed acts of systematic torture could deprive the right of access to a court under Article 6 of real meaning in a case where the victim of torture had no prospect of recourse in the State whose officials had committed the torture. He therefore allowed the applicants’ appeals in respect of the individual defendants and remitted them for further argument, concluding: “96. ... [I]t seems to me that any absolute view of immunity must at the very least yield in the face of assertions of systematic torture to a more nuanced or proportionate approach. As it is, having regard to the [European Convention on Human Rights], it is sufficient to decide this appeal that, whether issues of state immunity are or are not treated as theoretically separate from issues of jurisdiction in English law, the permissibility, appropriateness and proportionality of exercising jurisdiction ought to be determined at one and the same time. Such a conclusion reflects the importance attaching in today’s world and in current international thinking and jurisprudence to the recognition and effective enforcement of individual human rights. It fits harmoniously with the position already achieved in relation to criminal proceedings. It caters for our obligation under article 6 of the [Convention] not to deny access to our courts, in circumstances where it would otherwise be appropriate to exercise jurisdiction applying domestic jurisdictional principles, unless to do so would be in pursuit of a legitimate aim and proportionate. ...” 22. In his concurring judgment, Lord Phillips agreed with the conclusions of Mance LJ as regards both the claim against Saudi Arabia and the claims against the individual officials. In particular, he considered that the judgment in Pinochet (No. 3) (see paragraphs 44-56 below) had shown that torture could no longer fall within the scope of the official duties of a State official. It therefore followed that if civil proceedings were brought against individuals for acts of torture in circumstances where the State was immune from suit, there could be no suggestion that the State would be vicariously liable: it was the personal responsibility of the individuals, not that of the State, which was in issue. 23. On the approach of this Court, he commented: “134. Had the Grand Chamber been considering a claim for state immunity in relation to claims brought against individuals, I do not believe that there would have been a majority in favour of the view that this represented a legitimate limitation on the right to access to a court under Article 6(1). Had the Court shared the conclusions that we have reached on this appeal, it would have held that there was no recognised rule of public international law that conferred such immunity. Had it concluded that there was such a rule, I consider that it would have been likely to have held that it would not be proportionate to apply the rule so as to preclude civil remedies sought against individuals.” 24. Saudi Arabia appealed to the House of Lords against the decision of the Court of Appeal in respect of the individual defendants and Mr Jones appealed against the decision of the Court of Appeal in respect of his claim against Saudi Arabia itself. On 14 June 2006, the House of Lords unanimously allowed Saudi Arabia’s appeal and dismissed the appeal by Mr Jones. 25. Lord Bingham considered that there was a “wealth of authority” in the United Kingdom and elsewhere to show that a State was entitled to claim immunity for its servants or agents and that the State’s right to immunity could not be circumvented by suing them instead. In some borderline cases there could be doubt whether the conduct of an individual, although a servant or agent, had a sufficient connection with a State to entitle it to claim immunity for his conduct. However, in his view, these were not borderline cases. Lieutenant Colonel Abdul Aziz was sued as a servant or agent of Saudi Arabia and there was no suggestion that his conduct was not in discharge or purported discharge of his duties. The four defendants in the second case were public officials and the alleged conduct took place in public premises during a process of interrogation. 26. Further, referring to the International Law Commission’s (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (see paragraphs 107-09 below), Lord Bingham said that “international law does not require, as a condition of a State’s entitlement to claim immunity for the conduct of its servant or agent, that the latter should have been acting in accordance with his instructions or authority”. The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity. 27. In order to succeed in their Convention claim, Lord Bingham explained that the applicants had to establish three propositions. Firstly, they had to show that Article 6 of the Convention was engaged by the grant of immunity; Lord Bingham was prepared to assume, based on this Court’s judgment in AlAdsani, cited above, that it was. Secondly, they had to show that the grant of immunity denied them access to a court; Lord Bingham was satisfied that it plainly would. Thirdly, the applicants had to show that the restriction was not directed to a legitimate objective and was disproportionate. 28. Lord Bingham disagreed with the applicants’ submission that torture could not be a governmental or official act since, under Article 1 of the Convention against Torture, torture had to be inflicted by or with the connivance of a public official or other person acting in an official capacity (see paragraph 59 below). Although the applicants referred to a substantial body of authority showing that the courts of the United States would not recognise acts performed by individual officials as being carried out in an official capacity for the purposes of immunity if those acts were contrary to a jus cogens prohibition, Lord Bingham found it unnecessary to examine those authorities since they were only important to the extent that they expressed principles widely shared and observed among other nations. However, as Judges Higgins, Kooijmans and Buergenthal had stated in their concurring opinion in the “Arrest Warrant” case, the “unilateral” US approach had not attracted the “approbation of States generally” (see paragraph 84 below). 29. Concerning the applicants’ reliance on the recommendation of the United Nations Committee Against Torture of 7 July 2005 in respect of Canada, comments made in the judgment of the International Criminal Tribunal for the former Yugoslavia in Furundžija, and the judgment of the Italian Court of Cassation in Ferrini v. Germany (see, respectively, paragraphs 66, 82 and 140 below), Lord Bingham considered the first to be of slight legal authority, the second to be an obiter dictum and the third not to be an accurate statement of international law. 30. Lord Bingham identified four arguments advanced by Saudi Arabia which he said were “cumulatively irresistible”. Firstly, given the conclusion of the International Court of Justice in the “Arrest Warrant” case, the applicants had to accept that State immunity ratione personae could be claimed for a serving foreign minister accused of crimes against humanity. It followed that the prohibition of torture did not automatically override all other rules of international law. Secondly, Article 14 of the Convention against Torture did not provide for universal civil jurisdiction. Thirdly, the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (see paragraphs 75-80 below) did not provide any exception from immunity for civil claims based on acts of torture; although such an exception was considered by a working group of the ILC, it was not agreed (see paragraph 79 below). Lord Bingham noted in this respect that although some commentators had criticised the United Nations Convention because it did not include a torture exception, they nonetheless accepted that this area of international law was “in a state of flux” and did not suggest that there was an international consensus in favour of such an exception. Finally, there was no evidence that States had recognised or given effect to any international-law obligation to exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of international law, nor was there any consensus of judicial or learned opinion that they should. For these reasons, Lord Bingham agreed with the Court of Appeal that the claim brought by Mr Jones against Saudi Arabia was to be dismissed. 31. In respect of the individual defendants, he found that the conclusion of the Court of Appeal on the torture claims could not be sustained. He considered that the Court of Appeal had incorrectly departed from the position in its previous ruling in Propend that the acts of State officials were to be considered the acts of the State itself (see paragraphs 42-43 below). He explained: “30. ... [T]here was no principled reason for this departure. A state can only act through servants and agents; their official acts are the acts of the state; and the state’s immunity in respect of them is fundamental to the principle of state immunity. This error had the effect that while the Kingdom was held to be immune, and the Ministry of Interior, as a department of the government, was held to be immune, the Minister of Interior (the fourth defendant in the second action) was not, a very striking anomaly.” 32. Lord Bingham explained that this first error had led the court into a second: its conclusion that a civil claim against an individual torturer did not indirectly implead the State in any more objectionable respect than a criminal prosecution. He observed: “31. ... A state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings. The prosecution of a servant or agent for an act of torture within article 1 of the Torture Convention is founded on an express exception from the general rule of immunity. It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party.” 33. In Lord Bingham’s view both errors resulted from a misreading of Pinochet (No. 3) (see paragraph 44-56 below), which concerned criminal proceedings only. The distinction between criminal proceedings (which were the subject of universal jurisdiction) and civil proceedings (which were not) was, he said, “fundamental” and one that could not be “wished away”. 34. Finally, Lord Bingham noted that the Court of Appeal had found that jurisdiction should be governed by “appropriate use or development of discretionary principles”. He considered that this was to mistake the nature of State immunity. Where applicable, State immunity was an absolute preliminary bar and a State was either immune from the jurisdiction of a foreign court or it was not, so there was no scope for the exercise of discretion. 35. Lord Hoffmann, concurring in the judgment, considered that there was no automatic conflict between the jus cogens prohibition on torture and the law of State immunity: State immunity was a procedural rule and Saudi Arabia, in claiming immunity, was not justifying torture but merely objecting to the jurisdiction of the English courts in deciding whether it had used torture or not. He quoted with approval the observation of Hazel Fox QC (The Law of State Immunity (Oxford University Press, 2004), p. 525) that State immunity did not “contradict a prohibition contained in a jus cogens norm but merely divert[ed] any breach of it to a different method of settlement”. For Lord Hoffmann, a conflict could only arise if the prohibition on torture had generated an ancillary procedural rule which, by way of exception to State immunity, entitled a State to assume civil jurisdiction over other States. Like Lord Bingham, he found that the authorities cited showed no support in international law for such a rule. 36. As regards the application of State immunity to individual defendants, Lord Hoffmann indicated that in order to establish that the grant of immunity to an official would infringe the right of access to a court guaranteed by Article 6 of the Convention, it was necessary, as in the case of the immunity of the State itself, to show that international law did not require immunity against civil suit to be accorded to officials who were alleged to have committed torture. He considered that, once again, it was impossible to find any such exception in a treaty. He reviewed in some detail the circumstances in which a State would be liable for the act of an official in international law and found it clear that a State would incur responsibility in international law if one of its officials “under colour of his authority” tortured a national of another State, even though the acts were unlawful and unauthorised. He said: “78. ... To hold that for the purposes of state immunity [the official] was not acting in an official capacity would produce an asymmetry between the rules of liability and immunity. 79. Furthermore, in the case of torture, there would be an even more striking asymmetry between the Torture Convention and the rules of immunity if it were to be held that the same act was official for the purposes of the definition of torture but not for the purposes of immunity ...” 37. Lord Hoffmann found Lord Justice Mance’s conclusion that the Convention against Torture’s definition of torture did not lend acts of torture any official character to be unsatisfactory, explaining: “83. ... The acts of torture are either official acts or they are not. The Torture Convention does not ‘lend’ them an official character; they must be official to come within the Convention in the first place. And if they are official enough to come within the Convention, I cannot see why they are not official enough to attract immunity.” 38. He also considered inappropriate the Court of Appeal’s proposed approach to the exercise of jurisdiction, on the ground that State immunity was not a self-imposed restriction but was “imposed by international law without any discrimination between one State and another.” He concluded that it would be “invidious in the extreme for the judicial branch of government to have the power to decide that it will allow the investigation of allegations of torture against the officials of one foreign state but not against those of another”. | 0 |
test | 001-146404 | ENG | ROU | CHAMBER | 2,014 | CASE OF S.B. v. ROMANIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 5. The applicant was born in 1952 and lives in Bucharest. 6. In August 2001, the applicant started going to the dental practice of Dr A.D. in order to have dental bridges fitted. The treatment involved work on about twenty teeth, fitting bridges and crowns and adapting the adjacent teeth. 7. The treatment started in September 2001. When the first part of the bridgework was ready, the applicant noticed that it did not fit well. The dentist told her that she could still use it in order to eat and that he would rectify the problem. When the rest of the bridgework was ready, she again noticed that she could not close her mouth and that when she tried to eat it caused her great pain. The bridges were fitted provisionally and it was agreed that they would be permanently fixed at a later stage after being further adapted. Nevertheless, while wearing them she realised that her gums were affected. During the following days, she went to the dental surgery several times in order to have the bridges adapted, but the dentist told her that they were perfect and that all that remained was for them to be fixed permanently, even though she showed him that she could not close her mouth and that her gums were bleeding. 8. The applicant alleged that she had attempted to make a new appointment with Dr A.D. on several occasions prior to the end of January 2002, but to no avail. During this period, her state of health worsened and she had no money to pay for further dental treatment. 9. On 30 January 2002 the dentist issued her with a certificate of guarantee for the dental work that he had carried out and he kept the bridges with a view to adapting them. The applicant only received them back one and a half months later, without any change having been made to them. 10. She insisted that she could not use the bridgework, she could not eat while wearing it and that it hurt her gums and caused them to become infected. 11. In a complaint of 18 July 2002 addressed to the Ministry of Health, the applicant asked to undergo a medical expert examination in order to determine whether the bridgework was functional, to what extent it affected her teeth and how long she could wear bridges which were only fitted provisionally without this affecting her teeth and gums or causing irreversible speech problems. 12. On 6 August 2002 she was informed that her complaint would be reviewed by the Bucharest College of Doctors. 13. At the end of September 2002, she had a consultation with another dentist, Dr A.B. According to the applicant, she was told that the bridgework had not been correctly done and, given all the problems that it had caused her (infected gums, cuts, pain), it was not recommended that the bridges be fixed permanently. 14. A few days later, she was asked to undergo an examination by a panel of experts attached to the Faculty of Dentistry. 15. The second examination took place on 8 October 2002. She submitted that she had been told that there had been no need to perform an overly detailed examination, as it could be easily seen that the bridges should not be worn. 16. In a letter of 14 January 2003 addressed to the Bucharest College of Doctors, she asked to be informed of the findings in the medical expert report. On the same date, the Bucharest College of Doctors replied that the findings of the medical examination that they had carried out were only for the internal use of the Disciplinary Panel of the College of Doctors. If she wished to obtain an expert report, she had to request one from the National Institute of Forensic Medicine (hereafter, “the Institute”). 17. She contacted the Institute, but was informed that a medical expert report could only be requested in the context of judicial proceedings. 18. On 10 March 2003 the applicant lodged a criminal complaint, asking that a detailed medical expert report be ordered to determine whether there had been medical negligence. In the same complaint, she sought the reimbursement of the cost of the remaining dental treatment, which had not been returned to her, as well as compensation for non-pecuniary damage arising from the suffering and health problems that the treatment in question had caused her. Her complaint was registered with the competent police department on 9 May 2003. 19. In a letter of 11 August 2003, the police department asked the Institute to draw up a medical expert report in order to determine whether the dental work performed by Dr A.D. had caused injuries which required medical treatment. 20. The Institute, having received a request by the applicant for the examination not to be conducted by the University of Bucharest, where Dr A.D. had studied, asked the Iași Dental Hospital to examine the applicant. 21. The Iași Dental Hospital issued its report on 4 September 2003, after having examined the applicant. The applicant took the report and handed it over to the Institute, which issued a forensic expert report on 4 December 2003. Its findings were as follows: “ after having examined S.B. and reviewing the medical papers, it appears that in September 2001 she underwent treatment to fit a variety of bridges and crowns, which proved to have been carried out incorrectly and inadequately. The attempt to wear the bridges and the subsequent absence of them led to complications and functional disorders (dental abrasion, chronic marginal periodontitis) [made] very widespread and severe by the dental bridgework, which is currently not correctly adapted to the cervical and axial margins [of the interproximal surfaces]. ... We underline that her current state is not completely the fault of the doctor who performed the work, but is also a result of the lack of dental treatment in the period September 2001 to August 2003, a period of time during which the functional disorders [outlined above were] aggravated because the bridges were not correctly adapted to the cervical and axial margins [of the interproximal surfaces]. In order to redo the treatment and put in place correct bridges, it is estimated that S.B. would have to undergo around thirty to thirty-five days of medical treatment.....” 22. The applicant tried to obtain a copy of that report, but she was told that she could only obtain one once the case had been referred to a court. In the end, she obtained a copy from the investigating officer on 12 October 2004. 23. The applicant contested the findings of this medical expert report, submitting that it had played down the negative findings of the report issued by the Iași Dental Hospital following that hospital’s examination of her. She also complained that there was no opportunity to have the conclusions reviewed by a medical review board. 24. On 23 September 2004 the prosecutor attached to the Bucharest District Court opened a criminal investigation against Dr A.D. on charges of causing bodily harm, for which criminal liability was established by Article 181 of the Criminal Code, as in force at the material time. 25. On 29 January 2005 the same prosecutor put an end to the criminal investigation, reasoning that the applicant’s failure to go to A.D.’s dental surgery in order to have the bridges permanently fixed had led to the deterioration of her state of health. 26. That decision was communicated to the applicant on 8 May 2008. 27. The applicant lodged a complaint against the decision. The complaint was allowed by a prosecutor’s decision of 23 May 2008. The prosecutor held that the case had been investigated on the basis of a crime punishable under Article 184 of the Criminal Code (causing unintentional bodily harm), whereas the decision to terminate the proceedings had concerned a crime punishable under Article 181 of the Criminal Code (causing bodily harm). 28. The case was referred back to the prosecutor. 29. By a decision of 27 May 2008, the prosecutor terminated the criminal investigation against Dr A.D. on the basis that the applicant had failed to lodge a criminal complaint against him within the twomonth timelimit set by the Criminal Code. A criminal action for unintentional bodily harm could only be started on the basis of a preliminary complaint by the victim, which had to be lodged within two months from the date on which the victim had become aware of who the perpetrator was. As the applicant had known who had carried out the dental treatment since August/September 2001 but had only lodged her complaint with the prosecutor on 9 May 2003, it followed that her complaint was out of time. This decision was upheld by the supervising prosecutor on 20 August 2008. 30. The applicant’s application for judicial review of those decisions was dismissed by the Bucharest District Court on 21 November 2008. 31. Her subsequent appeal was allowed by the Bucharest County Court in a final decision of 3 February 2009, by which it was established that the prosecutor and the district court had wrongly assessed the evidence. The County Court noted that the criminal investigation had not been completed within a reasonable time. It was further established that the evidence in the case file had been sufficient to support the allegation that Dr A.D. had committed an act punishable by Article 184 §§ 2 and 4 of the Criminal Code, a crime in respect of which a criminal investigation could be automatically started by a public prosecutor. The County Court drew attention to the findings of the medical expert report in respect of the complications caused by the bridgework. It therefore considered that these complications (the destruction of bone supporting the teeth) amounted to a permanent physical disability. 32. The County Court remitted the case to the Bucharest Sector 1 District Court, instructing that court to consider the case in the light of the crimes punishable under Article 184 §§ 2 and 4 of the Criminal Code. 33. The district court ordered a new expert report from the Institute. The report could not be produced mainly because all the medical documentation from Dr A.D.’s consulting room, consisting of medical records, xrays, dental prints, and so forth, could not be found. The applicant refused to undergo a new medical examination on the ground that the new report should have been based not only on her examination in 2010 but also on the documents existent in her medical file. 34. In its judgment of 8 March 2011 the District Court found, on the one hand, that the applicable statute of limitation had expired. On the other hand, examining the merits of the case it acquitted the defendant on the basis of the expert report of 2003, finding that “the subsequent behaviour of the injured party, who chose to ignore the medical advice of the defendant, refused the completion of the treatment, in particular the permanent fixing of the dental prosthetics, only wore the prosthetics when eating, as she had personally testified before the court, [and failed to maintain] proper oral hygiene, [as] underlined by the expert report, ... led to complications, [which] cannot be blamed on the defendant but on the injured party herself.” 35. The applicant lodged an appeal on points of law with the Bucharest Court of Appeal. She sought a requalification of the charges from Article 184 (causing unintentional bodily harm) to Article 182 (causing intentional bodily harm) of the Criminal Code. 36. By a decision of 4 October 2011 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law. It held, inter alia, that the additional evidence requested by the applicant such as the contract, order and invoice for the manufacture of the bridges, as well as dental xrays, was irrelevant. Furthermore, it held that no causal link could be established between the treatment and the injuries sustained by the applicant, which were attributable exclusively to her conduct, that is, ignoring medical advice. | 1 |
test | 001-179227 | ENG | MKD | COMMITTEE | 2,017 | CASE OF KRSTANOSKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Aleš Pejchal;Krzysztof Wojtyczek | 5. In 1957 several plots of land (agricultural land at the time) were expropriated from the applicants’ legal predecessors. The present cases concern restitution proceedings in which the applicants sought that the plots of land, which, at present, form part of a campsite on the shore of Lake Ohrid, be restored to their possession. 6. On 14 August 2001 the applicants instituted restitution proceedings. On 15 September 2003 the Ministry of Finance’s Restitution Commission (“the Restitution Commission”) granted the applicants’ claims and awarded them compensation, the form of which was to be determined by a separate decision. It established that according to an urban plan of 20 March 2002 the land was designated as a public green zone in a tourist area. Relying on an on-site inspection (увид) of 1 September 2002, it further held that the land was developed (уреден простор) with access paths and supporting infrastructure. 7. On 4 December 2003 the applicants appealed, arguing that, inter alia, the land was undeveloped and could be restored to their possession. Were the urban plan to be implemented in the future, the land could be expropriated anew. 8. On 31 May 2005 the the Second-Instance Administrative-Procedure Commission in the Area of Denationalisation (Комисија за решавање во управна постапка во втор степен од областа на денационализацијата – “the second-instance commission”) dismissed the applicants’ appeal finding no grounds to depart from the established facts and the reasons given by the Restitution Commission. Relying on section 10 of the Restitution Act (see paragraph 15 below), the second-instance commission held that the land in question was of public interest (јавен интерес) and could not be restored to the applicants’ possession, but that compensation should be awarded instead. 9. On 21 September 2005 the applicants lodged an administrative-dispute claim with the Supreme Court reiterating that the land within the campsite was undeveloped and could therefore be restored to their possession. In submissions lodged subsequently, they further referred to decision no. 44-530/1 of 7 March 2006 in which the second-instance commission had accepted a similar claim and ordered that a neighbouring plot of land located within the same campsite had been restored to possession of the claimants. In that case, the second-instance commission had held, unlike in the applicants’ case, that access paths and supporting infrastructure had not been sufficient for the land in question to be regarded as developed. 10. On 7 February 2008 the Administrative Court, which had in the meantime become competent to decide administrative-dispute claims, dismissed the applicants’ claim and upheld the findings of the administrative authorities. 11. On 28 November 2003 the Restitution Commission upheld the applicants’ restitution claim and awarded them compensation in State bonds. Relying on an on-site inspection of 13 May 2002 and a certificate of 15 September 2002 issued by the competent Ministry, it established that the plot in question was located within the boundaries of the campsite; that it had been designated as a public green zone and that pedestrian paths and other similar infrastructure were planned for construction. It concluded accordingly that the plot could not be restored to the applicants’ possession. 12. An appeal by the applicants of 7 April 2004 was dismissed by the second-instance commission on 15 November 2005. The latter held that, inter alia, the findings of the Restitution Commission had been based on section 10 of the Restitution Act. 13. The applicants lodged an administrative-dispute claim in which, alike the applicants in application no. 38024/08, they referred to the second-instance commission’s decision no. 44-530/1 and asked the Administrative Court to ensure consistent application of the law. 14. On 21 April 2008 the Administrative Court dismissed the applicants’ claim, finding no grounds to depart from the established facts and the reasoning given by the administrative authorities. | 1 |
test | 001-146410 | ENG | HUN | COMMITTEE | 2,014 | CASE OF VAJNAI v. HUNGARY NO.4 | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Helen Keller;Robert Spano | 6. The applicant was born in 1963 and lives in Budapest. 7. On 18 May 2009 the applicant, a left-wing politician, participated in a peaceful demonstration wearing a five-pointed red star on his jacket. A police patrol which was present called on the applicant to remove the star, which was then confiscated. The applicant’s complaint to the Head of National Police was to no avail. 8. Subsequently, he challenged the measure in court. 9. On 29 June 2010 the Budapest Regional Court dismissed his action. The court held that the display of the red star contravened section 269/B of the Criminal Code and consequently its confiscation was justified under sections 115(1) and 151(1) of the Code of Criminal Procedure. 10. In review proceedings, the Supreme Court upheld the Regional Court’s decision on 8 June 2011, holding that the police measure had been lawful, despite the judgment of the European Court of Human Rights in the case of Vajnai v. Hungary (no. 33629/06, ECHR 2008), whose application in the circumstances had been no task of the police officers present on the premises. 11. The applicant incurred altogether 1,115 euros in legal costs. | 1 |
test | 001-168773 | ENG | RUS | COMMITTEE | 2,016 | CASE OF VASILYADI v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 6. The applicant was born in 1977, and lived until his arrest in the town of Krasnyy Sulin, Rostov Region. He died in a prison tuberculosis hospital in Rostov-on-Don. 7. On 27 March 2007 the applicant was arrested on suspicion of having been involved in drug trafficking. He was remanded in custody. 8. Two days later the Krasnyy Sulin Town Court of the Rostov Region authorised the applicant’s detention, having noted the gravity of the charges against him and the possibility of his absconding and reoffending in the light of the fact that he had not been living at his registered address in Krasnyy Sulin at the time of his arrest. The court also noted that the fact that the applicant was suffering from tuberculosis did not negate the indicated risks. 9. The applicant’s case was joined to the case of Ms P., his alleged accomplice. The two defendants were to stand trial together before the Town Court. 10. On several occasions the Town Court extended the detention of the two defendants, each time using similar wording, citing the gravity of the charges and the lack of any change in the circumstances and risks which had initially warranted their detention. 11. On 6 September 2007 the medical authorities informed the Town Court that the applicant’s state of health did not allow him to attend court hearings. On the same day the proceedings were stayed until his recovery. 12. On 29 October 2007, after receiving notice of the applicant’s expected discharge from a prison hospital, the Town Court resumed the proceedings and scheduled a hearing for 26 November 2007. 13. Two days later the head of the prison hospital informed the Town Court that the applicant’s medical condition warranted further treatment in the hospital. The date of his discharge was unclear. 14. On 26 November 2007 the Town Court again stayed the proceedings until the applicant’s recovery and collectively extended his and Ms P.’s detention for three months, until 29 February 2008, employing the same reasoning as on the previous occasions. The detention order contained no detailed assessment of the accuseds’ individual circumstances. 15. In January 2008 the prison hospital informed the Town Court that the applicant was receiving treatment and that it was impossible to predict the date of his discharge. 16. It appears that at some point the proceedings against Ms P. were disjoined from those of the applicant. 17. The Town Court continued regularly extending the applicant’s detention, citing the gravity of the charges and the risks of his absconding or reoffending. 18. In April and May 2008 the Town Court and the prison hospital exchanged correspondence concerning the applicant’s state of health. The medical authorities stated that the patient was unable to attend owing to a risk of his spreading tuberculosis. 19. Towards the end of August 2008 the Town Court asked the medical authorities to allow a hearing on the hospital premises. The head of the prison hospital agreed and on 12 September 2008 the proceedings resumed. 20. On 25 September 2008 the Town Court found the applicant guilty of two counts of the production and attempted sale of opium and sentenced him to six years’ imprisonment. 21. On 27 January 2009 the Rostov Regional Court quashed the judgment on appeal and remitted the case for fresh consideration, ordering that the applicant remain in custody. 22. In the course of the new round of proceedings the Town Court, on a number of occasions, authorised the applicant’s continued detention. Each time the gravity of the charges and the risks of his re-offending and absconding served as the reason for the extension. The extension orders were formulated in the same standard manner. The applicant did not attend the hearings as his tuberculosis remained contagious. The orders were upheld on appeal. 23. On 14 May 2009 the Town Court decided to stay the proceedings until the applicant’s recovery. The applicant appealed. 24. The proceedings were resumed less than a month later at the request of the applicant. The hearings were to be held on the hospital premises. 25. On 23 June 2009 the Town Court found the applicant guilty of drug trafficking and sentenced him to four years’ imprisonment. 26. On 14 July 2009 the Regional Court upheld the most recent detention order, stating as follows: “The [case-file] materials ... show that the preventive measure was imposed [on the applicant] in conformity with the [the applicant’s] personality. [The Town Court] came to the correct conclusion that the circumstances that had [indicated the necessity for] the applicant’s detention had not changed. Its conclusion that no other preventive measure might be applied to [the applicant] could not be disputed.” 27. On 25 August 2009 the Rostov Regional Court upheld the applicant’s conviction. 28. In 2006, prior to his arrest, the applicant was diagnosed with advanced tuberculosis, pleurisy, and inflammation of the tissue layers lining the lungs and inner chest wall. He was treated in the Rostov Regional State Tuberculosis Hospital. 29. Following his arrest on 27 March 2007, the applicant was admitted to remand prison no. IZ-61/3 in Novocherkassk. During the admission procedure the applicant informed the prison authorities that he was suffering from tuberculosis. A chest X-ray examination on 9 April 2007 revealed that both his lungs were damaged by an active, advanced form of tuberculosis and that the right lung was partially collapsed on account of the presence of air in the thorax. The condition was further complicated by pleurisy. A course of drugs, dietary nutrition and the drainage of fluid from the pleural cavity were prescribed. 30. The parties disagreed on whether the applicant had received the prescribed treatment. While a report by the detention authorities in April 2010 stated that he had been given the treatment in full, the applicant’s medical file did not contain any information confirming that he had complied with the course of drug treatment. 31. On 8 August 2007 the applicant’s health deteriorated and he was taken by ambulance to the prison tuberculosis hospital in Rostov-on-Don. The applicant was regularly examined by doctors, underwent various medical tests and received treatment for tuberculosis. His right lung was drained after the insertion of a chest tube. 32. On 9 January 2008 a drug susceptibility test was performed. It revealed that the applicant’s tuberculosis was resistant to five drugs, including those which had been given to him in the hospital. Several days later his drug treatment was amended and the illness was brought under control. 33. On 3 June 2008 pulmonary surgery was prescribed by the head of the hospital’s surgical unit. 34. According to a medical report of 28 April 2010 submitted by the Government, three days later the applicant’s health worsened and it was no longer possible to perform the prescribed operation. The applicant’s medical file does not contain any records regarding the deterioration of his health during that three-day period. 35. Regular chest X-ray examinations carried out in the subsequent period revealed the development of complications and showed no improvement in the course of the disease. The applicant was recommended a non-surgical course of treatment. 36. The applicant’s medical file shows that at the beginning of January 2009 he several times refused to follow a round of drug therapy. On 30 January 2009 he consulted a psychologist and a psychiatrist on this matter. 37. On 5 June 2009 a tuberculosis specialist established that the applicant’s infection was spreading and that his overall condition had worsened to the extent that surgical intervention was no longer possible. The applicant started undergoing new, multi-drug therapy under the close supervision of doctors. On 3 December 2009 and 12 February 2010 the doctors confirmed that the applicant could not undergo the prescribed pulmonary surgery due to the continuing deterioration in his health. 38. On 29 October 2010 a medical panel concluded that the applicant’s condition warranted his early release from detention. 39. On 10 November 2010 the Town Court ordered the applicant’s release on health grounds. 40. Four days later he died in detention of tuberculosis. | 1 |
test | 001-179406 | ENG | TUR | COMMITTEE | 2,017 | CASE OF ÖZÇAYIR AND ÇİÇEK v. TURKEY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Ledi Bianku;Stéphanie Mourou-Vikström | 4. The applicants were born in 1982 and 1981 respectively. 5. On 22 April 2006 upon receipt of intelligence reports that the youth branch of the PKK would be holding a meeting in the premises of a cooperative, the police officers, under the orders of the magistrates’ court, conducted a search in the premises of the co-operative of which the applicants were members. The police seized several documents and CDs that contained propaganda materials related to the youth branch of the PKK. 6. On the same day the applicants were taken into custody on suspicion of being members of a terrorist organisation. 7. On 24 April 2006 the Urfa Magistrates’ Court ordered the applicants’ detention on remand. 8. On 27 April 2006 and 28 April 2006, respectively, the applicants filed objections against their pre-trial detention. The courts rejected their request on the basis of the case-file, without holding a hearing. 9. During the pre-trial stage, the magistrates’ court continued to examine, by virtue of Article 108 of Law no. 5271, the necessity of applicants’ continued detention every thirty days on the basis of the case file, without holding an oral hearing. The applicants also filed objections against their continued pre-trial detention, namely on 15 June, 12 July, 17 July, 1 August and 17 October 2006. All these objections were examined on the basis of the case file and were rejected by the domestic courts. 10. On 10 October 2006 the Diyarbakır Public Prosecutor filed an indictment with the Diyarbakır Assize Court charging the applicants, along with twenty three other persons, with aiding and abetting a terrorist organisation under Article 314 of the Criminal Code (Law no. 5237). 11. On 30 November 2006 the Diyarbakır Assize Court held its first hearing and the applicants appeared before the court. On the same day, the applicants were released pending trial. 12. On 4 November 2008 the Diyarbakır Assize Court acquitted the applicants of the charges against them. In the absence of an appeal, this judgment became final on 12 November 2008. | 1 |
test | 001-160090 | ENG | ARM | CHAMBER | 2,016 | CASE OF GHUYUMCHYAN 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;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano | 5. The applicants are the son (the first applicant), the daughter-in-law (the second applicant) and the wife (the third applicant) of the late Garegin Ghuyumchyan. They were born in 1965, 1973 and 1947 respectively and live in Vanadzor, Armenia. The first and the third applicants are also Garegin Ghuyumchyan’s first heirs, according to the Armenian civil law. 6. The third applicant and Garegin Ghuyumchyan ran a printing house and a small spirit factory as a family business. 7. On 19 July 2002 Garegin Ghuyumchyan was charged with bribetaking and made an undertaking not to leave his residence. A truck and a television set belonging to him were seized. It appears that he then hired a defence lawyer. 8. On 25 September 2002 the investigating authority decided to dismiss the charge against Garegin Ghuyumchyan for lack of evidence, lifted the seizure and cancelled the undertaking. It appears that after the dismissal of the charge, Garegin Ghuyumchyan’s advocate refused to work with him any longer. 9. In 2004 Garegin Ghuyumchyan and the third applicant sold the family business to a private person. 10. On 29 October 2004 Garegin Ghuyumchyan instituted proceedings seeking compensation for wrongful prosecution. In particular, he claimed reimbursement for legal and transport costs. He also claimed compensation for the loss of his family business, alleging that as a result of the prosecution he could not run it and had to sell it at a low price. 11. On 9 January 2006 Garegin Ghuyumchyan supplemented his claim, alleging that as a result of the prosecution the first and the second applicants had had to leave their jobs. The first and the second applicants also joined the proceedings as third parties having additional claims. 12. On 18 May 2006 the Lori Regional Court granted the claim in part, ordering reimbursement of legal costs and part of the transport costs. As for the rest of the claim, the Regional Court dismissed it on the ground that there was no causal link between the sale of the business and Garegin Ghuyumchyan’s prosecution or between the first and the second applicants’ leaving their jobs and the prosecution. 13. It appears that on 26 July 2006 Garegin Ghuyumchyan lodged a request with the Chamber of Advocates of Armenia, seeking to receive legal aid. 14. On 27 July 2006 the Chairman of the Chamber of Advocates of Armenia informed him in a letter that the Advocacy Act did not provide for legal aid for the type of proceedings in which he was involved. 15. On 17 November 2006 Garegin Ghuyumchyan lodged a complaint with the Lori Regional Prosecutor’s Office alleging that on 4 October 2006 he had been beaten by the Head of the Lori Region of Armenia. The outcome of this complaint is unclear. 16. On an unspecified date Garegin Ghuyumchyan and the first applicant lodged an appeal against the judgment of the Regional Court. 17. On 26 January 2007 the Civil Court of Appeal delivered its judgment upholding the judgment of the Regional Court in respect of the reimbursement of part of the travel costs as well as legal fees, but dismissing the rest of the claim. 18. On 22 June 2007 Garegin Ghuyumchyan lodged an appeal with the Court of Cassation against the judgment of the Court of Appeal. 19. By a letter of 28 June 2007 the Chief Registrar of the Court of Cassation returned the appeal, informing him that it had not been admitted for examination as it had not been lodged by an advocate licensed to act before the Court of Cassation, pursuant to Article 223 of the Code of Civil Procedure. The applicants alleged before the Court that their family could not afford the services of such an advocate. 20. On 29 October 2007 Garegin Ghuyumchyan and also the first and the second applicants lodged an introductory letter with the Court in which they complained under Article 6 § 1 that Garegin Ghuyumchyan had been denied access to the Court of Cassation, under Article 6 § 3 (c) that Garegin Ghuyumchyan’s defence lawyer had refused to represent him in the compensatory proceedings and that his request for legal aid had been rejected by the Chamber of Advocates. They also complained under Article 1 of Protocol No. 1 that the domestic courts had failed to grant the compensatory claim in full. 21. On 3 November 2007 Garegin Ghuyumchyan died of a heart attack. 22. On 10 May 2008 the applicants lodged their completed application with the Court. | 1 |
test | 001-178176 | ENG | ROU | COMMITTEE | 2,017 | CASE OF TANASOV v. ROMANIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque | 5. The applicant was born in 1975 and lives in Dublin, Ireland. 6. On 28 October 2008 the applicant was travelling on a passenger bus from Moldova to Romania, with Ireland as his final destination. 7. At 12.30 a.m. his bus arrived at the Albiţa border crossing between Moldova and Romania. Romanian custom officers stopped the bus, got on and started searching the passengers. Two silver ingots were found in the applicant’s pockets. 8. A customs officer decided that the applicant had failed to declare the ingots and confiscated them. An offence report drafted by the officer stated that the applicant had failed to declare two silver ingots of 1 kg each and had thereby breached the provisions of Article 653 (a) of the Customs Regulations (see paragraph 12 below). In addition to the confiscation the applicant was fined 3,000 Romanian lei (approximately 750 euros (EUR)). The report also stated that according to documents produced by the applicant he had bought the two ingots from a bank. 9. The applicant lodged an administrative complaint with the Albiţa Customs Office, asking for the annulment of the offence report of 28 October 2008 and the restitution of the confiscated goods. He explained that he had legally acquired the two ingots, which had a value of EUR 500. He had kept them on him in order to prevent them being stolen during the bus trip and not to elude customs. He also stated that it had not been possible to declare goods to customs in a discrete manner or in writing. The passengers had not been allowed to get off the bus before the customs officers had got on and he had wished to avoid saying what he was carrying in front of the other passengers. 10. On 26 January 2009 the Huşi District Court dismissed the applicant’s complaint as ill-founded. Based on the elements in the case file, the court observed that the customs officer had asked the applicant whether he had anything to declare and the applicant had said no. Under those circumstances the court held that the applicant had been correctly sanctioned by the customs officer. 11. An appeal on points of law by the applicant (recurs) was dismissed with final effect on 3 June 2009 by the Vaslui County Court. The court held that the applicant, who had signed the offence report, had failed to produce any evidence to challenge the customer officer’s findings in that document. | 1 |
test | 001-181389 | ENG | RUS | COMMITTEE | 2,018 | CASE OF KHLYSTOV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties. | 1 |
test | 001-174424 | ENG | CHE | CHAMBER | 2,017 | CASE OF M.O. v. SWITZERLAND | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Eritrea) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 6. The applicant is an Eritrean national and was born in 1990. He grew up in Eritrea and currently lives in Switzerland. 7. The applicant entered Switzerland illegally on 23 June 2014 and applied for asylum the next day. He was heard in person three times by the Swiss authorities responsible for asylum and migration (until 31 December 2014 the Bundesamt für Migration, renamed with effect from 1 January 2015 as the Staatssekretariat für Migration, SEM – hereafter “the State Secretariat for Migration”). During all three hearings an interpreter was present and the record was translated for the applicant prior to his signing it. 8. The first hearing was a summary interview at the Centre for Reception and Procedure (Empfangs- und Verfahrenszentrum) in Kreuzlingen on 1 July 2014. The applicant stated that he had not been allowed to continue at school beyond the eighth grade because he had failed the national admission exams for secondary school, and had been summoned for military service, which he had tried to avoid. Once he had reported for duty, he had tried to escape but had been caught. He stated that he had been beaten and subsequently imprisoned in Wi’a in conditions of very poor hygiene. He was unable to recall the exact dates of his imprisonment, but stated that he had been imprisoned from June 2012 to September 2013. He had managed to escape from prison one night when the guards were asleep. After staying in Eritrea for one more week, he had left the country on foot on 3 October 2013, crossing the border at Mereb. He had been picked up by Ethiopian soldiers the next day. 9. In order to support his account, the applicant submitted copies of his student card and a card showing that he was a church deacon, as well as the original of a card used for food distribution in Italy. He stated that he had been issued with an identity card in Eritrea in 2010, but had had to hand it in in Ethiopia. The applicant further stated that he was married and had a son born in October 2012. 10. The second, more detailed, hearing took place at the office of the State Secretariat for Migration in Berne on 11 March 2015. A member of a non-governmental organisation was present as a neutral witness, in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the record of the hearing in the event that he had witnessed any irregularities, but did not note down any such observations. 11. The applicant again gave an account of the alleged events in Eritrea leading up to his escape. This time he stated that he had been imprisoned in Wi’a from March to October 2013 following his attempt to escape from the military. When confronted with the discrepancy in comparison with his previous account in that regard, he stated that he might have made a mistake in the first interview. When asked about the conditions of his detention, the applicant claimed that it had been very dirty and very hot, and that he had been locked up all the time. Other than beatings suffered due to his attempt to escape, there had been no particular incidents. He did not recall any rules other than fixed meal times and being brought outside in the mornings and evenings to relieve himself. 12. When asked about his military training, the applicant claimed that he had only been there for a very brief period of time prior to his attempted escape. He had not learned how to use weapons. He could neither provide a name of his superior nor his unit nor his military number. 13. When questioned about his departure from Eritrea, the applicant described leaving A. (a village) on foot at around 6 p.m., together with a person living in the neighbourhood who knew the area. They had walked towards Mereb, but had lost their way as it was night-time. They had been very afraid and also hungry and thirsty. There were lots of thorn bushes in their way and they had heard the howling of hyenas. They had not been sure whether they had reached Ethiopian territory until soldiers who spoke Amharic had apprehended them at around 3 a.m. When informed by the interviewer that his account in relation to his departure might not be considered credible, which would result in the conclusion that he had left the country legally, the applicant said that he could not give more details about the departure because he did not know the area well and had been following the person with whom he had fled. 14. The applicant claimed that he had always been in good health. 15. In order to support his account, the applicant submitted the originals of his marriage certificate of 2010 and his son’s baptism certificate of 2012, as well as an attestation that he was a church deacon. He claimed that these documents had been sent to him from Eritrea. 16. The applicant was heard for a third time by the State Secretariat for Migration on 29 January 2016. Again, a member of a non-governmental organisation was present as a neutral witness, who did not note down any observations relating to irregularities. 17. The interviewer explicitly advised the applicant that the interview was taking place to give him another opportunity to describe his departure from Eritrea, and that the account he had so far provided in this regard would probably be dismissed as not credible, which would result in the conclusion that he had left the country legally. 18. The applicant responded that he had spent two days at his parents’ home in A. after escaping from prison. His family had contacted a people smuggler from the Mereb area. He and the smuggler had left A. on foot at around 6 p.m. When confronted with his previous account that he had left with a person from the neighbourhood, the applicant clarified that the person he had travelled with (the smuggler) came from a neighbouring village. During the night the smuggler had told him that he had taken many people across the border, but that he and the applicant had already been walking for too long a time, which meant that they must have lost their way. They had become disorientated and had only realised that they had crossed the border when they had been apprehended by Ethiopian soldiers at around 4 a.m. who had spoken to them in Amharic. 19. On 8 March 2016 the State Secretariat for Migration rejected the applicant’s asylum request and ordered his departure from Switzerland. It found that his account was not credible, and concluded that, having failed to prove or credibly demonstrate his refugee status pursuant to section 7 of the Asylum Act, the applicant was not a refugee as defined in section 3 of the Asylum Act. 20. The State Secretariat for Migration pointed out that the applicant had stated in the first hearing that he had been detained for a period of one year and three months, from June 2012 to September 2013, whereas in the second hearing he had said that he had been detained for seven months, from March to October 2013. It added that the applicant had also contradicted himself a number of times in the second hearing in relation to the commencement of his military training and the end of his schooling. Furthermore, his account as regards his time in prison and his escape from prison lacked substance, and he could not provide details as to what he had learned during his military training. 21. The State Secretariat for Migration also found that the applicant’s submissions regarding his illegal exit from Eritrea were not credible. Despite being asked several times to provide a detailed account of his departure or specific events in that connection, the applicant’s statement in that regard was superficial and limited to phrases. The State Secretariat for Migration argued that, particularly in relation to the hours during which the applicant and the smuggler had lost their way, it could legitimately be expected that the applicant would provide a substantiated account, which he had failed to do. Nor had he provided a consistent account in that regard. Moreover, he had made contradictory statements as to how long he had stayed at home between escaping from prison and leaving the country. 22. On 14 April 2016 the applicant lodged an appeal against that decision before the Federal Administrative Court. He submitted that the authorities had initially refrained from drafting him because of his role as a deacon – the fact that he was a deacon not having been contested by the asylum authority. He referred to a report of the European Asylum Support Office (EASO), which stated that the relevant authorities had, at times, deferred the draft of clerics, until a change in practice in 2010 had led to a stricter approach (see paragraph 49 below). The applicant submitted that he had had to undergo his military training in Wi’a, a place to which, according to a report by the US Department of State (see paragraph 51), students with poor grades were typically assigned. Shortly after reporting for duty, he had attempted to escape. He had been caught and, as a result, detained in March 2013. He had managed to escape from detention in September 2013 after seven months. Fearing that he would be detained once again or forced to perform military service, he had decided in early October 2013 to leave the country illegally. His family had organised a smuggler. They had fled during the night and, while attempting to cross the border at Mereb, had lost their way. They had been apprehended by Ethiopian soldiers early in the morning of 4 October 2013 and taken to Endabaguna. One week later, they had been transferred to the Hitsas refugee camp. 23. With regard to the alleged discrepancies relating to his schooling, the applicant submitted that he had difficulties with dates concerning the duration of his schooling and his age when he had started and left school, but emphasised that he had consistently stated that he had left school after eighth grade, having failed the exams to move on to secondary school, and referred to a report by EASO regarding the national examination at the end of eighth grade (see paragraph 49 below). Also, during the hearing he had corrected himself in relation to the commencement of his military training. Furthermore, it was comprehensible that he could not give a detailed account about things which he had learned during that training, given that he had attempted to escape almost immediately after reporting for duty. 24. The applicant claimed that the discrepancies between his statements in the first and the second hearings concerning the duration of his detention were due to his poor level of education. He emphasised that his statements as regards the time of the end of his detention, September 2013, were consistent. In relation to the conditions of detention, he argued that the account he had given to the asylum authorities very much reflected his personal experiences: he had stated that the prison had been dirty, that it had been very hot, that detainees had had lice, that there had been fixed meal times, and that he had been taken outside in the mornings and evenings to relieve himself. In light of this monotonous pattern, the mistake, if any, had been on the part of the interviewer, who had asked for a description of specific events. In that regard, the applicant argued that his account that he had been beaten with a wooden stick and kicked while lying on the ground in front of everyone as punishment related to a specific personal event. He emphasised that the interviewer had not questioned him about his scars, which he alleged were the result of that incident, or about specific events surrounding his escape from prison, pointing out that the latter issue had been raised by the representative of the non-governmental organisation who had been present as a neutral witness at the second hearing. As to the time between his escape from prison and his departure from Eritrea, the applicant argued that his first statement that he had left Eritrea one week after escaping from prison, and his second statement that he had spent two days at his parents’ home in A. during that time, were not contradictory. 25. With regard to the circumstances of his departure from Eritrea, he emphasised that his account had been consistent as regards the time when he and the smuggler had left the village and when they had been apprehended by Ethiopian soldiers. It was only logical that he could not make detailed statements about the area, as he had no knowledge of that area and had fled during the night. His most prominent memory related to the fears he had experienced when they lost their way. He could also recall the exact words in Amharic used by the Ethiopian soldiers when they had been apprehended. His account, which revolved around feelings of thirst, hunger and fear, and which mentioned the many thorn bushes in their way and the howling of hyenas, corresponded to his young age and poor level of education. Moreover, the State Secretariat for Migration had wrongfully concluded that there was a contradiction in his statements concerning the smuggler’s reaction when they had lost their way. 26. Lastly, the applicant submitted that he did not belong to any of the groups of people who could possibly obtain a visa to exit Eritrea. Referring to a letter from UNHCR – the original of which he presented – stating that he was registered in the Hitsas refugee camp in Ethiopia on 8 November 2013, and to the fact that crossing the border to enter Ethiopia by land was always unlawful (see paragraph 49 below), he argued that he had proved his illegal exit from Eritrea. 27. In conclusion, the applicant argued that he was a refugee as defined in section 3 of the Asylum Act, on account of his fear of ill-treatment for having deserted from military service. In the alternative, he claimed to qualify for temporary admission because of “subjective post-flight grounds” (as set out in section 54 of the Asylum Act), notably his illegal exit from Eritrea and his asylum application in Switzerland. Further, in the alternative, he alleged that his removal to Eritrea was neither permitted in the light of Article 3 of the Convention nor reasonable, entitling him to temporary admission to Switzerland. 28. On 9 May 2016 the Federal Administrative Court rejected the applicant’s appeal, finding that he had failed to credibly demonstrate his asylum claim. It noted that it was not apparent why the applicant’s age – he was 24 years old at the time of his interviews – or level of education should lead to different conclusions as to the credibility of his account, and considered that his two statements concerning the end of his schooling, either in 2005/2006 or 2007/2008, could not be reconciled with each other or with his student identity card, which indicated that he was a student in 2010. The court also considered that the applicant’s statements regarding the time and content of his military training lacked substance. It commented that, even if the applicant had left the military shortly after reporting for duty, he could be expected to provide a detailed and specific account of it, given that he merely had to talk about something which he had experienced in person. Viewing the duration and dates of the applicant’s detention as key elements of his asylum claim, the court noted that a discrepancy of eight months as regards the duration, and the different dates given in the first two hearings as regards the end of the detention, constituted fundamental contradictions which could not be resolved by his references to conditions of poor hygiene and being let outside twice a day to relieve himself. 29. Referring to its judgment in an earlier case concerning Eritrea, the court reiterated that the only way to exit Eritrea legally was with a valid passport and an additional exit visa, and that the practice concerning the issuance of an exit visa was very restrictive. They were issued to a few people who were considered loyal, in exchange for payment of significant sums. As a rule, children aged 11 or more, men under the age of 54, and women under the age of 47, were not granted exit visas. People attempting to leave the country without authorisation risked their life, as the border guards were under orders to prevent attempts to flee by way of targeted shots (a “shoot to kill” policy), in addition to imposing punishment as set out by law. The Eritrean Government viewed illegal exits as an indication of political opposition, and tried to get both the reduction in defence readiness and the mass exodus under control through draconian measures. 30. The Federal Administrative Court noted that finding that the applicant had concealed the true circumstances of his departure was not in itself sufficient to conclude that he had left the country legally. However, the burden of proof did not shift to the authorities, and the applicant was required to provide a substantiated and consistent account concerning the reasons for and circumstances of his departure. Considering that his account given at first-instance level was not credible, which also raised doubts about his overall credibility, and that he had not provided comprehensible explanations in his submissions on appeal, the court found that the applicant had failed to credibly demonstrate that he had left Eritrea illegally. 31. The Federal Administrative Court added that the applicant could not rely on the letter from UNHCR stating that he was registered in the Hitsas refugee camp in November 2013, since the conditions in Ethiopian refugee camps were chaotic and, in the case of people of Eritrean origin, there was no comprehensive assessment of whether they faced persecution at the time they were registered in those camps. This was supported by the wording of the registration, which read that it constituted a recognition prima facie that the applicant was a refugee within the mandate of UNHCR. 32. Furthermore, the court found that the applicant’s removal was possible, permitted and reasonable within the meaning of section 83(1)-(4) of the Aliens Act. In particular, the applicant was a young man in good health who had a support network in his hometown, notably his wife and their son, who lived in the same house as his parents. 33. On 19 May 2016 the State Secretariat for Migration set a deadline for the applicant’s voluntary departure, which passed on 17 July 2016. | 0 |
test | 001-168633 | ENG | POL | ADMISSIBILITY | 2,016 | IWANOWICZ v. POLAND | 4 | Inadmissible | András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The applicant, Mr Krystian Iwanowicz, is a Polish national who was born in 1985 and lives in Głuchołazy. He is represented before the Court by Ms D. Gembara, a lawyer practising in Ząbkowice Śląskie. The Polish Government (“the Government”) are represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant’s mother, Ms G.I., who was born in 1963, suffered from schizophrenia. She received psychiatric treatment over a period of more than twenty years. In 2011 she was diagnosed with epilepsy. 4. The applicant was his mother’s carer. Since her condition had been deteriorating for some time, on 24 September 2012 the applicant called an ambulance and requested that his mother be taken to a psychiatric hospital. However, she refused to undergo treatment. On 25 September 2012 the applicant filed an application with the Prudnik District Court seeking an order for the involuntary medical treatment of his mother. 5. On 28 September 2012 at about 3.20 p.m. the applicant’s mother was admitted to the psychiatric ward of the Głuchołazy Hospital. 6. According to the applicant, on the same day at about 5 p.m. he brought his mother’s personal belongings to the hospital. He was told by the hospital staff that his mother was being bathed and was asked to leave her belongings. 7. On 30 September 2012 the applicant was given the information that his mother had died on 28 September 2012. 8. On an unspecified date the hospital carried out an autopsy. 9. A record card documenting his mother’s death (karta zgonu) was drawn up on 4 October 2012 and signed by Dr E.S. It did not specify the exact time of death. The stated cause of death was schizophrenia, hypertrophic cardiomyopathy (kardiomiopatia przerostowa) and sudden cardiac arrest. 10. On 5 October 2012 the applicant filed a criminal complaint with the Prudnik District Prosecutor’s Office. The applicant submitted that his mother had been hospitalised in 2011 in connection with her epilepsy but had not been diagnosed with any other condition. She had never been diagnosed or treated for any heart-related condition and medical examinations carried out by a GP and the emergency medical service in the days directly preceding her admission to hospital did not indicate any irregularities. The applicant claimed that between 1 and 3 October 2012 he was given contradictory information by the hospital with regard to the circumstances, timing and cause of his mother’s death. The applicant also claimed that Dr E.S., who signed the record card, had been unsure about the cause of death stated on that document. 11. On 8 October 2012 the Prudnik District Prosecutor instituted an investigation into involuntary homicide (Article 155 of the Criminal Code). 12. On 8 October 2012 the prosecutor ordered that a post-mortem be carried out and that a report be prepared by a forensic expert, H.S., with a view to determining the cause of death. On the same date the prosecutor ordered that forensic experts examine samples of body liquids and tissues removed from the applicant’s mother’s body. 13. On 9 October 2012 the prosecutor ordered the hospital to produce the applicant’s mother’s medical records. On the same date, the prosecutor questioned the applicant. The applicant stated that he had received conflicting answers from several doctors regarding the cause and circumstances of his mother’s death and it was for that reason that he had filed a criminal complaint. 14. On 12 October 2012 a post-mortem was carried out. The forensic expert secured samples of body liquids and tissues for further examination. 15. On 31 October 2012 the prosecutor ordered that another forensic expert should examine samples of tissues and prepare a report. 16. On 17 December 2012 the forensic expert H.S. submitted his report to the prosecutor. On the basis of the hospital records and the autopsy carried out at the hospital, the forensic expert established that the applicant’s mother had been admitted to the hospital on 28 September 2012 at 3.23 p.m. Shortly after, she had suffered an epileptic seizure and a cardiac arrest. A doctor was called to help at about 4 p.m. The applicant’s mother was lying unconscious in bed. Resuscitation was carried out first by nurses and then by a doctor. At about 4.30 p.m. the doctor pronounced the applicant’s mother dead. 17. The forensic expert noted that the autopsy carried out at the hospital established that the applicant’s mother had suffered from atherosclerosis (miażdżyca tętnic), hypertrophic cardiomyopathy and oedema, amongst other complaints. 18. On the basis of the post-mortem and other examinations, together with the hospital records, the forensic expert concluded that the applicant’s mother’s death had been caused by respiratory and circulatory failure. The origin of this failure could not be conclusively determined. The forensic expert found no grounds for contradicting the assumption that the failure could have been related to the epileptic seizure. 19. The applicant submitted that the post-mortem had been carried out too late. He also claimed that the medical records concerning his mother’s condition contained a number of discrepancies. The hospital’s autopsy report mentioned atherosclerosis, whereas his mother’s medical records did not state that she was suffering from this condition. The applicant submitted that there was no mention in the medical records of the autopsy carried out at the hospital and the hospital had not sought his consent for this procedure. 20. The prosecutor heard evidence from several witnesses, including doctors, nurses and other hospital employees as well as the applicant’s mother’s former husband. 21. On 25 April 2013 the applicant and his lawyer consulted the case file of the investigation. 22. On 16 May 2013 the Prudnik District Prosecutor discontinued the investigation. He found that there were no grounds for suspecting that the offence of involuntary homicide had been committed. 23. The prosecutor established the following facts. The applicant’s mother was diagnosed with schizophrenia twenty-seven years ago. In 2011 she was also diagnosed with epilepsy. On 24 September 2012, having observed his mother’s worsening condition, the applicant called the emergency medical service to have his mother taken to hospital, but the personnel who responded to the call refused to do as he asked. The condition of the applicant’s mother continued to deteriorate. She refused to take her medication, became aggressive, and started suffering from delusions. The same situation prevailed two days later. On 28 September 2012 at about 3.20 p.m., at the applicant’s insistence, the emergency service transported the applicant’s mother to Głuchołazy Hospital. At about 5 p.m. on the same day the applicant brought his mother’s personal belongings to the hospital. He was told that his mother was being bathed. On 30 September 2012 the applicant learnt that his mother had died two days earlier. 24. The prosecutor secured the medical records and the body of the applicant’s mother for the purposes of forensic examination. As regards the results of the post-mortem and further medical examinations, the forensic expert did not establish any cause of death other than cardiac arrest related to the epileptic seizure. He also established that the applicant’s mother had some broken ribs but that this injury had been sustained after her death. 25. The prosecutor noted that the forensic expert’s report clearly indicated the cause of death of the applicant’s mother and did not point to any negligence in her treatment after admission to the hospital. 26. The prosecutor heard evidence from medical personnel and doctors at the hospital. Those witnesses confirmed that the applicant’s mother had been pronounced dead at 4.30 p.m. on 28 September 2012. She had been admitted to the hospital at about 3.30 p.m. and was then bathed and changed. After being transferred to a hospital room, the applicant’s mother started to have a seizure. The medical personnel immediately reacted and began resuscitation. However, the resuscitation was not successful and after about 30 minutes of efforts the applicant’s mother was pronounced dead. 27. The prosecutor sought to clarify when the applicant had come to the hospital on the day in question. The hospital staff testified that the applicant had come to the hospital before 4 p.m. Other witnesses, including the applicant, asserted that he had come to the hospital at 5 p.m. In the light of evidence provided by mobile phone traffic records, the prosecutor found that the applicant’s assertion that he had come to the hospital at 5 p.m. when his mother was already dead − was not credible. 28. In conclusion, the prosecutor decided to discontinue the investigation, having found no evidence to indicate that the treatment given to the applicant’s mother was in any way inappropriate. 29. The applicant appealed. He argued that the evidence gathered in the investigation was not sufficient to justify the impugned decision and that a number of the prosecutor’s findings had been incorrect. 30. The applicant submitted that even assuming – as was accepted by the prosecutor – that his mother had died from cardiac arrest related to an epileptic seizure the prosecutor had not looked into what had caused the cardiac arrest. His mother was a relatively young person (forty-nine years old). She had suffered from schizophrenia but never complained of any other health issues (in particular heart-related) and had never been treated for anything other than her psychiatric illness. Prior to her admission to the hospital she had had only two epileptic seizures. The applicant also argued that the prosecutor did not investigate the cause of his mother’s broken ribs. He proposed that a team of experts be appointed in connection with the case in order to investigate the cause of his mother’s death. 31. The applicant argued that he had been misled by the hospital staff from the outset and that the information he had been given by the hospital had been inaccurate. He alleged that when he arrived at the hospital on 28 September 2012 at 5 p.m., his mother was already dead but he had not been informed of this. 32. On 27 June 2013 the Prudnik District Court dismissed the applicant’s appeal and upheld the prosecutor’s decision. The applicant was present at the hearing. 33. The court noted that the investigation had been aimed at clarifying the circumstances of the applicant’s mother’s death, in particular – in view of the conflicting information concerning the cause of death – the time at which it occurred, and the deceased’s prior state of health. 34. The court found that the prosecutor had correctly established the facts and properly assessed the ample evidence gathered in relation to the case. In the court’s view, the analysis of the evidence did not suggest that the offence of involuntary homicide had been committed. 35. The court agreed with the results of the post-mortem and the forensic expert’s report, which was clear in its conclusion that the applicant’s mother had died as a result of respiratory and cardiac failure connected to an epileptic seizure. There was no need to prepare another expert report since the initial one was comprehensive, thorough and unambiguous. In addition, the medical records indicated that the applicant’s mother had previously suffered from epileptic seizures and that in 2011 she had been diagnosed with epilepsy. As regards the forensic report, the court observed that it stated that the damage to the applicant’s mother’s ribs could have resulted from the resuscitation efforts. 36. On the basis of the medical records and the evidence provided by the medical personnel, the court found that the applicant’s mother had been adequately treated by the hospital. It noted that the applicant’s mother had received treatment immediately after her epileptic seizure. 37. The court observed that the prosecutor had investigated the question of the exact timing of the applicant’s visit to the hospital, which was, in any event, not the most relevant factor in determining the circumstances surrounding the death of the applicant’s mother. 38. The court held that the death of the applicant’s mother had not resulted from the actions of third parties. The court also found that no offence under Article 162 § 1 of the Criminal Code (failure to render assistance to a person in a life-threatening situation) had been committed. 39. Article 155 of the Criminal Code provides as follows: “Anyone who unintentionally causes the death of a human being shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.” | 0 |
test | 001-162216 | ENG | MKD | CHAMBER | 2,016 | CASE OF VASILEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano | 5. The applicant was born in 1963 and lives in Kavadarci. 6. In April 2000, while criminal proceedings were pending against a certain Mr I.A., the latter sold a lorry (“the lorry”) to a company, M. 7. On 13 June 2000 the Skopje Court of First Instance (“the Trial Court”) convicted Mr I.A. of smuggling nearly 9 tonnes of sugar, which he had transported in the lorry in November 1997. According to the Government, the court dismissed the prosecutor’s application to have the lorry confiscated, given that Mr I.A. had stated that he had already sold it. The court considered that the conditions for confiscation of the lorry under Article 68 (2) of the Criminal Code 1996 (see paragraph 21 below) had not been fulfilled: specifically it had not been established that the lorry could be used again to commit an offence; that the confiscation had been necessary for the protection of safety or for reasons of ethics; and that the lorry had been specially adjusted for the commission of specific type of offences. On 20 November 2001, following separate appeals by Mr I.A. and the public prosecutor, the Skopje Court of Appeal found the public prosecutor’s application immaterial (беспредметна) and quashed all aspects of this judgment. 8. On 17 September 2003 the Trial Court convicted Mr I.A. in absentia. It fined him and ordered, under Article 278 (3) of the Criminal Code 1996, the confiscation of the lorry and the sugar (“the confiscation order”). In the absence of an appeal, the judgment became final on 29 October 2003. 9. On 6 September 2004 the company M. sold the lorry to the applicant, who later registered the lorry in his name. 10. On 12 June 2006 the Kavadarci Court of First Instance (“the first-instance court”) enforced the confiscation order of 17 September 2003 against the applicant and issued a record of enforcement (записник за извршување). 11. On 15 November 2006 the applicant objected to the enforcement of the confiscation order, arguing that Mr I.A. had died on 21 March 2005 and that the confiscation order accordingly could not be enforced. There had been no injunction restricting the sale of the lorry. He had been the lawful owner and he had been making his living using the lorry. Lastly, he stated that he had sought, in separate civil proceedings, return of the lorry (see paragraph 14 below). 12. On 20 November 2006 the execution-of-sanctions judge of the Trial Court rejected the objection as inadmissible, finding that the applicant had no procedural standing. It found that the confiscation order had been enforced in accordance with section 355 of the Enforcement of Sanctions Act (see paragraph 26 below). It further found that the applicant, as the third person from whom the lorry had been confiscated, could assume his rights under section 129(5) of the Criminal Proceedings Act (see paragraph 25 below). 13. The applicant appealed. On 6 December 2006 a three-judge panel of the Trial Court dismissed his appeal reiterating that he had no right to object to the enforcement of the confiscation order. However, he had been entitled to claim, in civil proceedings, return of the lorry. Civil courts had jurisdiction, under section 129(5) of the Criminal Proceedings Act, to reverse a final confiscation order issued in criminal proceedings and order the return of the confiscated item. 14. On 19 June 2006 the applicant submitted a civil claim seeking that the first-instance court declare him to be the owner of the lorry and to order the State to restore it to his possession. In the case of failure of his first claim, he sought that the State would reimburse him for the upgrades made to the lorry. In this latter context, he identified the upgrades that he had installed in the lorry. He further maintained that he was the bona fide and lawful owner of the lorry. He argued that the authorities had failed to seize the lorry immediately after the offence had been committed (на лице место) and to note a ban on the sale of the lorry on its registration certificate. As he was making his living off the lorry, he requested an injunction restricting the State from selling or otherwise disposing of the lorry until the final resolution of the dispute. 15. By decisions of 29 June and 16 November 2006 respectively, the first-instance court and the Skopje Court of Appeal (“the second-instance court”) dismissed the applicant’s application for an injunction finding no evidence that in the absence of such a measure his claim would be considerably affected or that he would sustain irreparable damage. 16. On 2 March 2007 the applicant informed the first-instance court that Mr I.A. had died in Austria in 2005. 17. On 10 May 2007 the first-instance court dismissed the applicant’s claim. It established that Mr I.A., who knew that the lorry could have been confiscated, had sold it to the company M. At the relevant time, neither the manager of M. nor the applicant had known that the lorry had been used in the commission of the offence and that it had been subject to a confiscation order. Relying on Articles 68 and 278 (3) of the Criminal Code (see paragraphs 21 and 22 below), the court stated that: “Confiscation is a safety measure, the typical aim of which is to remove conditions which are convenient for the commission of offences, and it is a condition for ordering such a measure that the offender has been sentenced, as in the present case. The court considers that it is mandatory to confiscate the [lorry] under the afore-mentioned provisions, because this safety measure has a wider influence [in the sense of] general deterrence of all future offenders of this type of offences, and otherwise the offenders would be encouraged, after the offence has been committed, to dispose of the means with which they committed the offence and, thus, to even acquire pecuniary benefit; furthermore that would have a negative influence on the ethics of the wider public, [that is to say] on general deterrence ... ... Given that from the evidence and the above-mentioned statutory provisions it has been established that the [lorry] in question was confiscated in favour of [the respondent State] in lawful proceedings, the court finds that the [respondent State] has therein obtained ownership of the [lorry] in question on the basis of a final and enforceable judgment ... in accordance with sections 112(2) and 154 of the [Property Act.] For these reasons, the court dismisses the [applicant’s] main claim and also the alternative claim, because it concerns upgrades made to the [lorry]. On the other hand, the court considers that the [applicant], as the bona fide owner, can be indemnified for the value of the entire [lorry], including the upgrades, but solely from the offender, [Mr I.A.], in accordance with Article 68 (3) of the [Criminal Code], and not from the [respondent State] ... The court dismisses as groundless the argument that at the moment of confiscation of the [lorry] in question it was not owned by [Mr I.A.] but by the [applicant] as the bona fide possessor (совесен владетел), given that from the evidence it was established that when the offence was committed the [lorry] was owned by [Mr I.A.] and the safety measure confiscation of the [lorry] was issued on those grounds. The court also considers groundless the [applicant’s] representative’s arguments that under section 129(5) of the Criminal Proceedings Act the final decision for confiscation of the [lorry] could be amended with a decision in civil proceedings if there were a dispute concerning the ownership of the confiscated items, given that this provision would have been applied if the [lorry] had been sold to the [applicant] before the offence was committed and had, under any legal basis, remained in the factual possession of the convicted [Mr I.A.] and he, after having sold it, committed the crime; but in the present case it is vice versa; firstly the offence was committed and then the [lorry] was sold.” 18. The court also established that the applicant had upgraded the lorry to the value of 69,150 Macedonian denars (MKD). Furthermore, on the basis of the applicant’s and two witnesses’ statements, the court established that the applicant had bought the lorry for 4,300 euros (EUR). 19. The applicant appealed. He stated that he had previously requested that the first-instance court obtain evidence from the Ministry of the Interior which would confirm that Mr I.A. had died in Austria in 2005. He argued that the domestic authorities had failed to ban Mr I.A. from disposing of the lorry or to seize the lorry at the time the offence had been discovered. He also argued that he was the bona fide owner and that he had obtained title to the lorry by adverse possession (одршка). The first-instance court had incorrectly applied section 129(5) of the Criminal Proceedings Act. The lorry had been confiscated nine years after the offence had been committed. The State had been unlawfully enriched by the value of the upgrades installed by the applicant. 20. On 19 October 2007 Skopje Court of Appeal (“the second-instance court”) dismissed the applicant’s appeal finding no grounds to depart from the established facts and reasons given by the lower court. On 13 November 2007 this judgment was served on the applicant. | 1 |
test | 001-175466 | ENG | RUS | COMMITTEE | 2,017 | CASE OF YELISEYEV v. RUSSIA | 4 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) | Alena Poláčková;Helen Keller;Pere Pastor Vilanova | 4. The applicant was born in 1967 and lives in Kalinkovichi. 5. On 29 March 2008 the applicant was stopped by a Russian customs officer at the border crossing into Belarus. After having checked the applicant’s documents, the officer informed the applicant that, having failed to declare his Opel car when entering Russia, he had infringed the Russian customs regulations. The officer instituted administrative proceedings against the applicant and impounded his car. 6. On 11 June 2008 Colonel B., Head of the Novozybkov Customs Post of the Bryansk Customs Office, examined the applicant’s case. He found the applicant liable for having failed to declare the car and ordered him to pay a fine in the amount of 35,509.50 Russian roubles (RUB). He further ruled that the applicant’s car, which had been impounded by customs, should be returned to the applicant. The applicant appealed. 7. On an unspecified date the Novozybkov Town Court of the Bryansk Region fixed the hearing for 8 August 2008. 8. On 8 August 2008 the Town Court examined the applicant’s appeal and upheld the decision of 11 June 2008. The court heard the case in the applicant’s absence. In the operative part of the judgment, the court advised the applicant of his right to appeal against the judgment adopted by the Town Court. 9. According to the applicant, the letter from the Town Court notifying him of the date and time of the court hearing reached him on 9 August 2008. 10. On 26 September 2008 the applicant received a copy of the Town Court’s judgment of 8 August 2008 by post. 11. On an unspecified date the applicant lodged an appeal with the Bryansk Regional Court. On 13 November 2008 the Regional Court sent a letter to the applicant informing him that his appeal was dismissed. 12. The subsequent request by the applicant for supervisory review was dismissed by the Supreme Court of the Russian Federation on 26 January 2009. 13. On 20 August 2009 the Acting Head of the Novozybkov Customs Post of the Bryansk Customs Office discontinued the enforcement proceedings in respect of the decision of 11 June 2008. He noted that the applicant was a foreign national and had no assets or known place of residence in the Russian Federation and that it was impossible to enforce the decision of 11 June 2008 on account of the expiry of the relevant time-limit. 14. On 24 August 2009 the Bryansk Customs certified that (1) the decision concerning the applicant’s administrative liability had come into force on 15 July 2009; and (2) the applicant had failed to reclaim his car within a month of that date. 15. On an unspecified date the regional agency in charge of the federal property applied to the Town Court seeking to reclaim the applicant’s car as bona vacantia. 16. On 12 November 2009 the Town Court granted the agency’s claims in full. It took into account that, as claimed by the agency, the applicant had been repeatedly summoned to the regional customs office to pick up his car. According to the documents submitted by the Government, the court decided to hear the case in the applicant’s absence given that he had been duly notified of the hearing and chose not to attend. The applicant did not appeal. 17. On 2 June 2010 the judgment of 12 November 2009 was enforced. 18. On 19 March 2012 the leaders of the Strategy-31 movement notified the Mayor of Moscow of their intention to organise a rally (from 6 to 8 p.m.) at Triumfalnaya Square in the centre of Moscow and a march (from 8 to 8.30 p.m.) from Triumfalnaya Square down Tverskaya Street to Manezh Square on 31 March 2012 (Saturday). Approximately 1,500 people were expected to attend. The events were organised to promote the right to peaceful assembly as set forth in Article 31 of the Constitution of the Russian Federation and the freedom of Parliamentary elections in Russia. 19. On 20 March 2012 the Government of Moscow refused to agree on the venues for the rally and the march. According to the authorities, there was archeological and construction work going on in Triumfalnaya Square and the march, according to the indicated route, would “disrupt the normal functioning of the city’s infrastructure and traffic [and] infringe the rights and interests of people who would not take part [in the rally and the march]”. The authorities further suggested two alternative venues for the planned events, also located in the centre of Moscow. 20. On 29 March 2012 the leaders of the Strategy-31 movement informed the Mayor of Moscow that the rally would take place at the venue indicated in their notification of 19 March 2012. 21. On 31 March 2012 the rally was held as planned by its organisers at Triumfalnaya Square. The applicant took part. At 6.30 p.m. he was arrested and brought to the police station. According to the arrest record, the applicant had taken part in an unauthorised gathering and chanted slogans such as “Down with Putin”, “Let us stop the dictatorship” and “Fascism shall not pass”. 22. On 17 April 2012 the Justice of the Peace of Precinct no. 367 of the Tverskoy District of Moscow found that the rally held on 31 March 2012 had been organised in contravention of the existing procedure and that the applicant had taken part in it without having verified whether it had been legitimate. The court found the applicant administratively liable for violation of the established procedure for organising a public assembly and fined him RUB 500. The applicant appealed. 23. On 21 May 2012 the Tverskoy District Court of Moscow upheld the decision of 17 April 2012 on appeal. | 1 |
