partition
stringclasses 3
values | itemid
stringlengths 8
10
| languageisocode
stringclasses 1
value | respondent
stringlengths 3
135
| branch
stringclasses 4
values | date
int64 1.96k
2.02k
| docname
stringlengths 11
228
| importance
int64 1
4
| conclusion
stringlengths 12
5.89k
| judges
stringlengths 8
416
⌀ | text
stringlengths 64
316k
| binary_judgement
int64 0
1
|
|---|---|---|---|---|---|---|---|---|---|---|---|
test | 001-148067 | ENG | LVA | CHAMBER | 2,014 | CASE OF EMARS v. LATVIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 21 May 2004 at 08.15 two household workers (“M.R.” and “I.B”) discovered the body of the applicant’s daughter (“S.J.”) at her home in Ventspils. She had a rope around her neck, the other end of which was thrown over the top of a door and tied to the door handle on the other side. 6. At 08.20 M.R. and I.B. reported the incident to the Ventspils City and District Police Department of the State Police (“the Ventspils State Police”). Three police officers from the Ventspils State Police were dispatched to S.J.’s home. S.J.’s husband (“A.J.”), who worked as a policeman-driver for the Ventspils State Police, arrived separately. 7. The Government have provided details of the investigation which followed. Their account has not been disputed by the applicant. 8. From 09.40 to 10.35 officers G.A. and A.G. from the Ventspils State Police examined S.J.’s home. They prepared the procedural record, photographed the scene and seized material evidence. Later that same day S.J.’s body was transported to the Ventspils City Morgue and A.G. requested an autopsy and forensic medical examination of the body. He also submitted an internal report to the Head of the Ventspils State Police which stated that he and G.A. had arrived at the scene, established that S.J. was dead, arranged for the transportation of the body, examined the scene, and took statements. In the report he noted that the persons transporting S.J.’s body to the morgue had removed the rope from around her neck. 9. In a letter dated 23 May 2005 a Prosecutor from the General Prosecutor’s Office admitted to the applicant that the examination of the scene by A.G. had not been done “qualitatively” or in compliance with the requirements of the Criminal Procedure Law. He had been subjected to disciplinary action and prosecuted under Article 319(1) of the Criminal Law (Failure of a State Official to Perform His Duties) and under Article 327(19) (Forgery of a Document by a State Official). The second prosecution would appear to relate to the forgery of a Doctor’s signature on a document purporting to set out an expert’s conclusion. A.G. was later released from criminal liability. 10. In the same letter the Prosecutor from the General Prosecutor’s Office informed the applicant that another officer from the Ventspils State Police (“A.M.”) had been subjected to disciplinary action for violating the Criminal Procedure Law when verifying the fact of S.J.’s death. It is not clear whether or not the disciplinary action related to the examination of the scene on 21 May 2004. 11. On 24 May 2004 the police took statements from the applicant and S.J.’s sister (“B.L.”), both of whom expressed the opinion that S.J. had no reason to commit suicide. 12. On 25 May 2004 a forensic expert, having examined S.J.’s body, concluded that she had died on 21 May 2004 and attributed the cause of death to mechanical asphyxiation. The report stated that there was no evident sign of violence, aside from the strangulation, although it noted that S.J. had bruises on her shoulder, hands and legs and three scratches on her right palm which could have been acquired up to three days prior to her death. 13. The following day the police obtained statements from a neighbour (“M.N.”) and two of S.J.’s colleagues. M.N. recalled that between 22.00 and 22.15 on 20 May 2004 she had observed a red vehicle similar to the one driven by A.J. parked in the courtyard of the building where S.J. and A.J. lived. Another neighbour (“Ma.N.”) subsequently recalled seeing such a vehicle in the courtyard from 22.00 to 22.30. 14. S.J.’s colleagues confirmed that she had finished her shift in the shop she worked in at 22.00 and headed to an office where she had a second job as a cleaner. Another witness later confirmed that she had arrived at the office at 22.15 and left at 22.45 22.50. 15. The Government submitted that on 27 May 2004 the Kurzeme Regional Division of the Organised Crime Combating Department (“the OCCD”) requested a list of incoming and outgoing calls to S.J.’s mobile phone from her operator. 16. On 30 May 2004 the son of S.J. and A.J. (“Av.J.”) made a statement. He said that A.J. had picked him up at home at 18.00 on 20 May 2004. He had remained with his father until 23.00, when his father returned to work and he went to the home of his sister (“D.J.”). A colleague of A.J. later reported going with him to the cafeteria in the police station at 23.00 and the chief officer on duty that night confirmed that A.J. had remained with the squad until his shift ended at 07.00 on 21 May 2004. He also told the investigators that after midnight the police station was locked and the main gate closed, with the consequence that no person – or vehicle – could leave the premises without his permission. 17. On 1 June 2004 Officer A.M. performed a further examination of S.J.’s home. He examined marks and traces left by the rope on the door and seized several samples for forensic traceology examination. 18. On 8 July 2004 a household worker gave a statement to the police confirming that on 20 May 2004 A.J. had returned home at 18.00 to collect Av.J. On 20 July 2004 D.J. confirmed that A.J. and Av.J. had arrived at her home at 23.00 that night. 19. On 21 July 2004 the State Forensic Expertise Centre reported that the groove marks on the upper fragment of the door had been chafed into the wooden surface by the rope attached to S.J.’s neck. Those marks could only have been made by pulling the weight of S.J.’s body towards the door handle, to which the rope was subsequently tied. 20. On 23 July 2004 the OCCD initiated criminal proceedings to investigate the aggravated murder (murder with mercenary intent) of S.J. From this point onwards, Inspector V.L. of the OCCD was responsible for the investigation under the supervision of the General Prosecutor’s Office. A.L. was the Prosecutor in charge and he reported to A.B., who was the supervising Prosecutor. 21. On 23 July 2004 A.J. was interrogated as a suspect and he was informed that he could not change his registered place of domicile. Av.J., D.J. and B.L. were questioned as witnesses. 22. A couple of days later, M.N. and Ma.N. were again interviewed about the red vehicle parked in the courtyard of S.J.’s home. Both indicated that they had believed the vehicle to be the one driven by A.J. 23. Throughout the following months witnesses were interviewed, including A.J. (who was questioned repeatedly), his relatives and acquaintances, S.J.’s relatives (including the applicant), the couple’s neighbours, a number of police officers, S.J.’s employer and some of her colleagues, her household workers and her dentist. The General Prosecutor’s Office also instructed the OCCD to order further forensic tests, although records indicate that many were in fact ordered by the Ventspils State Police. 24. Attempts were made to establish the exact time of death but on 11 August 2004 the forensic expert indicated that “considering that the forensic medical examination of S.J.’s body had been performed four days after it was found and that livor mortis appears within the first hour of death, a more precise time of death could not be established”. 25. A.J.’s uniform and the seat covers of his service car were seized on 9 August 2004 and DNA samples were taken from him. On 9 September 2004 the expert reported that there were several different DNA samples on the rope used to hang S.J. but none belonged to A.J. The expert was unable to establish the gender identification of the samples. On 16 September 2004 an expert concluded that some fibres found on S.J.’s coat possibly came from A.J.’s car seat but the results were inconclusive. 26. Further tests were also carried out on S.J.’s body, but no injuries were found which would indicate a struggle or self-defence. 27. Furthermore, S.J.’s bank records were requested, as were details of all red vehicles matching the description of the one seen at the scene of the crime. S.J.’s family members were also questioned repeatedly about whether or not she had kept a personal diary. On 23 March 2005 the diary appears to have been handed over to the police and attached to the criminal file. 28. On 1 December 2006 a further forensic traceology report suggested that there was a “high probability” that if S.J. had committed suicide the grooves on the top of the door would not have appeared as they did. 29. On 21 March 2007 A.J. was again declared a suspect. Further DNA tests were performed on the rope and experiments were carried out to determine the driving time from Ventspils Police Station to S.J.’s home. The results of the latter test appeared to confirm A.J.’s alibi and on 13 November 2008 the decision to once again declare him a suspect was quashed. 30. On 11 January 2011 a new OCCD investigator (“A.Jo.) assumed jurisdiction over the case file. 31. On 20 August 2007 the OCCD acknowledged D.J. (the applicant’s granddaughter) as a victim in the criminal proceedings. 32. On 26 May 2004 the applicant wrote to the Head of the OCCD alleging that S.J. had been murdered. The OCCD informed the applicant on 2 July 2004 that the circumstances of S.J.’s death were still being investigated. 33. The applicant subsequently submitted further complaints to the Prosecutor’s Office concerning the conduct of the investigation. In the course of these complaints, he implied that A.J. was directly or indirectly implicated in S.J.’s murder and that his colleagues on the police force were deliberately obstructing the investigation. 34. On 22 December 2004 A.Mi., a senior Prosecutor of the Prosecutor’s Office attached to the Kurzeme Regional Court, informed the applicant that an in-depth investigation was being carried out. It was being conducted in an impartial manner and there was no evidence of any deliberate obstruction by the police. A.Mi. noted that the investigation was complicated and was supervised by another prosecutor from the same office (“A.L.”). 35. On 23 May 2005 a Prosecutor from the General Prosecutor’s Office informed the applicant that the investigation was still ongoing and that the evidence which had been gathered was not sufficient to bring charges against any specific persons. The Prosecutor admitted that A.G. had not carried out the initial examination of the scene of S.J.’s death “qualitatively”, that both A.G. and A.M. had violated the requirements of the laws on criminal procedure and that the two officers had received disciplinary penalties. In addition, criminal proceedings had been initiated against A.G. for criminal inaction of a State official (section 319 of the Criminal Law) and for the forgery of official documents (section 327 of the Criminal Law). However, on 14 March 2005 the Prosecutor’s Office attached to the Kurzeme Regional Court had decided to release A.G. from criminal liability pursuant to Article 54 of the Code of Criminal Procedure. 36. On 17 July 2007 the applicant wrote to A.L., the supervising Prosecutor, and asked to see certain expert reports and other specific information concerning the investigation into S.J.’s death. More particularly, he asked for additional information concerning the violations committed by the police officers A.M. and A.G. He also enquired when the case would be sent to a court. 37. On 20 August 2007 the Prosecutor replied to the applicant. He informed him that the pre-trial investigation was still ongoing and a forensic biological analysis of DNA was being carried out. Further investigative steps would be planned after receiving the results of that analysis and it was therefore impossible to predict the date of the completion of the pre-trial investigation. The applicant was further informed that under the Law of Criminal Procedure he had no right to read the case file or to receive copies thereof. The only persons who had such a right were the accused and the victims, but only after the completion of the criminal proceedings. With regard to the violations committed by the police officers, the applicant was advised to contact the Ventspils State Police. 38. On 10 September 2007 the applicant submitted a complaint to the Prosecutor General concerning the Prosecutors’ responses of, inter alia, 22 December 2004, 23 May 2005 and 20 August 2007. He principally complained that the investigation was being deliberately delayed in order to protect S.J.’s murderer(s). 39. The applicant’s complaint was forwarded to the Prosecutor’s Office attached to the Kurzeme Regional Court. On 1 October 2007 he received a response from A.Mi. informing him that the investigation and the gathering of evidence were continuing “in order to establish important facts”. Unspecified expert reports had apparently been ordered and their results were expected no earlier than December. Finally, the applicant was informed that his “allegation that the investigator and the supervising Prosecutor were not sufficiently active and were uninterested in establishing the truth were unfounded”. 40. On 26 October 2007 the applicant submitted a further complaint to the Prosecutor General. He criticised the Office of the General Prosecutor’s decision to forward his complaint to the Prosecutor’s Office attached to the Kurzeme Regional Court. He also denounced the response of 1 October 2007 as “passive and unfounded” and considered that the fact that it did not address the substance of his complaints demonstrated that A.Mi. was not interested in establishing the truth about S.J.’s murder. 41. On 13 November 2007 the Prosecutor General gave a final response to the applicant’s complaint. In the relevant parts of the response the applicant was informed: “... [the senior prosecutor A.M.] in his response of 1 October [2007] informed you that the investigation of the criminal case ... was ongoing, that expert reports had been ordered, and that after receiving expert reports further investigative steps would be planned. While criminal proceedings are pending, the materials in the criminal case file are an investigative secret (section 375 of the Law of Criminal Procedure), which is why it is impossible to give you more specific information concerning the investigative steps that have been taken and will be taken. It might be for that reason that you have formed an incorrect opinion that the investigation is being intentionally delayed and not conducted with the aim of establishing the culprit; however, such an opinion does not find support in the steps actually taken in the criminal proceedings. In the course of the pre-trial investigation of the criminal case ... a sufficient amount of investigative steps were carried out: more than 15 expert reports were ordered and received and the need to order [additional] expert reports and the planning of further investigative steps was determined by the [findings of the] expert reports already received. In addition, the preparation of expert reports took significant time; more than 40 witnesses were questioned and other investigative steps carried out. Unfortunately the pre-trial investigation to this date has not allowed us to establish the circumstances [of S.J.’s death] or the culprit.” | 1 |
test | 001-155194 | ENG | RUS | CHAMBER | 2,015 | CASE OF FANZIYEVA v. RUSSIA | 3 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 6. The applicant was born in 1942 and lives in Nalchik. She is the mother of the late Ms Madina Eneyeva, who was born in 1972 and died in 2007. 7. On 26 May 2007 Ms Eneyeva was at a local market together with Mr A, her brother-in-law. One of the stall-holders, Ms G.Zh., suspected that Ms Eneyeva was planning to steal a skirt from her market stall. The two women started a fight and exchanged a few blows. The police arrived and arrested the applicant’s daughter on suspicion of theft. Ms Eneyeva and Mr A. were both put into a police vehicle. 8. The parties have presented different accounts of the subsequent events. 9. According to Mr A., after Ms Eneyeva had been put into the police vehicle, an unknown police officer with the rank of lieutenant approached the vehicle, kicked Ms Eneyeva fifteen times on her legs and then left. Once at the police station, Mr A. was released. According to the applicant, upon arrival at the police station, her daughter was taken to the interrogation room situated on the second floor (in Russian referred to as the “third floor”) of the police station and was beaten by the police officers until she fainted. While Ms Eneyeva was unconscious, unspecified police officers threw her out of the window. 10. In the Government’s submission, it was alleged that during the drive to the police station Ms Eneyeva had unsuccessfully tried to escape from the police vehicle. Upon arrival at the police station, she had been escorted to the office of Lieutenant A.Zh. She had refused to answer his questions and had asked for permission to use a lavatory. Since there were no female police officers in sight, A.Zh. escorted her to the lavatory on the second floor of the police station himself and waited for her in the corridor outside the locked door. Being unguarded, Ms Eneyeva jumped out of the window in an attempt to escape from police custody. 11. Ms Eneyeva was then taken to hospital by ambulance. She underwent urgent surgery. At 10.45 p.m. on 26 May 2007 Ms Eneyeva died of complex internal injuries to her head, body and extremities. 12. The applicant then sought an investigation into her daughter’s suspicious death and ill-treatment. According to the applicant, her daughter had no suicidal tendencies; she had three young children and a good home in recently obtained social housing. 13. On 26 May 2007 the prosecutor’s office of Nalchik (“the town prosecutor’s office”) were notified that Ms Eneyeva had jumped out of the window of the police station and then died. 14. On an unspecified date the town prosecutor’s office opened preinvestigative inquiry no. 663-07 into the circumstances of Ms Eneyeva’s death. 15. On 28 May 2007 a forensic expert issued a post-mortem report, according to which ‒ apart from various injuries ‒ Ms Eneyeva had bruises and scratches on her legs, those injuries being unrelated to the fall. 16. On 4 June 2007 the deputy town prosecutor received and examined the applicant’s complaint, in which she alleged that her daughter had been thrown out of the window by the police officers. He stated that the investigator in charge of pre-investigative inquiry no. 663-07 had not yet carried out all requisite investigative measures, in particular, that he had not questioned a number of persons: the police officers who had arrived at the market once Ms G.Zh. had reported the theft, those who had arrested Ms Eneyeva, the ambulance crew members and Mr A. Nonetheless, the deputy town prosecutor concluded that “there is nothing to suggest that Ms Eneyeva’s death on 26 May 2007 in Nalchik was a violent one, as suggested in the complaint; moreover, there is no proof that the police officers of Nalchik were implicated in her death ...” and decided to dismiss the applicant’s complaint. 17. After a pre-investigation inquiry, on 5 June 2007 an investigator from the Nalchik prosecutor’s office concluded that the applicant’s daughter “had made another attempt” to escape from the police station, and refused to institute criminal proceedings in relation to Ms Eneyeva’s death. 18. The above decision was later quashed by the Nalchik prosecutor who considered that it was established that the applicant had sustained injuries at the hands of an unspecified police officer. 19. On 17 June 2007 the investigator again refused to open a criminal investigation into the applicant’s daughter’s death. The decision was quashed by the deputy town prosecutor on 20 June 2007. 20. On 7 July 2007 the investigator from the Nalchik prosecutor’s office refused to institute a criminal case to investigate the circumstances of Ms Eneyeva’s death. 21. On 27 July 2007 the Kabardino-Balkariya prosecutor’s office quashed the decision of 7 July 2007 refusing to open an investigation into Ms Eneyeva’s death. However, no further investigation into the circumstances of the death appears to have taken place and no further decision regarding this appears to have been taken after 27 July 2007. On 11 August 2007, however, Lieutenant A.Zh. was subjected to disciplinary measures for failure to comply with the procedure concerning escorting detainees. 22. For reasons unknown, on 27 July 2007, while quashing the refusal to investigate the death of Ms Eneyeva, the Kabardino-Balkariya prosecutor’s office opened criminal proceedings in case no. 25/35-07 to investigate an alleged abuse of powers by an unidentified police officer who had hit Ms Eneyeva on her legs inside the police vehicle at the market on 26 May 2007. They referred to the medical expert report (see paragraph 15 above) according to which there had been bruises on Ms Eneyeva’s legs which had not been caused by the fall out of the window. The authorities relied on Article 286 of the Russian Criminal Code (“abuse of power by a public official”). The circumstances of Ms Eneyeva’s death lay outside the scope of the investigation in question. 23. On 13 September 2007 the applicant was granted victim status in case no. 25/35-07. 24. On 22 October 2007 a forensic expert carried out another examination of Ms Eneyeva’s body to establish the origin of the scratches and bruises on the legs and concluded that the injuries in question had been inflicted by blunt objects. 25. On 27 October 2007 the investigation into the abuse of power was stayed for failure to identify those responsible. On 19 November 2007 the investigation was resumed and eventually stayed again on 28 February 2008. 26. In view of the authorities’ failure to institute a criminal investigation into Ms Eneyeva’s death, the applicant brought court actions on 31 January 2008 and on 26 February 2008. Eventually, on 23 June 2008 the Nalchik Town Court held in favour of the applicant, finding that the investigator’s failure to investigate had been unlawful. 27. On 8 April 2009 the applicant again complained about the investigator’s lack of action. On 14 May 2009 the Nalchik Town Court granted the applicant’s claim and held that the investigator’s continued failure to comply with the judgment of 23 June 2008 was unlawful. 28. On 23 March 2010 the deputy prosecutor of Nalchik quashed the ruling of 28 February 2008 staying the investigation (see paragraph 25 above). 29. Accordingly, on 31 March 2010 the investigation was again resumed. 30. On 11 April 2010 Mr K., a police officer on duty on 26 May 2007, was questioned as a witness. No essential information was obtained as a result of the interview. 31. In April 2010 the investigators tried to find eye-witnesses who had seen Ms Eneyeva at the market on 26 May 2007, but in vain. Also in April 2010 the certificate of death of Mr A. was included in the case file. 32. On 15 April 2010 the investigators decided to carry out a forensic medical examination of the injuries found on Ms Eneyeva’s body by a group of experts on the basis of the documents in the case file. However, no information on the results of the examination had been made available by 29 January 2015. 33. On 25 April 2010 Mr Ch., a police officer on duty on 26 May 2007, was questioned as a witness. He did not provide any relevant information. 34. On 8 May 2010 two shop assistants were questioned as witnesses and submitted that they had not seen the police using any force on Ms Eneyeva. 35. On 8 May 2010 the investigation was suspended owing to failure to find those responsible. 36. On 28 August 2010 the investigation was resumed. 37. On 22 September 2010 the investigators questioned Ms B. as a witness. Ms B. was the wife of Mr O., a forensic expert who had examined Ms Eneyeva’s dead body in 2007. Ms B. stated that her husband had left for Moscow for a lengthy period of time. 38. On 30 September 2010 the investigation was again suspended. 39. On 21 January 2015 the investigation was resumed. An internal inquiry was instituted by the Investigative Committee of Russia regarding poor supervision of the investigation of case no. 25-35/07. The investigation appears to be still pending. 40. The applicant stated that after 23 March 2010 she had not received any update on the progress of the investigation from the domestic authorities. | 1 |
test | 001-173383 | ENG | RUS | COMMITTEE | 2,017 | CASE OF GEVAL AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Branko Lubarda;Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. | 1 |
test | 001-142073 | ENG | ROU | CHAMBER | 2,014 | CASE OF ENACHE v. ROMANIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1977 and is currently detained in Giurgiu Prison. 6. In a final judgment by the Dolj County Court, the applicant was sentenced to life imprisonment for murder. 7. The applicant was detained in Craiova Prison between 2 December 1997 and 26 June 2008. During that time he was transferred to other prisons or prison hospitals for short periods. On 26 June 2008 he was transferred to Poarta Albă Prison. He has been serving his sentence in Giurgiu Prison since 2 September 2010. 8. The material conditions of detention in Craiova Prison were described by the applicant as being inhuman and degrading. 9. As a result of the severity of his sentence, the applicant was classified as a dangerous prisoner in accordance with the prison regulations and was held in solitary confinement. He alleged that he had insufficient living space in his cell because it contained unnecessary beds. His requests for some of the beds to be removed were always refused by the prison administration. He also complained that he felt isolated, as he had been forbidden to share the cell with another person or to meet other detainees for the entire duration of his detention. This situation was aggravated by the complete lack of activities outside the cell. In this respect he contended that he had participated in educational activities only in 2002 and 2003. For the rest of the time he had spent in Craiova Prison, no activities had been proposed to him. 10. There was a severe lack of drinking water, and of hot and cold water in general. The insufficient provision of hot water, namely once a week for one hour for a high number of detainees in collective showers, made it impossible to maintain a proper standard of personal hygiene. 11. Heating was provided for only two hours in the morning and two in the evening, which was not enough to heat the cell. The applicant therefore suffered constantly from the cold during the winter. 12. The food was insufficient and of very poor quality. The applicant, who did not have the financial means to buy additional food, suffered from hunger for most of the time. 13. There was not enough light in the cell because the window was too narrow and artificial light was only provided in the evening. 14. The applicant was systematically handcuffed every time he was taken out of his cell, even when he was taken to the prison’s religious facilities. 15. The applicant alleged that those conditions had had a negative impact on his physical and psychological well-being. In this connection, it appears from his prison medical file that he was suffering from chronic depressive psychopathy and had attempted to commit suicide. He was also diagnosed with gastritis and duodenitis, both of which became chronic as from 2004. 16. The applicant was held alone in a cell measuring 9.03 sq. m, in which three rows of bunk beds were installed each measuring 1.90 m by 0.80 m. The cell also contained a table and two chairs. All the furniture was fixed on the floor and could not be moved. During his detention in Craiova Prison, the applicant shared the cell with other detainees for various periods of time. On one occasion, he even planned an escape with his cellmate, R.A. The applicant participated in two educational activities in the course of 2002 and one educational activity from January to April 2003. 17. There was a constant supply of cold drinking water, in accordance with the international conventions signed by Romania. Until 2001 inmates had had an opportunity to take a bath once a week in the collective bathing facilities. As from the second half of 2001, hot water was supplied daily, for a minimum of one hour. 18. In winter, heating was available between 1 November and 31 March, in accordance with a pre-established schedule, for an average of eight hours per day. 19. With respect to the quality and quantity of food served, the Government submitted that it was in accordance with the European standards and the internal prison regulations. 20. Concerning the alleged lack of light in the applicant’s cell, the Government submitted that the cell contained a window measuring 1.50 m high and 0.75 m wide, which afforded the necessary light during the day. In addition, artificial lighting was available if needed until 10 p.m., in accordance with the prison’s schedule for the provision of electricity. 21. Prisoners classified as dangerous, such as the applicant, were handcuffed whenever they were taken out of their cells and during transportation, in accordance with the prison regulations. The handcuffs were removed while they were attending educational or ethic/religious programmes and during visits. 22. The applicant was detained alone in a cell measuring 7 m by 1.50 m. A very small window was covered with metal bars and metallic netting. 23. The applicant could leave his cell for only three hours per day for a walk outside, but had no other activities. 24. The prison rubbish dump was outside the cell window and made the air smell unbearably fetid. 25. Whenever the applicant needed something, he had to tap on the door in order to draw the guard’s attention. For this he was disciplined, usually by members of the special intervention units wearing masks. 26. The applicant was detained in five different cells, all of which had the same specifications, namely a surface of 10.24 sq. m, two beds measuring 1.93 m by 0.83 m and one bed-side table. 27. The prison’s rubbish dump was, and still is, located around 100 m from the window of the applicant’s cell and the rubbish is collected at least once per month. The Government submitted that there were situations when a fetid smell was released in the air but measures to remedy the situation were always taken. No specific measures were given as examples in that respect. 28. As for the activities available to prisoners in Giurgiu Prison, the Government submitted a general overview of the internal regulations on that matter. 29. On 23 January 2007 and 14 May 2009 the Court sent two letters to the applicant at Craiova Prison. The second letter was returned to the Court by the postal services with the mention “recipient unknown at this address”. 30. On 5 August 2010 the Court invited the Government to submit information on whether the applicant was still detained and if so, in which prison he was currently being held. 31. On 16 September 2010 the Government submitted information confirming that the applicant was detained at that time in Poarta Albă Prison. 32. The Court sent two more letters by registered mail on 21 September and 30 November 2010 to Poarta Albă Prison. In view of the applicant’s failure to reply to those letters and of the difference between the applicant’s signature on the application form and the signatures on the return receipts, on 12 January 2011 the Court asked the Government to submit additional information as to whether the two letters had reached the applicant. 33. On 24 February 2011 the Government replied that as the applicant had been transferred to Poarta Albă Prison and subsequently to Giurgiu Prison, the two letters had not reached him until 1 October and 10 December 2010 respectively. 34. In support of those allegations, the Government submitted copies of incoming mail registers showing that the two letters had been returned from Craiova Prison owing to the applicant’s transfer. They also submitted a copy of a page from a register entitled “Planning of personnel for prisoner’s escort”, on which the applicant’s name, his signature and the registration number of the letter of 21 September 2010 appeared. The page was not dated. A copy of a page from Giurgiu Prison’s incoming mail register showed the applicant’s name and signature confirming receipt of the Court’s letter of 30 November 2010 on 10 December 2010. Another copy of a page from an incoming mail register of 31 January 2011 showed the applicant’s signature for a delivery from the Council of Europe. 35. The Government further submitted that the signatures on the return receipts belonged to the prison employee in charge of receiving and distributing correspondence from and to the detainees, as provided for by the prison regulations. In this connection, they submitted a copy of the procedural rules for ensuring prisoners’ right to correspondence, as approved by the National Administration of Prisons, as well as a copy of the relevant internal regulations in force in Poarta Albă Prison. It appears from those documents that the correspondence addressed to prisoners is collected by designated staff members, who confirm the collection of mail by signing the post office register. Subsequently, the receipt of mail by the detainee to whom it is addressed is confirmed by the detainee’s signature in the prison’s incoming mail register. 36. Among the documents attached to the Government’s response was a copy of a statement signed by the applicant on 4 February 2011 and drafted in the following terms: “... With respect to the letter sent by the E.C.H.R. [the Court] to the Romanian Ministry of Foreign Affairs concerning the letters addressed to me, which remained without reply, I declare that I submitted these 2 (two) petitions, being unsatisfied with the conditions of detention in Craiova Prison. ... I was transferred to Poarta Albă Prison and subsequently to Giurgiu Prison. I declare that I no longer wish to correspond with the E.C.H.R. because I was transferred to another prison and the previous problems do not interest me anymore. In order to clarify any suspicions, I can hand over copies of the letters in question to the Giurgiu Prison. ...” 37. In a letter dated 16 May 2011 the applicant replied to the Government’s submissions, stating that the authorities in the prisons of Craiova, Poarta Albă and Giurgiu continuously refused to ensure that his correspondence reached the Court, even threatening him that if he continued to complain before the Court “he would get out of prison only in a coffin” (“Dacă mai continui procesul la Curtea Europeană te vom scoate de aici în patru scânduri”). He further alleged that he had been transferred from Poarta Albă to Giurgiu Prison only to make him give up his application before the Court, and that he had been forced to sign the statement of 4 February 2011 in the office of the prison section director and in the presence of three masked guards. He mentioned that he intended to pursue his application before the Court. 38. The applicant also mentioned that he had received the Court’s letters of 21 September and 30 November 2010 with excessive delay. They had been opened. 39. The Government submitted that all letters addressed to detainees were opened in order to check them for forbidden elements. They were then handed to the recipients without their content being read by the authorities. However, correspondence received from non-governmental organisations or international institutions such as the Court was never opened. With respect to the two letters in question, the Government contended that they had been handed to the applicant in due time and without being opened. | 1 |
test | 001-170359 | ENG | ITA | GRANDCHAMBER | 2,017 | CASE OF PARADISO AND CAMPANELLI v. ITALY | 1 | Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | András Sajó;André Potocki;Angelika Nußberger;Dmitry Dedov;Egidijus Kūris;Guido Raimondi;Helen Keller;Helena Jäderblom;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano;Síofra O’Leary;Vincent A. De Gaetano;Yonko Grozev | 8. The applicants – a married couple – were born in 1967 and 1955 respectively and live in Colletorto. 9. After trying to have a child and having unsuccessfully resorted to medically assisted reproduction techniques, the applicants put themselves forward as adoptive parents. 10. On 7 December 2006 the applicants obtained official authorisation from the Campobasso Minors Court to adopt a foreign child within the meaning of Law no. 184 of 1983, entitled “The Child’s Right to a Family” (hereafter, “the Adoption Act”), subject to the condition that the child’s age was to be compatible with the limits foreseen by the Act (see paragraph 63 below). The applicants state that they waited in vain for a child who was eligible for adoption. 11. They subsequently decided to try resorting to assisted reproduction techniques again and to a surrogate mother in Russia. To that end, they contacted a Moscow-based clinic. The first applicant stated that she travelled to Moscow, transporting from Italy the second applicant’s seminal fluid, duly conserved, which she handed in at the clinic. A surrogate mother was found and the applicants entered into a gestational surrogacy agreement with the company Rosjurconsulting. After a successful in vitro fertilisation on 19 May 2010, two embryos were implanted in the surrogate mother’s womb on 19 June 2010. 12. On 16 February 2011 the Russian clinic certified that the second applicant’s seminal fluid had been used for the embryos to be implanted in the surrogate mother’s womb. 13. The first applicant travelled to Moscow on 26 February 2011, the clinic having indicated that the child was due to be born at the end of the month. 14. The child was born in Moscow on 27 February 2011. On the same day the surrogate mother gave her written consent to the child being registered as the applicants’ son. Her written declaration, bearing the same date and read aloud at the hospital in the presence of her doctor, the chief physician and the head of the hospital department, is worded as follows (English translation of the original Russian version): “I, the undersigned... have given birth to a boy in the ... maternity hospital in Moscow. The child’s parents are an Italian married couple, Giovanni Campanelli, born on ... and Donatina Paradiso, born on..., who expressed in writing their wish to have their embryos implanted in my womb. On the basis of the foregoing and in accordance with section 16(5) of the Federal Law on Civil Status and Article 51(4) of the Family Code, I hereby give my consent for the above couple to be entered in the birth record and the birth certificate as parents of the child to whom I have given birth...” 15. In the days following the child’s birth, the first applicant moved with him into a flat in Moscow, rented by her in advance. The second applicant, who had remained in Italy, was able to communicate with her regularly via internet. 16. On 10 March 2011 the applicants were registered as the new-born baby’s parents by the Registry Office in Moscow. The Russian birth certificate, which indicated that the applicants were the child’s parents, was certified in accordance with the provisions of the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. 17. On 29 April 2011 the first applicant went to the Italian Consulate in Moscow, with the birth certificate, in order to obtain the documents that would enable her to return to Italy with the child. The Italian Consulate issued the documents enabling the child to leave for Italy with the first applicant. 18. On 30 April 2011 the first applicant and the child arrived in Italy. 19. In a note of 2 May 2011 – which was not filed in the proceedings before the Court – the Italian Consulate in Moscow informed the Campobasso Minors Court, the Ministry of Foreign Affairs and the Colletorto Prefecture and Municipality that the paperwork in respect of the child’s birth contained false information. 20. A few days later the second applicant contacted the Colletorto municipality, requesting that the birth certificate be registered. 21. On 5 May 2011 the prosecutor’s office opened criminal proceedings against the applicants, who were suspected of “misrepresentation of civil status” within the meaning of Article 567 of the Criminal Code, of “use of falsified documents” within the meaning of Article 489 of the Criminal Code and of the offence set out in section 72 of the Adoption Act, since they had brought the child to Italy in breach of the procedure provided for by the provisions on international adoption contained therein (see paragraph 67 below). 22. In parallel, on 5 May 2011, the Public Prosecutor’s Office at the Campobasso Minors Court requested the opening of proceedings to make the child available for adoption, since he was to be considered as being in a state of abandonment for the purposes of the law. On the same date the Minors Court appointed a guardian ad litem (curatore speciale) and opened proceedings to make the child available for adoption. 23. On 16 May 2011 the Minors Court placed the child under guardianship at the request of the Public Prosecutor. The child’s guardian asked the court to suspend the applicants’ parental responsibility, in application of section 10 § 3 of the Adoption Act. 24. The applicants challenged the measures in respect of the child. 25. Following a request of the Minors Court on 10 May 2011, the applicants were visited by a team of social workers on 12 May 2011. Their report, dated 18 May 2011, indicated that the applicants were viewed positively and respected by their fellow citizens, and that they had a comfortable income and lived in a nice house. According to the report, the child was in excellent health and his well-being was self-evident, since he was being cared for by the applicants to the highest standards. 26. On 25 May 2011 the first applicant, assisted by her lawyer, was questioned by the Larino carabinieri. She stated that she had travelled to Russia alone in September 2008, transporting her husband’s seminal fluid. She stated that she entered into a contract with the company Rosjurconsulting, which had undertaken to find a surrogate mother willing to be implanted with genetic material from the first applicant and her husband through the Vitanova Clinic in Moscow. The applicant explained that this practice was perfectly legal in Russia and had made it possible for her to obtain a birth certificate which identified the applicants as parents. In June or July 2010 the first applicant had been contacted by the Russian company, which informed her that a surrogate mother had been found, and she had given her consent to the medical procedure. 27. On 27 June 2011 the applicants were heard by the Minors Court. The first applicant stated that, after eight unsuccessful attempts at in vitro fertilisation, which had endangered her health, she had resorted to the Russian clinic, since it was possible in that country to use ova from a donor, which were subsequently implanted in the surrogate mother. 28. On 7 July 2011 the court ordered that DNA testing be carried out in order to establish whether the second applicant was the child’s biological father. 29. On 11 July 2011 the Ministry of the Interior asked the Registry Office to refuse to enter the particulars of the birth certificate in the civilstatus register. 30. On 1 August 2011 the second applicant and the child underwent DNA testing. The result of these tests showed that there was no genetic link between them. 31. Following the outcome of these tests, the applicants sought an explanation from the Russian clinic. Months later, in a letter of 20 March 2012, the clinic’s management informed them that it had been surprised by the results of the DNA test. It stated that there had been an internal inquiry, since an error had clearly occurred, but it had proved impossible to identify the individual responsible for the error, given that there had been dismissals and recruitment of other staff in the meantime. 32. On 4 August 2011 the Registry Office of the Colletorto Municipality refused to register the Russian birth certificate. The applicants lodged an appeal with the Larino Court against this refusal. The subsequent proceedings are set out in paragraphs 46-48 below. 33. The Public Prosecutor asked the Larino Court to give the child a new identity and to issue a new birth certificate. 34. As part of the proceedings to make the child available for adoption which were then pending before the Minors Court (see paragraph 22 above), the applicants asked a psychologist, Dr I., to prepare a report on the child’s well-being. The report drawn up by Dr I. on 22 September 2011, after four meetings with the child, indicates that the applicants – who were attentive to the child’s needs – had developed a deep emotional bond with him. The report indicated that the grandparents and other family members also surrounded the child with affection, and that he was healthy, lively and responsive. Dr I. concluded that the applicants were suitable parents for the child, both from a psychological perspective and in terms of their ability to educate him and bring him up. She added that possible removal measures would have devastating consequences for the child, explaining that he would go through a depressive phase on account of a sense of abandonment and the loss of the key persons in his life. In her opinion, this could lead to somatic symptoms and compromise the child’s psycho-physical development, and, in the long term, symptoms of psychotic pathology could emerge. 35. The applicants asked for the child to be placed with them, with a view to adopting him if necessary. 36. By an immediately enforceable decision of 20 October 2011, the Campobasso Minors Court ordered that the child be removed from the applicants, taken into the care of the social services and placed in a children’s home (casa famiglia). 37. The relevant passages of the Minors Court’s decision read as follows: “... In their evidence Mr Campanelli and Mrs Paradiso stated that Mrs Paradiso had travelled to Russia carrying her husband’s semen in a special container, and had there entered into an agreement with the company Rosjurconsulting. Under this agreement, Mrs Paradiso had delivered her husband’s semen to a pre-determined clinic. One or more eggs from an unknown female donor had been fertilised in vitro with this semen, and then implanted into another woman, whose identity is known and who had subsequently given birth to the child in question on 27 February 2011. In exchange, Mr Campanelli and Mrs Paradiso had paid a large amount of money. Mrs Paradiso stated that the woman who had given birth to the child had waived her rights to him and had consented to him being referred to on the birth certificate, drawn up in Russia, as the son of Mr Campanelli and Mrs Paradiso (a copy of the informed consent, given on 27 February 2011 by the woman who gave birth to the child, is on file in these proceedings). A court-appointed expert witness was then instructed to establish whether the minor child was the biological son of Giovanni Campanelli. In her report the court-appointed expert witness, Ms [L.S.], concluded that the results obtained by means of typing of the DNA of Giovanni Campanelli and the DNA of the minor child [T.C.] rule out Giovanni Campanelli as the child’s biological father. In today’s hearing Mr Campanelli and Mrs Paradiso referred to their previous evidence and Mrs Paradiso repeated that she had taken her husband’s semen to Russia to be used for the purpose of the intended fertilisation. However, the conclusions of the court-appointed expert witness have not been challenged. At the close of the hearing, the Public Prosecutor requested that the application by Mr Campanelli and Mrs Paradiso be refused, that the minor child be placed in the care of third parties and that a temporary guardian be appointed for him. The child’s guardian ad litem asked that the child be placed in care under section 2 of the Adoption Act and that a guardian be appointed. Mr Campanelli and Mrs Paradiso requested primarily that the court award them temporary care of the child with a view to subsequent adoption; in the alternative, they requested the suspension of these proceedings pending the criminal classification of the offences, and the suspension of the above-mentioned criminal proceedings against them and of the proceedings before the Campobasso Court of Appeal to challenge the refusal to register the child’s birth certificate; again in the alternative, they requested the suspension of these proceedings under section 14 of Law no. 184/1983 for the purpose of a possible repatriation of the minor child to Russia, or, failing that, for the child to be placed with them under section 2 of the cited law. That being the case, the court finds that the statements by Mr Campanelli and Mrs Paradiso regarding the delivery to Russia of Giovanni Campanelli’s genetic material are not supported by any evidence. On the other hand, it has been established that the minor [T.C.] is neither the biological son of Donatina Paradiso, nor, given the evidence of the expert report, of Giovanni Campanelli. At the present time the only certainty is the identity of the woman who gave birth to the baby. The biological parents of the baby, that is, the man and the woman who provided the gametes, remain unknown. In the light of this evidence, the present case cannot be viewed as a case of so-called gestational surrogacy, which is the case where the surrogate mother who gives birth to the baby has no genetic link to him or her, the fertilisation having taken place with the egg(s) of a third woman. Indeed, in order to be able to talk of gestational or traditional surrogacy (in the latter, the surrogate mother makes her own ovules available) there must be a biological link between the child and at least one of the two intended parents (in this specific case, Mr Campanelli and Mrs Paradiso), a biological link which, as has been seen, is non-existent.” In the court’s view, the applicants had thus placed themselves in an unlawful situation: “It follows that by bringing a baby to Italy, passing him off as their own son, in blatant infringement of the provisions of our legislation (Law no. 184 of 4 May 1983) governing inter-country adoption of children, Mr Campanelli and Mrs Paradiso have acted unlawfully. Besides any criminal offences which may have been committed (infringement of section 72(2) of Law no. 184/1983), which are not within the jurisdiction of this court, it is noted that the agreement entered into between Mrs Paradiso and the company Rosjurconsulting had unlawful elements since, given the terms of the agreement (the delivery of Mr Campanelli’s genetic material for the fertilisation of another woman’s ovules), it was in breach of the ban on the use of assisted reproductive technology (A.R.T.) of a heterologous type laid down by section 4 of Law no. 40 of 19 February 2004. In any event, it is pointed out that despite being in possession of the authorisation for inter-country adoption issued by order of this court on 7 December 2006, Mr Campanelli and Mrs Paradiso, as has been stated, intentionally evaded the provisions of Law no. 184/1983, which provide not only that the intended adoptive parents must apply to an authorised body (section 31) but also for the involvement of the Commission for Inter-country Adoption (section 38), the only body competent to authorise entry and permanent residence of a foreign child in Italy (section 32).” The court therefore found it necessary, first and foremost, to put an end to this unlawful situation: “It is therefore necessary, above all, to prevent this unlawful situation from continuing, since to maintain it would be equivalent to ratifying unlawful conduct in open violation of the provisions of our legislation. Accordingly, it is necessary to remove the minor child from Mr Campanelli and Mrs Paradiso and place him in an appropriate structure with a view to identifying a suitable couple to foster the child as soon as possible. The Social Services Department of the Municipality of Colletorto is therefore instructed to identify an appropriate structure and to place the child in it. The Italian legislation on adoption applies to this child in accordance with section 37a of Law No. 184/1983, there being no doubt that he is in Italy in a state of abandonment, having been deprived of his biological parents and other relatives, and the mother who gave birth to him having renounced him. Admittedly, it cannot be denied that the child will in all likelihood suffer harm from being separated from Mr Campanelli and Mrs Paradiso. However, given the age of the child and the short time he has spent with them, the court cannot agree with the conclusions of the report by psychologist [Dr I.] (instructed by Mr Campanelli and Mrs Paradiso), finding that it is certain that the child’s separation from them would entail devastating consequences. Indeed, according to the literature on this subject, the mere separation from the main care-givers is not a causal agent of a psychopathological state in a child unless other causal factors are present. The trauma caused by the separation from Mr Campanelli and Mrs Paradiso will not be irreparable, given that a search will begin immediately for a couple able to attenuate the consequences of the trauma, through a compensatory process that will encourage a new adaptation. It is also pointed out that the fact that Mr Campanelli and Mrs Paradiso (and in particular Mrs Paradiso) have put up with the hardships and the difficulties of A.R.T (Mrs Paradiso has also stated that during one of these interventions her life was at risk) and have preferred, despite being in possession of an approval for inter-country adoption, to circumvent Italian legislation on this subject gives rise to the doubt and the fear that the minor child may be an instrument to fulfil a narcissistic desire of Mr Campanelli and Mrs Paradiso or to exorcise an individual or joint problem. In the light of the conduct of Mr Campanelli and Mrs Paradiso during the events under examination, all of this throws a consistent shadow over their possession of genuine affective and educational abilities and of the instinct of human solidarity which must be present in any person wishing to bring the children of others into their lives as their own children. The separation of the minor child from Mr Campanelli and Mrs Paradiso thus corresponds to the best interests of the child.” 38. According to the applicants, the court’s decision was enforced on the same day, without their having been informed of the decision in advance. 39. The applicants lodged an appeal (reclamo) before the Campobasso Court of Appeal. They argued, inter alia, that the Italian courts could not contest the Russian birth certificate. They further requested that no measures be taken concerning the child while the criminal proceedings against them and the proceedings challenging the refusal to enter the birth certificate in the Italian civil-status register were pending. 40. By a decision of 28 February 2012, the Campobasso Court of Appeal dismissed the appeal. The Court of Appeal found that the child T.C. was “in a state of abandonment” (in stato di abbandono) within the meaning of section 8 of the Adoption Act, as the applicants were not his parents. In those circumstances, the question of whether or not the applicants were criminally liable and whether or not there had been an error in the use of seminal fluid of unknown origin was not, in its view, relevant. In the Court of Appeal’s opinion, it was not appropriate to await the outcome of the criminal trial or of the proceedings brought by the applicants to challenge the refusal to enter the particulars of the birth certificate in the register. The Court of Appeal also considered that section 33 of Law no. 218/95 (the Private International Law Act) did not prevent the Italian courts from refusing to comply with certified information from a foreign State, and that there was no issue of lack of jurisdiction, since, according to section 37bis of the Adoption Act, “... the Italian law governing adoption, fostering, and necessary measures in case of urgency shall be applicable to a foreign minor child who is in [Italy] in a state of abandonment” (cf. also Cass 1128/92)”. 41. No appeal to the Court of Cassation lay against that decision (see paragraph 68 below). 42. In the meantime, on 30 October 2011 the public prosecutor at the Larino Court had ordered the preventive seizure of the Russian birth certificate, on the ground that it was an essential item of evidence. In the prosecutor’s view, in all probability the applicants had not only committed the offences with which they were charged, but they had attempted to conceal them. They had, according to him, inter alia, stated that they were the biological parents and had then corrected their versions of events as these were successively disproved. 43. The applicants challenged the preventive seizure order. 44. By a decision of 20 November 2012, the Campobasso Court dismissed the applicants’ appeal on the ground of the strong suspicions that they had committed the offences in question. In particular, the court noted the following facts: the first applicant had spread a rumour that she was pregnant; she had gone to the Italian Consulate in Moscow and implied that she was the natural mother; she had subsequently admitted that the child had been born to a surrogate mother; she had stated to the carabinieri on 25 May 2011 that the second applicant was the biological father, which had been disproved by the DNA tests; she had thus made false statements; she had been very vague as to the identity of the genetic mother; the documents concerning the surrogate motherhood stated that the two applicants had been seen by the Russian doctors, which did not correspond to the fact that the second applicant had not travelled to Russia; the documents relating to the birth did not give any precise date. The court considered that the only certainty was that the child had been born and that he had been handed over to the first applicant against payment of almost 50,000 euros (EUR). In the court’s view, the hypothesis that the applicants had behaved illegally with a view to having the particulars of the birth certificate entered in the civilstatus register and to circumventing the Italian legislation thus appeared well-founded. 45. In November 2012 the Public Prosecutor transmitted the decision regarding the preventive seizure to the Minors Court and indicated that a conviction under section 72 of the Adoption Act would deprive the applicants of the possibility of fostering (affido) the child and of adopting him or other minors. In the Public Prosecutor’s view, there was therefore no other solution but to proceed with the adoption procedure for the child, and his temporary placement with a foster family had therefore been requested, in accordance with sections 8 and 10 of the Adoption Act. The Public Prosecutor repeated his request and emphasised that the child had been removed more than a year previously, and that he had since been living in a children’s home (casa famiglia), where he had developed meaningful relationships with the persons responsible for his care. He explained that the child had thus still not found a family environment to replace the one that had been illegally provided by the couple who had brought him to Italy. According to the Public Prosecutor, the child seemed destined for another separation, even more painful than that from the mother who had given birth to him and then from the woman who claimed to be his mother. 46. An appeal having been lodged to contest the Registry Office’s refusal to enter the particulars of the Russian birth certificate in the civilstatus register, the Larino Court declined jurisdiction on 29 September 2011. The proceedings were subsequently resumed before the Campobasso Court of Appeal. The applicants insisted that the particulars of the Russian birth certificate be entered in the Italian register. 47. By an immediately enforceable decision of 3 April 2013, the Campobasso Court of Appeal ruled on the transcription of the birth certificate into the Italian register. By way of introduction, the Court of Appeal dismissed the objection raised by the guardian to the effect that the applicants did not have standing to bring an action before that court; it acknowledged that the applicants had standing to bring proceedings in that they were referred to as the “parents” in the birth certificate that they wished to have entered in the civil-status register. However, the Court of Appeal considered it clear that the applicants were not the biological parents and concluded that there had not therefore been a gestational surrogacy. It noted that the parties were in agreement that the Russian legislation presupposed a biological link between the child and at least one of the intended parents before the term surrogate motherhood could be used. It concluded that the birth certificate was fraudulent (ideologicamente falso) and in breach of Russian law. In the Court of Appeal’s view, given that there was nothing to show that the child had Russian citizenship, the applicants’ argument that Italian law was inapplicable ran counter to section 33 of the Private International Law Act, which stated that the legal parent-child relationship was determined by the national law governing the child at the time of his or her birth. The Court of Appeal added that it was contrary to public order to register the contested birth certificate, since it was fraudulent. It stated that although the applicants had pleaded their good faith, alleging that they were unable to explain why the second applicant’s seminal fluid had not been used in the Russian clinic, this made no difference to the situation and did not alter the fact that the second applicant was not the biological father. 48. In conclusion, the Court of Appeal held that it was legitimate to refuse to register the Russian birth certificate and to grant the Public Prosecutor’s request that a new birth certificate be issued. The Court of Appeal therefore ordered that a new birth certificate be issued, indicating that the child was the son of persons unknown, born in Moscow on 27 February 2011, and that he would be given a new name, determined in accordance with Presidential Decree no. 396/00. 49. Following execution of the decision issued by the Minors Court on 20 October 2011, the child was placed in a children’s home for about fifteen months, in a location that was unknown to the applicants. All contact between the applicants and the child was prohibited. They were unable to obtain any news of him. 50. In January 2013 the child was placed in a family with a view to his adoption. 51. At the beginning of April 2013 the guardian asked the Minors Court to give the child a formal identity, so that he could be registered for school without complications. He stated that the child had been placed in a family on 26 January 2013, but that he did not have an identity. This “inexistence” had a significant impact on administrative matters, particularly with regard to deciding under what name the child was to be registered for school, for vaccination records, and for residence. While accepting that this situation corresponded to the aim of preventing the applicants from discovering the child’s whereabouts, for his own protection, the guardian explained that a temporary formal identity would enable the secrecy surrounding the child’s real identity to be maintained, while simultaneously enabling him to have access to public services; for the time being, he was entitled only to use emergency medical services. 52. The case file indicates that this request was granted by the Minors Court and that the child received a formal identity. 53. The Government have indicated that the child has now been adopted. 54. The proceedings to make the child available for adoption were resumed before the Minors Court of Campobasso (see paragraph 22 above). The applicants confirmed their opposition to the child’s placement with third persons. The guardian asked for a statement ruling that the applicants no longer had locus standi. The Public Prosecutor asked the Minors Court not to declare the child available for adoption using the name originally given to him, on the ground that, in the meantime, he had opened a second set of proceedings requesting that the child be declared available for adoption under his new identity (child of unknown parents). 55. On 5 June 2013, the Minors Court held that the applicants no longer had standing to act in the adoption proceedings, given that they were neither the child’s parents nor members of his family within the meaning of section 10 of the Adoption Act. The court stated that it would settle the question of the child’s adoption in the context of the other set of adoption proceedings, referred to by the Public Prosecutor. 56. No information has been provided by the parties concerning subsequent developments in the criminal proceedings brought against the applicants. It seems that those proceedings are still pending. | 0 |
test | 001-162676 | ENG | HRV | CHAMBER | 2,016 | CASE OF MILANKOVIĆ AND BOŠNJAK v. CROATIA | 3 | Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention) | Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 5. The applicants were born in 1962 and 1958 respectively and live in Sisak. 6. On 20 June 2011 the Sisak-Moslavina Police Department (Policijska Uprava Sisačko-moslavačka; hereinafter: the “police”) lodged a criminal complaint against the applicants and one other person, alleging that in 1991 and 1992 they had committed war crimes against the civilian population in the area of Sisak and Banovina. 7. Having collected extensive evidence in the course of the preliminary investigation, on 22 June 2011 the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) requested an investigating judge of the Osijek County Court (Županijski sud u Osijeku) to open an investigation in respect of the applicants on suspicion of war crimes against the civilian population, as alleged in the criminal complaint lodged by the police. 8. The investigating judge questioned the applicants in connection with the request of the Osijek County State Attorney’s Office. Both applicants denied the allegations against them. 9. On 22 June 2011 the investigating judge opened an investigation in respect of the applicants on suspicion of war crimes against the civilian population. The investigating judge found, on the basis of the available material, that there was a reasonable suspicion that the first applicant, acting in his capacity as commander of police combat units in the area of Sisak, had ordered and carried out arbitrary arrests and ill-treatment of civilians, and that he had failed to prevent, supress and punish arbitrary arrests and searches and seizures, as well as ill-treatment and killings perpetrated by his subordinates. With regard to the second applicant, the investigating judge found that there was a reasonable suspicion that, as a member of a special police unit of the Sisak police, he had organised a group which had carried out arbitrary arrests, ill-treatment and killings. 10. During the investigation the investigating judge heard evidence from the applicants and questioned numerous witnesses. He also obtained a number of relevant forensic reports on the crime-scene examinations, autopsies and ballistic expertise, and voluminous evidence and documentation concerning the actions of the police units in Sisak at the relevant time. 11. On the basis of the evidence obtained during the investigation, on 16 December 2011 the Osijek County State Attorney’s Office indicted the applicants in the Osijek County Court on charges of war crimes against the civilian population. The first applicant was charged with twenty-four counts of arbitrary arrests, ill-treatment and the killing of civilians, and the second applicant with four counts of ill-treatment and the killing of civilians. The relevant part of the indictment concerning the applicants’ participation in those events reads: “I. Defendant Vladimir Milanković in the period between July 1991 and June 1992, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of a part of the local Serbian population and the Yugoslav People’s Army in the conflict on the Constitutional and territorial integrity of the Republic of Croatia, ... as a commander of the police units in the wider area of Sisak and Banovina ... authorised thereby to give orders to all police units and responsible for [securing] compliance with and application of the laws of war and international humanitarian law relative to the protection of civilian persons on that territory and for the humane treatment of prisoners of war, aware that, due to the conflict and occupation of an important part of Banovina and the terrorising and expulsion of the non-Serbian population from the occupied territories, intolerance towards the Serbian citizens of Sisak was growing, that the security situation in the city was ... extremely complex, that inter-ethnic relations were very tense, that there was a perception amongst the Croatian and other non-Serbian citizens of Sisak that all Serbs were collectively responsible for the war, ... at the same time aware that the police units under his command were mostly composed of members of the local population affected by the suffering, that amongst the members of his subordinate police units there were some individuals who had been previously in conflict with the law, while the members of the reserve police units had not been instructed about or trained on all the obligations arising from the norms of international laws of war and humanitarian law, aware that in the Sisak area members of his subordinate units frequently and without any legal basis carried out searches [and seizures] in the houses and flats of persons of Serbian origin, ... who were, in the course of these unlawful actions, often arrested ... although aware that the arrested persons were subjected to unlawful actions, that during questioning they were accused of collaboration with the enemy, offended, humiliated and coerced, that some of them were physically and psychologically ill-treated and that grave bodily injuries were inflicted on them, and that already on 4 August 1991, during one such intervention ... V.B. [was arrested and subsequently] brutally beaten by a number of unknown members of the reserve police unit ..., and that the numerous injuries he had sustained led to his death the same evening in the Sisak hospital, although aware that in the above-noted circumstances, if he failed to take timely and adequate measures, the members of his subordinate units would continue their unlawful actions against the citizens of Sisak of Serbian origin and their inhumane treatment of prisoners of war, although under the commonly recognised rules of international laws of war and humanitarian customary law relative to the protection of civilian persons, and the command responsibility for the acts of subordinates in times of armed conflict, contrary to Articles 3 § 1 (a) and (c), 13, 27, 31 and 32 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Article 4 §§ 1 and 2 (a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II), Articles 75, 86 and 87 of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) and Article 3 § 1 (a) and (c) and Article 13 of the Third Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, he was required to take measures to prevent, supress and punish such unlawful actions, he failed to do so. On the contrary, by using his authority as commander of the police units, he prevented the taking of necessary measures to identify the direct perpetrators and thereby condoned the unlawful actions of his subordinates and encouraged them to take such actions, accepting that they would continue with their actions and condoning their consequences. Meanwhile he also personally participated in ill-treatment and attacks on certain civilians and ordered the unlawful detention of a number of civilians of Serbian origin ... II. Defendant Drago Bošnjak in the second half of August 1991, ..., as a member of the special police unit V. of the Sisak Police Department, together with, at present, unknown members of that unit, ..., in order to carry out coercion and revenge on citizens of Serbian origin, contrary to Articles 3 § 1 (a) and (c), 13, 27 and 32 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Article 4 §§ 1 and 2 (a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II), organised and led a group of unknown members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin ...” 12. The applicants objected to the indictment. On 27 January 2012 a three-judge panel of the Osijek County Court confirmed the existence of a reasonable suspicion that they had committed the offences listed in the indictment, and sent the case to trial. 13. At a hearing held on 21 May 2012 before the Osijek County Court the applicants pleaded not guilty to the charges. 14. In the further course of the proceedings a number of hearings were held before the Osijek County Court, notably on 11-13 June; 2-4 and 9-11 July; 4-5 and 17-19 September; 9-10 and 15-17 October; 5, 7, 19, 20-21 November, 11-12 December 2012; as well as on 4-5 and 18-20 February; 18-20 March; 29 April; 14 and 28 June; 26 August; 29 September; and 14-16 October 2013. Several witnesses were questioned and voluminous evidence was examined. 15. The closing hearing was held on 2 December 2013. By a judgment of 9 December 2013 the Osijek County Court found the first applicant guilty as charged and sentenced him to eight years’ imprisonment. It acquitted the second applicant on the grounds of lack of evidence. 16. The first applicant challenged the first-instance judgment before the Supreme Court (Vrhovni sud Republike Hrvatske), alleging a number of substantive and procedural flaws. The Osijek County State Attorney’s Office also lodged an appeal before the Supreme Court, challenging the acquittal of the second applicant and complaining that the sentence given to the first applicant was lenient. 17. On 10 June 2014 the Supreme Court upheld the acquittal of the second applicant and increased the first applicant’s sentence to ten years’ imprisonment. The judgment of the Osijek County Court thereby became final. 18. On 20 June 2011 the applicants were arrested in connection with the criminal complaint lodged against them by the police (see paragraph 6 above). 19. On 22 June 2011 the investigating judge ordered the applicants’ pre-trial detention for one month under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). The relevant part of the decision reads: “As an investigation has been opened in respect of the defendants concerning the offences at issue, the general condition [related to the existence of reasonable suspicion] for ordering detention against ... the second defendant Vladimir Milanković and the third defendant Drago Bošnjak has been met. ... A request for the questioning of 232 witnesses has been made. Most of these witnesses live in the Sisak area and most of them still work or have worked as police officers ... who were subordinate to the second defendant Vladimir Milanković. Specifically, in the period at issue the second defendant Vladimir Milanković was a deputy to the Chief of the Sisak Police Department ... and the real commander of the entire police force [in the Sisak area]. The records of the police interviews show that several witnesses who should be questioned [during the investigation] are in fear of the second defendant because they gave statements concerning the impugned actions ... and the second defendant was their superior in the period at issue. Furthermore, amongst the witnesses – including victims who have been ill-treated or are family members of the victims, there is a fear of the defendant and the available material in the case file shows that the witnesses have been threatened ... There is therefore a risk of collusion, [that is to say a risk] that the defendant could, if at large, hinder the investigation by influencing the witnesses. Thus detention under Article 102 § 1 (2) of the Code of Criminal Procedure is justified. Furthermore, since the defendant ... has been charged with individual and command responsibility for the unlawful deprivation of liberty and ill-treatment of thirty-eight civilians of Serbian origin and the killing of thirty-one persons of Serbian origin from the Sisak area, all of which was perpetrated in a particularly brutal manner, including entire families irrespective of the sex or age [of the victims], and in view of the fact that the criminal offence at issue carries a sentence of more than twelve years’ imprisonment, and also the circumstances described in [the decision on opening of the investigation], ... it follows that detention under Article 102 § 1 (4) of the Code of Criminal Procedure is justified. Detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure is also justified in respect of the third defendant Drago Bošnjak. ... A number of witnesses who should be questioned during the investigation, and who were members of unit V., have given different statements about the [relevant] events from those given by the defendant ... which suggests that there is a risk that if at large he could hinder the conduct of the investigation by influencing these witnesses ... The same circumstances which have been stated above concerning the first and the second defendants accordingly apply to the third defendant with regard to the existence of a risk that if at large they could continue with threats to the mentioned witnesses, who have already been threatened several times concerning their statements against the defendants in the proceedings at issue. Thus the detention under Article 102 § 1 (2) of the Code of Criminal Procedure is justified. In respect of the third defendant, reasons for detention under Article 102 § 1 (4) of the Code of Criminal Procedure also exist. In particular, he is suspected of individual responsibility in the commission of war crimes against the civilian population and arbitrary arrests, ill-treatment and the killing of two families Vi. and T. in a highly brutal manner. The description of the offences [referred to in the decision on opening of the investigation] suggests that the circumstances of the offences were particularly serious. The offences were motivated by revenge and ethnic discrimination and were committed in a highly brutal manner against civilians and entire families ... Detention under Article 102 § 1 (4) of the Code of Criminal Procedure is therefore justified.” 20. The applicants appealed against the decision of the investigating judge before a three-judge panel of the Osijek County Court, arguing that it lacked the relevant reasoning. 21. On 5 July 2011 a three-judge panel of the Osijek County Court dismissed the applicants’ appeals as unfounded, endorsing the reasoning of the investigating judge. In particular it noted the following: “There is therefore a reasonable suspicion that the defendants committed the offences alleged [in the decision on opening of the investigation] and thus the general condition for ordering pre-trial detention under Article 102 § 1 of the Code of Criminal Procedure has been met. The impugned decision contains sufficient reasoning as to the existence of a reasonable suspicion, and the appeal arguments, concerning the manner in which the offences were committed or the extent of the criminal wrongdoing relate to something which will be examined during the proceedings. At this stage of the proceedings the existence of a reasonable suspicion is a sufficient condition for ordering pre-trial detention ... and when examining an appeal against the decision ordering detention, the second-instance court is not authorised to examine the facts with regard to the actual existence of the offences at issue or the criminal responsibility of the perpetrator. The justification for pre-trial detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure in respect of the defendants follows from the material in the case file. In this respect the impugned decision provided relevant and detailed reasons, which this second-instance panel accepts. ... Furthermore, the appeal arguments that in the case at issue the same purpose of the detention could be achieved by one of the alternative measures under Article 90 of the Code of Criminal Procedure cannot be accepted ... 22. On 19 July 2011 the investigating judge extended the applicants’ detention for a further two months under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He found that some more witnesses needed to be questioned and that some of them had been threatened with regard to their statements in the criminal proceedings at issue. The investigating judge also reiterated the previous findings concerning the gravity of the charges against the applicants. 23. The applicants appealed against that decision and on 1 August 2011 a three-judge panel of the Osijek County Court dismissed their appeals as ill-founded, reiterating its previous arguments. 24. On 19 September 2011 the investigating judge extended the applicants’ detention for a further three months 25. The applicants challenged that decision, arguing that their continued detention was not justified. On 30 September 2011 a three-judge panel of the Osijek County Court dismissed their appeals as ill-founded, endorsing the findings of the investigating judge. 26. On 28 October 2011 the first applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), contending that his pre-trial detention was not based on relevant and sufficient reasons. 27. On 11 November 2011 the Constitutional Court dismissed the first applicant’s constitutional complaint, endorsing the reasoning of the Osijek County Court. The Constitutional Court in particular stressed: “The Constitutional Court reiterates its opinion, on which the appellant relies in his constitutional complaint, that the mere existence of a ‘reasonable suspicion’ is not sufficient after a certain lapse of time to justify pre-trial detention. It is necessary in such instances, (even under) the case-law of the European Court [of Human Rights], to ascertain the conditions for a possibility [of detention]: a) the existence of ‘relevant and sufficient’ reasons justifying [the detention], and b) whether the competent criminal justice authorities displayed the necessary diligence in the conduct of the proceedings. ... Since Article 102 § 1 (4) of the Code of Criminal Procedure does not explicitly provide for a legitimate aim of detention, as provided for in the other relevant provisions on detention, it is particularly important that the competent criminal justice authorities correctly establish the necessity of applying Article 102 § 1 (4) of the Code of Criminal Procedure ... In view of the findings of the Osijek County Court, and taking into account the sentence of imprisonment which can be imposed in this specific case, as well as the gravity of the charges, the Constitutional Court finds that the decisions of the investigating judge and the three-judge panel of the Osijek County Court comply with the relevant opinions and requirements when extending the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure ...” 28. Following the filing of the indictment against the applicants in the Osijek County Court (see paragraph 11 above), on 19 December 2011 a three-judge panel of that court extended the first applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “There is a reasonable suspicion (and therefore the existence of the general condition for pre-trial detention) that the accused Vladimir Milanković and Drago Bošnjak committed the [war crimes against the civilian population]. ... The second condition [for detention] under Article 102 § 1 (4) of the Code of Criminal Procedure has also been met. This follows from the indictment against the accused Vladimir Milanković and Drago Bošnjak, which describes the physical and mental ill-treatment of the detained civilians, who were beaten until they lost consciousness, subjected to such brutality as to cause bodily harm, arbitrary arrests and beatings. [The accused are suspected of] shooting and bombing family houses, locking civilians in basements without windows or light, taking civilians to unknown locations and shooting them or killing them with hard or sharp objects, and the killing of the entire V. family and part of the T. family out of revenge and ethnic discrimination ... Therefore both defendants are suspected of particular cruelty and mercilessness ..., which, in view of the number of [victims] and the consequences of such conduct, the impugned offences in their entirety significantly surpass the usual circumstances pertinent to such grave offences. This justifies detention under Article 102 § 1 (4) of the Code of Criminal Procedure in respect of the accused Vladimir Milanković and Drago Bošnjak ... The preventive measures [under the Code of Criminal Procedure], in view of the specific circumstances of the offences at issue, could not achieve the purpose of detention ...” 29. The first applicant appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the necessity of and the lack of relevant and sufficient reasons for his continued detention. 30. On 13 January 2012 the Supreme Court dismissed the first applicant’s appeal, upholding the decision of the Osijek County Court. The relevant part of the decision reads: “The impugned conduct of both accused, which includes ill-treatment and other extreme forms of inhumane treatment of civilians, and in the case of the accused Vladimir Milanković also of prisoners of war, some of whom were killed, as well as the failure to prevent such conduct by [Vladimir Milanković’s subordinates] ... suggests a particularly high level of brutality, mercilessness and unimaginable cruelty. Taking also into account that the seriousness of the impugned conduct of both accused on account of its intensity, recurrence and modality, as well as the period in which it took place, significantly surpasses the usual circumstances and consequences of such offences, which are in themselves particularly grave, [the Supreme Court finds] that the circumstances of the offence are particularly grave [justifying detention] under Article 102 § 1 (4) of the Code of Criminal Procedure. The appellate arguments of both accused that the purpose of detention could be achieved by alternative preventive measures cannot be accepted ... as there is public interest justifying the restriction of the accused’s right to personal liberty, guaranteed under the Constitution and the European Convention on Human Rights. The fact that the impugned offences took place twenty years ago does not diminish their gravity and their moral public condemnation ... In particular, the conclusion as to the existence of particularly grave circumstances [of the offences] follows from the specific facts and the conduct with which the accused are charged, and they significantly surpass the usual circumstances related to the commission of such offences. The appellate arguments challenging the existence of a reasonable suspicion, and the assessment of evidence, are not relevant for the decision on detention, as at this stage of the proceedings the existence of a reasonable suspicion follows from the indictment. The second-instance panel, when examining an appeal against a decision on detention, cannot examine the factual findings or the criminal responsibility of the accused.” 31. The first applicant challenged the decision of the Supreme Court by lodging a constitutional complaint with the Constitutional Court. He argued that his continued detention had been arbitrary and contrary to the Constitution and the Convention. 32. On 2 March 2012 the Constitutional Court dismissed the first applicant’ “The Constitutional Court accepts the findings of the Supreme Court ... that detention is justified by the public interest in the case. The Supreme Court correctly stated that the fact that the impugned offences took place twenty years ago does not diminish their gravity or their moral public condemnation ...” 33. On 9 March 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 34 35. On 4 June 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on the seriousness of the specific charges against him and finding that the overall duration of his detention had not been excessive. 36. The first applicant challenged that decision before the Supreme Court, reiterating his previous arguments. On 29 June 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the public interest related to his remand in custody prevailed over his right to liberty. 37. The first applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, arguing in particular that his continued detention was not based on relevant and sufficient reasons. 38. On 26 July 2012 the Constitutional Court dismissed the first applicant’s constitutional complaint, endorsing the reasoning of the Supreme Court. 39. On 27 August 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous findings as to the gravity of the charges against him. 40. The first applicant appealed against that decision to the Supreme Court, invoking his state of health related to an injury to his right hip and challenging his continued pre-trial detention. 41. On the basis of medical documentation submitted by the first applicant, on 26 September 2012 the Supreme Court found that the relevant information concerning his health had not been known to the first-instance court when extending his detention; it thus remitted the case and ordered the first-instance court to examine the matter. 42. On 17 October 2012 a three-judge panel of the Osijek County Court, relying on an expert report which indicated that there was no imminent risk to the first applicant’s health or necessity for urgent surgery, extended the first applicant’s detention. 43 44. The first applicant challenged the decision of the Supreme Court before the Constitutional Court, arguing that his continued detention was no longer reasonable or justified. On 8 January 2013 the Constitutional Court dismissed his complaint as ill-founded, upholding the decision of the Supreme Court. 45. On 14 January 2013 a three-judge panel of the Osijek County Court extended the first applicant’ 46. The first applicant appealed against that decision to the Supreme Court and on 30 January 2013 the Supreme Court dismissed his appeal as ill-founded. The Supreme Court held as follows: “It is therefore, in the view of this court, justified to remand the accused Vladimir Milanković in custody under Article 102 § 1 (4) of the Code of Criminal Procedure ... In view of the fact that the purpose of detention under the cited provision is to prevent persons whose actions provoke particular moral condemnation from being at large, the appeal arguments, according to which the decision of the first-instance court with regard to the necessity of detention lacks the relevant reasoning, cannot be accepted.” 47. The first applicant challenged that decision before the Constitutional Court. On 15 March 2013 the Constitutional Court dismissed his complaint, endorsing the findings of the Supreme Court. 48. On 28 March 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 49. The first applicant challenged that decision before the Supreme Court. On 17 April 2013 the Supreme Court dismissed his appeal on the grounds that there was a persisting public interest warranting his detention. 50. On 14 June 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its findings as to the particular gravity of the charges against him. 51. The first applicant appealed against that decision to the Supreme Court and on 5 July 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the findings of the Osijek County Court. 52. The first applicant then lodged another constitutional complaint before the Constitutional Court, challenging his continued detention. On 26 August 2013 the Constitutional Court accepted his complaint and remitted the case to the Osijek County Court on the grounds that it had failed to indicate in sufficient detail the specific reasons warranting the first applicant’s continued detention. The Constitutional Court explained the relevant principles in the following manner: “Under Article 102 § 1 (4) of the Code of Criminal Procedure on the purpose and aim of detention, and bearing in mind the [Court’s] case-law, which the Constitutional Court accepts, detention on the grounds of ‘particularly grave circumstances’ of an offence ... cannot by itself serve as a purpose. The consequences of the fact that a criminal offence is particularly grave and that its social dangerousness and the ‘extent’ of society’s condemnation are expressed through the possibility of imposing a (long) sentence, are reflected both subjectively and objectively. A defendant facing serious charges and a possibility of incurring a long sentence inevitably has a subjective [incentive] to escape and/or to hinder the proper conduct of the proceedings and/or to reoffend. However, objectively ... there is a possibility of ‘disturbance of the public’, which requires additional care and protection of the public interest. ... ... Accordingly, the extension of detention under Article 102 § 2 (4) of the Code of Criminal Procedure cannot be grounded on a simple repetition of the description of the offence imputed [to a defendant] ... but requires an analysis and a detailed reasoning of all the facts and circumstances, particularly those related to the personality of the defendant, the public interest in his or her remand in custody, as well as the conduct and the results of the proceedings.” 53’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “The release of the accused Vladimir Milanković in respect of whom there is a reasonable suspicion that he has committed the offences at issue, would create public disturbance, particularly amongst members of the Serbian minority, specifically those who were the victims of these offences in the area of Sisak. It should be borne in mind that this concerns not only Sisak, as a small community, but also the surrounding rural areas where the consequences of the war are still present and where the process of normalisation of mutual relations and peaceful coexistence of the citizens, irrespective of their ethnic background, is still ongoing. Thus, the release of the accused from detention would not only disturb the population [of this area] but would also diminish [citizens’] confidence in the judiciary and the social [order] as such. This is especially so given that the mission of the judiciary is not only prosecution, establishing of guilt and punishment of the perpetrators of criminal offences, but also the [creation of a sense] of justice and rule of law from the perspective of citizens.” 54. The first applicant appealed against that decision to the Supreme Court, challenging the extension of his detention. On 27 September 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court. 55. The first applicant challenged the decision of the Supreme Court by lodging a constitutional complaint before the Constitutional Court. On 7 November 2013 the Constitutional Court dismissed the complaint as ill-founded. The relevant part of the decision reads: “... the Constitutional Court accepts the fact that the Supreme Court, in compliance with the decision ... of 26 August 2013, in the impugned decision provided reasons justifying the necessity of detention under Article 102 § 1 (4) of the Code of Criminal Procedure in the circumstances of the present case. In particular, the Supreme Court provided reasons showing that in view of the local circumstances in Sisak and the [Court’s] case-law relevant to the prevention of disturbance to public order (in the terminology of the Supreme Court: public disturbance), the appellant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure was justified. ... ... For these reasons the Constitutional Court finds that the competent courts provided sufficient reasons for their decisions, as required by the decision of the Constitutional Court ... of 26 August 2013. ...” 56. On 26 November 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 57. Following the first applicant’s conviction at first-instance on 9 December 2013 (see paragraph 15 above), he was remanded in custody pending a final judgment. 58. On 19 December 2011, following the filing of the indictment against the applicants in the Osijek County Court (see paragraph 11 above), a three-judge panel of that court extended the second applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure on the grounds of gravity of the charges (see paragraph 28 above). 59. The second applicant appealed against that decision to the Supreme Court, challenging the necessity of his detention and complaining of a lack of relevant and sufficient reasons for ordering it. On 13 January 2012 the Supreme Court dismissed his appeal, upholding the decision of the Osijek County Court (see paragraph 30 above). 60. On 9 March 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments (see paragraph 33 above). 61 62. The second applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, arguing that his continued detention was not justified. On 31 May 2012 the Constitutional Court dismissed his constitutional complaint as ill-founded on the grounds that the Osijek County Court and the Supreme Court had provided relevant and sufficient reasons for his continued detention. 63. On 4 June 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). They relied on the particularly grave circumstances of the specific charges against him and found that the overall duration of his detention had not been excessive (see paragraph 35 above). 64. The second applicant challenged that decision before the Supreme Court. On 29 June 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the public interest in his being remanded in custody prevailed over his right to liberty (see paragraph 36 above). 65. On 27 August 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous findings as to the gravity of the charges against him (see paragraph 39 above). 66. The second applicant challenged that decision before the Supreme Court. On 26 September 2012 the Supreme Court dismissed his appeal as ill-founded, endorsing the decision of the Osijek County Court. 67. On 21 November 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “It is alleged in the confirmed indictment that there is a reasonable suspicion that the accused Drago Bošnjak, in the second half of August 1991, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of part of the local Serbian population and the Yugoslav People’s Army, as a member of special police unit V. of the Sisak Police Department, together with several unidentified members of that unit, organised and led a group of unidentified members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin. Five members of the Vi. family as well as [a certain] N.T. were killed, while [N.T.’s] sons Z. and B. were taken to an improvised detention camp and beaten up, after which they disappeared. The alleged conduct of the accused, especially given the intensity and recurrence of the acts as well as the period in which they took place, was in itself particularly merciless and cruel. In the view of this court, the particularly grave circumstances of the offence surpass the usual circumstances and consequences of such offences and thus justify the detention under Article 102 § 1 (4) of the Code of Criminal Procedure.” 68. The second applicant appealed against that decision to the Supreme Court, arguing that his detention was not justified. On 7 December 2012 the Supreme Court dismissed his appeal as ill-founded. The relevant part of the decision reads: “... the finding of the first-instance court that the grounds for the continued detention of the accused Drago Bošnjak under Article 102 § 1 (4) of the Code of Criminal Procedure still apply is correct. The confirmed indictment shows a relevant degree of reasonable suspicion that the accused committed the offence under Article 120 § 1 of the Criminal Code. Thus the general statutory condition under Article 102 § 1 of the Code of Criminal Procedure has been met. There is a reasonable suspicion that the accused, in the second half of August 1991, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of part of the local Serbian population and the Yugoslav People’s Army, as a member of special police unit V. of the Sisak Police Department, together with several unidentified members of that unit, organised and led a group of unidentified members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin. Five members of the Vi. family as well as [a certain] N.T. were killed, while [N.T.’s] sons Z. and B. were taken to an improvised detention camp and beaten up, after which they disappeared. Contrary to the appeal arguments, the behaviour of the accused described above, particularly given the intensity and number of impugned acts and the period in which they took place, was in itself particularly merciless and cruel. In the view of this second-instance court, the particularly grave circumstances of the offence surpass the usual circumstances and consequences of such offences and thus justify the detention under Article 102 § 1 (4) of the Code of Criminal Procedure. The remaining appeal arguments concern the assessment of evidence and the proceedings and are not decisive for the decision on detention. They are a subject of discussion before the first-instance court. In addition, the detention of the accused Drago Bošnjak does not raise an issue under the principle of proportionality with regards to the gravity of the offence, the sentence which could be expected and the necessity of detention.” 69. The second applicant lodged a constitutional complaint against the decision of the Supreme Court, challenging the necessity of his detention. On 31 January 2013 the Constitutional Court dismissed it as ill-founded. The relevant part of the decision reads: “Bearing in mind all the circumstances of the present case enumerated in the impugned decisions, the fact that there is a reasonable suspicion that the appellant (in detention since 20 June 2011) ‘committed an offence under Article 120 § 1 of the Criminal Code by which a general statutory condition under Article 102 § 1 of the Code of Criminal Procedure’ has been satisfied, and ‘in particular the intensity and recurrence of the impugned acts’, the Constitutional Court finds that, notwithstanding the presumption of the appellant’s innocence (and the fact that he has been in detention for nineteen months) the compelling public interest outweighs the accused’s right to liberty. Therefore, the Constitutional Court finds that the detention ‘with regard to the gravity of the offence and the sentence which could be expected’ is entirely proportionate to the legitimate aim pursued, and that the impugned decision does not limit the rights or freedoms of the appellant contrary to [the Constitution].” 70. On 5 February 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 71. The second applicant appealed to the Supreme Court, challenging the existence of relevant and sufficient reasons for his detention. On 27 February 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court. 72. The second applicant challenged the decision of the Supreme Court by lodging a constitutional complaint before the Constitutional Court. On 18 April 2013 the Constitutional Court dismissed his complaint as ill-founded on the grounds that the lower courts, when extending his detention, had provided relevant and sufficient reasons. 73. On 26 April 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous reasoning. 74. The second applicant appealed against that decision before the Supreme Court. On 17 May 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court. 75. The second applicant challenged that decision before the Constitutional Court, arguing that his continued detention had been excessive and disproportionate. 76. On 11 July 2013 the Constitutional Court, having examined the second applicant’s constitutional complaint, remitted the case to the Osijek County Court on the grounds that the impugned decisions on detention lacked the relevant reasoning. The Constitutional Court reiterated its case-law relevant to the requirements for ordering and extending pre-trial detention on the grounds of gravity of the charges under Article 102 § 1 (4) of the Code of Criminal Procedure (see paragraph 52 above). 77. On 17 July 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous findings concerning the specific circumstances of the offences with which the second applicant was charged. 78. The second applicant appealed against that decision to the Supreme Court. On 31 July 2013 the Supreme Court dismissed his appeal as ill-founded, pointing out the following: “It goes without saying that the release of a person, in respect of whom there is a reasonable suspicion that he has committed the impugned acts, would consequently create a public disturbance, in particular by the national minorities, amongst whom there are also family members of the victims of the conduct at issue, which took place during the war in the Sisak area. This is all the more so since [Sisak] is a small community which has been seriously affected by the war and where the long and difficult process of normalisation of mutual relations and peaceful coexistence is ongoing.” 79. The second applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, challenging the reasonableness of his continued detention. 80. On 27 September 2013 the Constitutional Court dismissed the second applicant’s constitutional complaint, finding that his detention so far had been based on relevant and sufficient reasons. However, the Constitutional Court stressed: “In view of the findings [with regard to the possibility of ordering detention on the grounds of the gravity of the charges] and the length of the appellant’s continued detention, as well as the length of the criminal proceedings and the expected termination of the main hearing, and in view of the fact that the detention was ordered twenty years after the alleged commission of the offences with which the appellant has been charged, the Constitutional Court finds that the validity of the findings of the Supreme Court [with regard to the avoidance of public disturbance] has reached its temporal limits. In particular, every further reliance on the risk of public disturbance as a ground for extending the appellant’s detention could turn that ground for detention into a strong basis [for detention], which would mean in practice a constitutionally unacceptable and prohibited obligatory deprivation of liberty ... It therefore follows from the circumstances of the present case that a further extension of detention on the grounds of a risk of public disturbance could lead to a violation of the appellant’s constitutional right to liberty. It is time therefore for the competent court to [re]examine the justification for the appellant’s continued detention in view of this new fact.” 81. On 30 September 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating that in view of the specific charges held against him, his release from detention could create a public disturbance. 82. The applicant appealed against that decision to the Supreme Court, arguing that his detention was no longer justified. On 25 October 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court. 83. On 2 December 2013 a three-judge panel of the Osijek County Court, anticipating the pronouncement of the first-instance judgment acquitting the second applicant (see paragraph 15 above), ordered his immediate release from detention. The second applicant was released on 9 December 2013. 84. Meanwhile, the second applicant lodged a constitutional complaint before the Constitutional Court challenging the extension of his detention by the Osijek County Court on 30 September 2013, which had been upheld by the decision of the Supreme Court on 25 October 2013 (see paragraphs 81-82 above). 85. On 13 January 2014 the Constitutional Court found that the extension of the applicant’s detention from 30 September to 9 December 2013 (see paragraphs 81-82 above) had violated his right to liberty under Article 22 of the Constitution. The relevant part of the decision reads: “... in the impugned decisions [the Osijek County Court and the Supreme Court] failed to cite any new reason satisfying the Constitutional Court that the temporal limits [for detention based on the necessity to prevent public disturbance] had not been attained, but they nevertheless extended the appellants detention. Moreover, seventy days after the first-instance court had extended the appellant’s detention by means of the impugned decision, and forty-five days following the confirmation of the lawfulness of such decision by the Supreme Court, the competent criminal court terminated the criminal proceedings against the appellant at first instance, acquitting him. Thus in the appellant’s case what the Constitutional Court indicated in its decision ... of 27 September 2013 was confirmed: that ‘every further reliance on the risk of public disturbance as a ground for extending the appellant’s detention could ... turn that ground for detention into a strong basis [for detention], which would mean in practice a constitutionally unacceptable and prohibited obligatory deprivation of liberty’. The Constitutional Court does not find such conduct by the competent courts acceptable since the liberty of a person is an essential value protected by the Constitution. ... It follows that for the period of validity of the impugned decisions of the Osijek County Court and the Supreme Court (between 30 September 2013 and 9 December 2013) the appellant’s right to liberty, guaranteed under Article 22 of the Constitution, has been violated. Lastly, the Constitutional Court should also point out that there has been a flagrant violation of the appellant’s constitutional right to liberty in the period between 2 December 2013 and 9 December 2013. ... The Constitutional Court finds that from the perspective of the appellant’s constitutional right to liberty it is irrelevant that the [Osijek County Court] in its decision of 2 December 2013 to terminate the detention referred to the (forthcoming) judgment of 9 December 2013 by which the appellant was acquitted. From the perspective of the appellant’s right to liberty, it is exclusively relevant that in the operative part of the decision of 2 December 2013 [the Osijek County Court] ordered that the appellant should be ‘immediately released’, but that the court order was not executed until seven days later. ... In these circumstances the seven days of the appellant’s detention (between 2 and 9 December 2013) should a priori be considered as a flagrant violation of his right to liberty, guaranteed under Article 22 of the Constitution.” 86. In October 2014, after he had been finally acquitted, the applicant instituted the friendly settlement procedure with the State concerning the compensation for his unjustified detention. Following an unsuccessful arrangement with the Ministry of Justice (Ministarstvo pravosuđa) over the amount of compensation, the applicant lodged a civil action for damages in the Osijek Municipal Court (Općinski sud u Osijeku). On 15 October 2015, on the basis of the State’s partial admission of the claim, the Osijek Municipal Court adopted a partial judgment and awarded him 108,900 Croatian kunas (HRK; approximately 14,300 euros) in non-pecuniary damage plus the applicable statutory interest. This partial judgment became final on 5 November 2015, and the Osijek Municipal Court commissioned an expert report in order to determine the possible extent of the State’s responsibility for the applicant’s suffering in detention. These proceedings are still pending. | 0 |
