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test | 001-158738 | ENG | BGR | CHAMBER | 2,015 | CASE OF RADEV v. BULGARIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev | 5. The applicant was born in 1969 and is serving a life sentence in Varna Prison. 6. The facts of the case may be summarised as follows. 7. On 10 November 1989 the applicant was convicted and sentenced to death. The Supreme Court confirmed this sentence on 15 January 1990. The applicant was placed in Pleven Prison and was not executed because a presidential moratorium on the execution of death sentences was introduced in the meantime. 8. After the death penalty was abolished in Bulgaria, the Vice-President commuted the applicant’s sentence to life imprisonment on 21 January 1999. On 7 June 1999 the authorities placed the applicant under a “special regime” to serve his sentence, and on 11 June 1999 they transferred him to Varna Prison, where he remained until June 2004. Between June 2004 and June 2007 the applicant was detained in Pleven Prison, and on 27 June 2007 he was transferred again to Varna Prison, where he was at the time the most recent information was submitted to the Court, in late 2013. 9. At times he shared his cell with other life prisoners who were serving their sentences under the “special regime”. 10. According to the applicant, throughout the entire period of his detention he has been held in cells not equipped with sanitary facilities, and has only been allowed to go to the toilet three times a day. During the rest of the time he has had to relieve himself in his cell in a bucket which he could wash out once a day. The prison authorities have not provided him with chemicals for disinfecting the bucket. 11. He has been permanently locked in his cell. 12. According to the Government, between 2004 and 2007 in Pleven Prison the applicant was placed in a cell which was only locked at night. This allowed him unlimited access to the toilet, situated in the wing’s corridor, between 5.30 a.m. and 8 p.m. Furthermore, toilets and sinks with running water were installed in all cells in Pleven Prison in 2008. 13. In Varna Prison the applicant was allowed to go to the lavatory more than three times a day. In particular, he had access to sanitary facilities and hot water also when he was taken out of his cell for his hour’s exercise in the open air. Without specifying further, the Government also stated that this was also the case when he took part in the weekly prison activities. A toilet and a sink with running water were installed in his cell in August 2012. 14. Between 7 June 1999 and 6 December 2005 the applicant was held under the most restrictive “special regime”. Under this regime prisoners were locked permanently in their cells, and could only communicate with other life inmates and not with the general prison population. In December 2005 a Commission for the Execution of Sentences changed the applicant’s regime to the lighter “enhanced regime” which became called the “severe regime” with the adoption of the Execution of Punishments and Pre-Trial Detention Act in June 2009. He was able to take part in religious discussions for up to an hour a week and to play table tennis for half an hour up to twice a week. 15. The Government submitted annual psychological assessments of Mr Radev in respect of 2009, 2010, 2012 and 2013. According to those assessments, the applicant demonstrated anti-social behaviour and periodically engaged in conflict with other inmates, whom he also incited to go on hunger strike as a means of pressuring the prison authorities into taking decisions favourable to them. According to the Government, the applicant had been disciplined twenty-six times for breaching the internal rules, and had only received four good-conduct awards. On six occasions he was punished for keeping an unauthorised mobile telephone and/or charger and SIM cards for it in his cell; once for keeping an item which could be used to make a hand-knife; and another time for keeping a small foldable hand-knife. On two occasions the punishments were for violent altercations with other life prisoners. One of those occasions was described by the prison authorities as “not having escalated to the level of lasting tension, but rather being a momentary emotional outburst not uncommon for both the inmates involved”. In the other incident, the physical engagement had been preceded by verbal arguments on the part of both prisoners, and the prison guards rapidly managed to separate the inmates and defuse the tension. When the applicant considered a situation was detrimental to him, he usually threatened legal action, and sometimes attempted self-harm or suicide as a means of “persuading” the prison authorities. He was emotionally unstable and had a tendency to contest the decisions of the prison authorities. Because of all this the prison authorities were not considering a change in the applicant’s prison regime. 16. After the Government had submitted their observations to the Court, the applicant complained that he was serving his sentence in inadequate material conditions. In particular, there was insufficient fresh air and lighting in his cell, which itself was dilapidated and infested with cockroaches, and it was impossible for him to maintain personal hygiene as he had no access to hygienic or cleaning products. He was permanently handcuffed when outside his cell, the food was rather poor, and so was the medical care provided to him in prison. Lastly, no work had been offered him, nor did he have any meaningful occupational activities. 17. Between 2007 and 2011 the applicant brought several claims for damages under the State and Municipalities’ Responsibility for Damage Act 1988 (“the SMRDA”) in connection with various aspects of his conditions of detention. The Supreme Administrative Court rejected all of them as inadmissible, finding in particular either that the prison authorities had not acted unlawfully or that the applicant had not established that he had suffered as a result of those conditions. | 1 |
test | 001-154751 | ENG | POL | ADMISSIBILITY | 2,015 | SZWED-WÓJTOWICZ v. POLAND | 4 | Inadmissible | Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant, Ms Danuta Szwed-Wójtowicz, is a Polish national, who was born in 1949 and lives in Łódź. She was represented before the Court by Ms A. Podciechowska, a lawyer practising in Łódź. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 February 1995 a prosecutor of the District Prosecutor’s Office in Łódź held a press conference and informed the public that company A., of which the applicant owned 90 per cent of shares, had been issuing shortterm obligations without a necessary licence to run a bank-like operations. 5. On 6 April 1995 the prosecutor charged the applicant with offences of running bank-like operations without licence and of issuing obligations without permission by the Securities Commission (Komisja Papierów Wartościowych). 6. On 5 February 1998 a bill of indictment against the applicant was lodged with the Łódź District Court. The applicant was accused of six various offences connected with the running a company conducting banklike activities without necessary licences. Another bill of indictment, concerning further similar charges, was lodged with the same court on 26 March 1998. The Łódź District Court examined the cases jointly. 7. By a judgment of 27 June 2006 the applicant was acquitted of two charges and convicted of two other charges of fraud. She was sentenced to five years and six months’ imprisonment. The applicant appealed. 8. On 26 November 2007 the Łódź Regional Court dismissed her appeal. 9. The applicant lodged a cassation appeal with the Supreme Court. On 6 March 2009 the Supreme Court held a hearing and dismissed the applicant’s appeal, finding that it was manifestly illfounded. Having heard the parties, the court gave orally brief grounds for its decision. 10. The copy of the decision contained information that under Article 535 § 2 of the Code of Criminal Procedure no written grounds for that decision shall be prepared. 11. In 1995 the applicant had a stroke (udar niedokrwienny mózgu). Subsequently, she was diagnosed with chronic insufficiency of brain blood vessels (przewlekła niewydolność naczyń mózgowych) resulting in multiple brain strokes with successive left-side paresis (udar mózgu z niedowładem lewostronnym), narrowing of carotid arteries (zwężenie tętnic szyjnych) as a result of arteriosclerosis (miażdżyca), chronic pancreatitis (przewlekłe zapalenie trzustki), degenerative vertebral alterations of the pectoral and lumbar part (zmiany zwyrodnieniowe kręgosłupa w odcinku piersiowym i lędźwiowym), widening of abdominal aorta with mural thrombus (poszerzenie aorty brzusznej ze skrzepliną przyścienną), hypertension and depressive disorders. 12. Since 1995 the applicant has been treated in hospital several times. For the last time before her detention she was hospitalised between 22 and 28 April 2010. She was admitted to hospital because of severe abdominal pain. She was discharged with a recommendation to remain under the medical care of an internist, gastroenterologist, vascular surgeon and psychologist. She was also advised to follow a special diet and to regularly take medication. 13. On 22 June 2009 the Disability Board gave a decision, attesting that the applicant was suffering from significant disability (niepełnosprawność stopnia znacznego). This decision was granted for a period until 30 June 2012. 14. On 5 November 2010 the applicant was arrested and taken to the Łódź Prison no. 1 in order to serve her sentence of imprisonment. She was detained in that establishment until 14 December 2010. On the later date she was transferred to the Grudziądz Prison no. 1 where she remained until 15 February 2011. On 16 February 2011 the applicant was transferred to the Łódź Prison no. 1. 15. On the date of her admission to prison, the applicant was examined by a prison doctor, a psychiatrist and a cardiologist. A prison doctor recommended a course of medication and a light diet. He also advised that the applicant be provided with a lower bed in a cell. Moreover, a cardiologist stated that the applicant did not need to be detained in a prison hospital. 16. On 6 November 2010 the applicant was examined by a neurologist and subsequently on 9 and 15 November 2010 by an internist. 17. On 13, 14, 15 and 16 December 2010 the applicant had further medical consultations. On 21 December 2010 she had appointment with a psychiatrist and on 27 December 2010 she was examined by a prison doctor. On 12 January 2011 she was consulted by an internist, on 17 January by a dermatologist and on 18 January by a surgeon. On 19 January 2011 she had blood tests and abdominal ultrasonography. On 26 January 2011 she was again consulted by an internist. 18. On 3 February 2011 a prison doctor certified that the applicant could be treated in prison. 19. On 10 February 2011 she had consultation with a neurologist and on 14 February 2011 with an internist. On 23 February 2011 she underwent laboratory tests. She had further medical appointments on 28 February 2011; 7, 8, 18 and 22 March (private consultation with a vascular surgeon); 23 and 31 March; 7 April; 4, 9 and 23 May 2011. On 2 and 30 March 2011 she had blood tests. 20. On 9 May 2011 a prison doctor opined that the applicant might be treated in the conditions of detention. On the same day she underwent Doppler ultrasonography of carotid and vertebral arteries. She had further medical consultations on 7, 20 and 21 June 2011. On 1 July 2011 she underwent electroencephalography (EEG). 21. On 22 July 2011 she was consulted by a prison doctor. On 8 August 2011 the prison doctor decided to maintain the same pharmacological treatment for the applicant. 22. On 9 August 2011 the applicant had a computed tomography (CT) of the head. On 19 September 2011 she had neurological and on 5 January 2012 gastrological consultations. 23. On 21 September 2011 a prison doctor ascertained that the applicant may be treated in prison. 24. On 12 October 2011 the applicant had blood tests. On 19 October 2011 she was examined by a prison doctor. On 20 October 2011 she underwent a computed tomography of her chest. 25. On 27 October and 4 November 2011 the applicant had bacteriological tests. On 21 November she underwent abdominal ultrasonography. 26. On 6 and 22 December 2011 she was consulted by a pulmonologist and a prison doctor respectively. 27. On 10 January 2012 a prison doctor, after conducting psychiatric and gastrological consultations (on 2 and 5 January 2012 respectively), issued a medical certificate on the applicant’s condition for the purposes of the judicial proceedings concerning the applicant’s request for temporary release (see paragraphs 33-38 below). The certificate stated that the applicant could be treated in prison. 28. On 30 and 31 January 2012 the applicant was taken for one-day observation in the hospital of the Łódź Prison no. 2 after having fainted in the court. She stayed under cardiological surveillance and had neurological consultation. Moreover, she had blood tests, electrocardiography (ECG) and CT of the head. The CT of the head indicated no fresh blood incidents in the central nervous system. After those examinations doctors concluded that the applicant could remain in prison and that there was no need for further hospitalisation. They noticed that the applicant exaggerated her condition. 29. On 3 and 7 February 2012 the applicant was consulted by a psychiatrist and in internist respectively who recommend the continuation of the previous pharmacological treatment. 30. On 19 March 2012 the applicant underwent abdominal CT. On 28 March 2012 she had blood tests. Those examinations indicated the presence of gallstones in bile duct. Having regard to those results, on 11 April 2012 a prison doctor referred the applicant to a surgeon. The consultation took place on the same day. Subsequently, the applicant was consulted by an internist on 16 April, 7 May and 3 and 16 July 2012. 31. Since the beginning of her detention the applicant has been receiving light diet. 32. The Government submitted that according to the information provided by the Director of the Medical Service of the Łódź Prison no. 1, the applicant was able to move around independently. She did not need help from third parties. She never reported to the prison authorities that she needed assistance in her basic daily activities. She has been constantly receiving pharmacological treatment. 33. On 29 November 2010 the applicant requested to be granted temporary release (przerwa w karze). She referred to her numerous ailments and the need to have them treated properly which, in her submission, was impossible in prison, in particular in respect of her persistent neurological condition resulting from repeated strokes. In February 2011 the applicant repeated her request. 34. On 16 June 2011 the Łódź Regional Court refused to allow the applicant’s request. It was of the view that the grounds for allowing a temporary release, provided for by Article 153 § 2 of the Code of Execution of Sentences, did not obtain in the case. On the basis of two certificates issued by doctors working for the prison medical service, the court found that despite being of fragile state of health, the applicant had appropriate medical care in detention. In particular, she was consulted by various specialists and underwent necessary examinations. Both certificates stated that the applicant was fit for detention. The court stressed that the applicant remained under constant medical care. Importantly, the court noted that the applicant was not entirely interested in improving her state of health as on several occasions she had been disciplinary punished for storing medication and for refusing to take it in the presence of a nurse. 35. The applicant appealed. She argued, inter alia, that the Regional Court had erred in the establishment of facts. In this respect, she contested the lower court’s finding that the applicant was fit for detention despite her numerous ailments. She also complained about the Regional Court’s reliance on the opinions of prison doctors and its refusal to admit expert opinions relevant for the applicant’s condition. 36. On 31 August 2011 the Łódź Court of Appeal quashed the Regional Court’s decision and remitted the case. It concurred with the lower court that the applicant’s state of health was under constant monitoring and that she had access to specialised treatment in detention. However, given the character of the applicant’s ailments, her state of health needed to be also assessed by relevant specialists, in particular, a neurologist and a gastroenterologist. The medical opinions relied on by the Regional Court did not contain this kind of assessment. 37. In its decision of 24 February 2012 the Łódź Regional Court refused to grant the applicant a temporary release. It was of the view that the applicant’s condition could be treated in detention, having regard to a medical certificate of 10 January 2012 (see paragraph 27 above). It noted that the applicant received necessary medical care, including consultations by specialists. The applicant’s medical documentation did not substantiate a conclusion that her continued detention would seriously endanger her life or health. 38. The applicant appealed. The Łódź Court of Appeal dismissed her appeal on 24 April 2012. It shared the conclusions of the lower court as to the applicant’s state of health and her being fit for detention. The appellate court stressed that it transpired from the medical opinion of 10 January 2012 that the applicant had been examined not only by general practitioners but also by specialists in surgery, psychiatry, neurology and gastroenterology. The opinions of the specialists confirmed that the applicant could be treated in detention. The Court of Appeal also noted that further examinations and consultations had been planned which indicated that the applicant received adequate medical care. 39. It appears that the applicant was released on an unspecified date in 2014. 40. The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009; Sławomir Musiał v. Poland, no. 28300/06, §§ 48-61 ECHR 2009... (extracts); and Orchowski v. Poland, no. 17885/04, §§ 74-85, 13 October 2009. More recent developments are described in the Court’s decision in the case of Łatak v. Poland (dec.) (no. 52070/08, §§ 25-54, 12 October 2010). | 0 |
test | 001-154368 | ENG | ROU | ADMISSIBILITY | 2,015 | GREEK CATHOLIC PARISH PESCEANA AND OTHERS v. ROMANIA | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicants in the present case are the Greek-Catholic parish of Pesceana, a religious body created on 20 January 2005 in Pesceana, as well as some of its members, Romanian nationals living in Pesceana. Their names, year of birth and place of residence appear in the first appendix to this report. The applicant Mr Victor Tudor acted as their representative. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The Romanian Greek-Catholic Association was granted leave to intervene in the proceedings. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 19 January 2005 Mr Victor Tudor, who at that time was the Orthodox priest of the Pesceana parish, decided together with 358 members of his parish, to join the Eastern Catholic Church (“the GreekCatholic Church”). The next day they were recognised as a parish by the GreekCatholic Archdiocese of Blaj (Mitropolia Româna Unită cu Roma Blaj) and Mr Tudor was ordained priest of that parish. The applicant parish thus became legitimate under the applicable laws. 6. On 22 January 2005 the Pesceana local authorities refused to recognise the new parish, denied its members access to the village church and cemetery, and advised the Râmnicul Orthodox Diocese (Episcopia Râmnicului) to take appropriate action against Mr Tudor. On 29 March 2005 the local council reiterated its decision. On 3 June 2005 they also refused to allow the Greek-Catholic parish to hold its religious gatherings in a deserted school building. 7. On 24 January 2005 Mr Tudor resigned from his previous position in the Orthodox Church. He was defrocked the next day, and the Orthodox Church sent a new Orthodox priest to the local parish. 8. On 27 January 2005 the Râmnicul Orthodox Diocese lodged a request, by means of the urgent procedure (ordonanţă preşedenţială), concerning ownership of Church property. In a final decision of 8 March 2005 the Vâlcea County Court ordered Mr Tudor to surrender the property belonging to the Orthodox Church to the plaintiff and to stop using the village church and cemetery for Greek-Catholic practices. 9. On 24 February 2005 the Ministry of Culture and Religious Affairs asked the GreekCatholic archdiocese to re-examine its decision to ordain Mr Tudor as a Greek-Catholic priest in Pesceana. They suggested that his withdrawal might facilitate the dialogue between the two parishes in the community. 10. On 27 May 2005 the Pesceana local authorities transferred ownership of the cemetery to the Orthodox parish. On 17 June 2005 they delivered the title deeds for the land to the Orthodox parish. However, on 10 October 2008 in proceedings instituted by the Pesceana local authorities against the Greek-Catholic Church, the Vâlcea County Court declared the deeds null and void. 11. Several members of the Pesceana Greek-Catholic parish lodged a complaint against the local authorities and the Orthodox community with the National Council against Discrimination. The council examined the administrative decision of 22 January 2005 and noted that the plaintiffs had been denied access to the village church and cemetery. It concluded that the local authorities had breached the applicants’ freedom of conscience and disregarded their religious autonomy. Consequently, the Council issued a warning to the local authorities. It gave its decision on 31 August 2005. 12. The conflicts between the two religious communities escalated. The Orthodox community prohibited the Greek-Catholics from entering the cemetery to bury their dead or honour their memory. According to the applicants, they suffered increased pressure to revert to Orthodoxy: they were asked to sign a declaration renouncing their Catholicism if they wanted the local authorities to deliver any official service; they received unjustified fines; some of them were threatened with dismissal from their jobs; and the local school organised a public demonstration against the Catholic Church. Some 300 individuals gave written statements that they had been misled by Mr Tudor into changing their faith. Some people lodged criminal complaints against those who had allegedly threatened them in order to force them to revert to Orthodoxy. The Greek-Catholic archdiocese intervened in their favour by engaging in a written exchange with the local authorities. It was, however, to no avail. 13. Several criminal complaints were also lodged by both parties to the conflict, mainly concerning incidents that occurred in 2005 and 2006. 14. On 21 March 2005, using the urgent procedure, the applicant parish sought to compel the Orthodox parish to allow Greek-Catholics the right to use the village cemetery to bury their dead and for memorial services. 15. On 6 September 2005 the Drăgăşani District Court found in favour of the applicant parish. On 19 January 2006 the Vâlcea County Court upheld the decision, which thus became final. The courts held that the applicant parish had been recognised by the Greek-Catholic Church and was thus legally constituted. It reiterated that, according to the Religious Freedom Act, as the village had only one cemetery, all individuals had to have access to the burial grounds, irrespective of their faith. 16. As the Greek-Catholics continued to be denied access to the cemetery by the Orthodox community, the applicant parish sought the services of a bailiff. On 3 February 2006 the County Court issued an enforcement order concerning the decision of 19 January 2006. 17. On 13 February 2006 the bailiff notified the Pesceana Orthodox Church and the Râmnicu Orthodox Diocese of his intention to enforce the above decision and sought assistance from the police. On 18 and 20 February 2006 a group of persons from Pesceana and the neighbouring villages did not allow the applicants, the bailiff or the police to enter the cemetery. Not even the police intervention on behalf of the applicants was able to deter the opposing parish. According to the bailiff’s report, the new Orthodox priest refused to assist him and the GreekCatholics of the village in the enforcement attempts or to talk with his followers. He claimed that he was engaged in other religious duties at that time. As the two parties became violent, the bailiff stopped the proceedings in order to avoid any escalation. 18. The Orthodox parish objected to the enforcement proceedings and on 22 February 2006 the Drăgăşani District Court temporarily suspended the enforcement order until a final ruling had been given on the objection. 19. On 16 May 2006 the Drăgăşani District Court held that the decision of 6 September 2005 was enforceable until the litigation concerning ownership of the cemetery had been examined (see paragraph 10 above). It nevertheless maintained the suspension of the enforcement order until a final ruling had been given on the objection. The decision became final on 3 November 2006, when the Vâlcea County Court dismissed an appeal lodged by the applicants. 20. On 19 May 2006 several members of the applicant parish (see appendix two below) lodged an action against the Orthodox parish and the Râmnicu Orthodox Diocese seeking access to the cemetery to bury their dead and perform the relevant rituals. 21. On 14 October 2008 the Vâlcea County Court partially allowed the request. A final ruling in the case was given on 26 February 2009 by the Piteşti Court of Appeal. The courts took note of the fact that the title deeds delivered to the Orthodox parish had been declared null and void. Using the same arguments as those advanced by the County Court under the urgent procedure, the courts recognised the rights of the Greek-Catholic members of the community to be buried in the Greek-Catholic tradition. The Court of Appeal further decided that persons who embraced the Greek-Catholic faith would not be allowed to perform Greek-Catholic rituals for deceased members of their families who had been buried according to the Orthodox tradition. In so deciding, the Court of Appeal considered that the person’s own convictions at the time of death should be subsequently respected by the family in the choice of rites. 22. After communication of the application, the Government sought information about the current situation in Pesceana. The State Secretary for Religious Affairs approached the Râmnicu Orthodox Diocese, which informed him that Greek-Catholics had free access to the cemetery and that in 2007 the Pesceana Greek-Catholic parish had received 30,000 Romanian Lei from the State budget in order to build a church. 23. The Pesceana mayor’s office informed the Government that neither religious community was being obstructed from using the cemetery and that the police had recorded no incidents in recent years. Statements by the two local priests were attached to the mayor’s report. The Orthodox priest explained that the Greek-Catholic priest was allowed into the cemetery in order to bury the deceased members of his community, but accused him of performing Greek-Catholic rituals for deceased Orthodox believers. Mr Tudor declared that their access was still restricted and that pressure had been exerted on members of the Greek-Catholic community to resign from their Church and join the Orthodox Church. 24. In 2011 the Orthodox priest lodged a criminal complaint against a Greek-Catholic believer who had buried her deceased parent in the village cemetery according to Greek-Catholic rites. The prosecutor decided not to prosecute, reiterating that the Greek-Catholic believers had a right, which had been recognised by a court order, to use the cemetery; the prosecutor also noted that no damage had been done to the neighbouring graves belonging to Orthodox families. Another burial took place in 2011 and allegations of police brutality against Greek-Catholic believers in the aftermath of the religious service were dismissed as unfounded by the prosecutor. 25. It appears that the Pesceana local authorities have recently decided to create a new cemetery for all faiths. 26. Excerpts from the relevant domestic law concerning the enforcement of final judgments are given in Bogdan Vodă Greek-Catholic Parish v. Romania, no. 26270/04, §§ 31-32, 19 November 2013. 27. The relevant domestic law and practice concerning the general situation of recognised religious groups, and in particular the situation of the Greek-Catholic community, are described in Remetii pe Somes GreekCatholic Parish v. Romania (dec.), no. 13073/03, §§ 11-12, 9 September 2014. | 0 |
test | 001-177434 | ENG | UKR | COMMITTEE | 2,017 | CASE OF BEZBORODOV AND OTHERS v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-1 - Reasonable time) | Nona Tsotsoria;Gabriele Kucsko-Stadlmayer | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. | 1 |
test | 001-160432 | ENG | GBR | CHAMBER | 2,016 | CASE OF DALLAS v. THE UNITED KINGDOM | 3 | Remainder inadmissible;No violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Nullum crimen sine lege) | Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano | 6. The applicant was born in 1977 and lives in Luton. 7. The applicant was summoned to attend jury service at the Crown Court on 4 July 2011. 8. On the morning of the 4 July the jurors were shown a video in relation to their service and were given verbal instruction from the court’s jury officer that they were not permitted to research their cases on the Internet or to research the defendants or any of the individuals involved in the trial. Notices in the jury waiting room contained the following warning: “You may also be in contempt of court if you use the internet to research details about any cases you hear along with any cases listed for trial at the Court ...” 9. The notices made it clear that contempt of court was punishable by a fine or by imprisonment. 10. The applicant was selected to serve on a jury in a trial of a defendant charged with grievous bodily harm with intent. The trial commenced that afternoon. When the jury were sworn, the applicant took an oath or affirmation that she would faithfully try the defendant and give a true verdict according to the evidence. 11. Before the case was opened by the prosecution, the judge gave a number of directions to the jury. These underlined the importance of deciding the case only on the basis of what the jury saw and heard in the courtroom. Two consequences were identified by the judge. The first was that they should not speak about the case to anybody. He continued: “The second consequence is a newer one: that you do not go on the internet. You have probably read in the last few weeks about a juror who did go on the internet; went on Facebook and severe problems followed for that juror. I am sure you will not want any of those. So, the rule is – and it is told to every jury – that not only do you not discuss it, but you do not go on the internet; you do not try and do any research of your own; you do not discuss it on Facebook; you do not tweet about it; or anything of that nature. So, simply, once you leave this room you do not talk about it or deal with it in any way with anybody. We ask you to observe what goes on in this room. The evidence has been carefully considered. It is put before you in a carefully considered way. That is why you are not to discuss it with anybody else or do your own research, or discuss it on Facebook – because it is carefully controlled ...” 12. The trial continued on 5 and 6 July 2011. On 5 July the trial judge allowed a prosecution application to adduce evidence of the defendant’s bad character. The disclosure gave details of a previous sentence for assault occasioning actual bodily harm. It was not disclosed that the defendant had also been charged with rape in respect of the same offence but had been acquitted. 13. On 6 July 2011 the jury retired to consider their verdict. At the end of the court day the judge sent the jury home to return on 8 July 2011. 14. After the court had risen, one of the jurors in the case informed the court usher that a juror, whom she identified as the applicant, had been on the Internet and had found out about the previous conviction and that it involved rape. The trial judge was informed. 15. On 8 July 2011, after hearing from the juror in court, the judge summoned the jury foreman, who confirmed that there had been some reference to the matter to which the juror had referred. The judge then called the applicant into court. He informed her of what had been said and that she should not say anything at that stage. He gave her the opportunity, which she accepted, of speaking to a barrister in order to take advice on the question of contempt of court. After discussion with the applicant, the barrister informed the court that the applicant’s position was that her behaviour regarding the Internet was not deliberate. She therefore claimed to have a defence to the allegation of contempt of court. The judge explained to her that the matter would be referred to the Attorney General and that there would be a police investigation. 16. The judge subsequently discharged the jury and the trial was aborted. 17. The police obtained statements from the eleven other jurors at trial. The statements showed that during the jury deliberations the applicant stated that she had conducted Internet research and that her research had showed that the previous conviction also included an allegation of rape. Most of the other jurors had reacted to this by making it clear that the applicant had introduced extraneous and impermissible facts into their discussion, contrary to the instructions and directions that they had been given. 18. On 26 July 2011 the police interviewed the applicant under caution. During the interview, the applicant explained what had happened at the commencement of the trial and set out her recollection of what the trial judge had said as follows: “The judge said ... that we should not look, we should not publish anything on Facebook, on Twitter, we should not tell anybody outside the court about the case ...” 19. She said that did not recall that the judge had instructed jurors not to do Internet research. 20. She explained that she had seen a newspaper article concerning the defendant on the Internet on the evening of 5 July 2011. When asked what she was doing on the Internet, she replied that, as she was Greek, she had wished to know the exact translation of the charge facing the defendant. She had therefore searched for “grievous bodily harm”. She had then wished to see how frequent such incidents were in Luton so added “Luton” to the search terms. The article concerning the defendant’s previous conviction had appeared in the list of results. She explained that her recollection was hazy but that she did not remember searching for the defendant by name. She admitted that she had informed the other members of the jury of the information she had found. She said that she was not aware that she had missed any element of the judge’s instructions and that she had had “absolutely no intention” of going against the instructions or directions of the judge. 21. The Attorney General subsequently applied to the Divisional Court for permission to make an application for an order of committal under Order 52 of the Rules of the Supreme Court (“SCR” – see paragraphs 45-46 below). The applicant was informed of the application by letter dated 3 November 2011. 22. On 29 November 2011 the Divisional Court granted permission to make a committal application. 23. On 2 December 2011 a claim form was issued by the Attorney General seeking an order of committal against the applicant for: “contempt of court in conducting Internet research on the case she was trying as a juror in the Crown Court and thereafter in disclosing the extraneous information she had obtained to other members of the jury.” 24. The grounds on which the applicant’s committal was sought were that “her acts created a substantial risk of seriously prejudicing and/or impeding the course of justice in the proceedings with which she was concerned.” 25. Reference was made to further details set out in a sworn affidavit by a legal adviser at the Attorney General’s office. In the affidavit, it was submitted that the evidence in the case demonstrated that the applicant: “deliberately and in breach of instructions given by the jury officer, a warning contained in a written notice, her jury oath or affirmation and directions given by the trial judge, (a) conducted internet research on the case she was trying, and thereby obtained extraneous information about the case, and (b) imparted that extraneous information to other members of the jury whilst the jury were in deliberation.” 26. In her position statement dated 5 December 2011, the applicant accepted that she had searched on the Internet for the words “grievous” and “Luton” while the trial was underway and that she had discussed with other jurors a newspaper report concerning the defendant. She did not accept a specific intent to impede or to cause a real risk of prejudice to the due administration of justice. 27. In a note on behalf of the Attorney General dated 9 January 2012, the test for contempt was set out as follows: “At common law, a contempt of court is an act or omission which creates a real risk of prejudice to the administration of justice, done with the intent of creating such a risk.” 28. The note went on to claim that the applicant’s Internet research and subsequent conduct in relation to it had created a real risk of prejudice to the administration of justice and had been done with the intent of creating such a risk. 29. In written submissions on behalf of the applicant dated 10 January 2012, it was submitted that the offence of contempt of court could be stated as follows: “Where a person knowingly does an act which he specifically intends to impede, or create a real risk of prejudicing, the due administration of justice ...” 30. On 19 January 2012 the application for committal was heard. Counsel for the applicant submitted that the key element that the prosecution had to prove was “specific intent”, that is intent to impede or create a real risk of prejudicing the due administration of justice. He referred to the Attorney General’s position that intent could be inferred from foresight of the consequences and indicated that, while that might be appropriate in some cases, it did not sit so easily with the kind of intent required in the applicant’s case. An exchange then took place between the court and counsel for the applicant, as follows: “[Court]: Can we get this down to the reality of the case. The Crown’s case is that your client deliberately disobeyed the order of the judge. Is that not the same as what you are saying? You disagree with it and you are going to submit to us why the Crown’s case is wrong, but if a juror deliberately disobeys the order if a judge, is that not contempt of court? [Counsel]: Certainly, yes. [Court]: The ‘deliberate’ is the point that matters. [Counsel]: Yes. Yes.” 31. The Attorney General was subsequently asked whether he accepted that in the context of the case he had to satisfy the court, to the criminal standard, that the applicant had deliberately disobeyed the order of the judge. He confirmed that he did. 32. At the conclusion of the evidence and submissions, and after the court had already adjourned, the judges returned to seek further clarification of the correct test for contempt of court. The following test was put to counsel by the bench: “It is a contempt in the context of jury misconduct within the jury room, for a juror deliberately to disobey the direction of the judge and create a risk of prejudice to the due administration of justice.” 33. The judge added: “What that removes is a specific intent in relation to the creation of the risk. The intent is directed at the deliberate disobedience.” 34. The Attorney General expressed himself to be content with the test proposed. Counsel for the applicant requested that the word “thereby” be added following “disobey the direction of the judge and ...”, in order to create a link between the two elements. The Attorney General fully accepted the proposed modification. Counsel for the applicant was pressed on whether he was content with a definition whereby the intent was the deliberate act of disobeying the order, which then had a causative link in creating the risk. It was noted by the judge that this was a slightly different test from the one counsel had earlier proposed. He replied that he was content with the proposed test, and added: “I am reacting as I stand. I hope I can venture to submit that actually, if this is the test, it is perhaps redefining an old law but it is new.” 35. On 23 January 2012 an order for committal was made. The Divisional Court summarised the applicant’s version of events as follow: “36. On her account, effectively, she came across the newspaper reference to [the defendant’s] previous conviction in the local newspaper in Luton by following a route from the word ‘grievous’ through to ‘Luton’ and ‘crime’ and in effect, somehow she stumbled across the newspaper entry.” 36. However, the court rejected her account, explaining: “37. We do not believe that the defendant did not seek information about [the defendant] on the internet. Her inability to remember this particular feature of the case, when she has a detailed recollection of so much else, was not credible. We do not believe that she could have just stumbled across the link to [the defendant’s] previous conviction in the way she described.” 37. The court concluded: “38. We have no doubt that the defendant knew perfectly well, first, that the judge had directed her, and the other members of the jury, in unequivocal terms, that they should not seek information about the case from the internet; second, that the defendant appreciated that this was an order; and, third, that the defendant deliberately disobeyed the order. By doing so, before she made any disclosure to her fellow jurors, she did not merely risk prejudice to the due administration of justice, but she caused prejudice to it. This was because she had sought to arm and had armed herself with information of possible relevance to the trial which, although not adduced in evidence, might have played its part in her verdict. The moment when she disclosed any of that information to her fellow jurors she further prejudiced the administration of justice. In the result, the jury was rightly discharged from returning a verdict and a new trial was ordered. The unfortunate complainant had to give evidence of his ordeal on a second occasion. The time of the other members of the jury was wasted, and the public was put to additional unnecessary expense. The damage to the administration of justice is obvious.” 38. It found that the contempt had been proved to the criminal standard. On sentence, the court explained that misuse of the Internet by a juror was always “a most serious irregularity” and that an effective custodial sentence was virtually inevitable to ensure that the integrity of the process of trial by jury was sustained. A sentence of imprisonment for six months was imposed. The judge noted that pursuant to rules on early release, the applicant would serve three months in prison. 39. Following the handing down of the judgment, an exchange took place between the applicant’s counsel and the bench. The applicant’s counsel sought clarity on the test for contempt of court, explaining: “I am concerned that the test that I was addressing – that we were addressing in preparation of this case – was a different test. We conducted the defence to a different test, and the reasons why it was a different test, I suggest, are threefold. First, the intention is different. Secondly, the risk has been diluted from ‘real risk’ – and, after all, ‘risk’ on the authorities simply means ‘a possibility of occurrence’ to ‘risk’. Thirdly, may I make this submission? This is the first occasion – I do this with some hesitation for I can find no authority – where there has been a contempt of court flowing from a judicial direction. ... It has always historically been the order which has attracted contempt, not the direction, and the idea that a judge gives directions to a jury in the summing-up which could attract contempt and imprisonment is, in my submission, a novel one. I therefore submit this question rhetorically: whether this reformulation that this court has applied in this case is consistent with the common law of contempt.” 40. The court retired to consider the matter before confirming that the appropriate test was applied in paragraph 38 of its judgment (see paragraph 37 above), and that it had been understood that applicant’s counsel had agreed to that test. Leave to appeal was refused. 41. The applicant applied for permission to appeal to the Supreme Court. She argued, inter alia, that the test of contempt of court reformulated by the Divisional Court was not consistent with the common law of contempt of court; and that the reformulation of the offence, after evidence had been led and final submissions concluded, was not compatible with human rights principles and in particular with Articles 6 and 7 of the Convention. 42. On 26 January 2012 the applicant’s petition to appeal to the Supreme Court was refused because the application did not raise an arguable point of law. In particular, the Supreme Court concluded that a suggested distinction between a “direction” and an “order” was not tenable since the meaning of each depended on the context and both could mean the same; and that the deliberate disobedience of a specific order of the judge not to use the Internet in connection with the case unquestionably amounted to contempt of court at common law. 43. From 23 January 2012 to 20 April 2012 the applicant was detained at HMP Holloway. | 0 |
test | 001-180669 | ENG | RUS | COMMITTEE | 2,018 | CASE OF SMIRNOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-167491 | ENG | HUN | COMMITTEE | 2,016 | CASE OF TEMESFŐI AND OTHERS v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria | 4. The first applicant, Mr Béla Temesfői was born in 1979 and lives in Gödöllő. The second applicant, Mr Zoltán Csepi was born in 1971 and lives in Gödöllő. The third applicant, Mr József Molnár was born in 1971 and lives in Gödöllő. The fourth applicant, Mr Tibor Kovács was born in 1972 and lives in Budapest. The fifth applicant, Mr Attila Fekete was born in 1968 and lives in Veresegyház. The sixth applicant, Mr Flórián Márton was born in 1973 and lives in Szada. The seventh applicant, Mr József Kelemen was born in 1980 and lives in Gödöllő. The eighth applicant, Mr István Dudás was born in 1975 and lives in Gödöllő. 5. The applicants were heard as suspects on different dates (the first applicant on 5 July 2002, the second applicant on 3 October 2001, the third and fourth applicants on 9 October 2001, the fifth applicant on 4 October 2001, the sixth applicant on 18 March 2002, the seventh applicant on 27 December 2000 and the eighth applicant on 21 December 2000). 6. The Budapest Prosecutor’s Office preferred a bill of indictment with the Budapest Central Districts Court on 30 June 2003 charging the applicants with fraud and forgery. On 18 May 2011 the Budapest Central Districts Court found the applicants guilty as charged and sentenced them to different punishments (applied reprimands for the first applicant, criminal fine for the second, seventh and eighth applicants and one-year probation for the third, fourth, fifth and sixth applicants). | 1 |
test | 001-179207 | ENG | ROU | CHAMBER | 2,017 | CASE OF N. v. ROMANIA | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;(Art. 35-3-a) Manifestly ill-founded;(Art. 35-3-a) Ratione personae;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Speediness of review);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - General measures);Pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani | 5. The applicant was born in 1959. He is currently detained at Săpoca Psychiatric Hospital, in a section of the hospital located in the municipality of Ojasca (Buzău County). 6. The applicant has been in receipt of a second-degree disability allowance since 1993. 7. On 29 January 2001, following the publication of an article in the national press and a programme broadcast on a national television channel, the police operating at Bucharest police station no. 20 initiated a criminal prosecution against the applicant. He was charged with incest and sexual corruption of his two under-age daughters, aged 15 and 16. He was alleged to have had sexual intercourse with his elder daughter and forced both his daughters to be present while he was having sexual intercourse with his wife. 8. On the same day the applicant was questioned by the police in the presence of an officially appointed lawyer regarding the charges against him, before being placed in police custody for twenty-four hours. 9. On 30 April 2001 the applicant, assisted by an officially appointed lawyer, was questioned by a prosecutor concerning the same charges. 10. On the same day the prosecution, with reference to Article 114 §§ 1 and 2 of the Penal Code (CP), ordered the applicant’s provisional detention in a psychiatric hospital with a view to conducting a medical examination to assess his capacity for discernment. The prosecution noted in that regard that a paranoid affective psychosis diagnostic had been posited on several occasions between 1994 and 1999. It stated the following: “... in the present case there is sufficient circumstantial evidence of the precarious state of health of the accused, who represents an extremely serious danger to society given that he is liable to commit further such antisocial acts.” 11. On the same day the applicant was admitted to the Alexandru Obregia Psychiatric Hospital in Bucharest. He underwent psychiatric examinations which found, inter alia, paranoid impulsive tendencies with high conflict potential. Furthermore, the applicant’s state was described as comprising irritability, suspicion, interpretative tendencies and potential aggression. 12. A forensic medical report was drawn up on 2 November 2001 establishing that the applicant suffered from chronic paranoid schizophrenia and lack of discernment. It recommended putting in place the compulsory medical treatment provided for by Article 113 CP. 13. A preliminary investigation was also instigated against the applicant for the rape of his wife. 14. The prosecution heard the applicant’s wife and two daughters. 15. By decision of 27 February 2002 the prosecution, in the absence of a medical certificate and since the applicant’s daughter had not confirmed the sexual relations with her father, ordered the closure of the criminal proceedings against the applicant for incest. Drawing on the statements of his two daughters, it also concluded that the applicant had forced them to be present while he was having sexual intercourse with his wife, thus committing offences of sexual corruption of minors, but decided to close the proceedings on that count owing to the applicant’s lack of discernment, as found in the forensic medical report of 2 November 2001 (see paragraph 12 above). The prosecution further dropped the rape charge on the grounds that the applicant’s wife had not lodged a criminal complaint against him. Lastly, it referred the case file to the competent court for confirmation of the preventive measure of medical detention. 16. By decision of 22 April 2002 Bucharest District Court 6 upheld the medical detention order. Listing the criminal charges against the applicant, the court stated the following: “In the light of the findings of the psychiatric forensic medical report that N. suffers from chronic paranoid schizophrenia and lacks discernment as regards the offences he committed, and having regard to the recommendations of the [reporting] committee that the preventive detention measure should be imposed on the accused, the court accedes to the [prosecution’s] request and, pursuant to Article 114 CP, confirms the provisional medical detention order and informs the Bucharest Health Department of the implementation of that order.” 17. The applicant did not attend the hearing, nor was he represented by a lawyer in court. 18. The decision was posted on the door to the applicant’s home and in the town hall of Bucharest District 6, where the applicant’s home was located. 19. From 30 January 2001 to 20 January 2003 the applicant was detained in the Alexandru Obregia Psychiatric Hospital. On 21 January 2003 he was transferred to the Poiana Mare Psychiatric Hospital, where he remained until 29 January 2006. The applicant was provided with a neuroleptic- and tranquilliser-based treatment. ... 32. In March 2007, after the entry into force of the amendments to the Code of Criminal Procedure (CPP) requiring periodic and automatic judicial review of the detention (see paragraph 90 below), the judge of Buzău District Court (“the delegated judge”) ordered a psychiatric forensic medical report. 33. In July 2007 the competent medical board drew up a report based on the results of an examination of the applicant, the medical documentation transmitted by the psychiatric hospital, the report by his GP, a social welfare inquiry concerning the applicant conducted on 3 May 2006, the 22 April 2002 decision of Bucharest District Court 6 and the forensic medical report of 2 November 2001. The board found that during his detention the applicant had expressed delusions of grandeur with transient psychotic relapses, had endeavoured to conceal his symptoms, had behaved in a calm, composed manner, had accepted his treatment, had refrained from stirring up trouble with the other patients and had shown little hostility during the treatment. It pointed out, however, that he had been hostile during the examination and had expressed delusional ideas of injustice and his intention to remedy the latter. It concluded that the applicant was suffering from chronic paranoid schizophrenia and that, having regard to the medical documentation, to the evolution in the patient’s condition during his detention and to the psychiatric examination in issue, the detention measure should remain in place. 34. On 15 August 2007 the delegated judge invited Buzău District Court to replace the detention measure provided for in Article 114 CP with the compulsory medical treatment measure provided for in Article 113 CP. 35. On 11 September 2007 the applicant, assisted by an officially appointed lawyer, was heard by the court. He requested his release, seconded by his lawyer. 36. By decision of the same day, Buzău District Court decided to order the applicant’s continued psychiatric detention. It reasoned as follows: “By Criminal Decision No. 588 of 22 April 2002, Bucharest District Court 6 ordered N.’s medical detention on the grounds that he had been charged with having committed the offence of incest, consisting of sexual relations with his 16-year-old daughter, in 2000, and the offence of sexual corruption on the grounds that on 21 January 2001 he had sexual intercourse with his wife in the presence of his two daughters. The psychiatric forensic medical report [of July 2007] shows that the patient suffers from chronic paranoid schizophrenia and points to the advisability of maintaining the preventive detention measure laid down in Article 114 CP. Having regard to the foregoing, the court ... decides to maintain the medical detention measure (Article 114 CP) imposed on patient N.” 37. The applicant took cognisance of that decision in summer 2008, when he underwent a further forensic medical examination. He appealed. 38. By final decision of 19 December 2008 Buzău County Court, referring to the reasoning of the Court of First Instance, dismissed the appeal as manifestly ill-founded after having heard the applicant, assisted by an officially appointed lawyer. 39. The applicant’s detention measure was made subject to several judicial reviews by Buzău District Court and Buzău County Court. It transpires from the decisions adopted, of which the Court has copies, that the applicant was heard by both courts during the different sets of proceedings. 40. He was assisted by various officially appointed lawyers, who, in the proceedings completed before 2016, had confined themselves to referring to the findings of the forensic medical assessments carried out, and had either left it to the discretion of the courts whether or not to maintain the measure or objected to the lifting thereof. 41. Apart from the decisions adopted after 2015, the case file does not indicate whether the prior decisions had been served on the applicant. 42. According to the forensic medical reports drawn up after each review, the applicant, who had not fully acknowledged the fact of his mental illness, had been calm, had not refused his treatment and had refrained from causing trouble with the other patients. On the other hand, the reports stated that he had vehemently denied having committed the criminal offences with which he had been charged, claiming that his former wife had been plotting against him. 43. By decision of 13 October 2008 Buzău District Court maintained the detention measure in respect of the applicant. The court referred to the 22 April 2002 decision and to a forensic medical report drawn up following an examination of the applicant in May 2008, which had recommended maintaining the measure. On 9 January 2009, on appeal from the applicant, Buzău County Court upheld that decision. 44. By decision of 18 February 2010 Buzău District Court dismissed a request submitted by the applicant for the lifting of the detention measure. The court referred to a forensic medical report drawn up after an examination of the applicant the same month, which had recommended maintaining the measure and described the applicant’s delusional ideas concerning the setting up of a new State, his lack of feasible future plans and the fact that he had not fully accepted his drug therapy. 45. By decision of 1 April 2010 Buzău District Court maintained the detention measure in respect of the applicant. It referred to the decision of 22 April 2002 to a forensic medical report drawn up after an examination of the applicant in December 2009, insofar as it recommended maintaining the measure and described the applicant’s delusional ideas concerning the setting up of a new State and his lack of realistic future plans. 46. Furthermore, although this aspect was not mentioned by the court, it transpires from that report that the applicant’s GP had noted an erotomaniac obsession with his former wife, which had indicated a total incapacity for social reintegration and would most likely have triggered conflicts or unforeseeable, potentially dangerous situations had he returned to the apartment where he had lived with his family. The report further noted that the applicant’s friend, who had attended most of the medical boards’ meetings, had come down emphatically in favour of the applicant’s release, claiming that he would accommodate him indefinitely in the apartment which he shared with his mother. However, the assessment board doubted the reality of such support proffered by someone who was himself suffering from psychiatric problems. On the other hand, the report mentioned that the applicant had been plainly rejected by his daughters and his former wife, and that despite the rejection by his former wife and the fact that he himself considered that his detention was the result of scheming on her part, he intended to get back together with her if he was released. 47. By decision of 22 April 2010 the Buzău Court of First Instance dismissed the applicant’s second application for release on the grounds that its decision of 18 February 2010 had meanwhile become final and was therefore res judicata. During the proceedings a forensic medical report had been drawn up on 9 March 2010, reaching conclusions similar to the findings of the report submitted in December 2009 (see paragraph 45 above). 48. In November 2010, May and November 2011 and April 2012 the delegated judge requested the Buzău Institute of Forensic Medicine to carry out psychiatric assessments with a view to periodic reviews of the need to maintain the applicant’s psychiatric detention. 49. The Institute of Forensic Medicine examined the applicant on the aforementioned dates but did not draw up or forward its reports until November 2013. The reports confirmed the diagnosis of the applicant’s condition and proposed maintaining the detention measure. 50. By four separate decisions adopted on 17 and 19 December 2013, the Court of First Instance, citing the case-law of the Court in matters of detention of persons suffering from mental disorders, maintained the detention measure. It referred to the findings of the above-mentioned forensic medical reports. In its decision of 17 December 2013 the court further had regard to a forensic medical report drawn up following an examination of the applicant carried out a few days previously, in December 2013. Furthermore, it referred, broadly, to the “aim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law”, and concluded that the criteria set out in Article 434 § 1 CPP had been satisfied. 51. By three separate decisions adopted on 4 February 2014, Buzău District Court maintained the applicant’s detention measure on the basis of three psychiatric forensic medical reports drawn up following examinations of the applicant in November 2012, May 2013 and November 2013. The Court has not received copies of those reports and decisions. 52. On 1 July 2014 Săpoca Psychiatric Hospital applied to the courts to declare the applicant incapable and place him under guardianship (see paragraph 77 et seq. below for the conduct of the related proceedings). 53. By decision of 19 February 2015, citing the Court’s case-law in matters of detention of persons suffering from mental disorders, Buzău District Court maintained the detention measure in respect of the applicant. It referred to a forensic medical report drawn up after an examination of the applicant in September 2014, which recommended maintaining the measure and referred to the “aim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law”. 54. The operative part of the decision was served on the applicant on 26 February 2015. 55. In April 2015 the applicant appealed to the Judicial Inspection Board of the Higher Council of the Judiciary against the alleged practice of Buzău District Court of conducting retrospective reviews of the need to maintain the detention measure. By decision of 15 June 2015 the Judicial Inspection Board dropped the applicant’s complaint. It confirmed the existence of the practice criticised by the applicant, but pointed out that it had been caused by the medical authorities’ delay in forwarding their expert reports and not in any breach by the judges of their attributions. 56. On 3 September 2015 the delegated judge requested the Buzău Institute of Forensic Medicine to conduct a further psychiatric expert assessment with a view to periodically reviewing the need to maintain the applicant’s psychiatric detention. The applicant filed a separate action seeking the replacement of the detention measure with a compulsory medical treatment measure. 57. On 23 September 2015 the Forensic Medical Board also examined the applicant. The applicant’s lawyer representing him in the present application before the Court sent a reasoned letter to the Board strongly advocating the replacement of the measure implemented in respect of his client. 58. On 1 October 2015 the Board drew up its forensic medical report recommending the replacement of the detention measure with a compulsory medical treatment measure. It emphasised that the persistence of the applicant’s delusional ideas concerning the setting up of a “new State” and his lack of social and family support, a factor conducive to social reintegration, supervision of his medical treatment and the management of the applicant’s daily needs relating to the purported “new State”, had justified maintaining the detention up until then. It noted that the applicant had not been aggressive to others or to himself during his detention. In that context, it welcomed the steps taken by Săpoca Hospital to place the applicant under guardianship, which it considered appropriate in the perspective of his release, given that the applicant had been rejected by his family (his brother, sister, former wife and daughters). Finally, the Board recommended that the social welfare services of the applicant’s district of residence should be informed that they had to take the necessary action with a view to releasing him. 59. On 22 October 2015 Buzău District Court, which was responsible for the review, ordered a fresh forensic medical report from the National Institute of Forensic Medicine (IFM) in Bucharest. 60. On 10 November 2015 the applicant underwent a medical examination at the IFM. 61. On 12 April 2016 the IFM submitted its expert report, which stated, in particular, that: – the applicant was suffering from chronic delusional disorder with no prospect of improvement, but rather with future aggravation of the illness due to aging; – the illness as manifested in the applicant did not point to any risk of a danger to society, but the lack of feasible plans for the future foreshadowed future conflicts, a risk of advanced social deterioration and the impossibility of monitoring the evolution of his illness; – the applicant lacked any social support from his family or other persons of trust. Under those conditions, the forensic medical board pointed out that the case presented a genuine psychiatric and deontological dilemma. Indeed, it considered that although, from the psychiatric point of view, the applicant could be released subject to compulsory medical treatment on the basis of Article 109 CP, that measure was inconceivable in the absence of social support. Consequently, it proposed provisionally maintaining the detention until the social welfare services could transfer the applicant to a specialised institution capable of providing him with appropriate living conditions and treatment. 62. By decision of 27 May 2016 the Buzău Court of First Instance, referring to the findings of the 12 April 2016 forensic medical rapport (see paragraph 61 above), ordered the maintenance of the detention measure. 63. The applicant appealed to Buzău District Court against that decision. He was represented by an officially appointed lawyer, who argued that the applicant’s wishes should be complied with. Questioned by the court, the applicant stated that he would live with his former wife and one of his daughters in their apartment. He added that he had a retirement pension. 64. By judgment of 29 August 2016 Buzău County Court upheld the 27 May 2016 decision. It held as follows: “Given the absence of improvement in the patient’s state of health and the fact that the members of his family cannot monitor his continued medical treatment, and having regard to the nature of the charges against him which had resulted in his medical detention, family members against whom [the applicant] has committed antisocial acts cannot be expected to cohabit with him. Nevertheless, the director of the establishment [where the applicant is detained] must inform the social welfare services responsible for transferring [the applicant] to a specialised institution capable of providing proper living conditions and treatment.” 65. On 6 September 2016 the Director of Săpoca Hospital invited the Directorate General of Social Assistance and Child Welfare (“DGASPC”) in Bucharest District 6 to adopt welfare measures in respect of the applicant pursuant to the instructions set out in the forensic medical report of 12 April 2016. 66. By letter of 29 September 2016 the DGASPC replied that the applicant’s former wife had informed it that she did not intend to be involved in any way in the process leading up to the applicant’s release. Furthermore, the DGASPC pointed out that it had contacted the social welfare services in the county of residence of the applicant’s sister with an eye to his possible placement with her. It also stated that the only centre in Bucharest District 6 which took in persons suffering from neuropsychiatric disorders could not admit the applicant owing to a lack of available places. Finally, it explained that it had also unsuccessfully attempted to contact other specialised and residential centres. 67. On 15 November 2016 the Director of Săpoca Hospital contacted the municipality of Unguriu, which had meanwhile been assigned the guardianship of the applicant .... The Director informed the municipal authorities the implementation of the preventive detention measure was temporary, and that they were required to act in the interests of the applicant, particularly with a view to his possible placement in a specialised institution after his release. 68. On 21 November 2016 Unguriu municipality replied that the guardianship order was not yet final and that it therefore could not act in respect of the applicant. 69. On 12 September 2016 the applicant underwent a further forensic medical examination. 70. The forensic medical report drawn up on 25 January 2017 recommended replacing the detention measure with a compulsory medical treatment order in view of the applicant’s “low level of dangerousness (while on treatment), compliance with the rules, absence of incidents, [and] the lengthy period of supervision”. The report mentioned in particular: – the existence of a single, strange and systematic delusionary theme concerning the creation of a “united Somali State”, which delusion did not however alter his compliance with hospital rules; – lack of conflict situations and of incidents pointing to potentially aggressive behaviour; – proper therapeutic cooperation during detention, despite his purely formal acquiescence in the reality of his illness and need for treatment; – absence of antisocial precedents – apart from the acts noted during his placement in detention – or consumption of psychoactive substances (drugs, alcohol); – negative effect of the extension of detention for social reasons on the development of the applicant’s illness and physiological state, and – the guardianship order. The report nevertheless emphasised the risk of decompensation of the illness, involving possible negative social consequences should the aftercare provided to the applicant by the body assigned guardianship prove inadequate. 71. On 21 February 2017 the applicant was heard by Buzău District Court. He was represented by an officially appointed lawyer, who advocated replacing the detention measure. 72. By final decision given on the same day, Buzău District Court ordered the replacement of the detention measure with a compulsory treatment order until the applicant had made a full recovery. It referred to the forensic medical report of 25 January 2017 (see paragraph 70 above) and to the “aim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law”. 73. On 7 March 2017 the applicant asked to remain in psychiatric hospital until his social situation had been settled. 74. On 8 March 2017 the lawyer representing the applicant before the Court sent a letter to Săpoca Hospital recommending, in the framework of enforcement of the decision of 21 February 2017, the applicant’s ultimate reintegration into society rather than his placement in a residential centre. He emphasised that releasing the applicant without adequate support would condemn him to vagrancy, destitution and the deterioration of his physical and mental health. Lastly, he requested the setting up of an interdisciplinary commission responsible for identifying the action to be taken on the applicant, on the model of the efforts expended in other countries to deinstitutionalise persons in medical detention. 75. On 9 March 2017 the applicant was transferred to another section of the same hospital for persons suffering from chronic illnesses. 76. On 14 March 2017 the Director of Săpoca Hospital invited la DGASPC to implement assistance measures in respect of the applicant pursuant to the final decision ordering the replacement of the detention measure. It also attempted, unsuccessfully, to contact two foundations in Bucharest for the same purpose. ... | 1 |
test | 001-152711 | ENG | CHE | CHAMBER | 2,015 | CASE OF HALDIMANN AND OTHERS v. SWITZERLAND | 1 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 6. The applicants were born in 1953, 1950, 1969 and 1969 and live in Uster, Zürich, Bäretswil and Nussbaumen respectively. 7 8. In 2003 the third applicant, an editor on the Kassensturz television programme, prepared a report on practices employed in selling life-insurance products. The report was prompted by the annual reports of the Private Insurance Ombudsman for the Canton of Zürich and by letters which the programme’s editors had received from viewers expressing their dissatisfaction with insurance brokers. Kassensturz was a long-running weekly consumer-protection programme on Swiss German television (SF DRS). 9. The third applicant agreed with the first applicant (the editor-in-chief of SF DRS) and the second applicant (the editor in charge of the programme) that she would record meetings between customers and brokers, using a hidden camera, to provide evidence of the brokers’ inadequate advice. It was decided that the meetings would be recorded in a private flat and that an insurance expert would then be asked to comment on them. 10. The fourth applicant, a journalist working for SF DRS, arranged a meeting with an insurance broker from the X company, which took place on 26 February 2003. She pretended to be a customer interested in taking out life insurance. The SF DRS crew installed two hidden cameras (Lipstickkameras) in the room in which the meeting was to take place, transmitting the recording of the conversation to a neighbouring room where the third applicant and the insurance expert had taken up position, together with a camera operator and a technician who had been assigned to film the expert’s views on the meeting. 11. Once the meeting had finished, the third applicant joined the broker and the fourth applicant in the room, introduced herself as an editor of Kassensturz and explained to the broker that the conversation had been filmed. The broker replied that he had suspected as much (“Das habe ich gedacht”). The third applicant told him that he had made some crucial errors during the meeting and asked him for his views, but he refused to comment. 12. The first and second applicants subsequently decided to broadcast part of the filmed meeting during a forthcoming edition of Kassensturz. They suggested that the X company be invited to comment on the conversation and the criticism of the broker’s methods, and assured the company that his face and voice would be disguised and would therefore not be recognisable. Before the programme was broadcast, the applicants proceeded to pixelate the broker’s face so that only his hair and skin colour and his clothes could still be made out. His voice was also distorted. 13. On 3 March 2003 the broker brought a civil action in the Zürich District Court, seeking an injunction preventing the programme from being broadcast. The action was dismissed in a decision of 24 March 2003. 14. On 25 March 2003, the day after the application for an injunction to protect the broker’s interests had been rejected, excerpts from the meeting of 26 February were broadcast, with the broker’s face and voice disguised as planned. 15. On 29 August 2006 the single judge for criminal cases at the Dielsdorf District Court (Canton of Zürich) found the first three applicants not guilty of intercepting and recording conversations of others (offences under Article 179 bis §§ 1 and 2 of the Criminal Code), and the fourth applicant not guilty of unauthorised recording of conversations (Article 179 ter § 1 of the Criminal Code). 16. Both the Principal Public Prosecutor (Oberstaatsanwalt) of the Canton of Zürich and the broker, as an injured party, appealed against the judgment of 29 August 2006. 17. In a judgment of 5 November 2007 the Court of Appeal (Obergericht) of the Canton of Zürich found the first three applicants guilty of recording conversations of others (Article 179 bis §§ 1 and 2 of the Criminal Code) and breaching confidentiality or privacy by means of a camera (Article 179 quater §§ 1 and 2 of the Criminal Code). It also found the fourth applicant guilty of unauthorised recording of conversations (Article 179 ter § 1 of the Criminal Code) and breaching confidentiality or privacy by means of a camera (Article 179 quater §§ 1 and 2 of the Criminal Code). The first three applicants were given suspended penalties of fifteen day-fines of 350 Swiss francs (CHF), CHF 200 and CHF 100 respectively, while the fourth applicant received a penalty of five day-fines of CHF 30. 18. The applicants appealed jointly to the Federal Court against their convictions, relying in particular on the right to freedom of expression under Article 10 of the Convention. They argued that their recourse to the impugned technique had been necessary to achieve the aim pursued. 19. In a judgment of 7 October 2008, which was served on the applicants’ representative on 15 October 2008, the Federal Court allowed the appeal in so far as it concerned the charge of breaching confidentiality or privacy by means of a camera within the meaning of Article 179 quater of the Criminal Code. It held that there had been a violation of the principle that the trial must relate to the charges brought and a violation of the rights of the defence, and remitted the case to the lower court. 20. The Federal Court dismissed the remainder of the appeal. It held that the applicants had committed acts falling under Article 179 bis §§ 1 and 2 and Article 179 ter § 1 of the Criminal Code and dismissed their defence of justification. It acknowledged that there was a significant public interest in being informed about practices employed in the insurance field, and that this interest was liable to be weightier than the individual interests at stake. However, it considered that the applicants could have achieved their aims by other means entailing less interference with the broker’s private interests, for example commenting on the Ombudsman’s annual reports or interviewing the Ombudsman’s staff or customers dissatisfied with their broker’s services. It also found that instead of filming the meeting with a hidden camera, the journalist could have drawn up a record of the conversation, although it acknowledged that the probative value of that method would obviously have been less striking. Lastly, it held that the filming of a single case was insufficient to provide reliable evidence of the scale of the alleged problems, since examples of malpractice in this field were widespread and common knowledge. The broadcasting of an isolated example would therefore not enable the public to draw general conclusions about the quality of advice given by insurance companies. 21. On 24 February 2009 the Court of Appeal of the Canton of Zürich found the applicants guilty of breaching confidentiality or privacy by means of a camera, an offence under Article 179 quater of the Criminal Code. It therefore slightly reduced the penalties previously imposed on them: the first three applicants were given twelve day-fines of CHF 350 (approximately 290 euros (EUR)), CHF 200 (approximately EUR 160) and CHF 100 (approximately EUR 80) respectively, instead of fifteen day-fines, and the fourth applicant was given four day-fines of CHF 30 instead of five day-fines. The penalties were all suspended for a probationary period of two years. The applicants did not appeal against that judgment. | 1 |
test | 001-180840 | ENG | RUS | CHAMBER | 2,018 | CASE OF IVASHCHENKO v. RUSSIA | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 5. The applicant was born in 1983 and lives in Krasnodar. 6. The applicant had a press card issued to him as a photographer, stating that he was a “correspondent at Agency.Photographer.ru”. According to the applicant’s submissions, he also prepared various texts for publication in print and Internet media outlets on an occasional basis. 7. In August 2009 the applicant and Ms D. travelled to Abkhazia to prepare a report with photographs on, as he described it, “the life of this unrecognised republic”. 8. On 27 August 2009 they returned to Russia, arriving on foot at the Adler customs checkpoint. The applicant presented his Russian passport, press card and a customs declaration, stating that he had electronic information devices (a laptop and flash memory cards) in his luggage. The laptop was his own property, however, he also used it for professional purposes. 9. The applicant and D. were examined by Officer K. In his report to his superior, drawn up at 10.40 a.m. on 27 August 2009, he stated that in view of the applicant’s answers to questions and because of his behaviour, neither of which have been specified to the Court, there was a need to verify the information contained in the applicant’s customs declaration by way of an “inspection procedure” (see paragraph 31 below) in respect of the items in his bag and backpack and to “apply the measure for minimising risk as per profile no. 55/1000000/11062008/00228 ...”. 10. The Government have submitted to the Court a written statement from K., which reads as follows: “Following the customs control measure of an interview and given [D.’s and the applicant’s] behaviour and the nature of their professional activities, a supposition/assumption (предположение) arose that they might have banned printed and/or audio- and video-material with extremist content in their bags ... Since [the applicant] noted in his declaration that he had electronic storage devices, I made a written report to the acting chief officer of the customs checkpoint concerning the need for carrying out an inspection of [the applicant’s] bags in the framework of the risk management system and for involving Officer B., an IT specialist. The inspection was approved by the chief officer by way of his handwritten approval on my report ... The chief officer issued an order for an inspection and authorised B. and myself to use the sampling procedure ... The above-mentioned supposition/assumption was based on the presence of a folder labelled “Extremist” in the laptop ... Data from it was copied on the same day [on the spot] ... to DVD RW disks, which were then sealed in a plastic bag ... [The applicant], B. and two attesting witnesses were present ... The sampling report contained a detailed description of the data that was copied, including the names of the folders that had been copied, their number and the number of files in each folder ... The copying was carried out by Officer B. I did not open or copy any electronic folders or files ... I did not read any ‘correspondence’ (personal correspondence or other text material) ... An order to carry out a forensic examination was issued on 8 September 2009 ... because on 27 August 2009 we had no information about the relevant expert organisations for that type of forensic examination ...” 11. The Government have also submitted a written statement from Officer B., which reads as follows: “In accordance with the order for an inspection [no. ...], which required sampling and which also indicated ‘other’, I copied data from [the applicant’s] laptop to six DVD RW disks ... because we had no other type of disks or electronic storage devices ... Since the laptop’s hard drive was some 160 Gb and at the time we had no means for fast copying, I decided only to copy folders with strange names. I did not read any ‘correspondence’ (personal correspondence or other text material) from the laptop.” 12. According to the Government, after finding in the directory of the laptop an electronic folder entitled “Extremism (for RR)”, which contained a number of photographs, the customs officer decided to copy it and some other folders from the laptop for further examination by an expert, who could determine whether they contained any information of an extremist nature. 13. The folder contained seven subfolders and 180 files. The applicant made a note in the record, stating that the material had been copied onto rewritable DVD disks (thus technically allowing the data to be modified, including by way of adding data). According to the applicant, the folder had some photographs and a PDF copy of an article entitled “How to incite hatred?” on anti-extremism legislation. The article, written by Ms V., was published in the Russian Reporter magazine in June 2009 and was accompanied by photographs taken by the applicant. The author of the article discussed the controversies and difficulties relating to the interpretation and application of Russian anti-extremism legislation, with reference to four criminal cases under Article 282 of the Criminal Code. According to the applicant, the material that was copied included documents and text concerning two ethnic groups (the Yazidis and the Meskhetian Turks), who were allegedly under pressure from the Krasnodar regional administration. For instance, a folder named “Isolation” contained texts describing the social problems facing thirty-seven Yazidi families (with references to their personal details), who had been discriminated against by the regional administration. 14. It can be seen from the record of the sampling that thirty-four folders (containing some 480 subfolders with over 16,300 electronic files) were copied. The folders had the following names (mostly in Russian): In motion, Miscellaneous, Desktop, Foto_projects, On the road, Isolation, Drawings, 1 May, 9 May, 14 February, Law, Extremism (for RR). 15. It appears that the data from the laptop was first copied to a mobile or external hard drive and then recopied to six DVDs. According to the Government, the information was then deleted from the external hard drive. The original data in the laptop was not deleted and remained intact. 16. According to the applicant, his laptop remained with Officer B. for several hours. Allegedly, the officer read through the applicant’s correspondence in the ICQ messaging program and copied some 26 gigabytes of data, including the applicant’s personal correspondence, personal photographs and FTP-type passwords. 17. The applicant submitted the following written statement by Ms D. to the Court: “At 10 a.m. we presented ourselves at the border control and presented our passports ... We were then taken to the customs control area ... There the customs officers asked [the applicant] to hand over his press card; so they were aware that he had one ... Officer K. interviewed us about the purpose of our visit to Abkhazia and our professional and civic activities ... I heard an FSB border officer tell the customs officers about the need for a ‘special check’ of our electronic storage devices ... Seeing a laptop in [the applicant’s] bag, the customs officers expressed their intention to copy all the available information ... I was interviewed (again) about my civic activities, my political views and about [the applicant’s] professional activities ... the type of work done and the publications ...” 18. On 9 September 2009 the applicant was informed that a report had been commissioned from a criminal forensics expert to determine whether the data copied from his laptop had any prohibited “extremist” content. 19. In November 2009 the expert organisation returned the DVDs to the customs office, stating that it was not possible to carry out the examination, although it gave no reasons. In December 2009 a report was sought from another expert organisation. Apparently, it concluded that the data contained no extremist material. According to the applicant, the DVDs with his data were handed over to him in November 2011. 20. In the meantime, the applicant brought judicial review proceedings under Chapter 25 of the Code of Civil Procedure (“CCP”), challenging the adverse acts and actions of the customs officials. 21. By a judgment of 25 January 2010 the Prikubanskiy District Court of Krasnodar dismissed his claims. The court held as follows: “Laptops, storage devices, photo- and video-cameras should be considered as ‘goods’ within the meaning of Article 11 of the Customs Code. All goods should be presented for checking by customs, as required under Article 14 of the Code ... The customs authorities are authorised to take samples of goods for examination ... and to use technical devices to speed up the checks ... The data from the applicant’s laptop was copied for the purposes of examination in compliance with Presidential Decree no. 310 on combating fascism and political extremism ... In the circumstances, the fact that the samples taken for examination constituted all the relevant data was justified ...” 22. The applicant appealed, arguing, inter alia, that the first-instance court’s assessment had not taken into account the requirements relating to Articles 8 and 10 of the European Convention, in particular, the requirement that any interference by a public authority had to be shown to be “necessary in a democratic society” and proportionate to the legitimate aims pursued. He mentioned the Court’s case-law relating to the seizure of printed material and electronic devices, an action which adversely affects the maintenance of professional secrecy. The applicant also argued as follows: (a) Compliance with Decree no. 310 was not possible without actually reading someone’s correspondence and other personal information, thereby interfering with the constitutional right to the protection of the secrecy of correspondence and other communications. Article 55 of the Constitution only permitted restrictions on people’s rights on the basis of a federal statute; the decree in question was secondary legislation (подзаконный акт) and could not lawfully introduce additional limitations on constitutional rights; (b) The trial court had mentioned that laptops, flash memory cards and the like were “goods” for the purposes of customs legislation. However, the sampling had been carried out in respect of the information they contained rather than the carriers or containers of the information (“the goods”). Access to that information, however, was only allowed on the basis of a court order, as stated in Article 23 of the Constitution; (c) In his “written explanations” to the appeal court, the applicant insisted that in Chapter 25 proceedings a public authority had the burden of proving that its acts were lawful and justified. However, the first-instance court had not required the customs authority to cite a specific legal provision authorising its officials to examine electronic data. According to the applicant, the customs authority representative had refused at the hearing to explain the specific content of the risk profile concerning the applicant, referring to the fact that the information in question was classified and was for internal use only. However, a 2004 Instruction by the Federal Customs Authority only authorised a customs inspection where the risk profile in question provided for that type of measure (see also paragraph 37 below). 23. On 22 April 2010 the Krasnodar Regional Court upheld the judgment, essentially reproducing the lower court’s reasoning as follows: “Under Articles 403 and 408 of the Customs Code, customs authorities fulfill the tasks and functions assigned to them by federal and other legislation ... and have the authority to apply measures prescribed by the Customs Code for ensuring compliance with customs legislation ... Article 11 of the Customs Code defines goods (for the purposes of customs legislation) as movable property which is being transferred across the customs border. This includes laptops, memory flash cards, photo-cameras, video-cameras, printed material and the like. Article 14 of the Code provides that all such goods should be subject to customs clearance and customs control. Article 123 of the Code provides that goods should be declared when being transferred across the customs border. Article 124 of the Code provides that the declaration is made by way of presenting a written declaration or otherwise ... The transfer of goods by individuals for personal use is prescribed by Chapter 23 of the Customs Code, and Government decree no. 715 of 27 November 2003 and no. 718 of 29 November 2003. Article 13 of the Code provides that goods which are prohibited from being transferred to Russia must be removed from Russia. By a letter of 16 July 2008 the Federal Customs Authority listed the goods which are banned from Russian territory ... By a letter of 3 May 2006 the Authority listed the goods that must be declared to customs. The procedure for and the types of customs checks are described in Chapters 34-37 of the Code. Article 358 of the Code provides that customs checks are based on the principle of selectiveness and, as a rule, should be limited to such forms of control as are sufficient for ensuring compliance with customs legislation ... When selecting the form of control, the risk management approach is applied, which is based on the effective use of resources for preventing violations of the legislation ... Risk is defined as a probability of non-compliance with customs legislation. When carrying out a customs check, the customs authority is allowed to take samples of goods which are needed for further assessment. The relevant procedure is defined in Article 383 of the Code and Customs Authority order no. 1519 of 23 December 2003. When carrying out a customs check, the authority is allowed to use technical means to limit the time of such checks; the list and procedures for their use are defined in Article 388 of the Code and in Customs Authority order no. 1220 of 29 October 2003 ... Order no. 677 of 10 November 1995 by the Customs Authority (‘On preventing the transfer of prohibited printed, audio- and video-material across the customs border’) does not contradict the current customs legislation and has not been revoked because the current Customs Code contains Article 13 concerning bans and limitations on the transfer of goods across the customs border ... In view of the above, the court agrees with the first-instance court that the customs inspection was authorised and carried out within customs control procedures and that the data was copied in line with Russian Presidential Decree no. 310 of 23 March 1995 ... Article 2 of the decree clearly requires the customs authority to ‘arrest and bring to liability persons who disseminate printed, cinematographic, audio-, photo- or video-materials which are aimed at being propaganda in favour of fascism, at inciting social, racial, ethnic or religious enmity; and to take measures for seizing printed material of that kind’ ... Article 383 of the Code concerning the minimal amount of samples was complied with because the information taken for sampling was not homogenous. Thus when the samples were taken, it was necessary to take the full amount of information from the device ... In addition, it is noted that under Article 10 of the Customs Code, information received by customs officials may be used exclusively for the purposes of customs legislation ... Customs officials are not authorised to disclose that information or transfer it to third persons, except as set down in the Code or other legislation ...” 24. The applicant does not appear to have been prosecuted subsequently in criminal, administrative or other proceedings in connection with the data obtained from his laptop by the customs authorities. | 1 |
test | 001-182862 | ENG | RUS | COMMITTEE | 2,018 | CASE OF TARKHANOV v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) | Alena Poláčková;Dmitry Dedov | 4. The applicant was born in 1980 in Abakan, the Khakassiya Republic. 5. The applicant stood accused of theft and murder. On 22 November 2004 the Sayanogorsk Town Court in Khakassiya fixed, in the hearing held without the applicant’s attendance, the opening date for the trial and ordered an extension of his pre-trial detention. On 2 December 2004 the applicant was convicted and given a custodial sentence. 6. On 22 March 2005 the Constitutional Court held, in unrelated proceedings, that the provisions of the Code of Criminal Procedure ought to be interpreted as guaranteeing the right of the defendant to take part in the hearing where the matter of detention was decided, to make submissions to the court and to produce evidence (Judgment no. 4-P, point 4 of the operative part). 7. On 8 August 2013 the Presidium of the Supreme Court of the Khakassiya Republic quashed the Town Court’s decision of 22 November 2004 in the part relating to the detention matter. Referring to the case-law of the Constitutional Court, it found that the District Court had unlawfully extended the applicant’s detention without giving him an opportunity to take part in the hearing or to make submissions to the court. 8. The applicant sued the Ministry of Finance, seeking compensation for the unlawful detention from 22 November to 2 December 2004. By judgment of 16 September 2013, as upheld on appeal on 27 November 2013, the Abakan Town Court rejected his claim, holding that he was not eligible for compensation in respect of pre-trial detention because he had been found guilty and given a custodial sentence. | 1 |
test | 001-185320 | ENG | DEU | CHAMBER | 2,018 | CASE OF FRÖHLICH v. GERMANY | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 5. The applicant was born in 1966 and lives in Köthel. 6. In 2004 the applicant began a relationship with X, a married woman who continued to live with her husband, with whom she had six children. In early 2006, X became pregnant and disclosed this to the applicant. In October 2006, she gave birth to a girl. Shortly after, the relationship with the applicant ended. 7. X and her husband, the girl’s legal father, refused the applicant’s subsequent initiatives to have contact with the child. They disputed that the applicant was the biological father but refused to consent to paternity testing. 8. The applicant initiated various proceedings to establish his legal paternity, to have biological paternity testing conducted and to obtain joint custody. His requests were to no avail. 9. On 21 December 2010 the applicant applied to Obernburg Family Court to obtain regular contact with the child, referring to the Court’s judgment in the case of Anayo v. Germany (no. 20578/07, 21 December 2010) delivered on the same day. He claimed to be the child’s biological father and offered to prove this claim by means of an expert’s report. In addition, he made a sworn declaration that he had had sexual intercourse with X around the time of conception. 10. On 9 May 2011 the Family Court dismissed the applicant’s request. It held that the applicant’s paternity had not been established and that, consequently, he could not be granted contact. 11. On 14 June 2011 the applicant appealed. On 16 November 2011 he supplemented his appeal, mainly relying on the Court’s judgment in the case Schneider v. Germany (no. 17080/07, 15 September 2011) and requested contact with the child at least once a month, initially under supervision. 12. On 1 December 2011, the Court of Appeal orally heard the applicant and the child’s legal father. The latter declared that he knew about the relationship between his wife and the applicant and also assumed that there had been sexual contact. In October 2005 the mother had told him and the children that her relationship with the applicant was terminated although he could not rule out, and indeed considered it likely, that she had continued the relationship without his knowledge. He had learned of his wife’s pregnancy in February 2006 and concluded that he was the father. In December 2006 the applicant had told him on the telephone that he was the child’s father. At that moment, the mother had felt relieved that the time of secrets was over. This moment had been a breakthrough for them as a couple and their relationship had improved subsequently. The child had been desired by both. Even assuming that the applicant were the child’s father, he would not agree to any contact because the applicant had caused them much suffering and had to bear the consequences of his behaviour. The proceedings the applicant had instituted were a burden for the couple but did not have a negative impact on the relationship with his wife, but had rather consolidated it. Everyone in the family but the child knew that the applicant believed that he was the child’s father. 13. On 9 February 2012 the Court of Appeal orally heard the child’s mother. At the end of the hearing it informed the parties that it considered contact with the applicant not to be in the child’s best interest for the time being and suggested that the applicant withdraw his appeal. 14. On 21 June 2012 the child’s appointed guardian ad litem (Verfahrenspfleger), a psychologist, furnished a detailed written statement concluding that contact with the applicant would be detrimental to the child’s wellbeing at this age. 15. On 17 August 2012 the applicant requested the Court of Appeal to mandate an expert opinion on the question of whether contact would be detrimental to the child or would at least serve her best interest; to hold an oral hearing where the guardian ad litem should explain her written statement; to conduct a paternity test and to hear the child. 16. On 28 September 2012, the Court of Appeal informed the parties that it considered it necessary to hear the child. The child’s guardian ad litem opposed this. She submitted, inter alia, that the child had no knowledge of the applicant’s claims, that the latter could not prove his fatherhood in the absence of a legal basis and that the child’s legal parents had not submitted any proof of their allegations that the mother’s husband was also the child’s biological father. 17. On 29 October 2012 the Court of Appeal heard the sixyearold child in the presence of her guardian ad litem only. According to the minutes, the child was aware - without knowing the real reasons - that her parents were in dispute with the applicant, who wanted to visit her or wanted her to visit him, but that neither her parents nor herself agreed to this. 18. On 19 November 2012 the guardian ad litem submitted that the child’s hearing confirmed her written statement of June 2012. 19. On 21 November 2012 the applicant commented on the child’s hearing, submitted a private expert opinion and requested the Court of Appeal to mandate an expert opinion regarding contact rights and to appoint a new guardian ad litem. He further asked the Court of Appeal to inform the child about his application during a new hearing. He added that in the event that his appeal were to be denied, he should receive a written report on the child’s development and two recent photographs every six months. 20. On 13 December 2012 the Court of Appeal dismissed the applicant’s requests. It observed, at the outset, that the applicant could not rely on Article 1684 § 1 of the Civil Code as he was not the child’s legal father. He could not rely on Article 1685 § 2 of the Civil Code either, because he had never borne any actual responsibility for the child. The Court of Appeal then addressed the question of whether Article 1685 § 2 of the Civil Code could be interpreted, in the light of the Court’s judgments Anayo and Schneider (cited above), as assuming that a father who was able to prove that he had seriously tried to bear actual responsibility but failed to do so because of the mother’s or legal parent’s resistance, could be considered as having borne actual responsibility within the meaning of this Article. 21. This question could, however, be left open because contact had in any event to serve the child’s best interest. In this respect the Court of Appeal held that it was already contrary to the child’s best interest to address the preliminary question of whether the applicant was the child’s biological father. The child was living in a well-organised and emotionally stable family unit consisting of a father, a mother and other children. The Court of Appeal pointed out that it was convinced that this family union would be destroyed if the applicant’s paternity were established and contact rights ordered. The hearing of the child and the legal parents had shown that in the child’s perception of the world, there was only one father, the mother’s husband. There were no indications that the latter did not assume his role as a father towards the child or assumed it differently than towards his other children. The child was well-integrated in the family, where she felt protected and secure. This assessment was also consistent with the conclusions of the child’s curator ad litem. 22. The Court of Appeal feared that clarifying the question of paternity bore the risk that the family unit would break up, which would have considerable negative consequences on the child because she would lose her essential attachment figures. As it had indicated after the hearing, it held it to be more likely that the applicant was the child’s biological father. This question could, however, ultimately only be determined by a paternity test, to which the child’s legal parents were opposed. The mother affirmed that her husband was the biological father of her daughter and both stood firm against the applicant. According to the Court of Appeal it resulted from the hearing that the legal father trusted, in principle, his wife’s assertions but at the same time had doubts as to his paternity, although he had not explicitly expressed them. In spite of these doubts, and the long-lasting court proceedings, he did not put in question his wife’s statements. The Court of Appeal received the impression that the spouses had barricaded themselves against the applicant as if they were in a corral, as had shown the legal father’s declaration that the legal proceedings did not have a negative impact on the relationship with his wife but had rather consolidated it. The Court of Appeal concluded that the legal father could live with this uncertainty, and that his attitude had no consequences for the child. If, however, the applicant’s biological paternity were to be established, the legal father would realise that his long-standing trust in his wife was not justified. It was not possible to predict the legal father’s reaction, but the manifest risk that the spouses’ marriage would break up could not be dismissed in view of the couple’s past difficulties. The couple’s separation would amount to the breaking-up of the child’s family unit and the loss of her relationships, which would endanger her well-being. 23. The Court of Appeal pointed out that it was aware that, in view of the importance of the child’s well-being, it could be a long time before the preliminary question of paternity could be clarified and years before contact rights could be granted. This might evolve once the child started to ask questions, but for now it was not in her best interest to be confronted with the paternity issue. It was therefore not advisable to tell her about the applicant’s allegations or to substitute the child’s guardian ad litem. 24. The Court of Appeal went on to say that, even assuming that the applicant was the child’s biological father, contact with the applicant was not in the child’s best interest. Due to the highly emotional conflicts between the legal parents and the applicant, and the fact that the applicant had not ruled out that he might tell the child that he was her biological father if he saw her, contact would jeopardise the child’s well-being. Therefore it was not advisable to order an expert opinion regarding the question of whether and how the child would deal with two fathers or whether it was in general advisable to grant children contact with their biological fathers at an early stage. These issues had to be assessed in the light of the extremely tense relations between the applicant and the child’s legal parents, and in view of the predictable consequences for the child if contact were granted. The Court of Appeal added that it could decide on these questions on its own after having orally heard the persons involved, and based on the written statements of the guardian ad litem, an experienced psychologist well-known from other proceedings. 25. As regards the applicant’s request for information the Court of Appeal held as follows: “The applicant’s request for information, claimed in the alternative in his lawyer’s submissions of 21 November 2012, does not exist. Such claim cannot be based on Article 1686, 1st sentence, of the Civil Code because the applicant is not, as required by this provision, the child’s legal father. Whether the provision can be interpreted in the light of the above mentioned decisions of the European Court of Human Rights, as assuming that a biological father can also claim a right for information, can be left open: that would require addressing the preliminary issue of whether the applicant was the child’s biological father. It has already been shown that clarifying this question by ordering a paternity test would be contrary to the child’s well-being.” 26. On 11 February 2013, the Court of Appeal dismissed the applicant’s objection alleging a violation of the right to be heard. 27. Previously, on 28 January 2013, the applicant had lodged a constitutional complaint with the Federal Constitutional Court (no. 1 BvR 844/13). 28. On 18 July 2013 the Federal Constitutional Court informed the applicant that on 13 July 2013, the Law for the strengthening of the rights of biological but not legal fathers had entered into force which, pursuant to Article 1686a of the Civil Code, provided a new possibility for biological fathers to be granted contact and information rights even if they had no social and family relationship with the child (see paragraph 32 below). It added that in court proceedings concerning the enforcement of such rights, the determination of the preliminary question of paternity could be necessary, pursuant to Article 167a § 2 of the Family Matters Act (see paragraph 33 below). It enquired of the applicant whether, under these circumstances, he would withdraw his constitutional complaint. 29. On 13 August 2013 the applicant replied that he would maintain his complaint because, even under the new law, he would not have obtained a more favourable decision. He pointed out that the Court of Appeal had rejected his request for contact rights, even assuming that he was the child’s biological father, since contact did not serve the child’s well-being. The Court of Appeal had thus already decided in the light of the new Article 1686a of the Civil Code. The applicant added that the same reasoning applied to his request for information. Given that, in its view, the determination of paternity would endanger the family unit, the Court of Appeal would refrain from ordering a measure of examination because the legal parents could not reasonably be expected to undergo any examination, under Section 167a § 2 of the Family Matters Act. 30. On 21 September 2014 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons. | 0 |
test | 001-182595 | ENG | HUN | COMMITTEE | 2,018 | CASE OF TONELLO v. HUNGARY | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 6. The applicant was born in 1971 and lives in Vigonza (Padua). 7. The applicant met his former partner, K.S., a Hungarian national, in 2008. They began living together in Abano Terme (Italy) and had a daughter, who was born on 15 September 2011. 8. According to the applicant, after the baby was born K.S. began engaging in obsessive behaviour and their relationship deteriorated. 9. In November 2011 K.S. spent a week in Hungary with their daughter. In December of the same year she again travelled to Hungary with the baby. It was agreed that the applicant would fetch them on 30 December and drive them back to Italy. While on his way to Hungary, the applicant was informed by K.S. that she did not intend to return to Italy. 10. The applicant first returned to Italy (without having reached Hungary); he then set off again for Hungary, where (after arriving) K.S. initially denied him access to his daughter. After several days, K.S. allowed the applicant to see the baby and informed him that he could see her again, provided that he agreed to let his daughter stay in Hungary with K.S. and pay 500 euros (EUR) per month in child support. The applicant rejected this proposal and on 9 January 2012 returned to Italy. 11. On 21 February 2012 the applicant lodged an application with the Venice Minors Court requesting that the court strip K.S. of parental authority over their daughter, order the return of the child to Italy and grant him exclusive custody. 12. On an unspecified date the applicant lodged a request with the Pest Central District Court for the child’s return, pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter, “the Hague Convention”). 13. On 13 September 2012 the Pest Central District Court found that K.S. was keeping the child in Hungary illegally and ordered that she return the child to the applicant’s residence in Italy by 21 September 2012. Alternatively, the child should be handed to the applicant or his proxy in Budapest no later than 24 September 2012. 14. Following an appeal by K.S., on 8 November 2012 the Budapest High Court upheld the decision of the Pest Central District Court and ordered that the child be returned to Italy by 30 November 2012 or to the applicant or his proxy in Budapest by 4 December 2012. 15. Following a further appeal by K.S., that decision was upheld by the Supreme Court on 22 January 2013; nevertheless, the child was not returned to the applicant. 16. An enforcement order based on the second-instance decision of 8 November 2012 was issued on 21 January 2013 against K.S. The bailiff of the Mezőtúr District Court instructed the mother to comply with the final decision and return the child to the applicant within fifteen days and ordered her to pay a fine of 152,400 Hungarian forints (HUF – approximately EUR 490). 17. Criminal proceedings against K.S. were initiated in 2013 by the Padua public prosecutor and a European arrest warrant was issued against her. 18. On 14 January 2013 the Venice Minors Court found that it had jurisdiction to examine the applicant’s case pursuant to articles 8, 10, 11 and 42 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 (see paragraph 49 below), allowed the applicant’s application (see paragraph 11 above), stripped K.S. of her parental authority and, like its Hungarian counterpart, ordered the immediate return of the child to Italy. 19. On 18 January 2013 the preliminary-investigations judge (giudice per le indagini preliminari) issued an arrest warrant against K.S. for the offence of international child abduction. 20. On 23 January 2013 a European arrest warrant was issued against K.S. by the Padua Court. 21. On 15 February 2013 the court bailiff sent a copy of the return order to the guardianship office of Mezőtúr District in order to enable the said authority to serve it on K.S. and to inform her of the consequences of failing to comply with the order. 22. On 28 February 2013 two members of the Mezőtúr guardianship office’s staff attempted to serve the order on K.S.; they were unsuccessful as they were unable to enter her home. As K.S.’s post box was in a locked part of the building, they were not able to leave behind any notification either. They went to the registered address of K.S.’s mother but they could not find anybody there either. They left behind a notification in the post box there informing K.S. of their attempt to enter her home and of the date of the next visit by guardianship office staff. 23. On 4 March 2013 guardianship office staff again visited the registered permanent address of K.S. and the registered residential address of her mother but again failed to serve the enforcement order on her. 24. In March 2013 the Department of International Private Law of the Hungarian Ministry of Justice conducted mediation proceedings through the legal representatives of K.S. and the applicant in order to try to reach an amicable agreement. 25. On 6 March 2013 the Padua public prosecutor lodged by means of a letter rogatory an application with the Budapest Prosecutor’s Office for judicial assistance. The application was dismissed on 29 October 2013 on the grounds that the judgment of the Venice Minors Court (see paragraph 18 above) was not yet enforceable (see paragraph 31 below) and the requirement of dual criminality was not satisfied. 26. On 20 March 2013 the Mezőtúr District Court allowed an application lodged by K.S. for the return order issued by the Budapest High Court (see paragraph 14 above) to be suspended, but this decision was subsequently quashed by the Szolnok High Court on 19 June 2013. On 16 October 2013 the Mezőtúr District Court refused another similar application lodged by K.S. Following an appeal by K.S., the latter decision was upheld by Szolnok High Court on 4 December 2013. 27. On 5 September 2013 the deputy court bailiff, accompanied by police officers and guardianship office staff, visited K.S.’s registered address and the residential address of her mother, but no one answered the door. 28. On 20 September 2013 the bailiff attempted to serve the enforcement order at the same addresses, but with no success, as K.S. and her daughter had absconded. The guardianship office informed the court bailiff that they had no useful information concerning the whereabouts of K.S. and her daughter. 29. On an unspecified date, K.S. lodged an application for the enforcement proceedings to be terminated; that application was refused by the Pest Central District Court on 4 October 2013. That judgment was upheld by the Budapest High Court on 10 December 2013. 30. On 21 January 2014 an international search warrant was issued by the Mezőtúr police. 31. On 17 March 2014 the Szolnok District Court declared the judgment of the Venice Minors Court (see paragraph 18 above) enforceable. On 30 June 2014, following an appeal by K.S, that decision was quashed by the Szolnok High Court. 32. The Mezőtúr district prosecutor’s office ordered an investigation in respect of K.S. concerning the unauthorised custody of a minor and the endangering of a minor on 17 February and 18 March 2014 respectively. 33. On 5 May 2014 K.S. was summoned as a suspect, but she failed to appear. 34. On 19 May 2014 an arrest warrant was issued against K.S. 35. On 5 November 2014 the bailiff unsuccessfully tried to serve the enforcement order on K.S. at her registered residential address. Residents of the area were not able to provide any useful information to the bailiff. 36. Following an appeal by the applicant against the Szolnok judgment of 30 June 2014 (see paragraph 31 above), on 25 November 2014 the Kúria declared the judgment of the Venice Minors Court (see paragraph 18 above) enforceable. 37. On 23 December 2014 the Padua public prosecutor lodged by means of a letter rogatory a further application for judicial assistance and requested that the Padua police be authorised to assist the local judicial police with the execution of the arrest warrant. On 18 March 2015 the Budapest Prosecutor’s Office dismissed this application on the grounds that the conduct described in the criminal complaint could be classified as kidnapping under the Italian Criminal Code, but not under Article 190 of the Hungarian Criminal Code. 38. On 10 and 12 March 2015 staff of the Mezőtúr guardianship office visited K.S.’s registered address and her mother’s home, but their attempts to serve the enforcement order failed. 39. The Government pointed out that several searches and other procedural actions had failed to generate any results. In order to identify K.S.’s place of residence, they had checked the database of the National Health Insurance Fund and requested data from all those of the country’s financial institutions that provided payment services. Moreover they had requested data from the mobile phone companies, the Hungarian State Treasury, the Hungarian tax and customs authorities, and regional and local tax and customs agencies; they had also run checks in the databases of companies providing card services to regular customers in the territory of Hungary. 40. On 13 October 2016 the Mezőtúr District Court, during the criminal prosecution against K.S. for child abduction, heard M.A., the child’s paediatrician. M.A. said that she had visited the child several times over the years. In particular, on 1 September 2016 she had issued a medical certificate which had been required for the child’s enrolment in a kindergarten. 41. By a letter dated 13 December 2016 the Italian Central Authority informed the applicant that the Hungarian authorities were still not able to execute the return order because they had still not identified K.S.’s place of residence. 42. At the hearing of 15 December 2016 the Mezőtúr District Court heard four of K.S.’s relatives, who all stated that K.S. was living in hiding. 43. On 20 April 2017 K.S. was acquitted by the Mezőtúr District Court. The text of this judgment was not produced before the Court. 44. The Mezőtúr Attorney-General lodged an appeal against this judgment with the Szolnok High Court. 45. On 10 May 2017 the Padua public prosecutor lodged by means of a letter rogatory a further application for judicial assistance. This application was dismissed. 46. According to the latest information received by the Court, in February 2018 the criminal proceedings against K.S. were still pending Szolnok High Court and the return order of the applicant’s daughter had not yet been enforced. | 1 |
test | 001-145694 | ENG | ROU | ADMISSIBILITY | 2,014 | OANCEA v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicants, Mr Ion Oancea and Ms Doina-Ligia Oancea, are Romanian nationals, who were born in 1952 and 1955 respectively and live in Ciulniţa, Argeş County. They were represented before the Court by Mr G.A. Vasile, a lawyer practising in Piteşti. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. M.C., the applicants’ thirty-year-old son, was HIV-positive and was registered as such by Matei Balş Hospital, where he received monthly treatment. 5. On 14 August 2007 M.C. was arrested together with his two brothers and his brother-in-law and placed in Argeş Police detention facilities. He was in good shape at that time, but the tests run after his arrest showed that he had had a slow reaction to his retroviral treatment (aderență scazută la tratament). He spent most of his pre-trial detention in Colibaşi Prison Hospital. 6. During his pre-trial detention, M.C. received treatment for his illness, except for three periods of respectively four, two and one, days when the medicine did not reach the prison hospitals on time. As his health deteriorated and he started complaining of severe back pain, he was taken for a consultation in a civilian hospital. The doctor recommended treatment with ointments and, if the pain did not subside, surgery. According to the statements made by his cellmates, including his brothers, the treatment was delayed by a few days and had to be administered by the inmates, who took turns in applying the ointments and hot water to the painful areas. As the treatment proved to be ineffective, M.C. requested an operation, which took place on 21 October 2008 in Bagdazar Arsenie Civilian Hospital. 7. M.C.’s official prison record submitted by the Government does not contain any complaint by M.C. to the post-sentencing judge about the medical treatment. 8. On 22 October 2008 M.C. was released from prison, based on a decision rendered by the Piteşti Court of Appeal. On 11 November 2008 he was admitted to a civilian hospital with similar symptoms as before (severe back pain and generally deteriorating health). He remained in the hospital until 22 December when he was declared incurable and released at the family’s request. He died on 23 December 2008. 9. On 3 August 2009 the applicants lodged a criminal complaint with the Prosecutor’s Office attached to the High Court of Cassation and Justice, against the administration and the medical personnel of Colibaşi Prison, accusing them of having intentionally postponed their son’s surgical operation, which led to his death. They argued that the operation was delayed intentionally by the prison authorities, who received significant financial benefits as additional bonuses to their salaries while dealing with an HIV-positive inmate: a 75 % salary increase for prison administrators and a 100 % salary increase for medical personnel. 10. From the records submitted by the Government, it appears that, at the applicants’ request, the prosecutor’s office informed them on 30 September 2009 that an investigation into the matter was pending. 11. According to the information provided by the Government, the complaint was examined by the Prosecutor’s Office attached to the Piteşti Court of Appeal which, based on the evidence gathered, in particular statements by the applicants and the patient’s medical record, decided not to prosecute the medical personnel and the prison director. The decision was rendered on 22 March 2010 and communicated to the applicants on 1 April 2010. The applicants did not appeal against the prosecutor’s decision before the criminal courts. 12. In paragraphs 43-45 of the judgment Dumitru Popescu (no. 1) v. Romania (no. 49234/99, 26 April 2007) there is a description of the law concerning complaints against decisions of the prosecutor lodged under Article 2781 of the Code of Criminal Procedure applicable at the date of the facts of the present case. 13. The judgment delivered in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010) describes in detail the relevant domestic law and practice concerning the civil liability of medical staff. 14. Excerpts from Law no. 275/2006 on the execution of sentences concerning the rights of detainees and the remedies provided therein are summarised in Iacov Stanciu v. Romania (no. 35972/05, §§ 113119, 24 July 2012). | 0 |
