partition
stringclasses 3
values | itemid
stringlengths 8
10
| languageisocode
stringclasses 1
value | respondent
stringlengths 3
135
| branch
stringclasses 4
values | date
int64 1.96k
2.02k
| docname
stringlengths 11
228
| importance
int64 1
4
| conclusion
stringlengths 12
5.89k
| judges
stringlengths 8
416
⌀ | text
stringlengths 64
316k
| binary_judgement
int64 0
1
|
|---|---|---|---|---|---|---|---|---|---|---|---|
test | 001-171781 | ENG | MNE | CHAMBER | 2,017 | CASE OF STANKA MIRKOVIĆ AND OTHERS v. MONTENEGRO | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Administrative proceedings;Article 6-1 - Reasonable time) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković | 5. Details of the applicants are set out in the appendix. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 3 December 2004 the third and fourth applicants filed a request with the Restitution and Compensation Commission (hereinafter “the Commission”), seeking compensation for land expropriated from their legal predecessor in 1946. 8. Between 17 July and 12 August 2005 the first and second applicants made statements waiving their rights in respect of the property belonging to the same legal predecessor in favour of the third and fourth applicants. 9. On 28 August 2005 the Commission ruled in favour of the third and fourth applicants. 10. On 14 October 2005 the Ministry of Finance quashed that decision upon an appeal filed on 19 September 2005 by the Supreme State Prosecutor (Vrhovni državni tužilac) in his capacity as legal representative of the respondent State. 11. On 17 April 2006 the Commission issued a new decision, awarding compensation to all the applicants as they were all heirs of the legal predecessor. In so doing, it also examined the waiver statements of the first and second applicants made in 2005, but considered that, pursuant to section 40 of the Restitution of Expropriated Property Rights and Compensation Act, such waiver statements could only be validly made in non-contentious proceedings before a competent court (see paragraph 20 below). 12. Between 12 June 2006 and 27 March 2014 the competent secondinstance administrative body (firstly the Ministry of Finance and later the Appeals Commission) and the Administrative Court, before which the case was first brought on an unspecified date in 2006, issued sixteen decisions in total (eight decisions each). The second-instance body ruled upon a series of appeals and gave decisions within 55 days, 65 days, 30 days, 53 days, 14 days, 78 days, 94 days, and 132 days. The Administrative Court gave rulings within 1 year 8 months and 17 days, 7 months and 22 days, 7 months and 27 days, 3 months and 23 days, 5 months, 5 months and 19 days, 4 months and 16 days, and 4 months and 23 days. 13. On at least four occasions, when initiating an administrative dispute before the Administrative Court, the applicants explicitly referred to section 37 and/or section 58 of the Administrative Disputes Act (see paragraph 26 below) and urged the Administrative Court to decide on the merits of their request. The Administrative Court never ruled on the merits of the initial compensation request, but instead quashed or upheld the quashing of the first-instance decision of the Commission. Its last decision was issued on 27 March 2014, in substance remitting the case once again to the Commission. 14. On 27 June 2014 the Supreme Court upheld the Administrative Court’s decision. The Supreme Court’s decision was served on the applicants on 8 July 2014. 15. On 25 July 2014 the applicants each lodged a constitutional appeal against the decision of the Supreme Court, relying on, inter alia, Articles 6 and 13 of the Convention. The Government submitted that, on the same day, in addition to those constitutional appeals against the Supreme Court’s decision, the applicants had also each lodged a second constitutional appeal against the decision of the Administrative Court of 27 March 2014. No copies of those second constitutional appeals were provided by either party. 16. On 28 October 2014 the Constitutional Court rejected the applicants’ constitutional appeals against the Supreme Court’s decision as premature, given that the Commission was still considering their compensation request. 17. On 28 December 2015 the Constitutional Court issued another decision dismissing the applicants’ constitutional appeals. The decision stated that the applicants’ constitutional appeals had been filed against the judgments of the Administrative Court and the Supreme Court. In its ruling, the Constitutional Court constantly referred to the “impugned judgments”. There is no information in the case file as to when that decision was served on the applicants. 18. On 31 March 2016, at a hearing before the Commission, the proceedings were adjourned at the applicants’ request until this Court ruled on their applications. | 1 |
test | 001-159777 | ENG | HUN | COMMITTEE | 2,016 | CASE OF BAKOS AND OTHERS v. HUNGARY | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 3. The list of applicants, their representatives and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law. In the application no. 33213/13, the applicant also raised a complaint under another provision of the Convention. | 1 |
test | 001-160613 | ENG | RUS | COMMITTEE | 2,016 | CASE OF FATEYENKOV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 4. The list of applicants and the relevant details of the applications are set out in the Appendix. 5. The applicants complained, inter alia, of the excessive length of civil proceedings and of the lack of an effective remedy in this respect. | 1 |
test | 001-177215 | ENG | RUS | CHAMBER | 2,017 | CASE OF NOVAYA GAZETA AND MILASHINA v. RUSSIA | 4 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant company, an editorial and publishing house registered in Moscow, edits and publishes a national newspaper with a circulation of 500,000, the Novaya Gazeta (“the newspaper”). The second applicant was born in 1977 and lives in Moscow. 6. At 11.30 a.m. on 12 August 2000 K-141 Kursk, a nuclear cruise missile submarine of the Russian Navy (“the Kursk”), while in the Barents Sea on a naval training exercise, sank as a result of explosions on board. Most of the crew died within minutes of the explosions. However, twentythree crew members (of the 118 aboard) survived the explosions and gathered in a stern compartment. They wrote a note to report the events. All of these twenty-three men died on board the Kursk before the arrival of a rescue team. 7. The Chief Military Prosecutor’s Office launched an official investigation into the accident under Article 263 § 3 of the Russian Criminal Code (a provision on “a breach of safety procedures while using a means of transportation which causes the death of two or more persons by negligence”) in case no. 29/00/0016-00 (“the investigation”). 8. On 22 July 2002 the Chief Military Prosecutor’s Office terminated the investigation for lack of evidence of a crime. 9. On 30 December 2002 B.K., counsel for the relatives of the deceased members of the Kursk crew, challenged the decision to terminate the investigation before the Chief Military Prosecutor. On 4 January 2003 his complaint was dismissed. B.K. challenged both decisions in court. 10. On 21 April 2004 the Military Court of the Moscow Garrison confirmed the decision of 22 July 2002. On 29 June 2004 the Appeal Tribunal of the Military Court of the Moscow Garrison upheld the judgment on appeal. 11. Between 2000 and 2005 the applicant company published in the newspaper a number of articles written by the second applicant covering the Kursk catastrophe and the investigation into it. 12. In late 2004 B.K. lodged an application before the Court on behalf of R.K., the father of D.K., lieutenant-captain of the Kursk, alleging a violation of D.K.’s right to life. 13. On 24 January 2005, in issue no. 5 of 2426 January 2005, the newspaper published an article written by the second applicant entitled “The Kursk case is now before the European Court” (“‘Дело ‘Курска’ - в Европейском суде” – “the first article”). 14. The first article reported that R.K. had lodged an application before the Court alleging a violation of Article 2 of the Convention. It described D.K. as the person who had written the note stating that twenty-three men had survived the explosions and had been waiting for rescue in the stern compartment. The note had been discovered in October 2000. According to the first article, the note refuted the official version that all crew members had died as a result of the explosions. The first article stated that after the Kursk had sunk a series of knocks making an SOS signal in Morse code had been audible from the stern part of the submarine. Russian officials, including the then Prosecutor General, V.U., had refused to consider those knocks a plea for rescue, and had established that the noise had originated outside the stern part of the submarine. R.K. had unsuccessfully tried to prove in courts that the omission to consider the knocks an SOS signal amounted to an abuse of public office (“должностное преступление”). His complaints had been rejected by the Moscow Garrison Military Court and the Moscow Circuit Military Court. In particular, the first article read as follows: “R.K., the father of D.K., and his counsel B.K. have repeatedly tried to prove in Russian courts that this [failure to characterise the noise as an SOS signal] is absurd and [constitutes] an abuse of public office, the purpose of which is to help the Navy officers escape criminal responsibility. The abuse of public office, according to the claimants, was perpetrated not only by investigators of the Chief Military Prosecutor’s Office, but also by experts, V.K. and S.K. The reports by those two military officials (V.K. is the chief forensic expert of the Ministry of Defence, S.K. is the chief navigating officer of the Russian Navy) were relied upon by the investigators, headed by A.E. and V.U., who terminated the criminal case in relation to the Kursk catastrophe and delivered a decision refusing to prosecute eleven officers of the Northern Fleet.” 15. On 27 January 2005, in issue no. 6 of 27-30 January 2005, the newspaper published another article by the second applicant entitled “The prosecutor’s office is worried about the prospect of the Kursk case being examined by the European Court. All reasonable offers welcome?” (“Перспективы Европейского суда по ‘делу “Курска”‘ взволновали прокуратуру. Торг уместен?” – “the second article”). The second article described State officials’ reaction to R.K.’s lodging the application. It reported that the Leningrad Military Circuit prosecutor had tried to persuade R.K. that his counsel had lodged the application exclusively for the purposes of self-promotion. B.K. had reportedly stated that his client had been willing to cooperate with the prosecutors, and had implied that R.K. had received an offer to have the official investigation reopened in exchange for the withdrawal of his application to the Court. In particular, the second article read as follows: “B.K., counsel who represents the forty-seven families of the deceased crew members, has also confirmed that the application before the European Court was the last resort. There was no other prospect of success for the Kursk case in Russia, owing to the position adopted by V.U., the Prosecutor General, and A.S., the Chief Military Prosecutor. Apparently, those two officials took a decision to help the officers in command of the Northern Fleet escape criminal responsibility and to terminate the investigation. (B.K. has written about this in his book ‘It has sunk ... The truth about the Kursk hidden by Prosecutor General U.’).” 16. After the publication of the two articles, V.K., the chief forensic expert of the Russian Ministry of Defence, A.E., the head of an investigative group within the Chief Military Prosecutor’s Office in charge of the Kursk investigation, A.S., the Chief Military Prosecutor of Russia, and the Chief Military Prosecutor’s Office of Russia as a legal entity lodged civil actions for defamation against the applicants with the Basmannyy District Court of Moscow (“the District Court”). Each claimant sought compensation for non-pecuniary damage and the retraction of certain statements appearing in the articles. 17. V.K. sought the retraction of the following statement: “... this is ... an abuse of public office, the purpose of which is to help the Navy officers escape criminal responsibility. The abuse of public office ... was perpetrated not only by investigators of the Chief Military Prosecutor’s Office, but also by experts ...” 18. A.E. insisted that his reputation as the head of the investigative group in charge of the Kursk case had been tarnished by the following text: “... this is ... an abuse of public office, the purpose of which is to help the Navy officers escape criminal responsibility. The abuse of public office ... was perpetrated not only by investigators of the Chief Military Prosecutor’s Office, but also by experts ...” 19. The Chief Military Prosecutor’s Office and its head, A.S., sought to have the following parts of the articles retracted: “... this is ... an abuse of public office, the purpose of which is to help the Navy officers escape criminal responsibility. The abuse of public office ... was perpetrated not only by investigators of the Chief Military Prosecutor’s Office, but also by experts ...” “There was no other prospect of success for the Kursk case in Russia, owing to the position adopted by V.U., the Prosecutor General, and A.S., the Chief Military Prosecutor. Apparently, those two officials took a decision to help the officers in command of the Northern Fleet escape criminal responsibility and to terminate the investigation.” 20. On 3 March and 7 July 2005 the District Court joined the proceedings instituted by V.K., A.E., A.S. and the Chief Military Prosecutor’s Office. 21. On 11 April 2005 an expert linguist of the Russian Language Institute of the Russian Academy of Sciences, at the applicant company’s request, delivered an expert report on the impugned articles. The expert concluded that it was possible to perceive the texts as the reported opinions of R.K. and B.K., and not those of the journalist. 22. On 7 December 2005 the District Court decided the case. It found that it had been established that the newspaper had indeed disseminated information concerning the claimants. It further found that the information in question was damaging to the claimants’ reputation for the following reasons. The allegations that investigators and experts had tried to help the Navy officers escape criminal responsibility had suggested that these officials had lacked the requisite impartiality when performing their duties. The District Court found the expression “to help escape criminal responsibility” defamatory, as it contained an allegation of criminal conduct. The applicants had failed to provide evidence that the claimants had committed a crime. The District Court dismissed as unsubstantiated the applicants’ reference to the fact that the second article had merely reproduced B.K.’s position as reflected in his book. Furthermore, the District Court reasoned that the applicants had been under an obligation to verify the truthfulness of the information before publishing it. It dismissed the applicants’ assertion that the impugned statements amounted to value judgments. The District Court found in the claimants’ favour, ordered the retraction of the statements concerning the claimants’ involvement in an abuse of public office, and awarded each claimant 50,000 and 7,000 Russian roubles (RUB – approximately 1,470 and 205 euros (EUR)), to be paid by the applicant company and the second applicant respectively. To reimburse court fees, the applicant company was ordered to pay RUB 85 and the second applicant was ordered to pay RUB 15 to each claimant. 23. In so far as relevant, the District Court’s judgment read as follows: “... assessing the impugned statements, the court considers that they contain affirmations that V.K., A.E., A.S. and investigators of the Chief Military Prosecutor’s Office broke the Russian law which was in force and committed an abuse of public office, and that such statements tarnish the honour, dignity and business reputation of V.K., A.E., [and] A.S., as well as the business reputation of the Chief Military Prosecutor’s Office as an agency performing, in the name of the Russian Federation, State functions of supervision with regard to respect for the Constitution of Russia and laws in force within the Russian territory. ... The defendants have failed to produce any evidence to prove the veracity of the disseminated statements that the claimants abused public office and adopted unlawful decisions. Looking into the defendant’s claim that the impugned articles reflect the opinion of ... B.K., ... expressed in his complaint before the European Court and his book “It has sunk. The truth about the Kursk hidden by Prosecutor General U.”, the court finds as follows. ... page 170 of the book by B.K. ... contains the following text: “I think that the final decision not to find commanders of the Northern Navy criminally liable was taken by ..., A.S. and ...” In view of the above, comparing the impugned statements of the article ... and the text of the book, the court considers that the meaning of the phrase “to take a decision not to find [somebody] criminally liable” is not equivalent to the phrase “to take a decision to help [somebody] escape criminal responsibility”. The complaint ... lodged by B.K. before the European Court ... does not contain statements alleging that the claimants committed an abuse of public office. Furthermore, the defendants’ arguments that ... the editorial department and the author of the articles are not the authors of [B.K.’s] statements cannot serve as grounds to absolve a mass media outlet and a journalist of responsibility, in view of the following. Under section 49 of ... the Mass Media Act, a journalist must verify the truthfulness of the information he communicates, and section 57 of the Act sets out an exhaustive list of grounds for absolving an editorial department, an editor-in-chief, or a journalist of responsibility for disseminating untruthful statements that tarnish the honour and dignity of individuals and organisations ... The court cannot accept as grounds to dismiss the [defamation] action the defendants’ arguments that the impugned statements are opinions, value judgments that could not be retracted under Article 152 of the Civil Code, for the following reasons. Under Article 17 of the Constitution, freedom of thought and expression, as well as the right to protect one’s honour and good name, are recognised and guaranteed ... At the same time, the realisation of the rights and freedoms of an individual and citizen should not breach the rights and freedoms of other citizens. In view of the Constitution’s provisions, freedom of thought and expression guaranteed by the Constitution should not serve as an instrument to violate the honour and dignity of others. Therefore, expression by a journalist of his opinion on any topic, or the publication of an opinion by another person does not give grounds to absolve [the journalist] of responsibility where damage has been unlawfully inflicted on the values protected by the Constitution and the Civil Code of Russia, [such as] honour, dignity and the business reputation of an individual.” 24. The applicants appealed, arguing in particular that the information contained in the impugned articles amounted to value judgments, and that the articles had reflected the opinions of R.K. and B.K., opinions expressed in the former’s application to the Court and the latter’s book. 25. On 16 March 2006 the Moscow City Court (“the City Court”) dismissed the appeal and upheld the District Court’s judgment in full. In particular, it reasoned “the defendants have not submitted evidence of the veracity of the disseminated statements, [while] the claimants have provided evidence proving that they did not commit the actions mentioned in the disseminated statements.” 26. The applicants also unsuccessfully applied for supervisory review. 27. On 7 December 2005 the District Court issued two writs of execution against the applicant company in V.K’s favour. The first writ contained an order to publish a retraction, and the second one ordered the applicant company to pay V.K. RUB 50,085. 28. On 3 May 2006 the bailiffs’ service received the writs and commenced enforcement proceedings. 29. The newspaper published the retraction regarding V.K. in its issue of 22-25 June 2006. 30. On 26 June 2006 the applicant company transferred RUB 50,085 to the bailiffs’ bank account to be paid to V.K. 31. On 27 June 2006 the bailiffs’ service terminated the enforcement proceedings against the applicant company in respect of the retraction. 32. On 28 June 2007 the second applicant transferred RUB 7,490 to the bailiffs’ bank account to be paid to V.K. 33. On 12 February 2008 the bailiffs’ service initiated enforcement proceedings against the applicants on the basis of writs of execution in A.E.’s favour. They ordered the applicant company and the second applicant to pay RUB 50,085 and RUB 7,015 respectively. 34. On the same date the applicant company transferred to the bailiffs’ bank account RUB 50,085 on its own behalf and RUB 7,015 on behalf of the second applicant, to be paid to A.E. | 1 |
test | 001-156253 | ENG | TUR | CHAMBER | 2,015 | CASE OF DERYAN v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 6. The applicant was born in 1948 and lives in Kallithea-Attaki, Greece. 7. The applicant is one of the heirs of Mr Serkis Gövderelioğlu, who used to live in Istanbul. On 7 July 1988 Mr Gövderelioğlu purchased movable and immovable goods from the bankrupt estate of a company by way of a public tender. 8. On 5 February 1996 the sale in question was annulled by a court order on the ground that the instalments had not been paid in time. The decision annulling the sale became final on 3 October 1997 and on 14 November 1997 Mr Gövderelioğlu was requested by the Istanbul Bankruptcy Office to return the purchased goods within seven days. He did not comply with that request. 9. On 10 August 2000 Mr Gövderelioğlu died. 10. Due to his non-compliance with the Bankruptcy Office’s order to return the goods, on 5 June 2001 the bankrupt estate of the aforementioned company filed an action against Mr Gövderelioğlu’s heirs, including the applicant, before the Şişli Court of First Instance (hereinafter “the Şişli Court”) for the recovery of the goods or their equivalent value. 11. A lawyer acting on behalf of the applicant and the other heirs of Mr Gövderelioğlu submitted a petition to the Şişli Court on 3 December 2001, arguing, inter alia, that the case had been lodged outside the statutory time-limit and thus had to be rejected. The lawyer submitted that the statutory one-year time-limit had started to run on 14 November 1997 but that the plaintiffs had not lodged their action until 2001. 12. On 15 April 2002 three experts appointed by the Şişli Court submitted their opinion on the value of the goods. Two of the experts considered the value to be approximately 245,000 euros (EUR), whereas the third expert considered it to be in the region of EUR 45,000. 13. On 11 June 2002 the Şişli Court issued an interim decision, rejecting a request to hear two witnesses who, according to the applicant, would have provided pertinent information about the value of the goods in question. The Şişli Court considered that the existence of the expert reports made it unnecessary to hear the applicant’s witnesses. 14. In its decision of 13 December 2002 the Şişli Court ordered Mr Gövderelioğlu’s heirs to return the goods which were still in their possession and to pay a certain sum of money corresponding to the value of the goods which had been disposed of in the meantime. The amount of money ordered was based on the calculations made by the two experts. The Şişli Court further awarded statutory interest on this amount accruing from 21 November 1997, the original due date for the return of the goods. No response was given by the Şişli Court in its decision to the applicant’s objection concerning the issue of the time-limit. 15. The applicant appealed against the judgment and argued, inter alia, that the action for recovery should have been dismissed by the Şişli Court as it had been instituted outside the statutory time-limit. He also submitted that the Şişli Court had acted unlawfully by ordering the payment of interest on the amount due, given that no request for interest had been made by the plaintiff. He also added that the Şişli Court had failed to hear the witnesses he had proposed. The applicant asked the Court of Cassation to hold a hearing before rendering its decision. 16. On 10 July 2003 the Court of Cassation upheld the judgment of the Şişli Court without holding a hearing and without providing any answers to the applicant’s objections. 17. On 22 December 2003 the Court of Cassation rejected a request by the applicant for rectification of its previous decision. | 1 |
test | 001-158027 | ENG | TUR | CHAMBER | 2,015 | CASE OF DİLEK ASLAN v. TURKEY | 3 | Remainder inadmissible;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);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 4. The applicant was born in 1984 and lives in Kars. 5. 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 (paragraphs 5-9 below). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 10-13 below). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraphs 14-30 below). 6. On 21 October 2006 the applicant and three of her friends were in the city of Kars, distributing leaflets prepared by TAYAD (Association for Solidarity with the Families of Persons Deprived of Their Liberty), in a residential neighbourhood. 7. A man in plain clothes arrived and attempted to seize the leaflets without showing his identity documents demonstrating that he was a police officer. As the applicant and her friends refused to comply with the man’s demand, he held two of the applicant’s friends around their necks. Subsequently, around thirty police officers arrived at the scene and arrested the applicant and her friends. In the course of the arrest, the police officers used force and hit the applicant on various parts of her body before putting her in a police vehicle. In the vehicle, a police officer sat on her head and continued to hit her. A number of police officers also touched various parts of her body and made sexually suggestive comments. 8. The applicant was taken to hospital, where she was examined by a doctor who observed skin erosions, red patches (erythema) and sensitive areas on the applicant’s head, face, shoulders, lower back, abdomen and wrist. He concluded that the injuries were not life-threatening and a simple medical procedure was sufficient to treat them. 9. The applicant was then taken to a police station, where the beating continued and where she was threatened with rape by one of the police officers. The applicant’s requests for information about the reasons for her arrest and for a lawyer were refused. Each time the applicant repeated her requests the police officers used offensive language. 10. A lawyer who arrived at the police station the same afternoon secured the applicant’s release. 11. On 21 October 2006 at around 11 a.m. the police received information according to which TAYAD members were distributing leaflets in a residential area in Kars. Two police officers, V.G. and H.Ö., arrived at the scene of the incident at 11.15 a.m. in order to verify whether the content of the leaflets was legal. One of the officers, V.G., approached the applicant and her friends, told them that he was a police officer and requested to see the content of the leaflets and their identity cards. As the applicant and her friends refused to comply and began using offensive language and hitting him, a second police officer intervened. They subsequently asked for help from other officers, who also arrived at the scene of the incident. The police arrested the applicant and her friends and tried to put them in a police vehicle. The arrestees, however, resisted arrest. They also continued to hit the officers in the vehicle. During the physical struggle between the arrestees and the police officers, V.G., was injured. 12. At 11.30 a.m. the applicant was examined by a doctor, who observed minor injuries on her head, shoulders and wrist. At 11.45 a.m. V.G. was also subjected to a medical examination by the same doctor. According to the medical report issued in respect of V.G., he had pain and sensitivity in his lower back and numbness in his feet. The doctor considered that a simple medical procedure was sufficient to treat both the applicant’s and V.G.’s injuries. 13. At 1 p.m. the applicant and her friends were taken to the police station upon the instructions of the Kars public prosecutor. The applicant and her friends refused to make statements to the police. 14. At 4 p.m. the applicant and her friends were released from police custody and taken to a hospital for a medical examination. The doctor who examined the applicant observed the same injuries noted in the report issued at 11.30 a.m. on the same day. 15. The medical reports of 11.30 a.m. and 4 p.m. regarding the applicant contain information about the physical injuries sustained by the applicant and the doctors’ opinions as to the gravity of the injuries in the respective sections of the reports entitled “findings regarding the lesions” and the “conclusion of the examination” (see paragraphs 8, 12 and 14 above). The sections of the reports entitled “conditions of examination”, “information regarding the incident”, “the complaints of the person examined” and “findings of the psychiatric examination” were not completed. 16. At 1.30 p.m. on 21 October 2006 an arrest report was drafted by the police. According to this report, police officers had arrived at the scene of the incident as they had received information that members of TAYAD were distributing leaflets. When the police asked them to show the leaflets, the applicant and her friends put the leaflets in their bags and refused to present their identity documents. The report further stated that applicant and her friends had to be arrested through the use of force as they resisted the police officers and continued their acts. According to the report, the arrestees attacked the police officers by way of throwing themselves on the ground and chanting slogans. They were then put in the police vehicle by force and injured themselves in the vehicle by hitting their heads on the car glass and the door. 17. At 1.40 p.m. V.G.’s statements were taken by another police officer. He contended that he had been injured by the applicant and her friends and asked for an investigation to be conducted against them. 18. At 4.10 p.m. the applicant’s and her friends’ personal belongings were searched by four police officers who drafted a search report. According to this report, two of the arrestees each had a copy of the leaflet in their bags. The police returned all items found during the search when the applicant and her friends were released from police custody at around 4 p.m. 19. In November 2006 the Kars public prosecutor initiated an investigation against the applicant and her friends. Within the context of this investigation, on 17 November 2006 the public prosecutor took statements from V.G. and H.Ö. The documents containing the police officers’ statements refer to them as the “complainants”. The officers contended that they had been obliged to use force together with other police officers who had come to assist them, as the applicant and her friends had attempted to beat V.G. The police officers stated that they did not wish to lodge a complaint against the applicant and her friends. 20. On 23 November 2006 the applicant was questioned by the Kars public prosecutor as a suspect. In her statement, she described the illtreatment and the sexual assaults, and asked the public prosecutor to prosecute the police officers responsible for her ordeal. She also noted that she and her friends had downloaded the leaflets from the web and printed them. She stated that the content of the leaflets in question had not been illegal and that they had not committed any offence. The applicant’s legal representative was also present in the room and told the public prosecutor that while distributing the leaflets his client had been exercising her right under Article 10 of the Convention to impart her ideas and opinions. He complained that the police officers who had arrested his client had not shown her their identity documents and had not informed her of her rights. He further complained that the police had committed the offence of abuse of office as they had used violence against his client. 21. On the same day two of the applicant’s friends, S.P and B.K., also made statements before the Kars public prosecutor as suspects. They both contended that they had been ill-treated by the police and requested that an investigation be initiated against the officers who were responsible for their ill-treatment. 22. On 13 August 2007 the Kars public prosecutor filed an indictment with the Kars Criminal Court and accused the applicant and her three friends of obstructing the police officers in the execution of their duties under Article 265 § 1 of the Criminal Code. The public prosecutor alleged that the applicant and her friends had called the police officers “fascists”, “killers” and “enemies of the people”, had refused to show the police officers their identity cards and had hit them with their handbags. A case file was opened and given the number 2007/220. 23. On 4 December 2007 the Kars Criminal Court held the first hearing in the case. 24. On 24 March 2008 the criminal court heard V.G., the complainant police officer, in the absence of the applicant and her co-accused. V.G. contended that the applicant and her friends had chanted slogans, resisted arrest and hit him with their bags. 25. On 27 March 2008 the applicant made statements before the firstinstance court. She stated that they had not chanted slogans or beaten the officers. They had not known whether those persons were police officers and, in any event, V.G. had not asked to see the content of the leaflets. According to the applicant, V.G. had merely taken hold of one of her friends and asked for assistance from other officers in order to carry out the arrest. She noted that they had been attacked and arrested without being able to understand that V.G. was a police officer. During the same hearing, the applicant’s lawyer maintained that the applicant’s trial for distributing leaflets was in violation of her rights enshrined in the European Convention of Human Rights and, in particular, her right to freedom of expression and demonstration. 26. On various dates the applicant’s co-accused gave evidence before the Kars Criminal Court. They all contended that they had not been asked to show the leaflets or their identity cards but had been arrested through the use of force although they had not resisted arrest. 27. On 17 March 2009 the Kars Criminal Court convicted the applicant of obstructing the police officers in the execution of their duties and insulting them under Article 265 § 1 of the Criminal Code and sentenced her to eleven months and twenty days’ imprisonment. The first-instance court noted that the police had gone to the scene of the incident as they had received information that members of TAYAD were distributing leaflets. In the light of the statements of the officers who had signed the police report, the medical reports and the arrest report, the Kars Criminal Court found it established that the accused had insulted the police officers, shouted that they would neither show their identity cards nor give the leaflets and injured V.G. by way of hitting him with their bags. Taking into account the fact that the applicant did not have any criminal record, her personality traits and her conduct during the hearings, the first-instance court considered that the applicant would not commit any further offence. It therefore decided to suspend the pronouncement of the judgment against her (hükmün açıklanmasının geri bırakılması) for a period of five years, pursuant to Article 231 of the Code of Criminal Procedure (Law no. 5271). 28. On 26 May 2009 the decision of 17 March 2009 became final. 29. Meanwhile, the Kars public prosecutor initiated an investigation against V.G. and H.Ö. on the charge of abuse of office, upon the complaints lodged against them by the applicant and her friends. 30. On 11 August 2007 the Kars public prosecutor decided that no proceedings should be brought against the police officers. In the public prosecutor’s opinion the applicant’s injuries had possibly been caused when she and her friends had resisted the police officers, who had been performing their duties. The public prosecutor noted in his decision that some of the police officers had also been injured during the incident. 31. On 4 December 2007 the applicant’s lawyer filed an objection against the public prosecutor’s aforementioned decision. In his petition, the lawyer noted that the decision in question had not been served on him or his client and that they had become aware of it when the lawyer went to the court-house to read the documents in the case file on the same day. The applicant’s lawyer also noted that the applicant had been subjected to violence by the police and that she had not hit the police officers. 32. On 21 December 2007 the Ardahan Assize Court dismissed the applicant’s objection against the Kars public prosecutor’s decision following an examination on the merits. The Assize Court considered that the force used by the police officers had been no more than necessary to counter the applicant’s resistance. The applicant claimed that this decision was not communicated to her or her lawyer and was put in the investigation file. Her lawyer became aware of it when he consulted that file on 21 January 2008. There is no document in the investigation file, submitted by the Government, demonstrating the notification of the decisions of 11 August 2007 and 21 December 2007 to the applicant or her lawyer. | 1 |
test | 001-153349 | ENG | ARM | CHAMBER | 2,015 | CASE OF NALBANDYAN v. ARMENIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicants were born in 1961, 1964 and 1988 respectively. The first and second applicants appear to have been serving prison sentences in Kosh and Abovyan penitentiary institutions at the time of submission of their application. The third applicant lives in the town of Vardenis, Armenia. 6. The first and second applicants are husband and wife. The third applicant is their daughter. At the material time they resided in Vardenis, in the Gegharkunik Region of Armenia. 7. On 8 June 2004 criminal proceedings were instituted on account of the murder of a local girl who was apparently the third applicant’s classmate and whose body was found not far from the applicants’ home. 8. The first applicant alleges that on the same date he was taken to the Vardenis Police Department where he was unlawfully kept without his arrest being formally recorded. At the police department he was subjected to continual beatings by police officers in an attempt to coerce him to confess to the above-mentioned murder. 9. On 24 June 2004 the Gegharkunik Regional Court found the first applicant guilty under Section 182 of the Code of Administrative Offences of maliciously disobeying lawful orders of police officers and sentenced him to fifteen days’ imprisonment. The first applicant was found to have used foul language in the street and to have disobeyed the police officers who tried to call him to order. 10. The first applicant alleges that the above decision was a fake and that in reality he was kept at the police department during that entire period in connection with the above murder. The administrative penalty imposed on him was simply used as a means to legitimise his continued unlawful deprivation of liberty. 11. The second and third applicants allege that from 8 June 2004 onwards they were also under constant pressure from the local lawenforcement officers, being frequently taken to the police department and pressurised and coerced to confess to the murder or to incriminate each other. 12. On 30 June 2004 the second applicant, together with a number of other residents of Vardenis, filed a complaint with the General Prosecutor and the Chief of the Armenian Police, alleging that the first applicant had been unlawfully detained since 8 June 2004 in connection with the above murder and that the applicants’ family had been terrorised by the local law-enforcement officers. They further alleged that the second applicant had been invited to the Vardenis Police Department where she was ordered by the Chief of Department, Vi.H., to admit that the first applicant had wanted to rape the victim and that she, having found out about it, had killed the girl out of jealousy. They alleged that the second applicant had been beaten but had refused to confess. 13. The second applicant alleges that on 8 July 2004 she was invited to the Vardenis Police Department where Chief of Department Vi.H. ordered her to testify against the first applicant. When she refused to do so, she was beaten by V.H. and a number of other law-enforcement officers, including the deputy of the criminal investigation unit, N.H., two officers of the criminal investigation unit, K.N. and K.M., and the Gegharkunik Regional Deputy Prosecutor, F.B. She was beaten on her feet with a baton and when she fainted the police officers would bring her back to consciousness and continue the beating. Thereafter the police officers brought the third applicant to the police department and locked her up in a nearby, dark room infested with rats. They threatened the second applicant that they would rape the third applicant if she refused to confess, after which she confessed to the murder. It appears that the first applicant also confessed to having assisted the second applicant in the murder. 14. The third applicant alleges that she was taken to the police department on numerous occasions, frequently at late hours, where she was humiliated by the police officers, threatened with rape and pressured to admit that it was the second applicant who had committed the murder and that the motive was the strained relationship between her and the victim. She further alleges that she saw both her father and her mother at the police department and that they bore signs of ill-treatment. 15. On 9 July 2004 the first and second applicants were formally arrested in connection with the above-mentioned murder. It appears that a confrontation was held between the second and third applicants, during which the second applicant admitted having committed the murder and stated that the third applicant had helped her to dispose of the body. 16. On the same date the first and second applicants refused the services of a lawyer who had been invited to participate in the case by the investigator. They allege that they did so because they did not trust the investigator’s choice. It appears that the applicants did not request that another lawyer be appointed instead. 17. The third applicant alleges that on the night from 9 to 10 July 2004 she was kept at Vardenis Police Department in an individual cell which had no lights and was infested with mice. 18. On 10 July 2004 the second applicant participated in an investigative measure at the scene of the crime which was recorded on film. 19. On the same date from 9.20 to 10 p.m. the third applicant was questioned as a witness by Gegharkunik Regional Deputy Prosecutor, F.B. She stated that the second applicant had made false statements during the confrontation, which must have been the result of her being drugged. She further stated that the second applicant had not committed the murder and that her behaviour, including her confession and accusations, was strange. 20. The third applicant alleges that following this interview she was subjected to beatings by the Gegharkunik Regional Deputy Prosecutor F.B. and two other officers of the prosecutor’s office who pulled her hair and then threw her on the floor and started kicking her. On 11 July 2004 the police officers took her home, where she lay in bed motionless for several days until her uncle visited her on 13 July 2004 and made arrangements to have her transferred to Yerevan for a medical examination. 21. On 12 July 2004 the first and second applicants were formally charged with murder. 22. On the same date the Gegharkunik Regional Court held a hearing in the first and second applicants’ presence, at which it examined and granted the application seeking to have them detained. Deputy Regional Prosecutor F.B. was present at this hearing. The second applicant was asked by the judge whether she had confessed voluntarily to the murder or had been coerced to do so, to which she replied that no coercion or intimidation had been applied to her during the preliminary investigation and that the confession had been made voluntarily. 23. On 14 July 2004 the second applicant was transferred from the Vardenis Police Department to the Avobyan detention facility. Upon her admission to the detention facility the second applicant underwent a medical examination and was found to have “bruised feet due to blood vessels being broken as a result of swelling”. It was further recorded that she complained of high blood pressure, pain in the legs and swollen feet. 24. On the same date the first applicant was transferred to the Kosh detention facility. 25. On 16 July 2004 the third applicant underwent a medical examination at the Armenia Medical Centre in Yerevan and was found to have: “Concussion (?), bruising of soft tissues of the head [...], and bruising of soft tissues in the back area and of the left arm...” 26. On 23 August 2004 the criminal proceedings in their part concerning the third applicant were terminated for lack of evidence of her involvement in the crime. 27. On 25 August 2004 the first and second applicants requested that a state-appointed lawyer, K., be engaged in the case. The applicants allege that on the same date lawyer K. requested that the first and second applicants be questioned in his presence, but this request was refused. 28. On 26 August 2004 the investigation was completed and the first and second applicants were granted access to the case file. On the same date both applicants and their lawyer familiarised themselves with the materials of the case, which consisted of four volumes. 29. On 31 August 2004 the Gegharkunik Regional Prosecutor approved the indictment and the case was transmitted to the Gegharkunik Regional Court for examination on the merits. In the proceedings before the Regional Court the first and second applicants denied their guilt and stated that their confession statements had been made as a result of ill-treatment. 30. The first and second applicants allege that the hearings at the Regional Court were conducted in an atmosphere of constant disorder, including real threats and verbal and physical abuse towards them and their lawyer by a group of 25 to 30 people, composed of the victim’s relatives and their friends. 31. In November 2004 lawyer S. of the Helsinki Association NGO was engaged in the case by the first and second applicants, replacing lawyer K. According to the applicants, the hearings continued in the same manner. 32. On 21 January 2005 the President of the Gegharkunik Regional Court informed the head of the bar association in writing that lawyer S. had failed to appear at the hearing of 19 January 2005 without prior notice. The hearing was therefore adjourned until 25 January 2005. Lawyer S. was notified of this but informed the court by telephone that she refused to participate. The President requested in his letter that measures be taken to ensure her participation or else the court would have to continue the proceedings without her. 33. On 25 January 2005 lawyer S. applied to the Minister of Justice, complaining about the disorder during the court hearings. She alleged that the applicants’ previous lawyer, K., had been beaten by the victim’s relatives, which precluded his further participation in the case, and that she feared the same would happen to her. She further alleged that the court took no action to prevent the disorder and requested that the case be examined in a different court. 34. The first and second applicants allege that lawyer S. was forced to miss some of the hearings because of fears for her safety. 35. On 4 February 2005 the Regional Court found the first and second applicants guilty of murder and sentenced them to nine and fourteen years’ imprisonment respectively. In doing so, the Regional Court examined and dismissed the first and second applicants’ allegations of ill-treatment on the following grounds: (a) these allegations had been examined by the Gegharkunik Regional Prosecutor’s Office and had been found to be unsubstantiated (see paragraph 60 below); (b) the first and second applicants, at various stages of the proceedings, had made contradictory statements in connection with these allegations; (c) the second applicant, having indicated the alleged perpetrators, nevertheless refused to have a confrontation with them during the court proceedings; (d) on 10 July 2004 the second applicant had participated in an investigative measure at the scene of the crime which was recorded on film and was examined in court: she walked freely and bore no signs of illtreatment; (e) the first and second applicants admitted their guilt and made no allegations of ill-treatment at the court hearing of 12 July 2004, at which the question of their detention was determined (see paragraph 22 above); (f) on 13 July 2004 the first and second applicants were filmed for a police television show but made no allegations of ill-treatment to the members of the crew; (g) when questioned on 14 July 2004 the second applicant refused to comment on the complaints which she had lodged with various authorities prior to her arrest, stating that those had been lodged before her arrest and that the true statements were those which she had made after her arrest; (h) on 14 July 2004 the first and second applicants were transferred to detention facilities and no signs of ill-treatment were recorded at the time of their admission; (i) the second applicant raised the allegations of ill-treatment for the first time only on 21 August 2004, more than forty days after her arrest; (j) the second applicant’s allegations of ill-treatment had been rebutted by the statements made in court by the officer of the criminal investigation unit of the Vardenis Police Department, K.M., who had been questioned as a witness. 36. On 18 February 2005 lawyer S. lodged an appeal. In her appeal she argued that the applicants had been deprived of effective legal assistance because from 14 December 2004 she had not been able to participate in the hearings because of the constant disorder in the courtroom. She further argued that the applicants’ conviction had been based on coerced confession statements. It appears that the applicants also lodged appeals in which they, inter alia, denied their guilt and stated that their confession statements had been made as a result of ill-treatment. 37. On 22 March 2005 the examination of the case commenced at the Criminal and Military Court of Appeal. According to the first and second applicants, the hearings before the Court of Appeal were conducted in the same manner as before the Regional Court. 38. At the hearing on 22 June 2005 a scuffle broke out between the victim’s and the applicants’ relatives. It appears that the victim’s relatives were removed from the courtroom and the hearing resumed. The hearing was then adjourned until 27 June 2005 in order for lawyer S. to have time to prepare her final pleading. 39. On 24 June 2005 the head of the Helsinki Association submitted the text of lawyer S.’s final pleading to the Court of Appeal by post, claiming that this was necessary in order to ensure the lawyer’s personal and physical safety. He alleged that at the hearing of 22 June 2005 the victim’s relatives had attacked the lawyer. Some of the defendants’ relatives had also been attacked and beaten. He further alleged that during the hearings in both the Regional Court and the Court of Appeal there had been constant threats against the lawyer, but her requests to have her security ensured and the threats recorded in the transcripts had been ignored by the courts. 40. On 27 June 2005 the hearing was adjourned until 1 July 2005 because of lawyer S.’s absence. In doing so, the Court of Appeal noted the lawyer’s concerns about her security and refusal to participate because of fears for her safety. 41. On the same date the presiding judge addressed a letter to the head of the bar association, with a copy to lawyer S., stating that the hearing had been adjourned and asking that her future appearance be ensured. The letter further stated that appropriate measures had been taken to ensure the safety of the participants in the trial. 42. On 29 June 2005 lawyer S. complained to the police about the events of 22 June 2005, alleging that she had been working in such conditions for the last six to seven months and that she was not able to attend the hearing of 27 June 2005 because of fears for her safety. 43. On 1 July 2005 the Court of Appeal held a hearing. Lawyer S. did not appear. According to the record of the hearing, the court noted lawyer S.’s absence and stated that both the lawyer and the bar association had been informed that the court had taken all possible measures to secure the safety of those participating in the trial and had therefore been asked to ensure the lawyer’s presence. The second applicant stated that she had met with lawyer S. at the detention centre and they had agreed that the lawyer would not appear in court. She therefore wished to dispense with the lawyer’s services and did not wish to have another lawyer. The first applicant similarly stated that he wished the proceedings to continue without the lawyer and that he did not wish to have another lawyer. The court then decided to return lawyer S.’s final pleading on the ground that she no longer represented the first and second applicants. 44. The applicants allege that the record of the court hearing of 1 July 2005 contains inaccurate statements and does not correspond to reality. Their lawyer was refused, at a later stage, a copy of this record because she was allegedly no longer authorised to represent them and was therefore unable to comment on its accuracy. 45. On 2 July 2005 the Court of Appeal upheld the first and second applicants’ conviction. The Court of Appeal dismissed their allegations of ill-treatment on the same grounds as the Regional Court adding also that, according to a court-ordered expert medical opinion, the first applicant bore no signs of injury. 46. On 8 July 2005 lawyer S. visited the second applicant at the detention facility. 47. On 11 July 2005 lawyer S. lodged an appeal on points of law with the Court of Cassation. In her appeal she argued that the applicants had been ill-treated and their conviction was based on coerced statements. She further argued that the applicants had been deprived of effective legal assistance and an objective examination of their case, because of an atmosphere of constant terror reigning in the courtroom. The Court of Appeal had failed to ensure order and it had been impossible to examine evidence and to submit new evidence in an objective and fair manner because of the repeated scuffles and stressful atmosphere. The conflicts, threats of violence, verbal abuse and scuffles had worsened during the last three hearings in the Court of Appeal. The court, however, had failed to take any measures, which precluded her further participation and even made it impossible to make her final pleading which, as a result, she had been forced to submit by post. The court’s inactivity only encouraged further aggressive behaviour by the victim’s relatives. The applicants’ previous lawyer K. had also been unable to participate in the hearings, which had consequently been held in October 2004 in his absence. 48. On an unspecified date the second applicant also lodged an appeal on points of law. It appears that in her appeal she argued that she had confessed to the crime as a result of beatings, torture and threats. She further complained that the hearings before the Court of Appeal had been held without a lawyer. 49. On 14 July 2005 lawyer S. received a letter from the presiding judge dated 1 July 2005 informing her that the first and second applicants had dispensed with her services because of her failure to appear at the hearings of 27 June and 1 July 2005 and returning the text of her final pleading. 50. On 8 August 2005 lawyer S. lodged a supplement to her appeal of 11 July 2005, expressing surprise about the fact that the text of her final pleading had been returned to her and about the grounds on which it had been returned. She alleged that these actions pursued the aim of concealing the violation of the first and second applicants’ right to defence and the failure to ensure order during the court hearings. She requested that the text of her final pleading be included in the case file. She further requested that protective measures be taken at the hearing before the Court of Cassation in order for her to be able to participate, taking into account the manner in which the hearings had been conducted before the courts of first and second instance. 51. On 12 August 2005 the Court of Cassation dismissed the second applicant’s appeal. As regards the allegations of ill-treatment, the Court of Cassation stated that these had been thoroughly examined by the Regional Court and the Court of Appeal and had been rightly found to be unsubstantiated. As regards the alleged absence of a lawyer, the court considered these allegations to be ill-founded, finding on the basis of the materials of the case file that the lawyer had been involved in the examination of the case at the Court of Appeal from day one, namely 22 March 2005. As it appeared from the record of the hearing of 1 July 2005, the second applicant later dispensed with the lawyer’s services because of the latter’s failure to appear at the hearings of 27 June and 1 July 2005. Taking this into account, as well as the fact that the second applicant did not wish to have another lawyer, the Court of Appeal accepted this and informed the lawyer in a letter. 52. As to lawyer S.’s appeal, the Court of Cassation left this appeal unexamined on the ground that the first and second applicants had dispensed with her services and she was no longer authorised to bring an appeal on their behalf pursuant to Section 403 (3) of the Code of Criminal Procedure. 53. On 21 July 2004 the third applicant lodged a complaint with the Armenian Ombudsman. She stated, inter alia, that on 10 July 2004 she had been roughly pushed into a car and taken by Assistant Prosecutor Va.H. and another law enforcement official to Chief Vi.H.’s office. There Va.H. had started to force her to smoke a cigarette, while continually hitting her on the head with his hand and a bottle, saying that it was she who had committed the murder. When she disagreed, they had proceeded to beat her. At that moment Deputy Regional Prosecutor F.B. had entered the office and slapped her with such force that her teeth hurt. One of the officers said “Bend down, bitch” and pushed her to the floor, then F.B., Va.H. and Investigator G.H. started kicking her like a ball. Va.H. ordered her to undress, saying that he had invited a doctor to check if she was still a virgin. When she refused, he pulled off her jacket. They wanted to undress her but she resisted. Then they brought in her mother and beat her, after which they told her to watch how they would murder her daughter, unless they agreed to confess. Then they let her go but only on the condition that she would not tell anyone that she had been beaten. The next morning she was again taken to the police department, where F.B. started hitting her arms and forcing her to write a confession. Then they brought her mother again and made them sit facing each other. They started beating her mother and ordered her to persuade her daughter to confess. Her mother begged her to do so, adding that she would not recognise her father if she saw him, he was in such a bad state, and that it was not shameful to lie after all the ill-treatment they had endured. She decided to cooperate eventually because of her mother’s pleas. 54. On 2 August 2004 the second applicant lodged a similar complaint with the General Prosecutor of Armenia. She stated, inter alia, that on 9 July 2004 she had been taken into custody at the Vardenis Police Department by the Chief of Department Vi.H. and Regional Prosecutor F.B. There she had been beaten by Vi.H. and five other police officers in connection with the murder. Her husband had been kept at the police department for about a month, where he had been beaten and his fingernails had been pulled in order to coerce him to confess, which he had refused to do. The same beating and violence had been inflicted on her and her daughter. For three days Chief of Police Department Vi.H. had beaten her and made her sit in water, after which she had agreed to write the confession dictated to her by Vardenis Investigator G.H. and Regional Prosecutor F.B. The second applicant added that she was prepared to repeat her allegations in court in the presence of the perpetrators. 55. On 10 August 2004 the Ombudsman forwarded the third applicant’s complaint to the General Prosecutor, together with a copy of the medical opinion of the Armenia Medical Centre of 16 July 2004 (see paragraph 25 above). 56. The above complaints were forwarded by the General Prosecutor to the Gegharkunik Regional Prosecutor’s Office for examination. 57. On 19, 25, 26 and 31 August 2004 the Senior Assistant to the Gegharkunik Regional Prosecutor, Y.I. (hereby Senior Assistant Y.I.), took statements from the following law enforcement officers in connection with the allegations of ill-treatment: Gegharkunik Regional Deputy Prosecutor F.B, Assistant to the Regional Prosecutor Va.H., Investigator of the Regional Prosecutor’s Office G.H., Chief of the Vardenis Police Department Vi.H., Head of the Criminal Investigations Unit at the Vardenis Police Department S.M., two officers of that unit Y.M. and K.M., and chief of the temporary detention cell at the police department, V.A. They were asked to provide an account of the contested events. In reply to Y.I.’s request to comment on the second and third applicants’ allegations of illtreatment addressed to some of those questioned, they denied having inflicted any violence on the second and third applicants, claiming that the latter had made false statements. 58. On 30 August 2004 Senior Assistant Y.I. took a statement from the second applicant. She stated that on 9 July 2004 she had been taken by Vi.H. and F.B. to the police department where she had been kept for five days and beaten by Vi.H. and police officers S.M., Y.M., K.M. and V.A. with rubber batons. She had been threatened with a champagne bottle and had been seated on what she believed to be an electric chair. They had demanded that she confess to the murder, otherwise the same would happen to her daughter, husband and other family members. She had then written a confession which was dictated to her. Furthermore, she had met her husband – who had already been in police custody for a month – at a confrontation. His fingernails had been pulled, he had lost weight, and his clothes were stained and torn. When she had asked him what had happened, he had started crying and said that for about a month he had been deprived of sleep and repeatedly beaten. In the meantime her daughter was being beaten in a nearby office. She had not mentioned any of this to the judge at the detention hearing because she had been beaten and for fear that the illtreatment would continue. 59. On the same date the chief of Abovyan detention facility and the head of its medical unit – apparently upon the inquiry of the Regional Prosecutor’s Office – issued a certificate containing the results of the second applicant’s medical examination of 14 July 2004 (see paragraph 23 above). 60. On 31 August 2004 Senior Assistant Y.I. decided to refuse the institution of criminal proceedings on the basis of the second and third applicants’ complaints. This decision stated that: “[The second and third applicants’ complaints of 21 July and 2 August 2004 addressed to the Ombudsman and the General Prosecutor’s Office] have been transferred by the General Prosecutor’s Office to the Gegharkunik Regional Prosecutor’s Office for examination... The Regional Prosecutor’s Office has examined the above complaints, has verified in detail the presented facts, and has taken statements from the employees of the Regional Prosecutor’s Office and Vardenis Police Department mentioned in those complaints and involved in the criminal case. The allegations raised in [the second and third applicants’ complaints] concerning having been beaten or subjected to any other kind of violence have been rebutted. The circumstances have been confirmed by the statements of Regional Deputy Prosecutor [F.B.], Assistant Prosecutor [Va.H.], Investigator of the Prosecutor’s Office [G.H.], Chief of the Vardenis Police Department [Vi.H.], Head of the Criminal Investigations Unit at the said department [S.M.], two operatives of the said unit, [Y.M. and K.M.], and chief of the [temporary detention cell at the police department V.A.]; the certificate of 30 August 2004 of the Abovyan detention facility, according to which [the second applicant] on the date of her admission at [the Abovyan detention facility] (14 July 2004) was examined by a doctor and complained of high blood pressure, pain in her legs and swollen feet. The bruises on [the second applicant’s feet] resulted from swellings which were caused by broken blood vessels. [The first applicant] has not submitted any complaints concerning having been beaten or subjected to any other kind of violence.” 61. The applicants were not informed about this decision. 62. On 8 December 2004 the chief of the Abovyan detention facility and the head of its medical unit addressed a letter to lawyer S., stating that during the medical examination carried out at the time of the second applicant’s admission to the detention facility, namely on 14 July 2004, the second applicant had complained of pain in the legs and swollen feet. The second applicant had been found to have swollen and bruised feet. 63. On 12 December 2004 lawyer S. applied to the General Prosecutor with a request to have criminal proceedings instituted. The lawyer alleged that all three applicants had been ill-treated and coerced to confess at the Vardenis Police Department in June and July 2004. She stated that the perpetrators had been pointed out by the applicants. The lawyer referred to the results of the medical examinations carried out in respect of the second applicant at the Abovyan detention facility on 14 July 2004 and in respect of the third applicant at the Armenia Medical Centre on 16 July 2004. 64. It appears that on 23 December 2004 the General Prosecutor’s Office sent a letter to lawyer S., informing her that the first and second applicants had not been ill-treated by the employees of the Gegharkunik Regional Prosecutor’s Office and the Police Department. 65. On 25 January 2005 lawyer S. re-applied to the General Prosecutor with the same request, claiming that no reply had been received to her previous request of 12 December 2004. 66. On 31 January 2005 the General Prosecutor’s Office sent a letter to lawyer S. with identical content. 67. On an unspecified date lawyer S. contested the actions of the General Prosecutor’s Office, including the two above-mentioned letters, before the courts on behalf of all three applicants. The lawyer complained about the ill-treatment that had been inflicted on the applicants in the period between 8 and 12 July 2004, and indicated the names of the perpetrators, including the Chief of the Vardenis Police Department, Vi.H. and the police officers of that department, Y.M., K.M. and V.A. She alleged that the Regional Prosecutor and the investigative team headed by him were aware of these acts but showed indifference and even facilitated the coercion to obtain prosecution evidence. 68. On 25 March 2005 the Kentron and Nork-Marash District Court of Yerevan left the lawyer’s appeal without examination. The District Court found that a decision had been adopted on 31 August 2004 whereby the institution of criminal proceedings had been refused. According to the prescribed procedure, this decision could be contested before a higher prosecutor or the court of appeal. 69. On 28 March 2005 the third applicant lodged an appeal against this decision. She alleged, inter alia, that she and the other two applicants had been subjected to continual ill-treatment in June and July 2004. She herself had been kept at the Vardenis Police Department on the night from 9 to 10 July 2004 and beaten by the employees of the Gegharkunik Regional Prosecutor’s Office, F.B., Va.H., G.H. and G.H. The Regional Prosecutor, A.M., and Chief of Police Department Vi.H. had been aware of this. She had injuries on her head, face and back and had to stay in bed for several days. Only after her uncle came to visit her upon his return from Russia could she be transferred to Yerevan for a medical examination. The third applicant further stated that she had noticed signs of ill-treatment on her mother, such as bruised hands, swollen face and difficulty walking, during the confrontation which had been held between them. 70. On the same date lawyer S. lodged an appeal with the Criminal and Military Court of Appeal against the decision of 31 August 2004 on behalf of the first and second applicants. In her appeal she argued, inter alia, that neither she nor the applicants had ever been informed about this decision and they had become aware of it only at the hearing before the District Court on 25 March 2005. As regards the substance of this decision, it was adopted by persons who had an interest in the outcome of the case and was based on statements of the alleged perpetrators which lacked credibility. The applicants, however, had never been questioned in connection with their allegations. The lawyer further referred to the numerous complaints lodged by the second and third applicants from June to August 2004 and the results of their medical examinations of 14 and 16 July 2004. 71. On 11 May 2005 the Criminal and Military Court of Appeal examined jointly both issues and decided to dismiss the appeal against the decision of 25 March 2005 and not to examine the appeal against the decision of 31 August 2004 on the ground that it had been lodged outside the one month time-limit for appeal. 72. On 25 May 2005 lawyer S. lodged an appeal against this decision on behalf of the applicants. 73. On 22 July 2005 the Court of Cassation quashed this decision and remitted the case for a new examination on the ground that the Court of Appeal had failed to clarify whether the decision of 31 August 2004 had been duly and timely served on the applicants. 74. On 7 September 2005 the Court of Appeal decided to quash the decision of 25 March 2005 and to reserve a right to the defence to contest the decision of 31 August 2004, since there was no evidence to show that a copy of that decision had been duly served on the applicants prior to their becoming aware of it in March 2005. 75. On 23 September 2005 lawyer S. lodged an appeal with the Court of Appeal against the decision of 31 August 2004 on behalf of the applicants. 76. On 10 November 2005 the Court of Appeal decided to dismiss the appeal. In doing so, the court first confirmed the findings made in that decision and then added that the complaints about ill-treatment had already been examined and dismissed by the Court of Appeal and the Court of Cassation in the course of the criminal proceedings against the first and second applicants. 77. For a summary of the relevant provisions see the judgment in the case of Virabyan v. Armenia (no. 40094/05, §§ 101-114, 2 October 2012). 78. Sections 63 and 64 provide that the suspect and the accused have the right to defence counsel and to be questioned in his presence. The suspect enjoys this right from the moment when he is presented with the investigating authority’s decision on arrest, the record of arrest or the decision on choosing a preventive measure, while the accused enjoys it from the moment when the charge is brought. 79. According to Section 69, defence counsel’s participation in the criminal proceedings is compulsory if, inter alia, the suspect or the accused has expressed such a wish. Defence counsel’s compulsory participation in the criminal proceedings is to be secured by the authority dealing with the criminal case. 80. Section 72 provides that refusal of a lawyer by the suspect or the accused means his intention is to conduct his defence without the assistance of a lawyer. The suspect’s or the accused’s statement refusing a lawyer is to be entered into a record. 81. Sections 98 provides that if the authority dealing with the case discovers that, inter alia, the accused or the defence lawyer is in need of protection from any criminal encroachment, it shall take protective measures upon the victim’s request or of its own motion by adopting an appropriate decision. Such measures are compulsory if the victim or his next of kin has received physical threats or threats against his property or if physical violence has been inflicted in connection with his participation in the trial. The victim’s request for protective measures shall be examined by the authority dealing with the case immediately and at the latest within 24 hours. The victim shall be immediately informed about the decision and served a copy. 82. According to Section 99, protective measures include, inter alia, a warning by the court or the prosecutor of possible criminal prosecution of the person who has made violent or other criminal threats, and measures ensuring the safety of the victim. The person to whom a warning is to be issued shall be summoned by the prosecutor, the investigator or the body of inquiry. Measures ensuring the safety of the victim include, inter alia, taking the victim or his next of kin under personal protection. 83. According to Section 403 (3), an appeal against a judgment of the Court of Appeal can be lodged by the convicted, the acquitted, their lawyers and lawful representatives, the prosecutor, the victim and his representative. | 1 |
test | 001-155284 | ENG | SVK | ADMISSIBILITY | 2,015 | DEGRO v. SLOVAKIA | 4 | Inadmissible | Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Imrich Degro, is a Slovak national, who was born in 1941 and lives in Prešov. He was represented before the Court by Mr I. Jurčišin, a lawyer practising in Košice. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 9 June 2008 the applicant lodged an action against a private company alleging that it had sold him a car that had permanent defects. Accordingly, the applicant asked the court to order the defendant to replace the car or, alternatively, refund him the purchase price. 5. The action was granted by the Prešov District Court (Okresný súd) on 25 June 2010 and, following an appeal lodged by the defendant, its judgment was upheld by the Prešov Regional Court (Krajský súd) on 13 December 2010. 6. The order that the defendant replace the car or refund the purchase price became final and binding (právoplatnosť) on 12 January 2011, following service of the Regional Court’s judgment on the parties. After the expiry of the period allowed for voluntary compliance with the order, the order became enforceable (vykonateľnosť) on 16 January 2011. 7. The defendant then filed a petition with the Office of the Prosecutor General (“the PG”), requesting that the latter exercise his discretionary power to challenge the above-mentioned judgments by way of an extraordinary appeal on points of law (mimoriadne dovolanie – “extraordinary appeal”). 8. At an unspecified time, presumably still in 2011, the PG acceded to the request by challenging the contested judgments in the Supreme Court (Najvyšší súd). 9. In his extraordinary appeal, the PG relied on Article 243f § 1 (c) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “the CCP”), which permits such an appeal on the grounds that the challenged decision is based on an incorrect assessment of points of law. In particular, the PG argued that the courts had misinterpreted the consumerprotection rule pertaining to the case. The rule provided that a consumer who purchased goods or a service that had a reparable defect had the same remedies available to him or her as when the goods or service had an irreparable defect, provided that the supplier of such goods or service had failed to repair the reparable defect within thirty days of being asked to do so. According to the PG, however, that rule was not applicable in a situation where the consumer – such as the applicant in the present case – had not used the remedy related to irreparable defects but had taken possession of the repaired goods despite the fact that the repair had been carried out after the statutory thirty-day period. 10. In his observations in reply, the applicant disagreed with the interpretation of the relevant rule by the PG. It was far too restrictive and disregarded the object and purpose of the consumer protection legislation. He argued that the interpretation of that rule by the lower courts had been correct in his case: since the defendant had failed to observe the statutory thirty-day period for repairing the car, the applicant had been entitled to the remedies granted by those courts. 11. On 27 March 2013 the Supreme Court allowed the appeal by quashing the contested judgments and remitting the case to the first-instance court for re-examination, having fully endorsed the line of argument pursued by the PG. The Supreme Court’s judgment was served on the applicant’s lawyer on 6 May 2013. 12. The proceedings are now pending at first instance. 13. Article 127 reads as follows: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person’s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person’s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated. 4. The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.” 14. Article 1 of the CCP lays down the procedures to be applied by the courts and to be followed by the parties in civil proceedings, with a view to ensuring fair and just protection of the rights and legitimate interests of the parties, and promoting compliance with the statutory law, fulfilment of duties and respect for the rights of fellow citizens. 15. Under Article 101 § 1, the parties to the proceedings are to contribute to the purpose of the proceedings, in particular by giving a truthful and complete description of all the relevant facts, adducing evidence, and abiding by the instructions of the court. 16. Pursuant to Article 120 § 1, the parties to the proceedings are to adduce evidence to uphold their claims. 17. Under Article 159 § 3, as soon as a matter has been resolved by force of a final and binding decision or a judgment, it may not give rise to new proceedings. 18. The relevant provisions concerning appeals on points of law (dovolanie) are summarised, for example, in the Court’s decision in Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 35090/07, §§ 65-68, 4 October 2011, with further references). Appeals on points of law have no automatic suspensive effect, as the power to suspend the enforceability of the impugned decision is entrusted to the Supreme Court (Article 243). 19. Extraordinary appeals on points of law are regulated by the provisions of Articles 243e et seq. 20. The PG has the power to challenge a decision of a court by means of an extraordinary appeal. He or she may do so following the filing of a petition by a party to the proceedings or another person concerned or injured by the decision, provided that the PG concludes that: the final and binding decision has violated the law; the protection of the rights and legitimate interests of individuals, legal entities or the State requires that such an appeal be brought; such protection cannot be achieved by other means; and the matter at hand is not excluded from judicial review (Articles 243e § 1 and 243f § 2). 21. An extraordinary appeal may only be lodged against a ruling in a decision which has been contested by the party to the proceedings or the person concerned or injured by that decision (Article 243e § 2). Unless a statute provides otherwise, the PG is bound by the scope of the petition for an extraordinary appeal (Article 243e §§ 3 and 4). 22. Further conditions of admissibility of an extraordinary appeal are listed in Article 243f § 1. They comprise (a) major procedural flaws within the meaning of Article 237 (see, for example, Ringier Axel Springer Slovakia, a.s. v. Slovakia, no. 41262/05, § 62, 26 July 2011), (b) other errors of procedure resulting in an erroneous decision on the merits, and (c) wrongful assessment of points of law. 23. An extraordinary appeal is to be lodged with the Supreme Court within one year of the contested judicial decision becoming final and binding (Article 243g). 24. If the PG concludes, following the filing of a petition by a party to the proceedings or another person concerned or injured by the impugned decision, that there is the risk of considerable economic loss or other serious irreparable consequences, the extraordinary appeal may be lodged without stating the reasons for appeal. The reasons must then be stated within sixty days of the lodging of the extraordinary appeal with the Supreme Court, failing which the proceedings will be discontinued (Article 243h §§ 3 and 4). 25. If the extraordinary appeal is accompanied by a request that the enforceability of the contested decision be suspended, its enforceability must be suspended following the lodging of the extraordinary appeal with the Supreme Court (Article 243ha § 1). The duration of such a suspension is regulated by Article 243ha § 2, pursuant to which the suspension ceases (a) when the request is dismissed or (b) with a decision on the extraordinary appeal, unless extended by the Supreme Court, no later than one year from the lodging of the extraordinary appeal with it. 26. A copy of the extraordinary appeal is to be sent to the parties to the proceedings for observations. The decision on the extraordinary appeal must be sent to the parties to the proceedings and to the PG (Article 243i § 1 and Article 243j). 27. The results of the ongoing work to re-codify the rules on civil procedure are summarised in a 2013 green paper (Návrh legislatívneho zámeru rekodifikácie civilného práva procesného) of the re-codification commission under the auspices of the Ministry of Justice. The green paper envisaged abolishing extraordinary appeals on the grounds that there are doubts as to their compatibility with the Convention, especially as regards the principles of equality of arms, legal certainty and res judicata. Extraordinary appeals are retained, albeit in a modified form, in the final text of the new Code of Civil Contentious Procedure (Civilný sporový poriadok). 28. In a decision (uznesenie) of 19 July 2000 in an unrelated case (no. PL. ÚS 57/99), the Constitutional Court dismissed a motion by the Supreme Court that certain provisions of the CCP concerning extraordinary appeals were contrary to the Constitution. That motion was lodged by the Supreme Court in the context of extraordinary appeal proceedings instituted by the PG concerning the review of an administrative decision on a restitution claim (see Veselá and Loyka v. Slovakia (dec.), no. 54811/00, 23 November 2004). In its decision, the Constitutional Court observed, inter alia, that the extraordinary appeal was an extraordinary means for ensuring that judicial decisions were not only formally final but also right in terms of content. A clear discrepancy between the degrees of respect shown for those two principles in an individual case could justify an interference with the former principle for the benefit of the latter. However, that would be so only in instances of a striking violation of constitutional principles of procedure, the principle of a fair trial or a denial of justice, which were not amenable to correction by other means. According to the Constitutional Court, for an extraordinary appeal to be acceptable its use had to be limited to instances of the most serious errors in procedure or its outcome (linked to either factual or legal assessment), and to instances where other available legal remedies had been exhausted. Moreover, the Constitutional Court held that by virtue of the power to lodge an extraordinary appeal, the PG was a statutory intermediary for ensuring protection of the rights of the parties and other persons concerned or injured by the contested decision. 29. In a decision of 29 October 2003 in an unrelated case (no. IV. ÚS 197/03) concerning an individual complaint, the Constitutional Court held, inter alia, that in extraordinary appeal proceedings before the Supreme Court the PG did not have the standing of a party to the proceedings as such, but rather had a sui generis standing, similar to that of the parties. In such proceedings, the PG had no subjective interest of his or her own. Rather, the protection from unlawful final and binding decisions pursued in those proceedings served the general interest. 30. In a decision of 3 June 2008 in another unrelated case (no. IV. ÚS 180/08) concerning an individual complaint, the Constitutional Court observed, among other things, that individuals and legal entities that had petitioned the PG to lodge an extraordinary appeal had no legal claim to have such an appeal lodged and that, conversely, the PG was under no legal duty to accommodate the request. It was within the PG’s entire discretion to decide whether or not to lodge an extraordinary appeal. The extraordinary appeal was an extraordinary remedy. There was no legal right to have it lodged on one’s behalf. A petition for an extraordinary remedy did not enjoy constitutional protection and was not covered by the catalogue of fundamental rights. 31. In its decision of 27 September 2012, in an unrelated case (no. 1 M Obdo V 2/2011), the Supreme Court rejected an extraordinary appeal by the PG concerning a property dispute. It held that an extraordinary appeal was not admissible in circumstances where it was open to the party concerned to pursue its rights directly by way of an appeal on points of law. | 0 |
test | 001-150831 | ENG | FIN | ADMISSIBILITY | 2,015 | HEINANEN v. FINLAND | 4 | Inadmissible | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicant, Mr Jukka Tapani Heinänen, is a Finnish national, who was born in 1962 and lives in Espoo. He was represented before the Court by Mr Jyrki Kuusivaara, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant owns all the shares in two limited liability companies. Apparently, in spite of their being limited liability companies, he was the only person running them. 5. In 2004 the tax authorities carried out a tax inspection in the first company and concluded that it had failed to declare and pay a considerable amount of tax and that it had, inter alia, paid salaries off the books and undertaken other fraudulent activities. It appeared that the company had been operating entirely on the black market. 6. The tax authorities carried out a tax inspection in the second company after the police investigation concerning the applicant’s activities had been concluded in 2007. 7. On 2 November 2007 the tax authorities imposed additional tax and tax surcharges (veronkorotus, skatteförhöjning) on the applicant for the tax years 2004 and 2005 as they found that the applicant had withdrawn cash from the second company which the tax authorities considered as disguised dividends. 8. On 27 January 2010 the tax authorities imposed additional taxes and tax surcharges on the applicant for the tax year 2004 as they found that the applicant had also withdrawn cash from the first company which was considered as disguised dividends. 9. The applicant apparently did not appeal against those decisions. The period set for appeal in tax matters is five years counted from the beginning of the calendar year following the year when the initial taxation decision was made. Therefore, the taxation concerning the tax years 2004 and 2005 became final on 31 December 2010 and 31 December 2011 respectively. 10. On 18 May 2005 the local tax office requested the police to investigate the applicant’s activities in relation to the first company. On 14 November 2006 the applicant was arrested. On 20 November 2006 a police investigation into the applicant’s actions in the second company was initiated. 11. On 29 June 2007 the prosecutor brought charges against the applicant for, inter alia, aggravated accounting offence (törkeä kirjanpitorikos, grovt bokföringsbrott) and aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning his activities as the owner of the two companies. 12. On 11 April 2008 the District Court (käräjäoikeus, tingsrätten) delivered its judgment. The applicant appealed against this judgment to the Court of Appeal (hovioikeus, hovrätten), alleging that one of the lay judges sitting in the case had been partial. On 27 June 2008 the Court of Appeal rejected the applicant’s appeal. However, on 6 February 2009 the Supreme Court (korkein oikeus, högsta domstolen) accepted the applicant’s appeal and quashed the lower courts’ judgments. The case was referred back to the District Court for a new examination. 13. On 19 February 2009 the prosecutor repeated the charges. Four counts concerned the applicant’s activity in the first company from 2003 to 2005 and four counts concerned the applicant’s activity in the second company from 2004 to 2005. According to the charges, the applicant was accused of aggravated tax fraud as he had failed to submit a tax declaration for both companies and, consequently, no income tax had been paid or imposed on the companies. On another count of aggravated tax fraud the applicant was accused of not declaring the salaries paid and, consequently, the taxes and social security payments had been too low. The tax authorities joined the charges and presented a compensation claim totalling approximately the amount of avoided taxes. 14. On 13 November 2009 the District Court convicted the applicant, inter alia, of two counts of aggravated tax fraud for having failed to submit a tax declaration for the two companies in question for the tax years 2004 and 2005. He was sentenced to imprisonment for 2 years and 8 months and ordered, together with another convicted person, to pay the tax authorities 435,742.99 euros (EUR) plus interest in compensation. The court also ordered an extended forfeiture of the proceeds of crime. In addition, the applicant was banned from undertaking business activities for five years. 15. By letter dated 12 December 2009 the applicant appealed to the Court of Appeal, requesting that the District Court’s judgment be partly quashed and that a part of the charges be dismissed. He admitted some of the charges. The applicant relied also on the principle of ne bis in idem and the Court’s case-law in that respect with regard to the aggravated tax fraud and the tax surcharges imposed on him in the meantime. 16. On 23 December 2010, after having held an oral hearing, the Court of Appeal upheld the District Court’s judgment. It considered that, as the prosecutor had pressed charges for the first time on 29 June 2007 and the tax surcharges were imposed only after that date, the ne bis in idem principle could not prevent the examination of charges. 17. By letter dated 21 February 2011 the applicant appealed to the Supreme Court, reiterating the grounds of appeal already presented before the Court of Appeal. 18. On 20 June 2012 the Supreme Court, after having examined the question of extended forfeiture of the proceeds of crime and quashed a part of it, upheld the Court of Appeal’s judgment otherwise. 19. Section 57, subsection 1, of the Tax Assessment Procedure Act (laki verotusmenettelystä, lagen om beskattningsförfarande, Act no. 1558/1995, as amended by Act no. 1079/2005) provides that if a person has failed to make the required tax returns or has given incomplete, misleading or false information to the tax authorities and tax has therefore been incompletely or partially levied, the taxpayer shall be ordered to pay unpaid taxes together with additional tax and a tax surcharge. 20. According to Chapter 29, sections 1 and 2, of the Penal Code (rikoslaki, strafflagen, as amended by Acts no. 1228/1997 and no. 769/1990), a person who (1) gives a tax authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently and thereby causes or attempts to cause a tax not to be assessed, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years. 21. The Supreme Court has taken a stand on the ne bis in idem principle in its precedent case KKO 2010:46 which concerned tax surcharges and aggravated tax fraud. In that case it found, inter alia, that even though a final judgment in a taxation case, in which tax surcharges had been imposed, prevented criminal charges being brought about the same matter, such preventive effect could not be applied to pending cases (lis pendens) crossing from administrative proceedings to criminal proceedings or vice versa. However, in July 2013 the Supreme Court reversed its line of interpretation, finding that charges for tax fraud could no longer be brought if there was already a decision to order or not to order tax surcharges in the same matter (KKO 2013:59). 22. The Act on Tax Surcharges and Customs Duty Surcharges Imposed by a Separate Decision (laki erillisellä päätöksellä määrättävästä veron- tai tullinkorotuksesta, lagen om skatteförhöjning och tullhöjning som påförs genom ett särskilt beslut, Act no. 781/2013) entered into force on 1 December 2013. According to the Act, the tax authorities can, when making a tax decision, assess whether to impose a tax surcharge or to report the matter to the police. The tax authorities can decide not to impose a tax surcharge. If they have not reported the matter to the police, a tax surcharge can be imposed by a separate decision by the end of the calendar year following the actual tax decision. If the tax authorities have imposed tax surcharges, they can no longer report the same matter to the police unless, after imposing the tax surcharges, they have received evidence of new or recently revealed facts. If the tax authorities have reported the matter to the police, tax surcharges can, as a rule, no longer be imposed. The purpose of the Act is thus to ensure that a tax or a customs duty matter is processed and possibly punished in only one set of proceedings. The Act does not, however, contain any transitional provisions extending its scope retroactively. | 0 |
test | 001-174622 | ENG | SVK | COMMITTEE | 2,017 | CASE OF BALAN AND OTHERS v. SLOVAKIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property) | Alena Poláčková;Helen Keller;Pere Pastor Vilanova | 8. The applicants are owners of residential buildings which were or still are subject to the rent-control scheme. Under the relevant legislation they were obliged to let their flats to tenants while charging no more than the maximum amount of rent fixed by the State. The legislation precluded them from unilaterally terminating the leases or selling the flats in question to anyone other than the respective tenants. The particulars of the flats affected by the rent control are set out in Appendices 3 and 4 (columns A - F). 9. The situation of the applicants is structurally and contextually the same as that in Bittó and Others v. Slovakia (no. 30255/09, 28 January 2014 (merits) and 7 July 2015 (just satisfaction) and subsequently decided cases concerning the rent-control scheme in Slovakia (Krahulec v. Slovakia, no. 19294/07; Bukovčanová and Others v. Slovakia, no. 23785/07; and Rudolfer v. Slovakia, no. 38082/07, 5 July 2016; Riedel and Others v. Slovakia, nos. 44218/07, 54831/07, 33176/08, 47150/08; Mečiar and Others v. Slovakia, no. 62864/09, 10 January 2017). | 1 |
test | 001-171481 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KOTOV 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 applications nos. 39399/08 and 23272/16, the applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-170531 | ENG | MLT | ADMISSIBILITY | 2,016 | DESIRA AND ELTARHUNI v. MALTA | 4 | Inadmissible | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The first applicant, Ms Claudine Desira, is a Maltese national who was born in 1992. The second applicant, Mr Moamar Ali Melad Eltarhuni, is a Libyan national who was born in 1985. Both applicants live in Zabbar. They are represented before the Court by Dr J. Brincat, a lawyer practising in Marsa. 2. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The second applicant arrived in Malta on 30 December 2005. He had obtained a visa on 28 December 2005 in Tripoli, which was valid for one entry for a duration of ten days, namely from 29 December 2005 to 9 January 2006. 5. The second applicant’s presence in Malta as from 10 January 2006 was thus illegal under the provisions of the Immigration Act. 6. During his illegal stay, the second applicant was charged before the Court of Magistrates in connection with a violent incident which had occurred on 25 May 2006 in the apartment in which he was residing. Following seven months of detention on remand the second applicant was granted bail and was released. The court ordered him not to leave Malta. 7. By a judgment of 9 March 2010 the second applicant was cleared of attempted murder, but found guilty of possessing a knife without a licence. He was sentenced to ten months imprisonment. He served his sentence while his appeal was pending. By an appeal judgment of 2 December 2010 the second applicant was acquitted of all the charges. 8. In 2006, the second applicant met the first applicant, who at the time was fourteen years of age, and they entered into a relationship. The second applicant moved in with the first applicant’s family and has lived in their house since. 9. According to the applicants, a request to issue marriage banns for the couple was rejected on a date that is not clear on the grounds that the first applicant was too young and her parents’ approval was required. The second applicant was also told that he required a visa, as it was not sufficient that he was in Malta on the basis of a court order. Nevertheless, no visa was issued to him, at first because his passport was being held by the police in connection with the court case, and later for unspecified reasons. 10. According to the Government, in 2009 the applicants verbally enquired with the Marriage Registrar about the documents which were necessary to contract a marriage. According to the principal officer of the registry (who gave evidence in later proceedings), the necessary documents were a birth certificate, a free status certificate, a permit allowing the second applicant to marry a non-Libyan woman (as required by the Libyan authorities), a valid passport and a valid visa. The application could not be processed that day as the applicants did not have the required documents. 11. It can be seen in the documents submitted to the Court that on 1 December 2009 the applicants lodged an application with the Civil Court (voluntary jurisdiction), requesting that the court order the Marriage Registrar to issue their banns. The Marriage Registrar objected, noting that the refusal had been a result of the fact that the second applicant had failed to submit the necessary documents, namely (i) a true copy of his birth certificate together with a certified translation, (ii) a free status certificate together with a certified translation, (iii) a passport or a visa covering his stay until the marriage, and (iv) the written consent of the first applicant’s parents. Furthermore, the second applicant had been waiting to undergo a trial by jury. By a decree of 26 January 2010, their application was rejected as the applicants had not produced all the documents required by law. 12. On 24 February 2010 the applicants verbally requested that the Marriage Registrar publish the marriage banns and to this end they produced the second applicant’s birth certificate, a certificate of free status and an expired passport. Since their request was not accompanied by a permit issued by the Libyan authorities allowing the second applicant (as a Libyan national) to marry, as well as a valid passport and visa, their request could not be processed. 13. The applicants put their case to the Ombudsman who by a decision of 22 April 2010 found that the fact that the would-be spouse had not presented a valid visa should not have been an obstacle to the marriage banns being issued. He thus advised the Marriage Registrar to issue the banns. However, the recommendation went unheeded. 14. In the meantime, the second applicant submitted a declaration of good conduct and behaviour, a certified free status certificate and a certified birth certificate. By a letter of 14 April 2010 the Director of the Public Registry declared that the only missing document was the visa. 15. On 29 April 2010 the applicants, assisted by a lawyer, lodged another application with the Civil Court (voluntary jurisdiction), requesting that it order the Marriage Registrar to issue the marriage banns given that the required visa was not a lawful requirement. Alternatively, if the court considered it to be a required document, they requested that the court refer the matter to the constitutional jurisdictions to establish whether there had been a violation of Articles 8 and 12 of the Convention. By means of a decree of 3 August 2010 the court found that, without prejudice to any rights of the applicants of obtaining constitutional redress si et quatenus [if and in so far as], given that it appeared that the applicants had not produced all the necessary documents the Marriage Registrar had been justified in refusing to issue their marriage banns. 16. In 2010 the applicants had a son, who was, however, registered as having an “unknown father” up to the date of the submission of observations, namely when the child was aged five. The applicants submitted that they wished to rectify the position of the child per subsequens matrimonium. 17. On 25 November 2010 the applicants, assisted by a lawyer, instituted constitutional redress proceedings, invoking Articles 8, 12 and 14 of the Convention. 18. By a judgment of 23 February 2012 the Civil Court, in its constitutional jurisdiction, considered that the applicants had exhausted ordinary remedies, no further remedies were available, and it thus found a breach of Article 12 in respect of the applicants’ rights. The court considered that the refusal to issue the banns had not been justified, and ordered the authorities to reverse that decision. In particular, it noted that Article 7 (2) and (5) of the Marriage Act (see paragraph 21 below) did not provide that a passport or visa were to be submitted in order to issue marriage banns. While it was true that a certain amount of discretion was allowed under Article 7 (5), which also referred to “in addition to all other relevant information”, such discretion had to operate to ensure good order and national security, and it had to be reasonable and proportionate to the aim pursued. The court considered that it was justified for a state to require a visa or a passport, nevertheless in the second applicant’s case it appeared that it was not possible to issue him with a visa, though no justification for this had been submitted. Now that the second applicant had submitted all the relevant documents (apart from the visa) and that he had been living in Malta for five years, the court could not find any justification or legitimate aim behind the registrar’’ family life had not been affected in any way and no discrimination had been proved. 19. The respondents, namely the Director of the Public Registry and the Marriage Registrar, appealed. 20. By a judgment of 9 November 2012 the Constitutional Court reversed the first-instance judgment. It considered that the applicants had not exhausted ordinary remedies as they had failed to institute ordinary proceedings before the Civil Court (First Hall) in its civil jurisdiction under Article 35 of the Code of Organisation and Civil Procedure (hereinafter the “COCP” - see paragraph 22 below). The Constitutional Court highlighted that according to domestic case-law, particularly Stacey Spiteri et vs Director of Public Registry, Constitutional Court judgment of 27 April 2012, and the domestic case-law cited therein (see paragraph 23 below) that procedure was a normal and ordinary procedure, one that was regularly used, and there was nothing preventing the applicants from instituting such proceedings. The decree of the court of voluntary jurisdiction could be challenged by an ordinary application before the Civil Court (First Hall) which had the power to confirm, revoke or alter the decree being challenged. In the event of the applicants’ request being acceded to, the remedy would have been an effective one and there would have been no complaint concerning any breach of human rights. 21. The relevant articles of the Marriage Act, Chapter 255 of the Laws of Malta, read as follows: “(1) The celebration of marriage must be preceded by the publication of banns of matrimony. (2) Banns of matrimony shall state the name, surname, place of birth and residence of each of the persons to be married, the place where they intend to contract marriage and, unless the Registrar in the case of natural filiation or other circumstances deems proper to act otherwise, the name of the father and the name and surname of the mother of each of the persons to be married. (5) A request for the publication of banns shall not be entertained unless it is delivered to the Registrar earlier than six weeks before the date of the intended marriage, or than such shorter period as the Registrar may in his discretion accept in special circumstances, and unless and until, in addition to all other relevant information, there are delivered to the Registrar- (a) the certificate of birth of each of the persons to be married; (b) a declaration on oath made and signed by each of the persons to be married stating that to the best of his or her knowledge and belief there is no legal impediment to the marriage or other lawful cause why it should not take place. Provided that if it is shown to the satisfaction of the Registrar that it is impracticable to obtain a certificate of birth required to be delivered by this sub-article, the Registrar may accept instead such other document or evidence as he may deem adequate for the purpose of this article.” “(1) If the Registrar is of the opinion that he cannot proceed to the publication of the banns or that he cannot issue a certificate of such publication he shall notify the persons requesting the publication of his inability to do so, giving the reasons therefor. (2) In any such case, either of the persons to be married may apply to the competent court of voluntary jurisdiction for an order directing the Registrar to publish the banns or to issue a certificate of their publication, as the case may require, and the court may, after hearing the applicant and the Registrar, give such directions as it may deem appropriate in the circumstances, and the Registrar shall act in accordance with any such directions.” 22. Article 35 of the COCP (Chapter 12 of the Laws of Malta) reads as follows: “No appeal shall lie from any decree of the Court of voluntary jurisdiction; but it shall be lawful for any party, who deems himself aggrieved, to bring an action before the Civil Court, First Hall, for the necessary order.” 23. Relevant domestic case-law on the subject matter includes the case of Stacey Spiteri et vs Director of Public Registry (see paragraph 20, above), concerning the registrar’s refusal to issue the necessary banns on suspicion that it would have been a marriage of convenience. The Constitutional Court confirmed the first-instance judgment, noting that the applicable principles to decide whether the applicants have or had at their disposal an alternative and effective ordinary remedy had been underlined by it in various judgments and in particular in Olena Tretyak vs Director of Citizenship and Expatriate Affairs of 16 January 2006. Amongst other principles, the Constitutional Court referred to: the existence of another remedy as an actual and objective fact; that the remedy be accessible, just, effective and adequate in addressing the violation complained of; that for a remedy to be effective it need not guarantee a favourable outcome, but it sufficed that it could be pursued in a practical, effective and efficient manner; that the discretion of the Constitutional Court in this respect must be carried out justly and in the best interest of the administration of justice in order to, on the one hand, avoid that the constitutional jurisdictions be burdened by cases which could or should have been dealt with by other competent courts or through other effective remedies, and on the other hand to ensure that a person is not denied the remedies available under the Constitution or the Convention. It considered that the fact that a remedy is not pursued is not sufficient for the constitutional jurisdictions to refuse to take cognisance of a case, if it is shown that the remedy referred to was not effective to give full redress; however, when it is clear that there exists an available ordinary remedy, that must be pursued before seeking constitutional redress. The Constitutional Court held (in Stacey Spiteri et) that the plaintiffs had failed to challenge the decree of the court of voluntary jurisdiction by an ordinary application before the Civil Court (First Hall), which had the power to annul and revoke the decree being challenged (see also Director of Public Registry vs X, judgment of the Civil Court (First Hall) in its ordinary competence, of 21 May 2008). As had been held by the firstinstance court this was not an extraordinary remedy; it had been used in the past and continued to be used. | 0 |
test | 001-144129 | ENG | TUR | CHAMBER | 2,014 | CASE OF MUSTAFA ERDOĞAN AND OTHERS v. TURKEY | 3 | Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award;Non-pecuniary damage - award | András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 4. The first and the second applicants were born in 1956 and 1975 respectively. 5. At the time of the events the first applicant Mr Mustafa Erdoğan was a professor of constitutional law at the University of Hacettepe in Ankara. The second applicant Mr Haluk Kürşad Kopuzlu was the editor of the quarterly publication Liberal Thinking and the third applicant Liberte A. Ş. was a joint-stock company and the publisher of Liberal Thinking (hereinafter: “the publishing company”). Mr Buhay Baytekin, the president of the board of members of Liberte A. Ş. at the material time, applied to the Court on behalf of the publishing company. 6. In 2001 an article entitled ‘Turkey’s Constitutional Court problem in the light of its decision to dissolve the Fazilet [Virtue] Party’ written by the first applicant was published in Liberal Thinking. It read as follows: “The Constitutional Court has finally delivered its judgment on the Fazilet Party at the end of a long period, which lasted more than two years, and has dissolved the party on the grounds that it had become ‘a hub of activity contrary to [the] principles of secularism’. As a result, the high court has decided that Nazlı Ilıcak and Bekir Sobacı, who were members of parliament at the date of the judgment, [should be] stripped of their parliamentary status and it has prohibited former parliamentarians Merve Kavakçı, Mehmet Sılay and Ramazan Yenidede from participating in political activities for the next five years. Only three members of the Court have dissented and I am of the opinion that their names should be mentioned: Haşim Kılıç, Sacit Adalı and Samia Akbulut. The judgment of the Constitutional Court has naturally created widespread discontent throughout the country. Apart from a few fanatical individuals in the media who have character deficiencies, everyone who is sensible and whose conscience has not been paralysed has considered the judgment legally wrong and politically inappropriate. Even people whose sensitivities to democratic issues have never been that obvious have criticised the Constitutional Court about this judgment. Nevertheless, it is clear that concerns about the difficulties that the judgment might cause Turkey in its dealings with the Council of Europe and the European Union have played a great role in the emergence of this reaction. Moreover, it is commonly believed that this judgment was not the product of the free will of the Constitutional Court but that it was brought about under pressure [from] and at the suggestion of military circles. It is certain that the dissolution of the Fazilet Party is closely related to the current political situation, the direction of which has been determined by the status quo powers (‘the deep State’). However, it seems to me that we cannot be sure whether the Court was put under direct pressure. The first point is important to find out the nature of the present regime in Turkey. From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the Court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices. This can be done only through analysing the judgment from a legal point of view. As a matter of fact, the reasons for judgment have not yet been published. But there is nothing wrong in subjecting the judgment to such an analysis in its form as pronounced to the public. Besides, I do not think that the reasons for judgment when they are published in a few weeks’ time will invalidate our first analysis. Our observations and information regarding the previous judicial approach of the Court demonstrate that the reasoning in the judgment will be ‘prearranged’. In other words, in the established practice of the Court the thing which is termed ‘the reasoning’ is fabricated and formulated at subsequent stages to justify the predetermined judgment [made] on the basis of prior opinions. Now we can submit our first legally relevant observations and evaluation of this judgment. 1. The Constitutional Court did the right thing by not dissolving the Fazilet Party on the grounds that ‘it was a continuation of a party’. The Court might have acted in this way for two reasons: firstly, the Court might have maintained the type of interpretation which it adopted in its previous judgments on the meaning of ‘being a continuation’ of a party. This means that a distinction was made between continuation in the sociological sense and the continuation of a political tradition, and continuation in a technical legal sense among consecutive political parties. This is an extraordinarily appropriate legal understanding. If this is the case, it means that the Constitutional Court considered that the Fazilet Party, while continuing the political line represented by Milli Nizam (national order) and the Milli Selamet Party in the sociological and political sense, was not the continuation of the Refah Party with another title. A second possibility might be the fact that the Constitutional Court adopted the view which is insistently voiced by some constitutional law experts, including the author of this article. According to this view, the Constitution stipulates that ‘a party which was dissolved cannot be re-established under another title’, but neither the Constitution nor the Law on Political Parties require that the sanction of dissolution be applied to such a party if it has acted contrary to the Constitution. If this was the reason for which the Constitutional Court refused the Chief Public Prosecutor’s request to dissolve the Fazilet Party on the basis of it being a continuation of the Refah Party, this only demonstrates that the court did not, at least, violate the positive law in this respect. This in itself does not deserve praise, since acting to the contrary would have been openly unlawful. 2. On the other hand, the Constitutional Court’s decision to dissolve the Fazilet Party on the grounds that it had become ‘a hub of activity contrary to the principles of secularism’ is clearly contrary to the law and has no factual or legal basis. This judgment is faulty on two grounds. Firstly, the activity which is claimed to be ‘contrary to secularism’ – in fact, it is only comprised of words [and] statements – does not have such characteristics. Most of them concern expressions of concern [about] the social consequences of the lack of freedom created by the prohibition on wearing the headscarf. In other words, these statements have the nature of being demands for freedom voiced by Members of Parliament – mostly from the podium of Parliament. Criticism of a prohibition, especially if it is voiced by members of parliament, cannot be contrary to any democratic and constitutional regime. As long as it is voiced in a peaceful way, a demand for freedom cannot be contrary to the principles of secularism and democracy, even if the right or freedom which constitutes the subject of the demand has not been recognised in positive law. Besides, wearing the headscarf is not prohibited for university students in Turkish law. The prohibition on wearing the headscarf which has been implemented in Turkey in recent years is not a requirement of the current legal order, but it is a result of current power relations. In other words, the existence of this prohibition is a de facto and not a de jure phenomenon. Secondly, even if it was against the law for university students to wear the headscarf, this would not make the party whose members are criticising the prohibition and demanding its removal contrary to secularism in a democratic system. Let us leave this fact aside and let us assume that such criticism and such a demand for freedom are contrary to secularism. Even in this case, the fact that some MPs or party members are making such criticism individually does not make the party “a hub” of that activity. In fact, being the “hub” or “focus” of any kind of activity for an organisation means the following: that the activity arose from the centre of that organisation, it is directed, controlled and administered by that centre; and that the activity is performed intensively, decisively and continuously. The facts in the trial record clearly demonstrate that these criteria did not apply to the legal personality of the Fazilet Party. Apart from [the fact that it was] far from being in a position to become the “hub” of the [relevant] activity, the Fazilet Party did not become a determined follower of the issue of the headscarf ban in addition to many other issues. In fact, this party has been the most “obedient” party of the system for the last three years and did not hold a clear and decisive view on any major issue, probably because of the fear of being dissolved. It seems that the Constitutional Court considered Merve Kavakçı’s election as an MP for the Fazilet Party – she is still an MP – and the support given by the party to her as proof of the claim that the party had become “a hub of activity contrary to the principles of secularism”. In other words, according to the Constitutional Court, the election of a citizen who wears a headscarf as an MP and her attempt to take the oath in Parliament while wearing the headscarf are contrary to secularism. This is an unsound understanding for many reasons. First of all, if “national sovereignty” is one of the true – not fake – basic principles of Turkey’s constitutional order, no constitutional organ, particularly the Constitutional Court, whose legitimate authority stems from this principle, can impose any restrictions on the nation’s right to elect its representatives. Merve Kavakçı was put forward as a candidate by the Fazilet Party, but she was elected by the Turkish nation. If the Constitutional Court had found this fact to be contrary to secularism, it would have “annulled” the nation. Secondly, there is no provision in the Constitution stipulating that a person who wears a headscarf cannot be an MP and that she cannot take the oath in Parliament in a headscarf. [Nor does] such a provision exist in Parliament’s standing orders. This can be understood from the fact that an initiative was recently launched in Parliament to add such a prohibition to its standing orders. Besides, even if there were such a provision, this would be considered null and void because it would be contrary to the Constitution. In fact, the Turkish Grand National Assembly does not have the right to act [in a way] which would bring about the abolition of the citizens’ rights to elect representatives and to be elected as representatives, which are one of [their] basic rights. Actually, since the aim of the standing orders is to ensure the conduct of Parliament’s activities in an orderly way, a right cannot be annulled with such a procedural action. 3. This judgment demonstrates that the dominant majority of the Constitutional Court continues to apply its incorrect understanding of what “secularism in a democratic system” is. Unfortunately, the High Court has interpreted secularism in many of its judgments in a totalitarian manner. According to the Court, secularism is not a pro-freedom and pro-peace principle restricting the State, but is a higher principle legitimising the imposition by the State of a certain way of life on citizens. The Constitutional Court considers secularism as the categorical refusal of the demands of religion in the social, public and political arenas. Therefore, it thinks that secularism authorises the State to remove manifestations of religion in society. Moreover, it exalts this principle to the level of being the most important value of the constitutional order. According to this understanding, democracy, the rule of law and human rights are all secondary values, which should [only] be recognised to the degree allowed by secularism. Here, the more interesting point is that the Constitutional Court insists on continuing the doctrine of “secularism as a project of social engineering”, which was developed during the authoritarian (occasionally totalitarian) one-party era, in the democratic-pluralist environment. It also stubbornly ignores the pro-freedom/democratic criticism of this notion. Despite the fact that even the Turkish literature on the subject of “secularism in a democratic system” has expanded to a considerable degree in the last ten or fifteen years, our judges in the Constitutional Court turn a blind eye to this literature. Furthermore, in this trial at least, our senior judges did not need to undertake additional efforts to obtain new sources and information on this issue. For example, there was detailed information in the defence brief on how secularism is understood and implemented in contemporary democracies, but it seems that the members of the Court did not read these passages or if they did, they ignored it. In this connection, the two judgments of the Constitutional Court which directly concerned the issue of wearing headscarves and its judgments dissolving the Refah Party and the Fazilet Party indicate that this matter has become the key focus of secularism. The conclusion which the Court has reached can be formulated as the following: “to demand the freedom of wearing the headscarf means categorically being against secularism – and indirectly against the Constitution.” This is a totally wrong idea regardless of the perspective one has: it is anti-democratic, it is anti-freedom, it is contrary to secularism and it is pro-conflict. It is anti-democratic because it restricts in an arbitrary way the field of democratic politics and the sphere of activity of democratic political actors. It is anti-freedom because it is oppressive and imposing. It is contrary to secularism because it oppresses religious choices and creates discrimination on the grounds of religion. Finally, it is pro-conflict because it forces the State to quarrel with society and in this way it allows the State to destroy the social peace and order. 4. The part of this judgment which ends the MP status of some politicians and prohibits them from involvement in further political activities does not contain valid grounds pertaining to the relevant individuals. Specifically, the application of the sanctions against Nazlı Ilıcak on the grounds that she “was one of the people who brought about the dissolution of their party with their activity contrary to secularism” bears no relation to reality and is a ridiculous assertion. The situation is really awkward. A high court imagines that it protects “secularism” by prohibiting a person from being involved in political activities and by ending the MP status of that individual, who meets the criteria of a “contemporary way of life” and “contemporary personal appearances” perfectly. Everybody knows that she has never been in favour of a political regime established on the basis of religion and that she has never made any effort in this direction. This is a typical example of the attitude of the Court demonstrating the absurd results [its] formalist legal reasoning can produce. 5. All these explanations highlight that the statement of the chairman of the Constitutional Court to the effect that “there is nothing we can do, the laws force us to act in this way, if you do not want us to do so, change the laws”, has no value from a legal point of view. It is true that the Constitution and the laws in Turkey are not pro-freedom; therefore, it is, of course, necessary to improve the positive law. But the major problem in the judgment which dissolved the Fazilet Party is not the unsuitable character of the current law. The problem is that the Constitutional Court interprets the Constitution and the laws which are in force in an authoritarian and narrow-minded way. Let us leave the necessity of the Constitutional Court complying with the provisions of the European Convention on Human Rights and the Strasbourg case-law [to one side]. There are no serious grounds for dissolving the Fazilet Party, even on the basis of the Constitution and the Law on Political Parties. But there is no need [to know] the [provisions of those] laws to understand this fact. The notions which are needed are the notion of law, which does not see legitimacy as the same as the law [itself], a considerable amount of knowledge about the technique of interpretation and legal reasoning and sensitivity to freedom and democracy. In other words, our problem is the fact that most of our constitutional law judges do not know the law, and do not have knowledge of democracy, political and constitutional theory or secularism. Nor do they intend to acquire it. It is assumed that the pro-freedom and pro-democracy case-law of the European Court of Human Rights is brought about by the strict interpretation of the Convention. The real situation is different from the one which is assumed: when deciding on cases on the basis of the Convention, which does not include the concept of a “political party”, the Strasbourg Court concludes them by applying a broad interpretation to the provisions concerning freedom of association and expression in accordance with [general] principles and the universal understanding [of those concepts]. The Turkish constitutional court judges, if they wished to do so and could develop the necessary intellectual skills, could ease the restrictive provisions of positive law in Turkey. So long as they wanted to do so. Moreover, it is difficult to consider the aforementioned statement of the chairman to be sincere. If the problem is [one of] making changes to the Constitution and the law, the Turkish Grand National Assembly actually enacted a statutory amendment, which defined [what it means] for political parties to become a “hub” in a highly reasonable way and which set criteria to ensure its implementation. Why did the Constitutional Court annul this amendment in accordance with an authoritarian understanding? In this case, the problem is related to the fact that our constitutional court judges have not taken on board freedoms, rather than the assertion that the current laws are unsuitable. 6. This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it. It is because of this reason that the obstacle to freedoms in Turkey is not Parliament, which does not change the Constitution and which does not enact the necessary laws. The real obstacle is the Constitutional Court, which does not shy away from being the systematic shredder of freedoms. It is urgently necessary to deal with the issue of membership in the Constitutional Court.” 7. It appears that following the publication of the article all members of the Constitutional Court brought separate civil actions against Mr Mustafa Erdoğan, Mr Haluk Kürşad Kopuzlu and the publishing company (hereinafter “the defendants”), seeking damages for the injury they claimed to have sustained as a result of the applicants’ serious attack on their honour and integrity through the publication of the above article, which had contained, in their view, defamatory passages. 8. The present applications concern the damages claims brought against the applicants by Ms F.K., Mr Y.A. and Mr M.B., judges and in the case of the last claimant, the president, of the Constitutional Court at the material time. 9. Before the domestic courts the applicants maintained that, while the expressions used in the article had been severe in terms of form and style, they had remained within the limits of the freedom of expression, as they had had a basis in fact. In this connection, the applicants, referring to the case-law of the European Court of Human Rights, asserted that the article in question had criticised the judgment of the Constitutional Court with respect to its decision to dissolve the Fazilet Party, that the acceptable limits of criticism should be more extensive for judges, high level public officials and politicians than others, and that value judgments which were made on the basis of fact were in conformity with the law. On this latter point, the applicants, relying on the views of various academics, politicians and journalists, underlined that a segment of the public believed – rightly or wrongly – that the judgment of the Constitutional Court had been given under the influence of the military and that there were certain parallels between the outcome of the judgment and the general political situation existing in Turkey at the time. Likewise, again relying on various articles, notably certain statements made by a number of judges sitting on the bench of the higher courts, including the Constitutional Court, the applicants argued that the statements regarding the lack of skill of the judges sitting at the Constitutional Court were not without any factual basis. The applicants submitted that numerous criticisms had been voiced against the judgment of the Constitutional Court by academics, journalists and politicians, and underlined that the first applicant, who was a professor of constitutional law, had consistently emphasised in his publications that the basic function of constitutional courts – or similar organs – in constitutional democratic systems is to serve as the guarantee of basic rights against arbitrary actions of the State and that high court judges – and indeed judges in general – have to avoid giving judgments corresponding to their ideological opinions and political tendencies. 10. On 28 March 2002 the 17th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Ms F.K., jointly, 2,500,000,000 Turkish lira (TRL – approximately 2,000 euros (EUR)) in damages, plus interest at the legal statutory rate running from the date the article in question was published. 11. In its judgment, the court referred to the following passages: “...it is commonly believed that this judgment is not the product of the free will of the Constitutional Court but that it was brought about under pressure from and at the suggestion of military circles... it is certain that the dissolution of the Fazilet Party is closely related to the current political situation, the direction of which has been determined by the status quo powers (‘the deep State’). However, it seems to me that we cannot be sure whether the court was put under direct pressure... From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices... In other words, our problem is that most of our constitutional law judges do not know the law and do not have knowledge of democracy, political and constitutional theory and secularism. Nor do they intend to acquire it ... This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it.” 12. The court held that the author, in the above statements, had asserted that the members of the Constitutional Court had rendered their judgment under pressure, that the judges of the court did not know the law, and that their professional knowledge and intellectual capabilities were insufficient. It considered that these expressions constituted defamation of the members of the Constitutional Court, including the claimant, who had rendered the judgment ordering the dissolution of the Fazilet Party. 13. On 19 December 2002 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. 14. On 24 March 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 26 April 2003. 15. In the meantime, on 16 July 2002 the 20th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr Y.A., jointly, TRL 3,000,000,000 (approximately EUR 1,755) in damages plus interest at the legal statutory rate running from the date of the publication of the article. 16. In its decision, the court observed that, when read as a whole, the article, instead of merely criticising the establishment, development, and selection of members of the Constitutional Court or providing a technical criticism of the judgment, had contained severe attacks against the judges themselves and their professional or analytical capabilities. Referring to various passages, notably those mentioned by the 17th Chamber above, the 20th Chamber considered that the author, who had accused the judges of serious misconduct such as receiving instructions, of acting irresponsibly and of not being independent and lacking reasonable logic and conscience, had gone beyond objective and technical criticism of the Constitutional Court and its judgment and that the article had therefore defamed the claimants. 17. On 15 April 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. 18. On 3 July 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 30 July 2003. 19. Likewise, on 12 December 2002 the 9th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr M.B., jointly, TRL 2,500,000,000 (approximately EUR 1,557) in damages, plus interest at the legal statutory rate running from the date the article in question was published. 20. In its decision, the court, referring to similar passages to those relied on by the other Chambers, considered that the contents of the article had upset the balance between freedom of expression and the need to protect a person’s dignity and honour, and that the author had overstepped the boundaries of acceptable criticism and had used words which constituted defamation. 21. In this connection, the court stated that the aim of press freedom is to provide correct and truthful news regarding issues of public interest, and that the privileges attached to press freedom were not without limits. It noted in that regard that the freedom of the press was limited by the private law rights and obligations established by the relevant provisions of the Code of Obligations and the Civil Code. The court underlined that in its duty to inform, the press was limited in its criticism by the following rules: truthfulness, public interest, topicality and interconnectedness between the thoughts, the subject and the words used. 22. The court opined that in the present case, while the overall content of the author’s article had been within the boundaries of criticism, certain remarks contained in the article had gone beyond the limits of acceptable criticism, there had not been harmony between the form and the content, the content had gone beyond the subject of criticism, and words used in the article had constituted defamation of the claimant. It held that the author could have made the same criticism without the use of these words. 23. On 18 November 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. 24. On 29 April 2004 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 7 June 2004. | 1 |