test | 001-142413 | ENG | HUN | COMMITTEE | 2,014 | CASE OF NAGY v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | András Sajó;Egidijus Kūris;Helen Keller | 4. The applicant was born in 1971 and lives in Balástya. 5. On 11 July 2008 the applicant’s divorced wife brought an action against him seeking the termination of his custody rights. 6. On 29 June 2011 the Pest Central District Court rearranged the applicant’s access rights and dismissed the remainder of the action. The court relied in particular on the opinion of an expert psychologist. 7. On 4 July 2012 the Budapest High Court upheld this judgment (service: 3 September 2012). | 1 |
test | 001-175585 | ENG | DEU | ADMISSIBILITY | 2,017 | PERELMAN v. GERMANY | 4 | Inadmissible | Angelika Nußberger;Erik Møse;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 1. The applicants, Ms Bluma Zipa Perelman and Mr Alain Michel Perelman, are French nationals who were born in 1947 and live in Frankfurt/Main. They were represented before the Court by Mr S. Schödel, a lawyer practising in Bonn. 3. In November 2002 the applicants moved from France to Frankfurt/Main in Germany. They submitted a registration form dated 11 November 2002 to the local registration authority, to inform the latter of their new place of residence. The form required information about their religion, and for both applicants they indicated “Mosaic” (“Mosaisch”) in the relevant part of the form. 4. The applicants remained members of their liberally-oriented Jewish community in France. 5. By letter dated 12 May 2003 the Jewish community of Frankfurt/Main welcomed the applicants as new members. A copy of the community’s statutes was attached to the letter. According to the statutes, all persons of Jewish faith whose place of residence or usual abode was in Frankfurt/Main were members of the community, unless they had made a written objection to the community council within three months from their date of arrival. 6. By letter of 11 June 2003 the applicants opposed membership. They further requested restitutio in integrum (Wiedereinsetzung in den vorigen Stand), pointing out that they had received the community’s statutes only after the expiry of the period for filing an objection. 7. As the community did not accept their objection, the applicants, as a precautionary measure, resigned their membership with effect from the end of October 2003. This was accepted by the community. 8. As a public-law entity (Körperschaft öffentlichen Rechts) the Jewish community of Frankfurt/Main levies a church tax based on the individual income of their members, which is collected by the State tax authorities. For the period from November 2002 to October 2003 the Frankfurt/Main tax office levied a church tax on the applicants. They objected to paying the church tax in a separate set of proceedings which is not the subject of the application at issue. 9. On 9 June 2005 the applicants brought an action before the Frankfurt/Main Administrative Court to obtain a declaration that they had not been members of the community between November 2002 and October 2003. 10. On 20 September 2005 the Frankfurt/Main Administrative Court rejected the action as inadmissible, denying that such a judgment would have a legitimate interest. 11. The applicants appealed and, on 19 May 2009, the Hesse Administrative Court of Appeal dismissed their appeal. It held that the applicants’ action was admissible, but ill-founded because their membership was based on internal regulations of the religious community which had to be recognised by State authorities, in view of the principle of autonomy of religious organisations. 12. On 23 September 2010 the Federal Administrative Court quashed the judgment of the Administrative Court of Appeal and declared that, in the public sphere, the applicants’ membership could not have legal effect. It reasoned, in essence, that notwithstanding the autonomy of religious organisations’ religion was “Mosaic” could not be taken as a declaration of willingness to become members of the local Jewish community. 13. After the Frankfurt/Main Jewish community had lodged a constitutional complaint (no. 2 BvR 278/11), on 17 December 2014 the Federal Constitutional Court, sitting in a chamber of three judges, quashed the Federal Administrative Court’s judgment, finding a violation of the community’s fundamental right under Article 4 §§ 1 and 2, read in conjunction with Article 140 of the Basic Law and Article 137 § 3 of the Weimar Constitution of 11 August 1919 (Weimarer Reichsverfassung). The court held that the Federal Administrative Court had not correctly evaluated the scope and the significance of the guarantee of autonomy (Selbstbestimmungsrecht) afforded to religious communities by the aforementioned Articles of the Basic Law. Regulations governing membership had to be seen as affairs that religious communities are free to determine at their own discretion. The State’s duty to acknowledge the guarantee of autonomy of religious associations for the secular legal sphere found its limits in the negative religious freedom of potential members. The inclusion of members by religious communities had to be acknowledged where this was legitimised by positive declaration, albeit possibly by an implicit declaration. There were various ways to express willingness to be a member of a religious community. This did not necessarily have to be expressed to the religious community itself. From the information submitted by the applicants to the registration office in Frankfurt/Main it could be concluded, from the objective standpoint of the onlooker (objektivierter Empfängerhorizont), that the applicants had expressed their willingness to be members of the Jewish community of Frankfurt/Main. 14. On 21 September 2016 the Federal Administrative Court, to which the case had been remitted, dismissed the applicants’ appeal on points of law. It pointed out that, on procedural grounds, the judgment of the Federal Constitutional Court was binding. It nevertheless expressed doubts as to the compatibility of the finding with Article 9 of the Convention. It noted in particular that the Federal Constitutional Court had attached no importance to the fact that the applicants had not been asked for their religious affiliation but for their religion in the registration form at issue. Notwithstanding the Jewish community of Frankfurt/Main’s conception of itself as a uniform community, everyone who lived in the community’s district and declared his or her religious belief should be free to choose another Jewish community. Due to the binding effect of the judgment of the Federal Constitutional Court, the court considered itself prevented from founding its decision on these aspects. 15. On 23 November 2016 the applicants lodged a constitutional complaint with the Federal Constitutional Court which is still pending (no. 2 BvR 2595/16). Relying on Article 4 § 1 of the Basic Law and Article 9 of the Convention and referring to the Court’s case-law they complained in particular that their membership in the Jewish community of Frankfurt/Main was not based on their consent. | 0 |
test | 001-168853 | ENG | MDA | COMMITTEE | 2,016 | CASE OF GALAIDA AND COPOSCIU v. THE REPUBLIC OF MOLDOVA | 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) | Nebojša Vučinić;Stéphanie Mourou-Vikström | 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 and of the lack of any effective remedy in domestic law. | 1 |
test | 001-152422 | ENG | BGR | CHAMBER | 2,015 | CASE OF MIHAYLOVA AND MALINOVA v. BULGARIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 5. The applicants, daughter and mother, were born respectively in 2001 and 1980 and live in Samokov. Mr Boris Mihaylov, the victim of the police action in question, was a young Roma man: the first applicant’s father and the second applicant’s unmarried partner. The facts of the case, as submitted by the parties, can be summarised as follows. 6. Late in the evening of 3 August 2004, while driving in the centre of Samokov, KK noticed three individuals who were trying to open the doors of a parked lorry. Mr Mihaylov was one of these men. KK called the police. Shortly afterwards, two on-duty police officers from the Samokov District Police Unit, Chief Sergeants S and M, who at that time had been responding to another call, received information from the central office that three “gypsies” had been seen breaking into a lorry and the officers drove immediately to the scene. 7. When the police car, apparently with its siren on, approached the lorry, the three men started running. The officers followed by car. When the street became narrower, they got out of the car and separated, with Chief Sergeant S chasing Mr Mihaylov while Sergeant M followed the other two men, whom he was unable to catch. Chief Sergeant S caught up with Mr Mihaylov by the side of the street, close to a parked car. A short fight followed, and two shots were fired. One of the bullets, fired at very close range, entered the left back of Mr Mihaylov’s head and exited through the right side of his forehead. An ambulance was called and Mr Mihaylov was taken to a hospital where his death was registered at 00.10 a.m. on 4 August 2004. 8. On the same day a criminal investigation (VII-20/2004) was opened against Chief Sergeant S to establish whether he caused Mr Mihaylov’s death as a result of a disproportionate reaction to an attack (Article 119 of the Criminal Code: see paragraph 42 below). At this stage no charge was brought against him. 9. An autopsy was carried out on Mr Mihaylov’s body on 4 August 2004. In his report the forensic pathologist determined that death had resulted from a severe cerebral trauma and ensuing cardiovascular insufficiency. The trauma was caused by a transitory gunshot: the entry wound was located on the left side of the back of Mr Mihaylov’s head and the exit wound on the right side of the forehead towards the temporal bone. The shot was fired from a distance close to point-blank range. The expert noted that, as the head could move in different directions, on the basis of the route of the bullet it was difficult to establish the dynamic position of the victim’s body in relation to the gun at the moment of shooting. He also noted several bruises on the right side of Mr Mihaylov’s face, his right hand and both knees, which he concluded had in all probability resulted from the fall to the ground after the shooting. 10. The pathologist also examined Chief Sergeant S. He noted a reddishpink bruise on his right hand, measuring 0.5 centimetres long, and another bruise measuring 0.5 by 0.8 centimetres on his right side. The pathologist concluded that the injuries could have been inflicted in the manner described by the police officer, namely when he was trying to knock the knife from Mr Mihaylov’s hand and during the struggle for the gun. 11. An inspection of the scene was carried out at 2.20 a.m. on 4 August 2004 by a military investigator in the presence of two certifying witnesses. There was no subsequent day-light examination. The investigator examined the bonnet of the car next to which Mr Mihaylov’s body was found and noted a dent of 3.5 centimetres located at 0.98 metres from the front left corner and 1.03 metres from the front right corner as well as a bullet hole measuring 3 centimetres situated at 1.17 metres from the front left corner and 0.77 metres from the front right corner of the bonnet; blood stains on the bonnet and on the ground next to the car; and another dent with freshly peeling paint on the metal wall of the building to the left of the car. Photographs were taken of the dent and the bullet hole on the bonnet but these were not preserved as physical evidence, nor were impressions made of the dents and bullet holes. The vehicle was not taken away for examination and its owner, a security firm, repaired and sold it before the investigation was formally completed. 12. The investigator found a handgun on the ground under the bonnet of the parked car. The safety lever was lifted and there was one bullet in the barrel and two in the magazine. The investigator found and retrieved one spent cartridge case, on the other side of the street, two to three metres from the parked car where Mr Mihaylov was shot, but no bullets. During the subsequent stages of the investigation proceedings the initial number of cartridges in the officer’s gun was not clarified, nor was it determined how many shots were fired, including whether a warning shot was fired. The statements of the Chief Sergeant S were contradictory on this subject. In his testimony of 4 August 2004 he S stated that he had started with five cartridges in his handgun but on 10 September 2004 he changed his testimony, maintaining that he had had six cartridges. 13. A fingerprint report of 9 August 2004 did not record any traces of fingerprints on the handgun suitable for examination. The report on the acetone-drenched swabs of Chief Sergeant S’s hands of 11 August 2004 found no traces of gunpowder residue. The expert report on Chief Sergeant S’s handgun of 25 August 2004 concluded, inter alia, that it had been in good condition and would have discharged a shot only after the trigger was pulled. 14. During the inspection of the scene of the killing which took place in the early hours of 4 August 2004, the investigating officer found a folding knife, with an eight centimetre blade and a ten centimetre metal handle. The protocol of the search stated that it was found on the bonnet of a car parked across the street from the death scene but it did not state whether the blade was open when it was found. It seems that no steps were taken to check for fingerprints on the knife or to determine its ownership. A mobile telephone was found in a stone vase near the scene of the shooting, but the subsequent investigation did not determine who owned it. 15. The investigator questioned Chief Sergeant S, his colleague Chief Sergeant M and the three security guards who had been standing in the vicinity of the scene at the time of the events. 16. Questioned in the early hours of 4 August 2004, Chief Sergeant S stated that Mr Mihaylov had been running with his arms open wide while trying to escape. As the sergeant caught up to him, Mr Mihaylov had stopped and turned round. At this point Chief Sergeant S noticed that he held a knife, but it was dark and he could not see it well. Mr Mihaylov swung at the sergeant with his left hand, and the officer tried in vain to knock the knife away. Mr Mihaylov then grasped him tightly with both hands behind his back, while reaching for the handgun, which was in the officer’s unbuttoned holster at his waist. The two men had fought briefly for possession of the gun. Chief Sergeant S stated that he felt strongly afraid: it was dark, the other man had his hand on the officer’s loaded gun and was armed with a knife. The officer could not remember the exact position of their bodies in the fight that ensued for the gun and at the moment when the shots were fired, nor could he remember how many shots were involved. He had been expecting the man to shoot or stab him at any moment. 17. Questioned later, Chief Sergeant S stated that after the first shot was fired he panicked and could not remember what happened. In his subsequent statements he explained that he had been stabbed on earlier occasions while on duty, which had made him particularly fearful of knives. He was not even aware who actually pulled the trigger and at one moment he had feared that he had been shot, rather than Mr Mihaylov. 18. Throughout the subsequent proceedings the only testimony about the detail of the fight remained that of Chief Sergeant S. The other officer involved in the chase, Chief Sergeant M, and some other eye witnesses were also questioned in the early hours of 4 August 2004. Chief Sergeant M stated that he telephoned Chief Sergeant S when he lost sight of the other two suspects, to discuss how to proceed. Chief Sergeant S asked him to come to him immediately. When he arrived at the site there were a lot of people and he saw a man taken away by ambulance. Chief Sergeant S’s handgun was beneath a car and there was a blood stain on the ground next to the car. His colleague was extremely upset and told him that he had done the worst. There was a pocket knife on the bonnet of another car nearby. 19. At the time of the events, three employees of a private security company, GK, EK and GD, were chatting in front of their office, which was in a building adjacent to the street where Mr Mihaylov was shot. They were interviewed on five occasions and their statements were inconsistent, both in respect of each man’s previous statements and the statements given by the other men. Their statements varied as regards whether they heard a warning shot, how many shots were fired and whether they saw a knife in Mr Mihaylov’s hand. Some of them remembered the officer warning Mr Mihaylov from a distance to stop and lie down. All of them stated that the events unfolded within seconds and that they could not see what exactly happened when the police officer came into contact with Mr Mihaylov because it was dark. None of them had seen a knife or a gun in the hands of Mr Mihaylov or Chief Sergeant S in this short time, although they saw them afterwards. They agreed that when Chief Sergeant S, who had fallen to the ground with Mr Mihaylov, stood up, he was holding a knife, which he threw and which fell on the bonnet of a car parked on the other side of the street. The officer had been very upset, and appeared to be in a state of shock, waving his arms around, pacing up and down and repeatedly proclaiming: “What did I do?” 20. Later in the proceedings it transpired that there was a camera installed above the entrance door of the security company building, facing the street. The car next to which the shooting took place was parked on the opposite side of the street, at a short distance from where the men were standing. In his testimony of 18 October 2007, GK stated that on the night of the incident the security camera installed above the entrance to the building in which they worked had been broken. Another witness stated that the camera did not record footage, but only monitored the street outside, and was used by the night shift security guards to observe the firm’s vehicles. The guard on duty on the night of the shooting was GD. He was standing outside with the other two witnesses. There was also a dispatcher whose desk was below the monitor screen, but according to GK she could not see it. During his interview of the same day EK stated that he could not remember which dispatcher was on duty that night and that at that time the dispatchers employed by the firm were all new employees of the company. The camera was not inspected and none of the other employees of the firm were interviewed on this point during the investigation. 21. On 30 September 2004 the investigating officer completed his work on case-file VII-20/2004. In his findings on the facts he described the unfolding events in detail as follows: “On 3 August 2004 the operator on duty at the district police station of Samokov Chief Sergeant KB, a witness, took a call from a private person KK who reported that three men were preparing to commit theft from a lorry parked on Tzar Boris III Street. The lorry belonged to Markan Ltd – it was left parked in the street with its signal lights on by GS, who worked as a supplier for Markan Ltd. The operator dispatched patrol officers Chief Sergeant SM and Chief Sergeant VS to the location in question. When the patrol vehicle approached the lorry on Tzar Boris III Street the three men who were around and inside the lorry attempted to escape and started running in the direction of the town centre. The patrol vehicle followed them along Tzar Boris III Street when two of the men ran towards the town centre and one ran towards Otez Paisii Street. Chief Sergeant SM went in pursuit of the two men running towards the town centre and Chief Sergeant VS followed the man who had gone in the direction of Otez Paisii Street; VS fired a warning shot in the air – using a ‘stop’ bullet. On Otez Paisii Street in proximity to Treger Café, and in front of building No. 5 Chief Sergeant VS caught up to the running man who while running had a mobile telephone in one of his hands and a pocket knife in the other. At this moment VS had already put his Makarov KT 23389 pistol into the holster on his hip so that he could run faster, and at the time there was a live bullet in the barrel of the pistol after the firing of the warning shot. VS was wearing a uniform, he had got off a police vehicle bearing insignia, he had shouted to the running man ‘Stop! Police! Get down on the ground!’ but the man had not stopped running. In front of the building on Otez Paisii Street BM stopped running, turned to face the police officer and swung at him with his hand which held a pocket knife. VS saw the blade in the street light and blocked the hand of the man. Without letting go of the knife, BM threw himself on VS, grabbed him around his waist while holding his arms, and attempted to take the gun out of VS’s holster. VS took hold of BM’s hand which was holding the gun, and then BM pushed VS onto the bonnet of an Opel with number plates CO 5486 KA which was parked nearby. As he was falling, V.S. managed to extricate himself from under B.M., while B.M. kept holding on to his gun with one of his hands, and holding the knife in the other. At the same time VS had both his hands on BM’s hand with which he was trying to take the gun out of the holster. BM had managed to take out the gun while VS held his hand – as a shot was fired and the bullet hit the metal wall of the building of Treger Café. The direction of that shot was to the side and away from the place of the incident, which means that this shot was not fired as a warning shot. After the shooting, because of the fear for his life which he had experienced, VS was in a state of extreme stress and he was not able to recollect the events in detail. The struggle between the two was observed by three witnesses: GD, GK and EK who were standing in front of the building at Otez Paisii No. 5 and who did not interfere. Their testimonies confirm that BM had stopped running and had started to wrestle with VS. However, because of the stress, the dim light and the speed of the events the witnesses cannot recall details about the manner in which BM was shot and the position of the two men’s bodies in relation to one another at the time of the shooting. From the appearance and the location of the gun wound on BM’s head and the gunshot hole found in the bonnet of Opel CO 5486 KA, it is evident that after the first shot was fired, VS had managed to regain possession of the gun and shoot him in the head at close range. After the shooting VS was in a state of shock: he dropped the gun on the ground, he was moving erratically, he was bending down to BM who was lying on the ground, he took the knife from BM’s hand and threw it onto the bonnet of Opel C 3034 ПХ. At this moment Chief Sergeant SM was in the town centre and he placed a call to VS’s mobile; VS told him that trouble had occurred and SM called the operator to dispatch support. KB, the operator on duty, sent a patrol vehicle and an ambulance. BM was taken to the hospital in Samokov where in spite of the medical assistance he passed away from a traumatic head injury followed by shock and coma that led to irreversible heart and lung failure. In his 20 years of service with the Ministry of Interior Chief Sergeant VS has never been disciplined; he was awarded four times. The man who was killed, BM, had committed a large number of offences. He has been registered for 12 thefts and two robberies. He was convicted five times for the following crimes: ....” Based on these findings, the investigator proposed to the prosecutor to discontinue the investigation since he considered that Chief Sergeant S had acted in self-defence within the meaning of Article 12a of the Criminal Code (see paragraph 42 below), which in his view meant that the acts of the police were not liable to prosecution. He further indicated that “even if there was no danger to the officer’s life, Chief Sergeant S was authorised to use a firearm in such circumstances, although he did not do so until his life was threatened”. 22. On 6 October 2004 the applicants’ counsel requested access to the investigation file. On 29 October 2004 a prosecutor from the Sofia military prosecutor’s office dismissed the request, on the grounds that at this stage the applicants were not participating in the criminal proceedings. 23. In a decree of the same day the prosecutor discontinued the criminal proceedings against Chief Sergeant S, stating that the officer had shot Mr Mihaylov but that this had not constituted an offence. In reaching his conclusion, the prosecutor found it established that, when running, Mr Mihaylov had been holding a mobile telephone in one hand and a knife in the other. At some point he had stopped abruptly, had turned around and had swung at the officer with the knife. When the officer had tried to knock away the knife, Mr Mihaylov had wrestled with him, tried to reach the officer’s handgun, and pushed him onto the bonnet of the car. A short struggle for the gun had followed and one shot had been fired accidentally. Following that, according to the prosecutor, the officer had managed to get hold of the gun and shoot Mr Mihaylov. As the victim had still been holding the knife, the police officer took it from his hands and threw it away. In the prosecutor’s view Mr Mihaylov attacked the officer in order to avoid arrest and also to help his accomplices, who at that time were running away with a cassette player stolen from the lorry. 24. On the basis of this account of the facts, the prosecutor reached the following conclusions. First, he concluded that Mr Mihaylov had attacked Chief Sergeant S. Secondly, the reaction of the police officer, who had shot Mr Mihaylov, had not been disproportionate to the attack. Chief Sergeant S had acted in self-defence against a much younger man who had been holding a knife. Because of the weak light and the speed of the events, the circumstances of the shooting and the position of the bodies could not be established. Thirdly, once Chief Sergeant S identified himself as a police officer and fired a warning shot he was entitled under Article 12a of the Criminal Code (see paragraph 42 below) to use force to arrest Mr Mihaylov, even if it had not been necessary to act in self-defence. The prosecutor also noted that Chief Sergeant S had never been disciplined but had been commended a number of times and that Mr Mihaylov had been known to the police and had been convicted five times. The fact that Mr Mihaylov held the knife in his left hand and that he must have used the same hand to grasp the gun of the officer, who was facing him, was not given attention. 25. In response to the applicants’ counsel’s appeal, by a decision of 13 December 2004 the Sofia Military Court quashed the prosecutor’s decree, finding that the prosecutor’s account of the events was based on arbitrary and contradictory assumptions rather than on established facts; the interviews of the witnesses had been formalistic and their statements were vague and contradictory. In particular, the prosecutor had failed to establish the number of shots fired, the position of the two bodies at the time of the fatal shooting, the trajectory of the bullet and the position of the victim’s head in relation to the barrel of the gun. The court also noted that the prosecutor had failed to give reasons for his conclusions regarding the applicability of the rules on self-defence or Article 12a of the Criminal Code (see paragraph 42 below). In view of those shortcomings the court remitted the case and instructed the prosecutor to re-interview the eyewitnesses; if possible, to find and interview other witnesses; to have prepared a medicalballistics report in order to establish, in particular, the position of the bodies and the trajectory of the bullet; and to organise a reconstruction of the events in order to verify the witnesses’ statements. 26. In execution of the court’s instructions, on 19 January 2005 the investigator commissioned a medical-ballistics report. The authors of the report made no mention of the bullet hole in the car bonnet and concluded that they could not determine the exact position of the two bodies at the time of the shooting. They found that at the moment of the shooting the gun was almost touching the back left side of Mr Mihaylov’s head, and that it had been pointing upwards and slightly to the right. 27. The investigator questioned Chief Sergeant S on 17 January 2005. Relying on his status as a witness, the sergeant refused to take part in a reconstruction, claiming that he had received threats from the Roma community in Samokov. On 11 August 2005 the investigator was discharged from the case for his failure to comply with the court’s directions and a new investigator was appointed. The new investigator questioned the three security guard eyewitnesses on 13 September and 20 September 2005 and he questioned Chief Sergeant S on 12 September 2005 and on 13 January and 1 February 2006. Chief Sergeant S maintained that he had acted in self-defence and in accordance with the rules governing the use of force. He was in shock and unable to remember the exact positions of himself and Mr Mihaylov when the latter was shot. 28. In a decree of 16 March 2006 the prosecutor discontinued the criminal proceedings on the grounds that the police officer had not committed an offence. The applicants again sought judicial review. In a decision of 13 June 2006 the Sofia Military Court quashed the prosecutor’s decree and remitted the case for further investigation. The court stated that the investigative authorities had failed to comply with the court’s previous directions and had thus obstructed the investigation. It noted again that the interviews of the witnesses had been formalistic, that their statements were contradictory and that the investigative authorities had failed to organise a reconstruction or confrontations in order to clarify the facts. The court noted that the forensic evidence suggested that at the moment of the shooting Mr Mihaylov had been facing the bonnet of the car. Also, the investigative authorities had never established the exact number of cartridges fired and the statements of Chief Sergeant S were inconsistent on this point. The court further noted that the experts who had carried out the medical-ballistics report had failed to discuss the bullet hole in the car bonnet. Furthermore, the investigative authorities had failed to inspect the knife and to analyse the circumstances surrounding its use or to inspect the mobile telephone and its whereabouts at the time of the events. 29. Following the remittal, the investigator re-questioned the security guards. They stated that they had only vague memories of the incident and refused to participate in a reconstruction. Chief Sergeant S again refused to give a further statement or to participate in a reconstruction. The fingerprint expert report on the knife of 26 July 2006 found no fingerprints suitable for examination. 30. On 13 October 2006 the applicants’ counsel examined the investigation file and requested the collection of additional evidence, namely that steps be taken to seek out other witnesses; that the certifying witnesses who had participated in the inspection of the crime scene early in the morning following the incident be questioned; that the two police officers be re-interviewed with a view to clarifying whether they had followed a preliminary plan for the arrest of Mr Mihaylov and his companions; that an additional medical-ballistics report be prepared to clarify the position of the bodies, in particular whether Mr Mihaylov had been neutralised at the moment of the fatal shooting, and the number of cartridges in the handgun as it had not been clear how many shots had been fired in total. She also demanded the inspection of the security camera, installed above the entrance of the building opposite the site of the shooting; a reconstruction of the events; and an identification by Mr Mihaylov’s family of the knife found at the scene. On 7 November 2006 these requests were rejected by the prosecutor on the grounds that they were aimed at delaying the proceedings. The prosecutor noted, inter alia, that any video recordings made by the camera belonging to the security firm would not qualify as evidence under the Criminal Procedure Act. 31. In a decree of 10 November 2006 the prosecutor discontinued the criminal proceedings since he considered that Chief Sergeant S had not committed an offence. In relation to the court’s instructions regarding further inquiries, the prosecutor stated that, despite efforts made, no other eyewitnesses had been identified; the inspection of the knife had not revealed any new evidence; it had been impossible to establish the owner of the mobile telephone; and that a reconstruction of the events would have been futile as Chief Sergeant S refused to take part owing to a justified fear of violence from the relatives of the victim and members of the Roma community. The prosecutor stated that when the fight had started Chief Sergeant S and Mr Mihaylov had fallen on the bonnet of the car. The prosecutor did not come to any conclusion as to whether Mr Mihaylov had been holding the knife when the fatal shot was fired, but noted only that at that moment the officer had been very afraid. The prosecutor reproduced the legal conclusions on the rules of self-defence under Article 12a of the Criminal Code, contained in the decree of 29 October 2004 (see paragraphs 23-24 above). Relying on unspecified information about injuries inflicted on Chief Sergeant S during earlier police operations, the prosecutor concluded that the latter should not be punished because he had acted in a state of acute fear. 32. The applicants challenged the decree, claiming, inter alia, that the authorities, influenced by their prejudice towards Roma, had conducted only a formalistic investigation. In a decision of 22 November 2006 the Sofia Military Court quashed the decree and remitted the case to the prosecutor. It held that the investigative authorities had failed to comply with the instructions given by the court in previous decisions and that they had intentionally protracted the investigation and failed to employ any meaningful efforts to establish the truth. The court noted, inter alia, that the exact circumstances of the fight and the shooting had not been established; that no reconstruction had been organised and no valid reasons given for this omission; and that the authorities had also failed to conduct confrontations, inspections of the knife and the mobile telephone or to order an additional medical-ballistics report. 33. Following the remittal by the Sofia Military Court, on 16 March 2007 the investigator arranged for an inspection of the knife, but this failed to determine whether the blade had been open or closed at the time of the shooting. A further medical-ballistics report, dated 27 March 2007, made no reference to the bullet hole in the bonnet of the car and concluded that it was impossible to establish the exact position of the bodies at the time of the shooting. The investigator also requested Chief Sergeant S to take part in confrontations with GD and GK, and a reconstruction, but the Chief Sergeant refused to participate. 34. On 21 April 2007 the applicants’ counsel repeated her earlier requests for additional investigative measures. In a decree of 31 May 2007 the prosecutor again discontinued the criminal proceedings. He repeated verbatim the reasoning given in the decree of 10 November 2006, but added as an additional ground that Chief Sergeant S had been suffering from fear and confusion and that in these circumstances, as a matter of domestic law, there had been no excess of force. The applicants sought judicial review. In a decision of 27 June 2007 the Sofia Military Court quashed the prosecutor’s decree and remitted the case for further investigation. The court stated that despite the numerous remittals the prosecutor had repeatedly failed to comply with the court’s instructions and that the actions of the authorities and the measures employed had been a parody of an investigation, revealing unwillingness to collect the evidence and establish the truth. 35. Following the remittal the investigator questioned the three security guards, Chief Sergeant M and two additional witnesses, as requested by the applicants. During the interview of GD on 18 October 2007, the investigator in one question referred to Mr Mihaylov as “the gypsy”. On 5 December 2007 the investigator organised a reconstruction of the events. Chief Sergeant S did not take part, relying on his capacity as a witness. A further ballistics report dated 14 December 2007 found, in particular, that on the basis of photographs it had not been possible to establish the morphology, character and orientation of the bullet hole and thus the exact position of the bodies at the time of the shooting. Meanwhile, it appears that around this time the prosecutor in charge of the investigation stated that he disagreed with the court’s instructions and requested to be allowed to withdraw from the case. It appears that this request was not granted, as he continued working on the case. 36. In a decree of 9 January 2008 the prosecutor discontinued the criminal proceedings finding, as before, that the police officer had shot Mr Mihaylov to defend himself from the latter’s attack and that the use of force had, in any case, been justified under Article 12a of the Criminal Code (see paragraph 42 below) once the police officer had asked Mr Mihaylov to stop and had fired a warning shot. The prosecutor noted, in support of his finding of self-defence, that an offender with a criminal record had attempted to attack a police officer, who had never been disciplined and who had received awards. The applicants sought judicial review, contending, inter alia, that the authorities had not bothered to carry out an effective investigation because of Mr Mihaylov’s ethnicity and low social status. The Sofia Military Court upheld the prosecutor’s decree. Upon the appeal of the applicants, in a decision of 22 July 2008, the Military Court of Appeal set aside the lower court’s decision. The Court of Appeal raised serious doubts in respect of the prosecutor’s impartiality. It further noted the prosecutor’s failure to establish who had fired the fatal shot and in what circumstances. The court also held that on the basis of the evidence collected, namely the eyewitnesses’ testimony that the shooting had taken place on the car’s bonnet and the conclusions of the medical-ballistics report about the channel of the wound, it was clear that at the moment of the lethal shooting Mr Mihaylov had been facing the bonnet of the car and the police officer had fired from behind. Thus the court found that immediately before the shooting the police officer had had full control over the victim, the use of force had not been necessary and there was sufficient evidence that the police officer had intentionally killed Mr Mihaylov. The court remitted the case, instructing the prosecutor to bring charges against the sergeant for murder as well as to discharge anybody who had demonstrated partiality from working on the case. 37. On 1 December 2008 a newly-appointed prosecutor laid charges against Chief Sergeant S for causing death as a result of a disproportionate reaction to an attack. However, two weeks later, in a decree of 15 December 2008, the prosecutor discontinued the criminal proceedings against Chief Sergeant S, using almost identical reasoning to that in the decree of 9 January 2008, with some additional findings, some of which appeared contradictory. For example, at one point in the decree the prosecutor found that Mr Mihaylov had dropped the knife before he had reached for the sergeant’s handgun, but subsequently he found that Mr Mihaylov had dropped the knife at the moment the fatal shot was fired. The prosecutor also referred to the police officer’s fear of knives as justification for using force. Chief Sergeant S had claimed in his testimony of 12 September 2005 that he had developed a fear of knives after he was stabbed while making another arrest a year before the incident with Mr Mihaylov. No assessment of the police officer’s psychological condition or his fitness to perform his duties at the material time was mentioned in the decree. In the report, the prosecutor advanced three different justifications for the use of force, namely, the justified use of force to make an arrest; self-defence; and the excessive use of force due to fear. No attempt was made to reconcile these three theories. 38. The applicants sought judicial review. In a decision of 14 January 2009 the Sofia Military Court quashed the prosecutor’s decree and remitted the case for further investigation. The court considered ill-founded the prosecutor’s conclusions that Mr Mihaylov had been holding a knife when he had turned to the sergeant and that at the beginning of the fight Mr Mihaylov had pushed the sergeant onto the bonnet of the car. The court found that the officer had had full control over Mr Mihaylov and that the use of force had been excessive. The court also noted the failure of the investigative authorities to comply with previous judicial directions. 39. Following the remittal, the prosecutor interviewed two witnesses who stated that Chief Sergeant S had been injured before, in 1997 and 2003, during police operations. In a decree of 8 June 2009 the prosecutor again discontinued the criminal proceedings. This time the prosecutor maintained that Mr Mihaylov had dropped the knife before reaching for the handgun. He further held that the fight had taken place next to the car and not on its bonnet and that Mr Mihaylov had fallen on the bonnet after he had been shot. Following an appeal by the applicants, on 7 July 2009 the Sofia Military Court quashed the prosecutor’s decree and again remitted the case for further investigation. Chief Sergeant S appealed against the decision. In his appeal he did not claim to have acted in self-defence but instead claimed that it had been an accidental killing, falling under Article 15 of the Criminal Code. The prosecutor also challenged the decision. His appeal was rejected in a decision of the Military Court of Appeal on 22 July 2008. In a decree of 13 October 2009 the prosecutor discontinued the proceedings for the eighth time, stating that Mr Mihaylov had been holding a knife when he attacked the officer and that he had pushed the officer onto the bonnet of the car, dropping the knife and reaching for the handgun, and that after the shooting the officer had taken the knife and had thrown it away. The applicants sought judicial review. By a decision of 6 November 2009 the court granted the appeal and remitted the case, finding that the court’s earlier instructions had not been complied with, that no additional investigation had been conducted, and that the prosecutor had based his conclusions on contradictory facts. 40. Chief Sergeant S challenged the court’s decision before the Military Court of Appeal and reiterated his claim that the shooting had been an accident. By a final decision of 17 December 2009 the Military Court of Appeal quashed the lower court’s decision and upheld the prosecutor’s decree. The court endorsed the conclusions of the prosecutor on the facts. It found that the police officer had been faced with a real and imminent attack by the victim which was not interrupted until the two shots were fired. The police officer had acted in self-defence and had not, therefore, committed an offence. | 1 |
test | 001-169468 | ENG | ROU | CHAMBER | 2,016 | CASE OF S.C. FIERCOLECT IMPEX S.R.L. v. ROMANIA | 3 | Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property) | Branko Lubarda;Carlo Ranzoni;Iulia Motoc;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits | 4. The applicant, S.C. Fiercolect Impex S.R.L., was a Romanian limited liability company, with a registered office in Cluj-Napoca. 5. On 7 March 2002 the Cluj Prefecture issued the applicant company with an operating permit, which was valid until 7 March 2005. The applicant company was required to apply for an extension of the permit if the initial conditions of operation did not change. Its main activity consisted in collecting and recycling scrap iron. 6. Under Article 5 of Order no. 265/2001 (see paragraph 28 below) an application for extension of the operating permit had to be submitted at least thirty days prior to the expiry of the previous permit. As the applicant company’s permit was due to expire on 7 March 2005, on 4 January 2005 it applied for an extension of the existing permit. 7. The applicant company also applied to the Regional Environment Agency (“REA”) for an environmental permit, which according to the law had to accompany the application for extension of the operating permit. 8. REA registered the applicant company’s application but refused to accept the accompanying documents on the grounds that on 20 December 2004 a new order providing for the authorisation of activities with a significant impact on the environment had been adopted and the guidelines for implementing the new order had not yet been published. 9. The relevant guidelines were published on 11 January 2005. 10. In a letter of 25 January 2005, REA informed the applicant company that under the new Order no. 876/2004, its activity was considered to have a significant impact on the environment and that it should therefore follow the authorisation procedure set out in that order. The applicant company was invited to submit new supporting documents within thirty days. 11. The applicant company submitted the requested documents on 27 January 2005. 12. A new environmental permit was issued on 24 March 2005. On 14 April 2005 the prefecture issued a new operating permit. 13. Between 7 March and 14 April 2005 the applicant company continued to carry out its activity. 14. Following an inspection carried out at the applicant company’s headquarters, on 6 May 2005 the Cluj Finance Inspectorate (Garda Financiară Cluj) fined the company ROL 25,000,000 (approximately 694 euros) and ordered the confiscation of ROL 768,471,700 (approximately EUR 21,347), representing the market value of the scrap iron collected for recycling between 8 March and 14 April 2005. The finance inspectorate based its decision (proces-verbal de constatare şi sancţionare a contravenţiilor) against the applicant company on Article 13 (a) of Emergency Government Ordinance no. 16/2001. 15. The applicant company lodged a complaint against the decision of the Cluj Finance Inspectorate, claiming that the competent authorities were responsible for the delay in issuing the operation permit. In this connection, it argued that the application for an extension of the operating permit had been lodged in good time, namely on 4 January 2005. 16. On 2 August 2005 the Cluj-Napoca District Court dismissed the complaint as unfounded. It noted that the decision of 6 May 2005 was in accordance with Article 17 of Government Ordinance no. 2/2001. It also noted that the applicant company had continued to carry out its activity despite the fact that its operating permit had expired on 7 March 2005; it had therefore infringed Article 7 § 1 in conjunction with Article 13 (a) of Emergency Government Ordinance no. 16/2001. The court dismissed the applicant company’s claim that liability for its situation lay with the authorities for failing to issue its environmental and operating permits in time, holding that such a claim would be relevant only within the framework of a tort action and could not be raised as a reason for exonerating a company that had committed an administrative offence. 17. The applicant company appealed. On 2 December 2005 the Cluj County Court dismissed the appeal, upholding the decision of the firstinstance court on the same grounds. 18. The applicant company brought administrative proceedings against REA, seeking to recover the damages incurred as a result of the late issuing of the environmental permit. It based its action on Law no. 554/2004. It claimed that because of the amendment to the legislation concerning the procedure for issuing permits, the competent authority had not issued its permit in due time. It pointed out that even after the publication of the guidelines for the application of the new order on 11 January 2005, REA had not acted effectively, as it had not written to the applicant company until 25 January 2005. Moreover, REA had interpreted the applicant company’s application as a request for a new permit instead of for an extension of the existing permits, given that the operation conditions had not changed. That had further delayed the authorisation procedure. 19. On 10 March 2006 the Cluj County Court dismissed the action as premature, holding that the applicant company had not followed the prior procedure required by law before lodging an action with the court. 20. The applicant company lodged an appeal, claiming that the dismissal of its action as premature had been unjustified given that the defendant agency had already submitted its observations on the merits. 21. On 31 May 2006 the Cluj Court of Appeal allowed the applicant company’s appeal. It quashed the first-instance judgment and remitted the case to the first-instance court for examination on the merits. 22. On 15 September 2006 the Cluj County Court dismissed the applicant company’s action. It held that the applicant company had not complied with the obligation to lodge an application for a new environmental permit forty-five days prior to the expiry of the existing permit, as provided for by Article 16 of the new order regulating the procedure for obtaining an environmental permit, namely Order no. 876/2004. It noted that the previous order, no. 265/2001, had provided only for the obligation to obtain an environmental permit, without establishing the procedure to be followed in that respect. It concluded that the competent agency had issued the environmental permit within the ninetyday deadline provided for by the new order and could not therefore be held liable for the damages incurred by the applicant company. 23. The applicant company lodged an appeal on points of law, pointing out that on 4 January 2005 when it had lodged its application for an extension of the operating permit, the guidelines for implementation of the new order had not yet been published. It also claimed that it had been unable to apply for a new permit forty-five days prior to the expiry of its existing environmental permit on 31 January 2005, as the new order had entered into force on 20 December 2004 and the relevant guidelines had not been published until 11 January 2005. The applicant company also complained that the first-instance court had interpreted Article 16 of Order no. 876/2004 to mean that the administrative authority had the option of extending the existing permit if the operating conditions had not changed, instead of an obligation to extend the permit. In this connection, the applicant company pointed out that, like the previous order, the new order provided for the ope legis extension of an existing permit for up to five years if the company’s operating conditions had not changed. It also pointed out that at the time of lodging its application for a new permit on 4 January 2005, the applicable law was Order no. 265/2001, which provided for a time-limit of thirty days for the issuance or renewal of an operating permit. 24. On 8 February 2007 the Cluj Court of Appeal dismissed the applicant company’s appeal on points of law, upholding the firstinstance judgment. It held that the law applicable to the applicant company was Order no. 876/2004, which had entered in force before the expiry of the applicant company’s environmental permit. It concluded that even assuming that the administrative authorities were liable for non-compliance with the applicable legislation, the applicant company had had no right to continue an illicit activity in the absence of the authorisation required by law. The applicant company should have suspended its activity until it had obtained the necessary permits and should then have brought proceedings seeking to recover any damages – as long as it could prove the existence and extent of such damages. 25. Following a request lodged by the sole shareholder of the applicant company on 10 February 2010, the National Chamber of Commerce took note of the voluntary dissolution of the company. 26. In January 2013, before the Court had communicated the applicant company’s complaints to the respondent Government, the administrator and sole shareholder, Mr Teodor Morar, informed the Court of the company’s dissolution on 24 February 2010 and his intention to continue the procedure initiated before the Court by the applicant company. | 0 |
test | 001-169523 | ENG | LVA | COMMITTEE | 2,016 | CASE OF RAKUZOVS v. LATVIA | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Erik Møse;Mārtiņš Mits;Yonko Grozev | 4. The applicant was born in 1984. He is currently serving a prison sentence in Valmiera. 5. On several occasions between 2009 and 2011 the applicant was escorted to court hearings from various detention facilities where he was being held. During these transfers the applicant was subjected to strip-searches. According to the applicant, he was ordered to strip naked in the presence of other inmates and escorting officers, to assume embarrassing positions (squatting), and to submit to a visual inspection of his body. 6. The strip-searches of the applicant were carried out on 9 December 2009, 8 and 11 June 2010, 22 February and 8 June 2011. 7. The applicant lodged several applications with the administrative courts concerning the strip-searches. They were all joined in one set of administrative proceedings (no. A420533911). 8. On 20 June 2012 the Administrative District Court (Administratīvā rajona tiesa) dismissed the applicant’s complaints and terminated the proceedings. It held that the strip-searches had been objectively justified on security grounds and the manner in which they had been conducted had not gone beyond what had been required to ensure the efficacy of those searches. Therefore these searches had not “significantly interfere[d]” with the applicant’s rights and had not constituted an “action of a public authority” (see paragraphs 17 and 18 below). The applicant appealed. 9. On 13 September 2012 the Administrative Regional Court (Administratīvā apgabaltiesa) dismissed the applicant’s appeal and upheld the ruling of the lower court. 10. On 5 November 2012 the Senate of the Supreme Court (Augstākās tiesas Senāts) quashed the ruling of the appeal court and remitted the case to the first-instance court. The Senate of the Supreme Court found that the strip-searches had had a legitimate goal, namely ensuring public safety, and had not been carried out in an abusive manner. However, the lower courts had not sufficiently addressed the applicant’s argument that he had been subjected to strip-searches in the presence of other persons. 11. On 27 February and 11 April 2013 hearings took place before the first-instance court. In order to clarify the facts eleven witnesses – seven escorting officers and four prisoners – were called. 12. On 13 May 2013 the Administrative District Court dismissed the applicant’s complaints and terminated the proceedings. 13. As concerns the strip-searches carried out on 9 December 2009, 8 and 11 June 2010, the court, on the basis of witness testimony, found that the applicant had been searched in the presence of one inmate and at least one additional escorting officer. However, taking into account that the applicant had not voiced any concerns in this regard during the first round of proceedings, the court concluded that “the strip-searches ... had not humiliated the applicant in the eyes of others or in his [own] eyes”. Accordingly, the court could not establish a “significant violation” of the human rights guaranteed under Article 95 of the Constitution and Article 3 of the Convention. 14. As concerns the strip-searches carried out on 22 February and 8 June 2011, the court found that the evidence did not support the applicant’s allegation that he had been searched in the presence of other persons. The court dismissed the applicant’s further allegations (the presence of female officers, being exposed to the court’s staff and passers-by, unsanitary touching of his food) as unsubstantiated. 15. On 9 July 2013 the Senate of the Supreme Court, by a final decision, dismissed the applicant’s appeal and upheld the ruling of the lower court. | 0 |
test | 001-155717 | ENG | CHE | CHAMBER | 2,015 | CASE OF A.S. v. SWITZERLAND | 3 | No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Italy);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Positive obligations;Article 8-1 - Respect for family life) (Conditional) (Italy) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens | 5. The applicant is a Syrian national of Kurdish origin. He was born in 1988 and currently lives in Geneva. On an unknown date he entered Swizerland from Italy, where he had arrived also on an unknown date. On 18 February 2013 he sought asylum in Switzerland. 6. On 8 May 2013 the Federal Office of Migration (the “FOM”) rejected the applicant’s asylum request on the basis of the fact that his fingerprints had already been registered in EURODAC, in Greece, on 16 August 2012, and in Italy, on 21 January 2013. Furthermore, the Italian authorities had accepted the Swiss authorities’ request of 17 April 2013 to take the applicant back into their territory by virtue of Article 10 § 1 of Regulation no. 343/2003/EC (the “Dublin Regulation”). The FOM further ruled that the applicant’s two sisters, who were living in Switzerland respectively since 2006 and January 2012, did not fall under the category of “family members” as provided in Article 2 (i) of the Dublin Regulation. Regarding the back problems alleged by the applicant, it considered that Italy was obliged to grant him access to medical treatment and that nothing indicated that those health problems impeded the transfer of the applicant to Italy. 7. The applicant appealed against the FOM’s decision to the Federal Administrative Court (the “FAC”). He maintained that he had fled his home country Syria because he had been persecuted, detained and tortured there. As established by medical certificates, he had been diagnosed with severe post-traumatic stress disorder, for which he was receiving medical treatment. He was also receiving medical treatment for his back problems. He claimed that the FOM’s decision was in breach of Article 10 § 1 of the Dublin Regulation because Greece was the first member State he had entered less than twelve months before. Thus it was the Greek authorities which were theoretically responsible for examining his asylum request. It could not, however, be derived from the fact that he could not be returned to Greece as established in M.S.S. v. Belgium and Greece ([GC] no. 30696/09, ECHR 2011) that Switzerland could return him to Italy. Therefore, the Swiss authorities’ request for his return to Italy was in breach of the law because they had known that the Italian authorities were not competent in that matter, and Italy had erroneously accepted the request. According to the applicant, the FOM’s decision also violated Article 15 § 2 of the Dublin Regulation which provided that persons who were dependent on relatives who were residing in a member State should be kept together with them. In this regard he established that two of his older sisters were legally residing in Switzerland with their families. He claimed that owing to the presence of his sisters he had regained a certain emotional stability in his life. His expulsion to Italy, where he had no family member to care for him, would therefore aggravate his mental health problems in such a way that he would be at risk of irreparable harm contrary to Articles 3 and 8 of the Convention. 8. On 13 June 2013 the FAC dismissed the applicant’s appeal. It ruled that according to the Dublin Regulation the applicant had to return to Italy, whose authorities had, prior to accepting the Swiss request for return, been informed by Switzerland that the applicant had first entered the “Dublin area” in Greece. Furthermore, the FAC considered that in view of the dates of arrival in the respective countries it could not be excluded that on leaving Greece the applicant had left the “Dublin area” before entering Italy. Furthermore, it established that the applicant was not so severely ill that he was dependent on the assistance of his sisters. Therefore, Article 15 § 2 of the Dublin Regulation was not applicable in his case and neither was Article 8 of the Convention. Moreover, the FAC held that with regard to the asylum procedure and the availability of medical treatment for asylum seekers it had not been established that there were structural deficiencies in the Italian reception system and that Italy failed to respect its international obligations in respect of asylum seekers and refugees. Therefore, nothing indicated that the applicant would suffer treatment contrary to Article 3 of the Convention in the event of expulsion to Italy. Finally, the FAC stated that it was up to the Swiss authorities to inform their Italian counterparts about the applicant’s health problems when they were executing the expulsion. 9. Before this Court the applicant produced in particular a medical report dated 6 June 2013 establishing that, as a result of trauma allegedly suffered in detention in Syria, he had back problems and showed severe symptoms of post-traumatic stress disorder. As a result, the applicant was put on a course of twice monthly psychotherapy sessions with a general practitioner and was prescribeda daily dose of Sertraline, an anti-depressant, as well as sleeping pills (Zolpidem) and pain-killers for his back (Tilur). The report also stated that in the absence of medical treatment the applicant’s health status would deteriorate quickly and put him at a high risk of alcohol or drug abuse as well as suicide. The risk of suicide would be greater should the applicant be returned to his country of origin. Moreover, according to the report, the involvment of the applicant’s sisters was “an absolute necessity” (absolument nécessaire) for him to gain some emotional stability in order to overcome the multiple traumas suffered. Upon the recommendation of his doctor, the applicant was allocated an individual apartment unit for asylum seekers. The applicant also submitted his sisters’ declarations, according to which he was virtually spending the whole time with their families, he was in great emotional need, could not be left alone and spent only the nights alone in his apartment. They added that they were willing and able to provide him with emotional support so that he could recover from his trauma. | 0 |
test | 001-173477 | ENG | RUS | COMMITTEE | 2,017 | CASE OF ZIMONIN 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) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicants are Russian nationals. They were owners of flats in Moscow. The State authorities reclaimed the flats, and the applicants’ title to the real property in question was annulled. 5. The flat at 21-110 Belovezhskaya Ulitsa, Moscow, was owned by K. On 5 January 2005 K. died intestate with no surviving kin. 6. On 18 May 2005 M. bought the flat from a person acting on K.’s behalf by virtue of a power of attorney. 7. On 28 October 2005 M. sold the flat to O. 8. On 7 April 2006 O. sold the flat to V. 9. On 19 April 2006 V. sold the flat to the applicant and his minor daughter. 10. On an unspecified date the police opened an investigation into the fraudulent sale of the flat after K.’s death. On 30 January 2008 the police informed the Moscow Department of Housing Policy and Housing Fund (the Housing Department) about the investigation. 11. On an unspecified date the Housing Department brought an action against the applicant seeking the transfer of the title to the flat to the City of Moscow and the applicant’s eviction. 12. On 18 December 2012 the Kuntsevskiy District Court of Moscow granted the Housing Department’s claims in full. The court established that K. had died intestate with no surviving kin and that the flat should have been considered bona vacantia. It considered all the transactions with the flat to be void and ordered the transfer of the title to the flat to the City of Moscow and the applicant’s eviction. 13. On 14 March 2013 the City Court upheld the judgment of 18 December 2012 on appeal. 14. On 16 May 2013 the City Court refused to allow the applicants’ cassation appeal. 15. On 14 August 2013 the Supreme Court of the Russian Federation refused to allow the applicants’ second cassation appeal. 16. On 24 December 2013 the City of Moscow had its title to the flat registered. 17. According to the Government, on 2 December 2014 the Housing Department entered into a social housing agreement with the applicant and his daughter who continued to reside in the flat. 18. The flat at 10-1-339, Orekhoviy Bulvar, Moscow, was owned by S. On 29 July 2009 S. died intestate with no surviving kin. 19. On 16 April 2010 an unidentified person sold the flat to B. 20. On 10 June 2010 B. sold the flat to K., the applicant’s father. 21. On 15 April 2011 the Nagatinskiy District Court of Moscow approved a friendly settlement agreement between the applicant and her father recognising the applicant’s title to the flat. 22. On 21 October 2011 the police opened an investigation into the fraudulent sale of the flat after S.’s death. On 29 February 2012 the police informed the Housing Department about the investigation. 23. On an unspecified date the Housing Department brought a civil action against the applicant seeking the transfer of the title to the flat to the City of Moscow and the applicant’s eviction. 24. On 19 June 2013 the District Court granted the Housing Department’s claims in full. The court established that S. had died intestate with no surviving kin and that the flat should have been considered bona vacantia. The court ruled that the case 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 previous owner who had been deprived of the property against his or her will. The applicant’s title to the flat was annulled and the title was transferred to the City of Moscow. 25. On 14 November 2013 the City Court upheld the judgment of 19 June 2013 on appeal. 26. On 25 March 2014 the City Court refused to allow the applicant’s cassation appeal. 27. According to the applicant, the judgment in the City’s favour has not been enforced and the applicant continues to reside in the flat. 28. The flat at 33-31, Stremyanniy Pereulok, Moscow, had been owned by N., who died intestate with no surviving kin on 14 April 2006. 29. On an unspecified date P. and other unidentified persons forged N.’s will, naming P. as N.’s heir. 30. On 19 October 2006 P. applied to a notary seeking to be recognised as N.’s heir. On 30 November 2006 the notary issued a certificate confirming that P. had inherited N.’s flat. 31. On 6 December 2006 the Moscow City Registration Board (the “Registration Board”) registered the certificate confirming P.’s title to the flat and issued the relevant deed. 32. On 30 January 2007 P. sold the flat to the first applicant. 33. On 6 February 2007 the Registration Board registered the flat purchase and issued the respective deed to the first applicant. The applicants moved into the flat and resided there. 34. On an unspecified date the authorities opened a criminal investigation concerning the forgery of the will issued on behalf of N. 35. On 26 April 2012 the Perovskiy District Court of Moscow found P. guilty of several counts of fraud and sentenced him to five and a half years’ imprisonment. In particular, the court established that P., acting in concert with other persons whose identity was not known, had fraudulently acquired N.’s flat and sold it to the first applicant on the basis of a forged will. The court also found that the flat was bona vacantia which therefore vested in the State and, by having fraudulently acquired title to it and then sold it to the first applicant, P. had caused damage to the State. 36. On 25 June 2012 the Moscow City Court upheld the judgment of 26 April 2012 on appeal. 37. On 25 March 2013 the Housing Department brought a civil action against the applicants seeking, inter alia, (1) revocation of the first applicant’s title to the flat; (2) the applicants’ eviction; and (3) restitution of the flat to the City of Moscow. 38. On 26 May 2014 the Zamoskvoretskiy District Court of Moscow granted the Housing Department’s claims. It established that the flat was bona vacantia and ordered its restitution to the City of Moscow. It also revoked the first applicant’s title to the flat and ordered the applicants’ eviction. 39. On 26 December 2014 the City Court upheld the judgment of 26 May 2014 on appeal. 40. On 17 March 2015 the Moscow City Court refused to allow the applicants’ cassation appeal. 41. On 17 April 2015 the Supreme Court of the Russian Federation refused to allow the applicants’ cassation appeal. 42. It appears that the judgment in the City’s favour has not been enforced to date. The applicants continue to reside in the flat. | 1 |
test | 001-164658 | ENG | RUS | COMMITTEE | 2,016 | CASE OF PARCHIYEV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 5. All the applicants were party to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became final but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix). | 1 |
test | 001-159043 | ENG | RUS | COMMITTEE | 2,015 | CASE OF KULYUK AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations;Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 5. The applicants are pensioners. On various dates they successfully sued the authorities for miscalculating and adjustment of their pensions. The judgments became final. 6. On various dates the Presidia of Regional Courts or the Supreme Court of Russian Federation allowed the defendant authorities’ applications for supervisory review and quashed the judgments delivered in the applicants’ favour, considering that the lower courts misapplied the material law. 7. Some of the judgments remained unenforced or partially enforced until the date of their quashing or were enforced with delay. | 1 |
test | 001-152247 | ENG | FIN | CHAMBER | 2,015 | CASE OF BOMAN 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;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1992 and lives in Jomala. 6. On 26 March 2010 the applicant was charged with, inter alia, causing a serious traffic hazard (törkeä liikenneturvallisuuden vaarantaminen, grovt äventyrande av trafiksäkerheten) and operating a vehicle without a licence (ajoneuvon kuljettaminen oikeudetta, olovlig körning), both acts having been committed on 5 February 2010. The prosecutor requested that, in relation to the charge of causing a serious traffic hazard, a driving ban be imposed. 7. On 22 April 2010 the District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged and sentenced him to 75 day-fines, amounting to 450 euros (EUR). A driving ban was also imposed until 4 September 2010 on the basis of section 44 of the Driving Licence Act of the Province of Åland. 8. No appeal was made against the judgment and it became final. 9. On 28 May 2010 the police imposed a new driving ban on the applicant from 5 September to 4 November 2010 on the basis of section 46 §§ 1 (c) and 3 of the Driving Licence Act of the Province of Åland. In their decision the police referred to the fact that on 5 February 2010 the applicant had been driving a vehicle without a licence and that the District Court had convicted him for this by final judgment on 22 April 2010. 10. By letter dated 22 June 2010 the applicant appealed to the Åland Administrative Court (hallinto-oikeus, förvaltningsdomstolen), claiming that he had been tried and convicted twice in the same matter. He referred to Article 4 of Protocol No. 7 to the Convention. 11. On 20 July 2010 the Åland Administrative Court rejected the applicant’s appeal and upheld the driving ban. The court found that the District Court had imposed the driving ban for causing a serious traffic hazard whereas the police had imposed it for operating a vehicle without a licence. Therefore, the applicant was not punished twice for the same offence and his rights protected by Article 4 of Protocol No. 7 to the Convention were not violated. 12. By letter dated 12 August 2010 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court. He stressed that both the criminal and the administrative proceedings had related to the same facts which had taken place on 5 February 2010. 13. On 19 January 2011 the Supreme Administrative Court upheld the Administrative Court’s decision. It found that the District Court had imposed the driving ban for causing a serious traffic hazard whereas the police had imposed it for operating a vehicle without a licence. Article 4 of Protocol No. 7 to the Convention had therefore not been violated. The decision was not unanimous and one of the judges expressed a dissenting opinion. In her opinion, it was not to be ruled out that a driving ban constituted a criminal sanction. Referring to the case Zolotukhin v. Russia, she considered that after the applicant’s final conviction by the District Court, a new driving ban based on the same facts on the basis of which he had already been convicted could no longer be imposed. Therefore, she would have quashed the police decision as well as the Administrative Court’s decision. | 0 |
test | 001-148633 | ENG | UKR | COMMITTEE | 2,014 | CASE OF PANKRATYEV v. UKRAINE | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Aleš Pejchal;Helena Jäderblom | 4. The applicant was born in 1984. 5. On 15 October 2009 he was arrested by the Darnytskyy District Police Department of Kyiv on suspicion of having committed a robbery in aggravated circumstances. On the same day he was charged with that crime. 6. On 16 October 2009 the Darnytskyy District Court of Kyiv (“the Darnytskyy Court”) ordered the applicant’s pre-trial detention for two months. 7. On 10 November 2009 the applicant was also charged with murder. 8. On 10 December 2009 the Darnytskyy Court extended the applicant’s pre-trial detention to three months, namely to 15 January 2010. 9. On 13 January 2010 the Darnytskyy Court extended the applicant’s pre-trial detention to four months, namely to 15 February 2010. 10. On 13 February 2010 the case was referred to the Kyiv Court of Appeal for consideration on the merits. 11. On 15 March 2010 the Kyiv Court of Appeal held a preliminary hearing in the case and ordered, inter alia, that the preventive measure in respect of the applicant should be left unchanged. 12. On 14 April 2011 the Kyiv Court of Appeal found the applicant guilty of robbery and murder. It convicted him to fourteen years’ imprisonment and ordered the confiscation of his property. 13. On 13 September 2011 the Higher Specialised Court for Civil and Criminal Matters quashed the judgment and remitted the case for a fresh trial. 14. On 24 December 2013 the applicant was found guilty of robbery and murder and sentenced to twelve years’ imprisonment. The court also ordered the confiscation of the applicant’s property. 15. The applicant lodged an appeal. No further information was provided. | 1 |
test | 001-166682 | ENG | TUR | CHAMBER | 2,016 | CASE OF SEMİR GÜZEL v. TURKEY | 3 | Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković | 4. The applicant was born in 1968 and lives in Diyarbakır. 5. At the time of the events in question the applicant was the vicepresident of HAK-PAR (Hak ve Özgürlükler Partisi – the Rights and Freedoms Party). 6. On 4 January 2004 the party held its first ordinary congress at a restaurant in Ankara, where the applicant was elected by the delegates to act as the meeting’s chairman. 7. On 28 February 2005 a public prosecutor at the Ankara public prosecutor’s office filed an indictment with the Ankara Criminal Court of First Instance against thirteen members of HAK-PAR, including the applicant, for acting in violation of section 81 (c) of Law no. 2820 during the congress on the grounds, inter alia, that there had been banners in Kurdish and that most of the speeches given by the delegates had been in Kurdish. 8. The applicant acknowledged before the first-instance court that he had not intervened as the chairman when certain delegates had spoken in Kurdish. In this connection, he submitted that, as a founder member of HAKPAR, he believed that Kurdish should be used in all areas of life; that those who spoke Kurdish were speaking in their mother tongue; and that he believed that it was neither legal nor ethical for him to intervene to force people to speak in a language other than their mother tongue. He maintained that such speeches could not have constituted an offence, when taking into account laws that had been enacted in compliance with the conditions for membership of the European Union, and the provisions of the European Convention on Human Rights. In this connection, the applicant also submitted that the relevant provisions of Law no. 2820 were contrary to the Constitution. 9. On 7 December 2005 the first-instance court dismissed an application from the defendants to suspend the proceedings and transfer the case to the Constitutional Court for examination of the compatibility of the relevant provisions with the Constitution. 10. On 14 February 2007 the Ankara Criminal Court of First Instance convicted the applicant of the charges. In particular, the court considered that the applicant had, despite warnings from a government superintendent present at the congress, continued to allow certain delegates to give their speeches in Kurdish, in breach of section 81 (c) of Law no. 2820. The applicant was sentenced to one year’s imprisonment. 11. On 23 March 2011 the Court of Cassation quashed the judgment of the first-instance court on the ground that the latter had failed to give any consideration to whether the conditions for suspending the delivery of the judgment against the defendants, pursuant to Article 231 of the Code of Criminal Procedure, had been met. 12. On 6 December 2011 the Ankara Criminal Court of First Instance ordered that the criminal proceedings against the applicant and the other defendants be terminated, on the ground that the statutory time-limit prescribed under domestic law had expired. | 1 |
test | 001-184649 | ENG | GEO | CHAMBER | 2,018 | CASE OF SARISHVILI-BOLKVADZE v. GEORGIA | 3 | Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect) | André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1950 and lives in Batumi. 6. On 16 February 2004 the applicant’s son, G.B., fell off a crane while fixing electric cables. He was admitted to the intensive care unit of Batumi Hospital No. 1 (“the hospital”). His injuries included a fractured skull and brain damage. 7. On 28 February 2004 doctors observed that G.B. had gastrointestinal bleeding and he was given the relevant treatment. On 5 March 2004 he was transferred to a general medical ward as there had been an improvement in his condition. 8. On 6 March 2004 G.B.’s state of health deteriorated and he was transferred back to the intensive care unit because of a bleeding duodenal ulcer. Urgent surgery was performed on 10 March 2004 to stop the bleeding, but he died on 14 March 2004. 9. It appears from the criminal case files that the applicant refused to allow an autopsy of G.B.’s body. 10. On 17 February 2004 the hospital informed the Batumi police that G.B. had been admitted with traumatic injuries. An investigator visited the hospital but was unable to question him in view of his state of health. 11. On 24 March 2004 the investigator returned to the hospital to enquire about the incident of 16 February 2004 (see paragraph 6 above) and was informed that the applicant’s son had died. An investigation was launched into G.B.’s death and the applicant was questioned the following day. 12. On 2 April 2004 the investigator ordered an examination by a panel of experts of the Forensic Bureau under the Ministry of Labour, Health and Social Affairs (“the forensic bureau”) of the Ajarian Autonomous Republic (“AAR”) in order to determine the exact cause of G.B.’s death. The examination was carried out between 6 April and 18 June 2004. The report that followed (“report no. 9-k” or “the first report”) stated as follows: “1. As ... no autopsy was performed upon [G.B.’s] death, the exact cause of his death is unknown to the ... panel [even though] the [related] medical records indicate abdominal bleeding ... 4. We consider that a medical error was committed with respect to G.B.’s treatment in terms of the timing of the surgery, which was caused by an incorrect assessment of the clinical, endoscopy and laboratory data.” 13. On 23 June 2004 a criminal medical negligence case was opened against the relevant doctors of the hospital, in which the applicant was granted victim status. 14. The experts of the forensic bureau who had participated in the panel examination (see paragraph 12 above) were questioned as part of the investigation. The majority confirmed the earlier findings, stating that the therapeutic treatment had been adequate, but an assessment of the delay in surgery was the exclusive competence of a surgeon on the panel. The latter reiterated the findings of the report that the surgery had been delayed in view of several previously registered relapses of bleeding. He added however that this might not have made any difference to the fatal outcome. 15. The head of the expert panel further stated that a conclusive finding on the exact cause of death could not be reached without a forensic examination of the body. 16. On 7 July 2004, relying on the findings of the expert panel, a prosecutor applied to the first-instance court for permission to exhume G.B.’s body in order to determine the exact cause of his death. The request was granted on 8 July 2004. 17. On 14 July 2004 the applicant refused to allow the exhumation despite being warned of its importance for the case. 18. On 2 August 2004 the case was closed as the prosecuting authority was unable to establish a causal link between the alleged medical negligence and G.B.’s death without an exhumation of his body. 19. On 4 August 2004, relying on the findings of the panel of experts in report no. 9-k (see paragraph 12 above) the Batumi city prosecutor wrote to the Minister of Labour, Health and Social Affairs of the AAR. He noted that despite the closure of the investigation, the family’s resistance to allow an exhumation of the body to determine the precise cause of death, and the inability to establish criminal responsibility on the part of the doctors in question, the conclusion of the panel of experts that a medical error had been committed in the course of G.B.’s treatment called for “the implementation of adequate measures to prevent similar violations.” 20. On 27 September 2004, referring to the findings of the prosecutor and the panel of experts in report no. 9-k concerning the medical error committed in the course of G.B.’s treatment, the director of the hospital dismissed the neurosurgeon who had been in charge of G.B.’s treatment (მკურნალი ექიმი) and reprimanded two intensive care specialists and a surgeon. 21. On various dates the applicant asked for the investigation to be reopened. 22. On 1 August 2006 the prosecutor’s office granted the applicant’s request and reopened the investigation under Article 130 § 2 of the Criminal Code (the offence of abandoning a patient in distress, see paragraph 51 below). 23. Several witnesses were questioned, including the then director and deputy director of the hospital, who had considered the family’s resistance as grounds for not carrying out an autopsy upon G.B.’s death. 24. On 21 September 2006 the investigator obtained a second exhumation order from the court in order to determine the exact cause of G.B.’s death. The applicant once again refused to allow implementation. 25. On 4 January 2008 the prosecutor terminated the case as there was no proof causally linking the medical error with G.B.’s death. It does not appear that the applicant appealed against that decision, despite it being amenable to appeal within fifteen days of service upon the parties. 26. On an unspecified date the applicant lodged a claim with the Batumi City Court against the hospital, its medical staff and the Ministry of Labour, Health and Social Affairs of the AAR. She argued that her son’s death had been caused by medical negligence, namely incorrect and delayed treatment of his gastroduodenal bleeding. 27. Between 18 and 28 October 2004, at the request of the Batumi City Court, the Quality Control Inspectorate of the Ministry of Labour, Health and Social Affairs (“the inspectorate”) implemented an inspection of the hospital in connection with G.B.’s death, which was carried out by a panel of experts. They reached the following conclusions (“the second report”): “The institution is carrying out medical practice without a licence in the following fields: cardiology, plastic and reconstructive surgery, proctology, urology, paediatrics, epidemiology, clinical transfusion and expert assessments of temporary incapacitation. In relation to patient G.B., non-licensed activity was carried out in the following fields: cardiology and clinical transfusion. Out of the 29 doctors who took part in patient G.B.’s treatment, the invited specialists ... in endoscopy and ophthalmology do not hold a licence to practise medicine. A neurosurgeon (currently dismissed from the post) and an intensive care specialist are practising medicine independently despite being ... junior doctors. The doctor ... working as a transfusion specialist is a certified paediatrician ... ... [I]t is evident that the surgery, the sole purpose of which was to definitively determine the cause of bleeding and stop it, was carried out too late. It is difficult to determine whether the scope of the surgery was adequate, as it is impossible to determine the exact location of the ulcer (there is no forensic pathology examination report concerning the body and the two endoscopy specialists reached different conclusions concerning the ulcer’s location). It is also worth mentioning that a pathomorphological analysis of the material obtained during the surgery was not carried out...” 28. An undated study of the relevant medical files, ordered by the inspectorate from a professor of surgery at the Tbilisi State Medical University (“the third report”) noted the difficulty of making categorical claims in the absence of an autopsy of the body. It nevertheless pointed to a lack of adequate supervision by a surgeon, despite the relapses of abdominal bleeding, inadequacies in the choice of treatment, and a lack of appropriate diagnostic measures for the timely detection and possibly even aversion of the otherwise risky surgery. Stressing that it was conventional treatment methods that had been insufficiently explored, the report continued to note that it would be incorrect to make a categorical assertion, such as in the first report, as regards the medical error in relation to the delay in the otherwise high-risk surgery. 29. On an unspecified date two experts of the forensic bureau gave statements to the court and confirmed the findings of the first report that a medical error had been committed in terms of the delay in surgery. They further indicated that the cause of G.B.’s death, according to the medical records, was gastroduodenal bleeding which could have been averted by timely and adequate medical treatment. 30. On 20 January 2006, relying on the expert reports and the medical documentation available in the case files, the Batumi City Court ruled in favour of the applicant. It concluded that the doctors of the hospital had been responsible for a medical error resulting in the patient’s death. It further noted that the participation in the patient’s treatment of doctors not holding the appropriate medical licences reinforced the conclusion that he had not been offered adequate medical care. The court took the decision of the hospital director of 27 September 2004 dismissing the neurosurgeon in charge of G.B.’s treatment and reprimanding two intensive care specialists and a surgeon (see paragraph 20 above) as acknowledgment that medical negligence had been committed in the course of G.B.’s treatment. 31. The applicant was awarded 2,756 Georgian laris (GEL, approximately 1,070 Euros (EUR)) in respect of pecuniary damage. Relying on section 10 of the Patient Rights Act (see paragraph 46 below) the court also awarded non-pecuniary damages in the amount of GEL 6,000 (approximately EUR 2,331). As the contract concerning G.B.’s treatment had only been concluded with the hospital, the latter was found to be the only appropriate respondent and was accordingly ordered to pay the corresponding amount. Both the applicant and the hospital appealed, disagreeing with the court’s assessment of the facts and the scope of the award. 32. On 9 February 2007 the Kutaisi Court of Appeal upheld the lower court’s reasoning. It noted as follows: “Based on an analysis of the evidence before it, the appellate court concludes that in the course of Mr G.B.’s treatment in [the hospital] the medical negligence of the medical staff (insufficient attention towards the patient, misdiagnosis) caused harm to a person’s health and eventually caused the patient’s ... death.” 33. The appellate court continued to note that: “In addition to establishing that harm was caused to a person’s health as a result of the medical negligence of the [hospital] staff, it can also be established from the case files that [the hospital] was carrying out unlicensed activities in a number of medical fields and at the same time some of the medical staff did not have authorisation to practise medicine independently, in violation of the requirements of the [relevant legislation]...” 34. The Kutaisi Court of Appeal further found the hospital to be the only appropriate respondent to pay the damages in respect of the medical negligence of the doctors. As regards who should be held responsible for the hospital and its doctors operating without the necessary licences, it was noted that: “The Ministry of Health of the AAR cannot be held responsible in the present case ... for [the hospital] operating in certain medical fields without the requisite licences considering that, in accordance with section 54 of the Health Care Act, the issuance of such licences is [the exclusive competence] of the Ministry of Health of Georgia. Accordingly, the claim for ... pecuniary and non-pecuniary damages with respect to the Ministry of Health of the AAR is groundless.” 35. The appellate court upheld the lower court’s award of nonpecuniary damages and increased the amount of pecuniary damages to GEL 6,953 (approximately EUR 2,701). 36. Both parties appealed, disagreeing with the court’s assessment of the facts and the scope of the award. 37. On 14 May 2008 the Supreme Court adopted a decision without holding an oral hearing. Referring to the evidence available in the case files, the court found that despite the fact that the exact cause of death could not be determined without an exhumation of the body, the case files confirmed that gastroduodenal bleeding was the cause of death and that a medical error had been committed in terms of the surgery and an incorrect assessment of the various data. 38. The Supreme Court further upheld the lower courts’ findings that the hospital had been carrying out unlicensed medical activities and noted as follows: “It is confirmed ... that [the hospital] was carrying out unlicensed medical activities in the following fields: cardiology, plastic and reconstructive surgery, proctology, urology, paediatrics, epidemiology, clinical transfusion and expert assessments of temporary incapacitation. Unlicensed medical activities performed in respect of Mr G.B. were in the following fields: cardiology and clinical transfusion. Of the medical staff invited to treat ... Mr G.B. ... the endoscopy specialist and ... an ophthalmologist did not have a certificate [authorising them] to practise medicine. [Those] appointed as junior doctors ... the neurosurgeon (currently dismissed) and ... the intensive care specialist were practising medicine independently. The doctor ... certified as a paediatrician was working as a transfusion specialist. The Court of Cassation upholds the views of the appellate court that this gave rise to a violation of ... the Health Care Act and ... the Medical Practice Act.” 39. The Supreme Court noted that the Ministry of Health of Georgia was the entity responsible for issuing licences to medical institutions and that the applicable legislation did now allow medical institutions and individual doctors to practise medicine without requisite licences (see paragraphs 4445 below). It did not elaborate on whether responsibility could be attributed to the respondent Ministry of Health of the AAR. 40. The award of pecuniary damages in the amount of GEL 6,953 (approximately EUR 2,701) was upheld. 41. As regards the question of non-pecuniary damages, the Supreme Court found that domestic law did not entitle the applicant to receive an award for non-pecuniary damage for the death of her son. In particular, it observed as follows: “Under Article 1007 of the Civil Code, harm caused to a person’s health during his or her treatment at a medical institution (a result of surgery or misdiagnosis etc.) shall be compensated on a general basis. In accordance with Article 413 of the Civil Code, monetary compensation for non-pecuniary damage may be requested only in the cases expressly provided for by law, in the form of reasonable and fair compensation. The Civil Code does not define moral (non-pecuniary) damage... Under Article 413 of the Civil Code, not all types of moral harm (mental suffering) shall be compensated, even if there is no doubt as to its existence, only those for which compensation is expressly provided for by law... Accordingly, in accordance with the practice of the Supreme Court of Georgia, non-pecuniary damage resulting from the infringement of the right to life of a person’s husband, child or other relative shall not be compensated as it is not expressly provided for by law...” 42. The Supreme Court disagreed with the lower court’s interpretation that the right to claim non-pecuniary damages under section 10(a) of the Patient Rights Act also applied to the death of a relative, and noted that that right was strictly personal. The Supreme Court therefore rejected the applicant’s claim for non-pecuniary damages, noting that: “It is undisputed that a parent is subjected to moral pain as a result of the death of a young child, but it shall not be compensated considering that it is not expressly provided for by the law in force.” | 1 |
test | 001-179410 | ENG | RUS | COMMITTEE | 2,017 | CASE OF INDERKINY v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13+6 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Alena Poláčková;Helen Keller;Pere Pastor Vilanova | 4. The applicants are a family. They were born in 1971, 1968, 1992, 1995, and live in Samara. 5. On 26 April 2004 the Oktyabrskiy District Court of Samara (“the Oktyabrskiy District Court”) ordered, inter alia, the management of the State unitary enterprise “16th Military Plant” (“the company”) to provide the applicants with a suitable dwelling, while keeping their names on the list of persons awaiting housing. 6. On 11 May 2004 the judgment came into force. 7. On 28 May 2004 the Department of the Bailiffs’ Service for Oktyabrskiy District of Samara opened the enforcement proceedings. 8. On 22 December 2004 the enforcement proceedings were terminated as the company had no available residential accommodation. 9. On 1 October 2007, due to the reorganisation of the company (see paragraph 16 below), the enforcement file was sent to the Department of the Bailiffs’ Service for the Engelsskiy District of Saratov Region. 10. On 21 April 2008 the bailiffs ruled that it was impossible to enforce the judgment in the part relating to the housing, as the new debtor, FGUP 9 TSARZ (see paragraph 16 below), had no available accommodation. The enforcement proceedings were terminated. 11. On 26 August 2009 the Engelsskiy District Court of Saratov Region, following the bailiffs’ application, replaced the debtor in the enforcement proceedings from FGUP 9 TSARZ to OAO 9 TSARZ (see paragraph 17 below). 12. On 14 October 2009 the Oktyabrskiy District Court clarified the judgment of 26 April 2004 stating that the applicants should be provided with an apartment in Samara. 13. Several times in 2004-2011 the parties applied to the Oktyabrskiy District Court for changing the mode of enforcement of the judgment. Each time the courts rejected the applications finding that a payment of the amount representing the cost of an apartment would be equal to modifying the original judgment. 14. The judgment of 26 April 2004 remained unenforced. 15. The company was incorporated as a municipal unitary enterprise. According to its articles of association, the company’s aim was to produce goods and render services for the Ministry of Defense of Russia, as well as for meeting other public needs and making a profit. 16. Under the Order of the Federal Agency for State Property Management dated 22 September 2005 the company was joined to FGUP 9 TSARZ (FGUP 9 Tsentralnyy Avtomobilnyy Remontnyy Zavod – ФГУП 9 ЦАРЗ or ФГУП 9 Центральный Автомобильный Ремонтный Завод). The reorganisation was completed on 13 February 2007, and the latter company became the universal successor of the company. 17. In accordance with the Decree of the President of Russia of 15 September 2008 and the Decree of the Russian Government of 22 November 2008, FGUP 9 TSARZ was further reorganized into OAO 9 TSARZ, a publicly-traded private open joint-stock company incorporated under the laws of Russia. | 1 |
test | 001-178901 | ENG | RUS | CHAMBER | 2,017 | CASE OF KAVKAZSKIY v. RUSSIA | 4 | 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;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1986 and lives in Moscow. 6. The background facts relating to the planning, conduct and dispersal of the public event at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016) and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below. 7. On 6 May 2012 a public event entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it turned out that barriers installed by the police had narrowed the entrance to the meeting venue allegedly restricting the space allocated for the meeting. To control the crowd the police cordon forced the protestors to remain within the barriers. There were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protestors from the square. 8. On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day. 9. The applicant is a human rights activist and a lawyer of an NGO, the Committee for Civil Rights (Комитет за гражданские права). On 6 May 2012 he arrived at Bolotnaya Square to participate in the demonstration and during its dispersal kicked an unidentified police officer in the arm. After these events the applicant continued to live at his usual address and to pursue his normal activities, including taking part in authorised public events. 10. On 25 July 2012 the applicant’s flat was searched; the police seized the applicant’s clothes, domestic and international passports, other documents and his computer. On the same day the applicant was arrested on suspicion of having participated in acts of mass disorder on 6 May 2012. 11. On 26 July 2012 the Basmannyy District Court ordered the applicant’s pre-trial detention until 25 September 2012 on the following grounds: “The prosecution bodies suspect [the applicant] of having committed a serious offence punishable with imprisonment of over two years. ... the court concludes that there are grounds to consider that [the applicant], if at liberty, is likely to abscond from the investigation and trial, to act in person or through proxy with the aim of avoiding criminal liability, to continue [his] criminal activity, to destroy evidence and otherwise obstruct the investigation, which is at its initial phase. Operational-search activities are now underway, aimed at establishing [the applicant’s] possible connections with other active participants of the mass disorders which took place at Bolotnaya Square in Moscow and its environs, therefore, if at liberty, [he] might co-ordinate his position with unidentified accomplices. ... No factual information excluding the detention of [the applicant] on health grounds has been submitted to the court. The court takes into account that [the applicant] may request medical assistance in the detention facility, if necessary ...” 12. The District Court dismissed an application by the applicant for an alternative preventive measure, such as house arrest, and stated that his state of health did not preclude him from detention. On 5 September 2012 the Moscow City Court upheld the detention order. 13. On 2 August 2012 the applicant was charged with the offence laid down in Article 212 § 2 of the Criminal Code (participation in mass disorder accompanied by violence) and accused, in particular, of having kicked a police officer. 14. On 24 September 2012 the Basmannyy District Court extended the applicant’s detention until 6 November 2012, having found that the circumstances that had justified the detention order had not changed. The District Court dismissed the applicant’s allegations of lack of medical assistance in the remand prison as unsubstantiated. It stated that the applicant’s state of health was satisfactory and did not warrant his release. On 15 October 2012 the Moscow City Court upheld the extension order. 15. On 31 October 2012 the Basmannyy District extended the applicant’s detention until 6 March 2013 on essentially the same grounds as earlier. On 26 November 2012 the Moscow City Court upheld the extension order. 16. On 4 March 2013 the Basmannyy District Court examined a new application for an extension of the applicant’s pre-trial detention. The applicant complained of exacerbation of chronic diseases in detention. He asked to be released on bail and presented personal guarantees from two prominent public figures, including a human-rights activist, who vouched for him. On the same day the District Court extended the applicant’s detention until 6 July 2013. It considered that a milder preventive measure, including release on bail, would not prevent the applicant from obstructing the proper administration of justice. The applicant’s allegations in respect of the deterioration of his health were dismissed; the court relied on the medical statement from the remand prison, according to which his health was satisfactory. On 17 April 2013 the Moscow City Court upheld the extension order. 17. On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges. 18. On 6 June 2013 that court granted another extension of the applicant’s detention, until 24 November 2013. The decision concerned eleven defendants. Along with the seriousness of the charges, the court based its decision on the findings that “the reasons which had initially warranted the detention have not changed” and that “no other measures of restraint would secure the aims and goals of the judicial proceedings”. The Moscow City Court upheld this extension order on 2 July 2013. 19. On 2 August 2013 the Presidium of the Moscow City Court examined the supervisory appeal lodged by the Ombudsman of the Russian Federation. It rectified the extension orders of 24 September and 31 October 2012, and 4 March and 6 June 2013 as well as the Moscow City Court’s decision of 15 October 2012. The Presidium found that the applicant’s detention had been unjustified and that the detention orders had not been supported by relevant facts; it also took account of his worsening health. The Presidium lifted the detention order and placed the applicant under the house arrest until 2 October 2013 under the following conditions: prohibition from leaving his house or changing his place of residence; prohibition from communicating with co-defendants and witnesses; prohibition from sending and receiving correspondence; prohibition from using any means of communication. On the same day the applicant was released from pre-trial detention. 20. On 26 September 2013 the Zamoskvoretskiy District Court extended the applicant’s house arrest until 2 January 2014. It referred to the seriousness of the charges and considered that as a human-rights activist the applicant could communicate with different authorities and persons and thus obstruct the course of criminal proceedings. On 28 October 2013 the Moscow City Court upheld this decision on appeal. 21. On 18 December 2013 the State Duma passed the Amnesty Act, which exempted people suspected and accused of criminal offences under Article 212 §§ 2 and 3 of the Criminal Code from criminal liability. 22. On 19 December 2013 the applicant applied for the termination of the criminal proceedings against him under the Amnesty Act. On the same day the Zamoskvoretsky District Court granted his application and lifted the house arrest. 23. Prior to his detention, the applicant was diagnosed with an organic lesion of the central nervous system, hypertensive syndrome, tonsillitis, chronic gastritis, atopic dermatitis, osteochondrosis and dorsopathy (back pain). According to the applicant, these diseases required regular medical supervision, diet and lifestyle adjustments. 24. From 27 July 2012 to 2 August 2013 the applicant was held in remand prison IZ-77/2 in Moscow. Upon his admission to the prison he underwent a health check which revealed no health issues except atopic dermatitis and scoliosis. The applicant provided the detention facility with his medical records which stated his chronic ailments. 25. On 31 August 2012 the applicant underwent a medical examination by a general practitioner (“GP”). He was diagnosed with vegetative-vascular dystonia, dorsopathy, osteochondrosis, kyphoscoliosis, and first- or seconddegree obesity. He received a prescription for a special diet limiting intake of fats and quickly-absorbed carbohydrates. 26. The applicant was subsequently examined by a GP on 25 September, 19 October and 26 November 2012, and 24 January, 15 and 25 February, and 15 March 2013. The examinations revealed no negative dynamics in the state of the applicant’s health; the prescriptions for the special diet were renewed each time. 27. By letter of 2 November 2012 the head of the IZ-77/2 informed the applicant’s father that chronic gastritis was not on the list of diseases which allow patients to receive additional nutrition. 28. On 30 November 2012 the applicant’s lawyer complained to the prison chief of the deterioration of his client’s health, in particular, of his regular headaches, back pain and weight-gain. He alleged that the applicant had put on 20 kg over the five months in detention and requested an inpatient medical examination. 29. On 31 January 2013 the applicant was examined by a neurologist and received a prescription for treatment in relation to vegetative-vascular dystonia. At the regular check-up by a GP on 15 February 2013 the applicant stated that his condition had improved; he was recommended to continue the prescribed treatment. 30. On 14 February 2013 the applicant’s lawyer reiterated his application for a medical examination and asked to give the applicant access to a gym. 31. On 4 April 2013 a medical commission composed of a GP, an infection specialist, a surgeon and two administrators examined the applicant and his medical history. In addition to the previous diagnoses, they established chronic liver disorder and recommended that he continue the special diet. 32. On 14 April 2013 the applicant was temporarily transferred to the medical wing of IZ-77/1. Upon his admission he was found to be suffering from second- or third-degree obesity (at this stage he weighed 109 kg and was 178 cm in height) and was prescribed the same diet as before. 33. In IZ-77/1 the applicant underwent series of medical examinations and tests, including an abdominal ultrasound, a thyroid echography, an electrocardiogram, roentgenofluorography, X-ray examinations of his skull and spine, and blood tests. He was regularly examined by a GP who adjusted the treatment according to the results of the tests. The applicant also had a consultation with a dermatologist. 34. The public commission for the monitoring of detention facilities visited the applicant on 17 and 24 April and 2 May 2013. According to the journal of their visits, the applicant did not complain of inadequate medical assistance in IZ-77/1. 35. The discharge summary (выписной эпикриз) from the medical wing of IZ-77/1, issued on 17 May 2013, contained the results of the applicant’s medical examinations. He was diagnosed with osteochondrosis, dorsopathy, fatty liver, hypercholesterolemia, vegetative-vascular dystonia, acne and first-degree obesity. The applicant received a prescription for physiotherapy and a special diet; he was also recommended to undergo a magnetic resonance imaging procedure in relation to a suspected cerebral condition, which had to be carried out in a different hospital equipped with the appropriate scanning device. On the same day the applicant was transferred back to IZ77/2. 36. On 6 July 2013 the applicant lodged a complaint about the authorities’ failure to carry out his medical examination to the Tverskoy District Court of Moscow. On 4 September 2013 the Tverskoy District Court refused to examine this complaint. 37. The magnetic resonance imaging procedure had not been carried out before the applicant’s release from the detention facility on 2 August 2013. 38. After release the applicant had a medical examination at the town hospital and a consultation with a prominent gastroenterologist. The doctor confirmed the applicant’s previous diagnoses related to the digestive system and prescribed him medical treatment, a special diet and physical exercise. 39. The applicant’s description of the conditions of detention during his transfer from the remand prison to court and back was identical to that in the case of Yaroslav Belousov (cited above, §§ 69-73). 40. On 6 June 2013 court proceedings began in hearing room no. 338 and at the end of July moved to hearing room no. 635 of the Moscow City Court. The defendants, including the applicant, were held in glass cabins in both hearing rooms, as described in Yaroslav Belousov (cited above, §§ 7476). From 2 August 2013 the applicant was no longer placed in the glass cabin owing to a change in the measure of restraint for him. | 1 |