test | 001-183565 | ENG | LVA | CHAMBER | 2,018 | CASE OF RUNGAINIS v. LATVIA | 4 | No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1967 and lives in Riga. At the material time he was the chairman of the supervisory board of a Latvian bank – Latvijas Krājbanka (“Krājbanka” or “the Bank”). The State held 32.12% of its shares. 6. A.L. was one of the shareholders of Krājbanka. He was also the President of the Bank until January 2002, when he voluntarily stepped down from this position. In November 2002 he was elected as a member of the Latvian Parliament (Saeima), representing a newly established political party, Latvijas Pirmā Partija (the Latvia’s First Party – also referred to below as the “Pastors’ Party”), which had been established in the same year. 7. At the material time an advertising agency, Z., was contracted by both Krājbanka and the Latvia’s First Party to provide certain advertising services. 8. Neatkarīgā Rīta Avīze (“NRA”) was one of the main daily newspapers in Latvia at the material time. It was published by a joint-stock company, Preses Nams (until 2 January 2003) and, subsequently, by the limited liability company Mediju Nams. 9. On 30 September 2002 the applicant prepared a report on the advertising and marketing expenses incurred by Krājbanka in 2001 and the first seven months of 2002, which he then presented to the Bank’s supervisory board. His report was based on information which he had requested from the heads of the marketing and economics departments. According to the applicant’s report, the Bank had transferred substantial sums for advertising and marketing services to, inter alia, Z., for which no supporting documents could be found. This raised suspicions that the Bank’s funds had been misappropriated. The parties did not provide the Court with a copy of the applicant’s report, nor any further details of that report. 10. On 2 October 2002 the Bank’s supervisory board held an extraordinary meeting and ordered an internal audit to verify the applicant’s findings. At a meeting of 16 October 2002 the head of the internal audit department informed the supervisory board that no undocumented advertising and marketing expenses had been incurred. In response to press reports (see paragraphs 13 et seq. below), the internal audit had verified all deals concluded with Z. in 2002; the internal audit in relation to 2001 was ongoing. The information published in the press had not been confirmed. The conclusions of the final report, dated 30 October 2002, indicated that in 2001 no undocumented advertising and marketing expenses had been incurred. All contracted services had been received, but on some occasions no supporting documents have been kept (for example, copies of certain advertisements in the press and some printed material – such as concert posters and tickets – were no longer available). 11. On 16 October 2002 the supervisory board ordered an additional external audit. In May 2003 the audit agency in its report concluded that while the advertising and marketing expenses incurred in 2001 (755,000 Latvian lati (LVL), approximately 1,074,268 euros (EUR)) and 2002 (LVL 555,000, approximately EUR 789,694) had been greater than in previous years (in 1998 the figure had been LVL 374,000, approximately EUR 532,154; in 1999, LVL 324,000, approximately EUR 461,010; and in 2000, LVL 640,000, approximately EUR 910,638), this could be explained by the fact that the Bank had been in the process of changing its corporate identity during the period under consideration. This process had continued while the external audit was being carried out and the Bank had incurred more expenses in this regard. All contracts with Z. had been approved and signed by the Bank’s highest management. The external audit concluded that there was no evidence that payments had been made for services or goods that had not been received or that the payments had exceeded the value of the services received. No personal links had been found between A.L. or the Bank’s staff members and the advertising companies. There was no evidence that the staff members had been forced to work with the particular service provider or to prepare documents for services which the Bank had not received. 12. Meanwhile, A.L. applied to have criminal proceedings instituted in respect of the alleged intentional dissemination of false information about him. By a final decision of 13 August 2003 the prosecution refused to institute criminal proceedings. The information and conclusions, which the applicant had provided to the journalists, had been based on erroneous findings contained in the applicant’s initial report on the advertising and marketing expenses. However, there was no evidence that the applicant had intentionally disseminated false information about A.L. The latter was informed of his right to lodge a civil claim in that regard. 13. Between August 2002 and May 2003 NRA published numerous articles on various topics of public interest concerning the 2002 parliamentary elections. It appears that NRA journalists contacted the applicant for a comment shortly after the meeting of 2 October 2012 of the Bank’s supervisory board had taken place. 14. In their submissions to the Court, the parties disagreed on the manner and form in which the applicant had provided the respective information to the NRA journalists. The Government stated that the applicant had provided this information to the journalists on several occasions, and that his comments, which had contained concrete descriptions of A.L.’s actions, had been provided in the form of facts susceptible of proof. The applicant, however, stated that he had only on one occasion provided a short comment to the journalists via telephone about the issues discussed at the meeting of the Bank’s supervisory board. Furthermore, the comments had constituted merely his own opinion about Krājbanka’s management; they had still needed to be verified by the Bank’s internal audit. 15. The following excerpts are from nine articles, which were published between 3 and 23 October 2002, and which were based on the information provided by the applicant in this regard: 1. “ ‘Krājbanka’s former management accused of fraud’ ... [Since] the beginning of 2001, [LVL] 522,000 has been transferred [to finance] [Krājbanka’s] advertising and marketing activities, in respect of which no documentation – the relevant contracts, delivery/acceptance deeds etc. – has been provided ... [T]he transfer of this sum in an unknown direction (nezināmā virzienā) actually amounts to the destruction of the Bank’s [available] assets. ... As [the applicant] suggested to [NRA], either ‘somebody is receiving this paid money back’ or Krājbanka’s money is being used to create advertising of a completely different kind than that indicated in the available documents. ‘This is money that has been stolen from the shareholders’, [the applicant] stated. ... Moreover, significant advance payments were made [for services to be provided within a year] shortly before [a] change in Krājbanka’s management at the beginning of [2002]. The supervisory board has ordered an internal audit to discover where these funds have disappeared to ... Documents in the possession of [NRA] show that the role of A.L. in the affair of the strange advertising [funds] transfers could be quite significant ... The [Bank’s] public relations unit has dispatched [LVL] 168,000 to who knows whom and who knows where. The Bank’s marketing department stands out even more blatantly. Of a total of [LVL] 743,000 spent, no documentary evidence exists regarding the expenditure of [LVL] 356,000.” (Information published in NRA, 3 October 2002 edition, article written by R.P. and E.L.: “Krājbanka’s former management accused of fraud”.) 2. “This week, Krājbanka’s current officials discovered massive excess expenditure on advertising that was allowed during the period of management of A.L. and V.K. –evidently these persons had been advertising themselves at the expense of Krājbanka.” (Information published in NRA, 5 October 2002 edition, article written by R.R. and U.D.: “The Pastors’ Party – a Šlesers’ family enterprise”.) 3. “ ‘Advertising for the Pastors’ Party – with Krājbanka’s money’ ... The advertising agency, Z., responsible for creating the Latvia’s First Party’s preelection campaign, is one of the companies to which Krājbanka’s former management transferred several hundred thousand [Latvian] lati at the beginning of [2002]. The transfer was carried out without documentary certification as an advance payment for advertising services ... [NRA] has already announced that since the beginning of 2001, Krājbanka has transferred [LVL] 522,000 [to finance] its advertising and marketing activities, in respect of which no documentation is available. ... As [the applicant] admitted to NRA, Z. was the very agency to which more than [LVL] 200,000 of Krājbanka’s funds was transferred at the beginning of [2002] as an advance payment; [details of the] subsequent expenditure [of those funds] are unknown. ‘It is possible that this is the money that provided the foundation for the Latvia’s First Party’s sizable advertising campaign’, admitted [the applicant]. ... Documents in the possession of NRA show that the role of A.L. in the affair of the strange advertising [funds] transfers could have been rather significant.” (Information published in NRA, 12 October 2002 edition, article written by K.P. and E.L.: “Advertising for the Pastors’ Party – with Krājbanka’s money”.) 4. “[The applicant] confirmed to [NRA] that the advertising agency, Z., the creator of Latvia’s First Party’s advertising campaign, is one of the companies to which the former management of Krājbanka transferred more than [LVL] 200,000 at the beginning of [2002] without documentary certification as an advance payment for advertising services. It has already been reported that since the beginning of 2001, Krājbanka has transferred [LVL] 522,000 [to finance] its advertising and marketing activities, in respect of which no documentation – the relevant contracts, delivery/acceptance deeds, etc. – has been provided.” (Information published in NRA, 15 October 2002 edition, article written by R.P.: “Krājbanka’s President concerned about his reputation”.) 5. “ ‘Crisis within Krājbanka’s Management’ ... The scandal revolving around the potentially unlawful activities of A.L., the former President of Krājbanka, has reached its culmination. ... A.L. has a negative opinion of [NRA’s] publications to date regarding the action of Krājbanka’s former management in transferring hundreds of thousands of [Latvian] lati to advertising firms without documentary certification in respect of the expenditure of that money ... [NRA] has already repeatedly written about the long-standing battle among Krājbanka’s shareholders, during which A.L. was accused several times of potentially unlawful actions ... This, however, has not prevented the friends of A.L. from resorting to extreme methods. [NRA] was informed by [the applicant] that ... at the last meeting of the supervisory board, a member of ‘A.L.’s group’, V.D., asked him in a forthright manner: ‘Have the folks from Ventspils insured your property?’ ‘This is an unprecedented event – the chairman of the Bank’s supervisory board being blatantly threatened!’ admitted [the applicant]. He believes that A.L. is now speculating that he will soon be afforded immunity as a member of [parliament], preventing him from being criminally prosecuted without a majority vote of [the Parliament] ... Commenting on the value of marketing, advertising and public relations contracts, [the applicant] admitted that even though it is necessary to carry out in-depth market research, during A.L.’s era various procedures were breached and payments were made whose sums currently cannot be precisely determined ... NRA has already written that [LVL] 522,000 has been transferred [to finance Krājbanka’s] advertising and marketing activities since the beginning of the year 2001, in respect of which no documentation – the relevant contracts, delivery/acceptance deeds, etc. – has been provided ... Additionally, doubts lie in respect of A.L. that certain actions regarding the administration of certificate accounts were also contrary to the interests of both the Bank and the State.” (Information published in NRA, 18 October 2002 edition, article written by R.P.: “Crisis within Krājbanka’s management”.) 6. “[NRA] has already reported that the actions of A.L. as the President of Krājbanka are being questioned in relation to advertising contracts concluded in the amount of several hundreds of thousands of [Latvian] lati. These contracts have no documentary corroboration regarding the specific measures [financed by] the money in question.” (Information published in NRA, 19 October 2002 edition, article written by R.P., E.L. and L.T.: “Repše: the Minister must be morally clean”.) 7. “NRA has already reported that in 2001, when A.L. was still the President of Krājbanka, [LVL] 522,000 was transferred without documentation, apparently for Krājbanka’s advertising and marketing activities, of which [LVL] 200,000 went to the advertising agency, Z., which also happened to be responsible for creating Latvia’s First Party’s pre-election campaign.” (Information published in NRA, 22 October 2002 edition, article written by B.L.: “Parties divide money portfolios!”) 8. “It is possible that during A.L.’s term of office [LVL] 522,000 was transferred [to finance] Krājbanka’s advertising and marketing activities, in respect of which the relevant documentation has not been provided.” (Information published in NRA, 22 October 2002 edition, article written by R.P.: “Krājbanka goes against A.L. at the prosecutor’s office”.) 9. “[NRA] has already written that [LVL] 522,000 was transferred in 2001, without any accompanying documentation, apparently for [Krājbanka’s] advertising and marketing activities, of which [LVL] 200,000 [went] to the advertising agency, Z., which was responsible for creating Latvia’s First Party’s pre-election campaign.” (Information published in NRA, 23 October 2002 edition, article written by B.L.: “Millionaires compete for power”.) 16. On 28 July 2003 A.L. lodged a claim against the applicant and the publishers of NRA seeking compensation and the retraction of a total of thirtyone allegedly defamatory articles. He also indicated that the applicant had provided false information to NRA, which had formed the basis of the above-mentioned nine articles (see paragraph 15 above). 17. During a hearing of 16 January 2004 the applicant admitted before the first-instance court that the information concerning the possible misappropriation of Krājbanka’s funds, which he had provided to NRA, had proved to be incorrect. He made the following statements: “The information [was] wrong, unfounded. [As part of my duties] I was carrying out my task of managing [the Bank’s] activities. I was not interested in A.L.’s private life. I have always respected him. I tried to organise [my] work correctly. As to the mistake regarding numbers, there was one, and I apologise to A.L. and to the journalists. A.L. worked at the Bank and worked in accordance with [its] budget. A.L. made decisions. There were others responsible for [the Bank’s] budget. [The Bank] did not overpay for [its] advertisements. The mistake regarding numbers could not have offended A.L.’s honour and dignity. There were no public statements; maybe there were other [people] who [provided more information to the press].” 18. On 3 October 2005 the Riga Regional Court (Rīgas apgabaltiesa) delivered its judgment, dismissing the claims against the applicant. The court concluded that the nine articles in question (see paragraph 15 above), which had been based on the information provided by the applicant, had reported his personal opinion about the functioning of Krājbanka and its management, which could not be considered defamatory. Moreover, no claim for defamatory information to be retracted was lodged against the applicant. The claims against both publishers of NRA (Preses Nams and Mediju nams) were partly upheld in so far as they concerned six out of the nine articles which had been based on information provided by the applicant and six other articles reporting on other matters. 19. On 28 May 2007 the Civil Cases Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesu palāta) – after appeals by A.L., Preses Nams, and Mediju nams – re-examined the case and delivered a new judgment. The judgment took immediate effect. 20. The appellate court noted that at the material time the press and other mass media had been widely reporting on the 2002 parliamentary elections – that is to say the political parties and their leaders, including the newly-established political party, of which A.L. was one of the leaders. He had stood for election, his candidacy had been widely advertised and it had been, accordingly, examined by the press and other mass media. NRA had published a series of articles about the money spent on the pre-election advertising of the Latvia’s First Party, linking the source of these funds to Krājbanka and its former President, A.L. It had been reported that during his time in office, LVL 522,000 had been transferred for advertising and marketing purposes without any documentary proof thereof having been preserved and that this had been considered to constitute a misappropriation of the bank’s funds. These funds had been spent on the party’s large-scale advertising; as the applicant had put it: “[T]his money has been stolen from the shareholders”. The nine articles had also contained other information provided by the applicant – that during A.L.’s time in office, there had been breaches not only in relation to the advertising expenses, but also other breaches in respect of banking operations, payments without approval, the administration of certificate accounts against the interests of the Bank and the State. 21. The appellate court stated that the information contained in those articles about the use of Krājbanka’s funds and transactions had been provided by the applicant (who had mentioned specific sums), and that the articles had contained references to his statements. 22. The appellate court found that since the applicant had provided this information to NRA journalists, he had to bear responsibility for giving and disseminating false information. The court held that this information had not corresponded to the facts and that this had been acknowledged by the applicant himself during the hearing before the first-instance court (see paragraph 17 above). This had also been confirmed by the results of the external audit and by the prosecution (see paragraphs 11 and 12). 23. The court also held that the journalists had not had a responsibility to verify the accuracy of the provided information, since the applicant’s status as the chairman of the supervisory board of Krājbanka had created a legitimate expectation that the provided information was correct. 24. Lastly, the court found that, even if the margin of permissible criticism in respect of A.L. as a member of parliament was necessarily a wider one than would normally be the case, the false information had nevertheless offended his honour and dignity, as it had contained serious allegations of unlawful activities and had given the impression that A.L. was a dishonest person. 25. Given the above, and in view of the seriousness of the interference and the applicant’s position in the Bank, the court ordered the applicant to pay compensation to A.L. in connection with the nine articles in the amount of LVL 10,000 (approximately EUR 14,229), together with statutory interest (6% per annum). 26. In addition, the court upheld the claim against Preses Nams alone in respect of one other article, and ordered it to pay compensation in the amount of LVL 5,000 (approximately EUR 7,114), together with statutory interest (6% per annum). 27. The applicant and Preses Nams were also ordered to pay A.L.’s legal costs in the amount of LVL 495 (approximately EUR 704) and LVL 375 (approximately EUR 534) respectively. 28. The appellate court dismissed A.L.’s claims against Preses Nams and Mediju Nams as regards all the other articles that had not been based on any information provided by the applicant. 29. On 28 June 2007 the applicant lodged an appeal on points of law with the Senate of the Supreme Court (Augstākās tiesas Senāts). He did not contest that the information he had provided to the journalists had turned out not to be supported by evidence. However, this information had constituted his evaluation of the actions taken by Krājbanka’s management as a whole. He had not directly mentioned A.L. by name, surname or his position when giving the information to the journalists. His allegations regarding the misappropriation of Krājbanka’s funds could only have infringed the interests of the Bank as a legal entity; it could not have offended the honour and dignity of certain executives, who had been under an obligation to inform the supervisory board and the mass media of the truth. Furthermore, the applicant had provided the information in the form of a supposition by indicating that it still needed to be verified by the Bank’s internal audit. It was the NRA journalists who had linked the applicant’s report with the allegations of wrongdoing by A.L. Thus, the applicant could not be held responsible for the manner in which the journalists had decided to present this information, since he had had no means of influencing this. 30. On 30 January 2008 the Senate of the Supreme Court delivered a new judgment, which in essence upheld the appellate court’s judgment. The relevant parts of the judgement read as follows: “[The appellate court’s] conclusion that the applicant had disseminated defamatory and false information was supported by the applicant’s own submissions before the first-instance court, in which he admitted that he had provided incorrect information to [the journalists] ... . The fact that this information was not truthful was confirmed by [the audit agency and the prosecution]. The applicant in his appeal on points of law did not contest these findings. ... He merely noted that he was a source and could not influence the evaluation given by the journalists. Having examined the testimony of [the NRA journalists], the appellate court found that the false information provided by the applicant had related not to Krājbanka’s management, as the applicant indicated, but specifically to A.L., as the then President of the Bank, thus infringing his honour and dignity. ... [The appellate court] found that the journalists had had no reason to doubt the credibility of the information, as it had been provided by the applicant [in his capacity as] chairman of the supervisory board of Krājbanka, and his position had undoubtedly created a legitimate expectation that this information was true ... Accordingly, the appellate court rightly held that the journalists had had no obligation to verify the accuracy of the information provided by the applicant. ... A.L. had requested compensation in the amount of LVL 10,000 from [the applicant]. By granting his claim, the [appellate] court, taking into account the scope of the distributed information and its audience, rightly considered it justified.” The Senate of the Supreme Court also upheld the claim against Preses Nams alone in respect of one other article; they held that A.L.’s honour and dignity had not been offended in other articles. The appellate court had referred to the Court’s case-law and had taken into account A.L.’s status and the fact that he had refused to offer comment. The appellate court had correctly applied the relevant principle that the journalistic freedom also covered possible recourse to a degree of exaggeration, or even provocation; the Senate referred to a/s Diena and Ozoliņš v. Latvia (no. 16657/03, § 84, 12 July 2007) in this regard. Referring to section 2352a of the Civil Law and section 29(3) of the Law on the Mass Media, the Senate of the Supreme Court ordered the applicant (who had disseminated that defamatory information), and not Preses Nams, to retract the relevant parts of the articles in question (see paragraph 15 above). The latter, however, still remained obliged to publish the retracted information. | 0 |
test | 001-159439 | ENG | NLD | ADMISSIBILITY | 2,015 | A.T.H. v. THE NETHERLANDS | 4 | Inadmissible | Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 1. The applicant, Ms A.T.H., was born in 1979 in Ethiopia and is currently living in the Netherlands. She was represented before the Court by Ms S. den Boer, a lawyer practising in Eindhoven. 2. The Netherlands Government were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The Italian Government, who had been invited to intervene under Rule 44 § 3 of the Rules of Court, were represented by their Agent, Ms E. Spatafora, and their co-Agent, Ms P. Accardo. 3. The following summary of the facts of the case is based on the submissions of the applicant and on the replies received from the Governments of the Netherlands and Italy to factual questions put to them under Rule 49 § 3 (a) of the Rules of Court. 4. The applicant claims to be a national of Eritrea because both her parents were nationals of that country. She had lived in Ethiopia all her life when she left that country in 1999, out of fear of deportation to Eritrea, where she would have to undertake military service. Subsequently, having stayed for some time in Sudan and Libya, the applicant arrived in Italy on 2 October 2007, where she applied for asylum under another identity. She was granted a residence permit in Italy which was valid for one year until 26 November 2008 and was later extended for another three years until 7 April 2012. However, she left Italy for the Netherlands in 2009 because, having been granted a residence permit, she purportedly received no other support. She was not provided with (money for) food or medical assistance, and was forced to live on the street. Allegedly, she applied to State authorities and human rights organisations for help on a number of occasions, but without success. 5. At the time of her entry to the Netherlands in 2009, the applicant was pregnant. She was subsequently diagnosed as being HIV-positive. 6. The applicant applied for asylum in the Netherlands on 2 October 2009. 7. On 11 February 2010 the applicant gave birth to a daughter in the Netherlands. 8. On 14 April 2010 the Minister of Justice (Minister van Justitie) rejected the applicant’s request, finding Italy responsible for the determination of her asylum application, pursuant to Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). The Minister dismissed the applicant’s claim that, given her appalling living conditions in Italy between 2007 and 2009, she would risk treatment contrary to Article 3 if returned to Italy, considering that that claim remained wholly unsubstantiated. The general reports relied on by the applicant, which contained negative accounts of the situation of asylum-seekers in Italy, were not considered specific facts and circumstances relating to her individual case such as to form a basis for assuming that Italy would not comply with its obligations flowing from the Convention. Lastly, the applicant’s contention that her medical situation did not allow her transfer to Italy was rejected by the Minister, who considered that the applicant was not receiving any specialist medical treatment in the Netherlands and that, moreover, it had not been alleged or demonstrated that adequate medical treatment would not be made available to her in Italy. 9. An appeal by the applicant against the Minister’s decision was rejected by the Regional Court (rechtbank) of The Hague sitting in Maastricht on 7 July 2010. It upheld the Minister’s decision and reasoning. 10. A further appeal, together with a request for a provisional measure (voorlopige voorziening) staying her removal, was lodged by the applicant with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State. On 23 September 2010 the President of the Division granted the request for a provisional measure, deferring the applicant’s transfer to Italy pending the outcome of the further appeal proceedings. 11. On 14 July 2011 the Division allowed the further appeal. It quashed the judgment of 7 July 2010, as well as the Minister’s decision, as it found that he had failed to have due regard to the general reports submitted by the applicant concerning the situation of asylum-seekers in Italy, which might be relevant to the applicant’s individual case. As to the merits of the case, the Division found that the reports submitted by the applicant were insufficient to assume that her transfer to Italy would result in a violation of Article 3 due to the general living conditions of asylum-seekers in that country. Furthermore, as the applicant had been granted a residence permit in Italy earlier, she was not at risk of expulsion to her country of origin. The Division ordered that the legal consequences of the refusal of the applicant’s asylum request should be maintained. 12. No further appeal lay against that decision. On an unspecified date the applicant was informed that she and her child would be placed in an aliens’ detention centre (vreemdelingenbewaring) for removal purposes. 13. The application was lodged with the Court on 26 August 2011, and on the same day the applicant asked the Court to issue an interim measure within the meaning of Rule 39 of the Rules of Court. 14. On 31 August 2011, in reply to questions put to them under Rule 49 § 3 (a), the Netherlands Government informed the Court of practical aspects of the applicant’s scheduled transfer to Italy. A copy of that reply was sent to the applicant for information. 15. On 31 August 2011 the President of the Section decided, under Rule 39, to indicate to the Netherlands Government that it was desirable, in the interests of the parties and of the proper conduct of the proceedings before the Court, not to expel the applicant to Italy for the duration of the proceedings before the Court. 16. On 18 January 2012 the President of the Section decided that the Government of Italy should be invited, under Rule 44 § 3, to answer factual questions about the applicant’s situation in Italy when she had lived there previously and about the general accommodation, subsistence and medical care offered to asylum-seekers in Italy. 17. The Government of Italy submitted their answers on 12 March 2012. The applicant’s comments in reply were received on 25 April 2012. Additional information was received from the Government of Italy on 15 October 2013. A copy was sent to the Netherlands Government and the applicant for information. 18. On 3 December 2014 additional factual questions were put to the Netherlands Government about the practical effects given to the Court’s judgment of 4 November 2014 in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)). 19. In their reply of 7 January 2015, the Netherlands Government indicated that – following the Tarakhel judgment and where a case concerned the transfer of a family with minor children to Italy – the Netherlands authorities would only transfer such a family after guarantees had been obtained from the Italian authorities that the family would remain together, and where information was available about the specific facility where the family was to be accommodated, in order to guarantee that the conditions there were age-appropriate in respect of the children. For this reason, the actual transfer to Italy would be announced ten to fifteen days beforehand, in order to give the Italian authorities the opportunity to provide information on the specific facility where the family was to be accommodated, to guarantee that the conditions in this facility were suitable, and to guarantee that the family would not be split up. If these guarantees were not received within the time-limit for transfers, as laid down in the Dublin Regulation, the persons involved would be channelled into the Netherlands asylum procedure. However, as long as a Rule 39 indication was in place, the Government were not in a position to commence the preparations for the applicant’s transfer to Italy. 20. The applicant’s comments in reply were submitted on 27 February 2015. Having noted those submissions, the Chamber decided to lift the Rule 39 indication on 24 March 2015. 21. By letter of 5 August 2015 the Netherlands Government submitted a copy of a circular letter dated 8 June 2015 and sent by the Dublin Unit of the Italian Ministry of the Interior (Ministero dell Interno) to the Dublin Units of the other member States of the European Union, in which the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children. The relevant part of the Netherlands Government’s letter reads: “A new policy was considered necessary in view of the fact that reception facilities, specifically reserved for such families, frequently remained unavailed of as a result of families having left for an unknown destination prior to transfer, or having obtained a court order barring their transfer. In order to safeguard appropriate facilities where families may stay together, the Italian authorities earmarked a total of 161 places, distributed over twenty-nine projects under the System for Protection of Asylum Seekers and Refugees (SPRAR). The authorities confirmed that this number will be extended should the need arise. As may be inferred from the letter of 8 June, this comprehensive guarantee is intended to avoid the need for guarantees in specific cases. The Dutch Dublin-Unit will continue to inform its Italian counterpart at an early stage of an intended transfer of a family with minor children. On 13 July 2015, the Dutch, German and Swiss migration liaison officers to Italy issued a report on SPRAR in general, including on the requirements the accommodations must fulfil, and on two projects they had visited on the invitation of the Italian Government. It is understood that later this year also the European Asylum Support Office (EASO) will report on the matter. The Government is of the opinion that the new Italian policy will adequately safeguard that families with minor children are kept together in accommodations appropriate to their needs.” 22. On 31 August 2015 the Netherlands Government informed the Court that the applicant’s transfer to Italy under the Dublin Regulation had been scheduled for 7 September 2015, that the Italian authorities had been informed that the transfer concerned a single mother with a minor child, and that, with the applicant’s permission, due reference had been made to her medical condition and the treatment required. They also submitted a copy of a letter of 4 May 2015 from the Head of Office of the Italian Ministry of the Interior, Department for Civil Liberties and Immigration, received by the Dublin Unit of the Netherlands Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) via e-mail as a document titled “Tarakhel Garanzie – [the applicant’s name]”. The letter stated, inter alia, “We assure you that, after the transfer to Italy, this family group will be accommodated in a manner adapted to the age of the children and the family members will be kept together”. The letter enclosed a note from the Ministry of the Interior, detailing a reception project regarding the transfer of the applicant and her child. 23. The Netherlands Government further submitted a copy of the standard form – prescribed under Article 31 of Regulation (EU) no. 604/2013 of the European Parliament and of the Council of 26 June 2013 – by which the Italian authorities had been notified on 19 August 2015 of the applicant’s transfer to Italy, scheduled for 7 September 2015. It was indicated in that form that the applicant had health problems and that a medical report was attached to the form. The Netherlands official completing the form also noted: “Since this transfer concerns a mother with a minor child, I assume this family will be accommodated in one of the centres included in the list of SPRAR-projects as mentioned in the annex to your letter dated 8 June 2015.” 24. The applicant’s comments on the Government’s submissions of 5 and 31 August 2015 were submitted on 2 September 2015. On the same day she asked the Court to issue a fresh indication under Rule 39 of the Rules of Court, submitting that the information provided by the Netherlands Government contained only general guarantees, which were insufficient to ensure that she and her child would be provided with suitable accommodation and adequate medical care in Italy, emphasising her special needs as a HIV-positive person. The applicant further contended that the 161 places in SPRAR projects which were earmarked for families with minor children were far from sufficient, taking into account the high number of migrants having arrived in Italy in 2015. The applicant argued that, without individual and specific guarantees, she ran a considerable risk of ending up living on the streets, without the special care she and her child needed. 25. Having noted the parties’ submissions, on 3 September 2015 the President of the Section decided to reject the applicant’s fresh Rule 39 request. 26. No further information about the current whereabouts of the applicant and her child has been submitted. 27. The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland (cited above, §§ 28-48); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98117, 10 September 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy (dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25-29 and 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013). 28. The Joint United Nations Programme on HIV and AIDS (UNAIDS) estimated that in 2013 a total of 120,000 (between 110,000 and 140,000) persons aged 15 or more with HIV or AIDS were living in Italy, of whom 13,000 (between 11,000 and 15,000) were women. According to a comparative study carried out by the HUMA Network (Health for Undocumented Migrants and Asylum Seekers) – covering 16 European Union member States and published in November 2010 – on the question of whether undocumented migrants and asylum-seekers are entitled to access health care in the European Union, asylum-seekers in Italy are entitled to access health care on equal grounds as Italian nationals with regard to coverage and conditions. The same applies for unaccompanied children. 29. An information brochure on access to the Italian National Health Service by non-EU nationals, published (in English, among other languages) by the National Institute for Health, Migration and Poverty (Istituto Nazionale Salute, Migrazione e Povertà) of the Italian Ministry of Health, and provided to asylum-seekers and undocumented migrants, states that asylum-seekers have a statutory right to registration in the National Health Service (SSN) system and to be provided with an SSN health insurance card. It further reads: “Asylum or international protection seekers are exempted from the co-pay fee following the statement of indigence. This principle is valid up to six months following the submittal of the asylum application. As of the seventh month, asylum seekers are entitled to work. In order to notify their status of unemployment, they need to register with the Employment Office and obtain the exemption card for low-income reasons.” | 0 |
test | 001-160314 | ENG | HUN | CHAMBER | 2,016 | CASE OF MAGYAR TARTALOMSZOLGÁLTATÓK EGYESÜLETE AND INDEX.HU ZRT v. HUNGARY | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The first applicant, Magyar Tartalomszolgáltatók Egyesülete (“MTE”) is an association seated in Budapest. It is the self-regulatory body of Hungarian Internet content providers, monitoring the implementation of a professional code of Internet content providing and a code of ethics, as well as operating an arbitration commission whose decision are binding on its eleven members. The second applicant, Index.hu Zrt (“Index”) is a company limited by shares, seated in Budapest. It is the owner of one of the major Internet news portals in Hungary. 6. At the material time both applicants allowed users to comment on the publications appearing on their portals. Comments could be uploaded following registration and were not previously edited or moderated by the applicants. 7. The applicants advised their readers, in the form of disclaimers, that the comments did not reflect the portals’ own opinion and that the authors of comments were responsible for their contents. 8. Both applicants put in place a system of notice-and-take-down, namely, any reader could notify the service provider of any comment of concern and request its deletion. In addition, in the case of Index, comments were partially moderated, and removed, if necessary. 9. Both portals stated that comments infringing the personality rights of others could not be uploaded on the websites. 10. Index’s “Principles of moderation” contained the following: “I. Deletion of comments 1.1. Especially forbidden are: 1. comments that, at the time of their posting, infringe the laws of Hungary, indicate or incite to crime or any other unlawful act... 3. vulgar, aggressive, threatening comments. What is vulgar, aggressive or threatening has to be decided by the moderators, in the light of the given topic...” 11. On 5 February 2010 MTE published an opinion under the title “Another unethical commercial conduct on the net” about two real estate management websites, owned by the same company. According to the opinion, the two websites provided thirty-day long advertising service for their users free of charge. Following the expiry of the thirty-day free period, the service became subject to a fee; and this without prior notification of the users. This was possible because, by registering on the website, the users accepted the terms and conditions stipulating that they could be changed unilaterally by the service provider. The opinion also noted that the service provider removed any obsolete advertisements and personal data from the websites only if any overdue charges were paid. The opinion concluded that the conduct of the service provider was unethical and misleading. 12. The opinion attracted some comments of users, acting under pseudonyms, amongst which there were the following: “They have talked about these two rubbish real estate websites (“két szemét ingatlanos oldalról”) a thousand times already.” “Is this not that Benkő-Sándor-sort-of sly, rubbish, mug company (“benkősándoros sunyi szemét lehúzó cég”) again? I ran into it two years ago, since then they have kept sending me emails about my overdue debts and this and that. I am above 100,000 [Hungarian forints] now. I have not paid and I am not going to. That’s it.” 13. On 8 February 2010 the Internet portal www.vg.hu, operated by Zöld Újság Zrt, reproduced the opinion word by word under the title “Another mug scandal”. 14. The consumer protection column of Index also wrote about the opinion under the title “Content providers condemn [one of the incriminated property websites]”, publishing the full text of the opinion. One of the user comments posted on Index by a reader acting under a pseudonym read as follows: “People like this should go and shit a hedgehog and spend all their money on their mothers’ tombs until they drop dead.” (“Azért az ilyenek szarjanak sünt és költsék az összes bevételüket anyjuk sírjára, amíg meg nem dögölnek.”) 15. On 17 February 2010 the company operating the websites concerned brought a civil action before the Budapest Regional Court against the applicants and Zöld Újság Zrt. The plaintiff claimed that the opinion, whose content was false and offensive, and the subsequent comments had infringed its right to good reputation. Once learning of the impending court action, the applicants removed the impugned comments at once. 16. In their counterclaims before the Regional Court, the applicants argued that they, as intermediary publishers under Act no. CVIII of 2001, were not liable for the user comments. They noted that the business practice of the plaintiff, affecting wide ranges of consumers, attracted numerous complaints to the consumer protection organs and prompted several procedures against the company. 17. On 31 March 2011 the Regional Court partially sustained the claim, holding that the plaintiff’s right to good reputation had been infringed. As a preliminary remark, the court observed that consumer protection bodies had instituted various proceedings against the plaintiff company, since it had not informed its clients adequately about its business policies. The Court found that the comments (see paragraphs 12 and 14 above) were offensive, insulting and humiliating and went beyond the acceptable limits of freedom of expression. The court rejected the applicants’ argument that they were only intermediaries and their sole obligation was to remove certain contents, in case of a complaint. It found that the comments constituted edited content, fell in the same category as readers’ letters and the respondents were liable for enabling their publication, notwithstanding the fact that later on they had removed them. As regards the content of the opinion as such, the court found that it had contributed to an on-going social and professional debate on the questionable conduct of the real estate websites and did not exceed the acceptable level of criticism. 18. Both parties appealed. In their appeal the applicants argued that the plaintiff had not requested them to remove the offensive comments. Nonetheless, they had done so as soon as soon as they had been informed of the plaintiff’s action. They also argued that users’ comments were to be distinguished from readers’ letters, since these latter were only published on the basis of editorial decisions, whereas comments did not constitute edited content. They argued that, in respect of comments, they had only acted as service providers of information storage. 19. On 27 October 2011 the Budapest Court of Appeal upheld in essence the first-instance decision but amended its reasoning. It ordered each applicant to pay 5,000 Hungarian forints (HUF) as first-instance and HUF 36,000 as second-instance procedural fee. 20. The Court of Appeal held that – as opposed to readers’ letters whose publication was dependent on editorial decisions – the comments, unedited, reflected the opinions of the sole commenters. Notwithstanding that, the owner of the website concerned was liable for them. According to the court’s reasoning, Act no. CVIII of 2001, transposing Directive 2000/31/EC on Electronic Commerce into Hungarian law, did not apply to the applicants’ case since it only related to electronic services of commercial nature, in particular to purchases through the Internet. Under section 2(3) of the Act, electronic commercial services were information society-related services whose purpose was the sale, purchase or exchange of a tangible and moveable property, which was not the situation in the applicants’ case. In any event, pursuant to its section 1(4), the scope of the Act did not extend to expressions made by persons acting outside the sphere of economic or professional activities or public duties, even if uttered in connection with a purchase through the Internet. For the Court of Appeal, the comments were private utterances which did not fall under Act no. CVIII of 2001 on Electronic Commercial Services. Thus, there was no reason to assess the meaning of the terms of ‘hosting service providers’ and ‘intermediaries’ under that Act. Nonetheless, the comments attracted the applicability of the Civil Code rules on personality rights, notably Article 78. Since the comments were injurious for the plaintiff, the applicants bore objective liability for their publication, irrespectively of the subsequent removal, which was only relevant for the assessment of any compensation. 21. The applicants lodged a petition for review with the Kúria. They argued that, in their interpretation of the relevant law, they were under no obligation to monitor or edit the comments uploaded by readers on their websites. 22. On 13 June 2012 the Kúria upheld the previous judgments. It stressed that the applicants, by enabling readers to make comments on their websites, had assumed objective liability for any injurious or unlawful comments made by those readers. It rejected the applicants’ argument that they were only intermediary providers which allowed them to escape any liability for the contents of comments, other than removing them if injurious to a third party. The Kúria held that the applicants were not intermediaries in terms of section 2(lc) of Act no. CVIII and they could not invoke the limited liability of hosting service providers. It shared the Court of Appeal’s view in finding that the comments were capable of harming the plaintiff’s good reputation and that the applicants’ liability consisted of their having allowed their publication. The Kúria imposed HUF 75,000 on each applicant as review costs, including the costs of the plaintiff’s legal representation. This decision was served on 2 October 2012. 23. The applicants introduced a constitutional complaint on 3 January 2013, arguing in essence that the courts’ rulings holding them responsible for the contents of the comments amounted to an unjustified restriction on their freedom of expression. 24. On 11 March 2013 the Constitutional Court declared the complaint admissible. 25. On 27 May 2014 the Constitutional Court dismissed the constitutional complaint, (decision no. 19/2014. (V.30.) AB). In the analysis of the proportionality of the interference, the Constitutional Court explained the absence of unconstitutionality in the case as follows. “[43] In the case concerned by the Kúria’s judgment, the operator of the webpage did not moderate the comments. The identities of those primarily responsible, unless figuring nominatively, are unknown; and for that reason, the liability lies with the operator of the webpage. [44] In the present case, the aggrieved fundamental right is not the right to freedom of expression as such, but one of its particular elements, the right to freedom of the press. [50] It is without doubt that blogs and comments constitute expressions and as such attract the protection of Chapter IX of the Fundamental Law. [59] The liability incumbent on the operator of the webpage obviously restricts freedom of the press – which includes, without doubt, communication on the Internet. [63] The legislation pursues a constitutionally justified aim. It is also suitable for that purpose in that, without the liability of the operator of the webpage, the person concerned could hardly receive compensation for the grievance. However, the proportionality of the restriction is open to doubt from two perspectives: is it proportionate to hold the operator of the webpage liable for the expression which proved to be unlawful; and moreover, is the extent of the liability (that is, the amount of compensation) proportionate? [65] If the liability for the publication of comments is based on the very fact of the publication itself, it is not justified to distinguish between moderated and non-moderated comments in regard to the proportionality of the restriction on the fundamental right in question. ... The Constitutional Court has already held that the liability of press organs – not of the author – as applied in order to protect personality rights is constitutional.” | 1 |
test | 001-150538 | ENG | LVA | ADMISSIBILITY | 2,014 | PŪCE v. LATVIA | 4 | Inadmissible | Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicant, Mr Agnis Pūce, is a Latvian national, who was born in 1968 and lives in Ventspils. 2. 3. On 3 December 2006 the applicant was arrested on suspicion of having damaged an oil product pipeline and of attempted theft. On 4 December 2006 the applicant’s pre-trial detention was ordered by a judge. On 13 July 2007 the Ventspils Court (Ventspils tiesa) convicted the applicant of the aforementioned crimes and sentenced him to two years in prison. Considering that the applicant had been previously convicted and that in those criminal proceedings he had been given a suspended prison sentence of two years, the final sentence for the applicant’s two convictions was set at three years’ imprisonment. 4. On 7 January 2008 the Kurzeme Regional Court (Kurzemes apgabaltiesa) upheld the judgment of the Ventspils Court. On 7 January 2008, following an appeal on points of law, the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments) upheld the applicant’s conviction, but remitted the judgment with regard to the final sentence that was determined for the applicant’s two convictions. 5. On 27 March 2008 the Kurzeme Regional Court set the final sentence for the applicant’s two convictions at two years and eight months’ imprisonment. The Criminal Cases Division of the Senate of the Supreme Court upheld this judgment with a final decision of 6 May 2008. 6. The applicant was arrested on 3 December 2006 at 0.30 a.m. At the time of the arrest the applicant was driving a car and was wearing no shoes, only woollen socks. The applicant submits that at the time of the arrest he had asked the police officers to take him home to pick up some shoes; this request was, however, rejected. 7. The protocol of detention states that the applicant was arrested at the time of commission of the crime. In its judgment of 13 July 2007 the Ventpils Court established that after having realised that his co-accused had been arrested the applicant had attempted to dispose of his boots, which were subsequently found in the forest. 8. During the trial hearing before the Ventspils Court that took place on 5 July 2007 police officer A.K. and investigator K.G. testified that A.K. had offered the applicant the shoes that had been available at the police office, and that the applicant had refused them. In his application to this Court the applicant denied that he had been offered any shoes. Furthermore, A.K. testified, and the applicant confirmed, that the applicant’s wife had been telephoned and invited to bring the applicant shoes. However, the Court has no information who provided the applicant with shoes and when this happened. 9. Section 6(3) of the Law on the Prosecutor’s Office (Prokuratūras likums), providing for an appeal against action taken by a prosecutor, was cited in Leja v. Latvia (no. 71072/01, § 34, 14 June 2011). 10. Regulation no. 827 (2005) of the Cabinet of Ministers, effective since 5 November 2005, provides that the Head of the Prisons Administration decides on legal challenges brought by private individuals against “administrative acts” issued by or “actions of a public authority” taken by its subordinate officers, unless otherwise prescribed by law (paragraph 6 and 13). The decision of the Head of the Prisons Administration can be brought to court (para 13). 11. The Administrative Procedure Law (Administratīvā procesa likums) that took effect on 1 February 2004 provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts. The relevant provisions of that Law were summarised in the case of Melnītis v. Latvia (no. 30779/05, §§ 24-26, 28 February 2012). 12. Section 11 of the Law on Restrictions regarding the Sale, Advertising and Use of Tobacco Products (Likums “Par tabakas izstrādājumu realizācijas, reklāmas un lietošanas ierobežošanu”), effective since 21 January 1997, sets out the restrictions on smoking. In particular, section 11(1)(2) prohibits smoking in detention facilities, apart from in premises specially set aside for that purpose. Section 11(1)(2) adds that the internal rules of the relevant establishment may provide for the possibility of smoking outside such premises, having due regard to the physical and mental health of the inmates 13. Regulation no. 358 (1999) of the Cabinet of Ministers governed the medical care of convicts in penal institutions until 28 March 2007. On the said date it was replaced with Regulation no. 199 (2007) of the Cabinet of Ministers, which was in force until 23 January 2014. The relevant provisions of both Regulations were cited in the case of Fedosejevs v. Latvia ((dec.), no. 37546/06, §§ 33-34, 19 November 2013). 14. Section 10 of the Medical Treatment Law (Ārstniecības likums), as in force until 5 October 2007, provided that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) was responsible for monitoring the professional quality of medical care in health-care establishments. Following the reorganisation of the MADEKKI, from 5 October 2007 onwards, that task was entrusted to the Health Inspectorate. The competence of these institutions and the domestic case-law with regard to the supervision of medical care in prisons is outlined in the case of Antonovs v. Latvia ((dec.), no. 19437/05, §§ 63-65, 71-79, 11 February 2014). 15. Finally, section 138 (1) of the Criminal Law (Krimināllikums) provides that in cases of inadequate performance of professional duties by a medical professional resulting in serious or moderate bodily injury, such professional may be held criminally responsible. Criminal responsibility for inadequate performance of professional duties by a medical professional resulting in infection with the hepatitis B or C viruses was established by means of amendments to section 138 (2) of the Criminal Law, coming into force on 1 July 2009. Criminal responsibility for wilful infection with the hepatitis B or C viruses was established by way of amendments to section 133 of the Criminal Law effective from 1 July 2009. | 0 |
test | 001-178354 | ENG | RUS | COMMITTEE | 2,017 | CASE OF VOROKOV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing) | Dmitry Dedov;Luis López Guerra | 4. Between 1986 and 1987 the applicants took part in the clean-up operation at the Chernobyl nuclear disaster site. They were subsequently registered disabled and became entitled to various social benefits and compensation paid on a regular basis. 5. Considering these benefits insufficient, the applicants together with other 482 people, sued the Russian Ministry of Finance for additional compensation corresponding to non-pecuniary damage suffered as a result of their participation in the operation. 6. On different dates in January and April 2011 the Nalchik Town Court of Kabardino-Balkaria (“the Town Court”) allowed their claims in part and awarded each claimant, including the applicants, compensation ranging between 1,200,000 Russian roubles (RUB) and RUB 1,600,000 for nonpecuniary damage. 7. No appeals were lodged against these judgments within the statutory ten-day time-limit. The judgments became final but have never been executed. 8. On different dates the Town Court granted the defendant authority’s request to extend the time-limit for appeal on the grounds that the authorities had not received a copy of the judgment in due course. Subsequently the regional Supreme Court quashed the judgments delivered in the applicants’ favour on the grounds that they had been based on retrospective application of the law. | 1 |
test | 001-148180 | ENG | RUS | COMMITTEE | 2,014 | CASE OF NOVOKRESHCHIN v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention) | Dmitry Dedov;Erik Møse;Khanlar Hajiyev | 4. The applicant was born in 1976 and lives in Krasnoyarsk. 5. The applicant was prosecuted for drug dealing and running a criminal syndicate, together with seven codefendants. He was first arrested on 12 October 2005 for selling heroin but released two days later on the undertaking to appear. 6. On 11 November 2005 the applicant was remanded in custody. Subsequently, the criminal case against the applicant was joined with a number of other investigations into drug dealing. On 8 June 2006 the charges against the applicant were reformulated. He was charged with creating and operating a criminal syndicate, twelve counts of drug dealing, three counts of attempted drug dealing and money laundering. 7. The facts concerning the applicant’s pre-trial detention are summarised in the table below. 8. On 25 August and 26 November 2008 and on other dates the Krasnoyarsk Regional Court granted further extensions of the authorised detention period. 9. According to the information submitted by the Government, on 29 April 2010 the Zheleznogorskiy District Court convicted the applicant who remained detained until that date. | 1 |
test | 001-159225 | ENG | HRV | ADMISSIBILITY | 2,015 | SMAILAGIĆ v. CROATIA | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković | 1. The applicant, Mr Jasmin Smailagić, is a Croatian national, who was born in 1951 and lives in Rijeka. He was represented before the Court by Mr V. Margan, a lawyer practising in Rijeka. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 29 March 2001 an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) opened an investigation in respect of the applicant and another person in connection with a suspicion of economic crime. 5. The applicant appealed against that decision on 9 April 2001, arguing that it had not been sufficiently established that he had committed the alleged offences at issue. 6. On 26 April 2001 a three-judge panel of the Zagreb County Court, composed of Judges S.P.L., T.I.T. and S.B.B., dismissed his appeal and upheld the decision of the investigating judge on the grounds that a sufficient degree of reasonable suspicion existed to warrant the opening of an investigation. 7. Following the investigation, on 21 February 2002 the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) indicted the applicant and another person in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of misfeasance in business. 8. On 31 May 2007 the applicant was found guilty as charged and sentenced to ten months’ imprisonment, suspended for three years. 9. The Zagreb Municipal State Attorney’s Office challenged this judgment, with an appeal lodged before the Zagreb County Court on 17 July 2007, arguing that the sentence was too lenient. 10. On 31 July 2007 the applicant also lodged an appeal against the judgment, alleging numerous substantive and procedural flaws. 11. An appeal hearing before a panel of judges of the Zagreb County Court, composed of Judges S.B.B., L.S. and T.I.T., was held on 29 January 2008. The applicant and his lawyer were present at the hearing. They did not object to the composition of the appeal panel. 12. On the same day the Zagreb County Court quashed the first-instance judgment and remitted the case on the grounds of insufficient reasoning in the judgment. 13. Following a retrial, on 13 November 2008 the Zagreb Municipal Criminal Court found the applicant guilty as charged and sentenced him to ten months’ imprisonment, suspended for two years. 14. The applicant appealed to the Zagreb County Court on 2 January 2009, alleging numerous substantive and procedural flaws in the first-instance judgment. 15. At an appeal hearing held on 17 November 2009 before a panel of judges of the Zagreb County Court, composed of Judges S.B.B., L.S. and T.I.T., the applicant and his lawyer reiterated the appeal arguments. They did not object to the composition of the appeal panel. 16. On the same day the Zagreb County Court dismissed the applicant’s appeal as ill-founded and upheld the first-instance judgment. 17. On 26 February 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, inter alia, that the appeal court had not been impartial owing to the fact that Judges S.B.B. and T.I.T. had sat on the panel which had dismissed his appeal, and the same judges had previously upheld the decision to open an investigation against him in connection with the same offences. 18. On 9 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded on the grounds that the questions which Judges S.B.B. and T.I.T. had had to answer when deciding on the opening of an investigation against him differed from those questions which they had examined upon his appeal against the first-instance judgment adopted after a hearing on the merits of the charges held against him. The Constitutional Court therefore considered that there was nothing to warrant calling into question the impartiality of these particular judges. 19. The decision of the Constitutional Court was sent to the applicant’s representative on 10 June 2013. 20. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010 and 05/2014) reads: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 21. At the material time, the relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/02, 62/2003 and 115/2006) provided: “(1) A judge or lay judge shall be excluded from sitting in a case: 1. if he has been injured by the offence; 2. if he is the spouse, a relative by blood, either lineal, descending or ascending, or collateral to the fourth degree, or related by affinity to the second degree, to the defendant, his counsel, the prosecutor, the injured person, their legal guardian or legal representative; 3. if he is a legal guardian, ward, adopted child or adoptive parent, foster parent or foster child of the defendant, his counsel, the prosecutor or the injured person; 4. if in the same criminal case he has carried out investigative actions, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness; 5. if in the same case he has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy. (2) A judge or lay judge may be removed or remove himself from a particular case if it has been argued and proved that there are circumstances other than those listed in the previous paragraph which call his impartiality into doubt.” “(1) A judge or lay judge, as soon as he discovers a ground for exclusion referred to in Article 36, paragraph 1, of this Code, shall discontinue all activity on the case and report the matter to the president of the court, who shall appoint a substitute judge ... (2) If a judge or lay judge holds that other circumstances exist which would justify his standing down (Article 36, paragraph 2), he shall inform the president of the court thereof.” “(1) Disqualification of a judge may also be requested by one of the parties ... (2) A party may seek the disqualification of a judge of a higher court in the appeal or reply to the appeal [of the other party]. In any event, it must be at the latest before the commencement of the hearing of that court. ...” 22. In the decision no. U-III-3116/2002 of 17 September 2004 the Constitutional Court examined whether the previous involvement of a judge, who dismissed an appeal against the investigating judge’s decision opening an investigation, required exclusion of the judge from the subsequent participation in the proceedings under Article 36 § 1 of the Code of Criminal Procedure. The relevant part of the decision reads: “With regard to the arguments from the constitutional complaint that there has been a fundamental error of the proceedings because a judge participating in the main hearing should have been excluded from the case, the Constitutional Court notes as follows: Under Article 36 § 1(4) of the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003 – consolidated text) a judge or a lay judge shall be excluded from sitting in a case if in the same criminal case he has carried out investigative actions, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness. Under Article 367 § 1(2) of the Code of Criminal Procedure a fundamental procedural error exists if a judge or a lay judge who should have been excluded (Article 36 § 1) sat in the case during the main hearing. The County Court’s case file shows that the investigation, that is to say investigative actions, had been carried out by Judge M.B., an investigating judge of the Split County Court, and that Judge J.Č., who presided the trial panel of the first-instance court, as a member of a three-judge panel, had decided upon the appeals against the decision of the investigating judge opening the investigation and ordering pre-trial detention ... In view of the provisions of the Code of Criminal Procedure, and having regard to the above findings ... the [Constitutional] Court finds that an alleged fundamental error in the proceedings at issue has not occurred, which could lead to a violation of the constitutional right to a fair trial.” 23. In the case no. Kž-211/11-9, on 29 January 2015, the Supreme Court also explained: “ ... Article 36 § 1 of the Code of Criminal Procedure concerns instances in which a judge is excluded from sitting in a case if in the same criminal case he has carried out investigative actions, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness. The reasons referred to in Article 36 § 1(4) of the Code of Criminal Procedure are exhaustive, and those reasons do not include participation of a judge in the decision on appeal against a decision opening an investigation.” 24. On 22 February 2008, in case no. Su-IV-187/08, the Supreme Court (Vrhovni sud Republike Hrvatske) examined on the merits a request for the disqualification of two of its judges lodged by the defence under Article 36 § 2 of the Code of Criminal Procedure just before the commencement of an appeal hearing before that court. 25. In case no. Su-1174/10, on 22 November 2010 the Zagreb County Court examined on the merits a request for the disqualification of a judge submitted just before the commencement of an appeal hearing before that court. | 0 |
test | 001-181592 | ENG | MNE | COMMITTEE | 2,018 | CASE OF MONTEMLIN ŠAJO v. MONTENEGRO | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić | 4. The applicant company is a privately owned company registered in Danilovgrad, Montenegro. 5. In July 2004 a call for tender for hotel “Otrant” in Montenegro was issued. The deadline for submitting bids was October 2004. Together with three other companies, the applicant company took part in the tendering process. On 30 November 2004, however, it was informed that the tender was awarded to another bidder. 6. On an unspecified date in December 2004, the applicant company objected to this decision. On 29 December 2004 the Commercial Court in Podgorica (Privredni sud u Podgorici) rejected the applicant company’s objection. 7. On 28 January 2006 the Court of Appeal quashed this decision and remitted the case to the first instance. 8. On 15 June 2006 the Commercial Court ruled against the applicant company. This decision was served on the applicant company on 8 September 2009. 9. On 26 March 2010 the Court of Appeal upheld the decision of the Commercial Court. The decision of the Court of Appeal was served on the applicant company’s lawyer on 27 April 2010. 10. On 15 July 2010 the applicant company lodged an initiative urging the Supreme Public Prosecutor’s Office (Vrhovno državno tužilaštvo) to file a request for the protection of legality (zahtjev za zaštitu zakonitosti), but this motion was rejected on 21 July 2010. 11. On 30 July 2010 the applicant company lodged a constitutional appeal. On 14 October 2010 the Constitutional Court rejected this appeal as having been lodged out of time. | 1 |
test | 001-171603 | ENG | ITA | ADMISSIBILITY | 2,017 | TRAVAGLIO v. ITALY | 4 | Inadmissible | Aleš Pejchal;Guido Raimondi;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano | 1. The applicant was born in 1964 and lives in Turin. He is represented before the Court by Ms Caterina Malavenda, a lawyer practising in Milan. 3. The applicant is a journalist. On 3 October 2002, he published in the weekly magazine L’Espresso an article whose title was “Heinous agreement between the Mafia and Forza Italia” (“Patto scellerato tra mafia e Forza Italia”). 4. The article in question stated that between 1993 and 1994 a secret agreement was supposedly reached between an Italian political party, Forza Italia, and the Sicilian Mafia. The applicant reported that one of the most important political figures within the party, Mr D.U., was suspected of having promised the adoption of more lenient legislative measures favourable to individuals accused of membership of mafia-type criminal organisations, as well as the adoption of other measures beneficial to their economic interests, in exchange for votes from the areas under the Sicilian Mafia’s control. 5. In the article in question, the applicant contended that the existence of such a secret and illegal agreement had been revealed to colonel R. of the carabinieri by Mr I., a prominent member of the Sicilian Mafia who had close connections with some of the most influential figures within the criminal organisation. 6. In his article the applicant alleged that colonel R. and Mr I. had met a number of times from 1993 onwards, and that the former persuaded the latter to become a pentito (a former mafioso who has decided to cooperate with the authorities). In March 1996, Mr I. finally became a pentito and entered the witness protection programme. In this connection, he met with a carabinieri general and the anti-Mafia prosecutors at the headquarters of the Raggruppamento Operativo Speciale (Special Operations Group) in Rome. Following that meeting, a first official interrogation was scheduled by the prosecutors. However Mr I. was assassinated before it could take place. 7. The article went on to report that colonel R. had been questioned by the prosecutors of the Florence District Court in December 1998, in a set of related proceedings. Colonel R. gave an account of the above events and his statements were officially recorded on 21 December 1998 in the context of the latter proceedings. The magazine article suggested that, in subsequent years, colonel R. had been questioned on other occasions by the Florence District Court prosecutors and that his statements had been recorded. In drafting the impugned article, the applicant had relied largely on these statements. 8. The applicant mentioned that criminal proceedings had been instituted against Mr D.U. for aiding and abetting a mafia-type organisation from the outside (concorso esterno), mostly in relation to the events described above. 9. The article continued by providing an account of a meeting that took place in March 2001 in the office of Mr T. (a lawyer and politician active within Forza Italia) involving Mr T., Mr D.U., colonel R., and a co-accused of Mr D.U. In the meeting, Mr D.U. allegedly sought to persuade colonel R. to modify his testimony in the above-mentioned trial (see above paragraph 8) and to withhold the fact that Mr I. had told colonel R. about the involvement of Mr D.U. in the negotiations between Forza Italia and the Mafia. 10. Quoting part of a sentence extracted from the recorded statements made by colonel R. to the Florence District Court prosecutors, the applicant concluded his article by suggesting that another prominent figure of Forza Italia – Mr P. – had been physically present on the premises when the meeting occurred. The quotation in question reads as follows: “On that occasion, as on others, Mr P. was also present in the chambers of Mr T.”. 11. On an unspecified date following publication of the article, Mr P. pressed charges against the applicant (as well as against the editor in chief of the magazine) for defamation through the press (diffamazione a mezzo stampa). He alleged that, by quoting the above-cited statement, the applicant had implied that Mr P. was actively involved in the meeting described (see paragraph 9 above). Mr P. further argued that such an allegation, which he claimed was false, had damaged his reputation, due to the illegal purpose of the meeting in question. 12. On 15 October 2008, the Rome District Court delivered its judgment. The court first noted that, by placing the sentence between quotation marks, the applicant generated in the reader the understanding that it was an accurate representation of colonel R.’s recorded statement. However, the District Court also noted that the statement had not been quoted in its entirety. The complete statement, as replicated by the District Court in its judgment, reads as follows: “On that occasion, as on others, Mr P. was also present in the chambers of Mr T. Mr P.’s presence was, however, due to other reasons, linked to their common political activity and he was not present when the position of Mr D.U. in his criminal proceedings was discussed.” 13. The District Court found that, read in conjunction with the rest of the article, the incomplete quotation acquired a clearly defamatory character. The District Court further noted that this way of mentioning the fact that Mr P. was present on the premises was “unequivocally insinuating” (“indubbiamente insinuante”), thereby generating in the reader a suspicion as regards the role played by Mr P. and suggesting that he was involved in the above-mentioned meeting. 14. The District Court held that the applicant could not rely on his right to impart information (diritto di cronaca) as a justification for his conduct. The District Court reiterated that the application of such a right is dependent on the precondition that the imparted information is accurate. Based on the above arguments, the District Court found that the information conveyed was not correct and that it accordingly lacked the requirement of veracity. 15. The District Court further observed that the applicant’s conduct had breached his duty, as a journalist, to disseminate accurate and fair information, and that he had done so despite being aware of the harm that he would cause to Mr P. 16. The District Court found the applicant guilty of defamation through the press and sentenced him to eight months’ imprisonment (enforcement suspended), payment of a fine of 100 euros (EUR), payment of 20,000 EUR in compensation (to be paid, jointly, with the magazine’s editor in chief), and to bear Mr P.’s courts costs. The Court ordered that the conviction should not appear on his criminal record. 17. On an unspecified date, the applicant lodged an appeal against his conviction. He claimed that the impugned article had not been defamatory of Mr P., and that quoting the whole of colonel R.’s statement had been unnecessary. He further contested the penalty imposed. 18. In its judgment of 8 January 2010, the Rome Court of Appeal upheld the reasoning of the District Court. In particular it reaffirmed that the contested passage in the article had clearly been of a defamatory nature, and that the applicant’s conduct had been deliberate. It added that the applicant should either have refrained from mentioning Mr P. at all or should have quoted colonel R.’s statement in its entirety in order to give an accurate account of the facts as related by the original source. The fact that the applicant chose to refer to Mr P.’s presence without quoting the statement in its entirety proved his malicious intent. 19. The Court of Appeal thus reaffirmed the applicant’s criminal liability. However, it found the penalty imposed by the District Court excessive, as regards the suspended prison sentence, and therefore replaced it with payment of a fine of 1,000 EUR. In all other respects it upheld the sentence imposed by the District Court. 20. The applicant filed an appeal on points of law with the Court of Cassation, claiming that the Court of Appeal’s judgment had lacked adequate and logical reasoning. 21. The Court of Cassation declared the appeal inadmissible in its judgment of 28 March 2014, finding that the reasons put forward by both the District Court and the Court of Appeal were sound and sufficient. | 0 |
test | 001-183553 | ENG | ROU | COMMITTEE | 2,018 | CASE OF LASCĂU 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 | 001-169479 | ENG | ROU | CHAMBER | 2,016 | CASE OF TIBA v. ROMANIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1974 and lives in Oradea. He has been a lawyer since 1997. 6. On 11 December 2008 the National Anticorruption Department instituted criminal proceedings against the applicant and a police officer for traffic of influence (trafic de influenţă). The applicant was accused, as a lawyer, of having requested and received money from a client in return for persuading certain judges, other than in the context of the judicial proceedings, to adopt a favourable judgment in his client’s case. 7. On the same day the case prosecutor authorised several police officers to enforce a warrant to appear (mandat de aducere) issued in the applicant’s name on the basis of Articles 183 and 184 of the Criminal Procedure Code. According to the warrant, the applicant’s presence was required in order to be heard as a suspect (învinuit) in the criminal investigation instituted in File no. 206/P/2008. No other reasons or conditions were stated on the authorisation or the warrant itself. 8. On 12 December 2008 at 8 a.m. a police officer went to the applicant’s office in the city of Oradea to enforce the warrant to appear. According to the police officer’s report, the applicant was shown the warrant to appear and was escorted to the police station in the nearby town of Salonta. At 9.40 a.m. the applicant was handed over to two other police officers who escorted him to the Timişoara office of the National Anticorruption Department (T.N.A.D.). According to the escorting police officers’ report, which was signed also by the applicant, he was handed over to the prosecutor at 11.40 a.m. 9. According to the record of the statements the applicant made before the prosecutor, he was heard as a suspect by the prosecutor at the T.N.A.D. from 12 noon to 4.50 p.m. After the questioning the applicant was charged with the crime of traffic of influence. 10. According to the applicant, his phone, wallet and watch had been confiscated by the police officers and were held during this entire time. Moreover, he had been constantly guarded by the police. 11. By an order issued on 12 December 2008 the applicant was placed in police custody for twenty-four hours commencing at 5.10 p.m. 12. On 13 December 2008 the prosecutor’s request for the placement of the applicant in pre-trial detention for thirty days was allowed by the Timişoara Court of Appeal. The applicant complained before the court that he had been unlawfully deprived of his liberty from 8 a.m. to 5.10 p.m. on the previous day. He requested that the above-mentioned period be deducted from his time in custody. The court considered that it was not competent to decide on this complaint and suggested that the applicant should have used the procedure provided by Article 1401 of the Criminal Procedure Code. 13. The applicant lodged an appeal on points of law (recurs) against that judgment, reiterating that he had been unlawfully deprived of his liberty. On 17 December 2008 the High Court of Cassation and Justice rejected the applicant’s appeal on points of law as ill-founded without addressing his complaint regarding the lawfulness of his detention prior to his placement in police custody. 14. On 12 March 2010 the applicant was found guilty with final effect and given a suspended sentence of four years’ imprisonment for traffic of influence. | 1 |
test | 001-140241 | ENG | PRT | COMMITTEE | 2,014 | CASE OF RATINHO v. PORTUGAL | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Helen Keller;Paulo Pinto De Albuquerque | 4. The applicant was born in 1938 and lives in Lisbon. 5. On 26 March 1997 the applicant started enforcement proceedings against a company before the court of Lisbon (domestic proceedings no. 1476/97.7 TVLSB) in order to obtain the payment of 12 740 euros (EUR). 6. On 24 April 1997 the debtor (executada) opposed the proceedings through the introduction of a motion on that regard (dedução de embargos). The motion was granted and remained valid until 19 September 2006. In the course of the proceedings, procedural steps were taken in the context of the opposition, which had to be suspended twice while waiting for a final decision in other two different proceedings. 7. On 16 September 1997 the court ordered the seizure (penhora) of the debtor’s assets, which took place on 16 January 1998. The applicant opposed it on 22 January 1998. The court ordered the lift of the seizure (levantamento da penhora) on 15 October 1998. 8. On 18 October 1999 the court ordered the suspension of proceedings because of the inactivity of the parties. The proceedings were suspended until May 2002. 9. Between June 2002 and 20 June 2012 several procedural steps took place, mostly notifications, provision of information from the parties and court orders (despachos). On 11 March 2003 the court ordered the sale of the business establishment that had previously been seized. Several attempts to sell it were made until 24 May 2012. 10. On 10 September 2012 due to the inactivity of the parties the court ordered the proceedings to be suspended once again. 11. According to the last information received by the Court on 11 June 2013, the proceedings are still pending. | 1 |
test | 001-145342 | ENG | TUR | CHAMBER | 2,014 | CASE OF YERLİ v. TURKEY | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 5. The applicant was born in 1982 and lives in Adana. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicant are set out in Section B below (paragraph 6). The Government’s submissions concerning the facts are summarised in Section C below (paragraph 7). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraph 8-30). 6. At the time of the incidents the applicant was selling CDs from a street stand in Adana. On 5 July 2001 the applicant and his relative M.Y. were arrested by the police while they were working at the stand. They were taken to the police station and beaten up by a police officer there. As a result of a punch to his ear, the applicant’s eardrum was perforated. The applicant and M.Y. were subsequently released from the police station. 7. On 5 July 2001 the Adana Police Station received a complaint that damaged CDs were being sold from a street stand. A number of police officers went to the venue and talked the applicant and M.Y. into a solution with the complainant, but they did not arrest them because their activity had not constituted an offence. 8. On 7 July 2001 the applicant and M.Y. lodged a criminal complaint with the Adana prosecutor against a police officer who they alleged had ill-treated them on 5 July 2001. At the time of their complaint they did not know the identity of the police officer but gave a description of his physical appearance. They also complained that they had been arrested without any explanation and that as a result of that arrest they had been arbitrarily deprived of their rights. 9. On 9 July 2001 the applicant went back to the Adana prosecutor’s office and complained that he had been injured as a result of the ill-treatment. In order to provide evidence of his injuries the applicant requested a medical examination. On the same day the Adana prosecutor referred the applicant to the Adana Forensic Medicine Institute. 10. On 10 July 2001 the Adana Forensic Medicine Institute reported that the applicant’s left eardrum had been perforated as a result of physical trauma, and that the injury required a 15-day healing period. 11. On 10 July 2001 the applicant also applied to the Adana branch of the Turkish Human Rights Foundation, where a number of physical and psychological assessments were carried out by the doctors working for the Foundation. According to a report drawn up on 22 October 2001, the applicant had a perforation in his left eardrum and he was suffering from acute post-traumatic stress disorder. The report concluded that the doctors’ findings were compatible with the applicant’s story of ill-treatment. 12. In the Turkish Human Rights Foundation’s report the applicant was reported as having described the incident and told the doctors that after he was punched on his ear, his eardrum had been perforated and he was no longer able to hear on that side. He added that, at the end of his arrest, he had not been taken to a forensic doctor for the required medical check, but the police officers had taken him to a private doctor, where he was diagnosed with ear perforation. The applicant submitted the report for the investigation file. However, this evidence was not further investigated during the proceedings. 13. On 11 July 2001 the applicant and his relative M.Y. gave their statements at the Adana prosecutor’s office. The applicant complained that he had been beaten by a police officer working at the Adana Police Station and as a result his eardrum had been perforated. He said that he did not know the name of the officer, but he could identify him. M.Y. affirmed the same in his statement. He complained that he had also been beaten by the same officer; however, he had not asked to be examined by a doctor because the ill-treatment had not left any marks on his body. 14. On 16 July 2001 the prosecutor’s office asked for another medical examination at the Adana State Hospital in order to determine the date of injury to the applicant’s ear. It was concluded that it was medically not possible to determine the date of injury. 15. On 18 July 2001 the applicant submitted the names of his witnesses to the investigating authorities. 16. On 2 August 2001, a chief police commissioner who had been entrusted with the duty of investigating the applicant’s allegations, questioned the applicant, his relative M.Y., the suspect and two other police officers as witnesses. That administrative investigation was conducted because the domestic law applicable at the time required prosecutors to seek permission from the administrative authorities before they could prosecute a police officer (see paragraph 58 below). A police officer, V.A., who worked at the Adana police station, testified as a witness. He stated that the applicant had neither been arrested nor ill-treated on 5 July 2001. 17. On the same day the applicant was arrested once more after a complaint was received regarding his CD stand, and taken to the police station. He was released the following day. 18. On 25 October 2001 the Adana prosecutor decided not to prosecute the police officer because the Governor of Adana had denied the requisite permission for a criminal prosecution. 19. On 6 May 2002 the prosecutor’s decision was notified to the applicant’s lawyer. On the same day the lawyer lodged an objection against the decision. 20. In response to the applicant’s objection, on 20 May 2002 the Tarsus Assize Court decided to quash the decision and ordered the prosecutor to file criminal charges against the police officer. The Assize Court noted that the prosecutor had not conducted a proper investigation and had failed, in particular, to establish whether the applicant had been taken to the police station on 5 July 2001, and to question the eyewitnesses named by the applicant. 21. M.T., a police officer working at the Adana Police Station, was subsequently indicted before the Adana 8th Criminal Court of First Instance (hereinafter “the criminal court”) and the applicant was admitted to the case as the complainant. On 14 August 2002 M.T. gave his statement before the criminal court. He denied all the charges. 22. On 13 August 2002 the suspect M.T. informed the criminal court in writing that he had been assigned to work for the United Nations Mission in Kosovo; therefore, he would not be able to be present at the court hearings. As a result, until June 2004 the criminal court was unable to summon him to take part in the proceedings. 23. On 18 March 2003 and 29 September 2003 the witnesses proposed by the applicant testified before the criminal court. The first witness stated that he had helped the applicant at his CD stand occasionally, and that he had seen him on the day of the incident. The applicant had told him that he had been ill-treated by the police because he had refused to provide them with free CDs. The other witness testified that he had taken the applicant to the hospital, and during that time the applicant had told him that he had been beaten in the police station. 24. On 25 March 2003 police officer V.A. (see paragraph 16 above) appeared as a witness before the criminal court. He testified that the applicant had been taken to the police station by the suspect M.T. However, he had not been subjected to ill-treatment. 25. On 10 June 2004 the suspect M.T. attended the hearing before the criminal court. The applicant was not present at the hearing. The criminal court ordered the applicant to attend the next hearing and identify the suspect from his photographs. However, the applicant and his relative M.Y. could not be brought before the criminal court until May 2005 as a result of a change of address. 26. On 5 May 2005 the applicant and his relative M.Y. attended the hearing before the criminal court. M.Y. also testified as a witness. He stated that the applicant had been subjected to ill-treatment at the police station and had suffered injuries to his ear, which was later diagnosed at the hospital as perforation of the eardrum. The criminal court also asked him to identify the suspect from his photograph. M.Y. stated that he needed to see the suspect in person in order to be able to identify him because he considered that he would not be able to do so from the photographs. 27. On 5 January 2006 the criminal court was informed that the suspect could not appear before the court because he was in Kosovo. The suspect could not be brought before the court until December 2006. 28. On 17 September 2007 the criminal court decided to acquit the police officer on the ground of insufficient evidence. 29. On 18 September 2007 the applicant’s lawyer appealed to the Court of Cassation. 30. On 8 February 2010 the Court of Cassation quashed the decision of the first instance court on the ground that the limitation period had expired, and ordered the discontinuation of the proceedings against the police officer. | 1 |
test | 001-140920 | ENG | POL | CHAMBER | 2,014 | CASE OF A.L. v. POLAND | 3 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1974 and lives in Straszęcin. 6. On 27 October 1995 R, with whom the applicant had been in a relationship but to whom he was not married, gave birth to a son, D. 7. R and the applicant got married on 31 October 1995. On 2 November 1995 the applicant acknowledged paternity of D before the Dębica Registry Office (Urząd Stanu Cywilnego). In accordance with Article 77 § 1 of the Family and Custody Code R, the mother of the minor child, gave her consent to the applicant’s acknowledgment of paternity. 8. On an unspecified date R lodged a petition for divorce with the Zielona Góra Regional Court. On 12 January 2000 the Regional Court granted a decree of divorce. The court awarded the custody of D to the mother. Both parents were ordered to contribute to the maintenance and upbringing of the child. The applicant was ordered to pay first 300 PLN and later 400 PLN per month in child maintenance. No questions as to the applicant’s paternity were raised in the divorce proceedings. 9. Soon after, R married D.S. and their son B was born in 2000. 10. The applicant submitted that he subsequently began having doubts as to his paternity of D and decided to undergo a DNA test. 11. On 4 January 2007 the applicant took D to a private DNA analysis laboratory and had a DNA paternity test conducted. The DNA test confirmed that the applicant was not D’s father. As the applicant could not personally initiate civil proceedings for denial of paternity, due to the expiry of the time-limit specified in Article 80 § 1 of the Family and Custody Code, he requested the Nowa Sól District Prosecutor to file a claim in his name. 12. On 7 February 2007 the District Prosecutor questioned the applicant about the circumstances surrounding the recognition of his paternity of D. The applicant stated, among others, that: “She told me that I had had sexual intercourse with her during a party to which she had invited me as her fiancé. .... I do not remember having had sexual intercourse [with R] at the time... Never before marrying R did I have physical contact with her. ... I have never believed that I am the father of the child. I have recognised this child as mine because I thought I did not have any other option. ... Even before the birth of the child I learnt that R, who at that time had the family name N, had had sexual intercourse with other men during the period in which D had been conceived. .... ” 13. With regard to his contact with D, the applicant stated that he had not yet informed D that he was not his father. D still considered him as his father and called him “Dad”. However, their contact was rare and not particularly warm. He requested the prosecutor to file a claim disclaiming his paternity because he had been deceived by R. 14. R was also questioned by the prosecutor. She stated that the applicant had been aware that he may not have been the father of D. Nonetheless, he had voluntarily decided to recognise his paternity of D. She also stated that D had close emotional ties with the applicant and that the annulment of recognition would be a terrible shock for D. 15. D.S., R’s current husband, stated that he did not intend adopting D because the child had a difficult personality and suffered from the ADHD (Attention Deficit Hyperactivity Disorder). Furthermore, D knew that D.S. was not his father. 16. On 22 March 2007 the District Prosecutor filed a statement of claim with the Nowa Sól District Court asking for the annulment of the applicant’s recognition of paternity of D. The defendants in the proceedings were the applicant, R and D. The prosecutor referred to the DNA test results and to the child’s mother’s testimonies which confirmed that at the time when D had been conceived she had had sexual contact with other men. The prosecutor further stressed that R’s new husband D.S. confirmed that he treated D as his son and together with his biological son B they all formed a family. Lastly, the prosecutor submitted that the applicant’s contact with D was rare and mostly amounted to his obligation to pay maintenance. 17. The District Court appointed a guardian ad litem for D. The guardian requested the court to dismiss the prosecutor’s claim as it was contrary to the child’s interests. 18. The court heard evidence from the applicant, R and D.S. 19. The applicant testified that he had been aware that D may not have been his child at the time of the recognition of his paternity in November 1995. 20. R objected to the prosecutor’s claim on the ground that the applicant had recognised his paternity of D being aware that he could not have been his father. She had not deceived the applicant because the applicant had known that she had had sexual contact with other men. She stated that D had close emotional ties with the applicant and was convinced that the applicant was his father. It would have been very traumatic for D to learn that the applicant was not his father given his ADHD. She submitted that the applicant had stopped paying child maintenance in January 2007. 21. On 20 June 2007 the Nowa Sól District Court dismissed the prosecutor’s action. 22. The court established the following facts. Before the birth of D the applicant and R were cohabiting. However, they also had sexual contact with other partners of which they were both perfectly aware. In 1995 R fell pregnant. She told the applicant that he had been the father of the child and that the child had been conceived during a party. The applicant’s mother put pressure on the applicant to marry R. 23. D was a pupil at primary school. He was diagnosed with the ADHD. From the age of seven years old D was certified as disabled and in need of assistance in his education. The court further established that the applicant had had sporadic contacts with D and that the latter had considered the applicant his father. The court noted that the private DNA paternity test confirmed that the applicant was not D’s biological father. The current husband of R did not treat D as his own child and had no intention of adopting D even in the case of the applicant’s acknowledgment of paternity being annulled. 24. Having regard to these facts, the District Court held that the prosecutor’s claim was ill-founded. The court noted that the applicant could not personally file a claim under Article 80 § 1 of the Family and Custody Code due to the fact that more than one year had elapsed since the date of the recognition of the child. However, even assuming that that the relevant time-limit had not yet expired, his claim would not have been successful since he was required to prove that his recognition of paternity was affected by one of the defects of his declaration of will specified respectively in Articles 82, 84, 86 or 87 of the Civil Code. 25. The court stressed that the applicant had confirmed that he had been perfectly aware that R had had sexual relationships with other men. It did not find credible the applicant’s assertion that he had recognised his paternity of D simply because he had been told by R that D had been conceived at a party. There were no grounds to consider that R had deceived the applicant in order to make him to recognise the child. The court held that the applicant had been fully aware that D might not have been his child; nevertheless, he decided to acknowledge his paternity of D. 26. Furthermore, it was not established that the applicant’s recognition of D had been affected by any other fault which could affect its validity. Accordingly, the court found that there were no grounds to annul the applicant’s recognition of D on the basis of Article 80 § 1 of the Family and Custody Code. 27. However, the claim was filed by a prosecutor who was not bound by the conditions specified in Article 80 § 1 of the Family and Custody Code. Therefore, the court had to examine whether the child’s interest and the rule of law required the annulment of the act of recognition of paternity. 28. The court noted that the institution of recognition of paternity was based on the premise that the child’s interest and the proper functioning of the family were priority values. In this connection, the legislature assumed that for the protection of these values it was justified in some cases to accept a legal fiction that a child was recognised by a man who was not his biological father. In principle, the act of recognition of paternity should reflect the actual legal situation; however, the legislature did not exclude that an act of recognition of paternity would be furnished by a man who only considered having a duty of care towards the child. This was reflected in the fact that there was no duty to verify whether an act of recognition of paternity conformed to the reality. 29. The court held that the arguments put forward by the prosecutor did not justify the finding that the annulment of recognition would be in the child’s interest. The court found, in so far as relevant: “First of all, the prosecutor’s argument, that due to sporadic contacts between the defendant [the applicant] and the minor and the fact that the current husband of R accepted the boy and treats him as his biological son there are no contraindications to the annulment of recognition, was not confirmed. It was established in the proceedings that the minor D still considers the defendant [the applicant] as his father. DS [R’s husband] does not intend to adopt the boy or even to treat him as his own son. In this situation there is a real risk that making the boy aware after so many years that the man who he has considered as his biological father, was not his real father, would constitute a traumatic experience for him. Such information would have been also very difficult to convey due to the fact that it is not possible to establish who the real father is. It does not seem either that the protection of the rule of law would justify the annulment of recognition. It is not possible to defend the argument that the existence of a legal relationship in which a man, who is not a biological father of the child, is considered the father of the child would be an affront to the rule of law, in particular where a man conscientiously decided to recognise his paternity of the child. In the present case it should be firmly underlined that the defendant [the applicant] knew perfectly well that he may not be the father of the child, yet he decided to recognise his paternity. ... Accordingly, the defendant [the applicant] should bear the consequences of his conscious decisions for the sake of the child’s well-being and the child’s proper development. The position of the legislature in this respect is perfectly clear. The rationale of the provisions concerning the acknowledgment of paternity of a child clearly indicates that the legislature considers this manner of establishing the filiation too serious so as to make its existence dependent on a free wish of a man. For this reason the law treats the recognition of paternity of a child as a definitive act and permits that it will be questioned only when the act was affected by defects or in the case of unforeseen special circumstances – which cannot be accepted in the light of the existing legal order or the principles of social co-existence. There were no such circumstances in the present case. The protection of the rule of law does not justify, as claimed by the prosecutor, the disclaiming of the recognition of paternity and the child’s interest goes against the change of the existing legal relationship.” 30. The applicant appealed against the District Court’s judgment. He argued that the court had disregarded the DNA evidence which excluded his paternity of D. He also submitted that the interest of the minor and the rule of law required that the child’s paternity be assigned to the biological father in order to terminate the legal fiction. 31. The prosecutor requested the Regional Court to dismiss the appeal. In his view, the interest of the child no longer justified the pursuance of the original claim. The prosecutor also raised the issue of the applicant’s standing to file an appeal. 32. On 29 November 2007 the Zielona Góra Regional Court dismissed the applicant’s appeal. 33. The court firstly referred to the Supreme Court’s resolution of 20 March 1975 (case no. III CZP 81/74) according to which a legally recognised father was not entitled to file an appeal against the judgment dismissing the prosecutor’s claim on the basis of an accepted fact that he was not the child’s biological father. The Regional Court noted that the Family and Custody Code did not bestow on the man who had recognised paternity of a child the right to sue for annulment of his recognition on the ground that he was not the child’s father. The right to sue for annulment of recognition of paternity in such circumstances was bestowed on the child so recognised when he or she reached the age of majority (Article 81 of the Family and Custody Code). 34. The court further considered that, even assuming that the applicant had standing to file an appeal, there were no grounds to change the firstinstance judgment. The lower court found that the rule of law required maintaining the status quo and that the child’s well-being justified a departure from the biological truth. In addition, the Regional Court relied on the applicant’s divorce file from which it transpired that he had treated D as his own child. It also referred to the Supreme Court’s view that in matters of establishing paternity there was no absolute priority for biological truth. In the light of the above, the applicant’s claim for annulment of the recognition was ill-founded. 35. The applicant filed a cassation appeal. However, on 17 October 2008 the Supreme Court refused to entertain it. | 0 |
test | 001-146399 | ENG | SWE | CHAMBER | 2,014 | CASE OF KARIN ANDERSSON AND OTHERS v. SWEDEN | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court) | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicants own property close to Umeå, in the vicinity of a Natura 2000 area, the European network of nature protection areas established under the EU Habitats Directive of 1992 (see further below at paragraph 33). Most of them live there (permanently or on a part-time basis). 6. On 15 October 1999, the National Rail Administration (Banverket; hereinafter “the NRA”) applied to the Government for permission, under the Environmental Code (Miljöbalken), to construct a 10 km long railway section in a river area in the north of Sweden (constituting the final section of a railway called “Botniabanan”, the total length of which is 190 km). The NRA presented some alternative railway stretches, all located in a specified “corridor”, but recommended the one named “alternative east”. The proposed railway construction concerned certain areas which were or were going to be part of Natura 2000. 7. It appears that six of the present applicants own houses or land within the mentioned “corridor”: Ms Carina Granberg, Ms Agneta Holmström, Mr Gustaf Härestål, Mr Björn Höjer, Ms Inga-Britt Höjer, and Mr Christer Skoog. Ownership of Mr Skoog’s property was transferred to Ms Granberg on 7 January 2011. The properties of the other twelve applicants – houses and land in their ownership or owned houses located on non-freehold sites – are situated outside the “corridor”. The distance from their properties to the “corridor” or the specific stretch of the railway fixed in later proceedings vary; the houses appear to be situated 300 – 2500 metres away whereas the closest piece of land is located about 50 metres from the “corridor”. 8. On 12 June 2003 the Government, after having heard the European Commission, granted the application and allowed the construction of the railway in the proposed “corridor” under the condition, inter alia, that the NRA adopt a railway plan before 1 July 2009 and also a specific plan for the realisation of the necessary environmental compensation measures in the Natura 2000 areas. The plan on compensation measures had to be presented to the Government before the railway plan was adopted. The Government stated, inter alia, that the activity could be permitted, despite its harmful effect on the environment in a Natura 2000 area, if there were no alternative solutions and the railway had to be constructed for reasons of public interest. 9. A number of individual property owners, including three of the applicants in the present case – Ms Bring, Mr Bäcklund and Mr Osterman – petitioned the Supreme Administrative Court (Regeringsrätten) for a judicial review of the case and requested that the Government’s decision be quashed. The property owners claimed that the decision contradicted Swedish law as well as applicable European Union law, including the Habitats Directive. It was argued, firstly, that the decision contravened the general rule in the Environmental Code on the site to be chosen for activities and installations that may affect human health or the environment. This aspect allegedly had a direct and clear bearing on their civil rights. Secondly, they asserted that the Government’s decision violated Swedish regulations on nature conservation by failing to consider relevant alternative sites for the railway. 10. On 1 December 2004 the Supreme Administrative Court dismissed the petitions for a judicial review because it was not possible to determine who should be considered an interested party at that stage of the railway planning. The exact route of the railway would not be established until the railway plan had been drawn up. Until then, it could not be assessed with any certainty who would be affected to the extent that they were entitled to bring an action or what account should be taken of their interests. Further stating that the parties affected to a sufficient extent by the future railway would be able to obtain a judicial review of the later decision to adopt the railway plan, the court refused the petitioners locus standi. 11. One judge dissented, finding that the issue of locus standi in respect of each petitioner should be further investigated by the court in order to ensure that the individual interests were taken into account, having regard to the binding character of the Government’s decision in the later railway planning proceedings. 12. In 2003 and 2004 the NRA applied to the County Administrative Board (länsstyrelsen) in the County of Västerbotten for a permit to construct the railway in the specific Natura 2000 area and to the Environmental Court (miljödomstolen) in Umeå for permits to build two bridges. 13. The County Administrative Board granted a construction permit for the railway by a decision of 14 October 2004, which was subsequently appealed against to the Environmental Court. 14. The Environmental Court decided to examine the cases jointly. By judgments of 24 May 2005 and 13 June 2005, considering itself bound by the Government’s decision of 12 June 2003 on the permissibility of the railway project, the court decided to grant all the permits requested by the NRA. 15. On 15 June 2006 the Environmental Court of Appeal (Miljööverdomstolen) in Stockholm quashed the Environmental Court’s judgments and referred the cases back to the latter instance. The appellate court found that the Government’s decision had not contained a detailed examination of measures necessary to compensate for environmental harm caused by the railway project, and that these issues had to be settled as part of the determination of the construction permit requests. 16. On 26 April 2007 the Environmental Court decided anew to grant the permits requested by the NRA. The court considered itself bound by the Government’s decision as to the permissibility of the railway project and thus limited its examination to the environmental compensation measures, as indicated by the decision of the Environmental Court of Appeal. 17. Two applicants – Ms Granberg and Mr Skoog – appealed against the Environmental Court’s judgment in so far as it concerned the permit for the railway construction. All applicants except Mr Osterman appealed against the part which concerned the permit to construct the bridges. 18. By a judgment of 6 December 2007 the Environmental Court of Appeal affirmed the binding nature of the Government’s permissibility decision and approved the construction of the railway and the bridges with certain added conditions. 19. On 9 May 2008 the Supreme Court (Högsta domstolen) refused leave to appeal and, thus, the Environmental Court of Appeal’s judgment became final. 20. On 21 June 2005 the NRA adopted a railway plan for the area in question. 21. Twelve applicants – all but Ms Holmström, Mr Härestål, Mr Höjer, Ms Höjer, Mr Sjöstedt and Mr Stenlund – appealed to the Government against the railway plan. They essentially complained of the specific stretch of the railway, invoking, inter alia, nuisance such as noise and vibrations affecting the enjoyment of their property. 22. By a decision of 28 June 2007 the Government referred to its decision on permissibility of 12 June 2003. It found that the specific stretch chosen in the railway plan was situated within the permitted “corridor” and thus rejected the appeals. 23. All of the applicants and several other petitioners turned to the Supreme Administrative Court and requested that it, by way of a judicial review, order the quashing of the Government’s decision. They claimed, inter alia, that, although their civil rights were affected by the planned railway, they had not had these rights considered and determined by a court, in violation of the Convention. As to the chosen location of the railway, they also asserted that the Government’s decision was contrary to provisions of the Environmental Code and the EU Habitats Directive. 24. On 10 December 2008 the Supreme Administrative Court, after having held a hearing in the case, rejected the petition, finding that the railway plan was in line with the Government’s decision of 12 June 2003 on the permissibility of the railway project and that the proceedings for the adoption of the plan did not demonstrate any failings. The court considered that the question of permissibility of a railway project was within the power of the Government, which had to take into account public interests such as environmental, industrial, economic and regional policy. The Government’s permissibility decision was binding for the subsequent proceedings in that courts and other decision-making bodies could not examine issues that had been determined by that decision. Thus, in the proceedings concerning the construction permits requested by the NRA, the various instances could decide on conditions and other details but not on the general permissibility as defined in the Government’s decision. Similarly, in the third stage of the decision process – the adoption of the railway plan – it was for the authorities and courts to decide only on the precise location of the railway, within the area designated by the Government’s decision. The Government had not been obliged to review its decision of 12 June 2003 on the permissibility of the railway project and the designation of the “corridor” in which the railway could be located. These issues could not be examined in the third stage of the decision process. The Supreme Administrative Court further stated that, if private interests were affected by the location of a railway project, judicial review could be obtained by petitioning the court in proceedings against the Government’s permissibility decision. The fact that the court, on 1 December 2004, had concluded that no individual petitioner could be considered to have locus standi in relation to the permissibility decision did not compel it to include in its current examination of the adoption of the railway plan the issues of permissibility of the project or its general location. 25. One judge dissented, considering that the Supreme Administrative Court’s judgment contravened its decision of 1 December 2004. She noted, inter alia, that the adoption of a railway plan – as opposed to the construction permits – had direct consequences for the individual as it entailed a right for the railway company, under certain conditions, to expropriate land. Consequently, the court, in the instant case, should have examined all the objections presented by the appellants, including the claim that there were better alternative locations for the railway. According to the dissenting judge, a full judicial review had also been foreseen by the court in its earlier decision. 26. It appears from the parties’ observations in the case that at least ten of the applicants (including seven with houses or land situated outside the “corridor”) have received some form of compensation as a consequence of the railway construction, either for land requisitioned or for reduced residential value or market value. In one case, the change to noise-reducing windows was partly paid by the NRA. It is not clear whether the other applicants requested compensation. In the vicinity of some properties, whose owners have not received compensation, noise barriers have been erected in order to keep the noise from the railway below the applicable target values. | 1 |
test | 001-141763 | ENG | TUR | CHAMBER | 2,014 | CASE OF DİLİPAK AND KARAKAYA v. TURKEY [Extracts] | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Just satisfaction reserved | András Sajó;Guido Raimondi;Helen Keller;Paul Lemmens;Peer Lorenzen;Robert Spano | 5. The applicants were born in 1949 and 1953 respectively and live in İstanbul. They are both journalists who were working for the Akit daily newspaper at the material time. 6. On 25 June 2000, on the occasion of the funeral of Admiral Güven Erkaya, the former Commander-in-Chief of the navy and member of the National Security Council, Mr Karakaya published an article in the Akit daily newspaper, whose front-page headline read “We will not waive our rights”. In the article the journalist criticised the late Admiral for the role he had played in the political process triggered by the meeting of the National Security Council on 28 February 1997, which some observers have called a “post-modern coup d’état”. 7. On 26 June 2000 Mr Dilipak also published an article in the same newspaper on Admiral Erkaya, criticising his actions. 8. On 29 September 2000 the deceased’s family brought a civil action for damages in the Ankara Civil Court of First Instance (“the Civil Court”) against the applicants and the company owning the newspaper. The family also lodged a complaint with the Istanbul public prosecutor’s office. 9. When bringing their civil action, the Erkaya family gave the newspaper’s registered office as the defendants’ address. 10. However, the postal service did not succeed in serving the summons and the statement of claim on the applicants at this address, as they were not to be found there. This fact was confirmed by the elected neighbourhood leader (muhtar), who countersigned the report noting that the summons could not be served on the relevant persons. 11. The Civil Court then asked the police to ascertain the applicants’ addresses. 12. According to the Civil Court, after the police had completed their inquiries, they informed it of two addresses in Istanbul: one in the Aksaray neighbourhood (Küçüklanga Caddesi no. 103), in respect of Mr Karakaya, and the other in the Mecidiyeköy neighbourhood (Mecidiye Caddesi no. 7/50 Çavuşoğlu İş Merkezi), in respect of Mr Dilipak. 13. The decision was subsequently taken to send fresh summonses to these addresses. 14. The record of the service of Mr Karakaya’s summons stated that it had been handed to a certain N.G., describing him as an “authorised employee” (yetkili personel). 15. In the case of Mr Dilipak, the summons could not be served on the ground that he was unknown at the stated address. 16. The Civil Court decided to serve the summons via publication in the press on the ground that it was impossible to ascertain Mr Dilipak’s address. 17. On 21 January 2003, in the absence of the defendants, who had never appeared at the hearings, the Civil Court delivered a judgment ordering them jointly to pay the sum of 30,000 Turkish liras (TRY), equivalent to some 17,000 euros (EUR), together with interest in arrears from 25 June 2000, for non-pecuniary damage. 18. The Civil Court considered that in his article Mr Dilipak had insinuated that the deceased would pay for his wrongdoing and that justice would be done The Civil Court noted that he had used the phrase “may your land be abundant”, which was reserved for non-Muslims. It cited the following passage in particular: “Whatever you do, do not remind me of the injunction ‘do not speak ill of the dead’. This injunction does not apply to Hitler, Mussolini or Stalin. Otherwise the Koran would not say what it does about Nimrod and Pharaoh. Güven Erkaya was certainly not Hitler, but nonetheless he holds a particular place in the consciousness of our people.” 19. In the case of Mr Karakaya, the Civil Court held that he had insinuated that the circumstances surrounding the Admiral’s death –particularly his cancer – were but his due for the suffering which he had inflicted on the people. It noted that the journalist had also written that this death had not saddened him, that he would not attend the Admiral’s funeral and that he would not waive his rights over him. It also noted the following passage: “He made the people weep, but now his family are weeping ... He invented the lie that Koranic school students swore an oath to combat the secular system and Atatürk. The Koranic schools may now be closed, but so are Erkaya’s eyes.” 20. The Civil Court concluded that the applicants had “exceeded the limits of criticism by launching a personal attack on the deceased on the ground of his functions”, especially since he had been a “valorous army commander who [had] served the nation”. 21. Furthermore, it pointed out that inquiries had been carried out into the defendants’ economic and social situation and that the turnover of the company owning the Akit newspaper had been ascertained from the tax authorities. 22. The judgment was not served on Mr Karakaya because he no longer lived at the latest address known to the registry (Küçüklanga Caddesi). As he had not informed the court of his change of address, the judgment was deemed to have been served in accordance with section 35 of the Notification Act (see paragraphs 57-66 below). 23. The record drawn up by the notifying officer stated that a local resident, R.Ö., had been questioned about Mr Karakaya’s new address, albeit in vain. A stamp used by the local muhtar indicates that the address of service was a business address which had not been recorded in his files. 24. In the case of Mr Dilipak, the judgment was served via publication in a newspaper on 14 April 2003. The judgment became final on 29 May 2003. 25. On 3 June 2003 the Civil Court added an annotation to its judgment to the effect that it was final (kesinleşme şerhi). 26. On 9 June 2003 the Erkaya family submitted a copy of the final judgment to the Ankara Enforcement Office and brought enforcement proceedings. On the same day the payment orders were drawn up and posted to the applicants ... 27. Mr Dilipak received his payment order at his home address in the Acıbadem neighbourhood in Kadıköy (Istanbul). Mr Karakaya also received his order at his home address in Beylikdüzü (Istanbul). 28. On an unspecified date the applicants sought leave from the Civil Court to appeal on points of law against the judgment of 21 January 2003, observing that they had been apprised of the latter on receipt of the aforementioned payment orders. 29. On 17 June 2003 the Civil Court rejected the applicants’ appeal (temyiz dilekçesinin reddi) on the ground that the judgment had become final. 30. The applicants lodged an appeal on points of law against the 17 June 2003 decision. 31. Mr Dilipak challenged the lawfulness of serving the documents in question by publication in the press, contending that this procedure could only be used after all other methods had failed. He pointed out that he had been residing at the same address for more than twenty years, and submitted that the requisite steps had not been taken to find his address. In his view, his address could have been easily ascertained by means of a simple letter to the Journalists’ Association (Gazeteciler Cemiyeti) or to the Directorate General of Press, Publications and Information (a department operating under the Prime Minister, with responsibility for issuing press passes). 32. He pointed out that the judgment had become enforceable on 3 June 2003 and that the payment order had been drawn up and sent to his home within one week of that date. Furthermore, the address had been given to the Department for the Execution of Sentences by counsel for the Erkaya family. He specified that the latter had long been in possession of his address and had deliberately refrained from saying so until the judgment had become final. 33. Mr Dilipak concluded that neither the summons nor the judgment had been validly served on him. 34. Mr Karakaya, for his part, complained that the documents had been served at another person’s address rather than his own. 35. He pointed out that in accordance with the law, when judicial documents were served at a business address, they could be handed over to one of the addressee’s permanent employees if, and only if, the addressee was absent. He submitted that in the present case, the documents had been served at a business address but that the person mentioned in the record had not been one of his employees. Moreover, the record did not mention the reason why the documents had not been handed over to him in person. 36. Lastly, he found it surprising that the claimants had considered throughout the proceedings that his address was “Küçüklanga Caddesi no: 103 – Aksaray/Istanbul” and that, less than a week after the judgment had become final, they had suddenly found his real address and given it to the Department for the Execution of Sentences. 37. On 24 December 2003 the Court of Cassation dismissed on the merits the appeal on points of law against the impugned judgment on the ground that the latter was “in conformity with procedural and statutory law”. 38. On 13 September 2004 Mr Dilipak submitted a request for rectification of the judgment. 39. He submitted that the Civil Court had not made any serious attempt to find his address. 40. Mr Dilipak pointed out that the court had indeed submitted a request to the police and that the report sent to the court had indicated one address for each of the other two defendants, but that neither of these addresses had concerned him. He specified that the document in the case file contained a handwritten entry “Mutakil San Is. Ad.Dem, M.Köy” alongside his name, that the author of this entry was unknown, and that the judge had, strangely enough, considered that it referred to the address “Mecidiye Cad. no: 7/50 Cavuşoğlu Iş Merkezi Mecidiyeköy Istanbul”, to which he had decided to send the summons made out to him. 41. Explaining that according to the law and the case-law of the Court of Cassation the court should have made enquiries among the relevant government departments and institutions and not confined itself to police searches, he accused the court of having failed to take the necessary action. In this connection, he produced letters from the civil status register, the Press Council (Basın Konseyi), the Journalists’ Association, the Directorate General of Press, Publications and Information, and an employers’ organisation (MÜSIAD), stating that according to their files, he was a long-term resident of the Acıbadem neighbourhood in Istanbul. He also submitted a document from the elected leader of the Acıbadem neighbourhood to the effect that he had been living at the same address in that neighbourhood since 22 July 1989. 42. Mr Dilipak also presented a letter from the Istanbul Governor’s Office confirming that he had been assigned a bodyguard. In his view this meant that his address was known to the police. 43. Moreover, the Social Security Department, the Land Registry and the Municipal Council had all been aware of his address. 44. He also submitted that the Erkaya family must have known his address because it had been mentioned in the case file for the criminal proceedings which they had jointed as intervening parties, the summons had been sent to him at that address and he had stated the same address at his hearing before the Ankara Criminal Court. 45. He based his whole line of reasoning on the case-law of the Court of Cassation, including a judgment delivered by its Joint Civil Chambers on 29 September 1999 (1991/1-609 E – 1999/744 K). In this judgment the court had stressed the importance of judicial notices, which were closely linked to the rights of the defence. It had held that efforts to ascertain an address should be very wide-ranging, covering enquiries to government bodies such as municipal councils, civil status and land registries and various professional bodies, and that such action should not be confined to police investigations. 46. On an unspecified date Mr Karakaya also submitted a request for rectification of the judgment. 47. On 14 February 2005 the court dismissed the applicants’ requests on the ground that the conditions had not been met for rectifying the judgment. 48. On 5 February 2007 the Ministry of Justice invited the Public Prosecutor at the Court of Cassation to lodge an appeal in the interests of the law against the judgment of 21 January 2003 on the ground that the rules on notification of judicial documents had been infringed. He backed up his arguments by citing the aforementioned judgment adopted on 29 September 1999 by the Joint Civil Chambers of the Court of Cassation. 49. On 2 April 2007 the Court of Cassation dismissed the appeal in the interests of the law lodged by the Public Prosecutor’s Office. ... 54. On 3 August 2012 the applicants applied for the reopening of the proceedings before the Ankara Civil Court of First Instance and a stay of execution of the judgment of 21 January 2003. In support of their application, they submitted that criminal proceedings for an attempted coup d’état had been instituted against senior army officers who had been on the National Security Council in February 1997, and that those concerned had been taken into pre-trial detention. According to the applicants, this was a new fact that had been unknown to the court at the time of the judgment. They pointed out that this fact was liable to cast doubt on the court’s use of such laudatory expressions as “valorous army commander who served the nation” in connection with the deceased. Furthermore, the applicants submitted that the applications which they had lodged with the Court were currently under examination and that a finding of a violation of the Convention was a ground for reopening the proceedings. They therefore invited the court to order a stay of execution of the judgment until the Court had heard and determined their applications. 55. By an order of 16 August 2012, the Civil Court decided to suspend the enforcement procedure on condition of payment of a surety of TRY 164,000 (approximately EUR 74,500 at the time). 56. No information has been provided on the action taken on this order. | 1 |