test | 001-158149 | ENG | BGR | CHAMBER | 2,015 | CASE OF RIZA AND OTHERS v. BULGARIA | 3 | Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Vote);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Stand for election);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 6. The 101 applicants, whose names are appended, are Bulgarian nationals of Turkish origin and/or of Muslim faith who live or have lived in Turkey. They all exercised their right to vote at the 2009 Bulgarian general elections in 17 of the polling stations set up in Turkish territory, the election results in which were subsequently contested by the RZS political party and nullified by the Bulgarian Constitutional Court. 7. According to the official statistics from the census carried out in Bulgaria in 2011, 588,318 persons stated that they were ethnic Turks, amounting to 8.8% of the persons who answered that question, and 577,139 persons stated that they were of Muslim religion. Since the late 1980s, the members of those communities have been involved in major migrations leading many of them to settle in Turkey. The Court has no official information on the exact number of Bulgarian citizens who are ethnic Turks or Muslims living temporarily or permanently in Turkey. Estimates of that number vary considerably, generally ranging from 300,000 to 500,000 individuals, in all the age brackets. 8. The DPS was founded in 1990. Its statutes define it as a liberal political party endeavouring to help unite all Bulgarian citizens and to protect the rights and freedoms of minorities in Bulgaria as guaranteed by the Constitution and national legislation, as well as by the international instruments ratified by the Republic of Bulgaria. 9. The DPS has put up candidates for all general and local elections in Bulgaria since its inception. It has won seats in the national Parliament in all the general elections held since 1990. Between 2001 and 2009 it took part in two successive coalition governments. Several of its leaders and members belong to the Bulgarian Turkish and Muslim minorities. 10. Mr Riza was born in 1968 and lives in Sofia. A DPS member, he is also one of its Vice-Presidents and a member of the party’s central executive bureau. He is currently a DPS deputy of the National Assembly. 11. These two applicants submit that most of the Bulgarian citizens currently living in Turkey have voted for the DPS at all the general elections held over the last twenty years. 12. By Decree of 28 April 2009 the Bulgarian President set 5 July 2009 as the date of the elections to the 41st National Assembly. The electoral law laid down a new hybrid electoral system: 31 deputies were to be elected on a first-past-the-post basis in single-member constituencies, and 209 deputies were to be elected on a proportional basis at national level in 31 multiple-member constituencies. 13. Bulgarian citizens living abroad were entitled to vote in the general elections, but only for parties and coalitions, and their votes were taken into account in the proportional distribution of sears among the different political formations at the national level ... Having obtained the consent of the competent authorities in the countries concerned, the Bulgarian diplomatic representations opened 274 polling stations in 59 countries, 123 of them in Turkey. 14. On 20 May 2009 the Central Electoral Commission registered the DPS as participating in the general elections. The DPS presented lists of candidates in several single- and multiple-member constituencies. It was also included on the ballot paper designed for voting by Bulgarian citizens living abroad. Mr Riza was included in second position on the list of his party’s candidates for the 8th multiple-member constituency (Dobrich). 15. Thirteen of the 101 applicants (see appended list) (nos., 13, 17, 21, 26, 30, 39, 51, 59, 74, 75, 89 and 94) submitted that they had all personally submitted prior declarations of intention to vote to the Bulgarian diplomatic representations in Turkey. The Bulgarian diplomates has asked them to take part in local electoral committees in Istanbul, Bursa, Çerkezköy, Çorlu and İzmir as presidents, secretaries or ordinary members, which they had agreed to do. On 4 July 2009 they had been invited to the offices of the Bulgarian diplomatic and consular representations, where Bulgarian diplomats had informed them about the formalities to be complied with on election day, and in particular how to draw up the electoral rolls. Some of the applicants affirmed that they had only been given one instruction on that subject, to the effect that persons attending the polling station on election day without preregistration should be included on the additional pages of the electoral roll, and that the last name added on election day should be suffixed with a “Z”. 16. The 13 applicants submitted that their names had not been included on the list at the polling station where they were to function as members of the electoral committee. They had all voted in their respective polling stations by registering on election day and signing opposite their names and forenames. Furthermore, they submitted that they had carefully indicated their choices on their ballot papers, without any other type of indication, and slotted the papers into the ballot box. 17. The 13 applicants also pointed out that there had been no particular problems on election day. Their respective electoral committees had been made up of Bulgarian nationals living in their respective towns and representatives of the Bulgarian Ministry of Foreign Affairs. Some of the polling stations had been visited by the Bulgarian Ambassador and Consul General, and others had been reported on by Bulgarian public television and radio teams, and no irregularities had been noted. At the close of polling on election day the local committees had counted the votes, filled in the requisite report forms and submitted the electoral documents to the Bulgarian diplomatic representatives. 18. The other 88 applicants submitted that at the material time they had been living in Turkey. Some of them had sent prior statements of intention to vote to the Bulgarian diplomatic representations, but they had never been informed in return of which polling stations to vote in. On election day all the applicants in question had attended the nearest polling stations in their respective towns. Their names had been handwritten into the electoral rolls, and after voting they signed opposite their names. 19. According to information available on the Central Electoral Commission website (http://pi2009.cik.bg), following the 5 July 2009 elections, six political parties and coalitions garnered more than the minimum 4% of votes cast and were included in the process of proportional distribution of seats in the National Assembly: the GERB party, the Coalition for Bulgaria, the DPS, Ataka, the Blue Coalition and the RZS party. 20. The DPS obtained a total of 610,521 votes, or 14.45% of the valid votes, which made it the country’s third political party. It garnered 61.18% of the out-of-country voting, that is to say 93,926 votes, 88,238 of which were cast in polling stations in Turkish territory. It came out well ahead in the 17 polling stations – in Istanbul, Bursa, Çerkezköy, Çorlu and İzmir – in which the 101 applicants had voted. By decision of 7 July 2009 the Central Electoral Commission assigned the DPS 33 parliamentary seats under the proportional representation system, together with a further five seats won in the first-past-the-post constituencies. 21. Following the apportionment of seats won by the DPS at the national level in the 31 multiple-member constituencies, the party won only one seat in the 8th constituency. However, another political formation, the Blue Coalition, having appealed to the Constitutional Court and the votes cast in a polling station in the 19th constituency having been recounted, the Central Electoral Commission conducted a reassignment of the seats won at the national level among the 31 multiple-member constituencies. This gave the DPS a second seat in the 8th constituency, where Mr Riza was in second place on his list of candidates, and removed one of the two seats initially won in the 19th multiple-member constituency. On 12 October 2009 Mr Riza was declared elected to the National Assembly. He was sworn in as a deputy and became a member of his party’s parliamentary group. On 20 January 2010 he was elected member of the Parliamentary Commission on Ethics and the Fight against Corruption and Conflicts of Interest. 22. On 21 July 2009 the President and three other members of the RZS (Red, Zakonnost, Spravedlivost – “Order, Law and Justice”), a right-wing conservative party, requested the Attorney General to lodge with the Constitutional Court the appeal provided for in section 112 of the Electoral Law in order to annul the election of seven DPS deputes on the grounds of several irregularities which had occurred in the 123 polling stations operating in Turkish territory. The four appellants complained of several breaches of electoral legislation in connection with the setting up of the said polling stations and their handling of the voting: they claimed that the rule requiring a polling station to be opened for every one hundred prior statements of intention to vote had been flouted in Turkish territory; some electors had exercised their voting rights once in Bulgarian national territory and again in a polling station in Turkish territory; incorrect information had been included in the reports drawn up by the electoral committees concerning the number of voters in the polling stations in question; 23 of them had allegedly dealt with over 1,000 voters, which would have been a practical impossibility in view of the opening hours of the polling station and the time required to complete the requisite formalities for each voter, and the electoral committees attached to those polling stations had, in certain cases, reportedly allowed persons into the voting booths without valid Bulgarian identity papers. The appellants invited the Constitutional Court to verify the authenticity of the prior voting requests issued in Turkish territory, to check the electoral rolls drawn up in the region of Bulgaria where the individuals wishing to vote in Turkey had their permanent addresses, and to declare null and void the records drawn up by the electoral committees responsible for the polling stations opened in Turkish territory. According to the appellants, the large number of irregularities committed in the voting procedure in the 123 polling stations in question necessitated the annulment of the votes cast in them, which annulment would have changed the election results and led to the ousting of seven DPS deputies from their seats. 23. On 22 July 2009 the Attorney General transmitted the request submitted by the President and three other members of the RZS party to the Constitutional Court. 24. On 11 August 2009 the Constitutional Court declared the appeal admissible and designated as parties to proceedings the National Assembly, the Council of Ministers, the Ministry of Foreign Affairs, the Central Electoral Commission, the National Department responsible for Citizens’ Civil Status Data and two non-governmental organisations. It sent copies of the request and the relevant documents to the parties to proceedings and gave them a deadline of twenty days to submit their observations on the merits of the case. That court asked the National Department responsible for Citizens’ Civil Status Data to ascertain how many voters had voted in the national territory and then again in Turkish territory, and invited it to submit certified copies of the lists of persons having voted and the reports on voting drawn up by the polling stations in Turkish territory. The President of the Constitutional Court, R.Y., and Judge B.P. signed the admissibility decision, while issuing a separate opinion. They argued that the Attorney General should have submitted a reasoned request to the Constitutional Court rather than merely transmitting the request for annulment lodged by the RZS political party. 25. On 18 September 2009 the DPS parliamentary group of the National Assembly presented its written observations on the case. It first of all disputed the admissibility of the appeal lodged by the four appellants, arguing that the Attorney General had failed to conduct a prior assessment of the merits of the said request, merely transmitting it to the Constitutional Court, that the appeal had been lodged belatedly, after the deputies in question had been sworn in, and that the seven DPS deputies mentioned in the request had been designated randomly since the out-of-country votes had been used solely to apportion the seats among the various parties at the national level and not for the benefit of any given list of candidates. Secondly, the DPS parliamentary group submitted that the request had been ill-founded for the following reasons: the legal conditions for setting up the 123 polling stations in question had been fulfilled; there had been very few cases of double voting, and voting secrecy precluded determining for which party exactly those persons had voted; the number of persons included on the additional electoral rolls on election day had been higher than that of preregistered voters because the number of persons wishing to exercise their voting rights had far exceeded the number of voters having previously declared their intention to vote outside the country; and in several of the out-of-country polling stations the number of persons voting had exceeded one thousand, and that had not been the case only in the polling stations in Turkey. 26. On 6 October 2009, at the request of the RZS party, the Constitutional Court ordered a threefold expert assessment to provide the answers to the following questions: (i) how many prior statements of intention to vote were submitted for the territory of Turkey, from which towns were they sent, and did their number correspond to the number of polling stations set up? (ii) were the identity papers of electors voting in the 123 polling stations valid? (iii) did the numbers of electors voting recorded in the minutes drawn up on election day correspond to the total number of preregistered electors and persons registered on the rolls on election day, and were there any polling stations in which none of the preregistered persons exercised their right to vote? (iv) what was the maximum number of persons who could vote in a polling station over election day? The three experts were given leave to consult all the documents on elections in Turkish territory which the diplomatic service of the Ministry of Foreign Affairs had submitted to the Central Electoral Commission. 27. The expert report was submitted to the Constitutional Court some time later. It indicated that there had been a total of 27,235 prior declarations of intention to vote in respect of the territory of Turkey: 5,127 of those declarations had been received at the Bulgarian Embassy in Ankara, 15,556 at the Consulate General in Istanbul and 6,552 at the Consulate General in Edirne. The Bulgarian diplomatic services had opened 28 polling stations in the Ankara region, 72 in the Istanbul region and 23 in the Edirne region. The experts had noted that some polling stations had been opened without the threshold of 100 declarations of intention to vote having been reached. 28. The experts were unable to answer the second question, on the validity of the Bulgarian identity papers of those voting in Turkey. They pointed out that it would have been very time-consuming to carry out the necessary verifications and would have required access to the population database administered by the Ministry of the Interior. Furthermore, in several cases the local electoral committees had merely mentioned the type of document presented, i.e. an identity card or passport, without recording the document number. 29. As regards the third question, the experts replied that there had been some very slight differences – between one and five persons – between the numbers of persons voting recorded in the polling station minutes and the numbers of voters included in the electoral rolls. According to the experts, that might have been due to inadvertent omissions. Moreover, they observed that the additional electoral lists in 116 polling stations, which had been drawn up on election day and contained data on the persons who had turned out without having been preregistered, had not been signed by the chair or secretary of the local electoral committee. The experts noted that the personal data on electors contained in those lists had been handwritten, apparently unhurriedly, and those entries would have taken a considerable length of time to write. Furthermore, in some of the polling stations none of the preregistered persons had turned out to vote. In some other polling stations there had been no minutes on file, or else the first page of the minutes had been missing. 30. As regards the fourth question put by the Constitutional Court, the experts concluded, from a reconstitution of the requisite formalities in dealing with voters and their ballot papers, that the minimum time required for voting would have been about fifty seconds. Having regard to the total duration of election day, that is to say thirteen hours, the experts estimated that a polling station could deal with a maximum of 936 voters. The maximum number of persons voting as thus calculated had been exceeded in 30 of the polling stations operating in Turkey. 31. The National Department responsible for Citizens’ Civil Status Data presented the Constitutional Court with the results of its inquiry into cases of double voting. The department pointed out that 174 persons had voted several times and that 79 cases of double voting had been noted in Turkey. 32. On 27 January 2010 the Constitutional Court decided to ask the three experts to examine an additional point: it asked them to recalculate the election results after deducting all the votes cast in 23 polling stations and some of those cast in another polling station, all located in Turkish territory. The court’s request covered: (i) all the votes cast in 18 polling stations where none of the preregistered voters had voted and where the additional lists of those voting had not been signed by the members of the local electoral committees and therefore lacked the probative value of official documents; (ii) all the votes cast in a polling station in which the minutes on voting were missing; (iii) all the votes cast in two other polling stations where the first page of the minutes was missing; (iv) all the votes cast in a polling station where the list of preregistered voters was missing; (v) 86 votes cast for the DPS by persons included in the unsigned additional list at another polling station where that party had garnered all the votes and where 124 preregistered persons had voted; (vi) all the votes cast in another polling station where the list of preregistered voters had not been put on file and where the additional electoral list had not been signed by the members of the local electoral committee. 33. On 2 February 2010 the experts submitted their supplementary conclusions to the Constitutional Court. In the introductory section of the report they pointed out that they had been mandated to deduct from the outcome of the election the votes cast in polling stations where: (i) none of the preregistered voters had voted and where the additional lists of those voting had not been signed by the members of the local electoral committees; (ii) the minutes were not put on file; (iii) the first page of the minutes was missing. The report presented estimates of the votes cast in 23 polling stations: (i) in 18 of those stations, none of the preregistered voters had voted and the additional list of voters had not been signed; (ii) in the case of another polling station, no minutes had been put on file and the additional list of voters had not been signed; (iii) for three other stations, the first page of the minutes was missing and the additional list of voters had not been signed; (iv) in another polling station, the first page of the minutes had not mentioned the number of persons having voted and none of the preregistered voters had voted. The experts considered that a total of 18,351 votes should be deducted from the election results, 18,140 of which had been case for the DPS. The Central Electoral Commission conducted the provisional reassignment of seats among the political parties on the basis of the expert report. 34. On 9 February 2010 the parliamentary group of the DPS submitted supplementary observations challenging the Constitutional Court’s choice of criteria for excluding the votes cast in the aforementioned polling stations from the vote count. The DPS deputies pointed out that the outcome of the voting had been based on the data set out in the polling station minutes, and not on the electoral rolls. They added that electoral legislation did not require the chairs and secretaries of out-of-country local electoral committees to sign below the additional lists of voters drawn up on election day. At all events, in the deputies’ opinion, the shortcomings of members of the electoral administration could not lead to the annulment of electors’ votes. 35. On 15 February 2010 the Central Electoral Commission presented its findings to the Constitutional Court. It pointed out that according to mathematical projections, the annulment of the votes cast in the 23 polling stations mentioned in the experts’ supplementary conclusions would deprive the DPS of one seat which would be assigned to the GERB political party and that in the 8th multiple-member constituency the DPS candidate concluded in second place on the party’s list, Mr Riza, would lose his parliamentary seat. 36. The Central Electoral Commission presented the Constitutional Court with observations made by five of its twenty-five members on the merits of the case. Those five members voiced the opinion that the arguments put forward by the appellants and the experts’ conclusions could not be used to justify annulling the votes cast in the polling stations in question. They explained in particular that the lists of persons voting in the out-of-country polling stations had been drawn up by the Bulgarian diplomatic representatives accredited on the basis of the prior declarations of intention to vote which they had received. They nevertheless stated that no prior information had been given on the distribution of the voters in question around the various polling stations, as they could attend any polling station or choose not to vote at all, which in their view explained why in some stations none of the voters on the main list had voted. The members of the Electoral Commission considered that that should not lead to the invalidation of the ballots of other electors who had voted in the same polling station. They pointed out that under domestic legislation the election documents had to be packaged and sealed by the local electoral committees and then sent to the Central Electoral Commission. However, when the election documents had arrived from Turkey, it had been noted that the packages containing the documents had already been opened and then re-sealed by the diplomatic services of the Ministry of Foreign Affairs. At all events, the absence, attributable to the Bulgarian diplomatic services or the local electoral committees, of election documents from out-of-county polling stations could not have justified annulling votes cast in those stations, given that the election results from outside the country had been based on data transmitted via diplomatic telegrams to the Central Electoral Commission. Finally, the members of the Electoral Commission, referring to domestic legislation, submitted that the fact that a member of the Electoral Commission had not signed minutes of voting or the accompanying documents did not invalidate them and did not constitute grounds for annulling the votes cast in the station in question. They considered that the recalculation of the election results was based on arguments which had not been mentioned in the request to the Constitutional Court. 37. On 15 February 2010 the DPS and six of its deputies applied to the Constitutional Court for leave to join the proceedings in question as a party. In that application the DPS stated that it fully endorsed the observations submitted by its parliamentary group on 18 September 2009 and 9 February 2010. On 16 February 2010 Mr Riza requested leave to join the proceedings as a party. In order to demonstrate his interest in taking part in the proceedings he referred explicitly to the additional expert report ordered by the Constitutional Court and the reapportionment of seats effected by the Central Electoral Commission on the basis of the experts’ findings. All those requests remained unanswered. 38. On 16 February 2010 the Constitutional Court, sitting in private session, adopted its decision in the case in question. It delivered its judgment on the same day. 39. The Constitutional Court dismissed the pleas of inadmissibility put forward by the DPS parliamentary group in its observations of 18 September 2009 (see paragraph 25 above). It considered, first of all, that the procedure for applying to the court had been respected. Secondly, it observed that the case concerned the contestation of election results rather than the eligibility of an individual candidate, which enabled it to assess the case even though the deputies in question had been sworn in and were already in office. It joined to the merits of the case the third plea of inadmissibility concerning the lack of a direct link between the out-of-country votes and the election of the seven DPS deputies named in the initial request. Judges R.N. and B.P. set out separate opinions on the admissibility of the request for annulment of the election results. They considered that the Attorney General had merely transmitted the request submitted by the RZS party instead of himself lodging a reasoned application for the annulment of the elections. 40. Considering that it should begin by clarifying the scope of the case, the Constitutional Court pointed out that it had been invited to find unlawful the election of a number of DPS deputies owing to several alleged irregularities in the polling stations operating in Turkish territory. Having regard to the specific mode of functioning of the Bulgarian electoral system, in which votes cast by Bulgarian citizens living abroad were taken into account solely for the proportional distribution of seats among political parties at the national level, it was impossible to determine in advance which deputies would be affected by the invalidation of some or all of the votes cast in Turkish territory. Thus, in the framework of that case, the Constitutional Court considered that it had been called upon to determine whether there had been any serious irregularities in the voting procedure in the 123 polling stations in Turkey. It held that a finding of such irregularities could lead to a change in the election results, a fresh apportionment of seats among the political parties and the annulment of the seats of deputies who had not been explicitly targeted by the initial application lodged by the leader and a number of candidates of the RZS party in the general elections. 41. The Constitutional Court rejected all the arguments put forward in the initial statement of claim. It first of all noted that section 41 (8) (3) of the Electoral Law gave Bulgarian diplomatic representatives outside the country carte blanche to open as many polling stations as they considered necessary for the proper conduct of the elections. 42. Secondly, it considered that the question whether a given voter had voted without a valid Bulgarian identity card was immaterial to the outcome of the proceedings, since voting secrecy ruled out ascertaining which party the person had voted for. 43. The Constitutional Court stated that the experts had noted that in some polling stations none of those on the main electoral roll had voted, while in other stations only a few of those on the roll had voted. It pointed out that according to the experts the names added on election day had been written clearly and apparently unhurriedly, which would seem rather unlikely given the large number of such additions and the pressure under which the members of the electoral committees would have been working on election day. However, the Constitutional Court considered that such considerations were mere suspicions which had not categorically demonstrated that the results of voting in those polling stations had been manipulated. 44. The Constitutional Court also noted that the experts had reached the conclusion that the maximum number of persons who could vote in one polling station was 936. However, it considered that in the absence of precise information on the alleged irregularities in the voting procedure in the polling stations with more than 1,000 persons voting, that finding did not provide grounds for invalidating the election results. At all event voting secrecy precluded determining for whom the persons registered after number 936 on the list of voters had cast their vote. 45. For those reasons the Constitutional Court dismissed the application for the annulment of the seats of the seven deputies explicitly covered by the initial request submitted by the leader and candidates of the RZS party. 46. However, it decided to deduct from the results obtained by each of the political parties respectively all the votes cast in 23 polling stations in Turkey, that is to say a total of 18,358 votes, 18,140 of which had been cast for the DPS. It pointed out that in those polling stations none of the voters preregistered on the main electoral rolls had voted, or else the first page of the minutes of the voting, certifying that the preregistered persons had voted, was missing. The court pointed out that in the 23 polling stations in question the additional lists of voters drawn up on election day did not bear the signatures of the chairs and secretaries of the local electoral committees, which deprived them of the probative value of official documents. The Constitutional Court accordingly considered that they could not be used in evidence to demonstrate that the registered persons had voted. That approach had allegedly also enabled it to determine how many votes had been deducted from the election results of each party or coalition and to reallocate the deputies’ seats in the National Assembly. 47. The Constitutional Court rejected the additional objections raised by the DPS parliamentary group on 9 February 2010 (see paragraph 34 above). It considered that the irregularities noted in the electoral rolls in the various polling stations had also affected the legitimacy of the minutes drawn up by the electoral committee on completion of the voting because they contained data on the exact number of persons having voted in the polling station in question and the election results had been determined on the basis of the minutes. Even though domestic legislation did not explicitly require the members of the out-of-country local electoral committees to sign additional electoral lists, the module additional electoral list approved by the President of the Republic pursuant to the Electoral Law provided for such signatures. The Constitutional Court therefore took the view that such signature was a legal condition for the validity of such official documents. At all events, the signature was one of the fundamental and obvious components of any official document. The lack of those signatures on the additional voter lists drawn up in the 23 polling stations thus deprived them of their official probative value in respect of the fact that the registered persons had actually cast their votes. 48. The Constitutional Court declared that the votes in question had been valid under domestic legislation but that they had been deducted from the election results owing to the irregularity of the voter lists and the voting minutes. It considered that the seats in the National Assembly had to be reallocated. For those reasons, and having taken into account the prior calculations submitted by the Central Electoral Commission, the Constitutional Court annulled the parliamentary seats of three deputies, including Mr Riza. It ordered the Central Electoral Commission to reapportion the seats in the National Assembly by deducting from the election results the 18,358 votes cast in the 23 polling stations in question. 49. By decision of 19 February 2010, pursuant to the judgment of the Constitutional Court, the Central Electoral Commission declared three other candidates elected. Consequently to that redistribution of seats, the DPS was the only party to have lost a parliamentary seat and the GERB party, which had won the general elections, obtained an additional seat. 50. On 4 March 2010 the DPS and three of its deputies in the National Assembly in turn lodged the appeal provided for in section 112 of the Electoral Law and contested the lawfulness of the election of the three deputies which the Central Electoral Commission had declared elected by decision of 19 February 2010. Mr Riza lodged the same appeal in his own name. 51. On 31 March and 27 April 2010 the Constitutional Court declared the two appeals inadmissible on the grounds that the dispute in issue had already been the subject of proceedings before it, leading to its judgment of 16 February 2010. 52. The 41st National Assembly constituted following the general elections of 5 July 2009 sat until 15 March 2013, when it was dissolved by Presidential Decree. 53. The elections to the 42nd National Assembly were held on 12 May 2013. At those elections the DPS obtained 400,460 votes, that is to say 11.31% of the validly cast votes. It obtained 51,784 votes in Turkish territory. It sent 36 deputies to the National Assembly, where it was the third biggest parliamentary group. Mr Riza was elected deputy of the 8th multiple-member constituency, where he headed his party’s list. 54. The lawfulness of those general elections, particularly as regards the polling stations opened in Turkish territory, was disputed before the Constitutional Court by a group of 48 deputies from the GERB party. The deputies requested the annulment of the elections in the 86 polling stations operating in Turkey owing to several alleged irregularities in the voting procedures: they submitted that the polling stations had been set up on the basis of forged prior declarations of intention to vote; they had opened despite their electoral committees lacking the minimum number of members; unidentified persons had canvassed the areas inhabited by Bulgarian citizens in Turkey, had obtained Bulgarian identity papers from various electors and had returned them to their owners the day before the elections telling them that they had voted; several voters had not shown any valid Bulgarian identity papers; the number of persons voting in some of the polling stations had exceeded, which was unrealistic in view of the time required to complete the formalities linked to the voting procedure; there had been several cases of double voting; the lists of electors registered on election day had not been properly drawn up and had not been signed by the chair and the other members of the electoral committee. The request referred explicitly to the reasoning of the judgment delivered by the Constitutional Court on 16 February 2010. 55. By judgment of 28 November 2013 the Constitutional Court dismissed the appeal lodged by the 48 GERB deputies. It considered and rejected, on the basis of the evidence gathered, all the allegations of breaches of electoral legislation advanced by the appellants. It noted, inter alia, that the relevant members of all the electoral committees set up in Turkish territory had signed at the bottom of the lists of voters added on election day, which gave those documents the probative value of official documents. 56. During the 42nd legislature the DPS took part in a coalition government which resigned in July 2014. Following those events the 42nd National Assembly was dissolved on 6 August 2014 by Presidential Decree. 57. The elections to the 43rd National Assembly were held on 5 October 2014. The DPS obtained 487,134 votes, that is to say 14.84% of all valid votes cast, and sent 38 deputies to Parliament. No admissible appeal was lodged before the Constitutional Court against those election results. The DPS is currently the third biggest political party in the country and the second biggest opposition party. 58. Mr Riza was elected as deputy in the 8th constituency, where he headed the DPS list. ... | 1 |
test | 001-170656 | ENG | BGR | COMMITTEE | 2,017 | CASE OF RASHKOVA AND SIMEONSKA v. BULGARIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Carlo Ranzoni;Ganna Yudkivska | 4. The applicants were born in 1970 and 1935 respectively and live in Sofia and Ruse. 5. D.D., father of the second applicant and grandfather of the first applicant, and his son P.R., father of the first applicant, owned a plot of land and a house in Popovo. 6. By two decisions of the mayor of 9 May 1988 and 27 February 1989 the property was expropriated with a view to constructing a residential building. The decisions, based on section 98(1) of the Territorial and Urban Planning Act of 1973 (Закон за териториалното и селищно устройство – hereinafter “the TUPA”), provided that D.D. was to be compensated with a two-room flat in a building which the municipality planned to construct on the expropriated plot, and P.R. with the right to build a house on municipally owned land. 7. In 1989 the expropriated house was pulled down and in 1994 construction work was started on the site. 8. By a supplementary decision of 19 April 1991, based on section 100 of the TUPA, the mayor specified the exact location and size of the future flat to be offered to D.D. No supplementary decision was issued however with regard to the right to build a house on municipally owned land which was due to P.R. 9. D.D. and P.R. passed away in 1998 and 2002 respectively, and D.D.’s wife passed away in 2011. This left the two applicants as heirs of D.D., and the first applicant as sole heir of P.R. 10. On an unspecified date in 2005 the applicants requested that the mayor of Popovo revoke the expropriation order in respect of their predecessors’ property, under paragraph 9(2) of the transitional provisions of the Territorial Planning Act (Закон за устройство на територията, see paragraph 17 below). The mayor did not respond, which under domestic law was considered a tacit refusal. After the applicants applied for judicial review, the refusal was upheld by the courts, in judgments of the Targovishte Administrative Court (“the Targovishte Court”) and the Supreme Administrative Court of 9 March and 11 July 2006 respectively. 11. Following a fresh request by the applicants for the revocation of the expropriation order, in judgments of 10 November 2006 and 25 April 2007 the Targovishte Court and the Supreme Administrative Court annulled a new tacit refusal on the part of the mayor, acknowledging that the preconditions for such a revocation had indeed not been met, but instructing the mayor to examine the applicants’ request under paragraph 9(1) of the transitional provisions of the Territorial Planning Act, providing for the possibility of monetary compensation (see paragraph 17 below). 12. As the mayor failed once again to take a decision on the applicants’ request, on an unspecified date they challenged his new tacit refusal, which was annulled once again by the Targovishte Court and the Supreme Administrative Court, in judgments of 27 September 2007 and 3 April 2008 respectively. 13. Following that, on two occasions (3 June 2009 and 15 June 2010) the mayor refused expressly to revoke the expropriation order in respect of the applicants’ property. After the applicants challenged these refusals, they were found to be null and void by the courts, the first one in a final judgment of the Supreme Administrative Court of 21 May 2010, and the second one in a judgment of the Varna Administrative Court of 25 March 2011. The courts, finding that the fresh refusals were in contradiction with the earlier court judgments in cases between the same parties, sent the case back to the mayor, instructing him once again to examine it under paragraph 9(1) of the transitional provisions of the Territorial Planning Act. 14. In April 2011 an expert commission of the municipality assessed the value of the expropriated property and set the amount of compensation to be provided to the applicants at 67,300 Bulgarian levs (BGN). After the applicants challenged that amount, in a judgment of 21 December 2011 the Targovishte Court increased it to BGN 83,500. 15. That sum was paid to the applicants in June 2012. | 1 |
test | 001-142892 | ENG | SWE | ADMISSIBILITY | 2,014 | J.M. v. SWEDEN | 4 | Inadmissible | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applicant is a Rwandan national who has born in 1978. She is currently in Sweden. She is represented by Mr P. A. Hultman, residing in Grebbestad. 2. 3. On 20 October 2008, the applicant applied for asylum and a residence permit in Sweden. She was provided with legal counsel to represent her during the asylum proceedings. Before the Migration Board (Migrationsverket), she claimed the following. She originated from Kigali. In 1996, her family had disappeared after being arrested by the police. In August 2008, she had been requested by two men to testify against her neighbour in a Gacaca trial (see below paragraph 28). The men had told her what to say before the court. She had not known her neighbour or of what crime he had been accused. The general public had received a lot of information about the Gacaca court proceedings. According to the law, all villagers had to attend the trials. There had been approximately a hundred persons at the trial in question. Just when she had raised her hand to testify it had started to rain, and the trial had been discontinued. She had therefore not testified. However, everyone present had seen her and observed that she had not testified. Three other persons had testified against the neighbour and she had no information about what had happened to him later. The following day she had been arrested and imprisoned by the local police. She had been repeatedly raped and ill-treated while in detention. In her view, the ill-treatment had been a way to force her to testify. When she had promised to do so, she had been released. Shortly thereafter she had been summoned. She had gone into hiding and with the help of a priest she had managed to leave the country. She would risk being killed by the local authorities or by the police if returned since she had refused to commit perjury. The applicant submitted a copy of her identity card and a summons issued by the local police station to substantiate her claims. 4. On 28 May 2009, the Migration Board rejected the application. It found that the identity card produced was insufficient to substantiate the applicant’s identity. However, the Board found that she, through her asylum story, had made it plausible that she originated from Rwanda. Turning to the documentary evidence, the Board found that the submitted summons was of simple quality and thus had low evidential value. Further, the Board found the asylum story vague and lacking in detail. For example, the applicant had not known why she had been requested to testify, who the accused person was, who the other witnesses were or if witnesses were usually summoned in these types of proceedings. Further, she had not known what punishment she risked for not testifying. The Board found it remarkable that the asylum story was so vague, given that the applicant had stated that the general public had received a lot of information about these trials before they were initiated and that she had attended several trials previously. Further, the Board found that the asylum story was inconsistent with relevant country information, which suggested that participation in the proceedings was voluntary. Consequently, the Board found that the applicant had failed to make plausible that she risked persecution or ill-treatment if returned. 5. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining her claims. 6. On 2 July 2010, the Migration Court, after having held an oral hearing, rejected the appeal. It agreed with the Board that the asylum story was vague and lacked credibility. In any event it noted that, according to country information, the majority of the Gacaca court proceedings had been terminated and that although there had been problems of threats and violence against witnesses, essentially taking place locally, there existed a certain witness protection and the authorities investigated and indicted such crimes committed by private actors. Consequently, the court found that the applicant had failed to exhaust the possibilities of obtaining domestic protection. 7. On 23 September 2010, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. Hence, the expulsion order became enforceable. 8. In November 2010, the applicant claimed that there were impediments to enforcement of the deportation order for medical reasons and on grounds of family ties to her cohabiting partner, X, as well as the general security situation and severe living conditions in her home country. 9. On 20 November 2010, the Migration Board rejected the request since no reasons had emerged to deviate from the general rule that a residence permit, based on family ties, should be lodged with the Swedish authorities abroad. This was in particular so when the family ties had been established after a final decision on expulsion had been rendered. Further, it found that the applicant had not raised any new circumstances in the case. 10. Another request for re-examination of the case, on the basis of circumstances already mentioned and the general situation in Rwanda, was rejected by the Migration Board on 17 January 2011. 11. Thereafter the Migration Board was informed that the applicant had travelled to Belgium and, on 8 July 2011, she was registered as having left Sweden. On 21 September 2011, the applicant re-entered Sweden. 12. In January 2012, the applicant again requested a stay on removal to her home country and a re-examination of the case, relying on family ties to X and their son, Y, who had been born in October 2011. The applicant submitted a copy of the paternity certificate to the Board. 13. On 28 January 2012, the Migration Board rejected the request. It pointed out that the applicant had not produced a passport and thus had failed to prove her identity. It followed already from that that she did not fulfil one of the basic requirements to be granted a temporary residence permit in Sweden. The Board also noted that, since 23 September 2010 when the decision to reject her asylum application became final, the applicant had no legal right to stay in Sweden. Consequently, it found no reason to deviate from its previous position. 14. The applicant again requested a stay of removal and a reexamination of the case based on family ties to X and Y, and submitted, inter alia, a decision from the Swedish Tax Authority. 15. On 7 July 2012, the Migration Board rejected the application. It reiterated that the applicant had not submitted a passport to the Swedish authorities to prove her identity and fulfil one of the basic requirements to be granted a temporary residence permit. It further considered that she had failed to make plausible that she had strong family ties to X and Y. The circumstance that X was her cohabiting partner and that they had Y together led to no other conclusion. Thus, it found that the applicant had not fulfilled the basic requirements for a residence permit. 16. The applicant then made yet another request for re-examination and stated that it would be in violation of the UN Convention on the Rights of the Child, applicable EU directives and the Migration Board’s own regulations, if she were forced to return to her home country, and consequently separated from her child, in order to submit her application from there. 17. On 25 May 2013, the Migration Board rejected also this request on the same grounds as its previous decisions. 18. Upon appeal, the Migration Court, on 5 June 2013, upheld the Board’s decision in full and considered that the applicant had not invoked any new circumstances. 19. On 2 July 2013, the Migration Court of Appeal refused leave to appeal. 20. In October 2003, X applied for asylum and a residence permit in Sweden. Before the Migration Board he stated that he was Rwandan of Hutu ethnicity and had been involved in the 2003 presidential election campaign, responsible for youth activities in his municipality, and had arranged illicit meetings which had come to the authorities’ attention. 21. On 20 March 2006, the Migration Board rejected the application. It found no reason to question X’s claim of political activity in connection to the election but considered that he had merely been politically active at a low level and it was thus unlikely that the authorities would have any interest in him. 23. On 17 January 2012, Y applied for asylum and a residence permit on the grounds that he risked persecution in Rwanda, with reference to the applicant’s and X’s asylum claims. Furthermore, family ties to X were relied on. Supporting documents, inter alia, a copy of the paternity investigation and certificates were submitted to the Board. 24. On 13 April 2012, the Migration Board granted Y refugee status, a permanent residence permit and travel documents, valid in relation to all countries except Rwanda for the period 2012 to 2017. The Board noted that it was undisputed in the case that X was the father of Y. Since X had been granted a residence permit in Sweden as a refugee this should also apply to Y, in accordance with the principle of family unity. 25. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. See Imamovic v. Sweden ([dec.], no. 57633/10, 13 November 2012) for a substantive account of the relevant provisions of this Act. 26. On 1 July 2010 Chapter 5, section 18, was amended by the following addition: “When assessing what is reasonable under the second paragraph, point 5, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted if the application had been examined before entry into Sweden.” According to the preparatory works, this means that the alien should fulfil all requirements for a residence permit such as, inter alia, holding a valid passport, verified identity and strong family ties (Government Bill 2009/10:137, p. 17). 27. Chapter 12, section 18, was also amended on 1 July 2010 by the following addition: “When assessing under the first paragraph, point 3, if there is another special reason for a decision not to be executed, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted ... if the application had been examined before entry into Sweden.” 28. According to Human Rights Watch, World report 2013 –Rwanda, the community-based Gacaca courts, set up to try cases related to the 1994 genocide, closed in June 2012. Moreover, the trial of Jean Bosco Uwinkindi, the first case transferred to Rwanda by the International Criminal Tribunal for Rwanda (ICTR), opened in Kigali. The ICTR has agreed to transfer seven other cases to Rwanda. Human Rights Watch also noted that Rwanda had made important economic and development gains but that the government had continued to impose tight restrictions on freedom of expression and association. Opposition parties were unable to operate. | 0 |
test | 001-144520 | ENG | POL | ADMISSIBILITY | 2,014 | LACHOWSKI v. POLAND | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 1. The first applicant, Mr Leonard Lachowski, a Polish national, was born in 1927. He died on 31 May 2011. The second applicant, Mr Hubert Lachowski, a Polish national, was born in 1978. The applicants were initially represented before the Court by Mr W. Tomczyk, and, subsequently by Mr B. Zygmont, lawyers practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. 2. On 18 September 2001, following a complaint from a bank, the Wrocław-Stare Miasto Police opened an inquiry (dochodzenie) into attempted fraud by Mr J.M. They relied on Article 286 § 1 of the Criminal Code. 3. On 20 September 2001 the Wrocław-Stare Miasto District Prosecutor opened an investigation (śledztwo) into the forgery of a cheque for 2,000 dollars (USD) and the attempted fraudulent use of that cheque. The prosecutor relied on Articles 310 § 1 and 286 § 1 of the Criminal Code. 4. On 22 October 2001 the Wrocław-Stare Miasto District Prosecutor made an application to the Wrocław Regional Court for the interception and recording of the content of the applicants’ telephone conversations. The prosecutor’s application was made in connection with the investigation against J.M. and other persons suspected of the commission of an offence under Article 310 § 1 of the Criminal Code and other offences. The District Prosecutor requested the court to issue a warrant authorising the interception of the content of the applicants’ telephone conversations, which “may concern the activities of an organised group involved in the putting into circulation of forged securities and aggravated fraud, or indicate planned or already committed offences”. The prosecutor relied on Articles 237 § 1, 237 § 3 (14) and (15), 237 § 5 and 239 of the Code of Criminal Procedure. 5. Among the reasons for her application, the prosecutor stated as follows: “So far it has been established that on 6 September 2001 J.M. attempted to defraud the Citibank in Wrocław of 2,000 USD (the equivalent of 8,251.65 Polish zlotys) by using a Security Pacific National Bank cheque issued on 4 September 2001. It is clear from the evidence obtained in the investigation that the said cheque was forged. Cheques from this bank were removed from circulation in 1992, that is, a year after the Bank of America acquired the Security Pacific National Bank. It further appears from the evidence that the said cheque originated from Leonard Lachowski [the first applicant], and that, in cooperation with other persons, he intends to use these documents [cheques] to defraud large sums of money in the near future. There exists a reasonable suspicion that Leonard Lachowski possesses a large number of forged cheques (about 100) of the same American bank to the value of 2,000 USD each ... In connection with the above, at the current stage of the investigation it is necessary to establish the source from which the said securities originated and Leonard Lachowski’s contact with persons who are cooperating with him in order to put those documents into circulation with a view to defrauding large sums of money. ...” 6. On 25 October 2001 the Wrocław Regional Court (Sąd Okręgowy) granted the prosecutor’s application for leave to intercept the applicants’ telephone conversations for a period of three months. That decision was given in the proceedings against J.M. and others and in respect of the offence under Article 310 § 1 of the Criminal Code and other offences. The court decided to delay the serving of its decision on the applicants until the end of the investigation. It authorised two police officers to make a transcript of the recorded conversations and another officer to read the transcript. The court ordered that the transcript be classified and transmitted to the Wrocław-Stare Miasto District Prosecutor’s Office. 7. The court gave the following reasons in its decision: 8. On 16 November 2001 the first applicant and V.V. were arrested by the police at a bank in Wrocław. 9. On 17 November 2001 the District Prosecutor charged the first applicant with two offences. The first charge was that of putting into circulation between 24 October and 16 November 2001, jointly with others, of a forged Texas Commerce Bank cheque for USD 8,500,000 and attempted fraudulent use of that cheque (Articles 310 § 2 and 286 § 1 of the Criminal Code). Shortly afterwards, the second applicant was charged with the same offence. The second charge against the first applicant was that of storing and transporting on 16 November 2001 a forged Security Pacific National Bank cheque for USD 2,000 (Article 310 § 2 of the Criminal Code). 10. On 19 November 2001 the Wrocław-Śródmieście District Court remanded the first applicant in custody on suspicion of the offences referred to above. His pre-trial detention was extended on a number of occasions. In a decision of 14 February 2002, the Wrocław Regional Court found that the evidence obtained in the case indicated that the first applicant had acted as part of an international criminal group involved in forging securities and putting them into circulation in Poland and abroad. On 7 July 2002 the first applicant was released from detention and other, non-custodial, measures were applied. 11. On 21 December 2001 the Wrocław-Śródmieście District Court remanded the second applicant in custody on suspicion of the offence referred to above. On 13 June 2002 the court released him from detention and imposed non-custodial preventive measures instead. 12. On 28 December 2001 the investigation was taken over by the Department of Organised Crime at the Wrocław Appellate Prosecutor’s Office (Prokuratura Apelacyjna). 13. On 25 September 2003 the Wrocław Appellate Prosecutor amended the charges against the applicants. He specified that the applicants had acted jointly with V.Z. and V.V. The prosecutor additionally invoked Article 294 § 1 of the Criminal Code, which signified that the fraudulent use of the cheque involved a considerable amount of money. 14. By a letter dated 14 June 2004 the Appellate Prosecutor informed the applicants that on the basis of the Regional Court’s decision of 25 October 2001, investigative measures – namely, the interception of telephone conversations – had been carried out pursuant to Article 237 of the Code of Criminal Procedure (“the CCP”). The prosecutor further informed the applicants that the relevant decision and the results of the interception could be consulted at the secret registry of the office of the Wrocław Appellate Prosecutor. 15. On 24 June 2004 the applicants lodged an appeal (zażalenie) against the Regional Court’s decision of 25 October 2001 authorising the warrant, alleging that it had been unlawful on two grounds. 16. Firstly, they argued that the Regional Court had erroneously applied Article 237 §§ 1 and 3 of the CCP in authorising the interception of telephone conversations in respect of an offence which was not included in the list of offences set out in Article 237 § 3. They noted that the aim of the Regional Court’s decision had been to establish the source of the forged cheques. However, at the material time Article 237 § 3 of the CCP did not allow for the application of such measures in respect of the offence of forgery of cheques. Subparagraph 12 of that provision authorised the interception of telephone conversations only in respect of the offence of counterfeiting money (fałszowanie pieniędzy). They underlined that the relevant provision had been amended to include the offence of forgery of cheques, but only with effect from 1 July 2003. 17. Secondly, the applicants alleged that the Regional Court had incorrectly applied Article 237 § 6 of the CCP in authorising a police officer and an interpreter to examine the recorded conversations. They submitted that only the court or the prosecutor, and in urgent cases the police with the agreement of the court or the prosecutor, had the right to do so. However, in their case the recordings had been examined by a police officer and a translator without the required authorisation by the prosecutor. 18. On 5 August 2004 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed the applicants’ appeal. The decision was served on the applicants’ counsel on 13 August 2004. The Court of Appeal held as follows: “The Court of Appeal finds that the present appeal is unfounded and cannot be sustained. The appeal’s main argument is the assertion that since Hubert Lachowski and Leonard Lachowski [the applicants] were charged with the commission of an offence under Article 310 § 2 of the Criminal Code [putting into circulation a forged cheque], and since this offence was not one of the offences listed in Article 237 § 3 of the CCP at the time of issuing the decision, the interception and recording of their [telephone] conversations was not permitted. However, such an argument cannot be upheld for the following reasons. The investigation carried out by the Wrocław-Stare Miasto District Prosecutor did in fact relate to the putting into circulation of forged securities, but by the members of an organised [criminal] group, in other words, the offence under Article 237 § 3 (14) of the CCP, in respect of which it was permitted to intercept and record telephone conversations at the date when the decision was issued. According to the evidence obtained before the issuing of the decision, Hubert Lachowski and Leonard Lachowski [the applicants] were indeed persons suspected of (osoby podejrzane) acting as part of an organised group, as indicated by the passage from the impugned decision which states: “the content [of those conversations] may concern the activities of an organised group involved in the putting into circulation ...”. It has to be reiterated that a person suspected of [the commission of an offence] (which is referred to in Article 237 § 4 of the CCP) in respect of whom it is permitted to intercept and record telephone conversations is a person “who is suspected of having committed an offence, but who has not yet been formally charged. In respect of such a person there is a supposition that he/she has committed an offence; however, there is as yet no reasonable suspicion of their having committed an offence, and only such reasonable suspicion constitutes a ground to make that person a suspect (T. Grzegorczyk, Kodeks Postępowania Karnego. Komentarz. Wydanie III uzupełnione ... [Code of Criminal Procedure, Commentary, 3rd revised edition] ...). Having regard to the foregoing, it has to be stated that the charge [of committing an offence] under Article 310 § 2 of the Criminal Code laid against the applicants did not provide a ground for tapping their telephones as that was not provided for by Article 237 § 3 of the CCP; nevertheless, the fact that at the same time they were persons suspected of membership of an organised group and of carrying out activities within the framework of such a group did constitute grounds for issuing the impugned decision on the interception and recording of telephone conversations. Thus, the warrant was issued in accordance with the law and consequently there are no grounds for sustaining the arguments put forward in the appeal; moreover, the court was able to authorise a police officer to examine the recordings of the intercepted telephone conversations under Article 237 § 6 of the CCP. The appellant is not right in claiming that under Article 237 § 6 only the prosecutor has the right to examine recorded conversations, because the court has that right also, and with the permission of these two authorities (and not only of the prosecutor), so also do the police. It is further obvious that in the case of a recording in a foreign language all of the above authorities have the right (and even a duty) to seek the assistance of a sworn translator. ...” 19. On 17 August 2004 the Wrocław Appellate Prosecutor filed a bill of indictment with the Wrocław Regional Court against eight accused. The applicants were charged with putting into circulation between 24 October and 16 November 2001, jointly with V.V. and V.Z., a forged Texas Commerce Bank cheque for USD 8,500,000 (the equivalent of 35,000,000 Polish zlotys (PLN)) and attempting to use that cheque fraudulently. The prosecutor relied on Article 310 § 2 in conjunction with Article 286 § 1 and Article 294 § 1 of the Criminal Code. The first applicant was also charged with storing and transporting on 16 November 2001 a forged Security Pacific National Bank cheque for USD 2,000 (Article 310 § 2 of the Criminal Code). Four accused were charged with acting in an organised criminal group. 20. The warrant authorising the telephone tapping and the transcript of the intercepted conversations was deposited in the classified section of the case file. On 3 September 2004 the applicants’ counsel requested that the Regional Court be served with a copy of the warrant. On 23 November 2004 the applicant’s counsel repeated his request and argued that the decision should not be treated as classified. 21. The trial began on an unspecified date in December 2004. At a hearing held on 17 December 2004 the Regional Court refused to serve a copy of the warrant of 25 October 2001 on the applicants’ counsel. It found that the warrant had been classified under the 1999 Protection of Classified Information Act and that the circumstances justifying that decision had not ceased to exist. 22. At a hearing held on 24 February 2005 the trial court decided that the case against the first applicant should be severed from the main proceedings. It further stayed the proceedings against him having regard to his poor medical condition. 23. At a hearing held on 27 March 2007 the prosecutor requested the trial court to rule that the transcript of the intercepted telephone conversations be adduced in evidence but remain confidential. At an earlier hearing on 19 March 2007, counsel for the second applicant had requested that the confidential evidence be declassified. On 12 April 2007 the trial court declassified the warrant of 25 October 2001 and the transcript of the intercepted conversations. That decision was necessary in order to enable the lay members of the trial court, who did not have the relevant security clearance, to hear the evidence obtained under the warrant. 24. On 17 April 2008 counsel for the second applicant objected to the prosecutor’s request, arguing that the evidence obtained as a result of the telephone tapping was inadmissible in law. He relied on similar arguments to those made in his appeal against the Wrocław Regional Court’s decision of 25 October 2001. In particular, he claimed that the impugned decision had authorised the interception of telephone conversations in respect of an offence which was not included in the list of offences set out in Article 237 § 3 of the CCP. 25. The second applicant’s representative further considered that his arguments were not undermined by the Wrocław Court of Appeal’s decision of 5 August 2004 dismissing his appeal. The Court of Appeal had justified the decision authorising the interception of the telephone conversations by the fact that the applicants were persons suspected of acting in an organised criminal group, and had relied on a passage from the Wrocław Regional Court’s decision of 25 October 2001 (“the content [of those conversations] may concern the activities of an organised group involved in the putting into circulation ...”). However, the counsel underlined that the impugned passage was nowhere to be found in the decision of the Regional Court. Only if the Court of Appeal’s assertion that the telephone tapping had been carried out in connection with the activities of an organised criminal group was correct – and there was no indication in the decision to open the inquiry or in the bill of indictment that that was the case – would the District Court have been competent to order such a measure. Lastly, the applicant’s representative argued that the trial court was not bound by any earlier decision pronounced with regard to the admissibility of evidence. 26. At a hearing held on 27 May 2008 the trial court dismissed the applicants’ challenge to the admissibility of the impugned evidence. It found that the Regional Court had not indicated in the operative part of its decision the precise subparagraph of the provision listing the offences under which the interception of conversations could be authorised. However, in the reasons for its decision the Regional Court had justified the order for the interception on the ground that some of the suspected persons were cooperating with a view to defrauding considerable sums of money. In addition, the Court of Appeal had held in its decision that the content of the conversations could relate to the activities of an organised criminal group. In consequence, it could not be sustained that the evidence obtained under the warrant was inadmissible in law. 27. At a hearing on 19 November 2008 the trial court heard the intercepted telephone conversations. 28. On 23 January 2009 the Wrocław Regional Court gave its judgment. The second applicant and V.Z. were convicted of putting into circulation a forged Texas Commerce Bank cheque for USD 8,500,000 (the equivalent of PLN 35,000,000), and of attempted fraudulent use of that cheque. They were sentenced to two years’ imprisonment. 29. The second applicant lodged an appeal against the first-instance judgment. He alleged, inter alia, that the trial court had not properly reasoned its judgment. In particular, he pointed to the fact that the trial court had heard the evidence obtained as a result of the telephone tapping but had failed to refer to it in the judgment. 30. On 28 October 2009 the Wrocław Court of Appeal amended the firstinstance judgment in respect of the second applicant and upheld it for the remainder. It held that the second applicant’s appeal was partly justified; however none of the alleged breaches of the criminal procedure was confirmed. The Court of Appeal agreed with the appellant that he could not be considered to have been an accomplice in the putting into circulation of the forged cheque. It held instead that the second applicant was guilty of aiding and abetting V.Z. in putting into circulation a forged Texas Commerce Bank cheque, and fraudulent use of that cheque. Accordingly, it sentenced him to a suspended term of two years’ imprisonment. 31. With regard to the intercepted telephone conversations and the fact that the trial court had not relied on them as the basis for establishing the facts of the case, the Court of Appeal agreed with the lower court that that evidence was not relevant to the case. The Court of Appeal noted that the lack of any reference to the evidence amounted to a breach of Article 424 § 1 of the CCP; however, this shortcoming had no effect on the validity of the first-instance judgment or the possibility of having it properly reviewed. 32. The second applicant lodged a cassation appeal. 33. On 11 January 2011 the Supreme Court dismissed his cassation appeal as manifestly ill-founded. In such a case the Supreme Court was not required to provide written reasons for its decision. 34. Having regard to the death of the first applicant, the Wrocław Regional Court discontinued the proceedings against him on 21 July 2011. 35. Article 237 § 1 of the Code of Criminal Procedure, as in force at the relevant time, provided: “Following the institution of proceedings, a court, acting at the request of a prosecutor, may order the interception and recording of telephone conversations with a view to obtaining evidence for pending proceedings or preventing the commission of a new offence.” Article 237 § 3 of the CCP provided at the relevant time, in so far as relevant: “The interception and recording of telephone conversations is permitted only when the pending proceedings, or reasonable suspicion of a new offence being committed, concern: 1/ manslaughter, ... 12/ the counterfeiting of money, ... 14/ an organised criminal group, 15/ property of considerable value, ...” Article 237 § 4 read: “The interception and recording of telephone conversations is permitted in respect of a suspected person (osoba podejrzana), an accused (oskarżony), a victim or other person whom an accused may contact, or a person who may be connected with a perpetrator or with an impending offence.” Article 237 § 6 provided: “A court or a prosecutor has the right to play the recordings, and in cases of urgency so also do the police, with the authorisation of a court or a prosecutor.” 36. Article 237 § 3 (12) was amended with the effect from 1 July 2003. Subsequently, that provision authorised the use of interception measures in the case of offences concerning forgery and use of forged money, cheques and other similar instruments. 37. Article 238 § 1 read as follows: “The interception and recording of telephone conversations may be carried out for a period of up to three months, with a possibility of extending it, in particularly justified cases, for another period of up to three months.” Paragraph 3 of Article 238 provided, in so far as relevant: “After the termination of the interception a court shall order the destruction of the recordings if they are not relevant to the criminal proceedings; ...” 38. Article 239 read: “The serving of the decision on the interception and recording of telephone conversations on the person concerned may be postponed for the time necessary for the interests of the case, but until no later than the termination of the proceedings”. Article 240 specified that a decision on the interception and recording of telephone conversations could be appealed against. | 0 |
test | 001-178949 | ENG | TUR | COMMITTEE | 2,017 | CASE OF YAŞAR AND OTHERS v. TURKEY | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens | 5. A list of the applicants is set out in the appendix. 6. On 21 November 1994 the applicants were taken into police custody. Their statements were taken by the police in the absence of a lawyer. All the applicants confessed to having committed the crimes with which they had been charged. On 28 December 1994 they were remanded in custody. 7. On 24 January 1995 the Public Prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicants (except for Eyyup Yaşar), charging them under Section 125 of the former Criminal Code with carrying out activities with the aim of bringing about the secession of part of the national territory. 8. On 18 June 1999 the Constitution was amended and the military judges sitting on the bench of the State Security Courts were replaced by civilian judges. 9. On 4 December 2001 the Diyarbakır State Security Court convicted the applicants as charged. 10. On 20 November 2002 the Court of Cassation quashed the convictions. 11. State Security Courts were abolished on 16 June 2004 pursuant to Law no. 5190. The case was accordingly transferred to the Diyarbakır Assize Court. 12. On 22 February 2007 the Diyarbakır Assize Court again convicted the applicants under Section 125 of the Criminal Code and sentenced them to life imprisonment. 13. On 6 February 2008 the Court of Cassation upheld the convictions. | 1 |
test | 001-174540 | ENG | BGR | ADMISSIBILITY | 2,017 | PALFREEMAN v. BULGARIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev | 1. The applicant, Mr Jock Anthony Palfreeman, is an Australian national who was born in 1986 and is currently serving a prison term in Sofia. He was represented before the Court by Mr K. Kanev, from the Bulgarian Helsinki Committee. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms L. Gyurova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On the night of 27 December 2007 the applicant, who was serving in the British Army at the time of the incident, was leaving a bar in Sofia when he saw a group of about fifteen young people in the street outside the bar. Some of them got into a brawl with two Roma men. The applicant ran towards them, brandished a knife and started waving it at the group. During the ensuing fight he stabbed and killed one of the young people in the assembled group, the 20-year-old son of a politician. He also seriously injured another young man. Shortly afterwards, two police officers arrived and arrested the applicant. 5. The applicant was tried for murder. His defence was that he had attempted to protect the Roma men who had been attacked by the group of young people. He also claimed that he had used his knife in self-defence when the group had become violent towards him. The prosecution maintained that the applicant had run into the group in a determined way in order to administer justice. By the time he had intervened, the attack on the Roma had come to an end and he had not been acting in self-defence when he had stabbed two members of the group. 6. The applicant was convicted of murder in December 2009. The sentence was upheld on appeal and cassation. The applicant is currently serving a 20-year sentence in Sofia Prison. Both the case and the applicant have attracted significant public attention and extensive media coverage in Bulgaria. 7. The applicant’s close and extended family members – parents, siblings, grandparents, cousins, aunts and uncle – live in Australia; he has no partner or children in Australia. Each journey between Australia and Bulgaria for the 40-minute time slots allowed for visits involves substantial expense and absence from Australia for approximately a week. Because of such constraints, the applicant’s parents have only managed to see him once every six months since he was imprisoned. Such visits have also become increasingly difficult for them with time. His grandparents are in their late eighties and so the journey to Bulgaria has become almost impossible for them. A number of cousins and other close relatives, including an uncle and four aunts to whom the applicant is very close, are unable to make the journey at all. 8. On the basis of the information in the case file, it is clear that the applicant has been receiving regular visits in prison – from family members, friends and acquaintances; in particular, he was visited 48 times between September 2012 and July 2015; nine of those visits were from family members. Visits have been authorised when requested, including during periods falling outside the standard prison visiting schedule. According to a psychological assessment, made in April 2015 and submitted by the Bulgarian authorities, the applicant is socially and emotionally balanced and mature, with realistic self-esteem, a preserved sense of humour and no signs of depressive tendencies, stress or anxiety. He is the chairperson of the Bulgarian Prisoners Association and is fluent in the Bulgarian language, both orally and in writing. He displays leadership potential and strives to dominate in the prison community in which he is well integrated; he is popular among other inmates, both foreigners and Bulgarians, whom he is known to frequently assist with the drafting of their requests and/or complaints to the prison administration. He is housed in the wing for foreigners, assists foreign prisoners by interpreting between English and Bulgarian when necessary, and has regular access to a computer room, for a few hours a day, which makes it possible for him to pursue a distancelearning university course leading to a degree. The applicant actively corresponds in writing with family and friends. 9. On 12 April 2012, at the applicant’s initiative, the Australian authorities contacted the Bulgarian authorities about the possibility of transferring the applicant to Australia for him to continue to serve his sentence there. On 25 June 2012 the Bulgarian Prosecutor General replied in writing that the question of the applicant’s transfer could only be considered once he had paid outstanding damages to the victims. 10. On 14 May 2013 a representative of the Australian Attorney General wrote to the Bulgarian Prosecutor General, formally seeking the Bulgarian Government’s agreement to transfer the applicant under the Council of Europe Convention on the Transfer of Sentenced Prisoners of 1983 (the “Transfer Convention”, see paragraphs 17-21 below). The Australian authorities pointed out that the applicant met the eligibility conditions for the transfer of international prisoners and proposed a number of conditions in that respect. They included the following: that his transfer would not take place until his debts in Bulgaria had been paid; that the applicant would continue to serve his prison sentence in full in Australia and would become eligible for early release once he had served half of it, this also being an option under Bulgarian law; that all reductions of the applicant’s sentence confirmed by the Bulgarian authorities would be reflected in the remaining sentence; and that if the applicant benefitted from a conditional early release in Australia, he would be subject to parole conditions. 11. In a letter of 8 July 2013, sent via the Bulgarian Ministry of Justice, the Prosecutor General informed the Australian Attorney General that the applicant’s transfer had been refused. The letter emphasised that, having carefully considered the relevant provisions in the Transfer Convention and Bulgarian law, the prosecutor found that the conditions for transfer were not met. In particular, transfer was an option and not a mandatory consequence of a request made under the Transfer Convention. The applicant still needed to serve over 14 years of his 20-year sentence. Importantly, he had not shown remorse and had categorically been denying personal responsibility for the crime he had committed. In addition, he had expressed a negative and suspicious attitude towards the Bulgarian justice system as a whole and had been demonstrating hostility and mistrust towards the orders issued by members of the prison administration. In view of the above and of the fact that he had only served a fraction of his sentence, the prosecutor found that the purpose of the punishment, including for the purposes of international law, namely to turn the convicted individual into a law-abiding citizen, had not been achieved. 12. On 9 July 2013 the Bulgarian Prosecutor General announced publicly the refusal to allow the transfer of the applicant to serve the remainder of his sentence in Australia. 13. On an unspecified date the applicant appealed to the Sofia City Administrative Court against the refusal to transfer him to Australia. In particular, he emphasised that the refusal was against the fundamental rationale behind the Transfer Convention, which was to provide a possibility for States to cooperate towards achieving the purposes of justice and the social rehabilitation of convicted individuals. The Sofia City Administrative Court declared the appeal inadmissible, finding that the Prosecutor’s refusal to transfer the applicant was not an individual administrative act, given that the Prosecutor was part of the judicial and not the executive branch of power. 14. The applicant appealed. In a final decision of 24 April 2014, the Supreme Administrative Court held that the refusal of the Prosecutor General was not amenable to review by the administrative courts. 15. Article 453 § 1 regulates the transfer of individuals who have been sentenced. The Prosecutor General is the competent national authority to decide on requests for the transfer of foreigners convicted by a Bulgarian court to their country of nationality in order to serve their sentence. The Prosecutor General agrees such transfers with the relevant competent body of the administering State, after agreement by the prisoner in question. 16. A new provision in the Code of Criminal Procedure, Article 437 § 2, in force since 7 February 2017, provides a possibility for an individual serving a sentence of imprisonment to personally request conditional early release under Article 70 § 1 (1) of the Criminal Code if he or she has served at least half of the prison sentence. 17. The Transfer Convention provides for a formal mechanism by which prisoners can be transferred from one to another contracting State. Both member States and non-member States of the Council of Europe can accede to this Convention, which entered into force on 1 October 1994 in respect of Bulgaria and on 1 January 2003 in respect of Australia. 18. The Explanatory Report to the Transfer Convention states in paragraph 8 that the purpose of the Convention is: “to facilitate the transfer of foreign prisoners to their home countries.” 19. Article 2 of the Convention provides: “1. The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention. 2. A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention.” 20. Article 3 sets out various conditions which must be met in order for a person to be transferred. A sentenced person may be transferred only if he is a national of the administering State. Both the sentencing and the administering State must consent to the transfer. 21. Under Article 4, any sentenced person to whom the Transfer Convention may apply shall be informed by the sentencing State of the substance of this Convention and if she or he expressed an interest in being transferred under this Convention, the sentencing State shall so inform the administering State as soon as practicable after the judgment becomes final. | 0 |
test | 001-162217 | ENG | MKD | CHAMBER | 2,016 | CASE OF SULEJMANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 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) | Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano | 5. The applicant was born in 1958 and lives in Tetovo. 6. On 12 April 2006, the applicant concluded a sales contract (купопродажен договор) with a Sh.A., for the purchase of a concrete mixing and transport lorry (“the vehicle”) for the equivalent of 5,000 euros (EUR) in Macedonian denars (MKD). On 15 May 2007 the applicant lent the vehicle to his company. 7. On 6 October 2008 the Ministry of the Interior temporarily seized the vehicle and its registration certificate (сообраќајна дозвола) from the applicant in order to examine the vehicle’s chassis (проверка на шасија). A record of temporarily seized objects (потврда за привремено одземени предмети) was issued. 8. On 1 February 2010 the Struga Court of First Instance (“the first-instance court”) acquitted Sh.A. of charges of forgery of a document (“фалсификување исправа“) concerning the vehicle’s chassis number and rejected an indictment brought by a public prosecutor against a certain I.S. The court found that during the trial it had not been established that Sh.A. had altered the vehicle’s chassis. In accordance with section 102(3) of the Criminal Proceedings Act (see paragraph 18 below), the court further advised the applicant, who had claimed compensation in the criminal proceedings, to pursue the claim by means of a separate civil action before the civil courts. On 21 July 2010 the judgment became final. 9. On 16 November 2010 the applicant requested that the first-instance court return the vehicle in his possession. 10. On 3 December 2010 the first-instance court heard evidence from the applicant, who stated that he had bought the vehicle from Sh.A. for EUR 25,000. He further stated that he could not have been aware at the time that the chassis number of the vehicle had been forged. 11. On 6 December 2010 the first-instance court, relying on Article 100a (3) of the Criminal Code (“the Code”, see paragraph 17 below), found that there were no grounds for confiscation of the applicant’s vehicle. The applicant had not known nor could he have known that the vehicle had been used to commit a crime. The court also ordered that the registration certificate be returned to the applicant. 12. Upon the public prosecutor’s appeal, on 24 January 2011 the Bitola Court of Appeal (“the appellate court”) quashed that decision. Relying on Article 100-a (2) of the Code, the appellate court found that the vehicle’s chassis had been forged and that the vehicle, in the interest of public safety, could not be declared roadworthy. It further referred to section 100-a (3) of the Code and instructed the first-instance court to assess whether the continued use of the vehicle would constitute a “use of a forged document” offence under the Code (употреба на фалсификувана јавна исправа, see paragraph 17 below). 13. On 22 February 2011 the first-instance court dismissed the applicant’s application and ordered the confiscation (се одземаат) of the vehicle and its registration certificate. It referred to Article 100-a (2) and (3) of the Code and found that the vehicle’s chassis number had been forged and that the vehicle could be used for committing an offence. For that reason and for the reasons of road safety, it was necessary to confiscate the vehicle and the registration certificate. It also referred to section 532(1) of the Criminal Proceedings Act (see paragraph 18 below) and found that, irrespective of the fact that there had been no proceedings against the applicant and that he was not an offender, it was necessary to confiscate the vehicle for general safety reasons. 14. On 11 March 2011 the applicant appealed arguing that the first-instance court had wrongly applied Article 100-a (2) and (3) of the Code and that he had not known that the vehicle had been used to commit a crime. 15. On 19 May 2011 the appellate court dismissed the appeal and upheld the first-instance court’s decision. The relevant part of the decision states as follows: “[The arguments] raised in the appeals, [namely] that the first-instance court had not established the decisive facts concerning [the certitude] that the [applicant] had not known that the vehicle’s chassis had been forged, which was decisive, are groundless. Specifically, it is true that [the applicant] did not know that the vehicle’s chassis had been forged, as a result of which [he] registered the vehicle as its last buyer, [he was] issued a driving licence and [he] paid a large amount. However, [what is] primary under Article 100-a (2) of the [Criminal Code] is that the objects which were intended to [commit] an offence or were used to commit an offence shall be confiscated notwithstanding that they are not in the ownership of the offender or that they are in the ownership of a third person, if general safety, public health or ethics require so ... The fact that [the applicant] did not know that the vehicle’s chassis had been forged does not signify that the conditions of Article 100-a(3) are met, but the first-instance court correctly found that the use of the vehicle with thus forged identification numbers would affect the safety of the road users in the State [безбедноста на јавниот сообраќај], and therefore also the general safety [интересите на општата безбедност].” 16. It appears that the latter decision was served on the applicant on 2 June 2011. | 0 |
test | 001-184066 | ENG | MNE | CHAMBER | 2,018 | CASE OF KIPS DOO AND DREKALOVIĆ v. MONTENEGRO | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström | 5. The first applicant was founded in 1990 and has its seat in Podgorica. The second applicant was born in 1952 and lives in Podgorica. The second applicant is the first applicant’s founder, executive director, and the owner of 99.2698 % of its shares. The remaining 0.7302% is owned by the second applicant’s wife and son. 6. On 3 August and 11 November 1998 respectively the first applicant concluded two contracts with the Development Land Social Fund (Društveni fond za građevinsko zemljište, poslovni prostor i puteve Podgorica). Under the first contract the first applicant obtained the right to use (pravo korišćenja) four plots of development land (građevinsko zemljište) with a total surface of 11,443 m2, on which it planned to build a shopping centre and an office building. The second contract concerned the communal charges for the necessary infrastructure on the land at issue (naknada za uređenje građevinskog zemljišta). On an unspecified date thereafter the four plots of land were joined into one, marked as no. 2090/1036. Pursuant to sections 419 and 420 of the Property Act 2009 (see paragraph 61 below) the first applicant became the owner of the land at issue on 9 December 2011. 7. On 15 April 2005 the Property Administration (Uprava za nekretnine) issued a decision by which it divided the cadastral plot of land no. 2090/1036 into two, one of which kept the number 2090/1036 and had 11,365 m2, and another one which was registered as no. 2090/1220 and which had 77 m2. 8. On 3 March 2016 the cadastral plot of land no. 2090/1036 was further split into two, the smaller part of 44 m2 becoming a cadastral plot of land no. 2090/1581. The bigger part kept the number 2090/1036 and measured 11,321 m2. 9. On an unspecified date in 2004 the first applicant’s plan for the shopping centre and the office building was registered in a Detailed Urbanistic Plan (Detaljni urbanistički plan, “DUP”). 10. In December 2004 the DUP for the relevant area was changed, one of the changes being that the cadastral plot of land no. 2090/1036 and an adjacent plot of land of 1,557 m2, owned by the Municipality, were joined into one urban plot (urbanistička parcela). 11. On 6 June 2005 the President of the Municipality decided to change the relevant DUP further, which decision entered into force on 7 July 2005. Construction in the area was prohibited thereby for the next 90 days except in case of those investors who had already obtained a building permit prior to this decision. 12. On 6 October 2005 another decision was issued, providing that the DUP would be changed within 90 days and construction was further prohibited until the adoption of a new DUP but up to one year at most. The ban did not apply to the investors who had already obtained a building permit. This decision entered into force on 14 October 2005. 13. On 20 January 2006 a new decision to change the DUP was issued, revoking the previous two decisions. As regards its contents it corresponded to the decision of 6 October 2005. It entered into force on 23 January 2006. 14. On 21 July 2006 a new DUP was issued; it entered into force on 29 July 2006. Thereby the adjacent plot of land that had previously been added to plot no. 2090/1036 was apparently split into three: two parts became parts of two newly-formed urban plots of land and the third part remained attached to the applicant’s land and would appear to be part of a traffic route (saobraćajnica). It would also appear that in this urban plot of land the DUP planned the construction of two buildings instead of the shopping centre planned by the first applicant. 15. On 28 July 2010 a new decision to change the DUP was issued. 16. On 16 May 2013 the DUP was changed again, apparently providing for the construction of buildings similar to those initially planned to be built there by the applicants. 17. Following the changes of the DUP in December 2004 (see paragraph 10 above), on 25 January 2005 the first applicant contacted the Property Secretariat (Direkcija za imovinu; “the Secretariat”) in the Podgorica Municipality. It sought to “complete” the urban plot, that is to buy the adjacent cadastral plot of land which had been added to its own land, thus forming one urban plot of land; having received no reply it renewed its request on 23 May 2005 and 2 August 2005. 18. On 27 January 2005 the Spatial Planning Secretariat of Podgorica Municipality issued Urban Technical Conditions, which stated that the cadastral plot of land no. 2090/1036 was smaller than the relevant urban plot and that it needed to be “completed” (potrebno je izvršiti njeno dokompletiranje). 19. On 23 February 2005 the Ministry of Environmental Protection and Spatial Planning (“the Ministry”) granted the first applicant a location for the construction of business premises on plot no. 2090/1036, in accordance with the 2004 DUP. The decision specified that the Urban Technical Conditions of 27 January 2005 were a constituent part of this decision. 20. On 15 August 2005 the first applicant appealed, having received no reply from the Secretariat. The same day the Secretariat informed the first applicant that no completion of plots could be done given that the revision of the DUP was ongoing at the time, which meant “urbanistic reconsideration of the area” at issue. 21. By 6 April 2017 there had been at least seven remittals, either by the Municipality’s Chief Administrator (as the competent second-instance body) or the Administrative Court. 22. In the course of these proceedings, on 2 September 2016 the Secretariat enquired at the Property Administration if the same urban plot of land, as it had existed at the time when the first applicant had first filed a request for completion, could be formed again. On 23 September 2016 the Property Administration replied that the size of the said plot of land had been changed in the meantime and that there was no basis for re-forming the urban plot as it once had been. 23. On 6 April 2017 the Secretariat dismissed the first applicant’s request again. On 19 May 2017 the Chief Administrator upheld this decision, considering that due to the changes of the planning documents the completion of the said plot of land could not be done and that therefore the first applicant’s request had been correctly dismissed. On 23 June 2017 the first applicant instituted an administrative dispute before the Administrative Court, which would appear to be still pending. 24. On 11 July 2005 the first applicant requested the Agency for Construction and Development of Podgorica (Agencija za izgradnju i razvoj Podgorice; “the Agency”), a legal successor of the Development Land Social Fund, to calculate the final communal charges for the urban plot no. 2090/1036. 25. On 20 July 2005 the Agency replied that the calculation could not be made due to the construction ban. 26. On 26 July and 6 September 2005 the first applicant urged the Agency to make the necessary calculation, submitting that the ban applied only to construction and not to the calculation of charges. 27. On 13 September 2005 the first applicant made its own assessment of the communal charges in the amount of 131,324.65 euros (EUR) and made the payment. The payment was returned the next day as it had been made “without cause” (uplaćen bez osnova). 28. In the course of the proceedings the applicant repeated its request to the Agency on several occasions, including between 5 and 14 October 2005, submitting that the construction ban as the basis for refusal was unlawful and/or the ban was not in force at the relevant time. 29. By 1 December 2005 the applicant’s request had been refused by the Agency at least four times on the grounds that construction was banned pursuant to either the decision to change the DUP of 6 June 2005 or the decision of 6 October 2005. The Agency also held that the calculation could not be done as the first applicant had no building permit. 30. On 1 December 2005 the second-instance body rejected the first applicant’s appeal on the grounds that this was not a matter for administrative proceedings. The first applicant initiated an administrative dispute before the Administrative Court in this regard but in view of the opinion of the second-instance body it withdrew that claim, and instead pursued the proceedings before the Commercial Court. 31. On 16 September 2005 the first applicant instituted proceedings before the Commercial Court (Privredni sud) in Podgorica against the Agency for refusing to calculate the communal charges. 32. On 7 April 2006 the Commercial Court ruled in favour of the first applicant and ordered the Agency to calculate the charges. The court considered in particular that the first decision to change the DUP, which prohibited construction, had entered into force on 7 July and expired on 5 October 2005, while the next decision had entered into force on 14 October 2005. Therefore, there had been no construction ban before 7 July 2005 or between 5 and 14 October 2005, when the first applicant requested the communal charges to be calculated and when the Agency was bound to calculate them. The court also noted that the Agency’s reasoning for refusing the first applicant’s request, notably that “the calculation [could] not be done as the first applicant had no building permit” was illogical, since the calculation of charges was a pre-condition for getting a building permit. 33. The Court of Appeals and the Supreme Court upheld the previous decision on 18 April and 29 December 2008 respectively. The Supreme Court held, inter alia, that the first applicant had been granted the location for construction by the competent Ministry before it was decided that the DUP would be changed and that a decision to change the DUP could not affect the investors who had already been granted a location. 34. On 6 August 2008 the Agency calculated the charges. It provided for a new contract to be concluded with the first applicant, which specified that pursuant to the 1998 contract the applicant had already paid a certain amount and that the remaining amount to be paid was EUR 269,309.83. 35. On 13 October 2008, upon the first applicant’s request, the Commercial Court issued an enforcement order, which provided that the Agency would calculate the charges within 30 days or it would face a penalty of EUR 550, and would have to calculate the charges within the following 15 days. 36. On 20 October 2008 the first applicant received the above calculation from the Agency. On 22 October 2008 it requested that the contract specify in accordance with which DUP the construction would be undertaken. 37. On 27 October 2008 the Agency replied that the first applicant’s request was outside the Agency’s competence and that the first applicant should address bodies in charge of urban planning in that respect. On 28 October 2008 the Agency notified the Commercial Court that it had complied with its judgment and the enforcement order. 38. On 10 November 2008 the first applicant informed the Commercial Court that it did not consider the relevant judgment enforced as it had “serious objections” to the documents submitted by the Agency due to which it had not signed them. 39. On 16 February 2009 the Agency informed the Commercial Court that the first applicant had no objections in respect of the calculation itself, and noted that no statute provided for an obligation or a possibility for the first applicant to sign the calculation. 40. On 8 July 2005 the first applicant requested a building permit for the shopping centre from the Ministry. 41. On 26 July 2005 the first applicant notified the Ministry that the Agency was refusing to calculate the charges and asked the Ministry to urge that the Agency do so. On 12 August 2005 the Ministry responded that it had no competence as regards matters relating to the calculation of the charges. 42. On 14 September 2005 the first applicant informed the Ministry that it had done the calculation itself and had made the payment (see paragraph 27 above). 43. On 23 September 2005 the Ministry dismissed the first applicant’s request on the grounds that it had not paid the communal charges or completed the urban plot pursuant to the Urban Technical Conditions. 44. On 18 November 2005 the first applicant instituted an administrative dispute before the Administrative Court. It submitted, inter alia, that the requirement to buy an adjacent plot of land had been introduced in addition and was unnecessary given that the shopping centre was planned entirely on the cadastral plot of land no. 2090/1036. It also maintained that the refusal to calculate the charges was groundless as the ban related to construction only and not to the calculation of the charges, and that it was a deliberate obstruction. 45. On 29 December 2005 the Administrative Court dismissed the first applicant’s claim on the grounds that there was no contract between the first applicant and the Agency concerning the communal charges, that the first applicant had failed to submit all the evidence required by the relevant statutory provision in order to obtain a building permit, and it had failed to obtain an adjacent plot of land as required by the Urban Technical Conditions. The court did not deal with the first applicant’s explicit submission that the said requirements were unlawful and/or unnecessary. 46. On an unspecified date thereafter the first applicant lodged a request for judicial review before the Supreme Court, maintaining that there was a contract between itself and the Agency concluded in 1998. It also submitted that the courts had blamed the first applicant for not paying the charges and completing the plot, even though it had done everything it could to comply with these requests, and had actually complained about the unlawfulness of the relevant State bodies’ refusal to cooperate in these matters. 47. On 2 March 2006 the Supreme Court upheld the previous decision, considering that the first applicant had indeed failed to submit proof that it had paid the communal charges and completed the urban plot as requested. 48. On 29 August 2014, following the change of the DUP in 2013, the first applicant requested a building permit for “central activities building” (za izgradnju objekta centralnih djelatnosti). On 27 July 2017, after five remittals, the proceedings were still pending. 49. Between 15 August 2005 and 20 September 2006 the first applicant filed three motions with the Constitutional Court for the assessment of the constitutionality and legality of the decisions to change the DUP issued on 6 June 2005, 20 January and 21 July 2006 respectively. 50. On 30 January 2006 the Constitutional Court discontinued the proceedings (obustavlja se postupak) upon the first motion as the impugned decision of 6 June 2005 was no longer in force. 51. On 6 December 2006 and 27 June 2007, respectively, the Constitutional Court rejected the other two motions. 52. The DUP in the area at issue was subject to changes in 1990, 1996, 1997, 1999 (the changes in 1999 were done pursuant to the first applicant’s request to that effect), 2002 (entered into force in 2003), 2004 (entered into force in 2005), 2006, 2010 and 2013. The purpose of the land also changed over time, from “sports and recreation” to “central activities” (centralne djelatnosti). 53. Between 8 February and 8 July 2005 the first applicant obtained a number of permits related to the planned construction of the shopping centre (electro-energetic, water supply, sanitation, geo-mechanic, urbanistic, as well as those related to fire safety, environmental protection, workplace safety, traffic, etc.). 54. Between January and August 2005 there were at least four other requests relating to the land in respect of which the DUP was changed (three of which were also for completion of relevant plots of land). In all four cases the claimants were informed that their requests could not be met in view of the changes which the DUP was undergoing. 55. On 14 August 2006 the Ministry sent a letter to the mayors of all Municipalities. The letter stated, in substance, that “certain local government units” interpreted section 33 of the Spatial Planning and Development Act (Zakon o planiranju i uređenju prostora) (see paragraph 69 below), which provided for a possibility of a construction ban where appropriate, in a way that was incompatible with its contents, essence and meaning. The Ministry further explained that a decision on ‘a construction ban’ related exclusively to a ban on issuing a decision granting a location, as a document on the basis of which a building permit was issued, and that in a case where the decision on location had been issued prior to the construction ban, the competent body had a duty to issue a building permit to an investor, provided that the conditions provided in section 34 of the Construction Act (Zakon o izgradnji objekata) were fulfilled, regardless of whether the construction ban in the relevant area was in force. 56. Between 1 August and 8 December 2006 the first applicant was granted a location and was issued urban planning conditions for the construction of a warehouse in another part of Podgorica. It also obtained other relevant consents (concerning water supply, electricity, fire protection, traffic, ecology, sanitation, etc.) and the Ministry’s urbanistic consent to technical documentation. On 28 December 2006 it concluded a contract with the Agency concerning the charges, and on 10 January 2007 it obtained a building permit for that location. By 17 December 2007 it had built the warehouse and obtained a permit to use it (upotrebna dozvola). 57. On 27 August 2015, following the first applicant’s proposal to that effect, a meeting was held between the representatives of the first applicant and the Agency. The Agency undertook to study the first applicant’s submissions in relation to the urban plot of land no. 2090/1036, including the one that it had not been allowed to honour all the obligations. It would appear, however, that the first applicant never received any response from the Agency. | 1 |