test | 001-179793 | ENG | FRA | CHAMBER | 2,017 | CASE OF RAMDA v. FRANCE | 3 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);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) | null | 5. The applicant was born in 1969 and is currently detained in Lannemezan Prison. 6. The applicant was a member of the Islamic Salvation Front (Front Islamique du Salut – “the FIS”) and left Algeria prior to the dissolution of that political group by a judgment of the Algiers Administrative Court dated 19 March 1992. After spending some time in Pakistan he entered the United Kingdom in January 1993 using the false name of Elias Serbis. On 26 February 1993 he applied for political asylum in that country, claiming to have been forced to leave Algeria because of his membership of the FIS. His application was refused on 10 August 1994. 7. On 25 July, 17 and 26 August, 3, 4 and 7 September and 6 and 17 October 1995 eight terrorist attacks were carried out in France. 8. Although no organisation explicitly claimed responsibility, certain factors, such as the existence of virulent press statements against France and the mode of operation of the attacks, pointed to the involvement of the Armed Islamic Group (Groupement Islamique Armé – “the GIA”). 9. In the course of the judicial investigation aimed at identifying the perpetrators, telephone tapping operations carried out on public payphones used by a certain B.B. led to a number of persons being arrested and to the search being focused on the United Kingdom and an individual named Elyes (also known as Elyesse or Eliass). The sources of these names or pseudonyms were a telephone conversation of 1 November concerning Elyes and the Western Union bank, a search of B.B.’s home during which a document was found showing that a sum of money had been transferred to B.B. from that bank on 16 October 1995, and the decoding of a list of telephone numbers found on B.B.’s person and at his home and featuring three numbers in England preceded by the name “Elyesse” or “Eliass”. B.B., who was arrested on 1 November 1995, also directly implicated “Ylies”, claiming that he had funded the campaign of attacks from London and had been kept informed of their progress. 10. On 3 November 1995 the French National Surveillance Directorate informed the investigators that the individual known as “Elyes, Ilyes, Lyes, Iliesse, Eliass or Elyasse”, whom B.B. had identified as having funded the attacks, might be the applicant. The latter, who was living in London, was suspected of being one of the leaders of the GIA in the United Kingdom, in particular because of his involvement with the publication Al Ansar (or Al Ansaar) which the GIA used as a mouthpiece abroad. 11. The investigations carried out in London established that the applicant had a home there and had a set of keys to a second London address, which served as the offices of the magazine Al Ansar and as a meeting place for all the persons involved in publishing and distributing it. On the premises the investigators found, among other items, the following: contracts for three mobile phones in the names of three of the applicants’ acquaintances and corresponding to the numbers identified at the home of B.B., who had rung the numbers before and after each attack; a receipt for the rental of a post-office box in the name of Fares ELIASS with the applicant’s fingerprints on it; letters and statements from the FIS; a statement saying that only the GIA was entitled to conduct the jihad; a letter from the GIA to the French President calling on him to convert to Islam; a letter commenting on the attacks carried out in France; copies of press articles on anti-terrorism mentioning the names of judges and members of the intelligence service; a piece of paper on which “Notre Dame 3314354-46-12” was written, corresponding to the telephone number of the Western Union branch at 4 rue du Cloître Notre Dame in Paris; and a receipt dated 21 July 1995 issued by a branch of Thomas Cook in London for a sum of 5,000 pounds sterling (GBP). 12. The applicant was arrested and placed in police custody from 4 to 7 November 1995 under the Prevention of Terrorism Act. 13. On 7 November 1995 the applicant was detained pending extradition under the terms of an international arrest warrant issued on the same day in connection with the investigation into the attack carried out on 6 October 1995 close to the Maison Blanche metro station. 14. Three further international arrest warrants were issued concerning the applicant: on 24 November 1995 in relation to the attack of 17 October at the Gare d’Orsay station; on 29 January 1996 in the case concerning a conspiracy to prepare terrorist attacks; and on 16 January 2001 in relation to the attack carried out on 25 July 1995 at the Saint-Michel suburban rail station. 15. The applicant lodged habeas corpus applications which were dismissed in June 1997 and in 2001. On 8 October 2001 the British Home Secretary ordered his removal to France, but that order was quashed by the High Court, Queen’s Bench Division, on 27 June 2002. 16. On 6 April 2005 the Home Secretary signed a fresh order for the applicant’s extradition in the light of the assurances provided by the French authorities concerning the safeguards of a fair and impartial trial in France. On 14 October 2005 the High Court dismissed an appeal by the applicant. 17. On 1 December 2005 the applicant was handed over to the French authorities and was remanded in custody the following day. 18. By an order of 5 February 1999 the applicant was committed for trial in the Paris Criminal Court for involvement – in France and in England, from an unspecified date until 4 November 1995 – in an association or conspiracy formed with a view to the preparation, in the form of one or more material acts, of one of the terrorist acts in question. The investigating judge stated, in particular, as follows: “- [the applicant] was responsible for distributing the journal Al Ansar, a propaganda outlet of the Armed Islamic Group; - ... was involved on this account in disseminating propaganda for that organisation, which is banned in France; - ... was the main contact person in Europe for [D.Z.], alias Abou Abderhamane Amine, in organising and carrying out the GIA’s activities in Europe; - ... was tasked with sending money to GIA members still in France to enable them to fund and carry out attacks; - ... was in contact with numerous persons involved in and convicted of criminal conspiracy with a view to a terrorist enterprise.” 19. In a judgment of 29 March 2006 accompanied by over thirty pages of reasoning, the Criminal Court first of all set out the facts with regard to the “political/religious background”, the emergence of the FIS and then the GIA, the “background to the attacks” in 1995 – which it listed and described as attributable in all likelihood to the GIA – and the “context surrounding Rachid Ramda”. 20. Ruling on the criminal charges, the court began by examining the case against the applicant. It found that it could be established with certainty, on the basis of precise and concurring physical evidence, that the applicant had indeed used various false names and aliases which had come up in the course of the investigations, a fact the court described as “beyond doubt and indisputable”. With regard to the GIA’s funding the court, having noted the prosecution’s claims that the applicant had funded the GIA groups which carried out the attacks in France during the second half of 1995, examined the factual evidence in the case file at length and in detail. It observed in particular that, according to one witness who was a GIA member, the organisation’s groups had different specialisations depending on their location, with the London group being responsible for sending funds. The court further noted that the applicant had transferred GBP 5,000 on 16 October 1995, two days before the attack of 17 October 1995. This was established by the statements of the British police officers tasked with keeping the applicant under surveillance and of the staff of the Western Union branch where the transfer had been made, and also by the discovery of the applicant’s fingerprints on the transfer slip kept by the Western Union branch. The court also observed that one of the perpetrators of the attacks, B.B., had stated that the money used in preparing the various attacks had always been supplied by the applicant from London. The court inferred that the facts as a whole “demonstrate[d] that Rachid Ramda was indeed responsible for funding terrorist groups on French soil”. Furthermore, in response to the public prosecutor’s submissions concerning the applicant’s role in disseminating GIA propaganda, the first-instance court also considered the various items of factual evidence before it, and in particular the wealth of correspondence and propaganda documents relating to the GIA’s views and actions that had been found during the searches of the various premises used by the applicant, as well as the statements by a GIA member confirming the applicant’s role as a member of the team publishing the magazine Al Ansar, which was the GIA outlet used in particular to claim responsibility for attacks. It also noted the presence at the applicant’s home of pamphlets promoting terrorism and killing with specific reference to France. The court concluded that the applicant had played a part in disseminating GIA propaganda and ideas. 21. Turning next to the applicant’s involvement in a criminal conspiracy in connection with a terrorist enterprise, the court found this offence to have been made out, as the investigation had shown that several groups located in the Lyons area, in Paris and in Lille had been behind the 1995 attacks. All the members had either been directly involved or had played an indirect role by aiding and abetting and providing resources, and all of them were either known activists or claimed to be activists within the GIA. The court found that the applicant’s contacts with the various members of these networks, who had the shared goal of carrying out attacks, were sufficient to establish his conscious and deliberate participation in a conspiracy to carry out terrorist acts on French soil. In its judgment the court set out, among other findings, the facts showing the existence of links to eight members of three groups forming a support network for the GIA. 22. Accordingly, the Criminal Court found the applicant guilty of criminal conspiracy in connection with a terrorist enterprise, on the basis of Articles 450-1 and 421-1 of the Criminal Code. It sentenced him to ten years’ imprisonment and ordered his permanent exclusion from French territory. The court cited as reasons for imposing the prison sentence the fact that “by providing funding and issuing propaganda on behalf of the GIA, Rachid RAMDA not only enabled the attacks to be carried out but acted as a propagandist, potentially attracting new members to strengthen the networks spread over several European countries”. It further cited the fact that “his double talk reveal[ed] both his bad faith and his complete lack of regret or remorse”. The court awarded one euro (EUR) in damages to the association SOS Attentats, which had joined the proceedings as a civil party. 23. In a final judgment of 18 December 2006 the Paris Court of Appeal upheld that judgment. While referring expressly to the statement of facts as established in the judgment, it devoted some thirty pages to analysing the charges against the applicant, giving reasons. First of all, the Court of Appeal gave further details concerning the evolution and operation of the GIA. It also specified that the case before it concerned “the series of attacks carried out in France in the summer and autumn of 1995”, and that “the facts of the case at hand concern[ed] the preparation of the attacks and the actions enabling the attacks, which started in France in July 1995, to be carried out”. The Court of Appeal went on to list the eight attacks carried out between 25 July and 17 October 1995. With particular reference to the evidence of the existence of an information hub based in London which the applicant had allegedly managed, it found this to be established on the basis of the telephone calls made on the day after the killing of the imam S. in Paris; two days before the attack on the Saint-Michel suburban rail station; on the day of that attack and the day after the attempted attack on the ParisLyon high-speed railway line at Cailloux-sur-Fontaines; on 12 September 1995, a few days after the attack of 3 September on Boulevard Richard Lenoir in Paris, the attempted attack of 4 September on Place Charles Vallin in Paris and the attack of 7 September in rue Jean-Claude Vivand in Villeurbanne; the day after the shooting at the Col de Maleval and the arrest of three people; five days before the attack of 6 October and two days after it; on 16 October 1995, in other words just before the attack of 17 October; and, finally, on 1 November 1995, immediately after a telephone conversation between B.B. and S.A.B. concerning preparations for an attack on the Wazemmes market in Lille, with B.B. stating that the purpose of the call was to report to the applicant on the “final preparations” for the Lille attack. 24. The Court of Appeal also emphasised the existence of several items of factual evidence pointing to the applicant’s involvement as the supervisor of a structure set up to fund the GIA’s activities. These included the fact that the applicant had sent funds from England on 16 October 1995 under the false name of Philippe Hervier, which had been received by B.B. at the Rivoli branch of the Rivaud bank under the false name of A. Benabbas, and which matched an entry in A.T.’s accounts book marked “36,800 francs, Lyseo” and B.B.’s statements; the payment by the applicant of GBP 5,000 and 50,000 French francs (FRF), as shown by an entry in A.T.’s accounts book which mentioned funds sent by “Walid”, a false name used by the applicant or the first name of one of his acquaintances who could be contacted in order to reach him; statements from several individuals concerning services offered in return for payment, fundraising, the sending of substantial sums of money, a transfer of EUR 4,000 to M. and the existence of a receipt for GBP 100. 25. Lastly, the Court of Appeal noted a series of facts demonstrating, firstly, that the applicant had been “the main contact person ... in organising and carrying out the GIA’s activities in Europe”, as was clear in particular from a telephone conversation of 2 December 1995, from the statements of a witness who was a GIA member, and from the detailed content of several documents seized in London (press statements, authorisations to conduct the jihad, documents on the management of funds, articles and handwritten notes on the activities of Islamist groups in Europe and anti-terrorist activities, notes on military weapons and the handling of explosives, and so on); secondly, that he had been “the GIA’s main propaganda agent outside Algeria”, with “his role on the magazine Al Ansaar” (particularly in the light of documents seized at the applicant’s London address, namely a note on how to make the magazine more dynamic, a letter explaining the means of distributing it, a piece of computer equipment which the applicant would have been unable to afford, letters from readers and GIA sympathisers, a large number of magazines detailing the GIA’s ideas and violent actions, a substantial amount of correspondence relating to Algerian and Islamic issues, some testimonies, and a list of post-office boxes in numerous countries, used by the magazine’s subscribers); thirdly, that he had been at the centre of “the London cell which revolved around [him and which] also served as a rallying point for young recruits passing through”, as demonstrated by the personal histories of four of them; and fourthly, that he had been a leader with “a strategic role in the GIA’s external organisation”, as demonstrated by his links to members and correspondents of other Islamist terrorist groups worldwide. 26. The Court of Appeal echoed the reasons given by the Criminal Court and added that there was sufficient evidence in the case to demonstrate that the applicant had been contacted regularly in order to be kept informed of events, that he had been responsible for funding GIA operations in Europe, that he had acted as a conduit for the GIA’s military command and as a propaganda agent for that organisation, especially through the magazine Al Ansar, that he had given shelter to fugitives passing through London and had sometimes been called upon to coordinate the GIA’s external activities. The Court of Appeal therefore concluded as follows: “The Court of Appeal, like the first-instance court, therefore finds it established that the GIA created ‘an external structure’ in Europe designed to enable it to pursue its goal of overthrowing the Algerian regime, including by attacking institutions and people in countries that supported or were deemed to support that regime, by setting up networks in Belgium and France in particular which provided support to the Algerian guerrillas by supplying weapons, munitions and various items of equipment, supplying jihadists and providing safe havens (accommodation and false identity papers) to fighters who were fleeing the maquis or had arrived to carry out attacks, organised and coordinated by a cell in London in charge of fundraising and using funds acquired lawfully or unlawfully. ... [the applicant] knowingly played a decisive role, by means of the material acts referred to by the Criminal Court and by this court above, in the achievement of the GIA’s goal, participating from London in the implementation of the group’s external structure, and played a vital role within the organisation whose aim was to prepare, assist in and carry out the attacks which took place.” 27. In a judgment of 14 March 2007 the Court of Cassation dismissed an appeal on points of law by the applicant. 28. In a judgment of 13 February 2001 the Investigation Division of the Paris Court of Appeal indicted B.B., S.A.B. and the applicant for the attack of 17 October 1995 and committed them for trial before the Paris special Assize Court. The applicant was charged with aiding and abetting the crimes of attempted murder, destroying or damaging property belonging to others by the use of an explosive substance causing mutilation or permanent disability and temporary total unfitness for work of over eight days or of a maximum of eight days, in connection principally or incidentally with a terrorist enterprise, and with the related offence of a breach of the explosives legislation in connection with a terrorist enterprise. 29. On 3 August and 27 November 2001 the Investigation Division of the Paris Court of Appeal upheld the orders issued by the Paris investigating judge on 27 April (concerning the attack of 25 July 1995) and 13 July 2001 (concerning the attack of 6 October 1995) for the indictment of the applicant and B.B. and their committal for trial before the special Assize Court. The applicant faced trial for aiding and abetting the crimes of murder, attempted murder, destroying or damaging property belonging to others by the use of an explosive substance causing death, mutilation or permanent disability and temporary total unfitness for work of over eight days or of a maximum of eight days, in connection with a terrorist enterprise, and for the related offence of a breach of the explosives legislation in connection with a terrorist enterprise. 30. These three judgments of the Investigation Division specified that the applicant had aided and abetted by: transmitting instructions from the GIA ordering attacks with explosives and providing B.B. with instructions on manufacturing; relaying to the GIA leadership operational information provided by the perpetrators of the attacks; providing the perpetrators with the funds needed not just to manufacture the explosive devices but also to make all the logistical arrangements for preparing and carrying out the attacks. The judgments of 13 February and 3 August 2001 added the fact that the funds had also been intended, if necessary, to enable the perpetrators based in France to flee. 31. In these judgments the judges noted in particular the following facts in relation to the applicant. The three mobile phones used by the applicant had received calls from B.B. on 16 and 22 October and 1 November 1995; a receipt for an exchange transaction performed on 16 October 1885 at 3.50 p.m. (Paris time) for an amount of FRF 36,800 had been discovered at B.B.’s home, together with a notice of transfer of FRF 38,000 from an English branch of Western Union, and the checks carried out established that the applicant had gone into a Londis shop in Wembley containing a Western Union office at 2.34 p.m. on 16 October 1995 and had re-emerged at 3.26 p.m. (London time); the applicant’s fingerprints had been found on the transfer slip kept by the Western Union office in the Londis shop; the words “LYESO – FF 36,600” had been found in the credit column of B.B.’s accounts and the words “West Union” and “West-Union Bank” had also been entered by B.B. in a document logging the details of the 17 October attack; the applicant had possessed the details of the Western Union branch in rue du Cloître in the Notre-Dame district of Paris; an exchange receipt dated 21 July 1995, for an amount of GBP 5,000 exchanged at a rate of 7.5%, had been found at the applicant’s home, with the number of a public payphone in Corbeil-Essonnes used by A.T. written on the back, and an entry had been made in the credit column of B.B.’s accounts for the sum of “5,000 pounds sterling from [W.], converted at a rate of 7.5%”; a sum of GBP 6,945 had been sent on 20 July 1995; between 20 and 25 July 1995 the sum of FRF 300 had been entered as expenditure for the purchase of a “GB ticket”, demonstrating that the funds, after being exchanged in England, had been transported to Paris in the days leading up to the attack at the SaintMichel suburban rail station; and a letter from British Telecom had been found, addressed to “Walid” at 122 Hamlet Gardens, the applicant’s address. The judges also noted, as evidence against the applicant, the content of a hard disk found in a London flat to which the applicant had keys, containing two financial reports, one relating to the activities of the GIA in Belgium and the other to a set of accounts for the period from September 1994 to 1 November 1995, the date of B.B.’s arrest. 32. In its judgment of 13 February 2001 concerning the attack of 17 October 1995 the Investigation Division observed in particular that the applicant’s three telephone numbers had been called repeatedly from payphones used by B.B., around the time of the different attacks and in particular on the day before the attack of 17 October 1995. It compared these calls with the statements made by B.B. and a further accomplice, who had been planning an attack on Lille city market, according to which they had reported to the applicant on preparations for the operations, and in particular for the attack of 17 October 1995. The Investigation Division also noted that the applicant had made a transfer of FRF 36,800 from London the day before that attack – as shown by the fact that his fingerprints had been found on the transfer slip in the Western Union office in London – which had been received by B.B. in Paris on the same day. The link between that transfer and the attack of 17 October 1995 had also been established by B.B.’s statements and by a call made to the applicant’s mobile phone the same day, after the money had been received. 33. In its judgment of 3 August 2001 relating more specifically to the attack of 25 July 1995, the Investigation Division stressed that the applicant’s English mobile phone had been called two days before that attack from a public payphone in Paris close to B.B.’s home from which other calls had been made, including a call to a mobile phone belonging to a member of the French GIA network, made one minute before the applicant was called. Furthermore, the day before the attack and then on the day itself, the applicant had received calls from France on his various numbers, including from a payphone close to the previous one, concerning his role as an intermediary between the perpetrators of the attacks and the person masterminding them in Algeria. Above all, the Investigation Division noted that the applicant had on 2 and 20 July 1995 sent sums of GBP 5,000 and GBP 6,945 respectively which were directly linked to the attack carried out on 25 July 1995. 34. Lastly, in its judgment of 27 November 2001 the Investigation Division also noted that it was clear from these different elements that the applicant had sent funds to the perpetrators of the attacks, not just in relation to the campaign of attacks as a whole but also for use directly in carrying out the attack of 6 October 1995. With regard to the latter, it noted that the instructions issued by the GIA concerning the campaigns, which had been accompanied by advice on the manufacture of explosives, had been transmitted via the applicant, who had also funded all the operational arrangements put in place in France in order to ensure the success of the attacks, and that the recipients had been required to report to him on how the money had been used. A number of telephone calls had established that the applicant had been kept informed of the progress of the attacks, and in particular of the attack of 6 October 1995, which had been followed by a telephone call on 8 October 1995 telling the applicant that everything had gone well on 6 October. 35. On 26 October 2007 the Paris special Assize Court, composed of seven professional judges, found the applicant guilty as charged in connection with the three attacks. It sentenced him to life imprisonment with a minimum term of twenty-two years. The applicant appealed on 29 October 2007. 36. The appeal proceedings before the Paris special Assize Court, this time composed of nine professional judges, took place from 16 September to 13 October 2009. One hundred and ninety-six individuals joined the proceedings as civil parties, as did the RATP (the Paris public-transport operator), the SNCF (the French national rail company), the Guarantee Fund for victims of terrorist acts and other crimes, the Government Law Officer and the association SOS Attentats. 37. At the hearing of 16 September 2009 counsel for the applicant made submissions requesting the termination of the proceedings and a finding that the prosecution was null and void, on the basis of the ne bis in idem principle. Citing Article 4 of Protocol No. 7 and the judgment in Sergey Zolotukhin v. Russia, delivered by the Grand Chamber of the Court on 10 February 2009, they argued that the material acts which the Assize Court was called on to examine were the same as those of which the applicant had previously been convicted by the Paris Court of Appeal in its final judgment of 18 December 2006. In counsel’s view, the material acts alleged in the Assize Court proceedings, namely the transfer of funds to the perpetrators of the attacks, the transmission of instructions to the same perpetrators, and the monitoring of the preparation and carrying-out of the attacks, had also been alleged in the Criminal Court proceedings. 38. In an interlocutory judgment of 17 September 2009 the special Assize Court dismissed the objection regarding a breach of the ne bis in idem principle, finding as follows: “Although Rachid RAMDA’s defence counsel correctly points out that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same, the following factors need to be taken into consideration in the present case: - The facts on which the criminal courts based their finding that Rachid RAMDA was guilty, while they related to criminal acts dealt with in the current set of proceedings, were by no means confined to them. In finding the offence of criminal conspiracy to be made out – a separate offence that is provided for and punishable under Article 450-1 of the Criminal Code – the courts considered all the elements apt to substantiate the accused’s involvement in the conspiracy, which was aimed at organising, developing and ensuring the continuation of a movement that was bent on imposing its cause, in particular by using clandestine methods and material and intellectual resources (recruitment of and regular contact with activists, dissemination of information on the GIA’s activities and views, fundraising, seeking donations of weapons and various items of equipment, etc.), without necessarily pursuing the sole objective of carrying out the attacks that are the subject of the proceedings. - The facts to be considered by this court differ substantially from the earlier ones in that they relate to criminal conduct aimed at the achievement of one-off objectives which were determined with precision and were not inextricably linked, and which were driven by a specific motivation consisting in particular in providing others, in full knowledge of the situation, with the means of deliberately harming human life or individuals’ physical or mental integrity by the use of explosives. - In these circumstances the finding that Rachid RAMDA was guilty and his conviction by the Paris Court of Appeal cannot lead the Assize Court to find that his prosecution has lapsed and to declare the criminal proceedings against him null and void. - It is thus the task of the Assize Court, on conclusion of the proceedings and in the light thereof, to rule, by answering the questions raised before it, as to whether or not Rachid RAMDA is guilty of aiding and abetting as charged ...” 39. In an interlocutory judgment of 24 September 2009 the special Assize Court of Appeal deferred its decision on a request for further information and eventually rejected the request in a further interlocutory judgment of 8 October 2009. 40. Sixty-three questions concerning the applicant alone were put to the special Assize Court of Appeal. Twenty-six related to the circumstances surrounding the attack of 25 July 1995, eighteen to the events surrounding the attack of 6 October 1995 and nineteen to the attack of 17 October 1995. The questions gave precise details of the various alleged acts and where and when they had been committed, and listed the names of dozens of victims of killings and attempted killings, mutilation or permanent disability, injuries resulting in unfitness for work of up to eight days or more, and victims of damage to their property. The answer to sixty-one of the questions was “yes”, by a majority (some questions, followed by a list of victims and requiring an individual reply in each case, were also found partly “devoid of purpose”), and two questions were found to be “devoid of purpose”. Besides details regarding the places and dates concerned in each instance, as well as the indication of the victims according to the damage suffered (death, mutilation or permanent disability, temporary total unfitness for work of over eight days and of a maximum of eight days, destruction of or damage to property), the questions related in particular to whether or not the applicant’s actions had been premeditated (questions nos. 2, 8, 28 and 46), and to incitement of others to commit certain acts (questions nos. 5, 11, 20, 25, 31, 36, 43, 49, 57 and 62), the assistance lent by the applicant to the perpetrators of the attacks (questions nos. 10, 19, 24, 30, 35, 42, 48, 56 and 61) and whether the applicant had issued instructions to others to commit certain crimes (questions nos. 6, 12, 21, 26, 32, 37, 44, 50, 58 and 63). The parties did not comment on these questions. 41. An affirmative answer was given to the questions whether the applicant had knowingly assisted in the manufacture or possession of explosive devices and in issuing instructions to that effect, in the context of the attacks of 25 July and 6 and 17 October 1995, and whether he had knowingly incited others to manufacture or possess such devices in the context of the attacks of 25 July and 17 October 1995. 42. In a judgment of 13 October 2009 the special Assize Court of Appeal found the applicant guilty and sentenced him to life imprisonment with a minimum term of twenty-two years, and ordered his permanent exclusion from French territory. It adjourned the civil hearing for a later date. The applicant appealed on points of law. 43. On 15 June 2011 the Court of Cassation dismissed the applicant’s appeal on points of law. Regarding his ground of appeal to the effect that no reasons had been given for the finding of guilt, based in particular on Article 6 of the Convention, it found as follows: “Firstly, the impugned questions, which were put in accordance with the law, established in all aspects the acts of aiding and abetting of which Mr Ramda was found guilty. Secondly, the judgment convicting Mr Ramda included the answers which the judges comprising the special Assize Court of Appeal gave immediately after the oral proceedings, on the basis of their personal conviction and by a majority following a secret vote, to the questions concerning his guilt which were put to them in accordance with the operative provisions of the committal orders and were the subject of adversarial argument. Accordingly, and given that steps were taken to ensure the prior investigation of the charges contained in the indictment, the free exercise of the rights of the defence, and the public and adversarial nature of the proceedings, the requirements laid down by the statutory and Convention provisions relied on were satisfied.” 44. As to the ground of appeal concerning a breach of the ne bis in idem principle on account of the applicant’s final conviction by the Paris Court of Appeal on 18 December 2006 on the basis of identical facts, the Court of Cassation held that criminal conspiracy was a separate offence from the crimes prepared or committed by its members and also from the offences characterised by certain material acts that embodied it. ... | 0 |
test | 001-153316 | ENG | HRV | CHAMBER | 2,015 | CASE OF PAVLOVIĆ AND OTHERS v. CROATIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicants were born in 1959, 1950 and 1952 respectively, and live in Brestovec Orehovički and Krapina respectively. 6. In 1990 I. Ku., the applicants’ predecessor, brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against M.K., seeking his eviction from a flat and reimbursement of the costs of the proceedings. 7. In 2001, following the death of I. Ku, the applicants, as his heirs, took over the proceedings as plaintiffs, while M. K. also died in the course of proceedings and I. Kr. replaced him as defendant. 8. During the proceedings, I. Kr. brought a counterclaim against the applicants, seeking either a specially protected tenancy of the flat at issue or compensation for investments in the flat he had made in the amount of 95,000 Croatian kunas (HRK). The applicants also, in addition to I. Ku.’s civil action, requested the Zagreb Municipal Court to order I. Kr. to remove everything he had installed in the flat. 9. At the closing hearing before the Zagreb Municipal Court on 12 June 2007 the applicants reiterated all their arguments and requested reimbursement of the costs of proceedings. At the same hearing, the applicants submitted a written itemised claim for costs in the amount of HRK 14,786.40. At the same time, the defendant’s representative reiterated his arguments and requested reimbursement of the costs in the amount which he promised to specify later. 10. On the same day the Zagreb Municipal Court allowed the applicants’ action in part, ordering the eviction of I. Kr. from the flat, whereas it dismissed the remainder of their civil action, as well as I. Kr.’s counterclaim for compensation of the investments in the flat. As regards the costs of the proceedings, the Zagreb Municipal Court noted: “With regard to the costs of the proceedings, each party shall bear their own costs, as provided under section 154 § 2 of the Civil Procedure Act, since the plaintiff succeeded with part of [their] action while [they] were dismissed as regards the remainder, and the counterclaim was fully dismissed.” 11. On 10 October 2008, in a supplementary judgment, the Zagreb Municipal Court dismissed I. Kr.’s civil action for a specially protected tenancy. 12. Meanwhile, the parties challenged the first-instance judgment of the Zagreb Municipal Court of 12 June 2007 before the Zagreb County Court (Županijski sud u Zagrebu). The applicants argued that the first-instance court had incorrectly assessed the situation concerning their right to reimbursement of the costs of proceedings. 13. On 2 February 2010 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the appeals and upheld the first-instance judgment. As regards the applicants’ arguments concerning the costs of proceedings, the Zagreb County Court noted: “... it is to be noted that [the applicants] correctly consider that they should be reimbursed the costs of the proceedings, since the part of their claim by which they sought the eviction [of I. Kr.] from the flat was successful. However, it is to be noted that the case file shows that they failed to comply with the requirement under section 164 § 3 of the Civil Procedure Act, which provides that a party must set out his or her request for reimbursement of costs at the latest at the end of the closing hearing which precedes the decision on costs. At the hearing held on 12 June 2007, by which the proceedings terminated, [the applicants’] representative sought reimbursement of the costs of the proceedings based on an itemised claim which he was supposed to submit. However, there is no such itemised claim in the case file, and the reimbursement of costs was not sought earlier, while certain procedural actions were being taken. This is the reason why the costs of the proceedings could not be reimbursed to [the applicants].” 14. On 14 April 2010 the applicants challenged the judgment of the Zagreb County Court by lodging a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske). They pointed out that the Zagreb County Court had manifestly incorrectly assessed their request for reimbursement of the costs of the proceedings, overlooking the fact that they had indeed submitted in writing an itemised claim for costs, and had therefore arbitrarily dismissed their complaints in that respect. 15. On 23 September 2010 the Constitutional Court declared the applicants’ constitutional complaint inadmissible, on the grounds that the contested judgment had not concerned the merits of their civil rights or obligations, and as such was not susceptible to constitutional review. This decision was served on the applicants on 18 October 2010. | 1 |
test | 001-164194 | ENG | SRB | COMMITTEE | 2,016 | CASE OF SKORIĆ v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 5. The applicant was born in 1948 and lives in Belgrade. 6. The applicant was employed by “PIM – bagerovanje i vodni transport”, a socially-owned company based in Belgrade (“the debtor”). 7. On 30 March 2005 the Belgrade Second Municipal Court (Drugi opštinski sud u Beogradu) ordered the debtor to pay the applicant specified sums in respect of salary arrears, social security contributions and procedural costs. This judgment became final on the same date. 8. On 22 June 2005 the Belgrade Fourth Municipal Court (Četvrti opštinski sud u Beogradu) issued an enforcement order with regard to the said judgement. 9. On 29 March 2012, acting upon the applicant’s constitutional appeal, the Constitutional Court held that the applicant had suffered a breach of the “right to a trial within a reasonable time” with regard to the enforcement proceedings. The court ordered the acceleration of the proceedings and declared that the applicant was entitled to compensation for the non-pecuniary damage suffered in the amount of EUR 700, converted into the national currency at the rate applicable at the date of settlement. 10. The enforcement proceedings instituted on the basis of the judgment rendered by the Belgrade Second Municipal Court on 30 March 2005 continued and are still pending. | 1 |
test | 001-155626 | ENG | TUR | CHAMBER | 2,015 | CASE OF DİCLE AND SADAK v. TURKEY [Extracts] | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Right to free elections;Stand for election);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 5. Mr Hatip Dicle and Mr Selim Sadak were born in 1955 and 1954 and live in Diyarbakir and Şırnak, respectively. 6. Mr Hatip Dicle and Mr Selim Sadak, who were MPs in the Grand National Assembly of Turkey and members of the DEP political party (Democracy Party), which has since been dissolved by the Constitutional Court, were arrested on 2 March 1994 and 1 July 1994 respectively. 7. On 8 December 1994 they were sentenced by the Ankara State Security Court to fifteen years’ imprisonment for belonging to an illegal organisation, pursuant to Article 168 § 2 of the Penal Code. 8. By judgment of 26 October 1995 the Court of Cassation upheld that judicial decision. 9. On 17 July 2001, adjudicating on an application lodged by the applicants and two other persons, the European Court of Human Rights found, in its judgment in the case of Sadak and Others v. Turkey (no. 1) (nos. 29900/96, 29901/96, 29902/96 and 29903/96, ECHR 2001VIII), a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the State Security Court, as well as a violation of Article 6 § 3 (a), (b) and (d) of the Convention in conjunction with Article 6 § 1 on the grounds that the applicants had not received timely information on the reclassification of the charges against them and had been unable to question the prosecution witnesses or to have them questioned. 10. On 9 December 2004, at the 906th meeting of the Ministers’ Deputies at the Council of Europe, the Committee of Ministers adopted a Final Resolution (ResDH(2004)86) on the judgment of the Court in the case of Sadak and Others, cited above. The relevant passages of that Resolution read as follows: “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as ‘the Convention’), Having regard to the final judgment of the European Court of Human Rights in the Sadak and others case delivered on 17 July 2001 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention; Recalling that the case originated in several applications (nos. 29900/96, 29901/96, 29902/96 and 29903/96) against Turkey, lodged with the European Commission of Human Rights on 17 January 1996 under former Article 25 of the Convention by Mr Selim Sadak, Ms Leyla Zana, Mr Hatip Dicle and Mr Orhan Doğan, four Turkish nationals, and that the Commission declared admissible the complaints relating to the lack of fairness of the criminal proceedings conducted against them, to the lack of independence and impartiality of the State Security Court which convicted them, in 1994, to 15 years’ imprisonment for belonging to an armed organisation, as well as to the discriminatory violation of their right of freedom of expression and freedom of association; Whereas in its judgment of 17 July 2001 the Court unanimously: - held that there had been a violation of Article 6 of the Convention on account of the lack of independence and impartiality of the Ankara State Security Court; - held that there had been a violation of Article 6, paragraphs 3 (a), (b) and (d), of the Convention, taken together with paragraph 1, on account of the fact that the applicants were not notified in good time that the charges against them had been altered and that they were unable to examine or have examined the witnesses against them; - held that it was not necessary to examine the other complaints under Article 6 of the Convention; - held that it was not necessary to examine the complaints under Articles 10, 11 and 14 of the Convention; - held that the government of the respondent state was to pay, within three months, USD 25 000 to each of the four applicants in respect of all heads of damage taken together; USD 10 000 to all the applicants together in respect of costs and expenses, and that simple interest at an annual rate of 6% would be payable on those sums from the expiry of the above-mentioned three months until settlement; - dismissed the remainder of the applicants’ claim for just satisfaction; Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; Having invited the Government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 17 July 2001, having regard to Turkey’s obligation under Article 46, paragraph 1, of the Convention to abide by it; Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken in order to erase the consequences for the applicants of the violations found by the Court and to prevent new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution; Having satisfied itself that, on 16 October 2001, within the time-limit set, the government of the respondent state paid the applicants the sums provided for in the judgment of 17 July 2001; Recalling, as far as individual measures are concerned, Interim Resolution ResDH(2002)59 of 30 April 2002 in which the Committee requested the reopening of the criminal proceedings against the applicants or the adoption of other ad hoc measures to erase the consequences of their unfair conviction, as well as Interim Resolution ResDH(2004)31 of 6 April 2004 by which the Committee, stressing the importance of the presumption of innocence, requested that the applicants be released pending the outcome of their new trial in the absence of any compelling reasons justifying their continued detention; Having noted with satisfaction that, on 14 July 2004, the Court of Cassation quashed the judgment of 21 April 2004 of the Ankara State Security Court confirming the applicants’ previous conviction, that, since June 2004, the applicants are no longer in detention following the suspension of the execution of their sentence, that restrictions on their travel abroad were removed on 16 September 2004, that the applicants are no longer deemed to be convicted and that a new trial is currently pending before the Ankara 11th Criminal Court; Considering that, since the violation found by the European Court concerned the fairness of the incriminated proceedings and not their outcome, it is not necessary to await the outcome of the new trial; Declares, after having examined the information supplied by the Government of Turkey, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.” 11. Meanwhile, on 3 February 2003, Act No. 4793 reforming a number of previous Acts came into force. It added to Article 327 of the Code of Criminal Procedure (CPP) a new paragraph 6 providing for the reopening of criminal proceedings following a finding of a violation by the European Court of Human Rights. 12. On 4 February 2003 the applicants requested the reopening of proceedings on the basis of the judgment delivered by the Court in their case. 13. On 21 April 2004, having ordered the reopening of the proceedings against the applicants pursuant to Article 327 § 6 CPP, the Ankara State Security Court reiterated its judgment of 8 December 1994. In the grounds for the judgment it mainly used the words “accused (convicted)” with reference to the applicants. Occasionally it used the words “convicted (accused)” with reference to Mr Selim Sadak and the word “convicted” with reference to Mr Hatip Dicle. 14. On 8 June 2004 the applicants lodged an appeal on points of law against the 21 April 2004 judgment of the State Security Court. In that appeal they requested their release under Article 38 of the Constitution, relying on their right to the presumption of innocence. They argued that under Article 338 CPP the acceptance of the reopening of proceedings had invalidated the finality of their first conviction. They pointed out that in the event of an application for reopening of proceedings the law was silent on the issue of the execution of the initial sentence and on the conduct of the future proceedings. The applicants submitted that the absence of provisions in that regard did not mean that there was a legal vacuum provided that any proceedings reopened returned to the trial phase. They added that persons being retried no longer had the status of convicted persons, which meant that the restriction on their liberty could no longer be considered as being in “execution” of the sentence initially imposed on them. Consequently, they concluded that the reopening of the proceedings had given them prisoner status, and that they had therefore lost their “convict” status. 15. Subsequently the applicants submitted another brief memorial to the Court of Cassation, arguing, in particular, that by referring to them as “convicted persons” the State Security Court had flouted their right to the presumption of innocence. Indeed, they took the view that since proceedings had been reopened their conviction was no longer res judicata and therefore that they should no longer have been considered as convicted persons and their right to the presumption of innocence should have been respected, pursuant to Article 38 of the Constitution and Article 6 § 2 of the Convention. 16. On 9 June 2004 the Court of Cassation ordered the applicants’ release. 17. By judgment du 13 July 2004 the Court of Cassation quashed the judgment of 21 April 2004, stating that the violations found by the European Court of Human Rights in its judgment of 17 July 2001 had not been remedied. The relevant part of the judgment read as follows: “III. The procedural phase following the reopening of the proceedings It is accepted, in both legal practice and legal theory, that where an application for a reopening of proceedings pursuant to the ... Code of Criminal Procedure is accepted, the investigation which must be conducted [after the reopening of proceedings] is independent and distinct from the previous investigation, and the decision to reopen the proceedings provides the basis for that fresh investigation. As stated in the judgment of the Plenary Assembly of the Court of Cassation of 5. 11. 1990 (E. 8/220 and K. 258), the hearings to be organised [in the framework of the new trial] are not the continuation of those held previously, and all the procedural rules must be applied to those hearings as if the case were being tried for the first time. The assessment of new evidence, of the nature of the offence and of the sentencing in the framework of the hearings to be held when the proceedings are reopened must be conducted quite independently and separately from the assessment during the initial proceedings, and new pieces of evidence ... may be gathered and examined. IV. Conclusion ... 2 – The proceedings as reopened under the relevant decision is completely independent from the previous proceedings; in accordance with that principle, all the legal rules of procedure must be applied to the new hearings, the indictment must be read out, the reclassification of charges must be notified and fresh interrogations must be conducted ...” 18. The State Security Courts having in the meantime been abolished under Act No. 5190, the Court of Cassation referred the case to the Ankara Assize Court (“the Assize Court”). 19. On 1 June 2005 the new Turkish Penal Code came into force. The offence of belonging to an armed band formerly set out in Article 168 is now governed by Article 314 of the new Penal Code. 20. On 9 March 2007, having taken note, in particular, of the Court of Cassation’s argument that the procedure for reopening the trial was completely independent from the initial one, the Assize Court upheld the conviction of 8 December 1994. It nevertheless reduced the applicants’ sentence to a prison term of seven years and six months pursuant to Article 314 § 2 of the Penal Code. In the reasoning of its decision the court used the words “accused (convicted person)” with reference to the applicants. 21. On 27 February 2008 the Court of Cassation upheld that judgment. 22. Meanwhile, on 19 May 2007, the Higher Electoral Council had issued a decision setting out the conditions to be met by candidates – including independent candidates with no party political affiliation – standing for the parliamentary elections of 22 July 2007. The relevant part of that decision read as follows: “1. ... After serving final sentences ... [the candidate] must, pursuant to section 13/A of the Law on the register of police records, provide, for each conviction, a document certifying that he has recovered his civil rights and that the conviction has become res judicata. ... 3. Pursuant to the Penal Code ... save in cases of negligence, persons who have been sentenced to a prison term of twelve months or more or who have been convicted of an offence, pursuant to section 11 (f) of Act No. 2839 on the election of members of parliament and whose prison sentence has become res judicata, must provide a document certifying that they have, or are deemed to have, served their sentence.” 23. On 10 May 2007, Mr Hatip Dicle applied to the Ankara Assize Court for a document establishing that he had indeed served his full prison term. 24. In its 15 May 2007 decision the Assize Court held as follows: “In applying to the convicted person the provisions of Act No. 5237 on the entry into force of [the Penal Code] of 1 June 2005, it was decided to sentence Mehmet Hatip Dicle to a prison term of seven years and six months, to apply section 53 of Act No. 5237 and to deduct from that sentence the period which he had served in detention. The State Prosecutor has filed an appeal on points of law against that judgment, but the latter has not yet become final. The convicted person Mehmet Hatip Dicle, whose sentence was commuted to seven years and six months pursuant to the provisions [of the Penal Code], was remanded in custody from 2 March 1994 to 17 March 1994, and imprisoned from 17 March 1994 to 9 June 2004 as a detainee and then as a convicted person. In the light of the foregoing considerations, the final sentence to be imposed on Mehmet Hatip Dicle for belonging to an illegal armed organisation is a prison term of fifteen years ... In order to serve that sentence, he was held in prison for the aforementioned periods. Pursuant to the provisions of the Penal Code [in respect of the applicant], this court delivered judgment on 9 March 2007 (E. 2004/343 and K. 2007/67) reducing the fifteen-year prison sentence to a term of seven years and six months. Since that judgment is not yet final it has not become res judicata. Consequently, it is impossible to indicate the date on which the sentence was completed. However, [it may be said that] the sentence served by the convicted person up to the date of his release corresponds to a sentence of seven years and six months... On those grounds: This court cannot lawfully adjudicate on the application lodged by the convicted person Mehmet Hatip Dicle for a document certifying that he has served the full sentence imposed on him, firstly because the decision to reduce his sentence to seven years and six months has not yet become final, and secondly because the [initial] judgment sentencing him to a fifteen-year term did become res judicata and he was released on account of the stay of execution of that sentence.” 25. On 1 and 4 June 2007 Mr Hatip Dicle and Mr Selim Sadak submitted their names as independent candidates for the parliamentary elections of 22 July 2007 in the constituencies of Diyarbakır and Şırnak respectively. They provided, inter alia, copies of their police records mentioning their 8 December 1994 conviction by the State Security Court and the decision given by the Assize Court on 15 May 2007. 26. By decision of 9 June 2007 the Higher Electoral Council rejected the applicants’ candidacies on the grounds that their criminal convictions had rendered them ineligible. | 1 |
test | 001-151049 | ENG | DEU | ADMISSIBILITY | 2,015 | PEREZ v. GERMANY | 4 | Inadmissible | Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applicant, Ms Amalia Perez, is a Spanish national, who was born in 1950 and lives in Madrid. She was represented before the Court by Mr E.P. Flaherty, a lawyer practising in Geneva. 2. The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Mrs K. Behr, of the Federal Ministry of Justice. 3. The Government of the Kingdom of Spain, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), did not indicate that they wished to exercise that right. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant is a former staff member of the United Nations (the “UN” or the “Organisation”). She joined the United Nations Development Programme (the “UNDP”) in New York in 1970. She was promoted several times and, in 1998, moved to the United Nations Volunteer Programme (the “UNV”), Headquarters Administration, in Bonn, Germany. UNV is represented worldwide through the offices of the UNDP. The applicant served as a senior manager with UNV and resided in Germany. 6. Until 1999 the applicant’s professional performance had consistently been rated by consecutive supervisors in her annual appraisal reports as exceeding or fully satisfying the requirements of her respective job. However, in 1999, as well as in 2000 and 2001, a new supervisor found that she had not met the performance expectations. 7. As a consequence of the negative appraisal reports the applicant was included in the 2002/2003 UNV reassignment exercise with a view to her redeployment. By a letter of 8 July 2002, she was informed by the UNV human resources department that she had not been selected for any post within the scope of the reassignment exercise and was given a time-limit of several months to search herself for an alternative placement in the UNDP or elsewhere in the Organisation. 8. On 17 July 2002 the applicant filed a rebuttal for an internal administrative review of the negative appraisal reports for the years 1999, 2000 and 2001 with a rebuttal panel (the “Rebuttal Panel”) composed of UNDP staff members jointly selected by the staff council and management. 9. On 1 November 2002 UNDP management decided that the applicant should be placed on annual leave during the period from 1 November to 4 December 2002. As the applicant was unable to find a post within the Organisation and following fruitless attempts by UNDP to agree on possible conditions for a termination of the applicant’s employment contract, she was given formal notice of termination by a letter dated 3 December 2002; her dismissal was to be effective as of 4 March 2003. The termination was reasoned with intended staff reduction and suppression of posts. 10. On 20 January 2003 the applicant requested an administrative review of the decision to dismiss her with the UN Secretary-General (the “Secretary-General”) and asked to suspend her dismissal. 11. On 31 January 2003 the Secretary-General, following the recommendation by the UN Joint Appeals Board (the “JAB”) of 29 January 2003, granted the applicant’s request for a suspension of her dismissal pending completion of the rebuttal process in relation to her appraisal reports, which had commenced on 22 January 2003. 12. On 10 June 2003 the Rebuttal Panel issued its report and concluded that the applicant’s performance ratings be maintained for the years 1999 and 2001 but found that it was not in a position to reach a final conclusion with respect to the rating for 2000 due to management’s failure to provide the relevant documentation. 13. On 29 August 2003 the Secretary-General, contrary to a recommendation by the JAB dated 27 August 2003, decided not to accept a further request by the applicant to suspend her dismissal. 14. The applicant’s employment ended on 31 August 2003. 15. On 7 March 2003 the applicant, represented by counsel, had lodged an appeal with the JAB challenging the decision to terminate her permanent appointment as well as the decision to place her on annual leave during the period from 1 November to 4 December 2002. 16. In its report on the merits of the applicant’s appeal dated 28 February 2005, the JAB found that following the applicant’s dismissal UNV management had immediately hired a staff member under a temporary assistance contract to perform the applicant’s functions and that her post had thus in reality not been suppressed but in fact had been reclassified to a higher grade. The JAB noted that it had not been established that UNDP management had taken action to assist the applicant to improve her work performance from 1999 onward. It further held that while the applicant had been placed in the reassignment exercise for 2002/2003, UNDP management had failed to make sufficient efforts to actively assist her in finding alternative employment within the Organisation. As regards the decision to place the applicant on annual leave from 1 November to 4 December 2002, the JAB noted that even though the applicant’s rebuttal process regarding her appraisal reports had been pending since 17 July 2002, the case had not yet been assigned to a Rebuttal Panel at the time she was placed on annual leave in November 2002. It had been only on 22 January 2003 and only after the applicant had applied for suspension of her dismissal, that the Organisation acknowledged that the rebuttal process had been delayed and started the rebuttal proceedings. In the JAB’s opinion it had therefore not been in accordance with the applicable staff rules to penalise the applicant by having to use her annual leave balance in November 2002. 17. The JAB recommended that the applicant be granted monetary compensation equivalent to six months’ net base salary for the delay in the rebuttal process as well as for the failure on the part of the Organisation to make a reasonable effort to find a suitable alternative post for her. It also recommended that annual leave wrongfully charged for the period of 1 November to 4 December 2002 be credited to her leave balance. 18. On 3 August 2005 the applicant was informed of the Secretary-General’s decision to credit her with her annual leave for the period from 1 November to 4 December 2002 and to grant her compensation in an amount of three months’ net base salary instead of the six months recommended by the JAB. 19. On 5 July 2005 counsel for the applicant lodged an appeal with the United Nations Administrative Tribunal (the “UNAT”) against the Secretary-General of the UN, requesting the tribunal to find, inter alia, that she be reinstated and awarded full compensation for losses incurred since termination of her employment on 31 August 2003, such as social security and other benefits, as well as punitive damages. 20. By a letter to the UNAT of 25 May 2007, the applicant further asked to be granted access to certain documents submitted by UNDP in the proceedings before the Rebuttal Panel and referred to by the latter in its report of 10 June 2003 but which she had allegedly never had an opportunity to examine. 21. The UNAT rendered its judgment on 28 September 2007 (No. 1345) following a written procedure. It pointed out that while the applicant’s rebuttal had been filed on 17 July 2002, the internal rebuttal proceedings had only commenced on 22 January 2003 following the applicant’s request of 20 January 2003 to suspend her dismissal and had ended on 10 June 2003. The proceedings had thus taken eleven months, a delay that, as acknowledged by the Organisation, was unacceptable. The UNAT further endorsed the JAB’s finding that the UNDP administration had failed to make every bona fide effort to secure a new post for the applicant. It ordered the Organisation to pay the applicant further compensation in the amount of three months’ net base salary in addition to the compensation she had already received and rejected the remainder of the applicant’s pleas. The applicant’s request for access to the aforementioned specific documents was not granted by the UNAT. 22. The United Nations were founded in 1945 and currently have 193 Member States. Germany was admitted to membership in the United Nations on 18 September 1973. The United Nations Development Programme (UNDP) and the United Nations Volunteers Programme (UNV) are subsidiary organs of the UN established by the Organisation’s General Assembly. 23. Pursuant to Article 105 § 1 of the Charter of the United Nations the Organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes. 24. The Convention on the Privileges and Immunities of the United Nations (the “General Convention”) of 13 February 1946, to which Germany has been a party since 5 November 1980, provides: “Article II Section 2. The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity ... Article VIII Section 29. The United Nations shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; ...” 25. The General Convention is complemented by the Agreement between the UN and the Federal Republic of Germany concerning the headquarters of the UNV (the “Headquarters Agreement”) of 10 November 1995, which stipulates in its Article 4 that the General Convention shall apply to the UNV. In addition, it contains in its Article 9 § 1 and Article 26 § 1 (a) provisions similar to sections 2 and 29 (a) of the General Convention respectively. 26. Under the UN internal appeals system in force at the time of the dispute at issue, UN staff members who considered that a decision by the UN administration had violated the terms of their employment could seek an administrative review of such decision by the UN Secretary-General. If the Secretary-General did not reply within the allotted time-limit as stipulated in the relevant regulations or if his reply was unfavourable, the staff member could submit an appeal to the Joint Appeals Board (the “JAB”). The JAB, composed of three staff members, following an examination of the case, made a non-binding recommendation to the Secretary-General who took the final decision on the appeal. 27. The Secretary-General’s final decisions could then be challenged before the United Nations Administrative Tribunal (the “UNAT”). The UNAT was established in 1950 by the General Assembly, for the purpose of resolving employment-related disputes between United Nations staff and the Organisation. 28. The judges of the UNAT, who had to possess judicial experience in the field of administrative law, were appointed by the General Assembly for four years and could be reappointed once. No member of the UNAT could be dismissed by the General Assembly unless the other members were of the unanimous opinion that he or she was unsuited for further service (Article 3 of the UNAT’s Statute, adopted by the General Assembly by resolution 351 A (IV) on 24 November 1949 and as applicable at the time of the dispute at issue). 29. As to the proceedings before the UNAT, each written statement and additional document submitted to the UNAT at the request of its president was to be communicated to the other parties, unless at the request of one of the parties and with the consent of the other parties, the UNAT decided otherwise (see Article 10 of the Rules of the Administrative Tribunal of the United Nations adopted by the Tribunal on 7 June 1950, as amended and applicable at the time of the dispute at issue). An applicant could present his case before the Tribunal in person, in either the written or oral proceedings. He could also designate a staff member of the United Nations to represent him, or could be represented by counsel authorized to practice in any country a member of the organization concerned (Article 13 of the Rules of the UNAT). Oral proceedings were to be held if the presiding member so decided or if either party so requested and the presiding member agreed (see Article 15 § 1 of the Rules of the UNAT). 30. If the Tribunal found that an application was well-founded, it had to order the rescinding of the decision contested. At the same time, it had to fix the amount of compensation to be paid to the applicant for the injury sustained should the Secretary-General decide, in the interests of the UN, that the applicant should be compensated without further action being taken in his or her case. Such compensation should, as a rule, not exceed the equivalent of two years’ net base salary of the applicant (see Article 10 § 1 of the Statute). 31. In January 2006 the UN Secretary-General established the Redesign Panel on the United Nations system of administration of justice (the “Redesign Panel”) in reply to a request by the UN General Assembly expressed in its resolution 59/283 to establish a panel of external, independent experts to review and possibly redesign the system of administration of justice at the United Nations. The Redesign Panel issued its report on 28 July 2006. The relevant parts of the report read as follows: “Summary ... The Redesign Panel found that the United Nations internal justice system is outmoded, dysfunctional and ineffective and that it lacks independence ... II. Overview 5. The Redesign Panel found that the administration of justice in the United Nations is neither professional nor independent. The system of administration of justice as it currently stands is extremely slow, underresourced, inefficient and, thus, ultimately ineffective. It fails to meet many basic standards of due process established in international human rights instruments ... 9. ... establishing a professional system of internal justice is essential if the United Nations is to avoid the double standard – which currently exists – where the standards of justice that are now generally recognized internationally and that the Organization pursues in its programmatic activities are not met within the Secretariat or the funds and programmes themselves. These international standards include the right to a competent, independent and impartial tribunal in the determination of a person’s rights, the right to appeal and the right to legal representation. 10. ... Hearings, too, are a clear requirement in international standards whenever there are disputed issues of fact. ... V. The Formal system 71. A number of the difficulties within the formal justice system stem from the Statute and the jurisprudence of UNAT. By article 10.1 of its Statute, UNAT may order specific performance. However, it is required at the same time to fix compensation (normally limited to two years’ net base salary), which the Secretary- General may decide to pay as an alternative if that is considered to be in the interests of the Organization. The power of the Secretary-General to choose between specific performance and the payment of limited compensation can, and sometimes does, result in inadequate compensation, particularly in cases of wrongful termination or non-renewal of contract. A system that cannot guarantee adequate compensation or other appropriate remedy is fundamentally flawed. More significantly, a system that does not have authority to finally determine rights and appropriate remedies is inconsistent with the rule of law. 72. The decisions of UNAT are not always consistent, and its jurisprudence is not well developed. In particular, it does not have a coherent jurisprudence as to the duties of an international organization to its staff. Thus, there is a widespread view, which is largely correct, that the formal justice system affords little, if any, protection of individual rights, such as the right to a safe and secure workplace or the right to be treated fairly and without discrimination. VI. Legal representation 100. The Panel of Counsel, which was formally established in 1984 and which has the responsibility to provide legal assistance and representation to United Nations staff members in proceedings within the internal justice system, is extremely underresourced and is not professionalized. ... 106. The Redesign Panel notes that legal assistance to the management of the Organization is undertaken not by volunteers without legal training, but by a cadre of professional lawyers in the Department of Management and the Office of Legal Affairs. This disparity in legal resources available to the management and staff members has created an egregious inequality of arms in the internal justice system.” 32. In 2007, based on the recommendations of the Redesign Panel and acting on a proposal by the Secretary-General, the General Assembly decided to introduce a new system for handling internal disputes and disciplinary matters in the United Nations. The new two-tier judicial system with a United Nations Dispute Tribunal and a United Nations Appeals Tribunal became operational on 1 July 2009. 33. The Federal Constitutional Court has jurisdiction to deal with constitutional complaints which concern acts of a “public authority” (see Article 93 § 1 no. 4 (a) of the Basic Law). Under the Federal Constitutional Court’s well-established case-law, this comprises not only acts of German public authorities, but also acts of supranational organisations which concern the beneficiaries of fundamental rights in Germany (see, for instance, Federal Constitutional Court, file no. 2 BvR 2134, 2159/92, judgment of 12 October 1993, Collection of the decisions of the Federal Constitutional Court (BVerfGE), vol. 89, pp. 155 ss., 174 s. (Maastricht judgment); file no. 2 BvR 1458/03, decision of 3 July 2006, § 12 (of the internet version)). 34. However, the Federal Constitutional Court only exercises its jurisdiction over supranational acts of international organisations under the condition that the complainant sufficiently substantiated that the level of protection of fundamental rights by the international organisation was generally and manifestly below the level required by the Constitution (see, for instance, Federal Constitutional Court, file no. 2 BvR 197/83, decision of 22 October 1986, BVerfGE, vol. 73, pp. 339 ss., 387 (Solange II); file no. 2 BvL 1/97, decision of 7 June 2000, BVerfGE, vol. 102, pp. 147 ss., 164; file no. 2 BvR 2368/99, decision of 4 April, §§ 9 ss.; file no. 2 BvR 1458/03, decision of 3 July 2006, § 21). 35. The Federal Constitutional Court’s decision of 28 November 2005 (file no. 2 BvR 1751/03) concerned the decision of the European Patent Office not to admit the applicant as a representative before that Office as he had not passed the ability test. 36. The Federal Constitutional Court declined to consider the applicant’s constitutional complaint. It found that the complaint was directed against an act of a “public authority” as the decision at issue had a direct effect on a beneficiary of fundamental rights in the German legal order. 37. However, the level of protection of fundamental rights guaranteed by the European Patent Convention satisfied the requirements which had to be met under the Basic Law in case of a transfer of sovereign powers. The applicant had failed to substantiate sufficiently that the level of human rights protection under the European Patent Convention in respect of admissions as a representative was generally and manifestly below the level required by the Constitution. The same applied if a duty of protection on the part of the State was assumed as the applicant would also have been obliged to demonstrate that there was a structural lack of legal protection which the Federal Government should have addressed. The Federal Constitutional Court therefore did not exercise its jurisdiction. 38. The Federal Constitutional Court’s decision of 22 June 2006 (file no. 2 BvR 2093/05 – the impugned decision in the case of Klausecker v. Germany, no. 415/07) concerned the European Patent Office’s decision not to recruit the applicant. 39. The Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the European Patent Office’s decision. It found that the complaint, in which the applicant had argued, in particular, that his constitutional right of access to court had been breached, was inadmissible. A constitutional complaint only lay against acts of a “public authority” and the applicant had failed to demonstrate that such an act was at issue in his case. 40. The Federal Constitutional Court confirmed that the European Patent Organisation had immunity from the jurisdiction of the domestic courts within the scope of its official activities under the European Patent Convention. It further reiterated that acts of a “public authority” were not only acts of German State authorities. The term also covered acts of supranational authorities, such as the European Patent Organisation and its executive organ, the European Patent Office, which had an impact on the beneficiaries of fundamental rights in Germany. 41. However, the decision of the President of the European Patent Office here at issue could not be qualified as an act which had an impact on the beneficiaries of fundamental rights in Germany because it did not have any external legal effects within the German legal order. Measures relating to the relationship between the international organisation and its staff or candidates for posts, as a rule, only concerned the internal sphere of the organisation. This conclusion was not altered by the fact that the applicant was a German national living in Germany who, had he been employed, would have worked in Germany. The court conceded that the applicant’s recruitment would have been an act of a supranational nature which, changing his legal status, would have had a concrete effect within the German legal order. The refusal to employ him did not, however, have such an effect. The Federal Constitutional Court’s jurisdiction did not extend to such internal measures. 42. The Federal Constitutional Court further found that in view of the inadmissibility of the applicant’s constitutional complaint, it did not have to decide the question whether the level of protection in respect of staff issues within the European Patent Organisation complied with the standards set by the Basic Law, which had to be observed in the event of a transfer of sovereign powers. 43. The Federal Constitutional Court’s decision of 3 July 2006 (file no. 2 BvR 1458/03) concerned the temporary denial of access of the complainants, staff members of the European Patent Office, to the internal e-mail system of that organisation. 44. The Federal Constitutional Court dismissed the complaint as inadmissible as it had not been shown that it concerned an act of a “public authority”. It stressed that such acts included acts of supranational organisations to which Germany had transferred sovereign powers and which had direct legal effects within the German legal order, that is, which altered the legal position of individuals within it. However, the impugned measure did not alter the complainants’ position in the German legal order. It further spoke against the existence of an act of a “public authority” that the European Patent Office enjoyed immunity from jurisdiction in respect of employment-law disputes. 45. Furthermore, as the Federal Constitutional Court had previously found (it referred to its decision of 28 November 2005, file no. 2 BvR 1751/03, see paragraphs 35-37 above), there could be a duty of protection incumbent on the State (Schutzpflichtenansatz) where the internal sphere of an international organisation was affected. In that sphere, legal protection could only be granted if the German legislature and the Federal Government used means that were suitable for ensuring that any conditions within the intergovernmental organisation which were contrary to fundamental rights were removed. The failure of the German State authorities to take action in connection with the final decision on the impugned act would then constitute an act of a “public authority”. 46. The complainants had, however, failed to make any submissions in this respect. Just as in the sphere of an organisation’s supranational powers, it was necessary for complainants to claim in a substantiated manner that there was a structural deficiency in legal protection within the organisation. The Federal Constitutional Court further noted that it had previously confirmed that the system of fundamental rights protection within the European Patent Convention and in the proceedings before the Administrative Tribunal of the International Labour Organisation generally complied with the standards of the Constitution. | 0 |
test | 001-155820 | ENG | LTU | CHAMBER | 2,015 | CASE OF KARDIŠAUSKAS v. LITHUANIA | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 5. The applicant was born in 1979. 6. On 3 January 2003 the applicant started serving a sentence in the Pravieniškės Prison after his conviction for rape and theft. 7. In subsequent separate proceedings the applicant and his three accomplices were found guilty of murder and robbery committed as part of an organised group in 2000. A final decision in that case was adopted in 2013 by the Supreme Court. The applicant was sentenced to eight years’ imprisonment. That sentence was added to the applicant’s prior conviction, and a final sentence of thirteen years’ imprisonment was imposed. 8. On 25 May 2003 the applicant was found beaten up and unconscious in the Pravieniškės Prison after being attacked by other prisoners. A pre-trial investigation into the incident was opened the same day by the Pravieniškės Prison authorities, who informed the Kaišiadorys prosecutor about it. Immediately after the event an investigator of the prison inspected the area where it had taken place. 9. The same day the applicant was taken injured and unconscious to the Prison Department’s Hospital (Laisvės atėmimo vietų ligoninė) and then to the Emergency Hospital of Vilnius University (Vilniaus greitosios pagalbos universitetinė ligoninė), where he underwent an operation. Five days later he was transferred back to the Prison Department’s Hospital. 10. On 26 May 2003 the investigators ordered that the applicant be examined by a forensic medical expert. According to the medical record, the applicant had sustained beatings (muštinė žaizda) to the head and haematoma. 11. On 5 June 2003 the applicant’s mother wrote to the State authorities that she had learned about the incident only a week later, when she wanted to visit her son in the Pravieniškės Prison. She alleged that the prison was dangerous and demanded that those responsible for the assault on her son be found and punished. 12. By a letter of 13 June 2003 the Kaišiadorys prosecutor informed the applicant’s mother that a pre-trial investigation into the assault on her son had been opened on the day of the incident. She was also informed that a medical examination had been ordered to establish the severity of the injury. 13. On 1 July 2003 the Pravieniškės Prison investigator wrote to the Kaunas police that the applicant’s mother was avoiding coming to the prison and testifying and he therefore requested the police to question her as a witness; it was indispensable to ask her whether her son had ever told her about having disagreements with other prisoners or whether he had received threats. The police were also asked to employ operational measures to identify suspects and determine the circumstances surrounding the severe bodily injury (sunkus sveikatos sutrikdymas) of the applicant. 14. On 10 July 2003 the applicant was granted victim status by the investigators. It was explained to him that in that status he could submit requests or lodge complaints, under Article 28 of the Code of Criminal Procedure (see paragraph 43 below). On 10 July and 18 August 2003 the applicant was questioned about the incident. However, he stated that, given his state of health, he did not remember how he had been attacked and injured. 15. According to a medical certificate of 28 August 2003, a severe fracture of the skull had occurred as a result of what the doctors described as two blows to the applicant’s head. He had been unconscious for some time just after the assault, and then neurosurgery had been carried out. The doctors concluded that the applicant had sustained a serious head injury and would need a long period of rehabilitation. In August 2003 the applicant was declared Category II disabled, and in March 2004 he was declared Category III disabled (a less severe level of disability). As the applicant’s state of health improved, in February 2008 he was declared able to work at ninety percent. 16. On 28 August 2003 the applicant was discharged from the Prison Department’s Hospital and returned to the Pravieniškės Prison for outpatient health care. Afterwards, on different dates, the applicant spent time in Lukiškės Remand Prison, Pravieniškės Prison and the Prison Department’s Hospital. 17. On 10 September 2003 the applicant testified that on the day of the incident he was taking exercise when another prisoner approached him and asked him to go to the living quarters of the Pravieniškės Prison Wing no. 5. They went to a place where there were other prisoners, among whom the applicant noticed a person he had known earlier from the time outside the prison. That person was holding a knife, and hit (smogė) the applicant on the head. The applicant described him as a tall, well-built man of 40-45, who had previously been convicted of murder. The applicant was confident that he could recognise his attacker. On 25 September 2003 the applicant identified from photographs of forty three persons a suspect who appeared to be a certain E.J. 18. A report of 11 November 2003 from the Pravieniškės Prison showed that E.J. had a conviction for robbery under Article 272 of the Criminal Code, and had been sentenced to three years of imprisonment. According to that report, E.J. had left Pravieniškės Prison on 5 September 2002 for Lukiškės Remand Prison and had come back to the Pravieniškės Prison on 29 May 2003, which was four days after the incident. An extract from E.J.’s personal file indicates that E.J. arrived at Lukiškės Remand Prison on 5 September 2002 and left that prison on 29 May 2003. 19. On 19 December 2003 the Pravieniškės Prison authorities concluded, on the basis of the 11 November 2003 report, that on the day of the incident E.J. was not being held in the Pravieniškės Prison but was in Lukiškės Remand Prison in Vilnius. 20. According to the Pravieniškės Prison’s internal investigation report of 19 December 2003, the authorities questioned twenty eight witnesses, including prisoners, operational investigation measures were ordered, medical examinations were carried out and photographs of possible suspects were shown to the applicant and witnesses. 21. By a letter of 25 February 2004 to the Kaunas police, the Pravieniškės Prison authorities reiterated their request that suspects be identified. The letter also mentioned that, according to the medical report, the applicant had sustained two blows to the head with blunt objects (sužalojimai padaryti veikiant bukais daiktais – dviem smūgiais). The prison authorities also observed that the applicant’s testimony lacked consistency (apklausiamas keičia parodymus) and that he claimed not to remember the circumstances of the incident. 22. On 26 March 2004 the Kaunas police informed the Pravieniškės Prison investigators that no reliable information enabling identification of the perpetrators of the assault on the applicant had been established. 23. On 10 May and 13 July 2005 the Pravieniškės Prison authorities requested the Kaišiadorys prosecutor and the Kaunas and Plungė police authorities to order additional operational measures, inter alia, to question three witnesses – inmates of the Pravieniškės Prison at the time when the applicant was injured. The last letter ended with a request for the criminal police “to identify persons who had committed the impugned crime and to find the crime weapon” (nustatyti asmenis, padariusius minėtą nusikaltimą ir surasti nusikaltimo padarymo įrankius). 24. On 15 July 2005 the prosecutor ordered the Kaunas police to carry out the aforementioned actions. The prosecutor also informed the applicant’s mother that the criminal investigation file had been examined by a prosecutor. Twelve days later, the Plungė police authorities sent the report of questioning to the Pravieniškės Prison investigators. 25. Considering that the process of investigation was not producing any results, in February 2007 the applicant’s mother objected to the way the investigation in the case was being conducted and asked the prosecutors to find her son’s attackers. 26. By a letter of 27 April 2007 the prosecutor dismissed the complaint by the applicant’s mother that the criminal investigation was not effective. According to the prosecutor, even though a number of investigative actions had been carried out, it was not possible to identify the persons who had injured the applicant. It was explained to the applicant’s mother that, if she disagreed with the prosecutor’s conclusion, she could appeal to a court. 27. On 7 August 2008 the Kaišiadorys district prosecutor refused to comply with a request by the applicant’s mother to start an investigation into whether the Pravieniškės Prison authorities had failed to act and to protect her son’s safety and health in prison. In the decision, the prosecutor wrote: “The [applicant’s mother] cites matters which are relevant to the criminal case concerning the injury to M. Kardišauskas. A pre-trial investigation into this incident is already pending. In the event that a failure of the officers to perform their official duties is established, the question of their criminal responsibility will be decided subsequently. The question of pecuniary and non-pecuniary damage [caused to the applicant] will also be decided within the current pre-trial investigation, once a person or persons who have committed the crime, that is, injured M. Kardišauskas, are identified. If then, due to his state of health or for other reasons, M. Kardišauskas is unable to submit a civil claim on his own account, the prosecutors will have to submit such a claim, as prescribed by Article 117 of the Code of Criminal Procedure.” The decision stated that it could be appealed against within fourteen days to the pre-trial investigating judge of the Kaišiadorys district court. 28. According to a report by the Pravieniškės Prison authorities of 28 December 2007, even though prisoners who had served in that prison as of 2003 had been questioned about the attack on the applicant, no relevant information had been obtained. 29. On 19 April 2010 the prosecutor informed the applicant’s mother that no suspect had been identified during the investigation. 30. The pre-trial investigation was still pending on 7 June 2012, as was later observed by the Supreme Administrative Court in the administrative case for damages (see paragraphs 33-40 below). 31. In reply to a request for information by the applicant’s mother, on 9 January 2013 the prosecutor wrote to her that the pre-trial investigation was still pending, no suspect had been identified and no procedural decision had been taken in the criminal case. 32. In their observations of 4 November 2013 on the admissibility and merits of the case, the Government stated that the criminal investigation remained open until new circumstances came to light. On 20 January 2014 the Court received observations from the applicant, in which he noted that the criminal investigation was still continuing. 33. In April 2010 the applicant was granted State-guaranteed legal aid and on 18 October 2010 he instituted proceedings against the State. 34. Firstly, the applicant claimed damage to his health resulting from the failure of the prison authorities to protect him from ill-treatment. To this claim the Pravieniškės Prison administration responded that the applicant had never indicated that he was in danger in prison. 35. Secondly, in the rectified complaint of 29 November 2010 the applicant criticized the authorities for not having established who his assailant was. On 3 February 2011, when addressing the Kaunas Regional Administrative Court in writing, the applicant further argued that the authorities had failed to act diligently and to take all necessary measures so that the crime was solved quickly. 36. During those proceedings the applicant contended that the introduction of his civil claim for damages in respect of the injury had been delayed for objective reasons, namely the state of his health, his continuing stay in prison, the failure of the investigating authorities to indicate suspects and to inform the applicant in a timely fashion of the possibility of submitting such a claim and of his right to legal aid. 37. On 23 March 2011 the Kaunas Regional Administrative Court dismissed the applicant’s claim. The court established that the applicant had been injured on 25 May 2003, and the statutory time-limit to lodge a claim for damages caused by health impairment was three years. The applicant had lodged his claim only on 18 October 2010, that is, more than seven years after the injury had been sustained. 38. The applicant appealed. On 14 November 2011 the Supreme Administrative Court remitted the case to the first-instance court to verify whether part of the applicant’s claim that the pre-trial investigation had not been effective was also time-barred. 39. On 14 February 2012 Kaunas Regional Administrative Court refused to examine the applicant’s claim for damage caused to his health on the ground of prescription. The court established that as early as 2004 the applicant’s health had improved; he had been released from hospital and had returned to prison. The applicant had relatives to assist him in making use of his rights, and he could also have asked for free legal aid in a timely fashion. Lastly, it was only the applicant’s own unfounded belief that a court action for damages against the Pravieniškės Prison was not possible before the person who had attacked him was identified. 40. By a final decision of 7 June 2012 the Supreme Administrative Court dismissed the claim due to the expiry of the three-year prescription period applicable to claims relating to damage to health. The court rejected the applicant’s arguments that he had been misled by the prosecutors investigating the incident, who had convinced him that he would be able to lodge a civil claim for damages only after the person responsible for his injury was identified. The applicant’s contention that his health had prevented him from submitting the claim in time was likewise dismissed. The Supreme Administrative Court also observed that the applicant could have appealed against the investigating officers’ or prosecutor’s actions, if he considered them improper. However, the applicant had not made use of any of his rights under Article 28 of the Code of Criminal Procedure. The pre-trial investigation was not yet over. | 0 |
test | 001-142326 | ENG | ALB | ADMISSIBILITY | 2,014 | DYBEKU v. ALBANIA | 4 | Inadmissible | Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant, Mr Ilir Dybeku, is an Albanian national, who was born in 1971 and is serving a prison sentence in the Kruja prison, a special establishment for mentally ill prisoners. He is represented before the Court by his father, Mr Shyqyri Dybeku. summarised as follows. 3. On 25 September 2006 the applicant lodged an application with this Court (no. 41153/06). The applicant, who suffered from chronic paranoid schizophrenia, was convicted of voluntary homicide and sentenced to life imprisonment by a final decision of the Supreme Court of 2 March 2004. The domestic courts relied on a medical report to conclude that the applicant could stand trial. The applicant was serving his sentence in the Peqin high security prison, when he complained before this Court about the inappropriate conditions of detention, the inadequacy of the medical treatment and the unfairness of domestic proceedings. 4. On 18 December 2007 the Court delivered its judgment in that case (Dybeku v. Albania, no. 41153/06, 18 December 2007). It found a breach of Article 3 of the Convention: the applicant’s state of health was such that he had been subjected to inhuman and degrading treatment on account of the inappropriate conditions of detention and the inadequacy of the medical treatment he had received since 2002. No other violation having been found, the Court further made general indications under Article 46 of the Convention to the effect that the Government should “secure appropriate conditions of detention and adequate medical treatment, in particular, for prisoners, like the applicant, who need special care owing to their state of health” (paragraph 64 of the judgment). 5. On 13 June 2008 the applicant was transferred to the Kruja prison, a special establishment for mentally ill prisoners. 6. On 6 February 2009 the Kruja special establishment informed the applicant’s family that the applicant was under continuous supervision by doctors, nurses as well as by a psychiatrist. He was given medical treatment every day. This was supported by extracts of medical records for a defined period of time. 7. On 1 February 2010 the Ministry of Justice informed the applicant’s father that the applicant received psychiatric treatment in addition to medical treatment. Biochemical tests and imaging examination had also been carried out. The Ministry invited the father to appoint a psychiatrist of his choosing in accordance with the law. 8. On 29 October 2010 the Ministry of Justice informed the applicant’s father that the applicant was undergoing necessary treatment at the Prisons’ Hospital Centre in Tirana. X-ray computed tomography scan (CT scan) of the head as well as magnetic resonance imaging (MRI) had been carried out. 9. On 24 November 2010 the Kruja special establishment provided an update of the applicant’s health, stating that the applicant was quiet, not showing any psychiatric disorders, had regularly received medicines (risperidone 2mg 2x1 tablet, parkopan 5 mg 2x1 tablet and diazepam 5 mg 2 tablets) and psychiatric treatment and had been taken to the Prisons’ Hospital Centre in Tirana, as necessary. 10. On 20 February 2013 the Kruja special establishment confirmed to the applicant’s father that the applicant received risperidone 2mg 2x1 tablet and parkopan 5 mg 2x1. 11. On 12 September 2009, relying on the Dybeku judgment (cited above), the applicant sought to review his conviction. 12. On 30 April 2010 the Supreme Court rejected the request as raising no grounds of appeal. 13. On an unspecified date, most likely in 2011, the applicant appealed against the prosecutor’s decision not to institute criminal proceedings against the doctors, whose medical report had been relied upon by the Supreme Court in 2004 for his conviction. 14. On 20 April 2011 the Durrës Court of Appeal upheld a lower court’s decision not to institute criminal proceedings against the doctors. 15. On 9 May 2011 the applicant appealed against that decision to the Supreme Court. 16. On 22 February 2013 the Supreme Court informed the applicant that his appeal was still pending. 17. In its 1092nd meeting (14 and 15 September 2010), the Ministers’ Deputies noted, as regards individual measures for the execution of the Dybeku judgment (cited above), that: (i) in June 2008 the applicant had been transferred to the Kruja special establishment which offered specialised treatment for prisoners suffering from mental disorders; (ii) the People’s Advocate (Ombudsperson), an independent institution which also monitors the conditions of detention of prisoners, reported that the applicant had been provided with the necessary medicines and his state of health was improving; (iii) no other individual measure seemed necessary in those circumstances. 18. In its 1164th meeting (5 and 7 March 2013), the Minister’s Deputies noted, as regards individual measures for the execution of the Dybeku judgment (cited above), that: (i) the applicant had been placed in appropriate conditions of detention with medical treatment adapted to his state of health; (ii) the People’s Advocate’s report of 19 October 2012 confirmed the above assessment; and (iii) the individual measures were thereafter connected to the implementation of general measures required to guarantee appropriate medical treatment to the applicant and to all detainees in a similar situation. The Ministers’ Deputies’ decision of 7 March 2013 noted, in so far as relevant, that: “1. according to the information available, the applicant ...ha[s] currently access to the medical treatment required by [his] state of health;” 19. According to the decision, as regards the adoption of general measures, the Ministers’ Deputies: “2. deplored nevertheless, having regard to the age of the case[s] and the seriousness of the violations in issue, that the authorities have not yet submitted detailed information to the Committee regarding the measures taken to ensure that the applicant[s], as well as all other detainees, would in the future be able to access medical treatment necessary for their state of health; ... 5. urged the Albanian authorities to submit to the Committee, without any further delay, an updated action plan containing all the missing information including, in particular, detailed information on the legal regime and practice governing the availability of medical treatment for detainees, so as to enable the Committee to assess the status of execution of these two judgments as soon as possible.” | 0 |
test | 001-170283 | ENG | UKR | COMMITTEE | 2,017 | CASE OF IVAN AND OTHERS v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time) | Carlo Ranzoni;Khanlar Hajiyev | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-140022 | ENG | TUR | CHAMBER | 2,014 | CASE OF İHSAN AY v. TURKEY | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen | 4. The applicant was born in 1957 and lives in Diyarbakır. 5. On 10 December 1985 he began working as a biology teacher at a private tutoring centre (dershane) in Diyarbakır. Between December 1985 and July 1999 he worked there on a contractual basis. The renewal of his contracts was subject to the approval of the Director of the National Education Department attached to the Diyarbakır Governor’s Office. 6. On 13 July 1999 the Governor’s Office decided not to renew the applicant’s contract, on the strength of a security investigation conducted into him. 7. On 21 July 1999 he was informed by the head of the tutoring centre that his contract was being terminated. 8. On 1 September 1999 the applicant lodged a claim with the Diyarbakır Administrative Court, challenging the termination of his contract. In his application, he stated, inter alia, that he had not been informed of the reasons for his dismissal and that the administrative authorities had failed to respect the established case-law of the Supreme Administrative Court, according to which security investigations could not be used as the sole basis of an administrative decision, as their content was confidential. The applicant submitted that he had been working at the private tutoring centre since its establishment in 1985 and that his right to work was breached on account of this unlawful administrative decision. The applicant claimed that he was deprived of his livelihood as he did not have any other work and that the administrative authorities’ decisions had irreversible consequences for his life. 9. On 30 December 1999 the Diyarbakır Administrative Court annulled the Governor’s Office’s decision. In its judgment, the court noted that the Governor’s Office had decided to terminate the applicant’s contract on the basis of a security investigation conducted by the office of the Regional Governor of the state-of-emergency (Olağanüstü Hal Bölge Valiliği). The court further noted that the administrative authorities had been requested to provide information on the reasons for the termination of his contract. In a document sent to the court by the Governor’s Office, it was stated that the applicant had been involved in a number of ideological activities before 1980; that the Karşıyaka police had instituted proceedings against him for having committed an offence against the “national legal personality of the State”; that he had been sentenced to ten months’ imprisonment; and that he had been the representative of the Diyarbakır branch of Eğit-Sen (a trade union) in 1991. The court considered that the applicant had worked in State schools for a number of years and had been known to the administrative authorities when he began working at the private tutoring centre. It therefore concluded that the decision to terminate his contract, which had been taken on the basis of intelligence information known to the authorities from the outset, had been unlawful. 10. On 20 March 2000 the Diyarbakır Governor’s Office appealed against the judgment of 30 December 1999. In the appeal, it was noted that the applicant had been involved in illegal activities and therefore did not possess the right qualities to be a teacher. It was also stated that the administrative authorities, taking into consideration the particularities of the country and the region concerned, as well as the nature and the sensitivity of the post, had found that there was no public interest in keeping him employed in his post. 11. On 17 September 2001 the Supreme Administrative Court quashed the first-instance court’s judgment. It noted that the Regional Governor of the state-of-emergency had conducted a security investigation into the applicant. That investigation had revealed that he had been involved in several ideological activities before 1980; that a criminal investigation had been initiated against him for having committed an offence against the “national legal personality of the State”; and that he had been sentenced to ten months’ imprisonment. These were the reasons for which he had been dismissed from his post. The Supreme Administrative Court held that the decision dismissing the applicant following the security investigation had been lawful, since he had been sentenced to imprisonment for having committed a crime against the State and there was information to suggest that he had been involved in ideological activities for illegal organisations. The Supreme Administrative Court also had regard to the particularities of the region where he had worked. 12. On an unspecified date the applicant’s representative applied to the Supreme Administrative Court, requesting rectification of its decision of 17 September 2001. In his request, he maintained that the applicant had been charged with being a member of an organisation whose aim was to establish the domination of a particular social class and for disseminating propaganda, under Articles 141 and 142 of the Criminal Code (Law no. 765) respectively, and had been sentenced to ten months’ imprisonment for his activities before 1980. He further contended that the Articles in question had been repealed in 1991, and that on 22 August of the same year the trial court had decided to overturn the applicant’s criminal conviction and erase his criminal record. He argued that dismissing the applicant on the basis of his erased criminal record and the findings of a security investigation which were not publicly accessible had been unlawful and in breach of his right to a fair trial under the Convention. 13. On 8 May 2002 the Supreme Administrative Court dismissed his request holding that his submissions could not be the basis of a rectification of decision. 14. On 31 December 2002 the Diyarbakır Administrative Court dismissed the applicant’s case, taking into account the Supreme Administrative Court’s decision and referring to the reasoning in the latter’s judgment. 15. The applicant appealed. In his appeal, his representative repeated the submissions put forward in his request for rectification of the Supreme Administrative Court’s decision. 16. On 20 January 2004 the Supreme Administrative Court dismissed the applicant’s appeal and upheld the judgment of 31 December 2002, holding that the latter was in accordance with the law. | 1 |