test | 001-166936 | ENG | TUR | CHAMBER | 2,016 | CASE OF CEVRİOĞLU v. TURKEY | 3 | Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković | 4. The applicant was born in 1956 and lives in Hatay. 5. On 20 February 1998 the applicant’s ten-year-old son, Erhan Cevrioğlu, was found dead, together with his friend G.B., who was around the same age, after falling into a water-filled hole on a construction site where they had apparently been playing. The cause of death was determined as drowning. 6. The hole on the construction site was covered by the Municipality of Antakya (“the Municipality”) in the aftermath of this tragic incident. 7. Shortly after the incident, criminal proceedings were instigated against the owner of the construction site, H.C. (also referred to as “the employer”) and three officials from the Antakya Municipality for causing death by negligence and failing to comply with the regulations and orders, pursuant to Article 455 of the Criminal Code in force at the material time (Law no. 765). 8. During the course of the criminal proceedings the Hatay Criminal Court of First Instance obtained three different expert reports with a view to determining liability for the death of the applicant’s son. 9. The first report, dated 16 April 1998, was drawn up by three civil engineers. The report noted at the outset that the hole in question, which measured 5 x 15 metres with a 2 metre depth, had been dug in the side yard of the construction for use as a shelter and no safety measures had been taken to enclose it. The hole was located 36 metres from the main avenue and 18 metres from the closest apartment building. The witnesses interviewed at the scene of the incident, including two construction workers, confirmed that no precautions had been taken to cover or otherwise enclose the hole. The two workers indicated that they had initially placed wooden planks on the south side of the hole but had later removed them after discovering that children were throwing them into the hole. They further stated that the construction workers were aware that the hole in question regularly filled up with rainwater and one of them said that they occasionally used the water that accumulated in the hole for construction work. The workers disagreed, however, as to when the hole had been dug: while one of them claimed that it had been there since June or July 1997, the other one said that it had been dug only two months prior to the incident. 10. On the basis of their observations and the witness statements, the committee of experts concluded that the deceased children had been partly at fault for the incident (25%), as the construction site where they had been playing was clearly not a play area. The experts noted that the Municipality also bore 25% responsibility for the two children’s deaths, as (i) they had failed to duly inspect whether the construction, for which it had issued a permit, had complied with the rules on work safety, and to ensure that the construction site had been properly closed off with wooden panels as a safety measure, and (ii) it was not clear on what legal ground it had allowed the digging and the use of the hole in question as a shelter, as such shelters had to be built beneath buildings and not in open spaces. According to the experts, the remaining responsibility (50%) lay with the owner, H.C., who had failed to put in place the necessary safety measures on the construction site, such as building a wooden fence around the hole, erecting warning signs or recruiting a security guard to control access to the construction site. 11. On 25 May 1998 a second report was prepared by three occupational safety experts. Reiterating the factual findings in the previous report of 16 April 1998, the experts identified four main causes of the accident in question: (i) absence of wooden panels around the construction site, which was located in a residential area in close proximity to other houses and public roads; (ii) absence of any railing around the hole; (iii) absence of signs prohibiting entry into the construction site or warning against the water-filled hole on the site; and (iv) lack of diligence of the deceased children. The experts indicated that responsibility for all of the causes identified, save for the last one, lay with the employer, in accordance with the relevant provisions of the Labour Code (Law no. 1475) and the Regulation on Workers’ Health and Occupational Safety in Construction Work (Yapı İşlerinde İşçi Sağlığı ve İş Güvenliği Tüzüğü) in force at the material time. They noted that, according to the information provided to the investigation authorities by the applicant, the hole in question had been open for the past eight to ten months, and a number of residents from the neighbourhood had warned H.C. to take the necessary safety measures against the hazards on the construction site, particularly vis-à-vis children. However, H.C. had disregarded all their warnings, saying that parents were responsible for attending to the safety of their children. They further noted that at the time of the incident the construction work had been suspended and the site had been unsupervised. 12. Relying on the information and evidence they had gathered, the experts concluded that H.C. had principal liability for the incident (75%) on account of his failure to take the necessary safety precautions in and around the construction site in compliance with the relevant laws and regulations. They stressed that the failure to install wooden panels around the construction site was one of the principal reasons for the accident. They further found that the remaining responsibility lay with the deceased children, as they should have been aware of the perils of entering a construction site and approaching a waterfilled hole, even at their young age. The experts considered, lastly, that while the Municipality had a general duty to inspect construction sites and impose penalties for breaches of the laws, they could not be held accountable for failing to conduct inspections, impose safety precautions or issue penalties unless it could be proven with conclusive evidence that the authorities had overlooked the deficiencies on the construction site despite having been aware of them, or had otherwise neglected their duties, which evidence was lacking in the instant case. 13. On 4 April 1999 a third expert report was issued by a committee of experts from the Istanbul Technical University. The report indicated that neither the construction site nor the hole in which the deceased children had drowned had been surrounded by panels or a wooden fence to prevent unauthorised access. Similarly, there had been no warning signs around the construction site or the hole. According to the expert report, H.C. had made the following statements in the aftermath of the incident before the investigative authorities and the trial court: “... [After digging the hole on the construction site], I enclosed the hole with wooden planks. Children kept removing the planks. That is why the hole was not closed off. [At the time of the incident] the hole was filled with water following rainfall. On a previous occasion, we had pumped the rainwater out. I was in Ankara at the time [of the incident]. I have no fault here... . If I had not been out of town, I would have checked the hole and covered it. ... In view of the size and depth of the hole, it was not possible to cover it. We had therefore put planks around it... There were no warning signs around the hole. I was in Ankara when the incident took place, and the construction had stopped while I was gone. The hole filled up with water whenever it rained... It must have filled up again when I was away, there was no opportunity to remove the water.” 14. Referring to the relevant provisions of the Labour Code, the Regulation on Workers’ Health and Occupational Safety in Construction Work and the Municipalities Act (Law no. 1580) in force at the material time (see “Relevant domestic law”, below, for further details), the experts from the Istanbul Technical University found that H.C. and the Municipality were 75% and 25% at fault respectively and that no liability could be attributed to the deceased children. They indicated that since the construction work had started, none of the safety measures required under the relevant legislation had been put in place. Moreover, no permission had been obtained for the digging of the hole or the “shelter” in question, which had claimed the two children’s lives; nor had any safety measures been taken around it to prevent accidents. The experts stressed that the dangers posed by the hole had been aggravated when it rained, as the muddy surface made it easier for people to slip and fall in. The responsibility for failure to take any safety measures around the hole or to prevent access to the construction site, despite the knowledge that the site attracted children, fell firstly on the contractor and then on the Municipality, which was required to inspect the construction site periodically in order to identify deficiencies and issue the necessary warnings; the Municipality authorities had clearly neglected that duty. 15. On 14 April 2000, relying on the third expert report, the Hatay Criminal Court of First Instance held that İ.H.S., who was the director of reconstruction at the Municipality (belediye imar müdürü), and the construction owner, H.C., were 25% and 75% responsible for the incident respectively. Accordingly, the court found the accused guilty as charged. 16. However, on 9 July 2001 the Court of Cassation quashed that judgment, finding that the case should have been examined under Law no. 4616, which provided, inter alia, for the suspension of criminal proceedings in respect of certain offences committed before 23 April 1999. 17. Accordingly, on 6 August 2001 the trial court decided, pursuant to section 1(4) of Law no. 4616, that the criminal proceedings should be suspended and eventually discontinued if no offence of the same or of a more serious kind was committed by the defendants within the next five years. 18. On 16 September 2002 the family members of both deceased children, including the applicant, initiated compensation proceedings before the Hatay Civil Court of First Instance against H.C., his construction company and the Antakya Municipality, arguing that they bore joint responsibility for their children’s deaths. The applicant and his family claimed 5,000,000,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 3,000,000,000 in respect of non-pecuniary damage, together with interest accrued from the date of the incident. 19. On 5 November 2004 an expert report was prepared by a mechanical engineer, who was also an expert on occupational safety, and an architect at the request of the Hatay Civil Court of First Instance. After setting out the circumstances in which the incident had occurred, much like in the previous reports submitted to the criminal court, and referring to the relevant provisions of the Labour Code and the Regulation on Workers’ Health and Occupational Safety in Construction Work, the experts concluded that H.C. bore 85% of the responsibility for the incident on account of his failure to take the necessary safety measures on the construction site, such as erecting wooden panels or other fencing around the site, taking special precautions in those parts of the site that presented a danger of falling, placing warning signs as necessary, informing the construction workers of possible hazards at the construction site and employing a guard to control access to the site. They indicated in particular that the unenclosed hole, which had been opened in June or July 1997, had presented a grave danger for the residents and the children in the neighbourhood, which risk increased when the hole filled with water and became slippery on the edges following rainfall. They also stressed that, according to the relevant Court of Cassation jurisprudence, the responsibility of the employer was not limited to putting the necessary safety measures in place to avert the existing and potential dangers on the construction site, but he or she was also required to supervise compliance with those measures. 20. Turning to the liability of the deceased children, the report held that while it was natural for the children to have been playing out on the street, they should not have entered the construction site and approached the water-filled hole, the dangers of which were obvious bearing in mind in particular that the ground had been slippery at the relevant time. It therefore found that the children bore the remainder of the liability for their own deaths on account of their failure to display the necessary care and diligence. 21. As for the alleged responsibility of the Municipality, the experts stated that the latter had had no involvement in the construction, apart from issuing the necessary permits. Moreover, the accident had occurred within the boundaries of the construction site, and not in a public space or other area under the direct responsibility of the Municipality. In such circumstances, the Municipality could not be held responsible for the deficiencies on the construction site; otherwise, the Municipality would have to be held liable for all accidents occurring in any construction. They accordingly concluded that the owner of the construction site bore sole responsibility for the site. 22. On 22 March 2005 the Hatay Civil Court of First Instance upheld the applicant’s case in part. The court stated that, after examining the findings of the Hatay Criminal Court of First Instance and the expert reports submitted to that court, it had requested a further expert report in order to clarify the conflicting aspects of the previous reports. On the basis of that final report, the court established that the responsibility of H.C. and his construction company for the incident was 85%. It thus concluded that H.C. and the construction company were to pay TRL 5,000,000,000 in respect of pecuniary damage to the applicant and his wife and TRL 3,000,000,000 in respect of non-pecuniary damage to the applicant, his wife and their three surviving children as requested, with interest accrued from the date of the incident. The court dismissed the case concerning the Municipality, as no fault could be attributed to it on the facts before it. 23. On 12 April 2006 the applicant, along with the other claimants, appealed against the decision of the first-instance court. They mainly argued that, despite the Municipality’s liability for the incident having been established in the criminal proceedings, the Hatay Civil Court of First Instance had ordered a new expert report against their wishes, and moreover had disregarded their objections concerning the findings in the said report. The Municipality was clearly responsible for the deaths of the two children for having tolerated the presence of a large and uncovered water-filled hole in the very centre of the city for months on end, yet its responsibility had been disregarded by the first-instance court. 24. On 18 June 2007 the Court of Cassation quashed the judgment with regard to the part concerning the Municipality. It noted that the firstinstance court should have dismissed the case against the Municipality at the outset for procedural reasons, without examining its substance, as the complaints concerning the Municipality’s responsibility to inspect the construction site fell within the jurisdiction of the administrative courts. The Court of Cassation upheld the rest of the judgment. 25. Accordingly, on 11 December 2007 the Hatay Civil Court of First Instance dismissed the case against the Municipality. The court also noted that its previous judgment concerning H.C. and his construction company had become final and that there was no need to render a new judgment in respect of that part of the case. 26. The applicant did not appeal against that judgment, which eventually became final on 16 February 2009. 27. On an unspecified date in 2009 the applicant, together with other family members, brought compensation proceedings before the Hatay Administrative Court against the Municipality for the death of their son and brother Erhan Cevrioğlu due to the alleged negligence on the part of the Municipality in the discharge of its inspection duties. 28. On 31 December 2009 the Hatay Administrative Court requested a copy of the case file pertaining to the compensation proceedings initiated by the applicant and others from the Hatay Civil Court of First Instance. Subsequently, on 29 January 2010 the Administrative Court requested the case file of the criminal proceedings against H.C. and the municipality officials from the Hatay Criminal Court of First Instance. On 23 March 2010 the Administrative Court also requested the applicant’s lawyer to submit the relevant criminal court decision along with the expert reports submitted to that court. 29. On 9 December 2010 the Hatay Criminal Court of First Instance informed the Administrative Court that the relevant criminal case file could not be found. However, on 14 February 2011 the applicant’s lawyer submitted the requested documents to the administrative court. In the meantime, the case file pertaining to the compensation proceedings was also made available by the Hatay Civil Court of First Instance. 30. On 11 March 2011, relying solely on the expert report submitted to the Hatay Civil Court of First Instance on 5 November 2004, and without undertaking any analysis of its own as to the responsibilities of the Municipality under the applicable legislation and whether it had fulfilled those responsibilities, the Hatay Administrative Court held that no fault was attributable to the Municipality on the facts of the instant case and thus dismissed the compensation claims of the applicant and his family. The Hatay Administrative Court emphasised in its judgment that the earlier ruling of the Hatay Civil Court of First Instance, which had apportioned liability for the incident between H.C. and his company and the deceased children, had also been upheld by the Court of Cassation. 31. On 15 November 2011 the Adana District Administrative Court upheld the judgment of the first-instance court, and on 26 April 2012 it rejected rectification requests lodged by the applicant and his family. 32. According to a declaration submitted to the Hatay Civil Court of First Instance on 23 October 2013 by the lawyer who had represented the applicant in the proceedings before that court, the applicant and his family had not received any compensation from H.C. and his company, nor had they commenced enforcement proceedings against the latter. | 1 |
test | 001-170498 | ENG | HRV | ADMISSIBILITY | 2,016 | BRKIĆ AND OTHERS v. CROATIA | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković | 1. The applicants, Mr Ivica Brkić, Ms Davorka Tkalić and Ms Željka Vidić, live in Zadar. The first and the second applicants were born in 1972 and the third applicant in 1968. They were represented by Mr Z. Zrilić, a lawyer practising in Zadar. 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 an unspecified date the applicants brought a civil action in the Zadar Municipal Court for damages against the State caused by the killing of their mother, K.-J.B., born in 1935. They alleged that their mother had been killed by firearms in front of her house in Z.G. village on 11 March 1992 when that village had been occupied by Serb paramilitary forces. She had been killed solely because of her Croat ethnicity. Therefore, her death had been motivated by ethnic hatred and had had no connection to any military or belligerent activity, which was also evident from the fact that she had not had arms on her person nor could she have put up any resistance. On the same day four other persons of Croat ethnicity had been killed in the same village. Such an act had amounted to an act of terrorism under the Liability Act (see below). 5. On 5 January 2007 the claim was dismissed. The Municipal Court held that about a third of the territory of the State had been occupied and that the civilians killed on that territory had been mostly of Croat ethnicity, as had the applicants’ mother. It further held that the applicants’ mother had been killed by one S.M., a member of the Serb paramilitary forces during the armed conflict between these forces and the Croatian Army. Therefore, the killing of the applicants’ mother was war damage within the meaning of the Assessment of War Damage Act, for which the Republic of Croatia was not liable. As to that conclusion, the relevant part of the judgment reads as follows: “It is not disputed between the parties that on 11 March 1992, the day of the killing of K.-J.B., the village of Z.G. was part of the occupied [territory of the State] ... The decision on investigation in respect of the accused S.M. ... shows that K.-J.B. was one of the victims of the same perpetrator, killed on 11 March 1992 in Z.G. during an exchange of fire between Serb paramilitary forces and the Yugoslav Army on the one side and the armed forces of the Republic of Croatia on the other side ... ... This court holds that section 2(2) of the Assessment of War Damage Act is applicable in the case at issue ... The killing of K.-J.B., a civilian of Croat ethnicity, in Z.G., which was at the time a part of the occupied [territory of the State], by a member of a paramilitary group – the so-called territorial defence force of the so-called Republic of Serb Krajina whose paramilitary force operated within the so-called Yugoslav Army – is direct life-threatening damage under section 2(2) of the Assessment of War Damage Act, and from the claimant’s position it concerns non-pecuniary damage on account of the death of a parent. Therefore, the damage in the specific case was indisputably caused by the enemy, illegal groups or allies of such groups[, and that] damage was caused in the period [provided in] section 1 of that Act, as K.-J.B. was killed on 11 March 1992.” After concluding that the killing of the applicants’ mother was war damage, the Municipal Court also held that it had been a terrorist act for which the Croatian State was not liable as it had had no control over the occupied territory of the State. The relevant part of the judgment reads as follows: “The crucial aspect which is missing and is a condition for the liability of the Republic of Croatia as a State for the damage in this case is its sovereignty. The defendant had no sovereignty over Z.G., which was a part of the broader, temporarily occupied territory of Croatia at that time, during the Homeland War. It did not have control over the territory and inhabitants of that territory, the basic elements of State sovereignty. Thus, as said above, the act of damage ... amounts to an act of terror, that is to say an act of violence committed for political motives with the aim of causing fear, terror and the feeling of personal insecurity in citizens. However, the terrorist act of the killing of the applicants’ mother by a member of the occupying enemy Serb paramilitary forces was done in occupied Croatian territory, that is to say in the territory where the Republic of Croatia had no sovereignty before the act of damage occurred, on the day when it occurred, or for years afterwards. Given the time (during a state of war), the territory (occupied Croatian territory), and all the circumstances in which the damage occurred, this court concludes that [the act of damage] in the case at issue amounts to a terrorist act which in these circumstances could not have been prevented by the State or its bodies. The defendant did not contribute to such acts of terror or violence in any manner, but instead it attempted to prevent them by all legitimate means, including the defensive Homeland War, one of the aims of which was the liberation of the occupied Croatian territory in which, in the end, it succeeded.” 6. The applicants then lodged an appeal in which they argued that the Municipal Court had held contradictory views, stating that the killing of their mother was war damage for which the State was not liable and at the same time that it had been a terrorist act for which the State was not liable because it had had no control over the territory where the damage had occurred. The applicants asserted that the killing of their mother had been a terrorist act and that the State’s liability could not be excluded only because it had occurred in occupied territory. They argued that the legislation governing the State’s liability for terrorist acts provided that this liability was based on the principles of solidarity, equal distribution of the public burden and fair and prompt compensation, and that State liability existed irrespective of whether a perpetrator had been identified, criminally prosecuted or found guilty. In the applicants’ view, this implied that the State was liable for damage not because it had responsibility for it but as an act of social solidarity with victims of terrorist acts. 7. The first-instance judgment was upheld by the Zadar County Court on 10 September 2009, which endorsed the reasoning of the Zadar Municipal Court. 8. The applicants then lodged an appeal on points of law in which they reiterated their arguments from the appeal and pointed out that the appeal court had not addressed these arguments. On 12 April 2011 the Supreme Court upheld the lower courts’ judgments. The relevant part of the Supreme Court’s judgment reads: “... even though the damage was caused by violence with terror as one of its essential elements, it does not amount to a terrorist act within the meaning of section 1 of the Liability Act, but was caused by belligerent activity of the enemy military or paramilitary forces with the aim of provoking fear in and displacement of the civilian population and has the characteristics of war damage for which the Republic of Croatia is not liable” 9. The applicants’ subsequent constitutional complaint was dismissed on 19 January 2012. The decision was served on the applicants on 21 February 2012. 10. The relevant part of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations of 23 July 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003 – “the 2003 Liability Act”), which entered into force on 31 July 2003, provides as follows: “(1) This Act regulates liability for damage caused by acts of terrorism or other acts of violence committed with the aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ... (2) A terrorist act within the meaning of this Act is especially an act of violence committed for political reasons [motives] with a view to stirring up fear, terror or feelings of personal insecurity in citizens.” “The Republic of Croatia shall be liable for the damage referred to in section 1 of this Act on [the basis of] the principles of social solidarity, equal distribution of the public burden and fair and prompt compensation.” “The obligation to compensate damage under this Act exists irrespective of whether the perpetrator has been identified, criminally prosecuted or found guilty.” “The victim shall have the right to compensation [in the form of damages] for damage resulting from death, bodily injury or impairment of health.” 11. The Liability Act (Croatian Army and Police) (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003 of 23 July 2003) outlines the conditions under which the State is liable to pay compensation for damage caused by members of the army and the police during the Homeland War. The relevant provisions read as follows: “The present Act governs the liability of the Republic of Croatia for damage caused by members of the Croatian Armed Forces and the police force in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996.” “The Republic of Croatia is liable under general rules governing liability for damage only in respect of damage defined in section 1 hereof which does not have the character of war-related damage.” “(1) War-related damage within the meaning of this Act is, in particular: – damage caused at the time when and in territory where military actions were carried out with any means of war ... (bombardment, shelling, machine-gun fire, explosions, mining, movement of troops and the like); – damage resulting in direct and concrete military gains if, given the time and place where it occurred, it directly served military operations, and in particular: (a) damage which was a direct consequence of any protective or planning measure which the competent military authorities carried out with the aim of removing or preventing an enemy attack; (b) damage which was a direct consequence of protective or planning measures which the competent military authorities carried out in anticipation of an enemy action (work in fields, confiscation of movable property, occupation of real estate and the like); (c) damage which was a direct consequence of measures taken with the aim of preventing the consequences of the damage described in subsection 1 of this section from spreading or of alleviating such consequences; – damage which, having regard to its results and the specific time and place where it occurred, was directly caused by the state of war and is directly connected with military operations (direct consequences of war events in connection with unrest, turmoil, panic, evacuations and similar events [occurring] immediately after the military operations have been carried out). (2) It is to be presumed that the damage caused by members of the Croatian Armed Forces and the police force in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996 is war-related damage, if it occurred at the time when and in territory where military combat actions took place, but the injured party may prove the opposite.” 12. The relevant part of that Act (Zakon o utvrđivanju ratne štete, Official Gazette nos. 61/1991 and 70/1991) reads: “[This Act provides for] the setting up and the activities of the State, municipal and special commissions for the listing and assessment of war damage caused [in the territory] of the Republic of Croatia to its natural and legal persons, and in connection with enemy activities and military operations carried out against [the Republic of Croatia] in the period from 15 August 1990 until the termination [of the said activities].” “War damage within the meaning of this Act, is pecuniary and non-pecuniary damage, direct and indirect damage, and in particular: 1. damage caused to bodily integrity, life and health of persons, freedom or dignity; ... War damage, within the meaning of this Act, is damage caused by enemy, illegal forces, legal bodies of the Republic of Croatia, as well as allies of the said forces and bodies, when it was indirectly or directly caused in the period mentioned in section 1 of this Act.” 13. The Supreme Court has held that the Republic of Croatia was not liable for war-related damage caused by enemy forces on the occupied territories (for example in its judgments nos. Rev-90/09-2 of 9 June 2010; Rev-1199/08-2 of 2 June 2010; Rev-1264/08-2 of 17 March 2011; and Rev-848/10-2 of 19 June 2012). In the latter the Supreme Court endorsed findings of the lower courts that the killing of persons at the occupied territories amounted to war-related damage and added, in so far as relevant, the following: “Even though the act giving rise to the plaintiffs’ claim for damages presents certain similarities with a terrorist act since [both] imply [an act of] violence, the act of damage [in the present case] differs significantly from terrorist acts in its features since it contains additional elements and amounts to war-related damage for which the defendant is not liable. This is because the damage did not occur in the territory under the de facto sovereignty of the Republic of Croatia but in the then occupied territory, where there was no possibility for lawful action by the bodies of the Republic of Croatia; this circumstance excludes the otherwise objective liability of the defendant. Furthermore, the act of damage in the present case was not carried out with the sole aim of seriously disturbing public order (this being the aim characteristic of an act of terror) but also involved the use of force, killing and expulsion of the civilian population on that territory with the aim of destroying the internal security and stability of the Republic of Croatia and preventing its lawful bodies from functioning. ...” | 0 |
test | 001-179885 | ENG | LTU | CHAMBER | 2,018 | CASE OF TUMELIAI 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) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicants were born in 1968 and 1972 respectively and live in Vilnius. 6. On 28 May 2003 L.G. sold a plot of forest land measuring 0.4807 hectares to the applicants. The purchase agreement categorised the land as forest. 7. In February 2005 a registration certificate was issued for the plot of land. It categorised the land as forest and determined special conditions on use of the plot, namely, that restrictions applied to the use of the whole plot and that there were surface water protection zones. 8. On an unspecified date, the first applicant asked the Molėtai District Court to establish as a legal fact that there used to be some buildings on the 0.4807-hectare plot. On 22 September 2005 the Molėtai District Court established as a legal fact that there used to be some buildings (a cattle shed and a storehouse (galvidė ir klojimas) there. The court noted that the first applicant was the owner of a plot of forest land on which construction of new buildings was prohibited, unless it was a reconstruction of a former residential property. The court found that a former residential property had been situated outside the boundaries of the first applicant’s plot but held that if the requested legal fact was established, he would be able to reconstruct the buildings previously sited there (nustačius prašomą faktą, pareiškėjas įgis teisę atstatyti jo valdomame žemės sklype buvusius statinius). A representative from the Utena District environmental protection department of the Ministry of the Environment (hereinafter “the Utena environmental protection department”) had no objections to the establishment of the legal fact. 9. In November 2005 the first applicant asked the authorities to issue him with the relevant documents necessary for construction. The Utena environmental protection department stated that the construction of a building had to comply with the Law on Construction; the existing flora had to be preserved and the method of waste collection had to be decided on. The permanent committee on construction of the Molėtai Municipality verified the documents submitted by the first applicant and recommended that he be issued with a building permit. 10. On 22 November 2005 the Molėtai Municipality issued the first applicant with the documents necessary for construction, in accordance with the domestic regulations, in particular with Government Resolution no. 1608 (see paragraph 49 below). It was indicated that anyone intending to carry out construction work was required to preserve existing flora, and was not allowed to block the shore of the lake or interfere with the existing landscape. 11. On 5 December 2005 the Molėtai Municipality issued the first applicant with a permit to build a summer house (non-residential building). The permit was valid for ten years. 12. In 2007 the plan of the building was specified (the facades were modified) and the amendments were verified by the Utena environmental protection department. 13. In March 2007 the Utena County Administration issued a certificate about the summer house as 97% finished and following that, on 2 April 2007 the house was registered in the Centre of Registers (Registrų centras) as 97% finished. 14. On 2 May 2011 the Ministry of the Environment received a report via a hotline for allegedly illegal construction work. On 10 May 2011 the authorities estimated the distance between the house and the lake at 27 metres, and between the terrace of the house and the lake at 24.5 metres. 15. On 5 August 2011 the prosecutor’s office started court proceedings and asked the domestic courts to revoke the recommendation to grant the first applicant building permission; to annul the building permit and oblige the applicants to demolish the building at the expense of the established guilty parties, that is the applicants, the Molėtai Municipality, and the Utena environmental protection department. The prosecutor claimed that the building permit could not have been issued in accordance with the relevant provisions of domestic law (see paragraphs 39, 42, 43 and 49 below). 16. On 4 June 2012 the Molėtai District Court dismissed the prosecutor’s complaint, holding that the legal facts had been established in September 2005 (see paragraph 8 above). It had not been until 2006 that the Supreme Court had held that the sole fact that the storehouses had been sited on a specific plot of land, without any proof that a residential building had been sited there, did not mean that there had previously been a residential property there (see paragraph 56 below). The District Court further held that in accordance with relevant legislation in force at the time, it was possible to construct new residential buildings in the place of former buildings, as well as to reconstruct existing residential buildings and construct necessary storehouses (see paragraph 49 below). Moreover, it had been established that any construction work in the forest could only be started after having received building permission and in accordance with the relevant plans. That legislation had been repealed after the Constitutional Court had declared that the domestic regulations were in breach of the laws and, by extension, of the Constitution (see paragraph 53 below). The court thus held that the case-law on construction in the forest had been established after the building permit had been issued to the first applicant. The court further held that the applicants had built the building lawfully, there was no evidence as to any negative consequences of the construction for the environment or the public interest. The court also observed that in the applicants’ case it would be unreasonable and unjust to apply the measure established in the Civil Code – to oblige the applicants to demolish the buildings (see paragraph 29 below). Moreover, the court was not convinced that the environment would be restored to its previous state if the buildings were demolished because the demolition would also cause some environmental damage. 17. The prosecutor appealed. On 4 December 2012 the Panevėžys Regional Court allowed the prosecutor’s appeal. The court held that the Molėtai District Court had established as a legal fact that there used to be a cattle shed and a storehouse on the applicants’ plot of land (see paragraph 8 above). A summer house could not be constructed as it did not fall within the category of buildings that could be constructed in the forest. Even the Molėtai District Court had emphasised that the construction of new buildings was prohibited on that plot. The building permit had obviously been issued to the first applicant unlawfully and, in the appellate court’s view, the latter had asked the court to establish a legal fact for the sole purpose of constructing a house. The court also held that neither the Law on Forests nor the Law on Land provided for any exceptions, so the right to construct buildings on the plot of forest land had never existed. The court thus ordered the first applicant to demolish the buildings at the expense of the applicants, the Molėtai Municipality and the Utena environmental protection department. The Court did not explain how the costs of demolition had to be divided between the three parties. 18. The applicants, the Molėtai Municipality and the Utena environmental protection department lodged an appeal on points of law. The applicants claimed that the appellate court had breached the principle of lex retro non agit by assessing the documents, issued in 2005, in view of the ruling of the Constitutional Court of 2006. They also claimed that the appellate court had breached their legitimate expectations to execute their proprietary interests in accordance with the domestic regulation in force at the time. 19. On 27 September 2013 the Supreme Court held that relevant laws provided that the only buildings that could be constructed in the forest were timber storehouses and other buildings for forestry equipment. There were no provisions allowing construction of residential or commercial buildings in the forest. It was in certain cases possible to change the purpose of the land, but as the land in question was situated in a surface water protection zone, any such change was prohibited. The court held that although the applicants referred to the Regulation of Construction on Private Land (see paragraph 49 below, hereinafter the “Regulation”), none of the provisions of that Regulation could be interpreted as allowing construction of the buildings in question. There was no argument that the buildings in question had been constructed where farm buildings had previously been sited, thus the provision of the Regulation allowing construction where residential buildings had previously been sited did not allow the applicants to construct a summer house. The court thus held that the construction had been illegal. As regards the removal of the consequences of illegal construction, the court held that it was crucial to assess the consequences of the illegal construction for the environment and the public interest, the consequences of the demolition of the buildings, the possibility of restoring the environment to its state before the illegal construction, and whether the persons who had acquired property rights had acted in good faith. In cases where the construction was in breach of the territorial planning documents and/or the imperative requirements of environmental protection, heritage protection and protection of protected areas, a decision to legalise the illegal construction could not be taken. The court thus had to assess whether the construction in question should have been carried out at the relevant time. It held that legalisation of the buildings in question was impossible and that demolition had to take place (see paragraphs 46 and 47 below). As to the applicants’ argument that the appellate court had breached the principle of legitimate expectations, the court held that the construction in question had been prohibited by the relevant domestic legislation in force at the time. Even if the applicants had misinterpreted the provisions of the Regulation, the Constitutional Court had found the Regulation to be inconsistent with the law, and, by extension, with the Constitution on 14 March 2006, only three months after the building permit had been issued to the first applicant. The applicants should therefore have been able to understand the consequences of constructing illegally and to avoid them. Although the authorities were partly responsible for the illegal construction, that fact per se did not mean that all illegal construction had to be legalised in order to protect the legitimate expectations and proprietary interests of the owners. The legal regulation established the responsibility of the authorities for the unlawful issue of the construction permit. As a result, the court upheld the decision of the Panevėžys Regional Court (see paragraph 17 above). 20. On an unspecified date the bailiff asked the Molėtai District Court to explain the order to enforce the Panevėžys Regional Court’s decision. On 12 February 2014 the Molėtai District Court dismissed the bailiff’s request because she had failed to provide specific details as to what required clarification. 21. It appears that the applicants asked the bailiff to suspend the execution of the judgment and that their request was refused. 22. On an unspecified date the applicants applied to the Utena District Court to overrule the bailiff’s refusal to suspend the execution of the judgment and to suspend it until the case had been examined at the European Court of Human Rights. On 23 December 2015 the Utena District Court held that domestic law did not oblige the bailiff to suspend the execution of judgments if the applicants had lodged an application with the European Court of Human Rights. However, the Code of Civil Procedure provided that there would be grounds for reopening the proceedings if the European Court of Human Rights found that a domestic court decision had breached an applicant’s rights under the Convention or one of its Protocols (see paragraph 32 below). The court held that if the national court’s order to demolish the building was executed, the possibility of reopening the proceedings after a positive outcome for the applicants in the European Court of Human Rights would become complicated. On the other hand, if the European Court of Human Rights adopted a different decision, the demolition of the buildings would still be possible. The court observed that the applicants’ building did not infringe the rights of third persons as it was sited on a plot of forest land that belonged to the applicants. As a result, the Utena District Court suspended the execution of the judgment pending a decision by the European Court of Human Rights. 23. The State Territorial Planning and Construction Inspectorate lodged a separate complaint, but on 15 March 2016 the Panevėžys Regional Court upheld the first-instance decision. | 1 |
test | 001-177074 | ENG | GEO | CHAMBER | 2,017 | CASE OF KUPARADZE v. GEORGIA | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court) | André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1992 and lives in Tbilisi. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 9 November 2006 a classmate of the applicant, Mr T.T. (hereinafter “T.T.”), was stabbed several times in a secondary school playground. The applicant, aged fourteen at the material time, was present at the scene. There were no eyewitnesses to the incident. 8. According to the applicant’s version of the events, on the above date and at the material time, she met with T.T. in the school playground. They were discussing T.T.’s need for a certain sum of money when four young men – strangers to the applicant – appeared and two of them immediately attacked T.T. One of the two attackers held T.T. down on the ground and both men stabbed him several times with two different knives. The applicant claimed that T.T. had owed them money. One witness (“the witness”) stated that at the material time she had seen two young men fitting the description given by the applicant climb into the school playground swearing and leave after a while. 9. According to the official version of the events based on T.T.’s statements, the applicant and T.T. met in the school playground following the former’s promise to lend T.T. a certain sum of money. In the course of the conversation, T.T. kneeled with his back to the applicant. At that moment, the applicant hit him on the head. T.T. fell to the ground and the applicant stabbed him with a knife from behind. While T.T. remained conscious, the applicant held him down with one hand and continued stabbing him with the other. T.T. was facing the ground during the entire incident and could not see whether the applicant was using a knife. T.T. managed to escape from the applicant and ran approximately forty metres before falling unconscious on the school’s basketball court, where he was eventually found. Later he was transported to a hospital where, after emergency surgery, his life was saved. 10. On 14 November 2006 the applicant was arrested in view of T.T.’s statement given to the investigating authorities. She was subsequently remanded in custody on charges of attempted aggravated murder. 11. On 9 January 2007 a forensic expert report of the Ministry of the Interior (“the first MI report”) confirmed that multiple wounds had been inflicted upon the victim with “a sharp object, possibly a knife”. A forensic chemical examination report no. 443/sq produced by the Ministry of the Interior (“the second MI report”) found particles of grey cotton fibre on the applicant’s jacket that by their colour, structure, and type were similar to the grey cotton fibre contained in the textile of the victim’s jacket. 12. On an unspecified date an initial forensic medical expert report no. 6135 by the National Forensic Bureau (“the first NFB report”) concluded that T.T.’s wounds had been inflicted with a sharp object and that taken together, they had been life-threatening. The expert attached particular importance to two wounds to the chest which had perforated T.T.’s lungs. Between 16 and 20 February 2007 the same forensic expert carried out an additional examination and issued report no. 998/31 (“the second NFB report”) at the applicant’s request. The second report specified that six wounds had perforated T.T.’s lungs and re-confirmed that “all the wounds had been inflicted with some sharp object/objects and, taken together, were life-threatening.” Concerning the question of whether the injuries were inflicted on the victim with one or several weapons, the NFB expert stated: “In order to answer that question it is necessary to convene a panel of forensicmedical experts, and additionally to have the clothes as well as the object/objects possibly used to inflict the injuries presented, if available.” 13. The expert testified during the proceedings before the first-instance court that the discrepancy between the first and the second NFB reports concerning the number of wounds inflicted on the victim had been caused by the poor quality of the photocopied material relied on during the first NFB expert examination. The expert confirmed that the second NFB report was therefore more accurate and six, rather than two, wounds had perforated T.T.’s lungs. The exact figure depicting the total number of wounds was not explicitly specified either by the experts or by the domestic courts. 14. On 12 June 2007 the Tbilisi City Court found the applicant guilty as charged and sentenced her to ten years’ imprisonment, of which the last five years were suspended on probation. Dismissing altogether the applicant’s version of the events and relying on T.T.’s statements, the first and second NFB reports, the first and the second MI reports and other evidence in the case, the court found that the applicant had stabbed T.T. “with a knife.” The knife was never recovered. Amongst certain other items of evidence, the City Court also referred, in its judgment, to statements of several witnesses, schoolmates of the applicant, according to which the latter was known for having been carrying a knife with her at school on a regular basis. 15. The applicant appealed, reiterating that the victim had been stabbed by two young men with two knives and that she could not possibly have inflicted the wounds alone. She argued that the witness statement supporting her version of the events had been rejected arbitrarily. During the trial at the Tbilisi Court of Appeal, in accordance with Article 364 § 1 of the Code of Criminal Procedure (see paragraph 40 below), the defence adduced in evidence two alternative forensic reports, both issued on 2 November 2007, and argued that their results supported the applicant’s version of the events, including the use of two knives, and conclusively excluded the applicant’s guilt. 16. The first report, of a comprehensive alternative forensic expert examination, was prepared by a panel of experts at a private forensic science centre. The descriptive part of the report no. 42/k, which reflected results of an examination carried out between 25 October and 2 November 2007 (“the first alternative forensic report”), was based on the following material: the judgment of the first-instance court, T.T.’s statements, the applicant’s statements, the first MI report and T.T.’s medical file. 17. The applicant’s lawyer presented the panel of experts with the following questions: “1. Based on the [existing evidence and the victim’s statements] ... was the victim capable of showing resistance to G. Kuparadze or otherwise defending himself ...? 2. Considering the existing material, what type of pain and responsive reactions (self-defence, etc.) would the [victim] have had at the time the first injury was inflicted on him? 3. In view of the [victim’s] statements and considering the mechanism used to inflict the injuries described in the [forensic reports], how plausible is it that G. Kuparadze inflicted them on the [victim] by holding his shoulder with one hand while the latter was initially kneeling and then crawling on the ground face-down? 4. In view of the convicted G. Kuparadze’s statement, how possible is it that the [victim’s] injuries described in the [forensic reports], given the mechanism used to inflict them, were inflicted by two different persons if one of them had been holding [the victim]?” 18. excerpts from the applicant’s criminal case file with the following concluding paragraph: “Given that the [first-instance] court accepted the [victim’s] statements and dismissed the statements given by the convicted G. Kuparadze and [the witness], that the statements given by the [victim] and the convicted G. Kuparadze essentially contradict each other, that there is no eyewitness in the case except for [the witness], as well as the fact that the weapon of the crime is missing, the lawyer commissioned the alternative expert examination to determine the truth regarding the case and in order to receive answers to his questions.” This was followed by a more detailed account and an assessment of the matter. 19. After examining all the material at hand, the experts came to the following conclusions in response to the questions posed by the applicant: “1. ... Before losing consciousness, T.T. was able to carry out various active measures (self-defence, punching, running, etc.). 2. ... [considering the nature of the injuries] T.T. would have experienced a sharp, strong pain at the moment of their infliction which would have triggered adequate self-defensive or other movements. 3. Considering the statement given by T.T. ... the location of the wounds ... and the anatomical-physiological differences between the sexes ... it is hard to imagine how G. Kuparadze could have inflicted the wounds on T.T. in the conditions described by the latter. 4. Considering the nature and location of T.T.’s wounds, it is entirely possible that they were inflicted in the conditions described by G. Kuparadze (by two individuals, one holding T.T. and both stabbing him with knives).” 20. The applicant’s lawyer commissioned a second forensic expert report from the Research Centre for Independent Forensic Examinations of the Georgian Technical University concerning the instrument of the crime and other technical aspects of the incident. The report no. 2-e-116, which reflected results of an examination carried out between 19 October 2007 and 2 November 2007 (“the second alternative forensic report”), was based on the following material: the statements of T.T., the statements of the applicant, the first MI report, the second NFB report, T.T.’s medical file and the first-instance court judgment. 21. The lawyer presented the panel of experts with the following questions: “1. In view of the [forensic] expert reports presented, were the injuries to [the victim’s] body and [through his] clothes inflicted with one or several objects (knives)? 2. How possible is it that G. Kuparadze inflicted the wounds as described in T.T.’s statement, by holding his shoulder with one hand while he was initially kneeling and then crawling on the ground face-down, in view of the mechanism used to inflict the wounds [described in the forensic and forensic medical reports]? 3. How possible is it that the ... wounds were inflicted by two different individuals and accordingly with two different knives, in accordance with the statement given by G. Kuparadze?” 22. Having provided a reconstruction of the incident by means of sketches and having analysed the case materials, the experts reached the following conclusions: “1. The wounds were inflicted on T.T.’s body and [through his] clothes not with one but with two sharp objects, possibly knives, of different sizes, 2 and 4 centimetres wide [respectively]. 2. G. Kuparadze could not have inflicted the wounds as described in T.T.’s statement, by holding his shoulder with one hand while he was initially kneeling and then crawling on the ground face-down, in view of the mechanism used to inflict the wounds [described in the forensic and forensic medical reports] and bearing in mind the limited access to the areas of impact. 3. ... it is possible ... that the ... wounds were inflicted by two different individuals (and accordingly with two different knives), as described in G. Kuparadze’s statement.” 23. On 7 December 2007 the Tbilisi Court of Appeal upheld the conviction. Concerning the applicant’s argument that the witness statement confirmed her version of the events, the court reasoned that although the witness had stated that she had seen two men climb in and out of the school playground, she had also said that that was a common sight at that school. Accordingly, the court found it impossible to establish that those persons had been implicated in T.T.’s stabbing. 24. The Court of Appeal dismissed the two alternative forensic reports commissioned by the defence. Regarding the first alternative forensic report, the court stated the following: “The court cannot accept the findings of the [first alternative forensic report] given that it is drafted in violation of a number of procedural norms. In particular, information as to which specific materials were presented [to the experts] and relied on when reaching the conclusions is missing; the research part of the forensic report contains a legal assessment of the [first-instance court] judgment and of a number of pieces of evidence, whereas under Article 96 of the Code of Criminal Procedure an expert examination is not to be carried out to determine legal matters. Furthermore, the concluding part of the expert examination [report] is presumptive, speculative and based on probability which, in the first place, is beyond the expert’s competence as provided for in Articles 365 [and] 374 of the Code of Criminal Procedure, [and] no evidentiary value may be attributed to speculative findings, in accordance with Article 371 (6) [of the Code].” 25. As regards the second alternative forensic report, the court noted the following: “The court cannot accept the findings of the [second alternative forensic report] as they are also speculative. Furthermore, the report relies on the conclusions of the medical and forensic expert examinations [medical documentation, the MI report and the second NFB report] which themselves do not categorically determine the nature of the object used to inflict the injuries on the victim, and even more so the number [of such injuries]. Without referring to a concrete scientific study, the [report] analyses and rejects the victim’s statement and relies on the statement of the accused.” 26. The appellate court also reasoned that the applicant’s argument that two unidentified men had beaten the victim while stabbing him was not confirmed in view of the absence of any physical signs of beating in the relevant forensic medical report. In the subsequent part of the judgment the Court of Appeal referred to the first and the second MI reports and the second NFB report, among other evidence, while upholding the judgment of the first-instance court. 27. On 12 September 2008 the Supreme Court of Georgia dismissed an appeal on points of law lodged by the applicant as inadmissible. Without responding to the applicant’s arguments that the lower courts’ dismissal of the alternative forensic reports had been erroneous and arbitrary, and that the main argument of the defence had been left without an appropriate answer, the court reproduced the relevant provision of the Criminal Procedure Code, holding that “the case [was] not important for the development of the law and coherent judicial practice, the [contested] decision [did] not differ from the Supreme Court’s existing practice in such matters, and the appellate court [had] not committed any major procedural flaws during its examination which could have significantly affected its outcome.” 28. On 16 November 2006 the applicant, aged fourteen at the time, was remanded in custody and placed in a cell together with adult female inmates in Tbilisi Prison no. 5 for Women and Juveniles (“prison no. 5”). According to the case file, the applicant did not complain about the material conditions of her detention in that cell. 29. On 10 January 2007 the Minister of Justice issued an order for the creation of a separate section for juvenile female offenders within prison no. 5, and instructed the relevant authority to separate the inmates accordingly. 30. On 24 January 2007 the applicant was moved to the newly created juvenile section of prison no. 5. She was alone in a cell for five months and subsequently shared the cell with two other juveniles. The applicant complained about the material conditions of detention in that cell during the proceedings concerning the deferral of her sentence (see paragraphs 3234 below). 31. On 21 February 2009 the Public Defender of Georgia visited the applicant in prison. In letters dated 6 March and 24 April 2009 addressed to the Minister of Corrections and Legal Assistance, the Public Defender expressed his concerns about the conditions of the applicant’s detention in prison no. 5. According to him, the cell in which the applicant was detained with two other juveniles measured approximately 12-15 square metres, the water tap was out of order, causing humidity in the cell, and the ventilation did not function properly, which led to an unpleasant odour. According to a press release issued by the Public Defender’s Office on 20 March 2009, the tap in the applicant’s cell was fixed shortly afterwards. 32. On 11 March 2009 the applicant instituted proceedings requesting the deferral of her sentence pending the construction of a separate detention facility for juvenile female offenders. She argued that, in the absence of a separate facility, her detention in the adult prison, even if in a separate section for juveniles, as such amounted to a breach of Article 3 of the Convention. She further complained that the cell where she was serving her sentence was too small, the water tap was out of order causing humidity, the ventilation did not function properly, and that she was deprived of the opportunity to have daily walks, contrary to Article 3 of the Convention. 33. On 16 June 2009 the Tbilisi City Court rejected the deferral request as manifestly ill-founded. It reasoned that domestic legislation did not provide for deferral of a sentence pending the construction of a separate detention facility for juveniles and that the complaints concerning the alleged violation of the applicant’s rights under Article 3 of the Convention had not been substantiated. The applicant appealed. 34. On 23 September 2009 the Tbilisi Court of Appeal rejected the appeal as manifestly ill-founded in a final decision. It reasoned that such a deferral was not guaranteed by the domestic legislation. As regards the applicant’s allegation that her rights under Article 3 of the Convention had been violated, the court found the complaint unsubstantiated and contrary to the material available before it. It based its finding on the applicant’s own admission before the court that she had been afforded the possibility of unlimited daily walks but sometimes chose not to use her exercise time, as she preferred not to share the space with other inmates, that she was free to take showers even if taking turns with other juvenile inmates, and that she was able to see the psychologist present in the prison without any problems. 35. According to the applicant, she completed her secondary education while in detention, and was admitted to a university after passing the requisite admission exam. 36. On 11 November 2011 the applicant was released on probation. | 0 |
test | 001-173372 | ENG | RUS | COMMITTEE | 2,017 | CASE OF DAYANOV AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Branko Lubarda;Dmitry Dedov;Luis López Guerra | 3. The relevant details of the application are set out in the appended table. 4. Mr L. Dayanov, Ms E. Dayanova, Mr R. Abkadyrov and Mr T. Ulyamayev complained about the excessive length of their pre-trial detention. Mr R. Dayanov complained about his unlawful detention on 7 May 2008. On 4 December 2015 Ms E. Dayanova revoked her application. | 1 |
test | 001-174621 | ENG | SVK | COMMITTEE | 2,017 | CASE OF CIRNEROVÁ AND OTHERS v. SLOVAKIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Alena Poláčková;Helen Keller;Pere Pastor Vilanova | 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. On 27 November 1987 a claim was lodged with Košice-okolie District Court against some of the applicants or their predecessors. With this claim, the plaintiffs were seeking a judicial ruling declaring them to be the owners of an area of grassland. The other applicants entered the proceedings as defendants on different dates and on the basis of different legal entitlements as outlined in the annexed table. 10. Between 1988 and 2009 the first-instance court held a number of hearings, ordered expert opinions, dealt with other relevant evidence, and heard witnesses. It also took some time to determine the parties who were actually to be sued in the proceedings in view of multiple deaths among the original defendants and various transactions made in respect of the property in question. 11. On 27 April 2010 the Constitutional Court delivered a judgment, finding that the applicants’ (or their predecessors’) right to a hearing within a reasonable time had been violated by the District Court. It ordered the District Court to proceed without undue delay and to reimburse the complainants’ legal costs. It also awarded just satisfaction in respect of nonpecuniary damage in the amount of EUR 300 to the applicants listed under points 1 to 17 and EUR 500 to those listed under points 18 to 28 and to the deceased predecessor of the applicants listed under points 29 to 32 of the Appendix. The Constitutional Court noted inter alia that the District Court had failed to proceed with the matter between 1995 and 2009. It also observed some of the applicants’ lack of interest in those proceedings. That judgment became final on 19 July 2010. 12. On 22 November 2011 the District Court delivered a judgment on the merits of the case, which was not served on the parties to the proceedings until seven months after its delivery. 13. On 19 March 2013 the Constitutional Court rejected a fresh constitutional complaint that had been lodged by the applicants (except those listed under points 30 to 32). It found no further undue delays in the proceedings before the District Court after the constitutional judgment of 27 April 2010. It noted the delay of seven months which the District Court had taken to serve its judgment on the parties. However, it did not consider it unconstitutional. 14. On 15 May 2013 the District Court transferred the case file to Košice Regional Court following an appeal lodged by the applicants listed under points 9 and 18 and some other defendants in the proceedings. 15. On 12 March 2014 the Regional Court had to identify and deal with successors of some of the deceased parties to the proceedings. It partly upheld the District Court’s judgment and partly dismissed the claim concerning some of the contested property. It also rejected the remainder of the appeal. The judgment became final on 10 July 2014. 16. On 8 August 2014 the applicants listed under points 4 and 30 to 32, together with several other defendants in the proceedings, lodged an appeal on points of law. On 21 January 2015 the proceedings in respect of that appeal were discontinued without examination of its merits due to the appellants’ failure to pay the court fees. That decision became final on 13 February 2015. | 1 |
test | 001-172069 | ENG | SRB | COMMITTEE | 2,017 | CASE OF KOKA HYBRO KOMERC DOO BROYLER v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Dmitry Dedov;Luis López Guerra | 5. On 26 June 2006 the Leskovac Commercial Court ordered AD Perper-Agrar, a socially-owned company based in Bošnjace (hereinafter “the debtor”) to pay the applicant specified amounts on account of damages. That judgment became final on 14 July 2006. 6. On 31 October 2006, upon the applicant’s request to that effect, the Leskovac Commercial Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs. 7. On 27 May 2011 the Leskovac Commercial Court opened insolvency proceedings in respect of the debtor. 8. The applicant duly submitted his claim. 9. On 3 February 2012 the applicant’s claim was formally recognised. 10. The insolvency proceedings are still ongoing. 11. On 22 April 2003, the debtor had been privatised and changed its name to AD Perper-Agrar. 12. On 5 May 2005 the privatisation contract had been annulled and on 8 September 2006 the debtor’s name was changed to Agrar Fruit. 13. According to the Serbian Ministry of Economy, the debtor is still a company predominantly comprised of socially-owned capital (see http://www.priv.rs/Ministarstvo-privrede/90/AGRAR-FRUIT--u-stecaju.shtml/companyid=1238, accessed on 6 December 2016). 14. In their additional observations of 19 April 2016 the Government informed the Court that the applicant had transferred its judgment claims to a third person on 28 October 2015. 15. On 9 November 2016, as a response to the Government’s additional observations, the applicant submitted that the contract regarding the transfer of the claims in question had been terminated by 11 December 2015. | 1 |
test | 001-177935 | ENG | SVN | CHAMBER | 2,017 | CASE OF FRANČIŠKA ŠTEFANČIČ v. SLOVENIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque | 5. The applicant was born in 1933 and lives in Ajdovščina. She is the mother of Branko Štefančič, born in 1961. Mr Štefančič suffered from paranoid schizophrenia and depression and had been admitted to the Idrija Psychiatric Hospital on several occasions. In 2007 he lodged an extensive criminal complaint, alleging that he had suffered various injustices at the hands of his work colleagues, acquaintances, the police and other organisations. Upon examining the complaint, the Nova Gorica State Prosecutor’s Office decided not to pursue it. In June 2008 Mr Štefančič started to telephone the Prosecutor’s Office and go there in person on an almost daily basis. He made various delusional accusations regarding murders that had gone unpunished “since the age of Christ”. 6. On 19 June 2008 Mr Štefančič appeared at the Nova Gorica State Prosecutor’s Office, and was told by the receptionist that the office was closed that day. He replied that he would come back the next day, armed, and that nobody would be able to hide from him. Having been told about Mr Štefančič’s threats, the Head of the Nova Gorica State Prosecutor’s Office, B.O., telephoned the Idrija Psychiatric Hospital and told the staff what had happened. She was told that Mr Štefančič was mentally ill and had already been treated in the hospital several times. She was further advised to contact the Ajdovščina Community Health Centre and suggest that a referral be made for Mr Štefančič’s involuntary confinement. In addition, B.O. was warned by Mr Štefančič’s consulting psychiatrist that over the past few weeks his patient had threatened to kill several people, including his doctor, mother and sisters. In view of this, the psychiatrist had assessed that Mr Štefančič was dangerous and in need of treatment, and added that he should be taken seriously due to his physical strength. B.O. also called the Nova Gorica police and told them about Mr Štefančič’s visits to the Prosecutor’s Office. 7. At 5.30 p.m. a doctor from the health centre telephoned the Ajdovščina police station to request police assistance with Mr Štefančič’s involuntary confinement on the grounds that he could become aggressive. She later took the request for his police-assisted transport and the order for his confinement to the police station in person. 8. At 5.55 p.m. the duty officer submitted the request to the commander of the police station, who granted it immediately. 9. At 6 p.m. officer J.T. from the Ajdovščina police station set off to the applicant’s house and found her son, who was living there, at home. He informed officers at the Nova Gorica police communications centre, and they informed the health centre staff that they could proceed with the involuntary confinement. Police officer J.T. remained at the scene until health centre medical staff consisting of B.A., the doctor on duty, and S.M. and I.P., medical technicians, arrived. Also sent to the scene were D.K., a second officer from the Ajdovščina police station, police officer dog handler J.K., and two traffic officers of the Nova Gorica traffic police. 10. According to the police report of 31 July 2008 based on the statements made by the police officers and medical staff, upon their arrival at around 8 p.m. the police officers and medical technicians first talked to the applicant, who was sitting on a bench at the back of her house. They asked her whether her son was in the house and whether he was armed. She replied that her son was indeed in the house and was on the telephone. She further explained that she was not aware of him possessing any firearms. The medical team informed the applicant why they were there and then entered the house, while the police officers remained at the front door. 11. Dr B.A. informed Mr Štefančič that they were going to take him to a psychiatric hospital, but he refused to go with them. The medical team attempted to persuade him, but he became agitated and verbally aggressive. The police officers warned him that he would be taken to the hospital by force if he refused to go of his own free will. 12. The medical technicians attempted to take hold of Mr Štefančič’s arms, but he pushed them off and started to scream. Dr B.A. then instructed the police officers to handcuff him, but when J.T. and D.K. attempted to restrain him, he resisted forcefully and pushed them off. In response, the police officers used physical force in order to push him to the ground, and J.K. ordered a muzzled dog on a leash to jump at him. As Mr Štefančič did not seem to react to the dog jumping at his chest, J.K. took it back to the police car. J.T. and D.K. meanwhile continued to use physical force and managed to wrestle Mr Štefančič to the ground onto his back. 13. The two police officers were then joined by dog handler J.K., who used the “rear chokehold” technique on Mr Štefančič. Together they managed to put him into the recovery position and medical technician S.M. injected Haldol (an antipsychotic drug with tranquilising effects) into his buttocks. As Mr Štefančič continued to resist, they could not administer the full dose of medication to him. The police officers then turned him onto his stomach, and J.T. handcuffed his hands behind his back. Medical technician I.P. injected him with Akineton, medication used on psychiatric patients to reduce the tremors caused by antipsychotic drugs. 14. Mr Štefančič calmed down as soon as he received the second dose of medication. A few moments later, the police officers and medical technicians noticed that there was a brown palm-sized pool of liquid under his head. They alerted Dr B.A., who established that Mr Štefančič had vomited and assessed that it could have been attributed to exertion. However, when one of the medical technicians checked Mr Štefančič again, he detected an irregular heartbeat, and again called out to the doctor. The medical team began to resuscitate him at 8.10 p.m. The police officers attempted to unlock his handcuffs, but only managed to free one of his hands, before the key broke. 15. The applicant, who was waiting outside during the intervention, was heading to the front of the house when she heard loud noises and a dog barking. When she approached the front door, she saw Dr B.A. massaging her son’s chest. She asked the police officers what was going on, to which one of them replied that they were resuscitating her son. Another ambulance arrived at the scene at 8.42 p.m., and an electrocardiogram was performed on Mr Štefančič, but to no avail. At 8.45 p.m. Dr B.A. pronounced him dead. He attributed the death to a heart attack or stroke. 16. Immediately after Mr Štefančič’s death, the officers from the Ajdovščina police station notified the Nova Gorica police communications centre of the incident and secured the area. The duty State prosecutor and the duty investigating judge of the Nova Gorica District Court were also notified of the death. The investigating judge attended the scene and ordered a forensic examination of the body. The medical file and equipment used in his resuscitation were also seized. 17. On 20 June 2008 police officers D.K., J.T. and J.K. made records of the methods of restraint they had used on Mr Štefančič (physical force, handcuffs and the police dog), which were confirmed by their superior officers to have been lawful. 18. In the days after the incident, an officer of the Nova Gorica police took statements from the police officers and medical staff involved in the incident, as well as from the applicant. 19. The applicant stated that on the evening of 19 June 2008 several police cars and an ambulance drove to the house and an officer asked her whether her son was keeping firearms. She replied that he was not, as far as she was aware. The applicant remained outside during the intervention and could not remember exactly how the events unfolded. She heard screaming, but was afraid to go inside. Sometime later she looked into the hallway and saw her son lying on the floor, surrounded by Dr B.A. and the medical technicians. She asked them what was going on, and they replied that they were resuscitating her son. She noticed that he had vomited. 20. D.K. and J.T., police officers, stated that upon entering the house, Mr Štefančič, who appeared to be talking on the telephone, told the medical technicians that he would not go with them, and D.K. and J.T. then warned him that they would use force if necessary. Dr B.A. also tried to convince him to go with them without success and he then instructed the officers to handcuff him. D.K. and J.T. took him by the arms to lead him to the ambulance but he resisted strongly. Dog handler J.K. attempted to calm him down by ordering the police dog to jump at him but Mr Štefančič did not react to the dog’s attack. The officers struggled to wrestle him to the ground and eventually succeeded in pushing him to the ground on his back; they then turned him onto his stomach, but he continued to resist forcefully. Dog handler J.K. then used the so-called “rear chokehold” technique on him, and together they managed to turn him onto his side. One of the medical technicians then administered the first dose of medication to him, whereupon he was again turned onto his stomach and handcuffed with his hands behind his back. The second dose of medication was then administered to him and he calmed down. 21. After Mr Štefančič received the second dose of medication, D.K. noticed a brown palm-sized pool of liquid under his head. Somebody mentioned that it was vomit and D.K. then asked if that was right. Dr B.A. was on the telephone arranging for Mr Štefančič’s transport to the psychiatric hospital but upon hearing D.K.’s question checked Mr Štefančič and said that the vomiting was due to exertion. J.T. confirmed that Dr B.A. initially said that Mr Štefančič was okay and vomited from exertion but added that the doctor did not check Mr Štefančič’s pupils or pulse. Then one of the medical technicians looked at Mr Štefančič again and checked his pulse. He called out to the doctor, saying that something was not right as he was breathing irregularly. Officer J.T. then attempted to unlock the handcuffs, and managed to get the one on his right hand off before the key broke. The medical staff started to resuscitate him. The whole incident, from the beginning of the police intervention until the beginning of the resuscitation procedure, only lasted a few minutes, five at the most. 22. J.K., a police dog handler, confirmed that he had first joined the intervention by ordering the police dog, which was muzzled, to jump at Mr Štefančič, who, however, made no attempt to shake the dog off or to withdraw from the attack. Therefore J.K. took the dog back to his car and then returned to the house, where officers D.K. and J.T. were not able to turn Mr Štefančič onto his stomach. J.K. helped them by holding him in a rear chokehold and together they managed to turn him onto his stomach and handcuff him. As this was going on, one of the medical technicians injected medication into his buttocks. J.K. also confirmed his colleagues’ accounts as to how the resuscitation of Mr Štefančič proceeded after it was discovered that he had vomited. 23. I.P., a medical technician, stated that on his arrival, he first asked the applicant a few questions and then entered her house with his colleague S.M. According to both medical technicians, Mr Štefančič pretended to be speaking on the telephone. I.P. explained to him that he was being taken to the psychiatric hospital to see a psychiatrist. Mr Štefančič refused to go and Dr B.A. ordered him to be handcuffed. As regards the events that ensued concerning the use of force by the police officers, I.P.’s statement matched the statements of police officers D.K., J.T. and J.K. (see paragraphs 2022 above), while S.M. did not pay much attention to the police operation, as he was preparing a syringe of Haldol. 24. As soon as the police officers managed to wrestle Mr Štefančič to the ground and turn him onto his side, S.M. injected him with Haldol. S.M. added that because Mr Štefančič forcefully resisted, he could not administer the full dose of medication to him. He then left the house. While the police officers turned Mr Štefančič onto his stomach, I.P. administered the second injection into his buttocks and he calmed down. I.P. then noticed that he was not breathing or was struggling to breathe. As far as he could remember, he called out that Mr Štefančič was not breathing. Dr B.A. approached him and saw him take a breath, concluding that he was breathing. S.M., standing outside, stated that he had not seen when and how Mr Štefančič had started to vomit, but heard the exchange between his colleague and Dr B.A. The doctor then left the house and started to arrange Mr Štefančič’s transport to the hospital. I.P. checked Mr Štefančič again and exclaimed that he was not breathing. Together with the police officers they turned Mr Štefančič onto his back and I.P. noticed that he was cyanotic. He also noticed traces of vomit on Mr Štefančič’s face, so he first protected his airways. The police officers had by then removed the handcuffs from him. His colleague S.M., who confirmed that Mr Štefančič looked grey and had traces of vomit on his face, fetched the resuscitation kit from the ambulance. Together with Dr B.A. they had intubated him; however, even at the beginning of resuscitation, his pupils were dilated, which was also a bad sign. I.P. also stated that the whole incident, from the use of physical force on Mr Štefančič until the beginning of the resuscitation procedure, only lasted a few minutes, five at the most. I.P.’s account was confirmed in substance by traffic officer M.D., who together with his colleague A.K. guarded the back entrance to the applicant’s house and thus only heard part of the incident. 25. Medical technician S.M. expressed the view that the police officers might have used excessive force in dealing with Mr Štefančič. He added that though Mr Štefančič had refused to go to the psychiatric hospital, he had not been particularly aggressive, and above all, had not physically attacked anyone. 26. Dr B.A., a general practitioner, stated that Mr Štefančič’s psychiatrist expected that he might behave aggressively so he received instructions to give him an injection of two ampoules of Haldol and one ampoule of Akineton. Although in the beginning of the intervention Mr Štefančič appeared agitated, but not aggressive, he started to resist forcefully when the police officers attempted to handcuff him. 27. According to Dr B.A., after Mr Štefančič was handcuffed and calmed down, he came out of the applicant’s house and started to arrange his transport. One of the police officers then called out to him that something was not right, that Mr Štefančič had vomited and was having trouble breathing. He was immediately turned onto his back. Dr B.A. noticed that Mr Štefančič had turned blue in the face and that he was wheezing. The medical team then started the resuscitation procedure, massaging his heart and intubating him, as well as administering 1 mg of adrenaline and 3 mg of atropine to him. However, as they did not have an electrocardiogram monitor or a defibrillator, another ambulance was called. By the time the second ambulance arrived at 8.42 p.m., they could only establish that Mr Štefančič had died. 28. On 21 July 2008 a criminal investigations officer of the Nova Gorica police obtained an oral preliminary report from the forensic pathologist who had performed the autopsy of Mr Štefančič. According to him, the deceased had most likely died of asphyxiation from inhaling gastric contents (choking on his own vomit). With regard to the question of potential liability for Mr Štefančič’s death, he took the view that the asphyxiation occurred during the police intervention, and that the presence of a doctor could not have altered the course of events. He added that the doctor could only be accused of negligence if the death had occurred during the resuscitation, which in his opinion had not been the case. 29. On 31 July 2008 the head of the Nova Gorica police criminal investigations unit submitted a report of the incident to the Nova Gorica State Prosecutor’s Office. Based on a statement provided by the forensic pathologist who conducted the forensic examination, the report stated asphyxiation from inhaling gastric contents as the cause of Mr Štefančič’s death. As to the events leading to the death, the police report summarised the statements given by the intervention team and stated that Mr Štefančič had resisted the police officers who had tried to take him to the psychiatric hospital, whereupon physical force had been used on him. After Mr Štefančič had been restrained and had calmed down, the police officers and medical technicians had noticed that he had vomited. After Dr B.A. had initially assessed that this could be attributed to exertion, he had been found to have an irregular heartbeat and the medical team had tried to resuscitate him, but to no avail. As regards the question of potential liability for Mr Štefančič’s death, the police report followed the forensic pathologist’s opinion that he had died during the police intervention and that his death could not have been prevented by any medical assistance. The report concluded by saying that no facts had been established giving rise to a suspicion that a criminal offence had been committed in connection with the death of Mr Štefančič which warranted criminal prosecution. 30. On 10 September 2008 the completed forensic report was submitted to the investigating judge of the District Court, confirming asphyxiation from inhaling gastric contents as the immediate cause of Mr Štefančič’s death. In addition to the trauma consistent with the cause of death, the examination revealed a number of blunt injuries to various parts of his body. 31. These included contusions on the outer edge of the shoulder blade, the left of the back and the back of the right thigh, swelling on the right of the hairline and the squamous part of the temporal bone, contusions on the inside of the upper right arm and left forearm and on the front of the left thigh. Several haematomas were recorded around the left shoulder blade, on the outer edge of the right shoulder blade, on the right of the thorax and on the scalp, as well as a pulmonary oedema, an oblique fracture of the fifth rib, bruising around the lumbar spine, and brain swelling. 32. According to the report, these injuries had either been caused by Mr Štefančič’s body being struck by an object, by part of his body being pressed against something, by him falling, or by his body being pressed between two hard surfaces. As regards the injuries to the back of his body, hairline and front left thigh, the forensic pathologist concluded that they had most likely occurred by him falling or falling after being struck, and that the bruises were caused by the body being pulled to the ground. 33. The toxicology report revealed a low concentration of haloperidol (an antipsychotic drug with strong calming effects) in Mr Štefančič’s blood. The forensic report concluded that the substance had been consumed either as a prescription medicine or administered during the intervention in order to calm him down, but could not be linked to his death or identified as the cause of his vomiting. 34. No particularities or disease-related changes had been found in Mr Štefančič’s system which could have directly contributed to his death. 35. With regard to enquiries made by the investigating judge as to whether Mr Štefančič’s death could have been prevented by prompt and adequate medical assistance, the forensic report stated: “Disregarding the particular circumstances surrounding the incident, this question could be answered in the affirmative; however, one cannot neglect the exceptional circumstances in which the incident occurred. Prompt and adequate medical assistance could have saved the life of [Mr Štefančič], even in the event that no ambulance with resuscitation equipment was immediately available. It is likely that [Mr Štefančič] was thrown or pushed to the ground where, prior to being handcuffed, his body was pushed down by applying body weight or some other pressure. [Being struck or pushed in] the stomach most likely induced the vomiting. In so far as the medical staff or the officers assisting them in the involuntary confinement had noticed in due course that [Mr Štefančič] began to vomit, they could have prevented him from inhaling gastric contents either by lifting his body into a vertical position or by turning him onto his side and mechanically clearing his oral cavity by using their fingers or an aspirator (if an aspirator was at the disposal of the medical staff). However, it was not possible to apply any of these measures to an aggressive patient resisting hospitalisation; it is only possible to apply such measures after the patient has calmed down or lost consciousness as a result of disruption in the exchange of gases following the aspiration of gastric contents. Having regard to the agitation and aggressiveness of the patient, as well as the circumstances of the incident, such measures almost certainly could not have been applied. The deceased only lost consciousness when his breathing was disrupted by inhaling massive amounts of gastric contents. Only then was it possible to apply more aggressive medical intervention (mechanical clearing of the oral cavity, suction of gastric contents from the oral cavity and respiratory tract, removal of potentially larger foreign objects and insertion of a tube with a balloon to prevent continuing aspiration of gastric contents, ventilation of the patient), which could not be performed on a conscious person, in particular on an aggressive person, due to the unpleasant feelings such an intervention induces. In the present case, the aspiration of gastric contents was particularly massive and aggressive, which is indicated by the pieces of food found by the histological analysis to be present even in the alveoli, the final branching of the respiratory system. In the present case it was not possible, once the deceased lost consciousness, to apply those methods and to suck the gastric contents from the respiratory passages and alveoli; considering the quantity and force of the aspiration of gastric contents, medical assistance probably would not have saved the life of [Mr Štefančič].” 36. On 18 September 2008 the investigating judge of the Nova Gorica District Court sent the statements of the persons involved in the incident, a record of the examination of the scene, the order for a forensic examination of Mr Štefančič’s body and the forensic report to the State Prosecutor’s Office. 37. On 23 September 2008 the Head of the Nova Gorica State Prosecutor’s Office, B.O., informed the District Court that the conditions had not been met for the institution of criminal proceedings, and that the case file had been archived. 38. On 20 January 2009 the applicant, through her representative, lodged a criminal complaint against police officers J.T., D.K. and J.K., whereby she stated that her son had been strangled and had died as a result of an unnecessary and unprofessional police intervention. The applicant also stated that the forensic report was misleading and there were doubts as to its accuracy. In addition, an anonymous criminal complaint was lodged against E.G., the head of the Nova Gorica uniformed police unit. The complainant alleged that E.G. had abused his position by giving a statement at a press conference in which he had covered up the actual cause of Mr Štefančič’s death in order to prevent criminal prosecution of Dr B.A. 39. After having reviewed the Nova Gorica State Prosecutor’s Office’s case file, on 2 June 2009 a State prosecutor from the Group of State Prosecutors for Special Matters (Skupina državnih tožilcev za posebne zadeve – hereinafter “the Special Matters Group”), which had exclusive jurisdiction over the prosecution of criminal offences committed by police officers, rejected both criminal complaints on the basis of the police and forensic reports and the media reports from the press conference on Mr Štefančič’s death. 40. The decision to reject the criminal complaints summarised the information included in the police and forensic reports, as well as the statements given to the police by Dr B.A. and medical technicians S.M. and I.P. 41. The State prosecutor, relying on the forensic report, concluded that Mr Štefančič’s death could have been prevented if someone had been noticed in time that he had started to vomit. However, in the case in question Mr Štefančič had been aggressive and resisted hospitalisation, and no assistance could be provided until he had calmed down. Therefore, in the State prosecutor’s opinion there was no is reasonable suspicion that the actions of J.T., D.K. and J.K., the three police officers who had restrained Mr Štefančič, constituted a criminal offence. Moreover, as regards the anonymous criminal complaint, the State prosecutor established that, according to the reports in the media, the head of the Nova Gorica uniformed police unit had stated neither that Mr Štefančič had died as a result of being administered sedatives, nor that the medical team had immediately begun resuscitation after his condition had deteriorated. Therefore, no reasonable suspicion existed that E.G. had committed a criminal offence liable to prosecution ex officio. 42. No appeal was available to the applicant against the decision to reject her criminal complaint. However, she could take over the conduct of criminal proceedings as a “subsidiary prosecutor”. | 1 |
test | 001-141947 | ENG | DEU | CHAMBER | 2,014 | CASE OF MÜLLER v. GERMANY | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1958. He is currently serving a life sentence in Schwalmstadt prison. 6. On 29 February 1984 the applicant was arrested after he had shot his wife, Ms I. M., who had recently left him, and injured two bystanders. On 17 December 1984 the Frankfurt am Main Regional Court convicted the applicant of murder and negligent bodily injury and sentenced him to life imprisonment. He has been imprisoned ever since. 7. On 3 December 1993 the Marburg Regional Court determined that the applicant’s guilt was not of “particular gravity” pursuant to Section 57 (a) of the German Criminal Code (see Relevant domestic law below), implying that the degree of the applicant’s guilt did not require an execution of more than fifteen years of his sentence. 8. From November 1995 until March 1997 the applicant served his sentence in a semi-custodial regime (offener Vollzug). On 13 March 1997 this privilege was withdrawn after preliminary investigations were initiated against the applicant who was suspected of having, in January 1997, while on prison leave, caused bodily harm to a female acquaintance, Ms J., by using an electric truncheon. On 2 February 1999 the Frankfurt District Court acquitted him of these charges on factual grounds without giving any further written reasons. 9. On 23 February 1999 the Marburg Regional Court, sitting as an execution of sentence chamber (Strafvollstreckungskammer) rejected the applicant’s request to suspend the remainder of his sentence and to release him on probation. The chamber considered that the criminal proceedings before the Frankfurt District Court had failed sufficiently to clarify the facts of the incident of January 1997. Having heard evidence by witnesses, the chamber noted that the applicant had started a sexual relationship with Ms J., who was married, in autumn 1995. When Ms J. decided to terminate the relationship in November 1995, the applicant had threatened to tell her husband and children about her extramarital relationship. Based on testimony given by several witnesses, the chamber was further convinced that the applicant had attacked Ms J. in the evening of 10 January 1997. The chamber considered that the applicant’s submissions that he had not been in Frankfurt at the time of the alleged incident lacked credibility. 10. With regard to the prognostic decision, the decision reads as follows: “The Chamber is convinced that a serious danger still emanates from [the applicant] for other persons’ lives and limbs. The established facts disclose remarkable similarities to the crime against I. M. The convict knew both women from his youth... Irrespective of the qualification of the incident under criminal law – which is irrelevant for the prognostic decision at hand – both incidents were preceded by a long period of time during which the perpetrator and the victim were deeply involved on an emotional level. The convict made elaborate plans for the future with both women, which ended in disappointment, and both women decided to leave him for another man...The convict was unable to take a clear stance in respect of the separation from both women. He oscillated between aggressive acts and menacing behaviour on the one side and pleadings on the other. In both cases, his behaviour followed the same pattern: it started with rather low-key aggression, which escalated during the course of the crisis which was marked by serious feelings of mortification....Now and then he threatened the women with violence and displayed suicidal tendencies... Ms J. might not yet have been in serious danger, as the convict had still been able to set himself limits. However, the Chamber has very serious doubts whether he will remain able to respect these limits in the future.” The Chamber further observed that the psychological expert Prof F., in an expert report prepared on 7 September 1994, had given the applicant a favourable legal prognosis. However, these findings had become obsolete in view of the freshly established events. The Chamber finally considered that the fact that the applicant had been acquitted in the criminal proceedings before the Frankfurt District Court did not prevent the execution of sentence chamber from making its own assessment of the relevant facts, as the Frankfurt District Court had failed sufficiently to examine those facts in a convincing way. 11. On 28 June 1999, the Frankfurt Court of Appeal rejected the applicant’s appeal. That court considered that the principle of presumption of innocence did not prevent the execution of sentence chamber from examining on its own motion those facts that were relevant for its prognostic decision. 12. On 11 October 2001, the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. On 16 October 2001, the applicant lodged an application with the Court (no. 5598/02) in which he complained about his continued detention. On 6 April 2004, a Committee of three judges declared this application inadmissible. 13. Between February 2001 and November 2006, the applicant lodged four further requests for the stay of execution of the remainder of the sentence, which were likewise rejected by the domestic courts. 14. Since 2002, the applicant has again enjoyed relaxed conditions of detention (Vollzugslockerungen), like accompanied outings and therapy. Further relaxed conditions of detention were not granted because on 13 January 2004 the Hessian Ministry of Justice objected to the prison authority’s proposal in this regard. 15. By decision of 4 September 2007, the Kassel Regional Court, sitting as an execution of sentence chamber, and after having heard the applicant, rejected his request for a suspension of his sentence on probation. The court found that there was no real chance that the applicant would not reoffend if released. This finding was based on the psychiatric expert report submitted by Prof K. on 20 April 2007, which had found that the applicant continued to be dangerous. The Regional Court further found as follows: “On the other hand, it has to be taken into account that the expert detected risk factors in the convict’s personality which make it difficult to come to an unconditionally positive social and legal prognosis... [The expert found] that these risk factors derived on the one hand from the fact that the convict had failed to deal with his offence, had not admitted any guilt and had not shown sympathy for his victims. In the expert’s view, he displayed a massive infantile egocentricity which was reflected in distinctive cantankerousness. While it was true that this would not necessarily lead to the commission of further criminal offences, the criminal offence that the applicant had committed to the detriment of Ms J. showed that the applicant was willing to enter into relationships with women once more and that a separation would lead to violent acts for reasons of wounded pride. His problem was that he was incapable of dealing either with his own weaknesses or with his catastrophic actions and that he could not take a mature, adult stance towards them”. (“Anderenfalls war hierbei jedoch zu berücksichtigen, dass auch nach den Ausführungen des Gutachters in der Person des Verurteilten Risikofaktoren festgestellt wurden, die eine uneingeschränkt positive Sozial- und Legalprognose...erschweren. Diese Risikofaktoren ergeben sich zum einen daraus, dass der Verurteilte sich nach der Tat nicht mit seinem eigenen Tun auseinandergesetzt hat und weder seine eigene Schuld eingeräumt noch Mitleid mit den Opfern gezeigt hat. Bei ihm besteht nach Auffassung des Sachverständigen eine massive infantile Egozentrik, die sich in einer ausgeprägten Rechthaberei widerspiegelt. Zwar führe dies nicht notwendig zur Begehung weiterer Straftaten. Doch zeige die Straftat zum Nachteil der Frau J., dass der Verurteilte geneigt und imstande sei, wieder Beziehungen zu Frauen einzugehen und dass es bei Trennungen zu Gewalttaten aus gekränkter Eitelkeit komme. Seine Problematik bestehe darin, dass er auβerstande sei, sich mit seinen eigenen Schwächen, aber auch mit seinen eigenen katastrophalen Handlungen auseinanderzusetzen und diesen gegenüber einen reifen, erwachsenen Standpunkt zu gewinnen.“) 16. The Regional Court further considered that there was no need to obtain further expert reports. It observed, in this context, that it was part of the expert’s task to assess a factual situation from a medical point of view in order to deliver the requested prognostic assessment. The court observed that the risk associated with a suspension of the sentence on probation could only be taken once it was clear that the applicant would adhere to the norms and once his conduct had been tested for some time in the framework of relaxed conditions of detention, in particular in a semi-custodial regime. In this context, the court also welcomed that the applicant was now cooperating and it was thus envisioned to start individual therapy in September 2007. 17. On 13 September 2007, the applicant appealed against the Regional Court’s decision. He submitted, inter alia, that he had not received the Public Prosecutor’s observations the Regional Court had referred to in its decision and that his rights under Article 6 § 2 of the Convention were violated because the Regional Court had based its decision on the alleged incident with J., even though he had been acquitted of all charges in this respect. He further maintained that the decision could not be based on the lack of relaxed conditions of detention; otherwise, the court had an obligation to ensure that appropriate measures were taken. 18. On 9 October 2007, the Frankfurt Court of Appeal dismissed the appeal. The Court of Appeal based its decision on the expert report, recalling the expert’s findings, inter alia, that the murder of his wife and the incident with Ms J., as referred to in previous decisions of the Regional Court and of the Court of Appeal, showed that with regard to women the applicant thought he could execute his own “law” at his discretion. He still did not accept his own weaknesses and did not have a plan on how to avoid or deal with critical situations in the future. Referring to its previous decisions of 1999, 2001 and 2005, the Court of Appeal concluded that the circumstances had not changed to a decisive degree. The murder of his wife was not triggered by the environment, but by the applicant’s personality. Since the criminogenic structure of his personality remained unchanged, the fact that the applicant’s conduct was non-objectionable was only of minor prognostic relevance. 19. The Court of Appeal observed that it had been legitimate for the execution of sentence chamber to investigate on its own motion the incident with Ms J., since this was relevant for the prognosis. Therefore, the expert was allowed to base his prognostic assessment on the execution of sentence chamber’s findings in this respect. According to the Court of Appeal, which referred to its prior decisions, this did not constitute a violation of the presumption of innocence. Having regard to the persistent danger that the applicant committed further violent acts in situations which could be compared to the original offence, the Court of Appeal considered that it was not justifiable to take the risk of suspending the further execution of the life sentence. 20. On 19 October 2007, the applicant submitted a constitutional complaint. He raised in particular the issue of presumption of innocence and further alleged that his right to be heard had been violated since he had not received the prosecution’s observations. 21. On 6 February 2008, the Federal Constitutional Court declared the complaint inadmissible for non-exhaustion of prior remedies on the grounds that the applicant had failed to lodge a motion to be heard (Anhörungsrüge). 22. On 19 March 2008, the Kassel Regional Court dismissed the applicant’s motion to be heard on the grounds that the applicant and his counsel had been informed about the content of the public prosecutor’s statement and of the prison authority’s submissions during a hearing. Furthermore, the prison authority’s submissions had been served on the applicant’s counsel for comments on 12 July 2007. On 5 June 2008, the Frankfurt Court of Appeal, relying on the same grounds, rejected the applicant’s appeal. 23. On 18 July 2008, the Federal Constitutional Court refused to admit the applicant’s fresh complaint lodged on 12 May 2008 against the decisions given by the Frankfurt Court of Appeal on 9 October 2007 and by the Kassel Regional Court on 4 September 2007 for adjudication without giving any further reasons. This decision was served on the applicant on 29 July 2008. 24. On 21 January 2013 the Marburg District Court refused to order the applicant’s probationary release and, at the same time, instigated fresh proceedings on the review of the applicant’s continued detention. On 28 May 2013 the Frankfurt Court of Appeal confirmed. 25. Until July 2013, the applicant underwent therapy. He was granted prison leave to attend therapy lessons. As from March 2013 the applicant was additionally granted one or two prison leaves per week. Since 23 October 2013 the applicant is serving his sentence in a semi-custodial regime. | 0 |
test | 001-161534 | ENG | RUS | CHAMBER | 2,016 | CASE OF BUTRIN v. RUSSIA | 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 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 6. The applicant was born in 1949 in the Khabarovsk Region. He is serving his prison sentence in a correctional colony in the village of Kochubeyevskoe, Stavropol Region. 7. On 9 March 2006 the applicant was arrested on suspicion of aggravated murder, robbery and firearms possession. He remained in detention throughout the investigation and trial. 8. On 28 July 2006 the Stavropol Regional Court found him guilty as charged and sentenced him to nineteen years’ imprisonment in a correctional colony. 9. On 10 February 2010 the applicant was sent to serve his sentence in correctional colony no. IK-17/1 in the village of Kochubeyevskoe, Stavropol Region (“the correctional colony”). 10. When the applicant arrived at the colony the resident doctor noted that he had a first-degree disability: he was totally blind as a result of mature cataracts in both eyes. His blindness, which had developed during his detention, meant that he was unable to move around alone. In addition, he was suffering from coronary disease, hypertension, gallstones and chronic pancreatitis. He was included on a list of detainees requiring enhanced medical attention. 11. The applicant was assigned to colony unit no. 10 for special-needs detainees, which comprised a separate dormitory. It housed forty-six detainees with various disabilities or serious illnesses. The unit had a dormitory measuring 149.6 square metres, a dining room, a toilet, showers, and several offices for administrative and medical personnel. A large part of the dormitory floor area was taken up by furniture such as bunk beds, bedside tables and chairs. According to a certificate issued by the correctional colony on 13 October 2014, each detainee was afforded 2.82 square metres of living space. As is apparent from the documents and photographs submitted by the Government, the premises were not adapted for visually impaired or blind persons. 12. The authorities assigned another inmate with cardiac problems to assist the applicant with his basic needs. The inmate did not receive any remuneration for the assistance he provided to the applicant. He helped the applicant to move around the dormitory and to take showers, and guided him in the dining room. The applicant had no prison work; he remained in the unit throughout the day. 13. According to the applicant, he faced particular difficulties in orientating himself in the correctional colony. He regularly stumbled over objects, slipped and fell. Such helplessness induced anguish and despair. In 2011 he was diagnosed as having an emotionally unstable personality disorder. 14. On 21 February 2011 and 19 November 2012 a medical commission confirmed the applicant’s disability. They recommended that the authorities provide him with a walking stick, a white cane, a player for audiobooks designed for blind people, a vocal clinical thermometer and a vocal tonometer. The recommendations were never enforced. According to two entries in his medical record, on 30 November 2011 and 23 January 2013 officials asked the applicant whether he wished to receive those items. The applicant allegedly refused, but did not agree to make a written note to that effect in the medical record. 15. In September 2014 the inmate who had been assisting the applicant was released from detention and the applicant was left to fend for himself. According to a certificate issued by the authorities, he refused the assistance of other inmates. 16. On 8 February 2013 the applicant asked for a medical examination to determine whether his state of health warranted his early release. 17. On 5 April 2013 a medical commission held that as blindness was one of the diseases listed in Government Decree no. 54 of 6 February 2004 that may warrant release from a correctional institution, the applicant could be relieved from serving his sentence. 18. Relying on the conclusion of the medical commission, the applicant lodged an application with the Kochubeevskoe District Court, Stavropol Region, for release on health grounds. On 16 April 2013 the District Court dismissed the application. Referring to Ruling no. 21 of the Supreme Court of Russia dated 20 December 2011 (see paragraph 26 below), the court noted that the fact that the applicant’s illness was included in the list provided for by Government Decree no. 54 did not automatically mean that he would be released. The court cited the gravity of the crimes committed by the applicant and the length of the prison term he had yet to serve. Taking those two factors into account, the court concluded that the applicant should remain in the correctional colony. The Stavropol Regional Court upheld that judgment on appeal. 19. On 10 July 2014 the Supreme Court of Russia rejected a cassation appeal lodged by the applicant without examining it on the merits. It found that the applicant had failed to lodge the appeal within the statutory timelimit. | 1 |
test | 001-166740 | ENG | MDA | CHAMBER | 2,016 | CASE OF NICHIFOR v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1966 and lives in Chișinău. 6. The applicant was a shareholder in a limited liability company created in 2002 with a registered capital of 5,400 Moldovan lei (MDL) (the equivalent of some 396 euros (EUR)). At the time of the events he owned 50% of the company’s shares. The other half of the shares was owned by A.N. 7. On 13 January 2009 A.N. lodged an action with the Chişinău Economic Court seeking the applicant’s exclusion from the list of shareholders on the grounds, inter alia, that he had not paid for his part of the shares, that is to say he had only paid MDL 1,080 instead of MDL 2,700. The applicant objected, claiming that the action was time-barred: under the relevant law, it had to be introduced within three years of the creation of the company. The applicant also presented bank documents which showed that A.N. had not paid his part of the shares until September 2009. 8. On 14 March 2009 the Chişinău Economic Court dismissed the action against the applicant on the grounds that it was time-barred. A.N. appealed. 9. The hearings before the Economic Court of Appeal took place on five different dates: 30 April, 27 May, 2 June, 4 June and 9 June 2009. On 2 June 2009 A.N.’s representative submitted that the applicant had not paid his contribution and that he had been asked to do so every year since the creation of the company in 2002. When asked whether there were any minutes to confirm the contention that the applicant had been summoned to pay his contribution, he answered that he was not aware of any such minutes. 10. On 4 June 2009 A.N.’s representative presented for the first time minutes of a meeting of the company’s shareholders, which had allegedly taken place on 20 February 2007. The minutes showed that the applicant had admitted to not having paid for the totality of his shares and had pledged to pay within one month or lose his status as a shareholder in the company. 11. The applicant objected that the minutes in question had been forged. He argued, inter alia, that his first name had been spelt wrongly and that the signature was not his. He requested that an expert authentication of his signature be carried out. His request was not mentioned in the transcript of the hearing. 12. On 9 June 2009 the parties made their closing statements at the hearing before the Economic Court of Appeal. The applicant reiterated that the minutes of a shareholders’ meeting dated 20 February 2007 had been forged and requested that an expert authentication be carried out. A document containing his submissions was attached to the file. 13. On the same date the Economic Court of Appeal adopted a judgment in the case by which it upheld the appeal, reversed the judgment of the first-instance court and found in favour of A.N. In ruling on the case, the Court of Appeal relied entirely on the minutes of the shareholders’ meeting dated 20 February 2007. 14. Several days after the pronouncement of the judgment, the applicant had access to the case file and noted that the transcript of the hearing of 4 June 2009 did not contain a record of his request for an expert authentication of his signature. He made an official request to have the transcript corrected. However, on 17 June 2009 the Economic Court of Appeal rejected his request. 15. The applicant lodged an appeal on points of law with the Supreme Court of Justice claiming, inter alia, that the proceedings had been unfair because the Economic Court of Appeal had used as the main and sole piece of evidence in the ruling against him a forged document, namely the minutes of a shareholders’ meeting dated 20 February 2007. The Economic Court of Appeal had given decisive weight to that document in spite of his express statement that the signature on the document was not his. He had requested to have the document authenticated by an expert, but the court had rejected his request without giving any reasons. He stressed that A.N. had not relied on the minutes of 20 February 2007 either in his initial action or in his appeal against the judgment 14 March 2009. He had presented them for the first time during the fourth hearing before the Economic Court of Appeal. In support of his assertion that the minutes in question had been forged, the applicant submitted evidence that between 11 and 22 February 2007 he had been undergoing medical treatment in Israel and could not therefore have attended a shareholders’ meeting held on 20 February 2007. He presented documents issued by the Moldovan border authorities and Israeli stamps in his passport confirming his travel to Israel between the above-mentioned dates. He also reiterated his objection concerning the statute of limitations and urged the Supreme Court to quash the judgment of the Economic Court of Appeal and order a re-examination of the case. 16. In the proceedings before the Supreme Court of Justice, A.N. presented for the first time a copy of minutes of a meeting of the company’s shareholders which had allegedly taken place on 23 February 2007. In the new minutes the applicant was recorded as acknowledging that in the previous minutes dated 20 February 2007, the date had been wrongly indicated and that the correct date should have been 23 February 2007. 17. On 17 December 2009 the Supreme Court of Justice dismissed the applicant’s appeal on points of law, upholding the judgment of the Economic Court of Appeal. It did not respond to the applicant’s argument that A.N.’s action was time-barred or to the contention that the Economic Court of Appeal’s judgment had been based on a forged document. Nor did the Supreme Court respond to the applicant’s argument that the Economic Court of Appeal had rejected without any reasons his request for an expert authentication of the minutes of 20 February 2007. Instead, relying on the minutes of 20 February 2007, the Supreme Court concluded that the applicant had not paid the totality of his shares in the company. The Supreme Court did not mention the new minutes dated 23 February 2007 presented by A.N. in the proceedings before it. 18. On an unspecified date the applicant lodged a criminal complaint against A.N., alleging that he had forged the company shareholders’ minutes dated 20 February 2007. In the course of the criminal proceedings, an expert from the National Forensic Centre presented his report dated 7 August 2010, in which he concluded that the signature on the minutes of the company shareholders’ meeting dated 20 February 2007 did not belong to the applicant. The criminal proceedings are pending. | 1 |