test | 001-162117 | ENG | BGR | CHAMBER | 2,016 | CASE OF IVANOVA AND CHERKEZOV v. BULGARIA | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) (Conditional);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property) (Conditional);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev | 5. The applicants were born in 1959 and 1947 respectively and live in the village of Sinemorets, on the southern Black Sea coast. 6. The two of them have lived as a family since 1989. At that time, they resided in the town of Burgas, where the first applicant owned a flat, which in 2013 she donated to her daughter, who had lived in it with her family for a number of years. 7. The first applicant’s father and mother owned a plot of 625 square metres in Sinemorets. Following the death of the first applicant’s father in 1986 and ensuing division-of-property proceedings between his surviving wife and seven children, the first applicant’s mother was allotted 250 out of the 625 shares in the plot. In 1999 she transferred those shares, together with the nine sixteenths of the plot to which she was otherwise entitled as a heir of her late husband, to the first applicant. Combining the shares that she obtained as a result of this transfer and the one sixteenth of the plot that she had inherited from her father, the first applicant became the owner of 484.43 shares, or 77.5%, of the plot. On the plot, there existed a dilapidated one-storey cabin. 8. In 2004 the second applicant, who had been employed as a driver, suffered a myocardial infraction and was no longer able to work. In 2005 he was recognised as a disabled person and has since then been in receipt of a disability pension. At about that time, the two applicants moved from Burgas to Sinemorets, allegedly because they were no longer able to afford living in Burgas. They submitted that they put all their savings into the reconstruction of the cabin, converting it into a solid one-storey brick house. They did not apply for a building permit. The reconstruction took place in 2004-05. Since that time, the two applicants have lived in that house. In 2006 two of the other co-owners of the plot formally notified the first applicant that they did not agree with the reconstruction. According to the Government, there was evidence that the construction had not been finalised before 2009. 9. In 2006 the other ten heirs of the first applicant’s father and mother brought a claim against the first applicant, seeking a judicial declaration that they were the owners of 140.57 of the 625 shares of the plot and of the house built on it. The Tsarevo District Court dismissed the claim. On an appeal by the claimants, on 7 June 2009 the Burgas Regional Court quashed that judgment and made a declaration in the terms sought by the claimants, finding that they were the owners of 140.57 out of the total of 625 shares of the plot and the house built in the place of the old cabin. It also held that the first applicant was the owner of the remaining 484.43 shares of the plot and the house. The first applicant attempted to appeal on points of law, but in a decision of 22 June 2009 (опр. № 566 от 22.06.2009 г. по гр. д. № 1974/2009 г., ВКС, I г. о.), the Supreme Court of Cassation refused to admit the appeal for examination. In so doing, it held, inter alia, that by including the house in the declaration, the lower court had not erred because it was settled case-law that illegal buildings could be the objects of the right to property. 10. For most of the year, the first applicant is unemployed. Her only source of income comes from servicing vacation houses in Sinemorets during the late spring and summer. The second applicant inherited shares of several plots of land in another village, which he sold for a total of 1,200 Bulgarian levs (614 euros) in 2012-14. The applicants used the money to buy a second-hand car. 11. In September 2011, prompted by some of the other co-owners of the plot, municipal officers inspected the house and found that it had been constructed illegally. They notified their findings to the first applicant in October 2011. In July 2012 the municipality brought the matter to the attention of the regional office of the National Building Control Directorate. In October 2012 that office advised the first applicant that it had opened proceedings for the demolition of the house. In November 2012 officers of the Directorate inspected it and likewise found that it was illegal as it had been constructed without a building permit. 12. On 30 September 2013 the head of the regional office of the Directorate noted that the house had been constructed in 2004-05 without a building permit, in breach of section 148(1) of the Territorial Organisation Act 2001, and was as such subject to demolition under section 225(2)(2) of that Act (see paragraphs 25 and 26 below). The first applicant had not put forward any arguments or evidence to show otherwise. The house was therefore to be demolished. Once the decision had become final, the first applicant was to be invited to comply with it voluntarily. If she failed to do so in good time, the authorities would enforce it at her expense. 13. The first applicant sought judicial review of that decision. 14. On 10 December 2014 the Burgas Administrative Court dismissed the claim. It held that the decision was lawful. The evidence clearly showed that the applicants had constructed the house in 2004-05 without obtaining a building permit, which under section 225(2)(2) of the 2001 Act (see paragraph 26 below) was grounds for its demolition. The house could not be exempted from demolition under paragraph 16 of the transitional provisions of the 2001 Act or paragraph 127 of the transitional and concluding provisions of a 2012 Act for the amendment of the 2001 Act (see paragraphs 28 and 29 below). 15. The first applicant appealed. She submitted, inter alia, that the house was her only home and that its demolition would cause her considerable difficulties as she would be unable to secure another place to live. 16. In a final judgment of 17 March 2015 (реш. № 2900 от 17.03.2015 г. по адм. д. № 1381/2015 г., ВАС, II о.), the Supreme Administrative Court upheld the lower court’s judgment. It agreed that the house was illegal as it had been constructed without a building permit, that it was as such subject to demolition, and that, having been constructed in 2004-05, it could not be legalised under the transitional amnesty provisions of the 2001 Act or the 2012 Act. 17. On 15 April 2015 the regional office of the National Building Control Directorate invited the first applicant to comply with the demolition order within fourteen days of receiving notice to do so, and advised her that failure to do so would prompt it to enforce the order at her expense. 18. As the first applicant did not do so, on 6 August 2015 that office made a call for tenders from private companies willing to carry out the demolition; the deadline for submitting such offers was 15 September 2015. 19. On 18 August 2015 the Burgas Municipal Ombudsman urged the Minister of Regional Development to halt the demolition on the basis that, although formally lawful, it would have a disproportionate impact on the applicants. In response, on 25 September 2015 the Directorate’s regional office reiterated its intention to proceed with the demolition. 20. After the Government were given notice of the application (see paragraph 4 above), on 15 October 2015 the Directorate’s regional office asked the municipal authorities to explore whether, if necessary, they could provide alternative accommodation for the first applicant. Until 27 October 2015, date of the latest information from the parties on that point, the municipal authorities had not replied to that query, and the Directorate’s regional office had for that reason not proceeded with the demolition. 21. On an unspecified date in the second half of October 2015, again after notice of the application had been given to the Government, a social worker interviewed the first applicant and explained to her the possibilities to request social services. The first applicant stated that she was not interested in that because she preferred to remain in the house. 22. According to a register available on the website of the National Building Control Directorate (link), on 10 March 2016 the demolition had not yet been carried out. | 1 |
test | 001-147868 | ENG | ARM | CHAMBER | 2,014 | CASE OF GHASABYAN AND OTHERS v. ARMENIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 6. The applicants were born in 1945, 1981, 1971 and 1972 respectively and live in Yerevan. 7. The applicant Levon Ghasabyan (hereafter, the first applicant) owned a flat which measured 57 sq. m. and was situated at 25 Byuzand Street, Yerevan. The remaining three applicants – the first applicant’s family members who resided in the same flat – allege that they enjoyed a right of use in respect of that flat. 8. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs for town-planning purposes, having a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. A special body, the Yerevan Construction and Investment Project Implementation Agency (hereafter, the Agency) was set up to manage the implementation of the construction projects. 9. On 1 December 2004 the first applicant’s flat was valued upon the request of the Agency by a valuation organisation. The market value of the flat was estimated at 23,640 United States dollars (USD). 10. By a letter of 14 January 2005 the Agency informed the first applicant that his flat was subject to expropriation and that it had been valued at USD 23,640, and offered him this amount as compensation. An additional sum of USD 14,827.01 was offered to him as a financial incentive if he signed an agreement within five days. 11. By a letter of 18 January 2005 the first applicant expressed his consent to sign an agreement but disagreed with the amount of compensation offered. 12. On 20 January 2005 the Agency lodged a claim against the first applicant, seeking to oblige him to sign an agreement on the taking of his flat for State needs and to have him and his family members evicted. 13. On 3 March 2005 the Kentron and Nork-Marash District Court of Yerevan granted the Agency’s claim, ordering the first applicant to sign an agreement for the total amount of USD 23,640 and that he and his family members be evicted. 14. On 15 March 2005 the first applicant lodged an appeal. The remaining three applicants allege that they unsuccessfully sought to be recognised as parties to the proceedings, despite the fact that they enjoyed a right of use in respect of the flat in question and the fact that their eviction was ordered by the District Court. 15. On 12 April 2005 the Civil Court of Appeal granted the Agency’s claim upon appeal and dismissed that of the first applicant. 16. On 27 April 2005 the applicants jointly lodged an appeal. 17. On 26 May 2005 the Court of Cassation examined the appeal only in its part concerning the first applicant and decided to dismiss it. 18. On an unspecified date the awarded sum was paid to the applicants. | 1 |
test | 001-177080 | ENG | NOR | CHAMBER | 2,017 | CASE OF M.L. v. NORWAY | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer | 5. The applicant, born in 1987, is the mother of two children, who are half-brothers. Her older son, born in 2008, was taken into permanent public care by the authorities in 2010 and placed with the applicant’s mother and stepfather. Her younger son, X, was born in February 2012. The applicant has been diagnosed as having a hyperkinetic disorder and has had a history with psychiatric treatment. 6. On 15 June 2012, after receiving notifications from the authorities and a private individual regarding the applicant’s inability to take care of X, the municipal child welfare authorities decided to place him in emergency foster care. On 29 June 2012, that decision was upheld by the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker). 7. The emergency placement was followed up by the child welfare authorities with a petition of 6 July 2012 to the Board for a public care order. The authorities requested that X be placed in a foster home and that the applicant be granted supervised access rights. Concerning the question of where he should be placed, the authorities essentially stated that the applicant’s mother and stepfather had previously been approved as foster parents for the applicant’s older son (see paragraph 5 above). However, the ability to cooperate was necessary for those wanting to be foster parents and there had been some conflict between the applicant’s mother and the authorities. Moreover, the applicant’s mother and stepfather were considered to be relatively old (having been born in 1962 and 1955, respectively) to serve as foster parents to a small child, and the applicant’s mother had recently been ill. Furthermore, the applicant’s mother had not made visiting the applicant’s younger son her priority. In these circumstances, it would not be in X’s best interest to be placed with his maternal grandmother and her husband – the applicant’s mother and stepfather. 8. The applicant objected to the request for an order of public care in respect of her younger son X and maintained that, if such an order be granted, he should be placed with her mother and stepfather. In her view, the child welfare authorities had not properly evaluated that possibility. Her mother’s alleged inability to cooperate had in fact merely been a question of disagreement. The applicant’s mother and stepfather had been aware of the applicant’s difficulties and had helped her. They had also been approved as foster parents to the older son, who had developed well and had positive references from his kindergarten. Their age was not in itself of importance, given that other circumstances were in favour of their acting as his foster parents. To place X with them would be more stable and less stigmatising than an external placement. 9. On 26 October 2012, after hearing the parties and ten witnesses, the County Social Welfare Board granted the request for an order of public care. It decided that X should remain in the home in which he had already been placed as an emergency measure. 10. In its reasoning regarding the issue of the choice of foster home, the Board firstly noted that it was accepted that the applicant’s mother and stepfather had been generally approved as foster parents in connection with the care order in respect of the older son in 2010, but that this issue had to be assessed in view of the current situation, taking into account the best interest of the younger son X. On the specific question as to whether it would be in his best interest to be placed with them, the Board stated the following: “The Board sees that there are many positive sides to a placement within the family network, which justifies that such a placement be considered. The Board considers that the grandmother and her husband in many respects are well suited as foster parents for [X]. [According to] the grandmother, they have been asked whether they [are willing to] adopt [the older son]. Placing [X] with his maternal grandmother and her husband would mean that [the two sons] would grow up together. As the Board has previously mentioned, [X] may be inherently vulnerable. This is reinforced by the fact that the Board finds that it cannot be ruled out that the boy may have attention-related difficulties. Reference is made to the emergency foster mother’s description of the boy’s restlessness. In addition to the mother’s diagnosis and her considerable difficulties, it has emerged that her brother has also been diagnosed with attention deficit hyperactivity disorder (ADHD) and has considerable difficulties. This means that there is a risk of the boy having the same type of difficulties. The Child Welfare Service has referred to problems concerning cooperation between the maternal grandmother and agencies such as the Child Welfare Service and health workers. The Child Welfare Service in [the municipality] has also reported difficulties regarding cooperation. On the basis of the statements of the Child Welfare Service and the [younger son’s] health visitor, the Board finds that there have been challenges as regards their cooperation with the grandmother. However, the Board finds no grounds for concluding that these problems have been as serious as they might have initially seemed, and the grandmother’s explanations are to a certain extent plausible. The Board nonetheless finds reason to conclude that there have been some difficulties regarding cooperation. The grandmother has seen that [the applicant] has not been capable of caring for [the older son], and she has also been concerned about [the applicant]’s ability to look after [X]. In her statement to the Board, she still seemed to be uncertain about [the applicant]’s ability to care for the boy. She nevertheless largely left [the applicant] and the child to themselves shortly after the birth while they were staying with her. The Board further remarks that the grandmother had not arranged with the Child Welfare Service in [the municipality] that [the applicant] and [X] were to move in with her and [the applicant’s older son]. [The applicant] moved out of her mother’s house, together with [X] after a short period, even though the grandmother realises that [the applicant] faces challenges as regards running a home. The Board has noted that the grandmother has not attended the contact sessions and thus not seen [X] since he was placed in care. The grandmother and her husband are relatively old to be foster parents to such young children. [The applicant]’s mother was born in 1962 and her husband in 1955. The Board considers it likely that [X]’s placement in care will be long-term. Although age alone is not decisive in relation to the choice of foster home, it is a factor in the assessment. The maternal grandmother and her husband already have a foster child who is four years old, and it will require a lot of energy on their part to have another foster child ... who is also younger than the one they [already] have. Taking care of [X] could also affect the situation of [the older son], who they already have care of and must look after. The Board has found that its doubts about placing [X] with his grandmother and her husband are so serious that the disadvantages outweigh the advantages. The reason is the uncertainty relating to the boy’s vulnerability and the strain that another foster child would entail, regardless of whether or not this child has special needs, the grandmother’s and her husband’s age and certain difficulties regarding cooperation.” 11. On the basis of the above, the Board arrived at the conclusion that X should not be placed with his grandmother and her husband. On 27 January 2013 X was transferred from the emergency home to a foster home. 12. The applicant appealed to the local City Court (tingrett), which held an oral hearing from 4 until 6 June 2013. In accordance with section 36-4 of the Dispute Act (see paragraph 22 below), the court’s bench comprised one professional judge, one psychologist and one lay person. It heard fourteen witnesses in addition to the parties. The applicant was present, was represented by counsel, and gave testimony. 13. In its judgment of 22 July 2013, the City Court upheld the County Social Welfare Board’s decision in full. 14. With respect to the applicant’s caring skills and X’s care needs, the City Court reiterated the findings of the County Social Welfare Board and the court-appointed expert. It concluded that there were beyond doubt serious deficiencies in the applicant’s daily care of and personal contact with X, and that it was necessary to place him in public care. 15. Turning next to the question of whether he could be placed with the applicant’s mother and stepfather, the City Court observed that they had been approved as foster parents when the applicant’s older son had been placed with them in 2010. It further noted that there were advantages to a child moving to a foster home comprising family members. X would in that case be placed within the family network. It had moreover been documented that the applicant’s mother and stepfather might well be suitable foster parents for him. Furthermore, it would be an advantage that the two sons would be allowed to grow up together. 16. The City Court nonetheless found that, in this case, there were no grounds for deciding that the applicant’s younger son should be placed in foster care with his maternal grandmother and her husband. In addition to referring to the Board’s assessment (see paragraph 10 above), the court quoted excerpts from the court-appointed expert, T.B., a specialist in psychology. 17. The expert did not recommend the placement of X with the applicant’s mother and stepfather. In the report she stated, inter alia: “Several factors have emerged that may have a bearing on the assessment of whether [X]’s grandparents can be his foster parents: Firstly, the grandparents’ age has been taken into account in the assessment. The undersigned does not see this as a decisive factor. Furthermore, it has been emphasised that [X]’s step-grandfather has himself mentioned that he is getting older, and that this may be perceived as an expression of doubt on his part. This has not had a decisive bearing on the undersigned’s assessment, either. The child’s step-grandfather comes across as an honest, responsible and reflective man who would be an excellent foster father for [X], even though he expresses some doubts himself. In addition, it has also been suggested that the Child Welfare Service has had difficulties in cooperating with the foster mother in respect of [the applicant’s older son]. To the undersigned, these so-called ‘cooperation difficulties’ seem to be nothing more than disagreements/challenges that the parties are capable of handling and working out. That is how the challenges are described by both the representative of the Child Welfare Service in [the municipality] and the grandmother herself. It must also be added that [the applicant]’s mother and stepfather cooperated with the undersigned in an impeccable manner during the investigation. They have had many difficult challenges over the years, and it would almost be strange if there had been no ‘friction’ during all this time. This has therefore not had any bearing on the undersigned’s assessment of the question of [X]’s foster home placement. What has been important to the undersigned’s assessment of this question, however, is, first of all, that [the applicant] has very different emotional ties to her two sons ..., in the sense that she seems to have renounced her role as mother of the [older son], while she must still be expected to make an effort to have as much contact as possible with [X]. This will necessarily be a problem for both boys if they are to live in the same foster home. Furthermore, there is good reason to believe that, if [X] is placed in foster care with [the applicant]’s parents, this situation will ... represent an opportunity for the contact between mother and child to constantly increase in scope, and thus be a hindrance to [X] in his development of a good attachment to his foster home. For the undersigned, this concern is based, not least, on the fact that [X]’s grandmother has clearly expressed to the undersigned that she primarily wants to be a mother to [the applicant]. However, the argument in favour of letting [X]’s grandmother and step-grandfather be his foster parents is of course the fact that [he] will then get to grow up together with his (half) brother. The undersigned is nonetheless of the view that this cannot carry more weight than the concerns mentioned above. This means that placing [X] in foster care with his grandparents is not recommended.” 18. Expert T.B. had upheld these assessments in her report during the main hearing, but also stated that there were “dilemmas” if the applicant’s mother and stepfather were to be chosen as foster parents. The City Court shared the expert’s concerns. Moreover, it pointed out that the two children had different needs and challenges. Although the older brother, according to the information received, was happy in his foster home with the applicant’s mother and stepfather, X, despite his young age, had experienced two broken relationships – firstly with his biological mother and then with his emergency foster mother. He had now formed an attachment with his new foster mother after he had moved into his latest foster home in January 2013. There would be a risk of “contact injury” (kontaktskade) – that is to say a serious impairment to his ability to form attachments – if he were to experience another broken relationship. From the foster mother’s testimony it was clear that he was developing well in the foster home and that he was happy and thriving. The City Court moreover emphasised the challenges associated with having two small boys of pre-school age living with people of the age of the applicant’s mother and stepfather. In addition, there was the issue of the applicant’s very different respective emotional relationships with the two boys, which also entailed special challenges, particularly if X were to be placed in foster care in the same home as that of his older brother. Overall, the City Court agreed with the County Social Welfare Board and the court-appointed expert that the applicant’s mother and stepfather should not be the foster parents of the applicant’s younger son. 19. The applicant lodged an appeal against the City Court’s judgment in so far as it concerned the choice of foster home. The High Court (lagmannsrett) refused leave to appeal on 15 October 2013, and on 3 December 2013 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg) rejected the applicant’s appeal against the High Court’s decision. | 0 |
test | 001-172105 | ENG | SRB | CHAMBER | 2,017 | CASE OF MITROVIĆ v. SERBIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 7. The applicant was born in 1943 and lived in Sremska Mitrovica. He died on 20 October 2014. 8. On 26 December 1993 the applicant was detained on remand by the “Police of the Republic of Serbian Krajina” (Policija Republike Srpske Krajine) under suspicion of murder. His detention was subsequently extended by the “investigative judge” (istražni sudija) on 29 December 1993 and by the “District Court of Beli Manastir” (Okružni sud u Belom Manastiru) on 25 January 1994, 15 February 1994, 8 April 1994 and 9 May 1994. 9. On 9 May 1994 the “District Court of Beli Manastir” sentenced the applicant to 8 years of imprisonment for murder. It found that the applicant, after a quarrel in which his neighbour accused him of war profiteering, intentionally shot the neighbour in the head with a rifle, leaving him dead on the spot. It further found that the entire event had taken place in front of several eyewitnesses. 10. On 21 July 1994 this sentence was confirmed by the “Supreme Court of the Republic of Serbian Krajina” (Vrhovni sud Republike Srpske Krajine). The applicant was then sent to serve his prison sentence in “Beli Manastir District Prison” (Okružni zatvor u Belom Manastiru). 11. All of the above institutions were at the relevant time under the control of the “Republic of Serbian Krajina” (Republika Srpska Krajina), an internationally unrecognised self-proclaimed entity established on the territory of the Republic of Croatia during the wars in the former Yugoslavia. The entity ceased to exist after the adoption of the Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium of 12 November 1995 (hereinafter Erdut Agreement) by which the Republic of Croatia assumed sovereignty over the entirety of its territory. The entity was never recognised as a state by the Respondent State. 12. Shortly after the adoption of the Erdut Agreement, and upon the request of the “Beli Manastir District Prison”, the applicant was transferred on 20 June 1996 to Sremska Mitrovica prison (Kazneno-popravni zavod Sremska Mitrovica), which is on the territory of the Respondent State. The reason for the transfer was listed as “security concerns”. No proceedings for recognition and enforcement of a foreign prison sentence were conducted by the authorities of the Republic of Serbia. 13. The applicant remained in Sremska Mitrovica prison until 5 February 1999, when he was released for annual leave until 15 February 1999. Due to the applicant’s failure to return to the prison on the specified date, a warrant for his arrest was issued. 14. On 7 July 2010, the applicant was arrested when he attempted to enter Serbia from Croatia. He was sent to Sremska Mitrovica prison to serve the remainder of his sentence. 15. The applicant remained in prison until 15 November 2012 when he was pardoned by the President of the Republic of Serbia and released. 16. On 4 February 2011 the applicant lodged a constitutional appeal challenging the lawfulness of his imprisonment. 17. On 10 May 2012 the Constitutional Court found that there was no violation of the applicant’s right to liberty. It concluded that the legal ground for the applicant’s detention was his conviction by the “Supreme Court of Serbian Krajina” of 21 July 1994. It further noted that the procedure governing the recognition of a foreign criminal sentence and its enforcement was not applicable in the applicant’s case because Serbian Krajina was not a state. The court concluded that the applicant’s transfer had been carried out for factual reasons – the deteriorating security situation in the war zone which could lead to the applicant’s escape from prison or his death. The court further noted that the applicant had been convicted of murder by which the right to life was violated, and that states have positive obligations to protect this right. It finally held that the lack of procedure for recognition of a foreign judgment was proportionate to the obligation to enforce a prison sentence for murder especially given that the applicant had access to the Constitutional Court which had the power to review the legality of his detention and that he had access to other procedures available to any other prisoner in Serbia, including the procedure for applying for a pardon. 18. On 7 March 2011 the applicant initiated civil proceedings for compensation for unlawful imprisonment. On 13 December 2012 the First Instance Court in Belgrade rejected the applicant’s claim finding that he had been lawfully convicted of murder by the courts of the “Republic of Srpska Krajina” and that his imprisonment cannot be considered as unlawful. On 16 April 2014 the Belgrade Appellate Court confirmed this judgment. On 6 June 2014 the applicant lodged an appeal on points of law before the Supreme Court of Cassation. On 8 July 2015 the Supreme Court of Cassation rejected the applicant’s appeal on points of law on procedural grounds, finding that the value of the dispute in question was below the applicable statutory threshold. | 1 |
test | 001-183946 | ENG | GEO | CHAMBER | 2,018 | CASE OF TCHOKHONELIDZE v. GEORGIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1956 and lives in the village of Tsereteli, Marneuli Region, Georgia. 6. On 1 December 2005 a certain individual, Ms K., applied to the Governor of the Marneuli Region for the permit necessary for the construction of a petrol station on a plot of land situated in the region. The Governor assigned the examination of the application to the applicant, his deputy, who was responsible for the development of the region’s infrastructure and the management of State lands. 7. A meeting between the applicant and Ms K. took place on the same day, 1 December 2005, in the former’s office. According to the official version of events, during the meeting, when Ms K. enquired about the necessary documents and applicable procedure for the issuance of the construction permit, the applicant replied that, apart from the necessary formalities, she would also need to make a pay-off (ქრთამი) to the amount of 30,000 United States dollars (USD); of this amount, USD 20,000 would be the share of the Governor himself, whilst the rest would be divided between the applicant and representatives from the various agencies involved. 8. On 6 December 2005 Ms K. informed the Department of Constitutional Security of the Ministry of Internal Affairs (“the DCS”) that the applicant had requested a bribe from her in return for a promise to assist her in obtaining the requisite construction permit. She expressed her readiness to cooperate with the DCS. The authority immediately opened a criminal case into Ms K.’s allegations (“the bribery case”). 9. Still on 6 December 2005, the General Public Prosecutor’s Office (“the Prosecutor’s Office”) issued the DCS with a general authorisation to remain in charge of the bribery case and to conduct all types of investigative measures necessary. 10. By rulings dated 7 December 2005, the Tbilisi City Court authorised secret video surveillance of the applicant’s meetings with Ms K., as well as the tapping of their telephone conversations. 11. On 8 December 2005 Ms K. bought a plot of land from another private individual, Ms N. (hereinafter “the sales agreement”), for the purpose of constructing a petrol station on it. On the same day, the applicant contacted a notary and the head of the Land Registry of the Marneuli Region, requesting them, respectively, to certify the sales agreement and to register, in an expedited manner, the plot in Ms K.’s name. 12. On 12 December 2005 Ms K. brought to the applicant’s office the sales agreement and a record from the Land Registry of the Marneuli Region confirming her title to the newly acquired plot of land. During that second meeting, which was secretly filmed by Ms K., the applicant reiterated his request for a bribe. He asked her to bring USD 10,000 as a down payment, emphasising that this sum was not supposed to cover any official fees or charges prescribed by law for the issuance of a construction permit. Ms K. promised to bring the sum the following day. 13. On 13 December 2005 Ms K. brought USD 10,000 to the applicant in cash. The banknotes had been pre-marked with a special substance by the DCS. The meeting took place in the applicant’s office, and it was secretly filmed by Ms K. and closely supervised by the DCS. As soon as Ms K. handed over the money to the applicant, DCS officers entered the room and arrested the applicant. 14. A search of the applicant’s person was conducted on the spot, which led to the discovery of the banknotes in the right inner pocket of his suit. The law-enforcement officers immediately examined the banknotes using a special lamp and observed the marks made by a substance previously applied by the DCS. The same substance was also detected on both of the fingers of the applicant’s hands and on the clothing of his suit. The accuracy of these findings was later confirmed by a forensic chemical examination. 15. On 14 December 2005 the applicant was charged, under Article 338 § 2 (b) of the Criminal Code of Georgia, with the crime of requesting a bribe in a large amount. 16. The results of an examination of the secret recordings of the various meetings between the applicant and Ms K. confirmed the authenticity of those recordings. On 8 February 2006 the investigator in charge of the case acquainted the applicant and his lawyer with the results of the abovementioned forensic examinations. The accused party did not contest that evidence. 17. When questioned by the Bolnisi District Court, the applicant, who was represented by two lawyers of his choice, complained that he had been entrapped by the DCS. He stated that he had never had any intention of accepting a bribe but had been helping Ms K. out of good will, as he had considered her to be a distant relative. He confirmed that he had been assisting Ms K. in the various administrative formalities related to the purchase of the relevant land. The applicant furthermore admitted to having received money to the amount of USD 10,000, from the applicant, but added that the sum had been meant to be transmitted to a construction company as an advance payment for its upcoming construction of the petrol station. He stated that he could not explain why Ms K. would have wished to induce him to accept a bribe. 18. When questioned by the trial court for the first time on 20 April 2006, Ms K. stated that she had met the applicant in his office and informed him of her intention to construct a petrol station. She had falsely presented herself as his distant relative in order to obtain the applicant’s favour more easily. Ms K. confirmed that the applicant had then assisted her with the relevant administrative formalities with the notary and the Land Registry of the Marneuli Region. As to the sum of USD 10,000, Ms K. stated – reiterating the applicant’s version of events – that it had been intended that the money would be paid through the applicant’s offices to a private construction company in relation to the ongoing construction project of a petrol station. Ms K. emphasised that she had never been sure that the applicant had intended to retain any part of the above-mentioned sum for his personal benefit. Nevertheless, still suspecting that there might have been illegal intent involved in the applicant’s wish to be involved in the money transfer, Ms K. had decided to inform the DCS of her conversation with the applicant. 19. On 2 May 2006 the prosecutor in charge of the applicant’s criminal case instituted criminal proceedings against Ms K. for giving conflicting witness statements, on the grounds of the alleged inconsistency between the statements that Ms K. had originally given to the DCS during the investigation stage and those given before the trial court on 20 April 2009. 20. On 3 May 2006 Ms K. requested that the Bolnisi District Court hear her again in relation to the applicant’s case, stating that she had forgotten to testify in respect of a number of significant factual details when the court had previously heard her on 20 April 2006. 21. On 17 May 2006 Ms K. lodged a complaint with the Prosecutor’s Office in respect of the initiation of the criminal proceedings against her (see paragraph 19 above). She submitted that the statements she had given to the trial court on 20 April 2006 had been truthful and had fully reflected the content of her several meetings with the applicant, which could have been verified by examining the relevant secret video and audio recordings. 22. When questioned by the trial court on 23 June 2006, both the notary who had certified the sales agreement and the head of the Land Registry of the Marneuli Region confirmed that the applicant had been urging them to expedite the registration of Ms K.’s title to the plot of land on which a petrol station was scheduled to be constructed. The two witnesses furthermore stated that the plot still constituted Ms N.’s property, given that the sales agreement had been annulled shortly after having been concluded. 23. Allowing a request lodged by the applicant on 23 June 2006, the trial court admitted to the criminal case file as evidence a recording of a television programme and a newspaper article in which Ms K. had publicly acknowledged having been an DCS undercover agent in four other unrelated criminal cases. 24. On 7 July 2006 Ms K., who at that time had already been placed in pretrial detention in relation to the criminal proceedings instituted against her for giving conflicting witness statements, was heard by the Bolnisi District Court for the second time. She confirmed the statements that she had given during the investigation stage. Namely, she testified that the applicant had clearly requested her to pay “unofficially” the sum of USD 30,000 in return for promised assistance with the construction project, of which sum USD 20,000 was supposed to go, according to the applicant, to the Governor. She stated, however, that she did not know whether the applicant had any intention of retaining any part of the remaining USD 10,000 for his personal benefit. Ms K. also confirmed that the applicant had indeed conducted negotiations with a number of construction companies on her behalf at that time. 25. Ms K. did not deny that, prior to her involvement in the case against the applicant, she had acted as an undercover agent for the DCS in four other unrelated cases. She further stated before the trial court that she had already acted as an undercover agent of the DCS when she had approached the applicant for the first time on 1 December 2005. She stated that the initial objective of that undercover anti-criminal operation, led by the DCS, had been to expose the criminal activity of the Governor of the Marneuli Region. Notably, the DCS had been in possession of information that the Governor had been prone to requesting bribes in return for providing various public services. It was only after that initial plan had failed that the law-enforcement agency’s attention had shifted towards the Governor’s deputy, the applicant. Ms K. also stated that the sales agreement in respect of the plot of land had been annulled shortly after the applicant’s arrest, as it had in fact been a fictitious transaction concluded under the DCS’s close supervision. According to Ms K.’s statements, Ms N. had also been collaborating with the DCS at that time, and the first meeting between Ms K. and Ms N. had taken place on the DCS’s premises. 26. On 7 July 2006 the applicant requested the trial court to summon Ms N. as an additional witness so that he could question her in relation to her purported collaboration with the DCS and role in the sequence of the events which had led to the initiation of the criminal proceedings against him (see the preceding paragraph). In reply, the Prosecutor’s Office claimed that it had already attempted to summon Ms N. as a witness, but that the latter’s whereabouts were unknown. Relying on that standpoint, the Bolnisi District Court ruled that it was objectively impossible to summon Ms N. as a witness. 27. By a judgment of 17 July 2006, the Bolnisi District Court found the applicant guilty as charged and sentenced him to seven years’ imprisonment. The court stated that the collection of the evidence in the case file – the statements given during the trial by Ms K., the notary and the head of the Land Registry; the judicially authorised secret video and audio recording; and the results of the personal search of the applicant on 13 December 2005 and of the forensic chemical and phonoscope examinations – confirmed the applicant’s guilt beyond reasonable doubt. As regards the applicant’s statement that the money discovered on his person (USD 10,000) had not been a bribe but a valid advance payment for preparatory works associated with Ms K.’s construction project, the District Court answered that this was not supported by the totality of the collected evidence; it did not provide any additional explanation in that respect. As to the applicant’s argument that he had been induced to commit the offence in question by Ms K., who had been an agent provocateur of the DCS, the court did not address that argument at all. 28. On 15 August 2006 the applicant lodged an appeal with the Tbilisi Court of Appeal against his conviction, reiterating his complaint alleging entrapment and reasserting his version of events. 29. On 18 October 2006 the examination of the applicant’s appeal by the Tbilisi Court of Appeal began. During a hearing held on 8 November 2006, the applicant – referring to statements given by members of his family that they had recently seen Ms N. at her house – the applicant requested the appellate court to summon the latter so that he could finally question her. The appellate court granted the applicant’s request. 30. Ms N. was scheduled to appear before the appellate court on 1 December 2006, but failed to do so. The applicant noted that his family members, who were living in the same village (Orjonikidze) as Ms N., had approached her and asked her to testify before the court, but the latter had refused the request in a resolute manner. The Prosecutor’s Office noted that it had been unable to secure Ms N.’s appearance but promised to do so for the next hearing, which was scheduled for 6 December 2006. 31. On 2 December 2006 Ms N. submitted a written statement to the Tbilisi Court of Appeal. Noting that she had recently learned of the ongoing examination of the applicant’s criminal case, she stated that she was unable to appear as a witness before the appellate court because of her difficult family situation. Ms N. stated, in particular, that her aged mother had been seriously ill and remained under her constant supervision. 32. On 6 December 2006 the Prosecutor’s Office presented a handwritten letter from Ms N.’s neighbours dated 4 December 2006, according to which the witness had long abandoned her house in the village and her current whereabouts were unknown. The Tbilisi Court of Appeal ruled that it was objectively impossible to summon Ms N., as her whereabouts could not be identified. 33. By a decision of 6 December 2006, the Tbilisi Court of Appeal rejected the applicant’s appeal and upheld his conviction of 17 July 2006 in full. As with the first-instance court, the applicant’s argument about his alleged entrapment by the victim, the DCS’s agent provocateur, was left unanswered by the appellate court. The appellate court rejected as unfounded the applicant’s argument that the USD 10,000 had been meant to be used as an advance payment for construction works. The court noted in this connection that by the time the applicant had received the sum from Ms K. the construction permit had not been issued, and neither had an architectural plan and expenditure estimate been drawn up. 34. On 16 April 2007 the Supreme Court of Georgia, rejecting an appeal by the applicant on points of law as inadmissible, finally terminated the proceedings. 35. On 24 November 2008 the applicant was granted early release from prison under a presidential pardon. | 1 |
test | 001-142405 | ENG | HUN | COMMITTEE | 2,014 | CASE OF KIS AND BOZA v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | András Sajó;Egidijus Kūris;Helen Keller | 4. The applicants were born in 1959 and live in Budapest. 5. On 27 October 2003 the applicants started labour-law litigation concerning their resignation and its legal and pecuniary consequences. On 21 May 2009 the Budapest Labour Court gave judgment, partly finding for the plaintiffs. On appeal, on 9 June 2010 the Budapest Regional Court reversed part of the decision. On 18 January 2012 the Kúria upheld the second-instance decision. | 1 |
test | 001-180483 | ENG | TUR | COMMITTEE | 2,018 | CASE OF AYMELEK v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić | 5. The applicant was born in 1960. 6. At the time of the events the applicant was serving in the Turkish Army as a lieutenant-colonel. 7. On 8 May, 10 May and 11 May 2000, the applicant was interrogated by the military prosecutor within the context of a criminal investigation initiated against him for embezzlement. 8. On 16 June 2000 an arrest warrant was issued in respect of the applicant on suspicion of embezzlement. 9. 19 June 2000 the applicant applied to the Military Prosecutor’s Office. He was placed in detention on remand on the same day by the General Staff Military Court. 10. On the same day, the applicant gave a power of attorney to a lawyer. 11. On 22 June 2000 the applicant’s brother Şükrü Aymelek, who was a lawyer, was also placed in detention on remand. On 10 April 2012 the applicant’s brother was released. 12. On 26 June 2000 the General Staff Military Prosecutor filed a bill of indictment with the General Staff Military Court charging the applicant with embezzlement under Section 131 of Military Criminal Code, involving in trade activities as a soldier under Additional Section 1 of Military Criminal Code and breaching Article 13 of the Law No. 3628 (Law on Disclosure of Assets and Fight Against Bribery and Corruption). The siblings of the applicant, Şükrü Aymelek and Ulviye Toprakkıran were also charged with the same bill of indictment with embezzlement and breaching Article 13 of the Law No. 3628. 13. On 29 May 2001 the General Staff Military Prosecutor filed an additional bill of indictment and charged the accused with additional acts related to the crimes already stated in the first bill of indictment. 14. On 19 September 2001, the applicant submitted a petition with the prison authorities, complaining that he had not been able to see his brother Şükrü Aymelek, who was also detained in remand. The applicant stated that he regretted that his brother was also in prison because of him, and requested to see him. 15. On 19 September 2002 the applicant was found guilty and sentenced to imprisonment for embezzlement and being involved in trade activities as a soldier by the General Staff Military Court, composed of a military officer with no legal background and two military judges. 16. On 6 January 2003 the applicant appealed against the decision of the General Staff Military Court. 17. On 2 April 2003 the Military Court of Cassation quashed the judgment of 19 September 2002 on procedural grounds and on the merits. 18. On 17 December 2003 the General Staff Military Court found the applicant guilty for embezzlement and being involved in trade activities as a soldier, but reduced his prison sentence. The applicant appealed. 19. On 2 June 2004 the Military Court of Cassation upheld the decision of 17 December 2003. 20. On 13 January 2014 the applicant requested from the Military Court of Cassation to reopen the criminal proceedings alleging that a witness who had not been heard, was ready to give statements before the court. The applicant submitted that witness’ written statements to the Military Court of Cassation as well. 21. On 19 February 2014 rejected the applicant’s request for reopening of the criminal proceedings, on the grounds that the witness’ statements did not have any evidential value, which could warrant a lesser sentence or the acquittal of the applicant. | 1 |
test | 001-160619 | ENG | LIE | CHAMBER | 2,016 | CASE OF A.K. v. LIECHTENSTEIN (No. 2) | 3 | Preliminary objection joined to merits and dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Impartial tribunal);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits | 6. The applicant was born in 1970 and lives in St. Gallenkappel, Switzerland. 7. Since 2004, the applicant and F.H. have been involved in legal disputes against each other concerning the property rights in 75% of the bearer shares in both EMK stock company (hereinafter “EMK”) and EMK Engineering stock company (“EMK Engineering”), companies resident and registered in Liechtenstein. 8. In September 2006 and April 2007 the Regional Court (Fürstliches Landgericht) ordered by way of an interim measure that F.H.’s entry in the commercial register as a member of the EMK and the EMK Engineering companies’ respective supervisory boards with power to represent those companies may not be cancelled. 9. On 10 June 2005 F.H. brought an action against the applicant in the Regional Court. He requested that the court oblige the applicant to hand over a specified number of bearer shares in EMK and in EMK Engineering and establish that the applicant did not hold and had never held any shares in those Liechtenstein companies. The action was served on the applicant’s counsel on 18 June 2005. 10. In a decision dated 15 July 2005 the Regional Court, following a hearing on 14 July 2005, dismissed the applicant’s objection to the Liechtenstein courts’ jurisdiction (file no. 02 CG.2005.163). It found that it had jurisdiction on grounds of location of assets (Vermögensgerichtsstand) to decide upon F.H.’s action. The applicant had assets in Liechtenstein, specifically claims for salary and fees against EMK and EMK Engineering, which both had their seat in Liechtenstein. Furthermore, F.H.’s action for restitution of the bearer shares in these corporations was of a pecuniary nature. 11. In a decision dated 1 February 2006 the Court of Appeal, in interlocutory proceedings, dismissed the applicant’s appeal of 6 September 2005 against the Regional Court’s decision of 15 July 2005. 12. Following a constitutional complaint of 22 February 2006, on 1 March 2006 the Constitutional Court granted the applicant’s application to have the Court of Appeal’s interlocutory decision be given suspensory effect. It further ordered the Regional Court not to hold any further hearings in the proceedings at issue until the Constitutional Court had taken its decision on the applicant’s constitutional complaint. 13. On 27 March 2007 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded (file no. StGH 2006/16). 14. Following the termination of the proceedings before the Constitutional Court, the Regional Court resumed the proceedings. It heard evidence from the parties, their counsel and twelve witnesses in person in hearings on 31 May, 28 June and 6 September 2007. It further took note of the written submissions of the parties and of numerous documents as well as of the case files in several related proceedings. 15. On 22 April 2009 the applicant asked the Regional Court to deliver its judgment, given that the oral proceedings had concluded on 6 September 2007. 16. On 28 December 2009 the Regional Court, in a judgment running to 66 pages, upheld F.H.’s action (file no. 02 CG.2007.114). It ordered the applicant to hand over a specified number of bearer shares in EMK and in EMK Engineering to F.H. and declared that the applicant did not hold and had never held shares in those companies. 17. Having regard to the evidence before it, the Regional Court considered that F.H.’s submissions regarding the question of who had been the owner of the shares in dispute had been more credible than that of the applicant. It found that the applicant’s mother, I.K., had never obtained ownership of the shares in question as there had not been a sales contract between her and F.H. She had been in possession of the shares in order to make a minority shareholder think that F.H. was no longer holding shares in the companies. The applicant had known this on conclusion of his contract with I.K. transferring the shares to him as a gift in 2003 at the latest. I.K. had not, therefore, been the owner of or authorised to transfer ownership of the shares to the applicant; the latter had not obtained ownership thereof for lack of good faith. 18. Following a hearing, on 27 May 2010 the Court of Appeal, endorsing the findings of the Regional Court, dismissed the applicant’s appeal dated 3 February 2010. It considered that the Regional Court had taken all evidence necessary for its decision. It further rejected new documentary evidence submitted by the applicant to support his allegations as inadmissible for having been submitted out of time in an attempt to protract the proceedings. The judgment was served on the applicant’s counsel on 30 June 2010. 19. In a judgment and decision dated 13 January 2011 the Supreme Court dismissed an appeal on points of law lodged by the applicant on 7 September 2010. It found that the lower courts had not made an error of law in the legal classification of the facts they had established, that they had not failed to take necessary evidence and that they had sufficiently reasoned their judgments. The judgment and decision were served on the applicant’s counsel on 25 January 2011. 20. On 18 February 2011 the applicant lodged a constitutional complaint (running to eighty pages plus annexes) with the Constitutional Court against the Supreme Court’s judgment and decision. Relying, inter alia, on Articles 6, 13 and 14 of the Convention and on Article 1 of Protocol No. 1 to the Convention, the applicant complained, in particular, about the length of the proceedings. He stressed that the outcome of the proceedings, to the duration of which he had not contributed, was of vital importance to him as it concerned his means of subsistence. He further submitted in that context that he had not had at his disposal an effective remedy, such as an application to speed up the proceedings, in order to enforce his Convention rights. 21. On 3 March 2011 the President of the Constitutional Court granted the applicant’s application to have his complaint given suspensory effect. The court reserved its decision on the costs arguing that the duty to bear the costs depended on the outcome of the main proceedings. The applicant would have only had to bear the decision fee if his constitutional complaint had been dismissed. 22. On 24 March 2011 F.H. lodged a submission in reply to the applicant’s constitutional complaint. 23. On 20 April 2012 the President of the Constitutional Court, B., informed the applicant that he, alongside Judges Bu., Sn., S. and W., would decide on his constitutional complaint in a hearing in camera on 15 May 2012. 24. On 8 May 2012 the applicant lodged a complaint alleging bias (running to twenty-seven pages plus annexes) against the five judges of the Constitutional Court called upon to decide on his complaint. 25. The applicant argued, in particular, that all of the five challenged judges had taken arbitrary decisions to his disadvantage and in breach of his Convention rights in relation to the previous injunction and other proceedings brought by him, and that the court, which was influenced by the executive, discriminated against foreign nationals such as the applicant. 26. The applicant further submitted that, for different reasons, the five judges of the Constitutional Court individually had not been impartial. As regards the court’s President, Judge B., the applicant complained that he had delayed the appointment of the judges who were to decide on his complaint. Moreover, he was a close friend of H., the court’s Vice President and brother of F.H., the party opposing the applicant in the proceedings at issue. 27. According to the applicant’s submission, Judge Bu. was biased because he worked for the Government drawing up expert reports on constitutional questions and giving seminars organised by the Government. He further worked with Judge H. on a regular basis. 28. Judge Sn., for his part, was not impartial as he was also a professor at the Liechtenstein University and had himself argued in a publication that judges should be appointed for life or for a long single term of office. 29. The applicant further stressed that Judge S. was a member of the supervisory board of a state-owned company and was therefore not independent and impartial. 30. Finally, Judge W. was a partner in a law firm with a lawyer against whom the applicant had brought proceedings concerning an inheritance. Another lawyer of that firm had already represented EMK and EMK Engineering. Moreover, Judge W. had previously worked as a lawyer in Judge H.’s law firm. 31. By a decision of 15 May 2012, the Constitutional Court, with the five judges whom the applicant had challenged for bias comprising the bench, dismissed the applicant’s complaints of bias. 32. The Constitutional Court stated that, in accordance with the principle that, if possible, a complaint of bias should not be decided upon by the challenged judge, the challenged judges, respectively, had not participated in the deliberations and the decision on the respective complaint alleging bias against them, which had been decided upon by the four remaining judges. 33. The Constitutional Court considered that the fact alone that several of the challenged judges had already taken part in prior decisions finding against the applicant did not suffice to substantiate that there were objectively justified doubts as to their impartiality for the purposes of Article 6 of the Convention. Moreover, the fact that the judges had been elected for five years did not compromise their impartiality. The applicant further had not substantiated that the executive had influenced the judges of the Constitutional Court in the present proceedings in any way. Nor did the fact that the judges concerned worked together with F.H.’s brother, the Vice President of the Constitutional Court, on a regular basis and were friends of the latter objectively cast doubts on their impartiality. 34. On the same day, on 15 May 2012, the Constitutional Court delivered its judgment (file no. StGH 2011/32). It granted the applicant’s constitutional complaint in part, finding that the applicant’s rights under Article 6 § 1 of the Convention and under the Liechtenstein Constitution to a decision within a reasonable time had been breached in the proceedings at issue. It ordered that Liechtenstein reimburse the applicant the fee for lodging the constitutional complaint (170 Swiss francs (CHF)) and bear the further court costs, that is to say, the judgment fee (CHF 1,700). It further ordered Liechtenstein to reimburse F.H., who, unlike the applicant, had been represented by counsel in the proceedings before the Constitutional Court, lawyers’ fees of CHF 2,694.40. 35. The Constitutional Court found that the total duration of the proceedings alone, which lasted almost seven years after the action of 10 June 2005 had been brought, did not justify the finding of a breach of the right to a decision within a reasonable time. It had to be noted in that context that almost two years had been necessary to deal with the interlocutory proceedings on the Liechtenstein courts’ jurisdiction brought by the applicant himself. Moreover, the courts had generally duly furthered the proceedings. There had only been a delay of two years and three months between the last hearing before the court of first instance on 6 September 2007 and the delivery of the judgment on 28 December 2009. Such a period of inactivity could no longer be considered as reasonable despite the complexity of the proceedings. Therefore, there had been a violation of Article 6 § 1 of the Convention. 36. The Constitutional Court noted that Liechtenstein law did not contain any provisions stipulating which consequences should result from a breach of the right to proceedings within a reasonable time. However, it would be utterly unjust if a breach of this constitutional right did not have any consequences as a result of a lack of legislative provisions. There was therefore a gap in the law which had to be filled by way of judicial interpretation. In the Constitutional Court’s view, it was therefore necessary to impose the costs of the proceedings (court costs and lawyers’ fees) upon the State in order to compensate for and redress the breach of the fundamental right at issue. However, the judgment fee could not be imposed on the State as a measure of compensation as Liechtenstein had to bear that cost anyway. 37. The Constitutional Court further dismissed the remainder of the applicant’s constitutional complaint. It considered that the applicant’s property rights had not been infringed in the proceedings at issue in which the opposing parties had both claimed to be the owner of the shares in question. Moreover, the Liechtenstein courts had been independent tribunals. In particular, F.H.’s brother, the Vice President of the Constitutional Court, had not taken part in the decision-making process of any of the Liechtenstein courts. Moreover, the findings of facts, the assessment of the evidence and the legal reasoning of the lower courts did not disclose any arbitrariness. 38. The judgment and the decision of 15 May 2012 were served on the applicant on 27 June 2012. | 1 |
test | 001-155196 | ENG | AZE | CHAMBER | 2,015 | CASE OF MEHDIYEV v. AZERBAIJAN | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 5. The applicant was born in 1961 and lived in Nakhchivan at the time of the events. 6. The applicant was an independent journalist and worked as a reporter of the Yeni Musavat newspaper in the Nakhchivan Autonomous Republic (“the NAR”). 7. The applicant was the author of two critical articles about the economic and political situation in the NAR published in the Yeni Musavat newspaper in August and September 2007. The articles, entitled “Food has become considerably more expensive in Nakhchivan (owing to Vasif Talibov’s “care”)” (“Naxçıvanda ərzaq xeyli bahalaşıb (Vasif Talıbovun “qayğısı” sayəsində)”) and “Vasif Talibov rebuilds his native village” (“Vasif Talıbov doğulduğu kəndi söküb yenidən tikdirir”), related in particular to the activities of the Speaker of the Parliament of the NAR, Vasif Talibov, who is also “the supreme official of the NAR” (“Naxçıvan Muxtar Respublikasının ali vəzifəli şəxsi”) under its Constitution of 29 December 1998. 8. On 17 September 2007 the applicant also met a reporter from Radio Liberty and helped him to prepare a report about the economic and political situation in Nakhchivan. 9. At around 2 p.m. on 22 September 2007, when the applicant was in a café in the village of Jalilkand in the Sharur District, the head (M.M.) of the district department of the MNS approached him. M.M. accused the applicant of publishing defamatory articles about the NAR, and ordered four men in uniform to arrest him. 10. The applicant was taken to the premises of the MNS in Sharur by car. His mobile phone was taken away while he was being transported there. When they arrived at the MNS building M.M. told him to stop spreading misinformation about the NAR. He further ordered agents of the MNS to explain to the applicant “the meaning of his activity as a reporter” and left the room. 11. Five men then began to torture the applicant. They hit him repeatedly with truncheons, kicked him and punched him in the head. Approximately an hour later, M.M. returned and asked the applicant whether he had “grown wise”. M.M. further ordered five men to make the applicant “understand his mistakes”. The applicant was then subjected to further ill-treatment. 12. The applicant was subsequently taken to the office of M.M. who demanded that he become a member of the ruling political party (YAP - Yeni Azərbaycan Partiyası) and to write defamatory articles about opposition leaders. The applicant refused to do so. 13. The applicant was released at 2 a.m. on 23 September 2007; his mobile phone was returned to him. Before his release, M.M. told him that if he did not “grow wise”, he would be brought back to the MNS. 14. Following his release, the applicant immediately informed the Yeni Musavat newspaper of his arrest. According to the applicant, his relatives also took photographs of the injuries on his body. However, he was unable to see a doctor immediately, because it was night. 15. The Government submitted that on 22 September 2007 the applicant was not arrested, detained or ill-treated, by agents of the MNS. 16. In the morning of 23 September 2007, while the applicant was about to go and see a doctor, he was arrested by the police and taken to the Sharur District Police Office. 17. The head of the Sharur District Police Office, M.H., shouted at the applicant, demanding to know why he had informed the press of his arrest. 18. On the same day the applicant was taken to the Sharur District Court, which sentenced him to fifteen days’ administrative detention for obstructing the police. The applicant was not represented by a lawyer at the hearing. Two police officers testified against him. The applicant was not provided with a copy of the court decision. 19. At the request of the applicant, after the court hearing he was taken to the Sharur Central Hospital, where he was examined by a doctor who observed numerous bruises on his body. However, he was not provided with any medical record. 20. At around 2.30 p.m. on 23 September 2007 the applicant was approached by the police in the centre of the Jalilkand village, because he was using loud and abusive language in public. As the applicant did not comply with the police request to stop his unlawful action, an administrative offence report was drawn up and he was taken to the police station. It appears from the report that the applicant refused to sign it. The relevant part of the report of 23 September 2007 provides as follows: “On 23 September 2007 H. Mehdiyev did not comply with the lawful request of the police, and continued to shout and use insulting language in the centre of the Jalilkand village.” 21. On the same day the Sharur District Court found the applicant guilty under Article 310.1 (obstructing the police) of the Code of Administrative Offences, and sentenced him to fifteen days’ administrative detention. It was specified in the decision that it could be appealed against within ten days of its receipt. The relevant part of the decision of 23 September 2007 provides as follows: “Assessing the evidence at its disposal, the court concludes that the fact that Mehdiyev Hakimeldostu Bayram oglu [the applicant] committed the above-mentioned administrative offence is proved by his confession and the statements of witnesses heard in connection with the case. The court qualifies the administrative offence committed by Mehdiyev Hakimeldostu Bayram oglu under Article 310.1 of the Code of Administrative Offences. Therefore, he must be found guilty under this article and must be punished.” 22. The Government produced a receipt confirming that the applicant had received a copy of the court decision at 5.30 p.m. on 23 September 2007. The receipt was dated 23 September 2007 and signed by the applicant. 23. At around 7 p.m. on 23 September 2007 the applicant was taken to detention facility no. 8 to serve his sentence. 24. During his detention the applicant was deprived of food and water. He was not provided with any bedding and was forced to spend nights outside on a concrete walkway. The applicants’ hands were handcuffed at all times and due to the detention facility’s proximity to the River Aras, he suffered badly from mosquito bites. 25. At midnight on 25 September 2007, the Minister of National Security of the NAR arrived at the detention facility with two other men. They appeared to be drunk. The Minister insulted the applicant and then all of them beat him. 26. The Government submitted that there was no detention facility no. 8 in the NAR and the applicant was detained in the temporary detention facility of the Ministry of Internal Affairs of the NAR. 27. The applicant was detained alone in a cell which was 2.8 metres high, 5.2 m long, and 2.2 m wide. The cell was adequately lit and ventilated. The applicant was provided with a separate bed and bedding, as well as with other necessities. In support of their account of the conditions, the Government produced photographs of the detention facility in question and the cell in which the applicant was held. 28. The Government also produced a medical record dated 16 December 2013 from the doctor on duty at the detention facility at the time. According to the medical record, at 7.45 p.m. on 23 September 2007 the applicant was examined by the doctor and “no pathology was revealed” (heç bir patalogiya aşkar edilmədi). The medical record of 16 December 2013 provides as follows: “Examination by the doctor on duty: At 7.45 p.m. on 23 September 2007 Mehdiyev Hakimeldostu Bayram oglu accompanied by two police officers came to the admission department for examination. During the examination of the citizen, no pathology was revealed. The blood pressure was 120/85 mm Hg. Practically healthy (praktiki sağlam). The doctor on duty: I.M.” 29. Following the applicant’s administrative detention, various Azerbaijani and international human rights organisations asked the Azerbaijani authorities for the applicant’s release. In particular, on 26 September 2007 Reporters Without Borders submitted a request to the Azerbaijani authorities to stop the applicant’s harassment because of his journalistic activities and to order his release. In respect of the applicant’s alleged ill-treatment by agents of the MNS on 22 September 2007, the request reads: “The day before his arrest, Mehdiyev was forced into a car by national security ministry agents and held all day in a ministry building where, according to Reporters Without Borders’ sources, he was beaten because of his reports about gas and electricity problems in the region.” On 27 September 2007 the Committee to Protect Journalists also called upon the Azerbaijani authorities to stop the applicant’s harassment because of his journalistic activities and to carry out a thorough investigation in this respect. The applicant’s alleged illtreatment by agents of the MNS on 22 September 2007 and his administrative detention were also covered by the Azerbaijani media. 30. On 27 September 2007 the applicant was released from administrative detention. No official reason was given for his early release from detention. 31. According to the applicant, after his release from detention, he was treated in the Nakhchivan Republic Hospital, however all the medical institutions refused to give him an official medical certificate. The doctor who examined the applicant told him that his seventh rib was broken. In support of his claim, the applicant relied on a medical record dated 1 October 2007 in which the doctor indicated that an X-ray examination of the applicant’s seventh rib had been carried out, without providing further information. Although the name of the doctor appeared on the medical record, it was not signed or stamped and there was no information about the medical establishment in which the examination was carried out. The medical record of 1 October 2007 provides as follows: “Mehdiyev Hakimeldostu Bayram oglu; born in 1961 in Jalilkand; X-ray examination of the ribcage and the seventh left side rib in the back armpit (sol yeddinci qabırğasının arxa qoltuqaltı).” 32. Relying on Articles 3, 5 and 10 of the Convention, on 3 October 2007 the applicant lodged a criminal complaint with the Sharur District Prosecutor’s Office asking for the institution of a criminal investigation. He submitted the same factual information as what he submitted to the Court (see paragraphs 9-14 above) i.e. that at around 2 p.m. on 22 September 2007 he had been arrested, at the request of the head (M.M.) of the district department of the MNS, in a café in the village of Jalilkand in the Sharur District by agents of the MNS, and had been taken to the premises of the MNS in Sharur. Once there M.M. demanded that he stop spreading misinformation about the NAR. He further ordered the agents of the MNS to explain to the applicant “the meaning of his activity as a reporter” and left the room. Five men then began to torture him. They hit him repeatedly with truncheons, kicked him and punched him in the head. Approximately an hour later, M.M. returned and asked him whether he had “grown wise”. M.M. further ordered the five men to make him “understand his mistakes”. He was then subjected to further ill-treatment and was only released at around 2 a.m. on 23 September 2007. Before his release, M.M. told him that, if he did not “grow wise”, he would be brought back to the MNS. 33. The applicant sent his complaint by recorded delivery and it appears from the postal document submitted to the Court that the Sharur District Prosecutor’s Office received it on 4 October 2007. 34. The applicant did not receive any reply to his complaint. 35. On 19 October 2007 the applicant lodged the same complaint with the Prosecutor General’s Office, the Ministry of Internal Affairs and the Ombudsman. The applicant produced postal documents confirming that the letters had been sent to the above-mentioned authorities. 36. By a letter of 25 October 2007 the Prosecutor General’s Office informed the applicant that it had forwarded his complaint to the Prosecutor of the NAR for examination. 37. On 7 November 2007 the applicant re-submitted the same complaint to the Sharur District Prosecutor’s Office by recorded delivery. The applicant produced a postal document confirming the receipt of his letter by the Sharur District Prosecutor’s Office. 38. By a letter of 23 November 2007, the Ministry of Internal Affairs informed the applicant that it had forwarded his complaint to the Minister of Internal Affairs of the NAR for examination. 39. No action was taken in respect of the applicant’s above-mentioned complaints. 40. On 9 February 2008 the applicant lodged an action with the Sharur District Court in accordance with the procedure established by Articles 449451 of the Code of Criminal Procedure concerning appeals against actions and decisions taken by the prosecuting authorities. Relying on Articles 3, 5 and 10 of the Convention, he reiterated his previous complaints and asked the court to declare unlawful the prosecuting authorities’ failure to examine his complaint. 41. The applicant did not receive any reply from the Sharur District Court. 42. On 17 March 2008 the applicant lodged a complaint with the Supreme Court of the NAR, reiterating his previous complaints. He further complained that the Sharur District Court had failed to examine his complaint concerning the prosecuting authorities’ inaction. 43. In the meantime, the applicant sent the same complaint to the Supreme Court of the Republic of Azerbaijan, complaining that the Sharur District Court had failed to examine his complaint. By a letter of 1 April 2008 the Supreme Court forwarded the applicant’s complaint to the Sharur District Court for examination. 44. By a letter of 29 April 2008, the Supreme Court of the NAR informed the applicant that his complaint could not be examined by it because, as an appellate court, it examined appeals only against firstinstance courts’ decisions. 45. On 28 July 2008 the applicant made representations to the Judicial Legal Council, stating that the Sharur District Court had failed to examine his complaint. 46. By a letter of 5 August 2008, the Judicial Legal Council forwarded the applicant’s complaint to the Sharur District Court, asking the court to examine the complaint and to take necessary measures. The Judicial Legal Council further asked the Sharur District Court to inform the applicant about the result of the examination. 47. On 8 January 2009 the applicant applied again to the Judicial Legal Council, arguing that, despite its letter of 5 August 2008 sent to the Sharur District Court, he had not been informed of any decision taken by the Sharur District Court. 48. By a letter of 14 January 2009, the Judicial Legal Council forwarded the applicant’s complaint to the Sharur District Court. The Judicial Legal Council’s letter of 14 January 2009 was identical in wording to its letter of 5 August 2008. 49. On 18 June 2009 and on 6 January 2010 the applicant sent further letters to the Sharur District Court, reiterating his previous complaints. 50. The applicant did not receive any response from the Sharur District Court. | 1 |
test | 001-159015 | ENG | NLD | ADMISSIBILITY | 2,015 | J.A. AND OTHERS v. THE NETHERLANDS | 4 | Inadmissible | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 1. The applicants are a mother, Ms J.A., born in 1963, and her two daughters R. and P., who were born in 1996 and 1999, respectively. All three applicants are Iranian nationals and are currently in the Netherlands. The President of the Section decided that the applicants’ identity should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). The applicants were represented before the Court by Ms I. Schalken, a lawyer practising in Apeldoorn. 2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, both of 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 2013, the applicants applied for asylum in the Netherlands. The examination and comparison of the applicants’ fingerprints and the verification of their identity in the European Union Visa Information System by the Netherlands authorities disclosed that on 24 July 2013 the Italian mission in Teheran had issued them with a visa for Italy. On 29 November 2013, the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie) rejected the applicants’ asylum requests, finding that, pursuant to Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”), Italy was responsible for the determination of the applicants’ asylum request. The Minister rejected the applicants’ argument that they risked treatment in breach of Article 3 of the Convention in Italy. The Minister also rejected as unsubstantiated the first applicant’s claim that she was dependent on the care of her sister who was living in the Netherlands since 1994. 5. The applicants’ appeal against the decision of 29 November 2013 and the accompanying request for a provisional measure were rejected on 23 January 2014 by the provisional measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zwolle, who upheld the Deputy Minister’s decision and reasoning. The provisional measures judge also rejected the first applicant’s argument that her medical situation did not allow her transfer to Italy, finding that the copy of her medical file submitted offered no concrete indication that in her case adequate treatment could not take place in Italy. 6. The applicants’ further appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State was rejected on 28 February 2014. The Division found that the appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision. 7. The application was introduced to the Court on 17 March 2014 and, on the same day, the applicants requested the issue of an interim measure within the meaning of Rule 39 of the Rules of Court. 8. On 2 April 2014, the President of the Section decided to adjourn the determination of the Rule 39 request pending the submission of factual information by the Government under Rule 54 § 2 (a) of the Rules of Court concerning certain practical aspects of the applicants’ transfer to Italy. 9. The Government submitted their answers on 15 April 2014. A copy was transmitted for information to the applicants. 10. On 16 April 2014, the applicants were notified by the Departure and Repatriation Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice that their transfer to Italy had been scheduled for 22 April 2014. 11. On 17 April 2014, the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicants to Italy until further notice. The President also decided under Rule 54 § 2 (a) to put additional factual questions to the Government about practical aspects of the applicants’ removal to Italy. 12. The Government submitted their answers on 9 May 2014 and the applicant’s written comments in reply were submitted on 10 June 2014. 13. On 3 December 2014, additional factual questions were put to the Government concerning the practical effects given to the Court’s judgment of 4 November 2014 in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)). 14. In their reply of 7 January 2015, the Government indicated that, following the Tarakhel judgment and where a case concerned a transfer of a family with minor children to Italy, the Netherlands authorities would only transfer such a family after guarantees had been obtained from the Italian authorities that the family would remain together and that information was available about the specific facility where the family was to be accommodated, in order to guarantee that the conditions there were suited to the age of the children. For this reason, the actual transfer to Italy was announced ten to fifteen days beforehand in order to give the Italian authorities the opportunity to provide information on the specific facility where the family was to be accommodated, to guarantee that the conditions in this facility were suitable and to guarantee that the family would not be split up. If these guarantees were not received within the time-limit for transfers as laid down in the Dublin Regulation, the persons involved would be channelled into the Netherlands asylum procedure. However, as long as a Rule 39 indication was in place, the Government was not in a position to commence the preparations for the applicants’ transfer to Italy. 15. The applicants’ comments in reply were submitted on 3 February 2015. They stated that no such guarantees had been obtained yet in respect of their transfer to Italy but that, in their view, such guarantees should be obtained before taking the actual transfer decision and not shortly before a scheduled transfer date. 16. Having noted these submissions, the Chamber decided on 24 March 2015 to lift the Rule 39 indication. 17. By letter of 5 August 2015, the Government submitted a copy of a circular letter dated 8 June 2015 and sent by the Dublin Unit of the Italian Ministry of the Interior (Ministero dell Interno) to the Dublin Units of the other member States of the European Union, in which the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children. In its relevant part, the Netherlands Government’s letter reads as follows: “A new policy was considered necessary in view of the fact that reception facilities, specifically reserved for such families, frequently remained unavailed of as a result of families having left for an unknown destination prior to transfer, or having obtained a court order barring their transfer. In order to safeguard appropriate facilities where families may stay together, the Italian authorities earmarked a total of 161 places, distributed over twenty-nine projects under the System for Protection of Asylum Seekers and Refugees (SPRAR). The authorities confirmed that this number will be extended should the need arise. As may be inferred from the letter of 8 June, this comprehensive guarantee is intended to avoid the need for guarantees in specific cases. The Dutch Dublin-Unit will continue to inform its Italian counterpart at an early stage of an intended transfer of a family with minor children. On 13 July 2015, the Dutch, German and Swiss migration liaison officers to Italy issued a report on SPRAR in general, including on the requirements the accommodations must fulfil, and on two projects they had visited on the invitation of the Italian Government. It is understood that later this year also the European Asylum Support Office (EASO) will report on the matter. The Government is of the opinion that the new Italian policy will adequately safeguard that families with minor children are kept together in accommodations appropriate to their needs.” 18. On 21 August 2015, the applicants informed the Court that they had been notified on 11 August 2015 that they should report to the police for the purpose of their placement in aliens’ detention (vreemdelingenbewaring) for the purpose of their transfer to Italy. They further requested the issue of an interim measure within the meaning of Rule 39 of the Rules of Court. 19. On 25 August 2015, the President of the Section decided to adjourn the determination of the applicants’ fresh Rule 39 request pending the submission of factual information by the Government under Rule 54 § 2 (a) of the Rules of Court concerning certain practical aspects of the applicants’ transfer to Italy. 20. The Government submitted their replies on 27 August 2015. They informed the Court that the applicants’ removal had been scheduled for 9 September 2015, that the Italian authorities had been informed that the transfer concerned a single mother with one adult and one minor daughter. They further submitted a copy of the standard form – prescribed under Article 31 of Regulation (EU) no. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the member State responsible for examining an application for international protection lodged in one of the member States by a third-country national or a stateless person – in which the Italian authorities had been notified on 4 August 2015 of the applicants’ transfer to Italy. Under the heading “State of health of the person(s) to be transferred” the following is stated: “Please note that this concerns a mother with two daughters, of which one is a minor (Tarakhel). The mother did not sign a declaration of consent to give you any information, however due to vital interest I would like to inform you that she has threatened with suicide concerning the transfer. She is not co-operative and will be escorted. She has explained that her daughters do not have any health issues.” 21. The applicants’ comments on the Government’s submissions of 5 and 27 August 2015 were submitted on 31 August 2015. They considered that the new policy set out in the circular letter sent by the Italian authorities on 5 June 2015 only contained guarantees of a general nature and that it was likely that the 161 places referred to in that letter would be far from enough. They submitted that no individual guarantees had been obtained and that it had not been guaranteed that the first applicant would be provided with adequate mental health care. They further informed the Court that the second and third applicants were attending school in the Netherlands and that, in their opinion, a transfer to Italy would not be in their interest. 22. Having noted the parties’ submissions, the President of the Section decided on 31 August 2015 to reject the applicants’ fresh Rule 39 request. 23. The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation have recently been summarised in Tarakhel, cited above, §§ 28-48); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98-117, 10 September 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy (dec.), no. 73874/11, §§ 31-34 and 3741, 18 June 2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013). | 0 |
test | 001-184003 | ENG | ROU | COMMITTEE | 2,018 | CASE OF KAYMAK AND OTHERS v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) | Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. | 1 |