test | 001-173365 | ENG | AZE | CHAMBER | 2,017 | CASE OF MUSTAFAYEV v. AZERBAIJAN | 4 | 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) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 5. The applicant was born in 1937 and lives in Sumgayit. 6. The applicant’s son, Mahir Mustafayev (M.M.), was born in 1967 and at the time of the events was serving a life sentence in Gobustan Prison. 7. The applicant’s son, who suffered from epilepsy, was held with one other inmate (S.R.) in cell no. 94, designated for two inmates. 8. Since June 2006 M.M. had sent numerous complaints to various domestic authorities, including the Ministry of Justice, the Prosecutor General’s Office and the Ombudsman of the Republic of Azerbaijan. He complained, in particular, of his conditions of detention, of violations of inmates’ rights in Gobustan Prison and of ill-treatment by prison guards because of his complaints to various domestic authorities, alleging that his life was in danger. 9. On 2 December 2006 S.R. left cell no. 94 for a long-term visit to his mother and M.M. remained the sole occupant of the cell. 10. Early in the morning of 3 December 2006 a fire broke out in the cell. According to the applicant, the fire began at approximately 6 a.m. and prison guards did not immediately intervene to extinguish it despite warnings from other inmates. It took an hour for them to open the cell door after the outbreak of the fire. 11. According to the Government, the fire broke out at approximately 6.50 a.m. The prison guards took immediate action and opened the cell door at around 7 a.m. They took the applicant’s son out of the cell and gave him first aid. M.M. was sent to hospital by car at 11.45 a.m., arrived at 2.45 p.m. and died at 3.30 p.m. 12. The applicant was informed by telegram at 3.21 p.m. on 6 December 2006 of the death of his son. 13. It appears from M.M.’s death certificate, dated 13 March 2007, that the cause of death was first and second degree burns over the whole body and smoke inhalation (bütün bədənin texniki yanığı, I-II dərəcəli yanıq, intoksikasiya). 14. On 4 December 2006 the Garadagh District Prosecutor’s Office launched a criminal inquiry into M.M.’s death. 15. On 7 December 2006 the investigator in charge of the case refused to institute criminal proceedings. The investigator found that M.M. had suffered from epilepsy and that the fire had begun after his cigarette had fallen onto the bed during a seizure. The investigator relied on a statement written by M.M. after the incident, which stated that the fire had broken out because he had had an epileptic seizure while smoking. The investigator found that the prison guards had acted immediately in order to extinguish the fire. The investigator also referred to a statement from S.R. that he had seen M.M. after the incident, at approximately 10 a.m. on 3 December 2006, and that M.M. had told him that he had had a seizure and that he had not known how the incident had happened. The investigator’s decision also referred to post-mortem forensic report no. 147 dated 5 December 2006, which confirmed the existence of extensive burns on M.M.’s body. The forensic report also established that the time of the injuries corresponded to 3 December 2006 and that they were the kind of injuries which caused serious harm and could be life-threatening. 16. Despite the Court’s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.’s death, the Government failed to provide the Court with a copy of M.M. and S.R.’s written statements of 3 December 2006 and forensic report no. 147 of 5 December 2006, submitting that the case file had been destroyed. 17. The applicant was provided with a copy of the investigator’s decision of 7 December 2006 only one month later. He immediately lodged a complaint against that decision with a superior prosecutor. 18. On 16 February 2007 the Baku City Prosecutor overturned the investigator’s decision and remitted the case to the Garadagh District Prosecutor’s Office for a new examination. The prosecutor held that the investigator had not duly examined the scene of the incident. He also asked the investigator, inter alia, to order forensic fire, chemical and handwriting examinations, to check if M.M.’s cell had been equipped with an adequate fire detection system, to question other inmates, prison guards, and the medical staff who had given first aid to M.M. and to establish why M.M. had not been taken to hospital immediately after the incident. The prosecutor also asked the investigator to order a new forensic examination in order to establish, inter alia, whether M.M. had been able to speak and move freely immediately after the incident given the nature of his injuries. 19. On 26 April 2007 the investigator again refused to institute criminal proceedings, concluding that there had been no crime involved in M.M.’s death. He relied mainly on the statements submitted by the prison guards, who said the fire had broken out at approximately 7 a.m. because of M.M.’s epileptic seizure and that they had intervened immediately after the incident. The investigator also noted that handwriting report no. 2692 dated 6 April 2007 had indicated that the statement written on 3 December 2006 had been signed by M.M. However, he also noted in the decision that forensic expert report no. 32 dated 25 April 2007 had stated that M.M. had not been able to move, speak or write immediately after the incident as he had been in a state of shock as a result of his burns. The decision also recorded that chemical analysis report no. 2375 of 19 March 2007 had concluded that there had been no trace of oil products in samples taken from the cell walls or of carbonised particles. The investigator also pointed out that it was not possible to carry out a forensic fire examination because the scene of the incident had not been preserved and repairs had been carried out in the cell in question. As regards the statements by some inmates that the fire had broken out at approximately 6 a.m., that it had taken an hour for the prison guards to open the door of the cell and that M.M. had died as a result of their negligence, the investigator noted that the cells of the inmates in question were situated far from M.M.’s cell and that therefore their statements could not be considered as reliable. The investigator also questioned Gobustan Prison’s paramedic (feldşer) (N.B.) who had given first aid to M.M. after the fire. N.B. stated that he had been informed by telephone at home about the incident at around 7 a.m. on 3 December 2006. He had taken a taxi to the prison and had arrived fifteen minutes later. He had given first aid to M.M. but his condition had worsened at around 8 a.m. and he had requested his transfer to a hospital. N.B. stated that he had accompanied M.M. in the car that had transported him to the hospital but they had not arrived until 2.45 p.m. because they had waited for an hour and fifteen minutes for the car to be repaired after it had broken down. In that connection, the investigator referred to letter no. 17/1/15-954 of 27 February 2007 from the Prisons Service of the Ministry of Justice, confirming that the car transporting M.M. to the hospital had arrived at 2.45 p.m. and that the delay in his transfer had been due to the fact that the car had broken down on its way to the hospital. The letter also contained information about M.M.’s medical history, pointing out that he had previously been admitted five times to that medical establishment, had been diagnosed four times with epilepsy and had received the appropriate treatment. 20. Despite the Court’s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.’s death, the Government failed to provide the Court with a copy of chemical analysis report no. 2375 dated 19 March 2007, handwriting report no. 2692 dated 6 April 2007, forensic expert report no. 32 dated 25 April 2007, letter no. 17/1/15-954 of 27 February 2007 from the Prisons Service of the Ministry of Justice and the statements made by the prison guards, medical staff and inmates detained in Gobustan Prison, submitting that the case file had been destroyed. 21. The applicant lodged a complaint against the investigator’s decision with the Garadagh District Court, complaining that he had failed to carry out an effective investigation. 22. On 4 July 2007 the Garadagh District Court dismissed the applicant’s complaint. 23. On an unspecified date the applicant lodged an appeal against that decision. He complained, in particular, of the inconsistency between the conclusions of the handwriting report dated 6 April 2007 and the forensic expert opinion dated 25 April 2007. He also argued that the investigator and the first-instance court had failed to examine photographs of M.M. taken immediately after the incident on 3 December 2006. He submitted that the photographs showed that M.M.’s body had signs of ill-treatment. 24. On 27 July 2007 the Baku Court of Appeal granted the appeal and remitted the case to the prosecuting authorities for fresh examination. The appellate court held that the prosecuting authorities had failed to examine the photographs of M.M. for signs of ill-treatment on his body or to establish why the scene of the incident had not been preserved. 25. On 15 October 2007 a prosecutor at the Garadagh District Prosecutor’s Office again refused to institute criminal proceedings on the grounds of a lack of a criminal element in the death. In particular, the prosecutor held that there was no evidence that M.M. had been ill-treated, as alleged by the applicant. He relied in that connection on the conclusions of forensic report no. 147, which had only confirmed the existence of numerous burns on M.M.’s body. 26. On an unspecified date the applicant appealed against that decision. 27. On 6 December 2007 the Garadagh District Court overruled the prosecutor’s decision and remitted the case to the prosecuting authorities for a new examination. The court pointed out the inconsistencies as to when the fire had begun. It further held that the investigation had failed to clarify why M.M. had been taken to hospital almost eight hours after the fire had broken out. The court held that the fact that the car transporting M.M. had broken down could not explain such a long delay. The court also found that the investigation had failed to examine whether M.M.’s conditions of detention had been appropriate for a person suffering from epilepsy. 28. On 7 January 2008 the investigator in charge of the case again refused to institute criminal proceedings. The wording of the decision was identical to that of 26 April 2007, except the last few paragraphs, which concerned the conditions of detention of inmates suffering from epilepsy. In that connection, relying on statements made by the head of the prison regime department of Gobustan Prison and N.B., the investigator found that domestic law did not provide for any special conditions of detention for inmates suffering from epilepsy or any restriction on the authorised items they could possess in prison. 29. On 14 March 2008 the Garadagh District Court overruled the investigator’s decision of 7 January 2008 and remitted the case to the prosecuting authorities. The court held that the investigator had failed to examine the reason for the delay in M.M.’s transfer to hospital. It also pointed out the inconsistencies in the inmates’ statements concerning the circumstances of the incident. The court further found that it had not been established whether M.M.’s conditions of detention had been compatible with his illness and that an inquiry should have been carried out as regards the necessary security and medical measures for a person like M.M., whose condition was likely to give rise to sudden seizures. 30. On 7 May 2008 a prosecutor at the Garadagh District Prosecutor’s Office again refused to institute criminal proceedings, using wording that was almost identical to the decisions of 26 April 2007 and 7 January 2008. The prosecutor found that it had been M.M.’s fault that the fire had broken out and that he had died as a result of his burns. He further held that the prison guards had taken immediate action and there had been no negligence on their part. The prosecutor noted that there was no special rule for the detention of inmates suffering from epilepsy. He also confirmed that there had been a delay in taking M.M. to hospital because the car had broken down. He further found that it had not been possible to carry out a forensic fire examination as the scene of the incident had not been preserved. Lastly, the prosecutor referred to a statement made by a forensic expert, A.M., that there had been no causal link between M.M.’s death and his delayed transfer to hospital. 31. Despite the Court’s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.’s death, the Government failed to provide the Court with a copy of A.M.’s statement, submitting that the case file had been destroyed. 32. The applicant was provided with a copy of that decision only on 26 December 2008, following intervention by the Ombudsman. 33. On an unspecified date the applicant lodged a complaint against the prosecutor’s decision of 7 May 2008, arguing that the prosecuting authorities had failed to investigate the questions raised by the previous court decisions. In particular, there had been no plausible explanation for M.M. not being taken immediately to hospital after the incident. He also disputed the official version, according to which M.M. had been able to write a statement immediately after the incident and that he had caused the fire himself. 34. On 12 February 2009 the Garadagh District Court dismissed the applicant’s complaint. The judge held that all the facts of the case had been examined by the prosecuting authorities and that M.M. had died as a result of an accidental fire. 35. On 6 March 2009 the applicant appealed against that decision, arguing that there had not been an effective investigation into his son’s death in prison. He argued that the wording of the prosecutor’s decision of 7 May 2008 had been almost identical to the prosecuting authorities’ previous decisions and that it had not dealt with any of the questions raised by the previous court decisions. 36. On 22 May 2009 the Baku Court of Appeal dismissed the applicant’s appeal, finding that there was no reason to overrule the first-instance court’s decision of 12 February 2009. | 1 |
test | 001-180501 | ENG | RUS | CHAMBER | 2,018 | CASE OF BARABANOV v. RUSSIA | 3 | Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1990 and lives in Moscow. 6. The background facts relating to the planning, conduct and dispersal of the demonstration 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 demonstration 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 became apparent 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 two sides. At 5.30 p.m. the police ordered the meeting to finish early and began to disperse the participants. It took them about two hours to clear 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. At the time of his arrest the applicant was working as an artist. According to him, on 6 May 2012 he arrived at Kaluzhskaya Square to take part in the march and walked down Yakimanka Street to Bolotnaya Square. He passed the metal detectors and joined other protestors in front of the stage, where a rock group was performing. Sometime after 6 p.m. he walked towards Malyy Kamenyy Bridge but discovered that movement in that direction had been blocked by a police cordon. The applicant walked back, staying in the general area; at around 7.30 p.m. groups of police officers started pushing into the crowd, forcing it apart by using their truncheons. Protestors were surrounded and squeezed together. At some point the applicant realised that he was facing the police line and that the police were using excessive force to arrest protestors. The applicant was both angered and scared by the actions of the police and actively resisted. He was eventually seized by four police officers and escorted to a police car, which took him to a police station. 10. On 14 May 2012 the Justice of the Peace of the 100th Court Circuit of the Yakimanka District of Moscow found the applicant guilty of noncompliance with a lawful order by a police officer, an offence under Article 19.3 of the Code of Administrative Offences. The Justice of the Peace established that after the meeting at Bolotnaya Square the applicant had shouted anti-government slogans, ignoring the lawful demands of the police to cease those acts. He had thrown objects at the police officers, including stones, flagpoles, empty plastic bottles, and pieces of asphalt, and had refused to proceed to the police van. The applicant was sentenced to detention of twenty-four hours. It appears that after his release the applicant continued to live at his usual address and pursue his customary activities. 11. On 28 May 2012 the applicant’s flat was searched. On the same day he was detained on suspicion of participation in acts of mass disorder and of committing violent acts against the police on 6 May 2012. 12. On 30 May 2012 the Basmannyy District Court of Moscow ordered that the applicant be placed in pre-trial detention until 6 July 2012. It referred to the gravity of the charges and stated that if he was at liberty the applicant could co-ordinate his position with accomplices whose identities were still being established by the investigation. The court also pointed out that the applicant had forcefully resisted the police officers during his arrest, which had led to them using force and handcuffs against him. In addition, the court relied on information obtained from undercover sources that the applicant had connections with football fans and groups of anarchists. The applicant denied that allegation and challenged the use of information from undisclosed sources. However, the court concluded that there were sufficient reasons to believe that he was likely to abscond, continue his criminal activity, threaten witnesses, destroy evidence or otherwise obstruct the course of the criminal proceedings. It dismissed a request from the applicant for an alternative preventive measure and found that his release was not required on health grounds. 13. On 4 June 2012 the applicant lodged an appeal against the detention order, which was dismissed by the Moscow City Court on 27 June 2012. 14. On 5 June 2012 charges were brought against the applicant under two Articles of the Criminal Code, Articles 212 § 2 (participation in acts of mass disorder accompanied by violence) and 318 § 1 (use of violence against a public official). He was accused, in particular, of active resistance to police officers and of participation in a group assault on a police officer whereby the applicant had allegedly pulled a protective helmet off the officer’s head and had punched and kicked him on the head and body. 15. On 4 July 2012 the Basmannyy District Court examined an application from the investigator for an extension of the applicant’s pre-trial detention. The applicant argued that he had no criminal record, was in work, and had a permanent residence in Moscow where he lived with his family. He denied any involvement with football fans or anarchists and asked for the preventive measure to be changed to house arrest. On the same day the District Court granted the investigator’s application and extended the applicant’s detention until 6 November 2012. It relied on the gravity of the charges and information on the applicant’s character, which gave it sufficient grounds to presume that he might reoffend, threaten witnesses and other participants of the criminal proceedings, destroy evidence or otherwise obstruct the proper administration of justice. 16. On 12 July 2012 the applicant lodged an appeal against the extension order, which was dismissed by the Moscow City Court on 6 August 2012. 17. On 31 October 2012 the Basmannyy District Court examined a new application for an extension of the applicant’s pre-trial detention. Referring to the gravity of the charges and the complexity of the criminal investigation, the court extended his detention until 6 March 2013. 18. On 13 November 2012 the applicant lodged an appeal against the extension order, which was dismissed on 3 December 2012 by the Moscow City Court. 19. On 16 November 2012 the charges against the applicant were updated. The classification of the offences remained unchanged but it was specified that the applicant had struck the police officer once on the head and had kicked him once on the body while he was lying on the ground. 20. On 1 March 2013 the Basmannyy District Court authorised a further extension of the applicant’s detention until 28 May 2013. The court relied on the gravity of the charges and the need to allow the defendants sufficient time to read the investigation case file. That decision was upheld by the Moscow City Court on 10 April 2013. 21. On 23 April 2013 the Moscow City Court granted an extension of the applicant’s detention until 6 July 2013. The court noted that even though the applicant and his lawyer had already finished reading the case file, other defendants had not. It reiterated the grounds given in the previous extension orders and stated that the circumstances justifying the detention order had not changed. The Moscow City Court upheld that decision on 30 May 2013. 22. On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges. 23. 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 gravity of the charges, the court based its decision on the findings that “the reasons which 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 that extension order on 2 July 2013. 24. On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant. It ordered their detention until 24 February 2014 on the grounds of the gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order. 25. On 6 June 2013 court proceedings began in hearing room no. 338 at the Moscow City Court, moving at the end of July 2013 to hearing room no. 635. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued at the Nikulinskiy District Court of Moscow in hearing room no. 303, while in January and February 2014 they took place at the Zamoskvoretskiy District Court in hearing room no. 410. Those hearing rooms were equipped with metal cages in which nine defendants (seven from 19 December 2013), including the applicant, sat during the hearings. 26. For a detailed description of the conditions in those hearing rooms see Yaroslav Belousov (cited above, §§ 74-77). 27. On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participation in acts of mass disorder and committing acts of violence against police officers. On 18 June 2013 the court began the trial on the merits. 28. On an unidentified date Police Officer K., the alleged victim of the applicant’s assault, was examined as a witness. He testified that he had been carrying out an order to split the crowd up when someone had pulled at his bullet-proof vest. He had fallen to the ground; someone had hit him several times and had taken off his anti-riot helmet. Other police officers had picked him up to take away him from the crowd. As a result of his fall and the blows, he had sustained injuries. Another police officer, V.K., testified that the applicant had kicked an unidentified police officer. 29. Three other officers, also examined as witnesses, stated that the applicant had resisted arrest by planting his feet firmly on the ground and attempting to escape. He had also uttered obscenities to the police officers and shouted at them. 30. On 21 February 2014 the Zamoskvoretsky District Court found the applicant guilty as charged. It held, in particular, as follows: “Between 4 p.m. and 8 p.m. on 6 May 2012 ... at Bolotnaya Square ... unidentified persons ... called those present [at the venue] to move outside the agreed meeting venue, to defy the lawful orders of the police ..., to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [and] the destruction of property. On the same day at 5 p.m. at the latest [the defendants] acquired the criminal intent to participate in mass disorder and to use violence against ... police officers ... Moreover ... the participants of the acts of mass disorder threw chunks of tarmac, stones, sticks and other objects at the police ... which hit them on various parts of their body, and [the defendants] ... [who] participated in the acts of mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force which was not a danger to the life or health of those [officials] ... Thus, [the applicant] used violence against Police Officer [K.] which did not endanger his life or health ... ... between 5.10 p.m. and 8.20 p.m. ... unidentified participants of acts of mass disorder ... intentionally seized [K.] by his uniform and knocked him down, while [the applicant] together with other unidentified participants of acts of mass disorder, acting intentionally ... tore off [K.’s] anti-riot helmet ... and punched and kicked him several times on his head and body, meanwhile [the applicant] punched [K.’s] head at least once and at least once kicked [K.] on the body when the latter was lying on the ground. ... [The applicant] ... pleaded not guilty and testified that ... he wanted to see why the meeting was not starting and went to Malyy Kamennyy Bridge where he saw the cordon ... Around 7.30 p.m. [the applicant] saw how police officers ... started beating people with truncheons. ... Then a jam occurred ... At some point [the applicant] found himself in the first line and saw the police officers harshly arresting and beating people, who tried to evade the blows. He was hit several times on the shoulder and the head, which led to dizziness. He was scared, he felt that his life was in danger, and while in a state of fury he moved towards a police officer, who happened to be [K.] and then moved his leg towards the police officer, who was getting up. [The applicant] did not see who knocked the latter down... [He] did not know whether his hand reached the target but supposed that he was able to touch the bullet-proof vest. He definitely did not touch [K.] with his leg and he caused him no harm. A few minutes later he was taken out of the crowd and beaten, his T-shirt was torn, then ... four police officers seized him and dragged him along the tarmac to the police vehicle. [The applicant] insists that he caused no injuries to the police officer and that his actions, provoked by panic, were taken in response to the events occurring around him. ... ... the court considers the [defendants’] arguments that they were protecting somebody from the police officers or happened to be victims of the police’s use of force as farfetched and aimed at the mitigation of their responsibility ... ... no medical document which could prove the presence of injuries on the [applicant’s] body ... was provided to the court.” 31. The applicant was sentenced to three years and seven months’ imprisonment, calculated on the basis of a three-year prison term under Article 212 § 2 of the Criminal Code, partly concurrent with a term of one year and eight months under Article 318 § 1 of the Criminal Code. The applicant’s pre-trial detention counted towards the prison sentence. 32. The applicant appealed against the judgment. He contested the classification of the crimes under both Article 212 and Article 318 of the Criminal Code. He insisted that he had been a victim of unlawful police action and that his involvement in using violence against the police officer has not been proven. 33. On 20 June 2014 the Moscow City Court upheld the first-instance judgment. | 1 |
test | 001-184278 | ENG | RUS | CHAMBER | 2,018 | CASE OF VOLOKITIN AND OTHERS v. RUSSIA | 3 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 6. The cases concern the 1982 State internal premium loan bonds (облигации государственного внутреннего выигрышного займа 1982 года - “1982 premium bonds”) which are in the applicants’ possession. The applicants submitted lists of serials numbers or photocopies of their bonds. 7. On 30 December 1980 the USSR Cabinet of Ministers decided to issue bonds of an internal premium loan to finance certain State programmes. The bonds had nominal values of 25, 50 and 100 Soviet roubles (SUR). Their period of circulation was set at twenty years, from 1 January 1982 to 1 January 2002, and they were redeemable at any time during the term of the loan with interest at 3% per annum. Soviet citizens could either buy the 1982 premium bonds with their own money or obtain them in exchange for bonds from an earlier 1966 State internal premium loan. The average monthly wage in 1982 was SUR 177.30 across all branches of the economy plus SUR 68.70 in various social benefits (People’s Economy of the USSR 1982, a statistical yearbook by the USSR Central Statistics Directorate, Moscow, 1983). 8. By the late 1980s the Soviet economy was suffering from a structural imbalance due a rapidly increasing money supply and decreasing availability of consumer goods sold at State-controlled prices. In January 1991 the USSR Government freed 40% of prices and carried out a monetary reform eliminating the largest banknotes in circulation and restricting the withdrawal of money from bank deposit accounts to SUR 500 a month. This led to a two to threefold increase in prices. On 22 March 1991 the USSR President issued Decree no. UP-1708, ordering a one-time increase to savings instruments, including the 1982 premium bonds, of 40% to offset the price rise. 9. On 26 December 1991 the USSR was dissolved by Declaration no. 142-N of the Supreme Soviet of the USSR. The declaration invited the heads of newly independent States to reflect on the issues of succession. 10. On 19 February 1992 the Russian Government issued Resolution no. 97, recognising its succession in respect of the obligations of the former USSR under the 1982 loan: “1. To confirm succession of the [Russian] Government in respect of the obligations of the former USSR vis-à-vis Russian Federation citizens arising out of the bonds of the 1982 State internal premium loan. ... 6. To give Russian Federation citizens who are holders of bonds of the 1982 State internal premium loan the right to voluntarily exchange their bonds against State securities, including 1992 Russian internal premium loan bonds, shares in the Savings Bank ... and also to credit the proceeds of sale of the bonds into deposit accounts open in the Savings Bank ... from 1 October 1992 ...” 11. Between 1995 and 2000 a series of Russian laws and regulations were passed which provided for the conversion of Soviet securities, including the 1982 premium bonds, into special Russian promissory notes nominated in “promissory roubles” (DOR) (for details, see Yuriy Lobanov v. Russia, no. 15578/03, §§ 16-21, 2 December 2010). 12. From 2003 to the present day, the application and implementation of those laws and regulations have been continuously suspended, most recently for the period 1 January 2017 to 1 January 2020, by Law no. 429FZ of 19 December 2016 and Resolution no. 1437 dated 22 December 2016. 13. The applicants applied to the Russian financial authorities and the courts, seeking the redemption of their bonds. Their claims were rejected on procedural and substantive grounds. Mr Ruzanov’s claim was allowed at first instance but the judgment was later overturned on appeal. On 5 May 2014 Mr Israfilov obtained a decision from the Leninskiy District Court in Makhachkala, requiring the Russian Government to convert his bonds into special promissory notes. 14. Mr Losyakov and Ms Losyakova’s claim was referred by the Supreme Court to the Constitutional Court. By decision no. 632-O of 3 April 2012, the Constitutional Court declared it inadmissible, finding that it was not competent to rule on the issue of an alleged failure of federal lawmakers to enact laws guaranteeing the protection of savings which had been recognised as Russia’s internal debt. In its view, the federal lawmakers had adequate discretion to legislate on those issues in the interests of everyone, taking into account the specific social and economic conditions prevailing in Russia and the balance between the rights and lawful interests of various categories of citizens, including those who acted as creditors of the State and others in respect of whom the State had public policy obligations. The legislature was entitled to restrict the rights, including property rights, of some people for the protection of rights and lawful interests of others. | 1 |
test | 001-148271 | ENG | TUR | CHAMBER | 2,014 | CASE OF EMEL BOYRAZ v. TURKEY | 3 | Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 4. The applicant was born in 1975 and lives in Elazığ. 5. On 19 October 1999 the applicant sat an examination in order to become a public servant. She was successful in the examination and on an unspecified date she was informed by the State Personnel Department attached to the Prime Minister’s office that she had been appointed to the post of security officer in the Batman branch of TEDAŞ, the state-run Electricity Company, the first of the five choices that the applicant had made in the course of the examination procedure. 6. On 5 July 2000 the human resources department of the Batman branch of TEDAŞ informed the applicant that she would not be appointed as she did not fulfil the requirements of “being a man” and “having completed military service”. 7. In a letter dated 9 August 2000 and addressed to the Ministry of Energy and Natural Resources, the human resources department of TEDAŞ requested the Ministry to provide a list of new persons to be appointed instead of a number of persons, including the applicant, who could not be recruited for various reasons. As regards the applicant and three other persons, B.U., R.B. and A.O.C., the human resources department of TEDAŞ informed the Ministry that they were women and therefore could not work as security officers. In the letter, it was stated that security officers had the task of protecting depots, switchyards and transformer stations in rural areas far from city centres, against attacks and in case of fire and sabotage. They were obliged to work day and night and to use weapons, including those with long barrels, and physical force in case of an attack. It was therefore considered that women were not suitable for the post of security officer. 8. On 18 September 2000 the applicant lodged an action against the general directorate of TEDAŞ with the Ankara Administrative Court requesting the annulment of the decision of the Batman branch of TEDAŞ with all its financial consequences. In her deposition, the applicant noted that being a man was not a requirement for appointment to the post in question and that she fulfilled all the requirements for that post. The applicant also noted that she had been deprived of the opportunity to be appointed to one of the other four posts that she had indicated following the refusal in question and that she could not sit the examination again in 2000 as she had succeeded in 1999. 9. On an unspecified date the general directorate of TEDAŞ submitted to the administrative court that one of the requirements for the post in question had been declared by the State Personnel Department as “having completed military service” and that therefore only men could be appointed to the post. The applicant, being a woman, could therefore not be recruited as a security officer. 10. On 27 February 2001 the Ankara Administrative Court annulled the decision of the Batman branch of TEDAŞ. The court held that the requirement of “having completed military service” should be considered to apply only to male candidates and that there had been no restriction on women working as security officers in TEDAŞ. The court also noted that another woman, Y.P., who had also brought a case against TEDAŞ for the same reasons as the applicant, had been appointed to the post of security officer after she had lodged the case. 11. Subsequent to the judgment of 27 February 2001, the applicant was offered a contract by the Batman branch of TEDAŞ. On 11 July 2001 she took up her duties. On 1 March 2002 she was transferred to the Elazığ branch of TEDAŞ as her husband lived and worked in that city. 12. On 8 May 2001 TEDAŞ lodged an appeal against the judgment of 27 February 2001, requesting the Supreme Administrative Court to order a stay of execution of the judgment of the Ankara Administrative Court and to subsequently quash it. The representative of TEDAŞ submitted, inter alia, that the announcement of the post of security officers in the Batman branch contained the requirement of “having completed military service” and not “in respect of male candidates, having completed military service”, unlike the post in the Gaziantep branch of TEDAŞ, which first rejected Y.P. According to the lawyer, this expression demonstrated that the post was reserved for male candidates only and that therefore the status of the applicant was different from that of Y.P. 13. On 27 June 2001 the Supreme Administrative Court dismissed the request for a stay of execution. 14. On 31 March 2003 the Twelfth Division of the Supreme Administrative Court quashed the judgment of the Ankara Administrative Court, holding that the requirement regarding military service demonstrated that the post in question was reserved for male candidates and that this requirement was lawful having regard to the nature of the post and the public interest. The high court therefore found that the administration’s decision had been in accordance with the law. 15. On 1 August 2003 the applicant requested rectification of the decision of 31 March 2003. In her petition, she submitted that the post of security officer was not reserved for male candidates and that therefore the high court’s decision was in breach of the principle of equality. 16. On 17 March 2004 the applicant was dismissed from her post at the Elazığ branch of TEDAŞ. According to the letter sent by the deputy head of the human resources department of TEDAŞ to the Elazığ branch, the applicant’s contract was to be terminated on account of the decision of the Supreme Administrative Court dated 31 March 2003. 17. On 22 March 2004 the applicant lodged a petition with the Supreme Administrative Court. She maintained that she had lost her post and requested the high court to order a stay of execution of the decision of 31 March 2003. She noted, in her petition, that the post in question should not be reserved only for men, since certain acts, such as a body search on women, should be carried out by female officers. 18. On 16 April 2004 her request was dismissed by the Twelfth Division. 19. On 11 October 2005 the Twelfth Division of the Supreme Administrative Court further dismissed the applicant’s request for rectification. 20. On 21 February 2006 the Ankara Administrative Court dismissed the applicant’s case, taking into consideration the decision of the Supreme Administrative Court. 21. On 24 April 2006 the applicant appealed. In her deposition she noted that there were three other similar cases brought against TEDAŞ by female candidates for the same reasons as hers and that one of these cases, brought by R.B., who had also not been appointed to a post of security officer in the Batman branch of TEDAŞ on the same grounds as those applied to the applicant, was pending before the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions. She further noted that she would have lost the opportunity to apply for another public post, had the high court decided in favour of TEDAŞ. 22. On 6 December 2007 the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions (Danıştay İdari Dava Daireleri Genel Kurulu) issued a decision in favour of R.B. The General Assembly held that the requirement of “having completed military service” should be considered to apply only to male candidates and that the refusal to appoint R.B. to the Batman branch of TEDAŞ had therefore been unlawful. 23. On 12 February 2008 the Twelfth Division of the Supreme Administrative Court upheld the judgment of 21 February 2006, holding that the latter was in accordance with the law. In its decision, the court noted the content of the decision of the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions but did not comment on it. 24. On 17 March 2008 the applicant requested rectification of the decision of 12 February 2008, maintaining that the decision in question constituted a breach of the principle of equality and the right to a fair hearing since the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions had ruled in favour of R.B. She further claimed that there had been discrimination, since pursuant to the Constitution no distinction could be made in public employment. 25. On 17 September 2008 the Twelfth Division of the Supreme Administrative Court dismissed the applicant’s request. | 1 |
test | 001-178700 | ENG | ISL | CHAMBER | 2,017 | CASE OF HAARDE v. ICELAND | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione personae;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing;Impartial tribunal;Independent tribunal);No violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege) | Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano;Ksenija Turković | 6. The applicant was born in 1951 and lives in Reykjavík. 7. The applicant was a member of the Icelandic Parliament (Althingi) during the years 1987 to 2009. He served as Minister of Finance in the years 1998 to 2005, Minister for Foreign Affairs from 2005 to 2006 and Prime Minister from 2006 to 2009. After Parliamentary elections in May 2007 the applicant led the government which was formed by the Independence Party (Sjálfstæðisflokkurinn), of which he was a member, and the Social Democratic Alliance (Samfylkingin). 8. In the beginning of October 2008 the Icelandic banking system collapsed. On 6 October 2008 the applicant proposed a bill to Parliament which, on the same day, was adopted as the Act on the Authority for Treasury Disbursements due to Unusual Financial Market Circumstances etc. (Lög um heimild til fjárveitingar úr ríkissjóði vegna sérstakra aðstæðna á fjármálamarkaði ofl., no. 125/2008). Among other things, it authorised the Financial Supervisory Authority (Fjármálaeftirlitið) to intervene in the operations of financial undertakings. On 7 and 9 October 2008 the authority seized control of Iceland’s three largest banks, Landsbanki Íslands hf., Glitnir banki hf. and Kaupþing banki hf. 9. In December 2008 Parliament established a Special Investigation Commission (Rannsóknarnefnd Alþingis, hereinafter “the SIC”) to investigate and analyse the processes leading to, as well as the causes of, the collapse of the above-mentioned banks. According to section 1 of the Special Investigation Commission Act (Lög um rannsókn á aðdraganda og orsökum falls íslensku bankanna 2008 og tengdra atburða, no. 142/2008; hereinafter “the SIC Act”), one of the Commission’s objectives was to assess whether mistakes or negligence had occurred in the course of implementing laws and rules in respect of financial activities in Iceland and regulatory inspection in that field and, if so, who might be responsible. While its role was not to investigate potential criminal conduct, the SIC should inform the State Prosecutor of any suspicions of criminal activities having taken place as well as any potential breaches of official duty. The SIC made an extensive investigation during which it collected information from individuals, financial institutions and public institutions, conducted formal hearings with 147 individuals and meetings with a further 183 individuals. 10. The applicant testified before the SIC on 2 and 3 July 2009. On 8 February 2010 the SIC informed him that it considered that he had acted negligently and invited him to submit a written statement in reply, which he did on 24 February 2010. 11. On 12 April 2010 the SIC issued its report which contained a detailed description of the causes of the collapse of the Icelandic banks as well as serious criticism of the acts and omissions of a number of public officials and institutions. This included the applicant and two other ministers from his cabinet, the Minister of Finance, Mr Árni M. Mathiesen from the Independence Party, and the Minister of Business Affairs, Mr Björgvin G. Sigurðsson from the Social Democratic Alliance, who were found to have shown negligence by omitting to respond in an appropriate fashion to the impending danger for the Icelandic economy that was caused by the deteriorating situation of the banks. 12. In the meantime, on 26 January 2009, the government led by the applicant resigned and on 1 February 2009 the Social Democratic Alliance and the Left-Green Movement (Vinstrihreyfingin – grænt framboð) formed a government. Those two parties gained a majority of seats in Parliament in the subsequent elections on 25 April 2009. 13. In 2009 Parliament passed an amendment to the SIC Act according to which it was to elect an ad hoc parliamentary review committee (Þingmannanefndin; hereafter “the PRC”) “to address the report of the SIC on the collapse of the banks, and form recommendations as to Parliament’s response to the SIC’s conclusions”. It was also to adopt a position on ministerial accountability and assess whether there were grounds for impeachment proceedings before the Court of Impeachment (Landsdómur) for violations of the Ministerial Accountability Act (Lög um ráðherraábyrgð, no. 4/1963). The PRC was established on 30 December 2009 and was composed of nine members of Parliament representing all the parliamentary party groups. It commenced work on 15 January 2010. 14. The PRC examined the SIC report, held 54 meetings and multiple informal working meetings. It received several expert opinions on ministerial liability from professors as well as the former state prosecutor and Ms Sigríður J. Friðjónsdóttir, then deputy state prosecutor. Ms Friðjónsdóttir attended five meetings of the PRC and expressed her opinions on the potential charges against ministers, the penal provisions that might apply, the evidence that could be relevant and the rules and content pertaining to an indictment. She also submitted a draft text for part of an indictment. The PRC further collected original documents relating to the ministers’ duties which were mentioned in the SIC report, inter alia letters, notes, minutes, emails from the Government Offices and the Central Bank of Iceland and minutes from meetings of the consultative group on financial stability and contingency planning. On 18 May 2010 the PRC sent letters to 16 individuals, including the applicant, who had held office as ministers during the period covered by the SIC report, asking them to submit comments and information regarding the report’s conclusions. The committee received replies from 14 individuals, including the applicant who submitted his reply by letter of 7 June 2010. 15. On 11 September 2010 the PRC submitted a proposal for a parliamentary resolution to commence impeachment proceedings against four cabinet members: the three mentioned above (including the applicant) and Ms Ingibjörg Sólrún Gísladóttir, who was the former Minister of Foreign Affairs and the head of the Social Democratic Alliance. The proposal listed six points of alleged negligent behaviour, corresponding to the counts in the eventual indictment issued against the applicant (see paragraph 23 below). The applicant was considered to have been negligent in all six respects, whereas the other three ministers were deemed responsible only in respect of five of the points (excluding what was to become count 1.3 in the applicant’s indictment). The proposal was presented as a whole but Parliament decided to vote on each former minister separately. In a resolution of 28 September 2010, by 33 votes to 30, it approved the PRC’s proposal to commence impeachment proceedings against the applicant. With similar small majorities, the votes concerning the other former ministers led to the conclusion that they should not be indicted. All 15 members of the Left-Green Movement and all three members of The Movement (Hreyfingin) voted in favour of impeachment of each of the four former ministers and all 16 members of the Independence Party voted against the proposal. Six of the nine members of the Progressive Party (Framsóknarflokkurinn) voted in favour of impeachment of all the ministers and three members voted against. As regards the members of the Social Democratic Alliance, one of its 20 members voted in favour of impeachment of each of the ministers and 11 members voted against in respect of all of them. The remaining eight Social Democratic members were the only ones that cast differing votes in regard to the four ministers: the applicant – eight in favour of impeachment; Mr Mathiesen – six; Ms Gísladóttir – four; and Mr Sigurðsson – two. 16. On the same day, 28 September 2010, the applicant designated a lawyer for his defence. On 30 September he was formally notified of the result of the voting in Parliament. The Parliament resolution, containing the exact points of indictment, the PRC’s proposal and an explanatory memorandum with the reasons for the proposal, was made available on the website of the Parliament. 17. On 12 October 2010 Parliament appointed Ms Friðjónsdóttir to prosecute the case on its behalf. It also appointed a parliamentary committee to assist her and to monitor the case. 18. The Court of Impeachment constituted to adjudicate the case was composed, in accordance with section 2 of the Court of Impeachment Act (see paragraph 44 below). Thus, five members of the court were judges of the Supreme Court, one was a judge of the District Court (Héraðsdómur) of Reykjavík, and one was a professor at the Law Faculty of the University of Iceland. The latter member was, on 1 September 2011, appointed as justice of the Supreme Court, but continued to sit on the Court of Impeachment in his original capacity. The remaining eight members of the Court of Impeachment were lay judges appointed by Parliament. 19. Following the applicant’s request by letter of 15 November 2010 the Court of Impeachment, on 30 November 2010, appointed the applicant’s lawyer as his defence counsel. The applicant claims that he and his lawyer had made such a request on several earlier occasions. However, no evidence thereof has been submitted in the present case. 20. According to Parliament’s prosecutor (see paragraph 28 below) she invited, by a letter of 9 December 2010, the applicant’s counsel to make comments or request that further information be collected. It appears that counsel did not make any comments or requests in reply. 21. Following decisions of the Court of Impeachment of 22 March 2011 and the District Court of 24 March 2011, the prosecutor was given access to documents and information, including documents from the SIC database, statements given before the SIC as well as correspondence from the applicant’s former work email. She conducted a research into these documents but did not hear the applicant or any witnesses during her investigation. 22. On 11 April 2011 the applicant’s counsel was provided with a USB memory stick containing the documents which the prosecutor had obtained from the SIC database. 23. On 10 May 2011 the applicant was indicted, in accordance with the Parliamentary resolution of 28 September 2010: “1. 1.1 For having shown serious neglect of his duties as Prime Minister in the face of major danger looming over Icelandic financial institutions and the State Treasury, a danger of which he was or ought to have been aware and would have been able to respond to by initiating measures, legislation, general governmental instructions or governmental decisions on the basis of current law, for the purpose of avoiding foreseeable danger to the fortunes of the State. 1.2 For having failed to take initiative, either by taking measures of his own or by proposing measures to other ministers, to the effect that there would be a comprehensive and professional analysis within the administrative system of the financial risk faced by the State because of the risk of financial crisis. 1.3 For having neglected to ensure that the work and emphasis of a consultative group of the Government of financial stability and preparedness, which was established in 2006, were purposeful and produced the desired results. 1.4 For having neglected to take initiative on active measures on behalf of the State to reduce the size of the Icelandic banking system by, for example, advocating that the banks reduce their balance sheets or that some of them move their headquarters out of Iceland. 1.5 For not having followed up and assured himself that active measures were being taken in order to transfer Landsbanki Íslands hf.’s Icesave accounts in Britain to a subsidiary, and then to look for ways to enable this to happen with the active involvement of the State. The above-specified conduct is deemed subject to section 10(b), cf. section 11, of Act no. 4/1963 [on Ministerial Responsibility], and, alternatively, section 141 of the General Penal Code, no. 19/1940. 2. For having, during the above-mentioned period [February 2008 – October 2008] failed to implement what is directed in Article 17 of the Constitution of the Republic on the duty to hold ministerial meetings on important government matters. During this period there was little discussion at ministerial meetings of the imminent danger; there was no formal discussion of it at ministerial meetings, and nothing was recorded about these matters at the meetings. There was nevertheless specific reason to do so, especially after the meeting on 7 February 2008 between him, Ingibjörg Sólrún Gísladóttur, Árni M. Mathiesen and the Chairman of the Board of Governors of the Central Bank of Iceland; after his and Ingibjörg Sólrún Gísladóttir’s meeting on 1 April 2008 with the Board of Governors of the Central Bank of Iceland; and following a declaration to the Swedish, Danish and Norwegian Central Banks, which was signed on 15 May 2008. The Prime Minister did not initiate a formal ministerial meeting on the situation nor did he provide the Government with a separate report on the problem of the banks or its possible effect on the Icelandic State. This is deemed to fall under section 8(c), cf. section 11, of Act no. 4/1963, and, alternatively, section 141 of the General Penal Code, no. 19/1940.” 24. Also on 10 May 2011 an amendment to the Court of Impeachment Act (Lög um landsdóm, no. 3/1963) entered into force, according to which the judges “who hold seat on [the court] when Parliament has decided to impeach a minister, and their substitutes, shall complete the case although their term has expired”. According to the bill introducing the amendment, this was to avoid disruption of a judge’s examination of an ongoing case. As a consequence, the six-year term of office of the court’s eight lay judges, who had been appointed by Parliament on 11 May 2005, was extended until the conclusion of the proceedings against the applicant. 25. The case was filed by the prosecution with the Court of Impeachment on 7 June 2011. The prosecution argued, inter alia, in respect of count 2 of the indictment, that the matter of the banking system and the risk of financial crisis had been important government matters and could hardly have been more important. Storm clouds had been gathering since before the beginning of the period to which the indictment related and the applicant had known or ought to have known where things were headed. Thus, this matter should have been discussed at ministerial meetings as prescribed by Article 17 of the Constitution which should be interpreted according to its words (see paragraph 42 below). The prosecution objected to the applicant’s argument that a constitutional custom had developed to the effect that only matters under Article 16 of the Constitution should be discussed in ministerial meetings under Article 17, and even if such custom existed, it could not override a clear provision of the Constitution. Furthermore, a breach against Article 17 had substantive consequences since, if cabinet meetings were not convened on urgent problems, the opportunity to respond clearly would be lessened. It had been apparent that important government matters had not been discussed by the cabinet and the knowledge that the defendant had demonstrably possessed had not been reported to the ministers. The applicant’s violation according to count 2 of the indictment was a conduct offence and punishable irrespective of the consequences or risks attributable to the conduct. 26. The applicant challenged the impartiality and independence of the eight judges appointed by Parliament, mainly on the ground that Parliament had extended their term by having enacted the above-mentioned legislation. By its ruling on 10 June 2011, the Court of Impeachment rejected the petition, finding that the legislator had pursued a legitimate aim and that the measure had been proportionate vis-à-vis the applicant. 27. On 5 September 2011 the applicant lodged a request to have the case dismissed, relying, among other things, on Article 6 of the Convention. He claimed that the investigation in the case had been manifestly defective, inter alia as the investigation conducted by the SIC had not been criminal in nature, the SIC having no such mandate, and as no real investigative measures had been undertaken by the PRC or the prosecutor. He had not been questioned or invited to respond to the accusations, neither before Parliament’s resolution nor before the prosecutor issued her indictment. He also challenged the impartiality of the prosecutor due to her involvement in Parliament’s preparation of the decision to indict him, during which she had been repeatedly consulted by the PRC and had allegedly expressed her opinion on his potential responsibility under the Ministerial Accountability Act. The applicant further maintained that his chance of preparing a proper defence was compromised as the counts of the indictment were undefined and only described in general terms his alleged criminal conduct and the criminal provisions under which that conduct was subsumed were unclear and discretionary. Also the rules governing the impeachment proceedings and the penal provisions of the Ministerial Accountability Act and other invoked legislation were, in his view, so unclear that due process could not be ensured. Finally, he asserted that the decision by Parliament to bring proceedings against him alone had been taken on purely arbitrary and political grounds and thus did not treat him equally with other ministers originally subject to the investigation in the case. 28. The prosecutor contested the applicant’s request, maintaining, inter alia¸ that, in view of the thorough gathering of material by the SIC, there had been no need for an independent collection of evidence by the PRC, which was supposed to base its work on the report of the SIC. Moreover, the applicant’s defence counsel had not asked that the applicant be heard during the investigative stage, although such an opportunity was provided by section 16(2) of the Court of Impeachment Act and the prosecutor had invited him, by a letter of 9 December 2010, to make comments or request further information to be collected. With respect to the applicant’s challenge against her impartiality, the prosecutor objected to the assertion that she had expressed an opinion on the applicant’s potential criminal liability. She further claimed that the counts of the indictment were not unclear or worded in general terms, pointing out that further specifications in regard to several counts were found in the explanatory memorandum accompanying Parliament’s resolution and that, additionally, count 2 of the indictment provided explanatory examples of events that had given reason to discuss the imminent financial crisis at ministerial meetings. The prosecutor also disagreed with the applicant’s contention that the applicable procedural or criminal provisions were unclear. As for the alleged unequal treatment by Parliament when deciding to charge the applicant but not the other ministers, she stated that the majority of its members, bound only by their own conviction, had found that the facts of the case up until that point were likely to lead to a conviction of the applicant but not the others. 29. By a decision of 3 October 2011 the Court of Impeachment upheld the applicant’s motion for dismissal in so far as it concerned counts 1.1 and 1.2 of the indictment, but rejected the remainder of the request. It noted that Parliament held the authority to bring cases against a minister and that its review committee, the PRC, had obtained, inter alia, various evidence referred to in the SIC report and written statements from several ministers, including the applicant, before finding that there was enough evidence for a parliamentary resolution to commence proceedings against the applicant. Parliament’s handling of the matter had been in compliance with relevant legislation and its resolution to commence impeachment proceedings had not prevented the appointed prosecutor from investigating the case further and gathering new evidence. Indeed, the prosecutor had continued the investigation of the case before issuing the indictment against the applicant. Moreover, judgment in a criminal case should be based on evidence presented in court, including the testimonies of witnesses. If there were insufficient support for the charges against the defendant, he would be acquitted of the charges, a more favourable outcome for him than a dismissal, which could lead to possible shortcomings being remedied and a new indictment being issued. As regards the involvement of the prosecutor, the court referred to the general rules of pre-trial investigation under the Criminal Procedure Act (Lög um meðferð sakamála, no. 88/2008), according to which he or she is authorised to take various measures, including the collection of information and the making of decisions affecting the position of a suspect. Such intervention by the prosecutor did not affect his or her eligibility to handle the case later, such as by deciding whether to indict and bring the case to court. In line with this, the advice given to the PRC by the person subsequently appointed prosecutor could not lead to her disqualification in the case, even less so since Parliament held the authority to decide whether to indict and to determine the content of the indictment. With respect to the content of the indictment, the court found that it generally complied with the form and structure prescribed by the Criminal Procedure Act and that it did not show such shortcomings that the entire case should be dismissed. As for counts 1.3, 1.4, 1.5 and 2, the court considered that there was no doubt as to what conduct was the subject of the indictment and how it was deemed punishable by law. However, the conduct imputed to the applicant in counts 1.1 and 1.2 had not been specified with sufficient clarity and these charges were accordingly dismissed. The court went on to find that the procedure in impeachment proceedings was unambiguous and foreseeable, the Court of Impeachment Act containing a few special provisions and the proceedings being, in all other respects, governed by the rules of general application laid down in the Criminal Procedure Act. Furthermore, the penal provisions invoked by the prosecution were worded in such a way that they could be interpreted on the basis of objective criteria and were clear enough to enable a proper defence. Finally, in regard to the fact that Parliament had voted to bring proceedings exclusively against the applicant, the court noted that, under the Constitution, members of Parliament were bound only by their own conviction. Moreover, the resolution adopted by Parliament, as the holder of authority to decide on prosecution in impeachment cases, was not subject to review by the court in such a manner as might lead to the dismissal of the case. 30. Subsequently, the applicant submitted written pleadings to the Court of Impeachment. 31. The public hearing in the case commenced on 5 March 2012. It started with the formal testimony of the applicant, the first statement he gave since the charges had been brought against him. During the hearing, which lasted until 16 March, written evidence was produced and 40 witnesses gave evidence before the court. The applicant attended all sessions. On 13 March the applicant testified for a second time. Oral pleadings by the lawyers for the applicant and the prosecution were made on 15 and 16 March. 32. By a judgment of 23 April 2012 the Court of Impeachment unanimously acquitted the applicant of counts 1.3, 1.4 and 1.5 of the indictment, finding that the prosecution had not established that the actions which he was accused of having neglected could or would have averted the danger facing the Icelandic financial institutions and the State treasury or reduced it considerably. As for certain negligence imputed to him by the prosecution, the court considered that it related to actions that were not among his duties. However, by nine votes to six, the majority consisting of five professional judges and four lay judges, the Court of Impeachment found the applicant guilty in respect of count 2. The court considered it established that major danger had been threatening the Icelandic commercial banks and the State Treasury as early as February 2008 and that the applicant had to have been aware of that danger. However, basing itself on the minutes of 52 ministerial meetings held between 1 February and 6 October 2008 and the testimony of the applicant and the witnesses, in particular five ministers who had held a seat in the government in 2008, the court found that this matter had not been discussed during the meetings, apart from the last four meetings, on 30 September and on 3, 5 and 6 October. It therefore concluded that the applicant had failed to comply with the duty set out in Article 17 of the Constitution to hold ministerial meetings on “important government matters”. 33. As to the criminal liability under the Ministerial Accountability Act, the court generally stated: “The accountability provided for in Article 14 of the Constitution and Article 1 of [the Ministerial Accountability Act] represents an addition to the parliamentary and political responsibility borne by a minister towards Parliament in respect of the discharge of his duties of office on the basis of parliamentary rule. Even though parliamentary responsibility places great restraint on a minister, the Constitution assumes that a breach in office on his part may entail criminal liability, as further laid down by law. When comparing these two kinds of responsibility it must be concluded that only serious wrongs on the part of the minister committed in office would lead to his punishment. Accordingly, the sole matter of his conduct being worthy of criticism or blame cannot suffice for invoking the legal accountability in question, so that more grave matters must be in issue. It is then determined by an assessment of all facts whether certain conduct is considered serious enough to be subject to punishment, either pursuant to [the Ministerial Accountability Act] or the general penal code, cf. section 1(2) of the aforementioned Act.” 34. The court went on to make the following remarks about section 8(c) of the Ministerial Accountability Act: “According to section 8(c) of [the Act] it is punishable if a minister, apart from the incidents described in points (a) and (b) of the section, ‘by other means personally implements, orders the implementation or allows the implementation of any measure that contravenes the Constitution of the Republic, or fails to implement any measure prescribed therein, or causes neglect of such implementation’. The latter part of this provision describes an offence of direct omission, which means that the very fact of a minister neglecting to implement any matter ordered by the Constitution or causing the neglect of its implementation will be a punishable offence irrespective of the consequences or risks attributable to such an omission. As noted in the explanatory notes to the bill that became [the Act], section 8(c) of the Act contains a provision of general import which applies to all breaches of the Constitution other than those specifically made punishable in other points of the section. Accordingly, it falls within the conduct description of this provision to fail to comply with the duty, provided for in Article 17 of the Constitution, to hold ministerial meetings ‘to discuss new legislative proposals and important government matters’.” 35. In regard to the applicant’s motion to have the whole case dismissed due to the alleged lack of clarity of section 8(c) of the Ministerial Accountability Act, the Court of Impeachment considered that the words “important government matters” in Article 17 of the Constitution, to which section 8(c) referred, could easily be understood by a reasonable man in the office held by the applicant and that the provisions contained predictable and reasonable criteria regarding the minister’s discharge of official duties. 36. The applicant had also maintained that it was clear from the origin and history of Article 17 of the Constitution that important government matters that should be discussed in ministerial meetings according to that provision were only matters that should have been submitted to the President in the State Council according to Article 16 of the Constitution. The court examined the history of the two constitutional articles, in particular the difference in language between “important government measures” (mikilvægar stjórnarráðstafanir) in Article 16 and “important government matters” (mikilvæg stjórnarmálefni) in Article 17, finding that the latter term was literally more extensive. It concluded as follows: “... These two features, that the constitutional provisions on ministerial meetings has remained substantially unchanged despite the change in Iceland’s constitutional position in 1944 and that a distinction was made between matters to be discussed at ministerial meetings, on the one hand, and those to be submitted to the State Council, on the other, in the first Act on the Government Offices of Iceland, unequivocally support a literal interpretation of the instruction under Article 17 of the Constitution. In accordance with a principle of statutory interpretation it will here be found proper to follow the clear language of the provision, which prior preparatory works cannot refute. Accordingly, the Prime Minister, who heads the cabinet and leads ministerial meetings, has a duty to ensure that important government matters of which he is aware are discussed and, where applicable, addressed in those meetings, as provided for in Article 17 of the Constitution. ...” 37. The court then noted that it was not at the Prime Minister’s sole discretion to determine when a matter was of such nature that it should be raised at a ministerial meeting. Rather, of primary importance was to what extent it concerned the interests of the state and the general population. The court concluded that the danger facing the Icelandic bank system and thus the welfare of the state had been of gigantic and unprecedented proportions and was, due to the great public interest at stake, without a doubt an important government matter within the meaning of Article 17 of the Constitution. 38. The applicant had asserted that cabinet meetings were not a common platform for ministers to discuss matters with other ministers and that Article 17 of the Constitution did not prevent individual ministers from discussing certain matters among themselves without presenting them at the meetings. Furthermore, the minutes of the cabinet meetings did not exhaustively record the discussions, as they contained only a listing of the items placed on the agenda. Frequently, other subjects than those listed had been discussed, inter alia under the item “other issues”. Statements by former ministers before the court had clearly showed that the banking system had been repeatedly discussed at the meetings held during the period to which the indictment referred. In this respect, the court noted that, under the Constitution, cabinet meetings was the forum for political consultation between ministers on important government matters. Whether or not it had been customary to raise comparable issues at ministerial meetings or in informal consultations between the chairmen of governing coalition parties, such practices could not absolve the Prime Minister from the duty laid down in Article 17. 39. As regards the specific conduct imputed to the applicant, the court stated, inter alia, the following: “According to that which has been related above, it is considered proved beyond doubt in the case that the great danger facing the Icelandic banks and thus the welfare of the State was not discussed at cabinet meetings in the period from February 2008 until the end of September the same year. As stated above, it must also be considered a fact in the resolution of the case that various issues that were up for discussion in the consultative group on financial stability and contingency planning, and which there was due reason to discuss in the cabinet, were not dealt with at those meetings. That was all the more urgent as the defendant did not convey important information which he possessed about the affairs of the banks to the Minister for Business Affairs, to whom they pertained. Last but not least it is proven that those two aforesaid documents that were forwarded to foreign authorities [a declaration of 16 May 2008 signed by the defendant, the ministers of foreign affairs and finance and the board of governors of the Central Bank of Iceland to the central banks of Sweden, Denmark and Norway on the completion of currency swap agreements and a letter of 20 August 2008 by the Ministry of Business Affairs to the UK Treasury providing answers to certain questions posed by the latter] and contained, on the one hand, obligations, and, on the other, promises, in the name of the government, were not discussed at its meetings. The defendant and various other persons who have testified before the Court have emphasised that the situation in financial markets was so sensitive during the period related to the case that the slightest rumour that the Icelandic banks might encounter a liquidity crisis could have accelerated and even caused their collapse. For this reason it had been very important to discuss the danger facing the banking system within a small group, in full confidentiality. Although those views may have been fully justified, especially while the difficulties of the banks were still known by few, it is to no avail for the defendant to allege that for this reason he was unable to give an account of the issues in question at cabinet meetings. The framework of those meetings is not least designed so that ministers and supreme holders of executive power can consult one another and discuss important issues confidentially and behind closed doors, with the ministers having a compelling duty ... not to disclose points raised there concerning such confidential matters. The defendant’s conduct of failing to comply with Article 17 of the Constitution where it prescribes that ministerial meetings should be held on important government matters ... not only led to a breach against a procedural rule but also contributed to the fact that a political policy to address the huge problem of which the defendant must have been aware in February 2008 was not formulated at the level of the cabinet of ministers. If such a policy had been formulated and then implemented in an organised manner, including action by the Central Bank of Iceland and the Financial Supervisory Authority, it may be argued that it would have been possible to lessen the harm caused by the collapse of the banks in the beginning of October 2008. It is also likely that the authorities would then have been better prepared for taking a position towards the request of Glitnir Bank hf. for financial assistance at the end of September 2008, so that the problems of that bank might have been resolved in a more deliberate manner than was the case. It may be inferred from the defendant’s testimony before the court that he closely followed the progress of the matters in question. ... [I]t must be regarded as gross carelessness on the part of the defendant to have failed to take up the issues related above for discussion at cabinet meetings, as he was aware or at least should have been aware that they were of such importance, and of such nature, as an integral part of the government’s economic policy, that he had a duty to do so.” 40. The applicant was consequently convicted of a violation of section 8(c) of the Ministerial Accountability Act, for having by gross negligence failed to hold ministerial meetings on important government matters as prescribed in Article 17 of the Constitution. He was not sentenced to any punishment and the Icelandic State was ordered to bear all legal costs, including fees to the applicant’s counsel. Not subject to an appeal, the judgment was final. 41. The minority’s opinion was to acquit the applicant of all charges. In regard to count 2 of the indictment, the minority referred to the requirement of foreseeability and clarity and to the rule of interpretation that a criminal provision should be narrowly construed when there is doubt as to its application. It expressed the following view on the history of Articles 16 and 17 of the Constitution: “According to the interpretation of Article 17 of the Constitution related above, the duty to hold ministerial meetings only extended to meetings on matters to be submitted to the State Council and matters which individual ministers wished to raise, and the actual practice in respect of the functions of ministerial meetings has been in keeping with this ever since. In addition, the witness statements by ministers in the [applicant’s] cabinet have indicated that economic issues and the issues of financial undertakings were frequently discussed in cabinet meetings at the outset of the meeting or under the agenda item of other issues, even though this was not recorded in the minutes. In this case, the interpretation of Article 17 of the Constitution is in issue when assessing whether [the applicant] became guilty of punishable conduct, and viewpoints on good administrative practices which have gained more prominence of late cannot be a determining factor in this context. It should also be noted that a minister will not be held criminally liable under [the Ministerial Accountability Act] unless serious errors have been committed while in office, which cannot apply to the charges according to this count of the indictment, as related above in the course of interpretation of Article 17 of the Constitution. Taking this into consideration, we are of the opinion that the [applicant] should be acquitted of a violation of the [Act].” | 0 |
test | 001-159378 | ENG | RUS | CHAMBER | 2,015 | CASE OF LYKOVA v. RUSSIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1964 and lives in Voronezh (Voronezh Region). 6. On 9 September 2009, between 10 and 11 a.m., the applicant’s son, Mr Sergey Lykov, and his friend P. were stopped by police officers at a bus stop in Voronezh. They were given no reasons. Sergey Lykov and P. were then taken to the premises of department no. 6 of the Voronezh Region criminal police (оперативно-розыскная часть № 6 криминальной милиции главного управления внутренних дел по Воронежской области) (hereafter, “the police station”). 7. Inside that police station, a police officer, S., ordered the other police officers present to undress Mr Lykov and P. and to bind their hands and feet with adhesive tape. S. began punching Mr Lykov and P. on the head, urging them to confess to all the thefts that they had committed. Faced with their silence, S. and another police officer began to hit each of their heads violently against the ground, as well as against a cupboard and a table. After 15 minutes they stopped striking them and S. ordered one of the police officers to “give [P.] a fashionable haircut” by cutting locks of his hair with a knife. S. and other police officers then placed plastic bags around the heads of Mr Lykov and P. to suffocate them. Faced with the repeated nature of these actions, Sergey Lykov, who was exhausted, asked S. to tell him what he wanted to know. S. again asked him to confess to the alleged thefts. Mr Lykov then admitted that they had burgled an apartment in 2007. S. ordered the police officers to take Sergey Lykov to another room. 8. The police officers continued to torture P. with electricity. A few minutes later the police officer returned Sergey Lykov to the office. According to P., Sergey Lykov was “in a bad way”, although he had no obvious physical injuries. P. was taken to another office, where he began writing a confession. While he was writing, he heard Sergey Lykov betin to cry out. According to P., his cries lasted a good hour. Shortly afterwards a police officer came into the room where P. was being held and told him that they were going to the scene of the 2007 burglary. P. stated that Sergey Lykov was not with them during this visit and that he had not seen him again afterwards. P. was finally taken to a temporary detention centre, where he was examined by a doctor who noted several physical injuries (bruises and grazing on his arm). P. learned later that Mr Lykov had thrown himself out of a window. 9. On 7 September 2009 a decision (постановление о приводе) was issued ordering P.’s arrest for the purpose of questioning him as a witness. 10. On 9 September 2009 police officers found P. in a street in Voronezh, in the company of Sergey Lykov. They asked the two friends to accompany them to the police station. Mr Lykov was invited for the purpose, in particular, of “provid[ing] useful information”, in line with section 11 § 4 of the Police Act of 18 April 1991, then in force. Sergey Lykov accepted the invitation of his own free will. 11. After discussions with police officer T. at the police station, Sergey Lykov decided to confess to a theft purportedly committed on 4 September 2009, and provided a written statement to that effect. T. informed Mr Lykov of his constitutional right not to incriminate himself. 12. At 6.50 p.m., after having finished writing his confession, Sergey Lykov suddenly threw himself out of the open window of T.’s office, which was on the fifth floor. 13. At 7.50 p.m. Mr Lykov arrived at hospital with an emergency medical assistance team. He died at 1.10 a.m. on 10 September 2009. 14. Sergey Lykov’s cousin I., who had had no news of him, carried out a search and on 10 September 2009 she finally found his corpse in the Voronezh morgue. After examining the body, I. noted that it had signs of numerous physical injuries, in particular a haematoma above the left eyebrow, facial injuries and haematomas on the wrists. 15. On 13 September 2009 I. wrote to the Prosecutor General of Russia, requesting that an investigation be opened into the death of Sergey Lykov. She informed the Prosecutor that her cousin had been arrested on 9 September 2009 while he was with his friend P. 16. On 22 September 2009 police officer B. from the Tsentralny district police station in Voronezh issued a decision refusing to open a criminal investigation into the supposed theft, on the street, of a mobile telephone, to which Sergey Lykov had confessed: B. noted that the avowed offence of theft had never been recorded in the registers of complaints by victims of offences, which were held by the police. 17. One hour after the incident (at 8 p.m.), an investigator, Ya., from the Voronezh Leninskiy district Investigation Committee arrived on the scene and examined the premises, in particular Office no. 55, from where Mr Lykov had fallen. The investigator seized from the scene a gas mask and a telephone, as well as the sheet of paper with Sergey Lykov’s written confession. She indicated that she had not found traces of blood in the office, but only on the grass area below the window. 18. By a decision of 21 September 2009, investigator L. from the same department refused to open a criminal investigation into the victim’s death. Referring to Article 24 § 1 (1) of the Russian Code of Criminal Procedure, he concluded that no offence had been committed. 19. The investigator summarised the explanations provided by police officer T., who stated that: – at 3 p.m. on 9 September 2009 Sergey Lykov and his friend P. had been taken to the police station by police officers S. and F.; the second individual (P.) was being sought on suspicion of theft; – during an interview between T. and Mr Lykov, the latter had confessed voluntarily to a theft. Although he had started writing a confession, Mr Lykov suddenly stood up and climbed onto a chair, then onto a table which was beside the open window, and then finally jumped from this window; – T. had rushed to prevent him from jumping, but he was too late; – no police officer had struck Sergey Lykov or had forced him to confess to the offence. According to T., Sergey Lykov had no physical injuries; – during the interview Mr Lykov had been calm, but he complained to T. that his life was difficult, since he had to care for his ill mother. 20. The investigator also summarised the explanation provided by police officer Sa., who stated that: – at 2 p.m on 9 September 2009 while on patrol in the city, he and two other police officers had seen two individuals on a scooter. Since they had information that an individual suspected of theft was moving about on a scooter, they had stopped the persons concerned for an identity check. They had invited Sergey Lykov and P. to accompany them to the police station and they had agreed; – on arrival at the police station, Mr Lykov and P. had been separated. Sa. and F. had interviewed P., while T. had had a conversation with Mr Lykov; – on entering T.’s office at a later point, Sa. was able to note that Sergey Lykov was not handcuffed and had not been struck. He had heard Mr Lykov confess to the theft of a mobile telephone; – he had not heard Sergey Lykov complain of ill-treatment of any kind; – later he had learnt that Mr Lykov had attempted to take his own life. 21. The investigator also noted that in response to his questions, police officer S. had denied any involvement in ill-treatment of Sergey Lykov. 22. At the same time, the investigator noted the statements made by P., to the effect that: – between noon and 1 p.m. on 9 September 2009 he and Sergey Lykov had been in the city centre when police officers approached, introduced themselves and asked him [and Sergey Lykov] them to accompany them to the police station. They had agreed; – at the police station, he and Sergey Lykov had been separated and placed in different offices. Shortly afterwards, when passing in the corridor, he had seen Sergey Lykov sitting at a table writing something. He had not seen Sergey Lykov being struck, had not heard him crying out, and had not noticed any physical injury on his person; – he had heard Sergey Lykov complain of heart pains, but never refer to an intention to commit suicide. 23. The investigator took note of the statements by the applicant, and also of close relatives of the victim, to the effect that he had never expressed thoughts of suicide. 24. The investigator noted the presence in the case file of the written confession drawn up by Mr Lykov shortly before his death. 25. Relying on the information communicated by the hospital in which Mr Lykov had been treated after his fall, the investigator established that death had resulted from Mr Lykov’s fall from the fifth floor. No injuries indicating kicks or punches, or the use of handcuffs, had been found on the corpse. 26. Lastly, the investigator noted the contents of the report from the on-site inspection conducted on 9 September 2009 (see paragraph 17 above). 27. On 28 June 2010 the decision of 21 September 2009 was set aside by a hierarchically superior civil servant, who ordered an additional investigation, noting, in particular, that it was necessary to: – find witnesses who could confirm that Sergey Lykov had suicidal thoughts; – verify that the police officers who had taken Sergey Lykov to the police station had acted in accordance with the law; – consider whether the police officers who had not ensured the victim’s safety inside the police station bore any criminal liability. 28. In the meantime, on 27 October 2009 an autopsy of the body was carried out on the orders of investigator L. and a forensic report was drawn up. In that document, the forensic medical expert noted that death had resulted from multiple fractures to the head, chest and spine, and to the base and dome of the skull. According to the expert, the location of the injuries identified, and the preponderance of internal over external injuries, led to the conclusion that those injuries had originated in [Mr Lykov’s] fall from the fifth floor. The expert concluded that there was no cause-and-effect relationship between the other injuries (hematomas and scratches on the trunk and the lower and upper limbs, namely a hematoma in the fold of the right elbow measuring 4 x 3 cm; a scratch on the right forearm measuring 6 x 0.7 cm; a 4.5 x 2 cm hematoma on the right carpus; a hematoma on the left shoulder measuring 18 x 14 cm, on which there were scratches of 5 x 2.5 cm; a hematoma on the left knee measuring 7 x 6 cm, on which there was a scratch of 1.5 x 1 cm; and an oval-shaped scratch on the left ankle measuring 2 x 1.5 cm) and the death. As to the question of whether there were traces of a struggle or self-defence, the doctor indicated that it was generally accepted in forensic medicine that injuries to the arms and wrists were to be classified in that way. Thus, he noted the presence of a bruise on the right carpus and a scratch on the right forearm. He added that he was unable to ascertain how those injuries had been sustained. Lastly, the doctor noted that the corpse had been deposited in the morgue unclothed. 29. By a decision of 8 July 2010, investigator Ko. from the same department again refused to open a criminal investigation. In his reasoning, he quoted from the statements given by police officers T., Sa. and S., by witness P., and also by the applicant and the deceased’s close relatives, already cited in the decision of 21 September 2009 (see paragraph 18 above). 30. The investigator also questioned certain individuals who had got to know Sergey Lykov in a café where they drank alcoholic beverages together. Those persons explained that when Sergey Lykov drank alcohol he became talkative and that, in this intoxicated state, he complained about a lack of money and difficulties with his invalid mother. He had also confided to his companions that he had committed thefts and that, were he arrested, he “would harm himself”. 31. The investigator also noted a directive, classified as secret, for the attention of police officers. According to that directive, the police were not personally responsible for the life and health of individuals who had freely consented to attend a police station for an interview, “except in the event of violation of the rights and freedoms of citizens proclaimed in the Russian Constitution”. Regard being had to that directive and the facts noted, the investigator concluded that officer T. could not be held responsible for the offence of negligence. 32. The investigator concluded that Sergey Lykov’s death had been the result of a voluntary act on the latter’s part. In consequence, the investigator refused to open a criminal investigation against the police officers F., B., Sa. and T. for an abuse of power, on the grounds, firstly, that Sergey Lykov’s arrest had not been illegal, and, secondly, that the police officers had not ill-treated him. He also concluded that there were no grounds for prosecuting the police officers for homicide, assault or incitement to suicide, given that Sergey Lykov’s death “had not been violent”. 33. On 11 February 2011 the applicant lodged a judicial appeal against that decision. She complained, inter alia, that her son had been placed in detention without this fact being properly recorded, and that, in consequence, her son had been deprived of legal assistance. Equally, she submitted that the investigation carried out had been incomplete and focused on a hypothesis that was favourable to the police officers. She criticised the investigative authorities for failing to conduct a forensic examination of the gas mask seized in the police station in order to obtain genetic material, including perhaps that of her son. According to the applicant, a handwriting expert’s report should also have been commissioned in order to determine her son’s psychological state when he wrote the confession. Further, referring to the autopsy report, which stated that the corpse had injuries that could be interpreted as traces of a struggle or self-defence, the applicant accused the authorities of failing to explain the origin of those injuries, and the cause of her son’s death. 34. On 18 April 2011 the Leninskiy District Court of Voronezh upheld the contested decision. In its reasoning, the court reiterated the arguments set out in the investigator’s decision and considered that the investigation had been complete and thorough. In response to the applicant’s arguments, the court expressed the opinion that a handwriting analysis was unnecessary, since the deceased’s family had confirmed the handwriting’s authenticity. Equally, a DNA examination of samples from the gas mask was unnecessary, since Sergey Lykov’s death had not resulted from suffocation. Thus, the court concluded that there was no evidence in support of the idea that the deceased had been subjected to ill-treatment by the police officers or that he had been arrested or detained unlawfully. 35. On 11 August 2011 the Voronezh Regional Court upheld the decision, on appeal, for the same reasons. 36. On 11 October 2012 the applicant’s lawyer sent a letter to the head of the Investigation Committee of Russia, asking him to open a new criminal investigation into the death of Mr Lykov and to entrust this investigation to the department for investigations into offences committed by State employees of the armed forces, a department that was part of the Investigation Committee of Russia in the Tsentralny federal constituency. The lawyer expressed the fear that if the requested investigation were to be carried out by investigators from the Voronezh regional department of the Investigation Committee, that investigation would be ineffective. She argued that, without having available to them locally-based agents to gather the necessary information, the investigators from the latter department would have no choice but to use officers from the Ministry of the Interior, among whom might be those involved in the victim’s death. 37. On 14 November 2012 the Voronezh regional department of the Investigation Committee dismissed that request, considering that the decision of 8 July 2010 had been in accordance with the law and that there were no grounds for revoking it and opening a criminal investigation. 38. On 10 September 2009, the day after his arrest, P. was taken to a temporary detention centre (“IVS”). During his admission, a doctor’s assistant noted the following physical injuries: a bruise on the left shoulder-blade, scratches on the elbows and knees, and a bruise on the right ear. The medical assistant drew up a report recording the injuries and noting that they were the result of a road-traffic accident that had occurred on 9 September 2009. The medical examination was carried out in the presence of police officers who had participated in the beating. According to P., it was the police officers who provided the medical assistant with the road-accident version of events, while he himself, for fear of reprisals, had been obliged to confirm it. 39. On 11 September 2009 P. was transferred to remand prison no. 1 in Voronezh. On admission, he was examined by a doctor who found the same injuries as those observed in the IVS. 40. On an unspecified date in September 2009 P. lodged a complaint about the alleged ill-treatment at the police station. According to P., this complaint led to him being taken on the following day to the police station, where he was beating in reprisal. Then – again according to his submissions –, P. withdrew his complaint in fear for his life when investigator Ya. came to the remand prison to question him about the circumstances of the ill-treatment. According to P., in response to his question about possible consequences for the police officers involved in beating Mr Lykov and himself, investigator Ya. replied that, in any event, there had been none. 41. On 5 October 2009 inspector Ya. from the Voronezh regional department of the Investigation Committee issued a decision refusing to open a criminal investigation. She recounted the explanation provided by police officer Sa., who had denied any ill-treatment, and, noting P.’s withdrawal of his complaint, concluded that no ill-treatment had occurred. 42. In the meantime, the criminal investigation against P. continued, and resulted in an examination on the merits by the Voronezh regional Court. At the public hearing on 1 February 2011 P. made a statement. He withdrew the account given by him in the context of the investigation into the death of Sergey Lykov. P. described the events of 9 September 2009 as they are set out in paragraphs 6-8 of the present judgment. He added that police officer S. had threatened him if he were to withdraw his confession to the thefts or make statements about the events surrounding the arrest and death of Mr Lykov. He added that S. had beaten him again prior to the court hearing concerning his placement in pre-trial detention, in order to prevent him lodging a complaint before the judge. He also alleged that he had been subjected to unprovoked attacks by the administration of the remand prison in which he was detained. P. asked to be placed under protection in his capacity as a witness of the ill-treatment inflicted on Sergey Lykov by police officers. He also asked that criminal proceedings be brought against police officer S. for abuse of power and for the murder of Mr Lykov. P. suggested that the criminal investigation into the death be reopened. 43. The judge ordered that P.’s written statement be included in the case file. With regard to P.’s requests in respect of S. and Mr Lykov, the judge replied that the latter’s death was unrelated to the ongoing trial; as for S., he was not a party to the trial proceedings. In consequence, she dismissed those requests. 44. At one of the subsequent hearings P. complained that, after the above statement, the remand prison’s administration threatened him. 45. On 30 June 2011 the prosecutor for the Leninskiy district of Voronezh set aside the decision refusing to open a criminal investigation in respect of P.’s supposed torturers. The prosecutor ordered an additional investigation. The Court has not been informed of the outcome of this investigation. 46. After serving his sentence, P. was released. He submits that he has received several threats in connection with the present case. For fear of reprisals, he moved to Sweden. In his letter of 20 April 2014 to the Investigation Committee, sent from abroad, P. offered to act as a witness, but he was never questioned. 47. On 23 December 2013 a hierarchically superior State employee in the Voronezh regional department of the Investigation Committee set aside the decision of 8 July 2010, noting that the department had received new information concerning the death of Sergey Lykov from the European Court of Human Rights. He ordered an additional investigation, in particular so that P. could be questioned and his allegations of ill-treatment verified. 48. On 10 January 2014 the deputy head of the Voronezh regional department of the Investigation Committee ordered the opening of a criminal investigation within the meaning of Article 146 of the Code of Criminal Procedure. In his reasoning, he noted that Ms Lykova’s application, which was being examined by the European Court of Human Rights, contained elements suggesting that Mr Lykov had been subjected to ill-treatment by the police officers. 49. On 16 January 2014 investigator L. from the Investigation Committee ordered a second forensic medical report, to answer, inter alia, the following questions: whether Mr Lykov’s body showed injuries and, if so, where; if the body showed injuries resulting from a struggle, ill-treatment, the use of handcuffs or restraint of the upper or lower limbs using adhesive tape; and whether there were signs of electrocution. The Government have not indicated whether that medical report was drawn up. In any event, no expert report was added to their observations. 50. The investigator questioned police officers Sa. and F.; the first reiterated the explanation he had provided in 2009 (see paragraph 17 above), and the second gave similar explanations. The investigator also questioned a certain V., who allegedly stated that he occasionally drank alcoholic beverages in Sergey Lykov’s company and indicated that the latter was a drug addict who committed thefts to obtain money, and that he had spoken to him about his difficulties with his invalid mother. According to V., Sergey had confided in him that, if he were arrested, he “would harm himself”. 51. The investigator questioned the deceased’s grandmother and cousin, who stated that, to their knowledge, Sergey did not take drugs, did not abuse alcohol, and had never expressed thoughts of suicide. 52. On 13 January 2014 the investigator issued a decision granting the applicant victim status. 53. On 27 October 2009, at the close of an internal investigation into the police officers’ conduct, the Internal Security Service of the Voronezh regional department drew up a report; its conclusions can be summarised as follows: referring to the decision of 21 September 2009 (see paragraph 17 above), the regional department considered that Sergey Lykov had indeed taken his own life and that no fault on the part of the police officers had been established. At the same time, the Service described as a lack of professionalism the fact that police officer T. had not taken sufficient care in controlling Mr Lykov’s conduct, a shortcoming that had enabled the latter individual to throw himself from the window. | 1 |
test | 001-145233 | ENG | AUT | CHAMBER | 2,014 | CASE OF MOHAMMADI v. AUSTRIA | 3 | No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Hungary) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 6. The applicant was born in 1995 and currently lives in Rein. 7. He entered Austria on 20 October 2011 and lodged an asylum application. It remained undisputed by the Austrian authorities that at that time he was still a minor, even though his exact date of birth is unknown. He was not accompanied by any family members, nor were any of his relatives present in another member State of the European Union. 8. The applicant stated that he had left his village in Afghanistan three months earlier, crossed the border to Iran and then the border to Turkey by foot. With the aid of a trafficker he reached Istanbul, where he stayed for three days. Together with a group of other refugees, he crossed into Greece by boat, where he was arrested and processed. He was released shortly after with an order to leave the country. He travelled to Athens, where he stayed for a month. He then left Greece together with two other refugees via the Former Yugoslav Republic of Macedonia and Serbia, from where he crossed the border to Hungary by foot. 9. In Hungary, the applicant was arrested and processed. He claimed that he was forced to lodge an asylum request and placed in an open camp. Allegedly, the Hungarian authorities did not give any consideration to the fact that he was a minor. Because he had never planned to stay in Hungary, but wanted to lodge an asylum application in Austria, he left the camp two or three days later and took a train to Vienna. 10. When the applicant was interviewed by the Austrian authorities on 21 October 2011, he stated that he did not want to return to Hungary. He claimed not to know the status of his asylum proceedings there because he was illiterate. In a second interview on 18 November 2011, he stated that he was arrested and detained for three days in Hungary. He was not given enough to eat and suffered from hunger in detention. He claimed that the conduct of the police towards him was rough. Officers were armed at all times, and he was woken up during the night for interviews. He further stated that he was afraid of being sent back to Serbia. 11. When the applicant was asked why he had left Afghanistan, he stated that his family had sent him away so he could live a safer life. His father had died in Afghanistan six years earlier. His mother lived with the applicant and his three young siblings in the Jaghori district in Ghazni province. The precarious security situation and the lack of access to subsistence and education in the region prompted him to leave the country. 12. On 15 December 2011 the Traiskirchen Federal Asylum Office (Bundesasylamt – hereinafter "the Asylum Office") rejected the applicant’s asylum request and established Hungary’s jurisdiction in this regard in accordance with Article 16 § 1 (c) of Council Regulation (EC) No. 343/2003 ("the Dublin II Regulation"). On 11 January 2012 the Asylum Court (Asylgerichtshof) quashed that decision pursuant to Article 66 § 2 of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz) on the grounds that the facts had not been established exhaustively. It stated that the Asylum Office had failed to update its country information regarding the risk of refoulement of asylumseekers from Hungary to Serbia. Furthermore, the decision had not established the legal framework under which minors could be detained in Hungary and what the conditions of detention were. 13. On 28 February 2012 the Asylum Office again rejected the applicant’s asylum request and ordered his expulsion to Hungary under the Dublin II Regulation. In addition to general information on the situation of asylum-seekers in Hungary, the Asylum Office referred to information obtained from the Austrian Embassy in Hungary dated 25 January and 2 February 2012. According to that information, the detention of minors could not be ordered in Hungary. If a detained refugee claimed to be a minor, an age assessment was ordered and the minor was released if his or her age was confirmed. As regards the evaluation of Serbia by Hungary as a safe third country, the Hungarian authorities stated that they did not have a list of safe third countries and evaluated each case individually. However, in most cases Serbia was considered to be a safe third country. Hungary expelled asylum-seekers to Serbia, if their first asylum proceedings were terminated and there was no obstacle under the non-refoulement rule. A person lodging a subsequent asylum request was not allowed to remain in Hungary. The same applied for Dublin returnees if their first asylum proceedings were terminated. If asylum proceedings were discontinued after an asylum-seeker left Hungary, an asylum request after his or her return under the Dublin regulation was considered a subsequent asylum request. It was further established that appeals against asylum decisions at first instance and during the first proceedings had automatic suspensive effect. However, appeals against decisions in subsequent asylum proceedings did not. It was in any event possible to lodge an appeal against the expulsion order itself. It was then up to the judge’s discretion to award the proceedings suspensive effect. 14. When it came to the personal credibility of the applicant, the Asylum Office stated that it found his allegations of having been detained in Hungary for three days unconvincing, as the country information had shown that the detention of minors could not be ordered in Hungary. It further held that the information had shown that Hungary did not practise refoulement to Serbia. Finally, the Hungarian authorities had assumed jurisdiction over the applicant’s asylum request under Article 16 § 1 (c) of the Dublin II Regulation, which proved that the applicant still had access to asylum proceedings on the merits in Hungary. The Asylum Office concluded that it hence did not consider itself legally obliged to make use of the sovereignty clause and rejected the asylum request. 15. On 20 March 2012 the Asylum Court awarded suspensive effect to the applicant’s appeal against that decision, but on 24 September 2012 dismissed it as unfounded. It pointed out that the Hungarian authorities had informed the Asylum Office that they had planned an age assessment, but could not carry it out because the applicant had left the country. Thereupon, on 24 October 2011 the Hungarian authorities had discontinued his proceedings. However, the Asylum Court assumed that because of Hungary’s acceptance of jurisdiction under Article 16 § 1 (c) of the Dublin II Regulation the applicant would have access to asylum proceedings on the merits in Hungary. In its reasoning the Asylum Court took note of a letter from the UNHCR Office in Vienna dated 3 February 2012, seemingly citing problems with the techniques of age assessment in Hungary, detention and the detention conditions for asylum-seekers, refoulement to Serbia and the fact that a Dublin-returner’s asylum request was considered a subsequent asylum request if the proceedings had been discontinued in Hungary. However, the Asylum Court noted a lack of sources in the UNHCR’s letter and referred to the recently updated country information obtained by the Austrian asylum authorities, which did not indicate systematic deficiencies in the Hungarian asylum proceedings and reception conditions that would have warranted an extensive use of the sovereignty clause of Article 3 § 2 of the Dublin II Regulation. 16. On 10 October 2012 the applicant lodged a complaint with the Constitutional Court, which was rejected on 22 November 2012. This decision was served on the applicant’s counsel on 30 November 2012. An arrest order stated that a transfer of the applicant to the Hungarian authorities was planned for 22 November 2012. At that time, the applicant was still a minor. 17. On 20 November 2012 the Court applied an interim measure under Rule 39 of the Rules of Court and requested the Austrian Government to stay the applicant’s transfer to Hungary until further notice. The Austrian Government complied with this request. 18. On 3 December 2012 the Hungarian Government informed the Court that the applicant’s asylum proceedings in Hungary had been discontinued on 24 October 2011. The decision had become final on 4 November 2011. The first asylum proceedings would not be reopened upon his return to Hungary. If he was returned to Hungary, an asylum request would be considered a subsequent request which would not have automatic suspensive effect if there were no new circumstances supporting his application but there was a safe third country which he could be returned to. Regarding the issue of appointing a guardian for the minor applicant, the Hungarian authorities stated that unaccompanied minor asylum-seekers were usually immediately assigned a guardian, except when the applicant would reach the age of majority before the decision on the merits was taken. Unaccompanied minors were placed in a children’s home in Fót, where care and education were provided to them according to their age. Having regard to the fact that the applicant would turn 18 on 1 January 2013, it was very unlikely that a guardian would be appointed for him upon his return. | 0 |
test | 001-182221 | ENG | RUS | CHAMBER | 2,018 | CASE OF VLADIMIROVA v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 5. The applicant was born in 1957 and lives in Stavropol. 6. The applicant is the founder, sole owner and director of a limited liability company, Akvilon (общество с ограниченной ответственностью «Аквилон»). Prior to the events described below, the company had been engaged in the grocery retail trade. 7. On 30 November 2001 Akvilon purchased 5 tonnes of granulated sugar in 100 sacks on condition of delayed payment with a view to reselling it to Mr P. and Mr Pr. The two men made an oral agreement with the company to pay 55,000 Russian roubles (RUB – approximately 2,000 euros (EUR)) in cash immediately upon receipt of the sugar. 8. On the same date Mr V., the applicant’s husband and a deputy director of Akvilon, transferred the sugar to Mr P. and Mr Pr., who then left under the pretext that they had to fetch more cash in order to be able to pay. Shortly thereafter, Mr V. complained to the Nevinnomyssk Department of the Interior (Управление внутренних дел г. Невинномысска) of the misappropriation by Mr P. and Mr Pr. of the sugar belonging to Akvilon. 9. On 30 November 2001 criminal proceedings were instituted on suspicion of aggravated fraud in connection with the incident. The case was assigned to an investigator, Mr S., who granted the status of victim of a crime to the Akvilon company. 10. Later that day, the investigator in charge found the five tonnes of sugar in garages belonging to Mr P. and Mr Pr., in the amounts of 1.5 tonnes and 3.5 tonnes respectively. The two men admitted that they had no documents confirming that they had obtained the sugar legitimately, but insisted that they had paid the necessary amount in cash to a certain Ms Ya., who had promised to deliver the money to Akvilon and had then disappeared. The investigator acknowledged Mr P. and Mr Pr. as witnesses in the case and, without formally attaching the sugar, left it with them for safe storage. Both men gave written undertakings to store the sugar until a court decision was given on the matter. 11. On 20 December 2001, following a complaint by Akvilon, the Nevinnomyssk prosecutor’s office ordered the investigator, Mr S., to formally attach the sugar, to seize it from Mr P. and Mr Pr. and to deposit it with a neutral person for safe storage. 12. On 11 January 2002 the investigator ordered the attachment and seizure of the sugar from the garages belonging to Mr P. and Mr Pr., and its transfer to a third party for safe storage. On 15 January 2002 the order was executed and the attached sugar was included in the list of exhibits in the case. 13. By a decision of 22 February 2002 the investigator, Mr S., declared Mr V., who acted as a representative of the Akvilon company, a civil claimant in the criminal case. 14. On 6 August 2002, on the instructions of the prosecutor’s office of the Stavropol Region, the investigating authorities transferred the sugar to the Akvilon company for safe storage. 15. In late 2002 the criminal case was transferred to another investigator. 16. By two decisions of 24 March 2003 the investigator in charge lifted the attachment order on the sugar and ordered that it be excluded from the list of exhibits in the case. The decisions stated that the investigation had established that, despite their written undertakings to store the sugar, Mr P. and Mr Pr. had sold it to third persons in December 2001. They had then, on 8 January 2002, purchased another lot of sugar in the amount of 1.5 and 3.5 tonnes respectively, which had subsequently been attached and included in the list of exhibits by Mr S. The decisions concluded that the sugar in question was not the object of the crime in the present case, and therefore its attachment should be lifted. It is unclear what happened to the sugar thereafter. 17. On 31 March 2003 the Nevinnomyssk Department of the Interior decided not to institute criminal proceedings against Mr P. and Mr Pr. in connection with the fact that they had sold the sugar in breach of their written undertakings given to Mr S. The decision stated that the undertakings had not been legally binding, since when they had been given, the sugar had not been formally attached and included in the list of exhibits, and therefore there had been no legal grounds for Mr P. and Mr Pr. to refrain from selling it. 18. By a decision of 18 April 2003 the investigator in charge ordered the withdrawal of Akvilon’s victim status. The decision stated that it had been established during the investigation that on 30 November 2001 the Akvilon company had dispatched the sugar to the garages belonging to Mr P. and Mr Pr. The two men had then delivered the stipulated amount in cash to a certain Ms Ya., who had negotiated the deal between them and Akvilon and had disappeared once in receipt of the money. The decision concluded that in view of the fact that it was Mr P. and Mr Pr.’s money which had been stolen in the present case, rather than Akvilon’s sugar, it was the former and not the company who were victims of the crime. 19. On 6 March 2007 a deputy prosecutor of the Stavropolskiy Region ordered that Akvilon again be granted the status of victim of a crime. 20. On 29 March 2007 the criminal proceedings instituted in connection with misappropriation of Akvilon’s property were suspended owing to the absence of those responsible. 21. In 2002 Mr P. and Mr Pr. lodged a civil claim against the Akvilon company, seeking to have their title to, respectively, 1.5 and 3.5 tonnes of sugar attached by the investigating authorities acknowledged, the attachment order lifted and the sugar returned to them. 22. By a decision of 17 April 2003 the Nevinnomyssk Town Court (“the Town Court”) discontinued the proceedings in so far as they had been brought by Mr Pr. on the grounds that he was officially registered as a businessman, and that therefore his dispute with Akvilon fell within the competence of a commercial court. It does not appear that this decision was appealed against or that Mr Pr. attempted to pursue the proceedings any further. 23. As regards Mr P.’s claim, after several rounds of proceedings, the Town Court granted it in a judgment of 21 May 2004. The court confirmed Mr P.’s title to 1.5 tonnes of sugar, referring to the fact that he had purchased it on 8 January 2002. The court further established that the sugar belonging to Mr P. had been attached by the investigator, Mr S., and transferred to a third party and then to Akvilon for safe storage and that by the investigating authorities’ decision of 24 March 2003 the attachment order had been lifted. The court thus concluded that Akvilon was under an obligation to return 1.5 tonnes of sugar to Mr P., who was its rightful owner. The judgment was not appealed against, and no enforcement proceedings were ever instituted. 24. Throughout the investigation into the incident of 30 November 2001 the applicant lodged numerous complaints with the supervising prosecutors alleging negligence on the part of the investigator, Mr S. In particular, she complained of his failure timeously to attach the sugar belonging to Akvilon and his decision to transfer it for safe storage to Mr P. and Mr Pr., individuals whom Akvilon had accused of fraud, with the result that the sugar had been lost and Akvilon had suffered pecuniary damage. 25. In letters sent to the applicant in the period of 2002-04, the Nevinnomyssk prosecutor’s office and the main investigating division of the Department of the Interior of the Stavropol Region stated, inter alia, that the investigator, Mr S., had indeed breached certain requirements of the criminal procedure legislation. They went on to say that he had been subjected to disciplinary sanctions in that connection, but that there were no grounds to bring criminal proceedings against him. 26. Between April and July 2004 the Nevinnomyssk prosecutor’s office took a number of similar decisions to dispense with criminal proceedings against Mr S. They stated, in essence, that although formally there were elements of an offence punishable under Article 293 of the Russian Criminal Code (professional negligence) in Mr S.’s actions, that Article provided for criminal liability only if the damage caused by such negligence attained a minimum of RUB 100,000, whereas the pecuniary damage alleged by Akvilon had been lower than that amount. 27. In 2003 Akvilon initiated proceedings before the Commercial Court of the Stavropol Region against the Nevinnomyssk Department of the Interior, the Department of the Interior of the Stavropol Region and the Russian Ministry of the Interior. The company complained that the negligent actions on the part of the investigator, Mr S., during the investigation into the incident of 30 November 2001 had resulted in the loss of five tonnes of sugar belonging to the company. His actions had caused pecuniary damage to the company and had been detrimental to its business reputation, given that it had purchased the sugar on condition of delayed payment, which it had then been unable to fulfil. The company indicated that the pecuniary damage it had suffered to that date amounted to RUB 96,312, taking into account the current price of sugar. It also sought compensation for damage to its business reputation. 28. After several rounds of proceedings, in a judgment of 22 October 2004 the Commercial Court of the Stavropol Region dismissed the company’s claims in their entirety. It noted that it had not been proven that the investigator, Mr S., had been negligent in performing his duties, given that it had been decided to dispense with criminal proceedings against him in that connection, and that therefore there was no causal link between his actions and the pecuniary damage alleged by the claimant company. The court also stated that since Mr S. had not disseminated any defamatory statements concerning Akvilon, there were no grounds to grant its claim for compensation for damage to its business reputation. 29. On 30 November 2004 the Appellate Instance of the Commercial Court of the Stavropol Region quashed the first-instance judgment in so far as the applicant’s claim for pecuniary damage was concerned, stating that the lower court finding as to the absence of a causal link between the pecuniary damage sustained by Akvilon and Mr S.’s actions had been incorrect. The appellate court noted that the first-instance court had not taken into account that criminal proceedings against Mr S. in connection with the negligent performance of his duties had not been instituted only on the formal ground that the pecuniary damage inflicted on the claimant company by his actions had been below the statutory limit established in Article 293 of the Russian Criminal Code. The appellate court further found it established that “it was on account of the unlawful actions of investigator S., who had transferred five tonnes of sugar belonging to the Akvilon company to other persons, that [the company] had been deprived not only of its property but also of the right to claim compensation for damage in the context of the criminal proceedings, as the investigator in charge had withdrawn the status of victim [from the company]”. The appellate court considered it established that the company had proven the circumstances in which it had sustained pecuniary losses in the amount of RUB 96,312, and awarded the company the full amount claimed in respect of pecuniary damage, as well as RUB 8,619.42 for costs and expenses to be recovered from the Russian Ministry of the Interior at the expense of the Federal Treasury. The appellate court further upheld the judgment of 22 October 2004 in so far as it rejected the company’s claim concerning compensation for damage to its business reputation. 30. On 10 March 2005 the Federal Commercial Court of the NorthCaucasus Circuit, acting as a cassation instance, upheld the appeal decision of 30 November 2004. The court, however, reduced the award to RUB 55,000, noting that that sum represented the pecuniary losses sustained by Akvilon in 2001 (see paragraph 7 above). 31. On 19 May 2005 the Supreme Commercial Court of Russia refused leave to apply for a supervisory review of the case. 32. On 15 December 2004, following the decision of the Appellate Instance of the Commercial Court of the Stavropol Region of 30 November 2004, Akvilon was issued with a writ of execution and the enforcement proceedings were commenced. 33. In a decision of 12 July 2005 the Appellate Instance of the Commercial Court of the Stavropol Region noted that on 10 March 2005 the Federal Commercial Court of the North-Caucasus Circuit had reduced the award in respect of non-pecuniary damage from RUB 96,312 to RUB 55,000 and ordered that the recovery of the amount of RUB 41,312 be discontinued. 34. That decision was sent to the Russian Ministry of Finance, which then returned the writ of execution and the decision remained unenforced. 35. On 23 October 2006, at the request of Akvilon, the Commercial Court of the Stavropol Region issued it with another writ of execution for the amount of RUB 55,000 awarded in respect of pecuniary damage and RUB 8,916.42 awarded in respect of costs and expenses. 36. On 25 October 2006 the new writ was sent to the Ministry of Finance for enforcement. 37. On 4 July 2007 the Russian Ministry of Finance transferred the full amount due to Akvilon’s bank account. | 1 |
test | 001-146890 | ENG | GEO | ADMISSIBILITY | 2,014 | GORGADZE v. GEORGIA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Zdravka Kalaydjieva | 1. The applicant, Mr Merab Gorgadze, is a Georgian national, who was born in 1977 and lives in Batumi. He was represented before the Court by Mr L. Mamuladze, a lawyer practising in Batumi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze of the Ministry of Justice. 2. The facts of the case, as submitted by the applicant and according to the case file, may be summarised as follows. 3. On 5 July 2009 the applicant was arrested on suspicion of unlawful purchase, possession and sale of drugs. According to the record of his personal search, nine sachets containing a brownish substance were found in the right back pocket of his trousers. The search was carried out on the spot by two police officers, who rejected the applicant’s request for the attendance of independent witnesses, reasoning that there was a risk of him hiding or destroying the evidence. The applicant refused to sign the search record and specified that he had had no drugs on him. 4. According to the arrest report, which was drawn up immediately after the search, the applicant had multiple injuries on his body and face. When asked about the source of the injuries, the applicant, as noted in the report, claimed that he had fallen to the ground when running away from the police officers. 5. Later, after his transfer to the police station, an ambulance was called for the applicant. A doctor on duty conducted a visual examination and noted that the applicant had a hematoma on his left eye and several bruises on his chest. 6. On 6 July 2009 in prison the applicant was seen by a prosecutor. In the presence of his lawyer, the applicant complained that he had been severely beaten by police officers immediately after his arrest and also at the police station. A special note was drawn up detailing the applicant’s allegations, including the chain of events, the time, location, duration and methods of his ill-treatment. The applicant alleged that he had been threatened with rape. 7. The next day, the police officers who had arrested the applicant conducted an examination of the place of his arrest and concluded that the surface was uneven, with lots of rocks and holes. 8. On 17 November 2009 the Batumi City Court, whilst dropping the drug-dealing charges, convicted the applicant for unlawful possession of drugs in a particularly large quantity and sentenced him to eleven years’ imprisonment and a fine. By a decision of 21 January 2010 the Kutaisi Court of Appeal upheld the applicant’s conviction in full. Like the trial court, the appeal court, based its conclusions on the statements of the two police officers who had arrested the applicant and conducted his personal search. Both instances concluded that the applicant’s injuries had been the result of him having fallen several times during his attempt to escape. 9. On 17 March 2010 the Supreme Court of Georgia rejected an appeal on points of law lodged by the applicant. As it appears from the case file, despite his complaints, no criminal proceedings have been instituted into the circumstances of the applicant’s alleged ill-treatment. 10. On 11 July 2013 the application was communicated to the respondent Government. An information note, in Georgian, on the proceedings after communication of an application was forwarded at the same time to the applicant. It included the information that the nature of all friendly settlement negotiations was strictly confidential. On 29 November 2013 the Government submitted a friendly-settlement proposal within the framework of the proceedings before the Court, and on 3 December 2013 the Court sent the Government’s proposal to the applicant. 11. By their letter of 11 April 2014 the Government informed the Court that the applicant had disclosed the details of the friendly-settlement negotiations conducted between the parties to the media, in violation of the confidentiality rule as enshrined in Rule 62 § 2 of the Rules of Court. They accordingly invited the Court to declare the application inadmissible. 12. In their letter the Government referred the Court to an interview of the applicant published by the news agency Reportiori on 8 April 2014. In that interview the applicant provided a brief factual summary of his case and disclosed the specific amount proposed by the Government with a view to securing a friendly settlement. He further claimed that his refusal to accept the compensation offered had “irritated the Minister of Justice, following which they have sent to Strasbourg documents with distorted facts.” 13. It appears that even before that date, on 29 January 2014, another media source – news portal Kvira, published another interview with the applicant in which the latter likewise discussed the Government’s friendlysettlement proposal and referred to the specific amount proposed by the Government. The article was accompanied by scanned copies of the relevant letters from the Court. | 0 |