test | 001-154391 | ENG | ROU | CHAMBER | 2,015 | CASE OF MELNICHUK AND OTHERS v. ROMANIA | 3 | Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The first two applicants were born in 1939 and 1964 respectively. They are father and daughter. The last two applicants, who are husband and wife, were born in 1951 and 1946 respectively. All the four applicants live in Rivne, Ukraine. 6. Early on the morning of 24 December 1989, the first applicant and his wife, Ms Nadejda Stepanovna Melnichuk, who was the mother of the second applicant – at that time both citizens of the Union of Soviet Socialist Republics (“USSR”) – were driving through southern Romania, heading home after a trip to the Socialist Federal Republic of Yugoslavia, together with the third and fourth applicants. They were driving in a column of five cars which were transporting fifteen Soviet citizens in total. 7. At the same time, a Romanian army unit from Craiova had been notified by an unidentified person from the Border Police of Drobeta Turnu Severin that a column of foreign cars was driving from Drobeta Turnu Severin towards Craiova. At the time of the events, the former President Ceauşescu had just been toppled and there were allegedly persistent news reports that terrorists were trying to reinstate the regime. 8. Suspecting that the foreign cars belonged to the so-called terrorists, a team of soldiers was dispatched by Colonel C. – the commander of the army unit of Craiova, who later became general and commander-in-chief of the Romanian Army – to block the road in the nearby of the village of Brădeşti, on the viaduct named Valea rea. The unit was led by Lieutenant Colonel S. The road was blocked by two armoured vans, between which only a single car could pass. 9. The column of cars reached the blockade, followed by a local bus. The soldiers asked the passengers several times, in Romanian, to get out of the cars and surrender. As the tourists did not understand what was happening, they did not get out of the cars. During the domestic inquiry, the applicants and the other persons in the cars submitted that the shooting had started without any prior warning. The passengers in the cars started screaming in Russian that they were Soviet tourists. The applicants and the other persons travelling in the column tried to turn back the cars. After a brief pause, the soldiers started shooting again. The first applicant’s wife was shot in the head and the passenger sitting behind her – namely the third applicant – was wounded by bullets, as was the fourth applicant. 10. Those who were not wounded started to run away from the cars and tried to hide by the side of the road. At that moment a third round of shooting started. One of the five cars caught fire. Then the shooting stopped and the soldiers approached the cars. The first applicant tried to explain that they were tourists. 11. Several bullets also hit the local bus and wounded a passenger who was going to his workplace in Craiova. 12. After a while, the first applicant and his wife, together with the third and fourth applicants, were taken to a nearby hospital. The first applicant submits that he was called a terrorist by the Romanian soldiers, who pushed him around. 13. Ms Melnichuk was operated on the same day but fell into a coma. On 9 January 1990 she was transferred to a hospital in Bucharest, where she eventually died on 8 February 1990. The medical certificate issued in respect of her death stated that it had been caused by wounds inflicted by gunfire. 14. The second applicant travelled to Bucharest to bring back her mother’s body. 15. On 9 January 1990 the third applicant, who had been wounded in her spine, was transferred to a hospital in Moscow, due to her serious medical condition. She never recovered completely and is recognised as a disabled person. From a forensic report dated 6 February 1990, it appears that the third applicant needed 25-30 days of medical care. 16. The fourth applicant, who was shot in his left shoulder, was able to leave hospital and go back home to Rivne on 29 December 1989. From a forensic report dated 6 February 1990, it appears that the fourth applicant needed 8-10 days of medical care. 17. From the investigation carried out by the Romanian authorities it appears that on this occasion two persons died – the first two applicants’ close relative and B.M.K – and seven persons from the car column were wounded, namely the last two applicants, N.G.S., I.A.L., A.C., S.F.D. and S.K. 18. On 28 December 1989 the USSR citizens involved in the abovementioned events, including the third and fourth applicants, addressed a complaint to the consular authorities of the USSR Embassy in the Socialist Federal Republic of Yugoslavia. A complaint was also brought on behalf of the first applicant and his wife, who were still hospitalised in Romania and could not personally sign it. 19. The military prosecutor’s office in Craiova opened a criminal investigation with file no. 211/P/1990. 20. It appears from documents submitted by the respondent Government that during 1990 several investigative measures were instituted. Some of the victims, including the first applicant and some witnesses were questioned by the investigative authorities between 28 December 1989 and 12 February 1990. 21. The officer who gave the order to open fire wrote a report on the events which was included in the file. 22. On 20 February 1990, the USSR Embassy in Bucharest addressed an inquiry to the Romanian authorities concerning the progress of the investigations. 23. On 27 February 1990, Colonel C. – the commander of the military unit of Craiova, who had given the order for the army intervention at Brădeşti – was questioned as a witness with regard to these events. He stated that, following the phone call received from the Border Police of Drobeta Turnu Severin concerning the column of cars heading towards Craiova, he had supposed (“am bănuit”) that they were terrorists and had ordered them to be stopped before they reach Craiova. 24. Medical certificates were handed over to the investigation authorities in respect of the wounds inflicted on the tourists. A technical report was drawn up evaluating the damage to the cars involved in the incident. 25. Statements were taken from the military staff involved in the incident, namely the army unit which had dispatched the team of soldiers to Brădeşti. 26. Between 11 and 26 April 1990, with the assistance of the USSR Embassy, all the victims were interviewed in their country by a Soviet prosecutor and their statements were handed over to the Romanian authorities on 16 May 1990. 27. On this occasion, all the victims requested civil compensation for the damaged suffered in the incident. 28. On 22 August 1990, additional investigative measures were ordered by a military prosecutor, but it appears that none was taken. 29. By a decision of 14 August 1991, the prosecutor decided not to institute criminal proceedings on the grounds that the shooting had taken place as the result of fortuitous circumstances: the soldiers had been led to believe that the tourists were terrorists, so that when the tourists failed to respond to the order to get out of the cars and surrender, they had given the soldiers an impression of imminent danger. 30. The above-mentioned decision was automatically subject to review by the relevant Section of the military section of the prosecutor’s office at the Supreme Court of Justice (Secţia Parchetelor Militare, “SPM”). On 28 September 1992, the SPM requested additional investigative measures. 31. On 11 April 1994, the military prosecutor’s office in Craiova asked SPM for guidance in conducting the impugned investigations. 32. In a decision of 30 May 1994, the SPM quashed the 1991 decision not to institute criminal proceedings. In so ruling, the prosecutor found that there had been no justification for the order to open fire, taking into account that the tourists were not armed and had not presented any immediate danger. It was emphasised that the second round of shooting had taken place when the cars were stationary and the passengers were trying to hide in the immediate surroundings environment. He considered that the order to shoot had constituted a criminal act and that any fear that the soldiers might have experienced could not have amounted to a circumstance capable of removing criminal liability. It was therefore ordered to institute criminal proceedings against Lieutenant Colonel S. for aggravated murder. 33. The file was sent back to the military prosecutor’s office in Craiova on 22 June 1994. 34. On 29 June 1994, the military prosecutor’s office wrote to the commander of the army unit of Craiova asking him to ensure that Lieutenant Colonel S. would be present for questioning on 5 July 1994, and to hand over his last three appraisal reports. 35. Colonel S. failed to appear before the military prosecutor on 5 July 1994. The appraisal reports had been sent to the military prosecutor’s office. They showed that S. had been upgraded to colonel. 36. On 13 January 1997, the Military Prosecutor’s Office in Craiova found that it was not competent to decide the case and referred it to the military prosecutor’s office at the Military Court (Tribunalul Militar Teritorial). 37. On 31 March 1997, the military prosecutor’s office wrote again to the commander of the army unit of Craiova reminding him of his previous letter of 29 June 1994 and asking him to ensure that officer S. be present for questioning on 7 April 1997. 38. On 7 April 1997, Colonel S. was formally notified of the criminal charge brought against him and gave a statement before the military prosecutor. He stated that he had not initially ordered the shooting but that it had been a spontaneous reaction by another soldier. He also stated that he had joined in the first round of firing, that he had personally spent 14 cartridges and that he had subsequently ordered the second round of firing. 39. It appears also from the case file that in 1997 Colonel S. underwent a psychiatric evaluation. A medical report was delivered in this respect on 28 May 1997 stating that Colonel S. had a normal representation of the consequences of his acts. 40. After considering a complaint lodged by Colonel S., by a decision of 12 August 1998 the military section of the prosecutor’s office at the Supreme Court of Justice ordered the partial annulment of the decision of 13 January 1997. It was considered that the criminal investigation should not have been limited to Colonel S., as other persons might also have been involved. The prosecutor indicated that the criminal investigation needed to elucidate all the circumstances of the events and, on the basis of the results thus obtained, criminal proceedings should be initiated against all relevant persons. It was therefore ordered that the criminal investigation should be in rem. It was further indicated that the decision should be communicated to all interested parties. 41. The decision was communicated to Colonel S, but not to the victims. 42. Following the decision of 12 August 1998, it appears from the case file submitted by the responding Government that no investigative measures were taken between September 1998 and December 2004. 43. On 13 January 2005, the military prosecutor’s office at the Military Court ordered the discontinuation of the criminal investigation on the grounds that the criminal liability was timebarred. 44. On 2 September 2005, A.C. and K.C., two of the victims of the shooting of 24 December 1989, lodged a complaint against the decision of 13 January 2005 with the higher prosecutor. 45. By a decision of 4 April 2007, the military section of the prosecutor’s office at the High Court of Cassation and Justice quashed the decision of 13 January 2005, indicating that – given the fact that in 1994 criminal proceedings had been instituted against Colonel S. and several procedural acts had been taken in connection therewith – the running of the statutory time-limit had been interrupted and criminal liability was therefore not time-barred. It was also decided that the investigation file should be joined to the main criminal investigation file concerning the December 1989 events, namely case file no. 97/P/1990. Lastly, it decided that the criminal charges previously brought against Colonel S. should be resumed and that investigations continue in this respect. 46. According to the facts established by the Court in the case of the Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 34-41, 24 May 2011), several criminal investigations into the fatal crackdown on the demonstrations of December 1989, which had initially been conducted separately, were joined to the investigation that was the subject matter of case no. 97/P/1990. In this case, by a previous decision of 7 December 2004, the military prosecutor’s office had ordered the indictment of 102 persons, principally officers from the Army, police and Securitate forces – including some high-ranking ones – for murder (Articles 174-176 of the Criminal Code), genocide (Article 357 of the Criminal Code), inhuman treatment (Article 358 of the Criminal Code), attempts to commit those acts, complicity and instigation in the commission of the above acts and participation in them, acts committed “during the period from 21 to 30 December 1989”. Sixteen civilians, including a former President of Romania and a former Head of the Romanian Intelligence Service, had been also charged. 47. A letter of 22 May 2009 from the military prosecuting authorities indicates that 126 decisions to discontinue proceedings, issued in the separate investigations, were set aside and the relevant files joined to case no. 97/P/1990. After the initial decisions to discontinue proceedings had been set aside, investigations concerning several hundred victims who had been killed or injured during the period from 21 to 30 December 1989 in various areas of the country were also joined to case no. 97/P/1990. 48. In a previous letter of 5 June 2008, the head prosecutor of the military prosecutor’s office at the High Court of Cassation and Justice indicated that during the period from 2005 to 2007, 6,370 persons had been questioned in case no. 97/P/1990. In addition, 1,100 ballistics reports had been prepared, more than 10,000 investigative measures had been instituted and 1,000 onsite inquiries had been conducted. He also stated that “among the reasons for the delay [in the investigation], mention should be made of the repetitive measures... concerning the transfer of the case from one prosecutor to another..., the fact that the prosecutors did not promptly inform the injured parties about the decisions to discontinue proceedings... and the fact that the investigation had been reopened several years after the persons concerned had filed their complaints...; the lack of cooperation on the part of the institutions involved in the crackdown of December 1989..., the extreme complexity of the investigation... given that the necessary investigative measures had not been conducted immediately after the impugned homicides and ill-treatment...”. The above-cited letter mentioned another reason for the delay, namely decision no. 610/2007 of the Constitutional Court of 16 July 2007, which withdrew jurisdiction to conduct investigations in case no. 97/P/1990 from the military prosecuting authorities at the High Court of Cassation and Justice and transferred it to the civil prosecutors, that is, to the prosecutor’s office at the High Court of Cassation and Justice. In the opinion of the head of the military prosecutor’s office, as stated in the above-cited letter of 5 June 2008, the transfer of the case was sufficient to cause new delays in the proceedings, given the significant volume of the case file, the complexity of the case and the time that had elapsed since the events under investigation. 49. By a decision of 15 January 2008, the military prosecuting authorities at the High Court of Cassation and Justice decided to sever the investigation concerning the sixteen civilian defendants (including a former President of Romania and a former Head of the Romanian Intelligence Service) from the investigation involving military personnel, and to relinquish its jurisdiction in favour of the prosecutor’s office at the High Court of Cassation and Justice. 50. According to a press release issued on 10 February 2009 by the Public Information Office at the High Council of the Judiciary, the President of the Council intended to ask the Judicial Inspection Board to identify the reasons which had prevented the criminal investigation from being conducted rapidly. 51. In August 2008, the applicants petitioned the Ministry of Foreign Affairs of Ukraine and the General Prosecutor Office in order to get information about the investigation. Their petition remained unanswered. 52. Two subsequent decisions of 18 October 2010 and 15 April 2011 mentioned by the Government, but not submitted to the Court, were delivered by the Romanian authorities. These decisions were not communicated to the applicants. 53. According to the Government, on 18 October 2010 the military prosecutor in charge of the investigation decided to discontinue the proceedings in respect of the events that had taken place on 24 December 1989 in Brădeşti. On 15 April 2011, the aforementioned decision was also quashed and a new case was registered with the prosecutor’s office at the High Court of Cassation and Justice under no. 706/P/2011. 54 According to the information submitted by the Government, the investigations are still pending. | 1 |
test | 001-145360 | ENG | HRV | CHAMBER | 2,014 | CASE OF STATILEO v. CROATIA | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 7. The applicant was born in 1952 and lived in Split. 8. He was the owner of a flat in Split with a surface area of 66.76 square metres. 9. On 17 October 1955 a certain Ms P.A. was, on the basis of the Decree on Administration of Residential Buildings of 1953 (see paragraph 24 below), awarded the right to live in the flat and moved in together with her mother and her cousin I.T. (born in 1948) whom her parents had entrusted to P.A.’s care in 1951. This right was by the entry into force of the Housing Act of 1959 transformed into the specially protected tenancy (stanarsko pravo, see paragraphs 24-30 below about the specially protected tenancy in the former Yugoslavia). 10. P.A. and I.T. lived together in the applicant’s flat until P.A. moved out in 1973. I.T. continued to live there with her husband and her son, Ig.T. (born in 1972). I.T.’s husband died in 1998. 11. On 5 November 1996 the Lease of Flats Act entered into force. It abolished the legal concept of the specially protected tenancy and provided that the holders of such tenancies in respect of, inter alia, privately owned flats were to become “protected lessees” (zaštićeni najmoprimci, see paragraphs 31 and 40 below). Under the Act such lessees are subject to a number of protective measures, such as the duty of landlords to contract a lease of indefinite duration, payment of protected rent (zaštićena najamnina), the amount of which is set by the Government and significantly lower than the market rent; and better protection against termination of the lease. 12. The applicant refused to conclude a lease contract with I.T. stipulating the protected rent pursuant to section 31(1) of the Lease of Flats Act (see 40 below). On 16 May 1997 I.T. brought a civil action against him in the Split Municipal Court (Općinski sud u Splitu), relying on section 33(3) of the same Act (see paragraph 43 below), with a view to obtaining a judgment in lieu of such a contract. 13. Shortly afterwards in 1997 the applicant brought a civil action in the same court seeking to obtain a judgment ordering I.T. and her son to vacate the flat in question. He argued that she had not been “a child without parents” and thus could not have been considered a member of P.A.’s household within the meaning of section 9(4) of the 1974 Housing Act or section 12(1) of the 1985 Housing Act (see respectively paragraphs 28 and 29 below). Consequently, she could not have taken over the specially protected tenancy after P.A. had moved out of the flat in 1973, and thus had not had any title to use it. 14. The two proceedings were subsequently joined. 15. By a judgment of 2 September 2002 the Split Municipal Court found in favour of I.T. and her son in part. It ordered the applicant to conclude with I.T. a lease contract stipulating protected rent in the amount of 102.14 Croatian kunas (HRK) – approximately 14 euros (EUR) at the time – per month within fifteen days; otherwise the judgment would substitute such a contract. Since the existence of a specially protected tenancy was a necessary precondition for acquiring the status of a protected lessee under the Lease of Flats Act (see paragraph 11 above) the court had first to determine, as a preliminary issue, whether I.T. had become the holder of the specially protected tenancy after P.A. had moved out of the flat in 1973. The court held that, unlike the subsequent legislation relied on by the applicant, the legislation in force at the material time, namely the Housing Act of 1962, had not defined who could have been considered a member of the household of a holder of a specially protected tenancy (see paragraph 27 below). Thus, given that I.T. had been in foster care by P.A. and lived with her in the flat in question, she could have been considered as a member of her household and therefore could, after P.A. had moved out of the flat in 1973, taken over the specially protected tenancy from her and become the holder thereof. Consequently, when in November 1996 the Lease of Flats Act entered into force, I.T. had, as the holder of the specially protected tenancy, become a protected lessee by the operation of law and was entitled to conclude a lease contract stipulating protected rent with the applicant (see paragraphs 39-40 below). While the court ruled that I.T.’s son could be listed in the lease contract as a member of her household, it also held that her daughter-in-law and her grandson could not because they had not moved into the flat until after the entry into force of the Lease of Flats Act, when specially protected tenancies could no longer be obtained. 16. On 28 June 2006 the Požega County Court (Županijski sud u Požegi) dismissed an appeal by the applicant and upheld the first-instance judgment, which thereby became final. 17. The applicant then lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) alleging violations of his right to equality before the law, his right to a fair hearing and his right of ownership under the Constitution (see paragraph 23 below). 18. On 17 September 2009 the Constitutional Court dismissed the applicant’s constitutional complaint and served its decision on his representative on 2 November 2009. 19. According to the information submitted by the parties, the monthly protected rent for the applicant’s flat changed as follows, in line with the increase in the construction price index (see paragraphs 52 and 85 below): 20. It appears from the documents submitted by the Government that the applicant refused to receive the protected rent for the flat and that I.T. therefore had to deposit it with a court. 21. According to the parties the condominium fee paid into the common reserve fund (see paragraph 67 below) by the owner of the flat – the applicant and later his heir – for maintenance etc., was set at HRK 102.81 on 1 January 1998 and has not been changed since. 22. The Government also submitted information from the tax authorities according to which the applicant had never declared any income from renting out the flat. On the other hand, the applicant’s heir did so in his tax returns for 2011 and 2012 where he also asked for a tax deduction on account of costs corresponding to the amount of the condominium fee paid (see paragraphs 67-70 below). The Government did not specify what tax rate was applied. | 1 |
test | 001-162480 | ENG | ROU | ADMISSIBILITY | 2,016 | CHIRIAC v. ROMANIA | 4 | Inadmissible | András Sajó;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The applicant, Ms Luminiţa Chiriac, is a Romanian national, who was born in 1969 and lives in Iaşi. The applicant was allowed to represent herself in the proceedings before the Court. 2. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 12 April 2004, two individuals, one of whom was the applicant’s brother, were taken to an Iaşi Police station charged with disturbance of public order due to drunken behaviour. Following a call from her brother, the applicant went to the same police station in her capacity as a lawyer in order to represent the two aforementioned individuals. 5. On 23 April 2003 a local newspaper published an article entitled “Big row in the middle of the night between a lawyer and police officers from Station II” (Mare tărăboi în miez de noapte între un avocat şi poliţiştii de la Secţia II). The article related the events of 12 April 2004. It included the following quote from the deputy to the head of the police station: “... both the lawyer and her client were under the influence of alcohol and caused a furore in the police station”. 6. On 16 May 2003 the applicant lodged a criminal complaint of defamation against the journalist who had written the article and the police officer who had been quoted in it. She argued that as a result of the publication of the article, including the allegation that she had been under the influence of alcohol, her reputation had been damaged. Several clients had rescinded their representation agreements with her and her family had been negatively affected subsequent to the publication of the article. On 2 December 2003 the applicant joined the proceedings as a civil party claiming 25,000 euros in compensation. 7. On 20 April 2004 the Iaşi Court of Appeal sent the file to the prosecutor’s office attached to it, instructing the prosecuting authorities to examine the applicant’s complaint under Article 37 § 2 of the Legal Profession Act (Law No. 51/1995). 8. On 29 November 2004 the prosecutor attached to the Iaşi Court of Appeal dismissed the applicant’s complaint in respect of the police officer for lack of sufficient evidence that he had made defamatory statements and in respect of the journalist on the grounds that he had not acted with the intention to defame. The prosecutor based his decision on Article 10 (a) of the Criminal Code. The prosecutor noted that on the evening of 22 April 2004 the journalist had had a private conversation with police officer B.P. but that, according to a few witnesses who had been present, B.P. had refused to give any details about the incident of 12 April 2004 and had invited the journalist to seek the information from the officer tasked with providing information to the press. The prosecutor noted that the versions of the two defendants concerning the journalist’s source for his article of 23 April 2004 differed. While the journalist contended that police officer B.P. had given him information concerning the applicant’s alcoholic intoxication on the evening of 12 April 2004, officer B.P. denied it. 9. On 26 January 2005 the chief prosecutor upheld his decision. 10. The applicant lodged a complaint with the Iaşi Court of Appeal against the prosecutor’s decision not to open a criminal investigation. She contended that the circumstances of the incident of 12 April 2003 had not been accurately reflected by the prosecutor in his decision. She maintained that on the evening of the incident she had complained to the prosecutor in charge about the abusive behaviour of the police officers towards her and the two individuals who had been handcuffed and taken to the police station (one of whom was her brother) and that a criminal investigation had been opened in this connection. 11. On 12 May 2005 the Iaşi Court of Appeal dismissed the applicant’s complaint. The applicant lodged an appeal on points of law. 12. By a judgment of 12 January 2006 the High Court of Cassation and Justice allowed the applicant’s appeal on points of law and remitted the case for further investigation to the prosecutor’s office attached to the Court of Appeal. The court reasoned that the applicant’s complaint had been dealt with superficially and that the investigation should have addressed the crime of defamation of a lawyer, as provided for under Article 37 § 2 of the Legal Profession Act. 13. On 4 May 2006 the prosecutor’s office attached to the Iaşi Court of Appeal dismissed the applicant’s criminal complaint, basing its decision on Article 10 (a) of the Criminal Code. It concluded that police officer B.P. had not made any defamatory statements about the applicant and that the journalist had written the article on the basis of a report drawn up by the police on the evening of 12 April 2003 without the intent to defame the applicant. 14. On 5 June 2006 the chief prosecutor upheld that decision. 15. On 10 October 2006 the Iaşi Court of Appeal allowed an appeal lodged by the applicant against the prosecutor’s decisions. It quashed the prosecutor’s decision on the grounds that the applicant’s complaint should have been examined in the light of Article 37 § 2 of the Legal Profession Act and sent the case-file back to the prosecutor’s office for a fresh examination. 16. By a decision of 27 September 2007 the prosecutor’s office attached to the Iaşi Court of Appeal dismissed the applicant’s criminal complaint. 17. The applicant challenged the prosecutor’s decision before the courts. 18. An appeal on points of law lodged by the applicant was finally dismissed by the High Court of Cassation and Justice on 6 March 2008. The court upheld the reasoning of the lower courts that the offence did not fall under the provisions of the Legal Profession Act, as the acts complained of had not occurred during the exercise of the applicant’s duties. Furthermore, the High Court of Cassation and Justice held that although the acts complained of may have fallen under the provisions of the Criminal Code regarding defamation, those charged with such acts could no longer be prosecuted because from 2006 to 2007 defamation had been decriminalised. The defendants were therefore able to benefit from the application of the more favourable law. No reference was made to the civil action lodged by the applicant. 19. Article 206 of the Code of Criminal Procedure (CCP), as in force at the time of the events, read as follows: “Anyone who makes a statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium shall be liable to a fine ....” 20. Law No. 278/2006 amended certain provisions of the CCP and repealed the Articles on insult and defamation. 21. However, by its decision no. 62 of 18 January 2007 the Constitutional Court declared the repeal unconstitutional. 22. The relevant provisions of the CCP in force at the time of the relevant facts read as follows: “(1) Criminal proceedings cannot be instituted and, if instituted, cannot be continued if ... ... (b) the act is not proscribed by the criminal law;” “The aim of a civil action is to establish the civil liability of the accused and the liability for the payment of damages of any other person who may be held legally responsible. A civil action can be brought together with a criminal action in a criminal trial, by way of joining the proceedings.” “A person who has suffered civil damage may join the criminal proceedings ... He or she may do so either during the criminal investigation ... or before the court ...” “The findings contained in a final judgment of the criminal court concerning the issue whether the act in question was committed and the identification of the perpetrator and establishment of his guilt are binding on the civil court when it examines the civil consequences of the criminal act.” “(1) In the event of a conviction or an acquittal, or the termination of the criminal trial, the court shall deliver a judgment in which it also decides on the civil action. (2) Where acquittal has been pronounced for a reason provided for in Article 10 (b1) or because the court has identified an element that removes the criminal nature of the act, or because one of the constitutive elements of an unlawful act is missing, the court may award pecuniary and non-pecuniary damages in accordance with the civil law. (3) Civil damages cannot be awarded if the acquittal was decided because the offence does not exist or has not been committed by the defendant. (4) The criminal court shall not settle the civil action if it decides to acquit for reasons provided for in Article 10 (b) or if it decides to terminate the criminal proceedings for one of the reasons provided for in Article 10 (f) and (j) or in the event of withdrawal”. 23. The provisions of Articles 19 and 20 of the CCP are mentioned in Forum Maritime S.A. v. Romania (nos. 63610/00 and 38692/05, §§ 64 and 65, 4 October 2007). 24. Articles 999 and 1000 of the Civil Code, as in force at the relevant time, provided that any person who had suffered damage could seek redress by bringing a civil action against the person who had negligently caused it. 25. Article 37 § 2 of the Legal Profession Act, as in force at the time of the events, read as follows: “(2) Insulting, defaming or threatening a lawyer during the exercise of his or her profession and in connection with the profession shall be punished by a term of imprisonment from three months to two years or by a fine.” | 0 |
test | 001-163939 | ENG | NLD | ADMISSIBILITY | 2,016 | VAN VELZEN v. THE NETHERLANDS | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 1. The applicant, Mr Franciscus van Velzen, is a Netherlands national, who was born in 1966 and lives in Delft. He is represented before the Court by Mr J.M. Lintz, a lawyer practising in The Hague. 2. The relevant facts, as submitted by the applicant and apparent from information submitted by the Government at the request of the Judge Rapporteur (Rule 49 § 3 (a) of the Rules of Court), may be summarised as follows. 3. The applicant lives on a caravan site. He is not married. 4. On 3 March 2008 a post office official handed a summons addressed to the applicant to another inhabitant of the caravan site, one Ms D. The official record of delivery states that the summons was handed to “Ms D., wife (echtgenote)”. 5. Ms D. lives together with the applicant’s brother, on the same caravan site but in a different caravan. Her postal address, which applies to the site as a whole, is the same as the applicant’s. 6. On 23 April 2008 the limited jurisdiction judge (kantonrechter) of Delft (a local dependency of the Regional Court (rechtbank) of The Hague whose jurisdiction includes minor offences (overtredingen) and small claims) convicted the applicant in absentia of “being the person in whose name a motor vehicle is registered for which a vehicle registration certificate has been issued, failing to subscribe to and maintain in force insurance in accordance with the Motor Vehicles (Third Party Liability Insurance) Act” (als degene aan wie het kenteken is opgegeven voor een motorrijtuig waarvoor een kentekenbewijs is afgegeven niet een verzekering overeenkomstig de Wet aansprakelijkheidsverzekering motorrijtuigen sluiten en in stand houden). The applicant was ordered to pay a fine of 380 euros (EUR) or undergo seven days’ detention in lieu. 7. The applicant appealed against the judgment on 28 May 2009 by setting out his grounds of appeal on a pre-printed form. The form states the following: “I did not attend the hearing because: [in handwriting] I did not know that the case was to be heard. I would have liked to make the following submission: [in handwriting] I do not even know which case it is.” 8. On 16 October 2009 the president of the Court of Appeal (gerechtshof) of The Hague gave a decision refusing the applicant leave to appeal. The decision was in the following terms: “The President notes that the appellant did not appear at the first-instance hearing, although the summons was handed to a member of his household on 3 March 2008. The mere fact that the appellant has not made use of the opportunity offered for stating his defence does not justify a hearing on appeal. There is no appearance of any special circumstances that might justify offering him this possibility. The President further notes that the appellant essentially wants nothing more than a rehearing of the case. An examination of the case based on the case file has not led the President to expect that a rehearing will lead to any other ruling than that given at first instance. The President is not aware of any other reasons for which the interests of the proper administration of justice require the case to be heard in appeal.” 9. The judgment here in issue has not been executed; the Government have informed the Court that it will not be, pending the Court’s decision on the present application. 10. In its relevant part, Article 278 of the Code of Criminal Procedure provides as follows: “1. The Regional Court shall determine whether the summons was validly delivered to the suspect who has failed to appear. If it is apparent that it has not been validly delivered, it shall declare the summons null and void. ...” 11. In its relevant parts, Article 588 of the Code of Criminal Procedure provides as follows: “1. Delivery [sc. of a judicial notification] shall take place: a. to the person who has been lawfully deprived of his liberty in the Netherlands in connection with the criminal proceedings to which the judicial notification relates and to the person who has been otherwise lawfully deprived of his liberty in the Netherlands in other cases determined by or pursuant to delegated legislation: in person; b. to all others: in person or, if service otherwise than in person is allowed and the notification is presented in the Netherlands, i. at the address where the addressee (geadresseerde) is registered as resident in the Personal Records Database (basisadministratie persoonsgegevens), or as the case may be, ii. if the addressee is not registered as a resident in the Personal Records Database, at the permanent or temporary domicile (woon- of verblijfplaats) of the addressee, or as the case may be, iii. if the addressee is not registered as a resident, to the Registrar of the Regional Court before which or within whose jurisdiction the case will be heard or was last heard. 2. ... 3. If, in the situation referred to in paragraph 1, sub-paragraph b, under i or ii, a. the addressee is not found, delivery shall be to any person present at that address who declares that he is prepared to forward the document to the addressee without delay; b. no one is found, delivery shall be to the addressee or a person authorised by the addressee [to take delivery of it] at the place mentioned in a written message that shall be left at the address mentioned in the notification. Delivery to a person so authorised by the addressee shall count as service in person; c. no delivery has proved possible, the notification shall be returned to the authority that sent it. If it is found that the addressee was, on the day of attempted delivery and at least five days thereafter, registered in the Personal Records Database as resident at the address mentioned in the notification, the notification shall then be delivered to the Registrar of the Regional Court before which or within whose jurisdiction the case will be heard or was last heard. The Public Prosecution Service shall then send a copy of the notification to that address without delay, which act shall be noted in the official record of delivery ...” 12. In its relevant part, Article 410a of the Code of Criminal Procedure provides as follows: “1. If an appeal is possible and has been lodged against a judgment concerning only one or more minor offences or indictable offences (misdrijven) which, according to the statutory description, carry a sentence of imprisonment not exceeding four years, and no other sentence or measure has been imposed than a fine not exceeding – or, if two or more fines have been imposed in a single judgment, not exceeding a combined maximum – of EUR 500, the appeal lodged shall only be heard and considered if, in the considered opinion of the President, such is required in the interests of the proper administration of justice. ...” | 0 |
test | 001-175645 | ENG | SVK | CHAMBER | 2,017 | CASE OF KUC v. SLOVAKIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1979 and is currently detained in the Trenčín hospital for charged and convicted persons. 7. The applicant was arrested on 1 January 2012 and charges were brought against him the following day for the criminal offence of endangering public safety. The charge was based on the suspicion that he had made home-made explosive devices; that he had sent some of them, together with written threats, to veterinarians and the head office of a supermarket chain; and that he had planted one of the devices next to a fast food outlet and had allowed it to explode with a view to promoting animal rights. 8. On 4 January 2012 the Košice I District Court remanded the applicant in custody pending trial to prevent him from continuing his criminal activity. The District Court took into account, inter alia, the nature of the criminal charge and the fact that the applicant had been having long-term psychiatric treatment. An interlocutory appeal by the applicant was unsuccessful. 9. Courts at two levels of jurisdiction reviewed and confirmed the lawfulness of the applicant’s detention on five occasions as follows. 10. Between 28 March 2012 and 21 May 2012 courts at two levels dismissed applications by the applicant for release. They relied on a risk of reoffending and took into account new charges that had been brought against him as well as the testimony of various witnesses and victims. In that connection, they referred to evidence that the applicant had been planning his attacks for a long time and in a systematic way. On 3 May 2012 the domestic courts added new grounds for his detention, namely a risk that he might abscond. That was based on a statement by a witness who had allegedly said that the applicant had declared that he would try to flee if he was arrested. The evidence in the case, in particular the applicant’s computer, suggested that he had “entertained the idea of counterfeiting an ID”. 11. On 11 June 2012 the District Court prolonged the applicant’s detention by five months (until 1 January 2013) on the grounds that the investigation was not finished, that further charges had been brought against him since May 2012, and that the criminal charges had been reclassified as a crime of terrorism and the acquisition and possession of firearms. The domestic courts concluded that his criminal case was complex owing to the extent and nature of his criminal activity and repeated the grounds for his detention, namely the possibility of his reoffending and absconding. The court also ordered a report by an expert on extremism and terrorism. That decision was upheld on appeal. 12. At the pre-trial stage the applicant was committed to the hospital for charged and convicted persons in Trenčín on two occasions, namely between January and February 2012 and March and June 2012 because, inter alia, he had demonstrated signs of anxiety, made threats of suicide and needed to have his mental state examined. 13. On 1 October 2012 the applicant was indicted to stand trial on the above charges before the District Court. 14. Between 3 October and 27 December 2012 the applicant applied two more times for release to courts at two levels of jurisdiction. Given the serious accusations made against him in the meantime (on 1 October 2012) for crimes including terrorism, the courts upheld both grounds for his continued detention. In addition, they referred to a witness statement that the applicant had written a will where he had expressed the alleged intention to commit a terrorist suicide attack. Furthermore, the courts rejected bail and guarantees of supervision offered by the applicant’s parents since they had been unable to prevent the crimes while the applicant had lived in their house. 15. The District Court held seven hearings in the criminal case against the applicant. It examined oral and documentary evidence, including evidence from several experts. It delivered its judgment on 19 June 2013, finding the applicant guilty of the charges and sentencing him to twenty-five years in prison. However, on 30 October 2013 the Regional Court quashed the judgment following an appeal by the applicant and remitted the case to the District Court for re-examination. 16. The Regional Court observed that in the course of the appellate proceedings, on 24 October 2013, the applicant had submitted a report by two certified experts concluding that he had long been suffering from a mental schizotypal disorder preventing him from understanding the illegal nature of his behaviour and from controlling it (“the second expert report”). Those conclusions were contrary to those in a report by two other experts at the pre-trial stage of the proceedings (“the first expert report”), which had concluded that the applicant was not suffering from a mental illness but merely a personality disorder. Resolving that contradiction was imperative in order to establish whether or not the applicant was criminally responsible. The Regional Court therefore instructed the District Court to obtain a third opinion from an expert institute. In addition, it ordered the lower court to resolve an issue concerning the legal classification of the applicant’s impugned actions. 17. In the meantime, on 4 September 2013, while the criminal proceedings were pending on appeal, the Regional Court decided to keep the applicant in detention on the same grounds as before (see paragraph 14 above). 18. The subsequent course of the trial is described in paragraphs 27 et seq. below. 19. After the verdict was quashed on appeal and remitted to the District Court for re-examination, the applicant, assisted by his lawyer, applied for release on 23 December 2013. He referred to his mental disorder as established in the second expert report of 24 October 2013. He added that he had been seeing a psychiatrist since the age of 14 and needed medicine on a daily basis to prevent suicidal thoughts. He could not live without that medicine, even in detention, as he required treatment and sessions with a psychiatrist. He submitted that there was no risk of him absconding if at large as he had only had a basic education, had no financial means, no job, had never travelled alone outside his home town, and was completely dependent on his parents, emotionally, financially and for everyday care. Moreover, there was no risk he would continue his criminal activity if he was under medication and being properly treated, or, alternatively, if he was committed to a psychiatric institution, as he feared for the future after the charges had been brought against him. 20. The applicant’s parents supported his application for release and offered to stand as guarantors of his pledge that he would live in accordance with the law. They also supported his request that his detention be replaced by supervision by a parole officer. 21. On 10 January 2014 the District Court heard the applicant, his lawyer, and the Public Prosecution Service as regards his request for release. According to the transcript of the hearing, the applicant and his counsel reiterated and further developed their arguments made in the application and submitted that his mental condition meant that his absconding was not realistic. 22. The Government’s observations show that on the same date the District Court sent a letter to the director of the detention centre in Košice where the applicant was being held, asking for information about the applicant’s state of health. It enquired whether the applicant was being provided with the drugs he had been prescribed and whether the detention centre was able to provide the applicant with his treatment. The director of the detention centre replied on the same day in the affirmative. 23. On 13 January 2014 the District Court dismissed the applicant’s application to be released and his supplementary requests, a decision that was upheld by the Regional Court on 29 January 2014 after an interlocutory appeal by the applicant. 24. The courts concluded that there was still a strong suspicion against the applicant, which added to the reasons for keeping him detained. They observed that he had created explosives and contemplated where to plant them over a long time and in a systematic way. He had lived with his parents and a search of the home they shared had shown that they had clearly not been aware of his illegal activities and had been unable to prevent them. The applicant faced a particularly severe potential penalty, had declared openly that he would try and flee in case of arrest and a search of his computer had suggested that he had contemplated counterfeiting an ID. Regarding the nature, scope and seriousness of the alleged offences and the applicant’s character, the courts concluded that the conditions for a restriction of liberty still existed. In addition, they observed that the relevant authorities had proceeded with the case expeditiously and with due diligence. Moreover, the courts found that the requirements for alternative measures, such as a parental guarantee, a pledge by the applicant or replacing his detention with supervision had not been met. There was no separate consideration of the applicant’s mental condition as such. The correspondence between the district court and the director of the detention centre was not mentioned in the courts’ decisions. 25. The applicant subsequently turned to the Constitutional Court with a complaint under Article 127 of the Constitution, alleging a violation of his rights, inter alia, under Article 5 §§ 1 (c), 3 and 4 of the Convention, or their constitutional equivalents. As to the substance, he raised arguments that were similar to those in his application to be released. He added that the courts had failed to take into account the specific nature of his situation, consisting of his mental disorder; that the length of his detention had been excessive and based on irrelevant and insufficient reasons; and that the only matter open to debate was whether he was legally insane, which impacted on his criminal liability. 26. On 2 April 2014 the Constitutional Court dismissed the complaint as manifestly ill-founded. It endorsed the reasons given by the ordinary courts and concluded that they had been relevant and sufficient to keep the applicant detained. It gave no answer to his argument concerning the specific nature of his situation. 27. Following remittal of the case by the Regional Court, the District Court asked the expert institute on 9 December 2013 to produce a report on the applicant’s mental condition. On 20 March 2014 it also ordered that the applicant be admitted to the psychiatric department of the Trenčín hospital for charged and convicted persons in order to have his mental health examined. The report was filed on 1 July 2014, and the District Court heard the case between January and July 2014. 28. On 10 July 2014 the District Court again found the applicant guilty. The Regional Court dismissed an appeal by the applicant on 10 October 2014. He was sentenced to twenty-five years’ imprisonment, thirty-six months’ protective supervision and payment of damages. No ordinary appeal being available, the judgment became final and binding. 29. Nevertheless, the applicant appealed on points of law and the Supreme Court quashed the District and Regional Court judgments owing to breaches of the law to the applicant’s disadvantage. The matter was remitted to the District Court for fresh examination. The Supreme Court provided an extensive interpretation of the criminal offence of terrorism and concluded that the lower courts’ legal interpretation of the case had been wrong as the applicant’s motive had not included elements of the crime of terrorism. 30. Subsequently, the case returned to the District Court and the applicant remained detained pending trial as of 14 April 2016. 31. Taking into account the Supreme Court’s judgment and its legal interpretation of the crime in question, the District Court once again found the applicant guilty of, inter alia, the criminal offence of endangering public safety, the illegal acquisition, possession and trafficking of firearms, the making of serious threats, extortion, and attempted bodily harm and sentenced him to twenty-three years and six months in prison on 29 September 2016. It also ordered protective supervision lasting thirty-six months. The applicant appealed and those proceedings are still pending. 32. On 29 November 2016 the applicant was transferred from the Košice detention centre to the hospital in Trenčín after he reportedly collapsed. | 1 |
test | 001-142423 | ENG | DEU | CHAMBER | 2,014 | CASE OF SCHATSCHASCHWILI v. GERMANY | 3 | Remainder inadmissible;No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 7. The applicant was born in 1978. When lodging his application he was detained in Rosdorf prison, Lower Saxony (Niedersachsen). 8. By a judgment of 25 April 2008 (file no. 63 Js 1244/07) the Göttingen Regional Court convicted the applicant of two counts of aggravated robbery in conjunction with aggravated extortion by means of coercion, committed jointly with further perpetrators (gemeinschaftlicher schwerer Raub in Tateinheit mit schwerer räuberischer Erpressung), and imposed an accumulated prison sentence (Gesamtfreiheitsstrafe) of nine years and six months. 9. The crimes were committed in Kassel on 14 October 2006 and in Göttingen on 3 February 2007 respectively. 10. The Regional Court found it established that in the evening of 14 October 2006 the applicant, acting jointly with an unidentified accomplice and according to a previously agreed plan, entered by force into an apartment in Kassel and robbed its occupants. The men were aware that the apartment was used for prostitution and expected its two female occupants to keep valuables and cash in there. They had passed by the apartment in the early evening in order to make sure that no clients were present. Shortly afterwards they rang at the door of the apartment which was attended by its tenant Ms L. After having overpowered L. by force the applicant threatened her with a gas pistol that resembled a real gun ordering her to keep silent. He then went to the kitchen where he found the further occupant of the apartment Ms I., a Lithuanian national who lived and worked there as a prostitute. Pointing his gas pistol at I. he forced her to hand over her mobile phone. While his accomplice was watching over the two women, the applicant searched the apartment for valuables and found five further mobile phones as well as 100 euros (EUR) in I.’s purse. The applicant then threatened to shoot the women should they not disclose where they were keeping any additional money. As a result of his threat L. handed over a further EUR 1,000 which she had kept in the pocket of her jacket. The men then left the apartment with their loot. Later that evening an acquaintance of L. whom she had told about the incident called the police which came to the apartment. 11. As regards the events on 3 February 2007, the Regional Court established that the applicant, acting jointly with several accomplices, two of whom were the applicant’s co-accused in the proceedings before the court, robbed another apartment located in Göttingen. The men acted according to a plan previously set up among the gang. At the relevant time the apartment was occupied by Ms O. and Ms P., two Latvian nationals who were illegally staying in Germany and working in the apartment as prostitutes. O. and P. were friends of L., one of the victims of the crime committed in Kassel on 14 October 2006, and they had both worked for some time as prostitutes in the Kassel apartment rented by L. before moving to Göttingen. 12. In the evening of 2 February 2007, the day before the crime, one of the applicant’s co-accused together with accomplice R. passed by O. and P.’s apartment in Göttingen with a view to verifying whether the two women were its only occupants and whether it contained any valuables. R. was an acquaintance of O. and P. whom they got to know through their friend L. when they had stayed in her apartment in Kassel. Hence, the unsuspecting women did not object to the men entering the apartment. Following their visit the two men reported to the residual members of the criminal gang that they had spotted a safe in the apartment’s kitchen. 13. On 3 February 2007 at around 8 p.m. the applicant and a further accomplice, B., gained access to O. and P.’s apartment pretending to be potential clients while one of the co-accused was waiting in a car parked close to the apartment building and the other co-accused in front of the house. Once inside the apartment B. produced a knife that he had carried along in his jacket. P., trying to escape from the perpetrators, jumped from the apartment’s balcony located approximately two meters off the ground and ran away. The applicant jumped after her but abandoned the chase after some minutes when passers-by appeared nearby on the street. He then called the co-accused waiting in front of the women’s apartment on his mobile phone and gave him an account of the events. He agreed with the latter on a meeting point where the co-accused were supposed to pick him up with the car once accomplice B. would have left the crime scene and have joined them. In the meantime inside the apartment, B. after having overpowered O. threatened to kill her with his knife should she not disclose where the women kept their money or should she refuse to open the safe for him. Fearing for her life O. opened the safe from which B. removed EUR 300 and also handed over the contents of her wallet in the amount of EUR 250. B. left the apartment at around 8.30 p.m. taking the money and P.’s mobile phone as well as the apartments’ landline phone with him and joined the coaccused. The co-accused and B. then picked up the applicant at the agreed meeting point with their car. 14. At approximately 9.30 p.m. P. rejoined O. at the apartment. The women called their friend L. in Kassel and gave her a brief account of the events. The next day they also told their neighbour E. about the crime. Later that day the women, afraid of remaining alone in the Göttingen apartment, drove to Kassel where they stayed a few days with their friend L. Following short subsequent stays in Frankfurt am Main and back in Göttingen they returned to Latvia in February 2007. 15. The Regional Court based its finding of facts regarding the first crime committed in Kassel on 14 October 2006 on the statements made by the victims L. and I. on the occasion of their police interrogations as well as in the course of the subsequent trial. Both witnesses had identified the applicant without any hesitation as the perpetrator who had carried the gun when presented with his photo on the occasion of their police interviews and later when confronted with him personally at trial. The Regional Court found L. and I.’s testimonies to be consistent and credible and noted that they were supported by the statements of the police officers who had attended the crime scene and had interviewed L. and I. in the course of the preliminary investigations and who had all been heard as witnesses during the trial. 16. As regards the establishment of facts in relation to the second crime committed in Göttingen the Regional Court relied in particular on pre-trial statements made by the victims O. and P. in the course of police interrogations in the period from 15 to 18 February 2007 and before an investigating judge on 19 February 2007. 17. By a decision of 21 February 2008 the Regional Court, dismissing a related objection by the defence, ordered that the records of O. and P.’s interrogations by the police and the investigating judge be read out at the trial and be admitted as evidence in the proceedings in accordance with Article 251 (1) and (2) of the German Code of Criminal Procedure (see Relevant domestic law below). The said article provides for such possibility in the event insurmountable impediments make it impossible to hear a witness in the foreseeable future. The Regional Court pointed out in this context that it had not been possible to hear the witnesses in the course of the trial since they had returned to their home country Latvia shortly after their interrogations at the investigative stage and all attempts to enable their examination at the main hearing had been to no avail. 18. The Regional Court specified that O. and P. had been summoned to appear before the Regional Court on 24 August 2007, the third day of the trial. However, they both had refused to attend the hearing relying on medical certificates dated 9 August 2007 that indicated their unstable posttraumatic emotional and psychological condition. Consequently, on 29 August 2007 the court had sent letters to both witnesses asking under what conditions they would be ready to testify at trial. While an acknowledgement of receipt had been returned for both letters, no response had been obtained from P. O. for her part had informed the Regional Court in writing that due to the fact that she was still traumatised by the crime, she would neither accept to appear at the trial in person nor would she agree to be examined by means of an audio-visual transmission. O. had further mentioned that she had nothing to add to her statements made in the course of the interviews before the police and the investigating judge in February 2007. 19. The Regional Court nevertheless requested legal assistance from the Latvian authorities and asked for the witnesses to be heard by a court in Latvia and the hearing to be transmitted by voice and image (audiovisuelle Vernehmung). However, a witness hearing scheduled by the competent Latvian court for 13 February 2008 was cancelled shortly before by the presiding Latvian judge on the ground that the witnesses, again relying on medical certificates, had demonstrated that they were still suffering from post-traumatic disorders as a consequence of the crime and that a further confrontation with the events in Göttingen would risk aggravating their condition. The witnesses had further claimed that following threats by the accused they feared possible acts of revenge. 20. The Regional Court informed their Latvian counterpart by a letter dated 21 February 2008 that according to the standards of German law of criminal procedure the reasons advanced by the witnesses were not sufficiently substantiated to justify their refusal to testify. The court suggested to the competent Latvian judge to have the witnesses examined by a public medical officer (Amtsarzt) and, alternatively, to coerce them to attend the hearing. 21. As the letter remained unanswered, the Regional Court considered that it did not dispose of any further legal means to enforce a hearing of O. and P. Having further regard to the fact that the recently renewed medical certificates indicated that the witnesses’ state of health would not change any time soon, the Regional Court concluded that it was impossible to have the witnesses examined in the foreseeable future. Pointing out that courts were under an obligation to conduct proceedings involving the deprivation of liberty expeditiously and in view of the fact that the accused had already been held in custody for a considerable period of time, the court was of the opinion that it could not be justified to further delay the proceedings. 22. Consequently, a further objection against the introduction of the witnesses’ pre-trial statements by counsel of one of the co-accused was rejected by the Regional Court and the records of the witnesses’ police interrogations and interviews with the investigative judge were read out during a hearing on 26 February 2008. 23. In its judgment running to some 152 pages, the Regional Court pointed out that in assessing the available evidence it had been aware of the reduced evidentiary value of the records of O. and P.’s pre-trial testimonies. It had further taken into account that neither the applicant nor counsel for the defence had been provided with an opportunity to examine the only direct witnesses of the crime in Göttingen at any stage of the proceedings. At the time of the last pre-trial interrogation of O. and P. on 19 February 2007, the applicant had not been informed about the preliminary criminal proceedings initiated against him with a view to not putting the investigations at risk. No warrant for his arrest had yet been issued and he had not been represented by counsel. The investigating judge had excluded the applicant from the hearing in accordance with Article 168 (c) of the Code of Criminal Procedure since he had been concerned that the witnesses would be afraid of telling the truth in the presence of the accused. The Regional Court further emphasised that at the investigative stage there had been no indication that O. and P. who had testified on several occasions before the police and then before the investigating judge would refuse to repeat their statements at a subsequent trial. 24. The Regional Court held that notwithstanding the resulting restrictions for the defence, the trial as a whole had been fair and had complied with the requirements of Article 6 § 3 (d) of the Convention. The court was thus not prevented from admitting O. and P.’s pre-trial statements as evidence in the proceedings. It had made considerable efforts to enable a direct examination of O. and P. by the accused and counsel for the defence at trial. Moreover, once the witnesses had proved to be unavailable the Regional Court had ensured that a maximum of further witnesses who had been in contact with O. and P. in relation to the events at issue could be heard at trial. Finally, the court had taken several items of evidence as corroborating O. and P.’s pre-trial testimonies into account when assessing their evidentiary value. 25. In the Regional Court’s opinion the records of O. and P.’s interrogations at the investigative stage showed that they had given detailed and coherent descriptions of the circumstances of the crime. Minor contradictions in their statements could be explained by their concern not to disclose their illegal residence status and activities to the authorities and by the psychological strain they had been subject to during and following the incident. The witnesses had feared problems with the police and acts of revenge by the perpetrators. This explained why the witnesses had not pressed charges immediately after the events and why the police had only been informed of the crime on 12 February 2007 by their friend L. As regards O. and P.’s’ failure to identify the applicant when confronted with several photos of potential suspects during the police interrogations, the court observed that the witnesses’ attention during the incident had been focussed on the further perpetrator carrying the knife and that the applicant himself had only stayed a short period of time in the apartment. Their inability to identify the applicant also showed that the witnesses, as opposed to the defence’s allegations, had not testified with a view to incriminating him. 26. In the court’s opinion the fact that the detailed description of the events in the witnesses’ pre-trial statements were consistent with the account they had given the morning after the crime to their neighbour E., who had been heard as a witness during the trial, was a further strong indication for their credibility and the veracity of their statements. This witness had further testified that on the evening of 3 February 2007 at around 9.30 p.m. another neighbour, an elderly woman who got scared when she heard noise coming from O. and P.’s apartment, had called on her and asked her to accompany her to the women’s flat to investigate what had happened. O. and P. had, however, not answered the door when the neighbours were ringing the bell. 27. The Regional Court further observed that O. and P.’s description of the events also coincided with their friend L.’s recollection of her conversations with O. and P. following the crime as reproduced during L.’s witness hearing at trial. In addition, the police officers and the investigating judge who had examined O. and P. at the pre-trial stage had all testified at trial that they had found the witnesses to be credible. 28. The Regional Court noted that since neither the defence nor the court itself had had an opportunity to observe the main witnesses’ demeanour at trial or by means of an audio-visual examination, it had to exercise particular diligence in assessing the evaluation of the witnesses’ credibility by the police officers and the investigating judge. The court further emphasised that when taking into account the testimonies given by the witnesses’ neighbour E. and their friend L. it had paid special attention to the fact that their statements constituted hearsay evidence and had to be assessed particularly carefully. 29. In this context it had been of relevance that O. and P.’s testimonies as well as the statements of the further witnesses at trial had been supported by further significant and admissible evidence such as data obtained through tapping of the applicant’s and the co-accused’s mobile phones and by means of a satellite-based global positioning system (“GPS”). Such information had been gathered within the scope of police surveillance measures carried out at the relevant time in relation to preliminary criminal proceedings initiated against the accused on suspicion of racketeering and extortion (Schutzgelderpressung) in the Göttingen drug scene. The link between the evidence obtained in the course of such separate investigations and the crime at issue could only be made after O. and P. had reported the incident of 3 February 2007 to the police. It followed from the recordings of two mobile phone conversations between one of the co-accused and the applicant in the evening of 3 February 2007 at 8.29 p.m. and 8.31 p.m. that the latter had been present in the victims’ apartment accompanied by B. and that he had jumped from the balcony in order to chase one of the escaping victims whom he failed to capture, while B. had stayed in the apartment. Furthermore, an analysis of the GPS data showed that the car of one of the co-accused had been parked near the crime scene from 7.58 p.m. to 8.32 p.m. on the evening of 3 February 2007, a period that coincided with the time-frame in which the robbery in issue had occurred. 30. Finally, while the applicant and the co-accused had denied any participation in the robbery as such or any premeditated criminal activity in this respect, their own statements at trial had at least confirmed that one of the co-accused together with R. had visited the apartment at Göttingen on the evening before the crime and that the applicant and B. had been present in the apartment at the time of the incident the following day. The applicant had testified that he and B. had come to the apartment with a view to making use of the women’s services as prostitutes. He further had conceded that he had followed P. when she escaped over the balcony and explained that he had done so in order to prevent her from calling the neighbours or the police since he had been afraid of getting problems in view of his criminal record and the problems he had previously had with prostitutes on a similar occasion in Kassel. 31. In the court’s view the body of evidence taken together gave a coherent and complete overall picture of the events that supported the version provided by witnesses O. and P. and refuted the contradictory statements made by the applicant and the co-accused in the course of the trial. 32. Counsel for the applicant lodged an appeal on points of law against the judgment of the Göttingen Regional Court in which he complained that the applicant had not been able to examine the only direct witnesses of the crime committed in Göttingen at any stage of the proceedings in breach of Article 6 §§ 1 and 3 (d) of the Convention. He argued that such inability had been imputable to the domestic authorities. According to the Federal Court of Justice’s case-law counsel had to be appointed for an unrepresented accused if the key witnesses for the prosecution were to testify before an investigating judge and the accused was excluded from this hearing. However, at the time of the witness hearing the applicant had not even been informed about the preliminary proceedings instituted against him and the public prosecution authorities had not requested that defence counsel be appointed for him. Consequently, O. and P.’s testimonies ought to have been excluded from the trial. 33. By written submissions dated 9 September 2008 the Federal Public Prosecutor General (Generalbundesanwalt) moved that the applicant’s appeal on points of law be dismissed by the Federal Court of Justice as manifestly ill-founded in written proceedings pursuant to Article 349 (2) of the Code of Criminal Procedure (see Relevant domestic law below). The Prosecutor General argued that while it was true that the proceedings had been characterised by a “complete loss” of the applicant’s right to examine O. and P. (“Totalausfall des Fragerechts”), they had as a whole been fair and there had been no reason to exclude the witness statements of O. and P. as evidence. The Regional Court had assessed the contents of the records of the witnesses’ testimonies read out at trial particularly carefully and critically. Furthermore, it had not made their statements the sole or decisive basis of the applicant’s conviction but had taken further significant evidence into account. In view of the various layers of corroborating evidence the applicant had had ample opportunities to put into question the credibility of the two main witnesses and to effectively defend himself. The Federal Prosecutor, endorsing the Regional Court’s related arguments, further pointed out that there was nothing to demonstrate that the restrictions to the defence’s right to examine the witnesses had been imputable to the domestic authorities. 34. By written submissions of 28 September 2008 the applicant replied to the Federal Prosecutor’s observations and requested the Federal Court of Justice to hold a hearing in the appeal proceedings. 35. By a decision of 30 October 2008 the Federal Court of Justice, referring to 349 (2) of the Code of Criminal Procedure, dismissed the applicant’s appeal on points of law as manifestly ill-founded. 36. By written submissions of 17 November 2008 the applicant complained of a violation of his right to be heard (Anhörungsrüge) on the ground that no hearing had been held in the appeal proceedings and that the Federal Court of Justice’s decision rejecting his appeal did not provide any reasons. 37. In its decision of 9 December 2008 rejecting the applicant’s complaint the Federal Court of Justice pointed out that any decision dismissing an appeal on the basis of Article 349 (2) of the Code of Criminal Procedure implied a reference to the respective reasoning provided by the Prosecutor General. 38. By a decision of 8 October 2009 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the decisions of the Federal Court of Justice dated 30 October and 9 December 2008 for examination without providing reasons. 39. It follows from the applicant’s submissions that he has meanwhile left prison and returned to his native country Georgia. | 0 |
test | 001-163804 | ENG | RUS | COMMITTEE | 2,016 | CASE OF MAMONTOV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Alena Poláčková;Helen Keller;Johannes Silvis | 4. The applicants were all targeted in undercover operations carried out by the police in the form of test purchases of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal convictions for drug dealing. 5. The applicants disagreed with their convictions and argued that the police had incited them to commit drug-related offences. They also complained that they had not been able to examine the witnesses who had testified against them. | 1 |
test | 001-167733 | ENG | BGR | ADMISSIBILITY | 2,016 | CORETCHI v. BULGARIA | 4 | Inadmissible | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev | 1. The applicant, Mr Fiodor Dumitru Coretchi, is a Moldovan national who was born in 1960 and lives in Ialoveni, Moldova. He was represented before the Court by Ms A. Dadu, a lawyer practising in Ialoveni. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice. 2. The applicant complained, in particular, about having been unlawfully detained in Bulgaria pending extradition to Moldova. 3. On 8 February 2010 the application was communicated to the Government. Later the same month the Moldovan Government was informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. They chose not to avail themselves of this right. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In 2001 the Moldovan investigating authorities came upon information leading them to suspect that in 1998 the applicant had been involved in a car theft. However, they were unable to question him as he had left Moldova earlier the same year to work in Greece. In 2002 they issued an international warrant for his arrest through Interpol. 6. On 31 July 2004, when crossing into Bulgaria from Greece, the applicant was arrested by the Bulgarian border police on the basis of the warrant issued by the Moldovan authorities. He was informed in the presence of an interpreter that he was being arrested in connection with that warrant. The same day the police ordered that he be held under arrest for twenty-four hours under section 70(1)(6) of the 1997 Ministry of Internal Affairs Act (see paragraph 36 below). The applicant was given a copy of the order. He surrendered his car to the border police. 7. On the same day, 31 July 2004, the Moldovan authorities confirmed their intention to their Bulgarian counterparts to submit an official request for the applicant’s extradition to Moldova. Later that day the National Interpol Office within the Bulgarian Ministry of the Interior informed the Sofia city prosecutor about the applicant’s arrest. 8. The prosecutor then issued an order for the applicant’s detention for seventy-two hours, counting from the expiry of the twenty-four-hour police arrest. The order referred to Article 16 of the 1957 European Convention on Extradition (“the Extradition Convention”), as well as Article 440 of the Bulgarian Code of Criminal Procedure of 1974 (“the 1974 Code”) in conjunction with Article 152a § 3 of the 1974 Code. The order also stated that the regional prosecutor of Blagoevgrad should be immediately put on notice in order to ask the Blagoevgrad Regional Court to authorise the applicant’s further detention. 9. On 4 August 2004 the Blagoevgrad Regional Court ordered the applicant’s detention for forty days, pending receipt of the Moldovan extradition request. On 5 August 2004 he was transferred to Bobov Dol Prison on the basis of that court’s decision. On 11 August 2004 the Bulgarian Prosecution Service informed the Moldovan authorities that the applicant had been detained pending the official Moldovan request for his extradition. Such a request had to reach Bulgaria by 8 September 2004 when the applicant’s forty-day detention would expire. 10. On 7 September 2004 the Bulgarian Supreme Cassation Prosecutor’s Office received the extradition request. The next day that Office extended the applicant’s detention for seventy-two hours following the end of the forty-day detention period ordered by the court. The prosecutor relied on Articles 440 and 440a of the 1974 Code (see paragraphs 28-29 below) and Article 22 of the Extradition Convention (see paragraph 26 below). The Bulgarian Supreme Cassation Prosecutor’s Office additionally instructed the Blagoevgrad regional prosecutor’s office immediately to seek a court order extending the applicant’s detention and to submit the extradition request to the court for examination. 11. On 9 September 2004 the Blagoevgrad Regional Court, in proceedings in which the applicant was assisted by an interpreter and a court-appointed lawyer, refused to authorise the applicant’s extradition to Moldova or his detention for that purpose. The court found in particular that there had been no order in Moldova for the applicant’s detention with a view to his serving a sentence, one of the conditions of the Extradition Convention. On 10 September 2004 the applicant was released from Bobov Dol Prison on the basis of that decision. 12. On 9 September 2004, seeing that the proceedings for the applicant’s extradition were still pending, the regional prosecutor of Blagoevgrad imposed a ban on the applicant leaving the country. The ban was valid until the end of the extradition proceedings and was based on a provision in the 1974 Code which stated that individuals could be banned from leaving the country if criminal proceedings were pending against them (see paragraph 34 below). 13. On 16 September 2004 the applicant registered with the authorities in Blagoevgrad where he took up his residence on a provisional basis. On 20 September 2004 the border police returned the applicant’s car to him. He signed a form confirming that the car was not damaged and that nothing was missing from it. 14. The Bulgarian border police placed the applicant under arrest for twenty-four hours at 12.30 a.m. on 25 September 2004 when he tried to leave Bulgaria by crossing the border with Greece. The order for his arrest was based on section 70(1)(7) of the 1997 Ministry of Internal Affairs Act (see paragraph 36 below) and referred to the arrest warrant issued by the Moldovan authorities in connection with the applicant’s extradition. The applicant was informed of the essence of the order in the presence of a Russian interpreter. He surrendered his car to the border police and signed a form where he wrote in Russian that he objected to his arrest. 15. Having verified that a valid ban on the applicant’s leaving the country was in force and that there were no grounds for his detention, the police released him at midday on 25 September 2004, which was twelve and a half hours before the expiry of the order for his arrest. It is unclear what happened to the applicant’s car. He did not ask for its return. 16. In a decision delivered on 27 September 2004, following a public hearing that had been held the previous week in response to an appeal by the prosecutor against the ruling of the Blagoevgrad Regional Court of 9 September 2004 (see paragraph 11 above), the Sofia Court of Appeal allowed the applicant’s extradition to Moldova. It found that the lower court had wrongly assessed the Moldovan authorities’ request. In particular, the applicant had not been wanted in Moldova to serve a sentence, as the firstinstance court had found, but to be tried in connection with an offence. That meant that a different provision of the Extradition Convention had applied and all the material and procedural requirements to grant that request had been met. 17. The Sofia Court of Appeal held in a separate decision of 27 September 2004, issued following a closed hearing the same day, that it could not rule on the applicant’s detention pending extradition. It said that it had already adopted a final and enforceable decision allowing the applicant’s extradition and that that decision had put an end to the extradition proceedings. Given that those proceedings had been concluded, the applicant could thereafter only be detained for the purposes of being handed over to the requesting authorities. 18. In a letter of 7 October 2004, the Blagoevgrad regional prosecutor’s office advised the Supreme Prosecution Office that the applicant was not in detention but that there was a valid ban on his leaving the country. It noted that he was also registered at the address of his court-appointed lawyer and that his passport and car had been returned to him. 19. On 14 October 2004 the Bulgarian Supreme Cassation Prosecutor’s Office ordered the applicant’s detention for the purposes of his extradition to Moldova. The prosecutor’s order, written over five pages, comprised an overview of the procedural steps carried out up to that point. The order specified that the extradition proceedings were in their final phase and that the applicant was not in detention. Given that his extradition had been agreed with the Moldovan authorities and a concrete date and time for it had been set – 18 October 2004 at 11 a.m. local time – it was necessary to apprehend him for the purposes of his actual transfer into the custody of the Moldovan authorities. 20. The prosecutor then instructed the police to place the applicant under arrest on 15 October 2004 for twenty-four hours in order to extradite him. In the same order the prosecutor authorised keeping the applicant in detention for the same purpose for seventy-two hours, starting from 16 October 2004. The order referred to section 119(2)(4) of the Judicial Power Act 1994 (see paragraph 33 below, last sentence), as well as to Article 152a § 3 of the 1974 Code of Criminal procedure (see paragraph 32 below) and Articles 18 and 22 of the Extradition Convention (see paragraphs 24 and 26 below). It also stated that personal possessions taken from the applicant by the Bulgarian authorities when he had been arrested should be handed over to the Moldovan authorities at the same time as his transfer. 21. The applicant was detained on 15 October 2004 and handed over to the Moldovan authorities on 18 October 2004 as agreed. The report on his transfer stated that personal possessions held by the Bulgarian authorities were handed over to the Moldovan authorities at the same time. 22. On 23 December 2004 the Moldovan authorities discontinued the criminal proceedings against the applicant. On 1 July 2005 the applicant asked the Bulgarian authorities to take him off their database of wanted persons so that he could transit Bulgaria without fearing arrest. On 4 July 2005 the Supreme Cassation Prosecutor’s Office allowed that request and informed him accordingly. The border police recorded on 4 July 2005 that the applicant left Bulgaria with his car on that day. 23. The Extradition Convention entered into force in respect of Bulgaria on 15 September 1994 and in respect of Moldova on 31 December 1997. Article 16 of the Convention, which governs provisional arrest, provides as follows: “1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. 2. The request for provisional arrest shall state that one of the documents mentioned in Article 12, paragraph 2.a, exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought. 3. A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or through the International Criminal Police Organisation (Interpol) or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request. 4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought. 5. Release shall not prejudice rearrest and extradition if a request for extradition is received subsequently.” 24. Article 18 governs the surrender of the person to be extradited and provides that: “1. The requested Party shall inform the requesting Party by the means mentioned in Article 12, paragraph 1, of its decision with regard to the extradition. 2. Reasons shall be given for any complete or partial rejection. 3. If the request is agreed to, the requesting Party shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender. 4. Subject to the provisions of paragraph 5 of this article, if the person claimed has not been taken over on the appointed date, he may be released after the expiry of 15 days and shall in any case be released after the expiry of 30 days. The requested Party may refuse to extradite him for the same offence. 5. If circumstances beyond its control prevent a Party from surrendering or taking over the person to be extradited, it shall notify the other Party. The two Parties shall agree a new date for surrender and the provisions of paragraph 4 of this article shall apply.” 25. Article 20, which governs the handing over of property, provides as follows: “1. The requested Party shall, in so far as its law permits and at the request of the requesting Party, seize and hand over property: a) which may be required as evidence, or b) which has been acquired as a result of the offence and which, at the time of the arrest, is found in the possession of the person claimed or is discovered subsequently. 2. The property mentioned in paragraph 1 of this article shall be handed over even if extradition, having been agreed to, cannot be carried out owing to the death or escape of the person claimed. 3. When the said property is liable to seizure or confiscation in the territory of the requested Party, the latter may, in connection with pending criminal proceedings, temporarily retain it or hand it over on condition that it is returned.” 26. Article 22, which specifies the applicable procedure, provides as follows: “Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party.” 27. The Explanatory Report defines the scope of application of Article 1 of Protocol No. 7 and clarifies the notion of “expulsion” as follows: “9. The word “resident” is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose ... The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person’s presence in the territory to be considered “lawful”. [A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still “lawfully” present. 10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation.” 28. At the relevant time the extradition of persons accused of criminal offences was governed by Articles 439a-41 of the 1974 Code of Criminal Procedure. Articles 440-440c governed the procedure for processing an extradition request made by another State. 29. Once received, the extradition request had to be sent to the competent regional prosecutor (Article 440 §§ 1 and 2). That prosecutor then had to take the statement of the person whose extradition was being sought, implement any measure taken to secure his or her appearance, and transmit the extradition request to the competent regional court (Article 440 § 3). The request was then to be examined by three judges at a public hearing. The person whose extradition was being sought had to be provided with counsel and an interpreter (Article 440a § 1). The court had to hear the public prosecutor, the person and his or her counsel, and then either allow or refuse the extradition. In its ruling it additionally had to specify whether personal items, documents and money found on the individual and having a connection with his or her offence should be handed over to the requesting State as well (Article 440a § 2). The court’s ruling was subject to appeal before the court of appeal whose decision was final (Article 440c). The prosecutor was responsible for implementing judicial decisions authorising extradition (Article 440b § 3 and Article 440c § 2). 30. At present the procedure for detention in the context of extradition proceedings requested by a third State is laid down in considerable detail in the 2005 Extradition and European Arrest Warrant Act (section 13), which entered into force on 4 July 2005 and repealed Articles 435-41 of the 1974 Code. 31. Article 152a of the 1974 Code of Criminal Procedure, which governs the procedure for imposing pre-trial detention, was changed entirely – with effect from 1 January 2000 – in a bid to bring Bulgarian law into line with Article 5 the Convention (тълк. реш. № 1 от 25 юни 2002 г. по н.д. № 1/2002 г., ОСНК на ВКС). 32. The amended paragraph 3 of Article 152a provided at the time of the facts that the investigation and prosecution authorities had to ensure the prompt appearance of the accused before the competent first-instance court and, if necessary, detain him or her for that purpose before bringing him or her before the court. Such detention could not exceed twenty-four hours if ordered by an investigator or seventy-two hours if ordered by a prosecutor. No judicial review was available in respect of such detention. 33. At the relevant time the bodies responsible for the investigation at the pre-trial stage were investigators (Article 172 of the 1974 Code) and the prosecutors who supervised the activities of the former (Article 176 of the 1974 Code). The prerogatives of the prosecutor included the issuing of mandatory instructions to the police (section 119(2)(4) of the Judicial Power Act 1994). 34. Under Article 153a § 1 of the 1974 Code of Criminal Procedure, as applicable at the relevant time, the prosecutor could prohibit an individual accused of a criminal offence from leaving Bulgaria without permission. The prohibition order was subject to judicial review (Article 153a § 3). The court had to rule immediately by means of a final decision (Article 153a § 4). 35. At the relevant time and until 2012, individuals could seek damages for unlawful detention under the SMRDA provided that such detention had been set aside in prior proceedings for lack of lawful grounds. Following amendments introduced in the SMRDA in 2012, in particular in section 2(1)(1), individuals can seek damages for all cases of detention in breach of Article 5 § 1 of the Convention. Civil courts examine the issue of lawfulness and compensation in the same set of proceedings. 36. Under the 1997 Act, as in force at the relevant time, the police could, on the basis of a written order, arrest individuals who were on international wanted lists owing to extradition requests from other States (section 70(1)(7)). An individual taken into police custody was entitled to be assisted by counsel and seek judicial review of his detention (section 70(3) and (4)). The application had to be examined immediately (section 70(3) in fine). Police detention under section 70 could not exceed twenty-four hours (section 71 in fine). 37. Arrest orders under section 70 were administrative decisions and any subsequent judicial review of them was carried out in accordance with the standard rules of administrative procedure, meaning that such an order could be appealed against within fourteen days of the arrestee’s being apprised of the order. According to the case-law of the Supreme Administrative Court (опр. № 1793 от 17 февруари 2006 г. по адм. д. № 1390/2006, ВАС, V отд.; реш. № 894 от 31 януари 2005 г. по адм. д. № 5783/2004 г., ВАС, V отд.), persons affected by police arrests could challenge their lawfulness before a court and, if the orders were set aside, the individuals concerned could seek damages under section 1 of the SMRDA. | 0 |
test | 001-148267 | ENG | MDA | CHAMBER | 2,014 | CASE OF URECHEAN AND PAVLICENCO v. THE REPUBLIC OF MOLDOVA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award | Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicants were born in 1950 and 1953 respectively and live in Chişinău. 6. Both applicants were politicians at the time of the events. The first applicant was mayor of Chișinău and the leader of an opposition political party. The second applicant was a Member of Parliament (“MP”) and member of an opposition party. 7. On 30 November 2004 and 3 March 2007 the then president of the Republic of Moldova Mr V. Voronin (hereinafter “the President”) participated in two television programmes on two privately owned channels, one of which had national coverage. He was interviewed by journalists on various topics such as the economy, justice, foreign relations and elections. The President stated, among other things, that “during the ten years of activity as a Mayor of Chisinau, Mr Urecheanu did nothing but to create a very powerful mafia-style system of corruption”. When referring to the second applicant and to other persons, the President stated that all of them “came straight from the KGB”. 8. Both applicants brought libel actions against the President, seeking a retraction of the impugned statements and compensation. The first applicant sought compensation of 0.1 Moldovan lei (MDL), while the second applicant claimed MDL 500,000 plus payment of her court fees and legal costs. The President’s representative opposed the actions arguing that the impugned statements had been covered by his immunity. 9. On 11 January 2005 the Buiucani District Court discontinued the proceedings in the case lodged by the first applicant on the grounds that the President enjoyed immunity and could not be held responsible for opinions expressed in the exercise of his mandate. The court gave the following reasoning in its decision: “Having examined the materials of the case and heard the parties, in the light of Article 265 of the Code of Civil Procedure, the court considers it necessary to strike out the case. Thus, Article 81 para. 2 of the Constitution provides as follows: ‘The President of the Republic of Moldova shall enjoy immunity. He may not be held legally responsible for opinions expressed in the exercise of his mandate’. It its judgment Nr. 8 of 16 February 1999 on the interpretation of Article 71 of the Constitution, the Constitutional Court held that legal responsibility encompasses responsibility under criminal, civil and administrative laws. In the same judgment, the Constitutional Court gave an extensive explanation to the expression “opinions expressed in the exercise of his mandate” used in Article 71 of the Constitution, holding that it means the point of view, opinions and convictions expressed in the exercise of his mandate in respect of matters and events from public life. In such circumstances of fact and law, the court considers it necessary to strike out the case against the President of the Republic of Moldova, V. Voronin, on the ground that he cannot be held liable under civil law.” 10. On 25 April 2007 the Centru District Court discontinued the proceedings in the case lodged by the second applicant on the grounds that the President enjoyed immunity. The court gave the following reasoning in its decision: “Having heard the arguments of the parties and having analysed the materials of the case, the court considers well founded the plea of the representative of the defendant to strike the case out. The Constitution guarantees a large immunity to the chief of the state. Thus, Article 81 para. 2 of the Constitution provides as follows: ‘The President of the Republic of Moldova shall enjoy immunity. He may not be held legally responsible for opinions expressed in the exercise of his mandate’. For elucidating the limits of this constitutional immunity, the court refers to judgment Nr. 8 of 16 February 1999 of the Constitutional Court. Giving its interpretation to Article 71 of the Constitution, the Constitutional Court held that legal responsibility encompasses responsibility under criminal, civil and administrative laws. The Constitutional Court also gave an explanation to the meaning of the expression ‘opinions expressed in the exercise of his mandate’ ruling that it means the point of view, opinions and convictions expressed in the exercise of his mandate in respect of matters and events from public life. From the meaning of the judgment of the Constitutional Court, the court considers that the independence of the opinions of the President of the Republic of Moldova in the exercise of his mandate is absolute and perpetual. In her action lodged with the court, plaintiff V. Pavlicenco relies on Articles 16 and 1422 of the Civil Code and asks for the President of the Republic of Moldova to be held liable under civil law, namely for the opinions expressed by him publically in a programme in the exercise of his mandate. In view of the circumstances described above, bearing in mind the principle of the presidential immunity enjoyed by the President of the Republic of Moldova and of the impossibility to hold him responsible under law, the court comes to the conclusion that the present case must be struck out of the list of cases because in this case the President of Moldova cannot be held liable either by a court or by any other bodies.” 11. Both applicants appealed, arguing that Article 81 § 2 of the Constitution afforded immunity to the President only in respect of opinions he expressed and not in respect of statements of fact. Moreover, they argued that the impugned statements made by the President had not been in connection with the exercise of his official functions, and that the court of first instance had failed to determine whether that had been the case. In support of that argument, the second applicant pointed to the President’s official duties as enumerated in the Constitution, and to the fact that some of the topics discussed during the television programme, such as problems in the economy, foreign affairs and the functioning of parliament, fell outside the scope of the President’s official functions. The second applicant also stressed that the accusation made against her (that she had belonged to the KGB) was very offensive, and had been made by a very important person in the State at a prime-time hour on a channel with national coverage. Even if the President had been exercising his official functions when participating in the television programme, the defamatory accusations made against her could not be considered part of those functions. Both applicants complained that the first-instance decision had unjustifiably limited their right of access to court, in breach of the Constitution and Article 6 of the Convention. 12. On 3 February 2005 and 14 June 2007 the Chișinău Court of Appeal dismissed the applicants’ appeals and upheld the judgments at first instance. | 1 |
test | 001-161948 | ENG | RUS | CHAMBER | 2,016 | CASE OF SVETLANA VASILYEVA v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1978 and lives in Kaliningrad. 6. On unspecified date the applicant bought a house in Kaliningrad. A third person, M., was her authorised representative for the conclusion of the purchase contract. 7. On 18 August 2003 her ownership of the house was registered in the Consolidated State Register of Real Estate Titles and Transactions (Единый государственный реестр прав на недвижимое имущество и сделок с ним, “the Land Register”) and it remains there to date. 8. On an unspecified date M. was charged with fraud against the Savings Bank of Russia (Сбербанк) (hereafter – “the Bank”) and a private person. 9. On 20 April 2005 a judge of the Lomonosovskiy District Court of Arkhangelsk issued an interlocutory injunction prohibiting the applicant from selling the house. 10. On 15 March 2006 the Oktyabrskiy District Court of Arkhangelsk found M. guilty of fraud. The court found, inter alia, that M. was also the de facto owner of the house as she had paid for it and resided in it since 2003. The court ordered the seizure and sale of the house in order to pay M.’s debt to the victims of the crime. 11. On 9 June 2006 the Arkhangelsk Regional Court partly quashed M.’s conviction on appeal, notably as regards the District Court’s finding that she was the real owner of the house. It considered that this finding was not based on any legal provision and failed to take into account the purchase contract concerning the house. The Regional Court thus remitted that specific issue for fresh consideration in civil proceedings. 12. On an unspecified date the Bank sued M. for additional damages and sought reimbursement by means of the sale of the house. The applicant was also summoned to the proceedings as a defendant. 13. On 17 September 2007 the Tsentralnyy District Court of Kaliningrad rejected the Bank’s civil claims and declared that the house was the applicant’s property. It held that the applicant had always demonstrated her intention to be the owner of the disputed house, notably by systematically paying all charges and taxes relating to the house, and that her mother was living in it. As regards the Bank’s request for annulment of the powers of attorney given by the applicant to M. for the purchase of the house and of the purchase contract itself, the District Court found that this claim was time-barred and consequently rejected it. 14. On unspecified date the Bank lodged an appeal against that judgment, notably arguing that the purchase contract should be declared null and void because the applicant had never intended to become the real owner of the house but was merely helping M. to cover up for her crimes. 15. On 19 December 2007 the Kaliningrad Regional Court upheld on appeal the judgment of 17 September 2007, which became final. 16. On 16 April 2008 the applicant applied to the Tsentralnyy District Court of Kaliningrad for the revocation of the interlocutory decision of 20 April 2005 by the Lomonosovskiy District Court of Arkhangelsk to seize the house. 17. On 28 April 2008 the Tsentralnyy District Court of Kaliningrad rejected the application on the grounds that it lacked jurisdiction to decide on a measure imposed by another court in the framework of criminal proceedings. 18. On 4 May 2008 the Bank lodged an application for supervisory review. 19. On 18 August 2008 the Presidium of the Kaliningrad Regional Court quashed the judgment of 17 September 2007, as upheld on 19 December 2007, and ordered the seizure of the house from the applicant in order to pay M.’s debt to the Bank. The Presidium relied on the finding made by the Oktyabrskiy District Court in its judgment of 15 March 2006 that although the applicant was registered as the official owner of the house, it had been bought with funds belonging to M. 20. On 16 October 2008 and 10 March 2009 the applicant and M. challenged the judgment of the Presidium of the Kaliningrad Regional Court by way of supervisory review applications, which were rejected by the Supreme Court and the Deputy President of the Supreme Court, respectively. 21. On 8 June 2009 the bailiff decided to seize the house in accordance with the judgment of the Presidium of the Kaliningrad Regional Court. 22. On 2 April 2010 at the bailiff’s request the Tsentralnyy District Court stayed the enforcement proceedings pending examination of the applicant’s case by the Court. | 1 |
test | 001-175487 | ENG | UKR | COMMITTEE | 2,017 | CASE OF BALANDINA AND ANDREYKO v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time) | 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 civil proceedings and of the lack of any effective remedy in domestic law. In application no. 29432/08, the applicant also raised another complaint under the provisions of the Convention. | 1 |
test | 001-145311 | ENG | BIH | ADMISSIBILITY | 2,014 | MUJKANOVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicants, Ms Munira Mujkanović, Ms Asima Memić, Mr Vehidin Elezović, Mr Muharem Elezović, Ms Naila Bajrić and Ms Sabiha Huskanović are citizens of Bosnia and Herzegovina who were born in 1964, 1938, 1974, 1943, 1945 and 1965, respectively. They live in different towns near the city of Prijedor. The applicants were represented by TRIAL (Track Impunity Always), a non-profit organisation based in Geneva. Four of them had been granted legal aid. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska. 5. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes (for information about that court and its jurisdiction over war crimes cases, see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 34-40, ECHR 2013). More than 100 persons have been finally convicted by the State Court. 6. Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by traditional methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 26 below). It became operational on 1 January 2008. 7. Before the 1992-95 war, the population of the municipality of Prijedor was ethnically mixed: according to a 1991 census, out of a total population of 112,000, 44% were Bosniacs, 42.5% Serbs, 5.5% Croats; 8% others. On 30 April 1992 the Serbian Democratic Party took control of the city of Prijedor pursuant to a secret plan made in advance (notably, the Instructions for Organisation and Activities of the Organs of the Serb People in Bosnia and Herzegovina in a State of Emergency, adopted by the Main Board of the Serbian Democratic Party on 19 December 1991). Shortly thereafter, ethnic cleansing began. By the end of 1992, there were practically no Bosniacs and Croats left in the municipality of Prijedor (about the situation in the Prijedor area at that time, see the ICTY judgment in the Stanišić and Župljanin case, IT-08-91-T, §§ 500-684, 27 March 2013, not yet final). 8. One of the many crimes committed in the context of ethnic cleansing of the Prijedor area was the taking of approximately 150-200 male detainees from Trnopolje camp to the location called Korićanske stijene and their killing by Prijedor policemen on 21 August 1992. The men were made to leave the buses and walk towards the gorge where they were told to kneel down. Then the shooting began. The bodies fell into the gorge or were pushed over the edge. Grenades were then thrown into the gorge to make sure no one survived. The incident lasted for approximately half an hour. Fifteen policemen were reported to be involved in the incident. Only twelve persons survived the massacre, mainly by hiding under the corpses of others (ibid., §§ 641-42; and the ICTY judgment in the Mrđa case, IT-02-59-S, § 10, 31 March 2004). Mr Fahrudin Mujkanović (the husband of Ms Munira Mujkanović), Mr Asmir Memić (the son of Ms Asima Memić), Mr Fahrudin Elezović (Mr Vehidin Elezović’s father), Messrs Edin Elezović and Emir Elezović (the sons of Mr Muharem Elezović), Messrs Zafir Bajrić and Šerif Bajrić (Ms Naila Bajrić’s son and husband), and Mr Zijad Huskanović (Ms Sabiha Huskanović’s husband) were killed in that incident (see the ICTY judgment in the Stanišić and Župljanin case, cited above, §§ 1949-50, 2033-34, 2036-37, 2137-38, 2278-79, 2290-92; and the State Court’s judgment in the Ivanković case, X-KR-08/549-1, p. 2, 2 July 2009). 9. On 24 July 2003 Mr Darko Mrđa pleaded guilty before the ICTY to having participated in the killing at Korićanske stijene. He was sentenced to 17 years’ imprisonment. 10. On 31 July 2003 the ICTY convicted Mr Milomir Stakić, the leading figure in the war-time municipality of Prijedor, for, among other crimes, the killing at Korićanske stijene and sentenced him to life imprisonment. On 22 March 2006 an Appeals Chamber upheld the convictions against Mr Stakić and rendered its judgment, sentencing him to 40 years’ imprisonment. 11. On 27 March 2013 a Trial Chamber of the ICTY convicted Mr Mićo Stanišić and Mr Stojan Župljanin, key figures in the war-time police of the Republika Srpska, of the participation in a joint criminal enterprise to remove Bosniacs and Croats from the territory of the Republika Srpska, a natural and foreseeable consequence of which was, among other crimes, the killing at Korićanske stijene (the third category of joint criminal enterprise –a definition of this form of liability is set out in the ICTY judgment in the Tadić case, IT-94-1-A, § 204, 15 July 1999). Each of them was sentenced to 22 years’ imprisonment. The case is currently pending before an Appeals Chamber of the ICTY. 12. A case against Mr Radovan Karadžić, the war-time President of the Republika Srpska, is also currently pending before the ICTY. He is charged with, among other crimes, the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from the Republika Srpska, a natural and foreseeable consequence of which was the killing at Korićanske stijene (the third category of joint criminal enterprise). 13. As indicated in paragraph 5 above, war crimes chambers were set up within the State Court in 2005. Shortly thereafter, the Prosecutor of Bosnia and Herzegovina (“the State Prosecutor”) opened an investigation into the killing at Korićanske stijene. In the next three years, more than 150 persons were questioned. This led to indictments against 13 persons (see paragraphs 14-15 below). Furthermore, international arrest warrants were issued against two persons who are still on the run, Messrs Draško Krndija and Željko Zec. 14. On 8 January 2009 the State Prosecutor issued an indictment against eight persons for having participated in the killing at Korićanske stijene as a crime against humanity (namely, Messrs Damir Ivanković, Gordan Đurić, Ljubiša Četić, Zoran Babić, Milorad Škrbić, Dušan Janković, Željko Stojnić and Milorad Radaković). It entered into force on 12 January 2009. At the arraignment of 13 February 2009, the accused pleaded not guilty. However, on 22 June 2009, 26 August 2009 and 9 March 2010 three of them, Messrs Ivanković, Đurić and Četić, changed their plea to guilty. They were then sentenced to 14, 8 and 13 years’ imprisonment, respectively. 15. On 10 July 2009 and 17 September 2009 the State Prosecutor issued indictments against five more individuals for the same crime (Saša Zečević, Radoslav Knežević, Marinko Ljepoja, Petar Čivčić and Branko Topola). They entered into force on 13 July and 18 September 2009, respectively. All the accused pleaded not guilty at their arraignment. The State Court decided to join the cases against those five individuals on 3 November 2009. 16. On 21 December 2010 a Trial Chamber of the State Court found four persons guilty of participation in the killing at Korićanske stijene as a crime against humanity (Messrs Zoran Babić, Milorad Škrbić, Dušan Janković and Željko Stojnić) and sentenced them, respectively, to 22, 22, 27 and 15 years’ imprisonment. On 25 October 2011 an Appeals Chamber of the State Court quashed that judgment and scheduled a fresh hearing. On 15 February 2013 it convicted those four people of the same offence and sentenced them to 22, 21, 21 and 15 years’ imprisonment, respectively. One accused in that case, Mr Milorad Radaković, was acquitted. 17. On 28 June 2012 a Trial Chamber of the State Court found three more persons guilty of that crime (Saša Zečević, Radoslav Knežević and Marinko Ljepoja) and sentenced each of them to 23 years’ imprisonment. The other two accused in that case, Petar Čivčić and Branko Topola, were acquitted. An Appeals Chamber of the State Court has recently upheld that judgment. 18. On different dates between 1998 and 2005, the applicants sought and obtained declarations of presumed death with respect to their missing relatives. 19. Four exhumations have so far been carried out at Korićanske stijene: May 2003, October 2003, July-August 2009 and April 2013. Ninety victims have been identified by DNA (see the State Court’s judgment in the Zečević and Others case, S1 1 K 003365 09 KrI, pp. 88-95, 28 June 2012), including Mr Asmir Memić on the basis of four bones on 23 June 2011 and Mr Zafir Bajrić on the basis of two bones the day later. On 24 June 2011 the ICMP confirmed through DNA tests also that some fragments of bones which had been exhumed at Korićanske stijene belonged to either Mr Edin Elezović or Mr Emir Elezović (since they were brothers and did not have children, the available mortal remains were insufficient for definite identification). 20. Around ten burnt bodies were also exhumed (ibid., p. 7). These are impossible to identify. 21. In 2006 all the applicants lodged constitutional appeals alleging that the authorities’ reaction to the disappearance of their relatives amounted to a breach of Articles 2, 3, 5, 8 and/or 13 of the Convention. 22. On 16 July 2007 the Constitutional Court decided to join 227 similar cases and rendered a group decision finding a breach of Articles 3 and 8 of the Convention. It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the missing persons in issue and to ensure that the State agencies envisaged by the Missing Persons Act 2004 (the Missing Persons Institute, Central Records and the Missing Persons Fund) become operational within six months. No compensation was awarded. 23. Under its mandate to examine complaints about non-enforcement of its decisions, on 27 March 2009 the Constitutional Court concluded that the decision of 16 July 2007, mentioned above, was to be considered enforced notwithstanding the fact that some of the State agencies envisaged by the Missing Persons Act 2004 (precisely, the Central Records and the Missing Persons Fund) had not yet become operational. It held that no further action was required from the Constitutional Court as the failure to enforce a similar decision had already been reported to the State Prosecutor (non-enforcement of a final and enforceable decision of the Constitutional Court amounts to a criminal offence; for the relevant law in that regard, see Bobić v. Bosnia and Herzegovina, no. 26529/10, §§ 14-15, 3 May 2012). 24. On different dates in 2009 and 2010 all of the applicants requested damages from the Republika Srpska for the death of their relatives under the Republika Srpska’s general compensation scheme for war damage (for more information about that scheme, see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., § 10, 10 November 2009). Their requests were either rejected as out of time or are still pending. One of the applicants, Ms Asima Memić, has lodged an appeal with the Constitutional Court of Bosnia and Herzegovina in this connection which is still pending. 25. The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping. 26. Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above). 27. In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues. 28. Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far. 29. Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act). 30. Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 27 above). 31. Despite the fact that the verification process outlined in paragraph 30 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 2/98, 39/04, 73/05; the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09). Pursuant to an amendment to section 69 of the Social Care Act 1999 (Official Gazette of the Federation of Bosnia and Herzegovina no. 39/06), which entered into force in September 2006, relatives of missing persons were required to seek such declarations with respect to their missing relatives by September 2008 if they wished to maintain the social benefits provided by that Act. There is no such an obligation in the legislation of the Republika Srpska where most of the present applicants live (all but Ms Munira Mujkanović). | 0 |
test | 001-178174 | ENG | CYP | CHAMBER | 2,017 | CASE OF KAMENOS v. CYPRUS | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Costas Pamballis;Dmitry Dedov;George Nicolaou;Helena Jäderblom;Luis López Guerra;Pamballis;Pere Pastor Vilanova | 6. The applicant was born in 1949, he is a lawyer and lives in Nicosia. 7. The applicant was appointed as an IDC judge on 1 October 1997 and as its President on 6 December 2001. 8. By a letter dated 18 July 2005 the two main trade unions and the two corresponding employers’ federations submitted a complaint to the Supreme Court, alleging misconduct on the part of the applicant in the exercise of his judicial functions. The letter referred, in general, to complaints received by members of trade unions and employers’ federations who had carried out duties as lay members of the IDC, concerning the applicant’s conduct towards litigants, witnesses, lawyers and lay members of the court during proceedings. 9. The applicant was served with a written notice from the Supreme Court dated 1 September 2005, informing him of the allegations against him and noting that the Supreme Court had decided that it was justified to activate Rule 3 of the Procedural Rules concerning the exercise of the SCJ’s disciplinary authority (“the Procedural Rules”; see paragraph 41 below). The applicant was provided with a copy of the letter of complaint and was requested to send his comments within seven days. 10. By a letter dated 7 September 2005 the applicant submitted his comments to the Supreme Court with regard to the allegations against him. The applicant observed, inter alia, that the complaint was so general and vague that he was unable to identify the precise events on which it was based as he had presided over numerous proceedings. He also informed the Supreme Court that the authors of the letter had given a copy to the press and that it had been published in a newspaper on 21 July 2005. 11. On 16 September 2005 the Supreme Court decided, in accordance with Rules 4 and 5 of the Procedural Rules (see paragraph 41 below), to appoint an investigating judge to look into the allegations against the applicant. 12. On 19 September 2005 the Supreme Court appointed the then President of the District Court of Nicosia as investigating judge. 13. In a letter dated 5 December 2005 the investigating judge informed the applicant of his appointment. He also provided the applicant with statements he had taken from twenty-eight people during his investigation and invited the applicant to submit a supplementary statement, if he so wished, within ten days. 14. On 16 December 2005 the applicant made a lengthy supplementary statement to the investigating judge, providing his comments on the statements collected by the judge and referring to various proceedings in which the witnesses had been involved. He also noted that he did not view his comments as a supplementary statement as such, since it was only at that time that the complaint had become more precise, at least in part. Furthermore, he observed that the witness statements covered a period of six years, when he had sat in about three thousand cases. The statements could not therefore provide the full picture. He suggested that statements should be taken from a number of lay members of the court and provided the investigating judge with their names and telephone numbers. 15. On 21 December 2005, upon completion of the investigation, the investigating judge submitted a report to the Supreme Court summarising his investigation and the evidence collected. The report was accompanied by all the material he had collected, including the statements given by the witnesses and the applicant. The report made no recommendation. 16. By a letter dated 10 February 2006 the chief registrar of the Supreme Court informed the applicant that the court had decided that a disciplinary process was warranted. He provided the applicant with the charge sheet drawn up by the Supreme Court at a meeting it had held on 9 February 2006. This included two charges of misconduct, and details of the preparatory investigation by the investigating judge. The charges against the applicant were as follows: “First Charge Misconduct (Articles 153 § 7 (4) and 157 § 3 of the Constitution) Particulars While you exercised the duties of President of the Industrial Disputes Court you repeatedly displayed oppressive, disparaging, scornful and, more generally, insulting behaviour towards the lay members of the Court, both inside and outside the courtroom and, at the same time, in the course of proceedings you sometimes ignored them, sometimes did not allow them to put questions and sometimes did not allow them to ask for clarification on the matters at issue. Second Charge Misconduct (Articles 153 § 7 (4) and 157 § 3 of the Constitution) Particulars While you exercised the duties of President of the Industrial Disputes Court you repeatedly displayed oppressive, disparaging, scornful and, more generally, insulting and even humiliating behaviour towards lawyers and/or litigants and/or witnesses during the proceedings, including ironic comments at their expense and/or innuendos, with the result that, owing to the agitation and disruption caused to them, the entire proceedings were diverted from their proper course.” 17. A list of fifteen witnesses was attached to the charge sheet. 18. In his letter the chief registrar summoned the applicant to appear on 9 March 2006 before the SCJ (see paragraph 36 below) to answer the charges. He informed the applicant that the proceedings would not be held in public unless he so wished and that, pending the proceedings, he would have to refrain from carrying out his duties. 19. On 9 March 2006, before the applicant answered the charges against him, his lawyer raised several preliminary objections. In particular, he argued that the investigation had been incomplete as statements had not been taken from the people indicated by the applicant. Furthermore, he argued that the charge sheet was incomplete, defective and vague; it did not give sufficient information to the applicant about the offences in relation to the actual content of the two charges he was facing. 20. The SCJ ruled the same day that the charge sheet, taken together with the fifteen statements, provided sufficient information to the applicant about the facts on which the charges had been based. In that regard, it noted that the applicant had commented on all the details referred to in the statements in a lengthy statement. The SCJ also held that the investigation had been adequate and had provided grounds for bringing charges. 21. The applicant then pleaded not guilty to the charges. 22. A hearing was set for 29 March 2006. The applicant’s lawyer agreed that the proceedings would not be held in public. 23. Hearings commenced on the scheduled date. The SCJ set out the procedure to be followed: every witness would read out the statement he or she had given to the investigating officer and would then be cross-examined by the applicant’s lawyer. Following a request by the applicant’s lawyer, the SCJ also held on the same day that in view of the defence’s line of argument all the files of the proceedings in which the witnesses had sat as members of the IDC, from the applicant’s appointment as president of the IDC onwards, should be brought before it. The hearing was scheduled to continue on 31 March 2006. 24. Following a request by the applicant’s lawyer, leave was given by the SCJ on the latter date for the applicant to have full access to the IDC registry’s archives in order to enable him to examine and collect any elements that could help his defence. 25. The hearings continued, with around seven more sessions being held. Files of the proceedings over which the applicant had presided and in which the witnesses had been involved were admitted as exhibits. They were filed in separate bundles by reference to the particular witness and were recorded in the list of exhibits. 26. During the proceedings it was clarified that the charge sheet was limited to the period subsequent to the applicant’s appointment as President of the IDC. Further statements that related to pending proceedings and complaints that had previously been dealt with by the Supreme Court were removed from the charge sheet. Ten out of the fifteen witnesses listed on the charge sheet ultimately testified. They comprised six lay members, two lawyers and two people who had been witnesses in proceedings over which the applicant had presided. The witnesses read out and confirmed the contents of their statements. They were then cross-examined by the applicant’s lawyer. 27. In addition, at the suggestion of the applicant’s lawyer, the court also summoned the IDC’s registrar. 28. After the conclusion of the witness statements and an address by the applicant’s lawyer, the SCJ found on 29 May 2006 that a prima facie case had been established against the applicant. It therefore called the applicant to put forward his defence. 29. The applicant took until 23 June 2006 to set out his defence case, testifying himself and calling thirty-six witnesses. They consisted of twenty-six lay members of the IDC, nine lawyers and a representative from the redundancy fund. The proceedings concluded with the applicant’s lawyer addressing the court. He raised the issue of the charge sheet again and also submitted that because the Supreme Court and the SCJ had the same composition, the same judges had examined the witness statements, had decided to refer the case to trial, formulated the charge sheet and overseen the proceedings. Those judges had also acted as prosecutors and had then tried the case. He argued that that was contrary to the rules of natural justice and the right to a fair trial. He stressed, however, that this had nothing to do with the judges as individuals. 30. In a decision of 19 September 2006 the SCJ found, by a majority of twelve to one (the President and eleven justices concurring), that on the basis of the evidence and all the material facts before it, the applicant’s alleged misconduct had been proved. The SCJ assessed the evidence given by the eleven witnesses and made specific reference to events transcribed in the records of court proceedings over which the applicant had presided and in which the witnesses had been involved. It referred to ten specific cases. After hearing the applicant, in accordance with Rule 26 (see paragraph 41 below), the SCJ removed him from office. 31. The relevant parts of the decision read as follows: “... Rule 13 secures for the judge against whom proceedings are brought all the rights provided for in Article 12 § 5 of the Constitution for persons who are charged with a criminal offence. That constitutional provision secures the well-known rights that an accused has in a criminal trial and are identical to those secured under Articles 6 §§ 2 and 3 of the European Convention on Human Rights, which was ratified by the House of Representatives by law in 1962 (Law 39/62). Furthermore, the provisions of Article 30 of our Constitution, which are the equivalent to those of Article 6 of the Convention, are also applicable. ... At no stage did the Supreme Council of Judicature function as a public prosecutor against Mr Kamenos. The President and Members of the Supreme Council of Judicature did not put a single question to the witnesses who were listed on the charge sheet, or to those summoned on behalf of Mr Kamenos, which might have been construed as cross-examination for the purpose of contesting the witnesses’ allegations. On the contrary, the President and Members of the Supreme Council of Judicature asked very few questions, and they were solely for the purpose of clarification; special reference will be made to some of those questions at the appropriate stage. Not a single question was put to Mr Kamenos. The Supreme Council of Judicature was not seeking to pursue a procedure of prosecution against Mr Kamenos in the form of a confrontation between prosecution and defence. For that reason, and despite having such powers under Rule 16, the relevant provision of the Constitution on the judicial process and the procedure to be followed in investigating disciplinary cases, it did not assign the duties of prosecutor to the judge-investigator or to any other judicial official. In that way, which was the declared intention of the Supreme Council of Judicature, more rights were secured for Mr Kamenos than those which he had under the aforementioned Articles of the Constitution and the Rule. That was precisely the aim of the procedure followed by the Supreme Council of Judicature, which essentially remained an audience for the witnesses’ statements. It follows that this is the appropriate moment to refer to the suggestion made by Mr Kamenos’s lawyer in his final address. Its subject relates directly and absolutely to what we have just said. The lawyer alleged that the Supreme Council of Judicature had functioned in a dual capacity, given that it had judged the case and simultaneously exercised the duties of prosecutor. Clarifying his position, he said that that is inferred from the fact that the President and Members of the Supreme Council of Judicature put questions to the witnesses. In our opinion, that suggestion is unfounded and unjustifiable. It is unfounded for the reasons which we explained above, and unjustifiable because it conflicts with what the lawyer said to us at the beginning of the proceedings, when he ... spoke in praise of the powers invested by the Constitution in the Supreme Council of Judicature, describing its work as difficult and important [in those instances] when it is called upon to decide whether a judge displayed misconduct and is obliged, again in accordance with the Constitution, to terminate the latter’s services in the event of conviction. In brief, Mr Efstathiou not only accepted but also praised as correct the competence, arising from the Constitution, of the Supreme Council of Judicature, which is made up of the full bench of the Members of the Supreme Court, the highest judicial authority in the State. ... [The applicant’s lawyer] asked many witnesses to express an opinion on the extent to which they considered that Mr Kamenos’s decisions were correct. Most of them, including the lawyers, gave the right reply, namely, that it was not for them to judge Mr Kamenos’s decisions. In the same way, the Supreme Council of Judicature is not judging the correctness of Mr Kamenos’s decisions. We do not have such competence. That belongs to the Supreme Court. The competence of the Supreme Council of Judicature is only to decide whether the charges of improper behaviour (misconduct) are proved, which [behaviour] in the case we are examining and according to the particulars of the charges, is continuous (κατά συρροή, διαρκής) and directly refers to the function of Mr Kamenos as the President of the Industrial Disputes Court. ... We previously stated that certain witnesses called by Mr Kamenos, evidently in an endeavour to tone down or explain what the witnesses listed on the charge sheet had testified to and who touched on Mr Kamenos’s behaviour in the course of the hearing, in essence confirmed what those witnesses had said. Several examples follow ... ... From the evidence that we have analysed above, we find that the charges have been proved. ... We wish to clarify that the purpose of this procedure is not to punish Mr Kamenos but to protect the public by adopting of a strict standard of judicial behaviour in order to preserve public confidence in the integrity, prestige and independence of the judicial system. We borrow and adopt the above principle from the decision (Investigation concerning Judge Bruce Van Voorhis, No. 165) given in February 2003 by the Commission of Judicial Performance of the State of California, in the United States of America, which concerned a procedure against a specific judge whose services were also terminated for misconduct, with facts and particulars similar to the case before us. In essence, we translate the principle which that Commission adopted and recorded on page 31 of the decision. The principle is based, as stated in the decision, on what was said by the Supreme Court of the State, that the purpose of the procedure was not to punish judges who have erred but to protect the judicial system and those who are subject to the formidable power exercised by judges. ... Evaluating the above with great care, caution and, we would say, anxiety, we are led to the conclusion that everything imputed to Mr Kamenos as stated in the two charges has been proved. In accordance with the relevant provisions of the Constitution, which are referred to in our decision, the proof of a charge of misconduct against a judge leads to the termination of his services.” 32. The dissenting judge found in his decision that the evidence was not sufficient to prove such a serious charge as misconduct. As regards the procedure, the judge noted, inter alia, that the Supreme Council of Judicature had asked the witnesses very few questions and that they had been for the purposes of clarification. Furthermore, with regard to the investigation and the object of the hearing, he observed: “A judicial official with the duties of prosecutor was not appointed, a possibility which is referred to in Rule 16, and we adopted the following approach: every witness read his statement to the investigating officer out loud and, immediately after, was cross-examined by Mr Kamenos’s lawyer. During the cross-examination or subsequently members of the Supreme Council of Judicature asked the witnesses a few questions for clarification purposes. This is also exactly what happened in the case of Mr Kamenos and the 36 witnesses called by him. ... Before referring to the evidence, it is useful if we outline the methodology which led to the taking of statements by the Investigating Officer. He did not himself take the initiative of collecting evidence in view of the accusation, as he explains in his report. The persons who signed the accusation did not have any personal knowledge of the circumstances and statements were taken from all those they ... named, and from others subsequently named by those who had been initially summoned. The investigation into the manner in which Mr Kamenos exercised his duties in general was therefore not systematic and that is also the reason for not taking statements from a number of other persons whom Mr Kamenos himself indicated. Besides, as we have seen, of the 28 statements which the Investigating Office took, only 15 were attached to the charge sheet, with a further reduction to 10 in the course of the hearing. They did not include statements which, as the Investigating Officer reported, not only expressed no complaints but stated that Mr Kamenos’s conduct had been irreproachable in all respects. Consequently, as is in any case self-evident, the object of the hearing is [to determine] whether, on the basis of the evidence of those ten witnesses, the charge has been substantiated as formulated. That is to say, whether, from each individual’s evidence and the correlation between them, to the extent possible, there arises conduct as cumulatively stated on the charge sheet, [and] in the case of the second charge “with the result that, owing to the agitation and disruption they were caused, the entire proceedings were diverted from their proper course”. This (was the wording), without any specification on the charge sheet of a definite, specific incident at a specific time, ... in relation to a specific person in the context of a specific case. The witnesses who remained on the charge sheet (whose statements I shall of course return to), as lay members of the court, or as lawyers or witnesses, did not submit a complaint there and then about what they considered to be objectionable conduct. ... Nor did the litigants in any specific case which could be related to the charge sheet make a complaint at the time, or appeal or employ any other legal means so that any objectionable conduct would be examined also from the aspect of its effect on the final outcome. That was what occurred in the cases of Athanasiou v. Reana Manuf. & Trade Co.Ltd and others (2001) 1 C.L.R. 1635, and Fanos N. Epiphaniou Ltd v. Melarta and others (2002) 1 C.L.R.654, in which the Supreme Court annulled decisions issued by the Industrial Disputes Tribunal under the presidency of Mr Kamenos, using strong language about the degree of his intervention in the proceedings and the appearance of partiality to which it could give rise. Of course, the charge sheet does not extend to those cases and does not concern the issue of interventions as such ... The core of the charge is the conduct attributed to Mr Kamenos at the expense of lay members of the court, lawyers, litigants and witnesses, and it is in the light of such considerations that I shall go on to examine the evidence adduced.” 33. The applicant continued to receive all the benefits that came with his post during the proceedings. It appears from a letter sent to him by the Treasury of the Republic of Cyprus that the applicant was considered as having retired from the date of his dismissal, 19 September 2006. He was paid a retirement lump sum and started receiving his pension. | 1 |