test | 001-177429 | ENG | ARM | CHAMBER | 2,017 | CASE OF ADYAN AND OTHERS v. ARMENIA | 1 | Preliminary objection joined to merits and dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of conscience;Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 6. Mr Adyan (“the first applicant”) was born in 1991, while Mr Avetisyan, Mr Khachatryan and Mr Margaryan (“the second, third and fourth applicants”) were born in 1993. The first and second applicants live in Yerevan, while the third and fourth applicants live in Tsaghkavan and Kapan respectively. 7. The applicants are four Jehovah’s Witnesses who were found to be fit for military service. 8. In May and June 2011 the applicants were called up for military service. They failed to appear, and instead addressed letters to the local military commissariat (զինվորական կոմիսարիատ) and the regional prosecutor’s office, refusing to perform either military or alternative service. They stated that they were Jehovah’s Witnesses and that, having studied the Alternative Service Act, they had come to the conclusion that, by European standards, the service proposed was not of a genuinely civilian nature since it was supervised by the military authorities. Their conscience did not allow them to work directly or indirectly for the military system. The alternative labour service was known to be organised and supervised by the military authorities because the alternative labour serviceman’s record booklet was marked “Armed Forces of Armenia”, and alternative servicemen were subject to military discipline and penalties and had to register with the military subdivisions of the Armed Forces of Armenia. Furthermore, the law required that they remain at their place of service around the clock, seven days a week, which was akin to house arrest and was unacceptable to the applicants. The requirement to perform military service or the available alternative service violated their rights guaranteed by, inter alia, Article 9 of the European Convention on Human Rights. For the reasons stated above, their conscience did not allow them to perform the alternative service available in Armenia. The applicants added that they were willing to perform alternative service as long as it was not in any way connected with the military authorities and did not violate their religious beliefs. 9. On 15 June 2011 charges were brought against the second applicant under Article 327 § 1 of the Criminal Code (evasion of regular conscription for military or alternative service). 10. On 6 July 2011 the first and fourth applicants were arrested. 11. On 7 July 2011 the same charges were brought against the first and fourth applicants. Finding the investigator’s applications for their detention substantiated, the Syunik Regional Court decided to detain them. 12. On 28 July 2011 the Criminal Court of Appeal dismissed appeals lodged by the first and fourth applicants against the detention orders, finding, inter alia, that as the alleged offence carried a sentence of more than one year’s imprisonment, that increased the probability that the first and fourth applicants would commit a new offence or evade punishment if they remained at large. 13. On 27 July 2011 the same charges were brought against the third applicant and the Tavush Regional Court decided to detain him at the investigator’s request, finding that there was a reasonable suspicion that he had committed the offence with which he was charged. 14. On an unspecified date his criminal case was sent to court. 15. On 19 August 2011 the Tavush Regional Court decided to set the case down for trial, finding that the “detention was to remain unchanged”. 16. On 24 August 2011 the Criminal Court of Appeal examined an appeal lodged by the third applicant against the detention order of 27 July 2011 and decided to dismiss it, finding, inter alia, that the offence with which he was charged carried a sentence of more than one year’s imprisonment, which increased the probability that he would commit a new offence or evade punishment if he remained at large. 17. In the course of the proceedings before their respective trial courts, the applicants submitted that their opposition to military and alternative service was based on their religious beliefs. The alternative service provided for under domestic law was not of a genuinely civilian nature, as it was supervised by the military authorities. The right to conscientious objection was protected by, inter alia, Article 9 of the Convention. The applicants were willing to perform alternative service as long as it was not supervised by the military and was of a genuinely civilian nature. 18. On 19 July 2011 the Kotayk Regional Court found the second applicant guilty as charged and sentenced him to two years and six months in prison. He was taken into custody on the same day. 19. On 27 July 2011 the Syunik Regional Court imposed similar sentences on the first and fourth applicants. 20. On 25 November 2011 the Tavush Regional Court imposed a similar sentence on the third applicant. 21. The applicants lodged appeals against their convictions, arguing that they violated the requirements of Article 9 of the Convention. Their opposition to the alternative service available in Armenia was based on their religious beliefs, as that service was not of a genuinely civilian nature and failed to comply with European standards. It was organised and supervised by the military authorities (section 14 of the Alternative Service Act (see paragraph 28 below)) and was equivalent to non-armed military service, whereas their conscience did not allow them to perform any service supervised by the military authorities. Furthermore, section 17(3) of the Act authorised a military authority to order the transfer of an alternative labour serviceman to another institution, while certain aspects of the service were organised in accordance with military rules (section 18(2) of the Act). Alternative labour servicemen were also required to wear a uniform that resembled a military uniform and to follow orders, and were not allowed to leave their place of service without authorisation. The cover of the alternative labour serviceman’s record booklet (այլընտրանքային աշխատանքային ծառայողի գրքույկ) bore the coat of arms and the words “The Armed Forces of Armenia”, and the monthly allowance paid was the same as that of military servicemen. Moreover, alternative service was punitive in nature as it lasted forty-two months and alternative servicemen were required to stay at their place of service around the clock. They reiterated their readiness to perform a genuinely civilian alternative service and argued that, in the absence of alternative service that complied with European standards and was of a truly civilian nature, their sentences did not pursue a pressing social need and were not necessary in a democratic society. 22. On 2 December 2011 the Criminal Court of Appeal upheld the judgments of the Regional Courts in the cases of the first and second applicants. In the first applicant’s case, the Court of Appeal found as follows: “Having examined the arguments of the defence that the alternative labour service in Armenia does not comply with European standards, is of a military nature and is supervised by the military, the Court of Appeal finds that [the State] ... is taking appropriate measures in respect of the obligations assumed before the Council of Europe as regards, in particular, the enactment and continuous improvement of the legislation concerning alternative service. The Court of Appeal finds it necessary to point out that the Alternative Service Act, the [relevant] Government decrees and [other executive orders] are based on the Armenian Constitution and must therefore be applied in the present case with the following considerations. [Citation of sections 2 and 3(1) of the Act (see paragraph 28 below)] It follows from the above-mentioned provisions that [the State] has made a clear distinction between alternative military service and alternative labour service, and has guaranteed by law the civilian nature of the latter. [Citation of sections 17 and 18(3) of the Act (see paragraph 28 below)] Based on an analysis of the above-mentioned provisions, the Court of Appeal finds it necessary to point out that the fact that the head of the institution [where alternative service is performed] notifies [the local military commissariat] regarding the alternative labour service to be performed by the serviceman, the fact that the serviceman can be transferred to another institution or place and the fact that alternative labour servicemen are discharged from service to the reserve and are registered in the reserve in accordance with a procedure prescribed by law, are not sufficient to conclude that the alternative labour service in Armenia is of a military nature, since ... the type, procedures and conditions of such labour are determined by the heads of the relevant institutions without any interference by the military authorities or their representatives. Furthermore, it is the head of [the relevant] institution who is responsible for the organisation and implementation of the alternative labour service and not the subdivisions of the Armed Forces of Armenia. The argument put forward by the defence that the alternative labour service is supervised by a public authority in the field of defence authorised by the Government of Armenia similarly does not suggest that there is no alternative labour service in Armenia. It must be noted that in reality, servicemen perform the labour service outside the Armed Forces of Armenia and it does not contain elements of military service. The Court of Appeal also finds it necessary to note that an analysis of the Alternative Service Act shows that the specifics of the legal status of alternative labour servicemen are set out in the said Act and the labour legislation of Armenia and they are subjects ... of labour rather than military relations. The preceding conclusion is evidenced also by a number of other provisions of the Act, in particular, the fact that alternative labour servicemen are subordinate only to the heads of the relevant civilian institutions, are obliged to follow only their orders and instructions, and must abide by the internal disciplinary rules of such institutions, while questions relating to the social security of servicemen and their family members are regulated by the legislation on State pensions rather than military laws (sections 19 and 20). It must be noted that Government Decree no. 940-N of 25 June 2004 established the list of institutions where alternative service is performed and the form and the manner of wearing the alternative serviceman’s uniform. Paragraph 2(b) of the Decree stipulates that ‘alternative labour servicemen perform their service in the institutions under the Ministry of Health and the Ministry of Labour and Social Affairs’. Pursuant to [Annex 1] to the Decree, ‘the tasks performed by alternative labour servicemen in the said bodies are those of an orderly’. The Government have entrusted the ministers of the bodies in question, as well as the Minister of Defence, with certain responsibilities, such as the provision of clothing, food and financial means to servicemen and other organisational work (paragraph 3 of the Decree). The fact that the Minister of Defence is also involved in the organisation of the alternative service does not suggest that the labour service transforms into military service, since, firstly, the Minister of Defence and certain subdivisions of the Armed Forces are called upon to participate in the organisation of the alternative military service. As regards the fact that the military authorities carry out supervision of labour servicemen together with the heads of the relevant institutions, the Court of Appeal considers that this still does not change the nature of the service performed. Moreover, as already noted above, the type, procedures and conditions of the civilian labour are determined and may be changed only by the head of the relevant institution. ... It must be noted that performing the tasks of an orderly at the relevant medical institutions of Armenia is not only not demeaning, but on the contrary is humanitarian, serves the interests of society and is aimed at preservation of human health and life. The argument put forward by the defence that the alternative labour service is punitive in nature is also unsubstantiated. ... In the light of the above, the Court of Appeal, based on the concrete facts of the case, namely that [the first applicant] has categorically refused to be conscripted to perform alternative labour service, concludes that he has been found criminally liable and sentenced in a justified and fair manner for such actions, and this fact does not contradict ... the case-law of the European Court regarding Article 9 of the Convention.” In the second applicant’s case, the Court of Appeal found that his conviction had been lawful, well-founded and reasoned. 23. On 9 December 2011 and 6 March 2012 the Criminal Court of Appeal adopted judgments in the cases of the third and fourth applicants similar to its judgment in the case of the first applicant. 24. The applicants lodged appeals on points of law, raising the same arguments as in their appeals. 25. On 7, 8 and 17 February and 7 May 2012 the Court of Cassation declared the applicants’ appeals inadmissible for lack of merit. 26. On 8 and 9 October 2013 the applicants were released from prison following a general amnesty, after having served between twenty-six and twenty-seven months of their sentences. | 1 |
test | 001-144939 | ENG | SVN | COMMITTEE | 2,014 | CASE OF KASTELIC v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Ann Power-Forde;Helena Jäderblom | 4. The applicant was born in 1962 and lives in Ljubljana. 5. 6. On 2 September 2009 the applicant stopped her car on the road in front of a school to let her children get out of the car. At that time, during a regular control, police officer S. found that the applicant had failed to use the seat-belt. The next day, the applicant allegedly approached S. and started insulting her. S. asked the applicant to follow her to the police station but the applicant refused to do so. Then S. requested the applicant to present her identity card which the applicant also refused to do. On the same day, S. issued a penalty notice against the applicant for not using the seat-belt, indecent behaviour, failure to comply with a public official’s lawful order and failure to submit identity papers. The fine amounted to 991.12 euros (EUR). 7. On 22 October 2009 the applicant filed a request for judicial review in which she submitted that on 3 September 2009 she was at home and she was not the person that S. dealt with. 8. On 15 September 2010 the Ljubljana Local Court heard S. According to the applicant, she was not informed of the hearing. 9. On 16 September 2010 the Local Court rejected the request for judicial review on the basis of S.’s statement. Moreover, it held that the applicant had failed to submit any evidence in support of her application. 10. On 11 October 2010 the applicant lodged a constitutional appeal challenging the Local Court’s findings of fact. Moreover, she complained that she had not been heard. 11. On 2 November 2010 the Constitutional Court rejected the applicant’s constitutional appeal as inadmissible. | 1 |
test | 001-181278 | ENG | MLT | COMMITTEE | 2,018 | CASE OF VELLA v. MALTA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+P1-1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Carlo Ranzoni | 5. The applicant was born in 1932 and lives in Siġġiewi. 6. The applicant is the owner of 14 Kirkop Square, Kirkop, a twostorey tenement with a surface area of around 175 sq.m. (hereinafter “the property”). In 1975, 1979, and 1987, following the death of their father, mother and uncle respectively, the applicant and her three brothers inherited an estate which included the property. By a deed of partition of 11 November 1998 the property was assigned to the applicant and she became its sole owner. 7. The property was requisitioned in 1955 by means of a requisition order. The premises were then allocated to the San Leonard Band Club in Kirkop (hereinafter “the band club”). The owners of the property never recognised the tenant or accepted any rent from the club. According to a judgment of 1 February 1958 of the Civil Court (First Hall) in its ordinary jurisdiction, the owners were entitled to do so because the tenement had not been leased as a dwelling, and thus greater risks were involved. 8. In the years that followed rent was paid to the owners by the competent authority (then the Director of Social Housing, today the Housing Authority). The annual rent payable amounted to 30 Maltese Lira (MTL – approximately 70 euros (EUR)), less than EUR 6 per month. According to an architect’s valuation from 2007 submitted by the applicant, the rental value of the tenement at the time was MTL 750 (approximately EUR 1,747) per month. The Government challenged this estimate, as the valuation had contained no explanation as to the basis for the calculations, or whether the property was considered residential or commercial, or vacant or occupied. They relied on a valuation in an architect’s report concerning a property (3 Kirkop Square) requisitioned in 1955 for the purposes of the band club – which stated that the rental value in 2015 was EUR 12,250 per year, which meant EUR 1,021 per month. The Government did not refer to the different address, arguing as though the valuation referred to the property at issue in the present case. 9. Over the years the band club carried out extensive structural alterations, without obtaining the consent of the owners or the relevant permits from the competent authorities. According to an architect’s report, there had been a total change and the alteration effected had effaced what had once been the traditional layout of important buildings in old Maltese towns. According to the applicant, this deprived her of the valuable quality and historical and architectural importance of the property, thus devaluing it. The Government argued that the applicant had not availed herself of any ordinary remedy in this regard and had thus failed to substantiate the loss in value. Moreover, in their view the property was in a good state of repair and the alterations had increased its value. 10. According to the applicant, the band club also repeatedly breached the tenancy agreement which it had signed, by manufacturing fireworks on the premises and conducting commercial activities (such as running a bar and letting the premises out as a wedding venue despite not having the requisite authorisation). The Government submitted that these were unsubstantiated allegations, which had not been proved before the domestic courts. 11. As from 2008, in the light of constitutional proceedings (see below), the band club started depositing the annual rent in court. 12. The applicant and her brothers also owned a property (18 St. John’s Alley, Kirkop) adjacent to the tenement above, which was requisitioned in 1986 and also assigned to the band club. 13. In 1987 the owners of the tenement instituted civil proceedings before the Civil Court (First Hall) in its ordinary jurisdiction against the Housing Secretary and the band club. They requested that the requisition order of 30 December 1986 be declared null and void as being contrary to the 1949 Housing Act, and sought to regain possession of the tenement. They also requested compensation for the damage allegedly sustained. 14. In a judgment of 9 October 1991 the Civil Court (First Hall) in its ordinary jurisdiction rejected the plaintiffs’ claim. The owners appealed against that decision. 15. In a judgment of 30 December 1993 the Court of Appeal declared the requisition order null and void and ordered that the appellants be given possession of the premises within six months. It held that the requisition for the purposes of assigning the property to the band club could not be considered to be in the public interest. It sent the case back to the Civil Court (First Hall) in its ordinary jurisdiction for it to award the appellants compensation. 16. In a judgment of 31 May 2005 the Court of Appeal rejected a request for a new trial submitted by the band club. 17. In a judgment of 16 October 2006 the Civil Court (First Hall) in its ordinary jurisdiction found the Housing Secretary and the band club liable for the damage suffered by the owners in connection with the structural alterations to the property. This judgment was upheld by the Court of Appeal on 27 February 2009. 18. By a judgment of 6 May 2009 the Civil Court (First Hall) in its ordinary jurisdiction awarded the owners EUR 72,000 in damages, covering EUR 16,000 for missing objects, EUR 40,000 to rectify the structural changes made and EUR 16,000 for the loss of use of the property for twenty years. This judgment was upheld by the Court of Appeal on 2 October 2012. 19. In 2007 the applicant instituted constitutional redress proceedings in relation to the property requisitioned in 1955, asking the court to declare that, as a result of the requisition order and the continued occupation of the premises, she had suffered a breach of her rights under Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. She asked the court to award her compensation for the taking of possession of the property and for the violations suffered, and to order any other measure capable of preventing the continuation of the violation, including the release of the property. 20. The defendants, the Director of Social Accommodation, the Attorney General and the band club, argued that no such violations had occurred. 21. By a judgment of 11 October 2011 the Civil Court (First Hall) in its constitutional jurisdiction upheld the applicant’s claims. It considered that the requisition order had been issued for the property to be enjoyed by a private entity and therefore the measure had not been in the public interest. In this connection, it referred to a judgment of 30 December 1993 by the Court of Appeal concerning what it considered to be the same property (see above). Moreover, the measure had not been proportionate. The rent had been derisory, causing the applicant to suffer a disproportionate and excessive burden. She had therefore suffered a violation of Article 1 of Protocol No. 1. According to the court, the applicant had also suffered a violation of Article 14, as only her property had been requisitioned for the use of the band club. In determining the amount of compensation, the court did not take into account the fact that the applicant or her ancestors had received rent, given that the amount was derisory. Bearing in mind the values established by the applicant’s expert as to the rental value and sale value of the property, which was MTL 180,000 (approximately EUR 420,000) (pg.12 of the judgment), as well as the length of time the requisition was and remained in place, the court awarded the applicant EUR 60,000 in compensation (kumpens) for the requisition of the premises and the violations found, noting it was not awarding civil damages (danni ċivili) in this context. Three quarters of the amount was to be paid by the Director of Social Housing and one quarter by the band club. It further ordered the band club to vacate the premises within three months of the date of judgment and to return the premises to the applicant. 22. The band club appealed, arguing that it could not be held responsible for breaches of human rights and that, in any event, the measure had been in the public interest. It further contested the order to vacate the property. The Attorney General and the Director of Social Accommodation also appealed, in particular in relation to the findings of a lack of public interest, a violation of Article 14 and the redress awarded. The applicant crossappealed, arguing that the compensation awarded was too low and did not reflect the losses she had incurred over the years. 23. By a judgment of 25 May 2012 the Constitutional Court upheld the first-instance judgment in part. It reiterated the finding of a violation of the applicant’s rights under Article 1 of Protocol No. 1 only in so far as the requisition had been disproportionate. It found, however, that it had been in the public interest – the court considered that jurisprudence had shifted since the time of the judgment of 30 December 1993 of the Court of Appeal on which the first-instance court had based its assessment. In the present case the requisition had served a social and cultural purpose for the generality of citizens and could not be said to have served solely private interests. 24. It further found that there had been no violation of Article 14. 25. As to the redress, the Constitutional Court revoked the order for the club to vacate the premises. Considering that the violation of Article 1 of Protocol No. 1 was a consequence of the lack of a fair balance between the interests of the landlord and those of the tenant, and given that the validity of the lease was not at issue in the present case, it did not seem appropriate for it to evict the tenant; it sufficed that that unfair balance be redressed. 26. The Constitutional Court confirmed the amount of compensation awarded by the first-instance court, including the way in which it had to be shared. It considered that the band club had benefited from the situation and had never attempted to fix it, despite the fact that it had not been recognised as a tenant. In relation to the amount of compensation, it considered that the disproportionality of the measure had not persisted since the start of the requisition in 1955, but had started to be so only after the 1980s. Furthermore, the applicant had received the rent paid by the department and had only instituted constitutional proceedings in 2007 (while never contesting the validity of the requisition), thus it was legitimate and in line with local case-law to reduce her compensation. It also held that the property had been taken in the public interest and therefore the compensation needed not reflect market values. It followed that the compensation had to be reduced, however, given that the property was not to be vacated, it was appropriate to retain the amount awarded by the firstinstance court. Lastly, the court held that the claim for damages for the depreciation of the property as a result of structural works did not fall within the ambit of a constitutional complaint, and it was thus not its place to award such damages. 27. The Constitutional Court ordered the applicant to pay the costs of the cross-appeal and half the judicial costs of the proceedings before the two levels of jurisdiction. | 1 |
test | 001-152425 | ENG | MDA | CHAMBER | 2,015 | CASE OF PROMO LEX AND OTHERS v. THE REPUBLIC OF MOLDOVA | 3 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 13+11 - Right to an effective remedy (Article 13 - Effective remedy) (Article 11 - Freedom of assembly and association;Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. On 29 January 2009 the police arrested a person who was protesting peacefully in front of the Prosecutor General’s Office. 6. As a reaction to that event, the applicant organisations decided to hold a demonstration in front of the Prosecutor General’s Office, followed by a march to the Ministry of Internal Affairs and a demonstration in front of the latter. 7. On 2 February 2009 the first and the second applicants lodged a notification with the municipal authorities in which they stated their intention to conduct the above event, which they described as a spontaneous reaction to the events of 29 January 2009. They relied on Section 12(1) of the Assemblies Act (see paragraph 11 below). 8. On 3 February 2009 the first and the second applicants organised a protest demonstration in front of the Prosecutor General’s Office. From the video submitted by the parties, it appears that approximately twenty individuals took part in the demonstration. The third applicant was among the participants. Several minutes after the beginning of the demonstration the protesters were attacked by six men wearing masks who started to physically assault them and to spray tear gas and paint over them. As a result of the attack the third applicant sustained numerous injuries to his head and limbs and needed medical treatment. The protesters defended themselves and managed to chase away the attackers. They also managed to immobilise two of the attackers. One of the attackers admitted to having been paid 1,000 Moldovan lei (approximately 60 euros (EUR)) by an unknown person for his participation in the attack. 9. The gathering was observed from the very beginning by four uniformed police officers who were in a patrol car parked close to the place of the event. Also, the event was filmed by approximately six people in plain clothes, who ‒ according to the applicants ‒ were police officers. The Government denied that those filming the event were police officers. When the clash between the protesters and the attackers began, no police officer intervened. The protesters called the police and requested assistance but to no avail. A police patrol appeared only one hour and a half later and took the two immobilised attackers into custody. 10. The organisers of the demonstration lodged a criminal complaint with the Prosecutor General’s Office and complained inter alia about the failure of the police to intervene promptly. A criminal investigation was initiated and all six attackers identified. Only two of them were eventually given suspended sentences of four years for violation of the freedom of assembly of others and hooliganism. No action was taken in respect of the applicant’s complaint about the inaction of the police. | 1 |
test | 001-177341 | ENG | UKR | COMMITTEE | 2,017 | CASE OF VOSKOBOYNIKOV v. UKRAINE | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1940 and lives in Odesa. 6. At the time of the events the applicant was the director general of a joint venture V. (“company V.”), which had its office in the premises belonging to a joint stock company Y. (“company Y.”). 7. In March 2001 the owner of company Y. changed. The new management questioned the legality of the use of its premises by company V. More specifically, they challenged the lease contract of 12 January 1999 in respect of those premises, which had been signed by the applicant, on the one side, and N., the chairman of the board of directors of company Y. at the time, on the other side. Under that contract, company V. could use the office space in question from 12 January 1999 to 12 January 2020 without any payment, but in exchange for certain services for company Y. 8. Starting from April 2001, company Y. no longer allowed access to its premises to company V. As a result, the applicant transformed his flat in a temporary office of company V. 9. In June 2001 company V. brought commercial proceedings against company Y. seeking compliance with the lease contract. Company Y., in turn, lodged a counter-claim seeking invalidation of that contract. By a final decision of the Supreme Court of 25 September 2003, the national courts rejected the claim of company V. and discontinued the proceedings as regards company Y.’s counter-claim. It was concluded that “there [was] no subject matter of the dispute”, given that the impugned contract failed to stipulate basic terms inherent in a lease contract and could not therefore be regarded as a lease contract. 10. On 3 October 2001 a criminal case was opened in respect of suspected forgery of the lease contract of 12 January 1999, without being targeted against any particular persons. 11. On 8 October 2001 the Odesa Prymorskyy District Prosecutor’s Office (“the Prymorskyy Prosecutor’s Office”) issued a warrant for seizure of fifteen documents relevant for the investigation, such as the original of the lease contract itself, related correspondence and several statements of acceptance of the services indicated in the contract (see paragraph 7 above). The seizure was to be carried out in company V.’s office. 12. On 11 October 2001 the seizure took place in the applicant’s flat, in the presence of his wife. It appears that the applicant was not present. Eleven of the fifteen documents listed in the warrant were seized. The seizure report did not contain any information as to whether it had been handed to any person occupying the premises. The applicant did not specify in the domestic proceedings, or in the present proceedings, how the seizure of the documents had taken place. 13. On 15 October 2001 the seizure warrant of 8 October 2001 was served on the applicant. 14. On 22 October 2001 the investigator decided that a forensic expert examination of the signatures on the contract of 12 January 1999 was required in order to establish their real date. 15. On 7 November 2001 the Odesa Prymorskyy District Court (“the Prymorskyy Court”) ordered a search of the applicant’s flat, which was also company V.’s office, with a view to collecting samples of his handwriting and signatures. As stated in the court’s ruling, “notebooks, correspondence and other personal records with [the applicant’s] handwriting” were required for the above-mentioned expert evaluation. That decision was not amenable to appeal. 16. On the following day the search took place in the applicant’s flat in his presence and resulted in a seizure of eleven documents. The applicant did not provide any description, be it in the domestic proceedings or in the present proceedings, as to how the search had been carried out. 17. On 24 December 2001 the investigator ordered a seizure of company V.’s constituent documents from the company’s office. It appears that the seizure was carried out on the same day in the applicant’s flat. 18. On 9 January 2002 the above seizure warrant was served on the applicant. 19. On 6 May 2002 company V. founders’ meeting decided to suspend the applicant from the exercise of his duties as its director general pending the ongoing criminal proceedings. 20. On 20 August 2002 the prosecutor discontinued the proceedings for the absence of unequivocal evidence of a criminal offence. Although a forensic expert examination had established that the signatures on the impugned contract had been antedated (namely, it was established that they had been made no earlier than in February 2001), the official approval of the technical methods used by the expert was previewed only for the autumn of 2002. 21. On 1 September 2002 the applicant resumed his duties in company V. 22. On 28 August 2002 the applicant brought proceedings against the Prymorskyy Prosecutor’s Office claiming compensation in respect of non-pecuniary damage allegedly caused by its unlawful actions. The applicant based his lawsuit on the fact that the criminal proceedings had been terminated, without raising any specific complaints about the search and seizures. He contended that the institution of the criminal proceedings had been arbitrary, which had led, inter alia, to the unlawful search of his flat and the seizure of documents. 23. On 9 December 2002 the Prymorskyy Court rejected the applicant’s claim as unfounded. The case file does not contain a copy of that decision. It appears that the court’s conclusion was that the applicant had not suffered any non-pecuniary damage. 24. The applicant appealed. He argued, in particular, that the impugned measures had been devoid of any legitimate purpose given the impossibility at the time to carry out the forensic handwriting examination ordered by the investigator. He further submitted that, in ordering the seizure of documents, no differentiation had been made between the company’s premises and his home. The applicant maintained that the first-instance court had left those matters without consideration. 25. On 11 September 2003 the Odesa Regional Court of Appeal rejected the applicant’s appeal. It held, in particular, that the company’s office had de facto been located in the applicant’s flat. As regards his complaint about the court’ 26. On 3 February 2006 the Supreme Court upheld the lower courts’ decisions. | 1 |
test | 001-162219 | ENG | DEU | CHAMBER | 2,016 | CASE OF BUCHLEITHER v. GERMANY | 3 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev | 5. The applicant was born in 1965 and lives in Rastatt. 6. He has a daughter, H., born on 29 June 2003. He and the child’s mother, who were not married, separated shortly after the birth. The child lives with her mother, who has sole parental authority. 7. Since the end of 2003, the parents have argued about contact. In April 2004, the applicant lodged his first request for contact with the Neustadt/Weinstraβe Family Court. During a hearing in June 2004 the parents agreed to him having supervised contact, which took place until October 2004. On 8 December 2004 the parents reached a further agreement for supervised contact, which was approved by the Family Court. 8. On 21 February 2005 the applicant requested that the supervising Youth Office, which had refused to continue to be involved due to the parties’ behaviour, be replaced by another child protection association. On 11 July 2005 the Family Court granted this request. By a letter of 21 October 2005, the appointed child protection association refused to act upon the Family Court’s instructions because of the mother’s behaviour. 9. On 28 October 2005 the applicant requested the Family Court to impose a coercive fine on the mother in order to enforce contact rights. On 17 May 2006 the parents agreed on a court-approved contact arrangement. On 18 September 2006 the Family Court, upon the applicant’s request, appointed an access facilitator (Umgangspfleger). The order was subject to a time-limit expiring on 31 December 2006. Subsequently, the contactarrangement was implemented in a more or less regular way. 10. On 8 May 2007 the applicant asked the court to extend contact, reappoint a custodian ad litem (Verfahrenspfleger) and impose a coercive fine on the mother. In reply, the mother requested that contact be suspended for two years. On 22 December 2008, after having again heard an expert, the Family Court suspended contact until 31 December 2009. The applicant’s constitutional complaint (no. 2084/09) was to no avail. 11. On 22 January 2010 the applicant requested an extension of contact following the end of the suspension period. After hearing the child in person, on 12 April 2010 the Family Court granted the applicant contact on a fortnightly basis. At the same time it gave specific directions about the contact and set out sanctions to be applied if the parents did not comply with the order. Contact did not take place. 12. On 2 September 2010, after having heard the child again, the Family Court, at the mother’s request, suspended the applicant’s contact until the conclusion of the main proceedings and rejected his requests for a coercive fine. 13. On 15 April 2011 the Family Court heard both parents, the child and the child’s custodian ad litem. Relying on the opinion of a psychiatrist, Dr B., submitted both in writing and explained orally, it granted the applicant contact of two hours every fortnight. It appointed a guardian, who was given specific directions as to how the child should be prepared for contact and how the meetings should be organised. 14. The mother appealed against this decision. The applicant pursued his request for contact and furthermore requested that the Zweibrücken Court of Appeal order the mother to supply regular information on the child’s development. 15. The Court of Appeal obtained further written submissions from Dr B., who, with regard to the development, was now of the opinion that a suspension of the applicant’s contact was, at the moment, the less damaging approach and therefore in the child’s best interest. Contact with the applicant as such was not found to be damaging, but the circumstances of the conflict rendered a different solution at the moment impossible. As regards the parents’ conflict, the expert pointed out that the applicant had agreed on mediation, but the mother refused such a procedure. He declined any possibility for the applicant to positively and actively arrange any contact at the moment. In her written submission to the Court of Appeal, the child’s guardian expressed her view according to which, to prevent longtime damages of the child, a minimum contact with the applicant should be guaranteed in any event by allowing him to send letters and presents to the child. 16. On 19 October 2012 the Court of Appeal heard from the parents, the child’s guardian, the child and Dr B., it rejected the applicant’s request and suspended all contact between him and his daughter indefinitely, pursuant to Articles 1696 and 1684 § 4 of the Civil Code (see paragraphs 23 and 24 below). 17. The Court of Appeal observed at the outset that the court-approved contact agreement of 17 May 2006 was still valid. It considered, however, that contact had to be permanently suspended because ordering contact would affect the child’s welfare. The court noted that the child had not had any contact with her father for four years, and that he had become a stranger to her. This had been confirmed, in particular, by the courtappointed expert. When heard in court, the child had clearly stated that she did not want to see her father. She only had limited, bad memories of him. The child, who appeared to have developed properly in relation to her age, had given the impression that she knew what was at stake and what she wanted. In spite of her young age, she had clearly and firmly expressed the desire to have her own wishes respected, suggesting that she would not accept being forced into doing something she did not want. The guardian submitted that he had not succeeded in breaking the child’s aversion to her father. According to him, the child had cried and left the room when he had started talking about her father. 18. The Court of Appeal considered that the child’s attitude had been influenced by the loyalty she felt towards her mother, who continuously talked negatively about the father. The child felt obliged to feel the same way as her mother. She longed for the dispute between her parents to come to an end so that she would no longer be exposed to a conflict of loyalties. She saw rejecting her father as the only way to preserve at least her mother’s love. Relying on the expert’s findings, the Court of Appeal observed that the child was mature enough to make a conscious decision and be aware of its consequences. She found herself in a psychological dilemma caused by the communication troubles between her parents, without yet having developed post-traumatic stress disorder. On the one hand, the loss of contact with a parent generally led to a disturbance of psychological development which affected a child’s welfare, but on the other, forced contact in the context of a continuing dispute between parents could also seriously affect the child. 19. The Court of Appeal noted that the expert, in his opinion submitted to the Family Court, had explained that contact with the father did not in itself jeopardise the child’s welfare. However, the expert considered it necessary to prepare the parents by improving their communication before reinstating contact. The Family Court’s decision had failed to take this “prerequisite” into account. The parents had not undertaken any steps in this direction. When heard in the Court of Appeal on 6 September 2012, the expert had clarified that if the parents did not change their way of communicating, which would necessitate at least some form of professional help such as mediation, it would cause more harm to attempt to reinstate contact than to exclude it altogether. 20. The Court of Appeal continued: “Against the background of the parents’ previous conduct both in and outside the courtroom, the [Court of Appeal’s] chamber rules out the possibility that the parents will be able successfully to have recourse to mediation in the foreseeable future. As a mandatory result, the father cannot be granted access to H. at present (derzeit) and the only available option is to exclude [him] from contact. It is not possible to solve the child’s dilemma by specifying the arrangements for contact ... or by appointing a custodian. It is up to the mother to overcome her aversion to the father, and up to the father to learn that contact can only be reinstated through patience, restraint and understanding of both the mother’s and child’s feelings. It is furthermore not ruled out that the child, with advancing age and maturity, will be able to detach herself from her parents’ dispute and seek contact with her father herself. The present decision does not exclude these options.” 21. By a judgment given on 6 February 2013 (no. 1 BvR 4/13), the Federal Constitutional Court refused to entertain a constitutional complaint lodged by the applicant regarding the decisions taken in the main proceedings, without providing reasons. 22. After the applicant lodged his application with the Court and the application had been communicated to the Government, the family case file was sent to the Ministry of Justice and then back to the Family Court. On 18 July 2014, after its return from the Ministry, the case file was presented to a judge, who ruled: “1. Seen. Nothing to be done. 2. To be stored” (1. Gesehen. Nichts zu veranlassen. 2. Weglegen”). | 0 |
test | 001-145564 | ENG | BGR | CHAMBER | 2,014 | CASE OF TSVETELIN PETKOV v. BULGARIA | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 5. The applicant was born in 1974 and lives in Sofia. 6. On 15 October 1993 the applicant got married. At the time of the marriage, the applicant’s wife had an almost three-year old son, who had been born on 20 September 1990 and whose father had been registered as “unknown”. On 21 September 1993 the applicant was registered as having recognised paternity in respect of that child. 7. The spouses apparently stopped living together about two years after their marriage and divorced in 1997. 8. In 1999 the applicant brought a claim in court to declare his recognition of paternity null and void. In particular, he asserted that the declaration, with which the child had been recognised and which had been enclosed in the case file, bore a signature that was not his. The Sofia City Court examined his case and found that the legal requirements for recognition of the child had not been met. More specifically, the applicant had not personally expressed his will to recognise the child before the State agent authorised to receive such declarations; in addition, it had been established on the basis of an expert report during the proceedings that the signature on the documents with which the child had been recognised in 1993 was not that of the applicant. The court declared the recognition of the child by the applicant null and void in a final decision of June 2001, which entered into force the following month. 9. In March 2002 the applicant’s former wife brought a claim on behalf of her child to establish the applicant’s paternity. She asked the court to order gynecological and blood tests in the context of the proceedings. She indicated in the claim the applicant’s “permanent address” as the address where he could be reached. 10. The applicant was not found at his “permanent address” when the authorities visited it once in April 2002. According to a note by the summons officer, a neighbour had indicated that the applicant no longer lived there. The authorities proceeded by summoning the applicant with a publication in the State Gazette in July 2002. As he did not appear in court, a lawyer was appointed ex officio to represent him. The lawyer attended the court hearing before the Sofia City Court which took place on 2 December 2002; it appears that she had no contact with the applicant at any point in time, either before or after the hearing. 11. In a judgment of 16 December 2002 the Sofia City Court allowed the claim, declaring the applicant the biological father of the child. The court also held that the child was to carry the applicant’s names (as a patronymic and family name) and determined a monthly amount of child maintenance which the applicant had to pay. The court remained silent on the request for blood tests made by the applicant’s former wife. Instead, it based its findings on the date of the child’s birth and on testimony submitted by the applicant’s former wife’s cousin and aunt. The latter stated that, at the time of the child’s conception, the mother had been in an intimate relationship only with him. The court held that this was sufficient to conclude that the applicant was the child’s father. The applicant was also ordered to pay about 50 euros (EUR) in legal fees to each of the ex officio lawyers appointed by the court to represent him and the child respectively. 12. On 19 December 2002 the Sofia City Court prepared two notifications of the judgment, one for the attention of the applicant and another for the attention of the child. The notification to the child was handed in person to the child’s lawyer on 8 January 2003. As for the notification to the applicant, on 13 January 2003 a court officer indicated on the court papers for notification that according to information from the applicant’s neighbours he no longer lived at his “permanent address” and no new address was known for him. On 16 January 2003 the court ordered that the notification be sent to the applicant’s ex officio lawyer; the latter was personally served a notice of the judgment on 18 January 2003. The notice indicated that an appeal against the judgment could be filed within 14 days from the moment of notification. The applicant’s ex officio lawyer did not appeal against the judgment and it became final. 13. The applicant found out about the judgment on 26 April 2004 when he was informed, at his “permanent address”, of his obligation to pay child maintenance in accordance with a writ of execution following the 2002 Sofia City Court judgment. A later certificate, issued on 25 May 2011 by the bailiff service and enclosed in the case file, indicated that no payments had been received in connection with the writ. 14. On 26 July 2004, the applicant filed a request for reopening, relying on Article 231 (e) and Article 231 (ж) of the Code of Civil Procedure 1952 in force at the time (see paragraph 28 below). He claimed in particular that he had been deprived of the opportunity personally to participate in the court proceedings in which he had been declared the father of the child. 15. The Supreme Court of Cassation (SCC) examined his request for reopening. It observed that the applicant had only learned about the Sofia City Court 2002 decision on 26 April 2004. It found his request for reopening procedurally admissible as lodged within the statutory time-limit. Nevertheless, the SCC rejected the request on the ground that the procedure for summoning him to the hearing had been observed, namely, attempted service at the applicant’s last known address and publication in the State Gazette. The Court also noted that a legal representative had been appointed ex officio and had represented the applicant during the proceedings. The court concluded, in a final judgment of 11 November 2005, that the applicant’s right to take part in those proceedings and to exercise his defence had not been infringed. | 1 |
test | 001-146704 | ENG | RUS | CHAMBER | 2,014 | CASE OF MISAN v. RUSSIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1973 and lived in Vladivostok. She died on 16 April 2007. 6. On an unspecified date the military prosecutor’s office had opened criminal proceedings against the applicant’s father K., a naval officer, on suspicion of document forgery. 7. On 14 March 2003 the acting prosecutor of the Pacific Fleet issued a warrant to search the applicant’s flat. The parties did not submit a copy of the warrant. It is apparent from the search record of 14 March 2003 that the purpose of the search was “to find and seize objects and documents, including draft calculations in respect of the salary due to [K.] and other naval officers of the ship Argun, and other data storage media exposing [K.’s] involvement in criminal activity”. 8. The police came to the applicant’s flat on the same evening, at about 9.30 p.m. As the applicant refused to let them in, the police broke down the door and suggested that the applicant surrender objects and documents which could be of relevance for the criminal case against her father. The applicant surrendered K.’s seaman’s passport and claimed that she had no other documents or objects belonging to her father. The police searched the flat and seized the applicant’s seaman’s passport, a printer and six floppy disks. The search ended at about 11 p.m. 9. On 18 March 2003 the applicant lodged a complaint before the Frunzenskiy District Court of Vladivostok, claiming that the search had been unlawful. She submitted, in particular, that night searches were unlawful under domestic law. She further submitted that the search had not been justified because the calculations in respect of the salary due to naval officers of the ship Argun had been submitted to the court at an earlier date and could therefore be found in the case file. She also complained that her and her husband’s personal belongings, including their printer and floppy disks and her seaman’s passport, had been seized. 10. On 20 April 2003 the applicant was informed that her complaint would be examined on 21 April 2003 by the Military Court of the Vladivostok Garrison. 11. On 21 April 2003 the Military Court of the Vladivostok Garrison examined the applicant’s complaint. The applicant did not attend the hearing. The court found: “[The applicant’s] signature on the search warrant confirms that she had been notified of it at 9.30 p.m. on 14 March 2003. It is apparent from the search record of 14 March 2003 that a search was carried out in [the applicant’s] flat from 9.30 p.m. to 11 p.m. In the course of the search the following objects were seized: seaman’s passport in the name of K. no. [...], seaman’s passport in the name of K. no. [...], seaman’s passport in the name of [the applicant] no. [...], Canon printer no. EUK04532, its power module no. 981202TT06 and six floppy disks. That investigative measure was carried out in the presence of two attesting witnesses who signed the search record and a note explaining their rights. Before the start of the search [the applicant] wrote a note on the search record stating that her rights, obligations or applicable procedures had not been explained to her. It is apparent from the questioning record of witness [N.] that she participated in the search of [the applicant’s] flat as an attesting witness. Her rights were respected. In view of the above, it follows that the search of [the applicant’s] flat was carried out in accordance with Articles 182 and 183 of the CCrP, without any breaches of law. [The applicant’s] complaint is therefore unsubstantiated and must be rejected.” 12. The applicant appealed. She complained, in particular, that the search had been carried out late at night and that the personal belongings seized from her were of no relevance to the criminal case against her father. The applicant expressed her wish to be present and represented at the appeal hearing. 13. On 23 June 2003 the Military Court of the Vladivostok Garrison informed the applicant that her appeal would be examined by the Military Court of the Pacific Fleet on 7 July 2003. 14. According to the applicant, on 7 July 2003 her counsel telephoned the judge and asked for an adjournment of the appeal hearing because she – the counsel – was ill. The applicant was present during the call. According to the Government, no record of that telephone call was found in the case file. 15. On 7 July 2003 the Military Court of the Pacific Fleet held a hearing in the absence of the applicant and her counsel and upheld the judgment of 21 April 2003. It noted that the applicant had been informed of the date of the hearing but had not attended for unknown reasons. She had not asked for an adjournment. The court further held: “It is apparent from the case-file that the search [of the applicant’s flat] was ordered on 14 March 2003 by the acting prosecutor of the Pacific Fleet at the request of the investigator ... in connection with criminal proceedings against her father [K.]. It is apparent from the search record that during the search [K.’s and the applicant’s] seaman’s passports, a printer and its power module were seized. There is no evidence of any breaches of procedure. [The applicant’s] complaint about the use of force during the search is not supported by any evidence in the case-file. There is no evidence that [the applicant] or members of her family sought medical aid. Nor did she mention the use of force when signing the search record. Domestic law allows the possibility of carrying out investigative measures at night in cases of urgency. Moreover, the search of [the applicant’s] flat continued until after 11 p.m. because she had refused to let the police in. There is no evidence of breaches of law in seizing [the applicant’s] documents and other belongings during the search.” 16. The applicant received a copy of the appeal decision on 16 July 2003. | 1 |
test | 001-161376 | ENG | RUS | CHAMBER | 2,016 | CASE OF VIDISH v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1962 and lives in Shadrinsk. 6. On 20 August 2003 the Shadrinsk Town Court of the Kurgan Region convicted him of murder and sentenced him to ten years’ imprisonment. On 29 October 2003 the Kurgan Regional Court upheld the conviction on appeal. 7. The applicant is HIV-positive and at the material time also suffered from tuberculosis and hepatitis. 8. On 25 December 2008 the applicant was transferred to the LIU OF73/3 medical facility (лечебно-исправительное учреждение) in the Kurgan Region and was detained in the following wards: (a) quarantine ward 24 from 25 to 30 December 2008 and from 18 to 30 June 2009; (b) ward 25 from 30 December 2008 to 28 May 2009 and from 30 June to 21 September 2009; and (c) ward 26 from 21 September to 3 November 2009. 9. According to the applicant, the wards were severely overcrowded. For instance, ward 25 measured approximately 80 square metres, was equipped with fifteen two-tier bunk beds and housed twenty-seven inmates. Passages between the beds, lengthwise, were as narrow as fifty centimetres and were used by four inmates. The wards were poorly lit as the windows were covered with louvre shutters blocking access to natural light. 10. According to the Government, ward 24 measured 61.49 square metres, had sixteen sleeping places and accommodated up to sixteen inmates. Ward 25 measured 67.5 square metres, was equipped with thirteen two-tier bunk beds and housed up to twenty-six inmates. Finally, ward 28 measured 49.4 square metres and accommodated fifteen inmates. The applicant was provided with an individual sleeping place at all times. All wards had access to natural light. 11. In support of their submissions, the Government provided original floor plans and ward population registers containing information about the exact number of inmates in each ward for the whole period the applicant was in the LIU OF-73/3 facility. They also submitted a prosecutor’s report dated 11 October 2010 regarding the conditions there. It indicated, in particular, that windows in all wards were fitted with metal louvre shutters. 12. On 9 February 2009 the medical facility authorities issued an order introducing visiting fees for inmates and their families. The calculation table annexed to the order specified that a fee of 320 Russian roubles (approximately 9 euros) per day per person would be payable, covering maintenance charges, prison staff salaries, the depreciation of visiting room equipment, bed linen and cleaning products. 13. On 14 April 2009 the director of the Federal Service for the Execution of Sentences sent a letter to the heads of Russian penal facilities, reminding them that charging visitors and detainees for family visits was in breach of Article 89 of the Code on the Execution of Sentences (see paragraph 17 below) and that facility administrations must bear the costs of providing rooms for long-term visits. Only additional services are payable by detainees in accordance with the Internal Regulations of Correctional Facilities (see paragraph 20 below). 14. On 22 April 2009 the applicant was authorised to see his two daughters on a long-term family visit. He calculated that a three-day visit from them would cost RUB 1,920, which was far beyond their means. His daughters did visit him, but stayed only one day instead of the expected three, as they did not have enough money on them to stay any longer. 15. On 22 August 2009 the applicant’s daughters visited their father again, this time free of charge. 16. On 29 April 2010 the applicant received a letter from the Court dated 19 March 2010 in the correspondence department of the OF-73/2 correctional facility, to which he had been transferred in February 2010. It was handed over to him in an open envelope and he was told to sign a copy which had been attached to his personal file. | 1 |
test | 001-148291 | ENG | SVN | COMMITTEE | 2,014 | CASE OF PEČENKO v. SLOVENIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Angelika Nußberger;Vincent A. De Gaetano | 5. The applicant was born in 1942 and lives in Kamna Gorica. 6. The applicant served his prison sentence in the closed and semi-open sections of Ljubljana prison. 7. In the period from 7 June 2009 to 31 August 2009 he was held in the closed section: for five days in cell 117, measuring 17.66 square metres (not including a separate 1.68 square metre sanitary facility) shared with three to five other inmates and with 2.66 to 3.99 square metres of personal space and for eighty-one days in cell 7 measuring 16.7 square metres (not including a separate 1.68 square metre sanitary facility). The Government submitted that in cell 7 the number of prisoners varied between three and five and when there were three prisoners therein the applicant had 5 square metres of personal space. 8. In the period between 1 September 2009 and 12 November 2009 he was held in the semi-open section in cell 137, measuring 17.94 square metres (not including a separate 1.75 square metre sanitary facility) shared with two to four other inmates and with 3.2 to 5.4 square metres of personal space and cell 136, measuring 18.44 square metres (not including a separate 1.78 square metre sanitary facility) shared with two to four other inmates and with 3.3 to 5.6 square metres of personal space. 9. As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011. 10. As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86). 11. As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years. 12. As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days. | 1 |
test | 001-177128 | ENG | LTU | ADMISSIBILITY | 2,017 | KUŽMARSKIENĖ v. LITHUANIA | 4 | Inadmissible | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani | 1. The applicant, Ms Jolanta Kužmarskienė, is a Lithuanian national who was born in 1973 and lives in Joniškis. She was represented before the Court by Ms D. Balčiūnienė, a lawyer practising in Joniškis. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 2010 Šiauliai Remand Prison (hereinafter, “the prison”) published a recruitment notice for a psychologist. The applicant applied for the position. 5. On 14 June 2010 the prison’s human resources division sent the applicant for a medical examination at the Central Medical Expert Commission of the Medical Centre of the Ministry of Interior (hereinafter, “the Commission” – see paragraph 23 below). 6. On 7 July 2010 the applicant went for the examination, but after her height was measured the process was terminated and the applicant was told that she was unfit for the position because she was too short. The Commission noted that the applicant’s height was 151 cm and she was informed that she was diagnosed as being physically underdeveloped due to lack of proteins and minerals (sulėtėjusi raida dėl baltymų ir energetinių medžiagų trūkumo). The Commission also stated that domestic regulations provided that women smaller than 155 cm were unfit for work within the security and lawenforcement services (see paragraph 25 below). 7. In July 2010 the applicant wrote to the Minister of Interior and the Minister of Health and complained about the fact that she had been found unfit for service by the Commission. The Ministry of Health replied that the Commission’s decisions could be appealed against in accordance with the rules of administrative procedure (see paragraph 40 below). 8. The applicant also complained to the Parliamentary Ombudsperson, who in November 2010 established that the Commission had performed the medical examination in accordance with the provisions of domestic law (see paragraph 24 below). The Ombudsperson held, however, that the Ministry of Interior and the Ministry of Health had not replied to a question about the specific reason for setting the height requirements and decided that the applicant’s requests had not been fully examined. The Ombudsperson thus suggested that the Ministry of Interior and the Ministry of Health should in the future oblige employees to follow the requirement to provide comprehensive information. 9. The applicant also complained to the Equal Opportunities Ombudsperson, who in November 2010 held that the domestic regulation in question was more favourable to men than women. According to medical experts, men were considered small if their height was between 168 and 171 cm while women were considered small if their height was between 155 and 156 cm. The contested regulation provided that men were unfit for service in the security and law-enforcement bodies if they were smaller than 160 cm while women were considered unfit for such service if they were smaller than 155 cm. The Equal Opportunities Ombudsperson also stated that there was no explanation why officers who did not carry out operational duties were considered unfit for service if they were short. 10. On 31 July 2010 the applicant lodged a complaint with the Vilnius Regional Administrative Court. She asked the court to annul the Commission’s decision that she was unfit for the position and the diagnosis that she was physically underdeveloped. On 1 December 2010 the Vilnius Regional Administrative Court decided that there had been no medical examination of the applicant, except for measuring her height. The court also raised doubts as to whether a domestic regulation which referred merely to height for acceptance into government service, without any additional examination (see paragraph 25 below), was in accordance with the Constitution and the Law on Equal Opportunities and decided to refer the matter to the Supreme Administrative Court. The examination of the applicant’s case was suspended awaiting the decision of the latter court (see paragraph 28 above). 11. On 2 November 2011 the Supreme Administrative Court noted that the Interior Ministry Service Statute provided that a person aiming to be employed by the domestic security and safety services had to be healthy enough to perform such functions (see paragraph 22 below). However, there was no evidence that a person’s height, if not related to other health issues, was a reasonable ground to diagnose such a person as being physically underdeveloped. The court did not question the possibility of setting various requirements (including height) to hold certain positions, but held that the contested provision was contrary to the Interior Ministry Service Statute as it did not differentiate the height requirements according to profession and was not based on any inability to perform certain functions. 12. The proceedings before the Vilnius Regional Administrative Court resumed. On 8 November 2011 the applicant was asked to set out her complaint in a more specific way (patikslinti skundo reikalavimą) and to ask the court to annul the prison’s decision on terminating the employment procedure. On the same day, the prison was asked to provide the court with a document, stating who, when and by what decision terminated the employment procedure. 13. On 22 November 2011 the applicant, following the Vilnius Regional Administrative Court’s proposal, stated her complaint in more specific terms and asked the court to also annul the prison’s decision to terminate the procedure to employ her. On 29 November 2011 the Vilnius Regional Administrative Court set a time-limit for the applicant to remedy shortcomings in her complaint. The court stated that the applicant had complained about the decision to terminate the procedure to employ her; however, the prison administration had indicated that there had been no separate decision on that issue. The court held that in such cases only a final decision by the director of the institution in question could be complained of and that a decision by the Commission was only an intermediate document. The court thus suggested that the applicant again state her complaint more specifically and asked the prison to take a decision on terminating the employment procedure. There is no information that the prison had taken that decision in writing (see paragraph 15 below). 14. The applicant set out her complaint again on 7 December 2011. She asked the court to oblige the prison to take a decision on terminating her employment procedure; to annul that decision; to annul the Commission’s decision that she was unfit for service; and to annul the Commission’s diagnosis that she was physically underdeveloped. 15. On 27 December 2011 the Vilnius Regional Administrative Court decided to terminate the part of the case in which the applicant sought to annul the Commission’s decision and decided to annul instead the prison’s decision on terminating the employment procedure. The court observed that the Commission had taken its decision without any medical advice and thus it had been unlawful and unfounded. The court further referred to the Supreme Administrative Court’s decision of 2 November 2011 (see paragraph 11 above and paragraph 27 below) and held that the regulation that had been found to be contrary to the Interior Ministry Service Statute was not applicable from the date of issuance of the court’s decision, 10 November 2011. The court also referred to a Supreme Administrative Court case where the rules for appealing against decisions by the Commission had been explained (see paragraph 41 below). As a result, the Vilnius Regional Administrative Court held that in the applicant’s case the decision which had affected her the most was that of the prison and not the Commission’s and thus the latter could not be the subject of examination by the court. The court also noted that the prison’s decision to terminate the procedure for the applicant’s employment had not been set down in writing, but decided that the date it had been taken was when the prison had received the Commission’s decision, which was 13 July 2010. The court referred the matter back to the prison so it could examine the applicant’s employment application afresh and send her for a special medical examination. 16. In January 2012 the applicant, the prison and the Commission lodged appeals with the Supreme Administrative Court. 17. The applicant sought to annul both the Commission’s decision and that of the prison to terminate the employment procedure. The applicant disagreed with the Vilnius Regional Administrative Court’s conclusion that the Commission’s decision had not affected her situation. She argued that the Commission’s decision had been the ground for the prison to terminate the employment procedure. She also noted that the prison had not issued a written decision on terminating the employment process and that the procedure to complain about such a decision was unclear. She also stated that she had not asked the court of first instance to refer the matter of her employment back to the prison because by that time the judicial proceedings had taken more than a year and the position at the prison had probably already been taken. 18. The prison argued that the Commission’s decision had been an independent act with legal consequences for the applicant, namely it had prevented her from being a candidate for the position of psychologist. It did not agree that the negative consequences had been caused by its own decision, which had not even been set down in writing. The Commission stated that the applicant’s complaint should have been dismissed as unfounded because it was not clear how an employing institution should act if there was a decision by the Commission that a person was unfit for service and that person thought otherwise. In accordance with the case-law of the Supreme Administrative Court, a person in such a situation would lose the possibility to question the lawfulness of the Commission’s decision. 19. On 21 June 2012 the Supreme Administrative Court amended the Vilnius Regional Administrative Court’s decision and held that the Commission’s decision could not be regarded as an independent document because it had not been an individual administrative act and the Commission was not a public authority. The court also stated that the Commission’s decision had only been an intermediate step in the employment procedure and could not be contested before the domestic courts. Even if it had been held that the Commission’s decision could be a matter for an administrative case, the applicant’s right to continue the employment procedure would not in fact have been protected because the court could not impose an obligation on the institution where the applicant had aimed to be employed on the grounds of the Commission’s allegedly unlawful decision. The court also held that examination of a case by a court was pointless if a person’s rights could not be defended. The decision which the applicant could have challenged was the one by the prison. The court stated, however, that the applicant had submitted contradictory claims (reiškė prieštaringus reikalavimus), that is, on the one hand she had asked that the prison be obliged to take a decision on terminating the employment procedure and, on the other hand, that the prison annul its decision on terminating the procedure. The court also noted that the applicant had not indicated any remedy in defence of her rights before the court of first instance; however, that court had not held that circumstance to be a shortcoming in the claim. In order to defend the applicant’s rights to the maximum, it had applied the provisions of administrative law and had chosen the remedy that had best met the applicant’s requirements. That was why the employment matter had been referred back to the prison. The court held that a decision stating that the applicant’s rights had been breached had no consequences and was not the right way to protect her rights. The court also underlined that the applicant had not wanted to continue the employment procedure and that she had lodged her complaint with the domestic courts without any indication of possible measures of redress. As a decision by a domestic court that merely indicated that someone’s rights had been breached did not lead to any material or legal consequences for that person, such complaints were not subject to examination by the administrative courts. The court therefore decided to terminate the case. 20. Article 29 of the Constitution provides that everyone is equal before the law, courts, and other state institutions and officials. Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions or views. 21. Article 5 § 1 (1) of the Law on Equal Opportunities provides that when implementing equal treatment provisions, an employer, regardless of the person’s age, sexual orientation, disability, racial or ethnic origin, religion or beliefs, must apply the same recruitment criteria and employment conditions when employing or recruiting someone to public service, except in cases provided for by law. Those include restrictions on the grounds of age, a requirement to know the official State language, a prohibition on taking part in political activities, different rights applied on the basis of citizenship and special measures applied in the healthcare, work safety, employment and labour market sphere, which at the same time also aim to create and apply conditions and opportunities guaranteeing and promoting the integration of the disabled into the labour market. 22. At the material time, Article 6 § 1 (4) of the Interior Ministry Service Statute (Vidaus tarnybos statutas) provided that a person aiming to be employed by the domestic security and safety services had to be healthy enough to perform such functions. The health requirements are set by the Minister of Interior and the Minister of Health. 23. Article 10 § 1 of the Prison Department Statute of Service (Tarnybos Kalėjimų departamente prie Lietuvos Respublikos teisingumo ministerijos statutas) provided that people aiming to be employed at the Prison Department had to be citizens of Lithuania, at least 18 years old, with a sufficient knowledge of the Lithuanian language and a sufficient level of education, personal qualities, physical ability and health. Article 10 § 4 provided that candidates’ health had to be examined by the Medical Centre of the Ministry of Interior at the request of the Prison Department. Article 11 § 1 (1) provided that a person could not be accepted for work by the Prison Department or related institutions if he or she was found to be unfit for service by the Commission. Article 11 § 3 provided that appeals against decisions regarding a refusal of employment could be made to a court, in accordance with the Law on Administrative Proceedings. 24. Point 2 of the order of the Minister of Interior of 5 August 2008, No. 1V-299 (Lietuvos Respublikos vidaus reikalų ministro įsakymas „Dėl specializuotosios medicininės ekspertizės organizavimo ir atlikimo tvarkos aprašo patvirtinimo“, hereinafter, “the order”) provided that the Commission was part of the Medical Centre of the Ministry of Interior, performing specialised medical expert examinations. An expert examination is a decision by Commission doctors indicating a health disorder in accordance with the international statistical classification of health disorders and problems. A person under examination is a person who aims to be employed by the domestic security and safety services, an officer, former officer or student who is sent for examination by the Commission. The status of a person being examined by a medical expert, including the carrying out of laboratory and functional analyses, is equivalent to that of a patient and the provisions of the Law on Patients’ Rights and Compensation for Health Damage are applicable. 25. At the material time, Point 17 § 2 of the order of the Minister of Interior and the Minister of Health of 21 October 2003, No. 1V-380/V-618 (Lietuvos Respublikos vidaus reikalų ministro ir Lietuvos Respublikos sveikatos apsaugos ministro įsakymas „Dėl sveikatos būklės reikalavimų asmenims, pretenduojantiems į vidaus tarnybą, pageidaujantiems mokytis vidaus reikalų profesinio mokymo įstaigose, kitose mokymo įstaigose Vidaus reikalų ministerijos siuntimu, bei vidaus tarnybos sistemos pareigūnams sąvado patvirtinimo“) provided that if a lack of proper development had led to a man being shorter than 160 cm or a woman being shorter than 155 cm, then they were unfit for service in the security and law-enforcement bodies. No exceptions to this rule were provided. 26. Point 17 of the order of the Minister of Interior and the Minister of Health of 6 April 2012, No. 1V-291/V-308, now provides that if a man is smaller than 165 cm or a woman smaller than 151 cm because of inadequate development then they are unfit for service in domestic law-enforcement, security or safety bodies. 27. The Supreme Administrative Court has decided that Point 17 § 2 of the 2003 order (see paragraph 25 above) was contrary to the Interior Ministry Service Statute in so far as it did not differentiate height requirements according to profession and was not based on any inability to perform certain functions (Supreme Administrative Court decision of 2 November 2011, no. I-662-11/2011, taken in the applicant’s case – see paragraph 11 above). 28. Article 112 § 1 of the Law on Administrative Proceedings (hereinafter, “the Law”) provided that a civil or specialised court had the right to suspend the examination of a case and address a request to an administrative court to decide whether a normative administrative act (or part of it) that had to be applied in a specific case complied with a law or Government regulation. Article 112 § 2 provided that the civil or specialised court would renew its examination of the case after the administrative court’s decision. 29. At the material time, Article 115 § 1 (2) of the Law provided that one possible decision for the administrative court was to hold that a normative administrative act (or part of it) was contrary to the law or Government regulation and to annul it. 30. In addition, Article 116 § 1 of the Law provided that a normative administrative act (or part of it) became null and void and inapplicable from the date of the official issue of the administrative court’s decision to recognise that act (or part of it) as unlawful. 31. The Supreme Administrative Court has held that public administration bodies have to follow the principle of the rule of law and that ultra vires acts must be declared unlawful (decisions of the Supreme Administrative Court of 25 July 2005, No. I1-2/2006; of 28 November 2008, No. I444-4/2008; and of 11 May 2011, No. I444-14/2011). 32. Article 3 § 1 of the Law provided that administrative courts decided legal disputes in the field of public administration. 33. Article 5 § 1 of the Law provided that any person with an interest in a case had the right to lodge a complaint with a court in order to defend his or her rights or interests. 34. Article 23 § 2 (7) of the Law provided that such a complaint had to set out the applicant’s claims. 35. Article 37 § 2 (1) of the Law provided that complaints had to be refused if they were not subject to examination by a court. 36. Article 101 § 1 of the Law provided that a court had to terminate any case if it was not in its jurisdiction, except for cases that were within the jurisdiction of the civil courts. 37. Article 2 § 1 of the Law on Public Administration provided that public administration was an activity of a public administration body intended to implement laws and other regulations. It comprised the taking of administrative decisions, overseeing the implementation of laws and administrative decisions, the provision of administrative services provided for in laws, the administration of the provision of administrative services and the internal administration of a public administrative body. 38. Article 6 § 2 of the Law on Public Administration provided that normative administrative acts could only be enacted by public administration bodies. 39. Article 2 § 3 of the Law provided that administration bodies were those that performed the functions of public administration. 40. Point 79 of the order (see paragraph 24 above) provided that the Commission’s decisions could be appealed against in court, in accordance with the Law. 41. The Supreme Administrative Court has held that only the final decision of an institution could be examined by an administrative court. Many documents are drawn up in the course of administrative procedure, but they are usually intermediate documents and do not decide any issues related to a person’s material legal rights. An administrative court cannot examine a document if it has no legal consequences. A Commission decision is only an intermediate document that has no legal consequences (decision of the Supreme Administrative Court of 20 June 2011, No. A26169/2011). 42. At the material time, Article 24 § 1 of the Law on Patients’ Rights and Compensation for Health Damage provided that compensation for pecuniary and non-pecuniary damage caused by breaching a patient’s rights was provided in accordance with that law itself and the Civil Code. Article 24 § 2 provided that a patient or other persons who had a right to compensation had to send a claim to the Commission on Damage Caused to Patients’ Rights. Article 24 § 3 provided that the Commission on Damage Caused to Patients’ Rights was a compulsory institution for out-of-court settlements for disputes related to violations of patients’ rights and assessments of the amount of damages. Article 24 § 8 provided that any patient or other person who disagreed with a decision by the Commission on Damage Caused to Patients’ Rights could lodge a court complaint within thirty days of the decision or the date they found out about the decision. 43. The Supreme Court has held that a doctor’s main duty is to provide qualified and diligent health-care services to patients (decisions of the Supreme Court of 14 October 2008, No. 3K-3-478/2008; of 12 February 2010, No. 3K-3-77/2010; and of 12 April 2010, No. 3K3158/2010). 44. Article 15 § 1 (3) of the Law (see paragraph 28 above) provides that administrative courts decide cases concerning damage caused by the unlawful acts of public authorities, as provided for in Article 6.271 of the Civil Code (see paragraph 47 below). 45. Article 88 of the Law provides that an administrative court can take the following decisions in respect of a case: 1) reject the complaint as unfounded; 2) satisfy the claim and annul the contested regulation (or any part thereof), or oblige the relevant administrative entity to end the violation in question or execute any other requirement set by the court; 3) satisfy the claim and oblige the administrative body of a municipality to implement the law, or execute a Government or other regulation; 4) satisfy the claim and settle the dispute in any other manner set by the law; 5) satisfy the claim and award damages for unlawful acts by the public authority (Article 6.271 of the Civil Code). 46. Article 6.248 § 1 of the Civil Code provides that civil liability only arises where a person is at fault and a debtor is presumed to be at fault, except where laws or contracts provide otherwise. 47. Article 6.271 § 1 of the Civil Code provides that damage resulting from unlawful acts of institutions of public authority must be compensated for by the State from the State budget, irrespective of the responsibility of a particular public servant or other employee of public authority institutions. Damage resulting from unlawful actions of municipal authority bodies must be redressed by the municipality from its own budget, irrespective of whether an employee is at fault. Article 6.271 § 2 provides that for the purposes of the Article, the notion “an institution of public authority” means any public-law body (a State or municipal institution, official, public servant or any other employee of those institutions, and so forth), as well as a private person executing the functions of a public authority. Article 6.271 § 3 provides that for the purposes of the Article, the notion “act” means any act (active or passive) by an institution of public authority or its employees, that directly affects people’s rights, liberties and interests (legal acts or individual acts enacted by the institutions of state and municipal authority, administrative acts, physical acts, and so forth, with the exception of court judgments – verdicts in criminal cases, decisions in civil and administrative cases and orders). Article 6.271 § 4 provides that civil liability on the part of the State or a municipality subject to the Article arises when the employees of public authority institutions fail to act in the manner prescribed by law for those institutions and their employees. 48. The Supreme Administrative Court has held that in order for a right to compensation for damage to arise the law does not require that unlawful acts by public institutions are annulled or declared void in accordance with the law (decisions of the Supreme Administrative Court of 30 March 2007, No. A10-332/2007; of 2 November 2009, No. A556-1241/2009; of 28 January 2010, No. A822-207/2010; of 30 November 2010, No. A8221419/2010; and of 16 January 2014, No. A-492-80/2014). 49. The Supreme Administrative Court has held that when considering the issue of compensation for damage, courts have to examine the factual grounds of such damage, irrespective of the presence of a dispute with regard to the lawfulness of such grounds (decision of the Supreme Administrative Court of 16 June 2006, No. A4-1030/2006). 50. The Supreme Administrative Court has held that courts have to fully examine the lawfulness of acts that might have caused someone damage, irrespective of separate court proceedings on the lawfulness of such acts (Supreme Administrative Court decision of 16 June 2006, No. A5561655/2008). | 0 |
test | 001-171490 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KOLOMIYETS AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-166757 | ENG | HRV | ADMISSIBILITY | 2,016 | JURIŠIĆ v. CROATIA | 4 | Inadmissible | Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 1. The applicant, Mr Stipan Jurišić, is a Croatian national who was born in 1962 and lives in Split. He was represented before the Court by Mr J. Franceschi, a lawyer practising in Split. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was a senior military officer in the Croatian Army, holding the rank of brigadier. 5. On 7 June 2006 an investigating judge of the Split County Court (Županijski sud u Splitu) opened a criminal investigation against the applicant and another individual on suspicion of abuse of power and authority related to the unlawful misappropriation of goods. 6. The applicant appealed against the investigating judge’s decision before a three-judge panel of the Split County Court. On 29 August 2006 the panel dismissed his appeal and upheld the investigating judge’s decision on opening an investigation into his alleged abuse of power and authority. 7. On 28 September 2006 the competent military prosecutor indicted the applicant in the Split Military Disciplinary Court (Vojnostegovni sud u Splitu) on the grounds that the opening of a criminal investigation against him suggested that there was a reasonable suspicion that he had committed a criminal offence which could be prosecuted ex officio, which in itself amounted to a disciplinary offence under section 58 of the Military Service Act (see paragraph 18 below). 8. On 13 October 2006 the Split Military Disciplinary Court found the applicant guilty under section 58 of the Military Service Act because there was a reasonable suspicion that he had committed an offence for which criminal proceedings had been instituted and sentenced him to a reduction in rank. 9. On 30 January 2007, on appeal by the military prosecutor, the Higher Military Disciplinary Court (Viši vojnostegovni sud), as the appellate court, upheld the applicant’s disciplinary conviction and dismissed him from military service. 10. After the completion of the criminal investigation by the investigating judge of the Split County Court, on 17 May 2007 the Split Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Splitu) indicted the applicant and another individual in the Split Municipal Court (Općinski sud u Splitu) on charges of abuse of power and authority. 11. On 13 May 2009 the Split Municipal State Attorney’s Office dropped all charges against the applicant owing to a lack of evidence and on the same day the Split Municipal Court dismissed the charges against him. 12. On 16 June 2009, following the dismissal of the charges against him in the criminal proceedings, the applicant sought to reopen the disciplinary proceedings before the Higher Military Disciplinary Court. He argued that the criminal charges against him had been dismissed, which warranted a re-examination of his disciplinary conviction. 13. On 1 September 2009 the Higher Military Disciplinary Court dismissed the applicant’s application on the grounds that the dismissal of the charges against him in the criminal proceedings could not lead to a reopening of the disciplinary case. 14. The applicant challenged that decision before the Administrative Court (Upravni sud Republike Hrvatske). He submitted that the competent prosecutor in the criminal proceedings had dropped the charges against him, which suggested that the suspicion of him committing a criminal offence had been unjustified. In his view, the final judgment of the criminal court to dismiss the charges against him had amounted to a new fact which had shown that there had been no reasonable suspicion that he had committed an offence. Accordingly, the Higher Military Disciplinary Court’s refusal to reopen the case had deprived him of an effective means to challenge his unjustified dismissal from military service. 15. On 10 March 2010 the Administrative Court dismissed the applicant’s complaints as ill-founded, upholding the decisions of the lower disciplinary bodies. 16. On 26 May 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), relying on Article 18 of the Constitution (right to appeal), Article 28 (presumption of innocence), Article 29 (right to a fair trial), and Article 31 (ne bis in idem). He submitted that his disciplinary conviction and dismissal from military service had been based solely on the fact that he had been under criminal investigation. In his view, that had been unreasonable, particularly because all the charges against him had been dismissed in the subsequent criminal proceedings. The applicant thus contended that the disciplinary case should have been reopened and re-examined in order to remove the effects of the disciplinary conviction, in accordance with the principle of the presumption of innocence. However, given that his request to reopen the disciplinary proceedings had been dismissed, the applicant considered that there had been a violation of his constitutional rights to an effective appeal, a fair trial, the presumption of innocence and not be prosecuted and punished twice for the same offence. 17. On 28 October 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that a case on reopening proceedings did not involve a determination of the applicant’s rights and obligations. 18. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014), reads as follows: “Everyone has the right to respect for and the legal protection of his or her private and family life, dignity, reputation and honour.” 19. The relevant provision of the Military Service Act (Zakon o službi u oružanim snagama Republike Hrvatske, Official Gazette no. 33/2002, 175/2003 and 136/2004) which was applicable at the time, provided as follows: “Disciplinary offences are: ... - the commission of a criminal offence which can be prosecuted ex officio, or the existence of a reasonable suspicion that such an offence has been committed, ...” | 0 |
test | 001-181835 | ENG | RUS | COMMITTEE | 2,018 | CASE OF A.K. 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. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-156564 | ENG | SVK | ADMISSIBILITY | 2,015 | IBRAGIMOV v. SLOVAKIA | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Ali Nurdinovich Ibragimov, is a Russian national of Chechen ethnic origin, who was born in 1977 and is presently detained in Košice (Slovakia). He was represented before the Court by Mr I. Ezheyev of the Goodwill Without Borders foundation and Ms H. Demeterová of the nongovernmental organisation Help a Man, who were succeeded by Ms I. Rajtáková, a lawyer practising in Košice. 2. The Government of the Slovak Republic (“the respondent Government”) were represented by their Agent, Ms M. Pirošíková. 3. The present case is a sequel to application no. 51946/08, which had been submitted by the same applicant. The latter application was examined by the Court jointly with application no. 21022/08, which had been submitted by applicant Mr Anzor Chadidovich Chentiev. 4. The Court’s decision on the admissibility of applications nos. 21022/08 and 51946/08 is referred to below in paragraphs 17 and 18. 5. The facts of the case, as submitted by the parties and established by the Court in the context of applications nos. 21022/08 and 51946/08, may be summarised as follows. 6. The applicant was arrested by Slovakian border police on 18 January 2006, having no valid travel document. 7. On 15 February 2006 he applied for asylum in Slovakia. His request was ultimately dismissed, the final decision being given by the Supreme Court on 26 March 2008 and becoming final on 12 May 2008. 8. On 20 April 2006 the Office of the Prosecutor General of the Russian Federation (“OPGRF”) applied for the applicant’s extradition. The request was based on the fact that the applicant had been accused of several offences, namely banditry with aggravating circumstances and attempt on the life of officials of a law-enforcement agency. He was suspected of having participated, as a member of an organised group, in the killing of two agents of the Ministry of the Interior in Grozny in June 2001. 9. The above letter and another letter from the OPGRF dated 19 September 2006 indicated that the applicant would not be tried by the Special Court, would enjoy the guarantees of a fair trial including the assistance of counsel and that he would not be subjected to treatment contrary to Article 3 of the Convention. As to the risk of the death penalty, the letters indicated that there was a moratorium on the death penalty in Russia, that the applicant would not face the death penalty if extradited and that, should the applicant be sentenced to death, the sentence would not be carried out. Reference was made to the fact that the Russian Federation had signed Protocol No. 6 to the Convention and that under Articles 18 and 26 of the Vienna Convention on the Law of Treaties of 1969 it had an obligation not to use the death penalty. 10. The applicant was placed in preliminary detention with effect from 28 April 2006. On 23 May 2006 the Košice Regional Court remanded him in custody pending extradition. 11. On 3 September 2008 the Regional Court found the applicant’s extradition to Russia inadmissible, but the Public Prosecution Service challenged that decision before the Supreme Court. 12. On 29 October 2008 the Supreme Court overturned the contested decision and held that the applicant’s extradition was admissible. It established that the applicant had been involved, as a member of an organised group, in the killing of two Russian servicemen in Grozny in 2001. That killing had taken place after the military conflict had ended and it was not therefore an exclusively political or military action within the meaning of the relevant provision of the Slovakian Code of Criminal Procedure, which prevented the extradition of foreigners in such cases. The Supreme Court further noted that Russia was a member State of the Council of Europe and that respect for human rights was permanently monitored. 13. Finally, the Supreme Court considered sufficient the guarantees offered by the OPGRF, which stated that the applicant would not face the death penalty and that such punishment was in any event not carried out in Russia, that he would not be tried by a Special Court as well as the undertaking that Articles 3 and 6 of the Convention would be respected in his case. 14. On 3 December 2008 the applicant lodged a complaint with the Constitutional Court. He relied on Article 3 of the Convention and Article 1 of Protocol No. 6 and referred to various reports on the situation in prisons in the Russian Federation. In particular, he invoked reports on treatment to which persons of Chechen origin suspected of fighting against Russian authorities were subjected. He also invoked the fact that the death penalty had not been formally abolished in Russia. 15. On 17 December 2008 the Constitutional Court dismissed the complaint as being manifestly ill-founded. It relied on the reasoning of the Supreme Court which it considered relevant and sufficient from the point of view of protecting the applicant’s rights under the Convention and the Constitution. 16. In a letter of 12 October 2009 addressed to the Slovakian authorities the OPGRF confirmed the guarantees previously given with regard to the applicant, including respect for his physical and psychological integrity. The letter indicated that, if he was convicted and given a prison sentence, the applicant would serve his sentence in a federal prison, where the Convention and the European Standard Minimum Rules for the Treatment of Prisoners are taken into account. The Embassy of Slovakia to Russia would be informed of the place of the applicant’s detention and Slovakian diplomatic representatives would be able to visit the applicant and speak to him without the presence of third persons. The applicant would be provided with sufficient medical care. It was guaranteed that capital punishment would not be applied in respect of the applicant. Finally, the OPGRF guaranteed that the applicant would not be prosecuted for his political views or because of his race, religion or nationality. 17. In applications nos. 21022/08 and 51946/08 the applicants Messrs Chentiev and Ibragimov complained, against a similar background, that their extradition to the Russian Federation would amount to a breach of their rights under Articles 3 and 6 of the Convention and Article 1 of Protocol No. 6. 18. On 14 September 2010 a Chamber of the Fourth Section of the Court decided to join applications nos. 21022/08 and 51946/08 and to declare them inadmissible. In view of the documents before it, it found nothing which could reasonably have given the Slovakian authorities grounds to doubt the credibility of the guarantees provided by the OPGRF during the decision-making process. Thus, the Court accepted the conclusion reached by the domestic authorities, namely that the facts of the case did not disclose substantial grounds for believing that the applicants Messrs Chentiev and Ibragimov, if extradited to Russia, faced a real and personal risk of torture or of inhuman or degrading treatment or punishment within the meaning of Article 3 of the Convention. 19. In view of additional information submitted by the newly appointed representatives of the applicants Mr Ibragimov and Mr Chentiev on 15 November 2010, the President of the Fourth Section decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicants should not be extradited to Russia in the context of the present application until 23 November 2010. On the last-mentioned date a Chamber of the Fourth Section extended the interim measure by indicating to the respondent Government that the applicants should not be extradited until further notice. It was considered appropriate that they should have the possibility of having their cases reviewed at domestic level with the benefit of the new material, and that they should not be extradited pending such review. 20. The new application of Messrs Ibragimov and Chentiev was registered under no. 65916/10 and the case was later transferred to the Third Section of the Court, following the re-composition of the Court’s sections on 1 February 2011. 21. On 21 February 2012 a part of application no. 65916/10 was declared inadmissible and its remainder was notified to the respondent Government. 22. On 18 March 2014 the interim measure of November 2010 (see paragraph 19 above) was lifted in so far as it concerned Mr Chentiev. Subsequently, the remainder of application no. 65916/10 concerning him was reregistered under no. 27145/14, and it was declared inadmissible on 15 April 2014. 23. On 6 December 2010 the applicant Mr Ibragimov filed a fresh asylum claim in Slovakia. He referred to the suffering which he had had to endure during the war in Chechnya and his state of health, and indicated that his relatives were being threatened. The applicant’s arguments included those on which he relies in the context of the present application (see below). 24. The Migration Office discontinued the proceedings on that claim on 4 February 2011, finding that the applicant had submitted no relevant new information in relation to that already examined before. He then filed an administrative appeal to the Ministry of the Interior. 25. On 31 March 2011 the Minister of the Interior dismissed the applicant’s administrative appeal and upheld the decision of the Migration Office. The Minister’s decision stated that there had been no substantive change in the applicant’s situation which would justify departing from the previous decision on his earlier asylum claim. 26. On 31 May 2011 the applicant challenged the Minister’s decision by way of an administrative-law action, arguing that the refusal of his asylum claim had been contrary to the law and that the administrative authorities had failed duly to take into account additional information and documents on which he had relied in his renewed claim. 27. On 10 May 2012 the Bratislava Regional Court dismissed the action and its judgment was upheld by the Supreme Court on 1 August 2012 following the applicant’s appeal. However, the latter judgment was quashed by the Constitutional Court on 29 October 2013, following the applicant’s constitutional complaint. 28. After the quashing by the Constitutional Court of the Supreme Court’s judgment of 1 August 2012, it became incumbent on the latter to determine anew the applicant’s appeal against the judgment of 10 May 2012, which it did, in a judgment of 12 February 2014, by quashing it as well as the ministerial decision of 31 March 2011. 29. In turn, it then became incumbent on the Ministry to determine anew the applicant’s appeal against the decision of 4 February 2011 discontinuing the proceedings on his new asylum claim, which it did on 14 August 2014, by quashing that decision and remitting the matter to the Migration Office. 30. The reasons behind the Constitutional Court’s judgment of 29 October 2013, as reflected in the subsequent quashing judgment of the Supreme Court of 12 February 2014 and the quashing decision of the Ministry of 14 August 2014, were that the authorities had failed to respond adequately to the new information and arguments submitted by the applicant, as a result of which their decisions lacked proper reasoning and manifested signs of arbitrariness, and this was contrary to the applicant’s right to a fair hearing under Article 6 § 1 of the Convention. 31. The applicant’s new asylum claim is now pending at the administrative level. 32. Meanwhile, on 22 May 2012, the OPGRF had confirmed in a letter to the Slovakian authorities the validity of all guarantees previously offered. In particular, they submitted that, in the event of extradition, the applicant would not be submitted to treatment contrary to Article 3 of the Convention and would benefit from a fair trial, and the OPGRF would directly supervise the observance of all such guarantees. 33. The applicant has been suffering from stomach ulcers for fifteen years and has had psychological problems. While in prison in Slovakia, he was kept in solitary confinement for significant periods. In the course of 2011, in reply to letters from the applicant’s representatives, the prison administration rebutted allegations that he had not been receiving appropriate medical treatment. 34. The applicant had a fight on 9 June 2010 with another detainee in the course of which the latter suffered physical injury. In a different context, on 31 August 2010, a prison officer accused the applicant of having attacked him. Criminal proceedings against the applicant in these two matters appear to be still pending. 35. The applicant submitted a press release of 24 November 2010 indicating that the Minister of the Interior had stated, after a meeting of the Cabinet, that Slovakia must not be a place where persons facing prosecution for serious criminal actions in one of the member States of the Council of Europe could move freely. The Minister further indicated that the applicant’s case had been sufficiently examined by the Supreme Court, the Constitutional Court and the European Court of Human Rights. The press release indicated that the Minister had refused to speculate as to whether the applicants would be extradited. 36. The applicant maintained that the criminal proceedings against him had been instituted in Russia on the basis of statements by A.M. Mukayev which had been extracted under torture. In that regard Mr Mukayev has a pending application before the Court against Russia (no. 22495/08). The applicant also referred to the cases of M. Gasayev, A. Shakhayev and Z. Zubairayev. Mr Gesayev, for his part, had an application before the Court against Spain (no. 48514/06), which was declared inadmissible on 17 February 2009. Nevertheless, in 2012, he was granted asylum in France. 37. Further circumstances of these individuals are described in the Court’s partial decision of 21 February 2012 on the admissibility of the present application (see paragraphs 45-61 of that decision). 38. Other facts and documents referred to by the applicant are described in paragraphs 62–68 of the Court’s partial decision of 21 February 2012 on the admissibility of the present application. 39. In the decision of 15 April 2014 (see paragraph 22 above), the Court declared inadmissible application by Mr Chentiev, which had been submitted together with the present application, and which rested on identical or similar facts and allegations as the present application. The relevant part of the Court’s decision reads as follows: “21. The documents before the Court indicate that in the proceedings on his renewed asylum request [Mr Chentiev] withdrew his action by which he had sought a review of the administrative authorities’ decisions. On that ground the Supreme Court discontinued the proceedings without addressing the merits of the case ... 22. Furthermore, as regards applications against Slovakia, a complaint under Article 127 of the Constitution has been generally considered as an effective remedy in respect of alleged breaches of the Convention which the applicants have been required to use after having had recourse to other domestic remedies available ... 23. In view of the above, the Court considers that [Mr Chentiev] has failed to use the remedies available in Slovakia as required by Article 35 § 1 of the Convention. Therefore, the subsidiary role of the Convention mechanism ... prevents the Court from dealing with the application.” 40. Subsequently, Mr Chentiev was extradited to the Russian Federation. 41. According to a report of 30 April 2015 submitted by the respondent Government, representatives of the Embassy of the Slovak Republic to the Russian Federation carried out an official monitoring visit of Mr Chentiev in the Federal Detention Centre in Grozny on 28 April 2015. The visit took place without the presence of the Russian party. Mr Chentiev submitted that he had been placed in the Grozny detention centre in June 2014. Of his free will and without any compulsion, he confirmed that during his detention he had not been subjected to any mistreatment and had had no complaint about the conditions of his detention. According to the report, Mr Chentiev appeared to be in good health and had displayed no signs of any mistreatment. The conditions of his detention had been inspected and found adequate. It was concluded that the guarantees of the OPGRF in relation to the treatment of Mr Chentiev were actually observed and there was no reason to question them. 42. A number of relevant international instruments and reports concerning the situation in Chechnya, and Russia in general, are summarised, for example, in the Court’s judgments in the cases of M.G. v. Bulgaria (no. 59297/12, §§ 39-58, 25 March 2014) and Chankayev v. Azerbaijan (no. 56688/12, §§ 44-52, 14 November 2013, with further references). | 0 |
