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test | 001-150572 | ENG | POL | ADMISSIBILITY | 2,014 | WASIEWSKA v. POLAND | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicant, Ms Jadwiga Wasiewska, is a Polish national, who was born in 1936 and lives in Bydgoszcz. She was represented before the Court by Mr A. Drozd, a lawyer practising in Bydgoszcz. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1997 the applicant and her husband T.W. divorced. The applicant submitted that prior to the divorce her former husband had thrown her out of their flat. He changed the locks and prevented the applicant from entering to take personal items belonging to her, their daughter and granddaughter. 5. On 30 April 2002 the applicant and her former husband reached a friendly settlement as regards the division of their marital property, i.e. the flat. The applicant became the sole owner of the flat against the payment to T.W. of 32,000 Polish zlotys (PLN) until 2 September 2002. Her former husband retained the right to stay in the flat until that date. However, T.W. made it impossible for the applicant to sell the flat so that she could have the money to pay him his share. 6. The applicant’s former husband obtained an enforcement order against the applicant with the result that part of her retirement pension was seized by the bailiff to help pay off her debt. She was also obliged to pay half of the maintenance costs for the flat. 7. In 2006 the applicant brought a civil case for eviction against her former husband. On 22 September 2008 the Bydgoszcz District Court allowed the applicant’s action and ordered the eviction of T.W. At the same time it ordered that the defendant be allocated social housing by the municipality. The execution of the judgment was to be stayed until he had been allocated social housing. 8. The applicant appealed, complaining about the part of the court’s judgment obliging the municipality to award her former husband social housing. Her appeal was dismissed on 9 April 2009 by the Bydgoszcz Regional Court. The appeal lodged by T.W. was rejected for formal reasons. 9. On 29 March 2010 the Bydgoszcz District Court issued an order confirming that the judgment of 22 September 2008 was final. 10. Subsequently T.W. instituted proceedings in which he sought to quash the enforcement order arguing that the flat allocated to him by the municipality had been in bad condition. On 29 June 2011 the Bydgoszcz Regional Court finally dismissed his application to quash the enforcement order. 11. On an unspecified date the applicant made use of a remedy provided by the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and 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”). She complained about the length of the enforcement proceedings conducted by the court bailiff. 12. On 9 November 2011 the Bydgoszcz Regional Court dismissed the complaint finding that there had been no delay on the part of the bailiff. 13. The applicant’s former husband refused two offers of social housing in 2010. In 2012 he was offered another flat which had to be refurbished before he could move in. 14. The applicant submitted that in July 2013 T.W. finally moved out and she regained possession of her flat. 15. On an unspecified date in 2009 the applicant brought a civil claim for damages against her former husband, T.W. She relied on section18 (1) of the 2001 Act claiming that T.W. had been living in her flat without legal title to it. She sought compensation from him in the amount calculated in reference to the cost of rent for a similar apartment on the free market. 16. On 15 April 2001 the Bydgoszcz DC partly granted the action and awarded the applicant PLN 17,600 (approximately 4,200 euros (EUR)) in compensation for T.W.’s use of the flat without legal title. The court established that since the eviction order the applicant’s former husband had no right to stay in the flat and since he continued to live there he had been liable to pay compensation. T.W. appealed. 17. On 22 September 2011 the Bydgoszcz Regional Court allowed the appeal and dismissed the applicant’s action. The court agreed with the lower court’s findings as to the facts of the case, in particular that T.W. had no right to stay in the flat. However the appellate court noticed that since T.W. had had the right to social housing, on the basis of section 18 (3) of the 2001 Act, he had been liable to pay only his share of rent. There was no legal basis to order him to pay compensation on the basis of free-market calculations. Since the applicant sought compensation and not the reimbursement of half of the maintenance costs, the court dismissed her action. 18. The December 2006 Amendment to the Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code (Ustawa o ochronie praw lokatorów, misszkaniowym zasobie gminy I o zmianie kodeku cywilnego, “the 2001 Act”) added a new provision (subsection (5)) to section 18, which makes the municipality liable, under the rules of tort, for any damage sustained by the landlord on account of the municipality’s failure to provide the tenant with social housing. This provision reads: “(5) If the municipality has not provided social housing to a person who is entitled to it by virtue of a judgment, the landlord shall have a claim for damages against the municipality on the basis of Article 417 of the Civil Code.” Consequently, the municipality’s failure is statutorily deemed to be an “unlawful omission” within the meaning of Article 417 of the Civil Code. 19. Article 417 of the Civil Code reads in so far as relevant: “1. The State Treasury, municipality or another legal person wielding public power by virtue of the law shall be liable for damage caused by an unlawful act or omission in the exercise of that power.” 20. The Supreme Court, in its ruling of 25 June 2008 (no. CZP 46/2008) concerning a claim for damages under section 18(5) of the 2001 Act read in conjunction with Article 417 of the Civil Code, confirmed that a landlord was entitled to full compensation for any damage sustained on account of a municipality’s failure to provide social housing to a tenant. 21. Pursuant to section 18 (3) of the 2001 Act, as long as the municipality has not supplied social housing, the tenant pays the same amount of rent that he would have paid if the tenancy had not been terminated. According to section 18 (1) and (2), other tenants in respect of whom the tenancy has terminated and who have not vacated the flat pay compensation to a landlord corresponding to the market-related rent that the landlord could normally receive. If such compensation does not cover losses incurred by a landlord, he may seek supplementary compensation. | 0 |
test | 001-151007 | ENG | ROU | CHAMBER | 2,015 | CASE OF COJOCARU v. ROMANIA | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1971 and lives in Paşcani. 6. The applicant is a journalist and chief editor of the local weekly magazine, Orizontul. 7. The applicant wrote an article about R.N., the mayor of Paşcani, which appeared in the 15-21 February 2005 edition of that magazine under the headline “Resignation of honour”, listing ten points advocating the mayor’s resignation. The article contained references to the mayor’s activities, with wording such as “Twenty years of local dictatorship”; “[R.N.] at the peak of the pyramid of evil”; “in Paşcani, only those who subscribe to [R.N.]’s mafia-like system can still do business”; “we have been ruled for over twenty years by a former communist who still has the reflexes of a county chief secretary”; and “[R.N.] does not represent the interests of the [local community]”. 8. On the same page, the applicant wrote a news piece about an investigation into the mayor’s activities. He quoted a statement by a politician about an ongoing investigation into some of the mayor’s activities by the prefectural standards board. The article also contained a statement by another politician and the mayor’s point of view on the investigation. 9. On 14 March 2005 R.N. lodged a criminal complaint with the Paşcani District Court, accusing the applicant of insult and defamation. He also sought civil damages. 10. On 19 December 2005 the court convicted the applicant of defamation and ordered him to pay a criminal fine of 10,000,000 Romanian lei (ROL) and to pay to R.N., together with the publishing company, ROL 30,000,000 in compensation for non-pecuniary damage. It acquitted him of the accusations of insult. 11. The court noted that the applicant had submitted official documents proving that there had been irregularities in the activities of the public administration, but considered that that proof alone was not sufficient to justify making those statements of fact. The court reiterated that a journalist had a general obligation to act in good faith: “Although irregularities have been found in the activity of the Pașcani Agency for the Administration of Markets, this fact alone did not entitle the applicant to write that the victim was a ‘Mafioso who received bribes from businessmen’ in order to create facilities for them, as there is no evidence to support these statements. According to the Code of Press Ethics the right to freedom of expression comes with duties and responsibilities, the journalists having an obligation to act in good faith, in order to provide accurate and credible information.” In establishing the sentence, the court took into account the applicant’s criminal record, as he had previously been convicted of insult and defamation. 12. The applicant appealed on points of law, arguing, in particular, that the statement that had brought about his conviction was not an imputation of a crime, as required for the existence of calumny. Moreover, he pointed out that he had not written the sentence quoted by the District Court, namely that the mayor was a Mafioso who received bribes from local businessmen. 13. In a final decision of 27 April 2006 the Iaşi County Court upheld the previous decision. The court of appeal confirmed the lower court’s finding and explained that the expression “subscribe to ... a mafia-like system” was defamatory of the victim. It further reiterated the journalist’s obligation to act in good faith, and took the view that in not limiting his assertions to what was necessary to inform the public, the applicant had made value judgments intended to defame the mayor. It also noted that the applicant had failed to abide by the warnings given to him by way of previous convictions for similar facts and had persisted in his criminal behaviour. | 1 |
test | 001-163637 | ENG | RUS | ADMISSIBILITY | 2,016 | A.R. v. RUSSIA | 4 | Inadmissible | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 1. The applicant, Mr A.R., is a Tajikistani national, who was born in 1976. 2. The applicant, who has been granted legal aid, is represented before the Court by Ms I. Sokolova, a lawyer practising in Ivanovo. 3. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. 4. According to the applicant, he joined the Democratic Party of Tajikistan in 1996. At that time it was, and apparently it remains, in opposition to the ruling regime. Following a murder attempt in 1997 against the Tajikistani President, some members and supporters of the party were reportedly arrested and tortured. Allegedly, the applicant was also arrested during that time. He submitted that he had been tortured by way of blows to his hands, back and head, causing loss of vision in his right eye. He had declined the offer to collaborate with the Secret Service on the party members and their activities. The party has now split into two factions: one is apparently loyal to the ruling regime, while the other is led by supporters of the former leader of the party, Mr Iskandarov (see Iskandarov v. Russia, no. 17185/05, 23 September 2010), who have been persecuted. 5. Fearing persecution, the applicant left for Kazakhstan. Allegedly, in 2000 the authorities were looking for him and arrested his brother. The applicant went back to Tajikistan between 2000 and 2004 (allegedly, remaining in hiding). In 2004 he obtained a new passport from the Tajik authorities (allegedly, through an acquaintance). 6. The applicant arrived in Russia in 2007. It appears that at the time Tajik nationals did not require a visa to enter Russia. 7. Since 2007 the applicant has been living in Russia in an unregistered relationship with Ms Z. 8. The applicant and Z. have two children together, born in 2008 and 2011. It appears that Z.’s first child, who was born in 1996 from her previous relationship, has been residing with Z. and the applicant. Z. and the children are Russian nationals. 9. In May 2011 the Migration Authority of the Ivanovo Region granted the applicant a temporary residence permit valid until May 2014. 10. In December 2011 Mr Ts. informed the Ivanovo office of the Federal Security Service (“the FSB”) that the applicant had given him several publications about Hizb-ut-Tahrir, a prohibited organisation in Russia. 11. In November 2012 the Ivanovo regional prosecutor applied to the Oktyabrskiy District Court, Ivanovo (“the District Court”), asking it to classify those publications as “extremist”. The court granted his request. The applicant was not party to the proceedings. 12. On 13 February 2013 the FSB interviewed the applicant, having informed him of his right not to testify against himself. According to the interview record, the applicant stated as follows: in 2002-03 he had studied Islam with his friend, reading together various writings, inter alia, calling for the creation of an Islamic Caliphate; in 2007 he learnt that the Tajikistani Security Service had arrested his friend and some of his relatives; fearing arrest himself, he had moved to Moscow where he obtained a work permit; there he met two Kyrgyz nationals who appeared to be supporters of Hizb-ut-Tahrir; a year later one of them provided the applicant with some publications, which he then gave to Ts. 13. According to the applicant, an FSB officer told him that the Tajik authorities “were looking for him”. 14. The FSB wrote to the regional migration authority recommending that the applicant’s residence permit be annulled. 15. On 27 February 2013 the authority annulled the residence permit on the basis of section 7 of the Foreigners Act (see paragraph 40 below). The applicant was informed that he could seek judicial review of the annulment decision or re-apply for a temporary residence permit in a year’s time; that he was obliged to leave Russia within fifteen days; and that if he failed to leave the country he would be deported. 16. The applicant did not seek judicial review of the annulment decision. However, he appointed a lawyer and they both considered that given the imperative indication in section 7 of the Foreigners Act, there would be no prospect of success in claiming reinstatement of the residence permit on account of a risk of death or torture if the Tajik authorities became aware of the findings made by the Russian FSB in respect of the applicant. Instead, in December 2013 the applicant decided to attempt to regularise his stay in Russia by applying for refugee status (see paragraph 23 below). For this purpose, his lawyer obtained access to the case file concerning the residence permit. According to the lawyer, the file contained only the FSB’s letter to the migration authority (see paragraph 14 above). 17. On 5 March 2014 the FSB issued the applicant with a “warning” (предостережение) against “unacceptable actions that create a basis for committing crimes falling within the FSB’s competence” (see paragraph 44 below). The warning read as follows: “[The applicant] has expressed his intention to take part in the activities of the international terrorist organisation Hizb-ut-Tahrir, which has been classified as ‘terrorist’ by the Russian Supreme Court. The indicated actions create a basis for committing crimes under Article 205.5 of the Criminal Code”. 18. Subsequently, the applicant denied membership of Hizb-ut-Tahrir or participation in its activities. 19. The applicant’s lawyer challenged the “warning”, indicating that the FSB’s allegations in respect of the applicant were unsubstantiated; he had never been a member of the prohibited organisation; and none of his previous actions or utterances had indicated an intention to take part in the activities of that organisation. The lawyer also challenged the “warning” as being an unsubstantiated and disproportionate interference with the applicant’s private life, exposing him to a risk of removal to Tajikistan and of ill-treatment there on account of the Tajik authorities’ awareness of the FSB’s suspicion in respect of him. 20. On 20 May 2014 the District Court upheld the “warning” on judicial review. The court stated that Ts.’s and the applicant’s own testimonies confirmed that the applicant had had contacts with people who were implicated in the activities of the prohibited organisation; as confirmed by Ts., the applicant had handed over to him publications that had an “extremist” content, as then confirmed by a court. The Russian legislation prohibited dissemination, possession and production of extremist material. In certain circumstances those actions constituted an offence; an extremist activity was also punishable in criminal law, civil law and otherwise. The “warning” had not violated any of the applicant’s rights or freedoms. 21. The applicant appealed, arguing that nothing in his own statement to the FSB had disclosed an intention to take part in the “activities of the prohibited organisation” or elements of corpus delicti under Article 205.5 of the Russian Criminal Code; the impugned events dated back to December 2010 while the “warning” was meant to concern some continuing activity; the applicant had no knowledge of the “extremist” content of the publications, which was only subsequently established by a court in proceedings to which he had not been a party. The applicant concluded that in substance the proceedings against him and the resulting “warning” amounted to a finding of criminal guilt without either the benefit of a judicial procedure or the attending safeguards of criminal proceedings, including the presumption of innocence (Articles 49 and 118 of the Russian Constitution). 22. On 13 August 2014 the Ivanovo Regional Court dismissed the applicant’s appeal. The appeal court discarded as “farfetched” the arguments under Articles 49 and 118 of the Constitution and endorsed in substance the reasoning of the District Court. On an unspecified date, the Regional Court rejected the applicant’s subsequent appeal on points of law. It appears that in March 2015 the Supreme Court of Russia rejected the second appeal on points of law. 23. After the annulment of his residence permit, in December 2013 the applicant applied to the regional migration authority seeking refugee status. 24. The applicant submitted that as an ordinary member of the Democratic Party of Tajikistan, he had attended meetings and complied with the leaders’ orders; after the attempted assassination of the Tajik President in 1997, he had been arrested and tortured (blows to his fingers with a gun handle and blows to his spine and head); he had left for Kyrgyzstan and had then returned to Tajikistan, where he had stayed in different towns until late 2006. 25. By decision of 14 March 2014 the regional migration authority dismissed the applicant’s application for refugee status and ordered him to leave Russia within three days. 26. In reply to a request from the applicant’s lawyer, on 6 May 2014 the Moscow office of the United Nations High Commissioner for Refugees (“the Moscow UNHCR office”) issued an information document. Referring to some of the findings made in the 2013 United Nations report on Tajikistan and some other reports, the UNHCR office made the following comments: “In view of the numerous violations of human rights and fundamental principles of international law by the Tajik authorities, the widely used practice of torture and cruel treatment at the hands of law enforcement officers, in particular with the aim of extracting confessions in criminal cases ... the UNHCR considers that people who are suspected in relation to political activities of a religious nature run a real risk of persecution in the form of torture in Tajikistan ... Therefore, having regard to the international instruments ratified by Russia, in no circumstances should Mr R. be extradited, as he is seeking asylum on account of a risk of torture if returned to the country of nationality. We hope that this information will be taken into account during the examination of your client’s case.” 27. The applicant sought judicial review of the refusal to grant refugee status, contesting the reliance on the document of 14 January 2014 as the migration authority’s only source of information about Tajikistan. He referred to the Court’s findings in the Iskandarov judgment mentioned above and a number of other sources. 28. By a judgment of 8 May 2014 the District Court upheld the decision of 14 March 2014. The court stated, inter alia, that had the applicant had genuine reasons for seeking asylum, he would have made an application immediately after his arrival in Russia. The applicant appealed. On 21 July 2014 the Regional Court dismissed the applicant’s appeal. 29. Having been unsuccessful with his application for refugee status (see paragraph 25 above), in April 2014 the applicant applied to the regional migration authority for so-called “temporary asylum” (see paragraph 43 below). 30. On 10 July 2014 the authority dismissed the application. On 3 October 2014 the Federal Migration Authority upheld the lower authority’s decision. 31. The applicant sought judicial review of the refusal of temporary asylum. He argued that the migration authority had not assessed whether the FSB’s warning on suspicion that he might commit a criminal offence of an extremist nature substantiated his argument that he was at risk of illtreatment at the hands of the Tajik authorities, who were aware of the FSB’s warning. 32. On 11 December 2014 the District Court upheld the decision to refuse temporary asylum. On 25 February 2015 the Ivanovo Regional Court dismissed an appeal lodged by the applicant. On 29 June 2015 the same court dismissed a subsequent appeal on points of law lodged by the applicant. The applicant lodged a second appeal on points of law before the Supreme Court of Russia, which dismissed that appeal on 14 September 2015. 33. The applicant unsuccessfully sought an extension of his permission to stay in the country pending appeals against the decision to refuse him temporary asylum. On 8 September 2014 the District Court upheld the decision. On 17 November 2014 the Regional Court upheld the judgment on appeal. It appears that a subsequent appeal on points of law lodged by the applicant was dismissed in April 2015. 34. Allegedly, the applicant has been subjected to covert supervision by law-enforcement officials wearing plain clothes; questions about him were raised with his neighbours; and his relatives in Tajikistan were questioned and their homes searched. Since February 2015, the applicant has not left his home, fearing abduction with a view to forcibly transferring him to Tajikistan. 35. In May 2015 the applicant’s lawyer asked the migration authority about their intention to expel the applicant. No reply has been received. 36. It appears that the applicant has applied to the UNHCR office for help with resettlement. That request is pending. 37. According to the applicant, on an unspecified date in 2015, officers from the Tajik Security Service arrested his brother; he was subsequently released but was required to assist the authorities in obtaining the applicant’s return to the country. 38. It appears that the applicant is currently considered as a foreigner “temporarily present in Russia”, which, according to him, gives him an opportunity to move within the region but not to work. 39. The Foreigners Act (Federal Law no. 115-FZ of 25 July 2002) provides that a foreigner can be temporarily present on Russian territory for a period specified in a visa or, for foreign nationals not required to obtain a visa, for ninety days unless otherwise provided for by the Act (section 5). 40. Section 7 of the Foreigners Act requires that a temporary residence permit be annulled if the foreigner (i) has expressed himself in favour of a radical change in the constitutional regime of the Russian Federation or, by way of other actions, poses a threat to the security of the Russian Federation or its citizens; (ii) has made financial contributions or planned terrorist or extremist acts, has provided assistance to others in the commission of such acts, or has supported terrorist (extremist) activities by way of other actions. 41. After the annulment of a temporary residence permit or a residence permit, the foreigner concerned must leave Russia within fifteen days; failure to do so will lead to deportation (section 31 of the Act). 42. A decision to deport should be taken by a chief officer of the local migration authority (paragraph 6 of the Instruction issued by order no. 240 of 12 October 2009 by the Federal Migration Authority). 43. Section 12 of the Refugees Act provides that temporary asylum may be granted where (i) the foreigner has grounds for acquiring refugee status but only requests a possibility to remain in Russia for some time; or (ii) the foreigner has no grounds for acquiring refugee status but should not be expelled from Russia for “humanitarian reasons”. Having received temporary asylum, the person may not be returned against his will to the country of nationality or the country of habitual residence. 44. Sections 13 and 13.1 of the Federal Security Service Act (Federal Law no. 40-FZ of 3 April 1995) provides that, in the absence of grounds for instituting criminal proceedings, the FSB has competence to issue and inform the person concerned of an “official warning” (официальное предостережение) about unacceptable actions that create conditions for the commission of certain crimes. Such a “warning” is classified as a measure of prevention (мера профилактики) that may be implemented for the purpose of preventing the commission of such criminal offences. | 0 |
test | 001-140655 | ENG | HRV | ADMISSIBILITY | 2,014 | ĐUZEL v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 1. The applicant, Mr Veljko Đuzel, is a Croatian national, who was born in 1959 and lives in Zagreb. He was represented before the Court by Ms L. Kušan, a lawyer practising in Ivanić Grad. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is the owner of a hotel, D., in Baška Voda, a municipality in the coastal part of Croatia, which he bought with a view to first reconstructing it and later on using it commercially. The hotel was built in 1962, according to a building permit issued in the same year, and was registered in the Land Registry. 5. At the relevant time the regulations concerning zoning permits in Baška Voda were the Decision on Adoption of the Makarska Municipality Spatial Plan (Odluka o donošenju Prostornog plana općine Makarska, Official Gazette of the Makarska Municipality, nos. 8/85, 10/90, 6/91, 8/91 and 4/92), a larger central municipality from which the Baška Voda municipality was formed, and the Decision on Rules of Development in Constructed Areas in the Baška Voda Municipality (Odluka o odredbama za provođenje u izgrađenim naseljima na području Općine Baška Voda, hereinafter “the Development Rules”) adopted by the Baška Voda Municipality in 1999 and published in the Official Gazette of the Baška Voda Municipality no. 2/99 on 21 April 1999. According to these regulations and the relevant domestic law (see paragraph 23 below), a zoning permit (lokacijska dozvola) was required before any construction could be commenced on the buildings in the area concerned. 6. On the basis of the above zoning documents, on 26 July 2001 and 2 August 2001 the owners of the properties adjacent to the applicant’s hotel obtained zoning permits from the Makarska State Administration Office for Spatial Development, Communal Affairs, Construction and Ecology (hereinafter: the “Makarska State Administration Office”) for renovation and reconstruction of their buildings. 7. On 16 October 2001 the applicant applied to the Makarska State Administration Office for a zoning permit as required by the relevant legislation before reconstruction works could be commenced. The applicant submitted all relevant documents concerning his ownership of the hotel and the reconstruction project. In his project the applicant indicated that the hotel consisted of a ground-floor, three upper floors and in one part an additional fourth floor whereas he wanted to build a basement and a loft and to extend further the fourth floor. 8. On 17 April 2003, while the applicant’s request was still pending, the Ministry of Ecology and Spatial Development (Ministarstvo zaštite okoliša i prostornog uređenja, hereinafter “the Ministry”) ordered the Baška Voda Municipality to set aside (staviti izvan snage) the Development Rules, after finding that they had been adopted contrary to the relevant law. The Ministry found that the Development Rules merely reflected provisions of a similar document of the Makarska Municipality which had been already found by the Ministry to be contrary to the relevant law. 9. On 9 May 2003 the Baška Voda Municipality adopted a Decision setting aside the Development Rules and published it in the Official Gazette of the Baška Voda Municipality no. 5/2003. 10. Thereafter, on 4 July 2003 the Makarska State Administration Office dismissed the applicant’s request for a zoning permit. The relevant part of the decision reads: “Under section 34 § 2 of the Spatial Development Act (Official Gazette nos. 30/94 and 68/98) the zoning permit is an administrative decision which must be issued on the basis of zoning documents, special law and other relevant acts, in accordance with the law. Given that at the moment the Baška Voda Municipality does not have the relevant zoning documents, it follows, and in view of what was said above, that zoning permits for renovation or reconstruction of buildings cannot be issued until the adoption of the municipal spatial plan or some related spatial plan.” 11. On 18 July 2003 the applicant lodged an appeal with the Ministry, pointing out that he had lodged his request for a zoning permit on 16 October 2001 and that his request had been accompanied by all relevant documents, which followed from the fact that the Makarska State Administration Office had not dismissed his request as unsubstantiated or ill-founded. Instead, his request had been dismissed only because the Baška Voda Municipality had not adopted a spatial plan, despite the fact that he had lodged his request when the relevant zoning documents existed. He therefore considered that the law and the zoning documents which existed and were relevant at the time when he had lodged his request, should be applied. 12. On 11 September 2003 the Ministry quashed the first-instance decision and remitted the case. It instructed the Makarska State Administration Office to determine whether a zoning permit could be granted on the basis of the zoning documents adopted for the wider area. 13. In the resumed proceedings, on 18 February 2004 the Makarska State Administration Office again dismissed the applicant’s request. It found that the zoning document for the larger area, that is, the SplitskoDalmatinska County Spatial Plan (Prostorni plan Splitskodalmatinske županije, adopted on 23 July 2002, published in the Official Gazette of Splitsko-Dalmatinska County no. 1/2003), prescribed adoption of the spatial plan of the Baška Voda Municipality, and itself contained no provisions on the basis of which a zoning permit could be granted. 14. On 19 April 2004 the applicant lodged an appeal before the Ministry, arguing that the Makarska State Administration Office had failed to comply with the instruction of the Ministry of 11 September 2003. He considered that it should be established whether a zoning permit could be issued on the basis of a spatial plan which covered an even wider area than that of the county-wide spatial plan. He pointed out that he should not bear burden for the failure of the Baška Voda Municipality to adopt a spatial plan. He also considered that a zoning permit should be issued on the basis of the zoning documents which had existed at the moment when he had lodged his request. 15. On 2 June 2004 the Ministry dismissed the applicant’s appeal and upheld the first-instance decision. It endorsed the finding of the Makarska State Administration Office, that at present there was no zoning document on the basis of which a zoning permit for property located in Baška Voda could be granted. 16. The applicant then brought an action in the Administrative Court (Upravni sud Republike Hrvatske) on 27 July 2004 contesting the decisions of the administrative authorities. 17. On 3 July 2008 the Administrative Court dismissed the applicant’s action. It held that the Splitsko-Dalmatinska County Spatial Plan provided for an obligation to prepare and adopt a spatial plan for the Baška Voda Municipality, but that such plan had not yet been adopted, and that therefore the applicant’s request for a zoning permit could not be granted. 18. On 23 October 2008 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske). He pointed out that he had submitted his request for a zoning permit at the time when the zoning documents had existed for the Baška Voda Municipality. However, it had taken the administrative authorities almost two years to decide on his request, and in the meantime the zoning documents had been set aside and a spatial plan had not yet been adopted. Therefore, given that there had been a legal gap, the administrative authorities had been obliged to apply the law and the zoning documents which had existed at the time when he had lodged his request. He contended that this had done significant damage to his legitimate interests and that there had been no legitimate public interest justifying the refusal to grant him a zoning permit, since such permits had been issued for a number of properties adjacent to his hotel. 19. In the meantime, the Baška Voda Municipality had proceeded with the adoption of a spatial plan. It first initiated a public debate in which various experts, public officials and interested citizens were able to put forward all their arguments, proposals and objections. The municipal executive authorities then accepted or rejected the proposals and objections and drafted a provisional spatial plan. The provisional draft was afterwards submitted for approval to the Ministry, the competent Splitsko-Dalmatinska County authorities, the State Administration for the Ecology (Državna uprava za zaštitu prirode), the Ministry of Culture (Ministarstvo kulture), the Defence Ministry (Ministarstvo obrane), the public water utilities authorities, the Ministry of Agriculture, Fishing and Rural Development (Ministartsvo poljoprivrede, ribarstva i ruralnog razvoja), the Ministry of Regional Development (Ministarstvo regionalnog razvoja) and the competent seaport authority. Only after all the approvals were obtained the final draft spatial plan was submitted to the Baška Voda Municipal Assembly which adopted it on 2 April 2009 (Official Gazette of the Baška Voda Municipality no. 4/2009). 20. After the adoption of the spatial plan the applicant did not submit a new request for a zoning permit. 21. On 18 March 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The Constitutional Court’s decision was served on the applicant’s representative on 28 April 2010. 22. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010) read as follows: “The right of ownership shall be guaranteed ...“ 23. The relevant provisions of the Spatial Development Act (Zakon o prostornom uređenju, Official Gazette nos. 30/1994, 68/1998, 61/2000, 32/2002 and 100/2004) read: Section 24 “(1) A municipal spatial plan shall be adopted by the municipal council, after the state administration office has confirmed that it is compatible with the county spatial plan ... Section 34 “(1) Any spatial intervention must be in accordance with zoning documents, relevant law and any zoning permit. (2) A zoning permit is an administrative decision which must be issued on the basis of zoning documents, special law and other relevant acts, in accordance with the law ...” Section 47 “The inspection of individual and general acts, conditions and manner of work of relevant legal and physical persons, and the enforcement of measures under this Act, shall be conducted by an Inspection of the Ministry [of Ecology, Spatial Development and Construction].” Section 49 “(1) The inspector shall order the local authority to correct irregularities and/or any unlawfulness in the report or planning [of spatial development], found in the inspection. (2) If the local administration fails to comply with the order under paragraph 1 of this section, the Ministry shall, upon a request of the Inspector, set aside the report or plan of measures [for spatial development].” 24. The Spatial Development Act enacted on 14 April 1994 (Official Gazette no. 30/1994), in section 57 provided for municipal spatial plans adopted under the previous legislation to be applied until new zoning documents were adopted, and in any event no longer than five years from the moment when the Act entered into force. This time-limit elapsed on 23 April 1999. 25. The Amendments to the Spatial Development Act of 20 May 1998 (Zakon o izmjenama i dopunama Zakon o prostornom uređenju, Official Gazette no. 68/1998) in section 52 extended the period for adoption of municipal spatial plans to 31 December 2000. 26. The Amendments to the Spatial Development Act of 1 July 2000 (Zakon o izmjenama i dopunama Zakon o prostornom uređenju, Official Gazette no. 61/2000) in section 3 extended the period for adoption of municipal spatial plans to 30 March 2002. 27. Section 37 of the Amendments to the Spatial Development Act of 28 July 2004 (Zakon o izmjenama i dopunama Zakon o prostornom uređenju, Official Gazette no. 100/2004) extended the period for adoption of municipal spatial plans to 31 December 2005. 28. Section 347 of the Spatial Development and Construction Act of 1 October 2007 (Zakon o prostornom uređenju i gradnji, Official Gazette no. 76/2007) extended the period for adoption of municipal spatial plans to 31 December 2007, and expressly prohibited the grant of zoning permits in the absence of relevant zoning documents. | 0 |
test | 001-155001 | ENG | BGR | CHAMBER | 2,015 | CASE OF NEDYALKOV AND OTHERS 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;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev | 6. The applicants were born in 1923, 1948, 1957 and 1924 respectively. The fourth applicant lives in the village of Rogachevo, the second applicant lives in the village of Obrochishte and the third applicant lives in Varna. The first applicant also lived in Rogachevo. 7. A predecessor of the applicants had owned agricultural land in the village of Kranevo, which had been collectivised after 1945. 8. Following the adoption of the Agricultural Land Act (“the ALA”, see paragraph 16 below) in 1991, the fourth applicant, on behalf of his predecessors’ heirs, sought the restitution of land totalling 15,000 square metres. In a decision of 19 June 1995, the Balchik agricultural land commission partially allowed the request, refusing to restore the heirs’ rights to 9,210 square metres of land which had been either taken for urban development or transferred to third parties. 9. Upon an appeal lodged by the fourth applicant, in a final judgment of 7 December 1995 the Balchik District Court quashed the relevant part of the land commission’s decision of 19 June 1995. It noted, in particular, that the public works for which parts of the land at issue had been taken had not been completed, and that in so far as other parts of the land had been transferred to third parties, there was no bar to restitution as the third parties had not carried out any construction work. On that basis the District Court recognised the heirs as the “owners” of all of the land claimed by them. 10. In execution of the above judgment, on 19 February 1996 the land commission issued another decision, restoring to the heirs, inter alia, in its “actual boundaries”, a plot of 1,180 square metres described as “plot no. 891, district 23, under the cadastral plan of Kranevo of 1950”. On 29 July 1996 the heirs obtained a plan of that plot. After agreeing as to the partition of the restituted land, the plot at issue was allocated to the fourth applicant and his sister (who after her death in 2004 was succeeded by the remaining applicants, namely her husband and her sons). On 30 September 1996 the fourth applicant and his sister obtained a notarial deed. 11. However, the plot was in actual fact held by several private persons, having been transferred in 1972 by the agricultural co-operative of the time to the predecessors of a certain Ms D.S. in exchange for another plot. In 1996 Ms D.S. had sold a share of the plot to a certain Ms E.H. and Mr N.R. 12. On 28 March 1997 the fourth applicant and his sister brought a rei vindicatio action against Ms D.S., Ms E.H. and Mr N.R., claiming that the 1972 transfer of the property and the subsequent sale could not have prejudiced their own rights. 13. The action was examined by three levels of jurisdiction and disallowed in a final judgment of the Supreme Court of Cassation of 1 June 2005. The domestic courts took note of the Balchik District Court’s final judgment of 7 December 1995, but found that they were competent to exercise an “indirect judicial review” (косвен контрол) of it. The courts found further that the documents describing the plot, namely the Balchik land commission’s decision of 19 February 1996 and the notarial deed of 30 September 1996, referred to “plot no. 891, district 23 under the cadastral plan of Kranevo of 1950”. However, there existed no cadastral plan dating from 1950 and the current plans, the last of which dated from 1984, did not show a plot bearing that number. The Balchik District Court and the land commission had thus restored the claimants’ rights to “a non-existent plot under a non-existent plan”. 14. In addition, the domestic courts found that the defendants had validly obtained title to their plot pursuant to the 1972 exchange and the 1996 contract of sale. Accordingly, they were entitled to hold the land as its owners. 15. Following the above developments, the applicants have not sought to obtain compensation in lieu of restitution in kind, a possibility provided for under the relevant provisions of the ALA. | 1 |
test | 001-146044 | ENG | POL | CHAMBER | 2,014 | CASE OF AL NASHIRI v. POLAND | 2 | Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 2+P6-1 - Right to life (Article 2-1 - Death penalty;Life) (Article 1 of Protocol No. 6 - Abolition of the death penalty;Abolition of the death penalty-{general});Violation of Article 3+P6-1 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Article 1 of Protocol No. 6 - Abolition of the death penalty;Abolition of the death penalty-{general});Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 41. The applicant was born in 1965. He is currently detained in the Internment Facility at the United States Guantánamo Bay Naval Base in Cuba. 82. The facts of the case may be summarised as follows. 83. At the end of October 2002 the applicant was captured in Dubai, in the United Arab Emirates. By November 2002, he was transferred to the custody of the CIA. This fact is mentioned in paragraph 7 of the 2004 CIA Report: “7. [REDACTED] By November 2002, the Agency had Abu Zubaydah and another high-value detainee, Abd Al-Rahim Al Nashiri, in custody [REDACTED] and the Office of Medical Services (OMS) provided medical care to detainees.” 84. Subsequently, US agents took him to a secret CIA prison in Afghanistan known as the “Salt Pit”. During his detention, the interrogators subjected him to prolonged stress standing positions, during which his wrists were shackled to a bar or hook in the ceiling above the head for at least two days. 85. After a brief stay at the “Salt Pit”, US agents took him to another secret CIA prison in Bangkok, Thailand, code-named “Cat’s Eye” (often written as one word “Catseye” in CIA documents), where he remained until 4 December 2002. Mr Abu Zubaydah was detained in the same facility throughout the relevant time (see Husayn (Abu Zubaydah) v. Poland, no. 7511/13, judgment of 24 July 2014, §§ 86 and 89). At this site, the interrogations of both applicants were videotaped. 86. According to the 2004 CIA Report, at that black site the CIA subjected the applicant to the EITs (see also paragraphs 53–61 above) from 15 November 2002 until 4 December 2002. In the chapter “Detention and Interrogation Operations at [NAME REDACTED]”, which is in most part redacted, paragraphs 74-76 read: “ 74. [REDACTED] psycholgist/interrogators [REDACTED] led each interrogation of Abu Zubaydah and Al-Nashiri where EITs were used. The psychologist/interrogators conferred with [REDACTED] team members before each interrogation session. Psychological evaluations were performed by [REDACTED] psychologists. 377. The Government did not contradict the facts as related by the applicant. In their written observations filed on 5 September 2012, they submitted that until the criminal investigation in Poland had been terminated they reserved their right to comment on and rectify the facts of the case as supplied to them when they were given notice of the application. In their pleading of 15 March 2013 they stated the following: “the Polish Government do not contest in the proceedings before the Court the allegations submitted by the applicant’s plenipotentiaries, nor [do they] contest the alleged facts”. At the oral hearing, the Government said that they were not prepared to affirm or negate the facts submitted by Mr Al Nashiri and Mr Abu Zubaydah because they believed that those facts should first be established and evaluated by the Polish judicial system. They added that, in contrast to the case of El-Masri, in these cases the Court was not confronted with two different versions of facts or differences in accounts of facts. Accordingly, in their view, there was no need for the Court to take the role of a first-instance court and to establish the facts of the cases itself before the domestic proceedings had been completed. 378. As regards the documentary and oral evidence obtained by the Court throughout the proceedings, the Government did not at any stage contest the admissibility, accuracy or credibility of the relevant materials and testimonies. Furthermore, at the hearing in camera held on 2 December 2013 (see paragraph 14 above), during which the parties were asked to state their positions on the oral evidence taken and on whether the parties could rely on that evidence at the public hearing, they confirmed that they had no objection to the parties’ referring at the public hearing to the testimony of the experts and the witness. In their words, “this [was] knowledge that [was] already accessible, albeit via other channels, in the public domain anyway”. 379. At the public hearing, in relation to that testimony, the Government drew the Court’s attention to the fact that both Senator Marty and Mr Fava had carried out inquiries which were not judicial proceedings. Those inquiries, they said, were “pre-procedural examinations” instituted for the purpose of corroborating the participation of the European countries in the CIA HVD Programme. They had not dealt with individual cases. In terms of the standard of proof they were not comparable to criminal proceedings. In contrast, the investigation in Poland was being conducted in order to obtain evidence concerning all possible offences, to establish individual perpetrators and to determine whether it was possible to bring an indictment to the court. The Government admitted that the findings of the relevant international inquiries were a source of information about the potential evidence and indicated the direction for subsequent actions to be taken by prosecutors. However, they did not constitute evidence in the strict sense of the word and relying on them would not be sufficient for a prosecutor to bring a charge or indictment against an individual in respect of a specific offence. 380. Lastly, the Government, responding to a question from the Court at the hearing, concerning the injured party status accorded to the applicant and Mr Abu Zubaydah by the investigating prosecutor, explained that for a procedural decision to identify an individual as an injured party in criminal proceedings two elements had to be present. First, the subjective element, that is to say a person must have a sense of having suffered prejudice on account of the commission of an offence. The second, the objective element consisted in an indication that there existed a sufficient level of credibility that an offence had been committed to the detriment of that person in Poland. In the applicant’s case the credibility was sufficiently high for him to be treated as a victim of an offence and the investigation continued in order to determine the extent to which he had been harmed and by whom. 381. The applicant, in his submissions concerning Poland’s knowledge of the HVD Programme, the probative value of the evidence before the Court, the burden of proof and the standard of proof as applicable in the present case stated, in particular, as follows. 382. Numerous documents, including reports prepared by international organisations, recounted that on 4 December 2002 the CIA had transported Mr Al Nashiri on a plane registered N63MU from Bangkok to Szymany airport. The airport was just under an hour’s drive from Stare Kiejkuty. Official documents disclosed by the Polish Border Guard, the 2007 Marty Report and other reports before the Court confirmed that this flight had landed on 5 December 2002 at Szymany airport. Mr Zubaydah’s submissions, which the applicant adopted in so far as they supported his claims, provided further evidence corroborating the fact that he and Mr Al Nashiri had been flown from Thailand to Poland on the same flight. 383. The material before the Court also confirmed that the applicant had been transferred from Poland to Rabat on a plane registered N379P on 6 June 2003. Official documents disclosed by the Polish Air Navigation Service Agency and the Polish Border Guard, the 2007 Marty Report and the CHRGJ Report stated that rendition aircraft N379P had departed from Szymany airport on 6 June 2003 for Rabat with the assistance of the Polish authorities. The oral evidence from experts demonstrated how the Polish authorities had filed false flight plans and assisted in the cover-up of the CIA operations. 384. Evidence before the Court clearly showed that it had been Polish officials who had granted CIA rendition planes licences and overflight permissions as well as special exemptions. It had been the Polish authorities who had guided the planes in to land, and who had cleared the runway and secured the perimeter and grounds of Szymany airport so that detainees like Mr Al Nashiri could secretly be offloaded into vans bound for the secret prison. In the Polish Air Navigation Services Agency, officials had assisted in disguising the existence and exact movements of incoming CIA rendition flights. Polish Border Guard officials had ensured that CIA flights were exempt from normal procedures for incoming foreign passengers. In the Customs Office officials had resolved irregularities in the payment of fees related to CIA operations. The manager of Szymany airport had provided significant information with respect to abnormal procedures allowed for rendition aircraft. The Court had heard expert testimony confirming that after a rendition operation – the very next day – Polish airport employees had been paid cash at a rate far higher than the usual rate. 385. The 2007 Marty Report showed that Polish officials had provided extraordinary physical security by setting up “buffer zones” around the CIA’s detainee operations. The same report confirmed that several high-ranking Polish officials had known about, and had authorised, Poland’s role in the secret CIA prison. The existence of an operational agreement between the Polish Intelligence Agency and the CIA had been mentioned in the 2007 Marty Report and various other material before the Court and had been confirmed by Senator Pinior’s testimony. The agreement had set out detailed rules for running the prison on Polish territory and a provision for what would have to be done if a detainee had died there. Prime Minister Leszek Miller and President Aleksander Kwaśniewski had reportedly received oral reports from Polish intelligence officials about what had been going on in that CIA prison, including on the fact that the United States had been detaining individuals there. 386. Senator Pinior had publicly said that he had information showing that the Polish Intelligence Unit at Stare Kiejkuty had commissioned a local contractor to build a prisoner’s cage. In his testimony to before the Court, he had confirmed that the cage had been built by a Polish company from Pruszków with specifications as to the thickness of the bars and size – the cage had been supposed to be big enough to hold a grown man and a portable toilet. 387. The applicant further stressed that at the fact-finding hearing the Court had heard cogent, credible and consistent evidence from four persons of the highest integrity and the highest professional calibre, who had demonstrated that: 1) there had been a secret CIA prison at Stare Kiejkuty from December 2002 to September 2003; 2) the applicant had been detained in that prison from 5 December 2002 to 6 June 2003; indeed, the fact that the applicant had been granted injured party status in the investigation by a decision which was non-discretionary but mandated by evidence confirmed the fact that the prosecutor was in possession of evidence that that would support his claims; 3) in Stare Kiejkuty the applicant had been tortured and subjected to unauthorised interrogation techniques specifically set out in the 2004 CIA Report; 4) Poland had known, or should have known, of the CIA prison on its territory. It had known because it had been directly involved and entered into a secret agreement with the USA to host that prison; 5) the Polish authorities had displayed a pattern and practice of obscuring the truth, and during the relevant international inquiries there had been an extreme reluctance on their part to disclose what had in fact happened. 388. The applicant concluded that he had met his burden of proof in the present case. In contrast to the “strong, clear and concordant” facts put forward by him, the Polish Government had failed to answer the Court’s questions on the merits. Where, as in the present case, “the events at issue lie wholly, or in large part, within the exclusive knowledge of the authorities”, the burden of proof could be regarded as resting on the authorities to provide a convincing explanation. Where, as here, the authorities had failed to provide a convincing explanation, failed to conduct an effective investigation and failed to furnish the Court with the necessary information, the Court was entitled to draw inferences adverse to the authorities and in favour of the applicant. In addition, unrebutted presumptions of fact led to the conclusion that the applicant’s factual allegations were true. Indeed, the Government had conceded that they had not contested the facts as related by the applicant and his allegations. 389. Referring to knowledge imputable to any Contracting State at the relevant time, AI and the ICJ pointed out, among other things, to the following facts that had been a matter of public knowledge. On 13 November 2001 US President George W. Bush signed a military order authorising the indefinite detention without trial, and without access to any court in the USA or elsewhere, of foreign nationals deemed by the President to be involved in international terrorism. In the same order, he had authorised military commissions, executive bodies in which the ordinary rules of criminal justice would not apply, for the trial of non-US nationals accused of broadly defined terrorism-related offences. On 21 March 2002 the US had published rules for the military commissions, which showed that these were purely executive bodies. Reports of US renditions to secret detention were in the public domain as early as October 2001 and continued through 2003. It was widely disseminated that detentions at the Naval Base in Guantánamo Bay had begun in January 2002, and that by June 2003 there had been about 670 detainees held in that prison. By the same time it was also known that those who had been transferred to Guantánamo had included individuals picked up far from Afghanistan. In major reports issued in April and June 2002 AI had warned that the USA was engaging in arbitrary detainee transfers into and from its custody and that some individuals had disappeared into secret US detention. The 2003 AI report documented that there were over 600 detainees then at Guantánamo and reported on the USA’s recourse to secret detention and transfer of detainees to possible torture in third countries. The report and documents published during 2002 provided further credible evidence of the USA’s use of detention and rendition in the context of the “war on terror”, including the use of undisclosed and incommunicado detention by US forces in Afghanistan. 390. In short, during 2002 and 2003 credible information emerged that the USA had committed and was continuing to commit gross human rights violations, including enforced disappearances by means of arbitrary, incommunicado and secret detention outside US territory as well as secret detainee transfers, in respect of individuals whom the US authorities suspected of involvement in or having knowledge of international terrorism. Thus, by June 2003 any State would have known that the USA was engaging in the use of the death penalty; the secret detention of individuals it suspected of involvement in or having information about international terrorism; the holding of individuals incommunicado or virtually incommunicado in indefinite military detention without charge or trial; and preparations to subject individuals to an unfair trial by military commission, at Guantánamo, or elsewhere, without access to civilian courts, including in respect of individuals facing capital charges. 391. The Court notes that the Government did not take advantage of the opportunity to make comments on the facts as supplied by the applicant and that it was not their intention to contest them. It also notes that they did not challenge the admissibility, accuracy or credibility of documentary and oral evidence obtained by the Court throughout the proceedings (see paragraphs 377-379 above). Consequently, the Court will proceed on the basis of there being no contestation as such by the Government as to the facts of the case as put forward by the applicant and no discernible dispute between the parties as to the evidence from various sources which was admitted by the Court and summarised above (see paragraphs 41-338 above). 392. With respect to the assessment of the facts and evidence gathered in the present case, the Court would first wish to reiterate the relevant principles. 393. The Court is sensitive to the subsidiary nature of its role and has consistently recognised that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Imakayeva, cited above, no. 7615/02, § 113; Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 96, 18 December 2012; and El-Masri, cited above, § 154.) 394. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to the Court’s established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among other examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; and El-Masri, cited above, § 151). 395. While it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; and Aslakhanova and Others, cited above, § 97). 396. Furthermore, the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. According to the Court’s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, for instance as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Imakayeva, cited above, §§ 114-115, ECHR 2006XIII (extracts); El-Masri, cited above, § 152). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, ibid.). 397. The Court observes at the outset that, in contrast to many other previous cases before it involving complaints about torture, ill-treatment in custody or unlawful detention, in the present case it is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (for example, compare and contrast with El-Masri, §§ 16-36 and 156-167; Selmouni v. France [GC], no. 25803/94, §§ 13-24, ECHR 1999V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006IX; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 188-211, ECHR 2004VII). As stated in the application, since the end of October 2002, when the applicant was captured by the CIA in Dubai, he has continually been in the custody of the US authorities, initially in the hands of the CIA in undisclosed detention at various black sites and then, as confirmed by President Bush on 6 September 2006, in the custody of US military authorities in Guantánamo (see paragraphs 71 and 83-127 above). 398. The regime applied to High Value Detainees in CIA custody such as the applicant is described in detail in the CIA documents and also, on the basis, inter alia, of the applicant’s own account, in the 2007 ICRC Report. It “included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention”. The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location (see paragraphs 51, 62-70,101-102 and 281-282 above). 399. It is submitted that since an unknown date in October 2002 the applicant has not had contact with the outside world, save the ICRC team in October and December 2006, the military commission’s members and his US counsel. In this regard, the Court also takes note of the statement by the applicant’s representative at the public hearing: “[The applicant] is gagged from speaking publicly of his own torture in Poland because the United States takes the remarkable position that disclosure of his own memories, observations and experiences of what happened to him would reveal classified sources and methods. In addition, US regulations prevent his US lawyer, Ms Hollander, who is also counsel in this case, from addressing the issues before this Court.” 400. The above circumstances have inevitably had an impact on the applicant’s ability to plead his case before this Court. Indeed, in his application the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources. The difficulties involved in gathering and producing evidence in the present case caused by the restrictions on the applicant’s communication with the outside world and the extreme secrecy surrounding the US rendition operations have been compounded by the Polish Government’s failure to cooperate with the Court in its examination of the case. In consequence, the Court’s establishment of the facts is to a great extent based on circumstantial evidence, including a large amount of evidence obtained through the international inquiries, considerably redacted documents released by the CIA, other public sources and evidence from the experts and the witness (see paragraphs 15, 42-43, 49-77 and 213-338 above). 401. The Court notes that the CIA official documents clearly confirm that by November 2002 the Agency had the applicant and Mr Abu Zubaydah, both referred to as “High-Value Detainees”, in its custody and that they were interrogated at a CIA black site with the use of the EITs – the applicant immediately after his arrival at that place on 15 November 2002 (see paragraphs 83-90 above). Those documents also attest to the fact that as from 15 November 2002 the applicant and Mr Abu Zubaydah were held in the same detention facility, that they were interrogated by apparently the same team of “psychologist/interrogators”, that their interrogations were videotaped and that the series of the applicant’s enhanced interrogations, including the so-called “waterboarding”, “continued through 4 December 2002” (see paragraphs 8589 above). 402. The CIA material further confirm in the cables of 3 and 9 December 2002 that this specific detention facility was closed following an inventory of the videotapes recording the enhanced interrogations of Mr Al Nashiri’s and Mr Abu Zubaydah’s. The inventory was carried out on 3 December 2002. No CIA cables from that location were sent to the Headquarters after 4 December 2002 (see paragraphs 89-90 above). The 2009 DOJ Report states that, after the enhanced interrogations of Mr Al Nashiri which, as noted above, continued at that black site until 4 December 2002, both he and Mr Abu Zubaydah were moved to “another CIA black site”. The same fact is mentioned in the 2004 CIA Report (see paragraphs 87-88 above). 403. Senator Marty and Mr J.G.S., the experts who gave evidence to the Court, in their presentation at the fact-finding hearing explained in detail the above sequence of events with reference to documentary evidence available in the public domain, in particular the material released by the CIA. They identified the CIA detention facility in which the applicant and Mr Abu Zubaydah had been held during the period under consideration as the one known under the codename “Cat’s Eye” or “Catseye” and located in Bangkok. They conclusively confirmed that the closure of the site and interruption of Mr Al Nashiri’s interrogation schedule on 4 December 2002 indicated the date of his physical transfer by means of the HVD rendition out of the black site in Thailand to another black site (see paragraphs 314315 above). 404. In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture, was detained in the CIA detention facility in Bangkok from 15 November 2002 to 4 December 2002, that Mr Abu Zubaydah was also held in the same facility at that time and that they were both moved together to “another CIA black site” on 4 December 2002 (see Husayn (Abu Zubaydah), cited above, § 404). 405. It is alleged that on 5 December 2002 the applicant, together with Mr Abu Zubaydah, had been transferred by the CIA under the HVD Programme from Thailand to Poland on a CIA contracted aircraft, registered as N63MU with the US Federal Aviation Authority. The flight flew on 4 December 2002 from Bangkok via Dubai and landed at Szymany airport on 5 December 2002. The applicant was then secretly detained in the Polish intelligence training base at Stare Kiejkuty. It is further alleged that during his undisclosed detention in Poland the applicant was subjected to torture and various other forms of ill-treatment and deprived of any contact with his family. He was held in Poland until 6 June 2003. On that date he was secretly transferred by the CIA from Poland to Rabat on a rendition plane with tail number N379P (see paragraphs 91-106 above). 406. The Court notes that the fact that after 4 December 2002 the applicant and Mr Abu Zubaydah were detained together to the same detention facility is conclusively confirmed in paragraph 91 of the 2004 CIA Report. The paragraph states that the same “interrogation team” was “to interrogate Al Nashiri and debrief Abu Zubaydah” and that “the interrogation team continued EITs on Al Nashiri for two weeks in December 2002” (see paragraph 99 above). 407. As regards the aircraft indicated by the applicant, the Court observes that there is abundant evidence identifying them as rendition planes used by the CIA for the transportation of detainees under the HVD Programme. That evidence includes data from multiple sources, such as flight plan messages by Euro Control and information provided by the Polish Border Guard and the Polish Air Navigation Services Agency (“PANSA”), which was released and subsequently analysed in depth in the course of the international inquiries concerning the CIA secret detentions and renditions (see paragraphs 92-94, 258, 271 and 287-291 above). 408. In the light of that accumulated evidence, there can be no doubt that: 1) the N63MU, a Gulfstream jet with capacity for 12 passengers, flew on 4 December 2002 from Bangkok via Dubai to Szymany and landed there on 5 December 2002 at 14.56. The Polish Border Guard’s official documents recorded that on arrival there were eight passengers and four crew and that the plane departed from Szymany on the same day at 15:43 with no passengers and four crew; 2) the N379P, also known as “Guantánamo Express”, a Gulfstream V with capacity for eighteen passengers but usually configured for eight, arrived in Szymany on 5 June 2003 at 01:00 from Kabul, Afghanistan. It stayed on the runway for over two hours and then departed for Rabat, Morocco. The Polish Border Guard’s official documents recorded that on arrival there was one passenger and two crew and on departure there were no passengers and two crew. 409. As regards transfers of High-Value Detainees between CIA black sites, the CIA declassified documents give, in meticulous detail, a first-hand account of the standard procedures applied to them. The transfer procedure is also related in the 2007 ICRC Report, which compiled consistent and explicit descriptions given by the fourteen High-Value Detainees, including the applicant (see paragraphs 64 and 282 above). Nothing has been put before the Court to the effect that upon and during his transfer to and from “another black site” on, respectively, 4-5 December 2002 and 5 June 2003, the applicant could have been subjected to less harsh treatment than that defined in the strict and detailed rules applied by the CIA as a matter of routine. It accordingly finds it established beyond reasonable doubt (see paragraph 394 above) that for the purposes of his transfers on 4/5 December 2002 and 6 June 2003: 1) the applicant was photographed both clothed and naked prior to and again after the transfer; 2) he underwent a rectal examination and was made to wear a diaper and dressed in a tracksuit; 3) earphones were placed over his ears, through which loud music was sometimes played; 4) he was blindfolded with at least a cloth tied around the head and black goggles; 5) he was shackled by his hands and feet, and was transported to the airport by road and loaded onto the plane; 6) he was transported on the plane either in a reclined sitting position with his hands shackled in front of him or lying flat on the floor of the plane with his hands handcuffed behind his back; 7) during the journey he was not allowed to go to the toilet and, if necessary, was obliged to urinate or defecate into the diaper. In that regard, the Court would also note that a strikingly similar account of his transfers in CIA custody was given by the applicant in El-Masri (see El-Masri, cited above, § 205). 410. As regards the applicant’s actual presence in Poland, the Court takes due note of the fact that there is no direct evidence that it was the applicant who was transported on board the N63MU flight from Bangkok to Szymany on 5 December 2002 or that he was then taken from Szymany to other CIA secret detention facilities on board N379P on 6 June 2003. The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate a person by transfers to unknown locations, even if he had been enabled to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever on his own be able to identify the places in which he was held. Also, having regard to the very nature and extreme secrecy of the CIA operations in the course of the “war on terror” and to how the declassification of crucial material demonstrating the CIA activities at that time currently stands – this being a matter of common knowledge – , no such direct evidence will soon be forthcoming in this regard. 411. No trace of the applicant can, or will, be found in any official records in Poland because his presence on the plane and on Polish territory was, by the very nature of the rendition operations, purposefully not to be recorded. As unequivocally confirmed by the expert, the Border Guard’s records showing numbers of passengers and crew arriving and departing on the rendition planes in question “neither include[d], nor purport[ed] to include detainees who were brought into or out of Polish territory involuntarily, by means of clandestine HVD renditions” and those detainees “were never listed among the persons on board filed vis-à-vis any official institution” (see paragraph 328 above). 412. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained in Poland at the relevant time, the Court has taken into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 401-404 and 408-409 above) and analysed other material in its possession, including, in particular, the expert evidence reconstructing the chronology of rendition and detention of the applicant and Mr Zubaydah in 2002-2003 (see paragraphs 314-318 above). 413. It has already been established that on 4 December 2002 the applicant was transferred from the black site in Bangkok together with Mr Abu Zubaydah and that they were subsequently detained in the same CIA detention facility (see paragraph 404 above). The date of the transfer coincides exactly with the path followed by the N63MU, which took off from Bangkok on 4 December 2002 and then, after the stopover in Dubai, arrived in Szymany on 5 December 2002 (see paragraphs 92, 392 and 316 above). The flight was the subject of protracted and intense investigations by the experts who gave evidence to the Court, who had investigated it “in its most intricate detail from its planning and authorisation to its execution through multiple, different corporate shells”. They found no alternative explanation for its landing in Szymany other than the transfer of the applicant and Mr Abu Zubaydah from Bangkok to “another black site”, which they categorically identified as the one codenamed “Quartz” and located at the Polish intelligence training base in Stare Kiejkuty near Szymany (see paragraphs 316-317 and 327 above) 414. The Court notes that the Polish Government have offered no explanation for the nature of, the reasons for, or the purposes of the landing of the N63MU on their territory on 5 December 2002, a plane which in all the relevant reliable and thorough international inquiries was conclusively identified as the rendition aircraft used for transportation of High-Value Detainees in CIA custody at the material time (see paragraph 407 above, with further references). Nor have they explained the reasons for the subsequent series of landings of the CIA rendition aircraft (see paragraph 292 above). The landing of N63MU on 5 December 2002 was followed by five further landings of the N379P (the “Guantánamo Express”), the most notorious CIA rendition plane. One of those landings took place on 6 June 2003 – the date indicated by the applicant as that of his transfer from Poland and conclusively confirmed by the experts as that on which he had been transferred out of Poland (see paragraphs 292 and 328 above). The series ended with the landing of N313P on 22 September 2003 – the date indicated by Mr Abu Zubaydah for his transfer from Poland, confirmed by the experts as the date of his transfer out of Poland and identified by them as the date on which the black site “Quartz” in Poland had been closed (see paragraphs 317-318 above and also Husayn (Abu Zubaydah), cited above, § 414). Indeed, no other CIA-associated aircraft appeared in Szymany after that date (see paragraph 292 above). 415. In view of the lack of any explanation by the Government as to how the events in the present case occurred and their refusal to disclose to the Court documents necessary for its examination of the case (see paragraphs 17-40 and 375 above), the Court will draw inferences from the evidence before it and from the Government’s conduct (see also paragraphs 360 and 395 above). Consequently, on the basis of unrebutted facts and in the light of all the relevant documentary material in its possession and the coherent, clear and categorical expert evidence explaining in detail the chronology of the events occurring in the applicant’s case between 4-5 December 2002 and 6 June 2003, the Court finds that the applicant’s allegations to the effect that during that time he was detained in Poland are sufficiently convincing. 416. Lastly, as regards the applicant’s treatment in CIA custody over the period under consideration, a detailed description of “unauthorised techniques” applied to him by a CIA “senior operation officer” or “debriefer” in December 2002 and January 2003 comes from the most authoritative sources: the 2004 CIA Report and the 2009 DOJ Report (see paragraphs 99-100 above). This is supplemented by the applicant’s own account of the ordeal as rendered in the 2007 ICRC Report (see paragraph 101 above). Senator Marty and Mr J.G.S. also gave an account of those events based on the relevant documentary evidence (see paragraph 317 above). According to all these sources, in December 2002 and January 2003 in CIA custody the applicant was subjected to the “enhanced” and “unauthorised” interrogation techniques. As regards the latter, he was subjected to the following treatment: 1) mock executions with the use of a handgun when he sat shackled and with the use of a power drill during which he stood naked and blindfolded; 2) stress positions: he was required to kneel on the floor and lean back, he was held in a stress standing position and pushed when and lifted off the floor by his arms while his arms were bound behind his back with a belt; 3) threats; 4) during interrogations cigar smoke was blown into his face; 5) stiff brush was used to bathe him in the manner intended to induce pain; 6) standing on his shackles, resulting in cuts and bruises. 417. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that: (1) on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU; (2) from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename “Quartz” and located in Stare Kiejkuty; (3) during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report; 4) on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P. 418. Several sources of evidence obtained by the Court confirm that the Polish authorities followed a special procedure for the landing of CIA rendition flights in Szymany. That procedure was related before the TDIP by an eye-witness, a certain Ms M.P., who had been the manager of Szymany airport at the material time (see paragraphs 293-302 above). On the basis of her detailed account and statements from other persons, including the former director of Szymany airport and the former Chairman of the Board of that airport, the summary description of that procedure was included in the Fava Report (see paragraph 271 above). Furthermore, the 2007 Marty Report contained a compilation of testimonies obtained from confidential sources among Szymany airport employees, civil servants, security guards, and Border Guard and military intelligence officials, who had given an account of what had happened at the time immediately following the landing of the CIAassociated aircraft landed in Szymany (see paragraph 260 above). The above-mentioned accounts of the special procedure, which are concordant and complementary, can be summarised as follows: 1) all the landings were preceded by a telephone call to Szymany airport from the Warsaw Headquarters of the Border Guard or a military intelligence official, informing the authorities of the airport of an arriving “American aircraft”; 2) the army was informed at the same time and two military officials were on duty in the airport at that time; 3) prior to the landings two high-ranking Border Guard officers always appeared in the airport; 4) orders were given directly by the Border Guard, emphasising that the airport authorities should not approach the aircraft and that the military staff and services alone were to handle them; 5) the airport manager was instructed to adhere to strict protocols to prepare for the flights, including clearing the runways of all other aircraft and vehicles, and making sure that all Polish staff were brought in to the terminal building from the vicinity of the runway, including local security officials and airport employees; 6) the role of the airport personnel was only to complete the technical arrangements after the landing; 7) the planes were treated as military planes and were not subjected to customs clearance; the military character of the flight was determined by the Border Guard and the relevant procedure was to be followed by the airport staff; 8) the perimeter and grounds of the airport were secured by military officers and the Border Guard; 9) the aircraft touched down in Szymany and taxied to a halt at the far end of the runway, several hundred metres (and out of visible range) from the four-storey terminal control tower; it always parked with the doors facing towards the wood; 10) the passengers never entered the airport; 11) the Border Guard approached the aircraft first and then drove away; 12) the “landing team” waited at the edge of the runway, in two or three vans with tinted windows, bearing the Stare Kiejkuty army unit’s registration plates; the vans, with their engines often running, were parked in close proximity to the aircraft; 13) after the Border Guard drove away, the vans with tinted windows drove up to the aircraft and then drove away; 14) the planes left shortly afterwards; 15) the landing fees were paid to the airport in cash by a Pole (or a person who spoke Polish very well) the next day and were considerably higher – several times more – than those normally applicable (between 2,000 and 4,000 euros (EUR) per plane), including an amount for “non-standard handling”. 419. Several sources of evidence obtained by the Court reveal that, in addition to granting the CIA rendition aircraft overflight permissions and navigating the planes through Poland’s airspace, the Polish authorities, including PANSA, accorded them special status, various exemptions and authorisations. They also cooperated with the CIA in disguising the aircraft’s actual routes and validated incomplete or false flight plans which served to cover-up the CIA activities in Poland, in contravention of international aviation regulations (see paragraphs 258, 271 and 291 above). 420. As explained in the 2007 Marty Report and by Senator Marty and Mr J.G.S. orally before the Court, Jeppesen, a usual provider of services for the CIA for rendition flights (see also paragraphs 72-74 above), filed multiple false – “dummy” – flight plans for those flights, including the landings in Poland. Those plans often featured an airport of departure and/or destination that the aircraft never intended to visit. In at least four out of six instances of the CIA aircraft landings in Szymany, including the landing of N63MU on 5 December 2002 with the applicant and Mr Abu Zubaydah on board (see paragraphs 408 and 417 above), flight plans were disguised, false plans were filed and PANSA navigated the aircraft into Szymany without a valid flight plan (see paragraphs 258 and 316 above). 421. A detailed analysis of the rendition circuit of the flight N379P, including the stopover in Szymany on 6 June 2003 is included in the CHRGJ Report. That report explains how the aircraft made the entire circuit under various forms of exemption and special status, which indicated that the flights were planned and executed with the full collaboration of the US authorities and the “host” States through which the N379P travelled. Such exemptions are only granted when specifically authorised by the national authority whose territory is being used (see paragraph 291 above). 422. On 5 June 2003 PANSA navigated the N379P into Szymany, despite the fact that all relevant flight plans named Warsaw as the airport of destination. The fact that PANSA accepted Jeppesen’s flight plan naming Warsaw but navigated the plane to Szymany demonstrated that the Polish authorities did not require it to comply with international aviation regulations and that they knowingly issued a false landing permit. In consequence, the rest of the aviation monitoring community, including Eurocontrol, mistakenly recorded the aircraft’s stopover in Warsaw (see paragraphs 258, 291 and 316 above). 423. Several sources of evidence before the Court have suggested the existence of a special bilateral agreement between Poland and the USA on the setting up and running of a secret prison in Poland. 424. The 2007 Marty Report, based on evidence from confidential sources, states that the CIA brokered an “operating agreement” with Poland to hold its High-Value Detainees in a secret detention facility and that Poland agreed to “provide the premises in which [that facility was] established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference” (see paragraphs 254-255 above). In the context of the authorisation of Poland’s role in the CIA rendition operations, the 2007 Report mentioned a number of names of the Polish high-ranking officials, stating that they had known and authorised the country’s role “in the CIA operation of secret detention facilities for High-Value Detainees on Polish territory” and that they “could therefore be held accountable for these activities” (see paragraph 257, see also paragraph 240 above). Senator Marty confirmed those statements before the Court and added that the operation had been organised within the framework of NATO. It had been decided that the CIA would be in sole charge of the operation and, if requested, the member countries would provide cooperation. As regards the specific names of Polish officials that had been given in the 2007 Marty Report, he explained that they had been indicated “because the sources that [had] provided us with these names [had been] of such value, they [had been] so authoritative and there [had been] so much concurring evidence of the involvement of those persons” (see paragraph 321 above). 425. Mr J.G.S., when heard by the Court, said that whilst in the course of the Marty Inquiry they had not seen the classified documents in question, they had been made aware of the existence of authorising agreements, which granted extraordinary protections and permissions to the CIA in its execution of the rendition operations (see paragraph 329 above). 426. Senator Pinior, both in his affidavit and oral testimony before the Court, stated that he had been informed by an authoritative confidential source of a document – a draft prepared by the Polish intelligence – drawn up under the auspices of Mr Miller’s Government for the purpose of regulating the operation of the CIA prison in Poland. According to him, that document, which was currently in the Polish prosecution authority’s possession, contained precise regulations concerning the functioning of the prison and, among other things, a proposed protocol for action in the event of a prisoner’s death. The word “detainees” was used in the text. The draft had not been signed on behalf of the US (see paragraphs 303 and 334 above). 427. The 2007 EP Resolution “note[d] with concern” that the Polish authorities’ official reply of 10 March 2006 to the to the Secretary General of the Council of Europe, “indicate[d] the existence of secret cooperation agreements initialled by the two countries’ secret services’ themselves, which exclude[d] the activities of foreign secret services from the jurisdiction of the Polish judicial bodies” (see paragraph 275 above). 428. The Court does not find it necessary for its examination of the present case to establish whether such agreement or agreements existed and if so, in what format and what was specifically provided therein. It considers that it is inconceivable that the rendition aircraft crossed Polish airspace, landed in and departed from a Polish airport and that the CIA occupied the premises in Stare Kiejkuty without some kind of pre-existing arrangement enabling the CIA operation in Poland to be first prepared and then executed. 429. The Court considers that the respondent State’s lack of cooperation in the course of the international inquiries into the CIA rendition operations in Europe undertaken in 2005-2007 is an element that is relevant for its assessment of Poland’s alleged knowledge of, and complicity in, the CIA rendition operations. 430. To begin with, in their response dated 10 March 2006 to the Secretary General of the Council of Europe’s questions in the procedure launched under Article 52 of the Convention, the authorities “fully denied” the allegations of “the alleged existence in Poland of secret detention centres and related over-flights (see paragraph 242 above; the relevant letter is also mentioned above in paragraph 427 above). In that regard, they relied on the findings of “the Polish Government’s internal inquiry”. It is not clear what kind of “internal inquiry” was carried out and whether the authorities in fact meant the Parliamentary inquiry conducted in November-December 2005 (see paragraph 128 above) but, be that as it may, they could not have been unaware of the CIA operations in the country in 2002-2003 (see paragraphs 423-428 above). 431. A similar obstructive attitude was displayed during the Marty Inquiry. In the 2006 Marty Report it was noted that “the Polish authorities ha[d] been unable, despite repeated requests, to provide [the rapporteur] with information from their own national aviation records to confirm any CIA-connected flights into Poland” (see paragraph 248 above). The 2007 Marty Report noted that “in over eighteen months of correspondence, Poland ha[d] failed to furnish [the] inquiry with any data from its own records confirming CIA-connected flights into its airspace or airports” (see paragraph 259 above). Senator Marty, at the fact-finding hearing, added that “Poland [had been] no exception” and that practically all governments that [had] had links with the secret detention centres or with ‘extraordinary rendition’ not only [had] not cooperate[d] but [had done] everything that they could in order to stifle the truth, to create obstacles in the search for the truth” (see paragraph 320 above). 432. The conduct adopted by the authorities in respect to the Fava Inquiry was no different. The Fava Report explicitly stated that the Polish authorities cooperation with the TDIP delegation had been “regrettably poor”, that the delegation had not been able to meet any representatives of Parliament and that the Government had been “reluctant to offer full cooperation ... and receive [the] delegation at an appropriate political level”. It was also noted that there had been confusion about flight registers of CIA planes transiting through Poland and contradictory statements about the existence of flight logs (see paragraph 270 above). The same observations were made in the 2007 EP Resolution (see paragraph 275 above). In his testimony before the Court, Mr Fava stated that the Polish Government had “cooperated very little” with the TDIP and that almost all representatives of the Government whom they had asked for a meeting had declined the TDIP’s request. He also confirmed that during his visit to Poland with the TDIP delegation he had “definitely” had the impression that there had been attempts on the authorities’ part to conceal information (see paragraph 308 above). 433. Having regard to the above facts, the Court finds that in the course of the relevant international inquiries the Polish authorities displayed conduct that can be characterised as denial, lack of cooperation with the inquiry bodies and marked reluctance to disclose information of the CIA rendition activities in Poland. 434. Mr Fava, in his oral testimony described in detail a document – the records or “the debriefing” of the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the US Secretary of State Condoleezza Rice, which had taken place on 7 December 2005. The meeting was convened in connection with recent international media reports concerning the CIA secret detentions and rendition, naming European countries that had allegedly had CIA black sites on their territory. The debriefing, obtained by the TDIP from a credible confidential source in the offices of the European Union, confirmed that the member States had had knowledge of the CIA rendition programme and there had been an “animated discussion” on the practices applied by the CIA. While Mr Fava could not recall whether there had been any intervention by the Polish Government at that meeting, he said that it had appeared from Ms Rice’s statement “we all know about these techniques” that there had been an attempt on the USA’s part to share “the weight of accusations” (see paragraph 306 above). 435. The Court further notes that Mr Fava also referred to the meeting held in the context of the Fava Inquiry with the former Polish head of the security service who, “although ... with great diplomacy”, had confirmed that the CIA officials often landed in Szymany and that the Polish intelligence and the CIA had had “frequent relations of cooperation ... consisting in sharing certain practices and objectives” (see paragraphs 269 and 310 above). 436. Former President of Poland, Mr Kwaśniewski, in his press interview given on 30 April 2012, also referred to the “intelligence cooperation” with the CIA and stated that “the decision to cooperate with the CIA carried the risk that the Americans would use inadmissible methods” (see paragraph 240 above). 437. Having regard to the procedure for High-Value Detainees’ transfers under which, as established above, a detainee such as the applicant was blindfolded, wore black goggles and was shackled by his hands and feet for the duration of his transfer (see paragraphs 64, 282 and 409 above), the Court considers that those of the Polish authorities who received the CIA personnel on the Szymany airport runway, put them on the vans and drove them to the black site could not be unaware that the persons brought there with them were the CIA prisoners. In particular, the Court finds it inconceivable they would not have seen or, as described by Mr J.G.S., “witnessed ... the unloading of bound and shackled detainees from aircraft” (see paragraph 330 above). 438. There are also other elements that the Court considers relevant for its assessment of Poland’s knowledge of the nature and purposes of the CIA activities on its territory at the material time. As recounted by Senator Pinior in his affidavit and subsequently confirmed in his oral testimony given to the Court, “in the period when the CIA prisoners were detained in Stare Kiejkuty” the authorities of the military base ordered from a Polish company a metal cage of the size fitting a grown man with the option of adding a portable chemical toilet (see paragraphs 303 and 335 above). No explanations have been offered by the respondent Government as to what kind of purposes that cage was to serve. Furthermore, there were, as pointed out by one of the experts (see paragraph 330 above), other aspects of the CIA activity in Poland that were extraordinary from the perspective of the normal operation of an airport like Szymany. For instance, the landing of the Boeing 737 (N313P on which Mr Abu Zubaydah was transferred from Poland; see Husayn (Abu Zubaydah), cited above, §§ 408, 419 and 440) on 22 September 2003 at Szymany took place despite the fact that the airport did not have the necessary technical conditions for receiving such a large aircraft, in particular the facilities to refuel it, and the fact that the airport fire brigade was not adequately equipped for that purpose (see paragraphs 295 and 318 above). In the view of Ms M.P., the airport manager at the relevant time, “there must have been some very pressing reasons” for allowing that landing (see paragraph 296 above). On another occasion in the winter, notwithstanding the severe weather conditions and the fact that snow had not been cleared at the airport for six weeks, the airport management were not in a position to refuse the CIA aircraft’s landing and had to clear the runway because “if the aircraft concerned did not land, ‘heads w[ould] roll’” (see paragraph 300 above). For the airport civilian staff, the landing of the CIA aircraft was a “major event”. Despite the fact that they were excluded from the handling of the aircraft and were taken to the airport terminal building during the CIA landings and departures (see paragraph 418 above), they perceived those events as “spies” coming or a “changeover of intelligence staff” (see paragraph 297 above). 439. Lastly, the Court attaches importance to the fact that already between January 2002 and August 2003 ill-treatment and abuse to which captured terrorist suspects were subjected in US custody at different places, including Guantánamo Bay or Bagram base in Afghanistan was largely in the public domain through numerous statements or reports of international organisations (see paragraphs 214-228 and 389–390 above). At the material time that topic was also present in the international and Polish media, which paid considerable attention to the situation of Al’Qaeda prisoners in US custody (see paragraphs 230–239 above). 440. The Court has taken due note of the fact that knowledge of the CIA rendition and secret detention operations and the scale of abuse to which High-Value Detainees were subjected in CIA custody evolved over time (see paragraphs 47-71, 78-81, 214-239, 241-261, 266-275 and 281-286 above). In particular, the CIA’s various secret or top secret documents, including the 2004 CIA Report, the CIA Background Paper and the 2009 DOJ Report – which, in the present case and in Husayn (Abu Zubaydah), are among important items of documentary evidence relevant for the establishment of the facts relating to both applicants’ rendition, secret detention and treatment by the US authorities – were disclosed to the public, in a heavily redacted form, as late as 2009-2010 (see paragraphs 49-50, 57 and 62 above). The 2007 ICRC Report, including the applicant’s account of the treatment and material conditions of detention to which he was subjected under the HVD Programme, was leaked into the public domain in 2009 (see paragraph 277 above). The reports following the Marty Inquiry and the Fava Inquiry emerged earlier, in 2006-2007 (see paragraphs 246-261 and 266272), but this was between three and a half and five years after the events complained of. As stated by Senator Marty, even “the picture provided by the 2007 [Marty] Report is still very much a partial one”, having regard to the subsequent developments, such as the publication of the CIA materials and the availability of statements from detainees (see paragraph 323 above). As already stated above (see paragraphs 42 and 397-400 above), the Court has relied extensively on those sources of evidence in its retrospective reconstruction and establishment of the facts concerning the applicant’s transfers to and from Poland and his secret detention and ill-treatment by the CIA in Poland. However, the Polish State’s knowledge of and complicity in the HVD Programme must be established with reference to the elements that it knew or ought to have known at or closely around the relevant time, that is, between December 2002 and June 2003 in respect of the applicant and between December 2002 and September 2003 in respect of Mr Abu Zubaydah. 441. In that regard, the Court has taken into account the various attendant circumstances referred to above (see paragraphs 418-439 above). In the Court’s view, those elements taken as a whole demonstrate that at that time the Polish authorities knew that the CIA used its airport in Szymany and the Stare Kiejkuty military base for the purposes of detaining secretly terrorist suspects captured within the “war on terror” operation by the US authorities. It is inconceivable that the rendition aircraft could have crossed Polish airspace, landed in and departed from a Polish airport, or that the CIA occupied the premises in Stare Kiejkuty and transported detainees there, without the Polish State being informed of and involved in the preparation and execution of the HVD Programme on its territory. It is also inconceivable that activities of that character and scale, possibly vital for the country’s military and political interests, could have been undertaken on Polish territory without Poland’s knowledge and without the necessary authorisation being given at the appropriate level of the State authorities. The Court would again refer to the testimony given by the experts who, in the course of their inquiries, had the benefit of contact with various, including confidential, sources. They all stated, in unambiguous terms, that at the relevant time Poland had had, or should have had, knowledge of the CIA rendition operations. Poland had ensured the security of the area and had collaborated in concealing the rendition flights. The Polish officials’ liaison units must have been aware of the preparation or execution of particular operations and their timing. They had known that the CIA interrogations had contributed intelligence to the United States’ war on terror (see paragraphs 307, 321-323, 326 and 330-331 above). This did not mean, in the experts’ view, that the Polish authorities had known the details of what went on inside the black site, since the interrogations had been the exclusive responsibility of the CIA, or that they had witnessed treatment to which High-Value Detainees had been subjected in Poland (see paragraphs 322-323 and 330-331 above). The Court, being confronted with no evidence to the contrary, accepts the experts’ above-mentioned assessment. Notwithstanding the foregoing proviso as to the lack of direct knowledge of the treatment to which the applicant was subjected in Poland, as noted above, already between January 2002 and August 2003 numerous public sources were consistently reporting ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in different places. Moreover, in the 2003 PACE Resolution adopted in June 2003 – of which Poland, as any other Contracting State was aware – the Parliamentary Assembly of the Council of Europe was “deeply concerned at the conditions of detention” of captured “unlawful combatants” held in the custody of the US authorities. All these sources reported practices resorted to or tolerated by the US authorities that were manifestly contrary to the principles of the Convention (see paragraphs 214-224, 229-239 and 389-390 above). Consequently, there were good reasons to believe that a person in US custody under the HVD Programme could be exposed to a serious risk of treatment contrary to those principles (see also El-Masri, cited above, § 218). 442. Taking into consideration all the material in its possession (see paragraphs 418-439 above), the Court finds that there is abundant and coherent circumstantial evidence, which leads inevitably to the following conclusions: (a) that Poland knew of the nature and purposes of the CIA’s activities on its territory at the material time and that, by enabling the CIA to use its airspace and the airport, by its complicity in disguising the movements of rendition aircraft and by its provision of logistics and services, including the special security arrangements, the special procedure for landings, the transportation of the CIA teams with detainees on land, and the securing of the Stare Kiejkuty base for the CIA’s secret detention, Poland cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory; (b) that, given that knowledge and the emerging widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, Poland ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see also ElMasri, cited above, §§ 217-221). 443. Consequently, Poland was in a position where its responsibility for securing “to everyone within [its] jurisdiction the rights and freedoms defined .... in [the] Convention” set forth in Article 1 was engaged in respect of the applicant at the material time. | 1 |