test | 001-168054 | ENG | RUS | COMMITTEE | 2,016 | CASE OF FILIMONOV AND FAZLUTDINOV v. RUSSIA | 4 | Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. They also argued that they did not have an effective domestic remedy to complain about the poor detention conditions. | 1 |
test | 001-170473 | ENG | AUT | ADMISSIBILITY | 2,016 | KAISER v. AUSTRIA | 4 | Inadmissible | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The applicant, Mr Richard Kaiser, is a German national who was born in 1964 and lives in Passau. He is represented before the Court by Mr Thomas Krankl, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is the father of E., A., and K., all of whom were born in wedlock in 2002, 2003 and 2005 respectively. 5. In 2006 the applicant was living with his wife and his children in Vienna. 6. At the request of the applicant’s minor children, represented by the Vienna Youth Welfare Service (Amt für Jugend und Familie), the Favoriten District Court (Bezirksgericht Favoriten) issued on 3 March 2006 an interim injunction for the duration of three months ordering the applicant to leave the joint household and the immediate surroundings of the family’s apartment, prohibiting him from returning to the apartment and contacting his wife and children, ordering him to avoid any meetings with them, and banning him from the children’s kindergarten. 7. Having heard the children’s mother, the applicant and a social worker, the Favoriten District Court noted that the children’s mother had alleged repeated sexual abuse by the applicant in respect of his eldest daughter (then four years old) and had testified that she had found skin abrasions on her daughter and that on one occasion her genital area had been smeared with blood. The applicant had denied any misconduct. The District Court also took into account the findings of an initial examination of the applicant’s eldest daughter by a clinical psychologist at a children’s hospital in Vienna. The girl had told the psychologist that she had suffered severe abuse at the hands of her father and had illustrated graphically what she had meant using anatomically correct puppets. The District Court found the girl’s mother’s testimony in respect of the events clear, credible and trustworthy. Overall, the seemingly substantiated allegations of extensive sexual abuse by the applicant indicated a real risk for the children’s wellbeing. The child had been taken into psychological care. Since the children and their mother had a need to be provided with housing, the court ordered the applicant to leave the joint apartment. The applicant did not lodge an appeal against this decision. Therefore, it became final. 8. On 30 March 2006 the applicant’s wife brought an action for divorce. 9. In May 2006 the children, at the time represented by their mother, lodged a request for the extension of the interim injunction; the Favoriten District Court, referring to the case file and to the pending criminal investigation in respect of the applicant (see paragraph 10 below), on 16 June 2006 granted that request and extended the interim injunction until the conclusion of the divorce proceedings. The applicant did not lodge an appeal against this decision. 10. In addition to the request for an interim injunction against the applicant, the Vienna Youth Welfare Service filed criminal information with the Vienna Public Prosecutors’ Office that was based on information supplied by the children’s mother and the report of the psychologist (see paragraph 7 above). The applicant was indicted on charges of sexual abuse of minors and abuse of a relationship of authority by the Vienna Public Prosecutor’s Office. The child, represented by a lawyer, took part in the criminal proceedings as a private party (Privatbeteiligter). On 18 October 2006 the Vienna Regional Criminal Court (Landesgericht für Strafsachen Wien) acquitted the applicant of the charges of sexual abuse of minors and abuse of a relationship of authority. It found that the witnesses heard in the course of the oral hearing had not been able to verify the suspicions. Furthermore, a psychological expert, ordered by the court to examine the applicant’s daughter, had stated that the child’s ability to recount past events or experiences was not sufficiently developed. Therefore, the criminal court declined to hear the child, even with the assistance of an expert. Because of the lack of evidence, the criminal court could not determine the relevant facts in regard to the accusations. The applicant was acquitted, having been given the benefit of doubt. This decision became final. 11. On 13 November 2006 the applicant, referring to his acquittal, lodged a request with the Favoriten District Court for the lifting of the interim injunction. However, on 18 April 2007, the Favoriten District Court refused that request. It found that a request under section 399 of the Enforcement Act to lift an interim injunction (see paragraph 33 below) could only be successful if the need to protect the legitimate interests of the person concerned had ended. This would be the case if the circumstances which had made the granting of the decision necessary had changed. However, the Regional Court had acquitted the applicant, pursuant to Article 259 § 3 of the Code of Criminal Procedure (Strafprozeßordnung, hereinafter, the CCP – see paragraph 22 below), only because the applicant’s guilt could not be established by a criminal court. However, the applicant had supported his request solely by referring to his acquittal and had not tried to demonstrate to the District Court why and how any risk to the children had ceased to exist. Therefore, there was no reason to lift the interim injunction. 12. The applicant lodged an appeal with the Vienna Regional Court for Civil Matters (Landesgericht für Zivilrechtssachen Wien - the “Regional Court”) on 7 May 2007. On 6 June 2007 the Regional Court dismissed the appeal, finding that – contrary to the applicant’s belief – his acquittal in the criminal proceedings was not in and of itself sufficient to substantiate the absence of the perceived risk that had served as the basis for the interim injunction. The Regional Court noted that an acquittal rendered by the criminal courts had no binding effect on the civil courts. In and of itself, the applicant’s reference to his acquittal was not sufficient to prove that the basis for believing that the applicant’s children were at risk had ceased to exist. The Regional Court upheld the District Court’s finding that the objective of the interim injunction – namely to secure the well-being of the children – had not become redundant, referring again to the fact that the acquittal had only resulted from the application of the in dubio pro reo principle, and that there still existed a suspicion of sexual abuse; this sufficed to justify the assumption that there continued to be a risk to the wellbeing of the child. Furthermore, the applicant had based his appeal only on the alleged binding force of the acquittal and had not submitted any facts why the risk would have ceased to exist by a change in the situation. 13. The applicant lodged an extraordinary appeal on points of law. On 23 October 2007 the Supreme Court (Oberster Gerichtshof) dismissed that appeal. Referring to its own jurisprudence it upheld the reasoning of the lower courts that whether an interim injunction could be lifted depended on whether the need to afford protection had ceased to exist in the light of a change in circumstances; a change concerning only the evidence provided could not be automatically understood as constituting such a reason. The question of whether the applicant’s acquittal had changed the level of risk in respect of the right of the child to physical safety had to be answered in the negative. The assessment of evidence in the criminal proceedings had to be considered as fresh evidence in the civil proceedings but did not as such constitute a reason for lifting the interim injunction. If, after assessing the fresh evidence, the suspicion of abuse persisted, the level of risk could not be deemed to have changed. 14. The Supreme Court also confirmed that an acquittal on criminal charges had no binding effect on the civil courts. As regards those of the applicant’s arguments that were based on Article 6 § 2 of the Convention, it referred to the European Court of Human Rights’ case-law, in particular the judgment in Rushiti v. Austria (no. 28389/95, 21 March 2000), but distinguished that case from the present one: in Rushiti, the Court had assumed a link between the criminal responsibility of the accused and the right to compensation for detention to such a degree that the decisions on the latter issue could be regarded as a consequence and, to some extent, the concomitant of the decision on the former (ibid., § 27). However, in the present case such a link was missing with regard to the civil jurisdiction because (i) the criminal proceedings concerned a public law claim, and (ii) the accused’s opponent was the State. The victim of the criminal act in question was not a party to the proceedings and in general, the criminal courts did not rule on victims’ claims for damages. A binding effect of an acquittal on civil courts would constitute a violation of the principle of equality of arms under Article 6 of the Convention in respect of the victim if he or she tried to lodge subsequently a claim for damages before the civil courts. The distinction between civil and criminal matters resulted from the different subjects dealt with. The binding effect of a conviction was justified by the fact that in such a case a criminal court had established the accused’s responsibility and guilt. However, in the case of an acquittal, the establishment of the facts remained open. To then prevent the victim from pursuing a possible civil claim would represent a violation of the victim’s fundamental rights. In the instant case, the acquittal could therefore only serve as an indication of a diminution of the risk for the children, but no more. 15. On 2 March 2009 the divorce proceedings were concluded with final effect. On 19 May 2009 the Favoriten District Court refused a request for the extension of the interim measure and lifted it. 16. In addition to his request for the interim injunction to be lifted, the applicant on 13 November 2006 lodged a request with the District Court of Vienna for regular contacts to be arranged between himself and his three children at the Youth Visiting Café; alternatively, he requested the provisional arrangement of a weekly visiting right, to be exercised at the parent-child-meeting point (Eltern-Kind-Treff) of the Vienna Family Association (Wiener Familienbund). 17. For the purpose of being able to assess the situation, the Favoriten District Court ordered a report from the Youth and Family Office on 4 January 2007. On 3 May 2007 – the Youth and Family Office having failed to deliver such a report – the court urged it to do so. 18. On 31 May 2007 the Vienna Youth Welfare Service submitted the report, stating in its conclusion that contact between the children and their father was very important, but that, in view of the problematic overall situation, the visits should take place in the protected environment of the Youth Visiting Café. The mother had initially opposed the idea of the applicant having contact with the children, but had then stated that she could agree to accompanied visits in a protected environment and in her presence. The applicant had referred to his acquittal and stated his desire to reestablish a relationship with his children. The social worker confirmed that the children were living in a safe and healthy environment with their mother, but also referred to the importance of a relationship between the children and their father. Regular contact every fortnight would offer the children a good opportunity to become re-acquainted with their father and was thus considered positively by the social worker. On 5 June 2007 the report of the Youth and Family Office arrived at the court and was subsequently served on the applicant. 19. In a hearing before the Favoriten District Court on 4 July 2007, the applicant and the children’s mother agreed on a preliminary settlement with the following provisions: preliminary sole custody for the three minor children was granted to the children’s mother. The applicant was granted the right to regular accompanied contact – normally every two weeks for two hours on the premises of the Vienna Family Association. The visits were also attended by the children’s mother and a social worker from the Association. Because of this agreement, the proceedings in respect of contact rights were suspended pending a final decision in the divorce proceedings. 20. On 9 February 2010 the applicant and his former wife agreed before the Favoriten District Court on the staying of the proceedings in respect of custody, contact rights and alimony (Ruhen des Verfahrens). The applicant informed the Court that since February 2010 he and his former wife had agreed amicably on arrangements for the applicant’s contact with his three children. The applicant, in the meantime, had moved to Germany and travelled to Vienna during the school holidays in order to see his children. 21. Under Article 47 § 1 of the CCP, a victim of a criminal offence could join criminal proceedings as a private party (Privatbeteiligter) only with regard to his or her civil claims. Such a private party was, inter alia, entitled to have access to the various case files from the pre-trial stage onwards, had to be summoned to the hearings, and could submit evidence to the Public Prosecutor. 22. Article 259 § 3 of the CCP provided as follows: “The accused shall be acquitted by judgment of the court: ... 3. where the court finds that the act that gave rise to the prosecution is not an offence under the law or that the alleged offence has not been made out or that it has not been established that the accused committed the act of which he is accused or that circumstances exist which deprive the act in question of its criminal character or that the continuation of the prosecution is ruled out on grounds other than those set out in paragraphs 1 and 2.” 23. In the event of an acquittal, a private party was not entitled to a remedy in criminal proceedings. Under Article 366 § 1 of the CCP the criminal court had to refer such a private party to the civil courts in respect of his or her claim for damages if the accused had been acquitted (Verweis auf den Zivilrechtsweg). 24. Article 268 of the Code of Civil Procedure (Zivilprozessordnung) provided that civil courts, when deciding a case which had previously been submitted to a criminal court, were bound by the facts established by a criminal court in the event that that court had found the accused guilty. This provision was found to be contrary to Article 6 of the European Convention on Human Rights by the Constitutional Court (decision of 12 October 1990, no. G73/89). The Constitutional Court stated that a criminal conviction to be binding on a civil court was arbitrary and therefore contrary to Article 6 of the Convention. Therefore, the Constitutional Court set aside the provision. 25. In its decision of 17 October 1995, no. 1 Ob 612/95, the Supreme Court found, after conducting a comprehensive analysis of the legal arguments raised in national and international academic debate, that, even in the absence of an explicit provision stipulating the binding effect of criminal convictions, a convicted person must accept his conviction by a criminal court as an established fact and shall not be entitled to argue before a civil court that he did not commit the offence of which he was convicted. Therefore, a conviction by a criminal court should have a binding effect with regard to the convicted person, so that nobody might argue that the facts differed from the ones already established and which had been the basis for that criminal conviction. 26. In its decision of 20 November 1996, no. 7 Ob 2309/96a, the Supreme Court confirmed the principles outlined in its decision of 17 October 1995 and elaborated on the question of whether civil courts should be bound by the findings of a criminal court when proceedings heard by that criminal court had ended with an acquittal. It found that because of the weak position the CCP granted to a private party in criminal proceedings, it would violate the victim’s rights under Article 6 of the Convention if the outcome of criminal proceedings were to have a binding effect on civil law proceedings (that is to say if civil courts were to be bound by the findings of a criminal court). For example, a private party had no remedy against the acquittal of an accused. Moreover, under Article 366 of the CCP (see paragraph 23 above), the criminal court had to refer a private party to the civil courts in respect of his or her claim for damages if the accused was not convicted. This provision would be meaningless if the victim of an offence were to be referred to the civil courts in respect of his claim for damages but had to accept the finality of the acquittal in the subsequent civil proceedings. Therefore, an acquittal in criminal proceedings could have no binding effect in civil law proceedings dealing with the same circumstances. 27. In the following decisions, the Supreme Court further developed its case-law on this question and found that neither the ending of criminal proceedings by preliminary settlement (Diversion, decision of 23 September 2004, no. 2 Ob 186/04y) nor by final closure of the case by the Public Prosecutor (Verfahrenseinstellung, 9 September 1999, no. 8 ObA 218/99p) had a binding effect regarding the facts of the case on civil law proceedings and that the civil courts had to establish anew all the facts of the case. 28. Interim injunctions for the purpose of the prevention of violence within the family were a civil law matter under Austrian law, as laid down in the Enforcement Act (Exekutionsordnung). 29. Since provisional legal protection had to be provided without delay, the prerequisites for ordering an injunction needed only to be certified (bescheinigen), which meant to show predominant probability but they did not need to be proved beyond reasonable doubt (beweisen). The degree of plausibility of the circumstances supporting a request for an injunction was thus less strict than in the criminal proceedings. It was sufficient for the party requesting the injunction to submit details of the circumstances from which the existence of the alleged risk could reasonably be assumed (section 389 of the Enforcement Act, in connection with Article 274 of the Code of Civil Procedure). Under section 78 of the Enforcement Act certain parts of the provisions of the Code of Civil Procedure (such as the provisions dealing with the parties, the oral hearing or the finding of facts) were applicable if the Enforcement Act did not provide otherwise. Persons affected by an interim injunction had the right to lodge an appeal (Rekurs, see Article 514 of the Code of Civil Procedure). 30. Section 382b § 1 of the Enforcement Act, as in force at the relevant time, provided as follows: “The court is required to act upon a request [lodged] by a near relative (naher Angehöriger) of a person who launches or threatens to launch a physical attack or displays conduct severely affecting the psychological health of the near relative, thus making further cohabitation unbearable for the relative. In such a case, the court must 1. order that person to leave the common flat and its immediate surroundings, and 2. prevent that person from returning to the flat and its immediate surroundings, if the flat serves the near relative’s urgent need of accommodation.” 31. Under paragraph 2 of this provision, a court could also prohibit such a person from staying in clearly defined areas and order him or her to avoid meeting and coming into contact with the near relative unless this would have run counter to the serious interests of the person. 32. Under paragraph 4 of this provision, such an interim injunction was not limited to proceedings for divorce or the annulment of a marriage; however, in respect of proceedings that did not concern divorce or annulment such an interim injunction could not exceed a total duration of three months. The institution of such divorce proceedings or proceedings for the annulment of a marriage was a prerequisite for an extension beyond the above-mentioned three-month limit. 33. Section 399 of the Enforcement Act listed the following conditions for the amendment or lifting of an interim injunction: “1. if the order exceeds the scope that is necessary to secure the interests of the person in whose favour the order was granted; 34. Given that there were remedies (Widerspruch, Rekurs) by which to contest a decision within the proceedings for granting an interim injunction, the amendment or lifting of an interim or “final” injunction under section 399 of the Enforcement Act could not be requested on the basis of a claim that the interim injunction had been issued unlawfully (decisions of the Supreme Court of 1 June 2010, no. 1 Ob 61/10t, and of 20 October 2011, no. 2 Ob 81/11t). Moreover, because the aim of an interim injunction was not to examine a past but to pre-empt a future risk, a review ex post facto of the proceedings in respect of the granting of an interim injunction was not possible (Supreme Court’s decisions of 10 May 1995, no. 9 Ob 1577/94, and of 29 October 2009, no. 7 Ob 50/09t). | 0 |
test | 001-162831 | ENG | HUN | GRANDCHAMBER | 2,016 | CASE OF KARÁCSONY AND OTHERS v. HUNGARY | 1 | Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction);Damage - award (Article 41 - Pecuniary damage;Just satisfaction) | András Sajó;Angelika Nußberger;Branko Lubarda;Egidijus Kūris;Erik Møse;Guido Raimondi;Helena Jäderblom;Ján Šikuta;Johannes Silvis;Jon Fridrik Kjølbro;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Robert Spano;Vincent A. De Gaetano;Yonko Grozev;Ksenija Turković | 10. The applicants, Mr Gergely Karácsony, Mr Péter Szilágyi, Mr Dávid Dorosz and Ms Rebeka Katalin Szabó, were born in 1975, 1981, 1985 and 1977 respectively and live in Budapest. 11. At the material time the applicants were members of parliament and of the opposition party Párbeszéd Magyarországért (Dialogue for Hungary). Mr Szilágyi was also one of the notaries to Parliament. 12. At a plenary session on 30 April 2013, during a pre-agenda speech, an opposition member of parliament from the Hungarian Socialist Party criticised the Government and accused it of corruption with regard to, inter alia, the reorganisation of the tobacco market. Mr Zoltán Cséfalvay, the Secretary of State for the National Economy, was replying on behalf of the Government when the applicants Mr Karácsony and Mr Szilágyi carried into the centre of the Chamber a large placard displaying the words “FIDESZ [the party in Government] You steal, you cheat, and you lie.” Subsequently, they placed it next to the Secretary of State’s seat. 13. The minutes of the session read as follows: “Dr Zoltán Cséfalvay, the Secretary of State for the National Economy: ... Tell them that the increase of commodity wages particularly affects those with a minimum income, since the minimum income has been increased by 5.4 %, which is impossible to keep up with inflation lower than 3.5%. And tell them also ... (Gergely Karácsony and Péter Szilágyi show a placard displaying the words “FIDESZ You steal, you cheat, and you lie.". – Interventions from the government MPs: - Rules of procedure! Doctor! The Speaker rings the bell.) Speaker: Honourable Parliament! (Constant interventions from the government MPs. Gergely Karácsony and Péter Szilágyi place the placard next to the speaker’s pulpit.) I request Mr Gergely Karácsony to remove the placard in the same way as they brought it in. (Gergely Karácsony and Péter Szilágyi leave the placard next to the speaker’s pulpit. – Constant interventions from the government MPs. – The Speaker rings the bell.) I request the ushers to remove the placard. (Interventions from the government MPs, amongst others: That’s all you can do.). I request the ushers to remove the placard. (The placard is removed.) Thank you very much. Please continue Mr Secretary of State! (Interventions from the government MPs: How could they get that in? – [The Speaker] rings the bell.)” 14. On 6 May 2013 the Speaker presented a proposal to fine Mr Karácsony 50,000 Hungarian forints ((HUF); equivalent to EUR 170) and Mr Szilágyi HUF 185,520 (EUR 600) for their conduct, as recorded in the minutes and considered to be gravely offensive to parliamentary order, in application of sections 49(4) and 49(7) of the Parliament Act. The Speaker proposed that as regards Mr Szilágyi the maximum fine (a third of his monthly remuneration) be applied, since he had been elected an official of Parliament and was not just an ordinary MP. No other reasons were given in the proposal. A decision approving the Speaker’s proposal was adopted by the plenary on 13 May 2013, without debate. 15. On 21 May 2013 during the final vote on Bill no. T/10881 amending certain tobacco-related Acts the applicants Mr Dorosz and Ms Szabó carried into the centre of the Chamber and displayed there a large banner displaying the words “Here Operates the National Tobacco Mafia”. 16. The minutes of the session read as follows: “Speaker: ... I ask the Honourable Parliament whether it adopts Bill T/10881 in accordance with the consolidated proposal as amended just now. Please vote! (Voting) I proclaim the decision: Parliament has (Mr Dávid Dorosz and Ms Rebeka Szabó display a banner with the words “Here Operates the National Tobacco Mafia”) adopted the Bill with 222 votes in favour, 81 against and 1 abstention. (Applause from FIDESZ MPs). I call the attention of the two Members of Parliament to the fact that their conduct constitutes a grave disruption of the plenary proceedings. I inform you accordingly that the Rules of Procedure and section 49(4) of the Parliament Act (continuous applause from members of the Hungarian Socialist Party) sanction such conduct. (Dr István Józsa. – We want legislation against the Mafia!) I ask my colleagues to untie and remove the banner. (Dávid Dorosz and Rebeka Szabó do not hand over the banner to the usher. – Short break. – Loud noise from the opposition MPs.) Please help the lady and gentleman, Members of Parliament, to remove the draperies. (Dávid Dorosz and Rebeka Szabó leave the session). Thank you very much.” 17. On 24 May 2013 the Speaker submitted a proposal to fine Mr Dorosz and Ms Szabó HUF 70,000 (EUR 240) each for their conduct, as recorded in the minutes and considered to be gravely offensive to parliamentary order, in application of sections 49(4) and 49(7) of the Parliament Act. The proposal stated that an increased fine was necessary since similar seriously disruptive conduct had occurred before. No other reasons were specified in the proposal. The plenary adopted the proposal on 27 May 2013 without debate. 18. The applicants, Ms Bernadett Szél, Ms Ágnes Osztolykán and Ms Szilvia Lengyel, were born in 1977, 1974 and 1971 and live in Budakeszi, Budapest and Gödöllő respectively. 19. At the material time the applicants were members of parliament and of the opposition party LMP (Politics Can Be Different). 20. On 21 June 2013 Parliament held a final vote on a new law, Bill no. T/7979 on the Transfer of Agricultural and Forestry Land. The legislative proposal was quite controversial and generated heated reactions among opposition members. In protest during the final vote on the bill, Ms Lengyel placed a small, golden wheelbarrow filled with soil on the table in front of the Prime Minister, while Ms Szél and Ms Osztolykán unfurled a banner displaying the words “Land distribution instead of land robbery!” in front of the Speaker’s pulpit; meanwhile, Ms Lengyel used a megaphone to speak. She had previously delivered two speeches during the detailed debate and one speech during the final debate on the bill, filing three amending motions, and introduced two amending proposals just before the final vote. 21. The minutes of the session read as follows: “Speaker: The next point on the agenda is the vote on the amendments submitted prior to the final vote on the Transfer of Agricultural and Forestry Land Bill and the final vote. Members of Parliament have received the Bill under number T/7979 and the consolidated text of the Bill under number T/9797/2610. First we shall vote on the amendments. Their adoption requires a qualified majority. (continuous disruption of the session) ... Speaker: Because the members of Jobbik [opposition party] do not allow me to take my position at the Speaker’s pulpit, I will continue presiding over the session from here. (Strong applause from the ruling parliamentary group). Because members of Jobbik are not allowing the left-wing, opposition party member and notary to sit at [the Speaker’s pulpit] during the vote by roll call and conduct the vote and proclaim the results (Continuous noise). I request Members of Parliament to take their seats and listen to me! I request Parliament to confirm that since the members of Jobbik are not allowing the vote by roll call to take place, we shall cast our vote electronically. (Strong applause from the ruling parliamentary group. Interventions from the same side: Hurray!). Honourable Members of Parliament! I request all of you who agree, given the unusual circumstances, to cast your votes by electronic voting instead of vote by roll call. (Members of the parliamentary group Jobbik occupy the Speaker’s seat, chanting “Traitors, traitors” for several minutes. Szilvia Lengyel places a small golden wheelbarrow filled with soil on the table in front of the Prime Minister. Dr Bernadett Szél and Ágnes Osztolykán [the applicants] unfurl a banner containing the words ‘Land distribution instead of land robbery!’ in front of the Speaker’s pulpit). I request technical assistance to enable the vote to take place. (Short break. Members of the Jobbik group keep chanting: ‘Traitors’. Szilvia Lengyel uses a megaphone to speak. Dr. András Schiffer applauds. Intervention from the FIDESZ group: - Where are the parliamentary guards? Laughter.) Ms Member of Parliament! I have to warn you as well that your methods are unacceptable under the rules of procedure. I therefore request you to terminate your speech using the megaphone. Again, I request technical assistance to overcome this problem so that the Members of Parliament can exercise their right to vote, since I am hindered in accessing my own voting card. ...” 22. On 25 June 2013 the Speaker presented a proposal to fine Ms Szél and Ms Lengyel HUF 131,400 (EUR 430) each and Ms Osztolykán HUF 154,000 (EUR 510) for their conduct, as recorded in the minutes and considered to be gravely offensive to parliamentary order, in application of sections 49(4) and 49(7) of the Parliament Act. 23. The Speaker proposed that the maximum fine be applied, given the extraordinary situation that had developed during the voting process and that the MPs had engaged in conduct gravely offensive to parliamentary order by displaying their banner and using a megaphone. A decision approving the proposal of the Speaker was adopted by the plenary on 26 June 2013, without debate. | 1 |
test | 001-172854 | ENG | GRC | COMMITTEE | 2,017 | CASE OF IATROPOULOS AND OTHERS v. GREECE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) | Armen Harutyunyan;Ledi Bianku | 4. The applicants were all detained in the Transfers Department of Thessaloniki (Τμήμα Μεταγωγών); they were either in pre-trial detention or serving a prison sentence. Specifically, the first applicant was detained in the Transfers Department of Thessaloniki from 24 January 2013 until 29 April 2013; the second applicant was detained in the Transfers Department of Thessaloniki from 27 November 2012 until 1 March 2013; and the third applicant was detained in the Transfers Department of Thessaloniki from 29 January 2013 until 11 March 2013. 5. The applicants alleged that the Transfers Department of Thessaloniki had been an entirely inappropriate place in which to spend long periods of detention, as they had done. The cells in which they had been held had measured 40 sq. m and had been designed to accommodate nine detainees. However, the number of detainees accommodated had varied from twelve to twenty-two. 6. Cells had been insufficiently lit and ventilated, which, in addition to overcrowding and the filthiness of the premises, had affected inmates’ health. The blankets that had been provided had never been washed. The applicants furthermore stressed that there had been insufficient heating and hot water and that they had never been provided with soap. 7. Detainees had been confined to their cells and had not been allowed to spend time outside, which had affected their psychological health. Recreational activities had not been offered and cells had not been equipped with televisions or radio. 8. The meals that had been provided to detainees had cost 5.87 euros (EUR) per day and had not sufficed to cover their daily dietary needs, either in terms of quantity or quality. 9. On 22 February 2013 the applicants lodged a complaint with the public prosecutor, complaining of the conditions of their detention but received no reply. 10. The Government firstly argued that the applicants had complained in a general way, without providing specific references concerning the actual conditions of their detention. 11. As regards the premises in which the applicants had been detained, the Government submitted that the Transfers Department of Thessaloniki had been comprised of six cells on the ground floor which had measured 59 sq. m each and had been designed to accommodate ten male detainees. There had been another two cells which had accommodated female detainees. All cells had had in-cell sanitary facilities and had had sufficient light and received sufficient ventilation through large windows. 12. Cells had accommodated five to fifteen detainees. Most of the detainees had been held in the facility for very short periods of time, as the Transfers Department had been used when transferring detainees from one facility to another or to the court room. As a result, when the number of detainees had exceeded the number that the cells had been designed to accommodate, that had only remained the case until transfers had been completed. In any event, the space available for each inmate had never been less than 4 sq. m. 13. An external contractor had cleaned the facilities every day and had disinfected the detention areas once a week. Hot water and heating had been available throughout the premises and all sheets and blankets had been regularly cleaned and replaced in the event that they had become worn out. 14. Food had been provided to detainees by a private catering company and had been of good quality and quantity; the Government submitted examples of the various meals offered, arguing that these had covered all dietary needs and preferences. 15. The Government pointed out that the applicants had not referred to or adduced any evidence that they had not received any medical treatment that they had needed. On the contrary, according to the police station’s records, the second applicant had been transferred to Papanikolaou Hospital on 29 December 2013 for a medical check-up. | 1 |
test | 001-184815 | ENG | GEO | CHAMBER | 2,018 | CASE OF BARTAIA v. GEORGIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms) | André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1938 and lives in Tbilisi. 6. On 10 September 2003 the applicant was dismissed from a printing company. He brought proceedings against his employer. 7. At the preparatory hearing of 26 December 2003 the DidubeChugureti District Court in Tbilisi (“the District Court”) scheduled the main hearing for 3.30 p.m. on 28 January 2004. The preparatory hearing was attended both by the applicant and his lawyer. On 22 January 2004 the applicant’s lawyer wrote to the court informing that he was due to attend a hearing for an appeal on points of law before the Supreme Court of Georgia at 3 p.m. on 28 January 2004 and therefore could not be present. He requested that the hearing be adjourned. No reply followed. 8. The District Court held the hearing on 28 January 2004 as planned. The applicant appeared and submitted that, as he was not a lawyer, he would be unable to argue his case in the absence of his representative. He requested that the hearing be adjourned so that he could be represented by his lawyer. Counsel for the opposing party objected to the request and asked the first-instance court to issue a default judgment against the applicant. The record of the hearing shows that the judge warned the applicant that, if he refused to take any further part, “the court would give a decision in absentia”. The applicant, however, repeated that he would be unable to present his case without his lawyer. 9. According to the record of the hearing, the District Court did not consider the applicant’s request for an adjournment. It ruled that his refusal to participate in the hearing equated to a failure to appear in court within the meaning of Article 232 of the Code of Civil Procedure (“the CCP”, see paragraph 20 below). In view of the above, and concluding that the applicant had been duly summoned to the hearing in accordance with Articles 70 to 73 of the CCP, the judge issued, in accordance with Article 229 § 1 of the CCP (see paragraph 20 below), a default judgment rejecting the applicant’s action without examining it or giving any reasons. 10. The decision stated in its operative part that an application to set aside the judgment could be made to the same court within ten days. 11. The applicant’s lawyer filed an application to set aside the judgment, enclosing a letter from the Supreme Court dated 5 February 2004 confirming that he had participated in the hearing of an appeal on points of law at 3 p.m. on 28 January 2004. He argued that his involvement in the examination of another case was a “valid reason” for his absence (see Articles 233 and 241 of the CCP as cited in paragraph 20 below). 12. On 19 March 2004 the same District Court judge confirmed his own decision of 28 January 2004. He found that the applicant had been summoned to the hearing in accordance with the rules set out in Articles 70 to 78 of the CCP, and pointed out that there was no legal requirement to also summon a party’s lawyer. When he had appeared before the court, the applicant had stated that he objected to the examination of the case without his lawyer present and had refused to take part in the hearing. As conduct of that sort equated to a failure to appear under Article 232 of the CCP and none of the circumstances provided for by Article 233 of the CCP had been established, the judge decided that Article 241 of the CCP should not be applied to set aside the default judgment. 13. The applicant appealed against the decision of 19 March 2004. On 16 July 2004 the Tbilisi Regional Court (“the Regional Court”) found that, in breach of Article 72(z) of the CCP, the applicant and his lawyer had not been properly warned of the consequences of not appearing before the court. Moreover, at the hearing on 28 January 2004 the District Court had not properly explained to the applicant what a default judgment would mean for him. The Regional Court considered that, as the applicant was not a lawyer, he could not have known that a decision in absentia would necessarily be to his detriment. Therefore, as the caution provided for in Articles 70 to 78 had not been issued in the present case, the Regional Court held that there were grounds, under Articles 233 and 241 of the CCP, for setting aside the decision of 19 March 2004. The applicant’s appeal was thus remitted to the District Court for re-examination. 14. The applicant’s former employer lodged an appeal on points of law against the appeal judgment. 15. On 2 March 2005 the Supreme Court of Georgia found that, contrary to the Regional Court’s assertion, the applicant had been informed in the hearing notice of the consequences of a failure to appear. There had therefore been no violation of Article 72(z) of the CCP. The Supreme Court also found that, according to the record of the hearing of 28 January 2004, the judge had warned the applicant that “in the event of a refusal to take part in the hearing, a decision [would] be given in absentia”. The applicant had therefore been sufficiently informed of the consequences of his conduct. Lastly, the Supreme Court pointed out that a court could give a decision in absentia if a lawyer or a party failed to appear at a hearing, on condition that the party had been summoned in accordance with the rules set out in Articles 70 to 78 of the CCP. Consequently, the Supreme Court set aside the Regional Court’s judgment of 16 July 2004 and remitted the case. 16. On 10 May 2005 the Regional Court followed the Supreme Court’s reasoning and added that the applicant’s lawyer’s involvement in another hearing was not a “valid reason” for setting aside the decision in absentia, given that Article 232 of the CCP did not specify on what grounds a party could refuse to take part in a hearing. According to the Regional Court, this meant that any refusal to take part in the hearing was unjustified. It therefore upheld the decision of 19 March 2004. 17. An appeal on points of law by the applicant was dismissed on 16 September 2005. The Supreme Court ruled that Article 241 contained an exhaustive list of the grounds on which a default judgment could be set aside. It further concluded, in contrast with the finding of the Regional Court on 16 July 2004, that the applicant had been duly informed of the consequences of his failure to appear at the hearing. Thus, this argument could not have served as a valid basis for a re-examination of the case in accordance with Article 241 of the CCP. 18. Nor did the applicant’s refusal to participate in a trial for whatever reason, according to the Supreme Court, merit a re-examination of the case. It emphasised in this connection that the refusal to participate equated to a failure to appear in terms of its legal consequences. 19. No appeal lay against the above decision of the Supreme Court. | 1 |
test | 001-175229 | ENG | BIH | ADMISSIBILITY | 2,017 | BOŠNJAK v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 1. The applicant, Mr Ferenc Bošnjak, is a dual Serbian and Australian national who was born in 1952 and lives in Melbourne, Australia. He was represented before the Court by Mr J. Remenović. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent at the time, Ms M. Mijić. 3. The Serbian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right. 4. The applicant was an officer of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“SFRY”). The present case concerns his attempt to regain possession of a flat he had bought in Sarajevo before the 1992-95 war. 5. The detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia and Herzegovina is provided in Đokić v. Bosnia and Herzegovina (no. 6518/04, §§ 5-17, 27 May 2010), and Mago and Others v. Bosnia and Herzegovina (nos. 12959/05 et al., §§ 5-8, 3 May 2012). 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In May 1983 the applicant was granted the right to occupy a military flat in Sarajevo. 8. On 10 February 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 211,415 Yugoslav dinars (approximately 2,510 German marks at the time). 9. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 1997. 10. On 22 August 1996 the relevant housing authority of the VJ forces rejected a request submitted by the applicant to be granted a tenancy right in respect of a military flat in Serbia. 11. On 10 March 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat in question to M.A., a member of the Army of the Republic of Bosnia and Herzegovina. 12. In 1998 the applicant applied to the competent administrative authority in the Sarajevo Canton for the restitution of his flat. On 11 March 2003 his application was rejected under section 3a of the Restitution of Flats Act 1998. On 20 November 2003 the competent Ministry of the Sarajevo Canton upheld that decision. 13. On 28 January 2003 the restitution commission set up by Annex 7 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (“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. 14. On an unspecified date the applicant lodged an application with the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the Dayton Peace Agreement). He relied on Articles 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. 15. On 6 July 2005 the Human Rights Commission (which had succeeded the Human Rights Chamber in 2004) found a violation of Article 6 of the Convention on account of the length of the restitution proceedings and awarded the applicant 1,000 convertible marks (BAM; approximately 500 euros (EUR)) for non-pecuniary damage in this connection. As regards the complaint under Article 1 of Protocol No. 1, the Human Rights Commission held that the situation complained of, that is, the applicant’s inability to regain possession of the flat and to register his title to it, undoubtedly amounted to a continuing interference with the peaceful enjoyment of his “possessions”. Assessing the proportionality of the interference, the Human Rights Commission held that the applicant’s continued service in the VJ forces after the 1992-95 war demonstrated his disloyalty to Bosnia and Herzegovina. Taking into consideration also the serious shortage of housing units and the compensation to which the applicant was entitled, the Human Rights Commission concluded that the interference was justified. It therefore found no violation of Article 1 of Protocol No. 1 to the Convention and considered it to be unnecessary to examine the discrimination and Article 8 complaints. However, it ordered the government of the Federation of Bosnia and Herzegovina to secure the applicant’s right to compensation for his flat under section 39e of the Privatisation of Flats Act 1997 without further delay and at the latest within three months of the delivery of that decision. 16. On 19 April 2007 the applicant received BAM 21,868.51 (approximately EUR 11,214.62) in compensation for his flat, as ordered by the Human Rights Commission. 17. On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void under legislation transferring the resources of the former SFRY to the Republic of Bosnia and Herzegovina (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 (“OG FBH”) 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, OG FBH 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. 18. Nevertheless, two categories of buyers are not entitled to repossess their flats and to register their title to them (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. However, they are entitled to compensation under section 39e of the Privatisation of Flats Act 1997. The compensation was initially calculated on the basis of approximately EUR 300 per square metre, adjusted in line with the age of the flat, with depreciation set at 1% of its value per year. On 11 July 2006 section 39e of the Privatisation of Flats Act 1997 was amended so that those who could not repossess their flats were entitled only to a refund of the amount paid for the flats in 1991/92, plus interest at the rate applicable to overnight deposits. 19. On 30 March 2012, following the Court’s judgment in the case of Đokić v. Bosnia and Herzegovina, cited above, the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) declared that section 39e as amended in July 2006 was unconstitutional and ordered the Federation of Bosnia and Herzegovina to amend it (decision no. U 15/11). The Constitutional Court stated, in particular: “The Constitutional Court cannot determine what the compensation [for military flats] should be. That question is within the jurisdiction of the Parliament of the Federation of Bosnia and Herzegovina, which in its role of a legislative body will determine the policy concerning this matter. However, the Constitutional Court believes that in determining this matter the legislator should take into account the circumstances in which the impugned flats were purchased, the economic situation in Bosnia and Herzegovina and the fact that Article 1 of Protocol No. 1 of the European Convention does not guarantee a right to full compensation in all circumstances.” 20. In 2011 and 2013 the Federation of Bosnia and Herzegovina adopted action plans in response to the Court’s judgments in the cases of Đokić and Mago and Others (both cited above) with a view to identifying similar cases and introducing an adequate compensation scheme. It was established that around 800 individuals were in the same situation as the applicants in those cases (out of which 224 had purchased their flats). It was further estimated that around EUR 6 million should be secured to pay the compensation for their pre-war homes. 21. In March 2016 the Government of the Federation of Bosnia and Herzegovina prepared draft amendments to section 39e of the Privatisation of Flats Act 1997. The amendments provide that the amount actually paid for the flats in 1991/92, plus interest at the rate applicable to overnight deposits, will be refunded to those who acquired a tenancy right or another equivalent right to a military flat in one of the successor States of the SFRY. Those who did not acquire such rights, irrespective of whether they purchased or had an occupancy right in respect of the flats, will be entitled to compensation calculated at a rate of approximately EUR 300 per square metre, adjusted in line with the age of the flat, with depreciation set at 1% of its value per year. As explained above, the same method was used before the July 2006 legislative amendments (see paragraph 18 above). The eligible beneficiaries would be entitled to apply for compensation within 180 days of the adoption of the amendments. The compensation would be payable in two equal annual instalments. | 0 |
test | 001-180281 | ENG | IRL | COMMITTEE | 2,018 | CASE OF HEALY v. IRELAND | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time) | Nona Tsotsoria;Síofra O’Leary | 4. The applicant was born in 1946 and lives in Cork. 5. She has been receiving treatment for a pituitary brain tumour since 1982. In that year, she underwent surgery to remove as much of the tumour as possible. In the following years she received a variety of treatments for her condition. In 1995 she became the patient of Dr B, a consultant endocrinologist. He referred her for an MRI scan of the tumour, performed that same year, and monitored her condition in the following years. In August 2000, at the request of Dr B, the applicant underwent another MRI scan. This indicated that there had in fact been no significant change since 1995, but the tumour remained large. The applicant also underwent two types of test to determine her level of growth hormone. 6. Dr B received the result of the first test on 5 September 2000. He spoke by phone with the applicant, telling her that the tumour was very unsatisfactory. Prior to that conversation, the applicant was under the belief that the operation in 1982 had removed almost the entire tumour. She therefore understood the information given to her by Dr B about the tumour to mean that it was growing rapidly, gravely endangering her health. 7. The applicant was prescribed a newly-available drug to treat her condition, to be injected by her general practitioner on a monthly basis from September 2000. As the drug led to severe gastrointestinal side effects within a short time, Dr B reduced the dosage by half. It appears there were no side effects following the injections of October and November 2000. At the end of the year the applicant was unwell, and was hospitalised in early January 2001 suffering from vomiting, diarrhoea, severe exhaustion, headaches, cramps and muscular spasms in her arms and legs. A blood test indicated that she was also severely hypothyroid. It was later established that this was a side-effect of the drug, not known at the time. 8. The applicant had further discussions with Dr B about her condition and treatment. Dr B proposed to defer the next injection until the following month. The applicant received two more injections, in February and March 2001. From February 2001 she became the patient of another endocrinologist. 9. In May 2004 the applicant commenced civil proceedings in the High Court against Dr B and the hospital. Her case in negligence was that Dr B had failed in his duty of care towards her in the prescribing of the drug and the monitoring of its administration to her. She further argued that her consent to the treatment was vitiated for lack of sufficient information, or for misinformation, about her condition and the appropriateness of the medication proposed to her. 10. The applicant’s statement of claim was served on the defendants in October 2004. Dr B entered his defence in February 2005, seeking further and better particulars from the applicant, which the applicant’s solicitor provided in June 2005. The hospital entered its defence in June 2005, and also sought further and better particulars. 11. According to the Government, between February 2005 and September 2008 eleven motions seeking various forms of interim relief were brought before the High Court and decided in relation to the case. 12. In October 2009, the case was included in a procedure before a judge of the High Court known as a “positive callover”. The purpose of this was to assign hearing dates to cases that had already been waiting for a considerable period of time. A hearing date in April 2010 was set for the case. 13. In January 2010 the applicant’s solicitor replied to the request for further and better particulars made by the second defendant in June 2005. The hearing commenced on 13 April 2010 and took place over twelve days. Two expert witnesses appeared for the applicant and two for the defence. The hearing concluded on 7 May 2010. Judgment was given on 20 May 2010. 14. The High Court ruled against the applicant on all grounds. The judge preferred the evidence given by the witnesses appearing on behalf of the defence, deeming their qualifications to be more relevant to this specialised area than those of the experts retained by the applicant. He found that Dr B had complied with the therapeutic indications on the data sheet of the drug. The doctor’s decision to place the applicant directly on the long-acting form of the drug was supported by the expert opinion given on his behalf. The judge did not accept that Dr B had failed to monitor adequately the effects of the drug on the applicant during the months that she received it. Likewise, he rejected the claim that the doctor had failed in his duty of care in the manner in which he had explained the proposed course of treatment to the applicant and the possible side effects. 15. On the question of consent, the judge considered that while the applicant had misunderstood the exact state of her tumour, this was not to be blamed upon Dr B, who had fulfilled his legal duty by giving her accurate and appropriate information about her condition. The applicant’s mistaken impression was neither caused nor contributed to by the doctor’s explanations. He found that Dr B had not been aware of the applicant’s misunderstanding and could not be blamed for the deficiencies in her knowledge of her condition. Moreover, he had given sufficient warning to the applicant regarding the gastro-intestinal side effects of the drug. Other potential side-effects (gallstones, hepatic dysfunction) had not been raised, but as they had not in fact materialised there were no grounds for complaint. The judge concluded that the applicant had given her valid, informed consent to the treatment. 16. The applicant appealed against the judgment, advancing numerous grounds. The appeal was filed on 1 July 2010. It remained pending before the Supreme Court until it was transferred to the newly-established Court of Appeal on 29 October 2014. The hearing of the appeal took place on 30 July 2015. 17. In a judgment of 17 November 2015 the Court of Appeal dismissed the appeal. The Court of Appeal addressed two issues. First, regarding the treatment of the applicant with the particular drug, it saw no basis to criticise the findings of the trial judge. His preference for the evidence of the defendants’ experts was rationally grounded, and his rejection of the applicant’s criticisms of Dr B was based on careful consideration of the evidence. 18. Second, on the issue of consent, the Court of Appeal reviewed the evidence about what Dr B knew of the applicant’s understanding of her condition. It rejected her claim that the High Court had made a clear error on this point. It considered that Dr B’s actions had been in keeping with the relevant domestic legal principles. It noted that Dr B’s opinion at the time was that the applicant had a serious condition that required treatment. As surgery was not possible, the only alternative was medication. It was, the Court of Appeal held, reasonably open to him to hold that view. He had explained to the applicant the expected benefits of the drug prescribed, as well as the unpleasant side effects. As for the argument that the doctor should have also presented a “do nothing” option, the Court of Appeal described this as “somewhat unreal”. Where a person seeks referral from a general practitioner to a specialist, it could be reasonably assumed that they wished to receive treatment, and that they had excluded the non-treatment option. 19. The applicant sought leave to appeal. On 8 March 2016 the Supreme Court refused. | 1 |
test | 001-161232 | ENG | POL | ADMISSIBILITY | 2,016 | BARSKI AND ŚWIĘCZKOWSKI v. POLAND | 4 | Inadmissible | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 1. The applicant in the first case, Mr Dariusz Barski (“the first applicant”), is a Polish national, who was born in 1968 and lives in Aleksandrów Łódzki. 2. The applicant in the second case, Mr Bogdan Święczkowski (“the second applicant”), is a Polish national, who was born in 1970 and lives in Sosnowiec. Both applicants were represented before the Court by Mr M. Górski, a lawyer practising in Łódź. 4. The applicants were high-ranking prosecutors. The first applicant had served, inter alia, as the Deputy Prosecutor General and the Deputy Minister of Justice. Both applicants acquired the status of a “prosecutor in inactive service” (prokurator w stanie spoczynku) in May 2010. 5. The applicants stood for election to the Sejm (the first Chamber of the Parliament) from the list of the Law and Justice party as nonpartisan candidates. 6. On 22 September 2011, during the electoral campaign before parliamentary elections, the National Council of the Prosecution Service (Krajowa Rada Prokuratury), a body composed of senior prosecutors, Members of Parliament, the Minister of Justice, the Prosecutor General and the representative of the President of the Republic, passed a resolution expressing a view on the participation of prosecutors standing for election in political activities. The National Council opined that prosecutors, including prosecutors in inactive service had the right to stand for election to Parliament. It noted that the prosecutors in inactive service enjoyed a privileged position in comparison to the prosecutors in service in that when elected members of parliament the former were not required to renounce their status of prosecutors in inactive service. The National Council recommended that this situation had to be addressed by the legislature. At the same time, it reminded all prosecutors of the statutory ban on engaging in political activity. 7. The applicants were elected members of the Sejm on 9 October 2011. The results of the elections were published on 12 October 2011. On an unspecified date the applicants were requested by the Speaker of the Sejm (Marszałek Sejmu) to renounce their status of prosecutors in inactive service. 8. On 18 October 2011 the National Council of the Prosecution Service passed a new resolution in which it opined that both prosecutors in service and prosecutors in inactive service could not hold their position and sit as Member of Parliament at the same time. The Council stated that its previous opinion of 18 September 2011 had only concerned the period of electoral campaign. 9. On 27 October 2011 the Speaker of the Sejm issued two respective orders declaring that the applicants had forfeited their parliamentary seats under Article 103 § 2 of the Constitution in conjunction with Article 249 § 1 of the Electoral Code. He observed that the prohibition of holding jointly a parliamentary seat and other public office (“incompatibilitas”) was the consequence of the principle of the separation of powers and of the political neutrality of the public service. The Constitution prescribed in Article 103 §§ 1 and 2 the absolute and directly applicable ban on joint holding of the office of a deputy with other positions listed in this provision. The scope of this ban could not be restricted by statutory regulations. 10. The Speaker noted that the ban on holding jointly a parliamentary seat and the office of a prosecutor was prescribed in Article 103 § 2 of the Constitution. This rule was also reflected in the statutory norms, namely section 30 § 1 of the Act on the Exercise of the Mandate of the Member of the Sejm and of the Senate (hereinafter “The Act on the Exercise”) and section 65a § 1 of the Act on the Prosecution Service. The scope of those various provisions was not identical, in particular with regard to the consequences of the breach of the impugned ban. The Act on the Exercise stated that deputies could not concurrently work in the position of a prosecutor and permitted in such a case for a prosecutor to benefit from an unpaid leave of absence. On the other hand, the Act on the Prosecution Service required that a prosecutor who had been elected to hold a position in a State organ forfeit his office of the prosecutor, unless he acquired the status of a prosecutor in inactive service. The Speaker acknowledged the above divergences in respect of the impugned ban between the statutory regulation on the one hand and the constitutional regulation on the other. Nonetheless, the Speaker considered that he was obliged to apply the constitutional rule prescribed in Article 103 § 2 and disregard the statutory provisions incompatible with that rule. 11. The next issue to determine was the interpretation of the term “prosecutor” employed in Article 103 § 2 of the Constitution and whether this term encompassed prosecutors in inactive service. The Speaker noted that this was an autonomous constitutional term which could not be limited to its statutory definitions. Having analysed the relevant provisions of the Act on the Prosecution Service as well as the case-law of the Constitutional Court and of the Supreme Court, the Speaker found that the term “prosecutor” employed in Article 103 § 2 of the Constitution encompassed equally prosecutors in inactive service. 12. The Speaker noted that within fourteen days of the final result of the elections the applicants could have declared that they had renounced their status of prosecutors in inactive service. In the absence of such a declaration, the Speaker held that the applicants had forfeited their parliamentary seats. 13. The first applicant lodged an appeal with the Supreme Court. He argued, inter alia, that the Speaker had erred in finding that the term “prosecutor” used in Article 103 § 2 of the Constitution comprised prosecutors in inactive service. He further maintained that the Speaker had suddenly adopted a new interpretation of the term which was inconsistent with its statutory understanding (section 65a § 1 of the Act on the Prosecution Service and section 30 of the Act on the Exercise) as well as contrary to existing practice. He further invoked the first resolution of the National Council of the Prosecution Service which stated that a prosecutor in inactive service could hold the office of a deputy jointly with his status of a prosecutor in inactive service. In addition, the Speaker’s finding that the first applicant had to irrevocably forfeit his status of the prosecutor in inactive service in order to keep his parliamentary seat breached the constitutional provisions on proportionality and equality. Lastly, invoking, inter alia, Article 6 § 1 of the Convention, the applicant submitted that the Speaker had not informed him about the procedure initiated in his case and had not offered him a possibility to make representations. 14. The second applicant appealed too. He alleged, inter alia, that the Speaker had wrongly applied Article 103 § 2 and other provisions of the Constitution regulating the right of access to the public service and the right to stand for election as well as the relevant provisions of the Electoral Code. He also invoked Article 14 of the Convention. His main contention was that the ban prescribed in Article 103 § 2 of the Constitution did not apply to prosecutors in inactive service. 15. On 9 November 2011, the Supreme Court, sitting in camera, dismissed the applicants’ respective appeals. 16. The Supreme Court first inquired about the existing practice with regard to judges and prosecutors in inactive service sitting as MPs. It established that there had been one case of a judge in inactive service who sat as a Senator (Member of the Senate, the second Chamber of the Polish Parliament) between 2001 and 2007. In that case no action was taken by the Speaker of the Senate. There had been no such cases concerning prosecutors in inactive service. In one case concerning a judge in inactive service, the First President of the Supreme Court objected to the participation of this judge in the capacity of an expert in the works of the parliamentary commission of inquiry, considering it being incompatible with the duty of political neutrality of judges. In the Supreme Court’s view, the existing practice was inconsistent and did not support the applicants’ contention that prosecutors in inactive service could sit as MPs. 17. The Supreme Court carried out a detailed analysis of the term “prosecutor” within the meaning of Article 103 § 2 of the Constitution. It noted first that this provision used the term “prosecutor” without any qualification which signified that it was applicable to all prosecutors, i.e. persons appointed to a post of a prosecutor. At the date of the entry into force of the Constitution, that is on 17 October 1997, the appointment to a post of a prosecutor ended with retirement. Subsequently, on 1 January 1998 the Amendment to the Prosecution Service Act introduced the status of a “prosecutor in inactive service” (in parallel to the status of a “judge in inactive service”). Following this amendment, the public-law employment relationship of a prosecutor began with his appointment and continued until his or her death (save for cases when a prosecutor renounced it or was divested of it as a result of a judgment). The said amendment altered the meaning of the term “prosecutor” and from its entry into force the term covered not only prosecutors in active service, but also “prosecutors in inactive service”. 18. This finding was confirmed by the case-law of the Constitutional Court (judgment of 6 March 2007, case no. SK 54/06) and of the Supreme Court (inter alia, judgment of 29 September 2005, case no. SDI 22/05). Both courts underlined that a prosecutor in inactive service (or judge in inactive service) did not cease to be a prosecutor (judge) and the holder of a public office. Prosecutors in inactive service continued their publiclaw employment relationship with the exception of the obligation to carry out their duties. The legislator wished to preserve the authority of the office of a prosecutor (judge) and thus bestowed particular privileges on those who had held those offices in exchange for the resignation from certain rights. The Act on the Prosecution Service linked the status of a prosecutor in inactive service with a number of obligations such as disciplinary responsibility, the limitation on taking any other employment or gainful activity, the requirement to uphold the dignity of the office and the ban on engaging in political activity. At the same time prosecutors in inactive service received a special pension (uposażenie) which was more favourable than an ordinary old-age pension. It was further clear that a prosecutor in inactive service could voluntarily renounce his status and all the corresponding rights and obligations. 19. In conclusion, the Supreme Court held that there was no doubt that the term “prosecutor” employed in Article 103 § 2 of the Constitution covered both prosecutors in service and prosecutors in inactive service. It noted that the interpretation of the provisions of the Constitution, like in the present case, could not be determined by the content of statutory norms, in particular by section 65a of the Act on the Prosecution Service. The ban on holding jointly a parliamentary seat and the position of a prosecutor, comprising prosecutor in inactive service, was directly prescribed in the Constitution. Accordingly, the fact of a prosecutor going into inactive service could not revoke the ban set out in Article 103 § 2 of the Constitution; it was necessary that a prosecutor in inactive service renounce his status the prosecutor in inactive service. 20. Furthermore, the Supreme Court noted that according to section 44 § 3 of the Act on the Prosecution Service, prosecutors were prohibited from joining any political party and from engaging in any political activity. In accordance with the Supreme Court’s case-law, this provision was also applicable to prosecutors in inactive service, while there was no doubt that sitting as a deputy was a political activity. In the Supreme Court’s view, the rules on disqualification were aimed at ensuring political neutrality of the public service and the transparent operation of the parliament free from undue influence and the conflict of interest. They were further proportional to those aims. The Supreme Court held that the constitutional provisions on the equality (Article 32 § 2), the right of access to the public service (Article 60) and the right to be elected (Article 99) had not been infringed. The ban which affected the applicant had its origin in the Constitution itself and the drafters of the Constitution had carried out a balancing exercise of the various competing interests. Furthermore, the applicants had had time to consider their options and the possibility to renounce their status of prosecutors in inactive service. 21. The Supreme Court found that no provision of the Convention, in particular Article 3 of Protocol No. 1 or Article 14, had been breached in the applicants’ case. In its view, Article 3 of Protocol No. 1 did not concern the rules on disqualification. The applicants had exercised their right to be elected a deputy, but in order to keep their parliamentary seat they had to renounce their status of a prosecutor in inactive service. The Supreme Court relied on the decision Briķe v. Latvia (no. 47135/99, 29 June 2000) in which the Court had dismissed the complaint of a judge who complained that in order to stand for election to Parliament she had had to resign from her judicial office. The Supreme Court found that the same approach was applicable, mutatis mutandis, to the situation of the applicants in the present case. 22. The Supreme Court further held that Article 6 § 1 of the Convention was not applicable to the proceedings at issue because they concerned political rights. It noted, in passing, that the applicants had been summoned to renounce their status of the prosecutor in inactive service. 23. The first applicant filed a constitutional complaint. He alleged that the relevant provisions of the Electoral Code breached the constitutional right of access to the public service (Article 60), the right to stand for election (Article 99 § 1) as well as Article 103 § 2 of the Constitution in that prosecutors in inactive service could not sit as Deputies. On 25 September 2013 the Constitutional Court discontinued the proceedings, having found, inter alia, that the ban on holding jointly the offices of a prosecutor in inactive service and of an MP was prescribed directly in the Constitution and therefore the Constitutional Court had no jurisdiction to decide the case (case no. SK 44/12). It noted, obiter dicta, that the inconsistent interpretation of Article 103 § 2 of the Constitution should be unified. 24. Article 99 § 1 of the Constitution provides: “Every citizen having the right to vote, who, no later than on the day of the elections, has attained the age of 21 years, shall be eligible to be elected to the Sejm.” 25. Article 103 § 2 of the Constitution reads as follows: “No judge, public prosecutor, officer of the civil service, soldier on active military service or officer of the police or of the services of State protection shall exercise the mandate of a Deputy.” 26. Article 247 of the Electoral Code, in its relevant part, provides as follows: “1. The expiration of the mandate of a Deputy shall occur in the following cases: ... 5) holding on the election day of an office or position, which according to the provisions of the Constitution of the Republic of Poland or statutes could not be held jointly with the office of a Deputy, subject to the provision of § 3.” 27. Article 247 § 3 states that an expiration of the mandate of a Deputy in the situation described above will take place if a Deputy did not submit to the Speaker of the Sejm a declaration resigning from his other office or position within fourteen days of the official result of the election being published. 28. Article 334 § 2 of the Electoral Code provides that a Member of the European Parliament cannot hold jointly his or her mandate with those offices or positions which according to the Constitution or statutes cannot be held jointly with the mandate of a Deputy. 29. Section 44 § 3 of the Act on the Prosecution Service provides that a prosecutor cannot join a political party or be involved in any political activity. 30. Section 65a § 1 of the same Act reads as follows: “A prosecutor who was nominated, appointed or elected to hold office in the State organs, local self-government, diplomatic service, consular service or in the organs of the international or supranational organisations acting on the basis of an international agreement ratified by the Republic of Poland shall resign from his position unless he goes into inactive service.” | 0 |
test | 001-146418 | ENG | TUR | ADMISSIBILITY | 2,014 | KESKİN v. TURKEY | 4 | Inadmissible | Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 1. The applicant, Mr Ali Keskin, is a Turkish national, who was born in 1969 and lives in Erzurum. He was represented before the Court by Mr B. Bedirhanoğlu, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 21 August 2006 the applicant found his seven-year-old son, A.K., injured. 4. On 14 August 2008 the Oltu public prosecutor filed an indictment with the Oltu Assize Court, accusing N.K., the applicant’s former wife, of assaulting A.K. and murdering the couple’s first child, M.K. The applicant joined the criminal proceedings against N.K. as a civil party. 5. On 4 March 2010, after evaluating the medical reports, witness statements and the public prosecutor’s written opinion, the Oltu Assize Court acquitted N.K. of the charges against her. 6. On 25 May 2011 the Court of Cassation upheld the judgment of the Assize Court. This decision was deposited with the registry of the Assize Court on 21 June 2011. The president of the court noted on the judgment that the intervening party should be notified. According to the information in the case file, the judgment was not served on the applicant. On 6 January 2012 he obtained a copy from the registry of the first-instance court. | 0 |
test | 001-144367 | ENG | HRV | CHAMBER | 2,014 | CASE OF MARGARETIĆ v. CROATIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Non-pecuniary damage - award | Dmitry Dedov;Erik Møse;Georgieva;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković | 4. The applicant was born in 1969 and lives in Osijek. Prior to his arrest and detention, which gave rise to the case at issue, the applicant worked as a police officer in the Osijek-Baranja Police Department (Policijska uprava Osječko-baranjska). 5. On 23 March 2012 the applicant was arrested on suspicion of conspiracy and abuse of power and authority. 6. The following day he was brought before an investigating judge (sudac istrage) of the Zagreb County Court (Županijski sud u Zagrebu) who ordered that he be placed in pre-trial detention (istražni zatvor) for a further two months under Article 123 § 1(2) and (3) of the Code of Criminal Procedure (risk of collusion and risk of reoffending) or, alternatively, released on bail, which was set at 700,000 Croatian kunas (HRK). The judge held that the applicant’s detention was necessary because some further physical evidence had to be collected, and in order to prevent him from coordinating his defence with the second suspect, who was still at large. She also considered that there was a risk that the applicant might suborn witnesses and, given and his employment as a police officer, that he might reoffend. 7. On the same day the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Office”) opened an investigation against the applicant and six others persons in connection with suspected conspiracy and abuse of power and authority. 8. The applicant and the State Attorney’s Office also lodged appeals against the investigating judge’s decision on the applicant’s detention. The applicant challenged the reasons for his pre-trial detention while the State Attorney’s Office challenged the part of the investigating judge’s decision allowing for the applicant’s conditional release on bail. 9. On 4 April 2012 a three-judge panel of the Zagreb County Court allowed the appeal of the State Attorney’s Office and reversed the investigating judge’s decision allowing for the applicant’detaining the applicant was the only way to prevent the risk of collusion and reoffending. 10. On 6 April 2012 the same three-judge panel of the Zagreb County Court dismissed the applicant’ate his defence with the second suspect, who was still at large, and that he might interfere with the seizure of further physical evidence and suborn nine witnesses (M.I., I.R., T.P., M.H., Z.N., S.K., Z.L., D.J. and S.P.) who worked as police officers in the Osijek-Baranja Police Department. It also endorsed the investigating judge’s finding as to the possibility of the applicant’s reoffending. 11. On 23 April 2012 the State Attorney’s Office requested the investigating judge to extend the applicant’s pre-trial detention on the grounds of the risk of collusion and risk of reoffending, relying on the same grounds on which the applicant had initially been detained. 12. The investigating judge extended on the same day the applicant’s pre-trial detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) and dismissed the request to extend his detention under Article 123 § 1(3) of the Code of Criminal Procedure (risk of reoffending). She held that there were sufficient reasons to believe that, if at large, the applicant could suborn witnesses and coordinate his defence with the second suspect, who still had not been apprehended. However, the judge found that in the meantime the applicant had been suspended from service and therefore she considered that there was no longer a risk that he might reoffend. 13. The decision of the investigating judge was upheld by a three-judge panel of the Zagreb County Court on 11 May 2012. 14. At a detention hearing on 20 June 2012 the State Attorney’s Office again motioned for the extension of the applicant’s detention. The applicant objected, pointing out that there was sufficient time for the questioning of the witnesses and that it was no longer necessary to keep him in detention. 15. The investigating judge accepted the request of the State Attorney’s Office and extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) reiterating the arguments that there was a risk that the applicant might suborn witnesses and coordinate his defence with the second suspect. 16. The applicant appealed against this decision, and on 12 July 2012 a three-judge panel of the Zagreb County Court allowed his appeal and remitted the case to the investigating judge for re-examination but without releasing the applicant from detention. It held that the decision lacked the relevant reasoning as it was not clear whom exactly the applicant might suborn and under what circumstances. 17. At a detention hearing on 25 July 2012 the applicant pointed out that his detention depended on the questioning of witnesses whom the State Attorney’s Office had had sufficient time to question and that there was no reason to believe that he might suborn the second suspect. He also asked the investigating judge to examine the possibility of his conditional release under preventive measures. 18. The investigating judge extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion). She pointed out that in fact it had been necessary to question nine witnesses (I.R., D.J., T.P., S.K., M.I., M.H. and Z.N – noted above in paragraph 10; and two others, M.Ke and M.Ko.) who worked as police officers in the Osijek-Baranja Police Department and that there was a risk that the applicant might suborn them. However, the judge dismissed the request to keep the applicant in detention on the grounds that he might coordinate his defence with the second suspect, who was still at large, holding that he had given his defence and therefore there was no risk that he might coordinate it with the second suspect. The judge noted that: “.. all the suspects have given their defence so there is no risk that, if at large, they could coordinate their defences with the second suspect, and the fact that they might be questioned as suspects again during the proceedings is not a reason to extend their detention now under Article 123 § 1(2) of the Code of Criminal Procedure with regard to the second suspect ...” 19. The applicant appealed against that decision, arguing that the investigating judge had failed to show that he might suborn the witnesses. 20. On 23 August 2012 at a detention hearing the State Attorney’s Office asked the investigating judge to extend the applicant’s detention on the grounds that he might suborn the above-mentioned nine witnesses (see paragraph 18 above). It also considered, pointing out that a number of witnesses had to be questioned and that a considerable amount of other evidence had to be taken during the investigation, that the investigation had not lasted an unreasonably long time. 21. The investigating judge accepted the request and extended the applicant’s detention for one month under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that there was a danger that he might suborn the witnesses. She also considered that the danger of his suborning the witnesses could not be averted by the application of preventive measures. 22. The applicant appealed against this decision and on 12 September 2012 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded. 23. On 20 September 2012 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the investigating judge’s decision of 25 July 2012 (see paragraphs 17-19 above) as ill-founded. 24. On the same day the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) extended the investigation, based on a proposal made by the lower State Attorney’s Office conducting the proceedings, for a further twelve months on the grounds that it was necessary to question a number of witnesses and take other evidence and to request international assistance in obtaining the relevant information. 25. At a detention hearing on 21 September 2012 the applicant contended that there had been sufficient time for the State Attorney’s Office to question the witnesses against him and asked the investigating judge to order that the witnesses be questioned without any further delay. 26. The investigating judge extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) reiterating the same reasoning that the applicant might suborn the nine witnesses referred to above and holding that his detention could not be replaced by preventive measures. 27. On an unspecified date in September 2012 the applicant lodged an appeal against that decision, arguing that there had been more than sufficient time to question the witnesses and that his detention was no longer reasonable and justified. 28. On 24 September 2012 the applicant submitted a request asking the investigating judge to order the State Attorney’s Office to question the nine witnesses, pointing out that he had already been detained for more than six months and that the witnesses had still not been questioned. He also argued that his detention had been ordered and extended only in relation to the questioning of those witnesses and no action had been taken in that respect. 29. On 9 October 2012 the investigating judge accepted the applicant’s request and ordered the State Attorney’s Office to question the witnesses within fourteen days. In her order, the judge noted: “The suspect Bruno Margaretić has been detained since 23 March 2012 and his detention was extended [several times] based on the decisions of this court. Bearing in mind that the suspect has been detained for more than six months, and that throughout that period the State Attorney’s Office has repeatedly relied on the need to question those very witnesses, it is beyond doubt that in the said period those witnesses could have been questioned. Since in the period at issue the above-mentioned witnesses have not been questioned and the suspect Bruno Margaretić has been detained [for the entire time] it is necessary to question the witnesses promptly. This is because detention is a measure of last resort and as such it must be reduced to a minimum while all procedural actions must be taken without delay. This judge considers that a time-limit of fourteen days is sufficient for the questioning of the witnesses since there are only nine of them.” 30. On 10 October 2012 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the decision on his detention of 21 September 2012 (see paragraphs 25-27 above), reiterating the arguments they had used to order the applicant’s detention pending the questioning of the witnesses. 31. On 15 October 2012 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the decision of the three-judge panel of 20 September 2012 dismissing his appeal against the decision on his detention of 25 July 2012 (see paragraph 23 above) and against the decision of a three-judge panel of 12 September 2012 dismissing his appeal against the decision on his detention of 23 August 2012 (see paragraph 22 above). The applicant argued that his detention was arbitrary, since although the investigating judge had found that the witnesses could be questioned within fourteen days, he had been detained on the ground that they needed questioning for almost seven months. 32. On an unspecified date in 2012 the applicant lodged a further constitutional complaint against the decision of the three-judge panel of 10 October 2012 dismissing his appeal against the decision on his detention of 21 September 2012 (see paragraph 30 above), reiterating the same reasoning. 33. On 25 October 2012 the Constitutional Court declared the applicant’s constitutional complaint of 15 October 2012 inadmissible on the grounds that in the meantime, on 21 September 2012 (see paragraphs 25 and 26 above), a new decision on the applicant’s detention had been adopted and that he was no longer detained in connection with the decisions complained of. 34. On 6 November 2012 the Constitutional Court dismissed the applicant’s constitutional complaint against the decision of the three-judge panel of 10 October 2012 (see paragraphs 30 and 32 above) as ill-founded, endorsing the reasoning of the lower courts. 35. In the meantime, the State Attorney’s Office complied with the order of the investigating judge of 9 October 2012 (see paragraph 29 above) and questioned eight of the nine witnesses in one day (on 20 October 2012) and the remaining one on 24 October 2012. On the same day it applied for the extension of the applicant’s detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that he could coordinate his defence with the second suspect, who was still at large. 36. On 6 November 2012 the applicant requested to be released from detention, arguing that no relevant reasons for keeping him in custody existed. 37. A hearing concerning the applicant’s request was held on 21 November 2012, at which the applicant reiterated his arguments and the Deputy State Attorney pointed out that the second suspect was still at large and that the prosecuting authorities were doing their utmost to apprehend him. She therefore considered that the applicant should be kept in detention in order to prevent him from coordinating his defence with the second suspect. 38. The investigating judge dismissed the applicant’s request for release on the grounds that the applicant could contact the second suspect and that they could coordinate their defences. The relevant part of the decision reads: “The second suspect is still at large and he has had contact with the fifth suspect, Bruno Margaretić, which means that the fifth suspect, if released, could get in touch with the second suspect, which would allow them to coordinate their defences and to obstruct the conduct of the proceedings.” 39. A further detention hearing was held on 23 November 2012, at which the applicant pointed out that he had been detained on the sole ground that he might suborn the witnesses, while no other reason, in particular the possibility of his coordinating his defence with the second suspect, had been adduced, and that it was only now, after the witnesses had been questioned, that an extension of his detention was requested on the ground that he might collude with the second suspect. The applicant considered that that was not possible, because according to the available information the second suspect lived in Serbia and, given the media coverage of the proceedings at issue, it was unlikely that he would come to Croatia. The applicant therefore asked the investigating judge, if she considered that there was a possibility of them contacting each other, to release him on condition that his passport be seized and other preventive measures which would prevent him from contacting the second suspect be applied if necessary. 40. The investigating judge extended the applicant’s pre-trial detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that there was a danger that he might contact the second accused. The relevant part of the decision reads: “As regards the fifth suspect [Bruno Margaretić] and the sixth suspect, the investigating judge finds that a risk of collusion with the second suspect, D.G., who is at large, still exists. The defence arguments that the detention could be replaced by preventive measures and that D.G. is a citizen of Serbia and has not come to Croatia since 11 January 2012 are of no relevance at this stage of the proceedings. It should be noted that that the suspects at issue were police officers who most certainly knew a lot of people and could therefore easily get in touch with the second suspect, D.G. This risk could not be averted by the seizure of their passports, because they could travel to certain countries with their identity cards alone and could easily meet the second suspect somewhere else. The analysis of the telephone conversations shows that the fifth suspect [Bruno Margaretić] previously contacted the second suspect and that therefore he more or less knows where to find him and how to reach him, while the sixth suspect is his colleague and friend, and [therefore] they could both get in touch with the second suspect without difficulty. That risk can be averted only by their detention and therefore the conditions under Article 123 § 1(2) of the Code of Criminal Procedure have been met.” 41. The applicant appealed against that decision and on 12 December 2012 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, endorsing the reasoning of the investigating judge. 42. On 8 January 2013 the applicant lodged a constitutional complaint against that decision and on 15 January 2013 the Constitutional Court dismissed it as ill-founded, endorsing the arguments of the lower courts. 43. On 22 January 2013 a detention hearing was held at which the parties reiterated their previous arguments. The investigating judge extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion), or alternatively, set bail for his release at HRK 1,500,000. The judge held that there was a risk that the applicant would contact the second suspect, which warranted his detention. He could, however, be released on bail, the amount of’s personal situation, namely, the fact that he was in employment, owned property and had a family who could support him financially. 44. The applicant appealed against that decision, arguing that there were no relevant reasons to keep him in detention and that the amount set for bail was excessive. 45. On 7 February 2013 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, endorsing the reasoning of the investigating judge. 46. On 26 February 2013 the applicant lodged a constitutional complaint against that decision with the Constitutional Court, arguing that the lower courts had failed to provide relevant and sufficient reasons for his detention. 47. On 28 February 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. 48. On 22 March 2013 a three-judge panel of the Zagreb County Court extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) and set bail for his release at HRK 1,500,000. It held that there was a risk that the applicant might contact the second suspect and that they could coordinate their defences. It also considered that the risk could be averted by the deposit of bail in an amount which corresponded to the circumstances of the offence and the fact that the applicant was employed and had a regular income. 49. The applicant appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske), reiterating his previous arguments and asking that his detention be replaced with preventive measures. 50. On 12 April 2013 the Supreme Court quashed the decision of the three-judge panel of the Zagreb County Court extending the applicant’s detention and remitted the case for re-examination but without releasing the applicant from detention. The Supreme Court held that the Zagreb County Court had not given consideration to the possibility of imposing less severe preventive measures on the applicant and that the amount of bail requested for his release had been excessive. 51. On 22 April 2013 a three-judge panel of the Zagreb County Court again extended the applicant’s detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that the applicant could contact the second applicable preventive measures. 52. On 23 April 2013 the State Attorney’s Office indicted the applicant and six other persons in the Zagreb County Court on the charges of conspiracy and abuse of power and authority. The State Attorney’s Office also requested that the applicant be kept in detention pending trial. 53. On 2 May 2013 the applicant lodged an appeal with the Supreme Court challenging the decision of the Zagreb County Court of 22 April 2013 extending his detention, arguing that the Zagreb County Court had failed to comply with the instructions provided in the Supreme Court’s decision of 12 April 2013 (see paragraph 50 above). 54. On 10 May 2013 the Supreme Court accepted the applicant’s appeal and, without releasing the applicant from detention, remitted the case to the Zagreb County Court for re-examination on the grounds that the decision of the Zagreb County Court lacked the relevant reasoning. 55. On 21 May 2013 a three-judge panel of the Zagreb County Court released the applicant from detention on condition that he refrain from contacting the second accused and ordered the seizure of his travel documents. It held that the applicant had been detained for almost fifteen months whereas it was uncertain when, and indeed if, the second accused would be arrested. It also found that the applicant’s financial situation was not secure, as he was a divorced father of two and was without employment or income. Therefore, there were no grounds to request that bail be posted for his release. 56. The State Attorney’s Office lodged an appeal against that decision, arguing that the applicant should be kept in detention and on 12 June 2013 the Supreme Court dismissed the appeal as ill-founded, endorsing the reasoning of the Zagreb County Court. 57. The criminal proceedings against the applicant are still pending. 58. Parallel to the criminal proceedings, on 24 March 2012 the Chief of the Osijek-baranja Police Department ordered the applicant’s suspension from duty pending the outcome of the criminal proceedings. 59. On an unspecified date in 2012 the applicant, represented by a lawyer, challenged that decision before an appeal panel of the Ministry of the Interior (Ministartsvo unutarnjih poslova Republike Hrvatske), arguing that there had been no reason for his suspension. 60. On 17 April 2012 the appeal panel of the Ministry of the Interior dismissed the applicant’s appeal as ill-founded. The relevant part of the decision reads: “The suspension was ordered under section 112(3) of the Police Act, which provides that the minister or a commanding officer, which is in the case at issue the Chief of the Police Department, can order the suspension of a police officer even before disciplinary proceedings have been opened ... when he or she considers that the breach of duty at issue is of such a nature that keeping the police officer on duty could harm the interests of the service. ... Taking into account the circumstances of the present case, namely, the reasonable suspicion that the appellant had abused [his] power and authority, for which reason he was arrested, this panel considers that the first-instance body correctly and lawfully suspended him from service under section 112 of the Police Act ...” 61. Through his lawyer the applicant lodged an administrative action against that decision with the Osijek Administrative Court (Upravni sud u Osijeku) challenging the reasons for his suspension and arguing that the decisions of the lower bodies had not been sufficiently reasoned. 62. On 17 September 2012 the applicant’s lawyer submitted further written observations on the merits of the case and requested that a hearing scheduled for 18 September 2012 be adjourned until the applicant’s release from detention. 63. On 18 September 2012 the Osijek Administrative Court held a hearing in the absence of the applicant and his representative and dismissed the applicant’s administrative action as ill-founded. It found that the request for the adjournment of the hearing had been no more than an attempt to delay the proceedings and that the applicant’s representative, although duly informed, had failed to appear at the hearing without providing any relevant reasons. As to the merits of the case, the Osijek Administrative Court noted: “There is no dispute between the parties that the plaintiff was suspended due to a reasonable suspicion that he had committed a grave breach of his official duty. The dispute between the parties relates to the question of whether the defendant [had the right to] suspend the plaintiff from duty on the basis of the reasonable suspicion alone. ... [T]he fact that the plaintiff has been remanded in custody on a reasonable suspicion that he has committed an offence under Article 337 of the Criminal Code (abuse of power and authority) justifies the decision of the defendant, because the placing of a police officer in detention for the offence at issue could be damaging for the interests of the service and therefore his suspension is justified.” 64. Through his lawyer the applicant lodged an appeal with the High Administrative Court (Visoki upravni sud Republike Hrvatske) and on 11 October 2012 that court declared his appeal inadmissible on the grounds that the Osijek Administrative Court had not itself decided on the merits of the applicant’s rights and obligations but only dismissed his administrative action. 65. On 14 December 2012 the applicant’s lawyer lodged a constitutional complaint on behalf of the applicant with the Constitutional Court, challenging the lower courts’ decisions. 66. On 31 January 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. | 1 |
test | 001-174063 | ENG | RUS | COMMITTEE | 2,017 | CASE OF BARSUKOV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 6. The applicant was born in 1956 in the Tambov Region. Before his arrest he lived in St Petersburg. 7. The applicant was arrested on 23 August 2007. He remained in detention throughout the investigation and trial. 8. On 9 November 2009 the Kuybyshevskiy District Court of St Petersburg found him guilty of aggravated fraud and money laundering committed within an organised criminal group and sentenced him to fourteen years’ imprisonment. That judgment was upheld on appeal by the St Petersburg City Court on 30 March 2010. 9. On 6 March 2012, in another set of criminal proceedings, the Kuybyshevskiy District Court, found the applicant guilty of two counts of aggravated extortion committed within an organised criminal group and imposed a cumulative prison sentence of fifteen years. The judgment became final on 12 July 2012 when endorsed by the City Court. 10. In 1994 the applicant lost his right arm. He suffered heart attacks in 2000 and 2007 and a kidney affected by cancer was removed in 2003. At the time of his arrest the applicant’s diagnoses listed: ischemic disease, exertional angina of the second functional group, atherosclerotic and post infarction cardiosclerosis, third-stage hypertension with a high risk of vascular complications; cardiac failure of the second functional group; chronic post-traumatic pericarditis with effusion; remote cancer metastases requiring permanent supervision; kidney stones; concretion of the right kidney; chronic pyelonephritis; chronic kidney failure of the first degree; adenocarcinoma of the prostate gland; chronic prostatitis; chronic cystitis, and constantly recurrent multidrug-resistant infection of the urinary tract. To keep his medical condition under control, the applicant followed a daily complex drug regimen comprising up to ten medicaments and underwent an in-depth medical examination every two months in a hospital where he received necessary treatment in respect of his oncological illnesses. 11. On 24 August 2007 upon his admission to remand prison no. IZ77/1 in Moscow the applicant informed the prison medical authorities of his condition, submitting the full list of his diagnoses. 12. In September 2007 he started complaining about a number of symptoms such as a heart pain, fatigue, difficulty in breathing, and frequent urination. He received basic treatment which alleviated a part of his health problems, but the urinary condition worsened. In November 2007 he complained of a pain in the low abdomen and inability to urinate. On 20 November 2007 a surgeon recommended urinary catheterisation, that is to say the insertion of a tube into the patient’s bladder via the urethra. That procedure was performed approximately 250 times during the first year of detention. In the meantime the urinary condition became more acute. 13. On 4 December 2008 the applicant was examined by a urologist for the first time whilst in detention. The doctor recommended treatment with antibiotics, regular urological supervision and to avoid catheterisation in so far as possible. 14. Throughout 2009 the applicant’s urinary condition persisted. He urinated up to thirty-seven times per day and his nocturnal sleep was interrupted every hour or two. He had to continue resorting to urinary cauterisation. On several occasions he had a consultation with a urologist. 15. On 12 October 2009, at the request of the applicant’s lawyer, three medical experts prepared a report assessing the capability of the custodial authorities to properly treat the applicant. Having examined the medical file on the applicant compiled in the civilian hospital, submissions by the custodial authorities and the applicant’s own comments, the experts concluded that he required systematic treatment with amendments to the chemotherapy regimen and periodic admissions to a specialised cardiology hospital for instrumental examinations and necessary amendments to drug regimen. Given the absence of proper medical supervision, the experts also warned of a possible deterioration of the applicant’s urinary and oncological problems and a risk of those illnesses advancing to a stage requiring surgery, or to a stage with no prospects of the applicant being cured or even his life being saved. The experts observed that the medical unit of the detention facility where the applicant was kept was not equipped for treating patients in such a medical condition. 16. On 28 December 2009, 19 March, 15 June, 26 July, 25 August and 30 November 2010 the applicant was examined in the Moscow Scientific Institute of Urology (hereinafter “the Urology Institute”), having been diagnosed with neurogenic bladder dysfunction. The treatment provided slightly improved his condition. 17. On 21 December 2010 the doctors from the Urology Institute performed a surgery on the applicant. A suprapubic catheter was inserted into his bladder through a cut in the abdomen. The applicant was discharged from the hospital to a remand prison under the supervision of the resident doctor. 18. Three days later the applicant complained of continuous bleeding from the abdominal incision. The next day, having lost more than one litre of blood, he was sent back to the Institute, where his condition was brought under control. 19. In April 2011, in the remand prison, the applicant developed an acute inflammation of the urethra, which was successfully treated in the Institute. 20. From 2012 to 2014 the applicant’s urinary condition remained stable. He continued using the suprapubic catheter to remove the urine. 21. In the meantime, in December 2009 the applicant brought a court claim against the detention authorities, seeking that the lack of appropriate medical treatment be declared unlawful. 22. On 28 June 2010 the Preobrazhenskiy District Court of Moscow dismissed his claim. The court found as follows: “From the [applicant’s] medical file submitted by the [remand prison] it is apparent that ... [the authorities] provided him with medical aid, subjected him to medical testing, and prescribed treatment. In particular, on 4 December 2008, 25 September and 15 November 2009 he was seen by a urologist... On 28 December 2009 he was examined in the [Urology Institute]. It is not apparent from the medical file that the authorities refused to provide [the applicant] with the medical assistance or that he was deprived of the requisite medication”. 23. On 24 March 2011 the Moscow City Court upheld that decision on appeal. | 1 |
test | 001-165231 | ENG | PRT | COMMITTEE | 2,016 | CASE OF VEIGA DA SILVA BRAGA v. PORTUGAL | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque | 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 6 May 2011 the applicant brought enforcement proceedings against her former husband before the Braga Family Court seeking the payment of child support amounting to 3,600 euros (EUR). 6. On 27 February 2013 the applicant was notified that her former husband had no attachable assets. 7. On 12 June 2015 the proceedings were extinguished as no attachable assets were specified pursuant to Article 750 § 2 of the Code of Civil Procedure (see paragraph 8 below). | 1 |
test | 001-164920 | ENG | SRB | COMMITTEE | 2,016 | CASE OF JOVANOVIĆ v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 5. The applicant was born in 1943 and lives in Niš. 6. On 28 April 2010 the applicant brought an enforcement action before the Smederevo Court of First Instance (Osnovni sud u Smederevu) against a socially/State-owned company “FŽV Želvoz a.d. Smederevo” (the debtor). 7. On 15 December 2010 that court ordered direct enforcement of the outstanding invoice (izvršenje na osnovu verodostojne isprave). 8. On 15 June 2011 the Privatisation Agency ordered the restructuring of the debtor as part of privatisation process. 9. On 25 October 2011 the enforcement proceedings were stayed because the debtor was undergoing restructuring. 10. On 3 November 2011 the applicant appealed the decision to stay the enforcement proceedings. 11. On 10 February 2012 the applicant’s appeal was rejected by the enforcement court. 12. On 21 March 2013 the applicant urged the court to continue the enforcement proceedings. 13. On 7 June 2013 the court informed the applicant that the debtor was still undergoing restructuring and that therefore the enforcement proceedings could not be continued. 14. It would appear that the applicant did not appeal against this decision. 15. On 11 January 2010 the applicant brought an enforcement action before the Niš Commercial Court (Privredni sud u Nišu) against a socially/State-owned company “Vagonka a.d. Niš” (the debtor). 16. On 29 January 2010 that court ordered direct enforcement of the outstanding invoice. 17. On 4 November 2009 the Privatisation Agency ordered the restructuring of the debtor as part of privatisation process. 18. On 4 February 2010 the enforcement proceedings were stayed because the debtor was undergoing restructuring. 19. The applicant did not appeal against this decision which became final on 17 February 2010. 20. On 20 March 2013 the applicant urged the court to continue the enforcement proceedings. 21. On 22 March 2013 the court informed the applicant that the debtor was still undergoing restructuring and that therefore the enforcement proceedings could not be continued. | 1 |
test | 001-165031 | ENG | HRV | ADMISSIBILITY | 2,016 | NOVAK v. CROATIA | 4 | Inadmissible | Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković | 1. The applicant, Ms Mihaela Novak, is a Croatian national, who was born in 1974 and lives in Selnica. She was represented before the Court by Ms M. Drča, an advocate practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 27 February 2008 the applicant sustained an injury at work. 5. On 13 September 2010 the applicant brought a civil action in the Čakovec Municipal Court (Općinski sud u Čakovcu) against her employer, company I., seeking compensation for pecuniary and non-pecuniary damage sustained. 6. On 6 October 2010 the applicant’s statement of claim was forwarded to the defendant, which responded to it on 18 October 2010 by arguing that the injury had been exclusively her fault and by objecting to the level of compensation sought. The applicant made further submissions on 25 October 2010. 7. On 5 January, 25 May, 17 October and 20 December 2011 the applicant urged the court to schedule a hearing 8. The first hearing in the case was held on 12 March 2013 at which the applicant asked the court to obtain an opinion of a medical expert and opposed the defendant’s proposal to examine certain witnesses. 9. On 22 May 2013 the court decided to obtain an opinion of a forensic expert in medicine and invited the applicant to advance the costs thereof. The applicant did so on 8 July 2013. 10. On 12 September 2013 the expert submitted his opinion suggesting that a further expert opinion of an expert in psychiatry be obtained. 11. On 3 October 2013 the defendant submitted its comments on the expert opinion whereas the applicant did so on 29 October 2013. In her submissions she endorsed the proposal to obtain a further expert opinion of an expert in psychiatry and amended her action in accordance with the opinion of a medical expert already obtained. 12. On 5 November 2013 the court decided to obtain an opinion of a forensic expert in psychiatry. 13. On 17 December 2013 the expert in psychiatry submitted her opinion. 14. On 10 January 2014 the applicant commented on the expert opinion and amended her action accordingly whereas, on 23 January 2014, the defendant contested that opinion. 15. On 13 March 2014 the court held a hearing at which it heard the parties and the two experts and examined four witnesses. 16. Further hearings were held on 29 April and 15 May 2014. At the latter hearing the court closed the main hearing and scheduled a hearing for pronouncement of the judgment for 2 June 2014. 17. By a judgment pronounced on 2 June 2014 the Municipal Court ruled for the applicant and awarded her 44,840 Croatian kunas (HRK) in compensation together with the accrued statutory default interest and HRK 18,300 in costs. 18. On 10 June 2014 the defendant appealed against that judgment. 19. By a decision of 30 October 2014 the Varaždin County Court dismissed the appeal by the defendant and upheld the first-instance judgment which thereby became final. 20. Meanwhile, on 1 October 2013 the applicant lodged a request for protection of the right to a hearing within a reasonable time with the President of the Čakovec Municipal Court. She relied on section 65 of the 2013 Courts Act (see paragraph 23 below). 21. On 11 November 2013 the President issued a decision holding that the applicant’s request was well-founded and ordering the judge hearing the case to give a decision in the above civil proceedings within six months. 22. Section 63 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 with subsequent amendments– “the Constitutional Court Act”), reads as follows: “(1) Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person vested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional rights’)... (2) If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. (3) In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.” “(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted if the relevant court has failed to decide within a reasonable time on the rights or obligations of a party [to the proceedings] or as regards a suspicion or accusation of a criminal offence... (2) If it finds the constitutional complaint for failure to decide within a reasonable time referred to in paragraph 1 of this section well-founded, the Constitutional Court shall set a time-limit within which the relevant court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall award appropriate compensation to the complainant for the violation of his or her constitutional right ... to a hearing within a reasonable time. The compensation shall be paid from the State budget within three months of the date on which a request for payment is lodged.” 23. The relevant provisions of the Courts Act of 2013 (Zakon o sudovima, Official Gazette no. 28/13), which entered into force on 14 March 2013, read as follows: “A party to judicial proceedings which considers that the competent court did not decide within a reasonable time on its rights or obligations, or on a suspicion or accusation of a criminal offence, shall have the right to judicial protection in accordance with this Act.” “(1) The legal remedies for the protection of the right to a hearing within a reasonable time are: 1. The request for protection of the right to a hearing within a reasonable time, 2. The request for payment of appropriate compensation for the violation of the right to a hearing within a reasonable time. (2) In the proceedings for deciding the requests referred to in paragraph 1 of this section the rules of non-contentious procedure shall apply mutatis mutandis, and, in principle, no hearing shall be held.” “(1) The request for protection of the right to a hearing within a reasonable time shall be lodged with the court before which the proceedings are pending. (2) The request shall be decided by the President of the court unless he or she is the judge hearing the case, in which situation the request shall be decided by the Vice-President of the court. (3) The President of the court shall, within 15 days of the receipt of the request, demand the judge hearing the case [to submit] a report on the length of the proceedings and the reasons why [they] have not been completed, as well as an opinion on the period within which the case could be decided. The President of the court may himself or herself inspect the case-file. (4) The judge hearing the case shall submit the report immediately, but no later than 15 days from the time the President of the court demanded him or her to do so. (5) In deciding on the request the President of the court shall in particular take into account the type of the case, [its] factual and legal complexity, the conduct of the parties and of the court. (6) The President of the court shall decide on the request within 60 days of its receipt.” “ (2) If the judge does not decide the case within the specified time-limit, he or she must within 15 days of its expiry, submit a written report to the President of the court giving reasons for having failed to do so. The President of the Court shall without delay forward the judge’s report and his or her [own] observations to President of the immediately higher court and to the Ministry of Justice.” “(1) If the President of the court finds the request unfounded, he or she shall dismiss it by a decision against which the [requesting] party shall have the right to appeal within eight days of the receipt of the decision. (2) The [requesting] party shall have the right to appeal also when the President of the court, within 60 days from receiving it, does not decide on the request. (3) The appeal shall be decided by the President of the immediately higher court. If the request concerns the proceedings pending before the Supreme Court, the appeal shall be decided by a panel of three judges of that court. The President of the immediately higher court or the panel may dismiss the appeal as unfounded and uphold the first-instance decision or reverse [that] decision.” “(1) If the court does not decide on the case referred to in section 65 of this Act within the specified time-limit, the [requesting] party may within a further period of six months lodge a request for payment of appropriate compensation for the violation of the right to a hearing within a reasonable time with the immediately higher court. (2) If the request concerns the proceedings pending before the High Commercial Court, the High Administrative Court or the High Court for Administrative Offences, the request shall be decided by the Supreme Court. (3) The request referred to in paragraph 1 of this section shall be decided by a decision of a single judge. (4) If the request concerns the proceedings pending before the Supreme Court, the request shall be decided by a panel of three judges of that court. (5) The immediately higher court shall decide on the request within six months.” “(1) The immediately higher court or the panel of the Supreme Court shall specify the time-limit within which the court before which the proceedings are pending must decide the case, and shall award [the requesting party] appropriate compensation for the violation of his or her right to a hearing within a reasonable time. (2) The total amount of appropriate compensation awarded in one case may not exceed 35,000 Croatian kunas. (3) An appeal, to be lodged within eight days with the Supreme Court, lies against the decision on the request for payment of adequate compensation for the violation of the right to a hearing within a reasonable. The appeal shall be decided by a panel of three judges of that court, and, if the decision was rendered by the panel of the Supreme Court referred to in section 68 paragraph 4 of this Act, the appeal shall be decided by a panel of five judges of that court. (4) The decision awarding appropriate compensation for the violation of the right to a hearing within a reasonable time shall immediately after becoming final be forwarded to the President of the court before which the violation of the right to a hearing within a reasonable time occurred, to the President of the Supreme Court and to the Ministry of Justice. (5) The compensation referred to in paragraph 1 of this section shall be paid out of the State budget. (6) If the case referred to in paragraph 1 of this section is not decided within the specified time-limit, the court president must within 15 days of its expiry, submit a written report to the President of the immediately higher court and the Ministry of Justice giving reasons for having failed to do so.” “If before the European Court of Human Rights proceedings have been instituted for the protection of the right to a hearing within a reasonable time and the Government’s representative before the European Court of Human Rights has requested information on the case from the [domestic] court before which the proceedings [complained of] are pending, that court shall inform the President of the immediately higher court, the President of the Supreme Court and the Ministry of Justice of the Government representative’s request and of the reasons for the delay.” “Requests for protection of the right to a hearing within a reasonable time received before the entry into force of this Act shall be dealt with in accordance with the provisions of the 2005 Courts Act.” 24. On 23 December 2014 the Constitutional Court issued a decision no. U-IIIA-322/2014, where it held that complainants wishing to lodge constitutional complaints under section 63 of the Constitutional Court Act (see paragraph 22 above) to complain about the excessive length of ongoing judicial proceedings were first required to make full use of remedies available under the 2013 Courts Act (see paragraph 23 above). It therefore declared inadmissible a constitutional complaint lodged under section 63 of the Constitutional Court Act (see paragraph 22 above) by the complainant who did not attempt to avail herself of those remedies before lodging her constitutional complaint. The Constitutional Court’s decision was published in the Official Gazette no. 8/15 of 23 January 2015. The relevant part of that decision reads as follows: “3.1. It follows from the foregoing that since the introduction in 2005 in the domestic legal system of a new remedy (a request for protection of the right to hearing within a reasonable under sections 27 and 28 of the 2005 Courts Act), a constitutional complaint under section 63 of the Constitutional Court Act was no longer the only remedy in the Republic of Croatia for protection of the constitutional right to a hearing within a reasonable time. In other words, the Constitutional Court was no longer competent for the protection of the right to a hearing within a reasonable time in the first instance ... 5. ... - Apart from the general procedural requirements that every constitutional complaint must meet, a prerequisite for deciding on the constitutional complaint in which a violation of the constitutional right to a hearing within a reasonable time was alleged ([regardless of the fact] whether it was lodged under section 62 or section 63 of the Constitutional Court Act) is, as a rule, that the complainant had used beforehand all available remedies [to complain] against the unreasonable length of the proceedings. | 0 |