test | 001-159066 | ENG | LVA | ADMISSIBILITY | 2,015 | KIBERMANIS v. LATVIA | 4 | Inadmissible | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev | 1. The applicant, Mr Ivars Kibermanis, is a Latvian national who was born in 1960 and lives in Riga. He is represented before the Court by Mrs J. Kvjatkovska, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent at the time, Mrs I. Reine, and subsequently by Mrs K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 22 October 2004 the State Police instituted criminal proceedings for fraud, in particular for attempts to obtain by fraud the immovable property of a victim, K., by using fake cession contracts and carrying out other fraudulent activities, which had taken place, inter alia, at the bailiffs’ office where the applicant worked. 5. On 21 December 2004 a judge of the Riga City Latgale District Court authorised a search of the applicant’s office, limiting the seizure to: “... documents, contracts, letters, notices, and other documents concerning A.K., M.V., and E.M. for the period from 29 April 2004 until the material date”. 6. The search of the office was carried out on 22 December 2004, and the investigators seized two hard drives from the applicant’s and his assistant’s computers. The items were sealed and the search records do not reveal any complaints from the applicant with respect to the seizure. He nevertheless commented that the computers contained documents which under section 52 of the Bailiffs Law were not to be removed from the bailiffs’ office. 7. On 22 December 2004 the investigator ordered a technical expert report in order to find out whether the memory of the seized hard drives contained certain deleted documents: a cession contract dated 15 July 2004 and letters and other documents containing the names of four persons, A.K., E.M., and M.V. (all of whom at that time were suspects or accused in the same criminal proceedings), and I.K., the victim. On 27 December 2004 the hard drives were returned to the applicant. 8. On 23 December 2004 the applicant complained to the Office of the Prosecutor that the investigators had exceeded their powers by seizing the hard drives, since the judge’s search order had not authorised the seizure of anything but documents. He relied on Article 8 of the Convention, submitting that the search and seizure at his office had violated his right to respect for his private life and that of his clients in that the seized items had included two hard drives containing information relating to his private life and documents relating to his clients. Later he added the complaint that the seized objects had not been correctly sealed and were accessible to anyone. 9. On 29 December 2004 the applicant’s claim was dismissed. The prosecutor stated that the search had been conducted in accordance with section 52 § 4 of the Bailiffs Law, which in criminal proceedings concerning fraud authorised the seizure of documents from bailiffs’ offices, and that the search warrant must be interpreted as covering not only documents but also any other device containing the relevant documents. It added that the hard drives had not been seized, but only taken in order to extract from them the information the judge had authorised to be obtained. 10. The applicant submitted various similar complaints to higherranking prosecutors, claiming that during the search and seizure the investigating officer had been accompanied by an IT specialist who could have copied on the spot the necessary information from the hard drive, as the applicant had suggested. On 29 March 2005 a supervising prosecutor dismissed the complaint by contending that electronic documents which were stored in hard drives could be changed; therefore in the particular circumstances the seizure of the hard drives had been an appropriate decision, in that it would not have been possible to select the correct document without special knowledge. A similar conclusion was reached in the final decision of the Prosecutor General of 21 June 2005. 11. Meanwhile, on 3 May 2005 the applicant was charged with fraud. Subsequently the charges were amended, adding a charge of document forgery. In January 2006 the criminal case was sent to court in order for the adjudication to commence. 12. Following another complaint, on 3 February 2006 the Office of the Prosecutor General reiterated that the Prosecutor General had given a final decision on the complaints. Moreover, the applicant was reminded that the pre-trial criminal process had been terminated, therefore any future requests and submissions were to be addressed to the court. 13. On 23 March 2006 the applicant submitted to the investigating judge of the Riga City Latgale District Court a similar complaint to the one mentioned above about the allegedly unlawful seizure of the hard drives. The investigating judge noted that section 17 of the Criminal Procedure Law provided for a separation between the pre-trial criminal process and the trial, therefore the investigating judge could only have examined the complaints of alleged human-rights infringements during the pre-trial criminal process, that is before the criminal proceedings were referred to the Riga Regional Court for adjudication. Therefore, on 28 March 2006 the applicant’s complaint was dismissed owing to the fact that his criminal case had been sent to trial in January 2006 and the beginning of the adjudication had been set for 2 May 2006. 14. In September and November 2005 the applicant and his co-accused were asked to give voluntary voice samples to establish the authenticity of tapped telephone conversations between the two. They both refused and were subjected to compulsory voice sampling. On 24 November and 7 December 2005 the applicant was provided with copies of the material in the criminal case file. 15. On 5 December 2006 the Riga Regional Court convicted the applicant of fraud and sentenced him to five years’ imprisonment, which was suspended. The court relied on, inter alia, the telephone conversations between the applicant and the co-defendants which were tapped in 2004. 16. On various dates after the lower court’s judgment the applicant’s representative asked the Chairman of the Supreme Court and the appellate court to inform him whether the telephone tapping had been in accordance with the law, in particular whether it had been authorised by a judge. 17. On 1 June 2007 the Chairman of the Supreme Court refused to provide any information on grounds of State secrecy. On 31 August 2007 a judge sitting on the panel of the Criminal Cases Chamber of the Supreme Court (hereinafter “the appellate court”) told the applicant that she would herself ascertain whether the phone tapping of 2004 had been authorised by a judge. 18. On 15 May 2008 the appellate court quashed the lower court’s judgment in part and sentenced the applicant to six years’ imprisonment. The court referred to information received from the Bureau for the Prevention and Combatting of Corruption (KNAB) confirming that the phone tapping from 14 June to 14 November 2004 had been carried out after authorisation had been obtained from a judge of the Supreme Court. 19. Following an appeal on points of law by the applicant on 16 December 2008 the Senate of the Supreme Court quashed the appellate court’s judgment in part (on the counts of bribery and fraud) and sent it to the appellate court. The remainder of the judgment (in respect of document forgery) took effect. 20. On 9 September 2009 the appellate court delivered a judgment in the quashed part. The applicant submitted an appeal on points of law against the judgment in which he did not raise the Article 8 complaint later invoked before the Court. 21. In January and February 2009 the applicant asked the Chairman of the Supreme Court and the Office of the Prosecutor General respectively to provide information on whether there had been a judge’s authorisation for the recording of his telephone conversations. On 19 February 2009 the Office of the Prosecutor General confirmed that the tapping of the applicant’s telephone conversation was based on authorisation by a judge of the Supreme Court, as required by Article 7 (4) and Article 17 of the Law on Operational Activities. 22. The final judgment in the part which had been quashed was delivered on 2 March 2010, when the Senate of the Supreme Court terminated the criminal proceedings, finding that there had been an incorrect interpretation of the substantive norms of the Criminal Law. 23. Section 168 provides, inter alia, that a search may be conducted only on the basis of a judicial decision. 24. Pursuant to section 172, an investigator or prosecutor is strictly limited to seizing only documents which may have direct relevance to the [criminal] case in question. 25. Section 220 provides that complaints about the actions of the investigating authorities may be submitted to a prosecutor. 26. Section 222 provides that a complaint about the actions of a public prosecutor may be submitted to a higher prosecutor. 27. Section 40 provides that an investigating judge is the judge assigned by the chairperson of the district (city) court for a specific term in relation to each case and in accordance with the procedure specified by law, to supervise the observance of human rights in criminal proceedings. The powers of the investigating judge depend on the stage of the criminal proceedings. 28. Section 41 provides that during a pre-trial investigation and criminal prosecution an investigating judge has, inter alia, the duty of reviewing the conduct of the procedural activities. The same section provides that during the pre-trial investigation and criminal prosecution an investigating judge has the right to familiarise himself with all the material in the criminal case in respect of which the complaint has been received. He or she also has the right to request additional information about criminal proceedings where special investigative actions are being conducted, as well as to determine the terms for the performance of the special investigative actions. At this stage the investigating judge is authorised to apply a procedural sanction for the non-execution of duties or the non-observance of procedures during pre-trial criminal proceedings. He or she can propose that officials who are authorised to perform criminal proceedings are to be held liable for infringements of human rights committed in the carrying out of criminal procedural activities. 29. Section 41 (2) provides that from the moment the criminal case has been committed to trial, and before the adjudication of the case has commenced, the investigating judge has a duty to decide on the application of an accused in relation to the amending or revocation of security measures and the proposal of a public prosecutor in relation to the selection or amendment of a security measure. 30. The Office of the Prosecutor is a judicial institution which independently carries out supervision of the observance of law within the scope of its competence as determined by law. Its role is, inter alia, to supervise the work of investigative institutions and the investigatory operations of other institutions. 31. The relevant provisions are set out in the Court’s judgment in the case of Meimanis v. Latvia, no. 70597/11, §§ 26-30, 21 July 2015, in particular: “Section 5 provides: “If an individual believes that a body carrying out operational activities (operatīvās darbības subjekts) has infringed his lawful rights and freedoms, he or she is entitled to lodge a complaint with the prosecutor, who shall conduct an examination and issue a conclusion (atzinums) concerning the lawfulness of the contested actions of the official of the body carrying out operational activities (operatīvās darbības subjekta amatpersona), or the individual may bring an action before the court. Section 35 provides: “(1) The Prosecutor General and prosecutors specially authorised by him shall be responsible for monitoring (uzraudzība) the conformity of operational activities with the law. For the purposes of monitoring they shall be entitled to consult such documents, materials and information, at any stage of the operational activities, as are available to the investigating body (operatīvās darbības iestāde). Secret information and its sources shall be revealed only to the Prosecutor General, or to the prosecutors specially authorised by him with the permission of the head of the investigating body. (2) In order to take a decision with respect to operational measures which require approval by a judge, the judge shall be entitled to consult those documents, materials and information available to the investigating body on which the necessity for the operational measure, according to the special method, is based. Secret information and its sources shall be revealed to the judge only with the permission of the head of the investigating body.”” 32. On 11 May 2011 the Constitutional Court delivered its ruling in case no. 2010-55-0106. It found that the regulatory framework included in section 35 of the Law on Operational Activities referred to a monitoring mechanism for operational activities that must be assessed in conjunction with the right of a person to protection of his or her infringed rights. By relying on sections 35 and 5 of the above legislative act (see paragraph 31 above), the Constitutional Court concluded that the Prosecutor General and specialised prosecutors reviewed operational activities and, on the basis of the results of such a review, provided an opinion on the lawfulness of operational activities. However, the effective regulatory framework also established judicial supervision, including subsequent scrutiny. Consequently, the Constitutional Court did not agree with the argument raised by the applicant in the constitutional proceedings that the effective regulatory framework failed to provide independent subsequent scrutiny in respect of operational measures. For a more detailed review see Meimanis, cited above, § 24. | 0 |
test | 001-157263 | ENG | ITA | GRANDCHAMBER | 2,015 | CASE OF PARRILLO v. ITALY | 1 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Preliminary objection dismissed (Article 34 - Victim);Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | András Sajó;Ann Power-Forde;Dean Spielmann;Dmitry Dedov;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Mark Villiger;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen;Vincent A. De Gaetano | 11. The applicant was born in 1954 and lives in Rome. 12. In 2002 she had recourse to assisted reproduction techniques, undergoing in vitro fertilisation (“IVF”) treatment with her partner at the Centre for reproductive medicine at the European Hospital (“the centre”) in Rome. The five embryos obtained from the IVF treatment were placed in cryopreservation. 13. Before the embryos could be implanted the applicant’s partner died, on 12 November 2003, in a bomb attack in Nasiriya (Irak) while he was reporting on the war. 14. After deciding not to have the embryos implanted, the applicant sought to donate them to scientific research and thus contribute to promoting advances in treatment for diseases that are difficult to cure. 15. According to the information provided at the hearing before the Grand Chamber, the applicant made a number of unsuccessful verbal requests for release of the embryos at the centre where they were being stored. 16. In a letter of 14 December 2011 the applicant asked the director of the centre to release the five cryopreserved embryos so that they could be used for stem-cell research. The director refused to comply with her request on the grounds that this type of research was banned and punishable as a criminal offence in Italy under section 13 of Law no. 40 of 19 February 2004 (“Law no. 40/2004”). 17. The embryos in question are currently stored in the cryogenic storage bank at the centre where the IVF treatment was carried out. | 0 |
test | 001-177916 | ENG | AUT | CHAMBER | 2,017 | CASE OF RATZENBÖCK AND SEYDL v. AUSTRIA | 3 | No violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) | André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The applicants were born in 1966 and 1964 respectively and live in Linz. They have been living in a stable relationship for many years. 6. On 21 February 2010 the applicants lodged an application to enter into a registered partnership under the Registered Partnership Act (Eingetragene Partnerschaft-Gesetz). 7. On 17 March 2010 the Mayor of Linz dismissed their application in accordance with sections 1, 2 and 5(1)(1) of the Registered Partnership Act, finding that the applicants did not meet the legal requirements, as the registered partnership was exclusively reserved for same-sex couples. 8. The applicants appealed. Citing, inter alia, Articles 8 and 14 of the Convention, they complained of discrimination based on their sex and their sexual orientation. The Upper Austrian Regional Governor (Oberösterreichischer Landeshauptmann) dismissed the appeal on 18 August 2010, arguing with reference to Schalk and Kopf v. Austria (no. 30141/04, ECHR 2010) that as the Contracting States were allowed to restrict access to marriage to different-sex couples, it would appear unreasonable not to allow them to reserve access to registered partnerships exclusively for same-sex couples. 9. The applicants subsequently lodged complaints with both the Administrative Court and the Constitutional Court, arguing that marriage was not a suitable option for them, as it was substantially different from a registered partnership. In their view, a registered partnership was in many ways more modern and “lighter” than marriage. The applicants put forward several examples: the different statutory time-limit for divorce versus the time-limit for dissolution of a registered partnership in the event of an irretrievable breakdown (unheilbare Zerrüttung) of the relationship; the alimony payment obligations following a divorce/dissolution where blame could be placed on one spouse/partner; the obligations conferred by the respective legal institutions, in particular as regards trust, faithfulness and contributions to the household; and the consequences of a declaration of the death of a spouse/partner. The applicants argued that the Court’s considerations in Schalk and Kopf in respect of marriage were not applicable to the registered partnership, which was a new legal institution, introduced in the twenty-first century. It was therefore neither based on a long-standing discriminatory tradition and deep-rooted social connotations, nor aimed at possible procreation. 10. On 22 September 2011 the Constitutional Court dismissed the applicants’ complaint. The relevant parts of its judgment read as follows: “Article 12 of the [Convention] only applies to the traditional civil marriage ..., which has ‘deep-rooted social and cultural connotations’ and was, in the historical context, clearly understood ‘in its traditional sense’ (ECHR, case of Schalk and Kopf, §§ 55, 62). If the Court, in its judgment in the case of Schalk and Kopf, considers that the national provisions in the Council of Europe member States are diverse and range from allowing same-sex marriage to explicitly forbidding it, and concludes from this that, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by domestic law (ECHR, case of Schalk and Kopf, §§ 60f), this must, in view of the small number of States providing for a registered partnership for differentsex couples in addition to marriage, be even more valid for this question. As the [Convention] has to be read as a whole and its Articles have to be construed in harmony with one another, and as Article 12 of the [Convention] does not grant different-sex couples, in addition to the right to marry, a right to enter into a registered partnership, the prohibition of discrimination pursuant to Article 14 taken in conjunction with Article 8 of the [Convention], a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation beyond the scope of Article 12 of the [Convention] either (see, concerning the correlating question of the right of same-sex couples to marry, which cannot be derived from Article 14 of the [Convention] either, ECHR, case of Schalk and Kopf, § 101). ... [A]s the Austrian legislator has provided for the possibility of legal recognition for same-sex couples by introducing the registered partnership, people may rely on the prohibition of discrimination provided for by Article 14 of the [Convention] ... The Court has also stated, however, in the case of Schalk and Kopf, that the legislator may restrict access to marriage to different-sex couples because it has a certain margin of appreciation as regards the exact status conferred by alternative means of recognition. Moreover, the Court assumes that the Registered Partnership Act allows couples to obtain, in many aspects, a legal status that is equal or comparable to marriage; apart from parental rights, there were only slight differences (see ECHR, case of Schalk and Kopf, §§ 108 et seq.). Given that persons of different sex have access to marriage (see the [explanatory report on the draft law]); the registered partnership was introduced only to counter discrimination against same-sex couples; [the registered partnership] should, in substance, have the same effects as marriage; different-sex couples are not a group (historically) discriminated against; and there is no European consensus on this matter, it does not amount to a violation of Article 14 taken in conjunction with Article 8 of the [Convention] if the Austrian legislator does not grant different-sex couples access to the registered partnership. ... The Constitutional Court is not called upon to examine whether the particular differences between these legal institutions, as regards the legal consequences and dissolution options, comply with the principle of equality [Gleichheitssatz] and the prohibition of discrimination pursuant to Article 14 taken in conjunction with Article 8 of the [Convention], since the only question to be examined is whether different-sex couples have a constitutional right to access to the registered partnership.” 11. On 27 February 2013 the Administrative Court dismissed the applicants’ complaint (see paragraph 9 above) as unfounded. That decision was served on the applicants’ counsel on 25 March 2013. | 0 |
test | 001-142187 | ENG | MDA | CHAMBER | 2,014 | CASE OF KENZIE GLOBAL LIMITED LTD v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 5. The applicant is a company incorporated in the United Kingdom. 6. At the time of the events the applicant company was the creditor of company C. which, in its turn, was the creditor of company P. On 1 October 2005 the applicant company and company C. concluded an agreement by which the debt owed by company P. to company C. was assigned to the applicant company in lieu of the debt owed by company C. to the applicant company. 7. Later company P. became bankrupt and the insolvency procedure was commenced in its respect. On 10 May 2006 the applicant company requested that the Chişinău Economic Court allow it to replace company C. in the list of creditors of company P. In so doing, the applicant company relied on an agreement that it had concluded on 1 October 2005 with company C. 8. On 5 June 2006 the Chişinău Economic Court held a public hearing in the case and accepted the applicant company’s request. As a result the applicant company replaced company C. in the list of creditors of company P. with a debt of some 14,015,000 Moldovan lei (MDL) (the equivalent of some 901,000 euros (EUR)). 9. On 16 October 2006 company C. lodged an appeal against the above decision on the ground, inter alia, that the agreement of 1 October 2005 was faulty and that the persons who had signed it from both sides had acted ultra vires. 10. On 9 November 2006 the Supreme Court of Justice examined the appeal lodged by company C. in a hearing to which the applicant company had not been summoned to appear. The other parties participated in the hearing. The Supreme Court upheld the appeal and reversed the judgment of the lower court. In particular, the Supreme Court held that the person who had signed the agreement of 1 October 2005 on behalf of company C. had acted ultra vires, because at the relevant time she had been on maternity leave. The decision of the Supreme Court of Justice was final and the applicant company was excluded from the list of creditors of company P. | 1 |
test | 001-157278 | ENG | RUS | COMMITTEE | 2,015 | CASE OF TOMAYLY v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev | 4. The applicant was born in 1961 and lives in Korenovsk. 5. Between 6 October 2005 and 21 December 2005 the applicant was held in remand prison IZ-23/1 in Krasnodar. The prison was overcrowded. Thus, the applicant’s cell measuring eighteen sq. m was equipped with four sleeping places and accommodated up to eight inmates; cell 187 measuring ninety-six sq. m was designed for twenty-eight individuals and housed up to thirty-six prisoners. 6. On 19 October 2005 the Korenovskiy District Court of the Krasnodar region convicted the applicant of embezzlement and sentenced him to five years and six months’ imprisonment. On 21 December 2005 the Krasnodar Regional Court upheld the judgment on appeal. 7. Between 21 December 2005 and 20 April 2006 the applicant served his sentence in the IK-9 facility, a correctional colony located in the Krasnodar Region. The dormitory in which the applicant slept measured 198 sq. m, it offered forty-nine sleeping places but actually accommodated up to seventy inmates. | 1 |
test | 001-147333 | ENG | RUS | CHAMBER | 2,014 | CASE OF MAMAZHONOV v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 13. The applicant was born in 1968 in Khanabad, Uzbekistan. 14. In 2008, in the face of potential prosecution for religious extremism, he fled Uzbekistan with a forged Kyrgyz passport under an assumed name. On 19 April 2008 he entered the territory of the Russian Federation. 15. On 6 September 2009 he obtained a Russian passport using forged documents. 16. On 26 January 2009 and 28 September 2012 the applicant was indicted by the investigative authorities of Uzbekistan on charges of terrorism, inciting religious hatred, encroaching upon the constitutional order, illegally crossing the State border, organising a criminal group, producing and disseminating material threatening public security and order, participating in religious extremist, separatist, and fundamentalist movements, and smuggling. Since the Uzbek authorities could not locate him he was indicted in absentia. 17. According to the Uzbek investigative authorities, in 2006 and 2007 the applicant had been actively involved in operating the terrorist organisation ‘Islamic Movement of Uzbekistan’, which has extensive ties with Al-Qaeda, Islamic Jihad and Libyan Jamaat. He allegedly took part in recruiting and training terrorists, smuggling extremist material into Uzbekistan, organising gatherings where extremist material, including video and audio recordings, were viewed and distributed, fundraising for terrorist acts, training recruits in using firearms and hand-grenades, and facilitating illegal border crossings by the leaders of the Islamic Movement of Uzbekistan. The Uzbek authorities further contended that members of the above-mentioned group had been involved in terrorist acts that had taken place in Khanabad and Andizhan on 25 and 26 May 2009. 18. On 27 January 2009 the Andizhan Criminal Court ordered the applicant’s pre-trial detention. The order was issued in absentia and the reasons given were the gravity of the charges against the applicant and the fact that he could not be located. On the same day an investigator issued an international search and arrest warrant against him. 19. In March 2010 the Uzbek investigative authorities sent a notification to the Ministry of Internal Affairs Anti-Extremism Department in the Orenburg Region that according to their intelligence, the applicant was living in the region. 20. On 10 March 2010 the applicant’s name and his two aliases were put in the ‘RM’ public transport search and identification system. The record mentioned his alleged association with radical and extremist organisations. 21. On 11 June 2012 the ‘RM’ system registered the sale of a ticket for a passenger train going from Moscow to Bishkek. The ticket had been bought under the applicant’s assumed name, which he used in his Russian passport. An alert was sent to the Ministry of Internal Affairs. 22. On 13 June 2012 at approximately 2.45 a.m. the applicant was apprehended at Orenburg railway station by officers of the Ministry of Internal Affairs Anti-Extremism Department and Federal Security Service (FSB). During the initial identity check, he used his Russian passport bearing an assumed name. 23. After the applicant’s true identity had been established, an ‘express interview’ was conducted with him by Orenburg’s assistant transport prosecutor, Mr M. The applicant stated during the interview that he had fled Uzbekistan after learning that he was suspected of taking part in watching extremist material, while his prosecution was actually politically motivated. He further stated that since his entry into Russia, he had been living on various construction sites in Moscow, Tula and Orenburg. 24. At 4.10 a.m. a record of apprehension of a person under an international search and arrest warrant was drawn up and the applicant was officially informed of his rights and the nature of the charges in Uzbekistan. 25. On the same day at 1.40 p.m. he was once again interviewed by Mr M. During the interview, he was informed of the right not to incriminate himself and that he would be provided with an interpreter if needed. He expressed his wish to give answers in Russian. The interview record was verified and signed by him. 26. The applicant stated during the interview that in 2008 he had decided to leave Uzbekistan because of possible prosecution for watching video material which was considered extremist by the Uzbek authorities. He further stated that he had procured a forged Kyrgyz passport under an assumed name, which he had used to enter Russia and obtain Russian citizenship. In particular, the interview record contained the following passages: “... Until 2008 my permanent income came from exchanging currency in Khanabad and selling fruit... In April 2008 an acquaintance [working] in law enforcement informed me that my name was on the list of people suspected of extremism. Aware that my acquaintances had been prosecuted for watching extremist material and sentenced to lengthy prison terms, I decided to evade law enforcement, since I had also watched that material... In June 2012 I decided to return to Uzbekistan because I no longer wished to be a fugitive and it was necessary to make contact with the law enforcement bodies in Uzbekistan to resolve the situation surrounding [their] search [for me]. As to the criminal case against me I learnt of its existence from my wife during a phone conversation in 2009...I did not understand what the charges against me were, but presumed that I had been prosecuted for watching the extremist videos. I did not commit any of the crimes I am accused of, except illegally crossing the Uzbek border. In spring 2008 I watched a documentary at home with some of my acquaintances about the killing of Muslims in Afghanistan and Iraq by US soldiers – I presume they were Muslims because the majority of population in those countries are followers of Islam. We did not like the actions of the American soldiers and we discussed that. I do not think I committed any crime... I did not request political asylum or refugee status in the Russian Federation... I believe that my prosecution is politically motivated, because I do not like Uzbekistan’s policies on entrepreneurs; an opinion I expressed to the State institutions of Uzbekistan.” 27. Later that day the applicant was placed in a pre-trial detention facility, SIZO-3 in Orenburg, pursuant to the detention order issued by the Andizhan Criminal Court. The Embassy of Uzbekistan in the Russian Federation was notified of the arrest. 28. On 12 July 2012 an extradition request under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 (“the Minsk Convention”) was lodged by the Prosecutor General’s Office of Uzbekistan. Making reference to the provisions of the Minsk Convention and Uzbek legislation, the request included the following assurances: 29. On 13 July and 6 December 2012 and on 6 March 2013 the applicant’s detention was extended by the Promyshlenniy District Court of Orenburg. 30. On 12 November 2012 the Deputy Prosecutor General of the Russian Federation examined the merits of the extradition request and authorised it in respect of the charges of terrorism, participating in an armed group, and illegally crossing the Uzbek border. The request was refused in respect of the other charges due to a lack of evidence and/or their being no comparable crimes under Russian law. The extradition authorisation did not examine any risks to which the applicant might have been exposed in Uzbekistan and merely stated that “no obstacles to extraditing Mr Mamazhonov under international law or the legislation of the Russian Federation had been established”. 31. On 28 November 2012 the applicant’s representative Mr Gladkikh lodged a complaint against this decision, alleging that the applicant was at a heightened risk of being subjected to torture if extradited to Uzbekistan. The complaint stressed that since the applicant’s asylum application had not been definitively dismissed on appeal, any extradition authorisation was unlawful. 32. The complaint alleged that contrary to the interpretation of the law in force provided by Ruling no. 11 of 14 June 2012 of the Plenum of the Supreme Court of the Russian Federation (see paragraphs 98 below), the prosecutor had neglected his incumbent duty to consider the risk of torture in Uzbekistan, having regard to the general situation in the destination country and the applicant’s personal situation, and the fact that the text of the extradition authorisation gave no reasons in this regard. 33. The applicant’s representative also referred directly to eleven of the Court’s judgments issued between 2008 and 2012 in which a violation under Article 3 of the Convention had been found in similar circumstances. He argued that the prosecution authorities had disregarded the Court’s conclusion that individuals accused of crimes concerning politics and religion constituted a “risk group” systematically exposed to ill-treatment in Uzbekistan. Accordingly, their extradition, just like the applicant’s, had been contrary to the Russian Federation’s obligations under the Convention. 34. Referring to reports by the United Nations agencies, Amnesty International, Human Rights Watch and CIVICUS in the last nine years, the applicant’s representative alleged that the use of torture and ill-treatment was commonplace in respect of people accused of religiously and politically motivated crimes. 35. Lastly, relying on the official position of certain Russian State institutions, Mr Gladkikh highlighted the fact that the Ministry of Foreign Affairs in its note of August 2009 “On human rights in Uzbekistan” stated: “... criminal trials are characterised by a dependence on forced confessions, and a lack of adequate legal representation... it is also noted that people convicted of anti-State, religious and politically motivated crimes are incarcerated in much stricter regimes than others...” 36. The complaint also quoted a March 2011 letter from the head of the Third CIS Department of the Ministry of Foreign Affairs to the director of the Federal Migration Service: “... Considering the reasoning of the European Court of Human Rights, it is actually possible to state that currently the extradition, deportation or administrative removal to Uzbekistan of any person wanted by the law enforcement agencies... will constitute a violation of the Convention...” 37. On 27 December 2012 the Orenburg Regional Court dismissed the complaint. It stated that the approval of the request was lawful, properly reasoned, and took into account the assurances of the Uzbek authorities. Furthermore, it considered that the ill-treatment allegations were merely a defence strategy of the applicant, who had procured a forged Kyrgyz passport under an assumed name, illegally crossed the Russian border on 19 April 2008, obtained Russian citizenship under an assumed name, and lodged an asylum request only after his apprehension under the international search and arrest warrant. The court noted that he had been convicted in Russia on 1 October 2012 of forgery and fined 6,000 Russian roubles (RUB) (150 euros (EUR)) (see paragraphs 40-41 below). It also stated that the extradition authorisation given by the Deputy Prosecutor General did not presume an automatic transfer of the applicant to Uzbekistan, and that no extradition could take place before his asylum proceedings had finished. 38. On 28 December 2012 the applicant’s representative Mr Gladkikh appealed to the Supreme Court against the Regional Court’s decision, relying on essentially the same arguments as presented before. In addition, he stated in his appeal that contrary to the decision of the Regional Court, the Uzbek authorities had not explicitly stated that the applicant would not be subjected to torture, but had limited their assurance to a statement that the legislation in force prohibited it (see paragraph 28 above). The representative referred the Supreme Court to the Court’s judgment in the case of Khaydarov v. Russia ( no. 21055/09, § 105, 20 May 2010), where the existence of domestic and international law provisions prohibiting illtreatment was not considered to be a sufficient assurance in itself. 39. On 12 March 2013 the Supreme Court of the Russian Federation dismissed the appeal and upheld the lower court’s decision and extradition authorisation. The relevant parts of the decision read as follows: “... [In his appeal] Mr Mamazhonov indicates that [the Regional Court] ignored the fact that ... he had requested asylum and thus may not be returned to Uzbekistan. The court did not examine all the circumstances and adopted a wrong decision... The attorney Mr Gladkikh requests in the interests of Mr Mamazhonov...that extradition proceedings be terminated. The attorney believes that [the Regional Court] violated Russian and international asylum law and did not examine the fact that the applicant had requested asylum. The court also did not examine any evidence proving that Mr Mamazhonov might be subjected to torture...in Uzbekistan. In his opinion, the case file does not contain guarantees that [the applicant] would not be subjected to unlawful actions and [the decision must therefore be quashed as unreasoned]... When the Prosecutor General’s Office decided to transfer Mr Mamazhonov to the law enforcement agencies of Uzbekistan, his asylum request was denied. [Furthermore, the Supreme Court restated the reasons for the denial of asylum and the assurances provided by the Uzbek authorities.] ... The arguments of Mr Mamazhonov and his counsel that in Uzbekistan he will be persecuted on religious and political grounds are unfounded, since there is no objective proof. The material in the case file demonstrates that Mr Mamazhonov’s prosecution by the Uzbek authorities is of a general nature and is not related to the policies of that State. Mr Mamazhonov did not submit to the court any convincing arguments giving weighty grounds to believe that the Uzbek authorities might subject him to torture, inhuman or degrading treatment or punishment, or that he might be persecuted on the grounds of race, religious beliefs, citizenship, ethnicity, belonging to a social group, or political convictions. [The Supreme Court] finds no grounds to annul the decision...” 40. On 10 July 2012 a criminal investigation was initiated by the Russian authorities in respect of the use of forged identification papers by the applicant. 41. On 1 October 2012 the Justice of the Peace for the 8th Circuit of the Promyshlenniy District of Orenburg convicted the applicant of using of forged documents (a Russian passport) and fined him RUB 6,000 (EUR 150). During the trial, he acknowledged his guilt, but stated that the procurement of false Kyrgyz and Russian identification papers had been a necessary measure to avoid his arbitrary prosecution in Uzbekistan for the crimes he had not committed. 42. On 3 August 2012 Mr Gladkikh applied on the applicant’s behalf for asylum, alleging that the criminal charges against him had been “fabricated” after he, a successful businessman, had refused to pay bribes and provide payoffs to the Uzbek authorities. 43. On 20 August 2012 the applicant was interviewed by the immigration authorities and his answers were recorded in an asylum questionnaire. 44. On 24 August 2012 the Orenburg Regional Department of the Federal Migration Service refused to consider the merits of his request, because in their opinion it had been lodged only to evade prosecution in Uzbekistan, and the applicant had failed to substantiate his alleged fear of return. The relevant parts of the decision read as follows: “... In the questionnaire, Mr Mamazhonov states that the reasons for his arrival in Russia were the extortionist demands of the authorities, unlawful persecution for his business success, and fear for his life. He submitted no other reasons, and stated that he had never been a member of religious, political or non-governmental organisations. According to the questionnaire, there were no incidents of violence against him Uzbekistan; he never complained of persecution to the law enforcement or State institutions in Uzbekistan or to human rights organisations. He explains his unwillingness to return to the country of origin by his fear of prosecution for serious offences by the law enforcement authorities in Uzbekistan... The fact that Mr Mamazhonov, expressing his wish to receive protection from the Russian Federation... did not lodge his asylum request at the border crossing in 2008... or attempt to legalise his status during the lengthy period thereafter, and [did so] only after his apprehension [under the warrant] for crimes committed in Uzbekistan, demonstrates that the objective reason for...his arriving in Russia was to evade prosecution for crimes committed outside of Russia... During his stay in Russia between June 2008 and August 2012, Mr Mamazhonov had also committed an offence by [being in possession of] forged documents and unlawfully obtaining a Russian passport... It follows that the analysis of the reasons given in the asylum questionnaire, case file and search for the applicant for the crimes committed outside of Russia... does not lead to a conclusion [that there is any risk of him being persecuted in Uzbekistan].” 45. On 16 October 2012 the Leninskiy District Court of Orenburg in reviewing the above decision, established that the applicant had illegally crossed the Russian border on 19 April 2008, procured a forged Kyrgyz passport under an assumed name, obtained Russian citizenship under that name, and lodged an asylum request only after his apprehension under the international search and arrest warrant. On that basis the court rejected his complaint against the immigration authorities’ decision. 46. On an unspecified date the applicant appealed against the District Court’s decision. He alleged that both the immigration authorities and District Court had failed to consider his claims that he risked ill-treatment if returned to Uzbekistan. 47. On 11 January 2013 the Orenburg Regional Court dismissed the appeal and upheld the lower court’s decision and immigration authorities’ refusal to consider the asylum request. In particular, it stated: “Information from reputable international human rights organisations concerning the unfavourable political climate in Uzbekistan and practice of malicious persecution of those accused of crimes against the State was not proven by objective evidence within the framework of Mr Mamazhonov’s case and may not serve as a basis for the annulment of a judicial decision... Moreover, a competent State institution deciding on asylum status independently evaluates the situation in a specific country relying on its own sources, and the opinion of human rights organisations is not determinative of such a decision...” 48. On 7 February 2013 the applicant lodged a request for temporary asylum in Russia, but it was denied by the immigration authorities on 6 March 2013. 49. On 8 March 2013 the applicant’s representative Mrs Yermolayeva submitted to the Court a request for the application of an interim measure under Rule 39 of the Rules of Court to stay the applicant’s extradition to Uzbekistan until further notice. The request specified that the applicant’s extradition would expose him to a risk of treatment contrary to Article 3 of the Convention. The evidence and arguments presented to the Court were essentially the same as the evidence and arguments previously presented to the national authorities. 50. On 11 March 2013 the Acting President of the First Section indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice. 51. By a letter of 15 May 2013 the Russian Government informed the Court that they had taken relevant steps to guarantee that the applicant would not be extradited to Uzbekistan until further notice. In particular, the Prosecutor General’s Office, departments of the Ministry of Internal Affairs, and Border Guards Service had been ordered to prevent the applicant’s extradition or removal from Russia, and other law enforcement agencies had been instructed to comply with the measure applied. 52. On 11 June 2013 the applicant’s representative Mr Gladkikh was informed that the applicant would be released on 12 June 2013. However, since it was a public holiday in Russia the release was rescheduled to 9 a.m. the following day. Mr Gladkikh was informed in person. 53. A decision to release the applicant dated 13 June 2013 was issued by the Prosecutor General’s Office. It restated the procedural history of the case available to the Russian authorities at that time and explicitly mentioned the application of an interim measure by the Court. In the absence of any further legal grounds for the applicant’s detention, his release was ordered. 54. According to statements submitted to the Court by the applicant’s representative, he arrived at the detention facility on 13 June 2013 at 6 a.m. Despite his previous enquiries about the time of release, Mr Gladkikh was informed at 7.30 a.m. that the applicant had been released at 7.15 a.m. and had left in an unknown direction. According to the Government’s submissions, the release had taken place at 6.30 a.m. 55. Later the same day Mr Gladkikh lodged a request with the Investigative Committee of the Orenburg Region. The relevant parts of the request read as follows: “... [On 12 June 2013] officers at the checkpoint [of SIZO-3] informed me that... Mr Mamazhonov was going to be released on 13 June, no earlier than 9 a.m. Relying on the veracity of the information provided, I arrived this morning at SIZO-3, where I was informed at 7.15 a.m. [sic] that Mr Mamazhonov had already been released and had departed in an unknown direction. I was refused information about the precise time of release [sic]. At the present moment I’m not aware of the whereabouts of my client. I draw your attention to the fact that during a private conversation, Mr Mamazhonov asked me to be personally present during his release and to further support him until the regularisation [of his immigration status] in Russia; he strongly denied any possibility of returning to Uzbekistan voluntarily. Having regard to these facts, and the fact that there have previously been instances of disappearances from Russia of Uzbek nationals charged with State crimes, whose extradition was being sought [by the Uzbek authorities], I have grounds to believe that Mr Mamazhonov was abducted by interested parties with a view to transferring him to Uzbekistan. Accordingly, I request [that]: 1. An inquiry is initiated into these allegations. 2. Criminal proceedings are initiated into the suspected [abduction]...” 56. Similar requests were lodged with the Prosecutor General’s Office, Border Guards Service of the FSB, and the police. 57. On 14 June 2013 the administration of the detention facility SIZO3 sent a letter to the Embassy of Uzbekistan, informing it of the applicant’s release. 58. Following Mr Gladkikh’s request a preliminary inquiry into the applicant’s alleged disappearance was initiated by the Internal Affairs Department OP-4 in Orenburg. 59. On 17 June 2013 the inquiry was handed over to the Investigative Committee, since the crime suspected fell under their jurisdiction. The inquiry case file reached them on 19 June 2013. 60. On 19 June 2013 the investigator examined the applicant’s cell in SIZO-3 and seized from the administration the applicant’s personal file and the available video surveillance recordings. 61. On the same day he questioned four officers working at the detention centre who were present during the applicant’s release. They stated that the applicant (i) had been released at the expiry of the court-ordered detention, (ii) had been informed of his obligation to register with the immigration authorities, (iii) had not made any complaints or requests during his release, and (iv) had not been approached after his release by anyone in uniform, Asian-looking or anyone else. 62. On 20 June 2013, in reply to the investigator’s request, the Federal Migration Service informed him that there was no record of the applicant in their databases, and the Border Guards Service of the FSB stated that due to the absence of any IT systems at the borders of the Orenburg Region it was not possible to provide information about a specific person. 63. On 21 June 2013 the period of inquiry was extended by ten days to collect further evidence. 64. On the same day, in reply to the investigator’s request, the Internal Affairs Department in Orenburg Region stated that since 13 June 2013 the applicant had not been apprehended or detained by the police. 65. On 26 June 2013 the applicant’s cellmate in SIZO-3, Mr G., was interviewed after being cautioned about criminal liability for perjury. The relevant part of the interview record stated as follows: “.... In June 2013 he was released... He did not know about his release from detention because he was woken up early in the morning and told that he was being released...he did not inform me of his future plans. I am not aware where he might be.” 66. On 26 June 2013 an officer of the Anti-Extremism Department in the Orenburg Region, Mr Ab., who was involved in apprehending the applicant, was questioned after being cautioned about criminal liability for perjury. He stated, in particular, that (i) the applicant was of no interest to his agency since there was no evidence of his involvement in criminal activities in Orenburg, (ii) that he was not aware of the applicant’s possible whereabouts, and (iii) that there had been no contact or exchange of information between his agency and the Uzbek law enforcement agencies. 67. On the same day the investigator requested from the Transport Prosecutor’s Office in Orenburg a copy of the extradition case file, in order to fully consider the possibility of the applicant’s forced removal to Uzbekistan. It was provided on 28 June 2013. 68. On the same day, in reply to the investigator’s repeated request, the Federal Migration Service informed him that there was no record of the applicant crossing the State border after 11 June 2013. 69. On 27 June 2013 an officer of the FSB in the Orenburg Region, Mr St., who was involved in apprehending the applicant, was questioned after being cautioned about criminal liability for perjury. His statements were essentially the same as those provided previously by Mr Ab., the officer of the Anti-Extremism Department in the Orenburg Region (see paragraph 66 above). 70. On the same day the applicant’s representative Mr Gladkikh was interviewed after being cautioned about criminal liability for perjury. The relevant part of the interview records stated as follows: “On 12 June 2013 I arrived at SIZO-3 in Orenburg with Mr Al. and Mr R.M., who lives in Uzbekistan but works in Moscow and who is a brother of Mr Mamazhonov... I was told [by officers of the detention facility] that the client’s release would not take place that day, since the papers were not ready... [I was told to return the next day by 9 a.m.] ... While Mr Mamazhonov was detained in SIZO-3 I frequently visited him, but he never informed me of any visits from law enforcement agents or anyone else [or] the use of unlawful investigative measures or torture. If something like that had happened to him, he would have told me about it. I personally have also never been contacted about Mr Mamazhonov by agents of the State or other services of Russia or Uzbekistan; from what I know the same applies to his relatives... ... [O]n 13 June 2013 I arrived at SIZO-3 at around 6 a.m. The officer on duty refused to provide me with any information on Mr Mamazhonov... [she] told me that at 7.15 a.m. he was being released... At 9 a.m. I called SIZO-3 and was informed that Mr Mamazhonov had been released at 8 a.m. To date I have not been aware of his whereabouts, his relatives do not have this information either, as he did not make any contact. I am saying that his Russian passport has been seized and his Uzbek passport has been lost. Before his release Mr Mamazhonov did not inform me of an intention to move somewhere after his release; on the contrary, he wanted to regularise his status in Russia. I personally believe that certain parties from Uzbekistan interested in his return are implicated in [his] disappearance. There have been similar cases in Russia in the past.” 71. Later that day, in reply to the investigator’s request, the Transport Department of the Ministry of Internal Affairs in Orenburg stated that there was no record of the applicant buying train or plane tickets between 13 and 27 June 2013. 72. On 27 June 2013, relying on the results of the preliminary inquiry, the Investigative Committee initiated criminal proceedings in respect of the applicant’s disappearance and suspected murder. The investigation was assigned to a group of investigators from the Investigative Committee, the FSB, and the regional Ministry of Internal Affairs. 73. On 1 July 2013 a detailed plan of the investigation was adopted by the group of investigators, presided by Mr L. The plan contained several dozen investigative measures each assigned to specific investigators. The measures were aimed at detecting the current whereabouts of the applicant, discovering information and evidence, and verifying five existing theories about the applicant’s disappearance. The theories adopted were that: 74. Later that day an investigator examined the area around SIZO-3 and established that there had been no outside video surveillance cameras placed there. 75. On 8 July 2013 the applicant’s representative Mr Gladkikh challenged the opening of an investigation into his client’s disappearance and suspected murder, arguing that the investigation should be based on his suspected abduction. On 27 July 2013 he was informed by the investigator that there was no evidence to substantiate the suspected abduction. 76. Later that day the applicant’s representative Mr Gladkikh was once again interviewed after being cautioned about criminal liability for perjury. His statement was essentially the same as his previous one (see paragraph 70 above). 77. On 9 July 2013 the release officer of SIZO-3, Mrs L.S., was questioned after being cautioned about criminal liability for perjury. The relevant parts of the interview records read as follows: “... [The prosecutor’s decision to release Mr Mamazhonov on 13 June 2013 due to expiry of the maximum period for his detention] arrived at SIZO-3 on 11 June 2013 at around 5.30 p.m. ... During the afternoon of 11 June 2013, the lawyer Mr Gladkikh...called me to inquire about the date of release... [Mrs L.S. informed him that it would be 13 June 2013]... Around 10 a.m. on 12 June 2013 I was informed by officers at the checkpoint that Mr Gladkikh had visited [SIZO-3 to inquire about Mr Mamazhonov’s release]... On 13 June 2013 I arrived at work at around 6.30 a.m. at the request of the head of SIZO-3, Mr L.A.... [and immediately took part in Mr Mamazhonov’s release]... During the release, Mr Mamazhonov asked me whether his lawyer was waiting for him, but I could not tell [him] because I did not know...” 78. On the same day the head of SIZO-3, Mr L.A., was questioned after being cautioned about criminal liability for perjury. The relevant parts of the interview records read as follows: “... During Mr Mamazhonov’s detention in SIZO-3 and after the prosecutor’s decision to release him, I was made aware of [his] concerns for his safety after release. Accordingly, in order to ensure his safety I made the decision to release [him] before regular working hours... I took part in [his] release...as an officer in charge of supervising the release procedure... [After release] Mr Mamazhonov left the premises of SIZO-3. He left the area and passed the guards alone... I am not aware if anyone was meeting him...” 79. On 15 July 2013 three security guards of SIZO-3 who were present during the applicant’s release were questioned after being cautioned about criminal liability for perjury. They all stated that the release had taken place at around 6.30 a.m. and were not aware if anyone had been expecting the applicant, since they could not leave their duty stations in the building. 80. On 12 July 2013, in reply to the request of 8 July 2013, the administration of SIZO-3 informed the investigation that while there were video surveillance cameras covering the building and adjacent area, the recordings of 13 June 2013 were no longer available due to the expiry of their storage period. However, the recording from the camera at the checkpoint of the detention facility covering the period between 5 and 6.57 a.m. that day was available (see paragraphs 91-95 below), since a local copy had been saved following a request in the course of the preliminary inquiry. 81. On 17 and 20 July 2013 the FSB in the Orenburg Region informed the chief investigator that they had complied with the investigative tasks assigned to them. They stated that they had contacted the National Security Service of Uzbekistan in order to obtain information about the applicant’s possible whereabouts, establish a list of his relatives, and procure the necessary background information. They further stated that according to their sources, the applicant might have been assisted in illegally crossing the Russian border by Mr Al., with whom he had previously collaborated extensively in illegal activities. 82. On 1 August 2013 the applicant’s cellmate in SIZO-3, Mr G., was repeatedly questioned after being cautioned about criminal liability for perjury. He mostly confirmed his previous statements, supplementing them with the following relevant passages: “... Mr Mamazhonov told me that in Uzbekistan he had been prosecuted for terrorism. He told me that in Uzbekistan he might have been sentenced to 18 to 19 years’ imprisonment... [He] also told me that in the summer of 2012 he had decided to travel to Uzbekistan by train, because he was worried about his two or three wives and seven children... ... He had only learnt of the international search warrant after his apprehension... [He] did not want to return to Uzbekistan, because he would have been sentenced to lengthy imprisonment there... [He] also mentioned that if there was no possibility of him staying in Russia, he would travel to Kyrgyzstan or Kazakhstan, where he had acquaintances... [A day before his release he was informed of it] Mr Mamazhonov told me that his lawyer was going to inform his friends and relatives of the day of release and that they were going to come and meet him... [He was convinced that his friends and relatives] were going to help him relocate to another country if he was not able to stay in Russia, because he did not want to return to Uzbekistan...” 83. On 5 August 2013 Mr R.M., the applicant’s brother, was officially recognised as a victim by the investigative authorities. 84. On the same day the investigator sent a request for legal cooperation to the Uzbek authorities. The competent authorities were requested to inform Mr R.M. of his status in the investigation conducted in Russia and question him according to a non-exhaustive list of approximately thirty questions concerning the applicant’s background, state of health and mind, social and family ties, political and religious affiliations, and questions in respect of the events of 12 and 13 June 2013. Lastly, the Uzbek authorities were requested to collect a saliva sample from him for his DNA, in the event of a future need for identification. 85. On 7 August 2013, in reply to the request of 5 August 2013, the Federal Migration Service informed the investigation that there was no record of Mr Mamazhonov crossing the Russian border. 86. According to the material in the Court’s possession, other investigative activities between June and August 2013 included a screening of the applicant’s possible contacts, a search for possible witnesses, monitoring of the sale of train and airline tickets, putting the applicant on the list of missing persons, and sending legal cooperation requests to neighbouring regions. 87. The applicant’s representatives’ submissions of 20 December 2013 addressed to the Court were accompanied by an undated letter by Mr Gladkikh (the applicant’s second representative). The relevant parts of the letter stated: “... in the beginning of September 2013 I received a phone call on my mobile from a man identifying himself as a relative of my client, Mr Mamazhonov. The man told me [the applicant] was being held in custody in Andizhan and that the criminal case would be sent to trial soon. Due to fears for his safety, he refused to provide me with detailed information on the case...or to state his full name. Furthermore, from a private conversation with an investigator, Mr L., I have learnt that he (the investigator) is preparing to go on a mission to Uzbekistan in order to get statements from Mr Mamazhonov himself concerning the circumstances of the criminal case opened following his disappearance. He further informed me that the statements...would be obtained by officials of the Uzbek law enforcement agencies, and that just he himself would be present during the interview.” 88. On 21 April 2014 the applicant’s representatives informed the Court of the recent developments in the case. In particular, the letter stated: “... The applicant’s lawyer Mr Gladkikh recently received a call from an unknown person...[who stated] that the applicant was currently being detained in Khanabad (Uzbekistan) and that the criminal case against him was about to be handed over to the court. The man also informed me that the applicant’s brother (who was acknowledged as a victim of the crime in the criminal investigation into the applicant’s abduction in Russia) was also currently being detained in Uzbekistan... The applicant’s representatives also pointed out that the initial authorities’ intention to conduct certain investigative measures in Uzbekistan was not realised for unknown reasons. The intention to visit Uzbekistan confirms in itself that the applicant was in Uzbekistan... The detention of the applicant’s brother, Mr R.M. (whose name was mentioned in the request for cooperation of 08.08.2013...) illustrates the reluctance of the Uzbek authorities to provide the Russian investigative authorities with an opportunity to get an independent statement from [him]...” 89. No other information is available to the Court regarding the progress of the criminal investigation. 90. The applicant’s whereabouts are currently unknown. 91. The Government submitted as evidence to the Court a recording from the video surveillance camera placed inside SIZO-3 in Orenburg facing the checkpoint of the detention facility, opposite the only entrance to the building. The recording covers the period between 6.13 and 7 a.m. on 13 June 2013, the day of the applicant’s release. 92. On the recording, at 6.17 a.m. a person identifying himself as Mr Ikromzhon Makhkamovich Mamazhonov is brought before an officer responsible for releasing detainees. He gives the same date and place of birth as those indicated (in paragraph 13) above, and gives an address in Orenburg as his place of residence. He is provided with an identity certificate, and after receiving it at 6.19 a.m. leaves, presumably after being released from the detention centre. 93. The recording of the next forty minutes shows several people approach and pass the checkpoint. 94. At 6.26 a.m. the following fragments of a conversation are audible: “Woman: Permission to enter. ... Man [over the phone]: Where are you? The exit? Alone? ... Woman: ... civilians... Man: Civilians? Woman: No... [he] is in uniform and two civilians...” 95. At 6.43 a.m. a senior officer approaches the checkpoint, presumably from outside the building: “Officer at the checkpoint: Good morning, Sir! Senior officer: Hello! Have you seen anything? Officer at the checkpoint: ... Senior officer: I am asking you if you have seen anything. Officer at the checkpoint: No. Senior officer: OK. I am asking just in case.” 96. On 10 July 2013 the Ministers’ Deputies at the 1176th meeting, having considered the information and documents made available to them by the applicant’s representatives and the Court (see paragraph 11 above), adopted the following decision concerning the applicant’s disappearance: “The Deputies, Recalling the decisions adopted at their 1164th meeting (5-7 March 2013) (DH) and 1172nd meeting (4-6 June 2013) (DH) in the Garabayev group of cases against the Russian Federation, 1. noted with grave concern that a further incident involving allegations of kidnapping and illegal transfer of an applicant protected by an interim measure indicated by the Court under Rule 39 has been reported, this time in the context of the Mamazhonov case; 2. strongly insisted that light be shed on this incident and on the fate of the applicant as quickly as possible; 3. consequently insisted again on the pressing need to adopt as of now measures to ensure an immediate and effective protection of the applicants in a similar situation against kidnappings and irregular removals from the national territory; 4. recalled in this context the letter sent by the Chairman of the Committee of Ministers to the Minister of Foreign Affairs of the Russian Federation; 5. agreed that a draft interim resolution will be considered in the light of progress that would have been made, including the updated action plan submitted by the Russian authorities; this text will be circulated in the draft revised order of business of their 1179th meeting (24-26 September 2013) (DH).” | 1 |
test | 001-148179 | ENG | RUS | COMMITTEE | 2,014 | CASE OF YEREMTSOV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Dmitry Dedov;Erik Møse;Khanlar Hajiyev | 5. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal conviction for drug dealing. 6. The applicants disagreed with their conviction and argued that the police incited them to commit drug-related offences. | 1 |
test | 001-155910 | ENG | ROU | ADMISSIBILITY | 2,015 | RĂILEANU v. ROMANIA | 4 | Inadmissible | Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Iorgu Răileanu, is a Romanian national, who was born in 1959 and lives in Galaţi. He was represented before the Court by Ms N. A. Daghie, a lawyer practising in Galaţi. 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 30 April 2000 the applicant married E.R. On 7 September 2000 their daughter was born. 5. On 11 November 2006 the couple separated and their daughter remained with the mother. The applicant tried to maintain contact with his daughter, but his wife systematically hindered his attempts. 6. On 6 January 2009 the applicant brought proceedings in order to obtain rights of access to his daughter and on 9 June 2009 the Galaţi District Court allowed the request. 7. On 9 December 2009 the District Court’s decision was amended by the Galaţi County Court which established a detailed visiting schedule for the applicant. The county court’s decision became final on 29 April 2010 when the appeals on points of law lodged by the parties were dismissed by the Galaţi Court of Appeal. 8. On 23 November 2010 the couple divorced and the mother was granted custody of the child. The divorce court made no new arrangement for the applicant’s contact rights. 9. According to the applicant, E.R. claimed that their daughter did not want to go with her father and thus systematically refused to open the door when the applicant came to collect the child. 10. On 7 July 2009 the police informed the Galaţi Child Protection Agency (Direcţia Generală de Asistenţă Socială şi Protecţia Copilului Galaţi) about the applicant’s situation. The police became aware of the case as the applicant had lodged a criminal complaint against his wife for failure to respect the visiting schedule. The Child Protection Agency proceeded to assess the situation. 11. On 24 July 2009 the applicant also lodged a complaint with the Child Protection Agency, stating that his wife refused to give him access to the child and was manipulating the child into rejecting him, under threat of punishment. E.R. forbade the child from communicating with her father, sitting close to him, holding hands with him, kissing him or going into his car. The child was to run immediately inside to warn her mother when her father came to see her playing in the yard. 12. The Child Protection Agency started investigating the case. It visited E.R.’s home and appraised the situation. On 30 July 2009 it interviewed E.R. and from August 2009 both parents benefitted from psychological counselling. The Agency advised the mother to help her daughter maintain personal relations with the father. It also organised counselling sessions with the child. On several occasions E.R. refused to bring the child for a psychological evaluation. 13. On 25 September and 23 November 2009 the applicant reiterated his request with the Child Protection Agency and complained that the mother hindered his visiting rights. The Agency counselled the mother regarding respect for the applicant’s visiting rights and advised the applicant to address his complaints with the courts. 14. At the prosecutor’s request, the child underwent a psychological evaluation by the Child Protection Agency. On 8 April 2010 the psychologist rendered her report. She concluded that the child was normally developed but showed signs of having been manipulated by her mother into not expressing any positive feelings towards her father. She advised the mother to encourage the child to maintain her relations with the applicant. 15. On 11 May and 12 June 2010 the parents and child attended two sessions of psychological counselling with the Child Protection Agency where the tense relations between the adults were confirmed. 16. In a new report which was drafted on 27 August 2010, the Agency’s psychologist recommended that both adults undergo parental counselling to help them overcome the conflictual situation, that the mother encourage the child to maintain personal relations with the father and that both parents offer adequate emotional support to their child. 17. On 5 January 2010 the applicant sent his wife a notification through the offices of a bailiff asking her to comply with the court order establishing the visiting rights. He informed E.R. that in case she refused, he would start enforcement proceedings against her. 18. On 20 August 2010 the applicant started proceedings to have the County Court’s decision of 9 December 2009 enforced. On 19 April 2011 the Galaţi District Court dismissed an objection lodged by E.R., and found that she refused to comply with the court order. 19. On 8 September 2010 the bailiff, representative of the Child Protection Agency and the applicant met the child at her home. 20. On an unspecified date in 2010, the applicant lodged a request with the Galaţi District Court seeking to compel E.R. to bring their daughter to counselling. He argued that she was manipulating the child against him which rendered the exercise of his contact rights difficult. 21. The District Court rendered its decision on 2 November 2010. The court observed that, indeed, E.R. had failed to take her daughter to counselling. It reiterated that it was in the child’s best interest to maintain harmonious relations with both her parents. The court ordered E.R. to establish, together with the Child Protection Agency, a weekly counselling schedule for her daughter and to comply with it. 22. E.R.’s appeal against the District Court’s decision was dismissed by the Galaţi County Court on 2 June 2011. The court observed that most of the applicant’s attempts to see his daughter according to the schedule set by court order had failed because of the mother’s opposition or because of the conflicts between the parents, and that the child exhibited signs of being manipulated by her mother against her father. 23. On 12 September 2011 the applicant asked the Child Protection Agency to comply with the above court order of 2 November 2010 and set a timetable for the counselling sessions. On 3 February 2012 E.R. informed the Agency that she had enrolled the child in a counselling programme with the school psychologist and deplored the Agency’s attitude of blaming on her the conflictual situation between the adults. On 18 April 2012 E.R. went to the Agency’s headquarters and invited a team of experts to her home to see that the applicant was there with the child exercising his visiting rights. Two days later she informed the Agency that she accepted counselling for her child. 24. Some counselling sessions were organised between 25 April and 12 July 2012, for both the child and the adults. As the counselling failed to improve the child’s attitude towards her father, it was stopped. In the final report it was noted that the adults manifested hostility, lack of tolerance and respect towards each other and lacked any communication. Counselling for the child was considered futile so long as the parents remained in a conflictual situation. The psychologist recommended family and couple therapy, parental counselling and psychological counselling for the child. 25. In a letter addressed to the Agency on 13 August 2012 the applicant reacted to the conclusions of the report and asked E.R.’s parental rights to be withdrawn. The Agency expressed the view that there was no reason to withdraw E.R.’s parental rights. 26. The applicant lodged a request with the courts to obtain full custody of the child. The proceedings are currently pending. 27. The Agency organised the child’s psychological evaluation with its experts. After four sessions, the psychologist rendered the report. She concluded that the child’s exposure to court proceedings and repeated hearings and evaluations were detrimental to her and could cause emotional suffering. The expert also noted that the child detached herself emotionally from the adults’ problems and through her attitude tried to make them sort out on their own their conflicts. 28. The Agency presented its point of view in the proceedings. It reiterated its earlier assessment that there were no grounds to seek to deprive E.R. of her parental responsibility. It further noted that the child refused to cooperate with the psychologist which rendered the counselling futile. 29. The applicant lodged two criminal complaints against E.R. for noncompliance with a court order. They were both dismissed by the prosecutor’s office attached to the Galaţi District Court (“the prosecutor”) on 8 January 2010 and 25 June 2010 respectively. After hearing the two spouses, the prosecutor observed that the applicant managed to see his daughter occasionally, that on other times the child refused to see her father, or E.R. refused to give him the child, and that starting from March 2010 he had no longer exercised his visiting rights. 30. The applicant continued his attempts to see his child, lodged new criminal complaints against the mother, sought the Child Protection Agency’s assistance, and the mother was fined by the court on 10 April 2012 for failure to respect the court order establishing the visiting schedule. 31. After the fine imposed on the mother on 10 April 2012, she allowed the applicant to see the child, but the latter refused to leave with her father. 32. Several other civil court proceedings have been engaged by the applicant against his former spouse and the Child Protection Agency in order to have the custody arrangements reassessed. The child underwent more psychological evaluations in the process, and the experts considered that the tense situation between the adults led the child to refuse contact with her father, but that she would not oppose seeing him at her home. Consequently, the counselling efforts through experts of the Child Protection Agency continued throughout 2013. 33. The relevant articles from the Family Code and the Code of Civil Procedure, applicable at the time of the facts of the present case, are presented in Nistor v. Romania, no. 14565/05, §§ 50-51, 2 November 2010. | 0 |
test | 001-175159 | ENG | AZE | COMMITTEE | 2,017 | CASE OF ABBAS AND OTHERS v. AZERBAIJAN | 4 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty) | André Potocki;Mārtiņš Mits | 4. The applicants’ dates of birth and places of residence are given in the Appendix. 5. At the material time the first applicant was a chairman of the Sumgait city branch of an opposition party Musavat and the fourth applicant was a deputy chairman of the Goychay district branch of that party. The third applicant was a member of another opposition party, the Popular Front Party of Azerbaijan. The second applicant was a member of the Coordination Council of an opposition group İctimai Palata. According to the applicants, they participated in a number of peaceful demonstrations organised by the opposition. 6. The number of opposition demonstrations increased in 2011. That tendency continued into the following years. Demonstrations were held, inter alia, on 2 April and 17 April 2011 and 20 October 2012. 7. The second applicant attended the demonstration of 2 April 2011. The first and third applicants attended the demonstration of 17 April 2011. According to the first applicant, he also intended to participate in the demonstration of 20 October 2012. 8. Prior to those demonstrations, on 18 March 2011, 11 April 2011 and 15 October 2012 respectively the organisers had given notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). 9. The BCEA refused to authorise those demonstrations at the places indicated by the organisers and proposed a different location on the outskirts of Baku – the grounds of a driving school situated in the 20th residential area of the Sabail District. 10. The organisers nevertheless decided to hold the demonstrations as planned. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants were demanding democratic reforms in the country and free and fair elections, and protesting against impediments on freedom of assembly. 11. The fourth applicant was one of the organisers of a rally planned by several opposition parties. The rally was to be held on 18 October 2011 in Goychay. The fourth applicant also intended to participate in that assembly. 12. According to the fourth applicant, prior to the rally of 18 October 2011, on 9 October 2011, he and the other organisers gave notice to the relevant authority, the Goychay District Executive Authority (“the GDEA”). The information about the rally was sent to the GDEA by post and the fourth applicant’s home address was indicated (for reference) as the address of the sender. 13. According to the fourth applicant, the rally was intended to be peaceful. Its purpose was to mark the twentieth anniversary of the Independence Day and to honour the memory of those buried in the Cemetery of Martyrs in the town of Goychay. 14. It appears that eventually the rally did not take place. 15. As mentioned above, the demonstration of 2 April 2011 was attended by the second applicant; the demonstration of 17 April 2011 was attended by the first and third applicants. However, the police began to disperse those demonstrations as soon as the protesters began to gather. 16. The circumstances related to the dispersal of the demonstrations of 2 April and 17 April 2011, the first, second and third applicants’ arrests and custody, and subsequent administrative proceedings against them are similar to those in Gafgaz Mammadov v. Azerbaijan (no. 60259/11, 15 October 2015) (see also Appendix). 17. The circumstances of the fourth and first applicants’ arrests on 15 October 2011 and 20 October 2012 respectively, their custody and subsequent administrative proceedings against them are similar to those in Huseynli and Others v. Azerbaijan (nos. 67360/11 and 2 others, 11 February 2016) (see also Appendix). 18. According to the first and third applicants, after being arrested during the dispersal of the demonstration of 17 April 2011 and brought to a police station, they were subjected to ill-treatment by the deputy chief of the Nasimi District Police Office, police officer S.N. 19. In a photograph, submitted to the Court by the first applicant and allegedly taken after his police custody, he is shown with a bruise on his forehead. In the other photograph, allegedly taken before his police custody, the first applicant is shown without any bruising on his forehead. 20. The third applicant submitted to the Court a medical report of 18 April 2011 confirming that he had a broken rib. According to the third applicant, that medical report was issued when he was taken to a hospital after his trial, before he was placed in a detention facility to serve his sentence. He also submitted a photograph in which he is shown with bruises on his body. 21. The applicants raised their ill-treatment complaints during the administrative proceedings following their arrest on 17 April 2011. Namely, in their appeals against the first-instance court’s decisions the applicants complained that they had been ill-treated during their police custody, and requested the Baku Court of Appeal to order a forensic examination of their injuries, to question particular witnesses and to obtain the review of the medical records drawn up at their check-in to a detention facility where they had served their sentence. 22. On 21 April and 4 May 2011 respectively the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the firstinstance court (see Appendix). The appellate court disregarded the applicants’ ill-treatment complaints and their requests related to those complaints. 23. On an unspecified date the applicants lodged a complaint before the General Prosecutor’s Office asking it to conduct an investigation into the alleged ill-treatment. 24. On unspecified dates, the applicants were summoned to the Nasimi District prosecutor’s office and questioned in connection with their complaint of ill-treatment. 25. On 23 May and 2 July 2011 investigator M.H. adopted decisions refusing to open criminal proceedings into allegations of ill-treatment in respect of the third and first applicants respectively. 26. According to the applicants, for a certain period of time neither they nor their lawyer were informed about any actions taken by the authorities to investigate their ill-treatment complaints. Only in January 2012, after making enquiries about the outcome of the investigation, did they manage to obtain copies of the investigator’s above-mentioned decisions. 27. The applicants did not lodge a complaint with a supervising court against those decisions. | 1 |