test | 001-168762 | ENG | RUS | COMMITTEE | 2,016 | CASE OF ARTEMENKO v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 5. The applicant was born in 1966 and lives in Roslavl, the Smolensk Region. 6. On 15 June 2003 the applicant was arrested on suspicion of unintentional manslaughter. On 30 September 2003 he was committed to stand trial before the Leninskiy District Court of Smolensk. On 10 October 2003 the District Court fixed the first trial hearing and ordered that the applicant should remain in custody. 7. On 26 April 2004 the Leninskiy District Court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment. The judgment became final on 10 July 2004 when the Smolensk Regional Court upheld it on appeal. 8. In February 2005 the applicant lodged an action with the Leninskiy District Court, arguing that his detention from 2 to 26 April 2004 had been unlawful as there had been no legal order authorizing his detention during that period. He sought compensation for non-pecuniary damage. 9. On 23 September 2005 the Leninskiy District Court, in the presence of a defendant’s representative, dismissed the applicant’s action, finding that the applicant’s conviction precluded him from claiming compensation in respect of non-pecuniary damages. Its operative part reads as follows: “Given that Mr Artemenko was found guilty of the crime in relation to which he had been detained since 17 June 2003, he did not acquire the right to exoneration and to compensation in respect of non-pecuniary damage. Therefore, there exist no grounds for satisfying Mr Artemenko’s claim for compensation in respect of his unlawful detention pending trial.” 10. The applicant appealed, complaining, inter alia, that the District Court had refused to secure his attendance and had not provided him with copies of materials presented by the defendants. He also maintained his initial claim for compensation. 11. On 29 November 2005 the Smolensk Regional Court upheld the judgment of 23 September 2005 in the applicant’s absence. | 1 |
test | 001-158085 | ENG | SRB | COMMITTEE | 2,015 | CASE OF RAKIĆ AND SARVAN v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Mārtiņš Mits | 5. The applicants were born in 1976 and 1948 respectively and live in Požega. 6. They were employed by Raketa-Putnički Saobraćaj AD, a socially-owned company based in Užice (hereinafter “the debtor”). 7. On 26 June 2006 the Požega Municipal Court ordered the debtor to pay the first applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 7 July 2006. 8. On 15 August 2006 upon the first applicant’s request to that effect, the Požega Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the first applicant the enforcement costs. 9. On 22 September 2006 the Požega Municipal Court ordered the debtor to pay the first applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 8 October 2006. 10. On 19 October 2006 upon the first applicant’s request to that effect, the Požega Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the first applicant the enforcement costs. 11. On 22 January 2008 the Požega Municipal Court ordered the debtor to pay the first applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final by 2009. 12. On 24 September 2009 upon the first applicant’s request to that effect, the Požega Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the first applicant the enforcement costs. 13. On 19 June 2006 the Požega Municipal Court ordered the debtor to pay the second applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 5 July 2006. 14. On 21 August 2006 upon the second applicant’s request to that effect, the Požega Municipal Cour ordered the enforcement of the said judgment and further ordered the debtor to pay the second applicant the enforcement costs. 15. On 21 September 2006 the Požega Municipal Court ordered the debtor to pay the second applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 6 October 2006. 16. On 17 October 2006 upon the second applicant’s request to that effect, the Požega Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the second applicant the enforcement costs. 17. The debtor, which operated as a socially-owned company, was privatised on 27 December 2002. 18. On 17 July 2007 the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations. 19. Following the annulment of the debtor’s privatisation the State owned 58.18% of shares in the company. 20. On 11 December 2008 the State sold its shares to a private company. 21. On 12 July 2010 the Užice Commercial Court opened insolvency proceedings in respect of the debtor. As a result, all of the ongoing enforcement proceedings against the debtor were stayed. 22. The applicants duly reported their respective claims based on the above-mentioned judgments to the insolvency administration. 23. On 8 June 2011 the Commercial Court recognized a part of the applicants’ claims. 24. In March 2014 and July 2014 some of the judgments at issue had been partially enforced in the insolvency proceedings. 25. The insolvency proceedings are still ongoing. | 1 |
test | 001-154533 | ENG | SVN | CHAMBER | 2,015 | CASE OF HAJRUDINOVIĆ v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1956 and lives in Jesenice. 6. On 15 April 1998 the Kranj District Court instituted insolvency proceedings against the company S., at that time the applicant’s employer. 7. On 29 April 1998 the receiver in insolvency issued a decision on the termination of the applicant’s employment contract with the company S. 8. On an unknown date, the applicant lodged his claim for a redundancy payment in the insolvency proceedings. Since the receiver disputed the claim, the Kranj District Court on 11 September 1998 referred the applicant to labour proceedings. 9. On 22 December 1998 the applicant instituted proceedings before the Kranj Divison of the Labour and Social Court. 10. In the same period about 150 claims similar to that of the applicant were lodged before the same court. 11. In 1999 the Kranj Labour and Social Court issued decisions in four cases similar to the applicant’s, dismissing the claims. It held that the workers who had lost their jobs owing to the employer’s insolvency before section 19 of the 1999 Act Amending the Guarantee Fund of the Republic of Slovenia Act (“the 1999 Act”) became effective were not entitled to a redundancy payment. Section 19 explicitly foresaw a right to a redundancy payment for workers who were let go after a company had become insolvent. 12. In 2000 several applications for a constitutional review of section 19 of the 1999 Act were lodged with the Constitutional Court, challenging the constitutionality of non-retroactive application of that provision. 13. On 5 October 2001, following the negative decisions issued in the four cases (see paragraph 11 above), the trade union which was also representing the applicant requested the court to postpone hearings scheduled in other cases. The union wanted to first check whether the other workers wanted to withdraw their claims in order to avoid the costs of the proceedings. 14. No formal decision on adjourning or staying the proceedings was issued by the court. 15. On 10 April 2003 the Constitutional Court dismissed the motions for review of the constitutionality of section 19 of the 1999 Act. It held that they were unfounded, since they were based on the false premises that the right to a redundancy payment for workers laid off because of their employer’s insolvency was introduced only by section 19, and that moreover it did not apply retroactively. Referring to its own decisions issued in 1994, 1995 and 2000, it stressed that this right had already been foreseen by the general labour legislation in force prior to the adoption of the 1999 Act. It explained that the purpose of Section 19 was solely to explicitly clarify that also workers who lost their jobs because of the insolvency of their employers were entitled to redundancy payments. Such clarification was needed because of the conflicting case-law of the lower courts. In this respect the Constitutional Court emphasised that while it could not interfere with the correct interpretation of legal norms by the lower courts, the latter could not apply an interpretation which would be unconstitutional, arbitrary, or clearly wrong. 16. On 14 July 2003, the parties settled with the company S., which acknowledged the applicant’s claim. 17. On 13 July 2006 the applicant lodged a claim for compensation for damage sustained because of the length of the labour proceedings. 18. On 27 September 2007 the Ljubljana Local Court dismissed his claim. It held that Section 25 of the 2006 Act on Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) was not applicable, since that provision only applied to cases where an individual had already lodged an application on account of length of proceedings before an international court. Applying the general rules of the 2001 Code of Obligations on pecuniary damages, it further concluded that since the case had been settled the applicant had failed to prove that he had incurred any damage. In any case, there was also no causal link between the conduct of the court and the damage allegedly sustained. The applicant appealed. 19. On 9 January 2008 the Ljubljana Higher Court upheld the applicant’s appeal and remitted the case back to the first-instance court. 20. On 8 May 2008 the Ljubljana Local Court, in a renewed set of proceedings, again dismissed the applicant’s claim. It concluded that he had failed to prove either any damage on account of delays in the proceedings or any causal link. The applicant appealed. 21. On 5 November 2008 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged a constitutional appeal. 22. On 27 May 2010 the Constitutional Court granted the applicant’s constitutional appeal by referring to its decision of 18 March 2010 (see paragraph 29 below) and remitted the case to the higher court. 23. On 15 September 2010 the Ljubljana Higher Court remitted the case back to the first-instance court. 24. On 25 October 2010 the Ljubljana Local Court, applying by analogy, in accordance with the instructions of the Constitutional Court, the provisions of the 2006 Act, dismissed the applicant’s claim. Referring to the case-law of the European Court of Human Rights, it held that it had been reasonable to suspend the examination of the applicant’s claim pending the outcome of some similar cases and of the proceedings before the Constitutional Court (see paragraph 15 above). It held that it could not identify any unreasonable delays in these similar cases, which took five years at three levels of jurisdiction, of which three years were before the Constitutional Court. The applicant appealed. 25. On 13 April 2011 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged an application for leave to appeal on points of law and a constitutional appeal. 26. On 14 July 2011 the Supreme Court dismissed the applicant’s request for leave to appeal on points of law. 27. On 8 May 2012 the Constitutional Court rejected the applicant’s constitutional appeal. | 1 |
test | 001-145012 | ENG | UKR | COMMITTEE | 2,014 | CASE OF LIVADA v. UKRAINE | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Aleš Pejchal;André Potocki;Angelika Nußberger | 5. The applicant was born in 1975 and lived in Balakliya. 6. On 7 October 2003 the applicant was admitted to hospital to undergo treatment for drug addiction. 7. On 11 October 2003, in the course of a police operation, an undercover police agent bought a certain amount of cannabis from the applicant when he was in hospital. After the sale was completed it was documented in the presence of two witnesses. The applicant was further searched and some additional quantities of the drug were seized. 8. On the same day the police officers arrested the applicant under Article 263 of the Administrative Offences Code for a violation of the drug circulation rules. Relying on the provisions of that Code, the police detained the applicant for three days pending the results of an expert examination of the seized drugs. 9. On 14 October 2003, upon receipt of the expert report confirming that the seized drug was cannabis, the investigator of the Kharkiv Region Police Department decided to arrest the applicant and detain him further under Articles 106 and 115 of the Code of Criminal Procedure, considering that the sale of cannabis in hospital constituted a crime under Article 307 § 2 of the Criminal Code. The applicant was questioned on that day. 10. On 15 October 2003 the police also opened criminal proceedings against the applicant under Article 309 § 2 of the Criminal Code, noting that on 11 October 2003 they had seized some additional quantities of cannabis from him which he had transported to and kept in the hospital. 11. On 17 October 2003 the applicant was brought before the Leninskyy District Court of Kharkiv, which ordered his pre-trial detention as a preventive measure. The court noted that the charges against the applicant were serious, that he was not in employment and had committed crimes while being treated in a hospital. For these reasons the court concluded that the applicant might abscond from justice, obstruct the investigation, or reoffend. 12. On 18 December 2003 the criminal case file arrived at the Kominternivskyy District Court of Kharkiv (“the first-instance court”) for the applicant to be tried. 13. On 26 December 2003 the first-instance court committed the applicant for trial. It decided that the preventive measure applied in respect of the applicant, namely, custody, should remain the same. 14. On 4 May 2004 the applicant requested the first-instance court to release him under a written obligation not to abscond. 15. On 9 June 2004 the first-instance court rejected the applicant’s request. The court noted that there had been no grounds to consider that the reasons justifying the earlier court decision of 17 October 2003 on the applicant’s detention were no longer valid. The applicant’s reference to the illness of his mother and the death of this father was not relevant. Likewise, his acknowledgment of guilt was irrelevant and could only be taken into account for mitigation of sentence. 16. On 23 December 2004 the first-instance court ruled that the preventive measure in respect of the applicant should remain the same, without specifying the reasons. 17. On 10 March 2006 the local prosecutor’s office refused to open a criminal investigation in respect of the applicant’s allegations that his initial detention was unlawful. 18. On 27 April 2006 the applicant lodged a request to have the preventive measure changed. On the same day the first-instance court rejected the request as unfounded. The court noted that there were no grounds to consider that the reasons justifying the earlier court decision of 17 October 2003 on the applicant’s detention were no longer valid; the allegations of the aggravation of the applicant’s health were not confirmed by the materials in the case file and the applicant’s contentions that he was the only source of support for his mother were not convincing. 19. On 25 May 2006 the applicant and his mother, who had joined the proceedings as the applicant’s defence counsel, lodged a new request for release. The applicant’s mother specified that she could not work for health reasons and the applicant was her only support. On the same day the first-instance court rejected the request, noting that the reasons already given by the court for the applicant’s detention remained valid; the allegations that the applicant was providing support to his mother were not convincing, since at the time of his arrest the applicant had not been in employment, while his mother received a pension; likewise, the applicant could not be released for health reasons as there was no supporting information about his illnesses. 20. On 25 June 2006 the applicant complained to the Kharkiv Region Court of Appeal (“the Court of Appeal”) arguing that his initial detention had not been lawful. 21. On 7 and 11 July 2006 the applicant and his mother lodged requests for the release of the applicant with the first-instance court. The applicant’s mother specified that the applicant had been her only support and that his health was seriously deteriorating. The court dismissed the requests on the same days, repeating its earlier findings in respect of similar requests. 22. On 11 July 2006 the applicant’s mother lodged a complaint with the first-instance court arguing that the applicant’s initial detention under Article 263 of the Code of Administrative Offences, without a court order, had been unlawful. 23. On 19 July 2006 the Court of Appeal replied to the applicant that his complaint regarding the lawfulness of his initial detention would be considered by the first-instance court in the course of the trial in his criminal case. 24. On 10 August 2006 the first-instance court found the applicant guilty of the crimes under Articles 307 § 2 and 309 § 2 of the Criminal Code and sentenced him to five years’ imprisonment combined with confiscation of property. The court further found that the applicant’s contentions that his initial detention had been unlawful were unsubstantiated because there had been sufficient grounds to detain the applicant under Article 263 of the Administrative Offences Code. In particular, his detention for the first three days had been justified as the police had been waiting for the expert report confirming that the seized substance was cannabis. The court also decided that the term of the applicant’s imprisonment should be calculated from 11 October 2003. 25. The applicant appealed against that judgment. 26. On 10 April 2007 the Court of Appeal upheld the findings of the first-instance court, having amended the reasoning as regards the characteristics of the applicant’s crime under Article 309 § 2 of the Criminal Code. The court further reduced the sentence to three and a half years’ imprisonment. | 1 |
test | 001-181843 | ENG | UKR | COMMITTEE | 2,018 | CASE OF RASHITOV AND OTHERS v. UKRAINE | 4 | 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) | André Potocki;Mārtiņš Mits;Síofra O’Leary | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. The applicant in application no. 24048/13 also raised another complaint under the provisions of the Convention. | 1 |
test | 001-163912 | ENG | UKR | CHAMBER | 2,016 | CASE OF TRUTEN v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Sergiy Goncharenko;Síofra O’Leary | 5. On 27 June 2006 a nineteen-year old woman, K., went to a party in Novy Sanzhary, a small town, and never returned home. 6. On 4 July 2006 her relatives reported her disappearance to the police. 7. Having questioned a number of witnesses, the police established that K. had left the party with her cousin R. and the applicant, one of his friends. At about 6 a.m. on 28 June 2006 K., R. and the applicant were seen drinking beer in a café. Several witnesses stated that while the applicant had been in the café he had carried a certain “pennant” of a mobile operator company. Shortly afterwards, a witness saw the applicant walking down a road with his arms around K. After that nobody saw K. 8. R. told the police that in the morning on 28 June 2006 he had left K. with the applicant and had gone to work. 9. On an unspecified date between 4 and 8 July 2006 the police questioned the applicant as a witness in connection with K.’s disappearance. During that questioning the applicant said that in the morning on 28 June 2006 he had left K. with two unknown men, had taken a taxi at a taxi stand and had gone home. Police officer I. brought the applicant to the taxi stand and asked the taxi drivers whether they had seen him on 28 June 2006. The taxi drivers did not recognise the applicant and the applicant could not indicate the car and the driver who had allegedly driven him on 28 June 2006. He also could not provide any details about the appearances of the car or the driver. 10. After the applicant’s questioning as a witness and the visit to the taxi stand (see paragraph 9 above), on 8 July 2006 the police detained the applicant for an “offence of minor public disorder” and placed him in a cell at the Novy Sanzhary Police Station. Before the Court and the trial court the applicant submitted that he had not committed any such offence and had been placed in the cell without any reasons. No further information about the nature of the offence in question was made available to the Court. 11. Before the Court the applicant stated that on 8 and 9 July 2006, while he had been kept in the cell, police officers had beaten him and threatened him urging him to “tell the truth” about K.’s disappearance. The material in the case file (namely, a copy of the applicant’s indictment) contains reference to the statements of police officers I. and F. saying that on 8 or 9 July 2006, while the applicant was in the cell at the Novy Sanzhary Police Station, they questioned him without a lawyer in connection with K’.s disappearance. On 10 July 2006 they questioned him again on the same issue without a lawyer and he confessed to K.’s murder, robbery and rape. 12. On 10 July 2006 during the questioning by I. and F. the applicant made a written statement saying that in the morning on 28 June 2006, after R. had left, he had decided to walk K. home. As he and K. had been walking down a road, he had tried to hug her but she had struck him in the groin. He had reacted by suddenly grabbing her by the neck with his two hands and holding her for several seconds. K. had fainted so he had let her go. After that he had dragged her body into some bushes, pulled down her knickers, bra and t-shirt and had raped her. After that he had taken 20 Ukrainian hryvnias (approximately 3 euros) from her wallet and had left. As he had been leaving, K. had been unconscious, but he had not known whether she had been dead or alive, he had had no intention to kill K. when he had grabbed her neck but he had realized that such actions could theoretically result in her death. I. and F. passed the applicant’s written confessions to investigator G. from the local prosecutor’s office. 13. Still on 10 July 2006 investigator G. opened a criminal case against the applicant for the rape, robbery and murder of K. and read him his procedural rights as a suspect, including his rights of defence. The applicant confirmed in writing that he understood his rights. G. also arrested the applicant on suspicion of murder, robbery and rape. 14. Some forty minutes later investigator G. carried out a reconstruction of events in the presence of the applicant, attesting witnesses B. and L., and a forensic medical expert, B. The applicant showed them the place where he had grabbed K. by the neck and her body lying in the bushes. The experts and the investigator inspected the crime scene and collected physical evidence. Investigator G. kept written minutes of the inspection of the crime scene. He noted that the corpse was heavily damaged from decay, worms and insects, it was lying face up with legs spread apart. K.’s bra, t-shirt and knickers were pulled down. Near the corpse the police found a pennant of a mobile operator company and K.’s open wallet. 15. On the same day after the reconstruction of events, investigator G. questioned the applicant in his capacity as a suspect without a lawyer being present. The applicant confirmed his previous statements. 16. In his application form the applicant stated that for the first time he had been allowed to see a lawyer on 22 August 2006. However, from the material in the case file, the authenticity of which the applicant did not dispute before the Court, it follows that on 11 July 2006 the investigator G. appointed lawyer V. to represent the applicant under the legal aid scheme and questioned the applicant in his presence. The applicant confirmed that he had strangled K. with both hands, taken 20 hryvnias from her wallet, put her body in the bushes, pulled down her clothes and raped her. 17. On 12 July 2006 S. was appointed as the applicant’s lawyer instead of V. at the request of the applicant’s father. The applicant confirmed in writing that he wished to have S. as his lawyer. 18. Later that day the police conducted a further reconstruction of events which the applicant, lawyer S., two attesting witnesses and two forensic medical experts took part in. The applicant confirmed that he had strangled K. with both hands, and that after she had fainted he had put her body in the bushes, taken 20 hryvnias from her wallet, pulled down her clothes and raped her. During the reconstruction, he told the medical experts that he had not been ill-treated by the investigative authorities. 19. On 14 July 2006 the applicant was questioned again without a lawyer. Before the questioning he noted in writing that he did not object to being questioned without a lawyer. He described the clothes he had worn on the day of the murder and said that after the murder the clothes had been washed. The police seized the clothes in question from the house of the applicant’s parents. 20. On 18 July 2006 the applicant was examined by a forensic medical expert, who observed no injuries and reported no complaints. 21. On the same date the investigator read the applicant his procedural rights as an accused, including his rights of defence. The applicant indicated that he wanted to have S. as his lawyer. 22. Later that day the applicant was charged with rape, robbery and murder. He was questioned in lawyer S.’s presence and confirmed having strangled K. with both hands, taken 20 hryvnias from her, put her body in the bushes, pulled down her clothes and raped her. 23. Forensic examinations conducted in July and August 2006 revealed that K. had died because she had been strangled by the neck on both sides. The forensic experts did not find on the corpse any forensic evidence (fingerprints, body fluids, genetic material, and the like) originating from the applicant. No such evidence was discovered on the crime scene either. The experts also found no forensic evidence of rape on the body because its soft tissues had been destroyed by decay and worms. However, in their report the forensic medical experts noted that the corpse’s position and the fact that the clothes on it had been displaced proved that K. had been raped. 24. On 9 September 2006 the applicant confirmed that he wished to have S. as his lawyer. Later that day he was questioned in S.’s presence and said that he had not intended to kill or rape K. He had only decided to rape her after she had fainted. He said that he had not taken 20 hryvnias from K.’s wallet. In fact, he had seen 20 hryvnias on the ground near her body, decided that they had fallen from his own pocket and had taken them. He also said that he had given his earlier statements voluntarily without being physically or psychologically coerced into doing so. 25. Witnesses questioned during the pre-trial investigation stated that the pennant found on the crime scene looked exactly as the one which they had seen on the applicant in the morning on 28 June 2006 (see paragraph 7 above). The applicant did not deny that it was the same pennant. 26. On 19 September 2006 the investigator granted the applicant’s request to have his mother appointed as his representative. 27. On the same day the applicant was informed that the pre-trial investigation was completed and the indictment was drafted. The applicant was allowed to study the case file with S. and his mother. 28. On 28 September 2006 the case was sent for trial to the Poltava Regional Court of Appeal. 29. On 16 November 2006, during a court hearing at which lawyer S. was present, the applicant stated that after K. had kicked him in the groin he had suddenly struck her on the neck with one hand. She had fainted and he had put her body in the bushes and left. He denied having strangled K. with his two hands, robbed her, pulled down K.’s clothes, and raped her. He submitted that the police had detained him several days before 10 July 2006, kept him in a cell and ill-treated him until he agreed to confess to the murder, robbery, and rape. 30. The court ordered the prosecution authorities to conduct a preinvestigation inquiry into the applicant’s allegation of ill-treatment. 31. On 5 February 2007 the Novi Sanzhary prosecutor’s office refused to institute a criminal investigation into the applicant’s complaint of illtreatment after questioning F. and I., who denied that they had subjected him to any pressure. Copies of the written minutes of the questioning of F. and I. are not available to the Court. 32. The applicant requested the Poltava Regional Court of Appeal to send his case for additional investigation on the ground that his right to defence had been restricted on 10 July 2006 when he had been questioned without a lawyer. On 23 October 2007 the Poltava Regional Court of Appeal rejected that request noting that although the applicant’s right to legal assistance had indeed been restricted on 10 July 2006, the situation had been remedied because starting from 11 July 2006 the applicant had been represented by a lawyer and confirmed his self-incriminating statements in his presence. 33. The court questioned F. and I. and the attesting witnesses present during the reconstruction of events on 10 July 2006. They all denied that the applicant had been coerced. The forensic experts who had examined K.’s body were questioned by the court; they refuted the applicant’s claim that he had struck the victim once on the neck. They said that her injuries proved that she had died because she had been strangled by the neck on both sides, in the exact same way the applicant had described during the pre-trial investigation. 34. Being questioned at a court hearing in the presence of a lawyer the applicant stated that he had involuntarily killed K. by striking her with one hand, he had not strangled, robbed or raped her. According to him, the police had pulled down K.’s clothes, put her body face up and spread her legs because they wanted to accuse the applicant of her rape. 35. On 20 November 2007 the Poltava Regional Court of Appeal convicted the applicant of robbery, rape, and murder of K. and sentenced him to fourteen and a half years’ imprisonment. The court found that the applicant had wanted to rob and rape K. and had strangled her in order to supress her resistance. The court referred to the statement which the applicant had made in the presence of his lawyer, the minutes of the inspection of the crime scene on 10 July 2006, the results of the forensic examination of K.’s body and other material evidence found on the crime scene, forensic expert’s statements made before the court, and statements of witnesses who on 28 June 2006 had first seen the applicant with R. and K. and then later with K. alone walking down the road. The court also noted that the pennant which the applicant had with him when he had been in the café (see paragraph 7 above) had been later found on the crime scene. The court also referred to the statements of witnesses who had seen that on 27 June 2006 K. had with her a note of 20 hryvnias. The conclusion that K. had been raped was made having regard to the position of K.’s body when it had been discovered by the police and the fact that her clothes had been pulled down. In its reasoning the court did not refer to the clothes which the applicant described on 14 July 2006 (see paragraph 19 above) as an evidence of his guilt. However, in the operative part of the judgment the court ordered the police to return the clothes to the applicant’s mother. As to the applicant’s allegation of ill-treatment, the court dismissed this as unsubstantiated referring to the prosecutor’s decision of 5 February 2007. 36. The applicant appealed to the Supreme Court. He complained, in particular, that the trial court had relied on his confessions extracted under duress and without a lawyer. 37. On 27 March 2008 the Supreme Court upheld the judgment of 20 November 2007. It noted, in particular, that when convicting the applicant the trial court had mainly relied on the statements which he had made in the presence of the lawyer S. on 9 September 2006. 38. In a letter to the Court in September 2009, the applicant described the conditions of his detention in Poltava SIZO. He stated that he had been held there since 27 August 2006 in a cell measuring approximately 15 square metres with three other inmates. The window had been covered by a plastic sheet making it impossible to open. Because of this no fresh air had entered the cell and in summer, the temperature would sometimes reach 45oC. He had never been allowed to leave the cell. The food had been inadequate. 39. The applicant submitted photos of a building which he claimed was Poltava SIZO. The windows appear to have bottom-hinged shutters made of transparent plastic. On the photographs the shutters are open, and there are several tens of centimetres of space between the window and shutter and the shutter and wall. 40. The Government submitted that during his detention in the SIZO, the applicant had been held in various cells and it was unclear which of them he had been referring to in his letter to the Court. From 29 December 2008 to 26 January 2009 he had been detained with three other detainees in cell no. 135, which measured 10.34 square metres. He had therefore enjoyed 2.6 square metres of personal space. From 26 January 2009 to 12 March 2010 he had been detained with three other inmates in cell no. 24, which measured 12.42 square metres. The space allocation for one person had therefore been 3.1 square metres. Both cells were equipped with four beds. The SIZO windows could be opened and had not been blocked with plastic sheets. The food the applicant had received met the standard set by domestic law. The Government did not deny that the applicant had been unable to leave the cells he had been held in. | 1 |
test | 001-150234 | ENG | LVA | CHAMBER | 2,015 | CASE OF ELBERTE v. LATVIA | 1 | Preliminary objections joined to merits and dismissed (Article 35-3 - Ratione materiae;Ratione personae);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1969 and lives in Sigulda. She is the widow of Mr Egils Elberts (“the applicant’s husband”), a Latvian national who was born in 1961 and who died on 19 May 2001. 6. On 19 May 2001 the applicant’s husband was involved in a car accident in the Allaži parish. An ambulance transported him to Sigulda Hospital but he died on the way there as a result of his injuries. He was placed in the mortuary at Sigulda Hospital. The applicant’s mother-in-law, who worked at Sigulda Hospital and thereby learnt about her son’s death immediately, stayed next to his body at Sigulda Hospital until it was transported to the State Centre for Forensic Medical Examination (Valsts tiesu medicīnas expertīžu centrs) (“the Forensic Centre”) in Riga. 7. At 5 a.m. on 20 May 2001 the body was delivered to the Forensic Centre in order to establish the cause of death. Between 1 p.m. and 3 p.m. an autopsy was carried out and numerous injuries were found to the deceased’s head and chest, including several broken ribs and vertebrae. There were bruises on his right shoulder, thigh and knee. A forensic medical expert, N.S., classified the injuries as serious and life-threatening and established a causal link between them and his death. 8. According to the Government, after the autopsy N.S. had verified that there was no stamp in Mr Elberts’ passport denoting his objection to the use of his body tissue and he had removed tissue from Mr Elberts’ body with a total area of 10 cm x 10 cm – the outer layer of the meninges (dura mater). According to the applicant, N.S. could not have checked whether or not there was a stamp in Mr Elberts’ passport because at that time it had been at their home in Sigulda. The applicant submitted that the area of removed tissue was larger than 10 cm x 10 cm and that it was not only dura mater that had been removed. 9. On 21 May 2001 the prosecutor’s office issued a permit to bury the body. According to the applicant, on 21 or 22 May 2001 her sister had arrived at the Forensic Centre with a view to obtaining the certificate showing the cause of death, in relation to which she had signed the Forensic Centre’s registration log. On 22 May 2001 her sister submitted that document, together with Mr Elberts’ passport, to the relevant authority in Sigulda to obtain the death certificate. 10. According to the Government, on 25 May 2001 the body of Mr Elberts had been handed over to a relative. According to the applicant, his body had been handed over to another person who was merely helping with its transportation prior to the funeral. 11. On 26 May 2001 the funeral took place in Sigulda. The applicant first saw her deceased husband when his remains were transported back from the Forensic Centre for the funeral. She saw that his legs had been tied together. He was buried that way. The applicant herself was pregnant at the time with their second child. 12. The applicant was not aware that tissue had been removed from her husband’s body until about two years later, when the Security Police informed her that a criminal inquiry had been opened into the illegal removal of organs and tissue, and that tissue had been removed from her husband’s body. 13. On 3 March 2003 the Security Police (Drošības Policija) opened a criminal inquiry into the illegal removal of organs and tissue for supply to a pharmaceutical company based in Germany (“the company”) between 1994 and 2003. The following sequence of events was established. 14. In January 1994 the predecessor institution of the Forensic Centre concluded an agreement with the company to cooperate for the purpose of scientific research. Under the agreement various types of tissue were to be removed from deceased persons ‒ selected by the Forensic Centre in accordance with international standards ‒ and sent to the company for processing. The company transformed the tissue received into bio-implants and sent them back to Latvia for transplantation purposes. The Ministry of Welfare agreed to the content of the agreement, reviewing its compliance with domestic law on several occasions. The Prosecutor’s Office issued two opinions on the compatibility of the agreement with domestic law and, in particular, with the Law on the Protection of the Bodies of Deceased Persons and the Use of Human Organs and Tissue (“the Law”). 15. Any qualified member of staff (“expert”) of the Forensic Centre was allowed to carry out the removal of tissue on his or her own initiative. The Head of the Thanatology Department of the Forensic Centre was responsible for their training and the supervision of their work. He was also responsible for sending the tissue to Germany. The experts received remuneration for their work. Initially, the tissue removal was performed at forensic divisions located in Ventspils, Saldus, Kuldīga, Daugavpils and Rēzekne. After 1996, however, tissue removal was carried out only at the Forensic Centre in Riga and the forensic division in Rēzekne. 16. Under the agreement, experts could remove tissue from deceased persons who had been transported to the Forensic Centre for forensic examination. Each expert was to verify whether the potential donor had objected to the removal of organs or tissue during his or her lifetime by checking his or her passport to make sure that there was no stamp to that effect. If relatives objected to the removal, their wishes were respected, but the experts themselves did not attempt to contact relatives or to establish their wishes. Tissue was to be removed within twenty-four hours of the biological death of a person. 17. Experts were obliged to comply with domestic law but, according to their own testimonies, not all of them had read the Law. However, the content of it was clear to them as the Head of the Thanatology Department of the Forensic Centre had explained that removal was allowed only if there was no stamp in the passport denoting a refusal for organs or tissue to be removed and if the relatives did not object to the removal. 18. In the course of the inquiry the investigators questioned specialists in criminal law and the removal of organs and tissue. It was concluded that, generally speaking, two legal systems exist for regulating the removal of organs and tissue – “informed consent” and “presumed consent”. On the one hand, the Head of the Forensic Centre, the Head of the Thanatology Department of the Forensic Centre and the experts at the Forensic Centre were of the opinion that at the relevant time (that is to say, after the Law’s entry into force on 1 January 1993) there had existed a system of “presumed consent” in Latvia. These persons were of the view that the system of presumed consent meant that “everything which is not forbidden is allowed”. The investigators, on the other hand, were of the opinion that section 2 of the Law gave a clear indication that the Latvian legal system relied more on the concept of “informed consent” and, accordingly, removal was permissible only when it was (expressly) allowed, that is to say when consent had been given either by the donor during his or her lifetime or by the relatives. 19. More particularly, as regards the removal of tissue from the applicant’s husband’s body, on 12 May 2003 the expert N.S. was questioned. Subsequently, on 9 October 2003 the applicant was recognised as an injured party (cietušais) and she was questioned on the same date. 20. On 30 November 2005 it was decided to discontinue the criminal inquiry into the activities of the Head of the Forensic Centre, the Head of the Thanatology Department of the Forensic Centre and the Head of the Rēzekne Forensic Division in respect of the removal of tissue. The above considerations were noted down in the decision (lēmums par kriminālprocesa izbeigšanu) and differences concerning the possible interpretations of domestic law were resolved in favour of the accused. Moreover, the 2004 amendments to the Law were to be interpreted to mean that there was a system of “presumed consent” in Latvia. It was concluded that sections 2-4 and 11 of the Law had not been violated and that no elements of a crime as set out in section 139 of the Criminal Law had been established. 21. On 20 December 2005 and 6 January 2006 prosecutors dismissed complaints lodged by the applicant and held that the decision to discontinue the inquiry was lawful and justified. 22. On 24 February 2006 a superior prosecutor of the Office of the Prosecutor General examined the case file and concluded that the inquiry should not have been discontinued. He established that the experts at the Forensic Centre had breached provisions of the Law and that the tissue removal had been unlawful. The decision to discontinue the inquiry was quashed and the case file was sent back to the Security Police. 23. On 3 August 2007 the criminal inquiry, in so far as it related to the removal of tissue from the body of the applicant’s deceased husband, was discontinued owing to the expiry of the statutory limitation period of five years. However, the legal ground given for this discontinuation was the absence of any elements of a crime. On 13 August 2007 the applicant was informed of that decision. On 19 September and 8 October 2007, in response to complaints lodged by the applicant, the prosecutors stated that the decision had been lawful and justified. 24. On 3 December 2007 another superior prosecutor of the Office of the Prosecutor General examined the case file and concluded that the inquiry should not have been discontinued. She established that the experts at the Forensic Centre had breached provisions of the Law and that the tissue removal had been unlawful. The decision to discontinue the inquiry was once again quashed and the case file was again sent back to the Security Police. 25. On 4 March 2008 a new decision to discontinue the criminal inquiry was adopted, based on the legal ground of the expiry of the statutory limitation period. On 27 March 2008, in response to a complaint from the applicant, the prosecutor once again quashed the decision. 26. A fresh investigation was carried out. During the course of that investigation it was established that in 1999 tissue had been removed from 152 people; in 2000, from 151 people; in 2001, from 127 people; and in 2002, from 65 people. In exchange for the supply of tissue to the company, the Forensic Centre had organised the purchase of different medical equipment, instruments, technology and computers for medical institutions in Latvia and the company had paid for these purchases. Within the framework of the agreement, the total monetary value of the equipment for which the company had paid exceeded the value of the removed tissue that was sent to the company. In the decision of 14 April 2008 (see immediately below) it was noted that the tissue was not removed for transplantation purposes in accordance with section 10 of the Law but was actually removed for transformation into other products to be used for patients not only in Latvia, but also in other countries. 27. On 14 April 2008 the criminal inquiry was discontinued owing to the expiry of the statutory limitation period. In the decision it was noted that whenever an expert from the Rēzekne Forensic Division, for example, had interviewed the relatives prior to the removal of organs or tissue, he had never expressly informed them about such potential removal or indeed obtained their consent. According to the testimonies of all the relatives, they would not have consented to the removal of organs or tissue had they been informed and their wishes established. According to the experts’ testimonies, they had merely checked passports for stamps and had not sought relatives’ consent as they had not been in contact with them. It was also noted that with effect from 1 January 2002, information was to be sought from the Population Record, which the experts had failed to do. It was concluded that the experts, including N.S., had contravened section 4 of the Law and had breached the relatives’ rights. However, owing to the fiveyear statutory limitation period (which started running on 3 March 2003) the criminal inquiry was discontinued, and on 9 May and 2 June 2008 the prosecutors upheld that decision in response to complaints lodged by the applicant. The applicant lodged a further complaint. 28. In the meantime, the experts, including N.S., lodged an appeal contesting the reasons for the discontinuation of the criminal inquiry (kriminālprocesa izbeigšanas pamatojums). They contested their status as the persons against whom the criminal inquiry concerning unlawful tissue removal had been instigated because they had not at any stage been informed about this inquiry and argued that, accordingly, they had been unable to exercise their defence rights. On 26 June 2008 in a final decision the Riga City Vidzeme District Court upheld their appeal (case no. 1840000303), quashed the 14 April 2008 decision and sent the case file back to the Security Police. The court found as follows: “Notwithstanding the fact that a certain proportion of the transplants were not returned to be used for patients in Latvia, there is no evidence in the case file that they were used for processing into other products or for scientific or educational purposes. Therefore, the court considers that there is no evidence in the case file that the removed tissues were used for purposes other than transplantation... There is no evidence in the case file demonstrating that the removal of tissue for transplantation purposes had been carried out disregarding the deceased person’s refusal, as expressed during his lifetime and recorded in accordance with the law in force at the relevant time, or disregarding any refusal expressed by the closest relatives. Taking into account the fact that legislative instruments do not impose any obligation on the experts who carry out the removal of tissue and organs from deceased persons’ bodies to inform persons about their rights to refuse tissue or organ removal, the court considers that the experts did not have any obligation to do so; by not informing the deceased person’s relatives about their intention to remove tissue, the experts did not breach the provisions of the [Law], as effective from 1994 to March 2003. Section 4 of the [Law] provides for the right of the closest relatives to refuse the removal of the deceased person’s organs and/or tissue, but does not impose an obligation on the expert to explain these rights to the relatives. Given that there are no legislative instruments which impose an obligation on the experts to inform relatives about their intention to remove tissue and/or organs and to explain to the relatives their right to object by refusing their consent, the court considers that a person cannot be punished for a failure to comply with an obligation which is not clearly laid down in a legislative instrument in force. Therefore, the court finds that the experts, by carrying out the tissue and organ removal from the deceased, did not breach ... the [Law]. ... The court finds that the experts’ actions did not constitute the elements of a crime proscribed by section 139 of the Criminal Law; therefore, it is possible to discontinue the criminal proceedings for exonerating reasons – namely on the grounds of section 377 (2) of the Criminal Procedure Law ‒ owing to the absence of the elements of a crime.” 29. On 2 July 2008 the superior prosecutor responded to a complaint lodged by the applicant. She admitted that the inquiry had taken a long time owing to numerous complaints against the decisions. However, she did not find any particular circumstances which would indicate that it had been unduly protracted. At the same time, she informed the applicant that the court had quashed the 14 April 2008 decision upon the appeal by the experts. She further stated that a new decision to discontinue the criminal inquiry had been adopted on 27 June 2008 and that the applicant would soon be duly notified. 30. Indeed, the applicant received the 27 June 2008 decision a few days later. It was reiterated in that decision that the experts did not have any legal obligation to inform anyone about their right to consent to or refuse organ or tissue removal. Section 4 of the Law provided for the right of the closest relatives to object to the removal of the deceased person’s organs and tissue, but did not impose any obligation on the expert to explain these rights to the relatives. A person could not be punished for a failure to comply with an obligation which was not clearly laid down in a legal provision; the experts had therefore not breached the Law. The applicant lodged further complaints. 31. On 15 August 2008 the prosecutor replied, inter alia, that there were no circumstances indicating the desecration of a human body. At the same time, she explained that the experts had performed actions in connection with the unlawful tissue removal in order to use the tissue for medical purposes. After the removal of tissue, other material was commonly implanted to restore the visual integrity of dead bodies. Therefore, the criminal inquiry had concerned actions under section 139 of the Criminal Law and not under section 228 of the Criminal Law proscribing desecration of a dead body. 32. On 10 September 2008 a superior prosecutor replied that there were no grounds for examining the actions of the persons who proceeded with the tissue removal under section 228 of the Criminal Law as desecration of a dead body. The experts had proceeded in accordance with an instruction issued by the Ministry of Justice, implanting other material in the place of the removed tissue. According to the instruction, tissue was to be removed in such a way so as not to mutilate the body, and, if necessary, subsequent restoration was to be carried out. 33. On 23 October 2008 another superior prosecutor of the Office of the Prosecutor General replied with a final negative decision. | 1 |
test | 001-180658 | ENG | HUN | COMMITTEE | 2,018 | CASE OF NAGY v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 3. The applicant was born in 1967 and lives in Budapest. 4. He complained of the excessive length of civil proceedings which lasted six years and four months (between 26 November 2007 and 2 April 2014) for two levels of jurisdiction. | 1 |
test | 001-179421 | ENG | RUS | CHAMBER | 2,017 | CASE OF MALININ 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 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 1979 and lives in Nizhniy Novgorod Region. 6. On 25 January 2006 the applicant’s wife, I., gave birth to a son, N. On 25 August 2008 I. gave birth to another son, V. The family lived in Vladimir. 7. In July 2011 the applicant and I. divorced. 8. On 8 October 2011 the applicant took the children away from their home in Vladimir and brought them to the town of Shakhunya in Nizhniy Novgorod Region where his mother lived. He did not obtain I.’s consent. 9. On an unspecified date the applicant applied to the Shakhunskiy District Court of Nizhniy Novgorod Region for a residence order under which N. and V. would live with him in Shakhunya. On 24 October 2011 I. lodged a counterclaim, asking for a residence order under which the children would live with her in Vladimir. 10. On an unspecified date in November 2011 the applicant returned the children to their mother in Vladimir. 11. On 19 January 2012 experts appointed by the court issued their report. They found that the applicant was self-confident, domineering and inclined to lie. He was emotionally stable but, at the same time, easily carried away and fickle in his interests, which could mean that he would not always wish to take care of his children. The applicant strived to spend a lot of time with the children and was against punishing them. I. was seen to be impulsive, anxious, diffident and emotionally unstable. Her intellectual capacities were low. Her manner of upbringing was erratic: she vacillated between excessive demands and punishments and insufficient demands and punishments. Her manner of upbringing could be detrimental to the children’s psychological development. The children were anxious and stressed. N. had a closer emotional connection with his father than with his mother. As regards V., any situations involving his mother were stressful to him because they were associated with excessive demands and punishments. 12. The childcare authority issued an opinion that the children should reside with their mother. The mother had better living conditions. The children attended school (N.), a nursery school (V.) and various extracurricular activities at her place of residence in Vladimir. I. took good care of the children and did not prevent them from seeing their father. 13. The applicant submitted audio recordings of his conversations with his children. A psychologist, who had analysed those recordings, stated in court that the parents were both uncooperative and were both equally responsible for the stress from which N. and V. suffered. The audio recordings submitted by the applicant showed that he had tried to manipulate the children into saying that they wanted to live with him. In her opinion, the children had a stronger attachment to the mother. It was preferable that they lived with her in Vladimir where the living conditions were more comfortable and where they had constantly lived since their birth. 14. On 20 February 2012 the Shakhunskiy District Court granted I.’s application for a residence order in her favour and dismissed a similar application by the applicant. The court doubted the authenticity of an employment certificate from a private company submitted by the applicant. Given that he had not produced any official documents confirming his employment, the court found that he had not proved that he had a permanent income. There was no evidence that the applicant had supported his children financially during the period since his separation from I. in February 2011 until October 2011, when the children had been living with their mother. He had started to pay child maintenance only after he had lodged his application for a residence order in October 2011. The applicant had moreover asked that the children’s residence be fixed at his mother’s address, which showed that he did not have any intention of taking care of them personally. It was clear from the audio recordings submitted by the applicant, as analysed by a psychologist, that the applicant had attempted to manipulate the children and to force them to make a choice between the parents. He was therefore willing to reach his aims by any means, even at the price of making his children suffer. He had moreover taken the children away from their home in Vladimir and brought them to his mother’s residence in Shakhunya without I.’s consent. According to witness statements, I. had always taken good care of the children. It was I. who had always accompanied them to school and extracurricular activities. The fact that she had a partial disability had never so far prevented her from raising them and caring for them. The fact that the applicant’s living conditions were better was insufficient in itself for making a residence order in his favour. Nor was the court convinced by the applicant’s assertion that the children had a stronger attachment to him than to their mother. The children had always lived with their mother, except for several weeks during the summer holidays when they had stayed with him at his mother’s residence in Shakhunya. There was no evidence that I. had shouted or excessively punished the children. Although the experts had indeed found her manner of upbringing to be erratic, their report did not mention that she could cause detriment to their psychological development. Moreover, it was evident from the audio recordings that it was the applicant who had tried to turn the children against their mother. The childcare authorities had also considered that it was in the children’s interest to live with the mother. Given that I. had never prevented the applicant from seeing the children, the applicant would be able to visit them as often as he liked, while the children would continue living in the environment familiar to them. 15. On 29 May 2012 the Nizhniy Novgorod Regional Court upheld the judgment on appeal, finding that it had been lawful, well reasoned and justified. The applicant’s cassation appeal was rejected by a judge of the Nizhniy Novgorod Regional Court on 30 November 2012. 16. In January 2013 the applicant applied to the Oktyabrskiy District Court of Vladimir for a reconsideration of the children’s residence arrangements. He asked for a residence order under which N. and V. would live with him in Vladimir. He submitted, in particular, that the children wished to live with him. He had been picking them up from school almost every day lately and bringing them back to I. only to sleep. I. shouted at the children, slapped them and humiliated them. She did not work and lived on social benefits and child maintenance. In the alternative, he asked for a contact order, claiming that I. occasionally prevented him from seeing the children. 17. On 4 March 2013 N. and V. were assessed by a psychologist who found that their psychological state was good. They were resigned to their parents’ divorce and no longer experienced any negative emotions in that connection. Their relationship with their mother was friendly and supportive. They considered her as family, while their father was considered to be a friend who came regularly to play with them. 18. On 22 March 2013 the childcare authority issued its opinion on the case. It found that both parents had satisfactory living conditions. N. had expressed a wish to live with the applicant. The childcare authority considered that it was desirable to perform a psychological expert examination of the children to assess their attachment to each parent. However, I. objected to any assessment of her children by a psychologist. The childcare authorities had however learned that she had secretly seen a psychologist. The children had told the psychologist that they wished to live with their father. However, given that the children had not yet reached an age at which they were able to form their own opinions on the matter, as they were still highly impressionable and changeable, the childcare authority considered that it was possible for the children to continue living with their mother. The applicant should be able to have regular contact with the children for two weekends per month. 19. On 6 May 2013 the Oktyabrskiy District Court rejected the applicant’s application for a residence order and maintained the residence order in favour of I. It found it established that I. was unemployed and that the applicant had a permanent job. The living conditions of both parents were satisfactory. The court took note of the expert report of 19 January 2012 (see paragraph 11 above), observing that the experts had found that the parent-child relationships were complicated in the applicant’s family. The expert report did not however contain an explicit finding that the children were attached to their father more than to their mother. The applicant had not proved that I. had shouted at the children, humiliated them or neglected her parental responsibilities. Evidence showed that she was taking good care of the children. There was therefore no reason to change the children’s residence arrangements established by the judgment of 20 February 2012. 20. The court further held that N. and V. were entitled to maintain contact with their father and his paternal family and determined the contact schedule as follows. The applicant was to be able to have contact with the children each weekend from 5 p.m. on Saturday until 7 p.m. on Sunday at the applicant’s place of residence, with the mother’s prior agreement. 21. On 25 September 2013 the Vladimir Regional Court upheld the judgment on appeal. A cassation appeal by the applicant was rejected by a judge of the Vladimir Regional Court on 14 May 2014. 22. On 4 October 2013 the applicant lodged a new application for a residence order in his favour with the Oktyabrskiy District Court. He submitted that V. currently lived with him and did not want to return to his mother who shouted at him and physically punished him. Both V. and N. had stated many times that they wanted to live with him. He devoted a lot of time to the children by picking them up after school, bringing them for walks and educating them. He had a comfortable and stable income and good living conditions. By contrast, I. did not work and did not have any income except social payments and the child maintenance payments that she received from the applicant. It was therefore the applicant who maintained the children financially. The applicant further relied on the expert report of 19 January 2012 (see paragraph 11 above) from which it was apparent that the children had a stronger attachment to their father than to their mother, that any situations involving their mother were stressful for them and that the mother’s methods of upbringing were detrimental to the children’s psychological development. The applicant submitted audio recordings of many conversations he had had with the children between March 2012 and September 2013. The children invariably stated that they wanted to live with the applicant, complained that their mother shouted at them and whipped them with a belt, and protested, crying, that they did not want to return living with her. 23. On 19 February 2014 the childcare authority issued its opinion on the case. It found that V. had indeed lived with the applicant during his (V.’s) illness from 25 September to 31 October 2013. He had however then returned to his mother. The children also stayed with the applicant on weekends. The applicant always accompanied V. to nursery school and N. to extracurricular activities. He paid child maintenance without delay and regularly gave additional financial support to the children. The applicant and I. were attending mediation sessions. The applicant was in permanent employment and had a high stable income. I. was partly disabled and did not work. Her mother and grandmother helped her in raising the children. According to I., the children were very attached to their father, spoke to him over the telephone every day and spent their holidays with him. The childcare authority concluded that the children were attached to both parents, that I. was taking good care of their health and development and that their living conditions were comfortable. It was therefore possible for the children to continue living with their mother. 24. A representative of the childcare authority stated at the hearing that she had followed the family for some time. She had the impression that the children were equally attached to both parents and both parents took equally good care of them. Recently she noted positive changes in the highly conflictive relationship between the parents. In particular, the mother allowed the father to spend more time with the children than before. The father picked up the children from school and they spent weekends and part of their holidays with him. She considered that there was no reason to change the children’s residence arrangements and recommended that the children should continue living with their mother. 25. I. stated that she loved her children and took good care of them. She also alleged that the applicant’s motives for asking for a residence order in his favour were mercenary as he wanted to use the flat that belonged to the children. She therefore asked that the residence order previously granted to her be maintained. 26. The applicant’s neighbour stated that she often saw the applicant walking and playing with the children. She thought that he was a very good father and that the children loved him. In October 2013 I. had come to the applicant’s flat in the middle of the night on at least three occasions. She had shouted, had threatened to break the windows and to take the children away from the applicant by force. The neighbours had had to call the police, who took I. away. 27. In reply to the applicant’s request to play the audio recordings submitted by him on 4 October 2013 (see paragraph 22 above), the judge stated that it was not necessary because the other party had not contested them. The applicant’s written description of those audio recordings had been examined at the hearing. 28. The applicant also asked that a copy of the expert report of 19 January 2012 be admitted as evidence. Both I. and the childcare authority objected, arguing that the expert examination had been made two years before and was therefore out of date. The court rejected the application, finding that the expert report had been analysed by the courts which had issued previous residence orders. 29. On 19 February 2014 the Oktyabrskiy District Court ordered an expert psychological examination of the children to assess their relationship with both parents. 30. On 8 April 2014 the expert found that it was not possible to make an expert report because I. had refused to come to the examination or to bring the children. The court considered that it was not necessary to reiterate the order for an expert examination as there was sufficient material for making a decision on the case. 31. On 8 April 2014 the Oktyabrskiy District Court rejected the applicant’s application for a residence order in his favour. The court found no circumstances warranting the change of the residence arrangements established in the residence orders of 20 February 2012 and 6 May 2013. It had no reason to doubt that I. loved her children and took good care of them. The applicant’s allegations that I.’s manner of upbringing were detrimental to the children’s development had not been confirmed by the evidence in the case. The criminal proceedings on charges of fraud against her had been discontinued. Her living conditions were satisfactory. The fact that she had no employment or income did not justify granting a residence order to the applicant. She did not prevent the applicant from seeing the children as much as he liked. As indicated in the judgment of 6 May 2013, the expert report of 19 January 2012 did not contain an explicit finding that the children were more attached to their father than to their mother. The childcare authorities had found that the children had been equally attached to both parents. There were therefore no reasons to issue a residence order in favour of the applicant. 32. On 1 July 2014 the Vladimir Regional Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified. In particular, it held that the applicant had not proved that there had been sufficient reasons to change the residence arrangements established by the earlier residence orders. No exceptional circumstances warranting the children’s separation from their mother had been established. It had not been proved that the children had had an exceptionally strong attachment to the father or wished to live with him and him only. In such circumstances, and taking into account the children’s age, their established way of life, the satisfactory living conditions of both parents and the opinion of the childcare authorities’ on the case, the decision to maintain the residence order in favour of the mother was in the best interests of the children. The Regional Court further dismissed the applicant’s complaint that the District Court had not assessed the family situation with sufficient thoroughness because it had not questioned the children and had refused to admit the expert report of 19 January 2012 as evidence. The Regional Court held that, given that the children were under ten years old, their opinion on the residence issue could not be taken into account. As regards the expert report of 19 January 2012, it had been made in the framework of separate proceedings and had been already assessed by the courts in those proceedings. The District Court considered that the expert opinion was not necessary because the evidence included in the case file was already sufficient to adjudicate the dispute. 33. A cassation appeal by the applicant was rejected by a judge of the Supreme Court of the Russian Federation on 8 December 2014. 34. On 4 December 2014 the Oktyabrskiy District Court of Vladimir authorised, against the applicant’s will, a trip abroad for the children for the winter holidays. On 15 December 2014 the children left for Germany with their mother. They returned to Russia on 9 January 2015. The decision of 4 December 2014 was later annulled by the Oktyabrskiy District Court because it found that it had no territorial jurisdiction over the case. 35. On an unspecified date I. applied to the Leninskiy District Court of Vladimir for a judicial authorisation for the children to travel to Germany during the approaching school summer holidays, complaining that the applicant had refused to give such an authorisation. The applicant submitted in reply that if the children left for the entire summer holidays he would not be able to see them for three months. He also submitted that there was a risk that the children might not return from Germany. He asked for an interim measure prohibiting the children from leaving Russia pending the proceedings. 36. On 12 March 2015 the Leninskiy District Court rejected the applicant’s application for interim measures, finding that the application of interim measures requested would amount to a prejudgement of the case. 37. On 6 May 2015 the Leninskiy District Court authorised the children’s trip abroad for the period from 1 June to 31 August 2015. The court found it established that I. intended to travel to Germany together with V. and N. during the summer school holidays. She had received an accommodation guarantee from her new partner’s sister, who lived permanently in Germany. The applicant had however refused to give V. and N. an authorisation to travel without giving reasons. The court found that the parents could not exercise parental rights to the detriment of their children’s rights. In particular, the children’s right to travel could not be made dependant on the parents’ willingness to authorise their going abroad, especially in the case of a disagreement between the parents. The court considered that the children’s trip abroad would not breach the applicant’s rights and would encourage the children’s development, education and broad-mindedness. 38. The applicant appealed. He submitted that under domestic law if a child left Russia accompanied by one of the parents an authorisation from the other parent was not required; such authorisation was required only if the child went abroad unaccompanied by the parents. A judicial travel authorisation could be given only if one of the parents had formally objected to the child’s going abroad (see paragraph 51 below). Given that the applicant had never lodged such an objection in accordance with the procedure prescribed by law, the judicial travel authorisation had been unlawful and unnecessary. 39. On 9 July 2015 I. married her partner, a national of Germany. She then left for Germany with N. and V. In September 2015 she gave birth to a child. N. and V. are now living in Germany with their mother, her new husband and their half-brother. 40. The applicant lodged an additional appeal, submitting that although the decision of 6 May 2015 had not yet become enforceable, I. had been able to leave with the children for Germany. That fact had clearly demonstrated that a judicial authorisation was not required for leaving Russia. It had however been used by I. to obtain a German visa for the children, which she could not have otherwise obtained without his agreement. The applicant also complained that the children had not returned to Russia by 31 August 2015, although the judicial authorisation had been valid only until that date. 41. On 2 December 2015 the Vladimir Regional Court upheld the decision of 6 May 2015 on appeal. The Regional Court held that it had been lawful, well reasoned and justified. In particular, it found that the applicant had not submitted to the District Court any evidence showing that the trip abroad would have been contrary to the children’s best interests. 42. On 8 September 2015 the bailiffs service opened, at the applicant’s request, enforcement proceedings in respect of the contact order of 6 May 2013 (see paragraph 20 above). 43. In October 2015 the applicant complained about the bailiffs’ inaction to the Oktyabrskiy District Court. On 16 December 2015 the Oktyabrskiy District Court rejected his complaint, finding that the bailiffs had taken measures to enforce the contact order but enforcement had been impossible through no fault of the bailiffs service, specifically because I. and the children had been living in Germany. On 3 March 2016 the Vladimir Regional Court upheld that decision on appeal. Cassation appeals by the applicant were rejected by a judge of the Vladimir Regional Court on 21 October and then by a judge of the Supreme Court on 30 December 2016. 44. Meanwhile, the bailiffs asked the Oktyabrskiy District Court for a suspension of the enforcement proceedings on the grounds that I. and the children were abroad and it was therefore impossible to take any coercive measures against her. On 8 February 2016 the Oktyabrskiy District Court rejected the bailiffs’ request, finding that the children’s residence abroad was not a sufficient reason to suspend the enforcement proceedings. 45. The applicant also submitted numerous requests to various Russian authorities, including in January 2016 to the Ministry of Education and Science of the Russian Federation, for assistance in recovering his children and in enforcing the contact order of 6 May 2013. In December 2015 he complained of the authorities’ inaction to the Leninskiy District Court. On 4 February 2016 the Leninskiy District Court rejected the applicant’s complaint, finding that those authorities had no competence in the matter. The only authority competent to assist him in re-establishing contact with his children was the bailiffs service. On 12 May 2016 the Vladimir Regional Court upheld that judgment on appeal. 46. According to the Government, in April 2016 the bailiffs service advised the applicant to apply for recognition and enforcement of the contact order to the competent German authorities, via the Ministry of Education and Science of the Russian Federation, in accordance with the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. There is no evidence that the applicant used that procedure. 47. On an unspecified date I. applied to the Leninskiy District Court for a residence order under which N. and V. would live with her in Germany. The applicant lodged a counterclaim, asking for a residence order under which the children would live with him in Vladimir. He also asked for an interim order to return the children to Russia and to ensure that until their return the children communicated with him via VOIP calls every Wednesday, Friday and Sunday at 9 p.m. (Moscow time). On 24 May 2016 the Leninskiy District Court refused the applicant’s application for an interim order, finding that he had not proved that the failure to take interim measures might complicate or make impossible the execution of the forthcoming judgment. On 22 June 2016 the Vladimir Regional Court upheld that decision on appeal. The residence order proceedings are pending. | 0 |
test | 001-142636 | ENG | TUR | CHAMBER | 2,014 | CASE OF ORAN v. TURKEY [Extracts] | 3 | No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);No violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Stand for election;Right to free elections-{general});No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);No violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Stand for election;Right to free elections-{general});No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The applicant was born in 1945 and lives in Ankara. 6. The applicant, who was a professor of political science at the University of Ankara, had stood for the parliamentary elections of 22 July 2007, in the second electoral district of Istanbul, as an independent candidate. He had not been a member of any political party at the material time. 7. With a view to a deeper understanding of the background to the present applications, the Court considers it useful to outline the circumstances under which the parliamentary elections of 22 July 2007 took place. Accordingly it will refer to the relevant passages of Yumak and Sadak v. Turkey ([GC], no. 10226/03, §§ 22-26, ECHR 2008), which read as follows: “22. In early May 2007 the Turkish Parliament decided to hold early parliamentary elections, choosing 22 July 2007 as the date. The decision followed a political crisis resulting from Parliament’s inability to elect a new President of the Republic to follow on from Ahmet Necdet Sezer before the expiry of his single seven-year term of office, on 16 May 2007. In the normal course of events, these elections should have been held on 4 November 2007. 23. Fourteen political parties took part in the elections, which were marked by two characteristics. Firstly, a strong mobilisation of the electorate was observed following the presidential crisis, since the participation rate rose to 84%. Secondly, political parties used two pre-electoral strategies to circumvent the national 10% threshold. The Party of the Democratic Left (DSP) took part in the poll under the banner of the CHP, a rival party, and by that means managed to win thirteen seats. The Party for a Democratic Society (DTP, pro-Kurdish, left-leaning) presented its candidates as independents using the slogan ‘A thousand hopes’; it also supported certain left-wing Turkish candidates. This movement was backed by other small left-wing groups such as the EMEP, the SDP and the ÖDP (the Liberty and Solidarity Party, socialist). More than sixty independent candidates stood for election in about forty provincial constituencies. 24. In the elections the AKP, the CHP and the MHP managed to get over the 10% threshold. With 46.58% of the votes cast, the AKP won 341 seats, 62% of the total. The CHP, with 20.88% of the votes, won 112 seats, 20.36% of the total; however, the thirteen MPs mentioned in paragraph 23 above subsequently resigned from the CHP and went back to the DSP, their original party. The MHP, which polled 14.27% of the votes, won seventyone seats, or 12.9% of the total. 25. The strong showing by independent candidates was one of the main features of the elections of 22 July 2007. There were none in the National Assembly in 1980 but 1999 saw them return, when there were three. In 2002 nine independent MPs were elected from a national total of 260 independent candidates. In the elections of 22 July 2007, twenty-seven independent MPs were elected. In particular, more than twenty ‘thousand hopes’ candidates were elected, after obtaining approximately 2.23% of the votes cast, and joined the DTP after the elections. The DTP, which had twenty MPs, the minimum number to be able to form a parliamentary group, was thus able to do so. The independents also included a socialist MP (the former president of the ÖDP), a nationalist MP (the former president of the Great Union Party – BBP, nationalist) and a centrist MP (the former president of ANAP). 26. A government was formed by the AKP, which again secured an absolute majority in Parliament.” 8. In accordance with Article 94 II a) of Law no. 298 as amended under section 24 of Law no. 3270 of 28 March 1986, electors were able to vote in polling stations set up at customs posts for political parties but not for independent candidates, who included the applicant. 9. In a Decree of 27 May 2007 the Higher Electoral Council (Yüksek Seçim Kurulu) stated that it had chosen 25 June 2007 and 22 July 2007 respectively as the dates for the beginning and end of the parliamentary elections in the polling stations set up at customs posts for nationals who had been resident abroad for over six months. In the Decree the Higher Electoral Council explained that the nationals in question could only vote in those polling stations for political parties. 10. On 3 July 2007, with reference to Articles 67 and 90 § 6 of the Constitution and Article 3 of Protocol No. 1 to the Convention, the applicant lodged with the Higher Electoral Council a request for the annulment of the Decree du 27 May 2007. 11. On 4 July 2007 the Higher Electoral Council dismissed the applicant’s request, on the basis of Article 94 II a) of Law no. 298. It pointed out that this provision could only be modified by a fresh legislative amendment. 12. Section 52 (1) of Law no. 298 on Elections allowed political parties participating in elections to transmit election broadcasts on national radio and television (TRT), subject to certain restrictions, particularly in terms of airtime. 13. The Higher Electoral Council oversaw the implementation of the Law, which laid down sanctions for infringements of the provisions on election broadcasts. 14. Election broadcasts were authorised from 15 to 21 July 2007, that is to say during the week before the elections. 15. According to the applicant, the Law did not allow independent candidates like himself who did not, as a matter of principle, belong to any political party, to electioneer on the national radio and television, or, for that matter, on the private channels. 16. The applicant stressed that one peculiarity of the 22 July 2007 elections had been the large number of independent candidates standing. He considered that this unprecedented phenomenon had stemmed, firstly, from the 10% electoral threshold imposed during the parliamentary elections, and secondly, from the dissatisfaction felt by most people at the material time with the performance of the political parties, whether in power or in opposition. ... | 0 |
test | 001-175846 | ENG | BEL | CHAMBER | 2,017 | CASE OF ROOMAN v. BELGIUM | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano | 6. The applicant was born in 1957. He is detained in the Paifve social-protection institution (“the Paifve EDS”). 7. In 1997 the applicant was convicted of theft and of sexual assault, by the Liège Court of Appeal and the Eupen Criminal Court respectively. The prison sentences were due to end on 20 February 2004. 8. While imprisoned, the applicant committed offences in respect of which fresh proceedings were brought. On 16 June 2003 the Committals Division (chambre du conseil) of the Liège Court of First Instance decided, pursuant to section 7 of the Law of 9 April 1930 on Social Protection in respect of Mental Defectives, Habitual Offenders and Persons Convicted of certain Sexual Offences (the “Social Protection Act”), and on the basis, inter alia, of a neuropsychiatric report by Dr L., dated 15 December 2001, and a report by psychologist H., dated 20 August 2002, to order the applicant’s preventive detention. 9. On 1 August 2003 the Indictment Division of the Liège Court of Appeal upheld that decision. The applicant did not appeal on points of law. 10. On 15 January 2004, based among other elements on a psychiatric report by Dr V. dated 23 September 2003, the Minister of Justice also decided that the applicant was to be detained in a psychiatric institution, pursuant to section 21 of the Social Protection Act, as a continuation of the sentences imposed in 1997. 11. On 21 January 2004 the applicant entered the Paifve EDS, located in the French-speaking region, further to a decision of 16 October 2003 by the Social Protection Board for the Lantin Prison psychiatric wing (the “CDS”). 12. On an unspecified date the applicant made an initial application for release on a trial basis. 13. On 27 January 2006 the CDS postponed its examination of the request for release on a trial basis until March 2006, and recommended finding an institution that could admit the applicant and provide him with therapy in German, the only language he could understand and speak. 14. The application was examined by the CDS on 9 June 2006. At the hearing, the head of the Paifve EDS acknowledged that the institution was unable to provide the therapeutic care recommended by the experts who had already been consulted, given that no German-speaking doctor, therapist, psychologist, social worker or warden was employed in the institution. 15. In consequence, the CDS held: “It is undisputed that the detainee speaks only German, and that the medical, welfare and prison staff in the institution in which he is detained are unable to provide him with any therapeutic or welfare assistance; he has been abandoned to his fate without any treatment since his arrival in Paifve (on 21 January 2004), even if some individuals have, on a voluntary basis, made considerable efforts to explain to him his situation, which he experiences as an injustice; In the present case, the two-fold legal aim of the preventive detention, namely protection of society and of the patient’s health, can only be achieved if the deprivation of liberty is accompanied by the treatment necessitated by the detainee’s mental health; since this double condition is not fulfilled, [Mr] Rooman’s detention is unlawful; ...” 16. The CDS postponed its examination of the application for release on a trial basis until a hearing in September 2006, pending the appointment of German-speaking employees to the Paifve EDS. 17. In accordance with an order by the chairperson of the CDS of 24 September 2006, the applicant was transferred to Verviers Prison so that its German-language psychosocial team could assess his mental health and ascertain whether he posed a danger to the public. On 30 October 2006 the CDS confirmed this order and postponed the case to a later date. 18. On 26 January 2007 the CDS dismissed the application for release on parole. It had been indicated in a report of 24 January 2007, drawn up by the German-language psychosocial team in Verviers Prison, that the applicant had a psychotic personality and paranoid character traits (high self-opinion, feeling of omnipotence, lack of self-criticism and threatening remarks) and that he was refusing any treatment. Furthermore, the CDS noted that there was no institution in Belgium which could meet the security and language requirements in the applicant’s specific case; the only German-language hospital which could be considered was an open hospital, and it had thus to be ruled out in view of the applicant’s mental health. 19. On 14 April 2008 the applicant applied for day release. On 5 June 2008 the CDS noted that it had proved impossible to provide any treatment and that the search for a German-language institution had proved unsuccessful. Accordingly, it ordered the Eupen remand prison to prepare a plan for release on a trial basis, and ordered a new expert report in order to assess the level of danger posed by the applicant. It adjourned examination of the request sine die. 20. Having received a new application from the applicant for release on a trial basis, the CDS held, in a decision of 5 May 2009: “There has been no progress in Mr Rooman’s situation; progress cannot occur until he is in a setting where he can be understood in his own language, like any citizen of this country. A single member of the prison staff, a nurse [A.W.], is temporarily providing him with social contact, whereas a psychiatrist and/or a psychologist should be available to him. The prison authorities have not put forward any kind of solution to this problem, of which its various services are fully aware. Worse, as those authorities are unable to provide him with the necessary treatment, they seem to have resigned themselves to a role that extends no further than an unfair repressive detention. The medical reports and [Dr Ro.’s] expert report indicate that Rooman, who continues to present a danger to society, cannot be released without support and preparation in an institutional setting, something that cannot currently be provided in Belgium, but is available abroad.” 21. In consequence, the CDS invited the Eupen remand prison to prepare, together with applicant, a plan for release on a trial basis, and encouraged the authorities to take, rapidly, the measures necessary to improve the applicant’s situation. It adjourned the case to a later date. 22. On 13 October 2009 the CDS found: “In the years since this file was opened (October 2003), the persons involved in this case have been thwarted by the fact that the detainee speaks and understands only one language, and that the authorities have no German-speaking staff available for him, with the exception of one nurse [A.W.] (who is apparently due to retire in the near future); In September 2005 Doctor [Ri.], expert, wrote that relaxation of the detainee’s regime ‘is possible only in parallel with successful treatment, assessed by predefined steps. The treatment must begin in a secure establishment, then in a closed institution...’ Given that treatment in Germany is impossible, it was to begin in Paifve with German-speaking psychiatrists and therapists; Since that time the detainee’s situation has not changed: he converses with and leaves the building only in the company of the sole German-speaking member of staff, and a treatment programme has not even been put in place. No satisfactory follow-up has been given to the requests by the [Social Protection] Board for an end to be put to this unlawful situation for Mr Rooman, who is deprived of his freedom in order, on the one hand, to protect society from possible dangerous conduct by him, and on the other, to provide him with the treatment necessary for his reinsertion;... In the light of the authorities’ failure, the question now before the Board is whether there exists, outside the social-protection facility, a unit or persons who could provide home-based therapy for Mr Rooman; ...” 23. On those grounds, and pointing out that German was one of the national languages and that the applicant was thus entitled to speak, be understood and receive treatment in that language, the CDS asked the Eupen remand prison to search in and around Verviers and Eupen for either a mental health unit, or a doctor or clinic, which could provide home-based therapy for the applicant in his mother tongue. It reserved its decision on the application for release on parole. 24. On 12 January 2010 the applicant submitted pleadings in support of his application for release. He criticised the failure to provide him with therapeutic care and the effect on his health of any prospect of seeing his situation improve. As his main submission, he requested his immediate release on the grounds of the illegality of his detention. Alternatively, he asked that the CDS impose an obligation on the relevant authorities to take all necessary measures so that he would receive the treatment required by his mental-health condition in his mother tongue. 25. By an interlocutory decision of 13 January 2010, the CDS noted that the applicant’s situation had not changed and that the reply from the Eupen judicial assistance unit left no hope of ensuring that the applicant would receive appropriate treatment, in a secure establishment or elsewhere. The CDS considered that it was necessary to attempt one last plea to the Minister of Justice, whose intervention had previously led to some changes, even if they were insufficient to resolve the problem. The CDS accordingly ordered that an “official denunciation” of the applicant’s situation be sent to the Minister of Justice. 26. On 29 April 2010 the CDS noted that the Minister of Justice had not replied to its submission and that the applicant’s situation had worsened, in that he could no longer count on help from the German-speaking nurse A.W., who had left the Paifve EDS. The CDS continued: “It follows from the report [from the psychosocial department] of 30 March 2010 that, except for occasional meetings with a social worker “who speaks German”, the detainee has no social contact in his language and that he has had no opportunity for several months to converse and to gain a fresh perspective in the outside world; the doctor and psychologist who signed this report do not seem particularly convinced by the completion of the ‘ongoing measures (taken) by the department to enable a German-language psychologist to intervene occasionally to provide care for the German-speaking patients in the EDS’; Mr Rooman’s situation is frozen: an ill individual, he is detained in a prison medical institution where no one is able to provide the treatment to which he is entitled; the Minister and his departments are turning a deaf ear, with no concern for the despair to which this manifestly unjust attitude may give rise; In spite of the unlawfulness of Mr Rooman’s detention, his health condition means that release cannot be envisaged unless it is accompanied by therapy and practical support; The [Social Protection] Board has no powers, firstly, to restore the detainee’s basic rights, namely, the rights to liberty, to health care and to respect for his humanity, and secondly, to compel the Minister to put an end to this situation, which his administration has been fully aware of for more than six years.” 27. The CDS decided, while “remaining open to any proposals”, to leave the applicant’s situation unchanged; in other words, it rejected his application for release. 28. The applicant appealed against that decision to the Higher Social Protection Board (“the CSDS”). 29. In parallel, the applicant made an urgent application to the President of the Liège Court of First Instance, in order to have his detention declared unlawful and obtain his immediate release, or, alternatively, to obtain a decision ordering the Belgian State to provide him with the medical care required by his situation. 30. By an order of 12 May 2010, the president of the court held that he did not have jurisdiction, on the grounds that the CDS was the lawful body with power to release the applicant or decide on his continued detention. 31. On 27 May 2010 the CSDS upheld the CDS’s decision of 29 April 2010 to maintain the applicant in detention. Unlike the CDS, the CSDS held that the applicant’s detention was perfectly legal, given that he had been lawfully detained and that he did not fulfil the conditions for definitive or conditional release. Under section 18 of the Social Protection Act, release could only be ordered if the detainee’s mental condition had improved sufficiently and if the conditions for his social reinsertion had been satisfied. However, this was not the situation here. The CSDS also considered that the mere fact that the applicant spoke only German did not mean that the authorities had not taken all the necessary steps to provide him with the treatment required by his condition. 32. The applicant appealed on points of law, alleging a violation of Articles 3 and 5 of the Convention. 33. On 8 September 2010 the Court of Cassation dismissed the appeal on points of law. In response to the argument alleging a violation of Article 5 § 1 of the Convention, it held that legal reasons had been given for the CSDS’s decision and that it had been justified in law. It found: “As preventive detention is primarily a security measure, the therapeutic action necessitated by such detention is not legally required in order for the detention to be lawful, even if its aim, secondary to that of protecting society, is to provide the detained person with the necessary treatment. The social protection boards derive from section 14 (2) of the Act the power, rather than the obligation, to order, in a decision giving specific reasons, placement in an institution that is appropriate in terms of the security measures and the treatment to be given. It follows that execution of the preventive detention measure does not become unlawful solely because it is implemented in one of the institutions created by the government for that purpose, rather than in another institution specifically designated for the possible treatment it might provide.” 34. The argument alleging a violation of Article 3 of the Convention was declared inadmissible, since its examination would require a factual verification of the conditions in which the preventive detention was being conducted and such an examination fell outside the scope of the Court of Cassation’s jurisdiction. For the remainder, the Court of Cassation considered that the CSDS had replied to the applicant’s complaint in finding that the fact that he spoke only German did not mean that the relevant authorities had not taken all the necessary steps to provide him with the care he required. 35. On 13 November 2013 the applicant again applied for release. 36. A report by the psychosocial department of the Paifve EDS, dated 13 January 2014, reiterated that the applicant had a poor command of the French language, and spoke only a few words of French, which did not enable him to conduct a conversation; in consequence, he had very little contact with the other patients and members of staff. The report also referred to a single meeting between the applicant and a German-speaking psychologist in June 2010. The report noted an improvement in the applicant’s behaviour; he was apparently less aggressive and intolerant than before. Further, the applicant had never expressed a wish to meet members of the psychosocial team on a regular basis. The report concluded that he should remain in detention in the Paifve EDS, citing among other reasons his “untreated mental health problems”. 37. On 24 January 2014 the CDS noted, firstly, the content of the reports by Dr Ri., of 5 September 2005, and Dr Ro., of 21 January 2009, which stressed the need for psychopharmacological and psychotherapeutic treatment in a secure establishment, then in a closed institution, before an open facility could be envisaged. The CDS noted that, in the interim, the various attempts to find a solution to the language problem had not succeeded in bringing about a significant improvement in the applicant’s health: the rare outings accompanied by a German-speaking member of the prison staff had been abandoned when this employee, who was not replaced, became unavailable; attempts to find a German-language institution, doctor or therapist had met with failure; no follow-up seemed to have been given to the announcement that a minimum number of German-speaking staff were to be recruited, and the applicant had, of his own accord, declined the assistance of the German-speaking social worker with whom he had occasionally met. The CDS rejected the application for release on parole, finding that the conditions for release (an improvement in the applicant’s mental state and guarantees for his social rehabilitation) were not met. With regard to the alleged absence of treatment in German, the CDS specified: “The detainee claims that he is not receiving the appropriate treatment for his mental health condition in German, his mother tongue, without however describing or even mentioning the treatment that he has allegedly been denied and that he would agree to accept or in which he would take part. The mere fact that he only speaks German does not mean that the Paifve social-protection facility has not taken all the necessary steps to provide him with the care his condition requires. While, as the applicant points out in his submissions, it is for the relevant authorities to take all the necessary measures for his health, it is not, however, within the [Social Protection] Board’s powers to release a detainee who claims to be the victim of shortcomings on the part of the authorities... Nor does the Board have jurisdiction to issue orders to the authorities or to third parties, [or] to penalise their actions or shortcomings ...” 38. On 3 April 2014 the CSDS upheld the decision by the CDS, finding, among other points: “Contrary to what he alleges in his pleadings, the detainee receives all the treatment required by his condition, from competent and qualified staff in the Paifve EDS, and his specific medical needs are fully taken into account. In spite of the treatment given, the detainee’s mental condition has not yet improved sufficiently, on account of his paranoid and psychopathic character traits, his lack of self-criticism and his constant demand. The detainee is thus clearly wrong in attributing the lack of improvement in his mental condition to the language issue alone. The continued preventive detention in a EDS that is adapted to his medical condition of an individual who would represent a danger to the public in the event of release, where his mental condition has not sufficiently improved and the conditions for his social rehabilitation are not met, is not unlawful and does not amount to a violation of the provisions of the [Convention].” 39. On 25 June 2014 the Court of Cassation quashed the decision by the CSDS on the grounds that it had not addressed the applicant’s argument that he was not receiving care appropriate to his situation, in view of the fact that he spoke and understood only German and that no German-speaking staff members were available in the facility where he was being held. The case was sent back to the CSDS with a differently constituted membership. 40. On 22 July 2014 the CSDS issued an interlocutory finding, requesting the CDS to appoint a group of German-speaking experts to update the psychiatric report of 21 January 2009. It instructed the head of the Paifve EDS institution to take all the necessary measures to ensure that the requisite care was made available, by at least providing the services of a German-speaking psychiatrist and psychologist. It ordered that the case be reopened and scheduled a hearing for 17 October 2014. 41. The Court has not been informed of the progress of those proceedings. 42. In the meantime, on 28 March 2014 the applicant brought proceedings against the Belgian State before the President of the French-language Brussels Court of First Instance, as the judge responsible for hearing urgent applications in application of Article 584 of the Judicial Code. He asked for his release or, as a subsidiary measure, the imposition of the measures required by his state of health. 43. By an interlocutory order of 4 July 2014, the president of the court asked the head of the Paifve EDS and Dr B. from the psychosocial unit in that EDS to submit statements concerning the treatment available in the Paifve EDS and the treatment that had in fact been provided to the applicant. 44. Statements submitted by the head of the Paifve EDS and by Dr B. on 28 August 2014 indicated that the applicant now had access to consultations with a German-speaking psychologist and that the authorities had made contact with a German-speaking psychiatrist who had agreed to meet the applicant. 45. In an order of 10 October 2014, the president of the court noted that, until September 2014, the applicant had never had access to a psychiatrist who could communicate with him in German. He had had access to a German-speaking psychologist, outside the EDS, between May and November 2010. He noted that the consultations with the psychologist had come to an end not, as alleged by the State in its pleadings, because the applicant no longer wished to attend them, but because of late payment by the Belgian State of the psychologist’s fees and expenses. The consultations with the psychologist had, however, resumed in July 2014. The president then noted that, until April 2010, the applicant had benefitted from the presence of and care provided by a German-speaking nurse, that that nurse had in the meantime left the Paifve EDS, but that since August 2014 he had been authorised to accompany the applicant on outings. Lastly, the order noted that the applicant had had contacts with a German-speaking social worker, but that he had declined the latter’s services in February 2014. 46. With regard to the main request, the president held that he did not have jurisdiction to order the applicant’s release, as only the social protection bodies had power to do so. With regard to the subsidiary request, the president noted that the applicant had not had access to the mental health treatment required by his condition, and that there was prima facie a violation of his right of access to health care. His situation amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. In consequence, the president ordered the Belgian State to appoint a German-speaking psychiatrist and medical auxiliary for the applicant, subject to a penalty in the event of non-compliance, and to put in place the care routinely provided to French-speaking detainees suffering from a mental illness similar to that of the applicant. 47. On the basis of the information produced, no appeal has been lodged against this order. According to the applicant’s representative, the Belgian State appointed a German-speaking psychiatrist and psychologist, who visited the applicant several times. However, these visits stopped at the end of 2015. 48. In the meantime, on 2 May 2014 the applicant had filed a negligence claim against the Belgian State, on the basis of Article 1382 of the Civil Code. 49. By a judgment of 9 September 2016, the French-language Brussels Court of First Instance held the fact of having failed to provide the applicant with psychological treatment in his mother tongue between 2010 and 2014 to be negligent. It held, in particular: “It is undeniable that the psychiatric and psychological treatment which [the applicant] must enjoy must be provided to him in German, the only language in which he is fluent and, moreover, one of the three national languages in Belgium. However, between 2010 and 2014 [the applicant] received no medico-psychiatric treatment in his own language. Whatever the quality – which is, indeed, undisputed – of the care provided to detainees in the Paifve [EDS], it is totally inappropriate for [the applicant’s] mental-health condition merely on account of the fact that it is not available in German. In spite of the official and repeated denunciations of this situation by the Social Protection Board to the Belgian State since 2010, the latter has taken no steps to correct it. In addition, it has produced no evidence of the least action taken by it to that end. This failure to act amounts to negligence within the meaning of Article 1382 of the Civil Code. ... Moreover, and as [the applicant] also submits, Articles 3 and 5 [of the Convention] require the Belgian State to take the necessary measures to provide him with access to the basic care necessitated by his mental health. ... In the present case, the applicant’s vulnerability on account of the very nature of his psychological disorder and the absence of any genuine possibility of contact in his language have necessarily exacerbated his feelings of distress and anxiety. It is immaterial that, in any event, the [applicant’s] state of mental health does not allow for his release. The mere fact of having been detained for an indefinite period without appropriate care amounts in the present case to a violation of Articles 3 and 5 [of the Convention]. Contrary to the submissions of the Belgian State, the fact that [the applicant] is not always receptive to psychological, medical and social therapy does not allow for minimisation of the Belgian State’s negligent attitude towards a person who suffers from a mental disorder, whose discernment is, by assumption, uncertain. By the same token, at the risk of setting aside the lived experience of the person suffering from a mental disorder, [the applicant’s] stable conduct within the institution does not suffice to establish that he received appropriate care for his condition.” 50. Finding that this absence of treatment had caused mental suffering to the applicant, the court ordered the State to pay him 75,000 euros (“EUR”), an amount assessed ex aequo et bono, in compensation for the period for the January 2010 to October 2014. 51. According to information provided on 19 June 2017 by his representative, the applicant was due to lodge an appeal against this judgment. He challenges the period accepted by the court and argues that the lack of treatment pre-dated 2010; he also complains about a lack of treatment in 2016 and the decision to award compensation ex aequo et bono rather than on a daily basis. | 1 |