test | 001-160219 | ENG | MKD | CHAMBER | 2,016 | CASE OF IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Impartial tribunal;Independent tribunal);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano | 6. The applicant was born on 14 July 1946 and lives in Skopje. 7. On 22 January 2008 the Parliament of the respondent State passed the Additional Requirement for Public Office Act (Закон за определување дополнителен услов за вршење на јавна функција – hereafter “the Lustration Act”), which entered into force eight days later. 8. The Lustration Act introduced non-collaboration with the State security services in the period between 2 August 1944 and 30 January 2008, the date of the Act’s coming into force (hereafter “the screening period”), as an additional requirement for the holding of public office. In other words, collaboration with the State security services in that period became an impediment to holding public office. 9. All incumbent public officials and candidates for public office were required to submit a statement that they had not collaborated with the State security services in the above screening period (hereafter “the declaration”). The Lustration Act was to apply for five years from its entry into force (hereafter “the temporal scope”). 10. The Lustration Act also provided for the establishment of a Facts Verification Commission (Комисија за верификација на факти – hereafter “the Lustration Commission” or “the Commission”), which had to be set up within sixty days of the Act’s entry into force. Its task was to examine the veracity of the public officials’ declarations. The members of the Commission were elected by Parliament on 15 January 2009. The Commission became operational in late March 2009. 11. On 22 May 2009 amendments to the Lustration Act entered into force, adding several provisions primarily in respect of the functioning of the Lustration Commission and the status of its members. Also, the temporal scope of the Lustration Act was extended, from the five years initially envisaged following the Act’s entry into force, to ten years following the election of the Commission. 12. On 27 January 2010, following petitions for abstract constitutional review, the Constitutional Court accepted the initiative and decided to institute proceedings to review the constitutionality of several provisions of the Lustration Act, including the one extending the screening period (see paragraph 8 above) beyond the date of adoption of the current Constitution of the respondent State (17 November 1991). It also suspended application of those provisions until it had decided on their compatibility with the Constitution. 13. Fierce debate ensued, in which a number of politicians severely criticised the Constitutional Court’s decision in the media (see the European Commission’s Progress Report of 9 November 2010 in paragraph 109 below). For example, on 29 January 2010 the coordinator of the ruling party’s Parliamentary group made the following statement: “Having in mind that the Constitutional Court’s current composition was appointed during the political zenith [of the former President of the Republic], [the ruling party] believes that cancelling lustration’s scope of application after 1991 has one goal only: to prevent the Lustration Commission and the citizens of Macedonia from learning whether [the former President of the Republic and his party] officials, who controlled the secret services, actually used those structures against their political opponents.” 14. On 4 March 2010 the same MP stated: “We are convinced that the Constitutional Court wants to harness Macedonian democracy and keep it hostage [bound up] in the web woven by secret service collaborators. People from the secret services are striking back, together with their collaborators who continued to ‘snitch’, violate human rights, destroy people’s lives and wage war against political opponents, even after 1991.” 15. By a decision of 24 March 2010 the Constitutional Court invalidated certain provisions of the Lustration Act as unconstitutional. In particular, that court held that to extend the screening period beyond 17 November 1991, the date of adoption of the present Constitution, was unconstitutional. In other words, it was incompatible with the Constitution to provide collaboration with the State security services after that date as an impediment to the holding of public office. 16. Some other provisions were also held contrary to the Constitution, namely those providing for the publication of collaborators’ names in the Official Gazette, automatic lustration in cases where no declaration had been submitted, and those making it possible to introduce collaboration as an impediment to membership of governing bodies of political parties, civic organisations and religious communities by internal regulations of such non-State entities (see paragraphs 69-71, 78 and 81 below). 17. On the same date, 24 March 2010, the applicant, as the President of the Constitutional Court at the time, made the following statement to the media, in which he, inter alia, commented on the Parliament’s written response to the petitions for constitutional review in the proceedings before the court: “The response is seventeen pages long and provides arguments on the necessity to pursue lustration, motives behind the [Lustration] Act’s adoption, implementation procedure and the like, but my impression is that no legal arguments were presented ... I believe that the response should be made public. For example, Parliament, in its response, states ‘in constitutional and legal terms, one cannot contest the Act’s temporal scope’.... That cannot be considered a legal argument.” 18. By a decision of 29 September 2010 the Lustration Commission established that the applicant had submitted a false declaration and that accordingly he did not meet the additional requirement for public office (the course of the proceedings in the applicant’s case and the surrounding circumstances are described in detail in paragraphs 24-58 below). 19. On 25 February 2011 the Lustration Act was amended for the second time, and certain provisions that were similar to the invalidated ones were reintroduced. The provision delimiting the screening period in which the collaboration with the State security services was an impediment to the holding of public office was re-worded in such a way that the end-date remained open. The personal scope of the application was extended to cover former officials and officers in organisations performing duties of a public nature requiring them to submit declarations of non-collaboration. 20. On 28 March 2012 the Constitutional Court again invalidated several provisions of the Lustration Act, as amended by the 2011 Amendments (see the preceding paragraph 19 above). In so doing, the Constitutional Court held that its earlier decision (see paragraph 15 above) had been circumvented in view of the content of those amendments. 21. On 17 July 2012 the Lustration Act was repealed by the entry into force of the new Lustration Act (Закон за определување на услов за ограничување за вршење на јавна функција, пристап на документи и објавување на соработката со органите на државната безбедност). In 2014 the Constitutional Court refused to institute proceedings for abstract constitutional review of the new legislation. 22. While the 2008 Lustration Act was in force the Lustration Commission established in a total of eleven cases that the declarations on non-collaboration were false, and that therefore the person who had submitted them did not meet the additional requirement for public office. Apart from the applicant, who was the only incumbent official whose declaration was found to be false, those cases concerned eight former officials and two journalists. 23. On 1 September 2015 the Act Repealing the 2012 Lustration Act (Закон за престанување на важење на законот за определување на услов за ограничување за вршење на јавна функција) entered into force. According to the Act the Lustration Commission is allowed to complete, within two years, any ongoing proceedings in which a decision has already been issued, but may no longer institute new ones. Pending lustration proceedings in which the Commission has not issued a decision must be discontinued. Section 3 of the Act provides that a person in respect of whom the Commission has established that he or she has collaborated with the State security services is banned from holding public office for the period of five years from the time the Commission’s decision to that effect becomes final. 24. The applicant was a judge of the Constitutional Court between 2003 and 2011, when he was dismissed as a result of the lustration proceedings described below (see paragraphs 25-58). The applicant’s case was the first lustration case in the respondent State. During the lustration proceedings and at the time of his removal from office (see paragraph 56 below) the applicant was also the President of the Constitutional Court. 25. On 3 September 2009, the applicant, as a public official, submitted to the Lustration Commission a declaration of non-collaboration with the security services, as prescribed by section 6 of the Lustration Act (see paragraph 67 below). 26. On 5 July 2010 the Commission, by a letter classified as confidential, requested the State Archive to provide it with direct access to all the data, files and documents available in respect of the applicant. 27. On 12 and 22 July 2010 the State Archive informed the Commission that a personal record of the local branch of the secret police of the former Yugoslavia (hereafter “SFRY”) existed in respect of the applicant, and invited the Commission to consult the documentation. 28. On and around 15 September 2010, various media, despite the confidential nature of the proceedings before the Lustration Commission, reported that the Commission had allegedly identified a judge of the Constitutional Court as a collaborator with the State security services. In the following days the media continued to speculate that the identified collaborator was actually the President of the Constitutional Court. 29. During its deliberations held in private on 16 September 2010, the Lustration Commission found that the applicant’s declaration had not been in conformity with the evidence at its disposal. The applicant was notified of the Commission’s findings on 21 September 2010 with a note classified as “strictly confidential” (строго доверливо). He was also instructed that, under the Lustration Act, he could, within five days, submit oral or written observations to the Commission’s findings. The applicant replied and requested a public session on 24 September 2010. 30. On 22 September 2010 the daily Utrinski vesnik published an article entitled ‘Judge asks to speak publicly about being a ‘snitch’’. The relevant part of the article reads as follows: “Utrinski ‘unofficially’ learns that a Constitutional Court judge allegedly sinned during his high-school days, in the capacity of a member of a branch of an organisation called ‘United for Macedonia’ that was advocating unification of ethnic Macedonian territories. Once discovered, under pressure from the police, he was forced to disclose the names of the organisers.” 31. On 23 September 2010 the Commission notified the applicant that the session would be held on 27 September, that it would be public “when classified information was not being used” and that he could access the entirety of the classified documentation at the Commission’s disposal for one hour before the session. 32. On 24 September 2010, in an open letter broadcast in the media and addressed to “opponents of the lustration”, the Prime Minister of the respondent State (signed in his capacity as president of the governing party) stated, inter alia, that the Commission had publicly revealed that a member of the Constitutional Court had been a collaborator with the State security services and that it was now crystal clear that the collaborator sitting in the Constitutional Court, nominated by the former president of the Republic, and controlled by other centres of power, had invalidated a number of the legislative reforms of his Government. The letter was a response to his political opponents, who claimed that he was hindering the lustration process. The Prime Minister described their strategy in the following terms: “Attack the [ruling party] to [protect] the Constitutional Court, whose member the [Lustration] Commission had publicly declared a collaborator with the secret services. Accuse [the Prime Minister] of hindering the lustration [process] so that [he] would not accuse you of it becoming crystal clear that the secret services’ collaborator in the Constitutional Court scrapped a whole range of [the Prime Minister’s] reforms, and that [the Prime Minister] would not pose a question why [the former President of the Republic] nominated as judge of the Constitutional Court that person who was a collaborator with the [secret] services, and what is that centre of power which still controls the ‘collaborator’.” “Нападни го ВМРО-ДПМНЕ, за да го затскриеш Уставниот суд за чиј член Комисијата јавно се изјасни дека бил соработник на тајните служби. Обвини го Груевски дека ја кочи лустрацијата, за да не те обвини Груевски дека стана кристално јасно дека соработник на тајни служби од Уставниот суд му сруши цела палета на реформи и за да не постави прашање зошто Бранко Црвенковски го предложи за судија на Уставен суд тоа лице кое било соработник на службите и кој е тој центар на моќ кој се уште го диригира ‘соработникот’.” 33. On 24 September 2010 the applicant objected to the imposed time constraints regarding his access to the classified documents in the possession of the Commission (see paragraph 31 above). The Commission, in its turn, immediately informed him that he could consult his personal record compiled by the secret police of the SFRY at the State Archive as well as the documents at the disposal of the Commission, in the coming days until the session. The applicant consulted the documents at the Commission on the same day. 34. Those were the documents forming the applicant’s personal record compiled by the local branch of the SFRY secret police. The record contains around fifty pages of typed reports and forms. It appears from the record that the applicant was on 27 and 28 March 1964 interrogated by the secret police in connection with his involvement in a high-school nationalist group, and was registered as a collaborator under the pseudonym “Lambe”. The “proposal for registration” of 19 May 1964, signed by an inspector, I.K., states that the applicant was approached about collaboration with the secret police and that “he gladly agreed to it, [saying] that he would do anything for the [security] service, as long as his father and the school do not find out”. A “questionnaire” with a handwritten date of 10 February 1965, states, inter alia, that the applicant was recruited on the ground of “compromising material” and that he had not received any material benefit in exchange for his collaboration. That the applicant was recruited on the ground of compromising material is also noted in another questionnaire of 10 January 1968 where, next to the pseudonym “Lambe”, there is a handwritten note “and Lamda”. The record contains a number of reports of various dates between 1964 and 1966, composed mostly by the inspector who relied on “Lambe” as a source of information, about conversations and statements of some high-school and university students on certain political and social issues at the time. “Lambe” provided the information mostly verbally; only a few reports in the file are based on his letters (which were not in the file). There are also copies of two payment receipts dated May and December 1965 and a proposal of 1983 for deregistration of the collaborator “Lamda”. The deregistration referred to a person with the applicant’s name but who in the 1970s was a student at the Technical Faculty, and who in 1983 was working in the municipal branch of the Communist Party. 35. On 27 September 2010 the Commission held a public session on its premises, in a meeting room of around twenty square metres. A large number of media representatives were present. 36. During the session, the applicant denied the Commission’s initial findings, calling into question the veracity of his declaration. He disputed the authenticity of the documents the Commission relied on, as he had neither composed nor signed them, and claimed that the reports contained therein had been forged, or taken from others’ and added to his personal record. He further denied the authenticity of the signatures on the two payment receipts, which indicated that he had received money for his collaboration. He alleged a confusion regarding the two different collaboration pseudonyms (“Lambe” and “Lamda”) appearing in the file, and the identity behind them. He also claimed that the episode from the time when he had still been a minor and had been coerced into having contact with the secret police, due to his involvement with a high-school nationalist group, had been misused. 37. On 28 September 2010 the Constitutional Court responded to the Prime Minister’s statement of 24 September 2010 (see paragraph 32 above) by means of an open letter. The relevant part of that letter reads as follows: “The Constitutional Court finds that this attack is the culmination of the continual attacks on the Constitutional Court. The court therefore points out that the Prime Minister went beyond powers conferred on him by the Constitution, because he has no right to assess the legitimacy of decisions taken by the Constitutional Court, but rather [was obliged] to ensure their unhindered implementation. The court considers that his actions indicate [either] profound ignorance, or total disrespect for the constitutional order, to the point of undermining it. Using a single [pending] case ... to stigmatise a collective body reminds us of events from the past that must not be repeated in a democratic society.” 38. By a decision of 29 September 2010 the Commission held that the applicant’s objection to its initial findings of 16 September 2010 (see paragraph 29 above) was not in accordance with the information available, and that consequently he did not fulfil the additional requirement for holding public office. The decision was based on the applicant’s personal record, and contains a list of twenty-two documents. It summarised the contents of the documents and stated that the applicant had begun collaborating in 1964 and had been deregistered in 1983, that he had provided information on students whose activities were monitored by the security service for political reasons and that, as evident from the two payment receipts, he had in 1965 been paid for the collaboration. The relevant part of the Commission’s decision reads as follows: “... From the data available in the personal record compiled by the [secret police of the SFRY] it was established that in the rubric ‘collaboration relationship’ it is stated that [the applicant] is a collaborator of the [secret police] recruited on the ground of compromising material. It was further established that [the applicant] started his collaboration with the [secret police] as early as 1964 as a high-school student who, when it was proposed to him that he be registered in the collaborators’ network, stated that ‘he gladly accepted the collaboration and would do anything for the service’, and that he was allocated a pseudonym under which he later delivered all the information to the [secret police]. In 1965 he officially became a collaborator of the [secret police]. In the documentation, in ten reports drafted by the Internal Affairs Unit in Strumica, on a number of pages, [the applicant] under his pseudonym appears as a source giving information about his schoolmates, which [information] was used by the [secret police] as operational material on the activities of high-school youth in Strumica. From four reports, it is apparent that also later on, as a student in Skopje, he gave information about students of various faculties, of which in the personal record there are five reports concerning a number of individuals whom the [secret police] monitored and had information that they were dissatisfied with the authorities in view of their weak interest in the situation of the Macedonians in the Aegean [in Greece] and Pirin [in Bulgaria] Macedonia, as well as for various wrongs committed against Macedonians in the western part of Macedonia. From the personal record it was also established that in 1965 the sums of 10,000 and 20,000 [Yugoslav] dinars had been paid to him. His collaboration officially ended in 1983 when he was employed in the Municipality of Karpoš and was deregistered from the active collaboration network. The Commission took into account the oral observations provided by [the applicant], in which he expressed his disagreement with the Commission’s findings. The Commission considers all this information and the files and documents contained in the [applicant’s] record relevant. [It further] considers that that the [applicant’s] declaration [of non-collaboration] submitted to the Commission is not in line therewith [the information, files and documents] and that therefore [the applicant] does not meet the additional requirement for public office in accordance with section 2(1) [and] section 4(4) of the [Lustration] Act.” 39. The Commission’s decision was served on the applicant on 30 September 2010 and classified as “strictly confidential”. 40. In an exchange of correspondence on 1 October 2010 the applicant requested that the Commission provide him with a copy of the file for the purposes of seeking a judicial review of its decision. The Commission informed him that they only had copies (препис), but that the originals were available in the State Archive; they advised him to look for them there. Upon the applicant’s request of the same day, the State Archive, either on the same day or on 4 October 2010, provided him with a copy of his personal record. 41. On 5 October 2010 the applicant pointed out inconsistencies between the files provided to him by the State Archive, the inventory of the documents contained in his record, and the documentation the Commission relied on in its decision. The State Archive responded that they had simply received the personal record as it was, and had listed the documents therein by title without inspecting their contents, as they had not been authorised to do so. Finally, they invited the applicant to consult the contents of his personal record under their supervision. 42. On 8 October 2010 the applicant brought an action for judicial review in the Administrative Court against the Commission’s decision. He complained that the proceedings before the Commission had been unfair and of errors of fact and law. In particular, he complained that the session before the Commission had been held without Rules of Procedure having been adopted, which the Commission should have done ex lege before commencing the proceedings. The public session had not been, as initially planned, followed by proceedings in camera (see paragraphs 31 and 35-36 above), and he therefore had not had an opportunity to fully present his arguments concerning the classified information in the file. 43. The applicant further objected that the time-limit for the preparation of his appeal had been effectively reduced, since he had received the copies of the documents from the State Archive only on 5 October 2010 (see paragraphs 40-41 above), and that there had been obvious discrepancies between the files of the State Archive and the ones of the Commission that he had earlier had access to. The applicant denied the authenticity of the documents in his personal record and suggested obtaining an opinion from an expert in graphology (графолошко вештачење) as regards the signatures on the two payment receipts by comparing them with the letters he had allegedly sent to the inspector of the secret police, to which letters reference was made in the record but which were not available in the file. He also submitted that his identity had been confused with that of the person behind the pseudonym “Lamda”, given that in 1983 he was already a law graduate and was working for the Skopje City administration and thus was not working at the municipal branch of the Communist Party, nor had he ever studied at the Technical Faculty as the record indicated (see paragraph 34 above). He proposed additional evidence, asked that a public hearing be held, and requested leave to invite an expert assistant (стручен помагач), in particular, a certain Mr I.B., a university professor of State security and intelligence and retired staff member of the SFRY secret police, with a view to clarifying the methods and practices of those police concerning the opening and the maintenance of records. 44. In its reply, the Commission firstly listed and made reference to twenty-two documents, and then also mentioned “forty-seven written documents”, on which it based its decision. The Commission’s reply was classified as “strictly confidential”. 45. On 26 October 2010 the Administrative Court held a public hearing in the presence of the applicant and the President of the Commission. The Commission lodged an objection about the Administrative Court’s competence ratione materiae to examine the case. 46. On 2 November 2010 the court held another hearing, at which the Commission withdrew its objection regarding the court’s jurisdiction (see the preceding paragraph 44 above), the expert assistant I.B. (see paragraph 43 above) gave his testimony and the evidence was examined. The public was excluded from the part of the hearing in which confidential material (the applicant’s personal record) was under consideration. 47. By a judgment of 8 November 2010 the Administrative Court dismissed the applicant’s action. In its judgment, this court listed twenty-seven documents, and found the Commission’s files identical to the originals received from the State Archive. The Administrative Court held that the Commission had neither been authorised nor obliged to determine the authenticity of certain evidence that could only be established by an expert opinion (вештачења) in criminal proceedings. It also held that the Commission did not conduct any adversarial proceedings and could admit as fact only the records compiled by the State security services. The applicant’s proposal to obtain an expert opinion with a view to checking the authenticity of the signatures on the payment receipts was rejected. The Administrative Court concluded that it had been immaterial (беспредметно) to determine whether the payments had been received by the applicant, as other (non-pecuniary) benefits could suffice for someone to be deemed a collaborator in terms of the Lustration Act. The judgment also took into account the testimony of the expert assistant I.B. Parts of the judgment were classified as “strictly confidential”. 48. The presiding judge was a certain Ms L.K., who was shortly afterwards, in March 2011, promoted to the newly established High Administrative Court. 49. The relevant part of the Administrative Court’s judgment reads as follows: “... The plaintiff’s [the applicant’s] representative reiterated the arguments advanced in his action for judicial review, and expanded on them by stating that the Commission’s decision was ill-founded ... [He argued that] the Commission had not assessed the written evidence, because there was none. [In particular,] there was no statement from the plaintiff that he had agreed to collaborate with the [secret police], there was no written consent from him in this regard, and there was no written decision of the [secret police] in which the plaintiff’s consent to collaboration was accepted. Moreover, the Commission had made only a mechanical analysis by quoting and paraphrasing the documents available in personal record no. 12736 and on that basis had reached the wrong conclusion, failing to establish the facts ... In view of the complexity of the case and for the purposes of clarification, the [Administrative] court, upon a proposal of the plaintiff, heard I.B. from Skopje in the capacity of an expert assistant (стручен помагач). The court also consulted (изврши увид) and compared the plaintiff’s personal record available in the State Archive with the copy of the same record delivered to the plaintiff. The court, having assessed the [plaintiff’s] arguments in the statement of claim, the [Commission’s] reply [thereto], and the submissions made by the expert assistant I.B., [and] having examined the impugned decision within the scope of the action and in terms of section 37 of the Administrative Disputes Act, found: The action is ill-founded ... According to section 10 of the [Administrative Disputes] Act, the administrative decision could be contested if the law was wrongly applied ... or if the proceedings which preceded the contested decision were not conducted in accordance with the rules of procedure, and in particular, if the facts were not established correctly, or if the facts were established correctly but assessed wrongly ... According to section 4(4) of the [Lustration] Act, collaboration, within the meaning of that Act, is conscious, secret, organised and continuous cooperation and activity with the State security services, established by a written document, in the a capacity of a secret collaborator or secret informant (hereafter ‘secret collaborator’) with a view to collecting information ... regarding certain persons, in violation of [their] basic rights and freedom on ideological-political grounds, as a result of which a material gain or other benefits in employment or career advancement had been obtained [by the collaborator] ... Relying on the above, the court found that the Commission, acting within its competence ... and after having correctly conducted the fact-verification proceedings, made a lawful decision ... It appears from the files that the plaintiff, on the basis of a written document, consciously, secretly, continuously and in organised way collaborated with the [secret police], which collected information that were subject to processing, storage and use ... Such collaboration is apparent from the reports ... which could be found in the original personal record kept at the State Archive. Having in mind that the Commission only checks the facts concerning collaboration or non-collaboration with the State security services, and given that this [fact-verification procedure] is not an adversarial procedure, the records created by the services and their legal predecessors are to be accepted as facts [thus as reliable evidence] ... In this court’s assessment, the argument that the plaintiff was prevented from active participation in the proceedings before the Commission ... is ill-founded, since the Commission provided him with access to all the evidence. Regarding [the plaintiff’s] argument that ... the Commission’s session had been held without Rules of Procedure [having been adopted beforehand] ... this court finds it irrelevant ... The Rules are an internal regulation of the Commission and [thus only] regulate its internal functioning ... and not the fact-verification procedure [which] is prescribed by the [Lustration] Act. This court finds ill-founded [the plaintiff’s] complaint that he had not been given an opportunity to contest the [factual findings of the Commission]. [He argued in particular that] ... the [Commission’s] session had ended after its first part, at the moment when he had expressed his disagreement with the ‘facts’ [underlying] the [Commission’s] findings ... in respect of which he had [also] made written submissions. [In his view] the Commission was obliged to hold a hearing, and not to treat the case as if no observations had been provided in accordance with section 29. [Such complaints] have no support in the evidence available in the file. As evident from the file, the Commission on 27 September 2010 held a public session in the part in which no classified information was under consideration. Having in mind that earlier, on 24 September 2010, the plaintiff had consulted the files and familiarised himself with their content, he had had the opportunity to provide his own observations at the session. The court also finds ill-founded the plaintiff’s argument that the reports [contained in his personal record], in legal terms, could not be relied on to establish the facts, since they had many shortcomings, both formal and substantive, in particular none of the ten reports had been signed by an authorised person of the [secret police], no letter allegedly sent by the plaintiff had been appended to the reports, ... none of these reports had been entered in the official records of the [secret police], and all reports quote ‘Lambe’ as a source of information, while the Commission [cites] another pseudonym, ‘Lamda’. [The court finds that argument by the plaintiff ill-founded because] the operation of the [secret police] was clarified by the expert assistant at the public hearing, who explained that it had had its own operational methodology for the purpose of gathering information, that was then subject to further processing, collection and use ... The court finds that assessment of the methodology of the [former secret police] is not in the competence of the Commission. The court did not accept the plaintiff’s complaints that he was recruited as a collaborator while still a minor, because it is apparent from the evidence that he entered into collaboration and gave reports as an adult. The court finds ill-founded the [plaintiff’s] arguments about errors of fact, [in particular those where he complains] that the Commission did not take any evidence to establish whether the signatures on the payment receipts were identical with each other as well as with the plaintiff’s signature, which could have been easily established by obtaining an opinion from an expert in graphology, those whereby he calls into question the authenticity of the reports he received from the State Archive and [the veracity of] of their content, those [where he argues] that ... the [secret police] registered him as a collaborator on the basis of bogus (спакувани) reports which were planted (подметнати) in his file and that he was not aware of nor had he consented to that [registration], as well as that there were obvious misinterpretation of the facts, since the file on a minor oppressed for his Macedonian nationalism had been transformed into the personal record of a secret collaborator. This [the court’s dismissal of these complaints] comes as a result of the fact that the Commission, after checking and verifying the data that was made available to it, correctly established that the plaintiff ... had been registered as a secret collaborator ... The Commission was establishing the facts was neither authorised nor legally bound to take evidence to establish the facts that could be established only through expert reports in criminal proceedings. ... The procedure is not adversarial and the records of the services of the former system are to be accepted as genuine [, meaning as reliable] evidence. The plaintiff in his submissions pointed to possible criminal offences which, in addition to the Criminal Code, are also sanctioned by sections 36 and 37 of the [Lustration] Act. The proceedings before the Commission do not bar the plaintiff from initiating other proceedings in which he could prove his allegations. On the other hand, after checking the plaintiff’s personal record, the court established that only a few reports were delivered in writing, and that most of the reports were provided through direct contacts. In view of the above the court did not grant the request ... for the letters written by the plaintiff mentioned in [some] reports drafted by the inspector of the State security service to be obtained with a view to obtaining an opinion from an expert in graphology on the signatures and the handwriting on the payment receipts. It is also immaterial whether payments were made or not, since this is only one of the conditions for establishing that collaboration took place, bearing in mind that section 4(4) of the [Lustration] Act, when stipulating what is considered collaboration, states that [not only] material gain [but also] other benefits or career advancement [may suffice].” 50. In his appeal of 25 November 2010 to the Supreme Court, the applicant reiterated his earlier arguments and expressed misgivings about the overall fairness of the proceedings and errors of fact and law. He pointed out that the number of pages and the inventory of the documentary evidence quoted in various acts produced by the State authorities had differed. He further complained that the Administrative Court had completely misinterpreted the submissions made by the expert assistant, and annexed an additional written statement by I.B. He also objected to the Administrative Court’s finding on the Commission’s powers, and complained that the Administrative Court had therefore failed to fully establish the facts, and had not ordered any expert opinion to establish or otherwise the authenticity of the documents and signatures on the payment receipts. The Commission submitted a reply to the applicant’s appeal, whereupon the applicant provided a response to the Commission’s reply. 51. By a judgment of 2 March 2011 the Supreme Court dismissed the applicant’s appeal and upheld the judgment of the Administrative Court. The Supreme Court stated, inter alia, that it had checked the “original documentation” and concluded that the facts had been correctly established. It further addressed and analysed the applicant’s remaining complaints, and concluded that they were of no relevance and could not produce a different outcome. As for the authenticity of the documents, including the signatures on the receipts, the Supreme Court dismissed the applicant’s arguments, finding that no formal procedures existed at the time when these documents were produced. 52. Judge V.S. – who would later be appointed a judge of the Constitutional Court to fill the vacancy caused by the applicant’s dismissal (see paragraph 57 below) – sat in the panel and, according to the applicant, also acted as a rapporteur (известител) in the case. 53. The relevant part of the Supreme Court’s judgment reads as follows: ... From the evidence taken during the proceedings, primarily the reports in the personal record established in respect of the appellant, it can be indisputably concluded that he, on the basis of a written document, consciously, secretly, continuously and in an organised manner collaborated with the [former secret police]. Relying on the statements of the secret collaborator – the appellant – the [secret police] gathered information that was processed, stored and used by the [secret police] ... In such a way, the human rights of those people [who were then followed by the State security service] were violated on political or ideological grounds. Bearing in mind the definition of collaboration contained in the [Lustration] Act, the Administrative Court correctly concluded that the appellant had at the material time the status of a secret collaborator or informant. The arguments adduced in the appeal regarding discrepancies between the data obtained from the State Archive and those relied on by the Commission, whereby the appellant disputes the authenticity of the evidence, are ill-founded. In the Supreme Court’s opinion, the facts established by the first-instance court are correct and complete, as they are based on careful and thorough assessment of every piece of evidence separately and of all the evidence taken together ... Assessing the complaints regarding the facts, the Supreme Court also checked the original documentation and finds these complaints ill-founded, since the appellant did not submit any evidence that could call into question the facts as established by the first-instance court. The Supreme Court finds irrelevant in respect of the possibility of a different outcome the complaints that the applicant was not a collaborator but an oppressed person on whom a political file was opened because of ideas he had, as a minor during high-school days, on the independence of the Macedonian people. Specifically, the appellant was as a high-school student initially registered by the [secret police] for hostile activities and Macedonian nationalism. However, he continued to collaborate with the service and was approached about being registered in the network of collaborators. In 1965 the appellant was officially registered as a collaborator, when he had already reached the age of eighteen. From the documents available it is apparent that the applicant collaborated with the State security services as an adult. The appellant’s submissions that he never consented to collaboration and that there is no evidence of registration or deregistration, could not lead to factual findings different from those already established by the first-instance court. According to the expert assistant’s statement at the public hearing before the Administrative Court, the consent of the collaborator was in no way needed, given the secrecy of the procedure. The proposal for deregistration is in the name of Trendafil Ivanovski, with an identical file number to that under which he had been registered as collaborator. These data correspond with what is already recorded in various documents and about which there is no doubt that they refer to the appellant. According to the Supreme Court, these data could not be disregarded just because the pseudonyms do not match. The complaints that the reports composed by the [secret police], based on the information provided by the appellant, could not be regarded as [reliable evidence], are ill-founded. The Supreme Court finds that the procedure for receiving information was not strictly formalised. The reports were, as clarified by the expert assistant, usually given verbally. From the above, it is apparent that to be considered as genuine, it was not necessary that the content of the record, or of the report composed by an authorised person of the [secret police], be supported by a written statement by the collaborator. The appellant denies the authenticity of his signature on the payment receipts. The Supreme Court finds that, in a situation in which no rules (правилник) for payment existed, given that, as stated by the expert assistant, the payments were usually made in cash, it would suffice to have the name of the collaborator mentioned as a recipient [of the money], to conclude that material gain was obtained. As the first-instance court correctly and fully established the decisive facts it also correctly applied the substantive law when it dismissed the appellant’s action.” 54. The applicant was served with the Supreme Court’s judgment on 9 March 2011. 55. On 11 March 2011, the Commission concluded that its decision of 29 September 2010 had become final. 56. On 11 April 2011, relying on the Lustration Act and the Commission’s conclusion of 11 March 2011, the Parliament acknowledged that the applicant had not fulfilled the additional requirement, and accordingly dismissed him from the office of judge of the Constitutional Court, despite the experts’ debates about the constitutionality of such an action. On the same day, the Parliament’s decision was published in the Official Gazette. 57. On 14 April 2011, during its last session before early elections, the Parliament appointed Judge V.S. (see paragraph 52 above) as a judge of the Constitutional Court to the position vacated by the applicant’s dismissal. 58. The proceedings were closely followed by the international community present in the respondent State, and were referred to in various reports, most notably the European Commission’s Progress Report of 9 November 2010, which states that the ongoing lustration proceedings against the applicant “have raised concerns about pressure on the independence of the judiciary” (see paragraph 109 below). The United States Department of State Human Rights reports of 2010 and 2011 also made references to the applicant’s case and the tensions between the Government and the Constitutional Court. 59. Meanwhile, on 8 March 2011 the Commission filed a criminal complaint with the Skopje Public Prosecution Office against the applicant alleging that by submitting a false declaration of non-collaboration with the State security services he had committed the criminal offence of submitting false evidence defined in Article 366a of the Criminal Code (see paragraphs 79 and 97 below). 60. On 29 April 2011 the public prosecutor dismissed the criminal complaint, finding no elements of the offence in question. In her reasoning, the public prosecutor held in particular that in the proceedings before the Commission evidence was not taken or assessed in an adversarial manner or in accordance with the principle of immediacy, as only the official records of the State security services were used as relevant for the outcome of the proceedings. The applicant’s declaration thus did not constitute evidence but an act giving rise to the lustration proceedings. | 1 |
test | 001-184818 | ENG | ROU | COMMITTEE | 2,018 | CASE OF DUMITRESCU 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 | 001-168931 | ENG | RUS | CHAMBER | 2,016 | CASE OF TRAPEZNIKOVA AND OTHERS v. RUSSIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicants, Ms Natalya Borisovna Trapeznikova, Ms Yuliya Sergeyevna Trapeznikova and Ms Anastasiya Sergeyevna Antonova, are Russian nationals who were born in 1969, 1985 and 2004 respectively and live in Novosibirsk. The applicants are members of the family of Mr Sergei Antonov. 6. On 1 June 2006 Mr Antonov started serving a three-year prison sentence in correctional colony no. IK-8 in the Novosibirsk Region. When examined by a doctor on 5 June 2006, he stated that following a craniocerebral injury he had been under psychiatric supervision since 1996 and that he had been suffering from drug addiction since 2004. 7. On 4 May 2006 Mr Antonov had swallowed several metal objects, including a spoon, and had cut himself on his stomach. On 5 May 2006 he had been taken to hospital and had been treated until 19 May 2006. 8. On 20 July 2007 Mr Antonov was transferred to disciplinary cell no. 14 for smoking outside the designated area. On 22 July 2007 he complained of a headache and of feeling ill. At 7.10 p.m. Doctor M. examined Mr Antonov, noted that he had high blood pressure and gave him an injection. On the doctor’s recommendation, Mr Antonov was transferred to another cell in the disciplinary section, where he was detained alone. As requested by the doctor, he was provided with bed linen. Doctor M. examined Mr Antonov again at 9.25 p.m. and noted that his condition had improved. At 9.40 p.m. the cell where Mr Antonov was held was locked and the alarm system was turned on. The guards in charge of the disciplinary cells observed Mr Antonov at 1.06 a.m. on 23 July 2007 through a peephole in the cell door. He was lying on his bed. During the next round of visits at 1.30 a.m. the guards saw Mr Antonov, hanging. They reported this to the duty officer. After entering the cell, the officers discovered Mr Antonov hanging by a ligature fashioned out of a bed sheet. They cut the rope and put his body on the floor. Doctor M. examined Mr Antonov’s body and noted no injuries apart from the ligature mark on his neck. 9. According to the death certificate, Mr Antonov died on 22 July 2007. 10. According to an autopsy conducted on 24 July 2007, the cause of death was asphyxiation by hanging. In addition to the ligature mark on his neck, the forensic expert Ch. documented bruises on the deceased’s head behind the left ear, at the corner of his right eye, on the right cheek and on the right side of the lower jaw. The expert decided against conducting a histological examination given that he had no doubts about the cause of Mr Antonov’s death. 11. On an unspecified date the acting head of the correctional colony conducted an internal inquiry. He established that despite Mr Antonov’s condition the administration of the correctional colony had not provided him with any psychiatric supervision or treatment. It had been obvious from Mr Antonov’s case file that he had had suicidal tendencies. 12. On 28 July 2007 the deputy city prosecutor K. refused to institute a criminal investigation into Mr Antonov’s death. The investigator based his decision on the reports filed by Doctor M. and the officers who had discovered Mr Antonov’s body, the report on the inspection of the cell where Mr Antonov had been found and on his body, and on his medical file. He also questioned prisoners Bel., F. and Ber. who had been detained with the deceased in cell no. 14, where he had been held prior to his removal to a cell where he was found. They submitted that they had not had any conflicts with him. 13. On 31 July 2007 the first applicant asked the regional prosecutor to institute a criminal investigation into Mr Antonov’s death. Referring to the numerous injuries on Mr Antonov’s body, she challenged the official version that he had committed suicide by hanging himself. 14. On 22 August 2007 the city prosecutor P. quashed the decision of 28 July 2007 and ordered a further inquiry into the circumstances of Mr Antonov’s death. Referring to the first applicant’s complaint, he considered it necessary to determine the existence and origin of the injuries on Mr Antonov’s body. 15. On 28 August 2007 deputy city prosecutor K. refused to open a criminal investigation into Mr Antonov’s death. The prosecutor again questioned F., Ber. and Bel., who had been detained with Mr Antonov in cell no. 14 on 22 July 2007. They submitted that it had been very stuffy in the cell and that at around 4 p.m. Mr Antonov had complained of a headache. He had been sitting at the table, had stood up and had then fallen down, hitting his head against the table. They had not noticed any injuries on Mr Antonov. The prosecutor concluded that Mr Antonov had committed suicide by hanging himself. 16. On 13 September 2007 the first applicant appealed against the decision of 28 August 2007. 17. On 23 September 2007 the deputy regional prosecutor A. quashed the decision of 28 August 2007 and ordered a further inquiry. He noted that it was necessary to obtain information concerning Mr Antonov’s health, to determine whether the medical assistance provided to him had been sufficient and prompt and to establish whether it had been known that Mr Antonov had intended to commit suicide. The prosecutor also ordered the noose used by Mr Antonov to be found and for it to be examined. Lastly, the prosecutor noted that the inquiry had failed to take into account the injuries on Mr Antonov’s head and that it was necessary to determine their origin and whether they had had any connection with his death. 18. On 18 October 2007 investigator Fom. refused to open a criminal investigation into Mr Antonov’s death, repeating verbatim the findings of the previous inquiry. 19. On 29 October 2008 a supervising prosecutor quashed the decision of 18 October 2007 as premature and unsubstantiated. 20. On 8 November 2007 investigator Fom. again refused to open a criminal investigation into Mr Antonov’s death. In addition to the earlier findings the investigator examined Mr Antonov’s medical file. He again questioned Doctor M. about the state of Mr Antonov’s health on 22 July 2007. The doctor explained that following the treatment he had been given Mr Antonov had been in a satisfactory condition and that it had been possible to leave him alone in a cell. The investigator also questioned the forensic medical expert Ch., who had conducted the autopsy. The expert considered that the injuries on Mr Antonov’s head could have been due to convulsions which had caused an impact with blunt, solid objects. 21. On 12 November 2007 the supervising prosecutor dismissed the first applicant’s complaint against the decision of 8 November 2007. 22. On 18 January 2008 the first deputy head of the regional investigative committee quashed the decision of 8 November 2007 and ordered a further inquiry, noting that the prosecutor’s instructions of 23 September 2007 had not been followed. 23. On 1 February 2008 investigator Am. refused to institute criminal proceedings. Relying on the materials of the previous inquiries, the investigator confirmed the earlier finding that Mr Antonov had committed suicide. The investigator could not establish the cause and time of the injuries on Mr Antonov’s body, but he noted that they were not related to his death. 24. On 16 September 2008 the head of the regional investigative committee quashed the decision of 1 February 2008. 25. On 30 September 2008 investigator V. again refused to open a criminal investigation, relying on the earlier findings. On 13 October 2008 that decision was quashed on the grounds of the incompleteness of the inquiry. 26. The investigating authorities subsequently refused to open a criminal investigation into Mr Antonov’s death on 25 October 2008 and 2 January 2009. On 8 December 2008 and 12 January 2009 respectively the supervising prosecutor quashed those decisions and ordered a further inquiry into the matter, noting each time that the inquiry had been incomplete and the findings contradictory. In particular, on 8 December 2008, the regional prosecutor noted that the reports of 23 July 2007 and 23 October 2008 concerning the inspection of the cell where Mr Antonov had been found had given different and mutually contradictory descriptions of the layout of the cell. 27. On an unspecified date a senior investigator, S., started another inquiry in response to the first applicant’s complaint. The investigator questioned the correctional colony officers who had been on duty on 22 July to 23 July 2007 and had seen or observed Mr Antonov on those days. She also saw Ozh., the prison psychiatrist, and a drug counsellor, Kot. Ozh. stated that he had never seen Mr Antonov or prescribed him any psychiatric supervision or treatment. After studying Mr Antonov’s medical file, the investigator established that he had a history of drug addiction, one instance of self-harming and had undergone treatment in a psychiatric institution prior to his incarceration. The investigator noted that the cell where Mr Antonov had been found dead had been mistakenly indicated in the inquiry case file as no. 38 and conducted an examination of cell no. 00. On 11 February 2009 the investigator talked to the forensic expert Ch., who submitted that his superior had advised him against making any written statements about the autopsy. If necessary, the investigator could question him as a witness within the framework of the criminal proceedings. On 13 February 2009 S. concluded that Mr Antonov had committed suicide and refused to open a criminal investigation into his death. She also considered that the injuries found on Mr Antonov’s head had resulted from convulsions which had caused his body to repeatedly strike against a metal grill. 28. The senior investigator’s decision was subjected to judicial review at two levels of jurisdiction. On 11 March and 27 April 2009 the Dzerzhinskiy District Court of Novosibirsk and the Novosibirsk Regional Court respectively upheld the investigator’s findings on Mr Antonov’s death. | 1 |
test | 001-160215 | ENG | TUR | CHAMBER | 2,016 | CASE OF GÜLCÜ v. TURKEY | 3 | Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković | 4. The applicant was born in 1992 and lives in Diyarbakır. 5. On 14 July 2008 a demonstration was held in Diyarbakır to protest about the conditions of detention of Abdullah Öcalan, the leader of the PKK (Kurdish Workers’ Party), an illegal armed organisation. 6. According to a report prepared by four police officers on 21 July 2008 following the examination of video footage of the demonstration recorded by the police, on 11 July 2008 the Fırat News Agency, a website which was controlled by the PKK, had published a declaration of the Democratic People’s Initiative of Turkey and Kurdistan. The declaration contained instructions to hold meetings and marches in each town and city on 14 July 2008 to show support for Abdullah Öcalan. The report also stated that on the website www.rojaciwan.com, which was also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement to be held by the Party for a Democratic Society (Demokratik Toplum Partisi (DTP)) in Diyarbakır on 14 July 2008 had been published. 7. The report stated that the police had received information according to which the Diyarbakır branch of the DTP was the organiser of the press statement to be held and MPs, mayors and local politicians from the DTP as well as members of a number of non-governmental organisations would gather in front of the DTP’s Diyarbakır party office at around 5.30 p.m. and march to Koşuyolu Park, where they would make a press statement. The police took the necessary measures as they suspected that there could be violent protests during the march, which could become a demonstration for the PKK. 8. According to the police report, people started to assemble by 4.30 p.m. in front of the DTP party office. Mayors and MPs were among the demonstrators. By 5.50 p.m. approximately 3,000 people had gathered. Thereafter, demonstrators started to march, arriving at 6.30 p.m.at Koşuyolu Park, where the press statement was made. At 7 p.m. while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones at the police officers and the cars parked in the neighbourhood. Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, such as “Every Kurd is Öcalan’s fedai” (“Her Kürt Apo’nun Fedaisidir”), “We will drop the world without Öcalan on your head” (“Öcalansız dünyayı başınıza yıkarız”), “The Youth to Botan, to the free country” (“Gençlik Botan’a, Özgür Vatana”), “Salutations to İmralı ” (“Selam Selam İmralı’ya Bin Selam”), “With our blood, with our life, we are with you, Öcalan” (“Canımızla, kanımızla, seninleyiz Öcalan”) , “Long live President Öcalan” (“Biji Serok Apo”), “Martyrs are immortal” (“Şehîd Namirin”), “No life without the Leader, Mr./Esteemed Öcalan” (“Başkansız yaşam olmaz, Sayın Öcalan”). They carried banners which contained slogans such as “Stop the torture in İmralı” (“İmralı işkencesine son”) and “We make war for life, we die for peace” (Yaşamak için savaşırız; Barış için ölürüz”); photographs of Abdullah Öcalan and flags of the so-called “Confederation” were also brandished. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the neighbourhood with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to use proportionate force against the group, who were holding an illegal demonstration. The police intervened using truncheons, water and tear gas. The police report also noted that some people had taken down the Turkish flag in the schoolyard of the Diyarbakır nursery school. 9. At the end of the report it was noted that, according to the video footage, the applicant had thrown stones at the police together with a number of other persons and had acted with the group which had taken down the Turkish flag at the Diyarbakır nursery school. 10. The report of 21 July 2008 also contained twenty-four photographs extracted from the video footage recorded by the police. In four photographs, the applicant is seen in a group of young men while, according to the police, throwing stones at the security forces. In two photographs, he is seen while standing together with a group of people by a flag pole. A total of six photographs concern the taking down of the Turkish flag; one photograph contains an image of a knocked-over waste container; and one other photograph shows a damaged passenger van. The remaining photographs contain images of demonstrators standing in front of a building or walking. 11. The applicant was arrested on 21 July 2008. According to the arrest and transfer report, the video recording of the demonstration by the police showed that the applicant had thrown stones at the police officers and had been in the crowd which had taken down the Turkish flag in a schoolyard. The officers who drafted the report stated therein that the applicant had been informed of his rights when arrested and had been transferred to the children’s branch of the Security Directorate, as he had been found to be a minor subsequent to a medical check. The applicant noted “I am not signing” and put his signature under that sentence on the report. 12. On 22 July 2008 the applicant made statements before the Diyarbakır public prosecutor in the presence of a lawyer. His statement reads as follows: “...I am a primary school graduate and a peddler. On 14 July 2008 my brother and I were selling watermelons in front of Koşuyolu Park in Diyarbakır. Suddenly, a large group of demonstrators chanting the slogan “Long live President Öcalan” (“Biji Serok Apo”) approached us. Subsequently, the police intervened and took a number of persons into custody. Some individuals among the crowd then began throwing stones at the police officers. I also joined the demonstrators at the beginning and chanted the slogan “Long live President Öcalan”. I then threw stones at the police officers. After a short while, some people went to a school. I also went with them. Some of them climbed on the flagpole in the school garden. They took down the Turkish flag and replaced it with a PKK flag. I was not involved in taking down the Turkish flag. I did not have any particular purpose when I chanted the slogan and threw stones at the police. I only acted together with the crowd. I do not know why there was a demonstration. I do not have any connection with the illegal organisation. The person in the photograph that you have shown is me.” 13. On the same day the applicant was brought before a judge of the Fifth Division of Diyarbakır Assize Court. He maintained that his statements to the public prosecutor had reflected the truth. His lawyer asked the court not to remand the applicant in custody, submitting that the applicant was a minor and therefore not capable of realising the meaning and consequences of his acts. 14. The judge remanded the applicant in custody in view of the existence of a strong suspicion that he had committed the offences of “committing an offence on behalf of an illegal organisation without being a member of the organisation”, in breach of Law no. 2911, and “dissemination of propaganda in support of a terrorist organisation”, and having regard to the evidence. 15. On 22 July 2008 the Diyarbakır public prosecutor filed a bill of indictment against the applicant with the Fifth Division of Diyarbakır Assize Court, which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time. The applicant was charged with membership of an illegal organisation as he was considered to have committed a crime on behalf of an illegal organisation under Article 314 § 2 of the Criminal Code (Law no. 5237) on the basis of Articles 220 § 6 and 314 § 3 of the same Code, resisting the security forces by way of throwing stones under sections 23(b) and 33(c) of the Meetings and Demonstration Marches Act (Law no. 2911), disseminating propaganda in support of the PKK under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and denigration of the symbols of the sovereignty of the State under Article 300 § 1 of the Criminal Code. 16. On 21 October 2008 the Fifth Division of Diyarbakır Assize Court held the first hearing in the case. During the hearing, the applicant reiterated his statements of 22 July 2008 and asked to be released. He maintained that he had participated in the demonstration, chanted the slogan “Long live President Öcalan” and thrown stones at the police when they intervened. He submitted that he had not been among those who had taken down the Turkish flag. 17. The public prosecutor asked the court to convict the applicant under Articles 300 and 314 of Law no. 5237, section 7(2) of Law no. 3713 and sections 23(b) and 33(c) of Law no. 2911. The public prosecutor also requested that the sentences be reduced taking into account the fact that the applicant had been aged between 15 and 18 years old at the material time. 18. On 11 November 2008 the Fifth Division of Diyarbakır Assize Court rendered its judgment in the case against the applicant. The court noted, at the outset, a summary of the applicant’s defence submissions, the public prosecutor’s observations on the merits of the case and the following evidence in the case file: the applicant’s statements before the public prosecutor and the judge on 22 July 2008; his identity documents and a document showing that he did not have a previous criminal record; the arrest and transfer report of 21 July 2008; an incident report dated 14 July 2008; printed versions of documents downloaded from the Internet; the police report of 21 July 2008 describing the events of 14 July 2008 and the applicant’s participation in those events; photographs extracted from the video footage recorded by the police; and medical reports. 19. In its judgment, the Assize Court held as follows: “... | 1 |
test | 001-171501 | ENG | UKR | CHAMBER | 2,017 | CASE OF MOROZ v. UKRAINE | 4 | No 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 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Síofra O’Leary | 5. The applicant was born in 1967 and is currently serving his prison sentence. 6. At about 10 a.m. on 1 June 2005 O., the president of the Ukrainian Dental Association, was shot at his office with a rifle which the applicant had brought. The applicant was present at O.’s office at the time of the event. He asked for the police and an ambulance to be called and, once the police arrived, stated that an accident had happened. He explained that he and O. were interested in hunting and he had brought the shotgun to O. as a present. While he had been demonstrating the gun to O., the latter had wanted to see it closer and had pulled it towards himself; the gun had accidentally gone off. According to the applicant, once he had replied to the questions of the police, handcuffs were put on him; he was searched and samples were taken from him for forensic examination. His request for a lawyer was allegedly ignored. 7. On the same date the applicant’s arrest report was drawn up which stated that the applicant had been arrested for the murder of O. at 10 p.m. at the police station. He was subsequently questioned in the presence of K., his lawyer. He pleaded not guilty and repeated his statements made earlier. According to the applicant, his lawyer immediately indicated to the investigator that, under the Code of Criminal Procedure, the applicant had to be provided with the possibility to talk with him in private before the questioning, with a view to defining the legal defence strategy. Having heard that, the applicant insisted on such a meeting. The investigator, however, rejected that request on the ground that the applicant would be able to talk to his lawyer later. 8. On 2 June 2005 a reconstruction of the crime was carried out in the presence of the applicant’s lawyer. 9. On 3 June 2005 the applicant’s pre-trial detention was ordered by a court. 10. On 6 June 2005 L. was admitted to the proceedings as the applicant’s second lawyer. 11. On 9 June 2005 the applicant was charged with murder and questioned in the presence of his lawyers. He pleaded not guilty and repeated his previous statement that O. had been shot by accident. 12. On 11 August 2005 the applicant was questioned in the presence of K. The applicant repeated his previous statements. 13. On the same date the applicant and the lawyer K. became aware of the results of a number of forensic examinations in the case. They made no observations in this connection. 14. On 17 November 2005 criminal proceedings were instituted against the applicant for illegal production, possession and storage of firearms. On the same day the applicant was charged with the above offence and questioned in the presence of K. Those proceedings were subsequently joined to the murder case against the applicant. 15. On 16 January 2006 the case was referred to the Kyiv City Court of Appeal (“the Court of Appeal”) for trial. Throughout the trial the applicant denied the murder charge and consistently claimed that O. had been shot by accident. 16. On 19 May 2006 the Court of Appeal, acting as a first-instance court, found the applicant guilty as charged and sentenced him to fifteen years’ imprisonment. The court found that on 27 May 2005 the coordinating council of the Ukrainian Dental Association had held its meeting in Kyiv and the applicant had run for the position of acting executive director of the Association. The victim, O., had proposed another candidate for the same position and that candidate had been elected. The applicant had therefore decided to take revenge and had come to the office of O. with a shotgun and fired twice at O.’s head. The applicant had also been found guilty of modifying the shotgun in question prior to the incident. 17. The Court of Appeal noted that although the applicant had never pleaded guilty and had claimed that the incident had been an accident, his guilt was proved by the testimonies of witnesses and the results of forensic examinations. In particular, O.’s wife had testified that she had been in the neighbouring office when the incident had taken place and when she had entered her husband’s office she had seen the applicant smiling with satisfaction. She had also maintained that her husband had not liked hunting and therefore would not have accepted a shotgun as a present. The negative attitude of O. to hunting had also been confirmed by his brother. O.’s secretary and one of his colleagues had also confirmed that the applicant had been smiling when they had entered the office after the incident. 18. Several witnesses had also confirmed that the applicant had shown dissatisfaction with the fact that he had not been elected to the position of the executive director of the Dental Association. 19. The forensic expert, questioned in the court hearings, had confirmed the conclusions of the examination that the shots had been fired from some distance and not from close range, as the applicant had suggested, given that traces of metals and gunpowder, typically found following close-range shots, had not been found on the victim. The court also noted that the outcome of the ballistic examination as to the distance, trajectory and angle of the entry wounds had not matched the applicant’s version of events. 20. The applicant appealed. He submitted, inter alia, that his defence rights had been violated as he had not been given an opportunity to talk to his lawyer in private before his questioning at the police station on 1 June 2005, with no further details given. 21. On 28 November 2006 the Supreme Court, in the presence of the applicant and his two lawyers, upheld the decision of the Court of Appeal, noting the aggregate of evidence against the applicant. 22. From 5 July 2005 to 25 January 2007 the applicant was detained at Kyiv pre-trial detention centre no. 13 (“the SIZO”). 23. According to the applicant, the facility was often overcrowded with the number of detainees exceeding the number of beds. It was infested with insects, cockroaches and mice. The quality and quantity of food was unsatisfactory. There was only one pair of scissors and one hair clippers for the whole SIZO and they were not disinfected prior to or after use. As a result, the applicant contracted Hepatitis B. 24. From 8 July until 8 November 2005 he was detained in cells nos. 18 and 116 in conditions which were detrimental to his health and incompatible with human dignity. In particular, those cells had no access to natural light as the windows were obscured by metal slats. The walls were permanently wet and covered with mould. The applicant had to share cell no. 116, which measured about 12 square metres, with three other detainees who were heavy smokers. The artificial lighting was not sufficiently powerful with the result that the cells were dim. Their clothes and linen were always wet and cold. 25. On 7 September, 7 and 21 November 2006 the applicant requested that the investigator allow visits from his family but to no avail; the investigator attempted to extort money from him for granting permission to see the relatives. 26. On 5 February and 4 July 2006 the applicant asked the Court of Appeal to allow him to correspond with his relatives but received no answer. He unsuccessfully complained of these matters to the prosecutor’s office on a number of occasions. 27. The applicant was not allowed to visit the SIZO church. His requests to the SIZO governor of 15 July and 1 August 2005 to meet with a priest also remained unanswered. On 6 and 7 September 2005 the applicant further complained to the SIZO administration that his religious literature and some items of a religious nature had been seized by the SIZO staff. On 23 September 2005 a “talk” was held with the applicant by one of the prison staff on account of his complaints during which it was explained to him that nothing untoward had happened. On 1 October 2006 the applicant complained to the Prosecutor General about the violation of his right to practise his religion but received no reply. 28. During his stay at the SIZO the applicant was held in twelve different cells (including cells nos. 18 and 116) and was moved fourteen times. 29. The Government could not provide any information about the number of inmates in the cells at the relevant time or regarding the conditions of the floor, walls and linen because the compulsory period for keeping the relevant documents had expired and the records had been destroyed. 30. They stated that the general detention conditions in the SIZO had been satisfactory and in compliance with the domestic standards: all the cells had had windows and had been equipped with sufficient artificial lighting; the applicant had been provided with adequate nutrition in accordance with the applicable standards. Scissors and other hairdressing implements had been disinfected after each use in accordance with the relevant regulations. That fact had been confirmed by the results of an investigation conducted by the Ministry of Health and the prosecutor’s office following the applicant’s complaints. 31. The Government submitted, having provided the relevant documents, that the applicant had requested family visits before the relevant authorities only on 10 and 20 October and 29 December 2005 and on 11 January and 5 February 2006 and had asked for permission to send correspondence to his relatives on 10 and 27 October 2005 and 5 February and 8 August 2006. All his requests were rejected for security reasons. 32. The applicant had been free to ask the investigator in his case or a court to allow him to meet with a priest but had failed to do so. He had also been entitled by law to possess religious literature and other items of a religious nature and never raised any complaint in this connection either before the SIZO governor or with the prosecutor responsible for observing compliance with the law in the detention facilities. 33. No medical aid was provided to the applicant in respect of his heart and teeth problems. On 3 June 2006 the applicant asked the SIZO governor to conduct a medical examination as he believed he had contracted hepatitis B because of the failure of the SIZO staff to respect hygiene rules. This request was rejected; so was another request for a special diet in view of his possible hepatitis infection. On 2 November 2006 the applicant asked the Minister of Health to order a medical examination in view of his possible hepatitis infection, to no avail. No copies of the mentioned requests have been provided by the applicant. 34. According to the Government, during his stay in the SIZO the applicant never went to the medical unit on account of his suffering from hepatitis B, heart pain or problems with his teeth and never lodged any complaints regarding a lack of medical assistance. His state of health did not necessitate a special diet. 35. Following a liver-related complaint that the applicant was suffering from, he was diagnosed with bile-duct dyskinesia (дискінезія сечовивідних шляхів) and from 20 October to 15 November 2006 he underwent inpatient treatment in the SIZO medical unit. A number of laboratory tests were carried out on the applicant, including a specialised blood test for hepatitis indicators. The latter revealed hBs antigens, which meant that the applicant had hepatitis B antibodies in his blood but not that he had been definitely suffering from the active form of the disease. The applicant was prescribed the relevant treatment (Carsil, Livolin, Alochol, Gastronorm, Ursohol), which he received in full, and at the end of his treatment he was deemed to be in good health. 36. On 1 July 2007 the applicant was transferred to prison no. 72 to serve his sentence. On 11 August 2007 he was diagnosed with hepatitis B. Thereafter he lodged a number of complaints with different State bodies alleging that he had contracted hepatitis in the SIZO owing to the failure to disinfect hairdressing implements, and demanding investigation of this matter. Following his allegations, investigations were conducted by the Health Ministry and the prosecutor’s office, which found no evidence to support the applicant’s allegations. The applicant was informed of the results of the investigation by a prosecutor’s letter of 27 July 2009. | 1 |
test | 001-175654 | ENG | RUS | CHAMBER | 2,017 | CASE OF ESKERKHANOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The three applicants were born in 1980, 1981 and 1983 respectively and are in detention in Moscow. 6. The facts of the cases, as submitted by the parties, may be summarised as follows. 7. The applicant was arrested on 8 March 2015 on suspicion of murder. 8. On 8 March 2015 a court ordered his pre-trial detention, which was further extended on several occasions, in particular on 24 August and 25 November 2015. The applicant appealed against the extension orders on 26 August and 26 November 2015 respectively. The appeals were dismissed on 16 December 2015 and on 8 February 2016. 9. The applicant has been detained in remand prison no. 77/6 in Moscow since 17 March 2015, except for twenty-one days in May 2015 when he was detained in remand prison no. 77/1 in Moscow (hereinafter “IZ-77/6” and “IZ-77/1”). In IZ-77/6 the applicant has around 3 square metres (sq.m) of personal space, the cell is extremely hot in the summer and extremely damp in the winter, it lacks natural light and fresh air, while access to potable water and hot water is restricted. The applicant has not been provided with bedding and can have no more than one ten-minute shower a week. Daily physical exercise in the fresh air is limited to one hour. The applicant has not described the conditions of his detention in IZ-77/1. 10. On 25 November 2015 the applicant was transported between IZ77/6 and the Basmanny District Court of Moscow in a prison van. Personal space in the van was limited and there was not enough fresh air; the applicant had no access to a toilet and no food or drinking water was provided. Upon his arrival to the court building and before returning to the remand prison he was detained for about 15 hours in a convoy cell where he disposed of around 0.5 sq. m of personal space and had no access to natural light, fresh air, the toilet or drinking water. 11. The applicants were arrested on 7 March 2015 on suspicion of murder. 12. On 8 March 2015 a court ordered their pre-trial detention, which was further extended on several occasions, in particular on 19 February, 1 March and 12 May 2016. Appeals filed by the applicants were dismissed on 8 April, 21 April and 28 June 2016 respectively. 13. On 12 May 2015 the applicants were transported from remand prison No. 77/2 in Moscow (“IZ-77/2”) to the Moscow City Court and back in a prison van. The conditions of the applicants’ transfer to and from the court building were identical to those described by the applicant in case no. 18496/16. | 1 |
test | 001-177519 | ENG | TUR | ADMISSIBILITY | 2,017 | DİŞÇİ AND OTHERS v. TURKEY | 4 | Inadmissible | Jon Fridrik Kjølbro;Nebojša Vučinić | 1. The list of applicants is set out in the appended table. The Turkish Government (“the Government”) were represented by their Agent. 2. The applicants’ complaints under Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention were communicated to the Government. In application no. 53351/11, the applicant also raised another complaint under the Article 5 § 5 of the Convention. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On various dates, the applicants were placed in pre-trial detentions on suspicion of having committed a crime. Subsequently, criminal proceedings were initiated against them. However, there is no further information in the case files about the outcome of the proceedings. The relevant details of the applications appear in the table below. | 0 |
test | 001-147018 | ENG | SVK | COMMITTEE | 2,014 | CASE OF KESZELI v. SLOVAKIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Ján Šikuta | 5. The applicant was born in 1952 and lives in Šaľa. 6. On 31 May 1994 the applicant claimed a sum of money from a bank. 7. On 16 September 2005 the applicant lodged an application before the Court challenging the length of these proceedings. On 22 May 2007 the Court decided to strike that case (application no. 34161/05) out of its list of cases on the ground that a friendly settlement had been reached between the parties. 8. In the proceedings complained of the Supreme Court’s decision of 30 April 2007 to dismiss the applicant’s appeal, examined as an appeal on points of law, became final on 11 June 2007. 9. On 27 January 2010 the above decision was quashed by the Constitutional Court and the case was remitted to the Supreme Court for reexamination. 10. On 23 September 2010 the Constitutional Court dismissed the applicant’s complaint challenging the length of the proceedings. 11. On 7 June 2011 the Supreme Court dismissed the applicant’s appeal against the first-instance judgment. Upon the applicant’s appeal on points of law the cassation chamber of the Supreme Court quashed that decision on 25 April 2013. 12. On 19 June 2014 the Supreme Court again dismissed the applicant’s appeal against the first-instance judgment. The applicant indicated that he intended to lodge an appeal on points of law after the service of the Supreme Court’s decision. | 1 |
test | 001-152351 | ENG | BGR | CHAMBER | 2,015 | CASE OF POPOV AND CHONIN v. BULGARIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 5. The applicants were born in 1930 and 1953 respectively and live in Sofia. 6. Mr Popov is an heir of Mr M. and Mr Chonin is an heir of Ms F. Mr Popov is entitled to one eighth of the inheritance of Mr M., and Mr Chonin to one ninth of the inheritance of Ms F. The applicants’ two predecessors were co-owners of an afforested island in the Danube, currently named Tsibar, measuring, at the time of expropriation, 1,048,000 square metres. Ms F. owned another afforested island measuring 400,000 square metres and other forestry land on the shores of the Danube, totalling 9,300 square metres. 7. The above-mentioned land was nationalised in 1948. 8. As a result of the Danube’s fluvial activity over the years, Tsibar island’s area has increased and it currently measures about 1,500,000 square metres. The second island no longer exists. 9. On 21 October 1998, following the adoption of the 1997 Forests Restitution Act (see paragraph 27 below), Mr Popov and Mr Chonin’s mother, whom Mr Chonin later succeeded, applied for the restitution of their predecessors’ forests and forestry land. 10. By two decisions of 12 December 2000 the Valchedram land commission acknowledged that the heirs of Mr M. and Ms F. had the right to restitution or compensation. Finding that actual restitution was impossible because the forests had become “exclusive State property” (“изключителна държавна собственост”, see paragraph 28 below), the commission decided that the heirs would receive compensation bonds. Those decisions were served on the applicants on 5 October 2001. 11. In the meantime, legislative amendments entered into force repealing the provisions allowing the award of compensation bonds for properties falling under the Forests Restitution Act (see paragraph 27 below) and providing for a sole means of compensation, namely in the form of equivalent State-own land. 12. In the Valchedram district where the forests belonging to the applicants’ predecessors had been situated there was insufficient Stateowned land to compensate the applicants and the remaining heirs. In a letter dated 2 July 2003 the Ministry of Agriculture therefore instructed the relevant authorities in the neighbouring Montana district to identify appropriate land. 13. In two decisions of 17 October 2003 the Montana Agriculture and Forestry Department allotted to the heirs of Mr M. a plot of 542,500 square metres, and to the heirs of Ms F. a plot of 933,800 square metres in the Montana district. 14. On 16 March 2004 the applicants applied for judicial review of those decisions, arguing that the allotted land and the forests were not equivalent to the ones their predecessors had owned. 15. On 27 December 2007, the Montana District Court gave a judgment in the proceedings brought by Mr Popov. Noting that the land and the forests allotted by way of compensation to the heirs of Mr M. were not equivalent to those owned by him in the past, it quashed the respective decision of the Agriculture and Forestry Department of 17 October 2003. Furthermore, on the basis of an expert report commissioned by it, the District Court observed that there were appropriate forests in the area of the village of Gorna Byala Rechka in the adjacent Varshets district. It thus remitted the case for a fresh examination with a view to allotting land in the specified area to the heirs. 16. The judgment was not appealed against and entered into force on 4 March 2008. 17. In a new decision dated 25 February 2009 the Montana Agriculture Department (former Agriculture and Forestry Department) refused to allot the land in the Montana district to the heirs of Mr M., reasoning that the State-owned forests in that area were not sufficient and that the compensation should be provided in the neighbouring Lom district. 18. On an unspecified date Mr Popov challenged that decision before the Montana District Court. In a judgment of 9 November 2012 that court declared the decision null and void as it contradicted the judgment of 27 December 2007 (see paragraph 15 above). It noted, in addition, that it had already been established that there were no appropriate forests in the Lom district. On the basis of expert reports commissioned by it, the District Court identified in the adjacent districts eleven different plots that were suitable to be provided to the heirs of Mr M., and acknowledged their right to receive those plots as compensation. 19. That judgment does not appear to have been appealed against and entered into force on an unspecified date. 20. In execution of the judgment, in three decisions given in January and February 2013 the Berkovitsa and Roman Agriculture Departments allotted to the heirs of Mr M. several plots of forestry land measuring 319,984 square metres in total. 21. In their submissions dated 21 February 2013 the Government assured the Court that the adoption of decisions transferring the remaining land to the heirs of Mr M. was imminent. 22. In the judicial-review proceedings brought by Mr Chonin against the respective decision of the Montana Agriculture and Forestry Department of 17 October 2003, the Montana District Court issued a judgment on 6 July 2007. It found that the land allotted as compensation to the heirs of Ms F. was indeed of manifestly lower quality than the one previously owned by her. It also found that in the area of the village of Gorno Orizovo in the adjacent Varshets district, there was a plot of forestry land which was equivalent in quality to those previously owned by Ms F. and was even bigger in size. It thus quashed the Montana Agriculture and Forestry Department’s decision of 17 October 2003, acknowledged that the heirs of Ms F. had the right to part of the bigger plot as compensation, and held that it was for the local Agriculture and Forestry Department to apportion the allotted land. 23. That judgment was not appealed against and entered into force on an unspecified date. 24. During the applicants’ ensuing contacts with the authorities it became clear that the afforested area indicated in the judgment of 6 July 2007 was within the territory of the “Vrachanski Balkan” natural park and as such was public property; thus it could not be provided as compensation to the heirs of Ms F. That was pointed out in two letters sent to the applicants, dated respectively 26 August and 10 September 2008, by the Ministry of Agriculture and the administration of the Council of Ministers. 25. It appears that for several years after that, the authorities made no effort to enforce the judgment of 6 July 2007 or to identify other land to be provided to the heirs of Ms F. Not until 23 January 2013 did a commission consisting of members of different State bodies, appointed by the head of the Regional Directorate of Agriculture in Montana, identify thirty-four plots of land in the adjacent districts, measuring 452,024 square metres, which could be provided as compensation to the heirs of Ms F. 26. In their submissions dated 21 February 2013 the Government pointed out that the process would continue, and that the identification of the remaining plots to be transferred to the heirs was imminent. | 1 |
test | 001-168703 | ENG | ARM | CHAMBER | 2,016 | CASE OF KARAPETYAN AND OTHERS v. ARMENIA | 3 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano | 5. The applicants, Mr Vladimir Karapetyan (the first applicant), Ms Martha Ayvazyan (the second applicant), Mr Araqel Semirjyan (the third applicant) and Ms Karine Afrikyan (the fourth applicant), are Armenian nationals who were born in 1969, 1967, 1973 and 1954 respectively and live in Yerevan. 6. At the material time, the applicants occupied different posts within the Ministry of Foreign Affairs, namely Head of Press and Information Department, Head of NATO Division of Arms Control and International Security Department, Counsel of the European Department and Head of USA and Canada Division of the American Department respectively. 7. On 19 February 2008 a presidential election was held in Armenia. The main contenders were the then Prime Minister, Serzh Sargsyan, and the opposition candidate, Levon Ter-Petrosyan. Immediately after the election, Levon Ter-Petrosyan announced that the election had been rigged. From 20 February 2008 onwards nationwide protests, such as demonstrations and sit-ins, were organised by thousands of Levon Ter-Petrosyan’s supporters. 8. On 23 February 2008 several ambassadors for Armenia in foreign countries made the following statement: “We, the undersigned, remaining faithful to our calling as Armenian diplomats and led by our feeling of responsibility before the Republic of Armenia and the Armenian people, with concern for the situation which has arisen in Armenia, with profound respect for the right of Armenian citizens to free elections, with the conviction that only a president elected as a result of free and fair elections can best tackle the challenges facing our country on the international level and substantially raise the international image of Armenia, express our support to our compatriots who have risen to struggle for freedom, protection of the right to a fair election and establishment of true democracy in Armenia. Considering the preservation of stability in the country important and public accord necessary, we appeal to our compatriots and especially the representatives of all the structures in the country responsible for maintaining public order and peace to avoid the temptation of resolving problems by use of force. We appeal to all television companies in Armenia, and especially to Armenian Public Television, to ensure impartial and comprehensive coverage and to provide live airtime to representatives of all the powers who have a constructive position in overcoming the current inner-political crisis. We appeal to all our colleagues working both in Armenia or abroad to join our statement.” 9. This statement was reported by the mass media on the same day. According to the first applicant, he also received the statement via his electronic mail. According to the Government, the ambassadors who issued this statement were dismissed from their posts the following day and their dismissal was widely reported in the media. 10. On 24 February 2008 the applicants made the following statement: “By joining the statement issued by our colleagues from the Ministry of Foreign Affairs we express our concern with the situation created in Armenia, fraught with internal and external undesirable challenges, and outrage against the fraud of the election process, which shadow the will of our country and society to conduct a civilised, fair and free presidential election. As citizens of Armenia, we demand that urgent steps be undertaken to call into life the recommendations contained in the reports of the international observation mission, as well as other prominent international organisations. Only by acting in conformity with the letter and spirit of the law can we create democracy and tolerance in Armenia and earn the country a good reputation abroad.” 11. The names of the applicants, with the indication of their office, appeared under the statement. It appears that this statement was reported by several mass media outlets, including Radio Liberty, on the same day. 12. On 25 February 2008 the Minister for Foreign Affairs of Armenia adopted decrees dismissing the first, second and third applicants from office. The fourth applicant was dismissed from office by a similar decree on 3 March 2008. As a ground for the dismissals, the decrees referred to sections 40, subsection 1, point (j) and 44, subsection 1, point (c), of the Diplomatic Service Act (ՀՀ օրենքը «Դիվանագիտական ծառայության մասին», containing description which stated, inter alia, that a diplomat had no right to use his official capacity and work facilities for the benefit of parties and non-governmental organisations, or in order to carry out other political or religious activity (see paragraphs 22-24 below). 13. On an unspecified date in March 2008, the applicants instituted administrative proceedings challenging their dismissal and seeking to be reinstated in their work. In particular, they claimed that the decrees on their dismissal contained no reasons regarding the particular instance where they had made use of their official capacity and work facilities for the benefit of parties or non-governmental organisations or for engaging in political or religious activities, as prohibited by the sections of the Diplomatic Service Act. They also claimed that dismissal on the ground of convictions and opinions was prohibited by law. 14. On 10 April 2008 the Ministry of Foreign Affairs, as a respondent, lodged a response with the Administrative Court (ՀՀ վարչական դատարան), claiming that the applicants, by making their statement of 24 February 2008 which had then been reported by the mass media and announced during the demonstration, had engaged in political activities. Furthermore, the applicants had made use of their official capacity since they indicated their official titles in the statement. 15. On 29 May 2008 the Administrative Court dismissed the applicants’ claim, finding that their dismissal from work was lawful since the applicants, by making the impugned statement, in essence had engaged in political activity. In this respect, the Administrative Court mentioned that the impugned statement concerned political processes as it contained a political assessment of election and post-election events. Furthermore, that statement, as well as that of the ambassadors, had been read aloud during the demonstration organised by a political force and had received a political assessment. The Administrative Court also found that the applicants, by indicating their post titles, had made use of their official capacity. The applicants’ right to freedom of expression, as protected by Article 27 of the Constitution (ՀՀ Սահմանադրություն), was not breached since the applicants, in exercising that right, had made use of their official status and work facilities. Therefore, the restriction on that right was in compliance with Article 43 of the Constitution. Besides, the applicants had not been dismissed on the ground of their political opinion, but because in disseminating that opinion they had made use of their official status, which was prohibited by law. 16. On an unspecified date, the applicants lodged an appeal on points of law against the judgment of the Administrative Court, claiming, inter alia, a violation of their right to freedom of expression, as protected by Article 10 of the Convention. Besides, they claimed that they had been discriminated against on grounds of political opinion, in violation of Article 14, since those diplomats or state officials who had expressed publicly their support for the pro-governmental candidate had never faced any sanctions: the true reason for their dismissal was their critical opinion of government actions in the sphere of human rights and democratisation. They also claimed that their dismissal had been based on an erroneous interpretation of sections 40, subsection 1, point (j) and 44, subsection 1, point (c), of the Diplomatic Service Act since they had not made use of their official capacity or work facilities when making the impugned statement. Furthermore, the statement had not been made for the benefit of any political party and it could not be qualified as political activity as such. 17. On 23 September 2008 the Court of Cassation (ՀՀ վճռաբեկ դատարան) decided to declare the applicants’ appeal on points of law inadmissible for lack of merit. | 0 |
test | 001-182171 | ENG | HRV | CHAMBER | 2,018 | CASE OF GORAN KOVAČEVIĆ v. CROATIA | 4 | No 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) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 5. The applicant was born in 1981 and lives in Dubrovnik. 6. On 21 October 2010, at 4:40 p.m. in Dubrovnik, police officers of the Criminal Police Department of the Dubrovnik-Neretva County Police (Odjel kriminalističke policije Policijske uprave dubrovačko-neretvanske) (hereinafter “the police”) arrested the applicant on suspicion of drug abuse. 7. According to the Government, the applicant resisted arrest and the police had to apply force in order to be able to bring him to the police station. During this process both the applicant and one of the police officers who had arrested him, S.D., sustained minor bodily injuries. 8. According to the applicant, he did not resist arrest and did not sustain injuries during his arrest; rather, it was during his stay in the police station that the police officers ill-treated him in order to pressure him to make incriminating statements against his co-accused in the trial. 9. The applicant was taken to the police station immediately after his arrest. At 9.40 p.m. he was examined by a doctor, who found that he had sustained minor bodily injuries – excoriations on his left elbow, on the left side of his chest and behind his left ear. Minor bodily injuries were also found on the police officer, S.D., who had arrested the applicant – specifically, excoriations on his right knee and elbow. During their medical examination the applicant and the police officer S.D. stated that they had sustained their injuries by falling to the ground. The doctor’s report of the examination was forwarded to the police. 10. According to a common report issued on the same day by the three police officers who arrested the applicant, S.D., L.D. and I.R., the applicant had resisted arrest and they had had to apply force in order to bring him to the police station. In particular, it was noted that the applicant had been found in a vehicle on the road and arrested. He had refused to step out of his vehicle, so S.D. had grabbed him by his left wrist and had applied the socalled “wristlock” technique in order to get him out of his vehicle. At that point police officer L.D. had grabbed the applicant by his right hand in order to apply the so-called “elbow-lock” technique, but due to the fact that the applicant had continued to resist all three of them had fallen to the ground. The applicant had tried to stand up and L.D. had kept him on the ground by pressing his knee against his back. The applicant had then been handcuffed and placed in the back seat of a police vehicle. In the police vehicle the applicant had continued to resist and the police officer S.D. had applied the “elbow-lock” technique and leaned him forwards in order to restrain him. By the time they had parked in front of the police station, one handcuff had come loose, so L.D. and I.R. had applied the “elbow-lock” technique again. When they had entered the police station the applicant had once again fallen to the ground. Then the applicant had been seated in a room and had ceased to resist, so the police officers had stopped using force and removed his other handcuff. Lastly, it was noted that during the application of coercive measures the applicant and S.D. had sustained injuries which, according to the doctor’s report, had been minor. 11. On the same day a shift manager of the Criminal Police Department noted in a report that the applicant had actively resisted arrest and that S.D., L.D. and I.R. had applied coercive measures against him – bodily force, restraining techniques and handcuffing. It was also noted that the applicant had been examined by a doctor, who had found that he had sustained excoriations on his left elbow, on the left side of his chest and behind his left ear. The applicant signed the report and stated that he did not have any objections to the procedure that had been followed. 12. On 25 October 2010 the chief of the Dubrovnik-Neretva County Police examined the information gathered in respect of the application of coercive measures against the applicant and found that they had been necessary, justified and lawful. 13. According to a police report made on the day of the applicant’s arrest, the applicant was informed of the reasons for his arrest and his right to remain silent, to hire a lawyer of his own choosing and to have a person of his choice be informed of his arrest. The report noted that the applicant had declined to hire a lawyer and that he had asked that his father be informed of his arrest. In this connection it was noted that the applicant’s father had been contacted at 6.20 p.m. The applicant signed the report without making any objections to its contents. On the same day the police lodged a criminal complaint against the applicant under a reasonable suspicion of drug abuse. 14. On 22 October 2010 at 9.45 a.m. the applicant was questioned by the police. In the report on his questioning it was noted that the applicant had been advised of his right to remain silent and to hire a lawyer of his own choosing who could be present during the questioning. In this connection it was noted that the applicant had declined to hire a lawyer. The applicant then gave a statement, explaining that in August 2010 he had on two occasions acted as an intermediary in the selling of amphetamines. He also stated that between 2008 and 2010 he had on several occasions bought cocaine from a certain D.Š. He expressed regret for his actions. The questioning ended at 11.10 a.m. The applicant signed the report on his questioning without making any objections regarding its contents. 15. On 22 October 2010 at 12 p.m. the applicant was brought for questioning before an investigating judge of the Dubrovnik County Court. A deputy Dubrovnik County State Attorney, K.K., was also present during the questioning. According to the report on his questioning, the applicant was twice advised by the investigating judge of his right to remain silent and to hire a lawyer of his own choosing, who could be present during the questioning. The applicant replied that he understood the advice and the grounds for his being under suspicion and maintained that he did not require a lawyer for that day’s questioning and that he would give a statement to the investigating judge and answer questions. He then explained that in August 2010 he had on two occasions acted as an intermediary in the selling of amphetamines and that between 2008 and 2010 he had on several occasions bought cocaine from D.Š. Lastly, the applicant stated that he had been arrested the day before at 5 p.m. and that apart from the use of force during his arrest he did not have any objections about the police conduct during his stay in the police station. The questioning ended at 12:50 p.m. The applicant signed the report on his questioning without making any objections as to its contents. He was then released. 16. On 29 October 2010 an investigation was opened in respect of the applicant and D.Š on the reasonable suspicion of their having engaged in drug abuse. On 2 December 2010 the investigation was extended to encompass a third person, V.V. 17. On 3 December 2010 the applicant hired a lawyer, D.P., to represent him. 18. On 4 January 2011 the Dubrovnik County State Attorney’s Office (Županijsko državno odvjetništvo u Dubrovniku) indicted the applicant, D.Š., and V.V for drug abuse. 19. On 3 May 2011 a hearing was held before the Dubrovnik County Court, which the applicant and his lawyer attended. The hearing was adjourned in order for V.V.’s ability to follow the proceedings to be determined. 20. The hearing of 7 June 2011, which the applicant and his lawyer attended, was adjourned owing to the illness of the presiding judge. 21. At a hearing held on 20 June 2011, which the applicant and his lawyer attended, the Dubrovnik Country Court (“the trial court”) established the identity of the defendants and the charges brought against them. The applicant stated that he understood the charges brought against him and the warnings regarding his rights given by the presiding judge and that he would present his defence and answer questions. He pleaded not guilty. He asked to give his defence at the end of the trial. Evidence was read out aloud, whereas certain evidence was excluded from the case file at the request of the defence. The trial court heard three witnesses. 22. At a hearing held on 21 June 2011, which the applicant and his lawyer attended, the trial court heard I.G., a witness. 23. At a hearing held on 1 July 2011, which the applicant and his lawyer attended, the trial court continued to hear I.G. and examined certain other evidence. The applicant’s lawyer then proposed that the trial court examine the medical records of the applicant’s father who allegedly suffered a stroke after learning of the applicant’s arrest, as well as a medical certificate dated 27 January 2011 confirming that on 21 October 2010 the applicant had been examined by a doctor and that the doctor’s report had been forwarded to the police. He also proposed that the trial court hear the applicant’s sister and examine the power of attorney by which she had hired a lawyer to represent the applicant during the time that the investigating judge was questioning him. The applicant’s lawyer, D.P., explained that this proposed evidence was relevant for the establishing of the conduct of the police against the applicant. D.H., the lawyer allegedly hired by the applicant’s sister, who represented D.Š., the applicant’s co-accused in the trial, stated that the power of attorney in question had been signed in his office on the night when the applicant had been held in the police station. The trial court examined the applicant’s father’s medical records and rejected the other proposed evidence, considering them irrelevant for the proceedings at that point. 24. At a hearing held on 4 July 2011 the trial court heard the applicant’s co-accused, D.Š. D.Š. stated, inter alia, that he had not sold drugs to the applicant and that he had learned from his lawyer, D.H., that the police had ill-treated the applicant in the police station and had beaten him. The trial court then heard the applicant. 25. The applicant reiterated the part of his statement given to the investigating judge on 22 October 2010 concerning the criminal accusation against him, namely that he had on two occasions acted as an intermediary in the selling of amphetamines. He retracted the part of his statement concerning the buying of cocaine from D.Š. He alleged that after he had been brought to the police station he had been physically and psychologically ill-treated and had been coerced to into giving such a statement to the investigating judge. He further alleged that the following morning his father and sister had come to the police station, and when he had seen his father crying, he had agreed to give his statement to the investigating judge. He explained that once he had been brought to the police station he had immediately confessed to being an intermediary in the selling of amphetamines. However, when the police had started questioning him about D.Š. and the cocaine, he had asked for a lawyer. Later, at one point police officer L.D. had told him that D.H. had arrived at the entrance of the police station but had not been allowed to come in. He alleged that he had been beaten by police officers L.D., S.D. and I.R. 26. When asked by the prosecutor, the applicant explained that during his arrest and transportation to the police station the police officers had used force against him and had beaten him. When further asked by the presiding judge and the lawyer, D.H., the applicant explained that even though on 22 October 2010 he had been advised by the investigating judge of his right to remain silent and to hire a lawyer, he had been afraid of the police officers who had brought him before the investigating judge, given that they had been the same police officers who had beaten him. The applicant’s lawyer then asked that the applicant’s sister be heard on account of a conversation that she had had with the police officer, L.D. He also asked that D.H. be heard and that the medical documentation relating to the injuries the applicant had sustained during his questioning by the police be examined. The trial court dismissed these requests, considering such evidence to be unnecessary. 27. In a closing statement the applicant’s lawyer asked the trial court to take into account, when determining the applicant’s sentence, the fact that he had confessed to his crime. The applicant reiterated his lawyer’s statement and added that he intended to finish school and start working and would never repeat his actions. 28. On 6 July 2011 the Dubrovnik County Court found the applicant guilty as charged and sentenced him to two years’ imprisonment. It also found D.Š. and V.V. guilty as charged and sentenced them to eight and two years’ imprisonment, respectively. In finding D.Š. guilty the trial court referred to, inter alia, the statement that the applicant had given to the investigating judge concerning his having purchased cocaine from D.Š. in the period between 2008 and 2010. It did not consider credible the applicant’s allegation that he had given his statement to the investigating judge under police duress. It found that during the trial the applicant himself had alleged that he had given his oral statement to the investigating judge uninterruptedly, without the police officers being present, and after being advised of his right to hire a lawyer and to remain silent. In this respect it noted that the applicant had told the investigating judge that he had been illtreated by the police only during his arrest, and not during his stay in the police station. It considered that the fact that the applicant had changed the nature of his allegation was an attempt to help his co-accused D.Š in the trial. 29. The trial court dismissed evidence proposals relating to the applicant’s alleged ill-treatment in the police station, specifically that his sister be heard in respect of this allegation, finding that his sister had not been present during his arrest and transportation to the police station, and later on had not been in the same room with the applicant and the police officers. As to the criminal accusation against the applicant, the trial court found that the applicant had confessed to being an intermediary in the sale of amphetamines and it took his confession into account as a mitigating circumstance. 30. The applicant appealed against the first-instance judgment to the Supreme Court (Vrhovni sud Republike Hrvatske). In his appeal he stated that he had not resisted his arrest and had not sustained injuries during his arrest. He explained that once he had been brought to the police station he had immediately and voluntarily confessed to his crime. Therefore, he could have had no reason to resist the police only a few minutes beforehand. He further stated that the police had physically and psychologically pressured him into incriminating D.Š. and had denied him access to a lawyer. He alleged that he had given a statement to the investigating judge under duress applied by the police officers who had brought him before the investigating judge. He complained about the trial court’s dismissal of his proposals regarding evidence relating to those circumstances. He lastly stated that, given that the trial court had believed the statement that he had given against D.Š. and had taken it into account when convicting D.Š., he should have been given a milder sanction. 31. On 29 February 2012 the Supreme Court upheld the applicant’s conviction but reduced his sentence to one year’s imprisonment. The Supreme Court found that in his appeal the applicant himself had stated that the police officers had had no reason to exert pressure on him given that he had immediately confessed his crime. As to the change of the applicant’s line of defence during the trial, the Supreme Court agreed with the trial court that this had probably been an attempt to help his co-accused, D.Š., in the trial, rather than constituting a credible reason for retracting his earlier statements. The Supreme Court lastly found that the applicant’s statement had helped to convict D.Š. and that therefore his sentence was to be reduced to one year’s imprisonment. 32. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He complained that during his stay in the police station he had asked for a lawyer and that his sister and father had hired D.H. to represent him. However, he stated that the police had forced him to waive this right. He further complained that he had been ill-treated during his stay in the police station. He explained that he had not resisted arrest and had not been injured during his arrest, but during his stay in the police station when he had been forced to incriminate D.Š. 33. On 7 November 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded. The decision was served on the applicant’s representative on 18 November 2013. | 0 |
test | 001-159210 | ENG | HUN | CHAMBER | 2,015 | CASE OF FÁBIÁN v. HUNGARY | 3 | Violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 1 of Protocol No. 1 - Possessions;Article 1 of Protocol No. 1 - Protection of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1953 and lives in Budapest. 6. The applicant, already in receipt of an old-age pension, took up employment with Budapest XIII District Municipality as a civil servant, as of 1 July 2012. 7. On 1 January 2013 an amendment to the 1997 Pension Act entered into force, according to which the disbursement of those old-age pensions whose beneficiaries are simultaneously employed within certain categories of the public sector will be suspended for the duration of their employment. No such restriction was put in place in respect of those who are in receipt of an old-age pension while being employed within the private sector. 8. In application of this new rule, on 2 July 2013 the disbursement of the applicant’s pension was suspended. The applicant’s administrative appeal to the National Pension Board was to no avail. | 1 |
test | 001-171414 | ENG | POL | ADMISSIBILITY | 2,017 | MOLGA v. POLAND | 4 | Inadmissible | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The applicant, Mr Daniel Molga, is a Polish national who was born in 1998 and lives in Radom. He was initially represented before the Court by his mother, and subsequently by Mr T. Rowiński, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant’s father, Mr Włodzimierz Molga (“W.M.”), lived with the applicant’s mother, Ms R.L. 4. The applicant’s father sold clothes at a local market. On 31 August 1998 the Radom District Court convicted him in summary proceedings of the unauthorised use of a registered trademark. It fined him 700 Polish zlotys (PLN, approximately 175 euros (EUR)), convertible to 35 days’ imprisonment in case of default. 5. On 22 December 1998 the court decided that W.M. could pay the fine in seven monthly instalments, starting from December 1998. According to the court’s records, W.M. paid PLN 600 of his fine. A court bailiff instituted enforcement proceedings to recover the outstanding PLN 100, but to no avail. 6. On 8 June 2004 the Radom District Court ordered that W.M. serve a term of five days’ imprisonment in respect of the unpaid fine. It appears that W.M. had been summoned to the hearing but did not appear. 7. W.M. was unsuccessfully summoned to surrender himself to a remand centre. On 19 October 2004 the Radom District Court ordered that he be arrested and taken to the remand centre. On 16 November 2004 at about 5 p.m. the police arrested W.M. outside his home. On 17 November 2004 at about 9 a.m. he was taken to Radom Remand Centre to serve his fiveday sentence. 8. At the remand centre W.M. refused a routine examination by a nurse. He was then examined by a doctor, who cleared his admission. Subsequently, W.M. was placed in a transit cell no. 4. At about 12 noon a prison guard, M.D., noticed that W.M. was lying on the floor with his belt tied around his neck. The other end of the belt was tied to a chair. The guards, M.D. and A.R., and later the nurse tried to resuscitate W.M. He was declared dead at about 12.30 p.m. W.M. was 52 at the time. A prosecutor and the police arrived at the scene later. 9. On 22 November 2004 the Radom police opened an investigation under the heading of involuntary homicide (Article 155 of the Criminal Code, hereinafter “the CC”). The investigation was later taken over by the Radom District Prosecutor. 10. On an unspecified date a post-mortem was carried out. In his report, the forensic expert concluded that the direct cause of death had been hanging and that it could be assumed that it had been an act of suicide. 11. The prosecutor found no evidence pointing to the involvement of third parties in the incident. With regard to a possible failure to act by the prison guards, the prosecutor questioned M.D., the guard who had been supervising W.M. at the relevant time (see paragraph 8 above). Having regard to the evidence, the prosecutor found that the prison guards responsible for W.M.’s safety had acted beyond reproach. The guards had not breached the applicable regulations by letting W.M. keep his belt. Furthermore, the prosecutor found no shortcomings in the prison guards’ reaction after seeing W.M. lying on the ground. She concluded that the prison guards had not committed an offence. 12. On 28 February 2005 the Radom District Prosecutor discontinued the investigation after establishing that the actions of the prison guards had not constituted a criminal offence. 13. On 12 August 2008 the applicant’s mother complained to the Ministry of Justice that she had not been served with the Radom District Prosecutor’s decision to discontinue the investigation. 14. On 6 October 2008 the Radom District Prosecutor ordered that the applicant’s mother be served with a copy of the decision. 15. By a letter dated 9 October 2008 the applicant’s mother was informed by the Radom District Prosecutor that she had been formally notified of the opening of the investigation into her partner’s death on 30 November 2004. The letter said that the applicant’s mother had twice been summoned to the Radom police headquarters for an interview, which she had not attended. Subsequently, a police officer had visited her flat but had not been allowed to enter. Further summonses sent to the applicant’s mother had not been answered. On 28 December 2004 the applicant’s mother had gone to police headquarters and had insisted that she did not wish to be contacted in connection with W.M.’s death. Accordingly, the district prosecutor had served the decision to discontinue the investigation on R.L., W.M.’s adult son and the applicant’s half-brother. 16. On 9 January 2009 the applicant’s mother was served with the prosecutor’s decision to discontinue the investigation. She lodged an appeal against that decision dated 13 January 2009. Her appeal was rejected as submitted out of time. On an unspecified date the applicant’s mother requested the district prosecutor to grant her leave to appeal out of time. On 5 February 2009 the prosecutor refused that request. The applicant appealed. On 7 April 2009 the Radom District Court upheld the prosecutor’s decision. No further appeal lay against this decision. In consequence, the decision to discontinue the investigation of 28 February 2005 became final. 17. On 12 June 2012 the applicant, represented by his mother, relying on Article 327 § 1 of the Code of Criminal Procedure (hereinafter, “the CCP”), requested that the Radom-Wschód District Prosecutor open de novo (podjęcie na nowo) the investigation into his father’s death. He requested that the prosecutor obtain the file of the civil proceedings against the State Treasury in which the courts had determined that there existed a causal link between the failures of the prison guards and his father’s suicide (see paragraphs 36-43 below). He pointed out the discrepancy between the findings of the district prosecutor and the civil courts. The applicant’s mother also produced proof of payment of all seven instalments of the fine imposed on W.M. 18. The investigation was opened de novo on 15 February 2013. 19. On 28 June 2013 the Radom-Wschód District Prosecutor discontinued the investigation into the alleged failure by the prison guards to fulfil their duties. The allegation was related to their failure to keep the applicant’s father under constant surveillance and to seize his belt, which he had used to commit suicide (Article 231 § 1 in conjunction with Article 155 of the CC, see paragraph 44 below). The prosecutor established that those acts did not constitute a criminal offence. 20. The prosecutor also discontinued the investigation into alleged negligence by Ms E.W., a clerk at the Radom District Court who had incorrectly credited a payment of PLN 100 by W.M. to another debtor. The prosecutor established that prosecution of the impugned offence had become time-barred. 21. With regard to the facts, the prosecutor established that during W.M.’s admission to the remand centre on 17 November 2004, the prison guard S.S. had noticed that W.M. had been anxious and tearful. W.M. had contested his imprisonment as unjust. Consequently, the guards S.S. and R.D. had decided to check with Radom District Court as to whether the fine had been paid and were told that that was not the case. Next, W.M. was to be examined by a male nurse, M.S. The male nurse noticed that W.M. had been agitated and tearful and had declared that he would go on a hunger strike. Having regard to those circumstances, the male nurse had requested that W.M. be taken to a medical room for examination by a doctor. At about 11 a.m. W.M. had been taken to a medical room where he was to be examined by a doctor, D.C. W.M. had been anxious, tearful and convinced that he had been wronged by the court and the police. W.M. had refused to be examined or take any medication. He had also declared that he would refuse any food and drink in protest at his imprisonment. W.M. had not revealed any suicidal thoughts. Doctor D.C. had agreed to W.M.’s incarceration but had recommended that he be seen by a psychiatrist at a later date. 22. At about 11.40 a.m. W.M. had been taken to transit cell no. 4 where he was to wait for his prison underwear and hygiene products. At about 12 noon the prison guard M.D. had seen through the peephole that W.M. was lying on the floor. M.D. had entered the cell and noticed that a belt was tied around W.M.’s neck. He had taken the belt off W.M.’s neck and, together with another guard, A.R., had begun resuscitation procedures. At about 12.30 p.m. an emergency services doctor had declared W.M. dead. 23. The prosecutor also had regard to the findings of the forensic expert. The expert, having carried out a post-mortem, established the presence of a slight strangulation mark on W.M.’s neck and a number of injuries which had likely resulted from his hitting objects while in convulsion. The expert further established that the direct cause of death had been hanging. The result of his examination allowed it to be established that it had been a suicide. 24. The prosecutor found no evidence pointing to the involvement of third parties in the impugned incident. 25. The prosecutor took a number of investigative measures aimed at determining whether the prison guards had failed to fulfil their duties. She interviewed the prison guard M.D. He testified that certain objects, such as mobile telephones, penknives and screwdrivers, were taken from prisoners. However, the applicable regulations did not require that belts or laces should also be seized. The prosecutor analysed the applicable regulations and concluded that belts and laces were not regarded as dangerous objects. 26. With regard to alleged negligence on the part of the prison, the prosecutor established that the actions of the prison guards had not disclosed any failure to fulfil their duties. The prison guards had acted with appropriate diligence in supervising W.M. Not seizing W.M.’s belt in the process of his admission to the remand centre had been in compliance with the relevant regulations. There had been no grounds to suspect that W.M. would make an attempt on his own life despite his strong emotional reaction to his incarceration. The doctor interviewing W.M. had not identified any suicidal tendencies. Furthermore, after seeing W.M. lying unconscious on the floor, the prison guards had reacted appropriately to the situation. In conclusion, the prosecutor found that the actions of the prison guards had not constituted any of the criminal offences prescribed in Articles 231 and 155 of the CC. 27. On 11 July 2013 the applicant’s mother appealed against the prosecutor’s decision. She argued, inter alia, that the prison guards had failed in their duties by not seizing W.M.’s belt. That, in consequence, had led to his suicide and death. 28. On 10 October 2013 the Radom District Court dismissed the appeal and upheld the prosecutor’s decision. 29. The court noted that the applicant’s mother had sought to have the investigation continued and for charges to be brought against specific individuals, eventually leading to their trial and conviction. However, the evidence secured in the investigation had not provided any grounds to accept such a demand. 30. The court found that the prosecutor had correctly established the facts and had properly assessed the comprehensive evidence obtained in the case. It noted that the prosecutor had carried out a number of investigative measures aimed at determining if there had possibly been negligence on the part of the prison guards. However, no such negligence had been established. 31. The court found nothing untoward in the manner in which the prison guards had carried out their duties vis-à-vis the applicant’s father. They had ensured, inter alia, that the applicant’s father had been seen by a doctor. There had been no grounds to believe that the applicant’s father would commit suicide, despite his strong emotional reaction to imprisonment. In accordance with the applicable regulations, the prison guards had not been required to seize the applicant’s father’s belt. Furthermore, they had attempted to resuscitate the applicant’s father. In conclusion, the court accepted the prosecutor’s finding that the actions of the prison guards had not amounted to any of the offences prescribed in Articles 231 and 155 of the CC. It noted that the findings of the civil court could not alter that conclusion and lead to attributing criminal responsibility to the prison guards. The court found that the applicant’s mother had not indicated any relevant circumstances which could lead to the prosecutor’s decision being overturned. 32. The court also accepted the prosecutor’s decision to discontinue the investigation with regard to the court clerk. 33. On 11 January 2010 the applicant brought a claim against the State Treasury with the Radom Regional Court. His mother acted on his behalf since the applicant was a minor. He sought PLN 1,000,000 (approximately EUR 250,000) in compensation and a monthly allowance of PLN 3,000 (approximately EUR 750) in connection with his father’s death. The applicant argued that the State Treasury was liable for his father’s death on account of gross negligence by the prison guards who had failed to ensure his father’s safety. In his view, the belt had been a dangerous object and should definitely have been seized by the prison guards. 34. On 30 September 2010 the Radom Regional Court dismissed the applicant’s claim. It held that the prison guards had acted lawfully and in accordance with the Code of Execution of Criminal Sentences and that therefore the State Treasury could not be held liable. In addition, the court held that there had been no causal link between W.M.’s death and the actions of the prison guards. 35. The Regional Court established that W.M. had been agitated during his admission to the remand centre but considered that to be a standard reaction. The prison guards had checked with Radom District Court and, despite W.M.’s claims to the contrary, it had confirmed that one instalment of W.M.’s fine had not been paid. During his medical examination, W.M. had informed the doctor that he had left children at home unsupervised but he had not revealed any suicidal thoughts. The doctor had concluded that W.M. could be admitted to the remand centre and that there was no need for an immediate psychiatric consultation. Having regard to the above, the court found that there was nothing in W.M.’s medical history or circumstances related to the offence which would have indicated that he needed to be put under particularly close supervision or that his belt should have been seized. 36. The applicant appealed. On 8 February 2011 the Lublin Court of Appeal partly allowed his claim. It found the State Treasury liable under Article 417 § 1 of the Civil Code and awarded the applicant PLN 70,000 (approximately EUR 18,000) in compensation and a monthly allowance of PLN 500 (approximately EUR 125). The court dismissed the remainder of the applicant’s appeal. 37. The Court of Appeal noted that under Article 108 § 1 of the Code of Execution of Criminal Sentences, the administration of a penal institution had a duty to ensure prisoners’’s behaviour could not be considered as simple agitation. His behaviour had suggested a nervous breakdown caused by a feeling of injustice as W.M. had been convinced that he had paid the fine in full. For example, the prison guard M.S. had stated in his report that W.M. had displayed disturbing behaviour (hitting the bed with his fist), had been tearful, anxious and agitated, and had declared that he would go on a hunger strike. 38. The Court of Appeal found that since W.M.’s behaviour had been very different from the norm and that a psychiatric consultation had been recommended for him, then the prison guards should have taken all the necessary steps to ensure his safety. They should have seized any object presenting a risk to his life or health, including his belt or, alternatively, should have put him under constant supervision. Such actions would have prevented W.M.’s death. The court thus held that there was a causal link between the omissions of the prison guards and W.M.’s death. 39. With regard to the claim for compensation, the Court of Appeal noted that under Article 446 § 3 of the Civil Code it could award an appropriate level of compensation to relatives of a deceased if their situation significantly deteriorated as a result of the person’s death. A significant deterioration in a claimant’s situation depended on the degree of adverse material and immaterial consequences resulting from the death of a relative. The Court of Appeal found that the amount of compensation sought was grossly excessive and that the claimant (the applicant) had not established that his situation had deteriorated to such a degree. For the claimant, the death of his father when he was six years old had certainly been a particularly acute loss which had limited his prospects in life and had amounted to a loss of natural support. Having regard to those and other relevant factors, the court found that the appropriate level of compensation was PLN 70,000 (approximately EUR 18,000). 40. The amount of monthly allowance sought by the applicant was also inflated, the court found. The size should not be higher than the amount W.M. would have contributed as a father. Having regard to W.M.’s financial situation prior to his death, the court found that a monthly allowance of PLN 500 (approximately EUR 125) was reasonable and commensurate with the applicant’s justified needs. 41. The applicant lodged a cassation appeal, contesting the amounts of compensation and monthly allowance as too low. The State Treasury also lodged a cassation appeal. On 22 November 2011 the Supreme Court accepted the defendant’s cassation appeal for examination and refused to admit that of the applicant. 42. On 22 February 2012 the Supreme Court quashed the Court of Appeal’s judgment in part and remitted the case. It held that the lower court had failed to examine the defendant’s plea that the claim was time-barred. However, it upheld the Court of Appeal’s findings in respect of the prison guards’ failure to ensure the safety of the applicant’s father (see paragraphs 37-38 above). 43. On 31 May 2012 the Lublin Court of Appeal gave a judgment awarding the same level of compensation and monthly allowance to the applicant and dismissing the remainder of the defendant’s appeal. The court examined the defendant’s plea based on the limitation period. To that end the court heard the applicant’s mother. It established that in April 2012 the applicant’s mother had found proof of payment of all seven instalments of the fine imposed on her partner made between December 1998 and June 1999. It further established that the prosecutor had refused to consider her a party to the investigation and to grant her access to the file. It had only been after the applicant’s mother had complained to the Ministry of Justice that she had been served with the decision to discontinue the investigation on 9 January 2009 (see paragraph 16 above). Accordingly, the three-year limitation period should start to run on the latter date. As the claim had been brought on 11 January 2010 (see paragraph 33 above), the defendant’s plea had to be dismissed. 44. Article 77 § 1 of the Constitution refers to the State’s civil liability in the following way: “Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law.” 45. In a judgment (no. SK 18/00) of 4 December 2001, the Constitutional Court examined the compatibility of Article 417 of the Civil Code with Article 77 § 1 of the Constitution. It held, inter alia, that: “In accordance with Article 77 § 1 of the Constitution, the sole basis for [State civil] liability is an unlawful act by a public authority, it is of no significance whether such an act was subjectively culpable (subiektywnie zawinione). ... Having regard to the conditions for [State] liability laid down in Article 77 § 1 of the Constitution previously analysed, there is no doubt that ‘the personal culpability of a state official’ does not form part of the list of conditions necessary for liability on the part of the public authorities.” 46. Article 417 § 1 of the Civil Code, as applicable from 1 September 2004, provides as follows: “The State Treasury or [,as the case may be,] a local self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” 47. Article 155 of the Criminal Code provides as follows: “Anyone who unintentionally causes the death of another person shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.” Article 231 § 1 of the Criminal Code reads as follows: “A public official who, by overstepping his powers or not fulfilling his duties, acts to the detriment of public or private interests shall be liable to a sentence of imprisonment of up to three years.” | 0 |