test | 001-180310 | ENG | HUN | CHAMBER | 2,018 | CASE OF MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY | 3 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression;Freedom to impart information;Freedom to receive information);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction) | Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant political party has its registered seat in Budapest. 6. On 2 October 2016 a referendum related to the European Union’s migrant relocation plan was held in Hungary. The referendum was initiated by the Government and posed the following question: “Do you want the European Union to be entitled to order the mandatory settlement of non-Hungarian citizens in Hungary without Parliament’s consent?” 7. In the course of the campaign several opposition parties called on voters to boycott the referendum or to cast invalid ballots that would not count in the final tally but could still be interpreted as rejecting the idea of the referendum. On 29 September 2016 the applicant political party made available a mobile telephone application to voters (“the cast-an-invalid-vote app”) where they could upload, and share with the public, photographs taken of their ballots. It also enabled voters to comment on the reasons for how they cast their ballot. The posting and sharing of photographs were anonymous. The application was reported in major online journals. 8. On 29 September 2016 a private individual lodged a complaint with the National Election Commission (Nemzeti Választási Bizottság) about the application. 9. In a decision of 30 September 2016 the National Election Commission found that the application infringed the principles of fairness of elections, voting secrecy, and the proper exercise of rights (rendeltetésszerű joggyakorlás), and ordered the applicant organisation to refrain from further breaches of section 2(1)(a) and (e) of Act no. XXXVI of 2013 on Electoral Procedure and Article 2(1) of the Fundamental Law. Relying on a previous resolution issued in 2014, it held that voters could not treat ballot papers as their own [property], and therefore could neither take them out of the voting booths nor take a photograph of them. It held that taking photographs of ballot papers could lead to electoral fraud. Furthermore, although the principle of secrecy did not create any obligation on the voters’ side, it nevertheless did not entitle them to abuse their situation, bearing in mind that voting secrecy could only be maintained with their cooperation. The Commission concluded that the phone application was capable of discrediting the work of election bodies and tallying systems in the eyes of the public. 10. The applicant sought judicial review of this decision before the Kúria. 11. By a judgment of 10 October 2016 the Kúria upheld the Commission’s decision as to its finding regarding the infringement of the principle of the proper exercise of rights. The Kúria held that the purpose of the ballots had been to enable voters to express their opinion on the referendum question, and that taking photographs of ballots and subsequently publishing them had not been in line with this purpose. A ban on photographs and on publication had not infringed voters’ freedom of expression, since they had been free to express their opinions by casting their ballots and to share with others how they had voted. The Kúria overturned the remainder of the Commission’s decision on the infringement of the secrecy of the electoral process and on the discrediting of the work of the electoral bodies. It found that there was no regulation prohibiting voters from taking photographs of their ballot papers in the voters’ booths and that their identity could not have been revealed through the mobile telephone application. 12. Meanwhile, on 3 October 2016 the same private individual lodged a new complaint with the National Election Commission, in the light of the fact that the applicant political party had activated the “cast-an-invalid-vote app” on 2 October, the day of the referendum. The complainant maintained that by operating the mobile telephone application and by encouraging voters to make use of it, the applicant political party had infringed the principles governing the bona fide and proper exercise of rights, and also the principles of fairness and secrecy of elections. 13. In a decision of 7 October 2016 the National Election Commission reiterated its previous finding that taking photographs of ballot papers had infringed the principle of the secrecy of voters’ ballots, the fairness of elections, and the proper exercise of rights, and fined the political party 832,500 Hungarian forints (HUF – approximately 2,700 euros (EUR)). The Commission supplemented its previous reasoning by noting that the mobile telephone application calling on voters to cast an invalid ballot could have influenced voters and had thus constituted unlawful campaigning. 14. The applicant political party sought judicial review of this decision as well. 15. By a decision of 18 October 2016 the Kúria upheld the Commission’s decision as to the finding of an infringement of the principle of the proper exercise of rights. It explained that the purpose of the ballot papers had been for voters to express their opinion on the referendum question, and any other use of them had constituted a violation of the principle of the proper exercise of rights. The Kúria overturned the remainder of the Commission’s decision as to a violation of the fairness and voting secrecy and the principle of the bona fide exercise of rights. It reiterated its previous finding that the identity of the individual voters had not been revealed, and emphasised that the conduct of the applicant political party had had no impact on the fairness of the referendum. It reduced the fine to HUF 100,000 (approximately EUR 330). 16. The applicant organisation lodged a constitutional complaint against the decisions of both 10 and 18 October 2016. In both complaints the applicant requested the Constitutional Court to “establish that the Kúria’s decision infringed its right recognised in Article IX (1) of the Fundamental Law”. It argued that “under Article 27 of the Act on the Constitutional Court an organisation personally concerned by an unconstitutional judicial decision, after having exhausted all other remedies, may lodge a complaint with the Constitutional Court if the decision on the merits infringed its right ensured by the Constitution. The decision of the Kúria declared the applicant’s conduct unlawful and obliged it to pay a fine, it was the applicant who lodged the petition for review with the Kúria, thus it was individually concerned in the present case...By making the mobile phone application available the applicant reacted to the spreading of social media communication. Citizens regularly share events, thoughts and opinions on internet websites through photos taken with their mobile phones. In the context of elections, this led to the fact that all over the world, voters take photos of their ballot papers and share it through social media. By developing the mobile phone application the applicant wanted to enable voters to share photos of ballot papers (or in case of those who absented from the referendum photos of the activities undertaken instead of voting) and other messages in an anonymous way and exercise their right to freedom of expression in a way that the content of the vote could not be linked to the voter. ...In the applicant’s view the impugned decision, its legal interpretation and the consequences applied by the Kúria infringe its right under Article IX (1) of the Fundamental Law. The conduct of voters taking photos of ballot papers and sharing it with others is an expression of an opinion in public matters and constitutes a conduct falling under the freedom of expression of opinions, and in particular, the most protected aspect of it, a discussion on matters of public interest. Thus, the applicant’s activity, providing a forum for voters to express an opinion is also protected by the Article IX (1) of the Fundamental Law...In the applicant’s opinion, the decision of the the Kúria, by invoking voters’ right to freedom of expression, restrained in fact, the applicant’s own conduct of exercising its right to freedom of expression without any constitutional reason.” The applicant further submitted that, as established by the Kúria, the mobile phone application had not infringed the secrecy and fairness of the voting procedure and it had also not been capable of doing so, since the content of the ballot papers could not be linked to the voters. Thus, it argued that these aims could not serve as a legitimate basis for restricting the right to freedom of expression. In any event, even if the application could have infringed the secrecy of voting, the ban on the application had been disproportionate. 17. The Constitutional Court declared the complaints inadmissible on 24 October 2016, with identical reasoning, on the grounds that the cases did not concern the applicant organisation’s right to freedom of expression. It reiterated the Kúria’s finding that although the case related to the freedom of expression of voters, this had not been infringed by the decision of the Election Commission, which had only found that the method used – that is to say uploading photographs to a mobile application – had not been in compliance with the obligation to exercise voting rights in accordance with their purpose. In the Constitutional Court’s view the applicant political party had merely provided a forum for voters to share photographs of their ballot papers or their intention to abstain from voting, it had did not itself expressed an opinion. Since the applicant political party had only complained about the restriction of voters’ right to freedom of expression, it had not been personally concerned by the decision of the Kúria. | 1 |
test | 001-148627 | ENG | UKR | CHAMBER | 2,014 | CASE OF KUSHNIR v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1983. His present place of residence is unknown. 6. On 5 October 2005 the applicant was found guilty of fraud and sentenced to two years’ restriction of liberty. 7. In March 2007 criminal proceedings were instituted against him on suspicion of robbery, theft and illegal drug dealing committed in 2005 and 2007. The applicant was detained as a suspect within this set of proceedings from 8 to 23 March 2007 and from 10 September 2007 to 21 October 2008. During the remaining period of the pre-trial investigation he was bound by an undertaking not to leave his town of residence. 8. On 21 October 2009 the Shevchenkivskyy District Court of Kyiv (“the Shevchenkivskyy Court”) found the applicant guilty as charged and sentenced him to four years’ imprisonment, which also absorbed the outstanding part of the sentence of 5 October 2005 (see paragraph 6 above). 9. On 9 April 2010 the Kyiv City Court of Appeal upheld that judgment. 10. The case file contains no further information about the aforementioned proceedings. 11. On 3 July 2009 Mr B. lodged a complaint with the police to the effect that the applicant had robbed him of a mobile phone on 22 June 2009 (the applicant had then been at liberty subject to an undertaking not to leave his town of residence – see paragraph 7 above). 12. On 3 July 2009, at about 7 p.m., the applicant was summoned to the Shevchenkivskyy District Police Station no. 2 (ТВМ-2 Шевченківського РУ ГУМВС у м. Києві) by a telephone call. According to him, he could not refuse given that he was bound by the undertaking not to leave the town, which also implied his obligation to obey any police summonses. As the applicant further submitted, he was arrested in the police station upon his arrival there without any explanation. According to the report of the police officer involved, the latter had “invited [the applicant] to the police station on suspicion of having committed the criminal offence alleged by [Mr B.]”. 13. It appears that the applicant was held in the police station overnight (see, in particular, paragraph 27 below). The case file contains his written explanations to the police dated 3 July 2009 regarding the events of 22 June 2009. He admitted that he had met Mr B., but denied his involvement in the robbery. 14. On 4 July 2009 a criminal case was opened against the applicant on suspicion of having robbed Mr B. 15. On the same day, at 2.15 p.m., the police issued a report, according to which the applicant had been apprehended at 2 p.m. on 4 July 2009 in the premises of the police station on suspicion of having committed a crime. The applicant signed the report with a comment that he had nothing to say. He also signed extracts from the Constitution and the legislation on pre-trial detention as regards his procedural rights, as well as a waiver of his right to legal assistance. 16. On 4 July 2009 the applicant was questioned as a suspect and denied that he was guilty. 17. On 7 July 2009 the investigator applied to the Shevchenkivskyy Court for an order remanding the applicant in custody pending trial, stating as reasons the applicant’s previous criminal record and the severity of the alleged offence, which was punishable with imprisonment for up to six years. The investigator considered that if the applicant remained at liberty, there was a risk that he would abscond or hinder the investigation. 18. On the same date, having upheld the investigator’s reasoning, the Shevchenkivskyy Court remanded the applicant in custody for two months. 19. On 31 August 2009 the court extended the applicant’s pre-trial detention to three months, having taken into account “the volume of investigative measures still to be undertaken”. 20. From 25 August to 22 September 2009 the applicant was held in the Kyiv City Centre of Forensic Psychiatric Expert Examinations with the aim of clarifying whether he could be held criminally liable. 21. On 19 October 2009 the Shevchenkivskyy Court opened the trial. It dismissed the applicant’s request for the custodial preventive measure to be replaced by an undertaking not to abscond. 22. On 26 July 2010 the court remitted the case for additional pre-trial investigation. 23. On 14 February 2011 the Shevchenkivskyy Court held a preliminary hearing. It upheld the custodial preventive measure in respect of the applicant. 24. On 6 March 2012 the court convicted the applicant as charged and sentenced him to six years’ imprisonment. 25. The Court has not been made aware of any further developments in these domestic proceedings. 26. The applicant alleged that, following his arrest on 3 July 2009, he had been “severely beaten” by the police. The applicant did not provide any factual details of his alleged ill-treatment or of any injuries sustained. 27. According to the applicant, on the morning on 4 July 2009 his mother had received a phone call from a person who had been detained in the same police station and released that morning. The applicant had asked him to pass a message to her stating that he was detained there and that he had been questioned and ill-treated by the police. 28. As further submitted by the applicant, his mother had contacted the police station in order to verify that information, but was told that her son was not there. She had therefore complained to the police and the prosecution authorities about his disappearance. 29. According to the Government, on 4 July 2009 the police had notified the applicant’s mother about his arrest and invited her to come to collect his belongings, which she did. She also signed a receipt to that effect. 30. On 8 July 2009 the applicant was taken to the Kyiv Pre-Trial Detention Centre (the SIZO) (Київський слідчий ізолятор). His medical examination, which was carried out on the same day, did not reveal any injuries, and the applicant did not mention to the doctors that he had been ill-treated. His only complaint was about epigastric pain (see also paragraph 51 below). 31. On 13 July 2009 the applicant’s mother complained to the police and to the prosecution authorities about the alleged ill-treatment of her son in police custody. She also stated that he suffered from a number of contagious diseases and could not therefore be held in detention. 32. On 25 July 2009 the applicant underwent surgery for acute appendicitis and peritonitis. 33. On 28 July and 2 August 2009 the applicant’s mother complained to the prosecution authorities that the need for surgery on her son had been the direct consequence of his alleged ill-treatment on 3 July 2009. 34. On 5 August 2009 the Investigative Unit of the Kyiv Main Police Department (СУ ГУМВС України в місті Києві) completed its internal inquiry into the matter. As noted in the inquiry report, on 4 July 2009 the applicant’s mother had signed a receipt confirming that she had collected her son’s belongings from the police station. She had therefore been aware of his arrest. Furthermore, there was no evidence that any coercion had been used on the applicant. Accordingly, his allegation of ill-treatment was found to be without basis. 35. On 16 August 2009 the SIZO doctors, acting on the instruction of the prosecution authorities, examined the applicant to establish if there were any traces of the alleged ill-treatment. None was discovered. 36. On 21 August 2009 the Shevchenkivskyy District Prosecutor’s Office refused to institute criminal proceedings in respect of the applicant’s allegation of ill-treatment considering it unfounded since there was no evidence of any criminal behaviour by the police in relation to him. 37. On 27 August, 5 and 21 October and 2 November 2009 the prosecutor sent letters to the applicant’s mother informing her of the aforementioned decision. According to the applicant, none of those letters reached his mother. 38. The applicant was detained in the SIZO from 8 July 2009 to 2 July 2012. 39. Without specifying in which cells he had been held and for how long, the applicant described his cells as severely overcrowded, poorly ventilated and damp. 40. According to the information provided by the Government, the applicant was held in the following cells: - cell no. 341, measuring 13.2 sq. m (shared by 6 detainees); - cell no. 14, measuring 31.6 sq. m (shared by 24 detainees); - cell no. 101, measuring 60.9 sq. m (shared by 38 detainees); - cell no. 260, measuring 21 sq. m (shared by 2 detainees); - cell no. 277, measuring 29.9 sq. m (shared by 5 detainees); - cell no. 270, measuring 27.6 sq. m (shared by 4 detainees); - cell no. 273, measuring 24.6 sq. m (shared by 4 detainees); - cell no. 33, measuring 51.8 sq. m (shared by 8 detainees); - cell no. 85, measuring 20.8 sq. m (shared by 10 detainees); - cell no. 331, measuring 12.7 sq. m (shared by 6 detainees); - cell no. 18, measuring 9.1 sq. m (shared by 4 detainees); - cell no. 142, measuring 9.4 sq. m (shared by 3 detainees); - cell no. 74, measuring 9.5 sq. m (shared by 4 detainees); and - cell no. 274, measuring 20.0 sq. m (shared by 4 detainees). 41. According to the Government, the conditions in those cells were adequate and they were equipped with the requisite furnishings and facilities. The windows and the ventilation system allowed fresh air to circulate and a satisfactory level of natural and artificial lighting was provided. 42. On 23 May 2011 the SIZO governor informed the prosecutor of the Kyiv City Prosecutor’s Office in charge of the supervision of lawfulness in prisons that during the period from 1 February to 1 April 2011 the applicant had changed cells five times. Specifically, on 1 February 2011 he was placed in cell no. 33, on 23 February 2011 in cell no. 101, on 5 March 2011 in cell no. 101 again (apparently after a stay in the medical unit), on 11 March 2011 in cell no. 260, and on 1 April 2011 in cell no. 33. The SIZO governor explained those transfers by the fact that the applicant had often been held in the SIZO medical unit, given his poor state of health. 43. On four occasions the applicant was placed in a disciplinary cell for keeping prohibited items (in three cases a mobile telephone and in one case cash): on 14 July 2010, 22 October 2011, 12 December 2011 and 29 February 2012. On each occasion he was held in a disciplinary cell for one day, with the exception of 14 July 2010, when he was placed there for two days. In every case a medical specialist of the SIZO confirmed that the measure in question was compatible with the applicant’s state of health. 44. On 14 July 2011 the applicant’s mother complained to the Prosecutor General’s Office that on 8 July 2011 the SIZO administration had administered emetics to the applicant in order to establish whether any drugs were present in his body. She submitted that it had been an unjustified, humiliating and dangerous measure. 45. On 17 August 2011 the Kyiv Regional Office of the State Prison Department (Управління Державного департаменту України з питань виконання покарань в м. Києві та Київській області) informed the prosecution authorities, in response to the complaints by the applicant’s mother, that the applicant was under the close scrutiny of medical specialists on account of a number of illnesses and that his numerous medical examinations had not revealed any injuries. Furthermore, the applicant had never complained to any authorities or doctors of having been ill-treated during his detention. He had also given a written refusal to make any comment about his mother’s complaints. 46. On 25 October 2011 the applicant’s lawyer complained to the SIZO governor that her client had been unjustifiably incarcerated, and that on 13 and 19 October 2011 he had been beaten by persons wearing masks. 47. On 9 November 2011 the head of the SIZO medical unit replied that the applicant’s allegations were unfounded and that he had not made any complaints himself. 48. In 2004 the applicant was diagnosed with tuberculosis for the first time. 49. In May 2007 he tested HIV-positive. In November 2007 his condition was assessed as clinical stage 3 HIV and AIDS. He was registered for monitoring in the AIDS Centre at the place of his residence. 50. The applicant also suffers from chronic viral hepatitis B and C. 51. On 8 July 2009, upon his arrival at the SIZO, the applicant underwent a medical examination and X-ray, which revealed post-tuberculosis residual lung changes. His height and weight were recorded as 180 cm and 74 kg respectively. The applicant complained of epigastric pain. He also informed the doctors of his past medical history of viral hepatitis B and C, and his HIV-positive status (see also paragraph 30 above). 52. On 15 July 2009 the applicant was examined by two tuberculosis specialists, who confirmed the diagnosis of post-tuberculosis residual changes in the right lung and recommended further medical supervision. 53. On 25 July 2009 the applicant was taken from the SIZO to the emergency hospital, where he underwent surgery in respect of acute appendicitis and peritonitis. The case file does not contain any information as to whether anything had led up to that emergency. Nor did the applicant submit any factual details in that regard, apart from his broadly-couched allegation, in reply to the Government’s observations, that the emergency had been a result of his ill-treatment (see paragraph 99 below). 54. According to the information provided by the Government, from 30 July to 6 November 2009 the applicant was given in-patient post-surgery medical treatment in the SIZO medical unit. The applicant contested this information as untruthful, referring to the fact that from 25 August to 22 September 2009 he had been undergoing forensic psychiatric expert examination in the Kyiv City Psychiatric Hospital (see also paragraph 20 above). The case file contains an extract from the applicant’s medical file held in the SIZO, according to which he received in-patient treatment in the SIZO medical unit from 30 July to 25 August 2009. 55. On 9 October 2009 the applicant was X-rayed. Following the discovery of a focal shadow on the right lung, it was recommended that he consult a specialist. 56. On 16 October 2009 a tuberculosis specialist examined the applicant and found that he had focal tuberculosis of the upper lobe of the right lung at an unclear stage of development. The doctor prescribed a trial chemotherapy regimen consisting of isoniazid, pyrazinamide, rifampicin and ethambutol. 57. On 13 November 2009 the applicant again underwent chest X-rays, which showed focal tuberculosis of the upper lobe of the right lung in the consolidation stage. The radiologist recommended that the applicant consult a tuberculosis specialist. 58. On 17 November 2009 the applicant was invited to undergo another X-ray, but he refused. 59. On 23 and 25 November and on 9 December 2009, at the applicant’s request, a dentist examined him. The diagnosis was chronic multiple complicated caries related to poor dental hygiene, as well as tongue candidiasis. The applicant was provided with some medication, ointment and vitamins, and had the decayed tooth roots removed. 60. On 9 December 2009 the applicant was also examined by a specialist in infectious diseases and underwent a CD4 test. Its result was 618 cells/cu. mm. 61. On 1 April 2010 the applicant underwent X-rays, the findings of which were the same as on 13 November 2009. 62. On 6 June 2010 the applicant was X-rayed again, with no pathological indications having been revealed. 63. On 29 November 2010 the applicant was due to undergo X-rays, but was unable to because he was not feeling well. 64. On 23 December 2010 a radiologist recommended (it is not known in what circumstances) that the applicant consult a tuberculosis specialist. 65. On 18 March 2011 the applicant underwent further X-rays. He was diagnosed with pneumonia triggered by tuberculosis, post-tuberculosis residual changes in the form of focal consolidations in the lower lobe of the left lung, and bronchitis. The radiologist recommended that the applicant consult a tuberculosis specialist. 66. Although the applicant’s medical file shows that he underwent in-patient treatment for pneumonia in the SIZO medical unit from 11 to 30 March 2011, on 15 August 2012 the State Prison Department informed the Agent of the Government, who was collecting information for the purpose of preparing observations for submissions to the Court, that this information “had turned out to be unconfirmed”. 67. On 24 March 2011 the applicant again underwent a CD4 test. Its result was 898 cells/cu. mm. 68. On 11 April 2011 another such test was undertaken, which showed the CD4 count as 836 cells/cu. mm. 69. On 21 April 2011 the applicant underwent another X-ray, which revealed post-tuberculosis focal consolidations in the lower lobe of the right lung. It was recommended that the applicant consult a tuberculosis specialist. 70. Following a complaint from the applicant’s mother regarding the failure to administer antiretroviral therapy to her son, on 26 April 2011 the SIZO administration informed her that the applicant was undergoing treatment for tuberculosis and that a consultation by an infectious diseases specialist was needed to decide about antiretroviral therapy. 71. On 29 April 2011 the applicant was examined by a tuberculosis specialist, who found that he had no active-phase tuberculosis and that his general state of health was good. 72. On 16 August 2011 the applicant’s X-rays showed that he had infiltrative tuberculosis of the upper lobe of the left lung in the disintegration stage. 73. On 21 August 2011 the applicant was examined by a tuberculosis specialist, who prescribed him seasonal relapse prevention therapy with two antibacterial drugs (ethambutol and rifampicin) for ninety days, starting on 10 October 2011 and also a special diet. According to the applicant, this prescription was not implemented in practice. 74. On 8 November 2011 the applicant complained of moderate general weakness and heaviness in the right hypochondrium and was examined again by the tuberculosis specialist. As a result, his ninety-day relapse prevention therapy was slightly modified. 75. On 22 November 2011 the tuberculosis specialist examined the applicant again, with no dynamics noted. The doctor recommended continuation of the treatment and a repeated CD4 test. It is not clear whether that test was carried out. 76. On 6 January 2012 the applicant underwent X-rays which showed that he had infiltrative tuberculosis of the upper lobe of the left lung in the disintegration stage. 77. On the same date the applicant was examined by two tuberculosis specialists, who diagnosed a recurrence of tuberculosis. They recommended a drug susceptibility test and prescribed isoniazid, rifampicin and ethambutol. 78. On 14 May 2012 the applicant had his chest X-rayed. There was a limited fibrosis in the right lung and a suspected ring-shaped shadow on the left lung. The applicant was diagnosed with infiltrative tuberculosis of the upper lobes of both lungs. 79. On 25 May 2012 he was examined by a tuberculosis specialist, who prescribed continuation of the treatment of 6 January 2012. 80. On 5 July 2012 the applicant was transferred to the Zhovtnevska prison no. 17 (Жовтневська виправна колонія № 17) in the Kharkiv region – where there was a hospital specialising in tuberculosis – for the purposes of serving his sentence. 81. According to the applicant, during his detention in the SIZO his weight dropped from 87 kg to 52 kg. He had previously indicated his height as 188 cm. The entry in his medical file in the Zhovtnevska prison upon his arrival there stated his height as 180 cm and his weight as still 74 kg (see also paragraph 51 above). 82. On an unspecified date following the applicant’s transfer to the Zhovtnevska prison (before 28 September 2012 – see paragraph 84 below) his drug susceptibility was tested. It revealed that the applicant was infected with strains of tuberculosis resistant to two of the first-line drugs with which he had been treated before. 83. On 7 September 2012 he was examined by an infectious diseases specialist, who diagnosed him with chronic persistent hepatitis in the remission stage. 84. On 28 September 2012 the applicant was examined by the Head of the Phthisiology and Pneumonology Department of the Kharkiv Medical Academy of Post-Graduation Studies, who prescribed an individual scheme of chemotherapy for him, given his resistance to certain drugs. 85. On 30 September 2012 the applicant underwent a CD4 test. Its result was 469 cells/cu. mm. 86. On 5 October 2012 an infectious diseases doctor from the Kharkiv Regional AIDS Centre examined the applicant and diagnosed tuberculosis, oropharyngeal candidiasis and chronic viral hepatitis. 87. Also on 5 October 2012 the applicant was examined by a tuberculosis specialist from the Kharkiv Medical Academy, who reported positive developments as a result of the treatment and recommended its continuation. 88. According to the extract from the applicant’s medical file issued by the Zhovtnevska prison administration, the applicant was released from detention on 26 October 2012 on the ground of poor health. It was recommended that he register for monitoring in the local AIDS centre and that he continue his treatment for tuberculosis in the place of his residence. 89. None of the parties has submitted to the Court any details as to the circumstances of and the reasons for the applicant’s release. The applicant noted summarily that he “was transferred for treatment in [his] place of residence as his treatment [in detention] had not been successful.” | 1 |
test | 001-157517 | ENG | SVN | CHAMBER | 2,015 | CASE OF STIBILJ v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time) | Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary | 5. The applicants, daughter and mother, were born in 1949 and 1921, respectively, and live in Ajdovščina. 6. On 2 February 1989 the Ajdovščina Municipality Land Consolidation Commission (hereinafter “the Commission”) adopted a land consolidation programme concerning, inter alia, land owned by the first applicant’s legal predecessor and a separate piece of land owned by the second applicant. 7. On 4 March 1989 the first applicant’s legal predecessor and the second applicant appealed against the Commission’s decision before the Slovenian Surveying and Mapping Authority (“the Authority”), arguing that they had not been duly compensated for the plots which they had owned and which had been transferred to the land consolidation programme. 8. On 6 November 1990 the Commission amended the land consolidation programme by assigning the second applicant a different plot of land. The second applicant appealed against the decision. 9. On 21 December 1990 the first applicant’s predecessor lodged an appeal for the failure of the Authority to adopt a decision within the prescribed time-limit. 10. On 1 February 1991 the Authority granted the first applicant’s legal predecessor’s appeal, remitting the case to the Commission for further consideration. The Authority found that the operative part of the decision lacked clarity and that the Commission had misapplied the law. 11. On 28 June 1994 the Convention became operational in respect of Slovenia. 12. On 16 November 1994 the Authority granted the second applicant’s appeal against the decision of 6 November 1990, finding that the operative part of the decision was inconsistent with its reasoning. The case was remitted to the Commission for further consideration. 13. On 15 December 1994, 15 March 1996, 24 April 1996 and 20 February 1997 the first applicant’s predecessor and the second applicant lodged informal motions before the Commission, asking that the proceedings be expedited. 14. On 10 April 1997 – the Commission having failed to undertake further examination of their cases – the first applicant’s legal predecessor and the second applicant each lodged a separate appeal with the Ministry of Agriculture, Forestry and Food (“the Ministry”) alleging that the Commission had failed to adopt a decision within the prescribed time-limit. Moreover, on 30 June 1997 they both appealed to the Ministry to expedite the resolution of their respective land consolidation decisions. 15. On 25 September 1997 – the Ministry not having responded to their appeal – the first applicant’s legal predecessor and the second applicant brought an action before the Administrative Court for the failure of the Ministry to adopt a decision within the prescribed time-limit. 16. On 24 September 1999 the Administrative Court allowed those actions and ordered the Ministry to decide on the matter at issue within thirty days from the date on which its judgment became final. 17. Meanwhile, on 16 August 1999 the Ajdovščina Administrative Unit (previously the Commission, hereinafter “the Administrative Unit”), which had acquired competence to decide on matters of land consolidation, adopted new decisions on the land at issue. 18. On 23 September 1999 the first applicant’s legal predecessor and the second applicant appealed before the Ministry against those decisions. 19. On 25 August 2000 their appeals were allowed by the Ministry, which again assigned them different plots of land to compensate them for the loss of their original plots. 20. On 10 November 2000 the first applicant’s legal predecessor and the second applicant brought actions for judicial review (administrative action) before the Administrative Court against the Ministry’s decisions of 25 August 2000 on the grounds that the Ministry had failed to properly consider the criteria applicable to the land consolidation programme and had thereby violated their right to equality before the law. 21. On 23 January 2001 the first applicant’s legal predecessor died and the first applicant inherited a part of his land including plots subject to land consolidation proceedings. She then intervened in the proceedings as the heir. 22. On 11 April 2003 and 9 May 2003, respectively, the Administrative Court allowed the applicants’ actions for judicial review and annulled the Ministry’s decisions of 25 August 2000 on the grounds that the applicants had not been acquainted with the expert opinion on which the Ministry had based its decisions and that no reasons had been provided for the dismissal of the objections to the distribution of land. The Administrative Court remitted the cases to the Ministry for further consideration. 23. On 15 May 2007 the Ministry adopted new decisions concerning the distribution of land in respect of the first and second applicant. 24. On 17 June 2007 the applicants each brought another action for judicial review (administrative action) against those new decisions before the Administrative Court. 25. On 11 February 2008 and 3 March 2009 the applicants each lodged an informal motion before the Administrative Court to expedite the resolution of their action. 26. On 19 June 2009 and 23 October 2009, respectively, the Administrative Court allowed the first and second applicants’ actions for judicial review, annulling the Ministry’s decisions of 15 May 2007, and again remitted the cases to the Ministry for further consideration. 27. On 23 November 2009 and 10 May 2010 the first and second applicants lodged informal motions before the Ministry, asking that the proceedings be expedited. Moreover, three other similar motions were lodged before the Ministry by the first applicant on 27 August 2012, 4 December 2012 and 27 January 2013. 28. On 5 April 2013 the Ministry issued a decision annulling the Administrative Unit’s decision of 16 August 1999 (see paragraph 17 above) and remitted the cases to it. 29. On 20 May 2014 and 2 June 2014 the Administrative Unit scheduled oral hearings for 12 June 2014 and 19 June 2014, respectively. Prior to the hearings, the first applicant informed the Administrative Unit that she was unable to participate in the hearing due to medical treatment and that the second applicant could not participate as she was seriously ill and bedridden. 30. On 28 August 2014 the Administrative Unit held an oral hearing regarding the applicants’ cases. Land survey and agriculture experts were appointed to consider the first applicant’s requests regarding the land and an agriculture expert was appointed in connection with the second applicant’s requests. 31. The land consolidation proceedings were still pending on the date of the Government’s last communication with the Court. | 1 |
test | 001-144358 | ENG | UKR | CHAMBER | 2,014 | CASE OF AKOPYAN v. UKRAINE | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No 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;Respect for private life) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 4. The applicant was born in 1953 and lives in Kharkiv. 5. In 1985 she got married and gave birth to her first daughter. In 1987 she gave birth to her second daughter. 6. The applicant’s relationship with her husband deteriorated and in August 1994 she and her daughters moved into a house rented by her husband in the village of Pisochyn. Her husband visited his daughters from time to time. 7. In late November or the beginning of December 1994 the applicant’s husband took the children back to Kharkiv. The applicant was left alone. 8. On 17 December 1994 the applicant was admitted to Kharkiv Regional Psychiatric Hospital (“the psychiatric hospital”), a State-run institution. According to the medical records, the applicant was brought by ambulance since she was in a reactive state and showed signs of mental disorder. 9. Soon after her admission to the psychiatric hospital, the applicant was diagnosed as suffering from paranoid schizophrenia and given treatment. 10. Between January 1995 and November 1997 the applicant unsuccessfully and repeatedly asked to be discharged from the psychiatric hospital and lodged complaints about her internment. During that time the applicant was provided with neuroleptic treatment. 11. On 7 November 1997 the applicant escaped from the psychiatric hospital and found shelter with some acquaintances. By that time she was divorced. 12. On 23 December 1997, at the applicant’s request, she was admitted to Kharkiv Municipal Psychiatric Hospital for in-patient psychiatric assessment. According to the medical records, during the applicant’s stay in the municipal hospital she did not take any medicine; discussions with psychiatrists were the only treatment. 13. On 4 February 1998 the applicant was discharged from that hospital with the conclusion that her mental health was normal. 14. Subsequently, the applicant re-established contact with her children and started living with them. 15. Following the applicant’s complaint, on 17 February 1998 the Kharkiv Regional Prosecutor’s Office instituted criminal proceedings against P., the applicant’s doctor, on suspicion of unlawful placement of the applicant in a psychiatric hospital, an offence under Article 123-2 of the Criminal Code of 1960. 16. On 21 July 1998 an expert panel conducted a forensic psychiatric examination and found that the applicant was not suffering from any mental illness. It further concluded that the applicant’s admission to the psychiatric hospital on 17 December 1994 might have been necessitated by her state of health; however, during her stay in the psychiatric hospital she had been wrongly diagnosed, she had not been assessed comprehensively, and she had not been provided with correct medical treatment from the outset, in December 1994. 17. On 9 October 1998 the expert panel additionally concluded that the applicant could have been discharged from the psychiatric hospital on 17 January 1995 on the basis of her discharge request, since her mental state had not suggested that she had posed a danger to herself or to the others. 18. On 24 February 1999 the applicant was recognised as a civil claimant within the framework of the criminal proceedings. 19. On 25 February 1999 the charges against P. were classified as negligence in the performance of official duties which resulted in grave consequences for the applicant. 20. On 9 April 1999 P. was committed to stand trial in the Kharkivskyy District Court. 21. On 20 June 2000 the case file was destroyed in a fire at the court house. 22. On 24 November 2000 the court remitted the case to the prosecutor’s office for supplementary investigation. 23. On 8 June 2001 the case was referred back to the court. 24. Between June 2001 and June 2002 some hearings were scheduled, but for various reasons none of them took place. 25. On 26 June 2002, in response to a complaint from the applicant, the Kharkiv Regional Department of Justice asked the President of the Kharkivskyy District Court to expedite the examination of the case, considering it to be unreasonably protracted. 26. On 24 February 2003 the Kharkivskyy District Court ordered the investigating authorities to carry out a further psychiatric assessment of the applicant. 27. On 14 April 2004 the investigating authorities ordered a psychiatric assessment of the applicant. 28. On 12 January 2005 the case was referred back to the court without this assessment having been carried out. 29. On 27 April 2005 the applicant, having regard to the fact that the case-file had been destroyed by fire in 2000, lodged another civil claim with the Kharkivskyy District Court seeking damages from P. and the psychiatric hospital for her unjustified psychiatric hospitalisation. 30. On 3 June 2005, at P.’s request, the Kharkivskyy District Court discontinued the criminal proceedings as time-barred. 31. The applicant appealed, alleging, in particular, that the impugned decision had been unlawful and that the examination of the case had been unreasonably protracted by the authorities. She further complained that the trial court had not examined her civil claim. 32. On 22 December 2005 the Kharkiv Regional Court of Appeal upheld the court decision of 3 June 2005. 33. On the same date the Court of Appeal delivered a separate ruling, drawing the attention of the Regional Council of Judges to the omissions by the Kharkivskyy District Court which had resulted in the protracted examination of the applicant’s case. It noted, in particular, that between 8 June 2001 and 3 June 2005 there had been an unjustifiable number of adjournments of the hearings and that there had been an unjustifiable two-year period of inactivity pending a forensic assessment which was never carried out. 34. The applicant appealed on points of law against the decision to discontinue the criminal proceedings, raising the same arguments as in her appeal. She asserted that the courts had failed to determine her civil claim. 35. On 13 May 2008 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law. 36. In March 2006 the applicant instituted separate civil proceedings against P. and the psychiatric hospital, claiming 10,000 Ukrainian hryvnias (UAH) from P. and UAH 90,000 from the psychiatric hospital by way of compensation for the damage sustained as a result of her unjustified hospitalisation. She alleged, in particular, that the three-year stay in the psychiatric hospital had caused her severe mental and physical suffering. She argued that she had constantly felt debased and treated like a deficient human being, whose opinion was of no value. In addition, she had been subjected to involuntary medical interventions. Furthermore, the applicant’s private and family life had been ruined. 37. On 31 January 2007 the Chervonozavodsky District Court of Kharkiv found that on 17 December 1994 the applicant had been admitted to hospital lawfully given the signs of mental disorder. It further found that during her stay in hospital, the applicant’s medical doctor, P., had been at fault for breaching a number of legal provisions governing psychiatric assistance. The court established that the requisite procedures for involuntary hospitalisation had not been followed; by contrast, if the applicant had been hospitalised as voluntarily patient, she ought to have been discharged on the basis of her request (see paragraphs 48-50 below). The court also noted that the applicant had repeatedly asked to be discharged and concluded that she could have been discharged as early as 17 January 1995 on the basis of such a request. The court found that as a result of those breaches of domestic law, the applicant had been wrongly diagnosed and mistakenly treated for a considerable time in the psychiatric hospital. 38. The court further noted that during her wrongful stay in the psychiatric hospital the applicant had been unable to freely exercise her rights or manage her life. It therefore concluded that the applicant had sustained non-pecuniary damage which should be compensated by the psychiatric hospital employing P. In reaching that conclusion, the court also referred to the criminal case against P. and the evidence collected by the investigating authorities in that case. 39. The court awarded the applicant UAH 7,000 in respect of non-pecuniary damage noting that, in determining that amount, it had taken into account the length of the applicant’s unjustified stay in the psychiatric hospital, the nature and the scope of physical and mental suffering, the enforced changes in her lifestyle, and the restrictions imposed on her rights as a citizen to freely arrange her life and take care of her own health. 40. The applicant appealed, seeking a higher amount of damages from both defendants. 41. On 19 April 2007 the Kharkiv Regional Court of Appeal upheld the judgment of 31 January 2007. 42. The applicant did not lodge a further appeal before the Supreme Court. | 1 |
test | 001-156259 | ENG | MDA | CHAMBER | 2,015 | CASE OF DONPRUT S.R.L. v. THE REPUBLIC OF MOLDOVA | 3 | Remainder inadmissible;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) | Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant is a taxi cab company from Chişinău. At the time of the events it employed approximately ninety persons and was functioning on the basis of a licence issued by the Licensing Chamber (Camera de Licențiere din Republica Moldova) in July 2005. 6. On 13 December 2007 the Licensing Chamber issued decision no. 4891 by which the applicant company’s licence was withdrawn in view of irregularities. In particular, the applicant company failed to request the inclusion of the names of two new persons employed in administrative positions and of new cars in its licence within the ten-day time-limit provided for by law. 7. On 18 January 2008 the applicant company initiated court proceedings against the Licensing Chamber seeking the annulment of its order of 13 December 2007. The applicant company submitted, inter alia, that the sanction applied to it had been disproportionally harsh and in breach of the company’s right to property. It argued that ninety persons employed by the company had lost their jobs as a result of the measure applied to it and that the company had suffered losses of approximately 170,000 Euros (EUR). The applicant company submitted that it could not comply with the requirement of including all fifty-two new cars in the licence in ten days because of new regulations instituted by the Government according to which all taxi cabs had to be equipped with receipt printing machines. The company did not have sufficient time to equip all new cars because of the lengthy bureaucratic procedure and because all the taxi cab companies were attempting to do that at the same time. The company submitted that it only managed to equip twenty-eight of its cars with the new equipment. 8. On 9 April 2008 the Chişinău Court of Appeal found in favour of the applicant company. Referring to the alleged breach by the applicant company of the ten-day time limit to inform the authorities about the new cars, the Court of Appeal found inter alia that the formalities linked to the equipment of those cars with receipt printing machines made it impossible for the applicant company to comply with the time-limit. In that context the Court of Appeal found that all the taxi cab companies were doing the same thing at the time, which created lengthy delays. As to the applicant company’s failure to inform the Licensing Chamber about two new employees at the company, the Court of Appeal held that that breach was minor and could not justify such a severe sanction. Relying on the Court’s judgments in the cases of Megadat.com SRL v. Moldova (no. 21151/04, 8 April 2008) and Bimer S.A. v. Moldova (no. 15084/03, 10 July 2007) the Court of Appeal found that the interference with the applicant company’s right to respect for its possessions had not been proportionate with the legitimate aim pursued and, thus, that the withdrawal of the applicant company’s licences had been in breach of Article 1 of Protocol No. 1 to the Convention. 9. On 23 September 2008 the Licensing Chamber lodged an appeal against the above judgment. It does not appear that the applicant company lodged written pleadings with the Supreme Court of Justice. 10. On 12 February 2009, after an oral hearing, the Supreme Court of Justice upheld the appeal lodged by the Licensing Chamber, quashed the judgment of the Court of Appeal and dismissed the applicant company’s action. The Supreme Court held that that according to the law in force, the breaches committed by the applicant company were sufficient ground for withdrawing its licence. | 1 |
test | 001-171486 | ENG | AZE | COMMITTEE | 2,017 | CASE OF BAYRAMLI v. AZERBAIJAN | 4 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Legal assistance of own choosing);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Carlo Ranzoni;Khanlar Hajiyev | 4. The applicant was born in 1962 and lives in Baku. At the material time she was deputy chairperson of one of the main opposition parties in the country, the Popular Front Party of Azerbaijan. 5. On 17 April 2011 and 26 January 2013 the applicant participated in demonstrations organised by the opposition in Baku. 6. On 11 April 2011, the organisers had given the relevant authority, the Baku City Executive Authority (“the BCEA”), notice of the demonstration of 17 April 2011. It appears that no prior notice was given to the BCEA by the organisers of the demonstration of 26 January 2013. Information about that assembly was disseminated through Facebook or the press. 7. The BCEA refused to authorise the demonstration of 17 April 2011 at the place indicated by the organisers and proposed a different location on the outskirts of Baku – the yard of a driving school situated in the 20th residential area of the Sabail District. The BCEA noted that the place proposed by the organisers was in an area with heavy traffic. 8. Nevertheless, the organisers decided to hold the demonstrations in the centre of Baku. 9. According to the applicant, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants of the demonstration of 17 April 2011 were demanding free and fair elections and democratic reforms in the country, and protesting about impediments to freedom of assembly. The participants of the demonstration of 26 January 2013 were condemning the use of force by the police against participants of previous demonstrations. 10. The applicant attended both demonstrations, but shortly after they had begun the police started to disperse them. In both cases the applicant was arrested during the dispersal operation and taken to a police station. 11. According to the applicant, during her arrest in the first case several police officers twisted her arms behind her back, held her head down and forced her to move in that position for 20-25 metres in the direction of a police car. As a result, the muscles in her neck, arms, back and other parts of her body hurt. At the police station she was kept handcuffed. In a photograph, submitted to the Court by the applicant and allegedly taken at the time of her arrest, the applicant is shown with both arms twisted behind her back by two police officers and with her body bent as a result of that restraint. 12. In both cases on the day of the applicant’s arrest, an “administrative offence report” (inzibati xəta haqqında protokol) was issued in respect of her. In the first case the report stated that by deliberately failing to comply with a lawful order from the police, the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). In the second case the applicant was charged with an administrative offence under Article 298.1 of the CAO (breach of the rules on the organisation and holding of assemblies, by an assembly organiser). 13. According to the applicant, she was never served with copies of the administrative offence reports or with other documents from her case files. In neither case was she given access to a lawyer after the arrest or while in police custody. 14. In the first case the applicant was brought before the Nasimi District Court on 18 April 2011, the day following her arrest. In the second case she was brought before the Sabail District Court on 26 January 2013, the day of her arrest. 15. According to the applicant, the hearing before the court in both cases was very brief. In the second case members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearing to the public. 16. According to the applicant, in neither case was she given an opportunity to hire a lawyer of her own choice. 17. State-funded lawyers were appointed to assist the applicant. The records of the court hearings in both cases show that in their oral submissions the State-funded lawyers briefly stated that the applicant was not guilty and/or asked the respective court to discontinue the case. 18. In both cases the courts questioned only the police officers who, according to the official records, had arrested the applicant or issued an administrative offence report in respect of her. The police officers testified that the applicant had attempted to stage an unauthorised demonstration, and, in the second case, had also incited others to participate in such an assembly. 19. In the first case the first-instance court found that the applicant had participated or attempted to participate in an unauthorised demonstration. In the second case the court found that the applicant had incited people to participate in an unlawful assembly and, by doing so, had violated the rules on organising and holding assemblies. 20. By a decision of 18 April 2011 the first-instance court in the first case convicted the applicant under Article 310.1 of the CAO and sentenced her to five days’ “administrative” detention. By a decision of 26 January 2013 the court in the second case convicted the applicant under Article 298.1 of the CAO and sentenced her to a fine of 2,000 manats (AZN). 21. On unspecified dates the applicant lodged appeals before the Baku Court of Appeal, arguing that her convictions were in violation of her rights because the demonstrations in which she had participated had been peaceful. She also complained that her arrests had been unlawful and that the hearings before the respective first-instance courts had not been fair. 22. In the first case the applicant also requested the Court of Appeal to order a forensic examination of the injuries she had allegedly sustained during her arrest. The court disregarded that request. The court also disregarded the applicant’s requests to examine video recordings of the arrest made by some journalists; to question the police officers appearing in those video recordings; and to demand the medical record issued in respect of the applicant in the detention facility where she had served her administrative detention. 23. In the first case the applicant was assisted before the Baku Court of Appeal by a lawyer of her own choice. In the second case she was not represented by a lawyer. 24. In both cases, on 22 April 2011 and 6 February 2013 respectively, the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court. 25. On an unspecified date the applicant lodged a complaint before the General Prosecutor’s Office asking it to conduct an investigation into illtreatment allegedly committed by the police during her arrest. 26. By a letter of 25 May 2011 the General Prosecutor’s Office informed the applicant’s lawyer that the complaint had been forwarded to the Baku City prosecutor’s office for examination. The letter also instructed the Baku City prosecutor’s office to inform the lawyer about the results of the examination. 27. On an unspecified date, the applicant was summoned to the Nasimi District prosecutor’s office and questioned in connection with her complaint of ill-treatment. 28. According to the applicant, neither she nor her lawyer was informed about any actions taken by the authorities to investigate her complaint. It was only after making enquiries about the outcome of the investigation, in January 2012, that the applicant managed to obtain a copy of an investigator’s decision of 16 June 2011 refusing to open a criminal case. 29. The applicant did not lodge a complaint with a court against the decision of 16 June 2011. | 1 |
test | 001-166735 | ENG | RUS | COMMITTEE | 2,016 | CASE OF VERSHININ v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 5. The applicant was born in 1959 and lives in Radishchevo, Moscow Region. 6. In 1997, as a result of an accident, the applicant’s house had partially burnt and he had to live in the attic, which was not designed for lodging. The applicant considered that in the circumstances the authorities were under an obligation to provide him with free housing. His civil action against the municipality was dismissed in court. 7. In January 2006 the applicant lodged complaints with the State Duma and the Prosecutor General of the Russian Federation against the judges who had dealt with his civil case. In particular, the applicant, using abusive language, accused them of having taken bribes from the defendant in the amount of USD 30,000, falsification of evidence, terrorism, abuse of power as well as inciting racial and ethnic hatred. 8. On 13 March 2006 the applicant was arrested under suspicion of having committed defamation of a judge and deliberately false denunciation. 9. On 14 March 2006 the Meshanskiy District Court of Moscow (Мещанский районный суд г. Москвы) remanded the applicant in custody. His detention on remand was subsequently extended at regular intervals by relevant detention orders. 10. The investigator ordered the applicant’s psychiatric evaluation in the State Academic Centre for Social and Forensic Psychiatry in Moscow (Государственный научный центр социальной и судебной психиатрии им. В.П. Сербского) (“the Forensic Psychiatry Centre”). 11. On 20 June 2006 the experts concluded that he showed symptoms of paranoid personality development, was in need of an outpatient supervision and treatment. At the same time they concluded that the applicant was sane, fit to stand trial and highlighted that he had no history of mental disorders. 12. On 1 August 2006 the prosecution transferred the applicant’s case to the Moscow City Court (Московский городской суд) for examination. The City Court ordered an additional forensic psychiatric examination by the Forensic Psychiatry Centre. 13. On 21 November 2006 the experts concluded that the applicant was suffering from a chronic mental disorder - paranoid personality development – and needed involuntary treatment in a specialised psychiatric facility. The experts based their assessment, inter alia, on the applicant’s “overvalued” ideas expressed in numerous petitions to various authorities “in a grotesque form”, attempts to “find the truth”, contradictions in his opinions, ambivalence etc. The experts also concluded that the applicant had been insane at the time of the impugned offences and unfit to stand trial. 14. On an unspecified date the City Court ordered another forensic psychiatric examination of the applicant by the Forensic Psychiatry Centre. 15. On 7 February 2007 the new report confirmed the findings of the previous report of 21 November 2006. In addition, the experts found that the applicant was a danger to society, stating as follows: “[T]aking into account that [the applicant] shows, in subjectively significant situations, a tendency towards rapid formation of overvalued ideas which sometimes reach a delusional level, broadening of the circle of persons brought into the focus of these emotions, grave emotional disturbances with non-corrective behavior, rejection of regime requirements, lack of critical attitude to his [emotional] state, dissimulation, [he] is a danger to the society and needs compulsory treatment in a specialised psychiatric hospital”. 16. On 20 February 2007 the City Court having established the principal facts in respect of the abovementioned offences discontinued criminal proceedings against the applicant due to his insanity. The court referring to the findings and recommendations of the psychiatrists ordered the applicant’s involuntary treatment in a psychiatric hospital. 17. On 5 April 2007 the Supreme Court of the Russian Federation summarily upheld the lower court’s decision. 18. In April 2007 the applicant was transferred from a remand prison to a psychiatric facility. In June 2008 he was released from the hospital. | 1 |
test | 001-183387 | ENG | RUS | COMMITTEE | 2,018 | CASE OF SHAKULINA AND OTHERS v. RUSSIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Helen Keller;Pere Pastor Vilanova | 6. The list of applicants and the relevant details of the applications are set out in the appended table. 7. On 5 April 2004 the Vyborgskiy District Court of St Petersburg (“the Vyborgskiy District Court”) declared the applicant legally incapable in her absence. The applicant submitted that she had only learnt about that judgment on 19 April 2004. She lodged her appeal twice, accompanied by requests that the court reset the time-limit for lodging the appeals. On 11 October 2004 the Vyborgskiy District Court rejected the applicant’s latest request that the court examine her appeal. On 22 December 2004 the St Petersburg City Court upheld that decision on appeal. 8. On 27 February 2009 the Constitutional Court of Russia declared unconstitutional the practice of divesting people of their legal capacity in their absence, unless their absence resulted from specific circumstances. 9. On 8 June 2009 the applicant sought the reopening of her case in view of the judgment of the Constitutional Court of 27 February 2009. After an initial refusal, on 24 September 2009 the St Petersburg City Court quashed the judgment of 5 April 2004 and remitted the applicant’s case for a fresh examination. 10. On 26 November 2009 the Vyborgskiy District Court discontinued the incapacitation proceedings, as the plaintiff, the applicant’s daughter, had failed to attend. The applicant thus regained her legal capacity. 11. On 7 March 2008 an emergency doctor was called to attend to the applicant and found that she required hospitalisation. A psychiatrist examined the applicant on her admission to the hospital and confirmed that she was in need of in-patient care. 12. On 10 March 2008 the applicant’s brother, who was her legal guardian at the relevant time, consented to her confinement. Four days later his status as a legal guardian was cancelled and transferred to the hospital. On 31 March 2008 the hospital, in that capacity, agreed to the applicant’s involuntary confinement. 13. According to the applicant, the hospital dismissed her requests to be discharged, and she was not allowed to use a mobile phone, send correspondence or receive visitors. When the applicant contacted her lawyer allegedly seeking to update her application before the Court and to challenge her involuntary confinement, he attempted to meet her at the hospital on 13 March and 1 April 2008, but was refused permission to do so. 14. The applicant’s lawyer then lodged a complaint against the hospital, asserting his right to communicate with his client. The lawyer supported his complaint with a copy of the power of attorney that the applicant had issued to him on 21 June 2005 for her application to the Court. On 9 February 2009 the Primorskiy District Court of St Petersburg (“the Primorskiy District Court”) dismissed the complaint, having noted that the applicant lacked legal capacity to appoint a lawyer. 15. On 10 March 2009 an expert commission issued a two-page report diagnosing the applicant with schizophrenia. It relied on the applicant’s medical history since 2001 and her state of health leading to her hospitalisation in 2008. The experts further stated that during her stay at the hospital, the applicant had been avoiding contact; she had been complaining about her confinement; she had remained suspicious and negative and had maintained her delusional ideas about her neighbours, doctors and other patients. They concluded that the applicant required further psychiatric treatment in the hospital. 16. On the same day the Primorskiy District Court held a hearing concerning the applicant’s involuntary treatment in the psychiatric hospital. The applicant’s doctor presented to the court the expert commission’s report of 10 March 2009 and her own opinion confirming that the applicant needed compulsory treatment in the hospital. The applicant was absent from the courtroom during that presentation, but her State-appointed lawyer, Ms L., was present. After the presentation the applicant was brought into the courtroom and was informed about her rights. She then said that she wanted to go home and did not wish to continue her treatment. The judge did not ask her any other questions. Ms L.’s only intervention during the whole hearing was to state that she “had no objections” to the applicant’s continued confinement in the psychiatric hospital. The Primorskiy District Court concluded that the applicant required involuntary treatment in the hospital. 17. On 21 April 2009 the St Petersburg City Court quashed the judgment of 9 February 2009, having flagged a violation of counsel’s right to meet with his client. On 25 May 2009 the applicant met her lawyer. 18. On 8 June 2009 the applicant asked the court to reset the time-limit for lodging an appeal against the judgment of 10 March 2009. On 30 June 2009 the District Court rejected the request. 19. On 15 September 2009 the St Petersburg City Court quashed the decision of 30 June 2009 and reset the time-limit for lodging an appeal against the judgment of 10 March 2009. On 30 September 2009 the St Petersburg City Court examined the appeal and found the applicant’s involuntary treatment lawful. 20. Once the applicant had regained her legal status on 26 November 2009 (see paragraph 10 above), she refused to continue her treatment in the hospital and was discharged on 31 December 2009. 21. On 11 November 2010 the Petrodvortsovyy District Court of St Petersburg (“the Petrodvortsovyy District Court”) declared the applicant legally incapable. It noted that in view of the fact that Russian law did not provide for partial incapacitation to take into account the degree of a person’s mental disorder, it had no alternative but to deprive the applicant of her full legal capacity. On 17 March 2011 the St Petersburg City Court dismissed an appeal lodged by the applicant, having fully endorsed the Petrodvortsovyy District Court’s reasoning. 22. On 27 June 2012 the Constitutional Court of Russia examined a complaint lodged by the applicant in relation to her incapacitation and invited Parliament to amend the legislation and introduce the possibility of partial incapacitation (see paragraph 39 below). On 30 December 2012 the Russian Civil Code was amended accordingly; the entry into force of the amendment was delayed until 1 March 2015 (see paragraph 40 below). 23. Following the Constitutional Court’s ruling, on 26 March 2013 the Petrodvortsovyy District Court remitted the applicant’s case for a fresh examination. However, on 6 August 2013 the Petrodvortsovyy District Court confirmed its previous decision stripping the applicant of her full capacity, having stated that the amendment to the law had not yet entered into force. On 28 November 2013 the St Petersburg City Court upheld the judgment on appeal. 24. On 29 June 2009 the Promyshlennyy District Court of Stavropol, acting in the applicant’s absence, stripped him of legal capacity. The judgment of 29 June 2009 was not appealed against and it therefore became final. 25. In October 2012 the applicant sought the restoration of his legal capacity. On 6 March 2013 the Kochubeyevskiy District Court of the Stavropol Region (“the Kochubeyevskiy District Court”) dismissed the applicant’s request. On 4 June 2013 the Stavropol Regional Court upheld that decision on appeal. 26. On 25 July 2016 the Kochubeyevskiy District Court granted the applicant’s application to be declared partially capable. 27. On 27 January 2009 the Koptevskiy District Court of Moscow (the “Koptevskiy District Court”) declared the applicant legally incapable in his absence. The judgment of 27 January 2009 was not appealed against and it therefore became final. 28. On 20 January 2013 the applicant appealed against the judgment of 27 January 2009, having asked a court to reset the time-limit for lodging the appeal as he had not been informed about the incapacitation proceedings, had not attended them and had not received a copy of the judgment. 29. On 14 February 2013 the Koptevskiy District Court reset the time-limit for lodging an appeal. On 10 September 2013 the Moscow City Court quashed that decision and dismissed the applicant’s request to have the time-limit for submitting his appeal reset. 30. On 7 August 2003 the Dmitrovskiy District Court of the Moscow Region (“the Dmitrovskiy District Court”) divested the applicant of full legal capacity in his absence. The judgment of 7 August 2003 was not appealed against and it therefore became final. 31. The applicant allegedly learnt that he had been stripped of legal capacity only in 2012. On 24 December 2012 he asked the Dmitrovskiy District Court to reset the time-limit for lodging an appeal against the judgment of 7 August 2003. On 22 January 2013 the Dmitrovskiy District Court dismissed the request. 32. On 29 May 2013 the Moscow Regional Court examined an appeal lodged by the applicant against the decision of 22 January 2013. It reset the time-limit and at the same hearing examined the merits of an appeal lodged by the applicant against the judgment of 7 August 2003. Having found that in 2003 the Dmitrovskiy District Court had examined the applicant’s case in his absence despite the lack of any information on the applicant’s ability to attend, the Moscow Regional Court quashed the judgment of 7 August 2003. It then proceeded to re-examine the merits of the case. After having heard the parties and basing its findings on a medical expert report of 2003, the Moscow Regional Court again declared the applicant legally incapable. 33. On 4 September 2006 the Zyuzinskiy District Court of Moscow (“the Zyuzinskiy District Court”) declared the applicant legally incapable. The applicant, who was being treated in a psycho-neurological facility at the time, did not attend the hearing. 34. The applicant allegedly only learned about that judgment in 2013. She asked the court to reset the time-limit for lodging an appeal in view of the lack of notification about the proceedings and her absence from the hearing. 35. On 24 October 2013 the Zyuzinskiy District Court refused to reset the time-limit, having also noted that the Russian law in force at the material time had not called for the mandatory presence of the applicant at the court hearing. On 28 January 2014 the Moscow City Court upheld the decision of 24 October 2013 on appeal. | 1 |
test | 001-183866 | ENG | TUR | COMMITTEE | 2,018 | CASE OF BAYAR v. TURKEY | 4 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time) | Paul Lemmens;Stéphanie Mourou-Vikström | 5. The applicant was born in 1982 and lives in Bern, Switzerland. At the time of the events giving rise to the present application, he was the editorin-chief of Ülkede Özgür Gündem, a daily newspaper published in Turkey. 6. On 6 July 2004 an article written by Mr B.G. entitled “Analysing the Kurdish dynamic correctly” was published in Ülkede Özgür Gündem. In his article, Mr B.G. stated his views on the role of Abdullah Öcalan, the leader of the PKK (an illegal armed organisation), a number of organisations associated with the PKK in regional and international politics and political developments in Turkey. Next to the article a photograph of Abdullah Öcalan shaking hands with a group of armed men was published. 7. On 8 July 2004 the public prosecutor at the Istanbul Assize Court filed a bill of indictment, charging the applicant with disseminating propaganda in favour of the KONGRA-GEL under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) on account of the article published on 6 July 2004. In the indictment, the public prosecutor quoted the following passage from the article: “... Abdullah Öcalan, who has contributed to the essential dynamic of the Kurdish movement and the HPG, the PJA and the KONGRA-GEL, organisations which have acted as military, political and ideological leaders and which have represented his leadership,... [must be well understood]”. The public prosecutor stated that a photograph of Abdullah Öcalan in which he was standing in a rural area holding a weapon had been published in the newspaper, next to the article. The public prosecutor considered as a result that the applicant had disseminated propaganda in favour of a terrorist organisation inciting others to violence or other methods of terrorism. Subsequently, criminal proceedings were launched against the applicant before the Istanbul Assize Court. 8. During the proceedings the applicant maintained that the article in question had been a news article and had not contained propaganda inciting to violence. 9. On 24 May 2005 the Istanbul Assize Court convicted the applicant of disseminating propaganda in favour of the PKK/KONGRA-GEL under section 7(2) of Law no. 3713 and sentenced him to six months’ imprisonment and a fine. In its judgment, the Istanbul Assize Court held that the content of the article and the publication of Abdullah Öcalan’s photograph amounted to dissemination of propaganda in favour of the PKK/KONGRA-GEL. 10. The applicant appealed. In his appeal petition, referring to a number of the Court’s judgments, the applicant claimed that he had not had the intention of disseminating propaganda in favour of a terrorist organisation and that his criminal conviction had been in breach of Articles 6 and 10 of the Convention as he had been exercising his right to impart information. He also noted that the first-instance court had failed to examine the article in its entirety. 11. On 16 May 2006 the principal public prosecutor at the Court of Cassation returned the case file to the first-instance court and requested that the latter revise its judgment in the light of the recent legislative amendments. 12. On 28 September 2006 the Istanbul Assize Court once again convicted the applicant under section 7(2) of Law no. 3713, with the same reasoning that it had adopted on 24 May 2005. The court sentenced the applicant to a fine of 1,802 Turkish liras (TRY). 13. The applicant appealed. 14. On 18 November 2009 the Court of Cassation upheld the judgment of 28 September 2006. 15. According to a document dated 15 January 2010, signed by the President of the Istanbul Assize Court and the Istanbul public prosecutor, the applicant was required to pay the fine of TRY 1,802. | 1 |
test | 001-156510 | ENG | MDA | ADMISSIBILITY | 2,015 | SPINU v. THE REPUBLIC OF MOLDOVA | 4 | Inadmissible | Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | The applicants, Mr Dumitru Spinu and Mr Sergiu Spinu, are Moldovan nationals, who were born in 1943 and 1974 respectively and live in Peticeni. They were represented before the Court by Mr V. Tarnovschi, a lawyer practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. The applicants are the husband and the son of the late Varvara Spinu. On the evening of 21 May 2008, at approximately 10 p.m., the first applicant and Varvara Spinu were returning home when Varvara Spinu fell into a trench located on the public road. The next morning Varvara Spinu was taken to a hospital and diagnosed, inter alia, with a fracture of her spine. On 11 June 2008 she succumbed to the injuries and died. On 13 June 2008 the local police office initiated an investigation into Varvara Spinu’s death and found that the trench located on the public road in front of the applicant’s house had been dug by a contractor of a mobile telephony company for the purpose of instalment of optical cables. The trench was not marked and/or secured in any way. On 13 February 2009 the Călăraşi Prosecutor’s Office decided not to initiate criminal proceedings in respect of the death of Varvara SpinuCălăraşi District Court dismissed the applicant’s appeal while finding that the investigation carried out by the Prosecutor’s Office had been effective and complete. The decision of the Călăraşi District Court was handed to the applicant on 15 June 2009. The parties did not inform the Court about any other proceedings in the case. | 0 |
test | 001-184672 | ENG | ISL | CHAMBER | 2,018 | CASE OF EGILL EINARSSON v. ICELAND (No. 2) | 3 | No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström | 5. The applicant was born in 1980 and lives in Kópavogur. At the material time he was a well-known personality in Iceland who for years had published articles, blogs and books and appeared in films, on television and other media, under pseudonyms. 6. Some of the applicant’s published views attracted some attention, as well as controversy. These included, inter alia, his views about women and their sexual freedom. In some instances his criticism had been directed towards named individuals, often women, and in some cases his words could have been construed to mean that he was in fact recommending that they should be subjected to sexual violence. The applicant had often justified such conduct by stating that the material had been meant in jest and that those who criticised him lacked a sense of humour (see Egill Einarsson v. Iceland, no. 24703/15, § 16, 7 November 2017). 7. In November 2011, an 18-year-old woman reported to the police that the applicant and his girlfriend had raped her. In January 2012 another woman reported to the police that the applicant had committed a sexual offence against her a few years earlier. Upon the completion of the police investigation the Public Prosecutor, on 15 June and 15 November 2012, dismissed the cases in accordance with Article 145 of the Act on Criminal Procedures, because the evidence which had been gathered was not sufficient or likely to lead to a conviction. The applicant submitted a complaint to the police about false accusations made against him by the two women. This case was also dismissed. 8. On 22 November 2012 Monitor, a magazine accompanying Morgunblaðið (a leading newspaper in Iceland), published an interview with the applicant. A picture of the applicant was published on the front page, and in the interview the applicant discussed the rape accusation against him. The applicant stated several times that the accusations were false. He stated, inter alia, that it was not a priority for him for the girl’s name to be disclosed and that he was not seeking revenge against her. He accepted that, having placed himself in the media spotlight, he had to tolerate publicity which was not always “sunshine and lollipops” but criticised the way the media had covered his case. When asked about the girl’s age, he responded that the girl had been in a club where the minimum age had been 20 years and that it had been a shock to find out later that she had been only 18 years old. When asked about his complaints against the girl for allegedly wrongful accusations, he stated again that he was not seeking revenge against those who had reported him to the police, but that it was clear that they had had ulterior motives. He hoped that the police would see that it was important to have a formal conclusion in the case and that the documents in the case were “screaming” conspiracy. 9. On the same day a Facebook page was set up for the purpose of protesting about the interview and encouraging the editor of Monitor to remove the applicant’s picture from its front page. Extensive dialogue took place on the site that day. Later that day, X posted a comment on the abovementioned Facebook page which stated, inter alia: “This is also not an attack on a man for saying something wrong, but for raping a teenage girl ... It is permissible to criticise the fact that rapists appear on the cover of publications which are distributed all over town ...”. 10. On 28 November 2012, the applicant’s lawyer sent a letter to X requesting that she withdraw her statements, admit they were unfounded, apologise in the media and pay the applicant punitive damages, which would be donated to charity. By letter the following day, X’s lawyer opposed the applicant’s claims and submitted that the impugned statements were not defamatory. Furthermore, the lawyer informed the applicant’s lawyer that X had removed the statement in question from Facebook. 11. On 17 December 2012, the applicant lodged defamation proceedings against X before the District Court of Reykjavík and asked for her to be punished, under the applicable provisions of the Penal Code, for publishing the statements in question. The applicant further requested that the statements “This is also not an attack on a man for saying something wrong, but for raping a teenage girl ...” and “It is permissible to criticise the fact that rapists appear on the cover of publications which are distributed all over town ...” be declared null and void. Moreover, the applicant requested that X be ordered to pay him 1,000,000 Icelandic krónur (ISK; approximately 8,800 euros (EUR)) in non-pecuniary damages under the Tort Liability Act, plus interest, ISK 150,000 (approximately 1,300 EUR) for the cost of publishing the main content and the reasoning of the final judgment in the case in the media under Article 241 of the Penal Code, and the applicant’s legal costs. 12. By a judgment of 1 November 2013, the District Court found that X’s comment on Facebook had been defamatory and declared the statements null and void. However, the court dismissed the applicant’s claim for the imposition on X of a criminal punishment under the Penal Code, as well as rejecting the claim to have X carry the cost of publishing the main content and reasoning of the judgment in a newspaper. Furthermore, the District Court did not award the applicant non-pecuniary damage and concluded, finally, that each party should bear its own legal costs. 13. The judgment contained the following reasons: “... The [applicant] claims damages in the amount of ISK 1,000,000 and bases his demand on the general rules of tort law and on Article 26 of Act no. 50/1993 [Tort Liability Act]. According to the aforementioned, it is clear that [X] made defamatory insinuations about [the applicant]. However, when assessing the damage suffered by [the applicant], it has to be taken into account how [the applicant] has built a certain reputation by his conduct in public. Notwithstanding the extensive disputes about his comment made under the name of Gillz, it cannot be seen that he took a clear stand against sexual violence until complaints against him materialised. Nevertheless [the applicant] had full reason to clarify his situation in this respect, taking into account that material stemming from him is often very ambiguous and provocative, and could easily be interpreted as an incitement to this type of violence. When assessing the possible damage to [the applicant], the distribution of the comments which was, as stated before, limited to the distribution entailed in publications on the said Facebook page, together with hundreds or thousands of other comments, has to be taken into account. Additionally, the comments were removed from the website when [the applicant] so requested. Lastly, it should be considered that by declaring the comments null and void, as this judgment concludes, [the applicant] has received full judicial satisfaction. In light of all the above-mentioned considerations there is no reason to order [X] to pay non-pecuniary damages. Furthermore, [the applicant’s] claim to have [X] carry the cost of publishing the main content and the reasoning of the judgment in a newspaper will not be accepted. The impugned comment was published on a Facebook page and therefore it is not necessary to incur the costs of publishing the judgment in any other way. In light of the conclusion of the judgment, and taking account of all the facts, it is appropriate that each party bears its own legal costs [er rétt að málskostnaður falli niður].” 14. By judgment of 18 December 2014 the majority of the Supreme Court (two out of three judges) upheld the District Court’s decision to declare the statements null and void. Furthermore, the Supreme Court upheld the District Court’s decision not to award damages to the applicant and that each party should bear its legal costs. In its assessment regarding that issue the Supreme Court referred to Article 73 (3) of the Constitution, the principle of proportionality and the reasoning of the District Court. 15. The dissenting judge agreed with the majority to declare the impugned statements null and void. However, the judge found that the criteria set out in the Tort Liability Act for the granting of non-pecuniary damages were fulfilled in the case and the applicant should be awarded 200,000 ISK in non-pecuniary damages as well as his legal costs before the District Court and the Supreme Court. | 0 |
test | 001-152778 | ENG | ALB | COMMITTEE | 2,015 | CASE OF SILIQI AND OTHERS v. ALBANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku | 4. The applicants were born in 1937, 1933, 1941 and 1934, respectively, and live in Albania and the United States of America. 5. On 30 December 1994 the Tirana Restitution and Compensation of Properties Commission (“the Commission”) recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 2,461.97 sq. m and decided to restore the property. Since buildings had been constructed on the land by a third party, the Commission ruled that the third party should pay rent for the land or re-purchase the land pursuant to an agreement to be entered into between the parties. It also recognised the applicants’ right to first refusal of the buildings. 6. On 18 February 1997 the applicants lodged a civil claim with the Tirana District Court seeking the annulment of a 1996 sale contract entered between the State and the third party over two plots of lands measuring 197 sq. m and 195 sq. m, which they claimed to own. The applicants also sought the payment of rent by the third party pursuant to the 1993 Property Act. In the same set of proceedings, the third party lodged a counter action requesting the partial annulment of the Commission decision. 7. On 24 April 2002 the Supreme Court gave a final decision dismissing the applicants’ claims. It also dismissed their right to first refusal as regards the buildings on the plots of land which had been granted by the Commission. It decided that the applicants are entitled to compensation in respect of the plot of land measuring 2,461.97 sq. m to be determined in accordance with the 1993 Property Act. 8. On 22 October 2004 the Constitutional Court, sitting as a full bench, found no violation of the applicants’ right to a fair trial. 9. To date, no compensation has been paid. | 1 |
test | 001-145363 | ENG | RUS | COMMITTEE | 2,014 | CASE OF OLEG ZHURAVLEV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Erik Møse;Julia Laffranque;Khanlar Hajiyev | 6. On 19 July 2010 the Supreme Court of the Chuvash Republic found the applicant guilty of corruption and an abuse of official powers and gave him a custodial sentence. The applicant appealed alleging, in particular, that he was innocent, that the prosecution had been unlawful and the trial court had applied the criminal law erroneously. 7. On 26 October 2010 the Supreme Court of Russia quashed the judgment on appeal and remitted it for a new hearing. 8. On 2 March 2011 the Supreme Court of the Chuvash Republic found the applicant guilty as charged before and sentenced him to five years’ imprisonment. The applicant lodged an appeal. He complained, among other matters, about erroneous interpretation of law, improper assessment of evidence by the courts, and an excessive severity of the penalty 9. On 23 May 2011 the Supreme Court of Russia upheld the judgment on appeal reducing the sentence to four years’ imprisonment. 10. Between 2 March and 16 June 2011 the applicant was held in remand prison IZ-21/1 in the Cheboksary Region. The facility was overcrowded. Thus, cell 39 measuring 23 sq. m was equipped with fourteen sleeping places and accommodated up to ten inmates. 11. The applicant submitted the following evidence in support of the above allegations: his complaints to the prison management and their reply and statements by three cellmates. | 1 |
test | 001-166965 | ENG | UKR | CHAMBER | 2,016 | CASE OF PIVOVARNIK v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) | André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 6. The applicant was born in 1977 and prior to his arrest his permanent address had been in Svitlovodsk, Kirovograd Region. 7. On an unspecified date prior to his arrest the applicant had been diagnosed with hepatitis C (“HCV”). 8. On 26 June 2014 the applicant was arrested on suspicion of committing a drug-related offence and on 7 July 2014 placed in Kirovograd Remand Prison no. 14 (“the prison”). 9. On 27 June 2014 the Svitlovodsk Court remanded the applicant in custody. The applicant appealed, arguing in particular that he was suffering from HCV. On 14 July 2014 the Kirovograd Regional Court of Appeal upheld the detention order. 10. The applicant’s pre-trial detention was subsequently extended until his conviction. 11. On 24 March 2015 the Svitlovodsk Court convicted the applicant of the unlawful purchase, possession and transportation of drugs and sentenced him to three years’ imprisonment. 12. On 13 October 2015 the Kirovograd Regional Court of Appeal amended the applicant’s sentence and released him on probation. 13. On 8 July 2014 the prison governor sent a letter to the Svitlovodsk Central Hospital. According to the letter, the applicant had informed the prison authorities that he had been diagnosed with HCV in 2013 in Svitlovodsk but that he had not provided any more detailed information in this respect. The governor asked the hospital to confirm whether the applicant had indeed been examined for HCV and if so, what the results of the examination had been. The prison received no reply. 14. On 6 August, 27 November and 3 December 2014 and on 9 January and 4 June 2015 the applicant consulted the prison doctor, complaining in particular of discomfort in the hypochondrium (below the lower ribs), on the right-hand side. According to the applicant’s medical record, the applicant claimed to be suffering from HCV, but the doctor noted that there were no documents to support this diagnosis. The applicant asked for a medical certificate, to be provided to the courts examining his criminal case. According to three separate reports signed by three prison employees, during three of those consultations – those of 6 August and 27 November 2014 and 4 June 2015 – the applicant was offered an opportunity to undergo a “blood test” (it is unspecified of which type) to verify whether he had HCV but refused without giving any reasons. The applicant denied the latter allegation. 15. On 13 August 2014 the prison’s medical unit issued a certificate stating that the applicant, according to his own statement, was suffering from HCV and that during his stay in the prison he had consulted the prison doctor on several occasions in this connection and received treatment for his symptoms. 16. On 3 December 2014 the prison governor informed the applicant’s lawyer that on 6 August and 27 November 2014 the applicant had consulted the prison doctor concerning his HCV and had been prescribed treatment for his symptoms. The governor went on to state that it was planned that a consultation would be arranged with an infectious diseases specialist who would be able to order the necessary examinations and prescribe treatment for the applicant. 17. On 3 March 2015 a blood test, apparently an HCV antibody test, came up positive. On the same day an ultrasound examination showed that the applicant’s liver had undergone diffuse changes. 18. On 8 June 2015 the head of the prison’s medical unit issued a certificate which stated that the applicant’s health had worsened in the previous two months and that he was suffering from fatigue, nausea, and weight loss. The certificate also stated that in order to ascertain the state of his health the applicant needed to be examined by an infectious diseases specialist of the Kirovograd Central City Hospital (“the City Hospital”). 19. On 19 June 2015 the acting President of the Section, upon the applicant’s request under Rule 39 of the Rules of Court, decided to indicate to the Government that they should present the applicant urgently for medical examination by a specialised doctor of the City Hospital; secure for the applicant immediately, by appropriate means, treatment to his state of health; and inform the Court by 17 July 2015 about the applicant’s state of health and the measures undertaken. 20. From 6 until 9 July 2015 the applicant underwent an in-patient examination at the City Hospital in the course of which a number of blood tests and an ultrasound examination were conducted and the applicant was examined by a number of specialists. 21. On 9 July 2015 the hospital issued an opinion according to which the applicant was suffering from сhronic HCV “in an inactive phase” and liver impairment. He was prescribed hepatoprotectors (Carsil and Ursohol). It was recommended that he undergo additional blood tests, namely the polymerase chain reaction (PCR) test for HCV, and, within ten days, another general blood test and a biochemical blood test. The applicant was to remain under the supervision of a gastroenterologist and an infectious diseases specialist. 22. On 14 July 2015 the Government informed the Court about the applicant’s examination at the City Hospital. 23. On 19 August 2015 the applicant complained to the Court that the recommendations of the City Hospital doctors were not being followed. On 26 August 2015 the Court invited the Government to comment on those allegations. 24. On 1 September 2015 the applicant started to be treated with hepatoprotector medicine. On 3 September 2015 he underwent general and biochemical blood tests which, according to the Government, revealed no abnormality. On 15 September 2015 he was consulted by a gastroenterologist and an infectious diseases specialist, who confirmed the diagnosis of inactive chronic hepatitis. 25. On 15 September 2015 the Government informed the Court of the measures taken from 1 to 15 September 2015. | 1 |
test | 001-183276 | ENG | ROU | ADMISSIBILITY | 2,018 | S.C. I.F.N. COMAUTOSPORT LEASING S.A. v. ROMANIA | 4 | Inadmissible | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 1. The applicant, S.C. I.F.N. Comautosport Leasing S.A., is a Romanian company, whose registered office is in Bistriţa. It was represented before the Court by Mr V. Petra, a lawyer practising in Bistriţa. 3. On 6 June 2007 the applicant company concluded a vehicle leasing agreement with a third party, the private company V. C. S.R.L. (the lessee), managed by E.V. 4. The contract stated, inter alia, that monthly instalments were to be paid to the applicant company until 5 June 2011, when the property right concerning the vehicle was to be transferred to the lessee, V. C. S.R.L. The contract further stipulated that the lessee was not allowed to use the vehicle for transporting merchandise, unless the lessor had given his or her prior written approval thereto. The contract also stated that the failure of the lessee to pay two successive instalments could entitle the lessor to ask for the termination of contract (reziliere), in accordance with the general principles of contract law. 5. On 22 July 2009 the Customs National Authority squad caught E.V., who was driving the leased vehicle, transporting 120 litres of alcohol, without having the appropriate excise stamp or documentation concerning their provenience. The authorities issued a contravention report, sanctioning E.V. to a fine of 20,000 RON. They also confiscated the vehicle, in accordance with the provisions of Article 220 of the Code of Fiscal Procedure. The report mentioned that the vehicle belonged to the applicant company and was leased to the company V. C. S.R.L. 6. The report was contested by the applicant company. It complained that the vehicle, which was its property, was confiscated from its owner even if it had not participated to and had not had any knowledge about the commission of the act sanctioned by the fiscal authorities. The applicant also mentioned that following the confiscation, the lessee ceased to pay the agreed instalments. It argued that the circumstances constituted a deprivation of property without appropriate compensation. 7. On 21 December 2009 the Cluj Napoca District Court dismissed the applicant company’s complaint, mentioning that the sanction was in accordance with the law, namely the Code of Fiscal Procedure. Noting that the applicant company had concluded a leasing agreement with the company V.C. S.R.L., the court considered that all issues referring to alleged breaches of contract were to be dealt with under the contract responsibility law, and not within the framework of the fiscal procedure, which was meant to determine the lawfulness of the contravention report. 8. The applicant appealed, without addressing the District Court’s arguments referring to the remedy allegedly offered by the contract law. 9. The Cluj County Court dismissed the appeal on 28 April 2010, finding that the lower court’s judgment was lawful and well-founded. The County Court further held that the Code of Fiscal Procedure imposed the sanction of confiscation of the vehicle used for committing a contravention, without differentiating between the owner or the user of the vehicle subject to confiscation. 10. The domestic legal provisions and practice of the Romanian Constitutional Court relevant for the present case are set out in detail in the case of S.C. Service Benz Com S.R.L. v. Romania (no. 58045/11, §§ 15-20, 4 July 2017). | 0 |
test | 001-140773 | ENG | MDA | CHAMBER | 2,014 | CASE OF SANDU v. THE REPUBLIC OF MOLDOVA | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 5. The applicant was born in 1958 and lives in Chișinău. 6. At the time of the events the applicant was the manager of a State-owned veterinary clinic. 7. According to the official version of events, on 25 September 2006 a person (C.) came to the applicant’s office at around 9.10 a.m. and expressed his wish to have his dog vaccinated and to obtain a document required for travelling abroad with that dog. The applicant then told him that the process could last two to three months, but could be sped up. In exchange for 1,000 Moldovan lei (MDL, approximately 63 euros (EUR) at the time), the applicant said that he would issue C. with the relevant document without seeing the dog, knowing that it had not been vaccinated. 8. Immediately after that, C. went to Rîşcani police station in Chişinău and asked for help in catching the applicant in the act of receiving the bribe. In his report to the police made at that time, C. noted that he had asked for vaccination documents for his six-month old dog called “Ghera”, which was a variety of terrier. 9. In response to C.’s report, a number of procedural acts were carried out that same morning: (i) V., an officer at Rîşcani police station, issued an order to initiate a criminal investigation, which was countersigned by a prosecutor on the same day at 4.40 p.m.; (ii) a prosecutor from the Rîşcani prosecutor’s office issued an order giving subject-matter jurisdiction over the investigation of the case to Rîşcani police station, while noting that jurisdiction to handle such cases normally lay with the Centre for Fighting Economic Crime and Corruption.; (iii) the Prosecutor General’s Office issued an order giving territorial jurisdiction to Rîşcani police station; (iv) V. issued a search warrant for the applicant’s office (countersigned by the Rîşcani District Court’s investigating judge on 26 September 2006); (v) V. issued a second order to trace the source of the money paid as a bribe; (vi) a third order was issued by V., pursuant to which the money to be given as a bribe was to be marked with a special substance; and (vii) MDL 1,000 in five banknotes of MDL 200 each was marked by V. in the presence of C. and a specialist at 11 a.m. and a record of this was drawn up. 10. At approximately 11.30 a.m. on the same day C. entered the applicant’s office and told him that he only had MDL 400. The applicant took the money, stamped and made the relevant notes in the dog’s passport. At around 12.30 p.m. officers from Rîşcani police station entered the applicant’s office and discovered MDL 400 in his pocket. The money was subsequently confirmed as bearing the specific mark made earlier for the purpose of proving the act of bribe taking. 11. On 27 September 2006 the applicant was released against an undertaking not to leave the city. 12. In the record of an interrogation made on 29 November 2006, it is recorded that the applicant declared that there were individuals who, for a long time, had wanted to frame him due to his past conflicts with them. He also mentioned a criminal complaint concerning an assassination attempt that took place on 4 April 2004 which had not been examined and which meant, in the applicant’s opinion, that someone had a motive for making a false accusation against him. 13. On 8 December 2006 the Rîşcani District Court transferred the case to the Botanica District Court in Chişinău for examination, as the latter court had territorial jurisdiction over the matter. 14. On 27 March 2007 the applicant’s lawyer asked the court to exclude all the evidence obtained as a result of the procedural acts of 25 September 2006, on the basis that it had been obtained in violation of territorial and subject-matter jurisdiction. The court twice postponed the hearing in order for the prosecution to submit evidence in this respect. 15. On 3 April 2007 the prosecution submitted the Prosecutor General’s order of 25 September 2006 (see paragraph 9 above) giving territorial jurisdiction to Rîşcani police station. The order had not been included in the file before that date. The applicant’s lawyer objected to the inclusion of that document in the file, stating that its existence had never previously been mentioned and that he had serious reasons for considering that it was backdated. According to the prosecution, the order had been mistakenly annexed to another file and had been discovered shortly before submitting it to the court. According to the Government, the applicant’s lawyer did not raise an objection during the hearing of 3 April 2007, but only did so in his final submissions to the court at a hearing on 5 April 2007. 16. On 17 April 2007 the Botanica District Court found the applicant guilty of soliciting and accepting a bribe. The court referred to such evidence as C.’s initial police report and subsequent statements, those of the officers at Rîşcani police station, and to the findings of the search at the applicant’s office on 25 September 2006, during which MDL 400 had been found in his pocket. The applicant was ordered to pay a criminal fine of MDL 60,000 (approximately EUR 3,550) and was prohibited from working as a veterinary surgeon for two years. 17. In respect of the allegation made by the applicant and his lawyer that the entire event had been the result of police entrapment, the court found as follows: “The submission that the charges of bribe taking brought against [the applicant] were based on police entrapment is unsubstantiated, because [C.] declared under oath both during the criminal investigation and before the court that [the applicant] had solicited money from him in order to speed up his dog’s vaccination. Moreover, upon his arrest the accused took the money out of his pocket, which proves his intentional actions and [shows that it was] not entrapment”. 18. The applicant appealed. He noted the various procedural shortcomings concerning the timing of the issuance of the orders on 25 September 2006 and claimed that the investigative actions had taken place before the initiation of the investigation itself. He further submitted that it was strange that C. had gone to Rîşcani police station and not to the police station situated in the Botanica district, which had territorial jurisdiction to deal with the alleged offence. Nor had he gone to the police station in the district where he lived. Furthermore, according to the documents in the file, the police had given money to C. for him to bribe the applicant with, yet of the MDL 1,000 given to C. only MDL 400 had been passed on to the applicant, the remainder having disappeared. The applicant submitted that C. had been “artificially involved in the operation of handing money to me, which constitutes incitement to bribe taking”. The applicant further claimed that C. had never had a dog and had therefore had no need to have a dog vaccinated for travel abroad. He referred to the inconsistency between C.’s description of his dog (stating initially that it was a type of terrier, but later that it was a type of pitbull, while the pet passport submitted to the court was for an English cocker spaniel dog, which, in addition, belonged to another person, G.V.). Moreover, according to the documents submitted to the court the dog had been born on 18 November 2004 and thus could not have been six months old on 25 September 2006, as stated by C. Furthermore, C. had refused to say whom he had wanted to visit abroad, even though he had previously stated that he had intended to visit friends, taking his dog with him. 19. On 31 May 2007 the Chişinău Court of Appeal upheld the lower court’s judgment. In respect of the applicant’s argument of entrapment, the court repeated the reasoning of the lower court word for word. 20. The applicant appealed on points of law, essentially repeating his arguments made before the lower courts. 21. On 24 October 2007 the Supreme Court of Justice upheld the lower courts’ judgments. In respect of the applicant’s argument of entrapment, the court repeated the reasoning of the lower courts word for word. | 1 |