test | 001-144108 | ENG | SRB | COMMITTEE | 2,014 | CASE OF MEĆAVA 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) | Ján Šikuta | 4. The applicant was born in 1947 and lives in Smederevo. 5. The applicant was employed by “HP Fagram DP”, a socially-owned company based in Smederevo (hereinafter – “the debtor”). 6. On 30 September 2003 the Smederevo Municipal Court ordered the debtor to pay the applicant certain sums in respect of salary arrears, social security contributions and procedural costs. 7. On 22 October 2003 the judgment became final. 8. On 9 January 2004 the applicant lodged an application for the enforcement of the above court decision with the Smederevo Municipal Court. 9. On 17 March 2003 the court allowed the application and issued an enforcement order. 10. On 1 September 2004 the Požarevac Commercial Court opened insolvency proceedings in respect of the debtor, which led to the ongoing enforcement proceedings before the Smederevo Municipal Court being stayed. 11. In 22 November 2004 the applicant duly registered a claim for the sums specified in the judgment referred to above. 12. On 26 April 2005 the Commercial Court accepted the applicant’s claim. His right to separate settlement from the immovable property of the debtor was contested and he was instructed to initiate separate civil proceedings in order to secure his right to separate settlement of his claim. 13. The applicant did not initiate separate civil proceedings. 14. On 3 April 2008 the Commercial Court adopted the decision on final distribution of the company’s insolvency assets, classifying the applicant into the fourth sequence of payment. In the course of the insolvency proceedings the final judgment in the applicant’s favour was partially enforced. | 1 |
test | 001-161001 | ENG | SRB | CHAMBER | 2,016 | CASE OF MILENKOVIĆ v. SERBIA | 3 | 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;Criminal offence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1969 and lives in Leskovac. 6. On 17 October 2006 the Leskovac police informed the local minor-offence judge and the public prosecutor’s office about a violent incident between the applicant and a certain R.C. that had occurred on 12 October 2006 in a neighbourhood of Leskovac. 7. By a decision of 6 November 2007 the misdemeanour court judge in Leskovac (sudija Opštinskog organa za prekršaje u Leskovcu) found that at about 5.30 p.m. on 12 October 2006 in Leskovac R.C. had verbally insulted the applicant’s children, and the applicant had then punched him several times on the head and injured him. The judge concluded that these actions had been in breach of public order and peace and had thus been contrary to Article 6(3) of the Public Order Act 1992 (see paragraph 21 below under Relevant domestic law and practice). The relevant part of the decision reads: “Defendant[s] R.C. ... and Momčilo Milenković are guilty in that at about 5.30 p.m. on 12 October 2006, in Subotička street in Leskovac, [the former first swore and insulted the applicant’s children], while the latter punched R.C. several times on the head and injured him ...” 8. Each of them was ordered to pay a fine in the amount of 4,000 Serbian dinars (RSD) plus RSD 700 for costs (at that time equivalent to approximately 60 euros (EUR) in total), which in the event of non-compliance would be converted into a prison term of eight days. 9. After an investigation had been conducted, on 4 April 2007 the Leskovac Public Prosecutor’s Office (“the LPPO”) charged the applicant with the criminal offence of inflicting grievous bodily harm on R.C. in connection with the above incident, contrary to Article 121 § 2 of the Criminal Code 1998. The LPPO, as well as the applicant and his family in the capacity of private prosecutors, lodged separate indictments against R.C. for several offences. All the indictments were joined in the same proceedings before the Leskovac Municipal Court. 10. In a judgment of 13 April 2011 the Leskovac Municipal Court found the applicant guilty as charged and sentenced him to three months’ imprisonment. R.C. was found guilty and fined for insulting the applicant’s family and causing minor bodily injuries to the applicant’s mother. The court ordered the applicant to pay RSD 14,739 in court costs, while each party was to cover its own costs and expenses. The relevant part of the decision reads: “Defendant Milenković Momčilo ... is guilty in that at about 4.00 and 4.30 p.m on 12 October 2006 in Subotička Street ... he punched [R.C.] on the left side of the face and, after knocking R.C. down, he continued punching him in the head, thereby causing him a number of grievous bodily injuries dangerous for life, such as: bruising of both eyelids (black eye), bruising of the left cornea, and nose abrasions ...” 11. The applicant appealed, arguing, inter alia, that he had already been punished in respect of the same incident by the Leskovac misdemeanour judge, with the result that the principle of ne bis in idem had been violated (see paragraph 18 below). 12. On 20 March 2012 the Niš Appeals Court upheld the judgment in respect of the applicant and dismissed the charges against R.C. as statute-barred. As regards the principle of ne bis in idem, the court held that the applicant had been found guilty of a misdemeanour against public order and peace in the misdemeanour proceedings, whereas he had been convicted of the criminal offence of grievous bodily harm in the criminal proceedings. According to the court, the descriptions of the acts sanctioned therefore clearly differed. 13. On 19 September 2012, the Leskovac Basic Court converted the prison sentence to house arrest without electronic monitoring. 14. On 29 November 2012 the Leskovac Basic Court amnestied the applicant at his request, finding that the conditions for a statutory amnesty were applicable (see paragraph 22 below). 15. In a subsequent constitutional appeal lodged on 25 May 2012 the applicant reiterated that he had been tried and punished twice for the same offence, in breach of Article 34 § 4 of the Constitution (see paragraph 13 below). 16. On 20 May 2013 the Constitutional Court, referring to the reasoning of the Niš Appeals Court as “fully acceptable from the constitutional point of view” (see paragraph 12 above), dismissed the applicant’s appeal as ill-founded. The decision of the Constitutional Court was served on the applicant’s representative on 29 May 2013. | 1 |
test | 001-158488 | ENG | UKR | COMMITTEE | 2,015 | CASE OF SHULGA v. UKRAINE | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Angelika Nußberger;Vincent A. De Gaetano | 4. The applicant was born in 1952 and lives in the village of Baybuzy, Cherkassy region, Ukraine. 5. On 26 September 2003 at around 8 p.m. the applicant’s wife, while riding a bicycle, was hit by a car and died on the spot. 6. On the same day police examined the accident spot in the presence of two witnesses, V. and M. (both inhabitants of Baybuzy who arrived at the spot after the accident) and the accident sketch map was drawn. The driver of the car, P., was questioned. He testified that he had been temporarily blinded by the long-distance headlights of an approaching car. After that he saw a bicycle rider 7-8 meters in front of his car. He did not brake and his car hit the bicycle. Similar testimonies were given by the car passenger, S. The driver also underwent a test for the blood alcohol and drugs level. 7. On 27 September 2003 a forensic medical expert concluded that the applicant’s wife’s death had been caused by a basal skull fracture. 8. On 29 September 2003 criminal proceedings into the accident were instituted by the Cherkassy District Police Office (Черкаський районний відділ Управління Міністерства внутрішніх справ України в Черкаській області) for an alleged breach of traffic rules which caused a person’s death (Article 286 paragraph 2 of the Criminal Code). On the same day an investigation officer requested the head of the Cherkassy District Police Office to order a search for the accident witnesses, if any. 9. On the next day the applicant was recognised as a victim in the above criminal proceedings. 10. On 7 October 2003 a police officer informed the head of the Cherkassy District Police Office that it was impossible to identify witnesses who could have seen the accident. 11. On 17 October 2003 a reconstruction of events was carried out and a decision to perform an auto-technical forensic examination was adopted. The expert was requested to determine interposition of the car and the bicycle at the moment of collision, whether the driver had had a technical possibility to avoid the collision and whether the driver and the bicycle rider had breached the traffic rules. 12. On 27 October 2003 the applicant lodged a civil claim within the criminal proceedings. 13. On 18 November 2003 an expert concluded that the applicant’s wife had breached the traffic rules when riding a bicycle since there had been no lights and light reflectors on the bicycle and that the car driver had had no technical possibility of avoiding the accident. 14. On 26 November 2003 the proceedings were terminated for absence of evidence of a crime. 15. On 6 February 2004 the Cherkassy District Prosecutor’s Office (прокуратура Черкаського району Черкаської області) quashed this decision and remitted the case for additional investigation. A prosecutor instructed the head of the police investigation department in charge of the investigation to perform numerous additional investigation actions. It was noted, inter alia, that the questioning of P. and S. had been superficial, a number of details had not been clarified, the witnesses of the accident had not been properly sought, and the reconstruction of events had been conducted improperly. There were significant corrections on the accident sketch map and there was contradictory evidence in the case-file materials. It was also noted that “the expert conclusion was based actually on the testimonies of P. and S.” Consequently, another auto-technical forensic examination should be performed and an expert should be provided with objectively received data. It was also noted that an investigation officer should verify the facts and circumstances indicated by the applicant in his complaints. 16. By a letter of 22 March 2004 the Cherkassy District Prosecutor’s Office informed the applicant, in reply to his complaint to the General Prosecutor’s Office, that the investigation had been indeed protracted and there were disciplinary proceedings against two investigation police officers pending. The district prosecutor ordered to accelerate the proceedings. 17. In June 2004 P. and S. were again questioned and in July 2004 several other witnesses were questioned (M., V. and the persons who stopped at the spot after the accident). On 29 September 2004 the reconstruction of events was conducted. It was established that after passing an on-coming car the bicycle had become visible to the car driver and at that moment the distance to the bicycle had been 20 metres. 18. On 5 May 2005 a decision was taken to conduct an auto-technical forensic examination. The expert was requested to give an opinion, inter alia, on how the driver should have acted in the circumstances and whether he had had a possibility of avoiding the collision. On 19 July 2005 the expert concluded that P. had had no technical possibility of avoiding the collision. It was not safe to overtake the bicycle rider “since the collision had happened when P. had been passing an on-coming car”. An expert indicated that, according to the circumstances of the accident described by an investigation officer, there had been no breach of the traffic rules by the car driver which could have provoked the accident. The expert also separately noted that the reconstruction of events of 29 September 2004 had been performed with a breach of procedure. 19. On 1 November 2005 the proceedings were terminated for the absence of evidence of a crime. 20. By letter of 3 November 2005 the Cherkassy Regional Department of the Ministry of Internal Affairs of Ukraine (Управління Міністерства внутрішніх справ України в Черкаській області) informed the applicant, inter alia, that the investigation officer, K., in charge of the case, had been disciplinarily sanctioned for protracting the proceedings. 21. On 23 November 2005 the decision of 1 November 2005 was quashed by the Cherkassy District Prosecutor’s Office and the case was remitted for additional investigation. It was noted that more witnesses should be questioned, a police officer should be questioned about the corrections on the accident sketch map, a reconstruction of events should be conducted, if necessary, but with the assistance of a traffic specialist. 22. On 26 December 2005 the proceedings were stayed since “it was impossible to establish the guilt of the person who caused the collision with the applicant’s wife”. By letter of 7 March 2007 the Cherkassy Regional Prosecutor’s Office informed the applicant, however, that a forensic automobile technical examination was pending in his case. 23. In August 2008 the case was transferred to another investigation officer. On 9 August 2008 a decision similar to the one of 26 December 2005 was adopted. 24. On 24 June 2009 the decision of 9 August 2008 was quashed by the Cherkassy District Prosecutor’s Office. It was noted, inter alia, that a number of witnesses had to be questioned, a reconstruction of events should be conducted and the police officers should be questioned about corrections on the accident sketch map. 25. On the next day, however, an investigation officer of the Cherkassy Regional Police Department again terminated the proceedings for the absence of evidence of a crime. 26. On 15 June 2011 this decision was quashed by the Cherkassy District Prosecutor’s Office and the case was remitted for additional investigation. It was noted that the instructions of the prosecutor’s office issued on 23 November 2005 and 24 June 2009 had to be complied with. 27. On 8 August 2011 an auto-technical forensic examination was ordered. 28. On 25 June 2012 an expert concluded that it was impossible to answer the questions about a possibility for P. of having avoided a collision and whether P. had breached the traffic rules that had resulted in a traffic accident. The expert noted that the reconstruction of events of 29 September 2004 had been conducted with a breach of procedure therefore the obtained data could not be used for an expert conclusion. The expert, however, noted that the applicant’s wife had breached the traffic rules since there had been no lights on her bicycle and that had caused the collision. 29. On 29 June 2012 an investigation officer, referring to the above expert conclusion, terminated the proceedings in the case. 30. On 10 August and 22 September 2004 the applicant brought two claims for damages against P. On 14 September and 28 October 2004 the Cherkassy District Court dismissed the applicant’s claims for procedural shortcomings. The applicant neither appealed against these decisions nor submitted new claims in compliance with procedural requirements. 31. On 26 March 2006 the applicant took part in the local elections as a candidate for the position of the head of the village territorial community and came second with three votes less. On 3 April 2006 the Cherkasskyy District Court invalidated the results of the elections. On 6 April 2006 the Cherkassy Regional Court of Appeal quashed the decision of 3 April 2006 and rejected the applicant’s complaint that some of the voters had been prevented from voting. On 25 May 2006 the Higher Administrative Court of Ukraine rejected the applicant’s request for leave to appeal in cassation as the decision of 6 April 2006 was not subject to appeal. | 1 |
test | 001-145226 | ENG | CZE | CHAMBER | 2,014 | CASE OF R & L, S.R.O. AND OTHERS v. THE CZECH REPUBLIC | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Karel Jungwiert;Mark Villiger | 6. The first applicant is a limited liability company with its registered seat in Brno. It owns a five-storey tenement house in Brno, which it bought in 1994 for 1,450,000 Czech korunas (CZK 52,920 euros (EUR)). There is a shop on the ground floor and one flat on each remaining floor. In three of these four flats the rent was regulated. The rent in those three flats was CZK 2,037 (EUR 74), CZK 2,007 (EUR 73) and CZK 1,392 (EUR 50.80) respectively per month. The monthly rent for the fourth flat was fixed at CZK 5,200 (EUR 190). 7. On 10 February 2004 the first applicant sued the State for damages in the amount of CZK 229,563 (EUR 8,378) corresponding to the difference between the regulated rent and the usual rent in the given area as estimated by the first applicant for the period between February 2002 and end of January 2004. 8. On 22 December 2004 the Prague 1 District Court (obvodní soud) dismissed the first applicant’s action. It held that it was not possible to award damages under the State Liability Act since failure to enact deregulating legislation could not be qualified as an “incorrect official procedure” within the meaning of the Act. Moreover, the adoption by the Ministry of Finance of decrees nos. 01/2002 and 06/2002 could not be qualified as an incorrect official procedure either. 9. On 28 February 2006 the Prague Municipal Court (městský soud) dismissed an appeal by the first applicant. It held that the impossibility of reaching an agreement on deregulating legislation in Parliament could not be qualified as an “incorrect official procedure” within the meaning of the State Liability Act. The court added that in respect of the period from February 2002 to 20 March 2003 rents had been regulated by Government Decree no. 567/2002. Although that decree had subsequently been repealed by the Constitutional Court, the latter’s judgments were not of retroactive effect and thus previous contractual relationships remained unchanged. Accordingly, there was no legal basis for compensation for that period. 10. On 24 October 2007 the Supreme Court (Nejvyšší soud) dismissed an appeal on points of law lodged by the first applicant. It found that the legislative procedure in Parliament could not be described as an “administrative procedure” under the State Liability Act and that it was impossible to engage liability on the part of the State for the result of voting in Parliament. 11. On 27 November 2008 the Constitutional Court (Ústavní soud) dismissed a constitutional appeal lodged by the first applicant as manifestly ill-founded, holding that actions for damages against the State had a subsidiary character and that the applicant company should have started by bringing an action for rent increase. 12. The applicant owns a tenement house in Prague consisting of eleven flats and three non-residential premises. The application concerns seven of these flats for which the applicant collected regulated rent in the total amount of CZK 398,196 (EUR 14,533) for the period between 1 January 2002 and 31 December 2004 while the usual rent in the given locality would have amounted to CZK 1,757,160 (EUR 64,130) according to an expert report commissioned by the applicant. The applicant and his sister acquired the house under the restitution law in 1992. The applicant’s sister later transferred her share to the applicant. 13. On 4 January 2005 the applicant sued the State for damages in the amount of CZK 1,358,964 (EUR 49,597) corresponding to the difference between the regulated rent and the usual rent in the given locality for the period between 1 January 2002 and 31 December 2004. 14. On 12 October 2005 the Prague 1 District Court dismissed the applicant’s action. It held that it was not possible to qualify the failure by Parliament to enact deregulating legislation as an “incorrect official procedure”. While the previous regulations had been repealed by the Constitutional Court, this did not produce a retroactive effect and thus no damages could be awarded for the period of time during which they were in force. The applicant should have brought an action against the tenant requesting the court to determine the amount of rent according to the local and material conditions (nahrazení projevu vůle nájemců k určení výše nájemného, které by odpovídalo všem místním i věcným podmínkám). 15. On 2 February 2006 the Prague Municipal Court dismissed an appeal by the applicant. It held that the impossibility of reaching an agreement on deregulating legislation in Parliament could not be qualified as an “incorrect official procedure” within the meaning of the State Liability Act. As regards the period until 20 March 2003, the court added that rents had been regulated by Government Decree no. 567/2002. Although it had subsequently been repealed by the Constitutional Court, the latter’s judgments did not have retroactive effect and thus the previous contractual relationships remained unchanged. Accordingly, there was no legal basis for compensation for that period. 16. On 28 February 2008 the Supreme Court declared inadmissible an appeal on points of law lodged by the applicant. 17. On 30 October 2008 the Constitutional Court dismissed the applicant’s constitutional appeal as manifestly ill-founded, holding that actions for damages against the State had a subsidiary character and that the applicant should have started by bringing an action for rent increase. 18. The applicant owns a tenement house in Brno consisting of seven flats and two non-residential premises. She became the sole owner of the house on 11 July 2004 as a result of restitution (in March 1992), gifts (in October 1994), inheritance (in September 1997) and purchases from five other family members (July 2004). She collected regulated rent for three of those flats in the total amount of CZK 251,484 (EUR 9,178) for the period between 1 July 2002 and 31 August 2005 while the usual rent in the given locality would have amounted to CZK 1,158,059 (EUR 42,265) according to an expert report commissioned by the applicant. The applicant occupied one flat and let two flats to her son and daughter. 19. On 14 October 2005 the applicant sued the State for damages in the amount of CZK 906,575 (EUR 33,087) corresponding to the difference between the regulated rent and the usual rent in the given locality for the period between 1 July 2002 and 31 August 2005. On 19 January 2006 she withdrew her claim in respect of an amount of CZK 166,077 (EUR 6,061). 20. On 9 May 2006 the Prague 1 District Court dismissed the applicant’s action. It held that it was not possible to qualify the failure by Parliament to enact deregulating legislation as an “incorrect official procedure”. The applicant should have brought an action against the tenant requesting the court to determine the amount of rent according to the local and material conditions. 21. On 24 January 2007 the Prague Municipal Court upheld that decision. In respect of the period up to 20 March 2003, it held that rents had been regulated by several regulations. Although these had subsequently been repealed by the Constitutional Court, its judgments were not of retroactive effect and thus the previous contractual relationships remained unchanged. As a result, no compensation could be awarded for that period. As regards the subsequent period, the court held that the impossibility of reaching an agreement on deregulating legislation by Parliament could not be qualified as an “incorrect official procedure” within the meaning of the State Liability Act. State responsibility could however flow from general liability under civil law. Yet, it would be very difficult to establish a causal link between the damage and an unconstitutional failure on the part of the State to enact deregulating legislation. Referring to the Constitutional Court’s judgments nos. Pl. ÚS 20/05 and I. ÚS 489/05 (see paragraphs 105 and 118 of Annex II), the court held that as of 2 June 2006 at the latest the applicant could have brought an action pro futuro. As regards the period between 20 March 2003 and 2 June 2006 the Municipal Court stated that the applicant should have brought an action against the tenants for forfeiture of the proceeds of unjust enrichment. Given that the litigation stemmed from an unlawful situation which was to a substantial extent caused by the State’s inactivity, and the persisting evolution of the case-law, which had not yet been settled, the applicant was exempted from payment of the costs of the proceedings incurred by the State both for the first-instance and the appellate proceedings. 22. On 26 March 2008 the Supreme Court declared inadmissible the applicant’s appeal on points of law. It found that the legislative procedure in Parliament could not be described as an “administrative procedure” within the meaning of the State Liability Act and that it was impossible to engage liability on the part of the State for the result of voting in Parliament. 23. On 21 April 2008 the applicant lodged a constitutional appeal. She explained, inter alia, that an action against the State was the only avenue she could use. It was not possible to bring an action against the tenants. First of all, the lower courts had been dismissing such actions between 1 July 2002 and 31 August 2005, which was the period to which her claim related. Moreover, that judicial practice corresponded to the established case-law of the Supreme Court (see paragraph 167 of Annex II) and the result of any action against the tenant was thus fully foreseeable. Further, the possibility of bringing an action for rent increase had been created by the Constitutional Court only in its landmark judgment no. Pl. ÚS 20/05 of 2 June 2006. In any event, contrary to the opinion of the Municipal Court, it was not possible to use that avenue in the applicant’s case. Referring to the Constitutional Court’s judgment no. I. ÚS 489/05 (see paragraph 118 of Annex II), the applicant argued that her only option was to bring actions against the tenant pro futuro whereas her action concerned the past. 24. On 18 December 2008 the Constitutional Court dismissed a constitutional appeal by the applicant as manifestly ill-founded, holding that actions for damages against the State had a subsidiary character, and the applicant should have started by bringing an action for rent increase. 25. On 15 May 2003 the applicant bought a tenement house in Domašov nad Bystřicí at public auction. The rent was regulated in nine out of the twelve flats. The rent in one of the flats was set at CZK 1,081 (EUR 39) per month. The non-regulated rent for a smaller flat was CZK 2,000 (EUR 73). Had there been no rent regulation, then rent in a flat affected by the control would be CZK 2,541 (EUR 93) a month (calculation based by compering yield per sq. m. of regulated and non-regulated flat). 26. On 26 April 2006 the Olomouc District Court (okresní soud) ordered the tenant of that flat to vacate it. On 30 August 2006 the applicant filed a request for enforcement of that decision. 27. On 9 October 2007 he lodged an action for payment of CZK 14,650 (EUR 530) corresponding to the outstanding rent for the period between 1 July 2006 and 30 April 2007. On 14 December 2007 the District Court dismissed that action on the ground that the tenant had actually vacated the flat on 30 June 2006. 28. In 2008 the applicant lodged an action for payment of CZK 14,514 (EUR 530) for the period between 1 February and 31 July 2006 corresponding to the difference between the regulated rent and the rent that he considered usual in the given locality. 29. On 28 April 2008 the District Court dismissed the applicant’s claim. It referred to the case-law of the Constitutional Court and the Supreme Court and held that rent could be increased only pro futuro. Moreover, the applicant’s action could not be granted on the basis of forfeiture of the proceeds of unjust enrichment either because the parties had concluded a valid tenancy agreement. 30. On 4 December 2008 the Ostrava Regional Court (krajský soud) upheld the District Court’s analysis and dismissed an appeal by the applicant. 31. On 21 May 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant, holding that landlords were not entitled to claim retroactively from tenants the difference between the regulated rent and the usual rent in the given locality. It noted that previous opinions to the effect that it was possible to lodge retroactive claims against tenants had been overruled by its Opinion no. 27/09 of 28 April 2009. 32. The applicant owns numerous other tenement houses where the rent was regulated. He introduced separate domestic proceedings regarding those houses and ultimately lodged eleven other applications (nos. 25463/05, 32090/06, 36658/09, 36687/09, 38720/09, 39868/09, 43750/09, 46064/09, 53957/09, 3968/10, 8463/10) before the Court where he complains of the rent regulation scheme in the Czech Republic. 33. The applicants own a tenement house in Prague consisting of six flats, one of which was rented under the rent-control scheme. The rent was set at CZK 2,396 (EUR 87) per month. The applicants bought the house in May 2001 for CZK 4,000,000 (EUR 145,985). 34. On 17 July 2003 the applicants informed the tenants of an increase in rent that would newly be CZK 9,000 (EUR 328) monthly, which the tenants refused to pay. On 22 September 2003 they sent a letter of reminder to the tenants, who, on 5 October 2003, again refused to pay the increased rent. 35. On an unspecified date the applicants brought the case before the Prague 8 District Office, which was empowered to determine the level of the rent according to the rent agreement (dohoda o užívání bytu). On an unspecified date the District Office had declined jurisdiction and informed the applicants that they should bring an action before the courts. The final reminder before the court action was sent to the tenants by the applicants on 19 June 2005. 36. On 30 June 2005 the applicants thus lodged an action for payment of the increase in rent for the period from July 2003 to December 2004 amounting to CZK 118,874 (EUR 4,338). 37. On 22 February 2006 the Prague 8 District Court dismissed their action. 38. On 25 October 2006 the Prague Municipal Court upheld the first-instance judgment. Referring to the case-law of the Constitutional Court, and especially its judgment no. I. ÚS 489/05 of 6 April 2006 (see paragraph 118 of Annex II), it held that rent could not be increased retroactively. 39. On 8 April 2009 the Supreme Court declared inadmissible an appeal on points of law lodged by the applicants. 40. On 16 July 2009 the Constitutional Court, referring to its Opinion no. 27/09 of 28 April 2009, dismissed a constitutional appeal lodged by the applicants, holding that a rent increase could be claimed only pro futuro from the date of lodging the action against the tenants. 41. On 2 January 2008 the applicants also lodged a claim for damages against the State under the State Liability Act for the period from July 2004 to December 2006. The proceedings are pending before the Prague 1 District Court. | 1 |
test | 001-159732 | ENG | CHE | CHAMBER | 2,015 | CASE OF G.S.B. v. SWITZERLAND | 3 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life) | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1960 and lives in Miami. 7. The facts of the case as submitted by the parties can be summarised as follows. 8. In 2008 the US tax authorities (the Internal Revenue Service [IRS] in Washington) discovered – primarily from a complaint lodged by a former employee of the UBS SA bank in Geneva responsible for asset management for the bank’s private North American customers – that thousands of US taxpayers held UBS bank accounts which had not been declared to their national authorities or else held economic rights in respect of such accounts. Owing to the role which it had apparently played in that connection, the bank faced a risk of criminal prosecution. 9. On 18 February 2009 a deferred prosecution agreement (DPA) was concluded between UBS SA and the US Department of Justice (DOJ). In this document the bank acknowledged that it had, in particular, allowed US taxpayers to use off-shore accounts to conceal their assets and income from the US tax authorities and had met with and provided on-the-spot advice, in the United States, to customers who had not declared their accounts to the IRS. It was agreed that proceedings could be dropped in return for a settlement amount of 780 million US dollars (USD). 10. On 19 February 2009 the IRS brought a civil action (a so-called “John Doe summons” [JDS]) requesting a formal order to UBS SA to reveal the identities of its 52,000 American customers and to communicate data on their bank accounts. 11. Switzerland was concerned that the dispute between the US authorities and UBS SA might give rise to a conflict between Swiss and US law should the IRS obtain that information, and the civil proceedings were therefore suspended pending extra-judicial reconciliation. 12. On 19 August 2009, with a view to identifying the taxpayers in question, the Federal Council (Government) of the Swiss Confederation and the United States of America (“the United States”) concluded an “Agreement concerning the request by the Internal Revenue Service of the United States relating to the Swiss company UBS SA” (“Agreement 09”) ... Under the first Article of Agreement 09 Switzerland undertook to deal with the US request for mutual assistance concerning UBS SA’s American customers in accordance with the criteria laid down in the Appendix to that Agreement and, moreover, in conformity with the Convention of 2 October 1996 between Switzerland and the United States on double taxation (CDI-US 96) ... Drawing on those criteria, the parties to Agreement 09 considered that the request for mutual assistance concerned “some 4,450 open or closed accounts”. Switzerland further undertook to set up a “special task force” enabling the Swiss Federal Tax Authority (AFC) to reach its final decisions in the framework of the mutual assistance request within a specific timescale. In return, the Agreement provided that the United States and UBS SA would submit to the US District Court for the Southern District of Florida a joint request for the discontinuance of the request for enforcement of the “John Doe Summons” (see Article 3 of Agreement 09) ... 13. On 31 August 2009 the IRS submitted a mutual assistance request to the AFC with a view to obtaining information on US taxpayers who, between 1 January 2001 and 31 December 2008, had had “authority to sign or other access rights to” bank accounts “held, supervised or maintained by a section of UBS SA or by one of its branches or subsidiaries in Switzerland”. 14. On 1 September 2009 the AFC ordered UBS SA to provide information for the purposes of the 15 June 1998 Order concerning the US-Swiss Convention of 2 October 1996 on double taxation (CDI-US 96) ... The AFC decided to instigate a mutual assistance procedure and requested that UBS SA provide, in particular, complete files on the customers mentioned in the Appendix to Agreement 09. 15. By judgment of 21 January 2010 (A-7789/2009) the Federal Administrative Court (TAF) accepted an appeal against a decision taken by the AFC which concerned, in the framework of the Appendix to Agreement 09, a challenge falling within the category defined in paragraph 2/A/b. In its reasoning, the TAF held that: – Agreement 09 was a mutual agreement which should remain within the framework set out by the convention on which it depended, CDI-US 96; – under the terms of the aforementioned convention, mutual assistance was granted in cases of tax fraud, but not in cases of tax evasion (that is to say the mere failure to declare a bank account to the tax authorities; regarding this distinction under Swiss tax law ...; – accordingly CDI-US 96 only facilitated exchange of information in cases of “fraud or a similar offence” for the purposes of Swiss law, that is to say tax swindle (tax evasion by dint of “creative accountancy”) or document forgery; – having regard to the obligations which it imposed on Switzerland, that agreement should have taken the form of an international treaty ratified by the Swiss Federal Parliament and been put to an “optional referendum”; – accordingly, the form of a mere friendly agreement concluded by the Federal Council on its own had been insufficient. Consequently, the Federal Administrative Court voided the decisions given by the AFC on the basis of Agreement 09. 16. The entry into force of that TAF judgment of 21 January 2010 called into question the application of Agreement 09. Indeed, out of the approximately 4,450 individual cases covered by that agreement some 4,200 concerned situations of long-term tax evasion of enormous proportions. The Swiss Government considered that an inability to provide mutual aid in such cases could create major difficulties for Switzerland in its bilateral relations with the United States. The Federal Council deemed likely that the United States would impose compensatory measures, and that the minimum they could expect was that the US would reactivate the enforcement procedure in respect of the UBS customers through mutual assistance channels. The Federal Council were concerned that an American court might then order UBS SA to provide the IRS with the data in question and force the judgment through by dint of extremely high coercive fines. On 31 March 2010, in order to prevent such a development, after fresh negotiations with the United States, the Federal Council concluded a “Protocol amending the Agreement between Switzerland and the United States concerning the IRS’s request for information on the Swiss company UBS SA, signed in Washington on 19 August 2009”, referred to as “Protocol 10”. The provisions of that protocol were incorporated into Agreement 09. They became provisionally applicable on the date of its signature by the parties. 17. By Federal Decree of 17 June 2010 “approving the Agreement between Switzerland and the United States concerning the request for information regarding UBS SA, as well as the Protocol amending that Agreement”, the Federal Assembly (the Swiss Parliament) approved Agreement 09 and Protocol 10, and gave the Federal Council leave to ratify them. The consolidated version of Agreement 09 as amended under Protocol 10 is sometimes referred to as “Convention 10” ... The aforementioned Federal Decree stated that the optional referendum mentioned in Article 141 of the Federal Constitution in respect of certain international treaties concluded by Switzerland ... was not available in the present case. 18. On 15 July 2010 the Federal Administrative Court delivered judgment in a pilot case (A-4013/2010) concerning the validity of Convention 10. In that judgment the TAF ruled that: – Convention 10 was fully binding on it within the meaning of Article 190 of the Constitution ...; – there was no substantive hierarchy in international law (apart from the pre-eminence of jus cogens); accordingly, Convention 10 held the same status as CDI-US 96; – as CDI-US 96, like the Convention (for the Protection of Human Rights and Fundamental Freedoms) and the International Covenant on Civils and Political Rights (“UN Covenant II”), had been adopted prior to Convention 10, its provisions were only applicable insofar as they were compatible with the rules of the latter 96, because Convention 10 took precedence by virtue of its posteriority. 19. UBS SA transmitted the applicant’s file to the AFC on 19 January 2010. In its final decision of 7 June 2010, the AFC ruled that all the conditions had been met for granting mutual assistance to the IRS and ordering the communication to it of the documents published by UBS SA. 20. On 7 July 2010 the applicant appealed to the Federal Administrative Court against that decision. By judgment of 21 September 2010, without assessing the actual lawfulness of the decision of 7 June 2010, the court set it aside, noting that the applicant’s right to a hearing had been flouted. Consequently, it referred the case back to the AFC, inviting it to allow the applicant to submit his observations and to give a fresh decision on affording the US authorities mutual assistance in his case. 21. By letter of 28 September 2010 the AFC notified a deadline of 29 October 2010 for the applicant to forward any observations before the issuing of a fresh decision. On 13 October 2010 the applicant submitted a statement of his position on the matter. In its final decision of 4 November 2010 the AFC once again held that all the requisite conditions were fulfilled for granting the IRS mutual assistance and ordering UBS SA to communicate the requested documents to the US authorities. 22. On 8 December 2010 the applicant appealed to the Federal Administrative Court against the decision of 4 November 2010. He complained, in substance, of a lack of any legal basis for the decisions of 1 September 2009 and 4 November 2010, as well as of the violation of the Convention and other international treaties, owing, in particular, to noncompliance with the prohibition of the retroactivity of laws and non-respect for his right to respect for his private life, the presumption of innocence, the principle of equality and non-discrimination, and his right to remain silent. 23. Determining as the final domestic instance, the Federal Administrative Court delivered judgment on 2 March 2011. It first of all held, in substance, that Convention 10 was binding on the Swiss authorities, considering that they did not have to verify its conformity with Federal law and previous conventions. Secondly, with reference to the pilot case A-4013/2010 of 15 July 2010 (see paragraph 18 above), the Federal Administrative Court set out the following reasoning: “3.2. The AFC’s decision of 1 September 2009 concerning UBS SA does not relate to the grant of mutual assistance. It is merely a decision whereby the lower-level authority requested information from UBS SA for the purposes of Article 20c (3) of CDI-US 96. Therefore, it may be accepted that Agreement 09, in relation with the aforementioned provision, constituted a sufficient legal basis for the AFC to take a decision against UBS SA, requiring, in particular, the handover of the complete files of customers covered by the Appendix to Agreement 09. That being the case, the appellant’s complaint is ill-founded. 4.1.1. In the pilot case A-4013/2010 of 15 July 2010 this court found that Convention 10 was binding on the Swiss authorities. No derogation to it was possible under domestic law or in the authorities’ domestic practice. It was stated that Article 190 [of the Constitution] required the authorities to apply international law, which includes Convention 10, and that – in any event – the conformity of international law with the Federal Constitution and Federal legislation could not be assessed where the international law in question was more recent. The Federal Administrative Court thus accepted that Convention 10 should be applied, even if it was contrary to the Federal Constitution or Federal legislation (see Federal Administrative Court judgment A4013/2010 of 15 July 2010, point 3 and the references therein; see also Federal Administrative Court judgments A-7014/2010 of 3 February 2011, point 4.1.1 and the references therein, A-4835/2010 of 11 January 2011, point 5.1.1, and A6053/2010 of 10 January 2011, point 2.1). 4.1.2 With particular regard to the relationship between the different conventions (Convention 10, CDI-US 96 [in particular Article 26 thereof], the ECHR [in particular Article 8 thereof] and UN Covenant II [in particular Article 17 thereof]), the court pointed out that that relationship was established pursuant solely to the rules set out in Article 30 of the Vienna Convention on the Law of Treaties of 23 May 1969 (VCLT) and that there was no substantive hierarchy in international law (apart from the pre-eminence of jus cogens). This court therefore considered that the rules of Convention 10 took precedence over the other provisions of international law, including Article 8 ECHR and Article 17 UN Covenant II, as the latter two provisions did not comprise jus cogens. It did, however, find that even if Article 8 (1) ECHR were applicable, the conditions set out in Article 8 (2) ECHR, which permits restrictions on the right to respect for private and family life, were fulfilled. Convention 10 was indeed a sufficient legal basis under the case-law of the European Court of Human Rights. Furthermore, Switzerland’s major interests and the interest of being able to honour the country’s international commitments took precedence over the individual interests of the persons concerned by the mutual assistance agreement to keep their pecuniary situation secret ... 4.1.3 This court also stated, in judgment A-4013/2010 cited above, that Article 7 (1) ECHR (no punishment without law) was not relevant to mutual assistance procedures. That provision was, exceptionally, applicable in the framework of Swiss mutual assistance procedure if the person concerned by the assistance was threatened, in the requesting State, with proceedings in breach of Article 7 ECHR ... That was not the situation in the present case ... 4.1.5 This court has also held that the parties to an international agreement are free to provide expressly or implicitly for the retroactive application of such agreement ... Moreover, procedural rules could be applied retroactively to previous events, because the prohibition of non-retroactivity only applied to substantive criminal law, not to procedural law, which included provisions on mutual assistance ... Furthermore, the parties to Convention 10 had wished to characterise differently the facts which had occurred prior to the signature of Agreement 09, which was commonly referred to as ‘retroactive effect’. That wish to apply Agreement 09 – which had become Convention 10 – with retroactive effect transpired clearly from the criteria for granting mutual assistance as set out in the Appendix to Convention 10. Even though the parties had specified, in Article 8 of Convention 10, that that instrument would come into force on the date of its signature, they had wished that retroactive effect to prevail ... 4.1.7. In the present case it should be noted, in the light of the aforementioned judgments, that the following objections as to the validity and applicability of Convention 10 can be discarded without further ado: incompatibility with the ECHR and other international treaties, violation of the principle of the prohibition of the retroactivity of laws (see Article 7 ECHR and Article 15 UN Covenant II), and violation of the right to respect for private life (see Article 8 ECHR). Furthermore, contrary to the appellant’s opinion, Convention 10 is in fact a sufficient legal basis for granting mutual assistance, notwithstanding the failure to put it to a referendum (which is optional). Finally, even though Switzerland was unable – in this specific case – to obtain the same information under its own legislation, it is still bound by its international commitments and must grant mutual assistance where the requisite conditions have been met. 4.2. The appellant further submitted that Convention 10 breached the principles of equality and non-discrimination by solely penalising one specific category of persons, that is to say UBS SA customers. He claimed that Convention 10 only applied to UBS SA customers and not to those of other banks. The appellant relied on Article 8 of the Constitution, Article 14 ECHR, Article 2 paragraph 2 of the International Covenant of 16 December 1966 on Economic, Social and Cultural Rights (UN Covenant I; RS 0.103.1) and Article 2 paragraphs 1 and 26 of UN Covenant II. As stated above, this court cannot verify the conformity of Convention 10 with the Federal Constitution and Federal legislation. That legislation, moreover, overrides any previous international agreements to the contrary (see point 4.1.2 above). Therefore, Convention 10 must be applied even if it establishes different legal regulations for UBS SA customers as compared with the customers of other banks (see Federal Administrative Court judgment A-7156/2010 of 17 January 2011, paragraph 5.2.1). ...” 24. On those grounds, the Federal Administrative Court dismissed the applicant’s appeal. 25. On 24 March 2011 the applicant lodged a public-law appeal with the Federal Court, submitting that the considerations set out in the judgment challenged solely concerned mutual assistance in criminal matters and were not relevant to administrative mutual assistance. By judgment of 11 April 2011 that court declared the appeal inadmissible, mainly with reference to a judgment of 20 December 2010 (ATF 137 II 128), which had found that appeals against AFC decisions given pursuant to the Convention on Double Taxation and subsequent agreements concluded with the United States fell within the scope of administrative mutual assistance. 26. On 14 December 2012 the banking data concerning the applicant were transmitted to the US tax authorities. 27. By letter of 14 June 2013, the Court invited the applicant to inform it of the subsequent developments in the case, and, in particular, to give a brief summary of any consequences or any criminal penalties imposed personally and effectively on him in the United States following the disclosure of his banking data as ordered by the Swiss Federal Tax Authority (AFC). 28. By letter of 7 August 2013 the applicant stated that he was not currently in a position to respond to the Court’s request. By letter of 30 June 2014 the applicant pointed out that the US authorities were still conducting their tax inspection and that he had not yet been charged with any criminal offence. ... | 0 |
test | 001-153053 | ENG | NLD | ADMISSIBILITY | 2,015 | NDABARISHYE RUGIRA v. THE NETHERLANDS | 4 | Inadmissible | Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Justin Ndabarishye Rugira, stated that he is a national of the Democratic Republic of Congo (DRC) and that he was born on 12 October 1993 in the DRC. At the time of the introduction of the application, he was staying in Rotterdam. He was represented before the Court by Mr W.H.M. Ummels, a lawyer practising in Rotterdam. 2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 19 June 2012, the applicant applied for asylum in the Netherlands, submitting that he was a member of the Banyamulenge (Tutsi) community and that he hailed from South-Kivu in the eastern part of the DRC where he had had problems with the DRC governmental armed forces. He further stated that he had travelled by car form the DRC to Burundi on 26 May 2012, from where he had travelled by air, with a stopover at an unknown airport, to the Netherlands where he had arrived on 27 May 2012 at Schiphol airport. He had never applied for or held a travel document or visa. The person who had accompanied him on his journey had shown documents on the applicant’s behalf at control points. The only identity document he submitted was a DRC voter’s pass issued on 6 April 2011 by the Lulenge electoral commission. The applicant stated that he had never held any other identity documents. 5. On 27 June 2012 the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; “the Minister”) rejected the applicant’s asylum request. The Minister considered that the applicant’s failure to substantiate in a sufficient manner his stated identity, nationality and travel itinerary as well as his failure to give a detailed, coherent and verifiable account of his journey to the Netherlands detracted from the credibility of his asylum account which, furthermore, lacked positive persuasiveness. Referring to the official report (ambtsbericht) on the DRC, drawn up by the Netherlands Minister of Foreign Affairs in June 2012, the Minister further found that the overall situation in the DRC was not such as to warrant accepting the applicant’s asylum request. 6. On 20 July 2012, the Regional Court (rechtbank) of The Hague sitting in Zwolle dismissed the applicant’s appeal. It considered that, although the situation in South-Kivu fell within the scope of Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”), a safe relocation alternative existed in Kinshasa. Although possible, the applicant did not file a further appeal with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). 7. On 9 August 2012 the applicant lodged a fresh asylum request, which was rejected by the Minister on 7 September 2012. Referring to the Netherlands official report on the DRC of June 2012, the Minister held that the articles and reports relied on by the applicant did not lead to a different conclusion as to the lack of credibility of his asylum account and the possibility for him to settle elsewhere in the DRC. 8. On 10 January 2013, the Regional Court of The Hague sitting in Middelburg dismissed the applicant’s appeal. It held that, although the overall situation in the DRC had worsened since the decision of 27 June 2012 on the applicant’s first asylum request, it could not be said that there was systematic discrimination of Banyamulenge in the DRC and the applicant still had an alternative relocation possibility outside the Kivu area. The applicant filed a further appeal against this decision as well as an accompanying request for a provisional measure, namely a stay of removal pending the proceedings on this further appeal. 9. On 22 January 2013, according to the applicant on the basis of the DRC voter’s pass submitted by him in support of his asylum request, the DRC mission in Belgium provided the Netherlands authorities with an “attestation tenant lieu de passeport” for the purposes of the applicant’s removal to the DRC. This document was valid from 22 January 2013 to 21 January 2014. On an unspecified date, the applicant was informed that his removal to Kinshasa (DRC) had been scheduled for 14 February 2013. 10. On 8 February 2013, the President of the Administrative Jurisdiction Division granted the applicant’s request for a provisional measure. Consequently, the applicant’s scheduled removal was cancelled. 11. On 28 February 2013 the Administrative Jurisdiction Division rejected the applicant’s further appeal on summary reasoning. It found that the further appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling. 12. On 15 March 2013 the applicant requested the Court to indicate to the Government, by way of an interim measure pursuant to Rule 39 of the Rules of Court, that he should not be removed to Kinshasa (DRC). 13. On 11 April 2013 the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to the DRC for the duration of the proceedings before the Court. The President further decided to bring the application to the notice of the respondent Government in accordance with Rule 54 § 2 (b) of the Court’s Rules of Procedure and to submit written observations on the admissibility and merits. 14. On 23 May 2013, the respondent Government informed the Court that, according to information received from the Belgian authorities, the applicant had entered the Schengen area in 2012, using a tourist visa issued by the Belgian authorities and a Rwandan passport. Pending verification of this new information, the Government sought an extension of the time-limit fixed for submission of their written observations. This request was granted by the President. 15. On 17 July 2013, the respondent Government informed the Court that, given the doubts that had arisen as regard the applicant’s origins, a language analysis would be carried out. 16. On 15 August 2013, a report was drawn up on the language analysis test carried out by the Office for Country Information and Language Analysis (Bureau Land en Taal), a specialised unit of the Netherlands Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; “IND”) of the Ministry for Security and Justice (Ministerie van Veiligheid en Justitie). The conclusion of this language analysis was that the applicant was unequivocally identified as not originating from the DRC (“eenduidig niet herleidbaar to DR Congo”) but it was considered likely that he originated from the linguistic community in Rwanda (“waarschijnlijk herleidbaar tot de spraakgemeenschap binnen Rwanda”). 17. According to a report issued by the Documents Bureau (Bureau Documenten) of the Immigration and Naturalisation Service on 4 September 2013, the DRC voter’s pass submitted by the applicant to the Netherlands authorities had possibly not been drawn up and issued by a competent authority (mogelijk niet bevoegd opgemaakt en afgegeven) but the document itself was “with virtual certainty” (met aan zekerheid grenzende waarschijnlijkheid) authentic. 18. On 1 November 2013, the respondent Government submitted their observations to which the applicant replied on 29 January 2014. 19. On 18 February 2014, the respondent Government submitted a print-out of a website-page of the Belgian Federal Foreign Affairs Service (Federale Overheidsdienst Buitenlandse Zaken) containing the details – including a digital passport photograph and particulars of the petitioner – of an accepted application for a tourist visa filed with the Belgian authorities on 17 April 2012 by Mr Justin Ndabarishye, a Rwandan national born in the DRC on 12 October 1990. The respondent Government also submitted a copy of the applicant’s asylum application filed in the Netherlands, including a passport photograph of the applicant taken in that context. 20. The applicant’s response to these materials was submitted on 28 March 2014. 21. The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012). 22. At the material time, the respondent Government’s policy on asylum-seekers from particular countries was devised by the Minister for Immigration, Integration and Asylum Policy and his successor, the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie), on the basis of official country assessment reports published by the Minister of Foreign Affairs on the countries of origin of asylum-seekers. 23. On 10 July 2013, the Deputy Minister for Security and Justice adopted a moratorium on decisions on asylum applications and expulsions (besluit- en vertrekmoratorium) for asylum-seekers of Tutsi origin hailing from the east of the DRC, including the provinces North-Kivu and South-Kivu. 24. The moratorium was lifted by the Deputy Minister on 3 February 2014. This policy decision, as published in the Official Gazette (Staatscourant) of 12 February 2014 (no. 4196), was based on the contents of an official country assessment report on the DRC released by the Minister of Foreign Affairs on 27 November 2013. It was found in this report that there was no systemic, structural and organised discrimination of Tutsis in the DRC, that there was no structural violence in the DRC against the Tutsi population or other Congolese with a Tutsi background and that Tutsi groups could obtain protection from the DRC authorities. Although the general situation in the provinces of North-Kivu, South-Kivu, Haut-Uele and Bas-Uele in the eastern part of the DRC continued to be considered as falling within the scope of Article 15(c) of the Qualification Directive, an internal protection alternative was found to be available in other parts of the DRC, including Kinshasa, for asylum-seekers hailing from those provinces who did not qualify for refugee status within the meaning of the 1951 Geneva Convention relating to the Status of Refugees. | 0 |
test | 001-170362 | ENG | UKR | CHAMBER | 2,017 | CASE OF KULYKOV AND OTHERS v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev | 5. The applicants were domestic court judges. Proceedings were brought against them, resulting in their dismissal from the post of judge. The facts giving rise to their dismissals were established by the High Council of Justice (Вища рада юстиції, hereinafter “the HCJ”). The HCJ’s decisions were submitted to Parliament or to the President of Ukraine (depending on which of those authorities had appointed the applicants to the post of judge) for the final decisions on their dismissals. 6. The applicants further unsuccessfully challenged their dismissals before the Higher Administrative Court (“the HAC”) or other courts. 7. On 4 February 2004 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had ignored the instructions given to him by the chairman and deputy chairman of his court. In addition, the applicant had unlawfully instituted criminal proceedings against the chairman of the court. The HCJ further noted that the applicant had disregarded the internal rules of the court, his professional competence had not improved and he had had communication difficulties with colleagues from the court. It rejected the applicant’s contentions that the dismissal proposal had not been based on the real facts and that the chairman of the court had been biased against him and had interfered with the applicant’s professional activity. The HCJ concluded that the applicant had not fairly and duly performed his duties and had to be dismissed. 8. On 22 May 2008 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 9. The applicant challenged the HCJ’s decision concerning his dismissal before the courts. 10. On 13 July 2007 the Shevchenkivskyy District Court of Kyiv rejected the applicant’s claim as unsubstantiated. 11. On 26 October 2010 the Kyiv Administrative Court of Appeal upheld the judgment. 12. On 2 November 2010 the applicant unsuccessfully applied to the court of appeal for a copy of the decision of 26 October 2010. 13. On 17 and 19 November 2010 the applicant lodged cassation appeals against that decision with the HAC. He was not informed about the outcome of the proceedings before the HAC. 14. On 22 April 2009 the applicant challenged the parliamentary resolution of 22 May 2008 before the Kyiv Administrative Court. 15. On 13 October 2009 the court suspended the proceedings pending the outcome of the proceedings concerning the lawfulness of the HCJ’s decision. 16. On 16 August 2012 the court decided to leave the applicant’s claim without consideration on the merits. 17. On 7 June 2010 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to the President of Ukraine to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant, acting as a first-instance judge, had disregarded the rules governing territorial jurisdiction in a case concerning a labour dispute in a State company. It further found that he had violated the rules governing the interim measures in that case. Substantial damage to the State had been caused as a result of the interim measure ordered. 18. On 6 July 2010 the President of Ukraine issued a decree dismissing the applicant from the post of judge on grounds of “breach of oath”. 19. The applicant instituted proceedings in the HAC challenging the HCJ’s decision and the Presidential decree concerning his dismissal. 20. On 28 July 2010 the HAC upheld the factual findings and legal assessments of the HCJ in the applicant’s case and dismissed the claims as unsubstantiated. 21. On 17 May 2010 the HCJ established that the applicant had breached the judicial oath. It adopted two decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had systematically made procedural mistakes when administering justice, had adopted decisions in breach of domestic law and had wrongly applied interim measures. The HCJ also considered that the applicant had incurred expenses which were manifestly incommensurate with his official income. The HCJ concluded that the facts of the case suggested that the applicant had dishonoured the judicial profession and cast doubt on his objectivity and impartiality. Objections raised by the applicant were rejected as unsubstantiated. 22. On 3 June 2010 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 23. The applicant instituted proceedings in the HAC challenging the HCJ’s decisions and the parliamentary resolution concerning his dismissal. 24. On 13 August 2010 the HAC rejected the applicant’s claims as unsubstantiated. 25. On 11 June 2009 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make a submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted several unlawful and unsubstantiated decisions and had failed to follow procedural rules when administering justice. Objections raised by the applicant were rejected as unsubstantiated. 26. On 3 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 27. The applicant instituted proceedings against Parliament challenging his dismissal before the HAC. In his claim he also argued that the conclusions of the HCJ were unfounded and unlawful; there had been violations in the proceedings before the HCJ. The HCJ joined the proceedings as a third party. 28. On 18 August 2010 the HAC rejected the applicant’s claims as unsubstantiated. It found that the HCJ’s conclusions were well-founded and that the decisions of the HCJ and Parliament were lawful. 29. On 26 May 2010 the HCJ established that the applicant had breached the judicial oath. It adopted three decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted a number of unlawful and unsubstantiated decisions and that she had failed to follow procedural rules when administering justice. The HCJ considered that the applicant’s procedural mistakes had dishonoured the judicial profession, cast doubt on her objectivity and impartiality, and suggested that she had to be dismissed. Objections raised by the applicant were rejected as unsubstantiated. 30. On 17 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 31. The applicant instituted proceedings in the HAC challenging one of the HCJ’s decisions of 26 May 2010 and the parliamentary resolution concerning her dismissal. 32. On 23 September 2010 the HAC considered the case. It found that the HCJ’s decision was lawful and substantiated. As to the other two decisions taken on the same day by the HCJ, the HAC noted that the applicant had not challenged them. The HAC concluded that there were no grounds to examine the lawfulness of the HCJ’s other decisions. The HAC further found that the applicant’s right to participate in the plenary session of Parliament had not been respected and declared the parliamentary resolution in respect of the applicant unlawful. 33. On 23 December 2010 Parliament once again voted for the dismissal of the applicant (on the basis of the HCJ’s decisions of 26 May 2010) and adopted a resolution to that effect. 34. The applicant instituted proceedings in the HAC challenging the second resolution of Parliament. 35. On 31 May 2011 the HAC rejected the claim as unsubstantiated. It found that the procedure for the applicant’s dismissal in Parliament and the resolution to that effect were lawful. 36. On 7 June 2010 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to the President of Ukraine to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had wrongly applied an interim measure in a case where the Ministry of Justice had been the defendant. It concluded that the violation had cast doubt on the applicant’s objectivity and impartiality, and suggested that he had not duly performed his duties and had dishonoured the judicial profession. 37. On 18 June 2010 the applicant was dismissed by decree of the President of Ukraine. 38. The applicant challenged his dismissal before the HAC. 39. On 27 January 2011 the HAC found that the HCJ’s decision was unlawful. It then noted that the applicant had not sought to have the presidential decree concerning his dismissal “declared unlawful” but had sought the “quashing” of that decree. However, such a measure was outside the competence of the HAC. In that regard the HAC referred to Article 11 of the Code of Administrative Justice (“the CAJ”) considering that it was prevented by that provision from examining the case beyond the scope of the claims. 40. On 18 March 2014 the Acting President of Ukraine reversed the Presidential decree of 18 June 2010 concerning the applicant’s dismissal, having regard to the HAC’s decision of 27 June 2011. 41. On 19 March 2014 the applicant resumed his office of judge. 42. On 6 December 2010 the HCJ established that the applicant had breached the judicial oath. It adopted two decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had violated procedural rules when administering justice and that he had interfered with the activities of the law-enforcement authorities when they carried out a search operation. Those violations had cast doubt on the applicant’s objectivity and impartiality, and suggested that he had not performed his duties properly. The HCJ rejected the applicant’s contentions challenging the dismissal proposal. 43. On 23 December 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 44. The applicant challenged the decisions of the HCJ and Parliament concerning his dismissal before the HAC. 45. On 6 April 2011 the HAC rejected the applicant’s claims as unsubstantiated. According to the applicant, on that day the HAC delivered only the introductory and operative parts of the decision. 46. On 5 May 2011 the HAC dispatched a copy of the full text of the decision to the applicant. Allegedly, the applicant received that letter on 7 May 2011. 47. On 1 March 2011 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted several unlawful and unfounded decisions, had wrongly applied an interim measure, and had committed procedural errors when administering justice. The HCJ considered that those violations had cast doubt on the applicant’s objectivity, impartiality and independence; they also suggested that she had ignored requirements of domestic law and had failed to perform her duties properly. The HCJ rejected objections raised by the applicant as unfounded. 48. The applicant challenged the HCJ’s decision before the HAC. 49. On 2 June 2011 the HAC rejected the applicant’s claim as unsubstantiated. 50. On 7 July 2011 a draft parliamentary resolution concerning the applicant’s dismissal was not adopted by a majority vote in Parliament. 51. On 3 November 2011 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 52. On 17 May 2012 the HAC rejected as unfounded the applicant’s claim against the HCJ and Parliament concerning her dismissal, noting in particular that the HCJ decision of 1 March 2011 had been earlier reviewed by the HAC. The HAC further found no violations in the parliamentary procedure for the applicant’s dismissal. 53. On 26 May 2010 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had participated, as a presiding judge, in the consideration of a case in which Judge V., a relative of his, had been a third party. The consideration of that case had resulted in a wrong decision, which had been quashed by a higher court. The HCJ further noted that the applicant had concealed the fact that he and Judge V. were related. The HCJ considered that those facts had cast doubt on the applicant’s objectivity and impartiality; they suggested that he had dishonoured the judicial profession, neglected the ethical rules of judicial conduct, and failed to carry out his duties properly. The HCJ rejected objections raised by the applicant as unfounded. 54. On 17 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 55. The applicant instituted proceedings in the HAC challenging the resolution of Parliament and arguing that the conclusions of the HCJ were unfounded and unlawful. 56. On 15 September 2010 the HAC considered the case. It noted that the applicant had not challenged the HCJ’s decision as such; nor had he indicated the HCJ as a party to the proceedings. The HAC concluded that there were no grounds to examine the lawfulness of the HCJ’s decision in respect of the applicant. It further found that the applicant’s right to participate in the parliamentary procedure had not been respected and declared the parliamentary resolution concerning the applicant unlawful. 57. On 23 December 2010 Parliament once again voted for the dismissal of the applicant (on the basis of the HCJ’s decision of 26 May 2010) and adopted a resolution to that effect. 58. The applicant instituted proceedings in the HAC, challenging the second resolution of Parliament. He claimed that the conclusions of the HCJ were unfounded and unlawful, and that there had been violations in the proceedings before the HCJ. He requested that the HCJ be admitted to the case as a third party. 59. On 5 July 2011 the HAC considered the case and rejected the claim as unsubstantiated. It noted that the applicant had not challenged the HCJ’s decision as such and found that there were no grounds to review its findings. The HAC further found that the procedure for the applicant’s dismissal in Parliament and the resolution to that effect were lawful. 60. On 6 December 2010 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had wrongly applied domestic law in land and administrative cases and had not followed procedural rules when dealing with those cases. It concluded that those violations had cast doubt on the applicant’s objectivity and impartiality; they suggested that he had failed to carry out his duties properly and had dishonoured the judicial profession. Objections raised by the applicant were dismissed as unfounded. 61. On 21 April 2011 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 62. On 19 May 2011 the applicant applied to the HAC challenging the HCJ’s decision and the parliamentary resolution concerning his dismissal. He also claimed that he had missed the deadline for challenging the HCJ decision because of the serious illness of his child. 63. On 21 June 2011 the HAC left the applicant’s claim against the HCJ without consideration, finding that the applicant had missed the deadline for challenging the HCJ decision without a valid reason. 64. On 21 July 2011 the HAC dismissed the applicant’s claim against the parliamentary resolution as unsubstantiated. It noted in particular that the applicant had been informed of the plenary meeting of Parliament and that his failure to appear did not give grounds for declaring the parliamentary resolution unlawful. 65. On 26 May 2010 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ found that the applicant had failed to follow procedural rules when administering justice in a corporate dispute and had adopted an unlawful decision in that case. It considered that those violations suggested that the applicant had dishonoured the judicial profession and had not acted diligently and impartially. Objections raised by the applicant were dismissed as unfounded. 66. On 17 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 67. The applicant instituted proceedings in the HAC challenging the HCJ’s decision and the resolution of Parliament. 68. On 18 August 2010 the HAC found that the decision of the HCJ was lawful. As to the proceedings in Parliament, the HAC found that the applicant’s right to participate in the parliamentary procedure had not been respected and declared the parliamentary resolution in respect of the applicant unlawful. 69. On 23 December 2010 Parliament once again voted for the dismissal of the applicant (on the basis of the HCJ’s decision of 26 May 2010) and adopted a resolution to that effect. 70. The applicant instituted proceedings in the HAC challenging the second resolution of Parliament. At the applicant’s request, the HCJ joined the case as a third party. 71. On 28 September 2011 the HAC considered the case and rejected the claim as unfounded. It noted that the HCJ’s decision of 26 May 2010 had been earlier reviewed by the HAC. It then found that the procedure for the applicant’s dismissal in Parliament and the resolution to that effect were lawful. 72. On 14 June 2011 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted several unlawful decisions and had committed procedural errors when administering justice. It considered that his errors had cast doubt on his objectivity, impartiality and independence, and suggested that he had not performed his duties properly. 73. On 22 September 2011 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 74. On 4 October 2011 the HAC dismissed a claim brought by the applicant concerning the alleged unlawfulness of the HCJ decision. 75. On 21 February 2007 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have her dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had wrongly applied an interim measure in a corporate dispute by which she had groundlessly interfered with the economic activities of a company; she had also failed to follow procedural rules when administering justice in that case. The HCJ found that those violations suggested that the applicant had not acted lawfully, impartially and independently. Objections raised by the applicant were rejected as unsubstantiated. 76. On 5 June 2008 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 77. The applicant challenged her dismissal before the Vinnytsya Administrative Court, arguing that the HCJ and Parliament had acted unlawfully. 78. On 28 November 2008 that court rejected the applicant’s claim as unfounded. 79. On 16 December 2009 the Kyiv Administrative Court of Appeal dismissed an appeal lodged by the applicant. 80. On 6 March 2012 the HAC dismissed a cassation appeal lodged by the applicant. 81. On 24 January 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had on several occasions taken leave without obtaining the relevant approval from the court administration; he had failed to appear in the office without valid reasons; he had prevented his judicial assistant from performing his functions; he had refused to take cases for consideration; and he had not complied with the requirement to submit income-tax declarations. Having regard to those facts, the HCJ found that the applicant had neglected his professional duties, dishonoured the judicial profession and had to be dismissed. 82. On 12 April 2012 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 83. Between February and August 2012 the applicant attempted to institute proceedings in the HAC challenging the HCJ’s decision. By several decisions the HAC refused to open proceedings, noting that the applicant had failed to prepare and submit his claim in accordance with the requirements of the CAJ. 84. The applicant instituted proceedings before the HAC, challenging the parliamentary resolution on his dismissal. 85. On 5 June 2012 the HAC rejected the applicant’s claim as unsubstantiated. 86. On 24 January 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had on several occasions taken leave without obtaining the relevant approval from the court administration; he had failed to appear in the office without valid reason; he had refused to take cases for consideration; he had delayed the examination of criminal cases; he had prevented his judicial assistant from performing his functions; and he had not complied with the requirement to submit income-tax declarations. Having regard to those facts, the HCJ found that the applicant had neglected his professional duties, dishonoured the judicial profession and had to be dismissed. 87. On 12 April 2012 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 88. Between February and August 2012 the applicant attempted to institute proceedings in the HAC, challenging the HCJ’s decision. By several decisions the HAC refused to open proceedings, noting that the applicant had failed to prepare and submit his claim in accordance with the requirements of the CAJ. 89. The applicant instituted proceedings before the HAC, challenging the parliamentary resolution on his dismissal. 90. On 27 June 2012 the HAC rejected the applicant’s claim as unsubstantiated. 91. On 24 January 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had on several occasions taken leave without obtaining the relevant approval from the court administration; he had failed to appear in the office without valid reason; he had refused to take cases for consideration; he had shown disrespect to the officers of the court registry; and he had not complied with the requirement to submit income-tax declarations. Having regard to those facts, the HCJ found that the applicant had neglected his professional duties, dishonoured the judicial profession and had to be dismissed. 92. On 12 April 2012 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 93. Between February and October 2012 the applicant attempted to institute proceedings in the HAC, challenging the HCJ’s decision. By several decisions the HAC refused to open proceedings, noting that the applicant had failed to prepare and submit his claim in accordance with the requirements of the CAJ. 94. The applicant instituted proceedings before the HAC, challenging the parliamentary resolution on his dismissal. 95. On 20 September 2012 the HAC rejected the applicant’s claim as unsubstantiated. 96. On 29 May 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ found that the applicant had committed numerous procedural errors when reviewing, under newly discovered circumstances, a case involving local authorities. The HCJ considered that the errors had been committed intentionally; they cast doubt on the applicant’s objectivity and impartiality and called for his dismissal. Objections raised by the applicant were rejected as unsubstantiated. 97. The applicant instituted proceedings in the HAC, challenging the HCJ’s decision. 98. On 21 June 2012 a draft parliamentary resolution concerning the applicant’s dismissal was not adopted by a majority vote. 99. On 4 July 2012 the HAC rejected the applicant’s claim against the HCJ as unsubstantiated. According to the applicant, he received the full text of the decision between 24 and 26 July 2012. 100. On 5 July 2012 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 101. The applicant instituted proceedings before the HAC, challenging the resolution of Parliament. 102. On 4 September 2012 the HAC considered the case and rejected the claim as unfounded. It noted that the HCJ’s decision of 29 May 2012 had been earlier reviewed by the HAC. It further found that the parliamentary procedure for the applicant’s dismissal and the resolution to that effect were lawful. 103. On 16 October 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have her dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant, as a member of a panel of judges, had participated in the consideration of a criminal case and the adoption of the judgment in that case. Subsequently, that judgment had been partly quashed by a higher court on the grounds that it was unsubstantiated and the sentence was too lenient. The HCJ considered that the first-instance court’s judgment had had negative consequences: it had caused discontent in society, since the criminal case had been widely discussed in the media. The HCJ concluded that the applicant had disregarded the requirements of procedural law, had not acted diligently and impartially when considering the criminal case and had to be dismissed. Objections raised by the applicant were rejected as unfounded. 104. The applicant instituted proceedings before the HAC, challenging the HCJ’s decision. 105. On 28 February 2013 the HAC rejected the applicant’s claims as unsubstantiated. It noted, among other things, that the HCJ had repeatedly postponed the hearings due to the applicant’s failure to appear and had properly informed the applicant of the hearings. 106. On 23 May 2013 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. | 1 |
test | 001-182036 | ENG | HUN | ADMISSIBILITY | 2,018 | GELLÉRTHEGYI AND OTHERS v. HUNGARY | 4 | Inadmissible | Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Georges Ravarani | 1. The applicant in application no. 78135/13, Mr István Gellérthegyi (hereinafter “the first applicant”), is a Hungarian national who was born in 1950 and lives in Budapest. He was represented before the Court by Mr A. Cech, a lawyer practising in Budapest. 2. The applicants in application no. 429/14, Mr Zoltán Balla and Ms Hajnalka Balláné Gál (hereinafter “the second and third applicant”), are Hungarian nationals who were born in 1956 and live in Budapest. 4. The applicants were employed as civil servants, notably as an associate professor of administrative law at Eötvös Loránd University and the National University of Public Service (as regards the first applicant), and as associate professors at the National University of Public Service (as regards the second and third applicants). 5. On a date not specified in the application, the applicants started receiving old-age pensions. It was disbursed to them alongside their salaries until 30 June 2013. 6. On 1 January 2013 an amendment to Act no. LXXXI of 1997 on Social-Security Pensions (hereinafter “the 1997 Pensions Act”) entered into force, pursuant to which the disbursement of those old-age pensions whose beneficiaries were simultaneously employed in certain categories within the civil service would be suspended from 1 July 2013 onwards for the duration of their employment. 7. A number of categories of persons in State employment were, however, exempted from the suspension of pension payments, such as members of Parliament and mayors, as well as persons employed in the public sector under the rules of the Labour Code (see Fábián v. Hungary [GC], no. 78117/13, § 23, 5 September 2017). Judges and prosecutors appointed to a stand-by post pursuant to Act no. XX of 2013 (see Baka v. Hungary [GC], no. 20261/12, § 54, ECHR 2016) were also exempted from the prohibition on double compensation (see paragraph 14 below). Although the suspension of pension payments also applied to health-care employees, given the importance of that sector their suspended pension payment could be compensated upon the decision of their employer by means of a salary supplement (see paragraph 15 below). 8. As of 1 July 2013, the disbursement of the applicants’ pension was suspended. 9. Partly following an application by the Ombudsman, the Constitutional Court embarked on the review of the impugned legislation’s constitutionality (see Fábián, cited above, § 16). 10. On 16 October 2017 the Constitutional Court found, in essence, that the rules concerning the ban on simultaneous receipt of a State pension and a salary struck a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights; they therefore did not violate Article XIII of the Fundamental Law enshrining the protection of property. It further held that old-age pensioners employed, respectively, in the public and in the private sector were not in an analogous or relevantly similar situation. As regards the categories of public servants exempt from the ban on dual payment of State pensions and salaries (see paragraph 7 above), the Constitutional Court was of the view that the exception at issue was based on an objective and reasonable justification, notably on their specific legal status. Accordingly, the impugned legislation did not violate Article XV of the Fundamental Law enshrining the prohibition of discrimination (see paragraph 21 below). 11. Several elements of the relevant domestic law and practice as well as comparative-law material were set out in paragraphs 19 to 43 of the Fábián judgment (cited above). 12. Between 1 January 2013 (that is to say, its taking effect) and 1 April 2013, section 83/C of the 1997 Pensions Act read as follows (italics added): “(1) The disbursement of an old-age pension shall be suspended ... if the pensioner concerned is employed as a civil servant, a government official, a senior State official, a public servant, a judge, an officer of the court, an officer of the prosecutor’s office, a professional member of an armed service, or a professional member or contractor of the Hungarian Defence Forces.” 13. As of 2 April 2013, section 83/C of the 1997 Pensions Act was amended by Act no. XX of 2013 as follows (see Fábián, cited above, § 24; italics added): “(1) The disbursement of an old-age pension shall be suspended ... if the pensioner concerned is employed as a civil servant, a government official, a senior State official, a public official, an official in charge of public-service administration, a judge, an officer of the court, an officer of the prosecutor’s office, a professional member of an armed service, or a professional member or contractor of the Hungarian Defence Forces.” 14. Section 102/J of the 1997 Pensions Act (not quoted in Fábián, cited above) provides as follows: “... [S]ections 83/C and 102/I are not applicable, as from the entry into force of Act no. XX of 2013 ... until 31 December 2022, to judges and prosecutors appointed to a stand-by post ...”. 15. Act LXXXIV of 2003 on Certain Questions Related to the Exercise of Health-care Activity, as amended on 29 April 2013, provides as follows: “(1) An employer may award a salary supplement ... to health-care employees who are employed as civil servants or who are in a Government or State-service relationship; and the disbursement of whose [old-age pension] is suspended pursuant to section 83/C of the [1997 Pensions Act] ... . (2) The ... net amount of the salary supplement awarded by the employer cannot exceed the [suspended amount of the old-age pension].” 16. The legal status of members of parliament is governed by the Fundamental Law and by Act no. XXXVI of 2012 on Parliament (hereinafter “the Parliament Act”). In so far as relevant, the Fundamental Law provides as follows: “(1) Members of parliament shall have equal rights and obligations, they shall perform their activities in the public interest, and they shall not be given instructions in that respect.” The Parliament Act provides, in particular: “(1) The term of office of members of parliament ... shall be considered, for social-security purposes, employment with a working time of forty hours per week and a service period giving rise to a pension entitlement. For the calculation of a service period as a Government official, State official, public servant, civil servant, judge or prosecutor, the duration of the above-mentioned employment shall be counted as service time spent in the relevant legal relationship.” “(1) Members of parliament are entitled, from their swearing-in until the end of their term of office, to a monthly honorarium, the amount of which equals the salary ... of a deputy State secretary, as it is regulated by the Public Servants Act.” 17. The legal status of mayors, deputy mayors, presidents and vice-presidents of county assemblies is regulated by Chapter VII/A of Act no. CXCIX of 2011 on Public Servants (hereinafter “the Public Servants Act”), which contains the following passages: “(1) The employment relationship of full-time mayors is a special public service relationship established between the body of local representatives and the mayor, [in principle] ... on the strength of [the latter’s] election.” “(1) The term of office of full-time mayors shall be calculated as the service period spent in public service, Government service or armed service and shall give rise to a pension entitlement.” “(1) If this Act does not stipulate otherwise, any reference to mayors shall be construed as including deputy mayors, presidents and vice-presidents of county assemblies, and the mayor and deputy mayors of Budapest.” 18. Mayors and local representatives (including members of county assemblies) are elected in accordance with the rules laid down in Act no. L of 2010 on the Election of Local Government Representatives and Mayors. Presidents of county assemblies are elected by the assemblies themselves from among their members, in accordance with Article 33 § 2 of the Fundamental Law. Deputy mayors and vice-presidents of county assemblies are also elected by the respective body of local representatives from among their members, in accordance with section 74 of Act no. CLXXXIX of 2011 on the Local Governments of Hungary. 19. The Constitutional Court Act (Act no. CLI of 2011) provides as follows: “Members of the Constitutional Court shall be independent, subordinated only to the Fundamental Law and Acts.” “(2) Under their term of office and for the purposes of entitlement to social-security benefits, members of the Constitutional Court shall be considered insured employees in public service, and their salary shall be considered income from an activity other than self-employment, comprising part of the contribution base. The term of office of members of the Constitutional Court shall be considered to be the time spent in public-service employment.” “(1) Members of the Constitutional Court shall not be held accountable in court or by other authorities during or after their term of office for the activities carried out or statements of fact or opinion made while exercising the competences of the Constitutional Court as defined in the Fundamental Law and in this Act, and no proceedings shall be initiated against the Constitutional Court for such statements of fact or opinion in court or before other authorities. This exemption shall not cover abuse of information classified top secret or secret, libel, defamation and the civil law liability of Members of the Constitutional Court.” “(2) This Act shall be considered a Cardinal Act pursuant to Article 24 (9) of the Fundamental Law.” 20. In connection with persons employed in the public service under the rules of the Labour Code, the Public Servants Act provides as follows: “(1) For tasks directly related to the exercise of public powers and powers of guidance, inspection and supervision of a public-service institution, as well as for administrative tasks, persons may be employed only as Government officials or public servants. (2) No contract for services, works contract or [ordinary labour-law] employment contract may be concluded for the completion of a task which shall exclusively be exercised by a person appointed as a Government official or public servant. ... (4) The proportion of persons ... employed by a public-service institution [under the Labour Code] in a given year ... shall not exceed 10% of the average yearly staff number. ... ... (9) The rules contained in subsections (1) to (4) above do not apply to the Office of the Parliament and to the Historical Archives of Hungarian State Security. (10) As an exception to the rule contained in subsection (1) above, procedural tasks at diplomatic or consular representations ... may also be carried out by individuals other than Government officials or public servants.” 21. The Constitutional Court’s decision of 16 October 2017 (decision no. 29/2017. (X. 31.) AB, see paragraph 10 above) contains the following passages concerning the allegedly unjustified difference in treatment between pensioners employed in different categories within the public sector: “77. It is apparent from the [impugned] rules of [the 1997 Pensions Act] that they do not apply to every person in State service but only to persons falling under the scope of specific legislative acts governing the status of certain categories of public servants. 78. For example, they do not apply to certain elected officials or to those who are employed [under the rules of the Labour Code], even if the employer is a budgetary institution. Although the rules could be extended to cover every position and every public servant, the exceptions are reasonably justified, on the one hand, by the fact that they are related to passive electoral rights and, on the other hand, by the specific legal status of certain appointed officials (section 102/J [of the 1997 Pensions Act]). 79. [Taking into account] the efforts to balance the pension system, the difference in treatment in question has a perceivable, objective and reasonable justification. Therefore it does not violate Article XV § 1 of the Fundamental Law.” | 0 |
test | 001-173366 | ENG | ARM | CHAMBER | 2,017 | CASE OF CHAP LTD v. ARMENIA | 4 | Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Administrative proceedings;Criminal proceedings) (Article 6 - Right to a fair trial;Administrative proceedings;Criminal proceedings;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Robert Spano | 5. The applicant company, Chap Ltd, is a private Armenian company that was set up in 1999 and has its registered office in Gyumri. 6. In 2005 the applicant company established a regional television channel, Gala TV, with the intention of broadcasting in the local region. 7. On 23 February 2005 the applicant company was granted a licence by the National Television and Radio Commission (“the NTRC”) permitting it to broadcast in Gyumri, the second largest town in Armenia, and the surrounding area. The licence was granted for a period of seven years. Gala TV was one of four television stations operating in Gyumri and, according to the applicant company, it was widely recognised as one of the few independent voices in television broadcasting in Armenia. 8. From 29 October to 12 November 2007 the State Revenue Service (“the SRS”) conducted an inspection of the applicant company’s accounts. As a result, on 12 November 2007 it issued a report stating that the applicant company had a high tax liability for the years 2005 to 2007 and ordered it to pay 25,665,100 Armenian drams (AMD) (approximately 51,000 euros (EUR)), including surcharges and fines. The report stated that the indicated amounts were payable to the State budget within a period of ten days. 9. The SRS established in its report that the applicant company had underreported its tax liability by hiding income earned from advertising. The report also stated that the applicant company had failed to include the prices for its services in its invoices or keep records, as required by the Television and Radio Broadcasting Act. Furthermore, it was alleged that the applicant company had manufactured and sold fireworks without a government licence. 10. The SRS’s report was based, inter alia, on: a) documents requested from and subsequently submitted by Gr.A., the head of the NTRC; b) statements by the heads of companies and individual businessmen that they had placed advertisements on Gala TV but had not received any documents acknowledging payment to the applicant company for such services. 11. The applicant company objected to the allegations of tax evasion as fabricated and politically motivated as home-made advertisements that had a social function, which Gala TV had broadcast for free, had been taken into account by the authorities in calculating the tax arrears. 12. On an unspecified date the SRS instituted criminal proceedings against the applicant company’s chief executive, K.H., for tax evasion. The investigating authorities discontinued the proceedings after the required amount had been paid. 13. Having received no payment from the applicant company as regards the amounts stated in its report of 12 November 2007, on 26 November 2007 the SRS brought a claim with the Commercial Court to oblige the applicant company to pay AMD 25,212,800 (approximately EUR 50,000) in tax debt and to freeze its bank accounts and other assets in the amount of the alleged tax shortfall. 14. On 27 November 2007 the Commercial Court admitted the case to its proceedings and at the same time dismissed the application to freeze the applicant company’s bank accounts. 15. On 3 December 2007 the Commercial Court approved a freezing order on the applicant company’s assets as security for the claim. 16. On 17 December 2007 the applicant company brought a counterclaim against the SRS, challenging the results of the tax inspection. It argued, inter alia, that the relevant statements obtained from the heads of companies and individual businessmen, as well as the information obtained from Gr.A., could not be used as evidence to support the findings of the SRS in its report. 17. On 24 December 2007 the applicant company’s case was transferred to the Administrative Court, which had been set up as part of a reform of the court system that year. 18. On 29 January 2008 the Administrative Court admitted the case. 19. On 12 March 2008 the applicant company’s lawyer lodged an application to obtain and examine the tax records of the companies that had advertised on Gala TV and had been inspected by the SRS. He claimed that those tax records contained tax reports and other documents which could rebut the evidence submitted by the SRS. This application was rejected. 20. On the same day the applicant company’s lawyer also asked the Administrative Court to summon, inter alia, the heads of the relevant companies and the businessmen, namely A.J., S.A., S.M., H.P., G.S., G.A. and H.M. to whose statements the SRS had referred in its report. 21. By another application submitted on the same date the lawyer asked the Administrative Court to summon Gr.A. to testify about the information and documents he had provided to the SRS and confirm the veracity of those documents. 22. The applicant company’s applications were rejected by the Administrative Court, which considered the witness evidence in question as irrelevant. 23. On 19 March 2008 the Administrative Court granted the SRS’s claim against the applicant company in part. It annulled the SRS’s report in respect of a charge of AMD 96,000 (approximately EUR 190) imposed on the applicant company for the alleged illegal production and sale of fireworks. The Administrative Court decided to levy a total charge of AMD 25,116,700 (approximately EUR 50,000) on the company, including AMD 14,291,300 (approximately EUR 28,400) for Value Added Tax (VAT), comprising arrears, a 60% fine and surcharges for late payment; AMD 8,338,300 (approximately EUR 16,600) for profit tax, comprising arrears, a 60% fine and surcharges for late payment; and AMD 2,487,100 (approximately EUR 5,000) for the tax authority’s development fund. The Administrative Court referred to the relevant provisions of the Law on Value Added Tax and the Law on Taxes when imposing the surcharges and fines. In establishing the applicant company’s VAT and profit tax liability, it relied, inter alia, on the documents provided by Gr. A. and the statements of A.J., S.A., S.M., H.P., G.S., G.A. and H.M. which had been referred to in the SRS’s report. The amount of court fees to be paid by the applicant company was calculated at AMD 502,334 (approximately EUR 1,000). 24. On 18 June 2008 the applicant company lodged an appeal on points of law with the Administrative Court. 25. On 4 August 2008 the Court of Cassation returned the applicant company’s appeal on the grounds that it had failed to pay the correct amount of State fee and set a deadline for resubmission. 26. After paying the required State fee, the applicant company resubmitted its appeal on 3 September 2008. 27. On 18 September 2008 the Court of Cassation declared the applicant company’s appeal on points of law inadmissible for lack of merit. | 1 |