test | 001-141794 | ENG | ITA | CHAMBER | 2,014 | CASE OF GRANDE STEVENS AND OTHERS v. ITALY | 2 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);No violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence;Article 6-3-a - Information on nature and cause of accusation);No violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence;Article 6-3-c - Defence in person;Defence through legal assistance);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice);Respondent State to take individual measures (Article 46 - Individual measures;Article 46-2 - Execution of judgment);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque;Peer Lorenzen | 5. A list of the applicant parties is appended. 6. At the relevant time Mr Gianluigi Gabetti was the chairman of the two applicant companies and Mr Virgilio Marrone was the authorised representative (procuratore) of the applicant company Giovanni Agnelli & C. s.a.a. 7. On 26 July 2002 the public limited company FIAT (Fabbrica Italiana Automobili Torino) signed a financing agreement (prestito convertendo) with eight banks. That contract was due to expire on 20 September 2005 and stipulated that, should FIAT fail to reimburse the loan, the banks could offset their claim by subscribing to an increase in the company’s capital. Thus, the banks would have obtained 28% of FIAT’s share capital, while the holdings of the public limited company IFIL Investments (which subsequently, on 20 February 2009, became Exor s.p.a., the name by which it will be referred to hereafter) would have decreased from 30.06% to about 22%. 8. Mr Gabetti wished to obtain legal advice on the best way to ensure that Exor remained the controlling shareholder in FIAT, and to this end he contacted a lawyer specialising in company law, Mr Grande Stevens. He considered that one possibility would be to renegotiate an equity swap (that is, a contract allowing a share’s performance to be exchanged against an interest rate, without having to advance money), dated 26 April 2005 and based on approximately 90 million FIAT shares, concluded by Exor with an English merchant bank, Merrill Lynch International Ltd, which was due to expire on 26 December 2006. In Mr Grande Stevens’s opinion, this would be one way to prevent the launch of a takeover bid with regard to the FIAT shares. 9. Without mentioning Merrill Lynch International Ltd for fear of breaching his duty of confidentiality, on 12 August 2005 Mr Grande Stevens asked the National Companies and Stock Exchange Commission (Commissione Nazionale per le Società e la Borsa – “the CONSOB”, which in the Italian legal system, has the task, inter alia, of protecting investors and ensuring the transparency and development of the stock markets) whether, in the scenario he envisaged, a takeover bid could be avoided. At the same time Mr Grande Stevens began making enquires with Merrill Lynch International Ltd about the possibility of amending the equity swap contract. 10. On 23 August 2005 the CONSOB asked Exor and Giovanni Agnelli to issue a press release providing information on any initiative taken in the light of the forthcoming expiry of the financing agreement with the banks, any new fact concerning FIAT and anything that might explain the market fluctuations in FIAT shares. 11. Mr Marrone alleges that he was on leave on that date. He had informed Mr Grande Stevens of the CONSOB’s request and had sent him a copy of it. Mr Marrone submits that he was not involved in drafting the press releases described in paragraphs 13 and 14 below. 12. Mr Gabetti submits that on 23 August 2005 he was in hospital in the United States. He had received a draft press release and had contacted Mr Grande Stevens by telephone; the lawyer had confirmed to him that, given the significant number of elements that remained uncertain, renegotiation of the equity swap contract could not be considered as a relevant and currently available option. In those circumstances, Mr Gabetti approved the draft press release. 13. The press release issued in response [to the CONSOB’s query], approved by Mr Grande Stevens, merely indicated that Exor had “neither instituted nor examined initiatives with regard to the expiry of the financing contract” and that it wished “to remain FIAT’s reference shareholder”. No mention was made of the possible renegotiation of the equity swap contract with Merrill Lynch International Ltd, which, in the absence of a clear factual and legal basis, the applicants considered merely as one possible future scenario. 14. The Giovanni Agnelli Company confirmed Exor’s press release. 15. From 30 August to 15 September 2005 Mr Grande Stevens continued his negotiations with Merrill Lynch International Ltd, exploring the options for amending the equity swap contract. 16. On 14 September 2005, in the course of an Agnelli family meeting, it was decided that the draft text being studied by Mr Grande Stevens ought to be submitted for approval by the Exor board of management. On the same day, the CONSOB received a copy of the equity swap contract and was informed of the negotiations under way with a view to using that contract to enable Exor to acquire FIAT shares. 17. On 15 September 2005, in execution of the decisions taken by their respective boards of management, Exor and Merrill Lynch International Ltd concluded the agreement on amending the equity swap contract. 18. On 17 September 2005, in response to the question posed to it by Mr Grande Stevens on 12 August 2005 (see paragraph 9 above), the CONSOB indicated that, in the scenario envisaged, there was no obligation to launch a takeover bid. 19. On 20 September 2005 FIAT increased its share capital; the new shares were acquired by the eight banks in compensation for the sums owed to them. On the same date the agreement amending the equity swap contract took effect. In consequence, Exor continued to hold a 30% stake in FIAT. 20. On 20 February 2006 the CONSOB’s Markets and Economic Opinions Division – Insider Trading Office (Divisione mercati e consulenza economica – ufficio Insider Trading – hereafter the “IT Office”) accused the applicants of breaching Article 187 ter § 1 of Legislative Decree no. 58 of 24 February 1998. That article, entitled “Market Manipulation”, provides: “Without prejudice to criminal penalties where the conduct amounts to an offence, any person who, through means of information, including Internet or any other means, disseminates false or misleading information, news or rumours of a kind to provide false or misleading indications concerning financial instruments shall be liable to an administrative penalty ranging from 20,000 to 5,000,000 euros (EUR).” 21. According to the IT Office, the agreement to amend the equity swap had been concluded or was in the process of being concluded before the press releases of 24 August 2005 were issued, and accordingly it was abnormal that they had contained no mention of it. The applicants were invited to submit their defence. 22. The IT Office then transmitted the file to the CONSOB’s Administrative Sanctions Directorate (ufficio sanzioni amministrative – hereafter, “the Directorate”), accompanied by a report (relazione istruttoria) dated 13 September 2006, which set out the evidence against the accused and their arguments in reply. According to that report, the arguments submitted in their defence by the applicants were not such as to enable the file to be closed. 23. The Directorate communicated this report to the applicants and invited them to submit in writing, within a thirty-day period that would expire on 23 October 2006, those arguments that they considered necessary for their defence. In the meantime, the IT Office continued to examine the applicants’ case, by obtaining oral statements and analysing the documents received on 7 July 2006 from Merrill Lynch International Ltd. On 19 October 2006 it transmitted a “supplementary note” to the Directorate in which it stated that the new documents examined by it were not such as to alter its conclusions. On 26 October 2006 the applicants received a copy of the supplementary note of 19 October 2006 and its appendices; they were given a further thirty-day deadline within which to submit any comments. 24. Without communicating it to the applicants, the Directorate presented its report (dated 19 January 2007 and containing its conclusions) to the Commission – the CONSOB proper –, that is, to the body responsible for deciding on possible penalties. At the relevant time the Commission was made up of a chairman and four members, appointed by the President of the Republic on a proposal (su proposta) from the President of the Council of Ministers. Their term of office was for five years and could be renewed only once. 25. By resolution no. 15760 of 9 February 2007, the CONSOB imposed the following administrative fines on the applicants: EUR 5,000,000 in respect of Mr Gabetti, EUR 3,000,000 in respect of Mr Grande Stevens, EUR 500,000 in respect of Mr Marrone, EUR 4,500,000 in respect of the company Exor, EUR 3,000,000 in respect of the company Giovanni Agnelli. 26. Mr Gabetti, Mr Grande Stevens and Mr Marrone were banned from administering, managing or supervising listed companies for periods of six, four and two months respectively. 27. The CONSOB held, in particular, that the file showed that on 24 August 2005, date of the impugned press releases, the plans to maintain a 30% stake in FIAT’s capital on the basis of renegotiation of the equity swap contract with Merrill Lynch International Ltd had already been studied and were being put in place. It followed that the press releases falsely represented (rappresentazione falsa) the situation at the time. The CONSOB also emphasised the positions held by the persons concerned, the “objective gravity” of the offence and the existence of malicious intent. 28. The applicants applied to the Turin Court of Appeal seeking to have these penalties set aside. They alleged, inter alia, that the CONSOB’s rules were illegal, since, contrary to the requirements of Article 187 septies of Legislative Decree no. 58 of 1998 (see paragraph 57 below), they did not comply with the principle of an adversarial examination of the case. 29. Mr Grande Stevens further noted that the CONSOB had accused and punished him for being involved in publication of the press release of 24 August 2005 as the executive director of Exor. Before the CONSOB, he had argued unsuccessfully that he did not have that role and that he was merely a lawyer and consultant for the Agnelli group. Before the appeal court, Mr Grande Stevens maintained that, since he was not an executive director, he could not have taken part in the decision to publish the impugned press release. In pleadings of 25 September 2007, Mr Grande Stevens requested that, should the appeal court consider the documents placed in the case file to be insufficient or unusable, it summon witnesses for questioning “on the facts set out in the above-mentioned documents”. He did not indicate clearly in those pleadings either the names of those witnesses or the circumstances in respect of which they were to give evidence. In pleadings of the same date, Mr Marrone named two witnesses whose statements would prove that he had not taken part in drafting the press releases, and stated that the appeal court could, if necessary (ove occorresse), question them. 30. In judgments deposited with the registry on 23 January 2008, the Turin Court of Appeal reduced the administrative fines imposed by the CONSOB in respect of certain of the applicants, as follows: - EUR 600,000 in respect of Giovanni Agnelli s.a.a.; - EUR 1,000,000 in respect of Exor s.p.a.; - EUR 1,200,000 in respect of Mr Gabetti. The heading of the judgments delivered in respect of Mr Gabetti, Mr Marrone and Exor S.p.a. indicated that the court of appeal had met in private (riunita in camera di consiglio). The “procedure” part of the judgments issued in respect of Mr Grande Stevens and Giovanni Agnelli & C. S.a.s. mentioned that the parties had been summoned to the deliberations (disposta la comparizione delle parti in camera di consiglio). 31. The length of the ban on assuming responsibility for the administration, management or supervision of companies listed on the stock exchange was reduced from six to four months in respect of Mr Gabetti. 32. The court of appeal dismissed the applicants’ other complaints in their entirety. It noted, inter alia, that even after the file had been transmitted to the Directorate, the IT Office had been entitled to continue its investigative activities, as the 210-day deadline provided for the CONSOB’s deliberations had not been binding. Furthermore, the adversarial principle was complied with if, as in the present case, those charged had been informed of the new evidence obtained by the IT Office and had had an opportunity to submit their replies. 33. The court of appeal also noted that it was true that the CONSOB had both imposed the penalties provided for by Article 187 ter of Legislative Decree no. 58 of 1998 and reported the case to the prosecuting authorities, alleging that the criminal offence described in Article 185 § 1 of the same decree had been committed. Under the terms of this provision, “Anyone who disseminates false information, carries out simulated transactions or uses other ploys (artifizi) which are objectively capable of triggering a significant change in the value of financial instruments shall be punishable by between one and six years’ imprisonment and a fine of 20,000 to 5,000,000 euros.” 34. According to the court of appeal, those two provisions had as their subject-matter the same conduct (the “dissemination of false information”) and pursued the same aim (to prevent market manipulation), but differed with regard to the situation of risk alleged to have been generated by this conduct: in respect of Article 187 ter, it was sufficient in itself to have given false or misleading indications concerning financial instruments, while Article 185 further required that that information had been such as to trigger a significant change in the price of the instruments in question. As the Constitutional Court had indicated in its order no. 409 of 12 November 1991, it was open to the legislature to punish illegal conduct both by a pecuniary administrative sanction and by criminal penalties. In addition, Article 14 of Directive 2003/6/EC (see paragraph 60 below), which invited the member States of the European Union to apply administrative sanctions against persons responsible for manipulating the market, contained in turn the phrase “without prejudice to the right of Member States to impose criminal sanctions”. 35. On the merits, the court of appeal observed that it was clear from the case file that the renegotiation of the equity swap had been examined in minute detail at the relevant date and that the conclusion reached by the CONSOB (namely, that this plan already existed one month prior to 24 August 2005) had been reasonable in the light of the established facts and the conduct of the persons concerned. 36. As to Mr Grande Stevens, it was true that he was not an executive director of Exor s.p.a. Nonetheless, the administrative offence punishable under Article 187 ter of Legislative Decree no. 58 of 1998 could be committed by “anyone”, and therefore by a person in any capacity whatsoever; Mr Grande Stevens had indeed participated in the decision-making process which had led to publication of the press release in his capacity as a lawyer consulted by the applicant companies. 37. The applicants appealed on points of law. In the third and fourth grounds of their points of appeal, they alleged, inter alia, that there had been a breach of the principles of a fair hearing, enshrined in Article 111 of the Constitution, because, in particular: the investigative phase of the CONSOB proceedings had not been adversarial in nature; there had been a failure to transmit the Directorate’s report to the accused; in the applicants’ view, it had been impossible to file pleadings with or be heard in person by the Commission; the IT Office had continued its investigation and transmitted a supplementary note after expiry of the time-limit set for that purpose. 38. By judgments of 23 June 2009, the text of which was deposited with the registry on 30 September 2009, the Court of Cassation dismissed their appeals on points of law. It considered, in particular, that the principle of an adversarial examination of the case had been complied with in the proceedings before the CONSOB, noting that the latter had indicated to the applicants the acts with which they were charged and taken account of their respective defence submissions. The fact that the applicants had not been questioned and that they had not received the Directorate’s conclusions had not been in breach of that principle, since the constitutional provisions regarding a fair hearing and the right of defence were applicable only to judicial proceedings, and not to proceedings to impose administrative sanctions. 39. Under Legislative Decree no. 58 of 1998, the applicants’ impugned conduct could be the subject-matter not only of an administrative sanction, imposed by the CONSOB, but also of the criminal penalties provided for in Article 185 § 1, cited in paragraph 33 above. 40. On 7 November 2008 the applicants were committed for trial before the Turin District Court. They were accused of having stated, in the press releases of 24 August 2005, that Exor wished to remain FIAT’s reference shareholder and that it had neither initiated nor examined initiatives with regard to the expiry of the financing contract, although the agreement amending the equity swap had already been examined and concluded, information that had been withheld in order to avoid a probable fall in the FIAT share price. 41. CONSOB applied to be joined to the proceedings as a civil party, a possibility open to it under Article 187 undecies of Legislative Decree no. 58 of 1998. 42. After 30 September 2009, the date on which the judgment dismissing the applicants’ appeal on points of law against the penalties imposed by the CONSOB was deposited with the registry (see paragraph 38 above), the applicants requested that the criminal proceedings against them be discontinued, by virtue of the non bis in idem rule. In particular, at the hearing of 7 January 2010, they argued that the relevant provisions of Legislative Decree no. 58 of 1998 and Article 649 of the Code of Criminal Procedure (“the CCP” - see paragraph 59 below) were unconstitutional, on account of their alleged incompatibility with Article 4 of Protocol No. 7. 43. The representative of the prosecuting authorities opposed this objection, alleging that “double proceedings” (administrative and criminal) were imposed by Article 14 of Directive 2003/6/EC of 28 January 2003 (see paragraph 60 below), which the Italian legislature had transposed by enacting Articles 185 and 187ter of Legislative Decree no. 58 of 1998. 44. The Turin District Court did not immediately rule on the ancillary question of constitutionality raised by the defence. It ordered an expert report describing the fluctuations in FIAT shares between December 2004 and April 2005 and evaluating the effects of the press releases of 24 August 2005 and the information made public on 15 September 2005. 45. By a judgment of 21 December 2010, the text of which was deposited with the registry on 18 March 2011, the Turin District Court acquitted Mr Marrone on the ground that he had not been involved in the publication of the press releases, and also acquitted the other applicants on the ground that it had not been proven that their conduct had been such as to trigger a significant change in the financial markets. It noted that the fact that the press releases contained false information had already been punished by the administrative body. In the court’s view, the applicants’ impugned conduct had, probably, been aimed at concealing the renegotiation of the equity swap contract from the CONSOB, and not at increasing FIAT’s share price. 46. The court held that the ancillary question of constitutionality raised by the applicants was manifestly ill-founded. It noted that Italian law (section 9 of Law no. 689 of 1981) prohibited “double proceedings” (doppio giudizio), criminal and administrative, in respect of the “same act”. However, Articles 185 and 187 ter of Legislative Decree no. 58 of 1998 did not punish the same act: only the criminal provision (Article 185) required that the conduct be such as to cause a significant change in the value of financial instruments (it referred to judgment no. 15199 of the Court of Cassation (Sixth Section), of 16 March 2006). In addition, application of the criminal provision required the existence of malicious intent, while the administrative provision was applicable as soon as culpable conduct was established. Moreover, the criminal proceedings which had followed the imposition of the financial penalty provided for by Article 187 ter of Legislative Decree no. 58 of 1998 were authorised by Article 14 of Directive 2003/6/EC. 47. As to the case-law of the Court cited by the applicants (Gradinger v. Austria (23 October 1995, Series A no. 328-C), Sergey Zolotukhin v. Russia [GC], no. 14939/03, ECHR 2009), Maresti v. Croatia (no. 55759/07, 25 June 2009) and Ruotsalainen v. Finland (no. 13079/03, 16 June 2009)), it was not relevant to this case, since it concerned cases where a single act had been punished by criminal and administrative penalties and where the latter had a punitive element and could include a custodial sentence or (as in the Ruotsalainen case) were for a sum higher than the criminal fine. 48. The public prosecutor’s office appealed on points of law, alleging that the offence with which the applicants had been charged was one “of danger” (reato di pericolo) and not “of damage” (reato di danno). It could therefore be committed even in the absence of damage having been sustained by the shareholders. 49. On 20 June 2012 the Court of Cassation allowed in part the prosecuting authorities’ appeal on points of law and quashed the acquittal of the companies Giovanni Agnelli and Exor, and those of Mr Grande Stevens and Mr Gabetti. However, it upheld the acquittal of Mr Marrone, given that he had not taken part in the impugned conduct. 50. By a judgment of 28 February 2013, the Turin Court of Appeal convicted Mr Gabetti and Mr Grande Stevens of the offence set out in Article 185 § 1 of Legislative Decree no. 58 of 1998, considering it highly probable that, had the false information included in the press release of 24 August 2005 not been issued, the value of FIAT’s shares would have fallen much more sharply. However, it acquitted the companies Exor and Giovanni Agnelli, holding that no criminal acts could be imputed to them. 51. The court of appeal held that there was no appearance of a violation of the ne bis in idem principle, thus endorsing the main thrust of the Turin District Court’s reasoning. 52. According to the information provided by the Government on 7 June 2013, Mr Gabetti and Mr Grande Stevens appealed on points of law against that judgment, and the proceedings were still pending at that date. In their appeals, these two applicants relied on a violation of the ne bis in idem principle and asked that an ancillary question of constitutionality be raised in respect of Article 649 of the Code of Criminal Procedure. ... | 1 |
test | 001-174059 | ENG | RUS | COMMITTEE | 2,017 | CASE OF RATKIN v. RUSSIA | 4 | Violation of Article 6+6 - 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;Article 6-3-d - Examination of witnesses) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicant was born in 1966 and lived, prior to his conviction, in the Tver Region. 5. On 21 November 2000 a country house which belonged to a district prosecutor was set on fire. 6. On 8 February 2002 F. confessed that the applicant had conspired with him to set fire to the prosecutor’s summer house. On the same date the applicant was arrested. He was released on 11 February 2002 on an undertaking not to leave his place of residence. 7. On 10 December 2003 I. and A. stabbed F. to death. 8. On an unspecified date the applicant was arrested on suspicion of having organised F.’s murder. He remained in custody pending investigation and trial. 9. On 6 February 2004 the Kashin Town Court found the applicant guilty of arson. On 25 May 2004 the applicant’s conviction became final. 10. On 23 June 2004 a local newspaper, Veche Tveri, published an article under the headline ‘Vengeance’. According to the article, the applicant had stood for local elections. However, he had been disqualified by a court at the request of the district prosecutor. The applicant had plotted revenge. He had paid F. to set fire to the prosecutor’s country house. The house had completely burned down. When questioned by the investigator, F. had confessed to arson and had testified against the applicant. Shortly thereafter F. had been found stabbed to death. The article then quoted from the official information note issued by the regional prosecutor’s office: “The investigation has established’, states the information note, ‘that in 2003 [the applicant] and F[.] had an argument ... [;] [the applicant] started to fear that he could no longer control F[.] and that the latter would not only interfere with his plan to protract the trial but would give truthful testimony incriminating him in the arson of [the prosecutor’s] country house ... . [The applicant] organised F.’s murder to silence him. The murder was carried out by two residents of the town of Kalyazin, who were charged with F.’s murder.” 11. According to the applicant, several more articles reporting on the arson and murder cases were published in the local press at around the same time. On 15 July 2004 a TV programme “Police unit on duty” (Дежурная часть) broadcast daily on the federal RTR channel, covered the applicant’s case. 12. The jury trial started on 16 August 2004. At the beginning of the trial the presiding judge asked the jurors whether they had read about the case in newspapers or heard about it from other sources. All the jurors answered in the negative. They also stated that they had not yet formed any opinion about the defendants’ guilt or innocence. 13. At the hearing of 24 August 2004 the court examined the prosecution witness Sh. At the request of the prosecutor, the written statements he had made during the investigation were read out to the jury. Sh. then explained that his statements to the investigator had been more detailed and precise, as at the time of the investigation he had remembered the events better. The applicant was then allowed to put questions to Sh. The relevant excerpt from the record reads as follows: “[The applicant asks]: ‘How many times were you questioned? Were your statements to the investigator voluntary?’ The presiding judge rules [the applicant’s] question out of order and warns him that he should not [raise issues] of admissibility of evidence in the presence of the jury as it may be considered an attempt to influence the jury. [The applicant asks]: ‘What state were you in when giving those statements?’ The presiding judge rules [the applicant’s] question out of order and warns him that if he continues to put questions concerning admissibility of evidence he may be excluded from the hearing room. [The applicant says]: ‘The witness was drunk, the police officers had given him alcohol, he was made [temporarily] insane.” The presiding judge interrupts [the applicant] and directs the jury to disregard [his] remarkds about the circumstances in which Sh. was questioned, as this issue is not within the competence of the jury. [The applicant continues]: ‘All the evidence has been forged and the case does not hold water.’ Taking into account [the applicant’s] repeated attempts to influence the jurors, the presiding judge decides to exclude him from the courtroom. The presiding judge directs the jurors that they should disregard [the applicant’s statements] ... and should proceed from the understanding that all evidence presented to them ... was collected in accordance with the procedure established by law and was not [declared inadmissible].” 14. The trial court continued the hearing in the applicant’s absence. Further hearings were held on 25 and 26 August 2004. The applicant was not brought to the courtroom. All hearings were attended by his counsel. During those hearings several witnesses and the applicant’s co-defendants testified. One of the co-defendants pleaded not guilty, while the other confessed to the murder and stated that he had committed it on the applicant’s instructions and had received remuneration from him. 15. The applicant was brought to the courtroom at the end of the hearing of 26 August 2004 and was allowed to make a closing statement. The applicant pleaded not guilty. The jury delivered a guilty verdict. They found it established that applicant had hired I. and A. to murder F. 16. The presiding judge indicated in the verdict that (1) the applicant’s actions, as established by the jury, should be characterised as incitement to murder, and (2) the jury had not established that the applicant had been the organiser of the murder or had directed its execution. 17. On 2 September 2004 the Tver Regional Court found the applicant guilty of incitement to murder and sentenced him to seventeen years’ imprisonment. 18. The applicant appealed. In particular, he complained that his presumption of innocence had been violated by publications in the press, that he had been removed from the courtroom and that the presiding judge had recharacterised his offence after the jury had delivered the verdict. He also complained that the evidence had been assessed inaccurately and that he had been found guilty of the crime he had not committed. 19. On 9 February 2005 the Supreme Court of the Russian Federation upheld the judgment on appeal. The court noted, in particular, as follows: “... as regards the [applicant’s] removal from the courtroom, [the appeal court] finds that the presiding judge’s decision was in full compliance with [the applicable rules of criminal procedure]. [The applicant] repeatedly breached the order in the courtroom and attempted to influence the jurors. The presiding judge repeatedly reprimanded [the applicant], warned him and explained to him the consequences of [his] conduct. However, [the applicant] chose to ignore [the warnings]. Accordingly the decision to remove [the applicant] from the courtroom was justified. In those circumstances, the counsel’s argument that [the applicant’s] right to participate directly in the examination of the evidence and to defend himself in person was violated is unfounded. [The applicant] waived his rights. ... [The applicant’s] argument that the publications in the media ... negatively influenced the jurors should be rejected as unfounded. Before the commencement of the trial all jurors replied in the negative to the question whether they had heard about the case from the media ... . The defendants’ actions established in the verdict received the correct legal characterisation. It was permissible to change the legal characterisation of [the applicant’s] actions from organisation of murder to incitement to murder, as the new legal characterisation was based on the same evidence as established in the verdict. [The applicant’s] defence rights were not violated.” | 1 |
test | 001-181432 | ENG | PRT | ADMISSIBILITY | 2,018 | A.D. v. PORTUGAL | 4 | Inadmissible | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani | 1. The applicant, Mr A.D., is a Portuguese national who was born in 1966 and lives in Porto. On 10 August 2017 the Court decided of its own motion to grant the applicant anonymity (Rule 47 § 4 of the Rules of Court). The applicant was represented before the Court by Mr H.V. de Carvalho, a lawyer practising in Porto. 3. The applicant’s daughter, C.H., was born on 25 March 2014. C.H.’s mother, L.G., was not living with the applicant. 4. On an unknown date in May 2014 the applicant took L.G. and C.H. to a temporary accommodation centre (Centro de Acolhimento temporário – CAT) in Campo Lindo because he could not afford to house them. 5. On an unspecified date L.G. left the centre. 6. On 18 June 2014 an oral hearing took place before the Porto Family Court (domestic proceedings no. 1/1.3TBCDV-A). During the hearing, the applicant declared that he would agree to having C.H. placed in the care of an institution, since he was unable to provide the necessary conditions in which to raise her. L.G. also agreed with the measure of institutional care and expressed her consent to C.H. staying in the care of the applicant at a later stage because she did not have the means to take care of her. Following those statements, the judge of the Porto Family Court decided to apply a provisional measure, consisting of placing C.H. in institutional care. 7. At the conclusion of the hearing, the applicant, L.G. and two representatives of the CAT signed an agreement on the raising and protection (acordo de promoção e proteção) of C.H. Under the agreement, C.H. was to be placed in the temporary care of the CAT of Campo Lindo for six months and her parents could visit her in accordance with the rules set by the centre. The agreement was signed by the judge. 8. On 20 January 2016 the applicant was sent for psychiatric and psychological assessments. The relevant expert reports, dated 16 March 2016 and 18 April 2016, were received by the Family Court of Porto on 22 March 2016 and 20 April 2016. The report of 16 March 2016 of the psychiatric expert concluded that the applicant had the capacity to exercise a parental role. The report of 18 April 2016 of the psychological expert reached the opposite conclusion on the ground that by concentring excessively in his own needs, the applicant lacked the capacity to understand the needs of his daughter. On 27 May 2016 the psychiatric expert sent to the court a clarification note. Referring to a warrant issued by the German authorities which indicated, inter alia, that the applicant had been convicted to a term of three years and five months’ imprisonment for sexual assault and bodily harm, the expert assumed that the applicant had a personality “with psychopathic features”, which undermined his capacity to exercise a parental role. 9. On 13 July 2016, the CAT sent the court a social report concerning the situation of C.H. in the centre. The report’s conclusion was that C.H. should be referred for adoption, given that her mother had stopped visiting her two years previously and the applicant had not taken any concrete action aimed at assuming his responsibilities towards her. 10. On 11 October 2016, the Multidisciplinary Advisory Team (Equipa Multidisciplinar de Assessoria ao Tribunal – EMAT) of Aveiro sent the court a report about an interview that had taken place with a brother of the applicant. According to this report, the brother of the applicant had stated that he did not know about the birth of C.H. and that he did not have the means to take her into his care. He had also mentioned that he had had no news of another brother for many years and that he did not recommend that C.H. be placed in the care of her father, without specifying the reason. 11. In October 2016 the CAT decided to reduce the applicant’s authorised visits from two to one a week, owing to his lack of initiative in determining how he could play a role (encontrar um projeto de vida) in his daughter’s future. 12. On 25 October 2016 a lawyer appointed to represent the applicant applied to the Family Court, stating that he had not been contacted by the applicant. He explained that on 13 September 2016 he had sent the applicant a registered letter which had been returned. On 13 October 2016 he had sent two more letters, one registered and the other one not registered, to which he was still waiting for an answer. 13. On 6 December 2016 the Family Court of Porto held an adversarial hearing (debate judicial). The applicant as well as three witnesses, namely an officer of the EMAT, a social worker from the Campo Lindo CAT and the director of the Campo Lindo CAT were heard by the court. 14. By a judgment of 6 December 2016, the Porto Family Court ordered that C.H. be taken into care with a view to adoption, revoked the applicant’s parental responsibility and forbade all contacts between him and C.H., pursuant to Articles 1978 and 1978-A of the Civil Code. Relying on the witnesses’ statements and on the conclusion of a psychiatric report dated 27 May 2016, the court considered the following as relevant established facts: “... 5. L.G. stopped visiting C.H. in September 2014 ... 6. L.G. has not tried to receive, in any way, news concerning C.H. ... 7. No other family member has ever tried to visit C.H. ... 11. The father [applicant] was always present for the visits, twice per week, except for the period of one month in October 2015 in which he did not visit C.H. ... 13. [The father] lives away from his family (vive afastado da família). 14. Except during the hearing, the father has never expressed the will to care for C.H. 15. Although he has mentioned some family members and friends that could care for C.H., [the father] has never introduced any of them. 16. He has only indicated his willingness to find someone to take care of his child when confronted by [staff of the centre]. 17. Since last October [October 2016] the father’s visits occur once per week, by a decision of the accommodation centre based on the fact that he has not defined his role in his daughter’s upbringing (não se assumir como projecto de vida para a filha). 18. The child does not ask about her father when she is not with him. 19. She calls him “father” and the visits are not problematic. 20. The visits are playful and C.H. identifies her father as someone to play with. 21. C.H. does not show any signs of sadness when her father does not visit or when he leaves. 22. At the present date, the father intends to define his role in his daughter’s upbringing, requesting 6 more months to organise it, namely in economic terms, in order to execute that project. 23. The father has ‘a personality with psychopathic features characterised by instability and impulsivity, which undermines the exercise of a parental role’. ...” 15. The court further considered that, in accordance with Article 1978 § 2 of the Civil Code, the best interests of the child should prevail over the parents’ interests as well as her integration in her biological family. However, as far as the mother, L.G., was concerned, it found that the conditions of paragraph 1 (e) of Article 1978 of the Civil Code had been fulfilled, since she had not contacted C.H., nor tried to do so, for a period of over two years. 16. Concerning the applicant, the court, relying on the established facts, considered that: - he had not undertaken any concrete measures to find an alternative to the institutional care; - he had never taken the initiative of defining his role (encontrar um projeto de vida) in C.H.’s upbringing; - C.H. did not have an emotional bond with her father, considering him as someone with whom to play, and never asked about him; and - the father’s attitude during the proceedings had consisted of repeatedly requesting time to find a solution for his daughter’s upbringing but he never came out with one. 17. The Porto Family Court also emphasised that there was no option for a member of the extended family to take C.H. into their care. It considered that there were no perspectives of any change in C.H.’s situation within a short period of time and that six months in the life of a three-year-old child was a long time. 18. Lastly, the Porto Family Court relied on the conclusion of the psychiatric expert report of 27 May 2016, in which it had been stated that the father’s personality was characterised by features that undermined the exercise of a parental role. The domestic court thus concluded that the conditions of paragraph 1 (d) of Article 1978 of the Civil Code had been fulfilled with regard to the applicant. 19. On 16 December 2016 the applicant appealed against the first-instance decision to the Porto Court of Appeal. He argued that the Porto Family Court should not have concluded that there was no emotional tie between himself and C.H., because it was in contradiction with other established facts and with the witnesses’ statements. The applicant further argued that the court should not have found it established that he had made no efforts to create the necessary conditions in which to raise C.H. because the witnesses’ statements had indicated the opposite; the applicant claimed that he had made numerous efforts to change his living conditions. In addition, the applicant contested established fact no. 23, that he had “a personality with psychopathic features characterised by instability and impulsivity, which undermines the exercise of a parental role”. He claimed that the court’s reasoning was not clear with regard to the reasons supporting that established fact. According to the applicant’s allegations, a first report dated 20 January 2016 had considered that “the applicant did not have any psychiatric illness” and that he “was aware of the specific needs of children in different development stages and that he had the mental and emotional abilities to undertake the role of a father figure”. In the applicant’s view, the Family Porto Court had not provided reasons for its decision to give more weight to the report of 27 May 2016 than to the one of 20 January 2016. Lastly, the applicant argued that the requirements to make a decision on placing his child for adoption, in particular those of Article 1978 § 1 (d), were not applicable to him. In his view, the only element he lacked in order to raise C.H. was a better financial situation. 20. On 4 January 2017 the Porto Family Court found the appeal admissible and ordered that the case file be sent to the Porto Court of Appeal. In its decision, it maintained the suspension of contacts between the applicant and C.H. 21. On 24 January 2017 the Porto Court of Appeal dismissed the applicant’s appeal and upheld the Family Court’s judgment. After examining the evidence produced at first instance, it confirmed the facts that had been considered established. 22. The Porto Court of Appeal found that it resulted from the witnesses’ statements that C.H. did not regard the applicant as her father, but as someone with whom to play. Regarding the applicant’s efforts to improve his financial situation and to define his role in his daughter’s upbringing, the Appeal Court laid emphasis on the fact that he had not found any solution, regardless of the effort he had dedicated to doing so. 23. Concerning the psychiatric expert reports, the Court of Appeal referred to the fact that the report of 27 May 2016 had been requested with the intention of receiving clarifications, in the light of a warrant issued by the German authorities which had been submitted to the proceedings on 4 December 2015. The warrant indicated that the applicant had been convicted for sexual assault and bodily harm (agressão sexual em concurso com lesão corporal dolosa) and sentenced to three years and five months’ imprisonment. He had also lost the possibility of holding public office in Germany or being elected until 12 March 2017 and had been banned from employing, supervising, instructing and training young persons. 24. The court concluded that the two psychiatric reports were not contradictory, as both mentioned that the applicant did not have a psychiatric illness; the report of 27 May 2016 only added to that of 20 January 2016 that the applicant had a “personality with psychopathic features”. 25. The Appeal Court considered that measures capable of integrating a child in his or her biological family should prevail. If the biological family could not fulfil its duties to take care of the child, then adoption should be considered. In this connection, the Appeal Court focused its reasoning on the family situation. 26. Regarding L.G., the Court of Appeal noted that she had been a victim of sexual abuse and physical violence during her life and that she had attempted suicide several times. It also noted that she was in a fragile financial situation. 27. Looking at the applicant’s past, the court noted that his life had been characterised by instability, without any known emotional ties. It also noted that he was unemployed, was a beneficiary of the minimum income allowance (Rendimento Social de Inserção) and was living in a rented room. 28. Furthermore, the court found that the applicant did not have the competence, maturity or lifestyle necessary to create a favourable environment in which to raise a child. The court expressed understanding of the applicant’s affection for C.H. and his disappointment with the current situation, but emphasised that the child’s developmental needs should prevail. 29. On an unknown date the applicant sought leave to appeal to the Supreme Court of Justice. He submitted a request to lodge an ordinary appeal under Article 671 of the Code of Civil Procedure or, alternatively, an exceptional appeal (recurso de revista excecional) under Article 672 of the Code of Civil Procedure. 30. On 14 March 2017 the Porto Court of Appeal declared the appeal inadmissible on the grounds that decisions adopted on grounds of “suitability or appropriateness” (conveniência ou oportunidade) were not amenable to appeal before the Supreme Court of Justice. 31. On an unknown date the applicant challenged that decision before the Supreme Court of Justice. 32. On 11 May 2017 the Supreme Court of Justice declared the appeal inadmissible on the grounds that the Appeal Court had fully upheld the first-instance decision (dupla conforme). It further considered that the applicant had not submitted clear arguments that would justify an exceptional appeal. 33. Following a request from the applicant made in a letter of 30 July 2017, on 10 August 2017 the Court granted an interim measure pursuant to Rule 39 of the Rules of Court, indicating to the Government that the adoption of the applicant’s child should be stayed and his contacts with his child reinstated until the end of the proceedings before the Court. 34. On 23 August 2017 the Government contested the Court’s decision concerning the applicant’ 35. Following a request for information, on 12 September 2017 the Government submitted relevant case-file documents in order to contest the interim measure that had been applied. 36. The relevant provisions of the Civil Code, as in force at the relevant time, read as follows: Placement with a view to adoption “1. In the context of promotion and protection proceedings, the court may place a child into care with a view to future adoption if the emotional ties characteristic of a parent-child relationship do not exist or have been seriously undermined, subject to any of the following circumstances: ... d) if the parents, by a wilful act or omission, even if for a manifest inability due to reasons of mental illness, seriously endanger the safety, health, upbringing, education or development of the child; e) if the parents of a child taken into care by a person, an institution or a family have revealed a manifest lack of interest for their child in such a way that the quality and continuity of those ties are compromised for a period of at least three months preceding the request for placement in care. 2. The court shall take into consideration primarily the rights and interests of the child when assessing the above-mentioned circumstances. 3. A child is considered to be in danger if any of the circumstances indicated in the legislation on the protection and promotion of the rights of children prevail.” Effects of judicial placement ... in an institution with a view to adoption “Once placement ... in an institution has been ordered with a view to adoption, parental responsibility is withdrawn from the parents.” | 0 |
test | 001-157283 | ENG | RUS | CHAMBER | 2,015 | CASE OF KOVYAZIN 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) | András Sajó;Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The first applicant, Mr Kovyazin, was born in 1986 and lives in Kostino, Kirov Region. The second applicant, Mr Savelov, was born in 1979 and lives in Moscow. The third applicant, Mr Gushchin, was born in 1988 and lives in Khimki, Moscow Region. 6. 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 had to end at 7.30 p.m. Numerous clashes between the police and protesters occurred when the marchers arrived at Bolotnaya Square. At 5.30 p.m. the police declared the early closure of the meeting and began to disperse the participants. It took them about two hours to clear the protestors away from the square. 7. On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate the suspected mass disorders and violent acts against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was remitted to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 the investigation was also launched into the criminal offence of organising mass disorders (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day. 8. All applicants took part in the demonstration of 6 May 2012 at Bolotnaya Square. They were arrested on later dates indicated below and charged with participation in mass disorders; the second and the third applicants were also charged with having committed violent acts against the police officers. They were detained and tried on these charges, and the second and the third applicants have been convicted as charged, while Mr Kovyazin had been exempted of liability under the Amnesty Act. 9. The complaints to be examined in the present case concern various aspects of the applicants’ pre-trial detention. 10. From 2006 to 2012 the applicant studied culture and history at the Vyatskiy State University in Kirov while working part-time as a videooperator for a newspaper “Vyatskiy Nablyudatel”. On 1 May 2012 he dropped out of the university. 11. On 4 May 2012 the applicant received an assignment from the newspaper to attend the “March of Millions” on 6 May 2012 and to take video footage of the event. 12. The applicant claimed that on 6 May 2012 he arrived at Bolotnaya Square, filmed the event and did not take part in any disorders or clashes with the police. 13. On 15 May 2012 the applicant submitted the footage to the newspaper and it was published on its website. 14. Until 5 September 2012 the applicant continued working and living at his usual address. On the latter date he was detained and charged under Article 212 § 2 of the Criminal Code (participation in mass disorders). He was accused of having breached public order during the demonstration on 6 May 2012, in particular, of having turned over portable toilet cabins and having piled them on the road to build a barrier obstructing the riot police. 15. On 7 September 2012 the Basmannyy District Court of Moscow ordered the applicant’s pre-trial detention until 5 November 2012 on the grounds of the gravity of the charges and for the following reasons: “Having regard to the circumstances of the offence under investigation, the personality of the accused, the information objectively put forward by the investigating authority, the court concludes that [the applicant], if at liberty, after being charged with a grave criminal offence will prefer, out of fear of sanctions, to abscond the investigation and trial, [or] may act in person or through proxy with the aim of avoiding criminal liability, continue [his] criminal activity, destruct the evidence and otherwise obstruct the investigation. Operational-search activities are now underway, aimed at establishing [the applicant’s] possible connections with other active participants of the mass disorders which took place at Bolotnaya Square in Moscow and the adjacent territory, therefore, if at liberty, [he] may co-ordinate his position with unidentified accomplices whose identities are still being established by the investigation. ... ... selecting in respect of [the applicant] another, milder, preventive measure is not possible because it cannot rule out the very possibility for the suspect to obstruct the investigation of the criminal case, and to abscond from the bodies of criminal prosecution and trial. ... No factual information excluding the detention of [the applicant] on health grounds has been submitted to the court ...” 16. On 1 October 2012 the Moscow City Court upheld the detention order of 7 September 2012. 17. On 30 October 2012 the Basmannyy District Court of Moscow examined a request for an extension of the applicant’s pre-trial detention. The applicant requested to select another preventive measure pending trial. He offered a bail of 750,000 Russian roubles (RUB), or four personal guarantee signed by his professors and colleagues. His request for an alternative preventive measure was supported by six petitions signed by 45 journalists and editors of newspapers, periodicals and on-line media: “Novaya Gazeta”, “Esquire”, “Kommersant”, “Vyatskiy Nablyudatel”, “Afisha” and “Grani.ru”. The applicant also requested release on health grounds. 18. On the same day the court granted an extension of the applicant’s pre-trial detention until 6 March 2013, having noted that the applicant was likely to abscond, to continue his criminal activity, to threaten witnesses, or to otherwise obstruct the course of justice. 19. On 28 November 2012 the Moscow City Court upheld the extension order of 30 October 2013. 20. On 4 March 2013 the Basmannyy District Court granted an extension of the applicant’s pre-trial detention until 6 July 2013, essentially on the same grounds as before. 21. On 3 April 2013 the Moscow City Court upheld the extension order of 4 March 2013. 22. On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of the criminal charges. 23. On 6 June 2013 the latter court granted another extension of the applicant’s detention until 24 November 2013. This decision concerned eleven defendants and read in so far as relevant as follows: “... the court concludes that the preventive measure in respect of [all defendants] ... is to remain unchanged because the reasons taken into account when these measures were chosen have not ceased to exist and have not changed ... ... [the defendants] are accused of [grave crimes punishable by prison sentences] ... Having regard to all information about the personality of [the defendants] and the nature of the crimes imputed to each of them, the court still has sufficient grounds to believe that the said defendants, if at liberty, may flee the trial or otherwise obstruct the course of justice, [motivated by] the gravity of the charges. ... no other measures of restraint would secure the aims and goals of the judicial proceedings.” 24. On 2 July 2013 the Moscow City Court upheld the extension order of 6 June 2013. 25. 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 charges. It held, in particular, as follows: “[The defendants] are charged with a criminal offence provided for by Article 212 § 2 of the Criminal Code, which belongs to the category of grave crimes punishable by a prison sentence of over three years. Furthermore, [some defendants] are charged with a criminal offence provided for by Article 318 § 1 of the Criminal Code, also punishable by a prison sentence of over three years. Despite the defendants being registered as having permanent residence addresses in the Russian Federation, the analysis of the overall information about [the defendants’] personalities, and the nature of the offences imputable to them, give the court sufficient grounds to consider that the defendants, if the preventive measure is changed to another one unconnected with the deprivation of liberty, may flee the trial or otherwise obstruct the course of justice, [motivated by] the gravity of the charges ... the reasons taken into account when these measures were chosen have not ceased to exist and have not changed ...” 26. On 17 December 2013 the Moscow City Court upheld the extension order of 19 November 2013. 27. On 18 December 2013 the State Duma passed the Amnesty Act which concerned persons charged with offences punishable with prison sentences of up to five years. 28. On 19 December 2013 the applicant requested the termination of the criminal proceedings against him by operation of the Amnesty Act. On the same day the Zamoskvoretskiy District Court granted the request and released him from detention. 29. At the time of arrest he applicant was unemployed and lived with his parents. On 6 May 2012 he took part in the demonstration at Bolotnaya Square. According to the applicant, at one point a stampede occurred and he was accidentally pushed through the police cordon and was arrested without any resistance on his part. On the same day he was charged with noncompliance with a lawful order by a police officer, an offence under Article 19.3 of the Code of Administrative Offences, and he was released, having committed to attend the court hearing of the administrative case on 8 May 2012. 30. On 8 May 2012 the applicant was convicted of non-compliance with a lawful order by a police officer, an offence under Article 19.3 of the Code of Administrative Offences. He was sentenced to a 24-hour’ detention. 31. On 11 June 2012 the applicant was detained on suspicion of having participated in mass disorders on 6 May 2012. He was charged with the offences provided for by Articles 212 § 2 of the Criminal Code (participation in mass disorders) and 318 § 1 (violence against a public official). He was accused, in particular, of having attempted to break through the police cordon and of having pulled a police officer on the hands and wrists towards the crowd. On the same day the Basmannyy District Court authorised the applicant’s 72-hours’ detention. 32. On 14 June 2012 the Basmannyy District Court examined and granted the request to detain the applicant pending criminal investigation. It dismissed the applicant’s request for an alternative preventive measure, including a RUB 150,000 bail, a personal guarantee or a house arrest, and ordered the applicant’s detention on remand until 11 August 2012 for the following reasons: “Assessing the circumstance under investigation, the submitted materials and the indicated information in their integrity, as well as the personality of [the applicant], who is suspected of having committed criminal offences characterised as grave, punishable by up to two years of deprivation of liberty, give sufficient reasons to believe that the applicant is likely to abscond, to continue his criminal activity, to destruct evidence, or to otherwise obstruct the investigation of the criminal case. ... selecting another, milder, preventive measure is not possible because it cannot rule out the very possibility that the suspect will abscond from the bodies of criminal prosecution and trial, or obstruct the investigation of the criminal case.” 33. On 18 June 2012 the applicant filed an appeal, which was dismissed by the Moscow City Court on 11 July 2012. 34. On 9 August 2012 the Basmannyy District Court examined a request for an extension of the applicant’s pre-trial detention. The applicant objected, having reiterated his request for an alternative preventive measure. On the same day the court extended the applicant’s pre-trial detention until 6 November 2012, having noted that there remained sufficient reasons to believe that the applicant was likely to abscond, to continue his criminal activity, to threaten witnesses, or to otherwise obstruct the course of justice. 35. On 10 August 2012 the applicant filed an appeal, which was dismissed by the Moscow City Court on 10 September 2012. 36. On 2 November 2012 the Basmannyy District Court granted another extension of the applicant’s detention, until 6 March 2013, essentially on the same grounds and having noted that the circumstances which had justified the detention order had not changed. This extension order was upheld by the Moscow City Court on 28 November 2012. 37. On 28 February 2013 the Basmannyy District Court granted another extension of the applicant’s detention, until 11 June 2013, essentially on the same grounds as before and having noted that the circumstances which had justified the detention order had not changed. This extension order was upheld by the Moscow City Court on 17 April 2013. 38. On 23 April 2013 the Moscow City Court examined a fresh request for the extension of the applicant’s detention and granted it until 6 July 2013. It held, in particular, as follows: “The materials presented [by the investigator] reveal that the grounds for choosing the preventive measure in respect of [the applicant] were not only the gravity of the charges but also the information about the personality of [the applicant] who could abscond the investigation and trial, threaten witnesses or otherwise obstruct the proceedings in the case, if released. The aforementioned grounds ... ... This term is reasonable, [it] is justified by the objective circumstances, it is not in conflict with the term of the pre-trial investigation, also extended on the same grounds. ... In accordance with the Constitutional Court’s [case-law], the proportionality of the preventive measure to the [gravity of the] charges imputed to [the applicant] show that in this case the public interests, in particular those related to the criminal investigation, override the importance of the principle of respect of individual liberty.” 39. On 27 June 2013 the Moscow City Court acting as appeal instance upheld the same court’s extension order of 23 April 2013. 40. On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court for the determination of the criminal charges. 41. On 6 June 2013 the latter court extended the pre-trial detention of all eleven defendants, including the applicant, until 24 November 2013 (see paragraph 23 above). This decision was upheld by the Moscow City Court on 2 July 2013. 42. On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant, until 24 February 2014 (see paragraph 25 above). This extension order was upheld by the Moscow City Court on 17 December 2013. 43. On 21 February 2014 the Zamoskvoretskiy District Court found the applicant guilty as charged. He was sentenced to two years and seven months of imprisonment. The applicant’s pre-trial detention was counted towards the prison term. 44. On 20 June 2014 the Moscow City Court upheld the first-instance judgment. 45. In December 2014 the applicant was released after having served his prison term. 46. At the time of his arrest the applicant was a student, working parttime. On 6 May 2012 he took part in the demonstration at Bolotnaya Square, and after that date until 6 February 2013 he continued living at his usual address and pursued his usual activities. 47. On 6 February 2013 the applicant’s flat was searched and his travel passport was seized. The applicant was arrested on suspicion of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012. He was charged with the offences provided for by Articles 212 § 2 of the Criminal Code (participation in mass disorders) and 318 § 1 (violence against a public official). He was accused, in particular, of having snatched a police officer’s uniform and pulling him away to prevent him from arresting another protestor. 48. On 7 February 2013 the Basmannyy District Court ordered the applicant’s pre-trial detention until 6 April 2013, having dismissed the applicant’s request for an alternative preventive measure, such as house arrest. The court reasoned as follows: “In assessing the circumstances of the offence under investigation, the personality of the accused , who is suspected of having committed criminal offences one of which is characterised as grave and the other – of medium gravity, the court concludes that [the applicant], if at liberty, after being charged with a grave criminal offence, will prefer, out of fear of sanctions, to abscond the investigation and trial, [or] may act in person or through proxy with the aim of avoiding criminal liability, continue [his] criminal activity, destruct the evidence and otherwise obstruct the investigation. Operational-search activities are now underway, aimed at establishing [the applicant’s] possible connections with other active participants of the mass disorders which took place at Bolotnaya Square in Moscow and the adjacent territory, therefore, if at liberty, [he] may co-ordinate his position with unidentified accomplices whose identities are still being established by the investigation. The aforementioned circumstances are corroborated by the operational-search materials submitted to the investigator and the court under the procedure provided for by law. Taking into account that ... [the applicant] has been [previously] charged with an administrative offence ... and that [he] has a travel passport and thus has no obstacles to travelling abroad ... the house arrest may not be granted.” 49. On 27 February 2013 the Moscow City Court upheld the detention order of 7 February 2013. 50. On 1 April 2013 the Basmannyy District Court extended the applicant’s pre-trial detention until 6 August 2013, on the grounds that the circumstances that had justified the detention – the gravity of charges and the risk of obstructing the course of justice – had not changed. 51. On 24 April 2013 the Moscow City Court upheld the detention order of 1 April 2013. 52. On 1 August 2013 the Basmannyy District Court granted an extension of the applicant’s pre-trial detention on the following grounds: “The investigator’s request indicates that ... during the investigation [the applicant] was making contradictory statements thus obstructing the investigation of the criminal case. Moreover, during the investigation it was found out that [the applicant] has acquaintances outside Moscow and the Moscow Region. Therefore, if [he] is subjected to a preventive measure other than detention in custody he may flee the investigation and trial. ... the victim and eye-witnesses have indicated [the applicant] as the perpetrator ... ... [He] is charged with criminal offences one of which is of medium gravity and another is a grave one, punishable by over three years of deprivation of liberty. ... These circumstances are substantiated, real, corroborated by the information about the defendant’s personality, including [the information] obtained through operational-search activities.” 53. On 28 August 2013 the Moscow City Court upheld the detention order of 1 August 2013. 54. On 1 October 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 6 February 2014. In its reasoning it stressed the complexity of the case, reiterated the grounds given in the previous orders and noted that the circumstances which had justified the detention order had not changed. The Moscow City Court upheld the extension order on 23 October 2013. 55. On 20 November 2013 the indictment was issued to the applicant, with the final charges defined under Articles 212 § 2 and 318 § 1 of the Criminal Code. 56. On 3 February 2014 the Moscow City Court examined a fresh request for the extension of the applicant’s detention and granted it, until 6 June 2014. The court justified this extension as follows: “The extension of the [applicant’s] pre-trial detention is necessary because of the need to allow him and his counsel sufficient time for access to the investigation case file, which has not been finished. ... the [applicant’s] partners in crime have not all been identified and have not been arrested, he knows the personal details of the victims and the witnesses accusing him of being the perpetrator. Taking into account the total of the aforementioned circumstances, the court considers that [the applicant] is likely to flee the investigation and trial, to continue his criminal activity, to put pressure on the victims and witnesses, to induce them to give false evidence, to destruct evidence or to otherwise obstruct the course of justice in the criminal case.” 57. On 27 February 2014 the Moscow City Court acting as appeal instance upheld the same court’s detention order of 3 February 2014. 58. On 14 April 2014 the Zamoskvoretskiy District Court granted another extension of detention in respect of three defendants, including the applicant. It ordered their detention until 30 September 2014 on the following grounds: “The reasons taken into account by the court for selecting the preventive measure... have not changed [and] have not lost their relevance to date. ... The Court takes into account the nature, the gravity and the factual circumstances of the offence imputable to the defendants, the existence of the unidentified perpetrators of the mass disorders, as a real ground for the defendants’ possible unlawful conduct. Considering the foregoing, it is obvious that the defendants [M.,], [the applicant] and [G.], if at liberty, may abscond or otherwise obstruct the course of criminal procedure” 59. On 18 August 2014 the Zamoskvoretskiy District Court found the applicant guilty as charged. He was sentenced to two years and six months of imprisonment. The applicant’s pre-trial detention counted towards the prison sentence. 60. The applicant is currently serving the remainder of the prison term. 61. From 8 September 2012 to 9 June 2013 the first applicant was detained in remand prison IZ-77/4, consecutively in five different cells. In each cell the applicant had at least four square metres of personal space and an individual bed at all times; he had one hour of daily outdoor exercise. 62. According to the Government, the applicant underwent a medical examination on his admission to IZ-77/4; on his request he received medical assistance on 8 November 2012, 9 January 2013 and 20 May 2013 and on 4 December 2012 he had a specialist consultation with an ophthalmologist. 63. On 9 June 2013 the applicant was transferred to IZ-77/2. According to the Government, the cell allowed the applicant at least four square metres of personal space and he had an individual bed at all times; the toilet was separated by a solid partition from the rest of the cell in order to ensure the necessary privacy; the cells were treated for disinfection and pest-control once every three month and whenever necessary; the applicant was entitled to one-hour outdoor exercise per day; the cell was cleaned and the beddings were changed once a week; the cells were equipped with forced ventilation and could be aired through the hinged window pane. The artificial light was provided at 100 watt by day and at 75 watt by night. The glazed windows let in daylight. 64. On 7 October 2013 and 20 October 2013 the public commission for the monitoring of detention facilities visited IZ-77/2. The applicant made no complaints about the conditions of his detention. | 1 |
test | 001-172963 | ENG | BGR | GRANDCHAMBER | 2,017 | CASE OF SIMEONOVI v. BULGARIA | 1 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Procedural aspect);No 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);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;András Sajó;André Potocki;Angelika Nußberger;Dmitry Dedov;George Nicolaou;Georgios A. Serghides;Guido Raimondi;Helena Jäderblom;Jon Fridrik Kjølbro;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Päivi Hirvelä;Paul Lemmens;Paul Mahoney;Robert Spano;Yonko Grozev;Gabriele Kucsko-Stadlmayer;Ksenija Turković;Pere Pastor Vilanova | 10. The applicant was born in 1975 and is detained in Sofia Prison. 11. On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money. On the same day the Burgas investigation department instigated criminal proceedings against a person or persons unknown for armed robbery and homicide. 12. The bodies responsible for the criminal investigation implemented a number of investigative measures: inspection of the premises, autopsies on the victims and questioning of witnesses. The investigators quickly made a connection with the applicant and a certain A.S. 13. By decision of 9 July 1999 a police officer ordered the applicant’s detention for twenty-four hours, in accordance with the relevant provisions of the Ministry of the Interior Act. The order mentioned the detainee’s right to assistance from a lawyer as from the time of his arrest. It also stated that a copy of the order should be presented to the arrestee. The copy of the relevant order in the case file is not signed by the applicant, who was on the run and being sought by the police at that time. 14. On 3 October 1999 the applicant was arrested in Sofia. None of the case papers indicate whether he received a copy of the 9 July 1999 order after his arrest. He remained in detention in Sofia that day and the next. 15. On 4 October 1999 an investigator from Burgas, on the basis of Article 202 of the Code of Criminal Procedure, ordered the applicant’s detention for twenty-four hours from 8 p.m. 16. On 5 October 1999 the applicant was transferred to Burgas. His detention was extended by a prosecutor that same day. 17. The document containing the two decisions of 4 and 5 October 1999 does not mention the applicant’s right to the assistance of a lawyer and does not bear his signature. 18. The applicant affirmed that he had submitted four requests, on 3, 4, 5 and 6 October 1999, for contact with a lawyer, Mr V. Mihailov, and that the authorities had not acceded to those requests. 19. He stated that he had been questioned by the officers in charge of the investigation over the period from 3 to 6 October. While being questioned he had explained that he had taken part in the hold-up at the bureau de change but denied having committed the two murders. 20. The criminal case file contains no written trace of any such questioning. On the other hand, it includes a handwritten statement by A.S., the applicant’s presumed accomplice, dated 3 October 1999, in which A.S. explained that the applicant had instigated the hold-up, that he himself had agreed to cooperate with the applicant and that the latter had used a gun during the incident. 21. On 6 October 1999 the investigator in charge of the investigation appointed an official lawyer for the applicant. At noon, assisted by his officially appointed lawyer, the applicant was formally charged with the double murder and the hold-up in the bureau de change in Burgas. When questioned immediately after being charged, he made the following statements: “I have read the charge sheet in the presence of my officially appointed lawyer, D. Todorov. I have been informed of my rights and obligations as a charged person and of my right to refuse to give evidence. I shall make no submissions concerning the charges until my parents, who have been informed, have had time to engage a lawyer.” 22. On 7 October 1999 A.S. was questioned by the investigator in the presence of a lawyer. A.S. related the circumstances surrounding the preparation, execution and aftermath of the hold-up, and explained how he had helped the applicant at all those stages. He affirmed that it had been the applicant who had killed both victims. 23. On 8 October 1999 the applicant engaged a lawyer practising in Burgas, Mr Kanev. During his questioning in the presence of that lawyer on 12 October 1999 he remained silent and stated that he would give evidence at a later date. 24. On 21 October 1999 the applicant confessed in the presence of his lawyer, Mr Kanev. He admitted that he had prepared and committed the hold-up at the bureau de change and claimed that the two victims had been killed by A.S. 25. On 22 December 1999 the applicant engaged a second lawyer, this time practising in Sofia, Ms Zheleva. 26. Subsequently, the officers responsible for the investigation gathered several different types of evidence, that is to say witness statements and medical, scientific, physical and documentary evidence. 27. On 4 January 2000 the applicant and A.S., assisted by Counsel, took cognisance of the case papers. They retracted their confessions, and their lawyers requested that their clients be questioned once again. 28. On 16 February 2000 the Burgas regional prosecutor returned the file to the investigator for further inquiries. He asked him, in particular, to conduct several investigative measures and to formally charge both suspects afresh. 29. On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his statement the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person. 30. On 17 May 2000 the regional prosecutor’s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas Regional Court. 31. The Regional Court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day. 32. On 14 June 2001 the Burgas Regional Court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, committed jointly with A.S. and resulting in the murder of two persons. He was also found guilty of the unlawful purchase of a pistol and ammunition for it. The Regional Court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b (1) of the Execution of Punishments Act, the Regional Court ordered the applicant’s placement under the “special” prison regime. 33. Drawing on the evidence gathered during the preliminary investigation and at the trial, the Regional Court established the facts as follows: the applicant’s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with him. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had acquired a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by coach. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night there. The next morning, just before 9 a.m., they had gone down to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim’s left temple. The victim had died instantly. The two accomplices had then placed the money found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done. 34. The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of procedural and substantive rules under domestic law and that the Regional Court had shown bias. 35. The applicant’s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the reexamination of one of the witnesses already heard by the trial court, and several additional expert opinions. On 4 December 2001 the reporting judge responsible for the criminal case rejected the requests for further evidencegathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of any evidence of bias. 36. The Court of Appeal considered the criminal case between February and July 2002. It examined a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused. 37. On 6 August 2002 the Court of Appeal upheld the judgment of the first-instance court, giving its full backing to the latter’s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the first-instance court and produced for the first time before the Court of Appeal had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those crimes and had provided the weapon used by his accomplice. The Court of Appeal drew on the statements of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants’ reports and the medical and psychiatric opinions, and also on the physical and documentary evidence gathered. 38. The Court of Appeal observed that the accused’s initial statements during the preliminary investigation had differed considerably from their submissions to the first-instance court. The initial statements had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused’s initial statements, which had been made to an investigator in their lawyers’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer’s allegation that the applicant’s initial confession had been extracted from him. 39. The Court of Appeal turned its attention to the applicant’s version of events to the effect that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Checks carried out in the Ministry of the Interior database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant’s version of events. 40. The Court of Appeal noted that the judgment of the first-instance court displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the Regional Court had not been exclusively based on the accused’s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The Regional Court had responded to all those requests and had provided full reasons for its procedural decisions. There had, moreover, been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties’ interests. 41. The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. It held that even though the Regional Court had been dilatory in issuing the grounds for its judgment, the defence had nonetheless been able to submit additional observations on appeal after having secured a copy of those grounds. 42. The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal. In that appeal, which ran to forty pages, his lawyer raised seventy-four objections concerning the gathering and the interpretation of various pieces of evidence, as well as the factual and legal findings of the lower-level courts. In paragraph 33 of his submissions the lawyer contested the admissibility of a record of a reconstruction of the events of 7 October 1999, arguing that on that day his client had not been assisted by a lawyer of his choosing. At the time his client had been assisted by an officially appointed lawyer who had not been nominated by the local bar association, as required by the applicable legislation. The applicant’s lawyer added that his client had undeniably been deprived of a defence lawyer on 4 October 1999, when he had been taken into custody; he regarded this as an infringement of the provisions of section 70(4) of the Ministry of the Interior Act and of the Constitution. That was the only sentence relating to the circumstances of the applicant’s detention in police custody. 43. By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. It found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other requests by the defence for evidence to be taken. 44. Furthermore, in endorsing the Court of Appeal’s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural rules had been appropriately applied and that the accused’s rights had been fully respected. 45. The applicant was held in Burgas Investigation Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27 January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held. 46. The applicant submitted that he had been held in a cell without windows, a toilet or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitary facilities had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench. 47. According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Investigation Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared washroom and lacked any open-air facilities for detainees. The report also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees’ human dignity. 48. The applicant alleged that his cell in Burgas Prison had had a surface area of 6 sq. m. It had contained a bed and a metal rack. There had been neither running water nor a toilet in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict’s uniform even though he should have been allowed to wear his own clothes, under the prison rules. 49. The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S.’s statement (see paragraph 48 above), prisoners were allowed one-hour’s open-air exercise every other day. The applicant was not involved in any organised activities in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests. 50. According to a report by the governor of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the prison’s activity coordinator. 51. Following his transfer to Sofia Prison the applicant was subject to the “special” prison regime, involving virtually total isolation from the rest of the prison population. 52. The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 m by 2 m, which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 sq. m. There had been no running water in the cell and the prisoners had used a bucket as a toilet. 53. The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners. 54. Up until 2005 the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. The physical conditions had improved somewhat after the renovation work in the high-security wing in 2005 and 2006. In December 2008 the applicant’s prison regime had relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he had been allowed into an activities room, where he could talk to other life prisoners and read books. 55. According to a report by the governor of Sofia Prison dated 11 October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7 sq. m., with a bed, a table, a rack, a shower and a private toilet. His cell had been heated and had running water and proper lighting. 56. Apart from the restrictions imposed by his prison regime, the applicant had access to all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, and write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special panel, and could ultimately be accommodated with the rest of the prison population. 57. Furthermore, in 2010 the applicant applied to have a number of the provisions of the implementing regulations of the Prisons Act declared void as regards the conditions for the execution of his life sentence. His application was dismissed with final effect by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the impugned provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their being declared void. | 1 |
test | 001-166929 | ENG | HUN | COMMITTEE | 2,016 | CASE OF MÁTYUS v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 4. The applicant was born in 1959 and lives in Budapest. 5. On 6 January 2000 the applicant brought an action against his parents before the Siófok District Court for dissolution of joint ownership of a real property. 6. On 21 March 2000 the court suspended the proceedings pending the adjudication of a preliminary question in other proceedings. Upon termination of the other proceedings on 17 November 2005, the Siófok District Court continued hearing the case. 7. On 25 August 2006 the court again suspended the proceedings pending the adjudication of a preliminary question in another related procedure. Upon termination of these proceedings on 30 August 2007, the Siófok District Court ordered continuation of the case on 17 November 2008. 8. An agreement was reached between the parties which was acknowledged and incorporated into a judgment by the Siófok District Court on 5 May 2011. | 1 |
test | 001-161461 | ENG | SRB | ADMISSIBILITY | 2,016 | JAHJAGA v. SERBIA | 4 | Inadmissible | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 1. The applicant, Mr Ibrahim Jahjaga, is a Serbian national who was born in 1946. He is of Albanian ethnic origin and lives in Kosovo. The applicant is represented before the Court by Mr I. Olujić, a lawyer practising in Belgrade. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 1990 A.A., formally registered as resident in Kosovo, had two foreign-currency accounts with the Kosovo branch of Jugobanka AD. 4. Following the financial collapse of numerous banks in Serbia, in 1998 and 2002 the Serbian Parliament enacted specific legislation providing that foreign-currency deposits held in those banks, including the bank at issue, would be added to the public debt. The legislature went on to set the time-frame (2016) and the amounts, including interest, to be paid back to the banks’ former clients. The legislation also explicitly provided that any foreign currency-related judicial proceedings were to be discontinued. 5. As of 2002, A.A. appears to have had 34,067.07 euros (EUR) in one account and EUR 40,857.37 in another. 6. On 2 April 2004 the Serbian Government adopted a decree stating that anyone with foreign-currency savings in the Kosovo branch of Jugobanka AD would have the same rights as other savers, provided that they could prove that they had been resident in Serbia on 4 July 2002 and were Serbian taxpayers. 7. On 26 August 2004, A.A. formally authorised the applicant, by way of a court-certified document, to “take over all the rights concerning the foreign currency savings (withdrawal of money, its transfer and all other rights concerning the savings)”. 8. As a resident of Kosovo, the applicant is currently not a Serbian taxpayer. As of 2004, however, both A.A. and the applicant had Serbian citizenship. They would appear not to have renounced it thereafter. | 0 |
test | 001-169198 | ENG | RUS | CHAMBER | 2,016 | CASE OF TRUTKO v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Non-compliance with court order);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1964 and lives in Dubna, Moscow Region. 6. On 4 February 2003 she was charged with contempt of court and criminally insulting the presiding judge and parties at a hearing on 22 December 2002 in which she had acted as a defendant’s representative. 7. An outpatient forensic psychiatric examination of the applicant was ordered in the course of the pre-trial investigation. On 2 July 2003 she was apprehended and taken to a psychiatric facility for examination. On 3 July 2003 she was examined by a panel of psychiatrists, who concluded that her clinical state was unclear and that no answers could be given concerning her mental health state. She was released, the panel recommending a placement in the State Academic Centre for Social and Forensic Psychiatry in Moscow (Государственный научный центр социальной и судебной психиатрии им. В.П. Сербского) (“the Forensic Psychiatry Centre”) for an inpatient forensic psychiatric examination. 8. On 27 October 2003 the Dmitrov Town Court of the Moscow Region (Димитровский городской суд Московской области) (“the Town Court”), having considered the applicant’s complaint of unlawful apprehension and deprivation of liberty between 2 and 3 July 2003, ruled in her favour. The court reasoned that the detention had been unlawful, since the sanction for the crime she was suspected of did not provide for any form of deprivation of liberty. The applicant did not initiate any further proceedings in this regard. 9. On 4 November 2003 the prosecution made an application for the court to order an involuntary forensic psychiatric examination of the applicant at the Forensic Psychiatry Centre. 10. On the same day the Town Court granted the prosecutor’s application. The relevant part of its order reads: “By virtue of paragraph 1 of Article 203 of the Code of Criminal Procedure, a defendant may be placed in a psychiatric hospital if a forensic psychiatric examination requires his assessment in the hospital. ... the court considers that it should allow the application by the investigator, Ms D., to place [the applicant] in [the Forensic Psychiatry Centre] for a forensic psychiatric evaluation, because [the applicant] is in need of such a hospital examination.” 11. The applicant and her representative did not attend the hearing, because they had not been summoned to it. However, both the prosecutor and the investigator attended and made oral submissions. 12. On an unspecified date the applicant appealed, complaining, inter alia, that she had not been given an opportunity to present her case to the Town Court. 13. Between 25 December 2003 and 5 April 2004 the applicant applied to adjourn her appeal hearing five times. Her application was granted on each occasion. On 29 December 2003 during the appeal hearing in a separate set of proceedings she accused the judges of criminal conspiracy and attempted murder. 14. On 15 January 2004 the applicant was also charged with criminal slander of certain judges during the hearing of 29 December 2003. The proceedings in respect of the two criminal cases were joined. 15. On 9 April 2004 the applicant was apprehended by the authorities and transferred to the Forensic Psychiatry Centre. On 13 April 2004 a panel of psychiatrists issued a report, concluding that the applicant suffered from “paranoid personality development”, and that she had not been able to understand or control her actions during the events of 22 December 2002 (contempt of court) and 29 December 2003 (criminal slander). The report further stated that she presented a danger to others and therefore needed compulsory treatment in a psychiatric facility. On the same day the applicant was released. 16. Two weeks later on 27 April 2004 the Moscow Regional Court (Московский областной суд) (“the Regional Court”) held a hearing on the applicant’s appeal against the the Town Court’s decision of 4 November 2003 authorising psychiatric examination, and rejected it. As regards the applicant’s complaint about the hearing taking place in her absence, the Regional Court noted that Article 165 of the Code of Criminal Procedure provided for ex parte hearings where there was judicial authorisation of investigative actions, including internment in a psychiatric facility for forensic examination (as set out in Article 203 of the Code). 17. On 14 September 2004 the Moscow City Court (Московский городской суд) (“the City Court”) adopted decisions in two sets of criminal proceedings against the applicant. The first decision terminated the criminal proceedings relating to the contempt of court charges in respect of the events of 22 December 2002. The applicant’s statements, while offensive, were found to have been lacking the degree of insult requisite for incurring criminal liability. In the second decision, the City Court established the principal facts of the events of 29 December 2003. Concluding that the applicant had acted in a state of insanity, it terminated the criminal proceedings against her and ordered her to undergo compulsory medical treatment in a psychiatric facility. It relied on the findings and recommendations of the Forensic Psychiatry Centre’s report of 13 April 2004 in its reasoning. 18. On 22 December 2004 the Supreme Court of the Russian Federation upheld the lower court’s decisions. 19. It appears from the parties’ submissions that the applicant was not detained and did not receive any treatment pursuant to the City Court’s order until 2006. 20. On 23 March 2006 the applicant was involuntarily admitted to Moscow Regional Psychiatric Hospital no. 14 (Московская областная психиатрическая больница № 14) for compulsory psychiatric treatment. 21. On 16 May 2006 a panel of hospital psychiatrists concluded that the applicant’s mental health had improved and she no longer posed a danger to society. On the same day an application to discharge the hospital order and discontinue the compulsory treatment was sent to the Town Court. 22. On 22 May 2006 the Town Court scheduled the hearing of the application for the next day. However, it was adjourned until 2 June 2006, because the applicant’s representative failed to appear and additional medical records and statements had to be obtained. Two subsequent hearings were adjourned following applications by the applicant’s representatives. 23. On 10 July 2006 the Town Court ordered the applicant’s compulsory treatment to be discontinued. Her representative lodged an appeal, arguing that the proceedings should have been discontinued from the very beginning, and that the applicant should have been released, since there had been no need for any compulsory treatment. On 31 August 2006 the Regional Court dismissed the appeal and upheld the lower court’s decision. 24. The applicant was released from hospital on 15 August 2006. | 1 |
test | 001-167555 | ENG | ROU | COMMITTEE | 2,016 | CASE OF TEICĂ AND OTHERS v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings. In some of the applications, the applicants also raised complaints under other provisions of the Convention. | 1 |
test | 001-150713 | ENG | RUS | CHAMBER | 2,015 | CASE OF ESHONKULOV 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 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence) | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 6. The applicant was born in 1983 and has lived in Moscow since 15 May 2012. 7. On 27 April 2013 the applicant was arrested in Moscow on the basis of an arrest warrant that had been issued on 15 November 2012 by a criminal court in the Uzbek city of Qarshi. The applicant was charged with participation in banned religious organisations, including the Islamic Movement of Uzbekistan, dissemination of ideas of religious extremism, and organisation of illegal departure of persons to foreign countries, including for training in terrorist camps in Pakistan. 8. On 30 April 2013 the Simonovskiy District Court of Moscow approved the applicant’s detention pending extradition. Following the receipt of extradition request, the applicant’s detention was extended until 27 October 2013. 9. On 22 October 2013 the Russian Prosecutor General granted the request of his Uzbekistani counterpart for the applicant’s extradition. The extradition decision read in particular as follows: “Mr Eshonkulov is accused of ... having committed the following crimes in the period from December 2011 to September 2012 in the territory of the Russian Federation: - undermining the constitutional foundations of the Uzbekistan Republic by means of public calls to extremist activities ... calls for forcible removal of the State leaders of Uzbekistan ... incitement to undergoing training in the special sabotage and terrorism training facilities of the international terrorist organisation ‘Islamic Movement of Uzbekistan’ ... - used the money from his accomplices to purchase videos of the international terrorist organisation ‘Islamic Movement of Uzbekistan’ ... propagating the ideas of religious extremism, separatism and fundamentalism, calls to pogroms and extermination of unfaithful, and distributed those videos among Uzbek nationals ... ... The fact that Mr Eshonkulov committed crimes ... in the territory of the Russian Federation is not an obstacle to his being extradited, since the Russian competent authorities did not institute any criminal proceedings in connection with these crimes ...” 10. On 27 October 2013 the maximum six-month period of the applicant’s detention pending extradition expired. From the remand prison he was taken to the Donskoy district police station where an assistant prosecutor communicated the release order to him. On his way out of the police station, the applicant was arrested for an infringement of migration rules. 11. On 1 November 2013 counsel for the applicant submitted an appeal against the extradition decision to the Moscow City Court, complaining that the Prosecutor General gave no assessment to the risk of torture. 12. By judgment of 28 November 2013, the Moscow City Court rejected their challenge to the extradition decision, finding that there was no evidence that the applicant would be subject to unlawful prosecution or torture in Uzbekistan, and noting the assurances provided by the Uzbekistani Government to the Russian Prosecutor General. It refused to examine the reports by international human rights NGOs and UN bodies about the situation in Uzbekistan which the defence prayed in aid, finding that those documents had no direct bearing on the issues considered. 13. On 19 February 2014 the Supreme Court of the Russian Federation examined and rejected the final appeal against the extradition order. It refused likewise to take into consideration translations of the Court’s judgments in similar cases or the documents from NGOs and UN bodies. 14. Following the applicant’s release from custody, by judgment of 28 October 2013, the Simonovskiy District Court of Moscow found him guilty of having been unlawfully resident in Russia from February 2013 and until his arrest on 27 April 2013. The District Court sentenced the applicant to a fine and administrative expulsion from Russia. Pending expulsion, he was to be detained in Moscow Centre for Detention of Foreign Nationals no. 1. 15. On 27 February 2014 the Moscow City Court upheld the District Court’s judgment. It refused to take into account the arguments by the defence about the risk of ill-treatment that the applicant would face in Uzbekistan, stating that such arguments were “based on conjectures” and were not supported with the materials in the case file. In the City Court’s view, the information on Uzbekistan concerned the general situation in the country and was not indicative of a violation of the rights of the specific individuals. As regards the alleged violation of Article 5 of the Convention, the City Court simply stated that there was no violation and that the Court’s findings in the Azimov v. Russia case were irrelevant. 16. On 20 May 2013 the applicant applied for asylum; the Russian Federal Migration Service rejected his application on 24 September 2013. On 24 October 2013 he asked for a judicial review of the refusal. 17. On 16 December 2013 the Basmannyi District Court of Moscow dismissed the applicant’s appeal, finding that the applicant had not produced sufficient evidence of the risk of persecution. It held that the “reason why [the applicant] does not wish to return to Uzbekistan is his fear of the real danger of criminal prosecution”. The court found no political motives in the charges levelled against the applicant and observed that the acts he was charged with were also criminal under Russian criminal law. The District Court observed that the applicant had applied for asylum only after his arrest in Russia rather than immediately after he had arrived to Russia. 18. The applicant appealed to the Moscow City Court. The City Court considered and rejected his appeal on 20 June 2014. On the alleged risk of ill-treatment, it held as follows: “...The claimant’s assertion that ‘his cousins are serving sentences in Uzbekistan for their religion’ ... cannot be taken into consideration because he has not produced any evidence to substantiate his claim. Making a global assessment of the submissions, the first-instance court correctly considered that there were no grounds to assume that the claimant would face a real risk of inhuman treatment. Applying the standards for the assessment of the allegation of ill-treatment in case of his return to Uzbekistan (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 65, ECHR 2005I), the court considers that the ill-treatment which the claimant may allegedly face in Uzbekistan would not reach the minimum threshold of severity attracting the protection of Article 3 of the Convention.” | 1 |
test | 001-166774 | ENG | RUS | COMMITTEE | 2,016 | CASE OF GONTMAKHER v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);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 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 5. The applicant was born in 1952 and lives in Bellevue, Washington, USA. He is a president of Global Fishing Inc., a corporation which was the largest importer of crab to the United States of America. 6. On 29 June 2007 the Investigating Committee of the Ministry of the Interior of the Russian Federation opened a criminal investigation into crab poaching in Russia’s exclusive economic zone in the Bering Sea and the Sea of Okhotsk. The investigation concerned the charges of engagement in organised criminal activities, unlicensed fishing activities in Russia’s exclusive economic zone and money laundering. The decision to open the investigation identified Global Fishing Inc. as a major purchaser of the crab illegally harvested in the said region. 7. On 20 September 2007 the applicant was arrested in a hotel in Moscow. His passport was confiscated. 8. On 21 September 2007 the Tverskoy District Court of Moscow authorised the applicant’s detention pending investigation. In particular, the court noted: “When deciding that [the applicant] should be detained [pending investigation], the court notes that he is suspected of having committed a grave and serious offence, that he does not have a permanent residence in Russia, that there are reasons to believe that, if released, the applicant might abscond or continue his criminal activity, destroy the evidence or in any other way interfere with the criminal proceedings against him. Under such circumstances, application of any restrictive measure other than deprivation of liberty would not be feasible”. 9. On 27 September 2007 the Investigating Committee formally charged the applicant with engagement in organised criminal activities, money laundering and unlicensed fishing activities in Russia’s exclusive economic zone. 10. On 10 October 2007 the Moscow City Court upheld the decision of 21 September 2007 on appeal. 11. On 16 November 2007 the District Court extended the applicant’s detention until 29 February 2008. The applicant’s lawyers attended the hearing. The applicant was unable to attend for health reasons. He asked to be released on bail or alternatively on personal surety given by the chief rabbi of Russia. He presented to the court positive character references from two U.S. senators. He further argued that he was not fit for detention for illhealth. In this respect he relied on the opinion prepared by his family doctor, which indicated that the applicant suffered from arthritis, high cholesterol, kidney stones, chronic pyelonephritis, gastritis, loss of hearing in the right ear, nasal allergies, frequent headaches and dizziness. He also submitted a guarantee signed by Mr Sh. who undertook to accommodate the applicant at his place of residence in Moscow pending investigation. The court dismissed the applicant’s arguments noting as follows: “The court takes into account the arguments presented by the defence, including the references concerning his character. It discerns no new material facts or circumstances justifying [the applicant’s] release or application of another restrictive measure. It follows from the materials submitted that [the applicant] is charged with a very serious offence, he is a national of another state. The medical documents presented do not demonstrate that [the applicant] is unfit for detention. The court concludes that the grounds for the [applicant’s] detention have not ceased to exist. Accordingly the restrictive measure applied cannot be lifted or replaced with a less strict one, including the bail.” 12. On 26 December 2007 the City Court upheld the decision of 16 November 2007 on appeal. 13. On 21 February 2008 the District Court extended the applicant’s detention pending investigation until 29 May 2008. The court reiterated that the applicant’s detention was justified due to the gravity of the charges and lack of a place of permanent residence in Russia. The application for release on bail or personal surety was dismissed. On 26 March 2008 the City Court upheld the decision of 21 February 2008 on appeal. 14. On 28 May 2008 the District Court extended the applicant’s detention until 29 August 2008. The court reiterated practically verbatim the reasoning used in the previous court order. On 23 June 2008 the Moscow City Court upheld the court order of 28 March 2008 on appeal. 15. On 19 August 2008 the City Court extended the applicant’s detention until 29 November 2008. According to the applicant, the court referred to the gravity of the charges and his “significant financial possibilities”. On 2 October 2008 the Supreme Court of the Russian Federation upheld the court order of 19 August 2008 on appeal. In particular, the Supreme Court noted: “It follows from the materials in the case-file that [the court] took into account the gravity of the charges against [the applicant]..., and it is reasonable to assume that, if at large, he may abscond..., or continue his criminal activities, or threaten the witnesses, the victims and other parties to the proceedings, or destroy the evidence... that may be found in foreign companies or interfere with investigation in any other way. ... [I]n view of the extreme complexity and scope of the case, there are no grounds for [the applicant’s] release. Furthermore, the grounds for the applicant’s detention have not ceased to exist and there are no exclusive circumstances rendering the lifting or replacement of the restrictive measure... possible.” 16. On 20 November 2008 the City Court extended the pre-trial detention in respect of the applicant, E. and S., his co-defendants, noting as follows: “According to the materials submitted, E., S. and [the applicant] are charged with a number of offences, including especially serious ones for which a custodial sentence exceeding two years can be applied in the event of conviction. It follows from the investigator’s motion, submitted materials and his explanation given in court, that the criminal case is very complex, fourteen people were indicted, a big volume of investigative activities have been carried out, including those under way in different regions in the Russian Federation; there are complex forensic expert examinations ongoing, the responses to the inquiries sent are still pending, including the ones concerning international criminal assistance, the investigators have planned numerous activities aimed at establishment of facts to be proved and completion of the investigation. ’s arguments that the defendants’ detention should be extended are convincing and justified and that the grounds for extension of their detention are exceptional regard being had to the nature of the charges and pending investigative activities aimed at the completion of the investigation. In the course of investigation the information was obtained that, should they be released, the defendants might abscond or interfere with the proceedings. ’ character, the court concludes that there are sufficient grounds to believe that, should they be released, the defendants might abscond, put pressure on witnesses and other parties to the proceedings, try to conceal or destroy evidence in order to obstruct justice. Under such circumstances... E., S., and [the applicant] should be detained pending investigation which means that the grounds and the circumstances ... taken into consideration by the court when deciding on their detention have not changed and it is still necessary to detain them. In view of the above, it is not possible to use a less strict restrictive measure in respect of E., S., and [the applicant], including release on bail. When deciding on the extension of the defendants’ detention, the court takes into account the circumstances as required by [law], notably their family status, age, health condition, and character information submitted by the defence.” 17. On 14 January 2009 the Supreme Court upheld the decision of 20 November 2008 on appeal. The court dismissed the applicant’s argument that the City Court’s findings that he might abscond, continue criminal activities, obstruct justice, destroy evidence had been erroneous and unsubstantiated. 18. On 17 February 2009 the applicant received an amended and finalised bill of indictment. 19. On 19 February 2009 the City Court extended the detention of the three defendants, including the applicant, until 20 March 2009 in view of pending investigation. It noted in respect of the applicant as follows: “Even though... [the applicant] does not have a criminal record, is married and have a child, prior to his arrest was employed and had a permanent source of income, he is charged with a number of very serious offences which entail, in case of conviction, a custodial sentence exceeding two years and which, according to the investigators’ version, have been committed by an organised criminal group managed by E. and [the applicant]... The applicant is a national of another state, he does not have a permanent place of residence in the Russian Federation... The above information about the applicant’s character and the gravity of the charges are, in the court’s opinion, sufficient to assume that he may abscond, despite his and his defence’s declarations and assurances. Furthermore, according to the report of policemen Z. and V., the applicant..., if released, is planning to flee abroad and continue criminal activities connected to illegal fishing in the exclusive economic zone of the Russian Federation, put pressure on witnesses, try to destroy physical evidence. In addition, [the applicant] repeatedly tried to bribe the officials in order to influence the investigation. Besides, E., S. and [the applicant] have been trying to get in touch with other members of the organised criminal group who are still at large. It follows from the testimony of witness P., that American companies are taking steps to secure [the applicant’s] release.” 20. On 23 March 2009 the Supreme Court upheld the decision of 19 February 2009 on appeal. 21. On 11 March 2009 the City Court extended the applicant’s detention pending the defendants’ study of the case file, which comprised 160 volumes, until 20 June 2009. The court referred to the gravity of the charges against the applicant and the lack of permanent residence in Russia. It further reiterated that the applicant might put pressure on witnesses, obstruct justice or abscond. On 21 April 2009 the Supreme Court upheld the decision of 11 March 2009 on appeal. 22. On 28 May 2009 the City Court extended the applicant’s detention until 20 September 2009. The court noted that the defendants, including the applicant, and eighteen lawyers that represented them had not completed the study of the case file. As to need for detention pending investigation, the court reiterated the formula which it used for prior extensions. On 16 July 2009 the Supreme Court upheld the decision of 28 May 2009 on appeal. 23. On 26 August 2009 the applicant completed the study of the case file. 24. On 15 September 2009 the City Court extended the applicant’s detention until 20 December 2009 noting that the applicant’s co-defendants and their lawyers needed further time to complete the study of the case-file. Referring to the gravity of the charges against the applicant and the lack of a permanent residence and of “established social links” in Russia, the court noted that the applicant might abscond, put pressure on witnesses and other parties to the proceedings in order to obstruct justice. On 29 October 2009 the Supreme Court upheld the decision of 15 September 2009 on appeal. 25. On 4 December 2009 the City Court received the applicant’s casefile and on 17 December 2009 it extended the defendants’ pre-trial detention until 4 June 2010 noting as follows: “[The defendants] have been remanded in custody. This restrictive measure corresponds to the nature and seriousness of the charges against them. The circumstances underlying the [defendants’] remand in custody have not ceased to exist. Notwithstanding personal surety and a possibility of bail proposed by [the applicant], the fact that [the applicant] and S. have minor children, the length of their pre-trial detention, the measure of restraint earlier imposed on [the defendants] should remain unchanged.” 26. On 25 February 2010 the Supreme Court upheld the decision of 17 September 2009 on appeal. 27. It appears that on an unspecified date the applicant’s case was transferred for trial to the Kamchatka Regional Court. 28. On 27 May 2010 the Regional Court extended the defendants’ pretrial detention until 4 September 2010 noting that the circumstances underlying their remand in custody had not ceased to exist. 29. On 2 September 2010 the Regional Court extended the defendants’ detention until 4 December 2010 reiterating verbatim its reasoning of 27 May 2010. 30. On 29 November 2010 the Regional Court considered it possible to release the defendants on bail in the amount of 5,000,000,000 Russian roubles (RUB). The applicants submitted that they were unable to pay such bail. The court reasoned that the bail in a lesser amount would not ensure the defendants’ appearance before it and extended their detention until 4 March 2011 reiterating its earlier reasoning. 31. On 16 December 2010 the jury delivered a not-guilty verdict in the applicant’s case. The applicant was released on the same date. On 17 January 2011 the Regional Court issued the relevant judgment advising the applicant of his right to rehabilitation. 32. On 27 April 2011 the Supreme Court upheld the judgment of 17 January 2011 on appeal. 33. On 21 May 2008 in an article entitled Special Protection for the Mafia («Спецприкрытие для мафии») Rossiyskaya Gazeta, an official national newspaper, published an interview about the criminal investigation with General Ts., the head of the department of the Investigating Committee of the Ministry of the Interior of the Russian Federation. In the interview Ts. referred to the applicant as the head of an international criminal organisation which had been engaged in illegal fishing activities conducted in Russia’s territorial waters. 34. On 28 and 29 May 2008 General Ts. gave two interviews about the criminal investigation which were broadcast by Channel One, the national TV channel. Ts. reiterated his previous statements alleging that the applicant had been the head of the illegal fishing business and referred to him as “the don of the crab mafia”. 35. On 28 February 2013 the Regional Court granted the applicant’s claims for damages against the Ministry of Finance of the Russian Federation in part. The court awarded the applicant RUB 83,208,240 in respect of lost earnings and RUB 603,000 as reimbursement of legal costs and expenses. 36. On 21 May 2013 the Regional Court upheld the judgment of 28 February 2013 on appeal. 37. On 24 October 2014 the District Court dismissed the applicant’s claims for pecuniary damages resulting from criminal prosecution against the Ministry of Finance of the Russian Federation. 38. On 20 March 2015 the City Court upheld the judgment of 24 October 2014 on appeal. | 1 |
test | 001-152783 | ENG | POL | COMMITTEE | 2,015 | CASE OF RAMBIERT v. POLAND | 4 | No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku | 5. The applicant was born in 1980 and lives in Puck. 6. On 19 September 2007 the applicant was arrested on suspicion of drug trafficking and of membership in an organised criminal group. The investigation against him and several other persons was conducted by the Puck District Prosecutor (Prokurator Rejonowy). 7. On 21 September 2007 the Wejherowo District Court (Sąd Rejonowy) remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question. It considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might induce witnesses to give false testimony. It also stressed the severity of the anticipated sentence and the complex nature of the case. 8. The applicant’s pretrial detention was later extended by the Gdańsk Regional Court (Sąd Okręgowy) on 6 December 2007 and on 11 March and 10 June 2008. On 10 September 2008 the Gdańsk Court of Appeal (Sąd Apelacyjny) further extended the applicant’s detention. The courts repeatedly relied on the original grounds given for the applicant’s detention. They also emphasised the need to secure the process of obtaining evidence as the case concerned activities of an organised criminal group. 9. On an unspecified date in 2008 the investigation was taken over by the State Prosecutor (Prokurator Krajowy). 10. On 5 December 2008 a bill of indictment against the applicant and seventeen other persons was lodged with the Gdańsk Regional Court. The applicant was charged with numerous counts of drug trafficking and with membership in an organised criminal group. The bill of indictment stated that six accused had pleaded guilty and they agreed to the sentences indicated by the prosecution authorities under Article 335 of the Code of Criminal Procedure (wniosek o skazanie). It was accompanied by 20 volumes of the case file. The prosecutor requested the court to hear 48 witnesses. 11. During the court proceedings the applicant’s detention pending trial was further extended by decisions of the Gdańsk Regional Court delivered on 11 December 2008 and 12 March and 9 June 2009; and by the Gdańsk Court of Appeal’s decisions of 26 August and 25 November 2009, 23 February, 19 May, 25 August and 19 October 2010, 12 January and 23 March 2011. The applicant’s appeals against decisions prolonging his detention and all his subsequent applications for release were unsuccessful. The courts continually justified their decisions by the existence of a reasonable suspicion that the applicant had committed the offences. They also referred to the likelihood of a heavy prison sentence being imposed on the applicant after conviction. They further relied on the need to secure the proper conduct of the proceedings, emphasising that the accused and subsequently the key witnesses in the case had to testify before the trial court. They considered that the risk that the applicant might tamper with evidence or otherwise obstruct the proceedings resulted, in particular, from the fact that he had been charged with membership in an organised criminal group. Finally, they found that the trial court conducted the proceedings in a correct and timely manner. They noted in this regard the complex character of the case and the voluminous documentation gathered (on 23 March 2011 the case file comprised 36 volumes). They also referred to multiple procedural motions of the accused and their lawyers. 12. Between 17 March 2010 and 17 March 2011 the applicant served a prison sentence imposed in another set of criminal proceedings against him. On 17 March 2011 he started serving another prison sentence. 13. Meanwhile, on 19 February 2009 the trial court decided to examine the charges against six coaccused in separate proceedings. 14. On 15 April 2009 the court scheduled the first hearing for 13 May 2009. It also scheduled five further hearings. 15. The hearings scheduled for 13 and 28 May 2009 were adjourned due to the absence of one of the accused. 16. The trial was eventually started on 9 July 2009. Subsequently, the trial court held ten further hearings by the end of 2009. 17. In 2010 the court held sixteen hearings altogether. Four of the scheduled hearings were adjourned due to absences or sickleaves of the accused or their lawyers. 18. In 2011 eight hearings were held by 20 May 2011. On that date the Gdańsk Regional Court lifted the applicant’s detention on remand. 19. The proceedings are still pending before the firstinstance court. | 0 |