test | 001-183552 | ENG | ROU | COMMITTEE | 2,018 | CASE OF ANGHEL AND OTHERS v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | 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 | 001-179556 | ENG | PRT | GRANDCHAMBER | 2,017 | CASE OF LOPES DE SOUSA FERNANDES v. PORTUGAL | 1 | Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;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) | Alena Poláčková;András Sajó;Angelika Nußberger;Ganna Yudkivska;Georgios A. Serghides;Guido Raimondi;Helen Keller;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Pauliine Koskelo;Paulo Pinto De Albuquerque;Robert Spano;Vincent A. De Gaetano;Yonko Grozev;Gabriele Kucsko-Stadlmayer;Ksenija Turković;Pere Pastor Vilanova | 10. The applicant was born in 1969 and lives in Vila Nova de Gaia. The applicant’s husband, Mr António Rui Calisto Fernandes, was born in 1957. He died on 8 March 1998 following a series of medical problems that occurred after he had undergone minor surgery for the removal of nasal polyps. 11. On 26 November 1997 Mr Fernandes was admitted to the ear, nose and throat (ENT) department of Vila Nova de Gaia Hospital (“the CHVNG”) for a nasal polypectomy. He underwent the operation on 27 November 1997 and was discharged from hospital on 28 November 1997 at 10 a.m. 12. On 29 November 1997, at 1 a.m., the applicant took her husband to the emergency department of the CHVNG because he was suffering from violent headaches and was in an agitated state. There he was examined by the doctors on duty, in particular by a neurologist. The doctors considered that Mr Fernandes was suffering from psychological problems and prescribed tranquilisers. The applicant claims that they recommended her husband’s discharge but that she objected. 13. In the morning Mr Fernandes was examined by the new medical team on duty. At 10 a.m. he underwent a lumbar puncture which revealed that he had bacterial meningitis. He was transferred to the hospital’s intensive care unit. 14. On 30 November 1997 a scan revealed a cerebral oedema. On 2 December 1997 another scan revealed that the cerebral oedema had diminished. 15. On 5 December 1997, following an improvement in his clinical condition, Mr Fernandes was transferred to the hospital’s general D. ward, where he was under the care of Dr J.V. He was diagnosed with two duodenal ulcers on 10 December 1997. 16. Mr Fernandes was discharged from hospital on 13 December 1997 as his condition was considered to be stable. A follow-up scan as an outpatient was recommended. 17. On 18 December 1997 Mr Fernandes, who was suffering from vertigo and headaches, was admitted to the emergency department of the CHVNG. He was examined by Dr J.V., who kept him under observation because he had acute diarrhoea, abdominal pain and severe anaemia. Mr Fernandes received blood transfusions. 18. On 19 December 1997 an endoscopy was performed on Mr Fernandes, confirming that he had a gastroduodenal ulcer. 19. On 23 December 1997 Mr Fernandes was discharged from hospital. He was prescribed a special diet and medication. A medical appointment was fixed for 9 February 1998. 20. The applicant’s husband continued to suffer from severe abdominal pain and diarrhoea. On 9 January 1998 he returned to the emergency department of the CHVNG. He was examined by Dr J.V., who did not consider it necessary to admit him. Mr Fernandes therefore returned home the same day. 21. On 25 January 1998 Mr Fernandes was readmitted to the CHVNG. A colonoscopy revealed infectious ulcerative colitis. Bacteriological tests showed the presence of the Clostridium difficile bacterium. Mr Fernandes was placed on a drip and treated with antibiotics. 22. At the request of the applicant and her husband, Dr J.V. discharged the latter on 3 February 1998. Dr J.V. prescribed oral treatment and referred Mr Fernandes for further treatment in the hospital’s outpatient department. 23. On 17 February 1998 Mr Fernandes was admitted to Santo António General Hospital in Oporto after he was found to be suffering from chronic diarrhoea and microcytic anaemia. He underwent various examinations including a colonoscopy, an endoscopy and blood tests. The medical team considered several possible causes, including an infection with the Clostridium difficile bacterium, but all these possibilities were subsequently ruled out. However, a cytomegalovirus was detected and treatment was given. 24. On 5 March 1998 Mr Fernandes was examined by a doctor who judged the situation to be under control. 25. On 6 March 1998 Mr Fernandes’s condition deteriorated. He was examined by a doctor who suspected a possible perforated viscus. An Xray and an abdominal ultrasound were carried out. The latter showed ascites in the abdomen but did not confirm the initial diagnosis. At 5.30 p.m. the applicant’s husband was examined by another doctor who detected some resistance to abdominal palpation. A gas analysis showed metabolic alkalosis, but there were no signs of hypocalcaemia. A sigmoidoscopy was performed which showed that the applicant’s husband had rectocolitis. 26. On 7 March 1998 at 1 p.m. the applicant’s husband was placed on oxygen because he had difficulty breathing. At 3 p.m. Mr Fernandes was examined by a general physician and subsequently by a surgeon. The latter decided that urgent surgery was needed as there was widespread peritonitis. Mr Fernandes was taken to the operating theatre at 4 p.m. and was brought out again a few minutes later in order to be prepared for surgery, in particular by being given a blood transfusion. He re-entered the operating theatre at 8 p.m. He died the following day at 2.55 a.m. 27. According to the death certificate issued by Santo António Hospital, the applicant’s husband died from septicaemia caused by peritonitis and a perforated viscus. 28. On 13 August 1998 the applicant wrote a joint letter to the Ministry of Health, the regional health authority for the North region and the Medical Association, stating that she had received no response from the hospitals to explain the sudden deterioration in her husband’s health and his death. 29. On 30 October and 23 December 1998 the regional health authority for the North region sent the applicant copies of the reports drawn up by the CHVNG and Santo António Hospital on the basis of her husband’s medical records. 30. On 30 May 2000 the applicant requested an update on progress in the proceedings from the regional health authority, stating that she had still received no clear explanations concerning the events preceding her husband’s death. In a letter of 5 July 2000 the authority informed her that the file had been sent to the Inspectorate General for Health (InspeçãoGeral da Saúde – “the IGS”) with a view to the opening of an investigation. 31. By an order of 20 September 2000 the Inspector General for Health ordered an investigation (processo de averiguações). 32. On 6 November 2001 an inspector was appointed to head the investigation. 33. On 7 February 2002 the IGS informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared. 34. The applicant gave evidence on 3 April 2002. 35. On 23 September 2002 expert medical reports were requested. Reports prepared by experts in the fields of internal medicine, gastroenterology and general surgery were submitted in November 2002. According to the reports, in view of the deterioration in his state of health after the nasal polypectomy, it would not have been possible to save the applicant’s husband’s life. 36. The report of the investigation was submitted on 28 November 2002. It found, on the basis of the expert medical reports received, that the treatment administered to the applicant’s husband had been appropriate. 37. In an order of 12 December 2002 the Inspector General for Health declared the investigation closed, finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant’s husband. 38. In a letter of 17 February 2003 the applicant appealed against the order. She argued that the final report had not answered her questions, complaining about areas of uncertainty and about the duration of the investigation and its findings. 39. On 28 March 2003 the Inspector General for Health informed the applicant that he had set aside the order of 12 December 2002 and ordered the reopening of the investigation. 40. On 26 September 2005, in view of the questions raised by the applicant, the medical experts were requested to provide additional information. 41. A new investigation report was submitted on 23 November 2005, clarifying the facts and taking account of the answers provided by the three medical experts. The report stated that there were no grounds for criticising the health-care personnel who had been involved in the care of the applicant’s husband in the CHVNG and Santo António Hospital, as the patient had received proper and appropriate medical assistance in terms of his diagnosis, supervision and treatment. The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health. The report concluded as follows: “The results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice. There is therefore no need to take legal or disciplinary action against any persons involved in the [patient’s] care ...” 42. Taking this report into account, the Inspector General for Health made a fresh order discontinuing the proceedings on 27 December 2005. 43. In a letter of 1 February 2006 the applicant appealed against that order, complaining of unclear points and omissions. She also raised the possibility that the sudden deterioration in her husband’s health and his eventual death might have been caused by bacteria present in the operating theatre on the day of the nasal polypectomy, that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband. She further complained that the internal medicine and gastroenterology reports had been prepared each time by the same experts. The applicant therefore requested the reopening of the investigation and the preparation of a fresh expert medical report. 44. The Inspector General for Health wrote to the applicant on 2 March 2006 informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology. 45. The applicant gave evidence again on 27 April 2006. 46. The medical experts submitted their reports on 20 May and 10 July 2006. The expert in gastroenterology stated that it was possible, albeit rare, for a nasal polypectomy to cause meningitis. He further considered that the applicant’s husband had received appropriate treatment but that his discharge on 3 February 1998 may not have been wise in view of his clinical condition. The expert concluded that the applicant’s husband had suffered a series of complications which were uncommon but could occur, and that he had received proper medical care at the CHVNG. As to the care in Santo António Hospital, the expert considered that the condition of the applicant’s husband had been extremely complicated and had given rise to doubts as to the best way to proceed. In his report, the expert in internal medicine rejected the idea of a hospital-acquired infection on the grounds that, had that been the case, the antibiotics administered to the patient would have had no effect. In his view, the meningitis had developed unexpectedly. He further took the view that the applicant’s husband’s discharge on 3 February 1998 had been appropriate but that he should have continued to be monitored as an outpatient. 47. On 25 July 2006 a report was drawn up on completion of the investigation, which concluded as follows: “... The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the healthcare professionals involved in A.’s medical treatment... ... the decision by the assistant doctor [J.V.] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as, in order to prevent a recurrence of the colitis caused by Clostridium difficile ..., the patient should have remained in hospital under close medical supervision ... ... Hence, the doctor in question did not act with the necessary care and diligence, thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in D. ward of the CHVNG’s medical department between 25 January and 3 February 1998. The medical opinions make no criticisms of the assistance provided in the gastroenterology department of Santo António General Hospital in Oporto ...” 48. In the light of this report the Inspector General made an order on 26 July 2006 for the opening of disciplinary proceedings against Dr J.V. 49. By a letter dated 31 July 2006 the applicant was informed that the disciplinary proceedings initiated against Dr J.V. would be stayed pending the outcome of the criminal proceedings (see paragraphs 59-68 below). 50. In the meantime, on 31 August 1998, the Medical Association acknowledged receipt of the applicant’s letter of 13 August 1998, informing her that steps would be taken in response to it. 51. The case was referred to the Medical Association’s regional disciplinary council for the North region. The latter obtained the patient’s medical records and sought the opinions of four specialist panels: gastroenterology, infectious diseases, general surgery and ear, nose and throat (ENT). 52. In its report of 14 July 1999, the gastroenterology panel issued the following conclusions: “... A simple X-ray of the abdomen performed the day before the patient’s death did not detect any dilatation or perforation of the colon. The patient’s death was caused by peritonitis as a result of the perforation of the duodenal ulcer. The difficulties in diagnosing the condition were understandable in view of the patient’s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon. The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However, given that the patient had already experienced one episode of intestinal bleeding, there would have been grounds for weighing up the use of these drugs. ... The decisions to discharge the patient [from hospital] may have delayed the diagnosis or the commencement of treatment. Nevertheless, after examining the documents submitted to me, I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment. ...” 53. The conclusions of the report of 17 April 2000 by the infectious-diseases panel read as follows: “1. In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient’s death. 2. In our view, too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery. 3. The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed, although an autopsy is mandatory (mandatória) in cases of this type in order to shed light on the chain of events.” In its report the panel further held as follows: “The inhuman conditions described in this process, as regards how the patient was treated, are another example of the situation encountered on a daily basis in our hospitals; a reflection of the appalling structural and operational conditions which require urgent analysis and change. This board of the Infectious-Diseases Panel of the Medical Association must have a fundamental role in advocating the rights of patients and doctors in order to create better conditions of care for the former and better working conditions for the latter. We reiterate, once more, the need to consider the creation of infectious-diseases departments/units in hospitals of the same type as Vila Nova de Gaia Hospital, in order to improve the quality of care in this regard.” 54. In a report of 24 April 2001 the general-surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned. The report read as follows: “1. A perforated duodenal ulcer requires immediate surgery. In the present situation the perforated ulcer ... was difficult, if not impossible, to diagnose given the clinical context in which it occurred. Furthermore, in view of the seriousness of the patient’s clinical condition, the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures. ...” 55. In a report dated 1 August 2001 the ENT panel concluded as follows: “1. Meningitis following micro-endoscopic surgery for nasal polyps is described as one of the (major) complications of this type of surgery, estimated in the literature to occur in between 0.6% and 1% of cases. These figures will be higher in the event of a repeat operation, as in the present case (surgery was performed in 1993 as stated on page 314 of the file concerning the operation). 2. The post-operative CT scan of the brain carried out on 29 November 1997 does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out. 3. The description of the surgery performed on the patient on 26 November 1997 (page 310 of the file) does not give any indication of clinical malpractice or negligence. 4. No ENT procedures were performed during any of the patient’s subsequent stays in Vila Nova de Gaia Hospital or in Santo António Hospital.” 56. In an order of 28 December 2001 the regional disciplinary council for the North region decided, after having examined the conclusions of the different specialist panels, to take no further action on the applicant’s complaint, on the ground that there was no evidence of misconduct or medical negligence. 57. The disciplinary council observed the following: (i) meningitis was a complication that could arise in between 0.6% and 1% of cases following a nasal polypectomy; the figures were liable to be higher for a repeat operation, as in the case in question; (ii) the applicant’s husband had received appropriate treatment during his various hospital stays; (iii) the patient’s bacterial meningitis (Pseudomonas) had been treated properly; (iv) although the infectious-diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner, this had not been a decisive factor in the development of the clinical situation; (v) the perforation of the duodenal ulcer had been the cause of the peritonitis. This had been difficult to diagnose in view of the patient’s serious clinical condition, a fact acknowledged by the gastroenterology and general-surgery panels; (vi) although the infectious-diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery, the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia, sepsis and a fluid and electrolyte imbalance, as noted by the general-surgery panel. 58. On 29 April 2002 the applicant lodged an appeal against that order with the Medical Association’s National Disciplinary Council. On 18 March 2003 the appeal was declared inadmissible as being out of time. 3. Criminal proceedings before the Vila Nova de Gaia District Court 59. On 29 April 2002 the applicant lodged a complaint for negligent homicide with the Oporto criminal investigation and prosecution department. 60. She gave evidence on 7 June 2002. 61. By order of the Criminal Investigation Court of 27 September 2002 the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor (assistente). 62. On 7 December 2007 the public prosecutor’s office made its submissions, charging Dr J.V. with homicide by gross (grosseira) negligence. In support of their decision the prosecuting authorities referred to the report appended to the IGS order of 25 July 2006. They considered that Dr J.V. should not have discharged the applicant’s husband on 3 February 1998 in so far as the patient’s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium. 63. The case was referred to the Vila Nova de Gaia District Court. During the trial the court heard evidence from the applicant, the accused, eight doctors who had been involved in treating the applicant’s husband in the CHVNG and in Santo António Hospital, and the five medical experts appointed in the context of the proceedings before the IGS. The court also sought the opinion of the Medical Association’s Disciplinary Council. 64. On 15 January 2009 the District Court acquitted Dr J.V. of the charges against him. In particular, it took the view that the findings made by the IGS in its order of 26 July 2006 could not be taken into consideration as they had not been confirmed by the five medical experts who had given evidence during the trial. 65. As to the facts, the District Court considered, inter alia, the following to be established: “The patient’s hospitalisation on 18 December 1997 ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis. In fact, it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer; ... The decisions to discharge the patient on 13 and 23 December 1997 were appropriate, given that, in the former case, the problem of bacterial meningitis had been resolved, [the patient] had completed the course of antibiotics, he no longer had any symptoms or fever, had a slightly increased white-blood cell count, a falling neutrophil count and normal sedimentation rate, and was not complaining ... and, in the latter case, that is to say, the patient’s hospitalisation from 18 to 23 December 1997, the patient was not complaining of abdominal pain, diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ... When the patient was admitted to Santo António Hospital, laboratory tests were carried out for Clostridium difficile. The results were negative on two occasions.” 66. On the subject of the surgery preceding the death of the applicant’s husband, the District Court observed as follows: “... the patient was in a very serious clinical state, with septic shock and multiple organ dysfunction. For that reason, he was placed on artificial ventilation and vasoactive drugs and fluids were administered ..., together with hydrocortisone to deal with possible acute adrenal insufficiency (falência supra-renal aguda), and broad-spectrum antibiotics; ... in this medical context the patient’s prospects of survival were very uncertain, in view of the septic shock and multiple organ dysfunction; ... a simple abdominal X-ray and an abdominal and pelvic ultrasound scan were therefore requested, which did not reveal a perforation of the intestine.” 67. In the District Court’s view, it had not been demonstrated that the care provided to the applicant’s husband during his stay in hospital from 25 January to 3 February 1998 had not been in accordance with good medical practice, or that he should have been kept in hospital for longer. The court therefore concluded that there was no causal link between the treatment administered by Dr J.V. to the applicant’s husband in the CHVNG and his death, which had been caused by a perforated viscus that was unconnected to the colonic disease treated by the accused. It held: “...there was no evidence to show that the treatment administered by the accused for the Clostridium difficile infection was incomplete, that the patient was discharged prematurely on 3 February 1998 or, in sum, that the accused was responsible for the death of the patient on 8 March 1998.” 68. The applicant did not appeal against that judgment. 4. Proceedings before the Oporto Administrative and Fiscal Court 69. On 6 March 2003 the applicant brought an action in the Oporto Administrative and Fiscal Court against the CHVNG, Santo António Hospital and the eight doctors who had been involved in treating her husband while he was in hospital, claiming compensation for the damage she had suffered on account of her husband’s death. She alleged, inter alia, (i) that her husband’s meningitis had been caused by Pseudomonas cepacia bacteria which, she alleged, had been present in the operating theatre during the nasal polypectomy; (ii) that the meningitis had been diagnosed too late, allowing the illness to become serious; (iii) that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband’s death. 70. In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing. 71. Between 4 and 24 April 2003 the eight doctors contested their standing to be sued (ilegitimidade passiva), relying on Article 2 of Legislative Decree no. 48051 of 21 November 1967. 72. On 16 April 2007 the court gave a preparatory decision (despacho saneador) specifying which facts were considered to be established and which remained to be established. In accordance with Article 2 of Legislative Decree no. 48051 of 21 November 1967 it further held that the doctors among the defendants did not have standing in so far as they had been sued only for negligent conduct. Accordingly, it declared the claim admissible only in respect of the hospitals. 73. On 17 January 2011 the applicant gave evidence. 74. During the three hearings the court heard evidence from the following witnesses: (i) eleven doctors who had been involved in treating the applicant’s husband during his various stays in the CHVNG and Santo António Hospital; (ii) the general practitioner of the applicant’s husband; (iii) two doctors who were friends of the family; (iv) the inspector who had written the final report on completion of the investigation within the IGS; and (v) the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last IGS decision. 75. On 24 May 2011 the court made an order concerning the facts. Taking into account the medical records of the applicant’s husband and the various statements made by the witnesses who had given evidence, the court considered it established, inter alia, (i) that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly; (ii) that the operating theatre had been aseptic and sterilised at the time of the polypectomy; (iii) that the origin of the bacterium linked to the patient’s meningitis had not been proven. The court dismissed the possibility of a hospital-acquired infection, pointing out that in that case the prescribed treatment would have had no effect; (iv) that the medication prescribed in the CHVNG and Santo António Hospital could cause intestinal problems and hence could give rise to colitis; (v) that the applicant’s husband had been treated with drugs to protect his stomach in the CHVNG; (vi) that the gastroduodenal perforation had not been detected until the operation was being performed; and (vii) that the applicant’s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus. 76. On 23 January 2012 the Oporto Administrative and Fiscal Court delivered a judgment in which it dismissed the applicant’s claims. On the facts, the judgment stated, inter alia, as follows: “The Pseudomonas bacterium was resistant to the various antibiotics that were tried ... When the patient attended Vila Nova de Gaia Hospital on 18 December 1997 he had completely recovered from his bacterial meningitis. ... On 25 January 1998 the patient again attended Vila Nova de Gaia Hospital, where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ...; Throughout his stay in Vila Nova de Gaia Hospital he was given treatment to protect his stomach. ... When he was admitted (to Santo António Hospital on 17 February 1998) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease. Medication was prescribed in keeping with that diagnosis. ... While in Santo António Hospital he was kept under observation, received daily medication and underwent various tests. ... On 6 March 1998 ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review; ... It was not until 7 March 1998 that the patient’s acute abdominal syndrome was diagnosed, calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation; ... The perforation had occurred 24 hours before surgery.” 77. The judgment concluded as follows: “ ... in view of the facts that have been established, it is not possible to determine at what point the defendants, by their actions or omissions, breached the rules of good medical practice ... It is considered established that [Mr Fernandes’s] death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer... No doubts persisted regarding the diagnosis of meningitis, the procedure adopted, the sequence of treatment and the resolution of the problem, as all the various aftereffects were duly explained. Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of [Mr Fernandes’s] meningitis and other conditions, although it was explained that colitis is a bacterial imbalance caused by antibiotics (the very ones which have undesirable effects on intestinal flora). Nevertheless, it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply one factor causing the infection. The other factors and circumstances preceding the operation ... thus cease to be relevant. It is nonetheless surprising that the death of the claimant’s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation. However, it has not been demonstrated that the therapy or medication administered to [Mr Fernandes] at any point was unsuited to his clinical condition. There was therefore no breach of the rules of good medical practice (either by action or omission). Accordingly, one of the cumulative conditions for establishing civil liability, namely an unlawful act, is absent.” 78. The applicant appealed against the judgment to the Supreme Administrative Court. She contested the facts deemed to be established, arguing that only by studying the circumstances before, during and after the operation would it be possible to understand what type of bacterium her husband had contracted. She further reiterated that her husband had contracted a hospital-acquired infection and had not received adequate treatment either in the CHVNG or in Santo António Hospital. 79. On 26 February 2013 the Supreme Administrative Court dismissed the applicant’s claims, upholding the judgment of the Oporto Administrative and Fiscal Court. It first of all declined to review the facts considered by the lower court to have been established, on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court’s decision. The Supreme Administrative Court summed up its judgment as follows: “The lower court considered, in sum, that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to [the patient’s] treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment. For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient’s death. The claimant takes a different view of the matter. However, she bases her arguments mainly on allegations that have not been proven, and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium, allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics. Accordingly, these claims can be summed up as allegations of medical negligence which are unsupported by the established facts.” | 1 |
test | 001-179875 | ENG | TUR | COMMITTEE | 2,018 | CASE OF ADIYAMAN v. TURKEY | 4 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | Ledi Bianku;Stéphanie Mourou-Vikström | 4. The applicant was born in 1974 and at the time of lodging his application he was serving his prison sentence in the Bolu F-type prison. 5. On 25 January 2008 the applicant wrote a letter to the Ministry of Justice, in which he had praised the imprisoned leader of the PKK, Abdullah Öcalan by using the honorific “sayın”, meaning esteemed. 6. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicant was found guilty of breaching a prison order by the Bolu F-type Prison Disciplinary Board (referred hereafter as “the board”). 7. On 1 February 2008 the applicant was sentenced to 11 days’ solitary confinement on the orders of the Board, on account of his statements in the above-mentioned letter. 8. On 26 February 2008 the Bolu Enforcement Judge rejected the applicant’s objection. 9. On 11 March 2008 the Bolu Assize Court upheld the judgment of 26 February 2008. | 1 |
test | 001-182852 | ENG | RUS | COMMITTEE | 2,018 | CASE OF DARSIGOVA v. RUSSIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) | Alena Poláčková;Dmitry Dedov | 4. The applicant was born in 1958 and lives in Grozny, Chechen Republic. 5. According to the applicant, on 7 February 1999 the administrative authorities of the Leninskiy District of Grozny provided her with a housing allocation order no. 842 entitling her to occupy a oneroom municipal flat in Grozny. 6. In 2005 the applicant was registered as living in that flat. 7. In 2007 the authorities decided to conduct an examination of all allocation orders granting occupation of municipal accommodation. The applicant’s housing allocation order dated 7 February 1999 appeared suspicious to the authorities and they commissioned an expert to verify its authenticity. The expert concluded that the allocation order was a forged document. In particular, the order did not correspond to the date on which it had been issued and the impress of a seal on the order had been made with the help of an improvised cliché which in its turn had been made with a help of a computer on the basis of an impress of the authentic seal. 8. Upon receipt of this information the administration of Grozny brought court proceedings against the applicant seeking to declare the allocation order of 7 February 1999 null and void and to evict her from the flat in question. 9. The applicant contested those claims. She submitted that the administration had issued her with the housing allocation order because she had been on the housing list and she was subsequently registered as living in that flat. She had not been aware of the fact that the order had not been printed in the printing office. She also asked to dismiss the claims as timebarred because according to domestic law the housing allocation order could be declared null and void within three years after its delivery. 10. The administration of the Leninskiy District of Grozny asked to grant the claims submitted by the administration of Grozny. The administration could not say whether the order had been in fact delivered to the applicant, since the archives had not been preserved. However, according to the civil servants of the administration, commissions on allocation of housing had been meeting once a month. The order no. 842 was issued on 7 February 1999. That would mean that 842 orders were issued from the beginning of 1999 until 7 February 1999. However, the administration of the Leninskiy District could not deliver such a number of housing allocation orders during one month. 11. On 24 February 2009 the Leninskiy District Court of Grozny (“the District Court”) declared the housing allocation order of 7 February 1999 null and void and issued an order to evict the applicant. In particular, the District Court held as follows: “...It follows from the materials of the case that the housing allocation order No. 842 of 7 February 1999 in respect of accommodation situated in Grozny...in the name of Darsigova Ruket Magomedovna has been issued as an assignment of housing. It follows from the expert certificate No. 11 of 11 April 2008 that the above order was sent for an expert examination and the experts concluded that the order no. 842 of 7 February 1999 ... did not correspond to the date on which it had been issued. The impress of a seal of the Leninskiy District of Grozny [on the order] had been made with the help of an improvised cliché which in its turn had been made with a help of a computer on the basis of an impress of the authentic seal. It follows from the expert report of 24 October 2008 no. 1397, 1398/1-2 that the formsheet of order No. 842 of 7 February 1999 had been made with the help of electrophotographic imaging on the copy machine. The colour used - dry toner. Therefore, the court has established that the title document order no. 842 of 7 February 1999 ...had not been made typographically. Those circumstances follow from the content of the statement of claim, parties’ submissions in the court, they have not been contested by the parties and are confirmed by evidence submitted [to the court]. The request by the Administration of Grozny for restauration of the three-year time-limit for lodging of their claim for declaring the order null should be granted. The court has assessed the whole of evidence submitted by the parties and finds that it is possible to grant the claimant’s claim...” 12. In her appeal against the judgment of 24 February 2009 the applicant submitted that in taking the decision to evict her the District Court had not examined whether she had been in need of housing or not. In particular, the District Court had not taken into account that she had been provided with a one-room flat on the grounds that she had cumulated a very long term of service and had no other housing. 13. On 9 June 2009 the Supreme Court of the Republic of Chechnya (“the Supreme Court”) upheld that judgment. In particular, the Supreme Court held as follows: “... It has been established in the court hearing that order No. 842 of 7 February 1999 issued by the administration of the Leninskiy District of Grozny to R.M. Darsigova and giving her the right to move in flat no. 40 at 42, Kadyrov street in Grozny was sent for an expert examination...The expert examination established that the order did not correspond to the date on which it had been issued. The impress of a seal of the Leninskiy District of Grozny [on the order] had been made with the help of an improvised cliché which in its turn had been made with a help of a computer on the basis of an impress of the authentic seal... ... Having regards to the above, the court of first instance had concluded that the claims submitted by the administration of Grozny had to be granted. In such circumstances, the civil chamber does not find any grounds for quashing the court decision ...” 14. After her eviction the applicant returned living to her mother’s flat and on 26 July 2011 she was registered as living in that flat. | 1 |
test | 001-177411 | ENG | RUS | COMMITTEE | 2,017 | CASE OF DUKHANIN AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. | 1 |
test | 001-158033 | ENG | HUN | CHAMBER | 2,015 | CASE OF BALÁZS v. HUNGARY | 3 | Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 6. The applicant was born in 1991 and lives in Szeged. 7. On 21 January 2011 around 4 a.m. the applicant and his girlfriend Ms D.L. were about to leave a club in Szeged, when three men in their twenties, unknown to them, started to insult them. The three men made degrading comments about the applicant’s Roma origin and about the physical appearance of his girlfriend. 8. Subsequently a fourth person, Mr E.D., appeared, presenting himself as a police officer. (In fact, he was a penitentiary officer.) When Mr E.D. was about to leave, the applicant questioned him about his attitude using offensive and vulgar language, upon which Mr E.D. turned back and got into a fight with the applicant, which ended due to the intervention of three persons, the applicant’s acquaintances. Following the fight, Mr E.D. called the police. Two officers arrived. The applicant, Mr E.D. and Ms D.L. were then escorted to the local police station. They were released the day after. Although both the applicant and Mr E.D. had visible injuries, only Mr E.D. underwent a medical examination. According to the medical findings, he had bruises on his temple and a haematoma around his right eye. 9. On 23 January 2011 the applicant was examined by a general practitioner, who found that he had bruises on his chest, back, neck and face. 10. On 1 February 2011 the applicant lodged a criminal complaint with the Szeged Public Prosecutor’s Office against Mr E.D. He submitted that the three who had insulted him had shouted at him “Dirty gypsy, do you need a cigarette? Here is money!” and thrown cigarettes and money at him. He also maintained that Mr E.D., who presented himself as a police officer upon his arrival at the scene, had asked the others whether “[they] could not handle a dirty little gypsy” and, turning to him, had called him a gypsy. He also gave a description of the injuries he had suffered. Furthermore, the applicant explained that the day after the incident he had identified Mr E.D. on a social network. He had extracted some of his posts and submitted them to the Prosecutor’s Office. 11. In these posts, Mr E.D. commented that the night before he “had been kicking in the head a gypsy lying on the ground when [he] was overcome by three of his buddies”. In reply to favourable posts by other users, Mr E.D. posted an Internet link to a video clip containing a widely known excerpt from a feature film with overtly intolerant and explicitly racist language. He added that the list of the types of people loathed by the character speaking in the clip could be completed with “some other types of rubbish living among us”. 12. On 7 February 2011 the Public Prosecutor’s Office opened a criminal investigation against Mr E.D. for the offence of “violence against a member of a group” within the meaning of section 170 (1) of the Criminal Code. 13. On 17 March 2011 the two police officers who had arrived at the scene were questioned, as well as Ms D.L. The latter corroborated the applicant’s version of the events. The testimony of the police officers’ did not contain any account of the incident; they had arrived at the scene only after the fight. The applicant’s three acquaintances, whose intervention had ended the fight, were not questioned, their identity remaining unknown to the prosecution. The applicant was questioned about their contact details, however the only information he could provide were their nicknames. 14. In parallel, the Szeged Public Prosecutor’s office initiated an ex officio investigation into the same facts on charges of disorderly conduct (garázdaság). On 5 July 2011 Mr E.D. was questioned as a suspect, where he stated that the applicant had provoked him. He admitted to having pushed the applicant away in self-defence, but claimed that he had neither hit nor insulted him. He maintained that he had made no statement concerning the applicant’s Roma origin and that the fight had not taken place because the applicant’s Roma origin but because he had been attacked by the latter. As regards his comments on a social network, Mr E.D. stated that he had posted them for no particular reason and specified that “in fact [he] had not been kicking the boy’s head ... had [he] done so the [applicant] would have suffered more serious injuries”. 15. In a decision of 20 July 2011 the Public Prosecutor’s Office discontinued the investigation into the offence of “violence against a member of a group”, considering that there was no evidence substantiating that Mr E.D. had attacked the applicant out of racial hatred. Relying on the applicant’s complaint, Ms D.L.’s testimony, Mr E.D.’s statement given as a suspect in the parallel proceedings and the medical evidence, the Public Prosecutor’s Office concluded that it could not be established who had provoked the fight and whether there was a causal link between the insults directed against the applicant and the fight. The applicant filed a complaint against the discontinuation on 26 July 2011. 16. On 8 August 2011 the applicant’s lawyer was given the opportunity to study the case-file. On the same day she requested Mr E.D. to be heard as a suspect, or at least as a witness; she also requested a confrontation (szembesítés) between the applicant and Mr E.D. This request was dismissed on the ground that Mr E.D. had already been heard as a suspect in the parallel proceedings on charges of disorderly conduct, and the records of his testimony were attached to the investigation file and used as documentary evidence. On 16 August 2011 the applicant also challenged this decision and requested that further investigative measures to be taken. 17. On 8 September 2011 the Csongrád County Regional Public Prosecutor’s Office upheld the first-instance decision, considering that: “Accepting the background of the incident, as recounted by the victim and Ms D.L., although it is likely that the action had racist motives, it cannot be proven sufficiently for establishing criminal responsibility – that is, unequivocally and beyond any doubt – that Mr E.D. ill-treated the applicant precisely because of his Roma origin. The racist motive cannot be established, in particular, since before the incident Mr E.D. had intended to leave the scene and only turned back because of the victim’s reproach, and the only information about the start of the fight originates in the contradictory statements of the victim and Mr E.D. Neither the victim nor Ms D.L. could provide further details as to the question whether after having turned back, Mr E.D. made any further racist comments before or during the fight. The Facebook post attached to the criminal complaint only reveals that Mr E.D. had insulted an unnamed and unidentifiable person of Roma origin the night before. It cannot be established unequivocally and beyond doubt, either from the post or from the subsequent messages, that [the insult] took place precisely because of the victim’s Roma origin. Based on the above reasons and considering all available information and evidence in their entirety, Mr E.D.’s racist motive is probable at the maximum, but cannot be established beyond doubt.” As regards further investigative measures, the Prosecutor’s Office stated that given the fundamental contradictions between the statements of Mr E.D., the applicant and Ms D.L., a confrontation between them had no prospects of success. Furthermore, Mr E.D. had given a detailed account of the facts in his testimony given as a suspect in the parallel proceedings, which rendered futile his further questioning. 18. On 11 May 2012 Mr E.D. was convicted of disorderly conduct by the Szeged District Court for having got into a fight with the applicant and was placed on one-year probation. | 1 |
test | 001-154344 | ENG | PRT | COMMITTEE | 2,015 | CASE OF ALVES v. PORTUGAL | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1953, in Slovenia, and lives in Braga, Portugal. 6. On 22 November 2006 the applicant brought a liability action (ação de responsabilidade civil) in the Braga Court against F., a lawyer who had acted as her legal representative in previous proceedings, claiming damages for professional negligence. 7. On 12 December 2006 F. was notified of the action. On 25 January 2007 he lodged his submissions in reply (contestação) and requested the intervention of his insurance company to which he had transferred his responsibility for the acts committed by him in his capacity as lawyer. 8. On 8 March 2007 the applicant lodged new submissions in reply (réplica). 9. By a Braga Court’s decision of 11 July 2007 the intervention of the insurance company in the proceedings was accepted. The company was summoned on an unknown date. On 14 September 2007 it lodged its submissions, to which the applicant replied on 11 October 2007. 10. Between January and April 2008 the parties disputed the applicant’s legal capacity to be a party to the proceedings (capacidade judiciária). 11. On 28 April 2008 the judge gave directions (despacho saneador) absolving F. of the proceedings (absolvição do réu da instância) on the grounds of the applicant’s lack of legal capacity. 12. On an unknown date the applicant appealed against that decision to the Guimarães Court of Appeal (Tribunal da Relação). By a decision of 4 December 2008 the Court of Appeal considered that the applicant had legal capacity and ordered the re-analysis of the case at first instance. In February 2009, the proceedings were allocated to the Braga Court. 13. On 29 April 2009 the judge gave directions setting out the matters that had already been established and those that remained outstanding. 14. Between 28 May and 6 November 2009 the parties lodged, in total, three requests to which the judge promptly replied in less than one month. 15. On an unknown date the case was set down for hearing on 10 March 2010. The hearing was later adjourned to 15 June 2010. A second hearing took place on 7 October 2010. 16. On 29 October 2010 the Braga Court partially found in favour of the applicant. 17. The parties appealed against the decision to the Guimarães Court of Appeal, which dismissed the appeals on 20 October 2011. 18. The parties challenged the Court of Appeal’s decision before the Supreme Court. 19. On 29 May 2012 the Supreme Court dismissed the appeals. | 1 |
test | 001-168074 | ENG | UKR | COMMITTEE | 2,016 | CASE OF KIN AND OTHERS v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) | Carlo Ranzoni;Khanlar Hajiyev | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. In application no. 42373/06 the applicant also raised other complaints under the provisions of the Convention. | 1 |
test | 001-170456 | ENG | SVN | CHAMBER | 2,017 | CASE OF KOPRIVNIKAR v. SLOVENIA | 3 | Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1979 and is detained in Dob pri Mirni. 6. On 23 April 1999 the 1999 Amendment to the 1994 Criminal Code entered into force (see paragraph 21 below). 7. On 17 September 2004 the applicant was convicted of robbery by the Ljubljana District Court and sentenced to four years in prison. He began serving his sentence on 7 December 2007 and completed it on 7 December 2011. 8. On 1 November 2008 the 2008 Criminal Code came into force (see paragraph 22 below). 9. On 16 June 2009 the applicant was convicted by the Ljubljana District Court of having paid with a bad cheque and of fraudulent use of a bank card in the period between 19 January and 19 August 2005. He was sentenced to five months’ imprisonment. The judgment became final on 7 October 2009. The applicant started to serve the sentence on 7 December 2011. 10. In the meantime, on 9 April 2009 the Ljubljana District Court found the applicant guilty of murder committed together with another person on 15 September 2002. He was sentenced to thirty years in prison, the maximum penalty provided for under the 1994 Criminal Code applicable at the time at which the offence was committed. The conviction was upheld on appeal by the Ljubljana Higher Court on 9 December 2009 and became final on the same day. 11. On 28 November 2011 the applicant applied to the Ljubljana District Court to have the three prison terms joined in an overall sentence. 12. On 13 January 2012 the Ljubljana District Court, by means of a judgment, joined the three above-mentioned prison sentences, including the one for robbery which the applicant had already completed, in an overall sentence. Applying the 2008 Criminal Code as applicable before the introduction of the 2011 Amendment (see paragraphs 22 and 23 below), the court noted that the applicant should have had an overall sentence imposed on him as the conditions under Article 53 of the 2008 Criminal Code (see paragraph 22 below) had been met but the provision had not been applied in his case. While acknowledging that Article 53 § 2 (2) of the 2008 Criminal Code applied to the case (see paragraph 22 below), the District Court sentenced the applicant to an overall term of thirty years’ imprisonment. In its reasoning, it noted that the principle of the rule of law required, inter alia, that criminal-law provisions be drafted in a clear and precise manner in order to avoid sentences being imposed arbitrarily. It went on to note that the legislation applicable to the present case was unclear, ambiguous and deficient for the following reasons. Although the maximum sentence applicable under the 2008 Criminal Code had been thirty years’ imprisonment and the rules on combining multiple sentences in an overall sentence, enshrined in Article 53 § 2 (2) of the 2008 Criminal Code, provided that the overall sentence must exceed each of the individual sentences, these same rules prescribed a maximum sentence of twenty years. The court took the view that the legislature had not intended to enact legislation enabling those offenders who had been sentenced to thirty years’ imprisonment for one of the offences for which they subsequently had had their sentences joined to benefit from an overall sentence that would have been ten years lower than the highest individual sentence to which the offender had been sentenced. In support of its view, the District Court pointed out that the 1994 Criminal Code (see paragraph 21 below) had provided that in cases where an offender had been due to serve thirty years’ imprisonment along with sentences for other offences, the overall sentence would have consisted only of that term. Therefore, the District Court considered that the legislature had made an obvious error in Article 53 § 2 (2) of the 2008 Criminal Code, which had, however, been rectified in the meantime by the 2011 Amendment. The court found that the latter made the rules on the determination of an overall sentence certain, clear and complete and that “[o]nly the so amended provisions therefore prevent[ed] arbitrary sanctioning of criminal offenders for multiple criminal offences as required by the principle of legality”. 13. The applicant appealed against the judgment, arguing that the District Court’s decision lacked a legal basis and was in breach of the principle of the rule of law and the principle nullum crimen et nulla poena sine lege. He also claimed that the primary method of interpreting legal texts should be semantic interpretation. It was only where that method proved unsatisfactory in determining how a certain rule should be applied that other methods of interpretation should be applied. Lastly, the applicant agreed with the District Court that the provision in question could be regarded as unclear, ambiguous and deficient, but pointed out that any possible ambiguities or deficiencies should not be interpreted to his detriment. 14. On 29 May 2012 the Ljubljana Higher Court rejected the appeal lodged by the applicant and upheld the first-instance judgment, reiterating the lower court’s reasoning. In the Higher Court’s opinion, the District Court had correctly assessed that the legislature had not intended to permit individuals convicted of several offences from benefiting from a lower maximum term of imprisonment than they would have had to serve if they had been convicted of only one of those offences. According to the Higher Court, such an interpretation would lead to a situation “defying the law as well as common sense”. 15. The applicant applied to the Supreme Court for the protection of legality (an extraordinary legal remedy), reiterating his arguments. He also argued that the rule of law was a principle which should not be applied at the courts’ discretion. 16. On 6 December 2012 the Supreme Court by its judgment I Ips 58203/2011 rejected the application for the protection of legality, disagreeing with the applicant that semantic interpretation should take precedence over all other methods of legal interpretation. The Supreme Court referred to the Higher Court’s judgment, pointing out that the latter court’s reasoning evidently showed that the historical interpretation of the rule on combining multiple sentences also had to be taken into account in assessing the aim of the legislature in enacting the provision at issue. That method of interpretation entailed the examination of not only the provision in its original form, as relied on by the applicant, but also the subsequent amendment, which showed the true aim of the provision. In addition, the Supreme Court relied on the systematic interpretation of the rule in question, emphasising that it could not be interpreted entirely separately from the provisions prescribing that individual prison sentences for various criminal offences must be combined to form an overall sentence. Since under the un-amended 2008 Criminal Code a prison sentence could be imposed for a term not shorter than fifteen days and not longer than thirty years, it was not logical that an overall sentence combining several prison terms, one of which was for thirty years, could be ten years lower than the highest individual prison sentence imposed. According to the Supreme Court, the rules on multiple offences were aimed not at reducing the general maximum prison sentence, but at ensuring that the overall length of several sentences did not exceed the general maximum prison sentence, which in the applicant’s case was thirty years. 17. The applicant lodged a constitutional complaint, reiterating that the imposition of an overall sentence of thirty years’ imprisonment contravened Article 53 § 2 (2) of the Criminal Code, which clearly provided that such a sentence could not exceed twenty years. In the applicant’s opinion, the purpose of the provision at issue could be drawn from interpreting it semantically and no additional means of interpretation were therefore required in order to understand the legislature’s intention. 18. On 24 April 2013 the Constitutional Court dismissed the applicant’s complaint, finding that it did not concern an important constitutional question or entail a violation of human rights with serious consequences for the applicant. 19. On 24 March 2015 the applicant was convicted of another murder committed on an undefined date between 30 June and 15 September 2002. For that murder he was sentenced to thirty years’ imprisonment, but a new overall sentence of thirty years was imposed. The latter overall sentence covered the previous overall sentence imposed by the judgment of 13 January 2012 (see paragraph 13 above), another sentence of four months imprisonment, which in the meantime had been imposed on him following a conviction for yet another criminal offence, and the thirty years’ imprisonment imposed by that last judgment of 24 March 2015. An appeal and an application for the protection of legality by the applicant were dismissed, the latter by the Supreme Court on 2 June 2016. | 1 |
test | 001-161982 | ENG | ROU | CHAMBER | 2,016 | CASE OF M.C. AND A.C. v. ROMANIA | 3 | Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation;Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 6. The applicants were born in 1978 and 1986 respectively and live in Bucharest and Curtea de Argeş respectively. 7. On 3 June 2006 the applicants participated in the annual gay march in Bucharest. It was organised by ACCEPT, a non-governmental organisation whose goal is to provide information and to assist the LGBTI community. The march was given police protection. Several individuals who had actively expressed their disapproval over the gay march were stopped by the police, their pictures taken and their identity papers checked and noted. 8. At around 7 pm, at the end of the march, the applicants and four other participants left the area using the routes and means of transport recommended by the authorities in the guidelines prepared by the organisers for march participants. As recommended in the same leaflet, they wore no distinctive clothing or badges that would identify them as having participated in the march. 9. After boarding a metro train, they were attacked by a group of six young men and a woman wearing hooded sweatshirts. The attackers approached the victims directly and started punching them and kicking their heads and faces. They also swung from the metal bars above their heads, kicking their victims. During the attack they kept on shouting: “You poofs go to the Netherlands!” (Poponarilor, duceţi-vă în Olanda!) 10. The victims were pushed into a corner of the carriage. One of them tried to protect the others with his body, but the second applicant remained exposed and suffered several blows. 11. The attack lasted for about two minutes. On their way out of the carriage, the attackers punched the first applicant again in the face. 12. The other passengers withdrew to the opposite side of the carriage during the attack. Among them was a photographer, Z.E., who had also been at the march. The victims asked him to take pictures of the incident, which he did. As a consequence, the attackers hit him as well. 13. The same evening, accompanied by a representative of ACCEPT, the victims went to the Mina Minovici National Forensic Institute and to Bagdasar Emergency Hospital for medical consultations. 14. The forensic medical certificate stated that the first applicant had bruises which could have been produced by blows from a hard object; they did not require “days of medical care”. 15. The second applicant was diagnosed with multiple contusions (related to the incidents), minor cranio-cerebral trauma, contusion on the left shoulder and the left side of his face, and bruises. No bone damage was found. The forensic medical certificate concluded that the applicant needed one to two days of medical care. 16. Later that night of 3 to 4 June 2006 the victims, including the applicants, and a representative of ACCEPT went to Bucharest Police Station no. 25. They filed a criminal complaint against the attackers and stated that the assault was based on the victims’ sexual orientation. They reiterated not having worn any visible signs that could have given away the fact that they were returning from the gay march. They argued that the attackers had identified them at the march (as they had not worn masks) and followed them afterwards, with the intention of harming them. They informed the police about the offensive remarks made during the attack. 17. According to the applicants, the police agents were surprised when they realised that the applicants and the other victims, although gay, were affluent individuals with regular jobs and positions of responsibility. They tried to dissuade them from pursuing their complaint, warning them that they would have to confront their aggressors in court. 18. On 5 June 2006 the applicants’ representative submitted to the police several pictures of the attack taken by Z.E. In some of the pictures the attackers’ faces were visible, as their hoods were down. The photographer gave statements and was able to identify one of the perpetrators. 19. The first applicant was also shown pictures taken by the police during the march. She was able to identify two of the individuals from their photos. The police had the suspects’ names and addresses on record. 20. The victims gave statements to the police. 21. On 8 June 2006 the police received copies of fifteen police reports drawn up on the day of the march concerning administrative fines imposed on counter-demonstrators. 22. Due to a reorganisation within the police force, the case file was moved from one police station to another, and on 4 April 2007 it was registered at the Metro Police Station. 23. As it appeared that nothing was happening in the case, the applicants sought information on the progress of the investigation by means of letters sent by ACCEPT on 25 September 2006, 28 March 2007 and 20 July 2011. On 19 March 2007 they also complained to the Ministry of Internal Affairs about the lack of an effective investigation in the case, but to no avail. 24. On 27 April 2007 they were informed that, following the reorganisation within the police force, their file had finally been logged by the Metro Police Station. The letter also informed the applicants that the investigation was ongoing and steps were being taken to identify the culprits. 25. On the same day, the police submitted a request to the Romanian Intelligence Service (the “SRI”) to confirm whether R.S.A. – an intelligence officer who had been identified among the attackers – had been on an official mission that night. On 24 May 2007 the Intelligence Service asked for clarification concerning the nature of the request. It was not until September 2007 that the police were able to obtain a statement from R.S.A., who declared that he had been off duty that day and offered information on one other person in the group of attackers. The actions undertaken by the police to identify the other individuals remained without success. 26. The Metro Police received, on 12 June 2007, a list of forty five names and identification numbers of persons who had been fined by the police during the gay march. 27. As one of the suspects was believed to be a Steaua football club supporter, the investigators attended twenty-nine football matches between 16 September 2007 and 13 December 2009 in an attempt to identify him. On 12 February, 14 May, 4 August and 7 December 2010 and 10 March 2011 the investigators tried to identify the suspects at metro stations. On eight occasions between 12 June 2007 and 6 July 2011, the investigators successfully asked the prosecutor to extend the deadline for completing the investigation. 28. On 10 June 2011 the police stated their view that the investigation should come to an end and asked the prosecutor’s office not to institute criminal proceedings in the case. The police gave the following explanation for their request: “... the investigation was rendered difficult by the fact that the file arrived at the Metro Police Station ... almost one year after the incidents, and the police agents ... who had been in charge of the case until September 2006 could not continue the investigation as the Intelligence Service had refused to cooperate and allow their agent ‒ who was the only identified eye-witness to the events ‒ to be interviewed; it is to be noted that the police lost their motivation to use the information for the purposes of finding the truth in this case, of identifying and bringing to justice those responsible. In addition, to a certain extent the victims lost their interest in how their complaint was being dealt with (they did not ... adduce the medical certificates ... which had been obtained at the request of the police ... on 27 October 2009 when it was noted that none of the victims had needed more than two days of medical care). It is observed that all the evidence-gathering methods for this type of crime have been exhausted and, given the lapse of time from the date when the complaints were lodged, the validity and relevance of the evidence gathered ... [have decreased], leaving the investigation into the identity of the culprits without an outcome. At the same time, it is observed that ... the criminal acts had become time-barred, removing criminal responsibility from the culprits. 29. On 9 August 2011, in response to a request from the applicants for information, the Metro Police informed them that their intention was to not institute a criminal prosecution (neînceperea urmăririi penale) as the alleged crimes had become statute-barred (s-a împlinit prescripţia specială). The police explained that the investigation had been rendered more difficult by the fact that the file had not arrived at the Metro Police office until a year after the events. Moreover, all the actions undertaken by police in order to identify the alleged culprits had failed. 30. On 4 October 2011 the prosecutor’s office attached to the Bucharest District Court of the Fourth Precinct endorsed the police proposal and decided to terminate the investigation. The decision was sent to the first applicant’s home on 27 February 2012. 31. On 19 March 2012 the applicants lodged a complaint with the ProsecutorinChief against the decision of 4 October 2011. They argued that the prosecutor should have investigated the more serious crime of organising a criminal group (asocierea pentru savârşirea de infracţiuni), which had not yet become time-barred. They also complained that the investigators had failed to pursue their allegation that the attack had been motivated by their sexual orientation. The prosecutor-in-chief dismissed their objections on 18 June 2012. 32. The applicants reiterated their objections against both the decisions delivered by the prosecutors in two separate complaints lodged with the Bucharest District Court. 33. On 9 August 2012 the District Court dismissed the complaint lodged by the applicants against the prosecutor’s decision of 4 October 2011. The court made the following observation: “It is true that the authorities were apparently not sufficiently diligent in carrying out within a reasonable time an effective investigation capable of identifying and punishing those responsible for the criminal acts (the long periods of police inactivity, the transfer of files, the lack of cooperation from some authorities are all duly noted). On the other hand, this situation – although not imputable to the [applicants] – cannot prevent the application of the statute of limitation of criminal responsibility.” 34. On 12 November 2012 the District Court dismissed the complaint lodged against the prosecutor’s decision of 18 June 2012 as a mere reiteration of that already dealt with by the court in its decision of 9 August 2012. 35. Throughout the proceedings the applicants repeatedly sought access to the prosecution file. It was partially granted on 9 May 2012 and the applicants gained full access to the file once their objections had been lodged with the courts. | 1 |
test | 001-148238 | ENG | FIN | ADMISSIBILITY | 2,014 | T.H.-A. AND OTHERS v. FINLAND | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The first applicant, Mr T.H.-A., is a Russian national who was born in 1968. The second and third applicants are his wife and child who are also Russian nationals and born in 1984 and 2012 respectively. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). The applicants were represented before the Court by Ms Kirsi Hytinantti, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants are a couple and their child born in Finland on 1 July 2012. They are Russian citizens originating from the Ingushetia region and are Muslims by religion. The first applicant had lived previously in Chechnya but fled from the war in the mid-1990s back to Ingushetia. The second applicant, his wife, was born in North-Ossetia from where their family fled in 1992 to Chechnya and from there to Ingushetia in 1995. Both applicants claim that they have not been politically or religiously active and do not belong to any group. 5. The first applicant’s problems with the authorities started late in 2007. He was arrested, on the basis of witness testimony, by the local police in December 2007, suspected of the murder of a police officer. After a few days in detention, the court ordered his release as the witness had retracted his statement. He was not, however, released immediately but only after approximately 10 days when his brother paid money to the police. The first applicant claimed that he had lost track of time while in detention as he was deprived of sleep. The interrogations went on continuously and if he fell asleep he was immediately awakened. A bag was put over his head to humiliate him and he was verbally humiliated as well. The first applicant claimed that he was not, however, otherwise physically ill-treated. He assumed that as he was relatively wealthy and well-known in his community, the police did not dare to beat him as it would have become known in the community. 6. The first applicant heard from the prosecutor that the witness testimony against him had been fabricated and ordered by the FSB (the Federal Security Service of the Russian Federation) but the applicant did not know why. His legal counsel advised him to leave as, once targeted by the FSB, he would never be left alone. The first applicant did not want to leave as he did not consider himself guilty of any crime. 7. After his release, security troops of some sort (silovikis) searched his house. The first applicant escaped when he saw the military vehicles approaching his house. He went to live in his aunt’s house some 10 minutes’ drive from his house, where the applicants stayed for almost one year (in 2008) until they fled to Finland. The house belonging to him and his brother was searched at least three times and the applicants’ passports were taken. The first applicant was never home when the searches were made but on one occasion the second applicant was present. She and the other family members, who were at home at the time, were ordered to lie down on their stomachs on the ground for hours while the men in military uniform, who did not specify who they were, waited for the first applicant to arrive. The men shot the applicants’ kitten and stated that the applicants would soon be treated similarly. A gun was held to their heads and they were verbally intimidated. Finally the men tired of waiting and left. 8. The FSB left the first applicant at least one written summons to present himself for questioning about his participation in group meetings and demonstrations. The first applicant stated that he had not participated in those meetings mentioned in the summons but that he only had participated in such meetings 2 to 3 years before. His brother went to the FSB with a lawyer in 2008 to tell them that the first applicant had left and would not be returning. The applicants maintained that they did not know why the FSB was after the first applicant. He assumed that he was on their blacklist for some reason but other people were also wanted by the FSB without any real reason. 9. The second applicant stated that her brother had also been taken by unspecified authorities in September 2007 without notice and held for four days but then released. She did not know the reason. Her cousin’s son had been reported missing since 2008. Her sister’s husband had apparently also been killed after the applicants arrived in Finland. 10. Both applicants also spoke in their asylum interview more generally about the human rights problems in Ingushetia, such as house searches by masked men in military uniforms who always came in the morning, and unresolved abductions and killings. Some of the victims of these incidents were distant relatives or friends of the applicants. 11. After the applicants’ arrival in Finland, the second applicant had suffered from several psychosomatic symptoms which were diagnosed as post-traumatic stress disorder. She has been treated with antidepressants which apparently have not improved her health. She submitted medical certificates to the domestic courts. 12. On 2 February 2009 the applicants sought asylum in Finland. 13. On 12 July 2011 the Finnish Immigration Service (Maahanmuutto-virasto, Migrationsverket) rejected their applications and decided to order their expulsion back to the Russian Federation. The Service did not consider it credible that the FSB could have been looking for the first applicant and failed to find him when he was still in Ingushetia and residing at his aunt’s house only 10 minutes’ drive from his own home. It also found it odd that the first applicant could not state any reason why he might be wanted by the FSB. Furthermore, the Service noted that the Ingushetian authorities had acted properly when releasing him from detention when there was no evidence against him and that they had not ill-treated him. According to the Service, the first applicant was treated in a correct manner by the local Russian authorities. They also noted discrepancies, mostly in timing, in the applicants’ stories concerning the searches of their home and the disappearance of their passports. Also, the applicants managed to leave the country without problems and their families had not been harassed after their departure. As the applicants had also themselves confirmed that they had not been politically or religiously active in their home country, the Service did not find it likely that they would be of any interest to the Russian authorities. 14. On an unspecified date the applicants appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), also requesting an oral hearing to be held. 15. On 20 December 2012 the Administrative Court rejected both the appeal and the request for an oral hearing, considering the latter unnecessary as it found the applicants’ story in principle credible and thus no additional information could be obtained by organising an oral hearing. However, it considered that nothing in the applicants’ or in their family’s background, gave reasons to suspect that they would be of special interest to the FSB. It also noted that, according to the country reports, it was possible that the first applicant might be targeted only because of the previous suspicion of criminal activity. However, it did not consider that to be enough to amount to a real risk of his ill-treatment upon expulsion. Furthermore, the Administrative Court noted that the first applicant had obtained a driving licence through his brother during his absence from Russia, thus it was unlikely that the authorities would persecute him. The court noted that the general security and human rights situation in Ingushetia was relatively poor but that it was not sufficient in itself to amount to a real risk of ill-treatment of the applicants. It also noted that mental health care was available in Ingushetia for the second applicant. 16. By letter dated 12 January 2013 the applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting also an interim order to stay their expulsion for the duration of the proceedings. 17. On 20 March 2013 the applicants’ legal counsel was informed that no interim order was granted by the Supreme Administrative Court. 18. On 13 January 2014 the Supreme Administrative Court refused the applicants leave to appeal. 19. According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity. 20. According to section 87, subsection 1, of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004), aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country. 21. Section 88, subsection 1, of the Act (as amended by Act no. 323/2009) provides that an alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; or 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts. 22. Under section 88a of the Act (as amended by Act no. 323/2009), an alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation. 23. According to section 88b of the Act (as amended by Act no. 323/2009), the well-founded fear of being persecuted referred to in section 87b or the real risk of being subjected to serious harm referred to in section 88 may be based on incidents after the applicant’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure. 24. Section 98, subsection 2, of the Act (as amended by Act no. 432/2009) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant’s statements on his or her circumstances in the State in question and of real time information on the circumstances in that State obtained from various sources. After obtaining the statement, the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible, and if the authorities are convinced of the veracity of the application with regard to the applicant’s need for international protection. 25. According to section 147 of the Act, no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area. 26. Section 147b of the Aliens Act (as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member States, of third-country nationals who are subjects of individual removal orders. The annex of the Decision contains common guidelines on security provisions for joint removals by air including, inter alia, an obligation for the member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air. 27. The World Health Organisation’s (WHO) Mental Health Atlas from 2005 provides the following information on the mental health care situation in the Russian Federation: “Mental health is a part of primary health care system. Actual treatment of severe mental disorders is not available at the primary level. The practice of recognition and treatment of depression in primary care is developing in several regions. ... There are community care facilities for patients with mental disorders. A social rehabilitation system including workshops, rehabilitation units in industrial firms and residential homes (for about 125 000 persons) exists. Day care facilities are available for almost 15 000 persons. Home care is also provided in some cases. ... The system of Russian Ministry of Health consists of 278 mental hospitals, 164 psycho-neurological outpatient clinics (dispensaries) that include day-hospitals as separate wards in their structure (each dispensary provides sectorised coverage to a population of approximately 25 000 people); 2010 psychoneurological consulting rooms in rural areas; 1117 psychotherapeutic rooms, mostly in primary care facilities. There are also beds in 442 hostels, nursing homes and ‘internats’ under the authority of the Ministry of Social Protection. ... The country has specific programmes for mental health for refugees, disaster affected population and elderly. Programmes on refugees and disaster victims are carried out by the Ministry of Emergency Situations (EMERCOM). Elderly population are looked after by the Ministry of Social Protection. ... The following therapeutic drugs are generally available at the primary health care level of the country: carbamazepine, ethosuximide, phenobarbital, phenytoin sodium, sodium valproate, amitriptyline, chlorpromazine, diazepam, fluphenazine, haloperidol, lithium, biperiden, carbidopa, levodopa. The Ministry of Health and Social Assistance approved the list of mentally ill who would receive free medication in 1993, the funds for which were to be allocated by local institutions.” | 0 |
test | 001-144124 | ENG | AZE | CHAMBER | 2,014 | CASE OF ILGAR MAMMADOV v. AZERBAIJAN | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Violation of Article 18+5 - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5-1-c - Bringing before competent legal authority;Article 5 - Right to liberty and security);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1970 and lives in Baku. 6. The applicant has been involved in various political organisations and local and international non-governmental organisations for a number of years. In 2008 he co-founded the Republican Alternative Civic Movement (“REAL”) and in 2012 was elected its chairman. He is also Director of the Baku School of Political Studies, which is part of a network of schools of political studies affiliated with the Council of Europe. He has held that position for several years. 7. The applicant maintained a personal internet blog on which he commented on various political issues. In particular, in November 2012, after the enactment of a new law by the National Assembly introducing heavy sanctions for unauthorised public gatherings, the applicant posted a comment on his blog which he claimed was meant to insult members of the National Assembly. Without naming any names, he went on to state, inter alia, that the National Assembly was composed of “fraudulent people” and compared the entire legislative body to a zoo. Those statements were quoted in the media and elicited a number of seemingly irate responses from various National Assembly members. The responses, also published in the media, ranged in content from retaliatory ad hominem insults to calls for punishment and threats of suing him in court. According to the applicant, the parliamentarians’ “lawsuit plans were ... temporarily dropped” after the calls for reprisals against the applicant were condemned by one of the VicePresidents of the European Commission, who was visiting the country at the time. 8. At the beginning of January 2013 REAL announced that it would consider nominating its own candidate for the upcoming presidential election of November 2013. The applicant himself announced that he was considering standing as a candidate in the election. According to the applicant, his prospective presidential candidacy was widely discussed in Azerbaijan at that time. 9. On 23 January 2013 rioting broke out in the town of Ismayilli, located to the northwest of Baku. According to media reports quoting local residents, the rioting was sparked by an incident involving V.A., the son of the Minister of Labour and Social Protection and nephew of the Head of the Ismayilli District Executive Authority (“IDEA”). It was claimed that after being involved in a car accident, V.A. had insulted and physically assaulted passengers of the other car, who were local residents. On hearing of the incident, hundreds (perhaps thousands) of local residents took to the streets and destroyed a number of commercial establishments (including the Chirag Hotel) and other property in Ismayilli thought to be owned by V.A.’s family. 10. On 24 January 2013 the Ministry of Internal Affairs and the Prosecutor General’s Office issued a joint press statement, placing the blame for the rioting on E.S., a hotel manager, and his relative E.M., who had allegedly been drunk and who, it was claimed, had committed acts of hooliganism by damaging local residents’ property and inciting people to riot. 11. Meanwhile, the Head of IDEA, V.A.’s uncle, publicly denied that the Chirag Hotel belonged to his family. 12. On 24 January 2013 the applicant travelled to Ismayilli to get a firsthand account of the events. On 25 January 2013 he described his impressions from the trip on his blog. The entire post read as follows: “Yesterday afternoon I spent a little longer than two hours in Ismayilli, together with [another member] of our Movement [REAL] and our media coordinator... First, here is [the summary of] what I wrote on Facebook during those hours using my phone: - We have entered the town. - There is a lot of police and their number is growing. The protesters gather each hour or two and make speeches. We are in front of the building of the [Ismayilli District] Executive Authority. There are around 500 police officers in this area. - The cause of the events is the general tension arising from corruption and insolence [of public officials]. In short, people have had enough. We are having conversations with local residents. - The [ethnic] Russians of the village of Ivanovka are also fed up; they tried to come to [Ismayilli] to support the protest, but the road was blocked and they were sent back. - Everybody is preparing for the night. - We are leaving Ismayilli, returning to Baku. The matter is clear to us. Quba was the first call. Ismayilli is the second. After the third call, the show will begin. We came back after having fully investigated the situation in Ismayilli. I wrote that clashes would again take place in the evening, by posting ‘everybody is preparing for the night’ [on Facebook]. People there had been saying ‘We’ll give them hell in the evening; we have procured supplies’ (meaning the fuel for Molotov cocktails had been bought). People are angry. There are also those who do not care and who are afraid, but those who are not afraid are very exasperated and will continue the protest at night. This is no longer a political situation where we could stay there and try to change something; this is already a situation of disorderly crisis which requires conciliatory steps by the State to be resolved. No one should fool oneself or others. The events in Ismayilli were not and are not a calm peaceful protest, it is an extremely violent but just protest and the responsibility for it lies with Ilham Aliyev. As it is with all revolutionary processes, in the beginning the political initiative is still in the hands of the President, but by not taking action he is gradually losing this initiative. When [such leaders] begin to react to the situation, it is usually too late and their actions have no effect. Mubarak, the Shah of Iran, and all others have gone this way.” 13. On 28 January 2013 the applicant posted more information on his blog concerning the events, citing the official websites of the Ministry of Culture and Tourism and the Ministry of Taxes and publishing screenshots of those sites. In particular, he noted that, according to those sources and to information posted on V.A.’s Facebook account, the Chirag Hotel was actually owned by V.A. This directly contradicted the earlier denial by the Head of IDEA. The information cited by the applicant was removed from the aforementioned Government websites and V.A.’s Facebook page within one hour of the applicant publishing his blog entry. However, the blog entry itself was extensively quoted in the media. 14. On 29 January 2013 the Prosecutor General’s Office and the Ministry of Internal Affairs issued a new joint press statement concerning the events in Ismayilli. It noted that ten people had been charged with criminal offences in connection with the events of 23 January 2013, and had been detained pending trial. In addition, fifty-two people had been arrested in connection with their participation in “actions causing a serious breach of public order”; some of them had been convicted of “administrative offences” and sentenced to a few days’ “administrative detention” or a fine, while others had been released. The statement further noted that “lately, biased and partial information has been deliberately disseminated, distorting the true nature of the mentioned events resulting from hooliganism”, including information about large numbers of injured people and the disappearance of one individual. The statement refuted that information, noting that only four people had been admitted to the regional hospital with injuries and that no one had disappeared. It further stated, inter alia, the following: “Following the carrying out of inquiries, it has been established that on 24 January 2013 the Deputy Chairman of the Musavat Party, Tofiq Yaqublu, and the Cochairman of the REAL Movement, Ilgar Mammadov, went to Ismayilli and made appeals to local residents aimed at social and political destabilisation, such as calls to resist the police, not to obey officials and to block roads. Their illegal actions, which were calculated to inflame the situation in the country, will be fully and thoroughly investigated and receive legal assessment.” 15. On 30 January 2013 the applicant commented on that statement on his blog. He noted that the Government had taken a decision to “punish and frighten” him, and that there were several reasons for that: firstly, the applicant’s blog posting of 28 January 2013, which had revealed facts embarrassing the Government; secondly, the fact that REAL had raised a public debate on the June 2012 legislative amendments aimed at keeping secret information concerning shareholders in companies, creating “a more clandestine environment for stealing the oil money”; thirdly, the applicant’s earlier criticism of the National Assembly, in which he compared it to “a zoo”, following enactment of the legislation placing “severe limitations on the freedom of assembly” by “introducing unjustifiably high monetary penalties for attending unauthorised demonstrations”; and lastly, the REAL Movement’s “quickly accumulating strength” prior to the presidential election, becoming a “serious barrier in the eyes of the traditional [political] players” and threatening “to spoil the repeat of the election farce performed year after year”. 16. On 29 January 2013 the applicant received a phone call from the Serious Crimes Department of the Prosecutor General’s Office and was orally invited to the department for questioning as a witness. Although that did not constitute a formal summons, the applicant went to the Prosecutor General’s Office and was questioned. 17. According to the record of the questioning, the applicant stated that he had arrived in Ismayilli in a car driven by another member of REAL at around 3.30 p.m. on 24 January 2013. After entering the town, they stopped from time to time and spoke to local residents without getting out of the car, in order to receive first-hand information about the events that had taken place up to that time. When they arrived at the central square where the IDEA building was located, they met a number of journalists and saw a large number of police and law-enforcement officers. At the square, the applicant spoke only to the journalists; he did not speak to any local residents. No violent clashes were happening at the square at that time. While at the square, the applicant saw Tofiq Yaqublu, who was also visiting the town, but separately from the applicant. They stopped to greet each other and immediately went their separate ways. The applicant and his colleague from REAL spent about thirty to forty minutes at the square. The applicant, his colleague from REAL, and one of the journalists then spent some time in a nearby teahouse. After a while, the three of them returned to Baku. On their way out of Ismayilli, they again stopped a few times and, from inside the car, spoke to passers-by about the situation in the town. 18. During the questioning, the investigator informed the applicant that it had been established from “the material in the criminal case file” that at around 5 p.m. of that day, while standing near the building of the Ismayilli Region Education Department, the applicant and Mr Tofiq Yaqublu had been inciting local residents to cause disorder, disobey the police, block roads and throw stones at the police. The applicant was asked to comment on that. He replied that that information was false and a calumny against him. 19. After the questioning had ended, the applicant went home. 20. In the evening of 3 February 2013 the applicant received another telephone call asking him to come in for further questioning. 21. In the morning of 4 February 2013 the applicant voluntarily appeared at the Prosecutor General’s Office. First, from 10.50 to 11.10 a.m. a face-to-face confrontation was held between the applicant and R.N., described in the record of the confrontation as a resident of the Ashagi Julyan village of the Ismayilli Region. According to a copy of that record (submitted by the Government to the Court as a separate document enclosed with their observations), R.N. stated that on 24 January 2013 he had been in Ismayilli where he had seen many police officers, as well as a number of young people slowly gathering in groups of five to seven. He heard people discussing the events of the day before. Among them, he saw Tofiq Yaqublu and the applicant. He did not know the applicant’s identity until he inquired about it and someone told him. He heard the applicant and Tofiq Yaqublu telling people to throw stones at the police and to capture the IDEA building. Following this, people started throwing stones at the police. 22. According to the record, in reply, the applicant stated that everything that R.N. had said was false and a laughable fabrication, and that it was an attempt to frame him and pressure him for political reasons. 23. After the questioning ended at 11.10 a.m., the applicant was not allowed to leave the building. 24. From 12.50 to 1.05 p.m. another face-to-face confrontation was held, this time with another Ismayilli Region resident, I.M. According to the record of the questioning (also submitted by the Government to the Court as a separate document enclosed with their observations), I.M. stated that on 24 January 2013 he had been in Ismayilli and had seen lots of young people gathering. There were also many police officers. Protesters were throwing stones at the police. Then he saw two persons standing near the Education Department building and telling protesters to throw stones, not to be afraid, and to capture the IDEA building. Having inquired from the bystanders who those two persons were, he was told that they were Tofiq Yaqublu and the applicant. Then he saw and heard two police officers named Namiq and Vahid tell the applicant and Tofiq Yaqublu to calm down, but to no avail. 25. According to the record, in reply, the applicant stated that I.M.’s statement was a fabrication and that “everything happening in this room” amounted to political sabotage against him and the Azerbaijani people. The applicant also noted in the record, in handwriting, that he had not been allowed to leave the building during the period of more than one hour between the two face-to-face confrontations, despite his wish to the contrary. 26. The above face-to-face confrontations were not specifically mentioned in the official charges against the applicant (see paragraph 27 below) or the prosecution’s subsequent requests for a judicial order on the applicant’s remand in custody or an extension of the detention period, and the names of R.N. and I.M. were not otherwise mentioned in either of the above or in any other official document made available to the Court by the parties and relating to the applicant’s pre-trial detention and the criminal proceedings against him. 27. After the second confrontation, the applicant was again denied permission to leave. At 3.24 p.m., following the arrival of his defence lawyer, the applicant was charged with criminal offences under Articles 233 (organising or actively participating in actions causing a breach of public order) and 315.2 (resistance to or violence against public officials, posing a threat to their life or health) of the Criminal Code. The specific acts attributed to the applicant were described as follows: “Beginning at around 3 p.m. on 24 January 2013, Ilgar Eldar oglu Mammadov, having taken advantage of the fact that from around 9.30 p.m. on 23 January 2013 a group of persons in the town of Ismayilli had engaged in acts of malicious hooliganism causing a serious breach of public order, had deliberately burned, in a publicly dangerous manner, property belonging to various persons [including] the Chirag Hotel, four cars, five mopeds and scooters, and an auxiliary building located in the yard of a private residential house, and had committed acts of violence against Government officials, having, in his false way of thinking, considered [the above events] as a ‘rebellion’, aiming to make the above acts develop and acquire a continuous character in order to create artificial tension and to violate the social and political stability in the country, being a resident of Baku, arrived in Ismayilli and, together with Tofiq Rashid oglu Yaqublu and with the active participation of others, [committed the following:] organised, as an active participant, acts causing a serious breach of public order, by means of openly and repeatedly inciting town residents [E.I.], [M.A.] and others, who had gathered at the square near the administrative building of the Regional Education Department located on the Nariman Narimanov Street opposite to the administrative building of [the IDEA], [to do the following:] [i] to enter in masses into the area in front of the building of [the IDEA], which is the competent body of the executive power of the Republic of Azerbaijan, and by doing so to create difficulties for the movement of traffic and pedestrians, [ii] to disobey the lawful demands to disperse, made by Government officials wanting to stop their illegal behaviour, [iii] to resist uniformed police officers protecting the public order, by way of committing violent acts posing danger to [police officers’] life and health, using various objects, [iv] to disrupt the normal functioning of [the IDEA], State enterprises, bodies and organisations, as well as public-catering, commercial and public-service facilities, by way of refusing to leave, for a long period of time, the areas where the acts seriously breaching the public order were being committed, and [v] to stop the movement of traffic, by way of blocking the central avenue and the Nariman Narimanov Street, and was finally able to achieve that, at around 5 p.m. of the same day in the town of Ismayilli, a group of persons consisting of [E.I.], [M.A.] and others had marched in masses from the mentioned square in the direction of the administrative building of [the IDEA] and had thrown stones at officers of the relevant bodies of the Ministry of Internal Affairs who were preventing [this march] in accordance with the requirements of the law. By these actions, Ilgar Eldar oglu Mammadov committed the criminal offences under Articles 233 and 315.2 of the Criminal Code of the Republic of Azerbaijan.” 28. From 4.30 to 5.10 p.m., the applicant was questioned again, this time as an accused. During the interview he gave essentially the same statement as during the interview of 29 January 2013 (see paragraph 17 above). 29. At around 6 p.m. the applicant was taken to the Nasimi District Court. The Deputy Prosecutor General lodged an application with the Nasimi District Court asking it to order the applicant’s remand in custody. The application was essentially a copy of the text of the decision to charge the applicant with the criminal offences (see paragraph 27 above). It was followed by a note stating that it was necessary to remand the applicant in custody because of the gravity and publicly dangerous character of the offences committed, because they carried a sanction of over two years’ imprisonment, and because there were “sufficient reasons” to believe that, if released, the applicant would abscond or obstruct the investigation by unlawfully influencing persons participating in the criminal proceedings. 30. The court hearing commenced at around 7 p.m. in the presence of the applicant, his lawyers, a member of the investigation team, and one of the prosecutors working in the Serious Crimes Department of the Prosecutor General’s Office. According to the applicant, and not disputed by the Government, the prosecution did not submit the case file or the records of the applicant’s questioning to the court. 31. At the hearing, the applicant and his lawyers submitted that the accusation against the applicant was groundless and was not supported by any evidence. As for the applicant’s conduct, they pointed out that he had voluntarily appeared before the prosecution as soon as requested to do so and that, therefore, there were no reasons to believe that he would abscond or interfere with the investigation. They argued that, for those reasons, his detention was not justified. 32. By a decision of 4 February 2013, the Nasimi District Court ordered the applicant’s remand in custody for a period of two months (until 4 April 2013). The part of the decision containing the court’s reasoning read as follows: “Having examined the [prosecution’s] application and enclosed documents and having heard the oral submissions of the parties, and taking into account the existence of sufficient grounds to believe that, if released, the accused Ilgar Eldar oglu Mammadov would abscond from the investigation or disrupt the normal course of the investigation by unlawfully influencing persons involved in the proceedings, the publicly dangerous character and gravity of the criminal offence committed, and the fact that he is charged with a criminal offence carrying a sanction of over two years’ imprisonment, the court considers that the preventive measure of remanding him in custody must be applied in his respect.” 33. On 5 February 2013 the applicant lodged a complaint with the Nasimi District Court, claiming that he had been unlawfully deprived of his liberty during the period from 11.10 a.m. to 7 p.m. on 4 February 2013. His complaint was rejected on 22 February 2013. 34. On 6 February 2013 the applicant lodged an appeal against the detention order of 4 February 2013. He argued that he had been detained in breach of the domestic law and Article 5 of the Convention. He complained that, although the introductory part of the detention order stated that the court had reviewed preliminary evidence collected by the prosecution, no evidence or any other information giving rise to a reasonable suspicion that he had committed a criminal offence had been presented by the prosecution to the first-instance court. The court had issued the order solely on the basis of the decision to charge the applicant with the criminal offences and the prosecution’s request to order his remand in custody, without independently verifying whether there was a reasonable suspicion against him. He further complained that the court had not provided relevant and sufficient reasons to justify his detention by finding that he might abscond from the investigation or attempt to obstruct the proceedings. As for his conduct prior to arrest, he had been cooperative with the authorities and, on more than one occasion, had appeared for questioning after a simple phone call, even without having been formally summoned. Other factors, such as the fact that he had a wife and a small child, a permanent residence and a job in Baku, his personality, social status and professional occupation, his affiliation with the Council of Europe’s programmes, no prior criminal record, and so on, also showed that he was very unlikely to abscond and should have been taken into account by the court. In his appeal, as well as relying on the relevant domestic law, the applicant also relied extensively on the European Court’s case-law and cited a number of its judgments concerning Article 5 of the Convention. 35. On the same date the applicant submitted to the Nasimi District Court observations on the transcript of that court’s hearing of 4 February 2013, to be included in the case file. The observations mainly concerned the prosecutor’s inability and refusal to answer questions posed by the defence during the oral hearing. Those questions concerned the prosecution’s failure to produce any evidence on which its suspicions against the applicant were based or to identify the specific circumstances which had led it to believe that the applicant, if released, would abscond or obstruct the proceedings. 36. The Baku Court of Appeal’s hearing was scheduled to be held on 8 February 2013. The hearing was delayed for some hours, awaiting the Nasimi District Court’s examination of the applicant’s observations on the transcript of the hearing and the request to include them in the documents related to his pre-trial detention, which had been forwarded to the Baku Court of Appeal. During the delay, the Nasimi District Court took a decision refusing to incorporate the applicant’s observations into the transcript of the hearing. 37. According to the applicant, and not disputed by the Government, as at the first-instance hearing, the prosecution’s case materials were not made available to the court at the appellate hearing. 38. By a decision of 8 February 2013 the Baku Court of Appeal rejected the applicant’s appeal and upheld the Nasimi District Court’s detention order of 4 February 2013, finding as follows: “Taking into account the personality of Ilgar Eldar oglu Mammadov, the publicly dangerous character and gravity of the criminal offences in question, the fact that [those offences] belong to the category of less serious crimes, that [the applicant], if released, could abscond and would disrupt the objectivity of the investigation by unlawfully influencing persons involved in the criminal proceedings, the court considers that the Nasimi District Court’s decision of 4 February 2013 ordering the applicant’s remand in custody is lawful and justified and must be upheld. ... In Van de Hurk v. the Netherlands [(19 April 1994, § 61, Series A no. 288], the European Court of Human Rights noted that the right to a fair trial required that a court should give reasons for its decisions. This does not mean, however, that a detailed answer should be given to every argument raised by the parties.” 39. Having provided the above reasoning, the Baku Court of Appeal did not address any of the specific arguments raised by the applicant against the necessity of detention (see paragraph 34 above). 40. On 11 March 2013 the applicant lodged a request with the Nasimi District Court to change the preventive measure of remand in custody to house arrest. He argued that his previous conduct had showed that he did not intend to avoid the investigation. Furthermore, his personal circumstances (his family situation, the fact that he had a permanent job and a permanent place of residence, his active political career in Baku, and so on) made it very unlikely that he would abscond. Lastly, in his case, “persons involved in the criminal proceedings” lived in Ismayilli, and not in Baku where he resided. Therefore, it was unlikely that he would unlawfully influence them. 41. At the hearing on 12 March 2013 the prosecution submitted that the request was “groundless” and reiterated that there was a risk that if the applicant were not detained, he would abscond or disrupt the investigation. On the same day the Nasimi District Court rejected the applicant’s request. The reasoning provided by the court was as follows: “Having examined the counsel’s request, having heard the persons participating in the hearing, and having examined the case material, the court considers that the request cannot be granted because the grounds for detaining the accused person have not ceased to exist.” 42. The applicant lodged an appeal against that decision. On 27 March 2013 his appeal was dismissed by the Baku Court of Appeal. 43. In the meantime, on 13 March 2013 the prosecution requested an extension of the applicant’s detention (originally authorised until 4 April 2013), noting that, despite the fact that a number of investigative measures had been taken, the case was complex and more time was needed to complete the investigation. According to the applicant, and undisputed by the Government, apart from that request, the prosecution did not submit to the court any other material relating to the criminal case. At the hearing of 14 March 2013 concerning the extension request, the prosecution gave no answer to the defence’s questions as to what specific evidence served as grounds for suspecting the applicant of having committed a criminal offence, what specific investigative measures had been taken so far and what further measures needed to be taken. Following the hearing, the applicant’s lawyer formally requested that the judge include the above questions and the (lack of) answers in the transcript of the hearing, but to no avail. 44. On 14 March 2013 the Nasimi District Court extended the applicant’s pre-trial detention by two more months (until 4 June 2013), providing the following reasoning: “Taking into account the fact that the accused is charged with offences belonging to the category of less serious crimes, the complexity of the criminal proceedings, the need for more time to complete the investigation, and the necessity to carry out a number of investigative measures, the court considers that [the prosecution’s] request must be granted and the period of the accused’s detention extended ... to 4 June 2013.” 45. The applicant appealed, reiterating in detail all the arguments against his detention that he had previously raised before the courts. He also argued that it was not permissible, under the domestic law and the Convention, to justify prolonging his pre-trial detention on the ground that the prosecution needed more time to do its job. Again, he cited a number of relevant judgments of the European Court concerning various issues relating to pretrial detention. 46. On 19 March 2013 the Baku Court of Appeal dismissed the applicant’s appeal, upholding the extension decision of 14 March 2013 and providing the same reasoning as the first-instance court. 47. On 5 April 2013 the applicant applied to the Nasimi District Court for bail, reiterating his previous arguments against his detention. On 8 April 2013 the Nasimi District Court rejected his request, finding that the grounds justifying his detention, as specified in its decision of 14 March 2013, “had not ceased to exist”. 48. The applicant appealed, reiterating in detail his arguments for release. On 15 April 2013 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 5 April 2013. 49. On 30 April 2013 the head of the investigation team decided to charge the applicant with new offences, this time under Articles 220.1 (mass disorder) and 315.2 (resistance to or violence against public officials, posing a threat to their life or health) of the Criminal Code. In essence, the charge under Article 220.1, which carried a much heavier sentence (four to twelve years’ imprisonment), replaced the previous charge under Article 233. No changes were made in the original description of the accusations against the applicant (see paragraph 27 above). 50. One of the effects of the new charge under Article 220.1 of the Criminal Code was that the applicant could no longer apply for bail, because the law did not permit individuals accused of deliberately committing “serious criminal offences” to be released on bail (see paragraphs 71 and 74 below). Moreover, as a person charged with a “serious criminal offence”, the applicant’s pre-trial detention could now be extended for a longer overall period (see paragraphs 71 and 73 below). 51. On 15 May 2013 the Nasimi District Court extended the applicant’s detention (which had been authorised until 4 June 2013) by another three months (until 4 September 2013). At the hearing, the applicant’s lawyer reiterated his specific arguments for release and further argued that there were no relevant factors justifying the applicant’s detention. In its decision, the District Court justified the applicant’s continued detention as follows: “Having heard the parties, having examined the [prosecution’s] request on the basis of the case material, and taking into account the scope of the investigative measures to be taken and the fact that the grounds for [the applicant’s] detention have not ceased to exist, the court considers that [the prosecution’s extension] request must be granted and the period of [the applicant’s] detention extended ...” 52. The applicant appealed, reiterating his previous arguments. On 27 May 2013 the Baku Court of Appeal upheld the extension order, providing reasoning similar to that given by the courts previously. 53. On 14 August 2013 the Nasimi District Court extended the applicant’s detention (previously authorised until 4 September 2013) by another two months (until 4 November 2013). On 20 August 2013 the Baku Court of Appeal upheld the detention order on appeal. The arguments made before the courts and the courts’ reasoning were essentially the same as in the previous extension hearings and decisions. 54. No further extension decisions are available in the case file. 55. The applicant’s criminal trial began in November 2013. On 17 March 2014 the Sheki Court of Serious Crimes convicted the applicant and sentenced him to seven years’ imprisonment. The conviction is not yet final and the appeal is pending. 56. The applicant’s case generated wide publicity. Some of the select reactions to the case are summarised below. 57. Immediately after the applicant’s arrest, a number of domestic NGOs, as well as international NGOs such as Amnesty International, Human Rights Watch and Article 19, condemned the authorities’ actions, assessing them as a “politically motivated persecution” on “trumped up” charges. 58. On 6 February 2013, Pedro Agramunt and Joseph Debono Grech, PACE Monitoring Committee co-rapporteurs on Azerbaijan, expressed their concern at the arrest of the applicant, noting that it “gave rise to justified doubts and legitimate concerns” and urging the authorities to release the applicant and Tofiq Yagublu. 59. On 8 February 2013, Thorbjørn Jagland, the Secretary General of the Council of Europe, made the following official statement: “I am concerned by ... the heavy-handed response of the police to the protests. I am particularly disturbed by the arrest on 4 February of Tofig Yagublu and Ilgar Mammadov, in relation to recent events in Ismayilli. Mr Mammadov is the Director of the Baku School of Political Studies, a close co-operation partner of the Council of Europe. Today’s decision of the Baku Court of Appeal not to release these two men and its refusal to allow the Council of Europe’s representative to be present during the court proceedings is of particular gravity”. In his further statement of 3 May 2013, Thorbjørn Jagland “expressed his concern and disappointment” at the new charges against the applicant. 60. On 9 February 2013, the spokespersons of EU High Representative Catherine Ashton, and the European Commissioner for Enlargement and Neighbourhood Policy, Štefan Füle, issued a statement expressing concern over the applicant’s arrest and urged the authorities to ensure a fair, transparent and independent investigation of the charges against him. 61. On 13 June 2013, the European Parliament adopted a resolution entitled “Azerbaijan: Case of Ilgar Mammadov” (2013/2668(RSP)). Inter alia, the resolution assesses the applicant’s detention as “unlawful” and “an apparent attempt to keep him behind bars pending the forthcoming elections”, “strongly condemns the detention of Mr Mammadov, calls for his immediate and unconditional release and an end to his prosecution”, and “expresses serious concern over reports by human rights defenders and domestic and international NGOs about the alleged use of fabricated charges against politicians, activists and journalists”. 62. The process of registration of candidates for the presidential elections started on 4 August 2013. The Electoral Code required candidates to submit their initial eligibility documents to the Central Electoral Commission (“the CEC”), which would then issue them with official signature sheets in order to collect a minimum of 40,000 voter signatures in support of the nomination. The deadline for submission of the signatures and all other documents was 9 September 2013. 63. Since the applicant needed an authorised representative to deal with various matters concerning his nomination, on 1 August 2013 the applicant’s lawyer requested the Serious Crimes Department of the Prosecutor General’s Office to set up a meeting between the applicant and a notary public in the Baku Detention Facility, in order to prepare a power of attorney for his representative in electoral matters. The permission for a notary public’s visit was given on 21 August 2013. The notary public visited the detention facility and certified the power of attorney on 23 August 2013. 64. Pending a response to the above request, on 10 August 2013 the applicant sent his initial eligibility documents to the CEC from the detention facility’s post office. According to the applicant, the documents were not delivered to the CEC until 22 August 2013. 65. On 23 August 2013 the CEC returned the applicant’s initial eligibility documents, having found that they had shortcomings. After rectification of the shortcomings, the applicant’s representative resubmitted the documents on the same day. 66. On 27 August 2013 the CEC preliminarily accepted the applicant’s nomination as a candidate in the elections, pending the verification of the required voter signatures (see paragraph 62 above) due by 9 September 2013. The applicant’s representatives submitted the required signature sheets. 67. On 13 September 2013 the CEC refused to register the applicant as a candidate, finding that his signature sheets contained a number of invalid signatures and that the number of valid signatures in support of the applicant was below the minimum (40,000) required by law. | 1 |