test | 001-154742 | ENG | ROU | ADMISSIBILITY | 2,015 | TUCALIUC v. ROMANIA | 4 | Inadmissible | Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Fănică Tucaliuc, is a Romanian national, who was born in 1950 and lives in Bucharest. He was represented before the Court by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 21 October 2003 the National Anticorruption Prosecutor’s Office decided to commence a criminal prosecution against the applicant, a colonel in the Romanian army and employee of the Ministry of Defence, for abuse of office and bribe-taking. He was subsequently indicted and on 31 March 2011 the Bucharest County Court convicted him of the above-mentioned crimes and sentenced him to seven years’ imprisonment. 5. The applicant’s appeal against this decision was partially allowed on 2 April 2012 by the Bucharest Court of Appeal which decided to reduce his sentence to five years’ imprisonment. 6. The applicant filed an appeal on points of law (recurs) against the decision of the Bucharest Court of Appeal. Among other requests, he claimed before the High Court of Cassation and Justice (“High Court”) nonpecuniary damage in compensation for the excessive length of the proceedings. 7. In its judgment of 30 January 2014 the High Court took note of the length of the proceedings, acknowledging that it had exceeded the reasonable time requirement and breached the provisions of Article 6 of the Convention in respect of the applicant. It further held that, in order to remedy this situation, the applicant’s sentence would be reduced to three years although the punishment for the crimes of which the applicant was convicted was between five to seventeen years’ and three to fifteen years’ imprisonment respectively. The High Court also mentioned that it was not competent to examine the applicant’s request for non-pecuniary damage arising out of the excessive length of the proceedings but that such a request could be addressed by the applicant to the civil courts. 8. The High Court further decided to suspend the execution of the applicant’s sentence, having in mind the timeframe that had elapsed from the date the crime was committed - a period of time in which the applicant had been of good behaviour and taking into account the fact that he had been held in pre-trial detention for eleven months - a period sufficient for him to understand the gravity of his acts. The elements analysed under the issue of the length of the proceedings were also taken into consideration for this decision. 9. The relevant Romanian legal provisions on the issue of length of criminal proceedings are described in the case of Vlad and Others v. Romania (nos. 40756/06, 41508/07 and 50806/07, §§ 62-63, 68, 70-72 and 75, 26 November 2013). | 0 |
test | 001-140766 | ENG | POL | COMMITTEE | 2,014 | CASE OF HAJDUK v. POLAND | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney | 5. The applicant was born in 1956 and lives in Borki Nizińskie. 6. The applicant is married with two children. Prior to his early retirement he had been employed for 23 years and had paid his social security contributions to the State. 7. On 18 December 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8. Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist doctor on 14 December 2001. The certificate stated that the child (born in 1990) suffered from, among other things, urinary tract infection and chronic headaches and that she was in need of her parent’s constant care. 9. On 20 December 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension. 10. The Social Security Board initially suspended the payment of the pension until the end of the year 2001 due to the fact that the applicant was still working on the date of the decision. 11. On 31 December 2001 the applicant’s employment contract expired. It had been terminated by the employer with three-month notice for reasons attributable to the employer’s financial situation. 12. Consequently, on 1 January 2002 the Rzeszów Social Security Board started to pay the retirement pension in the net amount of 1,324.57 Polish zlotys (PLN) (approximately 370 euros (EUR)). 13. The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and he continued to receive his pension without interruption until the date of the revocation of the right. 14. On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 13 September 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 15. On 19 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. 16. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the 1989 Ordinance. 17. The applicant appealed against the respective decisions divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights. 18. On 25 September 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. 19. The applicant appealed against the first-instance judgment. 20. On 12 October 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he had not satisfied the requirement of necessary permanent care. 21. A professional lawyer prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf. 22. On 22 June 2004 the Supreme Court rejected the cassation appeal (odrzucił) on the ground that the lawyer had not properly described the circumstances which would justify the examination of the cassation appeal (okolicznośći uzasadniające rozpoznanie kasacji). 23. Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to an early-retirement pension. 24. Throughout the whole period of receiving the EWK pension the applicant did not work. 25. More than one year after the pension had been revoked, the applicant started working on the basis on a mandate contract. He worked for three months from 20 October until 22 December 2003. 26. In 2004 the applicant remained unemployed for ten months. On 25 October 2004 he started to work on a permanent basis. 27. The Government submitted that the applicant’s gross annual income was PLN 1,100 (approx. EUR 262) in 2003, PLN 2,056.67 (approx. EUR 456) in 2004, PLN 11,464.50 (approx. EUR 2,870) in 2005, PLN 12,480 (approx. EUR 3,285) in 2006, PLN 13,080 (approx. EUR 3,535) in 2007, PLN 14,111 (approx. EUR 3,813) in 2008, PLN 17,880 (approx. EUR 4,250) in 2009. 28. The Government also submitted that the applicant had owned a 4.59 ha farm and had received some direct payments from the Agency of Modernisation and Restructuring of Agriculture in the amount of PLN 1,948.43 (approx. EUR 430) in 2004, PLN 1,934.50 (approx. EUR 480) in 2005, 2,327.58 (approx. EUR 612) in 2006, PLN 2,161.67 (approx. EUR 584) in 2007, PLN 3,554.03 (approx. EUR 960) in 2008 and PLN 6,592.63 (approx. EUR 1,570) in 2009. They further submitted that “there were no doubts that the applicant’s farm had constituted a source of income”; they failed however to submit any evidence to support this statement. The applicant submitted that the income from his farm had been “minimal”. 29. The Government also maintained that the applicant’s wife had a gainful employment. In the years 2003-2007 she earned between 20 and 39% of the average gross salary in Poland. 30. The applicant has a son who also worked at the relevant time. He earned 5.25% of the average gross salary in Poland in 2002, 3.31% in 2003, 13.3% in 2004, 34.02% in 2005, 33.80% in 2007, 88.86% in 2008, 96.10% in 2009. In 2006 he apparently did not work. 31. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension when he turns sixtyfive in 2021. | 1 |
test | 001-164526 | ENG | ITA | CHAMBER | 2,016 | CASE OF BRAMBILLA AND OTHERS v. ITALY | 3 | No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom to impart information) | Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano | 5. The applicants were born in 1954, 1976 and 1971 respectively and live in Lecco. 6. The first applicant is the editor of a local online newspaper in the province of Lecco. The other two applicants are journalists working for the newspaper. 7. In the course of their activities, the applicants used radio equipment to access frequencies used by the police or the carabinieri. This enabled them to learn of any communications transmitted in that way, so that they could arrive quickly on the scene when wishing to report on specific incidents. 8. On 1 August 2002 the applicants listened in on a conversation during which the Merate carabinieri operations centre decided to send a patrol to a location where, according to anonymous sources, weapons had been stored illegally. 9. The carabinieri accordingly went to the location mentioned, and the second and third applicants arrived on the scene immediately afterwards. 10. Having obtained a search warrant, the carabinieri searched the applicants’ car, finding two frequency-modulation transmitter/receivers that were capable of intercepting police radio communications. 11. The carabinieri then went to the two journalists’ editorial office and seized two fixed radio receivers, which were tuned to the frequencies used by the carabinieri. Other frequencies used by police operations centres were stored in the devices’ memory. 12. Criminal proceedings were instituted against the first and second applicants for illegally installing equipment designed to intercept communications between law-enforcement agencies’ operations centres and patrols (Articles 617, 617 bis and 623 bis of the Criminal Code). The third applicant was charged with accessing the aforementioned communications (Articles 617 and 623 bis of the Criminal Code). 13. On 9 November 2004 the Lecco District Court acquitted the applicants. It held that the relevant Articles of the Criminal Code were to be interpreted in the light of Article 15 of the Constitution, which only protected communications of a confidential nature. 14. The District Court observed that the radio device used by the law-enforcement agencies was unable to ensure the confidentiality of the information it transmitted. Accordingly, the interception of the communications in question did not constitute an offence. Moreover, the possession and use of radio receivers were not prohibited as such. 15. The Milan principal public prosecutor and the Lecco public prosecutor appealed. They argued that the Lecco District Court’s interpretation was inconsistent with the Court of Cassation’s case-law in such matters (citing in particular judgment no. 12655 of 23 January 2001) and that the communications in issue were clearly confidential, bearing in mind the aims of ensuring public safety and protecting public order. In addition, the communications concerned the initial investigations following the commission of an offence. They were therefore subject to a confidentiality requirement pursuant to Article 329 of the Code of Criminal Procedure. 16. The confidential nature of the communications was also obvious from the fact that the carabinieri used coded language for communications concerning the location and the type of intervention, clearly seeking to ensure that no third parties had knowledge of the information being exchanged. In addition, the radiofrequencies involved had been exclusively assigned to operations centres by the Ministry of Defence. 17. Furthermore, in order to listen in on the conversations, the applicants had had to purchase special radio equipment, as ordinary equipment could not be used for this purpose. On the other hand, the fact that such devices were freely available on the market did not justify their use for intercepting conversations between law-enforcement officers. 18. In addition, in accordance with Presidential Decree no. 447/2001, as in force at the material time, devices of this kind were intended to be purchased by amateur radio operators but could not be used to intercept police radiofrequencies. Lastly, the Ministry of Communications’ decree of 11 February 2003 had expressly prohibited amateur radio operators from intercepting communications which they were not entitled to receive. 19. In a judgment of 15 May 2007 the Milan Court of Appeal found the first and second applicants guilty and sentenced them to one year and three months’ imprisonment. The third applicant was sentenced to six months’ imprisonment. The Court of Appeal suspended the applicants’ sentences. 20. It observed that Article 623 bis of the Criminal Code, as amended by Law no. 547 of 23 November 1993, had extended the scope of criminal responsibility to cover all remote data transmission, thus including the interception of conversations between the law-enforcement agencies’ operations centres and patrols. 21. Such communications were, moreover, clearly confidential. Reiterating all the arguments put forward by the Milan and Lecco public prosecutors, particularly regarding the aims of ensuring public safety and protecting public order, the Court of Appeal held that Article 329 of the Code of Criminal Procedure was also at issue in the present case. 22. The applicants appealed to the Court of Cassation. They contended that the communications in question had been transmitted on unencrypted frequencies and thus could not be treated as confidential. Furthermore, they had been acting in a professional capacity as journalists, and their actions were therefore justified under Article 51 of the Criminal Code and in terms of freedom of the press. 23. In a judgment of 28 October 2008 the Court of Cassation found against the applicants, upholding the Court of Appeal’s position as to the confidential nature of the communications and reiterating that this interpretation was consistent with its own approach in similar cases, particularly in judgments no. 25488 of 6 May 2004 and no. 5299 of 15 January 2008. 24. Addressing the applicants’ argument concerning freedom of the press, the Court of Cassation stated that the right to impart information, which they had relied on, might have prevailed over the public interests protected by criminal law in a case of alleged defamation. However, that right could not take precedence in a case concerning the illegal interception of communications between law-enforcement officers. ... | 0 |
test | 001-146097 | ENG | SVN | ADMISSIBILITY | 2,014 | BIZJAK v. SLOVENIA | 4 | Inadmissible | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 1. The applicant, Mr Borut Bizjak, is a Slovenian national, who was born in 1981 and lives in Izola. He was represented before the Court by Mr J. Ahlin, a lawyer practising in Ljubljana. 2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs Tjaša Mihelič Žitko, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was detained in the remand section of Ljubljana prison on 6 September 2011. The Government submitted that he had been released on 19 or 20 March 2012. The applicant claimed that he had been released on 20 March. 5. From 6 September 2011 to 22 December 2011 the applicant was held in cell no. 41, measuring 17.74 square metres (including a separate 1.89 square metre sanitary facility). According to the Government, the number of detainees held in the cell fluctuated between four and six. On 22 December 2011 the applicant was held with another detainee in cell no. 53, measuring 8.6 square metres (including a separate 1.49 square metre sanitary facility). From 23 December 2011 until his release he was held in cell no. 91, measuring 17.35 square metres (including a separate 1.71 square metre sanitary facility). According to the Government, the number of detainees held in that cell fluctuated between three and five. The applicant alleged that he had shared the cells with five other detainees. 6. The relevant domestic law is resumed in Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, §§ 24-37, 20 October 2011), and Štrucl and others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, §§ 33-47, 20 October 2011). For the purposes of the examination of the present application, the Court points out that under Article 179 of the Civil Code, if it is established that the circumstances of a case, and in particular the degree of pain and fear, and their duration, justify it, an injured party may be awarded monetary compensation, irrespective of any compensation for material damage. Even if there is no material damage, he or she may be awarded damages for the physical pain endured; for psychological anguish resulting from a general loss of the ability to perform vital functions, disfigurement, defamation, or infringement of personal freedom or personality rights; for the death of a next-of-kin; and for the fear experienced. The latest observations submitted by the parties (dated 17 April 2014) summed up as follows the decisions of the domestic courts in response to claims for compensation for allegedly inadequate conditions of detention. 7. On 9 May 2011 the Ljubljana Local Court found that the plaintiff’s personality rights, as well as the prohibition of torture and inhuman or degradation treatment, had been violated on account of inadequate conditions in the remand section of Ljubljana prison (judgment no. I P 1725/2010). The plaintiff had spent about seven months (from July 2006 to March 2007) in Ljubljana prison as a remand prisoner. For most of that time he had been held together with five other detainees in a cell measuring about 18 square metres. The court found that all four elements of civil tort were established, namely: unlawful act, occurrence of damage, causal link and the defendant’s responsibility. The court noted that there was no case-law on the matter thus far and that that first judgment should establish principles for the future. Referring also to Kalashnikov v. Russia (no. 47095/99, ECHR 2002VI), the court noted that the rights guaranteed by the Convention represented a minimum standard and that the protection afforded by the national legislation should go beyond that minimum. It found that the personal space afforded to the plaintiff had been far below the standard of 7 square metres for multi-occupancy cells recommended by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) and provided for in section 27 of the Regulation on the Execution of Sentences. It was therefore in breach of the plaintiff’s personality rights. The court further observed that the overcrowding had had a negative effect on other aspects of the plaintiff’s detention. It found that the plaintiff’s personality rights had been breached also on account of poor ventilation, disturbances during the night, verbal and physical conflicts in the cell, and the fact that he could not eat his meals at a table or use the telephone for at least ten minutes (as provided for in the regulations). Those conditions amounted to a violation of Article 18 of the Slovenian Constitution, which prohibited torture or inhuman or degrading punishment or treatment. The plaintiff was awarded compensation for non-pecuniary damage in the amount of 2,290 euros (EUR) (see Mandić and Jović, cited above, § 103). When deciding on the amount of compensation, the court took into consideration the Court’s case-law, in particular as established in the case of Kalashnikov, cited above. 8. On 21 March 2012 the Ljubljana Higher Court dismissed an appeal lodged by the Republic of Slovenia (judgment no. II Cp 2360/2011) against the judgment of 9 May 2011. It held that the amount of compensation awarded was fair as it approximately corresponded to two average monthly net salaries in the Republic of Slovenia in May 2011. On 23 August 2012 the Supreme Court dismissed a request for an appeal on points of law lodged by the Republic of Slovenia (judgment no. II DoR 174/2012). 9. Previously, on 9 September 2010 the Grosuplje Local Court, considering the Court’s case-law on prison conditions and the plaintiff’s personal circumstances, had dismissed a claim for compensation regarding the detention conditions in Dob prison. That judgment had been upheld by the Ljubljana Higher Court on 23 March 2011. 10. The Grosuplje Local Court had also issued on 18 May 2010 a default judgment regarding prison conditions in Dob Prison, on the grounds that the plaintiff had not attended the hearing to which he had been duly summoned. 11. In 2013 the Trebnje Local Court decided on five claims for compensation lodged in 2009 and 2010 concerning conditions in Dob prison; three of them were dismissed for lack of a violation of the plaintiffs’ personality rights and in the other two cases default judgments were issued. In 2012 and 2013, six claims for compensation were lodged concerning conditions in Ljubljana prison; in one of the cases a settlement was reached with the plaintiff, and as of the date of the latest information available to the Court (17 April 2014), the other five cases were still pending before the domestic courts. | 0 |
test | 001-180506 | ENG | LTU | CHAMBER | 2,018 | CASE OF SEKMADIENIS LTD. v. LITHUANIA | 3 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Vincent A. De Gaetano;Georges Ravarani | 5. The applicant company is a limited liability company established under Lithuanian law with its registered office in Vilnius. 6. In September and October 2012, for about two weeks, the applicant company ran an advertising campaign introducing a clothing line by designer R.K. The campaign featured three visual advertisements which were displayed on twenty advertising hoardings in public areas in Vilnius and on R.K.’s website (hereinafter “the advertisements”). 7. The first of the three advertisements showed a young man with long hair, a headband, a halo around his head and several tattoos wearing a pair of jeans. A caption at the bottom of the image read “Jesus, what trousers!” (Jėzau, kokios tavo kelnės!). 8. The second advertisement showed a young woman wearing a white dress and a headdress with white and red flowers in it. She had a halo around her head and was holding a string of beads. The caption at the bottom of the image read “Dear Mary, what a dress!” (Marija brangi, kokia suknelė!). 9. The third advertisement showed the man and the woman together, wearing the same clothes and accessories as in the previous advertisements. The man was reclining and the woman was standing next to him with one hand placed on his head and the other on his shoulder. The caption at the bottom of the image read “Jesus [and] Mary, what are you wearing!” (Jėzau Marija, kuo čia apsirengę!). 10. On 28 September and 1 October 2012 the State Consumer Rights Protection Authority (Valstybinė vartotojų teisių apsaugos tarnyba – hereinafter “the SCRPA”) received four individual complaints by telephone concerning the advertisements. The individuals complained that the advertisements were unethical and offensive to religious people. 11. After receiving those complaints, the SCRPA asked the Lithuanian Advertising Agency (Lietuvos reklamos biuras – hereinafter “the LAA”), a self-regulation body composed of advertising specialists, to give an opinion on the advertisements. On 2 October 2012 a seven-member commission of the LAA decided by five votes to two that the advertisements breached the General Principles and Articles 1 (Decency) and 13 (Religion) of the Code of Advertising Ethics (see paragraph 37 below). The LAA commission held: “In the commission’s view, the advertisements may lead to dissatisfaction of religious people. [The advertisements might be seen as] humiliating and degrading people because of their faith, convictions or opinions. Religious people always react very sensitively to any use of religious symbols or religious personalities in advertising, so we suggest avoiding the possibility of offending their dignity. In this case the game has gone too far. (Šiuo atveju užsižaista per daug.) Humour is understandable but it can really offend religious people. We suggest finding other characters for communicating the uniqueness of the product. ... It is recommended ... to have regard for the feelings of religious people, to take a more responsible attitude towards religion-related topics in advertising, and to stop the dissemination of the advertisements or change the characters depicted therein.” 12. On 8 October 2012 the SCRPA received a complaint from a law firm in Kaunas concerning the advertisements. The complaint stated that the advertisements degraded religious symbols, offended the feelings of religious people and created “a danger that society might lose the necessary sense of sacredness and basic respect for spirituality” (kyla pavojus visuomenei nustoti būtinos sakralumo pajautos ir elementarios pagarbos dvasingumui). It asked the SCRPA to fine the applicant company and to order it to remove the advertisements as being contrary to public order and public morals. 13. The SCRPA forwarded the aforementioned complaints and the LAA opinion (see paragraphs 10-12 above) to the State Inspectorate of Non-Food Products (Valstybinė ne maisto produktų inspekcija – hereinafter “the Inspectorate”). On 9 October 2012 the Inspectorate informed the applicant company that the advertisements were possibly in violation of Article 4 § 2 (1) of the Law on Advertising as being contrary to public morals (see paragraph 34 below). It stated: “The Inspectorate, having examined the material presented to it, is of the view that the advertisements use religious symbols in a disrespectful and inappropriate manner. Religious people always react very sensitively to any use of religious symbols or religious personalities in advertising. The use of religious symbols for superficial purposes may offend religious people. Advertisements must not include statements or visuals which are offensive to religious feelings or show disrespect for religious people.” 14. The applicant company submitted written explanations to the Inspectorate. It firstly submitted that in the advertisements the word “Jesus” was used not as an address to a religious personality but as an emotional interjection which was common in spoken Lithuanian, similar to “oh my God!”, “oh Lord!”, “God forbid!” (Dievuliau, Viešpatie, gink Dieve) and many others. The applicant company argued that, because of its common use to express one’s emotions, that word had lost its exclusively religious significance. It further submitted that the people depicted in the advertisements could not be unambiguously considered as resembling religious figures, but even if they were, that depiction was aesthetically pleasant and not disrespectful, unlike various kitschy and low-quality religious items typically sold in markets. It further contended that, in the absence of a State religion in Lithuania, the interests of one group – practising Catholics – could not be equated to those of the entire society. It lastly submitted that the LAA opinion had been based on emotional assessment but not on any proven facts, as demonstrated in particular by such phrases as “religious people always react very sensitively to any use of religious symbols or religious personalities in advertising” or “the game has gone too far” (see paragraph 11 above). The applicant company therefore argued that the advertisements had not breached any law and that holding to the contrary would be detrimental to the right to freedom of thought and expression, protected by the Constitution. 15. On 27 November 2012 the Inspectorate drew up a report of a violation of the Law on Advertising against the applicant company. The report essentially repeated the contents of the Inspectorate’s previous letter to the applicant company (see paragraph 13 above), adding that “advertisements of such nature offend[ed] religious feelings” and “the basic respect for spirituality [was] disappearing” (nelieka elementarios pagarbos dvasingumui). It was forwarded to the SCRPA. 16. On 29 January 2013 the SCRPA asked the Lithuanian Bishops Conference (Lietuvos vyskupų konferencija), which is the territorial authority of the Roman Catholic Church in Lithuania, for an opinion on the advertisements. On 5 March 2013 the latter submitted the following opinion: “Religious symbols are not just simple signs, pictures or logos. In the Christian tradition, a religious symbol is a visible sign representing the invisible sacred reality. The advertisements ... make both visual and written references to religious sacred objects, such as a rosary, the names of Jesus and Mary, and the symbol of the Pietà. Christ and Mary, as symbols of faith, represent certain moral values and embody ethical perfection, and for that they are examples of appropriate behaviour and desirable life for the faithful. The inappropriate depiction of Christ and Mary in the advertisements encourages a frivolous attitude towards the ethical values of the Christian faith, and promotes a lifestyle which is incompatible with the principles of a religious person. The persons of Christ and Mary are thereby degraded as symbols of the sacredness of the Christian faith. For that reason, such depiction offends the feelings of religious people. The degrading and distortion of religious symbols by purposely changing their meaning is contrary to public morals, especially when it is done in pursuit of commercial gain, and must therefore not be allowed, in line with Article 4 of the Law on Advertising.” 17. On 21 March 2013 the SCRPA held a meeting in which representatives of the applicant company, the State Inspectorate of NonFood Products and the Lithuanian Bishops Conference participated. A representative of the Bishops Conference repeated its previous position (see paragraph 16 above) and stated that it had received complaints from about a hundred religious individuals concerning the advertisements. Representatives of the applicant company also expressed essentially the same position as in their previous submissions to the Inspectorate (see paragraph 14 above). They in particular argued that the people depicted in the advertisements differed in several aspects from the depiction of Jesus and Mary in religious art, and that an educated and cosmopolitan society would not equate every picture with such art. They further submitted that the advertisements had relied on wordplay and they had been meant to be funny but not to offend anyone. 18. On the same day the SCRPA adopted a decision against the applicant company concerning a violation of Article 4 § 2 (1) of the Law on Advertising (see paragraph 34 below). It noted that the concept of “public morals” was not defined in any legal instruments, but it necessarily implied respect for the rights and interests of others. It also stated that “advertising must be tasteful and correspond to the highest moral standards” and that “advertising which might humiliate or degrade people because of their faith, convictions or opinions must be considered immoral and unacceptable”. The SCRPA considered that “the elements of the advertisements taken together – the persons, symbols and their positioning – would create an impression for the average consumer that the depicted persons and objects were related to religious symbols”. It further stated: “When determining whether the use of religious symbols in the present case was contrary to public morals, [the SCRPA] notes that religious people react very sensitively to any use of religious symbols or religious persons in advertising, especially when the chosen form of artistic expression is not acceptable to society – for example, the bodies of Jesus and Mary are adorned with tattoos. [The SCRPA] also agrees with the Lithuanian Bishops Conference that the use of religious symbols for commercial gain in the present case exceeds the limits of tolerance. [The SCRPA] considers that using the name of God for commercial purpose is not in line with public morals. With that in mind, [the SCRPA] notes that the inappropriate depiction of Christ and Mary in the advertisements in question encourages a frivolous attitude towards the ethical values of the Christian faith, promotes a lifestyle which is incompatible with the principles of a religious person, and that way the persons of Christ and Mary are degraded as the sacred symbols of Christianity ... In addition, the inappropriate depiction of Christ and Mary in the advertisements was not only likely to offend the feelings of religious people but actually offended them because [the SCRPA] has received complaints about them ... and the Lithuanian Bishops Conference has received a letter expressing dissatisfaction of the [nearly a hundred] religious individuals, which demonstrates that the feelings of religious people have been offended. It must be emphasised that respect for religion is undoubtedly a moral value. Accordingly, disrespecting religion breaches public morals.” 19. Accordingly, the SCRPA concluded that the advertisements had breached Article 4 § 2 (1) of the Law on Advertising (see paragraph 34 below). When determining the penalty, it took into account several circumstances: the advertisements had been displayed in public places and must have reached a wide audience, and there had been complaints about them; at the same time, the advertisements had only been displayed for a few weeks and only in the city of Vilnius; the applicant company had stopped displaying them after it had been warned by the authorities, and it had cooperated with the SCRPA; it had been the first such violation committed by the applicant company. As a result, the applicant company was given a fine of 2,000 Lithuanian litai (LTL – approximately 580 euros (EUR); see paragraph 36 below). 20. The applicant company brought a complaint concerning the SCRPA’s decision (see paragraphs 18 and 19 above) before an administrative court. It argued that the persons and objects shown in the advertisements were not related to religious symbols: neither the characters themselves nor their clothes, positions or facial expressions were similar to the depiction of Jesus Christ and the Virgin Mary in religious art; the only physical similarity was the long hair of the man but every man with long hair could not be presumed to be a depiction of Jesus. The applicant company also submitted that the expressions “Jesus!”, “Dear Mary!” and “Jesus [and] Mary!” were widely used in spoken language as emotional interjections, and the advertisements had used them for the purpose of wordplay, not as a reference to religion. 21. The applicant company further argued that the Law on Advertising did not explicitly prohibit all use of religious symbols in advertising but only when such use may offend the sentiments of others or incite hatred (see paragraph 34 below). It submitted that the advertisements were not offensive or disrespectful in any way, and that the SCRPA had not justified why they “exceeded the limits of tolerance” or why “using the name of God for commercial purposes [was] not in line with public morals” (see paragraph 18 above). The applicant company also submitted that complaints by a hundred individuals (see paragraphs 10, 12 and 17 above) were not sufficient to find that the majority of religious people in Lithuania had been offended by the advertisements. 22. Lastly, the applicant company submitted that the advertisements were a product of artistic activity and were therefore protected freedom of expression, guaranteed by the Constitution. 23. On 12 November 2013 the Vilnius Regional Administrative Court dismissed the applicant company’s complaint. The court considered that the SCRPA had correctly assessed all the relevant circumstances (see paragraphs 18 and 19 above), and concluded that “the form of advertising used by [the applicant company was] prohibited because it distort[ed] the main purpose of a religious symbol (an object of religion) respected by a religious community – that purpose being to refer to a deity or to holiness”. 24. The applicant company appealed against that decision. In its appeal it repeated the arguments raised in its initial complaint (see paragraphs 2022 above). It also provided four examples of other advertisements for various products which had depicted religious figures, religious symbols and Catholic priests – one of those was an advertisement for beer depicting a wooden figure of Jesus, common in the Lithuanian folk art (Rūpintojėlis). The applicant company argued that such examples strengthened its argument that the use of religious symbols in advertising was not prohibited as such, unless it was offensive or hateful – and it submitted that its advertisements did not fall into either of those categories, as they did not include any slogans or visuals directly degrading religious people or inciting religious hatred. 25. On 25 April 2014 the Supreme Administrative Court dismissed the applicant company’s appeal. The court held: “The entirety of the evidence in the present case gives grounds to conclude that the advertisements displayed by [the applicant company] are clearly contrary to public morals, because religion, as a certain type of world view, unavoidably contributes to the moral development of the society; symbols of a religious nature occupy a significant place in the system of spiritual values of individuals and the society, and their inappropriate use demeans them [and] is contrary to universally accepted moral and ethical norms. The form of advertising [chosen by the applicant company] does not conform to good morals and to the principles of respecting the values of the Christian faith and its sacred symbols, and [the advertisements] therefore breach Article 4 § 2 (1) of the Law on Advertising. ... In its appeal [the applicant company] alleges that there are no objective grounds to find that the advertisements offended the feelings of religious people ... It must be noted that the case file includes a letter by almost one hundred religious individuals, sent to the Lithuanian Bishops Conference, expressing dissatisfaction with the advertisements in question. This refutes [the applicant company’s] arguments and they are thereby dismissed as unfounded.” 26. On 21 August 2014 the President of the Supreme Administrative Court asked that court to examine whether there were grounds for reopening the proceedings in the applicant company’s case (see paragraphs 40 and 41 below). He considered that it was necessary to assess whether the decision of 25 April 2014 (see paragraph 25 above) had adequately addressed the applicant company’s arguments related to the permissible restrictions of freedom of expression, guaranteed by the Constitution and various international legal instruments, and whether it had properly examined the necessity and proportionality of restricting that freedom, in line with the relevant case-law of the European Court of Human Rights. The President submitted that if any such shortcomings were identified, that would give grounds to believe that the Supreme Administrative Court had incorrectly applied the substantive law and that its case-law was developing in an erroneous direction. 27. On 20 November 2014 a different panel of the Supreme Administrative Court refused to reopen the proceedings in the applicant company’s case. It emphasised that proceedings which had been concluded by a final court decision could be reopened only when there had been a manifest error in the interpretation or application of the law, and not when it was merely possible to interpret that law differently. 28. The court observed that the freedom of expression, guaranteed by the Constitution, was not absolute and could be restricted (see paragraphs 31 and 42-44 below), and one of the permissible restrictions was provided in Article 4 § 2 (1) of the Law on Advertising (see paragraph 34 below). It stated that the decision of 25 April 2014 (see paragraph 25 above) had not denied the applicant company’s right to freedom of expression, but it had sought to balance that right against public morals, and the latter had been given priority. The court considered that the decision of 25 April 2014 had not denied the essence of the applicant company’s right and had not been manifestly disproportionate because the fine had been close to the minimum provided in law (see paragraph 36 below), so there were no grounds to find that the law had been interpreted or applied incorrectly. 29. The court further observed that the advertisements had had a purely commercial purpose and had not been intended to contribute to any public debate concerning religion or religious symbols. Referring to the judgments of the European Court of Human Rights in Müller and Others v. Switzerland (24 May 1988, § 35, Series A no. 133) and OttoPremingerInstitut v. Austria (20 September 1994, § 50, Series A no. 295A), it stated that it was not possible to discern throughout Europe a uniform conception of the significance of religion in society and that even within a single country such conceptions might vary; for that reason it was not possible to arrive at a comprehensive definition of what constituted a permissible interference with the exercise of the right to freedom of expression where such expression was directed against the religious feelings of others, and a certain margin of appreciation was therefore to be left to the national authorities in assessing the existence and extent of the necessity of such interference. The Supreme Administrative Court considered that the panel which had adopted the decision of 25 April 2014 had taken into account the fact that Catholicism was the religion of a very big part of the Lithuanian population and that the use of its most important symbols in the advertisements, which distorted their meaning, offended the feelings of religious people. 30. The Supreme Administrative Court thus concluded that the decision of 25 April 2014 had adequately justified the restriction of the applicant company’s freedom of expression and had correctly applied Article 4 § 2 (1) of the Law on Advertising. | 1 |
test | 001-180277 | ENG | BGR | COMMITTEE | 2,018 | CASE OF DELINA v. BULGARIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) | André Potocki;Mārtiņš Mits | 5. The applicant was born in 1938 and lives in Sofia. 6. The Sofia Municipal Council approved the exchange of a municipal flat for a smaller flat owned and occupied by the applicant in December 2005. However, the mayor of Sofia did not issue the necessary order and did not sign a contract for the exchange, as provided in the applicable rules. The applicant brought judicial review proceedings challenging the mayor’s tacit refusal to act. The Sofia Administrative Court quashed the mayor’s tacit refusal in a judgment of 1 April 2010 and instructed the mayor to issue an order for the exchange of the flats. That part of the judgment became final and enforceable on 19 May 2010. 7. By a decision of 25 March 2010 the Sofia Municipal Council revoked its December 2005 decision approving the exchange of the two properties. The applicant lodged a challenge against that 25 March 2010 decision. In a final judgment of 7 March 2011 the Supreme Administrative Court declared the Council’s decision of 25 March 2010 null and void. 8. On 18 April 2011 the mayor issued a decision explicitly refusing to issue an order for the exchange of the two flats. Following an application by the applicant for judicial review, on 30 March 2012 the Supreme Administrative Court declared that decision null and void as having been issued in breach of the judgment of the Sofia Administrative Court of 1 April 2010. The court also instructed the mayor to issue an order for the conclusion of the exchange agreement. 9. The mayor ordered the flat exchange on 6 March 2013 and the applicant signed a contract for the exchange on 25 June 2013. | 1 |
test | 001-177650 | ENG | MDA;RUS | CHAMBER | 2,017 | CASE OF BRAGA v. THE REPUBLIC OF MOLDOVA AND RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (Russia);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (the Republic of Moldova);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Russia);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application) (the Republic of Moldova) | Dmitry Dedov;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano | 5. The applicant was born in 1971 and lives in Râbniţa. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 28 July 1999, the applicant was arrested in Râbniţa by virtue of a decision of a prosecutor from the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”; for further details about the “MRT”, see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004VII, and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 8-42, ECHR 2012 (extracts)). He was charged with fraud and incitement to bribery. 8. On 17 May 2000, the Camenca District Court, which was under the jurisdiction of the “MRT”, convicted the applicant and sentenced him to five years’ imprisonment. According to the applicant, he appealed, but his appeal was rejected by the “MRT” Supreme Court on an unspecified date. 9. The applicant initially served his sentence in Tiraspol Prison no. 2. On 25 October 2001, he was transferred to Pruncul Prison Hospital, which was under the control of the Moldovan authorities. On 30 October 2001, he signed a form of authority authorising the Chişinău-based non-governmental organisation Lawyers for Human Rights (LHR) to represent him before this Court. That form of authority, together with the application form, reached the Court on 19 November 2001. 10. On 20 November 2001, a lawyer from LHR informed the Moldovan Prosecutor General’s Office that the applicant and seven other people were being held in Pruncul Prison Hospital on the basis that they had been convicted by “MRT” courts. He asked for their immediate release, in view of the fact that they had been convicted by unlawful courts. He also submitted that some of those eight detainees had already lodged applications with the Court, and that a failure to immediately release them or any attempt to transfer them back to the “MRT” authorities would result in the Republic of Moldova incurring responsibility. A similar letter was sent on the same day to the Minister of Justice. 11. On 21 November 2001, members of LHR organised a press conference,’s Office on the previous day. 12. Also on 21 November 2001, all eight detainees, including the applicant, were allegedly transferred back to “MRT” prisons. 13. On 23 November 2001, LHR informed the media of the detainees’ transfer back to the “MRT” authorities on 21 November 2001. 14. On 26 November 2001, the Head of the Penal Institutions Department of the Ministry of Justice informed LHR that the detainees mentioned in their request of 20 November 2001 were not being held at Pruncul Prison Hospital. 15. On 7 December 2001, the lawyer from LHR wrote to the “MRT” Ministry of Justice, asking for permission to see the applicant and stating that he was planning to lodge in the applicant’s name an application before the Court. He never received a reply to that letter. 16. On 22 January 2002, the applicant was released from prison on the basis of an amnesty act. 17. The applicant described the conditions of his detention in the “MRT” in the following manner. He was allegedly detained in a cell with several people suffering from tuberculosis, and risked contracting that disease himself. During his detention in Tiraspol Prison no. 2, approximately 100 detainees there died of tuberculosis. He was also affected by parasitic insects. The applicant is a person with a category 3 disability, but he was not given any medication during his detention. Food was served only once a day and was of very poor quality. | 1 |
test | 001-163344 | ENG | LTU | CHAMBER | 2,016 | CASE OF A.N. v. LITHUANIA | 2 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations;Fair hearing;Adversarial trial);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Iulia Motoc;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1971 and lives in Naujoji Akmenė. 6. In November 1989 he started military service in the armed forces of the Soviet Union. Medical records dated 20 June 1990 drafted by a panel of doctors in his military unit in Riazan (Russia), stipulated that at that time he had problems communicating with others and was autistic, though he had a normal memory and level of intelligence. He was diagnosed with sluggish schizophrenia, which he had developed during military service. On those grounds, he was released from military service. 7. Having returned from the army to Lithuania, by 2005 he had been treated in psychiatric institutions no less than fifteen times. In 2004 he was diagnosed with residual and then paranoid schizophrenia. 8. In February 2006 the applicant attempted suicide by setting himself on fire. He was admitted to the trauma unit of a hospital. 9. In reply to a prosecutor’s request for information, on 14 November 2006 the Akmenė District Psychiatric Health Centre (Akmenės rajono psichikos sveikatos centras) confirmed that the applicant had been attending there since 1999, and continued to be treated there for schizophrenia. In 2004 episodes of the applicant’s illness became more frequent. That year the applicant attempted to commit suicide; he did not accept that he was ill. He was admitted to the Šiauliai Psychiatric Hospital (Šiaulių psichiatrijos ligoninė), where he spent about a month before being released for outpatient care at his own request. Since July 2005 the applicant stopped attending the Akmenė District Psychiatric Health Centre and taking his medication, because he firmly refused any consultations with the psychiatrists. He would also submit numerous complaints to various authorities. 10. On 24 November 2006 the applicant’s mother asked a prosecutor to initiate proceedings with a view to her son being declared legally incapacitated. According to her, his mental illness started when he was in the Soviet army. She and her husband lived in a house separate from him in neighbouring Akmenė. By 2006 the applicant’s condition reached such a stage that he was afraid to leave his apartment or let his parents in, and he did not take care of himself. He even attempted to take his own life by setting himself on fire. 11. On the same day, the prosecutor sent the request by the applicant’s mother to the Akmenė District Court, together with an extract from the applicant’s medical records. It was noted that his schizophrenia had worsened and that he had become a danger to himself. He was thus in need of help from others. It was indispensable to ascertain whether there was a basis for declaring him legally incapable, if psychiatrists established that he could not understand or control his actions. The prosecutor relied on Articles 2.10, 3.242 § 1 and 3 of the Civil Code, Articles 135, 462-465, 491493 of the Code of Civil Procedure, and Article 19 of the Law on Prosecution Service. 12. By a ruling of 29 November 2006 the Akmenė District Court ordered an expert examination to ascertain (i) whether the applicant was suffering from mental illness, (ii) whether he could understand his actions and (iii) whether he could take part in court proceedings. His mother was to be informed of that decision. 13. Having examined the applicant in person and scrutinised his medical records, on 8 January 2007 a psychiatrist concluded that he suffered from paranoid schizophrenia. He was also very mistrusting and had strong feelings of persecution. Psychiatrists took into account the letters by his mother to the Akmenė District Psychiatric Health Centre and the prosecutor to the effect that the applicant did not take care of his daily needs, and had social and health issues and suicidal thoughts. The psychiatrist thus established that the applicant could not correctly understand or control his actions, and noted that he “could not take part in court proceedings, could not be questioned, and court documents could not be served on him”. 14. In a one page form sent to the Akmenė District Court on 29 January 2007, Akmenė District social services ticked a box to say that they “agreed” with the prosecutor’s request for the applicant to be declared incapacitated. They also indicated that they would not take part in the court hearing, which was scheduled for 31 January 2007. 15. On 23, 24, 25 and 30 January 2007 attempts were made by the Akmenė District Court to personally serve the applicant with the summons concerning the forthcoming hearing for his legal incapacitation and care. The copy of the summons indicated that it had not been served because, according to his next door neighbour, the applicant was mentally ill and opened the door to no one. 16. At a public hearing on 31 January 2007 the Akmenė District Court, relying on Articles 465-468 of the Code of Civil Procedure, granted the prosecutor’s request for the applicant to be declared incapacitated, on the grounds that he could not understand or control his actions. The prosecutor and the applicant’s mother were in attendance. The applicant’s mother testified about her son’s history of mental illness. She also stated that he had recently been living away from his parents, but could not take care of himself, did not pay maintenance fees for his apartment, and would not go out or take his medication. The ruling stipulated that it could be appealed against within thirty days. 17. The Government submitted that, given the fact that it had not actually been possible to serve the summons on the applicant, the decision of 31 January 2007 had only been sent to the interested parties in the case, that is to say the applicant’s mother, the prosecutor and social services. 18. On 5 February 2007 the applicant drafted what appears to be a response to the prosecutor’s request of 24 November 2006 to incapacitate him. Therein he mentions that he received a copy of the prosecutor’s request on 30 January 2007. The letter appears essentially to be a complaint about his treatment in psychiatric hospitals and diagnosis with schizophrenia. He concludes by stating that because of obvious forgery of his medical examination results and clear bias on the part of the prosecutor, the applicant refused to undergo medical examination in Lithuania. A stamp on the letter indicates that it was received by the Akmenė District Court on 5 February 2007. 19. Having established that the applicant was legally incapacitated, by a ruling of 6 March 2007 the Akmenė District Court appointed the applicant’s mother as his guardian and the administrator of his property. The decision was taken at a public hearing in which she, a prosecutor and a representative from social services took part. The ruling stipulated that the applicant had not taken part because of ill-health. 20. The applicant was forcibly admitted to the Šiauliai Psychiatric Hospital on 9 March 2007, after showing signs of agitation and behaving aggressively towards his parents. The police and some firemen had to break down the door of his apartment to get to him. On 11 March 2007 he consented to treatment until 13 March 2007, when he refused any further treatment in writing. 21. On 13 March 2007 the Šiauliai Psychiatric Hospital asked the State Guaranteed Legal Aid Service (“the Legal Aid Service”) to provide legal aid to the applicant, who was to be forcibly hospitalised. It was granted the same day, and a lawyer was appointed to represent him. Later that day, in the presence of a psychiatrist and the appointed lawyer, the Šiauliai District Court granted a request by the psychiatric hospital for the applicant to be forcibly hospitalised. The court noted that the applicant was absolutely uncritical of his own behaviour, and that his state of mind at that time meant that he posed a danger to himself and others. The ruling was final and not appealable. It indicated that on 31 January 2007 the applicant had been declared legally incapacitated, and that on 6 March 2007 his mother had been appointed as his guardian. 22. The Government submitted to the court an extract from the applicant’s medical records, which indicated that he had been at the Šiauliai Psychiatric Hospital from 9 March until 22 June 2007. The doctor indicated in that record that a copy of the court ruling of 13 March 2007 had been given to the applicant. It is not clear when that was done. The Government submitted that the court decision of 13 March 2007 had been handed to the applicant by his treating doctor on 15 March 2007. 23. On 6 April 2007 the applicant signed a document certifying that his treatment plan from the Šiauliai Psychiatric Hospital had been explained to him and that he agreed to follow it. 24. Having been released from the psychiatric hospital, on 26 November 2008 the applicant approached the Legal Aid Service. In his application he wrote that by a ruling of 31 January 2007 he had been declared legally incapacitated, and that he would need the time-limit for appealing against it to be renewed. He also indicated that in March 2007 his mother had been appointed his guardian and the administrator of his property. He noted that he had not known about the two decisions until 9 March 2007, upon his admission to the Šiauliai Psychiatric Hospital. He also expressed a wish to appeal against them. 25. On 31 December 2008 the Legal Aid Service refused the request as having no prospect of success. It noted that the applicant fell into the category of people entitled to legal aid; however, given that the proceedings for his incapacitation had been terminated, his request for legal aid was clearly irrelevant. 26. The Legal Aid Service noted that the decisions the applicant wished to challenge had been taken in January and March 2007. Given that he had not requested legal aid until 28 November 2008, he had missed the deadline for appeal against those decisions. Representing him in such proceedings would have had no prospect of success. 27. As to the appointment of the applicant’s mother as his legal guardian, the Legal Aid Service indicated that he had given no grounds for doubting her ability to perform her duties as guardian and the administrator of his property. Lastly, it observed that guardianship could be revoked at the request of a prosecutor or social services. Given that the applicant himself could not apply to the court with such a request, there was no legal basis for providing him legal assistance. 28. On 15 December 2008 the applicant requested that the Akmenė District Court give him a copy of the court rulings regarding his incapacitation and the appointment of his legal guardian. 29. On 16 December 2008 a judge of the Akmenė District Court wrote to the applicant informing him that those court rulings would not be given to him, because his mother had been appointed as his legal guardian and the administrator of his property. 30. In their observations on the admissibility and merits of the case, sent to the Court on 2 May 2012, the Government noted that at that time the applicant had lived separately in his own apartment. He had been unemployed but had received disability pension. His guardian had helped him with daily chores. He had also received regular outpatient treatment at the Akmenė District Psychiatric Health Centre. 31. On 13 August 2014 the applicant complained to the Šiauliai prosecutor’s office that in 2004 he had been forcibly admitted to the Šiauliai Psychiatric Hospital and made to undergo medical treatment. The applicant asked that a pre-trial investigation be opened regarding his allegations. 32. By a final ruling of 11 November 2014, the Šiauliai Regional Court held that the applicant’s complaints about events in 2004 were unfounded. | 1 |
test | 001-174616 | ENG | LTU | CHAMBER | 2,017 | CASE OF LEKAVIČIENĖ v. LITHUANIA | 3 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano | 5. The applicant was born in 1942 and lives in Vilnius. 6. On 27 September 1996 the applicant was admitted to the Bar. She signed an oath “to be faithful to the Republic of Lithuania, to observe its Constitution and laws, to honestly perform her duties as an advocate (a lawyer who has been admitted to the Bar (advokatas)), to observe moral norms, citizen’s rights and freedoms, and to protect professional secrets”. A couple of months later the applicant registered a law office in her name, and started practising law. 7. At the applicant’s request her name was taken of the list of practising advocates on 19 December 2003. As noted by the civil courts afterwards, the applicant had acknowledged that her request had been made owing to the fact that a criminal case had been pending against her (see paragraph 8 below). 8. On 13 August 2004 the applicant was found guilty of forgery of documents (Article 300 § 1 of the Criminal Code) and fraud (Article 182 § 1 of the Criminal Code). The court established that while pursuing her professional practice, the applicant had on more than thirty occasions falsely claimed in writing that she had provided legal services within the framework of the State-paid legal-aid scheme. In addition, the court found that the applicant had forged the signatures of pre-trial-investigation officers on the above documents, submitted them to court officials to receive payment and thereby obtained payment. The crimes she had committed fell into the category of minor intentional crimes (nesunkus tyčinis nusikaltimas), because the maximum possible sanction for them was up to three years of deprivation of liberty (Article 11 § 3 of the Criminal Code). In the applicant’s case, as a sanction, she was ordered to pay a fine, which she did on 24 August 2004. Her conviction expired three years after she had paid the fine, that is to say on 24 August 2007. 9. On 12 September 2007 the applicant asked the Bar Association to readmit her to the Bar. 10. On 20 September 2007 the Bar Association refused the applicant’s request, inter alia, on the grounds that the applicant did not have high moral character (nepriekaištinga reputacija). Given that only three years and twenty-four days had passed since the applicant’s conviction, and taking into account the nature of the applicant’s criminal offence – misappropriation of property for non-existent legal services – as well as the specifics of the professional practice of an advocate, it was reasonable to conclude that the applicant had not regained high moral character within such a short time frame, to meet the requirements set out in Articles 7 § 4 and 8 § 4 of the Law on the Bar (see paragraph 21 below). 11. The applicant challenged this decision before the Vilnius Regional Court. On 25 April 2008 the court heard the applicant’s case. Six witnesses were questioned in court as to the applicant’s reputation; most of them testified to having known the applicant before 1996, when she had been working at the Ministry of Justice. The court partly annulled the Bar Association’s decision and ordered the latter to reconsider the applicant’s request to be readmitted to the Bar. The court noted that the applicant had been convicted of a minor intentional crime. On the day when the applicant had submitted the request to be readmitted to the Bar, her conviction had expired. Consequently, and relying on Article 8 (1) of the Law on the Bar (see paragraph 21 below), the Vilnius Regional Court found that the Bar Association had erred in finding that the applicant had not met the high-moral-character criterion. 12. The Bar Association appealed. It pointed out that the applicant was not of high moral character as she failed to meet the criteria listed in Article 8 (4) of the Law on the Bar. Refusal to readmit the applicant to the Bar had been based on an evaluation of the nature of actions for which she had been convicted. 13. In her defence, the applicant submitted to the appellate court a character reference from a managing director of a private company, where the applicant had worked as marketing director. The reference stated that the applicant performed her duties well; and that she was responsible and had a sense of initiative. As shown from the summary of her arguments by the Court of Appeal, the applicant did not plead that reputation related restrictions on her practising law as an advocate had been more severe than those applied to other law-related professions. 14. On 7 October 2008 the Court of Appeal allowed the Bar Association’s appeal and quashed the first-instance court’s decision. As to the question of high moral character, the Court of Appeal underlined that higher standards were applicable to advocates, as only persons of untainted reputation could participate in the justice system without discrediting it. Therefore, when evaluating an advocate’s conduct it was not sufficient to have regard only to whether the person obeyed the law. It was also pertinent to see a person’s behaviour in the context of the legal norms that regulate the ethics of the advocates’ profession. In this connection the Lithuanian Code of Professional Ethics for Advocates underlined that an advocate should observe legal and moral duties (point 1.2.), should not discredit advocate’s name, the oath he or she swore or the ideal of justice (point 1.3.). An advocate also had duties set out in the Constitution, the Law on the Bar and the Lithuanian Code of Professional Ethics for Advocates (point 2.2) (see paragraph 23 below). 15. The Court of Appeal concurred with the first-instance court’s finding that the term of the applicant’s conviction had expired and that therefore she could not be reproached under Article 8 (1) of the Law on the Bar. Nonetheless, taking into account the fact that she had committed the criminal offence in the course of her professional practice and that her professional practice had been aimed at committing crimes, of which there were more than thirty counts, it was reasonable to conclude that the applicant’s behaviour did not meet the criteria set out in Article 8 (4) of the Law on the Bar. That the conviction had expired did not mean ipso facto that the applicant had regained an irreproachable reputation within the meaning of Article 8 (4) of that Law. For the appellate court, insufficient time had passed from the date when the applicant had committed the crime to when she had asked the Bar Association to readmit her to the Bar. 16. The appellate court also noted that a person could submit a request to be admitted to the Bar and to prove that he or she had regained high moral character. However, it was then for the court to establish, of its own motion, whether sufficient time had passed for a person’s rehabilitation to be objectively validated. A person who claimed to have regained high moral character should bring clear and persuasive evidence that he or she had been following the ethical and disciplinary rules. It was then for the court to examine what the nature of the infringements of law was, what personal situation had led to the infringements being committed, and whether those factors still applied. In the present case, despite four years having passed since the date the crime had been committed, there was still no sufficient basis to conclude that the applicant was of high moral character within the meaning of Article 8 (4) of the Law on the Bar. 17. The Court of Appeal lastly dismissed certain arguments by the applicant that the lower court had erred when interpreting some other legal norms unrelated to the matter of the applicant’s reputation. 18. The applicant lodged an appeal on points of law. She raised a number of arguments about the Bar qualification exam and professional reputation, without maintaining that the criminal conviction had placed her in a worse situation than representatives of other law-related professions. 19. By a ruling of 23 February 2009 the Supreme Court dismissed the applicant’s appeal on points of law, and left the Court of Appeal decision unchanged. On the question of reputation, the Supreme Court noted its practice to the effect that no breach of law (joks nusižengimas) was too serious to unconditionally preclude an individual from ever asking to be reinstated to the Bar (the Supreme Court referred to its earlier ruling in case no. 3K-7-168/2001 of 9 January 2001, see paragraph 30 below). 20. The Supreme Court then held that the expiry of a conviction for a minor intentional crime, as it was indicated in Article 8 (1) of the Law on the Bar, was only one of the criteria when considering the question of a person’s reputation. Moreover, Article 8 (4) of that Law read that a person should meet the criteria of ethics applicable to advocates. Under point 1 of the Code of Professional Ethics for Advocates, advocates were involved in the implementation of justice. The professional practice of an advocate required him or her to carry out his or her duties and obligations towards clients, the courts, the advocate’s profession and society. Moreover, an advocate should never discredit the name of the profession, the oath he or she swore and the ideal of justice. On the facts of the applicant’s case, the Court of Appeal therefore had been correct in finding that the applicant had not proven that she had regained high moral character, in particular given the nature of the criminal acts she had committed. | 0 |
test | 001-178861 | ENG | UKR | COMMITTEE | 2,017 | CASE OF KONDRAKHIN AND OTHERS v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country) | André Potocki;Mārtiņš Mits;Síofra O’Leary | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. In applications nos. 2887/05, 68256/12 and 66389/16, the applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-155711 | ENG | ROU | CHAMBER | 2,015 | CASE OF SERCE v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 5. The applicant was born in 1966 and is currently being detained in Giurgiu Prison. He is married and has four children. His wife resides in Turkey together with their children. 6. On 28 June 2005 the Bucharest County Court convicted the applicant of aggravated murder and sentenced him to eighteen years’ imprisonment. The Bucharest County Court also decided that the applicant would be deported to Turkey at the end of his prison term. 7. In his letters to the Court, which he began sending on 15 July 2008, the applicant complained of the inhuman conditions in which he was being detained, first in Rahova Prison and then in Giurgiu Prison. He described a severe lack of hygiene in both prisons, with insufficient cleaning and personal hygiene products being provided by the prison authorities. He alleged that he could not sleep at night because of bed bugs. He also complained that the food was not adapted to his diabetes. 8. The applicant further alleged that throughout his detention in both prisons he had not been included in any educational activities and had not been allowed to do any work. He had thus been unable to integrate, to be re-educated or to have the term of his prison sentence reduced. 9. In 2008 the applicant was diagnosed with type II diabetes and a sleep disorder. 10. In Rahova Prison the applicant was detained in cells measuring 21 sq. m, which he shared with seven other prisoners (2.62 sq. m of personal space). The cells contained eight beds, a window measuring 1.2 by 1.2 m and their own bathroom with a shower, a sink and a toilet. Cold water was always available and hot water was available twice per week. Heating was provided during the winter up to a maximum temperature of 18oC. 11. The Government submitted that, whenever the presence of bugs was noticed, disinfection operations took place without delay. They submitted documents showing that disinfection had been performed two or three times per year in 2005, 2007 and 2008 in the cells occupied by the applicant in Rahova Prison. 12. The food provided to the applicant was adequate and adapted to his diabetes by substituting pork with beef. 13. The applicant participated in educational and recreational activities whenever necessary. The Government further indicated that the applicant’s reduced participation in the above-mentioned activities was due to his state of health. 14. The Government submitted that on 17 January 2009 the applicant had been transferred to Giurgiu Prison where he was currently being held in a cell measuring 21.47 sq. m together with five other prisoners (3.57 sq. m of personal space). The cell contained six beds, three bedside tables, one bench, one table and a box for shoes. It had a window measuring 1.5 by 1.8 m and a bathroom with a shower, a sink and a toilet. During the winter, a temperature of 19oC was ensured in all the cells. Hot water was provided twice per week. 15. With respect to the prisoners’ personal hygiene, once per month the prison administration provided each prisoner with two bars of soap, one tube of toothpaste, one tooth brush, one tube of shaving cream, one razor, and toilet paper. Concerning the hygiene in the cell, the Government submitted that prisoners were responsible for cleaning the cells and were provided with cleaning products by the prison administration. Regular disinfection was conducted once every three months. 16. The applicant received a menu adapted for his diabetes, which included 125 grams of meat per day. 17. With respect to activities in Giurgiu Prison, the Government submitted that in December 2011 the applicant had watched a folk music concert and in December 2012 he had taken part in a discussion on religious themes conducted by the orthodox priest. Also, once in 2013 and once in 2014 the applicant had taken part in a quiz on Romanian history. 18. In 2007 the applicant lodged a request with the Romanian Ministry of Justice based on the provisions of the Convention between Romania and Turkey on the transfer of convicted persons, seeking to serve the rest of his sentence in a Turkish prison. According to the applicant, he wanted the transfer in order to be closer to his family, who lived in a Turkish village in humble conditions and did not have the means to travel to Romania. 19. The Romanian Ministry of Justice acted on the applicant’s request and initiated the transfer proceedings. As a result, on 5 June 2007 the Ankara District Court acknowledged the judgment of the Romanian court which had convicted the applicant and decided that the rest of the applicant’s sentence should be served in Turkey. 20. On 4 February 2008 the applicant’s transfer request was brought before the Bucharest Court of Appeal. The applicant claimed before the court that such a transfer would be in accordance with the convention signed between Romania and Turkey and would allow him to see his children and to receive visits from his family, who would provide him with adequate food and treatment for his diabetes. 21. In a judgment of 4 April 2008 the Bucharest Court of Appeal rejected the applicant’s transfer request, on the ground that Turkey had less severe legal provisions on conditional release, which might lead to the applicant’s release in a shorter period of time. The punitive and educational purpose of his sentence would thus fail to be achieved. 22. On 15 December 2011 the Bucharest Court of Appeal rejected with the same reasoning a new transfer request lodged by the applicant. | 1 |
test | 001-158944 | ENG | RUS | CHAMBER | 2,015 | CASE OF SAZANOV v. RUSSIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal) | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 5. The applicant was born in 1959 and is currently serving a prison sentence in the Nizhniy Novgorod Region. 6. On 27 April 1990 the applicant was convicted of threatening to murder, hooliganism, robbery, rape and murder under Articles 207, 206 § 2, 146 § 2, 117 § 4 and 102 of the Criminal Code of the RSFSR (the Russian Soviet Federative Socialist Republic) and sentenced to death. 7. On 5 June 1990 the Supreme Court of Russia upheld the above judgment on appeal, having amended the legal qualification of the charge of murder under Article 102 of the Criminal Code of the RSFSR. 8. On 14 September 1991, by virtue of Presidential decree no. 81/14090, the death penalty was replaced by twenty years’ imprisonment. 9. In 1997–2008 the domestic courts, at three levels of jurisdiction and on several occasions, brought the legal qualification of the crimes of which the applicant had been convicted into line with the newly enacted Criminal Code of the Russian Federation (Federal Law no. 63-FZ of 13 June 1996) and its subsequent amendment (Federal Law no. 162-FZ of 8 December 2003). On each occasion the final sentence – twenty years’ imprisonment – remained unaltered. 10. The last decision in this connection was taken by the Supreme Court of Russia on 26 June 2008. 11. On 27 February 2004 new criminal proceedings were instituted against the applicant on suspicion of murder. 12. Police officers allegedly intimidated the applicant and forced him to confess. The applicant alleged that he was subsequently forced to confirm a self-incriminating statement in the presence of legal-aid counsel. 13. The applicant did not complain about the alleged ill-treatment, because he considered such a remedy ineffective. 14. On 29 February 2004 the applicant’s custody was changed to detention on remand pending trial. 15. On 27 May 2004 the pre-trial investigation was completed and the case was sent to the Chelyabinsk Leninskiy District Court for trial. 16. According to the applicant, at the court hearing of 26 July 2004, while questioning witness M. and victims T. and P., the trial judge P. three times read out an extract from the judgment of 27 April 1990 relating to the applicant’s previous conviction for murder. 17. According to the Government, the reading out of the 1990 judgment against the applicant was done only once, on 23 August 2004, at the stage of the examination of the case file at the request of the prosecutor during the determination of the term of the applicant’s sentence, and the defence raised no objections. 18. At the court hearings of 23 August 2004 and 2 September 2004 the applicant asked the court to obtain the attendance of an expert whom he wished to question. His requests were refused by the court. 19. On 23 August and 25 October 2004 the applicant sought the withdrawal of the judge, without success. In dismissing the applicant’s request for the withdrawal of the trial judge on 23 August 2004 the court indicated that the partial announcement of the applicant’s unspent conviction of 1990 did not constitute a predisposition of the court to deliver a finding of guilt, but served the purpose of full and comprehensive examination of the applicant’s personality as he had earlier been convicted of an analogous crime – premeditated murder. In dismissing the applicant’s challenge of 25 October 2004 the court indicated that the applicant had failed to provide justification for his application for the withdrawal of the judge. 20. On 29 November 2004 the Chelyabinsk Leninskiy District Court convicted the applicant of threatening murder, bodily harm, murder, and destruction of property, and sentenced him to twenty years’ imprisonment, taking into account that the applicant had not fully served the sentence handed down on 27 April 1990. 21. The applicant appealed, claiming in particular that the court which convicted him had been biased and predisposed to deliver a finding of guilt. The applicant referred to the fact that while questioning witness M. and victims T. and P. the judge had read out extracts from his conviction of 27 April 1990, thus “creating an atmosphere of guilt”. He further indicated that he had challenged the judge in view of his attitude, although to no avail, and deplored the fact that the transcript of the trial omitted to mention the judge’s reading out of the judgment of 1990. 22. On 21 February 2005 the Chelyabinsk Regional Court upheld the judgment of 29 November 2004 on appeal. As regards the applicant’s complaint relating to the alleged bias of the trial judge, the Regional Court held as follows: “The [applicant’s] arguments concerning bias on the part of the [trial] court – its predetermination to deliver a finding of guilt, the selective record of the course of the trial, and the violation of his rights by the reading out of the judgment of 27 April 1990 – had been addressed during the trial and had been reasonably dismissed as unsubstantiated. The transcript of the trial complies with Article 259 of the Code of Criminal Procedure of the Russian Federation ... The [applicant’s] conviction of 27 April 1990 had not been expunged, therefore the reading out of the judgment [in question] cannot be regarded as having breached [his] rights.” | 0 |
test | 001-141933 | ENG | ALB | COMMITTEE | 2,014 | CASE OF MEMISHAJ v. ALBANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney | 4. The applicant was born in 1944 and lives in Tirana. 5. On 10 December 2001 the applicant, who worked as an accountant for the Tirana City Hall, was dismissed. The dismissal took effect on 11 January 2002. 6. On 6 February 2002, following the applicant’s action against his dismissal, the Civil Service Commission (“CSC”) quashed the dismissal decision and ordered his employer to reinstate him. By final decision of 8 May 2003, the Supreme Court upheld the CSC decision. On 10 March 2006 the applicant was offered employment by the Tirana City Hall (see paragraph 11 below). 7. On 15 May 2003 the Tirana District Court supplemented the CSC’s decision by ordering the Tirana City Hall to pay the applicant’s salary for the period between 10 December 2001 and the date of reinstatement. The employer’s request for revision was dismissed on 10 October 2003. 8. On 4 June 2003 an enforcement writ was issued in respect of both decisions. 9. On 31 March 2006 the Constitutional Court, following a constitutional complaint by the applicant, acknowledged that there had been a breach of the applicant’s right of access to court on account of the non-enforcement of the Supreme Court’s decision. However, it made no award. 10. On 1 March 2006 the applicant took up employment with the Ministry of Tourism, Culture, Youth and Sports (“the Ministry”). 11. On 10 March 2006 the Tirana City Hall appointed the applicant to a position in a maintenance company, which was responsible to the Tirana City Hall. The applicant challenged the appointment. 12. On 15 May 2006 the CSC quashed the appointment decision. The CSC decision became final, none of the parties having appealed against it. 13. In 2004 and 2006 the applicant successfully sought the payment of accrued interest arising from the delay in the payment of his salary. 14. On 9 April 2008, following a third action by the applicant, the Tirana District Court found in the applicant’s favour and ordered the Tirana City Hall to pay the applicant ALL 774,076 in salary arrears and ALL 105,258 in accrued interest. The court reasoned that, since the applicant had taken up employment with the Ministry on 1 March 2006, the Tirana City Hall was obliged to pay him salary arrears for the period from 11 January 2002 (see paragraph 5 above) to 28 February 2006. That obligation had ceased to exist ipso lege as of 1 March 2006. Relying on an expert’s report, the court found that the applicant’s salary arrears for the period from 11 January 2002 to 28 February 2006 amounted to ALL 1,720,261, of which ALL 946,185 had been paid by the Tirana City Hall. The accrued interest for the corresponding period amounted to ALL 105,258. 15. On 11 November 2009 an enforcement writ was issued. 16. On 12 February 2010 it would appear that the Tirana District Court’s decision became final, the Supreme Court having dismissed the defendant’s appeal. 17. On 31 March 2010 the Tirana City Hall paid the salary arrears. There is no information in the case file concerning the payment of accrued interest. 18. On an unspecified date in 2010 the applicant lodged a fourth civil action seeking the payment of accrued interest for the period between 9 April 2008 and 31 March 2010 and the payment of social security contributions by the Tirana City Hall. 19. On 30 June 2010 the Tirana District Court found in his favour and ordered the Tirana City Hall to pay accrued interest as a result of the delay in payment of the salary arrears from 9 April 2008 to 31 March 2010 and social security contributions on the basis of the applicant’s indexed salary. No quantification of the amount was made. 20. On 8 July and 23 December 2011 the Court of Appeal and the Supreme Court, respectively, upheld the Tirana District Court’s decision. 21. The relevant domestic law and practice has been described in the cases of Qufaj Co. Sh.p.k. v. Albania (no. 54268/00, §§ 21-26, 18 November 2004) and Gjyli v. Albania (no. 32907/07, §§ 19-28, 29 September 2009). | 1 |
test | 001-148641 | ENG | DEU | CHAMBER | 2,014 | CASE OF SCHOLER v. GERMANY | 4 | 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 - Fair hearing) | Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1964. When lodging his application, he was detained in Saarbrücken Prison. 6. In July 2007 the Zweibrücken Public Prosecutor’s Office was informed by a person, to whom they had guaranteed confidentiality and whose identity had remained unknown throughout the proceedings, that the applicant was selling large amounts of amphetamine. 7. The Trier police therefore mandated another police informer, S., who was equally guaranteed confidentiality by the Zweibrücken Public Prosecutor’s Office and was supervised by police officer K., to test the veracity of these allegations. S. visited the applicant in his motorbike shop on 18 July 2007 and pretended being interested in buying a motorbike. He visited the applicant in the shop for the second time on 14 August 2007. On that occasion, the applicant told S. that a former member of his motorbike club “Bandidos” had cheated the club and offered S. 1,000 euros (EUR) if he would beat up that person. When the applicant showed S., who had disclosed his acquaintance with arms, his firearms and asked S. whether he could supply him with weapons, S. asked the applicant whether he could sell him amphetamine. The applicant asked in reply how much S. would need and what price he would be ready to pay. S. offered to pay EUR 4,000 per kilogram of amphetamine of a good quality. The applicant agreed to the offer and handed over to S. a sample of amphetamine which he had stored in a drawer of his garage. On 24 August 2007 S. again visited the applicant and offered purchasing 500 grams of amphetamine from the applicant, in accordance with the instructions from his supervising police officer. The applicant agreed to sell that amount of drugs at a price of EUR 2,000. He had carried a loaded revolver during all of his meetings with S. and had threatened S. with the revolver once, accusing him of being a traitor. 8. On 27 August 2007 the Trier District Court authorised the participation of an undercover police officer, C., supervised by police officer L., in the operation. 9. On 28 August 2007 S. bought 500 grams of amphetamine for EUR 2,000 from the applicant, who carried a loaded revolver during the transactions, handed it over to C. who was awaiting him at a different place and brought the money supplied by C. to the applicant. 10. On 20 September 2007 S. again visited the applicant in his garage and told him that he would like to buy further drugs from him. The applicant thereupon asked S. whether he would need one kilogram or more. S. ordered 500 grams of amphetamine, in accordance with his instructions from police officer K., and announced that he would need higher amounts of drugs in the future. The applicant agreed to the proposals. 11. On 4 October 2007 S. again bought 500 grams of amphetamine for EUR 2,000 in the presence of C. from the applicant, who carried a loaded revolver during the transaction. As advised by police officer K., S. then asked the applicant to supply a larger amount of drugs. The applicant explained that he could supply as much as S. wanted, five or ten kilograms. S. thereupon ordered 6.5 kilograms of amphetamine for which he was to pay EUR 26,000. 12. On 16 October 2007 S. and C. bought the amount of amphetamine ordered from the applicant; the drugs were supplied by B. The applicant was arrested after having handed over the drugs to S. and while collecting the money from C. The police further seized 10 grams of amphetamine in the applicant’s flat and numerous guns in his garage. 13. B., having been informed of his right to remain silent, confirmed to the police after his arrest and subsequently before the investigating judge that he had participated in the drug transaction on 16 October 2007 and supplied the amphetamine seized on that day. 14. On 31 July 2008 the Trier Regional Court convicted the applicant of two counts of drug trafficking in not insignificant amounts while carrying a weapon and another count of drug trafficking in not insignificant amounts and sentenced him to five years and six months’ imprisonment. 15. The Regional Court established the facts as summarized above (see paragraphs 6-13 above). It further took note of the fact that the applicant, a full member of the motorbike club “MC Bandidos Chapter Kaiserslautern”, had previously been convicted, in particular, by the Trier Regional Court of trafficking in drugs (amphetamine) on 9 February 1989 and sentenced to three years and ten months’ imprisonment. 16. The Regional Court observed that the applicant and his co-accused B. had not made any submissions on the drug charges during the trial hearing. Its findings of fact were based on the credible statements made by S. to his supervising police officer K. and, in respect of the last offence, on the confession made by co-accused B. during the investigation proceedings. 17. In the hearing, the Regional Court, having rejected the applicant’s objection to hearing police officer K. as a witness, had questioned K. as a witness giving hearsay evidence on the observations made by police informer S. It had not been possible to summon and question S. in person as the Rhineland-Palatinate Ministry for the Interior had issued a declaration dated 10 April 2008, supplemented on 21 July 2008 following the trial court’s proposal of alternative methods of questioning, blocking the disclosure of his identity (Sperrerklärung). These declarations, running to twelve and four pages respectively, had been read out in the hearing. 18. The Ministry had argued in these declarations that it was necessary to keep the identities of police informer S., and also of undercover police officer C., secret in order to protect their life and limb and that of their relatives. In the Ministry’s submission, there was a high risk that the applicant would organise a violent revenge against them. He was a member of the motorbike club “MC Bandidos, Chapter Kaiserslautern”, which was well-organised worldwide and known for violent, ruthless acts against persons considered as traitors. Members of the motorbike club were currently suspected of involvement in homicides. The applicant, on whose premises a considerable number of firearms had been found, had himself offered S. EUR 1,000 for assaulting a former member of the motorbike club who was suspected of having deceived the club in the course of business transactions. Further perpetrators who had been involved in the drug deal might equally possess firearms and had not been arrested yet. The disclosure of the identity of the police informer and of the well-trained undercover agent would further compromise the police’s ability to investigate serious crimes with their help or that of other informers in the future. 19. The Ministry further stated that there were no means other than the non-disclosure of their identity for the Land to protect the physical integrity of the police informer and of the undercover agent. In particular, keeping their names or places of residence secret or excluding the public and the applicant during their interrogation in court would be insufficient to protect them, owing to the presence of the applicant’s lawyers and possibly of contact persons of the applicant observing the court building at the day of the trial. The Ministry also rejected the Regional Court’s proposal to have S. questioned by a commissioned judge outside the main hearing as the applicant’s lawyers would be present during such a hearing and might pass on information to the applicant allowing the latter to detect S.’s identity. Likewise, a video conference including acoustic and optical shielding, as equally proposed by the Regional Court, could not exclude S.’s and C.’s identification by their figure, by their gestures and language used or by the disclosure of details permitting the detection of their identity in the course of questioning by the defence. 20. In the Regional Court’s view, the reasons given in the Ministry’s declarations for the non-disclosure of S.’s, and also C.’s, identities were neither arbitrary nor obviously unlawful. 21. The Regional Court noted that police officer K. had questioned S. on 26 October 2007 and had reported S.’s statements in the hearing. It had then given the defence the opportunity to put questions to S. in writing. On 25 June 2008 K. again questioned S., submitting to him the court’s questions and those of B.’s defence counsel, and again reported S.’s statements in court. Both police officer K.’s and S.’s detailed statements without contradictions were credible, having regard also to the fact that it had only hearsay evidence before it. The Regional Court noted, in particular, that the applicant had contested having carried a loaded revolver during the first two transactions, claiming that the object in his pocket had been a multi-tool. It found that S. had already mentioned on 26 October 2007 that the applicant had carried a weapon. When again being questioned by police officer K. on the court’s request on 25 June 2008, S. had given more details in respect of the revolver and had convincingly explained when and how he had seen that it had been loaded, which demonstrated the veracity of his statements. 22. The Regional Court found that the statements made by the police informer could be used as evidence. Under the well-established case-law of the Federal Court of Justice (the Regional Court referred to Federal Court of Justice, file no. 1 StR 221/99, judgment of 18 November 1999, BGHSt 45, pp. 321 ss., see paragraph 34 below), the use of police informers was permitted to combat serious crimes which were difficult to investigate, such as drug trafficking. It was not relevant in that context whether the applicant had been incited by a police informer to commit an offence as, in any event, this would not lead to an exclusion of evidence. In that event, the court would only have to state in the reasons of its judgment that there had been a breach of the right to a fair trial under Article 6 § 1 of the Convention and would have to mitigate the penalty as a result thereof. 23. The Regional Court considered that S.’s submissions had been supported by considerable further circumstantial evidence. In particular, the nature and amount of drugs trafficked was proven as S. had handed the drugs in question over to the police immediately after the respective transactions. Moreover, in respect of the last offence, the applicant and B. had been caught in the act and arrested at the scene of the crime. Furthermore, B. had initially confessed to the (third) offence in the investigation proceedings and his statements had been reported in the hearing by the police officer and the investigating judge who had questioned him at the time. 24. Finally, both B.’s confession and S.’s statements concerning the second offence had been confirmed by the submissions made by undercover police officer C. to police officer L. who supervised him. L. had testified as a witness giving hearsay evidence in the hearing, the court having dismissed the applicant’s objection to hearing him. The identity of C. had remained unknown as he had equally been covered by the Ministry’s declaration blocking a disclosure of his identity. The investigations by an undercover police officer had been lawful under Articles 110a and 110b § 2 of the Code of Criminal Procedure (see paragraphs 31-32 below), as they had been authorised by the Public Prosecutor’s Office and the District Court and had been indispensable in order to further investigate suspicions of drug trafficking by the applicant. 25. When fixing the sentence, the Regional Court considered as aggravating factors the frequency of the offences as well as the applicant’s prior conviction for drug trafficking. It took into account as mitigating elements that the drug transactions had been under police surveillance from the outset and that the drugs could not, therefore, freely circulate on the market. Moreover, the applicant had trafficked in so-called soft drugs of average quality only. Furthermore, the applicant was disabled at a rate of 70 per cent and therefore particularly susceptible to suffer from detention. 26. In the Regional Court’s view the applicant had not, however, been unduly incited by police informer S. to commit the offences in question, within the meaning of the case-law of the Federal Court of Justice (the Regional Court again referred to the Federal Court of Justice’s judgment of 18 November 1999, cited above, BGHSt 45, pp. 321 ss.). The applicant had already been involved in drug trafficking and been predisposed to sell drugs prior to his meeting with the police informer. This was proven, in particular, by the fact that he had supplied S. with an amphetamine sample already when they discussed drug transactions for the first time. Moreover, he had indicated on that occasion that he could supply S. with larger amounts of drugs. The Regional Court found in that context that the price offered by S. to the applicant (EUR 4,000) was the average price for a kilogram of amphetamine of average quality in the region. Furthermore, the applicant had previously been convicted of drug trafficking. As his offences had not therefore been the result of unlawful police incitement, there was no ground for mitigating the sentence on that account. 27. On 1 August 2008 the applicant lodged an appeal on points of law with the Federal Court of Justice. He claimed, in particular, that his right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention had been breached as he had been unable to cross-examine police informer S. and undercover agent C., on whose submissions his conviction had essentially been based. Moreover, S. had unduly incited him to sell drugs. The evidence obtained by the incitement should therefore have been excluded at his trial. 28. On 12 December 2008 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the Regional Court’s judgment as ill-founded. 29. On 19 January 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the judgment of the Regional Court, confirmed by the Federal Court of Justice, had breached his right to a fair trial under the Basic Law. He had been unduly incited by the prosecution authorities to commit the offences he had later been found guilty of. Therefore, the evidence obtained by police incitement should have been excluded at his trial (he referred to the European Court of Human Right’s judgment in the case of Pyrgiotakis v. Greece, no. 15100/06, 21 February 2008 to support his view). Moreover, throughout the proceedings, he had not had an opportunity to question the police informer and the undercover police officer. 30. On 3 September 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 164/09). The decision was served on the applicant’s counsel on 10 September 2009. | 0 |
test | 001-153911 | ENG | FRA | CHAMBER | 2,015 | CASE OF TCHOKONTIO HAPPI v. FRANCE | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) | null | 5. The applicant was born in 1972 and lives in Paris. 6. She has been living with her daughter and brother in a flat in the Paris area since 2003. By a decision of 12 February 2010, served on 12 March 2010, the Paris mediation commission, finding that the applicant and her relatives were housed in indecent and insalubrious conditions, earmarked their case as a priority for urgent rehousing. 7. As she had not received any offer of accommodation taking account of her needs and capacities six months after the date of that decision, the applicant lodged an application with the Paris Administrative Court seeking an order for the State to provide her with housing, on pain of a fine. 8. On 28 December 2010 the Administrative Court upheld her application and instructed the prefect of the Île-de-France region to rehouse the applicant, her daughter and her brother, on pain of a fine of 700 euros (EUR), payable to the urban development fund for the Île-de-France region, for each month’s delay from 1 February 2011 onwards. The Administrative Court found as follows: “It emerges from the investigation that a safety architect employed by the Paris Police Commissioner’s Office noted on 9 July 2009 that the kitchen ceiling in the flat occupied by [the applicant], her daughter and her brother was in a dangerous state as it was unstable and weak. Her request should therefore be granted as a matter of particular urgency.” 9. On 31 January 2012, as the applicant had still not been rehoused, the Administrative Court assessed the interim amount of the fine for the period from 1 February 2011 to 31 January 2012 and ordered the State to pay EUR 8,400 into the urban development fund for the Île-de-France region. 10. As matters stand, the applicant and her family have still not been rehoused. | 1 |