test | 001-151196 | ENG | POL | ADMISSIBILITY | 2,015 | KASPRZYKOWSKI v. POLAND | 4 | Inadmissible | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicant, Mr Zbigniew Kasprzykowski, is a Polish national, who was born in 1944 and lives in Rybna. 2. The Polish Government (“the Government”) were represented by their Agent Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 17 October 1946 a property ‘Wesołówka’ owned by the applicant’s mother was taken over by the State pursuant to provisions of the Decree of the Polish Committee of National Liberation on the Agrarian Reform of 6 September 1944 (Dekret PKWN o przeprowadzeniu reformy rolnej; the 1944 Decree). No decision was delivered at this stage of the proceedings. 5. On 23 October 1948 the Board of the Warsaw Regional National Council (Prezydium Warszawskiej Wojewódzkiej Rady Narodowej), acting on a motion of the applicant’s mother to exclude her property from the operation of the agricultural reform, decided that the property fell within the scope of the reform. 6. In July 1957 the Board of the Warsaw National Council quashed its decision (orzeczenie) of 23 October 1948 and decided that the property did not fall within the scope of the decree. This new decision had not been signed or stamped and was later referred to as a ‘draft decision’ by the domestic courts and administrative authorities. 7. The applicant’s mother sought restitution of her property until her death in September 1975. 8. Over the years the property was divided into smaller plots. Some of the plots were acquired by private individuals and the Nowe Miasto Commune, others remained the property of the State Treasury. 9. On 1 June 2007 the applicant lodged a motion to have the decision of 23 October 1948 annulled. 10. On 31 October 2007 the Mazowiecki Governor (Wojewoda Mazowiecki) decided to refer the case to the Minister of Agriculture and Countryside Development (Minister Rolnictwa i Rozwoju Wsi). He found, after examining the case file of the previous proceedings, that the latter authority was the competent authority to examine the applicant’s motion. 11. On 29 January 2008 the applicant lodged a complaint with the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny w Warszawie) about the inactivity on the part of the Minister of Agriculture and Countryside Development. 12. On 14 February 2008 the Minister of Agriculture and Countryside Development replied to the applicant’s complaint. The Minister explained that on 4 February 2008 the applicant had been requested to redefine his motion of 1 June 2007 and to provide documents certifying that he was an heir of Ms. B.K.’s property rights. He considered that this information was essential to proceed with the case. The Minister further informed the applicant that the time-limit to handle his case had been prolonged until the third quarter of 2008. 13. On 10 April 2008 the Warsaw Regional Administrative Court dismissed the applicant’s inactivity complaint. It appears that the applicant failed to request that written grounds for the judgment be prepared. He also did not appeal against this judgment. 14. On 6 March 2012 the Minister of Agriculture and Countryside Development declared the decision of 23 October 1948 null and void (stwierdził nieważność orzeczenia). 15. The applicant and the Płońsk Forestry Management (Nadleśnictwo Płońsk) requested a re-examination of the case. The applicant argued that declaring the decision of 23 October 1948 null and void resulted in him becoming an owner of the property in question. He thus considered that the decision should not have been declared null and void as regards the part of the property which had been acquired in good faith by private individuals. According to the applicant, the part of the decision relating to the private plots of land should have been declared as issued in breach of law (wydana z naruszeniem prawa) which would enable him to claim compensation from the State. 16. On 8 May 2012 the Minister of Agriculture and Countryside Development upheld his previous decision of 6 March 2012. The Minister argued that declaring the decision of 23 October 1948 null and void had not automatically resulted in the applicant becoming the owner of the property Wesołówka. In the Minister’s view, a refusal to declare null and void the decision would have adversely affected the applicant’s interests since only the annulment of the entire decision would enable the applicant to contest other decisions delivered as a result of the quashed decision. 17. The applicant challenged the above decision before the Warsaw Regional Administrative Court which on 19 March 2013 gave judgment and dismissed the applicant’s complaint. 18. The State Treasury represented, statio fisci, by the State Forests National Forest Holding (Państwowe Gospodarstwo Leśne Lasy Państwowe) lodged a cassation appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny). 19. The proceedings are pending before the Supreme Administrative Court. 20. The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the 2002 Act on Proceedings before Administrative Courts, are set out in the Court’s judgment in the case of Grabiński v. Poland no. 43702/02, §§ 60-65, 17 October 2006. 21. On 3 December 2010 Article 37 of the Code of Administrative Proceedings and Article 3 of the Law on Proceedings before Administrative Courts were amended (amendments entered into force on 11 April 2011). 22. Following the amendment to Article 37 § 1 a party to administrative proceedings may currently file a complaint not only about an authority’s failure to handle the case within the time-limits referred to in Articles 35 and 36, but it may also complain about undue delay in the conduct of the proceedings (przewlekłe prowadzenie postępowania). 23. Section 3 § 2 of the Law of 30 August 2002 on Proceedings before Administrative Courts, as amended on 11 April 2011, contains provisions allowing a party to administrative proceedings to lodge a complaint with an administrative court, alleging inactivity of the authority obliged to issue an administrative decision or undue delay in the conduct of the proceedings. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law. 24. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are presented in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. | 0 |
test | 001-152416 | ENG | BGR | CHAMBER | 2,015 | CASE OF GUSEVA v. BULGARIA | 3 | Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom to impart information;Freedom to receive information);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Pavlina Panova;Zdravka Kalaydjieva | 6. The applicant was born in 1951 and lives in Vidin. She is a member of the Board of Directors of the Animal Protection Society in Vidin. On 16 September 2002 she was authorised to represent the organisation before any and all institutions in Bulgaria in relation to its activities. 7. On 11 April 2002 the applicant asked the mayor of Vidin for access to information about an agreement, concluded between the municipality and the municipal company “Cleanliness” EOOD, for the collecting of stray animals on the territory of Vidin municipality. 8. The mayor sought the explicit consent to that effect of the head of “Cleanliness” EOOD, considering that that was a statutory condition under section 31 (2) of the Access to Public Information Act 2000. The head of “Cleanliness” EOOD refused to give consent on 28 May 2002. The mayor issued a decision on 4 June 2002 in which he refused to provide the applicant with access to the information she sought. The mayor referred to section 37 (1) (2) of the Access to Public Information Act 2000, which at the time listed the absence of a third interested party’s explicit written consent for the provision of information among the grounds for refusal to grant access to information. 9. The applicant brought court proceedings against the decision of the mayor refusing access to the information. The Vidin Regional Court allowed the applicant’s claim on 27 June 2003, finding that the information sought did not affect the rights of “Cleanliness” EOOD and therefore section 37 (1) (2) was not applicable. The court accordingly ordered the mayor to provide the information to the applicant. 10. Following a cassation appeal by the mayor, the Supreme Administrative Court upheld the lower court’s judgment on 25 May 2004. It held that the information was of high public interest, the rights of third parties were not affected and the mayor’s decision denying access to information to the applicant was not reasoned. 11. On 20 January 2003 the applicant again asked the mayor of Vidin for information. This time the information she sought concerned the annual statistics for 2001 and 2002 about animals held in an animal shelter called “Municipal Care”. In particular she asked how many animals were placed there, how many of them died or were put to death, and how much their care had cost the municipal budget. 12. The mayor sought the explicit consent to that effect of the head of the public utilities company concerned, “Titan Sever” OOD, considering once again that that was a statutory condition under section 31 (2) of the Access to Public Information Act 2000. In a letter of 10 February 2003 the head of “Titan Sever” OOD refused to give consent. On 14 February 2003 the mayor refused to provide the applicant with access to the information, referring to section 37 (1) (2) of the Access to Public Information Act 2000. 13. The applicant brought court proceedings against the decision of the mayor refusing access to the information. The Vidin Regional Court allowed the applicant’s claim on 27 June 2003. It found that, if third parties objected to the provision of information concerning them, section 31 (4) of the Access to Public Information Act 2000 obliged the mayor to grant access to that information in a manner not disclosing the parts related to the third party. It then sent the case back to the municipality ordering it to provide the information to the applicant. 14. Following a cassation appeal by the mayor, the Supreme Administrative Court upheld the lower court’s judgment on 25 May 2004. It held that the information was of high public interest, the rights of third parties were not concerned and that, even if they were, the information could be provided without disclosing the parts concerning the third parties. Finally, that court found that the mayor’s decision denying access to information to the applicant was not reasoned. 15. On 17 June 2003 the applicant once again asked the mayor for information. The information concerned a public procurement procedure which had been organised by the mayor and aimed at reducing the number of stray dogs in Vidin. The applicant wanted to know the number of the organisations which had tendered for a contract with the municipality, which ones had passed the pre-selection stage, and - in respect of those who have - the following information: the type and number of qualified staff they employed; the infrastructure and facilities they had for humane catching and transportation of dogs; the proof they had presented for their capacity to deliver quality services; and, the price they asked for providing the services. 16. On 1 July 2003 the mayor refused to provide that information in a reasoned decision. The explanation he gave was that the information requested concerned solely the participating candidates in that procurement procedure and their bids in accordance with the Public Procurement Act 2004; that it was of an economic nature; that it was related to the preparation of the mayor’s administrative actions in relation to the procurement procedure; and, that it had no significance of its own. 17. The applicant brought court proceedings against the decision of the mayor refusing access to the information. On 10 December 2003 the Vidin Regional Court allowed the applicant’s claim and overturned the mayor’s refusal to provide the information sought. The court found that the information in question had not been classified, that the mayor’s decision was not issued within the statutory time-limit and that its content was not in conformity with the requirements of section 38 of the Access to Public Information Act 2000. The court sent the case back to the mayor, specifically ordering him to provide information to the applicant about the organisation which had won the municipal contract at the end of the public procurement procedure and the conditions of that contract. 18. Following a cassation appeal by the mayor, on 20 October 2004 the Supreme Administrative Court partly upheld the lower court’s judgment. It quashed the judgment’s part which ordered the mayor to provide the applicant with information about the organisation which had won the municipal contract and the conditions of that contract. It held that the mayor had to provide the rest of the requested information. 19. On 10 June 2004, referring to the two decisions of the Supreme Administrative Court of 25 May 2004 which concluded the proceedings in her first two requests for information, the applicant asked the mayor of Vidin to provide her with the information requested. 20. On 10 December 2004, referring to the decision of the Supreme Administrative Court of 20 October 2004 which concluded the proceedings in her third request for information, the applicant asked the mayor to provide her with the information requested. 21. On 27 December 2004, the mayor refused in a written decision to provide the information sought by the applicant following the Supreme Administrative Court’s judgment of 20 October 2004. In particular, he repeated the findings of the Supreme Administrative Court that he was not expected to provide information about the company which had won the municipal contract and remained silent in respect of the rest of the information he had been ordered to provide. It would appear that the mayor did not react to the applicant’s request for information following the two Supreme Administrative Court’s judgments of 25 May 2004. 22. In a letter of 15 September 2010, the applicant informed the Court that there were no further developments and the information she sought had not been provided to her. | 1 |
test | 001-146383 | ENG | POL | CHAMBER | 2,014 | CASE OF P.F. v. POLAND | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 5. The applicant was born in 1963 and lives in Warsaw. 6. The applicant and A.W. were in a relationship that started in May 2003. On 13 April 2004 their twin daughters were born (A. and J.). Subsequently, in February 2005, the applicant and A.W. separated. 7. On 2 November 2007 the applicant lodged a motion with the Warsaw Mokotów District Court (Sąd Rejonowy) for the establishment of contact and an interim contact order. 8. At the same time A.W. lodged a motion with the Warsaw District Prosecutor alleging that the applicant had sexually abused A. and J. On 8 January 2008 the prosecutor informed the Warsaw District Court about the allegations of sexual abuse. The court ordered a social enquiry report (wywiad środowiskowy) into the case, which was conducted on 9 February 2008. On 19 February 2008 the prosecutor instituted a criminal investigation into the allegations of sexual abuse. 9. On 21 January 2008 the Warsaw Mokotów District Court issued an interim contact order. Under the terms of that order, the applicant was allowed to visit the children every other Sunday between 10 a.m. and 2 p.m. 10. On 28 March 2008 the court stayed the custody proceedings as the criminal proceedings into the alleged sexual abuse were pending. 11. Meanwhile, on 15 June 2008 the Warsaw District Court of its own motion instituted proceedings concerning the limitation of the applicant’s custody rights. 12. During the course of the criminal proceedings, the prosecutor obtained two expert reports and heard a number of witnesses. On 31 October 2008 the prosecution discontinued the criminal proceedings into the allegations of sexual abuse on the grounds that there was not enough evidence that the alleged offences had been committed. The court-appointed expert established that A. and J. had not demonstrated the psychological symptoms of a sexually abused child. However, according to a private expert opinion provided by A.W., the facts of the case demonstrated that the children had been sexually abused. A.W. appealed against the decision to discontinue the proceedings. The prosecutor’s decision was upheld by the Warsaw Mokotów District Court. 13. On 20 January 2009 the Warsaw Mokotów District Court resumed the proceedings for the establishment of contact. At the same time it also resumed the proceedings for limitation of the applicant’s custody rights. 14. On 10 June 2009 the District Court modified the interim contact order, allowing the applicant to see his daughters every Saturday between 9 a.m and 6 p.m. in their home. The court also ordered A.W. to set a new time in case a Saturday visit was not possible. Both parties lodged interlocutory appeals. They were dismissed on 9 November 2009. 15. On 3 September 2009 the applicant submitted a report to the court indicating that the mother had failed to comply with the terms of the access arrangements. The applicant’s letter also contained a description of several visits that had taken place between May 2008 and August 2009. 16. On 23 December 2009 the mother applied for a change to the access arrangements. She asked the court to order visits every two weeks for four hours. 17. On 24 February 2010 the Warsaw Mokotów District Court again modified the interim contact order, allowing the applicant to visit his children every Saturday between 10 a.m. and 2 p.m. in their home. The court also ordered that the parents and children be examined by experts in the Regional Family Consultation Centre (Rodzinny ośrodek diagnostyczno-konsultacyjny) (“RODK”). The court also ordered a further expert opinion. 18. The meeting scheduled with RODK for June 2010 did not take place because the daughters were ill. The next meeting took place on 20 September 2010. According to the expert opinion, the daughters were drawn into the parents’ conflict by their mother. Both daughters sought contact with their father and wished to visit him in his home. The experts recommended therapy involving both parents and children. 19. The opinions of RODK and of the court’s expert were submitted to the court on 22 October 2010 and 7 February 2011. Following the change of the presiding judge, a hearing date was set for 2 March 2011. 20. Subsequently, the applicant applied for a change of the access arrangements. On 9 March 2011 the court issued yet another interim contact order and ruled that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. outside their home. The court considered that there was an emotional bond between the applicant and his daughters and in order to preserve it, it was important that the contact take place outside the children’s home. The court further referred to the expert opinion of W.B., who confirmed that A. and J. had not demonstrated symptoms of being victims of sexual abuse. However, the mother refused to comply with this order and lodged an appeal. On 25 July 2011 the Warsaw Regional Court upheld the first-instance decision. 21. Subsequently, A.W. cancelled most of the visits on the grounds that the children had been away and from 10 September 2011 she refused all visits. 22. On 7 October 2011 A.W. applied for modification of the access arrangements. Her motion was dismissed by the Warsaw Mokotów District Court on 24 October 2011. 23. During a hearing held on 11 October 2011, A.W. again applied for a change of access arrangements. She agreed to respect the interim order of 9 March 2011, however she made a request to the court that the contact should take place in the presence of the children’s babysitter or a court-appointed guardian. During that hearing the court heard evidence from the expert W.B., who confirmed that he did not consider that A. and J. demonstrated behaviour typical of children who had been sexually abused. He based his opinion on an analysis of the court files and a VHS recording of the children’s interview. 24. On 16 December 2011 the Warsaw Mokotów District Court gave a final decision in the case. It ordered that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. The visits would take place in the children’s home with the mother present and in the applicant’s home with the presence of a court-appointed guardian. The court considered that the applicant should be allowed to meet his daughters outside their home and without the mother’s presence since the girls needed contact with their father. However, the court also stressed that, because the applicant’s contact with his daughters had not been regular, he did not know much about them. The applicant appealed. 25. After February/March 2012, the applicant was again able to exercise his right of contact with his daughters on a weekly basis, every Saturday between 9 a.m. and 1 p.m. at A.W.’s home. 26. On 29 May 2012 the Warsaw Regional Court quashed the Warsaw District Court’s decision. The court held that the proceedings concerning the limitation of the applicant’s custody rights should not have been joined with the access proceedings. In addition, due to different requirements concerning the composition of the court in both cases, the District Court had sat in an incorrect formation and the proceedings were null and void. 27. At a hearing held on 30 November 2012 both the applicant and A.W. testified. The applicant submitted that after their separation in 2005 the contact with his children had been irregular. In September 2007 A.W. (who is an actress) had participated in a live TV show and the girls had stayed at the applicant’s home every Saturday and had been collected by their mother on Sunday morning. Once the TV shows were finished at the beginning of October 2007, the applicant had wished to continue this arrangement, however A.W. disagreed. Consequently he lodged his application with the District Court. He stressed that after the court had delivered its first interim order (see paragraph 9 above), many of the visits had not taken place since A.W. had been absent for the weekend. The applicant further submitted that the interim order of 9 March 2011 (see paragraph 20 above) had never been enforced because whenever he had come to collect the children either A.W. had not been at home or she had refused to open the door. Lastly, the applicant confirmed that between September 2011 and February 2012 he had not seen his children at all. Since March 2012 he had been visiting his daughters every Saturday for 4 hours at their home. The children’s mother A.W. confirmed to the District Court that between 2005 and September 2007 she had allowed the applicant to contact their daughters on many occasions. However, after she discovered that the applicant might have abused her daughter A., she had prohibited all contact. The contact had restarted in January 2008. She had never complied with the order of 9 March 2011 since she had been concerned about her daughters’ wellbeing. She further informed the court that she was planning to move to Gdansk with the daughters and her new partner. 28. On 3 December 2012 the Warsaw District Court gave its decision. The court ordered that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. The visits would take place outside the children’s home and without the presence of their mother. In addition, he could spend Christmas with them every odd year and Easter every even year and also parts of the summer and winter holidays. However, the applicant was only allowed to visit his daughters between 10 a.m. and 4 p.m. and they were not allowed to stay overnight at his home. 29. Both parties appealed. 30. The applicant instituted proceedings for enforcement of the interim contact orders and made several applications for fines to be imposed on A.W. under Article 1051 of the Code of Civil Procedure. 31. On 23 November 2009 the applicant lodged a motion for the imposition of a fine on A.W. for failure to comply with the access arrangements as specified in the interim contact order of 10 June 2009. 32. On 17 May 2010 the Warsaw Mokotów District Court ordered A.W. to enforce the interim contact order of 27 February 2010 within 30 days, on pain of payment of a fine of 500 Polish zlotys (PLN). The court established that initially the contact had taken place regularly, but this had been in accordance with the terms of the previous interim contact order of 21 January 2008 (every other Saturday from 10 am to 2 pm instead of every Saturday from 9 am to 6 pm). Such an arrangement had resulted from the interpretation given to A.W. by the lawyers from the Ombudsman’s Office, who informed her that the new interim contact order would be effective only once it had become final. The court further observed that the contact had been regular; most of the visits were shortened or cancelled by the applicant and not by the mother. Lastly, the court ordered the mother to comply with the interim order of 27 February 2010. 33. On 24 August 2010 the applicant lodged a motion for imposition of a fine on A.W. He submitted that she had failed to comply with the order of 17 May 2010. 34. On 15 March 2011 the Warsaw Mokotów District Court discontinued the enforcement proceedings. The court held that the interim contact order had been modified in the meantime (on 9 March 2011) and there was therefore no need to deliver a decision in the present set of proceedings. The applicant appealed, asking the court to impose a fine on A.W. His appeal was dismissed by the Warsaw Regional Court on 11 August 2011. The court repeated the reasons given by the District Court and held that the interim order of 10 June 2009 had been replaced by a new interim order of 9 March 2011. 35. In November 2012 the applicant lodged a new motion for the imposition of a fine on A.W. 36. On 4 January 2013 the court imposed a fine on A.W. | 0 |
test | 001-179045 | ENG | HUN | ADMISSIBILITY | 2,017 | DOMJÁN v. HUNGARY | 4 | Inadmissible | Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 1. The applicant is a Hungarian national who was born in Pécs and is detained in Szeged Prison. 3. On 12 December 2010 the applicant was placed in Pálhalma Prison. He alleged that during his time in Pálhalma Prison he had been kept in a cell measuring thirty square metres, which he had had to share with fourteen other inmates. Outdoor exercise had been limited to one hour a day and the applicant had spent the remainder of his time in the cell. Furthermore, the cell had been infected with bed bugs. 4. In March 2011 the applicant was transferred to the Prison of the Central Transdanubia Region, where he was first accommodated together with seventeen other inmates in a cell measuring forty-five square metres, then together with thirteen other inmates in a cell measuring twenty-five square metres. He claimed that in both cells the toilet had been separated from the living area only by a curtain. The applicant was allowed to take a five-minute shower once a week. 5. As of 11 January 2012, he was transferred to Baranya County Prison where he was held in a cell measuring sixty square metres and accommodating twenty eight inmates including him. Throughout this confinement he had outdoor stays for only an hour a day in a yard measuring twenty-five square metres. He spent the remainder of his time in the cell. 6. Between March 2015 and 15 July 2015 the applicant was detained in Veszprém County Prison. The cell where he was held measured seven square metres and accommodated three inmates. It was equipped with a separate toilet. The applicant was allowed to take a ten-minute-long shower once a week. 7. From 15 July 2015 to 9 July 2016 the applicant was detained in Szombathely Prison, where six persons were held in a cell measuring twelve square metres. Outdoor exercise was limited to one hour a day. 8. Since 9 July 2016 the applicant has been detained in Szeged Prison with eleven other detainees in a cell measuring twenty-five square metres. The applicant is allowed to move freely outside his cell. 9. On 25 October 2016 the Hungarian Parliament adopted Act No. CX of 2016, amending certain Acts on criminal matters in relation to the judgment adopted by the European Court of Human Rights in the case of Varga and Others v. Hungary (hereinafter, the “2016 Act” – see paragraph 15 below). This Act was promulgated on 4 November 2016 and entered into force on 1 January 2017. It was aimed at introducing preventive and compensatory remedies in cases of inadequate conditions of detention. 10. On 15 September 2017, the Minister of Justice of Hungary addressed to the President of the Court a letter “concerning the implementation of the pilot judgment in the case of Varga and Others v. Hungary”. The Minister noted that under the 2016 Act, a complaint alleging conditions of detention in violation of Article 3 of the Convention could be presented to the prison governor, who should, as far as practicable, take the necessary actions in order to improve the conditions or counterbalance the injury suffered (for instance: relocation, increasing the time allowed for visits or the time spent in the open air, and improvement of the sanitary facilities). According to the Minister, in view of the progress of the prison capacity expansion programme, there was a “real prospect” of finding penal institutions with sufficient capacity. A preventive remedy could, however, be used only while the detention was still ongoing. After release, and within six months of the termination of the prison sentence, only a compensatory claim could be submitted. This could lead to the granting of a sum calculated on the basis of the number of days spent in conditions contrary to Article 3 of the Convention, the daily tariff ranging from a minimum of 1,200 Hungarian forints (HUF – approximately 4 euros (EUR)) and a maximum of HUF 1,600 (approximately EUR 5.3). The judge must exercise his or her judicial discretion in order to award an amount proportionate to the gravity of the violation found, taking into account, for instance, the absence of toilets separated from the living space in the cell, in addition to a general situation of overcrowding, or to other inadequate conditions of detention. The sum thus determined must be paid within sixty days of the decision being served. 11. The Minister further stated that from 1 January to 7 August 2017, 5,447 applications for compensation had been lodged with the penal institutions, thus showing the accessibility of the new remedy. Referring to the strict time-limits provided for by the 2016 Act, the Minister argued that the remedy also satisfied the requirement of quick adjudication and underlined that the judge responsible for the execution of sentences must provide reasons for his or her decision. As to the amount of compensation, the Minister noted that the Italian legislation adopted following the pilot judgment in the case of Torreggiani and Others v. Italy (nos. 57875/09 and 6 others, 8 January 2013) fixed the sum to be granted at EUR 8 per day of detention in conditions incompatible with the requirements of Article 3 of the Convention. Having regard to the burden-bearing capacity and of the economic realities of the two countries, the choice of the Hungarian legislator to fix the daily tariff at between EUR 4 and 5 could be deemed to be reasonable. 12. The Minister lastly noted that out of 3,554 cases brought before the judges responsible for the execution of sentences, 248 claims had been adjudicated by 14 July 2017, awarding a total amount of HUF 153,510,900 (approximately EUR 497,040). Moreover, due to the extension of the prison capacity achieved as part of the action plan, overcrowding in Hungarian prisons had significantly dropped: whereas in 2014 the occupancy level had been 413%, in 2016 and 2017 the respective figures were 131% and 129%. 13. In the light of the above, the Minister urged the Court to find that the preventive and compensatory remedies provided for by the 2016 Act were effective and needed to be exhausted in accordance with Article 35 § 1 of the Convention. 14. In a letter of 27 September 2017 the Registry of the Court asked the applicant to indicate whether he had used the remedies provided for by the 2016 Act or intended to do so. In his reply of 12 October, the applicant stated that he had lodged a claim under the relevant domestic legislation and the proceedings were still pending before the Szeged High Court. 15. The 2016 Act introduced, inter alia, new sections into Act No. CCXL of 2013 on the enforcement of punishments, measures, certain coercive measures and confinement for regulatory offences. In so far as relevant, those sections read as follows: Compensation for conditions of detention violating fundamental rights Section 10/A “(1) Convicts and persons detained on other grounds are entitled to compensation for not having been provided with the inmate living space specified in the law and for any other conditions of detention violating the prohibition of torture or cruel, inhuman or degrading treatment, in particular for violations caused by unseparated toilets, and lack of proper ventilation or lighting or heating and disinfection (henceforth together: conditions of detention violating fundamental rights). Compensation shall be awarded for the number of days spent in conditions of detention violating fundamental rights. Compensation shall be paid by the State. (2) Under the head specified in subsection (1), no further indemnification or damages for infringement of personality rights shall be sought but convicts and persons detained on other grounds may apply to a civil court seeking additional damages exceeding the amount of compensation. (3) The daily compensation tariff shall be a minimum of HUF 1,200 but a maximum of HUF 1,600. (4) A compensation claim may be made within six months of the date on which the conditions of detention violating fundamental rights ceased to exist. This time-limit is absolute. For the purposes of this subsection, conditions of detention violating fundamental rights will not be considered to have ceased to exist where those conditions are interrupted for a short period, but for a maximum of thirty days, on account of the fact that within the term of imprisonment of the convict or person detained on other grounds the statutory living space has been provided. (5) A compensation claim may be lodged by a convict or person detained on other grounds or by their counsel or, if the detainee has already been released, by his legal representative. The compensation claim shall be lodged in writing with the penal institution where the detention is being effected or, if the convict or person detained on other grounds has been released, with the penal institution which released him. In the application for compensation the convict or person detained on other grounds shall give a statement as to whether the European Court of Human Rights (henceforth: the ECHR) has obliged the State to pay damages to him on account of conditions of detention violating fundamental rights and whether a civil court has already awarded him indemnification or damages for infringement of personality rights. If the answer is yes, the detainee shall also state the name of the court and the case number in the application. (6) Save for inmates undergoing involuntary treatment or temporary involuntary treatment, a further condition for the lodging of such an application for compensation is the prior submission by the convict or person detained on other grounds of a complaint under Section 144/B to the head of the organ responsible for the enforcement of the sentence about the conditions of detention violating fundamental rights. This condition shall be applicable where the number of days spent in conditions of detention violating fundamental rights has exceeded thirty (30). Where conditions of detention violating fundamental rights exist over a longer period of time, a further complaint does not need to be lodged within three months.. Where the convict or person detained on other grounds could not enforce his right of complaint for reasons beyond his control, it shall not be imputed to him. (7) It will be possible to satisfy other claims from the compensation awarded only (a) up to the amount of a civil claim or of an indemnification or damages for infringement of personality rights awarded under a final civil judgment in relation to the offence for the enforcement of which the compensation is awarded, and (b) up to the amount of a child-support claim enforced in enforcement proceedings for the collection of child support. (8) Where in the cases specified in subsection (7) the amount of compensation is not enough to satisfy all the claims, first the child-support claim, then the civil claim and the indemnification or damages for infringement of personality rights awarded on account of the offence shall be satisfied in equal proportion. Section 10/B (1) The minister responsible for justice shall make arrangements for the payment of the compensation awarded. (2) In making the arrangements for the payment of the compensation, the minister responsible for justice shall, from the register kept by the office of the Hungarian Court Bailiffs’ Organisation, request data on any child-support enforcement proceedings stayed or pending against the convict or person detained on other grounds, as well as the case number and the name of the bailiff with jurisdiction in the case. (3) Where the data received under subsection (2) or from the penitentiary judge indicate that enforcement proceedings for the collection of child support or for the satisfaction of a civil claim or for the payment of indemnification or damages for infringement of personality rights awarded against the inmate on account of the commission of the offence have been instituted, the minister responsible for justice shall inform the bailiff of the amount of compensation awarded to the debtor and the claims that may be satisfied from the compensation by way of debt collection. In such cases the compensation may, in line with Section 10/A(8), only be paid after the bailiff has taken the necessary enforcement measures for the attachment of the debt. (4) Where in his decision the penitentiary judge orders that a partly or fully unpaid civil claim or indemnification or damages for infringement of personality rights awarded on account of the committed offence are to be deducted and paid to the beneficiaries of such claims, the remaining compensation is to be paid to the convict or person detained on other grounds. Where the available data indicate that enforcement proceedings for the collection of child support have been instituted, the compensation may only be paid after the bailiff has, in line with Section 10/A(8), taken the necessary enforcement measures for the attachment of the child support Child support shall be collected primarily from the compensation payable to the convict or person detained on other grounds. (5) Payment may be effected via bank transfer to the bank account number given by the convict or person detained on other grounds or paid into the bank account of, or in cash to, the beneficiary of the indemnification or damages for infringement of personality rights awarded on account of the offence committed, in accordance with his or her request. Where the convict or person detained on other grounds is still detained, he may request that the compensation be transferred to a deposit account. (6) The minister responsible for justice may process personal data obtained under subsections (2)-(4) and being related to the enforcement of a child support claim or civil claim or indemnification or damages for a violation of personality rights awarded on account of the offence committed, for thirty days from the date of payment of the compensation. Compensation proceedings to redress damage resulting from conditions of detention violating fundamental rights Section 70/A (1) A decision on whether compensation is payable to an inmate for damage resulting from conditions of detention violating fundamental rights shall be taken by the penitentiary judge at the request of the inmate or his counsel. A decision by the penitentiary judge may be taken also on the basis of documents. (2) The penal institution shall transmit the application, together with its opinion on the application, to the penitentiary judge within fifteen days or, where several penal institutions are affected, within thirty days with the specification that if the inmate has lodged a complaint alleging conditions of detention violating fundamental rights, the penal institution’s opinion may only be transmitted after the complaint, including an application for judicial review lodged against a decision on relocation, has been determined. A summary of the inmate’s records containing data on the conditions of detention in the period complained of shall be appended to the opinion. (3) The penitentiary judge shall, ex officio, examine whether the ECHR has obliged the State to pay damages to the inmate on account of the conditions of his detention violating fundamental rights or whether a civil court has awarded indemnification or damages for infringement of personality rights, and if the answer is yes, the penitentiary judge shall obtain the relevant decisions before taking a decision. (4) The penitentiary judge shall evaluate the inmate’s conditions of detention in their entirety and shall determine the daily compensation tariff on the basis of the extent of the injury caused. Thereafter, compensation shall be calculated by multiplying the daily compensation tariff by the time spent in conditions of detention violating fundamental rights. (5) The penitentiary judge shall reject the application on the basis of the documents, without an examination on the merits, where (a) the application has been lodged belatedly (b) the application has been lodged by a person not entitled to lodge such an application (c) the inmate has failed to lodge the complaint as specified in Section 144/D, or (d) in respect of the period indicated in the application, the ECHR has obliged the State to pay compensation, or a civil court has awarded indemnification or damages for infringement of personality rights on account of the conditions of the inmate’s detention violating fundamental rights. (6) Where the inmate has been released, proceedings shall be conducted by the penitentiary judge with jurisdiction for the location of the penal institution, but if a separate request to that effect has been made by the inmate or his defence counsel, the penitentiary judge with jurisdiction for the inmate’s place of domicile or place of residence shall proceed. ... Section 70/B (1) Where the court that dealt with the criminal case against the inmate has awarded a civil claim to the injured party or his heir or referred the enforcement of the civil claim to another legal avenue, the penitentiary judge shall invite the injured party to submit, within a time-limit of fifteen days, a statement as to whether the inmate has paid the civil claim awarded to the injured party or has paid – if the injured party lodged an action seeking to recover the damage caused by the offence or seeking the payment of damages for infringement of personality rights – the indemnification or damages for infringement of personality rights awarded by the civil court. If full payment has not been made by the inmate, the statement shall also confirm whether the injured party requests the deduction of the outstanding claim from any compensation that may be awarded to the inmate. (2) In the case specified in subsection (1), the penitentiary judge shall also invite the injured party to state the precise amount he is claiming and to append any documents in his possession in relation to the civil claim or the indemnification or damages for infringement of personality rights awarded to him on account of the committed offence. Where the penitentiary judge adjudicates the case on the basis of documents, he shall obtain a statement from the inmate on the payment of the indemnification or damages for infringement of personality rights awarded against him on account of the committed offence. (3) If the injured party requests the payment of the outstanding part of the indemnification or damages for infringement of personality rights awarded to him on account of the committed offence, the penitentiary judge shall request data from the register kept by the office of the Hungarian Court Bailiffs’ Organisation on any stayed or pending proceedings instituted for the collection of such claims, as well as the case number and the name of the bailiff with jurisdiction in the case. (4) In the case specified in subsection (1), the time-limit specified in Section 50 subsection (1)(d) shall be extended by sixty days. Where the invitation to the injured party has not produced any result within sixty days, the penitentiary judge shall adjudicate the case by ignoring any outstanding amount of indemnification or damages for infringement of personality rights awarded on account of the committed offence. (5) The penitentiary judge shall make arrangements for the payment from the compensation amount to the beneficiary of any outstanding civil claim amount or indemnification or damages for infringement of personality rights awarded on account of the committed offence, where (a) the civil claim or the indemnification or damages for infringement of personality rights awarded to the injured party on account of the committed offence has not yet or not fully been paid by the inmate, (b) no enforcement proceedings have been instituted for the collection of the claims specified in point (a), (c) in examining a defence statement to that effect filed by the inmate or his counsel, the penitentiary judge has established that the limitation period specified in the Civil Code has not yet elapsed. (6) In the decision the penitentiary judge shall oblige the State to pay the compensation and shall invite the State to effect the payment within a time-limit of sixty days from the service of the decision. Review of a decision on the measures taken following a complaint about conditions of detention violating fundamental rights and on relocation Section 75/A (1) An application by the inmate or his counsel for the judicial review of a decision on the measures taken following a complaint about conditions of detention violating fundamental rights and on relocation shall be determined by the penitentiary judge within five working days of the receipt of the application. (2) If in the review the penitentiary judge finds that the governor of the penal institution has failed to take a measure the penitentiary judge shall, by applying – mutatis mutandis – Section 72(1)(d), instruct the governor of the penal institution to conduct the proceedings. (3) The costs of the criminal proceedings shall be borne by the State. ... Complaint about conditions of detention violating fundamental rights Section 144/B (1) The inmate or his counsel may submit a written complaint alleging conditions of detention violating fundamental rights directly to the governor of the penal institution. (2) The complaint shall be determined within fifteen days of its submission. Upon receipt of the complaint, the governor of the penal institution shall, in the event of conditions of detention violating fundamental rights, take the necessary actions to improve the conditions or to counterbalance the injury suffered. With the exceptions specified in subsection (3) below, the governor of the penal institution shall issue a decision setting out the actions to be taken. (3) Where the conditions of detention violating fundamental rights on account of the lack of statutory inmate living space cannot be terminated in the penal institution in issue, the governor of the penal institution shall, with urgency, contact the National Prison Administration’s department responsible for detention matters and shall request the inmate’s relocation to another penal institution capable of guaranteeing the statutory inmate living space. (4) The head of the National Prison Administration’s department responsible for detention matters shall decide on the request within eight days, in a reasoned decision. If the statutory inmate living space can be guaranteed in another penal institution, the head of the National Prison Administration’s department responsible for detention matters will designate such a penal institution for serving the term of imprisonment; otherwise, it shall not issue any decision and shall inform the governor of the penal institution accordingly. In deciding on the inmate’s relocation, the inmate’s contact rights shall be taken into consideration. (5) Where the conditions of detention violating fundamental rights on account of the lack of the statutory inmate living space can be terminated neither within the penal institution in issue, nor by relocating the inmate to another penal institution, the governor of the penal institution shall take action to counterbalance the injury, provided that no such action has yet been taken by him and that the taking of such action does not hamper the performance of tasks, and provided that the conditions thereof are ensured. (6) The inmate and his defence counsel may apply to the penitentiary judge for a review against action taken under subsections (2) and (5) above, or for a failure to take action, and if relocation violates the inmate’s contact rights. The application for review shall have a suspensive effect on the relocation. Section 187/A (1) Where the purposes of the incarceration may be achieved in this way as well, if conditional release is imminent or if conditional release has been excluded, before the prospective date of his release the inmate may be placed in reintegration custody if he consents to being placed in such custody and if he has been sentenced to imprisonment for an offence committed with criminal negligence. The same applies to a person sentenced for an intentional offence, provided that he (a) was not convicted for a violent crime committed against another person specified in Article 459(1) point 26 of the Criminal Code, (b) was sentenced to enforceable imprisonment for the first time or is a repeat offender without being a recidivist, and (c) is serving a term of imprisonment not exceeding five years. (1a) Reintegration custody shall last (a) for a maximum of one year if the inmate was sentenced to a term of imprisonment for an offence committed with criminal negligence, (b) in cases other than the one specified in point (a), for a maximum of ten months. ... Section 390 (8) Where a pre-trial detainee or his counsel has lodged a complaint alleging conditions of detention violating fundamental rights, the governor of the penal institution shall also append a consent statement by the person authorised to make decisions in respect of the pre-trial detainee to the request made under Section 144/B(3) for the relocation of the pre-trial detainee to another penal institution. In such cases the complaint shall be determined and a decision made within thirty days. Section 436 ... (10) A compensation claim under Section 10/A, enacted by Section 22 of Act No. CX of 2016, may also be submitted by a convict or person detained on other grounds (a) in respect of whom the injury having resulted from conditions of detention violating fundamental rights ceased to exist within one year preceding the entry into force of the amendment, (b) who submitted an application to the ECHR alleging conditions of detention violating fundamental rights and the application was registered by the ECHR before the entry into force of the amendment, except where the inmate submitted his application to the ECHR after 10 June 2015 and by the date of receipt of the application, more than six months have elapsed since the termination of the violation. (11) For the purposes of subsection (10) the absolute time-limit specified in Section 10/A (4) shall start to run on the date of the entry into force of this provision. In determining claims submitted under subsection (10), Section 10/A(6) shall not be applicable and the time-limit specified for the proceedings before the penitentiary judge under Section 50(1)d) shall be extended by thirty days. (12) Where data are obtained indicating that before the entry into force of the compensation claim provided for in Section 10/A of Act No. CX of 2016, on account of conditions of detention violating fundamental rights (a) proceedings were instituted before a civil court, or (b) an application was submitted to the ECHR and the application was registered by the ECHR before the date of the entry into force of the amendment the penitentiary judge shall suspend the proceedings until the completion of these proceedings or, if there are proceedings pending before the ECHR, until notification by the ECHR of the referral of the case to national adjudication has been received.” 16. At its 1288th meeting held on 6-7 June 2017, in the ambit of the execution of the judgments Varga and Others and István Gábor Kovács v. Hungary, the Committee of Ministers of the Council of Europe adopted the following decision (CM/Del/Dec(2017)1288/H46-16; hereinafter, the “decision of June 2017”): “The Deputies 1. welcomed the authorities’ commitment to resolve the problem of prison overcrowding in Hungary and noted with interest that the substantive measures taken appear to be showing the first concrete results, in particular a decrease in the rate of overcrowding and a drop in the shortage of prison places; As regards individual measures 2. noted that a number of applicants are still detained in conditions not meeting the minimum standards for personal living space and reminded the authorities of their obligation to rectify the situation by ensuring that all applicants’ conditions of detention are in line with the Convention; invited them to provide the outstanding information, in particular, on other relevant aspects of the material conditions of detention where the available living space is between 3 and 4 m² per inmate; As regards general measures 3. noted with interest the further extension of the application of “reintegration custody”, the facilitation of an increase in the use of house arrest, and the slight decrease in the number of defendants placed in pre-trial detention; strongly encouraged the authorities further to pursue their efforts in this regard and to find all possible means “to encourage prosecutors and judges to use as widely as possible alternatives to detention and redirect their criminal policy towards reduced use of imprisonment”; invited them to submit updated statistical information on the impact and further promotion of alternative sanctions and the reduction of overcrowding; 4. welcomed the fact that, in response to the Varga and Others pilot judgment, the authorities have introduced both a preventive and a compensatory remedy aimed at guaranteeing genuinely effective redress for Convention violations arising from poor material conditions of detention, which took effect on 1 January 2017; invited them to provide further detailed information (including statistical data) on the implementation and functioning of these newly introduced remedies, notably in the light of the monitoring they will undertake in this context, and more concretely on the impact of the preventive remedy on the general problem of prison overcrowding; 5. welcomed the information received as regards the other violations concerned by this group and invited the authorities to submit the outstanding information; 6. in view of the European Court’s decision to suspend the examination of the similar pending applications until 31 August 2017, invited the authorities to provide the information expected by that date, at the latest.” | 0 |
test | 001-170453 | ENG | LTU | CHAMBER | 2,017 | CASE OF FRIDMAN v. LITHUANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1980 and lives in Vilnius. 6. On 5 March 2009 the applicant and his grandmother’s neighbour, 88year-old J.S., signed a contract on lifelong maintenance (išlaikymo iki gyvos galvos sutartis). Under that contract, J.S. transferred the rights to her apartment to the applicant, who undertook to take care of her until she died by providing her with food and medication, looking after her apartment, walking her dog, and providing any other necessary assistance. 7. In June 2009 J.S. lodged an application with a court to terminate the contract on the grounds that the applicant had not fulfilled his obligations and had not been taking proper care of her. The applicant objected to the termination and argued that he had complied with the terms of the contract. Relying on the testimony of several witnesses, on 29 January 2010 the Vilnius Regional Court, in an oral hearing at which both the applicant and J.S. were present, granted J.S.’s application and annulled the contract. 8. The applicant appealed, arguing that he had complied with the terms of the contract and that it should therefore not have been terminated. On 11 October 2010 the Court of Appeal held an oral hearing at which J.S.’s lawyer was present but the applicant and his lawyer were not. According to the Government, a notification letter was sent to the applicant on 21 September 2010. During the hearing the court noted that the applicant had been notified of the hearing (apie posėdį pranešta) and proceeded to examine the case in his absence. The Court of Appeal delivered its judgment on 22 October 2010, upholding the first-instance judgment in its entirety. 9. The applicant lodged a cassation appeal with the Supreme Court. He complained, inter alia, that he had not been duly notified of the hearing before the Court of Appeal and had thus been unable effectively to defend his interests. The applicant submitted that he had received the notification about the time and place of the hearing by standard (non-registered) post only on 14 October 2010, when he had found it in his letter box. However, on 4 November 2010 the Supreme Court refused to examine the applicant’s cassation appeal as raising no important legal questions. The applicant lodged two other cassation appeals, but on 6 December 2010 and 10 January 2011 the Supreme Court refused to examine them, citing the same grounds as previously. | 1 |
test | 001-150305 | ENG | RUS | CHAMBER | 2,015 | CASE OF ALBAKOVA v. RUSSIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1956 and lives in Ordzhonikidzevskoye, Ingushetiya Republic. 6. According to the applicant, on 10 July 2009 she was at her flat with her two daughters, her son Batyr Albakov and his wife. At about 5.30 a.m. four men arrived at the flat to carry out a passport check. They introduced themselves as officers of the Nazran District Department of the Interior. The men were armed, some were wearing camouflage uniforms and the rest were in civilian clothes. They spoke Russian, Chechen and Ingush. They checked the passports of the applicant’s family members and then announced that they were taking Batyr Albakov to the police station to complete the identity check. There were four other men waiting outside the building. At the time, Batyr Albakov was wearing black trousers and a black-and-white striped shirt with short sleeves. The applicant was not allowed to accompany him. 7. The men and Batyr Albakov left in two silver VAZ 2110 cars. The applicant’s neighbour, Ms M. Galayeva, witnessed their departure. The applicant was able to remember part of the registration number of one of the cars, which appeared to have been registered in the Chechen Republic. 8. On the same day the applicant saw several silver VAZ cars parked at the premises of the operational search unit (hereinafter “the ORB-2”). She also saw a group of men in camouflage uniforms exit the building. Among them she identified three of the men who had fetched her son. The men got into one of the cars and left before the applicant was able to talk to them. 9. On 21 July 2009 the applicant read on the internet that her son had been shot dead by State servicemen in the course of a counter-terrorist operation in a forest close to Arshty, a village in the Ingushetiya Republic. According to the website, Batyr Albakov had been a member of an illegal armed group and had been offering active armed resistance to the federal forces. It was claimed that a number of items including a Kalashnikov machine gun and its ammunition, one bullet shell, fragments of a spent grenade, a backpack containing clothes and the deceased’s passport were found at the scene. Mr M. Albakov, the uncle of the deceased, identified Batyr Albakov’s body in the morgue in Nazran. The deceased was then dressed in a camouflage uniform. 10. On the same day medical forensic expert O. conducted a forensic examination of Batyr Albakov’s body. He documented seven gunshot wounds which the deceased had sustained shortly before his death and considered them to be the cause of his death. He further noted five bruises on the deceased’s legs and arms, which the latter could have sustained shortly before his death. The camouflage uniform was removed, packed, sealed and admitted as evidence. The report made no mention of the presence of gunshot residue on the deceased’s body. 11. On 22 July 2009 the deceased’s naked body wrapped in a cellophane bag was taken to the applicant’s flat. The applicant, one of her daughters, her son’s wife and some other relatives saw multiple injuries on his body, including a gunshot wound to his chest, stab wounds, fractured bones, burns and bruises. His left arm was partially severed. The applicant’s daughter took photographs of Batyr Albakov’s body and injuries. 12. On 10 July 2009 the applicant addressed a complaint to the Suzhenskiy District prosecutor’s office in respect of her son’s disappearance. In her statement she expressed doubts as to whether the persons who had taken Batyr Albakov had been State agents and asked the prosecutor to open a criminal investigation into his disappearance. She also contacted the Suzhenskiy District department of the interior, alleging that her son had been abducted by unidentified State agents. On the same day she asked the Ministry of the Interior of the Ingushetiya Republic and the Ingushetiya Republic department of the Federal Security Service to provide her with information about her son’s detention. In response, the applicant was informed that her son had not been in the custody of the said authorities and that they had no information as to his whereabouts. 13. On 13 and 14 July 2009 an investigator at the prosecutor’s office questioned the applicant and her two daughters, L. and Z. Albakova, about the events of 10 July 2009. They gave some information as to the registration number of one of the vehicles used by the alleged abductors and claimed that they could identify the perpetrators. 14. On 23 July 2009 a senior investigator, G., of the district prosecutor’s office refused to open a criminal investigation into Batyr Albakov’s alleged abduction. In his decision the investigator summed up the statements provided by the applicant’s family as regards the events of 10 July 2009. He further noted that he had not yet received any materials concerning the operation conducted by law-enforcement officers at the applicant’s residence and concluded that there was no evidence to support her allegations. 15. On 24 July 2009 the applicant provided a statement to the prosecutor’s office of the Ingushetiya Republic, alleging that law-enforcement agents were implicated in her son’s abduction, torture and unlawful killing. Referring to the traces of decomposition on his body, she considered that her son had been executed by the law-enforcement agents before 21 July 2009. 16. On 27 July 2009 the head of the Sunzhenskiy district investigative division of the prosecutor’s office of the Ingushetiya Republic quashed the decision of 23 July 2009, noting that the inquiry conducted by the investigator was incomplete, and remitted the matter to him for further inquiry. 17. On 1 August 2009 the Sunzhenskiy District prosecutor’s office opened a criminal investigation concerning an unidentified person on charges of attempted killing of State agents, unlawful possession of firearms and participation in an illegal armed group. The criminal case file was given number 09600099. 18. On 24 August 2009 the investigator ordered a new forensic examination of Batyr Albakov’s body. 19. On 28 August 2009 O. conducted a new forensic examination of Batyr Albakov’s body. He reproduced verbatim the summary of his findings in his previous report of 21 July 2009, according to which the deceased had been wearing a camouflage uniform at the time of the examination. 20. On 10 September 2009 the investigator questioned forensic expert O., who confirmed that he had observed a number of penetrating gunshot wounds on the deceased. He added that he had seen bruises on the deceased’s arms and legs, which could have been caused by blows by, or collisions with, a blunt object. O. denied that the left arm of the deceased had been partially severed. Lastly, he concluded that the cause of death had been multiple gunshots which the deceased must have sustained some four to six hours prior to the examination of the body on 21 July 2009. 21. On 14 September 2009 the applicant again asked the prosecutor’s office of the Ingushetiya Republic to open a criminal investigation into the abduction and unlawful killing of her son by law-enforcement agents. 22. On 24 September 2009 the applicant was notified that her application had been added to criminal case no. 09600099. 23. On 1 November 2009 the investigator closed criminal case no. 09600099. Referring to the crime-scene examination report, forensic evidence (examination of the bullet shell, the machine gun and its ammunition and the fragments of the spent grenade found at the crime scene, and the examination of the deceased’s body) and the statements made by the applicant and her family, the investigator concluded that sufficient evidence collected in the course of the criminal investigation indicated that Batyr Albakov had attempted to kill a law-enforcement agent and the case should be closed in view of his death. 24. On 3 November 2009 the head of the Sunzhenskiy district investigative division of the prosecutor’s office of the Ingushetiya Republic quashed the decision of 1 November 2009 and re-opened the criminal investigation. In particular, he stated that the investigator had failed to verify the circumstances of Batyr Albakov’s abduction (the alleged perpetrators had not been questioned, the cars used by the persons who had abducted the deceased had not been identified, and Batyr Albakov’s alleged involvement in a terrorist organisation had not been confirmed). 25. On 1 December 2009 the investigator refused to institute criminal proceedings into the abduction of the deceased. The investigator concluded that Batyr Albakov had been released by “the persons who had abducted him” and that he had been a member of an illegal armed group who “had threatened the life of State agents” on 21 July 2009. 26. The applicant appealed against the decision of 1 December 2009. According to her, her son had been kidnapped by State agents. He had then been tortured and killed by them. In order to disguise those crimes, the agents had taken her son’s body to the forest and left it there together with a Kalashnikov machine gun, alleging that he had been killed when attempting to assault them. When the applicant had received her son’s body, it had already started to decompose and was covered with numerous injuries such as bruises, burns and cuts. His arm had been almost completely severed. 27. On 29 March 2010 the Sunzhenskiy District Court of the Ingushetiya Republic dismissed the applicant’s allegations as unsubstantiated, upholding the investigator’s findings of 1 December 2009. On 18 May 2010 the Supreme Court of the Ingushetiya Republic upheld the decision of 16 January 2010 on appeal. 28. According to the Government, in the course of the investigation into the activities of an illegal armed group, one of the suspects testified that Batyr Albakov had been a leading member of the group. 29. On 14 May 2012 the criminal investigation into the circumstance of Batyr Albakov’s death was re-opened. The investigator questioned two military officers, I. and M., who had participated in the operation conducted by Ministry of the Interior forces on 21 July 2009. They submitted that in the course of the operation Batyr Albakov had opened gunfire against their military unit and they had had to put an end to his attack and had shot back at him. He had died in the exchange of gunfire. The investigator also noted that he had been unable to determine whether the vehicles used by the alleged abductors had belonged to the State in view of the destruction of the relevant documentation. 30. On 15 June 2012 the investigator closed the investigation into the events of 21 July 2009. 31. On 12 October 2010 the applicant submitted the digital photographs of Batyr Albakov’s body taken by his sister to an independent expert centre. 32. On 1 November 2010 forensic medical experts examined the photographs. They considered that some of them could not be examined in view of their poor quality. From the remainder of the photographs, the experts discerned four wounds: a gunshot wound on the right side of the chest; a deep wound on the left shoulder joint, probably resulting from a blow by a blunt solid object; a surface wound on the left side of the chest (the experts ruled out the possibility of its being a gunshot wound); and a wound on the left side of the back, possibly caused by a hollow rectangular box-shaped object. In addition to the bruises documented in the official forensic report, the experts noted abrasions and bruises on the deceased’s chest. Lastly, they concluded that all the injuries visible in the photographs of Batyr Albakov must have been caused while he was still alive. 34. Referring to her account of the events of 11 July 2009 (see paragraphs 6-8), the applicant maintained that her son Batyr Albakov had been abducted, detained, tortured and executed by State agents. The Russian authorities had falsely accused him of being a member of an illegal armed group in an attempt to cover up State agents’ unlawful actions. 35. The Government denied any involvement of its agents in Batyr Albakov’s abduction. They argued that Batyr Albakov had been a member of an illegal armed group and considered that the abduction had been staged by his co-conspirators. In their opinion, the applicant’s allegations concerning her son’s abduction, detention and torture lacked any evidentiary basis. 36. A number of principles have been developed in the Court’s case-law as regards cases where the Court is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court refers to its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII). 37. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336; and Avşar, cited above, § 283), even if certain domestic proceedings and investigations have already taken place. 38. The Court reiterates that it has noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to convince the Court that the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005; and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005II). 39. The Court has previously found the Russian State authorities responsible for extra-judicial executions or disappearances of civilians in the Chechen Republic in a number of cases, even in the absence of final conclusions from the domestic investigation (see Khashiyev and Akayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006XIII (extracts); Estamirov and Others v. Russia, no. 60272/00, 12 October 2006; and Baysayeva v. Russia, no. 74237/01, 5 April 2007). It has done so primarily on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time. It has relied on references to military vehicles and equipment, on witness accounts, on other information on security operations and on the undisputed effective control of the areas in question by the Russian military. On that basis, it has concluded that the areas in question were “within the exclusive control of the authorities of the State” in view of military or security operations being conducted there and the presence of servicemen (see, for example, Zubayrayev v. Russia, no. 67797/01, § 82, 10 January 2008). 40. However, on the basis of the account of the events given by the applicant in the present case, the Court has little evidence on which to draw such conclusions. 41. The Court observes that the documents submitted by the Government provide no evidence of a security operation having taken place on 10 July 2009. As to the applicant’s submissions, she and her relatives witnessed the abduction of Batyr Albakov. In support of her argument that her son had been abducted by State agents, she argued that the men who had taken her son had been armed, spoke Russian, Chechen and Ingush and that some of them had been wearing camouflage uniforms and had arrived in civilian VAZ cars. 42. The Court is not convinced, however, that those details necessarily prove that the men were State servicemen. The applicant did not allege that the camouflage uniform some of the men had been wearing had borne any of the insignia characteristic of the uniform of State agents. It cannot be ruled out that the uniform, as well as the firearms carried by the men, could have been obtained by them via various, possibly illegal, channels. Furthermore, there are no witness statements confirming that Batyr Albakov was taken to any State agency after his abduction. In this connection, the Court also takes into account the applicant’s own statement to the prosecutor’s office in which she expressed doubts as to the affiliation of the kidnappers with any State agency (see paragraph 12 above). 43. Accordingly, the information in the Court’s possession does not suffice to establish that Batyr Albakov was kidnapped and held in detention by State agents. In such circumstances, the Court cannot attribute responsibility for the unlawful acts in the present case to the respondent State without additional evidence to that effect. 44. It has not, therefore, been established to the required standard of proof “beyond reasonable doubt” that State agents were implicated in the abduction and ensuing detention, if any, of Batyr Albakov. | 1 |
test | 001-140012 | ENG | RUS | CHAMBER | 2,014 | CASE OF ARKHESTOV AND OTHERS v. RUSSIA | 3 | Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);Non-pecuniary damage - finding of violation sufficient | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. Early in the morning of 13 October 2005 law-enforcement agencies in the town of Nalchik, the Republic of Kabardino-Balkariya, were attacked by a number of heavily armed people, who appear to have been local insurgents. The agencies included the Republican Department of the Ministry of the Interior, Centre T of the Main Department of the Ministry of the Interior, various district departments of the Ministry of the Interior, the Special Purpose Police Unit of the Republican Ministry of the Interior, various checkpoints of the Traffic Police, the Republican Department of the Federal Security Service, the Republican Department of the Federal Service for the Execution of Penalties and the office of the Border Guard Service of the Federal Security Service. Also, a few privately owned weapon shops were attacked. According to the Government, there were over two hundred and fifty participants in the attack. 6. The ensuing fight between the governmental forces and the insurgents lasted until at least 14 October 2005. 7. The first, second, third, fifth and seventh applicants submit that they are relatives of the people whose dead bodies were found following the events of 13 and 14 October 2005 (see paragraphs 8, 9, 10, 12 and 14). The fourth applicant claims that his son was killed by State agents in the village of Anzorey in the Leskenskiy District of the Republic of KabardinoBalkariya on 6 January 2006 (see paragraph 11). The sixth applicant claims that her son was killed by State agents in the town of Nalchik on 12 November 2005 (see paragraph 13). All of the applicants live in the Republic of Kabardino-Balkaria and, unless stated otherwise, are residents of Nalchik. 8. The first applicant, Mr Khusen Kadirovich Arkhestov, born in 1954, referred to the death of his son Mr Lokman Khusenovich Arkhestov, born on 30 December 1989. 9. The second applicant, Mrs Kulisum Zhantuganovna Balkizova, born in 1956, referred to the death of her son Mr Kantemir Safudinovich Balkizov, born on 29 March 1982. 10. The third applicant, Mrs Asiyat Kunakovna Guziyeva, born in 1976, referred to the death of her husband Mr Arsen Gumarovich Margushev, born on 6 January 1979. 11. The fourth applicant, Mr Askarbi Khamidovich Zhekamukhov, born in 1955, referred to the death of his son Mr Albert Askarbiyevich Zhekamukhov, born on 23 November 1980. 12. The fifth applicant, Mr Arsen Khazhmastafovich Tukov, born in 1939, referred to the death of his son Mr Anatoliy Arsenovich Tukov, born on 3 August 1974. 13. The sixth applicant, Mrs Mariya Latifovna Khuranova, who was born in 1955 and lives in the village of Shalushka, referred to the death of her son Mr Azamat Anatolyevich Brayev, born on 29 July 1975. 14. The seventh applicant, Mrs Lyuda Khazhmuradovna Shogenova, who was born in 1965 and lives in the village of Zalukokoazhe, referred to the death of her brother Mr Aslan Khadzmuratovich Shogenov, born on 26 January 1965. 15. The Government did not dispute this information. 16. It appears that on 13 October 2005 the authorities instituted criminal proceedings no. 25/78-05 in connection with the attack in Nalchik. 17. In the course of the investigation it was established that between 1999 and February 2005 a group of individuals including A. Maskhadov, Sh. Basayev, I. Gorchkhanov, A. Astemirov, Abu-Valid Khattab and AbuDzeit, had formed a terrorist group. It was this group that organised the attack. Thirty-five law-enforcement officers and fifteen civilians were killed, whilst one hundred and thirty-one law-enforcement officers and ninety-two civilians were injured. Massive damage was done to property. 18. The applicants did not have any procedural status in the criminal proceedings in case no. 25/78-05. 19. Immediately following the attack, an unspecified number of people (including some of the applicants) signed collective petitions requesting various officials, including the prosecutors, to return the bodies for burial. 20. Between the end of October 2005 and until at least April 2006 the applicants received replies from the prosecution and other authorities informing them that they would receive definite answers once the investigation into the events had been completed. 21. Attempts by some of the applicants to challenge these replies in the domestic courts were unsuccessful, as they were rejected as premature both at first instance and on appeal. 22. On 13 April 2006 the investigation authority terminated the criminal proceedings in respect of the ninety-five deceased on account of their deaths, having taken an individual decision in respect of each deceased person. Each decision described the degree and character of their individual involvement and concluded that these persons had taken part in the attack and died as a result of the ensuing fight. The decisions described the circumstances of death of the persons referred to by the applicants; they are set out below. The respondent Government have submitted the investigation case file in respect of the circumstances of death of each of the deceased persons. 23. The son of the first applicant, Lokman Khusenovich Arkhestov, was found to have taken part in the attack of 13 October 2005. He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of the Federal Service for the Execution of Penalties. 24. The son of the second applicant, Kantemir Safudinovich Balkizov, was found to have taken part in the attack of 13 October 2005. He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of the Ministry of the Interior. 25. The husband of the third applicant, Arsen Gumarovich Margushev, was found to have taken part in the attack of 13 October 2005. He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of the Ministry of the Interior. 26. The son of the fourth applicant, Albert Askarbiyevich Zhekamukhov, was found to have taken part in the attack of 13 October 2005 and subsequently to have escaped from Nalchik and gone into hiding. He was located in the village of Anzorey in the Leskenskiy District of the Republic of Kabardino-Balkariya on 6 January 2006. After rejecting a call to give himself up, he died as a result of a failed attempt to arrest him. 27. The son of the fifth applicant, Anatoliy Arsenovich Tukov, was found to have taken part in the attack of 13 October 2005. He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of the Ministry of the Interior. 28. The son of the sixth applicant, Azamat Anatolyevich Brayev, was found to have taken part on 12 October 2005 in an exchange of gunfire with police officers preceding the main attack of 13 October 2005. He belonged to the same group as the attackers, but was detected by police officers by chance one day prior to the attack. 29. The brother of the seventh applicant, Aslan Khazhmuratovich Shogenov, was found to have taken part in the attack of 13 October 2005. He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of the Ministry of the Interior. 30. The Prosecutor General’s Office notified the applicants of the above decisions on 14 April 2006, but no copies of the decisions in question were attached to the notifications. 31. In the Strasbourg proceedings the Government submitted copies of the decisions of 13 April 2006 in respect of each of the applicants’ relatives. 32. The applicants were furnished with death certificates in respect of their relatives: 33. According to the Government, ninety-five corpses of the presumed terrorists were cremated on 22 June 2006. 34. The cremation took place pursuant to a decision not to return the bodies of the deceased to their families, dated 15 May 2006. In contrast to the individual decisions of 13 April 2006, the decision of 15 May 2006 referred to the deceased persons collectively. The decision stated, in particular: “... the head of investigation group ... [official S.], having examined the materials in case file no. 25/78-05, established: ... [that] in the course of the counter-terrorist special operation aimed at tackling the attack, 95 terrorists were eliminated, namely: [the decision names among the deceased all of the persons referred to by the applicants] At present all forensic expert examinations, including molecular genetic examinations, involving ... the corpses of the deceased terrorists, have been finalised and their identities have been established by way of proper procedure. By decisions of 13-14 April 2006 the criminal proceedings in respect of these 95 persons, who had committed ... the attack on various sites and law-enforcement agents of the town of Nalchik ... was discontinued on account of their deaths, under Article 27 part 1 subpart 2 and Article 24 part 1 subpart 2 of the Code of Criminal Procedure. Pursuant to section 14(1) of the Federal Interment and Burial Act (Law no. 8-FZ) ‘the interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed.’ Pursuant to part 3 of Decree no. 164, ‘On interment of persons whose death was caused by the interception of terrorist acts carried out by them’, approved by the Government of the Russian Federation on 20 March 2003, ‘the interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ...’. [In view of the above, official S. decided to:] bury the bodies of the 95 terrorists ... forward the decision to the President of the Republic of Kabardino-Balkariya for execution; inform [his superiors] of this decision”. 35. The Government alleged that the authorities had notified the applicants of the decision of 15 May 2006, but acknowledged that no copy of that decision had been provided to them. 36. It appears that on several occasions the Prosecutor General’s Office informed the applicants, in substance, of the refusal to return the bodies. It does not appear that the applicants were furnished with a copy of the decision of 15 May 2006. 37. The applicants’ initial attempts to obtain judicial review of the decisions of 13 April and 15 May 2006 were unsuccessful, as the courts refused to examine their arguments. 38. The relatives of those who had taken part in the attack of 13 October 2005 contested the legislation governing the interment of terrorists before the Constitutional Court. 39. On 28 June 2007 the Constitutional Court delivered a judgment (no. 8-P) in which, in essence, it rejected their complaints alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation of 20 March 2003 were unconstitutional. The ruling stated, in particular, that the impugned legal provisions were, in the circumstances, necessary and justified. The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question: “... At the same time, the interest in fighting terrorism, in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act, governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph 4 of Recommendation 1687 (2004) of the Parliamentary Assembly of the Council of Europe on combating terrorism through culture, dated 23 November 2005, in which it was stressed that extremist interpretations of elements of a particular culture or religion, such as heroic martyrdom, self-sacrifice, apocalypse or holy war, as well as secular ideologies (nationalist or revolutionary) could also be used for the justification of terrorist acts. 3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms. The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension. In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity. In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. ...” 40. The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards, such as effective judicial review, were in place to protect individuals from arbitrariness. The court noted that Articles 123-127 of the Code of Criminal Procedure provided for such review. 41. In sum, the Constitutional Court upheld the impugned provisions as being in conformity with the Constitution but at the same time interpreted them as requiring that the authorities refrain from burying bodies unless a court had confirmed the competent authority’s decision. It reasoned as follows: “... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify the lawfulness and well-foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... and of the time, location and cause of death ...” 42. Judge G.A. Gadzhiyev issued a separate opinion in which he agreed that the impugned provisions were in conformity with the Constitution but held a different view as to how they should be interpreted. The opinion stated as follows: “... if the relevant law-enforcement agencies find, as a result of a preliminary investigation, that a terrorist act has been committed and that a given person was involved, but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act, and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health, morals, rights, lawful interests and safety of others, they are entitled to take a decision refusing to hand over the body and applying special arrangements for burial. At the same time, in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him, the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased’s identity, the time and place of death, the cause of death, the place of burial and the data necessary for the proper identification of the grave (a given location and number). The burial must take place with the participation of the relatives, in accordance with custom and tradition and with humanitarian respect for the dead. The administrative authorities of a State governed by the rule of law must respect the cultural values of a multi-ethnic society, transmitted from generation to generation. ...” 43. Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as incompatible with the Constitution. In particular, he noted: “... The impugned norms banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations ... The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...” 44. After the Constitutional Court’s judgment of 28 June 2007 the domestic courts apparently changed their approach and agreed to review the formal lawfulness of the decisions of 13 April and 15 May 2006. 45. The applicants brought the following court proceedings in connection with the relevant decisions. 46. As a result of the above-mentioned sets of proceedings the applicants succeeded in having quashed the decisions of 13 April and 15 May 2006 in part. It appears that the domestic courts subsequently changed their position and the relevant judgments were later quashed by way of supervisory review. After these changes, the courts still could not review the need for application of the measures set out in section 14 (1) of the Interment and Burial Act and Decree no. 164 of 20 March 2003 in individual cases. 47. According to the applicants who took part in the identification of the bodies, for several days following the events of 13 and 14 October 2005 the corpses (except for the bodies of the relatives of the fourth and sixth applicant, who died at other dates and were identified later) were kept in the town morgue and other locations in wholly unsatisfactory conditions. In particular, the bodies gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of one other. 48. In response to a letter from the applicants requesting an explanation for the appalling storage conditions, the Prosecutor General’s Office stated in a letter of 14 April 2006 that until a procedural decision in respect of the corpses had been taken they had been kept in specially equipped rooms in refrigerated chambers set to the appropriate temperature. The authorities refused to disclose the locality where the bodies were stored. 49. According to the Government, the following applicants participated in the identification procedure in person: 50. According to the applicants, they had access to the bodies both in the Nalchik town morgue and in two refrigerator wagons parked on a plot of land belonging to the Ministry of the Interior. Provision of access to the bodies was random, as not everyone who wanted to take part in the identification process was admitted. In some cases the provision of access was not properly documented. Since the provision of access was limited, the relevant facilities were usually surrounded by crowds of relatives of the deceased. 51. The Government submitted that the corpses in question had been initially held in the Nalchik town morgue. Between 14 and 18 October 2005 the applicants examined the corpses and the clothing. Thereafter the bodies were placed in two refrigerator wagons. On 1 November 2005 the wagons were moved to the town of Rostov-on-Don for molecular genetic examinations and on 22 June 2006 all bodies were cremated. Between 13 and 22 October 2005 the person in charge of the identification procedure was the head of the investigation group investigator P. As of 22 October 2005 he was replaced by investigator S. The Government also acknowledged that immediately after the attack no facilities had been available to keep the bodies. 52. According to the Government’s most recent submissions, the overall number of human casualties as a result of the events of 13 October 2005 was twelve civilians, thirty-five police and law-enforcement officers and eighty-seven participants in the attack. 53. For a summary of the relevant domestic law, see Sabanchiyeva and Others v. Russia, no. 38450/05, §§ 33-37 and 65-90, ECHR 2013 (extracts) and Maskhadova and Others v. Russia, no. 18071/05, §§ 116-146, 6 June 2013. 54. For a summary of other relevant sources referred to by the applicants, see Sabanchiyeva and Others, cited above, §§ 91-96 and also Maskhadova and Others, cited above, §§ 147-150. | 1 |
test | 001-158877 | ENG | MLT | CHAMBER | 2,015 | CASE OF MAHAMED JAMA v. MALTA | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty) | André Potocki;Angelika Nußberger;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano | 5. The applicant was (to her knowledge) born in 1996 and at the time of the introduction of the application was detained in Lyster Barracks, Ħal Far. 6. The applicant entered Malta in an irregular manner by boat on 27 May 2012. Upon arrival, she was registered by the immigration police, given an identification number (12H-006), and presented with two documents in English, one containing a Return Decision and the other a Removal Order. 7. The Return Decision stated that she was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that her stay was being terminated and that she had the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the applicant that she would remain in custody until removal was effected, and that an entry ban would be issued against her. The two documents further informed the applicant of her right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. 8. According to the applicant, the contents of the decision in English were not explained to her, although she could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other. 9. The applicant was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language she did not understand. According to the Government the applicant did not request a booklet in another language. 10. In accordance with Article 14(2) of the Immigration Act (see Relevant domestic law), the applicant was detained in Lyster Barracks. 11. During the registration process upon her arrival, in the absence of an interpreter, the applicant’s age was recorded as twenty-six (born 1986). She claims to have told the authorities that she was sixteen years old. According to the Government, it emerged from the authorities’ records (not submitted to the Court) that the applicant declared that she was born in 1986. 12. On 30 May 2012 the applicant appealed against the Removal Order and Return Decision. By the date of the introduction of the application (4 February 2013), no date had been set for her appeal hearing by the IAB. 13. A few days following her arrival the applicant was called for an information session provided by the staff of the Office of the Refugee Commissioner. She was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant domestic law below). She stated on the form that she was sixteen years old. 14. On an unspecified date some two months after her arrival in Malta, the applicant was called for an interview with a member of Agency for the Welfare of Asylum Seekers (AWAS) staff, who informed her that as she had claimed to be sixteen years old she would be interviewed by three members of AWAS staff with a view to assessing the veracity of her claim that she was a minor. 15. About a week later, three people from AWAS interviewed her. During the interview a male detainee provided interpretation services. After the interview they informed her that as they could not confirm her minor age through the interview they would send her for a further age verification (FAV) test - an X-ray of the bones of the wrist. The applicant was taken for the FAV test about two months after her interview, on 5 October 2012. 16. At the beginning of November, as the applicant had not received any decision from the AAT, she asked a woman from AWAS (who was visiting the detention centre to conduct interviews with other detainees who had health problems) whether she knew anything about her case. The woman told her that her X-ray was being assessed and if she was found to be a minor she would be released soon. Some three weeks later, on 22 November 2012, some other people from AWAS went to the centre and told her that according to the test she was not a minor but an adult. During the latter meeting a fellow (female) detainee provided translation. 17. By the date of the lodging of the application the applicant had not received a written decision informing her of the outcome of the age assessment procedure. According to the Government a decision on the applicant’s age was taken on 14 January 2013; no date was submitted regarding notification. The Government submitted that since no care order was issued the applicant was obviously not a minor. 18. The applicant was detained in Hermes Block in Lyster Barracks (see paragraph 10 above), in conditions which she considered prison-like and basic. The Government contested this allegation. 19. She explained that the Block is divided into five self-contained zones (one on the ground floor, two on the first floor and two on the second floor) and four of the zones (B,C,D,E) were virtually identical. For the first few days of her detention she had been held in Zone E which at the time accommodated families (i.e. couples with or without children), and then she was moved to Zones C and D with other single women. 20. These zones contained a number of dormitories (containing bunk beds but no lockers or cupboards for personal belongings), ten showers and toilets, a small kitchen with one or two hot plates and a fridge (no further storage for food, which was stored in open boxes accessible to insects, was available), and a common room with six basic metal tables and benches screwed to the ground, together with a television. Blankets hanging from bunk beds were the only means of privacy. 21. Access to the zones was through metal gates which were kept locked all day, and detainees could leave the zone for one and a half hours per day, which they could spend in a small dusty yard. Windows were barred and most of them glazed with opaque Perspex (which was removed in the summer months for air, though they then let air through in the cold winter months). On the one hand, in summer the facility was often crowded and the heat would become oppressive despite the presence of ceiling fans. On the other hand, in winter it was unbearably cold as the facility was not heated and, moreover, was exposed to the elements as there were no adjoining buildings. 22. The applicant considered that the facility was shared by too many people – in summer the applicant’s dormitory (one out of three in the zone) was shared by twenty women – and agreement amongst so many different persons having cultural and linguistic differences was difficult. However, at the time of the introduction of the application, the applicant was in less crowded conditions, sharing an entire zone with only twenty-five other women, most of whom were Eritrean and Somali. 23. The applicant noted that since her arrival she had only been provided with two bed sheets, a small towel, a blanket, a T-shirt, one pillow and a pillow case, a few items of underwear and a pair of flip-flops, as well as a plastic plate, cup, and set of cutlery. Other items of clothing were distributed sporadically. She stated that she was never provided with a quilt, a bra or running shoes. While toilet paper was distributed on a monthly basis, certain basic items such as sanitary pads were missing. In winter detainees were not systematically provided with warm clothes and closed shoes, which were distributed according to what was received by way of donation and which was not sufficient to supply the needs of all detainees. Although blankets were distributed to everyone, the building was not heated and winter months were unbearably cold. 24. Detainees had little to do all day, and only limited access to open air. In particular, the applicant noted that she was let out into the small dirty yard for the first time only after a few months of detention. While in the yard, other male detainees called out names and picked on the women from the windows of their rooms overlooking the yard. The applicant referred to the report “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26 – 30 September 2011”, May 2012 (see paragraph 45 below). 25. She also noted that although telephone cards were distributed (each of 5 Euro (EUR)), the credit they contained was often insufficient to make long distance calls and no cheaper ways of keeping contact with the family or outside world were available as they had no internet access. By the time she lodged her application she had received EUR 25 in credit. The applicant also considered inappropriate that detainees were given the same soap to use for their bodies, hair, clothes and floor. The applicant further made reference to an incident with a detention officer who had pushed her down the stairs and tried to forcefully resuscitate her by slapping her and grabbing different parts of her face leaving her in pain – she, however, admitted that she could not recognise the officer in question and that she had feared reprisal had she reported the matter. 26. Furthermore, as could be seen from the results of the Jesuit Refugee Service (JRS) Europe study on detention of vulnerable asylum seekers, the physical conditions of detention and their impact on the physical and mental well-being of detainees were exacerbated by other factors. These factors included: length of detention, lack of constructive activities to occupy detainees, overcrowding, limited access to open air, difficulties in communication with staff and with other detainees, and lack of information about one’s situation. Moreover, there was a lack of any real possibility of obtaining effective redress and inmates knew that detention was not serving any useful purpose and was in no way proportionate to the aim to be achieved. 27. The applicant submitted that all of those objective factors had had a particular impact on her because of her personal circumstances, particularly her young age, her inability to communicate in anything but Somali and the fact that as a young woman she was detained in a facility administered almost exclusively by men. 28. On 24 January 2013 the applicant was called for an interview with the Refugee Commissioner. By means of a decision of the Refugee Commissioner of 2 February 2013, the applicant was granted subsidiary protection in Malta. She was notified of this decision and released on 7 February 2013. | 1 |
test | 001-184521 | ENG | RUS | CHAMBER | 2,018 | CASE OF VASILEVSKIY AND BOGDANOV v. RUSSIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 5. Mr Vasilevskiy was born in 1973 and lives in Blagoveshchensk. 6. Mr Vasilevskiy stayed in detention for longer that he should have because the sentencing courts did not count the time he had spent in pre-trial detention towards the overall duration of his sentence, in breach of the applicable domestic provisions. In response to Mr Vasilevskiy’s repeated complaints, on 7 May 2007 the Belogorskiy District Court in the Amur Region corrected the error and acknowledged that his sentence had expired on 26 February 2006. Mr Vasilevskiy was released on 13 June 2007. He sought compensation for 472 days during which he had been wrongfully detained. 7. On 13 December 2013 the Blagoveshchensk Town Court in the Amur Region awarded him 150,000 Russian roubles (RUB – 3,320 euros (EUR) at the then-applicable exchange rate) in respect of non-pecuniary damage. Mr Vasilevskiy lodged an appeal, submitting in particular that that sum was substantially lower than that which the Court would have awarded in a similar case. 8. On 28 February 2014 the Amur Regional Court dismissed his appeal. As regards the level of compensation, it held that the Town Court had “had regard to the case-law of the European Court but had correctly determined the amount of compensation in respect of non-pecuniary damage in the light of the requirements of Russian law”. 9. Mr Bogdanov was born in 1981 and lives in the Novgorod Region. 10. On 30 March 2007 Mr Bogdanov was convicted of supplying drugs on four separate occasions in 2006 and sentenced to twelve years’ imprisonment. On 20 March 2013 the Supreme Court of the Russian Federation acknowledged, referring to the Court’s case-law under Article 6 of the Convention, that the police had incited Mr Bogdanov to commit the last three of the four offences. It declared that part of evidence inadmissible, voided his conviction in that part, reduced his sentence to six years’ imprisonment and ordered his immediate release. 11. By that time, Mr Bogdanov had spent 119 days in custody over and above the adjusted six-year sentence. He sought to recover damages in respect of his wrongful imprisonment. 12. On 13 March 2014 the Valdayskiy District Court in the Novgorod Region awarded him RUB 80,000 (EUR 1,576). However, on 9 July 2014 the Novgorod Regional Court reduced the award to RUB 15,000 (EUR 324), referring to the “circumstances in which the criminal proceedings had been instituted” and the “category of offence that Mr Bogdanov had been charged with”. On 30 September 2014 the Regional Court rejected a cassation appeal lodged by Mr Bogdanov. | 1 |
test | 001-168816 | ENG | FRA | CHAMBER | 2,016 | CASE OF KIRIL ZLATKOV NIKOLOV v. FRANCE | 3 | Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer;Judge or other officer exercising judicial power) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev | 5. The applicant was born in 1971. 6. In connection with an investigation into an international prostitution ring, measures were taken to intercept telephone conversations in accordance with Article 706-95 of the Code of Criminal Procedure, on one mobile telephone line in particular: from 5 p.m. on 6 August 2009 until 8.39 p.m. on 19 August 2009, on the basis of an order of 5 August 2009 by the Chambéry judge responsible for matters concerning civil liberties and detention (“the liberties and detention judge”), authorising interceptions for two weeks; and from 28 August 2009 until 11 September 2009, on the basis of an order of 26 August 2009 by the same judge. Two conversations with a person using a mobile phone belonging to a certain I.K., which were recorded on 4 September 2009, appeared to incriminate the applicant: one between a woman identified as R.G. and a man known as Kiril, later identified as the applicant, and the other between the same woman and another man, in which the same Kiril was referred to in terms suggesting that he was involved in the prostitution ring. 7. A judicial investigation was opened on 2 October 2009 into alleged offences of living on the earnings of prostitution with aggravating circumstances, committed as part of an organised gang; trafficking in human beings, committed as part of an organised gang; and criminal conspiracy. A warrant for the applicant’s arrest was issued on 28 July 2010 by Judge N.C., the vice-president responsible for the investigation at the Lyons tribunal de grande instance. After being arrested in Germany pursuant to the warrant, which had in the meantime been converted into a European arrest warrant, the applicant was handed over to the French authorities at 11.45 a.m. on 16 December 2010; he was then brought before the Strasbourg public prosecutor and immediately placed in administrative detention in Strasbourg. At 10.56 a.m. on 20 December 2010 he was brought for the first time before B.G., the investigating judge dealing with the case, who placed him under formal investigation for the above-mentioned offences. At about 5 p.m. on the same day, the Lyons liberties and detention judge, to whom the matter had been referred by the investigating judge, interviewed the applicant and remanded him in custody pending trial. 8. Although the alleged offences were classified as serious crimes, the interviews and confrontations carried out during the investigation were not recorded, by virtue of the exception provided for in the seventh paragraph of Article 116-1 of the Code of Criminal Procedure, as applicable at the material time. ... 13. On 17 June 2011 the applicant applied to the Investigation Division of the Lyons Court of Appeal to have various procedural steps declared void, including the order for his detention, the interviews and confrontations carried out during the investigation and the interception of various telephone conversations. He submitted two requests for preliminary rulings on constitutionality, concerning respectively the seventh paragraph of Article 64-1 and the seventh paragraph of Article 116-1 of the Code of Criminal Procedure, pursuant to which no video recording had been made of the interviews and confrontations. 14. On 6 September 2011 the Investigation Division dismissed most of the application to have the procedural steps declared void (except for one point concerning the interception of telephone conversations), in particular restating the reason given in its previous decision of 13 January 2011. In two further judgments delivered on the same day, it referred the requests for preliminary rulings on constitutionality to the Court of Cassation. 15. On 14 September 2011 the applicant lodged an appeal on points of law, relying in particular on Article 5 § 3, Article 6 § 1 and Article 14 of the Convention and the constitutional principle of equality. 16. On 18 January 2012 the Court of Cassation referred the requests for preliminary rulings on constitutionality to the Constitutional Council and deferred judgment pending the Council’s decision. 17. In a decision of 6 April 2012 (no. 2012-228/229 QPC) the Constitutional Council declared the seventh paragraphs of Articles 64-1 and 116-1 of the Code of Criminal Procedure unconstitutional, holding that by providing for an exception to the rule of compulsory video recording of interviews in connection with serious offences where such interviews were carried out during preliminary or judicial investigations into serious offences relating to organised crime or undermining the fundamental interests of the nation, the impugned provisions infringed the principle of equality. It pointed out that the abrogation of those provisions would take effect from the publication of its decision and would apply in the case of persons in police custody or under formal investigation who were questioned or interviewed from that date onwards. 18. In a judgment of 10 May 2012 the Criminal Division of the Court of Cassation dismissed the applicant’s appeal on points of law. ... It rejected his argument that there had been violations of the Convention (he had relied on Articles 6 and 14 of the Convention and, more broadly, the right to a fair trial and the prohibition of discrimination) and the Constitution as a result of the application of the seventh paragraphs of Articles 64-1 and 116-1 of the Code of Criminal Procedure in his case. Firstly, it held that the Constitutional Council had specified that the abrogation of the provisions in question would apply only in the case of persons in police custody or under formal investigation who were questioned or interviewed following the publication of its decision, so that his argument had in that respect become devoid of purpose. Secondly, it observed that the applicant had not been questioned in police custody and that, although his interviews by the investigating judge had not been recorded on video, “this did not result in any infringement of his rights under the Convention, be it his defence rights or the right to a fair trial, seeing that he was given the option of receiving legal assistance, and had the opportunity to review the manner in which the questions and answers had been transcribed in the record, which had been approved by a registrar, to ask for any corrections to be made and to challenge, at any stage of the proceedings, the meaning and scope of his statements as transcribed”. 19. ... Lastly, it held that “it is not possible for anyone other than the party concerned to complain of a breach of the substantive requirements governing police custody, or of the lack of a video recording of police questioning or interviews by the investigating judge, in support of an application to have a procedural step or document declared void”; accordingly, the applicant was not entitled to object that the judgment appealed against had stated that there was no cause to declare void any police questioning or interviews by the investigating judge concerning individuals other than himself. 20. In a judgment of 28 October 2011 the Lyons Criminal Court found the applicant guilty of the alleged offences, although it dismissed the charge of trafficking in human beings. It sentenced him to four years’ imprisonment and a fine of 10,000 euros (EUR). 21. In a judgment of 20 July 2012 the Lyons Court of Appeal upheld the judgment as to the issue of guilt and sentenced the applicant to six years’ imprisonment with a minimum term of two-thirds of the sentence, as well as imposing a fine EUR 10,000 and a five-year exclusion order from the départements of Savoie and Bas-Rhin. 22. An appeal on points of law by the applicant – whose sole argument was that French criminal law was not applicable – was rejected by the Criminal Division of the Court of Cassation in a judgment of 12 June 2013. 23. The applicant was released on 12 June 2015 after serving his sentence. ... | 0 |
test | 001-157760 | ENG | BIH | CHAMBER | 2,015 | CASE OF MEDŽLIS ISLAMSKE ZAJEDNICE BRČKO AND OTHERS v. BOSNIA AND HERZEGOVINA | 3 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä | 5. In May 2003 the applicants wrote a letter to the International Supervisor for BD, to the President of the Assembly of BD and to the Governor of BD concerning the appointment of a director of the BD public radio station. They referred, in particular, to M.Sʼs candidacy for that position. M.S. was the entertainment editor at the BD public radio at the material time. The relevant part of the letter reads as follows: “We acknowledge and appreciate your support and the effort you put in creating a multiethnic radio...Unfortunately, it appears that there was a major oversight at the very beginning of this important venture. The panel for the selection of the director [of the radio] was created in contravention of the Statute of Brčko District. It is composed of three Serb members, one Croat and one Bosniac. Thus, yet again, the Statute, which requires proportional representation of the three constituent peoples in public institutions, was disregarded...Unfortunately, nothing has been done to correct this. The unofficial information we received to the effect that Ms M.S. was proposed for the position of the radio director by the Serb members of the Panel... although the former director was Bosniac, confirms the above. This proposal is unacceptable, all the more so because it concerns a person who lacks the professional and moral qualities for such a position. According to the information we received... in an interview published in “NIN”, discussing the destruction of mosques in Brčko, Ms M.S. said that Muslims were not people, that they did not possess culture and that, accordingly, destroying mosques could not be seen as a destruction of cultural monuments, ... on the radio’s premises ... she made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan, ...on the radio’s premises she covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska, as the editor of the entertainment programme she banned broadcasting of sevdalinka arguing that that type of song had no cultural or musical value. We firmly believe that the above-described acts absolutely disqualify Ms M.S. as a candidate for the position of the director of the multiethnic Radio and Television of Brčko District... We hope that you will act accordingly... In the absence of any action on your part, we will be forced to contact the media as well as the other competent national and international bodies.” 6. Shortly thereafter the letter was published in three different daily newspapers. 7. On 29 May 2003 M.S. initiated civil defamation proceedings against the applicants and claimed compensation of 50,000 convertible marks (BAM). M.S submitted that she had learned about the content of the letter shorlty after it had been sent by the defendants, but that she did not know who gave it to the media. After the letter was published, the Governor of BD annulled the proceedings for the appointment of a director of the public radio station. 8. On 29 September 2004 the BD Court of First Instance (“the Court of First Instance”) rejected the claim. It held that the applicants could not be liable for the alleged defamation because they had not published the letter in the media. The relevant part of the judgment reads as follows: “From the defendants’ letter, it is clear that it was privately sent to the Governor, to the President of the Assembly and to the Supervisor for Brčko District...and it was not sent to the media... [T]he aim of the letter was not dissemination of unverified information to public, but bringing the attention of the competent authorities to certain issues and to enable them to draw certain conclusions on verification of that information. Having examined the articles published in the media, the court concludes that none of them was published by the defendants in this case.” 9. M.S. appealed against that judgment to the BD Appellate Court ("the Appellate Court"). On 16 May 2005 the Appellate Court quashed the judgment of 29 September 2004 and decided to hold a new hearing. 10. On 11 July 2007 after having examined several witnesses (including the two employees of the BD public radio from whom the applicants received the information presented in their letter), the Appellate Court found that the contested letter contained some value-judgments but also the statements of facts which had been untrue and damaging to M.S.ʼs reputation. It held that for the liability for defamation to be established under section 6(1) of the Defamation Act 2003 it was irrelevant that the applicants did not publish the letter. The Appellate Court ordered the applicants to inform the International Supervisor for BD, the President of the Assembly of BD and the BD’s Governor about the retraction of their statements within 15 days, in default of which they had to pay BAM 2,500 in damage to M.S., together with default interest at the statutory rate from 11 July 2007. They were further ordered to publish the judgment at their own expense. 11. On 15 November 2007 M.S. filed a request for the enforcement of the above judgment to the Court of First Instance. She proposed, inter alia, that the court send the judgment of 11 July 2007 for publication at the applicants’ expense. 12. On 5 December 2007 the Court of First Instance issued a writ of execution. 13. On 12 December 2007 the applicants paid BAM 2,825 (approximately 1,445 euros (EUR)) by way of the enforcement of the judgment of 11 July 2007. 14. On 27 March 2009 the Court of First Instance closed the enforcement proceedings. 15. In the meantime, on 15 October 2007 the applicants complained about the violation of their right to freedom of expression to the Constitutional Court of Bosnia and Herzegovina ("the Constitutional Court"). 16. On 13 May 2010 the Constitutional Court held that the interference with the applicants’ right to freedom of expression was “necessary in a democratic society” and concluded that there had been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the Convention. The relevant part of the decision reads as follows: “34. At the outset the Constitutional Court notes that the appellants did not deny that their liability for defamation was based on the Defamation Act 2003 and that, therefore, the interference with the right [to freedom of expression] protected by Article 10 of the European Convention was prescribed by law... 35. The impugned judgment was delievered in a civil defamation proceedings initiated by the plaintiff against the appellants...accordingly, the interference pursued the legitimate aim of the protection of the “reputation or rights of others”. 36. What remains to be determined is whether the interference complained of was “necessary in a democratic society”.... ... 38. The Constitutional Court considers that the Appellate Court established without doubt that the impugned factual statements about M.S. were false and that the appellants were liable for defamation. From the submissions of the two witnesses, from whom the appellants received the information presented in the letter [concerning the part of the letter in which it was stated that M.S. ‘made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan and as the editor of the entertainment programme she banned broadcasting of sevdalinka arguing that that type of song had no cultural or musical value’], the Appellate Court established that there was an evident inconsistency between that what had been said to the appellants and that what they had reported in the letter. Furthermore, the statement from the impugned letter that M.S. gave an interview concerning the destruction of mosques was refuted by another witness who submitted that a subsequent verification had revealed that M.S. had not been the author of the said interview. Finally, the appellants failed to prove the veracity of the allegations that M.S. covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska. In view of the above, the Constitutional Court considers that in the present case the right of the appellants to report irregularities in the conduct of an official to a body competent to deal with such complaints cannot be premised on ascertaining manifestly untrue facts which go beyond the limit of acceptable criticism of civil servants. Accordingly, the court considers that the Appellate Court correctly concluded that there was ‘a pressing social need’ in the present case [for the interference with the appellants’ right to freedom of expression]. 39. Furthermore, the Constitutional Court notes that the Appellate Court awarded non-pecuniary damage to M.S. because her reputation was affected by the untrue statements made in the impugned letter. ...The Constitutional Court has already stated in its previous jurisprudence that a person’s reputation forms part of her personal identity and psychological integrity... ... 43. The appellants...failed to verify the impugned statements beforehand as was their duty. The Appeal Court established that the appellants had damaged M.S.’s reputation by making untrue allegations, which caused her mental anguish...When deciding on the claim in respect of non-pecuniary damage and its amount, the Appellate Court took into account the purpose of those damages, as well as that it should not favour aspirations that are incompatible with its nature and social purpose. 44. [T]he Constitutional Court considers that a measure imposed on the appellants in the present case was proportionate to the aim pursued...The court further considers that the Appellate Court did not go beyond its discretionary power in deciding on the claim in respect of non-pecuniary damage...[T]he Constitutional Court finds that the reasons the Appellate Court gave were ‘relevant’ and ‘sufficient’ within the meaning of Article 10 of the European Convention. 45. In view of the above, the Constitutional Court considers that the interference with the appellants’ right to freedom of expression was ‘necessary in a democratic society’ and that, therefore, there has been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention.” 17. On 21 September 2010 the Constitutional Court’s decision was served on the applicants. | 0 |
test | 001-152597 | ENG | UKR | CHAMBER | 2,015 | CASE OF PRILUTSKIY v. UKRAINE | 4 | No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1960 and lives in Donetsk. 6. On the night of 30 September 2006 the applicant’s son (born in 1984) took part in “AutoQuest”, a location-based driving game in the city of Donetsk. In accordance with the rules of the game, the participants were divided into teams and each team had to move by car to different locations in the city. On arrival at an intermediary destination each team had to solve a riddle in order to establish the next destination point, and the winner was the team that reached the final destination first. 7. The applicant’s son was in the team of P., who was the driver. During the game P. lost control of the car and collided with a pillar. As a result of the accident, P. was injured and his three passengers, including the applicant’s son, died. 8. On 1 October 2006 the Donetsk Region police department opened an investigation under Article 286 § 3 of the Criminal Code in connection with the fatal car accident. 9. On 3 October 2006 the applicant was admitted to the proceedings as a victim. 10. On 19 February 2007, in reply to an enquiry from the applicant concerning the investigation, the Donetsk City prosecutor’s office informed him that the case was complicated and the police had to order various expert examinations; the activities of the organisers of the driving game were also being examined. 11. On 23 February 2007 the police refused to institute criminal proceedings against the organisers of the driving game. 12. On 10 July 2007 the board of forensic psychiatric experts completed their examination and found that at the time of the accident P. had been aware of his actions and able to control them. Following the injuries sustained in the accident, P. had developed a chronic mental disability. He was diagnosed with a complicated organic impairment of the brain and amnestic syndrome. The experts found that at the time of the examination P. had no longer been aware of his actions or able to control them and that he should therefore undergo mandatory psychiatric treatment. 13. On 24 October 2008, in reply to a complaint lodged by the applicant about the ineffectiveness of the investigation, the Donetsk Region prosecutor’s office maintained that the criminal investigation was being carried out in accordance with the requirements of the Code of Criminal Procedure and that there had been no grounds to change the investigator in the criminal proceedings. 14. On 5 February 2009 the case file was referred to the Kuybashevskyy District Court of Donetsk (“the first-instance court”) in order to determine whether it was appropriate to apply compulsory medical measures in respect of P. 15. On 15 March 2010 the chairman of the Donetsk Region Council of Judges requested that the chairman of the first-instance court ensure prompt consideration of the criminal case. He noted that the court hearings had been repeatedly adjourned and the length of the proceedings had not been reasonable. 16. On 28 February 2011 the board of forensic psychiatric experts issued a report repeating their previous conclusions as to P.’s mental state. 17. On 8 June 2011 the first-instance court found that P. had committed a crime by violating the traffic safety regulations, which had resulted in the death of the applicant’s son and the two other passengers. The court noted that P. had collided with a pillar because he had exceeded the speed limits and had lost control of the car. It further noted that, according to the forensic psychiatric examination reports of 10 July 2007 and 28 February 2011, P. had been mentally aware of and able to control his actions at the time of the accident but had later developed a mental disability; at the time of the examinations, P. had been suffering from an organic brain impairment and amnestic syndrome; as a result, he had no longer been aware of or able to control his actions and needed to be provided with compulsory medical treatment, namely outpatient psychiatric assistance. Bearing those medical reports in mind, the court ordered the compulsory medical measures. 18. The applicant appealed, claiming that he was a doctor by profession and could see that the medical findings were wrong. He further complained of a breach of procedural rules, arguing that P. should have been brought to the court room for the hearings. 19. On 24 January 2012 the Donetsk Regional Court of Appeal quashed the decision of 8 June 2011 and remitted the case for additional pre-trial investigation. The court noted that there were witness statements, including those obtained at the pre-trial stage of the proceedings, which suggested that at the time of the accident P. might have made a sharp turn in order to avoid hitting a pedestrian who had been crossing the road. The court considered that the facts had not been established properly and that additional investigatory measures were required. 20. Following the additional investigation, the case was referred to the first-instance court on 31 October 2012. The investigative authorities considered that P. had exceeded the speed limit, in violation of the traffic regulations; he had lost control of the car and caused the accident which had resulted in the deaths of his three passengers. P.’s actions amounted to a crime. However, due to the mental disability that he had developed after the accident, it was proposed that the court impose compulsory medical measures in respect of P. 21. As of 26 March 2013 the proceedings were pending. | 1 |