test | 001-179870 | ENG | RUS | COMMITTEE | 2,018 | CASE OF MOKIN 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 | 4. The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-157772 | ENG | MKD | ADMISSIBILITY | 2,015 | TRADE UNION IN THE FACTORY "4TH NOVEMBER" v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska | 1. The applicant is the trade union in the “4th November” factory in Bitola. It is represented before the Court by Mr F. Medarski, a lawyer practising in Skopje. 2. The Macedonian Government (“the Government”) are represented by their Agent, Mr K. Bogdanov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 4 November 2008 the applicant union announced that its members would go on strike because of the lack of success of negotiations that had been pending with the employer for some time regarding payment of leave allowance (регрес за годишен одмор) for 2006, the signing of the employer’s collective agreement, and increases in pay. As stated in the announcement, the strike was to begin at 8 a.m. on 6 November 2008 at the workplace and would continue until the applicant union’s demands were met. As stated in the decision to strike, the applicant union undertook to negotiate with the employer before and during the strike, in order to ensure that the workers’ demands were acceded to in a friendly manner. It was also stated that if an agreement was reached between the applicant union and the employer it would be regarded as a collective agreement of the employer. 5. On 13 November 2008 the applicant union and the employer reached an agreement for a 20% pay rise and the payment of a one-off bonus for production workers. According to the agreement, the strike action was suspended (активностите на штрајкот се запираат) and the negotiations were to continue after termination of the “campaign” (apparently a production stage in the factory). 6. In the light of legislative amendments in December 2008 introducing gross salaries, on 5 February 2009 the applicant union asked for the pay rise stipulated in the agreement to be incorporated in the workers’ gross salaries. The same request was made regarding travel and food allowances (трошоци по основ на исхрана и превоз). 7. As established in the subsequent civil proceedings (see below), the employer responded on 9 March 2009, saying that it had fulfilled the wage-related obligations set out in the agreement of 13 November 2008, and that the negotiations on the collective agreement would continue. It also offered an additional 10% pay rise for production workers. 8. The applicant union and the employer then exchanged letters in which they stated their positions regarding the contentious issues. In a letter of 12 March 2009 the employer set out two proposals concerning pay increases, and indicated that the negotiations regarding the collective agreement would continue. 9. By a letter dated 13 March 2009 the applicant union made a final request (a 30% salary increase for production workers and incorporation of the food allowance in the gross salary) and asked the employer to state its position by midday, under the threat of resorting to other statutory measures. 10. In another letter dispatched that day by registered mail (which the employer received on 16 March 2009) the applicant union informed the employer: “... since you refuse to settle the wage dispute, we hereby inform you that the strike action will resume at 7.30 a.m. on 17 March 2009 in the factory. We emphasise that we are ready to negotiate both now and during the strike in order to find a solution (that is acceptable for both parties) ...” 11. By a letter dated 16 March 2009 the employer formulated four proposals regarding a pay rise for production and/or all workers and travel and food allowances, and requested that the applicant union reply by 18 March 2009. The employer stated that its proposals corresponded to its financial capacity at the time. By a letter dated 17 March 2009 the applicant union refused the employer’s offer but expressed its willingness to continue negotiating. In reply, the employer informed the applicant union that by going on strike on 17 March 2009 it had violated the provisional agreement of 13 November 2008. 12. On an unspecified date the employer brought a civil action against the applicant union, asking the courts to declare the strike announced on 16 March 2009 unlawful. 13. In a judgment of 28 April 2009 the Bitola Court of First Instance (“the first-instance court”) allowed the employer’s action and declared the strike announced on 16 March 2009 unlawful. The court held that the strike had not been announced within the time-limits specified in the Collective Agreement for the Agricultural and Food Sector (“the sector collective agreement”), which was binding on the applicant union. Since the applicant union, by submissions of 5 February and 13 March 2009, had made new requests that had not been included in the agreement of 13 November 2008, the court found that the applicant union had gone on strike in contravention of section 236(3) of the Labour Act (“the Act”, see paragraph 21 below) according to which a strike could not begin before any out-of-court settlement proceedings had been brought to an end. 14. On 28 May 2009 the Bitola Court of Appeal allowed an appeal by the applicant union and set aside the lower court’s judgment. It instructed the first-instance court to establish whether the employer had signed the sector collective agreement, which in the court’s opinion was the determining factor as to the applicability of that collective agreement to the dispute between the parties. The lower court was also instructed to establish whether at the material time the negotiations were still pending, and if so whether, in the light of its subsequent requests, the applicant union had been obliged to announce the strike of 16 March 2009. 15. On 25 June 2009 the first-instance court dismissed the employer’s action. Relying on section 236 of the Act, it held that the applicant union had gone on strike on the basis of its decision of 4 November 2008 (see paragraph 4 above), which had not been set aside (вон сила). With that decision, the applicant union had informed the employer about the reasons for the strike and the place and time of the strike. The agreement reached between the parties on 13 November 2008 had been provisional and had concerned only part of the applicant union’s demands (concerning a pay rise for production workers). The employer had started implementing the agreement of 13 November 2008 up to the point when the legislative amendments introducing gross salaries entered into force in December 2008. In view of the applicant union’s requests post-dating the agreement, the court concluded that negotiations between the parties had been pending and that the applicant union had not been required to announce the strike of 16 March 2009. The court also found that the strike could not be regarded as a new strike, but was rather a continuation of the strike announced on 4 November 2008. That negotiations were ongoing was supported by the fact that after the parties had reached the agreement of 13 November 2008 both strikers and non-strikers were regularly at work and production had continued (редовно оделе на работа, редовно се одвивал работниот процес). The court also established that the employer was at the time neither a member of the Union of Employers (Здружение на работодавачи) nor a signatory to the sector collective agreement (the latter accordingly was not binding on the employer at the time). In such circumstances, the court ruled that the strike had been in compliance with the Act, pursuant to which the right to strike could not be restricted because of the requirement for mediation. 16. On an appeal by the employer, on 7 September 2009 the Bitola Court of Appeal overturned the first-instance court’s judgment and declared the strike announced on 16 March 2009 unlawful. The court held that: “The court considers that after the agreement (of 13 November 2008) had been concluded and the [employer] had satisfied part of [the applicant’s] requests, negotiations were still pending, which is not disputed between the parties. In view of the above-cited provision (section 236 of the Act), the requirement for mediation cannot restrict the right to strike if such a requirement is specified by this law or before the end of any out-of-court settlement proceedings agreed upon by the parties. This court considers that the strike of 17 March 2009 is unlawful because mediation and negotiations ... are still pending. (The applicant union) submitted new requests that had not been specified in the agreement [of 13 November 2008] ... [The applicant union], without giving any reply, refused the new proposals made [by the employer] and continued the strike, despite the employer’s willingness to fulfil the requests that were not part of the agreement. Instead of considering the four proposals made by the employer and providing an explanation for refusing each of them, [the applicant union] unilaterally informed the employer on 16 March 2009 that the strike would continue. This means that while the negotiations were pending it went unilaterally into a new strike, in contravention of section 236(3) of the Labour Act. In view of the foregoing, the court allows [the employer’s] appeal ... and prohibits (забрани) the [the applicant union’s] strike announced on 16 March 2009 as contrary to the Labour Act, all the more so since the negotiating team of [the applicant union] suggested to [the employer], with the notification of 17 March 2009, that negotiations should continue.” 17. On 18 December 2009 the employer claimed compensation for pecuniary loss allegedly sustained as a result of the strike by the applicant union which had lasted from 17 March to 17 October 2009. The applicant union denied that the employer had sustained any damage, alleging that workers who had gone on strike had been replaced. In such circumstances, there had been no adverse effects and “the campaign had ended successfully”. 18. In the observations on the admissibility and merits of the application, the Government informed that on 26 November 2010 the first-instance court allowed the employer’s claim and ordered the applicant union, under section 242(2) of the Act (see paragraph 21 below), to pay 7,341.326 Macedonian denars (MKD) with interest in respect of “pecuniary damage caused by the unlawful strike held between 17 March and 17 October 2009.” The court relied on an expert report, according to which there had been “two campaigns for the production of raw sugar” during the strike, and the employer had sustained damage in view of increased energy costs. In the absence of an appeal by the applicant union, this judgment became final on 31 December 2010. 19. The applicant union submitted a list of twenty-five employees who were members of the applicant union and who had been dismissed from work owing to their participation in the strike. In this connection, it submitted court judgments in which the dismissal of an employee had been confirmed at the first and second levels of jurisdiction. By judgments of 29 February and 30 May 2012 the Supreme Court overturned the dismissal of two of the employees named in that list (Рев.бр.898/2010 and Рев.бр.83/2011). The parties did not submit any further information in this respect. 20. The relevant provision of the Constitution reads as follows: The rights of employees and their status are regulated by law and collective agreements. The right to strike is guaranteed. The law may restrict the conditions for the exercise of the right to strike in the armed forces, the police and administrative bodies.” 21. The relevant provisions of the Labour Act read as follows: (1) The employer and the employee can decide that an individual or collective labour dispute is settled by a conciliation council (мировен совет) composed of three members, of which one member is appointed by the employer and one by the employee and they jointly appoint the remaining member ... (1) A collective agreement may specify that collective labour disputes are settled by arbitration. (2) The collective agreement specifies the composition, procedure and other relevant issues for the arbitration process. (3) If the employer and the employee agree that a dispute is to be settled by arbitration, the judgment of the arbitration is final and binding for both parties. (4) The judgment of the arbitration is not subject to judicial review. A collective agreement can be general for the whole State, specific for a particular (economic) sector, or individual, for a particular employer. (1) At the State level there are: 1) business general collective agreements and 2) public-sector general collective agreements. (1) A general collective agreement is directly applicable and is binding on employers who are members of the union of employers, signatories to the collective agreement, or who have joined that union subsequently. (2) A sector collective agreement is directly applicable and is binding on employers who are members of the union of employers, signatories to the collective agreement, or who have joined that union subsequently. (1) A collective agreement is binding on all persons who have entered into it and on all who, at the relevant time, were or have subsequently become members of the unions which had entered into the collective agreement. (2) A collective agreement is also binding on all persons who have entered into it and on all who have subsequently become members of the unions which had signed up to it ... Rights and obligations during strikes Section 236 (1) A trade union and its federations may announce and go on strike in order to protect the economic and social rights of their members, in accordance with the law. (2) The employer or the employers’ federation shall be notified in writing about the strike ... (3) The strike cannot begin before negotiations (постапка за помирување) have ended, as provided for by law. The requirement for negotiations cannot restrict the right to strike if such a requirement is specified by law or before [the end of] any out-of-court settlement proceedings agreed upon by the parties ... (5) Any notice announcing a strike must contain information about the reasons for the strike and the place and the time of the strike. (6) The strike must be organised in a manner that will not impair or disturb the work routine of workers not participating in the strike and [in a manner] that will not restrict access to the workplace by workers and persons in authority.” (1) The employer and the association of employers may ask the competent court to declare unlawful a strike that has been organised contrary to the statutory provisions. (2) The employer can seek compensation for damage sustained by a strike organised contrary to the law. 22. The Government submitted copy of the general business collective agreement of 23 June 2006 (together with an accord extending its validity until 14 June 2009, Official Journal no.78/2008). The relevant provisions of the 2006 general business collective agreement (Official Journal no. 41/2006) were as follows: Disputes that cannot be settled through negotiations can be settled by means of mediation or arbitration. Mediation is a process in which an independent third person appointed by the parties to the dispute assists them in settling the dispute. Arbitration is dispute resolution by a third person who is appointed by the parties to the dispute and who resolves the dispute by making a decision. Individual and collective disputes can be settled out of court or by a special conciliation council. An out-of-court settlement is set in motion by a proposal from any party to the dispute, which is to be submitted up to five days after the dispute; in the proposal the appellant must describe the nature of the dispute. The other party is required to reply within three days of receiving the proposal. Each party to the dispute appoints one member of the conciliation council. They jointly appoint the third member of the conciliation council from among the candidates on the list of mediators ... Parties are required to complete the out-of-court settlement proceedings within fifteen days of the submission of the proposal for an out-of-court settlement ... In a collective labour dispute any party to the dispute can seek settlement by means of arbitration up to eight days after the beginning of the dispute or after termination of the out-of-court settlement proceedings. One or more arbiters can be included in the arbitration. Parties to the disputes jointly appoint the arbiter(s) from the list of arbiters ... The decision of the arbiter is final and binding on the parties concerned. Arbitration proceedings are to be completed within fifteen days.” 23. The Government also provided a copy of the 2009 general business collective agreement (Official Journal no. 88/2009), which contained identical rules on out-of-court settlement of labour disputes to those in the 2006 collective agreement. 24. On the basis of an application by the Federation of Trade Unions (Сојуз на синдикати), on 10 May 2006 the Constitutional Court rejected as unconstitutional the part of section 236(3) of the Act which provides that a strike cannot begin before negotiations have ended, as provided for by law and “a decision of the Minister for Labour (и акт на Министерот надлежен за работите од областа на трудот)”. Relying on international materials and the constitutional provisions cited above (see paragraphs 20, 25 and 26), the Constitutional Court stated that: “The court considers that the disputed provision introduced, in principle, a requirement of prior exhaustion of out-of-court settlement proceedings before resorting to a strike, as a means of protection of economic and social rights ... According to the court ... strikes and mediation in labour-related matters are closely linked, given the fact that friendly settlement of labour disputes (мирно решавање на работните спорови) can have, in certain cases, a preventive effect in that they avoid strikes being held, and if a strike has already begun it is a means to achieve an out-of-court settlement of a particular dispute. The court therefore considers that it is ... decisive that both issues (strike and mediation) concern labour issues, which, as provided for in Article 32 § 5 of the Constitution, are to be regulated by law and collective agreements. They cannot be regulated by a decision of the Minister ...” 25. Article 6 of the European Social Charter reads as follows: With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake: 1. to promote joint consultation between workers and employers; 2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; 3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: 4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.” 26. Article 8 of the International Covenant on Economic, Social and Cultural Rights reads as follows: 1. The States Parties to the present Covenant undertake to ensure ... (d) the right to strike, provided that it is exercised in conformity with the laws of the particular country.” 27. Relevant provisions of this report read as follows: Paragraph 4 - Collective action ... Procedural requirements pertaining to collective action The trade union which has called the strike must notify the employer against whom it is directed, specifying the reasons for the strike, the place where it is to be held, and the date and time of the strike’s commencement. A strike cannot take place before the completion of the conciliation/mediation procedures. The Committee asks whether there are any other procedural requirements that must be fulfilled before a lawful strike can take place, such as ballot requirements. ... Conclusion Pending receipt of the information requested the Committee defers its conclusion.” 28. Relevant provisions of this report read as follows: “Concerning procedural requirements that must be fulfilled before a lawful strike can take place, the Committee notes that no other requirements than the ones mentioned in the previous conclusion are to be fulfilled. ... Conclusion Pending receipt of the information requested, the Committee concludes that the situation in “the former Yugoslav Republic of Macedonia” is in conformity with Article 6 § 4 of the Charter.” | 0 |
test | 001-173473 | ENG | TUR | CHAMBER | 2,017 | CASE OF GÜNER v. TURKEY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review) | Stéphanie Mourou-Vikström;Georges Ravarani | 4. The applicant was born in 1980 and lives in Istanbul. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 22 December 2009 the Ankara Magistrates’ Court decided to restrict access to the investigation file in accordance with Article 153 § 2 of the Code of Criminal Procedure (the “CCP”), Law no. 5271 7. On 9 February 2010 the applicant was arrested and taken into custody on suspicion of forming a criminal organisation and fraudulent use of credit cards. 8. On 11 February 2010 the applicant’s statement was taken by the police in the presence of his lawyer and he was questioned at length about his telephone conversations that had been intercepted. The police read out the transcripts of the intercepted conversations, and the applicant did not deny that he had had these conversations but claimed that they did not prove that he was guilty. 9. On 12 February 2010 the investigating judge questioned the applicant in the presence of his lawyer. The applicant denied that he was involved in a criminal organisation and submitted that the intercepted calls did not prove that he was guilty. The investigating judge ordered the applicant’s detention on remand taking into account the strong suspicion that he had committed the alleged offence, the risk of absconding and tampering with evidence as well as the risk of coercing some of the witnesses and victims. 10. On various dates the applicant requested his release pending trial. These requests were dismissed by the courts, having regard to the nature of the offence with which the applicant was charged, the existence of a strong suspicion that the applicant had committed the offence in question, the state of the evidence, the risk of absconding and tampering with evidence as well as the time spent in detention. The applicant objected to these decisions. By decisions of 22 April 2010 and 20 October 2010 the appeal courts, without holding a hearing, rejected the applicant’s objections based on the information contained in the case file. 11. Upon his application, on 19 January 2011, the 26th Chamber of Ankara Criminal Court ordered the applicant’s release having regard to the time he spent in detention. | 1 |
test | 001-160711 | ENG | ROU | COMMITTEE | 2,016 | CASE OF MACOVEI AND OTHERS v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. | 1 |
test | 001-184804 | ENG | HUN | COMMITTEE | 2,018 | CASE OF Z.G. v. HUNGARY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 4. The applicant was born in 1979 and lives in Budapest. 5. The applicant was employed at a State-owned company from 1 January 2011 until the termination of her employment on 30 April 2013. A certain part of her severance payment was taxed at 98% rate in the amount of HUF 1,685,600 (approximately EUR 5,600). | 1 |
test | 001-184276 | ENG | RUS | CHAMBER | 2,018 | CASE OF VOYNOV v. RUSSIA | 4 | Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Article 8 - Right to respect for private and family life) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom | 5. The applicant was born in 1985 and lives in Oryol. He is currently serving his sentence in IK-7 in the village of Areyskoye, Krasnoyarsk Region. 6. The applicant, his partner and his mother were living in Oryol when the applicant was charged with drug-related crimes. 7. On 2 December 2009 the Federal Penal Authority (“Федеральная служба исполнения наказаний”, “the FSIN”) of Russia sent a telegram to the FSIN department for the Oryol Region (“the Oryol FSIN”) instructing the latter to send each month up to forty people detained in remand prisons and sentenced to a term of imprisonment in a strict-regime facility to the Krasnoyarsk Region. The instruction was valid as of 1 December 2009 until further notice. 8. On 7 December 2009 the Sovetskiy District Court of Oryol convicted the applicant of drug-related crimes and sentenced him to twelve years’ imprisonment in a strict-regime post-conviction detention facility. On 2 February 2010 the Oryol Regional Court upheld the conviction on appeal. 9. Acting on the basis of the FSIN of Russia’s instruction of 2 December 2009, on an unspecified date the Oryol FSIN decided, in view of the overcrowding in the postconviction detention facilities in the Oryol Region, that the issue of which particular facility the applicant would be transferred to should be resolved by the FSIN department for the Krasnoyarsk Region (“the Krasnoyarsk FSIN”). The latter allocated the applicant to IK-7, a strict-regime post-conviction detention facility in the village of Areyskoye, Krasnoyarsk Region (about 4,200 km from Oryol), to serve his sentence. The applicant has been detained there since 20 April 2010. 10. The applicant has repeatedly asked the penal authorities at different levels to transfer him to a detention facility located closer to Oryol so that he could effectively maintain family ties while serving his sentence. 11. On 12 November 2010 the FSIN of Russia rejected the applicant’s request, informing him that, under Article 81 of the Code on the Execution of Sentences (“the CES”), in the absence of exceptional circumstances convicts were to serve their prison term in its entirety in the same detention facility, and that there were no such exceptional circumstances in the applicant’s case. They noted as follows: “[a]s regards maintaining the convict’s social ties, the right to receive visits and parcels as well as the right to correspondence and phone calls should be realised in accordance with the laws on execution of sentences in force and does not depend on the place in which he is serving the sentence.” 12. The applicant brought civil proceedings against the Oryol FSIN, claiming compensation for pecuniary and nonpecuniary damage caused by their decision to transfer him to a penal facility in the Krasnoyarsk Region in breach of his right, under Article 73 § 1 of the CES, to serve his prison sentence in his home region, which had adversely affected his capacity to maintain his family and social ties. 13. On 3 August 2012 the Zavodskoy District Court of Oryol dismissed the claims for damages with reference to Article 73 § 2 of the CES and Ruling No. 1700-O-O of the Constitutional Court of Russia. The court held that the Oryol FSIN’s decision had been lawful because between December 2009 and February 2010 the penal facilities in the Oryol Region had been overcrowded. It also noted that the defendant had acted in accordance with the FSIN of Russia’s instructions. The court did not address the applicant’s argument regarding his difficulties in maintaining family ties because of the distance between his family home and the detention facility. It appears that the applicant did not appeal against the judgment. 14. Between July 2011 and October 2013 the applicant’s partner made long-term family visits to IK-7 on six occasions. In 2014 she gave birth to the couple’s daughter. While in IK-7, the applicant received a number of parcels and phone calls from his mother and partner. | 1 |
test | 001-179435 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KOROTEYEV AND SITARSKIY 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);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 alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard. They also raised other complaints under the provisions of the Convention. | 1 |
test | 001-173370 | ENG | LVA | CHAMBER | 2,017 | CASE OF OSIPKOVS AND OTHERS v. LATVIA | 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) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev | 5. After the regaining of independence, in 1991 property reform legislation came into force in Latvia and provided that former owners or their heirs could reclaim property nationalised in 1940. 6. The second applicant and two other individuals were the heirs of A.S. In 1999 they asked the Riga Regional Court to recognise their title to 30 ha of forest in Jurmala (hereinafter “the contested property”) which had allegedly belonged to A.S. and was nationalised in 1940. They also asked the court to recognise their right to receive a plot of land of the same value in Jurmala, as it had not been possible to establish the precise boundaries of the inherited land. 7. On 7 May 1999 the Riga Regional Court ruled in favour of the claimants. It recognised that there was no question over whether the claimants were the heirs of the late A.S., as that had been established by a court order in 1995. Referring to documents received from the State Archive and the State Land Authority (Valsts Zemes dienests), it also established that A.S. had purchased 30 ha of forest in Jurmala. Referring to section 12 of the Law on Land Reform in the Cities of the Republic of Latvia (Par zemes reformu Latvijas Republikas pilsētās), which provided that any requests after 1 June 1994 for the restoration of property rights should be decided by a court, the Riga Regional Court recognised that the second applicant owned a two-third share of the forest in Jurmala and that the other two claimants owned a sixth each. As there was no evidence of what the precise boundaries of the forest were, the court recognised the claimants’ right to receive a plot of land of the same value elsewhere. 8. Jurmala City Council was a defendant in the above proceedings and a representative of Jurmala City Land Commission contested the claim, arguing that in 1940 the contested property had belonged to several individuals as undivided property, and the archive documents did not show what part of that property each claimant could be entitled to. 9. The judgment was not appealed against and became final on 8 June 1999. In April 2000, at the claimants’ request, the Riga Regional Court adopted an additional decision specifying that the contested property had historically been part of the Bulduri estate forest. 10. After adoption of the above judgment, the Jurmala City Land Commission informed the claimants, the Jurmala City Council and the State Land Authority several times of problems in enforcement of the judgment. The Jurmala City Land Commission maintained that the archive material, which had been obtained after the above judgment had been adopted, did not give information as to the location of the contested property. On those grounds, in October 2000 the State Land Authority asked the Prosecutor General’s Office to lodge an application for supervisory review (protests) asking for the judgment of 7 May 1999 to be quashed. 11. In November 2000 the Prosecutor General’s Office dismissed the request, arguing that reassessment of evidence could not serve as grounds for triggering supervisory review proceedings. 12. On several occasions the second applicant complained to the Jurmala City Council and the Jurmala City Land Commission about delays in the enforcement of the judgment. 13. In order to comply with the judgment, on 6 December 2002 the Jurmala City Land Commission adopted decisions allocating four plots of land to the claimants. 14. On 27 December 2002 the title to the four plots of land was entered in the land register, and on 8 and 9 January 2003 the second applicant and the other two claimants sold their respective plots to the fifth applicant, the limited liability company Bulduru Muiža, the owner and director of which at the material time was the second applicant. Between January 2002 and October 2003 the first applicant was the president of the fifth applicant, and between October 2003 and August 2007 the first applicant was its chairman of the board. 15. On 24 October 2003 the President of the Civil Division of the Senate of the Supreme Court lodged an application for supervisory review with regard to the judgment adopted on 7 May 1999 by the Riga Regional Court, arguing that there was a lack of evidence to corroborate that A.S. had owned the property before 1940. As information received from the State Archive had suggested, the contested property had consisted of undivided shares and therefore it could not be concluded that A.S. had been the sole purchaser of 30 ha of a forest. 16. A copy of that application was sent to the second applicant and the other two parties to the initial proceedings, inviting them to submit comments within thirty days of receipt. 17. At a hearing on 17 December 2003 attended by the representative of the claimants in the initial proceedings, the Senate of the Supreme Court quashed the judgment and remitted the case to the Riga Regional Court for fresh consideration. The Senate recognised that there was nothing in the case file to suggest that A.S. had owned the contested property. 18. In January and March 2004 the Bureau for the Prevention and Combating of Corruption (“the KNAB”) asked the Prosecutor General’s Office to initiate proceedings to reclaim the contested property from the applicants. 19. The fifth applicant entered into various transactions with the contested property. 20. On 15 and 16 December 2003 part of the property was for a total amount of 7,000 Latvian lati (LVL) (about 10,000 euros (EUR)) sold to A.V. who on 26 and 29 March 2004 sold it for the same amount to the third applicant, the limited liability company Balt Invest Group, the coowner and representative of which at the material time and until February 2007 was A.V. himself. On 23 April and 7 May 2004 the third applicant was registered as the owner of the property in the land register. 21. On 12 and 19 February 2004 the fifth applicant sold two other parts of the contested property to the sixth and fourth applicants respectively for about EUR 45,000 per each transaction. The purchase contract of 19 February 2004 provided, inter alia, that the seller, namely the fifth applicant, guaranteed that the property was not subject to any dispute, and that seller would be liable for any third party claims made in respect of the transaction. 22. On 27 February 2004 the fifth applicant sold another part of the property to K.K, who on 18 June 2004 sold it to the first applicant for about LVL 29,000 (about EUR 41,500). The purchase contract of 18 June 2004 provided, inter alia, that the seller guaranteed that the property was not anyhow encumbered. 23. On 27 April 2004 and on 16 September 2004 (with regard to the first and the third applicants) the Prosecutor General’s Office, acting on behalf of the Ministry of Finance, lodged a claim against the Jurmala City Council, the applicants, A.V. and the two other claimants in the initial proceedings. The Prosecutor General’s Office relied on the Senate’s judgment (see paragraph 17 above) and the request received from the KNAB (see paragraph 18 above). The claim stated that the second applicant and the two other claimants in the initial proceedings had no legal right of ownership over the contested property. The Riga Regional Court was asked to quash the decisions of Jurmala City Land Commission allocating the four plots of land (see paragraph 13 above). The Prosecutor General’s Office also asked for the relevant Land Registry records to be deleted and the rights of the State to the contested property to be recognised. 24. The claim was based on the section of the Civil Law regulating property claims, such as sections 1041, 1044 and 1063 (see paragraph 37 below). 25. On 30 May 2004 the Riga Regional Court decided to join the claim lodged by the Prosecutor General’s Office and the claim about the restoration of property rights (see paragraph 17 above). 26. On 9 September 2005 the Riga Regional Court dismissed the claim lodged by the Prosecutor General’s Office and upheld the decision recognising the second applicant and the two other claimants as owners of the contested property. 27. Both the Prosecutor General’s Office and the Jurmala City Council appealed against that decision. 28. On 22 June 2006 the Civil Division of the Supreme Court partly upheld the appeal lodged by the Prosecutor General’s Office. The court revoked the decisions of the Jurmala City Land Commission allocating the second applicant and the two other claimants the four plots of land, and ordered that the corresponding entries be deleted from the relevant Land Registry records. It established that the lower court had failed to address the fact that until 1937 the contested plots of land had been jointly owned by the former owner A.S. and seventy-six other individuals. Moreover, the joint ownership of the land had ceased after the passing of a decree in 1937, and after that date A.S. had not registered his title to the property with the Land Registry. The appellate court also dismissed part of the claim of the Prosecutor General’s Office in which it claimed that the State (represented by the Ministry of Finance) had ownership rights over the property in question. The plots of land were returned to Jurmala Municipality in order for it to finalise the land reform. 29. In relation to the applicants’ argument that they had all acted in good faith when acquiring their part of the contested property, the court at the outset noted that such criteria as the date of conclusion of a contested transaction and the nature of the infringed property rights have to be considered when assessing the protection of bona fide acquirers. The court also observed that after the second applicant had sold the contested property to the fifth applicant, the owner of which was the second applicant himself, all the transactions involving the contested property (see paragraphs 19-22 above) had been concluded after the Senate of the Supreme Court had revoked the final judgment in the initial proceedings. It also noted that K.K. had sold his respective parts of the property to the first applicant despite the fact that the civil proceedings initiated by the Prosecutor General’s Office had been pending. On those grounds and on the basis of section 1055 of the Civil Law (see paragraph 38 below), the applicants were not recognised as having acted in good faith. 30. The first, second, fourth and fifth applicants lodged an appeal on points of law. Following an application dated 14 August 2006, the third applicant joined the cassation appeal lodged by the first applicant. The sixth applicant did not lodge an appeal on points of law. 31. The five appellants complained, inter alia, that the State did not have sufficient interest in the property to justify the fact that the Prosecutor General’s Office had lodged a property claim on behalf of the State. 32. By a final decision of 17 January 2007, the Senate of the Supreme Court upheld in essence the appellate court’s judgment. With respect to the property claim brought by the Prosecutor General’s Office, the Senate noted that even if the State’s property rights had not been infringed, that did not prevent the court from finding that the second applicant and the two other claimants in the first set of proceedings had had no rights to the contested property. The Senate also upheld the appellate court’s conclusions about the applicants acting in bad faith. 33. After the above judgment took effect and at Jurmala Municipality’s request the applicants’ entries were deleted from the relevant Land Registry records. 34. On 16 October 2012 the third applicant was declared insolvent and the Riga District Court appointed E.K. as its insolvency administrator who replaced the former board members of the third applicant. On 19 February 2013 the insolvency proceedings were terminated and on 14 May 2013 the third applicant was deleted from the company register. 35. On 12 April 2013 A.V., who until June 2012 had been a board member of the third applicant, on its behalf designated a legal representative in the proceedings before the Court (see paragraph 2 above). | 0 |
test | 001-139931 | ENG | RUS | CHAMBER | 2,014 | CASE OF GORELOV v. RUSSIA | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 5. The applicant was born in 1965 and lived until his arrest in the village of Sushzavod, in the Novosibirsk Region. He is serving a sentence in a correctional colony in the town of Raisino, in the Novosibirsk Region. 6. Arrested in August 2007 on suspicion of aggravated robbery, the applicant was convicted on 28 January 2008 and sentenced to nine years and three months’ imprisonment. On 23 November 2011 the applicant was also convicted of aggravated fraud and sentenced to another three years. 7. On 7 February 2011 a blood test revealed that the applicant had contracted HIV. Tests conducted on previous occasions, in particular in 2009 and 2010 when the applicant was transferred to correctional colony no. 13, medical penal facility no. 10 and a temporary detention facility in the town of Barnaul, were all negative. 8. Believing that he had contracted the virus during medical procedures in detention facilities, the applicant lodged an action with the Berdsk Town Court, seeking compensation from the detention facility authorities for causing him to become HIV-positive. 9. On 16 June 2011 the Novosibirsk Regional Court, acting as a court of final instance, disallowed the action, having found that the applicant had not complied with the procedural requirements for lodging it. He did not name a public official who could have been responsible for his having contracted the virus, he did not indicate his home address, he did not pay a court fee, and so on. 10. The applicant sent a complaint to the Investigations Department of the Novosibirsk Region, asking for criminal proceedings to be instituted against detention facility personnel. He argued that he had become HIV-positive as a result of negligence on the part of the prison medical staff. 11. On 5 July 2011 a deputy head of the Department readdressed the complaint to the Novosibirsk Regional Prosecutor. 12. On 13 July 2011 the first deputy prosecutor of the Novosibirsk Region returned the applicant’s complaint to the Investigations Department of the Novosibirsk Region, informing it that there were indications of a possible criminal offence and that a thorough inquiry into the matter should be conducted. 13. Ten days later the Investigations Department redirected the applicant’s complaint to the head of the Novosibirsk regional police department, seeking an inquiry into the circumstances causing the applicant to become HIV-positive. 14. In March 2012 the applicant received a letter from a Berdsk deputy prosecutor, informing him that his request for institution of criminal proceedings against detention officers had been examined and refused on 18 June 2011. The applicant lodged a claim with the Berdsk Town Court, complaining that the investigating authorities had failed to look closely into what had caused him to contract the virus. On 2 October 2012 the Town Court discontinued the examination of the complaint, noting that on 2 October 2012 the decision of 18 June 2011 had been overturned by the investigation authorities as premature and a new inquiry had commenced. The outcome of those proceedings is unknown. 15. In December 2012 specialists from the Hygiene and Epidemics Centre of the Federal Service for Execution of Sentences conducted an inquiry for the purpose of establishing the transmission mode of the applicant’s HIV infection. They studied the applicant’s medical record and interviewed him. Having observed that the applicant had never travelled abroad, had not been a blood, tissue, organ or sperm donor or recipient, had not used drugs, had not had any sexual contacts in detention, and had not suffered from any sexually transmitted diseases apart from the HIV infection, the specialists stated that it was impossible to establish the exact way in which the applicant had contracted the virus. At the same time, they noted that in February 2009 and in 2010 the applicant had undergone invasive medical procedures in penal facilities. Those procedures were performed in response to the applicant’s self-harming. In addition, the large number of tattoos on the applicant’s body did not escape the attention of the specialists. They described the tattoos as “home-made”, and stated that the most recent one had been done in 2008. 16. The applicant submitted that after he had been diagnosed as HIV-positive his treatment had been extremely erratic and insufficient. His antiretroviral therapy included two drugs, Combivir and Stocrin. When the treatment was amended with another drug the applicant’s condition deteriorated; he began to experience loss of consciousness, dizziness and nausea. The applicant submitted that the change in the treatment had been authorised by physicians from colony no. 10. An infectious diseases specialist had not been consulted. When he was transferred to colony no. 13 the applicant asked for his previous chemotherapy regime to be reinstated, given the extremely serious side effects he was experiencing following the change in the treatment regime; CD4 cell counts were showing rapid growth in the viral load. 17. The Government provided the Court with a copy of the applicant’s medical record drawn up after his detention at the police station in the town of Cherepanovo on 16 August 2007. On the following day a blood test taken for HIV infection was negative. HIV tests on 24 August and 14 December 2007, 25 September 2008 and 26 February 2009 all produced the same result. Each test was preceded by a consultation with a prison doctor. A report was drawn up as a result. The reports showed that the applicant had denied using drugs, having sexual relations, including homosexual sexual contacts, and had had no blood transfusions. 18. On 24 February 2009 the applicant complained to a prison surgeon of severe stomach pain. He explained that on 28 December 2008 he had swallowed a long nail. An X-ray examination of the applicant’s abdominal area showed two metal nails 11.6 and 8 centimetres long respectively. He was immediately admitted to the surgical department of the prison hospital. Subsequent examinations showed no urgent need for surgery; the applicant also refused surgical treatment. After examination and treatment in the hospital the applicant was released on 18 March 2009 with one nail remaining in his body. He was to stay under supervision in the colony medical unit. 19. The applicant underwent clinical blood tests in October 2009. No HIV test was carried out on that occasion. 20. In January 2010 the applicant broke his arm and was treated in the colony medical unit with the assistance of a surgeon from the Ubinsk hospital. 21. On 16 March 2010 the applicant refused to have an HIV test. 22. In early February 2011 the applicant applied for medical assistance, complaining of coughing blood, stomach pain and dizziness. He explained that he had swallowed a ten-centimetre-long metal wire as a way of protesting against the internal rules of the colony. The applicant received treatment and was seen by a surgeon from the Iskitima town central hospital. An X-ray performed several days later showed that the wire had exited the applicant’s body. The applicant nevertheless stayed in the hospital for almost a month. A test performed in the hospital on 7 February 2011 showed that the applicant was HIV-positive. Another test on 18 February 2011 confirmed that result. 23. Following the tests the applicant consulted a psychiatrist, who explained to him the nature of the HIV infection and the methods for treating it, and warned him that knowingly transmitting it was a criminal offence. He was also told about the necessity to adhere to the antiretroviral treatment which he had not yet started receiving, and was informed of the negative consequences of stopping the treatment. The doctor also questioned the applicant about how he might have been infected with the virus. The applicant denied having sexual relations and using drugs. The doctor noted the large number of tattoos on his body. The final diagnosis given to the applicant on his release from the hospital on 15 March 2011 was HIV infection in the third stage and sub-clinical form. The doctor recommended clinical blood and urine tests, biochemical blood analysis, CD4 and CD6 cell counts, consultations with an infectious diseases specialist, and close medical outpatient supervision. 24. On 20 April 2011 the applicant cut his left forearm. A prison nurse treated the wound and made an entry in the applicant’s medical record noting her suspicion that the applicant had actually bitten his forearm and had broken the vein with his teeth. The applicant continued receiving treatment in the medical unit until the beginning of May 2011. 25. On 30 June 2011 the applicant was seen by a prison doctor, who repeated the recommendations given on 15 March 2011. 26. On 20 July 2011 another blood test confirmed the HIV infection. The applicant also tested positive for hepatitis C. 27. Between July and December 2011 the applicant was seen six times by a prison doctor following complaints of severe headaches, dizziness and nausea. He was treated for arterial hypertension. 28. In December 2011 the applicant was subjected to a number of immunological tests, including a CD4 cell count which showed slightly over 320 cells/mm3. On 21 December 2011 an infectious diseases specialist examined the applicant. Noting a decrease in the CD4 cell count and rapid growth of the viral load, the doctor recommended commencing antiretroviral therapy with Combivir, a fixed-dose combination of the drugs zidovudin (Retrovir), lamivudine (Epivir), and Stocrin (Ephavirenz). Another round of immunological testing was to be performed in a month. The doctor gave extensive information on the treatment, its schedule and its side effects. The applicant was again reminded about the negative consequences of stopping the treatment. The applicant signed a statement recording the main details of that consultation. 29. On 21 December 2011 the applicant started antiretroviral treatment. An immunological test performed on 12 January 2012 showed an increase in the viral load. The Government provided a record of the daily schedule showing the medicines taken by the applicant under the supervision of the prison nurses. 30. In January and February 2012 the applicant was seen at least once every few days by a prison doctor or nurse. In the months that followed regular medical consultations were continued. 31. Between 5 October and 28 November 2012 the applicant was in the clinical treatment ward of the prison hospital. He was given clinical blood and urine tests, visual examinations, biochemical blood analysis, chest X-rays and an electrocardiogram. He continued his chemotherapy regime, comprising antiretroviral drugs, hepatoprotectors, vitamins and antispasmodics. He was released from the hospital under active supervision by doctors from the colony medical unit. Recommendations also included the addition of two drugs, Kaletara and Fosfogliv, to the antiretroviral treatment, and immunological testing every six months. 32. When he returned to the colony the applicant complained to a prison doctor about the side effects of the new drugs, and requested in writing to be placed back on the previous treatment regime. A certificate issued by the colony director on 19 December 2012 showed that the treatment had been and was continuing to be maintained without any interruptions. The certificate also indicated that the applicant’s health had improved as a result of the antiretroviral treatment. 33. It appears from the applicant’s submissions that the most recent CD4 cell count was performed in 2013. | 1 |
test | 001-175143 | ENG | HRV | CHAMBER | 2,017 | CASE OF T.G. v. CROATIA | 3 | Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms) | Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 6. The applicant was born in 1974. 7. In February 2011, after holding a firearms licence and a hunting permit for about ten years, the applicant asked the S. Police Department (hereinafter: “the police”) to renew his firearms licence for hunting purposes. He did not live in Croatia but went hunting when he spent holidays there. 8. When submitting his request the applicant relied on a certificate of the Ministry of Health (Ministartsvo zdravstva Republike Hrvatske) attesting that he was healthy and thus capable of carrying firearms. 9. Following the applicant’s request the police carried out a background check. A report of 22 February 2011, available in the file, contains a finding of the police that the applicant had often been under the influence of alcohol when visiting Croatia. 10. On 18 August 2011 the applicant was summoned by the police to give a statement concerning the intention of a weapons commission not to renew his firearms licence. The applicant denied any alcohol abuse and stated that he had been a hunter for several years and that, if necessary, he could undergo any test concerning his health and the alleged drinking problem. 11. In a further written statement dated 19 August 2011 the applicant contended that hunting was his hobby and that his membership of a hunting association was related to his social status. He denied any allegations of alcohol abuse and argued that there were no justified reasons for a refusal to renew his firearms licence. 12. On 23 August 2011 the applicant made the same objections through a lawyer. He stressed that his request for renewal of the firearms licence could not be refused merely because somebody had allegedly said that he was a drinker. 13. On the same day the police dismissed the applicant’s request for renewal of his firearms licence and ordered him to hand over his weapons on the grounds that a police inquiry had shown that he had a problem of alcohol abuse. 14. The applicant challenged this decision before the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, hereinafter “the Ministry”), arguing that he had been falsely accused by some neighbours and that there was no evidence of any drinking problem. He also stressed that hunting allowed him to see his friends, and that those who had made the allegations against him did not really know him. 15. On 11 October 2011 the Ministry ordered the police to produce a new assessment of the background check on the applicant, on the grounds that the report of 22 February 2011 (see paragraph 9 above) had not been substantiated with the relevant evidence. 16. On 9 November 2011 the police produced a new report on the background check on the applicant. The report, which was available in the file, provided further details on the applicant’s alleged alcohol abuse, which had been confirmed by his neighbours in Croatia. The report explained that all the relevant details concerning the sources of this information were classified as confidential information. 17. On 12 December 2011 the Ministry dismissed the applicant’s complaints, on the grounds that the documents from the case file suggested that he had a problem of alcohol abuse. 18. On 6 February 2012 the applicant lodged an administrative action in the Administrative Court challenging the Ministry’s decision. He contended that the refusal to renew his firearms licence had been based on mere insinuations, and that there had been no relevant evidence to support the findings of the police. In particular, he contended that he had never been registered as a person with a problem of alcohol abuse and he had never been convicted of an offence related to the abuse of alcohol. In his view, the police based its conclusion only on the basis of gossips of his neighbours in Croatia. 19. On 14 April 2012 the applicant asked the police to disclose the relevant reports containing the allegations against him, in particular the identity of those who had seen him under the influence of alcohol and the date and place when that had happened. On 1 March 2012 he received a reply that the information which he requested could not be disclosed since it was confidential (see paragraph 16 above), as provided under the relevant domestic law (see paragraphs 31-32 below). 20. On 26 April 2012 the Administrative Court held a hearing at which it heard the parties’ arguments. The applicant’s representative stressed that the police had failed to produce any credible evidence justifying the refusal to renew the applicant’s firearms licence. He also considered that it was not clear on which grounds the police had dismissed the applicant’s request. The Ministry’s representative explained that further details of the applicant’s background check, in particular the names of individuals from whom the relevant information had been obtained, were confidential as provided under the Confidentiality of Information Act. 21. As the parties did not have any further proposals for the examination of evidence, the Administrative Court concluded the proceedings and scheduled a hearing for the delivery of the judgment for 4 May 2012. 22. On 27 April 2012 the Administrative Court found that the judgment could not be delivered,, and ordered the Ministry to provide the confidential case file containing the details of the information on the applicant’s background check. It explained that the file at issue would be inspected by the judges and would not become part of the Administrative Court’s case file. 23. At a hearing on 17 May 2012 the Administrative Court examined the confidential file of the police without the presence of the parties. Afterwards, in the resumed hearing in the parties’ presence, the applicant’s representative reiterated his arguments that the applicant did not have a drinking problem. He did not seek examination of further evidence. 24. On 23 May 2012 the Administrative Court dismissed the applicant’s administrative action and upheld the decisions of the administrative bodies refusing to renew the applicant’s firearms licence. It explained that it was satisfied from the examination of the confidential reports that the reasons for the police’s refusal to renew the applicant’s firearms licence were well founded. It also held that the medical certificate attesting that the applicant was healthy and capable of carrying firearms did not call these findings into question, as that was only one element in the assessment of an individual’s suitability to be granted a firearms licence. The relevant part of the Administrative Court’s decision reads: “By examining the classified file of the defendant the court ... established that the police officer’s conduct, while searching for and collecting information from citizens, ... was in accordance with the By-law on the conduct of the police in the procedure for issuing a licence for the procurement of weapons to a natural person ... and, based on data and information collected from interviewed citizens, found that the plaintiff is prone to common and excessive alcohol abuse, which indicates a possibility of weapons abuse. ... Consequently, the plaintiff’s claim that the defendant wrongly applied the substantive law, is unfounded, while the plaintiff’s objection that the medical certificate is sufficient evidence showing that the defendant wrongly determined the facts of the case was not accepted by this court because the medical fitness for possessing and carrying weapons which is established through a certificate of medical fitness is only a special requirement for the weapons acquisition permit to natural persons within the meaning of section 10 paragraph 3(1) of the Weapons Act, while the defendant acting in accordance with the [above-cited] By-law ... established that the plaintiff does not meet the requirement of section Article 10(5) of the Weapons Act, as one of the general requirements which natural persons need to meet in order to be issued a firearms licence.” 25. The applicant challenged this decision before the Constitutional Court (Ustavni sud Republike Hrvatske), complaining that he had been denied access to the evidence containing allegations against him and that therefore he had been left without any opportunity to challenge those allegations. He also argued that his right to respect for his private life had been breached by the unjustified refusal to extend his firearms licence, which prevented him from hunting. In this connection he explained that he had been a hunter for over ten years, and that hunting was his way of maintaining contact with his friends. 26. In support of his constitutional complaint the applicant submitted a list of signatures of his neighbours attesting that he did not have a problem of alcohol abuse. He also submitted a medical certificate indicating that he had no problem of alcohol abuse. 27. On 6 February 2014 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded. It explained that it was primarily the function of the relevant authorities to examine the facts and apply the relevant law and that it was not its function to deal with alleged errors of law or fact, in so far as they had not infringed human rights and freedoms guaranteed under the Constitution. The Constitutional Court held that since the applicant had had access to the police reports on his background check, which contained details for dismissing his request (see Bakırcı the reports referred to in paragraphs 9 and 16 above), the fact that further details on which those report had been based, including personal details about individuals who had provided information to the police, had not been disclosed to him did not infringe any of his rights. 28. The decision of the Constitutional Court was served on the applicant’s representative on 18 February 2014. | 1 |
test | 001-159562 | ENG | SRB | ADMISSIBILITY | 2,015 | MIKULOVIĆ AND VUJISIĆ v. SERBIA | 4 | Inadmissible | Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 1. The applicant in the first case, Mr Boško Mikulović, is a Serbian national, who was born in 1955 and is currently serving a prison sentence in Zabela Prison near Požarevac in Serbia. He is represented before the Court by Mr Z. Ilijevski, a lawyer practising in Kragujevac, Serbia. 2. The applicant in the second case, Mr Predrag Vujisić, is a Serbian national, who was born in 1967 and is currently serving a prison sentence in Padinska Skela Prison near Belgrade in Serbia. He is represented before the Court by Mr M. Kovačević, a lawyer practising in Niš, Serbia. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 17 December 1992 the applicant committed a murder. 5. On 20 June 2003 the Kruševac District Court (Okružni sud u Kruševcu, hereinafter “the District Court”) imposed a forty-year prison sentence for murder on the applicant, under the Criminal Code of Serbia. 6. On 20 November 2003 the Supreme Court of Serbia (Vrhovni sud Srbije) quashed that judgment and remitted the case to the first-instance court for retrial. 7. On 21 May 2004 the District Court again sentenced the applicant to forty years’ imprisonment for murder. 8. On 4 November 2004 the Supreme Court of Serbia quashed that judgment and remitted the case to the first-instance court for retrial. 9. On 5 August 2005 the District Court again sentenced the applicant to forty years’ imprisonment for murder, finding as follows: “The court did not accept the defence’s argument that, when it comes to the question of the applicable law, the law which was in force at the time of the commission of the crime ought to have been applied, as the Amendments to the Criminal Code of Yugoslavia (Zakon o izmenama i dopunama Krivičnog zakona Jugoslavije) had entered into force on 17 November 2001, before the accused was sentenced ... It is clear that with the entry into force of these amendments, the death penalty and a twenty-year prison sentence can no longer be imposed. Furthermore, the Amendments to the Criminal Code of Serbia (Zakon o izmenama i dopunama Krivičnog zakona Republike Srbije) ..., which entered into force on 9 March 2002, removed Article 2 of the Code and as a result, a forty-year prison sentence is prescribed for the crimes for which the death penalty had been previously prescribed ... it is therefore clear that upon entry into force of the Amendments to the Criminal Code of Yugoslavia (17 November 2001), the death penalty and the sentence of twenty years’ imprisonment were removed from the range of criminal sanctions, and that the Criminal Code of Serbia of 9 March 2002 prescribed a forty-year prison sentence for that particular crime.” 10. On 23 November 2005 the Supreme Court of Serbia upheld that judgment. 11. On 19 May 2006 the Supreme Court of Serbia, in another formation, changed the legal classification of the applicant’s offence to aggravated murder and upheld the remainder of the judgment. 12. On 28 May 2007 the Supreme Court of Serbia rejected an appeal on points of law lodged by the applicant. The applicant received that decision on 8 August 2007. 13. On 5 October 2000 the applicant committed a murder. 14. On 22 August 2005 the Vranje District Court (Okružni sud u Vranju) sentenced the applicant to forty years’ imprisonment for murder, under the Criminal Code of Serbia. 15. On 22 December 2005 the Supreme Court of Serbia quashed that judgment and remitted the case to the first-instance court for retrial. 16. On 13 November 2006 the Vranje District Court again sentenced the applicant to forty years’ imprisonment for murder. 17. On 25 September 2007 the Supreme Court of Serbia upheld that judgment. 18. On 5 September 2008 the Supreme Court of Serbia, acting as a third-instance court, upheld the judgment. In its reasoning on the question of the applicable law the Supreme Court found that the lower courts had correctly applied the more lenient law by sentencing the applicant to a forty-year prison sentence. The Supreme Court stated: “... the Criminal Code of Serbia prescribed the death penalty for the crime in question, and the death penalty, contrary to the arguments in the appeal, had not been abolished at any stage during which said law had been in force ... [T]herefore, the [new] Criminal Code should be applied with regard to the crime in question as the more lenient law, which it indeed is, as a prison sentence from thirty to forty years is more lenient than the death penalty ...” 19. On 25 March 2010 the Supreme Court of Cassation rejected an appeal on points of law lodged by the applicant. The Supreme Court repeated that the death penalty remained in the Criminal Code of Serbia during the period between 9 November 2001 and 1 March 2002, when it had been replaced by a forty-year prison sentence. In its reasoning the said Court stated: “... the chronology of the changes of the criminal law points to an evident continuity in replacing the death penalty with the prison sentences ...” 20. Having been served with the Supreme Court of Cassation’s judgment the applicant lodged a constitutional appeal with the Constitutional Court of Serbia. Relying on Article 7 of the Convention he complained that the most lenient criminal law provision had not been applied. The applicant maintained that during the period between 9 November 2001 and 1 March 2002 the courts could only have sentenced him to a fifteen or twenty years’ imprisonment and that, therefore, the law in force during that time had been the most lenient. 21. On 7 February 2013 the Constitutional Court of Serbia rejected the applicant’s constitutional appeal. In its reasoning, the Constitutional Court referred to the detailed reasoning in its decision concerning the same issue in another case involving different appellants (Už. 969/09, see paragraph 33 below). 22. At the time the applicants committed the crimes in question, the general provisions of the Federal Criminal Code defined which penalties were prescribed on both republic and federal levels. The death penalty was prescribed as one of possible penalties for murder in the Criminal Code of Serbia. 23. The Constitution of the Federal Republic of Yugoslavia (Official Gazette of the Federal Republic of Yugoslavia no. 1/92) was in force from 27 April 1992 until 4 February 2003. 24. The relevant provision of the Constitution reads as follows: Human life is inviolable. The death penalty cannot be imposed for crimes proscribed in the federal criminal code. “ 25. The Constitution of the Republic of Serbia (Official Gazette of the Republic of Serbia no. 1/90) was in force from 28 September 1990 until 8 November 2006. 26. The relevant provision of the Constitution reads as follows: Human life is inviolable. The death penalty can exceptionally be prescribed and imposed only for the most heinous forms of severe criminal acts. ” 27. The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, and in Official Gazette of the Republic of Serbia no. 39/03) was in force until 1 January 2006. 28. The relevant provisions of the Code provided as follows: No punishment or other criminal sanction may be imposed on anyone for an act which, prior to being committed, was not defined by law as a criminal act, and for which a punishment has not been prescribed by statute. 1. The law that was in force at the time a criminal act was committed shall be applied to the person who has committed the criminal act. 2. If the law has been altered one or more times after the criminal act was committed, the less severe law in relation to the offender shall be applied. ... Provisions of the General Part of this Code are applicable to all criminal acts defined in the laws of the federation, republics and autonomous provinces. ... The following punishments may be imposed on the perpetrators of criminal acts: 1. capital punishment; 2. imprisonment; 3. a fine; 4. confiscation of property. ... (1) The term of imprisonment may not be shorter than fifteen days nor longer than fifteen years. (2) The court may impose imprisonment for a term of twenty years for criminal acts eligible for the death penalty.” 29. On 17 November 2001 Article 34 of this Criminal Code was amended and the death penalty was deleted from the list of available penalties. It was amended to read: (1) The term of imprisonment may not be shorter than thirteen days nor longer than fifteen years. (2) A prison sentence of forty years may be prescribed for the most serious criminal acts or for the most heinous forms of severe criminal acts. This sentence may only be prescribed as an option alongside a prison sentence of fifteen years [it cannot be a stand-alone penalty] and may not be imposed on a person who was under the age of twenty-one at the time of commitment of the criminal act concerned.” 30. The Criminal Code of the Socialist Republic of Serbia 1977 (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force until 31 December 2005. 31. The relevant provisions of the Code provided as follows: Whoever causes the death of another shall be punished with imprisonment for a minimum of five years. Imprisonment for a minimum of ten years or the death penalty [is prescribed for] whoever: 1) causes the death of another in a cruel or heinous manner; 2) causes the death of another by callous violent behaviour; 3) causes the death of another and with premeditation endangers the life of a third person; 4) causes the death of another for gain, to commit or conceal another offence, for callous revenge or other base motives.” 32. On 9 March 2002 this Criminal Code was amended and the death penalty was replaced with a forty-year prison sentence. 33. On 24 March 2010, in a similar case to that of the applicants, the Constitutional Court rejected a constitutional appeal of D.N. (Už. 969/09). In its decision, the Constitutional Court, inter alia, stated: “Since the death penalty was prescribed in the Criminal Code of the Republic of Serbia continuously until 1 March 2002, it also was in force at the time of the commission of the crime in question, and was also prescribed for the crime the applicant had been accused and convicted of, the Constitutional Court found that the [new] Criminal Code was without doubt more lenient for the appellant, as it did not prescribe the death penalty as the heaviest penalty in the system of criminal sanctions. According to the Constitutional Court’s assessment, any prison sentence is more lenient than the death penalty, because life is of fundamental value to each human being, and it is subject to special protection in both the constitutional and criminal legal spheres. For all the above mentioned reasons, the Constitutional Court finds the rights of the appellant were not violated as guaranteed by the provisions of Article 34 § 2 of the Constitution.” 34. On 25 January 2008 the Supreme Court of Cassation of Serbia (Kzp Ok 3/07) took the view that the death penalty had ceased to be applicable in the republic upon the entry into force of the Amendments to the Criminal Code of Serbia of 9 March 2002, and that this penalty was abolished at that time and replaced with a forty-year prison sentence. The court held: “... in the Criminal Code of Serbia, the death penalty continued to be in force during the period between 9 November 2001 and 1 March 2002 when, by the mentioned amendments, it was definitively abolished and replaced with a forty year prison sentence.” | 0 |
test | 001-142678 | ENG | UKR | ADMISSIBILITY | 2,014 | REPRESENTATION OF THE UNION OF COUNCILS FOR JEWS IN THE FORMER SOVIET UNION AND UNION OF JEWISH RELIGIOUS ORGANISATIONS OF UKRAINE v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano | 1. The applicants are the Representation of the Union of Councils for Jews in the Former Soviet Union (“the first applicant organisation”) and the Union of Jewish Religious Organisations of Ukraine (“the second applicant organisation”). According to the applicants, the first applicant was established in 2000 "with the purpose of representation of the interest of the Union of American Councils for Jews in the Former Soviet Union and for monitoring the situation regarding observance of human rights, facilitation of harmonisation of interethnic and inter-religious relations". The second applicant "is a religious organisation" aimed at "assistance to Jewish religious organisations in the protection of religious and other human rights". They were represented before the Court by Mr M. Sheykhet. 2. 3. The applicant organisations alleged that several ancient Jewish cemeteries on the territory of Ukraine were in a state of neglect, in breach of a bilateral agreement of 4 March 1997 between the United States of America and Ukraine “on the protection and preservation of cultural heritage” and of the Ukrainian laws on cultural heritage. The applicant organisations instituted numerous proceedings requesting the courts to reestablish the boundaries of those cemeteries and to ban all construction on the land concerned. 4. By a letter of 16 November 1998 the Volyn Region Natural History Museum informed the Head of the Volodymyr-Volynskyy Town Council that in October 1997 the foundations of an ancient building near the Kosmos cinema had been examined. It was established that these were the vestiges of an 18th-19th century construction over the tomb of a prominent rabbi. 5. In May 1999 the first applicant organisation asked the Head of the Volodymyr-Volynskyy Town Council to prohibit any common use of the land on which the former Jewish cemetery was situated and to forbid the privatisation of any buildings that already existed on that territory. It proposed that the Jewish community would maintain the land and would not carry out any new burials on the site. 6. In reply, the town council informed the Chief Rabbi of Ukraine that it was favourable to the above proposal. It noted, however, that there were buildings on the territory of the former Jewish cemetery, as well as some unfinished constructions. It was also noted that the council had informed the first applicant organisation’s representative about the existing problems and proposals, but that no compromise had been reached. 7. The photographs and maps submitted to the Court by the applicant organisations show that there is a park and some constructions on the land in question (garages, a block of flats, an unfinished multi-storey construction, a cinema, a playground, a sports ground and a school). 8. According to the information submitted by the applicant organisations, the last burial at the cemetery took place in 1939. There are around twenty tombstones within the cemetery; the majority of them are not in their original places. The tombstones, however, are not visible on the photographs submitted. 9. On 8 April 2002 the Volyn Regional Commercial Court allowed the applicant organisations’ claim against the Volodymyr-Volynskyy Town Council to have the historic boundaries of the Jewish cemetery reestablished as they existed before the Second World War in the town of Volodymyr-Volynskyy. 10. On 5 June 2002 the Lviv Commercial Court of Appeal amended that decision. The court held that the applicant organisations had requested only the establishment of the cemetery’s historical boundaries and therefore the boundaries of the cemetery that existed at the time of the German occupation during the Second World War should be determined in accordance with the relevant technical documentation. There is no information about the enforcement of that decision. 11. Following a complaint lodged by the applicant organisations against the Volodymyr-Volynskyy Town Council, on 17 December 2002 the Lviv Commercial Court of Appeal banned all construction within the historic boundaries of the ancient Jewish cemetery. 12. On 13 February 2003 the bailiffs’ service terminated the enforcement proceedings in this case, since the town council had informed it that there was no construction on the site. On 29 October 2003 the Lviv Commercial Court of Appeal quashed that decision. On 10 January 2004 the same court informed the bailiffs’ service that the decision of 17 December 2002 should be understood as banning all construction works by the council. The council was also not allowed to issue any construction permits. It appears that in 2004 the enforcement proceedings were again terminated. The applicant organisations challenged the termination decision in the court. This Court has not been given any further information about the developments in these proceedings, despite an explicit request to that effect, 13. The applicant organisations also challenged in the courts a decision of 1974 to adopt a general construction plan for Volodymyr-Volynskyy and a decision taken in 1986 to construct an administrative building for the communist party on a certain plot of land. The courts rejected those claims as time-barred. 14. It appears from the documents submitted by the applicant organisations that they also instituted other court proceedings. However, it is impossible to establish, on the basis of the materials in the file, the subject matter of those proceedings. For example, the applicant organisations challenged a decision of the executive committee of the Volodymyr-Volynskyy Town Council of 17 August 2001. It appears from the decision of 1 December 2003 of the Lviv Commercial Court of Appeal that by a decision of 7 August 2003, the Volyn Regional Commercial Court had left the applicant organisations’ claim unexamined. The applicant organisations did not provide any further details about those proceedings (the subject matter of the council’s decision, the reasons for leaving the claim without consideration, and whether they appealed against the decision of 1 December 2003). 15. It follows from a letter of 13 December 2004 submitted by the applicant organisations to the Minister of Justice, the Supreme Court of Ukraine and to other State bodies that at least eight sets of court proceedings were instituted by the applicant organisations in respect of the cemetery in Volodymyr-Volynskyy. The applicant organisations stated that at the end of 2004, six of those sets of proceedings were still pending. 16. In particular, on 25 May 2005 the Volyn Regional Commercial Court terminated the proceedings in which the applicant organisations were seeking the cancellation of the Volodymyr-Volynskyy Town Council’s decision on the reconstruction of a certain building. The court held that the building had already been reconstructed and that fifty-two people had bought apartments in it. The court further held that it was not competent to examine such claims. There is no information as to whether that decision was appealed against. 17. On 24 May 2006 the Higher Commercial Court of Ukraine upheld the lower courts’ decisions that the applicant organisations’ claim, by which they had challenged the contract between the town council and a private party for the sale of an unfinished building, was not within the jurisdiction of the commercial courts. 18. By a final decision of 24 January 2007 the Higher Administrative Court of Ukraine upheld the lower courts’ decisions to reject the applicant organisations’ claim to have the historic boundaries of the Jewish part of Yanovskyy cemetery in Lviv re-established. The courts held that the documents submitted by the applicant organisations (including 19th century land-sale contracts and archive maps) could not serve as a legal basis for establishing the historic boundaries of the cemetery with a view to its further preservation, since streets and buildings were now situated on part of the land. 19. The applicant organisations did not submit a copy of their claim, copies of the appeals lodged by them or a copy of the first-instance court decision taken in those proceedings. 20. By a final decision of 6 March 2007 the Higher Administrative Court of Ukraine upheld the lower courts’ decisions rejecting a request lodged by the applicant organisations to re-establish the historic boundaries of the ancient Jewish cemetery in Lviv. The applicant organisations claimed that before the 1950s there had been a cemetery on a plot of land indicated by them. The court held that there were no tombstones on the land indicated by the applicant organisations. 21. The applicant organisations did not submit copies of their claims or of the appeals lodged by them within those proceedings. 22. By a final decision of 14 February 2007 the Higher Administrative Court of Ukraine refused to consider the applicant organisations’ appeal in cassation against the lower courts’ refusals to re-establish the historic boundaries of the Jewish cemetery in the town of Drogobych. The court held that as the case had been considered by the lower courts under the commercial-law procedure, the Higher Administrative Court had no jurisdiction to examine the applicant organisations’ appeal in cassation. 23. Apart from a copy of that decision, the applicant organisations submitted only a copy of a decision of the Lviv Commercial Court of Appeal. Copies of all other documents (claims, appeal, and court decisions) are missing. 24. By a final decision of 11 May 2010 the Higher Commercial Court of Ukraine upheld the lower courts’ decisions rejecting as unsubstantiated the applicant organisations’ claim against the failure of Kolomyya Town Council and two companies to ban any construction and to order the land boundary survey to re-establish the historic boundaries of the Jewish cemetery in the town of Kolomyya. In particular, the applicant organisations had complained that a petrol filling station had been constructed on land on which a cemetery had been situated. 25. The courts found that in 1997 the executive committee of a local council had issued permission for a mobile gas station to be installed on the land in question. An expert examination held in 2005 established that it was impossible to conclude whether the land in question was part of an ancient Jewish cemetery. In 2007 the same body allowed a private company, B., to build a permanent gas station on that plot, which the company did. The applicant organisations did not ask to be given the land in question. 26. The Higher Commercial Court noted that the applicant organisations had failed to substantiate in which way their rights had been breached and the legal basis for their claims. Moreover, it noted that the court decisions could not be based on “religious norms of Judaism”. 27. The applicant organisations did not submit copies of the claims and appeals which they had lodged in that case. | 0 |
test | 001-161942 | ENG | ROU | CHAMBER | 2,016 | CASE OF GUȚĂ TUDOR TEODORESCU v. ROMANIA | 3 | Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. On 8 April 1998 the applicant requested the Bucharest Commission for Implementing Law no. 9/1998 (the County Commission) to award compensation for a property owned by his ancestors and taken over by the Bulgarian State. On 15 December 2000 the Commission issued a decision proposing payment of compensation in the amount of ROL 2,013,957,441 (approximately EUR 88,000 at the time). 6. That decision, according to the law, had to be validated by a central commission within sixty days. As the Central Commission did not issue any decision, the applicant brought a court action aimed at obliging the Central Commission to act in accordance with the law. The applicant also asked for the amounts granted by the County Commission to be adjusted for inflation when payment was made. The applicant’s action was dismissed on 17 February 2002 by the Bucharest County Court, which held that the sixty-day deadline was not compulsory, but rather advisory. The court also held that the adjustment of the amounts granted was indeed prescribed by Article 8 § 3 of the law, but any adjustment was to be made at the time payment was actually made, once the Central Commission had ratified or otherwise the County Commission decision. 7. On 23 June 2003 the Bucharest Court of Appeal allowed the applicant’s claim, and ordered that the Central Commission issue a decision ratifying or otherwise the proposal made by the County Commission on 15 December 2000. The court held that the claim concerning the adjustment of the amounts granted as compensation was to be dealt with during the enforcement stage. 8. On 29 August 2003 the Central Commission ratified the County Commission decision of 15 December 2000. 9. The compensation, representing at that time approximately EUR 54,000, was paid to the applicant on 22 November 2003. 10. Dissatisfied with the decision of the Central Commission, on 13 December 2003 the applicant lodged a court action aimed at obtaining an adjustment of the initial amount to take into account inflation from the date on which it was established by the County Commission to the date of actual payment. 11. By a decision of 16 April 2004, the Bucharest County Court ruled in the applicant’s favour. The County Court established that in accordance with Article 8 § 2 of Law no. 9/1998, the amounts set by the County Commission had to be adjusted for inflation if they were not paid in the year they were awarded. 12. On 21 February 2005 the Bucharest Court of Appeal reversed the decision, and ruled that the applicant was not entitled to an adjustment for inflation. 13. The appellate court concluded that the County Court had interpreted the applicable law incorrectly, as the entitlement to adjustment for inflation had to be determined on the basis of the date when the Central Commission had ratified the decision of the County Commission. As the payment had been made uno ictu, and not in instalments, during the same year as the Central Commission took its decision, the applicant was not entitled to an adjustment for inflation. 14. It also concluded that the failure of the Central Commission to ratify the decision of the County Commission within sixty days could not represent a legal basis for the adjustment of the amount in question. | 1 |
test | 001-183373 | ENG | CZE | CHAMBER | 2,018 | CASE OF NOVOTNÝ v. THE CZECH REPUBLIC | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 5. The applicant was born in 1942 and lives in Batelov. 6. In 1965 he had a sexual relationship with a woman who gave birth to a daughter, Z., on 2 March 1966. 7. As the applicant denied that he was the father, Z.’s legal guardian brought proceedings on her behalf in the Jihlava District Court (okresní soud) for a declaration of paternity. 8. After giving birth to Z., but before initiating the aforementioned proceedings, the mother married another man. 9. On 23 April 1970 the District Court found that the applicant was Z.’s father and ordered him to contribute to her maintenance. 10. The court reached its finding after hearing evidence from several witnesses. It also had regard to documentary evidence and took into consideration the results of a blood test known as a “bio-hereditary test” (dědicko-biologická zkouška). In addition, it established that the applicant had had intercourse with the mother sometime between 300 and 180 days before Z.’s birth. In such cases, a presumption of paternity arose under Article 54 of the Family Code, unless there were clear grounds to rebut the presumption. Another man had also had intercourse with the mother at the crucial time, however, the blood test established that he was not the father. 11. The applicant lodged an appeal with the Brno Regional Court (krajský soud) and requested another expert opinion. The Regional Court denied the request because the facts had been proved to a sufficient degree. It eventually upheld the judgment of the District Court on 2 June 1970, which became final on 10 June 1970. 12. In 2011 the applicant requested that the Prosecutor General (Nejvyšší státní zástupce) challenge his paternity in court. By a letter of 21 June 2011 he was informed that the requirements of Article 62 of the Family Code to initiate such proceedings had not been met. Z., by that time an adult, did not want to challenge paternity, it was not in her interests and the applicant had not produced any expert evidence credibly disproving it. 13. On 29 February 2012 the applicant and Z. underwent a DNA examination. The resulting report of 19 April 2012 unequivocally confirmed that the applicant was not Z.’s father. 14. On 9 May 2012 the applicant submitted a new request to the Prosecutor General to challenge his paternity in court. 15. On 12 September 2012 the Prosecutor General informed the applicant that the determination of his paternity had been decided by the Jihlava District Court under Article 54 of the Family Code and that therefore the prosecution service could not initiate proceedings under Article 62 and 62a of the Family Code. The Prosecutor General only had that specific competence as regards statutory presumptions of paternity under Articles 51 § 1 and 52 of the Family Code. When paternity had been established by a judicial declaration under Article 54 of that Code and the judgment had come into legal force, as in the applicant’s case, the law did not provide for any possibility to challenge it. 16. Relying on his rights under Article 6 § 1 of the Convention, the applicant lodged a constitutional complaint (ústavní stížnost) against the Prosecutor General’s decision of 12 September 2012. He maintained that he had proved that he was not Z.’s biological father and requested that the Constitutional Court (Ústavní soud) order the Prosecutor General to initiate proceedings and challenge his paternity. He also argued that Articles 61 § 1 and 62 § 1 of the Family Code were unconstitutional. 17. On 13 December 2012 the Constitutional Court dismissed the applicant’s complaint. It noted that his paternity had been established by a judicial decision which had come into legal force and stated, inter alia, that the competence of the Prosecutor General could only apply if all the legal requirements had been fulfilled, which was not, however, the applicant’s case. | 1 |
test | 001-142186 | ENG | MDA | CHAMBER | 2,014 | CASE OF EUGENIA AND DOINA DUCA v. THE REPUBLIC OF MOLDOVA | 4 | Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos | 1. The case originated in an application (no. 75/07) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Ms Eugenia Duca and Ms Doina Duca (“the applicants”), on 27 December 2006. 2. In a judgment delivered on 3 March 2009 (“the principal judgment”), the Court held that there was a breach of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention on account of the upholding by the Supreme Court of Justice on 27 November 2006 of a revision request against a final judgment of 1999, in breach of the principle of legal certainty (Eugenia and Doina Duca v. Moldova, no. 75/07, 3 March 2009). As a result of that quashing the second applicant lost all of her shares (94.46%) in her company. 3. Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicants to submit, within three months of the date on which the judgment became final in accordance with Article 44 § 2 of the Convention, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach. 4. The applicants and the Government each submitted observations in respect of the just satisfaction. 5. In the meantime, after the adoption of the principal judgment by the Court, the Supreme Court of Justice reviewed its judgment of 27 November 2006 and quashed it on 26 October 2009. The Supreme Court also awarded the applicants compensation of MDL 35,000 (the equivalent of EUR 1,963) for the non-pecuniary damage suffered as a result of the abusive quashing of the judgment of 1999. 6. The judge elected in respect of Moldova, withdrew from sitting in the case (Rule 28 of the Rules of Court) after it had been notified to the Government. On 31 January 2009, the Government, pursuant to Rule 29 § 1 (a), informed the Court that they were content to appoint in his stead another elected judge and left the choice of appointee to the President of the Chamber. On 1 February 2009, the President of the Fourth Section appointed Judge Šikuta to sit in the case. This decision was confirmed by the President of the Third Section after Judge Grițco, the judge elected in respect of Moldova, also withdrew from sitting in the case. | 0 |
test | 001-162761 | ENG | TUR | CHAMBER | 2,016 | CASE OF BABAJANOV v. TURKEY | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Substantive aspect) (Iran);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Prompt information);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković | 10. The applicant was born in 1975 and lives in Turkey. 11. In 1999 the applicant fled from Uzbekistan to Tajikistan because of pressure from the police, who suspected him of anti-constitutional activities in connection with his alleged Islamic religious beliefs and practices. He feared, in particular, that if he stayed in Uzbekistan, he would face persecution from the State authorities, and would eventually be imprisoned and tortured like some of his fellow Muslim friends. In support of his allegation of the risk of ill-treatment in Uzbekistan, the applicant submitted a copy of a list of persons who had been charged with offences against the State. The list had been prepared by the Human Rights Centre “Memorial”, a non-governmental organisation based in Moscow, and included the applicant’s name. According to this document, the applicant was charged under Article 159 § 4 of the Uzbekistan Criminal Code (attempting to violently overthrow the State’s constitutional order). At the top of the document, it was explained that the list had been compiled on the basis of the “Bulletin on the Search for Criminals” prepared by the criminal investigation and counter-terrorism department of the Ministry of the Interior of Uzbekistan and published in Tashkent in May 2003. 12. From Tajikistan, the applicant went on to Afghanistan and Pakistan. In 2005 he arrived in Iran, where he settled in Zahedan. The applicant applied to the United Nations High Commissioner for Refugees (“the UNHCR”) in Zahedan for recognition as a refugee. He lived in Zahedan for two years without experiencing any major problems. In 2007, however, together with some other Uzbek asylum seekers who had left their country for the same reasons, the applicant decided to flee from Iran following deportation threats. He claimed that the threats had been a response to certain disagreements with the Iranian authorities over their living conditions. 13. On 18 November 2007 the applicant entered Turkey illegally through Van and went to Ankara to apply for refugee status at the UNHCR. Following a preliminary interview, the applicant was referred to the UNHCR office in Van. The Van office issued him with an asylum seeker certificate. Subsequently, he registered with the Van police headquarters and started the domestic temporary asylum procedure. Thereafter he was given a temporary residence permit until 24 September 2008 and was ordered to report to the police three times a week for signature. It appears that the other Uzbek asylum seekers who had fled Iran together with the applicant were granted similar certificates and permits after following the same procedural steps. 14. On an unspecified date the Van police sent a notice to a number of Uzbek families requiring them to appear at the police station on 12 September 2008. The notice stated that their attendance was required for the distribution of food rations and school stationery. 15. Although the applicant did not receive such a notice, at 2 p.m. on 12 September 2008 he went to the police station for signature, as part of his weekly routine. Once at the police station, some twenty-nine asylum seekers, including the applicant, were placed in detention. Their personal items, including identity documents, money and telephones, were confiscated. They were driven to the border at around 9 p.m. the same evening and forcibly deported to Iran. The applicant was allegedly illtreated and threatened by the police during deportation. 16. After crossing the border to Iran on foot, the Uzbek asylum seekers, including the applicant, were captured and held hostage by people smugglers, who demanded 5,000 United States dollars to spare their lives and to release them. The asylum seekers contacted some other Uzbeks who had managed to escape deportation from Turkey and obtained the ransom fee. The smugglers made them walk for three days to Yüksekova, a town close to the Iranian border of Turkey, where they were released. 17. After re-entering Turkey illegally, the applicant went back to Van together with the other Uzbek asylum seekers. They requested legal advice from the Van Bar Association, which, along with two Turkish non-governmental organisations, published a report on 28 September 2008 regarding the Uzbek asylum seekers’ collective expulsion. It was argued in the report, inter alia, that the expulsion of the Uzbeks by the Turkish State authorities, despite their valid residence permits, had had no legal basis. It was also alleged that the expulsion had been motivated by political considerations to improve relations with Uzbekistan, which had been strained following the acceptance by Turkey of members of Uzbek opposition groups, such as the applicant, as asylum seekers in recent years. 18. On 11 October 2008 a number of Uzbek asylum seekers, who had previously been deported to Iran on 12 September 2008, were collected from their homes by police officers from the Van police headquarters. The same evening, they were deported to Iran once again. The applicant, however, escaped this deportation by pure chance, as the police did not have his correct home address. 19. The deportation of the applicant and the other Uzbek nationals was brought to the attention of the national and international public through press releases from various NGOs and the UNHCR. In particular, seven human rights and refugee rights organisations, including Amnesty International, issued a press release in which they condemned the forced illegal deportation of the applicant and the other Uzbek nationals to Iran. Likewise, a Turkish parliamentarian issued a press release within the Parliament and criticised the removal as well as the existing refugee protection system in Turkey. 20. On an unspecified date the applicant’s representative sent letters to, inter alia, the Human Rights Commission of the Parliament of Turkey, the Human Rights Commission of the Van Governor’s office and the Ministry of the Interior. 21. On 26 November 2008 the head of the Human Rights Commission of the Parliament of Turkey replied to the applicant’s representative that the Ministry of the Interior had informed the Parliament, in a letter dated 11 November 2008, that the applicant had been deported to Iran, a safe third country, in compliance with the legislation in force. 22. In his reply dated 22 April 2009, in his capacity as head of the Human Rights Commission of the Van Governor’s office, the Deputy Governor of Van informed the applicant’s representative that the applicant and the other deportees had been removed to Iran in compliance with the legislation in force and that Iran was a safe third country where the applicant had lived before he had arrived in Turkey in 2007. 23. On 16 March 2010 the UNHCR Ankara Office sent a letter to the applicant’s representative, informing him that the UNHCR had learned that the applicant, along with a number of other Uzbek nationals, had been illegally deported to Iran and that the applicant’s asylum claim was under review. The UNHCR also informed the applicant’s representative that on 26 September 2008 they had sent a letter to the Turkish authorities requesting the latter to take the necessary measures to grant the applicant and other Uzbek nationals who had been deported on 12 September 2008 residence permits with a view to legalizing their status in Turkey pending the completion of the procedures with regard to their cases. 24. Since 2008, the applicant has been living in Turkey in hiding and his application for refugee status under the mandate of the UNHCR is still under consideration. On 4 December 2013 and 28 March 2014 he was interviewed by officers from the UNHCR’s Ankara office regarding his application for refugee status. He has not received any information from the Turkish authorities as to his request for asylum. The applicant cannot approach the Turkish authorities to apply for asylum or to obtain a temporary residence permit for fear of being deported to Iran, like the other Uzbek asylum seekers who were deported once again to Iran in October 2008. Moreover, he cannot appoint a lawyer to undertake the necessary legal and procedural actions on his behalf before the domestic authorities as he does not possess the necessary identity documents required to issue a power of attorney before a notary public. 25. When the applicant applied for asylum in Turkey in December 2007, he informed the authorities that he had been granted refugee status in Iran by the UNHCR. His application was registered and he was asked not to leave the city of Van. 26. On 14 February 2008 the applicant left Van and returned there on 26 August 2008. He subsequently repeated his asylum request. 27. On an unspecified date the applicant’s asylum request was assessed in the light of Article 33 of the Convention Relating to the Status of Refugees, the European Convention on Human Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the national legislation. He was subsequently deported to Iran, a safe third country, where he was recognised as a refugee by the UNHCR. According to a document signed by two police officers and one military officer, submitted by the Government, twenty-nine Uzbek and Afghan nationals, including the applicant, were deported on 12 September 2008. 28. According to the Government, the applicant was not deprived of his liberty. Moreover, his identity documents were not confiscated. 50. The applicant complained under Articles 3, 6 and 13 of the Convention that he had been unlawfully deported to Iran on 12 September 2008 without an individual assessment of his situation and claims, and whilst he was legally residing in Turkey, and that he had not been informed of the decision to deport him to Iran on 12 September 2008 and, thus, had had no effective domestic remedies to challenge it. 51. The Government submitted that the applicant’s claims were not substantiated. 52. The Court considers that this part of the application should be examined under Article 13 of the Convention alone. However, having regard to its reasoning which led it to conclude Article 3 of the Convention was breached in the present case, the Court finds nothing that would justify a separate examination of the same facts from the angle of Article 13 of the Convention. It therefore deems it unnecessary to rule separately on either the admissibility or the merits of the applicant’s complaints under this head (see M.D. and M.A., cited above, § 70). | 1 |