test | 001-159198 | ENG | ROU | CHAMBER | 2,015 | CASE OF S.C. ANTARES TRANSPORT S.A. AND S.C. TRANSROBY S.R.L. v. ROMANIA | 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) | András Sajó;Egidijus Kūris;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicants are commercial companies authorised to provide services in the area of passenger transport. They are located in Râmnicu-Vâlcea. 6. On 23 September 2004 Vâlcea County Council adopted a decision which set out a programme of passenger transport for the local area for a period of three years. Within the programme, the Drăgăşani – Băbeni – Râmnicu-Vâlcea route was considered as an individual route. Following a public tender, an association consisting of two companies was granted a licence to transport passengers along that route. 7. On 15 April 2005 Vâlcea County Council modified its previous decision and adopted a new programme of passenger transport for a period of three years, covering 2005 to 2008. Within the new programme, the Drăgăşani – Băbeni – Râmnicu-Vâlcea route was grouped together with six other routes. Another public tender took place, and the applicant companies submitted a tender for the group. They subsequently received licences to operate public transportation services for the seven routes in the group. 8. On 24 May 2005 one of the two companies which lost their licence for the Drăgăşani – Băbeni – Râmnicu-Vâlcea route asked the courts to annul Vâlcea County Council’s decision of 15 April 2005, and to oblige the local authorities to adopt a new decision in which the route in question could again be considered as an individual route. 9. The first applicant company requested (and was granted) leave to intervene in the proceedings in order to defend its own interests. Through its submissions, the applicant company argued that the decision adopted by the council on 15 April 2005 was in accordance with the law, and asked the Argeş County Court to dismiss the action. 10. On 13 February 2006 the Argeş County Court held that, by grouping routes together, the county council had acted arbitrarily and had limited access for other competitors in the public transport market. The court considered that the routes had been grouped together without any economic or geographical considerations. The court therefore ordered the county council to re-analyse route no. 047 (the Drăgăşani – Băbeni – Râmnicu-Vâlcea route), and to proceed to a new public tender of the route as an individual route. The court used the following terms: “We consider that, by grouping together these routes, the creation of a monopoly on the road transport market was encouraged, thereby breaching the principles of free competition. In conclusion, the court holds that it is necessary to partially revoke decision no. 63/15.04.2005 on the approval of the programme for passenger transport... for the period 2005 to 2008 in respect of offer 27, group of routes no. 11, route no. 047 Drăgăşani– Băbeni– Râmnicu-Vâlcea. Considering that ... Order no. 1842/2001 was repealed by Order no. 1987/2005 ..., it follows that the defendant should re-analyse route 047 Drăgăşani-Băbeni-Râmnicu-Vâlcea as an individual route in view of these legal provisions and, taking into account the results, proceed to a new public tender.” 11. The first applicant company lodged an appeal on points of law (recurs) against this judgment, arguing that the plaintiff had not proved the existence of a legitimate interest for its request, and that the partial annulment of a public tender would be unlawful. 12. On 28 June 2006 the Piteşti Court of Appeal rejected the first applicant company’s appeal on points of law with final effect. The court explained that there were preconditions imposed by law which had to be fulfilled before a decision to group together certain transport routes could be taken by a local authority. Bearing in mind that in the current case those requirements had not been observed, the lower court had correctly annulled the administrative decision in question in the context of the request before it, namely in respect of route no. 047. The Court of Appeal explained that the lower court had ordered the county council to conduct an analysis of whether or not route no. 047 might be grouped together with other routes, in compliance with the legal provisions in force. Lastly, the court held that non-compliance with those obligations would give those whose interests had been negatively affected the right to request reparation for any consequent damage. 13. On 6 July 2006 Vâlcea County Council adopted a new decision; modifying the programme of public transport for the period 2005-08 by putting out to public tender all seven routes from group no. 11 as individual routes. Consequently, on 26 July 2006 the applicant companies received a letter from the Romanian Traffic Authority (Autoritatea Rutieră Română) informing them that they had to hand over their licences for the entire group of seven routes within thirty days of the final decision in a new public tender. 14. On 15 June 2007 the new public tender was organised for the seven routes in question. The applicant companies did not participate. 15. On 2 October 2006 the applicant companies lodged administrative proceedings requesting the annulment of the decision made by Vâlcea County Council on 6 July 2006. They argued that the Argeş County Court, by its judgment of 13 February 2006, had ordered the analysis as an individual route of only one route out of the group of seven. They further alleged that, by withdrawing their licences for the remaining six routes and organising a new public tender for all of the routes in the group, the authorities had acted unlawfully. 16. On 23 January 2007 the Vâlcea County Court rejected the applicant companies’ complaint. The court held that the contested decision had been adopted in accordance with the judgment of 13 February 2006, but also in compliance with new regulations adopted by the Ministry of Transport; regulations which no longer provided for the possibility of grouping routes together for economic or geographic purposes. 17. The applicant companies’ appeal on points of law against that judgment was rejected with final effect by the Timişoara Court of Appeal on 6 December 2007. The Court of Appeal considered that the lower court had made a correct analysis of the facts. 18. The president of the panel of three judges added a separate dissenting opinion to the judgment on the appeal on points of law. He considered that, by adopting the decision of 6 July 2006, Vâlcea County Council had not properly enforced the judgment of 13 February 2006, and had therefore breached the applicant companies’ right to property guaranteed by Article 1 of Protocol No. 1 to the Convention. The judge explained that the applicant companies had participated in a public tender, and had won the right to exploit the group of seven routes in question. Although the county council had been ordered by final judgment to reanalyse only one of the routes above as an individual route, they had adopted without any legal basis a new decision which considered all of the routes individually. 19. On 5 October 2006 the first applicant company requested before the administrative court the annulment of the Romanian Traffic Authority’s decision of 26 July 2006 to withdraw its licences for the entire group of routes. The first applicant company also requested that the enforcement of that decision be suspended pending the delivery of a final judgment in the case. 20. The first applicant company argued that the contested decision prevented it and its associate (the second applicant company) from participating in the next public tender for the same route. The applicant companies further argued that the withdrawal of their licences had not been in compliance with Article 65 of Order no. 1987/2005, which set out the grounds on which licences could be withdrawn. 21. On 18 December 2006 the Piteşti Court of Appeal rejected the action as submitted by the first applicant company. The court held that the applicant had not proved the alleged damage caused by the decision of the Romanian Traffic Authority, since it could participate in the new tender. In addition, there was no proof that the applicant company would be prevented from participating in the new tender. The court further explained that, should the applicant company consider itself prejudiced by the administrative act which was in dispute, it could request damages from those responsible for any consequent loss. 22. The first applicant company lodged an appeal on points of law against that judgment. It alleged that the licences for the entire group of routes could not be lawfully withdrawn, since not all of them had been annulled by a court judgment. The first applicant company argued that, in accordance with Article 66 of Order no. 1987/2005, a company whose licence for a certain route had been withdrawn could not participate in a new tender for the same route. 23. On 25 April 2007 the High Court of Cassation and Justice decided to allow the first applicant company’s request, and partially annulled the decision of the Romanian Traffic Authority, which was upheld only in respect of the licence for route no. 047. The High Court considered that the licences held by the applicant company for the other six routes of offer 27, group no. 11 constituted “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention, and that there was no reason to order their remittal through an administrative act. | 1 |
test | 001-170389 | ENG | HUN | CHAMBER | 2,017 | CASE OF BÉRES AND OTHERS v. HUNGARY | 4 | No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. A list of the applicants is set out in the appendix. 6. On 23 December 2011 the applicants, political activists, participated in a demonstration organised by the political party “Politics Can Be Different’” (Lehet Más a Politika). The demonstrators blocked the entrance of a car park adjacent to the Parliament building by chaining themselves to each other and to concrete columns situated next to the entrance. 7. Following the incident the Budapest main police department opened criminal investigations against twenty-nine persons, including the applicants, on charges of violation of personal liberty under Article 175(1) of Act no. IV on the [old] Criminal Code. 8. On 9 March 2012 Parliament enacted Act no. XII of 2012 (“the Amnesty Act”) (see paragraph 12 below), which entered into force on 10 March 2012. 9. On 29 March 2012 the Budapest main police department discontinued the criminal investigation against the twenty-nine suspects, pursuant to Article 190 §§ 1 (e) and 2 of the Code on Criminal Procedure on the grounds that they had been granted amnesty. The applicants did not appeal against that decision. 10. On 6 September 2012 six of the applicants, Ms Bende, Ms Kalocsai, Ms Ámon, Ms Székelyné Rákosi, Mr Moldován and Mr Gajárszki, lodged a constitutional complaint requesting the Constitutional Court to declare sections 1, 2 and 4 of the Amnesty Act unconstitutional as infringing the right to their reputation and the principle of presumption of innocence. 11. The Constitutional Court declared the complaint inadmissible. It reasoned that the complaint did not raise any constitutional-law issues of “fundamental importance”, since it was based on an erroneous interpretation of the law. The Constitutional Court pointed out that the language employed by the Act could not be interpreted as establishing that the applicants had indeed committed the offence. In any event, the complaint was time-barred since it had been lodged outside the statutory 180 days’ time-limit following the entry into force of the legislation. | 0 |
test | 001-151056 | ENG | ITA | CHAMBER | 2,015 | CASE OF PARADISO AND CAMPANELLI v. ITALY | 2 | Preliminary objection allowed (Article 35-3 - Ratione personae);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1967 and 1955 respectively and live in Colletorto. 6. The applicants are a married couple. In the application form, they indicated that, after unsuccessful attempts at in vitro fertilisation, they decided to resort to gestational surrogacy in order to become parents. To that end, they contacted a Moscow-based clinic which specialised in assisted reproduction technology. They entered into a gestational surrogacy agreement with the company Rosjurconsulting. After a successful in vitro fertilisation on 19 May 2010, two embryos “belonging to them” were implanted in the womb of a surrogate mother on 19 June 2010. There was no genetic link between this woman and the embryos. 7. The baby was born on 27 February 2011. The surrogate mother gave her written consent to the child being registered as the applicants’ son. Her written declaration, dated the same day, and read aloud at the hospital in the presence of her doctor, the head doctor and the head of the (hospital) department, is worded as follows (English translation of the original Russian version): “I, the undersigned... gave birth to a boy in the ... maternity hospital in Moscow. The child’s parents are an Italian married couple, Giovanni Campanelli, born on ... and Donatina Paradiso, born on..., who expressed in writing their wish to have their embryos implanted in my womb. On the basis of the foregoing and in accordance with section 16(5) of the Federal Law on Civil Status and Article 51 (4) of the Family Code, I hereby give my consent for the above couple’s entry in the birth record and the birth certificate as parents of the child to whom I gave birth...” This statement, in the Italian translation appended to the original, reads as follows (in English): “I, the undersigned... gave birth to a boy in the ... maternity hospital in Moscow. The child’s genetic parents are an Italian married couple, Giovanni Campanelli, born on ... and Donatina Paradiso, born on..., who expressed in writing their wish to have their embryos implanted in my womb. On the basis of the foregoing and in accordance with section 16(5) of the Federal Law on Civil Status and Article 51 (4) of the Family Code, I hereby give my consent for the above couple’s entry in the birth record and the birth certificate as parents of the child to whom I gave birth...” 8. On 10 March 2011, in accordance with Russian law, the applicants were registered as the baby’s parents. The Russian birth certificate, which contained no reference to the gestational surrogacy, was certified in accordance with the provisions of the Hague Convention of 5 October 1961 (hereafter, “the Hague Convention”) Abolishing the Requirement of Legalisation for Foreign Public Documents. 9. On 29 April 2011 the first applicant went to the Italian Consulate in Moscow to obtain the documents that would allow the baby to leave for Italy with her. The applicant answered questions and submitted the paperwork concerning the child’s birth. The Italian Consulate issued the documents enabling the boy to leave for Italy with the first applicant. 10. On 30 April 2011 the first applicant and the child arrived in Italy. A few days later the second applicant contacted the Colletorto municipality, requesting that the particulars of the birth certificate be entered in the register. 11. In a note of 2 May 2011 – which is not included in the Court’s casefile – the Italian Consulate in Moscow indicated to the Campobasso Youth Court, the Ministry of Foreign Affairs and the Colletorto Prefecture and municipality that the paperwork in respect of the child’s birth contained false information. 12. On 5 May 2011 the applicants were placed under formal investigation for “altering civil status” within the meaning of Article 567 of the Criminal Code and forgery within the meaning of Articles 489 and 479 of the Criminal Code; and also for breaching section 72 of the Adoption Act (Law no. 183/1984), since they had brought the child into the country in breach of the law and had circumvented the condition set out in the adoption authorisation obtained by them on 7 December 2006, which prohibited them from adopting such a young child. 13. On 5 May 2011 the State Counsel’s Office attached to the Campobasso Youth Court asked that proceedings to free the child for adoption be opened, since the child ought to be considered, for legal purposes, as having been abandoned. On the same date the Youth Court appointed a guardian ad litem (curatore special) within the meaning of section 8 of Law no. 184/1983 and opened proceedings to free the child for adoption. On 16 May 2011 the State Counsel asked for a court-appointed adviser (curatore) to be named within the meaning of sections 8 and 10 of Law no. 184/83. A court-appointed adviser was named. It appears from the case file that the applicants protested against the measures in respect of the child and had asked to be able to adopt him. 14. On 25 May 2011 the first applicant, assisted by a lawyer of her own choosing, was questioned by the Larino carabinieri. She stated that she had travelled to Russia alone in September 2008, carrying with her seminal fluid that had previously been collected from her husband. She had concluded a contract with the company Rosjurconsulting, which had undertaken to find a surrogate mother willing to have implanted in her womb genetic material from the first applicant and her husband, through the Vitanova Clinic in Moscow. This practice was perfectly legal in Russia, and made it possible to obtain a birth certificate which identified the applicants as parents. In June/July 2010 the first applicant had been contacted by the Russian company, which stated that a surrogate mother had been found and had agreed to the medical procedure. On 10 March 2011 the first applicant had travelled to Moscow. In April 2011, with a birth certificate issued on 10 March 2011 by the Russian authorities, she had gone to the Italian Consulate in Moscow to obtain the documents that would enable the child to leave Russia and travel to Italy. The birth certificate showed the applicants’ names and identified them as the parents. 15. On 27 June 2011 the applicants were heard by the Youth Court. The first applicant stated that, after eight unsuccessful attempts at in vitro fertilisation, which had endangered her health, she had resorted to the Russian clinic, since it had been possible in Russia to use ova from a donor, which were subsequently implanted in the surrogate mother’s womb. 16. At the same time, the child’s court-appointed adviser asked the court to suspend the applicants’ parental responsibility within the meaning of section 10 § 3 of Law no. 184/1983. 17. On 7 July 2011 the court ordered that DNA testing be carried out in order to establish whether the second applicant was the child’s biological father. 18. On 11 July 2011 the Ministry of the Interior asked the Registry Office to refuse to enter the particulars of the birth certificate in the civil-status register. 19. On 1 August 2011 the second applicant and the child underwent DNA testing. The result of those tests showed that there was no genetic link between them. 20. On 4 August 2011 the Registry Office refused to register the birth certificate. The applicants lodged an appeal with the Larino Court against this refusal. The State Counsel’s Office asked the court to give the child a new identity and to issue a new birth certificate. 21. The Larino Court having ruled on 29 September 2011 that it did not have jurisdiction, the proceedings resumed before the Campobasso Court of Appeal. The applicants demanded that the particulars of the Russian birth certificate be entered in the Italian register. 22. On 20 October 2011, on the basis of the genetic testing and the submissions of the parties, including those of the child’s court-appointed adviser, the Youth Court decided to remove the child from the applicants. This decision was immediately enforceable. In reaching its decision, the court took account of the following factors: the first applicant had stated that she was not the genetic mother; the ova came from an unknown woman; the DNA test carried out on the second applicant and the child had shown that there was no genetic link between them; the applicants had paid a large sum of money (49,000 euros (EUR)); contrary to his allegations, there was nothing to prove that the second applicant’s genetic material had indeed been transported to Russia. The only thing that was certain in this story was the identity of the surrogate mother, who was not the biological mother and who had relinquished the child just after his birth. The biological parents remained unknown. That being the case, the situation was not one of subrogated maternity, since the child had no biological link with the applicants. The latter were steeped in illegality: they had brought a child into Italy by passing him off as their son. In so doing, they had, in the first place, breached the provisions on international adoption (Law no. 184 of 4 May 1983), section 72 of which made such breaches a criminal offence, the assessment of which was not, however, a matter for the youth court. Secondly, the agreement entered into by the applicants with the company Rosjurconsulting was contrary to the Medically Assisted Reproduction Act (Law no. 40 of 19 February 2004), section 4 of which prohibited heterologous assisted fertilisation. This illegal situation had to be brought to an end, and the only way to do so was to remove the child from the applicants. The child would admittedly suffer harm as a consequence of the separation but, given the short period spent with the applicants and his young age, the child would be able to surmount this. Steps would be taken immediately to find a couple of adoptive parents. In addition, given that the applicants had preferred to circumvent the adoption legislation, notwithstanding the authorisation they had received, it could be thought that the child resulted from a narcissistic desire on the part of the couple or indeed that he was intended to resolve problems in their relationship. In consequence, the court cast doubt on whether they were genuinely capable of providing emotional and educational support. As the child had neither a biological family nor his surrogate mother, since she had relinquished him, the court considered that the Italian legislation on adoption was applicable to this case (within the meaning of section 37bis of Law no. 184/1983), entrusted the child to the social services and appointed a guardian (tutore) for his defence. 23. The child was placed in a children’s home (casa famiglia) in a locality that was unknown to the applicants. They were forbidden from having contact with the child. 24. The applicants lodged an appeal (reclamo) with the Campobasso Court of Appeal. They argued, inter alia, that the Italian courts could not call into question the birth certificate. They further requested that no measures be taken concerning the child while the criminal proceedings brought against them and the proceedings challenging the refusal to enter the birth certificate in the Italian register were pending. 25. By a decision of 28 February 2012, the Campobasso Court of Appeal dismissed the appeal. It transpires from this decision, among other points, that section 33 of Law no. 218/95 (Private International Law Act) did not prevent the Italian courts from refusing to comply with certified information from a foreign State. There was no issue of lack of jurisdiction, since section 37bis of the International Adoption Act (Law no. 184/1983) provided that Italian law was applicable if the alien minor had been abandoned, and that was the situation in this case. Moreover, it was unnecessary to await the outcome of the criminal proceedings, since the applicants’ criminal liability was irrelevant. On the contrary, it was necessary to take an urgent measure in respect of the child, in order to put an end to the illegal situation in which the applicants existed. It was not possible to lodge an appeal on points of law against this decision. 26. It appears from a memorandum dated 22 May 2012, sent by the youth court to the Ministry of Justice, that the child had not yet been declared available for adoption, since the proceedings with regard to the transcription of the child’s birth certificate were pending before the Campobasso Court of Appeal. 27. In the meantime, on 30 October 2011 the State Counsel attached to the Larino Court had ordered the interim attachment of the Russian birth certificate, on the ground that it was an essential piece of evidence. It appeared from the case file that not only had the applicants probably committed the offences with which they were charged, but that they had attempted to conceal them. Among other things, they had stated that they were the biological parents, and had corrected their versions of the events over time as those versions had been proved inaccurate. 28. The applicants appealed against the interim attachment order. 29. By a decision of 20 November 2012, the Campobasso Court dismissed the applicants’ appeal. The decision indicates that there existed serious suspicions that the offences in question had been committed. In particular, the first applicant had put about a rumour that she was pregnant; she had gone to the Consulate and implied that she was the natural mother; she had then admitted that the child had been born to a surrogate mother; she had stated to the carabinieri on 25 May 2011 that the second applicant was the biological father, although the DNA tests had disproved this, and had therefore made false statements; she had been very vague as to the identity of the genetic mother; the documents concerning the surrogate motherhood stated that the two applicants had been seen by the Russian doctors, which did not accord with the fact that the second applicant had not been in Russia; the documents about the birth did not have a precise date. All that was known was that the child had been born and that he had been handed over to the first applicant against payment of almost EUR 50,000. Accordingly, the hypothesis that the applicants had conducted themselves illegally with a view to having the particulars of the birth certificate entered in the register of births, marriages and deaths and to circumventing the Italian legislation appeared sound. 30. In November 2012 the decision regarding the interim attachment was transmitted to the youth court by State Counsel, since it had the following implications. The charges under section 72 of Law no. 184/1983 deprived the applicants of the possibility of fostering (affido) the child and of adopting him or other minors. There was therefore no other solution but to proceed with the adoption procedure for the child. The temporary placement with a foster family had been requested by virtue of sections 8 and 10 of Law no. 184/83. The State Counsel repeated his request and emphasised that the child had been removed more than a year previously, and that he had since been living in a children’s home (casa famiglia), where he had developed meaningful relationships with the persons responsible for looking after him. Thus, the child had not yet found a replacement family environment for the home that had been illegally provided by those who had brought him to Italy. He seemed destined for yet another separation, even more painful than that from the mother who had given birth to him and from the woman who was claiming to be his mother. 31. It appears from the file that the child was placed in a foster family on 26 January 2013. 32. In March 2013, at the guardian’s request, an expert examination was carried out to determine the child’s age. It found that the child was probably aged 30 months, with a margin of error of three months. 33. In addition, at the beginning of April 2013 the guardian asked the juvenile court to give the child a formal identity, so that he could be registered for school without difficulty. He stated that the child had been placed in a family on 26 January 2013, but that he did not have an official identity. This “lack of existence” had a significant impact on administrative matters: it was unclear under what name the child was to be registered for school, for vaccination records, or for residence. Admittedly, this situation corresponded to the aim of preventing the original family, that is, the applicants, from discovering the child’s whereabouts, for his own protection. However, a temporary formal identity would enable the secrecy surrounding the child’s real identity to be maintained, while simultaneously enabling him to have access to public services; for the time being, he was entitled only to use emergency medical services. 34. By an immediately enforceable decision of 3 April 2013, the Campobasso Court of Appeal ruled in respect of the birth certificate and on whether an order should be made for it to be entered in the register of births, marriages and deaths (within the meaning of Article 95 of Presidential Decree (“DPR”) no. 396/00). It dismissed the objection raised by the guardian to the effect that the applicants did not have standing before the court; it acknowledged that the applicants had capacity to act in legal proceedings, in so far as they were indicated as the “parents” in the birth certificate that they wished to have transcribed. However, it was clear that the applicants were not the biological parents. There had not therefore been a gestational surrogacy, although the applicants had referred in their pleadings to heterologous artificial fertilisation; the parties agreed that the Russian legislation presupposed a biological link between the child and at least one of the potential parents before the term surrogate motherhood could be used. The birth certificate was therefore fraudulent (ideologicamente falso). Further, given that there was nothing to show that the child had Russian citizenship, the applicants’ argument that Italian law was inapplicable ran counter to section 33 of Law no. 218/95, which stated that the legal parent-child relationship was determined by the national law governing the child at the time of his or her birth. In addition, it was contrary to public order to enter the particulars of the disputed birth certificate in the register of births, marriages and deaths, since it was fraudulent. The applicants had pleaded their good faith, alleging that they were unable to explain why the second applicant’s seminal fluid had not been used in the Russian clinic; however, this did not alter the situation, and did not rectify the fact that the second applicant was not the biological father. In conclusion, it was legitimate to refuse to enter the particulars of the Russian birth certificate in the register of births, marriages and deaths, and to grant the State Council’s request that a new birth certificate be issued. The court therefore ordered that a new birth certificate be issued, indicating that the child was the son of persons unknown, born in Moscow on 27 February 2011, and that he be given a new name (determined within the meaning of DPR no. 396/00). 35. The proceedings relating to the child’s adoption were resumed before the Youth Court. The applicants confirmed their opposition to the child’s placement with third persons. The guardian asked the court to rule that the applicants no longer had locus standi. The State Council asked the court not to rule on its request to declare that the child was available for adoption using the child’s original name, on the ground that, in the meantime, he had opened a second set of proceedings requesting that the child be declared available for adoption using his new identity as a child of unknown parents. On 5 June 2013, in the light of the material in the file, the Youth Court held that the applicants no longer had capacity to act in the adoption proceedings brought by them, given that they were neither the child’s parents nor members of his family, within the meaning of section 10 of Law no. 184/1983. The court stated that it would decide on the question of the child’s adoption in the context of the other adoption proceedings, referred to by State Council. | 1 |
test | 001-155357 | ENG | ROU | CHAMBER | 2,015 | CASE OF CARAIAN v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence) | Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1940 and lives in Bucharest. 6. On 23 August 1996 the Sibiu Police Department remanded the applicant in custody for twenty-four hours on suspicion of intellectual forgery (fals intelectual) and use of forged documents (uz de fals). 7. By an order of 24 August 1996 the Sibiu Prosecutor’s Office detained the applicant for five days pending trial on account of the seriousness of the offences and the need to protect public order. 8. By an order of 28 August 1996 the Sibiu Prosecutor’s Office extended the applicant’s pre-trial detention by twenty-five days on account of the seriousness of the offences, the need to protect public order, and the need to prevent him from destroying evidence. 9. The applicant challenged the order before the domestic courts and requested to be released under judicial supervision. 10. By a final interlocutory judgment of 18 October 1996 the Alba Iulia Court of Appeal allowed the applicant’s challenge. It held that the applicant’s arrest had been lawful; however there was no lawful reason concerning the applicant that would prevent the court from releasing him under judicial supervision. 11. On 2 September 1997 the Sibiu Prosecutor’s Office indicted the applicant and other co-accused for bribery, influence peddling, complicity in fraud, intellectual forgery, and use of forged documents, and referred the case to the Sibiu County Court. 12. On 17 April 1997, 15 May, 2 July and 17 September 1998 the Sibiu County Court heard the applicant, his co-accused and the witnesses in the case. In addition it allowed the applicant’s and his co-accuseds’ request for documentary evidence, and ordered an expert financial report to be produced in the case. The applicant submitted that he did not agree that a financial expert report should be produced in the case, and refused to submit observations on the report’s objectives following the court’s request. 13. On 15 October 1999 the applicant informed the Sibiu County Court that he had no objections in respect of the financial expert report. 14. On 22 May 2000 the applicant’s chosen legal representative submitted oral observations to the court in respect of the merits of the case. 15. On 15 June 2000 the Sibiu County Court acquitted the applicant on the basis of documentary, testimonial and expert evidence in addition to the applicant’s statements, on the ground that no unlawful act had been committed. 16. The Sibiu Prosecutor’s Office appealed against the judgment. 17. On 5 December 2000 the Alba Iulia Court of Appeal allowed the Sibiu Prosecutor’s Office’s appeal on the merits, quashed the judgment of 15 June 2000, convicted the applicant of bribery, trafficking influence, complicity in fraud, and forgery of privately signed documents (fals ȋn ȋnscrisuri sub semnătură privată) which following changes to the relevant domestic legislation had absorbed the offences of intellectual forgery (fals intelectual) and use of forged documents (uz de fals), and sentenced him to three years’ imprisonment. 18. The applicant appealed on points of law (recurs) against the judgment. 19. On 1 March 2002 the Court of Cassation allowed the applicant’s appeal on points of law, quashed the judgments of 15 June and 5 December 2000, and referred the case back to the Sibiu Prosecutor’s Office for the entire criminal investigation of the case to be carried out again. The court held that the prosecutor’s office had failed to observe the lawful requirements for investigating the case, had established the facts of the case superficially, and had breached procedural rules which affected the very existence of the criminal investigation and the lawfulness of the referral of the case to the court. It noted that the investigation had been carried out mainly by the police, and not by the prosecutor as required by the applicable rules of criminal procedure; the prosecutor’s office had failed to produce all the relevant evidence in the case concerning the existence of the offences and of the defendants’ guilt, and had not clarified the contradictions in the available evidence, in particular between the expert opinions produced in respect of the case. The domestic courts which had examined the case had also been unable to clarify the existence or inexistence of the alleged damage caused by the defendants, or to quantify it. 20. On 16 October 2002 the Sibiu Prosecutor’s Office referred the applicant’s case to the National Anticorruption Prosecutor’s Office. It held that given the applicant’s status and the nature of some of the offences the National Anticorruption Prosecutor’s Office was competent to carry out the criminal investigation in respect of the case. 21. From 27 November 2002 to 13 January 2003 the prosecutor attached to the National Anticorruption Prosecutor’s Office heard the applicant and his co-accuseds 22. On 30 June 2003 the National Anticorruption Prosecutor’s Office discontinued the criminal proceedings opened against the applicant for bribery and influence peddling on the ground that no unlawful act had been committed. The prosecutor’s office relied on testimonial evidence, including statements by the applicant produced both before the courts and before the prosecutor’s office after the case had been referred back there by the courts. In addition, it referred the case to the Sibiu Prosecutor’s Office in order to carry out the criminal investigation opened against the applicant for complicity in fraud and forgery of privately signed documents, on the ground that it was not competent to carry out the investigation in respect of those offences. 23. On 31 July 2003 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. It held on the basis of the documentary, testimonial and expert evidence available in the file that although the applicant’s criminal liability was undeniable, the criminal action initiated against him was time-barred. 24. The applicant challenged that decision, and on the basis of Article 13 of the Romanian Code of Criminal Procedure requested that the authorities continue the criminal investigation initiated against him to enable his innocence to be established. 25. On 11 November 2003 the Sibiu Prosecutor’s Office allowed the applicant’s challenge and reopened the criminal investigation against the applicant. 26. On 12 November 2003 the prosecutor attached to the Sibiu Prosecutor’s Office heard the applicant. On the same date the applicant stated that he did not have any more evidence to request, and that the evidence already produced fully proved his innocence. In addition, he asked the authorities to examine the circumstances of his case by relying on the evidence produced at the pre-trial and trial stages of the proceedings. 27. On 14 November 2003 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. It held on the basis of the testimonial, documentary and expert evidence available in the file, as well as the applicant’s own statements, that although the applicant’s unlawful acts had been proven, the criminal action initiated against him was time-barred. 28. The applicant appealed against the order before the Sibiu County Court. He argued that the prosecutor’s office’s order was unlawful, because the criminal investigation against the applicant had been carried out by the same prosecutor who had previously confirmed the applicant’s indictment. In addition, he denied committing the impugned offences. 29. On 31 May 2004 the Sibiu County Court held that it was not competent ratione materiae to examine the applicant’s action, and referred the case to the Sibiu District Court. 30. On 14 July 2004 the Sibiu District Court allowed the applicant’s action, quashed the prosecutor’s office’s order of 14 November 2003, and referred the case back to the prosecutor’s office for the criminal investigation against the applicant to be reopened. It held that the criminal investigation against the applicant had been carried out by the same prosecutor who had previously confirmed the applicant’s indictment. In addition, by declining to examine the remaining arguments raised by the applicant, it had instructed the prosecutor’s office to assess if the applicant’s complaint concerning the merits of the case was founded. Lastly, it instructed the prosecutor’s office to clearly determine the extent of the applicant’s involvement in committing the impugned offences and also whether he had been indicted for the same unlawful acts of which he had been informed. 31. The applicant appealed on points of law against the judgment, without providing any arguments. 32. On 18 October 2004 the Sibiu County Court dismissed the applicant’s appeal on points of law as ill-founded, and upheld the judgment of the first-instance court. The court noted that the applicant had submitted the grounds for his appeal on points of law after the debates on the merits of the case had been closed. 33. On 21 March 2005 the Sibiu Prosecutor’s Office discontinued the criminal investigation initiated against the applicant. It held on the basis of the documentary, testimonial and expert evidence available in the file produced both during the previous investigation and during the trials that, although the applicant was guilty of the impugned offences, the criminal proceedings initiated against him were time-barred. In addition, it described the applicant’s involvement in committing the unlawful acts and noted that after its reopening the criminal investigation against the applicant had been carried out by a different prosecutor from the one who had confirmed his indictment. Furthermore, the applicant had been indicted for the same unlawful acts of which he had been informed. In this connection, the prosecutor’s office noted that some of the offences had been examined by the prosecutor’s order of 30 June 2003. Also, following some amendments to the relevant legislation, the domestic legal practice had changed: the offences of intellectual forgery and use of forged documents had been absorbed by the offence of forgery of privately signed documents. 34. The applicant appealed against the decision before the Sibiu District Court by relying on Article 2781 § 8 (c) of the Romanian Code of Criminal Procedure. He argued that the domestic court should quash the prosecutor’s decision, retain the case for examination, and acquit him. In addition, he contended that the prosecutor’s order had been unlawful because it concerned acts with which the criminal investigation was not concerned, and was in any case not supported by the evidence available to the file. Also, without providing any grounds the investigating authorities had ceased to accuse him of intellectual forgery or use of forged documents. Furthermore, the Sibiu Prosecutor’s Office did not follow the mandatory instructions received from the court. There was no evidence in the file that he had been an accomplice to an offence. Lastly, he had disagreed with being charged with forgery of privately signed documents; he had argued that the parties had not been allowed to submit observations in respect of the requalification carried out. 35. On 18 January 2006 the applicant and his chosen legal representative informed the Sibiu District Court that he did not have other requests in respect of the judicial investigation of the case. They further argued, among other things, that although in July 2004 the Sibiu District Court had ordered the prosecutor’s office to reopen the criminal proceedings against him and had given the investigating authorities several instructions, none of those instructions had been followed. In particular, no evidence was adduced, and they were not called to take part in the production of evidence. Also, the investigating authorities did not clarify any of the issues identified by the court. Consequently, they requested that on the basis of Article 2781 § 8 (c) the court should quash the prosecutor’s order and, given that the production of other evidence was not necessary, acquit the applicant in respect of the merits of the case. 36. By a judgment of 2 February 2006 the Sibiu District Court dismissed the applicant’s appeal and upheld the prosecutor’s decision, relying on the available evidence. It held that the investigating authorities had not ceased to accuse him of intellectual forgery or use of forged documents, but had requalified those offences as forgery of privately signed documents. Also, the Sibiu Prosecutor’s Office had observed the mandatory instructions received from the court. In particular, the criminal investigation had been carried out by a different prosecutor from the one who had indicted the applicant, the prosecutor had explained in detail how the applicant had helped and contributed to the commission of the offences, and had verified that the acts for which the criminal investigation had been opened were identical to those indicated by the prosecutor’s order. Furthermore, the prosecutor’s order had clearly described in detail, by relying on evidence, why the applicant had been an accomplice to an offence. Lastly, the applicant’s own statements amounted to an acknowledgment that he had forged privately signed documents. 37. The applicant appealed against the judgment on points of law. He argued that the domestic court should quash the prosecutor’s decision, retain the case for examination, and on the basis of the same evidence available in the file acquit him of fraud and forgery of privately signed documents. He further contended that the evidence in the file and the examination carried out by the prosecutor’s office did not prove that he had committed the offences. Also, the parties had not been allowed to submit observations following the requalification of two of the offences he had been charged with to forgery of privately signed documents. 38. By a final judgment of 30 March 2007 the Bacău County Court dismissed the applicant’s appeal on points of law and acknowledged the lawfulness of the prosecutor’s order of 21 May 2005 and of the firstinstance court’s judgment. It so held on the basis of the available documentary, testimonial and expert evidence produced both during the criminal investigation and before the domestic courts that the applicant had committed the offences of complicity in fraud and forgery of privately signed documents. In addition, the prosecutor’s office had examined the applicant’s guilt on the merits, and had established that the acts had existed and therefore the criminal proceedings against the applicant could not have been discontinued on the ground that no unlawful act had been committed. Therefore, the prosecutor’s office had correctly held that the criminal proceedings initiated against him had been time-barred. 39. In a letter of 28 February 2008 the applicant informed the Court that the criminal proceedings initiated against him had destroyed his reputation, and that a virulent press campaign had been initiated against him and his company at the time of his arrest. The applicant submitted three articles published in local and national newspapers between June 1997 and March 1998 describing the events which led to the charges being brought against him and a chronological narration of the criminal proceedings initiated against him. | 1 |
test | 001-167180 | ENG | GBR | ADMISSIBILITY | 2,016 | GAUNT v. THE UNITED KINGDOM | 4 | Inadmissible | Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano | 1. The applicant, Mr Jon Gaunt, is a British national, who was born in 1961 and lives in Leamington. He was represented by Mr K. O’Rourke of Howe & Co Solicitors, a lawyer practising in Brentford. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. McLeod of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was a presenter with Talksport, a speech-based radio station. He presented a programme which covered a range of news issues and he was well-known for his “combative and hard-hitting” style with interviewees. 5. On 7 November 2008 the applicant conducted a live interview with M.S., the Cabinet Member for Children’s Services for Redbridge London Borough Council. The interview concerned the council’s proposal to ban smokers from becoming foster parents on the ground that passive smoking could harm foster children. The applicant had spent some of his childhood in the care system and on the morning of the interview an article written by him on the subject was published in The Sun newspaper. The article was headlined “Fags didn’t stop my foster mum caring for me”. The following extract is relevant to the present proceedings: “Tonight in Britain more than 60,000 children won’t have a special person to tuck them in at night, read them a story or take an interest in what happened during their day at school. Meanwhile, the zealots who dreamed up this policy will sleep easy on their futons because they are putting the ‘health needs’ of kids in care first. This is the same warped logic that condemns black children to a life in care rather than let them be fostered by white couples. The same master race philosophy that forbids fat couples from adopting. The SS – that is social services by the way – think that the risk from passive smoking is more dangerous to a child than them being left to rot in a children’s home. They should understand that most parents realise the dangers and wouldn’t smoke in an enclosed space with children around. Foster parents are no different. The woman who rescued me from care, and undoubtedly turned me around as a child, smoked like a chimney but she was also a hospital matron. She lavished love, care and, most importantly, discipline on me. Without her I wouldn’t be where I am today... Today it’s Redbridge but, unless we all make a noise now, tomorrow it will be a national policy and thousands more children will fall victim to the health and safety Nazis and be left alone in a care home.” 6. Prior to the applicant’s interview with M.S., he was warned by Talksport that the subject might be emotive for him. In fact, in the hours before the interview programming staff advised him on three occasions to remain calm and allow M.S. to put his point of view across. 7. The applicant’s radio interview with M.S. lasted just over ten minutes. In the proceedings which followed, the President of the Queen’s Bench Division summarised the interview in the terms set out below: “The first part of the interview was reasonably controlled, giving [M.S.] a reasonable opportunity to explain his council’s policy. The claimant then asked him about existing foster parents who only ever smoke in the open air. [M.S.] explained that the council would not drag children away from existing foster parents, but that such smokers would not be used in the future. The trouble was that such people do smoke in the house. Asked by the claimant how he knew this, [M.S.] explained that there were Redbridge councillors who say they never smoke in the building, but in fact do so. To which the claimant said ‘so you are a Nazi then?’ When [M.S.] began to protest, the claimant again said ‘no you are, you’re a Nazi’. [M.S.] protested vehemently that this was an offensive and insulting remark, and the interview then degenerated into an unseemly slanging match. When [M.S.] protested that the insult, as he saw it, was probably actionable, the claimant challenged him to ‘take action if you wish’, but then said ‘you’re a health Nazi’. The slanging match continued with the claimant asking [M.S.] if he wanted to carry on with the interview, and [M.S.] replying that he would love to if the claimant would just shut up for a minute. It emerged that the claimant had himself been in care. He referred to his column in The Sun that day and again called [M.S.] a ‘health Nazi’ and then ‘a Nazi’. The heated shouting continued with the claimant doing much of the talking. [M.S.] asked him just to shut up for a moment, and said in effect that the conditions of those in care were better than they had been. The claimant regarded this as an offensive insult to his own upbringing and called [M.S.] ‘you ignorant pig’. He later referred to him as a ‘health fascist’ and an ‘ignorant idiot’, and shortly after this he ended an interview that by then had got completely out of control. It is scarcely possible to convey the general and particular tone of this interview in a short written summary, and the full transcript is in this respect incomplete. You have to hear it for its full impact. As we have said, it degenerated into a shouting match from the point when the claimant first called [M.S.] ‘a Nazi’. That first insult was not said with particular vehemence, but ‘you ignorant pig’ was said with considerable venom and was we think gratuitously offensive. The interview as a whole can fairly be described as a rant.” 8. Within ten minutes of the end of the interview, the applicant apologised to the listeners, accepting that he did not “hold it together”, that he had been “unprofessional” and that he had “lost the rag”. One hour after the end of the broadcast, he made a further apology in the following terms: “The Councillor wants me to apologise for calling him a Nazi. I’m sorry for calling you a Nazi.” 9. The applicant was suspended from his programme by Talksport the same day and an internal investigation was launched. Talksport subsequently terminated his contract without notice by letter dated 17 November 2008. 10. Following the broadcast, Ofcom, the independent regulator and competition authority for the United Kingdom communications industries, received fifty-three complaints about the applicant’s conduct. Some of the complaints concerned the manner in which the interview had been conducted, as the complainants believed that it was an “unprovoked personal attack”, and that the applicant was “oppressive”, “intimidating”, and “shouting like a playground bully”. Other complainants were offended by the word “Nazi”. 11. Ofcom launched an investigation into the matter under the Broadcasting Code. In its response to Ofcom, Talksport stated that it regretted what had happened and accepted that the interview “fell way below the acceptable broadcasting standards which it expected and demanded”. It totally accepted and regretted that the applicant’s language had been offensive and that the manner in which the interview was conducted had been indefensible. 12. In a report published on 8 June 2009, Ofcom concluded that the broadcast had breached Rules 2.1 and 2.3 of the Broadcasting Code (see paragraph 30 below) as it fell short of the generally accepted standards applied to broadcast content and included offensive material which was not justified by the context. In reaching this conclusion, Ofcom took into account the right of broadcasters to hold opinions and impart information without interference; the fact that Talksport specialised in a genre of hardhitting talk radio which could at times prove uncomfortable and challenging listening; the fact that the broadcast of “offensive” material was not in itself a breach of Ofcom’s code as the Code did not prohibit the broadcasting of offensive material; the extremely aggressive tone of the applicant’s interview style on this occasion; and the seriousness which the broadcaster attached to the incident, as demonstrated by its prompt investigation and the applicant’s two on-air apologies. Nevertheless, it found that Talksport’s compliance procedures did not appear robust enough to deal with problematic material being broadcast live. Moreover: “the language used by Jon Gaunt, and the manner in which he treated [M.S.], had the potential to cause offence to many listeners” and “the offensive language used to describe [M.S.], and what would be considered to be a persistently bullying and hectoring approach taken by Jon Gaunt towards his guest, exceeded the expectations of the audience for this programme, despite listeners being accustomed to a robust level of debate from this particular presenter. Even taking into account the context of this programme such as the nature of the service, the audience expectations and the editorial content, Ofcom did not consider that this was sufficient justification for the offensive material. The broadcaster therefore failed to comply with generally accepted standards in breach of Rules 2.1 and 2.3 of the Code.” 13. No sanction or penalty was imposed either on Talksport or the applicant other than the publication of the decision. 14. The applicant was granted leave to judicially review Ofcom’s decision on the ground that it disproportionately interfered with his freedom of expression and infringed his rights under Article 10 of the Convention. Liberty intervened in the proceedings to support the applicant’s claim. 15. Although Ofcom’s decision was against the broadcaster, which had acknowledged that there had been a breach of the Code, the Divisional Court judge noted that the parties had (in his view, rightly) accepted that the applicant had standing to challenge it because it “enunciates an inhibition capable of affecting his unrestrained freedom to conduct radio interviews in the way in which he did on this occasion”. 16. As the applicant did not contend that the Broadcasting Code itself violated Article 10, the narrow question for the court to address was whether Ofcom’s findings had disproportionately interfered with the applicant’s rights under Article 10 of the Convention. The judge noted at the outset that the unchallenged statutory basis for Ofcom’s finding meant that it was prescribed by law and pursued the legitimate aim of the protection of others. With regard to the question of necessity, the judge accepted that as the broadcast was live the applicant had had no opportunity to edit or correct what he said once he had said it. Moreover, the subject of the interview was political and controversial and the person being interviewed was an elected politician who would expect to receive and tolerate a “rough ride”. It was therefore an interview where the applicant’s freedom of expression should be accorded a high degree of protection. Nevertheless, his freedom of expression did not extend to gratuitous, offensive insult or abuse without contextual content or justification. Applying these principles and giving due weight to Ofcom’s judgment, the judge considered that to call someone a “Nazi” was capable of being highly insulting. It accepted, however, that in the present case the first use of the word could have had some contextual justification, especially in light of the applicant’s use of it in his newspaper article, and could therefore be seen as an emphatic and pejorative assertion that M.S. was, in the matter of smoking and fostering children, one who imposes his views on others. Nevertheless, the court noted that after the applicant used the word, the interview degenerated and the applicant’s conduct of it became increasingly abusive, hectoring and out of control. His subsequent use of the word “Nazi” undoubtedly assumed the nature of undirected abuse and the expression “ignorant pig” was said “with such venom as to constitute gratuitous offensive abuse”. As a consequence the later part of the interview became abusive shouting which served to convey to listeners no real content at all. 17. The judge therefore concluded that, taking full account of the applicant’s Article 10 rights, Ofcom was justified in its conclusion. The broadcast was highly offensive to M.S and well capable of offending the broadcasting public. Moreover, its offensive and abusive nature was gratuitous, having no factual content or justification. As a consequence, the judge accepted that Ofcom’s finding constituted no material interference with the applicant’s freedom of expression at all. In this regard, he found it relevant, but not decisive, that no sanction or penalty was imposed on the broadcaster, let alone the applicant. 18. The applicant appealed to the Court of Appeal. With regard to the applicant’s standing, the court reiterated that it was “accepted that he had locus standi to [challenge Ofcom’s finding], unsurprisingly since it is obviously possible that the finding may have had an adverse impact on him and on his reputation as a journalist”. 19. The Court of Appeal accepted that there were a number of facts which supported the proposition that a tribunal should be slow to hold that what was said in an interview offended the provisions of paragraphs 2.1 and 2.3 of the Code: first, the interview in question was concerned with an issue of general public interest; secondly, the interview was a live discussion and was not pre-recorded; thirdly, the applicant was well known to be a hard-hitting and robust interviewer; and fourthly, the interviewee was a politician and he made no subsequent complaint. However, these factors did not mean that the interview could not be susceptible to a finding that it fell foul of paragraphs 2.1 and 2.3 of the Code. 20. In considering whether or not the interview offended paragraphs 2.1 and/or 2.3 the court considered it as a whole and in its context. It accepted that it would be wrong to focus too hard individually, let alone exclusively, on specific insults such as “health Nazi” and “ignorant pig”, the applicant’s hectoring tone and bullying manner, his persistent interruptions, his failure to let M.S. answer questions, or his treating one or more innocuous comments by M.S. as an insult. All those points had to be considered, together with the fact that the interview was permitted to run on for many minutes after it had become clear that it had got out of hand. 21. Nevertheless, the court concluded that the combination of the five concerns identified in the preceding paragraph rendered it impossible to accept that Ofcom’s finding, which contained no sanction other than the publication of the decision, represented an interference with the applicant’s rights under Article 10 of the Convention. Although the topic covered was of public interest, this point was of limited force in the context of an interview where the interviewee was not permitted to express his views or reasons. Moreover, while the interview was broadcast live, the applicant was not an inexperienced interviewee being provoked in the heat of the moment; rather, he was an experienced interviewer who had plainly decided to embark on a particularly aggressive assault on M.S. and his opinions. The fact that his style of interviewing was well known did not render the interview acceptable; nor did M.S.’s failure to complain. The court therefore concluded that Ofcom was right to find that Talksport had infringed paragraphs 2.1 and 2.3 of the Code. 22. Finally, with regard to the severity of the sanction, the court noted that Ofcom could have decided that the complaint had been resolved instead of finding that there had been a breach of the Code. However, it had rejected this option since this was not a case of inadvertent error, as Talksport had allowed the interview to continue for many minutes after it plainly got out of control, and there had been two previous findings against Talksport where producers had lost control of an interview or discussion. 23. That being said, having concluded that Ofcom rightly found that Talksport had infringed paragraphs 2.1 and 2.3 of the Code, the court found it impossible to contend that Ofcom’s decision to impose no other sanction than the publication of the report “even got near being disproportionate”. Furthermore, the court noted that from the point of view of the applicant, he had been dismissed before Ofcom’s finding was published and there was no suggestion that he had lost work or that his reputation as a journalist had been damaged. 24. The Court of Appeal therefore dismissed the applicant’s appeal. 25. The applicant applied for leave to appeal to the Supreme Court. The Supreme Court refused permission in a decision dated 1 November 2011, sent to the applicant under cover of a letter dated 2 November 2011. 26. Broadcasting standards are governed by the Communications Act 2003 (“the 2003 Act”), which requires them to be implemented, supervised and enforced by Ofcom. 27. Section 3(2)(e) of the 2003 Act places a duty on Ofcom to secure the application by all television and radio stations of standards that “provide adequate protection to members of the public from the inclusion of offensive and harmful material” in broadcast programmes. 28. Section 319 of the 2003 Act obliges Ofcom to set up a “standards code” for radio and television services which is “calculated to secure” the so-called “standards objectives”. These objectives include, at section 319(2)(f), that “generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material”. Ofcom is also obliged by section 324 of the 2003 Act to “establish procedures for handling and resolution of complaints about the observance of [those] standards”. 29. This code, known as the Broadcasting Code (“the Code”), states in terms that it has been drafted in the light of the right to freedom of expression as expressed in Article 10 of the Convention, which encompasses a broadcaster’s right to disseminate, and an audience’s right to receive, creative material, information and ideas without interference, but subject to restrictions prescribed by law and necessary in a democratic society. 30. Paragraph 2.1 of the Code provides that generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive materials. Paragraph 2.3 of the Code states that, in applying generally accepted standards, broadcasters must ensure that material which may cause offence is justified by the context. Such material may include, among other material, offensive language. 31. Section 111 of the Broadcasting Act 1996 precludes Ofcom from entertaining a complaint of unfair treatment unless made by the person affected or by a person authorised by him to make the complaint for him. 32. Pursuant to sections 109 – 111 of the Broadcasting Act 1990, where there has been a breach of the Code Ofcom could take a range of possible measures: publish its finding indicating that a breach of the Code has taken place; direct that the broadcaster transmits a correction or a statement of Ofcom’s finding; impose a financial penalty on the broadcaster; or shorten, suspend or revoke the broadcaster’s licence. | 0 |
test | 001-142410 | ENG | HUN | COMMITTEE | 2,014 | CASE OF CSABUDA v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | András Sajó;Egidijus Kūris;Helen Keller | 4. The applicant was born in 1953 and lives in Diósjenő. 5. In 1996 the applicant filed for divorce and division of matrimonial property. The case was processed at first instance by the Balassagyarmat District Court and the Vác District Court; and at second instance by the Nógrád County Regional Court and the Győr-Sopron-Moson County Regional Court. The procedure ended on 6 July 2012. | 1 |
test | 001-164190 | ENG | HUN | COMMITTEE | 2,016 | CASE OF HARASZTHY AND OTHERS v. HUNGARY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek | 1. The case originated in an application (no. 71256/11) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Hungarian nationals, Mr László Haraszthy, Mr György László Márton, Mr Gábor Horn, Ms Nóra Siska, Mr Zoltán Pintér and Ms Mária Terézia Oszter (“the applicants”), on 11 November 2011. 2. The applicants were represented by Mr I. P. Horváth, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice. 3. On 31 August 2015 the applicants’ complaints under Article 1 of Protocol No. 1 to the Convention concerning the imposition of 98% tax on their severance payment were communicated to the Government. | 1 |
test | 001-181860 | ENG | HRV | COMMITTEE | 2,018 | CASE OF TILOCCA v. CROATIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Kristina Pardalos;Pauliine Koskelo;Ksenija Turković | 5. The applicant was born in 1963 and currently lives in Alexandria (Egypt). 6. On 15 February 2010, while crossing the border between Serbia and Croatia with his wife, the applicant was caught by the Croatian customs authorities carrying the sum of 563,300 euros (EUR) which he had failed to declare, contrary to the law. The customs authorities immediately seized the EUR 560,000. 7. On the same day the customs authorities instituted administrativeoffence proceedings (prekršajni postupak) against the applicant before the Financial Inspectorate of the Ministry of Finance (Ministarstvo financija, Financijski inspektorat – “the Ministry”) for failing to declare EUR 560,000 – a sum exceeding EUR 10,000 – an administrative offence defined in section 40(1) of the Foreign Currency Act and section 74 of the Prevention of Money Laundering and Financing of Terrorism Act. 8. In his defence, the applicant explained that he and his wife had been visiting her daughter in Serbia who had recently had a serious attack of epilepsy, and submitted documentary evidence suggesting that his wife’s daughter did indeed suffer from epilepsy. The money he had been carrying originated from: (a) a company called SCI (société civile immobilière) M. registered in France, of which he was the director and the only member, from whose account he had withdrawn EUR 326,008.03 with a view to starting another business; and (b) the sale of their house in France (the remaining amount). The applicant submitted relevant documents as evidence of those transactions. He also explained that he had not wished to deposit the money in a bank account because, in the wake of the global financial crisis of 2007-2008, he had been afraid that his bank would go bankrupt and that he would lose most of that money, given that the French State only guaranteed up to EUR 50,000 of bank deposits. 9. During the proceedings the Ministry requested information from the relevant authorities in Serbia, France and Italy. While the Italian authorities did not reply at all, the Serbian authorities informed the Ministry that neither the applicant nor his wife had been recorded in their register of suspicious transactions, and the French authorities only confirmed the authenticity of the transactions on which the applicant relied to prove the origin of the money he had been carrying. 10. By a decision of 9 July 2010 the Ministry found the applicant guilty of having committed the administrative offence in question and fined him 5,000 Croatian kunas (HRK). At the same time, the Ministry imposed a protective measure (zaštitna mjera) confiscating EUR 318,500 under section 69(2) of the Foreign Currency Act. 11. On the basis of the documentary evidence, the Ministry established that: (a) the company SCI M. had been founded in 2002 and recorded in the business and companies register in Strasbourg, and under French law its members were liable for its debts in proportion with their share in the company, that is, the applicant in respect of 99.75% and his wife in respect of 0.25%; (b) on 6 July 2009 the applicant had indeed sold his house in France, and EUR 243,091.82 from the proceeds of sale had been paid into his bank account on 29 July 2009, from which he had first transferred EUR 30,000 to his company’s account on the same day and then withdrawn EUR 211,500; and (c) on 21 December 2009 the applicant, acting as the company’s director, had sold its real estate, and EUR 326,008.03 from the proceeds of sale had been paid into the company’s bank account on 19 January 2010, a sum which had been withdrawn by the applicant the next day. 12. The Ministry held that the origin of the money which the applicant had failed to declare was irrelevant in relation to the commission of the offence of which he had been convicted or the imposition of the fine. However, that consideration was relevant in relation to the imposition of the protective measure of confiscation. 13. In particular, the Ministry decided not to confiscate EUR 241,500 of the money which the applicant had not declared, because it found that this sum did indeed originate from the sale of his house in France. 14. As regards the remaining EUR 318,500 (of the EUR 560,000 which had been seized), the Ministry held that this sum was part of the funds which the applicant had withdrawn from his company’s bank account (EUR 326,008.03) on 20 January 2010 (see paragraph 11 above). The Ministry further held that: (a) since there was no evidence that the applicant had borrowed that money from his company, by carrying it across border he had disposed of it as if it had belonged to him, which amounted to misappropriation of the company’s funds, an offence punishable in every country; and (b) he had failed to pay the relevant taxes in France on that amount. It therefore decided to confiscate that sum. 15. The applicant appealed by arguing that: (a) the evidence collected indicated that the French authorities had been aware of the transaction from which the confiscated sum originated, but had done nothing about it, which suggested that they considered that it originated from a legitimate source, (b) the Ministry correctly assumed that he had not borrowed the confiscated sum from his company, as he had actually lent EUR 358,600.81 to his company in 2008 and 2009, for which he had submitted documentary evidence; (c) under French law, he was fully liable for the debts of his company, the payment of which, including taxes, he therefore could not have avoided by misappropriating the company’s funds as the Ministry implied; (d) the Ministry had attempted to interpret foreign (French) law, and in such a complex area as tax and commercial law, about which it had known very little; and (e) it was peculiar that the Ministry had confiscated for the benefit of the Croatian State budget the amount on which he had, in the Ministry’s own view, not paid the relevant taxes in France. 16. By a decision of 17 September 2010 the High Court for Administrative Offences (Visoki prekršajni sud Republike Hrvatske) dismissed the applicant’s appeal and upheld the Ministry’s decision, endorsing the reasons given therein. 17. The applicant then, on 17 December 2010, lodged a constitutional complaint, alleging, inter alia, a violation of his constitutionally protected right of ownership. 18. By a decision of 17 November 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible and served its decision on his representative on 2 December 2012. It found that, even though the applicant had relied on the relevant Articles of the Constitution in his constitutional complaint, he had not substantiated his complaint by any constitutional-law arguments, but had merely repeated the arguments raised in the proceedings before the Ministry and the High Court for Administrative Offences. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint. | 1 |
test | 001-149200 | ENG | POL | COMMITTEE | 2,015 | CASE OF MASŁOWSKI 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 1967 and is currently detained in Łódź Remand Centre. 6. On 29 November 2006 the applicant was arrested on suspicion of committing a number of offences in an armed organised criminal group. 7. On 6 December 2006 the Łódź District Court (Sąd Rejonowy) remanded the applicant in custody until 28 February 2007. The court relied on a strong suspicion that the applicant had committed the offences he had been accused of. The risk of the applicant fleeing was also taken into account as a ‘wanted’ notice (list gończy) against him had been issued in October 2006. At that time he had not been residing at his permanent address and his whereabouts had not been established. The court further anticipated a heavy prison sentence to be imposed on the applicant if convicted. 8. The applicant’s pre-trial detention was extended by the Łódź Regional Court (Sąd Okręgowy) on 27 February 2007, 26 June 2007 and on 19 September 2007. Subsequently, it was extended by the Łódź Court of Appeal (Sąd Apelacyjny) on 21 November 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008. In their decisions to extend the applicant’s pre-trial detention the courts relied on a reasonable suspicion, supported by evidence given by witnesses and other members of the criminal group, that the applicant had committed the offences in question. The courts further emphasised the risk of the applicant fleeing or obstructing the proceedings and the likelihood of a heavy prison sentence being imposed on him if convicted. The domestic courts attached importance to the complex character of the case, to the complex structure of the criminal group and the number of suspects involved and the necessity of collecting additional evidence for the inclusion in the already voluminous case file. 9. 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 drug-trafficking committed 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. 10. 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. 11. 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. 12. The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the coaccused and due to problems with sound system in the court room. 13. In May 2010 the Regional Court gave a severance order and decided to determine charges against two co-accused separately. 14. The bill of indictment was only finally read out to the defendants at the hearing held on 27 May 2010. 15. 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 judge lodged by one of the co-accused. 16. 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. 17. Meanwhile, on 17 August 2011 the Łódź Regional Court ordered that the applicant’s detention on remand be lifted on condition that he paid the bail in the sum of 20,000 Polish zlotys (PLN) within the period of two weeks from the date of the decision. On the same date the applicant was released on bail and police supervision. He was also prohibited from leaving the country. 18. 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 witnesses. 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. 19. Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants. 20. The criminal proceedings against the applicant are still pending before the first-instance court. 21. 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 PLN 20,000 in compensation. 22. 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 | 001-183867 | ENG | CYP | CHAMBER | 2,018 | CASE OF KAHADAWA ARACHCHIGE AND OTHERS v. CYPRUS | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Pere Pastor Vilanova | 6. The applicants were born in 1974, 1978 and 1980 respectively. They all live in Sri Lanka. The first applicant lives in Colombo, the second applicant in Kochchikade, and the third applicant in Pannipitiya. 7. The applicants all went to Cyprus for employment purposes. 8. The first applicant arrived in Cyprus on 20 April 2001 in order to take up employment as a domestic worker. He was granted a temporary residence permit, initially until 20 April 2005. This was renewed until 10 May 2011. 9. The residence permit stated that it could be revoked at any time with fourteen days’ prior notice to the holder. 10. During the above period the applicant left Cyprus twice to go back to Sri Lanka: on 12 November 2001 and in January 2004. The first time, he stayed in his home country for about eleven months, and the second time, he stayed for just over a month. On 21 February 2004, during his second visit home, he married a Sri Lankan national. 11. His wife joined him in Cyprus on 16 September 2004, in order to work as a housemaid. She was granted a temporary residence permit until 16 September 2008. 12. On 13 December 2007 their daughter was born. 13. On 17 September 2008 the first applicant’s wife abandoned her work and her place of residence. Her whereabouts at the time were not known to the authorities. She had not applied for the renewal or extension of her temporary residence permit, which had expired the day before. 14. On 10 December 2008 all competent authorities were given orders by the Police Aliens and Immigration Unit to trace the first applicant’s wife. 15. On 30 November 2010 a lawyer acting on behalf of the first applicant’s wife wrote to the Minister of the Interior requesting a visitor’s residence permit for her based on humanitarian grounds, a permit of the same duration as that held by her husband. The lawyer noted that the couple had a young daughter, that both the wife and the daughter were supported by the first applicant, and that she could not return to Sri Lanka without him, as she did not have family there with whom she and her daughter could stay. She also needed time to obtain travel documents for their daughter. The lawyer informed the authorities that the couple’s intention was that the whole family would return to Sri Lanka upon the expiry of the first applicant’s temporary residence permit. 16. The second applicant arrived in Cyprus on 5 February 2010 and was granted a temporary residence permit until 4 May 2010. This was renewed until 19 October 2011. 17. The residence permit stated that it could be revoked at any time with fourteen days’ prior notice to the holder. 18. The third applicant arrived in Cyprus on 4 March 2002. He was granted a temporary residence permit until 3 May 2002. This was renewed until 12 February 2009. Following the expiry of his permit, he remained in Cyprus on an irregular basis. The third applicant submitted that he had applied for a renewal of his permit. 19. The residence permit stated that it could be revoked at any time with fourteen days’ prior notice to the holder. It also stated that it was final and non-renewable. 20. According to the first and second applicants, on 6 January 2011, while in the first applicant’s car, they passed through the Ayios Dometios district of Nicosia and saw a group of Sri Lankans. They got out of the car and saw people holding swords and iron rods. Fearing for their lives, they abandoned the car and ran in different directions. The second applicant was injured during the clashes: his index finger was cut off and his middle finger injured. After the clashes, the first applicant took the second applicant to the Nicosia General Hospital, where the latter underwent surgery. According to the second applicant, the police came to the hospital and arrested him. He remained in the hospital after the operation, and on 9 January 2011 he was taken to Lakatamia police station, where he was detained. According to the first applicant, on the morning of 7 January 2011 six people who had taken part in the clash attacked his residence and threatened to kill him if he went to the police. However, half an hour later, when he went to the police station to report the incident, he was arrested and detained on suspicion of being involved in the clashes. 21. According to the third applicant, he was also passing by that area with his car and stopped to see what was going on, but, fearing for his life, he ran away and left his car behind. He informed his employer and the latter informed the police about the clash. The police asked the third applicant to come to the police station to make a statement and take his car back. On 7 January 2011 the third applicant went to Lakatamia police station and was arrested and detained on suspicion of being involved in the clashes. 22. On the evening of 6 January 2011 the police received information that about twenty aliens carrying offensive weapons (swords, clubs and Molotov cocktails) were in the Ayios Dometios district of Nicosia. The police immediately went to the site and discovered that a number of aliens had attempted to set fire to a house there by throwing Molotov cocktails at it. The police carried out an investigation into the events. They examined and collected evidence found in the area (including the first and third applicants’ cars). They reached the conclusion that the applicants, along with six other individuals from Sri Lanka, were likely to have been involved in the clash. A number of suspects, including the second applicant, had sustained injuries which had been treated at Nicosia General Hospital. 23. On 7 January 2011 the police arrested all nine Sri Lankans, including the applicants, on the basis of arrest warrants issued on the same day by the Nicosia District Court under section 18 of the Criminal Procedure Law (Cap. 155) and Article 11(3) of the Constitution, on reasonable suspicion that they had taken part in a fight in a public place, contrary to section 89 of the Criminal Code (Cap. 154). 24. On 8 January 2011 the Nicosia District Court convened at Nicosia General Hospital. The applicants were remanded in custody for six days under section 24 of the Criminal Procedure Law and Article 11(5) and (6) of the Constitution, to enable the investigation into the commission of various criminal offences to be concluded. The offences included: intending to inflict grievous bodily harm, unlawful wounding, an unlawful attempt to set fire to a building, and taking part in a fight in a public place (sections 228, 315 and 89 of the Criminal Code). The first applicant was detained in Paphos Gate police station in Nicosia, and the second and third applicants in Lakatamia police station. 25. On 13 January 2011 the police investigation file, which included written statements by the applicants concerning the incident, was transmitted to the Attorney General. The Nicosia Crime Investigation Department informed the Attorney General that that there was sufficient evidence against all the nine individuals arrested, including the applicants, in relation to the offence of taking part in a fight in a public place contrary to section 89 of the Criminal Code, but not as regards the remaining offences, which were more serious. The third applicant had also committed the offence of staying in Cyprus unlawfully, as his temporary resident permit had expired on 12 February 2009. At the suggestion of the police, the Attorney General decided not to prosecute the applicants, but to deport them instead. 26. On 14 January 2011 the residence permits of the first and second applicants were revoked by the Director of the Civil Registry and Migration Department under section 6 of the Aliens and Immigration Law (Cap. 105), on the grounds that their conduct had posed a danger to the public order of the Republic. Deportation and detention orders were issued against the applicants on the same day: under section 6(1)(g) of the above Law in respect of the first and the second applicants, on the grounds of public order, and under section 6(1)(k) in respect of the third applicant, on the grounds of unlawful stay. 27. On the same day three letters were prepared by the Minister of the Interior informing the applicants of the decision to detain and deport them. The letters stated that the applicants were illegal immigrants: the first and second applicants under section 6(1)(g) of the Aliens and Immigration Law, because their “conduct had been considered dangerous for reasons of public order”, and the third applicant by virtue of section 6(1)(k), on the grounds of “illegal stay”. Consequently, their temporary resident permits had been revoked and deportation and detention orders had been issued against them. 28. Consequently, on 14 January 2011, upon the expiry of the remand warrant, the applicants were released but re-arrested at once on the basis of the deportation and detention orders that had been issued against them. The Government submitted that, in accordance with standard police practice, the applicants would have been informed orally of the decision not to prosecute them and the decision to deport them. Although the Government did not have evidence as to the exact date on which the applicants were notified of the letters of 14 January 2011 or the exact manner in which they were notified, this happened sometime between 14 and 18 January 2011. 29. On 18 January 2011 a Cypriot lawyer acting on behalf of the applicants sent two letters by fax to the Minister of the Interior, referring to the letters of 14 January 2011 sent to the applicants. He objected to the deportation of the first and second applicants; he also requested a review of the decision taken with regard to the third applicant. The lawyer requested a meeting to discuss the matter with the above-mentioned Minister. 30. The Government submitted that the applicants’ case had then been reviewed by the Minister of the Interior, who had noted their lawyer’s objection, read the administrative file and maintained the decision to deport the applicants. 31. Although the first applicant called his wife several times during his detention, she did not come to visit him at the police station. 32. The first and third applicants were deported on 19 January 2011 and the second applicant was deported on 21 January 2011. 33. There were signed notes by a police officer on the copies of the letters of 14 January 2011 stating that the letters had also been served on the applicants on the day they were deported. 34. The applicants were included on the authorities’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring). 35. The documents submitted by the Government indicate that the first applicant’s wife continued to stay in Cyprus illegally following her husband’s deportation. On 3 December 2012 she lodged an asylum application, which was dismissed on 31 January 2013. She left Cyprus for Sri Lanka on 5 July 2013 and she was included on the authorities’ “stop list” (see paragraph 34 above). She returned to Cyprus that same month with a new passport with different identity details, and was granted a residence and employment permit until 15 November 2016. However, the authorities realised that she was the same person and arrested her on 10 September 2014 with a view to her deportation. No further details have been given by the Government in this respect. | 1 |
test | 001-144138 | ENG | CHE | CHAMBER | 2,014 | CASE OF BUCHS v. SWITZERLAND | 3 | Preliminary objection dismissed (Article 37-1-b - Matter resolved);Remainder inadmissible;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) | Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 6. The applicant was born in 1960 and lives in Cully, Canton of Vaud. 7. The applicant is the father of three children. His eldest daughter, born in 1986, is from a former relationship and lives with him. In 1995 the applicant married his (now ex-)wife, with whom he had two more children, born in 1996 and 1999. 8. The applicant and his wife separated in 2002. The separation was pronounced by the Civil Court of the District of East Vaud (Tribunal Civil de l’Arrondissement de l’Est Vaudois – hereinafter “the Civil Court”) on 16 May 2002 and the mother was given custody (garde) of the two children, particularly in view of their young age (the younger child was three at the time of the decision). In turn, the applicant was granted extensive contact rights, which he had to exercise by agreement with his wife. He confirmed that since then his children usually stayed with him every Thursday after school until Friday morning, and every other week, from Thursday after school until Monday morning. Additionally, they spent half of the school holidays – around seven weeks a year – with him. He calculated that that amounted to approximately 42% of the time. His daughter from his former relationship resided with him. 9. On 11 January 2005 the applicant filed for divorce with the Civil Court. After his wife’s reply to the court on 8 March 2005, the couple submitted a joint petition for divorce on 17 January 2006. In addition, both parties applied for sole parental authority (autorité parentale exclusive) over and custody of the children. 10. In order to decide to whom parental authority should be awarded, the Civil Court commissioned an expert opinion from the psychiatry and psychotherapy service for children and adolescents in the Canton of Vaud. The expert’s report, based on several interviews with the parents as well as with the children, was issued on 18 July 2006. It revealed that owing to major disagreements between their parents, both children were caught in conflicts of loyalty towards them, which they tried to resolve by wishing to divide their time equally between the parents. Furthermore, while the applicant wished for shared parental authority (autorité parentale conjointe) for the children, his wife opposed it. She justified her opposition by alleging that the applicant had attempted to pressure her and had made incessant requests regarding the children. She feared that he would use shared parental authority to increase his influence over the children in order to distance them from her. In this regard, she also mentioned that he had used inappropriate strategies to obtain custody of his eldest daughter, who was living with him, and had influenced the daughter negatively against her mother. However, the applicant’s wife was largely in favour of the children maintaining contact with their father and supported his extensive contact rights. Regarding the applicant, the expert observed that while he acknowledged that he had regular contact with his children, he had also expressed the feeling that he was not accepted as the other parent and had been made to feel like a mere “paying father”. The expert also noted that the couple disagreed on many child-related issues, which had had a negative impact on the children. In view of the fact that the applicant’s wife was a good mother and had shown her willingness to cooperate with the applicant, the expert recommended that parental authority be awarded to her and that the applicant be granted extensive contact rights. Furthermore, the youngest child had expressed the wish to stay close to his mother and the children were socially well integrated at their mother’s place and at the local school. 11. The applicant contested the expert opinion and the Civil Court therefore ordered a second one. On 31 March 2008 the second expert, also specialised in child and adolescent psychiatry and psychotherapy, confirmed the findings of the first expert. He based his findings on numerous documents received from the Civil Court and the parents, as well as on various interviews conducted with all the family members. At the outset he observed that despite the fact that two years had elapsed between the drawing up of the first and second expert reports, the applicant and his wife had maintained their conflict and had been unable to find any common ground for agreement regarding the children. Furthermore, they both had difficulties recognising each other’s parenting abilities. Nevertheless, the expert acknowledged that both parents had good parenting skills and were able to create an adequate environment for their children. Owing to the ongoing tensions between them, however, the expert found that there was no common ground for shared parental authority and custody and that that would therefore not be in the best interests of the children, who were still caught in conflicts of loyalty towards their parents. The expert further recommended that the applicant should not be awarded sole parental authority over the children. In his view, the applicant still appeared to be very affected by the divorce proceedings. He had criticised the parenting skills of the children’s mother on various occasions and had shown that he had difficulties in distinguishing his feelings towards her from those aroused by the separation from his children. Despite having exercised extensive contact rights with the full support of his wife, he still claimed that he sometimes felt like a mere “paying parent”. In that context, the expert also mentioned the inappropriate ways in which the applicant had obtained custody of his eldest daughter. The expert concluded that it was in the best interests of the children for the courts to award parental authority to the mother and to maintain the applicant’s extensive contact rights. That solution would furthermore provide continuity for the children. 12. Following that expert opinion, the applicant informed the Civil Court by letter of 27 May 2008 that he was withdrawing his application for parental authority and custody. At the subsequent hearing, the Civil Court questioned various witnesses, who testified that the applicant was fully exercising his contact rights and was undertaking many activities with the children. They also stated that the parents’ relationship had remained conflictual and that the applicant felt much more animosity towards his exwife than she did towards him. By a final judgment of 15 December 2009 the Civil Court pronounced the divorce of the parties and awarded parental authority over and custody of the children to the mother, while maintaining the applicant’s previous extensive contact rights. 13. On 9 January and 2 February 2010, the applicant lodged a “partial appeal” against the Civil Court’s judgment with the Appeal Court of the Canton of Vaud (le Tribunal Cantonal, chambre des recours, Canton de Vaud - hereinafter “the Appeal Court”). He complained that the granting of parental authority to his ex-wife by the Civil Court was not in accordance with the European Court’s judgment in the case of Zaunegger v. Germany (no. 22028/04, 3 December 2009). He claimed that parental authority could not be withdrawn from a father who had, since the separation from his wife in 2002, extensively proved his parenting abilities. He reproached his ex-wife for behaving inappropriately towards the children in several respects and claimed that that was why he disagreed with the award of sole parental authority to her. Lastly, he stated that he no longer had the financial means to be represented by a lawyer. 14. The Appeal Court dismissed the applicant’s appeal by a judgment of 9 February 2010, ruling that under Article 133 § 1 of the Swiss Civil Code (hereinafter “the Civil Code” – see paragraph 20 below), on divorce proceedings, parental authority could only be awarded to one of the parents. The maintenance of shared parental authority would require, under Article 133 § 3 of the Civil Code (see paragraph 20 below), a joint request by both parents, and shared parenting could not be imposed on a parent who opposed it, such as the mother in the present case. The Appeal Court also found that despite the applicant’s criticism of his ex-wife’s parenting abilities, there were no grounds for changing the award of parental authority. Furthermore, such a solution would be contrary to the experts’ findings. As provided for in Article 133 § 2 of the Civil Code (see paragraph 20 below), the judge’s paramount consideration when deciding on parental authority was what was in the child’s best interests. All relevant circumstances had to be taken into account, including any possible joint request by the parents for shared parental authority and, where possible, the children’s views. In cases such as the present one, in which experts had recognised that both parents had good parenting abilities, a parent’s willingness to cooperate with the other parent in the children’s best interests was conclusive. As shown by the experts’ opinions before the Civil Court, it had been the mother in the present case who had shown fewer difficulties in cooperating with the father. The Appeal Court therefore upheld the Civil Court’s judgment. 15. In his appeal to the Federal Supreme Court, the applicant held that, owing to Article 133 § 1 of the Swiss Civil Code (see paragraph 20 below) and his wife’s refusal to make a joint request, he had not been given the opportunity to apply to the domestic courts for shared parental authority. Referring to the case of Zaunegger (cited above), he stated that every father should be able to apply to the domestic courts for shared parental authority, even if the mother was opposed to it, as that was in the children’s best interests. 16. The Federal Supreme Court dismissed the applicant’s appeal on 11 August 2011. It held that it was doubtful whether the applicant had sufficiently substantiated his appeal. Even assuming that he had done so, his case differed substantially from Zaunegger (cited above). First, while in Zaunegger the parents had not been married, in the present case the applicant was a divorced father. Second, Swiss law not only provided that the applicant, like his (ex-)wife, could apply for sole parental authority but both parents had also been treated equally. Unlike the German law regarding parents of children born out of wedlock, as established in Zaunegger, Article 133 § 1 of the Swiss Civil Code (see paragraph 20 below) did not privilege one of the parents on the basis of his or her sex when awarding parental authority, and the mother had no right to veto the father’s request in this regard. Under Article 133 § 3 of the Swiss Civil Code (see paragraph 20 below), the decision was based solely on the children’s best interests. The Federal Supreme Court concluded that the applicant’s case could not be compared to Zaunegger because there was no indication that he had been treated differently, when deciding on parental authority, from the children’s mother. 17. On 21 June 2013 the Swiss Parliament adopted amendments to the Civil Code provisions on parental authority, which will enter into force on 1 July 2014. Accordingly, shared parental authority will be the rule, independently of the parents’ civil status. To continue with shared parental authority after divorce will hence no longer require a joint request by the parents. However, if the judge considers that it is in the child’s best interests, parental authority can still be awarded to only one parent. The implementation provisions of this amendment to the Civil Code further provide that in cases decided under (former) Article 133 of the Civil Code (see paragraph 20 below), where parental authority had been awarded to only one of the parents, the other parent or both together can apply to the child protection authority for shared parental authority. Moreover, the parent from whom parental authority had been withdrawn in the divorce proceedings may also apply to the court on his or her own motion if the divorce was finalised after 1 July 2009. | 0 |