test | 001-147503 | ENG | RUS | ADMISSIBILITY | 2,014 | MUSAYEV v. RUSSIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 1. The applicant, Mr Ibragim Khasan Ogly Musayev, is an Azerbaijani national, who was born in 1992 and lived in Shopsha, Yaroslavl Region. He was represented before the Court by Ms O.A. Sadovskaya, a lawyer practising in Nizhniy Novgorod. The Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The Azerbaijani Government were represented by their Agent, Mr Ç. Asgarov. 2. On 11 September 2013 the President of the Section decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of the Russian Federation, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Azerbaijan until further notice. The President of the Section also decided to request the Governments of the Russian Federation and Azerbaijan, under Rule 54 § 2 (a) of the Rules of Court, to submit factual information regarding the extradition proceedings, the criminal prosecution of the applicant in Azerbaijan and his alleged employment by the Ministry of National Security of the Autonomous Republic of Nakhchivan (“the MNS”). 3. and the Governments of the Russian Federation and Azerbaijan, may be summarised as follows. 4. On 2 September 2012 the applicant left Azerbaijan and travelled to the Russian Federation to live with his father in the village of Shopsha, Yaroslavl Region. 5. On 26 November 2012 notification was sent to the applicant in Azerbaijan that he was being drafted into the armed forces. His relatives informed the authorities that he had moved to Russia. In response, on 3 December 2012 the Nakhchivan city department of the State Service for Mobilisation and Military Draft of the Nakhchivan Autonomous Republic requested the police and prosecution authorities to search for the applicant. 6. On 14 December 2012 the Nakhchivan City Prosecutor’s Office instituted criminal proceedings against the applicant on charges of fraud and misappropriation. According to the investigation, the crimes had been committed in July 2012 against a restaurant and a private individual. The proceeds of the crime totalled some 2,000 euros (EUR). 7. On the same day an investigator at the Nakhchivan City Prosecutor’s Office ordered the applicant’s search and arrest for the purpose of serving an indictment on him. 8. On 25 December 2012, at the request of the Nakhchivan City Prosecutor, the Nakhchivan City Court ordered the applicant’s arrest and two months’ detention from the date of his apprehension. 9. On an unspecified date in December 2012 the applicant told the Azerbaijani media that he was a former agent of the MNS, that he had witnessed the torture of Mr T.Z. on the premises of the MNS in Nakhchivan from 24 to 27 August 2011, and that Mr T.Z. had died as a result of torture. In this connection, he gave the names of the senior officials of the MNS who had allegedly tortured that person. 10. On 8 January 2013 the criminal case against the applicant was suspended pending his arrest. 11. In December 2012 the applicant moved from the Yaroslavl Region to Moscow for the purpose of requesting asylum. 12. On 16 January 2013 the applicant applied for asylum to the Moscow Department of the Federal Migration Service (“the MD FMS”). His statements to the immigration authorities and the media contained the following allegations: 13. On 21 January 2013 the applicant received notification from the MD FMS that his asylum request had been accepted for consideration. Subsequently, he left Moscow and went to the Yaroslavl Region without notifying the immigration authorities. The Moscow address which he had provided to the MD FMS was later discovered to be false. 14. On 6 February 2013 the applicant was arrested by the lawenforcement authorities in the Yaroslavl Region on the basis of the search-and-arrest warrant issued in Azerbaijan. 15. On 21 April 2013, having considered the merits of the applicant’s asylum request, the MD FMS decided to refuse it. The relevant parts of the decision read as follows: “Musayev Ibragim substantiated his request by claiming that his life had been threatened by the MNS of Azerbaijan. He confirmed his identity by [presenting his Azerbaijani passport] ... He refused to provide his military service identification card, stating that it was ‘a state secret’... Musayev I.G. reasoned the existence of a threat to his life ... by the fact that he had refused to comply with an order issued by the MNS to kill a person ... [He stated that] between 2010 and 2012 he had worked as a secret agent for the MNS. He refused to answer the question whether he had followed any secret service training in the MNS, since it was ‘a state secret’. Musayev Ibragim stated that ... as a result of his failure to comply with an order to ‘kill a person’ he had started to receive threats personally from the Minister of National Security ... [and] that to save his life he had fled to Russia ... [In Russia] he had started receiving further threats ... and four to five times he had been offered a monetary reward of [EUR 95,000 to EUR 380,000] for his ‘silence’ and keeping the state secret. ... The analysis of Musayev Ibragim’s personal file demonstrates that the reason which triggered his departure from his home country and his unwillingness to return was not a threat to his life from the MNS, but a real fear of arrest for fraud. The statements of the applicant are contradictory. Musayev Ibragim ... was not a member of any political, civic or religious association in Azerbaijan, and was never persecuted on ethnic grounds. His employment by the MNS is not proven by any documents. During the check of his declared place of residence in Moscow ... [it had proven to be non-existent] and this fact demonstrates the lack of sincerity in the applicant’s statements ... The circumstances mentioned above prove that there are no reasonable grounds to believe that Musayev Ibragim would be a victim of persecution in Azerbaijan ...”. The decision also contained an extensive section analysing the international human-rights obligations of Azerbaijan, its human-rights record as reported by NGOs and the Commissioner for Human Rights of the Council of Europe, reports on the ethnic, social and economic situation in the country, as well as migration dynamics. 16. The applicant’s representative, Mr S., complained against the decision to the Federal Migration Service (“the FMS”). The complaint stated that the regional immigration authorities had failed to consider two facts: first, that the applicant had left Azerbaijan before the institution of criminal proceedings against him; and secondly, that given the reports of human-rights organisations about the practice of torture and other human-rights violations in Azerbaijan, the applicant would be exposed to those risks, especially in view of the political nature of his prosecution. 17. On 4 July 2013 the FMS issued decision No. 1198 upholding the decision of the regional authorities. The relevant parts read as follows: “It must be observed that the applicant’s statement that the reason for his presence in Russia is to seek asylum is not corroborated by the facts ... After arriving on 2 September 2013 he did not lodge his request until January 2013 after the period of his lawful stay [in Russia] had expired. Publications on the internet signed by him started to appear only in November 2012 (after leaving Azerbaijan and at the end of the period of lawful stay in Russia). The asylum seeker claims that he was an agent of the MNS, but does not provide any supporting documents and only refers to information on the internet as proof. The claim that since the spring of 2011 he has been persecuted by the leadership of the MNS as a result of his refusal to kill a woman ... has also not been proved. In the spring of 2011 he ... obtained a passport in his name for travelling abroad ... and until his arrival in Russia in September 2012 he repeatedly travelled outside Azerbaijan, including a trip to Iran in August 2012 with his wife. From Iran he returned with his wife to Azerbaijan, despite his allegation that his life was threatened there ... [and only one month] later left for Russia. The analysis of the decision by the MD FMS, the case file, the allegations of the asylum seeker, and information of the FMS and the Ministry of Foreign Affairs on the situation in Azerbaijan demonstrate that ... there are no reasonable grounds for [Mr Musayev’s] alleged fear of persecution in Azerbaijan.” 18. On 8 August 2013 the applicant’s representative, Mr S., appealed against the above decisions to the Zamoskvoretskiy District Court of Moscow. Neither the applicant nor his representative informed the Court about the outcome of the appeal. 19. On 12 February 2013 the Deputy Prosecutor General of Azerbaijan forwarded to the Russian authorities an extradition request in respect of the applicant. The relevant parts of the request read as follows: “We guarantee that in accordance with international law Musayev I.G. will be provided in Azerbaijan with all the facilities for defence, including the services a of defence counsel, he will not be tortured or subjected to any inhuman or degrading treatment or punishment (Article 3 of the European Convention, and relevant conventions of the UN and the Council of Europe). The Prosecutor General of Azerbaijan guarantees that the extradition request has not been lodged with the aim of persecuting [the applicant] on political, racial, religious or ethnic grounds. The Prosecutor General of Azerbaijan guarantees that in accordance with Article 66 of the Convention on legal cooperation and relations in civil, family and criminal matters of 22 January 1993 Musayev I.G. would be prosecuted only for the crime which served as the basis for this extradition request, and after his trial or, in case of conviction, after serving his sentence he would be free to leave Azerbaijan. Musayev I.G. will not be extradited, expelled or transferred to any other State without the consent of the Russian competent authorities”. 20. On 23 July 2013 the Deputy Prosecutor General of the Russian Federation authorised the applicant’s extradition, stating that there were no obstacles to it under international law and Russian legislation. 21. The applicant’s representative, Mr S., challenged the authorisation in court. The complaint stated that the asylum proceedings were still pending and that the criminal prosecution of the applicant had a political nature, because he “engages in human rights defence and reveals facts of human rights violations in Azerbaijan”. 22. On 6 August 2013 the applicant was released from detention on his own recognisance and immediately fled from his last known place of residence in Russia. According to the statements of his relatives and representatives, the applicant avoided any contact with the law-enforcement authorities. 23. On 2 September 2013 the Yaroslavl Regional Court considered the complaint against the extradition authorisation in the absence of the applicant, who had avoided any contact with the Russian authorities. The Regional Court upheld the authorisation. The relevant parts of the judgment read as follows: “The defence counsel Mr S. stated in court that there were no reasons to extradite Musayev I.G., who had been persecuted by officers of the Ministry of National Security of Azerbaijan on political grounds ... In the event of extradition the police of the Nakhichevan Autonomous Republic would subject Musayev to violence and torture ... The defence witness Mr M. stated that his son ... had started living with him in the village of Shopsha, Yaroslavl Region in August 2012, and that according to [an unidentified] colonel of the MNS his son was an agent of the security services ... The prosecution stated that the complaint should be dismissed, since all the arguments of the defence had been refuted during the extradition check ... [T]he court considers the extradition authorisation ... to be reasonable and lawful ... The arguments of the defence counsel that the asylum proceedings are not yet finished are erroneous. ... The case materials demonstrate that the decision of the Federal Migration Service [to refuse asylum] of 21 April 2013 was considered lawful and upheld on appeal on 4 July 2013 ... The opinion of the complainant that Musayev I.G. must not be extradited to another State, since his criminal prosecution is of a political nature is arbitrary. The case file contains no evidence proving that Musayev I.G. was employed by the Ministry of National Security, any political party or human rights organisation. The statements of Musayev and his father that [the applicant] is being persecuted as a former agent of the MNS are unsubstantiated. The extradition request of the Prosecutor General of Azerbaijan guarantees that he will not be subjected to torture, inhuman or degrading treatment or punishment and that the request does not pursue any political motives ... The court examined the materials submitted by the defence counsel about possible human rights violations in the Nakhichevan Autonomous Republic. Having regard to the generally positive situation regarding respect for human rights in the State seeking extradition, the specific circumstances of the present case and the guarantees of the Azerbaijani authorities, the court does not consider that there are any reasonable grounds to believe that [the applicant would be subjected to torture, inhuman or degrading treatment]”. 24. The applicant’s representative allegedly appealed against the judgment to the Supreme Court of the Russian Federation. However, neither the applicant nor his representative informed the Court about the outcome of that appeal. 25. On 3 October 2013 the Government of the Russian Federation informed the Court that they were not aware of any documents proving the applicant’s employment by, or any other cooperation with, the MNS of the Nakhichevan Autonomous Republic. They highlighted the fact that the extradition request did not contain such information either. 26. On 7 October 2013 the Government of Azerbaijan stated to the Court that the applicant had never been an employee of the MNS and had not cooperated with it in any other form. 27. The Government of Azerbaijan also stated that the criminal investigation into the death of Mr T.Z. had been conducted by the Nakhichevan City Prosecutor’s Office, but that the applicant had no relation to the case or the investigation. 28. In support of the applicant’s account of events his representative submitted to the Court several letters and statements of human-rights activists and non-governmental organisations. 29. The statement of 12 April 2013 by the Human Rights House Foundation urged the Court to stay the applicant’s extradition to Azerbaijan in view of the risk of ill-treatment. The statement does not contain any specific information on the applicant’s case, but provides a summary of international reports on the situation in Azerbaijan in general and in the Nakhichevan Autonomous Republic in particular. 30. In a letter of 3 June 2013 Ms Malahat Nasibova, a well-known human-rights activist and president of the Democracy and NGO Development Resource Centre, an NGO based in Nakhichevan, asked the Russian authorities not to extradite the applicant to Azerbaijan, alleging that he had been involved in the case of Mr T.Z. and risked “serious punishment” by the authorities. 31. In a letter of 23 August 2013 the lawyer of the deceased Mr T.Z. stated that the applicant, according to his statements, was a “key witness” to Mr T.Z.’s death and that he had been forced to leave Azerbaijan under pressure from the authorities. | 0 |
test | 001-142270 | ENG | LVA | GRANDCHAMBER | 2,014 | CASE OF VISTIŅŠ AND PEREPJOLKINS v. LATVIA | 1 | Pecuniary damage - award (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage) | András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Ján Šikuta;Julia Laffranque;Karel Jungwiert;Kristina Pardalos;Lech Garlicki;Linos-Alexandre Sicilianos;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen | 6. At the time of the expropriation of the applicants’ land, the cadastral value of real estate within the perimeter of a town or city was determined in accordance with regulation no. 94 of 12 April 1994 concerning the valuation of urban land (Noteikumi “Par pilsētu zemes vērtēšanu”), which was in force until 12 June 1998. To the extent that it is pertinent in the present case, the preamble to the text contained the following definitions: “... Cadastral value of a plot of land – the urban-planning and economic value of a plot of land, formulated in pecuniary terms. ... Model value of a plot of land [zemes paraugvērtība] – maximum value of a square metre of urban land situated in a value zone [vērtību zona] for the purposes of its exploitation for a specific aim. De facto model value of a plot of land [zemes faktiskā paraugvērtība] – maximum value of a square metre of urban land situated in a specific territory of a value zone [vērtību zona] for the purposes of its exploitation for a specific aim. ... Value zone – a portion of urban territory corresponding to a constant set of data characterising the value of real estate. ...” 7. Article 5 stipulated that the regulation was inapplicable to the determination of the market value of urban land. For the purposes of valuation, urban territory was to be divided into value zones based on the general land-use plan. The capital, Riga, was to be divided into seven or more zones (Article 7). Under Article 8, the main zoning criteria were as follows: “... 1. position [of land] in relation to the city centre; 2. level of development of public-works infrastructure and social services; 3. attractiveness of territory; 4. ecological conditions and consequences of negative factors; 5. local geological conditions; ...” 8. Article 24 of the regulation laid down the methodology for the calculation of the model value (paraugvērtība) of a plot of land. For cities such as Riga, the model value did not have to be specially calculated because it corresponded to a scale in annex no. 2 to the regulation. In order to establish the de facto model value (faktiskā paraugvērtība), it was necessary to calculate the difference between the model value of the zone in question and the adjacent zone, multiply it by the distance from the next zone, then divide the result by the width of the zone in question, and, lastly, add the corresponding model value from the fixed scale (Article 25). The de facto model value then had to be adjusted to take account of any buildings erected on the land (Article 26). 9. The de facto model value had to be multiplied by the surface area of the plot of land for its cadastral value to be obtained. It was then subject to adjustment within a limit of 20% to take account of certain positive or negative factors (Articles 30-34). The calculation of the cadastral value of land was the responsibility of the State Land Authority (Valsts Zemes dienests). 10. The relevant provisions of the Civil Code (Civillikums) read as follows: “Where the contract provides for the payment of interest, its percentage shall be fixed, failing which it shall be presumed that the statutory rate (see Article 1765) has been tacitly agreed.” “The interest rate shall be clearly established in the deed or contract. Failing that, as in cases where the payment of statutory interest is required by law, the rate shall be six per cent per annum. Interest may be calculated only on the capital itself. However, should the interest not be paid within the allotted time in respect of one year or more, from that time onwards, at the creditor’s request, statutory interest shall be calculated on the interest then accruing”. “The interest rate shall be clearly established in the deed or contract. Failing that, as in cases where statutory interest is required by law, the rate shall be six per cent per annum. The interest rate for late payment of a pecuniary debt provided for under a contract as consideration for the delivery or purchase of a good or service, shall be eight per cent [“seven per cent” before 26 June 2013] above the base rate (Article 1765, third paragraph) per annum; as to contractual relations to which a consumer is party, [the base rate shall be] six per cent per annum. The interest base rate shall be four per cent. The said rate shall be modified on 1 January and 1 July every year by the percentage corresponding to the increase or decrease in the most recent rate fixed for refinancing operations by the Bank of Latvia before the first day of the half-year in question. After 1 January and 1 July every year, the Bank of Latvia shall immediately publish in the [Official Gazette] information on the applicable interest rate for the coming half-year. Interest may be calculated only on the capital itself. However, should the interest not be paid within the allotted time in respect of one year or more, from that time onwards, at the creditor’s request, statutory interest shall be calculated on the interest then accruing.” “The interest shall cease to increase: 1. when the amount of the interest still unpaid reaches the amount of the capital; ...” 11. According to the calculator of inflation rates of the Latvian Central Bureau for Statistics (Centrālā Statistikas pārvalde), the rate of inflation between 25 November 1997 (date of the entry into force of the relevant law on expropriation; see paragraphs 23 and 54 of the principal judgment) and 25 October 2012 (date of the principal judgment) was 94.3%. | 0 |
test | 001-145228 | ENG | UKR | CHAMBER | 2,014 | CASE OF MALA v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 5. The applicant was born in 1968 and lives in Zaporizhzhya. 6. On 4 January 1994 the Leninskyy District Court of Zaporizhzhya ordered the applicant’s former husband, S., to pay her child maintenance in respect of their daughter, who was living with the applicant. 7. According to a bailiff’s report of 24 January 2006, the outstanding arrears to the applicant at that date were 7,546 Ukrainian hryvnias ((UAH), at the time equivalent to about 1,200 euros (EUR)), of which UAH 2,052 (about EUR 330) was owed for 2005. The bailiff’s calculations were based on the average salary indicators in the district where S. lived, since he had been unemployed at the time. 8. On 1 April 2006 the same bailiff issued a fresh report, assessing the total amount of the arrears at 31 March 2006 at UAH 667.50. The sum owed for 2005 was assessed at UAH 480. The bailiff recalculated the earlier established amount on the basis of a tax return submitted by the applicant’s ex-husband for the last quarter of 2005, which showed that he had earned UAH 3,000 for that period. Viewed as his actual earnings for the whole year, that amount was lower than the average salary, which would have otherwise been taken as a basis for the arrears’ calculation. 9. On 4 April 2006 the report of 1 April 2006 was served on the applicant, who had ten days to challenge it. 10. On 11 April 2006 the applicant sought to challenge the accuracy of the report before the Khortytskyy District Court of Zaporizhzhya (“the Khortytskyy Court”). 11. On 24 May 2006 the Khortytskyy Court allowed her application and invalidated the impugned report as erroneous. It concluded that the bailiff had had no reasons to depart from the earlier calculation, since the tax return submitted by S. concerned only the last quarter of 2005. In the absence of any appeal, the ruling became final. 12. On 6 June 2006 the bailiff issued another report, according to which the outstanding child maintenance arrears owed to the applicant at that date were UAH 7,671 Ukrainian hryvnias, of which UAH 2,358 was owed for 2005. 13. On 29 June 2006 the bailiff reassessed the arrears owed by S. to the applicant, concluding that they were UAH 6,606 at 1 June 2006 (as S. had made some payments during that year), of which UAH 2,358 was owed for 2005. 14. On 19 October 2006 the Bailiffs’ Service terminated the child maintenance enforcement proceedings because on 2 October of that year the applicant’s daughter had reached the age of majority. The bailiff assessed the outstanding arrears at 2 October 2006 at UAH 8,637.32 (equivalent to about EUR 1,300 at that time); the sum owed for 2005 remained unchanged (UAH 2,358, equivalent to about EUR 330). Neither the applicant nor her former husband challenged this assessment. 15. On 26 January 2006 the applicant lodged a civil claim against S. for penalties to be imposed on him for late child maintenance payments. She relied on the bailiff’s report of 24 January 2006 (see paragraph 7 above). 16. On 16 March 2006 the court adjourned its hearing on the applicant’s request with a view to summoning the bailiff who had issued the aforementioned report. S. did not object to that, but submitted that he had requested recalculation of the arrears owed to the applicant. 17. On 3 April 2006 the Khortytskyy Court allowed the applicant’s claim in part and awarded her UAH 141.58 (about EUR 22) in penalties to be paid by her former husband. It based its calculation, in so far as the arrears for 2005 were concerned, on the bailiff’s report of 1 April 2006 (see paragraph 8 above), which had been presented by the bailiff at the hearing on 3 April 2006. Having regard to the bailiff’s explanations as to the reasons for the recalculation, the court held that the aforementioned report took precedence over the report of 24 January 2006 relied on by the applicant. According to the minutes of the hearing, the applicant did not object to the completion of the examination of the case on the merits, but insisted that the court should rely on the report adduced by her. 18. On 12 April 2006 the applicant appealed, claiming that the court had wrongly relied on the report of 1 April 2006, which she had only become aware of on 3 April, the day the court had given judgment. She further pointed out that the report in question had not been formally served on her until the following day (4 April 2006) and that she had challenged it in accordance with the established procedure (see paragraphs 9 and 10 above). 19. On 23 May 2006 the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) upheld the Khortytskyy Court’s decision of 3 April 2006. It held, without giving further details, that the first-instance court had rightly relied on the bailiff’s report of 1 April 2006. 20. The applicant appealed in cassation for the decisions of 3 April and 23 May 2006 to be quashed and a fresh examination of the case to be carried out. She complained that the courts had disregarded, without any explanation, the key piece of evidence adduced by her – the bailiff’s report of 24 January 2006. It had not been challenged by any of the parties and was final. She reiterated the arguments of her appeal as regards the bailiff’s report of 1 April 2006 (see paragraph 18 above), pointing out that her complaint about that report had been successful and that it had been invalidated on 24 May 2006. 21. On 21 November 2006 the Supreme Court, sitting in a single-judge formation, rejected her request for leave to appeal in cassation. Its reasoning was limited to a statement that the cassation appeal was unfounded, and that its arguments did not warrant any verification of the case file materials in accordance with Article 328 § 3 of the Code of Civil Procedure (see paragraph 29 below). 22. On 21 November 2006 the applicant lodged with the Khortytskyy Court a civil claim against her former husband, seeking recovery of the child maintenance arrears as assessed by the bailiff on 19 October 2006 (see paragraph 14 above), with an inflationary adjustment and additional penalties. 23. On 22 January 2007 the court found against the applicant. It held that the Bailiffs’ Service had already determined the outstanding arrears S. had to pay (UAH 8,637.32 – see paragraph 14 above), and that the applicant was not entitled to any further indexation or penalties. 24. Following an appeal by the applicant, on 26 April 2007 the Court of Appeal quashed that decision and ordered the applicant’s former husband to pay her UAH 4,964 in arrears (equivalent to about EUR 740). As regards the arrears owed for 2005, it relied on the Khortytskyy Court’s decision of 3 April 2006 based on the bailiff’s report of 1 April 2006 (see paragraphs 8 and 17 above). 25. The applicant appealed in cassation. She argued that the final amount of outstanding child maintenance arrears owed to her by S. at 2 October 2006 was UAH 8,637.32 (equivalent to about EUR 1,290). The applicant emphasised that none of the parties had ever challenged the accuracy of that calculation. The appellate court had nevertheless chosen to rely on the bailiff’s earlier report of 1 April 2006, which had been invalidated by the Khortytskyy Court on 24 May 2006 after she complained. 26. On 19 July 2007 the Supreme Court, sitting in a single-judge formation, rejected her request for leave to appeal in cassation. Its reasoning was identical to that given in the ruling of 21 November 2006 (see paragraph 21 above). 27. On 28 April 2006 the applicant lodged a civil claim with the Khortytskyy Court, seeking an increase of the child maintenance to be paid by her former husband from that date onwards. 28. On 20 June 2006 the court allowed her claim in part and assessed the amount of monthly child maintenance at UAH 165, to be paid from 3 May until 2 October of that year, the date their daughter reached the age of majority. No appeal was lodged and the decision became final. | 1 |
test | 001-183122 | ENG | HRV | CHAMBER | 2,018 | CASE OF BIKIĆ v. CROATIA | 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) | Jon Fridrik Kjølbro;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1954 and lives in Zagreb. 6. In the former Yugoslav socialist regime all employees contributed to housing funds. The funds thus obtained were used, inter alia, to build blocks of flats. The flats were distributed to employees, who acquired protected tenancies in respect of them and other already existing socially owned flats. Each publicly owned company drew up a list of persons to be granted specially protected tenancies. When a person on such a list was granted a specially protected tenancy, his or her housing needs were considered to have been met and his or her name would be removed from the list. 7. The applicant was employed by a socially owned company, S. All employees of S. paid contributions to a housing fund in the amount of 3% of their monthly salaries. 8. On 31 October 1988 company S. granted the applicant a specially protected tenancy of a flat measuring 65.08 square metres in the Zagreb suburbs, with the right to occupy it together with her husband and two daughters. However, since that decision was not yet final, company S. entered into an agreement with the applicant on 7 December 1988 giving her the right to move into the flat with her family and to care for that flat. The applicant moved into the flat and has been living there ever since. 9. The decision to grant the applicant a specially protected tenancy was challenged by three other employees and quashed by the Zagreb Basic Court of Associated Labour (Osnovni sud udruženog rada u Zagrebu). 10. On 27 March 1990 the housing committee of company S. drew up a priority list for the distribution of flats. The applicant was the first on the list. On 23 April 1990 the company’s workers’ council approved the priority list. On the basis of that list she was entitled to have a decision allocating a flat to her issued. On 27 April 1992 the flats of the company S. were transferred for management to the Zagreb Municipality. 11. On 9 and 15 May 1990, respectively, two other employees of company S. brought an action before the competent court, seeking to have the priority list declared null and void. Competence in the matter was subsequently transferred to the Zagreb Municipal Court, which on 3 February 1999 dismissed the claims on the merits since there was no possibility under the relevant law to bring such an action at all. A civil action could be brought to challenge the decision on allocation of a flat but not to challenge a priority list. 12. On 23 June 2004 the Zagreb County Court amended the judgment of 3 February 1999 so as to declare the actions inadmissible on the same grounds, namely that the priority list could not be challenged before a court of law. 13. Meanwhile, on 3 June 1991 Parliament had enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which abolished the specially protected tenancies and regulated the sale of socially owned flats previously let under a specially protected tenancy. 14. On 29 November 1995 the applicant asked the Zagreb Municipality as the owner of the flat to conclude a contract for the sale of the flat with herself as the buyer. The Zagreb Municipality did not take any decision within the prescribed time-limit of sixty days. 15. On an unspecified date in 2005 the applicant re-submitted to the Zagreb Municipality her request to purchase the flat she occupied. The request was refused on 6 July 2005 because she had not been granted a specially protected tenancy in respect of that flat. 16. On 26 September 2005 the applicant brought a civil action against the City of Zagreb, which in the meantime had become the owner of the flat she occupied, seeking a judgment in lieu of the contract of sale of the flat in question. 17. The claim was dismissed by the Zagreb Municipal Court on 18 June 2007 on the grounds that the applicant had not acquired a protected tenancy of the flat in question, since the priority list did not constitute a decision on the granting of protected tenancies within the meaning of the Housing Act. 18. The judgment was upheld by the Zagreb County Court on 8 April 2008. The court held that the applicant did not have a final decision on allocation of the flat to her. 19. In a subsequent constitutional complaint lodged by the applicant, she complained that her right to equality before the law, her right to an appeal as well as her right to a fair trial had been violated. She argued that she had been the first on a priority list drawn up by company S. for the distribution of flats. The only reasons she had not been formally granted a specially protected tenancy of the flat she had been occupying were the challenge of the priority list by her co-workers and the delay in the civil proceedings before the Zagreb Municipal Court. However, once those proceedings had ended, all of the conditions for recognition of her specially protected tenancy of the flat at issue had been met. The one-year validity of the priority list was to be counted from the date of its being confirmed, which in the applicant’s case had occurred when the national courts had dismissed all the objections concerning that list. By not recognising her right to a specially protected tenancy, the national authorities had deprived her of the possibility to purchase the flat she occupied under favourable conditions. She also relied on some other decisions of the Constitutional Court whereby it had granted protection to persons in situations comparable to her own. 20. On 11 May 2012 the Constitutional Court dismissed the applicant’s constitutional complaint on the grounds that the findings of the lower courts that she had not acquired a specially protected tenancy of the flat at issue had been correct. It further held that the decisions the applicant had relied on concerned persons who had had specially protected tenancies which they had subsequently lost. | 0 |
test | 001-159188 | ENG | TUR | CHAMBER | 2,015 | CASE OF CENGİZ AND OTHERS v. TURKEY | 1 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart ideas;Freedom to impart information;Freedom to receive ideas;Freedom to receive information);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković | 5. Mr Cengiz was born in 1974 and lives in İzmir. He is a lecturer at the Law Faculty of İzmir University and is an expert and legal practitioner in the field of freedom of expression. Mr Akdeniz and Mr Altıparmak were born in 1968 and 1973 respectively. Mr Akdeniz is a professor of law at the Law Faculty of Bilgi University. Mr Altıparmak is an assistant professor of law at the Political Science Faculty of Ankara University and director of the university’s Human Rights Centre. 6. YouTube (http://www.youtube.com) is the leading video-hosting website on which users can upload, view and share videos. Most videos on the site or on YouTube channels can be viewed by any Internet users, but only users with a YouTube account may upload video files. The platform is available in more than seventy-six countries. Over one billion users visit the site each month, viewing more than six billion hours of videos. 7. On 5 May 2008, under section 8(1)(b), (2), (3) and (9) of Law no. 5651 on regulating Internet publications and combating Internet offences (“Law no. 5651”), the Ankara Criminal Court of First Instance made an order for the blocking of access to the website http://www.youtube.com and the IP addresses 208.65.153.238-208.65.153.251 providing access to the website. The court held, among other things, that the content of ten pages on the website (ten video files) infringed Law no. 5816 prohibiting insults to the memory of Atatürk. 8. On 21 May 2010 the first applicant lodged an objection against the blocking order of 5 May 2008. Relying on his right to freedom to receive and impart information and ideas, he sought to have the order set aside. 9. On 31 May 2010 the second and third applicants, as YouTube users, also lodged an objection against the blocking order of 5 May 2008. They sought to have the order set aside, arguing that there was a public interest in having access to YouTube and that the blocking of such access seriously impaired the very essence of their right to freedom to receive information and ideas. They also submitted that six of the ten pages to which the order of 5 May 2008 related had already been deleted and that the other four were no longer accessible from inside Turkey. This meant, in their submission, that the blocking order had become devoid of all purpose and constituted a disproportionate restriction on the rights of Internet users to receive and impart information and ideas. 10. On 9 June 2010 the Ankara Criminal Court of First Instance dismissed the applicants’ objection, holding in particular that the blocking order complied with the requirements of the legislation. Addressing the inaccessibility of the video files from inside Turkey, it stated that while access to the files had indeed been blocked by YouTube within Turkey, the videos in question had nevertheless not been removed from the website’s database and thus remained accessible to Internet users worldwide. It also held that as they had not been parties to the investigation procedure, the applicants did not have locus standi to challenge such orders. Lastly, the court noted that an objection against the same blocking order had already been dismissed on 4 June 2008. 11. On 2 July 2010 the Ankara Criminal Court upheld the decision of 9 June 2010 of the Ankara Criminal Court of First Instance, holding that it had complied with the procedural rules and fell within the court’s discretion. 12. On 17 June 2010 the Ankara Criminal Court of First Instance adopted a further decision concerning YouTube, ordering the blocking of access to the website http://www.youtube.com and forty-four other IP addresses belonging to the site. 13. On 23 June 2010 the second and third applicants lodged an objection against the additional blocking order of 17 June 2010. 14. On 1 July 2010 the Ankara Criminal Court of First Instance dismissed the objection lodged by those two applicants and by representatives of YouTube and the Internet Technology Association. Addressing the inaccessibility of the video files from inside Turkey, it reiterated that while access to the files had indeed been blocked by YouTube within Turkey, the videos in question had nevertheless not been removed from the website’s database and thus remained accessible to Internet users worldwide. It also held that as they were not parties to the case, the applicants did not have locus standi to challenge such orders. It added that, given that the website in question had continued to infringe the law by remaining active, the blocking order was compatible with the requirements of the legislation. Lastly, it rejected the argument that the provision applied in the present case was unconstitutional. 15. In the judgment of 2 July 2010 referred to above (see paragraph 11), the Ankara Criminal Court also upheld the decision of 1 July 2010 of the Ankara Criminal Court of First Instance. 16. The Government indicated that in the period before and after the order blocking access to YouTube, between 23 November 2007 and 1 July 2009, 1,785 complaints had been made to the Telecommunications and Information Technology Directorate (“the TİB”) to the effect that YouTube was hosting content that was illegal under Law no. 5651, in particular concerning sexual abuse of minors and insults to the memory of Atatürk. 17. The Government also stated that prior to the order of 5 May 2008, the domestic courts had already made thirty-four orders blocking access to YouTube on account of illegal content hosted by the site. Following the orders, the TİB had contacted YouTube’s legal representative in Turkey under the “notice and take down” procedure. The order of 5 May 2008, according to the Government, indicated that there were ten web addresses (URLs) hosting defamatory content about Atatürk. Access to six of the pages had been blocked, but the other four had remained accessible both from within Turkey and abroad. Accordingly, the TİB had notified YouTube of its decision to remove the content in question. However, YouTube had not stopped hosting the offending pages and the TİB had had no other solution than to block access to the entire YouTube website, as Turkey had not set up a URL filtering system. 18. The applicants stated that following the order of 5 May 2008, access to YouTube had been blocked in Turkey by the TİB until 30 October 2010. On that date, the blocking order in respect of YouTube had been lifted by the competent public prosecutor’s office following a request from a company claiming to own the copyright to the videos. However, from 1 November 2010 YouTube had decided to restore the videos, finding that they did not infringe copyright. The second and third applicants also pointed out that they had discovered that in January 2015, four video files (nos. 1, 2, 7 and 8) out of the ten concerned by the order of 5 May 2008 were still accessible on YouTube. They noted that among those files, videos nos. 2 and 7 did not include any content that could be construed as insulting the memory of Atatürk and thus fell outside the scope of section 8 of Law no. 5651. In particular, video no. 2 was fourteen seconds long and showed a burning Turkish flag. Video no. 7 was forty-nine seconds long and showed a former chief of staff of the Turkish armed forces. Only videos nos. 1 and 8 might have been regarded as insulting, but there had been no proceedings to establish that their content was illegal. | 1 |
test | 001-155082 | ENG | BEL | CHAMBER | 2,015 | CASE OF LHERMITTE v. BELGIUM | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | András Sajó;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The applicant was born in 1966. She is currently detained in Forest Prison. 6. On 28 February 2007 the applicant called the emergency services to say that she had killed her five children and had tried to commit suicide. When the police, the ambulance crew and the medical services arrived at the scene, they found the applicant, who was injured, and the bodies of five children with their throats slit. 7. In an order of 17 June 2008 the Indictments Division (Chambre des mises en accusation) of the Brussels Court of Appeal committed the applicant to stand trial for the following offence: “in Nivelles, on 28 February 2007, having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] with premeditation.” 8. The following details were mentioned in the indictment of 16 October 2008. 9. On the applicant’s admission to the intensive-care unit on the day of the incident, the doctor treating her had noted “depressive, self-destructive thoughts against a background of psychotropic, anti-anxiety and antidepressant medication”. During her initial police interview, the applicant had explained that she had acted in a fit of despair caused by her family’s dependence on Dr S., who lived in the same house as the applicant, her husband and their five children and supported them financially. 10. The investigating judge ordered several psychological reports. Two psychologists examined the applicant and submitted their respective reports on 30 October and 8 November 2007. They both concluded that the applicant was suffering from inner fragility requiring massive, rigid defences to preserve a perfect facade. She had developed a maternal omnipotence and a lack of psychological distance between the children and herself. Thus, by killing her children – love-objects in whom she had over-invested – the applicant was killing herself both as a person and as a mother. 11. The investigating judge also ordered a psychiatric assessment. A panel of three psychiatrists examined the applicant and drew up a lengthy report dated 30 October 2007, in which they concluded: “We consider that [the applicant] was in a severe state of anxiety and depression which encouraged her to act as she did and profoundly impaired her judgment, without destroying it altogether. ... The accused was not suffering at the time of the events, and is not currently suffering, from a mental disorder or a severe mental disturbance or defect making her incapable of controlling her actions.” 12. The applicant’s trial took place in the Assize Court of the province of Walloon Brabant from 8 to 19 December 2008. 13. During the trial Dr V., the applicant’s psychiatrist, mentioned two letters which the applicant had sent him a few days before the events but which had not previously been included in the file. The President of the Assize Court accordingly instructed the three psychiatrists who had already been involved at the investigation stage to draw up an additional report in the light of the new evidence. 14. On 14 December 2008 the three psychiatrists submitted their unanimous report, concluding as follows: “The letter of 13 February [2007] suggests all the signs of melancholic major depression. ... These melancholic features are grounds for hospital admission or observation where necessary. ... These documents thus demonstrate beyond doubt that [the applicant] no longer felt able to control her actions ... she developed a transient dissociative state of depersonalisation, causing her to perform acts of extreme violence. Only operational thought remains; reflective consciousness is completely lacking. ... Conclusion: at the time of the events, the accused was suffering from a severe mental disturbance making her incapable of controlling her actions, and is currently suffering from a severe mental disturbance warranting long-term treatment.” 15. At the end of the oral proceedings, the jury was called to answer the following five questions put to it by the President of the Assize Court: “1st question (principal question as to guilt) Is the accused Geneviève Lhermitte, present before this court, guilty of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007? 2nd question (subsidiary to the 1st question, to be answered by the jury only if it has answered the 1st question in the affirmative) Is it established that the intentional homicide referred to in the first question was premeditated? 3rd question (principal alternative as to the commission of an act classified as a serious crime, to be answered by the jury only if it has answered the 1st question in the negative) Is it established that the accused Geneviève Lhermitte, present before this court, committed the act classified as a serious crime of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007? 4th question (subsidiary to the 3rd question, to be answered by the jury only if it has answered the 3rd question in the affirmative) Is it established that the act classified as a serious crime referred to in the 3rd question was premeditated? 5th question (principal question as to social protection, concerning the accused’s current mental state, to be answered by the jury only if it has answered the 1st question in the affirmative or the 3rd question in the affirmative) Is it established that the accused Geneviève Lhermitte, present before this court, is suffering either from a mental disorder or from a severe mental disturbance or defect making her incapable of controlling her actions?” 16. The jury answered “yes” to the first two questions and “no” to the last question. 17. In a judgment of 19 December 2008 the Assize Court, composed of three judges and the jury, endorsed the guilty verdict reached by the jury and sentenced the applicant to life imprisonment. The judgment included reasons for the sentence. The court took into account the particularly heinous nature of the offences, holding: “The accused’s heavy family responsibilities and her painful feelings of isolation and dependence may account for a legitimate desire for greater personal freedom. Her mental fragility, depression and character no doubt made it more difficult to handle this desire and, through dialogue, to seek possible improvements within the limits of her specific circumstances, taking into consideration all those close to her. However, neither those factors, nor even a wish to escape from what she considered a dead-end situation through suicide, nor a lack of appropriate help, can provide a sufficient explanation for the acts of extreme violence which she resolved to commit, and carried out in cold blood. ... In the specific circumstances relating both to the accused’s character and to her living environment, the genuine difficulties experienced by her do not constitute mitigating factors, having regard to the extremely serious nature of the offences committed.” As an ancillary penalty, the applicant was stripped of all titles, ranks and functions she held and was permanently deprived of certain rights in accordance with Articles 19 and 31 of the Criminal Code as in force at the material time. Lastly, the judgment was to be printed and publicly displayed in the municipality where the offence had been committed, in accordance with Article 18 of the Criminal Code. 18. On 8 January 2009 the applicant appealed on points of law, raising the same complaints as those submitted before the Court. 19. On 6 May 2009 the Court of Cassation dismissed the applicant’s appeal. With regard to the jury’s guilty verdict, it observed that the Assize Court had had to rule on a plurality of serious crimes (concours matériel de crimes) within the meaning of Article 62 of the Criminal Code and not a single act constituting several different offences (délit collectif) within the meaning of Article 65, which required a unity of intent, and that the parties had agreed to the wording of the questions put to the jury. The Court of Cassation pointed out that Article 6 of the Convention did not require the court to be made up solely of professional judges, lawyers or experts and that the applicant had not adduced any specific evidence to justify her fear that the jury might not be impartial. Furthermore, the wording of the jury’s guilty verdict in the form of a simple “yes/no” answer was prescribed by Article 348 of the Code of Criminal Procedure. With regard to the applicant’s criminal responsibility, the Court of Cassation held that the Assize Court’s judgment had indicated why the conditions for the application of the Social Protection Act were not satisfied: “In noting the accused’s cold-blooded manner and her determination to carry out her crimes, the [Assize Court] judgment indicates the reason why the Assize Court did not accept that the perpetrator had been suffering from any mental disturbance making her incapable of controlling her actions at the time of the events.” As regards the reasons for the sentence, the Court of Cassation held that there was no statutory provision prohibiting the Assize Court precluded any mitigation of the perpetrator’s guilt; nor was there any statutory provision establishing that a decree of divorce in civil proceedings constituted res judicata in respect of criminal proceedings. Furthermore, the conclusions of the Assize Court judgment to which the applicant had objected had not punished her for refusing to admit her own guilt but had indicated the reasons why the Assize Court had not accepted that there were any mitigating circumstances. In addition, regarding the ancillary penalties, the Court of Cassation pointed out that deprivation of functions and permanent withdrawal of certain civic rights were mandatory ancillary penalties (Articles 19 and 31 of the Criminal Code) for anyone sentenced to life imprisonment and therefore did not require any reasons. It further held that public display of a criminal conviction did not attain the minimum level of severity required by Article 3 of the Convention. Lastly, the fact that no appeal lay against the jury’s verdict (Article 350 of the Code of Criminal Procedure) resulted from a provision which the Assize Court had not applied in the judgment itself and which was therefore extraneous to the judgment. | 0 |
test | 001-142841 | ENG | HRV | CHAMBER | 2,014 | CASE OF ŠIMECKI v. CROATIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1981 and lives in Mirkovci. 6. On 7 July 2004 the Krk Municipal Court (Općinski sud u Krku) issued an enforcement order (hereinafter “the first enforcement order”) against the applicant’s movable assets for unpaid mobile telephone bills in the period between 5 July and 6 October 2003. This decision was served on a certain M.K. on 22 October 2004, and subsequently became final. 7. At the plaintiff’s request, on 7 July 2006 the Krk Municipal Court ordered the enforcement (hereinafter “the second enforcement order”) by way of attachment of the applicant’s earnings. This decision was served on the applicant on 27 November 2006. 8. On 4 December 2006 the applicant lodged an appeal against both enforcement orders. She argued that she could not have made the said telephone calls, because she had been in prison between 14 August 2003 and 26 October 2004 and the police seized her mobile telephone. She enclosed a receipt to show that her mobile telephone and SIM cards had been taken from her. 9. She further argued that the first enforcement order had never been served on her as she was in prison at the time. 10. Finally, the applicant requested the quashing of the certificate of enforceability (klauzula ovršnosti) of the first enforcement order. 11. The recipient of the applicant’s submission of 4 December 2006 was the Krk Municipal Court, which forwarded it to the Koprivnica County Court (Županijski sud u Koprivnici) as an appeal against the second enforcement order. 12. On 29 August 2007 the Koprivnica County Court declared the applicant’s appeal inadmissible as lodged out of time, finding that the last day for lodging an appeal was 5 December 2006, whereas the appeal had been lodged on 6 December 2006. 13. On 17 September 2007 the applicant asked the County Court to rectify its decision, as in fact she had lodged her appeal on 4 December 2006. 14. On 12 October 2007 the Koprivnica County Court dismissed the applicant’s request for rectification. The relevant part of that decision reads as follows: “... the Court can rectify mistakes in names and numbers and other obvious mistakes... and flaws... In this case, the complaint was indeed erroneously declared inadmissible as out of time... Nevertheless, a mistake of this sort is not an obvious mistake... which can be rectified, but it is an erroneous decision binding the Court after its service on the parties, notwithstanding its invalidity... It should be mentioned, however, that the enforcement debtor did not suffer any disadvantage as a result of such a decision. The enforcement debtor in fact appealed against the enforcement order... of 7 July 2006 on the grounds of a serious breach of procedural rules, arguing that the enforcement order was not served on her. Since the enforcement order in question was merely a decision changing the means of enforcement, and a decision of such nature can be appealed against only if it orders enforcement of objects and rights exempted from enforcement (section 46 (2) of the Enforcement Act)... the enforcement debtor’s appeal should have been dismissed. If the enforcement debtor’s claim that the initial enforcement order was never served on her were true, that decision could not have become final and the enforcement debtor should, in the view of this Court, have asked the first-instance court to duly serve the enforcement order on her, so that she could appeal against it...” 15. The applicant subsequently made a constitutional complaint, following which the Constitutional Court (Ustavni sud Republike Hrvatske) separated that complaint into a complaint against the decision of the Koprivnica County Court to declare the applicant’s appeal inadmissible and a complaint against the refusal of the Koprivnica County Court to rectify its previous decision. The Constitutional Court declared both complaints inadmissible on 26 October 2009, on the grounds that they did not concern decisions on the merits of the case and as such were not susceptible to constitutional review. 16. Meanwhile, on 30 November 2007 the applicant lodged a complaint with the Supreme Court (Vrhovni sud Republike Hrvatske) about the length of the enforcement proceedings. 17. On 10 December 2007 the Supreme Court ruled that it lacked jurisdiction, and forwarded the case to the Rijeka County Court (Županijski sud u Rijeci). 18. On 29 January 2009 the Rijeka County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded her 4,500 Croatian kunas (HRK) in compensation, and ordered the Krk Municipal Court to complete the enforcement proceedings within six months of service of its decision. 19. It appears that the Krk Municipal Court failed to meet that deadline. | 1 |
test | 001-179440 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KOTOV 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. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-159442 | ENG | DEU | ADMISSIBILITY | 2,015 | RUPP v. GERMANY | 4 | Inadmissible | Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 1. The first applicant, Ms Hermine Rupp (application no. 60889/12), is a German national who was born in 1955 and lives in Schongau. She was represented before the Court by Mr K. Wittmann, a lawyer practising in Ingolstadt. 2. The second applicant, Ms Manuela Rupp (application no. 60893/12), is a German national who was born in 1985 and lives in Neuburg a.d. Donau. She was represented before the Court by Ms R. Rick, a lawyer practising in Munich. 3. The third applicant, Ms Andrea Rupp (application no. 60879/12), is a German national who was born in 1986 and lives in Neuburg a.d. Donau. She was represented before the Court by Ms A. Brossin de Méré, a lawyer practising in Paris. 4. The facts of the cases, as submitted by the applicants, may be summarised as follows. 5. The first applicant is the mother of the other two applicants. 6. The first applicant was married to R.R., who was the father of the other two applicants. 7. R.R. disappeared in the night of 12 October 2001 and subsequently did not reappear; neither did his car, which had disappeared the same night. 8. On 14 October 2001 the first applicant reported R.R. missing. 9. The investigations had initially been terminated without any results. They were reopened by the Ingolstadt police in November 2003. 10. On 13 January 2004 the applicants and the second applicant’s fiancé, M.E., were taken to the police station. The applicants’ house was searched the same day, without any evidence being found. All three applicants were questioned that day, first as witnesses and after a couple of hours as suspects. They were represented by counsel from that day on. 11. When being questioned on that day, the first applicant confessed that R.R. had come home drunk in the night of 12 October 2001 and she had pushed him during an argument. As a consequence R.R. had fallen down the stairs. She and M.E. had carried R.R.’s corpse away. On 14 January 2004 she added that she had wiped away a pool of blood, carried the corpse to R.R.’s car and submerged both the car and the corpse in a pond near the village of Irgertsheim the same night. On 21 January 2004 she withdrew these confessions. During subsequent questioning she repeatedly stated that R.R. had not come home that night. 12. The second applicant stated in her first interview, on 13 January 2004, that her father had not returned home that night. A couple of days later she changed her statement and alleged that her mother had accidentally pushed her father and he had fallen down the stairs. On 4 February 2004, during a video-taped reconstruction of the crime scene with the police, she stated that her fiancé alone had killed her father with a club. On that day she was told by a police officer that there was a rumour that her father’s corpse had been fed to the dogs. Later the same day she stated that her mother had also hit her father with a club. On 18 and 21 February 2004 she stated that it had been her fiancé alone who had killed her father, cut the corpse into pieces and fed it to the dogs. After she had withdrawn all confessions, on 1 June 2004 she incriminated herself, alleging that she had killed her father with a hammer, and her fiancé had burnt the corpse. She withdrew that confession as well, alleged sexual abuse by her father and repeated some of the other versions. 13. The third applicant stated in her first interview, on 13 January 2004, that she did not know whether her father had returned that night or not. After a police officer alleged that her mother and the second applicant’s fiancé had confessed to the killing, she complained of sexual abuse by her father that night, after which her mother and father had had a row and her mother had pushed him down the stairs. On 23 January 2004 she declared that the second applicant’s fiancé and her mother had killed her father with a club. On 3 February 2004 she changed her version and alleged that a hammer had been used. On 19 March 2004 she again alleged abuse by her father that night. As a consequence, the second applicant’s fiancé had pushed him down the stairs and disposed of the corpse along with the car. On 28 April 2004 she changed her story once more, alleging that the hitting had taken place on the staircase and that her father’s corpse had been cut into pieces and fed to the dogs. Afterwards she denied having seen anything at all. Finally she withdrew all confessions. 14. The second applicant’s fiancé, M.E., stated at his first interview that the first applicant had killed R.R. with a club and that he had helped her to dispose of the corpse and the car in a pond near the village of Irgertsheim. He repeated this version several times until 15 April 2004. Then he alleged that he had hit R.R. with a club, carried the corpse into the cellar, cut it into pieces, boiled the head in a pot and fed the pieces to the dogs. Later on he alleged that the first and the second applicants had participated in hitting R.R. On 11 May 2004 he changed his confession, and alleged that he alone had hit R.R. in the neck. In October 2004 he withdrew all confessions. 15. After the withdrawal of their confessions, all the applicants alleged that they had made their confessions because the police officers had put pressure on them. 16. The applicants were in pre-trial detention throughout the criminal proceedings. 17. On 13 May 2005 the Ingolstadt Regional Court convicted the first applicant and the second applicant’s fiancé M.E. of manslaughter and sentenced the first applicant to eight years and six months’ imprisonment. The second and third applicants were convicted of having aided and abetted the manslaughter by omission and were sentenced to three years and six months’ and two years and six months’ imprisonment respectively. The Ingolstadt Regional Court was convinced that R.R. had returned home drunk with his car that night, had been killed by the first applicant and the second applicant’s fiancé, and had then been cut into pieces and fed to the dogs. The car had been destroyed in a scrap baling press. The second and third applicants had witnessed the killing without helping R.R. The court’s findings with regard to the events of the crime were based on the testimony of the police officers who had interviewed the applicants and the second applicant’s fiancé during the investigations. At that time neither R.R.’s corpse nor the car had been found. 18. As regards the applicants’ criminal liability the Regional Court relied in detail on two expert reports. The first report concerned the applicants’ and M.E.’s mental health. It asserted that the first applicant had an intelligent quotient of 53 and she therefore suffered from reduced mental capacity on the threshold of severe mental retardation (Debilität im Grenzbereich zur Imbezilität), the second applicant had an intelligence quotient of 71 which could be classified as a learning disability (unterdurchschnittliche Intelligenz im Bereich der Lernbehinderung), and the third applicant had an intelligent quotient of 63 and she therefore suffered from reduced mental capacity as well (Debilität). The second applicant’s fiancé, M.E. was found to have an intelligence quotient of 70. The second report concerned the question whether their reduced mental capacity diminished or excluded their criminal liability, which was answered in the negative. 19. The applicants appealed on points of law. On 10 January 2006 the Federal Court of Justice dismissed their appeal. 20. The applicants and M.E. served their sentences: the first applicant until 12 November 2009, the second applicant until 2 February 2006 and the third applicant until 27 October 2005. 21. On 10 March 2009 R.R.’s corpse was found, sitting in his car at the Bergheim barrage of the Danube in Neuburg a.d. Donau. A commissioned expert came to the conclusion that R.R. had not been killed by blunt force to his head, backbone or rib cage. The corpse, which was in rather good condition considering the fact that it had been in the water for several years, did not show any appearance of having suffered external force. 22. In July 2009 the applicants and M.E. requested the reopening of the proceedings and claimed monetary compensation for wrongful detention on remand and imprisonment after trial. 23. On 17 November 2009 the Landshut Regional Court rejected the request to reopen the proceedings. On the applicants’ and M.E.’s appeal against this decision, the Munich Court of Appeal granted their request to reopen the proceedings. 24. On 31 March 2010 the Landshut Regional Court reopened the proceedings and subsequently held several hearings. The proceedings against the third applicant were separated from those of the first and second applicants and M.E. due to her physical condition (see paragraph 33 below). 25. On 25 February 2011 the Landshut Regional Court acquitted the first applicant and M.E. of manslaughter and the second applicant of having aided and abetted manslaughter by omission. 26. In part B of the judgment the Regional Court assessed the first and second applicants’ mental health. It relied on two expert opinions, which confirmed those obtained in the first set of proceedings, namely that the first applicant had an intelligence quotient of 53 and the second applicant of 71 and both therefore suffered from reduced mental capacity. 27. Part E of the judgment contained the reasons for the acquittal. The court expressed its conviction that R.R. had arrived home at 12.45 a.m. The court was unable to establish what exactly had happened afterwards, but it was certain that one, some or all of the accused had acted in a way which had finally caused R.R.’s death during that night. The court was unable to establish which of the accused had participated in these actions, how R.R.’s death had been caused and how the corpse and the car had come to be disposed of at the barrage of the Danube. As nothing pointed to suicide or death by violence on the way home, in the acquitting court’s view R.R.’s death must have occurred after he arrived home. The fact that R.R. had returned home had been confirmed by the applicants and M.E. during the first set of proceedings. 28. The Regional Court considered that the applicants’ and M.E.’s statements could be used as evidence as there was nothing to indicate that prohibited methods of questioning had been used. In so far as the police officers had confronted the applicants in a few cases with incorrect facts, their method of questioning had to be considered as a minor attempt to mislead which did not interfere with the applicants’ right to silence. The fact that the applicants had been interrogated as witnesses at the beginning of their first interview, and not immediately as suspects, did not lead to the inadmissibility of the statements as evidence either. Furthermore, throughout the proceedings neither the applicants nor their counsel had claimed specifically that the police officers had used illegal pressure during questioning. The general allegation in this regard was unsubstantiated and nothing in the course of the proceedings indicated that the police officers had used leading questions to obtain confessions. Furthermore, the videotaped reconstruction of the crime scene, which the court had viewed, had not given any impression of psychological pressure on the applicants’ free will when talking about the crime. 29. In two separate sections subsequent to the acquitting part of the judgment the Regional Court also issued the decision concerning costs and expenses and the decision concerning compensation. The decision concerning costs and expenses was titled part F and the decision concerning compensation part G. The Regional Court ordered the treasury to pay the costs of the proceedings but declined to reimburse the applicants’ legal costs and expenses in accordance with Article 467 § 3 of the Code of Criminal Procedure (see paragraph 45 below). It further dismissed the applicants’ monetary compensation claims with regard to their pre-trial detention and their imprisonment in accordance with Article 5 § 2 of the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen, see paragraphs 46 to 49 below). 30. The court found that these claims were to be rejected because the applicants had caused both their detention on remand and their imprisonment by culpable negligence. It argued that the applicants had acted with culpable negligence because they incriminated themselves by making either deliberately wrong statements, or statements which could be proved neither true nor false. 31. As to the confessions of the first applicant, the court held that the first applicant’s statement of 14 January 2004, that she had lowered R.R.’s corpse and the car into a pond near the village of Irgertsheim, had been untrue because both the corpse and the car had been found at a barrage of the Danube. Furthermore, in 2004 the first applicant had incriminated herself during the first set of proceedings when stating that R.R. had returned home on the night of his disappearance, while in 2001 she had reported him missing. Thus she herself had created a strong suspicion that she had killed R.R. As a result, she had caused the indictment and the judgment by culpable negligence. Regarding the question of whether her reduced mental capacity discharged the first applicant of culpable negligence, the court observed that she had been able to follow the court proceedings and had been capable of answering questions during the police investigations in 2004 after thorough reflection. Her mental capacity was not such that she could not easily foresee that her statements would lead to the strong suspicion that she had killed R.R. 32. In so far as on 1 June 2004 the second applicant had admitted to having hit R.R.’s skull with a hammer, the Landshut Regional Court found that this self-incrimination had been untrue because the expert who examined R.R.’s corpse had come to the conclusion that R.R.’s skull had been intact. As a consequence, the second applicant had created a strong suspicion against herself concerning R.R.’s death. Furthermore, the court found that the second applicant had incriminated herself by her statements when questioned on 13 January, 4, 18 and 21 February 2004, even though the court was not able to determine whether these statements had been true or false. Despite her reduced mental capacity, the Landshut Regional Court was convinced that in 2004 the second applicant had been able to foresee that her statements would create a strong suspicion against her, because most of her self-incriminating statements had been very grave, repeated and given after having consulted her counsel. In the court’s view, the commissioning of an expert on grounds of her reduced mental capacity had not therefore been necessary. Lastly, nothing indicated that these statements were made in response to unlawful questioning. 33. On 11 May 2011 the third applicant was also acquitted of having aided and abetted manslaughter by omission for the same reasons as set out in the Regional Court’s judgment of 25 February 2011. The Regional Court found that she had an intelligent quotient of 63 and that she therefore suffered from reduced mental capacity. As regards the reimbursement of costs and compensation, the third applicant was awarded monetary compensation solely for the first day of her detention on remand. The acquitting court found that the third applicant caused both her detention on remand and her imprisonment by culpable negligence. Her statement of 28 April 2004, that M.E. had killed R.R. with a hammer and that the corpse had been cut into pieces and fed to the dogs, had been untrue because the corpse had been found at the barrage. Therefore, the third applicant had also created a strong suspicion against herself concerning R.R.’s death. Regarding her allegation that she had been sexually abused by R.R. on the night of his disappearance, the court could not determine whether this statement was true or false. However, since she had withdrawn these statements later on this was of only minor importance, because she had equally caused her indictment and imprisonment by culpable negligence. The court found that the third applicant’s reduced mental capacity did not discharge her of culpable negligence. Despite this disability she had been able to express herself clearly and had incriminated herself gravely and repeatedly while advised by counsel. Nothing indicated that she had not been able to understand the importance and meaning of her statements. Furthermore, she made her statements in the presence of her counsel. 34. The applicants appealed against the Landshut Regional Court’s two decisions to refuse monetary compensation and the reimbursement of legal costs and expenses. 35. On 14 July 2011 (concerning the third applicant) and 26 July 2011 (concerning the first and the second applicants) the Munich Court of Appeal rejected the appeals against the refusal of monetary compensation for their imprisonment. The court pointed out that, when assessing whether the criminal proceedings and the convictions had been caused by culpable negligence, the point of view at the time of the first set of proceedings was decisive. A refusal of monetary compensation under Article 5 § 2 of the Act on Compensation for Prosecution Measures was limited to cases where the person concerned had acted with gross negligence. It was therefore not sufficient to draw a suspicion on oneself. The person concerned must have substantially influenced the criminal proceedings or the conviction by his conduct. 36. Applying these principles to the applicants’ cases, the Munich Court of Appeal fully endorsed the legal reasoning of the Landshut Regional Court in part G of the judgment concerning compensation. The alleged use of psychological pressure during the police questionings did not change this assessment. Even if there might have been such a situation, both the constancy and severity of the self-incrimination and the fact that the applicants had been represented by counsel during their various statements had to be taken into account. Furthermore, in view of the expert opinions commissioned in 2004 and during the proceedings at issue nothing indicated that the applicants’ criminal liability had been diminished or excluded at the time they had made their statements. The Munich Court of Appeal noted that during the hearings before the Landshut Regional Court the court had received advice both from a psychologist and a psychiatrist. There had been no reason on the basis of the related request to take further evidence to obtain an additional psychological expert opinion in respect of the applicants’ statements during the first set of proceedings. 37. In the decision dated 26 July 2011 concerning the denial of compensation for the first and the second applicant the Munich Court of Appeal additionally mentioned that the Landshut Regional Court had respected the applicants’ right to be presumed innocent as guaranteed by Article 6 § 2 of the Convention. It noted that the Landshut Regional Court had been permitted to voice a remaining suspicion against the applicants, as long as it clearly stated that any remaining suspicion did not amount to a finding of guilt. These requirements were fulfilled because the Regional Court, in stating that it was convinced that one or all of the accused had caused R.R.’s death without being able to establish which of the accused and in what way, had not commented on the applicants’ guilt but on whether the evidence before it left any suspicious circumstances. 38. On 12 September 2011 the Munich Court of Appeal further rejected the applicants’ appeal against the refusal of reimbursement of legal costs and expenses, fully endorsing the Munich Court of Appeal’s reasoning in its decision of 26 July 2011 while referring to part F of the Regional Court’s judgment. 39. The first applicant complained of a violation of her right to be heard regarding both decisions of the Munich Court of Appeal. The second applicant lodged a motion to be heard and statement of objections (Gegenvorstellung) against the Court of Appeal’s refusal to pay monetary compensation. The third applicant lodged a motion to be heard against the refusal of monetary compensation and statements of objections against the refusal to reimburse legal costs. All requests were rejected by the Munich Court of Appeal. 40. The first applicant lodged a constitutional complaint with the Federal Constitutional Court against the Court of Appeal’s decisions denying compensation and reimbursement of costs and expenses. In so far as they have submitted, the second and third applicant only lodged constitutional complaints with the Federal Constitutional Court against the Court of Appeal’s decisions refusing the reimbursement of legal costs and expenses. All the applicants alleged that the Munich Court of Appeal’s decisions violated their right to be heard, their right to be presumed innocent and their right to an effective remedy. 41. On 15 March 2012 the Federal Constitutional Court declined to consider the second applicant’s constitutional complaint concerning the refusal of reimbursement of legal costs without providing reasons (file no. 2 BvR 2192/11). 42. On 16 March 2012 the Federal Constitutional Court declined to consider the first applicant’s constitutional complaints concerning both the refusal to reimburse legal costs and the refusal to pay monetary compensation, without providing reasons (file no. 2 BvR 2368/11). 43. On 16 March 2012 the Federal Constitutional Court declined to consider the third applicant’s constitutional complaint (file no. 2 BvR 2374/11). 44. Article 467 § 1 of the Code of Criminal Procedure provides, inter alia, that where the indicted accused is acquitted, his necessary costs and expenses shall be borne by the Treasury. 45. Article 467 § 3 of the Code of Criminal Procedure reads as follows: “(3) The indicted accused’s necessary expenses shall not be charged to the Treasury if the indicted accused caused the preferring of public charges by filing criminal information in which he claimed to have committed the offence with which he was charged. The court may dispense with charging the indicted accused’s necessary expenses to the Treasury if 1. he caused the preferring of public charges by falsely incriminating himself with regard to material points or in contradiction to his later statements or by concealing material exonerating circumstances despite having made a statement in response to the accusation, or ....”. 46. Compensation for damage caused, inter alia, by wrongful prosecution, detention on remand or imprisonment is covered by the Act on Compensation for Measures of Criminal Prosecution (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen). 47. Pursuant to section 1 of that Act, a defendant is notably entitled to compensation for damage incurred by a criminal conviction if the conviction is quashed in re-opened proceedings. 48. According to Article 2 § 1 of the Act on Compensation for Prosecution Measures, a person who has been held in detention on remand may claim compensation if he was acquitted or if the proceedings against him were otherwise discontinued. 49. Article 5 § 2 of the Act on Compensation for Prosecution Measures provides that compensation under that Act is ruled out if the accused caused the prosecution deliberately or by culpable negligence (vorsätzliche oder grob fahrlässige Verursachung). The latter is established when it has to be said of an accused that he himself prompted the criminal proceedings by behaving in a way which failed to take into account the elementary fact that such behaviour would obviously lead to criminal proceedings. | 0 |
test | 001-140236 | ENG | POL | COMMITTEE | 2,014 | CASE OF MAREK v. POLAND | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney | 5. The applicant was born in 1951 and lives in Łańcut. 6. Prior to her early retirement she had been employed for 23 years and had paid her social security contributions to the State. Between October 1992 and November 1997 she received a disability pension. 7. On 6 March 2000 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8. Along with her application for a pension, the applicant submitted, among other documents concerning her son’s health condition, a medical certificate issued by a specialist doctor. The certificate stated that the child (born in 1985) suffered from chronic asthma and that he was in need of his parent’s constant care. 9. On 19 April 2000 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension with effect of 1 March 2000. 10. Due to the applicant’s employment the Social Security Board initially suspended the payment of the pension until the end of April 2000. The payment started on 1 May 2000. 11. The EWK pension granted to the applicant amounted to 773.89 Polish zlotys (PLN) (approximately EUR 193). 12. The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and she continued to receive her pension without interruption until the date of the revocation of the right. 13. On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 14. On 25 April 2003 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. 15. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the 1989 Ordinance. 16. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 17. On 12 May 2004 the Rzeszów Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. 18. The applicant appealed against the first-instance judgment. 19. On 6 October 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she had not satisfied the requirement of necessary permanent care. 20. On 24 February 2004 the Supreme Court refused to examine the applicant’s cassation appeal. The Supreme Court’s decision was served on the applicant’s lawyer on 15 March 2005. 21. Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board, despite the revocation of her right to an early-retirement pension. 22. Throughout the whole period of receiving the EWK pension the applicant did not work. 23. On 1 May 2003 the applicant registered her business activity which she continued until 8 November 2005. Between 22 June and 1 August 2005 the activity was suspended. 24. Between 1 February and 31 October 2006 the applicant was employed. 25. The Government submitted that the applicant’s gross annual income in 2006 amounted to PLN 8,293 (approx. EUR 262) which constituted 27.90% of the average salary in Poland at the relevant time. 26. On 1 November 2006 the applicant turned 55 and she was granted a right to early retirement. Between 2006 and 2010 the early retirement amounted to PLN 1,150-1,300 (approx. EUR 290-325) which constituted approx. 40% of the average net salary at the relevant time. 27. The Government submitted that “between 2003 and 2005 the applicant was making profits of her business activity”, however, they were unable to submit information as regards the amount of the profits. 28. The applicant submitted that her business activity was a small shop in a modest wooden pavilion. She was forced to undertake this activity because of her economic situation after the revocation of her EWK pension. The profits were irregular and very modest. Sometimes she could not afford to pay the taxes and social insurance premiums and had to borrow money to do so. She produced her tax declarations for the years 2003-2009 from which it emerges that from her business activity she earned PLN 3,237.09 (approx. EUR 737) in 2003, PLN 1,404.49 (approx. EUR 312) in 2004 and PLN 912.90 (approx. EUR 234) in 2006. In 2005 her tax declaration showed a loss of PLN 3,751.85 (approx. EUR 938). | 1 |
test | 001-160422 | ENG | RUS | CHAMBER | 2,016 | CASE OF NAZYROVA 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 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture) | Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicants are Russian nationals who, at the material time, lived in various districts of the Chechen Republic. They are close relatives of individuals who disappeared after being unlawfully detained by servicemen during special operations. In each of the applications, the events concerned took place in areas under the full control of the Russian federal forces. The applicants have had no news of their missing relatives since the alleged arrests. 6. The applicants reported the abductions to lawenforcement bodies and official investigations were opened; however, the proceedings were repeatedly suspended and resumed, and have remained pending for several years without achieving any tangible results. The investigations have consisted mainly of requests for information and formal requests for operational-search measures to be carried out by counterparts in various parts of Chechnya and other regions of the North Caucasus. The requests received either negative responses or none at all. 7. From the documents submitted, it appears that the relevant State authorities were unable to identify the State servicemen allegedly involved in the arrests or abductions. 8. In their observations, the Government did not challenge the description of the circumstances of the abductions as presented by the applicants; however, they stated that there was no evidence to prove beyond reasonable doubt that State agents had been involved in the incidents. 9. Summaries of the facts in respect of each individual application are set out below. Each account is based on statements provided by the applicants and their relatives and/or neighbours to both the Court and domestic investigative authorities. The personal details of the applicants and their missing relatives, and some other key facts, are summarised in the Appendix I. 10. The applicant, Ms Maret Nazyrova, was born in 1968 and lives in Gekhi in the Urus-Martan district of the Chechen Republic. She is the sister of Mr Badrudi Nazyrov, who was born in 1973. 11. On 20 April 2000, during the daytime, Mr Nazyrov and his friend, Mr Said-Selim Aguyev, were at the applicant’s house in Gekhi when a group of about thirty to forty armed servicemen from the Police Special Task Unit (Отдел милиции особого назначения (ОМОН)) (hereinafter “the OMON”) comprised of servicemen from the Perm Region arrived at the settlement in several vehicles. Some of them were wearing balaclavas. They cordoned off the area and ordered the residents to stay inside. About fifteen servicemen broke into the applicant’s house and searched it. Then they beat up the applicant’s brother and his friend, pulled their T-shirts over their heads, put them into UAZ-type minivans and took them to the UrusMartan military commander’s office. The applicant and a number of local residents witnessed the events. 12. The Perm OMON unit was stationed on the premises of an orphanage in the vicinity of the applicant’s house. At the material time, two brothers of the Kuznetsov family were in charge of the OMON unit. It appears that they were involved in the abduction as they were not wearing masks and could therefore be identified by the applicant. The following day the military commander’s office accepted a food package for Mr Nazyrov, but the next day the servicemen denied that he had ever been detained on their premises. 13. The applicant has not seen Mr Nazyrov since the abduction on 20 April 2000. 14. The above account is based on witness statements provided by the applicant and copies of documents from the investigation file furnished by the Government. 15. From the documents furnished by the applicant and six pages of documents from criminal case no. 24074 submitted by the Government, information about the ensuing official investigation can be summarised as follows. 16. On 4 May 2000 Mr Nazyrov’s father, Mr Sh.N., reported the abduction to the Urus-Martan military commander’s office and the UrusMartan military prosecutor’s office, stating that his son had allegedly been taken to the Urus-Martan military commander’s office with Mr Aguyev, and that the two men had been detained as the latter had had no identity documents on him. 17. On or around 14 May 2000 the abduction report was forwarded to the Urus-Martan temporary police department (Временный отдел внутренних дел (ВОВД)) (hereinafter “VOVD”) and from there to the Urus-Martan district prosecutor’s office. 18. On 16 May 2000 the Urus-Martan district prosecutor’s office returned the complaint to the VOVD stating that it had been submitted “prematurely”. 19. On 17 May 2000 investigators from the VOVD refused to initiate criminal proceedings into the abduction. 20. On 25 November 2000 the Urus-Martan district prosecutor’s office overruled the refusal and opened criminal case no. 24074. The decision stated that the applicant’s brother had been detained “during a special operation, the lawfulness of which has not been confirmed”. 21. From the documents submitted, it appears that between November 2000 and January 2007 the investigation was suspended and no investigative steps were taken. The applicant was not informed thereof. 22. It appears that on an unspecified date in January or February 2007 the investigation was resumed at the request of the applicant and on 2 February 2007 she was granted victim status in the criminal case. 23. On 1 March 2007 the investigation was suspended. The applicant was informed thereof. 24. On 21 August 2008 the applicant complained to the Urus-Martan Town Court that the investigation into the abduction was protracted and asked for it to be resumed. 25. On 9 September 2008 the court rejected the applicant’s complaint, as the investigation had been resumed on 1 September 2008. 26. On 30 September 2008 the investigation was again suspended. The applicant was informed thereof. 27. From the documents submitted, it appears that the investigation is still pending. 28. The applicant, Ms Satsita Babuyeva, was born in 1958 and lives in Grozny, the Chechen Republic. She is the wife of Mr Muma Babuyev, who was born in 1958. 29. At the material time, Mr Babuyev worked as a driver for the Department of Technological Equipment (Управление производственно-технологической комплектации (УПТК)) based on the premises of the main military base of the Russian federal troops in Khankala, Chechnya. On the morning of 30 August 2002, on his last day of work, he went there with the applicant to the military base to collect a year’s salary arrears. The couple arrived at the checkpoint at the entrance to the base at about 10 a.m. The applicant’s husband went inside, while she was told to wait for him at the entrance. 30. The applicant spent the entire day waiting for her husband but he never came out. In the evening she had to return home. She spent the next two days at the checkpoint waiting for him but to no avail. On 2 September 2002 she managed to speak to a woman from the admissions office who issued entrance passes to the military base. She confirmed that on 30 September she had issued a pass for Mr Babuyev. She had also made one for him for 1 September 2002 but he had not picked it up, which meant that he must have remained inside and not left the premises. The applicant’s husband has been missing ever since. 31. The above account is based on statements provided by the applicant and copies of documents from the investigation file. 32. The Government submitted copies of a small number of documents from criminal case file no. 52112 opened into the disappearance of Mr Babuyev, covering the period between September and November 2002. The relevant information may be summarised as follows. 33. On 22 September 2002 the applicant reported her husband’s disappearance at the military base to various authorities. Her statements concerning the circumstances of the incident were similar to the account she submitted to the Court. 34. On the same date the Grozny city prosecutor’s office initiated a criminal investigation into the events, under Article 126 § 1 of the Criminal Code (kidnapping). The case file was given the number 52112. The relevant parts of the decision read as follows: “...On 30 August 2002 [Muma Babuyev] went to the military settlement of Khankala in Grozny to collect his salary arrears; other employees of [the department] saw [him] on the premises... [He] did not exit the premises and did not return home...” 35. On 16 October 2002 the applicant was granted victim status in the criminal case. 36. On 21 October 2003 the military prosecutor’s office of military unit no. 20102 informed the applicant that further to her complaints, they had conducted a prosecutor’s inquiry into her husband’s disappearance which had not established the involvement of military servicemen in the incident. 37. On 22 November 2002 the investigation was suspended. The applicant was not informed thereof. 38. On an unspecified date in April and on 18 May 2003 the applicant reported her husband’s unlawful arrest and subsequent disappearance to the Chechnya Prosecutor’s office and requested its assistance in the search for him. 39. On 2 October 2003 the Main Military Prosecutor’s office informed the applicant that their inquiry had not established the involvement of military servicemen in her husband’s disappearance. 40. On 2 November 2004 the Staropromyslovskiy District Court of Grozny declared Mr Babuyev missing at the request of the applicant. 41. On an unspecified date between 2004 and 2009 investigators replied to requests by the applicant for information by providing her with a statement to the effect that the investigation into her husband’s abduction was in progress but his whereabouts had not yet been established. 42. On 10 September and then on 3 November 2009 the applicant asked the investigators to inform her of the progress of the investigation and for access the case file. No replies were given to these requests. 43. On 4 August 2011 the investigation was resumed at the request of the applicant. From the documents submitted, it appears that it is still pending. 44. The applicants are Mr Adam Kagermanov, who was born in 1971 (“the first applicant”) and Ms Zura Yakhayeva (also spelled Yakhyayeva), who was born in 1977 (“the second applicant”). The applicants, who live in Gekhi in the Urus-Martan district of the Chechen Republic, are the brother and niece of Mr Ruslan Kagermanov (“Mr Kagermanov ”), who was born in 1963. 45. The applicants’ family home consisted of four dwellings with a shared courtyard. Mr Kagermanov lived alone in a separate dwelling. At the material time, Gekhi was under curfew. At around 4 a.m. on 4 February 2002 the first applicant learnt from a family member that Mr Kagermanov had been abducted earlier that night by a group of armed servicemen, who had arrived at his home in a Ural lorry and broken down the door. The neighbours had heard the abductors driving off in the direction of UrusMartan. The applicant thought that his brother had been taken by State servicemen, as at the time many young men had been abducted in a similar manner during curfew hours. In addition, local residents had seen servicemen driving armoured personnel carriers (APCs) in the vicinity that night. 46. Later that morning the applicants found Ural lorry tyre tracks and footprints of military boots in the snow next to Mr Ruslan Kagermanov’s dwelling. 47. At around 10 a.m. about fifty to sixty Russian servicemen in several APCs and Ural lorries arrived at the Kagermanov family home. They blew up Mr Kagermanov’s household small oil refinery in his backyard and searched the premises. According to the applicants, the servicemen had carried out a sweeping-up operation in the area and had searched other houses with oil refineries. 48. The applicants have not seen Mr Kagermanov since 4 February 2002. 49. The Government did not furnish any documents from the investigation file. From the documents submitted by the applicants, the steps taken by the investigative authorities may be summarised as follows. 50. On 4 February 2002 Mr Kagermanov’s mother, Ms P.K., reported her son’s abduction by military servicemen to the Urus-Martan district prosecutor’s office. 51. On 18 February 2002 the Urus-Martan district prosecutor’s office opened criminal case no. 61023. 52. On unspecified dates in February 2002 investigators questioned the applicants, who both stated they had discovered that Mr Kagermanov had disappeared at about 3.20 a.m. on 4 February 2002. They had found the entrance to his home broken down, footprints of military boots, his belongings scattered around and his broken watch indicating 3.10 a.m. on the floor. The applicants further stated that at about 10 a.m. the same morning a group of fifty to sixty Russian military servicemen in several APCs and Ural lorries had arrived at their house, searched it and destroyed Mr Kagermanov’s oil refinery. 53. In February and March 2002 investigators questioned the applicants and their family members. The statements received were similar to the account furnished by the applicants to the Court. 54. On 18 April 2002 the investigation was suspended. The applicants were not informed thereof. 55. On 4 May 2009 the second applicant requested access to the investigation file. Her request was refused by the investigators on 9 June 2009. 56. On an unspecified date between June and August 2009 she requested victim status in the criminal case. On 11 August 2009 the investigators granted this request and questioned her. Her statement was similar to the account she submitted to the Court. 57. On 18 August 2009 the investigators questioned the first applicant, whose statement was similar to the account he submitted to the Court. 58. On various dates in August 2009 the investigators also questioned the applicants’ relatives and neighbours, Mr Z.K., Ms R.G., Mr M.I. and Ms P.K., whose statements were similar to those of the applicants. No new information was obtained. 59. On 25 August 2009 the investigators examined the crime scene. No evidence was collected. 60. On 11 September 2009 the investigation was suspended. The applicants were informed thereof. 61. On 15 September 2009 the second applicant complained to the Achkhoy-Martan District Court that the investigation had been ineffective and requested access to the investigation file. 62. On 12 October 2009 the second applicant’s complaint was partially allowed by the Achkhoy-Martan District Court. It noted, inter alia, that for seven years, between 2002 and 2009, the proceedings had been dormant and no tangible steps had been taken by the investigators. The court instructed the investigators to provide her with access to the case file. 63. From the documents submitted, it appears that the investigation is still pending. 64. The applicant, Ms Khedi Tchapanova, who was born in 1974, lives in Nice, France. She is the wife of Mr Eduard Zaynadinov (also spelled Zainadinov), who was born in 1974. 65. According to the applicant, her husband was an active member of illegal armed groups between 1994 and 1996 and then between 1999 and 2000. During the more recent period, the applicant and her two children lived in Shali. In January and February 2000 Russian servicemen regularly visited their dwelling. They searched for firearms and asked the applicant questions concerning her husband’s whereabouts. Fearing for her family’s safety, the applicant moved to the “Kavkaz” neighbourhood in Shali. In June 2002 her husband joined them there. On 24 June 2002 servicemen in APCs took him from his home. He was released a week later. 66. Between 3 and 4 a.m. on 30 July 2002 a group of armed servicemen in balaclavas broke into the applicant’s flat in Shali. They pulled a plastic bag over Mr Zaynadinov’s head and took him to an unknown destination in an APC. 67. Several days later the servicemen returned to the applicant’s house. They searched the premises and asked her about her husband’s involvement in illegal armed groups. During the search they found a list of members of illegal armed groups and a number of identity documents, as well as firearms hidden in the garden. 68. The applicant has not seen Mr Zaynadinov since 30 July 2002. In 2007 she moved to France. 69. The Government submitted copies of seventeen pages of documents from criminal case file no. 59229 opened into the abduction of Mr Zaynadinov. The information concerning the criminal proceedings as submitted by both parties may be summarised as follows. 70. On 6 August 2002 the Chechnya prosecutor’s office forwarded the abduction report lodged by Mr Zaynadinov’s father, Mr A.Z. to the Shali district department of the interior (Шалинский районный отдел внутренних дел (РОВД) (hereinafter “ROVD”). 71. On 6 September 2002 investigators questioned Mr A.Z., who stated that at about 3 a.m. or 4 a.m. on 30 July 2002 armed men in camouflage uniforms had arrived in two APCs at their house. They had broken in and checked some identity documents. Afterwards they had taken his son outside, put him into one of the APCs and driven off. 72. On 7 September 2002 two of the applicant’s neighbours (their names were illegible on the documents submitted) stated that on the night of 29 July 2002, they had been woken up by the sound of women crying. They had gone outside and had seen their neighbours on the street and several APCs driving off. They had then learnt that Mr Zaynadinov had been abducted. 73. On 16 September 2002 the Shali district prosecutor’s office opened criminal case no. 59229 into the abduction and informed the applicant thereof. 74. On 16 November 2002 the investigation was suspended. The applicant and her relatives were not informed thereof. 75. On 10 June 2004 the Shali ROVD replied to a request by the applicant for information stating, amongst other things: “ ... in connection with the abduction of Mr E. Zaynadinov, the Shali district prosecutor’s office opened criminal case no. 59229... the police operational search unit opened search file no. 71373 and has been taking measures to search for Mr E. Zaynadinov, whose whereabouts as of 10 June 2004 have not yet been established [...]” 76. According to the applicant, on 16 November 2004 she had to leave the Chechen Republic out of fear for her and her children’s lives. Since January 2007 she has resided in France. 77. On 16 May 2007 the Shali Town Court declared Mr Zaynadinov missing. 78. On 18 March 2008 Mr A.Z. asked the investigators to provide him with copies of documents from the investigation file. His request was granted on 19 March 2008. 79. On 28 October 2008 the Shali Town Court declared Mr Zaynadinov dead at the request of the applicant’s representative. 80. On 12 December 2011 the investigation was resumed further to a complaint by the applicant’s relatives. 81. On various dates in December 2011 and then in February 2012 the investigators questioned several of the applicant’s relatives and neighbours and examined the crime scene. No new information was obtained. 82. On 13 February 2012 the investigation was again suspended. From the documents submitted, it appears to be still pending. 83. The applicant, Ms Ayna (also spelled Aina) Alkhotova, was born in 1975 and lives in Grozny, the Chechen Republic. She is the wife of Mr Ayndi (also spelled Aindi) Diniyev, who was born in 1971. 84. At the material time Grozny was under curfew. The applicant and her husband resided in a block of flats at 186 Pugacheva Street in the Staropromyslovskiy district of Grozny. 85. At about 1 a.m. on 16 August 2003 a group of about ten to fifteen armed servicemen in camouflage uniforms and balaclavas arrived at the flats in three grey UAZ vehicles and an APC. They broke into the applicant’s flat, quickly searched it, dragged Mr Ayndi Diniyev outside, forced him into one of their vehicles and drove off through checkpoint 24 in the direction of the city centre. 86. The applicant has not seen her husband since his abduction on 16 August 2003. 87. The above account is based on a statement provided by the applicant and copies of documents from the criminal case file. 88. On 18 August 2003 the applicant reported her husband’s abduction to the Staropromyslovskiy ROVD stating, amongst other things, that the abductors had arrived in three UAZ minivans and an APC without registration numbers. 89. On 18 August 2003 investigators from the Staropromyslovskiy district prosecutor’s office (“the prosecutor’s office”) examined the crime scene. No evidence was collected. 90. On the same date the investigators questioned the applicant and her relatives, Mr R.E. and Ms M.A., whose statements concerning the incident were similar to the account the applicant submitted to the Court. 91. On 29 August 2003 the prosecutor’s office opened criminal case no. 50094 into the abduction of Mr Diniyev. 92. On 22 September 2003 the investigators questioned the applicant’s mother Ms M.A., whose statement was similar to the account the applicant submitted to the Court. 93. On 22 September 2003 the applicant was granted victim status in the criminal case and questioned. Her statement was similar to her earlier statement of 18 August 2003. In addition, she stated that she would not be able to identify any of the abductors as their faces had been covered. 94. On 29 October 2003 the investigation was suspended for failure to identify the perpetrators. The applicant was not informed thereof. 95. On 7 December 2004 the Staropromyslovskiy District Court of Grozny declared Mr Diniyev missing. 96. On 12 May 2005 the investigation was resumed. 97. On 28 May 2005 the investigators again questioned the applicant, who reiterated her earlier statements. 98. On 12 June 2005 the investigation was suspended again. The applicant was not informed thereof. 99. On 8 April 2008 the Leninskiy inter-district investigations department in Grozny replied to a request by the applicant for information and provided her with copies of two documents from the investigation file. 100. It appears that on 20 August 2010 she was again granted victim status in the criminal case at her request. 101. On 1 June 2011 the supervising prosecutor criticised the investigators for their failure to take basic steps and ordered that the investigation be resumed. On 7 June 2011 the proceedings were resumed. 102. On 24 June 2011 the investigators again questioned Mr E.R. and the applicant, who reiterated their earlier statements. In addition, the applicant stated that about a month prior to the abduction unidentified armed men had robbed her mother-in-law and had even fired several shots at her. 103. On 7 July 2011 the investigation was suspended. 104. On 14 July 2011 the applicant complained to the Leninskiy District Court of Grozny that the investigation of the abduction had been ineffective and asked for the proceedings to be resumed. On 2 August 2011 the court rejected the applicant’s complaint as the investigation had been resumed earlier the same day. 105. On 2 September 2011 the investigation was suspended again and then resumed on 23 April 2012. 106. The criminal proceedings are still pending. 126. The Government did not contest the essential facts underlying each application, but submitted that the applicants’ allegations were based on assumptions as there was no evidence proving beyond reasonable doubt that State agents had been involved in the alleged abductions, or that the applicants’ relatives were dead. 127. The applicants submitted that it had been established “beyond reasonable doubt” that the men who had taken their relatives had been State agents. In support of that assertion, they referred to evidence contained in their submissions and documents from the criminal investigation files disclosed by the Government. They also submitted that they had each made a prima facie case that their relatives had been abducted by State agents, but the essential facts underlying their complaints had not been challenged by the Government. Given the lack of any news about their relatives for a long time and the lifethreatening nature of unacknowledged detention in Chechnya at the relevant time, they asked the Court to consider their relatives dead. 128. A summary of the principles concerning assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents may be found in Sultygov and Others (cited above, §§ 39396). 129. Witness statements collected by the applicant, along with documents from the investigation file furnished by the Government, confirm that her brother, Mr Nazyrov, was abducted in Gekhi on 20 April 2000 by a group of servicemen during a special operation (see, for example, paragraphs 16 and 20 above). In view of all the material in its possession, the Court finds that the applicant has presented a prima facie case that her brother was abducted by State agents in the circumstances set out by her. 130. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof. 131. Bearing in mind the general principles enumerated above, the Court finds that Mr Nazyrov was taken into custody by State agents on 20 April 2000. Given the lack of any news about him since that date and the lifethreatening nature of such detention (see paragraph 128 above), it also finds that Mr Nazyrov may be presumed dead following his unacknowledged detention. 132. Witness statements collected by the applicant, along with documents from the investigation file furnished by the Government, confirm that her husband, Mr Babuyev, was abducted in Khankala on 30 August 2002 by State servicemen (see, for example, paragraphs 33 and 34 above). In view of all the material in its possession, the Court finds that the applicant has presented a prima facie case that her husband was abducted by State agents in the circumstances set out by her. 133. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof. 134. Bearing in mind the general principles enumerated above, the Court finds that Mr Babuyev was taken into custody by State agents on 30 August 2002. Given the lack of any news about him since that date and the lifethreatening nature of such detention (see paragraph 128 above), it also finds that Mr Babuyev may be presumed dead following his unacknowledged detention. 135. Witness statements collected by the applicants and copies of part of the investigation file submitted by them to the Court confirm that their relative, Mr Kagermanov, was abducted from his home in Gekhi on 4 February 2002 during curfew hours by a group of servicemen during a special operation (see, for example, paragraphs 52 and 53 above). In view of the material in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances set out by them. 136. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof. 137. Bearing in mind the general principles enumerated above, the Court finds that Mr Kagermanov was taken into custody by State agents on 4 February 2002. Given the lack of any news about him since that date and the life-threatening nature of such detention (see paragraph 128 above), it also finds that Mr Kagermanov may be presumed dead following his unacknowledged detention. 138. Witness statements collected by the applicant, along with a small number of documents from the investigation file furnished by the Government, confirm that her husband, Mr Zaynadinov, was abducted in in Shali on 30 July 2002 by a group of servicemen (see, for example, paragraphs 71 and 75 above). In view of all the material in its possession, the Court finds that the applicant has presented a prima facie case that her husband was abducted by State agents in the circumstances set out by her. 139. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof. 140. Bearing in mind the general principles enumerated above, the Court finds that Mr Zaynadinov was taken into custody by State agents on 30 July 2002. Given the lack of any news about him since that date and the lifethreatening nature of such detention (see paragraph 128 above), the Court also finds that Mr Zaynadinov may be presumed dead following his unacknowledged detention. 141. Witness statements collected by the applicant, along with documents from the investigation file furnished by the Government, confirm that her husband, Mr Diniyev, was abducted in Grozny on 16 August 2003 by a group of servicemen (see, for example, paragraphs 88 and 92 above). In view of all the material in its possession, the Court finds that the applicant has presented a prima facie case that her husband was abducted by State agents in the circumstances set out by her. 142. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof. 143. Bearing in mind the general principles enumerated above, the Court finds that Mr Diniyev was taken into custody by State agents on 16 August 2003. Given the lack of any news about him since that date and the lifethreatening nature of such detention (see paragraph 128 above), it also finds that Mr Diniyev may be presumed dead following his unacknowledged detention. 144. The Court finds that in all the cases presently before it, the applicants’ allegations are supported by both the witness statements collected by them and the domestic investigations. In their submissions to the authorities, the applicants maintained that their relatives had been abducted by State agents. The investigative authorities accepted as fact the primary versions of events presented by the applicants and took steps to check whether State servicemen were involved in the abductions. 145. In summary, the facts of all the applications contain sufficient evidence to enable the Court to make findings about the carrying out of security operations and thus about the State’s exclusive control over the detainees (see, among many other authorities, Aslakhanova and Others, cited above, § 114). The Government’s arguments stand in contradiction to the evidence reviewed by the Court and are insufficient to discharge them of the burden of proof which has been shifted to them in such cases. 146. The detention in life-threatening circumstances of Mr Badrudi Nazyrov, Mr Muma Babuyev, Mr Ruslan Kagermanov, Mr Eduard Zaynadinov and Mr Ayndi Diniyev, together with the lack of any news about them for a number of years, leads the Court to conclude that they may be presumed dead. | 1 |