test | 001-150785 | ENG | RUS | CHAMBER | 2,015 | CASE OF SERGEY ZUBAREV v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1953 and lives in Tula. 6. The applicant is a lawyer. In 2003-05 the applicant, together with the lawyer Ms V., represented Ms D. in civil proceedings before the Proletarskiy District Court of Tula. 7. On 13 April 2005 Judge S. of the District Court sent a complaint to the President of the Tula Bar Association. She alleged that the absence of the applicant and Ms V. without good cause had led to delays in the proceedings. She asked the President to institute disciplinary proceedings against the lawyers and to inform them of the next hearing in Ms D.’s case. In particular, she stated as follows: “I draw your attention to the conduct of the lawyers Mr Zubarev and Ms V., which is not compatible with the Lawyers’ Code of Ethics. It has encroached on the rights of the person they were representing before the court ... and has led to unjustifiable delays in the examination of the merits of the case. At the same time [they] have systematically written complaints in Ms D.’s name to various authorities and newspapers, attempting in that way to shift the responsibility for their own incompetence and lack of professionalism onto the judicial system, and thereby expressing contempt for the court.” 8. The parties did not inform the Court whether there was any follow-up to Judge S.’s complaint on the part of the Bar Association. 9. Being of the opinion that the above-cited paragraph of Judge S.’s complaint tarnished their professional reputation, the applicant and Ms V. brought a defamation action against her in accordance with Article 152 of the Civil Code. They also sought a compensation award in respect of nonpecuniary damage. 10. On 3 May 2005 the District Court refused to accept the applicant’s claims for consideration. The court noted that current laws did not define the grounds or procedure for adjudicating that type of claim. In particular, the court noted as follows: “According to Article 16 of the Law of the Russian Federation on the Status of the Judiciary of the Russian Federation, a judge cannot be held liable for an expression of opinion in the course of the administration of justice or for the judgment handed down [by him or her] unless he or she has been found guilty in criminal proceedings concerning the abuse of power or the adoption of an unlawful verdict, judgment or other judicial act. Pursuant to Article 1070 § 2 of the [Civil Code] of the Russian Federation, ... [d]amage caused within the framework of the administration of justice shall be compensated, provided that the guilt of the judge has been established in a final criminal conviction. The claims lodged by [the applicant] and Ms V. cannot be considered in civil proceedings given that the issue of a judge’s liability for actions taken in the course of the administration of justice must be adjudicated purely in accordance with the procedure prescribed by law. [However], current legislation does not lay down the grounds or the procedure for compensation by the State for damage caused by a judge’s unlawful actions (inaction) (including the rules governing the jurisdiction of this type of case).” 11. Further to an appeal by the applicant, on 16 June 2005 the Tula Regional Court upheld that decision. The court noted, in particular: “Pursuant to Article 134 § 1 (1) of the [Code of Civil Procedure] of the Russian Federation, the judge must dismiss a claim [without consideration on the merits] if it cannot be adjudicated in civil proceedings but should instead be considered and adjudicated by way of another judicial process. Referring to Article 16 of the Law of the Russian Federation on the Status of the Judiciary of the Russian Federation, the [first-instance] court established that the claims lodged by Ms V. and [the applicant] concerned the judge’s liability and the compensation for damage caused by the judge’s actions (failure to act). [It] correctly indicated in its decision that the judge should be immune from liability for the actions taken in the course of the administration of justice unless she or he had been found guilty of criminal abuse of power in a final criminal conviction. Being mindful of the fact that the issue of the judge’s liability for actions taken in the course of the administration of justice can be examined only in accordance with the procedure prescribed by law, the court has rightly dismissed the claims lodged by [the applicant] and Ms V. [without consideration on the merits], noting correctly that current legislation had not yet laid down the grounds or the procedure for compensation by the State for damage caused by a judge’s unlawful actions (inaction) (including the rules governing the jurisdiction of this type of case).” | 0 |
test | 001-164473 | ENG | UKR | ADMISSIBILITY | 2,016 | LYUBCHENKO v. UKRAINE | 4 | Inadmissible | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Sergiy Goncharenko;Yonko Grozev | 1. The applicant, Mr Aleksandr Vasilyevich Lyubchenko was born in 1973 and lives in Dzhankoy, the Autonomous Republic of Crimea (the “ARC”). At the time of lodging of his application, he indicated of being a Ukrainian national. In May 2014 he informed the Court that he had obtained Russian nationality in April 2014. 2. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice. 3. Mrs Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. By a judgment of 19 February 2002, a certain K. was sentenced to three and a half years’ imprisonment suspended for two years’ probation. In June-September 2003 K. failed to appear before the probation officer for his fortnightly registration allegedly for medical reasons, including hospitalisation. 6. On 6 November 2003 the applicant, a probation officer, represented the District Penal Inspection Authority in judicial proceedings against K. concerning replacement of K.’s probation with imprisonment due to the latter’s failure to comply with the probation requirements. The court adjourned the proceedings until 19 November 2003, having requested K. to submit documents confirming his hospitalisation. 7. On 13 November 2003 K. gave a statement to the Deputy District Prosecutor of Dzhankoy. He submitted that after the court hearing of 6 November 2003 the applicant had summoned him to his office on 10 November 2003. When he had arrived, the applicant informed him that the judge and the prosecutor were intending to replace his probation with imprisonment but that the applicant could settle the matter in his favour for 200 US dollars (USD). K. signed the aforementioned statement and confirmed that he was aware that knowingly reporting false information about a crime was a criminal offence. 8. On the same day, 13 November 2003, prosecutor M. decided to institute a preliminary inquiry under Article 97 of the Code of Criminal Procedure (“the CCP”) and assigned the task to economic crime detectives I. and Sh. from the Crimea Police Department. At 2.30 p.m. the detectives examined two 100 USD notes provided by K. which they had marked with special luminescent fluid (lumiphore) and which K. then put in his pocket. This action was documented in a record of the application of special chemical substances (Протокол применения специальных химических веществ) and was signed by the participants and two attesting witnesses. According to later submissions by some of those present, K. also had a dictaphone attached to his clothing. 9. At about 3 p.m. on the same day K. entered the applicant’s office and emerged a few minutes later, indicating to the detectives and prosecutor M. that he had given the banknotes to the applicant, whereupon they also entered the applicant’s office. According to the crime scene inspection report (Протокол осмотра места происшествия) drawn up by the prosecutor, between 3.25 p.m. and 5.05 p.m. the prosecutor and police officers conducted a search of the applicant’s office. They recorded that during the search the applicant was asked by the police officers whether he had received any money. He replied in the negative. The police officers then checked the applicant’s hands with a special device and found traces of lumiphore on his right hand. They looked in an open safe situated near the applicant’s desk and found the two marked banknotes inside. It was also noted in the report that the search had been audio-recorded. 10. The applicant was arrested that same day. 11. On 15 November 2003 the applicant was charged with soliciting and receiving a bribe. 12. On 16 November 2003 the applicant was released. 13. On 1 April 2004 the applicant was dismissed from his post of probation officer. 14. On 21 January 2004 the Dhzankoy District Court (“the District Court”) examined the applicant’s case and referred it to the Dzhankoy Prosecutor’s Office for further investigation. The court ordered that during the further investigation the banknotes which had been used for the bribe should be located and checked for the applicant’s fingerprints, and that the audio-recording of the bribe-taking, and documents proving that that operation had been lawful must be produced. 15. On 26 February 2004 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) quashed the ruling of 21 January 2004, finding that the requirements laid down by the first-instance court were irrelevant or unnecessary. It observed in particular that the banknotes had been treated with chemicals and examined by forensic experts, that the probability of finding fingerprints on them was therefore low and that it was for this reason that the corresponding examination had not been conducted. The court also noted that there was no evidence either in the case-file or the bill of indictment that an audio-recording had been made, and the first-instance court judge had failed to indicate on what basis he had concluded that such an audio-recording of the bribe handover had in fact been made. 16. By a judgment of 9 March 2005 the District Court acquitted the applicant. The court noted that the applicant denied the accusations, claiming that after the postponement of the hearings in the case of K., the latter had approached him on several occasions to ask about the case. On 13 November 2003 K. had come to his office, they had shaken hands and K. had started asking him again about his probation. After K. had left the office, the police officers had come in and had found the US dollars in his safe. The applicant claimed that he knew nothing about the money and had never solicited or taken any bribe from K. He argued that K. could have put the money in his safe without his knowledge and that the traces of lumiphore on his hand could have been caused by shaking hands with K. The court also examined the evidence presented by the police and found that the operation had been conducted in breach of criminal procedure. It held, in particular, that the operation had been instigated on the basis of unverified allegations made by K. and without an order to institute criminal proceedings against the applicant, and also that certain investigative techniques (special chemicals and audio-recording) had been used without an operational file having been opened, contrary to section 9 of the Search and Seizure Activities Act. The court further noted that the prosecution had lost the audio-recording of the conversation between K. and the applicant, which constituted an important item of evidence that could have confirmed or refuted K.’s allegations that the applicant had extorted money from him. Although the prosecutor denied the use of audio-recording during the operation, K. and one of the police officers confirmed that a dictaphone had been used during the operation. The court also observed that the expert opinion stated that the marked banknotes could in fact have been checked for the applicant’s fingerprints but this had not been done and the banknotes had been lost. The traces of the chemical on the applicant’s hand did not in itself constitute conclusive evidence that he had taken money from K. The court also noted that during the trial prosecutor M. had claimed that the operation had been headed by police inspector I., whereas the latter stated that they were merely assisting the prosecutor to verify the notification of a crime. The court also doubted the testimony given by K. in the light of an earlier promise to take revenge, which was confirmed in the court by two of the applicant’s colleagues. For all these reasons the court concluded that the evidence presented by the prosecution had either been unlawfully obtained or was too inconclusive to establish that the applicant had solicited or received a bribe from K. 17. The prosecutor appealed. In the applicant’s reply to the appeal he stated that the audio-recording made during the operation contained evidence of his innocence and had been withheld from the case file for this reason, and that prosecuting investigator M. had not investigated the real intention behind K.’s complaint, namely to slander the applicant and evade imprisonment. 18. On 6 May 2005 the Court of Appeal quashed the earlier judgment, found the applicant guilty of bribery, sentenced him to three years’ imprisonment together with confiscation of all his property and detained him pending appeal. The court considered that the fact that the applicant had solicited a bribe from K. was proved by the consistent and logical statements given by the latter. It noted that the applicant had failed to check the validity of the reasons for K.’s non-compliance with the probation requirements. In the latter aspect, it referred to two decisions of the Dzhankoy District Court of 11 December 2003 and 20 May 2004 in favour of K. The court also relied on the evidence provided by the records of the use of the special chemical, of the discovery of the marked banknotes in the safe, of the discovery of traces of special chemicals on one of the applicant’s hands, of an event reconstruction proving that K. could not have put the money in the safe without the applicant having noticed it, of the finding of traces of the special chemical on the applicant’s hand and a forensic examination finding a similarity between the chemical on the applicant’s hand and that on the marked banknotes. The court held that the District Court had examined the evidence thoroughly but had assessed it incorrectly. Referring to the statement by police officer I. that no operational file had been opened because this had been a preliminary inquiry within the meaning of Section 97 of the CCP, it concluded that the evidence obtained in the course of the operation had been obtained in compliance with criminal procedure. 19. The applicant lodged an appeal on points of law challenging the admissibility of the evidence against him. Over and above the findings of the trial court he argued that the operation had not been authorised by any court, contrary to Article 97 of the CCP and section 8 of the Search and Seizure Activities Act, and that the operation conducted by the authorities on 13 November 2003 had assisted the provocation of a bribe rather than examining the truthfulness of K.’s allegations and preventing the crime. 20. On 30 June 2005 the Supreme Court of Ukraine upheld the decision of the court of appeal but reduced the applicant’s sentence to one year’s imprisonment. The court noted that the applicant’s guilt had been proved by the consistent testimonies of K. who had no reason for making false accusations against the applicant. It concluded that there had been sufficient direct and indirect proof that the applicant had not only taken the bribe but had solicited it too. 21. The applicant was released from prison on 2 May 2006. Article 62 “[...] An accusation shall not be based on illegally obtained evidence or on assumptions. All doubts with regard to the proof of a person’s guilt are to be interpreted in his or her favour.” Article 368 Taking a bribe 1. The taking of a bribe of any kind, by an official, in return for taking or refraining from any action for the benefit of the person offering the bribe or for the benefit of any third person by means of the authority or official powers entrusted in this official, shall be punishable by a fine of 750 to 1,500 tax-free minimum incomes, or imprisonment for a term of two to five years, with the deprivation of the right to occupy certain positions or engage in certain activities for a period of up to three years. 2. The taking of a substantial bribe by an official who occupies a responsible position, or by a group of persons following prior conspiracy, or if repeated or accompanied by solicitations for such a bribe, shall be punishable by imprisonment for a term of five to ten years along with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years and confiscation of property... Article 369 Offering a bribe 1. The offering of a bribe shall be punishable by a fine of 200 to 500 tax-free minimum incomes, or restraint of liberty for a term of two to five years. ... 3. A person who offers a bribe shall be discharged from criminal liability if the bribe was solicited from this person and if this person, after offering the bribe and before any criminal prosecution was initiated against him/her, voluntarily reported the act of bribery to the agency competent to undertake criminal prosecution. Article 370 Provocation of bribery 1. The provocation of bribery, that is to say the intentional creation, by an official, of circumstances and conditions that provoke the offering or taking of a bribe for the purpose of implicating those who offered or took it, shall be punishable by restraint of liberty for a term up to five years, or imprisonment for a term of two to five years. 2. The same act committed by a law enforcement official shall be punishable by imprisonment for a term of three to seven years. Article 97 Obligation to accept statements and notifications about crimes and the procedure for their examination “...If the need arises to check a statement or notification about a crime prior to the opening of a [criminal] case, such check shall be conducted by a prosecutor, an investigator, or a panel of inquiry within a period of ten days by taking explanations from particular individuals or officials or by requesting the necessary documents. A statement or notification about a crime prior to the opening of a criminal case may be verified by means of search and seizure activities. Certain search and seizure activities, determined by the legislative acts of Ukraine, shall be conducted with the court’s authorisation on the basis of a request to be submitted by the head or deputy head of the respective operative unit and approved by a prosecutor...” 22. Section 8 of the Act lays down a range of investigative techniques that constitute the search and seizure activities that may be conducted by the law enforcement bodies. It also requires that any covert entering of a home or other individual property, interception of communications, monitoring of correspondence and telephone conversations and application of other technical means for obtaining information, must be undertaken at the request of the head or deputy of the operative unit and authorised by a court decision. Any application of technical means for obtaining information must be documented and may be used as evidence in criminal proceedings. 23. Section 9 of the Act requires that search and seizure activities be carried out only after an operational file (оперативно-розшукова справа) has been opened, and prohibits these activities without the existence of such a file. “...19. Evidence shall be deemed to have been obtained illegally if it has been obtained and processed either in breach of individual and citizen’s rights guaranteed by the Constitution of Ukraine, or of legislation on criminal procedure, or by persons and bodies or through means not authorised by the relevant procedural norms.” | 0 |
test | 001-166957 | ENG | UKR | CHAMBER | 2,016 | CASE OF STROGAN v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary | 5. The applicant was born in 1967 and lives in Kharkiv. 6. Late in the evening of 15 August 2010 the applicant had a fight with his neighbour. The neighbour complained to the police that the applicant had injured him. 7. On the morning of 16 August 2010 the police took the applicant to the Kyivskyy District police station in Kharkiv (“the district police”). The applicant was at the police station from 7 a.m. to 9.45 a.m. and gave evidence in relation to the fight with his neighbour. The applicant claimed that he had acted in self-defence. According to the Government, at 9.45 a.m. the applicant left the police station and had no further contact with the police during the period at issue. His presence at the police station from 7 a.m. to 9.45 a.m. was noted in the police’s records. 8. According to the applicant, at 9.45 a.m., as he left the police station, police officers took him and drove him to a forest where they beat him up and tortured him using handcuffs and an electric shock device. The police officers then took the applicant to another part of the police station that he had just left, where they continued to ill-treat him. During that time the police officers put pressure on the applicant to admit that he had intended to murder his neighbour. On 19 August 2010 they released him. 9. On 21 August 2010, following the applicant’s complaint to the internal security unit of the Kharkiv Region police, he was examined by a forensic medical expert. The latter found that the applicant had sustained bruises on his head, nose, upper lip and chest. The expert considered those injuries as being minor and that they could have been caused by blunt, solid objects during a period of three to five days before the medical examination. 10. On 25 August 2010 the assistant prosecutor of the Kyivskyy District prosecutor’s office of Kharkiv (“the prosecutor’s office”) inspected the premises of the police station where the applicant had allegedly been ill-treated. He found traces of a brown substance on the floor, wall, and balcony, as well as on the pillowcase and two mattress covers. Samples of the substance were taken and submitted to an expert for examination. 11. On 26 August 2010 the expert stated that the brown substance was blood. 12. The prosecutor’s office then questioned police officers A., M.B., M.A. and G. They all denied the allegations of ill-treatment and submitted that the applicant had sustained the injuries before being taken to the police station, namely during the scuffle with his neighbour. The officers stated that the applicant’s nose had been injured before and that it bled from time to time, that he had been offered an antiseptic tissue, that he had declined an offer by the police officers to go to a hospital and that he had continued voluntarily to give evidence about the fight with his neighbour. They also mentioned that the applicant had gone on to the balcony to have a smoke where he might have left traces of blood. 13. On 7 and 8 October 2010 the applicant submitted further complaints of ill-treatment to the internal security unit of the Kharkiv Region police and the prosecutor’s office. 14. On 29 October 2010 the prosecutor’s office, having completed its pre-investigation inquiry, refused to initiate criminal proceedings concerning the applicant’s allegations that he had been ill-treated by police officers between 16 and 19 August 2010. According to that decision, the applicant had only been present at the district police station between 7 a.m. and 9.45 a.m. on 16 August 2010 and there had been no evidence suggesting that the police officers had been involved in any alleged illtreatment or unlawful detention. The applicant challenged that decision in the courts. 15. On 23 February 2011 the Kyivskyy District Court of Kharkiv (“the District Court”) found that the decision of 29 October 2010 by the prosecutor’s office had been lawful and substantiated. The applicant appealed. 16. On 11 April 2011 the Court of Appeal upheld the District Court decision of 23 February 2011. The applicant lodged an appeal on points of law. 17. On 9 February 2012 the Higher Specialised Court for Civil and Criminal Matters quashed the District Court decision of 23 February 2011 as unfounded and remitted the case to the District Court for fresh consideration. 18. On 10 May 2012 the District Court reversed the decision of the prosecutor’s office of 29 October 2010, finding that the measures taken to examine the applicant’s allegations had been insufficient. The court ordered a further pre-investigation inquiry to establish the applicant’s whereabouts between 16 and 19 August 2010 and the circumstances in which he had sustained his injuries. 19. On 27 June 2012 the prosecutor’s office refused to initiate criminal proceedings against the police officers for lack of corpus delicti. According to the decision, which referred to the explanations by the police officers and other evidence, the applicant had left the police station at 9.45 a.m. on 16 August 2010 and there had been no involvement of the officers in any unlawful action in relation to the applicant. 20. On 19 May 2014 the applicant lodged a complaint under the Code of Criminal Procedure of 2012 (“the CCP of 2012”), alleging that he had been ill-treated by police officers. 21. On 11 August 2014 the Kharkiv Region prosecutor’s office commenced a pre-trial investigation in relation to the alleged events of 16 to 19 August 2010. 22. On 13 November 2014 a forensic medical expert issued a report repeating the findings of the forensic report of 21 August 2010 as regards the documented injuries. 23. On 15 December 2014 the Kharkiv Region prosecutor’s office terminated the investigation, finding that the applicant’s allegations had been refuted by the statements of the police officers, other witnesses, and documentary and medical evidence which suggested that the applicant might have sustained minor injuries during his fight with the neighbour on 15 August 2010. 24. On 15 September 2010 a forensic medical expert issued a report stating that the applicant’s neighbour had sustained three incised wounds, one of which had been on the neck. 25. On 23 September 2010 the district police opened criminal proceedings in relation to the moderately severe injuries sustained by the applicant’s neighbour during the fight of 15 August 2010. Subsequently, the case was classified as attempted murder. 26. At 2.45 p.m. on 9 December 2010 an investigator with the district police arrested the applicant on suspicion of attempted murder. The investigator relied on Article 115 of the Code of Criminal Procedure of 1960 (“the CCP of 1960”). As regards the grounds for the applicant’s arrest without a court decision, the investigator cited the three sub-paragraphs of the first paragraph of Article 106 of the CCP of 1960 (see paragraph 45 below). He further noted in his report that the applicant had been suspected of attempted murder, that he had a record of serious offences, and that his arrest would prevent the applicant from absconding and impeding the execution of a judgment. The investigator then charged the applicant and questioned him in relation to the case. 27. On 10 December 2010 the District Court ordered the applicant’s pretrial detention. It stated that the applicant had been charged with a serious crime, that he had two criminal offences on his record, and that he had no official income. The court concluded that there was a risk that if the applicant remained at liberty he might impede the establishment of the truth, hide evidence, influence the investigation, abscond or reoffend. The court further considered that a personal guarantee, which had been offered by an NGO in respect of the applicant, would not ensure his proper conduct during the criminal proceedings. Furthermore, there had been no suggestion that the applicant could not be held in a detention facility for health reasons. 28. On 16 December 2010 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) dismissed an appeal by the applicant against the decision of 10 December 2010, finding that there were sufficient grounds to keep him in custody. 29. On 4 February 2011 a bill of indictment was approved by the prosecutor and the case file was sent to the District Court. 30. On 25 February 2011 the District Court committed the applicant for trial on a charge of attempted murder. As regards the preventive measure, the court ruled that the applicant should be held in custody. It stated that the applicant had been charged with a serious offence, that he was unemployed, had refused to admit his guilt, and that he had two serious offences on his criminal record. The court pointed out that no new information had been added to the material which had been examined earlier by the District Court and the Court of Appeal when deciding on keeping the applicant in custody. 31. On 11 May, 1 July and 29 September 2011 the District Court dismissed applications by the applicant for a change in the preventive measure and maintained its earlier decision to keep him in custody. The court stated that the applicant had been charged with a serious offence, was unemployed, had a criminal record, and had refused to admit his guilt. As to the question of bail, the court noted that no document had been produced to suggest that any funds were available for that purpose. 32. On 12 March 2012 the applicant was released from custody after giving a written undertaking not to abscond. The District Court stated that the trial was in its final stages so the applicant could no longer impede the establishment of the truth. The applicant also had a permanent place of residence where he lived with his family. 33. On 13 August 2012 the District Court convicted the applicant of inflicting minor bodily injuries on his neighbour. The court found that attempted murder had not been established during the trial. It sentenced the applicant to two years of restriction of liberty. Having regard to the period of the applicant’s pre-trial detention, the court found that the sentence had been served. 34. On 14 February 2013 the Kharkiv Court of Appeal upheld the judgment of 13 August 2012. 35. On 9 December 2010, following his arrest and questioning (see paragraph 26 above), the applicant was placed in a police cell. According to the applicant, on the evening and night between 9 and 10 December 2010 police officers beat him up at the police station. 36. As the applicant had complained about his health, he was examined late in the evening of 9 December 2010 by a panel of doctors who found no injuries on his body. 37. On 10 December 2010 the hearing before the District Court concerning the preventive measure in the applicant’s case was interrupted because the applicant had to be provided with medical care. The ambulance team which arrived at the court stated that the applicant had concussion, a haematoma by the left eye and a bruise on his chest. The applicant complained that the injuries had been inflicted by police officers. 38. On the same day the deputy prosecutor of the Kyivskyy District of Kharkiv ordered that the applicant be examined and asked the medical expert to detail, among other things, the nature, quantity, location, and severity of his injuries. He also asked the expert to state whether the injuries could have been inflicted by the applicant himself. 39. On 11 December 2010, following the court decision of 10 December 2010 to hold the applicant in custody (see paragraph 27 above), he was taken under escort to the Kharkiv pre-trial detention centre. Upon arrival he was examined by the medical staff who documented the following injuries: a haematoma by the left eye, bruises on the left abdominal area and neck, a haematoma on the right thigh, and swelling in his genitals. 40. On 13 December 2010 a doctors’ panel examined the applicant and found that he had sustained bruising on the soft tissue of his head and had a haematoma on his left eyelid. 41. On 14 December 2010 the applicant was examined by a forensic medical expert as requested (see paragraph 38 above). In his report of 15 December 2010 the expert stated that the applicant had sustained bruises on his face, neck, chest, left shoulder, right leg and right shin. The expert considered the injuries to be minor and that they had been inflicted by blunt, solid objects during a period of between three to six days before the examination. The expert added that all the injuries could have been selfinflicted. 42. On 21 December 2010 the prosecutor’s office, having concluded its pre-investigation inquiry, refused to open criminal proceedings concerning alleged police brutality against the applicant on 9 and 10 December 2010. According to the decision, there had been no evidence suggesting that the applicant’s injuries documented after the alleged ill-treatment had been caused by police officers. The decision referred to the police officers’ statements that the applicant had inflicted the injuries on himself. 43. The applicant challenged that decision before the District Court, but received no reply. In 2012, 2013 and 2015 he made applications to the District Court in relation to his complaint, but to no avail. | 1 |
test | 001-174216 | ENG | SMR | ADMISSIBILITY | 2,017 | SOFIA v. SAN MARINO | 4 | Inadmissible | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 1. The applicant, Mr Rosario Sofia, is an Italian national who was born in 1966 and lives in Catania. He was represented before the Court by Mr C. Cali, a lawyer practising in Catania, Italy. 3. On 1 December 2008 the applicant and G.S., his brother, arrived at a San Marinese bank (Banca di San Marino) where G.S. held a current account (hereinafter “the current account”), which he had opened on 30 October 2006. 4. G.S. on that day withdrew 850,000 euros (EUR), which had been deposited in the current account earlier. At the same time, the applicant asked the bank employee dealing with them to issue sixty-eight bearer savings books (libretti al portatore) in his name. The two brothers asked the bank employee to then deposit the money G.S. had just withdrawn into the sixty-eight bearer savings books (in particular, they requested that each savings book have an equal amount of EUR 12,500). 5. Asked by the bank employee for the reason for such operations, the applicant and his brother explained that they feared that ongoing criminal proceedings against G.S. in Italy could lead the Italian judicial authorities “to request information” (potrebbe determinare una richiesta di informazioni). 6. Despite the suspicious nature of the operations and the explanation provided by the applicant and his brother, the director of the bank branch gave his consent to carry out the requested transactions, despite his duty under anti-money laundering laws not to engage in operations that appear suspicious. However, he later reported them to the Financial Intelligence Agency (Agenzia di Informazione Finanziaria, hereinafter “the AIF”), the national authority responsible for combatting money laundering, among other tasks. 7. In a report of 17 February 2009, received by the San Marinese courts the day after, the AIF informed the investigating judge (Commissario della Legge, hereinafter the Commissario) of the above-mentioned facts, which in the AIF’s opinion possibly constituted money laundering. In particular, the agency emphasised that G.S. had deposited the money in the current account by paying in several cheques which could not be considered “compatible” with the professional and commercial activities he had declared to the bank. In fact, the information provided to the bank in 2006 had stated that his job consisted of trading in clocks, silver and items made from gold. The trading had originally been done in his own name, as a natural person, and subsequently through a company called S., which had been liquidated in 1996. After that, it had continued through a company called S.P., in which he had never held any administrative position or share capital (the company had in formal terms been administered by his wife). That company had ceased business in 2008. Since most of the cheques which had made up the above-mentioned sum had been deposited in or after 2008, the AIF considered that the transactions had not been justified by or been in line with the above-mentioned facts. 8. On 19 February 2009 the authorities in San Marino instituted criminal proceedings no. 204/2009 against the applicant for money laundering. 9. On 9 March 2009 the Commissario, relying on Article 29 of the 1939 bilateral Convention on Friendship and Good Neighbourhood between San Marino and Italy (Convenzione bilaterale di Amicizia e Buon Vicinato tra San Marino e Italia), reported the suspected operations to the Italian National Prosecutor against the Mafia (Procura Nazionale Antimafia) and requested information concerning the applicant and his brother. 10. On 13 October 2009 the requested judicial authority in Italy informed the Commissario that there were ongoing proceedings for usury against the applicant’s brother, as well as V. and T, following a criminal complaint submitted by B., a jewellery trader. The applicant was also considered by the Italian financial police (Guardia di Finanza) to be very close to various members of a local Mafia group in Catania. 11. On the basis of that information, the Commissario sent a formal letter of request on 23 October 2009 to the public prosecutor in Catania for assistance in finding out if the money deposited in the current account in the San Marinese bank could possibly have been related to the offence of usury or to any other crimes in any way related to G.S. 12. By a note of 21 November 2009 the Catania public prosecutor replied to the Commissario. He stated that after examining the San Marinese bank documents attached to the letter of request and comparing those documents with information at his disposal, the money deposited in the San Marinese current account had to be considered as proceeds of the offence of usury or related to it. 13. On 21 December 2009, following a request by the Commissario, the AIF provided the judicial authority with further information regarding the bank operations carried out by the applicant and his brother. 14. By a decision of 4 February 2010 the Commissario informed the applicant (judicial notice), that he was under investigation for money laundering under Article 199 bis of the Criminal Code for the actions taken in San Marino on “1 January 2008” (the first page of the same decision gave the correct date of 1 December 2008). According to the prosecution, the opening of the bearer savings books and the deposit of the money from the current account, held by the applicant’s brother, into the bearer savings books in equal shares of EUR 12,500 each for an overall sum of EUR 850,000 had constituted acts of concealment, transfer and substitution of money, aimed at hiding the criminal origin of the funds, which were the proceeds of the offence of usury. 15. By the same decision, the Commissario also ordered the seizure of the EUR 850,000 deposited in the sixty-eight bearer savings books as well as the physical seizure of the savings books themselves, if they were in the possession of the bank, considering the money to be the corpus delicti of the offence of money laundering. Moreover, the Commissario ordered the bank to transfer to it within fifteen days a copy of all the documents relating to the savings books and to provide any other useful information (including the precise final balance of each book). 16. On the same day the Commissario also asked the AIF and the judicial police to carry out further investigations. 17. The results of those investigations were eventually reported by the AIF on 21 April 2010. It stated, inter alia, that G.S. had opened a first bearer savings book (no. 1) on 4 February 2002 and had deposited EUR 579,352.36 through three deposits of cash. Following a series of other operations the bearer savings book (no. 1) had been closed on 30 October 2006. On the same day, G.S. had opened a current account, in which he had deposited the money left in bearer savings book (no. 1) and had over time deposited 683 cheques worth a total EUR 1,817,406.14. 18. According to the AIF, B. had written or been the beneficiary of seven of the above-mentioned cheques for an overall sum of EUR 37,890, V. had written or been the beneficiary of thirty-six cheques (EUR 99,373), T. of twenty-six (EUR 78,375) and S.S. of one (EUR 1,500). 19. On an unspecified date the applicant lodged a complaint with the Judge of Criminal Appeals (Giudice d’Appello Penale) against the Commissario’s decision of 4 February 2010. He applied, firstly, to have the whole decision annulled on the ground that it had not complied with the time-limit provided by law. Secondly, he sought the annulment of the seizure since it lacked the requisite fumus delicti (presumption of a sufficient legal basis) and because the Commissario had seized all the money in the applicant’s bank accounts and not just that directly linked with the alleged “predicate offence” (usury). In the applicant’s opinion the Commissario should have seized only EUR 37,890 and not the entire EUR 850,000 given that in the report submitted by the AIF on 21 April 2009 only EUR 37,890 had definitely been considered as the proceeds of usury against B. 20. By a decision of 21 September 2010 a Judge of Civil Appeals in his capacity as Judge of Criminal Appeals dismissed the complaint. The judge held that the seizure decision had been delivered within the time-limit. He further held that the two prerequisites for the application of the disputed seizure, namely fumus delicti and periculum in mora (a danger in delay), had been in place. 21. Moreover, the judge noted that even if the AIF report had limited the corpus delicti of the usury in question to EUR 37,890, such a limitation did not exclude the possibility that further amounts of money transferred into the savings books could also possibly have been profits from the alleged predicate offence. In the judge’s view, if that were not the case it was difficult to fathom why the applicant had transferred the whole sum into the savings books and not just EUR 37,890. 22. The applicant appealed to the Third-Instance Criminal Judge (Terza Istanza Penale) against the seizure decision and the decision of the Judge of Criminal Appeals. In particular, he highlighted, inter alia, the lack of proportion between the amount of money seized and the sum considered, in the Italian proceedings and the AIF report, to have been the proceeds of usury. 23. The Third-Instance Criminal Judge dismissed the appeal on 29 November 2010 after an oral hearing held the same day. He noted that there was no reason to believe that the predicate offence (usury) in the criminal proceedings in Italy against the applicant’s brother was the only offence ascribable to him. 24. On an unspecified date the applicant was served with a bill of indictment, which read: “...for the offence ex Articles 50 and 199 bis of the Criminal Code ... since with multiple actions connected between them by a common criminal plan, in the Banca di San Marino, in the presence of his brother, [the applicant] opened sixty-eight bearer savings books of EUR 12,500 each, where he transferred the overall sum of EUR 850,000 using money simultaneously (contestualmente) withdrawn by his brother [G.S.] from his current account, in which the latter had deposited sums deriving from usury or having a criminal origin ... acts committed in San Marino, on 1 December 2008”. 25. On an unspecified date during the applicant’s trial he was questioned at a public hearing by the first-instance judge on the merits (namely, the Commissario della Legge in his capacity as judge on the merits in inquisitorial proceedings). The applicant stated that the money that had been seized was profit from his work and savings and that he had decided to deposit it in a San Marinese bank rather than an Italian one in order to take advantage of the San Marino tax system. The applicant also explained that transferring the money had been the result of his reckless behaviour (“frutto di un comportamento sconsiderato”) after advice from the same bank manager who had later reported the operation to the AIF. 26. In order to prove that the money did not have a criminal origin, the applicant submitted a report prepared by a financial expert, who also took part in a subsequent hearing and was questioned by the judge. In particular, the expert stated in the report that the money deposited in the San Marinese current account had to be considered as the result of tax evasion (redditi non dichiarati), which at the time of the facts was an administrative rather than a criminal offence in San Marino. The origin of the assets had therefore not been “criminal”, as required by law, to amount to the crime of money laundering. 27. By a judgment of 10 January 2013 the applicant was found guilty of money laundering and sentenced to five years and six months’ imprisonment. He was also fined EUR 30,000 (multa a giorni) and prohibited from holding public office and exercising political rights for two years. In addition, the judge ordered the confiscation of all the seized money (indicated by the judge as EUR 853,304.80), in accordance with Article 147 of the Criminal Code. 28. On 11 December 2013 the judgment and its reasoning was filed with the court’s registry. 29. The first-instance judge held that previous case-law had established that in order to find someone guilty of money laundering it was not necessary to determine the specific legal classification of the predicate offence, perpetrator or victim. It sufficed instead to have evidence (prova logica) of the criminal origin of the proceeds in question. Hence, the acts leading to the predicate offence could be described in the charges and eventually ascertained during the trial, without the details of the manner in which the predicate offence had been committed (anche solo per sommi capi quanto alle modalita’ di commissione). 30. The first-instance judge considered that the alleged tax evasion argument used by the defence had been an acknowledgment that the assets involved had been the result of the embezzlement of the profits of the two companies through which G.S. had worked and had de facto confirmed the criminal origin of the money. 31. Moreover, many factors had demonstrated G.S.’s involvement in acts of usury, inter alia, the issuing and cashing of hundreds of cheques, the cashing of cheques with increased amounts as substitutes for ones not paid out, the cashing of cheques in exchange for high-denomination banknotes and the brief period of time in which all such operations had been carried out. All those elements, together with the results of the Italian investigations, had, owing to their relevance and repeated nature, demonstrated usury, regardless of the results of the Italian criminal proceedings. 32. On an unspecified date the applicant lodged an appeal against the first-instance judgment. He complained, inter alia, about the lack of clarity in the charges, which had not contained any precise description of the predicate offence (apart from a reference to the offence of usury, which had anyway been connected with only a very small part of the confiscated money). In his opinion, that had amounted to a violation of his right of defence, as provided, inter alia, by Article 6 § 3 (a) of the Convention. 33. The applicant also challenged the first-instance judge’s finding that the confiscated money had had a criminal origin and the fact that no other predicate offence (apart from usury, which in his opinion had to be considered as relating to only a small part of the assets) had been specified and identified by the judgment. 34. In addition, the applicant argued that the reason given by the first-instance judge on the specific point of the criminal origin of the money had led to a reversal of the burden of proof. In fact, the first-instance judgment had noted that the applicant had not submitted any evidence of the lawful origin of the money. It followed that there had been a violation of the presumption of innocence and of the applicant’s right of property. 35. The applicant also argued that the wording of Article 147 of the Criminal Code in force at the time of the facts (December 2008) had provided for confiscation of only the price, the product and the profit of the offence. According to the defence, the judge had applied an amendment to that provision which allowed the confiscation of assets whose legitimate origin had not been proven by the person found guilty. That being so, a finding of guilt should have led to the confiscation of only EUR 37,890, namely only those assets whose criminal origin (usury to the detriment of B.) had been shown. 36. By a judgment of 3 February 2015, filed with the registry on 4 February 2015, the Judge of Criminal Appeals upheld the first-instance judgment, reducing, however, the penalty. The applicant was sentenced to two years’ imprisonment and prohibited from holding public office and exercising political rights for one year. The fine was reduced to EUR 5,000. 37. The judge also upheld the order to confiscate all the money deposited in the savings books since the criminal origin of those assets had been proven (with reference to usury and embezzlement by the applicant’s brother to the detriment of the Italian companies). Moreover, the laundering had concerned all the money and not just part of it, therefore the applicant could have foreseen that the whole sum could be confiscated. 38. The judge noted that the law did not require that charges or final judgments refer to a specific legal classification of the predicate offences at the origin of money laundering. Nor was it necessary to specify when an offence had been committed or by whom. The only relevant factor was the determination beyond a reasonable doubt that funds had a criminal origin (provenienza da misfatto). Accordingly, in order to find the applicant guilty of money laundering it had been sufficient for the judge to ascertain that the money allegedly subjected to laundering had not had a lawful origin, that is it had been possible to categorically exclude through evidence and logical deductions that the origin of the proceeds had been anything other than criminal. 39. Article 199 bis of the Criminal Code, as amended by Chapter 2, Article no. 7 of Law no. 28 of 26 February 2004, and by Article 77, Paragraph 2 of Law no. 92 of 17 June 2008, as applicable at the time of the facts (1 December 2008), read in so far as relevant as follows: “(1) A person is guilty of money laundering, where, except in cases of aiding and abetting, he conceals, substitutes, transfers or co-operates with others to so do, money which he knows was obtained as a result of crimes not resulting from negligence or contraventions (misfatto), with the aim of hiding its origins. (2) or whosoever uses, or cooperates or intervenes with the intention of using, in the area of economic or financial activities, money which he knows was obtained as a result of crimes not resulting from negligence or contraventions (misfatto).” (3) If the crime at the origin of the laundered money has been committed in a foreign country, such a crime has also to constitute a prosecutable criminal offence in San Marino (deve essere penalmente perseguibile e procedibile anche per l’ordinamento Sammarinese). ... (7) The judge applies the penalty provided for the predicate offence if it is less heavy.” 40. Article 147 of the Criminal Code, as amended by Article 5 of Law no. 28 of 26 February 2004, read at the time of the commission of the offence in the present case (December 2008), in so far as relevant, as follows: “1. In a judgment of conviction, the Judge shall order (il giudice ordina) the confiscation of items belonging to the convicted person which were used or which were intended to be used to commit the crime, as well as the confiscation of the price, the product, and the profit of the crime. ... 3. In the judgment of conviction the Judge must always order (e’ sempre obbligatoria) the confiscation of items which were used or which were intended to be used to commit the offence ex Art.199 bis (money laundering), or offences connected to terrorism, or offences with the purpose of subverting the constitutional order, as well as ordering the confiscation of the price, product and profit of the crime....” 41. Article 147 § 3 of the Criminal Code, as amended by Article 32 of Law no. 126 of 15 July 2010, in so far as relevant, reads as follow: “(3) In a judgment of conviction, the judge shall always order the confiscation of items which were used or which were intended to be used to commit the offences ex Articles 150, 155 aggravated, 156, 167, 168, 169, 177 bis, 177 ter, 194, 195, 195 bis, 195 ter, 196, 199 § 1, 199 bis, 204 (3-1), 204 bis, 207, 212, 237, 239, 241, 242, 246, 247, 248, 249, 295, 296, 297, 298, 299, 300, 305 bis, 308, 309, 337 bis, 337 ter, 371, 372, 373, 374 comma 1, 374 ter (1), 401, or offences connected to terrorism, or offences with the purpose of subverting the constitutional order, or the crime ex Article 1 of Law no. 139 of 26 November 1997 or the crime ex Article 2 of Law no. 99 of 7 June 2010, as well as ordering the confiscation of the price, product and profit of the crime. If the items which were used or which were intended to be used to commit the crime, as well as the price, the product and the profit of the crime, have been completely or partially mixed in with assets having a lawful origin, the judge shall order the confiscation of such assets up to the estimated value of the items which were used or which were intended to be used to commit the crime, or the estimated value of the price, product, and profit of the crime. In all of the above mentioned cases the judge shall also order the confiscation of money or other assets whose lawful origin the convicted person cannot demonstrate. If (direct) confiscation is not possible the Judge shall order (impone l’obbligo di) the payment of an amount of money equivalent to the value of the items to be confiscated.” | 0 |
test | 001-153319 | ENG | AUT | CHAMBER | 2,015 | CASE OF SARKÖZI AND MAHRAN v. AUSTRIA | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 6. The first applicant was born in 1966 and currently lives in Mosonmagyaróvár, Hungary. She came to Austria in 1990 holding a visa and settled in Vienna. She was later issued temporary residence permits, until she was granted a permanent residence permit on 30 September 1997. 7. The first applicant subsequently met an Austrian citizen and married him. From that union, the second applicant was born in 2002 in Vienna. The couple later divorced, but continued to hold joint custody of their son. 8. Other family members of the first applicant living in Austria are her daughter from a first marriage, her daughter’s husband and child, her brother and her parents. 9. The second applicant has Austrian citizenship and lives in Vienna with his father. Other family members of his living in Austria are his grandparents, his uncle, his half-sister and her family. 10. The first applicant’s criminal record shows seven convictions. 11. On 12 October 1993 the Hernals District Court (Bezirksgericht) convicted the first applicant of deliberately causing bodily harm and sentenced her to pay a fine of 5.400,00 Austrian Schillings (“ATS”). 12. On 6 September 1994 the Vienna Regional Criminal Court (Straflandesgericht, “the Criminal Court”) convicted the first applicant of attempted aggravated fraud and sentenced her to five months’ imprisonment, suspended with a probationary period of three years. 13. On 7 July 1995 the Donaustadt District Court convicted the first applicant of causing damage to private property and sentenced her to pay a fine of 40 daily rates (Tagessätze), in sum ATS 3.600,00. 14. On 7 May 2002 the Criminal Court convicted the first applicant of causing damage to private property, bodily harm and assault on a police officer and sentenced her to three months’ imprisonment, again suspended with a probationary period of three years. 15. On 24 April 2003 the Criminal Court convicted the first applicant and her former husband (the second applicant’s father) of partly attempted, partly completed fraud and sentenced them to two months’ imprisonment, suspended on probation. 16. On 28 July 2006 the Criminal Court convicted the first applicant of aggravated fraud and sentenced her to six months’ imprisonment. The probationary period for her previous conviction was extended to five years. 17. On 29 May 2008 the first applicant was convicted of partly attempted, partly completed aggravated fraud on a commercial basis and sentenced to three years’ imprisonment. 18. The first applicant started serving her sentence on 28 September 2007 and was released on 30 December 2010. During that time, the second applicant lived with his father. 19. In a letter dated 29 September 1994 the Aliens Police (Fremdenpolizei) warned the first applicant that, if convicted once more, an exclusion order could be issued against her (Aufenthaltsverbot). 20. On 25 September 2008, following her latest conviction and threeyear prison sentence, the Vienna Federal Police Authority (Bundespolizeidirektion) issued an unlimited exclusion order against the first applicant, pursuant to sections 63 § 1 and 86 § 1 of the Aliens Police Act (Fremdenpolizeigesetz). It stated that after the first applicant’s conviction in 2006, the Aliens Police had refrained from issuing an exclusion order against her, because she had already been living in Austria for over 17 years and held a permanent residence permit. The authorities stated that at that point they did not consider that she posed a serious threat to public order and security within the meaning of section 86 § 1 of the Aliens Police Act. However, her most recent conviction did justify the assumption that her further stay in Austria endangered public order and safety. The exclusion order was necessary to protect the economic wellbeing of Austria and to prevent criminal activities, hence it was in accordance with Article 8 § 2 of the Convention. It further held that even though the exclusion order constituted an interference with her private and family life, because her children and her parents lived in Austria, the public interest in her expulsion outweighed her interest in remaining in the country. 21. The first applicant appealed. During the oral hearing at the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat) on 28 January 2009, she provided a letter from a general practitioner, which stated that the separation from the second applicant due to her imprisonment had caused her son severe mental stress, and that it was important for his development to grow up with his mother. She stated that her son visited her frequently in prison, and that they tried their best to keep up their relationship. Furthermore, she pointed out that she also had other close family ties to Austria, with her daughter, her brother and her parents living there. She regretted her criminal convictions and requested that the exclusion order be lifted. 22. On 6 April 2009 the Vienna Independent Administrative Panel dismissed the appeal. It took into consideration the nature and seriousness of the offences the first applicant had committed and the resulting personality profile, reiterating that she had started her criminal activities shortly after her arrival in Austria. Her latest criminal conviction was based on numerous offences against private property, serving her as a source of income. She had therefore demonstrated that she did not respect the property of others, and that she constituted a danger to the public because of her fraudulent activities, which she had committed over a long period of time. Previous convictions for bodily harm and assault on a police officer showed that she did not shy away from attacks on life and limb either. Because she was serving her sentence at the time of the decision, it could not be assumed that the danger emanating from her person had diminished, which was why the unlimited exclusion order was justified. 23. Concerning her private and family life, the Independent Administrative Panel held that the first applicant was well integrated in Austria, and that many of her family members lived there, in particular her then seven-year-old son. The exclusion order therefore constituted an interference with her rights under Article 8 of the Convention. However, due to her criminal record and the serious nature of her offences, the public interest in her expulsion outweighed her personal interest in respect of her private and family life. Furthermore, because of the short distance between Bratislava and Vienna of around one hour by train, it would be possible for her family members to visit her frequently. The first applicant came to Austria when she was 24 years old, speaks the Slovak language and could easily reintegrate in her country of origin. Because of the seriousness of her crimes, and because the presence of her family members in Austria could not deter her from repeatedly committing offences, the exclusion order was proportionate to the aim pursued. Because it was not possible to assess when the first applicant would cease to represent a danger, there was no reason to limit the exclusion order. The Independent Administrative Panel added that the first applicant could apply for the lifting of the exclusion order after an appropriate interval, and in any event three years after its enforcement, if the circumstances for its issue had changed significantly. 24. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) relying, inter alia, on Article 8 of the Convention. 25. On 16 June 2009 the Constitutional Court refused to deal with the complaint and referred it to the Administrative Court (Verwaltungsgerichtshof). 26. On 9 November 2009 the Administrative Court rejected her complaint due to the lack of any important legal question to be answered. It stated that the Independent Administrative Panel had not deviated from the previous jurisprudence of the Administrative Court. 27. On 15 July 2010 the first applicant lodged an application for the exclusion order to be lifted pursuant to section 65 of the Aliens Police Act. 28. On 12 January 2011 the Vienna Federal Police Authority dismissed the application. 29. On 12 September 2011 the Independent Administrative Panel partly granted the first applicant’s appeal and reduced the duration of the exclusion order to eight years, because the relevant legal provisions had changed in the meantime. Pursuant to section 67 (formerly section 86) of the Aliens Police Act as in force at the relevant time, an exclusion order against a citizen of the European Economic Area (EEA) may not exceed ten years in duration. Pursuant to paragraph 4 of that provision, the exclusion order would therefore cease to be in force on 29 September 2016, irrespective of whether the first applicant actually left the country. 30. The first applicant appealed against this decision. On unspecified dates, the Constitutional Court and the Administrative Court rejected her complaints. 31. The Vienna Youth and Family Office, in a statement dated 18 June 2012, noted that the separation of the applicants due to the first applicant’s imprisonment had already had a traumatizing effect on the second applicant and had strained the relationship between mother and son. Another separation would likely re-traumatize the second applicant and severely jeopardize his psychosocial development, which is why it would be in the best interest of the child to grant his mother a residence permit. 32. A medical report by psychologist E.G. dated 23 November 2012 attested that the second applicant was suffering from post-traumatic stress disorder, emotional disorder and separation anxiety as a result of the separation from his mother when she had to serve her time in prison. He was in need of constant psychological care and had voiced suicidal thoughts after he had learned that his mother would be expelled. Another separation from his mother would traumatise him again and have long-term effects on his mental state. 33. The neurologist N.F., in a report dated 16 November 2012, diagnosed the first applicant as suffering from a pre-suicidal syndrome and stress reaction and stated that any additional stress was to be avoided. Her psychologist E.G., in a statement of 23 November 2012, attested that she suffered from depression, anxiety and claustrophobia. She had also voiced suicidal thoughts. 34. A subsequent application by the first applicant for the exclusion order to be lifted, dated 12 August 2012, was unsuccessful. 35. On 4 December 2012 the first applicant was expelled to Slovakia. The second applicant has lived with his father in Vienna since then. Both parents continue to share custody. | 0 |
test | 001-145108 | ENG | BIH | ADMISSIBILITY | 2,014 | MANDIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 1. Ms Mara Mandić and Mr Krsto Bošković are Serbian nationals who were born in 1948 and 1956 respectively. Mr Strahinja Starčević is a citizen of Bosnia and Herzegovina who was born in 1937. Mr Milija Vlahović is a citzen of Bosnia and Herzegovina and a national of Serbia who was born in 1937. All the applicants live in Serbia. 2. Mr Strahinja Starčević was represented before the Court by Mr D. Kalaba, a lawyer practising in Sarajevo. 3. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić. 4. The Serbian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right. 5. The applicants or their spouses were officers of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The present case concerns their attempts to repossess their pre-war flats in Sarajevo. 6. Practically all flats in the former SFRY were part of the system of “social ownership”. They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. All citizens of the SFRY were required to pay a means-tested contribution to subsidise housing construction. However, the amount an individual had contributed was not amongst the legal criteria taken into account with regard to waiting lists for the allocation of such flats. 7. On 6 January 1991 JNA members were offered the opportunity to purchase their flats at a discount on their market value (see the Military Flats Act 1990, Zakon o stambenom obezbjeđivanju u Jugoslovenskoj narodnoj armiji, Official Gazette of the SFRY no. 84/90). Between 1981 and 1989 the applicants, or their spouses, were allocated military flats in Sarajevo which they later purchased under the terms of the Military Flats Act 1990. 8. On 18 February 1992 Bosnia and Herzegovina suspended the sale of military flats on its territory (see the Suspension on the Sale of Flats Decree 1992, Uredba o privremenoj zabrani prodaje stanova u društvenoj svojini, Official Gazette of the Socialist Republic of Bosnia and Herzegovina no. 4/92). The Decree was respected in what is today the Federation of Bosnia and Herzegovina, and those who had purchased military flats located in that Entity could not register their ownership and remained, strictly speaking, occupancy right holders (a purchase contract does not of itself transfer title to the buyer under domestic law). 9. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicants, or their spouses, continued their military careers in the VJ forces and left Sarajevo. They were thereafter allocated tenancy rights of unlimited duration on military flats in Serbia, which some of them even purchased later. 10. During the war, the local armed forces (namely, the ARBH, HVO and VRS forces) assumed nominal control of all non-privatised military flats on the territory under their respective control (Zakon o preuzimanju sredstava bivše Socijalističke Federativne Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96; Odluka o preuzimanju vojnostambenog fonda JNA, Official Gazette of the Republika Srpska no. 16/92; Zakon o sredstvima i finansiranju Armije Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/93, 17/93 and 13/94; Odluka o utvrđivanju namjene i prenošenju prava upravljanja i korištenja sredstvima bivše Socijalističke Federativne Republike Jugoslavije, koje je koristila bivša JNA, a koja se nalaze na području Federacije Bosne i Hercegovine; Official Gazette of the Republic of Bosnia and Herzegovina no. 24/96). Although on 1 January 2006 those forces merged into the armed forces of Bosnia and Herzegovina, non-privatised military flats are still under the nominal control of the Entities. 11. A more detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia in Herzegovina is provided in Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, §§ 5-8, 3 May 2012. 12. The facts of the case, as submitted by the parties, may be summarised as follows. 13. In 1982 the applicant’s husband, a JNA officer, was allocated a military flat in Sarajevo. 14. On 11 February 1992 the applicant’s husband bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 190,385 Yugoslav dinars. 15. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant’s husband continued his military career in the VJ forces. 16. On 15 September 1998 the applicant’s husband applied to the competent domestic authorities to have the flat in Sarajevo restored to him. After her husband’s death, the applicant continued those proceedings (in accordance with the Housing Act 1984, which is still in force, spouses share occupancy rights). 17. On 26 September 2000 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to H.N., a member of the ARBH forces. 18. Following two remittals on procedural grounds, on 27 October 2003 the application for restitution was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 19. On 12 July 2004 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 27 October 2003. On 28 September 2006, following an application for judicial review, the Sarajevo Cantonal Court (“the Cantonal Court”) upheld the second-instance decision. 20. On 1 December 2010 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade. 21. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 54 below). 22. In 1988 the applicant, a JNA medical officer, was allocated a military flat in Sarajevo. 23. On 23 December 1991 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 701,038 Yugoslav dinars. 24. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 2002. 25. On 2 January 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to N.A., a member of the ARBH forces. 26. On 11 December 1997 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade. On 2 September 1998 he purchased that flat. 27. On 19 January 1998 the applicant applied for the restitution of his flat in Sarajevo. 28. Following one remittal on procedural grounds, on 11 February 2004 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 29. On 23 July 2004 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 11 February 2004. 30. On 23 February 2007 the Cantonal Court, following an application for judicial review, upheld the second-instance decision of 23 July 2004. On 8 September 2009 the Supreme Court rejected the applicant’s request for extraordinary review of that judgment (zahtjev za vanredno preispitivanje sudske odluke). 31. On 29 December 2009 the applicant lodged a constitutional appeal against the Supreme Court’s decision. 32. On 10 November 2010 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) rejected his appeal as incompatible ratione materiae since it held that the Supreme Court’s decision had not involved an examination of the substance of the applicant’s claims but only of whether the procedural requirements for an extraordinary review of the Cantonal Court’s judgment had been met. 33. On 2 September 2003 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, held that the applicant was neither a refugee nor a displaced person within the meaning of Annex 7 and declined jurisdiction. On 21 December 2005 the restitution commission rejected the applicant’s request for reconsideration of his claim. 34. On 9 February 2010 the Court of Bosnia and Herzegovina, following an application for judicial review, quashed the decisions of 2 September 2003 and 21 December 2005 and remitted the case for reconsideration. In the meantime, however, the restitution commission had ceased to exist and its cases were taken over by the competent municipal housing authority. It would appear, however, that no decision was taken as regards the applicant’s request following remittal. 35. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 54 below). 36. In 1989 the applicant, a JNA officer, was allocated a military flat in Sarajevo. 37. On 11 February 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 424,363.5 Yugoslav dinars. 38. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces. 39. On 10 February 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to H.H., a member of the ARBH forces. 40. On 27 March 1997 the applicant was allocated tenancy right of unlimited duration on a military flat in Novi Sad, Serbia. On 22 May 1997 he purchased that flat. 41. On an unknown date he applied to the competent domestic authorities to have his flat in Sarajevo restored to him. On 3 November 2000 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 42. On 30 May 2001 the Ministry of the Sarajevo Canton upheld the first-instance decision of 3 November 2000. It would appear that the applicant did not appeal against that decision. 43. On 16 April 2002 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, held that the applicant was neither a refugee nor a displaced person within the meaning of Annex 7 and declined jurisdiction. On 19 November 2002 the restitution commission rejected the applicant’s request for reconsideration of his claim. 44. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 54 below). 45. In 1981 the applicant, a JNA officer, was allocated a military flat in Sarajevo. 46. On 14 February 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 355,965 Yugoslav dinars. 47. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces. His military service was terminated in September 1992. 48. On 9 April 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to S.Č., a member of the ARBH forces. 49. On 15 April 1998 the applicant applied to the competent domestic authorities to have his flat in Sarajevo restored to him. Following two remittals on procedural grounds, on 8 October 2003 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 50. On 28 April 2004 the Ministry of the Sarajevo Canton upheld the first-instance decision. On 26 January 2007, following an application for judicial review, the Cantonal Court upheld the second-instance decision. 51. On 14 October 2009 the Constitutional Court rejected the applicant’s constitutional appeal and upheld the impugned decisions. 52. On an unknown date the applicant was allocated tenancy right of unlimited duration on a military flat in Serbia. 53. It would appear that he has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 54 below). 54. On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void (Zakon o preuzimanju sredstava bivše Socijalističke Federative Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96). Thereafter, the legislation regulating this matter, the Privatisation of Flats Act 1997 (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette of the Federation of Bosnia and Herzegovina nos. 27/97, 11/98, 22/99, 27/99, 7/00, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08 and 23/09) and the Restitution of Flats Act 1998 (Zakon o prestanku primjene Zakona o napuštenim stanovima, Official Gazette of the Federation of Bosnia and Herzegovina nos. 11/98, 38/98, 12/99, 18/99, 27/99, 43/99, 31/01, 56/01, 15/02, 24/03, 29/03 and 81/09), underwent numerous changes and all such contracts were declared legally valid. However, two categories of buyer are not entitled to repossess their flats and to register their title to them (see section 39e of the Privatisation of Flats Act 1997 and section 3a of the Restitution of Flats Act 1998). The first category concerns those who served in foreign armed forces after the 1992-95 war. The second concerns those who acquired occupancy or equivalent rights to a military flat in a successor State of the SFRY, like the present applicants. However, they are now entitled to compensation under section 39e of the Privatisation of Flats Act 1997. While the compensation had initially been envisaged as the refund of the amount paid for the flats in 1991/92 plus interest at the rate applicable to overnight deposits, on 30 March 2012 the Constitutional Court (decision no. U 15/11) declared that method of determining the amount of compensation unconstitutional and ordered the Parliament of the Federation of Bosnia and Herzegovina to amend it in line with Đokić (cited above, §§ 63 and 72). 55. For a more detailed analysis of the relevant domestic law and practice and of the relevant international documents, see Đokić (cited above, §§ 35-45) and Mago and Others (cited above, §§ 53-69). 56. It has no longer been possible to acquire occupancy rights in Serbia since 1992 (see section 30(1) of the Housing Act 1992, Zakon o stanovanju, Official Gazette of Serbia nos. 50/92, 76/92, 84/92, 33/93, 53/93, 67/93, 46/94, 47/94, 48/94, 44/95, 49/95, 16/97, 46/98, 26/01, 101/05 and 99/11). Instead, current and retired members of the armed forces and current and retired staff of the Ministry of Defence have thereafter been entitled to equivalent tenancy rights of unlimited duration on military flats or, in case of a lack of suitable flats, mortgage loans co-financed by the State on condition that they or their spouses or children do not have occupancy or equivalent rights to a flat in any of the former Republics of the SFRY (the Military Housing Ordinance 1994, Pravilnik o načinu i kriterijumima za rešavanje stambenih pitanja zaposlenih u Saveznom ministarstvu za odbranu i Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 30/94, 39/94 and 6/96; the Military Housing Ordinance 1995, Pravilnik o načinu i kriterijumima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 5/95, 18/96, 56/96, 58/96, 42/97 and 9/00; the Military Housing Ordinance 2002, Pravilnik o načinu, kriterijumima i merilima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Ministarstvu odbrane i Vojsci Srbije i Crne Gore, published in an internal gazette of the Ministry of Defence nos. 20/02, 36/03, 34/04 and 29/05; the Military Housing Ordinance 2005, Pravilnik o rešavanju stambenih pitanja u Ministarstvu odbrane, published in an internal gazette of the Ministry of Defence nos. 38/05, 16/08, 26/08 and 39/08; and the Military Pensioners Ordinances 1994 and 2010, Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence nos. 31/94, 19/95, 26/96, 1/97 and 45/08 and Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence no. 34/10). Therefore, those who occupied military flats in Bosnia and Herzegovina before the war have as a rule been required to give up their rights to those flats in order to qualify for a military flat or a loan in Serbia or Montenegro (see sections 6-7 and 87 of the Military Housing Ordinance 1994; sections 7-8 and 74 of the Military Pensioners Ordinance 1994; and sections 6-7 and 85 of the Military Housing Ordinance 1995). 57. Section 39(2) of the Housing Act 1992 provides that the holder of a tenancy right of unlimited duration in respect of a flat may purchase that flat under the same conditions as an occupancy right holder. | 0 |
test | 001-170652 | ENG | RUS | COMMITTEE | 2,017 | CASE OF DZHABAROV AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. In application no. 59613/14, the applicant also raised other complaints under the provisions of the Convention. | 1 |
test | 001-158025 | ENG | TUR | CHAMBER | 2,015 | CASE OF AFET SÜREYYA EREN v. TURKEY | 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) | Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Ksenija Turković | 5. The applicant was born in 1974 and lives in Istanbul. 6. On 7 June 1999 the applicant and a number of other suspects were taken into police custody by officers from the Security Branch of the Istanbul Security Headquarters (Güvenlik Şube Müdürlüğü) on suspicion of membership of the DHKP-C (the abbreviation for the Revolutionary People’s Liberation Party/Front, an illegal organisation). The applicant alleges that she was subjected to torture by police officers for four days. 7. On 9 June 1999 the applicant was taken to a forensic doctor, who noted that the applicant had complained that she had been hung by her arms for approximately ten minutes and that her head had been banged against a wall. The medical report indicates that she had a scrape under her left armpit, a 7-8 cm-long large brown macule on her right forearm and a 3 cmlong oedema on her forehead above the nose. 8. On 11 June 1999 the applicant was brought before the Istanbul public prosecutor and then before a judge at the Istanbul State Security Court. Before both authorities she denied all accusations against her and complained that she had been subjected to ill-treatment while in police custody. She was subsequently detained pending trial. 9. On 14 June 1999 the applicant was examined by the prison doctor, who reported a 4x5 cm mark on her right forearm and a swelling on her right clavicle. According to the medical report, the applicant had stated that her arms felt painful and she had a headache. 10. On 18 June 1999 the applicant filed a complaint with the public prosecutor’s office in Istanbul against the police officers of the Security Branch of the Istanbul Security Headquarters, accusing them of having tortured her. She stated in particular that she had been hung by her arms and had received blows to her head. 11. On 8 June 2001 the Fatih public prosecutor issued a decision not to prosecute. The public prosecutor considered that the applicant had not been questioned as a suspect and that there was no evidence showing that the accused police officers had committed the crime of torture. The applicant claims that she was not notified of this decision. 12. On an unspecified date the investigation was reopened. Accordingly, on 18 April 2003 the applicant’s statement was taken by a public prosecutor in the prison where she was detained on remand. The applicant stated that at some time in June 1999 she had been taken into custody at the Anti-Terror Branch of the Istanbul Security Headquarters, where she had been ill-treated for seven to eight days. She noted in particular that she had been undressed, threatened with rape, beaten and hung by her arms by the police officers. The applicant stated that she had been unable to use her arms for approximately one month subsequent to her detention in police custody. She further stated that she could identify the police officers in question. 13. On 6 August 2003 the Fatih public prosecutor filed an indictment with the Fatih Criminal Court, charging two police officers, A.T. and Z.T., under Article 245 of the former Criminal Code with inflicting illtreatment on the applicant while in police custody between 7 and 10 June 1999. 14. On 8 September 2005 the Fatih Criminal Court considered that it lacked jurisdiction to hear the case. The court held that the accusations against A.T. and Z.T. could not be qualified as ill-treatment within the meaning of Article 245 of the former Criminal Code but should be qualified rather as torture under Article 243 of the same Code. The court therefore ordered the transfer of the case to the competent court. 15. The case was referred to the Istanbul Assize Court, which on 22 November 2005 also held that it lacked jurisdiction. It held that in order for Article 243 of the former Criminal Code to apply, the acts of illtreatment or torture had to be inflicted with the intention to extract information. The court held that the applicant had complained about having been subjected to torture, but she had not alleged that the intent behind such acts had been to extract information from her. The complaint therefore fell under Article 245 of the former Criminal Code and accordingly within the jurisdiction of the Fatih Criminal Court. Consequently, the court referred the case to the Court of Cassation to resolve the jurisdictional dispute. 16. On 2 October 2006 the Court of Cassation held that the case fell within the jurisdiction of the Istanbul Assize Court. 17. On 6 March 2007 the Istanbul Assize Court held a hearing in the case during which the applicant joined the proceedings as a civil party. At the same hearing, the applicant made statements to the court. During her examination, she identified Z.T. in the courtroom as one of the police officers who had interrogated and tortured her. The applicant stated that she had been held at two different facilities while in custody. According to her statements to the court, at the first facility she had been beaten; at the second facility, she had been subjected to various forms of torture, including reverse hanging and sexual harassment by around ten police officers. She had been stripped naked and threatened with rape in front of her sister, and she had been sprayed with pepper gas. At the end of the hearing, the Istanbul Assize Court discontinued the proceedings against the accused police officers on the ground that the prosecution of the offences proscribed by Articles 243 and 245 of the former Criminal Code had become timebarred (the period being seven years and six months at the relevant time). 18. On an unspecified date the applicant lodged an appeal against the judgment of 6 March 2007. 19. On 31 January 2008 the Court of Cassation rejected the applicant’s appeal and upheld the judgment of the Istanbul Assize Court. | 1 |
test | 001-179570 | ENG | MLT | CHAMBER | 2,017 | CASE OF PEŇARANDA SOTO v. MALTA | 4 | No 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 application) | Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 6. The applicant was born in 1977 and at the time that he lodged the application with the Court was serving a sentence of eight years’ imprisonment in the Corradino Correctional Facility, Malta. He had been detained since 19 February 2010. 7. The sentence was imposed on him by the Criminal Court on 14 March 2012 for drug related offences. The Criminal Court also ordered him to pay a fine of 23,500 euros (EUR) as well as EUR 1,462.94 in fees payable to the experts, which were to be converted into a further term of imprisonment if not paid. On 13 April 2012 the aforementioned sums were converted into 490 days’ imprisonment. Following an amnesty and payment of the fee for the experts, the applicant was released on 14 April 2016 and flown back to Costa Rica after being given the requisite vaccinations. 8. On 12 July 2013, between 2 p.m. and 3 p.m., the applicant was assaulted by another inmate, causing the former to allegedly lose consciousness and sustaining fractures to his facial and leg bones. The Government admitted that the applicant had sustained injuries to his leg and face but argued that there was no evidence that he had lost consciousness at any time. 9. According to the applicant, disciplinary measures were taken by the prison Chief Security officer, who ordered that he be placed in solitary confinement. Thus, despite his condition, the applicant had had to pack his belongings and walk to the solitary confinement unit. At an unspecified time the prison officer brought the applicant a pair of crutches to assist him walking. According to the Government, disciplinary measures were taken against another inmate involved in the incident but not against the applicant, who had been transferred (from Division 2) to Division 6, a more secure division, immediately after the incident. They also submitted that the applicant had not been placed in solitary confinement. 10. The applicant alleged that he did not receive any medical treatment for one or two hours after the incident had taken place. Thereafter he had been kept in solitary confinement without assistance from the prison medical staff. The applicant explained that he had subsequently been seen by a doctor, who had referred him to the hospital, where he underwent surgery. He stated that a plaster cast had been put around his leg and that he had been informed that he might need to undergo surgery if his eyesight was damaged as a result of the injury of his facial bone. Regarding the period of solitary confinement, the applicant claimed that he had been held on the second floor of the building and had not been allowed to see anyone or to use the communal areas. 11. According to the applicant, the cell did not have adequate ventilation, the heat was unbearable and there was no cold water to drink since he did not have access to the ground floor. Consequently he had to drink warm water and an occasional bottle of cold water (when his friend managed to obtain one). The applicant claimed that he had specifically needed to drink water since he was taking antibiotics. 12. The heat and lack of ventilation caused the applicant, who is an asthma sufferer, to struggle with his breathing. He also complained that he had had to go to the clinic for treatment of his injuries himself since the nurses refused to visit his cell because of the unbearable heat. He had therefore had to use the staircase whilst still walking with crutches. 13. The applicant stated that he had been kept in the isolation unit for twenty-two days, and after five days had become suicidal. Subsequently he had been transferred to a unit that had fewer restrictions. The applicant complained that he had been placed in the same unit as his aggressor, putting his physical integrity at risk since he could have been attacked again. 14. The applicant submitted that upon his release from solitary confinement, he had spent most of his time in his cell. On an unspecified date he had asked to see a psychologist urgently, but was not able to speak to one for twenty-seven days. The psychologist referred the applicant to a psychiatrist, who eventually prescribed medication. However, the applicant had refused to take the medication and claimed that the psychiatrist had refused to help him. Later, he had refused to consult the prison psychiatrist because he no longer trusted the prison staff and did not want to be sent to a psychiatric hospital since the facilities there were allegedly worse than those in the prison. 15. According to the Government the applicant was admitted to the medical infirmary of the prison at 4.15 p.m. on 12 July 2013 and a referral to the emergency department of the state hospital was made at 5 p.m. The referral note issued by the doctor indicated that the applicant had swelling in the face, a bruise on one loin, and severe swelling with limited movement in his right ankle. At an unspecified time on the same day he was provided with a pair of crutches by the prison medical infirmary. On the same day he was also admitted to hospital and returned to cell 8 in Division 6 on 14 July 2013. The case summary drawn up on 14 July – before his discharge and submitted to the Court showed that all the medical investigations had been concluded and the results received prior to his discharge from hospital. According to the case summary the ankle xray revealed a fracture and there was subluxation of the right foot; there was a head injury, specifically a fracture of the orbit and of the maxillary sinus; there were no signs of injury or fluid collection in the internal organs; an ophthalmic review had been carried out and the patient had been discharged from that department as well as from the orthopaedic ward where he had undergone tests and treatment for his bone injuries. The summary also showed that the applicant had to use crutches and to avoid bearing weight for the two weeks leading up to his outpatient appointment, after which he still would not be able to bear weight fully. It ordered a change of dressing to be undertaken within three days and prescribed appropriate medicines. Records also showed that a nurse had visited Division 6 to attend to the applicant on 15 July – the note in the register reads as follows: “Nurse C. and S. came to Division 6 at about 11.35 am to visit Fernando Soto in his cell”. Other notes show that a nurse went to Division 6 on subsequent days to give inmates medication, without indicating their names. Another note also showed that a certain Ms M. (whose role is unidentified) visited the applicant on 16 July. 16. The Government submitted that the applicant had been held in Division 6 for his own safety. The Chief Security officer had ordered that the applicant should not meet the other inmate involved in the argument and that the applicant’s cell be opened for seven hours a day until further instructions. The applicant was initially placed in cell 8 (on the upper floor of Division 6), which was about six metres away from the guard room, thus making it possible to observe the applicant’s cell, which was to be left open. The Government submitted that, by order of a manager, on 21 July 2013 the applicant had been allowed to mingle with all other inmates without restriction. The applicant had then been transferred to cell 13 on a lower floor as soon as it was deemed safe for him, specifically on 26 July 2013. On 7 August 2013 he had been transferred to Division 5, which was also a secure division although it had fewer restrictions. The applicant was finally transferred to Division 3 on 22 October 2013. According to the Government, the applicant had never been kept in solitary confinement, nor had the inmate involved in the argument with the applicant been accommodated in any of the above-mentioned Divisions while the applicant was there, except for a short stay in Division 6. 17. According to the Government the first request for psychological services made by the applicant had been in April 2014. According to the documents submitted, thereafter he was seen monthly by the psychologist until April 2015 and later three or four times per month until his release in 2016 (from November 2015 onwards he had been seen by a counselling trainee). Moreover, in April 2015 the applicant had been referred for psychiatric services by the psychologist. The Government submitted that although the applicant had a past history of being suicidal, there was no record that he had attempted suicide during the period he was detained in Division 6. The report prepared by the senior psychologist in prison (dated 27 April 2015) noted that the applicant attended his sessions regularly and was making progress. It noted that he felt guilty for not having made amends with his mother before her death (a few months earlier) and that he had deliberately provoked a fight. The report described the applicant as being “edgy and hyper-vigilant but not psychotic”, his sleep was not problematic, his appetite was normal and he was cooperative. He had been diagnosed with post-traumatic stress disorder, but no other affective disorder was evident. He was put on medication for depression and further followups with the psychologist. He was seen again in a follow-up session with the psychiatrist on 4 May 2015, but on 1 June 2015 he refused a psychiatric review. 18. In a letter dated 10 July 2014, the applicant alleged that he had not received rehabilitative treatment for his fractures since the prison officials had unilaterally decided to cancel the treatment. According to the Government, on 14 July 2013, prior to being discharged from hospital, the applicant had been seen by a physiotherapist and found fit for discharge. The applicant had also been given three appointments (between July and August 2013) with the ENT department of the hospital in connection with his facial injuries. On 20 July 2013, the applicant had been referred by the prison medical officer to the emergency department of the hospital because of a recurrent swelling of his right ankle. The applicant had at the time already been taking antibiotics and his stitches were intact. On 21 July, 31 July, 28 August, and 30 October 2013, x-rays were taken of the applicant’s right ankle by the orthopaedic department of the hospital. The applicant was also referred to the ophthalmology department on 5 August 2013. Further referrals to hospital were made by the prison medical doctor, but the Government claimed they were unrelated to the injuries suffered as a result of the incident on 12 July 2013. One such referral was made on 13 June 2014. An outpatient service appointment record given to the applicant listed appointments scheduled for 18 November 2014 and 6 February 2014 at the medical outpatients’ clinic, which the applicant also attended. It is recorded that the applicant refused to attend an appointment scheduled for 12 June 2015. 19. In a subsequent letter dated 11 May 2015 (at a time when he was held in Division 3) the applicant explained that his cell window was positioned at a height of two metres and was therefore very difficult to open. It was also small and had three different bands of metal shutters, which hampered the entry of natural light. He claimed that his cell had lacked good ventilation – although there were two vents, one of them had been blocked. He alleged that the parts of the ceiling were falling apart and that white and yellow dust caused him to experience breathing problems, since he was an asthma sufferer. The applicant also alleged that the water was not drinkable and that he had therefore had to buy water with the little money that he earned. He claimed that foreign inmates were treated differently from the Maltese inmates since the former had to wait longer to have their petitions decided. 20. The Government submitted that at the time when this letter was written, the applicant was accommodated in cell 154 in Division 3. 21. The Government submitted that inmates were responsible for the upkeep of their cells. For this purpose, the materials needed to carry out basic repair work in the cells were provided free of charge. If an inmate required assistance for more specialised work, the Trade Section personnel would carry out the work necessary to keep the cell in good condition. The Government submitted pictures dated 2016 showing that the ceiling in cell 154 was in good condition and that the current resident was carrying out some works and removing paint from the ceiling, exposing the stone underneath. 22. The Government submitted that all the cells were equipped with running water which was fit for human consumption. According to certification dated 2015 that has been submitted to the Court, water in the prison (no specific location was indicated in the reports) had been certified by the Public Health Laboratory as being fit for consumption, although the mains supply and the other Divisions (including no. 3) had been recorded as having a chloride content which exceeded the recommended parameter value indicated in the relevant law. The Government submitted that the water was tested and certified approximately every six months. In addition to the availability of running potable tap water, the inmates were allowed to purchase bottled water from the residents’ tuck-shop. 23. In 2013, the applicant received EUR 27.95 every four weeks in socalled “Gratuity” money and EUR 46.90 every four weeks for work carried out assembling dolls. Between January 2013 and April 2016 the applicant received EUR 3,526.95 in total. A six-pack of water at the tuckshop cost EUR 2.24 or an individual bottle EUR 0.38. Government submitted that all inmates received equal treatment irrespective of the State of their origin. 24. In a letter dated 5 August 2015, the applicant alleged that the prison authorities had refused to forward his letters to the Court in order to dissuade him from pursuing his case before it. He was therefore corresponding with the Court through another address. 25. From the records of the correspondence sent by the applicant held at the prison authorities and submitted by the Government, it is apparent that the applicant sent registered letters to the Court on 12 February, 1 April and 3 June 2014 and an unregistered letter on 6 May 2015. No further requests were made by the applicant to send any communication to the Court, although letters were sent by the applicant to other addresses on 3 September, 22 September and 7 October 2015, and on 4 February and 6 March 2016. | 1 |
test | 001-178181 | ENG | SVN | CHAMBER | 2,017 | CASE OF KRAJNC v. SLOVENIA | 3 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque | 5. The applicant was born in 1952 and lives in Celje. 6. He had been a professional truck driver until he became unable to work due to epilepsy. 7. On 29 September 2003 the applicant was certified as having a “category III work-related disability” as a result of his condition. He was found to have a right to be reassigned to a suitable position of employment where he and others would not be at risk because of his condition, with (retroactive) effect from 14 August 2002. 8. On 21 February 2005 the Celje regional unit of the Pension and Disability Insurance Institute of Slovenia (hereinafter “the regional ZPIZ”) granted the applicant a so-called “allowance for the period of waiting to be reassigned to or employed in a different appropriate position of employment” (hereinafter “waiting period allowance”) from 8 October 2004. Though the sums appear to be lower during the first few months, he had been subsequently receiving around 390 euros (EUR) per month in waiting period allowance. The regional ZPIZ relied on section 123 of the Pension and Disability Insurance Act (hereinafter “the 1992 Act”) and section 446 of the new Pension and Disability Insurance Act (hereinafter “the 1999 Act” – see paragraphs 24 and 25 below). It noted that the applicant had been registered as unemployed on 3 March 2003 and had been a beneficiary under section 22 of the 1999 Act from 1 March 2003 to 7 October 2004. Thus, once his unemployment allowance had come to an end he had become entitled to a waiting period allowance under section 123 of the 1992 Act (see paragraph 24 below). The regional ZPIZ also noted that, under section 193 of the 1992 Act, beneficiaries were entitled to a waiting period allowance until they fulfilled the conditions for retirement (ibid.). 9. On 15 October 2010 the applicant’s doctor informed the regional ZPIZ about a shoulder injury the applicant had sustained and requested a reassessment of his level of disability. 10. On the basis of, inter alia, information provided by the applicant’s doctor, the regional ZPIZ, on 2 February 2011, decided that the applicant had a right to be reassigned to another position of employment with several limitations, such as not to work at unprotected heights or drive category C and E vehicles, with effect from 1 February 2011. Subsequently, on 28 June 2011 it adopted a decision granting him a disability allowance (nadomestilo za invalidnost) from 24 February 2011 onwards. The regional ZPIZ relied on the 1999 Act, which had introduced certain new disability benefits (the term “disability benefit” is used to cover any type of allowance that arises from a disability) and discontinued some of those provided for under the 1992 Act, including the waiting period allowance. Sections 397 and 446 of the 1999 Act stipulated that a right to a disability allowance applied as from 1 January 2003 (see paragraph 25 below). The regional ZPIZ noted in its decision that the applicant had not been insured under the compulsory insurance scheme at the onset of his disability, but had been registered as unemployed on 3 March 2003 within thirty days of the final decision on his disability, as required by section 97 of the 1999 Act. It was established that his capacity to work had in fact further reduced, even though the category (III) of his disability remained unchanged. The regional ZPIZ found that, pursuant to section 94(1)(1) and (3)(1) of the 1999 Act, he should receive a benefit in the form of disability allowance, which in his case amounted to EUR 192.91. It drew the applicant’s attention to section 185 of the 1999 Act, which required beneficiaries to inform the ZPIZ of any change in circumstances which could affect their rights under that Act (see paragraph 26 below). 11. On 21 July 2011 the applicant appealed against the above decision, arguing that in determining the amount of his disability benefit, the regional ZPIZ should have respected the principle of acquired rights. He pointed out that his benefit had reduced considerably, even though his disability had in fact worsened, and claimed that such a decision was unlawful. 12. On 21 October 2011 the central Pension and Disability Insurance Institute of Slovenia (hereinafter “the central ZPIZ”) dismissed the applicant’s appeal, confirming that the regional ZPIZ had properly applied the law and correctly calculated the amount of his disability allowance. 13. On 5 December 2011 the applicant lodged a claim with the Celje Labour and Social Court challenging the above decisions. He reiterated that the disability allowance granted to him under the 1999 Act violated his acquired rights and that instead of increasing his benefit it reduced it by half, which was unlawful and unconstitutional. 14. On 26 March 2012 the Celje Labour and Social Court dismissed the applicant’s claim. It explained that while recipients of disability-related rights under the 1992 Act retained their acquired rights after the date set out in section 446 of the 1999 Act, in the applicant’s case a reassessment of his disability had been carried out on 2 February 2011 due to a worsening of his condition (see paragraph 10 above), which had resulted in further workplace limitations and his rights being consequently determined anew. In cases where a fresh assessment was made the 1999 Act was to be applied. The court concluded that the 1999 Act did not contain the right to a waiting period allowance. Instead, under section 94, it provided for the disability allowance (see paragraph 25 below) which had been correctly granted to the applicant. 15. On 25 April 2012 the applicant appealed against the judgment, repeating the complaints he had made before the first-instance court and alleging that he ought to have been informed of the consequences of a request for a reassessment of his disability. If that had been the case, he would have “forbidden” his doctor from making such a request. Lastly, he reiterated that the decision of the regional ZPIZ of 28 June 2011 (see paragraph 10 above) was unlawful and unconstitutional, as it violated his right to social security; he pointed out that he was unable to survive on the newly determined disability allowance. 16. On 21 June 2012 the Higher Labour and Social Court dismissed the applicant’s appeal, confirming the position of the lower court that the applicant’s case concerned a change in the level of disability, which had required a fresh determination of his disability benefit. In such a situation, section 397(3) of the 1999 Act provided that the applicant acquired rights under the Act. Also, since the applicant’s rights had been determined anew, the Higher Labour and Social Court concluded that there had been no violation of his acquired rights related to social security, and thus no violation of the Constitution. 17. On 4 September 2012 the applicant lodged an appeal on points of law before the Supreme Court, arguing that he could not have legitimately expected that the worsening of his disability would result in a severe reduction of his disability benefit. In that connection, he alleged that the Higher Labour and Social Court’s view that the reduction did not interfere with his acquired rights or constitute a violation of his constitutional right to social security was arbitrary, as the court had provided no reasoning for that conclusion. The applicant further alleged that the newly determined amount of disability benefit interfered with his constitutional right to property. 18. On 5 March 2013 the Supreme Court dismissed the applicant’s appeal on points of law, finding that the Higher Labour and Social Court had sufficiently explained that the change in his level of disability had required a fresh determination of his benefit in accordance with the 1999 Act. 19. On 21 May 2013 the applicant lodged a constitutional complaint against the Supreme Court’s judgment, alleging a violation of his constitutional rights to property and social security. He argued that the reduction in the disability benefit had put his subsistence at risk and failed the test of proportionality. 20. On 18 November 2013 the Constitutional Court refused to accept the applicant’s complaint for consideration on the merits, referring to section 55b(2) of the Constitutional Court Act (see paragraph 27 below). 21. In the meantime, on 22 May 2013, the applicant fulfilled the conditions for a retirement pension in the amount of EUR 374.73 and his disability allowance was discontinued from that date. He thus received the disability allowance for a period of twenty-seven months. 22. Data concerning the applicant’s income provided by the Slovenian tax authorities shows that he received EUR 4,908 in 2010 in pension and disability insurance and, after the impugned change in his allowance, EUR 2,902 in 2011 and EUR 2,480 in 2012. | 1 |
test | 001-181858 | ENG | POL | CHAMBER | 2,018 | CASE OF CHRISTIAN BAPTIST CHURCH IN WROCŁAW v. POLAND | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione materiae;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 5. The applicant is a legal entity, a local community of the Christian Baptist Church in the Republic of Poland operating on the basis of the Act of 30 June 1995 on Relations Between the Republic of Poland and the Christian Baptist Church Act (ustawa o stosunku Państwa Polskiego do Kościola Chrześcijan Baptystów w RP – hereinafter “the 1995 Act”) with its seat in Wrocław. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The case concerns a property with a four-storey building and another building dedicated to sacral purposes in Wrocław. Before World War II the property was used by the Baptist Commune belonging to the Bund Evangelisch-Freikirchlicher Gemeinden in Deutschland operating on the territory of the German Reich. The property number was 1077/42. It measured 0.785 ha. 8. On 4 September 1946 the Wrocław Governor (Wojewoda Wrocławski) decided that the property in question should become subject to the applicant church’s management (przejęcie w zarząd) on the basis of section 2(4) of the 1946 Decree on abandoned property (dekret o majątkach opuszczonych i poniemieckich – hereinafter “the 1946 Decree”). 9. In 1956 the applicant church lodged a request to be registered in the land and mortgage register as the owner of the property and the request was granted. The property was registered under the number 945. 10. On 23 April 1959 the Minister of the Economy announced a new interpretation of section 2 (4) of the 1946 Decree. 11. On 23 June 1959 the District Residential Buildings Board for Wrocław-Krzyki (Dzielnicowy Zarząd Budynków Mieszkalnych) decided that all kinds of property which were subject to the church’s management were to pass into the ownership of the State and ordered that the applicant church transfer the property in question to the State. The order did not concern the part of the property which was dedicated exclusively to sacral purposes. 12. On 19 August 1966 a new land-register entry 35905 was opened for the property no. 1077/42. The land-register entry 945 was however not closed. 13. In 1968 the property was registered under the land-register number 35905 was given a new plot number 9 and its area was recalculated. The new measurement was 0.371 ha. It appears that the plot number 9 constituted only a part of the previous property number 1077/42 and comprised only the building dedicated to sacral purposes. 14. The remaining part of the original property number 1077/42, which comprised the four-storey building, was given new plot numbers 39 and 33/5. It measured 0.325 ha and a new land-register entry 63650 was opened for it. In 1977 the State was registered as the owner of this property and, after the reform of the local governments of 1990, the property was transferred to the City of Wrocław. 15. The present application concerns the right to the property referred to above in paragraph 14. 16. On 9 May 1996 the applicant church requested that the Wrocław Governor issue a decision confirming the applicant church’s ownership of the property in question. It relied on the newly enacted 1995 Act (see paragraphs 47-50 below). 17. On 12 September 1996 the Wrocław Governor refused to issue a decision which would confirm that the property in question belonged to the applicant church. The Governor found that the applicant church had failed to satisfy a requirement laid down in section 39 of the 1995 Act, specifically that it had not possessed the property in question on the day of entry into force of the Act relied upon. The Governor further held that: “... , section 40 of the Act likewise cannot be applied because the property in question is located on territory which was not part of Poland before 1 September 1939. The fact that the property was owned by an organisational unit of the Baptist Church operating in the German Reich does not constitute a basis to claim return of ownership because its ownership was transferred to the State under the [1946 Decree].” 18. On 23 September 1996 the applicant church appealed against this decision to the Minister of the Interior and Administration. 19. On 18 February 1998 the applicant church sent a letter to the Minister, specifying that the time-limits laid down in the Code of Administrative Proceedings had been exceeded and requested that the Minister issue a decision. 20. On 1 July 1998 the Minister replied that the length of the proceedings was attributable to amendments of the 1995 Act and informed the applicant church that the relevant decision would be issued by 15 August 1998. 21. This time-limit was not respected and therefore, on 12 January 1999, the applicant church lodged with the Supreme Administrative Court a complaint in respect of the alleged inactivity of the administrative authority. 22. On 5 March 1999, before examination of the applicant church’s complaint, the Minister of the Interior and Administration issued a decision, annulling the challenged decision and ordering the return of the case to the Governor. The Minister ordered that, when re-examining the case, the Governor should take into account the amended section 4 of the 1995 Act. 23. In view of the fact that the Minister had issued a decision, on 28 April 1999 the applicant church withdrew the complaint of 12 January 1999 concerning the inactivity of the administrative authority. 24. After remittal of the case, on 24 March 1999, the Governor of Lower Silesia (Wojewoda Dolnośląski) asked the Wrocław Commune whether there was any property available which could be granted to the applicant church in return for the property in question. It appears that the Governor’s letter was left without reply. 25. On 29 May 1999 the Governor requested from the Minister of the Interior and Administration an official interpretation of the amended section 4 of the 1995 Act “in view of the many doubts as regards the proper interpretation of this provision”. 26. On 20 June 2000 the Minister replied that, since the administrative authorities were bound by provisions of law binding on the day of decision, it was irrelevant that the applicant church’s original request had been lodged when section 4 of the 1995 Act had had different wording. 27. On 21 July 2000 the applicant church asked the Governor to issue a decision in its case, pointing out that the time-limits laid down in the Code of Administrative Proceedings had been exceeded. 28. On 20 October 2000 the applicant church lodged a complaint (zażalenie) with the Minister of the Interior and Administration that the Governor had exceeded the statutory time-limits and had failed to issue a decision on the merits or to justify the delay in the proceedings. 29. On 7 December 2000 the applicant church lodged a complaint with the Supreme Administrative Court about the alleged inactivity of the Governor. 30. On 1 March 2001 the Minister of the Interior and Administration found the applicant church’s complaint of 20 October 2000 well founded and ordered the Governor to issue a decision on the merits before 30 April 2001. 31. On 30 April 2001 the Governor stayed the proceedings. 32. On 7 July 2001 the applicant church appealed against the decision to stay the proceedings. 33. On 17 December 2001 the Minister of the Interior and Administration allowed the appeal, finding that the proceedings should not have been stayed, annulled the challenged decision and returned the case to the Governor. 34. On 12 March 2002 the Supreme Administrative Court examined the applicant church’s complaint against the inactivity of the administrative authority and ordered the Governor of Lower Silesia to issue a decision on the merits within the time-limit of thirty days. 35. On 21 June 2002 the Governor’s office gave a decision and refused to return the property in question to the applicant church. It found that the applicant church, although registered as owner under the land-register number 945 and treated in the past by the administrative authorities as owner, had never in fact owned the property, which had only been left under the applicant church’s administration (oddane w zarząd). 36. On 12 July 2002 the applicant church appealed. 37. On 23 September 2002 the Minister of the Interior and Administration annulled the challenged decision and returned the case for re-examination to the Governor. The Minister found, among other things, that the Governor had had no right to question the validity of the entry in the land register. 38. On 23 February 2003 the applicant church complained to the Governor about the delay in the proceedings. 39. On 8 February 2007 the Governor’s office gave a procedural decision in which it held that owing to the particularly complicated nature of the case, the decision on the merits could not be issued within the statutory time-limits and set a new deadline for decision of 30 June 2007. 40. On 18 June 2007 the Governor of Lower Silesia gave a decision on the merits and refused to return to the applicant church the property in question. The Governor relied on the amended 1995 Act and found that the applicant church had failed to satisfy the requirements laid down in section 4 of the Act, namely that it could not be a legal successor of the Church which had not operated on the territory of Poland before 1 September 1939. 41. On 11 July 2007 the applicant church appealed. 42. On 6 February 2008 the Minister of the Interior and Administration upheld the challenged decision. 43. On 11 March 2008 the applicant church lodged a complaint with the Warsaw Regional Administrative Court. 44. On 12 September 2008 the Warsaw Regional Administrative Court dismissed the applicant church’s complaint. 45. On 10 November 2008 the applicant church lodged a complaint against the Regional Administrative Court’s judgment with the Supreme Administrative Court. 46. On 13 October 2009 the Supreme Administrative Court dismissed the applicant church’s complaint. The judgment was served on the applicant church’s lawyer on 6 January 2010. | 1 |
test | 001-167492 | ENG | HUN | COMMITTEE | 2,016 | CASE OF BAK AND OTHERS 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) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The case originated in an application (no. 52257/11) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Hungarian nationals, Mr Tibor Bak, Mrs Lászlóné Csatári, Mr István Csillag, Mr András Halász, Ms Boglárka László, Mr Zoltán Lex, Mr Márk Marsi, Mr Sándor Orosz, Mrs Klára Pápainé Armuth, Mr György Rosta and Mr Attila Széles (“the applicants”), on 8 August 2011. A list of applicants is annexed to the present judgment. 2. The applicants were represented by Mr Cs. Tordai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent of the Ministry of Justice. 3. On 31 August 2015 the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention concerning the imposition of 98% tax on part of their severance payment was communicated to the Government. 4. On 10 November 2015 and 9 June 2016 the Court received friendly settlement declarations signed by the Government and seven applicants under which the latter agreed to waive any further claims against Hungary in respect of the facts giving rise to their complaints against an undertaking by the Government to pay Mrs Lászlóné Csatári 20,600 euros (EUR), Mr István Csillag EUR 19,300, Mr Zoltán Lex EUR 46,700, Mr Márk Marsi EUR 8,300, Mr Sándor Orosz EUR 28,300, Mr György Rosta EUR 16,000, and Mr Attila Széles EUR 11,100, to cover any pecuniary and non-pecuniary damage as well as costs and expenses. These sums will be converted into the currency of the respondent State at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. They will be payable within three months from the date of notification of the strike-out decision taken by the Court. In the event of failure to pay these sums within the said three-month period, the Government undertook to pay simple interest on them, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case in respect of these seven applicants. 5. The first applicant, Mr Tibor Bak was born in 1965 and lives in Dunakeszi. From June 2002 he was employed at the State-owned National Development Bank Ltd. His employment was terminated by mutual agreement in June 2010. The upper bracket of his severance payment was taxed at 98% rate. The Government did not contest the levy of the special tax on his severance payment; but in their observations they rectified the tax amount. The first applicant did not contest this. Accordingly, special tax was levied on his severance payment in the amount of 7,617,826 Hungarian Forints (HUF) (approximately EUR 25,400). 6. The fourth applicant, Mr András Halász was born in 1961 and lives in Budapest. From October 2002 he was employed at the State-owned National Export-Import Bank Ltd. His employment was terminated on 29 October 2010. The upper bracket of his severance payment was taxed at 98% rate. The Government did not contest the levy of the special tax on his severance payment; but in their observations they rectified the tax amount. The fourth applicant did not contest this. Accordingly, special tax was levied on his severance payment in the amount of HUF 9,125,270 (approximately EUR 30,400). 7. The fifth applicant, Ms Boglárka László was born in 1967 and lives in Budapest. From April 2007 she was employed at the State-owned MFB Investment Ltd. Her employment was terminated by mutual agreement on 29 October 2010. The upper bracket of her severance payment was taxed at 98% rate. The Government did not contest the levy of the special tax on her severance payment; but in their observations they rectified the tax amount. The fifth applicant did not contest this. Accordingly, special tax was levied on her severance payment in the amount of HUF 6,508,053 (approximately EUR 21,700). 8. The ninth applicant, Mrs Klára Pápainé Armuth was born in 1957 and lives in Budapest. From January 2008 she was employed at the State-owned National Asset Management Ltd. Her employment was terminated by mutual agreement in 2010. The upper bracket of her severance payment was taxed at 98% in the amount of HUF 2,932,623 (approximately EUR 9,700). The Government did not contest this. In a letter dated of 17 March 2016 the ninth applicant submitted that due to some special accounting methods applied in her case, she had received further bonuses from her previous employer calculated pro rata temporis for the years of 2011 and 2012; in respect of these bonuses additional special tax had been levied in the amount of altogether HUF 829,119 (approximately EUR 2,700). The applicant received a certificate from her employer regarding the deduction of special tax from the subsequently received bonuses on unspecified dates in 2011 and 2012. | 1 |