test | 001-159211 | ENG | NOR | CHAMBER | 2,015 | CASE OF KRISTIANSEN v. NORWAY | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev | 5. The applicant was born in 1984 and lives in Borgenhaugen. 6. On 18 September 2008 the Sarpsborg City Court (tingrett) convicted the applicant inter alia on a charge of attempted rape committed against Ms A during the night of 9 March 2008 in a car parked near a petrol station. At the time Ms A and the applicant had been seventeen and twenty-three years old, respectively. Together they had left a party at Mr C’s home in order to buy mineral water at the petrol station. The applicant had borrowed the car from Mr D, Ms A’s boyfriend. They had both attended a party at Mr C’s home one week before but they did not know each other. The applicant and Ms A had been sitting in the car talking and listening to music for a while before they had decided to return to the party. As the car’s battery was flat it would not start. The applicant had called a friend, Mr B, who worked as a taxi driver and who collected him and Ms A and brought them back to Mr C’s home. The City Court did not find credible the applicant’s explanation that he and Ms A had kissed and to a little extent touched one another voluntarily and that he had not forcibly attempted to rape her. 7. By a judgment of 5 February 2009, the Borgarting High Court (lagmannsrett), hearing the applicant’s appeal with a jury, convicted him on the attempted rape charge and sentenced him to one year’s imprisonment on account of this (and a number of other offences of which he had been charged in the same proceedings). It ordered him to pay 60,000 Norwegian kroner (NOK) (approximately 7,500 euros at that time) in compensation to Ms A for non-pecuniary damage. 8. In its reasoning the High Court described in detail how the applicant, after he had called Mr B (who could not come straight away), had attempted to obtain sexual contact with Ms A by force. It stated that in the beginning, when the applicant had tried to kiss and touch her, Ms A had told him that she was not interested because she was the girlfriend of Mr D and slapped the applicant. The applicant had not stopped, but had moved himself over to her seat and held her arms behind the neck support. Ms A tried to defend herself and after a while the situation involved into a fight between them, in which she had been physically inferior and had to come to terms with the situation. The applicant had had such control over Ms A that he was also able to call Mr B again and the fact that Mr B was on his way had not hindered the applicant from continuing, until the moment when the lights from Mr B’s car appeared. 9. The High Court also noted that Mr B had testified that he had not noticed anything conspicuous about Ms A; she had been cheerful and friendly and her clothes had not been in disorder. However, this did not suggest, in the High Court’s view, that she had not been exposed to sexual abuse causing a great burden on her. She had managed to pull herself together when Mr B had arrived. Her reaction had been expressed vis-à-vis others only when she and the applicant had returned to Mr C’s home, where Ms A cried and was in great despair. Her boyfriend, Mr D, had understood that something was very wrong. After opening herself gradually to him, she had explained what had happened. 10. During a pause in the oral proceedings before the High Court, after both Ms A and the applicant had been heard, one of the jurors –“J” – had informed the presiding judge of the High Court about her previous contacts with Ms A. When the hearing resumed after the break, the presiding judge informed the public prosecutor, counsel for the defence and Ms A’s assistant advocate (bistandsadvokat) about the matter. Counsel for the defence requested that J be disqualified from taking part in the further proceedings on grounds of lack of impartiality. Ms A’s assistant advocate (bistandsadvokat for offeret) supported counsel’s motion. The public prosecutor expressed understanding for the motion without taking a stance. 11. The applicant’s contestation of J’s impartiality was made with reference to section 108 of the Administration of Courts Act (domstolloven – see paragraph 23 below) and Article 6 § 1 of the Convention. According to the relevant court record, counsel for the defence had stated: “Counsel stated that he had been informed by the High Court’s presiding judge and the other members of the court, that [J] [who was a member of the jury] had informed the presiding judge that she was the foster mother of a child who had been a pupil in the same school class as the victim, and that she had had contacts with the victim in connection with birthday celebrations at her home. [J] thought that she could recall knowing that the victim had participated in class outings which [J] had attended as a parent. The presiding judge had further informed counsel that [J] did not have any further personal knowledge of the victim, but she had a personal view [bilde] of her as a calm girl. Last time there had been any contact between the victim and [J] dated far back in time.” 12. The High Court withdrew to deliberate on the issue and decided that J ought not to withdraw. It pointed out that a member might be disqualified if the person in question had particular reasons for identifying himself or herself with the victim or if there were any other circumstances to the effect that he or she had a prejudging attitude because of prior knowledge of the victim. However, that was not the situation in the present case. The High Court observed that “the jury member had formed a picture [bilde] of the victim from many years ago where she at the time had experienced her as a quiet and calm person”. However, it could not see that this was capable of influencing J’s attitude to the sustainability of the victim’s explanation and J’s assessment of the question of guilt in the case. In particular the contact had been sporadic many years ago and the High Court did not find that such a contact was capable of influencing, in one way or another, the assessment in the criminal case. The High Court had special regard to the fact that the parties to the case had requested that J recuse herself, but it found the absence of partiality so clear in this case that this could not be decisive. 13. Consequently, juror J took part in the entire trial before the High Court, including the jury’s deliberations and vote on the questions put to it by the presiding judge on the charge of attempted rape. After the jury had answered the questions in the affirmative and the professional judges had confirmed the jury’s verdict, she took part, together with the other two jurors selected by drawing of lots, in the deliberations with the professional judges on the question of sentencing and award of compensation of non-pecuniary damage to the victim Ms A. 14. The applicant appealed against the High Court’s procedure to the Supreme Court (Høyesterett), arguing that J’s participation had been incompatible with section 108 of the Administration of Courts Act and Article 6 § 1 of the Convention. 15. By a judgment of 26 June 2009 the Supreme Court, by three votes to two, rejected the applicant’s appeal. 16. The majority did not consider that J’s knowledge of the victim from her attendance at birthday parties and class outings with the victim in itself indicated an identification with the victim or weakened in any other way the confidence in J’s impartiality. It had involved sporadic contacts, not a personal knowledge, and the contacts dated several years back in time. Neither had counsel for the defence alleged before the Supreme Court that this was a sufficient ground for disqualification. 17. Nor could the mere fact that the juror in question had formed a picture of the victim disqualify her. When it was deemed acceptable that a juror may have some prior knowledge of a victim, it ought also to be accepted that the juror has formed a picture of the latter. Therefore, the question was whether the fact that the juror had stated this to the presiding judge and the matter had thereafter been repeated by the defence counsel in open court would bring the matter into a different light. 18. In the majority’s view, a statement that one had a picture of a young woman one had previously met when she was younger, as a quiet and calm girl, could hardly be perceived as an expression of an assessment of the person’s credibility or give the impression of identification with, or particular sympathies for, her. This was a neutral value judgment; an observation about the child’s inconspicuous conduct. It could possibly be maintained that one could draw the conclusion that a calm girl would hardly make a fuss without any justifications for doing so, which suggested that Ms A’s crying and despair after she returned after the drive was a sign that she had actually been exposed to an attempted rape. However, there was no basis for such a conclusion and there was in any event no reason for attaching weight to such a possibility. J’s information about Ms A had emerged after she had given evidence to the High Court for one hour. At that point, the jury, including J, had a good opportunity to form an independent and updated picture of the victim as a person. That defence counsel and the assistant advocate had requested that J withdraw could not be decisive. Accordingly, there were no particular circumstances capable of calling into doubt J’s impartiality for the purposes of section 108 of the Administration of Courts Act, as interpreted in the light of Article 6 of the Convention. 19. The minority considered that the assessment of the impartiality issue ought to take as a starting point that the case concerned a serious and stigmatising accusation against the defendant. There was a lot at stake for the victim, as she could easily perceive a verdict acquitting the defendant to mean that the jury believed that she had made an unfounded and serious accusation against the defendant. The minority shared the majority’s view (see paragraph 16 above) that previous contacts between the victim and J could not, of their own, disqualify the latter. What was decisive was whether J’s statement made after she had heard the evidence given by the accused and the witness describing the latter as a “quiet and calm person” would lead to a different conclusion. In this regard, the minority took as a starting point that the credibility of the victim was the decisive evidence in this case. An additional factor of lesser importance was how the surrounding persons had perceived the victim’s behaviour after the alleged rape attempt. 20. The timing of J’s statement was of considerable importance. For the persons present in court it could seem conspicuous that the juror, after having heard both the accused and the victim’s evidence, had not confined herself to informing about her previous contacts with A but had found it correct to add that she had experienced the victim as a “quiet and calm person”. The timing of J’s affirmation could easily have given the impression that J expressed a positive assessment of the victim. 21. Whilst a literal interpretation of “quiet and calm person” was not directly related to the credibility assessment, the affirmation was positively loaded and, when expressed just after the victim had given evidence, could at least easily have been perceived as if, according to J, one had to do with a person who would not make a fuss and thus would not make a false accusation about an attempt of rape. That J had expressed a view on how she had perceived her “at the time”, was of secondary importance. This was a nuance that could easily be overlooked by a person overhearing her statement and which, having regard to the timing, could hardly be perceived as a reservation with regard to A’s current character. 22. An important, albeit not decisive, consideration under section 108 of the Administration of Courts Act was also the fact that both counsel for the defence and the assistant advocate had demanded that J recuse herself. Under Article 6 § 1 of the Convention, “the standpoint of the accused [was] important but not decisive”; in this case the “fear” of lack of impartiality by the applicant had been “objectively justified” (see Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports of Judgments and Decisions 1996III). | 1 |
test | 001-165756 | ENG | GBR | CHAMBER | 2,016 | CASE OF V.M. v. THE UNITED KINGDOM | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano | 4. The applicant was born in 1977 and lives in West Drayton. 5. The applicant claims to have entered the United Kingdom illegally on 18 November 2003 with her son (“S”), who was born on 13 July 2000. On 22 November 2003 S was admitted to hospital with serious injuries. 6. On 3 December 2003 S became the subject of an interim care order and the applicant was later charged with child cruelty under section 1(1) of the Children and Young Persons Act 1993 and with Grievous Bodily Harm with intent. 7. On 29 January 2004 the applicant claimed asylum on the basis that if returned to Nigeria she would be killed by the wife of a man who, she alleged, had sexually assaulted her. Her application was rejected by the Secretary of State for the Home Department on 26 April 2004. 8. On 25 May 2004 the applicant was diagnosed with a psychotic illness and detained in hospital for one week. 9. In July 2004 the Asylum and Immigration Tribunal dismissed the applicant’s appeal against the refusal of her asylum claim on asylum and human rights grounds, finding, inter alia, that she was not a credible witness. 10. On 24 August 2004 the applicant pleaded guilty to one count of child cruelty. She was granted bail pending a further hearing set for 7 February 2005. She then absconded for a period of over two years. 11. In March 2005 a residence order was made in favour of S’s father and the child was returned to Nigeria. 12. On 14 July 2005 the applicant gave birth to her second child (“M”), who had a different father to S. 13. On 26 September 2007 the applicant was arrested and charged with possession of false documentation with intent to commit fraud. She was convicted and on 12 December 2007 she was sentenced to nine months’ imprisonment. 14. On 7 April 2008 the applicant was convicted of child cruelty. Before sentencing the applicant for the offence of child cruelty, the Crown Court asked Dr O, a specialist registrar in forensic psychiatry, to produce a report. The report, which was dated 29 May 2008, indicated that the applicant suffered from a recurrent depressive disorder and emotionally unstable personality disorder. However, at the date of the report her depressive and psychotic symptoms were being managed with medication and therapy, with the result that her mental illness was not considered to be of a nature or degree to warrant treatment either in the prison healthcare wing or in hospital. She did not, therefore, fulfil the criteria for treatment under the Mental Health Act 1983 (“the 1983 Act”). 15. On 21 July 2008 the applicant was sentenced to twelve months’ imprisonment for the offence of child cruelty. She also pleaded guilty to the offence of failure to surrender to bail and was sentenced to three months’ imprisonment, to be served concurrently. The judge recommended deportation in view of the seriousness of the offences. 16. On 5 August 2008 the United Kingdom Border Agency decided to deport the applicant. She therefore remained in detention under immigration powers when her criminal sentence ended on 8 August 2008. 17. On 12 August 2008 the applicant appealed against the decision to deport her. In her notice of appeal she reiterated her claim that she was at risk of being killed in Nigeria and that she had no family connections there. As M had been taken into the care of the local authority and was the subject of care proceedings, she also asserted a right to remain in the United Kingdom until those proceedings had concluded. 18. On 5 December 2008 the Asylum and Immigration Tribunal dismissed her appeal but found that it would be proportionate to allow her to remain in the United Kingdom for the short period that it would take to complete the care proceedings in respect of M. 19. The applicant was refused bail on 12 January 2009 and again on 17 March 2009 on the grounds that she could not be relied on to comply with bail conditions, she offered no sureties and she represented a danger to herself and to others. 20. On 30 April 2009 the applicant obtained a report from Professor K, a medical expert, on her mental health. He agreed with the diagnosis of Dr O and concluded that the applicant was not suitable for compulsory treatment under the 1983 Act as she was not in need of in-patient psychiatric care and her mental health needs could be met in the community. She was taking medication and if necessary could be admitted to hospital on a voluntary basis. Professor K did, however, note that the applicant’s mental health was likely to deteriorate in response to continued detention, although it should improve in response to release in the community. 21. Bail was again refused by the authorities on 1 June 2009 in view of the risk of the applicant once again absconding. 22. On 19 June 2009 the applicant made representations requesting that the decision to deport be reversed or, alternatively, that the representations be treated as a fresh asylum claim pursuant to the relevant immigration rules. In these representations the applicant claimed that she faced a real risk of treatment contrary to Articles 3 and 8 of the Convention if she were deported to Nigeria due to her mental health status and the poor standard of treatment facilities in the destination country. Additionally, the applicant claimed that her family life with M would be irrevocably disrupted. 23. On 25 June 2009 a judge in the Family Court made a care and placement order in respect of M. In concluding that the threshold criteria were met, he stated that: “I am satisfied the evidence supports a finding of likelihood, that is to say a real possibility, of harm to [M], founded on [S’s] grave injuries; the previous court’s findings in respect of those; the mother’s mental history; her plea to a seriously abusive offence against [S]; her absenting herself from the care and the criminal processes; the social and practical vulnerability produced by the parties’ lack of immigration status; and their criminal offending, with its practical consequences for their availability to [M]. I am satisfied the matters I have outlined placed [M], at the relevant time, at significant risk of physical and emotional harm.” 24. Following the decision of the Family Court, on 21 September 2009 Professor K prepared a further report. He noted that the applicant’s mental state had deteriorated considerably since he last saw her as she was more depressed and more floridly psychotic. She was also experiencing sideeffects from the medication she was taking. Between May 2009 and September 2009 she had fought with another detainee, sustained injuries while being restrained, ingested washing powder, attempted to tie a ligature around her neck, stolen food from other detainees and smashed things in her room. Professor K considered that the deterioration in her mental health was largely due to her continued immigration detention. He expressed the opinion that the applicant would now benefit from hospital assessment and treatment and recommended her transfer under the provisions of section 48 of the 1983 Act. 25. On 10 October 2009 Professor K gave an opinion that the applicant was not fit to act as a litigant. He reiterated that she should be transferred to hospital under section 48 the 1983 Act. However, a transfer to a mental health hospital required the agreement of two clinicians responsible for a patient’s care. The applicant was not transferred as there was no agreement about whether she fulfilled the relevant criteria. 26. On 8 December 2009 the United Kingdom authorities contacted the responsible clinicians to request another mental health assessment of the applicant. However, the clinicians indicated that a further assessment was unnecessary as she had had four assessments already. The applicant was seen by the General Practitioner in the Immigration Removal Centre, who was satisfied that the medication being prescribed was best suited to her mental health situation and confirmed that there was no merit in arranging a further psychiatric assessment. 27. On 14 December 2009, following what the Court of Appeal described as a “lengthy delay” the Secretary of State refused to treat the applicant’s representations as a fresh claim for asylum. Further similar representations led to a further decision on 26 April 2010 in which the Secretary of State maintained that the conditions for a fresh claim were not met. 28. On 16 December 2009 the applicant lodged a judicial review claim challenging the lawfulness of her detention and the failure to transfer her to a mental hospital for compulsory treatment. She then added a further challenge to the refusal to treat her representations as a fresh claim for asylum. She was represented in these proceedings by the Official Solicitor as she lacked capacity to conduct the litigation on her own behalf. 29. In or around February 2010 the applicant was admitted to the Acute Assessment Wing of a hospital after attempting suicide. 30. Around this time Professor K examined the applicant once more and produced a report dated 1 March 2010. He noted that her condition had deteriorated due to her continued detention; she was more depressed, was describing mood-congruent auditory hallucinations, and continued to make multiple attempts to self-harm. He once again expressed the view that she should be transferred to hospital for compulsory treatment under section 48 of the 1983 Act. 31. While the applicant was in hospital she was examined by a nurse. She assessed the applicant’s risk of harming children as grade three on a scale of zero to three. She was also at a risk of suicide, deliberate self-harm and other offending behaviour at grade two. This gave the applicant a summary risk to herself of two and to others of three. Although the nurse noted that the applicant’s mood had improved since 1 March 2010, she still considered that she had ongoing and enduring mental health problems and that her needs could not adequately be met in Yarl’s Wood Immigration Removal Centre. 32. The applicant was readmitted to the Acute Assessment Wing on 12 March 2010, following a further attempt to self-harm. 33. On 15 March 2010 the applicant was assessed by Dr R, a consultant psychiatrist, Dr S, Acting Consultant for the Crisis Team, and Dr I of General Adult Psychiatry. They noted that she displayed a tendency to act impulsively and without consideration of the consequences. She also had a tendency to self-harm and exhibited behaviour which could be interpreted as suicidal. Furthermore, they considered her to be in an extremely stressful situation, given her detention and the ongoing care proceedings. In view of these considerations, they concluded that the applicant remained at very high risk due to her impulsivity and unpredictability. Although that risk could only be contained by constant supervision, this need could be met at Yarl’s Wood. Hospital admission would not provide management different to that. 34. The applicant was accordingly discharged back to Yarl’s Wood. 35. On 23 March 2010 Professor K considered Dr R’s report along with other materials. He agreed that the applicant was at high risk of suicide, but considered that this required not only constant supervision but also treatment of the underlying problem, which would be more appropriately managed therapeutically in a hospital setting. He further noted that other doctors had recommended psychological intervention in a secure in-patient setting. 36. Throughout the applicant’s detention, monthly detention reviews were carried out. During these reviews any change in circumstances was recorded, the likelihood of removal within a reasonable time was considered, and a proposal was made with regard to whether detention should be maintained. 37. Permission for the applicant’s first judicial review challenge was granted on 14 May 2010 and the hearing took place on 22 and 23 July 2010. 38. On 13 August 2010 the judicial review application was dismissed by a High Court judge, who found that while the Secretary of State had failed to take into account paragraph 55.10 of her own policy, Enforcement Instructions and Guidance (see paragraphs 58-63 below), when considering the justification for the applicant’s detention between 8 August 2008 and 28 April 2010 (“the first period of detention”), that failure had not caused any damage since the decision to detain would have been the same even had the policy been correctly considered and applied. The judge therefore dismissed the claim for false imprisonment. 39. The judge found that the policy had been taken into account from 29 April 2010 up to the date of the hearing on 22 July 2010 (“the second period of detention”). He therefore found that continuing detention was lawful during this second period. The judge also rejected submissions that the period of detention had become unreasonable and unlawful under the principles set out in R v. Governor of Durham Prison, ex parte Hardial Singh [1974] 1 WLR 704 (“the Hardial Singh principles”) (see paragraph 54 below). In this regard, he noted that, taking an analytical approach to each of the periods of detention following 8 August 2008, the applicant’s detention was explicable by steps she had taken, or failed to take (for example, cooperation in relation to emergency travel documents, and the conflicting advice in the hands of the authorities as to the effect of detention on her mental condition and the possibility of treating it while in detention). In relation to the applicant’s own conduct, the judge noted that: “It is clear from the Hardial Singh principles that obstacles to the Claimant’s removal caused by the Claimant’s conduct do not count in the formula. The initial conduct of the Claimant was her commission of the offence on her son. Relevant to the decision to deport and to detain pending deportation were her conviction for absconding and her conviction for fraud. The Claimant’s utilisation of the rights available under the legislation to challenge the Defendant’s decisions allowed her to remain in the UK. In a sense she is rightfully in the United Kingdom while these processes unwind. On the other hand, they are of her choosing since she could repatriate herself voluntarily to Nigeria. Put neutrally as the authorities do, without tendentious issues such as fault, it is her conduct which has caused her to be here. She appealed asylum and deportation decisions, engaged at some stages in the family proceedings and issued a purported fresh claim and judicial review.” 40. With regard to the Secretary of State’s refusal to accept the applicant’s representations as a fresh claim, the judge found that the further representations were not “significantly different” from material that had already been considered. Further, and in any event, the judge found that there was no Article 3 issue within the meaning of N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008 and that any interference with the applicant’s rights under Article 8 § 1 was justified under sub-paragraph 2. 41. The applicant appealed to the Court of Appeal against the dismissal of her judicial review claim on 13 August 2010. Permission was granted in light of the recent judgment of 23 March 2011 by the Supreme Court in R (Walumba Lumba and Kadian Mighty) v. Secretary of State for the Home Department [2011] UKSC 12 (“Lumba and Mighty”) (see paragraphs 64-65 below), in which the application by the Secretary of State of a “secret policy” in respect of immigration detention was held to be unlawful in violation of public law principles. 42. On 31 August 2010 the applicant applied for assisted return to Nigeria under the Facilitated Reintegration Scheme (a scheme under which financial incentives are provided for a voluntary return by an individual to his or her country of nationality) but the application was refused. 43. The applicant was served with a deportation order on 25 November 2010. Although she submitted further representations for a fresh asylum and human rights claim the immigration authorities refused to revoke the deportation order. The immigration authorities also declined to give her a further statutory appeal right in relation to that decision and removal directions were set for 27 January 2011. The applicant challenged this decision by way of judicial review and obtained an injunction preventing removal until this judicial review claim had been determined. 44. On 6 July 2011, shortly before the Court of Appeal hearing, the applicant was released on bail by the Asylum and Immigration Tribunal. 45. At the court hearing, the Secretary of State conceded that following the decision of the Supreme Court in Lumba and Mighty the applicant’s detention between 8 August 2008 and 28 April 2010 had been unlawful on account of a failure to consider the guidance on detention of mentally ill persons in the published policy on immigration detention (see paragraphs 5863 below). As a result, on 28 July 2011 the Court of Appeal allowed the applicant’s appeal against the High Court’s judgment. However, as the Secretary of State had continued to detain the applicant after the relevant policy had been taken into account (from 29 April 2010 onwards), the court was satisfied that she would have been detained during the earlier period even if the policy had been considered. Moreover, having assessed all the evidence in the case – in particular, the risk of the applicant reoffending, self-harming, or absconding –Despite the concerns over her mental health, the balance of expert advice was that her needs could be managed appropriately in detention. It therefore concluded that not only would the applicant have been detained during this period, but that she could have been detained lawfully. 46. With regard to the Hardial Singh principles, the court did not consider that the period of detention had become unreasonable by the date of the hearing before the judge, either on account of its length or because it should have been apparent that it would not be possible to effect deportation within a reasonable period. On the contrary, the court considered that deportation within a reasonable period had remained a sufficient prospect at every stage. In this regard, it noted that there was no external barrier to removal and no case-specific problem such as the absence of travel documentation. The only intermittent delaying factor was the applicant’s legal challenges but that did not oblige a finding that the prospects of removal were fanciful. Although it accepted that the Secretary of State could have responded sooner to the “fresh claim” representations, the “lengthy delay” only had a minor effect overall and did not constitute a failure to act with due diligence. 47. Finally, in relation to the Secretary of State’s refusal to treat the new representations as a fresh claim, the court found that he had been entitled to reach the conclusion he did. 48. Consequently, the court awarded the applicant nominal damages of GBP 1 in relation to the period which had been conceded to be unlawful. Permission to appeal was refused by the Supreme Court on 7 February 2012. 49. The applicant succeeded in quashing the decision not to give her a further statutory appeal right in relation to the decision to refuse to revoke the deportation order in light of the second set of representations for a further fresh claim (see paragraph 43 above). This case is now being reconsidered by the authorities in light of all the current circumstances. 50. In the meantime, the applicant has brought further judicial review claims (not related to the present application). She has also been litigating in the Family Court and is bringing a personal injury claim against the immigration authorities. 51. By the end of July 2010 contact between the applicant and M had been limited to two hours every two months with a view to further reduction and the prospect of a goodbye meeting once the applicant was deported or M adopted. However, the local authority subsequently agreed not to proceed with adoption and instead opted for long-term fostering for M. The applicant had her first contact with M in July 2012 and the local authority have agreed to further contact every three months. | 1 |
test | 001-169213 | ENG | UKR | COMMITTEE | 2,016 | CASE OF PELESHOK v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | André Potocki;Ganna Yudkivska;Síofra O’Leary | 5. The applicant was born in 1935 and lives in the city of Ternopil, Ukraine. 6. The applicant stated that in 1999 she had lent 21,500 United States dollars (USD) to Mrs Sh. She also stated that the loan had been repaid in part, and as of June 2002, a debt of USD 13,400 remained outstanding. 7. According to the applicant, on the morning of 30 July 2002 Mrs Sh. and Mrs Sh.’s husband beat her in the front yard of their house after the applicant had asked them to repay the outstanding debt. She also alleged that the incident had occurred in public “in front of passers-by who eyewitnessed it”. 8. In the testimonies she gave to the police after the criminal investigation had been opened (see paragraph 15 below), the applicant specified that in the course of the conflict Mrs Sh. had struck her on the head with a wet towel, then punched her on the head and on her breast, and Mr Sh. had also punched her on the head. 9. According to the statements of Mr and Mrs Sh. and several other witnesses who were interrogated by the police (see paragraphs 16 and 23 below), the applicant and Mrs Sh. had a confrontation on 29 July 2002. No injuries were inflicted on the applicant in the course of that dispute. 10. On 30 July 2002 the applicant was taken by ambulance to the emergency unit of the Ternopil Town municipal hospital, being admitted there at 5.30 p.m. According to the medical records, at the time of the applicant’s admission she was diagnosed with a brain concussion but no other traumatic injuries. On 31 July 2002 the doctors diagnosed bruising to the applicant’s breast. 11. The applicant remained in hospital from 30 July to 23 August 2002. 12. On 30 July 2002 the applicant’s husband lodged a complaint with the Ternopil Town police department. He claimed that Mrs Sh. and her husband had punched the applicant in the head and breast in the yard of their house. 13. On 9 August 2002 the police refused a request to institute criminal proceedings against Mr and Mrs Sh. for lack of corpus delicti. 14. On 4 September 2002 the Ternopil Regional Bureau of Forensic Medical Examinations (Обласне бюро судово-медичної експертизи) carried out a forensic medical examination. The forensic experts recorded that on 30 July 2002 the applicant had been admitted to hospital. Upon hospitalisation the applicant stated that at 11.00 a.m. that morning she had been beaten by “an acquaintance”. The forensic experts also found that the applicant had sustained a brain concussion and had a bruise on the right side of her chest. As she had suffered from the brain concussion for more than three weeks, this injury was qualified as a bodily injury of medium severity. The bruise was qualified as a light bodily injury. 15. On 29 October 2002 the Ternopil deputy prosecutor quashed the decision of 9 August 2002 and instituted criminal proceedings against Mr and Mrs Sh. 16. On 30 October 2002 the police questioned Mrs Sh. The Government provided copies of her testimony, which are, however, incomplete. It would appear that Mrs Sh. stated that she had borrowed USD 8,100 from the applicant without signing any formal documents, and had subsequently repaid this sum. She also testified that on 29 July 2002 the applicant and the applicant’s husband had come to her house and demanded the interest on the above amount. Mrs Sh. refused to pay the interest and there had been a dispute with the applicant, following which the applicant left. 17. On 19 November 2002 the police questioned the applicant’s husband as a witness. 18. On 2 and 4 January 2003 the police questioned three individuals, Mrs P., Mr Pukh. and Mr Pa., who were eye-witnesses to the incident. 19. On 3 January 2003 the deputy head of the investigation office of the Ternopil Town police department (заступник начальника СВ ТМВ УВСУ в Тернопільській області) ordered an additional forensic medical examination. 20. On 13 January 2003 the expert commission of the Ternopil Regional Bureau of Forensic Medical Examinations confirmed the findings of the expert examination of 4 September 2002. In addition, the experts noted that the applicant’s brain concussion and the bruise had been inflicted by a blunt object and could not have been sustained by falling. The experts also stated that the dynamics of the applicant’s clinical picture corresponded to her allegation that the injuries had been inflicted on her on 30 July 2002. They finally concluded that the brain concussion had been caused by a series of blows to the head. 21. On 14 January 2003 the police questioned Mr Sh. as a suspect. He gave the same testimony as his wife (see paragraph 16 above). 22. Between 15 January and 27 January 2003 multiple face-to-face confrontations were carried out between the applicant, the suspects and various witnesses who had been questioned earlier, including Mr T., Mr Pa., Mrs P. and Mr Pukh. 23. On 25 February 2003 the deputy head of the investigation office of the Ternopil Town police department terminated the criminal proceedings against Mr and Mrs Sh. for lack of evidence that a crime had been committed. Two accounts of events were noted in that decision, one suggested by the applicant and another one put forward on the basis of the statements of Mr and Mrs Sh. and two witnesses, T. and B. According to this second account of events, there had been a verbal confrontation between the applicant and Mrs Sh. on 29 July 2002 in the yard of the latter’s house, during which no injuries had been inflicted on the applicant. It was noted in the decision that numerous witnesses had been questioned, facetoface interrogations had been held and forensic medical examinations had been carried out. It was concluded that, in view of the conflicting witness statements, it was impossible to establish whether the incident had occurred on 29 or 30 July 2002 and the police did not have sufficient evidence to prosecute Mr and Mrs Sh. 24. On 4 March 2003 the Ternopil Town Prosecutor quashed the above decision and ordered an additional investigation. 25. On 4 April 2003 the police again terminated the criminal proceedings against Mr and Mrs Sh. They noted that Mr and Mrs Sh. testified that they had borrowed USD 8,100 from the applicant and had subsequently repaid this sum. Mr and Mrs Sh. maintained that on 29 July 2002 the applicant had come to their house together with her husband and had demanded the interest on the above amount. According to them, the applicant had with her a small pot containing an unknown liquid, which she said was acid. She had threatened to pour the acid into the eyes of the Sh.’s child. Mr Sh. called the police, but the applicant and her husband had left before they arrived. The police concluded that the evidence obtained as a result of the investigative measures was insufficient to prosecute Mr and Mrs Sh. and the identity of the applicant’s assailant had not been established. 26. Between March 2003 and September 2006 the criminal proceedings in the applicant’s case were terminated on eight occasions (on 4 April 2003, 5 June 2003, 5 August 2003, 14 September 2003, 28 December 2003, 17 May 2004, 27 August 2004 and 16 February 2005). All of these decisions were quashed by a senior prosecutor who ordered an additional inquiry, finding repeatedly that the investigation of the case had been “incomplete”. 27. In particular, in the decision of 5 May 2003 the deputy head of the investigation office of the Ternopil Town police department ordered that a reconstruction of the incident be staged with a view to establishing the facts of the case and in order to support or rebut the conflicting statements of the witnesses. He ordered specifically that it be established in the course of the reconstruction whether the witnesses (including T. and B.) could in fact have been able to observe the incident from the street outside the yard, as claimed by them. In a later decision, of 8 December 2004, a senior prosecutor from the Ternopil Regional Prosecutor’s Office noted, inter alia, the need to also question the ambulance personnel who had conveyed the applicant to the emergency unit on 30 July 2002. 28. On 6 May 2003 the police questioned Mr K., a taxi driver. He testified that on 30 July 2002 he had been driving his taxi and had picked up the applicant and her husband on the street where the house of Mr and Mrs Sh. is located. He added that the applicant had been in distress and held her hands to her head. 29. On 17 January 2004 the first deputy Ternopil City Prosecutor (перший заступник прокурора міста Тернополя) noted that the investigating officer had failed to follow instructions and take the investigative measures required by the decision of 5 May 2003 (see paragraph 27 above). 30. In 2004 disciplinary proceedings were instituted against investigating officer Z. for certain procedural violations, as a result of which the investigation became protracted. The outcome of these proceedings is unknown. 31. On 23 September 2006 the police took two procedural decisions in the case. By the first decision the police terminated the criminal proceedings against Mr and Mrs Sh., reiterating the reasons given in the decision of 4 April 2003. By the second decision the criminal investigation of the case was stayed until the identity of the person who inflicted the injuries on the applicant could be established. | 1 |
test | 001-145771 | ENG | FIN | ADMISSIBILITY | 2,014 | S.B. v. FINLAND | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant, Ms S.B., is a Moroccan national, who was born in 1986. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Mr Leo Hertzberg, 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 arrived in Finland on 18 July 2007 with a visa granted by the Finnish consulate in Rabat. 5. On 10 September 2007 the applicant married an Algerian man in Finland and she was granted a residence permit on the basis of family ties until 19 January 2010. She divorced on 7 September 2009. 6. On 21 December 2009 the applicant sought asylum as well as the extension of her residence permit. She stated that her adoptive mother lived in Finland and that they were very close. 7. On 18 March 2010 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected her asylum application and decided to order her removal to Morocco. In its reasons the Service stated that the applicant’s story contained conflicting information concerning, inter alia, with whom she had lived in Morocco. Her story was thus not fully credible. The threats imposed by private parties were not as such sufficient grounds to grant asylum. Since 2004 Moroccan women no longer needed permission from their father to marry and divorces had become more common in Morocco. The police had a special unit for investigating domestic violence and a shelter system was in place for women. It was nowadays possible for a woman to live alone in Morocco. The applicant had not shown any reason why she could not obtain protection from the Moroccan authorities if needed. Even though the applicant had taken part in student protests, she had not been arrested and her name was not known to the Moroccan authorities. It was not credible that she would be persecuted in Morocco for political reasons. Nor was it credible that she would be persecuted due to the fact that she was married to an Algerian man. As to the residence permit, the Service noted that the applicant’s adoption had not been registered in Finland. In any event, the applicant was an adult and could not be considered a family member of her adoptive mother. 8. The applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the Immigration Service’s decision be quashed. 9. On 3 November 2010 a District Court (käräjäoikeus, tingsrätten) confirmed the applicant’s adoption in Finland. It found that the applicant’s aunt had taken care of her since she was four years old. Even when the aunt moved to Finland in 1997, she had been in close contact with the applicant. In 2000 the adoption had been registered in Morocco. The applicant’s adoption could be confirmed in Finland only when she had become an adult. 10. On 7 January 2011 the Administrative Court rejected the applicant’s appeal on the same grounds as the Immigration Service. This decision was served to the applicant on 27 January 2011. 11. By letter dated 17 February 2011 the applicant appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) requesting a stay on expulsion, which was not granted. 12. On 22 February 2011 the applicant was detained with a view to preparing her removal. 13. On 24 February 2011 a District Court found, when deciding on the applicant’s detention, that the applicant’s state of health prevented her removal at that time but that the removal could be enforced when her condition allowed it. She was released from detention on the same date. 14. On 28 February 2011 the applicant was admitted to the closed ward of a psychiatric hospital due to psychotic depression. She was admitted at least until 3 March 2011. 15. On 11 March 2011 the police decided to detain the applicant again. However, this was not possible as the applicant was apparently still hospitalised. 16. On 13 March 2011 the applicant was admitted to a psychiatric hospital in Helsinki. She was diagnosed as severely depressed, psychotic and suicidal. She was apparently hospitalised until 27 May 2011. 17. On 16 March 2011 the applicant lodged an application with the Court, requesting that the removal to Morocco be stayed. On 17 March 2011 the Court indicated an interim measure under Rule 39 of the Rules of Court and held that the applicant should not be removed to Morocco in the light of her physical and mental condition. The Government was requested to submit to the Court independent medical evidence of the applicant’s fitness to travel prior to the implementation of any possible future attempt to remove her. 18. In April 2012 the Government informed the Court about the applicant’s situation. The applicant’s health had improved during the autumn and winter of 2011 but had deteriorated again in February 2012 when the police had asked for a new psychiatric evaluation. Since then the applicant had not been able to eat and had been suffering from severe sleeping problems. Her eating problems and suicidal tendencies were likely to lead again to hospitalisation. 19. On 11 June 2013 the Supreme Administrative Court refused the applicant leave to appeal. 20. According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity. 21. Section 147 b of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004, as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders. The annex of the Decision contains common guidelines on security provisions for joint removals by air, including, inter alia, an obligation for the Member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air. | 0 |
test | 001-157970 | ENG | UKR | CHAMBER | 2,015 | CASE OF SERGEY ANTONOV v. UKRAINE | 3 | 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);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage) | Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano | 5. The applicant was born in 1975. According to the most recently available information, in September 2013 the applicant arrived at Buchanska Correctional Colony No. 85, Ukraine, to serve a sentence. He has not informed the Court of his current whereabouts. 6. For a number of years the applicant has been suffering from various health problems. In particular, in July 2009, apparently also while serving a sentence, he was hospitalised in Buchanska Correctional Colony No. 85 and later transferred to a tuberculosis hospital in Slavyanoserbska Correctional Colony No. 61. Since November 2009 the applicant has been registered with the Kyiv City Aids Prevention and Control Centre. It appears that in December 2011 the applicant had a CD4+ cell count, the result of this count being 23 cells. No more detailed information about his precise diagnosis or about any further events between 2009 and September 2012 is available. 7. According to the applicant, on 7 September 2012 he was arrested on suspicion of theft. In a letter to this Court of 21 June 2013 the applicant stated that at the moment of his arrest he had had the following illnesses: human immunodeficiency virus (HIV) at clinical stage 4, post-tuberculosis residual effects, oropharyngeal candidiasis, and chronic hepatitis type C. 8. The decision on the applicant’s pre-trial detention was taken by a court on 10 September 2012. Between 27 September 2012 and 29 September 2013 the applicant was detained in the Kyiv Pre-Trial Detention Centre (Київський слідчий ізолятор) (“the SIZO”). 9. On arrival at the SIZO the applicant underwent an initial medical examination. The Government submitted a copy of the applicant’s initial medical examination card with the following information: height 1.77 m; weight 63 kg; blood pressure 125/80; blood type (unclear handwriting); bodily injuries none; infectious diseases: pulmonary tuberculosis – 2008, Botkin’s disease, – “-”, and sexually transmitted diseases – “-”. It was noted that the applicant had “no health complaints”. The applicant also submitted during the examination that he was registered with the Kyiv City Aids Prevention and Control Centre. 10. According to the applicant, because of the deterioration of his health in November 2012 he was examined in the above Centre. The only document provided in support of this statement is an advisory opinion issued by the Centre “on request” on 8 November 2012. The opinion stated, without noting when exactly the applicant had been examined, that the applicant had been diagnosed with HIV at clinical stage 4, post-tuberculosis residual changes, oropharyngeal candidiasis, and chronic viral hepatitis type C. The opinion also cited the result of the applicant’s CD4+ cell count performed on 13 December 2011. It was recommended that the applicant take antiretroviral therapy (“ART”) for life. In their submissions of 5 July 2013 following the applicant’s request under Rule 39 of the Rules of the Court (see paragraph 4 above), the Government noted that on 8 November 2012 the applicant had been diagnosed as above. 11. On 10 December 2012 the applicant agreed to undergo an HIV test following his “request submitted to the SIZO doctors”. According to the results of this test dated 12 December 2012, the applicant had HIV antibodies. 12. On 9 January 2013 the applicant underwent a biochemical blood analysis and a CD4+ cell count (the result of the count was 3 cells, or 0.5% (percentage of total lymphocytes)). The applicant was diagnosed with a high degree of immunological suppression and prescribed preventive anti-tuberculosis treatment. 13. On 14 February 2013 the applicant was placed in the infectious diseases ward of the SIZO. It was noted that the applicant’s state of health was of “medium seriousness”. He underwent an X-ray and various other examinations and was diagnosed with a tuberculosis relapse, extra-pulmonary tuberculosis, HIV infection at clinical stage 4, chronic hepatitis of the mixed type (toxic type and C type), and other diseases. The applicant was prescribed anti-tuberculosis treatment, detox and symptomatic treatment. The Government submitted that the applicant had received this treatment in full. 14. According to the available medical documents, between 14 February and 12 June 2013 the applicant’s weight dropped from 63 kg to 58 kg. 15. On 19 February 2013 the applicant was examined in the Kyiv City Anti-Tuberculosis Treatment Centre. 16. According to the medical file submitted by the Government, between 21 February and 2 July 2013 the applicant had consultations with SIZO doctors on the following dates: 21 and 28 February 2013; 7, 14, 21 and 28 March 2013; 4, 11, 18 and 29 April 2013; 6, 8 and 16 May 2013; 4, 19, 21 and 26 June 2013; and 2 July 2013. It was noted on some of those occasions that the applicant complained of general weakness but that his condition was stable. He “bore the treatment in a satisfactory manner” and after the applicant had started the ART (see paragraph 18 below) the consistent advice was that the ART should be continued. On several occasions the applicant was also prescribed various medication. 17. On 26 February 2013 the applicant was prescribed “a preventive treatment”. It was recommended that anti-tuberculosis treatment be continued in order to prepare the applicant for the ART. 18. In his letter of 23 July 2013 the applicant submitted that the ART had been prescribed to him in February 2013. In his further observations the applicant stated that the treatment had only been prescribed to him on 30 March 2013. The exact date when the applicant started the ART is unclear. 19. On some occasions in March and April 2013 the applicant refused to take the ART. According to the applicant, the prescribed drugs did not agree with him. 20. On 26 April 2013 the applicant was prescribed the ART “under the TDF/FTC (tenofovir/emtricitabine +ztv) schema”. 21. On 16 May 2013 the applicant consulted an infectious diseases specialist from Kyiv City Clinic No. 5, and was prescribed a diet and various medication. It was noted that the applicant had again stopped the ART. 22. On 14 June 2013 SIZO officials, at the request of the police, informed the police that the applicant’s state of health was of “medium seriousness, with a tendency to deteriorate which might lead to a lethal outcome”. They confirmed that, apart from the said diagnoses, the applicant was suffering from inflammation of the lymph nodes, dermatitis, intestinal dysbacteriosis, and other diseases. The applicant was receiving anti-tuberculosis treatment, ART and symptomatic treatment. It was stated that the applicant needed long-term medical treatment in a specialised medical facility. Consequently, they asked for the investigation to be speeded up and for the possibility of the applicant’s release to be considered. The document was signed by the head of the SIZO and the head of the SIZO’s medical department. 23. On the same date the criminal case against the applicant was transferred to a court for consideration on the merits. 24. On 18 June 2013 the applicant’s lawyer requested the applicant’s release before the national court. 25. Between 26 June and 5 July 2013 the applicant underwent a number of tests (blood and urine tests and X-ray examinations). In particular, on 3 July 2013 a biochemical blood test and CD4+ cell count were performed. The increase in the CD4+ blood cells from 3 to 69 was established (from 0.5% to 4.5%). On 5 July 2013 an expert MTB/RIF diagnostic test of the applicant’s sputum for identification of Mycobacterium tuberculosis was carried out. The test was negative. 26. In his application form to this Court of 8 July 2013 the applicant stated that he was suffering from general weakness, intestinal pain, severe headache, increase in the number and size of mycotic ulcers on his body and face, liver and chest pain, haemorrhoids, diarrhoea, pain in the lymph glands, and severe shortness of breath. He also had severe pain in his left leg, had lost around 20 kilograms in weight, and had difficulty sleeping. His CD4+ cell count had, however increased. For the hepatitis C, ulcers and left leg problem there was no treatment at all. 27. On 11 July 2013 the SIZO administration informed the applicant’s lawyer that the applicant was in the SIZO medical ward. He was receiving anti-tuberculosis treatment, ART and symptomatic treatment. The applicant underwent an X-ray examination, had various tests (complete blood count, biochemical blood test, blood sugar test, CD4+ cell count, and urine and sputum analyses) and had a number of consultations with infectious diseases and tuberculosis specialists. It was noted that the applicant’s condition was stable and there was a positive dynamic. He did not need hospital treatment, but required monitoring by infectious diseases and tuberculosis specialists. 28. On the same date the Kagarlytskyy District Court, Kyiv Region, extended the applicant’s pre-trial detention for two months. The applicant’s lawyer’s request for release on medical grounds was rejected by the court as not substantiated by appropriate documents. It also rejected the applicant’s lawyer’s request for a medical examination for him. 29. The applicant stated that on 13 July 2013 an ambulance had been called for him. He was given painkillers on that occasion. 30. In a letter of 23 July 2013 to this Court the applicant stated that there had been no change in his medical treatment between 14 June and 23 July 2013. According to him, the current treatment was not improving his health. 31. On 5 and 14 August 2013 the applicant was examined by a tuberculosis specialist, who concluded that the applicant’s condition was stable. 32. On 29 September 2013 the applicant was transferred to Buchanska Correctional Colony No. 85 to serve a sentence (the parties did not submit to the Court the details of the applicant’s conviction). He was provided with ART medication for two months’ treatment. On arrival at the Colony the applicant was examined by a doctor and diagnosed with HIV infection (IV clinical stage), hepatitis in the stage of remission, and post-tuberculosis residual changes (category 5.1). 33. On 10 October 2013 the applicant complained of fever, cough and abdominal pain. He was diagnosed with aggravation of his hepatitis, gastroduodenitis, and bronchitis, and was placed in a medical ward. 34. According to the applicant, on 25 June and 3 July 2013 he was subjected to psychological pressure by the SIZO authorities and their medical staff, who shouted at the applicant, called him names and told him to sign a paper stating that he had refused ART treatment of his own volition and that he had no complaints. The material in the case file includes a copy of a handwritten note dated 3 July 2013 and signed by the applicant. The note says the following: “Despite the worsening of my state of health, the personnel of the SIZO medical ward are doing everything possible and I have no complaints about them”. 35. On 4 July 2013 the applicant had a meeting with his lawyer. On the same date the applicant complained about the alleged pressure to the prosecutor’s office. He stated that SIZO doctors and an unknown police officer had forced him to sign a paper “that he refused (or had refused)” the ART and had no complaints. According to the applicant, he was threatened with being beaten, with being removed from the medical ward, with being placed in a disciplinary cell, and that other detainees would suffer because of him. The applicant stated that he had signed a paper stating that he had no complaints against the SIZO doctors. 36. By a letter of 8 July 2013 the Shevchenkivskyy District Prosecutor’s Office sent the applicant’s lawyer’s complaint to the Kyiv Department of the State Prison Service “for consideration”. 37. On an unknown date a State Prison Service official informed the Head of the Kyiv Department of the State Prison Service that there had been “no breaches of law by the staff on the medical ward or by the SIZO authorities”. On 5 August 2013 this information was submitted to the prosecutor and to the applicant. 38. On 14 October 2013 the head of the SIZO medical ward informed the head of the SIZO that there had been no incidence of pressure being put on the applicant during the latter’s stay there. 39. On the same date inmates B. and F. testified to the head of the SIZO that there had been no incidence of any kind of pressure being put on the applicant, and that he had always been provided with medical assistance when he requested it. | 1 |
test | 001-166744 | ENG | RUS | CHAMBER | 2,016 | CASE OF KONDRULIN v. RUSSIA | 4 | Violation of Article 34 - Individual applications;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1953 and lived in Magnitogorsk, in the Chelyabinsk Region until his arrest. 7. On 28 June 2011 the applicant was arrested on suspicion of having committed a criminal offence. He remained in custody throughout the investigation and trial. 8. On 29 March 2012 the Pravoberezhniy District Court of Magnitogorsk sentenced him to thirteen years and ten months’ imprisonment. The sentence was upheld on appeal by the Chelyabinsk Regional Court on 16 August 2012. 9. In 2012, following a complaint by the applicant of pain in his lower abdomen, he was diagnosed with an enlarged prostate gland and underwent surgery in relation to that condition. 10. In April 2013 the applicant was transferred to the prison tuberculosis hospital in Chelyabinsk for testing of his urogenital system. Two operations were performed in the hospital, but various problematic symptoms relating to his urinary system persisted. 11. In February 2014 a biopsy of prostate tissue revealed the presence of cancer cells. The applicant was diagnosed with terminal prostate cancer which had spread to his liver and inguinal lymph nodes. His condition was aggravated by a wasting syndrome and paraneoplastic syndrome. 12. According to the applicant, he did not have access to the required medication in the hospital, and therefore his condition worsened. 13. On 30 October 2014 a medical panel confirmed his diagnosis, adding a list of secondary illnesses to it. The doctors concluded that the applicant’s medical condition made him eligible for early release. 14. On 26 January 2015 the Metallurgicheskiy District Court of Chelyabinsk “the District Court” examined the applicant’s request for early release on health grounds. In the proceedings the applicant was represented by Mr A. Lepekhin, a lawyer from Agora. 15. At the hearing the doctor who was treating the applicant testified that his condition had significantly deteriorated since the beginning of 2014. He received painkillers in hospital, but effective medical treatment was unavailable, owing to a lack of the required medication. 16. The acting head of the hospital stated that the applicant could only receive adequate medical treatment in another hospital. 17. The prosecutor opposed the applicant’s being released, citing his failure to reform while in detention. He also stated that the release was not necessary, as the applicant could receive the required medical treatment within the prison system. 18. The court rejected the applicant’s request for release. It found that he had failed to improve himself, that is to say, the aim of reforming him as a prisoner had not been achieved. His medical condition did not preclude further detention, as the requisite medical treatment was available within the prison system. To receive it, the applicant only needed a transfer to a different hospital. 19. On 7 April 2015 the Chelyabinsk Regional Court upheld the above decision on appeal, having fully endorsed the reasoning of the lower court. It also noted that, in addition to pain relief and therapy to relieve symptoms, the applicant could have chemotherapy, should the prison hospital receive the required medication. 20. In the meantime, on 26 March 2015 the applicant sought interim measures from this Court under Rule 39 to ensure adequate medical treatment or his release from detention. 21. On 27 March 2015 the Court decided to apply Rule 39, indicating to the Government that it was desirable in the interests of the proper conduct of the proceedings that the applicant should be immediately examined by medical experts who were independent of the prison system, with a view to determining: (1) whether the treatment he was receiving in the prison hospital was adequate with regard to his condition; (2) whether his state of health was compatible with detention in prison hospital conditions; and (3) whether his condition required his placement in a specialist, possibly civilian, hospital. Furthermore, the Government were also to ensure his transfer to a specialist hospital, should the medical experts conclude that he required it. 22. On 9 April 2015 the Government responded to the Court’s letter of 27 March 2015, asserting that the scope and quality of the applicant’s medical treatment in the prison hospital corresponded to his needs. They alleged that, owing to the gravity of the applicant’s condition, only treatment of his symptoms was recommended, and such treatment was being provided in full. They submitted the following documents: a typed copy of the applicant’s medical file; certificates from detention facilities summarising the applicant’s treatment and describing his state of health; a report by a medical panel of 30 October 2014 confirming his eligibility for early release; a copy of the District Court’s decision of 26 January 2015; a statement by the acting head of the hospital in which he noted that the District Court had misinterpreted his testimony given on 26 January 2015, as he had never discussed the possibility of the applicant being treated in another hospital; and a statement by the head of the prison hospital in which he confirmed that the cancer treatment was only possible in a special oncological centre, and that he had never argued that it was accessible within the prison system. 23. On 28 May 2015 the applicant’s lawyer submitted that the Government had not made arrangements for the independent medical examination indicated by the Court to be carried out. However, two independent doctors summoned by the applicant’s lawyer had assessed the quality of his medical treatment in detention and the compatibility of further detention in the prison hospital with his state of health. In an expert report dated 23 May 2015 the doctors had concluded that the treatment the applicant was receiving in the prison hospital was inadequate. The belated diagnosis of prostate cancer and the failure to provide active treatment, such as glandular therapy, radiation therapy or surgery were mentioned among other major shortcomings on the part of the medical authorities. The doctors had also noted that the applicant could not be provided with adequate medical treatment in the prison hospital, because it had no licence for inpatient treatment of cancer patients and urological diseases. Accordingly, the experts had concluded that his detention in that facility did not correspond to his medical needs, and threatened his life. 24. Over the following months the applicant’s health continued to deteriorate, and the wasting syndrome progressed. 25. On 24 August 2015 the medical panel prepared a new report, again recommending the applicant’s early release on health grounds. A court hearing on the matter was scheduled for 11 September 2015. Four days before that date the applicant died of cancer. 26. At the request of the applicant’s lawyer, Mr A. Lepekhin, the Investigative Committee carried out a preliminary inquiry into the circumstances surrounding the applicant’s death, which ended with a decision of 15 October 2015 not to open a criminal case. | 1 |
test | 001-170663 | ENG | RUS | GRANDCHAMBER | 2,017 | CASE OF KHAMTOKHU AND AKSENCHIK v. RUSSIA | 1 | No violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security;Article 5-1 - Deprivation of liberty);No violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security;Article 5-1 - Deprivation of liberty) | András Sajó;André Potocki;Angelika Nußberger;Branko Lubarda;Dmitry Dedov;Erik Møse;Guido Raimondi;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Stéphanie Mourou-Vikström;Gabriele Kucsko-Stadlmayer;Ksenija Turković | 8. The applicants, Mr Khamtokhu and Mr Aksenchik, were born in 1970 and 1985 respectively. They are currently serving life sentences in the Yamalo-Nenetskiy Region of Russia. 9. On 14 December 2000 the Supreme Court of the Adygea Republic found the first applicant guilty of multiple offences, including escape from prison, attempted murder of police officers and State officials, and illegal possession of firearms, and sentenced him to life imprisonment. 10. On 19 October 2001 the Supreme Court of the Russian Federation upheld the first applicant’s conviction on appeal. 11. On 26 March 2008 the Presidium of the Supreme Court of the Russian Federation quashed the appeal judgment of 19 October 2001 by way of supervisory review and remitted the matter for fresh consideration. 12. On 30 June 2008 the Supreme Court of the Russian Federation upheld the first applicant’s conviction on appeal. The court reclassified some of the charges against him but the life sentence remained unchanged. 13. On 28 April 2010 the Tomsk Regional Court found the second applicant guilty on three counts of murder and sentenced him to life imprisonment. 14. On 12 August 2010 the Supreme Court of the Russian Federation upheld that conviction on appeal. | 0 |
test | 001-179886 | ENG | ROU | CHAMBER | 2,018 | CASE OF STĂNCULEANU v. ROMANIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano | 5. The applicant was born in 1975 and lives in Voluntari. 6. In March 2014 a large-scale criminal investigation was initiated against several persons for money laundering and fiscal fraud. On 3 December 2014 the investigation was extended in respect of thirty-two other persons, including the applicant. 7. Within the framework of the criminal investigation, on 4 December 2014 several police officers carried out a search at the applicant’s home. According to the search report, signed by the applicant and by her appointed lawyer without any objections, the search started at 6.15 a.m. and lasted until 2 p.m. 8. Immediately after the search and in accordance with the provisions of Articles 265-266 of the Romanian Criminal Code of Procedure (hereinafter RCCP, see paragraph 33 below), namely on the basis of an order to appear before the investigation body, the applicant was taken by police officers to the Bucharest police headquarters. 9. According to the record drawn up at the time, the enforcement of the order to appear was executed between 2.10 p.m. and 2.40 p.m., when the applicant arrived at the police station. 10. The order to appear had been issued by the prosecutor on 3 December 2014. It mentioned that “In the interests of the investigation ongoing in the above-mentioned criminal file [number] concerning money laundering and fiscal fraud, the questioning of [the applicant’s name and identification data] in her capacity of suspect is necessary. The criminal investigation bodies (...) will bring the suspect to the police headquarters on 4 December 2014 for the purpose of making a statement [before the investigating authorities].” 11. The documents on file show that between 8.40 a.m. on 4 December 2014 and 3 a.m. the next day, the investigating authorities, namely five prosecutors and six judicial police officers, conducted interviews in respect of fourteen witnesses and twenty-five suspects and/or defendants in connection with the criminal investigation involving the applicant. 12. According to the register kept by the police to record third parties entering the police station on a daily basis, the applicant’s appointed lawyer, Mr R.-M.S., entered the premises of the police headquarters at 4.10 p.m. The applicant contended that up until that time, her lawyer had been prevented from joining her because he had not submitted a written mandate proving that he lawfully represented her (see also paragraph 22 in fine, below). 13. It appears from the file that during her stay in the police station, the applicant’s phone conversations were tapped. 14. At an unspecified time before 7.32 p.m., a prosecutor informed the applicant that she was a suspect in an ongoing criminal investigation, and was to be charged with complicity in fiscal fraud; the applicant was also informed of the rights and obligations she had in that capacity. When invited to give a statement, she refused, claiming that she was unwell and needed medical assistance. The minutes recording this interview do not mention the exact time of their drafting; they are signed by the applicant, who confirmed having received a copy. Her lawyer does not appear to have been present. 15. The Government contended that the applicant’s request for medical assistance had been part of her defence strategy, as proved, in their view, by the transcripts of a phone conversation she had had with a third party at 7.14 p.m., in which she was advised accordingly (see also paragraph 13 above). The same argument was backed, according to the Government, by the conclusions of the medical investigations, which attested to the fact that no urgent need for medical care had been identified in her case (see paragraph 16 below). 16. At 7.32 p.m. an ambulance was called to the police station. It arrived at 7.50 p.m. and provided medical care (mainly intravenous infusion with minerals) to the applicant until 8.31 p.m., when she was taken to the Emergency University Hospital. Accompanied by police officers, she arrived at the hospital at 8.40 p.m., and was diagnosed with lipothymia. She remained in the hospital until 00.10 a.m. the next day and several medical examinations were performed during this time, following which vitamins, calcium and analgesics were administered. The diagnosis when the applicant left the hospital, accompanied by police officers, was neurovegetative dystonia and light hypokalemia. 17. The applicant claimed that during the whole time she was in hospital she had been guarded by police officers, who had then escorted her back to the police headquarters. 18. At about 00.22 a.m. the applicant’s questioning started. In the presence of her chosen lawyer, the applicant refused to give a statement on the grounds that she was very tired, having spent the last four hours in hospital. She also referred to the fact that neither she nor her lawyer had been given the opportunity to familiarise themselves with the contents of the criminal case file in which she was a suspect. 19. Subsequently, at 01.10 a.m., the applicant was informed in the presence of her chosen lawyer that the prosecutor had decided to remand her in custody (reţinere) for twenty-four hours. 20. Her lawyer lodged a complaint with the prosecutor against the decision to remand her in custody, as well as another complaint concerning her being unlawfully deprived of her liberty as of 12.00 p.m. on 4 December 2014. 21. In the first complaint, it is claimed that the order to appear became effective on 4 December 2014 at 6.20 a.m., and that the applicant was de facto remanded in custody as of 2.20 p.m. It is argued that the applicant’s deprivation of liberty throughout that interval was unlawful and unjustified, aimed solely at obtaining statements from her under duress. 22. In the second complaint it is claimed that on 4 December 2014, as of 12.00 p.m. when the search of her home ended, the applicant’s liberty to move around was restricted, as proved by the fact that she had been accompanied by police officers not only to the police station but also to the hospital, where she had been taken under escort to obtain medical assistance. The applicant mentioned that her lawyer had not been allowed to accompany her or to assist her because he did not have a written mandate, even though the lack of such a document was objectively justified by the circumstances in which she had been taken to the police station. 23. The prosecutor dismissed both complaints on the same day, holding that the measure to remand the applicant in custody was lawful, necessary and proportional to the gravity of the charge. He stated that the order to appear became effective after the house search had been performed, the presence of the applicant during the search being necessary in relation to its conduct and thus outside the limits of such an order. The prosecutor further considered that the time interval during which the applicant was under medical surveillance could not be included within the eight-hour time-limit set out by Article 265 § 12, as that was an incident excluding the responsibility of the investigating authorities. The limitation of her lawyer’s access to the criminal file had been justified by the necessity to get to the truth and to obtain from the applicant a genuine statement, uninfluenced by those already given by the other suspects or witnesses. 24. On 5 December 2014, relying on testimonial, documentary and audio surveillance evidence, the prosecutor asked the Bucharest County Court to place the applicant in pre-trial detention (arest preventiv) for thirty days as her release posed a threat to public order. 25. By an interlocutory judgment delivered on 6 December 2014, the Bucharest County Court allowed the prosecutor’s request and ordered the applicant’s detention until 3 January 2015. An appeal lodged against this was dismissed by the Bucharest Court of Appeal on 15 December 2014. Her pre-trial detention was extended for another thirty days by a decision of the Bucharest County Court issued on 29 January 2015, upheld on appeal. 26. The applicant was released on 11 February 2015 after two months of pre-trial detention. 27. It appears that the proceedings on the merits are still pending. 28. The applicant claimed that for two months, she had been placed in a cell measuring 9 square metres, which she had shared with three other detainees. She also complained about the poor conditions of hygiene, lack of ventilation and natural light. According to the applicant, the toilet was not separated from the living area by any partition, thus offering no privacy. 29. The Government provided information about the applicant’s conditions of detention. They submitted that the applicant had been detained in a cell measuring 9.32 sq m, which she had occupied with two or three other detainees from 5 to 8 December 2014. From 9 December to the date of her release, the applicant had been placed in a room measuring 9.42 sq m, along with two or three others. 30. They stated that each cell had sanitary facilities such as a toilet and a shower, which were separated from the rest of the cell by a curtain. Both cells had access to natural and artificial light, as well as ventilation provided by a double-glazed window measuring 115cm x 77cm. | 1 |
test | 001-142517 | ENG | UKR | CHAMBER | 2,014 | CASE OF BUDCHENKO v. UKRAINE | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 5. The applicant was born in 1932 and lives in the town of Gorlivka, Ukraine. 6. From 1953 to 1966 the applicant worked in a mine. 7. In 2001-2002 the applicant asked the Lenin Mine (his former employer) and the State mining enterprise Artemvugillya (the Lenin Mine’s legal successor) to explain to him how section 43 of the Mining Act (“Гірничий закон”) (see “Relevant domestic law” below) was to be implemented, and to pay his electricity and gas costs in accordance with this provision. In reply he was informed that persons who were entitled to receive coal free of charge but were living in houses with central heating had the right to exemption from electricity and gas payments, such costs being borne by the mining companies. However, no appropriate legal mechanisms implementing “the methods of calculation and the sources of financing” had been adopted by the Cabinet of Ministers. 8. In 2003 the applicant complained to a prosecutor’s office that his requests to have his electricity and gas payments covered had been ignored. In a letter dated 13 February 2003 from the Tsentralno-Miskyy District Prosecutor’s Office, the applicant was informed that he was entitled to exemption from electricity and gas payments. Since the Lenin Mine had refused to accept his claims owing to the lack of funds and no compensation mechanism was provided for by law, the applicant was advised to lodge his claims with the court. 9. In April 2003 the applicant instituted proceedings in the Tsentralno-Miskyy District Court against the State mining enterprise Artemvugillya and local communal heating and gas providers. He claimed that under section 43 of the Mining Act the mine should cover his electricity and gas costs by means of contributions paid into the local budget. He also claimed reimbursement of amounts already paid and asked that the State mining enterprise Artemvugillya settle his heating and gas debts. The applicant also claimed compensation for non-pecuniary damage. He updated his claims in 2004. 10. On 7 April 2004 the Tsentralno-Miskyy District Court found against the applicant. The court held that the applicant had worked in a mine for more than ten years and thus was entitled to receive free coal for everyday domestic needs. As he lived in a house with central heating, section 43-8 of the Mining Act should apply in his case. However, no mechanism was in place for the implementation of that provision. In particular, there was no procedure for transferring funds from mining enterprises to the local budget. The court also held that the applicant’s request for reimbursement of the amounts already paid had no basis in law. 11. On 29 July 2004 the Donetsk Regional Court of Appeal upheld that decision. 12. On 4 April 2006 the Supreme Court rejected an appeal on points of law by the applicant. 13. In a decision of 1 December 2006 the Tsentralno-Miskyy District Court ordered the applicant to settle his heating debts, noting that section 43 of the Mining Act did not exempt him from paying for heating services. That decision was upheld on 26 June 2007 by the Donetsk Regional Court of Appeal. On 23 October 2007 the Supreme Court of Ukraine rejected a request by the applicant for leave to appeal on points of law. 14. In a letter dated 4 November 2008 the Gorlivka Town Council informed the applicant that at that date no mechanism had been set up to handle the compensatory payments requested by him. 15. In letters dated 14 May and 2 July 2009 the Ministry of the Coal Industry of Ukraine informed the applicant that the mechanism for implementing section 43-8 of the Mining Act would be set up pursuant to a corresponding decision by the Cabinet of Ministers of Ukraine. 16. In a letter dated 17 August 2009 the Ministry of Labour and Social Policy of Ukraine informed the applicant that on 12 August 2009 the Cabinet of Ministers had adopted the corresponding decision, which was subject to approval by the Ministry of Finance. 17. In a letter dated 4 August 2010 the Ministry of Labour and Social Policy informed the applicant that he had no right to any compensation payments as the mine where he had been working in was in liquidation. 18. In October 2010 the applicant instituted court proceedings against the Tsentralno-Miskyy Department of Labour and Social Policy of the Gorlivka Town Council requesting recognition of his rights under sections 43-7 and 43-8 of the Mining Act and a declaration that the Department’s inactivity was unlawful. 19. On 1 November 2010 the Donetskyy Regional Administrative Court refused to examine the applicant’s claim and informed him that it should be lodged before a court of general jurisdiction. That decision was upheld on 7 December 2010 and on 28 September 2011 by the Donetsk Administrative Court of Appeal and by the Higher Administrative Court respectively. 20. The Mining Act entered into force on 1 December 1999. Parts 7 and 8 of section 43 of the Act that were in force before 2 September 2008 read as follows: “Coal-mining enterprises shall provide free coal for everyday domestic needs in the amount determined by collective agreement for the following categories of persons: pensioners who have worked in coal-mining enterprises for 10 years (men) and 7.5 years (women)... Persons who have the right to receive free coal but live in houses with central heating shall be exempted from paying for electricity and gas, those costs being borne by the coal-mining (processing) enterprises, which shall transfer the funds to cover the costs to the local budget.” 21. Pursuant to the “Transitional provisions” Chapter of the Mining Act, the Cabinet of Ministers of Ukraine had to adopt the relevant legal mechanisms with a view to implementing the Act’s provisions within four months of the date of the Act’s entry into force. 22. In 2008 section 43-8 was amended as following: “Persons who have a right to receive free coal but live in houses with central heating shall receive compensation for electricity, gas and heating payments by way of contributions paid from the State budget to the local budget.” 23. The procedure for granting the above compensation was determined by a decision of the Cabinet of Ministers of Ukraine (no. 887 of 12 August 2009). | 1 |
test | 001-169661 | ENG | RUS | CHAMBER | 2,016 | CASE OF YUSUPOVA v. RUSSIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1973 and lives in Grozny. 6. In September 2006 the applicant began living with A.A. 7. On 24 June 2007 she gave birth to a son, A.-M. 8. In September 2007 relations between the couple deteriorated and they separated. The child continued to live with the applicant. 9. In August 2011 the applicant’s brother-in-law, M.A., asked the applicant’s permission to take the child for a couple of days to see his father, A.A., who was visiting from Moscow. The applicant agreed. 10. The child was never returned to the applicant. A.A. took the boy to Moscow, and the applicant has not seen him since. She twice went to Moscow to find A.A., but in vain. 11. On 30 September 2011 the applicant applied to the Oktyabrskiy District Court of Grozny (“the District Court”), seeking to determine the child’s place of residence as being with her. She also asked the court to order A.A. to pay child maintenance. 12. On 24 October 2011 the District Court took a decision to leave the applicant’s claim without consideration owing to a failure by the parties to appear. 13. The applicant went to the police, asking for their help to locate A.A. 14. On 10 June 2012 the proceedings were resumed at the request of the applicant. 15. A.A. lodged a counterclaim with the District Court, seeking to have the child’s place of residence to be determined as being with him. 16. On 27 December 2012 the District Court decided that the child should live with his mother, the applicant, and that A.A. should pay the applicant child maintenance. A.A.’s application for a residence order was dismissed. A.A. appealed. 17. On 7 May 2013 the Supreme Court of the Chechen Republic (“the Supreme Court”) upheld the judgment of 27 December 2012 on appeal. 18. On 24 July 2013 the District Court clarified its judgment of 27 December 2012 and held that the operative part of the judgment should read as follows: “to remove the minor [child’s name], born on 24 June 2007, from [A.A.], residing at the address ..., and to hand him over to his mother P.A. Yusupova”. 19. However, A.A. refused to comply with the judgment. 20. On 12 August 2013 the District Court issued a writ of execution. 21. On 21 August 2013 bailiffs from the Inter-district Bailiffs Service of the Chechen Republic opened enforcement proceedings. 22. It was established from A.A.’s mother that A.A. lived in Moscow. Consequently, the enforcement file was referred to the Golovinskiy District Bailiffs Service in Moscow. 23. On 22 August 2013 a bailiff from the Golovinskiy District Bailiffs Service visited A.A.’s presumed place of residence in Moscow and established that A.A. and the child did not live there and were not registered there. The relevant report was drafted. 24. On 5 September 2013 the bailiff received a statement from the owner of the above-mentioned flat, who stated that A.A. and the boy had left the flat in August 2013. 25. The bailiff obtained further information that in 2013 the child had not attended his kindergarten in Moscow, kindergarten no. 615, and that there was no data about A.A. in the individual personalised tracking system of the Russian Pension Fund for Moscow and Moscow Region. 26. On 9 December 2013 the enforcement file was returned to the bailiffs service in the Chechen Republic. 27. On 25 March 2014 a bailiff from the Oktyabrskiy District Bailiffs Service of Grozny found that his counterparts in the Golovinskiy District Bailiffs Service had failed to take all the measures provided by the law on enforcement proceedings necessary for the enforcement of the judgment of 27 December 2012. Namely, they had failed to inspect the premises and draw up the relevant act of inspection, to involve the local police in carrying out the enforcement measures, to question A.A.’s partner O.S., named as the child’s mother in his medical record, and to institute a search for A.A. and the child. On the same day the enforcement file was again referred to the Golovinskiy District Bailiffs Service in Moscow. 28. In June 2014 the applicant enquired with the Golovinskiy District Bailiffs Service about the progress of the enforcement proceedings. She was informed about the referral of the enforcement file to the Oktyabrskiy Bailiffs Service in Grozny in December 2013. 29. The applicant then contacted the Oktyabrskiy District Bailiffs Service of Grozny, which on 16 October 2014 informed her that they did not know the whereabouts of the enforcement file. 30. At the request of the Oktyabrskiy Bailiffs Service, on 10 November 2014 the District Court issued it with a duplicate of the writ of execution of the judgment of 27 December 2012. 31. On 10 February 2015 the applicant filed a court complaint about the inaction of the Oktyabrskiy District Bailiffs Service of Grozny. 32. On 11 March 2015 the District Court held that between 21 August 2013 and 10 February 2015 no enforcement actions had been carried out by the Oktyabrskiy District Bailiffs Service of Grozny to enforce the judgment of 27 December 2012. The District Court further held that the inaction of the bailiffs service had led to an unjustifiably long delay in the enforcement of the judgment, which violated the applicant’s right to judicial protection, including her right to have the judgment enforced. It therefore found the bailiffs service’s inaction unlawful and ordered it to remedy the above violations. 33. On an unspecified date after the above judgment the enforcement file was referred back to Moscow, where a search for A.A. and the child was instituted. 34. On 26 August 2015 A.A.’s right to leave the country was temporarily restricted. On the same day the Bailiffs’ Service for Moscow Region was entrusted with carrying out enforcement actions in Moscow Region aimed at establishing A.A.’s and the child’s place of residence with A.A.’s partner O.S. Enquiries were sent to the Health and Education Departments of Moscow to trace the child. Two of A.A.’s presumed places of residence in Moscow, including the one visited in August 2013 (see paragraph 23 above), were visited. Nobody opened the door at the flats in question or at the neighbouring flats. 35. On 5 October 2015 the enforcement file was referred to the interdistrict special enforcement unit of the Moscow Bailiffs’ Service (межрайонный отдел по особым исполнительным производствам неимущественного характера Управления Федеральной службы судебных приставов по Москве). 36. It was established that the child was not attending a school in Moscow and that he was not attached to any public health-care structure in that city. However, on several occasions he had consulted doctors and received treatment in medical establishments there, most recently in June 2015. It was further established that between January and October 2015 A.A. had not made any payments using his bank cards and that he had not married. 37. On 15 October and 21 December 2015 another two of A.A.’s presumed places of residence in Moscow were visited. It was established that A.A. had never lived at the first address. He had lived at the other address, but by that time the flat had been rented to someone else. 38. On 18 December and 24 December 2015 a bailiff asked the Moscow Veshnyaki District Department of the Interior (ОМВД по району Вешняки ГУ МВД России г. Москвы) and the State Inspectorate for Road Safety in Moscow (УГИБДД ГУ МВД России по г. Москве) respectively for assistance in searching for the child and locating A.A.’s vehicle. 39. On 30 December 2015 the bailiff ordered that A.A. be brought in by force. 40. On 31 December 2015 the bailiff attempted to bring in A.A. by force by paying a visit to another of his presumed places of residence in Moscow. However, the door was opened by a Ms V.I. who explained that A.A. did not live at that address on a regular basis, that he rarely visited and that she did not know his whereabouts. 41. On 14 January 2016 the bailiff sought the help of the joint stock company the Federal Passenger Company in order to obtain information about any railway travel by A.A. On 3 February 2016 it reported that A.A. had bought a train ticket from Nazran to Moscow for 30 April 2015. No tickets had been bought for the child. 42. On 27 January 2016 Sberbank of Russia provided the bailiff with information on the movement of money in A.A.’s bank accounts, with information about the cash dispensers where withdrawals had been made. 43. The search dossier was subsequently sent to the Department of the Federal Bailiffs Service for the Chechen Republic to establish the whereabouts of A.A. and the child and to obtain information from people residing at an address that had been indicated in Grozny. 44. To the present date the domestic authorities do not know the whereabouts of A.A. and the child and the judgment of 27 December 2012 remains unenforced. 45. The applicant sought to have criminal proceedings instituted against her brother-in-law for the alleged abduction of the child, but without success. After several rounds of pre-investigation inquiries, the Investigations Department of the Leninskiy District of Grozny of the Investigative Committee of Russia in the Chechen Republic took several decisions refusing to institute criminal proceedings for lack of evidence of a crime. The most recent refusal, dated 26 July 2012, was set aside on 10 August 2015 and an additional pre-investigation inquiry was ordered. 46. According to the applicant, she saw her son and A.A on 31 May 2012 while she was on her way to the Investigations Department. The applicant bent down to hug the boy. At that moment A.A. punched the applicant close to her left ear. She fell down, hitting her head on the pavement and lost consciousness. The applicant recovered in hospital and was subsequently diagnosed by a forensic medical expert as having a traumatic rupture of the left eardrum, intracranial hypertension syndrome, astheno-neurotic syndrome and bruising of the soft tissues of the left cheekbone. After several rounds of pre-investigation inquiries about the above incident, the Investigations Department of the Staropromyslovskiy District of Grozny of the Investigative Committee of Russia in the Chechen Republic took several decisions refusing to institute criminal proceedings against A.A. for lack of evidence of a crime. The most recent refusal, dated 23 October 2014, was set aside on 10 August 2015 and an additional preinvestigation inquiry was ordered. 47. No further information was made available to the Court regarding the outcome of the additional pre-investigation inquiries. | 1 |
test | 001-170835 | ENG | CZE | CHAMBER | 2,017 | CASE OF HELDENBURG v. THE CZECH REPUBLIC | 4 | Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction) | Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano | 7. The applicants sent five letters to the Court in total: on 7 September 2014, on 6 and 21 January, and on 2 and 18 March 2015. Each of the letters contained information concerning their claims for just satisfaction and their friendly-settlement negotiations, and specifically the sums that the Government had offered to them in a letter of 6 January 2015. In the letter of 21 January 2015, the applicants repeated the statements they had made in their letter of 6 January 2015 and compared the sum offered by the Government with that in the case of Šumbera v. the Czech Republic (no. 44410/09, 11 June 2015 (just satisfaction)). They also transmitted to the Court the content of the Government’s letters on friendly-settlement negotiations held on 30 September and 18 November 2014 and 16 January 2015. 8. By a letter of 13 February 2015 the applicants, invoking the Free Access to Information Act 1999, asked the Ministry of Justice about the method used to calculate the sum offered to them in the friendly settlement. On 17 March 2015 the applicants requested that the Ministry of Justice review its previous response under that Act. They attached the Government Agent’s letter of 18 November 2014 sent to them in the context of the friendly-settlement negotiations. They once again asked about the method used to calculate the sum offered to them for the friendly settlement. 9. On 31 March 2015 the applicants lodged an application to reopen the original proceedings before the Constitutional Court. | 0 |
test | 001-164668 | ENG | BGR | CHAMBER | 2,016 | CASE OF MARINOVA AND OTHERS v. BULGARIA | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev | 5. Mrs Marinova was born in 1972 and lives in Tervel. 6. In February 2006 she complained to the Child Protection Agency that the school teacher of her son, then aged fourteen, had on several occasions ill-treated and humiliated him. In particular, she alleged that the teacher had hit the child three years earlier and had since then often insulted him, had made remarks about his parents in front of other pupils, and had belittled his performance at school. Mrs Marinova argued that this had amounted to harassment, and said that her son had become demotivated. The Agency examined the complaint, heard the teacher, Mrs Marinova’s son and other witnesses, and concluded that the allegation of ill-treatment had not been made out. It found that relations between Mrs Marinova and the teacher had been strained since 2003, when the father of her son had threatened the teacher in front of other pupils. The teacher had brought a private criminal prosecution against the father in relation to that, and the proceedings were pending. 7. In April 2006 Mrs Marinova complained to the school’s headmaster and the police that the teacher had taken her son’s mobile telephone in class and had later refused to give it back. 8. The prosecuting authorities opened criminal proceedings against an unknown perpetrator in connection with this allegation and in August 2006 suspended them on the ground that the perpetrator had not been identified. 9. In July 2006 the teacher brought a private criminal prosecution against Mrs Marinova in connection with these three complaints. She submitted that she had not read them because the authorities dealing with them had not shown them to her. However, she had been asked to give explanations and from the questions put to her she had inferred that Mrs Marinova had accused her of having stolen a mobile telephone and described her as a biased and incompetent teacher using inappropriate disciplinary methods. At the first hearing of the case in September 2006, the teacher brought a civil claim against Mrs Marinova, seeking 5,000 Bulgarian levs (BGN) (2,556 euros (EUR)), plus interest, in non-pecuniary damages. 10. On 29 November 2006 the Tervel District Court found Mrs Marinova guilty of defaming a public official, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). The court replaced Mr Marinova’s criminal liability with an administrative fine of BGN 500 (EUR 256). It partly allowed the teacher’s claim for damages, ordering Mrs Marinova to pay her BGN 1,000 (EUR 511), plus interest. It also ordered Mrs Marinova to pay the teacher’s costs, amounting to BGN 164 (EUR 84), and part of the court fee paid by the teacher, amounting to BGN 40 (EUR 20). The court noted that relations between the teacher and Mrs Marinova had for a long time been bad. Having examined the findings of the Child Protection Agency and the prosecuting authorities in relation to Mrs Marinova’s complaints, the court concluded that her allegations, the first of which had become known to the school’s headmaster and a pedagogical counsellor in the school, had been false and therefore defamatory. The court also held, without specifying the basis for its conclusion on this point, that Mrs Marinova had acted with direct intent. In fixing the amount of the fine, the court noted, inter alia, her poor financial situation. 11. Mrs Marinova appealed, arguing, inter alia, that complaining about a public official to the authorities did not amount to “dissemination” within the meaning of Article 147 § 1 of the Criminal Code (see paragraph 49 below). Such complaints could, in some cases, be seen as false accusation contrary to Article 286 of the Code (see paragraph 54 below). Mrs Marinova also emphasised that she had not made her allegations publicly. 12. In a final judgment of 18 April 2007, the Dobrich Regional Court upheld the lower court’s judgment. It found that Mrs Marinova’s allegations that the teacher had ill-treated her son were not supported by the findings of the Child Protection Agency or her son’s or the headmaster’s testimony, and held that information was “disseminated” within the meaning of Article 147 § 1 of the Criminal Code even if only one person had become privy to it. The court found that the allegations in relation to the mobile telephone were false as well. It agreed that the statements in this respect in Mrs Marinova’s complaint to the police had amounted to a false accusation, and that the lower court had been wrong to characterise them as defamation. However, it stated that in the absence of an appeal by the teacher, it could not quash this part of the lower court’s judgment. It upheld, without giving any details, the lower court’s finding that Mrs Marinova had acted with direct intent. 13. To obtain payment of the award of damages and costs, the teacher brought enforcement proceedings against Mrs Marinova. It is unclear how these ended. 14. Mr Zlatanov was born in 1963 and lives in Sofia. 15. On 28 July 2008 he was stopped by two road traffic police officers. One of them recorded that Mr Zlatanov had failed to obey a stop sign. Mr Zlatanov objected, noting down in the record that the officer had refused to present himself, smelled of alcohol and staggered. In written explanations which he filed with the Shabla District Police Department on 5 August 2008, Mr Zlatanov reiterated his allegations and said that the officer had behaved aggressively. 16. Mr Zlatanov’s allegations triggered an internal inquiry which exonerated the officer of any wrongdoing. 17. In December 2008 the officer brought a private criminal prosecution against Mr Zlatanov in relation to these allegations. He also claimed BGN 5,000 (EUR 2,556) in non-pecuniary damages. 18. In a judgment of 6 March 2009, the Kavarna District Court found Mr Zlatanov guilty of defaming a public official, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). The court replaced his criminal liability with an administrative fine of BGN 500 (EUR 256). It partly allowed the officer’s claim for damages, ordering Mr Zlatanov to pay him BGN 1,500 (EUR 767), plus interest. It also ordered Mr Zlatanov to pay BGN 60 (EUR 30) in court fees. The court examined in detail the results of the internal inquiry carried out pursuant to Mr Zlatanov’s allegations, tests carried out several hours after the incident on 28 July 2008 and showing that the officer had not consumed alcohol, and the oral evidence of the other officer present at the scene and the officers’ superior. It concluded that Mr Zlatanov’s allegations did not correspond to the truth. It went on to find that Mr Zlatanov had not been certain of the truthfulness of his allegations, but had nevertheless chosen to make them, both in the record drawn up by the officer in the course of the incident on 28 July 2008 and in his subsequent written explanations. 19. Mr Zlatanov appealed. He argued, inter alia, that his statements, made in the exercise of his constitutional rights and only addressed to the officer’s superior, had not amounted to “dissemination” within the meaning of the Article 147 § 1 of the Criminal Code (see paragraph 49 below). He also relied, inter alia, on Article 10 of the Convention and this Court’s caselaw under this provision. 20. In a final judgment of 20 November 2009, the Dobrich Regional Court upheld the lower court’s judgment. It found it established that the officer had not displayed any signs of inebriation, which in the court’s view meant that Mr Zlatanov had been fully aware that the officer had not been drunk but had nevertheless chosen to make his allegations, thus acting with a direct intent to discredit the officer. Those allegations, whose purpose had been to smear the officer and at the same time exonerate Mr Zlatanov from liability for the road traffic offence recorded by the officer, could not be justified by the right to defend oneself against administrative-penal charges or the right to freedom of expression. The court ordered Mr Zlatanov to pay the officer’s costs for the appellate proceedings, amounting to BGN 512 (EUR 262). 21. Mr Findulov was born in 1955 and lives in Burgas. 22. On 12 July 2009 Mr Findulov, who was driving his lorry, was stopped by two road traffic police officers. One of them allegedly requested a bribe. Mr Findulov promised to bring him the money in ten minutes and left his identity card and the vehicle’s documents with the officers. He then called the police and informed the officer on duty of the incident. 23. On 23 July and 3 and 14 August 2009 Mr Findulov made complaints to the Inspectorate of the Ministry of Internal Affairs, the Ombudsman of the Republic and the Minister of Internal Affairs, alleging that one of the officers who had stopped him, whose identity was not known to him, had requested a bribe and had withheld his documents. 24. On 13 August 2009 the Burgas Regional Directorate of the Ministry of Internal Affairs replied to Mr Findulov that his complaint was illfounded. 25. According to Mr Findulov, on 14 September 2009 he found his identity card in his mail box. The vehicle’s documents were never recovered. 26. In a decision of 12 August 2009, the Road Traffic Police Department of the Burgas Regional Directorate of the Ministry of Internal Affairs found, on the basis of a report by the two traffic police officers issued in Mr Findulov’s absence, that he had not used a seatbelt, that one of the tyres of his lorry had been worn out, that he had refused a breathalyser test, and that he had driven away in an unknown direction. It gave Mr Findulov two administrative fines of BGN 50 and one administrative fine of BGN 500, stripped him of twenty-five control points from his driving licence, and barred him from driving a motor vehicle for twelve months. 27. Mr Findulov sought judicial review of that decision. On 30 November 2009 the Burgas District Court found that no appeal lay against the BGN 50 fines and discontinued the proceedings in that part. It quashed the remainder of the decision of 12 August 2009, finding that the report of the traffic police officers had not been communicated to Mr Findulov. In a final judgment of 25 March 2010 the Burgas Administrative Court upheld that judgment. 28. On an unspecified date in 2009, the officer accused by Mr Findulov of soliciting a bribe brought a private criminal prosecution against him in relation to that allegation. He also sought BGN 10,000 (EUR 5,113) in nonpecuniary damages. 29. In a judgment of 11 May 2010, the Burgas District Court found Mr Findulov guilty of defaming a public official, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). It sentenced him to a fine of BGN 5,000 (EUR 2,556) and a public reprimand. It partly allowed the officer’s claim for damages, ordering Mr Findulov to pay him BGN 3,000 (EUR 1,534). It also ordered Mr Findulov to pay BGN 120 (EUR 61) in court fees. The court noted that in his complaints Mr Findulov had not named the officer, but found that he had been identifiable from the complaints, which clearly alleged that he had requested a bribe, thus accusing him of an offence before third parties. The offence of defamation did not require that those third parties – the officer’s hierarchy – had actually believed the allegations or taken any action in relation to them. Mr Findulov, who under Article 147 § 2 of the Criminal Code (see paragraph 49 above) bore the burden of proof in this respect, had failed to establish that the officer had in fact solicited a bribe. The court went on to say, without explaining the reasons for this conclusion, that Mr Findulov had acted with direct intent. When fixing the sentence, the court noted that it could not replace Mr Findulov’s criminal liability with an administrative punishment as this was a one-off possibility and Mr Findulov had previously benefited from a waiver of his criminal liability in relation to a road traffic offence. In fixing the award of non-pecuniary damages to the officer, the court noted that Mr Findulov’s allegations had been particularly damning. 30. Mr Findulov appealed. 31. In a final judgment of 14 July 2010, the Burgas Regional Court upheld the lower court’s judgment. It entirely agreed with the reasons given by that court, adding that Mr Findulov had been fully aware that his allegations against the officer were false but had nevertheless chosen to defame him. The court also ordered Mr Findulov to pay BGN 250 (EUR 128) incurred by the officer in costs for the appeal proceedings. 32. The public reprimand was executed, as ordered by the court, by announcing Mr Findulov’s conviction and sentence on the local radio station. To obtain payment of the award of damages and costs, the officer brought enforcement proceedings against Mr Findulov. It is unclear how these ended. 33. Mr Dinchev was born in 1943. Mrs Dincheva was born in 1947. Both of them live in Lovech. 34. The two of them had a long-running conflict with neighbours of theirs. On 14 November 2009 tensions escalated and Mr and Mrs Dinchevi called the police, complaining that they had been assaulted by the neighbours. Two officers came and warned one of the neighbours not to harass the applicants. 35. On 17 November 2009 Mr and Mrs Dinchevi complained to the head of the Lovech District Police Directorate against the officers, alleging that they had shown no interest in the incident and had failed to protect them, instead inviting the aggressors in the patrol car and “muttering with them”. Mr and Mrs Dinchevi sent copies of the complaint to the Lovech District Prosecutor’s Office, the head of the Lovech Fire Brigade, and the Minister of Internal Affairs. On 4 December 2009 the head of the Lovech District Police Directorate informed Mr and Mrs Dinchevi that an internal inquiry had established that their complaint was ill-founded. 36. On an unspecified date in 2010 the officers brought a private criminal prosecution and claims for damages against Mr and Mrs Dinchevi. 37. In a judgment of 20 October 2010, the Lovech District Court found Mr and Mrs Dinchevi guilty of defaming public officials, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). It sentenced each of them to a fine of BGN 2,500 (EUR 1,278) and a public reprimand. The reprimand was to be executed by announcing the conviction and sentence on the local radio station. The court also partly allowed the officers’ claims for damages, ordering the applicants to pay each of them BGN 400 (EUR 205). 38. On appeal, in a final judgment of 18 April 2011 the Lovech Regional Court upheld the conviction with similar reasoning but reduced the fine imposed on each applicant to BGN 1,500 (EUR 764). 39. After the Government were given notice of the application (see paragraph 4 above), they brought Mr and Mrs Dinchevi’s case to the attention of the Chief Prosecutor. In December 2012 the Chief Prosecutor ad interim asked the Supreme Court of Cassation to reopen the proceedings, set aside the judgments against Mr and Mrs Dinchevi, and acquit them. He submitted that the statements in their complaint against the officers had not been defamatory but simply an expression of their disapproval of the way in which the officers had carried out their duties. Under the case-law of this Court and the case-law of the Supreme Court of Cassation, public officials could legitimately be subjected to heightened criticism. Accepting, as the Lovech courts had, that critical statements in complaints against such officials were defamatory would mean that the vast majority of claims and complaints filed with the courts and the prosecuting authorities by nonlawyers could lead to penal sanctions. 40. In a final judgment of 7 March 2013 (реш. № 104 от 07.03.2013 г. по н. д. № 178/2013 г., ВКС, III н. о.), the Supreme Court of Cassation allowed the request, reopened the proceedings, set the two judgments aside, acquitted Mr and Mrs Dinchevi, and dismissed the claims for damages against them. It held that their actions had not amounted to an offence. The statements in their complaints had been an expression of their disapproval of the way in which the officers had carried out their duties, and an exercise of their constitutional rights to make complaints to the authorities, express their opinion, and defend their rights. The statements had been value judgments which could not be proved or disproved, and could not be regarded as defamatory. Defamation could only consist in the imputation of concrete negative facts. The statements did not give rise to liability in damages either. | 1 |