test | 001-167099 | ENG | LTU | CHAMBER | 2,016 | CASE OF GAINA v. LITHUANIA | 4 | No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1961 and lives in Kaunas. 6. In 1994 the applicant obtained a loan of 30,100 Lithuanian litai (LTL – approximately 8,718 euros (EUR)) from the State. The purpose of the loan was to build or buy an apartment. In 2000 the applicant became the owner of an apartment built by a public association, and in exchange she took over the association’s loan of LTL 90,036 (EUR 26,076) from the State. The apartment was pledged to the bank as collateral. Both loans were given under preferential conditions – the annual interest rate was lower than the average annual interest rate for loans given by private banks at that time. Both loans were administered by a State bank, the State Commercial Bank of Lithuania (hereinafter “the bank”). In 1998 that bank transferred the claims to some of its loans, including both of the applicant’s loans, to another State bank, the Savings Bank of Lithuania. In 2001 the latter bank was privatised and became the private bank AB Hansabankas. 7. On 13 August 2001 the applicant concluded an agreement with a third party, A.E., under which the applicant paid LTL 30,870 (EUR 8,940) and bought from A.E. the right to restoration of title in respect of 1.47 hectares of land in Kaunas. That land had belonged to A.E.’s grandfather, S.F., who had died in 1949. It had been determined by a ruling of the Kaunas District Court of 23 May 2001 that S.F. had owned a total of 68.26 hectares of land in Kaunas. Following that ruling, A.E. sold the right to restoration of title in respect of different parts of that land to over a hundred individuals, including the applicant. 8. On 23 October 2001 the Kaunas County Administration (hereinafter “the KCA”) restored the applicant’s title in respect of 1.47 hectares of land. At the applicant’s request, her property rights were restored by cancelling her outstanding debt to the State (see paragraphs 31-33 below). The KCA estimated that the value of that plot of land was LTL 70,560 (EUR 20,435.60), and its indexed value was LTL 112,896 (EUR 32,697), an amount equal to the applicant’s outstanding debt under the two loan agreements of 1994 and 2000 (see paragraph 6 above). 9. On 10 November 2001 the KCA forwarded to the Ministry of Finance a list of individuals, including the applicant, whose property rights it had decided to restore by cancelling their debts to the State. 10. On 16 November 2001 the KCA ordered an internal audit into the restoration of property rights in respect of the land which had belonged to S.F. (see paragraph 7 above). The audit report, delivered on 7 December 2001, found that the documents in the possession of the KCA showed that from 1927 to 1940 S.F. had sold parts of his land to numerous individuals, and that, as a result, at the time of his death he had owned no more than 15.58 hectares. Accordingly, the audit report considered that the size of S.F.’s land, as established by the Kaunas District Court (see paragraph 7 above), had been incorrect, and recommended that the KCA suspend the restoration of property rights in respect of any land which had previously been considered as belonging to S.F. 11. Following the internal audit, on 14 December 2001 the KCA suspended the restoration of property rights in respect of S.F.’s land. It informed the Ministry of Finance about the suspension, and asked it to suspend the cancellation of debt for all the individuals on the previously submitted list, including the applicant (see paragraph 9 above). 12. Subsequently the Kaunas Regional Prosecutor (hereinafter “the prosecutor”), at the request of the KCA and relying on the findings of the audit report, asked the domestic courts to reopen the civil proceedings concerning the size of S.F.’s land, and to suspend the enforcement of all the KCA’s decisions concerning the restoration of property rights in respect of that land. On 21 March 2002 the Kaunas Regional Administrative Court suspended the enforcement of the KCA’s decisions. The applicant participated in the court proceedings as a third party and appealed against the suspension, but on 25 April 2002 the Supreme Administrative Court dismissed her appeal. On 23 October 2002 the Supreme Court reopened the civil proceedings concerning the size of S.F.’s land, on the grounds that the audit report had revealed relevant information which had not been known at the time of the adoption of the Kaunas District Court’s ruling of 23 May 2001. 13. In the reopened proceedings, on 30 April 2003 the Kaunas District Court determined that S.F. had owned 48.40 hectares of land. On 30 June 2004 the Kaunas Regional Court partly amended that judgment and determined that S.F. had owned 47.91 hectares of land. The latter judgment became final. The KCA and the applicant participated in the reopened proceedings as third parties. 14. On 25 October 2004 the prosecutor asked the Kaunas Regional Administrative Court to revoke the order suspending the enforcement of the KCA’s decisions concerning the restoration of property rights in respect of S.F.’s land. The prosecutor submitted that the total amount of land affected by those decisions was less than 47.91 hectares, so there was no risk of restoring property rights in respect of land which had not belonged to S.F. On 26 October 2004 the Kaunas Regional Administrative Court granted the prosecutor’s application. 15. On 9 November 2004 the KCA asked the Ministry of Finance to resume the cancellation of debt with regard to the applicant and other individuals (see paragraph 9 above). 16. On 6 December 2004 the Ministry of Finance issued a certificate confirming the cancellation of the applicant’s outstanding debt to the State, amounting to LTL 112,896 (EUR 32,697). On that same day the bank received the certificate from the Ministry and cancelled the applicant’s debt. 17. It appears that from 23 October 2001 to 6 December 2004 the applicant did not make any loan repayments to the bank and the bank did not request any such payments. However, until September 2002 she was paying interest and late payment fines under the two loan agreements, and paid a total of LTL 5,222.26 (EUR 1,512.47). 18. On 26 January 2005 the bank informed the applicant that she owed it LTL 13,140.56 (EUR 3,805.77) in interest and late payment fines under the two loan agreements. 19. On 3 February 2005 the bank lodged a civil claim against the applicant concerning the unpaid interest and late payment fines under the loan agreement of 1994, amounting to LTL 2,909.33 (EUR 842.60). It asked the Kaunas District Court to order interim measures – seizing the applicant’s apartment. On the same day the bank unilaterally terminated the loan agreement of 2000 and asked the court to begin the forced recovery of the debt under that agreement, amounting to LTL 10,231.23 (EUR 2,963.17), by seizing the applicant’s apartment, which had been pledged to the bank as collateral. 20. On 7 February 2005 the Kaunas District Court seized the applicant’s apartment and informed her that, following her failure to repay the debt under the loan agreement of 2000 within one month, the apartment would be sold at auction. The following day the court also granted the bank’s application for interim measures concerning the loan agreement of 1994, but having found that the applicant’s apartment had already been seized, the court ordered the seizure of the applicant’s movable property, financial assets and property rights, amounting to the sum of LTL 2,909.33. 21. On 24 February 2005 the applicant submitted a counterclaim against the bank. She stated that on 23 October 2001 the KCA had restored her property rights by cancelling her debt to the State, but due to circumstances beyond the applicant’s control the Ministry of Finance had only informed the bank about the cancellation on 6 December 2004. The applicant submitted that from 23 October 2001 until 6 December 2004 she had repeatedly contacted the bank and asked it to not count the interest and late payment fines. Thus, she considered that the bank had known about the cancellation of her debt, and it was therefore unjust and unfair for it to ask her for any payments for that period, or to unilaterally terminate the loan agreement of 2000. The applicant further asserted that in the period of 20012002 she had paid the bank a total of LTL 5,222.26 (EUR 1,512.47) in interest and late payment fines under the two loan agreements; she claimed that there had been no grounds for the bank to accept those payments, and asked the court to order the bank to return them to her. 22. On 22 March 2005, at the applicant’s request, the Kaunas District Court suspended the forced recovery of the debt by means of seizing the applicant’s apartment, pending the examination of the claim and counterclaim in the civil case. On 18 October 2005 the court lifted the order for seizure of the applicant’s apartment because the bank had not requested its sale at auction within the time-limit prescribed by law. 23. On 22 February 2006 the Kaunas District Court granted the bank’s civil claim in part. The court found that the applicant’s debt had only been cancelled on 6 December 2004, so there were no grounds to find that her obligation to honour the loan agreement with the bank had ended before that date. The court held that the applicant had been using the loan during the period of 2001-2004, and thus she was obliged to pay interest to the bank. Accordingly, it ordered the applicant to pay the bank LTL 2,705.52 (EUR 783.57). However, the Kaunas District Court also noted that the loan had been given to the applicant by the State and not by the bank, so the latter could not claim to have suffered any losses due to late payments. The court found no bad faith on the part of the applicant – it considered that she had had legitimate grounds to expect that the cancellation of her debt, ordered on 23 October 2001, would be implemented promptly. Accordingly, the court decided that the bank had no grounds to claim late payment fines, and ordered it to return to the applicant LTL 72.25 (EUR 20.93) which she had already paid. The applicant’s counterclaim was dismissed. 24. The applicant appealed against that judgment, but on 1 June 2006 the Kaunas Regional Court dismissed her appeal and upheld the first-instance judgment in its entirety. The court considered that the applicant had to assume the risks resulting from her agreement with A.E., which had enabled her to seek the cancellation of her outstanding debt after paying a sum that was several times lower than that debt (see paragraphs 7-8 above), especially as the bank had not been a party to that agreement. The court also noted that the delay in the cancellation of the applicant’s debt had been caused not by the actions of the bank but by those of the KCA and the prosecutor, so the bank had had the right to receive interest payments during the period in question. 25. In those proceedings, the courts did not examine whether the applicant had been under an obligation to pay interest and late payment fines under the loan agreement of 2000, because she had not made such a claim. As submitted by the applicant and not disputed by the Government, on an unspecified date in 2006 the applicant paid LTL 10,231.23 (EUR 2,963.17) in interest and late payment fines requested by the bank under that agreement. 26. On 3 July 2006 the applicant submitted to the Kaunas Regional Administrative Court a civil claim for damages against the KCA, the Prosecutor General’s Office and the Ministry of Finance. She claimed that because of the unnecessary and unjustified delay in the cancellation of her debt from 23 October 2001 until 6 December 2004, caused jointly by those three institutions, she had suffered financial losses of LTL 20,926.73 (EUR 6,060.80), consisting of interest and late payment fines paid under the two loan agreements, as well as legal expenses incurred in the civil proceedings instituted by the bank. She also claimed non-pecuniary damages of LTL 15,000 (EUR 4,344.30) for the stress and frustration caused during that delay. 27. On 13 July 2006 the Kaunas Regional Administrative Court refused to accept the applicant’s claim, on the grounds that complaints against the Prosecutor General’s Office and the Ministry of Finance – and, as a result, the entire claim – had to be examined by the Vilnius Regional Administrative Court (see paragraph 38 below). 28. On 26 April 2007 the applicant submitted to the Kaunas Regional Administrative Court a civil claim for damages against the KCA only. She again claimed pecuniary damages of LTL 20,926.73 and non-pecuniary damages of LTL 15,000 in respect of damage allegedly caused by the unjustified delay in the cancellation of her debt. The applicant argued that the KCA had acted unlawfully by suspending the restoration of her property rights and asking the prosecutor to apply for the reopening of the civil proceedings concerning the size of S.F.’s land. The Prosecutor General’s Office and the Ministry of Finance participated in the proceedings as third parties. 29. On 11 June 2007 the Kaunas Regional Administrative Court dismissed the applicant’s claim. It held that the principle of the rule of law obliged the KCA to ensure that the restoration of property rights was conducted in accordance with the applicable laws. The court considered that, in the presence of well-founded doubts about the actual size of the land owned by S.F., the KCA had acted lawfully and diligently by suspending the restoration of the property rights and initiating the reopening of the proceedings. The fact that the courts dealing with the reopened proceedings had found that S.F. had owned less land than initially determined (48.40 hectares and 47.91 hectares, as opposed to the initial estimate of 68.26 hectares) showed that the suspension had had a proper basis. Accordingly, the court concluded that the KCA had acted lawfully and there were no grounds to award damages to the applicant. 30. The applicant appealed against that judgment, but on 12 March 2008 the Supreme Administrative Court dismissed her appeal and concluded that the KCA’s actions in initiating the suspension of its decisions concerning the restoration of property rights had been in accordance with domestic law. In addition, the Supreme Administrative Court distinguished between the KCA’s competence and that of the Ministry of Finance: while the KCA was responsible for the restoration of property rights, it was the Ministry of Finance which had the authority to cancel the applicant’s debt and issue the bank with a certificate confirming such cancellation. The KCA’s request of the Ministry of Finance to suspend the cancellation of the applicant’s debt (see paragraph 11 above) had not been legally binding on the Ministry, and had had no legal effect on the cancellation of the debt. The court further held that the suspension of restoration of the applicant’s property rights had been ordered not by the KCA but by the ruling of the Kaunas Regional Administrative Court of 21 March 2002, and the ruling had been revoked by that same court only on 26 October 2004 (see paragraphs 12 and 14 above). Accordingly, the Supreme Administrative Court concluded that the KCA could not be held responsible for the suspension of the restoration of the applicant’s property rights and the cancellation of her debt, and thus there were no grounds to award her damages. | 0 |
test | 001-175663 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KOROBEYNIKOV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) | Dmitry Dedov;Luis López Guerra | 5. The applicant was born in 1963 and lives in Pyatigorsk. 6. The applicant took part in the cleaning-up operation at the Chernobyl nuclear disaster site. He was subsequently registered disabled by Ukrainian authorities, becoming entitled to various social benefits. 7. In September 1999 the applicant settled in Russia. The welfare authorities rejected re-establishing the applicant’s disability status. The applicant challenged the rejection before the courts. 8. On 30 August 2005 the Pyatigorsk Town Court granted the applicant’s claim and ordered the Administration of Labour and Social Security of the Population of Pyatigorsk to issue a certificate of benefits. 9. On 20 September 2009 the judgment became final. 10. On 18 October 2005 the applicant was issued with the certificate of benefits. 11. On 1 November 2006 the Presidium of Stavropol Regional Court allowed the defendant authority’s application for supervisory review and quashed the judgment of 30 August 2005, considering that the lower courts misapplied the material law. The case was remitted for fresh consideration. 12. On 13 December 2006 the the Pyatigorsk Town Court discontinued the proceedings since the parties failed to appear. | 1 |
test | 001-153922 | ENG | GBR | CHAMBER | 2,015 | CASE OF PIPER v. THE UNITED KINGDOM | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 4. The applicant was born in 1948 and lives in Essex. The facts of the case, as submitted by the parties, can be summarised as follows. 5. The applicant was arrested in the Netherlands on 31 January 1999. On 3 February 1999, following transfer to the United Kingdom, he was charged with the attempted importation of 163 kilograms (compressed weight) of cocaine with a potential street value of GBP 11 million. 6. Prior to trial, in order to seize and preserve the applicant’s assets for future confiscation in the event of a conviction, the prosecution applied for and obtained a restraint order and the appointment of a receiver under section 26 of the Drug Trafficking Act 1994 (“the 1994 Act”). The receiver sought to sell the applicant’s horses immediately and this was successfully challenged by the applicant. In its judgment dated 23 July 1999 the Court of Appeal confirmed that the purpose of the 1994 Act was to preserve the value of assets for the purpose of future confiscation proceedings. 7. Also prior to trial, the applicant sought to challenge the admissibility of telephone interception evidence obtained in the Netherlands. He ultimately pursued an appeal to the House of Lords, which delivered its judgment against the applicant on 24 March 2000. 8. The trial subsequently commenced in the Crown Court in June 2000. However, after the jury had already retired to consider their verdict a prejudicial document was discovered within the jury bundle. The fault for this lay with the prosecution, a matter admitted at the time. Consequently, on 31 August 2000 the jury were discharged. 9. A retrial commenced on 6 April 2001. At the start of the retrial the applicant’s counsel pursued an unsuccessful application to stay the proceedings on grounds of hardship suffered as a result of the prosecution’s negligence in causing the first trial to be abandoned. 10. On 5 June 2001 the applicant was found guilty of the offences charged. On 6 June 2001 he was sentenced to fourteen years’ imprisonment. He lodged an appeal against sentence, which was unsuccessful. In 2004 he lodged an out-of-time appeal against conviction. He was released from prison in February 2006 and, on 17 November 2006, he abandoned his appeal (see further paragraph 29 below). 11. The 1994 Act provides for the making of a confiscation order in the event of a conviction for drug trafficking offences. Accordingly, prior to the sentencing hearing, the prosecution served notice under section 2 of the Act of its intention to seek a confiscation order and a statement under section 11 of the Act containing the prosecution’s assessment of whether the applicant had benefited from drug trafficking and the value of his proceeds of drug trafficking. 12. At the sentencing hearing on 6 June 2001, the judge ordered the defence to serve a written response to the prosecution’s statement within six weeks. The defence failed to serve its response within the six-week period. At the prosecution’s request, a further procedural hearing took place on 9 October 2001. At this hearing, the judge was informed that the delay in serving the defence response had been caused by the applicant moving prisons and wishing to instruct new solicitors. The prosecution drew the judge’s attention to section 3 of the 1994 Act, which provided a six-month deadline in respect of the confiscation proceedings. Prosecution counsel indicated that an extension of the deadline might be required. Defence counsel confirmed that the applicant wished to apply for a transfer to new solicitors and agreed that an extension would probably be required as it was unlikely that a fresh legal team would be ready by 6 December 2001 when the current deadline was due to expire. The judge granted a short adjournment of 28 days to resolve the matter of transferring representation. 13. On 6 November 2001 the court granted a defence application for the transfer of legal aid. The new defence representative sought an adjournment of three weeks to allow new counsel to receive the papers and take instructions from the applicant. The prosecution did not oppose the application but reminded the judge that under section 3 of the 1994 Act, the judge needed to find “exceptional circumstances” before the timetable could be extended beyond the six-month deadline. Defence counsel was unable to address the judge on the point of “exceptional circumstances” owing to his lack of familiarity with the case. Accordingly, the matter was adjourned to 4 December 2001 to review progress. 14. On 4 December 2001 defence counsel indicated to the judge that, owing to the complexities of the case, he would not have a defence response prepared before Easter 2002. He also indicated that a contested hearing, which the parties now appeared to consider necessary, would require a two-week time estimate. The judge was again referred to section 3 of the 1994 Act and it was decided with the agreement of all parties to postpone the confiscation timetable to the end of May 2002 pursuant to the court’s powers under that section. The judge suggested a provisional date of 20 May 2002 for the substantive confiscation hearing. 15. At a hearing on 25 January 2002, the defence gave notice that it wished to challenge the validity of the postponement of the confiscation hearing on the basis that the Crown Court had no jurisdiction because procedural requirements had not been properly followed by the judge at the hearing on 4 December 2001. The judge set a timetable for the service of skeleton arguments on the jurisdiction point and fixed 14 March 2002 for legal argument on the matter. 16. In early March, as a result of informal discussions between junior counsel for both sides regarding a case pending before the Court of Appeal on the jurisdiction point, the 14 March 2002 date was vacated. In the event, the pending appeal case was subsequently conceded by the prosecution so no oral argument took place in that case. A review hearing in the applicant’s case was scheduled for 22 March 2002. 17. Prior to the hearing on 22 March 2002 it became apparent that the parties had misunderstood each other in agreeing to vacate the 14 March 2002 date. Counsel for the defence had understood that if the appeal in the other case was decided in the appellant’s favour, the prosecution in the applicant’s case would terminate the confiscation proceedings against him. Counsel for the prosecution denied that such an undertaking was ever made. Counsel for the defence indicated his intention to argue abuse of process on the basis that an undertaking had been given and was then reneged upon. 18. On 22 March 2002, the prosecution indicated its intention to proceed with the confiscation hearing on 20 May 2002, as planned. The defence requested that legal argument on jurisdiction and abuse of process be postponed to suit the diary of leading counsel. The judge noted that it was “a supreme irony frankly ... that this case was adjourned solely for Mr Piper’s benefit and he now has the temerity to say that there is no jurisdiction to try him.” He also commented that since the prosecution had produced its statement under section 11 of the 1994 Act before the sentencing hearing on 6 June 2001, Mr Piper had done absolutely nothing. The judge indicated his preference for retention of the May date for the substantive hearing with any legal argument to take place beforehand, suggesting that alternative leading counsel could be found. Defence counsel proposed instead that the May date be set down for legal argument and after that, unless the confiscation proceedings had fallen away, the defence would serve their response by the end of May. The judge reluctantly put back the substantive confiscation proceedings until 13 June 2002, noting that he was “very loath to have further slippage than is absolutely necessary”. 19. On 22, 23 and 27 May 2002 two defence applications submitted by newly instructed leading counsel were heard. The first was to stay the confiscation proceedings on grounds of abuse of process; the second was for an order declaring that there was no jurisdiction to continue the confiscation proceedings on account of the judge having failed to observe the proper procedural requirements when he postponed the confiscation hearing on 4 December 2001. 20. In his ruling of 27 May 2002 the judge found, in relation to the jurisdiction point that the original adjournment was to afford the defence more time, that no defence response had been forthcoming to the prosecution statement and that further delay had been caused by the applicant wishing to instruct new solicitors. He indicated that he had listed the case on 4 December 2001, two days before the six-month time-limit expired, and that on that date he had postponed the listing to 31 May 2002 in compliance with section 3 of the 1994 Act. He further found that no prejudice had been caused to the applicant as a result of the postponement. Accordingly, he concluded that the court had jurisdiction to deal with the confiscation proceedings. On the issue of abuse of process, the judge ruled that there had been a misunderstanding between counsel as to whether any undertaking had been given and that no abuse therefore arose. Following the ruling, the confiscation proceedings were adjourned and fixed for September 2002 to allow the defence to prepare their case. 21. Further argument then took place in relation to the jurisdiction point following a Court of Appeal judgment on 27 June 2002 in which a confiscation order was quashed following a finding that a Crown Court judge had not complied with the requirements of section 3 of the 1994 Act. The applicant asked the judge to reconsider his ruling of 27 May 2002. The judge considered the applicant’s case to be distinguishable on the facts. However, on the request of the defence and following advice from both parties that an interlocutory appeal could be completed quickly and that the September 2002 confiscation hearing would not need to be vacated, he certified the point as fit for appeal to the Court of Appeal. 22. The applicant duly lodged an appeal on the jurisdiction point. For unknown reasons, matters proceeded more slowly than the parties had expected and the September confiscation hearing did not go ahead. A further judgment in a similar appeal was handed down by the Court of Appeal on 16 December 2002 (R v Knights (Richard Michael) and others [2002] EWCA Crim 2954). An appeal against that judgment was lodged with the House of Lords. 23. The applicant’s case was adjourned further in December 2002 and February 2003 on application by him under section 3 of the 1994 Act, the “exceptional circumstances” being the pending House of Lords appeals. The parties were requested to keep the court updated. The applicant was subsequently informed by letter from the Court of Appeal dated 24 March 2003 that a question had been certified for the House of Lords in the case of Knights and others and that all similar appeals, including his own, would be held in abeyance until that appeal had been decided by the House of Lords. 24. As a result of this, and disclosure issues in relation to the receiver, the matter was further postponed in September 2003 until 9 January 2004 by which time the House of Lords had not issued a judgment in Knights and others. The judge allowed a one-week adjournment to obtain an update from the judicial office of the House of Lords. He was reminded by the applicant that he would again need to formally postpone the confiscation hearing. The judge proposed a further six-month postponement, on the proviso that he be provided with more up to date information in a week’s time and that if the proceedings could be listed and dealt with before the six-month period had expired, the parties should arrange this. Both counsel agreed. 25. Further hearings took place in June and July 2004. However, the House of Lords had still not issued a judgment. Further postponements were ordered. 26. On 27 September 2004 the judge was informed that the applicant had lodged an out-of-time appeal with the Court of Appeal against his conviction. Accordingly, there was little point in fixing a date for a substantive hearing in the confiscation proceedings. The applicant suggested a postponement to June of 2005. The judge agreed to the postponement on condition that the parties kept him informed of any progress in the meantime. 27. On 21 July 2005 the House of Lords handed down their judgments in two jurisdiction appeals (R v Knights and others [2005] UKHL 50; and R v Soneji and another [2005] UKHL 49). It upheld the confiscation orders, stating that any prejudice caused to the defendants by delay was outweighed by the public interest in not allowing convicted offenders to escape confiscation for bona fide errors in the judicial process. 28. On 28 July 2005 a procedural hearing was held in the Crown Court in the applicant’s case. The applicant’s counsel acknowledged that the House of Lords judgment effectively ruled out the prospect of a successful appeal on jurisdiction. The applicant requested a further adjournment to allow the parties to discuss matters further and agree amongst themselves a convenient date in September for the next hearing. The judge agreed to an adjournment. It is unclear whether a hearing took place in September or whether further adjournments were agreed in light of the applicant’s pending appeal against conviction. 29. In the meantime, from October to December 2005, separate hearings were held in the Court of Appeal relating to the applicant’s appeal against conviction. On 1 February 2006, the applicant was released from prison, having served half of his sentence. On 17 November 2006, apparently following adverse outcomes on various issues relating to his appeal, the applicant abandoned his appeal against conviction. 30. On 8 December 2006 at a review hearing in the confiscation proceedings, the applicant informed the court that he had a large number of witnesses and a great deal of work was yet to be done. The applicant’s counsel gave notice of a potential abuse argument arising from the deaths of two of his witnesses. The judge fixed a timetable for further proceedings, including the lodging of an amended “section 11 statement” by the prosecution and reply by the applicant. The matter was listed for a hearing in late January 2007. The prosecution served the amended statement in January 2007. At the hearing on 25 January 2007 it was agreed to seek suitable dates in April 2007. 31. At a directions hearing on 16 April 2007 the applicant’s counsel again raised issues relating to the volume of work and requested until the end of May to respond to the prosecution’s “section 11 statement”. The judge extended the deadline to 1 June 2007 and ordered that the prosecution serve any further response within four weeks. A procedural hearing was agreed for 6 July 2007. The judge further extended the deadline for the confiscation hearing on the grounds of “exceptional circumstances”, stating that this was “a wholly exceptional case”. 32. At the procedural hearing on 6 July 2007 the applicant proposed November 2007 for the substantive confiscation hearing and assured the judge that the hearing would not last longer than a week. The judge was scheduled to start a complex trial on 12 November 2007 to last until Christmas. He therefore listed the applicant’s case for 6 November 2007. On 1 November 2007 the parties appeared before the judge. The applicant’s counsel informed the judge that, contrary to previous advice to the court, one week would be insufficient for the substantive hearing as he now wished to call more witnesses than had originally been indicated. The judge’s other commitments precluded a rescheduled hearing taking place before Christmas and counsel could not agree on dates after Christmas. The judge decided to keep the hearing fixed for 6 November 2007 to clarify the situation as to dates. The matter was further adjourned at hearings that took place in November 2007 and December 2007. The substantive hearing was listed for 20 July 2008, with a time estimate of two weeks, but in fact lasted four days from 22 to 24 July 2008. 33. The judge delivered his ruling on the confiscation on 19 December 2008. He identified the total amount of the applicant’s benefit from criminal conduct as GBP 1,840,563. He found the principal realisable asset to be a farm, which was valued at GBP 690,000. A confiscation order was made, with a three-year term of imprisonment to be served consecutive to the main sentence in default of payment. In his judgment, the judge also addressed the question of delay, noting that the delay incurred resulted partly from the applicant’s desire to challenge the jurisdiction of the court, partly from his appeal to the Court of Appeal and partly from his decision to change his legal representatives. 34. On 11 February 2009 the applicant requested the judge to vary the confiscation order and reopen his findings on the delay issue on the basis of the judgment of this Court in Bullen and Soneji v. the United Kingdom, no. 3383/06, 8 January 2009. The judge declined, noting that it was now for the applicant to seek other remedies. 35. The applicant applied, out of time, to the Court of Appeal for leave to appeal the confiscation order. He argued, first, that the judge had erred in including the current value of the farm within the benefit figure of the proceeds of drug trafficking; and, secondly, that the delay in the disposal of the confiscation proceedings had breached his right to a fair trial and to a trial within a reasonable time under Article 6 § 1 of the Convention. 36. An oral hearing took place before the full court to decide upon both leave to appeal and the merits on 17 March 2010. The Court of Appeal granted leave to appeal but dismissed the appeal itself, upholding the confiscation order and finding no violation of Article 6 § 1. As regards the delay complaint, the court considered the whole period from the applicant’s arrest in January 1999 to the making of the confiscation order in December 2008. It indicated that the delay: “3. ... raises a prima facie case of a significant breach of Article 6. Unless there is a satisfactory explanation for it, it is a chronology which is way, way below the standards which are expected and achieved in the courts of this country. ... 8. ... We start with the proposition that the passage of such a length of time as we have described calls for the most careful investigation and detailed justification. It is simply on the face of it well beyond acceptable.” 37. The court found that the period from the applicant’s arrest in January 1999 to the conclusion of his first trial on 31 August 2000 was wholly unexceptional and reasonable. As to the period between the discharge of the jury in the first trial to the conclusion of the second trial in June 2001, a period of ten months, the court accepted that the abandonment of the first trial was the fault of the prosecution, noting: “11. ... The trial had to start all over again. It was not concluded by conviction at the end of the second trial until 5th June 2001. There is thus a period of 10 months from 31st August 2000 until 5th June 2001 which was an unnecessary delay attributable to the error, although in good faith, made on behalf of the prosecution by some junior clerk. That period is therefore potentially available to be considered as the responsibility of the State.” 38. The court then examined the delay from the end of the second trial in June 2001 until July 2005, when the House of Lords’ judgment in the jurisdiction appeals was handed down. It observed that at the outset of this period, the confiscation proceedings were moving in good time. The court considered that there would have been a hearing of the confiscation question in about the spring or early summer of 2002, if that probable timetable had not been overtaken by the applicant’s challenge to the court’s jurisdiction, of which the court noted;. “14. ... He was entitled to do so. The issue was raised before the trial judge in the early part of 2002 ... The controversy as to the correct construction of the confiscation legislation was not resolved until the decision of the House of Lords in R v Bullen and Soneji ... In fact the question raised and decided went further than simply the confiscation legislation. It bore on a broader question of when technical failure to abide exactly by prescribed procedure has the effect of nullifying the subsequent actions of courts which is, of course, a very large general question.” The Court of Appeal considered that it was in the applicant’s interests to await the eventual authoritative ruling of the House of Lords. It therefore concluded that the delay that arose in this respect could not be criticised. 39. In the period from July 2005 until the applicant abandoned his appeal against conviction in November 2006, the court considered that the delay was the result of the appeal lodged “long out of time”, noting: “17. ... Whilst an appeal against conviction was outstanding there could not of course sensibly be a confiscation hearing because if the defendant’s conviction disappeared so would any prospect of confiscation.” The court observed that the applicant had engaged a third counsel for the appeal, and pursued it on grounds that had never been supported by those who had conducted his trial. It further noted that the various grounds advanced by the applicant fell away one by one over that period, but one of them remained and was not finally laid to rest until November 2006. The court concluded: “19. ... The simple fact is that the appeal on this ground, as on the others, had always been without any proper basis or merit. It is this additional period to which we referred prospectively earlier on as an example of the defendant taking the course that he is quite entitled to do – leaving no legal stone unturned – but adding to the passage of time as a result. We are satisfied that nothing in that period can be called unreasonable delay attributable to the act or omission of the State.” 40. As regards the period between November 2006 and December 2008, when the confiscation order was eventually made, the Court of Appeal noted that the parties had returned promptly to the Crown Court for the resumption of the confiscation issue within a fortnight of the abandonment of the appeal against conviction. It was apparent at the hearing of 8 December 2006 that the prosecution was pressing for a short timetable. The applicant’s representatives, on the other hand, wanted a longer timetable and were seeking additional time on the grounds that they had an enormous volume of work and would be calling a large number of witnesses, and might even be mounting an abuse argument on the grounds that some potential witnesses had died. Hearings were adjourned owing to the applicant’s applications. Although the Court of Appeal did not blame the applicant for his conduct, the court made it clear that any additional passage of time as a result of that conduct was not attributable to any act of the State. It observed in particular that: “20. ... At one such hearing, in January 2007, the defendant through his lawyers indicated that there would be no less than 49 witnesses necessary to be examined at the confiscation hearing ... [that] was eventually set down for November, taking into account the potentially large number of witnesses and time that would be needed. At that stage the estimate, which according to English practice will have been an estimate contributed to by both parties, was five days. That is a very long time for a confiscation hearing but if the time has to be found it has to be found. However, that date had to be broken on the application of the defendant because they assured the judge that they had so many witnesses to call that in fact 14 days would be needed, that is three court weeks, to hear the confiscation question. In the end, the defendant called five (not 49) witnesses and one of those was himself.” 41. The court commented on the time taken by the Crown Court judge to deliver his ruling (some four and a half months after the conclusion of the confiscation hearing) as follows: “22. ... We do not doubt that that will be attributable to the demands made on the judges at the Central Criminal Court, but it is too long and that period, or at least part of it, is no doubt the responsibility of the State. Judgments of this kind ought to be delivered within, at the very least, two or three months.” 42. Looking at the passage of time as a whole, the court concluded that there had not been in the applicant’s case unreasonable delay attributable to the acts of the State. The court also considered the impact of the passage of time upon the applicant, and acknowledged that he and his wife lived throughout this time with the uncertainty of whether they would lose his family home. However, given that his assets remained the same throughout the whole period and that he continued to enjoy his home which might have otherwise been taken from him earlier, the court had very little doubt about where the balance of advantage lay. It concluded: “25. The reality of this case is that this was a defendant of resourceful approach who deployed every possible legal stratagem to delay the confiscation process. He cannot now be heard to say that as a result of his having succeeded in delaying it, it has become unfair for the confiscation order to proceed. If there had been unreasonable delay attributable to the State, in the absence of any possible damage to the defendant beyond the very limited uncertainty that we have mentioned we are quite satisfied that this could not possibly have been a case in which the appropriate remedy would have been a stay of the confiscation process for abuse of process. There would simply have been nothing remotely unfair about the defendant eventually having to disgorge the confiscation which was the consequence of his offending. The appropriate remedy would, hypothetically, as it seems to us, have been a declaration. But that does not in the end arise. It follows that the substantive ground ... in relation to Article 6 fails.” 43. Since the lodging of his application to this Court, a further judgment has been handed down by the High Court on 7 December 2011, substantially reducing the amount of assets payable under the confiscation order (CPS v Piper [2011] EWHC 3570 (Admin)). | 1 |
test | 001-140785 | ENG | EST | CHAMBER | 2,014 | CASE OF TALI v. ESTONIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award | Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1977. He is serving a life sentence in prison. 6. According to an extract from the register of convictions provided by the Government, the applicant had nine criminal convictions and one misdemeanour punishment on record. He was serving a life sentence on the basis of his conviction in 2001 for the murder of two people and attempted manslaughter of another person. Furthermore, he had several convictions for attacking prison officers and other prisoners. In addition, a large number of disciplinary punishments had been imposed on him in prison, including for disobeying orders of and threatening prison officers. In the individual action plans (kinnipeetava individuaalne täitmiskava) drawn up in Tartu Prison and in Viru Prison, the applicant was characterised as a dangerous person lacking in self-control and capable of physically attacking others. 7. On 3 July 2009 the applicant was informed by prison guard KA that he would be transferred to a punishment cell in the evening in order to serve a disciplinary punishment. The applicant was dissatisfied, as he had been led to understand that he would not have to serve the punishment in question until the resolution by the Chancellor of Justice (Õiguskantsler) of his complaint related to the matter. He said that he would not gather his belongings until he could clarify the situation with a security officer. KA told him that if he continued to object to going to the punishment cell, he would be taken there by force. The applicant replied that he would defend himself if unlawfully attacked. 8. At 5.45 p.m. KA, together with two further guards, MN and JT, went to the applicant’s cell. KA had a plastic shield and MN and JT wore flak jackets and helmets. KA moved towards the applicant, keeping the shield in front of him. MN and JT followed him. 9. According to the applicant, KA came up to him and pressed the shield into his chest while the two other guards added pressure from behind. The applicant tried to push back against the shield, while MN and JT tried to grab his hands. Then KA let the shield fall and tried to grab the applicant’s neck. The guards twisted his arms behind his back and ordered him to lie down on the floor. The applicant was brought down and KA pressed his neck so strongly that he lost his breath. According to the applicant, KA pinched his nose with his fingers, covered his mouth with his palm, pressed his knee into his neck and poked him in the eyes with two fingers. While on the floor, the applicant was handcuffed and kicked in the ribs so hard that he felt his left rib cracking. He was then raised up and escorted to the punishment cell. In the corridor the applicant lost his breath, cried that he could not breathe and asked for permission to straighten up but the guards pressed him down and continued on their way. 10. According to the prison guards, the applicant attempted to hit them and had a scuffle with KA, in the course of which the latter sustained minor injuries. They denied having kicked or strangled the applicant and submitted that he had subsequently threatened to kill them one by one. 11. In the punishment cell, two nurses came to examine the applicant. They suspected a broken rib and told him to lie still until an X-ray image was taken (for the medical evidence in the case, see paragraphs 21 to 27 below). A guard told them that a medical certificate was required to keep a mattress in the punishment cell around the clock. According to the applicant a nurse confirmed that such a certificate would be drawn up. 12. At 6.45 a.m. guard OV entered the applicant’s cell and told him to hand in the mattress. The applicant explained that the nurses had drawn up a certificate stating that he needed the mattress around the clock because his rib was broken. The guard left. 13. At around 8.00 a.m. guards AR, VG, RT and OV came to the applicant’s cell and told him to hand in the mattress. They had a discussion of some length, in the course of which the applicant requested that senior duty officer ML be called. Guard AR warned the applicant that force would be used if necessary. According to the statements of VG given in the subsequent criminal proceedings, the applicant threatened to kill them. The guards left and returned after about fifteen minutes. According to the Government the guards had in the meantime checked with the medical service that the applicant had not in fact been authorised to keep the mattress in the punishment cell. 14. At around 8.30 a.m. six guards arrived at the applicant’s cell. AR and VG entered, four further guards remained in the corridor or stood at the door to the cell. 15. According to the applicant, AR came up to him, grabbed his left hand and told him that they were going to take the mattress from him. The applicant pulled his hand away and VG – unexpectedly and without any notice – sprayed pepper spray in his face while AR was attempting to twist his arm. The applicant ran out of the cell into the corridor, covering his face with his hands. Several guards attacked him from behind and he was forced down on the floor. He was repeatedly hit on the back after handcuffs had been put on him. After the applicant shouted that he could not breathe VG struck him a couple more times. He was then raised up off the floor, bent down and guided to the security room. According to the applicant, he fainted several times on the way because his injured rib caused him serious pain when being bent down. 16. The Government relied on the statements of the prison guards given in the subsequent criminal proceedings. All six prison guards present were interviewed in the criminal proceedings, either as suspects or witnesses. According to AR and VG, the applicant pushed AR when he attempted to take the mattress. Then VG used pepper spray. According to the statements of the guards, the applicant resisted strongly and was forced down on the floor in the corridor. According to VG, he struck the applicant, who was on all fours, three times with a telescopic baton in order to overcome his resistance and handcuff him. AR and RT were unable to give details about the blows inflicted by VG. Nor was OV initially able to provide such details, but at a second interview he stated that by the time he closed the handcuffs, the applicant had not yet been hit with the telescopic baton. AJ thought that the applicant had probably been handcuffed while he was being hit by VG. According to AT, the applicant had been handcuffed but had forcefully struggled and pushed VG with his shoulder, after which the latter had struck him one or two times without much force. 17. The applicant was then strapped to a restraint bed in accordance with the orders of duty officer ML, as he was still behaving aggressively and offering physical resistance to the officers. 18. According to the applicant he was suffocating from the pepper spray in his throat but the guards pressed him to the bed, strangled him and did not let him spit. Finally he was allowed to spit and given the water he had asked for. 19. According to a report on the use of the restraint bed, the applicant was strapped to the bed from 8.40 a.m. to 12.20 p.m. His condition was monitored once an hour, when the necessity of the continued use of the means of restraint was assessed on the basis of his behaviour. 20. The report contains the following entries. At 8.40 a.m., 9.35 a.m., 10.30 a.m. and 11.25 a.m.: “[use of the restraint measures] to be continued, [the applicant is] aggressive”. At 12.20 p.m.: “[use of the restraint measures] to be discontinued, [the applicant is] calm.” The report also contains an entry according to which medical staff checked on the applicant; the time of the medical check-up recorded on the copy of the report on file is illegible. 21. According to a medical certificate dated 3 July 2009 medical staff had been asked to establish the applicant’s injuries in the punishment cell. It was stated in the certificate that the applicant had no visible injuries but there was crepitation in the area of the seventh rib on the left side. A rib fracture was suspected. 22. According to two medical certificates dated 4 July 2009 the applicant was examined by nurse RK at 8.50 a.m. and at 12.20 p.m. after his release from the restraint bed. It is stated in the certificates that the applicant had no visible injuries and did not need medical assistance. According to the applicant these certificates were “fabricated” in order to cover up his beating and were in contradiction with other medical evidence. 23. On 4 July 2009 the applicant underwent an X-ray examination which revealed no clear traumatic changes. Photographs were taken of the haematomas (described below) on the applicant’s body. He gave a urine sample. Urine test results, dated 6 July 2009, showed red blood cells in the urine. 24. According to a medical certificate dated 6 July 2009 the applicant had three haematomas measuring 20 by 1.5 cm on his back, a haematoma with a diameter of 8 cm on his right upper arm, a haematoma with a diameter of 3 cm on the right shin, swelling to the left wrist, crepitation in the region of the eighth and the ninth ribs on the left side. The applicant complained that he had been beaten on the back by the guards, complained of pain in his back and said that his urine had been red. The doctor considered that providing the applicant with a mattress was justified. 25. An ultrasound scan of the applicant’s kidneys performed on 7 July 2009 revealed no signs of disease. 26. According to a medical certificate concerning the applicant’s examination in a punishment cell on 9 July 2009, there were haematomas on the applicant’s back and ribs. The applicant did not allow the doctor to touch him, was aggressive and demanded a mattress. However, the doctor considered that the applicant’s chronic lower back pain did not serve as a reason for him to have a mattress. She made a recommendation “for further referral to a psychiatrist”. 27. In a written explanation to the prison director by nurse RK, dated 21 July 2009, she submitted that she had been asked to examine the applicant, who had been strapped to the restraint bed on 4 July 2009. The applicant had complained, as he had already done on the day before, of pain in the chest under the ribs. The nurse and guards, as well as the applicant himself, had wiped his eyes with wet napkins. The nurse had issued a medical certificate stating that she had discovered no injuries on the applicant. At 12.20 p.m. on 4 July 2009, upon the applicant’s release from the restraint bed, she had again been asked to examine him. He had no complaints, save for the previously known complaint of pain in the lower part of his chest. The nurse had issued a certificate stating that she had not discovered any injuries and that the applicant had not needed medical treatment. On both occasions the examination had been carried out visually and the nurse had asked the applicant about his complaints. She had only noticed the haematomas on the evening of 4 July 2009. She had not noticed them before and had not carried out a more detailed examination because this had not been requested by the applicant. Based on her earlier experience with the applicant, the nurse had known that he was very demanding in respect of medical treatment. Thus, she had assumed that the applicant was not suffering from any serious conditions. 28. On 7 July 2009 the Prisons Department of the Ministry of Justice started a criminal investigation into the applicant’s allegations of abuse of authority by prison guards. The investigation was carried out by Ida Police Headquarters. 29. On 8 July 2009 the applicant was interviewed as a victim. Between 7 and 28 July 2009 four guards (KA, MN, VG and JT) were interviewed as suspects. Six further prison officers (including OV), a prison doctor and a prisoner were interviewed as witnesses. Reports on the use of the special equipment and means of restraint (shield, helmets, flak jackets and handcuffs on 3 July 2009 and handcuffs and restraint bed on 4 July 2009), and written explanations to the prison director from prison officers involved in the incidents were also included in the criminal case file. 30. On 23 September 2009 prison guard OV was interviewed for the second time. 31. On 26 November 2009 the police requested additional information from the prison administration, including the applicant’s medical records and information about the telescopic batons used in the prison. 32. On 15 December 2009 the police ordered a forensic expert examination of the applicant’s injuries. The expert completed his report on 15 February 2010. He relied on the written materials in the criminal case file, including a report of the applicant’s interview, medical documents and photos of the haematomas on the applicant’s body. He was of the opinion that the stripe-shaped haematomas on the applicant’s back had resulted from blows struck with a blunt instrument such as a stick or a baton, possibly on 4 July 2009. The haematomas on the applicant’s upper arm and shin had resulted from blows struck with a blunt instrument or from the applicant’s body being slammed against it. The haematoma and crepitation in the region of the eighth and the ninth ribs may have resulted from a rib fracture, but that diagnosis could not be confirmed without an X-ray examination. The expert concluded that the injuries in question were not life threatening and usually caused short-term health damage lasting from four days to four weeks. 33. On 5 February 2010 the applicant was interviewed for the second time. 34. On 10 February 2010 the police ordered a forensic expert examination of video recordings from prison security cameras. The expert completed his report on 13 April 2010. Having obtained forty-eight magnified and processed images from the video recordings, he concluded that it was not possible to establish the exact time at which the applicant was hit. 35. On 15 June 2010 the police investigator discontinued the criminal proceedings. She considered that the use of force by the prison guards against the applicant on 3 and 4 July 2009 had been lawful, since he had not complied with their orders and had behaved in an aggressive manner. On 3 July 2009 he had refused to gather his belongings for his transfer to the punishment cell and had threatened to resist if force was used. On 4 July 2009 he had refused to comply with the prison’s internal rules and hand in his mattress. The guards had not denied that they had used force but had asserted that this had been the only way to overcome the applicant’s resistance. The applicant had attempted to escape and run out of the cell. Thus, the use of force had had a legal basis. It did not appear that VG had used the telescopic baton to deliberately cause injuries to the applicant. Nor could it be established that the force used by JT, VG, MN and KA had been excessive. They had countered an imminent attack after a more lenient response had not proved effective and the applicant had continued his resistance. 36. On 17 June 2010 the police investigator’s decision to discontinue the criminal proceedings was approved by a circuit prosecutor. 37. On 25 August 2010 the State Prosecutor’s Office dismissed the applicant’s appeal. It considered that the use of force, special equipment and means of restraint had been caused by the applicant’s behaviour, that is to say his failure to comply with the orders given to him and his physical and verbal aggressiveness towards the prison officers. It relied on the applicant’s handwritten letter of explanation to the prison director, in which he had confirmed having said on 3 July 2009 that if the prison officers unlawfully attacked him, he would strike back. Furthermore, according to prison guard MN the applicant had threatened to kill them if force was used to transfer him to the punishment cell. Considering the applicant’s extremely aggressive resistance, it had been proportionate to use force to bring him down to the floor and to hold him there. 38. In respect of the events of 4 July 2009 the State Prosecutor’s Office referred to the statements of the suspects and witnesses, according to which the applicant had threatened the prison officers. It had been established that guard VG had used pepper spray after the applicant had pushed AR. The applicant had been engaged in an unlawful attack and the use of pepper spray against him had been lawful. Although the applicant’s subsequent running into the corridor could not be seen as an attempt to escape, it had still been possible that the situation might have got out of the prison officers’ control and they had had grounds to believe that the applicant would continue attacking them. To prevent such a scenario, the prison officers had legitimately acted in a quick and decisive manner, including through the use of the telescopic baton by VG. The incoherent statements of the witnesses as to the issue of whether the blows with the telescopic baton had been delivered before or after the applicant’s handcuffing did not allow for a firm conclusion to be made on that point. Nevertheless, based on the witness statements, the prosecutor considered it probable that the applicant had been hit before handcuffing. She also referred to the principle that any reasonable doubt should benefit the accused and considered that it had not been established that the prison guards had unlawfully used a weapon, special equipment or force against the applicant. In respect of the applicant’s being strapped to the restraint bed, the State Prosecutor’s Office concluded that the video recordings showed that after being handcuffed the applicant had remained aggressive and had offered physical resistance to the prison officers. 39. On 21 October 2010 the Tartu Court of Appeal dismissed the applicant’s complaint against the decision of the State Prosecutor’s Office. It found that it had been established that the applicant had offered resistance to the prison officers and therefore the use of special equipment and means of restraint had been legitimate. The court agreed with the position expressed in the decision of the State Prosecutor’s Office that the special equipment had been used to the extent it had been necessary to overcome the applicant’s resistance. Thus, there were no grounds to continue the criminal proceedings in respect of the prison officers. 40. On 6 August 2009 the applicant filed a claim for non-pecuniary damage with the prison administration for his inhuman and degrading treatment on 3 and 4 July 2009. The claim was dismissed and the applicant filed a complaint with the Tartu Administrative Court. 41. In a judgment of 8 March 2010 the Tartu Administrative Court found for the applicant. It declared the use of the means of restraint, special equipment and service weapons in respect of the applicant unlawful. The court found that although the applicant’s failure to comply with the orders given to him had undeniably constituted a threat to the general security of the prison, the use of handcuffs and his immobilisation had nevertheless not been justified, as there was no evidence and it had not been argued that the applicant had been armed or equipped with a dangerous item or that he had intended to escape or attack anyone. However, the court dismissed the applicant’s claim for compensation, considering that the use of means of restraint and special equipment had been caused, to a large extent, by the applicant’s own behaviour. He had disputed the officers’ orders, engaged in an argument with them, voiced threats and offered physical resistance. In these circumstances the finding of the unlawfulness of the prison’s actions constituted sufficient just satisfaction. 42. Both parties appealed against the Administrative Court’s judgment. The applicant claimed monetary compensation and the prison administration contended that the prison officers had not acted unlawfully. 43. At the hearing of the Tartu Court of Appeal on 22 September 2010 the applicant submitted, inter alia, that on 3 July 2009 he had been kicked in ribs once and that on 4 July 2009 he had been hit with a telescopic baton after he had already been handcuffed. Video recordings concerning both 3 and 4 July 2009 were played at the hearing. 44. By a judgment of 14 October 2010 the Court of Appeal quashed the Administrative Court’s judgment and dismissed the applicant’s complaint. It found that the use of the means of restraint, special equipment, physical force and service weapons had been lawful. The court considered that the prison had been authorised to use preventive measures in case of a probable threat. It noted that the applicant was serving a life sentence and had two further convictions for attacking prison officers. In January 2009 he had also threatened to kill a prison officer. 45. In respect of the events of 3 July 2009 the Court of Appeal noted that there was no dispute that the applicant had repeatedly refused to comply with the prison officers’ order to go to a punishment cell. Furthermore, he had offered physical resistance and caused minor injuries to KA. Therefore, physical force and handcuffs had been used. Considering the applicant’s unlawful and aggressive behaviour, threats to the prison officers and to the general security in the prison, as well as the short duration (fifteen minutes) of the use of the handcuffs, the Court of Appeal found that the use of handcuffs had not been unlawful. In respect of the use of force, the court found that there was no evidence to prove that the applicant had been kicked, strangled or poked in the eyes with fingers. According to the medical evidence there had been crepitation but no fractures of the ribs. The court considered that pain in the applicant’s chest that he had complained of could have resulted from his resistance, which had led to a scuffle and his being forced on the floor for handcuffing. 46. In respect of the events of 4 July 2009 the Court of Appeal considered it established that the applicant had displayed disobedience and threatened the prison officers. He had offered physical resistance against the guard who had attempted to take the mattress. Thus, the use of pepper spray had not been disproportionate or unlawful. Since the subsequent use of physical force had proved not effective, it had also been justified to use the telescopic baton in order to have the applicant handcuffed. The fact that the applicant had been aggressive at the time he was strapped to the restraint bed had also been proven by the video recording shown at the court hearing. 47. On 17 February 2011 the Supreme Court declined to hear the applicant’s appeal. 48. Article 291 of the Penal Code (Karistusseadustik) stipulates that abuse of authority, that is unlawful use of a weapon, special equipment or violence by an official while performing his or her official duties, is punishable by a fine or by one to five years’ imprisonment. 49. Relevant domestic law and practice concerning the use of special equipment and means of restraint in prison has been summarised in the judgement of Julin v. Estonia (nos. 16563/08, 40841/08, 8192/10 and 18656/10, §§ 8490 and 94, 29 May 2012). 50. For relevant international instruments concerning the use of instruments of restraint, see Julin, cited above, §§ 95-97, and Kummer v. the Czech Republic, no. 32133/11, §§ 40-43, 25 July 2013. 51. According to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 (“the CWC”), tear gas is not considered a chemical weapon and its use is authorised for the purpose of law enforcement, including domestic riot control (Article II § 9 (d)). The CWC entered into force with regard to Estonia on 25 June 1999. 52. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) has expressed its concerns over the use of such agents in law enforcement. For example, in the report on its visit to Bosnia and Herzegovina (CPT/Inf (2009) 25) it noted: “79. ... Pepper spray is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control. Further, it should not form part of the standard equipment of a prison officer. The CPT recommends that the authorities of Bosnia and Herzegovina draw up a clear directive governing the use of pepper spray, which should include, as a minimum: - clear instructions as to when pepper spray may be used, which should state explicitly that pepper spray should not be used in a confined area; - the right of prisoners exposed to pepper spray to be granted immediate access to a doctor and to be offered an antidote; - the qualifications, training and skills of staff members authorised to use pepper spray; - an adequate reporting and inspection mechanism with respect to the use of pepper spray.” Similar observations and recommendations were made by the CPT in paragraph 48 of the report on its visit to the Czech Republic (CPT/Inf (2009) 8). | 1 |
test | 001-170351 | ENG | ROU | CHAMBER | 2,017 | CASE OF CACUCI AND S.C. VIRRA & CONT PAD S.R.L. v. ROMANIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for home) | András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The first applicant, Ms Floare Cacuci, was born on 2 March 1939 and lives in Oradea. She is an accounting expert and the owner and general manager of the second applicant, S.C. Virra & Cont Pad SRL, a singlemember company based in Oradea. Both applicants were members of the Romanian Institute of Accounting Experts and Certified Accountants (Corpul experților contabili și contabililor autorizați din România). 6. On 30 July 2001 the criminal department of the Bihor County Police ordered a forensic accounting report in a criminal case it was dealing with. The first applicant was appointed to produce this report, which concerned pecuniary damage to the State budget in the sum of 22,143,258,699 Romanian lei (ROL), allegedly caused by S.C. T.P. SRL, a private company. The first applicant’s fees in relation to that expert report amounted to ROL 497,250,000. Claiming that she had not been fully paid for the report, on 25 January 2004 the first applicant submitted to the county police only approximately ninety-five pages of the report, which actually consisted of more than five hundred pages. She only submitted the conclusions of the report. The annexes justifying the conclusions were thus not appended on that occasion, but at a later date (see paragraph 22 below). The first applicant alleged that, when asked by the Police to hand in the remaining pages of the report, she had replied that the report was on her computer, and that, since she had not received any payment for it, she was not able to print it, as it was extremely long. 7. On 25 March 2005 the first applicant, together with two other accounting experts, was appointed by the Oradea District Court to produce a forensic accounting report in a criminal case concerning tax fraud, forgery and the use of forged documents – offences allegedly committed by two third parties, M.G.S. and C.V.C, in their capacity as managers of two private companies. A fourth expert, who was assisting M.G.S. and C.V.C., was also appointed to participate in producing the report. The conclusions of the report, which was submitted on 15 September 2005 by the three experts and with which the assisting expert agreed, noted that no damage had been caused to the State budget by the managerial activities of M.G.S. M.G.S. and C.V.C were acquitted on 7 December 2005 by the Oradea District Court. That judgment was later upheld by the Bihor County Court on 28 May 2007 on appeal, and by the Oradea Court of Appeal on 22 May 2008 in an appeal on points of law. 8. On 18 October 2005 the prosecutor’s office attached to the Oradea District Court proposed to initiate ex officio criminal investigations against the first applicant in relation to an offence of intellectual forgery (fals intelectual, defined by Article 289 of the Criminal Code) in connection with the second forensic accounting report. The prosecutor noted that the report was based solely on documents provided by M.G.S., in spite of the fact that it stated that the district court’s case file had been consulted. In the case file, there was no request from any of the experts to either consult the file or obtain copies of it. The conclusions of the report were therefore not based on all the documents on file, in spite of what the report stated. 9. The prosecutor’s proposal also concerned the two other accounting experts, who were investigated for the same offence as the first applicant. 10. The proposal to initiate criminal investigations in respect of the first applicant was confirmed by the prosecutor’s office on 19 October 2005. 11. On 20 October 2005 the prosecutor’s office attached to the Oradea District Court filed an application with the court, asking it to issue a search warrant in respect of the first applicant’s home. The prosecutor argued that there was a reasonable suspicion that the applicant had committed intellectual forgery while producing the second forensic accounting report, in order to help one of the defendants, M.G.S, avoid investigation. The grounds for this suspicion were: the report’s conclusions contradicted the conclusions of a previous report which had been produced by another accounting expert during the criminal investigation; the report objectives proposed by M.G.S. had most likely been copied and pasted into the report itself, the two documents having the same page settings, wording, spelling and grammar mistakes; and there was no proof that the first applicant had ever studied the case file in the court’s archives or requested copies of the documents in order to produce the expert report, therefore the report was probably based solely on information provided by M.G.S. The prosecutor also stated that, in accordance with the decision of 19 October 2005, a criminal investigation had already been initiated in respect of the first applicant in relation to intellectual forgery. The prosecutor further submitted that important evidence relating to the production of the second expert report – such as a computer, a printer, files and documents (whether on paper or on disc) – could be obtained from the first applicant’s home. 12. On the same day the Oradea District Court – sitting as a single judge, Judge F.P. – allowed the prosecutor’s application and issued a warrant to search the first applicant’s home, with the aim of discovering evidence concerning the alleged offence of intellectual forgery. In accordance with the relevant domestic law, the decision was taken in camera, in the presence of the prosecutor and without summoning the parties. The warrant was to last three days, the court stating that the search was to be carried out in compliance with Articles 101, 103-108 and 111 of the Romanian Code of Criminal Procedure (hereafter “the RCCP” – see paragraph 46 below). It was formulated as follows: “Based on Article 100 of the RCCP, in view of the prosecutor’s application issued on 20 October 2005 and the investigative work which has been presented, namely: the minutes attesting to the decision of the prosecutor to initiate criminal investigations ex officio, confirmation of the proposal to initiate criminal investigations against Cacuci Floare in relation to the offence of intellectual forgery as set out in Article 289 of the Criminal Code, and the forensic reports included in the file, [the court] authorises that a home search (percheziție domiciliară) be performed at the suspect’s place of residence, [the suspect being] Cacuci Floare, daughter of ..., born on ..., in Oradea, ..., in the Bihor District. The search shall be performed in compliance with Articles 101, 103-108 and 111 of the RCCP. This warrant is to last three days from the day of issue. Given in camera on 20 October 2005 at 3 p.m.” 13. According to the first applicant, on 21 October 2005, while she was in the street, having just left her house, she was stopped by a police officer, who told her that he had a search warrant for her home. The first applicant asked to be assisted by her lawyer. The police officer then searched her bag, from which he seized some personal documents, including an orange notebook containing various phone numbers. Subsequently, a prosecutor entered the first applicant’s home in order to perform the home search, accompanied by three police officers, one of whom was an information technology (IT) specialist. 14. According to the Government’s version of events – supported by the documents in the file, as issued by the criminal investigating authorities (see paragraph 42 below) – the search of the bag was carried out inside the first applicant’s home. 15. The first applicant’s lawyer arrived at the beginning of the search, namely around ten minutes after the first applicant had been stopped in the street (see paragraph 13 above); two assistant witnesses, who were neighbours of the first applicant, were also present during the search. 16. The prosecutor’s notes in the search report produced on that occasion at the place of residence of the first applicant state that the first applicant was asked to surrender the items used to commit the alleged offence of intellectual forgery, namely the computer, the printer, and the documents on which the second expert report was based (Articles 96-99 of the RCCP, see paragraph 45 below). The first applicant confirmed the existence of such items at her place of residence. According to the search report, the first floor of the building was occupied by the first applicant’s office, where she claimed to keep the objects which had been requested and other objects essential to her professional duties. Several items and documents were found, the first applicant claiming that everything belonged to the second applicant. She showed the prosecutor a lease contract concluded between herself and the second applicant in respect of the use of one half of the immovable property. According to the report, the following objects were seized: the computer’s central processing unit, one printer, four files and documents concerning various forensic accounting reports, one CD, forty-two floppy discs, an orange notebook containing several notes written by the first applicant and telephone numbers – one of which belonged to M.G.S., see paragraph 7 above – and an empty printer cartridge box. 17. The applicants argued that, while the copy of the search report handed to them at that moment had made no mention of the manner in which the seized items had been sealed, the copy in the criminal file contained supplementary information on page 4, mentioning that the objects had been put in a sealed cardboard box labelled MAI (the Ministry of Internal Affairs) 15980. 18. At the end of the search the first applicant declared, in the presence of her lawyer, that she would submit written objections at a later stage. The witnesses had no objections concerning the manner in which the search had been carried out. 19. According to the report, the search started at 8.45 a.m. and was finished by 12.30 p.m. 20. On 18 November 2005, at the request of the prosecutor, the Oradea District Court issued a warrant for a search of the computer system and IT data seized from the applicants on 21 October 2005, namely one CD and forty-two floppy discs. The court gave reasons for its decision, accepting that there was sufficient indication that the IT data would prove that the impugned expert report had been partly copied from a document given to the first applicant by M.G.S (see paragraph 11 above). The warrant was to last three days, starting on 21 November 2005. 21. According to the applicant, on 18 November 2005 she was summoned to the Cluj District police headquarters to participate in the unsealing of the computer on 21 November 2005. She went there with her lawyer, where they noted that the sealed box was different to the box which had been used at her house during the search (see paragraphs 16-17 above). She therefore asked that the two witnesses who had been present at the search be summoned to attest that the box was different, but the request was refused. Consequently, together with her lawyer, she decided to leave the police headquarters without attending the unsealing and search procedure. 22. On 5 December 2005 the first applicant submitted the missing 497 pages from the first expert report (see paragraph 6 above) to the Oradea District Court, following payment of 60% of her fee. 23. On 8 November 2005, pursuant to Articles 275-2781 of the RCCP (see paragraph 47 below), the first applicant filed a complaint against the search carried out on 21 October 2004 (see paragraphs 13-19 above). She contested both the search itself and the manner in which it had been carried out. The first applicant submitted that the warrant had been issued only in respect of her home, and not in respect of the registered office of the second applicant. In spite of that, a search of the whole house had been carried out, including the space used by the second applicant. The seized items and documents belonged to the second applicant. The first applicant also submitted that the search had not been necessary, and could have been avoided if she had been asked to submit the relevant items and documents, as set out in Article 98 of the RCCP (see paragraph 45 below). Furthermore, no reasons had been given to justify the search measure. She argued that the limits of the search warrant had been exceeded by the search carried out in respect of her purse, which constituted a body search (percheziţie corporală), and by the fact that she had been prevented from using her mobile phone during the search. She complained of the manner in which the electronic devices seized had been sealed on that occasion. She further referred to the seizure of various items from her home, namely “personal documents and personal notebooks which had no connection to the criminal charge against her”, concluding that all the above circumstances constituted evidence of a breach of her right to a private life, personal inviolability, professional secrecy, and right of property. 24. On 24 November 2005 the head prosecutor of the prosecutor’s office attached to the District Court of Oradea dismissed the first applicant’s claims, finding that the complaint against the search measure itself was inadmissible, given the lack of specific legal provisions allowing for such an appeal, while the complaint concerning the carrying out of the search was ill-founded. 25. Concerning the appeal against the search measure itself, the prosecutor gave reasons for his inadmissibility decision, stating that it was inconceivable that any search warrant application would be debated in adversarial proceedings, as such a procedure would impede the very purpose of the search, namely the discovery and collection of specific evidence from a specific place without prior notice. The prosecutor stated that the search at the applicant’s home had been conducted in accordance with the law. The warrant had been issued in respect of her residence as stated on her identification documents. The prosecutor submitted that the investigating authorities had had no obligation to check whether that residence was also the registered office of various private companies. In the impugned forensic expert report, the first applicant had given her identification details, including her place of residence, without mentioning that the report had been issued by or on behalf of the second applicant. Moreover, during the search, the first applicant had submitted a lease contract concluded between herself and the second applicant concerning one half of the immovable property, without specifying or determining which half belonged to which party. The prosecutor also stated that the investigating authorities had been obliged to seize all pieces of physical evidence found at the search location, irrespective of who owned them, and that the pieces not belonging to the suspect had been returned to their owner at the end of the criminal trial. 26. Concerning the body search, namely the search of the first applicant’s bag, the prosecutor submitted that the relevant forensic rules set out clearly and authoritatively that such a search had to be performed before the start of a home search, “so as to preclude any potential act of aggression against the authorities or self-aggression, but also so as to locate and collect any potential corpora delicti thus hidden by the searched person (in [this] case, documents)”. The rules also provided that the investigating authorities were obliged to prevent any people inside the building in question from communicating with people outside, whether by phone or otherwise, which justified the fact that the first applicant had been temporarily prevented from using her mobile phone. 27. In respect of the manner in which the seized electronic devices had been sealed, the prosecutor stated that the report produced on that occasion had been signed by both the first applicant and her lawyer, and no objections had been raised. As mentioned in the report, the central processing unit of the computer had been sealed in a cardboard box with the MAI seal. In any event, the manner in which the seized objects had been sealed could not affect the legality of the search, but possibly their use as evidence in the criminal proceedings. 28. The first applicant contested that decision before both the prosecutor’s office attached to the County Court of Bihor and the Oradea District Court. 29. It is unclear whether any response to that complaint was given by the prosecutor’s office. In any event, the same complaint was assessed by the domestic courts in two separate sets of proceedings, as detailed below. 30. In the first set of proceedings, started by the first applicant on 23 December 2005, the Oradea District Court gave its judgment on 29 June 2006, dismissing the first applicant’s complaint as inadmissible in respect of the search measure itself, and ill-founded in respect of the manner in which the search had been carried out. The court stated that, in the event that she was indicted, the first applicant would be entitled to lodge with the criminal courts complaints regarding the search and the acts of the prosecutor. 31. The first applicant appealed. On 28 November 2006 the Bihor County Court dismissed her appeal, upholding the first instance court’s decision. It considered that the search had been lawful and in compliance with the warrant issued by the Oradea District Court. Furthermore, at the material time, the first applicant, assisted by her lawyer, had not objected to either the search or the manner in which it had been carried out. The court considered that it would be “abusive” to have an adversarial procedure for debating the necessity of a search, either before or after it was carried out. 32. In the second set of proceedings, a complaint lodged by the first applicant on 4 January 2006 reiterated the same main arguments as those presented in the proceedings described above. In particular, it referred to the fact that the limits of the search warrant had been exceeded as follows: the warrant had only been issued in respect of her home, and not in respect of the registered office of the second applicant; no warrant had existed in respect of her purse or mobile phone; certain items, like her personal notebooks, had been seized even though they had no connection with the criminal charge. The computer had been seized without being appropriately sealed, therefore the first applicant had refused to take it back in the absence of verification and confirmation by an expert that the IT data had not been altered. The first applicant argued that the real aim of the prosecutor and the police had been to seize her computer in order to copy the 497 pages of annexes to the first accounting expert report (see paragraph 6 above). In any event, the search had not been necessary, as she would have surrendered all required items and documents if she had been asked to. 33. The complaint was allocated to a single judge for determination, Judge F.P., who on 21 February 2006 asked to recuse herself from the case, as it had been she who had examined and approved the application for a search warrant on 20 October 2005 (see paragraph 12 above). That request was dismissed by the President of the Oradea District Court on the same day. It was noted that the first applicant had expressly confirmed that she was not challenging the search measure itself, but the manner in which it had been carried out. In such circumstances, there was no reason for Judge F.P. to withdraw from the case. 34. In the context of the second set of proceedings, on 28 June 2006 the first applicant lodged an application calling into question the constitutionality of the provisions of Article 100 § 4 of the RCCP (see paragraph 46 below). She claimed that the impugned provisions breached a claimant’s defence rights, right to a fair trial and right to an effective remedy, as he or she was denied the right to participate in proceedings and contest a search measure. 35. The application was dealt with by the Romanian Constitutional Court (“the Constitutional Court”), which gave its judgment on 30 November 2006, dismissing the objection as ill-founded. The Constitutional Court firstly found that the constitutionality of the impugned provisions had already been examined and found to be in accordance with the Constitution (the court referred to its decision of 21 October 2004, detailed in paragraph 52 below). The court reiterated that only the legislature could dictate the jurisdiction of the domestic courts and trial procedure. Furthermore, the Constitutional Court held that the issuing of a search warrant was a procedural measure and not a trial in itself, and that therefore the summoning of parties was not obligatory, especially as a search was conducted in the presence of the interested parties and/or their representative. Moreover, interested parties had at their disposal several opportunities and means to contest any measure taken during a criminal investigation or criminal trial. 36. The case was sent back to the Oradea District Court, which gave its judgment on 31 January 2007, dismissing the first applicant’s complaint. The court noted that a similar claim lodged by the first applicant in another set of proceedings had already been dismissed by a final judgment (see paragraph 31 above). The court further stated that the search had been carried out in compliance with the domestic legal provisions and in the presence of the prosecutor, the applicant and her lawyer, and no objections had been raised at the material time. It appears that the decision was not appealed against by the first applicant. 37. In January 2006 the second applicant was struck off the list of the Romanian Institute of Accounting Experts and Certified Accountants; the first applicant was removed from the list from January 2006 until 7 April 2010, allegedly as a result of the criminal investigations against her. 38. The first applicant was indicted on 27 September 2009, charged with perjury as a witness in a criminal trial, aiding and abetting a perpetrator (with specific reference to the criminal trial concerning M.G.S. and C.V.C.), and spoliation (the material alteration, thereby invalidation) of evidence. The indictment referred to the items seized during the search of 21 October 2005, namely documents relating to the forensic accounting reports issued by the first applicant and relevant to several criminal proceedings against various suspects (C.V.C., A.D., F.K., G.P.); the prosecutor considered that such documents had been withheld by the first applicant for the purpose of obstructing justice. The indictment stated that the criminal proceedings against the two other accounting experts (see paragraph 9 above) were to be terminated (scoatere de sub urmărire penală). 39. By a judgment of 30 November 2010 the Oradea District Court acquitted the first applicant of all charges. In relation to the charge of perjury, the court held that such a charge was relevant where an expert had been called before a court to give oral evidence, which had not been the case with regard to the first applicant. In relation to the written evidence given by the first applicant in the form of the forensic accounting report, the court held that the report was a collective piece of work produced by the three experts appointed in the case. Even if evidence had been adduced proving that only one of the experts had personally studied the file in the court’s archives, it could not be inferred that the work had been done by the first applicant exclusively and in the absence of consideration of all the relevant documents and consultation with the other experts. The court further stated that there was insufficient proof that the first applicant had favoured M.G.S. The accounting expert report had been produced with the other experts appointed in the case. The first applicant had been selected as an expert in the impugned criminal proceedings from a list of six experts, and it had therefore been impossible for her to plan to help M.G.S in any way. With reference to the documents found at the first applicant’s residence during the search carried out on 21 October 2005, the court stated that they had not been in her possession unlawfully, as all of them had been given to her by the police for the purpose of allowing her to produce the relevant forensic accounting reports. It could therefore not be inferred that the applicant had withheld the documents with the intention of obstructing justice. The court ordered that all IT equipment seized from the first applicant should be returned to her once the judgment became final. 40. By a judgment of 21 April 2011 the Oradea Court of Appeal dismissed an appeal lodged by the prosecutor and upheld the first-instance court’s judgment, stating essentially that the presumption of innocence in respect of the first applicant had not been rebutted. The only dissenting opinion of the Oradea Court of Appeal considered that the case should have been remitted to the first-instance court for a re-trial, as the first-instance judgment had lacked appropriate reasoning. 41. The first applicant filed several criminal complaints against the relevant prosecutors and police officers who had requested and carried out the search of 21 October 2005 with various domestic authorities (the Romanian Senate, the High Council of the Judiciary and the Ministry of Internal Affairs), accusing them of abuse of office for carrying out the search in breach of Articles 100-111 of the RCCP (see paragraph 46 below). She reiterated her arguments: a special warrant and a separate report had been needed for the body search (Article 106), and another warrant had been necessary for the search of the company’s registered office (Article 111). 42. Those complaints were joined and assessed in a unique case file, being dismissed as ill-founded by the Oradea Court of Appeal on 20 September 2006. The court upheld the prosecutor’s decision. In respect of the complaint concerning the body search, it found that the search of the applicant’s bag had been carried out inside her house, as a preliminary step of the actual search measure. Furthermore, the home search warrant had been issued in respect of an address, not in respect of a person or company. The court concluded that all the complaints were ill-founded. That decision was upheld by the High Court of Cassation and Justice on 10 November 2006. 43. The first applicant also submitted to the Court a copy of another undated criminal complaint, which was addressed to the prosecutor’s office attached to the High Court of Cassation and Justice. In the complaint, the first applicant claimed that the search report had been forged with regard to the manner in which the computer had been sealed (see paragraphs 16-17 above). She also stated that, at some point after the search, she had noticed that the data on her computer relating to various forensic accounting reports which she had produced had been altered while at the police headquarters, so as to provide evidence to incriminate her. In the absence of any registration number or reference to a domestic file number, it is unclear if and when that complaint was lodged with the domestic authorities; assuming that it was, it is equally unclear whether the first applicant received any response. | 1 |
test | 001-155373 | ENG | ROU | CHAMBER | 2,015 | CASE OF COSTEL GACIU v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);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) | Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1972 and lives in Gherla. 6. On 29 March 2009 the applicant was arrested on suspicion of conspiracy to commit crimes and blackmail, and was placed in the Cluj County Police detention centre. On 28 July 2009 he was transferred to Gherla Maximum Security Prison (“Gherla Prison”) where he remained until 2 February 2011, when his pre-trial detention was replaced by the courts with a prohibition on leaving the town. 7. The applicant alleged that for a period of four months, between 29 March and 28 July 2009, he was held in the Cluj County Police detention centre in a 4 sq. m underground cell with three other prisoners. The cell had no window or ventilation and the walls were covered in mould. He had no free access to water and the cell was extremely unhygienic. He further alleged that access to the toilet was given in accordance with a daily programme which in his opinion amounted to psychological torture. 8. In Gherla Prison the applicant was detained in severely overcrowded cells. He submitted that for a certain period he shared a 38 sq. m cell with twenty-six other prisoners. The cell also lacked ventilation because the window was covered with two rows of metal bars and additional metallic netting. 9. The applicant supported his allegations with statements from Mr S.O.A., who was held in a neighbouring cell in the Cluj County Police facility, and from Mr F.F., who was also held at the Cluj County Police centre at the same time as the applicant, and who afterwards shared a cell with him in Gherla Prison. They confirmed entirely the applicant’s allegations. 10. In the Cluj County Police detention centre the applicant shared a cell of 4.14 sq. m with another prisoner (thus 2.07 sq. m of personal space for each inmate). The cell was not provided with any sanitary facilities such as a toilet, sink or shower. However, the centre had two common bathrooms where the prisoners had access to the toilet on request and to the showers twice a week. The cell had no window to the outside, but ventilation was ensured by a window located above the door and protected with bars and metallic netting. 11. In Gherla Prison the applicant was initially held in quarantine for three days in a 35 sq. m cell which he shared with fourteen other prisoners also in pre-trial detention (thus 2.33 sq. m of personal space for each inmate). The cell had seven rows of bunk beds. 12. Between 31 July and 19 August 2009, still in quarantine, the applicant shared a cell of 43.25 sq. m with twenty-five other prisoners (thus 1.66 sq. m of personal space for each inmate). This cell had eight rows of bunk beds. 13. On 19 August 2009 the applicant was transferred for six days to a cell measuring 16.38 sq. m together with five other prisoners (thus 2.73 sq. m of personal space for each inmate). The cell had three rows of bunk beds. 14. Between 24 August and 9 November 2009 the applicant was held in a cell of 15.96 sq. m with four other prisoners (thus 3.19 sq. m of personal space for each inmate). The cell had three rows of bunk beds. On 9 November 2009 the applicant was moved from this cell at his own request. Between 9 November 2009 and 22 September 2010 he was placed in a cell which measured 51.52 sq. m and accommodated fifteen prisoners (thus 3.43 sq. m of personal space for each inmate). The cell had nine rows of bunk beds. 15. Between 22 and 29 September 2010 the applicant shared a cell measuring 46 sq. m with twenty-two other prisoners (thus 2 sq. m of personal space for each inmate). The cell had nine rows of bunk beds. 16. From 29 September 2010 until his release on 2 February 2011 the applicant shared a cell of 15.96 sq. m with four other prisoners (thus 3.19 sq. m of personal space for each inmate). 17. The cells the applicant was held in were all provided with several tables and a window of 2 m x 1.40 m which ensured natural light and ventilation. 18. On 22 April and 24 July 2010 the applicant requested to be allowed conjugal visits from his wife. His requests were refused by the prison authorities, with the reasoning that no right to such visits was provided for prisoners in pre-trial detention. 19. The applicant complained about these two refusals before the post sentencing judge in Gherla Prison. He relied on Article 82 of Law no. 275/2006 on the execution of sentences, which provided that prisoners on remand should benefit from the same rights as convicted prisoners. On 10 June 2010 the judge rejected the applicant’s complaint, holding that in accordance with Article 44 letters a) and b) of the Regulation for the enforcement of Law no. 275/2006 the applicant, being a prisoner on remand, did not have the right to conjugal visits. 20. The applicant complained against this decision before the Gherla District Court. He underlined that the refusal of conjugal visits amounted to discrimination in breach of the Romanian Constitution and the case-law of the Court. On 26 July 2010 the Gherla District Court rejected the applicant’s complaint with final effect, holding that the decision taken by the judge responsible for the execution of sentences on 10 June 2010 was correctly based on Law no. 275/2006, which provided for the right to conjugal visits only for convicted prisoners. The district court finally held that the contested decision was also in accordance with the Court’s case-law, which stated that restrictions on conjugal visits were not, as such, in breach of Article 8 of the Convention. 21. According to the regulations in force at the relevant time the applicant had the right to a maximum of seventy-two visits throughout his entire detention period of one year and ten months. He was visited by his wife sixty-seven times. The remaining visits were by his father and sister. All the visits took place in an area designated for visits, separated by a glass wall and speaking to each other by telephone, under the visual surveillance of prison guards. | 1 |
test | 001-164663 | ENG | RUS | CHAMBER | 2,016 | CASE OF KOTELNIKOV v. RUSSIA | 3 | Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1981 and lives in Veshenskaya, a village in the Rostov Region. 6. According to the applicant, on an unspecified date at the end of June 2002 he was sitting in a cafe. He saw P. there, a police officer and former schoolmate who was drunk and making indecent suggestions to a girl. The applicant, in his words, reprimanded P. for his behaviour, to which he replied with a vague threat. 7. Between about 10.30 and 11 p.m. on 9 July 2002 the applicant was hit by a car while on the pavement. The driver was P., who was accompanied by a passenger, Ms S.K. The accident took place in a recreational area in the centre of the village. As a result, the applicant suffered severe head and spinal injuries. P.’s car was also damaged. With the help of a passerby, G., P. loaded the semiconscious applicant into his car and drove him away from the scene of the accident. 8. At about 11 p.m. P. arrived with the applicant at a local hospital. The applicant was able to walk but was suffering from memory loss, was disoriented and did not understand what had just happened. His condition started to worsen; at about midnight he was transferred to the hospital’s intensive care unit. 9. According to the applicant, having seen what he had done, P. called his father, the chief of the local tax police and former chief of the local traffic police. P.’s father called his acquaintances, A., a traffic police officer, and M., the head of the laboratory of the local hospital. He explained to them what had happened and asked if they would help protect his son. The Government did not comment on this allegation. 10. Shortly after the applicant’s admission to the hospital A. arrived and spoke to the applicant. At 12.15 a.m. on 10 July 2002 he drew up a report stating that the applicant had fallen down the stairs of a nearby cafe and had injured himself. He made the applicant sign the report. No mention of the car accident was made. The report contained a handwritten entry, apparently in the applicant’s own handwriting, which read: “Recorded from my words, I have read it”. The report was then submitted to Sholokhovskiy police station, where the accident was logged in the daily accident record as “no. 2”. 11. At 12.20 a.m. on 10 July 2002, M. arrived at the hospital in P.’s father’s car and took samples of the applicant’s blood. After testing them she concluded that his blood contained a high level of alcohol (1.9 per mille), which meant he had been drunk at the time of the accident. The applicant was unconscious when M. took the samples. She also took blood from P. The tests showed the presence of 0.4 per mille of alcohol in his blood (the then acceptable legal limit for driving a car). The applicant alleged that the results of the tests had been falsified by M. He referred to the testimony of two staff members of the hospital, who later testified that he had not been drunk. The applicant also pointed to inconsistencies in the report by A. and the results of subsequent tests of the samples of his blood, which had revealed different levels of alcohol. 12. At about 1.15 a.m. the applicant’s parents arrived at the hospital. According to the applicant, they did not smell any alcohol on him. Furthermore, the entries made by the hospital personnel about his condition and the nature of his injuries were incomplete. No mention of his spinal injury had thus been made, since the existence of such an injury would have gone against the story that he had fallen down the stairs. Furthermore, the hospital authorities had washed his t-shirt, which contained traces of his blood and could have confirmed his version of events. 13. In the meantime P. left the hospital and returned to the scene of the accident. According to the official examination report, the police examined the scene between 1 and 2 a.m. on 10 July 2002. P. took part in the examination, together with police officers from Sholokhovskiy police station. He signed the report, as did the attesting witnesses present. The applicant claimed that the examination had taken place much later in the day, during the afternoon. 14. According to the applicant, later that day P. drove his car to a garage, where it was quickly repaired and the broken windscreen replaced. 15. At 1.45 a.m. on 10 July 2002 the applicant’s father arrived at Sholokhovskiy police station and tried to formally report the car accident. However, the officer on duty refused to accept it, referring to the earlier report by A. stating that the applicant had fallen down the stairs. 16. Between 2 and 3 a.m. doctors at the hospital made an encephalogram of the applicant’s head and took samples of his spinal fluid. 17. At 10 a.m. a second test of the applicant’s blood was carried out, which showed the presence of 0.2 per mille of alcohol. A further test of the same sample showed the presence of 0.1 per mille of alcohol. 18. The applicant’s first operation took place at about 1.30 p.m. on 10 July 2002 and was carried out by Dr Zh, a surgeon from the hospital. His condition, however, remained very unstable and continued to worsen. His relatives suspected that when they had left the hospital, someone had tried to strangle him to death, because upon their return they had discovered marks on his neck. They also blamed the hospital authorities for their inaction in dealing with the applicant’s case. 19. That day the police examined P.’s car. It appears from the report of the examination that the car had dents on the right side of the bonnet and on the front right windscreen support. The police did not mention the windscreen in their report. It is unclear whether the car was examined before or after it had been repaired. 20. At 9 a.m. on 13 July 2002 the local hospital requested the help of the Rostov City Hospital at the insistence of the applicant’s relatives. A neurosurgeon arrived at about 3.30 p.m. and performed further surgery, which was more successful. The applicant started to recover. A few days later he was transferred to the Rostov City Hospital for further treatment. In the years that followed he had to undergo a further two neurosurgical operations, but he never recovered completely; he lost the ability to work and started to suffer from repeated epileptic fits. He was registered as Category 2 disabled (where Category 1 corresponds to a severe disability preventing a person from working, and Category 3 corresponds to a less severe disability). 21. According to the applicant, on 12 July 2002 the Sholokhovskiy district police informed the District Prosecutor about the incident on 9 July 2002. The Government did not comment. 22. On 16 July 2002 the Sholokhovskiy District Prosecutor’s Office opened a criminal investigation into the accident (registered as case no. 2707168). The applicant alleged that the investigator in charge of the case, M., had been a schoolmate and close friend of P. He also alleged that the date the decision was taken to open an investigation was incorrect, as the case had in fact been opened on 18 July 2002. 23. On 17 July 2002 the investigator started questioning witnesses. G., who had been with the applicant on the night of 9 July and helped take him to the hospital, testified that the applicant had not been drinking that evening. He also testified that the applicant had been walking parallel to the road when the car had hit him. His account was confirmed by the testimony of several other witnesses. In contrast, some other witnesses testified that the applicant had suddenly moved in the direction of the car a second before the collision. Several witnesses had also noticed that the windscreen of the car of P. had been broken after the incident. It appears that the investigator identified and questioned more than twelve witnesses who had seen the accident or observed the events immediately afterwards. The investigator also questioned paramedics from the local hospital, some of whom testified that P. had probably been drunk. Others had not noticed anything of that kind. 24. On 19 July 2002 the investigator examined the car again. His report suggests that the car did not have any visible dents, but evidence of repair work was discovered on the front right windscreen support. 25. On 23 July 2002 the investigator questioned P. again. It appears that he was questioned as a witness. He claimed that the applicant had made a dangerous unexpected move in the direction of the car. He also denied that the car had sustained any damage to the windscreen or the front right windscreen support. 26. On 29 July 2002 the investigator examined the scene of the accident. It was established, amongst other things, that it had taken place in an area marked as a pedestrian zone. There was a road sign prohibiting cars from access, although it was unclear whether it had been there on the night of the accident and had been visible. 27. On 29 July 2002 a forensic expert tested a sample of P.’s blood, obtained from him on 10 July 2002. The expert did not find any traces of alcohol. A similar test of a sample of the applicant’s blood revealed the presence of 2.9 per mille of alcohol. 28. On 31 July 2002 the investigator conducted a reconstruction of the accident, in the presence of P. Neither the applicant nor his parents were notified or participated. 29. On 1 August 2002 a forensic expert drew up a report examining the nature of the applicant’s injuries and making conclusions as to the speed and direction P.’s car had been travelling, the position of the applicant’s body at the time of the accident, and other relevant factors. 30. On 2 August 2002 the investigator questioned P.’s father who explained, among other things, that the dent on the bonnet of the car was not related to the accident involving the applicant. P. testified that he had arranged for the car to be repaired a few days before the accident. 31. On 6 August 2002 the applicant’s father complained to the Regional Prosecutor that the investigator M. had been leaking information about the investigation to P.’s father. He asked that the case be transferred to another investigator from a neighbouring district. 32. On 12 August 2002 the applicant’s father submitted to the investigator in charge of the case a list of over a dozen witnesses who had seen the accident. He asked the investigator to summon and question them. 33. On 5 September 2002 the applicant was granted victim status in the investigation. On 6 and 25 September 2002 the investigator questioned him. The applicant testified, among other things, that he had not been drinking on the day of the accident. He also claimed that he had been walking straight when the car had hit him from behind. 34. On 9 September 2002 the investigator organised a reconstruction of the accident in the presence of the applicant, P. and G. 35. On 17 September 2002 the investigator questioned M. She denied falsifying the results of the blood test. The difference between the original and second blood tests could, in her words, be explained by a different testing method and the acceptable margin of error. 36. On an unspecified date experts examined the applicant’s clothes in order to establish the mechanics of the injuries. 37. On 25 September 2002 P. was questioned again, this time as a suspect in the criminal case. He refused to give evidence. 38. On 27 September 2002 the investigator questioned an expert, who explained the difference between the results of the two tests of the blood samples taken from the applicant and P. 39. On 2 October 2002 the investigator questioned the applicant’s father. 40. On 4 December 2002 a team of experts produced a report analysing the applicant’s injuries and the mechanics of the accident. They answered twentytwo questions which had been formulated by the investigator. 41. On 10 January 2003 the applicant lodged a civil claim against P. in connection with the health problems he had suffered as a result of the accident. 42. On 19 January 2003 P. was ordered by the investigator not to leave the village without his consent. 43. On 14 February 2003 P. was formally charged under Article 264 § 1 of the Criminal Code for causing serious bodily harm by negligently breaching traffic regulations. He was questioned but denied his guilt. 44. On 24 March 2003 the investigator questioned the deputy head of Sholokhovskiy police station, Ch., who had been an eyewitness to the accident. 45. On 26 April 2003 a further reconstruction of the accident was carried out. 46. On 14 May 2003 the applicant obtained an expert report from the Volgograd Forensics Bureau, in which the events of 9 July 2002 were reconstructed on the basis of the material of the case file. 47. On 20 March 2003 the applicant was examined by medical experts. 48. On 15 April 2003 doctors examined X-ray images of the applicant’s neck and drew up a report. 49. On 27 August 2003 P. started working at Sholokhovskiy police station as a district police officer. On 7 July 2003 two witnesses to the accident, S. and B., complained to the district prosecutor that pressure had been put on them by P. in connection with his criminal case. 50. On 22 November 2003 the investigator obtained another expert examination of the applicant’s injuries and the mechanics of the accident. 51. On 24 December 2003 the prosecutor approved the indictment against P. By the end of the investigation, the case file was nine volumes and over three thousand pages long. The applicant was given access to the case material. 52. On 26 December 2003 the applicant brought proceedings to challenge the investigator’s decision, as he was dissatisfied with the accident being classified as an Article 264 § 1 offence. He applied for an injunction requiring the investigator to instead charge P. under Article 111 § 2 (intent to cause serious bodily harm). On 29 January 2004 the Sholokhovskiy District Court dismissed his complaint; it held that the courts had no jurisdiction to review the decisions of the investigator in so far as they concerned the legal classification of a criminal charge, since such a decision did not interfere with the applicant’s constitutional rights and freedoms. 53. On an unspecified date in early 2004 the investigation was completed, and the parties were given access to the case material. The investigator’s decision of 27 April 2004 stated that the applicant’s father had studied it. According to him, he only had five-and-a-half hours to study the material, which consisted of four files, each three hundred pages long. During that time he was only able to read part of the material and copy one hundred and thirty pages. The last volume of the case file was incomplete and did not contain an index of documents. As a result, the applicant had to request additional time to examine the case file during the court proceedings. A handwritten inscription he had written indicating that he had not read all the material allegedly disappeared from the case file. 54. On 5 January 2004 the criminal case and indictment were forwarded to the Sholokhovskiy District Court for examination on the merits. 55. On 12 February 2004 the Sholokhovskiy District Court ruled that the first hearing in the case would be held on 26 February 2004, and that there was no need to hold a preliminary hearing. The applicant objected, claiming that one was necessary. 56. The hearings in the case were held on 26 February, 11 June and 5 July 2004. 57. On 13 September 2004 the Sholokhovskiy District Court found P. guilty under Article 264 § 1 of the Criminal Code and sentenced him to eighteen months’ imprisonment, although he was not required to serve his sentence owing to the expiry of the statutory limitation period for crimes of that category. As to the civil claim lodged by the applicant within the criminal proceedings, the court awarded him 50,000 Russian roubles (RUB) in respect of non-pecuniary damage. It also acknowledged that he had a right to compensation in respect of pecuniary damage but decided to transfer the matter to a civil court for examination because it was impossible to make a precise calculation within the criminal proceedings. 58. On 26 November 2004 P. was dismissed from service in the police at his own request. 59. On 28 December 2004 the Rostov Regional Court quashed the judgment of 13 September 2004 and remitted the case for fresh examination. In particular, it ordered the lower court to clarify whether the road sign could have been visible to P. on the night of the accident. 60. In the course of the second round of the trial the court examined documentary evidence in the case file and heard over twenty witnesses, including the applicant, P., M., the applicant’s parents, several people who had seen the accident, police officers who had been involved in the initial inquiry, two expert witnesses, attesting witnesses and a number of hearsay witnesses. 61. On 8 April 2005 the Sholokhovskiy District Court found P. guilty under Article 264 § 1 of the Criminal Procedure Code. Its findings of fact can be summarised as follows. The court found that P.’s car had been moving at 30 to 40 km/h. The car had entered the pedestrian zone, which had been marked by a road sign, and had hit the applicant from behind. He had been walking straight and had not contributed in any manner to the accident. P. had been able to avoid collision by manoeuvring or stopping his car, but for whatever reason he had not done so. He had applied the brakes a while after the collision. As a result of the collision, the applicant had received lifethreatening injuries. No mention was made of P. or the applicant being drunk during the accident. The court was also unable to make any conclusive findings as to when the dents on P.’s car had been repaired, or whether or not the windscreen had been broken. It concluded that the injuries had been caused to the applicant by P.’s carelessness, but not deliberately. The court sentenced P. to eighteen months’ imprisonment, although again he was not required to serve his sentence owing to the expiry of the statutory limitation period for crimes of a less serious nature. The court awarded the applicant RUB 50,000 in respect of nonpecuniary damage. As to compensation for pecuniary damage, the court referred the case to a civil court. The Sholokhovskiy District Court specified that although the applicant had produced contracts, receipts and other documents to support his claim for pecuniary damages, he had failed to explain the amounts claimed and the court was therefore unable to make a precise calculation. 62. Both parties appealed. 63. On 31 May 2005 the Rostov Regional Court amended the decision of the first-instance court. Confirming its conclusions as to the facts of the case and their legal classification, the court decided that P. could not be held guilty, owing to the expiry of the statutory limitation period. As a result, the judgment of the first-instance court was quashed in its entirety and the proceedings discontinued. The Rostov Regional Court’s judgment did not make reference to the civil award made by the first-instance court. 64. On an unspecified date the applicant brought civil proceedings against P. claiming compensation for health damage, moral suffering, loss of earning capacity and the inability to live a normal life. The applicant’s relatives also lodged separate claims within the same proceedings. The applicant claimed compensation of RUB 1,118,307 for past medical expenses, 6,000 United States dollars (USD) for a year’s loss of earnings, 100,000 euros (EUR) for future surgery and medical expenses, and EUR 2,000 a month for health damage. In addition, he claimed USD 100,000 in respect of non-pecuniary damage. 65. On 8 August 2005 the Sholokhovskiy District Court, at the applicant’s request, ordered that the car belonging to P. be temporarily seized. 66. On 10 August 2005 the Sholokhovskiy District Court allowed the applicant’s claims in part. 67. On 10 October 2005 the Rostov Regional Court quashed that decision and remitted the case for fresh examination. 68. Since all the judges working in the Sholokhovskiy District Court had participated in the earlier proceedings, the case was transferred to a court in an adjacent district, the Verkhnedonskoy District Court, situated 50 kilometres from the applicant’s village. The applicant, who was a wheelchair user at the time, objected without success. 69. In those proceedings the plaintiffs (the applicant and his relatives) amended their claims. In particular, they claimed that damages should be paid by the State, because P. had been a police officer at the time of the events. 70. The applicant formulated his claims in respect of pecuniary damage as follows. The accident and resulting injuries had deprived him of the ability to work. Although the applicant, who was a qualified naval operator mechanic, had had no actual work at the time, he had been promised an offer of employment overseas on a cargo ship, and had been on a waiting list for a job. If he had accepted that job, his salary would have amounted to USD 2,500 per month. Consequently, he asked to be compensated the three years’ salary he would have earned but for the accident (USD 82,500). Further, he asked for reimbursement of various medical expenses, including several operations and consultations in Rostov and Moscow, and legal costs related to his participation in the proceedings against P. (RUB 1,031,120). He also claimed reimbursement of his expenses related to a special diet he had to follow, and the personal assistance he had required during his periods of complete disability. Lastly, the applicant claimed that he still needed further surgery, which could only be done at a clinic in Germany because he had developed several brain cysts as a result of the previous operations (EUR 200,000). Lastly, he claimed compensation for his expenses for having to retrain in another field, which would enable him to work again (RUB 970,000). 71. As to non-pecuniary damages, the applicant claimed RUB 4,320,000 under this head, referring mostly to the same facts and the suffering caused by the accident, the subsequent surgery, his participation in the proceedings, and lost opportunities related to his disability. 72. The representative of the State claimed that the State could not be held responsible for the accident. In their words, liability would arise when two conditions were met: if the damage was caused in the course of realisation of the State’s public functions, and if the State’s acts were unlawful. Where damage was caused in the context of an economic activity, it should be compensated in the ordinary way, by the immediate wrongdoer. P. had injured the applicant while driving his own car, and had not been on duty at the time. He had therefore had to be the defendant in the civil proceedings, not the State. 73. On an unspecified date the court obtained (through the applicant or otherwise) a letter from an employment assistance agency, Panigo, dated 28 March 2003. It said that the agency had an opening for the applicant on an overseas voyage on a six-month contract basis, with a salary of USD 2,500. A letter from another shipping company, Valmars Ltd, which had the applicant’s name on a waiting list for an offer of employment at the time of the accident, said that he could have earned USD 550 working as an operator mechanic on a ship in 2003. It also indicated that on overseas voyages on foreign ships, the pay of operator mechanics varied between USD 700 and 2,300. 74. On 5 June 2006 the Verkhnedonskoy District Court gave judgment in the civil case. The court’s findings of fact were almost identical to the findings of the criminal court. It concluded that P. had been fully responsible for the injuries caused to the applicant. As to the amount of pecuniary damages, the court noted that the applicant had only been on a waiting list for future employment and had not received an actual job offer. At the time of the accident he had been unemployed. Moreover, it could be seen from the material in the case file that he could not have obtained a job as a naval operator mechanic on overseas voyages in 2002 owing to a lack of previous work experience and his poor English. Furthermore, the applicant had a chronic kidney problem, which would have prevented him from going overseas. As a result, the court calculated the applicant’s loss of earnings as five times the minimum wage and took into consideration the “minimum subsistence level” which existed at the relevant time in the area where the applicant lived. The resulting amount for loss of earnings for the period under consideration was RUB 117,645 (approximately EUR 3,415). The court also ordered that the defendant pay him RUB 2,690 (approximately EUR 80) every month until the next expert examination of his health. The court also partially satisfied the applicant’s claims concerning the reimbursement of his medical expenses (RUB 5,321) and his and his father’s travel expenses connected to consultations in Moscow clinics (RUB 4,070) and the cost of those consultations (RUB 23,265). The part of the applicant’s claim related to his special diet, treatments, legal and postal expenses and so forth were dismissed by the court as unnecessary, unsubstantiated, or not actually incurred. In particular, the court held that further treatment in Germany had not been proven necessary by the plaintiff. 75. The court ordered P. to pay non-pecuniary damages, dismissing the claims against the State. The court fixed the amount of compensation referring to, inter alia, the defendant’s financial situation, at RUB 50,000 (approximately EUR 1,460). The overall amount to be recovered from P. was RUB 200,301 (approximately EUR 5,850). The court dismissed the claims of the applicant’s relatives as unsubstantiated. 76. The applicant lodged an appeal, but it appears to have been dismissed by the Rostov Regional Court on 12 July 2006. 77. The amount of compensation awarded by the Verkhnedonskoy District Court was paid in full by 2008. 78. According to the applicant, during the trial P. made repeated death threats towards him and other members of his family. As a result of that stressful situation, the health of some his relatives worsened and they have since died. The applicant asked the prosecutor to initiate criminal proceedings against P. in respect of the death threats but his request was refused for lack of evidence. The applicant tried to challenge the refusals in the courts but to no avail. 79. The applicant also sought to initiate a criminal investigation into the alleged falsification of the results of the blood tests by M. However, the prosecutor decided not to open a case, a decision which was upheld by the courts. 80. The applicant tried to initiate a criminal investigation into the actions of the surgeon Dr Zh., but the investigator did not find any grounds on which to prosecute him. | 1 |
test | 001-183568 | ENG | RUS | COMMITTEE | 2,018 | CASE OF SKRIPNIKOV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Alena Poláčková;Dmitry Dedov | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement of domestic decisions and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-149199 | ENG | POL | COMMITTEE | 2,015 | CASE OF TOMCZYK v. POLAND | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Krzysztof Wojtyczek;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1979 and is currently detained in Łódź Remand Centre. 6. On 25 September 2006 the Łódź District Court (Sąd Rejonowy) ordered the applicant’s detention on remand for a period of three months. He was charged with a number of offences committed with an armed organised criminal group. 7. In its decision, the District Court relied on a reasonable suspicion that the applicant had committed the offences in question. The court further emphasised the gravity of the offences in question, the applicant’s active role in the criminal group and the likelihood of a heavy prison sentence being imposed on him after conviction. In the domestic court’s view the fact that the applicant was at the time detained pending other criminal proceedings against him did not guarantee the proper course of the proceedings since the applicant could had been released at any time from the pre-trial detention without the relevant authorities, responsible for the impugned proceedings, being notified. Moreover, the necessity to obtain further evidence justified remanding the applicant in custody. 8. The applicant’s appeal against the decision of 24 September 2006 was dismissed by the Łódź Regional Court (Sąd Okręgowy) on 25 October 2006. The court emphasised that the applicant’s detention on remand was necessary even though at the relevant time he was in any event detained pending another set of criminal proceedings against him. 9. On 19 December 2006 and 26 June 2007 the Łódź Regional Court extended the applicant’s pre-trial detention. Subsequently, the Łódź Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention on 19 September 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008. 10. On 18 March 2009 the State Prosecutor (Prokurator Krajowy) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of extortion and robbery committed in an organised and armed criminal group and with participation in an organised and armed criminal group. The bill of indictment comprised 94 charges brought against 28 defendants. The prosecution authorities requested that 318 witnesses be heard before the court. 11. On 30 March 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre-trial detention, all in vain. In their decisions the courts repeated the grounds previously given for the applicant’s detention. 12. On 3 April 2009 the applicant’s lawyer lodged an appeal against one of the decisions extending the applicant’s detention. The lawyer argued that the reasons for continued pre-trial detention ceased to exist since the applicant had started serving a seven years’ prison sentence imposed by the Łódź District Court in the case no. IV K 239/06. 13. Meanwhile, the court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place. 14. The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the co-accused and due to problems with sound system in the court room. 15. In May 2010 the Regional Court gave a severance order and decided to determine charges against two co-accused separately. 16. The bill of indictment was finally read out to the defendants at the hearing held on 27 May 2010. 17. At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. One hearing was adjourned because of the motion for disqualification of the presiding judge lodged by one of the co-accused. 18. In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges. 19. Meanwhile, on 13 September 2011 the Łódź Regional Court lodged a motion with the Łódź Court of Appeal to extend the applicant’s pre-trial detention. On 28 September 2011 the Łódź Court of Appeal dismissed the lower court’s motion. Consequently, the applicant’s pre-trial detention was lifted on 30 September 2011. 20. The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from wit nesses. Of the fourteen hearings cancelled this year, two were adjourned because of a sick-leave of the presiding judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties. 21. Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants. 22. The criminal proceedings against the applicant are still pending before the first-instance court. 23. On 27 April 2011 the applicant lodged a complaint with the Łódź Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and 20,000 Polish zlotys (PLN) in compensation. 24. On 27 July 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The court found that, considering the complexity of the case and the number of co-accused who had actively tried to obstruct the proceedings, the Łódź Regional Court had conducted the proceedings in a correct and timely manner. Consequently, the appellate court refused to award the applicant compensation. | 1 |