test | 001-156264 | ENG | CYP | CHAMBER | 2,015 | CASE OF A.H. AND J.K. v. CYPRUS | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest;Prompt information);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest;Prompt information);No violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev | 10. The applicants, A.H. (“the first applicant”) and J.K. (“the second applicant”), who are wife and husband, are Syrian nationals of Kurdish origin and were born in Syria in 1985 and 1979 respectively. They live in Paphos. 11. The second applicant left Syria on 25 August 2004 and entered Cyprus illegally on 9 September 2004 after travelling from Turkey. 12. He applied for asylum the next day. 13. The first applicant left Syria at a later date in order to join the second applicant in Cyprus as they had been engaged to be married. She entered Cyprus illegally on 29 November 2007 after travelling from Turkey. 14. The applicants married in Cyprus on 4 December 2007 and the first applicant applied for asylum on 6 February 2008. 15. The applicants’ asylum applications were examined jointly by the Asylum Service. 16. The Asylum Service held an interview with the applicants on 3 March 2009. 17. Their applications were dismissed on 26 March 2009 on the ground that they did not fulfil the requirements of the Refugee Law of 2000-2007 (as amended up to 2007), in that they had not shown that they had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. The Asylum Service noted that there had been contradictions in the account of facts given by the second applicant with regard to his participation in a demonstration concerning the Qamishli events which raised doubts as to his credibility. Furthermore, it considered that there was no possibility of the second applicant being subjected to inhuman or degrading treatment if returned to Syria. Consequently, it held that the asylum applications had not been substantiated. 18. On 24 April 2009 the applicants lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 19. On 26 March 2010 the Asylum Service’s decision was upheld and the appeal dismissed. 20. The Reviewing Authority underlined the contradictions and inconsistencies in the second applicant’s claims. It pointed out that he had not given the same reasons for leaving Syria in his written application and in his interview. In the former he had stated that he had come to Cyprus to find work whereas in his interview he claimed that he had left Syria because he feared arrest following his participation in a demonstration. Further, the Reviewing Authority gave weight to the fact that the second applicant had stated that following the demonstration he had allegedly participated in, nothing had actually happened to him and that he had not been sought by the authorities. In his asylum application he had stated that he had not been arrested, detained, harassed, persecuted or wanted by the Syrian authorities. He had also been able to leave Syria legally. The second applicant’s claims were therefore unsubstantiated. No issue arose in respect of the first applicant as she had stated that she had left Syria in order to join the second applicant and marry him and had admitted that she did not face any problems in Syria. 21. The Reviewing Authority concluded by observing that the applicants had not established that they were at risk of persecution if they returned to Syria. Nor did they satisfy the conditions for temporary residence on humanitarian grounds. 22. On 15 May 2010 the second applicant brought a “recourse” (judicial review proceedings) before the Supreme Court (first-instance revisional jurisdiction) under Article 146 of the Constitution challenging the decision of the Reviewing Authority. A subsequent application to amend the recourse by adding the first applicant as a complainant was withdrawn as the time-limit of seventy-five days had in the meantime expired (see paragraph 89 below). 23. On 14 June 2010 the applicants filed the present applications with the Court. The second applicant, in his application form stated that on 13 March 2004 he had taken part in a demonstration in his village in Derit. The purpose of the demonstration was to go to Qamishli to show solidarity with the Kurdish demonstrators following the events of 12 March 2004. Following the intervention of the authorities this had not been possible. The second applicant stated that the police had attacked the demonstrators killing two persons. After going into hiding for a month in a neighbouring village, the second applicant was arrested in Qamishli. He was detained for fourteen days and subjected to torture. He was subsequently transferred to the central prison of Damascus where he was detained for two and a half months. After bribing the authorities he was released on the condition that he would present himself to the authorities in Damascus every fifteen days. He did not do so, however, out of fear to be detained and tortured again. 24. On 8 October 2013 the Supreme Court dismissed the second applicant’s recourse. It upheld the Reviewing Authority’s decision of 26 March 2010 after examining all the grounds of annulment put forward by the second applicant. The court noted, inter alia, that the main ground for which the second applicant’s asylum claim had not been accepted was the lack of plausibility of his principal allegations and the existence of significant contradictions and omissions which had undermined his credibility. The second applicant had not substantiated that he was at risk of persecution if returned to Syria because he had allegedly participated in a demonstration. Furthermore, the fact that the second applicant was of Kurdish origin was not sufficient in itself to justify the granting of refugee status. The Supreme Court also held that new grounds and allegations concerning his detention, arrest and ill-treatment following the events could not be taken into account. Its jurisdiction under Article 146 of the Constitution was limited to reviewing his claim as it had been made before the Asylum Service and the Reviewing Authority (see paragraph 89 below). Grounds for annulment that had not been put before the Reviewing Authority could not be examined for the first time by the court. 25. No appeal was lodged against the first instance judgment. 26. In the meantime, on 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia, near the Representation of the European Commission, the Ministry of Labour and Social Insurance and the Government Printing Office. They were protesting against the restrictive policies of the Cypriot Asylum Service in granting international protection. About 150 Kurds from Syria, including the applicants, remained in the area around the clock, having set up about eighty tents on the pavement. According to the Government, the encampment conditions were unsanitary and protesters were obstructing road and pedestrian traffic. The encampment had become a hazard to public health and created a public nuisance. The protesters performed their daily chores on the pavement, including cooking and washing in unsanitary conditions. The sewage pits had overflown, causing a nuisance and offensive odours. The public lavatories were dirty and the rubbish bins of the Government buildings were being used and, as a result, were continuously overflowing. Furthermore, the protesters were unlawfully obtaining electricity from the Printing Office. Members of the public who lived or worked in the area had complained to the authorities. The Government submitted that efforts had been made by the authorities to persuade the protesters to leave, but to no avail. As a result, the authorities had decided to take action to remove the protesters from the area. 27. On 28 May 2010 instructions were given by the Minister of the Interior to proceed with the deportation of Syrian-Kurdish failed asylum seekers in the normal way. 28. On 31 May 2010 the Minister requested the Chief of Police, among others, to take action in order to implement his instructions. Further, he endorsed suggestions made by the competent authorities that deportation and detention orders be issued against Syrian-Kurdish failed asylum seekers who had passports and did not have Ajanib or Maktoumeen status and that the police execute the orders starting with the ones issued against the leaders of the protesters. The police were also directed to take into account the policy guidelines and to use discreet methods of arrest. 29. According to the Government, letters were sent by the Civil Registry and Migration Department to a number of failed Syrian-Kurdish asylum-seekers informing them that they had to make arrangements to leave Cyprus in view of their asylum applications being turned down (see M.A. v. Cyprus, no. 41872/10, § 32, ECHR 2013 (extracts)). They submitted a copy of such a letter which was dated 1 June 2010 and addressed to the applicants. 30. From documents submitted by the Government it appears that from 31 May until 7 June 2010 the authorities kept the area under surveillance and kept a record of the protesters’ daily activities and of all comings and goings. In the relevant records it is noted that invariably, between 1.30 a.m. and 5.30 a.m., things were, in general, quiet, and everyone was sleeping apart from those keeping guard. During the above-mentioned period a large-scale operation was organised by the Police Emergency Response Unit, “ERU” (“ΜΜΑΔ”), and a number of other authorities, including the Police Aliens and Immigration Unit, for the removal of the protesters and their transfer to the ERU headquarters for the purpose of ascertaining their status on a case-by-case basis. 31. In the meantime, between 28 May 2010 and 2 June 2010 orders for the detention and deportation of forty-five failed asylum seekers were issued following background checks. Letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, containing a short paragraph with information as to the immigration status of each person. This information included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service, the date of dismissal of the appeal by the Reviewing Authority, where lodged, and the date some of those concerned had been included on the authorities’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring). The letters recommended the issuance of deportation and detention orders. The Government submitted copies of two such letters with information concerning thirteen people. 32. On 2 June 2010, letters were also prepared in English by the Civil Registry and Migration Department informing those concerned of the decision to detain and deport them. The Government submitted that, at the time, the authorities did not know whether those individuals were among the protesters. 33. The removal operation was carried out on 11 June 2010, between approximately 3 a.m. and 5 a.m. with the participation of about 250 officers from the Police Aliens and Immigration Unit, the ERU, the Nicosia District Police Division, the Traffic Division, the Fire Service and the Office for Combating Discrimination of the Cyprus Police Headquarters. The protesters, including the applicants, were led to buses, apparently without any reaction or resistance on their part. At 3.22 a.m. the mini buses carrying the male protesters left. The women, children and babies followed at 3.35 a.m. A total of 149 people were located at the place of protest and were transferred to the ERU headquarters: eighty-seven men, twenty-two women and forty children. Upon arrival, registration took place and the status of each person was examined using computers which had been specially installed the day before. The Government submitted that during this period the protesters had not been handcuffed or put in cells but had been assembled in rooms and given food and drink. It appears from the documents submitted by the Government that by 6.40 a.m. the identification of approximately half of the group had been completed and that the whole operation had ended by 4.30 p.m. 34. It was ascertained that seventy-six of the adults, along with their thirty children, were in the Republic unlawfully. Their asylum applications had either been dismissed or their files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals dismissed. Some final decisions dated back to 2006. A number of people had also been included on the authorities’ “stop list”. Deportation orders had already been issued for twenty-three of them (see paragraph 31 above). 35. The authorities deported twenty-two people on the same day at around 6.30 p.m. (nineteen adults and three children). Forty-four people (forty-two men and two women), including the applicants, were arrested. The persons against whom deportation and detention orders had been issued on 2 June 2010 were detained under these orders. The remaining persons, including the applicants, were charged with the criminal offence of unlawful stay in the Republic under section 19(2) of the Aliens and Immigration Law (see paragraph 86 below). They were all arrested and transferred to various detention centres in Cyprus. The applicants were placed in the immigration detention facilities in the Nicosia Central Prisons (Blocks 9 and 10 respectively). Further, on humanitarian grounds, thirteen women whose husbands were detained pending deportation and who had a total of twenty-seven children between them were not arrested themselves. 36. According to the Government the applicants and their co-detainees were informed orally that they had been arrested and detained on the basis that they had been staying in the Republic unlawfully and were thus “prohibited immigrants” (see paragraph 84 below). They were also informed of their rights pursuant to the Rights of Persons Arrested and Detained Law 2005 (Law 163(I)/2005) (see paragraph 113 below) and, in particular, of their right to contact by phone, in person and in private, a lawyer of their own choice. The applicants submitted that they had not been informed of the reasons for their arrest and detention on that date. 37. On the same day letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, recommending the issuance of deportation and detention orders. The letters contained a short paragraph in respect of each person with information as to his or her immigration status. This included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service and the date of dismissal of the appeal by the Reviewing Authority where lodged. Some letters also referred to the date the asylum application had been lodged and the date some of the individuals concerned had been included on the authorities’ “stop list”. The Government submitted copies of letters concerning thirty-seven people (most of these letters referred to groups of people). 38. Deportation and detention orders were also issued in Greek on the same day in respect of the remaining fifty-three people detained (see paragraph 34 above), including the applicants, pursuant to section 14 (6) of the Aliens and Immigration Law on the ground that they were “prohibited immigrants” within the meaning of section 6(1)(k) of that Law. These were couched in identical terms. In respect of two people the orders also mentioned sections 6(1)(i) and 6(1)(l) of the Law. 39. Subsequently, on the same date, letters were prepared in English by the Civil Registry and Migration Department informing all the detainees individually, including the applicants, of the decision to detain and deport them. The Government submitted thirty-seven copies of these letters, including those addressed to the applicants, the text of which was virtually identical, a standard template having been used. The text of the letter reads as follows: “You are hereby informed that you are an illegal immigrant by virtue of paragraph (k). section 1, Article 6 of the Aliens and Immigration law, Chapter 105, as amended until 2009, because you of illegal entry [sic] Consequently your temporary residence permit/migration permit has been revoked and I have proceeded with the issue of deportation orders and detention orders dated 11th June 2010 against you. You have the right to be represented before me, or before any other Authority of the Republic and express possible objections against your deportation and seek the services of an interpreter.” 40. The only differences was that some letters referred to illegal stay rather than illegal entry and that the letters issued earlier referred to 2 June 2010 as the date of issuance of the deportation and detention orders (see paragraph 32 above). 41. On the copy of the letters to the applicants provided by the Government, there is a handwritten signed note by a police officer stating that the letters were served on the applicants on 18 June 2010 but that they refused to receive and sign for them. The other letters had a similar note or stamp on them with the same date, stating that the person concerned had refused to sign for and/or receive the letter. In a letter dated 7 September 2010 the Government stated that the applicants had been served on 18 June 2010. In their subsequent observations the Government submitted, however, that this was the second attempt to serve the letters, the first attempt having been made on 11 June 2010, that is, the day of the arrest. 42. The applicants submitted that they had never refused to receive any kind of information in writing. They claimed that it had only been on 14 June 2010 that they had been informed orally that they would be deported to Syria on the same day but that the deportation and detention orders were not served on them on that date or subsequently. They submitted that they had eventually been informed by their lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court, that deportation and detention orders had been issued against them. 43. From the documents submitted by the Government, it appears that at least another fourteen of the detainees were to be deported on 14 June 2010 (this figure is stated in documents submitted by the Government with no further details). 44. On Saturday, 12 June 2010, the applicants, along with forty-two other persons of Kurdish origin, submitted a Rule 39 request in order to prevent their imminent deportation to Syria. 45. On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had had the opportunity to receive and examine all the documents pertaining to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation. 46. On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties. He decided to maintain the interim measure in respect of five cases, including the present ones. Rule 39 was lifted with regard to the thirty-nine remaining cases (for further details see M.A., cited above, § 58). 47. Rule 39 was subsequently lifted with regard to three cases, but remained in force in the present two applications. 48. On 24 January 2011 the applicants filed habeas corpus applications with the Supreme Court claiming that their continued detention from 11 June 2010 had violated Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Members states for returning illegally staying third-country nationals, “the EU Returns Directive”. The applicants, relying on the Court’s judgment in Chahal v. the United Kingdom, 15 November 1996, (Reports of Judgments and Decisions 1996V) and the Commission’s report in Samie Ali v. Switzerland (no. 24881/94, Commission’s report of 26 February 1997) also claimed that their detention had breached Article 11 (2) of the Constitution and Article 5 § 1 of the Convention (see M.A., § 50, cited above). 49. The Supreme Court set the applications for directions for 31 January 2011. On that date the Government asked for a few days so they could file an objection to the applications. They were given until 4 February 2011 and the habeas corpus applications were set for hearing on 9 February 2011. The parties were also requested to prepare a short note with the issues they would address and to produce it on the day of the hearing. 50. The Government filed their objection on 4 February 2011. 51. On 10 February 2011 the parties appeared before the court and submitted their written addresses. The hearing of the applications was held. Judgment was reserved on the same day. 52. On 23 February 2011 the Supreme Court dismissed the applications. With regard to the preliminary issues raised, the Supreme Court first of all held that it had the competence to examine the applications as it was called upon to examine the lawfulness of the applicants’ protracted detention and within the context of a habeas corpus application, examine the conformity of their detention with Article 15 (3) of the EU Returns Directive and Article 11 (2) not the lawfulness of the deportation and detention orders. The applicants were not estopped from bringing a habeas corpus application just because they had not challenged the deportation and detention orders issued against them. Even if the lawfulness of the detention was assumed, detention for the purpose of deportation could not be indefinite and the detainee left without the right to seek his release. The Supreme Court also rejected the argument that the applicants were estopped from bringing the application because their continued detention had been brought about by their own action, that is, by their application to the Strasbourg Court for an interim measure suspending their deportation. 53. The Supreme Court then examined the substance of the applications. It noted that the EU Returns Directive had direct effect in the domestic law, as the period for transposition had expired and the Directive had not been transposed. It could therefore be relied on in the proceedings. However, it went on to hold that the six-month period provided for in the Directive had not yet started to run. The applicants had been arrested on 11 June 2010 with a view to their deportation but had not been deported by the Government in view of the application by the Court on 14 June 2010 of Rule 39 and the issuing of an interim measure suspending their deportation. Consequently, the authorities had not been able to deport them even though, as they stated before the court, they had been ready to do so from 18 June 2010. As the applicants themselves had taken steps to suspend their deportation, the ensuing time could not be held against the Government and could not be taken into account for the purposes of Article 15 (5) and (6) of the Directive. The six-month period would start to run from the moment that the interim measure had been lifted. From that moment onwards the Government had been under an obligation in accordance with Article 15 (1) of the Directive to proceed with the applicants’ deportation with due diligence. The situation would have been different if the deportation had not been effected owing to delays attributable to the authorities. 54. In so far as the applicants’ complaints under Article 11 (2) of the Constitution and Article 5 § 1 of the Convention were concerned, the Supreme Court distinguished the applicants’ situation from those in the cases they relied on and in which responsibility for the protracted detention lay with the authorities. Further, it held that it had not been shown that the continued detention of the applicants had been arbitrary, abusive and contrary to the Court’s case-law (see paragraph 48 above). 55. The applicants lodged two separate appeals with the Supreme Court (appellate jurisdiction) on 17 March 2011. Another two appeals were lodged at the same time by M.A. (see M.A., §§ 54, cited above) and another Syrian of Kurdish origin (see K.F. v. Cyprus, no. 41858/10, § 62, 21 July 2015). 56. The applicants sent a letter dated 13 April 2011 to the Registrar of the Supreme Court requesting that the appeals be fixed for pre-trial within a “short period of time” and then for hearing. 57. The applicants were released on 20 May 2011 following revocation of the deportation and detention orders of 11 June 2010 by the Permanent Secretary of the Ministry of the Interior. They were informed on 17 May 2011 by a letter dated 10 May 2011 that they would be issued with a special residence/employment permit under the Aliens and Immigration Law and the relevant Regulations for a period of six months from the date of their release with a possibility of further renewal. However, prior to the issuance of this permit they were obliged to sign a contract of employment with an employer indicated and approved by the Department of Labour. The applicants were also asked to report to the police once a month. 58. On 15 July 2011 the Supreme Court informed the applicants that one of the other appeals that had been filed at the same time as theirs was set down for hearing for 12 September 2011. 59. On 7 September 2011 the applicants’ lawyer filed an application for joining the four appeals (see paragraph 55 above). 60. On 12 September 2011 the Supreme Court issued an order joining the appeals and also instructed the parties to file their written addresses. The applicants submitted that on this date the court was informed that they had been released. 61. On 8 November 2011 the applicants filed an application requesting an extension of twenty days for filing their written addresses. These were filed on 28 November 2011. 62. On 17 March 2012 the appeals were set for directions. 63. On 18 July 2012 the Government filed an application requesting the parties to appear before the Supreme Court and requested a forty-day extension for filing their written address. This was granted and the appeals were set down for hearing on 11 September 2012. 64. In the meantime, the Government filed their written address on 28 August 2012. 65. On 11 September 2012 the hearing was held and judgment was reserved. 66. The appeals were dismissed on 15 October 2012. The Supreme Court held that as the applicants had, in the meantime, been released, the application was without object (see M.A., cited above, § 55). 67. The applicants submitted that following their release on 20 May 2011 the authorities did not grant them residence permits. The applicants were not able to fulfil the terms and conditions imposed by the Ministry of Interior in order to have residence permits. Their issuing was subject to finding an employer approved by the Department of Labour and to present to the immigration authorities an approved contract of employment. The applicants could not find and/or were not referred by the Department of Labour to an approved employer despite their numerous attempts to that effect. Their situation was explained to the competent authorities in a letter dated 28 July 2011 to which they never received a reply. As a result they were not able to regularise their stay in Cyprus and had no access to any rights apart from a tolerated residence status. 68. On 24 November 2012, at 9.45 a.m., the applicants, along with another Syrian couple who had three children, were stopped at Paphos airport while they attempted to take a flight to Bergamo-Milano in Italy by using false Bulgarian passports. During passport control, the police officer in charge suspected that their passports were false because the colour of the page containing the biometric data differed to that used in genuine passports. The applicants were then requested to give a sample of their signatures. These did not correspond to those in the passports they had presented. After having being questioned by the officer they admitted that the passports were not their own and revealed their true personal details. An immigration officer carried out a search of their immigration status and ascertained that they were failed asylum seekers as their appeal to the Reviewing Authority been dismissed and they did not have valid residence permits. 69. According to the statement of the police officer taken on the same date, the applicants were arrested for committing the flagrant offences of personation and unlawful stay in the Republic (see paragraphs 86 and 114 below). The second applicant was arrested at 1 p.m. and the first applicant at 1.05 pm. In his statement the police officer stated that he had drawn their attention to the law and that the second applicant replied “I made a mistake”. The officer also noted that their legal rights had been explained to them in the Arabic language by an interpreter. The other couple was also arrested and the social welfare office was contacted concerning the children. Around 2 p.m. they were all taken to the Paphos Criminal Investigation Department (CID). 70. The second applicant along with the other man, was then arrested by virtue of an arrest warrant issued by the District Court of Paphos at 2.20 pm the same day pursuant to section 18 of Criminal Procedure Law (Cap. 155; see paragraph 116 below) on the ground that there had been reasonable suspicion based on evidence that he had been involved in a conspiracy to commit a felony, forgery, circulation of a forged document, personation and unlawful stay in the Republic between 15 September 2009 and 14 November 2012. There is a handwritten signed note on the warrant by the arresting police officer stating that he arrested the second applicant at 2.40 p.m. at Paphos CID and that with the assistance of an interpreter he had informed him of the reasons for his arrest, had drawn his attention to the law and that the second applicant had replied “I did it for a better life”. 71. The second applicant also signed a document containing his rights to communication as set out in sections 3 and 4 of Law 163(I)/of 2005 (see paragraphs 36 above and 113 below). The copy of the document signed by him was in Arabic. 72. The second applicant was then questioned by a police officer with the assistance of an interpreter and gave a written statement. The statement was then translated into Arabic. The first part of the statement contains the information given to him by the police officer which reads as follows: “I inform you that I am investigating a case of conspiracy to commit a felony, forgery, uttering false documents and personation and unlawful stay on the territory of the Republic, offences that were committed between 26 March 2010 and 24 November 2012 in Paphos, for which I have evidence which gives me reasonable suspicion that you are implicated. I wish to question you and to take your statement. You are not obliged to say anything unless you wish to do so but anything you say may be written down and used as evidence”. 73. The second applicant signed next to this paragraph. 74. In his statement the second applicant stated that he had decided to leave Cyprus, as following his release and the expiry of the six-months, he was not given another residence and work permit (see paragraph 57 above). He also admitted that he had bought the passports from a Kurdish national for the amount of 1100 euros (EUR) and explained how these were secured. The applicants intended to leave Cyprus and go to Germany through Italy. He also apologised for what happened “today” and that he had done it because he could no longer live in Cyprus. The statement was read to the applicant by the interpreter; he confirmed it and signed it. A statement was also given by the interpreter. 75. According to the relevant police report of Paphos CID, the first applicant and the other woman stated that they did not know anything about the passports and that their husbands had organised everything. 76. At around 4.10 p.m. both women were released from custody as they were both pregnant and the one also had three children. 77. The following day, 25 November 2012, the second applicant was taken to the Paphos District Court and was remanded in custody for four days for the purposes of further investigation of the alleged commission of a number of offences by the applicants under the Criminal Code and the Aliens and Immigration Law; in particular, the offences of conspiracy to commit a felony, forgery, uttering false documents and personation (sections 371, 331, 333, 334, 337, 339 and 360 of the Criminal Code, Cap. 154) and unlawful stay in the Republic (section 19 (l) (l) of the Aliens and Immigration Law)(see paragraphs 86, 114 and 115 below). 78. On 28 November 2012, following the conclusion of the police investigation, the case file was transmitted to the office of the Attorney-General for the purposes of deciding whether the applicants would be subject to criminal prosecution. The Attorney-General at the time, decided not to prosecute the applicants because of the particularity of their cases. He gave instructions to the police to proceed with the deportation of the applicants when the situation in Syria would allow it. 79. On 29 November 2012, upon expiry of the second applicant’s remand, detention and deportation orders were issued pursuant to section 14(6) of the Aliens and Immigration Law on the ground that the second applicant was a prohibited immigrant within the meaning of section 6 (1) (k) and (l) of that law (see M.A., § 62, cited above). On the same day the second applicant was served with a letter informing him of the decision to detain and deport him on the ground that he was an illegal immigrant as he had stayed unlawfully in the Republic. It also informed him that he had the right to file a recourse against these orders before the Supreme Court. 80. The Government submitted that on the same day the execution of the deportation order was suspended as “it transpired” that the Court’s interim measure under Rule 39 was still in force. 81. The second applicant was detained at Paphos Police Station Detention Facility until 21 December 2013 when he was released following a decision by the Permanent Secretary of the Ministry of the Interior to revoke the deportation and detention orders. The conditions attached to his release were set out in a letter dated 20 December 2013 given him on the date of his release. In particular, the second applicant was requested to hand over his passport to the Aliens and Immigration police. He would be given a certified copy of the passport which would allow the issuance of a residence permit or any other permit. A special residence/employment permit would then be issued for a period of six months. Prior to the issuance of this permit, however, the second applicant would have to sign a contract of employment with an employer indicated and approved by the Department of Labour. The second applicant was also obliged to report to the nearest police station once a month and to inform the authorities of a change of address. 82. The second applicant submitted that although he found employment he was informed by the Department of Labour that the employer in question did not fall within the categories entitled to employ him. The Department of Labour did not refer him to an eligible employer. The first applicant submitted that she was not given any terms or conditions of residence. They both therefore remained in an irregular situation. | 1 |
test | 001-161542 | ENG | RUS | CHAMBER | 2,016 | CASE OF ZHEREBIN v. RUSSIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 4. The applicant was born in 1983 and lives in Tula. 5. On 9 March 2009 the applicant was arrested on suspicion of a flagrant breach of public peace and order, committed in concert by an organised group. The events in question took place in December 2008. 6. On 10 March 2009 the Taganskiy District Court of Moscow remanded the applicant in custody during the investigation. In particular, the court noted as follows: “When deciding whether a preventive measure should be imposed, the court takes into consideration whether [the applicant] has been charged with a serious offence which entails a custodial sentence of up to seven years’ imprisonment. [The offence in question] was committed against public peace and public order. Further, the court takes into consideration the fact that, at the time of the arrest, [the applicant] did not reside in Moscow, did not reside at his registered address and, according to him, was staying at his friend’s place in the Moscow Region; and that he had applied for two years’ leave of absence from his studies at university. During that period he did not have a permanent place of residence and did not reside at his registered address. [The applicant] is not employed. The source of his income or means of subsistence for his family are not known. Earlier [the applicant] was found liable for administrative offences against public order and public safety. The court also takes into consideration the motive for and the specific circumstances of the offence with which [the applicant] has been charged. The perpetrators used improvised weapons and acted in an organised group during the late hours of the day. Regard being had to the circumstances described above, the court concludes that, if at large, [the applicant] may abscond or otherwise interfere with the administration of justice by, inter alia, putting pressure on [witnesses].” 7. On an unspecified date the applicant lodged an appeal against the decision of 10 March 2009. He argued that the District Court had failed to justify its decision to remand him in custody and had not considered the possibility of using a less restrictive preventive measure in his case. He further noted that there was no evidence that he had ever tried to put pressure on witnesses, to interfere with the administration of justice or to abscond. Lastly, he pointed out that he was residing at the address known to the authorities together with his wife, who was pregnant. 8. On 30 March 2009 the Moscow City Court found the decision of 10 March 2009 justified and upheld it on appeal. 9. On 27 April 2009 the District Court extended the applicant’s pre-trial detention until 15 June 2009. The court reasoned as follows: “As can be seen from the materials submitted to the court, [the applicant] is charged with a serious offence which carries a custodial sentence of up to seven years. The crime was committed in concert with other persons. Some of them have not been identified by the investigating authorities to date. The others have been arrested. [The applicant] was not residing at his registered address. He does not have a registered address in the Moscow Region. He is unemployed. Under Article 97 of the Code of Criminal Procedure, a preventive measure can be imposed if there is evidence that a defendant might abscond or interfere with the administration of justice in his case. Neither [the applicant] nor his lawyer presented evidence to show that the existence of such a risk could not be justified. Furthermore, it can be seen from the documents submitted to the court that there is a risk that [the applicant] might engage in unlawful acts as defined in the above-mentioned provision of the law, regard being had to the nature and seriousness of the offence with which he is charged, to and to his character ... Accordingly, the court concludes that the circumstances justifying the [applicant’s] remand in custody have not changed. There is no reason to change or lift the preventive measure imposed earlier. The statements of guarantee submitted by the [applicant’s] lawyer cannot be taken into consideration by the court because they were not submitted to the investigator or presented by the signatories in person. ... Some of the statements are not duly authorised and the court has doubts as to their authenticity.” 10. On 18 May 2009 the City Court upheld the decision of 27 April 2009 on appeal. 11. On 29 May 2009 the Zamoskvoretskiy District Court of Moscow scheduled the trial for 10 June 2009. The applicant argued against the extension of his pre-trial detention. He submitted that he was a student, that he was married and that his wife was pregnant. He further pointed out that the investigation in the case had already been completed and that he could not interfere with the administration of justice or put pressure on witnesses. He had no intention of doing so or of absconding. The court ruled that the applicant should remain in custody pending trial. In particular, the court stated as follows: “Having examined the prosecutor’s request to detain [the applicant and two other defendants] pending trial, the court grants it. It discerns no grounds on which to change the preventive measure imposed on the defendants, regard being had to the seriousness of the charges, the factual circumstances and the defendants’ character. In particular, G. and [the applicant] do not have a registered address in Moscow or the Moscow Region. They were not living at their registered address. They are unemployed. The circumstances underlying their remand in custody have not ceased to exist or changed. The fact that the investigation in the criminal case has been completed has no effect to the contrary. Regard being had to the foregoing, the court discerns no grounds on which to change the preventive measure imposed earlier on the defendants and apply a less restrictive measure, including the [applicant’s] release upon a statement of guarantee signed by a surety.” 12. On 24 June 2009 the applicant asked the District Court for release. He submitted that on 16 June 2009 his wife had given birth to their child. He also relied on the statements of guarantee submitted by his sureties. The court dismissed the applicant’s request noting as follows: “... the court considers that the request cannot be granted. The court discerns no circumstances that would allow it to change the preventive measure imposed on [the applicant], regard being had to the seriousness of the charges, the factual circumstances and his character. In particular, [the applicant] does not have a registered address in Moscow or the Moscow Region. He is unemployed. Nor was [he] residing at his registered address. The reasons justifying the [applicant’s] remand in custody have not ceased to exist or changed. ... the birth of his child has no effect to the contrary and cannot justify the decision to replace [pre-trial detention] with a less restrictive measure, including the [applicant’s] release upon a statement of guarantee signed by a surety.” 13. On 22 July 2009 the City Court upheld the decision of 29 May 2009 on appeal. 14. On 28 October 2009 the District Court found the applicant guilty as charged and sentenced him to four years’ imprisonment. 15. On 22 December 2009 the City Court upheld, in substance, the applicant’s conviction on appeal. | 1 |
test | 001-182848 | ENG | TUR | COMMITTEE | 2,018 | CASE OF YAMAN AND OTHERS v. TURKEY | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-e - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-e - Free assistance of interpreter);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) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić | 6. The applicants, Mr Ömer Yaman (first applicant), Mr Mustafa Ürek (second applicant), and Mr Kerem Bilen (third applicant) were born in 1956, 1967 and 1977 respectively. 7. On 20 June 1999 the applicants were arrested in the course of a military operation in Şırnak. They were subsequently interrogated by the gendarmes in the absence of a lawyer. In their statements, the applicants accepted the charges against them and gave a detailed account of their involvement in the PKK (the Workers’ Party of Kurdistan, an illegal organisation). 8. On 23 June 1999 the applicants were brought before the Diyarbakır Public Prosecutor and subsequently before the investigating judge. The first and second applicants were provided with an interpreter during their interrogation. Before the public prosecutor and the judge, the applicants denied the charges against them. They further stated that they had signed their gendarmerie statements without reading them. Following the questioning, the investigating judge remanded the applicants in custody. 9. On 2 July 1999 the Public Prosecutor at the Diyarbakır State Security Court filed an indictment with that court and accused the applicants of carrying out activities for the purpose of bringing about the secession of part of the national territory, under Article 125 of the Criminal Code. 10. The proceedings resumed before the Diyarbakır State Security Court and the first and second applicants were authorised to have the assistance of an interpreter. In their defence submissions before the trial court, the applicants retracted the statements they had allegedly made during the preliminary investigation stage. They submitted that the gendarmes had made them sign their statements without reading them. 11. On 7 May 2002 the Diyarbakır State Security Court found the applicants guilty as charged and convicted them under Article 125 of the former Criminal Code with carrying out activities with the aim of bringing about the secession of part of the national territory. It further sentenced the applicants to life imprisonment. In convicting them, the court had regard to the applicants’ statements taken by the gendarmes. 12. On 25 March 2003 the Court of Cassation quashed the judgment of the first-instance court on the ground that during the trial certain witness statements, which had been taken on commission before other courts, had not been read out to the applicants for comment during the trial. The case was accordingly remitted to the Diyarbakır State Security Court. 13. In the meantime, State Security Courts were abolished by Law no. 5190 of 16 June 2004, and therefore, the case against the applicants was transferred to the Diyarbakır Assize Court. 14. On 7 March 2005 the Diyarbakır Assize Court complied with the decision of the Court of Cassation and witness statements that had been taken on commission were read out to the applicants for their comments. At the end of the trial, the Diyarbakır Assize Court found the applicants guilty as charged and sentenced them to life imprisonment. 15. On 17 June 2005 the Principal Public Prosecutor at the Court of Cassation decided that the case file should be remitted to the Diyarbakır Assize Court for examination of whether the new Criminal Code which had entered into force on 1 June 2005 (Law no. 5297) provided more favourable provisions for the applicants. The case was thus once again examined by the Diyarbakır Assize Court in view of the recent legislative changes. 16. On 25 October 2005 the Diyarbakır Assize Court once again convicted the applicants under Article 125 of the former Criminal Court, finding that this provision was more favourable to them than the corresponding provision of the new criminal code. 17. On 30 May 2006 the Court of Cassation quashed the judgment on procedural grounds, holding in particular that certain documents which had been relied on by the first-instance court in its judgment were not of an official nature. 18. On 24 April 2007 the Diyarbakır Assize Court, after obtaining official copies of all the documents in the case file, convicted the applicants under Article 125 of the former Criminal Code and sentenced them to life imprisonment. 19. On 11 December 2007 the Court of Cassation upheld the judgment of the first-instance court. | 1 |
test | 001-166940 | ENG | LTU | CHAMBER | 2,016 | CASE OF YUSIV v. LITHUANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 6. The applicant was born in 1995 and lives in Kaunas. He is a Ukrainian national and has lived in Lithuania since 2006. 7. On the evening of 22 October 2011 the Panemunė Police Department of the Kaunas District received a call that a man had been robbed in the street by several young men in the neighbourhood close to the railway station. Several police cars were sent to the area in search of the suspected robbers. 8. That same evening, shortly before midnight, the applicant was walking to see his girlfriend who lived in the same neighbourhood. At that time he was sixteen years old. He was approached by a police car in which there were three officers A.R., Ž.S. and R.A. They asked the applicant to stop and take his hands out of his pockets. As the officers were getting out of the car, the applicant started running away from them. The officers informed other police patrols in the neighbourhood that they were chasing a young man who fitted the description of one of the suspected robbers. 9. The applicant was apprehended by the police near a bus stop close to the railway station. Three police cars were present during his arrest: (a) the first police patrol, which comprised officers O.K., R.V. and V.F.; (b) the second police patrol, which comprised officers A.R., Ž.S. and R.A.; (c) officers of the operational division – driver T.S. and investigator L.L. 10. The applicant was apprehended by T.S., who subsequently handed him over to A.R., Ž.S. and R.A. He was handcuffed, put into a police car, and taken to the Panemunė police station, where a record of an administrative violation was drawn up, charging him with disobeying lawful orders of the police (see paragraph 16 below). 11. The officers telephoned the applicant’s mother R., and agreed that she would pick up the applicant from the railway station. Officers A.R., Ž.S. and R.A. drove the applicant to the station and handed him over to his mother around 1 a.m. that same night. 12. Subsequently the applicant and his mother, on the one hand, and the police officers, on the other, presented different accounts surrounding the applicant’s arrest. 13. Immediately after the arrest, A.R., Ž.S. and R.A. all submitted identically worded reports to their superior: “On 22 October ... around 11.45 p.m. ... we noticed a suspicious young man who corresponded to the description of a youth who had recently fled from the police. After we addressed [him], he stopped; when we were getting out of the car to talk to him, he suddenly started to run. He did not respond to our order to stop ... Soon he was noticed ... close to the railway station ... and he was apprehended. Then he began kicking out, fell to the ground, and resisted being apprehended, so we warned him that physical coercion would be used. The young man ignored this and continued actively resisting and kicking out, so when detaining him we were forced to use physical coercion and restraining measures, namely a truncheon and handcuffs. The young man was arrested and taken to the Panemunė police station ...” 14. On 24 and 26 October 2011 the applicant’s mother R. complained to the Kaunas District Police Department and the Kaunas City Prosecutor that her minor son had been beaten by police officers while being apprehended. She claimed that one of the officers had hit the applicant with a truncheon in the police car numerous times, and that afterwards his body had been covered in bruises and he had had difficulties walking. 15. On 24 October 2011 the applicant was examined by a court medical expert. The report on the results of that examination, issued in November 2011, found several contusions on the applicant’s body – both shoulders and upper arms, his chest, both thighs and calves and the left knee. It determined that the contusions had been caused by a hard blunt object of cylindrical shape, from eighteen or more blows (aštuoniolika ar daugiau trauminių poveikių). The report also found a tear injury (plėštinė žaizda) on the applicant’s left thumb caused by a hard blunt object, and bruised skin on his left wrist which could have resulted from handcuffing. It concluded that the injuries corresponded to negligible health impairment (nežymus sveikatos sutrikdymas) and that they could have occurred at the time and in the circumstances described by the applicant (see paragraph 14 above and paragraph 25 below). 16. On 23 October 2011 the Panemunė Police Department drew up a record of an administrative violation against the applicant. He was accused of insulting police officers by using swear words and of disobeying their lawful orders, contrary to Article 187 § 2 of the Code of Administrative Violations. 17. On 27 April 2012 the Kaunas District Court held an oral hearing. Police officers A.R., Ž.S. and R.A. all testified that the applicant had run away from them and had not complied with their order to stop. They also stated that while being apprehended near the railway station the applicant had violently resisted, had been kicking out and shouting, and had thrown himself on the ground, as a result of which the police had had to use a truncheon and handcuffs against him. 18. In the hearing the applicant admitted having run away from the officers because he had been afraid that they would beat him. However, he denied that he had resisted being apprehended near the railway station. The applicant’s lawyer also pointed out that a medical examination had detected at least eighteen blows from a hard blunt object on the applicant’s body (see paragraph 15 above) and argued that the police officers were lying in order to cover up the fact that they had beaten him. 19. On 4 May 2012 the Kaunas District Court found the applicant guilty and fined him 150 Lithuanian litai (LTL, approximately 43 euros (EUR)). The court found no reason to doubt the credibility and impartiality of the police officers, and considered that their consistent testimonies proved that the applicant had violently resisted the police. 20. On 11 July 2012 the Kaunas Regional Court upheld the judgment of the lower court. 21. On 24 October 2011 the Head of the Panemunė Police Department instructed the officers of that department to conduct a preliminary inquiry into the applicant’s allegations that he had been ill-treated by the police while being apprehended. 22. The inquiry was conducted by an investigator of the Division of Crimes against the Civil Service and Public Interest of the Criminal Investigation Unit of the Kaunas District Police Department. As submitted by the Government, that division had been established for the specific purpose of investigating crimes allegedly committed by police officers. 23. On 5 November 2011 A.R. was questioned as a witness. The written record of the interview repeated almost identically the wording of his initial report (see paragraph 13 above), and added: “We found out that [the applicant] was a minor only at the police station ... Had we known that earlier, we would not have used physical coercion and restraining measures against him ... At the time of the arrest, there was blood on [the applicant’s] hand. I don’t know how he hurt it. He didn’t complain about anything, so we didn’t take him to a doctor ... We delivered [the applicant] to his mother ... She began scolding her son and even thanked us for bringing him to her. She complained to us that she had problems with her son because he wasn’t obeying her and was skipping school.” On the same day the officer Ž.S. was also questioned as a witness and the written record of his interview was almost identical to that of A.R. 24. On 8 November 2011 the investigator examined the jacket the applicant had been wearing during his arrest and found stains on the lower back of the jacket which were “possibly similar to old bloodstains” (galimai panašios į seno kraujo žymes). 25. On 15 November 2011 the applicant was questioned as a witness and stated: “On 22 October 2011, around midnight I was walking ... I saw a police car ... it stopped, then one of the officers told me, “take your hands out of your pockets”. I took my hands out of my pockets, then the officer got out of the car and walked towards me, then I started running away and the police car started chasing me ... I ended up near a bus stop close to the railway station and there I was arrested by the police. Two uniformed police officers got out of a car, one of them (the driver) asked me why I was out of breath. I said that I was trying to catch the trolleybus. [That officer] said through the portable radio, “we’ve got one”. Then two other officers in uniform arrived on foot; one of them had a shaved head. Soon another police car arrived in which there were two uniformed officers. I knew one of the officers, A.R., because he was my classmate’s father. The officers who had come on foot approached me and the one with the shaved head told me that I would “pay for running away from them” (dabar aš gausiu, kad bėgau nuo jų), and with A.R. they swore at me ... Then A.R. handcuffed me behind my back and put me into a police car, in the back, and told me to sit there. Soon the officer with the shaved head got into the car and sat down in front of me. He took out a truncheon and began to hit me on various parts of the body. He hit me about fifteen times on the legs, about seventeen times on the arms, once on the back, once kicked me in the stomach, and once punched me in the face. I was made to lie down on the floor of the car and the officer with the shaved head told me to pray. I was praying and they were laughing at me. I also remember that on the way to the police station one of the officers told me that I would take the blame for somebody else’s robbery. I said nothing. There were three officers in the car, one of them was A.R., the other was the one with the shaved head who was sitting next to me, and the third was about 172 cm tall; this one had a large build and short dark hair ... In the police station A.R. took me to another room where he told me that if I didn’t defend his daughter, next time it would be worse. I told him that I would defend his daughter so that nobody beat her. I gave them my mother’s telephone number, and the officers called her and took me to her ... The officer with the shaved head handed me over to my mother and said “I don’t know how you will react but the officers have given him a little lesson to not run away from them the next time.” 26. On 22 November 2011 the investigator examined twenty-two photographs of the applicant which had been taken by his mother on 23, 25 and 29 October 2011. The investigator noted that injuries were visible on the applicant’s forehead, arms and legs, upper chest and the left side of his back. Several of the photographs showed a shoe with stains similar to bloodstains. 27. On 23 November 2011 A.R. was questioned again. The written record of the interview was almost identical to his previous statements (see paragraphs 13 and 23 above), and added: “... I arrived at the place where [the applicant] had been apprehended ... He was actively resisting: he was kicking out and had fallen on the ground. After being asked to calm down and get into a police car, he continued disobeying those lawful orders and resisted being apprehended, he started biting, so he was warned that physical coercion would be used against him. The young man ignored this and continued actively resisting and kicking, so we were forced to use physical coercion in order to arrest him, namely combat wrestling methods (kovinių imtynių veiksmai) and restraining measures, namely a truncheon and handcuffing him behind the back. While Ž.S. and R.A. were arresting [the applicant], I took out handcuffs and got ready to put them on him. As I remember, the truncheon was used by Ž.S. in order to arrest [the applicant] ... [The applicant] was acting aggressively and unpredictably. He was put in the back of the police car ... Ž.S. was driving the car, I was sitting next to the driver, and R.A. was in the back with [the applicant]. We asked him why he had fled from the police. He said that he had been afraid. We asked why he had been afraid if he hadn’t done anything, but he didn’t respond. In the car [the applicant] was calm; no physical coercion or restraining measures were used against him there. We noticed that his finger was injured (bleeding) but he refused to be examined by doctors. He said that he had hurt his finger on the fence or in the bushes while running away from the police. His clothes were dirty and the jacket was torn. [The applicant] had dirtied his clothes and torn his jacket when running away from the police ... In the police station, when [the applicant’s] identity was established I realised that he was my daughter’s classmate ... Then I said to him, “God forbid something happens to my daughter”. I also said, “I will defend my daughter”. I can’t remember my exact words, but I let it be known that he must not hurt my daughter. As far as I am aware, this young man is prone to doing such things. In the police station neither I nor other officers hit [the applicant] ... I did not use any swear words and did not humiliate him. I didn’t see the other officers acting inappropriately in respect of [the applicant] either.” 28. The following day R.A. was questioned as a witness and the written record of his interview was almost identical to that of A.R. (see paragraph 27 above). However, he stated that A.R. had not discussed any personal matters with the applicant and that it did not seem as though A.R. and the applicant knew one another. 29. On 24 November 2011 officer O.K. was questioned as a witness. He confirmed that on the night of 22 October 2011 he had been on duty together with officers R.V. and V.F. He further stated: “... After we arrived near the railway station, I saw an arrested young man who was actively resisting arrest, purposely falling on the ground and kicking out at officers, so the officers warned him that if he didn’t calm down physical coercion and restraining measures would be used against him. The young man continued behaving in an aggressive manner and actively resisting arrest, so officers used physical coercion, after which the young man was handcuffed and put into a police car ...” 30. On 28 November 2011 the investigator submitted a report to the Head of the Criminal Investigation Unit of the Kaunas District Police Department, suggesting that no pre-trial investigation should be opened. The investigator concluded that the use of physical force by the police officers had been a necessary and proportionate response to the applicant’s violent resistance and aggressive behaviour. On the same day the Head of the Criminal Investigation Unit approved the investigator’s conclusion and decided not to open a pre-trial investigation. 31. The applicant’s mother appealed against that decision, asking for a pre-trial investigation to be opened and for it to be entrusted to an authority other than the police. On 19 December 2011 the Kaunas City Prosecutor partly upheld the appeal. The prosecutor opened a pre-trial investigation, noting that the medical examination of the applicant had shown numerous injuries, so it was necessary to assess whether the use of force by the police officers had been within the limits provided in the law (see “Relevant domestic law” below). However, the prosecutor refused to entrust the pretrial investigation to another authority, finding no reason to doubt the impartiality of the police investigator. 32. On 2 February 2012 officer T.S. was questioned as a witness. He confirmed that on the night of 22 October 2011 he had been on duty with officer L.L., and that following information that a young man had fled from the officers towards the railway station, they had driven there in the police car. T.S. further stated: “I drove the police car towards the said young man and asked him to come closer, which he did. He was breathing hard, and, I saw that one of his hands was bleeding ... Soon afterwards three officers arrived on foot and one or two cars arrived ... In order to prevent the young man from fleeing, I held him by one sleeve. When he saw the approaching officers, he began to squirm and tried to get away ... After he was handed over to the officers, I saw that he was actively resisting arrest with his legs and arms, he was squirming and he fell on the ground with full force, making it more difficult to arrest him. The officers, using force, took him to the police car ... I didn’t see the officers hit the young man or use any restraining measures such as handcuffs or a truncheon. As I remember, he was taken to the car by possibly two officers, I don’t remember exactly because around six officers were present at the scene. Soon afterwards L.L. and I left and I didn’t see anything else.” L.L. was questioned on 25 September 2012, and gave essentially the same statement as T.S. 33. On 10 July 2012 the applicant’s mother submitted a request to the Kaunas City Prosecutor for the investigation to be transferred to the prosecutor’s office on the grounds that the Kaunas police officers could not be considered impartial. She also asked for several investigative actions, such as interviews with her and with the applicant, and for the officers who had allegedly ill-treated the applicant to be identified. The following day the Kaunas City Prosecutor dismissed the request for the investigation to be transferred to the prosecutor’s office, finding no grounds to doubt the impartiality of the police investigator. However, the prosecutor instructed the investigator to carry out the actions requested by the applicant’s mother. It appears that the applicant’s mother did not appeal against that decision. 34. On 30 July 2012 officer R.V. was questioned as a witness. He confirmed that on the night of 22 October 2011 he had been on duty together with officers O.K. and V.F. He stated that when they had arrived at the railway station the applicant had already been put into the police car. R.V. stated that he did not see how the applicant was put into the car, nor did he see the officers using any coercive or restraining measures against him. On 31 July 2012 officer V.F. was questioned as a witness; the written record of his interview was almost identical to that of R.V. 35. On 3 August 2012 the applicant’s mother R. was questioned as a witness. She stated that around 1 a.m. on 23 October 2011 police officers had delivered the applicant to her near the railway station. She stated: “When [the applicant] got out of the police car, he was limping on one leg ... The officers explained to me that they had caught him ... and that he fitted the description of a robber. When my son approached me, I began scolding him, but the officer Ž.S. told me, “don’t scold him, we already gave him a good lesson about running away from the police” ... A.R. asked me, “is there a father or are you raising him alone?”, and then said, “that’s why they grow up like this”. My son and I then left. Around 3 a.m. that night, when we were eating in the trolleybus, my son undressed and I saw that his body was covered in bruises ... My son told me that one of the officers (the one with the shaven head) had beaten him up. As I know now, that was Ž.S.”. 36. That same day the applicant was granted victim status and further questioned. He stated that he had initially run away from the police officers because it was dark and he had been afraid that they would beat him up. However, when he reached the railway station he was no longer afraid because the area was well lit and there were other people nearby. The applicant added: “One of the officers who had come on foot – the one with the shaved head, as I know now it was Ž.S. – swore at me in Russian, from which I understood that I would be beaten up for running away. Officer A.R., who is my classmate’s father, handcuffed me behind my back, put me in the back of a police car and closed the door. Ž.S. came from the other side of the car, opened the door and sat down next to me; he took out a truncheon and started hitting me on various parts of my body, except for the head. He hit me around fifty times. No other officers were in the car at that time. Then Ž.S. got out of the car, talked to the officers and got back in the car, in the driver’s seat. A.R. sat next to the driver and the third officer sat next to me ... At the police station ... A.R. approached me and said, “now I will show you”. I asked, “why, I don’t bother your daughter, I don’t even talk to her”. A.R. led me behind a wall, put an electroshock device on the left side of my stomach and threatened to use it if I didn’t defend his daughter from my friends; he also said that if he caught me one more time, he would beat me even more. I agreed to defend his daughter ... I want to add that I injured my left thumb while running away from the officers and it was bleeding; that’s why there were bloodstains on my jacket at the spot where my hands were handcuffed. The officers did not provide me with the first aid. All the blows were struck by one officer, Ž.S. I was beaten only in the police car; nobody beat me at the police station ... I suffered physical injuries due to the beating.” The applicant denied having resisted the police officers or having sworn at them. He also said that he had fallen down while running towards the railway station but not while being apprehended. 37. In September 2012 a court medical expert carried out an additional examination of the applicant’s medical file. The report on the results of that examination confirmed the findings of the previous medical report (see paragraph 15 above). It also specified that the applicant’s injuries were not likely to have been caused by falling down (sužalojimų visuma griuvimui nebūdinga), nor by punching or kicking, but that they had most likely been caused by a hard blunt object of a cylindrical shape. 38. On 5 October 2012 confrontations were arranged between the applicant and each of the officers A.R., Ž.S. and R.A. separately. All the officers repeated their earlier statements (see paragraphs 13, 23, 27 and 28 above) and the applicant denied them. A.R. confirmed that he had handcuffed the applicant. The officers stated that none of them had used any swear words or threats to the applicant. Meanwhile the applicant insisted that he had not resisted the officers and that he had not been warned about the possible use of restraining measures. He also denied falling to the ground while being apprehended near the railway station. 39. That same day a confrontation was arranged between the applicant and O.K. The officer stated that when he had arrived at the railway station the applicant was already in handcuffs and he was squirming but not actively resisting. He could not remember which officers had put the applicant into the police car. During a subsequent interview on 8 October 2012 O.K. retracted the statement he had made in his first interview, in which he had said that he had seen the applicant actively resisting the officers (see paragraph 29 above). O.K. stated that he had been mistaken and that his statements made during the confrontation were the correct ones. 40. On 12 December 2012 the Kaunas City Prosecutor discontinued the pre-trial investigation. The prosecutor held that physical force had been used against the applicant only to the extent that was strictly necessary to arrest him, and that the applicant’s allegations that he had been beaten up in the police car with a truncheon had not been proven. The Kaunas City Prosecutor also considered that the officers A.R., Ž.S. and R.A. could not have known at the time of the arrest that the applicant was a minor. The prosecutor concluded that the mere fact that the applicant had sustained injuries was insufficient to find that the police officers had acted unlawfully. 41. On 18 March 2013 the Kaunas District Court upheld the prosecutor’s decision. The court concluded that there was no “objective and indisputable evidence” that the police officers had exceeded their legal powers. It also referred to the earlier court judgments which had found the applicant guilty of an administrative violation (see paragraphs 19-20 above), concluding that the officers had had the right to use physical coercion in response to the applicant’s resistance. The court also considered that the pre-trial investigation had been thorough and comprehensive. On 11 April 2013 the Kaunas Regional Court upheld that judgment. 42. Subsequently the applicant’s mother requested the reopening of the investigation, but her request was dismissed on the grounds that there were no relevant new circumstances. | 1 |
test | 001-158200 | ENG | LTU | GRANDCHAMBER | 2,015 | CASE OF KUDREVIČIUS AND OTHERS v. LITHUANIA | 1 | No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) | Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Helena Jäderblom;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Krzysztof Wojtyczek;Luis López Guerra;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 12. The first applicant, Mr Arūnas Kudrevičius (hereinafter “A.K.”), was born in 1970 and lives in Vaitkūnai village, Utenos region; the second applicant, Mr Bronius Markauskas (hereinafter “B.M.”), was born in 1960 and lives in Triušeliai village, Klaipėda region; the third applicant, Mr Artūras Pilota (hereinafter “A.P.”), was born in 1973 and lives in Ožkasviliai village, Marijampolė region; the fourth applicant, Mr Kęstutis Miliauskas (hereinafter “K.M.”), was born in 1959 and lives in Jungėnai village, Marijampolė region; and the fifth applicant, Mr Virginijus Mykolaitis (hereinafter “V.M.”), was born in 1961 and lives in Varakiškė village, Vilkaviškis region. 13. On 15 April 2003 a group of farmers held a demonstration in front of the Seimas (the Lithuanian Parliament) building to protest about the situation in the agricultural sector with regard to a fall in wholesale prices for various agricultural products and the lack of subsidies for their production, demanding that the State take action. On 22 April 2003 Parliament passed a resolution on reinforcing the competitiveness of agriculture, providing for an increase in subsidies for the agricultural sector. According to the applicants, this resolution was not implemented by the government. 14. On 16 May 2003 the Chamber of Agriculture (Žemės ūkio rūmai), an organisation established to represent the interests of farmers, met to discuss possible solutions to the issues. If no positive changes in legal regulation were forthcoming, the measures foreseen included addressing complaints to the administrative courts. In the meantime, it was decided to organise protests, in three different locations next to major highways (prie magistralinių kelių), to draw attention to the problems in the agricultural sector. 15. In May 2003 the Kalvarija municipality issued a permit to hold peaceful assemblies in Kalvarija town “near the marketplace” from 8 a.m. to 11 p.m. on 13-16 May 2003, from 8 a.m. to 3 p.m. on 17 May 2003 and from 8 a.m. to 11 p.m. on 19-20 May 2003. The organisers had been warned about possible liability under the Code of Administrative Law Offences as well as under the Criminal Code, including under Article 283 of the latter (see paragraph 62 below). According to the Government, similar permits, accompanied by the same warnings, were issued for 21-23, 24 and 26-30 May 2003. 16. On 8 May 2003 the Pasvalys municipality issued a permit to hold a demonstration “at the car park at the sixty-third kilometre of the Via Baltica highway and next to that highway”. The farmers were also authorised to display agricultural machineries for ten days from 15 to 25 May 2003. On 12 May 2003 the organisers of the gathering were informed about possible liability under the Code of Administrative Law Offences as well as under the Criminal Code, including under Article 283 of the latter. 17. On 19 May 2003 the Klaipėda municipality issued a permit to hold an assembly in an “area in Divupiai village next to, but not closer than twenty-five metres from, the Vilnius-Klaipėda highway” from 11 a.m. to 11 p.m. on 19-25 May 2003. The permit specified that it granted the right to organise a peaceful assembly in compliance with the provisions set forth, inter alia, in the Constitution and in the Law on Assembly. It was also indicated therein that the organisers and the participants were to observe the laws and to adhere to any orders from the authorities and the police; failure to do so could engage their administrative or criminal liability. The second applicant, B.M., who was indicated as one of the organisers of the gathering, signed a receipt for the notification of the permit. 18. The Klaipėda police received information about the demonstrators’ possible intention to overstep the limits established by the permits. B.M. was therefore contacted by telephone and a meeting with him was organised in order to avoid unlawful acts during the demonstrations. 19. The demonstrations started on 19 May 2003. The farmers gathered in the designated areas. 20. On 21 May 2003 the farmers blocked and continued to demonstrate on the roads next to Dirvupiai village, on the Vilnius-Klaipėda highway, at the sixty-third kilometre of the Panevėžys-Pasvalys-Riga highway, and at the ninety-fourth kilometre of the Kaunas-Marijampolė-Suvalkai highway. 21. The Government underlined that the police had not received any prior official notification of the demonstrators’ intention to block the three major roads of the country. They described as follows the behaviour of the farmers and of the applicants during the demonstrations: (a) On 21 May 2003 at around 12 noon a group of approximately 500 people moved onto the Vilnius-Klaipėda highway and remained standing there, thus stopping the traffic. (b) On 21 May 2003 at 12 noon a group of approximately 250 people moved onto the Panevėžys-Pasvalys-Riga highway and remained standing there, thus stopping the traffic. Such blockage continued until 12 noon on 23 May 2003. The first applicant encouraged the demonstrators to move from the car park onto the highway. (c) On 21 May 2003 at 11.50 a.m. a group of 1,500 people moved onto the Kaunas-Marijampolė-Suvalkai highway and kept standing there, thus stopping the traffic. In addition, on the same day between 3 and 4.30 p.m. the third, fourth and fifth applicants drove tractors onto the highway and left them standing there. Such blockage continued until 4 p.m. on 22 May 2003. 22. On 22 May 2003 the farmers continued negotiations with the government. The next day, following a successful outcome to those negotiations, the farmers stopped blocking the roads. 23. The parties disagreed as to the extent of the disruption to traffic created by the farmers’ demonstrations. 24. According to the applicants (see paragraph 121 below), knowing that blockages were likely to occur, the police had prepared alternative road itineraries in the vicinity of the places where the demonstrations were held, so that the roadblocks would not disrupt the flow of goods. Indeed, on the days in question the latter had been “even better than usual”. This could be proven by the “data from posts where the roadblocks took place”. 25. In a letter of 24 August 2004 addressed to the applicants’ lawyer, the State Border Guard Service indicated that several queues of lorries (ranging from two to ten kilometres) had formed from 21 until 23 May in both directions in the proximity of the Kalvarija border crossing between Lithuania and Poland. According to the same letter, “there were no queues of passenger cars.” Moreover, no queues had formed at the Lazdijai State border post (another post on the Lithuanian-Polish border). 26. The Government first observed that the Vilnius-Klaipėda highway was the main trunk road connecting the three biggest cities in the country, while the Panevėžys-Pasvalys-Riga highway (otherwise known as Via Baltica) and the Kaunas-Marijampolė-Suvalkai highway were transitional trunk roads used to enter and leave the country. According to the Government, all three roads were blocked at locations next to the customs post for approximately 48 hours. 27. The Government alleged, in particular, that owing to the blocking of the Kaunas-Marijampolė-Suvalkai highway, which prevented vehicles from passing through the border control station, rows of heavy goods vehicles and cars formed in Lithuania and Poland at the Kalvarija border crossing. The heavy goods vehicles were forced to drive along other routes in order to avoid traffic jams. As the functioning of the Kalvarija customs post was disturbed, the Kaunas territorial customs authority was obliged to re-allocate human resources as well as to prepare for a possible re-organisation of activities with the State Border Guard Service and the Polish customs. As a consequence, the Kaunas territorial customs authority incurred additional costs; however, the concrete material damage had not been calculated. 28. According to a report of the Kalvarija police, the road was blocked on 22 May 2003. The lorries returning to Lithuania from Poland were directed by the police to a car park at the Kalvarija border crossing. At around 11.40 a.m. the lorry drivers approached the farmers. They demanded an end to the roadblocks, with the threat of using physical force. The police urged the parties to the conflict to calm down and to wait for the results of the negotiations between the farmers and the Prime Minister. According to the Government, the farmers and the lorry drivers had a few arguments, but more serious confrontations were avoided. At around 4.15 p.m. the farmers received a telephone call about the positive outcome of the negotiations and moved one tractor off the road. The traffic then resumed in both directions. 29. The Government also noted that, owing to the blocking of the Vilnius-Riga highway on 22 May 2003 from 2 until 4 p.m., heavy goods vehicles could not cross the border and rows of traffic of 1,600 and 700 metres respectively appeared in both directions. Cars took diversions along a gravel road. 30. On 1 September 2003 the Pasvalys police issued a certificate stating that on 19-23 May 2003 the farmers had held a demonstration in the car park at the sixty-third kilometre of the Panevėžys-Pasvalys-Riga highway. On 21 May 2003 at around midday the farmers had gone onto the highway and had stopped the traffic. They had only allowed through passenger vehicles and vehicles carrying dangerous substances. Vehicles that carried goods and cars were allowed to go through ten at a time on each side of the road once every hour. In order to improve the situation, the police had attempted to let the traffic bypass the blockade through neighbouring villages. However, owing to the poor condition of those neighbouring roads, not all lorries that carried goods were able to drive on them and they had to remain on the highway until the farmers had left. Some lorries became stuck in sand and special machinery was necessary to pull them out. The police indicated that the farmers had unblocked the highway at 4 p.m. on 23 May 2003. 31. As can be seen from the documents submitted to the Court, in May and September 2003 four logistics companies informed the police and Linava, the Lithuanian National Road Carriers’ Association, that they had sustained pecuniary damage in the sum of 25,245 Lithuanian litai (LTL – approximately EUR 7,300) as a result of the roadblocks during the farmers’ demonstrations. The companies stated that they would institute court proceedings in respect of those claims. 32. The Government alleged that notwithstanding the fact that only one claim for pecuniary damage was ultimately lodged (see paragraph 40 below), more than one carrier company incurred material loss owing to the disruption of traffic. As submitted by Linava, Vilniaus Dobilas incurred damage amounting to LTL 6,100 (approximately EUR 1,760); Rokauta incurred damage amounting to LTL 4,880 (approximately EUR 1,400); and Immensum incurred damage amounting to LTL 3 600 (approximately EUR 1,050). Moreover, in a letter of 26 May 2003 the company Ridma indicated that the loss incurred owing to the roadblocks amounted to LTL 10,655 (approximately EUR 3,000). 33. Pre-trial investigations against the applicants and a number of other persons, on suspicion of having caused a riot, were initiated. In July 2003 B.M., V.M., A.P. and K.M. were ordered not to leave their places of residence. That measure was lifted in October 2003. 34. On 1 October 2003 the police imposed a fine of LTL 40 (approximately EUR 12) on farmer A.D. According to the applicants, it was established in the police record relating to the fine that on 21 May 2003 A.D. had taken the farmers to block the Kaunas-Marijampolė-Suvalkai highway in Kalvarija municipality; he had walked in the middle of the road, pushing a cart in front of him, thus obstructing the traffic. By such actions A.D. had breach paragraph 81 of the Road Traffic Regulations (see paragraph 67 below) and thus committed an administrative law violation, as provided for in Article 131 of the Code of Administrative Law Offences (see paragraph 66 below). 35. The Government noted that the criminal proceedings against A.D. were discontinued on 1 August 2003 as he had not organised or provoked a gathering to seriously breach public order; his act (walking in the middle of the road pushing a cart in front of him) was not considered to fall under Article 283 § 1 of the Criminal Code (see paragraph 62 below). The Government further noted that the criminal proceedings had been discontinued on similar grounds in respect of three other persons. In respect of a fourth person the criminal prosecution was discontinued owing to his immunity as a Member of Parliament. 36. On 4 December 2003 an indictment was laid before the courts. B.M. and A.K. were accused of incitement to rioting under Article 283 § 1 of the Criminal Code. 37. The prosecutor noted that B.M. had taken part in the farmers’ meeting of 16 May 2003, at which the farmers had decided to hold demonstrations near major highways on 19 May and, should the government not satisfy their requests by 11 a.m. on 21 May, to blockade those highways. On 19 May B.M. had told the farmers to blockade the roads on 21 May. As a result, at 12.09 p.m. on that date around 500 farmers had gone onto the Vilnius-Klaipėda highway. The farmers had refused to obey police requests not to stand on the road. Consequently, traffic had been blocked until 1 p.m. on 23 May. Traffic jams had occurred on neighbouring roads and road transport in the region had become impossible. 38. With regard to A.K., the prosecutor claimed that he had also incited the farmers to blockade the highway. As a result, at midday on 21 May 2003 approximately 250 people had gone onto the Panevėžys-Pasvalys-Riga highway, refusing to obey police orders not to block the highway. The road had remained blocked until 10.58 a.m. on 23 May. The roads in the vicinity had become clogged. The normal functioning of the Saločiai-Grenctale border control post had been disrupted. 39. V.M., K.M. and A.P. were accused of a serious breach of public order during the riot, under Article 283 § 1 of the Criminal Code. The prosecutor maintained that on 21 May 2003, at around 11.50 a.m., approximately 1,500 people had gone onto the Kaunas-Marijampolė-Suvalkai highway at the ninety-fourth kilometre. At about 3-4 p.m. the aforementioned applicants had driven onto the highway with three tractors and had left the tractors on the carriageway. The three applicants had refused to follow police instructions not to breach public order and not to leave the tractors on the road. The tractors had remained on the road until 4.15 p.m. on 23 May 2003. As a result, the highway had been blocked from the eighty-fourth to the ninety-fourth kilometre. Due to the resulting increase of traffic on neighbouring roads, congestion had built up and road transport in the region had come to a halt. The normal functioning of the Kalvarija and Marijampolė State border control posts had been disrupted. 40. Within the criminal proceedings, a logistics company brought a civil claim against A.K., as the person who had incited the farmers to block the Panevėžys-Pasvalys-Riga highway, seeking damages of LTL 1,100 (approximately EUR 290) for the loss allegedly incurred by it owing to the blockading of that road. 41. Several hearings, during which a number of witnesses testified, took place before the Kaunas City District Court. 42. On 29 September 2004 the Kaunas City District Court found the applicants guilty of having incited riots or having participated in them, under Article 283 § 1 of the Criminal Code. 43. In convicting B.M., the District Court relied on video recordings of the events, documentary evidence and the testimony of one witness. The court concluded that B.M. had organised a gathering with the aim of seriously breaching public order, namely by rioting. B.M. had been one of the leaders of the farmers’ meeting on 16 May 2003, at which the farmers had decided to attempt to achieve their goals by organising protests next to major highways. The District Court noted that the second applicant had coordinated the actions of the farmers and as a consequence, on 21 May 2003, approximately 500 people had gone to the Vilnius-Klaipėda highway and had blocked it. As a result, traffic had been blocked until 23 May 2003. The ensuing serious breach of public order had been deliberate and had to be characterised as a riot. The District Court dismissed B.M.’s claim that he and other farmers had acted out of necessity because the roadblock had been their last opportunity to draw the government’s attention to their problems. The farmers had had an alternative, namely, they could have brought complaints before the administrative courts. The farmers had themselves mentioned that alternative during the meeting of 16 May 2003 (see paragraph 14 above). The District Court further noted that a person who created a dangerous situation by his or her actions could only rely on the defence of necessity when a dangerous situation arose through negligence (Article 31 § 2 of the Criminal Code – see paragraph 65 below). However, the actions of B.M. had been deliberate and it was therefore appropriate to find him guilty of organising the riot. 44. The District Court found it established, mainly on the basis of video recordings and documentary evidence, that A.K. had also organised a gathering with the aim of seriously breaching public order. He had taken part in the farmers’ meeting of 16 May 2003 and had known about the decision to hold protests next to the roads. When a crowd of farmers had blocked the Panevėžys-Pasvalys-Riga highway on 21 May 2003, public order had been seriously breached. Traffic had been stopped on that part of the road, causing inconvenience to drivers and goods carriers. The District Court held that “during the blockade of 21 and 22 May, A.K. coordinated the actions of the crowd, that is to say he gave orders that some of the vehicles should be let through, incited [the farmers] to hold on and not to move away from the highway, was in contact with the participants in the protests in Kalvarija municipality and Klaipėda region, [and] was negotiating with the authorities by mobile phone in the name of the farmers”. The District Court emphasised that the farmers who had gathered (approximately 250 people) “obeyed the actions of A.K. and followed his orders”. For the District Court, the actions of A.K. were to be characterised as organising a riot under Article 283 § 1 of the Criminal Code. 45. On the basis of written evidence submitted by Linava, the District Court also found that by having organised the blockade of the Panevėžys-Pasvalys-Riga highway, A.K. had caused pecuniary damage to three carrier companies. As one of the carriers had submitted a civil claim for the sum of LTL 1,100 (approximately EUR 290 – see paragraph 40 above), the District Court deemed it proper to grant that claim. 46. In finding V.M., K.M. and A.P. guilty of having caused a serious breach of public order during a riot, the District Court, on the basis of documentary evidence, audio-visual material and the testimony of two witnesses, established that on 21 May 2003 between 11.50 a.m. and 4.15 p.m. the three of them had driven tractors onto the Kaunas-Marijampolė-Suvalkai highway at its ninety-fourth kilometre. They had refused to obey lawful orders by the police not to breach public order and not to park the tractors on the road (ant važiuojamosios kelio dalies) and had kept the tractors there until 4.15 p.m. on 22 May 2003. As a consequence, and because about 1,500 people had gathered on the road, the traffic had been blocked between the eighty-fourth and ninety-fourth kilometre of the Kaunas-Marijampolė-Suvalkai highway, traffic jams had occurred and the normal functioning of the Kalvarija and Lazdijai border control offices had been disrupted. 47. The five applicants were each given a sixty-day custodial sentence (baudžiamasis areštas). The District Court also noted that all the applicants had positive characteristics and that there were no circumstances aggravating their guilt. Accordingly, there was reason to believe that the aim of the punishment could be achieved without actually depriving them of their liberty. Consequently, the District Court suspended the execution of their sentences for one year. The applicants were ordered not to leave their places of residence for more than seven days without the authorities’ prior agreement. This measure was to last for one year, whilst execution of the sentence was suspended. 48. The District Court also acquitted, for lack of evidence, two other individuals charged with organising the riots. 49. On 18 October 2004 the applicants lodged an appeal with the Kaunas Regional Court. They noted, inter alia, that another farmer, A.D., had been punished under administrative law for an identical violation (see paragraphs 34-35 above). 50. The applicants further argued that in European Union (hereinafter, the “EU”) member States, roadblocks were accepted as a form of demonstration, and that the right to demonstrate was guaranteed by Articles 10 and 11 of the Convention. They referred, inter alia, to Article 2 of EU Council Regulation (EC) No 2679/98 of 7 December 1998 (see paragraph 77 below) and to a report of 22 March 2001 by the European Commission (COM (2001)160) on the application of that Regulation, as well as to the judgment of the European Court of Justice (hereinafter, the “ECJ”) in the case of Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria (see paragraphs 73-76 below). 51. On 14 January 2005 the Kaunas Regional Court found that the District C The appellate court observed that the offence of rioting endangered public order, the safety of society, human health, dignity and the inviolability of property. The objective aspect of the offence was the organising of a gathering of people for a common goal – namely, to breach public order – and the implementation of their decision which, in the instant case, had been to organise the roadblocks. To constitute an offence, the actions also had to be committed deliberately, that is to say, the persons charged had to understand the unlawfulness of their behaviour. In relation to B.M. and A.K., the Regional Court observed that during the demonstrations the two applicants had told others that it had been decided to block the roads. It had been established that B.M. and A.K. had understood that the roadblocks would be illegal and that they had been warned about their liability as organisers. Even so, they had continued to coordinate the farmers’ actions and had insisted that the farmers would maintain the roadblocks. As a direct result of the actions of B.M. and A.K., on 21 May 2003 a crowd had gone onto the highways and had blocked them, thereby stopping the traffic and breaching the constitutional rights and liberties of others to move freely and without restriction, causing damage to goods carriers and thus seriously breaching public order. 52. The Regional Court also shared the District Court’s conclusion as to the reasonableness of convicting V.M., K.M. and A.P. It noted that by driving tractors onto the highway, thus causing traffic congestion and disturbing the work of the State border control service, and by refusing to obey lawful requests by the police not to park their tractors on the road, the three applicants had seriously breached public order. The fact that after the highway had been blocked the police and the drivers had negotiated with the farmers, with the result that some of the drivers had been let through, did not diminish the danger of the offence or its unlawfulness. The Regional Court also emphasised that the blockading of a major highway had had dangerous consequences and could not be considered to have been a mere administrative law offence such as a traffic violation. As to the applicants’ argument that their offences were identical to that for which another farmer, A.D., had been given a mere administrative sanction for a traffic violation (see paragraph 49 above), the Regional Court indicated that it was not an administrative tribunal and thus could not comment on the administrative offence. 53. Whilst noting that the applicants had the right to freedom of expression under Article 10 of the Convention, the Regional Court nevertheless observed that such right was not without restrictions, should the interests of public order and prevention of crime be at stake. Analogous limitations to freedom of expression were listed in Article 25 of the Lithuanian Constitution (see paragraph 61 below). On this issue, the Regional Court emphasised that the behaviour of B.M. and A.K., in guiding the actions of the other individuals involved in the protest, could not be regarded as a non-punishable expression of their opinion, because they had breached public order, thus engaging criminal liability. 54. The Regional Court further noted that the criminal offence had not lost its element of public danger merely because the government had refused to raise wholesale prices or had allegedly failed to take the necessary action. 55. On 2 March 2005 the applicants appealed on points of law. 56. On 4 October 2005 the Supreme Court, composed of an enlarged chamber of seven judges (see paragraph 70 below), dismissed the appeal. In providing an explanation as to the substance of the offence of rioting, as established in Article 283 § 1 of the Criminal Code (see paragraph 62 below), the Supreme Court referred to its classification as an offence against public order, which was the objective aspect of the crime (nusikaltimo objektas). In describing the scope of the offence, the aforementioned provision stipulated the following features: the organisation of a gathering with the aim of causing public violence, damaging property or otherwise breaching public order, or the commission of those actions during a gathering. For the Supreme Court, a riot was to be characterised as a situation where a gathering of people deliberately and seriously breached public order, caused public violence, or damaged property. The subjective aspect of the crime was that of direct intent (kaltė pasireiškia tiesiogine tyčia). The guilty person had to (i) be aware that he or she was performing an action that was listed as an offence in Article 283 § 1 of the Criminal Code and (ii) wish to act accordingly. 57. Turning to the circumstances of the present case, the Supreme Court found that the courts below had been correct in characterising the applicants’ actions as falling under Article 283 § 1 of the Criminal Code. In particular, the trial court had properly established all the prerequisites for the application of Article 283 § 1, namely that there had been a crowd and that public order had been breached by blocking the highways, stopping traffic and disturbing the work of the State border control service. The applicants had been sentenced for their offences under a law which had been in force at the time when they were committed and their sentences had been imposed in accordance with the provisions of the Criminal Code. It followed that the applicants’ convictions had been in accordance with the law and not in breach of Article 7 § 1 of the Convention. 58. The Supreme Court also stated that the applicants had not been sentenced for expressing their opinion or imparting ideas, actions which were protected by the guarantees of Article 10 § 1 of the Convention, but for actions by which they had seriously breached public order. 59. Lastly, the Supreme Court shared the Regional Court’s view that the applicants could not be regarded as having acted out of necessity (see paragraph 54 above). The fall in milk purchase prices and other problems with subsidies for agriculture had not constituted a clear or present danger to property, because the property in question had not yet materialised. The State had not deprived the applicants of their property, and their dissatisfaction with the government’s agricultural policy had not justified the acts for which the applicants had been convicted. 60. By court rulings of 17, 18, 20, 21 October and 7 November 2005, the Supreme Court discharged the applicants from their suspended sentences. | 0 |
test | 001-173381 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KALYAKANOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Branko Lubarda;Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. | 1 |
test | 001-179882 | ENG | CHE | CHAMBER | 2,018 | CASE OF GRA STIFTUNG GEGEN RASSISMUS UND ANTISEMITISMUS v. SWITZERLAND | 3 | Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 5. The applicant is a non-governmental organisation which promotes tolerance and condemns all types of racially motivated discrimination. It was established under Swiss law and registered in Zürich. 6. On 5 November 2009 the youth wing of the Swiss People’s Party (Junge Schweizerische Volkspartei) held a demonstration in the train station square in the town of Frauenfeld concerning a public initiative to support the prohibition of the building of minarets in Switzerland. After the event the party published a report on its website, including the following excerpts: “In his speech in front of the Thurgau government building [Thurgauer Regierungsgebäude], B.K., the president of the local branch of the Young Swiss People’s Party [“the JSVP”], emphasised that it was time to stop the expansion of Islam. With this demonstration, the Young Swiss People’s Party wanted to take an extraordinary measure in an extraordinary time. The Swiss guiding culture (“schweizerische Leitkultur”), based on Christianity, cannot allow itself to be replaced by other cultures, B.K. added. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one’s own identity.” 7. In response, the applicant posted an entry on its website in the section called “Chronology – Verbal racism”, entitled “Frauenfeld TG, 5 November 2009”, including the following extract: “According to the report of the event, B.K., the president of the local branch of the Young Swiss People’s Party, emphasised that it was time to stop the expansion of Islam. He added further: ‘The Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one’s own identity.’ Swiss People’s Party of Switzerland canton representative H.L. also spoke to the few people who attended; nevertheless, the Young Swiss People’s Party speaks of a great success. (Verbal racism)” 8. On 29 November 2009 the popular initiative against the construction of minarets was accepted in a referendum and a constitutional amendment banning the construction of new minarets was introduced. 9. On 21 August 2010 B.K. filed a claim for the protection of his personality rights with the Kreuzlingen District Court (Bezirksgericht Kreuzlingen). He applied, firstly, to have the applicant organisation withdraw the entry in question from its homepage and, secondly, for it to be replaced with the court’s judgment. The applicant organisation replied that the title of the Internet entry had to be considered as a value judgment, which could only lead to an infringement of personality rights if it entailed an unnecessarily hurtful and insulting attack on the person concerned. 10. On 15 March 2011 the Kreuzlingen District Court dismissed B.K.’s action. It held that the publication of the impugned article on the applicant’s website had been justified since it had related to a political discussion on a matter of public interest. 11. On appeal, on 17 November 2011 the Thurgau Cantonal High Court (Obergericht des Kantons Thurgau) reversed the first-instance judgment. It held that classifying B.K.’s speech as “verbally racist” had been a mixed value judgment, which could lead to an infringement of personality rights if it was based on untruths. The High Court concluded that B.K.’s speech itself had not been racist. It therefore ordered that the impugned article be removed from the applicant’s website and replaced with the court’s judgment. 12. On 25 January 2012 the applicant organisation filed an appeal with the Federal Supreme Court (Bundesgericht), reiterating its argument that any interference with B.K.’s personality rights had been justified. One of the applicant’s main aims was to fight racism and to inform the public about hidden and open racist behaviour. Its website stated that public comments would be documented, even if they did not fall within the scope of the prohibition of racial discrimination enshrined in Article 261bis of the Swiss Criminal Code. To fulfil its role of watchdog in that sense, it published articles and interviews concerning current events relating to racism and antiSemitism. 13. On 29 August 2012 the Federal Supreme Court dismissed the applicant organisation’s appeal, finding as follows (unofficial translation): “3. The classification of and commenting on a person’s statements as ‘verbal racism’ violate that person’s honour. Not only in the context of the criminal offence of racial discrimination (Article 261bis of the Criminal Code) but more generally, the term in question is, in the eyes of the average reader, capable of deliberately debasing the person whose comments have been classified as ‘verbally racist’, accusing him or her of behaviour which is frowned upon by society in the form of an act which is, at the very least, questionable in constitutional terms (cf. BGE 127 III 481 E. 2b / aa p. 487, 129 III 49 E. 2.2 p. 51 and 715 E. 4.1 p. 722). The appellant referred to the respondent’s speech at the public demonstration of 5 November 2009 on its website ... freely accessible on the Internet, commenting on the term ‘verbal racism’. It thereby violated the respondent’s honour as part of his personality within the meaning of Article 28 § 1 of the Civil Code. The infringement is unlawful if it is not justified by the consent of the injured party, by an overriding private or public interest or by law (Article 28 § 2 ZGB). 4. The main point in dispute is whether the appellant can rely on an overriding interest in classifying the respondent’s comments as ‘verbal racism’. 4.1. The case-law on press statements, on which the appellant relies, distinguishes between statements of facts on the one hand and value judgments on the other, and can be summarised as follows: ... 4.2. The appellant assigned the respondent’s statements to the section entitled ‘verbal racism’ ... That was a mixed value judgment. It contains a substantive core and, at the same time, a value judgment. In order to justify the substantive core, it is necessary to examine whether the respondent’s comments were indeed racist. 4.3. The term ‘racism’ is understood as ‘a doctrine’ which states that ‘certain races or nations are superior to others in terms of their cultural capacity’, and, on the other hand, a ‘certain attitude, manner of thinking and acting towards people of (certain) other races or nations’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 5, 1980, p. 2099). The adjective ‘verbal’ describes racism as ‘[occurring] with words, with the help of language’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 6, 1981, p. 2730). Verbal racism is, therefore, no longer merely a certain attitude, but an attitude in the instant case which was expressed publicly through language (as opposed to, for example, through deeds). ‘Verbal racism’ could therefore mean racial discrimination in the criminal sense, as the respondent claims. What is decisive, however, as the second-instance court correctly stated, is that the mere demonstration of a difference between two individuals or groups does not constitute racism. Racism begins where the difference amounts simultaneously to denigration of the victims and where the highlighting of differences is ultimately only a means to represent the victims negatively and to show disregard for their dignity. 4.4. The statements that led the appellant to conclude that there had been ‘verbal racism’ are the core phrases ‘it is time to stop the spread of Islam ... The Swiss guiding culture (“schweizerische Leitkultur”), based on Christianity, cannot let itself be repressed by other cultures ... A symbolic sign, such as the prohibition of minarets, is therefore an expression of the preservation of one’s own identity’. 4.4.1. In his public speech, the respondent expressed his opinion on the prohibition of minarets, which, in the opinion of the High Court, would not be compatible with freedom of religion and non-discrimination. He has, in that connection, compared his own beliefs (‘Christianity’) with foreign beliefs (‘Islam’), delimited them (‘to halt’, ‘preserving one’s own identity’) and described his own as worthy of protection and defence (‘Swiss leading culture’, ‘not to be repressed’). For the average listener, that does not result in the blanket denigration of the followers of Islam or show fundamental contempt for Muslims. 4.4.2. On the whole, it cannot be said that the comments made by the respondent, as understood by the average listener, could be described as ‘verbally racist’. Therefore, the substantive core does not apply and the assessment is not acceptable. It shows the respondent in the wrong light. Therefore, the mixed value judgment, which infringed personality rights, cannot be justified by any overriding interest within the meaning of Article 28 § 2 of the Civil Code. 4.4.3. That assessment cannot be altered by the fact that in the general interest of informing the public, there is an increased degree of publicity and a reduced level of protection for personality rights for people who engage in a political debate, such as the respondent in the campaign for the minaret initiative (see BGE 105 II 161 E. 3b p. 165, 107 II 1 E. 3b p. 5). That special framework allows for the assessment of breaches of honour on a somewhat different scale, but it can neither justify the dissemination of untruths nor the publication of value judgments that do not appear to be justified with regard to the underlying facts.” | 1 |
test | 001-161945 | ENG | ROU | CHAMBER | 2,016 | CASE OF LUKATS v. ROMANIA | 3 | Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions) | András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1936 and lives in Skokie, USA. 6. On 31 August 1998 the applicant lodged a request with the Bucharest Commission for Implementing Law no. 9/1998 (the County Commission) seeking compensation for assets owned by her ancestors and transferred to the Bulgarian State. On 29 April 2004 the County Commission issued a decision whereby the applicant was entitled to compensation of ROL 4,991,284,506 (approximately EUR 123,500 at the time). 7. Between 2005 and 2008 the applicant lodged several applications with the National Authority for Property Restitution (hereinafter “the National Authority”) and the President of Romania for payment of the compensation. On each occasion, the applicant was informed that her file was subject to ratification by the responsible authority for implementing Law no. 9/1998. 8. On 20 February 2009 the National Authority issued the ratification decision, confirming the applicant’s entitlement to RON 499,128.43 (approximately EUR 117,000 at the time). The decision mentioned that the payment would be made in two annual instalments, as provided for by the methodological rules for the implementation of the law, in force since 30 November 1998 and amended on 26 October 2007. 9. To date, the applicant has not received the compensation or any indication as to when such compensation would be paid. | 0 |
test | 001-171516 | ENG | UKR | ADMISSIBILITY | 2,017 | BATS v. UKRAINE | 4 | Inadmissible | André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Sergiy Goncharenko;Síofra O’Leary | 1. The applicant, Mr Anatoliy Yosypovych Bats, is a Ukrainian national who was born in 1947 and lives in Balta. 2. The applicant was represented by Mr V. Kutsokon, a lawyer practicing in Stara Synyava of the Khmelnytsk Region. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna, of the Ministry of Justice. 3. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Fifth Section decided to appoint Mr S. Goncharenko to sit as an ad hoc judge (Rule 29 § 1(b)). 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. Between 1993 and 2005 the applicant was dismissed several times from his position as chief forester at Balta Forestry and reinstated following court proceedings. 6. On 22 December 2005 the applicant was again dismissed from his position for inadequate performance of his professional duties. 7. On 17 January 2006 the applicant instituted civil proceedings in the Baltskiy District Court to be reinstated and claiming various payments in compensation. 8. On 21 February 2007 the District Court allowed the applicant’s claims in part. In particular, it found that the defendant, Balta Forestry, had failed to substantiate its allegations that the applicant’s performance at work had been inadequate and ordered his reinstatement. It also awarded him part of the sum claimed in compensation. 9. The defendant appealed, maintaining that the applicant had been dismissed lawfully. 10. On an unspecified date the Odessa Regional Court of Appeal (“the Court of Appeal”) scheduled a hearing for 27 September 2007. 11. On 13 September 2007 the Court of Appeal sent to the applicant, by registered mail with acknowledgement of receipt, an envelope which the applicant received on 15 or 16 September 2007 (see paragraph 13 below). 12. A copy of the envelope submitted to the Court bears no indication of its contents and the parties disagree as to those contents: 13. The applicant received the envelope on 15 or 16 September 2007. A copy of the acknowledgement slip provided to the Court by the Government contains a signature, purportedly that of the applicant, and a handwritten note, “27.09.07”, in the field of the slip for the “collect payment on delivery” arrangements. According to the applicant, even though he received the envelope, he was not familiar with the contents of the slip, did not sign it and the signature appearing on it was not his. 14. According to an undated certificate issued by the Court of Appeal’s clerk, on 3 (sic) September 2007 both the applicant and the defendant were informed of the hearing, to be held at 2 p.m. on 27 September 2007. 15. On an unspecified date the applicant lodged written comments with the Court of Appeal in reply to the appeal. 16. On 27 September 2007 the Court of Appeal examined the case in the applicant’s absence but in the presence of the defendant’s representative, who gave oral submissions to the effect that he maintained the appeal. The court found no reason warranting an adjournment on account of the applicant’s absence as the applicant had not filed any such request and had been duly notified of the time of the hearing. It examined the evidence in the file and the applicant’s written comments. 17. On the same date the court reversed the judgment of the trial court. Having looked again at the evidence, it concluded that the applicant had systematically failed to carry out his professional duties and had therefore been lawfully dismissed. 18. In November 2007 the applicant appealed in cassation, arguing that he had performed his professional duties properly. The applicant also complained that the appellate court had had no basis whatsoever to state that he had been duly notified of the appeal hearing. The only judicial correspondence he had received in connection with the preparation of the appeal hearing had contained a copy of the other party’s appeal. He had never been served with any summonses for the hearing informing him of its date and time. As a result, he had been deprived of the opportunity to confront his adversary before the Court of Appeal, which had led to the reversal of the earlier judgment in his favour. 19. On 11 June 2008 the Supreme Court dismissed the applicant’s application for leave to appeal, concluding that the Court of Appeal had complied with the substantive and procedural law in adjudicating the applicant’s case. 20. On 17 March 2010 the District Court refused to provide the applicant with a copy of the summons notifying him about the appeal hearing or evidence that such a summons had been delivered, stating that there were no such documents in the case file. 21. Following communication of the case to the respondent Government, on 15 August 2013 the District Court informed the Government Agent’s office that there was no summons for the hearing at the Court of Appeal in the case file because it had been sent to the applicant. The case file contained an acknowledgment slip showing that the summons in question had been served on the applicant in person. 22. The relevant provisions of the Code of Civil Procedure of 2004 as worded at the material time read as follows: “1. Parties to proceedings shall be summoned via judicial summonses (повістками про виклик) ... 4. A judicial summons shall be served in a manner that provides the persons summoned with sufficient time to appear before the court and to prepare for taking part in the judicial examination of the case, but it shall be served no later than seven days before the court session ... 5. A judicial summons and a slip acknowledging receipt ... shall be delivered by registered mail ... or via couriers to the address declared by the party or another person engaged in the proceedings. A party or his/her representative upon their consent may be given a judicial summons to be served on the respective participants of civil proceedings ...” “1. A judicial summons addressed to an invidual shall be handed to them against their signature ... 2. The slip acknowledging receipt of a summons with a mention of the date of service shall be returned ... to the court on the same day ...” “1. The appellate court shall adjourn should a party fail to appear, where there is no information about whether he/she has been served with the summons ... 2. Failure to appear by the parties or other persons engaged in the proceedings who have been duly notified of the time and place of the examination of the case shall not prevent the [the court] from examining the case.” “1. A court decision must definitely be quashed and the case remitted for fresh examination if: ... 3) the case was examined in the absence of any person engaged in the proceedings who was not duly notified of the time and place of the hearing; ... 2. Other instances of a breach or incorrect application of procedural rules may only be grounds for quashing a court decision where the breach has resulted in incorrect adjudication of the case ...” 23. By Resolution no. 1155 of 17 August 2002 the Cabinet of Ministers enacted a set of Postal Rules, which were in effect at the material time and which were repealed on 5 March 2009. Point 20 of the Rules provided that summonses were to be accepted for delivery by registered mail, with an acknowledgement of receipt, in envelopes which bore the words “Judicial summons”. | 0 |
test | 001-157538 | ENG | SVN | CHAMBER | 2,015 | CASE OF KOROŠEC v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano | 5. The applicant was born in 1980 and lives in Ljubljana. 6. He suffers from progressive spinal muscular atrophy and needs twenty-four hour assistance with all his daily activities. 7. In 2006 the Pensions and Disability Insurance Institute of the Republic of Slovenia (“the Institute”) awarded the applicant an assistance and attendance allowance (hereinafter “the allowance”) of 70% of the reference amount. 8. On 28 May 2009 the applicant’s general practitioner applied for an increase in the allowance due to the applicant’s worsening condition, referring in particular to the deterioration of the applicant’s respiratory functions. In the application the general practitioner indicated that the applicant needed twenty-four hour assistance by a family member or a lay care assistant, along with permanent professional assistance. At that time the applicant organised his care by hiring students to assist him in his daily activities and to provide the necessary aid. He also relied significantly on the assistance of his family members. 9. On 9 July 2009 the first-instance disability commission of the Institute (“the commission”) reported that the applicant did not need permanent, professional, medical assistance. The commission was composed of F.V., an internal medicine specialist, and M.F.B., an occupational medicine specialist. It gave its opinion on the basis of an examination of the medical documentation provided by the applicant, specifically opinions of a doctor of internal medicine, a pulmonologist and a clinical neurologist. They also examined the applicant. 10. On 20 July 2009, the Ljubljana unit of the Institute, relying on the opinion of the commission, dismissed the request for an increase in the allowance. 11. On 28 July 2009 the applicant lodged an appeal. 12. On 23 September 2009 the second-instance disability commission (“the second-instance commission”) of the Institute examined the applicant’s file and again reported that he did not need permanent professional assistance and that he could be cared for by a combination of care assistants without specific medical knowledge and by members of his family. The second-instance commission was composed of L.S., an occupational medicine specialist, and M. G., a specialist neuropsychiatrist. 13. On 24 September 2009 the Institute, referring to the conclusions of the second-instance commission, dismissed the applicant’s appeal. The Institute further referred to the 1998 Decision on Assistance and Attendance Allowance for Beneficiaries Suffering from a Severe Disability (see paragraph 23 below), according to which beneficiaries were only entitled to a higher allowance if they were in need of twenty-four-hour assistance by family members and further professional medical assistance. 14. On 22 October 2009 the applicant instituted court proceedings against the Institute before the Ljubljana Labour and Social Court, requesting the appointment of an independent expert to examine his medical file. 15. On 30 September 2010 the Ljubljana Labour and Social Court heard the applicant’s testimony and reviewed the case file. Subsequently it dismissed the applicant’s claim. The court rejected the applicant’s request for the input of an independent expert, concluding that the opinions of the first- and second-instance disability commissions of the Institute together with other evidence sufficed to establish that the applicant did not need professional assistance. The relevant part of the decision read as follows: “The court therefore fully accepts the opinions of the first- and second-instance disability commissions that the [applicant] did not require permanent professional care because the opinions of the disability commissions were in accordance with the other evidence adduced (the general practitioner’s request and the reports submitted by specialists).” 16. On 2 November 2010 the applicant lodged an appeal, challenging the conclusions of the court that he did not need professional assistance, and complaining that the court had failed to appoint an independent medical expert. The applicant highlighted that the court itself lacked the expertise to assess on its own the kind of assistance he was provided with and the kind he needed. 17. On 24 January 2011 the Higher Labour and Social Court dismissed the applicant’s appeal. It found that the first-instance court had based its decision on the opinions of the disability commissions of the Institute which had been composed of experts capable of assessing whether the applicant needed professional assistance. The relevant part of the decision reads as follows: “The appeal is unfounded in claiming that the [first-instance court] had concluded, without outside reference, despite the fact that it had no medical knowledge, that the care received by the [applicant] had been adequate. The court based its decision on the above cited opinions of the disability commission that had been assembled for the purposes of the pre-judicial proceedings. The [applicant] was examined by the first-instance disability commission; in giving their opinions both commissions also took into consideration the medical records submitted by his general practitioner.” 18. On 9 March 2011 the applicant lodged an application for leave to appeal on points of law. He, inter alia, challenged the position of the lower courts that there had been no need to appoint an independent medical expert as being contrary to the established case-law of the Supreme Court. According to the Supreme Court the opinions of the Institute’s Disability Commissions could not be considered independent in proceedings instituted against the decisions of the Institute and thus should not be used as evidence in these proceedings (see paragraph 29 below). 19. On 17 May 2011 the Supreme Court dismissed the applicant’s application, holding that the challenged decisions had not departed from the established case-law. 20. On 28 July 2007 the applicant lodged a constitutional complaint. 21. On 11 June 2012 the Constitutional Court dismissed the applicant’s constitutional complaint with reference to section 55.b of the Constitutional Court Act (see paragraph 30 below). | 1 |
test | 001-159797 | ENG | UKR | COMMITTEE | 2,016 | CASE OF STABROVSKA v. UKRAINE | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | André Potocki;Ganna Yudkivska;Síofra O’Leary | 4. The applicant was born in 1950 and lives in Kyiv. 5. On 22 July 2006 the applicant’s son – a young man who was born in 1982 – left home and never returned. 6. On that day a young man was found severely injured and unconscious, lying in a street in Kyiv. An ambulance and the police attended the scene of the incident. According to the report of a police officer of the Podilskyy District Police Department of Kyiv (“the Police Department”), a doctor explained to him that the man had fallen from a building with a height of approximately five metres; the doctor also specified the man’s surname, which was the same as that of the applicant’s son. 7. The injured man was taken to hospital, where his surname was noted down slightly differently. On 29 July 2006 he died in hospital. According to the post-mortem examination, the man died from a serious craniocerebral injury; the injuries identified on the body (including the one which was fatal) could have been sustained as a result of his fall. 8. On 31 July 2006 the applicant – who had no information concerning the whereabouts of her son – reported his disappearance to the Police Department. 9. On 18 September 2006 the unclaimed body of the man found in the street was buried in a municipal cemetery. 10. In March 2007 the applicant was invited by the police to look at a picture of the man found in the street. The applicant found that the man very closely resembled her son. 11. Following the exhumation of the body of the man found in the street, forensic medical experts conducted two DNA examinations. On 14 July 2008 they concluded with 98.73% certainty that it was the body of the applicant’s son. 12. On 16 October 2006 the Podilsky District Prosecutor’s Office of Kyiv (“the Prosecutor’s Office”), having conducted pre-investigation enquiries, refused to open a criminal investigation into the disappearance of the applicant’s son. The Prosecutor’s Office had regard to the unsuccessful searches carried out by the police and the statements of G., K., D. and L., who had been acquaintances of the applicant’s son but could not give any information as to his whereabouts. 13. On 24 May 2007 the Prosecutor’s Office refused to open a criminal investigation into the incident regarding the man who had been found injured and unconscious in the street. According to that decision, the identity of the man had not been established. The Prosecutor’s Office had regard to the statements of G., K., L. and other people, who had submitted that they had known the man and that he had often talked about suicide. 14. On 12 September 2007 the Podilskyy District Court of Kyiv quashed the decision of 16 October 2006 as unsubstantiated, and ordered further pre-investigation enquiries. 15. On 25 March 2008 the Kyiv Prosecutor’s Office quashed the decision of 24 May 2007 as unsubstantiated, and ordered additional enquiries to establish the circumstances of the incident and the identity of the deceased. 16. In addition to the above decisions refusing to open investigations, on more than ten occasions between 2007 and 2012 the Police Department and the Prosecutor’s Office (following the pre-investigation enquiries) refused to open criminal investigations into the disappearance and death of the applicant’s son. Those decisions were quashed as unsubstantiated by the supervising courts or prosecutors, and further pre-investigation enquiries were ordered. In particular, on 3 August 2011 the Podilskyy District Court of Kyiv ordered further pre-investigation enquiries, stating that it was necessary to carry out an inspection of the scene of the incident with a forensic medical expert. Among other things, the court also stated that detailed drawings and photographs of the site had to be prepared; the expert had to be questioned in order to establish whether the applicant’s son could have fallen from the building and, if so, whether he could have sustained the injuries found on his body; and additional steps had to be taken to identify potential witnesses. 17. In the last decision of 9 August 2012, the Podilskyy District Prosecutor’s Office of Kyiv refused to open criminal proceedings in relation to the death of the applicant’s son. According to that decision, the man found in the street had been identified, with a high degree of certainty, as the applicant’s son. He could have sustained fatal injuries as a result of his fall; there had been no evidence of violence and the incident did not appear to have had any criminal element. | 1 |
test | 001-161032 | ENG | SVN | ADMISSIBILITY | 2,016 | LORGER v. SLOVENIA | 4 | Inadmissible | András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The applicant, Ms Danica Lorger, is a Slovenian national who was born in 1955 and lives in Ljubljana. She was represented before the Court by Odvetniška Pisarna Tine Šnajder Paunović, a law firm practising in Ljubljana. 3. On 22 December 2009, following her dismissal from work, the applicant brought a claim against her former employer in the Ljubljana Labour Court, requesting that the dismissal be declared unlawful and that she be reinstated to her previous position. She alleged, inter alia, that her previous employer had transferred its entire printing business to another company, and that this company (by virtue of the applicable labour law) had a duty to assume the contractual obligations of her previous employer. 4. On 29 November 2010 the Ljubljana Labour Court dismissed the applicant’s claim, having established that her employer had in fact closed its printing business and terminated the employment contracts of all its employees in the printing department. The court found that the termination was justified, having regard to the circumstances. Moreover, it held that the applicant’s previous employer had not transferred its printing business, but had merely sold the printing equipment to another company. 5. The first-instance judgment included information on legal remedies and drew the applicant’s attention to the fact that the provisions of the Civil Procedure Act concerning the amendment and perfection of pleadings did not apply to appeal proceedings. 6. On 14 January 2011 the applicant lodged an appeal with the Higher Labour Court. 7. On 6 September 2011 the Higher Labour Court dismissed the applicant’s appeal, finding that the first-instance judgment did not contain any error of fact or law. The court confirmed that the sale of the printing equipment had not constituted a transfer of the business, and that the applicant was therefore not entitled to continue her employment with the new owner of the equipment. 8. On 9 November 2011 the applicant lodged an appeal on points of law. The appeal document was submitted with a power of attorney, which was given for the specific purpose of lodging the appeal in the applicant’s case. The power of attorney was signed by the applicant and her lawyer. The appeal document itself bore the lawyer’s stamp, but was not signed by either the applicant or her lawyer. 9. On 6 February 2012 the Supreme Court rejected the applicant’s appeal on points of law as inadmissible for failure to meet the formal requirements. The court explained that sections 335 and 383 of the Civil Procedure Act set down minimum requirements for appeals on points of law: identification of the judgment which was subject to appeal and a signature of either the appellant or the lawyer. The Supreme Court noted that the appeal on points of law was not signed by either the applicant or her lawyer, rendering it incomplete. According to the rules of civil procedure, an incomplete appeal on points of law was to be rejected forthwith, without a party being given the opportunity to perfect it. 10. On 19 April 2012 the applicant lodged a constitutional complaint with the Constitutional Court, alleging that one of the component parts of the appeal on points of law was the original power of attorney signed by both herself and her lawyer. The applicant was of the view that the sanction of rejecting her appeal on points of law constituted an excessive interference with her right to judicial protection and her right of appeal. The applicant pointed out that the Supreme Court’s rejection had precluded her right to appeal, as the time-limit for lodging an appeal had meanwhile expired. In her opinion, in labour dispute cases such as her own, where workers, as the weaker parties, were aiming to protect their socioeconomic status, they should not be made to suffer such grave consequences. In this connection, the applicant claimed that the interference complained of was disproportionate to the aim pursued by the legislature. According to a parliamentary bulletin containing draft laws and explanatory commentary, the 2008 amendment to the Civil Procedure Act – which had, inter alia, removed the possibility of amending or perfecting incomplete pleadings in appeal proceedings – had been passed with a view to tackling the backlog of cases pending before the higher courts, thereby guaranteeing a party’s right to trial within a reasonable time. The applicant, however, pointed out that the rule on the immediate rejection of incomplete pleadings did not affect an appellant’s duty to pay court fees. While the higher courts continued to call upon appellants to pay fees instead of rejecting their applications forthwith, the applicant had not been afforded the possibility of remedying the procedural defect in her appeal on points of law. Having regard to the unchanged rules regarding the payment of fees, the applicant maintained that the rule in question did not in fact pursue the legitimate aim of accelerating proceedings. 11. On 12 June 2012 the Constitutional Court dismissed the applicant’s constitutional complaint, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant. 12. The relevant provisions of the Civil Procedure Act (Official Gazette no. 73/07, with a further amendment passed on 9 May 2008, Official Gazette no. 45/08) state: “... In extraordinary judicial review proceedings, a party may only perform procedural steps through a representative who is a practising lawyer.” “If pleadings are unclear or do not contain all of the information necessary for proceeding with the case, the court shall request the person submitting the pleadings to amend or perfect them. ... Upon ordering the amendment or perfection of pleadings, the court shall fix a time-limit for such changes. ... If the pleadings are not amended or perfected so as to be capable of being dealt with, the court shall reject them. ...” “An appeal shall contain 1. a reference to the decision which is subject to appeal; 2. a statement as to whether the decision is being challenged in whole or in part; 3. the grounds of appeal; and 4. the signature of the appellant.” “In appeal proceedings, the provisions of section 108 of this Act concerning the amendment or perfection of incomplete pleadings are not applicable. ...” “An out-of-time, incomplete or inadmissible appeal shall be rejected by order of the presiding judge of the court of first instance without a hearing. ... An appeal is incomplete if it does not contain the elements referred to in the first and fourth points of section 335 of this Act. ...” “When the case file for the appeal arrives at the court of second instance, the reporting judge shall decide whether the appeal is ... complete ... An incomplete ... appeal shall be rejected by order of the reporting judge, if the presiding judge of the panel of the court of first instance has not already done so (section 343). ...” “An appeal on points of law may be lodged against a final judgment of a court of second instance within thirty days of service of a transcript of the judgment (in the case of a statutorily permitted appeal), or within fifteen days of service of a Supreme Court decision granting leave to appeal (in cases of leave to appeal). An appeal on points of law shall be permitted if the value of the subject of the part of the final judgment which is in issue exceeds EUR 40,000 (statutorily permitted appeal). If an appeal on points of law is not permitted under the provisions of the preceding subsection, it may only be lodged if leave to appeal is granted by the court under section 367.a of this Act. ...” “An appeal on points of law may be lodged: 1. on the grounds of a violation of the essential requirements of civil procedure referred to in the second subsection of section 339 of the present Act, except where the violation concerns an issue of territorial jurisdiction ... or arbitration agreement ..., or if the judge of the court of first instance has given a judgment without hearing the case ..., or if the court has adjudicated upon a claim which is subject to another action which is pending ..., or if the public has been wrongfully excluded from the substantive hearing ...; 2. on the grounds of a violation of the essential requirements of civil procedure referred to in the first paragraph of section 339 of this Act in the proceedings before the court of second instance; or 3. on the grounds of a violation of substantive law. ... An appeal on points of law may not be lodged on the grounds of erroneous or incomplete determination of the facts. ...” “If not otherwise provided for in sections 367-382, the provisions of this Act concerning appeals against judgments (sections ... 335, 336) ... shall be applicable mutatis mutandis to proceedings concerning appeals on points of law.” | 0 |