test | 001-159782 | ENG | DEU | CHAMBER | 2,016 | CASE OF BERGMANN v. GERMANY | 2 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind);No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Conviction;Criminal offence) | Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev | 5. The applicant was born in 1943 and is currently detained in the centre for persons in preventive detention on the premises of Rosdorf Prison (hereinafter the “Rosdorf preventive detention centre”). 6. Between 1966 and 1984, the applicant was convicted by the criminal courts five times. He was found guilty of sexual assault of a seven-year-old girl and attempted rape of a fourteen-year-old girl, committed under the influence of alcohol, and of attempted sexual acts with a thirteen-year-old boy. He was found to have committed other unlawful acts, including arson and strangulating a ten-year-old boy during a burglary, but was not held criminally liable because he had been drunk. He was sentenced, in particular, to terms of imprisonment ranging from six months to ten years. 7. On 18 April 1986 the Hanover Regional Court convicted the applicant of two counts of attempted murder, combined with attempted rape in one case, and of two counts of dangerous assault. It sentenced him to fifteen years’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see paragraph 46 below). 8. The Regional Court found that between 7 July 1985 and 3 October 1985, the applicant had stabbed a nineteen-year-old female cyclist in the back in a life-threatening manner for sexual gratification; had stabbed a male cyclist he had mistaken for a woman twice in the back and at the temple, again for sexual gratification; and had stabbed a twentythree yearold woman three times in a life-threatening manner in an attempt to rape her. He had committed those offences under the influence of alcohol in a park in Hanover. Still drunk, he had then broken into a house, strangulated a four-year-old girl and had injured her with a knife below the waist for sexual gratification. He was arrested on 9 October 1985. 9. Having consulted two medical experts, the Regional Court found that at the time of committing the offences, the applicant had been in a state of diminished criminal responsibility (Article 21 of the Criminal Code, see paragraph 62 below). He was diagnosed with sexual deviance, a personality disorder and psycho-organic syndrome, which was probably a consequence of his longstanding alcohol abuse. As long as the applicant did not drink alcohol, those abnormalities did not affect his criminal responsibility as he was able to control his aggression. However, combined with the consumption of alcohol, they led to his criminal responsibility being diminished. 10. The Regional Court decided to order the applicant’s preventive detention under Article 66 § 2 of the Criminal Code. It considered that as a result of his personality disorder, the applicant had a propensity to commit serious offences which seriously harmed the victims both physically and mentally. As confirmed by the two medical experts, there was a high risk that if released, the applicant would commit further violent offences for sexual gratification under the influence of alcohol, similar to those of which he had been found guilty. He therefore presented a danger to the general public. 11. Lastly, the Regional Court decided not to order the applicant’s detention in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 63 below). The court endorsed the experts’ finding that the applicant’s personality disorder could no longer be treated because his sexually deviant aggressive behaviour had lasted for decades and because he would be unable to pursue psychotherapy in view of his limited intellectual capacity. Public security could therefore be better safeguarded by placing the applicant in preventive detention. 12. The applicant served his full term of imprisonment, and on 12 June 2001 he was placed for the first time in preventive detention, for which he was held in a wing of Celle prison. By 11 June 2011 he had served ten years in preventive detention. 13. The courts responsible for the execution of sentences ordered the continuation of the applicant’s preventive detention at regular intervals. In particular, the Lüneburg Regional Court ordered the continuation of his detention on 13 May 2011 and 5 October 2012. 14. On 26 July 2013 the Lüneburg Regional Court, sitting as a chamber responsible for the execution of sentences, ordered the continuation of the applicant’s preventive detention. The Regional Court further ordered the Rosdorf Prison authorities to offer the applicant, within three months of the date on which its decision became final, a specific anti-hormonal therapy with medication aimed at reducing his sadistic fantasies and his libido, and thus his dangerousness. The court had consulted the Celle Prison authorities and the prosecution and had heard the applicant in person as well as his counsel, who represented him throughout the proceedings before the domestic courts. 15. The Regional Court considered that the requirements for ordering the continuation of the applicant’s preventive detention laid down in the second sentence of section 316f(2) of the Introductory Act to the Criminal Code (see paragraph 53 below) had been met. 16. The Regional Court confirmed that the said transitional provision was applicable to the applicant’s case. It noted that at the time of his last offence on 3 October 1985, the applicant’s first placement in preventive detention could not exceed ten years. It was only following the entry into force of the Combating of Sexual Offences and Other Dangerous Offences Act on 31 January 1998 (see paragraph 51 below) that the courts responsible for the execution of sentences could prolong preventive detention without any maximum duration. The applicant therefore fell within the category of detainees whose preventive detention had been prolonged retrospectively, as defined by the Federal Constitutional Court in its judgment of 4 May 2011 (see paragraphs 66-72 below). The Regional Court further noted that the second sentence of section 316f(2) of the Introductory Act to the Criminal Code had regard to, and had taken up, the standards set up by the Federal Constitutional Court in the above-mentioned judgment for the continuation of retrospectively ordered or retrospectively prolonged preventive detention. 17. The Regional Court considered that, in accordance with section 316f(2) of the Introductory Act to the Criminal Code, the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act (see paragraph 64 below). It endorsed the findings made on that point by W., an external psychiatric expert it had consulted, in his report dated 8 June 2013. The expert had been obliged to draw up his report on the basis of the case files as the applicant had refused to be examined. Expert W. had confirmed that the applicant suffered from sexual sadism, a sexual deviance, and was addicted to alcohol, even though he had not drunk since being detained. The Regional Court stressed that expert W.’s assessment confirmed the findings made by a number of previous experts, notably those made in January and May 2011 by two experts who had diagnosed the applicant with a sexual preference disorder with sadomasochistic, fetishist and paedophiliac elements and with an alcohol addiction without current consumption of alcohol. 18. Furthermore, the Regional Court found that, as required by section 316f(2), second sentence, of the Introductory Act to the Criminal Code, there was still a very high risk that, owing to specific circumstances relating to his personality and his conduct, the applicant would if released commit the most serious sexually motivated violent offences, similar to those of which he had been convicted. Endorsing the findings of expert W., in accordance with the above-mentioned previous expert reports, the court noted that the applicant had admitted to his sadistic fantasies but had been unable to address them through therapy. In Celle Prison, he had stopped participating in any activities for persons in preventive detention. The Regional Court stressed that, in his assessment of the applicant’s dangerousness, the expert had taken into consideration his advanced age of sixty-nine years. However, he had convincingly explained that the applicant’s sexual deviance had not yet been considerably alleviated thereby. Furthermore, his alcohol addiction had not yet been treated adequately. However, the consumption of alcohol further increased the high risk that the applicant would commit sexual or violent offences again if released. 19. The Regional Court considered that the prolongation of the preventive detention of the applicant, who had been detained for almost thirty years, was still proportionate in view of the considerable threat he posed to the public. It noted in that context that the applicant’s detention in a supervised residence, which it had suggested in its previous decision, was not possible in practice. 20. As regards the order issued by the Regional Court, based on Article 67d § 2 of the Criminal Code, read in conjunction with Article 66c § 1 sub-paragraph 1 of the Criminal Code (see paragraphs 49 and 54 below), that the Rosdorf Prison authorities offer the applicant specific anti-hormonal therapy, the court found that that order was necessary to guarantee the applicant sufficient care while in preventive detention. Expert W. had stressed – as he had already done in 2012 – that the prison authorities must at least attempt to treat the applicant, who was willing to undergo treatment with medication. The anti-hormonal therapy to be offered had proved to diminish sadistic fantasies and the libido, and could therefore reduce the applicant’s dangerousness. 21. On 1 August 2013 the applicant lodged an appeal against the Regional Court’s decision, for which he submitted reasons on 14 August 2013. He argued, in particular, that his preventive detention, a penalty which had been prolonged retrospectively, failed to comply with the Convention. 22. On 2 September 2013 the Celle Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed that the requirements laid down in section 316f(2), second sentence, of the Introductory Act to the Criminal Code for ordering the continuation of the applicant’s preventive detention had been met. 23. Taking into account the report submitted by expert W., the Court of Appeal held that the applicant was suffering from a mental disorder as defined in section 1(1) of the Therapy Detention Act. Referring to the Federal Constitutional Court’s case-law (see paragraphs 73-76 below), it found that a mental disorder under that Act did not require that the disorder was such as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see paragraphs 61-62 below). Specific disorders affecting a person’s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1(1) of the Therapy Detention Act. The applicant’s sexual sadism and his alcohol addiction without current consumption of alcohol amounted to a mental disorder within the meaning of that provision. 24. Moreover, there was still a very high risk that, if released, the applicant would commit the most serious violent and sexual offences, similar to those of which he had been convicted, owing to specific circumstances relating to his personality and his conduct. The applicant’s dangerousness had not been reduced through therapy; nor had he become less dangerous by his advancing age. He currently did not participate in any serious therapeutic activities and kept trivialising his offences. Moreover, expert W. had confirmed that his mental illness was difficult to treat. The Court of Appeal further endorsed the Regional Court’s finding that the applicant’s continued detention was still proportionate, despite the considerable overall length of his detention. 25. On 24 September 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Lüneburg Regional Court and the Celle Court of Appeal. He claimed that the order for the continuation of his preventive detention violated his constitutional right to liberty, read in conjunction with the constitutional right to protection of legitimate expectations guaranteed in a State governed by the rule of law. 26. The applicant argued that under the European Court of Human Rights’ well-established case-law (he referred to M. v. Germany, no. 19359/04, ECHR 2009), the retrospective prolongation of a person’s preventive detention – a penalty – beyond the former ten-year time-limit breached the prohibition on retrospective punishment under Article 7 of the Convention and did not comply with sub-paragraph (a) of Article 5 § 1 of the Convention. Moreover, his continuing preventive detention could not be justified under sub-paragraph (e) of Article 5 § 1 either. He did not suffer from a mental disease as required by that provision. In addition, the notion and scope of “mental disorder” under the applicable provisions of domestic law and in the domestic courts’ case-law was unclear. 27. The applicant further stressed that the Regional Court had recommended his placement in a supervised residence. In those circumstances, his continued preventive detention on the premises of Rosdorf Prison was no longer proportionate. He conceded, however, that his detention in the new preventive detention centre on the premises of Rosdorf Prison complied with the constitutional requirement to differentiate between preventive detention and detention for serving a term of imprisonment. 28. On 29 October 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 2182/13). The decision was served on the applicant’s counsel on 7 November 2013. 29. On 5 December 2011 the Lüneburg Regional Court, civil section, ordered the applicant’s placement in Moringen Psychiatric Hospital under the Therapy Detention Act. It found that the applicant suffered from a mental disorder for the purposes of section 1 of that Act and that there was a high risk that, if released, he would commit further serious offences. On 31 January 2012 the Celle Court of Appeal quashed that decision on the grounds that detention under the Therapy Detention Act could only be ordered once the preventive detention of the person concerned had been terminated by a final decision. 30. On 25 April 2014 the Göttingen Regional Court, in a decision reviewing the continuation of the applicant’s preventive detention, ordered the continuation of the applicant’s preventive detention. It noted that the applicant had repeatedly refused treatment with medication to diminish his libido. 31. On 15 January 2015 the Göttingen Regional Court, having consulted medical expert J., again ordered the continuation of the applicant’s preventive detention under Article 67d § 3 of the Criminal Code, read in conjunction with section 316f(2), second sentence, of the Introductory Act to the Criminal Code (see paragraphs 51 and 53 below). On 24 April 2015 the Braunschweig Court of Appeal dismissed an appeal lodged by the applicant against the decision of the Regional Court. 32. Until 20 February 2012 the applicant had been held in preventive detention in a wing of Celle Prison. He had participated in therapy with a psychologist between 2005 and 2010, but had then stopped that therapy. He had refused to participate in the alcohol addiction treatment programme offered to him or any other treatment measures. 33. On 20 February 2012 the applicant was transferred with his consent to a wing of Celle Prison for persons in preventive detention where a transitional concept had been adopted. The aim was to improve the available treatment options in the light of the duty to differentiate preventive detention and detention for serving a term of imprisonment, by reference to the European Court of Human Rights’ judgment in M. v. Germany (cited above) and the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 66-72 below). The applicant participated in group therapy sessions run by a doctor and in a social skills training course. He stopped attending the group for addicts and refused to take medication to reduce his libido for fear of side effects. 34. Since 2 June 2013 the applicant has been detained in the new Rosdorf centre for persons in preventive detention, a separate building constructed on the premises of Rosdorf Prison. 35. The conception of preventive detention in the centre was developed in order to comply with the constitutional requirement to differentiate between preventive detention and imprisonment, as defined in the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 67 and 70 below) and as further specified in the newly enacted Article 66c of the Criminal Code and in the Lower Saxony Preventive Detention Act (see paragraphs 54, 56-57 and 59-60 below). 36. Up to forty-five persons can be detained in the Rosdorf centre. Detainees are placed in apartment units measuring some 23 square metres containing two furnished rooms and a bathroom. With the exception of detainees posing a particular security risk, the detainees can move freely within the preventive detention building and on its outdoor premises from 6 a.m. to 9.45 p.m. They may furnish and paint their rooms, to which they have their own keys. The rooms are equipped with a controlled access to the internet including e-mail, telephone, television, CD and DVD player and radio. There are common rooms for residential groups consisting of some seven detainees, which include a kitchen, a dining room, a television room and rooms for games, handicraft work and exercise. The outdoor premises, measuring some 1,600 square metres, can be used for sports, recreation or gardening. 37. Persons in preventive detention in the Rosdorf centre may wear their own clothes. They can either take meals prepared by the centre’s staff or prepare their own meals (in which case they receive an allowance for purchasing food in the centre’s supermarket). Persons in preventive detention may work, but are not obliged to do so. They may receive visits regularly. 38. According to information furnished by the Government, at the relevant time the applicant was one of some thirty persons detained in the Rosdorf preventive detention centre. In order to comply with the duty to provide the necessary therapy and care and to motivate detainees to participate in the relevant therapies and treatment, the centre’s staff comprised one psychiatrist, four psychologists, five social workers and twenty-five members of the general prison service. The staffing situation was similar to that of Moringen Psychiatric Hospital, situated in the same Land and where persons were detained under Article 63 of the Criminal Code. 39. Detainees are examined at the beginning of preventive detention in order to determine the necessary therapy and care. A personal treatment plan (Vollzugsplan) is then drawn up. 40. According to the personal treatment plan drawn up for the applicant by the Rosdorf centre on 28 November 2014, it was noted that in the past, from July 2013 until August 2014, the applicant participated in group sessions aimed at preventing detainees from relapsing into excessive alcohol consumption. He then stopped attending the meetings. He also regularly participated in group sessions at which detainees discussed their experiences during leave from detention. He stopped participating in those meetings in August 2014 too, arguing that the participants were not granted sufficient additional leave. In addition, he had motivation meetings with a psychologist fortnightly until March 2014, when he stopped attending the meetings, alleging that the psychologist lacked experience. He took part in weekly residential group meetings from June 2013 until February 2014, when he stopped attending the meetings, arguing that his treatment plan did not meet his expectations. He did not take part in any structured leisure activities and spent most of his day alone watching television. He declined repeated invitations to take part in group sessions of the treatment programme for offenders. Thus, as from August 2014 the applicant no longer participated in any therapy measures. He proved reliable during leave from the detention centre under escort on a number of occasions. 41. According to the Rosdorf centre’s treatment plan for the applicant of 28 November 2014 and an internal note from a staff member of the centre, the applicant has refused regular and repeated offers to start a treatment with medication to reduce his libido, which had been recommended by expert W. in 2013, for fear of side effects. In December 2014 he showed willing for the first time to take up such treatment. | 0 |
test | 001-174955 | ENG | RUS | COMMITTEE | 2,017 | CASE OF SHIROKIKH 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 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. In application no. 30532/07 the applicant also raised a complaint under Article 6 § 1 of the Convention. | 1 |
test | 001-169649 | ENG | RUS | CHAMBER | 2,016 | CASE OF DZIDZAVA v. RUSSIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect);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) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 10. During the period from the end of September 2006 to the end of January 2007 identity checks of Georgian nationals residing in Russia were carried out in the streets, markets and other workplaces and at their homes. Many were subsequently arrested and taken to police stations. After a period of custody in police stations, they were grouped together and taken by bus to a court, which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from Russian territory. Subsequently, after sometimes undergoing a medical visit and a blood test, they were taken to detention centres for foreigners where they were detained for varying periods of time, taken by bus to airports in Moscow, and expelled to Georgia by aeroplane. (for further details as to the background of the case see Georgia v. Russia (I) [GC], no. 13255/07, § 45, ECHR 2014). 11. The applicant was born in 1959 in Senaki (Georgia) and married to Mr Tengiz Togonidze, a Georgian national born in 1958. Together they had lived in St Petersburg since 2004. In April 2006 Mr Togonidze had started suffering from coughing fits, shortness of breath and thickening of the aorta walls. 12. In May 2006 the applicant returned to Georgia because her visa had expired. Mr Togonidze, whose visa had expired on 9 February 2005 and whose registration was no longer valid either, stayed in St Petersburg. 13. At about 8.50 p.m. on 3 October 2006 Mr Togonidze was arrested by police officers in St Petersburg and placed in detention. 14. At about 3.30 p.m. on 4 October 2006 the Nevskiy District Court of St Petersburg ordered Mr Togonidze to be expelled from the Russian Federation and detained at the St Petersburg special detention centre for aliens pending his administrative expulsion on the ground that he had infringed the residence rules governing foreign nationals, namely Article 18.8 of the Code of Administrative Offences. The court also fined the applicant in the amount of RUB 1,500. 15. Mr Togonidze was subsequently brought to the reception centre for foreigners of the Main Internal Affairs Directorate for St Petersburg and Leningrad Region. Upon his arrival he was examined by a medical officer, who found that Mr Togonidze did not show any health problems preventing him from being placed in the reception centre. Mr Togonidze informed the medical staff that he suffered from asthma attacks and was subsequently placed together with another Georgian detainee who suffered from asthma in a cell measuring between 35 and 40 m2 with 25 to 30 other Georgian nationals. 16. The sanitary conditions of the cell were very poor, as the toilets were only separated from the rest of the cell by a partition measuring 1.1 m at one side, and there was a lack of fresh air. In addition, while Mr Togonidze was provided with possibilities to take walks, he was not permitted outdoor activities. 17. On 13 October 2006 Mr Togonidze was suffering from nausea and a headache and asked for medical assistance. Subsequently a medical officer checked his blood pressure and temperature, which was slightly raised. He was given paracetamol. A re-examination the same day showed that his temperature was back to normal. 18. On 14 October 2006 Mr Pataridze, Consul of Georgia in the Russian Federation at the material time, visited the detention centre. When he saw Mr Togonidze, who was having difficulties breathing and whose face had turned black, he had requested that Mr Togonidze be immediately transferred to a hospital but that request was not complied with. 19. On 16 October 2006 Mr Togonidze, together with 24 other Georgian nationals, was placed in a bus to Domodedovo Airport in Moscow with a view to his expulsion by aeroplane to Georgia. Prior to entering the bus the detainees and their belongings were searched. In addition the detainees were accompanied by 20 officers of the special police force of the Main Internal Affairs Directorate (OMON) on the bus and two further police cars escorted the bus on the way to the airport. 20. The conditions of transport in the bus were very difficult, with no air conditioning, and although the journey lasted between eight and nine hours, the officers who had been accompanying the detainees had not allowed them to open the windows. On the way to the airport the bus stopped five times to let people, allegedly for a bribe, use the toilet and purchase food. Exiting the bus was closely monitored by the accompanying police officers. 21. On 17 October 2006 between 7 and 8 a.m. the bus arrived at the airport and around 8.30 a.m. Mr Togonidze, whose health had deteriorated during the bus ride, was allowed to leave the bus upon the request of Mr Pataridze, who was awaiting the Georgian nationals at the airport. 22. Mr Pataridze indicated that when Mr Togonidze had got off the bus he had seen that he was very ill and was “suffocating like a fish out of water” and begging to be allowed to breathe fresh air. 23. On the way to the terminal Mr Togonidze collapsed after walking a few steps and died. A called ambulance was unable to resuscitate him and he was declared dead at 10.20 a.m. 24. On 18 October 2006 the Bureau of Forensic Medical Examination of the Moscow Health Department conducted an autopsy of Mr Togonidze’s corpse and indicated that his death was caused by tuberculosis. In addition blood and urine samples were taken and sent for forensic chemical examination. 25. On 19 October 2006 the Moscow Regional Prosecutor’s Office decided not to initiate criminal proceedings, as the competent prosecutor found that Mr Togonidze had died of a natural cause. 26. During the forensic chemical examination of the taken blood and urine samples methadone was detected in both samples. In regard to the urine sample a high-performance liquid chromatography (HLPC) was applied, which established 0,11 mg% methadone and 0,69 mg% methadone metabolite in Mr Togonidze’s urine. A closer inspection of Mr Togonidze’s blood was not conducted and the exact level of methadone in his blood was not established. Based on these findings the Bureau of Forensic Medical Examination of the Moscow Health Department finally concluded that Mr Togonidze had died of methadone poisoning. 27. On 8 November 2006 the decision not to initiate criminal proceedings of 19 October 2006 was quashed and the case file was forwarded for additional examination. 28. On 9 November 2006 the Moscow Regional Prosecutor’s Office decided again not to initiate criminal proceedings. This time finding that, owing to detecting methadone in the urine and blood of Mr Togonidze (see paragraph 26 above) and finding three injection marks on his corpse, there was evidence for repeated use of narcotics for a long period of time. Therefore the prosecutor concluded that Mr Togonidze took the methadone voluntarily and that his death was caused by negligent poisoning with methadone. 29. On 14 December 2006 the General Prosecutor’s Office of the Russian Federation proposed that the decision of 9 November 2006 would be quashed and further investigations would be conducted. It held that thus far the deterioration of Mr Togonidze’s health during the bus ride had not sufficiently been examined and that relevant officials had not been interviewed. 30. On 15 December 2006 the Federal Migration Service challenged the allegation that Mr Togonidze had died of methadone poisoning, saying that he had died of tuberculosis. 31. On 20 December 2006 a criminal investigation was initiated against an unknown person for selling methadone to Mr Togonidze at an unknown date and unknown location. 32. On 30 July 2007 the decision to dismiss criminal proceedings was quashed and the case was forwarded for additional examination. In particular it was held that the dismissal was premature and that it should be established whether any narcotics were found on Mr Togonidze, the amount of methadone taken by him, whether such a dose could be lethal, why Mr Togonidze’s health deteriorated during the bus ride and whether he received adequate health care during his detention and transfer to the airport. 33. On 8 August 2007 the criminal proceedings were dismissed and on 9 August 2007 the dismissal was quashed again, as the instructions of 30 July 2007 had not been fulfilled. 34. On 14 August 2007 the criminal proceedings were dismissed again and the dismissal was quashed on 11 December 2007. 35. On 20 December 2007 criminal proceedings were finally dismissed. A subsequent request to quash the dismissal was denied on 14 February 2008 and confirmed on 1 September 2010. 36. Based on the documents provided by the Government, and in particular on the autopsy report and the report of the forensic chemical examination, the applicant submitted her own medical report regarding her husband’s death. The report was compiled by a forensic pathologist, Dr John Clark – a former lecturer at different universities in the United Kingdom and chief pathologist for the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) – supported by a forensic toxicologist, Dr Hilary Hamnett. 37. The experts pointed out that the Russian authorities gave the cause of death as methadone intoxication based on the fact that methadone was detected in the blood and urine of Mr Togonidze and that he had three injection marks on his body. They also emphasised that the authorities concluded from these facts that Mr Togonidze had repeatedly used narcotics for a long period of time. As regards the needle punctures they pointed out that the injection mark at the bend of the left elbow stemmed most probably from the resuscitation attempts at the airport, in which intravenous drugs were given, and that the other two marks, on the lower third of the left shoulder, appear as a very unusual site for self-injection of drugs. They further indicated that methadone is usually taken in liquid form and only very uncommonly by injection. In addition, according to their opinion, the last few hours of Mr Togonidze’s life did not coincide with the ‘normal’ death of a person dying from methadone intoxication. Being a sedative, people dying from methadone intoxication typically do so after a period of unconsciousness. Mr Togonidze, however, did not show any signs of drowsiness and was able to talk to the Georgian consul and walk a few steps before suddenly collapsing. Lastly they pointed out that the conclusion of repeated drug use was not confirmed by an analysis of a hair sample or finding any supporting evidence, such as needles, ampoules or syringes, on Mr Togonidze’s corpse or in his cell. 38. As regards the forensic chemical examination the experts indicated that the applied analyses appear not to have been carried out according to international recommendations and that the level of methadone was only measured in the urine and not in the blood. In their opinion it is unacceptable to conclude intoxication on urine levels alone, as drugs accumulate in the bladder over time and only blood levels can give an indication of a likely intoxication or incapacitation. 39. In sum the forensic pathologist concluded that there was no scientific justification for giving methadone intoxication as the cause of death. He himself would have given the cause of death as suppurative bronchopneumonia due to chronic obstructive airways disease. He further indicated that, given Mr Togonidze’s chronic lung disease, he was more likely to develop a chest infection and to progress his pneumonia in a crowded, airless space. The deterioration of his health, however, would have been noticeable, as he would have been unwell and showed signs such as wheezing and coughing. A timely hospitalisation and antibiotic treatment would have been the correct course of action. | 1 |
test | 001-179664 | ENG | BGR | ADMISSIBILITY | 2,017 | DINCHEV v. BULGARIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 1. The applicant, Mr Veselin Angelov Dinchev, is a Bulgarian national, who was born in 1952 and lives in Sofia. He was represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimitrova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant brought civil proceedings against his former employer, claiming that he had been dismissed unlawfully. He asked to be reinstated and sought damages of over 11,000 Bulgarian levs (BGN corresponding to about EUR 5,500). His claim was rejected at first instance by the Sofia District Court, but granted almost in its entirety on appeal by the Sofia City Court on 17 March 2005. 5. The other party, his former employer, a company, appealed in cassation in May 2005. The applicant submitted a written response to the cassation appeal. His response was dated 21 July 2005; it was received at the Sofia City Court on 25 July 2005. The file was then sent by the Sofia City Court to the Supreme Court of Cassation (“the SCC”) for examination. The SCC gave the file a number in September 2005 and scheduled a hearing for 9 December 2008. 6. In the meantime, a new Code of Civil Procedure was adopted in July 2007, a major part of which was to enter into force on 1 March 2008. According to paragraph 2 (4) of the Code’s Transitional and Concluding Provisions, all labour disputes pending before the SCC and in which a hearing had been scheduled for later than 30 June 2008 had to be transferred to “the appropriate court of appeal”. 7. On 7 August 2007 the SCC terminated the proceedings before it and sent the case to the Sofia Court of Appeal (“SCA”) for information and action. The applicant was not informed of the transfer of the case to the SCA and the applicant’s written response to the cassation appeal of his former employer was not transmitted to the SCA. 8. On 6 and 19 February 2008 the SCA sent two letters to the other party, the applicant’s former employer, informing the company that the proceedings in the case it had brought would be terminated if it failed to pay the requisite court fee. The company replied on 5 March 2008 that it had paid the fee. 9. The SCA scheduled a hearing for 27 May 2008. It notified the parties of the hearing via publication in the State Gazette, in accordance with the applicable legal provision (see paragraph 13 below). The record of the hearing showed that the SCA had noted that the parties had been regularly notified and had not sent representatives, and also that the case was ready for decision. 10. The SCA examined the company’s cassation appeal on the merits. It delivered a final judgment on 23 July 2008, quashing the decision of the Sofia City Court which had upheld the applicant’s claim. The SCA noted in its judgment that the applicant had made no submissions in respect of the arguments and claims put forward in the cassation appeal. The court then observed that, taking into account the submissions of the company and the available information in the case file, the company’s counterclaims against the applicant were justified. The SCA found in favour of the applicant’s former employer. 11. The applicant only learned about this decision in November 2008 when he inquired at the SCC’s registry about the date of the hearing in his case before the SCC, as he had repeatedly done on previous occasions in 2006 and 2007. Until then he believed the hearing was going to take place on 9 December 2008 as scheduled and as the SCC’s website continued to indicate at the time. 12. A new Code of Civil Procedure (“the 2007 Code”) was adopted in July 2007 and the larger part of it entered in force on 1 March 2008. According to paragraph 2 (5) of the Code’s Transitional and Concluding Provisions, cassation appeals in labour disputes concerning unlawful dismissals, which were pending before the SCC and in which a hearing had been scheduled for a date subsequent to 30 June 2008, had to be transferred to “the competent court of appeal”. 13. Article 218d of the Code of Civil Procedure 1952 (“the 1952 Code”), in force until 1 March 2008, provided that before the end of each month the SCC should publish in the State Gazette the dates on which it would hold hearings and the cases to be heard during the following month. The second sentence in that provision stated that “when the circumstances so required, the parties received notice of the hearing”. This was reproduced in Article 289 of the 2007 Code. 14. The general rules for summoning to court hearings can be found in Article 41 to Article 52 of the 1952 Code and in Article 37 to Article 55 of the 2007 Code. Those stipulate, inter alia, that a court notice or a summons has to be delivered in person or via an intermediary, by a court clerk or by registered mail, at the address given in the case. 15. Article 303 of the 2007 Code provides that an interested party can request the reopening of civil proceedings which have ended with a decision which has acquired res judicata. Requests for reopening are examined by the SCC (Article 234, the 2007 Code). Reopening can be requested within three months as from the moment in which a party became aware of the facts that would serve as a ground for the reopening (Article 305, the 2007 Code). Reopening in such cases can be requested on the basis of specific grounds, which are exhaustively listed in the 2007 Code. 16. Article 303 § 1(5) of the 2007 Code (and before that Article 231 § 1e of the 1952 Code) stipulates in particular that a party to a case can seek reopening when in breach of the relevant rules the party has been deprived of the opportunity to take part in the proceedings and has not been adequately represented, or when the party could not appear in person or be represented before the court for reasons beyond that party’s control. 17. In an interpretative decision, delivered by a plenary of the court and binding all courts, the SCC clarified in 2004 the type of circumstances necessitating a departure from the special procedure for summoning to a cassation hearing (тълк. реш. № 2 от 2.07.2004 г. по тълк. гр. д. № 2/2004). It held that failure in such cases to summon the parties in accordance with the general rules for summoning (see paragraph 14 above for those rules) could be a ground for allowing reopening of the proceedings. Such circumstances include the rescheduling of a hearing for a new date, despite the initial summoning to a different date having been fully in compliance with the legal requirements. In another interpretative decision of 2017 the SCC further clarified that the party seeking reopening of the proceedings is allowed to submit evidence before the SCC in support of his or her claim that the circumstances justified reopening (тълк. реш. № 7 от 31.07.2017 г. по т. д. № 7/2014, ОСГТК). 18. The SCC has allowed requests for reopening on the above-indicated grounds in a number of decisions (see, among many others, реш. № 10 от 9.02.2010 на ВКС по гр. д. № 973/2009 г., ГК; реш. № 689 от 30.12.2010 на ВКС по гр. д. № 1731/2009 г., ГК; реш. № 329 от 10.10.2012 на ВКС по гр. д. № 289/2012 г., ГК; реш. № 338 от 27.12.2013 на ВКС по гр. д. № 5550/2013 г., ГК), including in comparable circumstances to those of the applicant in the present case (реш. № 480 от 1.10.2009 на ВКС по гр. д. № 2194/2008 г.). In two other decisions in cases with similar circumstances to those of the applicant, different formations of the SCC found that there were no grounds for reopening in the specific circumstances of these cases and did not allow it (see реш. № 500 от 7.10.2009 по гр. д. № 4318/2008, II ГК; реш. № 798 от 28.10.2009 по гр. д. № 3714/2008, IV ГК). | 0 |
test | 001-147889 | ENG | RUS | COMMITTEE | 2,014 | CASE OF SHALYA 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 applicant was born in 1981 and lives in the Krasnodar Region. 5. On 29 November 2010 the applicant was arrested on suspicion of murder. On 27 October 2011 and other dates he was additionally charged with membership in a criminal syndicate and other offences. 6. On 27 January, 19 April, 19 July, 20 September, 17 October and 25 November 2011, 19 January, 16 April and 19 October 2012 and on other dates the authorised period of the applicant’s detention was extended. Each time the courts relied chiefly on the gravity of the charges against him. On 1 November 2012 the Krasnodar Regional Court considered and rejected, in a summary fashion, the applicant’s and his co-defendants’ appeals against the extension order of 19 October 2012. 7. The jury found the applicant not guilty of the offences he was charged with. On 19 June 2013 the applicant was acquitted and released. On 30 September 2013 the Supreme Court of the Russian Federation upheld the acquittal on appeal. 8. Invoking his “right to rehabilitation” under Article 133-135 of the Code of Criminal Procedure, the applicant brought a claim against the Federal Treasury for the loss of income and reimbursement of legal fees. He did not seek any compensation for non-pecuniary damage. By judgment of 28 January 2014, the Krasnodar Regional Court granted his claim in part. | 1 |
test | 001-139998 | ENG | ROU | CHAMBER | 2,014 | CASE OF MATEESCU v. ROMANIA | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 6. The applicant was born in 1953 and lives in Bucharest. 7. He is a doctor with substantial experience, having been a general practitioner for more than eighteen years. In this capacity, he currently has his own private practice, with two employees. He also teaches at the Bucharest Faculty of Medicine and has authored several works in the field of general medicine. 8. In 2006 the applicant graduated from law school; one year later, he registered to become a lawyer, after having passed the annual entrance examination organised by the Bucharest Bar. On 18 December 2007 the Bucharest Bar issued a decision validating the results of the examination and declaring that the applicant was admitted to the Bar. 9. The Bucharest Bar further decided on 14 February 2008 to register the applicant as a trainee lawyer (avocat stagiar) as of 15 February 2008. A two-year traineeship period being an obligatory condition for obtaining a licence to practise as a lawyer, the applicant signed a traineeship agreement (contract de colaborare) with the B.P. private law firm. On 15 February 2008 the Bar approved the applicant’s traineeship within the firm. 10. On 13 March 2008 the applicant submitted a request to the Dean of the Bucharest Bar to be allowed to pursue his two-year traineeship (stagiu) in compliance with section 17 of Law no. 51/1995 regulating the legal profession, notwithstanding the fact that he simultaneously had his own private medical practice. He considered that “the medical profession was not incompatible with the dignity of the legal profession or the lawyers’ rules of conduct within the meaning of Rule 30 of the Rules governing the Legal Profession”. On 20 March 2008, applying section 14 (b) and section 53 (2) (e) of Law no. 51/1995, the Bucharest Bar rejected the applicant’s request. In its decision the Bar held: “the applicant’s request to practise simultaneously as a lawyer and as a doctor is dismissed, and the applicant must consequently opt for one of the two professions.” 11. On 21 April 2008 the applicant contested that decision before the National Bar Association. He challenged the reason for the dismissal of his request, which, citing section 14 (b), referred to ineligibility to practise as a lawyer for anyone who already pursued a “profession that infringes the dignity and the independence of the legal profession or is contrary to good morals”. He contended that his professional CV, including a Ph.D. in medicine, a career of teaching at the university and the authorship of several books on medicine, could on no account infringe the dignity of the legal profession. At the same time, he pointed to the fact that he was neither an employee nor a trader, as proscribed by the legislation regulating the activities of lawyers. On 18 June 2008 the National Bar Association upheld the Bucharest Bar’s decision, this time on the basis of section 15 of Law no. 51/1995, which enumerated “exhaustively” the professions that were compatible with the profession of lawyer (see “Relevant domestic law” below). As the practice of medicine was not specified among those professions, the applicant’s request was dismissed. 12. That decision was contested before the Bucharest Court of Appeal. In its reply to the applicant’s submissions, the respondent argued, firstly, that the combined interpretation of sections 14 and 15 of the Law led to the conclusion that no other profession could be practised in parallel with that of a lawyer, except for those restrictively enumerated under section 15; furthermore, the practice of two liberal professions at the same time was not permitted by the law, nor was it desirable, in view of the fact that each liberal profession required 100% dedication on the part of the person practising it. 13. On 20 January 2009 the court allowed the applicant’s claims, holding that section 14 (b) was not applicable, in so far as “the profession of doctor does not impinge on the independence of the profession of lawyer”. The court further held that any restriction on practising a profession must be expressly and unequivocally prescribed by law, which was not the case in this instance. Moreover, the Romanian Constitution protected the right to work, which could not be subject to any limitations, with a few exceptions expressly enumerated in section 53, such as national security reasons, protection of public order, health and public morals or protection of individual rights and freedoms, none of which was applicable in the applicant’s case. Furthermore, the prohibition on practising as a lawyer while also practising as a doctor was not included in the text of section 14 (b) of Law no. 51/1995, which referred only to professions that infringed the dignity and the independence of the legal profession or were contra bonos mores. The court further held that section 15 of the Law did not contain an exhaustive list of the professions compatible with the profession of lawyer, in spite of the National Bar Association’s interpretation of that provision to the effect that if the medical profession was not included in the text among the compatible professions, this meant, by converse implication, that it was not compatible with the profession of lawyer. The incompatible professions were enumerated exhaustively in section 14, and the profession of doctor was not among them. The assertion that practising a liberal profession required total dedication and implicitly a lot of time on the part of the practitioner could not be taken into consideration for the assessment of the lawfulness of the decisions taken by the local and national Bars; not having enough time to devote to clients’ cases had nothing to do with the independence of the legal profession. The court thus confirmed the applicant’s right to practise both professions simultaneously, annulling the Bars’ decisions. 14. The National Bar Association appealed against that judgment to the High Court of Cassation and Justice. It argued that while section 14 of the Law listed the professions that were incompatible with the profession of lawyer in a generic manner, giving examples, section 15 regulated, strictly and restrictively, the exceptions that were allowed, among which the profession of doctor was not mentioned. At the same time, the simultaneous practice of both professions infringed the principle of the independence of lawyers. In wanting to practise both professions, the applicant demonstrated only his extreme mercantilism, as he “minimised the importance of these professions, treating them as mere sources of income”. 15. On 24 June 2009 the High Court allowed the appeal and dismissed the applicant’s request, holding that the combined interpretation of sections 14 and 15 led to the conclusion that the list of compatible situations was exhaustive and thus section 15 referred to the only professions that by law were compatible with that of a lawyer; the High Court pointed out that even if the provisions of Rule 30 of the Rules governing the Legal Profession, relied on by the applicant in his defence, also enumerated other situations of incompatibility and compatibility, they were of inferior rank to a law and therefore they could not contradict those of the law itself. The relevant provisions of the Romanian Constitution read as follows: “(1) The right to work shall not be restricted. Everyone has the free choice of his or her profession, trade or occupation, and workplace.” “(1) The exercise of certain rights or freedoms may only be restricted by law, and only if necessary, as the case may be, for: the defence of national security, of public order, health or morals, or of citizens’ rights and freedoms; the conduct of a criminal investigation; or prevention of the consequences of a natural calamity, disaster or extremely severe catastrophe. (2) Such restriction shall be ordered only if necessary in a democratic society. The measure shall be proportionate to the situation that caused it, shall apply without discrimination, and shall not impair the existence of such right or freedom.” “(1) A person who meets the following conditions may be a member of a Bar in Romania: (a) he or she is a Romanian citizen and a holder of civil and political rights; (b) he or she is a law faculty graduate or a doctor of law (Ph.D.); (c) he or she is not in one of the categories of ineligibility specified by this Law; (d) he or she is medically fit to practise as a lawyer. (2) Compliance with the condition in point (d) of subsection (1) above shall be proved by means of a medical certificate attesting that the person is in good health, issued on the basis of findings by a medical board constituted under the terms specified in the Rules governing the legal profession.” “Practising the profession of lawyer shall be incompatible with: (a) a salaried activity within a profession other than the legal profession; (b) occupations affecting the dignity and independence of the legal profession or good morals; (c) direct involvement in trading activities.” “Practising the profession of lawyer shall be compatible with: (a) the position of member of parliament or senator, or member of a local or county council; (b) teaching activities, and offices in higher legal education; (c) literary and publishing activities; (d) the function of arbitrator, mediator, conciliator or negotiator, tax adviser, adviser on intellectual property, adviser on industrial property, licensed translator, administrator or liquidator in procedures of judicial reorganisation or liquidation, in accordance with the law.” “(1) Admission to the profession shall be obtained on the basis of an examination organised by the Bar, under the provisions of this Law and the Rules governing the profession. (...)” “(...) (2) The conditions for completing the traineeship and the rights and obligations of lawyers on probation, and of supervising lawyers and the Bar towards them, shall be regulated by the Rules governing the profession. (3) The training term shall be suspended if the lawyer performs military service or is conscripted, if he or she is absent from the profession for good reasons, or if the professional guidance is terminated through no fault of the lawyer on probation. The training already completed shall be taken into consideration when calculating the completion of the term. (4) After the training term is completed, the lawyer on probation shall take the examination to become a permanent lawyer.” “(1) A Bar Council shall be composed of five to fifteen members, elected for a four-year term of office. The President and Vice-President of the Bar shall be included in that number. (2) The powers of the Bar Council shall be as follows: (...) (e) to check and establish that the lawful requirements have been met as regards applications for admission to the profession, and to approve admission to the profession on the basis of an examination or an exemption from the examination; (...)” “The Council of National Bar Associations shall have the following powers: (...) (o) it shall check, at the request of the persons concerned, that the decisions of the Bar Councils on admission to the profession are lawful and based on good grounds; (p) it shall annul decisions by the Bar on grounds of unlawfulness, and settle complaints and legal disputes brought against decisions adopted by Bar Councils, in the circumstances specified by law and the Rules governing the profession; (...)” The relevant parts of the Rules governing the Legal Profession read as follows: “In order to be registered and to practise this profession, the lawyer must not be in one of the situations of incompatibility referred to in the law.” “(1) The following are incompatible with the practice of the profession of lawyer, unless declared otherwise by a lex specialis: (a) personal trading activities, performed with or without a licence; (b) the status of associate in private companies such as a general partnership (societate în nume colectiv), a limited partnership or a partnership limited with shares (societate comercială în comandită simplă sau în comandită pe acțiuni). (c) the status of manager of a limited partnership with shares private company (societate în comandită pe acțiuni); (d) the status of CEO, sole manager or member of the board of directors of a private company such as limited liability or a joint-stock company (societate comercială cu răspundere limitată sau pe acțiuni). (2) The lawyer may be an associate or partner in a limited liability or a joint- stock private company (societate comercială cu răspundere limitată sau pe acțiuni) (3) The lawyer may be a member of the Board of a limited liability or a joint-stock private company, on condition that he/she brings this information to the Dean of the Bar [...] | 1 |
test | 001-153474 | ENG | GBR | CHAMBER | 2,015 | CASE OF O'DONNELL v. THE UNITED KINGDOM | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 5. The applicant, Mr Matthew O’Donnell, is an Irish national who was born in 1980. He is currently detained at HMP Maghaberry. 6. The applicant has an I.Q. of 62, which is within the bottom 1% of the general population. He has an understanding of spoken English equivalent to that of a six year-old child. 7. On the morning of 13 October 2004, the body of Mr Williamson was found on the banks of the Blackwater River in County Tyrone. 8. The applicant had spent most of the previous day drinking in public with the deceased and a third man, Mr Samuel Houston. There was evidence from witnesses that both Mr Houston and the applicant had been threatening and aggressive towards a number of individuals including the deceased. One witness also stated that, when Mr Houston produced a knife and said he was going to kill the deceased, the applicant encouraged him to “just kill him”. There was also evidence that the applicant and Mr Houston asked the deceased to come out to fight with them after they had been refused admission to a public house. 9. The deceased was last seen alive at around 1:30 a.m. on 13 October 2004 when he, Mr Houston and the applicant were seen making their way to a park area beside the Blackwater River. A post-mortem examination of the deceased revealed that he had been extensively beaten before his death and that he had sustained a number of knife wounds including a severance of the carotid artery. 10. The police searched the flat where the applicant was staying and found two sets of clothes which were heavily stained with the blood of the deceased (two sets of sweatshirts, a pair of blue jeans and pair of beige and navy tracksuit bottoms). The fact that two sets of clothes were found was material to the prosecution’s case that Mr Williamson was killed by two men. One of the items of clothing, namely the beige and navy tracksuit bottoms, had the applicant’s name tag ironed on to the back of the garment. A plastic bag containing a knife was also found at the applicant’s premises. The plastic bag and the knife contained blood which matched the blood of the deceased. Medical evidence indicated that the knife was one that could have been used to inflict the wounds sustained by the deceased. 11. Mr Houston admitted the manslaughter of Mr Williamson and was sentenced to ten years’ imprisonment. 12. The applicant was arrested in the Republic of Ireland. He was interviewed by Irish police officers about the death of Mr Williamson. Those interviews were videotaped. He was subsequently extradited to Northern Ireland in April 2007. 13. At the applicant’s trial, the prosecution sought to rely on the interviews which had been conducted in the Republic of Ireland. The applicant challenged the admissibility of those interviews, inter alia on the ground that the proper procedures for interviewing a suspect with a mental handicap had not been followed. A voir dire (that is to say, a hearing to determine the admissibility of the contested evidence) was held, in the course of which evidence was led from clinical psychologists and psychiatrists who had examined the applicant and watched the interview tapes. At the conclusion of the voir dire, the trial judge decided to exclude the interviews from evidence. 14. At the close of the prosecution case, the trial judge rejected a defence submission that there was no case to answer. 15. The defence then applied to the trial judge for a ruling that the applicant’s mental condition made it undesirable for him to be called to give evidence. The effect of a favourable ruling would have been that the jury would not be permitted to draw an adverse inference from any failure of the applicant to give evidence in his own defence (see 28 below). In the course of the trial judge’s consideration of that application, a second voir dire was held, in which further evidence was given by one of the clinical psychologists, Dr Davies. The trial judge refused to allow Dr Davies to give evidence concerning the conclusions he had reached from watching the interview tapes. The trial judge reasoned that, once the interview tapes were excluded from evidence, they were excluded from evidence for all purposes. The trial judge did, however, hear evidence from Dr Davies as to his concern that the applicant’s low I.Q. would place him in considerable difficulty if he were to give evidence in his defence. In Dr Davies’ view, the applicant would be highly suggestible, he would have problems understanding questions and would find it difficult to give coherent responses. 16. In considering the defence application, the trial judge referred to the evidence of Dr Kennedy, consultant psychiatrist. The trial judge read out three passages of her report, the last which was the following: “He [the applicant] reports having had difficulty in comprehending court proceedings in the past as long words are used and people talk at speed. However, if account is taken of his need to have material simply phrased and to allow for adequate consultation with others to ascertain his understanding and clarify where necessary, it is my opinion that he should be capable of following proceedings and actively contributing to them.” 17. Turning to Dr Davies’ evidence, the trial judge noted that Dr Davies had entered a significant reservation in relation to the applicant’s ability to give evidence. Dr Davies had expressed doubts as to whether even in circumstances such as those referred to by Dr Kennedy the applicant could give a coherent account. 18. The trial judge refused the defence application, finding that he could control the manner in which questions would be asked and could ensure that no unfairness would result. In the event that the applicant chose not to give evidence the judge informed the parties that he would give an adverse inference direction to the jury. 19. The applicant elected not to testify but Dr Davies was permitted to give evidence to the jury as to the applicant’s vulnerability and the difficulties he would have faced. 20. The prosecution invited the jury to draw an adverse inference from the applicant’s failure to give evidence. The trial judge’s summing up contained the following direction to the jury: “I have said to you that the defendant has not given evidence and that is his right. He is entitled not to give evidence, to remain silent and to make the prosecution prove his guilt beyond reasonable doubt. Two matters arise from his not giving evidence. The first is that you try this case according to the evidence. You will appreciate that the defendant has not given evidence at this trial to undermine, contradict or explain the evidence put before you by the prosecution. The second matter, as you heard him being told when I addressed Mr McGrory [counsel for the applicant], is that the law is that you may draw such inferences as appear proper from his failure to give evidence. It is for you to decide whether it is proper to hold the defendant’s failure to give evidence against him when deciding whether he is guilty. On the basis of the evidence of Dr Davies, Mr McGrory invites you not to hold it against the defendant that he has not given evidence before you. Dr Davies’s contradicted evidence is that the defendant has an IQ of 62 and therefore is a person of very limited intellectual ability who should be regarded as mentally handicapped. He has the ability of a six year-old to understand spoken English. Dr Davies said that mentally handicapped people find giving evidence very challenging and his ability to provide a coherent and consistent account and to understand the implications of his replies is limited. Dr Davies said that he seems to have difficulty in functioning as an average person and has difficulty in maintaining relationships, keeping a job and performing everyday tasks such as looking after money. Dr Davies’s evidence about the accused and the abilities of mentally handicapped people in general about which I have just reminded you is an important factor to bear in mind, but there are others that you should bear in mind and consider as well. There is no evidence that the defendant is not fit to stand his trial; in other words, it has not been suggested that he cannot understand questions, nor has it been suggested that he cannot instruct his legal advisers as to the nature of his case. It has not been suggested that he is unable to remember what happened that night, indeed, Dr Davies did not ask him to recall the events of that night, so you do not know from what Dr Davies has said to what extent the defendant can explain what he did or where he went, indeed, when he was charged with Mr Williamson’s death he replied, ‘I didn’t go near him’, not, ‘I don’t know anything about it’, or, ‘I didn’t have anything to do with it.’ You have to consider along with many other questions you have to consider whether the answer he gave is not merely a denial of guilt, which it plainly is, but whether it implies that he knows something about the circumstances of Mr Williamson’s death. You should also consider whether the defendant, despite his undoubted handicaps, his low IQ and limited comprehension of English, could have answered questions in the witness box. I say that because Mr McGrory said in his closing remarks to you, ‘What chance would a man like that have in proceedings like this?’ I must tell you that the defence were well aware that had the defendant given evidence the court would have ensured he was treated fairly and given every chance to put his case and in particular that questions were simply phrased and put in such a way that they did not suggest the answer to him. It is not enough that a person would find it difficult to give evidence to excuse them from giving evidence. Many people have to give evidence and find it difficult - even children as young as six. Fortunately, we do not have that very often but it does happen sometimes. Every effort is made to simplify the proceedings and the form of questions to ensure that people like that can give evidence. If you think that because of the evidence of Dr Davies you should not hold it against the defendant that he has not given evidence do not hold it against him, but if you are satisfied beyond reasonable doubt that the evidence he relies on, that is, the evidence of Dr Davies, presents no adequate explanation for his absence from the witness box then you may hold his failure to give evidence against him. If you consider that there is no excuse for his not giving evidence what proper inferences - in other words, what conclusions - can you draw from the defendant’s decision not to give evidence before you? You may think that the defendant would have gone into the witness box to give you an explanation or answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence. It is for you to decide whether it is fair to hold that failure against him. In considering that it might be useful for you to consider what sort of questions might the defendant have had to face if he had given evidence.” 21. The trial judge went on to give examples of questions that might have been asked of the defendant had he given evidence before emphasising that the jury should not find him guilty only or mainly because he had not given evidence, but that they might take it into account as some additional support for the prosecution’s case and in deciding whether or not the case made on his behalf was or might be true. 22. The applicant was convicted by the jury and sentenced to life imprisonment with a minimum term of twelve years. He appealed against his conviction on three grounds: (i) that the trial judge had erred in not allowing Dr Davies to give evidence concerning the conclusions he had reached from watching the interview tapes; (ii) that the trial judge had erred in rejecting the applicant’s submission that it was undesirable for him to be called to give evidence; and (iii) that the trial judge had failed to direct the jury that they should not draw adverse inferences unless they were satisfied that there was case to answer. 23. On 28 January 2009 an application for leave to appeal was refused by a single judge of the Court of Appeal in Northern Ireland. A renewed application was dismissed by the full court on 15 January 2010. 24. In respect of the first ground of appeal, namely the exclusion of the video evidence, the Court of Appeal accepted that the videotapes were admissible to demonstrate how the applicant expressed himself and to demonstrate that he was suggestible. However, the portion of the videotape on which the applicant had intended to rely did not in fact touch on suggestibility and, in any event, the applicant’s suggestibility was not in dispute between the experts who had testified for the prosecution and defence. Therefore, the omission of the evidence would not have had any material effect on the trial judge’s decision. 25. In respect of the second ground of appeal, namely the ruling under Article 4(1)(b) of the Criminal Evidence (Northern Ireland) Order 1988, the Court of Appeal considered that the trial judge had reached his conclusion in a proper and balanced manner and his conclusion was not unreasonable. The Court of Appeal noted that there was competing expert evidence in the case. On the one hand, there was the evidence of Dr Kennedy, a consultant psychiatrist, whose opinion was that the applicant “should be capable of following proceedings and actively contributing to them” if account were taken of his need to have material simply phrased and if he was allowed adequate consultation with others to ascertain his understanding and clarify matters where necessary. On the other, Dr Davies, a clinical psychologist, entered a significant reservation in relation to the applicant’s ability to give evidence. He did not know whether even where the procedures were simplified and the questions simply phrased, the applicant could give a coherent account of events. The Court of Appeal found that there was nothing unreasonable about the manner in which the trial judge preferred the evidence of the consultant psychiatrist over that of the clinical psychologist. 26. For the third ground, which related to the trial judge’s direction on a case to answer, the Court of Appeal recognised that, in England and Wales, trial judges were required to direct juries that they, the jury, had to find that there was a case to answer on the prosecution evidence before drawing an adverse inference (see paragraph 28 below). By contrast, in Northern Ireland, it was left to the judge in each case to decide whether to direct the jury in this manner, depending on the strength of the prosecution case. The Court of Appeal considered that, in the applicant’s case, the absence of such a direction to the jury reflected the trial judge’s view that this was not a case where the evidence was so weak as to require such a direction. The substantial body of evidence against the applicant supported that view. The trial was not, therefore, unfair. The Court of Appeal nonetheless recommended that the specimen direction in Northern Ireland should be amended to follow the approach taken in England and Wales, by adding a direction that the jury should not draw an adverse inference unless they consider that the prosecution case is such that it clearly calls for an answer. 27. The applicant asked the court to certify questions of general public importance for the consideration of the Supreme Court. It refused to do so in a decision handed down on 29 January 2010. | 0 |
test | 001-172440 | ENG | RUS | GRANDCHAMBER | 2,017 | CASE OF NAGMETOV v. RUSSIA | 2 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Angelika Nußberger;Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Dmitry Dedov;Erik Møse;Guido Raimondi;Helen Keller;Julia Laffranque;Ledi Bianku;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Paul Lemmens;Pauliine Koskelo;Paulo Pinto De Albuquerque;Síofra O’Leary;Stéphanie Mourou-Vikström;Yonko Grozev;Ksenija Turković | 9. The applicant was born in 1949 and lives in Makhachkala, Republic of Dagestan, Russia. 10. On 25 April 2006 the applicant’s son, Murad Nagmetov, participated in a public gathering in the village of Miskindzha, in the Dokuzparinskiy district of Dagestan. Several hundred people took part, alleging corruption by local public officials. At around 3 p.m. officers from the special mobile unit encircled the participants and fired several warning shots into the air. 11. Thereafter the gathering was dispersed by the authorities with the use of firearms (see also Primov and Others v. Russia, no. 17391/06, §§ 1518, 12 June 2014). Murad Nagmetov was wounded by a tear-gas grenade and died from his wounds. Five other people were seriously wounded; a large number of people sustained injuries and were arrested. 12. On the same day the prosecutor of the Republic of Dagestan initiated criminal proceedings on charges of murder and illegally handling firearms (Articles 105 and 222 of the Criminal Code) and assigned the case to an investigator. 13. A forensic expert examined the deceased’s body and extracted the objects that had killed him. 14. On the same day, the investigator commissioned a ballistics report from the Forensic Expert Centre of the Dagestan Ministry of the Interior to determine the type of the grenade, the type of rifle used to fire it and whether the grenade had striae that could be used to identify that rifle. 15. On 11 May 2006 the ballistics expert issued a report and concluded as follows: “1. The forensic expert was given the following two objects for examination: a grenade with a special charge; and an obturator with a special charge (a 23 mm cartridge used with a carbine type KS-23 (KS-23M)). It has not been possible to determine the exact make of the tear-gas grenade. 2. ... It would not be possible to use the obturator on the body of the grenade to identify the specific weapon used. It would however be possible to use the separate obturator to identify the weapon used, if the weapon were provided for examination.” 16. On 26 June 2006 the investigating authority commissioned another ballistics report to identify the rifle used to fire the grenade extracted from the body of the applicant’s son. On 6 July 2006 the Forensic Expert Centre of the Dagestan Ministry of the Interior declined to carry out an examination, referring to the absence of “facilities or equipment for test-shooting 23 mm canisters with special gases”. 17. On an unspecified date, a number of carbines used by officers of the special mobile unit on 25 April 2006 were seized. 18. In July and August 2006 the investigating authority commissioned ballistics reports from the Forensic Expert Centre of the Dagestan Ministry of the Interior and another local expert institution. However, the reports were not produced, apparently, on account of lack of sufficient technical facilities. 19. On 6 September 2006 the Federal Office of Forensic Examination of the Federal Ministry of Justice was asked to prepare a ballistics report in order to determine which rifle had been fired at the victim. The investigating authority submitted the objects extracted from the victim’s body, as well as thirteen carbines. 20. On 19 October 2006 the authorities took the decision to open another criminal case concerning the charge of abuse of power by a public official causing death (Article 286 of the Criminal Code). It appears from the decision that it concerned persons other than the applicant’s son. The decision read as follows: “It was established that police officers had had recourse to firearms ... Officers from the special mobile unit fired gunshots, using 23 mm cartridges, and teargas grenades, acting in violation of a directive dated 5 November 1996 and in excess of their powers... It is prohibited to fire these tear-gas canisters at a person. As a result, Mr N. and Mr A. sustained injuries.” 21. The above-mentioned cases were subsequently joined. 22. On 8 November 2006 the Federal Office of Forensic Examination issued a report, the relevant parts of which read: “ ... As the relevant 23 mm cartridges had not been submitted for test shots, a request for 23 mm Volna cartridges was made to the relevant department of the Ministry of the Interior of the Russian Federation ... [Footnote: Volna cartridges are used for training purposes relating to the use of KS-23 and KS-23M carbines. These cartridges are similar to those normally used with these carbines. The only difference is that they do not contain the irritating chemical substance.] ... The research part ... 2. ... I note that the tear-gas grenade has no striae left by the carbine used to fire it. This may be explained by the fact that the grenade could not have had contact with the interior of the carbine as it had been loaded into it with the aid of two obturators ... 5. Test shots have been carried out in respect of the KS-23 and KS23M carbines that were submitted for the examination. The purpose of the test shots was to observe the striae left on the obturators of the grenades fired from these carbines, and to compare the striae with the striae left on the obturator of the grenade used against the victim. I have used 23 mm Volna cartridges for the test shots. These cartridges are similar to those that were submitted for the examination ... 6. ... In view of the variance of the results of the test shots, it was impracticable to identify the relevant carbine on the basis of the striae left on the obturators ... in particular, on account of the elasticity and low thermo-resistance of the material used in the obturators ...” 23. On 15 November 2006 another ballistics report was requested from the Forensic Science Institute of the Federal Security Service (“the Institute”). The Institute was likewise provided with thirteen carbines and the objects extracted from the victim’s body. 24. On 26 February 2007 the expert from the Institute issued a report stating that it was not practicable to determine which of the examined carbines had been used to shoot the cartridge. The forensic expert explained that she had been provided with Volna cartridges for the purpose of her research and for test shots, whereas the elements extracted from the victim’s body were parts of a grenade. The forensic expert specified that Volna cartridges and tear-gas grenades had “different geometric parameters and are made of materials with different characteristics”. 25. On 26 February 2007 the investigating authority suspended the investigation. 26. On 30 August 2007 the applicant’s other son, Mr Rafik Nagmetov, brought court proceedings challenging the alleged inaction of the investigating authority. In a judgment of 8 October 2007 the Sovetskiy District Court of Makhachkala dismissed the complaint. The court held as follows: “Over seventy people were interviewed in the course of the investigation. The necessary (medical, ballistics, criminological) examinations were carried out ... All carbines which had been used by the officers were seized ... All relevant officers were identified ... The logbooks concerning distribution of weapons and ammunition were examined ... On three occasions three different expert institutions were asked to submit ballistics reports. The requests were not complied with on account of the absence of the necessary equipment ... Attempts were made to identify the relevant rifle in other expert institutions ... Those were not equipped for this kind of forensic examination ... In consequence, the Federal Office of Forensic Examination was not able to identify the weapon ... Another request is pending before the Forensic Science Institute of the Federal Security Service ... Thus, the investigating authority has carried out all the investigative measures that were possible in the absence of an identified suspect.” 27. On 14 January 2008 the Supreme Court of the Republic of Dagestan upheld the judgment. 28. The applicant’s son, Mr Rafik Nagmetov, also sought judicial review of the suspension decision of 26 February 2007. On 25 July 2008 the District Court held that the suspension of the investigation was justified. However, on 8 September 2008 the appeal court quashed the judgment and ordered a re-examination of the complaint. In a judgment of 6 October 2008 the District Court granted the complaint, considering that by failing to submit appropriate comparative material to the forensic expert, the investigating authority failed to take “exhaustive measures aimed at identifying the perpetrator”. 29. On an unspecified date, the applicant became aware that the evidence extracted from the body of his son had been lost. 30. In November 2009 the applicant requested that the authorities commission an additional ballistics report and complained about the loss of the evidence. 31. On 16 December 2009 the investigation was resumed. It appears that the investigating authority took some measures to clarify what had happened to the evidence. In particular, armourers from the special mobile unit were interviewed. The investigator also made an enquiry with the Institute referring to his difficulties in interpreting the report of 26 February 2007. It remains unclear what reply was received to this enquiry. 32. According to the Government, the enquiry about the loss of evidence yielded no specific results, in particular on account of the death of the investigator in the case and the redeployment of the investigation unit. 33. On 16 January 2010 the investigator again suspended the investigation. 34. On 21 February 2011 the acting prosecutor of the Republic of Dagestan determined that this decision was unlawful and ordered a resumption of the investigation. The decision reads as follows: “Having examined the file, I conclude that the investigation did not exhaust the measures aimed at establishing the circumstances of the crime, at collecting the evidence and identifying the rifle used to cause the victim’s death ... In particular, the request for a ballistics report to the Institute was submitted with Volna cartridges instead of the type of cartridges used for causing the victim’s death. The different geometric parameters of these cartridges prevented the experts from identifying the carbine used against the victim ... Following the resumption of the investigation in December 2009 the investigator merely made an enquiry instead of actually submitting grenades for comparative research ... It does not follow from the expert report of 26 February 2007 that it would have been impossible to identify the rifle, provided that cartridges of the relevant type were provided. The evidence extracted from the victim’s body was examined for the purposes of the above expert report. Thus, the current unavailability of this evidence is not an obstacle to seeking a new ballistics report from the same institution.” 35. Following the resumption of the investigation the investigator made enquiries with the Institute about the possibility of carrying out a ballistics examination in the absence of the evidence extracted from the victim’s body. While it remains unclear what reply was received from the Institute, it does not appear that any new ballistics examination was carried out. 36. On 17 April 2011 the investigating authority issued a decision suspending the investigation. This decision reads as follows: “It follows from the evidence in the case file that on 25 April 2006 inhabitants of nearby villages and other people blocked the road with stones and logs ... In reply to lawful orders from the police requiring them to disperse, unidentified people threw stones at the police, causing various physical injuries to eleven officers. The police officers used firearms to retaliate... Officers of the special mobile unit fired shots with their pump-action shotguns towards the crowd, using 23 mm cartridges, and a tear-gas grenade. In so doing they violated a directive dated 5 November 1996 ... and acted in excess of their powers. As a result, [the applicant’s son] and others sustained shotgun wounds ... causing [him] to die on the spot. ... It is impossible to commission another ballistics report in the absence of the cartridge. It has not been possible to identify the person who shot [the applicant’s son].” 37. The applicant did not challenge this decision. | 1 |
test | 001-158885 | ENG | MNE | CHAMBER | 2,015 | CASE OF SINIŠTAJ AND OTHERS v. MONTENEGRO | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković | 6. The applicants were born in 1959, 1964, 1968, 1946, 1980, 1948, and 1958 respectively. The first, second, fourth and fifth applicants live in Podgorica (Montenegro), the third applicant lives in Windsor (Canada), the sixth applicant lives in Farmington Hills (USA) and the seventh applicant lives in Troy (USA). 7. The facts of the cases as submitted by the parties may be summarised as follows. 8. In the early morning hours of 9 September 2006 a special anti-terrorist unit arrested seventeen persons, including the applicants, on suspicion of associating for the purpose of anti-constitutional activities (udruživanje radi protivustavne djelatnosti), preparing actions against the constitutional order and security of Montenegro (pripremanje djela protiv ustavnog uređenja i bezbjednosti Crne Gore) and illegal possession of weapons and explosives (nedozovoljeno držanje oružja i eksplozivnih materija). 9. The applicants maintain that as of the moment of their arrest and during the next few days, during police detention as well as when being taken to the investigating judge, they were ill-treated with the aim of extorting statements. In particular, they were beaten, deprived of food, verbally abused, including on the basis of their ethnic origin, and threatened by police officers. 10. On 11 and 12 September 2006, when interrogated by the investigating judge of the High Court, the applicants made statements to that effect. The investigating judge included these statements in the interrogation minutes, as well as the following: (a) the third applicant had a bandage on his head beneath which there was a visible cut (razderotina), as well as a haematoma (krvni podliv) on the upper part of his left cheekbone (jagodica); (b) the fourth applicant admitted that he did not have any injuries; (c) the fifth applicant had a haematoma on both shoulders, in the area above both elbows, a scratch on the outside part of his left ankle (skočni zglob), and a haematoma on the left ankle as well as on the outside part of the left thigh, the dimensions of which were 10x1.5 cm; the fifth applicant also maintained that he had a pain in his right ear; and (d) the seventh applicant had scratches on his left elbow and left knee, and a haematoma on the left part of his back above the hip, and complained that his ribs hurt and that he could barely move and breathe. 11. On 12 September 2006 a prison doctor examined the third and sixth applicants. He noted in a medical report that the third applicant had a 5 cm long scratch on top of his head, a dark blue haematoma on the left cheekbone measuring 4x0.3 cm, a dark blue haematoma stretching from his left nipple to his armpit measuring 25x3 cm and a large hematoma above the left elbow. The doctor noted that there were no visible injuries on the sixth applicant’s body. 12. On 14 September 2006 the first, second, fourth, fifth and seventh applicants filed a criminal complaint (podnijeli krivičnu prijavu) with the investigating judge against unknown police officers for extorting their statements (iznuđivanje iskaza), torture and ill-treatment in the period between 9 and 11 September 2006. 13. Between 27 and 29 September 2006 all the applicants save for the third one signed written statements to their lawyers describing the ill-treatment they had been subjected to. 14. On 13 October 2006 the above criminal complaint was amended so as to include the sixth applicant’s complaint to the same effect. The applicants also expressed their readiness to identify the officers who had ill-treated them. In addition, the first and second applicants complained against police officers who had taken them to the investigating judge on 11 September and 15 September 2006 for ill-treating, beating and insulting the two of them on those occasions. 15. It would appear that on 28 October 2006 the third applicant lodged a criminal complaint with the investigating judge against D.R. and several other unidentified police officers. No copy of this complaint has been provided. 16. On 17 November 2006 the Internal Control Division of the Police Directorate issued a report concerning the legality of police actions during the arrest and pre-trial proceedings. According to the report, a special internal control team was formed, which identified all the police officers involved in the action. A total of 136 interviews were conducted, both with the police officers and with family members of some of the arrested persons, apparently including the father of the first applicant as well as the owner of the house in which the seventh applicant had been arrested. None of the two latter mentioned any force being used against the first and seventh applicants. The police officers involved denied all unlawful actions. The Special Prosecutor for Prevention of Organised Crime stated that none of the arrested persons had been tortured to her knowledge. The investigating judge stated that they had complained about torture and that their statements to that effect had been noted in the interrogation minutes. Medical reports issued in prison stated that the first, second and sixth applicants had no visible injuries, the fifth applicant had “several scratches and suffusion” and the seventh applicant “redness the size of 1 euro” on his left shoulder. The report suggested that the injuries observed in respect of two other detainees arrested on the same occasion had been inflicted when these persons had confronted the police officers during the arrest, on which a special official record had been made. On the basis of such findings the Internal Control Division could not confirm that there were any grounds for establishing the involved officers’ responsibility. However, it was decided that all the relevant documents should be submitted to the State Prosecutor for further consideration. 17. On 15 June 2007, during the main hearing (glavni pretres), the fourth applicant stated that he had been beaten at the police station on his head and body, and his ribs had been broken. 18. On 30 October 2007 the first applicant submitted to the State Prosecutor (Osnovni državni tužilac) the name of M.L., a police officer who had been on the same shift as the officer who had allegedly ill-treated him on 9 September 2006 and who therefore presumably knew the name of that officer. 19. On 14 January 2008 the first and second applicants urged the State Prosecution Department (Osnovno državno tužilaštvo) in Podgorica to act upon their criminal complaint. The first applicant also submitted the number of the police badge of one of the officers who allegedly had boasted in front of another detainee of having personally beaten the first applicant. 20. On 30 May 2008 the third applicant submitted to the Supreme State Prosecutor the name of one of the officers who had been present during his questioning in the police station. At the same time he urged the Prosecutor to deal with his criminal complaint, to identify all the officers who had been involved in his arrest as well as to establish the treatment meted out to him during police detention. 21. On 16 June 2008 the second applicant urged the State Prosecution Department to deal with his complaints. He also submitted the names of some of the police and prison officers who had allegedly ill-treated the applicants on 9, 11 and 12 September 2006. He reiterated that there had been other officers and special unit members who had ill-treated them, who were still unidentified. 22. On 25 September 2008 a prison doctor examined the seventh applicant and noted in a medical report that he had reported pain in his spine going back ten years, which pain had become more acute over the last 12 months, that he was urinating more often, his blood pressure was 110/70, he could not walk on his toes, and that his lungs were fine. A part of the medical report was illegible due to bad handwriting. 23. The fourth applicant submitted to the Court a medical report issued by a private hospital in Podgorica on 9 June 2010. During this medical examination the fourth applicant stated, inter alia, that he had been beaten by the police in 2006, but that he had not consulted a doctor about that. The medical report stated, inter alia, that he had an old double fracture of the fourth rib, as well as an old fracture of the right clavicle (klavikula). The doctor had diagnosed high blood pressure and prescribed treatment for him. 24. On 10 November 2010 the fifth applicant was examined in a private ambulance, and the medical report issued on that occasion stated that he had a chronic post-traumatic stress disorder. 25. It would appear that none of the above criminal complaints or their further supplements has been processed by the authorities to date. 26. The applicants did not lodge a compensation claim with regard to the alleged ill-treatment. 27. On 5 August 2008 the High Court, in a chamber composed of three judges, found the first, second, third, sixth and seventh applicants guilty of associating for the purposes of anti-constitutional activities and preparing actions against the constitutional order and security of Montenegro. In particular, it was established that in the period between mid-2004 and 9 September 2006 the first and second applicants, with two other co-accused, had met with some members of the so-called Kosovo Liberation Army (“KLA”) in the wider area of Podgorica, Kosovo, Albania and the USA, and created an association the aim of which was to undermine the constitutional order and security of Montenegro and create within Montenegro a territory with special status, inhabited by persons of Albanian ethnicity, contrary to the Montenegrin constitutional order. Subsequently, the third, sixth and seventh applicants had become members of this organisation. The fourth and fifth applicants were found guilty of illegal possession of weapons and explosives. 28. The first applicant was sentenced to six years’ imprisonment, the second applicant to five years, the third, sixth and seventh applicants to three years each, the fourth applicant to three months and the fifth applicant to six months. By virtue of the same judgment a large variety of weapons, ammunition, and various other objects, such as military clothes, caps, gloves, binoculars, and flags with the KLA logo, were confiscated from the first and second applicants, as well as a diary belonging to the first applicant. A certain number of weapons and some explosives were confiscated from the fourth and fifth applicants. All the applicants, save for the third one, were ordered to pay court fees (po osnovu paušala). 29. The judgment was based on the following evidence: the statement made by the first applicant to the police, his diary and its translation done by the first applicant at the police station, written confirmation of the search of the first and second applicants’ flats and other premises, minutes of the searches, an official report on the weapons found, an official receipt on objects seized from the first and second applicants and relevant photo-documentation, terrain search, including in caves, weapons, ammunition and explosives found there and relevant photo-documentation, minutes of the searches of some of the other co-accuseds’ flats and other premises, statements of some of the other co-accused, evidence obtained through measures of secret surveillance, including transcripts of a number of telephone calls, reports on border crossings, the statements of three police officers who had conducted the searches, a statement of the first applicant’s police-appointed lawyer who was present during the first applicant’s interrogation at the police station, the opinion of expert witnesses and a search warrant issued by the High Court investigating judge on 8 September 2009. 30. The High Court did not take into account other evidence, such as, inter alia: the statements given by the second, third, fourth and fifth applicants at the police station, as these applicants had not been properly advised that they were entitled to use their own language and to have the assistance of an interpreter; and the minutes of the searches of several other co-accuseds’ flats, as the witnesses who had attended the searches were related to those whose flats had been searched (wife, son, sister-in-law). 31. The High Court considered that the first applicant’s rights had not been breached in the pre-trial proceedings (u pretkrivičnom postupku) and that the search of his flat and other premises had been conducted in accordance with the relevant provisions of the Criminal Procedure Code. In particular, the search warrant had been issued by the investigating judge on 8 September 2006 at 1.40 p.m., and the search had been conducted on 9 September between 6 and 8 a.m. While the search had not been attended by two witnesses, this was allowed by a relevant provision of the Criminal Procedure Code, which provided for a search without witnesses if it was impossible to secure the presence of any at once and there was a danger that the relevant action would be postponed (postoji opasnost od odlaganja). The reasons why the search had been conducted without witnesses had to be noted in the search minutes (moraju se naznačiti u zapisniku). One of the police officers who had conducted the search testified that it had been impossible to find two witnesses at the time as the search had been conducted early in the morning. According to him, this was not mentioned in the search minutes as the minutes had been made on the spot (zapisnik o pretresanju sačinjen na licu mjesta i zbog toga nijesu navedeni razlozi za pretresanje bez prisustva svjedoka). However, the search had been attended by the first applicant himself, who had duly signed the minutes and had no objections to them. 32. The High Court further established that the first applicant had been questioned at the police station on 9 September 2009 at 5 p.m. in the presence of a police-appointed lawyer with whom he had consulted before making a statement. The lawyer testified that the first applicant had been questioned in accordance with the law and that he had not noticed any injuries on him. The first applicant had confirmed during the questioning that he had been writing a diary, and that he could translate it as it was written in Albanian. The lawyer was present during the translation of the diary as well. 33. The sixth and seventh applicants were convicted on the basis of the first applicant’s statement made at the police station and the contents of his diary, the two being compatible. In particular, it was established, on the basis of these two pieces of evidence, that the seventh applicant had arrived from the USA in Albania on 30 March 2006, that he had been informed about the plans of the association and had attended a subsequent meeting. In this way, the court concluded, the seventh applicant had manifested his membership of the association and participation in its preparatory work. It was further found, on the basis of the same evidence, that on 1 September 2006 the sixth and seventh applicants had been informed that the war in the relevant part of Montenegro should begin on 10 September 2006, in which way the sixth applicant had manifested his membership of the association, as well as by accepting an invitation to go to the next meeting taking place in Skadar (Shkodër, Albania). On 4 September 2006 several persons, including the sixth and seventh applicants, had met in Skadar and had agreed on how to carry out the planned acts. In particular, the seventh applicant had expressed his support, said he had been to Kosovo himself to explore the realisation of the plan (radi izviđanja mogućnosti realizacije plana), and wondered if their plans would affect Kosovo’s independence. The meeting was concluded by another co-accused’s statement that the Kosovo army would enter Montenegro “around Saturday, that is on 9 September 2006, and [that] they want[ed] to do their job”. The High Court concluded that the first applicant’s defence during the pre-trial proceedings was in logical connection with the contents of his diary. This evidence was found to be further supported by a report on their border crossings, which data entirely coincided with the dates and times of border crossings mentioned in the first applicant’s diary and his statement made at the police station. Lastly, both the statement and the diary were further supported by an official police report of 30 November 2006, which confirmed the existence of all the objects and places described in the diary. 34. Finally, the first-instance court did not accept that the criminal offences contained in the indictment had been committed in an organised manner as the indictment did not claim that the motive was profit or power, this being one of the mandatory conditions for a criminal offence to fall within the notion of organised crime. 35. All the applicants appealed against the High Court judgment. The first, second, fifth, sixth and seventh applicants’ appeals, contained in the case-file, included a complaint about the torture and ill-treatment, and a lack of an investigation in that respect. 36. On 18 June 2009 the High Court judgment was upheld by the Court of Appeals. In particular, it was held that there had been no procedural violations in the first-instance proceedings and that the first-instance judgment was based on legally valid evidence, including the statement made by the first applicant at the police station, the minutes of the search conducted in his flat and other premises, as well as the evidence obtained by that search, including his diary. 37. The first applicant was considered to have been interrogated in accordance with all the procedural guarantees, as confirmed by his police- appointed lawyer, who had not noticed any injuries on him. The same lawyer had also been present when the first applicant had translated the diary, and had signed the interrogation minutes afterwards. 38. The search of the first applicant’s flat was held to have been conducted in accordance with the law and, therefore, all the evidence obtained thereby was legally valid, including the diary. In particular, the investigating judge had issued the search warrant the day before the search. The search had not been witnessed by two adults as it was impossible to find any witnesses in the early morning hours. No statement to this effect was included in the minutes as they had been drafted on the spot. This conclusion was based on the testimony of one of the officers who had conducted the search. As regards the diary, it contained a clear and convincing description of the criminal acts undertaken. The contents of the diary were further supported by the first applicant’s defence in the pre-trial proceedings, and were further compatible with the border crossing reports, the evidence obtained through measures of secret surveillance, transcripts of telephone conversations, and the weapons found on the terrain (in caves). 39. The first-instance court had established all the facts, in particular on the basis of the statement the first applicant had made in the pre-trial proceedings and his diary. The first applicant had admittedly changed his statement during the main hearing claiming, in substance, that what he had said during the pre-trial procedure had been extorted by torture. However, this was rebutted by a statement of his police-appointed lawyer, who had been present at the time when the statement had been made. The validity of this evidence was not called into question (nije dovedena u pitanje) by any other evidence, but was actually further supported thereby. Membership of an association could be manifested in various ways, and the sixth and seventh applicants, in particular, had manifested it by taking part in the meetings where the activities for achieving the association’s goal were discussed. 40. The Court of Appeals agreed that the criminal acts of which the accused were convicted had not been committed in an organised manner as the indictment did not allege that their motive was profit or power. 41. This decision was served on the applicants on 30 July 2009 at the earliest. 42. On 25 December 2009 the Supreme Court ruled on the first, second, third and fourth applicants’ appeal on points of law (zahtjev za ispitivanje zakonitosti pravosnažne presude). They challenged, inter alia, the conclusion that there had been no time to find two adults to witness the search of the first applicant’s flat and the composition of the first-instance court. The Supreme Court, in substance, endorsed the reasoning of the High Court and the Court of Appeals. In particular, the composition of the first-instance court was in accordance with the law, as Article 510 of the Criminal Procedure Code explicitly provided that a three-judge bench would try criminal acts of organised crime, and the trial of all the accused was based on an indictment of the Supreme State Prosecutor – Section for Suppression of Organised Crime, Corruption, Terrorism and War Crimes. The fifth, sixth and seventh applicants did not lodge an appeal on points of law. 43. Between 26 March and 24 May 2010 the first, second, third and fourth applicants lodged constitutional appeals with the Constitutional Court. The third and fourth applicants complained, inter alia, about torture, inhuman and degrading treatment. On 23 July 2014 the Constitutional Court dismissed the constitutional appeal considering, in particular, that the complaint about torture, inhuman and degrading treatment was unsubstantiated given that the applicants had failed to submit any evidence in that regard. The fifth, sixth and the seventh applicants would not appear to have lodged a constitutional appeal. 44. The sixth applicant submitted two medical reports, issued by a prison doctor on 10 December 2007 and 16 September 2008, respectively. 45. The report issued in December 2007 is largely illegible. The legible part states that the sixth applicant complained about pain in his right shoulder and problems in moving it (otežane pokrete). There was a diagnosis of naevus sebaceus, i.e. a mole on a sebaceous gland. 46. The copy of the medical report issued on 16 September 2008 is partly illegible. The legible parts state that the applicant had pain all over his body with frequent headaches and poor sleep. His blood pressure was 140/85, walking on toes and heels was nearly impossible, and it was recommended that an X-ray of the spine be done. Two medications were prescribed together “with the usual treatment he [was] taking”. He was diagnosed with “HTA, lumbago, and suspected kind of (illegible) discus”. 47. The Government submitted the entire medical file of the sixth applicant. While part of the medical reports is illegible, from the legible part transpires the following. 48. On 12 September 2006, when he was remanded in custody, the sixth applicant was examined by a prison doctor. On that occasion the sixth applicant claimed that he had been beaten and that he had high cholesterol. The doctor noted that there were no visible injuries on the sixth applicant’s body, and that he already had the treatment prescribed for high cholesterol. 49. Between 2 October 2006 and 24 December 2008 the applicant was examined 35 times in total: twice in 2006, 15 times in 2007 and 18 times in 2008. 50. During the examinations in 2006 the applicant complained about pain in his right shoulder and in general in his arms and joints. He was diagnosed with chronic rheumatism and sinusitis, and the necessary treatment was prescribed. Both times his blood pressure was optimal, and his heart, lungs and other organs were free of any illness. 51. In 2007 and 2008 the sixth applicant was examined by a number of specialists including a dermatologist, a psychiatrist, a physiatrist, and a specialist in internal medicine, who all prescribed the necessary treatments. He also had a number of tests done, such as laboratory blood analysis, five ultra-sounds of the kidneys and abdomen, ECG, and an X-ray of the upper part of the spine and three X-rays of the right shoulder, and his blood pressure was checked on various occasions. 52. The examinations showed that the sixth applicant had slightly increased triglycerides and high cholesterol and that he had been under treatment for high blood pressure and high cholesterol for five years already; he had an ongoing ossification in his right shoulder, which was stated to be usual for his age, as well as in his neck; he also had a cyst in the right kidney, and the mole on the sebaceous gland for which the treatment was surgery but not urgently required. The medical analysis of his liver, spleen, and left kidney were fine. 53. Between 11 and 15 September 2006, during the interrogation by the investigating judge, and in the presence of lawyers of their own choice, the first, second and fifth applicants confirmed that their mother tongue was Albanian, but that they spoke Serbian well and that they did not need an interpreter. It is also clear from the case file that the first applicant is a school teacher of the Serbian language in Montenegro. The other applicants were interrogated with the assistance of an interpreter. The first and second applicants confirmed that they had officially-appointed lawyers in the police station. While the first applicant had consulted his police-appointed lawyer before having made a statement, the second applicant would appear to have spoken with his after having made a statement. After having consulted the lawyers of their own choice at the interrogation before the investigating judge the first, second, third and seventh applicants said they would not answer any questions or present their defence. 54. On 14 May 2008 the State Prosecutor indicted five police officers for torturing and ill-treating the father of the first and second applicants on the occasion of their arrest. On 21 October 2010, after a remittal, the defendants were acquitted, which judgment was upheld by the High Court on 18 May 2011. On 14 February 2014 the Constitutional Court dismissed a constitutional appeal, which had been lodged against these decisions on 15 August 2011 by the first applicant on behalf of his father, who had passed away in the meantime. 55. In a statement made to his lawyer on 1 February 2008 the sixth applicant wrote that the medical report issued in 2007 contained a recommendation that he should have another dermatological check-up in two months, which check-up had not taken place, and that, contrary to what was in the report, he had not had any physiotherapy. He also maintained that he could not communicate with the doctor as the doctor could not speak English or Albanian. The sixth applicant claimed that his health situation was far from regular and referred to the shoulder pain, high blood pressure, high cholesterol, permanent headache, sleeplessness, dizziness and total exhaustion. He stated that “numerous appeals” made by him personally, his lawyer and US Embassy personnel, seeking a competent medical examination, had remained unanswered. No details with regard to these appeals have been provided in the case file. There is also no evidence that this statement of the sixth applicant has ever been submitted to anyone except his lawyer. 56. The sixth applicant also submitted a letter addressed to the President of the High Court, apparently written by a Consular Officer of the US Embassy in Montenegro on 1 February 2008. The letter stated that the sixth applicant, during regular visits of a representative of the US Embassy, consistently complained about his medical problems, in particular about the growth of a mole on his face and a shoulder pain. It further transpires from the letter that the sixth applicant had been visited by a dermatologist on 10 December 2007, but that it was impossible to take a sample of the mole as no appropriate equipment was available in the prison. The letter went on to say that the sixth applicant had been prescribed treatment for the shoulder pain, but that he had stopped taking it as it made him nauseous. The submitted copy of the letter bears no logo of the US Embassy, no signature of an authorised person, and no stamp indicating that it has ever been submitted to the High Court. | 1 |