test | 001-144113 | ENG | FIN | CHAMBER | 2,014 | CASE OF PIRTTIMÄKI v. FINLAND | 4 | No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1955 and lives in Jyväskylä. 6. The applicant owned shares in a limited liability company. In 2001 and 2002 a tax inspection was conducted in the company for the tax years 1996 to 2001. The tax inspectors found that the company was not owned by four different English companies but in reality the applicant and three other Finnish persons owned it, with equal shares. 7. On 26 February 2003 additional taxes and tax surcharges (veronkorotus, skatteförhöjning) were imposed on the company for the tax years 1997 to 1999 and 2001. 8. The company sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden). 9. On 16 March 2005 the Tax Rectification Committee partly accepted, partly rejected the company’s applications. 10. The applicant, in the name of the company, appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), claiming that he owned the whole company through four English companies. 11. On 28 February 2007 the Helsinki Administrative Court rejected the company’s appeal and upheld the taxation decisions. It found that there was no proof that the English companies had in fact been sold to the applicant but, on the contrary, the case documents showed that in reality all four Finnish persons behind the English companies had equally exercised their powers in the company. 12. On 10 August 2009 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused the company leave to appeal. 13. In connection with the company taxation, additional taxes and tax surcharges were also imposed on the applicant as he had received disguised dividends from the company. He was to pay 8,500 Finnish marks (FIM) in tax surcharges for the tax year 1997 (1,429.60 euros, EUR), FIM 5,000 for the tax year 1998 (EUR 1,021.43), FIM 6,000 for the tax year 1999 (EUR 1,211.64) and FIM 10,000 for the tax year 2001 (EUR 1,904.50). 14. The applicant sought rectification from two local Tax Rectification Committees. 15. On 25 April 2005 the Sisä-Suomi Tax Rectification Committee rejected the applicant’s applications in respect of the tax years 1998, 1999 and 2001. 16. On 31 May 2005 the Kaakkois-Suomi Tax Rectification Committee rejected the applicant’s application in respect of the tax year 1997. 17. The applicant appealed to the Administrative Court, claiming that there was no reason to impose additional taxes and tax surcharges as he was the only shareholder in the company. 18. On 16 April 2007 the Hämeenlinna Administrative Court rejected the applicant’s appeal against the decisions concerning the tax years 1998, 1999 and 2001. It found that in reality the company was owned by four Finnish persons with equal shares and therefore the taxation decisions were not incorrect. 19. On 30 December 2008 the Kouvola Administrative Court rejected the applicant’s appeal against the decision concerning the tax year 1997. It found, like the other courts, that the applicant could not be regarded as the sole owner of the company. 20. On 10 August 2009 the Supreme Administrative Court refused the applicant leave to appeal against any of the above-mentioned tax decisions. 21. On 7 March 2002, on the basis of the tax inspection, the tax authorities requested the police to investigate the matter. The applicant was arrested on 4 June 2002 and his office was searched the same day. He was questioned by the police for the first time on 5 June 2002 and was released thereafter. The pre-trial investigation was concluded on 29 December 2006. 22. On 11 July 2008 the public prosecutor pressed charges against the applicant. The applicant was accused, on the company’s count, of an accounting offence (kirjanpitorikos, bokföringsbrott) for having introduced incorrect and misleading information in the company bookkeeping between 1997 and 2001, and of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) for having given incorrect information to the tax authorities between 1998 and 2002. As a result, the company had evaded EUR 59,335.69 in taxes. 23. On 30 September 2009 the Kotka District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged and sentenced him to a one year suspended sentence. As to the length of the proceedings, the court noted that the proceedings had lasted by then 7 years and 4 months. The proceedings had been unusually long and the length was not attributable to the applicant. The proper sentence for the applicant would have been imprisonment for one year but due to the excessive length it was turned into a suspended sentence. 24. The applicant appealed to the Appeal Court (hovioikeus, hovrätten), requesting that the charges be dropped as he had already been convicted in the matter: tax surcharges had been imposed on him and a final decision delivered. 25. On 2 July 2010 the Kouvola Appeal Court upheld the District Court’s judgment. As to ne bis in idem, the court found that the decisions containing tax surcharges had become final on 10 August 2009. As the charges had been pressed before that, on 11 July 2008, there was no impediment to the examination of the case as the charges had been brought before the administrative proceedings became final. As to the merits, the court found that the applicant’s true position in the company had been concealed in order to avoid his responsibilities and that in reality he had been as much involved as the other shareholders. He could thus be held responsible for the company’s bookkeeping as well as the incorrect information given to the tax authorities. 26. By letter dated 30 August 2010 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court and claiming in particular that he had been convicted twice in the same matter. He also pointed out that the proceedings had already lasted for more than 8 years. 27. On 14 December 2010 the Supreme Court refused the applicant leave to appeal. | 0 |
test | 001-179414 | ENG | MDA | COMMITTEE | 2,017 | CASE OF IALAMOV v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Ledi Bianku;Stéphanie Mourou-Vikström | 6. The applicant was born in 1986 and lived in Chisinau. 7. On 6 April 2009 he was arrested on a charge of murder. Later he was also charged with several counts of theft. 8. The applicant was held in pre-trial detention until 21 January 2011, when he was acquitted of the murder charges but convicted for theft and sentenced to one year and six months’ imprisonment. In view of the duration of his pre-trial detention, he was immediately released. 9. During the trial the applicant’s detention was extended periodically. One of the extensions concerned the period between 1 and 30 September 2009. On 28 September 2009, two days before the expiry of that period, the prosecutor in charge of the case applied for another extension. The applicant argued in his submissions, inter alia, that such an order was not allowed because the prosecutor had failed to comply with the provisions of Article 186 § 6 of the Code of Criminal Procedure, that is that such an application had to be lodged at the latest five days before the expiry of the detention period. Nevertheless, the prosecutor’s application was accepted by the court on 29 September 2009 and the applicant’s pre-trial detention was prolonged by twenty-five days. An appeal by the applicant was later dismissed by the Court of Appeal without any consideration being given to his argument set out above. | 1 |
test | 001-169650 | ENG | RUS | CHAMBER | 2,016 | CASE OF SHIOSHVILI AND OTHERS v. RUSSIA | 4 | Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);No violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment;Positive obligations) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 9. The first applicant, Ms Lia Shioshvili, was born in 1977 and lives in Gurjaani (Georgia). She is the mother of the second, third, fourth and fifth applicant, all Georgian nationals and born respectively in 1995, 1997, 2000 and 2004. 10. During the period from the end of September 2006 to the end of January 2007 identity checks of Georgian nationals residing in Russia were carried out in the streets, markets and other workplaces as well as at their homes. Many were subsequently arrested and taken to police stations. After a period of custody in police stations, they were grouped together and taken by bus to a court, which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from Russian territory. Subsequently, some were taken to detention centres for foreigners where they were detained for varying periods of time, and then taken by bus to various airports in Moscow, and expelled to Georgia by aeroplane. Some of the Georgian nationals against whom expulsion orders were issued left the territory of the Russian Federation by their own means (for further details as to the background of the case see Georgia v. Russia (I), cited above, § 45). 11. On 29 May 1998 the first applicant, her husband and her two children arrived in the Russian Federation for the first time. At that time there was no visa requirement for Georgian citizens in place. In the subsequent years the first applicant, her husband and the children had been back and forth several times between the Russian Federation and Georgia. 12. In 2003 the first applicant and her children again entered the territory of the Russian Federation with a visa valid for one month. They settled together with their husband/father in the village of Karinskoye, in the Odintsovski district of Moscow city. 13. In September 2004 the first applicant gave birth to her fourth child, the fifth applicant. The first applicant did not apply for a birth certificate for the fifth applicant at that time, since she was unlawfully residing in Russia. 14. At the beginning of October 2006, the applicants moved to the city of Ruza in order to avoid expulsion. 15. On 18 October 2006 a police officer visited the applicants’ family home in Ruza and requested the first applicant to produce her identity papers. Owing to the absence of visa documents the officer asked all applicants to follow him to the local police station, where an administrative offence report was drawn up. The applicants left the police station after approximately 30 minutes. The police officer informed the first applicant that a court hearing concerning her case would take place soon. He further advised her to apply for a birth certificate for the fifth applicant. 16. On 25 October 2006 the Georgian Consulate in Moscow issued a temporary birth certificate for the fifth applicant, valid until 14 November 2006. 17. On 7 November 2006 a hearing before the Ruzskiy District Court of the Moscow Region took place, following which an expulsion decision was issued. The court only ordered the expulsion of the first applicant, even though mentioning in its decision that she was mother to four children. The hearing lasted about ten minutes and despite the first applicant’s limited knowledge of the Russian language, she was not assisted by an interpreter. 18. On 20 November 2006, after having received the expulsion decision of 7 November 2006 all five applicants left Moscow. Due to suspended air, rail, road, sea and postal communications between the Russian Federation and Georgia, the applicants took the train from Moscow to Baku (Azerbaijan). The first applicant was eight months pregnant at the material time and her four minor children were eleven, nine, six and two years old. 19. According to the applicants their train was stopped by Russian migration officers on 22 November 2006 at approximately 10.30 pm near the Russian/Azerbaijani border and all Georgian nationals were asked to get off the train with their belongings. The officers collected the applicants’ identity and travel documents and confiscated 400 USD from the first applicant, which allegedly had not been declared. The officers informed all the Georgians including the applicants, that there were various irregularities in their documents and that they could not continue their journey, whereas all nonGeorgians could resume their journey on the train. 20. The five applicants were then requested to walk with the other Georgian nationals to a bus, which went to Derbent. Two migration officers escorted the group but would not inform them of the authorities’ intention nor where the group was being taken. Due to the cold weather and her advanced pregnancy the walk and the bus ride were particular difficult for the first applicant. In particular, since she had to carry a suitcase and her youngest child. Her oral complaints to the officers about these circumstances were of no avail. 21. Once the group arrived in Derbent, the migration officers asked the group to accompany them to the migration service office. The first applicant was unable to continue walking and waited outside for two hours with her children. She was worried for the health of her minor children and for the unborn child. 22. On 23 November 2006, at about 3 am, the group was taken to Derbent train station for the night. They had to pay 500 rubles to the police officers, who guarded them, to be allowed to go to the toilet. No water or food was provided. 23. At daybreak, the police officers asked the group to go to the migration service office again, where they spent the whole day waiting outside at a temperature of 5o C. 24. In the evening the first applicant’s health deteriorated, her children were crying and coughing and no shelter, water or food was offered by the authorities. Finally, the group of Georgians rented an unheated, four-room basement flat in Derbent, for which the first applicant had to pay 200 rubles per day for her and the children. Three women and six children from the group of Georgians, including the applicants, settled in one room, which had four beds. The remaining three rooms were occupied by more than 20 Georgian men. 25. According to the applicants the migration officers regularly visited the flat, but the first applicant’s complaints about her worsening health were to no avail. 26. On 29 November 2006 the first applicant tried to cross the Russian/Azerbaijani border with her three eldest children, the second, third and fourth applicant. The fifth applicant stayed with the other Georgians, as her birth certificate had expired on 14 November 2006. However, they were stopped by the customs officers who indicated that the court’s expulsion decision only concerned the first applicant and not her children. They were subsequently sent back to Derbent. 27. The first applicant’s health worsened, she suffered from a cold and had a fever, became depressed and had repeated asthma attacks. 28. On 3 and 4 December 2006, after having gone back and forth to the migration service office, and with the help of an employee from the consulate service of the Georgian Embassy in Moscow, the first applicant finally obtained transit visa for her children and all other necessary documents, so that all five applicants could leave for Georgia. 29. Several national broadcasting television companies reported on the Georgians’ situation in Derbent on a daily basis between 1 and 7 December 2006. 30. According to the Government the border control services, which conducted immigration controls in the trains going to the Republic of Azerbaijan, did not bring any Georgian nationals to the migration services on 22 or 23 November 2006. However, on 23 November 2006 the name of the fifth applicant was registered by the Line Division of the Interior at Derbent station in the register of passengers put off trains. She was, however, registered as a Russian national. The other four applicants were not registered in the aforementioned register. 31. The Government further explained that according to the normal procedure persons, who are put off international trains, are invited to the Police Line Division to include their personal data in the register. These persons, however, are neither coerced to do so, nor accompanied on their route to the station, nor passed over to the migration service department. 32. Further investigations by the Russian authorities revealed, according to the Government, that the first applicant temporarily resided in a house in Derbent with the consent of the house owners. According to the testimony of the house owners the first applicant lived there free of charge, was not accompanied by children and no police officer or other official visited the first applicant in the house. 33. On 5 December 2006 a group of 30 Georgians, including the applicants, travelled to the Russian/Azerbaijani border in two buses that they had hired. At the border the customs officers checked the documents for several hours, while the applicants had to wait standing outside. 34. With another bus the group travelled through the city of Baku to the Azerbaijani/Georgian border. The last 5 kilometres to the border the applicants had to walk, as the bus driver had asked them to get off the bus: The first applicant and her youngest child, the fifth applicant, were able to take a taxi to the border, but the three other applicants had to continue walking; the temperature was below 3o C. 35. After having arrived in Georgia, the first applicant’s health was particularly bad. She suffered from a severe cough and fever, her right leg had grown numb and her general condition was extremely weak. Owing to her financial situation and the lack of health insurance the applicant did not visit a hospital right away. On 11 December 2006 a pregnancy examination showed that the pregnancy was progressing and that the fetus was well. 36. On 12 December 2006, the first applicant’s health worsened, she had an asthma attack and severe abdominal pain. 37. On 14 December 2006, the first applicant was taken to hospital where she gave birth to a stillborn child the next day. 38. According to the death certificate issued by the Ministry of Health and Social Affairs on 15 December 2006, the child died as a result of “intranatal hipoqsy” caused by a viral infection. The birth history no 364/12, issued on the same date, stated that “the stress experienced by the pregnant mother during the expulsion could be considered a reason for the child’s death”. 39. During the following months, the first applicant suffered from severe depression and panic attacks. Furthermore, the fourth applicant developed a very bad cough and caught pneumonia. The fifth applicant, the first applicant’s youngest child, was deeply affected psychologically by the expulsion: she was constantly crying and afraid of other people and diagnosed with “behavioral disorder”. 40. On 23 July 2008, the first applicant lodged a complaint with the General Prosecutor’s office of the Russian Federation. She directly mentioned violations of Articles 3 and 14 of the Convention and requested a thorough investigation and the punishment of those responsible. 41. On 9 October 2008, the first applicant’s representative received an answer, informing him that the complaint had been forwarded to the Prosecutor of Derbent and that he would be notified about further procedural actions taken in this respect. 42. However, he received no further information from the Russian authorities. 48. The Court observes that it is confronted with a dispute over the events starting from 22/23 November 2006 and reiterates that the proceedings before the Court are adversarial in nature. It is therefore for the parties to substantiate their factual arguments by providing the Court with the necessary evidence. Whereas the Court is responsible for establishing the facts, it is up to the parties to provide active assistance by supplying it with all the relevant information (see Lisnyy and others v. Ukraine and Russia (dec.), nos. 5355/15, 44913/15, 50853/15, § 25, 5 July 2016, with further references). 49. The Court must therefore reach its decision on the basis of the evidence submitted by the parties. In the proceedings before it, there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005VII). 50. The Court notes that the applicants submitted documents regarding their medical history and confirming the death of the first applicant’s unborn child. In relation to the events in question they provided copies of their passports and of the train tickets and records from the before mentioned television reports (see paragraph 29 above). In addition they submitted the complaint to the General Prosecutor’s office as well as its reply. 51. The Government provided the Court with the expulsion decision of the Ruzskiy District Court of the Moscow and the correlating administrative offence report. 52. In regards to the parties’ submissions and the provided documents the Court notes the following: The Government confirmed that the fifth applicant, a two year old child, was put off the train and registered by the Line Division of the Interior at Derbent station. Having particular regard to the age of the fifth applicant, this fact allows the inference that the other applicants accompanying the fifth applicant were also put off the train but not registered by the Line Division of the Interior. This inference is further corroborated by the television reports, showing the applicants in Derbent, and the applicants’ detailed submission to the Court as well as to the Russian General Prosecutor’s office. 53. In sum the Court finds it established that the applicants’ train travel from Moscow to Baku was interrupted by Russian authorities, that the applicants were put off the train in the night of 22/23 November 2006 and that they awaited the issuance of transit visa in Derbent until the 4 December 2006. | 1 |
test | 001-164919 | ENG | RUS | COMMITTEE | 2,016 | CASE OF DEVTEROV v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 4. The applicant was born in 1980 and lives in Kushchevskaya, Krasnodar Region. 5. On 9 December 2010 the applicant was charged in absentia with accessory to murder and his name was put on the wanted list. 6. On 16 December 2010 the Kushchevskiy District Court of the Krasnodar Region issued a detention order against the applicant in absentia. 7. On 21 January 2011 the applicant reported to the police station where he was arrested. 8. On 29 March 2011 the District Court remanded the applicant in custody. In particular the court held, as follows: “... [the applicant] is suspected of having committed an extremely serious offence entailing 8 to 20 years’ custodial sentence or life imprisonment. As it has been established that during investigation [the applicant] stated that he intended to leave Russia and talked on the phone with a person living in Geneva ..., if released, [the applicant] might abscond, commit another offence, and threaten witnesses or other parties to criminal proceedings, destroy evidence or in any other way interfere with the investigation...”. 9. On 19 April 2011 the District Court extended the applicant’s pre-trial detention on the following grounds: “[The applicant] is accused of an extremely serious offence entailing 10 years’ imprisonment. The case materials contain evidence confirming his involvement in crimes. Moreover, ... he may abscond or, if released, commit other crimes. These circumstances existed as of the date of [the applicant’s] placement into custody and have not changed at the present time. ... Taking into account that it is necessary to conduct numerous investigative activities, the court shall grant the investigator’s request [to extend the applicant’s detention]”. 10. The applicant remained in detention pending investigation and trial. The courts extended his detention, using the above formula. The courts referred also to the applicant’s family status, personality, state of health, possibility to put pressure on witnesses and interfere with the investigation, absence of job. In particular, on 25 January 2012 the court held as follows: “... taking into account the personality of the accused, his family status, state of health and other circumstances, the court shall grant the investigator’s request and extend [the applicant’s] detention”. 11. The applicant lodged appeals against some detention orders but the courts rejected them. 12. On 2 November 2011 the applicant was additionally charged with membership in a criminal gang, six counts of unlawful transportation of fire arms and ammunition, attempted murder and murder. 13. In October 2012 the applicant, along with two co-defendants, was committed to stand trial before the Krasnodar Regional Court. 14. On 7 June 2013 the applicant was released. 15. On 19 June 2013 the Krasnodar Regional Court acquitted the applicant of all charges and held that the applicant be informed of the right to rehabilitation. 16. On 30 September 2013 the Supreme Court of the Russian Federation upheld the judgment of 19 June 2013 on appeal. 17. The applicant brought a claim against the Federal Treasury seeking compensation for pecuniary damage (legal expenses). 18. On 3 June 2014, the Regional Court awarded the applicant 680,600 Russian roubles as reimbursement of legal fees. | 1 |
test | 001-167493 | ENG | HUN | COMMITTEE | 2,016 | CASE OF KÉZDISZENTKERESZTI BÍRÓ v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 4. The applicant was born in 1948 and lives in Budapest. 5. On 9 March 2006 the applicant submitted a request for an increase of her disability pension before the Budapest Governmental Authority (Directorate of Pension Insurance), which dismissed her claim on 21 August 2006. The applicant lodged an appeal against the decision on 10 October 2006. The Central-Hungarian Regional Insurance Directorate acting as a second-instance authority upheld the first-instance decision on 4 January 2007. 6. The applicant sought the judicial review of the second-instance decision within the statutory time-limit. She submitted her statement of claim on 9 February 2007 to the first-instance administrative authority, in line with the applicable procedural laws. 7. In the absence of any developments in the case, the applicant notified the first-instance administrative authority about upholding her claim on 18 March 2010. The first-instance administrative authority subsequently forwarded the applicant’s statement of claim to the Budapest Labour Court on 20 July 2010. 8. The Budapest Labour Court dismissed the applicant’s claim on 14 June 2011. | 1 |
test | 001-150653 | ENG | UKR | CHAMBER | 2,015 | CASE OF A.V. v. UKRAINE | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1982 and lives in Kyiv. 6. On the evening of 29 December 2006 the applicant was arrested on a street in Kyiv and taken to the Shevchenkivskyy District Police Department of Kyiv (“the police department”), where he was asked to empty his pockets in the presence of two attesting witnesses. The attesting witnesses were two unemployed men. The applicant produced small bags containing cocaine. 7. According to the applicant, during his arrest on the street some police officers struck him down, handcuffed him and escorted him to their car, where they allegedly planted drugs (small bags of cocaine) on him and continued to beat him up. The assault was accompanied by threats of sexual abuse, and continued until he arrived at the police department. 8. At 10 p.m. on 29 December 2006 the police took the decision to arrest and detain the applicant under Article 263 of the Administrative Offences Code for violating drug circulation rules, an administrative offence pursuant to Article 44 of that Code. 9. The applicant was then interviewed. He wrote a confession admitting that he had unlawfully bought cocaine for personal use. According to him, he was forced to make the confession, which was dictated to him by one of the police officers. 10. After the confession he was placed in a police cell. 11. According to the applicant, during his stay in the police department he was not given enough food or water. He was held in bad sanitary and hygienic conditions. Allegedly, he was locked for one night in a toilet of the police department, which was dirty and stinking. He felt unwell and had acute lower back pain. 12. On 2 January 2007 the police received a specialist report stating that the substance seized from the applicant had contained 1.18 grams of cocaine. 13. That day the police investigator instituted criminal proceedings against him for illegally purchasing and storing narcotic drugs in large quantities, an offence pursuant to Article 309 § 2 of the Criminal Code. 14. At 5.25 p.m. the investigator, relying on Articles 106 and 115 of the Code of Criminal Procedure, took a decision to arrest and detain the applicant on suspicion of the above-mentioned offence. The decision authorised the applicant’s preliminary detention for another seventy-two hours. 15. The applicant was also questioned that day and gave details of the circumstances surrounding his purchase of the drugs. According to him, his lawyer, who had been hired by his parents, joined him when the interview had gone on for a considerable length of time. In the lawyer’s presence he complained of being in a poor state of health, and added that one of his acquaintances had instigated purchasing the drugs. 16. According to the Government, on 2 January 2007 the applicant was given a medical examination and diagnosed with intercostal neuralgia. His state of health was considered satisfactory. 17. On 5 January 2007 the prosecutor refused to approve the investigator’s application to have the applicant placed in pre-trial detention. The investigator then decided to release him on a written undertaking not to abscond. 18. On the afternoon of 5 January 2007, following his release, the applicant was examined by an ambulance team, who noted that he was suffering from acute pyelonephritis (a severe kidney infection) and lumbosacral radiculitis (sciatica). 19. On 6 and 8 January 2007 he was examined by ambulance teams again, who diagnosed him with acute radiculitis and possible acute pyelonephritis. 20. Between 9 and 19 January 2007 the applicant was provided with inpatient treatment at the neurological department of Kyiv Hospital no. 1. He was diagnosed with lumbar spinal osteochondrosis (остеохондроз поперекового відділу хребта), vertebrogenic lumbodynia (вертеброгенна ломбаргія) and pain and muscular tonic syndrome (больовий та м’язово-тонічний синдром). 21. On 16 January 2007 he was examined by a psychiatrist, who noted that he was showing signs of post-traumatic stress disorder. 22. On 22 January 2007 the Shevchenkivskyy District Court of Kyiv (“the District Court”) considered the applicant’s complaint concerning the unlawfulness of his arrest and detention under Article 106 of the Code of Criminal Procedure. It found that the investigator’s decision of 2 January 2007 to arrest and detain him as a criminal suspect had been unlawful in so far as the grounds for his arrest in such a capacity had existed as from 29 December 2006. 23. On 6 February 2007 the applicant, assisted by a lawyer, denied the charges and refused to answer any of the investigator’s questions. 24. On 9 February 2007 the Shevchenkivskyy District prosecutor’s office refused to institute criminal proceedings against the police officers in connection with the applicant’s allegations of a violation of his rights during his arrest and detention. According to the decision, the officers’ actions lacked the elements of an offence. It referred to explanations given by the police investigator in charge of the applicant’s criminal case and to the official custody records concerning his detention. 25. On 1 March 2007 the applicant’s father complained to the investigator that there had been numerous violations of his son’s rights, including an extraction of his confession through pressure and unlawful arrest and detention. 26. On 7 March 2007 the applicant, assisted by his lawyer, denied the charges and refused to answer any of the investigator’s questions. 27. On 16 March 2007 he complained to the prosecutor of failure on the part of the investigative authorities to carry out an appropriate examination of the circumstances in which he had been arrested and questioned in the initial period of the investigation. 28. On 4 April 2007 the prosecutor replied that the criminal case against the applicant had been referred to the District Court, and that he could raise the relevant issues during the trial. 29. On 15 June 2007 a linguistic specialist, in reply to a request by the applicant, issued a report stating that the confession of 29 December 2007 had been written by the applicant with the assistance of another person who had dictated the text. 30. During a court hearing on 18 June 2007 the applicant requested that the linguistic specialist report be admitted to the case file. He further requested that the statements he had made on 29 December 2006 and 2 January 2007 be excluded, as they had been obtained in breach of his rights. The court rejected his requests. 31. The applicant denied the charges throughout the trial. He insisted that the drugs had been planted on him, and that he had been psychologically pressured and physically ill-treated by the police officers. The court then questioned the officers and investigators concerned, who denied the applicant’s allegations. The court also questioned the two attesting witnesses who had been present when the applicant had taken the drugs from his pocket. They stated that when he had produced the little bags in their presence, he had told them they contained cocaine; they had not noticed any visible injuries on him at the time. 32. On 8 July 2008 the District Court found the applicant guilty of illegally purchasing and storing narcotic drugs in large quantities, and sentenced him to three years’ imprisonment. The sentence was suspended conditional upon two years’ probation. In reaching its conclusions, the court had regard to the witness statements and material, documentary and expert evidence. It considered that there was no indication that the applicant had been ill-treated or had suffered a violation of his procedural rights at the time of making his initial self-incriminating statements. 33. The applicant appealed, claiming that the key evidence had been obtained during his unlawful detention and ill-treatment, and that he had not been given access to a lawyer after the arrest. 34. On 7 November 2008 the Kyiv Court of Appeal upheld the judgment of the first-instance court. It noted that in the applicant’s confession of 29 December 2006 he had explained in detail how he had committed the crime. The Court of Appeal further noted that on 2 January 2007 the applicant had also admitted he was guilty. 35. On 22 May 2009 the Supreme Court, sitting in private, dismissed a cassation appeal by the applicant on the grounds that his guilt had been well established by the evidence in the case file, including the original self-incriminating statements he had made. On 2 June 2009 his lawyer received a copy of that decision. | 1 |
test | 001-150424 | ENG | ROU | ADMISSIBILITY | 2,014 | MUREŞAN v. ROMANIA | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Dănuț Augustin Mureşan, is a Romanian national, who was born in 1964 and lives in Oradea. He was represented before the Court by Mr R. Doseanu, a lawyer practising in Oradea. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. At the relevant time the applicant, a career military officer (a major), was the liaison person in charge of supervising and approving works being undertaken for the renovation and modernisation of his military base. 5. On 28 April 2004 the military branch of the Anti-Corruption Prosecutor’s Office committed the applicant for trial on several counts of corruption concerning public tenders. B.V., a civilian, was also indicted by the prosecutor for bribing the applicant. The prosecutors in charge of the indictment were career officers: a colonel-magistrate and a captainmagistrate. B.V. failed to appear in court throughout the proceedings. The summons had been sent to an address in Romania of which his counsel had informed the courts. However, according to information received by the courts from the authorities, B.V. was living in the United States of America (“the USA”) at that time. 6. The Bucharest Regional Military Tribunal, sitting in a panel composed of two colonel-magistrates, examined the case as a firstinstance court. It heard testimony from witnesses for the prosecution and allowed two witnesses for the defence to be called. However, those two witnesses failed to appear. The applicant gave statements before the court. 7. On 10 September 2004 the Military Tribunal found the applicant guilty as charged and imposed a suspended sentence of three years and six months. 8. The parties appealed. The applicant maintained his innocence and argued that the first-instance court had made an incorrect interpretation of the evidence in the file. 9. The Bucharest Military Court of Appeal, sitting in a panel composed of two colonel-magistrates, gave judgment on 3 May 2005. In an extensively reasoned decision it dismissed the appeals and upheld the firstinstance judgment. 10. The parties appealed on points of law. The applicant reiterated the representations he had made in the appeal proceedings, and in addition argued that B.V. should be summoned at his address in the USA and questioned by the court, as his statements could have an influence on the applicant’s situation. 11. In a final decision of 15 March 2006 the criminal section of the High Court of Cassation and Justice dismissed the appeal lodged by the applicant, as it considered that the lower courts had correctly established the facts of the case and classified the crimes in law. It reiterated the arguments advanced by the Military Court of Appeal concerning the claims raised by the applicant in his previous appeal. It also considered that the evidence in the file was sufficient to secure the applicant’s conviction and that there were no doubts that could have been clarified by statements from B.V. The High Court allowed the appeal lodged by the prosecutor’s office and ordered that the applicant serve his sentence in detention. | 0 |
test | 001-181279 | ENG | MNE | COMMITTEE | 2,018 | CASE OF RAJAK 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. The applicant was born in 1961 and lives in Bijela, Montenegro. 5. On 1 March 2012 the Herceg Novi First Instance Court rendered a judgment in favour of the applicant and ordered the applicant’s employer “Vektra Boka” AD Herceg Novi (hereinafter “the debtor”) to carry out a reallocation of plots for the construction of apartments. This judgment became final on 21 December 2012. 6. On 15 January 2013 the applicant requested enforcement of the above judgment and the Herceg Novi First Instance Court issued an enforcement order on 31 January 2013. 7. On 12 June 2015 the Commercial Court opened insolvency proceedings in respect of the debtor. 8. On 28 January 2016 the Herceg Novi First Instance Court transferred the case to the Commercial Court for further action. 9. On 22 March 2016 the Commercial Court suspended (obustavio) the enforcement due to the opening of the insolvency proceedings, which decision became final on 11 May 2016. 10. The judgement in question remains unenforced to the present day. 11. On 8 February 2013 the applicant instituted administrative proceedings seeking, on the basis of the above judgment, the removal of competing titles from the Land Register. 12. On 29 July 2015 the Real Estate Directorate terminated (prekinuo) the administrative proceedings because the Commercial Court had commenced insolvency proceeding in respect of the debtor. 13. On 7 September 2015 the applicant submitted an objection against the above decision. This objection was rejected as being out of time by the Real Estate Directorate on 5 October 2015. 14. The administrative proceedings are still pending. 15. On an unspecified day in 2003, the applicant instituted separate civil proceedings against the debtor, as his former employer, seeking reinstatement and damages. Following three remittals, on 3 March 2014 the Herceg Novi First Instance Court rendered a judgment in the applicant’s favour. 16. On 22 September 2015 the High Court upheld this judgment on the merits, but quashed it as regards the costs. 17. On 31 October 2016 the Herceg Novi First Instance Court transferred the case to the Commercial Court for further action due to the commencement of the insolvency proceedings in respect of the debtor. 18. On 22 February 2017 the Commercial Court ruled partly in favour of the applicant regarding the costs. 19. The parties did not inform the Court about when the Commercial Court’s decision became final and was served on the applicant. | 1 |
test | 001-146411 | ENG | HUN | COMMITTEE | 2,014 | CASE OF GAJCSI v. HUNGARY | 4 | Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} | András Sajó;Helen Keller;Robert Spano | 5. The applicant was born in 1955 and lives in Kaposvár. 6. The applicant suffers from a so-called psycho-social disability. On 3 October 2006 the Court found a violation of Article 5 § 1 concerning his psychiatric detention (see Gajcsi v. Hungary, no. 34503/03). 7. On 12 January 2000 the Fonyód District Court placed the applicant under partial guardianship. As an automatic consequence flowing from Article 70(5) of the Constitution, as in force at the relevant time, his name was deleted from the electoral register. 8. On 8 July 2008 the Kaposvár District Court reviewed the applicant’s situation and restored his legal capacity in all areas but health care matters. This change, however, did not restore his electoral rights. 9. The applicant could not vote in the general elections held in Hungary on 11 April 2010, due to the restriction on his legal capacity which resulted in the deprivation of his electoral rights. | 1 |
test | 001-147276 | ENG | HUN | CHAMBER | 2,014 | CASE OF MATÚZ v. HUNGARY | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Pecuniary and non-pecuniary damage - award | András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 4. The applicant was born in 1963 and lives in Balassagyarmat. 5. The applicant is a television journalist. From 15 February 2001 he was employed by the State television company (Magyar Televízió Zrt.). Following an amendment of his work contract on 10 July 2002, he was appointed for an indeterminate period. At the material time, he was chairman of the Trade Union of Public Service Broadcasters (Közszolgálati Műsorkészítők Szakszervezete), active within the television company. The applicant was in charge, as editor and presenter, of a periodical cultural programme called Éjjeli menedék (Night Shelter) which involved interviews with various figures of cultural life. 6. According to point 10 of his work contract, the applicant was bound by professional confidentiality. He was obliged not to reveal any information acquired in connection to his position the disclosure of which would be prejudicial to either his employer or any other person. According to the labour contract, he also took note of the fact that a breach of this obligation would lead to the immediate termination of his employment. 7. Following the appointment of a new cultural director the applicant had apparently contacted the television company’s president, since he had perceived the new director’s conduct in modifying and cutting certain contents of Éjjeli menedék as censorship. He had received no response to his complaint. 8. On 6 June 2003 the editor-in-chief of Éjjeli menedék addressed a letter to the board of Magyar Televízió Zrt. stating, amongst other things, that the appointment of the new cultural director had led to censorship of the programme by his suggesting modifications to, and the deletion of, certain contents. On 19 June 2003 an article appeared in the online version of a Hungarian daily (Magyar Nemzet Online), containing the editor-in-chief’s letter as well as a statement of Magyar Elektronikus Újságírók Szövetsége (Hungarian Union of Electronic Journalists), inviting the board to end censorship in the television company. 9. In 2004 the applicant published a book entitled “Az antifasiszta és a hungarista – Titkok a Magyar Televízióból” (The Antifascist and the Hungarista - Secrets from the Hungarian Television). Each chapter of the book contained an extract from different interviews recorded in 2003, which had not been broadcast in the cultural programme, apparently on the basis of the instructions of the cultural director in question. Along with the extracts, the applicant included numerous in-house letter exchanges between the cultural director and the editor-in-chief concerning the suggested changes in the programme. Moreover, the chapters contained a short introduction or summary of the events, reflecting the applicant’s personal opinion. The preface of the book said that it would contain documentary evidence of censorship exercised in the State television company. It called on the readers to decide whether the documents indicated the cultural director’s legitimate exercise of his supervisory functions or an interference with the broadcaster’s freedom of expression. 10. On 11 November 2004 the television company dismissed from employment the applicant and the editor-in-chief of Éjjeli menedék, with immediate effect. The reason for the applicant’s summary dismissal was that, by publishing the book in question, he had breached the confidentiality clause contained in his labour contract. 11. The applicant challenged his dismissal in court. He argued, inter alia, that he had received the in-house letter-exchange in connection with his position as the chairman of the trade union, in order for him to take steps against the alleged censorship at the television company, and that he had published the impugned book in that capacity. 12. In its judgment of 8 April 2008 the Budapest Labour Court dismissed the applicant’s action, stating that he had breached his obligations under point 10 of his work contract by publishing information about his employer without its consent. The court also found that the applicant’s position as chairman of the trade union did not exempt him from the duty of confidentiality. 13. The applicant appealed, arguing that the publication of the book had not in any way prejudiced his employer or any other person and that he had not acquired the published information in connection with his position but in his capacity as trade union chairman. In that position, and in representation of the interests of his colleagues, he was obliged to act against the censorship within the television company. Thus, according to the applicant, the conditions of dismissal, as stipulated in point 10 of his labour contract, had not been fulfilled. 14. On 13 February 2009 the Budapest Regional Court dismissed the appeal on the same grounds as the Labour Court, adding that the publication of the book might have had a certain detrimental effect on the television company’s reputation. Furthermore, in the Regional Court’s opinion, the impugned measure had not constituted an abuse of rights on the employer’s side, since the applicant had voluntarily agreed to the restriction of his freedom of expression by signing his labour contract. 15. The applicant pursued a petition for review before the Supreme Court. He argued that he had been unlawfully dismissed in that his conduct, namely to inform the public about censorship at the State television company in a book – which was a last-ditch option given that his efforts vis-à-vis the management to have the matter investigated had been to no avail – should have been regarded as an exercise of his freedom of expression rather than an unlawful breach of his labour contract, especially in view of the fact that the allegation of censorship had not been refuted. 16. On 26 May 2010 the Supreme Court found against the applicant. Referring to the applicant’s submission concerning freedom of expression, it held that the scope of the case did not extend beyond the examination of the applicant’s breach of his labour obligations. In the court’s view, the applicant had indeed breached the contract by means of the unauthorised publication of internal documents of his former employer. The court expressly excluded from its scrutiny the question whether or not the applicant’s freedom of expression justified, in the circumstances, a formal breach of his labour contract. This decision was served on 13 July 2010. | 1 |
test | 001-173621 | ENG | SVK | CHAMBER | 2,017 | CASE OF PALUDA v. SLOVAKIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Access to court;Civil rights and obligations);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1959 and lives in Bratislava. He is and at the relevant time was a Supreme Court judge. 7. The Judicial Council of the Slovak Republic is the supreme governing body of the judiciary in Slovakia. It has eighteen members, including its President (section 3(1) of the Judicial Council Act (Law no. 185/2002 Coll., as amended)). Under Article 141a of the Constitution (Law no. 460/1992 Coll.), as applicable at the relevant time, the President of the Supreme Court automatically held the office of the President of the Judicial Council. Of the remaining seventeen members, eight were elected by judges and three were appointed by each the National Council of Slovakia, the President of Slovakia, and the Government of Slovakia. 8. On 8 September 2009, sitting it the above mentioned composition, the Judicial Council decided under section 22(1) and (2) of the Judges and Assessor Judges Act (Law no. 385/2000 Coll., as amended – “the Act”) to suspend (dočasné pozastavenie výkonu funkcie sudcu) the applicant in the exercise of his function with immediate effect. This decision followed another decision of the Judicial Council taken on the same day under section 120(2)(c) of the Act to file disciplinary charges against the applicant. 9. The accusation was that the applicant had committed what was classified as a “serious disciplinary offence” by failing to comply with his duties, such as abstaining from behaviour which might cast doubt on the respectability of his judicial office, abiding by the principles of judicial ethics and enhancing the good reputation of the judiciary. In particular, reference was made to the fact that the applicant (i) had filed a criminal complaint accusing the President of the Supreme Court of abuse of authority, and (ii) had publicly stated that the distribution of cases at the Supreme Court had been modified with a view to allowing its President to influence the outcome of proceedings. In terms of a sanction, the Judicial Council proposed that the applicant’s post as a judge be revoked. 10. Under section 22(7) of the Act, the decision to suspend him entailed a 50% reduction in the applicant’s salary for the duration of the disciplinary proceedings. The same provision prevented him from spending time at the workplace, with the exception of time which was necessary for asserting his rights in relation to the administration of human resources. Under section 22(5) of the Act, the suspension could last at most two years. The withheld part of the applicant’s salary might or might not be restored to him, depending on the outcome of the disciplinary proceedings (section 22(8) and (9) of the Act). 11. The applicant sought protection of his rights in relation to the decision to suspend him as a judge by way of what he termed an appeal (rozklad) to the Judicial Council of 29 October 2009, an administrative-law action of the same day, and a constitutional complaint of 2 November 2009. 12. On 25 November 2009 the Constitutional Court declared the complaint inadmissible. It noted that the applicant’s applications before the Judicial Council and administrative tribunals were still pending and considered that, under the principle of subsidiarity, his constitutional complaint was accordingly premature. 13. As to the applicant’s submission to the Judicial Council, its president responded to it in a letter of 27 January 2010 informing the applicant that the law did not allow for decisions of the Council to be challenged by means of appeals to the Council and that its decisions were reviewable by administrative tribunals. 14. On 13 May 2010 the Bratislava Regional Court discontinued the proceedings on the applicant’s administrative-law action and on 23 February 2011 the Supreme Court upheld that decision following an appeal lodged by the applicant. The courts found that the decision to suspend the applicant had been of a preliminary nature, that it had not amounted to a determination of his rights with final effect, and that as such it had no bearing on his fundamental rights and freedoms. In such circumstances, the decision was excluded from judicial review under Article 248 (a) of the Code of Civil Procedure (Law no. 99/1963 Coll., as applicable at the relevant time). 15. On 17 June 2011 the applicant lodged a fresh complaint with the Constitutional Court, alleging a breach of Article 6 § 1 of the Convention on account of the ordinary courts’ decisions, as detailed above. 16. On 7 December 2011 the Constitutional Court declared the applicant’s complaint of 17 June 2011 inadmissible as being manifestly illfounded. It held that the Supreme Court had given sound reasons for its decision, and its decision was not arbitrary or otherwise contrary to the applicant’s right to a fair hearing. 17. According to a communication from the Judicial Council dated 6 August 2016, submitted and relied on by the Government, the applicant had addressed various submissions to the Council, but had never requested it to lift his temporary suspension, pursuant to section 22(5) of the Act (as applicable at the relevant time – see paragraph 24 below). 18. The disciplinary charges against the applicant fell to be determined by the Supreme Court, sitting as a disciplinary tribunal. 19. In accordance with a legislative amendment which took effect on 1 May 2011, the Minister of Justice became a party to pending disciplinary proceedings against judges which had been initiated by the Judicial Council. 20. On 9 May 2011 the Minister of Justice withdrew the application to discipline the applicant. 21. On that ground the Supreme Court discontinued the disciplinary proceedings against the applicant on 13 May 2011. The applicant challenged that decision by way of an appeal, only to withdraw it on 11 August 2011. The decision thus became final on 27 September 2011. 22. The part of the applicant’s salary that was retained from him during the time of his suspension (see paragraph 10 above) was restored to him in July 2012. | 1 |
test | 001-175651 | ENG | RUS | COMMITTEE | 2,017 | CASE OF RASTORGUYEV AND OTHERS v. RUSSIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Dmitry Dedov;Luis López Guerra | 4. On 18 January 2007 the Moscow City authorities, the Ministry of the Defence of the Russian Federation and a private construction company signed an investment contract for the construction of a number of residential buildings in Moscow. Pursuant to the contract, a title to 3,823 flats was to be transferred to the Ministry of the Defence. The rest of the flats were to remain the city’s property. 5. In 2008 the city authorities commissioned, as part of the said investment contract, several residential buildings. It appears that a number of flats in those buildings were transferred to the Ministry of the Defence. 6. In 2009 the city authorities had their title to a number of flats, including those in residential buildings nos. 8 and 26-1 at Ulitsa Marshala Savitskogo, Moscow, registered by the state authorities. 7. In 2010 the Ministry of the Defence assigned five of those flats to private individuals and entered into social housing agreements with them. Subsequently those people successfully applied to the Zyuzinskiy District Court of Moscow seeking recognition of their title to the flats by way of privatisation. Once the court’s judgments became final, they had their ownership in respect of the flats registered in the state register and then sold the flats to other persons, including the applicants. The relevant transactions and transfer of the title to the property were duly registered by the authorities. The applicants moved into the flats and resided there. 8. According to the Government, in 2012 and 2013 the police opened criminal investigation in respect of the fraudulent transactions with the flats. The Government did not inform of its outcome. 9. On an unspecified date city authorities asked the District Court to reopen the cases concerning the flats privatised by the tenants who sold them to the applicants in 2011. The authorities claimed that the flats owned by the applicants were the city’s property. The District Court granted the request, quashed the earlier judgments allowing the privatisation of the flats and re-examined the cases. The court established, inter alia, that the Ministry of the Defence had never owned the flats and, accordingly, had not had a right to assign them to private individuals. It granted the city’s claims in full invalidating the decisions of the Ministry of the Defence in respect of the flats and ordering the applicants’ eviction. The court also found that the applicants had acquired the flats in good faith. However, it ruled that the cases fell under one of the two exceptions to the protection of a bona fide purchaser’s title, which required that precedence be given to the City of Moscow given that the flats had left the City’s possession against the latter’s will. 10. The applicants’ appeals were to no avail. The Moscow City Court and the Supreme Court of the Russian Federation rejected them as unsubstantiated. 11. According to the Government, the judgments ordering the applicants’ eviction were not enforced. The applicants continue to reside in the flats. 12. The details pertaining to each case are summed up in Appendix II below. | 1 |
test | 001-148184 | ENG | SWE | CHAMBER | 2,014 | CASE OF LUCKY DEV v. SWEDEN | 3 | Remainder inadmissible;Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Acquittal;Right not to be tried or punished twice);Non-pecuniary damage - award | Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1961 and lives in Hässelby, Sweden. 6. By a decision of 1 June 2004 the Tax Agency (Skatteverket), noting that the applicant ran two restaurants together with her husband, Mr Shibendra Dev (who also lodged an application before the Court; no. 7362/10), found that they should each declare half of the proceeds and the costs of that business. As the applicant, in her tax return, had not declared all her income and had, moreover, not declared it in the correct manner, the Agency revised upwards her income for 2002 (i.e. the taxation year 2003), finding her liable to pay tax on undeclared business income (inkomst av näringsverksamhet) amounting to 764,945 Swedish kronor (SEK; approximately 83,000 euros (EUR)). It also increased her liability to value-added tax (mervärdesskatt; “VAT”) for 2002 by SEK 379,365 (approximately EUR 41,000). Finally, as the information supplied by the applicant in her tax return was found to be incorrect and the revision had had to be made under a discretionary assessment procedure, given the business’s deficient accounting, the Agency ordered her to pay tax surcharges (skattetillägg), amounting to 40% and 20%, respectively, of the increased income tax and VAT. 7. Following the applicant’s appeal, the Tax Agency, on 18 March 2005, made an obligatory review of its decision but did not change it. 8. On 10 January 2007 and 29 October 2008, respectively, the County Administrative Court (länsrätten) in Stockholm and the Administrative Court of Appeal (kammarrätten) in Stockholm upheld the Tax Agency’s decision. 9. By a decision of 20 October 2009 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal. 10. Criminal proceedings were initiated against the applicant on 5 August 2005 in regard to the above conduct. 11. By a judgment of 16 December 2008 the Stockholm District Court (tingsrätt) convicted the applicant of an aggravated bookkeeping offence (grovt bokföringsbrott). She was given a suspended sentence and ordered to perform 160 hours of community service. The offence concerned the same period as the above-mentioned tax decisions, that is, the year 2002. The District Court found that the bookkeeping of the restaurant business had been seriously deficient and that the applicant and her husband had been responsible for failing to account for considerable proceeds and VAT, which had involved large profits for them. In regard to the public prosecutor’s claim that the applicant was guilty also of an aggravated tax offence (grovt skattebrott), the court considered that it could not be ruled out that, as she claimed to have relied on her husband running the business properly and their accountant having entered the correct figures in her tax return, she had been unaware that her tax return contained false information. Thus, it had not been shown that she had intended to give incorrect information, for which reason the indictment was dismissed in this respect. 12. The applicant did not appeal against the District Court’s judgment, which consequently acquired legal force on 8 January 2009. | 1 |
test | 001-166937 | ENG | RUS | CHAMBER | 2,016 | CASE OF YAROSLAV BELOUSOV v. RUSSIA | 3 | Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1991 and lives in Moscow. 6. On 6 May 2012 the applicant was arrested during the dispersal of a political rally at Bolotnaya Square in Moscow. He was found guilty of failure to obey lawful police orders, an offence under Article 19.3 of the Code of Administrative Offences, and was subsequently charged with participation in mass disorder and with having committed violent acts against police officers, criminal offences provided for by Articles 212 § 2 and 318 § 1 of the Criminal Code. He was detained and tried on these charges and was convicted to a prison term of two years and three months. 7. The background facts relating to the planning, conduct and dispersal of the assembly at Bolotnaya Square are set out in more detail in the judgment Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below. 8. On 23 April 2012 five individuals (Mr I. Bakirov, Mr S. Davidis, Ms Y. Lukyanova, Ms N. Mityushkina and Mr S. Udaltsov) submitted notice of a public demonstration to the mayor of Moscow. The aim of the demonstration was “to protest against abuses and falsifications in the course of the elections to the State Duma and of the President of the Russian Federation, and to demand fair elections, respect for human rights, the rule of law and the international obligations of the Russian Federation”. 9. On 3 May 2012 the Moscow Department of Regional Security approved the route from Kaluzhskaya Square, down Bolshaya Yakimanka Street and Bolshaya Polyanka Street, followed by a meeting at Bolotnaya Square, noting that the organisers had provided a detailed plan of the proposed events. The march was to begin at 4 p.m., and the meeting had to finish by 7.30 p.m. The number of participants was indicated as 5,000. 10. On 4 May 2012 the First Deputy Head of the Moscow Department of Regional Security held a working meeting with the organisers of the demonstration at Bolotnaya Square, at which they discussed the security issues. The organisers and the authorities agreed that the assembly layout and the security arrangements would be identical to the previous public event organised by the same group of opposition activists on 4 February 2012. On that occasion, the venue of the meeting had included the park at Bolotnaya Square and the Bolotnaya embankment. 11. On 5 May 2012 the Tsentralnyy District Prosecutor’s Office of Moscow issued a warning to two of the organisers, Mr Davidis and Mr Udaltsov, against exceeding the notified number of participants and against erecting camping tents at the meeting venue, an intention allegedly expressed by the organisers at the working meeting. 12. On the same day the Moscow Department of the Interior published on its website the official information about the forthcoming demonstration on 6 May 2012, including a map. The map indicated the route of the march, the traffic restrictions and an access plan to Bolotnaya Square; it delineated the area allotted to the meeting, which included the park at Bolotnaya Square. Access to the meeting was marked through the park. 13. On the same day the Police Chief of the Moscow Department of the Interior adopted a plan for safeguarding public order in Moscow on 6 May 2012 (the “security plan”). In view of the forthcoming authorised demonstration at Bolotnaya Square and anticipated attempts by other opposition groups to hold unauthorised public gatherings, it provided for security measures in Moscow city centre and set up operational headquarters to implement them. The police units assigned to police the march and the meeting counted 2,400 riot police officers, of which 1,158 were on duty at Bolotnaya Square. They were instructed, in particular, to search the demonstrators to prevent them from taking tents to the site of the meeting and to obstruct access to Bolshoy Kamenyy bridge, diverting the marchers to Bolotnaya embankment, the place of the meeting. The adjacent park at Bolotnaya Square had to be cordoned off. 14. At about 1.30 p.m. on 6 May 2012 the organisers were allowed access to the meeting venue to set up their stage and sound equipment. The police searched the vehicles delivering the equipment and seized three tents found amid the gear. They arrested several people for bringing the tents. 15. At the beginning of the march, the organisers signed an undertaking to ensure public order during the demonstration and gave assurances to the police that the limits on the place and time allocated for the assembly would be respected and that no tents would be placed on Bolotnaya Square. 16. The march began at 4.30 p.m. at Kaluzhskaya Square. It went down Yakimanka Street peacefully and without disruption. The turnout exceeded expectations, but there is no consensus as to the exact numbers. The official estimate was that there were 8,000 participants, whereas the organisers considered that there were about 25,000. The media reported different numbers, some significantly exceeding the above estimates. 17. At about 5 p.m. the march approached Bolotnaya Square. The leaders found that the layout of the meeting and the placement of the police cordon did not correspond to what they had anticipated. Unlike on 4 February 2012, the park at Bolotnaya Square was excluded from the meeting venue, which was limited to Bolotnaya embankment. 18. Faced with the police cordon and unable to access the park, the leaders of the march – Mr S. Udaltsov, Mr A. Navalnyy, Mr B. Nemtsov and Mr I. Yashin – stopped and demanded that the police open access to the park. The cordon officers did not enter into any discussion with the protest leaders and no senior officer was delegated to negotiate. After about fifteen minutes of attempting to engage with the cordon officers, at 5.16 p.m. the four leaders announced that they were going on a “sit-down strike” and sat on the ground. The people behind them stopped, although some people continued to go past them towards the stage. 19. Between 5.20 p.m. and 5.45 p.m. two State Duma deputies tried to negotiate the enlargement of the restricted area by moving the police cordon behind the park along the lines expected by the organisers. At the same time the Ombudsman of the Russian Federation, at the request of police, attempted to persuade the leaders of the sit-in to resume the procession and to head towards the meeting venue at Bolotnaya embankment where the stage had been set up. During that time no senior police officer or municipal official came to the site of the sit-down protest, and there was no direct communication between the authorities and the leaders of the sit-in. 20. At 5.50 p.m. the crowd around the sit-down protest built up, which caused some congestion, and the leaders abandoned the protest and headed towards the stage, followed by the crowd. 21. At 5.55 p.m. the media reported that the police authorities were regarding the strike as a provocation of mass disorder and were considering prosecuting those responsible for it. 22. At the same time a commotion near the police cordon occurred at the place vacated by the sit-down protest, and the police cordon was broken in several places. A crowd of about 100 people spilled over into the empty space beyond the cordon. Within seconds the police restored the cordon, which was reinforced by an additional riot police force. Those who found themselves outside the cordon wandered around, uncertain what to do next. Several people were apprehended, others were pushed back inside the cordon, and some continued to loiter outside or walked towards the park. The police cordon began to push the crowd into the restricted area and advanced by several metres, pressing it inwards. 23. At 6 p.m. Ms Mityushkina, on police instructions, announced from the stage that the meeting was now over, but apparently her message was not heard by most of the demonstrators or the media reporters broadcasting from the spot. The live television footage provided by the parties contained no mention of her announcement. 24. At the same time a Molotov cocktail was launched from the crowd at the corner of Malyy Kamennyy bridge over the restored police cordon. It landed outside the cordon and a passer-by’s trousers caught fire. It was promptly extinguished by the police. 25. At 6.15 p.m. at the same corner of Malyy Kamennyy bridge the riot police began breaking into the demonstration to split up the crowd. Running in tight formations, they pushed the crowd apart, arrested some people, confronted others, and formed new cordons to isolate sections of the crowd. Some protesters held up metal barriers and aligned them so as to resist the police, threw various objects at the police, shouted and chanted “Shame!” and other slogans, and whenever the police apprehended someone from among the protesters they attempted to pull them back. The police applied combat techniques and used truncheons. 26. At 6.20 p.m. Mr Udaltsov climbed onto the stage at the opposite end of the square to address the meeting. At this point, he was arrested. Mr Navalnyy attempted to go up onto the stage, but he was also arrested, and so was Mr Nemtsov, five minutes later. 27. Meanwhile, at the Malyy Kamennyy bridge the police continued dividing the crowd and began pushing some sections away from the venue. Through loudspeakers they asked the participants to leave for the metro station. The dispersal continued for at least another hour until the venue was fully cleared of all protesters. 28. On the same day the Investigative Committee of the Russian Federation opened a criminal investigation into the suspected mass disorder and violent acts against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). 29. On 28 May 2012 an investigation was also launched into the criminal offence of organising mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day. 30. On 24 May 2013 the first criminal case against twelve individuals suspected of participation in mass disorder, including the applicant, was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges (the first “Bolotnaya” case). 31. On 21 February 2014 the Zamoskvoretskiy District Court of Moscow pronounced a judgment in the first Bolotnaya case. It found eight individuals, including the applicant, guilty of participation in mass disorder and of violent acts against police officers during the public assembly on 6 May 2012. They received prison sentences of between two and a half and four years; one of them was released on parole. The applicant was sentenced to two years and six months’ imprisonment. Three co-defendants had previously been pardoned under the Amnesty Act and a fourth had his case disjoined from the main proceedings. This judgment was upheld by the Moscow City Court on 20 June 2014. It reduced the applicant’s prison sentence to two years and three months. 32. On 24 July 2014 the Moscow City Court found Mr Udaltsov and Mr Razvozzhayev guilty of organising mass disorder on 6 May 2012 and sentenced them to four and a half years’ imprisonment. On 18 March 2015 the Supreme Court of the Russian Federation upheld the judgment of 24 July 2014, with amendments. 33. On 18 August 2014 the Zamoskvoretskiy District Court of Moscow examined another “Bolotnaya” case and found four persons guilty of participating in the mass disorder and of committing violent acts against police officers during the demonstration on 6 May 2012. They received prison sentences of between two and a half and three and a half years; one of them was released on parole. This judgment was upheld by the Moscow City Court on 27 November 2014. 34. At the time of arrest the applicant was a student at the political science faculty of the Moscow State University and lived with his wife and their child born in 2011. On 6 May 2012 he arrived at Bolotnaya Square to take part in the demonstration and, according to him, he did not take part in any disorder or clashes with the police, although he was in the area where clashes occurred. At one point during the dispersal of the demonstration he picked up from the ground a small round yellow object and threw it over the heads of the protesters in the direction of the police. He was arrested shortly after that. There is no information as to whether he was detained on that day. 35. On 17 May 2012 the applicant was charged with non-compliance with a lawful order by a police officer on 6 May 2012. He was found guilty of the offence provided by Article 19.3 of the Code of Administrative Offences and was sentenced to 24-hours’ detention. 36. Until 9 June 2012 the applicant continued to study at the university while living with his family at his usual address. On the latter date he was detained on suspicion of having participated in mass disorders on 6 May 2012. 37. On 11 June 2012 the Basmannyy District Court examined and granted the request to detain the applicant pending criminal investigation. It reasoned as follows: “In assessing the circumstances under investigation, [the court takes account of] the submitted materials and the indicated information in their integrity, as well as the personality of [the applicant], who is suspected of having committed criminal offences one of which is characterised as grave and the other of medium gravity, punishable by up to two years of deprivation of liberty, and therefore giving sufficient reasons to believe that the applicant is likely to abscond, to continue his criminal activity, to destroy evidence, or to otherwise obstruct the investigation of the criminal case.” 38. The court dismissed the applicant’s request for an alternative preventive measure, including bail of 500,000 Russian roubles (RUB), and personal guarantees of several state officials and found that his release was not required on health grounds. It ordered the applicant’s detention until 6 July 2012. On 2 July 2012 the Moscow City Court upheld the detention order. 39. On 18 June 2012 charges were brought against the applicant under Articles 212 § 2 (participation in mass disorder) and 318 § 1 (violence against a public official) of the Criminal Code. He was accused, in particular, of shouting slogans and throwing an unidentified small round yellow object that had hit the police officer’s shoulder. 40. On 3 July 2012 the Basmannyy District Court examined the investigator’s request to extend the term of the applicant’s detention by four months. The applicant asked for another preventive measure pending trial. He offered bail of RUB 500,000 or the personal guarantees of a State Duma deputy, two Moscow municipal deputies and one academic. His request for an alternative preventive measure was supported by petitions signed by six Moscow municipal deputies and three personal references from his place of residence and the university. The applicant also made a plea for release on health grounds, having provided medical certificates confirming that he was suffering from a high-degree myopia and asthma. On the same day the court found that the circumstances that had justified the detention order had not changed and, referring to the gravity of the charges and the complexity of the investigation, extended the applicant’s detention until 6 November 2012. This extension order was upheld by the Moscow City Court on 6 August 2012. 41. On 29 October 2012 the Basmannyy District Court granted another extension of the applicant’s detention, until 6 March 2013, essentially on the same grounds and noting that the circumstances that had justified the detention order had not changed. This extension order was upheld by the Moscow City Court on 26 November 2012. 42. On 7 November 2012 the charges against the applicant were updated with a statement that the applicant’s and others’ acts had cumulatively caused the police officer a haematoma on the head, leg and shoulder. The classification of the offences remained unchanged. 43. On 1 March 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 9 June 2013, essentially on the same grounds as before and noting that the circumstances that had justified the detention order had not changed. On 10 April 2013 the Moscow City Court upheld this extension order. 44. On 23 April 2013 the Moscow City Court examined a fresh request for the extension of the applicant’s detention and granted it until 6 July 2013. The decision read as follows: “The materials presented [by the investigator] reveal that the grounds for choosing the preventive measure in respect of [the applicant] were not only the gravity of the charges but also the information about the personality of [the applicant] who could abscond from the investigation and trial, threaten witnesses, or otherwise obstruct the proceedings in the case, if released. The aforementioned grounds ... ... This term is reasonable, [it] is justified by the objective circumstances, it is not in conflict with the term of the pre-trial investigation, also extended on the same grounds ... In accordance with the Constitutional Court’s [case-law], the proportionality of the preventive measure to the [gravity of the] charges imputed to [the applicant] show that in this case the public interests, in particular those related to the criminal investigation, override the importance of the principle of respect of individual liberty.” 45. On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court for the determination of criminal charges. 46. On 30 May 2013 the Moscow City Court upheld the extension order of 23 April 2013. 47. On 6 June 2013 the latter court granted another extension of the applicant’s detention until 24 November 2013. This decision concerned eleven defendants and read, in so far as relevant, as follows: “... the court concludes that the preventive measure in respect of [all defendants] ... is to remain unchanged because the reasons taken into account when these measures were chosen have not ceased to exist and have not changed ... ... [the defendants] are accused of [grave crimes punishable by prison sentences] ... Regard being had to all the available information about the personality of [the defendants] and the nature of the criminal offences imputed to each of them, the court still has sufficient grounds to believe that the said defendants, if at liberty, may flee the trial or otherwise obstruct the course of justice, [motivated by] the gravity of the charges. ... no other measures of restraint would secure the aims and goals of the judicial proceedings ... The court takes into account the arguments of Mr Akimenkov, Mr Belousov and Mr Barabanov and their counsel concerning the health problems which occurred in custody, but notes that no documentary evidence that these defendants have diseases threatening their life or health and incompatible with the detention in custody have been provided.” 48. On 2 July 2013 the Moscow City Court upheld the extension order of 6 June 2013. 49. On 6 August 2013, during the court hearing the applicant made an application for release which was dismissed by the Zamoskvoretskiy District Court on the same day. 50. On 11 September 2013 the Ombudsman of the Russian Federation applied to the Presidium of the Moscow City Court with a complaint about the extension of the applicant’s pre-trial detention, and requested an alternative preventive measure for him. 51. On 22 October 2013 the applicant applied for release on the grounds of his child’s medical condition, as well as the deterioration of the applicant’s own health. This application was supported by several prominent public personages, including university professors, the dean of the faculty of political science and a State Duma deputy, all of whom provided personal guarantees. On 2 October 2013 the Zamoskvoretskiy District Court rejected this application. 52. On 1 November 2013 the Moscow City Court refused the Ombudsman’s request of 11 September 2013. 53. On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant. It ordered their detention until 24 February 2014 on the grounds of the gravity of the charges. It held, in particular, as follows: “[The defendants] are charged with a criminal offence provided for by Article 212 § 2 of the Criminal Code, which belongs to the category of grave crimes punishable by a prison sentence of over three years. Furthermore, [some defendants] are charged with a criminal offence provided for by Article 318 § 1 of the Criminal Code, also punishable by a prison sentence of over three years. Despite the defendants being registered as having permanent addresses in the Russian Federation, the analysis of the overall information about [the defendants’] personalities, and the nature of the offences imputable to them, give the court sufficient grounds to consider that the defendants, if the preventive measure is changed to another one not involving deprivation of liberty, may flee the trial or otherwise obstruct the course of justice, [motivated by] the gravity of the charges ... the reasons taken into account when these measures were chosen have not ceased to exist and have not changed ...” 54. On 17 December 2013 the Moscow City Court upheld the extension order of 19 November 2013. 55. The applicant has high-degree myopia. According to a 2009 medical certificate, his eyesight in the right eye was minus 10 dioptres, and on the left eye minus 6 dioptres. 56. From 19 June 2012 to 29 June 2013 the applicant was detained in remand prison IZ-77/5, and from 29 June 2013 he was held in IZ-77/2. Upon his arrival at the remand prisons the applicant was subjected to medical checks which did not reveal any health issues. 57. The parties agree that on most days the number of inmates in the cell did not exceed the design capacity. They also agree that the size of the cells and the number of detainees allowed the applicant four square metres of personal space and that the applicant had an individual sleeping place in every cell. 58. The parties provided the following accounts of the conditions in these cells. According to the applicant, the cells were inadequately lit and ventilated, excessively hot in summer and cold in winter, all with a lavatory pan separated from the living space by a chin-high plastic partition providing insufficient privacy. The applicant alleged that he had been constantly exposed to cigarette smoke, and although the window in the cell could be opened it gave onto a courtyard used for incinerating rubbish, letting in fumes. Therefore the cell constantly lacked fresh air, and the forced ventilation could not compensate for it. Outdoor exercise was limited to one hour per day. The applicant also claimed that the window was too high to give sufficient light for reading or working with documents. Finally, he alleged that access to drinking water was conditional on the purchase of an electric kettle. 59. According to the Government, the artificial light in the cells was maintained at 100 watts round the clock except at night, from 10 p.m. to 6 a.m., when it was 75 watts; they provided measurement tables for this detention centre created in August 2013, which stated that the brightness in the cells was between 149 and 454 lux, the temperature in the cells between 26oC and 29oC, and the humidity between 36% and 45%. They indicated that in IZ77/5 the detainees had access to a gym upon their written request. 60. On 11 July 2012 the applicant applied in writing to the head of the facility for a medical examination. He alleged that he had been suffering from asthma and high-degree myopia. On 20 September 2012 he made a similar application to the investigator of the criminal case. 61. On 3 October 2012 the investigator granted the applicant’s request for a medical examination. This decision read as follows: “... the performance of a medical examination ... falls outside the competence of the investigating bodies ... However, given that the state of health of the accused Mr Belousov is of importance to the present criminal case, the investigating bodies have sent the relevant request to the administration of [IZ-77/5] stating the need to carry out, in the shortest possible time, the medical examination of the accused Mr Belousov, the results of which are to be submitted to the investigating bodies for inclusion in the criminal case file.” 62. It appears that the medical examination was not carried out. 63. On 28 November 2012 and 11 January 2013 the public commission for the monitoring of detention facilities visited IZ-77/5, and, according to the Government, the applicant made no complaints about the conditions of detention or the lack of medical assistance on either occasion. 64. On 3 September 2013 the applicant had a hypertension crisis during a court hearing. An ambulance was called and provided him with the necessary assistance. 65. Following his complaints of headaches, on 6 September 2013 the applicant was placed in the medical ward of IZ-77/2. Upon admission, the applicant was diagnosed with hypertension. He remained in the medical ward for a period of at least two months for his blood pressure to be monitored. 66. The applicant alleged that the conditions in IZ-77/2 were poor, in particular on account of the lack of outdoor exercise and inadequate sanitary arrangements. He specified that the lavatory pan was separated from the living space by a chest-high partition providing insufficient privacy. According to the applicant’s letter of 30 July 2013, he had not been able to have a shower since his transfer to IZ-77/2. 67. According to the Government, the conditions in the cells of IZ-77/2 were as follows: the toilet was separated by a solid partition from the rest of the cell and ensured the necessary privacy; the state of the sanitary facilities was satisfactory; the cells were treated for disinfection and pest-control once every three months and whenever necessary; the applicant was entitled to one hour’s outdoor exercise per day; the cell was cleaned and the bedding changed once a week; the cells were equipped with forced ventilation and could be aired through a hinged window pane. Artificial light was provided at 100 watts by day and 75 watts by night. The glazed windows let in sufficient daylight. 68. Pursuant to the request of the applicant’s counsel filed on an unidentified date, on 31 January 2014 the applicant was examined by an ophthalmologist and was diagnosed with high-degree myopia (minus 13 dioptres on both eyes). 69. During the hearing of the applicants’ criminal case, which began in July 2013, the applicant and his co-defendants were regularly transferred from the remand prisons to the court-house and back. All the defendants attended the hearings on three or four consecutive days every week. According to the Government, the applicant’s trial involved ninety-one court hearings, and it appears that the applicant was transferred to attend all of them. A typical schedule on a hearing day is represented by the following two-week extract submitted by the applicant: 70. According to the applicant, this schedule left him insufficient time for sleep between the court hearings, gave him no time to prepare for the next day’s hearing, and deprived him of hot meals. 71. He further alleged that the conditions in the prison assembly rooms and in the transfer van («автозак») had been appalling, in particular owing to overcrowding. He claimed that he was cramped together with other detainees and their belongings in a small tin cabin without windows, ventilated only through a roof hatch. The benches were spaced at 30 cm, and the detainees had to get in and out by walking on others. Smoking was allowed, which caused further discomfort, especially to non-smokers. Occasionally, they were transferred in vans divided into tight individual metal cubicles. In both types of vans the cabin overheated in the summer and froze in cold weather. The transfer lasted for two to six hours depending on the number of pick-up points and traffic conditions. There was no opportunity to use a toilet during the transfer, even at other pick-up points where the van could wait for hours. 72. At the Moscow City Court before and after the hearings the applicant and his co-defendants were held in convoy cells. According to the applicant, these were poorly lit and often overcrowded, and access to a toilet was subject to the availability of a convoy officer. Some of the convoy cells on the ground floor of the court-house were as small as two square metres, and each could be shared by two detainees. The applicants’ account was supported by witness statements submitted by his co-defendant Mr Kavkazskiy and those given by his three fellow inmates, unrelated to the present case; their detailed accounts of the prison transfers in the relevant period, as well as of the convoy cells at the Moscow City Court, were consistent with the applicant’s submissions. 73. According to the Government, the morning transfer to the courthouse did not exceed 1.5 hours, and the transfer back lasted for up to three hours because of the evening traffic. Also, the applicant’s schedule allowed for eight hours of uninterrupted sleep. They indicated that the wake-up time at the detention centres was 6 a.m., the pickup would take place at 8 a.m., and the drop-off after the hearing at 9.30 p.m.; assembly before and after the transfer did not exceed 30 minutes. All the detainees were provided with packed meals for the whole day out at the court-house, and they were given hot water at lunchtime. They further indicated that the vans used for the transfer were 2009-2011 models of KAMAZ4308AZ, KAMAZOTS577489AZ (both designed for 32 detainees), GAZ326041AZ (designed for seven detainees), and GAZ3309AZ (designed for 19 detainees). As regards the convoy cells at the Moscow City Court, they submitted that the applicant and his co-defendants were detained in convoy area of the court-house, which included four cells measuring 12 square metres each and toilets, including a wheelchair-accessible one, which the detainees could use on demand, accompanied by the convoy. They submitted that the cells had adequate light and ventilation, and that they were furnished with tables and benches. During the intervals in the hearing the defendants could use an electric kettle to boil water. 74. On 6 June 2013 the court proceedings began in hearing room no. 338 of the Moscow City Court. The latter court lent its premises to the Zamoskvoretsky District Court so as to accommodate all the participants in the proceedings, the public and the press. In that hearing room ten defendants were held in a glass cabin measuring 3.2 m x 1.7 m x 2.3 m (height). The Government submitted that the glass cabin was a permanent courtroom installation consisting of a steel frame and sheets of bulletproof glass, with a partition inside, a steel mesh ceiling and a secure door; the cabin was equipped with benches. The walls of the cabin had slots allowing documents to be passed between the defendants and their counsel; ventilation outlets were at floor level, and near the dock was an air conditioner. The cabin was equipped with microphones allowing for consultations with counsel and facilitating the defendants’ participation in the proceedings. The Government specified that convoy officer guarded the cabin on both sides, supervised the defendants and intercepted any attempts of “contact with outsiders”, but the defendants could communicate with their counsel with the court’s permission. 75. The applicant submitted that the glass cabin lacked space and ventilation and that it was virtually soundproof, hampering the defendants’ participation in the proceedings and their communication with counsel. The benches had no backrests, and the lack of space made it impossible to have documents; it was impossible to consult counsel or the case file during the hearing. The applicant also submitted that the video evidence examined at the hearing could not be seen by him from the cabin because of the distance between the cabin and the screen and his poor eyesight. 76. In August 2013 the proceedings moved to hearing room no. 635 of the Moscow City Court. This hearing room was equipped with two glass cabins similar to the one in hearing room no. 338, except that there were no slots in them. Each cabin measured 4 m x 1.2 m x 2.3 m (height). From 2 August 2013 one of the defendants was no longer placed in the glass cabin owing to a change in the measure of restraint for him. The nine remaining defendants were divided between the two cabins. 77. From mid-September 2013 to the end of 2013 the hearings continued on the premises of the Nikulinskiy District Court of Moscow (hearing room no. 303), and in January and February 2014 at the Zamoskvoretskiy District Court (hearing room no. 410). These hearing rooms were equipped with metal cages in which the nine defendants (from 19 December 2013 eight), including the applicant, sat during the hearings. According to the photographs submitted by the applicants, the dimensions of the cages were similar to the glass cabins described above and, likewise, they were not equipped with any furniture other than benches. 78. On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing of the criminal case against ten participants in the public assembly at Bolotnaya Square charged with participation in mass disorders and violent acts against police officers. On 18 June 2013 the same court began the hearing on the merits. 79. On 13 November 2013 police officer F., the victim of the applicant’s assault, was examined as a witness. He testified that the applicant had thrown an unidentified yellow object which had hit him on the shoulder and caused him pain. The applicant asked for F.’s statements made during the investigation, which contained no mention of the yellow object or the applicant, to be read out in court. The applicant pointed out that no identification parade had been held during the investigation to enable F. to identify the person who had assaulted him; instead, the applicant and F. had been questioned in confrontation, whereby the applicant had been the only person introduced to F. as the likely perpetrator. The court refused the applicant’s request for F.’s statements to be read out. 80. On 21 February 2014 the Zamoskvoretskiy District Court of Moscow pronounced judgment. It found, in particular, as follows: “Between 4 p.m. and 8 p.m. on 6 May 2012 ... at Bolotnaya Square ... unidentified persons ... called those present [at the venue] to move outside the agreed meeting venue, to defy the lawful orders of the police ..., to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [and] the destruction of property. On the same day at 5 p.m. at the latest [the defendants] acquired the criminal intent to participate in mass disorder and to use violence ... Thus, in furtherance of this criminal intent, at an unidentified time and place Mr Belousov acquired an unidentified solid yellow round object with the intention of using it to cause violence against officials ... ... together with other participants ... Mr Belousov repeatedly chanted antigovernment slogans. Moreover ... the participants in the mass disorder threw chunks of tarmac, stones, sticks and other objects at the police ... which hit them on various body parts, and [the defendants] ... [who] participated in the mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force not endangering life or health of those [officials] ... Mr Belousov used violence not endangering the life or health of [Mr F.] ... Between 5 p.m. and 8.10 p.m. on 6 May 2012 ... unidentified participants in the mass disorder deliberately administered at least three blows and kicks to [F.’s] head, body and limbs, after which Mr Belousov ... deliberately targeting [F.], threw an unidentified solid yellow round object, which hit [F.] on the upper right side of the chest, causing him physical pain. As a result of Mr Belousov and other unidentified persons’ actions [F.] sustained physical pain and injuries in the form of bruising and abrasion of the soft tissues of the parietal region, bruising of the ... left forearm, abrasion on the ... right shin, [all of] which, assessed individually or cumulatively, constituted injuries not endangering life or health, and not entailing short-term health impairment or minor durable professional incapacitation ... Mr Belousov ... pleaded not guilty and testified that ... he wanted to see why the meeting was not starting [and] went to Malyy Kamennyy Bridge ... [he] saw the riot police cordon ... [and officers] arresting some [participants] ... [he] was looking to leave and went to the middle of Bolotnaya Square and saw a girl who tripped on something and nearly fell. Without looking at it closely he picked it up from the ground; it felt soft and slimy ... and threw it away without aiming it at anyone ... he joined hands with other protesters chanting “One for all and all for one!”, “United, we are invincible!”. At this moment three police officers ran up to him, grabbed him and carried him to the police vehicle ... Police officer [F.] testified that ... after the cordon was restored ... he was heading into the crowd to arrest offenders ... somebody hit him three times on the head ... then he felt a blow from a heavy object on his shoulder. From the corner of his eye he saw [Mr Belousov] take a swing and toss something ... like a billiard ball. ... Mr Belousov was filmed at the moment he threw a yellow object at the police ... The [defendants’] argument that no mass disorder took place is considered by the court unsubstantiated because ... as a result of the premeditated actions of a group of individuals who organised ... obstruction to the demonstrators’ march on their way to the intended meeting venue where the stage was, which caused discontent among the protesters towards ... the police ... those who were leading the march and who were able to make an unhindered approach to the meeting venue changed their tactics and called for ... a sit-in, hoping thus to secure a decision to change the placement of the cordon to their advantage and to extend their area beyond what had been agreed ... As a result ... the protesters forced their way through the police cordon ... public order was disrupted ... because of the larger crowd, uncontrollable and incited by organised groups ... conditioned the applicants’ intent to participate in such actions, accompanied by chunks of tarmac and plastic bottles being thrown and violence towards the police otherwise being used. Conscious of their participation in spontaneously erupted disorder and wishing to take part in it, the defendants joined the mass movement ... ... the court takes into account the nature and the degree of [the applicant’s] involvement in the mass disorder ... and considers it possible to give him a sentence below the minimum punishment provided for by Article 212 § 2.” 81. The applicant was sentenced to two years and six months’ imprisonment, calculated on the basis of a two-year prison term under Article 212 of the Criminal Code partly concurrent with a one-year prison term under Article 318 of the Criminal Code. The applicant’s pre-trial detention counted towards the prison sentence. 82. The applicant appealed. He contested the first-instance court’s finding that mass disorder had taken place, and alleged that there had only been isolated clashes between the protesters and the police, caused by the authorities’ last-minute decision to alter the layout of the meeting venue and aggravated by their excessive crowd-control measures. He denied that the object he threw hit anybody; he alleged a breach of procedure for questioning in confrontation with the victim, police officer F., and complained that the court had refused to have the records of the latter’s interrogation conducted during the investigation read out. He also complained about the conditions in which he was escorted to the courtroom, the intensity of the hearing schedule, and that he had been placed in a glass cabin during the trial, claiming that it hindered his communication with counsel. 83. On 20 June 2014 the Moscow City Court upheld the first-instance judgment, also reducing his prison sentence to two years and three months, comprising a one-year-and-nine-month term under Article 212 of the Criminal Code and a nine-month term under Article 318 of the Criminal Code, to run partly concurrently. 84. On 8 September 2014 the applicant was released after serving his prison term. | 1 |