test | 001-164462 | ENG | POL | CHAMBER | 2,016 | CASE OF KURSKI v. POLAND | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1966 and lives in Gdańsk. 6. At the relevant time, the applicant was a member of the Polish Parliament and a member of the Law and Justice party. 7. On 8 May 2006 the applicant and several other politicians, experts and journalists, participated in a live television programme, Warto rozmawiać (“It’s good to talk”), shown on TVP2. The programme was also broadcast on TVP Polonia on two consecutive days. 8. During the programme the applicant took out a copy of Gazeta Wyborcza, a Polish daily newspaper and, pointing to particular pages, said: “I would like to show you the nature of the relationship between this media agreement (“uklad”) ... and the attacks on Law and Justice. I will show you Gazeta Wyborcza, which for the first seven pages, for example today, is a frenzied attack on Law and Justice. Out of modesty I will not mention that a horrible piece about me, full of lies, is on the first page. On the second page, a frenzied attack on Kaczyński and the Polish Families League. Here, “Students fear flogging”, etc. etc., “Radio Maryja miracles”. This is just obsessive propaganda. But let’s go further, to page thirty-five. And what do we see? We see an advertisement entitled “We have built one of the world’s biggest stock markets with the participation of Polish shareholders. We are proud of that.” This is an advertisement for the company J&S S.A.... So the paradox is that usually in newspapers they advertise washing powders, cosmetics, beers, or cars, that is, widely available consumer goods (powszechnego nabycia). This [company] is a monopolist. It does not need any advertising. This company imports most of the crude oil into Poland and drives billions of euros away from Poland to another company, which is registered somewhere in Cyprus. This is not about an advertisement. This is [about] financing mass propaganda against Law and Justice through an agreement which has been threatened by Law and Justice, so that such dubious deals (geszefty) ... The point is that Law and Justice has interfered with extremely serious connections, which have been draining ... Just one sentence ... but the jokes are over, and this structure (układ) understood that there will be no early elections, there will be no minority government, this is a chance for an institutional construction ...” 9. During the applicant’s statement one of the journalists interrupted him by saying: “But this would be more appropriate if someone from Gazeta Wyborcza was here.” However, the applicant continued with his statement. 10. On 16 May 2006, Agora S.A., the publisher of Gazeta Wyborcza, brought a civil claim against the applicant for the protection of its rights. It claimed that the applicant’s statements during the television programme on 8 May 2006 had harmed its good name and credibility and asked that the applicant be made to have an apology published in Gazeta Wyborcza and broadcast on TVP2 and to pay 25,000 Polish zlotys (PLN) to a charity. 11. On 12 June 2007 the Warsaw Regional Court granted the claim and ordered the applicant to issue an apology via Gazeta Wyborcza and TVP2 for the statements he had made. It further ordered the applicant to pay PLN 10,000 (approximately 2,500 euros (EUR) to a charity and PLN 2,410 (approximately EUR 600) in court fees. 12. The text of the apology to be published by the applicant was as follows: “I declare that the public statement I made during the programme Warto rozmawiać, broadcast on 8 May 2006 on TVP2, included untrue, defamatory allegations and suspicions about AGORA S.A., a company registered in Warsaw, and about its publishing activity regarding Gazeta Wyborcza. I confirm that those allegations caused negative consequences for AGORA S.A in conducting their business activities, in particular a loss of indispensable credibility and trust. Consequently, I apologise to the Warsaw-registered company AGORA S.A. (the publisher of Gazeta Wyborcza) for having publicly disseminated untrue, defamatory statements which could have harmed its good name, credibility and reputation. The above statement is made as a consequence of losing a civil case. ” 13. During the proceedings the applicant submitted that it had not been his intention to offend the plaintiff. In the television programme he had merely expressed a value judgment relating to aggressive and clearly one-sided articles published in Gazeta Wyborcza. He further noted that as his statements had been value judgments he had not had to prove their veracity. 14. The court considered that the applicant had breached the plaintiff’s rights, in particular in respect of its good name, credibility and reputation. It could be seen from the applicant’s statement that he had wished to point out to the audience that the plaintiff and Gazeta Wyborcza had had some kind of media/business agreement, whereby articles against Law and Justice had been published in Gazeta Wyborcza and financed via advertisements. 15. The court observed that the applicant’s statement had contained both facts and conclusions drawn from those facts. 16. The court further observed that an accusation that a newspaper had published articles ordered by a sponsor was clearly offensive to the publisher. Likewise, it was offensive to the publisher to be associated with a company that allegedly conducted morally doubtful activities. The defendant had not submitted any evidence in support of his allegations. He had failed to explain on what basis he had drawn the conclusion that the income obtained from a particular advertisement had resulted in articles being published in Gazeta Wyborcza. Furthermore, there had been no reason to believe that the income obtained from the J&S S.A. advertisement had been connected with any particular articles in Gazeta Wyborcza, particularly the ones that the applicant had referred to as “a frenzied attack on Law and Justice”. 17. The court stressed that J&S S.A. had at the relevant time placed advertisements in several newspapers and magazines. However, the applicant had not alleged that those other newspapers or magazines had been involved in the alleged agreement (układ). The court pointed out that a publisher could not refuse to publish an advertisement unless one of the grounds set out in the press law existed, which had not been the situation in the present case. Moreover, as a rule, a publisher was not responsible for the content of advertisements. 18. The court did not agree with the applicant that he had not wished to infringe the plaintiff’s rights. It noted that the applicant had prepared in advance to make the statement in question. He had already had a copy of Gazeta Wyborcza when he had entered the television studio and he had had it in his hand while making the statement. In the court’s opinion, the declaration had not been made spontaneously. 19. Lastly, the court observed that the applicant’s statement could not have been explained on the grounds that it had been in the public interest. On the contrary, it was in the public interest that public figures such as the applicant, a member of parliament, should base the opinions they expressed in the media on verified facts and did not breach the rights of others. 20. The applicant lodged an appeal against the judgment. He argued, amongst other things, that the Regional Court had wrongly classified his statements as facts and not as value judgments. 21. On 25 June 2008 the Warsaw Court of Appeal upheld the firstinstance judgment and ordered the applicant to pay 270 PLN (about EUR 67) in court fees for the proceedings at second instance. 22. The Court of Appeal considered that the first-instance judgment had not related to the part of the applicant’s statement concerning articles about himself and Law and Justice, even though he had called them “frenzied attacks”, because it was well known that Gazeta Wyborcza was critical of Law and Justice and that was not something which needed to be proved. However, the applicant’s allegations that J&S S.A. had conducted unclear or even suspicious dealings under the cover of placing advertisements in Gazeta Wyborcza, and had in fact financed them only to destroy Law and Justice, which, for its part, had been fighting against the “agreement” between the company in question and Gazeta Wyborcza, had been statements of fact. Nevertheless, the applicant had not proved the truthfulness of his statements about the connections between the plaintiff and the J&S S.A. company. 23. The court agreed with the Regional Court that the applicant had prepared in advance to make the statement in question. The programme had concerned different issues and the statement had not been a response or reaction to the discussion between the participants. During the programme the applicant had kept a copy of Gazeta Wyborcza under his chair, which he had shown to the cameras at the relevant moment. 24. As regards the PLN 10,000 (about EUR 2,500) to be paid to a charity, the court considered that to be a modest sum and the costs of publishing an apology a normal consequence of the applicant’s wrongdoing. 25. The applicant lodged a cassation appeal against the judgment. He argued that the Court of Appeal had wrongly applied the standards of Article 10 of the Convention and had thus considered his statement to be one of fact rather than a value judgment. In his opinion, he had expressed value judgments during a public debate and had therefore not undermined the plaintiff’s good name. 26. The applicant’s cassation appeal was dismissed by the Supreme Court on 5 November 2009. 27. The court considered that the statement in question, in so far as it had concerned relations between J&S S.A. and Gazeta Wyborcza, had been a statement of fact. The applicant had spoken of suspicious links between Gazeta Wyborcza and the publisher of the advertisement and the creation of fictional reasons for receiving funds from that publisher, which was all aimed at allowing Gazeta Wyborcza to oppose Law and Justice. Such a statement, according to the court, had gone further than being a simple opinion about an advertisement in the press. Adding more information had put J&S S.A.’s advertisement in a completely different, negative light. Asking the applicant to prove such a statement had not been excessive and had not interfered with the freedom of political debate, but had been necessary for the accuracy and pertinence of such a debate. 28. The court further referred to Article 10 of the Convention and stressed that freedom of expression was not absolute. Noting the case of Feldek v. Slovakia (no. 29032/95, ECHR 2001VIII), it further reiterated that where a statement amounted to a value judgment, the proportionality of the interference may depend on whether there existed a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive. In the present case, the defendant had not even attempted to prove the accuracy of his statements about the alleged connections of which he had accused the plaintiff. 29. On 29 August 2008 Agora S.A. instituted enforcement proceedings in order to summon the applicant to comply with the obligations imposed by the Warsaw Regional Court’s judgment of 12 June 2007. 30. On 12 January 2010 the Warsaw District Court ordered the applicant to publish the apology in question in Gazeta Wyborcza (in a smaller size than originally indicated). Since the applicant failed to comply with that order, on 26 February 2010 the Warsaw District Court allowed Agora S.A. to publish the apology in Gazeta Wyborcza in the applicant’s name and ordered him to cover the costs of publication of PLN 34,897.36 (about EUR 8,700). | 1 |
test | 001-175491 | ENG | RUS | COMMITTEE | 2,017 | CASE OF BAGNOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. In application no. 26708/13 the applicant also raised other complaints under the provisions of the Convention. | 1 |
test | 001-141852 | ENG | FIN | ADMISSIBILITY | 2,014 | HANNINEN v. FINLAND | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicant, Mr Joni Hänninen, is a Finnish national, who was born in 1970 and lives in Vantaa. He was represented before the Court by Mr Jukka Juusela, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 4 June 2011 the police conducted a search of an apartment which the applicant owned. The apartment was searched because another person staying there was suspected by the police of attempted manslaughter (tapon yritys, försök till dråp). 5. The applicant claims that he, as the owner of the apartment, was not allowed to be present during the search, nor was he told why the apartment was being searched and why he could not be present. The search was conducted late at night (at 11 p.m.) without any special reason. The apartment had been damaged because the police had entered violently, even though the applicant had been willing to give them a key, and the police dog had damaged the floor. The applicant’s car had also been searched. 6. According to the Government, the minutes drawn up after the search indicated that the applicant, as the owner of the apartment, had been informed about the search. He had been requested to give the police the key to the security lock of the door to the apartment. As no key was available, the security lock was drilled with the applicant’s consent. It appeared from the minutes that the applicant’s car was never searched. Nor had the police dog entered the apartment during the search. 7. On 12 September 2011 the applicant received the minutes drawn up after the search. 8. By letter dated 8 December 2011, the applicant claimed compensation from the Helsinki Police Department for the damage caused by the police. 9. On 16 April 2012 the applicant’s claim for compensation was rejected by the Helsinki Police Department for lack of fault or negligence on the part of the police. 10. The applicant has the possibility to take the issue further by instituting a civil action in a District Court (käräjäoikeus, tingsrätten) but apparently he has not done so. 11. According to Article 10 of the Finnish Constitution (perustuslaki, grundlagen, Act no. 731/1999), the sanctity of everyone’s home is guaranteed. Measures derogating from this right, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, must be laid down by an Act. 12. Chapter 5, section 1, subsection 1, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no. 646/2003) provides that a search may be conducted, inter alia, if there is reason to suspect that an offence has been committed and provided that the maximum sentence applicable exceeds six months’ imprisonment. 13. The person whose domicile is being searched, or in his or her absence someone else, must be given the opportunity to be present at the search and to call a witness, unless this causes delay. If none of the abovementioned persons were present at the search, the person whose domicile has been searched must be informed immediately (Chapter 5, section 4, subsection 2). 14. A search at domicile cannot be conducted between 9 p.m. and 6 a.m. unless there are special reasons (Chapter 5, section 5, subsection 4). 15. The search warrant is issued by the investigative organs themselves. 16. According to Chapter 21, section 1, of the Penal Code (rikoslaki, strafflagen, as modified by Act no. 578/1995), a person shall be sentenced for manslaughter to imprisonment for a minimum of eight years and a maximum of twelve years. For an attempt, the maximum sentence is at most three quarters of the maximum sentence for the accomplished offence. 17. According to section 118, subsection 3, of the Constitution anyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to punishment and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided in more detail by an Act. 18. Chapter 40, section 9, subsection 1, of the Penal Code (Act no. 604/2002) provides that if a public official, when acting in office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for violation of official duties to a fine or to imprisonment for at most one year. 19. Chapter 40, section 10, of the Penal Code (Act no. 604/2002) provides that if a public official, when acting in office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for negligent violation of official duties to a warning or to a fine. 20. According to Chapter 1, section 14, of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål, Act no. 689/1997), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges. 21. Under Chapters 3 and 4 of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or negligence by its employees in the performance of their duties. | 0 |
test | 001-141393 | ENG | BIH | ADMISSIBILITY | 2,014 | MITRANIĆ v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Robert Spano;Vincent A. De Gaetano | 1. The applicant, Mr Ljubinko Mitranić, is a citizen of Bosnia and Herzegovina, who was born in 1936 and lives in Banja Luka. He was represented before the Court by Mr S. Ivetić, a lawyer practising in Banja Luka. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. On 13 April 1992 the applicant’s brother, Vladimir Mitranić, was killed in his house in Livno together with his friend K.P. 4. On 14 April 1992 the investigating judge of the then Livno First Instance Court conducted an on-site investigation in the presence of criminal and medical experts and two police officers. Some members of the family were also present. 5. It would appear that no other procedural steps were taken thereafter. 6. On 17 June 1995 the applicant wrote to the Livno Cantonal Prosecutor, to the Livno Cantonal Court, to the Cantonal Ministry of Interior and to the International Police Task Forces (IPTF) in Bosnia and Herzegovina, enquiring whether the perpetrators had been identified or arrested. It would appear that he received no answer. 7. On 5 December 2005 the applicant lodged a constitutional appeal complaining about the lack of an effective investigation into the killing of his brother. On 14 March 2006 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) joined the applicant’s case to 35 other similar cases (some of which concerned missing persons and others, like the applicant’s, war time killings) and found a violation of Articles 3 and 8 of the Convention. It ordered the competent authorities to conduct effective investigations into the relevant disappearances and murders without delay and to inform the relatives of the results (decision no. AP-1248/05). 8. On 5 February and 22 October 2007 the applicant informed the Constitutional Court that, following its decision of 14 March 2006, no procedural steps had been taken with a view to investigate his brother’s murder. 9. On 23 May 2007 the Constitutional Court adopted a procedural decision (a decision which merely acknowledges the fact of non-enforcement and which is transferred to the State Prosecutor for further, if any, action), to the effect that its decision of 14 March 2006 had not been fully enforced as regards, in particular, the applicant’s and several other cases. 10. On 19 February 2008, following the applicant’s enquiry, the Livno Cantonal Prosecutor informed him that the case file (the photographs taken at the crime scene, the record of the on-site investigation and other material gathered during the on-site investigation) had been transferred to the State Prosecutor because the case concerned a war crime. It is not clear when the transfer took place. 11. On 11 June 2008 the applicant was invited to provide information concerning war crimes committed in the territory of the Livno municipality to the State Prosecutor on 23 June 2008. 12. On 1 July 2008, following the applicant’s enquiry, the State Prosecutor informed him that all the necessary steps were being taken with a view to discovering those involved in the murder of his brother. 13. The 2003 Criminal Code (Official Gazette of Bosnia and Herzegovina nos. 3/03, 37/03, 32/03, 54/04, 61/04, 30/05, 53/06, 55/06 32/07 and 8/10) entered into force on 1 March 2003. The relevant part of Article 173 of the Code provides as follows: “ 1. Whoever in violation of rules of international law in time of war, armed conflict or occupation, orders or perpetrates any of the following acts: a) Attack on civilian population, settlement, individual civilians or persons unable to fight, which results in the death, grave bodily injuries or serious damaging of people’s health ; ... b) Killings... ... shall be punished by imprisonment for a term not less than ten years or by long-term imprisonment”. | 0 |
test | 001-177347 | ENG | UKR | COMMITTEE | 2,017 | CASE OF STASZUK v. UKRAINE | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1985 and lives in Warsaw. 6. On 14 May 2010 the applicant was arrested in Kyiv by officers of the Security Service of Ukraine (“the SBU”) on suspicion of unlawfully importing equipment for the covert surveillance of telephone networks and using it to intercept private telephone conversations (see paragraph 24 below), an offence committed in collaboration with M., a Russian national. 7. An SBU investigator lodged a request with the Shevchenkivskyy District Court of Kyiv (“the District Court”) seeking that the applicant be remanded in custody pending the investigation. He submitted that the applicant’s detention was necessary in order to prevent him from absconding and interfering with the investigation, given that the applicant was a foreign national, did not have a permanent place of residence in Ukraine and was suspected of a serious offence. 8. On 17 May 2010 the District Court held a hearing in the presence of the prosecutor and his lawyer, remanded the applicant in custody, and ordered that he be placed in an SBU detention facility. It held that the arguments submitted by the investigator were sufficiently strong to allow the conclusion that the applicant should be detained. 9. On 27 May 2010 the Court of Appeal held a hearing to examine the applicant lawyer’s appeal against the order of 17 May 2010 in the presence of a prosecutor and the applicant’s lawyer and upheld the order. 10. On 13 July 2010 the District Court held a hearing in the presence of the prosecutor, the applicant and his lawyer and extended the applicant’s detention until 14 September 2010. It noted that there were no reasons to release the applicant and that the investigative authority needed time to complete the investigation. 11. On 26 July and 6 August 2010 the Court of Appeal held hearings to examine, respectively, the applicant lawyer’s and the applicant’s own appeals against the District Court’s decision of 13 July 2010. Only a prosecutor was present at the former hearing, whereas the latter hearing was attended by the prosecutor, the applicant and his lawyer. The Court of Appeal rejected both appeals and upheld the District Court’s decision on both occasions. 12. On 9 September 2010 the Court of Appeal held a hearing in the presence of the prosecutor and the applicant’s lawyer, granted the investigative authority’s request, and extended the applicant’s detention until 14 November 2010. The court noted that the charges against the applicant were serious, that there were no reasons to release him and that the investigative authority needed more time to complete the investigation. 13. On 1 November 2010 the investigator charged the applicant with several additional offences in connection with the same events: breaching the privacy of telephone communications and unlawful transfer of equipment subject to export control, committed in a group (see paragraph 24 below). 14. On 12 November 2010 the Court of Appeal extended the applicant’s detention until 14 December 2010. 15. On 14 December 2010 the applicant’s case was sent to the District Court for trial. 16. On 27 April 2011 the District Court committed the applicant for trial, rejected the applicant’s request for release and ordered his continuing detention pending trial. The court stated that the applicant was charged with a serious offence, was a foreign national and had no permanent place of residence in Ukraine. No time-limit was set for his detention. 17. On 25 August 2011 the District Court rejected the applicant’s requests for release. It gave reasons similar to those given in its decision of 27 April 2011 and added that there was no reason to set an end-date for the applicant’s detention since his detention was needed to complete the trial. 18. On 14 October, 24 November 2011, and 11 January 2012 the District Court rejected the applicant’s further requests for release. It gave reasons similar to those given in its decision of 27 April 2011. 19. On 19 March 2012 the District Court convicted the applicant as charged, sentencing him to four years’ imprisonment. 20. On 7 December 2012 the Court of Appeal quashed the conviction and remitted the case for additional investigation. It ordered the applicant’s continuing detention without giving reasons. 21. On 15 January 2013 the District Court set bail for the applicant. 22. On 16 January 2013 the applicant was released on bail. 23. On 17 May 2013 the District Court approved the applicant’s plea bargain, convicted him, and sentenced him to two years and eight months’ imprisonment, which was to be considered fully served in view of the time the applicant had spent in pre-trial detention. | 1 |
test | 001-170042 | ENG | SVK | CHAMBER | 2,017 | CASE OF RIEDEL AND OTHERS v. SLOVAKIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicants are owners or co-owners of residential buildings which comprise flats that were or still are subject to rent control. They obtained ownership of the flats by various means, such as restitution, donation, inheritance or purchase. Under the relevant legislation they had to accept that the flats were occupied by tenants with a regulated rent and that they could charge them no more than the maximum amount of rent fixed by the State. The relevant legislation precluded them from unilaterally terminating the leases, or selling the flats other than to the tenants (“the rentcontrol scheme”). The particulars of the flats affected by the rentcontrol scheme are set out in Appendixes 25 (columns AF). 7. The situation of the applicants is structurally and contextually the same as in Bittó and Others v. Slovakia (no. 30255/09, 28 January 2014 (merits) and 7 July 2015 (just satisfaction) and three subsequently decided cases concerning the rent controlscheme in Slovakia (Krahulec v. Slovakia, no. 19294/07; Bukovčanová and Others v. Slovakia, no. 23785/07; and Rudolfer v. Slovakia, no. 38082/07, all adopted on 5 July 2016). 8. It is in dispute between the parties in the present case what amount of rent the applicants would be able to receive by letting their flats under freemarket conditions. By extension, that disagreement translates into an argument over the proportion of the market rent that the regulated rent represents. 9. In that connection, the Government submitted an expert’s opinion drawn up in 2010 in relation to all four applications (“the Government’s expert opinion”), according to which the monthly free-market rent for flats comparable to the applicants’ was between 6.13 and 6.48 euro (EUR) per sq. m in the municipality of Bratislava-Staré Mesto and EUR 5.05 and 5.35 per sq. m in the municipality of Bratislava-Nivy. The regulated rent in the flats owned by the applicants ranged between EUR 0.80 and 1.7 per sq. m. According to those calculations therefore, the regulated rent of the flats possessed by the applicants corresponded to some 14-26% of the market rent in 2010. The relevant data are set out in Appendixes 25 (columns GI). 10. The applicants for their part relied on different sources of information to support their contention that the regulated rent was disproportionately low compared with similar flats to which the rent-control scheme did not apply. The data submitted by them are set out below separately in relation to each application. 11. The applicants maintained that in 2007 the regulated rent ranged between EUR 76 and 84 a month whereas the average free-market rent for comparable flats in a similar location was EUR 956 a month. They submitted an expert’s opinion which showed that the difference between the general rental value of the property and the regulated rent they actually received was EUR 88,431.53 for the period between 2000 and 2011. 12. The applicants submitted that in 2010 the regulated rent for their flats amounted to EUR 95 and 105 a month, whereas the monthly free-market rent for comparable flats was EUR 616. They relied on data from the National Association of Real Estate Agencies (“the NAREA”). Depending on the period and the relevant law in force, the regulated rent represented some 5-13% of the market rent for comparable flats in the area. They further submitted that the sum which they and the other coowners had invested in repairing the building was ten times the income they obtained from letting the flats under the rentcontrol scheme. 13. In 2008 the applicant was allowed to charge a monthly rent of EUR 40 to 60 for each of his flats. He submitted that the market rent in the same area in 2005 was between EUR 305 and EUR 366 a month for the single-room flat and between EUR 396 and EUR 488 a month for the two-room flats. He relied on information about average rental prices published in the press. 14. The applicants submitted that the regulated rent for their flats ranged between EUR 38.5 and 104 a month in 2010. Relying on data from the NAREA, they maintained that the market rent for comparable flats in the area amounted to approximately EUR 616 a month. | 1 |
test | 001-173472 | ENG | RUS | CHAMBER | 2,017 | CASE OF PAKHTUSOV v. RUSSIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 5. The applicant is a taxi driver. 6. On the night of 25 July 2009 traffic police stopped the applicant’s car. Following the applicant’s failure to produce his driving licence and suspecting that it had been withdrawn, police officers took him to the duty unit of the Ezhvinskiy District police station, where he was kept in a cell for administrative detainees until the following morning. A record of the applicant’s administrative arrest was drawn up. 7. On 26 July 2009 the Justice of the Peace of the Vezhdinskiy Court Circuit of the Ezhvinskiy District found the applicant guilty of driving a vehicle after the withdrawal of his driving licence (an administrative offence under Article 12.7 § 2 of the Russian Code of Administrative Offences) and sentenced him to fifteen days of administrative detention. 8. On 31 July 2009 the applicant made a written request to the head of the detention unit seeking a family visit. The next day the request was returned to the applicant bearing a handwritten note by the acting head of the detention unit, Mr S., which stated that family visits were not “provided for [by law]”. 9. On 14 August 2009 the applicant’s representative lodged a complaint with the Syktyvkar Town Court, alleging that the applicant’s right to family life guaranteed by Article 8 of the Convention had been unlawfully restricted. 10. The police officials filed a written objection, arguing that the Internal Rules governing Detention Facilities for Administrative Detainees did not provide administrative detainees with the right to have a family visit. 11. On 15 September 2009 the Syktyvkar City Court dismissed the applicant’s complaint, having accepted the police authorities’ argument that administrative detainees were not entitled to a family visit under the domestic law in force and that the applicant had been subjected to those limitations of his rights as a negative consequence of the administrative detention. 12. The applicant’s representative appealed. Relying on the Court’s judgments in the cases of Messina v. Italy (no. 2) (no. 25498/94, § 61, ECHR 2000X) and Vlasov v. Russia (no. 78146/01, § 123, 12 June 2008), he argued that the authorities’ assistance in maintaining contact with close family was an essential part of a detainee’s right to respect for family life. Limitations imposed on the number of family visits constituted an interference with the applicant’s rights under Article 8 of the Convention. Restrictions of that kind could only be applied “in accordance with the law”, should pursue one or more legitimate aims and, in addition, should be justified as being “necessary in a democratic society”. The representative submitted that there was no norm in Russian law imposing restrictions on family visits for administrative detainees. 13. On 22 October 2009 the Supreme Court of the Komi Republic upheld the City Court’s decision, having reasoned as follows: “There is no prohibition on family visits for administrative detainees. ... [At the same time] a refusal to authorise a family visit has a basis in Russian law; however, it should be warranted by circumstances and conditions providing the competent authorities with the right to apply the disputed restriction. Providing lawenforcement bodies with unlimited powers in issues pertaining to fundamental rights could run contrary to the superior role of the law and could result in arbitrary interference with human rights. In the case under examination, there are no grounds for concluding that the actions of the acting head [of the detention unit of the police station where the applicant had been detained] were unlawful because, having applied for a family visit, [the applicant] had not indicated whom he had wanted to see and what the relationship was between him and that person. If those important details are not provided, the authorisation of a family visit cannot be considered lawful.” | 1 |
test | 001-157533 | ENG | RUS | CHAMBER | 2,015 | CASE OF FARTUSHIN v. RUSSIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 6. The applicant was born in 1985 and lived in Sarov, in the Nizhniy Novgorod region. 7. An all-terrain vehicle and a car were stolen from private garages in Sarov in February and April 2008, respectively. An investigation unit at the Sarov police department (управление внутренних дел г. Саров, “the Sarov UVD”) instituted criminal proceedings into the thefts. The police had information about the applicant’s involvement in the thefts. 8. At about 10.40 a.m. on 5 May 2008, V., an operative agent of the Sarov UVD, contacted the applicant by telephone and requested him to come to office no. 320 at the Sarov police station at 2 p.m. for questioning. At 2 p.m. on the same day the applicant arrived at the police station, as requested. He was accompanied by K., F., Zh. and P., who stayed outside awaiting his return. A police officer on duty registered the applicant’s arrival at the police station at 2 p.m. 9. The applicant provided the following account of events at the police station. In office no. 320 police officer V. and the chief of the criminal investigation unit of the Sarov UVD, B., demanded that he confess to the thefts. Following his refusal, he was taken to a nearby office, shackled and beaten up by B., who kicked and punched him in the head, torso and extremities and jumped on his head, while V. was shouting threats at the applicant. Afterwards the applicant was kept in different offices of the criminal investigation unit. He was given no food or drink. He felt unwell and vomited blood. No medical help was provided to him despite his requests. 10. On 6 May 2008 the applicant’s wife lodged an application with the Sarov town prosecutor and the head of the Sarov town police department, complaining that the applicant was being held at the police station unlawfully, that he had a serious stomach ulcer condition and that a lack of food could cause bleeding. A lawyer appointed by the applicant’s family was unable to locate him at the police station. 11. According to the police records, at midday on 6 May 2008 investigator K. of the Sarov UVD questioned the applicant as a witness in the theft case. 12. According to documents prepared by investigator K. and police officer V., at an unspecified time on the same day the investigator requested that the applicant, who was suspected of having committed the theft, be brought to the police station for investigative measures. Police officer V. reported that he had found the applicant in the street at 8 p.m. and taken him to the police station at 8.15 p.m. on 6 May 2008. 13. At 8.20 p.m. on 6 May 2008 the investigator drew up a record of the applicant’s arrest as a suspect in the criminal proceedings concerning the theft of the all-terrain vehicle. 14. At 8.55 p.m. the applicant was placed in a temporary detention facility at the Sarov UVD (“IVS”). The applicant’s cellmate C. saw injuries on the applicant’s head and learned from him that he had been beaten up by police officers in order to force him to confess to a crime. 15. At 9.15 p.m. an ambulance was called. An ambulance doctor diagnosed the applicant with a stomach ulcer. According to the IVS records, the applicant had abrasions on his arms. 16. On 7 May 2008 the applicant’s lawyer visited the applicant in the IVS and photographed the injuries on his body. According to the applicant, he had bumps and bruises on his head and neck and was unable to hear well, and he also had bruises on his torso and extremities. 17. On 8 May 2008 the applicant was brought before a judge, who ordered that he be remanded in custody. 18. The applicant and a number of other persons were charged with the theft of the allterrain vehicle and the car. 19. On 7 May 2008 the applicant lodged a complaint with the Sarov town prosecutor, alleging that he had been unlawfully deprived of his liberty on 5 and 6 May 2008 and ill-treated in police custody. He claimed that he could identify the police officers responsible for his ill-treatment. Similar complaints were also lodged by the applicant’s mother, his wife and his lawyer. 20. On 8 May 2008 the prosecutor’s office forwarded the complaints to the Sarov Investigation Department of the Investigative Committee at the Nizhniy Novgorod regional prosecutor’s office (the “Sarov Investigative Committee”). On the same day the applicant’s lawyer lodged a similar application with the Sarov Investigative Committee. 21. On 12 May 2008 the applicant was examined by a forensic medical expert. According to the expert’s report (акт судебно-медицинского освидетельствования) no. 572, the applicant had a bruise on his back measuring 3 to 4 cm, an abrasion measuring 4 to 10 cm on his left forearm and an endermic haemorrhage on his chest. The expert concluded that the injuries could have been inflicted by blunt objects on 5-6 May 2008. 22. On 14 May 2008 an investigator of the Sarov Investigative Committee received explanations by the applicant, who maintained his complaints. The applicant stated, in particular, that N.P., who had been held in the same office with his hands shackled, had witnessed the applicant’s illtreatment by police officer B. on 5 May 2008. According to explanations by police officers B. and V., in the course of operative-search activities the police had obtained information about the applicant’s involvement in the theft of the all-terrain vehicle. V. had called the applicant on 5 May 2008 and requested him to come to the police station for questioning by the investigator. They denied the applicant’s allegations about his unlawful detention and ill-treatment, stating that he had been brought to the police station on 6 May 2008 at the investigator’s request (see paragraph 12 above). V. also stated that in the evening of 6 May 2008 N.P., another suspect in the thefts case, had been brought to the police station at the same time as the applicant, and that N.P. and the applicant had been held separately. N.P., whose explanations were also received by the investigator, stated that on the evening of 6 May 2008 he had gone to the police station for questioning and that he had not seen the applicant there. 23. On 22 May 2008 the investigator of the Sarov Investigative Committee ordered that no criminal proceedings be instituted in respect of the applicant’s complaints of unlawful detention and ill-treatment in view of the lack of constituent elements of a crime in the acts of police officers B. and V. and investigator K., pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”). He stated that there were no reasons to believe that the injuries recorded by the forensic medical expert had been sustained while the applicant had been held at the police station, as this had been denied by the police officers and N.P. 24. On 22 July 2008 that decision was revoked by the Sarov Investigative Committee as the inquiry on which it was based was considered incomplete. The following day, a new decision not to open a criminal case was taken and on 6 August it was revoked for the same reason. Among those whose explanations were received by the investigator in the course of an additional inquiry were K. and F. (see paragraph 8 above). They stated that on 5 May 2008 they had gone to the police station with the applicant, Zh. and P. in the applicant’s car, that they had seen the applicant, who had had no injuries at that time, enter the police station at 2 p.m. and had waited for him outside. At 3 or 4 p.m. on 5 May 2008, while waiting for the applicant, who had still not returned, F. had seen N.P. enter the police station at the request of police officer V. and another person. 25. A new decision not to open a criminal case was taken on 6 October 2008. It was revoked on 20 October 2008 and a similar decision was taken on 6 November 2008. The applicant, whose explanations were again sought by the investigator, stated that his ill-treatment by police officer B. on 5 May 2008 had lasted for about an hour, between 4.30 p.m. and 5.30 p.m. On 25 May 2009 the higher investigative committee at the Nizhniy Novgorod regional prosecutor’s office set aside the decision of 6 November 2008 on the grounds that it was based on an incomplete inquiry. 26. The most recent decision not to open a criminal case on the grounds that the constituent elements of a crime in the acts of police officers B. and V. and investigator K. were missing was taken on 10 June 2009 pursuant to Article 24 § 1 (2) of the CCrP. The same reasoning was given as in the initial decision of 22 May 2008 and in the decisions which had been taken in the meantime. It was mainly based on the denial by the police officers and investigator K. that the applicant had been ill-treated and detained before 8.20 p.m. on 6 May 2008. 27. The applicant appealed against the investigator’s decision of 22 May 2008 to the Sarov Town Court under Article 125 of the CCrP. On 1 August 2008 the Town Court ruled that the application should not be examined, and terminated the proceedings on the grounds that on 22 July 2008 the Sarov Investigative Committee had revoked the investigator’s decision. 28. Court appeals lodged by the applicant against the investigator’s subsequent decisions of 23 July and 6 October 2008 were not examined for the same reason (the Town Court’s decisions of 7 August and 20 October 2008). 29. On 6 March 2009 the Town Court examined the applicant’s complaint seeking to have the failure by the head of the Sarov Investigative Committee to carry out an inquiry into an application lodged by the applicant’s counsel on 22 January 2009 declared unlawful. It was alleged in that application that investigator K., police officer V. and others had forged the documents concerning the time at which the applicant had been taken into custody. The Town Court granted the applicant’s request and declared the inactivity on the part of the head of the Sarov Investigative Committee unlawful. 30. On 3 August 2009 the Sarov Town Court dismissed the applicant’s appeal against the Sarov Investigative Committee’s decision of 10 June 2009 (see paragraph 26 above), holding that the decision was lawful and well-grounded. On 15 September 2009 the Nizhniy Novgorod Regional Court dismissed the applicant’s appeal and fully endorsed the firstinstance court’s decision. | 1 |
test | 001-166683 | ENG | TUR | CHAMBER | 2,016 | CASE OF SIDIKA İMREN v. TURKEY | 4 | Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect) | Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković | 4. The applicant was born in 1945 and lives in Ankara. 5. At the time of the events giving rise to the present application, the applicant’s daughter, Serpil İmren, worked as a secretary for a private company engaged in the trade of mineral oil, namely Kros Petrol Madeni Yağ Turizm İnşaat Emlak İth. İhr. San. Tic. Ltd. Şti (“the company”). On 18 December 2002, at approximately 8.30 a.m., a fire broke out at her workplace when one of her colleagues, M.Y., attempted to light the wood-burning stove used to heat the office area by pouring petrol onto it. Serpil İmren sustained serious injuries as a result of the fire. On 17 January 2003 she died at the hospital where she had been receiving treatment for her burns. 6. Upon being informed of the fire, three police officers arrived at the scene of the incident at approximately 9.30 a.m. on 18 December 2002. They prepared a report describing the state of the premises in the aftermath of the fire and a sketch map of the scene of the incident. 7. At 10.50 a.m. on the same day two police officers went to the hospital where the applicant’s daughter Serpil İmren had been taken for treatment. They reported that she was not in a condition to make a statement regarding the incident. 8. At 11 a.m. the police interrogated two suspects in relation to the fire, namely M.Y., Serpil İmren’s colleague who had apparently started the fire, and K.N.Y., who was the owner of the company for which Serpil İmren was working. M.Y described the incident as noted in paragraph 5 above. K.N.Y. stated that he had not been at the workplace at the time of the incident. 9. On 27 December 2002 the Ankara public prosecutor filed a bill of indictment with the Ankara Criminal Court of First Instance against M.Y. for starting a fire and causing bodily harm by negligence. 10. On the same day the Ankara public prosecutor delivered a decision not to prosecute in relation to K.N.Y. 11. On 1 April 2003 the Ankara Criminal Court of First Instance issued a decision of non-jurisdiction and transferred the case to the Ankara Assize Court. 12. In the meantime, inspectors from the Ministry of Labour and Social Security (“the Ministry”) initiated an investigation into the incident. According to their report dated 28 February 2003, the necessary precautions had not been taken at the relevant workplace to prevent and put out fires, such as training the employees in fire safety and the operation of woodburning stoves. Such training was particularly important bearing in mind that the company was engaged in the mineral oil business. 13. Relying on the inspectors’ findings regarding the lack of precautions necessary for the prevention of fires in the deceased’s workplace, on 18 April 2003 the applicant lodged a new complaint with the Ankara public prosecutor’s office against the owner of the company, K.N.Y. 14. On 26 May 2003 the Ankara public prosecutor issued an additional indictment against K.N.Y. for causing Serpil İmren’s death by negligence. 15. On an unspecified date the applicant joined the criminal proceedings as a civil party. 16. There is no information in the case file as to when the Ankara Assize Court started hearing the case. On 16 September 2003 the second hearing was held, during which the court heard the statements of the defendants and two prosecution witnesses. 17. At the third hearing held on 5 December 2003 the Ankara Assize Court heard three defence witnesses. It also ordered that an on-site inspection be carried out at the workplace on 23 February 2004 by courtappointed experts. It appears from the information in the case file, however, that the on-site inspection was carried out on 12 April 2004. 18. On 16 April 2004 the court-appointed experts issued their report, where they largely repeated the findings of the Ministry’s inspectors noted in paragraph 12 above. The experts concluded that M.Y. and K.N.Y. each bore 50 % responsibility for the incident. 19. On 19 April 2004 the Ankara Assize Court requested that the Forensic Medicine Institute issue a report examining whether a causal link existed between Serpil İmren’s death and the fire at her workplace. In a report dated 4 June 2004 the Forensic Medicine Institute confirmed that Serpil İmren had died on account of complications caused by the burns she had sustained during the fire. 20. In the meantime, on 6 May 2004 the Ankara Assize Court ordered the employer’s insurance company to provide the accident report prepared in the aftermath of the incident, along with photographs and any other documents relevant to the incident. On 9 July 2004 the insurance company submitted the requested documents. 21. Relying mainly on the reports issued by the court-appointed experts and the inspectors of the Ministry, as well as the report of the Forensic Medicine Institute, on 29 April 2005 the Ankara Assize Court convicted the defendants as charged and sentenced each of them to ten months’ imprisonment and a fine. The defendants appealed against this judgment. 22. On 1 May 2006 the public prosecutor’s office attached to the Court of Cassation remitted the case to the Ankara Assize Court for reassessment of the sentence in the light of the new Criminal Code (Law no. 5237) that had entered into force in June 2005. 23. On 17 November 2006 the Ankara Assize Court convicted the defendants once again as charged and issued the same sentence and fine. The defendants appealed against this judgment. 24. On 13 October 2008 the Court of Cassation quashed the Ankara Assize Court’s judgment of 17 November 2006. It found that the firstinstance court had to consider whether the procedure of suspension of pronouncement of judgments (hükmün açıklanmasının geri bırakılması) provided for in section 231 of the Code of Criminal Procedure (Law no. 5271), as amended on 6 December 2006, was applicable in the circumstances. 25. On 26 February 2009 the Ankara Assize Court convicted the defendants once again and sentenced them to the same term of imprisonment and fine as before. It held that the pronouncement of the judgment could not be suspended having regard, inter alia, to the nature of the offence and the gravity of the incident. The defendants appealed against this judgment. 26. On 27 December 2010 the Court of Cassation held that the criminal proceedings should be discontinued on the grounds that the prosecution of the offence in question had become time-barred. 27. On 18 July 2003 the applicant initiated proceedings against K.N.Y., the owner of the company for which her daughter had worked, before the Ankara 13th Labour Court (“the labour court”) requesting compensation in respect of pecuniary and non-pecuniary damage following her daughter’s death. 28. On 23 October 2003 the labour court dismissed the case, which it found should have been brought against the company for which the victim had worked rather than against K.N.Y. 29. On 5 November 2003 the applicant brought compensation proceedings before the labour court against the company in relation to her daughter’s death. 30. It appears from the information in the case file that during the three hearings held in April, June and October 2004, the labour court heard the parties’ witnesses (four witnesses in total). 31. At the hearing held on 25 September 2007 the applicant requested the appointment of experts to determine the defendant company’s responsibility for her daughter’s death. The labour court accepted that request and on 24 October 2007 it appointed three experts. 32. On 28 November 2007 the experts delivered their report, in which they found that the accused company and its owner, K.N.Y., bore 70 % and 5 % responsibility, respectively, for Serpil İmren’s death. According to the experts, the remaining responsibility lay with M.Y., who was not a party to the proceedings before the labour court. 33. Relying on the findings of the experts, on 3 March 2009 the applicant brought an additional compensation claim before the Ankara 7th Labour Court against K.N.Y. On 15 July 2009 the Ankara 7th Labour Court decided to join the case against K.N.Y. to the proceedings pending before the Ankara 13th Labour Court against the company. 34. Between 14 April 2004 and 28 December 2010 the labour court held twenty-three hearings. However, apart from those mentioned in paragraphs 30 and 31 above, the labour court did not take any procedural action during that period and decided to adjourn the case at the end of each hearing pending a judgment in the criminal proceedings. 35. At its first hearing following the termination of the criminal proceedings, which was held on 3 May 2011, the labour court ordered the appointment of an expert to determine the applicant’s pecuniary damage as a result of her daughter’s death. However, the expert was not officially appointed until 9 October 2012. 36. On 26 November 2012 the court-appointed expert delivered the report on the extent of the damage suffered by the applicant. 37. Between 8 February 2012 and 3 February 2014 the labour court held ten more hearings. It appears that six of those hearings were postponed pending information from the Social Security Institution (Sosyal Güvenlik Kurumu) concerning the benefits received by the applicant following her daughter’s death. 38. On 4 June 2014 the labour court delivered its judgment on the case. It rejected the applicant’s claims in respect of pecuniary damage, except for funeral costs in the amount of 1,306 Turkish liras (TRY) (approximately 455 euros (EUR)), plus interest (TRY 40 to be paid by K.N.Y. and the rest by the company). It granted her request in respect of non-pecuniary damage and ordered the payment of TRY 10,000 (approximately EUR 3,480), together with interest (TRY 1,000 to be paid by K.N.Y. and the rest by the company). 39. On 27 April 2015 the Court of Cassation upheld the judgment of the labour court. 40. It appears from the information in the case file that the applicant has not yet received payment of the damages ordered by the labour court. It also appears from the applicant’s undisputed allegations that during the time it took to reach a decision on her civil claim, the company had closed down and the damages ordered by the court against that company could therefore not be collected. | 1 |
test | 001-147032 | ENG | UKR | ADMISSIBILITY | 2,014 | MALYSH AND IVANIN v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | The applicant in the first case, Mr Sergiy Valentynovych Malysh, is a Ukrainian national, who was born in 1961 and lives in Chasiv Yar (“the first applicant”). The applicant in the second case, Mr Anatoliy Ivanovych Ivanin, is a Ukrainian national, who was born in 1931 and lives in Kostyantynivka (“the second applicant”). The facts of the applicants’ cases, as submitted by the applicants, may be summarised as follows. The applicants instituted separate sets of proceedings before the administrative courts claiming that their special pension and insurance payments had been wrongly calculated by the authorities. The courts rejected the applicants’ claims as unsubstantiated, finding that the impugned payments had been in accordance with the law and with due regard to the applicants’ specific circumstances. The final decisions were taken by the Donetsk Administrative Court of Appeal on 10 September 2013 in the first applicant’s case and by the Higher Administrative Court on 24 October 2013 in the second applicant’s case. The applicants did not take part in the hearings on 10 September and 24 October 2013 respectively. On 9 October 2013 the Higher Administrative Court refused to examine the first applicant’s cassation appeal, finding that no cassation appeal lay against the appeal court’s decision of 10 September 2013. The applicants did not indicate the dates on which they were informed of the decisions in their cases. On 26 December 2013 the first applicant made submissions to the Court from which it appeared that he intended to lodge an application under the Convention. By a letter of 21 January 2014, the Court invited the first applicant to submit, by 19 March 2014 at the latest, a duly completed application form together with copies of all relevant documents. The Court’s letter enclosed copies of the Convention, an official application form and the Court’s information note for persons wishing to apply to the Court. On 28 March 2014 the Court received the first applicant’s application form, in which he complained principally about the outcome and unfairness of the domestic proceedings in his case. By a letter of 11 April 2014, the Court informed the first applicant that he had not complied with the requirements set out in Rule 47 of the Rules of Court, as he had failed to provide copies of all relevant documents relating to exhaustion of domestic remedies, in particular copies of his appeals. The first applicant was further informed that his complaints could not be examined by the Court and that the six-month period referred to in Article 35 § 1 of the Convention was interrupted only when a complete application was sent to the Court. On 18 March 2014 the second applicant sent an application form to the Court, in which he complained about the outcome and alleged unfairness of the domestic proceedings in his case. On 26 March 2014 the Court received the second applicant’s application. By a letter of 3 April 2014, the Court informed the second applicant that he had not complied with the requirements of Rule 47 of the Rules of Court, as he had failed to provide copies of all relevant documents relating to exhaustion of domestic remedies, in particular copies of his claim and appeals. The second applicant was also informed that his complaints could not be examined by the Court and that the six-month period referred to in Article 35 § 1 of the Convention was interrupted only when a complete application was sent to the Court. On 20 and 21 May 2014 respectively the first and second applicants lodged new applications forms with the Court concerning the same subject-matter as in their initial submissions. The applicants’ new applications enclosed copies of the domestic courts’ decisions and of the applicants’ claims and appeals. In his new application, the second applicant stated that, due to his age and poor state of health, claiming that he suffered from a disability, it had taken him a long time to get to the places where he could receive the help and information necessary for the preparation of his application to the Court. He provided no further details or documents concerning his health problems or the alleged complications he faced in the preparation of his application. | 0 |
test | 001-142305 | ENG | ALB | CHAMBER | 2,014 | CASE OF LULI AND OTHERS v. ALBANIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 6. All three applications were lodged with the Court by the same applicants. They were initially registered under application no. 31355/09 (not communicated to the Government). 7. After a preliminary examination of the case file and taking account of the applicants’ additional clarifications as well as the conduct of the domestic proceedings, it was considered necessary to divide the case into three applications, two additional application numbers having been allocated (nos. 64480/09 and 64482/09). These latter two cases have been communicated to the Government. 8. The facts in respect of each application have been described below. 9. On 6 March 1996 the Durrës Restitution and Compensation of Properties Commission (“the Durrës Commission”) recognised the applicants’ inherited property rights to a plot of land measuring 174,000 sq. m, 4,200 sq. m of which was restored. The applicants would have the right to first refusal (e drejta e parablerjes) of a further 5,800 sq. m and they would be compensated in one of the ways provided for by law for the remaining 158,200 sq. m (“the first Commission decision”). 10. On the same day, the Durrës Commission, consisting of the same composition, delivered another decision which bore the same number and Commission stamp (“the second Commission decision”). According to the second decision, the Durrës Commission recognised the applicants’ inherited property rights to a plot of land measuring 17,400 sq. m, 4,200 sq. m of which was restored. The applicants would have the right to first refusal of 5,800 sq. m, no other award having been made. 11. On 6 December 2005 the Durrës District Court recognised the existence of the applicants’ inherited property rights to a plot of land measuring 400,000 sq. m situated in the city of Durrës (vendim për vërtetim fakti). This plot of land was made up of two smaller plots: one measuring 260,000 sq. m (“Plot A”) and the other measuring 140,000 sq. m (“Plot B”). 12. On an unspecified date the applicants made an application for the recognition of property rights to Plot B (see paragraph 11 above). 13. On 30 July 2007 the Durrës Regional Agency for Compensation and Restitution of Properties (“the Durrës Regional Agency”) recognised the applicants’ inherited property rights to Plot B, 53,200 sq. m of which was restored. The applicants would also be compensated in one of the ways provided for by law in respect of a further 22,960 sq. m, no decision having been taken in respect of the remaining 63,840 sq. m. 14. On 15 November 2007, following the applicants’ appeal, the Agency for Compensation and Restitution of Properties in Tirana (“the Central Agency”) quashed the Durrës Regional Agency’s decision of 2007 and remitted the case for re-examination. 15. On 16 May 2008 the Durrës Regional Agency recognised the applicants’ inherited property rights in respect of only 76,160 sq. m of Plot B, no decision having been taken in respect of the remaining 63,840 sq. m. The applicants would be compensated in one of the ways provided for by law in lieu of restitution of the area of Plot B measuring 76,160 sq. m. 16. On 28 February 2011 the Central Agency quashed the Durrës Regional Agency’s decision of 2008. The applicants were informed of their right to appeal, within 30 days of notification, to the Tirana District Court. 17. It would appear that, following the applicants’ appeal, the proceedings are currently pending before the Tirana District Court. 18. On 29 March 2011 the Central Agency, having regard to the Constitutional Court’s decision no. 27/2010 (see paragraph 59 below), decided that it was outside of its jurisdiction to examine a decision given in a separate set of proceedings which, in 2003, had recognised a third party’s inherited property rights to the plot of land measuring 63,840 sq. m which the applicants alleged belonged to them. 19. On an unspecified date, after the Durrës District Court’s decision of 6 December 2005 (see paragraph 11 above), the applicants applied for the recognition of property rights to a plot of land measuring 242,600 sq. m. This plot of land, taken together with the plot of land measuring 17,400 sq. m referred to in the second Commission decision (see paragraph 10 above), totalled Plot A. 20. On 30 July 2007 the Durrës Regional Agency recognised the applicants’ inherited property rights to the plot of land measuring 242,600 sq. m and further restored them a plot of land measuring 7,788 sq. m. 4,200 sq. m of Plot A had already been restored by virtue of the second Commission decision (see paragraph 10 above). The applicants would be compensated in one of the ways provided for by law for 245,772 sq. m of Plot A, no decision having been taken in respect of the remaining 2,240 sq. m. 21. On 15 November 2007, following the applicants’ appeal, the Central Agency quashed the Durrës Regional Agency’s decision 2007 and remitted the case for re-examination. 22. On 30 April 2008 the Durrës Regional Agency recognised the applicants’ inherited property rights to the plot of land measuring 242,600 sq. m and further restored them a plot of land measuring 7,788 sq. m. 4,200 sq. m of Plot A had already been restored by virtue of the second Commission decision. The applicants would be compensated in one of the ways provided for by law for 248,012 sq. m of Plot A. 23. On 4 July 2008, on his own motion, the Central Agency’s director quashed the Durrës Regional Agency’s decision of 2008 and sent the case back for re-examination. 24. On 23 December 2009 Regional Agency offices were abolished by law and the Central Agency was entrusted with the examination of restitution and compensation claims. No further decision appears to have been taken to date. 25. On 8 June 1995 the Lezhë Commission recognised the applicant’s father’s property rights to a plot of land measuring 25,850 sq. m, 11,500 sq. m of which was restored. The applicant would be compensated in one of the ways provided for by law in respect of a plot measuring 5,000 sq. m (t’i kompesohet sipërfaqja prej 5,000 m2me mënyrat e parashikuara në [këtë] ligj). The Commission further recognised the applicant’s right to first refusal of the remaining property. 26. On 19 April 2000 the applicant registered her title to a plot of land measuring 5,830 sq. m in her name. However, she was unable to use that land as it was occupied by the Port Authority of Shëngjin (“the Port Authority”). 27. On 16 October 2000 the Ministry of Public Economy and Privatisation ordered the registration of the immovable property of the Port Authority. However, the Port Authority was unable to register the immovable property as the property rights had been recognised and registered in favour of the applicant. 28. On 3 July 2006 the applicant brought civil proceedings before the Lezhë District Court (“the District Court”) requesting the Port Authority to vacate the plot of land measuring 5,830 sq. m. 29. On 19 February 2007 the District Court accepted the applicant’s request. The Port Authority appealed. 30. On 23 October 2007 the Shkodër Court of Appeal quashed the lower court’s decision on grounds of procedural irregularities and remitted the case for re-examination by a different bench. 31. On 19 November 2007 the applicant appealed against the decision to the Supreme Court. 32. On 6 November 2009, following the applicant’s request about the progress of her appeal, the Supreme Court informed her that the case was still pending for examination before that court. 33. On 9 April 2010 the Supreme Court dismissed her appeal. 34. On 28 March 2011, in the rehearing proceedings, the District Court discontinued the proceedings (vendosi pushimin e çështjes) for lack of appearance of the applicant despite notification of the date and time of the hearing. 35. On 27 November 2007 the Gjirokastra Regional Agency recognised the applicant’s inherited property rights to some plots of land. 36. On 16 January 2008 the Gjirokastra State Advocate’s Office (“the State Advocate’s Office”) was informed of the above decision and, on 11 February 2008, appealed against it arguing that the decision had been taken in breach of the law. 37. On 12 September 2011 the Central Agency’s director stayed the proceedings until the adoption of a decision by the Constitutional Court in a case concerning the constitutionality of certain provisions of the Property Act 2004 (see paragraphs 60 and 61 below). 38. On 28 February 2012 the Central Agency relied on, inter alia, the Constitutional Court’s decision no. 43/2011 (see paragraph 62 below) to declare the case outside of its jurisdiction. 39. The proceedings are currently pending before the Tirana District Court following an appeal by the State Advocate’s Office on an unspecified date in March 2012. 40. In 1957 K. bought a plot of land and a three-bedroom house located thereon from the State. The property had been confiscated from D. and expropriated by the State in 1948. 41. On 26 October 1992 the applicant bought the property from K. and it was entered in the mortgage register. 42. On 2 August 1993, under the Rehabilitation of Victims of Political Repression Act (Law no. 7514 of 30 September 1991), the financial unit of Tirana Municipality allocated to D.’s heir, M., the land and the house purchased by the applicant. 43. On 25 August 1993 M. donated the property to her brother, H. 44. On an unspecified date in 1996 H. lodged a civil action against the applicant for the vacation of the land and the house. 45. By a final decision of 14 January 1998 the Court of Cassation ruled in favour of H., ordering the vacation of the land and the house. It upheld the lower court’s decision which had recognised H. as the legal owner and had declared null and void the sale contract of 26 October 1992. 46. On 23 September 2000 the Tirana Commission recognised H.’s title to the above properties. 47. On 24 September 2002 the applicant’s supervisory review request was rejected by the Supreme Court Joint Benches. 48. On an unspecified date, most likely in 2006, the applicant lodged a civil action seeking the nullity of a number of legal acts which had affected his property rights. 49. On 23 October 2007 the Court of Appeal found that the applicant had no locus standi to bring legal proceedings. According to the court, the sale contract of 26 October 1992 was null and void on the following grounds. In the first place, by virtue of the Rehabilitation of Victims of Political Repression Act 1992, K. was not allowed to transfer property rights to third parties. Secondly, the sale contract had not been concluded in accordance with the law (before a notary public). Thirdly, the Court of Cassation’s decision of 14 January 1998 had ordered the vacation of the land and the house by the applicant. The applicant appealed to the Supreme Court within the thirty-day statutory time-limit (see paragraph 55 below). 50. On 7 April 2011 the Supreme Court, by way of a reasoned decision, upheld the Court of Appeal’s decision. 51. On 22 July 2011 the Constitutional Court, sitting as a bench of three judges, rejected the applicant’s constitutional appeal, finding that the lower courts had correctly ruled that the applicant lacked locus standi. 52. Section 18 of the 2004 Property Act, as amended by law no. 9684 of 6 February 2007, provided for the right of a claimant and of the State Advocate’s Office to appeal against a Regional Agency’s decision recognising property rights and awarding compensation, as appropriate, within 30 days of its notification, to the Central Agency. 53. The Central Agency’s director would decide on the appeal within 30 days of its introduction (jo më vonë se 30 ditë nga regjistrimi i ankimit, Drejtori i Përgjithshëm merr vendim për objektin e ankimit). 54. Under Article 324 of the CCP a claimant may seek the annulment of an administrative decision. A claimant may also challenge the authorities’ refusal to take an administrative decision within the prescribed time-limit. 55. Article 443 of the CCP provides that the time-limit for lodging an appeal with the Supreme Court is 30 days. 56. Section 1 provides that “the HCJ is ... responsible for the protection, appointment, transfer, dismissal, education, moral and professional appraisal, career and the assessment of performance of judges of first-instance courts and of courts of appeal.” 57. Under section 2, the HCJ is also empowered to take disciplinary measures against judges. In this connection, it is assisted by an Inspectorate as provided for in section 14. Under section 16, the HCJ Inspectorate verifies complaints submitted by individuals to the HCJ or to the Minister of Justice against judges’ actions. In the event of good cause for the institution of disciplinary proceedings, the Inspectorate draws up a report and submits it to the Minister of Justice who decides on the start of disciplinary proceedings. The report is also submitted to the HCJ meetings. 58. On 26 March and 14 September 2009 the Supreme Court and the Ombudsman requested the Constitutional Court to examine the constitutionality of some provisions of the 2004 Property Act, as amended. 59. On 26 May 2010 the Constitutional Court declared unconstitutional some provisions of the 2004 Property Act, as amended, which had empowered the Central Agency’s director to review prior decisions taken by former land Commissions or Regional Agency offices (decision no. 27/2010). It found that such powers were contrary to the principle of legal certainty. 60. On 22 July 2010 Parliament therefore enacted amendments to the 2004 Property Act which restored the Central Agency’s director’s powers to review prior decisions taken by land Commissions or Regional Agency offices. 61. On 6 December 2010 and 2 February 2011 the constitutionality of these amendments was challenged before the Constitutional Court. 62. On 6 October 2011 the Constitutional Court annulled the provisions of the 2004 Property Act as introduced on 22 July 2010. It found that the Central Agency did not have the characteristics of a judicial or quasi-judicial body, so that it could not be empowered to review decisions of former land Commissions or regional Agency offices. It further found that such review powers were contrary to the principle of legal certainty and the protection of property (decision no. 43/2011). 63. On 7 November 2011 the Constitutional Court found that there had been a breach of the appellant’s right to a fair hearing as regards the length of the criminal proceedings (decision no. 47/2011). No award was made to the appellant, nor was any other means of redress provided. 64. On 5 March 2012 the Constitutional Court found that there had been a breach of the appellant’s right to a fair hearing as regards the length of the civil proceedings (decision no. 12/2012): the civil action had been pending before the District Court since 2006. No award was made to the appellant, nor was any other means of redress provided. | 1 |
test | 001-177917 | ENG | ITA | CHAMBER | 2,017 | CASE OF CIRINO AND RENNE v. ITALY | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Ksenija Turković | 6. The first applicant was born in 1978 and lives in Turin. The second applicant was born in 1975 and was detained in Turin up to the time of his death on 10 January 2017. 7. In 2004 the applicants were detained in the Asti Correctional Facility. 8. On 10 December 2004 the second applicant intervened in a fight that had broken out between the first applicant and a prison officer. 9. The manner in which the impugned events occurred, as submitted by the applicants and as it emerges from their witness statements during the domestic proceedings, may be summarised as follows. 10. On 10 December 2004, following an altercation with the prison officer, the first applicant was summoned to a meeting with the correctional unit commander (comandante di reparto della polizia penitenziaria). Before he reached the commander’s office, he was stopped by a group of prison officers, who took turns beating him. Following the meeting, he was stripped of his clothes and led to a cell in the solitary confinement wing. 11. The only item of furniture in the cell was a bed with no mattress, bed linen or covers. As to sanitary facilities, the cell had a squat toilet without running water and was not equipped with a sink. The cell window had no window panes and the only source of heating was a small, malfunctioning radiator, which provided little protection against the December weather. For a number of days, although it is unclear for how many exactly, he was left naked. 12. During the first week of his detention in solitary confinement no food was provided and he was given only scant amounts of water. He was subsequently given rationed quantities of food. 13. He was beaten on a daily basis, several times per day. He was repeatedly punched, kicked and hit in the head by prison officers, who assaulted him in groups of varying sizes. 14. He was also subjected to sleep deprivation, as the beatings often took place at night and the prison officers verbally abused him in order to keep him awake. 15. During the detention in solitary confinement the applicant did not receive visits from his lawyer or his family. 16. On 10 December 2004, following the same altercation with the prison officer, the second applicant was stripped of his clothes and led to a cell in the solitary confinement wing of the correctional facility. The bed in the cell had no mattress, sheets or covers, and the cell had no sink. Initially there were no panes in the windows, which were covered with some plastic sheeting after an unspecified number of days. For a number of days, although it is unclear for how many exactly, he was left naked. He was subsequently given some light clothing. 17. The applicant’s food was rationed, and at certain times he was given only bread and water. On some days he received no food at all. 18. The applicant was beaten by prison officers, often more than once per day. He was subjected to various forms of physical violence, including being repeatedly punched, kicked and slapped, at one point with his head being pinned to the ground by one of the prison officers’ boots. The beatings occurred both during the day and at night. The applicant was beaten by four or five officers at a time. One prison officer ripped out a chunk of his hair. 19. On 16 December 2004 he was admitted to the hospital. 20. During the period he spent in solitary confinement he was only allowed outside the cell twice, once to shower and once for some outdoor time. 21. A criminal investigation into the impugned treatment was launched in 2005. It was initiated when it emerged, in the context of covert surveillance in an operation to investigate drug smuggling in the Asti correctional facility, that a number of the prison officers had discussed the ill-treatment inflicted on the applicants. 22. On 7 July 2011 five prison officers, C.B., D.B., M.S., A.D., and G.S., were committed for trial. They were charged with ill-treatment of the applicants under Article 572 of the Italian Criminal Code (“the Criminal Code”), in conjunction with Article 61 § 9 of the Criminal Code, a provision which considers the commission of an offence by a civil servant abusing his or her position to be an aggravating circumstance. 23. On the same date the applicants joined the proceedings as civil parties. 24. The Asti District Court’s judgment was delivered on 30 January 2012. Its findings may be summarised as follows. 25. As to the establishment of the facts concerning the ill-treatment, the court found that the evidence gathered during the investigation and produced at the trial showed that the events had occurred in the manner described by the victims in their submissions during the trial. The Court relied on statements to the effect that the applicants had been subjected to physical and verbal abuse, coupled with the deprivation of food, water, sleep, and clothing, and had been detained in cells without adequate access to sanitation, heating, and bedding. 26. The court further found it to be established beyond reasonable doubt that the applicants had been subjected not merely to isolated acts of harassment and abuse, but to repeated ill-treatment which had been put into practice in a systematic manner. 27. More specifically, the court found it established beyond reasonable doubt that the first and second applicants had been subjected to repeated physical violence from 10 to 29 December 2004 and from 10 to 16 December 2004 respectively. The court found that the beatings occurred regularly at all times of the day, and particularly at night. 28. The court noted that the second applicant had been admitted to the emergency room of the Asti Civil Hospital on 16 December 2004 with traumatic injuries. With regard to the first applicant, the court acknowledged his hospitalisation following the events without citing a date or specific medical documentation to this effect. 29. Moreover, the court found it to be established beyond reasonable doubt that in 2004 and 2005 in the Asti Correctional Facility there had existed what it defined as a “generalised practice of ill-treatment” that had been systematically inflicted on prisoners considered to be problematic. Measures which the court defines as exceeding the bounds of permitted disciplinary or security measures were routinely taken to punish and intimidate problematic detainees and to deter other disorderly behaviour. As part of this practice, a detainee would generally be taken to a cell in the solitary confinement unit where he would be subjected to repeated harassment and abuse by prison officers. The abuse would primarily take the form of physical violence, as detainees would be beaten by groups of prison officers, often during the night. In addition, detainees would be routinely subjected to sleep, food and water deprivation, and would also be denied access to sanitary facilities. 30. The court further found ample evidence that the prison officers operated in a climate of impunity. This was due, in the court’s view, to the acquiescence of high-level prison administrators and the complicity that existed among prison officers. 31. It emerges that the court ordered an inspection of the correctional facility, including the solitary confinement wing, during the course of the trial. The court found that several cells in the solitary confinement wing of the Asti Correctional Facility were unfit for holding detainees. Some did not have bed linen, mattresses, sanitary facilities or heating. Although the windows in some cells had no panes and others had windows covered by metal plates with small perforations, the cells were nonetheless used during the winter months. Some cells were equipped with a bed and a squat toilet but no other furniture or sanitary facilities. 32. Following the establishment of the facts, the court went on to assess responsibility for the established conduct. In this regard, G.S. was acquitted as to his involvement in the ill-treatment, and A.D. and D.B. were acquitted of the charge of ill-treatment under Article 572 of the Criminal Code. The court nonetheless held that the conduct of A.D. and D.B. amounted to infliction of bodily harm contrary to Article 582 of the Criminal Code. However, it ordered that the proceedings against them be discontinued due to the expiry of the applicable time-limit as laid down in the statute of limitations. 33. With respect to C.B. and M.S., the court held that there existed sufficient evidence to conclude that they had been responsible for most, if not all, of the acts of physical, psychological, and “material” abuse at issue. The court then considered that the acts at issue could be classified as torture pursuant to the definition provided by the United Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It went on to observe that Italy had failed to incorporate the offence of torture into national legislation, in breach of its international obligations. It was therefore obliged to conclude that, under Italian law, there existed no legal provision that would allow it to classify the impugned conduct as acts of torture. 34. Having taken note of the above-mentioned considerations, the court proceeded to assess which existing offence was more suitable in respect of the legal classification of C.B. and M.S.’s conduct. When conducting its assessment, the court relied on the conclusion that the primary purpose of the impugned treatment was to punish the applicants, to “maintain order” in the correctional facility, and to convey a clear message to the other detainees. 35. The court considered that the conduct of the two prison officers thus fell most appropriately within the scope of Article 608 of the Criminal Code, which deals with abuse of authority against arrested or detained persons. However, the statutory limitation period for the offence in question had elapsed, as the court had found no procedural action which would have the effect of interrupting it. The court stated that C.B. and M.S. were also responsible for the infliction of bodily harm, but that, as the statute of limitations was applicable to that offence as well, such a finding did not alter the substance of the decision. The court therefore ordered that the proceedings against C.B. and M.S be discontinued because the applicable time-limit as laid down in the statute of limitations had expired. 36. On 22 February 2012 the public prosecutor lodged an appeal with the Court of Cassation, arguing that the Asti District Court had erred in the legal classification of the offence with respect to C.B. and M.S. The prosecutor contended that the most appropriate offence for the purposes of classification of the conduct in question would have been aggravated illtreatment under Article 572 of the Italian Criminal Code ‒ as initially identified in the bill of indictment ‒ in conjunction with Article 608 of the Criminal Code. 37. By a judgment issued on 21 May 2012, and filed with the court Registry on 27 July 2012, the Court of Cassation declared the public prosecutor’s application inadmissible. The court expressed its agreement with the prosecutor’s contention as a matter of principle but, as the statute of limitations had been likewise applicable to the offence of aggravated illtreatment, a decision in favour of the prosecution would have been devoid of any practical effect. 38. On 26 July 2012 C.B. lodged an objection to execution (incidente d’esecuzione) with the Asti District Court, arguing that its decision of 30 January 2012 (see paragraph 24 above) could not be considered as final and binding insofar as he was concerned, as the decision had not been properly served on him. 39. In a decision issued on 31 October the Asti District Court dismissed C.B.’s objection on the grounds that C.B. must have had cognisance of the decision at the moment the public prosecutor lodged an appeal with the Court of Cassation (see paragraph 36 above) or, at the latest, when his representative filed a defence brief at a hearing before the Court of Cassation in May 2012. 40. On 26 July 2012 C.B. appealed against the decision before the Court of Cassation. 41. In a judgment delivered on 11 July 2013, and filed with the Registry on 1 August 2013, the Court of Cassation granted the appeal. It found that the failure to serve the decision on C.B. could not be remedied by C.B.’s potential knowledge of the decision at a later stage, as argued by the District Court. The Asti District Court judgment of 30 January 2012 could not, accordingly, be considered final and binding insofar as C.B. was concerned. 42. Based on the latter decision, on 10 October 2013 C.B. lodged an appeal against the Asti District Court judgment of 30 January 2012 with the Turin Court of Appeal, seeking an acquittal. 43. No further information has been provided by the parties as to the outcome of the proceedings. 44. In their observations of 31 March 2016, the Government indicated that four prison officers had undergone disciplinary proceedings in connection with the impugned events and by different decisions issued on 29 January 2013 the following disciplinary sanctions had been imposed: – C.B. was dismissed from his functions (destituito dal servizio). He was, however, reinstated on 26 November 2013, following the Court of Cassation judgment of 11 July 2013 which suspended the binding nature of the Asti District Court’s judgment (see paragraph 41 above); – M.S. was dismissed from his functions; – A.D. was suspended from duty for a period of 4 months; – D.B. was suspended from duty for a period of 6 months. 45. According to a document issued by the Staff Director of the Prison Administration Department of the Ministry of Justice on 12 October 2015, and furnished by the Government, the four prison officers were not suspended from duty (sospensione precauzionale dal servizio) during the course of the investigation or the trial. 46. At the Court’s request, the Government submitted extracts from the prison medical record of the second applicant between 26 November 2004 and 5 March 2005 and typed copies of his hospitalisation record of 16 December 2004. 47. The prison medical record indicates that on 13 December 2004 the second applicant was examined visually (whilst still “behind bars”). He complained of pain in the thoracic area and right ear. The reporting physician noted the presence of ecchymoses and haematomas around the patient’s ribcage. He recommended a more thorough medical examination and/or transfer to the infirmary. 48. The record further indicates that another visual examination (also “behind bars”) took place on 15 December 2004. The information in this entry is the same as in the previous entry. Transfer to the infirmary for a medical examination was recommended. 49. On 15 December 2004 the record shows that the applicant underwent a medical examination in the afternoon. The physician reported ecchymoses on the patient’s ribcage and in the retroauricular region. Palpation of the patient revealed diffuse pain. The reporting physician recommended that Xrays be performed for a suspected fracture. Painkillers were administered. 50. The entry of 16 December 2004 reports the applicant’s transfer to the emergency room of the Asti Civil Hospital as a consequence of traumatic injury. 51. According to the medical record of the Asti Civil Hospital, an X-ray revealed a fractured rib and the medical examination disclosed diffuse bruising in the thoracic and abdominal area and pain on palpation. The record states that the applicant told the doctor his injuries occurred as a consequence of an accidental fall. 52. The prison medical record entry on the applicant’s discharge from the hospital on 16 December 2004 shows that he was prescribed painkillers. 53. As to the first applicant, no copy of the prison medical register had been submitted by the Government, notwithstanding the Court’s request for such information. | 1 |
test | 001-146487 | ENG | TUR | CHAMBER | 2,014 | CASE OF MANSUR YALÇIN AND OTHERS v. TURKEY | 3 | Remainder inadmissible;Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Respect for parents' philosophical convictions;Respect for parents' religious convictions) | András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 5. The applicants live in Istanbul. They are followers of the Alevi faith. Mr Mansur Yalçın, Mr Yüksel Polat and Mr Hasan Kılıç all had school-age children. More specifically, E. Polat (Yüksel Polat’s daughter), who completed her secondary schooling in 2007, G. Kılıç (Hasan Kılıç’s son), who completed his secondary schooling in 2010, and T. Yalçın (Mansur Yalçın’s daughter), who completed her secondary schooling in 2010, were attending a secondary educational establishment at the relevant time. Mr Sofuoğlu stated that, at the time the domestic proceedings were instituted, his son and daughter had completed the second cycle of secondary education and were in higher education. Ms Serap Topçu and Ms Eylem Onat Karataş, meanwhile, stated that they had attended “compulsory religious culture and ethics classes” at school and that their young children – whose ages they did not specify – would likewise have to attend those classes when they went to school. 6. In Turkey, school attendance is compulsory for all children between the ages of 6 and 13. For the first four years, children attend primary school (Years 1 to 4). The following four years are spent in the first cycle of secondary school (Years 5 to 8). After that, pupils spend a further three or four years in school, depending on the subjects chosen, in an upper secondary school (lise). 7. On 22 June 2005 the applicants asked the Ministry of Education to initiate a consultation process with Alevi faith leaders with a view to overhauling the syllabus for religious culture and ethics classes and including Alevi culture and philosophy. They also requested the introduction of compulsory training for teachers of these classes and the setting-up of a monitoring and supervisory mechanism. They cited in that regard extracts from monitoring reports prepared by the European Commission which were critical of the content and the compulsory nature of the religious culture and ethics classes. 8. In its reply of 15 July 2005 the Religious Education Department of the Ministry of Education (“the Department”) stated that, in the textbooks used in religious culture and ethics lessons in the primary cycle, priority was given to the teaching of ethical and religious values common to society as a whole. As to the content of the classes at secondary level, the Department stated that, while respecting the same principles, the syllabus took a supradenominational approach (mezhepler üstü) and that the religious culture and ethics textbooks also presented other understandings of Islam. It added that the syllabus for the 2005/06 school year had been drawn up on the basis of this supra-denominational approach, which according to the Department was centred on the Koran, did not favour any particular branch of Islam and respected the principle of secularism. The Department also mentioned that the syllabus for Year 9 (the first year of upper secondary school) featured public figures who had been important in shaping the Turkish understanding of Islam, while the syllabus for Year 11 explained the different interpretations of Islam, and the Year 12 syllabus contained a wealth of information on Alevi-Bektashi (bektaşi) culture. In the same letter, the Department further specified that teacher training had been introduced ahead of the entry into effect of the new syllabus. Lastly, it observed that topics relating to the Alevi faith had been included in the religious culture and ethics syllabus for secondary schools for the 2005/06 school year. 9. After receiving the letter from the Department rejecting their proposal, the applicants and 1,905 other people challenged the Department’s decision in the Ankara Administrative Court. Referring to the Court’s caselaw on the subject, they argued that the teaching provided in religious culture and ethics lessons could not be said to satisfy the criteria of objectivity and pluralism. In support of their argument they presented six reports drawn up by various experts who had studied the textbooks used for the subject. Referring to the findings of those reports, they maintained that the textbooks in question provided instruction based on a “Sunni” interpretation of Islam and could by no means be regarded as neutral visàvis other interpretations of Islam. They relied in particular on Articles 9 and 14 of the Convention and Article 2 of Protocol No. 1 to the Convention. 10. The Ankara Administrative Court appointed of its own motion a committee of three experts tasked with drawing up a report on the teaching provided in the context of religious culture and ethics classes. 11. On an unspecified date a nine-page report written by a professor of Kalam (Islamic religious studies), a professor of education and a professor of religious sociology was added to the case file and sent to the applicants. The report stated in substance as follows. (i) For the purposes of the study the experts had examined the religious culture and ethics textbooks used in schools by Years 4, 5, 6, 7, 8, 10 and 11 as authorised by the Ministry of Education. The religious culture and ethics syllabus for primary schools had been adopted by a decision of 28 December 2006 of the Supreme Council for Education attached to the Ministry of Education and had been introduced in the 2007/08 school year to replace the previous syllabus of 19 September 2000. The new secondary syllabus had come into effect following a decision of 31 March 2005. The textbooks criticised by the applicants had therefore been prepared under the earlier syllabus. (ii) The textbooks were structured around three main themes: religious culture, ethics and national and spiritual values. The parts concerning ethics and national and spiritual values covered topics common to all citizens. The part concerning religious culture had been drafted using a supradenominational approach centred on fundamental concepts such as the Koran and the Sunnah (Sünnet), and did not favour any particular branch of Islam. (iii) The syllabus did not give precedence to any particular faith. On the contrary, the textbooks reflected a supra-denominational approach. The syllabus observed the principle of objectivity and did not give priority to any faith or any religious group. The textbooks and the syllabus were designed to deliver information on Islam using pedagogical methods. (iv) The use of the religious culture and ethics textbooks written by M. Şahinbaş and A. Kabakçı for Years 4, 5, 6, 7 and 8 had been discontinued in the 2007/08 school year following the changes to the syllabus. They had been replaced by new textbooks written by Ministry of Education committees. The same was true of the textbooks for upper secondary schools, which had been replaced in the 2006/07 school year. In drawing up the new syllabus implemented in the 2006/07 school year, the Ministry of Education had taken full account of the points raised by the applicants. (v) Unlike the former syllabus, the new syllabus covered topics such as the principles of the Alevi faith, the worship, mystical philosophy, ethical understanding, prayers (niyaz) and collective prayer (cem) of followers of the Alevi faith, and also Alevi principles and rites such as the twelve religious services (12 hizmet), the path to God, the Hizir and Muharram fasts (Hızır ve Muharrem orucu), the four gates (4 kapɪ) and forty levels (40 makam), the three Sunnahs (3 sünnet) and the seven obligations (7 farz). In the course of preparing the school textbooks and choosing the topics relating to the Alevi faith, worship and ethics, extensive recourse had been had to publications written by prominent Alevis. (vi) While the teaching of religion as such took account of the precepts of the Koran and the life of the prophet Mohammed, the other interpretations of Islam were covered in the context of cultural information. Hence, the textbooks provided information on Alevism, Jafarism (caferilik), Hanafism (hanefilik), Shafism (şafilik), Shiism (şiilik) and the Sufi movements. They also provided teaching on the foundations of Islam and in particular the five prayers, pilgrimage, charity and sacrifice. Around thirty pages were devoted to the Alevi faith. (vii) In conclusion, the report recommended the addition of references to certain aspects of the Alevi faith, for instance festivals, and specified that the cemevi was a place of cultural exchange for Alevis rather than a place of worship. 12. On 14 September 2009 the applicants contested the expert report and filed additional pleadings. They submitted that the teaching that was provided focused on the Sunni interpretation of Islam and that the Alevi faith was presented in summary fashion. Providing examples, they argued that much of the information presented contained errors. In particular, they claimed that the symbols linked to their faith had been ignored and that the mosque was presented as the Muslim place of worship. They asserted that certain Sunni Muslim rituals, namely the prayers or Salat (namaz) and ablutions (abdest) were imposed and were presented according to the Sunni interpretation of Islam. They also complained that the experts had denied that the cemevi was the Alevis’ place of worship. They criticised the Year 5 textbook, in which the main rituals of Islam were reportedly listed as Salat, fasting, pilgrimage and charity, arguing that the information provided was confined to the Sunni interpretation of Islam, whereas, in their view, a theological debate was under way as to how Salat should be performed. Lastly, they alleged that the textbooks in question treated the Alevi faith as a tradition or culture rather than as a fully-fledged faith. 13. In a judgment of 1 October 2009 the Ankara Administrative Court rejected the applicants’ claims on the ground that the refusal of their request by the respondent authorities had conformed to the relevant legislation. The court referred to the findings of the report on the teaching of religious culture and ethics (see paragraph 11 above), taking the view that religious subjects were dealt with using a supra-denominational approach in the textbooks for both the old and the new syllabus. The court considered that the principle of State neutrality had thus been respected and that the new topics had been chosen taking into account the country’s educational needs. 14. The applicants lodged an appeal on points of law against the firstinstance judgment. 15. In a judgment of 13 July 2010, which was served on 2 August 2010, the Supreme Administrative Court dismissed the appeal on points of law and upheld the first-instance judgment, which it considered to be in conformity with both the procedure and the law. 16. The Government provided the following additional information. Between June 2009 and March 2011 a large number of workshops (çalıştay) had been held in Turkey, attended by leaders of the AleviBektashi and other faiths, with the aim of examining issues concerning the Alevi community. The topics covered included the teaching of religious culture and ethics in primary and secondary schools. Following these workshops it was decided that the Ministry of Education would overhaul the existing syllabus. A special meeting was organised, chaired by the Secretary of State and attended by the leaders of different faith groups in Turkey and Ministry of Education experts. It was decided at the meeting that the process of overhauling the syllabus would be overseen by the Ministry’s Religious Education Department. 17. A series of meetings was held within the Religious Education Department, designed to allow an exchange of views and to identify the wishes of the different faiths. The meetings were attended by AleviBektashi, Jafari and Alawi (nusayri) leaders and examined the current syllabus and textbooks. In addition, on the basis of the findings of a report prepared by the Alevi-Bektashi, Jafari and Alawi representatives, the syllabus and the textbooks were amended in order to respond – in large part, in the Government’s submission – to the concerns expressed by the leaders of those communities. The new religious culture and ethics textbooks were introduced at the start of the 2011/12 school year. After overhauling the syllabus the national authorities organised training seminars throughout the country for teachers of the subject. 18. In Turkey, pupils belonging to the Jewish and Christian faiths are exempted from religious culture and ethics classes in accordance with decision no. 1 of 9 July 1990 of the Supreme Council for Education. The latter decided on 25 June 2012 and 14 August 2012 to draw up a religious instruction syllabus specifically designed for Jewish and Christian pupils in primary and secondary schools. To that end, a meeting was held in Istanbul on 10 and 11 September 2012 with Christian spiritual leaders. The national authorities also appointed a university-based coordinator to oversee preparation of the syllabus. At the meetings concerning the new syllabus it was made clear that the spiritual leaders of the faiths concerned were free to design the programme of religious instruction in accordance with their own beliefs, lifestyles and traditions. Accordingly, the Christian representatives sent a draft syllabus to the Ministry of Education and the Jewish representatives informed the Ministry that their syllabus was being finalised. The draft syllabuses will be discussed at a meeting to be attended by representatives of the faiths concerned with a view to adoption of a final version. 19. The Government produced before the Court a document drawn up by the Religious Education Department of the Ministry of Education. According to this document, those responsible for preparing the syllabus had taken care in drawing it up not to favour a particular faith but instead to adopt a supra-denominational approach. The document also stated that the wishes of the different religious groups had been taken into account and that the children of Alevi citizens were not forced to follow a particular religious teaching or practice. It further specified that the new syllabus had been adopted on 30 December 2010 and had been introduced at the start of the 2011/12 school year. The document was accompanied by a summary of the new course content and extracts from the textbooks dealing with the various interpretations of Islam. It explained, among other things, that topics relating to the Alevi-Bektashi, Jafari and Alawi communities had been incorporated in the syllabus and textbooks in question. Those topics are set out below. The textbooks for Years 4 and 5 proposed activities related to the sayings of Ali (son-in-law of the Prophet Mohammed). They also contained passages concerning the importance attached to cleanliness by Haci Bektaş Veli (a leading Sufi and founder of the Bektashi brotherhood in the fourteenth century). Under the heading “Different examples of prayers in our culture”, they dealt with the various interpretations of certain surahs and Alevi-Bektashi prayers. They also referred to the significance of certain days and nights in that faith. The Year 6 textbook dealt with the five compulsory prayers (namaz) and the call to prayer (ezan) and also took Jafari practice into account. It further referred to the role and importance of Ali in Islam. Lastly, it presented leading figures like Ali er-Riza, Ahmet Yesevi and Haci Bektaş Veli, who had contributed to the adoption of Islam in Turkey. In the textbook for Year 7, an item concerning the Muharram fast had been added to the chapter on fasting, which also contained an account of the Battle of Karbala. The chapter entitled “Different interpretations within Islam” explored the Alevi-Bektashi faith. This last section addressed the following topics: the different types of cem, the twelve religious services, the semah, the spiritual brotherhood (musahiplik), prayers and the Hizir fast. These topics were also covered in the Year 12 textbook. Lastly, the textbooks for Years 9, 10 and 11 presented important figures in the Alevi-Bektashi faith and, in different passages, highlighted the role and importance of Ali in Islam. 20. The applicants submitted three documents in particular to the Court. The first was a research report compiled for the “Educational reform initiative” (Eğitim Reformu Girişimi) by Ms M. Yıldırım, an expert on religious freedom and director of the “Initiative for freedom of religion and beliefs in Turkey”. The report is entitled “An assessment of the religious culture and ethics syllabus for the 2011/12 school year” (2011-2012 Öğretim Yılında Uygulanan Din Kültürü ve Ahlak Bilgisi Dersi Programına İlişkin bir Değerlendirme). After analysing the religious culture and ethics syllabus for the 2011/12 school year, the expert went on to state as follows: “Syllabus for Years 1 to 8 If we compare the new syllabus for religious culture and ethics with the previous one, we can see that the changes made do not amount to a thorough overhaul based on principles such as impartiality and objectivity. The changes consisted mainly in adding some new information and moving a few chapters. Among the additions, a long chapter is now devoted to the different interpretations of Islam and certain traditions within Islam (primarily the Alevi-Bektashi and Jafari traditions), including terminology, practices and references. As to the overall content in terms of the teaching goals and the areas covered, the values and concepts dealt with in the syllabus remain close to those in the previous syllabus and no major changes have been made. Reading materials have been added at the end of each chapter in order to reinforce what has been learnt. In addition, certain principles are spelled out, for instance ‘Pupils shall not be compelled to follow religious practices’ and ‘Pupils shall not be required to learn verses or hadiths by heart or to copy out prayers and surahs other than those contained in the textbooks’ ... Year 7 ... The chapter devoted to the different interpretations of Islam in the old Year 8 syllabus ... is now on the syllabus for Year 7. As to the content, the following topics have been added: ‘The Sufi interpretations of Islam ...’ and ‘The fundamental concepts in the Alevi-Bektashi tradition’. In the same chapter, the notion of a ‘branch’ (mezhep) has been replaced by that of ‘religious interpretation’. With regard to the Alevi-Bektashi tradition, it is stated explicitly that only the following concepts will be covered: ‘cem, cemevi, rizalik, kul hakki, the twelve services, semah, spiritual brotherhood, gülbenk and the Hizir fast’ and that ‘the cemevi is to be considered as the place where the cem takes place’, thereby avoiding stating that the cemevi is a place of worship. ... Syllabus for Years 9 to 12 If we compare the new religious culture and ethics syllabus with the previous one, we can see that, as for the other year groups, the changes made do not amount to a thorough overhaul based on principles such as impartiality and objectivity, but consist in a number of additions and the moving around of a few chapters. ... Year 12 ... We can observe that, as regards the acquisition of knowledge through revelation (vahiy) and through reason, the content of the chapter headed ‘Sufi interpretations in Islamic thought’ has been enhanced. [It covers topics] such as ‘The role and importance of ethics in Sufi thought ...’, ‘Different types of cem’, ‘Concepts such as semah, spiritual brotherhood and gülbenk’, ‘The importance of the month of Muharram and of Ashura in our culture’ and ‘The nusayri’ ... The activities include one entitled ‘Learning about the Sufi interpretations’, and it is stated that pupils will be asked to research one of the following topics: the yesevilik, the mevlevilik and the Alevi-Bektashi faith ... . It is [also] stated that topics such as ‘The role of Haci Bektaş Veli in the Bektashi understanding and in the development of the Alevi faith’ will be covered and that ‘in terms of its fundamental underpinnings, the nusayri faith is structured around the Koran ...’. ... ... Can the syllabus for the compulsory classes in religious culture and ethics be said to be compatible with the Toledo principles? An analysis of the course content shows that it combines elements of ‘classes on a given religion from the perspective of that religion’, ‘classes providing limited, but relatively objective information on other religions’, ‘classes in ethics rooted in a particular religion’ and ‘classes on Islamic-Turkish civilisation’ rather than classes on religions. In that connection, the syllabus does not state that the course comprises classes on religions; on the contrary, it is stated that it is a course of ‘religious instruction. In Article 24 of the Constitution, the term used is ‘instruction in religious culture’, referring to a knowledge of religious culture drawing on a variety of sources, as opposed to ‘religious instruction’ (see Supreme Administrative Court judgments E.2006/6 – K.2007/481, 28 December 2007, and E.2007/679 – K.2008/1461, 29 February 2008). Moreover, the same Article contains another provision dealing specifically with ‘religious instruction’. In the syllabus, the word ‘religion’ is commonly used to denote Islam, but is sometimes, confusingly, used in the general sense. The most significant changes in the new syllabus compared with the previous one lie in the addition of terminology, practices and references relating to other interpretations or traditions within Islam. One does not need to be an expert in theology to conclude that the approach, structure and priorities have remained the same, with the diversity existing within Islam being reflected only in a few additions to the previous syllabus. Brief analysis in the light of the Toledo principles According to the Toledo principles, teaching about religions should be sensitive, balanced, inclusive, non-doctrinal, impartial, and based on human rights principles relating to freedom of religion or belief. ... Non-doctrinal The changes made to the syllabus and textbooks are not such as to alter the doctrinal nature of the classes. The expressions ‘our religion’, ‘our divine scripture’ and ‘our prophet’ are used frequently and are taught as religious dogma. Impartial The State’s duty of impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs. However, the fact of stating that the cemevi is a place where the cem is practised amounts to an assessment. The rejection of the generally accepted idea among Alevis that the cemevi is a place of worship is incompatible with the State’s duty of impartiality ... ... Assessment of the content in the light of the legal requirements – the State, parents and children ... The fact that, at both primary and secondary level, religious culture and ethics classes are compulsory and include the dogmas and practices of the Muslim faith, and that the children are assumed to be followers of that faith, is liable to result in situations of conflict with parents’ religious and philosophical beliefs... Likewise, the use of expressions such as ‘our religion’, ‘my religion’, ‘our sacred book the Koran’ and ‘our prophet’, and the teaching of the surahs of the Koran and the practice of Salat (namaz) mean that parents who do not subscribe to the Muslim faith may find their children receiving instruction other than that which they wish to pass on to them. Furthermore, the fact that the surahs of the Koran and the practice of Salat are regarded as [knowledge] to be acquired means that children are liable to face a conflict of allegiances with the beliefs handed down by their parents, in breach of the individual’s right not to be compelled to act in a manner running counter to his or her own convictions. ... In sum, the changes made to the syllabus for religious culture and ethics are not sufficient to put an end to the violation of parents’ right to ensure [their children’s] education in conformity with their own religious and philosophical convictions ... Conclusion Looking at the changes implemented in 2011/12, there has been some progress towards the desired goal, which is to ensure pluralist religious teaching, in so far as the compulsory classes in religious culture and ethics reflect the diversity existing within Islam in Turkey. These classes have also maintained their particular feature of dispensing both ‘teaching of the Muslim religion’ and ‘teaching of other religions’...” 21. The second document provided by the applicants was a study entitled “Issues regarding religion classes” (Din Dersi Sorunu), prepared on 23 January 2013 by M.K. Kılıç, a teacher of religious culture and ethics and education secretary of the teachers’ trade union Eğitim-İş. The parts of the study relevant to the present case read as follows: “... From the fourth year of the primary cycle until the end of upper secondary school, the syllabus for the classes in religious culture and ethics has been devised on the basis of the Sunni-Matrudi-Hanafite understanding of Islam. Either no instruction is given concerning other branches of Islam or these are considered as dissident branches (aykırı görüş). The main focus is always on Sunni Islam. Hence, the syllabus has not been prepared using a supra-denominational approach, but on the basis of a wholly denominational one (mezhepçi). ... In the textbooks, the Alevi faith is not regarded as a branch of Islam (mezhep). The syllabus deals only with the cultural aspects and folk traditions. In the textbook used in Year 7, in the chapter entitled “Interpretations within Islamic thought”, the Alevi faith is not regarded either as an interpretation of the faith (itikadi mezhep) or as a theological interpretation (fikhi yorum). It is described instead as a Sufi interpretation, with the result that it is not seen as one of the main branches like Sunnism or Shiism. In the syllabus for Years 7 and 12, the Alevi faith is placed in the same category as the Sunni brotherhoods (Sünni tarikatlar), that is to say, in a subcategory vis-à-vis the main branches, which reduces its value. From both a faith-based and a theological perspective, however, the Alevi faith is an independent branch of Islam. [It is true that], ... in the Alevi faith, the mystical and Sufi interpretation predominates. However, presenting this faith solely as a Sufi entity does not reflect the reality... In sum, in the syllabuses and textbooks for the classes in religious culture and ethics: 1. The Alevi faith is not considered as a branch of Islam in its own right, unlike Sunnism and Shiism. 2. Directly or indirectly, pupils are taught that the Alevi faith is a Sufi movement and that its rites are merely cultural and folk rituals rather than fundamental rites of Islam. 3. The Alevi faith is not recognised as a branch (mezhep) of Islam; the tenets of its faith and beliefs are disregarded. 4. Likewise, the following facts are not acknowledged: the cem, which is the fundamental prayer of the Alevi faith, is the equivalent of the Salat (namaz) of the Sunnis and Shiites. The Alevis’ Muharram fast is the equivalent of Ramadan. The cemevi, the Alevi place of worship, is the equivalent of the Sunni or Shiite mosque. The semah is not a cultural or folk ritual, nor is it a zikr (or dhikr) ceremony (a ritual prayer or litany practised by the Sufi brotherhoods); it is actually a form of prayer. 5. The saz or bağlama is a sacred instrument for Alevis. The Alevi faith is inseparable from [this instrument]. ... If the syllabus and textbooks for this course are revised in a manner which takes account of these factors, the issue as regards Alevis [in relation to this course] can be considered to have been largely resolved.” 22. The third document was a study entitled “Compulsory classes in religious culture and ethics: between pluralist ‘supra-denominationalism’ and majority confessionalism”. It was prepared in January 2013 by A. Yaman, professor at Abant İzzet Baysal University and Chair of Political History, who is also an Alevi leader, more specifically a dede (religious and spiritual leader). The parts of relevance to the present case read as follows: “...The syllabus for the compulsory classes poses the greatest difficulties for Alevis, as the course content and the training given to the teachers are not compatible with the Alevi approach. The teaching is dispensed by staff whose background is in Sunni beliefs and culture and who are graduates of the imam-hatip (imam and preacher) schools or the faculties of theology, where they follow a curriculum [in line with Sunni beliefs and culture]. Such an arrangement may be regarded as suited to the needs of Sunni citizens ... but it can hardly be acceptable for the same syllabus to be taught to Alevis. It is clear from recent developments that the argument that the course content is ‘supra-denominational’ is false. In that connection, why is it that the textbooks which in 2005 were supposedly ‘supra-denominational’ were amended in 2008 and 2011, with passages on the Alevis being added following the meetings? One particular – and admittedly perfectly respectable – school of religious thought predominates in this course, and the Alevi faith is not adequately represented. Alevi children are caught in a stranglehold between the information they receive at school and that which is handed down by their families. Furthermore, problems arise with certain teachers ... ... Taking into account the proposals made by the commission [responsible for revising the content of the syllabus] which was set up following the workshops on Alevi issues (Alevi calıştayları) – and some of whose meetings I myself attended – a collection of the proposed amendments to the textbooks was sent to the Minister of State. [Subsequently] ..., some changes were made to the textbooks for Years 4, 5, 6, 7, 8 and 13 published in 2011. However, if we compare the proposals and the changes actually made, we can see that the number of changes is not nearly sufficient, and that a strategy was adopted that was restrictive and/or sought to exclude certain elements (dışlayıcı). This is naturally a source of dismay. [I think it is fair to say that] the fact that the basic Alevi form of worship, the cem, is presented in the Year 7 and Year 12 textbooks under the section devoted to religious interpretations rather than in the chapter on worship clearly demonstrates that [the syllabus] was not devised on the basis of a supra-denominational approach and that the textbooks were written from a specific perspective. ... ...The commission’s proposal to recognise ‘the cemevi [as] a place of worship’ was disregarded ... Moreover, it is interesting to note that, whereas Salat is explained in detail using drawings [in the Year 5 textbook] and that, under the heading ‘Learning about the mosque’ [the different parts of the mosque] are illustrated with drawings and poems, no description is provided of any Alevi institution or rule. In these compulsory classes, Alevi pupils can learn about the main forms of worship only according to the Sunni understanding of Islam... Although the commission presented proposals concerning the inclusion of topics relating to the cem and the other Alevi forms of worship [in the chapter on worship of the Year 6 textbook], the approach adopted consists in stating that ‘worship takes the form of Salat’... The Alevi faith is presented in the context of the spiritual brotherhoods and Sufism, including the naksilik and kadirilik brotherhoods, etc., instead of featuring in the chapter on beliefs and worship. [Hence] the cemevi is presented merely as a gathering place for the brotherhoods ...” 23. The Government expressed doubts as to the objectivity and impartiality of the expert reports submitted by the applicants. They maintained in particular that the documents entitled “An assessment of the religious culture and ethics syllabus for the 2011/12 school year” and “Issues regarding religion classes”, submitted by the applicants, were not the work of academics. | 1 |