test | 001-182449 | ENG | POL | COMMITTEE | 2,018 | CASE OF SEPCZYŃSKI v. POLAND | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Aleš Pejchal;Krzysztof Wojtyczek | 5. The applicant was born in 1987 and lives in Łomża. 6. On 7 August 2010 the applicant had a motorcycle accident in which he broke his right arm and right thigh. Between 13 and 22 December 2010 the applicant underwent an arthroscopy on his right knee. Between 25 January and 15 February 2011 the applicant underwent rehabilitation treatment in Łomża Regional Hospital and during this stay no dysfunction was diagnosed in his right foot. 7. Subsequently, between 28 March and 26 July 2011, he was detained in Białystok Remand Centre. While in prison, he was examined three times (on 1 and 18 April and on 13 May 2011) by an orthopaedist, who observed that the applicant required physical therapy in the light of a limitation of his knee-joint movement, the atrophy of a thigh muscle, and an injury to a peroneal nerve. On 11 April 2011 the applicant was examined by a neurologist who likewise found atrophy of the thigh muscle and impaired bending of the right foot, which he attributed to an injury to the peroneal nerve. The applicant never received any physical therapy during his imprisonment, instead being offered only nonsteroidal anti-inflammatory medicines. 8. On an unspecified date, but not later than 27 March 2012, the applicant brought a civil action against the State Treasury/Białystok Remand Centre for infringement of his personal rights, claiming that the prison healthcare system had failed to provide him with appropriate medical care during his detention and, moreover, that the cells had not met the minimum spatial requirement of 3 square metres per person and had been mouldy and infested with insects. He requested 200,000 Polish zlotys (PLN) in compensation, the equivalent of approximately 48,300 euros (EUR). 9. On 27 March 2012 the Białystok Regional Court (Sąd Okręgowy) exempted the applicant from the court fees. 10. On 20 January 2014 the Białystok Regional Court granted the applicant PLN 23,000 (approximately EUR 5,550) and dismissed the remainder of his action. The court held, particularly on the basis of the medical expert opinion, that the applicant had had a motorcycle accident and had required physical therapy as recommended by the prison orthopaedist. However, he had not been given any, either in prison or outside, which had resulted in a deterioration of his health. The court established that, due to the lack of physical therapy, the applicant had suffered atrophy of the thigh muscle and foot drop affecting his right foot. The court compared this finding with the fact that upon his arrival the applicant had not been suffering from foot drop, the pain in his knee had not been severe, and his right leg muscles had been working more effectively. The court emphasised that the applicant had not been offered proper treatment despite a worsening of his symptoms. These changes in his physical condition would not have been irreversible, but the break in the therapy had entailed a prolonged rehabilitation process. The court stated that the rehabilitation process for the applicant would be long and arduous, a situation which could have been avoided had the defendant acted appropriately. The court held that the applicant had suffered physical pain of significant seriousness, which, in turn, had had negative psychological consequences. The court therefore found the applicant’s claim for compensation for lack of adequate medical care partly justified. The claim concerning the alleged overcrowding and inadequate sanitary conditions was dismissed in full. The court also ordered the applicant to reimburse PLN 3,186 (EUR 766) for the costs of the defendant’s legal representation and PLN 10,932 (EUR 2,628) in court fees (in total: PLN 14,118 (EUR 3,394)). 11. The applicant did not lodge an appeal against the first-instance judgment. 12. Following the defendant’s appeal against the judgment, on 12 September 2014 the Białystok Court of Appeal (Sąd Apelacyjny) amended the judgment, reduced the compensation granted to the applicant to PLN 13,000 (EUR 3,095), and upheld the first-instance court’s findings of fact and law. The applicant was not ordered to pay the court fees for the proceedings before that court. This court pointed out that in the experts’ opinions it was not specified, even approximately, what the effects of the negligence might be, how much longer the rehabilitation process would take, or how much stronger the pain had become in comparison to pain experienced previously by the applicant. | 1 |
test | 001-175137 | ENG | LTU | CHAMBER | 2,017 | CASE OF ŠIDLAUSKAS 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) | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani | 5. The applicant was born in 1945 and lives in Jonava. 6. In 1994 the applicant bought an apartment in Jonava. In 1998 he lost his regular job and was no longer able to pay for utilities. 7. In 2000 the utility provider instituted civil proceedings against the applicant concerning his debt of 2,861 Lithuanian litai (LTL – approximately 828.60 euros (EUR)). The domestic courts allowed the claim. In 2003 the judgment was transferred to a bailiff for enforcement. The bailiff decided to direct enforcement against the applicant’s apartment. On 6 October 2004 he organised a public auction at which the apartment was sold to a third party for LTL 3,390 (approximately EUR 982). On 18 November 2004 a district court confirmed the transfer of the apartment to the third party. 8. Since that date, the applicant has not had a permanent home. He submitted that he had been living in temporary accommodation, at times in unsuitable conditions, and often in exchange for manual work. 9. Between 2006 and 2008 the apartment was resold and gifted to different individuals on several occasions. 10. In November 2007 the applicant instituted civil proceedings before the Jonava District Court, arguing that the sale of his apartment at the public auction had been unlawful. The applicant submitted that, in accordance with the domestic law, taking a person’s home in order to enforce a court judgment was only permitted when the debt in question was larger than LTL 3,000 (see paragraph 22 below), which had not been the case here (see paragraph 7 above). The applicant also submitted that he had owned 0.05 hectares of land near Jonava, so the enforcement should have begun in respect of that property and not his only home (vienintelė gyvenamoji vieta). In view of the alleged unlawfulness of the sale, the applicant claimed damages jointly from the bailiff and the bailiff’s professional liability insurer. According to the applicant, restitution in integrum was not possible because there was no indication that the third party who had bought the apartment at the public auction had acted in bad faith. Therefore, he claimed LTL 51,000 (approximately EUR 14,770) in damages, an amount corresponding to the market price of the apartment at the time of the submission of the claim. 11. The defendants (the bailiff and his professional liability insurer) contested the applicant’s claim. They submitted that the value of the applicant’s land had been insufficient to cover his debt, so the enforcement had had to be directed against the apartment. They also argued that the applicant’s debt (LTL 2,861) and the enforcement expenses (LTL 540), taken together, had exceeded LTL 3,000, and thus the sale of his apartment had been in accordance with the domestic law. The defendants further argued that the applicant had acted in bad faith – he had not appealed against the execution writ or the results of the public auction, and he had submitted his claim at the very end of the time-limit because he had been waiting for the market price of the apartment to increase. Therefore, they argued that the applicant could not claim damages corresponding to the market price of the apartment at the time of the submission of the claim, but only the price for which the apartment had been sold at the public auction – LTL 3,390 (see paragraph 7 above). 12. On 17 June 2009 the Jonava District Court dismissed the applicant’s claim. It acknowledged that his debt had been below the required threshold of LTL 3,000 and that the bailiff had erred by calculating the debt together with the enforcement expenses. However, the court considered that this breach had not been such as to warrant the annulment of the sale. Accordingly, it dismissed the applicant’s claim for damages. The court also noted that the applicant had submitted his claim three years after the sale and on the last day permitted by the time-limit, when the market price of housing was several times higher than in 2004. Therefore, his claim for damages corresponding to the market price of the apartment at the time of the submission of the claim could be regarded as an attempt at unjust enrichment (vertintinas kaip siekimas nepagrįstai praturtėti). 13. The applicant appealed against the Jonava District Court’s judgment. He and the defendants presented essentially the same arguments as in their pleadings before the first-instance court (see paragraphs 10-11 above). 14. On 1 October 2009 the Kaunas Regional Court quashed the firstinstance judgment and allowed the applicant’s claim in its entirety. The court held that the bailiff had acted in violation of domestic law, firstly by failing to direct the enforcement against the applicant’s land, but also by selling his apartment at a public auction even though his debt had been less than LTL 3,000. The court considered that the bailiff had failed to respect the balance between the interests of the debtor (the applicant) and the creditor. It held that, because of the material breaches of the relevant law, the sale of the applicant’s apartment had to be declared unlawful. 15. Accordingly, the Kaunas Regional Court decided to award the applicant damages from the bailiff’s professional liability insurer. It stated that it “essentially agreed with the amount claimed by the applicant” (iš esmės sutinka su ieškovo nurodyta suma) and awarded him LTL 51,000 (approximately EUR 14,770), after subtracting the amount of his debt (see paragraph 7 above). 16. The bailiff’s professional liability insurer appealed against the Kaunas Regional Court’s judgment. It submitted, inter alia, that the amount of damages awarded to the applicant had no basis, and the court should have either ordered restitution in integrum or awarded the applicant the amount for which his apartment had been sold at the auction (see paragraph 7 above), but not its market price in 2007, which had increased significantly since 2004. 17. The applicant contested the appeal, arguing that there was no legal obligation for him to ask for restitution rather than for damages, and that the amount of damages was a question of fact which the Supreme Court could not examine. 18. On 8 February 2010 the Supreme Court amended the judgment of the Kaunas Regional Court in part. It upheld the conclusion that the sale of the applicant’s apartment had been unlawful for the reasons established by the lower court (see paragraph 14 above). The Supreme Court then reiterated its own case-law that, where the sale of property at a public auction is unlawful because of a bailiff’s actions, restitution in integrum should not be applied; accordingly, it considered that the most appropriate way of protecting the applicant’s rights was by awarding him damages. However, the court considered that, in line with “the nature of the obligation and the principles of equity, reasonableness and good faith” (pagal prievolės esmę, atsižvelgiant į teisingumo, protingumo ir sąžiningumo kriterijus), the amount of damages in the applicant’s case had to be assessed at the moment of the unlawful act, that is, the sale of the apartment. According to the State Enterprise Centre of Registers, the market price of the applicant’s apartment at the time of its sale had been LTL 12,100 (approximately EUR 3,504). Therefore, the Supreme Court awarded the applicant that amount, after subtracting his debt (see paragraph 7 above) and the bailiff’s enforcement expenses (see paragraph 11 above). | 1 |
test | 001-142192 | ENG | GBR | CHAMBER | 2,014 | CASE OF THE NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS v. THE UNITED KINGDOM | 1 | Remainder inadmissible;No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney | 6. The applicant is a trade union based in London with a membership of more than 80,000 persons employed in different sectors of the transport industry in the United Kingdom. 7. Noting that in the domestic system industrial disputes are governed by very detailed legislative provisions, the applicant union raised two specific limitations on the statutory protection of strike action that it submitted were inconsistent with Article 11 of the Convention, each of the contested limitations being exposed by a separate set of facts. 8. The relevant set of facts relied on under this head involved the company EDF Energy Powerlink Ltd. (EDF), which was under contract to manage, operate and maintain the electrical power network used by London’s underground transport system. The RMT was one of several trade unions recognised by the company for the purposes of collective bargaining. In all, the company employed some 270 staff at three different sites, the biggest one being that at Tufnell Park with 155 employees. According to the applicant union, there were 52 RMT members there at the relevant time. The company would not have known which of its employees were members of a trade union, as it did not operate a system for deducting union subscriptions from staff wages. 9. Between June and September 2009, the applicant union and the company held several rounds of negotiation on pay and conditions of service. Dissatisfied with the company’s offer, it decided to embark on industrial action and on 24 September gave the requisite ballot notice to the company (see paragraph 18 below). The notice described the category of workers that would be voting on industrial action as “Engineer/Technician” and stated how many of such were based at each site. The following day the company wrote to the applicant union, stating that it did not recognise the term “Technician” (it categorised its workers in a more precise way: fitters, jointers, test-room inspectors, day testers, shift testers, OLBI fitters). It considered the ballot notice served on it was therefore not compliant with the relevant statutory provisions. The applicant union replied the following week, maintaining that the term it had used was sufficient to allow the company to know which employees were concerned, thereby meeting the purpose of the relevant provisions of law. 10. Following a further exchange of correspondence between the two sides, the company applied to the High Court for an injunction to restrain the applicant union from calling industrial action on the basis of the ballot. The injunction was granted by Blake J on 23 October 2009. 11. The judge did not accept the applicant union’s claim that the statutory requirements unduly restricted the exercise of its right to call industrial action, this same argument having been rejected by the Court of Appeal in the case of Metrobus Ltd v. Unite the Union ([2009] EWCA Civ 829). He also rejected the argument that since the procedure was still at an early stage it would be premature to put a stop to it. Instead he considered the risk of unlawful strike action to be sufficiently imminent to justify the injunction. Given the sector involved, the implications of a shutdown would be substantial, with widespread ramifications elsewhere. Addressing the question whether the applicant union had in fact given sufficient indication of the category of staff that would be balloted, the judge found that it had not, since the union’s members at Tufnell Park included persons working at different trades. The applicant union was not under an absolute duty, but instead a duty to do its reasonable best to provide sufficient information to the company. The fact that it used its own system of job classification was relevant but not decisive. Similarly, the fact that a union might not record or possess such information could be a highly material consideration, but not necessarily a decisive one. The applicant union had accepted that it was practicable for a union to supply the necessary information in the context of a small place of employment – it was therefore neither onerous nor unreasonable to require it to do so. Finally, the judge observed that while there was as yet no stated intention on the part of the applicant union to call a strike (the ballot not having taken place), there was a clear nexus between the failure to provide the requisite notice and the employer’s ability to respond to the situation either by making preparations for a work stoppage or seeking to persuade employees not to vote for industrial action. The applicant union’s failure to comply with the statutory requirements was therefore not a mere technical or immaterial breach. 12. Application for permission to appeal was refused on the papers on 24 November 2009. Renewed application for permission to appeal was refused on 26 January 2010, by which point the industrial dispute between the applicant union and EDF had already been resolved. 13. Following the granting of the injunction against the strike, the applicant union set about gathering the precise job descriptions of the workers concerned and included these in a fresh notice of a strike ballot, the result of which supported industrial action. This went ahead on dates in December 2009 and early January 2010. EDF made an improved offer on 7 January 2010 which was accepted by the union’s members and took effect as a collective agreement on 1 April of the same year. 14. The set of facts relied on under this head involved some RMT members who were employed in railway maintenance by Fastline Limited, a company that formed part of a group of companies known as Jarvis plc. Another company in the group, Jarvis Rail Limited, was engaged in rail engineering work. At the time, Fastline and Jarvis Rail Limited (“Jarvis”) employed approximately 1,200 persons in total, 569 of whom were members of the RMT. In August 2007, Fastline transferred part of its undertaking, comprising twenty employees, to another company known as Hydrex Equipment (UK) Ltd (“Hydrex”). These employees’ existing terms and conditions were preserved by Hydrex, as required by law (Transfer of Undertakings (Protection of Employment) Regulations 2006). According to the applicant union, the employees involved were nonetheless concerned for their situation, as Hydrex workers were paid significantly less. It also appeared that trade unions had less influence in that company. 15. In March 2009 Hydrex’s management informed the ex-Jarvis employees that because of difficult market conditions it intended to reduce the level of their terms and conditions to that of other Hydrex staff. This meant a reduction in salary of some 36-40%, according to the applicant union. In the months that followed, the applicant union made representations to Hydrex on behalf of the employees concerned but without achieving any agreement. When the company indicated that it intended to proceed with its plan, the applicant union organised a strike ballot of the workers concerned (seventeen by that stage). They voted in favour of a strike, which took place between 6 November and 9 November 2009. During the strike, the participants organised pickets at a number of the sites where they normally carried out their work. This caused Hydrex to write to the applicant union to remind it that by law picketing could take place only at or near the employer’s premises and to warn that the union was exposing itself to liability for any economic loss incurred by the company due to this unlawful action (see paragraph 19 below). 16. A second strike was announced for 18-20 November 2009, but this was postponed when Hydrex indicated its willingness to resume discussions with the applicant union. This led to a revised offer which the union submitted to its Hydrex members, recommending that they accept it. The result of the vote was known on 21 December 2009. Nine votes were cast, all of them rejecting the Hydrex offer. According to the applicant union, its position was extremely weak given the very small number of its members in the Hydrex workforce. These were far too few for their strike action to have any appreciable effect on the company, whose activities had not really been disrupted at all. The applicant union considered that it would have been in a position to defend its members’ interests much more effectively had it been able to mobilise its Jarvis members as well. The simple threat of a strike on this scale, and a fortiori an actual stoppage, would have exerted significantly more pressure on Hydrex to maintain existing terms and conditions. The applicant union stated that Jarvis employees would have been willing to strike in support of their colleagues at Hydrex. Instead, the Hydrex members had had to stand alone, and in the end had no option but to accept the new terms and conditions. They did so under protest. 17. According to the applicant union, neither Jarvis nor Hydrex exist any longer, having been put into administration in March 2010 and November 2011 respectively. The Hydrex undertaking was purchased by another company, which in turn sold it on in November 2012. 18. In relation to the EDF case, Blake J referred to the following provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”): “(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action (a) is not protected unless the industrial action has the support of a ballot, and (b) where section 226A falls to be complied with in relation to the person’s employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.” “(1) The trade union must take such steps as are reasonably necessary to ensure that— (a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), ... is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot. (2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing— (a) stating that the union intends to hold the ballot, (b) specifying the date which the union reasonably believes will be the opening day of the ballot, and (c) containing— (i) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, or ... (2A) The lists are— (a) a list of the categories of employee to which the employees concerned belong, and (b) a list of the workplaces at which the employees concerned work. (2B) The figures are— (a) the total number of employees concerned, (b) the number of the employees concerned in each of the categories in the list mentioned in subsection (2A)(a), and (c) the number of the employees concerned who work at each workplace in the list mentioned in subsection (2A)(b). ... (2D) The lists and figures supplied under this section, or the information mentioned in subsection (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1)(a).” 19. In relation to the Hydrex situation, the statutory protection against liability in tort regarding acts done “in contemplation or furtherance of a trade dispute” (section 219 of the 1992 Act) is confined, by section 244 of the same Act, to “a dispute between workers and their employer”. Secondary action is expressly excluded from statutory protection by section 224 of the Act, which defines it as follows: “(2) There is secondary action in relation to a trade dispute when, and only when, a person— (a) induces another to break a contract of employment or interferes or induces another to interfere with its performance, or (b) threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance, and the employer under the contract of employment is not the employer party to the dispute.” The provisions on peaceful picketing are contained in section 220 of the Act, which provides: “(1) It is lawful for a person in contemplation or furtherance of a trade dispute to attend— (a) at or near his own place of work, or (b) if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working. (2) If a person works or normally works— (a) otherwise than at any one place, or (b) at a place the location of which is such that attendance there for a purpose mentioned in subsection (1) is impracticable, his place of work for the purposes of that subsection shall be any premises of his employer from which he works or from which his work is administered.” 20. Both parties referred to the previous legislative regime, which included secondary action in the scope of the statutory protection. The Government explained that secondary action was first outlawed by the Trade Disputes and Trade Unions Act 1927, adopted in the aftermath of the general strike of 1926. The situation changed with the Trade Disputes and Trade Unions Act 1946, which lifted the ban. 21. Further reforms occurred in the 1970s. The Trade Union and Labour Relations Act 1974 afforded substantially broader protection to industrial action than is the case at present. It provided at section 13(1) (as amended in 1976): “An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on the ground only— (a) that it induces another person to break a contract or interferes or induces any other person to interfere with its performance; or . (b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or to interfere with its performance.” 22. This provision was considered by the House of Lords in the case of Express Newspapers Ltd v. McShane and another ([1980] AC 672). The case involved secondary action in the newspaper industry, led by the National Union of Journalists. The majority of the House held that the test to be applied to determine whether an act enjoyed the protection of section 13(1) was a subjective one, that is to say, it was sufficient that the person honestly believed that the act in question might further the cause of those taking part in the dispute. The genuineness of such belief could be tested by the courts, but the person calling the strike did not need to prove that it was reasonably capable of achieving the objective. Lord Wilberforce dissented on the nature of the test, but concurred with the finding that the injunction granted against the union should be discharged. 23. Although the applicant union maintained that the McShane judgment was not a significant development in the law, in that it merely confirmed the interpretation of clear statutory language, the case was referred to during the parliamentary debates leading to the passage of the Employment Act 1980 as one of the reasons for introducing restrictions on secondary action (in section 17 of that Act). The 1980 Act retained immunity for secondary action provided that three conditions were satisfied: (i) that it was taken against first suppliers or customers of the employer in dispute or against associated employers of the employer which were substituting for it during the dispute; (ii) that its principal purpose was to directly prevent or disrupt the supply of goods or services between the employer in dispute and his supplier or customer during the dispute; and (iii) that it was likely to achieve that purpose. 24. The current rule was originally introduced by the Employment Act 1990, and then re-enacted in the 1992 Act in the terms set out above. 25. The parties provided statistical information on the number of days lost to industrial action in the United Kingdom, going back to the 1970s. The Government pointed out that in that decade, the average number of days lost each year was 12.9 million. This decreased in the 1980s to an average of 7.2 million days. From the early 1990s to the present day, the figure is much lower, standing at 700,000 days lost per year on average. They attributed part of this decline at least to the ban on secondary action. The applicant union disputed that interpretation. It noted that the available statistics did not distinguish between primary and secondary strikes. It was therefore impossible to identify the true extent of secondary action before 1980 and, consequently, impossible to ascertain the impact of the restrictions introduced in 1980 and 1990. In the applicant union’s view, secondary action had been relatively rare, the overwhelming majority of strikes at that time had been primary strikes. It referred to official figures (contained in a Government publication, the “Employment Gazette”) indicating that, since the 1960s, the United Kingdom was consistently close to the European average for days lost to industrial action. According to this source, the country had been middle-ranking since the end of the 1970s. The only exception was for 1984, on account of the long and widespread strike in the mining industry that year. The Government submitted that the comparative statistics needed to be interpreted with caution, given the profound transformation of Europe over the past twenty years. The fact that the United Kingdom remained close to the European average in this regard indicated that, contrary to the applicant union’s point of view, the rules on industrial action were not so restrictive as to make it excessively difficult to organise strikes. 26. In support of its application, the applicant union included references to other international legal instruments, and the interpretation given to them by the competent organs. The most relevant and detailed of these materials are referred to below. 27. While there is no provision in the Conventions adopted by the International Labour Organization (ILO) expressly conferring a right to strike, both the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations (“the Committee of Experts”) have progressively developed a number of principles on the right to strike, based on Articles 3 and 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (summarised in “Giving globalization a human face”, International Labour Office, 2012, § 117). This Convention was ratified by the United Kingdom on 27 June 1949. 28. The Committee of Experts has commented several times upon the notice requirements for industrial action in the United Kingdom. The applicant union referred to the following statement, adopted in 2008: “In its previous comments, the Committee had taken note of comments made by the TUC to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee notes that according to the Government, a number of measures have already been taken to simplify sections 226-235 of the TULRA and 104-109 of the 1995 Order; moreover, as part of a plan published in December 2006 to simplify aspects of employment law, the Government explicitly invited trade unions to come forward with their ideas to simplify trade union law further. Since then, the Government has held discussions with the TUC to examine their ideas to simplify aspects of the law on industrial action ballots and notices. These discussions are ongoing. The Committee notes that in its latest comments, the TUC notes that there has been no progress in this reform. The Committee requests the Government to indicate in its next report progress made in this regard.” 29. More recently, in a direct request to the Government of the United Kingdom, the Committee of Experts stated: “In its previous comments, the Committee had taken note of comments made by the Trade Union Congress (TUC) to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee requested the Government to continue to provide information on any developments, as well as any relevant statistics or reports on the practical application and effect of these requirements. The Committee notes the Government’s indication that the Court of Appeal decision in RMT v. Serco and in ASLEF v. London Midland (2011) EWCA 226, overturned injunctions which had been obtained by Serco and London Midland Railway against the two main national transport unions, the RMT and ASLEF. In both cases, the injunctions had been obtained on the basis of the unions’ breaches of statutory balloting and notification procedures. This case was the latest in a series of cases assessing the extent of unions’ technical obligations to ensure that a fair balloting process had taken place. In the RMT v. Serco decision, the Court of Appeal issued some key clarification so that in future it is likely to be more difficult for employers to obtain injunctions to prevent strike action as a result of breaches of the balloting and notice requirements. A Court of Appeal decision is binding on all lower courts. Subsequent to this case, in Balfour Beatty v. Unite (2012) EWHC 267 (QB), the Court found against Balfour Beatty, taking account of the Serco case and the need to strike a balance between striving for democratic legitimacy and imposing unrealistic burdens on unions and their officers. The Committee notes the TUC’s observation that, while it greatly welcomes both decisions, it considers that they do not fully address the problems arising under the legislation that it has identified and that the legislation continues to impose intolerable demands on trade unions. The Committee notes these developments with interest and requests the Government to provide its comments on the concerns raised by the TUC.” 30. The Committee of Experts has taken the following view (see “Giving globalization a human face”, § 125): “With regard to so-called ‘sympathy’ strikes, the Committee considers that a general prohibition of this form of strike action could lead to abuse, particularly in the context of globalization characterized by increasing interdependence and the internationalization of production, and that workers should be able to take such action, provided that the initial strike they are supporting is itself lawful.” 31. The Committee on Freedom of Association also considers this form of industrial action to be protected by international labour law (see “Freedom of Association”, Digest of the decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth (revised) edition, International Labour Office, 2006): “534. A general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful. ... 538. A ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association.” 32. In its consideration of the United Kingdom’s observance of Convention No. 87, the Committee of Experts has repeatedly criticised the fact that secondary strikes are illegal. The initial criticism was included in its 1989 observation concerning the United Kingdom: “The Committee notes that the common law renders virtually all forms of strikes or other industrial action unlawful as a matter of civil law. This means that workers and unions who engage in such action are liable to be sued for damages by employers (or other parties) who suffer loss as a consequence, and (more importantly in practical terms) may be restrained from committing unlawful acts by means of injunctions (issued on both an interlocutory and a permanent basis). It appears to the Committee that unrestricted access to such remedies would deny workers the right to take strikes or other industrial action in order to protect and to promote their economic and social interests. It is most important, therefore, that workers and unions should have some measure of protection against civil liability. There has been legislative recognition of this imperative since 1906 in the form of a series of ‘immunities’ (or, more accurately, ‘protections’) against tort action for trade unions and their members and officials. The current version of the ‘immunities’ is to be found in the Trade Union and Labour Relations Act 1974. The scope of these protections has been narrowed in a number of respects since 1980. The Committee notes, for example, that section 15 of the 1974 Act has been amended so as to limit the right to picket to a worker’s own place of work or, in the case of a trade union official, the place of work of the relevant membership, whilst section 17 of the 1980 Act removes protection from ‘secondary action’ in the sense of action directed against an employer who is not directly a party to a given trade dispute. In addition, the definition of ‘trade dispute’ in section 29 of the 1974 Act has been narrowed so as to encompass only disputes between workers and their own employer, rather than disputes between ‘employers and workers’ or ‘workers and workers’ as was formerly the case. Taken together, these changes appear to make it virtually impossible for workers and unions lawfully to engage in any form of boycott activity, or ‘sympathetic’ action against parties not directly involved in a given dispute. The Committee has never expressed any decided view on the use of boycotts as an exercise of the right to strike. However, it appears to the Committee that where a boycott relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves, then that boycott should be regarded as a legitimate exercise of the right to strike. This is clearly consistent with the approach the Committee has adopted in relation to ‘sympathy strikes’: It would appear that more frequent recourse is being had to this form of action (i.e. sympathy strikes) because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. The Committee considers that a general prohibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful.” 33. It appears that the Committee of Experts did not take a definitive position on the ban until its 1995 observation concerning the United Kingdom, when it observed as follows: “The Committee draws the Government’s attention to paragraph 168 of its 1994 General Survey on Freedom of Association and Collective Bargaining where it indicates that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful. The lifting of immunity opens such industrial action to be actionable in tort and therefore would constitute a serious impediment to the workers’ right to carry out sympathy strikes.” It has maintained this view since, stating in its most recent review of the situation (2012 observation, see Report of the Committee of Experts to the International Labour Conference, 102nd Session, 2013, ILC.102/III(1A), pp. 195-96).): “Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). In its previous comments, the Committee had noted that according to the TUC, due to the decentralized nature of the industrial relations system, it was essential for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, transferring work, or hiving off companies. The Committee generally raised the need to protect the right of workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government indication that: (1) its position remains as set out in its report for 200608, that the rationale has not changed and that it therefore has no plans to change the law in this area; and (2) this issue forms part of a matter brought before the ECHR by the National Union of Rail, Maritime and Transport Workers (RMT) and that the Court has yet to consider the case. The Committee recalls the previous concern it raised that the globalization of the economy and the delocalization of work centres may have a severe impact on the right of workers’ organizations to organize their activities in a manner so as to defend effectively their members’ interests should lawful industrial action be too restrictively defined. In these circumstances, the Committee once again requests the Government to review sections 223 and 224 of the TULRA, in full consultation with the social partners, and to provide further information in its next report on the outcome of these consultations.” 34. The right to strike is protected by Article 6, paragraph 4, of the European Social Charter, which the United Kingdom ratified on 11 July 1962. It provides as follows: “With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake: ... [to] 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.” 35. The European Committee on Social Rights (ECSR) has examined the British rules on strike ballots and deemed them incompatible with the proper exercise of the right to strike. In its most recent assessment of the matter (Conclusions XIX-3, 2010) it stated: “The Committee considered in its previous conclusions ... that the requirement to give notice to an employer of a ballot on industrial action, in addition to the strike notice that must be issued before taking action, is excessive (even the simplified requirements introduced by the Employment Relations Act (ERA)2004). As there have been no changes to the situation, the Committee reiterates its finding that the situation is not in conformity with Article 6 § 4 of the Charter in this respect.” 36. Like the ILO Committee of Experts, the ECSR has consistently criticised the situation in the United Kingdom. In its first consideration of the matter (Conclusions XIII-1, 1993) it stated: “Referring to the report, the Committee noted the Government’s observations concerning the limitations on the right to strike, imposed by the 1990 Employment Act in respect of Great Britain. In particular, it noted that while the Government emphasised the importance of protecting the right of employers to dismiss those engaged in a strike, it also emphasised that the legislation continues to: (i) allow special protection for peaceful pickets at their own place of work; (ii) provide statutory immunity to peaceful and lawful pickets; (iii) provide statutory immunity for lawful trade disputes. The Committee also noted the recent observations of the ILO Committee of Experts recommending that the legislation be amended to conform with the principle of freedom of association in accordance with ILO Convention No. 87 (Freedom of Association and Protection of the Right to Organise, 1948). Having regard to this information and having noted that there is no immunity afforded individuals in respect of: – secondary industrial action other than inducement in the course of peaceful picketing; – industrial action organised in support of employees dismissed while taking part in unofficial action; the Committee reiterated its previous negative conclusion for the reasons cited in the twelfth cycle of supervision.” (Conclusions XIII-I, reference period 1990-1991).” 37. In the ECSR’s most recent pronouncement on the matter (Conclusions XIX-3, 2010) it said: “In its previous conclusions ... the Committee found that lawful collective action was limited to disputes between workers and their employer, thus preventing a union from taking action against the de facto employer if this was not the immediate employer. It furthermore noted that British courts excluded collective action concerning a future employer and future terms and conditions of employment in the context of a transfer of part of a business (University College London NHS Trust v. UNISON). The Committee therefore considered that the scope for workers to defend their interests through lawful collective action was excessively circumscribed in the United Kingdom. Given that there have been no changes to the situation, the Committee reiterates its finding that the situation is not in conformity with Article 6 § 4 of the Charter in this respect.” The relevant provisions are the following: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests. ...” “Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.” Article 28 appears in Title IV of the Charter. As regards the United Kingdom, reference must be made to Protocol (No 30) to the Treaty on the Functioning of the European Union. It provides, in so far as relevant: “... 2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.” 38. The parties provided some elements of comparative law in relation to secondary strikes. Both referred to a comparative study on the regulation of industrial action in Europe (Strike rules in the EU27 and beyond: A comparative overview, W. Warneck, European Trade Union Institute for Research, Education and Health and Safety (ETUI-REHS), 2007). According to this source, secondary action is protected or permitted, subject to varying restrictions and conditions, in the great majority of the member States of the European Union. The States that, like the United Kingdom, do not permit secondary action were identified as Austria, Luxembourg and the Netherlands. 39. In their initial submissions, the Government sought to draw support for the situation in the United Kingdom by reference to the situation in the following States: Spain, the Netherlands, Italy, Austria, Norway, Denmark and Germany. They contended that these illustrated a broad tendency in Europe to subject secondary action to much more restrictive conditions than primary industrial action. In reply to this the applicant union provided to the Court statements from labour-law experts in a number of European countries contradicting the Government’s remarks. The applicant union concluded that the United Kingdom is the most restrictive among the Contracting Parties to the Convention in this respect. The Government concluded that the material demonstrated that, notwithstanding the great variety of industrial-relations systems and traditions in Europe, most States distinguished between primary and secondary action, with greater restriction on the latter. The broad right claimed by the applicant union was not supported by any real European consensus. 40. The Court notes that comparative information is available from the monitoring mechanism of the European Social Charter. As indicated above, this body has repeatedly criticised the situation in the United Kingdom, which appears to be the only State subject to criticism on this specific ground. The ECSR has also commented in recent years on the lawfulness of secondary action (sometimes using the term “sympathy” or “solidarity” action) in the following States: Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, Germany, Malta, Norway, Portugal, Romania, the Slovak Republic, Spain and Sweden. With reference to the three other States identified in the Warneck study as not permitting secondary action, the Court notes that the ECSR has not criticised the situation in the Netherlands on this ground. Nor has it made any comment at all in relation to the situation in Austria or Luxembourg, neither State having accepted Article 6, paragraph 4, of the Social Charter. 41. Some further comparative information is available from the publications and legal databases of the ILO. For example, the Committee of Experts referred to the removal from the Turkish Constitution of the prohibition on solidarity strikes (“Giving globalization a human face”, § 125). It has also referred, in its review of State implementation of Convention No. 87, to the lawfulness of sympathy strikes in Albania, Georgia and Latvia. The Committee on Freedom of Association has referred to solidarity strike action in Hungary (complaint no. 2775), and noted that Russian law does not expressly provide for, or for that matter prohibit, such action (complaint no. 2251). Additionally, the Court notes that in Swiss law strikes are permitted if they “relate to employment relations” (Article 28 § 3 of the Constitution). According to one constitutional commentary, a strike must actually be about working conditions, and not pursue corporatist or political objectives outside of the enterprise or branch (Droit constitutionnel suisse, vol. II, Auer, Malinverni and Hottelier, p. 723). | 0 |
test | 001-169656 | ENG | ESP | COMMITTEE | 2,016 | CASE OF COMUNIDAD DE PROPRIETARIOS PANDO NÚMERO 20 v. SPAIN | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time) | Alena Poláčková;Helen Keller;Pere Pastor Vilanova | 4. The applicant is a community of owners of a building located in Madrid. 5. On 13 June 1991 L., the co-owner of a house located next to the applicant’s building, filed a complaint before the Madrid municipality, complaining that a dividing wall belonging to the applicant’s building and two other buildings located next to it was in poor condition. 6. On 25 April 1994, in view of the “serious risk of harm” posed by the poor condition of the wall, the municipality repaired it motu proprio. 7. On 30 August 1994 the applicant received a decree issued by the municipality on 29 July 1994, informing it that the repairs had been carried out in view of the “serious risk of harm” posed by the condition of wall in question, and ordering it to pay a provisional amount of 18,030.36 euros (EUR). 8. On 21 October 1994 the applicant initiated proceedings opposing the municipality’s demand, contesting the necessity of the urgent repairs. 9. On 29 October 1994, before the Madrid High Court of Justice, the applicant brought a first set of judicial administrative proceedings (recurso contencioso-administrativo) against the decree of 29 July 1994, complaining of the shortcomings of the procedure which had led to the municipality repairing the wall. 10. On 18 March 1996 the municipality asked the applicant to pay the remainder of the amount owed: the final cost of the repairs minus the amount already paid as a provisional amount. 11. On 16 July 1996, before the Madrid High Court of Justice, the applicant initiated a second set of judicial administrative proceedings (recurso contencioso-administrativo), contesting the amount of the requested payment and asking for a suspension of its obligation to pay that amount. 12. On 20 November 1996 the application to suspend its obligation to pay was rejected. That decision was confirmed by the Madrid High Court of Justice and the Supreme Court on 11 July 1997 and 23 February 2001 respectively. 13. On 6 March 1998 both sets of judicial administrative proceedings were joined. 14. On 9 December 2004 the Madrid High Court of Justice ruled against the applicant, on the grounds that the repairs had been carried out by the municipality in view of the poor condition of the wall and the “serious risk of harm” present at that time, which had given the municipality no other choice but to repair it and then ask the applicant for payment in respect of the costs incurred. The Madrid High Court of Justice also confirmed the amount set for the costs of the repairs. 15. On 3 March 2005 the applicant lodged a cassation appeal with the Supreme Court, which was declared inadmissible more than four years later on 29 May 2009. This decision was served on the applicant on 9 June 2009. 16. On 10 December 2009 the applicant lodged an amparo appeal with the Constitutional Court. 17. On 31 January 2010 the community of owners agreed to authorise Mr. García Caballero to act on its behalf in the framework of the judicial proceedings concerning the costs of the repairs to the wall. 18. By a decision of 28 April 2010 the Constitutional Court declared the amparo appeal inadmissible on the grounds that “the constitutional significance of the appeal had not been justified”. This decision was served on the applicant on 6 May 2010. | 1 |
test | 001-159207 | ENG | RUS | CHAMBER | 2,015 | CASE OF KHALVASH v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1954 and until his arrest lived in St Petersburg. He is currently serving his sentence in a correctional colony in the Arkhangelsk Region. 7. The applicant was arrested on 31 July 2010 on suspicion of aggravated kidnapping, extortion and conspiracy. He remained in detention throughout the investigation and trial. 8. On 22 June 2012 the Leningrad Regional Court found the applicant guilty as charged and sentenced him to nine years’ imprisonment in a highsecurity correctional colony with the release to be followed by a yearlong restriction of liberty. 9. On 8 November 2012 the Supreme Court of Russia upheld the conviction on appeal. 10. The parties provided the Court with the applicant’s medical documents, including his clinical records, discharge summaries, and expert opinions. 11. The medical records show that the applicant had a long history of cerebral diseases as a result of having sustained a head injury in 1997 that developed into traumatic cystic arachnoiditis. Two years later he underwent a tomography examination which confirmed the presence of a growing liquor cyst located in the right frontotemporal part of the brain. The cyst impacted on his acoustic and visual nerves. The examination also revealed moderate internal hydrocephalus. In the recommendations written on 11 May 2000, the applicant’s doctor noted that a nuclear magnetic resonance examination, an electroencephalography examination and a liquor analysis were required to properly diagnose the applicant’s condition. He further observed that, in the absence of any treatment, it would be reasonable to perform urgent cerebral bypass surgery in order to prevent the applicant from going irreversibly blind. Nothing in the medical documents submitted suggests that the applicant had had any recourse to specific medical assistance or examinations regarding his cerebral problems during the ten years preceding his arrest. 12. After the arrest the applicant was taken to temporary detention facility no. IZ-47/1 in St Petersburg (“facility no. IZ-47/1”). On admission to that facility the resident prison doctor performed a general medical check-up of the applicant, having noted in the medical file that he had a brain cyst. The doctor concluded that the applicant was “somatically healthy” and was therefore fit to remain in the conditions provided by the detention facility. 13. On 23 September and 26 October 2010 the applicant was seen by a neurologist. In the absence of any medical documents the prison doctor was only able to perform a visual examination of the applicant. He diagnosed the applicant with hydrocephalus and recommended that an X-ray examination of the skull be carried out to make the correct diagnosis. 14. In January 2011 the applicant’s medical file was supplemented with his old clinical records from a civilian hospital and the prison doctor examined him anew, paying regard to the additional medical information. He confirmed the diagnosis made in 2000 and recommended a consultation with an ophthalmologist. The applicant was prescribed drug therapy for a month. 15. An ophthalmologist diagnosed the applicant with angiopathy. 16. In February 2011 the applicant was diagnosed with tuberculosis. He was immediately transferred to prison hospital no. 2 in St Petersburg, where the disease was successfully treated. The applicant was discharged from hospital with the doctors’ attestation of his full recovery from the infection. 17. On 8 April 2011 the applicant was sent to Gaaza prison hospital in St Petersburg for an in-depth medical examination. He underwent a large variety of diagnostic procedures, including a magnetic resonance tomography of the brain and cervical vertebrae performed in a Russian civilian hospital, the Mariinskiy Hospital of St Petersburg. The tests showed that the applicant had a liquor cyst in the right frontotemporal part of the brain and that he suffered from vicarious hydrocephalus of mixed genesis and encephalopathy at the initial stage. In addition, doctors were able to establish that the applicant’s cervical vertebrae had several herniated disks and perineural cysts. 18. Following completion of the diagnostic cycle, the applicant was released from the hospital and sent back to the detention facility. Discharge summaries issued on 15 April 2011 contained a recommendation of supervision by a prison doctor and regular consultations with a neurologist. 19. In September 2011 the applicant complained about headaches to the attending prison doctor. In response it was recommended that he undergo an additional neurological medical examination in Gaaza prison hospital. However, the hospital refused to admit him because it did not employ a suitably qualified medical specialist, such as a brain surgeon. 20. In October 2011 the applicant’s lawyer contacted Dr K. from the neurosurgical department of the Scientific Research Institute for Emergency Treatment, who agreed to study the applicant’s clinical records and give his opinion about the state of the applicant’s health at a court hearing on 4 October 2011, where he saw the applicant for the first time. At the hearing the doctor stated that the computer tomography performed on the applicant in 2000 had indicated a brain oedema at the base of the skull. He insisted that any change of the applicant’s lifestyle could induce complications related to the brain oedema and also seizures. Surgery was required to treat the cyst. However, Dr K. concluded that the applicant’s spinal problems were even more serious, as they could leave the applicant entirely paralysed. Nevertheless, the doctor noted that surgery would be only required if the applicant’s health were to deteriorate. The doctor recommended chondroprotective therapy and cerebral bypass surgery for the applicant. He was also to wear a cervical collar. 21. The applicant also provided the Court with a certificate issued in November 2011 by Dr T., the head of the hospital where the applicant had received medical treatment in 1997-1998. Dr T. argued that the applicant’s condition called for permanent medical supervision by a neurologist and neurosurgeon so that the applicant could be subjected to urgent surgical intervention should the need arise. In Dr T.’s opinion, a detention facility was ill equipped to guarantee such supervision. The applicant also argued that his transfer to a northerly region in which to serve out his sentence had run contrary to the recommendations of his doctor and might have resulted in serious complications of his illness. Finally, he alleged that he lacked effective remedies whereby to complain about the poor quality of his medical treatment. 22. On 1 December 2011 in response to a request from the applicant’s lawyer, a medical expert commission assessed the applicant’s health and checked for the existence of medical grounds warranting his release from detention. The commission observed that the applicant had received outpatient treatment and that he had no focal brain injuries, epileptic seizures or significant limitations of his day-to-day activity. Taking account of the results of his dynamic medical examinations, the doctors concluded that the applicant was in satisfactory health and that there were no medical grounds warranting his release from detention. 23. On 5 April 2012 Dr K. visually examined the applicant. No recommendations were made. 24. On 4 December 2012 the applicant was examined by a neurologist to whom he complained about headaches, vomiting and vertigo. The doctor recommended drug therapy based on vasobral, piracetam, and vinpocetine. The following visit in January 2013 by the neurologist resulted in a modification of the drug regimen. 25. On 20 February 2013 a prison doctor approved the applicant’s transfer to a correctional colony, finding him fit to make the journey. 26. The applicant arrived on 4 March 2013 at correctional colony no. IK42/4 in the Astrakhan Region (“colony no. IK-42/4”), where he was seen by the colony doctor, who noted that the applicant had been suffering from brain cyst. At the end of April 2013 the doctor recommended the applicant’s transfer to a hospital for further assessment. No urgency was warranted. 27. On 25 July 2013 Dr K. drafted another report, assessing the applicant’s condition on the basis of his medical records and the results of his examination on 5 April 2012. Dr K. concluded that his recommendations had not been complied with and that the applicant’s cyst had increased. He stressed that the appropriate treatment could only be ensured in a specialised medical institution, not least because the requisite dynamic monitoring of the applicant’s condition using computer and magnetic resonance tomography examinations needed to be performed every eight months. Lastly, the doctor emphasised that the applicant’s detention in a northerly region could lead to a further deterioration in his health by inducing epileptic seizures and brain ischemia, thus putting his life at risk. 28. On 8 August 2013 the authorities transferred the applicant to a prison hospital in the Arkhangelsk Region. Following a number of tests, a medical panel declared that the applicant was not suffering from any disability. The applicant was discharged from the hospital with the recommendation that he be re-admitted for further treatment in June 2014. 29. The last two entries in the applicant’s clinical records are illegible. The parties did not provide the Court with any additional information on the state of his health. | 1 |
test | 001-152259 | ENG | HRV | CHAMBER | 2,015 | CASE OF M.S. v. CROATIA (No. 2) | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind) | Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1962 and lives in L. 6. For several years the applicant had been under the supervision of, and had been receiving various types of financial assistance amounting to some 600 Croatian kunas (HRK) per month from, a local social care centre. 7. In June 2008, the applicant’s family doctor submitted to the social care centre a report on her medical treatment, stating as follows: “With regard to your question concerning Ms M.S.’s state of health and treatment and my observations on her health problems ... I confirm that she has been my patient since March 2008. She is a person with polymorphic health issues, and, in terms of the somatic aspect of her state of health, abdominal sensations related to the gynaecological area (a gynaecologist has prescribed surgery, which the patient constantly refuses) and thereby related anaemia – of course, treated by an alternative therapy. Because of a number of other health issues (frequent headaches, lumbar pain) she has been sent for specialist examinations, which attested to a sufficiency of outpatient treatment, in the form of both medication and physiotherapy. Unfortunately, the patient has her own peculiar interpretation of her health issues, on which she insists, and therefore I consider that the best help for her would be psychological/psychiatric treatment. Of course, this requires her consent, which so far could not be obtained. The continuity of the treatment is additionally hampered by the patient’s change of her place of residence. Her visits to the doctor are random, and so are her wishes as to the scope and area of treatment. The particular difficulty in the medical treatment of Ms [M.]S. is related to her mental [state].” 8. On 26 June 2008 the social care centre instituted proceedings in the competent court for divesting the applicant of legal capacity, which was one of the issues giving rise to a case before the Court in M.S. v. Croatia (no. 36337/10, §§ 40-46, 25 April 2013). 9. Following an expert report of 19 August 2013 indicating that the applicant had been effectively engaged in psychiatric treatment, which had been progressing well, on 9 September 2013 the social care centre withdrew the request to divest her of legal capacity. 10. On 29 October 2012 the applicant went to see her family doctor complaining of severe lower-back pain. Her doctor, after having examined her, called the emergency health service and sent the applicant for some further medical checks. 11. The doctor who received the applicant in the emergency service found that her general condition was good, that she was conscious and well oriented, but that she had difficulty moving. The doctor made a working diagnosis of lumbago and sent the applicant for further medical checks by a neurologist. 12. The neurologist in the emergency service examined the applicant on the same day and found that the information she was giving was incoherent and disproportionate to her pain, and that she had not been taking her medication. He made a diagnosis of back pain and anxiety disorder, and sent the applicant for a further examination by a psychiatrist. 13. The applicant was then examined by a psychiatrist in the emergency service who after interviewing her found that she was making fanciful and confusing allegations of persecution by various doctors. The psychiatrist made a diagnosis of acute psychotic disorder, systemic delusional disorder and delusional dysmorphic disorder, and prescribed hospitalisation. 14. The applicant was immediately admitted to the psychiatric clinic of the R. Clinical Hospital Centre (Klinički bolnički centar R., Klinika za psihijatriju; hereinafter: “the hospital”), a public health-care institution. The relevant parts of the admission record, in so far as legible, indicate as follows: “Date of admission: 29.10.2012 Date and time of hospitalisation: 29.10.2012 ... Admission diagnosis: ... anxiety disorder ... Patient’s attitude towards the examination: refused examination by a psychiatrist; requested a somatic examination ... Psychological condition: conscious and well oriented, suspicious ... tense in the psychomotor sense ... distanced, cold, with ideas of ... persecution, control ... Neurological condition: syndrome of back pain ... Patient’s attitude towards the hospitalisation: refuses Consent: NO ... Physical intervention: physical restraint, tying to a bed ...” 15. In the evening of the same day, another doctor examined the applicant. The relevant part of the examination record reads: “The patient was hospitalised after an examination by Dr [T.]L., and after having been treated in the [emergency ward] for persistant severe back pain (documentation in attachment). She was brought on a stretcher, tied down, maintaining conscience and orientation, negative, arguing, yelling, agitated, affectively dissolute, with a mind-flow disorder, substantively paranoid ideas. ... Diagnosis: Acute psychotic disorder F 23.2 Delusional disorder ... Fixation. Th. according to the list.” 16. According to the applicant, following her admission to hospital she was tied to a bed with four belts tightened around her ankles and wrists, and forcefully injected with a strong drug. She was kept in that position throughout the night and felt severe pain in her back. Her left leg was restrained in such a position that the belts caused her additional pain. The room was small and had no windows. The following morning the belts were removed and she was taken to another room in the psychiatric hospital. 17. According to the Government, following the applicant’s admission to hospital she was given the usual treatment for patients in a state of psychotic agitation and was then placed in an isolation room. The room had a direct connection with the adjacent staff room and was under constant video surveillance. The room measured 2.50 by 2.12 metres and the height of the ceiling was 3.15 metres. It was equipped only with one bed. It had a heating and air-conditioning system, as well as access to sanitary facilities. The belts used to restrain the applicant to the bed were specially adapted so as to avoid any injuries. 18. The Government further explained that the applicant had been tied to the bed in the isolation room from the time of her admission to hospital at 8.50 p.m. on 29 October 2012 until the next morning. She was then taken to a regular hospital room where she was again restrained until 12 noon. During that time her condition and all her needs were regularly monitored. After the initial period following the applicant’s admission to hospital until her release, she was not restrained again. 19. The available medical records concerning the physical restraint used on the applicant in the hospital show that this method was used in the period between 8.50 p.m. on 29 October 2012 until around 12 noon on 30 October 2012. The relevant medical record monitoring the applicant’s physical restraining, in so far as legible, reads as follows: “29/30.10 brought by [the emergency service] on a stretcher ... upon admission screaming, restive, kicking came [to the emergency service] because of back pain taken to the isolation box (hands and legs fixed), screaming, threatening, restive ... psychotic, paranoid [ideas] drunk water complains of lower back pain did not sleep well during the night, called [for assistance], drunk water (approximately one litre) ... manipulative did not sign the consent to hospitalisation, ... 30.10.2012 morning hygiene performed in the box ... around 12 p.m. taken to the intensive care ward ... complains of back pain, unaware of her condition, paranoid ...” 20. On 30 October 2012 the hospital informed the R. County Court (Županijski sud u R.) that the applicant had been involuntarily admitted for treatment on 29 October 2012, that she had refused further hospitalisation and that her mental condition prevented her from making a sound decision in that respect. 21. On the same day the R. County Court instituted proceedings for the applicant’s involuntary retention and appointed a legal-aid lawyer, P.R., to represent her. 22. On 31 October 2012 the judge conducting the proceedings visited the applicant in the hospital. The record of the visit in its entirety reads: “[Number of the case file] | 1 |
test | 001-174385 | ENG | RUS | COMMITTEE | 2,017 | CASE OF VOLKOVA v. RUSSIA | 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 5-4 - Speediness of review);Violation of Article 6 - Right to a fair trial (Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicant was born in 1987 and lived in Voronezh prior to her arrest. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 14 July 2007 the applicant, together with B., travelled to Moscow by car. At about 3.40 a.m. the police stopped the car; two men from the narcotics unit approached the car and asked the passengers to step out and produce their identity documents and luggage for inspection. An officer opened the sports bag which, according to the applicant, her friend had asked her to take to another friend in Moscow, and found a black plastic bag. The applicant stated that she was not aware of its contents. The officers then put the black bag into the trunk of the police car and took the applicant and B. to the premises of the narcotics unit. 7. The applicant and B. were interviewed in separate rooms. In the morning the applicant was taken to another office, in which one female officer, a forensics expert and two individuals who were introduced as “attesting witnesses” (понятые) were present. The applicant was told to open the black bag and to show its contents. Four plastic bags containing yellow and green herb and cash money were found inside. At 8.15 a.m. the police drafted a report on the seizure of objects and substances. The expert later determined that the herb was marijuana having a total weight of almost three kilograms. 8. At 6 p.m. a senior investigator of the narcotics unit instituted criminal proceedings against the applicant and B. on suspicion of attempted largescale sale of drugs. 9. At 8.15 p.m. the investigator compiled the record of the applicant’s arrest. The time of arrest was given as 7.50 p.m. on 14 July 2007. 10. On 15 July 2007 the applicant was formally charged and the investigator applied to a court for a detention order. 11. The detention hearing before the Zyuzinskiy District Court in Moscow began at 7.15 p.m. on 16 July 2007. Counsel for the applicant submitted that, in view of the actual time of the applicant’s detention, the maximum statutory period of forty-eight hours had already expired. However, the court did not heed that argument and ordered that the applicant be remanded in custody because the gravity of charges against her. 12. On 19 July 2007 counsel for the applicant filed an appeal. On 25 July 2007 copies of the appeal were forwarded to the applicant and to the prosecutor for comments. The appeal hearing was initially scheduled for 22 August 2007 but subsequently adjourned for one week because one of the applicant’s representatives did not show up. 13. On 27 August 2007 the City Court rejected the appeal against the detention order in a summary fashion, noting that “the pre-trial investigation authorities did not commit any substantial breaches of the rules of criminal procedure”. 14. The case against the applicant was referred for trial to the Babushkinskiy District Court in Moscow. 15. The defence claimed that the attesting witnesses who had been present during the opening of the bag were in fact employees of the narcotics unit rather than independent observers as required by law. Both of those witnesses – Ms P. and Ms A. – did not appear before the trial court. Instead, a court bailiff submitted reports about his unsuccessful attempts to ensure their attendance. The reports contained the same text to the effect that the witnesses could not be reached on the phone, that no one opened the door at their residence and that neighbours had told the bailiff that they had not seen them for a long time. 16. Counsel for the applicant requested the court to obtain the visitors journal from the reception of the narcotics unit. Since the unit was located within a security perimeter, all civilian visitors were to be recorded in the journal. The trial court refused the motion, without giving any reasons. It further held that there existed “exceptional circumstances” for the absence of the witnesses Ms P. and Ms A. and allowed their pre-trial statements to be read out, overriding the objections from the defence. 17. The trial court also authorised the reading-out of the pre-trial statement of Mr F., the driver of the car, of which the applicant and B. had been passengers. The bailiff submitted similarly worded reports to the effect that Mr F. was unavailable on the telephone or at his residence. 18. By judgment of 8 April 2008, the District Court found the applicant and B. guilty as charged and sentenced each of them to eight years’ imprisonment in a high-security correctional colony. It held in particular that the applicant’s claim that she did not know she was carrying marijuana in her friend’s bag was refuted by the seizure report of 14 July 2007 and the statements by the witnesses Ms P. and Ms A. 19. On 28 July 2008 the Moscow City Court examined and rejected her appeal against the conviction. | 1 |
test | 001-164661 | ENG | RUS | COMMITTEE | 2,016 | CASE OF KOLKUTIN v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Alena Poláčková;Helen Keller;Johannes Silvis | 4. The applicant was born in 1962 and lives in Chita. 5. On 2 September 2004 the applicant was arrested on the charges of fraud and forgery of official documents. On 4 September 2004 the Tsentralnyy District Court of Chita authorised the applicant’s pre-trial detention. The court reasoned as follows: “The evidence collected ... incriminated [the applicant] ... in a serious crime which entails a custodial sentence exceeding ten years. ... The court takes note of the [applicant’s] character. However, ... it considers that, if at large, [the applicant] might put pressure on victims and witnesses or otherwise interfere with administration of justice or continue criminal activities, Accordingly, ... the court considers it necessary to remand [the applicant] in custody.” 6. On 11 November 2004 the Chita Regional Court upheld the decision of 2 September 2004 on appeal. 7. The applicant remained in custody pending investigation and trial. The court extended his pre-trial detention on several occasions reiterating, in substance, the reasoning employed by the District Court on 2 September 2004. 8. On 4 June 2007 the District Court found the applicant guilty as charged and sentenced him to eight years’ imprisonment. | 1 |
test | 001-147040 | ENG | RUS | COMMITTEE | 2,014 | CASE OF ISTRATOV v. RUSSIA | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Dmitry Dedov;Erik Møse;Khanlar Hajiyev | 4. The applicant was born in 1982 and lived in Novocheboksarsk before the arrest. 5. On 20 November 2008 the applicant was remanded in custody on suspicion of rape. 6. Between 22 November 2008 and 7 September 2009 the applicant was held in remand prison IZ-77/3 in Moscow. The parties submitted differing information about the material conditions of his detention. 7. The applicant claimed that the facility was overcrowded. Cell 517, in which he stayed throughout his detention, measured 24 sq. m and accommodated up to twelve inmates. Walls were mouldy and the lavatory pan was not separated from the rest of the cell. Ventilation did not function; no toiletries were distributed and the bedding was ragged. The food was of low quality. The detainees were allowed to take a shower only once per week. In support of his allegations, the applicant submitted two identicallyworded statements by his cellmates, who – without further detail – declared that they “fully support[ed] Mr Istratov’s complaint to the European Court”. 8. The Government submitted a number of certificates issued by the director of remand prison IZ-77/3 on 18 June 2012, which demonstrated that the applicant was held in four cells having the following characteristics: cell 608, which measured 34.11 sq. m, was equipped with 8 sleeping places and actually hosted between 5 and 8 inmates; cell 207, which measured 32.17 sq. m, was equipped with 8 sleeping places and accomodated between 6 and 8 detainees; cell 517, which measured 37.07 sq. m, was equipped with 9 sleeping places and hosted between 6 and 9 inmates; cell 510, which measured 13.22 sq. m, was equipped with 2 sleeping places and held the same number of detainees. It follows from the certificates that the applicant was provided with bedding and toiletries and afforded daily one-hour-long outdoor exercise, a weekly shower and access to washing facilities. There was forced ventilation and artificial lighting in the cells. In addition, the windows were not covered by shutters, allowing natural light to penetrate into the cells, and were equipped with a small opening pane that provided access to fresh air. Lavatory pans were separated from the rest of the cells by a brick partition and were located two metres away from dining tables. In addition, all four cells were equipped with a water tap with hot and cold running water. Heating was provided during the winter season. 9. The Governement also submitted copies of the prison population register which covered two weeks out of each month during the period of the applicant’s detention and presented the following information about the numbers of sleeping places in the cells and their actual occupancy: cell 608 was equipped with 8 sleeping places and held a maximum of 6 detainees; cell 207 was equipped with 14 sleeping places and held between 4 and 8 inmates; cell 517 was equipped with 5 sleeping places and held a maximum of 5 detainees; cell 510 was equipped with 3 sleeping places and held 2 inmates. 10. It appears that the applicant complained to the Moscow city prosecutor about the conditions of his detention. In his reply of 14 December 2010 the prosecutor acknowledged that “not every detainee was afforded the [statutory] standard of four square metres due to overpopulation of the prison”. 11. Some time later the applicant brought a civil claim for compensation in connection with inadequate conditions of detention in remand prison IZ77/3. On 7 June 2012, the Khoroshevskiy District Court of Moscow examined the claim and held that: “According to a prison population certificate issued by the director of remand prison IZ-3 of Moscow, cell 608 measures 34.02 sq. m and is equipped with 12 sleeping places. Cell 207 measures 31.17 sq. m and is equipped with 14 sleeping places. Cell 517 measures 37.75 sq. m and is equipped with 12 sleeping places and cell 510 measures 13.45 sq. m and is equipped with 4 sleeping places. It follows from the case file that Mr Istratov was always provided with a separate sleeping place and that the number of detainees never exceeded that of sleeping places. ... It was established ... that the applicant’s argument about the overpopulation of the cells he had been held in, [affording as a result] less than 4 sq. m per person, had been substantiated. However, considering that Mr Istratov did not complain that he had been afforded personal space below the sanitary standard (4 sq. m) ... and was always provided with a separate sleeping place ... the court considers it appropriate to reject Mr Istratov’s claim.” 12. On 12 May 2009 the Khoroshevskiy District Court of Moscow found the applicant guilty and gave him a custodial sentence. The applicant appealed, complaining about an erroneous interpretation of law and improper assessment of evidence by the District Court. 13. On 12 August 2009 the Moscow City Court upheld the conviction on appeal. | 1 |
test | 001-164921 | ENG | HRV | COMMITTEE | 2,016 | CASE OF MEČIĆ v. CROATIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Jon Fridrik Kjølbro;Paul Lemmens;Ksenija Turković | 5. The applicant was born in 1974 and lives in Vinkovci. 6. By a judgment of 1 June 2006 the Vinkovci Municipal Court (Općinski sud u Vinkovcima) ordered the applicant’s former employer, the company MD Profil d.o.o. (hereinafter “the debtor company”), to pay him 20,921.18 Croatian kunas (HRK) as remuneration for overtime work, together with accrued statutory default interest, and HRK 19,495.90 in costs. On 10 March 2008 the Vukovar County Court (Županijski sud u Vukovaru) upheld the first-instance court’s judgment, which thereby became final. 7. By a judgment of 17 January 2008 the Županja Municipal Court (Općinski sud u Županji) found the applicant guilty of the criminal offence of embezzlement committed against his former employer, the debtor company. It sentenced him to ten months’ imprisonment, suspended for a period of two years provided that in that period he did not commit a further offence. The court also ordered the applicant to pay the debtor company HRK 20,311.78 in compensation for pecuniary damage caused by his offence. 8. On 14 April 2008 the applicant applied to the Đakovo Municipal Court (Općinski sud u Đakovu) for enforcement of the above judgment of 1 June 2006 (see paragraph 6 above). 9. The next day, on 15 April 2008, that court issued a writ of execution (rješenje o ovrsi) whereby it ordered the seizure of funds in the debtor company’s bank account in order to satisfy the applicant’s claim. 10. The debtor company lodged an appeal, and on 28 August 2008 the Osijek County Court (Županijski sud u Osijeku) quashed the writ of execution and remitted the case to the first-instance court. It found that the judgment sought to be enforced had not been stamped with a certificate of enforceability and that a grace period for voluntary compliance (paricijski rok) had not been set. 11. In the new proceedings before the Đakovo Municipal Court the applicant submitted on 25 September 2008 a copy of the judgment that he was seeking to enforce stamped with a certificate of enforceability. At the same time, he asked the court to set a grace period for voluntary compliance, pursuant to the law. 12. On 7 November 2008 the court issued a new writ of execution. It ordered the debtor company to pay the applicant, within a grace period of eight days (a) the sums it had been ordered to pay under the judgment of 1 June 2006 (that is to say the main debt, together with accrued statutory default interest, and the costs of the civil proceedings, see paragraph 6 above), (b) the statutory default interest accrued on the costs of the civil proceedings from the date of delivery of that judgment, and (c) the costs of enforcement proceedings, together with the statutory default interest accrued on those costs from the date of issuance of the writ of execution. 13. By a decision of 19 February 2009 the Osijek County Court dismissed the debtor company’s appeal and upheld the writ of execution. 14. Upon receiving, on 27 February 2009, the final judgment of the criminal court of 17 January 2008 (see paragraph 7 above), the debtor company on 9 March 2009 sent a letter containing a set-off statement to the applicant’s legal representative whereby it set off (prijeboj) its claim for compensation against the applicant stemming from that judgment with his claim for payment of overtime work against the debtor company stemming from the judgment he was seeking to enforce. 15. On the same day, 9 March 2009, the debtor company informed the court that it had received the above-mentioned final judgment of the criminal court and that it had executed the set-off described above (see the preceding paragraph). The debtor company at the same time lodged an extraordinary appeal against the writ of execution of 7 November 2008 (see paragraph 12 above) and lodged an application to postpone the enforcement. 16. By a decision of 27 March 2009 the Đakovo Municipal Court decided on the debtor company’s motion for postponement, instructing the debtor company to institute separate civil proceedings for the enforcement to be declared inadmissible (in full or in part). At the same time it postponed the enforcement pending the final outcome of those proceedings. 17. The debtor company instituted those civil proceedings on 14 April 2009. They ended on 31 March 2011, when the Osijek County Court upheld the first-instance judgment of the Đakovo Municipal Court of 21 October 2010, whereby the enforcement of up to HRK 20,095.30 was declared inadmissible. The second-instance judgment was served on the debtor company on 11 May 2011 and on the applicant a day later. 18. Following an appeal lodged by the applicant, on 21 January 2010 the Osijek County Court quashed the first-instance decision of 27 March 2009 (see paragraph 16 above) in so far as it allowed the postponement of the enforcement and in this respect remitted the case. It dismissed the remainder of the applicant’s appeal and upheld the first-instance decision in the remaining part. 19. In the resumed proceedings, by a decision of 17 June 2010 the Đakovo Municipal Court again postponed the enforcement. 20. On 3 February 2011 the Osijek County Court dismissed the applicant’s appeal against that decision and upheld it. 21. On 24 May 2011 the applicant informed the Đakovo Municipal Court that the judgment declaring the enforcement inadmissible in part had become final (see paragraph 17 above) and asked it to continue with the enforcement in the remaining part. 22. By a decision of 2 June 2011 that court decided to resume the enforcement in the remaining part. By another decision of the same date that court ordered the debtor company to pay the applicant: (a) HRK 599.40 for unpaid overtime work, together with statutory default interest accrued since 11 March 2009, (b) HRK 19,495.90 in costs of civil proceedings, together with statutory default interest accrued since 1 June 2006, and (c) HRK 2,606.25 in costs of enforcement proceedings, together with statutory default interest accrued since 7 November 2008. This decision became final on 17 June 2011. 23. On 20 June 2011 the court informed the Domestic Payments Agency (Financijska agencija – FINA) of its second decision of 2 June 2011 (see the preceding paragraph). In the execution of that decision the agency on 21 July 2011 transferred HRK 38,306.87 from the debtor company’s bank account to those of the applicant and his legal representative. 24. Meanwhile, on 9 October 2009 the applicant lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Osijek County Court, complaining about the length of the above enforcement proceedings. 25. By a decision of 9 November 2010 the Osijek County Court dismissed the applicant’s request. It held that, while the case was indeed important for the applicant, the proceedings complained of were complex and he had contributed to their length in that he had not initially submitted a copy of the judgment he was seeking to enforce stamped with a certificate of enforceability (see paragraphs 8-11 above). 26. On 25 November 2010 the applicant appealed against that decision. 27. By a decision of 6 June 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s appeal and served its decision on his representative on 26 August 2011. 28. On 23 September 2011 the applicant lodged a constitutional complaint against the second-instance decision. 29. By a decision of 12 December 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint and served that decision on his representative on 31 December 2012. It held that the contested second-instance decision was not open to constitutional review. | 1 |
test | 001-159926 | ENG | HUN | CHAMBER | 2,016 | CASE OF MIRACLE EUROPE KFT v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Tribunal established by law) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant is a limited liability company registered under Hungarian law, with its seat in Budapest. 6. In a dispute concerning a construction project envisaged in public procurement, in January 2012 the applicant company brought an action in damages against a university. 7. The President of the territorially competent Budapest High Court requested the National Judicial Office (“NJO”) to reassign the case to another court of the same jurisdictional level. In the request the President provided particulars about the case to be reassigned and indicated the data and the circumstances which prevented the adjudication, within a reasonable time, of this case, deemed to be of high importance, by relying on, in particular, the case-load of judges hearing civil cases, significantly exceeding the national average. 8. The President of the NJO examined the case-load statistics of the Budapest High Court, including the volume of highly important and priority cases and the workload of judges hearing civil cases. She found that, in view of the short statutory time-limits, the adjudication of the case within a reasonable time could only be ensured by reassigning the case to another court. 9. By requesting information from the President of the Zalaegerszeg High Court, the President of the NJO also examined the case-load and the operational conditions, including staff and facilities, of the Civil Division of the Zalaegerszeg High Court. On the basis of this information, the President of the NJO was satisfied that the reassignment of the case to the Zalaegerszeg High Court would not impose a disproportionate burden on that court. 10. For the sake of judicial economy as appreciated above, on 16 February 2012 the President of the NJO case assigned the case to the Zalaegerszeg High Court (decision no. 29/2012. (II.16.) OBHE), acting within the powers conferred upon her by the law. 11. The Zalaegerszeg High Court heard the case and dismissed the claim on 5 June 2012. That decision was confirmed by the Pécs Court of Appeal on 18 September 2012, a ruling served on 12 October 2012. The latter’s territorial competence to hear the appeal was a consequence of the case having been assigned to the Zalaegerszeg High Court. 12. Meanwhile, on 17 September 2012 the National Judicial Council issued decision no. 58/2012 on “the guidelines to be observed in respect of case reassignment”. 13. On 7 September 2013 the Kúria upheld the decisions of the High Court and the Court of Appeal in review proceedings. The courts held in essence that the applicant company’s perception according to which the university had unlawfully backed out of the investment contract (namely, the construction of a dormitory) was nothing more than a misconception of the law and a tendentious interpretation of the circumstances, and that the facts of the case did not reveal any compensation liability on the respondent’s side, for want of unlawfulness. 14. Meanwhile, on 13 December 2012 the applicant filed a constitutional complaint. It counted – and complied with – the statutory sixty-day time-limit to do so from the service of the final decision in the case, i.e. from 12 October 2012. It claimed firstly that the domestic courts had reached their decisions in an arbitrary manner and, secondly, that it was deprived of a “tribunal established by law”, since by decision no. 29/2012. (II.16.) OBHE the President of the NJO had reassigned the case from the originally competent court to the Zalaegerszeg High Court. 15. The constitutional complaint was declared inadmissible on 10 June 2013 (decision no. 3123/2013. (VI. 24.) AB). The Constitutional Court held that the case as a whole did not reveal any arbitrariness or unfairness as such. As regards the specific complaint about the reassignment, it held that this issue was severable from the main procedure. It was of the view that the sixty-day statutory time-limit had run, in that respect, from the very reassignment decision of 16 February 2012 – rather than from 12 October 2012 as construed by the applicant – and for that reason this part of the motion was time-barred. 16. On 2 December 2013 the Constitutional Court adopted decision no. 36/2013. (XII.5.) AB in the matter of reassignment, in pursuit of constitutional complaints originating in cases other than that of the applicant. It held that the regulations which entitled the President of the NJO to reassign cases among courts (notably, sections 62 and 63 of Act no. CLXI of 2011 on the Organisation and Administration of Courts, as in force between 1 January and 16 July 2012, see paragraph 20 below) had been unconstitutional and in violation of Article 6 of the Convention. According to the Constitutional Court, the right for one’s “natural” (lawful) judge flows from the right to have one’s case examined by a court “established by law” and requires that a case be heard by a judge belonging to the court with competence and territorial jurisdiction and designated by the pre-established objective rules of case assignment of that court. In the Constitutional Court’s view, the impugned regulations, which had conferred responsibility for the reassignment of cases, at least in the material period, entirely on the President of the NJO, had been in breach of those principles. Moreover, it had violated the requirement of the appearance of impartiality. The Constitutional Court also held that the lack of a remedy against the decision of the President of the NJO had violated the Fundamental Law, as well as Article 13 of the Convention. The Constitutional Court did not prescribe any particular legal consequence of this decision for the ongoing procedures concerned by re-assignment. Consequently, the Constitutional Court’s decision did not invalidate any reassignment decisions taken previously (see paragraphs 19 and 24 below). | 1 |
test | 001-168856 | ENG | RUS | COMMITTEE | 2,016 | CASE OF CHERNYKH v. RUSSIA | 4 | Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 3. The relevant details of the application are set out in the appended table. 4. The applicant complained of the inadequate conditions of his detention. He also raised a complaint under Article 13 of the Convention. | 1 |
test | 001-174062 | ENG | RUS | COMMITTEE | 2,017 | CASE OF YUGAY v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicant was born in 1985 and lives in Perm. 5. On 22 April 2008 the applicant was arrested on suspicion of drug dealing and was placed in pre-trial detention on the ground that he was suspected of committing a serious offence, was a foreign national, had no permanent place of residence in Perm, no job, no income, he could abscond and commit crimes. 6. On 18 June 2008 the Permskiy District Court of the Perm Region extended his pre-trial detention on the same grounds. 7. On 5 August 2008 the Permskiy District Court issued the first conviction which was quashed by the Perm Regional Court on 14 October 2008. The court held that the applicant should remain in detention without indicating any reasons. 8. By decisions of 1 November 2008 and 18 March 2009, as upheld on appeal, the Permskiy District Court extended the applicant’s pre-trial detention reiterating its earlier reasoning and stating that he could interfere with the investigation and put pressure on witnesses. 9. On 20 May 2010 the District Court issued a new conviction. On 14 December 2010 the Perm Regional Court quashed this conviction. The applicant remained in detention. 10. On 26 May 2011 the Perm Regional Court convicted the applicant of drug dealing and smuggling and sentenced him to 10 years’ imprisonment. On 25 October 2011 the Supreme Court of Russia commuted the sentence to 8 years’ imprisonment. | 1 |
test | 001-184485 | ENG | GRC | COMMITTEE | 2,018 | CASE OF DAOUKOPOULOS v. GREECE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture;Degrading treatment) | Kristina Pardalos;Pauliine Koskelo;Ksenija Turković | 5. The applicant was born in 1971 and at the time of introduction of the application to the Court he was detained in Diavata Prison. 6. The applicant is serving a life sentence for drug dealing. He was initially placed in Diavata Prison from 1 October 2014 until 24 November 2015. On that date he was transferred to Malandrino Prison, from where he was transferred back to Diavata Prison on 9 May 2016. Lastly, on 20 December 2016 he was transferred back to Malandrino Prison. 7. The applicant alleged that he had been detained initially in cell no. B 14, which had measured 9 sq. m and had held four detainees in total. On 7 August 2016 he had been placed in cell no. GR 2 on the ground floor, which had measured 24 sq. m and had held ten detainees. In both cases, therefore, the living space afforded to him had been less than 3 sq. m. Overcrowding had exposed him to infectious diseases and he had suffered from passive smoking. In addition, detainees had had barely any space to move within their cell and their bunk beds had been low, not allowing them to sit up comfortably. 8. Apart from the overcrowding, the applicant submitted that the conditions of his detention had been very poor. Access to natural light and ventilation had been inadequate. Sanitary facilities and supplies had been old, broken and insufficient to ensure the detainees’ wellbeing and personal hygiene. Heating had been provided only for one hour per day from 9 p.m. to 10 p.m., while hot water during winter had been provided for two hours per day and had not sufficed for all detainees. They had been forced to wash themselves using buckets of water, as the water pressure in showers had been insufficient. In each ten-person cell there had been five bunk beds, five stools, a small table and five side tables but no lockable space for personal belongings. In the four-person cell there had been two bunk beds and two stools. The mattresses had been old, mouldy and smelly, and sheets and towels had not been provided. 9. In general, detainees had lacked access to cultural, recreational and sports activities. They had had to rely on visits from friends and family in order to obtain any newspapers or magazines, which had intensified their feeling of isolation. The hours that they had been allowed to spend in the corridors had been insufficient, taking into account that they had coincided with the meal times as well as with the times they had been allowed to receive visits or make phone calls. The yard had included a football field but no balls had been provided to the detainees and the yard had not offered any opportunities for spending time creatively. The applicant further complained of the quantity and the quality of the food, claiming that it had been repetitive and lacking any nutritional value. 10. Lastly, the applicant submitted that the conditions of his detention had led him having several cardiac arrests. 11. The Government, referring to a document provided by the prison authorities, submitted that Diavata Prison had a capacity of 358 detainees on the basis of allocation of 4 sq. m per detainee according to the minimum standards set by the CPT. At the time the applicant had been detained, the prison facility had exceeded its capacity by accommodating 460 to 500 detainees. The applicant had been detained in cell no. 11 on the first floor, which had measured 24 sq. m, including a toilet measuring 2 sq. m. The cell had had a capacity of ten detainees; however, following a new law in April 2015 aimed at relieving overcrowding in prisons, many detainees had been released and that had resulted in the applicant sharing the cell with four to six detainees. Therefore, the living space afforded to the applicant had ranged from 3.14 to 4.4 sq. m. 12. As regards the rest of the applicant’s complaints, the Government argued that the prison had had a central heating system, in addition to the electric heating devices that had been provided to each cell. The cell in which the applicant had been detained had had large windows. Detainees had had access to hot water and had been provided regularly with personal hygiene products. The cells had been regularly disinfected. As regards prisoners’ meals, the Government submitted the menu of various random weeks to demonstrate that they had been comprised of a variety of food. 13. The Government submitted the applicant’s medical file in order to prove that the applicant had already suffered from cardiac conditions when his incarceration had started. The applicant’s medical needs had been fully fulfilled during the time he had spent in Diavata Prison either by visits to the prison doctor or by his transfer to nearby hospitals. Lastly, the applicant had been granted fifteen days of leave in order to take matriculation exams. | 1 |
test | 001-154198 | ENG | ITA | COMMITTEE | 2,015 | CASE OF MANGO v. ITALY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney | 5. The applicant was born in 1929 and lived in Moiano. 6. The facts of the case may be summarised as follows. 7. The applicant was the owner of a plot of land in Moiano. The land in issue was recorded on the land register as folio no. 11, parcels no. 392 and 396. 8. On 18 June 1987, a decree authorising the Moiano Municipality to take possession of a portion of the applicants’ land was issued for a period of three years, through an expedited procedure and on the basis of a public-interest declaration, in order to begin the construction of a road. 9. On 14 July 1987 the authorities took physical possession of the land. 10. By a writ served on 1 October 1990, the applicant brought an action for damages against the Moiano Municipality before the Benevento District Court. He alleged that the occupation of the land was illegal and that the construction work had been completed without there having been a formal expropriation of the land and payment of compensation. He claimed a sum corresponding to the market value of the land and a further sum in damages for the loss of enjoyment of the land during the period of lawful occupation. 11. On an unspecified date the court ordered an expert valuation of the land. In a report submitted in September 1992, the expert concluded that the occupied land covered a surface area of 109 square metres. The expert further concluded that the market value of the land on the date the land had been irreversibly transformed, which he identified as having occurred in May 1998, corresponded to 50,000 Italian lire (ITL) (EUR 25.80) per square metre. 12. By a judgment delivered on 9 March 2005 and filed with the court registry on 18 March 2005, the Benevento District Court declared that the possession of the land, which had been initially authorised, had become unlawful as of 14 July 1990. It found that the land had been irreversibly transformed by the public works. As a result, in accordance with the constructive-expropriation rule (occupazione acquisitiva or accessione invertita), the applicants had been deprived of their property, by virtue of its irreversible alteration, on the date on which the possession had ceased to be lawful. In the light of those considerations, the court concluded that the applicant was entitled to compensation in consideration for the loss of ownership caused by the unlawful occupation. 13. The court drew on the expert valuation and considered that the market value of the land, which in 1998 corresponded to ITL 50,000 (EUR 25.82) per square metre, corresponded to ITL 57,000 (EUR 29.43) per square metre on the date the occupation had become unlawful in 1990. 14. The court held that the applicant was entitled to compensation, calculated in accordance with Law no. 662 of 1996, which had entered into force in the meantime, in the sum of ITL 2,997,500 (equivalent to EUR 1,548.08), to be adjusted for inflation, plus statutory interest. 15. The court further awarded the applicant ITL 408,750 (equivalent to EUR 211.10) as compensation for the damage occasioned by the unavailability of the land during the period from the beginning of the lawful occupation (June 1987) until the date of loss of ownership (July 1990), as well as ITL 5,000,000 (EUR 2,582.28) for the damage caused by the building works and ITL 3,000,000 (EUR 1,549.37) as compensation for the decrease in the value of the adjoining land. 16. The judgment became final in May 2006. | 1 |
test | 001-141941 | ENG | DNK | CHAMBER | 2,014 | CASE OF BIAO v. DENMARK | 3 | No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) | András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paul Lemmens;Peer Lorenzen;Robert Spano | 5. The applicants were born in 1971 and 1979. They live in Malmö, Sweden. 6. The first applicant was born in Togo, where he lived until the age of 6 and again briefly from the age of 21 to 22. From the age of 6 to 21 he lived in Ghana with his uncle. He attended school there for ten years and speaks the local language. On 18 July 1993, when he was 22 years old, he entered Denmark and requested asylum, which was refused by a final decision of 8 March 1995. 7. In the meantime, on 7 November 1994 he had married a Danish national. Having regard thereto, on 1 March 1996, by virtue of the former section 9, subsection 1(ii), of the Aliens Act (Udlændingeloven) he was granted a residence permit, which became permanent on 23 September 1997. 8. On 25 September 1998, the first applicant and his Danish wife divorced. 9. On 22 April 2002 the first applicant acquired Danish citizenship. Thus, at the relevant time he met the requirement relating to the length of his period of residence, age, general conduct, arrears owed to public funding and language proficiency. 10. On 22 February 2003 in Ghana, the first applicant married the second applicant, whom he had met during one of four visits to Ghana made in the five years prior to their marriage. The second applicant was born in Ghana. 11. On 28 February 2003, at the Danish Embassy in Accra in Ghana, the second applicant requested a residence permit for Denmark with reference to her marriage to the first applicant. At that time she was 24 years old. She stated that she had not visited Denmark. Her parents lived in Ghana. In the application form, the first applicant submitted that he had not received any education in Denmark, but had participated in various language courses and short-term courses concerning service, customer care, industrial cleaning, hygiene and working methods. He had been working in a slaughterhouse since 15 February 1999. He had no close family in Denmark. He spoke and wrote Danish. The spouses had come to know each other in Ghana and they communicated in the Hausa and Twi languages. 12. At the relevant time, under section 9, subsection 7, of the Aliens Act family reunion could only be granted if both spouses were over 24 years old and their aggregate ties to Denmark were stronger than the spouses’ attachment to any other country. 13. On 1 July 2003, the Aliens Authority (Udlændingestyrelsen) refused the request because it found that it could not be established that the spouses’ aggregate ties with Denmark were stronger than their aggregate ties to Ghana. 14. In July or August 2003 the second applicant entered Denmark on a tourist visa. 15. On 28 August 2003 she appealed against the Aliens Authority’ decision of 1 July 2003, to the then Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration).The appeal did not have suspensive effect. 16. On 15 November 2003 the applicants moved to Sweden. 17. By Act no. 1204 of 27 December 2003, section 9, subsection 7, of the Aliens Act was amended so that the attachment requirement was lifted for persons who had held Danish citizenship for at least 28 years (the so-called 28-year rule, 28-års reglen). Furthermore, persons born or having arrived in Denmark as small children could be exempted from the attachment requirement, provided they had resided lawfully there for 28 years. 18. On 6 May 2004 the applicants had a son. He was born in Sweden but is a Danish national due to his father’s nationality. 19. On 27 August 2004 the Ministry of Refugee, Immigration and Integration Affairs upheld the decision by the Aliens Authority of 1 July 2003 to refuse to grant the second applicant a residence permit. It noted in particular that the second applicant had always lived in Ghana and had family there, and that the first applicant had ties with Ghana and had, among other things, attended school there for ten years. Finally, it found that the family could settle in Ghana, as that would only require that the first applicant obtain employment there. 20. On 18 July 2006, before the High Court of Eastern Denmark (Østre Landsret), the applicants instituted proceedings against the Ministry of Refugee, Immigration and Integration Affairs and relied on Article 8 of the Convention, alone and in conjunction with Article 14 of the Convention, as well as Article 5 (2) of the European Convention on Nationality. They submitted, among other things, that it amounted to indirect discrimination against them when applying for family reunion, that persons who were born Danish citizens were exempt from the attachment requirement altogether, whereas persons who had acquired Danish citizenship at a later point in life had to comply with the 28-year rule before being exempted from the attachment requirement. In the present case that would entail that the first applicant could not be exempted from the attachment requirement until 2030, thus after 28 years of Danish citizenship, and after having reached the age of 59. 21. By a judgment of 25 September 2007 the High Court of Eastern Denmark unanimously found that the refusal to grant the applicants family reunion with reference to the 28-year rule and the attachment requirement did not contravene the Articles of the Convention or the European Convention on Nationality relied on. It stated as follows: “...the facts given in the decisions of the immigration authorities in the case are found not to be disputed. Hence, [the second applicant] who is a Ghanaian national, was thus 24 years old when she applied for a residence permit on 28 February 2003, and she had no other ties with Denmark than her recent marriage to [the first applicant]. [The second applicant] had always lived in Ghana and had family there. [The first applicant] had some ties with Ghana, where he had lived with his uncle while attending school in Ghana for ten years. He entered Denmark in 1993 at the age of 22 and became a Danish national on 22 April 2002. [The applicants] married in Ghana on 22 February 2003 and have lived in Sweden since 15 November 2003 with their child, born on 6 May 2004. [The first applicant] has told the High Court that the family can settle lawfully in Ghana if he obtains paid employment in Ghana. It appears from a Supreme Court judgment of 13 April 2005, reproduced on page 2086 in the Danish Weekly Law Reports (Ugeskrift for Retsvæsen) for 2005, that Article 8 of the Convention does not impose on the Contracting States any general obligation to respect immigrants’ choice of the country of their residence in connection with marriage, or otherwise to authorise family reunion. In view of the information on [the applicants’] situation and their ties with Ghana, the High Court accordingly finds no basis for setting aside the Defendant’s decision establishing that [the applicants’] aggregate ties with Ghana were stronger than their aggregate ties with Denmark and that [the applicants] therefore did not meet the attachment requirement set out in section 9, subsection 7, of the Aliens Act. In this connection, the High Court finds that the refusal did not bar [the applicants] from exercising their right to family life in Ghana or in a country other than Denmark. The fact that [the first applicant] is only able to reside in Ghana if he obtains paid employment there is found not to lead to any other assessment. Accordingly, the High Court holds that the decision of the Ministry did not constitute a breach of Article 8 of the Convention. Although the High Court has held that Article 8 of the Convention has not been breached in this case, the High Court has to consider [the applicants’] claim that, within the substantive area otherwise protected by Article 8, the decision of the Ministry constituted a breach of Article 14 read in conjunction with Article 8 of the Convention. The High Court initially observes that [the first applicant] had been residing in Denmark for 11 years when the Ministry made its decision. Although he acquired Danish nationality in 2002, nine years after his entry to Denmark, he did not meet the 28-year nationality requirement applicable to all Danish nationals pursuant to section 9, subsection 7 of the Aliens Act, irrespective of whether they are of foreign or Danish extraction. Nor did he have the comparable attachment to Denmark throughout 28 years which will generally lead to an exemption from the attachment requirement according to the preparatory works to the 2003 statutory amendment. The 28-year rule is a generally worded relaxation of the attachment requirement based on an objective criterion. In practice, however, the rule may imply that a Danish national of foreign extraction will only meet the 28-year rule later in life than would be the case for a Danish national of Danish extraction. When applied, the rule may therefore imply an indirect discrimination. According to the relevant explanatory report, Article 5 of the European Convention on Nationality must be taken to mean that Article 5 § 1 concerns the conditions for acquiring nationality while Article 5 § 2 concerns the principle of non-discrimination. According to the report, it is not a mandatory rule that the Contracting States are obliged to observe in all situations. Against that background, Article 5 is considered to offer protection against discrimination to an extent that goes no further than the protection against discrimination offered by Article 14 of the Convention. The assessment of whether the refusal of the Ministry implied discrimination amounting to a breach of Article 14 read in conjunction with Article 8 of the Convention is accordingly considered to depend on whether the difference in treatment which occurred as a consequence of the attachment requirement despite the nationality can be considered objectively justified and proportionate. According to the preparatory works to the Act, the overall aim of the attachment requirement, which is a requirement of lasting and strong links to Denmark, is to regulate spousal reunion in Denmark in such manner as best to ensure the integration of immigrants in Denmark, which aim must in itself be considered objective. In the view of the High Court, difference in treatment between Danish nationals of Danish extraction and Danish nationals of foreign extraction can therefore be justified by this aim relative to the right to spousal reunion if a Danish national of foreign extraction has no such lasting and strong attachment to Denmark. The balancing of this overall consideration relative to the specific circumstances in the case requires a detailed assessment. The High Court finds that the assessment and decision of the Ministry were made in accordance with section 9(7) of the Aliens Act and the preparatory works describing the application of the provision. Accordingly, and in view of the specific information on [the first applicant’s] situation, the High Court finds no sufficient basis for holding that the refusal by the Ministry to grant a residence permit to [the second applicant] with reference to the attachment requirement of the Aliens Act implies a disproportionate infringement of [the first applicant’s] rights as a Danish national and his right to family life. The High Court therefore finds that the decision of the Ministry was not invalid, and that it was not contrary to Article 14 read in conjunction with Article 8 of the Convention.” 22. The applicants appealed against the judgment to the Supreme Court (Højesteret), which passed its judgment on 13 January 2010 confirming the High Court judgment. 23. The Supreme Court found, unanimously, that it was not in breach of Article 8 of the Convention to refuse the second applicant a residence permit in Denmark. It stated as follows: “By its decision of 27 August 2004, the Ministry of Integration refused the application from [the second applicant] for a residence permit on the grounds that the aggregate ties of herself and her spouse [the first applicant] with Denmark were not stronger than their aggregate ties with Ghana, see section 9, subsection 7, of the Aliens Act. [The applicants] first submitted that the refusal was unlawful because it was contrary to Article 8 of the European Convention on Human Rights. If the refusal was not contrary to Article 8, they submitted as their alternative claim that it was contrary to the prohibition against discrimination enshrined in Article 14 read in conjunction with Article 8, for which reason they were eligible for family reunion in Denmark without satisfying the attachment requirement set out in section 9(7) of the Act. For the reasons given by the High Court, the Supreme Court upholds the decision made by the Ministry of Integration that it is not contrary to Article 8 to refuse [the second applicant’s] application for a residence permit.” 24. Moreover, the majority of the Supreme Court (four judges) found that the 28-year rule was in compliance with Article 8 of the Convention in conjunction with Article 14 of the Convention. They stated as follows: 25. A minority of three judges was of the view that the 28-year rule implied an indirect discrimination between persons who were born Danish citizens and persons who had acquired Danish citizenship later in their life. Since persons who were born Danish citizens would usually be of Danish ethnic origin whereas persons who acquired Danish citizenship at a later point in their life would generally be of foreign ethnic origin, the 28-year rule also entailed an indirect discrimination between ethnic Danish citizens and Danish citizens with a foreign ethnic background. More specifically, they stated: “As stated by the majority, the requirement of section 9, subsection 7, of the Aliens Act that the spouses’ or cohabitants’ aggregate ties with Denmark must be stronger than their aggregate ties with another country (the attachment requirement) does not apply when the resident person has been a Danish national for 28 years (the 28-year rule). The 28-year rule applies both to persons born Danish nationals and to persons acquiring Danish nationality later in life, but in reality the significance of the rule differs greatly for the two groups of Danish nationals. For persons born Danish nationals, the rule only implies that the attachment requirement applies until they are 28 years old. For persons not raised in Denmark who acquire Danish nationality later in life, the rule implies that the attachment requirement applies until 28 years have passed after the date when any such person became a Danish national. As an example, [the first applicant] who became a Danish national at the age of 31, will be subject to the attachment requirement until he is 59 years old. The 28-year rule therefore implies that the major restriction of the right to spousal reunion resulting from the attachment requirement will affect persons who only acquire Danish nationality later in life far more often and with a far greater impact than persons born with Danish nationality. Hence, the 28-year rule results in obvious indirect difference in treatment between the two groups of Danish nationals. The vast majority of persons born Danish nationals will be of Danish ethnic origin, while persons acquiring Danish nationality later in life will generally be of other ethnic origin. At the same time, the 28-year rule therefore implies obvious indirect difference in treatment between Danish nationals of Danish ethnic origin and Danish nationals of other ethnic origin regarding the right to spousal reunion. Pursuant to section 9, subsection 7, of the Aliens Act, the attachment requirement may be disregarded if exceptional reasons make it appropriate. According to the preparatory works to the 2003 Act, this possibility of exemption is to be administered in such a manner that aliens who were born and raised in Denmark or who came to Denmark as small children and were raised here must be treated comparably to Danish nationals, which means that they will be exempt from the attachment requirement when they have lawfully resided in Denmark for 28 years. However, relative to persons who were not raised in Denmark, but acquire Danish nationality later in life, this does not alter the situation described above concerning the indirect difference in treatment implied by the 28-year rule. When the attachment requirement was introduced by Act No. 424 of 31 May 2000, all Danish nationals were exempt from the requirement. Act No. 365 of 6 June 2002 made the attachment requirement generally applicable also to Danish nationals. Concerning the reason for this, the preparatory works to the Act state, inter alia: “With resident aliens and Danish nationals of foreign extraction it is a widespread marriage pattern to marry a person from their countries of origin, among other reasons due to parental pressure [...]. The Government finds that the attachment requirement, as it is worded today, does not take sufficient account of the existence of this marriage pattern among both resident foreigners and resident Danish nationals of foreign extraction. There are thus also Danish nationals who are not well-integrated in Danish society and where integration of a spouse newly arrived in Denmark may therefore entail major problems.” By Act No. 1204 of 27 December 2003, the application of the attachment requirement to Danish nationals was restricted through the 28-year rule, and the preparatory works to the Act stated that the purpose was, inter alia, “to ensure that Danish expatriates with strong and lasting ties to Denmark in the form of at least 28 years of Danish nationality will be able to obtain spousal reunion in Denmark”. In the light of these notes, it is considered a fact that the indirect difference in treatment between Danish nationals of Danish ethnic extraction and Danish nationals of other ethnic extraction following from the 28-year rule is an intended consequence. Under Article 14 of the Convention, the enjoyment of the rights and freedoms recognised by the Convention, including the individual’s right under Article 8 to respect for his or her family life, must be “secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” As mentioned above, the 28-year rule implies both indirect difference in treatment between persons born Danish nationals and persons only acquiring Danish nationality later in life and, in the same connection, indirect difference in treatment between Danish nationals of Danish ethnic extraction and Danish nationals of other ethnic extraction. Both these types of indirect difference in treatment must be considered to fall within Article 14 read in conjunction with Article 8 of the Convention. The two types of indirect difference in treatment implied by the 28-year rule are therefore contrary to Article 14 unless the difference in treatment can be considered objectively justified and proportionate. The European Convention on Nationality of 6 November 1997, which has been ratified by Denmark, provides in Article 5 § 2: “Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently.” The memorandum of 14 January 2005 made by the Ministry of Integration and the memorandum of November 2006 made by the working group composed of representatives of the Ministry of Justice, the Ministry of Foreign Affairs and the Ministry of Integration state that the provision solely concerns issues on the revocation and loss of nationality. In our opinion it is dubious whether there is any basis for such restrictive interpretation as the provision, according to its wording, comprises any difference in treatment exercised as a consequence of how and when nationality was acquired. As appears from the explanatory report, the provision is not a prohibition from which no derogation may be made, and the provision must be taken to mean that it may be derogated from if the difference in treatment is objectively justified and proportionate. However, when assessing the 28-year rule relative to Article 14 read in conjunction with Article 8 of the Convention, we consider it necessary to include the fact that, at least according to its wording, Article 5 § 2 of the European Convention on Nationality comprises a general provision stating that any difference in treatment between different groups of a State Party’s own nationals is basically prohibited. In an assessment made under Article 14 read in conjunction with Article 8 of the Convention, another factor to be taken into consideration is the crucial importance of being entitled to settle with one’s spouse in the country of one’s nationality. As mentioned, Danish nationals were originally generally exempt from the attachment requirement. The Supreme Court established in a judgment reproduced on p. 2086 in the Danish Weekly Law Reports for 2005 that discrimination relative to the right to spousal reunion based on whether the resident spouse is a Danish or foreign national is not contrary to the prohibition of discrimination laid down in Article 14 read in conjunction with Article 8 of the Convention. In this respect, the Supreme Court referred to paragraphs 84 to 86 of the judgment delivered by the European Court of Human Rights on 28 May 1985 in Abdulaziz, Cabales and Balkandali v. the United Kingdom. Difference in treatment based on nationality must be seen, inter alia, in the light of the right of Danish nationals to settle in Denmark, and no significance can be attributed to the fact that such discrimination is not considered contrary to Article 14 read in conjunction with Article 8 when assessing whether it is permissible to implement a scheme implying difference in treatment between different groups of Danish nationals. In our opinion, no crucial significance can be attributed to paragraphs 87 to 89 of the Abdulaziz, Cabales and Balkandali judgment either in this assessment, among others because difference in treatment based on the length of a person’s period of nationality is not comparable to difference in treatment based on place of birth. In the cases in which the attachment requirement applies, some of the factors emphasised are whether the resident spouse has strong links to Denmark by virtue of his or her childhood and schooling in Denmark. Such strong attachment to Denmark will exist in most cases in which a person has held Danish nationality for 28 years. However, when assessing whether the difference in treatment implied by the 28-year rule can be considered objectively justified, it is not sufficient to compare persons not raised in Denmark who acquire Danish nationality later in life with the large group of persons who were born Danish nationals and were also raised in Denmark. If exemption from the attachment requirement was justified only by regard for the latter group of Danish nationals, the exemption should have been delimited differently. The crucial element must therefore be a comparison with persons who were born Danish nationals and have been Danish nationals for 28 years, but who were not raised in Denmark and may perhaps not at any time have had their residence in Denmark. In our opinion, it cannot be considered a fact that, from a general perspective, this group of Danish nationals has stronger ties with Denmark than persons who have acquired Danish nationality after entering and residing in Denmark for a number of years. It should be taken into consideration in that connection that one of the general conditions for acquiring Danish nationality by naturalisation is that the relevant person has resided in Denmark for at least nine years, has proved his or her proficiency in the Danish language and knowledge of Danish society and meets the requirement of self-support. Against that background, it is our opinion that the indirect difference in treatment implied by the 28-year rule cannot be considered objectively justified, and that it is therefore contrary to Article 14 read in conjunction with Article 8 of the Convention. The consequence of this must be that, when applying section 9, subsection 7, of the Aliens Act to Danish nationals, the authorities must limit the 28-year rule to being solely an age requirement, meaning that the attachment requirement does not apply in cases in which the resident spouse is a Danish national and is at least 28 years old. Accordingly, we vote for ruling in favour of the [applicants’] claim to the effect that the Ministry of Integration must declare invalid the decision of 27 August 2004, thereby remitting the case for renewed consideration. In view of the outcome of the voting on this claim we see no reason to consider the claim for compensation.” | 0 |