test | 001-142421 | ENG | UKR | CHAMBER | 2,014 | CASE OF ANATOLIY RUDENKO v. UKRAINE | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 5. The applicant was born in 1955 and lives in Kryvyy Rig. 6. In 2005-2006 the applicant created a local non-governmental organisation, as well as several newspapers. 7. On 16 November 2006 the Kryvyy Rig Transport Prosecutor’s Office instituted criminal proceedings against him on suspicion of interfering with gas pipeline repairs in July 2006. 8. On 17 May 2007 the Kryvyy Rig City Prosecutor’s Office opened another criminal case in respect of the applicant, on suspicion of extortion from a local politician, Ms B. As noted in the ruling, on 4 January 2006 the applicant had sent a letter to Ms B., demanding 20,000 Ukrainian hryvnias (the equivalent of about 3,000 euros) under the threat of dissemination of some discrediting information about her. He had also threatened her with physical violence in the presence of several witnesses. 9. The two aforementioned criminal cases were joined. 10. On 4 June 2007 the applicant was detained. 11. On 6 June 2007 the Dzerzhynskyy District Court of Kryvyy Rig (“the Dzerzhynskyy Court”) ordered that he remain in pre-trial detention. It referred to complaints by the victim, as well as her representative, about numerous telephone calls from the applicant during which he had made threats of violence. The court also noted that the applicant had refused to comply with the investigator’s summonses and had stated that he was considering absconding. 12. On 11 June 2007 an outpatient forensic psychiatric expert examination of the applicant was carried out in the Kryvyy Rig Psychoneurological Dispensary. The expert discerned indications of a paranoid personality disorder with a tendency towards “forming fixed ideas”. An inpatient examination was recommended for a more precise diagnosis. 13. On 14 June 2007 the Dzerzhynskyy Court ordered an inpatient forensic psychiatric examination of the applicant at Dnipropetrovsk Psychoneurological Centre with a view to establishing his ability to stand trial in the extortion case. The court referred to the expert’s recommendation of 11 June 2007. It also noted that the applicant had been showing “inadequate behaviour”. Furthermore, the case file contained copies of threats and clearly slanderous statements he had made to the victim and certain third parties. 14. On 15 June 2007 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal against the detention order of 6 June 2007. 15. On 20 June 2007 another case was opened against him on suspicion of extortion. This time the applicant was suspected of having threatened Mr S. and his family and of having extorted 3,000 US dollars from Mr S. in May 2007. 16. On 27 June 2007 the applicant was taken to the Dnipropetrovsk Regional Psychiatric Hospital for an inpatient forensic psychiatric examination in the framework of the criminal case regarding the charge of extortion from Ms B. 17. On 25 July 2007 the investigator in charge applied to the Dzerzhynskyy Court for an extension of the applicant’s pre-trial detention (which was to expire on 4 August 2007) till 17 August 2007, because more time was required to complete the investigation. In particular, the following investigative measures were still to be carried out: completion of the applicant’s forensic psychiatric examination, a confrontation between the applicant and Mr S., and the questioning of a number of witnesses. 18. On the same date the Dzerzhynskyy Court granted the aforementioned application and endorsed its reasoning. 19. On 26 July 2007 the inpatient forensic psychiatric examination of the applicant (see paragraph 16 above) was completed. The experts examined, in particular, the applicant’s personal history and the case-file materials, including the wording of his alleged threats to Ms B. They also carried out a psychological and psychiatric evaluation. The commission worded its conclusions as follows: “Mr Rudenko has never suffered, and is not suffering now, from any chronic psychiatric illness. He has showed in the past, and presently shows, a paranoid personality disorder. This conclusion is confirmed by his medical history, the materials of the criminal case file, and the results of the present clinical psychiatric examination which discloses that throughout his life the applicant has manifested such personality traits as egocentrism, extremely high self-esteem, tendency to make categorical and subjective judgments, susceptibility and extreme sensitivity to failure and situations infringing on his personal interests, a tendency towards a distorted perception of reality and the attitudes of those around him, militant and persistent assertion of his rightness and importance, subjectivism, rigidity of opinions and emotions, a tendency to be tendentious and contrived in forming judgments, and tenacity in the defence and implementation of his ideas. The aforementioned personality characteristics are not manifested to a large degree, are not accompanied by serious abnormalities of memory, thinking, critical abilities or psychotic symptoms and would not have undermined his ability to be aware of and to control his actions at the time of the offence he has been charged with. [...] The present psychiatric condition of [the applicant] is such that he is aware of and can control his actions (or inactivity). He does not require involuntary medical treatment.” 20. On 9 August 2007 the investigator declared the pre-trial investigation complete and provided the applicant with access to the case file. 21. On 14 August 2007 the case was referred to the court for trial. 22. On 9 September 2007 the applicant requested the Dzerzhynskyy Court to replace his detention with release on bail in the amount of 20,000 Ukrainian hryvnias (at the time, equivalent to about 2,900 euros). He submitted that he had no criminal record, was well integrated socially and that remanding him in custody had been an unjustified preventive measure. 23. On 17 September 2007 the court held a preparatory hearing for the trial. It rejected the aforementioned request and decided to keep the preventive measure in respect of the applicant unchanged. The court noted that the considerations advanced by him had already been duly examined prior to his remand in custody. Furthermore, given the fact that the victim, Ms B., was a well-known local politician, the court decided to conduct the hearings in camera. 24. On 25 December 2008 the Dzerzhynskyy Court ordered another in-patient forensic psychiatric examination of the applicant, with a view to establishing his ability to stand trial in the criminal cases regarding the charges of extortion from Mr S. and the interference with the gas pipeline repairs (see paragraphs 7 and 15 above). 25. From 30 January to 26 February 2009 the applicant underwent an examination in the Dnipropetrovsk Regional Psychiatric Hospital. 26. On 26 February 2009 a commission of six experts (with the involvement of the three experts who had prepared the previous report of 26 July 2007) delivered its report on the basis of a psychological and psychiatric evaluation of the applicant and the case-file materials. The experts also heard several witnesses. In particular, they questioned a person who had worked with the applicant in the 1990s and who described him as an intelligent but impulsive person who had some strange ideas and liked to be the centre of attention. The applicant’s former wife gave a similar description, having also noted that he was a kind person despite his difficult character. The applicant’s current wife refused to be questioned. A general practitioner who had treated the applicant for some unspecified condition in 2007 submitted that he remembered the applicant for his emotionally-expressed nationalist ideas. A lawyer who had often encountered the applicant in court when acting as a representative described him as a bold and provocative person with a tendency to insult others. A circuit police officer, who had inspected the gas pipeline repairs site, submitted that he remembered the applicant on account of certain “hysterical outbursts” and that he had had the impression that the applicant had some mental issues. The general conclusions of the commission were worded as follows: “At the time of the events [...] Mr Rudenko was suffering, and is suffering presently, from a chronic psychiatric illness in the form of a paranoid personality disorder with delusional inclusions (“параноидное расстройство личности с бредовыми включениями”). This conclusion is confirmed by the anamnestic data, the materials of the criminal case file, the results of the present clinical psychiatric and experimental-psychological evaluation, which has disclosed that throughout his life the applicant has manifested such personality characteristics as egocentrism, rigidity in his attitudes, extremely high self-esteem, arrogance and extreme self-confidence, irrational feelings of injustice, a tendency to make categorical and subjective judgments, susceptibility and extreme sensitivity to failure and situations infringing on his personal interests, a tendency towards a distorted perception of reality and the attitudes of those around him, militant and persistent assertion of his rightness and importance, rigidity of opinions and emotions, bluntness, a tendency to be tendentious and contrived in forming judgments, tenacity in the defence and implementation of his ideas coupled with a tendency towards inertia and philosophising, and, as a result of all the aforementioned and against the background of what he perceives as the difficult and unfavourable development of the criminal investigation and trial, he has formed some fixed and delusional ideas about being persecuted. The aforementioned personality characteristics of [the applicant] manifest themselves to such a high degree that they can be considered to have undermined his ability to be aware of and to control his actions at the time of the offences he has been charged with. [...] The present psychiatric condition of [the applicant] does not enable him to be aware of his actions (or inactivity) or to control them. He requires involuntary medical treatment by way of admission to a psychiatric hospital with ordinary supervision. As to the [similar] questions regarding [the charge of extortion from Ms B.], they were already resolved in the report of 26 July 2007.” 27. On 3 June 2009 the Dzerzhynskyy Court found the applicant guilty of extortion from Ms B. As to the charge of extortion from Mr S., the court held that there was insufficient evidence of the applicant’s guilt. It also established that the applicant had impeded the gas pipeline repairs. The court noted that the applicant could not be held accountable for the criminal offences in question and required involuntary medical treatment in a mental facility. It stated, in particular: “It has been established that, at the time the offences were committed, Mr Rudenko behaved in a bold manner and without respect for the victims and others involved, that he made threats to the health and lives of the victims, and that he took deliberate steps to impede the gas pipeline repairs, thus endangering the health and lives of the public. Although Mr Rudenko has not made a direct attempt on anybody’s life, his present mental condition warrants his involuntary admission to a psychiatric hospital, because he is a dangerous person ...” 28. On 23 December 2009 the Court of Appeal quashed the decision of the first-instance court of 3 June 2009 as it had been delivered in the applicant’s absence. It stated that his presence had been obligatory unless he had expressly refused to attend or had been prevented from attending by the nature of his illness. The appellate court also noted that although the Dzerzhynskyy Court had found that the applicant’s guilt had not been proven in respect of the charge of extortion from Mr S., no decision had been taken as regards the termination of that part of the proceedings. The case was therefore remitted to the first-instance court for fresh examination. The appellate court also decided to keep the preventive measure in respect of the applicant (detention) unchanged, without explanation. 29. On 29 June 2010 the Dzerzhynskyy Court allowed the applicant’s waiver of the services of several lawyers who had been representing him. Instead, it appointed a lawyer from the local bar association to represent his interests in the proceedings. 30. On 11 October 2010 the Dzerzhynskyy Court, at a hearing attended by the applicant and his appointed lawyer, ordered another forensic psychiatric examination of the applicant, with a view to answering the following questions: (1) whether the applicant was suffering from any mental illnesses at the time; (2) whether he was aware of and able to control his actions; and (3) whether the nature of his illness could be regarded as an impediment to his participation in court hearings. The applicant did not object in principle to such an examination, as long as it was carried out by an independent expert. 31. From 19 November to 16 December 2010 an examination was carried out at the Dnipropetrovsk Regional Psychiatric Hospital. According to the ensuing report, the applicant was suffering, at the time of the examination, from a “chronic paranoid personality disorder with delusional inclusions”. His psychiatric condition was deemed to prevent him from participating effectively in court hearings. As noted in the part of the report entitled “Psychological examination”, the applicant behaved in a free and friendly manner, demonstrating an advanced intellect and good memory and analytical skills, but also demonstrating a certain superiority and rigidity in his opinions. The overall findings of the report were practically identical to those of 26 February 2009. 32. On 5 April 2011 the prosecutor dropped the charges against the applicant as regards the interference with the gas pipeline repairs and the extortion from Mr S. 33. On 8 April 2011 the Dzerzhynskyy Court discontinued the proceedings against the applicant in so far as the aforementioned charges were concerned. 34. On the same date the court, following a hearing at which the lawyer earlier appointed for the applicant, but not the applicant himself, had been present, found the applicant guilty of extortion from Ms B. Relying on the medical reports concerning the applicant’s mental health, the Dzerzhynskyy Court held that, although the applicant had been aware of his actions when he had committed the offence in question, his mental health had subsequently deteriorated to an extent warranting involuntary medical treatment. The court therefore ordered that the applicant be admitted to a psychiatric hospital for treatment under ordinary supervision. The proceedings were stayed until the applicant’s recovery. 35. The applicant’s son (who had joined the proceedings as his representative) appealed. He complained, in particular, that the applicant had wrongly been denied his right to participate in the hearing. He also complained that the applicant’s right to be presumed to be of sound mind had been violated. He noted in this regard that the experts had reached opposite conclusions about the applicant’s mental health, without any explanation for such a change in their position. Furthermore, the applicant’s son submitted that neither the applicant nor his family had agreed to the appointed lawyer representing the applicant and that the lawyer had been acting contrary to the applicant’s interests. 36. On 16 August 2011 the Court of Appeal upheld the decision on the involuntary medical treatment of the applicant. It noted that, as the medical experts had found, the nature of his illness had been an impediment to his participation in the court hearings. The appellate court also held that the application of the chosen measures in respect of the applicant was justified by the fact that he had committed a “socially dangerous” crime and that he was suffering from a mental illness. 37. On 14 September 2011 the applicant was transferred from the SIZO to the Geykivska Psychoneurological Hospital in the Dnipropetrovsk region (“the Geykivska Hospital”). 38. On 4 October 2011 the applicant was examined by a panel of three doctors from the Geykivska hospital who concluded that his condition had stabilised and that he was not in need of any involuntary inpatient treatment. More specifically, the doctors observed that despite his chronic paranoid personality disorder with “delusional inclusions”, the applicant had been demonstrating orderly behaviour and a stable mood, with no aggressive tendencies. He regretted his earlier behaviour and had submitted that he understood that it had been wrong. The panel therefore sought the lifting of the involuntary medical treatment order imposed by the court, and an order for outpatient psychiatric treatment to replace it. 39. On 14 October 2011 the Kryvyy Rig Court allowed the application of the Geykivska Hospital specialists. 40. On 19 October 2011 the same panel of the Geykivska Hospital specialists issued another report, in which they noted a drastic deterioration in the applicant’s mood and behaviour: he had become irritated, angry and aggressive and had conflicts with other patients. Accordingly, the doctors retracted their earlier conclusion of 4 October 2011 as premature and asked the court to order that the applicant continue to be treated on an involuntary basis. 41. On 29 November 2011 the Court of Appeal quashed the decision of the Kryvyy Rig Court of 14 October 2011, with reference to the medical report of 19 October 2011. 42. On 20 December 2011 the Kryvyy Rig Court decided that the involuntary medical treatment of the applicant ordered on 8 April 2011 should be continued. 43. On 22 March 2012 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s cassation appeal (submitted via his son) against the lower courts’ decisions of 8 April and 16 August 2011. 44. On 26 April 2012 the applicant was examined again by a panel of three specialists from the Geykivska Hospital (one member had been replaced). They noted that he was well oriented and gave adequate replies to questions, was brief and monotonic, expressed some delusional ideas about being persecuted by criminals, and remained self-confident and categorical in his judgments. As a result, they considered that the applicant’s involuntary medical treatment should be continued. 45. On 11 May 2012 the Kryvyy Rig Court ruled accordingly. Although the applicant, who was present at the court hearing, objected to that decision and submitted that he was in perfect health, the court considered, on the basis of the aforementioned medical report, that he was not able to critically assess his condition. 46. On 14 September 2012 the panel of doctors from Geykivska Hospital (in the same composition as on 26 April 2012) examined the applicant again. Their conclusions were similar to those set out in the report of 4 October 2011 (see paragraph 38 above). 47. On 8 October 2012 the Kryvyy Rig Court granted the specialists’ request and lifted the order for involuntary medical treatment in respect of the applicant. 48. On 26 October 2012 the applicant was discharged from the hospital. There is no information in the case file on the resumption of or any developments in the proceedings that had been stayed earlier (see paragraph 34 above). 49. On 25 April 2013 he was examined by the Kharkiv Regional Bureau of Forensic Medical Examinations at his own request. 50. On 20 May 2013 the Bureau issued its report. It noted that the only condition the applicant had been diagnosed with in the course of his previous forensic psychiatric examinations was a paranoid personality disorder. Such a diagnosis could not be regarded as fully grounded as it did not comply with the diagnostics criteria of the international statistical classification of illnesses. In particular, while that diagnosis implied a lack of social integration, the applicant had always been well adapted socially and had run a successful business. The wording “delusional inclusions” also raised questions as to its clinical accuracy. The applicant’s excessive personal involvement in various situations, as well as the fact that he had been overly emotional and made peculiar statements, did not imply delusion. 51. Generally, it was concluded that there was nothing in the case file to show that the applicant had suffered from any serious psychiatric disorder rendering him unaccountable for his actions. Even if, presumably, the applicant’s behaviour in the stressful situation of his criminal prosecution and detention had disclosed some peculiarities, the report concluded that, given his sufficient social adaptation prior to the criminal proceedings and the absence of a record of any psychiatric issues in the past, the applicant had not suffered from a psychiatric disorder between January 2006 and July 2007 and between August 2007 and November 2012 which would have warranted his involuntary treatment and prevented him from participating in court hearings. 52. Furthermore, the Bureau expert criticised the report of 19 October 2011 as having reversed the earlier conclusion of 4 October 2011 that the applicant had not been in need of involuntary psychiatric treatment without any persuasive grounds. This reversal had been made even though the description of the applicant’s psychiatric condition had remained the same. 53. On 13 June 2013, following a request by the applicant’s lawyer, an independent forensic psychiatric expert with thirteen years of work experience issued a report regarding the applicant’s examinations of 26 July 2007, 26 February 2009 and 16 December 2010 (see paragraphs 19, 26 and 31 above). The expert considered only the first-mentioned report to be scientifically grounded. He criticised the other two for their incompliance with the rules of diagnostics and the absence of any explanation as to why the same behaviour of the applicant, which had earlier been regarded as normal, had later been considered as disclosing a psychiatric disorder. The expert also concluded that the applicant’s right to attend court hearings in person had been restricted without any valid medical reason. | 1 |
test | 001-174416 | ENG | BGR | CHAMBER | 2,017 | CASE OF SHALYAVSKI AND OTHERS v. BULGARIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 5. The applicants were born in 1966, 1967, 1988 and 2003 respectively and live in Blagoevgrad. The first and second applicants are cohabiting partners and the fourth applicant is their daughter. The third applicant is the second applicant’s son. At the relevant time all the applicants were living together. 6. The first applicant suffers from muscular dystrophy, which has gradually progressed since the age of twelve. Currently (and at the time of the relevant events), he is only able to move his head and hands. He needs assistance for most daily activities, which is usually provided by the second applicant or his care assistant. According to the applicants, the care assistant, who was specially trained and had taken care of the first applicant for many years, was the only person with whom the latter felt secure when he needed to go out of his home, in particular to go to his office, as this involved the assistant carrying him and installing him in a car. The assistant also drove the applicant’s car. At the time the first applicant owned a pawnshop and managed several companies. One of his activities was giving short-term loans at high interest rates. 7. In 2010 the prosecution authorities opened criminal proceedings against the first applicant for usury. Prior to that, in 2006 and 2009 he had been convicted for an abuse in the exercise of a disputed right and for threatening another person. 8. On 7 April 2011, at about 11 a.m., the first applicant, while travelling in his car which was being driven by his care assistant, was stopped by police officers and ordered to follow them to the police station. Upon arrival, his care assistant was arrested. While the parties have not specified the grounds for this arrest, it is very likely that it was on the basis of the Ministry of the Interior Act, which allowed, inter alia, the detention for up to twenty-four hours of a person suspected of having committed an offence, and that it was related to the investigation against the first applicant. 9. The car remained in the carpark and the first applicant remained in it. Unable to move, he stayed in that position for several hours, guarded by two police officers. At about 3 p.m. his care assistant was brought out under guard to move him to another car, because the first one was going to be impounded as physical evidence. On two or three occasions during the day the second applicant was allowed to come to help him with his physical needs. 10. During the time the first applicant spent in front of the police station, police officers searched his home, his office and his pawnshop, as well as his parents’ flat and house. They also searched the applicant’s cars. The operation against him had been planned in advance. 11. At about 6 p.m., while still in the car and in the presence of his lawyer who had arrived in the meantime, the first applicant had charges of usury brought against him by an investigator. For that purpose the police officers installed the necessary equipment in the carpark, including a computer and a printer. The applicant was invited to make a declaration in relation to the charges; he stated that he was not guilty. 12. The first applicant remained in the car in front of the police station until about 7.30 p.m. After that he was brought in front of the building of the Blagoevgrad Regional Court, which was to hold a hearing to examine an application by the prosecution to place him under house arrest. In the court carpark police officers attempted to take the applicant out of the car and place him in a wheelchair, despite the second applicant’s protests. They gave up, after becoming aware that they could hurt him. After that his care assistant, still in detention, was again brought out under guard. The first applicant was thus able to get out of the car at about 9.30 p.m. He attended the court hearing, which ended at 11.30 p.m. The care assistant remained with him until the end of the hearing. The prosecution’s application to have the first applicant placed under house arrest was allowed. 13. The applicant’s care assistant was released on 8 April 2011 and has not been questioned any further or prosecuted. 14. The Blagoevgrad Regional Court’s decision to place the first applicant under house arrest was upheld on appeal by the Sofia Court of Appeal on 14 April 2011. Before taking its decision, that court heard evidence from, among others, A.Z., who stated that she was the first applicant’s sister and a neurologist and gave evidence concerning the applicant’s state of health. 15. On 22 January 2016 the first applicant had charges brought against him once again, in a detailed bill of indictment listing more than a hundred occasions where he had given loans to individuals at high interest rates. According to reports published in the Bulgarian media, in November 2016 he was indicted and is standing trial at present. 16. The observance of the first applicant’s house arrest was supervised by the police. 17. Between 8 and 14 April 2011 there were no checks on whether he was complying with the measure. 18. On 15 April 2011 the first applicant was seen by patrolling police officers in the city centre. When asked to provide an explanation, he stated that he had gone out to buy something. The police checked on him at his home in the evening of the same day. 19. Between 16 April and 27 May 2011 police officers visited the applicants’ home to check on the first applicant on twenty-nine occasions, once a day and almost every day. On eight days there were no checks at all, and on another four days officers did not go to the applicants’ flat, but observed for some time the building’s entrance. On 29 April 2011 the applicant was met by officers in front of the building as he arrived in his car. 20. On 28 May 2011 officers checked on the first applicant on three occasions, and on two occasions on 30 May. On 31 May they visited the flat on three occasions, but on one of them were not allowed in. 21. On 1 and 2 June 2011 the second applicant did not allow the police into the flat. On 3 June they visited the flat five times; on one of the visits nobody answered the doorbell. 22. Between 4 and 20 June 2011 officers visited the applicants’ flat usually three or four times a day. One of the visits on 16 June was provoked by the fact that the applicant, having received authorisation to visit a physiotherapist, had not shown up for his appointment. 23. During some of the visits the fourth applicant, then eight years old, was present as well. Usually she was taken by her mother to another room. The third applicant, then twenty-three years old, was working full time during this period. 24. On 21 June 2011 the first applicant was released from house arrest, by a decision of the Sofia Court of Appeal, which noted in particular his grave state of health and the fact that much of the evidence in the investigation against him had already been collected. | 1 |
test | 001-181595 | ENG | MLT | CHAMBER | 2,018 | CASE OF FALZON v. MALTA | 3 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1945 and lives in Naxxar. 6. The applicant served as a member of parliament between 1976 and 1996, and he served as a government minister between 1987 and 1996. Even before he was elected to Parliament he had already established himself as a political commentator in the media and regularly authored opinions related to national politics which were published in national newspapers. Upon his retirement from Parliament the applicant began writing weekly opinion columns in the newspaper Maltatoday and another weekly paper. 7. On 6 May 2007 Dr Michael Falzon (referred to hereinafter as M.F., for ease of reference – as he has the exact same name as the applicant), the deputy leader of the Malta Labour Party (MLP), delivered a speech in public, which was reported on the national media. During the speech he informed the public that he had received an anonymous email and threatening letters, in respect of which he had complained directly to the Commissioner of Police (CoP). He furthermore referred to the discussion he had had with the latter during which he had asked him to investigate the issue. 8. The most relevant parts of the speech read as follows (translation done by the Registry): “...But the fact that today, one opens the newspaper Illum, front page, and reads the editorial by S.B., who chose to speak about a pending police investigation, about an anonymous email that I received and about a threatening letter that I received... this is a level which should not be acceptable in our country. And whoever is behind these stories – wherever he might be – and let me be clear – wherever he might be – he should be ashamed...ashamed! ... Yes I received an anonymous email...and I received threatening letters last November. I did not disclose this to my family. Today they were told by Maltatoday...I can tell them myself...But when something illegal occurs, I go to the police. And that’s what I did. And I went to the CoP, since people who put forward such stories can disclose them I can also do so now for everyone to know. So I went to the CoP. I will tell you what I told him...and he will confirm it. He told me: ‘What will we do, Mike, if it were to [turn out to] be X or Y?’ I told him: ‘I am telling you as of now, Mr R. Be it whosoever in this country, I am authorising you as from now, in advance, even before you start the investigation, to proceed. Because what is illegal, I condemn it, and we as a party always condemned illegality. And we come to [the subject of] the anonymous email [U wasalna fuq email anonima]. And today ... K.S.N. [a journalist], this person phoned me yesterday as well, told me ‘But you know, this is an innocuous email, it contains nothing.’ And I tell K.S.N. and [other purveyors of] this type of journalism, that when they saw [that] there is a police investigation, is it you, you decide what is illegal and what is not [?] Because [he was] an admirer. And [the sender] of this email, true. I will speak to him, of course. But note, that he sent it anonymously! Generally admirers tell you, ‘Hi, Mike, is everything alright?’ They do not write anonymously. And K.S.N said other things as well, and so did S.B. [the editor of Maltatoday]. Among other things he said because he knows a lot he also phoned me yesterday, and I told him. I told him: ‘You are breaking the law. It is now up to the police’. He also said that apparently apparently from the investigation into the email conducted by the police, nothing had emerged, and that it will stop there. And I will tell him now in public: ‘Mr K.S.N. and Mr S.B., you have not discovered America!’ Words to that effect have been said by an employee of our party for weeks...at the Centre...for weeks. And he told me that I will make a fool of myself. I will not interfere. I will not interfere with the police investigation. That is for them to see. But yesterday I told the CoP, and Inspector C., that such discourse had long been doing the rounds at the Centre [party club]. I gave [them] the names, and it is now up to the police to decide whether to find out where this information originated from, and who is deciding matters in this country.” 9. On the same day K.S.N., a journalist, published an article in the newspaper Illum, entitled “Email sent to M.F. brings admirer before the Police”. The article started off by stating that an innocent email sent to the deputy leader of the MLP had been passed on to the police, who in turn had identified the sender and subsequently questioned him. It concluded with the statement that when M.F. was asked about him reporting the matter to the police, the deputy leader of the MLP (that is to say M.F.) replied that “he would not confirm nor deny” that he was aware of the case. 10. On 13 May 2007 Maltatoday published an opinion by the applicant entitled “Policing one’s enemies”, prompted by the above-mentioned speech, in which the applicant queried the manner in which the two main political parties perceived the police force. The article’s opening paragraphs read as follows: “During a recent short visit to London, I had the opportunity to watch the film ‘The Lives of Others’ (original title: Das Leben Anderen [sic]) an Academy Awardwinning German movie, set in the 1984 cultural scene of East Berlin, monitored by secret agents of the Stasi: the secret police of the former German Democratic Republic (East Germany). The film puts the methods of the Stasi at the centre of the plot and as a result clearly exposes their repulsive behaviour. The police force, I believe, is simply responsible for making sure that people obey the law, for protecting people and property and for arresting criminals. Using the police in a different context and for the purpose of controlling people’s freedoms is the basic notion of the typical police state, even if you insert the word ‘democratic’ in your country’s official title. For me, the biggest unease was caused by the realisation that the film was set in a period that is only some twenty-two years ago, which in Malta corresponds to the Mintoff [former Labour Party leader and Prime Minister] years when I was already active in politics. Little did I think that events that were to unfold when I was back in my country would make me wonder whether the PN [Nationalist Party] and the MLP look at the duties of the police in somewhat different manner.” 11. Other relevant parts of the article, read as follows: “I say this with deep regret, but I can only be seriously perturbed by the ease with which MLP Deputy Leader Michael Falzon [M.F.] persuaded the Commissioner of Police to investigate the source of a trivial and unimportant anonymous e-mail that he had received. More so, when this e-mail could only have been misguidedly considered ‘suspicious’, and even then in an absolutely far-fetched way, in the context of the infighting and internal feuds within the MLP. According to what Dr. Michael Falzon [M.F.] said, the Police Commissioner who apparently is on familiar first name speaking terms with Dr. Falzon [M.F.] asked whether he would proceed in the same fashion whether the culprit eventually proved to be X or Y; implying that the Commissioner was offering to act in a discriminatory way according who the ‘guilty’ person was. Matters are even more worrying because when the police successfully traced the original writer and dispatcher of the e-mail, they impounded his computer and obliged him to go and sign daily at the Police Headquarters even though he was not accused of any crime. Has not MLP Deputy Leader Michael Falzon [M.F.] successfully used the Police Force to control the freedom of an innocent, law-abiding private citizen whom he suspected could be a political enemy? And has not somebody in the police force abused of his powers by condescending to do this for the advantage of the faction led by Michael Falzon [M.F.] in the MLP’s internal squabbles? Why should the police force interfere in Labour’s internal politics where, it is obvious, there are too many cooks spoiling the broth?” ... “Yet the ease with which the MLP Deputy Leader phones him up to complain, and even worse the ease with which this leading politician is provided with a service that cannot be linked in any way with the pursuit of ‘criminality’ as we know it makes one wonder.” ... “These events seem to indicate that within Labour there are people who can influence and interfere in decisions taken by the Police Force. This is happening when they are still in Opposition. Asking what would happen in this area, once they are in government is, therefore, a legitimate question.” ... “So what is the Government doing about this? Does the MLP Deputy Leader who happens to be my namesake, carry more weight and influence with the Commissioner of Police than the Deputy Prime Minister who is politically responsible for the Police Force?” ... “I firmly believe that Tonio Borg [then Minister of Interior] should set up a high powered inquiry with the specific task of getting to the bottom of this sordid soap opera. He owes it to those who dedicated the best years of their life to ensure the personal freedom of each and every citizen of Malta. He owes it to all present and future Maltese citizens who did not live the past so that they will live in a future where no one controls their freedom and hence their lives.” 12. On 17 July 2007 M.F., the deputy leader of the MLP, instituted libel proceedings against the applicant (and against the editor of the newspaper) under Article 28 of Chapter 248 of the Laws of Malta (see the “Relevant domestic law” section below), and sought damages, claiming that the abovementioned extracts of the article had been defamatory. 13. By way of defence the applicant claimed that (a) the published article had contained his opinion and had consequently constituted a fair comment and the expression of a value judgment, (b) any facts had been substantially correct and based on what had been declared publicly by M.F. himself a few days prior to the impugned publication, and (c) the claimant was a person occupying a public office and was consequently bound to accept a wider level of criticism. 14. During the proceedings the Court of Magistrates heard the testimony of the plaintiff (M.F.), the CoP, the applicant, the editor (S.B.), and two other journalists (A.B.D. and K.S.N.). It saw documentation submitted consisting of an email exchange between the MLP deputy leader and a third person (J.B.), as well as the transcript of the deputy leader’s speech and copies of two articles, both entitled “Email sent to deputy leader brings an admirer before the Police” (one having been published online and one in print). 15. The CoP testified as follows (as summarised by the firstinstance court): - He denied that M.F. had persuaded him or influenced him in respect of his doing his job in connection with the case at issue; - M.F. had requested and obtained a normal appointment with the CoP; when they met M.F. had showed him a letter which the CoP considered to be “injurious and full of threats” towards M.F.; the latter requested the CoP to investigate the contents of the letter; - M.F. also informed the CoP that he had received an email, which was later passed on to the CoP, following an invitation to do so by the same CoP; - The CoP asked M.F. whether he intended to initiate proceedings against the person who should result to be responsible, given that the prosecution of such a crime would require the injured party to lodge a complaint; - The documents which had been passed on to the CoP had in turn been passed on to the Criminal Investigation Department (C.I.D.) for further investigation, and the CoP had had no further contact with M.F. concerning the case, which had not been given any particular priority on his part. 16. The applicant failed to make written submissions within the stipulated timeframe, and his late submissions were not accepted by the court that proceeded to judgment. 17. By a judgment of 4 May 2010 the Court of Magistrates found the applicant guilty of having defamed the deputy leader of the MLP and was ordered to pay him 2,500 euros (EUR) in damages. Costs were also to be paid jointly by the applicant and the editor (who was also ordered to pay EUR 1,000 in damages). 18. The court referred to the CoP’s witness testimony to explain the factual situation. In its view, while noting that public figures such as politicians were subject to wider limits of acceptable criticism, they were nevertheless protected under Article 10 § 2 – their protection having to be weighed in relation to the interests of the open discussion of political issues. The court considered the article defamatory as it had tarnished and impinged on the claimant’s reputation. It rejected the applicant’s defence, noting that it had not been proved that: i) M.F. had manipulated the CoP due to the political office that he held in the party in which he militates; ii) that with his actions M.F. had offended the Police Force since he used the Police Force for his personal aims; iii) that M.F. was some deus ex machina who pulls the strings of the Police Force, from behind the scene, to reach his goals. 19. The applicant appealed. 20. By a judgment of 6 October 2010 the Court of Appeal (in its inferior jurisdiction) rejected the appeal and confirmed the firstinstance judgment. It considered it appropriate to analyse and mention all the relevant evidence that had not been referred to by the firstinstance court: - M.F., as plaintiff and now respondent, submitted that the reader had been induced to believe that he had persuaded the police to harm someone, when all he had done was to file a report requesting that the anonymous letters and emails he had received be investigated. - The court also referred to the statements made by the CoP (see above). - The applicant (appellant before the Court of Appeal) explained that in his view the email received by M.F. had been innocuous and that M.F. had thus reacted disproportionality. According to the applicant, from the speech delivered by M.F. publicly (at the Labour Centre in Rabat), it transpired that there was a certain familiarity between him and the CoP; indeed if that had not been so M.F. would have reported the incident at a police station like an ordinary citizen, and not with the CoP. In his view it was natural to question whether M.F. had used the CoP in connection with the internal affairs of the party. Even when cross-examined, he reiterated that influence had been exerted by M.F. on the CoP. - The editor testified that in his opinion the speech delivered by the deputy leader of the MLP indicated that the latter had put pressure on the CoP to investigate the matter when he had met up with him to discuss the emails and the anonymous letters. - In reply to a question, while being cross-examined, as to whether M.F. had put pressure on the CoP, K.S.N. replied that he was aware that a report had been filed concerning the email and that on the same day of publication, M.F. had declared that he was authorising the CoP to institute proceedings against whomever turned out to be the culprit. 21. The Court of Appeal was of the view that, having examined all the relevant evidence and thus gaining an understanding of the circumstances preceding and surrounding the article, the applicant’s assumption could not be considered as constituting fair comment. In the eyes of the ordinary reader, the comments and criticism made by the applicant could not be considered as objectively reasonable, made in good faith and balanced, given that they were based on a certain assumption – that M.F. had exercised influence over the CoP with the aim of controlling people’s freedom; the attack on M.F. had thus exceeded the limits of just criticism. M.F. had had every right to file a report, and the fact that he was politically active had not justified such an attack, which had not been corroborated by factual evidence. It considered that even though the manifestation of free expression was an established principle, that freedom was to be exercised within those just limits of the canon of objective veracity of facts and restraint (entro l-limiti ġusti ta’ dak ilkanoni tal-verita’ oġġettiva tal-fatti u tal-kontinenza), as elaborated by the most progressive doctrine and jurisprudence on topical issues and the exercise of criticism. 22. On 9 March 2011 the applicant instituted constitutional redress proceedings complaining that he had suffered, inter alia, a breach of Article 10 of the Convention as a result of the judgments in the libel proceedings. He argued, in substance, that his opinion piece had consisted of criticism, which was a legitimate manner of expressing an opinion about the work of a public figure and was allowed in a democratic society noting that the extensive protection given to such a public figure served to silence free expression. He further claimed that the ordinary courts had referred to insinuations and allegations which had not been made or implied by the applicant in his article, such as the statement by the Court of Magistrates to the effect that M.F. had “manipulated” the CoP or that the latter had been subjected to pressure which had “impeded the exercise of his function” as well that M.F. “was a deus ex macchina pulling the strings of the Police Force”. The applicant emphasised that these were gratuitous inventions by the ordinary court which had not been mentioned in the article. 23. By a judgment of 30 March 2012 the Civil Court (First Hall) in its constitutional competence dismissed the applicant’s claims. 24. It considered that the applicant was attempting to obtain a revision of the ordinary proceedings and noted that it was not quite true that the applicant had never implied that M.F. had “manipulated” the CoP indeed his article had precisely questioned “has not the MLP deputy leader MF successfully used the Police Force to control the freedom of an innocent lawabiding private citizen whom he suspected could be a political enemy?”. In any event, even if the applicant considered the statements made by the Court of Magistrates in its reasoning to be invented, this had not constituted a breach of his Article 10 rights. 25. The court noted the reference to the Stasi with which the applicant had started his article and his narrative of M.F.’s actions, which had resulted in an individual being investigated and subsequently having his computer seized. In that context he had asked whether M.F. had “used” the police against a political opponent. The applicant criticised the CoP for following up on the indications given by M.F., to the extent that the applicant had called on the Minister of the Interior to look into the matter. Indeed, the CoP was also an object of the applicant’s criticism. 26. According to the court, the word “uses” did not mean “manipulate”, as implied by the Court of Magistrates, but within the context of the article at issue, it nevertheless implied an element of abuse. The criticism against M.F. was that he had taken advantage of his political position to put pressure on the police in order that the latter would take action in persecuting an innocent citizen. The court considered that it was legitimate for a victim of a crime to complain to the police, and then it was for the police to act on the matter. Further, the initial reference to the “Stasi” in the opening of the article had been regrettable; even if it was not intended to do so, it had given the impression of a comparison being made. 27. In its view, even accepting that a public person was subject to greater limits of acceptable criticism, given the article at issue, the ordinary courts had not failed to strike a fair balance between the competing rights. 28. The applicant appealed. 29. By a judgment of 11 January 2013 the Constitutional Court dismissed his appeal. 30. It noted that the ordinary court judgments and the penalty inflicted constituted an interference with the applicant’s rights under Article 10, which had been prescribed by law (Article 28 of the Press Act). It emphasised the importance of free expression for the press; nevertheless, it noted that the press could not exceed certain limits and had to exercise its function in a manner consistent with its obligations and responsibilities particularly as regards the reputation and rights of others. Acknowledging that politicians were subject to wider limits of acceptable criticism, it nevertheless noted that they remained holders of their right to the protection of their reputation. The quest for reasonableness and proportionality in such circumstances had to be seen against the background of the importance of public debate. 31. Noting the difference between facts and value judgments (the latter not being subject to the need for proof), it considered that a person could not hide behind an opinion or value judgment to impute untrue facts in respect of other persons. It considered that the Court of Appeal had reached a legitimate conclusion in finding that the applicant’s opinion piece had contained declarations which assumed as a fact that the MLP deputy leader had illegitimately and abusively influenced the police and also that the exercise of illegitimate and abusive pressure on the CoP had not been proved as a fact. 32. The Constitutional Court noted that while the article had contained a series of questions (in respect of which the applicant argued that it was for the reader to answer), it had also contained assertions, some of which had not reflected the real facts, according to the Court of Appeal. Further, the Constitutional Court considered that just because an alleged fact was given the form of a question, this did not entail that it was no longer a factual assertion but rather became a value judgment. Even the way in which the question was posed, namely “Has not M.F. ...” clearly included a factual affirmation and clearly invited a positive reply. Similarly, the quest “Does the MLP Deputy Leader, who happens to be my namesake, carry more weight and influence with the Commissioner of Police than the Deputy Prime Minister, who is politically responsible for the Police Force?” was nothing but an allegation of fact in the form of a question. 33. Lastly, the Constitutional Court noted that the amount of the fine had not been particularly severe, so much so that the quantum had not been appealed. There was therefore no violation of Article 10. | 1 |
test | 001-171525 | ENG | RUS | CHAMBER | 2,017 | CASE OF ORLOVSKAYA ISKRA v. RUSSIA | 3 | Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom to impart information);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant is a non-governmental organisation that publishes Orlovskaya Iskra, a newspaper in the Orel Region. As of March 2003, the Orel branch of the Communist Party of the Russian Federation and the Orel branch of the People’s Patriotic Union of Russia, a nationwide movement, were listed as the applicant organisation’s founders. This information was specified on the front page of the newspaper. 6. Pursuant to the Articles of incorporation, the founders were in charge of setting up an editorial board and determining the editorial policy; in the case of disagreement on the editorial policy the matter was to be resolved by a meeting of the founders’ representatives. 7. During the election campaign for the State Duma, the lower chamber of Parliament, on 2 December 2007, the applicant organisation expressed to the Electoral Committee of the Orel Region (see paragraph 41 below) its intention to accept proposals for publication for a fee and, as required by law, published the fees applicable to the publications on behalf of political parties (30,000 roubles (RUB) per page). The applicant organisation specified that the above fee “was not applicable to the newspaper’s founder”. The applicant organisation signed a contract with the Communist Party for this purpose for publications on 7, 14, 21 and 28 November 2007. The contract mentioned a fee of RUB 30,000 per page; the total amount of the contract was RUB 300,000 for ten pages. Some of the publications in the applicant organisation’s newspaper on these dates did mention the Party’s sponsorship, others did not (see paragraph 8 below). 8. Apart from the publications mentioned above, on 7 and 14 November 2007 the applicant organisation’s newspaper also published, in the same weekly issues, two articles written by its staff correspondent, Ms O. Both articles were critical of Mr Stroyev, the then governor of the Orel Region and the former Chairman of the Federation Council (the upper chamber of the Russian Parliament). Governor Stroyev was a candidate at those elections: he was no. 1 on the regional list of United Russia (Единая Россия), a political party aligned with President Putin and dominant in the State Duma. The Communist Party was one of the main opposition parties at those elections. 9. The first article was entitled ‘Hatred, Stroyev style’. It can be summarised as follows. It described Governor Stroyev as a person consumed by hatred towards people who oppose him. The journalist referred to the decision of the governor to wind up a publicly owned newspaper, Gorod Orel. According to journalist O., that decision was a direct consequence of a conflict between Mr Stroyev and the newspaper’s former editor-in-chief who kept criticising Stroyev’s policies. The speaker of the municipal council, who was politically weak owing to a corruption scandal involving municipal land, was unable to oppose the decision of the governor to close the newspaper. Most of the regional journalists under Stroyev became servile; those few who, like the editor-in-chief of Gorod Orel, remained independent and refused to flatter Mr Stroyev, were subjected to pressure and fell victim to Mr Stroyev’s hatred. The article then turned to the story of two deputies of the regional legislature. They were elected as members of the Communist Party and were originally in opposition to Mr Stroyev, but later they both became members of United Russia. One of them was a businessman. The author suspected that the first deputy had changed political sides because of very serious pressure exerted by the Stroyev administration on local businessmen. The second deputy was a history professor. The article suggested that his decision to leave the Communist Party was also forced. The journalist ironically supposed that in fact Mr Stroyev did not want United Russia to win the elections, since he was doing everything to make the electorate angry with the ruling party. In 2006 the town population voted in large numbers for the Communist Party, which was in fact a vote of disapproval of Mr Stroyev’s policies. However, the journalist supposed that Mr Stroyev’s personal interests always prevailed over those of the United Russia party. The town mayor tried to protect himself by joining United Russia, but this was a weak defence against Mr Stroyev’s hatred. The only people Mr Stroyev loved and defended were his own relatives and protégés. The article cited the example of Mr Stroyev’s nephew, a businessman suspected of abuse of public funds and fraud. His case was still pending; the article suggested that regional law-enforcement agencies being discouraged from pursuing the investigation actively. The article then turned to the dismissal of the head of the regional public Audit Chamber, who reported on abuses of funds allocated for road maintenance. The newly appointed head of the Audit Chamber, who was Mr Stroyev’s man, came to the opposite conclusion, namely that the manipulation of the road funds had been perfectly in order. Nevertheless, the money had been spent; as a result, the federal authorities had had to allocate additional funds for road maintenance in the Orel Region. Mr Stroyev tried to get credit for that funding, but it was not United Russia’s money that had been used, as they claimed, but taxpayers’money. In the opinion of the author, by trying to present the whole situation as his personal achievement Mr Stroyev was making a fool of President Putin and of the population of the Orel Region. The article had a long post-scriptum. It cited the European Court’s findings in the case of Chemodurov v. Russia (no. 72683/01, judgment of 31 July 2007). That case concerned a defamation claim lodged by a governor of another Russian region against a journalist of a local newspaper. The case ended with a finding of a violation of Article 10 of the Convention by the Court. The author alluded to similarities between her criticism of Mr Stroyev’s policies and the situation in the Chemodurov case. 10. The second article was entitled ‘Stroyev sues people: people sue Stroyev’. It also concerned several topics. It opened with the statement that the electorate of Orel Region did not trust the authorities and at the 2006 and 2007 elections preferred to support the Communist Party. Next, it touched upon the story of Ms Ch., a former forest inspector who was dismissed from her job as a result of a reorganisation of the forestry authority. Forty-two other workers of the forest authority also lost their jobs. The article alleged that the reform of the forest authorities was initiated by Governor Stroyev in breach of federal legislation. It suggested that the reform was driven by the need to facilitate industrial tree-cutting. Ms Ch. sued the regional authorities, and at the relevant time the proceedings were pending. However, in the opinion of the journalist, there was little hope for impartiality on the part of the regional courts. The article then turned to the case of Ms G., who had made statements critical of the governor during a public rally and had been prosecuted for slander. The article then analysed recent public statements of the governor, who had criticised the policy lines of former President Yeltsin, whereas he himself during that period had been Chairman of the Federation Council, and therefore the second most important statesman in the country. According to the journalist, the proceedings in the case of Mr G. were adjourned, probably because Governor Stroyev wanted to avoid a scandal before the date of elections. The article closed with the suggestion that President Putin should not have associated himself such controversial figures as Governor Stroyev. 11. On 17 November 2007 the Working Group on Informational Disputes of the regional Electoral Committee examined both articles. The Working Group concluded that the articles contained elements of electoral campaigning (агитация). The Working Group concluded as follows: The publications contained “negative, purposeful, systematically published information about a member of the High Political Council of the United Russia political party ... Mr E. Stroyev. The above-mentioned publications have created a negative attitude on the part of the voters towards ... United Russia. Although the text of the articles does not call for people to vote for or against United Russia, all the electorate understand that this is in fact counter-campaigning [against Mr Stroyev]”. The publications “did not correspond to the current information policy of the organisations editing mass media”, which (the policy) was “aimed at informing the voters about the development of the electoral campaign ... [and] about the political parties participating in it”. Those articles, in the opinion of the Electoral Committee, fell “outside the information space created by the political parties during the ongoing electoral campaign”. The publication of those articles was not paid for from the official campaign fund of any party participating in the campaign, contrary to section 52 § 6 of the Electoral Rights Act of 2002. 12. Consequently, in the opinion of the Electoral Committee, publication of those articles amounted to a breach of electoral law punishable by a fine in accordance with Article 5.5 of the Federal Code of Administrative Offences (CAO). 13. The official of the Electoral Committee compiled an administrative offence record against the applicant organisation, referring to the legislative provisions defining “campaigning” (see paragraph 40 below): “[The applicant organisation] has committed an administrative offence: publications on 7 and 14 November 2007 containing elements of election campaigning as defined in sections 10 and 55 § 1(6) of the State Duma Deputies Elections Act” ... Liability for this offence is prescribed under: Article 5.5 § 1 of the CAO.” 14. The case was then submitted to a justice of the peace. On 29 November 2007 the justice of the peace examined the case. At the hearing the editor-in-chief of the newspaper explained that both articles were informational in essence and were not a part of the election campaign. They reflected the author’s opinion of Governor Stroyev. Consequently, there was no need for those articles to be paid for from any candidate’s campaign fund. 15. The judge held that, according to the State Duma Deputies Elections Act of 2005, taken in conjunction with the Electoral Rights Act, “election campaigning” meant publications where information about one of the candidates prevailed and was combined with negative comment about him or her. Having studied the impugned articles the judge agreed with the Electoral Committee that they primarily concerned candidate Stroyev, and secondly were negative. The judge concluded that those articles were in substance election “campaigning”. Such material should either have been paid for from the campaign fund of one of the candidates or have been published free of charge; in any event, the newspaper had been required to indicate who had sponsored the publication. No such mention had been made in the articles. Consequently, the publication of both articles amounted to a breach of the electoral law. The applicant organisation was therefore found guilty of the administrative offence described in Article 5.5 § 1 of the Code of Administrative Offences of 2001 (hereinafter “the CAO”). The justice of the peace ordered the applicant organisation to pay a fine of 35,000 roubles (RUB, equivalent to 1,000 euros (EUR) at the time). 16. The applicant organisation appealed to the Zheleznodorozhny District Court of Orel. On 27 December 2007 it heard the applicant organisation’s representatives and rejected the appeal. The relevant extract from the judgment reads as follows: “Having regard to the fact that the publication of the above articles took place during an election campaign period, the judge considers that the above-mentioned articles contained elements of election campaigning, and therefore could be described as campaign literature. This conclusion is supported by the words of the representatives of the newspaper ... who acknowledged that the articles contained criticism of Governor Stroyev ...” 17. The appeal decision entered into legal force on the same date. 18. On unspecified dates the applicant organisation received a copy of this decision and lodged a supervisory-review application with the President of the Orel Regional Court. The scope of that application remains unclear. 19. Without holding a hearing, on 29 January 2008 the acting president of the court issued a decision dismissing the application. The reasoning of the decision of the acting president was identical to that of the lower courts. On an unspecified date the applicant organisation received a copy of the acting president’s decision. 20. The applicant organisation then lodged a supervisory-review application with the President of the Supreme Court of Russia. The scope of this application remains unclear. On 19 June 2008 the Vice-President dismissed it. On an unspecified date the applicant organisation received a copy of this decision. 21. On an unspecified date the applicant organisation introduced an individual application before the Constitutional Court of Russia, arguing that the impugned provisions of the Electoral Rights Act and the State Duma Deputies Election Act ran counter to freedom of the press. The Acts de facto regarded any critical material published during a pre-election period as “campaigning”, and imposed additional requirements on such publications. 22. By a letter of 23 October 2008 the Registry of the Constitutional Court informed the applicant organisation that its application was not allowed because, in substance, it was merely challenging the factual and legal findings made by the courts in the administrative offence case. 23. On an unspecified date the applicant organisation resubmitted its application to the Constitutional Court. On 25 December 2008 a panel of judges of the Constitutional Court issued a decision (определение) refusing examination of the application. It held as follows: “In its ruling of 30 October 2003 the Constitutional Court made the following statement of principle concerning a distinction between information for voters and pre-election campaigning. To protect the right to free elections, freedom of expression on the part of the mass media may be restricted, provided that the balance of constitutional values has been respected ... [The Electoral Rights Act] distinguishes between information for voters appearing in the mass media and pre-election campaigning by them. Both information and campaigning can influence voters to make certain choices, thus the obvious and only criterion to distinguish between them would be the existence of a particular aim, namely to incline voters to support or oppose a certain candidate ... Without such an aim in mind there would be no dividing line between information and campaigning, to the effect that all information would amount to campaigning. This would go against the constitutional guarantees of freedom of information and freedom of expression ... It is incumbent on the courts and other authorities to establish that there is a campaigning aim in each case ... Thus, in view of the above statement of principle, the impugned legislative provisions cannot be considered to have violated the applicant organisation’s rights or freedoms ... Establishment of the specific circumstances (whether or not the information provided by the applicant organisation concerned the electoral campaign rather than the reporting on the candidate’s professional activity as a governor) are beyond of the Constitutional Court’s competence ...” | 1 |
test | 001-165758 | ENG | DEU | CHAMBER | 2,016 | CASE OF WENNER v. GERMANY | 2 | Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Substantive aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits | 5. The applicant was born in 1955. At the time of lodging his application, he was detained in Kaisheim Prison. He was released subsequently. 6. The applicant has been continuously addicted to heroin since 1973, when he was aged 17. He has also been suffering from hepatitis C since 1975 and has been HIV-positive since 1988. He has been considered 100% disabled and has been receiving an employment disability pension since 2001. He has tried to overcome his addiction to heroin with various types of treatment (including five courses of in-house drug rehabilitation therapy), all of which failed. From 1991 to 2008 the applicant’s heroin addiction was treated with medically prescribed and supervised drug substitution therapy. Since 2005, the applicant had reduced the dosage of his drug substitution medication (Polamidon) and consumed heroin in addition to that medication. 7. In 2008 the applicant was arrested on suspicion of drug trafficking and taken in detention on remand in Kaisheim Prison, where his drug substitution treatment was interrupted against his will. On 3 June 2009 the Augsburg Regional Court convicted the applicant of drug trafficking, sentenced him to three years and six months’ imprisonment and, having regard to a previous conviction, to another two years and six months’ imprisonment. It further ordered the applicant’s placement in a drug detoxification facility, to be executed after a period of six months’ detention in prison. The applicant was still not provided with substitution treatment for his heroin addiction. On 10 December 2009 he was transferred to a drug rehabilitation centre in Günzburg, Bavaria, where he underwent abstinencebased treatment for his addiction, without additional substitution treatment. 8. On 19 April 2010 the Memmingen Regional Court declared the applicant’s detention in the detoxification facility terminated and ordered his retransfer to prison. In a decision dated 25 June 2010 the Munich Court of Appeal dismissed the applicant’s appeal. Having regard, in particular, to the views expressed by the applicant’s treating doctors, the court considered that it could no longer be expected with sufficient probability that the applicant could be cured from his drug addiction or could be prevented for a considerable time from relapsing into drug abuse. He had secretly consumed methadone at the clinic and lacked motivation to lead a drug-free life. 9. The applicant was transferred back to Kaisheim Prison on 30 April 2010. The prison doctors gave him various painkillers for chronic pain resulting from his polyneuropathy, on a daily basis. During his detention, the pain in his feet, neck and spine became such that, at least during certain periods, he spent most of his time in bed. 10. The applicant was examined by an external doctor for internal medicine, H., on the prison authorities’ request in October 2010. H. did not consider any changes in the treatment of the applicant’s HIV and hepatitis C infections necessary. Having regard to the applicant’s chronic pain linked to his long-term drug consumption and polyneuropathy, he suggested that the prison medical service reconsider the possibility of drug substitution treatment. He subsequently confirmed that the applicant should be examined by a doctor specialised in drug addiction therapy to that end. 11. The applicant also obtained, on his request, an opinion drawn up by an external doctor specialised in drug addiction treatment (B.) dated 27 July 2011, on the basis of the written findings of doctor H. and the Kaisheim Prison doctor’s and authorities’ findings and statements, but without having been able to examine the applicant in person. B. considered that from a medical point of view, drug substitution treatment had to be provided to the applicant. He explained that in accordance with the Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts (Richtlinien der Bundesärztekammer zur Durchführung der substitutionsgestützten Behandlung Opiatabhängiger) of 19 February 2010 (see paragraph 30 below), drug substitution therapy was internationally recognised as being the best possible therapy for long-standing opioid addicts. Detoxification caused the person concerned serious physical strain and extreme mental stress and should only be attempted in cases of a very short opioid dependence. Drug substitution therapy prevented a deterioration of the patient’s state of health and a high risk to life, which arose particularly after forced abstinence in detention. It further prevented the spreading of infectious diseases such as HIV and hepatitis C. It had to be clarified whether, in the applicant’s case, further treatment for the hepatitis C from which he suffered was necessary. 12. By submissions dated 6 June 2011, which he supplemented subsequently, the applicant made a request to the Kaisheim prison authorities for treatment with Diamorphin, Polamidon or another heroin substitute for his heroin addiction. Alternatively, he requested that the question of whether such substitution treatment was necessary be examined by a drug addiction specialist. 13. The applicant claimed that drug substitution treatment was the only adequate treatment for his medical condition. Under the relevant Guidelines of the Federal Medical Association for the Substitution Treatment of Opiate Addicts, drug substitution treatment, which he had received prior to his detention, was the required standard treatment for his condition and had to be continued during his detention. 14. The applicant claimed that, as confirmed by doctor H., the serious chronic neurological pain from which he was suffering could be considerably alleviated by drug substitution treatment, as had been the case during his previous substitution treatment. Having been addicted to heroin for almost forty years, he stood hardly any chance of leading a totally drugfree life on release from prison. His rehabilitation could therefore better be furthered by providing him drug substitution treatment. While undergoing such treatment previously, he had been able to lead a relatively normal life and to complete training as a software engineer. 15. Furthermore, referring to doctor B.’s opinion, the applicant claimed that he was in need of Interferon therapy in order to treat his hepatitis C infection. In view of his poor physical and mental health, it was impossible to carry out such treatment without simultaneous drug substitution therapy. Substitution also helped to protect other prisoners from infection when using the same needles as he did for the consumption of drugs and diminished the trafficking and uncontrolled consumption of illegal drugs in prison. He also considered that the prison doctors did not have specialist knowledge in drug addiction treatment and asked to be examined by an external specialist. 16. After the prison authorities’ first decision dismissing the applicant’s application was quashed by the Augsburg Regional Court on 4 October 2011 for lack of sufficient reasoning, the prison authorities, on 16 January 2012, again dismissed the applicant’s request. 17. The prison authorities argued that substitution treatment was neither necessary from a medical point of view nor a suitable measure for the applicant’s rehabilitation. With regard to the medical necessity of drug substitution therapy, the prison authorities, relying on prison doctor S.’s statement, considered that drug substitution therapy was not a necessary treatment for the purposes of section 60 of the Bavarian Execution of Sentences Act (see paragraph 27 below). They found that the applicant, who was severely addicted to drugs, had not received drug substitution treatment prior to his current detention in Kaisheim Prison. He had been placed in a drug rehabilitation centre for five months before his transfer to Kaisheim Prison, where he had been treated by medical experts with considerable knowledge of drug addiction treatment. The applicant had neither been given substitution treatment in the clinic, nor had the doctors recommended substitution treatment in prison. After three years in detention, he no longer suffered from physical withdrawal symptoms. Moreover, his condition with regard to his HIV and hepatitis C infections was stable and did not require any therapy for which substitution treatment was a necessary precondition. As suggested by the prison doctor, the applicant should use the opportunity to wean himself off opioids, such as heroin and its substitutes, while in prison, as it was very difficult to obtain drugs there. 18. With regard to the applicant’s social rehabilitation and treatment (sections 2 and 3 of the Bavarian Execution of Sentences Act, see paragraph 27 below), the prison authorities added that the main reason for which addicts underwent drug substitution therapy was to prevent them from becoming impoverished and from becoming involved in drug-related criminality. In prison, these risks were not present. Furthermore, the applicant had already shown that substitution therapy while he was at liberty had not prevented him from consuming other drugs or committing crimes, which had been caused by his antisocial nature. Moreover, the applicant had also consumed drugs while in detention. Therefore, providing him substitution treatment could lead to a risk to life and limb. 19. On 26 January 2012 the applicant, relying on the reasons he had submitted to the prison authorities, appealed against the decision of the prison authorities to the Augsburg Regional Court. He further submitted that the authorities of Kaisheim Prison, where no substitution treatment had ever been provided, had omitted to examine the medical necessity of drug substitution therapy under the relevant criteria laid down, in particular, in the Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts, which were clearly met in his case. He further argued that under the applicable administrative rules for substitution treatment in prison in the Land of Baden-Württemberg, he would be provided with drug substitution therapy, which is carried out in the prisons of the majority of the German Länder. 20. On 28 March 2012 the Augsburg Regional Court, endorsing the reasons given by the prison authorities, dismissed the applicant’s appeal. It added that it was not necessary to obtain the opinion of a drug addiction expert. The prison doctors of Kaisheim Prison had sufficient training to decide on the medical necessity of drug substitution therapy, irrespective of the fact that drug substitution therapies might never have been used in that prison. The administrative rules for substitution treatment in prison applicable in the Land of Baden-Württemberg were irrelevant, given that Kaisheim Prison was situated in the Land of Bavaria. 21. On 4 May 2012 the applicant lodged an appeal on points of law with the Munich Court of Appeal. He submitted that the Regional Court’s failure to investigate sufficiently whether drug substitution treatment was necessary, under the applicable Federal Medical Association’s Guidelines and with the help of an independent doctor specialised in drug addiction treatment, had breached section 60 of the Bavarian Execution of Sentences Act and Article 3 of the Convention. Refusing him the alleviation of his intense neurological pain with an existing and medically necessary treatment constituted inhuman treatment. 22. On 9 August 2012 the Court of Appeal dismissed the appeal as illfounded. In the court’s view, the applicant had failed to show why drug substitution therapy was the one specific medical treatment he needed. He had further failed to prove that the prison doctors of Kaisheim Prison were not qualified to decide about the medical necessity of heroin substitution. The applicant’s objection against the Court of Appeal’s decision was rejected. 23. On 10 September 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that his right to respect for his physical integrity under the Basic Law had been breached because he was denied drug substitution therapy, the only suitable therapy to treat his chronic pain, which would make Interferon therapy possible and allow him to reduce his craving for heroin and lead a “normal” everyday prison life without isolation. He further complained that his right to be heard under the Basic Law had been violated as the domestic courts had not taken into consideration the medical opinions he had submitted to show that a substitution treatment was necessary and had failed to consult an independent specialised expert. 24. On 10 April 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 2263/12). 25. On 17 November 2014 the Kaisheim prison authorities rejected the applicant’s fresh request to be provided with substitution treatment in preparation for his release. The applicant’s counsel was advised to ensure that the applicant was taken to a drug rehabilitation clinic immediately on his release in order to prevent him from taking an overdose of heroine as soon as he was at liberty. 26. On 3 December 2014 the applicant was released. When examined by a doctor on 5 December 2014 he tested positive for methadone and cocaine. The doctor confirmed that the applicant would receive drug substitution treatment from 8 December 2014 onwards. | 1 |
test | 001-167114 | ENG | HRV | CHAMBER | 2,016 | CASE OF ZUBAC v. CROATIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković | 6. The applicant was born in 1959 and lives in Bijela (the Republic of Montenegro). 7. On 29 September 1992, the applicant’s father-in-law, Vu.Z., represented by his wife K.Z., concluded a contract for the exchange of his house in Dubrovnik (the Republic of Croatia) for one owned by F.O. in Trebinje (Republika Srpska, Bosnia and Herzegovina). 8. In 2001 Vu.Z. brought a civil action in the Trebinje Municipal Court (Osnovni sud u Trebinju) against F.O.’s heirs, seeking permission to register his ownership (clausula intabulandi) of the house in Trebinje. 9. On 20 April 2001 the Trebinje Municipal Court ordered F.O.’s heirs to issue a clausula intabulandi to Vu.Z and the defendants obeyed that order. 10. Vu.Z. died on an unknown date between 2001 and 2002. 11. On 14 August 2002 M.Z., Vu.Z.’s son and the applicant’s husband, brought a civil action in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku), seeking to have the contract for the exchange of the houses declared null and void. He claimed that the contract had been signed under duress because of circumstances arising from the war in Croatia. He also claimed that his father’s signature on the power of attorney used by his mother, Vu.Z.’s wife, to sign the impugned contract on the latter’s behalf, had been forged. In his action, M.Z. indicated the value of the subject matter of the dispute (vrijednost predmeta spora) at 10,000 Croatian Kunas (HRK) (approximately 1,300 euros (EUR) at the time). Later on, at a hearing on 6 April 2005, he indicated the value of the subject matter of the dispute at HRK 105,000 (approximately EUR 14,160 at the time). The defendants objected. 12. On 25 April 2005 the Dubrovnik Municipal Court ordered M.Z. to pay court fees of HRK 1,400 (approximately EUR 180 at the time) for bringing the civil action. It assessed the fees according to the value of the dispute being at HRK 105,000. 13. By a judgment of 27 September 2005 the Dubrovnik Municipal Court dismissed the claim and ordered the claimant to bear all the litigation costs and the expenses of the opposing parties, namely HRK 25,931.10 (approximately EUR 3,480 at the time). It assessed the costs of the proceedings according to the value of the subject matter of the dispute indicated at the hearing on 6 April 2005, namely HRK 105,000. The relevant part of the judgment reads as follows: “... the costs of the proceedings were awarded to the defendants [and assessed] according to ... the value of the dispute indicated by the claimant (HRK 105,000 (page 58 [of the case-file]) that the [first-instance] court accepted.” 14. On 12 December 2005 the first-instance court ordered the claimant to pay court fees of HRK 1,400 for the judgment. It also assessed them according to a value of HRK 105,000 for the dispute. 15. By a judgment of 1 October 2009 the Dubrovnik County Court (Županijski sud u Dubrovniku) dismissed an appeal by the claimant and upheld the first-instance judgment. The relevant part of that judgment reads as follows: “... the decision on the costs of the proceedings is based on the relevant law and adequate reasons are provided.” 16. On 24 May 2010 M.Z. lodged an appeal on points of law (revizija) with the Supreme Court. 17. On 17 October 2010 M.Z. died. The proceedings were taken over by his wife Vesna Zubac, the applicant, as his heir. 18. By a decision of 30 March 2011 the Supreme Court declared the appeal on points of law inadmissible ratione valoris, finding that the value of the subject matter of the dispute was below the statutory threshold of HRK 100,000. It held that the applicable value of the subject matter of the dispute was the one indicated in the claimant’s civil action. The relevant part of that decision reads as follows: “With regard to section 40(3) of the Civil Procedure Act if, in a situation referred to in subsection 2, it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low, so that an issue arises over jurisdiction over the subject matter, the composition of the court, the type of proceedings, or the right to lodge an appeal on points of law, the court shall quickly and in an appropriate manner verify the accuracy of the value specified, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits. It follows that when an action does not concern a sum of money the claimant is obliged to indicate the relevant value of the subject matter of the dispute in the civil action, after which the claimant is not allowed to change the [indicated] value of the dispute. Only a court may set the value of the subject matter of the dispute, ex officio or if an objection is raised by the defendant, if it establishes that the value indicated in the civil action is too high or too low, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits. In the present case the value of the subject matter of the dispute indicated in the statement of claim is 10,000 Croatian kunas. Later on, at the hearing of 6 April 2005, the claimant’s representative indicated the value of the subject matter of the dispute at 105,000 Croatian kunas ... . However, the claimant did not amend the claim at the same time. [Therefore] the first-instance court did not adopt a decision on a new value for the dispute because the procedural requirements under section 40(3) of the CPA [Civil Procedure Act] were not met. It follows that the relevant value of the subject matter of the dispute is the one indicated by the claimant in the civil action, namely 10,000 Croatian kunas, because the claimant was not allowed to change the indicated value if he did not amend his claim at the same time.” 19. By a decision of 10 November 2011 the Constitutional Court declared a constitutional complaint by the applicant inadmissible on the grounds that the case raised no constitutional issues. On 30 November 2011 it served its decision on the applicant’s representative. | 1 |
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