test | 001-182213 | ENG | RUS | CHAMBER | 2,018 | CASE OF LEONOV v. RUSSIA | 4 | No violation of Article 8 - Right to respect for private and family life (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) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 5. The applicant was born in 1983 and lives in Moscow. 6. On 21 August 2007 the applicant’s wife, Ch., gave birth to a son, A. 7. The family lived at the applicant’s flat, where A. had his registered residence. He received ongoing paediatric care at the neighbourhood children’s clinic and attended a neighbourhood nursery school. 8. In November 2009 Ch. decided to leave the applicant. She moved back to her parents’ residence and took A. with her. A. has been living with her ever since. 9. On 9 March 2010 the applicant applied to the Justice of the Peace of the 339th Court Circuit of the Vostochnoe Dergunino District of Moscow for a residence order under which A. would live with him. He was instructed to make corrections to his claim, which he did on 8 April 2010. On the same day the case was transferred to the Timiryazevskiy District Court of Moscow. It registered the case on 26 April 2010 and scheduled the first hearing for 13 May 2010. 10. On 26 April 2010 Ch. lodged a counterclaim, asking for a residence order under which A. would live with her, and for an interim measure pending the proceedings. She claimed, in particular, that there was a risk that the applicant might kidnap A. and take him to Belarus, where his stepfather had a house. She stated that he had already tried to take A. away from her and had in particular attempted to pick him up from the boy’s nursery school. 11. On the same day, 26 April 2010, the Timiryazevskiy District Court allowed Ch.’s request for an interim measure and forbade the applicant from contacting A. or picking him up from the nursery school without Ch.’s prior permission. It held as follows: “The subject matter of the case is the residence of a child [A.] born in 2007. The parents have been unable to come to an agreement on this matter. The child is now living with his mother [Ch.]. The court therefore considers that the requested interim measure would be proportionate to the claim. Otherwise, failure to take interim measures might complicate or make impossible the execution of the forthcoming judgment.” 12. The applicant learned of the interim measure on 30 April 2010. On that day he came to visit A. at the nursery school and the teachers refused to let him see the boy, citing the interim order. 13. In April and May 2010 the Lyublino and Dergunino childcare authorities examined the applicant’s and Ch.’s flats and found their living conditions satisfactory and suitable for a small child. 14. The first hearing was scheduled for 20 May 2010 but it was adjourned until 24 May 2010 at the applicant’s request. The next hearing was scheduled for 9 June 2010 but it was also adjourned until 23 June 2010 for the purposes of “obtaining evidence”. 15. On 22 June 2010 the Lyublino childcare authority issued its report on the case. It considered that, by reason of his very young age, A. should reside with his mother. The childcare authority considered that it was particularly important for a child to be raised by the mother until the age of five or six. A lack of maternal care during that period, and in particular during the behavioural crises that a three-year-old typically undergoes, could result in the child developing negative character traits, such as stubbornness, surliness, hysterical reactions and inadequate social adaptation. The residence arrangements could be reconsidered after A. had reached the age of five or six years. 16. On 29 June 2010 the Timiryazevskiy District Court ordered an expert psychological examination and adjourned the proceedings. The experts were asked their opinion on what residence arrangements would be in A.’s best interests. 17. On 6 July 2010 the applicant lodged an appeal with the Moscow City Court against the decision of 29 June 2010 ordering an expert examination. The appeal hearing was scheduled for 29 July 2010 but was adjourned until 17 August 2010 because the parties did not appear. On 17 August 2010 the Moscow City Court upheld on appeal the decision of 29 June 2010. The case file was sent to the experts on 8 September 2010. 18. Meanwhile, as Ch. had prevented him from seeing A., the applicant applied to the childcare authority for a contact order. On 15 July 2010 the childcare authority rejected the application, referring to the interim measure imposed by the Timiryazevskiy District Court. 19. On 9 August 2010 the District Court received by post the applicant’s appeal, dated 6 May 2010, against the decision of 26 April 2010 ordering the interim measure. The applicant submitted that there had been no justification for the interim measure, which had been motivated solely by the prevailing belief that a child should be raised by the mother rather than the father. He further submitted that the interim measure was contrary to A.’s best interests. A lack of contact with his father and the paternal family – A.’s grandparents, uncle, aunt and cousins – to whom he was very attached might cause A. psychological trauma. It might, moreover, result in A.’s estrangement from his father or, given his very young age, even his forgetting his father altogether. It also created a risk that Ch. might turn A. against his father. It might in turn mean that the results of any future expert examinations – and, by extension, any future judicial decision on the child’s residence – would be biased against the applicant. Lastly, the applicant submitted that the interim measure breached his right to maintain contact with his son. 20. On 17 September 2010 the Justice of the Peace of the 133th Court Circuit of the Mytichshinskiy District of the Moscow Region convicted Ch. of assault and battery, a criminal offence under Article 116 of the Criminal Code. In particular, the court found it established that on 20 June 2010 the applicant had approached Ch. and A. while they were playing at the local public beach and had hugged his son. Ch. had immediately snatched the boy away from him and had hit the applicant at least two times, causing him bodily injuries, before carrying the boy away. A fine was imposed on her. 21. On 11 November 2010 the experts issued their report. They found that it would be beneficial for A. to maintain contact with both parents. He was equally attached to both of them. Both parents were equally capable of raising the child. The serious conflict currently persisting between the parents could negatively affect A.’s psychological development. 22. On 12 November 2010 the proceedings were resumed. Hearings were scheduled for 24 November and 7 December 2010 but could not take place because some of the participants did not appear. 23. On 23 December 2010 the Dergunino childcare authority issued its report on the case. It found that A. should reside with his mother, referring to A.’s young age and the fact that he had lived with his mother for some time already and was attending a neighbouring nursery school. 24. During the hearing of 24 December 2010 the applicant lodged an objection against the judge of the Timiryazevskiy District Court, submitting that she (that is to say the judge) had stated on several occasions that she would rule against the applicant because according to the established practice of the Timiryazevskiy District Court a residence order was always made in favour of the mother. The judge dismissed the applicant’s objection. 25. On 18 January 2011 the Timiryazevskiy District Court allowed a request lodged by the applicant for the proceedings to be stayed; it accordingly stayed the residence order proceedings pending the criminal proceedings against Ch. 26. On 26 January 2011 the Mytishchi City Court upheld Ch.’s criminal conviction on appeal. The conviction acquired binding force. 27. On 8 February 2011 the Moscow City Court quashed on appeal the decision of 26 April 2010 ordering the interim measure. It found that the interim measure had been unconnected to the subject matter of the case and had therefore been disproportionate. There had been no evidence that the execution of the forthcoming judgment might be complicated or impossible. By applying the interim measure, the judge had prejudged the case. The City Court remitted Ch.’s request for an interim measure for fresh examination by the Timiryazevskiy District Court, which rejected it on 1 April 2011 as unsubstantiated. 28. Meanwhile, on 16 March 2011 the childcare authority instructed Ch. that she should stop preventing A. from seeing his paternal family. 29. On 30 March 2011 the Timiryazevskiy District Court granted the divorce of the applicant and Ch. 30. On 7 April 2011 the Moscow City Court, acting by way of supervisory review, quashed the judgment of 26 January 2011 upholding Ch.’s conviction and remitted the criminal case for fresh examination by the appellate court. 31. On 12 April 2011 the Timiryazevskiy District Court resumed the residence order proceedings and held a hearing. 32. During the hearings the applicant stated that he possessed a comfortable flat in a safe and ecologically clean neighbourhood, with parks and schools in the vicinity. Before the applicant’s separation from his former wife, A. had attended a nursery school in that neighbourhood. The applicant also had a countryside residence. Being the owner of his own business, he had flexible working hours and could therefore devote a lot of time to his son. He had always paid child maintenance and his income permitted him to give the child a good education. There was a strong personal attachment between the applicant and his son; A. was also very attached to his paternal family – especially his cousin, who was of the same age. The applicant had positive character references: he was calm, polite and affectionate towards his son. By contrast, Ch. was aggressive and irresponsible. She had physically assaulted him in front of A. and had been criminally convicted in connection with that incident. She had also been convicted of the administrative offence of leaving the scene of a road accident and had had her driving licence suspended for a year. As could be seen from the documents submitted by the applicant to the court, she lived in a severely polluted and criminally unsafe neighbourhood in the vicinity of an oil refinery plant and a prison. Moreover, Ch. shared her flat with her mother, who smoked and abused alcohol and could therefore have a bad influence on A. Until recently, Ch. had prevented the applicant and his relatives from seeing A., and currently she allowed occasional contact only. 33. The applicant’s mother and sister stated that Ch. prevented them from seeing A. Ch. was often aggressive and occasionally abused alcohol. All her family smoked, even in the child’s presence. A. was very attached to his father and obviously suffered from their forced separation. 34. Ch. stated that the applicant would have no time to take care of the child as he was managing a business, was following a distance-learning course at a university and had earlier stated his intention of building a countryside residence. Ch. had a higher education and was working. The alleged defects in her character and behaviour to which the applicant had referred had been confirmed by his relatives only. 35. A teacher from A.’s current nursery school stated that she had seen the applicant once and that he had made a bad impression on her. On 30 April 2010 he had come to the nursery school and had told her that he wanted to take A. home with him. When she had refused to let him in, referring to the court order prohibiting any contact between them, he had become agitated and had talked about taking A. away with him when the children went out for a walk. 36. The director of the nursery school gave a similar description of the incident. She said that the applicant had become angry when he had learned of the court decision ordering the interim measure, had asked for a copy of that measure and had called his lawyer. 37. The following documents were submitted by the parties for the court’s examination: (i) the applicant’s and Ch.’s pay statements, (ii) documents showing that the district where Ch. lived was among the most polluted districts of Moscow, (iii) documents from the criminal case file against Ch., and (iv) documents relating to A.’s medical history and A.’s pre-school education both at the applicant’s place of residence prior to his parents’ separation and at the mother’s place of residence after the separation. 38. On 12 April 2011 the Timiryazevskiy District Court granted Ch.’s application for a residence order in her favour and dismissed a similar application by the applicant. It held as follows: “Having examined the entirety of the evidence, the court finds that there is a very serious conflict between the parties as regards the child’s residence arrangements, ... which has a negative impact on the child by creating a psychologically unhealthy and tense atmosphere around him. At the same time, each parent, taken alone, possesses moral, personal and other qualities rendering each of them capable of raising a small child. According to the expert report, the child is equally attached to both of them. It also follows from the expert report that the parents’ improper behaviour towards each other may have negative psychological consequences for the child. The court notes that [Ch.’s] criminal conviction for assaulting [the applicant] has not yet acquired binding force. It however takes into account the criminal charges brought against her. It is clear that the incident was prompted by the personal hostility [between the applicant and Ch.] caused by a disagreement on the issue of their son’s residence and education. In the court’s opinion, these charges cannot constitute a decisive reason for making a residence order in favour of the father. There is an accumulation of reasons on the basis of which the court considers that the child should live with the mother. In the present case the court is guided by the best interests of child [A.], who at the moment of the judgment has not yet reached the age of four years old and who has an established way of life. For a long time the child has lived with his mother at her place of residence and has attended a nursery school there. Given his age, a change of residence and a separation from the mother will have a negative impact on the child’s general and psychological state. The court considers that [the applicant’s] arguments that the district where [Ch.] lives is polluted and that close members of her family smoke cannot serve as a basis for making a residence order in favour of the father because, as mentioned above, a change of residence will have a negative impact on the child. [The applicant’s] arguments that he has better living conditions and a better financial situation than [Ch.] are not decisive for granting a residence order to the father either. The childcare authorities are unanimous that it is in [A.’s] interests to live with the mother. The court agrees with that finding. The court also finds that [the applicant’s] request for a residence order is at the moment premature. [The applicant] is entitled to apply for a reconsideration of the issue after A. has reached a more conscious age [по достижению сыном более сознательного возраста].” 39. The applicant appealed, repeating the arguments he had raised before the District Court. He relied, in particular, on the right to equality between spouses. 40. On 30 June 2011 the Moscow City Court upheld the judgment of 12 April 2011 on appeal, finding that it had been lawful, well-reasoned and justified. 41. On 6 December 2011 the Lyublinskiy District Court of Moscow found it established that Ch. was preventing the applicant and his family –namely his mother, brother and sister – from seeing A. It held that A. was entitled to maintain contact with his father and his paternal family and determined the contact schedule as follows. The applicant should be able to have contact with A. (i) on the first and third weekend of each month from 10 a.m. on Saturday until 8 p.m. on Sunday at the applicant’s place of residence, in the mother’s absence and with the right to attend outdoor activities for children, and (ii) for two weeks during the summer and two weeks during the winter on dates agreed with the mother, provided that the child is in good health, with the right to leave Moscow and to go abroad. The applicant’s mother, brother and sister should be able to have contact sessions with A. from 11 a.m. until 1 p.m. on the first and third Saturdays of each month at the applicant’s place of residence. 42. On an unspecified date the Moscow City Court upheld that judgment on appeal. 43. On 2 February 2012 the Mytischy Town Court upheld Ch.’s conviction for assault and battery on appeal. | 0 |
test | 001-147817 | ENG | POL | ADMISSIBILITY | 2,014 | HÖSL-DAUM AND OTHERS v. POLAND | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicants, Mr Jürgen Hösl-Daum, Mr Stephan Roth and Mr Robert Göpfert, are German nationals who were born in 1978, 1980 and 1982 respectively and live in Brüggen, Oybin and Zittau. They were represented before the Court by Mr S. Böhmer, a lawyer practising in Erlangen. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants arrived in Poland on 20 July 2004. During the night of 20 to 21 July 2004 they put up posters, described below, at bus stops and poster pillars in Bolesławiec, a town near the border between Poland and Germany. On 22 July 2004 the applicants were arrested by the police when taking photographs of the places where they had put up the posters. 3. There were two posters of A3 format with text in German and a number of graphic photographs of unknown origin depicting, inter alia, mass graves, massacred bodies and a group of people in an open train carriage. 4. The first poster read, inter alia, as follows: “The Poles and the Czechs – a heartfelt welcome to the EU! Our justice system is working diligently, because murder is not subject to statutory limitation. Documents [concerning] Polish and Czech atrocities on the Germans “From the land of the dead” A Jewish émigré and a native Berliner – Robert Jungk – later a famous author and a critic of technologies (“Brighter than a Thousand Suns”), even before the so-called “regular” expulsion had begun, published in the Zurich “Weltwoche” a report about the conditions prevailing in the eastern regions of Germany occupied by the Poles based on his own experience. His report was entitled “From the land of the dead”. We quote some passages: “Whoever leaves the Polish zone and reaches the territory occupied by the Russians can immediately breathe again. He leaves behind totally looted towns, plague-stricken villages, concentration camps, barren fields, streets full of corpses, in which thieves lurk, and rob the expellees of their last belongings ... It is true that on a public square in town G. girls, women and old women were raped by relatives of the Polish militia. It is true that at the railway station in S. all trains transporting refugees were systematically looted to such an extent that the people in them had to travel west naked. It is true that in the heart of Silesia not one child under one year of age is still alive, because all of them have died of hunger or been killed. It is true that in Upper Silesia women suffering from syphilis (who were earlier raped – editor) received as a “therapy” a shot in the head. It is true that there has been a wave of suicides in the country, in some towns one-twelfth and in some even one-tenth of the population have taken their lives. It is true that in the so-called labour camps in C. and S. prisoners are made to spend the whole night up to their necks in icy water and that they are beaten until they lose consciousness.” Was the year 1945 a liberation? Mass deaths in the foreign extermination camps After the end of the war 7 million Germans were robbed, expelled, raped, attacked and murdered [...] More Germans died in Poland and on the territories occupied by the Poles in 1,255 camps than those who died in transit following expulsion. In the Lamsdorf camp in Upper Silesia, of the 8,000 [people] held there 6,048 died. In the other labour camps in Upper Silesia unspeakable cruelty reigned too. It was common practice in the different camps to shoot, as planned in advance, those who were too old, unable to work or ill. [...] The forced labour and suffering in a camp cannot be compensated with money, regardless of the amount. What is necessary is awareness of those crimes in the countries where the atrocities occurred. What is also necessary is that the surviving responsible parties be judged. As for that, there is total silence surrounding the issue of the German victims.” 5. The second poster contained, inter alia, the following passages: “Documents on Polish and Czech atrocities ... Are our EU-friends avoiding a new evaluation of their history?? 15,000,000 Germans were robbed and expropriated, hundreds of thousands were sent to concentration camps and to forced labour ... 3,500,000 Germans were killed ... Where there is no accuser, there is no judge ... there were only Germans ... Second-class people?? [...] Overall 11 million Germans died, including 7 million after the end of the war. A peaceful Europe may exist only on the foundation of law and truth. The restitution of houses and plots of land expropriated against the law of nations should be a given in the now democratic Poland and Czech Republic.” 6. On 28 December 2004 the prosecution filed a bill of indictment against the applicants with the Jelenia Góra Regional Court. They were charged with the commission of two offences: publicly insulting the Polish nation (Article 133 of the Criminal Code) and incitement to hatred based on national differences (Article 256 of the Criminal Code). It was alleged that between May and July 2004 the applicants had put up no less than thirtytwo posters at bus stops and on poster pillars in towns close to the Polish-German border. According to the prosecution, the posters contained untrue statements about alleged mass crimes committed by Poles against the German civilian population during and after the Second World War and graphic photographs of unknown origin. Furthermore, the applicants had created tension between the Polish and German nations on account of their demand for land and property left by the German population on Polish territory to be returned. 7. On 7 February 2005 the Jelenia Góra Regional Court decided that it did not have jurisdiction to examine the applicants’ case and transferred it to the Jelenia Góra District Court. It found that the acts imputed to the applicants were to be considered administrative offences against public order. The prosecution appealed against that decision. On 25 February 2005 the Wrocław Court of Appeal quashed the decision and remitted the case to the Regional Court. It held that the Regional Court could not review the soundness of the prosecution’s legal classification of the alleged offences at the preliminary stage of the proceedings to determine jurisdiction. 8. On 12 May 2005 the Regional Court gave judgment. It held that the applicants had committed the impugned offences and decided to suspend the criminal proceedings against them for a two-year probation period. Each applicant was ordered to pay 2,000 Polish zlotys (PLN) to a children’s home. 9. The Regional Prosecutor appealed against the judgment. She argued, inter alia, that the Regional Court had erred in finding that the degree of guilt and social danger of the acts imputed to the applicants had been negligible. On 14 September 2005 the Wrocław Court of Appeal quashed the Regional Court’s judgment and remitted the case. 10. On 7 April 2006 the Regional Court gave judgment. The applicants were convicted of insulting the Polish nation and inciting hatred between the Polish and the German nations in that on 20 July and on the night of 20 to 21 July 2004 in Bolesławiec they had put up in public places posters containing untrue statements about alleged mass crimes committed by the Poles against the German civilian population during and after the Second World War and containing graphic photographs of unknown origin; they had further created tension between the two nations by demanding the return of land and property left by the German population on Polish territory. They were also convicted of attempting to put up other similar posters. 11. The Regional Court sentenced the first applicant to ten months’ imprisonment and the two remaining applicants to eight months’ imprisonment. It conditionally suspended the prison sentences for a threeyear probationary period. 12. The court based its findings on an opinion prepared by three professors from the law, history and sociology departments of Wrocław University. Two of the experts were also members of the Commission for the Examination of Nazi Crimes in Poland. 13. The Regional Court, having regard to the collected evidence, found the applicants guilty of publicly insulting the Polish nation and of inciting national hatred. It found, in so far as relevant: “The offence specified in Article 133 of the Criminal Code is committed, inter alia, by a person who publicly insults the Polish nation. The interpretation of the term “insult” can be made on the basis of the system of values existing in a given society, whereas the meaning of this word should reflect the meaning attributed to it in ordinary language. To insult is to offend somebody or something by word or act. ... It is an act which consists of showing contempt, damaging respect or reputation. The term “insult” belongs to the category of value judgments and can have various meanings. It is accepted that the interpretation of this term should be made on the basis of criteria which are as objective as possible and of commonly accepted values. An insult amounts to an expression of contempt, humiliation and affront. (...) The offence specified in Article 256 of the Criminal Code is committed, inter alia, by a person who publicly incites hatred on the basis of national differences. Such act consists in sowing the seeds of dislike and hostility ....” 14. With regard to the applicants’ motives, the court noted that they claimed to have put up posters in Bolesławiec with a view to informing the Polish public about the massacres of the German population during the period of its expulsion. It did not accept that claim as credible and held as follows: “The posters contain many untruths concerning the Poles. It transpires from the expert opinion that the information with regard to the death rate among the Germans and to the deportations were deliberately presented in a chaotic manner – without making a distinction as to whether they took place under the Polish or Russian administration, or on the territory of Czechoslovakia – and were presented in such a way as to give grounds for accusation mainly against the Poles. The numbers cited on the posters were taken from some biased anti-Polish political pamphlets. The information quoted from the article by R. Jungk about the situation prevailing on the territories transferred to Polish administration following the undertakings of the Potsdam Conference is untrue –information about the real perpetrators of, inter alia, the ordinary criminal acts was deliberately omitted. The information about Germans held in concentration camps in Poland after the end of the war is also untrue, since such camps did not exist, and the photographs on the posters have no documentary value and it is impossible to identify them. The experts clearly affirmed in their opinion that the contents of the posters are untrue and are not supported by the research of Polish and German historians. It is of particular importance that the accused were previously sentenced in Poland for the commission of an administrative offence under Article 63a § 1 of the Code of Administrative Offences, which consisted of putting up about one hundred crosses with the inscription ‘The Germans 1945-46’. This act of the accused had significant social repercussions, and the fact that they were sentenced indicates that they had to be aware of the legal and social consequences of putting up the posters. The accused insulted the Polish nation by putting up the posters. The untruths included in the posters insult the Polish nation, since imputing to the Poles the alleged crimes – which are not scientifically proved – is an affront to the Polish nation. This interpretation of the posters is based, among other things, on the assessment of their contents by third persons and on the reactions of the people who saw the posters.” 15. The trial court further held: “The contents of the posters may obviously arouse feelings of unrest, dislike or antagonism between the Polish and German nations. The emphasis in the posters on the alleged Polish crimes, and the inclusion of groundless demands for the return of houses and land left by the German population on Polish territory, may presently revive or arouse antagonism on the part of the Germans towards the Poles. In accordance with the expert opinion the inclusion in one of the posters of a photograph of a skull was solely aimed at stirring up hatred. ... 16. With regard to the sentence, the court had regard to the applicants’ previous conviction by a judgment of the Wrocław-Śródmieście District Court of 9 May 2003 for an administrative offence specified in Article 63a § 1 of the Code of Administrative Offences. 17. The applicants filed an appeal. Firstly, they alleged that the court had committed a number of procedural errors. They claimed, inter alia, that when considering whether the offence of insulting the Polish nation had been committed, the trial court had blindly followed the expert opinion prepared by historians and failed to properly consider the matter itself and to examine the contents of the posters. Furthermore, the court had wrongly assumed that inclusion in the poster of inaccurate data related to historical events had implied that the content was insulting and incited hatred. 18. The applicants contested the trial court’s refusal to admit certain evidence and alleged that it had arbitrarily assessed the evidence. In particular, they challenged its refusal to admit a second expert opinion alleging that the first one had been contradictory. In their view, the trial court had erred in considering that the contents of the posters was capable of stirring up unrest, dislike and antagonism and that they had acted with the intention of insulting the Polish nation and inciting hatred. 19. They averred that the exaggerated manner of their expression concerning the relations between the Poles and the Germans had been exclusively aimed at prompting a discussion about their relations with a view to reconciliation, and could not be considered in any way as an insult. In this connection, they claimed that the posters contained some true historical information and some which was the subject of historical dispute. 20. With regard to the alleged insult to the Polish nation, they argued that the trial court had failed to distinguish between statements which were unfavourable to the Polish nation and those which were insulting. Furthermore, Article 133 of the Criminal Code should have been construed narrowly in a modern State based on the rule of law and could not be used as a tool to protect one interpretation of history. 21. On 30 August 2006 the Wrocław Court of Appeal dismissed the applicants’ appeal and upheld the first-instance judgment. 22. The Court of Appeal found that the trial court had committed no errors of procedure. The evidence collected in the case had been comprehensive and sufficient to examine the case and there was no need to admit the evidence proposed by the applicants. 23. The Court of Appeal noted that it had been necessary to examine the applicants’ actions in the historical context of the Second World War and the period following it. To this end the court had ordered the preparation of an opinion by professors from Wrocław University. They had been asked to consider the content of the posters and had stated that: “the contents of the posters were entirely untrue and contained false information about the situation prevailing on the territories transferred to Polish administration following the undertakings of the Potsdam Conference. The posters also contained untrue information about German losses which did not correspond to the results of research carried out by Polish and German historians”. 24. The Court of Appeal dismissed the applicants’ arguments that the opinion had been incomplete and contradictory. It also rejected their view that the experts had not been in a position to assess whether the contents of the posters had been insulting to the Polish nation or had incited national hatred. The Court of Appeal noted that in historical studies there could be certain differences of opinion as regards, for example, the extent of German losses after the end of the war. The experts had, however, considered this issue, referring to the results of Polish-German research. Furthermore, it observed that although the human tragedies experienced by the Germans, occasioned by their expulsion in particular, could not be disregarded, those events could not be detached from the historical context, namely, the reasons for and the consequences of the Second World War, including the undertakings of the Potsdam Conference. 25. Article 14 provides as follows: “The Republic of Poland shall ensure freedom of the press and other means of social communication.” 26. Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides: “Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 27. Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant: “The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.” 28. Article 42 § 1 of the Constitution reads: “Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof, and which is subject to a penalty, shall be held criminally responsible. This principle shall not prevent punishment of any act which, at the moment of its commission, constituted an offence within the meaning of international law.” 29. Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” 30. Article 190 of the Constitution, insofar as relevant provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ... 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.” 31. Article 133 of the Criminal Code provides as follows: “Anyone who insults the Nation or the Republic of Poland in public shall be subject to deprivation of liberty for up to three years.” 32. Article 256 of the Criminal Code read, at the material time, as follows: “Anyone who publicly promotes a fascist or other totalitarian system of state or incites hatred based on national, ethnic, racial or religious differences or for reason of lack of any religious denomination shall be subject to a fine, restriction of liberty or deprivation of liberty for up to two years.” 33. Article 540 § 2 of the Code of Criminal Procedure provides for reopening of the proceedings following a judgment of the Constitutional Court. It reads as follows: “The proceedings shall be reopened to the benefit of the accused when as a result of the Constitutional Court’s judgment a provision of law which served as the basis for conviction or conditional discontinuation [of the proceedings] was abolished or amended.” | 0 |
test | 001-176763 | ENG | TUR | CHAMBER | 2,017 | CASE OF BOZKAYA v. TURKEY | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano | 5. The applicant was born in 1975 and is detained in Kahramanmaraş. 6. On 19 November 2003 the applicant was taken into police custody on suspicion of membership of an illegal organisation, namely the PKK/KADEK (Workers’ Party of Kurdistan/Kurdistan Freedom and Democracy Congress). It appears that at some point the applicant confessed to committing an armed attack on a prison vehicle in Adana and, as a result, on 21 November 2003 at 3 p.m. was required to participate in a reconstruction of the events (yer gösterme). According to the record drafted by police officers and signed by the applicant, the latter described in detail what steps he had taken before the attack on a prison vehicle in Adana and indicated how he had opened fire on that vehicle. 7. On the same day, he was taken to the Dörtyol police station for questioning. The questioning took place between 8.10 p.m. and 11.50 p.m. the same day and 10 a.m. and 3.45 p.m. the following day. The applicant’s statements to the police were transcribed on pre-printed forms, the relevant part of which was filled in to indicate, inter alia, that the applicant was suspected of membership of an illegal organisation and of carrying out armed activities on behalf of that organisation. On the first page of the forms there was a pre-printed message stating, inter alia, that the person being questioned had the right to remain silent and the right to choose a lawyer. It appears from the form that the applicant had refused legal assistance since the first page of the record includes a pre-printed phrase stating “No lawyer sought” with the applicant’s signature underneath. He was thus questioned in the absence of a lawyer. 8. In his statement, the applicant admitted that he was a member of the PKK/KADEK and that he was active in the organisation. In particular, he gave detailed information about, inter alia, an armed attack on a prison vehicle in Adana. He also stated that his code name was “Hüseyin”. 9. On 23 November 2003 he was brought before the Dörtyol public prosecutor, where he partly confirmed and partly denied the content of his statements to the police made in the absence of a lawyer. Prior to this he had been told his rights, including the right to benefit from the assistance of a lawyer. He further stated that he was a member of the PKK/KADEK and had been involved in some of its activities in northern Iraq but had not taken part in any political or armed activities in Turkey. 10. On the same day, an investigating judge of the Adana State Security Court took statements from the applicant. Prior to the interview, the applicant was informed of his rights under Article 135 of the former Code of Criminal Procedure. He did not ask for a lawyer. During the interview, the applicant stated that his statements made to the police and the public prosecutor had been correct. He maintained, in particular, that his statements made to the police in respect of the armed attack in Adana had been entirely correct. The court ordered the applicant’s pre-trial detention. 11. During the applicant’s period in custody, specifically from 19 to 23 November 2003, he was examined six times by doctors. The medical examinations conducted before and at the end of his custody period revealed no signs of ill-treatment on his body. 12. Prior to the applicant’s arrest, on 27 October 2003, a certain H.K., who was a co-accused, had claimed during questioning that he had organised the armed attack, acting with someone whose code name was “Hüseyin”. Later, at the first court hearing, he retracted his statements to the police, alleging that they had been extracted under duress. 13. On 23 December 2003 the Adana public prosecutor lodged an indictment, charging the applicant with the offence of breaking up the unity of the State and seeking to remove part of the national territory from the State’s control, under Article 125 of the former Criminal Code. 14. On 16 March 2004, at the first hearing in the case, the applicant retracted his statements made to the police, the public prosecutor and the investigating judge, alleging that they had been obtained through coercion and death threats by the police. He admitted that he was a member of the PKK/KADEK while denying involvement in the armed attack in Adana. When asked about the reports of the reconstruction of events, the applicant submitted that he had not accepted the evidence against him. 15. State Security Courts were abolished on 16 June 2004 pursuant to Law no. 5190. The case was therefore transferred to the Adana Assize Court. 16. On 10 February 2005 the applicant’s lawyer applied to the court to have a certain F.Y. summoned as a witness and to hold a confrontation with the applicant, as F.Y. had stated in his witness statements dated 16 October 2003 that he had seen the perpetrators of the attack. He also asked the court to enquire of the banks as to whether there had been any money transferred between the applicant’s father and H.K. The court dismissed the application concerning the attendance of a witness, on the grounds that the witness would not remember the incidents given the long time which had elapsed and that he would not tell the truth owing to the nature of the incident. It further dismissed the other request concerning the transfer of money, considering it not to be essential for the purposes of the case. 17. On 11 December 2005 the applicant sent a letter to the trial court in which he explained the threats and coercion he had been subjected to in detail and asked the court not to take his co-accused’s statements into consideration. 18. On 22 December 2005 the Adana Assize Court convicted the applicant as charged. 19. On 28 December 2005 the applicant’s lawyer appealed against that judgment and alleged, inter alia, that the applicant’s statements had been taken without notifying him of his rights and as a result of coercion and death threats by the police. The applicant’s lawyer gave detailed accounts of such treatment and asked the Court of Cassation not to rely on these statements which had been obtained by impairing the applicant’s will. 20. On 12 October 2006 the Court of Cassation quashed the conviction for procedural shortcomings. 21. At a hearing on 22 June 2007, the applicant’s lawyer once again maintained that the applicant’s confessions had taken by coercion and that the applicant had been forced by the police to sign his statements. He asked the trial court not to rely on those statements. At the same hearing, the first-instance court again convicted the applicant under Article 125 of the Criminal Code then in force, and sentenced him to life imprisonment. It relied, inter alia, on the consistent confessions of the applicant and H.K. made during questioning, which were later repeated before the public prosecutor and the investigating judge, and the record of the reconstruction of events. It also took into account the weapons, bullets and explosives seized by the judicial authorities and the organisational documents as well as the incident report, hotel records, an autopsy and expert reports, photographs, witness statements and investigation reports. The trial court’s reasoned judgment did not contain any pronouncements as regards the admissibility of the applicant’s pre-trial statements. 22. On the same day, the applicant’s lawyer appealed against that judgment and alleged, inter alia, that the applicant’s statements had been taken without notifying him of his rights and as a result of coercion and death threats by the police. The applicant’s lawyer gave detailed accounts of such treatment and asked the Court of Cassation not to rely on these statements which had been obtained by impairing the applicant’s will. 23. On 12 February 2009 the Court of Cassation upheld the conviction. 24. On 18 February 2009 the judgment was pronounced in the absence of the applicant and his lawyer. | 1 |
test | 001-161416 | ENG | AZE | CHAMBER | 2,016 | CASE OF RASUL JAFAROV v. AZERBAIJAN | 2 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 18+5-1-c - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5-1-c - Reasonable suspicion;Article 5 - Right to liberty and security);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary and non-pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction) | André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 5. The applicant was born in 1984 and lives in Baku. 6. The applicant is a well-known civil society activist and human rights defender. He is the Chairman and one of the co-founders of Human Rights Club, a non-governmental organisation (NGO) specialising in the protection of human rights. Human Rights Club was established in December 2010 and has made several unsuccessful attempts to obtain State registration by the Ministry of Justice in order to obtain legal entity status under domestic law. The authorities’ refusal to register Human Rights Club is the subject of another application pending before the Court (see application no. 27309/14). The applicant has collaborated with other NGOs in Azerbaijan on various projects. He is also a member of the Board of Directors of the Republican Alternative Civic Movement (REAL). 7. The applicant has been involved in the preparation of various reports relating to human rights issues in Azerbaijan. He has also been involved in promoting the adoption of a Parliamentary Assembly of the Council of Europe (PACE) report on political prisoners in Azerbaijan, and has been working on a consolidated list of political prisoners to be presented to the Council of Europe. He has been a speaker at Council of Europe and United Nations (UN) events, and has submitted shadow reports to UN institutions. 8. The applicant also coordinated the Sing for Democracy campaign (later renamed Art for Democracy) during and after the Eurovision Song Contest 2012 in Baku, which aimed at drawing attention to human rights violations in Azerbaijan. 9. During the June 2014 session of the PACE the applicant presented a report on human rights violations in Azerbaijan at the Council of Europe. 10. In recent years a number of human rights activists, lawyers, politicians, journalists and other government critics have been arrested and/or charged with various criminal offences. Those arrests generated wide publicity and were condemned by a number of international organisations, NGOs and prominent individuals (see, for example, paragraphs 83-84 below). 11. On 22 April 2014 the Prosecutor General’s Office instituted criminal proceedings under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of NGOs. 12. While the applicant was away in Kyiv from 6 to 11 July 2014 the Sabail District Court ordered a freezing injunction in respect of his bank accounts on 7 July 2014. 13. On 29 July 2014, while travelling by train from Baku to Tbilisi, the applicant was stopped during checks at the Azerbaijani-Georgian border. He was informed that he could not leave the country because a travel ban had been imposed on him on 25 July 2014. 14. On 31 July 2014 the applicant was invited to the Prosecutor General’s Office, where he was questioned as a witness in connection with the above-mentioned criminal proceedings (see paragraph 11 above). 15. On 31 July and 1 August 2014 searches were conducted at Human Rights Club, and a number of documents, mainly related to book-keeping and finance, were seized. 16. On 2 August 2014 the applicant was again invited to the Prosecutor General’s Office for questioning as a witness. On his arrival at the premises he was arrested and formally charged under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code. The description of charges consisted of a single sentence which was one page long. In particular, it was noted that since June 2010 the applicant, as co-founder and Chairman of Human Rights Club, an “organisation lacking State registration”, and as a project manager in an NGO named International Cooperation of Volunteers, had received a number of grants from the United States of America’s National Endowment for Democracy (NED), various branches of the Open Society Institute Assistance Foundation (OSIAF), Norway’s Stiftelsen Fritt Ord and other donor organisations, pursuant to relevant grant agreements. He was accused of acquiring profit, “by paying money to himself and other people involved in the projects in the guise of salaries and service fees” in the amount of 147,900.85 Azerbaijani new manats (AZN), having acquired that money through, “illegal entrepreneurial activity in respect of grants which, as an official, he had failed to register with the relevant executive authority, even though he had a professional obligation to do so”. He was also accused of avoiding payment of taxes under Articles 218, 219 and 220 of the Tax Code in the amount of AZN 6,162.24, thus causing, “significant damage to State interests protected by law, bringing about grave consequences”. 17. On the same day, 2 August 2014, the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s application for the preventive measure of remand in custody, ordered the applicant’s detention for a period of three months. The court justified the decision as follows: “Taking into account the gravity of the criminal offences of which the applicant is accused and the possibility of him disrupting the normal course of the investigation by unlawfully influencing people involved in the proceedings or absconding from the investigation if he remains at liberty, the court considers that the preventive measure of remanding him in custody must be applied in his case.” 18. On 4 August 2014 the Prosecutor General’s Office made a public statement which noted that the applicant had been charged under Articles 192.2.2, 213.1 and 308.2 of the Criminal Code because there was a suspicion that he had committed the criminal offences set out in the abovementioned Articles. 19. On 4 August 2014 the applicant appealed against the detention order. He argued that there was no “reasonable suspicion” that he had committed a criminal offence, and that his detention was a punishment for carrying out activities which were protected by the Constitution. He further argued that the court had failed to provide any relevant reasons as to the applicability of grounds which could justify his detention. In particular, as to the risk of absconding, the applicant pointed out that the factual circumstances indicated that there was no such risk. He submitted that he had cooperated with the investigating authorities from the very beginning by appearing for questioning and producing documents whenever he had been required to do so, and that he had returned to the country from a trip to Kyiv knowing that he was under investigation. As to the risk of disrupting the investigation, the applicant argued that the existence of such a risk had not been substantiated. He argued that, on the contrary, he had given to the authorities originals of all documents which could be relevant to the investigation, and therefore was not in a position to tamper with the evidence. 20. On 8 August 2014 the Baku Court of Appeal upheld the detention order of 2 August 2014 without addressing any of the applicant’s arguments. 21. On 19 August 2014 the applicant applied to the Nasimi District Court, requesting the substitution of remand with either house arrest or release on bail. Among other things, the applicant highlighted the factual circumstances which supported his argument for less restrictive measures, including the fact that he had returned to the country from Kyiv knowing that he was under investigation and had complied with all orders to produce documents and appear for questioning, and that he, as a human rights defender, was a respected public figure with strong ties to the community. 22. On 20 August 2014 the Nasimi District Court rejected his application, finding that the grounds justifying his detention, as specified in its decision of 2 August 2014, “had not ceased to exist”. 23. On 22 August 2014 the applicant appealed, reiterating his arguments in detail. On 28 August 2014 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 20 August 2014. 24. On 23 October 2014 the Nasimi District Court extended the applicant’s pre-trial detention by three months (to 2 February 2015), finding that the grounds justifying his continued detention, “had not ceased to exist”. 25. On 24 October the applicant appealed, reiterating his previous arguments. 26. On 29 October 2014 the Baku Court of Appeal dismissed the appeal, upholding the extension decision of 14 March 2013 and providing the same reasoning as the first-instance court. 27. On an unspecified date in December 2014 the applicant applied to the Nasimi District Court, requesting the substitution of remand with house arrest. On 10 December 2014 the Nasimi District Court rejected his application, finding that the grounds justifying his detention, as specified in its decisions of 2 August and 23 October 2014, “had not ceased to exist”. 28. On 12 December 2014 the applicant appealed against the Nasimi District Court’s decision of 10 December 2014, reiterating his arguments in detail. On 19 December 2014 the Baku Court of Appeal dismissed the appeal. 29. No further decisions extending the applicant’s detention are available in the case file. 30. On 12 December 2014 the Prosecutor General’s Office charged the applicant under Articles 179.3.2 (high-level embezzlement) and 313 of the Criminal Code, in addition to the original charges under Articles 192.2.2, 213.1 and 308.2 of the Criminal Code. The description of the allegations against him was slightly expanded, but essentially remained the same as that given on 2 August 2014 (see paragraph 16 above), with additional information alleging that the applicant had falsified various pieces of paperwork and minor contracts for services provided by a number of individuals (presumably in connection with various grant projects) and had not paid them in full as stipulated in the contracts. The new description of charges also included changes to the total amount of the alleged illegal profit obtained by the applicant (AZN 150,170.62) and the alleged amount of unpaid taxes (AZN 6,257.11). 31. The applicant’s criminal trial began in January 2015. On 16 April 2015 the Baku Court of Serious Crimes convicted him of all charges and sentenced him to six and a half years’ imprisonment and deprivation of the right to hold official positions in State and local authorities and the right to engage in entrepreneurial activity for a period of three years. The conviction is not yet final and the appeal is pending. 32. Enclosed with his submissions to the Court, the applicant included statements by NED dated 22 October 2014, by the Royal Norwegian Embassy in Baku dated 19 November 2014, by the British Embassy in Azerbaijan dated 12 December 2014, by People In Need dated 12 January 2015, by OSIAF dated 20 and 21 January 2015, by International Bridges of Justice dated 22 January 2015 and by the Fritt Ord Foundation dated 5 February 2015. 33. All of those statements, addressed “To whom it might concern”, provided details of the relevant grants and donations awarded to the applicant or Human Rights Club, noted that the applicant had regularly provided the relevant donor with necessary accounting information concerning the expenditure of the funds, and specified that the donor organisations and embassies had every confidence that the funds had been used properly for the relevant projects and initiatives for which they had been awarded. 34. There is no indication in the case file that the above statements have been sought or taken into account by the prosecuting authorities. 35. Before and after the applicant’s arrest, numerous articles about him were published in the State media and in the media allegedly close to the government. In those articles, he was described as a spy for foreign interests and “a traitor”. Moreover, a number of politicians from the ruling political party made similar comments about recently arrested NGO activists and human rights defenders in Azerbaijan, without specifically naming the applicant. The following are some examples of such comments. 36. In January 2012 Yeni Azerbaijan, the official newspaper of the ruling party, ran a piece entitled “New Target of National Traitors: Eurovision 2012”, which attacked the Sing for Democracy campaign coordinated by the applicant as a campaign against the interests of the country and stated the following: “The blackmail and slander campaign of the Alliance to Protect Political Freedoms, Institute for Peace and Democracy, Institute for Reporters’ Freedom and Safety, and Human Rights Club is based on ugly intentions which are evident from the names of these organisations. These organisations always orchestrate the ugly plans of several interested circles against Azerbaijan and act as mercenaries. The remote control of those who would do anything for money, who easily betray their country and State by launching a black smear campaign in exchange for foreign donations (donations obviously granted for meeting certain interests) is in the hands of those who give the money.” 37. Around the time of the applicant’s arrest and thereafter, the same newspaper and online news portals affiliated with the authorities published a number of pejorative articles calling the applicant an “American agent”, with headlines such as “American Agent Rasul Jafarov Detained for Three Months”, “The Rights of Rasul Jafarov, Another Agent, Limited”, and “Search of the Flat of American Agent Rasul Jafarov”. 38. On 14 August 2014 A.H., the Chairman of the Legal Policy and State Building Committee of the National Assembly, gave an interview to APA news agency where he commented on the reactions to the arrests of Ms Leyla Yunus, Mr Intigam Aliyev and other human rights defenders and stated: “... it is those [international organisations] which made them ‘well known’. The organisations which have allocated grants to them in non-transparent ways, directing them into various activities, including those against Azerbaijan. These people, some of whom are traitors and some weak-minded, will finally answer before the law.” 39. On 15 August 2014 A.H., the Head of the Department of Social and Political Issues of the Presidential Administration, stated the following in an interview with Trend news agency: “The most deplorable thing is that such NGOs and individuals and some journalists, relying on foreign circles funding them, placed themselves above the national law, evaded registering their grant projects, filing financial statements, paying taxes and the government’s other legal requirements.” 40. In an interview published on 2 September 2014 Y.M., a member of parliament from the ruling party, who was also the Director of the Institute of History at the Academy of Sciences, stated the following in respect of the recently arrested NGO activists and human rights defenders: “People who betray their motherland cannot be forgiven. ... The death penalty should be imposed on such people. Capital punishment must be the gravest punishment for them. Why should traitors be forgiven? ... Therefore, the activities of a number of non-governmental organisations must be investigated very seriously, and if any illegality is discovered, such organisations must be immediately banned and their leaders punished.” 41. On 3 December 2014 State-owned news agencies published a sixtypage manifesto written by R.M., the Head of the Presidential Administration, entitled “The World Order of Double Standards and Modern Azerbaijan”. The article accused human rights NGOs operating in the country of being the “fifth column of imperialism”. It postulated that various, mostly US-sponsored, donor organisations such as NED, as well as other foreign organisations, supported political opposition movements in various countries against national governments. For local human rights NGOs, the purpose of such funding schemes was the formation of a “fifth column” inside a country. US taxpayers’ money was spent on preparing a change of political power or forcing existing governments to comply with US political demands. 42. According to the applicant, in various speeches given in 2014 the President of the State had stated that foreign criticism of the human rights situation in Azerbaijan had nothing to do with human rights, but was politically motivated, and that within the country there were “national traitors who had sold their conscience to foreign anti-Azerbaijani circles”. 43. The applicant’s representative, Mr Bagirov, was an advocate and a member of the Azerbaijani Bar Association (“the ABA”). He was affiliated with Law Office no. 6 in Baku. 44. In November 2014 disciplinary proceedings were instituted against Mr Bagirov by the ABA on the basis of a letter dated 25 September 2014 from a judge of the Shaki Court of Appeal. In his letter, the judge informed the ABA that Mr Bagirov had breached the ethical rules of conduct for advocates at court hearings held in September 2014 before the Shaki Court of Appeal during criminal proceedings against I.M. 45. On 10 December 2014 the Collegium of the ABA held a meeting at which it considered the complaint against Mr Bagirov. Following the meeting, the Collegium of the ABA held that Mr Bagirov had breached the ethical rules of conduct for advocates because at the court hearing he had made the following remark about the judicial system, “Like State, like court ... If there were justice in Azerbaijan, Judge [R.H.] would not deliver unfair and partial judgments, nor would an individual like him be a judge” (“Belə dövlətin belə də məhkəməsi olacaq ... Azərbaycanda ədalət olsaydı, hakim [R.H.] ədalətsiz və qərəzli hökm çıxarmaz, nə də onun kimisi hakim işləməzdi”). On the same day the Collegium of the ABA decided to refer Mr Bagirov’s case to a court, with a view to his disbarment. It also decided to suspend his activity as an advocate (vəkillik fəaliyyəti) pending a decision by the court. 46. It appears from documents submitted to the Court that, following Mr Bagirov’s suspension as an advocate, the domestic authorities stopped allowing him to meet the applicant in prison. 47. On 29 March 2015 Mr Bagirov sent a letter to the Head of the Prison Service of the Ministry of Justice asking for a meeting with six of his clients who were held in detention, including the applicant. He specified in his letter that he was representing those individuals before the Court, and requested a meeting with them in connection with their pending cases. The relevant part of the letter reads: “I am writing to inform you that I represent the following individuals, who are detained in the penal facilities and temporary detention centres under your authority, before the European Court of Human Rights. I ask you to allow a meeting with these individuals in connection with the progress of their cases based on their applications lodged with the European Court (the numbers of which are stated below): ... 6. Jafarov Rasul Agahasan oglu (Baku Detention Facility, application no. 69981/14) Attachment: Copies of letters from the European Court and the Azerbaijani government concerning these individuals.” 48. A copy of the letter was also sent to the Head of the Serious Crimes Department of the Prosecutor General’s Office. 49. By a letter of 14 April 2015, the Deputy Head of the Prison Service refused to allow Mr Bagirov to meet the applicant in prison. The relevant part of the letter reads: “Your request for a meeting in the penal facilities and detention centres with the individuals detained in the penal facilities and with convicted inmates in order to provide them with advocacy services has been considered. In explanation, as your advocacy activity at Law Office no. 6 has been suspended by decision no. 29 of 10 December 2014 of the Bar Association of the Republic of Azerbaijan and you have been disbarred, and [as a result of the fact that] as of that date you can no longer practise as an advocate in court and investigation proceedings, it is impossible to grant you access to the penal establishments as counsel.” | 1 |
test | 001-175657 | ENG | UKR | CHAMBER | 2,017 | CASE OF ROSTOVTSEV v. UKRAINE | 3 | Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano | 5. The applicant was born in 1983 and lives in Kyiv. 6. On 7 May 2015 the applicant stood trial before the Kyiv Obolonsky District Court, charged with unlawful purchase and possession of large quantities of narcotic drugs, an offence under Article 309 § 2 of the Criminal Code. A prosecutor was present. The applicant was unrepresented. 7. It appears from the trial court judgment that when questioned in the course of the trial, the applicant stated that he had been feeling unwell so had been taking Tramadol to relieve the pain. He admitted that on 22 January 2015 he had bought ten blisters of Tramadol, a narcotic-like pain reliever, from a stranger in the street for the equivalent of about EUR 53 and had been arrested shortly afterwards. He expressed remorse and asked for leniency in sentencing. In view of those admissions the trial court, relying on Article 349 § 3 of the Code of Criminal Procedure (“CCP”) (see paragraph 13 below), ruled it unnecessary to examine the evidence related to the “circumstances”, which were “not contested by any party”. On the same day the trial court convicted the applicant of illegal purchase and possession of drugs, an offence under Article 309 § 2 of the Criminal Code, and sentenced him to two years and six months’ imprisonment. 8. The applicant appealed, arguing that his admissions before the trial court had related only to the facts and not to the legal classification of the offence, which he maintained was erroneous. He argued that mere possession of Tramadol was not unlawful as such, except where it was in breach of the applicable regulations. For this reason, his acts should have been classified not under Article 309 of the Criminal Code as drug possession but rather under Article 320 of the Criminal Code, namely breach of the rules related to the purchase and circulation of drugs and analogous products. 9. On 1 July 2015 the Kyiv City Court of Appeal, sitting as a singlejudge formation, denied the applicant leave to appeal. The court stated that the applicant had admitted the circumstances of the offence and the trial court had then proceeded under Article 349 § 3 of the CCP. However, in his appeal the applicant was contesting his conviction under Article 309 of the Criminal Code and the legal classification of his actions. The court held that, because of the applicant’s admission and the procedure used at the trial under Article 394 § 2 of the CCP (see paragraph 14 below), the decision was not amenable to appeal on the grounds invoked by the applicant. 10. On 3 August 2015 the Higher Specialised Civil and Criminal Court dismissed an appeal on points of law lodged by the applicant, holding that the Court of Appeal’s decision had complied with the rules of criminal procedure. | 1 |
test | 001-159924 | ENG | MLT | CHAMBER | 2,016 | CASE OF BORG v. MALTA | 3 | Remainder inadmissible;Violation of Article 6+6-1 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 7. The applicant was born in 1976 and is currently detained at the Corradino Correctional Facility in Paola. 8. By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010. Prior to this Legal Notice Maltese law did not provide for legal assistance during pretrial investigations and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time, no inferences could be drawn by the trial courts from the silence of the accused at this stage. 9. The applicant, at the time twenty-seven years of age, was arrested on 15 April 2003 on suspicion of importation and trafficking of drugs (heroin) in relation to two episodes in March and April 2003. On 17 April 2003 while under arrest and precisely during questioning, after being duly cautioned about his right to remain silent, the applicant, in the absence of a lawyer, gave a statement to the police, which however he refused to sign. 10. In his statement he said that he regularly drove a white Ford Escort and that he was married to a Thai national. In reply to questioning, he stated that he did not remember his whereabouts on 3 March 2003 and that he did not know a certain N. and M. and three other Turkish nationals (K., R., and M.I.). Neither had he ever paid or received money from the aforementioned persons. He further stated that he had never made or received calls to and from Turkey. He denied having, on 4 March 2003, made contact with any foreigner in Paceville, or having received anything from M. or ever having made a phone call to two specific numbers shown to him by the police. He further denied having gone to Paceville with his wife in his car and making contact with M. on 5 March 2003; he also denied that on that day M. had given him heroin capsules in the presence of his wife. He claimed however to have gone to Paceville at 10 a.m. to look for a person who had stolen his car stereo. The applicant availed himself of the right to remain silent in respect of questions as to whether he had a drug problem, whether he had ever used heroin, and when was the last time he had done so. On being asked whether he had written the two names found on a piece of paper in his car and what was their purpose, he replied that he had himself written the two names but that he did not know the people and that he was unaware of the purpose of the paper, which had been in his car for a very long time. 11. On the same day (17 April 2003) the applicant was arraigned before the Court of Magistrates as a Court of Criminal Inquiry (committal proceedings) and his above-mentioned statement exhibited as evidence against him. The prosecution also produced another two statements implicating the applicant, given by two prosecution witnesses (N. and M., two Turkish female drug couriers, mentioned above) who had also been arrested and investigated in connection with the same crimes, and who had also not been legally assisted during the police investigation into their case. 12. In the meantime, on 15 April 2003 the duty magistrate (C.) had been informed that the applicant had been arrested, that a search had been carried out at his place of residence, and that certain items had been seized. Instead of proceeding herself to the spot to conduct the inquest for the purpose of the in genere inquiry (inkjesta), she appointed the police investigating officer to hold an on-site inquiry, and at the same time appointed a number of experts to assist him (see Articles 546 - 548 of the Criminal Code, relevant domestic law, paragraph 31 below). In their document of appointment, however, the experts were required to report their findings to her within three days. The following day she acceded to the Commissioner of Police’s request that she order the relevant telephone companies to give all the information requested in connection with the mobile phones seized in the course of the investigation. In the procès-verbal of 23 April 2003 no findings were reported by her, given that on 21 April 2013 the Commissioner of Police had requested the said magistrate to close the inquest since committal proceedings (kumpilazzjoni) had already started in respect of the applicant (see paragraph 9 above). All the relevant documents were attached to the procès-verbal and the record of the in genere inquiry sent to the Attorney General. 13. The same magistrate (C.) was assigned (by lot) the case in the Court of Magistrates sitting as a Court of Criminal Inquiry. She eventually decided that there was enough evidence to put the applicant under a bill of indictment. The resulting bill of indictment was filed by the Attorney General on 14 June 2006. 14. In consequence the applicant was tried by a jury and by a judgment of the Criminal Court of 16 January 2008 he was found guilty of importing, causing to be imported, or taking steps preparatory to the importation, of heroin between February and 15 April 2003; that between February and April 2003 he conspired with other persons to import, sell or traffic heroin, or promoted, constituted, organised or financed such a conspiracy; and that in the same period he had in his possession the drug heroin in circumstances which indicated that it was not for his exclusive use. The Criminal Court sentenced him to twenty-one years’ imprisonment and a fine of 70,000 euros (EUR). During these proceedings the applicant had objected to the statements made by N. and M. on various grounds, however these objections were withdrawn on 30 October 2006, apart from one objection concerning the inadmissibility of the results of the identification parade. 15. The applicant appealed, claiming an incorrect application of the law (unrelated to legal assistance), a wrong assessment of the facts, and a disproportionate punishment. 16. During the appeal proceedings the applicant requested the Court of Criminal Appeal to refer the case to the constitutional courts on constitutional grounds (different from those raised below). On 20 November 2008 the Court of Criminal Appeal found his claims to be frivolous and vexatious and rejected his request. 17. By a judgment of the Court of Criminal Appeal of 19 May 2011 the applicant’s appeal was dismissed and the first-instance judgment confirmed (apart from a slight change in respect of the timing of the third charge). 18. In so far as is relevant, the Court noted that the jury had had the advantage of seeing and hearing all the witnesses, and that the jurors had arrived at the conclusion that they should not rely on the version of events given by the applicant in his statement. The first issue which the jury had to decide was whether the two couriers (N. and M.) had made contact with the applicant in March 2003. In his statement to the police the applicant denied knowing the two women and other people mentioned by them, and also denied that he had made and received calls to and from Turkey. However, the two women identified the applicant as being the person they made contact with in March 2003, namely as the person who had given N. food, gloves, disinfectant and a laxative, and to whom M. had given the capsules they had carried in their stomachs. A number of factors gave credibility to the women’s identification of the applicant: (i) the circumstances of the meetings they had with him at which time he was using a white four-door car and was in the company of an Asian woman; (ii) the applicant’s statement that he habitually made use of a white four-door Ford Escort and that he was married to a Thai woman; (iii) the fact that when arrested N. and M. had separately identified the applicant in photographs; (iv) moreover, the two women had separately identified the applicant in identification parades supervised by a duty magistrate; and they did the same without hesitation when they testified, both during the committal stage and before the jury. In the light of all those factors the jurors could reasonably conclude that the person N. and M. had met in March 2003 and to whom they had delivered the capsules was the applicant. 19. This having been established, the jury had to determine what the capsules delivered to the applicant contained and whether the applicant was connected to the delivery of April 2003 intercepted by the police. The experts had stated that the capsules contained heroin. The court rejected the applicant’s argument that the delivery of March 2003 concerned cannabis, given that studies showed that drug couriers were used in connection with heroin and cocaine and sometimes ecstasy, and that Turkey was considered a key transit route to Europe for heroin. 20. It appeared from the evidence given by the two women that they had imported heroin in April 2003, which was the second time they had come to Malta. They had been forced to return in April since, in March, M. had lost most of the capsules she was carrying when vomiting on board the flight. The court considered that a recipient would expect to receive the full delivery, and that therefore it was logical for the supplier to force the courier to deliver what had been missing because of her fault. It followed that, from their testimony, it was reasonable for the jury to conclude that what N. and M. had carried in March 2003 was also heroin. The court considered that this was the only possible conclusion to be arrived at. Neither was it conjecture to conclude that the drug being carried in April was destined for the applicant. Indeed during the trial by jury M. had indicated the applicant as the recipient. The court rejected the applicant’s argument that he could not be the recipient because the women had referred to someone whose father had passed away, which was not the case for the applicant. It considered the relevant part of the statement by the women as hearsay evidence and in any event it was a statement which referred to a third person and not the applicant. 21. The court further noted that on 15 April 2003, when the delivery was meant to take place, the police had seen the applicant drive around the area (at least three times) in his white Ford Escort, a short time before M. was arrested. Indeed the jurors had not believed the applicant’s version that he had gone to Paceville to look for someone who had stolen his car stereo. Moreover, the jurors could not have ignored that in his statement the applicant had denied any connection with Turkey, despite the fact that he could not explain the Turkish names written on a piece of paper which was found in his car and which he admitted he had written himself, and that N. had testified that the applicant had spoken to a Turkish person on the telephone. 22. The Court of Appeal decided that in the light of the above considerations and all the evidence produced, the jurors could legally and reasonably conclude that the applicant was guilty of the first and second charge, but only partly as to the third charge, since he had never received the delivery of April 2003. 23. The applicant instituted constitutional redress proceedings, claiming a breach of his right to a fair trial (Article 6 § 3 (c)) on account of the lack of legal assistance during the investigation and interrogation, both in his respect and in respect of the witnesses who had also been under investigation, their statements having repercussions on his trial. He further complained that the same magistrate who had conducted the in genere inquiry was also the magistrate who had conducted the compilation of evidence in the committal proceedings. He requested a remedy including, but not limited to, a declaration that the criminal proceedings be cancelled and compensation paid. 24. By a judgment of 4 June 2012 the Civil Court (First Hall) in its constitutional competence rejected the applicant’s claim. 25. In respect of the statement made by the applicant on 17 April 2003 the court noted as follows: (i) the applicant had not raised the issue before his criminal proceedings came to an end, and the judgment was now res judicata; (ii) neither had he raised the issue in his referral request pending the criminal proceedings before the Court of Criminal Appeal; (iii) the applicant’s statement was not determinant to finding him guilty: in his statement he had not admitted to trafficking in drugs or that he knew N. and M., and he had chosen to remain silent when questioned about drug use; (iv) while it was true that the Court of Criminal Appeal had referred to extracts from his statement, this was not the basis of his conviction, which was based on the evidence given in court by M. and N. and on the results of the previous identification parades – indeed he had said nothing relevant in his statement. 26. The court concluded that the proceedings having ended it had to look at the entirety of the proceedings, and it was not for it to substitute the findings of the jury. During the trial the applicant was represented by a lawyer and had ample opportunity to submit evidence and contest any evidence brought against him, and the fact that he did not have legal assistance during questioning did not have an irreparable effect on his right to defend himself. 27. The court rejected the second complaint in relation to legal assistance for the witnesses, in so far as the applicant had no standing in that respect. Moreover, their statements had remained unchanged; the applicant could have challenged them during the trial but had opted not to do so. 28. Lastly, in relation to the third complaint it held that the magistrate conducting the in genere inquiry was independent of the police, did not act as a prosecutor, and in the present case did not express an opinion as to whether there was sufficient evidence for the police to institute proceedings in respect of the applicant. The applicant’s case was also tried by a jury and then reviewed by the Court of Criminal Appeal. Furthermore, the applicant had not raised the issue in the committal proceedings in 2003 - indeed a comment somewhat related to the issue had been explicitly withdrawn on 30 October 2006 before the Criminal Court - and he should not therefore be allowed to benefit from his own passivity. 29. By a judgment of 25 January 2013 the Constitutional Court dismissed the applicant’s appeal and confirmed the first-instance judgment, with costs against the applicant. It noted that a correct interpretation of Salduz v. Turkey [GC] (no. 36391/02, ECHR 2008) had to be made in view of the circumstances of that case, where indeed Mr Salduz had been in a vulnerable position when he had made his statement. The rationale of the right was precisely that, and not to allow guilty persons to be let off scotfree because of a formality which had no real or serious consequences. In the present case the applicant did not claim that he was forced to make the statement, or that he was in any other way vulnerable when he made his statement. The right to a lawyer was aimed at avoiding abuses, which in fact did not happen in the applicant’s case. Thus, while there was no procedural obstacle for the applicant to complain at this stage, namely before the constitutional jurisdictions, despite the fact that he had not raised the issue in the criminal proceedings, the element of vulnerability was missing in the applicant’s case, and thus there could be no violation of his rights. The Constitutional Court held that even if the statement had been determinant for the finding of guilt, that finding was not necessarily tainted unless the statement had been obtained under duress, which was not so in the present case. Nevertheless, in the instant case the statement was of no relevance whatsoever, as the applicant had not admitted to anything and the Court of Criminal Appeal had only referred to the statement in saying that the jury had not believed the applicant’s version. It had been other evidence that had led to his finding of guilt. Lastly, the Constitutional Court noted that it could not agree to a general view that the moment a statement was made without legal assistance it became ipso facto invalid and brought about a breach of Article 6. 30. As to the complaint related to the witnesses, the court did not rule out the applicant’s locus standi, which could come into play if their statements had been made under duress. However, it was not so in the present case, where the witnesses had reiterated their statements even before the trial courts. It followed that those statements were also admissible. Lastly it confirmed the reasoning of the first-instance court relating to the impartiality of the magistrate, finding the applicant’s argument opportunistic. | 1 |
test | 001-141379 | ENG | ROU | ADMISSIBILITY | 2,014 | PĂTRÎNJEI v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Ioan Pătrînjei, is a Romanian national, who was born in 1947 and lives in Timişoara. He was represented before the Court by Mr S. Secoban, a lawyer practising in Timişoara. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 26 November 1990 the applicant, a Timişoara Post Office employee, signed a lease with the Timişoara Radiocommunications Agency, an organisation attached to the Timişoara Post Office, for one of the accommodation units located in a building owned by the said Radiocommunications Agency. 5. On 29 July 1992 Law no. 85/1992 on the sale of dwellings and spaces for other purposes built by the State and State-owned companies entered into force. 6. On an unspecified date the Timişoara Post Office and the Timişoara Radiocommunications Agency split into two distinct organisations. While the applicant remained a post office employee, the Agency remained the owner of the building in which the applicant was a tenant. 7. By a decision of 28 December 1993 the board of the Timişoara Radiocommunications Agency decided that for the purposes of Law no. 85/1992 the apartments located in the building the applicant was living in constituted standby personnel accommodation (locuințe de intervenție), that they were intended exclusively for employees of the Agency, and that they could not be sold. 8. On an unspecified date, the tenants’ association of the building in which the applicant lived asked the Timişoara Radiocommunications Agency’s board to allow its members to purchase the apartments they were leasing. The request addressed to the Agency’s board was personally signed by the applicant and twelve other tenants and bore the seal of the association. 9. On 8 March 2004 the Timişoara Radiocommunications Agency notified the applicant that his lease would be terminated and asked him to vacate the apartment he was leasing because – amongst other things – he was not an employee of the Agency and the apartment in question was classified as standby personnel accommodation. 10. On 22 April 2004 the applicant dismissed the Timişoara Radiocommunications Agency’s request of 8 March 2004 on the grounds that the lease was still valid. 11. On 29 July 2004 the Timişoara Radiocommunications Agency brought proceedings against the applicant seeking the termination of his lease and his eviction. It argued, inter alia, that the applicant was not an employee of the organisation which owned the building, and the apartment in question was classified as standby personnel accommodation. 12. On the same date, the applicant lodged a counterclaim against the Timişoara Radiocommunications Agency before the domestic courts seeking – on the basis of Law no. 85/1992 – an injunction ordering the company to sell to him the apartment he was leasing. He argued that the apartment in question could not be classified as standby personnel accommodation and that, although over the years he had repeatedly asked the Agency to sell him the apartment, he had received contradictory and evasive verbal answers. 13. By a judgment of 20 September 2005 the Timişoara District Court dismissed the Timişoara Radiocommunications Agency’s action and allowed the applicant’s counterclaim and ordered the Agency to sell him the apartment he was leasing. It held that the applicant held a valid lease which he had signed before the Agency’s board decided to change the main purpose of the building in which the apartment was located. 14. On 6 April 2006 a bailiff notified the Timişoara Radiocommunications Agency on the applicant’s behalf that, according to the judgment of 20 September 2005, it had a duty to sell the apartment to the applicant. In addition, it asked the Agency to inform the applicant in writing – within five days of the date on which it received the notification – of the date and place where the contract of sale would be signed. 15. The Timişoara Radiocommunications Agency appealed against the aforementioned judgment. It argued that although the applicant contended that he had repeatedly asked to purchase the apartment, he had failed to submit any written documents to support his claim. 16. By an interlocutory judgment of 19 May 2006 the Timiş County Court granted the Timişoara Radiocommunications Agency’s application and asked the applicant to submit evidence that he had asked the Agency to sell him the apartment. 17. By a judgment of 10 November 2006 the Timiş County Court dismissed the Timişoara Radiocommunications Agency’s appeal on the basis of the available evidence. It held that the applicant fulfilled the conditions laid down in Law no. 85/1992 for purchasing the apartment. Moreover, the applicant’s right to purchase the apartment could not be considered time-barred because Law no. 85/1992 did not lay down a timelimit for the applicant to exercise his right to purchase the apartment. Furthermore, the lease could not be considered terminated as long as the applicant had exercised his right of purchase. 18. The Timişoara Radiocommunications Agency appealed on points of law (recurs) against the judgment. It argued that the applicant had not submitted any evidence in support of his claim that he had asked to purchase the apartment prior to the notification sent to him by the Agency that his lease had been terminated. 19. On 29 November 2006 a bailiff notified the Timişoara Radiocommunications Agency for the second time on the applicant’s behalf that according to the judgment of 20 September 2005, it had a duty to sell the apartment to the applicant. 20. By a final judgment of 21 May 2007 the Timişoara Court of Appeal allowed in part the Timişoara Radiocommunications Agency’s appeal on points of law in so far as it concerned the applicant’s counterclaim. It held that the building containing the apartment leased by the applicant had been constructed during the communist regime using Agency funds. According to the expert report available on file, the apartment leased by the applicant was not standby personnel accommodation because some of the tenants leasing apartments in the building were not employees of the Agency. The applicant remained an employee of the Post Office and the leased apartment was owned by the Agency. At the time, the Agency did not wish to sell the apartment leased by the applicant and wanted to keep it in its possession. The court took the view that it could not usurp the will of the owner by its judgment and order the sale of the apartment in circumstances other than those desired by the owner. If the applicant asked the board of the Agency to sell him the apartment and his request was approved, a consensus between the wishes of the parties could be achieved and the contract desired by the parties concluded. However, in the present case the lower courts had misapplied the provisions of Article 7(1) of Law no. 85/1992. In so far as the Agency’s application seeking the termination of the applicant’s lease and his eviction was concerned, the court considered that it had been correctly rejected by the lower courts, that the validity of the applicant’s lease had been extended, and that he occupied the apartment on the basis of valid title. 21. The applicant lodged an extraordinary appeal seeking a review of the judgment (revizuire). 22. On 10 October 2007 the Timişoara Court of Appeal dismissed the applicant’s extraordinary appeal as being time-barred. 23. Section 7(1), (6) and (7) provides that apartments other than standby personnel accommodation built by State-owned companies before the date on which the law entered into force are to be sold to the lease-holders at their request. The provisions of subsection 1 apply also to tenants who are not employees of the companies that own the properties. 24. Section 2 (e) provides that standby personnel accommodation denotes apartments designated as housing for employees of the companies who under the terms of their employment contracts perform activities and functions which require their constant or urgent presence on company premises. 25. The parties submitted eight court judgments delivered between 9 March 2005 and 11 November 2009 concerning the interpretation of the provisions of Law no. 85/1992. These court judgments had been delivered by various domestic courts ranging from the Hunedoara County Court to the Court of Cassation, and were final. They included a judgment on an extraordinary appeal in the interests of the law (recurs ȋn interesul legii) delivered by the Grand Chamber of the Court of Cassation on 21 January 2008 with a view to harmonising the domestic courts’ practice in interpreting the aforementioned legal provisions with regard to leases concluded after the entry into force of Law no. 85/1992. According to those judgments, Sections 1 and 7 of Law no. 85/1992 impose a legal obligation on the companies owning the apartments to sell them. The creation of the legal relationship (raport juridic) is left to the discretion of the lease-holder who has the right to purchase the apartment. A legal obligation to sell exists only when three cumulative conditions are met: the apartment was built by State-owned companies before the date the law entered into force; the person asking to purchase it was the holder of the lease, regardless of whether or not he was an employee of the company which owned the apartment; and the apartment was not classified as standby personnel accommodation within the meaning of the law. 26. According to the judgment on extraordinary appeal in the interests of the law, delivered by the Grand Chamber of the Court of Cassation on 3 April 2013 with a view to harmonising the domestic courts’ practice in interpreting the provisions of Sections 1 and 7 of Law no. 85/1995 concerning the sale of apartments by privately owned companies which had become owners of the apartments as a result of the privatisation process, the legal obligation to sell also applies in respect of the aforementioned privately owned companies. | 0 |
test | 001-147027 | ENG | RUS | COMMITTEE | 2,014 | CASE OF LOSEVSKIY AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Dmitry Dedov;Erik Møse;Khanlar Hajiyev | 4. The applicants were born in 1978, 1979 and 1970 respectively and lived in Chelyabinsk prior to their arrest. 5. On 27 April 2005 the Krasnoflotskiy District Court of Khabarovsk remanded the applicants in custody. The applicants were charged with forgery and legalisation of money committed by an organised group. On 14 March 2007 the Industrialniy District Court convicted the applicants at first instance. 6. The applicants’ detention on remand was not based on relevant and sufficient reasons. The gravity of the charges was cited as the main reason for detention in orders of 27 April 2005, 3 June 2005, 16 July 2005, 19 July 2005, 25 July 2005, 9 September 2005, 12 September 2005, 13 September 2005, 1 December 2005, 30 December 2005, 15 February 2006, 26 June 2006, 25 September 2006, 26 October 2006, 25 December 2006 and 8 February 2007. The same detention orders did not mention specific and relevant facts capable of corroborating the existence of security risks. The domestic courts did not consider the possibility of applying alternative measures of restraint or did not consider them seriously. Extensions were approved without verifying compliance with the special diligence requirement: it was not stated what had been done in the period elapsed since the last extension and what had to be done during the period for which the extension would be granted (see the orders of 27 April 2005, 1 December 2005, 26 June 2006, 25 September 2006, 26 October 2006, 25 December 2006 and 8 February 2007). The detention orders of 1 December 2005, 30 December 2005, 15 February 2006, 26 June 2006, 25 September 2006, 26 October 2006, 25 December 2006 and 8 February 2007 employed repetitive standard formulae, notwithstanding changes in the applicants’ situation or developments in the proceedings. The trial court also issued collective detention orders in respect of the co-defendants that did not contain an analysis of their individual situations (see the orders of 15 February 2006, 26 June 2006, 25 September 2006, 26 October 2006, 25 December 2006 and 8 February 2007). | 1 |
test | 001-163811 | ENG | TUR | CHAMBER | 2,016 | CASE OF AYBOĞA AND OTHERS v. TURKEY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković | 4. The applicants were born in 1947, 1976, 1973, 1983 and 1987 respectively. At the time of the application they were being held in detention in Buca FType prison in İzmir. 5. On 23 July 2007 the İzmir Assize Court decided to restrict access to the investigation file, under Article 153 § 2 of the Code of Criminal Procedure (the “CCP”), Law no. 5271. 6. On 24 July 2007 the applicants were arrested and taken into custody on suspicion of being members of a criminal organisation. 7. On 27 July 2007 the applicants were questioned by the investigating judge, in the presence of their lawyer. According to their statements to the judge, the applicants denied being involved with the criminal organisation. They did not deny that they had had telephone conversations that had been intercepted, or that they had accepted the transfer of parcels and had possessed firearms, all of which were deemed to be evidence of making threats, of fraud and of smuggling, the offences that they were suspected of having committed. 8. On 1 August 2007 the applicants’ representative objected to the order for the pretrial detention in respect of the first four applicants. The representative also applied for their release pending trial on 3 February 2008, 11 February 2008 and 13 February 2008 respectively. Those applications were dismissed by the İzmir Assize Court on 4 February 2008, 11 February 2008 and 14 February 2008 respectively based the nature of the criminal charges and the state of the evidence. No hearing was held. 9. On 13 March 2008 the public prosecutor at the İzmir Assize Court filed an indictment, charging the first applicant with establishing a criminal organisation and the other applicants with being members of a criminal organisation. The applicants were further charged with committing fraud, making threats, and carrying out raids and smuggling, under Article 220 and other related articles of the Criminal Code. 10. On 17 March 2008 the trial court held an interlocutory session and, in the absence of the applicants, decided to extend their pre-trial detention. The first hearing was scheduled for 24 June 2008. 11. On 2 May 2008 the applicants’ representative objected to that decision in respect of the first four applicants and applied for them to be released. On 7 May 2008 the İzmir Assize Court dismissed the objection. The applicants’ representative appealed. On 9 May 2008 the appeal court dismissed the appeal without holding an oral hearing. 12. On 24 June 2008 İzmir Assize Court held the first hearing as planned and the applicants appeared before the court. The trial court decided to release the applicants from pre-trial detention on the same day. | 1 |
test | 001-148095 | ENG | TUR | CHAMBER | 2,014 | CASE OF ARAS v. TURKEY (No. 2) | 3 | Remainder inadmissible;Violation of Article 6+6-1 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing);Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed | András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano | 4. On 25 December 1997 the applicant became a member of the executive board of Yurtbank, and subsequently on 25 March 1998 he was appointed as Director General of the bank. 5. On 19 August 1998 Yurtbank founded the Yurt Security Offshore Bank in the “Turkish Republic of Northern Cyprus” (the “TRNC”). Subsequently, Yurtbank branch offices in Turkey started collecting deposits to be transferred to offshore accounts in the “TRNC”. 6. On 4 October 1999 the applicant resigned from his post as Director General and subsequently on 30 November 1999 he resigned from membership of the executive board. 7. On 21 December 1999 the Committee of Ministers decided to transfer the management and control of Yurtbank to the Savings Deposits Insurance Fund (Tasarruf Mevduat Sigorta Fonu). As result, a new executive board was set up and an inspector was appointed to study the administration of Yurtbank. 8. On 6 October 2000 the inspector submitted his report. Following an inspection of all the bank’s accounts, the inspector found it established that the Yurt Security Offshore Bank owed 32,898,662,376,959 Turkish liras (TRL), 5,105,982 US dollars (USD) and 7,514,387 German marks (DEM) to account holders. The report stated that these sums had been used by Yurtbank to provide loans to companies owned by Mr A.B., the main shareholder of the bank. The applicant’s name was also included in the list of persons who had authorisation to make the transfers. It was however stressed that the inspection had not revealed any direct or indirect responsibility on the part of the applicant in the impugned transfers. 9. On 2 November 2000 the new executive board filed a criminal complaint against the former board members, including the applicant. It was alleged that fifteen people, including the applicant, had established a criminal organisation to commit fraud. The complainants stated that the former board members had set up an offshore company with the aim of collecting deposits which they subsequently used to provide irregular loans. In that connection, it was indicated that the deposits collected for the offshore account had never been transferred to the “TRNC”. 10. On 14 November 2000 the applicant was arrested in Istanbul on suspicion of aggravated fraud. According to a form explaining arrested persons’ rights which the applicant signed, he had been informed of the charges against him and of his right to remain silent. In the form it was further noted that legal assistance could not be provided to persons accused of offences falling within the jurisdiction of the State Security Courts. 11. On 17 November 2000 the applicant was questioned without a lawyer present. In his police statement, the applicant explained that although he had been the Director General of the bank, he had not been directly involved in offshore banking activities, which were administered by a separate directorate. He stated that Yurtbank had acted as a correspondent bank for Yurt Security Offshore Bank. He explained that he had not put pressure on the managers of branch offices to collect deposits for offshore accounts but had known that the managers received bonus payments depending on the number of deposits they had collected for offshore accounts. He further explained that, using the deposits saved in offshore accounts, the bank had signed loan contracts with companies which were owned by the main shareholder of the bank, Mr A.B. In concluding these loan agreements, the bank had not requested any security and the agreements had been concluded on the basis of verbal authorisation, without any documents being submitted. The applicant stated that when he had become aware of the illegal activities he had quit his post as Director General of Yurtbank. 12. On 21 November 2000 the applicant was brought before the public prosecutor and subsequently the investigating judge at the Istanbul State Security Court. Before the public prosecutor, and without a lawyer present, the applicant repeated his police statement. When the applicant was brought before the investigating judge, the judge allowed the applicant’s lawyer to enter the hearing room. However, he was not allowed to take the floor or advise the applicant. During questioning, the applicant repeated his police statement and pointed out that there was no legislation or court decision that banned offshore banking activities. Following questioning, the applicant was placed in pre-trial detention. 13. On 10 January 2001 the public prosecutor at the Istanbul State Security Court filed an indictment with that court against thirty accused persons, including the applicant. The prosecutor accused the applicant of forming a criminal organisation and of committing aggravated fraud under Articles 313 and 504 of the Criminal Code (Law no. 765 – now repealed). In this connection it was alleged that a company owned by Mr A.B. had constructed real estate and that before the construction was finished the persons intending to buy the properties had been provided with real estate loans by Yurtbank, in which Mr A.B. was the main shareholder. In the process of concluding these loan agreements, the requisite legal documents and security had not been requested from the potential buyers, and by granting irregular loans the accused persons had allegedly committed fraud. It was also alleged that offshore banking activities had been used as a cover in order to provide illegal and irregular loans to the companies owned by the bank’s main shareholder, Mr A.B. 14. On 19 March 2001 the Istanbul State Security Court held its first hearing. In the presence of his lawyer, the applicant submitted his written defence submissions to the court. He stated that he accepted the statements taken from him in custody and pleaded not guilty. 15. On 18 June 2001 the applicant was released pending trial. 16. Following a change in the domestic legislation, the case was transferred from the Istanbul State Security Court to the Istanbul Second Assize Court on 24 December 2001. 17. At a hearing held on 10 October 2002 the trial court appointed three experts. In particular, the experts were asked to clarify whether irregular loans had been provided to companies owned by the main shareholder of the bank; whether the accused board members could be held responsible for those allegedly illegal transactions; and whether in providing the loans the bank had complied with the domestic legislation and obtained the prior authorisations and documents that were legally required. The experts were further asked to investigate the legality of the offshore activities of Yurt Security Offshore Bank. On 14 July 2003 the experts submitted a lengthy report to the court. At the outset, they pointed out that there was no domestic legislation which banned offshore banking activities in Turkey and that the establishment of Yurt Security Offshore Bank had been in line with domestic law and the “TRNC” legislation. 18. At a hearing held on 4 December 2003, the court ordered another expert report. On 13 January 2004 the report was submitted to the court. The experts concluded that, in the circumstances of the present case, it could not be concluded that the accused persons had committed aggravated fraud. In that connection they referred to the fact that when depositors opened offshore accounts it was clearly indicated in the relevant documents that these were offshore accounts, and therefore the depositors should have been aware of the fact that their deposits were not protected by the Savings Deposits Insurance Fund. 19. On 15 January 2004, pursuant to a change in the banking legislation, the Istanbul Eighth Assize Court became the competent specialised court to deal with cases concerning the Banking Activities Act (Law no. 4389), and the applicant’s case was accordingly transferred to that court. The new court requested a third expert report in order to calculate the damage sustained by the third-party interveners. In a report dated 14 October 2004, the experts pointed out that from 21 December 1999 onwards the accused persons, including the applicant, had been responsible for a total sum of TRL 15,832,536,971,373. 20. In the course of the hearings, several witness statements were taken, including from the managers of branch offices, who testified that they had been pressurised into collecting deposits for the offshore accounts. The applicant and his co-accused also submitted several legal opinions to the court drafted by university professors, attesting to the legality of offshore banking activities. 21. On 17 December 2004 the Istanbul Eighth Assize Court delivered its judgment. It held in the first place that it could not be established that the accused persons had intended to form a criminal organisation. It accordingly acquitted them of this charge. As to the accusations that the applicant had been involved in aggravated fraud on two counts, namely by providing illegal real estate loans and by using offshore banking activities to cover up fraudulent loans, the court found the applicant guilty as charged under Article 504 § 3 of the Criminal Code (Law no. 765). The applicant was accordingly sentenced to a total of five years and ten months’ imprisonment and a fine. In delivering its judgment, the court based its findings on the bank’s inspection reports, the expert reports, the police statements of the applicant and his co-accused, and witness statements. The court found it established that in his capacity as Director General of Yurtbank the applicant had given authorisation for the granting of irregular loans to companies which were owned by Mr A.B. 22. On 7 February 2005 the applicant appealed. 23. On 22 April 2005 the Principal Public Prosecutor at the Court of Cassation submitted his written opinion on the merits of the case. This opinion was served on the applicant’s lawyer on 7 June 2005. After holding a hearing, the Court of Cassation quashed the judgment of the first-instance court in so far as it concerned the term of imprisonment, stating that the sentence should be reassessed in the light of the new Criminal Code (Law no. 5237) that had entered into force in June 2005. It also upheld the acquittal of the applicant on the charge of forming a criminal organisation. 24. The case was accordingly remitted to the Istanbul Eighth Assize Court. On 29 September 2005 the applicant requested the court to hear evidence from several witnesses, including directors of the bank and certain experts, in particular a certain İ.F. The court rejected his requests on the same day, stating that the proceedings were at a stage where no more evidence was necessary. Nevertheless, at a hearing held on 27 October 2005 the witness İ.F. was heard and he made submissions regarding offshore banking. In his testimony, İ.F. explained the development of offshore banking and maintained that, in his opinion as an expert, the acts in question had not constituted an offence at the time when they were committed by the applicant. 25. On 29 November 2005 the first-instance court delivered its judgment. In lengthy reasoning, taking into account the decision of the Court of Cassation, it decided to sentence the applicant to one year and fifteen days’ imprisonment and a fine for providing illegal real estate loans, and then suspended this sentence. As to the charge of aggravated fraud through offshore banking activities, the court sentenced him to two years and one month’s imprisonment and a fine under Article 158 § (f) of the new Criminal Code, indicating that this was the most favourable provision applicable to the applicant’s case. In this connection, it was noted that the main shareholder of the bank, Mr A.B., had committed fraud by way of banking activities. The court further stated that although the applicant had not been officially working for the offshore bank, in his capacity as the Director General of Yurtbank he was aware of the fraudulent actions, and had actively participated in the unlawful activities by using Yurtbank’s resources. 26. The applicant appealed against the judgment of the Assize Court. On 9 February 2006 the opinion of the Principal Public Prosecutor attached to the Court of Cassation was notified to the applicant’s lawyer and on 13 April 2006 the applicant submitted his written observations in reply. 27. On 19 October 2006 the Court of Cassation discontinued the proceedings concerning the suspended sentence in respect of illegal real estate loans, holding that the statutory time-limit had expired. The appeal court further upheld the judgment of the first-instance court in respect of the applicant’s conviction for aggravated fraud by way of banking activities. | 1 |
test | 001-146697 | ENG | UKR | COMMITTEE | 2,014 | CASE OF VOLYANYK v. UKRAINE | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonably necessary to prevent fleeing;Reasonably necessary to prevent offence) | Aleš Pejchal;Helena Jäderblom | 4. The applicant worked as a deputy chief guard in “Lviv Railways”, a State-owned company. 5. On 26 October 2009 the police instituted criminal proceedings against the applicant suspecting that he, against bribes, had covered up thefts from the company’s premises in conspiracy with S. and D. 6. On 3 November 2009 the Galytskyy District Court of Lviv ordered the applicant’s pre-trial detention stating that “[The applicant] committed serious crimes, he does not admit his guilt, if at liberty [he] will influence witnesses and other persons involved in the criminal case. [As the applicant] works as a policeman, [he] is well aware of how to obstruct the investigation and justice”. There is no evidence in the case-file that the applicant worked as a policemen prior to or during the events described in the present application. It remains unknown whether S. and D. were also arrested or remained at liberty. 7. On 9 November 2009 the Lviv Regional Court of Appeal upheld this decision. 8. On 25 December 2009 the Galytskyy Court extended the applicant’s detention until 26 February 2010 on the grounds that “not all the applicant’s accomplices were detained ... [the investigative authorities] keep receiving complaints [from persons who gave bribes to the applicant]. If at liberty the applicant will have an opportunity to obstruct the investigation or abscond”. On 30 December 2009 the Court of Appeal upheld this decision. 9. On 22 February 2010 the Galytskyy Court extended the applicant’s detention until 26 April 2010 stating that “the accused committed serious crimes, he does not admit his guilt and refuses to testify, while if at liberty [the applicant], who has higher education and extensive work experience [as a guard], might influence witnesses, obstruct the investigation and abscond”. 10. On 22 April 2010 the Lviv Regional Court of Appeal prolonged the applicant’s detention until 26 July 2010 stating that there was a need to carry out a number of investigative measures in the case, the applicant was charged with serious crimes, he might abscond, obstruct the investigation, or continue his criminal activities. 11. On an unspecified date the preliminary investigations in the applicant’s case were completed and the case was submitted to the Sykhiv District Court of Lviv for trial. 12. On 17 August 2010 the Sykhiv District Court, holding a preliminary hearing in the criminal case against the applicant, upheld the applicant’s preventive measure without providing any reasons for doing so or fixing a time-limit for the applicant’s detention. 13. On 16 February 2012 the Sykhiv Court allowed the applicant’s request for change of a preventive measure on health grounds. On the same date the applicant was released against an undertaking not to abscond. | 1 |
test | 001-156001 | ENG | TUR | ADMISSIBILITY | 2,015 | ÇELİK v. TURKEY | 4 | Inadmissible | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens | 1. The applicant, Mr Cengiz Sinan Halis Çelik, is a Turkish national, who was born in 1974 and is currently serving a prison sentence. 2. 3. On 24 April 2012, based on Rule 123 of the Prison Regulations, the reading committee of the Tekirdağ F-Type prison decided that a document posted to the applicant by a third person and which had been drafted in Kurdish should not be remitted to the applicant, as it was considered that the content of the document might be offensive. 4. On 30 May 2012 the Tekirdağ Enforcement Judge dismissed the applicant’s objection. 5. On 12 September 2012 the Tekirdağ Assize Court further dismissed the applicant’s appeal. 6. A full description of the domestic law and practice at the relevant time may be found in Mehmet Nuri Özen and Others v. Turkey, nos. 15672/08, 24462/08, 27559/08, 28302/08, 28312/08, 34823/08, 40738/08, 41124/08, 43197/08, 51938/08 and 58170/08, §§ 30-34, 11 January 2011. 7. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey (dec.), no. 44013/07, §§ 9-17, 27 May 2014. | 0 |
test | 001-140395 | ENG | FIN | CHAMBER | 2,014 | CASE OF PENTIKÄINEN v. FINLAND | 3 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano | 5. The applicant was born in 1980 and lives in Helsinki. 6. The applicant is a photographer and journalist for the weekly magazine Suomen Kuvalehti. On 9 September 2006 he was sent by his employer to take photographs of the demonstration which was being held in protest against the on-going Asia-Europe meeting (ASEM) in Helsinki. The demonstration was an exceptionally large one in the Finnish context and all media followed it closely. 7. Before the demonstration took place, on 30 August 2006, the Helsinki Police Department was alerted by the Finnish Security Intelligence that the upcoming “Smash ASEM” demonstration would be a hostile one and would not aim to highlight any clear political message. The Police Department did not manage to establish contact with the organisers of the demonstration. 8. The demonstration was to start at 6 p.m. on 9 September 2006. A separate area was reserved for the representatives of the media so that they could freely and safely observe the situation and take photographs on the demonstration place. 9. At the start of the demonstration, bottles, stones and jars filled with paint were thrown at public and policemen. Some demonstrators kicked and hit police officers. The police announced several times over loudspeakers that a peaceful demonstration was allowed on the spot but that the crowd was not allowed to demonstrate by marching. The crowd tried to break through the police defence line. Relying on all the information in their possession, the police decided to interrupt the demonstration which had now turned violent. The police announced over loudspeakers that the demonstration was stopped and that the crowd should leave the scene. This announcement was repeated several times. Hundreds of people then left voluntarily. 10. After the escalation of violence, the police considered that the event had turned into a riot and decided to seal off the demonstration area. First only a few people were allowed to leave the area. Then the police established several exit routes and people were allowed to leave. When leaving, they were asked to show ID and their belongings were checked. 11. However, the core group of around 20 people remained in one of the demonstration spots, including the applicant and a former Member of Parliament, all of whom had been asked to leave the scene, failing which they would be arrested. According to the applicant, he thought that this request only applied to the demonstrators. He claims that sometime later he indicated to the police that he was a representative of the media. He further claims that he was wearing his press badge and that a police officer accepted this. After having called his colleague, the applicant decided to stay until the situation was over. A short time later the police arrested the demonstrators. When leaving the scene the applicant was also arrested. The police arrested altogether 121 persons in the context of the demonstration. 12. The applicant was detained from 9 September at 9.26 p.m. until 10 September at 3.05 p.m., that is, 17.5 hours. 13. On 23 May 2007 the public prosecutor brought charges against the applicant for disobeying the police (niskoittelu poliisia vastaan, tredska mot polis) under Chapter 16, section 4, subsection 1, of the Penal Code. 14. On 17 December 2007 the Helsinki District Court (käräjäoikeus, tingsrätten) found the applicant guilty of disobeying the police but did not impose any penalty on him. The court found it established that the applicant had been aware of the orders of the police to leave the scene but had decided to ignore them. It appeared from the witness statements given before the court that the applicant had not told or indicated the arresting police officer that he was a journalist. According to the arresting officer, this fact only became known to him when the relevant magazine appeared. It appeared also from the witness statements that two other photographers, who had been in the sealed-off area, had been able to leave the scene without consequences just before the applicant was arrested. The court found it further established that the police orders had been clear and that they had clearly concerned everybody. The court balanced the Article 10 right against other interests, finding that the police had had the right to ask the applicant, among others, including the former Member of Parliament, to leave the scene. The interference with the applicant’s right to exercise his freedom of expression had thus been based on law, and it had fulfilled the legitimate aim of preventing disorder. The interference had been necessary in a democratic society in order to put an end to a violent situation. However, relying on Chapter 6, section 12, of the Penal Code, no penalty was imposed as the offence was excusable. The court found that the applicant who, as a journalist, was confronted with contradictory expectations, stemming from obligations imposed on the one hand by the police and on the other by his employer. 15. By letter dated 23 January 2008 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), claiming that the District Court should have dismissed the charges against him. He argued that his arrest and the fact that he was found guilty were against the Constitution and Article 10 of the Convention. The applicant was a journalist and that he had not participated in the demonstration or caused any disorder. The District Court had not reasoned why his arrest and conviction were “necessary in a democratic society” and had thereby failed to justify the interference. 16. On 30 April 2009 the Court of Appeal rejected the applicant’s appeal without giving any further reasons. 17. By letter dated 24 June 2009 the applicant further appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal. 18. On 1 September 2009 the Supreme Court refused the applicant leave to appeal. | 0 |
test | 001-140784 | ENG | HRV | CHAMBER | 2,014 | CASE OF PETRINA v. CROATIA | 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 in person) | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1954 and lives in Primošten. 6. On 31 March 2003 the Šibenik Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Šibeniku) indicted the applicant in the Šibenik Municipal Court (Općinski sud u Šibeniku) on charges of attempted grievous bodily harm. 7. The first hearing before the Šibenik Municipal Court was scheduled for 16 March 2006. 8. On the day of the hearing, the applicant informed the Šibenik Municipal Court that he was unable to appear at the hearing owing to a medical condition. He also submitted medical documentation in that regard. 9. Several witnesses also failed to attend the hearing and the applicant’s lawyer informed the trial court that she no longer represented the applicant. The hearing was adjourned and the next hearing was scheduled for 26 April 2006. 10. At the hearing of 26 April 2006 the applicant, who was not properly summoned, failed to appear. The president of the trial panel ordered that the applicant be summoned by a letter indicating that his defence lawyer no longer represented him and that he should either appoint another lawyer or the hearing would be held in the absence of a lawyer. 11. On 22 May 2006 the applicant informed the Šibenik Municipal Court that he was not able to appear for trial owing to his medical condition. He explained that he would be unavailable for a certain period of time because he was required to undergo medical treatment and promised to inform the court of the progress of that treatment. He therefore asked that the proceedings be stayed until he was able to appear at the hearings. The applicant also submitted back-up medical documentation. 12. At a hearing on 23 May 2006 the Deputy State Attorney asked the trial court to commission a medical report concerning the applicant’s capacity to take part in the proceedings given his state of health. 13. On 30 May 2006 a medical expert, M.D.G., submitted a report indicating that the applicant suffered from heart arrhythmia. She considered that he would not be able to take part in the hearings for a period of time which was hard to predict. She therefore suggested that the trial court re-examine his condition after a month. 14. On 11 August 2006 the Šibenik Municipal Court invited the applicant to submit medical documentation noting the progress of his treatment. 15. The applicant complied with the order and submitted the documentation on 16 August 2006. The Šibenik Municipal Court then commissioned another medical report. 16. On 13 September 2006 medical expert M.D.G. submitted a further report, indicating that the applicant’s state of health had not stabilised despite the medical treatment he had been receiving and that he could not appear at the hearings. She reiterated that it was not possible to predict the exact period of time in which he would not be able to take part in the proceedings and suggested that his condition be reassessed at appropriate intervals. 17. Another medical report was commissioned on 13 March 2007 from a forensic expert, a cardiologist and a psychiatrist. 18. On 15 April 2007 the medical experts, M.D.G., D.M. and D.B., submitted a joint report. They found that the applicant was not able to take part in the hearings and that a strong triggering factor, such as stress, could lead to a heart attack with a possibly fatal outcome. 19. On 23 April 2007 the Šibenik Municipal Court commissioned a further medical report from medical experts M.D.G., D.M. and D.B. 20. The medical experts submitted their report on 19 June 2007, in which they noted: “... we still consider that the accused’s appearance at the hearing would be a risk factor which could (although it might not) lead to a heart attack, and how that will further develop it is hard to predict, which makes Stipe Petrina theoretically unable to appear at the hearing. However, we consider that his appearance at the hearing would be possible only in the presence of [a] doctor, namely a medical team equipped for prompt intervention in the event of a heart attack at the trial.” 21. The Šibenik Municipal Court scheduled a hearing for 20 November 2007. It summoned the applicant, the applicant’s lawyer, B.B., whose services he had engaged on 11 October 2007, and a cardiologist, A.S., to the hearing. 22. At a hearing on 20 November 2007 the Šibenik Municipal Court noted that the applicant’s defence lawyer had informed it on 19 November 2007 that she could not attend the hearing because she was on maternity leave. The applicant was not properly summoned and did not attend the hearing. The cardiologist, A.S., did not attend the hearing, nor did he excuse his absence. The hearing was adjourned and the next hearing was scheduled for 19 December 2007. 23. On 13 December 2007 the applicant informed the Šibenik Municipal Court that he could not appear at the hearing scheduled for 19 December 2007 due to his medical condition. He referred to the medical expert report of 19 June 2007. 24. On 19 December 2007 the Šibenik Municipal Court, relying on Article 10 of the Code of Criminal Procedure (see paragraph 34 below), dismissed the applicant’s request for adjournment as abusive on the grounds that the necessary medical back-up had been secured by summoning the cardiologist, A.S., to the hearing. The court considered that the applicant was trying to delay the proceedings. It also found that, according to the information available to it, the applicant had taken part in a number of other court proceedings as claimant and private prosecutor. 25. On the same date, the Šibenik Municipal Court held a hearing at which the applicant did not appear and to which his defence counsel had not been summoned. The cardiologist, A.S., again did not attend the hearing, nor did he excuse his absence. The hearing was held in the presence of the Deputy State Attorney and the victim’s representative. After the hearing, at which the trial court examined the evidence and written records of witnesses’ oral statements, it found the applicant guilty as charged and sentenced him to four months’ imprisonment, suspended for one year. 26. On 27 June 2008 the applicant lodged an appeal before the Šibenik County Court (Županijski sud u Šibeniku) against the decision to hold a hearing in his absence. The applicant complained that he had not been able to appear at the hearing owing to his medical condition and that the trial court’s findings that he had taken part in a number of other court proceedings had been unsubstantiated and untrue, as while he had been a party to the other proceedings he had never taken part in the trials. 27. On 17 and 18 July 2008 the applicant lodged further statements of appeal before the Šibenik County Court asking that court to quash the first-instance judgment and to order a retrial. He reiterated that the hearing of 19 December 2007 had been held in his absence, even though he had not been able to appear at the hearing owing to his medical condition. He also complained that the necessary medical back-up at the hearing had not been ensured, as a medical team had never been obtained and the cardiologist, A.S., had twice failed to attend the hearings. Moreover, the defence had never been informed that a back-up medical team would be provided, and had the trial court considered that he was abusing his procedural rights, it should have ensured that he had legal representation at the trial. 28. During the appeal proceedings, the Šibenik County State Attorney’s Office (Županijsko državno odvjetništvo u Šibeniku), which represented the prosecution case on appeal, asked the Šibenik County Court to allow the applicant’s appeal and to order a retrial. 29. On 10 October 2008 the Šibenik County Court, in closed session, without holding a hearing, dismissed all the appeals and upheld the first-instance judgment. That court found that the applicant had been abusing his procedural rights and that he had been doing nothing more than trying to delay the trial. 30. On 10 February 2009 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining that the hearing before the first-instance court had been held in his absence. 31. On 29 April 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. | 1 |
test | 001-161371 | ENG | RUS | COMMITTEE | 2,016 | CASE OF SHURYGINA AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 7. On various dates the applicants brought civil actions against the Ministry of Finance of the Russian Federation, seeking to recover the monetary value of State promissory notes for purchases of Russianmade cars. 8. The first-instance courts found in the applicants’ favour. Those judgments were upheld on appeal and became final. They were subsequently quashed by supervisory review courts upon applications lodged by the Ministry of Finance on the grounds of incorrect application of substantive law (for more details, see the Appendix). 9. All the judgments in the applicants’ favour remained unenforced until the date of their quashing. | 1 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.