test | 001-147012 | ENG | LTU | CHAMBER | 2,014 | CASE OF PAPLAUSKIENĖ v. LITHUANIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens | 5. The applicant was born in 1932 and lives in Vilnius. 6. By a decision of 18 June 2002 the Vilnius Region Administration restored the applicant’s property rights to 0.23 hectares of land in the context of restitution of property rights which had been violated by the unlawful nationalisation during the Soviet regime. Subsequently, the plot of land was registered in the land registry in her name. 7. On 15 July 2002 the applicant sold the plot of land for 76,000 Lithuanian litai (LTL; approximately 22,000 euros (EUR)) to two private buyers, E.T. and D.Z., who became the owners of the plot. 8. In August 2003 the Vilnius Region Administration found that a mistake had been made in granting the plot of land to the applicant and notified her and, later, the public prosecutor. 9. In June 2004 the public prosecutor initiated civil proceedings to have the decision of 18 June 2002 and sale contract annulled on the ground that in 1993 part of the same plot of land had already been sold by the State to a private buyer, R.G. Moreover, the plot was situated in a community garden (sodininkų bendrija) and therefore the former owner’s rights to it could not be restored under the Law on the Restoration of Citizens’ Rights of Ownership to Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas – hereinafter “Law on Restitution”). 10. At the same time criminal proceedings had been instituted into possible forgery of the documents. However, suspicions with regard to the applicant were not confirmed, and the proceedings were discontinued in July 2006. 11. The Vilnius Region Administration acknowledged that the plot of land had been assigned to the applicant unlawfully. 12. On 20 August 2004 assets belonging to the applicant amounting in value to LTL 76,000, including bank deposits and her pension, were seized to ensure satisfaction of the prosecutor’s civil claim. 13. On 5 May 2005 the Vilnius 1st City District Court granted the prosecutor’s claim. The transfer of title involving the plot of land was annulled. Ownership was awarded to R.G. and the applicant was ordered to pay LTL 76,000 to E.T. and D.Z. The applicant did, however, reserve the right to have her ownership rights to a plot of land restored. 14. On 15 September 2005 the Vilnius Regional Court dismissed an appeal by the applicant. 15. By a final decision of 22 March 2006 the Supreme Court upheld the decisions of the lower courts. 16. On 30 May 2006 the order requiring the applicant to pay LTL 76,000 was enforced by a bailiff. 17. According to information submitted by the applicant, she had to borrow money to comply with the order to pay LTL 76,000 and to cover other legal expenses. She also alleged that the unlawful actions of the authorities and the related court proceedings had caused her health to deteriorate significantly, as she had suffered stress and later become disabled. 18. In November 2005, after receiving a refusal from the Vilnius Region Administration to compensate her for her loss, the applicant brought a claim against the State before the administrative courts for LTL 90,479 (about EUR 26,200) in pecuniary damage and LTL 300,000 (about EUR 87,000) in non-pecuniary damage. 19. By a final decision of 15 November 2007 the Supreme Administrative Court upheld the decision of the first instance court and granted the applicant’s claim in part awarding her LTL 838 (approximately EUR 240) for pecuniary (part of her legal costs and expenses) and LTL 2,000 (approximately EUR 580) for non-pecuniary damage. The court also concluded that the unlawful actions of the national authorities had violated the applicant’s legitimate expectations and had had an impact on her health, given her old age. However, the court dismissed most of the applicant’s claims to have reimbursed the pecuniary loss she had allegedly sustained as a result of the annulment of the transfer of title to the plot and the court proceedings she had had to undergo. In that connection, the courts noted that the applicant had no legal grounds to claim compensation for pecuniary damage, given that she had unlawfully had her ownership rights to the disputed plot restored. 20. Later, by a decision of 9 April 2009 the Vilnius Region Administration restored the applicant’s property rights by granting her a new plot of land of 0.23 hectare. | 1 |
test | 001-160377 | ENG | DEU | CHAMBER | 2,016 | CASE OF PARTEI DIE FRIESEN v. GERMANY | 3 | Remainder inadmissible;No violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Right to free elections-{general};Stand for election) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary | 5. The applicant party was founded in 2007 and is based in Aurich. It claims to represent the interests of the Frisian minority in Germany but limits its political activities to the Land of Lower Saxony (Niedersachsen) where the East Frisians traditionally settle. The applicant party estimates the number of people of Frisian origin within the territory of Lower Saxony at about 100,000 out of the total population of approximately 7,900,000. The Frisians have their own language and cultural identity which is similar among the West Frisians in the Netherlands and the North Frisians in the Land of Schleswig-Holstein, while the East Frisians in Lower Saxony have mainly stopped speaking their language. 6. Under the Electoral Law of Lower Saxony (Niedersächsisches Landeswahlgesetz, see relevant domestic law, paragraph 16 below), parliamentary seats – apart from those seats attributed to the candidates obtaining the majority of the votes in their constituency – are allocated under the D’Hondt system of proportional representation. Under section 33 § 3 of the Electoral Law, seats are attributed only to parties which obtain a minimum threshold of 5% of the total of votes validly cast. This threshold is also included in Article 8 § 3 of the Lower Saxonian Constitution (see relevant domestic law, paragraph 15 below). 7. By letter of 27 September 2007 to the Prime Minister of Lower Saxony and by letter of 17 December 2007 to the President of the Lower Saxony Parliament, the applicant party asked to be granted an exemption from the minimum threshold for the upcoming elections. The request was refused. 8. In the elections of 27 January 2008, the applicant party attained an overall total of 10,069 votes, amounting to approximately 0.3% of all votes validly cast. Irrespective of the minimum threshold, the number of votes received would not have been sufficient to obtain a parliamentary mandate. 9. On 6 March 2008 the applicant party lodged an objection against the validity of the election result. The applicant party submitted, in particular, that it represented the interests of the Frisian people residing in Lower Saxony. The Frisian people formed a national minority within the meaning of the Framework Convention for the Protection of National Minorities (“the Framework Convention”, ETS No. 157, see Council of Europe documents, paragraphs 20-23 below). The applicant party complained, in particular, that the minimum threshold resulted in their factual exclusion from participating in the parliamentary elections and amounted to discriminatory treatment visàvis other small political parties which were, at least theoretically, capable of reaching that threshold. The applicant party further relied on Article 14 in conjunction with Article 3 of Protocol No. 1 to the Convention. 10. On 9 May 2008, the Election Supervisor of Lower Saxony (Landeswahlleiter), jointly with the Ministry of the Interior, submitted written comments on the objection. They considered, firstly, that it was doubtful whether the group of Frisians qualified as a national minority. Under the declaration submitted by the German Government when signing the Framework Convention, only the Danes of German citizenship and members of the Sorbian people with German citizenship were recognised as national minorities in the Federal Republic of Germany. Conversely, the declaration merely stated that the Framework Convention also applied to the ethnic group of Frisians with German citizenship. It was thus clear from the wording of the declaration that the Frisians did not qualify as a national minority. Even assuming that the ethnic group of Frisians had the status of a national minority, this did not necessarily entail the obligation to exempt the applicant party from obtaining the minimum threshold of 5% of the votes. There was no such obligation under the Basic Law or under the constitution of the Land of Lower Saxony or under the Framework Convention. Neither could such an obligation be derived from section 6 § 6 of the Federal Electoral Law (Bundeswahlgesetz), as the Länder were competent to pass their own electoral laws without being bound by the Federal Law. The privileges enjoyed by the Danish Minority Party in the Land of Schleswig-Holstein did not allow any further conclusions, as the protection and promotion of the Danish minority was prescribed by the constitution of the respective Land. Finally, and again assuming the minority status of the ethnic group of Frisians, it was questionable whether the applicant party would qualify as the party of the Frisian national minority. The assessment of this question did not only depend on the party’s vision of itself, but on an overall assessment of all factual and legal circumstances. 11. On 2 February 2009 the Parliamentary Committee on the Scrutiny of Elections (Wahlprüfungsausschuss) held a public hearing on the applicant party’s objection. 12. On 19 February 2009 the Lower Saxony Parliament rejected the applicant party’s objection as being unfounded. Relying on the submissions made by the Election Supervisor jointly with the Ministry of the Interior, the Parliament considered that an obligation to exempt the applicant party from the minimum threshold could neither be derived from the Constitution of Lower Saxony, nor from Federal or International Law. It followed that the applicant’s objection was unfounded. 13. On 6 April 2009 the applicant lodged a complaint with the Constitutional Court of Lower Saxony (Niedersächsischer Staatsgerichtshof). The applicant party requested the Constitutional Court to quash the parliamentary decision of 19 February 2009 and to declare the result of the elections held on 27 January 2008 invalid; or, alternatively, to declare section 33 § 3 of the Electoral Law unconstitutional. 14. On 30 April 2010 the Constitutional Court of Lower Saxony rejected the applicant party’s complaint as being unfounded. The Constitutional Court observed, at the outset, that the relevant provisions did not allow for an exemption from the minimum threshold for national minorities. The Constitutional Court further considered that the minimum threshold interfered with the principle of equality of the vote. This interference was justified because it pursued the legitimate aim of safeguarding the functioning of the elected parliament. Parliamentary work within a democracy necessitated that the parliaments remain able to take decisions and that they were not inhibited in their work by the participation of splinter parties. The Constitutional Court further referred to the case-law of the Federal Constitutional Court regarding the 5% minimum threshold. There was no obligation under the Basic Law to exempt parties of national minorities from the 5% threshold. It was true that certain electoral laws provided for such exemptions. This was, in particular, the case with the Federal Electoral Law, which provided an exemption for parties of national minorities, and with the Electoral Laws of the Länder of Brandenburg and Schleswig-Holstein, providing for exemptions for the parties of the Sorbian and the Danish minorities, respectively. However, both Länder provided special rights for national minorities in their respective constitutions. No such provisions could be found in the Constitution of the Land of Lower Saxony. The Federal Constitutional Court had declared the respective provision in the Federal Electoral Law constitutional, even though the Basic Law did not contain special rights for national minorities. However, the Federal Constitutional Court had also emphasised that the legislator enjoyed a margin of appreciation in this respect. The Lower Saxony Constitutional Court finally considered that the alleged right could be derived neither from the European Convention on Human Rights nor from the Framework Convention. The European Convention on Human Rights did not contain any special rights for national minorities. Relying on the wording of Article 15 of the Framework Convention, the court considered that this provision did not contain any obligation to exempt national minorities from the minimum threshold, but left the question undecided as to how to create the conditions necessary for the effective participation of persons belonging to national minorities in public affairs. It followed that the contracting parties enjoyed a wide margin of appreciation in this respect. In Germany, participation of national minorities in public life was already guaranteed by the constitutional system. By including the 5% threshold in the Constitution of the Land of Lower Saxony without providing for an exemption, the Constitutional Assembly had given precedence to the functioning of the parliament over granting privileges to national minorities. Accordingly, the Lower Saxony Constitutional Court did not find it necessary to determine whether the Frisians qualified as a national minority and whether the applicant party qualified as the political party of this national minority. | 0 |
test | 001-144348 | ENG | HUN | COMMITTEE | 2,014 | CASE OF JÁHNY v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | András Sajó;Helen Keller;Robert Spano | 4. The applicant was born in 1944 and lives in Ajka. 5. On 22 July 1990 the applicant and Pápa és Vidéke ÁFÉSZ, a legal person, concluded a lease contract concerning the property of the latter party. 6. The applicant apparently breached his contractual obligations and failed to pay the monthly rental fees between October 1993 and October 1994. 7. After several unsuccessful deadline extensions and requests for payment, Pápa és Vidéke ÁFÉSZ terminated the lease contract with immediate effect on 26 October 1994. 8. In November 1994 Pápa és Vidéke ÁFÉSZ lodged a compensation claim with the Veszprém County Regional Court against the applicant. 9. The first-instance court found for the plaintiff and ordered the applicant to pay the overdue rental fees (approximately 1,600 euros (EUR)) and accrued interests to the plaintiff. 10. On appeal, the Budapest Court of Appeal upheld the judgment on 2 December 2003. 11. The applicant lodged a petition for review with the Supreme Court, which rejected it on 8 December 2005. The decision was served on the applicant on 26 January 2006. | 1 |
test | 001-142655 | ENG | SRB | CHAMBER | 2,014 | CASE OF ĐEKIĆ AND OTHERS v. SERBIA | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra | 5. The applicants were born in 1976, 1984 and 1976 respectively. The first and second applicants live in Prokuplje and the third applicant lives in Belgrade. 6. On 18 September 2004 at about 2.30 a.m. they were implicated in a minor road traffic accident. Soon thereafter, the police arrived at the scene. 7. According to the applicants, the police immediately handcuffed them and took them to the Prokuplje Police Station where they were beaten up. However, according to the official reports on the use of force prepared by three duty officers, the applicants were drunk and violent from the arrival of the police at the scene of the accident. As they tried to flee the scene and, moreover, attacked the officer who tried to stop them, the police decided to arrest them. At the police station, the applicants continued to behave violently. In order to subdue the applicants, the three duty officers hit them a couple of times with truncheons and then handcuffed them. In the process, as they resisted being handcuffed, Mr Zoran Đekić and Mr Dragan Končar struck their heads against office furniture. 8. Having spent the night at the police station, the applicants were taken to the hospital. According to medical reports, Mr Dragan Đekić had a bruise on his right shoulder, Mr Zoran Đekić had bruises on his head, right arm and right shoulder, and Mr Dragan Končar had bruises on his head, chest, abdomen, back and right shoulder. 9. On the same morning the police lodged a criminal complaint against the applicants accusing them of the offence of obstructing a police officer in the discharge of his duty. At about 8.30 a.m. the applicants were taken to the investigating judge. They complained that they had been beaten up by the police. However, the judge took no action in that regard. They were released at about 1 p.m. 10. On 20 September 2004 two daily newspapers with a large circulation published the applicants’ allegations that they had been beaten up by the police. The next day the Press Service of the Ministry of Interior issued an official denial. Between 21 and 27 September 2004, the Inspector General’s Service (the internal control service of the Ministry of Interior) carried out an internal investigation into the applicants’ allegations. It interviewed the applicants, 18 police officers and 19 civilians (while no civilians were present at the premises of the police station when the police resorted to the use of force against the applicants, the Inspector General’s Service interviewed a number of eyewitnesses to the applicants’ arrest and the doctor who had examined the applicants on the critical day). All of them except the applicants maintained that the applicants had been drunk and violent at the relevant time. The Inspector General’s Service concluded in its report of 27 September 2004 that the police had acted in accordance with law. The report was not made available to the applicants. 11. On 18 November 2004 the public prosecutor charged the applicants with the offence of obstructing a police officer in the discharge of his duty. The applicants were ultimately convicted as charged and given suspended sentences. 12. On 8 December 2004 the applicants lodged a criminal complaint against three police officers accusing them of ill-treatment. Having obtained an official report finding that the police had acted in accordance with law, on 28 January 2005 the public prosecutor decided not to prosecute. On 2 March 2005 the applicants started a subsidiary prosecution by lodging a bill of indictment against the same officers. They did not file a civil-party claim. 13. The first hearing before the Prokuplje Municipal Court took place on 11 October 2005. Having heard the police officers accused of ill-treatment, some other officers, the applicants and some eyewitnesses to their arrest, on 18 April 2006 the Prokuplje Municipal Court decided that the use of force against the applicants had been lawful. It therefore acquitted the accused police officers. On 24 October 2006 the Prokuplje District Court upheld that ruling. The last judgment of 24 October 2006 was served on the applicants on 27 November 2006. 14. In December 2006 the applicants applied to the public prosecutor to lodge a request for the protection of legality on their behalf. On 7 August 2007 the public prosecutor decided not to do so. 15. The Criminal Code 1977 (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89; and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The relevant Article reads as follows: “Whoever acting in an official capacity ill-treats or insults another or otherwise treats such person in a humiliating and degrading manner, shall be punished with imprisonment of from three months to three years.” 16. The Code of Criminal Procedure 2001 (Official Gazette of the FRY nos. 70/01 and 68/02; and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09, 72/09 and 76/10) was in force between 28 March 2002 and 1 October 2013. Most criminal offences (including ill-treatment by public officials acting in an official capacity) were subject to public prosecution, but some minor offences were only subject to private prosecution. Pursuant to Article 20 of the Code, the public prosecutor had to prosecute when there was sufficient evidence that a person had committed a criminal offence which was subject to public prosecution. Article 61 of the Code provided that when the public prosecutor decided not to prosecute such an offence because of a lack of evidence, the victim of the offence had the possibility of starting a subsidiary prosecution within eight days from the notification of the public prosecutor’s decision. 17. The Inspector General’s Service of the Ministry of Interior was set up by the Inspector General’s Service Ordinance 2001. The first Inspector General was appointed in June 2003. As the Ordinance is not in the public domain, little is known about the work of that body in the first years of its existence. It is, however, certain that the Inspector General was answerable to the Minister of Interior. The Service was reorganised and renamed (it is now called the Sector for the Internal Control of the Police) in November 2005, but this is irrelevant in the present case. 18. The Civil Obligations Act 1978 (Official Gazette of the SFRY nos. 29/78, 39/85, 45/89 and 57/89; and Official Gazette of the FRY no. 31/93) has been in force since 1 October 1978. Section 200(1) thereof provides that anyone who has suffered fear, physical pain or mental anguish as a result of a breach of his human rights (prava ličnosti) is entitled to sue for damages. In accordance with section 172(1) of the Act, a legal entity, which includes the State, is liable for any tort committed vis-à-vis a third party by its organs in the course of, or in connection with, the exercise of their functions. 19. The Civil Proceedings Act 2004 (Official Gazette of the Republic of Serbia nos. 125/04 and 111/09) was in force from 22 February 2005 until 1 February 2012. Section 13 of the Act provided that if a victim of a criminal offence had brought a civil action for damages against the offender, the civil court was bound by a final decision, if any, of the criminal court finding the offender guilty. The civil courts have persistently interpreted that provision so that a criminal conviction was not a condition for an award of damages (see, for instance, judgment Gž. 1739/06 of the Kragujevac District Court of 29 September 2006; judgment Gž. 1257/11 of the Novi Sad Appeals Court of 2 June 2011; judgment Gž. 3273/11 of the Novi Sad Appeals Court of 16 November 2011; judgment Gž. 146/12 of the Novi Sad Appeals Court of 5 April 2012; judgment Gž. 5676/11 of the Belgrade Appeals Court of 2 August 2012; and judgment Gž. 4357/12 of the Novi Sad Appeals Court of 26 October 2012; in which civil courts awarded non-pecuniary damages for injuries sustained during an arrest operation and/or in police custody in the absence of a criminal conviction against any police officer). The Civil Proceedings Act 1977 (Official Gazette of the SFRY nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90 and 35/91; and Official Gazette of the FRY nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02), which was in force until 22 February 2005, contained the same provision (see section 12(3) thereof). 20. The International Covenant on Civil and Political Rights, adopted under the auspices of the United Nations on 16 December 1966, entered into force in respect of Serbia on 12 March 2001. The “concluding observations” on Serbia of the Human Rights Committee, the body of independent experts set up to monitor the implementation of this treaty, read, in the relevant part, as follows (document CCPR/CO/81/SEMO of 12 August 2004, § 15): “While taking note of the establishment in Serbia of [Inspector General’s Service] in June 2003, the Committee is concerned that no independent oversight mechanism exists for investigating complaints of criminal conduct against members of the police, which could contribute to impunity for police officers involved in human rights violations. The State party should establish independent civilian review bodies at the Republic level with authority to receive and investigate all complaints of excessive use of force and other abuse of power by the police.” | 0 |
test | 001-162206 | ENG | ROU | CHAMBER | 2,016 | CASE OF COSTEL POPA v. ROMANIA | 4 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1977 and lives in Bucharest. 6. On 11 October 2009 the EcoPolis association, founded by the applicant and four other associates, opened proceedings before the Bucharest District Court to seek registration in the Register of Associations and Foundations kept by that court. It also asked the court to grant it legal personality. 7. The association’s goal, as declared in its memorandum of association (act constitutiv) and in Article 2 of its articles of association (statutul asociației), was that of promoting the principles of sustainable development at the public policy level in Romania (promovarea principiilor dezvoltării durabile la nivelul politicilor publice din România). The association’s objectives, as declared in Article 7 of its articles of association, were: to increase expertise in the development of sustainable public policies in Romania (creşterea expertizei ȋn elaborarea politicilor publice durabile din România); to improve the process of the development of sustainable public policies by facilitating public participation in and access to relevant information about the environment; to increase the accountability of the relevant official bodies by scrutinising the implementation of public policies with an impact on the environment; to facilitate the access of official bodies to best practices by examining the Government’s environmental initiatives in a European context; to ensure transparency in the work of public institutions and increase their responsibility for their actions in relation to other citizens; to review whether public institutions worked on the basis of principles of sustainability; and to defend the right to a clean environment, as provided by international treaties. The activities envisaged by the association in order to achieve its objectives, as declared in Article 8 of its articles of association, were: research and analysis; public debates and conferences; monitoring the implementation of European Union directives; public communication campaigns; opinion polls; reviewing the development and implementation of public policies in the environmental field; training; raising citizens’ awareness; informing people of matters of public concern; raising the awareness of the community and of public authorities about the need to protect the environment; organising meetings between citizens and representatives of public authorities; organising debates and opinion polls on issues impacting the environment; developing programmes in partnership with public authorities; active involvement of citizens in the development of public policies and the decision-making process; improving the legal framework; setting up annual prizes for environmental activities; awarding scholarships for promoting sustainable development; networking with similar national and international organisations; supporting and defending the association’s members and volunteers; and other lawful activities. 8. By an interlocutory judgment of 24 October 2009, delivered in private, the Bucharest District Court granted the association legal personality and ordered its registration in the Register of Associations and Foundations. The court held that the organisation had attached all the lawfully required documents to the application for registration and that the documents had complied both in form and content with the requirements set out by Government Ordinance no. 26/2000. Moreover, the goal set by the association complied with the provisions of Articles 1 and 4 of that Ordinance. 9. The Bucharest Public Prosecutor’s Office lodged an appeal on points of law (recurs) against the interlocutory judgment of 24 October 2009. It argued that it interpreted the association’s declared goal as belonging to the field of activities of a political party. That interpretation was supported by the association’s objectives and by the activities it planned, as set out in Articles 7 and 8 of the articles of association. However, a political party could not be registered under the provisions of Government Ordinance no. 26/2000. 10. By a final judgment of 10 February 2010 the Bucharest County Court allowed the appeal on points of law by the Public Prosecutor’s Office and rejected the organisation’s request for registration. It held that the goal of the association, as declared in its memorandum and articles of association, was that of promoting the principles of sustainable development at the public policy level in Romania. Also, according to Article 7 of its articles of association, one of the association’s objectives was to increase expertise in the development of sustainable public policies in Romania. The court considered that the concepts used by the organisation had been very general and had run the risk of being understood as belonging to the field of activities of political parties. The association’s objectives could likewise have been interpreted as belonging to the realm of activity of a political party, although Government Ordinance no. 26/2000 expressly prohibited the use of the ordinance for the registration of political parties. | 1 |
test | 001-139932 | ENG | RUS | CHAMBER | 2,014 | CASE OF BUDANOV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1972 and lived until his arrest in the town of Morshansk, Tambov Region. 6. On 25 October 2004 the applicant was arrested on suspicion of murder committed in a drunken rage. He was placed in temporary detention facility no. IZ-68/2 in Morshansk. 7. On 1 February 2005 the Morshansk District Court found him guilty of murder and sentenced him to ten years’ imprisonment. The judgment became final on 10 March 2005 and the applicant was sent to serve his sentence in correctional colony no. 5. 8. Medical certificates submitted by the applicant indicate that in 2000 he was admitted to the neurological department of the Morshansk Town hospital for in-patient treatment as he was suffering frequent seizures and loss of consciousness. He was diagnosed with episyndrome with vascular malformation in the right parietal lobe. In 2001 he was again admitted to the hospital with severe headaches and seizures. Doctors confirmed the previous diagnoses of vascular malformation of the brain accompanied by episyndrome, and designated the applicant as category 2 disabled. The applicant was not allowed to perform any physical activity or work other than “light managerial work in a specially designated environment”. 9. On admission to detention facility no. IZ-68/2 the applicant complained to a prison doctor of frequent headaches. An examination resulted in his being diagnosed with neurocirculatory dystonia, encephalopathy with complex genesis, and chronic alcoholism. On the following day the applicant was examined by a psychiatrist, who recorded his complaints of regular and lengthy epileptic seizures and prescribed treatment with anticonvulsants. Clinical blood tests and an X-ray examination showed that the applicant was not suffering from any infectious diseases. 10. In December 2004 a prison psychiatrist and medical assistant saw the applicant three times in response to his complaints of insomnia, extreme irritability and disturbed emotional state. Having noted that close supervision was necessary, the doctor amended the applicant’s treatment to include another anticonvulsant, a strong neuroleptic and a sedative. 11. A prison paramedic attended the applicant on two occasions in January 2005. The applicant’s complaints intensified, to include not only severe headaches but insomnia and frequent and uncontrolled mood swings, with a depressed emotional state being quickly replaced by aggressive behaviour. The paramedic recorded that the applicant was making continual demands for a large number of drugs, in particular strong tranquillisers to fight insomnia, as the headaches only disappeared when the applicant was asleep. He introduced another anticonvulsant to the applicant’s drug regimen and prescribed a strong tranquilliser. 12. In February 2005 the applicant was seen at least every four days, by a psychiatrist or the head of the facility medical unit. The doctors registered extremely negative changes in the applicant’s behaviour, numerous complaints, refusal to take medication and subsequent persistent demands for drugs, in particular neuroleptics and tranquillisers. Each time this was done a discussion on the negative consequences of interruption of the treatment followed. The side effects of the treatment with neuroleptics and tranquillisers were also explained to the applicant. Following these “educational” talks, as the psychiatrist called them, the applicant complained of severe headaches and requested an in-depth examination in a specialised prison hospital by medical specialists competent to deal with his medical condition, in particular a neurosurgeon. He also asked for a magnetic resonance imaging (MRI) brain scan. The applicant was notified that the penal institutions in the Tambov region did not employ a neurosurgeon and that MRI scanning was not available free of charge. He continued to insist, however, on a transfer to a hospital and an MRI scan every time he saw a medical specialist. The officials’ response was to amend his drug regime, switching him from one neuroleptic to another and replacing one anticonvulsant with another one. 13. On 28 February 2005 the applicant was transferred to detention facility no. 1 in Tambov. Having examined the applicant on his admission to the facility, a prison doctor recommended regular consultations with a psychiatrist and a drug addiction specialist. He also made recommendations in view of the applicant’s emotional state, and prescribed injections with a new neuroleptic and a spasmolytic. 14. The applicant was examined by a psychiatrist and a drug addiction specialist during the week following his admission to that detention facility, and the previous drug regime was reinstated. At the same time the drug addiction specialist noted the applicant’s dependence on tranquillisers, particularly those which had served as the basis for his chemotherapy regime since his arrest. The drug addiction specialist recommended the applicant be admitted to a correctional colony medical facility for treatment. 15. On 18 March 2005 the applicant was admitted to the Tambov Region prison hospital, where he remained until 6 April 2005. The applicant underwent a number of clinical blood and urine tests, X-ray examinations of the head and chest, an electrocardiogram (ECG) and ultrasound scanning of the abdominal area and kidneys. The tests and examinations did not reveal any pathology. He was also seen by a neurologist and an oculist. He was treated with piracetam, a neurometabolic stimulator, vitamins, analgesics, spasmolytics, sedatives and an antihypertensive drug. The applicant was discharged from the hospital in what the doctors considered a satisfactory condition. 16. Following his treatment in the hospital, the applicant was transferred to correctional colony no. 5 to serve his sentence. His first consultation with a psychiatrist took place two days after his arrival in the colony. Following the applicant’s complaints of severe headaches, insomnia, anxiety and irritation, the doctor recommended transfer to a prison medical facility for treatment for his alcoholism. That transfer was effected at the end of April 2005. 17. On 3 May 2005 the applicant was seen by the head of the prison medical facility, to whom he stated that he refused to have treatment for his chronic alcoholism. The applicant insisted on being transferred back to the correctional colony, and asked for a medical expert examination. 18. Ten days later the applicant was examined by a medical panel comprising the head of the prison medical facility, a drug addiction specialist, a psychiatrist and a physician. The panel’s conclusion was that the applicant required mandatory treatment for his chronic alcoholism, given that the illness was negatively affecting his behaviour, as well as his psychological state. In particular, the doctors recorded the applicant’s continual attempts to obtain additional doses of tranquillisers as a sign of his dependency. The doctors lectured the applicant about the consequences of “simulation and addiction”. The applicant’s medical record showed that he was seen by a number of specialists and underwent a number of clinical tests. He was released from the in-patient facility with a drug regime comprising tranquillisers, analgesics, neuroleptics and a hepatoprotector. He was discharged on the condition that he would be under close supervision by a psychiatrist and a drug addiction specialist. 19. The applicant continued to receive the psychotherapy, with prison officers and medical staff recording positive effects of the treatment, and noting that the applicant was adjusting rapidly to the conditions of the correctional colony and was complying with the detention regime. 20. In June 2005 a prison psychiatrist reduced the applicant’s drug regime to one anticonvulsive drug and multivitamins. While his condition was considered moderately satisfactory, he continued to complain of headaches and occasional loss of consciousness. At the same time the applicant acknowledged that he had had no epileptic fits during the entire period of his treatment in the prison medical facility. In July 2005 the applicant’s condition worsened and his complaints intensified, leading to the reintroduction of the drugs that he had been treated with in the prison medical facility. At the same time the colony authorities refused the applicant’s requests to be transferred to the regional prison hospital for examinations, in particular an MRI brain scan, and treatment, considering that his condition could be appropriately treated with outpatient treatment in the colony. The only request from the applicant which was granted concerned the reintroduction of a tranquilliser into his drug regimen. 21. In August 2005 the applicant’s complaints, which he had been making daily, of a loss of consciousness, loss of appetite and very severe headaches, were heard in a consultation with a prison paramedic, who prescribed pain relief for the headaches, vitamins, an anticonvulsive drug and a herbal sedative. While it was noted that there were injuries on the applicant’s face and body which could have supported his account of loss of consciousness and a resultant accidental fall, the paramedic described his behaviour as an attempt to manipulate and attract attention. In response, the rules of behaviour in penal institutions, the internal regulations of the facility he was in, and the aims of the medical treatment were all explained to him. In September 2005 the applicant was prescribed work and psychotherapy in addition to a course of medication. 22. The applicant suffered a relapse of his chronic pancreatitis and was sent to the regional prison hospital on 19 September 2005, where he underwent a series of clinical tests and examinations identical to those he had already had during his previous stay in the hospital. The applicant’s diagnosis when he was discharged from the hospital on 6 October 2005 was as follows: encephalopathy with a complex genesis with cephalgia syndrome, chronic pancreatitis, cholecystitis in remission, and alcohol dependency syndrome, aggravated by uncontrolled use of psychotropic drugs. 23. After he was transferred back to the medical correctional facility on his discharge from the hospital the applicant continued to complain of headaches, nausea, loss of consciousness, numbness in the arms and legs, fatigue and insomnia. The following months consisted of new rounds of complaints when the applicant demanded additional doses of tranquillisers, admission to the regional prison hospital and an MRI scan of the head, and the facility authorities treated his requests as coming from a drug addict and a manipulator. The doctors also concluded that he no longer needed treatment for alcohol addiction as he had been cured and had shown a clear intention to continue with a sober life. In the authorities’ opinion, that intention should have been strengthened through the prescribed work therapy and psychotherapy. 24. In December 2005 the administration finally acceded to the applicant’s request and sent an official letter to the Tambov regional hospital requesting that he be admitted and receive an MRI scan. While waiting for a response, paramedics, on the recommendation of a psychiatrist who had seen the applicant at least once a month, continued to amend his drug treatment, given that he was not responding well to treatment and his condition appeared to be deteriorating. 25. Between March and May 2006 the applicant suffered several epileptic fits, which again led to changes in his drug regimen. On 10 May 2006 he was taken to the regional prison hospital for a complex expert examination. The hospital doctors, who employed identical methods of clinical examination and consultations with the same specialists as on the two previous occasions, confirmed the diagnosis and recommended treatment with neurometabolic stimulators, piracetam and vitamins. 26. After he was discharged from hospital at the end of May, the appliсant was seen at least once a month by a prison medical officer or a psychiatrist; following every consultation there was a change in his treatment, consisting either of the removal of a drug or the introduction of a new drug. 27. At the beginning of August 2006 the applicant’s condition deteriorated, and he was prescribed bed rest and increased doses of anticonvulsive drugs, sedatives and analgesics. With no sign that the prescribed treatment was working, he was sent back to the prison regional hospital at the beginning of September 2006. In addition to the usual procedures, treatment and examinations he had received in the hospital on previous occasions, he underwent an MRI brain scan. The MRI scan report was as follows: “the ventricle system of [the applicant’s] brain was moderately enlarged; the outline of the sulci in the cerebral hemispheres was drastically sharpened (degeneration); extensive arterial venous malformation in the left side of the parietal lobe with the draining veins in the sagittal sinus; frontal sinusitis on the right side”. 28. Between November 2006 and January 2007 the applicant had a recurrence of his chronic pancreatitis, for which he received effective treatment in the correctional colony. He also did not cease to complain of headaches, emotional disturbance, fatigue and insomnia. His readmission to the regional prison hospital was the authorities’ response to his increasing complaints about his health. In the hospital the applicant received the usual medical attention and was released in “a satisfactory state” with the recommendation that treatment be continued with piracetam and neurometabolic stimulators. A short stay in the correctional colony was followed by his admission to the Smolensk Inter-Regional Psychiatric prison hospital at the end of March 2007. The applicant did not complete his examinations and treatment in that hospital, as he had broken the rules of the detention regime and had therefore been discharged from the hospital. At this time doctors recommended that the applicant be monitored and treated by a psychiatrist and that he also be treated with neurometabolic stimulators, vascular medication, vitamins, and behaviour modifiers. 29. On the recommendation of a colony psychiatrist who had seen the applicant at least every two weeks since his return from the Smolensk hospital, the applicant was admitted to the prison hospital in correctional colony no. 1, where he remained until the end of June 2007. The applicant was readmitted to the hospital slightly over a month after being discharged. The usual medical procedures and examinations he had had on other occasions were supplemented by rheoencephalography, which showed negative changes in his cerebral blood flow. Four days after the applicant was discharged from the hospital at the end of September 2007, a colony psychiatrist recorded a deterioration of the applicant’s condition. In October 2007 the applicant suffered an epileptic fit during a consultation with a psychiatrist. The latter described the fit in the applicant’s medical record as accompanied by a lengthy loss of consciousness, convulsions and foaming at the mouth. The applicant was immediately taken to the medical unit of the correctional colony, where he received increased doses of sedatives, anticonvulsive drugs, hepatoprotectors, vitamins and neuroleptics. The applicant was discharged from in-patient care in the unit in the middle of November 2007. The head of the colony medical unit discussed with the applicant the possibility of his being admitted to the Gaaza prison hospital in St Petersburg for surgery. 30. The following four months featured complaints by the applicant of deteriorating health and inability to stand the severe headaches he was suffering, and attempts by colony staff to give him relief with the range of drugs which had been included in his regimen since his arrest and first complaints of health problems. 31. In April 2008 the applicant’s medical record, including the results of the MRI scan in September 2006, was studied by the head of the medical unit of the correctional colony. His findings confirmed the rapid deterioration of the applicant’s condition, which could no longer be addressed by medication alone. The head of the unit recommended the applicant be admitted to the regional hospital for an assessment as to whether he would benefit from surgery. A month of treatment in the hospital with the usual chemotherapy regimen led, according to the medical record, to the applicant’s condition becoming “satisfactory”. A rheoencephalography performed in the hospital showed further progress of the illness, with concomitant serious disturbance of the cerebral blood flow. The applicant was again admitted to the regional hospital, slightly over two months after he was discharged. The hospital doctors changed his treatment, introducing new medication for relief of the headaches and for his emotional disorder and insomnia. When he was discharged from the hospital the applicant’s condition was no longer described as “satisfactory” although the only recommendation was to maintain treatment of his symptoms. 32. During the next twelve months the applicant made a very large number of complaints of headaches, stomach pain, nausea, insomnia and extreme emotional disturbance, to which the colony medical staff responded by conducting visual examinations, which were carried out by the head of the colony medical unit, a prison physician or a prison paramedic, and by prescribing drugs to arrest the negative symptoms of the illness. The drugs were alternated so as to switch between one anticonvulsant and another, and new sedatives and neuroleptics were introduced. On certain days the applicant had to take more than ten different drugs at a time. The medical officers made notes in the applicant’s records, detailing, in addition to his complaints, the results of the visual examinations, stating that he was “slow”, and that his reactions and responses were “sluggish”. On several occasions he was prescribed bed rest. 33. In October 2009 the applicant suffered an epileptic fit and was taken immediately to the colony medical unit, carried there by his cellmates. A prison medical assistant who examined him recommended continuing with the treatment. She also found it necessary for the applicant to be seen by a psychiatrist. Two weeks later the applicant was transferred to the prison hospital in the correctional colony. For the first time the applicant was subjected to an electroencephalogram (EEG). He was treated with the two usual drugs, including an anticonvulsant and a strong neuroleptic, and was prematurely discharged from the hospital. According to the medical record, the discharge was a consequence of the applicant’s behaving “incorrectly” towards a hospital official. 34. On 16 October 2009 he lodged a request with the Morshansk District Court for suspension of his sentence in view of the state of his health. The applicant argued that he was suffering from extremely severe headaches and that his seizures were becoming more and more frequent. He also complained that he was unable to receive the medical assistance he needed, including brain surgery, in detention, and asked the court to authorise a forensic medical examination to “determine the nature and severity of the brain damage” in preparation for subsequent surgery, as well as to call a neurosurgeon from a civilian hospital to interpret the MRI scans of his head. 35. On 9 December 2009 the parties were heard in the District Court, which ruled that it was necessary to send the applicant to a prison hospital for a medical examination to determine whether the state of his health warranted his release. 36. On 23 December 2009 the applicant was readmitted to the hospital in correctional colony no. 1, where he was assessed by a medical expert panel to determine whether he was suffering from an illness which was serious enough to warrant his early release. The panel concluded that the applicant could not be released on health grounds as he was not suffering from an illness on the List of Illnesses Precluding the Serving of Custodial Sentences, as adopted by a Government decree in 2004. 37. The District Court received the medical panel’s report and on 26 February 2010 dismissed the applicant’s request for suspension of the sentence. It held as follows: “The opinion of the special medical panel on the medical examination of [the applicant] performed on 28 December 2009 ... establishes the following diagnosis: organic emotionally labile personality disorder connected with mixed illnesses (dyscirculatory vascular malformation, epilepsy with rare seizures, moderate alcohol dependence syndrome in the stage of forced remission). By virtue of paragraph 20 of the List of Illnesses Precluding the Serving of Custodial Sentences ... [the applicant] cannot be relieved from serving the remaining part of his sentence. Having considered the opinion of the special medical panel on the medical examination of [the applicant], [and] the nature of his illness, the court finds that treatment of the illness can be ensured in detention. Moreover, taking into account the information provided on [the applicant’s] personality, the nature of the criminal offence of which he was convicted and which is considered particularly serious, [and] the references given [on the applicant] at the place of his former residence, the court considers that at the present time the aim of [the applicant’s] improvement has not been reached and, if his sentence is to be suspended and he is to be released from detention he would present a danger to society [and] may reoffend.” 38. On 23 March 2010 the Tambov Regional Court upheld that decision, finding the District Court’s reasoning convincing and well-founded. 39. In the meantime, the applicant was discharged from the hospital and sent back to the correctional colony, only to be returned to the hospital a month later, in February 2010. When the applicant was discharged from the hospital it was with the recommendation that an MRI scan of the head be arranged by his correctional colony. That recommendation was complied with in April 2010. Medical specialists noted negative developments on the scan and stated that the applicant should consult a neurosurgeon. 40. For six months of his stay in correctional colony no. 5 after his return from the hospital the applicant continued to complain of severe headaches, epileptic seizures, nausea and insomnia. Those complaints were heard by a prison paramedic or a prison psychiatrist and amendments were made to his chemotherapy regimen. 41. In June 2010 the applicant sent a letter to the Tambov Regional Health Department asking for medical assistance. He provided the Court with an extract from his medical record issued by the Tambov Regional Clinical Hospital and a letter from the acting director of the Tambov Regional Health Department. The first document showed that the applicant required permanent supervision by a neurologist and regular MRI scans of the head. The letter from the acting director of the Health Department indicated that the applicant was in need of “surgery in a specialised federal centre” and that the medical facilities in Tambov Region were not equipped to perform such an operation. The acting director also noted in the letter that he had informed the Tambov Regional Service for Execution of Sentences (hereinafter “the Service”) about the applicant’s state of health and that the surgery was required. 42. In response to the applicant’s request to be sent to the Gaaza prison hospital in St Petersburg where he could have brain surgery, on 2 July 2010 the director of the Service informed him that there was no medical need for surgery. 43. On 20 September 2010 the director of the Gaaza hospital sent a letter to the head of correctional colony no. 5, the relevant part of which read as follows: “In response to your request ... of 12 August 2010 [I] inform you that [the applicant] ... cannot be transferred to [the Gaaza hospital] for in-patient treatment, as the surgery in the present case is of a high-tech nature and [the hospital] does not have the necessary equipment to perform it at the present time.” 44. The applicant was admitted to the prison hospital in correctional colony no. 1, where he was again seen by an oculist, a neurologist and a psychiatrist, underwent clinical blood and urine tests, ultrasound scanning of the abdominal area, EEG and ECG testing, and received the usual course of drug therapy. The EEG test showed a further negative dynamic in the applicant’s condition in comparison to the results of the previous EEG test in 2009. He was discharged from the hospital at the end of October 2010 but was readmitted in January 2011. He was provided during his stay with the same range of medical services as before. 45. In December 2010 a medical panel stripped the applicant of his disability status, considering that his vital functions were not affected by his illness. 46. In 2011 the applicant submitted another request for suspension of the sentence on the grounds of his state of health. He insisted that his health was continuing to deteriorate and that the prison facilities did not have the capability to perform the brain surgery which he needed. 47. Having studied the medical evidence, including the reports by the medical panel and the applicant’s medical history, on 14 April 2011 the Morshansk District Court concluded that the applicant’s state of health did not warrant his release and that his treatment could be ensured by prison medical staff. The District Court also noted that “an issue pertaining to surgery is at the discussion stage”. 48. On 21 July 2011 the Tambov Regional Court confirmed the District Court’s conclusions in its decision of 14 April 2011. The Regional Court’s reasoning was as follows: “The material in [the applicant’s] case file indicates that he had the same health problems before he committed the murder, so [the state of his health] did not prevent him from committing a particularly serious criminal offence. The conclusions of the medical panel indicate that [the applicant’s] illness does not preclude him from serving the sentence. He receives the required treatment in detention. As regards the surgery, this question is at the decision stage and, if agreed to, [the applicant’s] request [for the suspension of the sentence] will be examined again in compliance with the requirements of the law in force.” 49. In 2011 the applicant’s treatment consisted of a combination of consultations with colony medical staff and provision of drug treatment for his symptoms, during which time he made a large number of complaints of poor health. Until November 2011 the consultations took place every two months with a prison paramedic. In November 2011 the applicant was seen once by the head of the colony medical unit, once by a psychiatrist, and once by a physician from the prison hospital. 50. In the meantime, in March 2011 the Tambov Regional Health Department sent the applicant’s record, including the record of the MRI brain scan performed in April 2010, to the director of the Burdenko Neurosurgery Scientific Research Institute in Moscow. Specialists from that institute were asked to develop a plan for the applicant’s treatment. Having examined the applicant’s medical file, a doctor from the Institute concluded that the applicant was in need of supervision by a neurologist and required amendments to the anticonvulsive treatment he was receiving. He also noted that the applicant did not need radiotherapy. The applicant was not seen by a neurologist or neurosurgeon in 2011. 51. In March 2012 a neurologist invited by the applicant’s mother visited the applicant. He recorded the applicant’s complaints of a severe “burning” pain in the left temporal region of the head and a general continuous pressing ache in the entire head, dizziness, nausea, fatigue, numbness in the legs, occasional loss of consciousness, insomnia, irritation, memory loss, feelings of fear, and panic attacks. Having confirmed the progress of the illness following a visual examination and a number of tests, the neurologist recommended consultations with a neurosurgeon and an angiosurgeon to draw up a schedule for his surgical treatment. He expanded the applicant’s drug regimen to include various sedatives, anticonvulsive drugs and neuroleptics, and recommended a number of examinations and tests, including an MRI heart scan and EEG tests. 52. There is no evidence in the applicant’s medical record that any of the neurologist’s recommendations were complied with. The medical record indicates that colony staff provided the applicant with only some of the drugs prescribed by the neurologist. He continued to be supervised by prison paramedics at the correctional colony. | 1 |
test | 001-141592 | ENG | ROU | ADMISSIBILITY | 2,014 | RIZEA v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Vasile Rizea, is a Romanian national, who was born in 1953 and lives in Pitești. He was represented before the Court by Ms E. D. Dragomir, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was involved in a fraud case against S.L., G.N., M.M. and M.N. concerning the sale of a house. The applicant's civil complaints made the object of the case files no. 3387/P/2000 and no. 486/P/2000. 5. On 28 January 2003 the applicant and P.C. lodged a criminal complaint and a joined civil claim against twenty-one public administration officers and the four above-mentioned private persons for alleged corruption with the National Anticorruption Office. 6. On 26 May 2003 the National Anticorruption Office remitted the applicant's complaint to the Pitești Court of Appeal. The prosecutor stated that an analysis of the applicant's complaint had disclosed no clues or information warranting an investigation of the alleged crimes by an anticorruption prosecutor. 7. On 30 May 2003 the prosecutor examined the applicant's complaint and recommended that it be treated as a complaint against the prosecutor's decisions in the fraud cases 3387/P/2000 and 486/P/2000. He confirmed that there was no evidence that the public administration officers (including judges, prosecutors) had committed the alleged corruption offences. 8. According to the Government, the prosecutor dismissed the applicant's complaint on 18 June 2003. The applicant complained before the Pitești District Court. His complaint was dismissed on 7 October 2004. The judgment of the first-instance court was confirmed by the Argeș County Court which dismissed the applicant's appeal on points of law on 28 March 2005. 9. On 16 March 2004 the applicant reiterated his complaint against the 25 perpetrators. His complaint was registered as file no. 527/2003. 10. On 23 March 2004 the prosecutor informed the applicant that his complaint did not disclose other acts than those invoked in case files no. 3387/P/2000 and 486/P/2000. 11. Unsatisfied with a decision allegedly delivered by the prosecutor attached to the Pitești Court of Appeal on 3 June 2003, the applicant and P.C. lodged a complaint before the Pitești Court of Appeal. The court dismissed the action for lack of substance on 15 April 2004. It noted that the applicant's complaints in the fraud cases 3387/P/2000 and 486/P/2000 were still pending before the prosecutor's office and no decision to discontinue the criminal proceedings had been delivered on 3 June 2003. 12. By a decision of 29 June 2004, the High Court of Cassation and Justice upheld the first-instance judgment dismissing the action. 13. In the meantime, the examination of the applicant's first complaint was pending and would eventually result in the decision delivered by the Argeș County Court on 28 March 2005 (see paragraph 8 above). 14. The relevant provisions of the Code of Criminal Procedure regarding the initiation of a civil action related to criminal proceedings are the following: “The object of a civil action is to establish civil liability against the defendant and any other party that bears civil liability. A civil action may be joined to a criminal action within a criminal trial if the injured person claims for damages as a civil party (...)”. “The injured person may join the proceedings as a civil party against the accused person or the defendant and against the party that bears civil liability. Joining the proceedings as a civil party may be done either during the criminal investigation or in court, before the charges are read out (...)”. “An injured person who did not sue for civil injury in the criminal trial may bring an action in the civil court for compensation for the pecuniary and non-pecuniary damage caused by the offence. The civil trial shall be postponed until a final decision has been given in the criminal case (...)”. “The injured person who can sue for civil injury in the criminal trial may initiate an action in the civil court if the criminal court, by its final decision, has not solved the civil action (...)”. | 0 |
test | 001-152461 | ENG | FIN | ADMISSIBILITY | 2,015 | ALASIPPOLA v. FINLAND | 4 | Inadmissible | Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicant, Mr Robert Alasippola, is a Finnish national, who was born in 1966 and lives in Leppävesi. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant’s business was declared bankrupt in 2003 and he was subject to a tax inspection for the years 2003 and 2004. The tax inspection report was completed on 4 June 2004. At the same time, the applicant’s wife was also subject to a tax inspection. She has lodged a separate application with the Court (no. 39771/12 Hanna Riikka Alasippola v. Finland). 5. On 3 September 2004 the tax authorities imposed additional valueadded tax on the applicant as well as tax surcharges (veronkorotus, skatteförhöjning) for the tax years 2001, 2002 and 2003. 6. On 9 September 2004 the tax authorities imposed additional income tax and tax surcharges on the applicant for the tax years 2000, 2001, 2002 and 2003. The amount of tax surcharges varied between 800 and 900 euros. 7. By letters dated 20 October 2004 and 1 February 2005 the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden), requesting it to quash the decisions of 9 September 2004. 8. On 21 February 2005 the Tax Rectification Committee rejected the applicant’s applications concerning the income tax imposed for the tax years 2000, 2001, 2002 and 2003. 9. The applicant appealed against both the decisions of 3 September 2004 and the rectification decisions of 21 February 2005 to the Hämeenlinna Administrative Court (hallinto-oikeus, förvaltnings-domstolen). 10. On 26 June 2006 the Hämeenlinna Administrative Court rejected the applicant’s appeals concerning the income tax imposed for the tax years 2000, 2001, 2002 and 2003. 11. The applicant appealed against the decision of 26 June 2006 by the Hämeenlinna Administrative Court to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) but later withdrew his application. On 15 March 2007 the case was considered by the Supreme Administrative Court as lapsed. 12. On 4 October 2006 the Hämeenlinna Administrative Court rejected the applicant’s appeals concerning the value-added tax imposed in respect of the tax years 2001, 2002 and 2003. It appears that no appeal was made against this decision. 13. On 27 March 2009 the public prosecutor brought charges against the applicant, inter alia, for aggravated dishonesty by a debtor (törkeä velallisen epärehellisyys, grovt oredlighet som gäldenär), false accounting (kirjanpitorikos, bokföringsbrott) and aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning the tax years 1999 to 2003. According to the charges, the applicant was accused of aggravated dishonesty by a debtor as, between 1999 and 2002, he had transferred income to his wife to the detriment of his creditors. He was accused of false accounting between 1999 and 2003 as he had failed to make entries into the accounts. He was accused of aggravated tax fraud between 1999 and 2003 as he had failed to declare income and consequently, inter alia, the income tax and value-added tax imposed on him had been too low. The tax authorities joined the charges and presented a compensation claim totalling approximately the amount of avoided taxes. 14. On 26 February 2010 the Keski-Suomi District Court (käräjäoikeus, tingsrätten) convicted the applicant of aggravated dishonesty by a debtor, false accounting and of aggravated tax fraud, and imposed a prison sentence of 1 year and 10 months. He was ordered to pay the tax authorities 135,417 euros (EUR) plus interest in compensation. 15. By letter dated 6 April 2010 the applicant appealed to the Vaasa Appeal Court (hovioikeus, hovrätten), requesting that the District Court judgment be quashed and the charges dismissed. He referred to the ne bis in idem principle and to the Court’s case-law in that respect. 16. On 31 October 2011 the Vaasa Appeal Court, after having held an oral hearing, upheld the District Court judgment. The court found that the mere fact that the same issues had been assessed in the administrative proceedings did not necessarily prevent the examination of the charges pressed. After having compared the charges of aggravated tax fraud to the facts on the basis of which the tax surcharges had been imposed, by the type of tax imposed and the tax year concerned, the court found that the facts on which these charges were based were substantially different from those on which the tax surcharges had been based. There was thus no impediment to examining the charges against the applicant. 17. By letter dated 29 December 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. He emphasised that matters which had already been examined by the tax authorities could not be examined again in criminal proceedings. 18. On 31 January 2012 the Supreme Court refused the applicant leave to appeal except in respect of the charges concerning aggravated tax fraud. 19. On 19 December 2012 the Supreme Court dismissed the charge of aggravated tax fraud without examining the merits as far as the charge concerned income tax from the tax years 2000 to 2003 and value-added tax from the tax years 2001 to 2003, and withheld the relevant taxes. The applicant was convicted for the remaining part of the charge of aggravated tax fraud and sentenced, together with the earlier convictions, to imprisonment for 1 year and 4 months. The court found that, when considering the ne bis in idem prohibition, the similarity of the facts should be examined by the type of tax imposed and separately for each tax year. As concerned the tax year 1999, there was no impediment to examining the charge as the tax inspection did not concern the tax year 1999. However, concerning the tax year 2000, the charge could not be examined, except in respect of value-added tax, as the same matter had already been subject to an assessment by the tax authorities. In respect of the tax year 2001 the charge could not be examined at all. The same applied for the tax years 2002 and 2003. The taxation decisions had all become final before the charge of aggravated tax fraud, which concerned the same matter, was pressed. Therefore, the charge could only be examined in respect of the tax year 1999 and in respect of the valueadded tax imposed during the tax year 2000. This judgment has been published under number KKO 2012:106. 20. Section 57, subsection 1, of the Tax Assessment Procedure Act (laki verotusmenettelystä, lagen om beskattningsförfarande, Act no. 1558/1995, as amended by Act no. 1079/2005) provides that if a person has failed to make the required tax returns or has given incomplete, misleading or false information to the tax authorities and tax has therefore been incompletely or partially levied, the taxpayer shall be ordered to pay unpaid taxes together with additional tax and a tax surcharge. 21. According to Chapter 29, sections 1 and 2, of the Penal Code (rikoslaki, strafflagen, as amended by Acts no. 1228/1997 and no. 769/1990), a person who (1) gives a tax authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently and thereby causes or attempts to cause a tax not to be assessed, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years. 22. According to Chapter 39, sections 1 and 1a, of the Penal Code (as amended by Acts no. 61/2003 and no. 317/1994), a debtor who (1) destroys his or her property, (2) gives away or otherwise surrenders his or her property without acceptable reason, (3) transfers his or her property abroad in order to place it beyond the reach of his or her creditors or (4) increases his or her liabilities without basis and thus causes his or her insolvency or essentially worsens his or her state of insolvency, shall be sentenced for dishonesty by a debtor to a fine or to imprisonment for at most two years. If by the dishonesty by a debtor (1) considerable benefit is sought, (2) considerable or particularly substantial damage is caused to the creditors, or (3) the offence is committed in a particularly methodical manner and the dishonesty by a debtor is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated dishonesty by a debtor to imprisonment for at least four months and at most four years. 23. The Supreme Court has taken a stand on the ne bis in idem principle in its precedent case KKO 2010:46 which concerned tax surcharges and aggravated tax fraud. In that case it found, inter alia, that even though a final judgment in a taxation case, in which tax surcharges had been imposed, prevented criminal charges being brought about the same matter, such preventive effect could not be applied to pending cases (lis pendens) crossing from administrative proceedings to criminal proceedings or vice versa. However, in July 2013 the Supreme Court reversed its line of interpretation, finding that charges for tax fraud could no longer be brought if there was already a decision to order or not to order tax surcharges in the same matter (KKO 2013:59). 24. The Act on Tax Surcharges and Customs Duty Surcharges Imposed by a Separate Decision (laki erillisellä päätöksellä määrättävästä veron- tai tullinkorotuksesta, lagen om skatteförhöjning och tullhöjning som påförs genom ett särskilt beslut, Act no. 781/2013) entered into force on 1 December 2013. According to the Act, the tax authorities can, when making a tax decision, assess whether to impose a tax surcharge or to report the matter to the police. The tax authorities can decide not to impose a tax surcharge. If they have not reported the matter to the police, a tax surcharge can be imposed by a separate decision by the end of the calendar year following the actual tax decision. If the tax authorities have imposed tax surcharges, they can no longer report the same matter to the police unless, after imposing the tax surcharges, they have received evidence of new or recently revealed facts. If the tax authorities have reported the matter to the police tax surcharges can, as a rule, no longer be imposed. The purpose of the Act is thus to ensure that a tax or a customs duty matter is processed and possibly punished in only one set of proceedings. The Act does not, however, contain any transitional provisions extending its scope retroactively. | 0 |
test | 001-158159 | ENG | GBR | CHAMBER | 2,015 | CASE OF R.E. v. THE UNITED KINGDOM | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Phillips of Worth Matravers | 5. The applicant was born in 1989 and lives in Newtownabbey, Northern Ireland. 6. In 2006 a solicitor in Northern Ireland was arrested and charged with a number of offences, including inciting paramilitaries to murder and perverting the course of justice. The case arose out of the covert recording of his consultations with clients at Antrim police station. As a direct consequence of the criminal proceedings, solicitors in Northern Ireland became aware that their private consultations with detainees in police stations and prisons could be the subject of covert surveillance. Thereafter, solicitors attending detainees in police stations and prisons began to seek assurances from the police that their consultations would not be the subject of such surveillance. 7. When the police refused to give assurances, judicial review proceedings were initiated on the basis that there had been a breach of the common law right to legal and professional privilege, the statutory right to a private consultation with a lawyer, and Articles 6 and 8 of the Convention. 8. In the case of Re C & Others [2007] NIQB 101A the Divisional Court of the High Court of Justice in Northern Ireland found that, despite the express statutory right to private consultations, the covert surveillance of lawyer-client consultations was permitted by the Regulation of Investigatory Powers Act 2000 (“RIPA”). However, RIPA provided for two principal surveillance schemes: intrusive surveillance and directed surveillance. At the time of the hearing, covert surveillance of legal consultations was being treated as directed surveillance, which was the least restrictive of the two schemes. The Divisional Court held that the fundamental right of a detained person to consult a legal adviser privately necessitated an enhanced authorisation scheme and that protections afforded by the directed as opposed to the intrusive surveillance scheme offered insufficient protection. If the surveillance of consultations between legal advisers and clients in police custody was to be lawful for the purposes of Article 8 of the Convention, the safeguards for the carrying out of intrusive surveillance had to apply. 9. The applicants in these judicial review proceedings appealed against the court’s ruling that the surveillance was permitted by the domestic legislation. The appeal went to the House of Lords, where it was referred to as Re McE (Northern Ireland) [2009] UKHL 15. The House of Lords agreed with the Divisional Court that although the provisions of RIPA could override, inter alia, legal professional privilege, the higher level of authority necessary for an intrusive surveillance warrant was required rather than the directed surveillance warrants that had, until then, been issued. 10. As the Police Service of Northern Ireland (“PSNI”) had not appealed against the Divisional Court’s ruling that the use of the directed surveillance scheme had breached Article 8 of the Convention, the House of Lords criticised the Secretary of State for not having taken any steps to ensure that covert surveillance of legal consultations was not treated as directed surveillance. 11. Following the decision of the House of Lords in Re McE the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”) was adopted and on 6 April 2010 a revised Covert Surveillance Code of Practice (“the Revised Code”) came into effect. Pursuant to the 2010 Order, directed surveillance of consultations between a detainee and his or her professional legal adviser, representative or medical practitioner in connection with legal proceedings was to be treated, for the purposes of RIPA, as intrusive surveillance. 12. On 15 March 2009 the applicant was arrested in connection with the murder of a Police Constable believed to have been killed by dissident Republicans. 13. When first arrested the applicant was assessed by the Forensic Medical Officer as a “vulnerable person” within the meaning of the Terrorism Act Code of Practice. Pursuant to paragraph 11.9 of that Code of Practice, he could not be interviewed, save in exceptional circumstances, in the absence of an “appropriate adult”. In the case of a person who was mentally vulnerable, an appropriate adult could be a relative or guardian, or a person experienced in dealing with mentally disordered or mentally vulnerable people. However, prior to being seen by either a solicitor or an appropriate adult, the applicant asked to speak to the officers in charge of the investigation “off the record”. He was interviewed by police officers in the absence of a solicitor or an appropriate adult and during the course of that interview he gave information which led to the recovery of the gun used in the Constable’s murder. 14. The applicant was detained in custody for twelve days. During this time he was twice seen by a Consultant Psychiatrist and on each occasion he was assessed as being vulnerable and requiring the presence of an appropriate adult. Also during this time his solicitor obtained an assurance from the PSNI that his consultations with the applicant would not be subject to covert surveillance. 15. On 25 March 2009 the applicant was charged with withholding information about the Constable’s murder. 16. Following the charge the applicant was detained in custody on the ground that if released he would be at risk of harm from dissident Republicans. 17. The applicant was released on bail on 8 June 2009. He was arrested and questioned on a further occasion in October 2009 but was subsequently released without charge. 18. On 4 May 2010 the applicant was arrested for a third time in connection with the Constable’s murder. Following his arrest his solicitor again sought an assurance from the PSNI that his consultations would not be subjected to covert surveillance. The PSNI informed him that “[they could] neither confirm nor deny whether any form of covert surveillance has been conducted in any instance. Covert surveillance is regulated by the Regulation of Investigatory Powers Act 2000, related statutory instruments and the Revised [Covert Surveillance] Code of Practice”. 19. The applicant sought permission to apply for judicial review of the PSNI’s refusal to give an undertaking that his consultations with his solicitor would not be subjected to covert surveillance. In particular, he alleged that the grounds upon which the authorisation of such surveillance would be appropriate were not sufficiently clearly defined and that the guidance concerning the securing and destruction of legally privileged confidential information was not sufficiently clear or precise. 20. On 6 May 2010 he was granted permission to apply for judicial review. In granting permission, the court directed that any subsequent consultations with his solicitor and his medical adviser should not be subject to covert surveillance. 21. On 7 May 2010 the applicant had his first consultation with a Consultant Psychiatrist. 22. The applicant was released without charge on 8 May 2010. 23. The charge of withholding evidence appears to have concluded without trial. 24. The hearing of the judicial review application took place before a Divisional Court of the High Court of Justice in Northern Ireland on 28 June 2010. On 21 September 2010 the Divisional Court dismissed the applicant’s claim. 25. In dismissing the claim, the court relied on Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010, which found that the regime under Part I of RIPA was compatible with Articles 6 and 8 of the Convention. Although it noted that Kennedy was concerned only with Part I of RIPA, the court considered that the reasoning expressed was “very relevant in view of the parallels between Part I and Part II of the surveillance legal regimes”. 26. The court found, in particular, that reading RIPA, the 2010 Order and the Revised Code together it was clear that a surveillance operation could only properly be justified if it was a truly proportionate response to a real risk posed by the individual who was the subject of the surveillance, and if the potential usefulness of the surveillance was demonstrably shown. As the Court had indicated in Kennedy, the requirement of foreseeability did not require an exhaustive definition of all conduct that might justify a decision on, for example, national security grounds, and similar reasoning applied in the present case. Consequently, the court held that the wording in the Revised Code was sufficiently clear. 27. With regard to the applicant’s second allegation, the court accepted that the statutory provisions under Part I of RIPA, which had been considered by the Court in Kennedy, were more detailed, prescriptive and precise than those in Part II. However, taking together the 2010 Order, the Revised Code and the PSNI Service Procedure Implementing Code, the arrangements in place for the use, retention and destruction of retained material in the context of legal consultations was compliant with the Article 8 rights of persons in custody. Moreover, as the Revised Code made it clear that material subject to legal professional privilege was not admissible in court and should be safeguarded by the taking of steps to ensure that it did not prejudice any criminal or civil proceedings, a breach of Article 6 of the Convention would not occur. While there was a risk of a potential “chill factor” (insofar as clients might be less than frank with their solicitors if they were concerned that they were under covert surveillance), the court considered that the revised Code was sufficiently detailed and precise to reassure those in custody that, save in exceptional circumstances, their consultations with lawyers would be in private. 28. Finally, the court observed that the special considerations which applied to consultations with lawyers or doctors did not apply in the case of meetings with an appropriate adult. It therefore followed that surveillance of such meetings could be authorised as directed surveillance rather than intrusive surveillance. 29. On 9 November 2010 the Divisional Court heard an application for leave to appeal to the Supreme Court. Leave to appeal was refused although the court certified four questions of law of general public importance. These were as follows: “a. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 6 ECHR in as much as they permit the covert surveillance of legally privileged consultations and the retention of material deriving from legally privileged consultations? b. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 8 ECHR as a result of:- (i) a lack of precision and clarity in the guidance governing the authorisation of such surveillance; and/or (ii) inadequate guidance as to how and when legally privileged material obtained from such surveillance should be handled, stored, used and destroyed. c. Is the Police Service of Northern Ireland’s Service Procedure “in accordance with the law” within the meaning of Article 8 ECHR? d. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and an appropriate adult violate Article 8 ECHR because such surveillance can be authorised as directed rather than intrusive surveillance?” 30. An application for permission to appeal to the Supreme Court was refused by the Supreme Court on 11 April 2011. | 1 |
test | 001-159906 | ENG | ROU | CHAMBER | 2,016 | CASE OF BĂRBULESCU v. ROMANIA | 3 | Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for correspondence;Respect for private life) | András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1979 and lives in Bucharest. 6. From 1 August 2004 to 6 August 2007, he was employed by a private company (“the employer”) as an engineer in charge of sales. At his employer’s request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. 7. On 13 July 2007 the employer informed the applicant that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed that he had used the Internet for personal purposes, contrary to internal regulations. The applicant replied in writing that he had only used Yahoo Messenger for professional purposes. When presented with a forty-five-page transcript of his communications on Yahoo Messenger, the applicant notified his employer that, by violating his correspondence, they were accountable under the Criminal Code. The fortyfive pages contained transcripts of all the messages that the applicant had exchanged with his fiancée and his brother during the period when his communications had been monitored; they related to personal matters involving the applicant. The transcript also contained five short messages that the applicant had exchanged with his fiancée on 12 July 2007 using a personal Yahoo Messenger account; these messages did not disclose any intimate information. 8. On 1 August 2007 the employer terminated the applicant’s employment contract for breach of the company’s internal regulations which stated, inter alia: “It is strictly forbidden to disturb order and discipline within the company’s premises and especially ... to use computers, photocopiers, telephones, telex and fax machines for personal purposes.” 9. The applicant challenged his employer’s decision before the Bucharest County Court (“the County Court”). He complained that this decision had been null and void since, by accessing his communications, his employer had violated his right to correspondence protected by the Romanian Constitution and the Criminal Code. 10. In a judgment of 7 December 2007, the County Court dismissed his complaint on the grounds that the employer had complied with the dismissal proceedings provided for by the Labour Code and noted that the applicant had been duly informed of the employer’s regulations that prohibited the use of company resources for personal purposes. The County Court’s judgment reads, in its relevant parts: “The court takes the view that the monitoring of the [applicant]’s Yahoo Messenger communications from the company’s computer ... during working hours – regardless of whether the employer’s actions were or were not illegal (îmbracă sau nu forma ilicitului penal) – cannot affect the validity of the disciplinary proceedings in the instant case... However, since the [applicant] claimed during the disciplinary proceedings that he had not used Yahoo Messenger for personal purposes but rather for advising clients on the products offered by his employer, the court finds that checking the content of the [applicant]’s communications was the only method for the employer to verify the [applicant]’s line of defence. The employer’s right to monitor their employees’ use of the company’s computers in the workplace falls within the broad scope of the right to check the manner in which professional tasks are complete. As long as the employees’ attention ... had been drawn to the fact that, not long before the applicant had received a disciplinary sanction, another colleague had been dismissed for having used the Internet, the telephone and the photocopiers for personal purposes and they had been warned that their activity was under surveillance (see notice no 2316 of 3 July 2007 that the applicant had signed ...) it cannot be held against the employer that he had not proven transparency and that he had not been open with regard to his activities in monitoring the use of the computers by its employees. The Internet in the workplace must remain a tool at the employee’s disposal. It was granted by the employer for professional use and it is indisputable that the employer, by virtue of the right to monitor the employees’ activities, has the prerogative to keep personal use of the Internet monitored. Some of the reasons that make the employer’s checks necessary are the possibilities that through use of the Internet employees could damage the company’s IT systems, or engage in illicit activities in the company’s name, or reveal the company’s commercial secrets.” 11. The applicant appealed against this judgment. He claimed that emails were also protected by Article 8 of the Convention as pertaining to “private life” and “correspondence”. He also complained that the County Court had not allowed him to call witnesses to prove that the employer had not suffered as a result of his actions. 12. In a final decision of 17 June 2008, the Bucharest Court of Appeal (“the Court of Appeal”) dismissed his appeal and upheld the judgment rendered by the County Court. Relying on EU Directive 95/46/EC, the Court of Appeal ruled that the employer’s conduct had been reasonable and that the monitoring of the applicant’s communications had been the only method of establishing if there had been a disciplinary breach. With regard to his procedural rights, the Court of Appeal dismissed the applicant’s arguments, stating that the evidence already before it was sufficient. The Court of Appeal’s decision reads, in its relevant parts: “In view of the fact that the employer has the right and the obligation to ensure the functioning of the company and, to this end, [the right] to check the manner in which its employees complete their professional tasks, and of the fact that [the employer] holds the disciplinary power of which it can legitimately dispose and which [entitled it] to monitor and to transcribe the communications on Yahoo Messenger that the employee denied having had for personal purposes, after having been, together with his other colleagues, warned against using the company’s resources for personal purposes, it cannot be held that the violation of his correspondence (violarea secretului corespondenţei) was not the only manner to achieve this legitimate aim and that the proper balance between the need to protect his private life and the right of the employer to supervise the functioning of its business was not struck.” | 0 |
test | 001-160995 | ENG | SVN | CHAMBER | 2,016 | CASE OF PERAK v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | András Sajó;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1963 and lives in Mežica. 6. On 22 August 2003 the applicant brought criminal charges (“criminal action”) for defamation against A.Š., thus undertaking criminal prosecution as private prosecutor. Along with the criminal action, the applicant made a motion to be awarded compensation for pecuniary and non-pecuniary loss arising from the commission of the criminal offence in question. 7. On 16 November 2006 the Ljubljana District Court handed down its judgment and found A.Š. guilty of the criminal offence of defamation, giving him a suspended sentence of one month in prison and ordering him to pay the costs of the proceedings. In respect of the applicant’s claim for compensation, the district court held that the claim was unsubstantiated and directed the applicant to seek compensation in civil proceedings. 8. Both parties appealed against the judgment before the Ljubljana Higher Court. In particular, the applicant alleged that there had been a violation of the Criminal Code and that the punishment imposed on A.Š. had been too lenient. He also complained about the fact that the first-instance court had not ruled on his claim for compensation, despite the fact that there had allegedly been enough material in the case file to enable it to rule on the matter. 9. On 11 March 2008 the Ljubljana Higher Court granted the applicant’s appeal in respect of the punishment and increased it to three months of suspended sentence. However, it dismissed the complaint concerning the applicant’s unsuccessful claim for compensation, confirming the lower court’s view that it had not been substantiated. 10. The applicant did not institute separate civil proceedings for compensation. 11. On 12 May 2008 A.Š. lodged with the Supreme Court a request for the protection of legality (an extraordinary legal remedy whereby to challenge the procedural and substantive legality of final decisions), alleging an incorrect application of the Criminal Procedure Act. In particular, he alleged that the applicant’s criminal action had been brought out of time. 12. On 27 May 2008 the Ljubljana District Court notified the applicant’s representative that on 12 May 2008 A.Š. had lodged a request for the protection of legality; however, the notification did not include a copy of the said request for the protection of legality. 13. On 4 July 2008, pursuant to Section 423 of the Criminal Procedure Act, the request for the protection of legality was sent to the Supreme State Prosecutor for a response. 14. In that response, the Supreme State Prosecutor agreed that the criminal action had been brought out of time. This response was served on A.Š. and his representatives. 15. However, neither the applicant nor his representative were served with that response; nor were they ever served with the request for the protection of legality. 16. On 28 August 2008 the Supreme Court, without having informed the parties of the date of the deliberation session, deliberated in private and upheld the request for the protection of legality, dismissing the applicant’s action as having been lodged out of time. Further, it ordered the applicant to pay the costs of proceedings including the costs and attorney’s fees incurred by A.Š. and a lump sum covering court fees of 600 euros (EUR). 17. Not being aware that the request for the protection of legality had already been decided, on 3 September 2008 the applicant’s representative requested the relevant documentation from the Ljubljana District Court. 18. On 5 September 2008 the Ljubljana District Court informed the applicant’s representative that the case-file documents had been with the Supreme Court since 30 June 2008. Accordingly, on the same day the applicant’s representative requested from the Supreme Court the documentation regarding the request for the protection of legality. 19. On 12 September 2008 the Supreme Court informed the applicant’s representative that A.Š. had lodged a request for the protection of legality which had been upheld on 28 August 2008. 20. On 22 September 2008 the Supreme Court’s judgment was served on the applicant’s representative. 21. On 20 November 2008 the applicant lodged a constitutional complaint. Citing Articles 14, 22 and 23 of the Constitution, the applicant claimed that he had not been afforded equality before the law and that his right to judicial protection and his right to equal protection had been violated as he had not been given the opportunity to participate in the proceedings before the Supreme Court. He also alleged violations of the Convention, citing Articles 6 and 14 and Article 1 of Protocol No. 1, the latter in respect of the fact that he had been ordered to pay the opposite party’s costs of the proceedings. 22. On 5 January 2009 the Constitutional Court rejected the applicant’s complaint. | 1 |
test | 001-183341 | ENG | HUN | COMMITTEE | 2,018 | CASE OF A.S. v. HUNGARY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 4. The applicant was born in 1968 and lives in Budapest. 5. The applicant was employed at a State institution. His employment was terminated in 2013. Upon the termination of his employment, a certain part of his severance payment was taxed at a 98% rate, in the amount of 5,648,101 Hungarian forints (HUF) (approximately 18,800 euros (EUR)). | 1 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.