test | 001-168374 | ENG | LTU | CHAMBER | 2,016 | CASE OF KRAULAIDIS v. LITHUANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1985 and lives in Vilnius. 6. At around 12.30 p.m. on 28 April 2006, the applicant’s motorcycle collided with a car driven by M.N. in a residential area of Vilnius. M.N. was not injured, but the applicant suffered multiple spinal fractures and serious damage to his spinal cord. As a result of the accident, he lost the ability to walk and became disabled. 7. On the day of the accident, 28 April 2006, the Vilnius City Police Department opened a pre-trial investigation concerning a possible violation of road traffic safety regulations resulting in an accident that caused nonsevere impairment to another person’s health (Article 281 § 1 of the Criminal Code). The pre-trial investigation was supervised by the Vilnius City District Prosecutor’s Office (hereinafter “the district prosecutor”). 8. On the same day M.N. was questioned as a witness. He stated that before the collision he had been driving at a speed of around 50 km/h and had decided to overtake the car in front of him. The road had two lanes. He checked that there were no cars in the left-hand lane, coming either from in front or from behind, indicated left and overtook the car. He then indicated right and began returning to the right-hand lane. At that moment he felt a blow to the back of his car but did not understand what had happened. He drove for another thirty metres and stopped the car. Then he noticed that a motorcycle and its rider were lying on the ground, and called the police and the ambulance service. He had not seen the motorcycle before the collision. 9. On the same day the police investigator examined the scene of the accident. The investigator’s report indicated that the accident had occurred on a sunny day, on a straight paved road which had been dry. It described the location of the applicant’s motorcycle and M.N.’s car as they had been found after the accident, as well as the presence of skid marks and fragments of glass and plastic on the road. All those elements were also indicated in a sketch drawn by the investigator. The sketch included a column for drivers to sign if they agreed that the scene of the accident had been depicted accurately, but it was not signed by either the applicant or M.N. 10. On the same day the investigator examined the applicant’s motorcycle and M.N.’s car. The investigator’s report described the damage to the front, back and both sides of the motorcycle, and to the back of the car. It also stated that before the accident both the motorcycle and the car had been in good technical condition and working properly. 11. On the same day a court medical expert took blood samples from the applicant and M.N. in order to determine whether they had been sober. The examination detected no traces of alcohol in the blood of either of them. 12. On 4 May 2006 the applicant was granted victim status in the investigation and questioned about the details of the accident. He stated that before the collision he had been driving at about 60 km/h and had decided to overtake a bus and two cars. Seeing that the left-hand lane was free, he began overtaking the bus and the cars and accelerated to about 70 km/h. After overtaking them, while still in the left-hand lane, he slowed down to 50 km/h, but as that lane was free, he decided to also overtake three more cars and a truck. He began to accelerate again, but then one of the three cars, which at that moment was about fifteen metres in front of him, suddenly pulled out into the left-hand lane without indicating. The applicant applied the brakes but started losing control of the motorcycle, so he released the brakes before applying them again. The front wheel of the motorcycle hit the back of the car. The applicant fell off the motorcycle and landed on the road. He did not see what happened to the motorcycle after the collision. He lay on the ground until the ambulance arrived and took him to hospital. 13. On 5 May 2006 a court medical expert concluded that the applicant’s injuries corresponded to severe health impairment. 14. On an unspecified date the legal ground for the pre-trial investigation was changed to Article 281 § 3 of the Criminal Code – violation of road traffic safety regulations, which resulted in an accident causing severe impairment to another person’s health. 15. From 3 to 16 May 2006 the police investigator questioned the applicant’s mother and five eyewitnesses to the accident. It appears that the eyewitnesses provided contradictory testimonies as to the location and speed of the two vehicles immediately before the collision, the distance between them and the exact account of the events leading up to the collision. 16. On 15 May 2006 the investigator examined the scene of the accident together with M.N. The latter indicated the trajectory of his car before the collision and the exact location of the collision. 17. On 20 June 2006 the applicant was informed that a forensic expert would be instructed to examine the circumstances of the accident and establish an account of the events. The applicant’s lawyer submitted additional questions to be forwarded to the expert. The relevant order adopted on 14 July 2006 by the Vilnius City Second District Court and forwarded to the expert on 1 September 2006 does not appear to have included the questions submitted by the applicant’s lawyer. 18. The examination was carried out by an expert from the Forensic Science Centre of Lithuania (Lietuvos teismo ekspertizės centras), a governmental institution responsible for carrying out forensic examinations required by courts and other pre-trial investigation bodies. The expert was provided with the sketch of the accident (see paragraph 9 above) and photographs of the two vehicles, and asked to determine the location of the collision, to estimate the speed of the motorcycle before the collision, and to establish who had been responsible for the accident. The expert report, delivered on 31 January 2007 (hereinafter “the first expert report”), stated that the description of the skid marks and the fragments of glass and plastic on the road indicated that the collision had occurred in the right-hand lane. The expert estimated the speed of the motorcycle immediately before the collision as at least 70.3 km/h and, assuming that the speed limit on that road was 50 km/h, noted that the applicant had exceeded that limit. The expert concluded that the accident had been caused by the applicant because he had been exceeding the speed limit and had started applying his brakes too late to avoid the collision. 19. On 22 February 2007 the district prosecutor instructed the police investigator to carry out a number of additional investigative actions, including: − interviewing the officer who had sketched the accident scene (see paragraph 9 above) in order to determine whether the sketch was accurate and why it had not been signed by the applicant and M.N.; − examining the scene of the accident together with the applicant in order to verify his account of the events leading to the collision; − finding out whether, at the time of the accident, there were any traffic signs on the road indicating the speed limit, or any restrictions on overtaking; − additionally questioning an eyewitness who had claimed that following the collision the applicant’s motorcycle had risen up in the air and landed in the right-hand lane, in order to clarify the details of that testimony; and − questioning another eyewitness identified by the applicant’s mother. 20. On 26 February 2007 the applicant’s mother, R.K., whom the applicant had authorised to act on his behalf, complained to the district prosecutor that the pre-trial investigation was being carried out slowly and ineffectively. She claimed that the sketch of the accident was inaccurate, as proven by the absence of the drivers’ signatures. She also complained that the investigators had not questioned all the eyewitnesses to the accident and had not eliminated the contradictions between different testimonies. R.K. further complained that the questions of the applicant’s lawyer had not been forwarded to the expert examining the circumstances of the accident (see paragraph 17 above). Lastly, she complained that the prosecutor had sent that expert’s report to the wrong address, so she and the applicant had not received it. R.K. asked the court to change the investigator in charge of the pre-trial investigation and to ensure that essential investigative measures were carried out. 21. On 16 March 2007 the district prosecutor upheld R.K.’s complaint. The pre-trial investigation was transferred to a different investigator within the Vilnius City Police Department and the investigator was instructed to carry out the investigative measures requested by R.K. As to the forensic expert’s report, the prosecutor informed R.K. that the questions to be submitted to the expert had been approved by a court decision, which the applicant had not challenged. 22. On 27 March 2007 the district prosecutor notified the Vilnius City Police Department that the newly appointed investigator was conducting the pre-trial investigation “in a sluggish manner” (vangiai), contrary to the requirement to complete it in the shortest possible time. 23. In March and April 2007 the police investigator carried out the additional investigative measures ordered by the district prosecutor (see paragraph 19 above). 24. On 18 April 2007, in response to R.K.’s complaint, the district prosecutor informed her that the police officer who had drawn up the sketch of the accident had been questioned and confirmed its accuracy, so there were no grounds to suspect that the sketch had been falsified. The prosecutor also noted that an internal inquiry had been opened concerning the absence of the drivers’ signatures on the sketch of the accident. 25. Subsequently, in his order to the Vilnius City Police Department the district prosecutor pointed out that the absence of the drivers’ signatures on the sketch had given R.K. legitimate doubts as to its accuracy, and asked the police to look into the officers’ actions when drawing up the sketch. On 29 May 2007 the inquiry found that the police investigator who had carried out the initial investigative measures and who had been responsible for ensuring that the drivers signed the sketch had not performed her duties properly. However, the investigator was not given a disciplinary penalty because more than one year had passed since the breach and she was no longer working in the interior affairs system. 26. On 21 May 2007 R.K. complained to the Prosecutor General’s Office that the district prosecutor was not properly supervising the pre-trial investigation, which was slow and ineffective. She raised similar complaints to those she had raised before (see paragraph 20 above) and asked for the removal of the prosecutor who had been in charge of supervising the investigation. On 15 June 2007 the Prosecutor General’s Office dismissed R.K.’s complaint, finding no serious breaches in the prosecutor’s actions. The Prosecutor General’s Office also held that although the prosecutor had sent some documents to an incorrect address, those same documents had also been sent to the applicant’s lawyer, so the applicant had in fact received them. 27. On 10 December 2007 the Vilnius City Second District Court ordered an additional forensic examination of the circumstances of the accident. The examination was carried out by the same expert from the Forensic Science Centre as before (see paragraph 18 above). The expert report, delivered on 16 June 2008 (hereinafter “the second expert report”), did not make a fresh estimate of the speed of the applicant’s motorcycle but relied on the findings of the first expert report and considered that the applicant had been travelling at a speed of at least 70.3 km/h. It found that the speed limit at the location of the accident had been 60 km/h and not 50 km/h, as assumed in the first expert report, which nonetheless meant that the applicant had exceeded the speed limit. Having examined the sketch of the accident and the damage to both vehicles, the second report confirmed the conclusion of the first report that the collision had occurred in the righthand lane, while the motorcycle was moving into it from the left-hand lane. It found no data indicating that M.N. had been driving at speeds in excess of the speed limit or that he had done anything which might have caused the accident. The report concluded that the accident had been caused by the applicant: the main cause had not been the speed of the motorcycle but the difference between the speed of the two vehicles, and the fact that the applicant had not started to brake in time to avoid the collision. 28. On 13 August 2008 the district prosecutor discontinued the pre-trial investigation on the grounds that M.N.’s actions had not amounted to a crime as provided for by Article 281 § 3 of the Criminal Code. R.K. appealed against that decision before a senior prosecutor, arguing that the investigation had been biased and incomplete. She stressed in particular that the sketch of the accident had been inaccurate, as proven by the absence of the drivers’ signatures (see paragraph 9 above). She also submitted that the prosecutor had disregarded the testimonies of some eyewitnesses that the collision had occurred in the left-hand lane and that it had caused the applicant’s motorcycle to rise up in the air and land in the other lane (see paragraph 19 above). Her appeal, however, was dismissed. The senior prosecutor pointed out that two expert reports had concluded that the accident had been caused not by M.N. but by the applicant himself, and that the testimonies of several eyewitnesses had confirmed that conclusion. 29. R.K. appealed before the Vilnius City First District Court. She again argued that the sketch of the accident was inaccurate, as proven by the absence of the drivers’ signatures. She also submitted an opinion by a specialist in the field of road traffic accidents, issued at R.K.’s request on 17 October 2008 (hereinafter “the specialist’s opinion”), which had concluded that although both the applicant and M.N. had exceeded the speed limit, that fact had not been the cause of the accident. The specialist considered that the accident had occurred in the left-hand lane and that it had been caused by M.N. suddenly entering that lane – despite the applicant’s attempts to brake and slow down, it had not been objectively possible for him to avoid the collision. 30. On 20 November 2008 the Vilnius City First District Court upheld R.K.’s appeal and reopened the pre-trial investigation. The court noted the contradictory findings of the expert reports on one hand and the specialist’s opinion on the other hand, and considered that it was necessary to conduct a fresh forensic examination by a different expert in order to eliminate those contradictions. 31. On 23 February 2009 the police investigator ordered a fresh examination of the circumstances of the accident. The examination was carried out by a different expert from the Forensic Science Centre. In his report, delivered on 15 May 2009 (hereinafter “the third expert report”), the expert examined the sketch of the accident and photographs of the two vehicles, and estimated that immediately before the collision the applicant had been travelling at a speed of at least 70 km/h, and that it was not possible to determine the speed at which M.N. had been driving. The report also stated that the motorcycle had hit the right side of the car, so even if, as claimed by the applicant, the car had entered the left-hand lane suddenly and unexpectedly, that would not have caused the collision, which had occurred in the right-hand lane. The report concluded that the accident had been caused by the applicant, who had exceeded the speed limit and had not slowed down in time to avoid the collision. 32. On 3 June 2009 the district prosecutor discontinued the pre-trial investigation on the grounds that M.N.’s actions had not amounted to the crime stipulated in Article 281 § 3 of the Criminal Code. On 7 July 2009 a senior prosecutor upheld that decision, noting that the third expert report had confirmed that the accident had been caused by the actions of the applicant and not of M.N. 33. R.K. lodged an appeal with the Vilnius City Second District Court, submitting that the third expert report was inaccurate, in particular because it concluded that the collision had occurred in the right-hand lane, which was contrary to the material in the case file. She also submitted that the third expert report had not refuted the conclusions of the specialist’s opinion. R.K. further argued that the testimonies of some eyewitnesses had clearly demonstrated that the accident had been caused by M.N. (see paragraph 28 above), but they had not been properly considered by the prosecutor. 34. On 5 August 2009 the Vilnius City Second District Court upheld the appeal and reopened the pre-trial investigation. The court held that it was necessary to address the arguments presented in R.K.’s appeal and that the third expert report had to be assessed together with the other available evidence, such as reports concerning the location of the accident and eyewitness testimonies. 35. On 23 November 2009 the Vilnius City Second District Court ordered a fresh expert examination of the circumstances of the accident. The order was forwarded to the Forensic Science Centre on 4 March 2010, together with the specialist’s opinion. The examination was carried out by a different expert from the Forensic Science Centre. The expert report, delivered on 11 June 2010 (hereinafter “the fourth expert report”), examined the sketch of the accident and photographs of the two vehicles, and estimated that immediately before the collision the applicant had been travelling at a speed of at least 70.3 km/h. It found that although it was not possible to estimate the speed at which M.N. had been driving, the fact that the motorcycle had hit the back of the car meant that the car had been going slower than the motorcycle. The expert considered that it was not possible to determine the trajectory of the two vehicles before the collision. However, even if the applicant’s version was to be believed and M.N.’s car had suddenly entered the left-hand lane at a distance of fifteen metres from the applicant’s motorcycle (see paragraph 12 above), the applicant could have slowed down and avoided the collision. The fourth expert report concluded that the accident had occurred in the right-hand lane and that it had been caused by the applicant who had exceeded the speed limit and had not slowed down in time to avoid the collision. 36. In January and February 2010 the police investigator again questioned the applicant, M.N. and some of the eyewitnesses questioned previously. 37. R.K. was informed about the findings of the fourth expert report on 2 August 2010. She complained to the district prosecutor that she had not been given the opportunity to submit additional questions to the expert, in particular, whether having collided with the car, the motorcycle could have risen up in the air and landed in a different lane, as claimed by some eyewitnesses (see paragraph 28 above). R.K. also complained that the expert had relied on low-quality photographs of the motorcycle but had not examined the motorcycle itself, and that the report’s findings had been incorrect. On 8 September 2010 the district prosecutor upheld R.K.’s complaint and ordered the police investigator to examine the applicant’s motorcycle and to forward R.K.’s questions to the expert who had conducted the fourth examination. On 18 October 2010 the expert responded that the description of the location of the accident showed that during the collision the motorcycle had not risen up into the air. 38. On 2 November 2010 the district prosecutor again discontinued the pre-trial investigation on the grounds that M.N.’s actions had not amounted to the crime stipulated in Article 281 § 3 of the Criminal Code. On 22 December 2010 a senior prosecutor upheld that decision, considering that the fourth expert report had assessed all the material collected during the pre-trial investigation, including the specialist’s opinion, and that R.K. had been given sufficient opportunity to present her questions to the expert. 39. On 17 February 2011 the Vilnius City Second District Court dismissed an appeal lodged by R.K. and upheld the prosecutor’s decision. The court considered that expert reports and eyewitness testimonies demonstrated that M.N. had entered the left-hand lane within a safe distance from the applicant’s motorcycle, and thus had not violated road traffic safety regulations. Although there had been contradictory eyewitness testimonies as to the exact distance between M.N.’s car and the applicant’s motorcycle, the court considered that any doubts had to be interpreted in M.N.’s favour. The court also held that the conclusions of the specialist’s opinion that the collision had occurred in the left-hand lane had been contrary to the description of the location of the accident as provided in the sketch (see paragraph 9 above). 40. On 22 March 2011 the Vilnius Regional Court quashed the lower court’s decision and reopened the pre-trial investigation. It held that the decision to discontinue the investigation had not been based on a comprehensive assessment of all the collected material but had relied exclusively on evidence favourable to M.N., disregarding the applicant’s statements, eyewitness testimonies, and the specialist’s opinion. The court disagreed with the conclusion that M.N. had started overtaking within a safe distance from the applicant’s motorcycle, and noted that M.N. had also had an obligation to make sure that none of the drivers behind him had started overtaking, so it was possible that he had committed the crime stipulated in Article 281 § 3 of the Criminal Code. The court observed that the question of M.N.’s criminal responsibility would be best determined by a court examining the case on the merits. 41. On 30 May 2011, at R.K.’s request, another expert from the Forensic Science Centre submitted an opinion that, judging from the damage to both vehicles, there were no grounds to believe that the motorcycle had risen up in the air when it had collided with M.N.’s car. 42. On 31 May 2011 the district prosecutor discontinued the pre-trial investigation as time-barred, while also observing that the investigation had not identified any grounds to believe that a crime may have been committed (the prosecutor did not refer to the Vilnius Regional Court’s decision of 22 March 2011 – see paragraph 40 above). The prosecutor’s decision does not appear to have been appealed against. 43. On 18 August 2011 the applicant submitted a civil claim for damages against M.N. He stated that the accident and the resulting injuries and disability had caused him significant distress, inconvenience and emotional trauma. The applicant claimed 600,000 Lithuanian litai (LTL − approximately 173,772 euros (EUR)) in non-pecuniary damages and LTL 76,739.37 (EUR 22,225) in pecuniary damages for medical expenses and rehabilitation. 44. On 26 September 2012 the Vilnius Regional Court dismissed the applicant’s claim. It relied on the expert reports delivered during the pretrial investigation and noted that all of them had established that the accident had been caused not by M.N. but by the applicant himself. Although the specialist’s opinion, delivered at the request of the applicant’s mother, had reached a different conclusion, the court considered that the fourth expert report had taken its findings into consideration, and that it was thus unnecessary for the court to discuss the specialist’s findings separately. It also observed that the judgment of the Vilnius Regional Court of 22 March 2011 (see paragraph 39 above) could not be interpreted as affirming M.N.’s responsibility for the accident. As a result, the court concluded that it had not been established that M.N. had breached any legal requirements, which was a pre-condition for his civil liability to arise. The court also noted that the applicant had bought the motorcycle only two days before the accident, that he had not had any prior experience in driving that kind of vehicle, and that the motorcycle had not undergone a technical examination before the accident. Accordingly, the court found that the applicant himself may have breached road traffic safety regulations. The civil claim was dismissed and the applicant was ordered to pay LTL 1,521 (EUR 440.5) in legal expenses to M.N. and the State. 45. On 2 December 2013 the Court of Appeal upheld the judgment of the lower court in its entirety. | 1 |
test | 001-154347 | ENG | PRT | COMMITTEE | 2,015 | CASE OF FERREIRA ALVES v. PORTUGAL | 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) | Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 4. The applicant, a lawyer, was born in 1953 and lives in Matosinhos. 5. On 22 February 2008 the Porto Ethics Council (Conselho Deontológico do Porto) of the Portuguese Bar Association (Ordem dos Advogados) instituted disciplinary proceedings against the applicant, following a complaint introduced by the Administrative Central Court of the North (Tribunal Central Administrativo do Norte) against the latter (disciplinary proceedings no. 100/2008). In particular, the complaint concerned the applicant’s request made in the course of four different tort actions against the State, in which he was a legal representative, to have a judgment from the European Court of Human Rights translated and paid by the domestic court. 6. On 10 March 2008 the applicant was summoned of the disciplinary proceedings and on 13 March 2008 he presented his submissions. 7. On 9 November 2012 the Ethics Council dismissed the case for being time-barred. | 1 |
test | 001-142429 | ENG | RUS | CHAMBER | 2,014 | CASE OF ISMAILOV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion) | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 6. The applicant was born in 1980. Prior to his arrest in 2012 he resided in Arzamas, in the Nizhniy Novgorod Region. He is currently detained in the special detention facility in Balakhna, in the Nizhniy Novgorod Region. 7. Until April 2011 the applicant lived in Uzbekistan. His family members, including a minor son, live in Uzbekistan. From 2001 onwards he went to Russia on several occasions, in order to earn money. 8. On 12 April 2011 the applicant arrived in Russia to look for employment. On 12 July 2011 the period of the applicant’s lawful residence in Russia expired. 9. On 24 January 2012 he was fined for failure to comply with immigration laws. He did not leave the country at that point. 10. On 12 June 2012 the investigator at the Department of the Interior of the Andizhan Region of Uzbekistan charged the applicant with establishing, leading or participating in religious extremist, separatist, fundamentalist or other prohibited organisations (Article 244-2 of the Uzbek Criminal Code). The applicant was accused, in particular, of membership of a banned religious extremist organisation, “the Islamic Movement of Uzbekistan”, and a terrorist organisation, “O’zbekiston Islomiy Harakati”, between late 2008 and October 2009. According to the relevant investigator’s decision, the applicant, together with his brother and two other persons, “planned to destroy the constitutional order of Uzbekistan” and then “to create an Islamic State on the territory of Nizhniy Novgorod, Russia”. For these purposes they had moved to Russia and started to “study the ideology of the head of the terrorist movement, Tohir Yo’ldoshev, and Jumaboi Khojayev, also known as Jummah Namangani”. Further, together with other members of O’zbekiston Islomiy Harakati, they had planned an attack with intent to destroy the constitutional order of Uzbekistan and other countries in order to create an Islamic State there. They had also attempted to “carry out terrorist attacks”. The investigator stated that there was sufficient evidence against the applicant, without giving further details. 11. On the same date, the Andizhan Town Court of Uzbekistan ordered the applicant’s arrest and his name was put on a cross-border wanted list. 12. On 13 September 2012 the applicant was arrested in the town of Arzamas in the Nizhny Novgorod Region, pursuant to a request by the Uzbek authorities, and was detained pending extradition. 13. On 12 October 2012 the Deputy Prosecutor General of the Republic of Uzbekistan submitted a formal request for the applicant’s extradition. The request contained assurances that the applicant would be prosecuted only for the offences for which he was extradited, that he would be able to freely leave Uzbekistan when he had stood trial and served any sentence, and that he would not be expelled or extradited to a third State without the consent of the Russian authorities. The Uzbek prosecutor’s office further assured its Russian counterpart that the applicant would not be prosecuted in Uzbekistan on political or religious grounds, that he would not be subjected to torture or other inhuman or degrading treatment, that he would be provided with an opportunity to defend himself, inter alia through legal assistance, and that the criminal proceedings against him would be conducted in compliance with the domestic law of the Republic of Uzbekistan. It was pointed out in the letter that all forms of inhuman and degrading treatment were prohibited in the destination country. 14. On 12 November 2012 the lawyer representing the applicant in the domestic proceedings filed objections against the extradition request. He argued that according to independent international observers, illtreatment was widespread in the Uzbek prison system and fair trial guarantees were not respected. Referring to the Court’s case-law on the matter, he submitted that the applicant, who was charged with a religious offence, would run a risk of illtreatment and would be deprived of the minimum fair trial guarantees if extradited to the requesting country. 15. On 9 April 2013 the Prosecutor General’s Office of Russia refused the Uzbek authorities’ extradition request. It appears that the decision was not appealed against, and the extradition proceedings were discontinued. The parties did not submit a copy of the decision. 16. By a letter of 12 August 2013 the Prosecutor’s General Office, in reply to a letter from the applicant’s lawyer, notified the applicant of the decision to refuse his extradition to Uzbekistan. 17. On 15 September 2012, that is, two days after the applicant’s arrest, the Arzamas Town Court authorised his detention pending extradition. It appears that the decision was not appealed against. 18. On 12 November 2012 the Town Court extended the period of his detention to a total of six months, that is, until 12 March 2013. That decision was upheld by the Nizhniy Novgorod Regional Court on appeal on 11 December 2012. Until 11 March 2013 the applicant was detained in remand prison FKU SIZO-3 in the Vadskiy District of the Nizhniy Novgorod Region. 19. On 11 March 2013, that is, one day before the date when he was due to be released, the applicant was transferred to the Arzamas police station. On 12 March 2013 the authorised term of his detention pending extradition expired, and the Arzamas town prosecutor ordered the applicant’s release. 20. According to the applicant, at midnight on 12 March 2013 he was let out into the internal yard of the police station. He was not provided with any documents confirming his release from custody. Immediately afterwards, at 0.05 a.m. on 13 March 2013, he was arrested in the yard by officers of the local department of the Federal Migration Service in connection with a violation of immigration laws (Article 18-8 of the Code of Administrative Offenses (“the CAO”)) and taken into custody. 21. The Government submitted that “according to the [case] materials on the applicant’s detention” he had had to be released from custody at 7 p.m. on 12 March 2013. 22. According to the custody register at the Arzamas police station, the applicant was released from detention at 11.55 p.m. on 12 March 2013, on account of the expiry of the time-limit for his detention. 23. According to the Arzamas Town Court’s decision of 13 March 2013 (see paragraph 28 below), the applicant was arrested at 0.05 near the Arzamas police station in the course of an “extraordinary check” by the Arzamas unit of the Nizhniy Novgorod Regional Department of the Federal Migration Service. 24. At 1.20 a.m. on 13 March 2013 an officer of the Arzamas Department of the Interior drew up a record of the applicant’s arrest “for the establishment of the circumstances of an administrative offence following a request by the Arzamas Department of the Federal Migration Service.” At some point in the morning of 13 March 2013 an administrative-offence record was drawn up in respect of the applicant in connection with his failure to leave Russia after 12 July 2011. At some point on 13 March 2013 the applicant was interviewed by the head of the Arzamas unit of the Federal Migration Service and submitted, inter alia, that he had not applied for refugee status in Russia and had not had valid reasons not to leave Russia. 25. On 13 March 2013 the Arzamas Town Court of the Nizhniy Novgorod Region examined the applicant’s case. During the hearing the applicant acknowledged that he had not left Russia after 12 July 2011, contrary to the requirements of the immigration laws. However, his representative submitted that, in accordance with Article 28.1 of the CAO, administrative proceedings should have been brought against him immediately upon the obtaining of sufficient data indicating the occurrence of an administrative offence. The applicant had been arrested on 13 September 2012, and by 14 or 15 September 2012 the authorities had been in possession of sufficient information on the applicant’s immigration status. However, administrative proceedings had been brought against him only six months later, once the term of his detention pending extradition had expired. In these circumstances, the defence considered that the administrative removal of the applicant, if ordered, would amount to a form of extradition in disguise. 26. The defence further referred to reports by the UN, international nongovernmental organisations, and the Court’s case-law, arguing that the applicant was wanted by the Uzbek authorities in connection with charges relating to a religious offence, and thus he would run a risk of illtreatment if expelled to Uzbekistan. 27. Finally, they submitted that in any event his expulsion could not be ordered, since refugee-status proceedings were pending in respect of him. They pointed out in this connection that he had appealed against the refusal of 7 December 2012 to grant him refugee status (see paragraph 36 below) and had received no response by the time of the events. 28. The Arzamas Town Court found that the applicant had been residing in Russia in breach of the immigration laws. The court established that at 0.05 a.m. on 13 March 2013 at the address of the Arzamas police station “the applicant had failed to leave the Russian Federation after the expiry of the registration term, that is, 12 July 2011”. The court established that there were no circumstances precluding his administrative removal from Russia. The court dismissed the applicant’s argument as regards the refugeestatus proceedings, observing that “according to the letter of 23 January 2013 by the Russian Federal Migration Service (“the Russian FMS”), his relevant application had been rejected” (see, for the contents of the letter, paragraph 38 below). It also noted, without giving further details, that the defence’s submissions as regards the risk of torture in Uzbekistan “could not be accepted as wellfounded”. In accordance with Article 18 § 8 of the CAO the court found the applicant liable to pay a fine in the amount of 3,000 Russian roubles (RUB) and ordered his administrative removal from Russia. Citing the provisions of the CAO on controlled forced removal (see paragraphs 50-51 below), the court decided that the applicant should be detained in a special detention centre at the Nizhniy Novgorod Regional Department of the Interior («специальный приемник ГУВД по Нижегородской области») until his administrative removal. No specific timelimit for the applicant’s detention was given by the court. 29. On 22 March 2013 the Court indicated to the Government, under Rule 39 of the Rules of Court, that the applicant’s administrative removal and extradition should be suspended until further notice. 30. On 19 March 2013 the defence appealed against the decision of 13 March 2013. In addition to their initial arguments, they submitted that the first-instance court had incorrectly established the facts of the case, including in respect of the applicant’s arrest. Contrary to the case materials, they submitted, on 12 March 2013 the applicant had only been let out into the yard of the police station and, in any event, he had not been provided with any documents confirming his release from custody. Therefore, at 0.05 a.m. on 13 March 2013 he had not been at liberty and thus had been unable to deliberately “avoid leaving Russia”. They further maintained that the applicant’s expulsion would amount to his “extradition in disguise”. The extradition proceedings in respect of him had been pending at the material time. The applicant, if removed to Uzbekistan, would be unable either to challenge any decision taken within the extradition proceedings, or to benefit from the minimum guarantees in such proceedings. 31. They also stated that, contrary to the court’s findings, no final decision in the refugee-status proceedings had been taken on 25 January 2013, as clearly confirmed by the letter of the Russian FMS. Where an application for refugee status was made, domestic law prohibited the expulsion of an applicant in the absence of a final decision on his refugee status. They stressed that the first-instance court had failed to make any assessment of their ill-treatment argument, and reiterated their submissions as regards the risk of ill-treatment if the removal order were to be enforced. Finally, they submitted that the decision ordering the applicant’s detention did not contain any time-limit and was therefore in breach of Article 5 of the Convention. 32. On 26 March 2013 the Nizhniy Novgorod Regional Court upheld the administrative removal order, finding that the first-instance court had correctly established the facts of the case, assessed the admissibility of various items of evidence and applied the domestic law. The appeal court upheld the administrative sanction as lawful and found no grounds to amend it. As regards the applicant’s argument about the authorities’ failure to bring the administrative proceedings against him in a timely manner, the court noted that the administrative-offence record had been drawn up in accordance with the domestic procedure. The court found nothing in the applicant’s submissions to suggest that his family members had been persecuted in Uzbekistan. Finally, it noted the applicant had not been granted refugee status in Russia. The administrative removal order became final. 33. After 12 March 2013 the applicant was detained in the special detention facility in Arzamas. At some point before 25 November 2013 he was transferred to the special detention facility in Balakhna, in the Nizhniy Novgorod Region. He remains detained there to date. 34. On 14 September 2012, when interviewed by the Arzamas town prosecutor after his arrest, the applicant stated that he had moved to Russia to look for work. Since April 2011, the date of his arrival in Russia, he had not registered as a foreign national temporarily residing in the country. He stated that he had not been persecuted on political grounds in Uzbekistan, and had not applied for refugee status in Russia. He had learned that a criminal case was pending against him in his home country from his parents, since at some point local police had searched their home. However, he had been unaware of the nature of the charges and the basis on which the criminal case had been brought against him until his arrest in Russia. He made similar submissions when interviewed by the Vasdkiy district prosecutor of the Nizhniy Novgorod Region on 27 September 2012. 35. On 2 October 2012 the applicant lodged an application for refugee status with the Nizhniy Novgorod FMS on the ground of fear of persecution on account of fabricated charges relating to a religious offence. He stated that he did not have any religious beliefs. However, he had learned after his arrest that he had been charged with a religious offence. He submitted that the accusations against him were unfounded. He feared that in Uzbekistan he would be tortured, forced to incriminate himself and sentenced to imprisonment for religiously motivated anti-State offences he had not committed. 36. On 7 December 2012 the Nizhniy Novgorod FMS rejected the application. They referred to the applicant’s own submissions, as well as the results of checks conducted by the local Department of the Interior and FMS. It also noted that the Nizhniy Novgorod Regional Department of the Federal Security Service had recommended that the applicant should not be granted refugee status. The decision also contained a reference to an unspecified undated report on the State system and the social and economic situation in Uzbekistan. It was stated in the report, inter alia, the Uzbek authorities exercised close control over the religious life of the population, that Uzbekistan had ratified several UN human rights treaties and that the use of any unlawful investigative methods was prohibited in the requesting country. The Nizhniy Novgorod FMS observed, with reference to the applicant’s own submissions, that he had applied for refugee status after learning, at the time of his arrest, that he had been placed on the wanted list. Thus, there were grounds to consider the applicant’s request as an attempt to avoid extradition. The Department further found that the applicant had not had any problems with the authorities in his home country prior to his departure to Russia. Overall, the Nizhniy Novgorod FMS concluded that the applicant had not produced any “objective evidence to the effect that he would be persecuted on national, religious or political grounds” and that he had left Uzbekistan in order to look for employment, that is, for a reason falling outside the scope of an admissible refugee request. 37. On 25 December 2012 the applicant lodged an appeal against the refusal with the Russian FMS office, referring to the risk of illtreatment and imprisonment in his home country. He cited reports by various NGOs for 2011-2012 pointing to serious human rights problems in Uzbekistan and stated that the Nizhniy Novgorod FMS had omitted to take into account the political and religious nature of the charges against him and to analyse the specific circumstances of his case. 38. The Russian FMS received the applicant’s appeal on 15 January 2013 and by a letter of 23 January 2013 advised him that it would be considered upon receipt of documents from the Nizhny Novgorod FMS. 39. On 11 February 2013 the Russian FMS dismissed his appeal. It upheld the decision of the Nizhniy Novgorod FMS, finding that the latter had examined all the relevant individual, social and political aspects of the case and had reached a well-founded conclusion. The Russian FMS found that there was no evidence that the criminal proceedings against the applicant “had a political background”. It noted that neither the applicant nor his wife, child, mother or father, who resided in Uzbekistan, had received any threats or been subjected to any kind of persecution, and reiterated that the applicant had only applied for refugee status after his arrest. It further found that the applicant did not fit the definition of a refugee, since a fear of criminal prosecution did not constitute a ground for granting refugee status. 40. By a letter of 12 February 2013 the Russian FMS sent its decision to the applicant by post at the address of the remand centre in Arzamas. Having received the decision on 15 March 2013, he challenged it on 2 April 2013 before the Basmannyy District Court of Moscow. He argued, in particular, that the Russian FMS had failed to address his arguments or to assess the circumstances of his case. He reiterated, in addition to his initial submissions, that the thrust of his grievance was not simply the fact of the criminal prosecution, but the fear of being subjected to torture in detention in Uzbekistan with a view to a confession being extracted in respect of offences he had not committed. 41. On 18 June 2013 the Basmnnyy District Court dismissed the appeal and endorsed the Russian FMS’s decision as lawful, noting the applicant’s failure to adduce “convincing arguments to support his allegations of fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group”. The court noted from the questionnaire completed by the applicant on the date of the submission of his application that he had not been a member of any political, religious or military organisations in his home country and had not had any problems with the authorities prior to his departure for Russia. Nothing in the statement of charges drawn up by the Uzbek authorities revealed any political motivation. The court reiterated that the applicant’s family members were living in Uzbekistan and were not subject to any kind of persecution. The actual purpose of his application was to avoid criminal prosecution in Uzbekistan. Further, the applicant had not complained of a risk of persecution in Uzbekistan and had not expressed his wish to remain in Russia as a refugee until after his arrest. Moreover, there existed no medical reasons precluding his departure from Russia. The court concluded that the applicant did not meet the “refugee” definition. 42. The court also refused the defence’s request to have Ms Ryabinina questioned as an expert on the human rights situation in Uzbekistan. 43. The applicant appealed, reiterating his earlier arguments and submitting that the first-instance court had failed to assess the risk on the basis of all the available information, as well as to address his counterarguments to the Russian FMS’s decision. He maintained that the charges against him were politically motivated and emphasised the risk of illtreatment, with extensive references to reports by Human Rights Watch and Amnesty International, as well as to the Court’s case-law. As regards the court’s finding that none of his family members had been persecuted, he noted that on 12 March 2013 his brother had also been arrested in Arzamas, but had then been released because his extradition had been refused by the Russian authorities. 44. On 24 October 2013 the Moscow City Court upheld the judgment of 18 June 2013. The applicant in his observations of 25 November 2013 provided a copy of the information note on the case progress from the city court’s website containing the case references and indicating that the appeal had been rejected and the judgment had been upheld. The parties did not submit a copy of the decision. 45. In their letter of 4 April 2013 the Government submitted that at some point the applicant had applied for temporary asylum in Russia, and on 23 January 2013 the Nizhniy Novgorod FMS had refused his application, the refusal being upheld on 18 February 2013 by the Sormovskiy District Court of Nizhniy Novgorod. 46. The applicant stated that he had not applied for temporary asylum and enclosed a letter from the Nizhniy Novgorod FMS of 29 May 2013 confirming that the authority had not received any such application from him. | 1 |
test | 001-170442 | ENG | LVA | ADMISSIBILITY | 2,016 | SVĀRPSTONS AND OTHERS v. LATVIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 1. The case originated in an application (no. 14976/05) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Latvian nationals, Mr Jānis Svārpstons (“the first applicant”), Mr Juris Ulmanis (“the second applicant”) and Mr Jānis Zips (“the third applicant”), on 29 March 2005. The applicants were represented by Ms J. Kvjatkovska, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent, most recently Ms K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The events leading up to the present application took place in the context of a transition in Latvia from analogue to digital terrestrial television broadcasting. 5. On 14 November 2002 a contract was signed between the Digital Latvian Radio and Television Centre (Digitālais Latvijas radio un televīzijas centrs – “the DLRTC”), a subsidiary company of the State nonprofit joint-stock company, the Latvian State Radio and Television Centre (Latvijas Valsts radio un televīzijas centrs – “the LVRTC”), and Kempmayer Media Ltd. (“KM”), a company registered in England and Wales, for implementation by the latter of the second phase of the digital terrestrial television broadcasting project. 6. In 2002 Kempmayer Media Latvia (“KML”), a subsidiary company of KM, was incorporated in Latvia. The applicants were at the material time board members of the KML. Subsequently, KM informed the DLRTC that its obligations under the contract of 14 November 2002 would be performed by KML, with KM only overseeing implementation of the project. 7. In August 2003 the DLRTC lodged a claim against KM with the International Court of Arbitration of the International Chamber of Commerce in Stockholm, seeking to invalidate the contract of 14 November 2002. 8. On 24 August 2006 that court ruled that, being a “mailbox” company, KM had never had the capacity to fulfil its contractual obligations. It was ordered to repay 6,976,737 United States dollars (USD) to the DLRTC. 9. On 1 September 2003 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – “the KNAB”) opened an investigation into whether, in the context of the transition to digital terrestrial television broadcasting, State officials had abused their authority and failed to act. 10. The KNAB carried out various investigative actions including numerous searches. 11. On 24 October 2003, at the request of the KNAB, a judge of the Riga City Vidzeme District Court authorised the searches and seizures. 12. The judge’s decision authorising the searches and seizures was amenable to appeal before the Riga Regional Court (Rīgas apgabaltiesa) (see paragraphs 17-20 below). 13. On 27 October 2003 the KNAB searched KML’s business premises and the applicants’ residential premises. The search record indicated that numerous items were seized, such as the first applicant’s mobile phone and SIM card, the second applicant’s notebook, cassette tape, CDs, business card, the third applicant’s CDs, business cards, floppy disks, computers, computer hard drives, photographs and notes. 14. During the searches of their residential premises, the first and third applicants were also searched. 15. In October 2003 the applicants asked the KNAB and the Office of the Prosecutor General to return all the items and documents seized, in particular those of a personal nature and having no connection with the criminal case. 16. In November 2003 the applicants’ request to return the computers was refused because they contained information of evidential value. The KNAB indicated that the applicants could obtain a copy of the information stored on them and that the third applicant could recuperate certain items seized from his residential premises. Other items were being examined and would be returned if found to be of no evidential value. 17. On 3 November 2003 the applicants lodged complaints regarding the judge’s decision authorising the searches and seizures with the Riga Regional Court, arguing that it had been unsubstantiated and had not specified the items sought. They further contended that items unrelated to the criminal case had been seized from their residential premises. 18. On 11 November 2003 the Riga Regional Court dismissed the applicants’ complaints. 19. As regards the conduct of the searches, that Court noted that the actions of the investigating authority could be appealed against to the prosecution service, in accordance with Article 220 of the Criminal Procedure Code. That part of the applicants’ complaints fell outside the scope of the Regional Court’s competence and was therefore left unexamined. 20. This decision of the Regional Court was final. 21. On 15 November 2003 a prosecutor of the Office of the Prosecutor General dismissed the applicants’ complaints regarding the conduct of the searches and seizures. 22. On 3 December 2003 and 8 January 2004 the applicants’ further complaints to two higher levels of prosecutor were dismissed. The applicants’ opinion that certain seized items were of no relevance to the case was deemed without basis. Furthermore, since KNAB employees had had sufficient reasons to believe that the first and third applicants had been in possession of and were hiding items which were of relevance to the case, they could therefore be searched. 23. On 20 February 2004 the Prosecutor General dismissed the applicants’ complaints with final effect. 24. On 12 March 2004 the applicants and KML lodged a complaint with the Constitutional Court (Satversmes tiesa), challenging the compliance of Articles 220 and 222 of the Criminal Procedure Code (procedures for lodging complaints about the actions of an investigating authority and for a prosecutor’s decision on such a complaint) with Article 92 of the Constitution (right to a fair trial), Article 96 of the Constitution (right to respect for private life, home and correspondence) and Articles 6, 8 and 13 of the Convention. 25. They maintained that an investigating authority’s actions could not be the subject of an appeal before a court. A review of those actions by the prosecution service could not be equated to a review by a “court” within the meaning of Article 92 of the Constitution. They further complained in a general manner that their right to respect for private life, home and correspondence had been violated on the grounds that the intervention was not based on law. 26. On 16 April 2004, a panel of three judges of the Constitutional Court, by relying on Section 20 of the Constitutional Court Law, refused the initiation of constitutional proceedings insofar as it concerned Article 96 of the Constitution and Articles 8 and 13 of the Convention. They held that that part of the complaint did not comply with the criteria provided by Section 19² of the Constitutional Court Law (see paragraphs 29-32 below). In particular, the applicants had not sufficiently demonstrated in the complaint how their fundamental rights under those provisions had been infringed. This decision was final. 27. On 11 October 2004 the Constitutional Court handed down its judgment in relation to the remainder of the applicants’ complaint. It found that the impugned statutory provisions, namely Articles 220 and 222 of the Criminal Procedure Code, complied with Article 92 of the Constitution. The Constitutional Court also held that the prosecution service may be regarded as an effective and available legal remedy within the meaning of Article 13 of the Convention and that the absence of an appeal to a court does not in itself give rise to a breach of Article 6 or 13 of the Convention. As a result, it dismissed the applicant’s complaint. 28. Article 92 guarantees the right to a fair trial (see Čalovskis v. Latvia, no. 22205/13, § 71, 24 July 2014). Article 96 enshrines the right to respect for private life, home and correspondence (see Mentzen v. Latvia (dec.), no. 71074/01, ECHR 2004-XII). 29. Section 18 paragraph 1 part 4 of the Constitutional Court Law provides that an application to the Constitutional Court regarding the initiation of constitutional proceedings must, among other criteria, contain legal reasoning (juridiskais pamatojums). 30. Pursuant to section 19², in addition to the above-mentioned requirements, an individual constitutional complaint must include justification as to how the applicant’s fundamental rights as defined in the Constitution have been infringed upon, and show that all available remedies have been used. 31. Section 20 sets out the grounds on which the panel examining the constitutional complaint may refuse to initiate a case. Section 20 (5) (3) provides that, when examining applications, the panel dealing with the application may refuse to initiate a matter if the application does not comply with the requirements specified in Sections 18 or 19-19³ of the Constitutional Court Law. When examining a constitutional complaint, the panel may also refuse to initiate a case where the legal reasoning included in the complaint is evidently insufficient to satisfy the claim (section 20(6)). 32. For further details regarding the Constitutional Court Law see Meimanis v. Latvia, no. 70597/11, §§ 31-38, 30 June 2015. 33. The provisions of the Criminal Procedure Code applicable at the time of the national proceedings ceased to be in force on 1 October 2005. The provisions governing the procedure for complaints regarding the actions of an investigating authority provided as follows. 34. Article 220 provides that a suspect, accused and other persons may lodge complaints with a prosecutor about the actions of an investigating authority. 35. Article 221 provides that the prosecutor supervising the investigation shall decide on a complaint within ten days of receipt. A higher-ranking prosecutor shall decide on a complaint within ten days, or thirty days if a further inquiry or information is necessary in order to decide [it]. The complainant shall be informed of the outcome. If the complaint is dismissed, the prosecutor shall provide reasons as to why the complaint was considered unfounded and explain the appeal procedure. The investigating authority and complainant may appeal against the prosecutor’s decision concerning the complaint to a higher-ranking prosecutor. 36. Under Article 222 complaints about the actions of a prosecutor shall be submitted to a higher-ranking prosecutor and decided in accordance with the procedure laid down in Articles 220 and 221 of the Criminal Procedure Code. | 0 |
test | 001-157766 | ENG | ITA | CHAMBER | 2,015 | CASE OF S.H. v. ITALY | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev | 5. The applicant was born in 1984 and lives in Sacile. 6. The facts of the case as submitted by the parties may be summarised as follows. 7. The applicant is the mother of three children, R., P. and J., who were born in 2005, 2006 and 2008 respectively. 8. At the material time the applicant was living with the children’s father, was suffering from depression and was undergoing a pharmacological treatment. 9. In August 2009 the social services informed the Rome Youth Court (hereafter “the court”) that the children had been hospitalised several times following the accidental ingestion of medication, and emergency proceedings were commenced before the court. By decision of 11 August 2009 the court ordered the children’s removal from their family and their placement in an institution, and instructed the social services to draw up a support project for the children. 10. On 20 October 2009 the applicant and the children’s father were heard by the court. They admitted that owing to the applicant’s state of health and the side-effects of the medication she was taking to treat her depression they had had difficulties looking after the children. They affirmed, however, that they could take proper care of the children with the help of the social services and the children’s grandfather. The applicant pointed out that she was undergoing treatment and that the side-effects initially caused by the medication had ceased. Both parents requested that the social services put in place a support project so that the children could return home. 11. On 3 December 2009 the psychiatrist submitted her report on the applicant. The report stated that the latter was undergoing pharmacological treatment, that she was willing to have psychotherapy and to accept the assistance of the social services and that she had a very strong emotional bond with her children. On the same day the Integrated Working Group on Adoption (the “GIL”) submitted its report, pointing out that despite the family difficulties, the parents had reacted positively, had taken part in the meetings and were prepared to accept the support of the social services. Consequently, the GIL proposed returning the children to their parents and introducing a family support project. 12. By decision of 19 January 2010 the court, having regard to the expert reports and the fact that the paternal grandfather was available to help his son and the applicant to look after their children, ordered the children’s return to their parents. On 24 March 2010, however, the parents’ reunion with their children was interrupted and the children were once again removed from the family home on the grounds that the applicant had been hospitalised owing to an aggravation of her illness, that the father had left the family home and that the grandfather had fallen ill. The court established visiting rights for both parents as follows: for the applicant, one hour per fortnight, and for the children’s father, two hours per week. 13. In March 2010 the prosecutor requested the opening of a procedure for declaring the children available for adoption. 14. On 10 June 2010 the parents were heard by the court. The applicant submitted that she was undergoing treatment, that the children’s father was available to look after them and that they had therefore not been abandoned. The father emphasised that even if he was working he could take proper care of the children with his father’s help, and that he had recruited a home help. 15. In October 2010 the court ordered an expert assessment of the applicant’s and the children’s father’s capacity for exercising their parental role. On 13 January 2011 the expert submitted his report, which concluded: - that the father displayed no psychiatric illness and that despite his fragile personality he was capable of shouldering his responsibilities; - that the applicant suffered from a “borderline personality disorder which interfered, to a limited extent, with her ability to shoulder responsibilities linked to her role as a mother”; - that the children were hyperactive, largely as a result of the family’s difficulties. In his conclusions, the expert pointed out that both parents were willing to accept any intervention required to improve their relationship with their children, and he made the following proposals: extending the children’s placement in public care, introducing a programme of bringing the parents and the children together, and intensifying encounters. He also suggested that the situation of the family should be reassessed six months later. 16. By decision of 1 March 2011, however, the court declared the children available for adoption, and the meetings between the parents and the children were discontinued. In its reasoning, the court stated that no reassessment of the family’s situation was necessary in the present case. It highlighted the parents’ difficulties in exercising their parental role, as indicated by the expert, and referred to the statements of the Director of the institution to the effect that the applicant had “serious mental disorders”, the father “was unable to show affection and spent his time arguing with the welfare assistants” and the parents “were incapable of providing their children with the care and treatment which they needed”. Having regard to those facts, the court declared the children available for adoption. 17. The applicant and the children’s father appealed against that decision and requested a stay of execution. They submitted: – that the court had erroneously declared the children available for adoption in the absence of any “abandonment”, a precondition for such a declaration under Law No. 184 of 1983; – that the declaration of availability for adoption should only be used in the last resort and that in the present case it was unnecessary because their family difficulties, which stemmed, in particular, from the applicant’s illness, were temporary and could be overcome with the welfare assistants’ support. Finally, they emphasised that the court had not taken into account the January 2011 expert report ordering the establishment of a programme of support and gradual reunion of the children with their parents. 18. In July 2011 the court ordered that each child be placed in a different foster family. 19. By decision of 7 February 2012 the Rome Court of Appeal dismissed the applicant’s appeal and upheld the declaration of availability for adoption. The Court of Appeal observed that the competent authorities had expended the requisite efforts to provide support to the parents and prepare the children’s return to their family. However, the project had failed, which showed the parents’ incapacity for exercising their parental role and belied the temporary nature of the situation. With reference to the social services’ findings, the Court of Appeal emphasised that the failure of the project had had negative consequences for the children and that the declaration was geared to protecting their interest in being fostered in a family capable of properly caring for them, which their family of origin was incapable of doing owing to the mother’s state of health and the father’s difficulties. The Court of Appeal noted that there had been some positive developments in the situation, such as the mother’s realisation of her health problems and her determination to undergo treatment, as well as the father’s efforts to find resources in order to look after his children and the availability of the grandfather to help out. However, the Court of Appeal held that those factors were insufficient to assess the two parents’ capacities for exercising their parental responsibilities. Having regard to those factors, and with an eye to safeguarding the children’s interests, the Court of Appeal also confirmed their availability for adoption. 20. The applicant and the children’s father lodged an appeal on points of law. By judgment deposited in the registry on 22 January 2014, the Court of Cassation dismissed the applicant’s appeal on the grounds that: – the Court of Appeal had correctly assessed the existence of a situation of psychological abandonment of the children and the irreversibility of the parents’ incapacity for exercising their role, having regard to the failure of the first support project put in place by the social services; – the declaration of availability for adoption had duly taken into account the children’s interest in being fostered by a family capable of looking after them effectively. 21. In February 2014 the applicant requested the Rome Youth Court to cancel the declaration of the children’s availability for adoption (on the basis of section 21 of Law No. 184 of 1983). In support of her request, the applicant presented various medical documents attesting that her state of health had improved in the meantime, in order to prove that the conditions set out in section 8 of Law No. 184 of 1983 for issuing a declaration of availability for adoption has since lapsed. By a decision of 14 May 2014 the Rome Youth Court dismissed the applicant’s request. 22. The outcome of the adoption procedure concerning the children is unknown. | 1 |
test | 001-148138 | ENG | BGR | ADMISSIBILITY | 2,014 | AGONTSEV v. BULGARIA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicant, Mr Venko Nikolov Agontsev, is a Bulgarian national who was born in 1967 and lives in Varna. He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 2. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Kotseva and Ms L. Gyurova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 22 September 2002 the prosecution authorities in Varna opened criminal proceedings in relation to the murder of Mr O.K. On 11 November 2002 the applicant was arrested and charged with instigating the murder. On 12 November 2002 he was placed in pre-trial detention, where he remained until 23 June 2003 when the Varna Regional Court ordered his release on bail. The amount of bail was set at 10,000 Bulgarian levs (BGN), which was paid by Ms N.G. On 26 June 2003 the applicant was released. 5. The preliminary investigation into Mr O.K.’s death continued until 31 October 2005, when the applicant and several other individuals were indicted and sent to trial. 6. In a judgment of 29 March 2007 the Varna Regional Court convicted the applicant of aiding and abetting Mr O.K.’s murder and sentenced him to sixteen years’ imprisonment. 7. After delivery of the judgment, in a decision given at the same hearing, referring merely to the “degree of dangerousness of the offence committed and its [perpetrators], and the type and severity of the punishment imposed”, the Varna Regional Court ordered that the applicant be placed once again in custody. He was detained at the end of the hearing. 8. On 4 April 2007 the applicant appealed against his placement in custody, pointing out that while on bail he had not attempted to abscond or obstruct the investigation. On 21 April 2007 the Varna Court of Appeal declared his appeal inadmissible, noting that at that stage of the proceedings a decision ordering placement in custody could not be challenged separately from the judgment on the merits. 9. In his initial application to the Court, the applicant stated that following his detention he had not been able to recover the bail paid in 2003. However, after communication of the application the respondent Government submitted documents showing that on 3 May 2007 a representative of Ms N.G. had requested that the bail be returned to her. On 19 September 2007 the representative presented a power of attorney, and the next day the Varna Regional Court ordered the Regional Investigation Service to pay the sum back. 10. Following appeals by the accused, on 30 January 2008 the Varna Court of Appeal quashed the Varna Regional Court’s judgment of 29 March 2007 and remitted the case. On 1 July 2008, following a fresh examination, the lower court acquitted the applicant and ordered his release with immediate effect. 11. Following further appeals by the prosecution, on 25 March and 28 December 2009 respectively, the Varna Regional Court’s judgment was upheld by the Varna Court of Appeal and the Supreme Court of Cassation. 12. The relevant provisions of domestic law concerning remedies for excessive length of proceedings have been summarised in the Court’s decisions in the cases of Balakchiev and Others v. Bulgaria ((dec.), no. 65187/10, §§ 18-37, 18 June 2013) and Valcheva and Abrashev v. Bulgaria ((dec.), nos. 6194/11 and 34887/11, §§ 47-66, 18 June 2013). | 0 |
test | 001-174403 | ENG | LTU | CHAMBER | 2,017 | CASE OF KOSTECKAS v. LITHUANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1979 and lives in Šiauliai. 6. On 17 February 2007, at around 12.30 a.m., the applicant and his friends, J.J., A.D. and D.R., arrived at a petrol station near the town of Skuodas. While they were waiting in line at the petrol station’s shop, another group of men, who were not known to them, arrived at the shop and attempted to skip the queue, leading to an argument between the two groups. After they had all left the shop, some of the men started beating J.J. in the petrol station’s parking lot. When the applicant tried to help his friend, the men punched the applicant in the face and head several times, causing him to fall to the ground, where they kicked him in the head. According to the applicant, the assault lasted a couple of minutes and he was hit about ten times. 7. On the day of the incident the Skuodas police (hereinafter “the police”) opened a pre-trial investigation, interviewed the applicant and granted him victim status. On unspecified dates J.J., A.D. and D.R. were also granted victim status. 8. On 19 February 2007 the applicant was examined by a court medical expert. The expert found contusions on the applicant’s face and head, and determined that they could have been caused by at least four blows with a hard, blunt object. The expert concluded that the injuries corresponded to negligible health impairment (nežymus sveikatos sutrikdymas) and that they could have occurred at the time and in the circumstances described by the applicant (see paragraph 6 above). 9. On 13 March 2007 the police identified two suspects, E.G. and R.B., and notified them that they were suspected of disturbing the public order, contrary to Article 284 § 1 of the Criminal Code (see paragraph 25 below). On 13 June 2007 a third suspect, S.G., was identified and notified of the same suspicion. 10. On 20 March 2007 the applicant joined the proceedings as a civil party. He claimed 10,000 Lithuanian litai (LTL – approximately 2,896 euros (EUR)) in pecuniary and non-pecuniary damages jointly from all the suspects. 11. On 7 June 2007 a court medical expert again examined the applicant and his medical file. The expert found that a few days after the incident the applicant’s doctor had detected a fracture in the applicant’s nose, without any displacement of the bone (nosies kaulo lūžiai be dislokacijos), and that the applicant had been granted sick leave from work for four days. The expert concluded that the injury corresponded to negligible health impairment. 12. On 28 December 2007 E.G., R.B. and S.G. were notified that they were also suspected of causing negligible health impairment or physical pain to other persons by violent acts, contrary to Article 140 § 1 of the Criminal Code (see paragraph 25 below). 13. In the course of the pre-trial investigation, the police interviewed twelve witnesses, examined the victims’ clothes and other items, obtained a video recording of the incident from the petrol station, and carried out various other investigative measures. On 16 July 2007 the suspects and the victims were informed that the pre-trial investigation had been completed. 14. On 10 January 2008 the Skuodas District Prosecutor (hereinafter “the prosecutor”) issued an indictment against E.G., R.B. and S.G., charging them with the crimes set out in Articles 140 § 1 and 284 § 1 of the Criminal Code. 15. On 12 August 2008 at the applicant’s request the Skuodas District Court ordered an additional medical examination of his injuries in order to determine whether there had been any further deterioration of his health. On 18 December 2008 the applicant was examined by a court medical expert. The expert found that although a few months previously the applicant had been diagnosed with inflammation of the auditory nerves, that condition was not related to the injuries sustained during the incident of 17 February 2007. 16. On 17 December 2009 the Skuodas District Court convicted E.G., R.B. and S.G. of the crimes set out in Articles 140 § 1 and 284 § 1 of the Criminal Code. The court considered that the charges had been proven by victim and witness testimony, the confessions of the accused, and the video recording from the petrol station’s camera. E.G., R.B. and S.G. were given suspended prison sentences ranging from twelve to eighteen months. The applicant’s civil claim was granted in part and he was awarded LTL 6,000 (approximately EUR 1,738) in non-pecuniary damages. 17. The convicted persons and the victims, including the applicant, appealed against the district court’s judgment. On 25 February 2010 the Klaipėda Regional Court quashed the judgment because of grave breaches (esminiai pažeidimai) of the Code of Criminal Procedure (see paragraphs 2829 below). The Klaipėda Regional Court held that the district court had not based its judgment on circumstances examined at the hearing but solely on the description of the charges in the indictment. It also held that the district court had not assessed all the testimony and other evidence in detail and had not explained why some evidence had been considered reliable and some not. The Klaipėda Regional Court concluded that such breaches had affected the district court’s impartiality. As a result, the case was remitted to the Skuodas District Court for re-examination. 18. On an unspecified date the prosecutor amended the indictment and charged E.G., R.B. and S.G. only with disturbing public order, contrary to Article 284 § 1 of the Criminal Code. 19. On 5 May 2011 a different panel of the Skuodas District Court, after re-examining the case, convicted E.G., R.B. and S.G. of the charges against them and gave them suspended prison sentences ranging from twelve to eighteen months. The applicant’s civil claim was granted in part – he was awarded LTL 124.45 (approximately EUR 36) in pecuniary damages consisting of travel expenses to attend court hearings, LTL 5,000 (approximately EUR 1,448) in non-pecuniary damages and LTL 5,000 in legal costs. The court also held that the applicant had the right to claim further pecuniary damages from the convicted persons in separate civil proceedings. 20. The convicted persons and one of the victims, J.J., appealed against the district court’s judgment. On 5 August 2011 the Klaipėda Regional Court quashed the judgment because of grave breaches of the Code of Criminal Procedure (see paragraphs 27 and 29 below). It found that the district court had not made any findings in respect of one of the victims, D.R., and had thereby breached D.R.’s rights and those of the accused. The Klaipėda Regional Court also held that the district court had not examined whether two of the accused, R.B. and S.G., had disturbed public order, as submitted in the amended indictment. Rather, the district court had examined whether R.B. and S.G. had assaulted the victims, thereby de facto changing the charges against them and violating their right to defend themselves. The Klaipėda Regional Court concluded that such breaches had affected the district court’s objective impartiality, and the case was again remitted to the Skuodas District Court for re-examination. 21. On 26 March 2012 a different panel of the Skuodas District Court held that the five-year statute of limitations (see paragraph 26 below) had expired and discontinued the case as time-barred, leaving the victims’ civil claims unexamined. The victims, including the applicant, appealed against that decision, arguing that the court had erred by applying the statute of limitations because the legal classification of the charges had been incorrect. However, on 28 June 2012 the Klaipėda Regional Court dismissed their appeal, finding that the legal classification of charges was the prerogative of the prosecutor and that the Code of Criminal Procedure did not provide for any possibility to continue criminal proceedings after the expiry of the statute of limitations. 22. After the discontinuation of the criminal proceedings, the applicant submitted a civil claim against E.G., R.B. and S.G. He claimed LTL 12,170 (approximately EUR 3,525) in pecuniary damages, consisting of the salary which he had allegedly lost while attending court hearings in the criminal proceedings, travel expenses to attend those hearings, and legal costs sustained in the criminal proceedings. He also claimed LTL 300,000 (approximately EUR 86,886) in non-pecuniary damages. 23. On 20 February 2013 the Skuodas District Court granted the applicant’s civil claim in part. It examined the evidence which had been collected in the criminal proceedings and on that basis concluded that E.G., R.B. and S.G. had caused damage to the applicant by their deliberate actions. However, the court considered that the applicant had not proven the pecuniary damage claimed and awarded him LTL 124.45 (approximately EUR 36) under that head on the basis of petrol receipts he had submitted. The court further observed that the applicant’s nose had been broken and that he must have suffered a certain amount of inconvenience owing to the need to attend numerous court hearings; however, the injury had not caused him any long-term physical or psychological damage. On those grounds, the court awarded the applicant LTL 7,000 (approximately EUR 2,027) in nonpecuniary damages. 24. The applicant appealed against that judgment, and on 4 July 2013 the Klaipėda Regional Court partly upheld his appeal. It found that the district court had erred in refusing to award the applicant pecuniary damages related to the legal costs which he had incurred in the criminal proceedings, and granted him LTL 5,000 (approximately EUR 1,448) under that head, thereby increasing the total amount of pecuniary damages to LTL 5,124.45 (approximately EUR 1,484). The amount of non-pecuniary damages was left unchanged. | 1 |
test | 001-154764 | ENG | NLD | ADMISSIBILITY | 2,015 | OVRAN AND OTHERS v. THE NETHERLANDS | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The first applicant, Orde van Register Adviseurs Nederland (Association of Chartered Advisers Netherlands, “OvRAN”) is an association under Netherlands law based in Wassenaar. Mr Antonius Johannes Boer was born in 1946 and lives in Delft; Mr Nicolaas Plug was born in 1948 and lives in Noordwijk; Mr Cornelis Bernardus Antonius Spil was born in 1941 and lives in Deventer; and Mr Rein Wierdsma was born in 1965 and lives in Leeuwarden. All four individual applicants are Netherlands nationals and all state their occupation as “Accountant/Consultant”. The applicants are represented by Mr A.W. Eikelboom, a lawyer practising in Amsterdam. 2. 3. In the Netherlands, accountants are either chartered accountants (registeraccountants) or accountants-administrative consultants (accountants-administratieconsulenten) depending on their training and qualifications. Both chartered accountants and accountants-administrative consultants are required to be members of their respective professional organisations, the Netherlands Institute of Chartered Accountants (Nederlands Instituut van Registeraccountants, “NIvRA”) and the Netherlands Association of Accountants-Administrative Consultants (Nederlandse Orde van Accountants-Administratieconsulenten, “NOvAA”). 4. In 2009, a group of chartered accountants who were displeased by particular developments which they perceived within NIvRA, set up a separate professional organisation, which following a name change was called OvRAN by the time of the events complained of, intending it to be an alternative to NIvRA. Membership of OvRAN was open to members and former members of both NIvRA and NOvAA. 5. NIvRA and NOvAA brought actions against OvRAN in the civil courts, the result of which was that OvRAN and those of its members who were not also members of NIvRA or NOvAA were no longer permitted to use the title “accountant” or perform statutory audits. No details have been given of these proceedings. 6. On 19 October 2009 OvRAN, represented by the applicant Mr Spil as its president, wrote to the Director of Financial Markets within the Ministry of Finance asking for: an interpretation of section 1(4) of the Chartered Accountants Act and section 2(4) of the Accountants-Administrative Consultants Act (see below) in order that its members be entered on the registers of chartered accountants or accountants-administrative consultants, as the case might be, and permitted to use the title “accountant”, without having to be members of NIvRA and NOvAA; and the application of section 28 of the Organisations of Accountants (Supervision) Act (Wet toezicht accountantsorganisaties) in order that its members be permitted to carry out legal audits. 7. On 19 November 2009 the Director of Financial Markets sent a reply to the effect that only the courts could give a binding interpretation of legislation and pointing to the status of NIvRA and NOvAA as public bodies invested with delegated legislative powers. 8. On 30 November 2009 OvRAN lodged objections (bezwaarschriften) against the letter of the Director of Financial Markets, invoking Article 11 of the Convention and denouncing certain actions of NIvRA and NOvAA as unethical. 9. On 18 December 2009 the Director of Financial Markets dismissed the objections. The refusal to give an interpretation of statutory provisions was not a “decision” in the sense of having an intended legal effect, which meant that an objection against it was inadmissible. Objections and appeals against a refusal to adopt statutory or delegated legislation were ruled out by the General Administrative Law Act (Algemene wet bestuursrecht; see below). 10. On 21 January 2010 OvRAN lodged an appeal with the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven), citing the Minister of Finance as the defendant. It relied on the same grounds as in the objection proceedings and additionally on Article 13 of the Convention. OvRAN asked for its appeal to be joined with related appeals lodged by the applicants Mr Boer, Mr Plug and Mr Spil. 11. The Industrial Appeals Tribunal gave its decision on 15 February 2011. It held that the Minister of Finance had rightly taken the view that the letter of 19 November 2009 did not comprise a decision within the meaning of section 1:3 of the General Administrative Law Act. Nor could the applicants rely on Article 13, since legal remedies were available through NIvRA and NOvAA. The appeal was therefore inadmissible. 12. As relevant to the case, the Civil Code at the relevant time provided as follows: “1. The legal person shall commission a chartered accountant or an accountant-administrative consultant in relation to whom a note as referred to in section 36(3) of the Accountants-Administrative Consultants Act has been added to the entry in the register referred to in section 36(1) of that Act to audit its annual accounts. An organisation in which eligible accountants cooperate may be commissioned. ...” 13. Provisions of the Chartered Accountants Act (Wet op de Registeraccountants) relevant to the case were the following: “1. There shall be an association of chartered accountants, by the name of Netherlands Institute of Chartered Accountants [i.e. NIvRA], hereinafter the Association. Its members shall be those entered in the register of accountants referred to in section 55. 2. The Association shall be based in Amsterdam. It shall be a public body within the meaning of Article 134 of the Constitution. 3. The task of the Association shall be the promotion of the proper exercise by chartered accountants of their profession and the protection of their common interest. ... Its task shall also include caring for the honour and position of chartered accountants and organising, or causing to be organised, the [obligatory three-year] traineeship ... 4. In derogation from the first paragraph, those entered in the register of chartered accountants under section 58(b) in conjunction with section 59(2) [i.e. chartered accountants with a license to audit delivered by another Member State of the European Union or European Economic Area] shall be members of the Association only if they have expressed such a wish in writing to the governing body of the Association.” “1. The general meeting shall make the bye-laws which it considers necessary to fulfil the task set out in section 1. 2. For the proper exercise of chartered accountants’ professional activities, the general meeting shall set professional rules and rules of conduct in a bye-law, which shall be binding on all those who are entered in the register referred to in section 55. ...” “1. There shall be a register of accountants, in which those who meet the standards set by this Act shall be entered at their request. ...” “A person who is entered in the register referred to in section 55 has the right to use the title chartered accountant and its abbreviation (registeraccountant, afgekort RA). “It is forbidden a person who is not entered in the register of accountants referred to in section 55 to use the title chartered accountant without any addition or in any composite or abbreviated form, or to behave in such a way that the public must reasonably be under the impression that he is entitled to use that title.” 14. Provisions of the Accountants-Administrative Consultants Act (Wet op de Accountants-Administratieconsulenten) relevant to the case were the following: “1. There shall be an Association of Accountants-Administrative Consultants [i.e. NOvAA], whose members shall be those entered in the register of accountants referred to in section 36. 2. The Association shall be based in The Hague. It shall be a public body within the meaning of Article 134 of the Constitution. 3. The task of the Association shall be the promotion of the proper exercise by accountants-administrative consultants of their profession and the protection of their common interest. ... Its task shall also include caring for the honour and position of Accountants-Administrative Consultants and organising, or causing to be organised, the [obligatory three-year] traineeship ... 4. In derogation from the first paragraph, those entered in the register of chartered accountants under section 58(b) in conjunction with section 59(2) [i.e. chartered accountants with a license to audit delivered by another Member State of the European Union or European Economic Area] shall be members of the Association only if they have expressed such a wish in writing to the governing body of the Association.” “1. The general meeting shall make the bye-laws which it considers necessary to fulfil the task set out in section 2(3). 2. For the proper exercise of accountants-administrative consultants’ professional activities, the general meeting shall set professional rules and rules of conduct in a bye-law, which shall be binding on accountants-administrative consultants. ...” “1. The rules prescribed in the bye-law referred to in section 24(2) relating to the exercise of professional activities concerning the carrying out of legal audits by accountants-administrative consultants within the meaning of section 1(j) of the Organisations of Accountants (Supervision) Act shall have the same content as the rules thereto pertaining set out in the bye-law referred to in section 24(2) of the Chartered Accountants Act. 2. For the purpose of implementing the first paragraph a draft of the provisions thereto pertaining shall be drawn up by a committee consisting of an equal number of members of the Netherlands Institute of Chartered Accountants and the Netherlands Association of Accountants-Administrative Consultants. ...” “1. There shall be a register of accountants, in which those who meet the standards set by this Act shall be entered at their request as accountants-administrative consultants. ... 3. When entering a person who [meets the necessary standards of training and professional competence] a note shall be added indicating that he may be commissioned to audit annual accounts as referred to in Article 2:393 § 1 of the Civil Code. ...” “A person who is entered in the register referred to in section 36 has the right to use the title accountant-administrative consultant and its abbreviation (accountant-admministratieconsulent, afgekort AA). “It is forbidden a person who is not entered in the register referred to in section 36 to use the title accountant-administrative consultant without any addition or in any composite or abbreviated form, or to behave in such a way that the public must reasonably be under the impression that he is entitled to use that title.” 15. As relevant to the case before the Court, the Organisations of Accountants (Supervision) Act provided as follows: “An external accountant shall be a chartered accountant or an accountant-administrative consultant in relation to whom a note has been added in the register as referred to in section 36(3) and who complies with the rules set by or under the Chartered Accountants Act or the Accountants-Administrative Consultants Act in so far as these relate to the commissioning or carrying out of a legal audit.” “Section 27 may be declared ineffective by statutory instrument (algemene maatregel van bestuur) with a view to securing the public function of the audit statement.” 16. As relevant to the case, the General Administrative Law Act provides as follows: “1. The expression ‘decision’ shall be understood to mean: a written decision of an administrative organ comprising a legal act under public law. ...” “For the purpose of applying legal provisions on objection and appeal proceedings, the following shall be equated with a decision: (a) a refusal to take a decision;...” No appeal can be lodged against: (a) a decision comprising a generally binding prescription or a policy rule; ...” | 0 |
test | 001-169957 | ENG | NOR | CHAMBER | 2,016 | CASE OF SAGVOLDEN v. NORWAY | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Public hearing);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev | 5. On 26 March 2004 the applicant acquired an apartment in Housing Cooperative (“borettslag”) X. At her request, on 29 March 2004 its Governing Board (hereinafter “the Board”) approved the applicant’s acquisition. Before she moved in, the Board became aware that the applicant’s son, Mr A, had caused serious problems in Housing Cooperative Y, where the applicant had previously been part owner and resident and where in recent years her son had cohabited with her. Housing Cooperative X therefore became particularly concerned that only the applicant move into the cooperative and informed her that it contemplated withdrawing its approval of her as a part owner. It asked her to make a written undertaking to the effect that Mr A would not move to the apartment in X. In this connection, the Board referred to the fact that in her request for approval of her part ownership she had indicated that her household would consist of one person. 6. After a brief exchange of correspondence between Housing Cooperative X and the applicant’s Attorney B., he stated in a letter of 26 May 2004 that “[o]n behalf of [the applicant] it is hereby confirmed that it is she, not her son [Mr A] who will move into the apartment nr 2036 in Z Street 14 C as soon as it will be ready for takeover on 5 July 2004”. The letter further confirmed the correctness of the information previously provided that the household would “consist of one person”. Against this background, the Board maintained its earlier approval of the applicant as a part owner. 7. By a letter of 23 May 2006, Attorney K., on the behalf of the Housing Cooperative, pointed out to the applicant that Mr A seemed to have moved to her apartment, in breach of the conditions for the approval of her as part owner. K. referred to the fact that the Board over a long period had received several complaints regarding Mr A’s conduct at the Housing Cooperative and to his conviction by Oslo City Court (tingrett) of 10 March 2006 for violent assault and frightening and disturbing behaviour vis-à-vis neighbours at Z Street 14 B and 14 C; and the fact that it followed from the judgment that Mr A’s residence was Z Street 14 C. In a letter of 2 June 2006 Attorney B. disputed inter alia that Mr A had an address in Z Street 14 C. 8. On 2 September 2008, the Board held a meeting. According to the minutes it was decided that its “secretary was to inform Attorney [K.] of the new situation and to request him to initiate eviction proceedings against Sagvolden”. 9. On 14 April 2009, Attorney K. sent to the applicant on behalf of the Housing Cooperative a letter ordering her to sell her part (salgspålegg) in accordance with section 5-22 of the Housing Cooperative Act 2003 (burettslagslova, see paragraph 75 below). K. referred to his previous correspondence and to Mr A’s conviction by the City Court of 23 June 2008 (see paragraph 18 below), by which he was sentenced to eighteen days’ imprisonment for violent assault and frightening and disturbing behaviour vis-à-vis neighbours in Housing Cooperative X. He further referred to the fact that Mr A on several occasions had been imposed judicial restraining orders prohibiting him to contact four members of the Housing Cooperative, the last such order with effect until 5 April 2009 (see paragraph 38 below). Attorney K. added that the conditions for eviction under section 5-23 had been fulfilled, but that for the time being it had been deemed sufficient to order sale of the apartment. 10. Upon expiry of the three month time-limit for sale, set pursuant to section 5-22 of the Housing Cooperative Act, Attorney M., who had succeeded Attorney B. as the applicant’s representative, responded by a letter of 15 July 2009 that the order of sale would not be complied with. 11. On 29 December 2005 Mr A had been indicted under Article 390A of the Penal Code for having by frightening or disturbing behaviour or other inconsiderate behaviour violated the right of another person to be left in peace. According to the indictment: “(a) At 00h00 on Friday, 29 July 2005, at [Z Street] 14B, Oslo, he came walking fast towards Mr [H.F.] and told him that ‘he ought to watch out’ and ‘that he would keep an eye on him’. These affirmations were in the circumstances frightening to Mr [H.F.]. (b) On Saturday, 30 July 2005, at [Z Street] 14C, Oslo, he told Mrs [T.L.B.]: ‘The vengeance is sweet, the vengeance is best cold, it may happen anytime and anywhere, it may not necessary be me directly.’ This statement was in the circumstances frightening to Mrs [T.L.B.]. (c) On Monday, 12 September at [Z Street] 14C, Oslo, he contacted Mrs [T.L.B.] and stated amongst other things: ‘Watch out, you have not seen anything yet’. This statement was in the circumstances frightening to Mrs [T.L.B.]” He was also indicted under Article 228(1) (later changed to Article 282(2)) of the Penal Code for having committed violent assault against another person or in any other way having assailed him bodily: “At 16h00, on Sunday, 13 November 2005 at [Z Street] 14C, Oslo, he grabbed the arms of Mr [C.B.] [son of Mrs T.L.B.] and flung him around making him fall on a bicycle. Thereafter he again grabbed him and pushed him into a wall.” 12. By an additional indictment of 10 February 2006, Mr A was indicted with another offence under Article 390A of the Penal Code: “At around 11.30 a.m. on Wednesday, 21 December 2005, outside the shopping mall in [Y Road], he went towards Mr [E.L.] as the latter came out of the shopping mall carrying a full shopping basket on his way to his car. He followed Mr [E.L.] while talking to him loudly and went up to his face while stating inter alia ‘I will beat the shit out of you ... you fat donkey’, or similar. He placed himself in front of the car, thus preventing Mr [E.L.] from putting his shopping items inside his car, while affirming ‘I won’t move’.” 13. In a judgment of 10 March 2006, the City Court, after holding an oral hearing at which Mr A was represented by a lawyer and witnesses were heard, convicted Mr A of the charges and sentenced him to 120 days’ imprisonment. The sentence included the conditional part of a sentence imposed by the City Court in a judgment of 31 October 2003 by which Mr A had been convicted of an offence under Article 390A of the Penal Code. 14. In meting out the sentence, the City Court attached considerable weight to the fact that Mr A had twice (last time in 2003) been convicted for a number of offences of a similar nature, that he had actively approached the victims, and that his conduct to a great extent affected people in their homes and closest environment, thereby destroying the victims’ and their families’ feeling of safety and wellbeing at their homes and in the near vicinity. A further aggravating factor was the extent, the intensity and duration of his conduct and Mr A’s inability and unwillingness to cease his criminal conduct. 15. Mr A did not lodge an appeal against his above conviction and sentence which thus became final. 16. On 22 January 2008 Mr A was inter alia indicted under Article 228(1) of the Penal Code for having committed the following violent assaults: “(a) At around 12h00, on Wednesday, 25 April 2007, at Z Street 14C, Oslo, he took a strangulation grip on T.L.B. (b) At around 21h15 on Wednesday, 12 September 2007, outside Z Street 14B, Oslo, he punched Mr H.F. in his chest with a clenched fist. ...” 17. In an additional indictment of 14 April 2008, Mr A was charged under the same provision as follows: “At around 18h15 on Saturday, 12 January 2008, in the staircase of the garage building of Z Street 14C, Oslo, he hit and/or pushed Mr D.H. in the chest with clenched fists so that the latter fell backward towards a wall, whereupon he pulled Mr D.H. by his arm/or jacket into the building.” 18. By a judgment of 23 June 2008, the City Court convicted Mr A of the above charges. It found proven, not that he had taken a strangulation grip on Mrs T.L.B., but that he had intentionally pushed her against a door or a wall with one hand; that he had pushed Mr H.F. or hit him in his chest but not that he had hit him hard; and that he had held around Mr D.H.’s chest and had pushed him against the wall, both in the staircase and in the garage but that he had not hit Mr D.H. The City Court observed that, while all three offences would normally warrant the imposition of fines, Mr H.F.’s advanced age and frailness were an aggravating factor as were the number of the offences adjudicated as well as the fact that Mr A had been convicted in the past for similar and in part more serious offences. He had moreover not understood the gravity of his actions. The City Court sentenced Mr A to eighteen days’ imprisonment. 19. Mr A did not lodge an appeal against the above judgment which thus became final. 20. On 2 September 2009 the Housing Cooperative issued a warning of compulsory sale (section 4-18 of the Enforcement Act, tvangsfullbyrdelsesloven) and on 1 October 2009 it instituted proceedings against her before the relevant section (Oslo byfogdembete) of the Oslo City Court (tingrett), to obtain an order of compulsory sale of her apartment, from a specialised judge entrusted inter alia with such matters. 21. The applicant, represented by the same lawyer as before the European Court, reiterated that according to section 4-8 of the Housing Cooperative Act the case ought to be examined under an ordinary procedure (i søksmåls former – which in principle included an oral hearing if the respondent’s objections against compulsory sale was not “clearly groundless”). In her written pleadings she sought to address this question legally and factually, while pointing out that a complete presentation of evidence would be made at a later stage (i behandlingen av søksmålet). She submitted notably as follows. 22. In the first place the applicant requested the City Court to dismiss the case on the ground that the Board’s decision had not provided a legal basis for Attorney K. to initiate proceedings against her for compulsory sale. The decision had stated “Sagvolden”, not Torill Sagvolden, and “eviction”, not compulsory sale (see paragraph 8 above). 23. She also argued that it would create an unreasonable situation if the Housing Cooperative X’s interest in her removal were to carry more weight than her needs at the age of eighty in not being put on the street. She had previously moved from the previous Cooperative Y to Cooperative X and had left old disputes behind her. However, because of a warning system within the OBOS system (a cooperative building association owned by its 330.000 members and which included both Cooperatives), already before moving into X she had been persecuted by allegations related to Y. There would hardly be any alternative for her. The situation had evolved over time and she ought to be entitled to admit Mr A in her household. Due to her age, she had become increasingly dependent on his assistance. 24. The criminal matters pertaining to Mr A dated far back in time and could not justify compulsory sale, especially since the situation had improved and both the applicant and Mr A were open to negotiate on other appropriate default measures. The most recent offence dated from January 2008. The decisions on restraining orders (see paragraph 38 below) could not carry any weight since the threshold for prohibition on contact was low and did not require a preponderance of probabilities. The alleged harassment and threats was in great part due to a paranoid perception of some of the neighbours. 25. The applicant requested the City Court, before conducting any procedure on the merits, to first decide on her request that the case be dismissed. 26. By a decision (kjennelse) of 26 April 2010, the City Court upheld the Housing Cooperative X’s request for an order of compulsory sale of the applicant’s apartment, to be carried out by an official assistant (medhjelper). 27. The City Court first dismissed the applicant’s contention that there was no decision by the Board which could constitute a basis for compulsory sale. The mention in the decision of “Sagvolden” could not be understood in any other way than as referring to the applicant. From section 5-23 of the Housing Cooperative Act, it clearly followed that it was the applicant, as the owner of the apartment in question, who was the person whom the Housing Cooperative ought to address in all cases concerning the owner’s duties and responsibilities. It was the owner’s breach of such that could justify an eviction order. It followed from the case-law and legal doctrine that the owner was to be identified with the members of his or her household, both in the sense that faults on their part were relevant and that an eviction measure would also concern them; it was not possible to limit a request for an eviction order to concern only one or some of the members of a given household or to concern only the owner and not the other occupants. 28. The City Court further rejected the applicant’s argument that the Board’s decision did not concern compulsory sale (“tvangssalg”) but only eviction (“utkastelse”). The Housing Cooperative’s lawyer had stated that the Board was of the view that the conditions for eviction had been fulfilled but that the Cooperative had opted to limit its demand by initiating proceedings for compulsory sale. Since the Board’s decision on eviction implied compulsory sale, to proceed with the latter and less extensive measure first clearly fell within that decision. This did not exclude that a request for an eviction order be made subsequently. 29. No arguments had been raised by the applicant suggesting that the Housing Cooperative’s demand ought to be dismissed. Nor was there anything to indicate that Attorney K. had exceeded the powers conferred on him by the Board. 30. Moreover, no objection had been made as regards the contents of the plaintiff’s claim for an order of compulsory sale or about the requirements as to warnings. The formal requirements for seeking an order of compulsory sale had been fulfilled (sections 5-22 and 5-23 of the Act). 31. The condition for requiring sale was that the owner of the part in question had “substantially defaulted” his or her obligations (“misheld pliktene sine vesentleg”). The request for compulsory sale ought to be referred for examination according to the ordinary procedure applicable to ordinary appeals (which in principle include an oral hearing) if, within the statutory time limit, objections had been raised against compulsory sale that could not be regarded as “clearly groundless”. 32. The assessment of whether “substantial default” had occurred concerned not only the owner’s conduct but also that of other members of his or her household, as the owner undoubtedly ought to be identified with them. In the instant case, the circumstances that could justify enforcement measures related to the conduct of Mr A. 33. In this regard, the City Court observed that it was undisputed that the reason why the applicant had been obliged to leave her apartment in Housing Cooperative Y had been the serious problems that her son had caused there. In applying to the Board of Housing Cooperative X for its approval to become a new part owner, she had requested approval for one person only. Accordingly, it ought to be assumed that only she would occupy the apartment. Before moving in, she had confirmed through her lawyer that her household consisted of one person. Previously she had written to the Housing Cooperative X without replying to questions of whether her son would move in. It was only after the Housing Cooperative X’s request to the applicant of 19 May 2004 for confirmation that Mr A would not move to the estate that Attorney B. had responded in the affirmative by letter of 26 May 2004. She was then well informed that it was precisely the matters regarding her son which was the reason for the Board’s request for confirmation that he would not move into the flat. 34. According to section 16 of the then applicable Housing Cooperative Act, an approval of a new part owner could be withdrawn within a year if the owner had provided inaccurate, or withheld, substantial information and the owner ought to have been aware of this. In view of the situation at the material time and the applicant’s confirmation, the Housing Cooperative X could assume that the applicant had committed herself to moving in alone and in any event without her son. Both the Board’s approval and her confirmation had dated approximately six years back in time and it was only at present that she for the first time had alleged that the Housing Cooperative had forced her to make the said declaration by threatening to take unlawful action. On this point, the City Court observed that the only measure which the Housing Cooperative X contemplated was to refuse approval of the applicant as a new part owner and there was nothing to indicate that it had been unlawful to envisage such a measure. 35. Furthermore, where the board of a Housing Cooperative had become aware that problems with a part owner had occurred in another Housing Cooperative, it ought to be able to take the matter into account in its assessment of whether or not to approve that person as a new part owner. There were no elements to suggest that the information received by Housing Cooperative X had been obtained in an unlawful manner. Whether and to what extent any outsiders had acted unlawfully was not for the City Court to consider in the present case. 36. It was unclear at what time Mr A had moved into the applicant’s apartment. According to the Oslo City Court’s judgment of 10 March 2006, Mr A had stated that he was living in Z Street 14C. From the same judgment it appeared that the criminal offences for which he was convicted had occurred in Z Street 14B and 14C in July 2005. It was also undisputed by the applicant that she had been cohabiting with Mr A in her apartment for an extended period. However, since the applicant, as a part owner, was responsible for the conduct by members of her household as well as her visitors, it was not decisive when Mr A had moved in. 37. The City Court noted that it was clearly established that Mr A, by the judgments of 10 March 2006 and 23 June 2008 respectively, had been convicted of having committed violent assault and frightening behaviour against three neighbours at Z Street 14B and 14C. The episodes in the 2006 judgment had occurred on 29 and 30 July, 12 September and 13 November 2005. The 2006 judgment described inter alia Mr A as a person who perceived everyone in respect of whom there was a contradiction or a disagreement as being part of a conspiracy against him (for further details see paragraph 54 below). His use of violence was perceived as unprovoked. He had infringed people at their homes, in such a way as to destroy the victims’ and their families’ sense of safety and wellbeing at their homes and nearby. According to an assessment of Mr A made by a court appointed expert in 2003, he extensively and systematically had perceptions and experiences of conspiracy which were almost impossible to influence and which according to the 2006 judgment were still prevailing at that time. 38. The judgment of 23 June 2008 had concerned episodes from April and September 2007 and January 2008 involving violations of Article 228(1) of the Code of Penal Procedure. Also in this judgment it had been found proven that Mr A had generally behaved in an intensive and intrusive manner. He was tall and strong, went very close to the person with whom he wanted to discuss and shouted to them with a load and aggressive voice. He was moreover inclined to block the passage of people he wanted to talk to and had a low threshold for taking one step further and grab or push people. This he did in a manner which was so aggressive as to make people anxious of the possibility of further and more serious violence being perpetrated. In addition to the above-mentioned judgments, he had been imposed restraining orders by the police prohibiting him from visiting the following neighbours: - Ms T.L.B. and her children, for the period from 3 May 2007 to 3 May 2008; - Mr H.F., from 20 September 2007 to 20 September 2008; - Mr D.H., from 22 February to 22 August 2008; and - Mr J.-E.S., from 5 November 2008 to 5 April 2009. 39. All these matters showed a person who over a long period had displayed frightening and disturbing behaviour vis-à-vis a number of neighbours in the Housing Cooperative where he was living with his mother, and where the incidents had led to convictions and prohibitions on contact over longer periods. It was also undisputed that Mr A had reacted with a particularly high degree of intensity vis-à-vis the Board and some of its members. 40. As regards the applicant’s allegation that the conditions had improved and that both she and Mr A were prepared to negotiate on alternative default measures, the City Court noted that the Housing Cooperative’s communications to the applicant had led to tirades of phone calls and e-mails with accusations against members of the Board and complaints to different public institutions. This was also supported by the description made by the City Court in its judgment of 10 March 2006. As the applicant had failed to indicate what other appropriate default measures could consist of, the respondent Housing Cooperative could not be required to take further initiatives in this case. 41. Whether the conditions for ordering compulsory sale had been fulfilled essentially depended on whether substantial default and conduct in breach of section 5-23 had materialised at the time when the order of sale was issued (namely 14 April 2009). 42’s conduct had caused serious disturbance to other occupants and had violated section 5-23 of the Housing Cooperative Act. For this reason, the issuing of a warning before compulsory sale had not been a requirement. 43. In the City Court’s view the applicant’s interests on account of her old age ought not to carry more weight than those of other occupants in the Housing Cooperative. It found it established that her obligations as a part owner had been seriously defaulted, in any event since 2005. Whilst it was understandable that it was more difficult for a person aged eighty to find and move to a new home, this could not be decisive in this case where neighbours had been harassed over a number of years. Despite her own confirmation that she moved in alone, the applicant had let her son live in the apartment with all the problems this had caused to other occupants. Therefore, she ought to bear the consequences of her own choice even though this were to make it problematic for her to find another house within the OBOS Housing Cooperative system. 44. The Board’s decision on eviction had been taken on 2 September 2008, around two months after Mr A’s conviction of 23 June 2008 and eight months after his commission of one of the offences. This was his second conviction for offences committed against neighbours while the first had concerned offences committed in 2005. The Board had taken and followed up its decision with reasonable expedition. 45. Moreover, the applicant’s contention that the police had acted in breach of their duty of confidentiality, by providing information to Housing Cooperative X concerning Mr A in relation to Z Street 14 C, could have no bearing on the present case. 46. Considering all of the applicant’s pleas against compulsory sale as being “clearly groundless” in the sense of sections 5-22, cf. section 4-8(2) of the Act, the City Court upheld the Housing Cooperative’s claim and ordered that sale take place by an assistant. 47. The applicant appealed against the City Court’s decision to the Borgarting High Court (lagmannsrett), complaining of the former’s assessment of the evidence, its application of the law and procedure. Maintaining in the main her arguments before the City Court, she requested that the Housing Cooperative X’s action be dismissed; in the alternative, she argued that the request for compulsory sale was unlawful in that no evidence had been adduced to show that she had defaulted her obligations vis-à-vis the Housing Cooperative or, in any event, that any such default had been substantial. In the further alternative, she submitted that, after refusing to dismiss the suit, the City Court had failed to refer her case for examination according to the ordinary procedure (involving in principle an oral hearing) and had wrongly considered her objections against compulsory sale as being clearly groundless; therefore, she asked the High Court to quash the City Court’s decision and to refer the case back for re-examination in accordance with the ordinary procedure. The applicant submitted that she could not cope with the thought of having to move house again and that she never believed that she would have to do so. The apartment really suited her and the fact that her son lived with her had made her feel that she received the help and care she needed in daily life. 48. By a decision of 5 August 2010 the High Court rejected her appeal. From the outset it observed that sufficient light had been shed on the case for it to determine the appeal on the basis of the written case-file (Article 29-15(1) of the Code of Civil Procedure). 49. As regards the applicant’s allegations that the imposition of compulsory sale suffered from deficiencies, the High Court found it clear that the Board’s decision provided an adequate basis for notifying her of the measure in accordance with section 5-22 of the Housing Cooperative Act. 50. The High Court did not find it necessary to take a stance on whether the terms “eviction case” ought to be read as relating to the vacating of premises (compare paragraph 28 above). In that event, as also assumed by the City Court, it was obvious that there was a possibility to opt for the less intrusive measure, namely the imposition of an order to sell the flat. The above decision most probably was an acknowledgment of a request by the Board to its attorney to take the necessary steps to bring the Cooperative’s relationship with the applicant to an end. More than this could not be required, bearing in mind especially the long historical background to the case. 51. Nor could the applicant succeed with her argument that she had not been sufficiently identified because the Board only used her surname. As also pointed out by the City Court, as for proceedings concerning eviction it was also the situation for those on compulsory sale that only the owner of the part of the Housing Cooperative in question could be the addressee. It could not be assumed that any other intention lay behind the Board’s decision. 52. Finally, the High Court shared the City Court’s view that a prior warning had not been a prerequisite for obliging her to sell her part. Since, in accordance with the findings below, the conditions of serious disturbance and nuisance had been fulfilled for obliging her to vacate the flat pursuant section 5-23(1) of the Act, the requisite of prior warning under section 5-22(1) of the Act did not apply. 53. Like the City Court, the High Court found it established that the applicant’s son, Mr A, for years had displayed conduct vis-à-vis the household’s neighbours constituting serious disturbance and nuisance to them. The City Court judgments of 10 March 2006 and 23 June 2008 concerned several offences under Articles 228 and 390A of the Penal Code, all of which, but one, had been aimed at neighbours in the Housing Cooperative. 54. The High Court further considered that the matters in respect of which Mr A had been charged and convicted did not give the full picture of the conduct that had prompted the Housing Cooperative to react with default measures in regard to the applicant. In this connection the High Court pointed to the findings made by the City Court in its 2006 judgment, which stated: “Both from previous judgments and the statements given in this case, it emerged that the accused over many years had repeatedly contacted a number of neighbours and other persons with whom he considered he was in conflict. He had repeatedly levelled new accusations and more or less veiled threats against these persons and had in part made very serious and degrading remarks and descriptions. His conduct beyond this had also been perceived as disturbing, frightening and wholly unreasonably intense, both in form, extent and frequency. For instance, amongst other things, at times he was positioning himself more or less in the background in order to suddenly ambush by getting very close to and to some extent hindering the passage of the person he was talking to, while raising his voice and using threating body language and mimicking.” 55. The City Court had further referred to the fact that Mr A in connection with a criminal case in 2003 had undergone a thorough expert examination, which had inter alia concluded that he had extensive, systematic perceptions and experiences of conspiracy that were almost impossible to influence. Also the judgment of 2008 had described acts and conduct by Mr A that clearly corresponded to that description. 56. The High Court also noted that, during the period from 3 May 2007 until 5 November 2008, Mr A had been imposed restraining orders prohibiting him from contacting altogether four of his neighbours, the last such order having expired on 5 April 2009. 57. In the High Court’s assessment, the matters for which the applicant’s son had been convicted constituted by their nature, their number and the extent of the period in which they had been committed – namely from 29 July 2005 until 12 January 2008 – when seen as a whole, such default as fulfilled the conditions for requiring that the flat be vacated according to section 5-23(1) and the imposition of compulsory sale pursuant to section 5-22(1). This conclusion was further strengthened by the information that the incidents ought to be considered as a pattern of behaviour that was capable of creating an atmosphere of insecurity in the near environment. 58. Having reached this conclusion, the High Court found it unnecessary to examine whether Mr A’s moving into the applicant’s flat contrary to the declaration made on her behalf by Attorney B on 26 May 2004 amounted to serious default in the sense of the Housing Cooperative Act. 59. Nor could the applicant succeed with her argument that the conditions had subsequently improved. 60. The High Court found that the conditions for the imposition of default measures under sections 5-22 and 5-23 had in any event been fulfilled on 14 April 2009 when the order of sale was sent to the applicant, which – as also held by the City Court – was the decisive time for the assessment (see paragraphs 9 and 41 above). 61. The argument that the applicant’s high age should influence the assessment could not lead to any other conclusion. It was not difficult to see the sad side to hers having to move and, for that matter, even in the situation of her son. However, it was their own acts that had led to forcible sale of the apartment pursuant to section 5-22(2), cf. section 4-8(2) of the Act. 62. Thus, none of the grounds of appeal had succeeded and the High Court agreed with the City Court that they ought to be considered to be “clearly groundless” (section 4-8(2)). Her contention that the City Court should not have determined the case without holding an oral hearing could not be upheld either. 63. Against this background the High Court rejected the applicant’s appeal. 64. The applicant appealed against the High Court’s decision. She pointed out that the proceedings threatened her right to housing and that it was a serious case especially in view of her advanced age, eighty years. As regards the procedure, she submitted that the question was whether compulsory sale ought to occur under a written procedure or an ordinary procedure comprising an oral hearing. Her very considerable interest in keeping her apartment ought to be weighed against the Housing Cooperative’s limited interest in carrying out compulsory sale without an oral hearing. The competing interest in the case ought to have implications in the assessment of questions of procedure and the application of the law. The High Court’s reasoning had been summary; it had failed to deal with all her arguments and had omitted to comment on the interpretation of the terms “clearly groundless” and “substantial default”. The applicant requested the Supreme Court to quash the High Court’s decision and to refer her case back to the City Court for fresh examination under the ordinary procedure with an oral hearing. 65. On 1 October 2010, the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg), whose jurisdiction was limited to reviewing the High Court’s procedure and interpretation of the law, rejected the appeal, finding it obvious that it could not succeed. 66. The assistant appointed to implement the compulsory sale, Attorney F., subsequently advertised the applicant’s apartment for sale. The highest bid was NOK 2,200,000 (currently corresponding to approximately EUR 240,000) from Mrs G. On 16 June 2012 Mr F. communicated the bid to the City Court for validation (stadfestelse), following which all interested parties were given two weeks for expressing objections. Before the expiry of the time-limit, the applicant and Mr A objected to the sale. 67. By a decision of 1 July 2011 the relevant section of the Office of the City Recorder (byfogdembete) validated the above-mentioned bid. 68. On 16 December 2011 the High Court rejected an appeal by the applicant and her son against the City Court’s decision to validate the bid, as did the Appeals Leave Committee of the Supreme Court on 18 July 2012 finding it obvious that the appeal could not succeed. 69. In conjunction with the above proceedings, the applicant and/or Mr A unsuccessfully pursued multiple other matters regarding the sale of the applicant’s apartment (request for replacement housing; miscellaneous complaints regarding the office of the Execution and Enforcement Commissioner’s (namsmannen) handling of the sale; a demand of access to documents in the possession of OBOS; disqualification of all police officers employed at the Court of the Office of the City Recorder; Mr A’s compensation claim against the State on account of the police having communicated information about him to OBOS allegedly in breach of their duty of confidentiality; his compensation claim against OBOS for its manner of processing information pertaining to him; his demand that OBOS remove from its archives and destroy a police report related to him; and his request for access to a file in OBOS’s possession) as well as a request for the joinder of these proceedings and an oral hearing. All these claims were rejected as being groundless by the relevant sections of the Oslo City Court (18 May and 1 July 2011), the High Court (14 and 16 December 2012) and the Appeals Leave Committee of the Supreme Court (18 July 2012). On 16 November 2012 the applicant was notified that the new owner had demanded that the applicant vacate the apartment following the implementation of compulsory sale. 70. On 5 December 2012 the Court of the Office of the City Recorder warned the applicant that, as previously announced on 22 October 2012, he had decided to take the necessary steps to have her evicted from the flat on 18 December 2012 at 10 a.m., should she not voluntarily vacate the premises. 71. On 10 March 2015, the Government forwarded a copy of a handwritten note, dated 10 February 2015, by which the applicant instructed her then lawyer Mr Mørk to withdraw her application immediately. She stated that any enquiries should be addressed to her son Mr T. or to her daughter Ms G. and emphasised that her son Mr A was not entitled to represent her. The Government also suggested that the application be struck out. On 31 March 2015, Mr Danielsen of the same law firm as Mr Mørk, replied that he had replaced the latter and that the applicant wished to maintain her application. 72. On 30 March 2015 Mr A, represented by Mr Marius Reikerås, sought leave to intervene as a party or as a third-party in the proceedings (Articles 34 and 36 § 32 of the Convention). On 20 May 2015, having examined the matter in the light of Rule 44 § 3 of the Rules of Court, the President of the First Section (to which the application was allocated at the time) decided to refuse the request as she considered, having regard to the state of the proceedings in the case, that the intervention requested would not be in “the interest of the proper administration of justice”. Thereafter the President decided to resume the proceedings, which had been temporarily suspended pending consultation of the parties on the afore-mentioned. 73. On 2 November 2015 the applicant died. 74. Following the applicant’s death, on 4 November 2015, Mr A, represented by Mr M. Reikerås, informed the Court that he wished to pursue the application. On 16 December 2015 the Government asked the Court to strike the application out of its list of cases. On 12 January 2016, Mr Danielsen, the lawyer acting for the deceased applicant, informed the Court that her two other heirs, Mr T. and Ms G., wished to pursue the application. On 2 and 3 February 2016 the Court received further observations on these matters from Mr Reikerås and the Agent of the Government. | 0 |
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