test | 001-167735 | ENG | TUR | ADMISSIBILITY | 2,016 | KIZMAZ AND OTHERS v. TURKEY | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković | 1. The applicants, whose details are set out in the appendix, are Turkish nationals. They are represented before the Court by Mr Mahmut Birlik, a lawyer practising in Şanlıurfa. 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. In 2000, the Ministry of Energy and Natural Resources (“the Ministry”) expropriated certain plots of land belonging to the applicants for construction of a dam in Birecik. The applicants initiated compensation proceedings for additional compensation plus interest at the statutory rate. The payments were made five to six years after the date of expropriation. The details of the applications appear in the attached table. 4. A description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013). | 0 |
test | 001-160740 | ENG | UKR | ADMISSIBILITY | 2,016 | NAGORSKIY v. UKRAINE | 4 | Inadmissible | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev | 1. The applicant, Mr Aleksandr Iosifovich Nagorskiy, is a Ukrainian national who was born in 1967. He is represented before the Court by Mr A. Fedosov, a lawyer practising in Strasbourg. 2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice of Ukraine. 3. On 3 August 2010 the applicant was arrested on suspicion of a number of criminal offences. 4. On 6 August 2010 the Obolosnky District Court of Kyiv remanded him in custody: this detention was further extended on a number of occasions. 5. On 16 July 2013 the Obolonsky District Court of Kyiv found the applicant guilty as charged and sentenced him to ten years’ imprisonment. In the operative part of its judgment the court also ruled that the applicant’s pre-trial detention should be continued as a preventive measure pending the entry of that judgment into force. It further noted that the judgment could be challenged on appeal within fifteen days of the date of its pronouncement. 6. On 12 May 2014 the above judgement was quashed on appeal, and the case was remitted to the investigative authorities for additional investigation. 7. No information was submitted by the parties as to the further course of the proceedings. 8. On an unspecified date between July and October 2014 the applicant was granted an amnesty and released. 9. On 8 May 2014 the applicant was escorted from the Kyiv Pre-trial Detention Centre (“the SIZO”) to the Shevchenkivsky District Court, Kyiv, for a hearing regarding the lawfulness of his detention. The hearing lasted about fifteen minutes and was further adjourned until 12 May 2014. 10. After the closure of the hearing, the applicant, his co-accused and some others attending the hearing remained in the courtroom demanding that the judge rule that the applicant should be released immediately. One hour later, at about 4.30 p.m., officers of the “Gryfon” (police special unit ensuring legal order on the court premises) arrived in the courtroom, having been summoned by the judge. Twelve officers split up into two groups: the first group held the applicant stretched out and started beating him with handcuffs and truncheons; the second group formed a human chain so that others in the room would not be able to see what was going on in the defendant’s cage. As a result, the applicant sustained serious bodily injuries, including several wounds to his head. Somebody called an ambulance but a chief officer prevented the applicant from being taken to hospital and he was transferred back to the SIZO. No medical assistance was provided in the SIZO until 9 p.m., when following pressure from the media the applicant was transferred to the Emergency Care Hospital (“the Hospital”) and received medical treatment. 11. Dissatisfied with the adjournment of the hearing, the applicant, his co-accused and several others present demanded the applicant’s immediate release and refused to comply with the escorting officers’ request to leave the courtroom. The presiding judge called the police special unit to ensure order on the premises. The applicant continued to resist police officers and was therefore forcefully escorted out of the courtroom. As a result, he sustained bodily injuries. Upon return to the SIZO, the applicant was examined at the medical unit and was then transferred to the Hospital, where he was provided with the requisite medical assistance. 12. On 8 May 2014 Mrs K. notified the police of the applicant’s ill-treatment in the courtroom by unidentified police officers. On the same day, the relevant information was entered in the “Integrated Register of pre-trial investigations” and criminal proceedings were commenced on suspicion of excess of powers by “Gryfon” officers. Mrs K. was questioned and the courtroom was examined by the police. According to the police report, dark red drops which looked like blood were found on the floor next to the hearing room and in the defendant’s cage. According to Mrs K., she arrived to the courtroom once she became aware that a “Gryfon” officer had hit the applicant on the head with a rubber truncheon. Upon arrival, she saw that there was blood all over the courtroom. 13. On 22 May 2014 the Kyiv Prosecutor’s Office took over the proceedings. 14. On 23 May 2014 Mrs B. was questioned as a witness. She stated that about ten or fifteen “Gryfon” officers, equipped with handcuffs and truncheons, had entered the courtroom after the hearing was over. They had formed a human chain and separated the applicant from the other people in the room. A “Gryfon” officer then went into the defendant’s metal cage and started pulling the applicant by the arm. A few seconds later there was blood on the applicant’s face. Mrs B. did not see who injured the applicant or how it happened, but noted that the latter did not resist the officers. At the same time, she saw “Gryfon” officers twisting the applicant’s hands forcefully while trying to handcuff him. 15. On 17 June 2014 Mrs N. and Mr G. were questioned as witnesses. Mrs N. stated that she was not present at the hearing but was told by Mrs B. that the conflict arose because of the applicant’s refusal to leave the courtroom. Mr G., who had been present at the hearing when “Gryfon” arrived, stated that the applicant was not kicked or punched. Instead, he saw some officers, standing outside the metal cage, twisting the applicant’s arms. As a result, the applicant hit his head on the metal cage and fell down. Then up to eight officers entered the cage and dragged the applicant out of the courtroom. According to Mr G., the officers did not identify themselves when they arrived and did not ask anybody to leave the premises. 16. On 24 June 2014 the applicant was questioned as a victim. According to him, “Gryfon” officers appeared in the courtroom wearing bulletproof vests and neck and face coverings which rendered their identification impossible. One of them, accompanied by an officer from the escorting unit, approached the applicant from the opposite side of the cage, pulled the applicant’s hands forward and twisted his arms. “Gryfon” officers then entered the cage and started beating him in the face with truncheons and dragging him in different directions. As a result, the applicant hit his face on the cage bars. He was also kicked in the head by the “Gryfon” chief officer. Once the applicant started bleeding, he was stretched out on the floor, handcuffed and dragged out of the courtroom. On the way down, on the third floor, his head was intentionally banged against a metal case and he lost consciousness. According to the applicant, it was the Federal Security Service of the Russian Federation that had ordered “Gryfon” to kill him. 17. On the same day, a forensic medical examination of the applicant was ordered. 18. On 14 October 2014 a forensic medical examination report was issued. On the basis of the documents provided by the investigator, the expert stated that the applicant had sustained a contused head wound and numerous abrasions on the face and the left hand. The expert opined that those injuries had been caused by blunt objects; as to their date, it could not be excluded that they had been inflicted on 8 May 2014. The injuries were classified as minor. The expert further found no clinical evidence that the applicant had sustained concussion. He noted in this respect that no pathology was evident from the description of the applicant’s neurological state during his first and subsequent medical examinations. Likewise, there was no description of any radial nerve disorder in the file. The expert observed that some changes revealed during the head and spine X-ray examination indicated the progress of the applicant’s chronic diseases, either of which, taken separately or together with others, could present neurological signs similar to those which would appear with concussion. 19. On 28 November 2014 the Kyiv Prosecutor’s Office terminated the criminal proceedings. The relevant resolution referred to the results of the above forensic medical examination and gave details of the testimonies of the applicant and those of Mr G., Mrs B. and “Gryfon” officers, questioned as witnesses. According to the “Gryfon” officers, they had had no means of restraint during the operation and had used no force on the applicant. They stated that the applicant’s injuries could have been self-inflicted when he resisted being escorted from the court. The resolution further referred to the provisions of the Criminal Code, according to which abuse of powers was criminally punishable only if the damage caused was in money terms at least 100 times greater than the citizen’s tax-exempt minimum income. It noted that the case file contained no evidence that the applicant had sustained such damage. The prosecutor finally concluded that no proof of abuse of powers by “Gryfon” officers was obtained during the investigation. It was noted that the resolution could be challenged within ten days of the date of its receipt. The resolution has not been appealed against by Mrs K. or the applicant. 20. On unspecified dates Mrs B. lodged a number of complaints with different State authorities, including MPs, about the events of 8 May 2014. 21. On 26 June 2014 the Kyiv Main Police Department, having completed their internal inquiry in respect of some of Mrs B.’s complaints, found no misconduct by “Gryfon” officers. According to the internal inquiry report, on 8 May 2014 the police special unit arrived at the courtroom as Mrs B. and others attending the hearing were refusing to leave; they impeded the applicant’s being escorted out of the court premises. The officers identified themselves and demanded that the public cease offering resistance and leave the premises. As they did not comply, some of the “Gryfon” officers and the escorting officers formed a human chain and pushed the members of the public back, allowing other officers to take the applicant out of the courtroom. The applicant behaved inappropriately, uttering obscenities and hanging on to the metal bars of the cage. As a result, he injured his arm. According to the report, no force or special means of restraint was used. 22. On 8 March 2010 the applicant was admitted to the SIZO. On admission he underwent a medical examination, including an X-ray, and his medical file was studied. He was diagnosed with a number of chronic conditions, for which he received outpatient treatment. The applicant was also put on the list for regular medical check-ups. 23. According to the Government, during his stay in the SIZO the applicant presented himself to the medical unit on a number of occasions and was examined by the SIZO medical staff and, where necessary, by specialists from State health-care institutions. 24. On an unspecified date the applicant consulted the SIZO dentist and was diagnosed with chronic periodontitis and edentulous upper arch. Symptomatic in-patient treatment and consultation of a general practitioner were recommended. 25. On 22 June 2013 the applicant was examined by a maxillofacial surgeon and cardiologist from the Main Military Hospital. He was diagnosed with a number of chronic conditions, had some of his teeth extracted, and was prescribed appropriate treatment. He was also advised to undergo an electrocardiogram. 26. On 6 February 2014 the electrocardiogram was done; it revealed no particular problems. 27. On 7 May 2014 the applicant was examined by the SIZO general practitioner and expressed no particular complaints as to his state of health. No serious pathology requiring treatment was revealed. It was recommended that he undergo a preventive medical examination and have some tests. 28. On the same day blood and urine tests were carried out: they revealed no pathology. A repeated blood sugar test was recommended. 29. On 8 May 2014, after his return from the court hearing, the applicant was examined at the SIZO medical unit and was diagnosed with bruises on his forearms and head, periorbital haematomas of both eyes, and two stab wounds to the forehead. The applicant was then referred to the Hospital. 30. At the Hospital, the applicant was examined by a general practitioner and a neurosurgeon. He underwent an electrocardiogram and head X-ray and was diagnosed with a contused head wound, numerous bruises, abrasions on the head and left hand, and a number of other conditions he had previously been diagnosed with. Having received first aid for the injuries he had sustained, the applicant was escorted back to his cell as, according to the Hospital physician, his state of health did not require in-patient treatment at the Hospital or the SIZO medical unit. 31. On 12 May 2014 the stitches on the applicant’s head were removed with no complications. 32. On 21 May 2014 the applicant was examined by a neuropathologist of the SIZO medical unit and was diagnosed with cephalic syndrome resulting from concussion and post-traumatic radial nerve neuropathy. Outpatient treatment was prescribed. 33. On 19 June 2014 the applicant was re-examined by the neuropathologist. The previous diagnosis was confirmed and it was recommended, inter alia, that he undergo a brain and spine MRI. 34. On 20 June 2014 the applicant was examined by an endocrinologist and underwent a fasting blood sugar test. No particular problems were revealed. 35. On 25 June 2014 the SIZO authorities asked the Hospital for an MRI for the applicant and for the SIZO to be informed of the date of the examination. 36. On 4 July 2014 the applicant underwent MRI scans of the brain and spine. 37. According to a Prisons Department certificate of 24 June 2014, the applicant’s state of health was satisfactory. He was under constant supervision by the SIZO medical staff and did not require in-patient treatment in the SIZO medical unit or elsewhere. 38. The Code of Criminal Procedure (in force since 19 November 2012): Article 214 Opening of pre-trial investigation “1. An investigator or a prosecutor shall immediately, but not later than twenty-four hours after submission of an allegation or notification that a criminal offence has been committed, or having discovered themselves from any source indications that a criminal offence has been committed, be required to enter such information in the Integrated Register of pre-trial investigations and shall open an investigation ... 2. The pre-trial investigation shall begin as soon as data have been entered in the Integrated Register of pre-trial investigations ...” Article 284 Termination of criminal proceedings “... 3. An investigator or a prosecutor may issue a decision to terminate criminal proceedings, which is amenable to appeal in accordance with the procedure established by this Code. ... 5. A copy of the investigator’s decision to terminate the criminal proceedings shall be sent to the complainant, the victim, and the prosecutor. The prosecutor has the right to quash the decision on the grounds of its unlawfulness or lack of substantiation within twenty days of receipt of the copy of the decision. The prosecutor may also quash the investigator’s decision to terminate the criminal proceedings following a complaint lodged by a complainant or a victim, if such a complaint has been lodged within ten days of receipt of a copy of the decision by the complainant or the victim. A copy of the prosecutor’s decision to terminate the criminal proceedings shall be sent to the complainant, the victim, his/her representative, the suspect, and defence counsel. ... 8. The court’s decision to terminate the criminal proceedings may be challenged on appeal.” Article 303 Decisions, acts or inaction of the investigator or the prosecutor, which are amenable to appeal during the pre-trial investigation, and the right to appeal “1. During the pre-trial proceedings the following decisions, acts or failures to act of the investigator or the prosecutor are amenable to appeal: ... 3) the investigator’s decision to terminate the criminal proceedings - by the complainant, the victim, his or her representative or legal representative; 4) the prosecutor’s decision to terminate the criminal proceedings - by the complainant, the victim, his or her representative or legal representative, the suspect, his/her counsel or legal representative ...” Article 305 Legal consequences of lodging a complaint against a decision, act or failure to act on the part of the investigator or the prosecutor during the pre-trial investigation “1. The lodging of a complaint against decisions, acts or failures to act of the investigator or the prosecutor during the pre-trial investigation shall not stop the execution of the decision or the act of the investigator or the prosecutor. 2. The investigator or the prosecutor may set aside his or her own decisions referred to in paragraphs 1, 2, 5 and 6 of Article 303 of this Code, or terminate the act or failure to act complained of, which results in the termination of the proceedings concerning the complaint. The prosecutor can set aside his or her own decisions referred to in paragraph 3 of Article 303 of the Code and appealed against in accordance with the procedure provided for in paragraph 5 of Article 284 of this Code, which results in the termination of the proceedings concerning the complaint.” Article 306 Procedure for examination of complaints about decisions, acts or failures to act on the part of the investigator or the prosecutor during the pre-trial investigation “1. Complaints about decisions, acts or failures to act on the part of the investigator or the prosecutor shall be examined by an investigating judge of a local court ... 2. Complaints about decisions, acts or failures to act during the pre-trial investigation shall be examined within seventy-two hours of receipt of a complaint, except for complaints about the decision to terminate criminal proceedings, which shall be dealt with within five days of receipt of the complaint. 3. Examination of complaints about decisions, acts or failures to act during the pre-trial investigation shall be carried out with the mandatory participation of the person who lodged the complaint or his or her defence counsel or representative, and the investigator or prosecutor whose decisions, acts or failures to act are being challenged. The absence of the investigator or prosecutor shall not be an obstacle to examination of the complaint.” Article 307 Decision of the investigating judge following examination of a complaint about a decision, act or failure to act on the part of the investigator or the prosecutor during the pre-trial investigation “... 2. A ruling of the investigating judge following the examination of a complaint about a decision, act or failure to act during the pre-trial investigation may concern: 1) the quashing of the decision of the investigator or prosecutor; 2) obligation to terminate an act; 3) obligation to perform a certain act; 4) dismissal of the complaint. 3. The ruling of the investigating judge following the examination of a complaint about a decision, act or failure to act on the part of the investigator or the prosecutor is not amenable to appeal, unless it concerns a decision on the dismissal of a complaint about a decision to terminate criminal proceedings.” Article 309 Rulings by the investigating judge amenable to appeal during a pre-trial investigation “... 2. During a pre-trial investigation decisions of the investigating judge to dismiss a complaint against a decision to terminate criminal proceedings ... may be challenged by means of an appeal.” Article 310 Procedure for appealing against decisions by an investigating judge “1. The decisions of the investigating judge may be challenged in accordance with the appeal procedure.” | 0 |
test | 001-175666 | ENG | RUS | COMMITTEE | 2,017 | CASE OF YAKOVENKO v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Dmitry Dedov;Luis López Guerra | 4. The applicant was born in 1961. 5. On 10 October 2003 a deputy prosecutor in Tashkent, Uzbekistan, added the applicant’s name to the list of fugitives from justice and issued an arrest warrant on suspicion of human trafficking with the purpose of sexual exploitation. 6. On 26 February 2009 the applicant was arrested in Russia. 7. On 28 February 2009 the Pechorskiy District Court in the Pskov Region ordered the applicant’s detention pending extradition, referring to Articles 108 and 466 of the Code of Criminal Procedure but without setting a time-limit. 8. On 16 March 2009 the Russian Prosecutor General’s office received a request for the applicant’s extradition from his counterpart in Uzbekistan. 9. On 15 May 2009 the deputy Russian Prosecutor General ordered the applicant’s extradition to Uzbekistan. 10. The applicant challenged the extradition order before the Pskov Regional Court. On 26 June 2009 the Regional Court found that the extradition order was lawful. On 17 August 2009 the Supreme Court of the Russian Federation upheld the decision on appeal. 11. On 17 October 2009 the applicant was extradited to Uzbekistan. | 1 |
test | 001-161373 | ENG | MDA | CHAMBER | 2,016 | CASE OF CIORAP v. THE REPUBLIC OF MOLDOVA (No. 5) | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Ján Šikuta;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani | 6. The applicant was born in 1965 and lives in Chișinău. 7. The applicant was serving a sentence of eleven years’ imprisonment in Prison no. 13 in Chișinău. On 28 October 2006 he and five other detainees were in cell no. 20, reserved for the medical treatment of detainees with mental problems. Three of them, including the applicant, had a Category 2 disability. The applicant’s diagnosis was, inter alia, personality disorder. 8. At around 3 p.m. several men entered the cell to search for prohibited items. Some of the men wore dark masks and they were armed with rubber truncheons and metal shields. They ordered everyone out. According to the applicant, the masked men shouted at the detainees and insulted them, while hitting and pushing them. The Government dispute that any force was used or that there was any improper behaviour on the part of the men who had entered the cell. While in the corridor the detainees were ordered to stand with their faces to the wall. The search lasted for approximately half an hour. One prison officer recorded the events on video. 9. The detainees were then ordered back into the cell. According to the applicant, when he saw their possessions, including food brought to them by their relatives, medication and documents, scattered on the floor and in total disorder, he declared that he would return to the cell only after a prosecutor or a representative of the prison administration had made a report on the search and the disorder caused. He was then hit and thrown to the floor, kicked in the stomach, and the cell door was slammed with force while his foot was between the door and the doorpost, causing him great pain. His reading glasses fell to the ground and were smashed by one of the masked men. The Government submitted that no force had been used and that the cell had been left in good order. 10. After the search the applicant complained about his swollen foot and was taken by ambulance to a hospital in Chișinău at around 7 p.m. The doctor who examined him in that hospital diagnosed him with contusion of the soft tissues of the right ankle and a suspected fracture of the bone. His foot was then put in plaster. 11. On 31 October 2006 the applicant complained about ill-treatment to the Prosecutor General’s Office, the military prosecutor’s office and other State authorities. Four other detainees who had been held in the same cell made similar complaints. 12. On 28 November 2006 the applicant was examined by another doctor, who confirmed the diagnosis of a broken bone and found a haematoma on his right foot, corresponding to signs of violence and leading to long-lasting health problems (over twenty-one days). Further forensic examinations were carried out on 1 and 28 December 2006 and 3 May 2007. According to the applicant, these certificates confirmed that he had suffered an injury to his right foot. According to the Government, a further forensic examination carried out on 31 October 2007 contradicted the results of the previous ones, finding no conclusive evidence that the applicant had had a broken bone. The parties did not submit full copies of the last three reports mentioned above. 13. On 6 December 2006 a prosecutor from the Chișinău Military Prosecutor’s Office decided not to start a criminal investigation into the complaints made by the applicant and other detainees. 14. On 8 December 2006 a prosecutor from the Chișinău Prosecutor’s Office started a criminal investigation into the applicant’s allegations. 15. Between 28 November and 5 December 2007 several individuals, members of the “Pantera” special forces battalion who had taken part in the action of 28 October 2006, were charged with exceeding their powers by using excessive force against the applicant. 16. On 15 February 2008 a prosecutor from the Chișinău Prosecutor’s Office discontinued the criminal investigation. He found that on 28 October 2006 the applicant had disobeyed lawful orders of the prison staff during the search of his cell, acted provocatively, and refused to return to his cell. He had had to be taken there by force. Moreover, it could not be ruled out that he had caused injuries to himself in order to subsequently accuse the authorities of ill-treatment. The prosecutor noted that the applicant and four other detainees in cell no. 20 had confirmed, in their complaints and statements made to the investigator during the criminal investigation, that the masked men who had entered the cell on 28 October 2006 had caused great disorder, had insulted the detainees, and had hit them with rubber truncheons. 17. According to the statement of detainee S.B., on 28 October 2006 the detainees were taken out of cell no. 20 and ordered to stand facing the wall for approximately half an hour while their cell was being searched. They were then moved back to their cell, again by force. S.B. witnessed one of the masked officers slamming the cell door and crushing the applicant’s foot, threatening to break his hands if he continued to write complaints. Having watched the videotape of the search, S.B. submitted that the filming was selective, not showing the acts of violence in order to shield those who had carried them out from responsibility. At the end of the search the leader of the masked men did not identify himself and did not fill in any report about the incident. 18. Detainees A.G., V.Z. and B.I. made similar statements, each declaring that he had been personally hit and insulted and that the applicant’s foot had been shut in the cell door. The applicant’s statement was similar to those of the other detainees. He added that the video footage shown to him was only about six minutes long, while the entire event had lasted for approximately thirty minutes. Moreover, the various parts of the film were clearly not in chronological order. 19. One detainee, (V.S.), who had been taking his daily exercise during the search, confirmed seeing upon his return great disorder in the cell, with all the food and personal items broken up and thrown to the ground, and the detainees cleaning up the mess and complaining about being hit during the search. 20. Another witness, a member of the prison staff (I.V.), stated that he did not see any violence towards the detainees or any disorder being created in cell no. 20 during the search of 28 October 2006. Another member of the prison staff (P.P.), who was the head of the medical unit of Prison no. 13, stated that after the search on 28 October 2006 he saw disorder in cell no. 20, but did not see any food on the ground. The search lasted for approximately thirty minutes. He did not see the detainees re-enter their cell, but heard the conflict between the applicant and the masked men. He did not see any violence being used, but could admit that force had been used. Later on the applicant complained of pain in his foot and was taken to the emergency hospital, from which he returned with his foot in plaster. 21. According to witness A.P., who worked as a nurse in Prison no. 13, on 28 October 2006 she came to work at 4 p.m. and was called to cell no. 20, where the applicant was complaining of sharp pain in his foot. He was then taken to hospital by ambulance and returned with his foot in plaster. The cell was in disorder; the patients were agitated and were asking for urgent medical assistance for the applicant. During the initial examination A.P. found that the applicant’s foot was seriously swollen. He then told her that he had been hit by the officers during the search. 22. Witness E.B., a medical assistant in Prison no. 13, stated that she had not seen any of the events and had only heard the noise. She was later told by A.P. that after the search the applicant had asked for medical assistance to treat his foot. 23. According to witness P.C., a supervisor in Prison no. 13, on 28 October 2006 he was informed that someone was asking for medical assistance in cell no. 20, and sent A.P. there. When he himself entered the cell P.C. saw personal belongings and food scattered on the ground. The applicant then told him that the masked men had caused the disorder and had beaten them up, and that his foot hurt as a result of that beating. He also declared that during that day the applicant had not made any complaints about his state of health, but immediately after the search had complained of sharp pain in the foot. He was limping when he was taken to the ambulance. 24. According to witness M.M., a feldsher (paramedic) in Prison no. 13, on 28 October 2006 at 5 p.m he saw the applicant, who complained that he had been beaten up earlier, during the search. M.M. did not see any visible injury on the applicant’s body; the applicant could move his feet freely, but his right foot was swollen in the ankle area. The applicant limped when taken to the ambulance. 25. Three witnesses (A.V., O.H., and V.D.), all members of the prison staff, declared that they did not witness any violence against the detainees, or any disorder in cell no. 20. 26. (V.N.) stated that he had filmed “certain parts of the search” on a video recorder, using an 8 mm video cassette. He had not witnessed any disorder or violence towards the detainees. 27. Witnesses V.B. and I.I., who coordinated the actions of the various groups of prison staff and the Pantera special forces regiment (the masked men), declared that after the search their teams did not report having used force on anyone or having had any exceptional situation to deal with. Only the applicant had been uncooperative, but he was eventually persuaded to return to the cell without using force. 28. The prosecutor’s decision further analysed several reports in the file, including a report confirming the destruction of the applicant’s reading glasses. A video filmed by V.N. during the event, lasting for six minutes and thirty-six seconds and registered on a compact disk, showed the detainees leaving their cell voluntarily; the presence in the cell of masked men; the applicant’s request to be allowed to take his belongings with him and the refusal of that request; it showed various objects in the cell and the presence in it of detainee V.Z. The cell was in good order. The next scene showed the applicant refusing to comply with I.V.’s order to return to the cell. The next scene showed the applicant sitting on the ground and asking for a prosecutor to be called, affirming that he would not move until the prosecutor saw what had happened to the food and belongings in the cell and a report was made about the event. The last scene showed the cell door being closed. Someone could be heard hitting the door from the inside and the applicant’s voice shouting “I’m going to kill myself, I’m going to cut myself” and “where is the map with documents, they took my map with documents”. 29. The prosecutor found that the video recording did not prove that violence had been used, and that the sound of the cell door being struck, heard at the end of the recording, allowed the supposition that the injury to the applicant’s foot could have been self-inflicted. 30. On 10 March 2008 the deputy Prosecutor General quashed the decision of 15 February 2008 and ordered a more thorough investigation. 31. On 17 April 2008 a prosecutor discontinued the criminal investigation, essentially for the same reasons as those mentioned in the decision of 15 February 2008. 32. By a final decision of 12 August 2008 an investigating judge of the Buiucani District Court upheld the decision of 17 April 2008. The judge found that while the law allowed complaints about violations of fundamental rights and freedoms, the applicant’s complaint concerned the admissibility and evaluation of evidence obtained in criminal proceedings. However, the investigating judge did not have the competence to evaluate evidence in a criminal or civil trial. 33. The applicant lodged an extraordinary appeal (recurs în anulare) to the Supreme Court of Justice, and asked for the decision of 12 August 2008 to be quashed. 34. On 1 October 2009 the Supreme Court of Justice rejected his request, finding that the Buiucani District Court had adopted a lawful decision after analysing the evidence in the file. | 1 |
test | 001-181178 | ENG | MKD | CHAMBER | 2,018 | CASE OF SELAMI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione personae;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 5. The applicants alleged, before the domestic courts and before the Court, that on 26 August 2002 police detained Mr S. Selami and took him from Gostivar to Skopje where he was severely beaten. Mr S. Selami sustained serious injuries to his head including a brain haemorrhage and fell into a coma. The police brought him to Skopje Hospital, where he underwent brain surgery. He was in a coma for two weeks and was connected to a ventilator for assisted breathing. 6. By a letter of 28 August 2002 the applicants contacted the Ministry of the Interior seeking information about Mr S. Selami’s whereabouts. By a letter of 29 August 2002, the Ministry had informed them that Mr S. Selami had been admitted to Skopje Hospital. 7. According to a medical certificate from Tetovo Medical Centre issued on 29 January 2003 on the basis of the available medical evidence, Mr S. Selami was in a post-operative state (following medical trepanation of his skull and evacuation of the internal brain haemorrhage); parts of his skull and the tough brain membrane had been seriously damaged; he had suffered reduced mobility of all limbs, muscle hypotonia and neck and rib fractures. According to the report, those injuries had qualified as serious and had had permanent effects on the life and body of Mr S. Selami. 8. As to the subsequent establishment of facts by the domestic civil courts, see paragraphs 15-18 below. 9. On 31 August 2002, five days after first having been detained and beaten by the police (see paragraphs 15 to 22 below), an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against Mr S. Selami and three other persons in connection with their alleged involvement in enemy activities against the State and ordered their pre-trial detention. The investigating judge specified that Mr S. Selami had been hospitalised and that the detention order would be enforced as soon as he was discharged from hospital. Mr S. Selami’s detention was extended on three occasions. The extension orders specified that he had been deprived of his liberty on 18 September 2002 and that he had been held under the detention order in Skopje Hospital until 18 October 2002. 10. On 14 November 2002 Mr S. Selami was indicted for membership of a terrorist group whose aim had been to organise terrorist attacks on the police in order to endanger the security and constitutional order of the State. On 10 December 2002 Mr S. Selami was released on bail on account of, inter alia, the “serious deterioration of [his] health”. 11. By a judgment of 9 September 2003 the trial court discontinued (запира) the criminal proceedings against Mr S. Selami since the prosecution had withdrawn the charges. The remaining accused were acquitted (ослободени од обвинение). 12. On 18 November 2003 Mr S. Selami contacted the Ministry of Justice with a view to securing an out-of-court settlement and payment of 16,170,000 Macedonian denars (MKD – equivalent to 263,000 euros (EUR)) in respect of pecuniary and non-pecuniary damage caused, so it was asserted, by the unlawful deprivation of his liberty and the serious injuries that he had sustained at the hands of the police on 26 August 2002. In support he submitted the medical certificate from Tetovo Medical Centre (see paragraph 7 above). 13. In the absence of any response from the Ministry, on 30 January 2004 Mr S. Selami and the applicants submitted two separate lawsuits, one in relation to his unlawful detention and one in relation to his physical ill-treatment by the police, claiming pecuniary and non-pecuniary damages in both. They reiterated that on 26 August 2002 Mr S. Selami had been unlawfully deprived of his liberty; that he had been taken to police stations where he had been beaten and physically ill-treated; and that the police had taken him to Skopje Hospital where he had undergone head surgery. On 19 September 2002 he had been transferred from the hospital to Skopje detention facility in view of his detention on remand. The applicants’ claim was based on section 190(3) of the Obligations Act (Закон за облигационите односи), which entitles a spouse and children to obtain non-pecuniary damages in a case of severe disability of the victim (see paragraph 27 below). 14. Both claims were joined and decided in a single set of proceedings. During the proceedings, the domestic courts commissioned two expert opinions and admitted into evidence extensive medical material issued by relevant medical institutions in Switzerland concerning Mr S. Selami’s earlier injury while at work in that State. 15. In a judgment of 22 April 2010, the Gostivar Court of First Instance ruled partly for Mr S. Selami and, relying on section 189 of the Obligations Act (see paragraph 26 below), it awarded him the equivalent of EUR 18,000 in non-pecuniary damages for the unjustified detention between 19 September and 10 December 2002. It dismissed the remaining part of Mr S. Selami’s claim. As to the applicants’ claims, the court held that the consequences suffered by Mr S. Selami as a consequence of “the unjustified detention” could not be regarded “extremely severe disability”, as required by section 190(3) of the Obligations Act. 16. On the basis of the available medical evidence, the court established that in 1985, while at work in Switzerland, Mr S. Selami had fallen and injured his spine and right leg, which had become dysfunctional. As a result of that injury, he had been certified as disabled for the purposes of work in Switzerland and he had had to use crutches and a disability-adapted car. 17. Relying on the expert evidence admitted at the trial, the court established, as a matter of fact, that during the “incriminating event of 26 August 2002 ... Mr S. Selami had sustained serious bodily injury. As a result of the head trauma, there was haemorrhage ... in the right (part of the brain) ... After the surgery, Mr S. Selami had remained in coma and ... had been connected to a ventilator for assisted breathing. He had recovered after three weeks ...”. The court further referred to the expert opinion according to which Mr S. Selami had sustained strong and intensive physical pain, as well as strong emotional pain and humiliation while being beaten. He had sustained serious head injuries, which had affected, though not permanently, the left side of his body and had provoked other negative psychological effects. 18. Relying on the statements of Mr S. Selami and the first and fourth applicants, the court established that in August 2002 the police had searched their house. They had asked Mr S. Selami to come with them to Gostivar police station. There, he had been questioned in relation to an incident in which two policemen had been killed. He had denied having any connection to that incident. He had been taken by police car to Skopje, where he had been placed in “a cellar or a garage” and beaten. The applicants had not been aware of Mr S. Selami’s whereabouts for several days after which they had discovered that he had been hospitalised in Skopje Hospital. Despite these findings of fact, the Court of First Instance expressed no conclusion about the lawfulness of any detention prior to 19 September 2002 or the treatment suffered by Mr S. Selami during that detention. 19. Both Mr S. Selami and the applicants appealed to the Skopje Court of Appeal. They argued that the first-instance court had not determined their claim in relation to the serious injuries inflicted on him by the police, as a result of which he had had his skull broken; had suffered a brain haemorrhage; had required head surgery; had been immobilised and had lost the full use of his hands. The Solicitor General also challenged the judgment. 20. On 6 April 2011 Mr S. Selami died. 21. On 24 August 2012 the Skopje Court of Appeal dismissed the appeals by Mr S. Selami and the applicants and allowed the appeal by the Solicitor General. It overturned the lower court’s judgment and awarded Mr S. Selami the equivalent of EUR 9,800 in respect of non-pecuniary damage due to his “unjustified detention between 19 September and 10 December 2002”. The court, inter alia, stated: “In the impugned judgment, the first-instance court established ... on the basis of the expert opinion [that Mr S. Selami] had experienced intense pain on his head and body when he had been physically attacked ... every blow had caused physical pain of different intensity, accompanied by swelling and bruises on his body ... Regarding the intensity and duration of the fear, the experts are of the opinion that when arrested and physically assaulted and hit, particularly on his head, [Mr S. Selami] had had intense, unpleasant, emotional experiences of primary fear ... which persisted until he had fallen into a coma ... Regarding the emotional suffering due to his unjustified deprivation of liberty and detention, the experts are of the opinion that the basis for an award of non-pecuniary damages ... is the time calculated as of 26 August 2002 ... when [Mr S. Selami] was arrested by the police ..., transferred to other police stations, where he was subjected to serious physical ill-treatment and beaten, which caused serious bodily injury ... This court considers that the [above] facts were correctly established. ... ... This court established on the basis of medical evidence that in 1989 [Mr S. Selami] had been certified disabled in Switzerland and that he had been receiving disability benefits ever since. The serious injury inflicted on him (during the 2002 detention) had caused his left limbs to become dysfunctional to a minor extent, which cannot be regarded as an extremely severe disability.” 22. The court rejected the applicants’ arguments that the first-instance court had not decided the claim for compensation for damage sustained as a result of Mr S. Selami’s physical ill-treatment. In this connection it stated that: “the operative provisions and the reasons given in the [impugned] judgment clearly and unequivocally confirm that the court had decided the entire claim ... This court considers that the emotional suffering due to unjustified detention is a single type of damage which includes all the detrimental effects on the victim, including his physical ill-treatment ... In assessing the amount of the award, this court took into consideration all therespect with which the plaintiff was held in his family and in the community, that during the unjustified deprivation of liberty he was physically ill-treated and sustained serious bodily injury, as a result of which his left limbs became dysfunctional to a minor extent, that he was hospitalised and operated on and that he had been disabled before ...” 23. By a final decision of 31 October 2012, delivered by a notary public, the fourth applicant was declared the sole heir of Mr S. Selami’s inheritance, including the compensation awarded to him. The remaining applicants refused to accept being declared heirs of the late Mr S. Selami. 24. On 1 November 2012 the applicants lodged an appeal on points of law against the judgment of the Skopje Court of Appeal reiterating their earlier arguments. The fourth applicant, as the statutory successor of the late Mr S. Selami, lodged the appeal in his name and on behalf of Mr S. Selami. 25. On 11 July 2013 the Supreme Court dismissed the applicants’ appeal on points of law finding no grounds to depart from the established facts and the reasoning given by the lower courts. | 1 |
test | 001-140232 | ENG | POL | COMMITTEE | 2,014 | CASE OF WĘGRZYN v. POLAND | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney | 5. The applicant was born in 1955 and lives in Widełka. 6. The applicant has two children. Prior to his early retirement he had been employed and had paid his social security contributions to the State. 7. On 13 February 2002 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8. Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist doctor on 21 December 2001. The certificate stated that the child (born in 1991) suffered from neurogenic bladder dysfunction and that she was in need of her parent’s constant care. 9. On 18 February 2002 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension. 10. The Social Security Board initially suspended the payment of the pension until the end of February 2002 due to the fact that the applicant was still working on the date of the decision. 11. On 28 February 2002 the applicant’s employment contract expired. 12. Consequently, on 1 March 2002 the Rzeszów Social Security Board started to pay the retirement pension in the net amount of 943.88 Polish zlotys (PLN) (approx. EUR 232). 13. The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and he continued to receive his pension without interruption until the date of the revocation of the right. 14. On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 15. On 8 October 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. 16. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the 1989 Ordinance. 17. The applicant appealed against the decision divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights. 18. On 20 November 2003 the Rzeszów Regional Court dismissed the applicant’s appeal. 19. The applicant appealed against the first-instance judgment. 20. On 16 April 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he had not satisfied the requirement of necessary permanent care. 21. A professional lawyer prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf. 22. On 17 September 2004 the Supreme Court rejected the cassation appeal (odrzucił) on the ground that the lawyer had not indicated the grounds which would justify the examination of the cassation appeal (okolicznośći uzasadniające rozpoznanie kasacji). 23. Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to an early-retirement pension. 24. Throughout the whole period of receiving the EWK pension the applicant did not work. 25. According to the Government’s submissions, on 28 October 2002, the applicant started working at his previous employers’. He continued his employment there until 31 January 2005. As of 1 February 2005 he continued employment with another employer where he is still working on a permanent basis. 26. The Government also submitted that the applicant’s gross annual income amounted to approx. 95% of the average brut salary in Poland in 2003, 97% in 2004, 93% in 2005, 100% in 2006, 82% in 2007, 98% in 2008 and 104% in 2009. 27. The applicant submitted that on 28 October 2002 he had started work as an auxiliary employee with the lowest remuneration and that his salary was lower than before the granting of the EWK pension. He produced a copy of his employment contract dated 28 October 2002 from which it emerges that the contract had been concluded for three months and that the applicant had been paid PLN 1,000 (approx. EUR 250). He also produced two copies of his further employment contracts of 30 April 2003 and 31 October 2003 also concluded for three months each with remuneration amounting to PLN 1,000. 28. According to the information available on the official website of the Social Security Board the average remuneration in Poland was PLN 2,133 in 2002 and PLN 2,131 in 2003. It follows that the applicant’s salary in these years amounted to less than 50% of the average remuneration. 29. The Government also submitted that before being granted the EWK pension the applicant had been employed and his income had amounted to approx. 112% of the average brut salary in 1997, 140% in 1998, 102% in 1999, 109% in 2000 and 136% in 2001. 30. The Government further submitted that the applicant’s son had also worked as of 1 February 2007. | 1 |
test | 001-164000 | ENG | MNE | ADMISSIBILITY | 2,016 | VIDAKOVIĆ v. MONTENEGRO | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković | 1. The applicant, Mr Duško Vidaković, is a Montenegrin national, who was born in 1964 and lives in Bar. He is represented before the Court by Mr M. Mirović, a lawyer practising in Bar. 2. On 8 September 1987 the applicant, a bus driver, was involved in a car accident in which two people died. 3. On 17 August 1988 he was charged with a serious traffic offence. 4. On 11 November 2002, after two remittals, the Court of First Instance (Osnovni sud) in Kotor found the applicant guilty in his absence and sentenced him to two years of imprisonment. On 23 September 2004 the High Court (Viši sud) in Podgorica upheld this judgment. 5. It transpires from the case-file that on various occasions the applicant had relied on his health and an alleged trip to Italy as reasons for not appearing at some hearings, had dismissed his representative, had challenged judges, and had registered a false address as his address of residence. 6. On an unspecified date between 23 September 2004 and 28 February 2005 the above judgments were transmitted to the Court of First Instance in Bar for enforcement against the applicant, which is when the applicant learned about them. 7. On 22 March 2005 the Court of First Instance in Kotor reopened the proceedings, following the applicant’s request to that effect filed on 28 February 2005. The same decision ordered the applicant’s detention due to the fear that he might abscond. 8. On 9 May 2005 the Court of First Instance found the applicant guilty of endangering traffic, sentenced him to two years of imprisonment and prohibited him from driving. The court noted that the applicant had attempted in various manners to prolong the proceedings, including health reasons, “being occupied by other affairs”, dismissing his representative, challenging judges, registering a false address as the address of his residence, and an alleged trip to Italy. On 19 December 2006 the High Court quashed this judgment. 9. On 30 March 2007 the Court of First Instance in Kotor issued a detention order against the applicant so as to ensure his presence at the next hearing, given that neither the applicant nor his representative had appeared at the previous hearing scheduled for 29 March 2007, “thus obviously obstructing” the proceedings. The court noted in this regard that the applicant’s father had appeared instead and had submitted that the applicant was in hospital, but that the medical certificate provided stated that the applicant had been both admitted to and released from hospital on 26 March 2007. In its decision the court further stated, inter alia, that the proceedings at issue had been pending for 20 years and that the criminal prosecution was to become time-barred on 8 September 2007. 10. Between 12 April and 17 September 2007 at least four other hearings were scheduled, notably for 12 April, 21 May, 6 June and 17 September 2007, at which the applicant failed to appear. Between 5 May and 23 July 2007 he was in hospital. 11. On 14 March 2008 the Court of First Instance found the applicant guilty and sentenced him to two years of imprisonment. The court noted, inter alia, that the applicant was “deliberately stalling the proceedings in different ways” (na razne načine svjesno odugovlačio postupak). It made no reference to whether the trial had become time-barred. 12. On 5 May 2008 the applicant appealed. He submitted that the prosecution against him had become time-barred and relied on Article 125 of the Criminal Code (see paragraph 29 below). 13. On 12 February 2009 the High Court dismissed the applicant’s appeal, and proceeded ex officio to uphold the judgment rendered by the Court of First Instance on 11 November 2002. The court also held that the application of statutory provisions relating to prescription was “out of the question as the reopened criminal proceedings were not a criminal prosecution (which was concluded by a judgment) but were conducted upon the applicant’s request and for his benefit”. 14. On 24 March 2009 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud) proposing, inter alia, that the proceedings be terminated as the prosecution had become time-barred. 15. On 4 June 2009 the Supreme Court upheld the High Court judgment, concluding that “the court decided as above given that the judgments of the lower courts are based on law, the law was not breached in the proceedings against [the applicant] nor were there any significant procedural violations of criminal proceedings”. It did not address directly the question of whether the criminal prosecution had become time-barred or not. 16. Between October and December 2007 the applicant challenged all the judges of the Court of First Instance in Kotor, including the judge processing his case, on the ground that they had pursued the proceedings against him even though the criminal prosecution had become time-barred, and requested that the case be transferred to another court. These requests were rejected by the Supreme Court by 14 December 2007. 17. On 21 January 2008 the applicant filed a criminal complaint (krivična prijava) for abuse of office against the judge in charge of processing the case against him. In doing so the applicant maintained, in particular, that the court should have terminated the proceedings against him as the prosecution of the criminal offence that he was charged with had become time-barred. 18. On 26 January 2008 the State Prosecution (Osnovno državno tužilaštvo) rejected the applicant’s criminal complaint, relying on the Conclusion of the Criminal Departments of the Federal Court, the Supreme Courts and the Supreme Military Courts issued in March 1985, which provided that once a judgment finding a defendant guilty in his absence became final the criminal prosecution could not become time-barred if the criminal proceedings were later reopened (see paragraph 30 below). The Conclusion was apparently explained by an opinion that if the prosecution could become time-barred that would favour those defendants who by cunning managed to avoid being tried. The decision also noted that the applicant had failed to appear for hearings scheduled for 29 March, 12 April, 21 May, 6 June and 17 September 2007. No appeal was allowed against this decision. 19. On 13 February 2008 the applicant addressed the Supreme Court, complaining apparently that his prosecution had become time-barred. On 3 March 2008 the Supreme Court, by means of a letter, informed the applicant that the trial in his case had not become time-barred and referred to the Conclusion of 1985. 20. On an unspecified date in 2008 the applicant filed a compensation claim against the State for convicting him after the prosecution of a particular criminal offence had become time-barred. 21. On 9 March 2010 the Court of First Instance ruled against the applicant, which decision was upheld by the High Court and the Supreme Court on 6 July 2010 and 26 October 2010 respectively. The High Court relied on the Conclusion of 1985, and the Supreme Court considered that the provisions on prescription did not apply if the prescription period had ended in the course of the reopened proceedings. On 12 July 2011 the Constitutional Court dismissed the applicant’s constitutional appeal as unfounded, relying on the Supreme Court’s reasoning. 22. On 28 November 2011 the Court of First Instance in Bijelo Polje dismissed the applicant’s request for amnesty. The court noted, inter alia, that on 8 April 2009 the applicant had been served with a writ issued by the court in Bar relating to the enforcement of his prison sentence. The next day the applicant’s representative had submitted that the applicant was residing in Mojkovac and the writ should be forwarded to the court in Bijelo Polje. After the relevant authorities had attempted unsuccessfully to serve the writ on the applicant on two occasions in Mojkovac they had sought the assistance of the police. The police had informed them that the applicant actually had had residence in Bar at an unknown address, after which an arrest warrant (potjernica) had been issued against the applicant. 23. Article 371 provided that the Federal Court, the Supreme Courts of republics and provinces, and relevant military courts would deliver conclusions (načelne stavove) in respect of issues relevant for the implementation of federal regulations. 24. Section 33 provided that the Federal Court, the Supreme Courts of republic and provinces, and the Supreme Military Court convened common sessions (zajednička sednica) and, through their delegates, delivered conclusions on issues relevant for the implementation of federal regulations. In particular, common sessions were to be convened when there was inconsistency in the case-law on issues relevant for the uniform implementation of federal regulations. 25. Section 185 (3) provided that a person who was involved in traffic and failed to comply with the traffic rules negligently (iz nehata), thus jeopardising human lives and causing light bodily injuries, would be punished with imprisonment of up to one year. 26. Section 190 (5) provided that if the criminal offence under section 185 (3) led to the death of one or more persons, the perpetrator would be punished with imprisonment of between one year and eight years. 27. Section 95 (1) provided, inter alia, that a criminal prosecution could not be initiated (ne može se preduzeti) more than ten years after the commission of those criminal offences for which the courts could impose imprisonment of more than five years and less than ten years. 28. Pursuant to section 96 (6) the criminal prosecution of the crime defined in section 190 (5) of the Criminal Act of the Socialist Republic of Montenegro became time-barred in any event when more than twenty years had elapsed since the commission of the crime. 29. This Code entered into force on 1 April 2004 and thereby repealed all incompatible criminal law provisions thereto. Articles 124 § 1 and 125 § 7, however, correspond to sections 95 (1) and 96 (6), respectively, of the Criminal Act of the Federal Republic of Yugoslavia. 30. The said Conclusion (načelni stav) provided that once a judgment finding a defendant guilty in his absence became final the criminal prosecution could not become time-barred if the criminal proceedings were reopened. 31. By judgment of 24 January 2014 the High Court found X guilty in absence and sentenced him to one year’s imprisonment. Following X’s request the proceedings were reopened and by 2 July 2014 the High Court dismissed the indictment as the criminal prosecution had become time-barred in the meantime. On 1 December 2014 the Supreme Court accepted the Supreme State Prosecution’s request for protection of legality and found that the High Court’s decision of 2 July 2014 was in breach of the law. In its decision Kzz. Br. 11/14 the Supreme Court explicitly held that when criminal proceedings were reopened in respect of a person who had been tried in his absence, the statutory provisions on prescription were not applicable regardless of whether the statutory prescription time had expired in the meantime. According to the Supreme Court the reopened proceedings were not a new criminal prosecution, given that the criminal prosecution had already ended by means of a final judgment issued in the defendant’s absence. The reopened proceedings were conducted exclusively upon the request of the defendant in whose favour the proceedings were re-opened and in order to examine the earlier final judgment. | 0 |
test | 001-150848 | ENG | CYP | ADMISSIBILITY | 2,015 | KAYIPLAR AND OTHERS v. CYPRUS | 4 | Inadmissible | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. A list of the applicants is set out in the appendix. 2. 3. The applicants’ relatives, Aydin Ahmet and Bekir Ahmet, disappeared on 15 August 1974, along with 82 other men who were taken by Greek Cypriots from three villages, Taşkent (Tochni), Terazi and Tatlisu. Information known about this incident is set out in Cakicisoy and Others v Cyprus, no. 6523/12 (decision of 23 September 2014), which application was introduced by some 247 relatives of men who had disappeared also at this time. 4. The bodies of the applicants’ relatives were exhumed by the Committee on Missing Persons and their funerals took place on 22 June 2013. A forensic report indicates that the remains bore signs consistent with being hit by numerous bullets. 5. The Attorney-General launched an investigation into the circumstances of the missing 84 men on 27 October 2005. The details of the investigation which is still pending are set out in the above-mentioned Cakicisoy and Others decision (see paragraphs 14-20). 6. See the case-law set out in Cakicisoy and Others v Cyprus (cited above), at paragraphs 28-29. | 0 |
test | 001-157697 | ENG | RUS | CHAMBER | 2,015 | CASE OF ABAKAROVA v. RUSSIA | 3 | Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska | 5. The applicant was born in 1991 and lives in Zakan-Yurt, Chechnya. 6. The facts of the case are connected to Isayeva v. Russia, no. 57950/00, 24 February 2005, and Abuyeva and Others v. Russia, no. 27065/05, 2 December 2010. These two applications were lodged by residents of Katyr-Yurt, Chechnya, who alleged that their relatives had been killed or wounded, and that they had suffered injuries and lost their property during the attack on the village from 4-7 February 2000. In the Isayeva case, cited above, the applicant and her relatives were trying to flee the fighting on 4 February 2000 when an aviation bomb exploded near their minivan, wounding the applicant and killing three of her relatives. In the Abuyeva and Others case, cited above, the applicants described how they had been trapped in the village during intense shelling and had tried to leave through what they had perceived to be a safe exit route. The Court has established a number of facts relevant to the present case, which can be summarised as follows. 7. Ever since the start of operations by the Russian military and security forces in Chechnya in the autumn of 1999, the village of Katyr-Yurt, situated in the Achkhoy-Martan district, had been considered a “safe zone”. By the beginning of February 2000 up to 25,000 persons were living there, including local residents and internally displaced persons from elsewhere in Chechnya. In the period leading up to 4 February 2000 the residents of Katyr-Yurt were not informed by the State authorities about the possible advance of illegal fighters into the village, even though such information was available to the military commanders. On 4 February 2000 the village was captured by a large group of Chechen fighters escaping from Grozny. The Russian military forces carried out an assault, using indiscriminate weapons such as heavy, free-falling aviation bombs, artillery, missiles and other weaponry. Although the operation was not spontaneous and involved the use of indiscriminate and highly lethal weaponry, the residents of the village were provided neither with sufficient time to prepare to leave nor with safe exit routes to escape the fighting. The two exits from the village were controlled by the military by means of roadblocks. The residents were allowed to leave through the roadblock on the road leading towards the district centre of Achkhoy-Martan, but the other one, on the road leading towards Valerick, remained closed during most of the fighting. The shelling of Katyr-Yurt continued until 7 February 2000 inclusive (see Abuyeva and Others, cited above, §§ 8 and 197-201). 8. The applicant and her family had been living in the village of ZakanYurt, situated about thirteen kilometres from Katyr-Yurt. In November 1999 the applicant turned eight years old. She had lived with her mother, father, two elder brothers and a younger sister. She could remember the events of winter 1999-2000 when the hostilities erupted. On 1 February 2000 a large group of insurgent fighters entered Zakan-Yurt, walking into houses and asking for clothes and food. On the same day airstrikes started. The applicant’s family went into hiding in a cellar. 9. On 2 February 2000 the applicant’s family decided to travel to KatyrYurt, which the applicant’s father described as a “peace zone”. The applicant’s father drove his black Volga car; her mother and brother Magomed sat in front, while the applicant, her sister Madina and brother Ruslan, as well as two cousins, Khava and Luiza Abakarovy, were in the back seat. On the same day they arrived in Katyr-Yurt and stopped in the centre of the village. 10. According to the applicant, they did not know anyone in the village and an unknown man invited them to stay at his house, as did many other villagers. The family stayed with this man for two nights and everything was calm. On the morning of 4 February 2000 airstrikes started, and there were a lot of explosions. The applicant’s family went into the cellar under their host’s house. Many other people also arrived, including relatives and acquaintances from Zakan-Yurt. They stayed in the cellar throughout the day, while the shelling of the village continued. 11. Later in the afternoon the applicant’s father said that it was too dangerous to stay in Katyr-Yurt and that they would drive to AchkhoyMartan. The applicant’s father, mother, two brothers and two cousins, as well as the applicant herself, got into the car. The applicant remembered seeing a lot of people on cars, tractors and on foot trying to get out of KatyrYurt. There were explosions. 12. At some point the applicant lost her conscious awareness of what was happening and found herself lying in the road. Their car was burning. She could see her sister Madina, brother Ruslan and cousin Luisa. They were all alive but wounded and burned. The applicant could not see her parents. An old man brought the applicant into the courtyard of a house. Sometime later the applicant, her sister, brother and cousin were put on a bus. The applicant lost consciousness and woke to find herself in hospital in Urus-Martan. Her legs were covered with plaster, and her face and hands were burned. She also saw her sister Madina in the same room. 13. On 5 February 2000 the applicant and her sister were brought by ambulance to Nazran, Ingushetia. The following morning the applicant did not see her sister and she did not know at that time where her family was. 14. On 4 March 2000 the applicant was discharged from the Nazran hospital, with her legs still in plaster. She was diagnosed with fractures of the left hip and right shin, and thermal burns. The circumstances of the wounding were indicated as “shelling, direct hit on the car in which the family was travelling”. The applicant went to live with her grandmother in Zakan-Yurt. There she learnt that her whole family had died. As a result of the air-strike, the following relatives of the applicant were killed: - Mr Mansur Abakarov, born in 1955, the applicant’s father; - Mrs Khava Zaumayeva, born in 1954, her mother; - Mr Ruslan Abakarov, born in 1987, her brother; - Mr Magomed Abakarov, born in 1985, her brother; and - Mr Madina Zaumayeva, born in 1994, her sister. 15. The applicant’s cousin Ms Khava Abakarova was also killed. 16. In March and April 2000 the Achkhoy-Martan district civil registration office recorded the deaths of the applicant’s mother, father and three siblings which had occurred in Katyr-Yurt on 4 February 2000. The cause of death was recorded as splinter wounds and burns. 17. On 16 September 2000 the prosecutor’s office of the AchkhoyMartan district (the district prosecutor’s office) initiated an investigation into the events of 2-7 February 2000 in Katyr-Yurt in response to a complaint by the applicant in the Isayeva case, cited above. 18. On 19 February 2001 the investigation into the criminal case was transferred to the military prosecutor’s office of the North-Caucasus Military Circuit (the military prosecutor’s office). The case file was assigned number 14/00/0004-01. 19. It appears that in 2000-2001 the investigation questioned most of the applicants in application no. 27065/05, as well as other individuals who had been in Katyr-Yurt at the time. 20. At that time the investigation found it established that 43 civilians had been killed and 53 wounded as a result of the operation. 62 individuals were granted victim status in the proceedings. The applicant’s relatives and the applicant herself were not listed among the victims. 21. On 13 March 2002 the military prosecutor’s office terminated the proceedings in criminal case no. 14/00/0004-01. The decision referred to a large quantity of documents and statements from dozens of witnesses, including local residents, servicemen from various units, and commanding officers. The decision also referred to the results of the military experts’ report of 11 February 2002, which established that the actions of officers from the Internal Troops involved in the special operation in Katyr-Yurt on 4-6 February had been appropriate to the circumstances and in line with the applicable legal provisions. On this basis the investigation concluded that command corps’ actions were absolutely necessary and proportionate to the resistance put up by the insurgent fighters. It found an absence of corpus delicti in the actions of the servicemen. By the same decision the victim status of 62 individuals was withdrawn. The individuals in question were to be informed of the possibility of seeking redress through civil proceedings. 22. It appears that the victims were not informed by the prosecutor’s office about the termination of the proceedings and nothing happened until January 2005, when they learnt that the proceedings had been terminated. 23. Between January and March 2005 the applicants in application no. 27065/05 contacted the military prosecutor’s office in writing, seeking information about the progress of the investigation in case no. 14/00/000401. They referred to the circumstances of the deaths and wounding of their family members and asked to be granted formal status of victims in the proceedings. 24. In response to these requests, between January and April 2005 the military prosecutor’s office informed the applicants of the results of the military experts’ report, the termination of proceedings in criminal case no. 14/00/0004-01 and the withdrawal of victim status in 2002. The letters also confirmed that the investigation had established the deaths and injuries of which they had complained and informed them that they could apply to a civil court to obtain compensation. Some of these letters contained the decision of 13 March 2002 as attachment. 25. On 6 June 2005 26 applicants in Abuyeva and Others case lodged a claim with the military court of the North-Caucasus Military Circuit. They complained about the ineffectiveness and incompleteness of the investigation. In particular, the applicants noted that some of their relatives’ deaths had not been recorded by the investigation and that these persons had not been listed amongst those who died in Katyr-Yurt in February 2000. They asked the court to quash the decision to terminate the criminal proceedings and to oblige the military prosecutor’s office to resume the investigation in the criminal case, to grant each of them the status of victim in the criminal proceedings, and to issue them with copies of the relevant decisions. These complaints did not directly refer to the situation of the applicant’s family. 26. The applicants’ request was granted and the case was reopened in 2007 under the number 44/00/0026-05. However, on 14 June 2007 the investigation was closed, with the same conclusions as in March 2002, on the basis of Article 39, part 1 of the Criminal Code. The decision confirmed the deaths of 46 and the wounding of 53 local residents, without listing their names. An additional expert report was produced by the Military Academy of the Armed Forces in June 2007, which found that the actions of the command corps in planning and executing the operation had been reasonable and in line with domestic law. No copy of that report has ever been disclosed to the applicants or submitted to the Court. The decision stated in this respect: “... The actions of the fighters (the occupation of Katyr-Yurt by a group of fighters numbering three to four thousand persons, the fighters establishing strongholds in the houses, [their] fierce resistance and their using local residents as a “human shield”) ... represented a real danger to the lives and health of the local residents, and could have entailed unnecessary losses by the federal forces ... These circumstances required the taking of adequate measures by the command corps in order to prevent the danger of armed assault against the citizens and their lives and property (residents of Katyr-Yurt and military servicemen), in addition to [the need to safeguard] the interests of society and the State which are protected by law (the reinstatement of the constitutional order in Chechnya). After issuing a preliminary notification and giving the civilians a real opportunity to leave the village, the subsequent extermination of pockets of the fighters’ resistance by means of artillery and attack aircraft, employing area-point method (“зонально-объектовый метод”), did not exclude deaths among civilians. At the same time, the use of such means of extermination was consistent with the circumstances and with the measures taken in order to minimise losses among civilians. The actions of the command corps (commanders) during the preparation and carrying out of the special operation aimed at the liberation of Katyr-Yurt between 4 and 7 February 2000 were in line with the requirements of relevant field manuals, internal regulations and instructions, were lawful and did not contain elements of criminally ”. 27. The decision to grant victim status to 95 people was quashed. The military prosecutor of the United Group Alliance in the Northern Caucasus (UGA) forwarded the decision to the head of the Government of Chechnya, asking it to identify the victims’ places of residence and to inform them of the closure of the investigation, as well as the possibility of seeking compensation through the civil courts. 28. The name of the applicant in the present case was not listed among the 95 individuals who had been granted victim status. 29. After discharge from hospital, the applicant had to keep plaster on her legs for three months. Because the hostilities in Chechnya were still ongoing, her relatives took her to the Volgograd Region to continue her treatment. In 2002 the applicant was taken to Norway for treatment for one week. In 2002 her paternal grandmother, with whom she had been living after her parents’ deaths, died. After that the applicant lived with her maternal grandparents in Zakan-Yurt. 30. In their observations of September 2010, the Government stated that in 2001 a witness had told the investigators about the deaths of six people in a Volga car (see Isayeva, cited above, § 56) but their identities were unknown at that time. It was not until the applicant’s questioning in March 2007 (see below) that the investigation obtained this information. 31. In December 2006 a distant relative of the applicant’s took her to a human rights organisation, at her request, where she found out for the first time that a criminal investigation had been opened into the attack at KatyrYurt. 32. On 18 December 2006 the applicant wrote a letter to the military prosecutor of the UGA and informed him about the deaths of her five relatives and the injuries she suffered on 4 February 2000 in Katyr-Yurt. She attached five death certificates and her discharge papers from the Nazran hospital dated 4 March 2000. 33. On 19 March 2007 the applicant was questioned and granted the status of victim in criminal case no. 34/00/0026-05. At that time the applicant was a minor but the questioning took place in the absence of legal guardian or representative. According to the parties, there is no information indicating the establishment of guardianship over the applicant up to the age of majority. 34. She was not informed of the decision to close proceedings of 14 June 2007 (see paragraphs 26–28 above). The Government submitted in their observations that this had been an omission on the part of the investigator which had been due to the large number of victims in the case. 35. As is apparent from subsequent documents submitted by the applicant, the investigation into the attack upon Katyr-Yurt was reopened in September 2012. The investigators commissioned an additional expert report into the lawfulness and reasonableness of the military intervention. Neither party submitted to the Court the decision to commission the expert report, the questions put to the experts, or a copy of the report itself, nor is it clear which documents were made available to the experts. The applicant’s knowledge of and involvement in this procedural step has not been clarified. It appears that the document, as most other documents in the file, has been classified. A summary thereof and summaries of other documents are contained in a twenty-page-long extract from the decision to close the criminal investigation issued by a senior investigator of the Military Investigations Unit of the Investigative Committee in the Southern Federal Circuit on 9 March 2013 (extract dated 16 March 2013). 36. The aforementioned extract opensat that time. According to the text, on the night of 3 to 4 February 2000 a group of between three and four thousand fighters under the command of field commander Gelayev had entered Katyr-Yurt (also spelled Katar-Yurt). They were armed with automatic firearms, large-calibre machine guns, flame-throwers, portable anti-aircraft launchers and armoured vehicles. On 4 February 2000 the head of the operations centre (OC) of the Western Zone Alignment in Chechnya gave orders to block the village to carry out a special operation. By that time, most inhabitants had left the village and others were hiding in their houses. The decision to evacuate the civilians was taken between 7 and 11 a.m. on 4 February. The population had been informed of this possibility through the head of the administration and by means of a loudspeaker device mounted on a helicopter. Following skirmishes on the outskirts of Katyr-Yurt and casualties suffered by the security forces, at 9 a.m. artillery started to carry out pin-point strikes aimed at clusters of fighters in the centre and on the periphery of the village. After sustaining casualties, a reconnaissance group retreated from Katyr-Yurt on the morning on 4 February, following which attack aircraft were called in. Due to the fierce fighting and the artillery and air strikes upon the clusters of fighters, the residents started to leave, and by midday on 4 February “their outflow had become significant”. The extract stated that the special operation had continued for two days, although the strikes continued until 7 February. On the third night [presumably the night of 6 to 7 February] a significant proportion of the fighters, numbering about 800 in all, had left the village under cover of poor visibility and escaped into the mountains; 386 had been killed during the operation. The commanders of the special operation had taken measures to arrange the evacuation of civilians but their plans had been upset by the fighters, especially in the initial stages of the operation. Many residents trying to leave the village had been caught in the crossfire between the fighters and the security forces. Most residents had been killed or injured in the initial stages of the operation, in the central part of the village where the most intense fighting had taken place. No conclusive figure of injured or dead civilians, fighters or security forces was given in the extract. 37. The extract then states that the latest decision to terminate proceedings had occurred on 28 September 2012. That decision was quashed on 9 October 2012 and the investigation was extended until 9 March 2013. 38. The extract goes on to cite statements from various military and civilian witnesses, without indicating their names or ranks or the dates when these statements were taken (see Isayeva, cited above, §§ 42-92). 39. The document also refers to an additional operational-tactical expert report (“дополнительная комиссионная оперативно-тактическая судебная экспертиза”) produced on 24 September 2012 by unnamed “external experts from the military faculty of the Southern Federal University” (“внештатные эксперты факультета военного обучения Южного федерального университета”) based in Rostov-on-Don. As summarised in the extract, the experts’ conclusion did not differ from the findings reached by the previous expert reports commissioned by the investigation (see paragraphs 21-27 above). The expert report is cited as follows: “In early February 2000 the operational situation in the area of the counter-terrorist operation in Chechnya was extremely tense and difficult. ... After the defeat suffered in the plains of Chechnya and in Grozny, [the illegal insurgents] attempted to move into harsh southern mountainous regions where they would be able to take rest and recover, in order to organise further military action. ... A very difficult situation developed in the area covered by the Western Zone Alignment. Their main task was to prevent the illegal insurgents from breaking through from the mountainous areas of Chechnya to the plains, to identify, disarm and detain members of the illegal armed groups, and to destroy them in the event of armed resistance ... ... In early February 2000 reconnaissance information was received about the taking of Katyr-Yurt by a large group of fighters. The exact number of fighters was unknown. In order to prevent any further gathering of the fighters, it was decided to surround the village and carry out a special operation there ... A plan for the special operation was worked out. The plan detailed the detachments responsible for blocking and searching, the order of fire contact in the event of armed resistance by the fighters, the location of the command headquarters and control points ... The artillery targets were established in advance along the lines of the fighters’ possible escape routes from Katyr-Yurt and potential arrival of reinforcements, outside of the village. Two control points (roadblocks) were established at the two ends of the village to ensure the exit of civilians – one towards Achkhoy-Martan and the other towards Valerik. The civilians left the village through the two roadblocks, along ‘humanitarian corridors’. The head of Katyr-Yurt was informed of the decision to carry out a special operation. He requested postponement in order to ascertain the situation with his own resources and to drive the fighters out of the village. The special operation was postponed for one day. However, the following morning the fighters attacked OMON [special police forces] based in Katyr-Yurt and attempted to break through the lines of the security forces. The security forces sustained casualties. As became apparent during the clashes, the fighters were armed not only with firearms, but also with grenades and fire-launchers, large calibre machine guns, mine-launchers and anti-tank rocket launchers. The fighters were well prepared and were able to use artificial and natural hiding places in order to deliver combat in a populated area. The number of fighters greatly exceeded the security forces (by 4-6 times).” 40. The decision goes on to cite the report’s conclusion that the use of fighter jets, artillery and mine-launchers upon fortified positions had been justified and that the refusal to employ them would have resulted in heavy losses among the security forces and failure to achieve the goals as set. Over a period of three days most fighters present in the village were killed (one military unit had reported 386 killed fighters). 41. The report cited military field manuals and concluded that the actions of the commanders had been in full compliance with those acts. The commanders had organised and planned the enforcement of the objectives set. The pin-point air strikes upon previously agreed targets, the direct strikes by artillery and anti-tank rocket launchers, and the tank and anti-tank guns had been directed by forward air controllers and artillery pointers upon clearly established and observed targets. 42. Page 12 of the extract contains the following citation from the decision: “the evidential material in the criminal investigation file ... shows that over 1,000 fighters who entered Katyr-Yurt were armed with automatic firearms, large-calibre machine-guns, grenade-launchers and armoured vehicles; fortified firing points had been established in the captured houses. [In such circumstances] the use of artillery and airborne weapons between 4 and 7 February 2000 was justified ...” 43. As cited in the extract, the experts focused on the use of artillery and aircraft. From the operative military documents referring to the use of artillery it was impossible to discern where and when exactly, and at what targets the artillery had been employed, since all the documents reviewed by the experts were judged by them as either irrelevant to the operation in question or not containing any relevant information. As to the aircraft, they had used aviation bombs and unguided and guided missiles of undisclosed types. The number of aircraft involved and the number and timing of the mission sorties, as well as the number of missiles and bombs used, was not specified. As cited, the report established that during the mission sorties the pilots had received information from the forward controllers, because the missions were taking place in the vicinity of, or within, the populated area. The target selection was done using smoke pods or by reference to clearly identifiable topographical “highpoints”. There was no evidence of provocations by fighters or mistakes in selecting targets. The document went on to state that the identification of targets had occurred on the basis of information received prior to departure, from the forward air controllers during the flight, and from the observed activity. Since their use by illegal insurgents could not be verified, attacks on vehicles were ruled out unless very precise and distinguishable directions had been received from the ground. The aircraft attacked from a height of about two kilometres and from a distance of about two kilometres; from that distance details such as clothing and the presence of firearms could not be distinguished. For that reason, contact with the air controllers was necessary before and after hitting the selected target. 44. In the cited extract, the experts concluded that “such engagement of artillery and aviation munitions practically ruled out the likelihood of casualties to civilians, except those who were with the fighters in houses occupied by the latter”. 45. They further concluded that the “employment of a minimal amount of artillery, the choice of the most accurate target direction possible, and the use of the minimum amount of shells necessary ... guaranteed safety from injuries by splinters both for the civilians and security forces. ... Having examined the criminal investigation file, the experts concluded that the OC of the Western Zone Alignment and the head of the special operation in Katyr-Yurt had taken all possible measures in order to prevent losses among civilians while planning and carrying out the operation”. 46. Turning to the situation of the civilians, the experts judged that they had been able to leave the village along “humanitarian corridors” through two roadblocks. The information about the corridors had been communicated by means of a helicopter and an armoured personnel carrier (APC). The head of the administration had been properly informed of the beginning of the special operation and, at his request, its start had been postponed for a day. The civilians had been informed of the need to evacuate and two roadblocks had ensured safe and unhindered passage. The civilians had been accorded the time necessary for the evacuation and the transport carrying the civilians was able to travel back and forth through the roadblocks. 47. While the report, as cited in the extract, conceded that an unspecified number of civilians had been killed during the operation through the use of weapons under the control of the operation’s commanders, such measures had been in compliance with the appropriate order of decision-taking in the choice of targets and means employed during the special operation. 48. On the basis of this report, the investigator concluded that the measures resulting in civilian casualties had been absolutely necessary within the meaning of Article 39, part 1 of the Criminal Code (as in the previous decisions of 13 March 2002 and 14 June 2007 – see Abuyeva and Others, cited above, § 159). 49. The extract ended by listing the names of the 47 individuals who had been killed, but Mr Z. M. Isayev (a son of the applicant in the Isayeva case, cited above) was listed twice. It did not contain the names of the applicant’s five family members, nor of her cousin Khava Abakarova (see paragraphs 14 and 15 above). Nor did it contain the names of five relatives of applicants 2 and 24 in the Abuyeva and Others case (see Abuyeva and Others, cited above, § 156). The non-exhaustive list of the wounded included the applicant; however no separate list of victims has been drawn up; nor does it appear that a copy of that decision was sent to them. 50. On 26 September 2013 a lawyer representing Mrs Marusa Abuyeva, another victim in criminal investigation no. 14/90/0092-11, appealed to the Grozny Garrison Military Court against the decision of 9 March 2013 to close the criminal investigation and to terminate Mrs Abuyeva’s victim status in the proceedings. The statement of appeal was based on the following grounds: the decision had not been based on the established facts, no proper collection and examination of evidence had taken place and legal classification of the events had been incorrect. 51. Firstly, it was argued that the investigation had failed to establish the following pertinent facts: the number of illegal fighters in Katyr-Yurt; the timing and conditions of the transmission of information about the operation and evacuation of civilians; the purpose of the roadblocks at the two extremities of the village; and the details of the aircraft bombings. As to the number of fighters, the statement of appeal referred to various figures cited in the extract and emphasised the fact that the source of this information had not been identified. Likewise, there was a lack of clarity as to the number of fighters killed, nor were there any indications as to any names, identification procedures etc. The appeal statement also pointed out that the number of the security force personnel involved had not been given; it was therefore difficult to evaluate the numerical superiority of the fighters and the need to employ massive weapons. Furthermore, the victim challenged the statement that the administration and population of Katyr-Yurt had been informed about the operation in advance, pointing to the absence of any clear evidence in the case-file to that effect. Turning to the roadblocks set up by the security forces, the appeal statement pointed out that there were no grounds for concluding that this measure had facilitated the exit of civilians from Katyr-Yurt and reiterated the findings made in this respect by the Court in the judgments in the Isayeva and Abuyeva and Others cases (both cited above, §§ 194 and 199, accordingly). As to the details of aircraft bombing, it was argued that the investigators had accepted two mutually incompatible versions and no steps had been taken in order to clarify whether the pilots, or the aviation controllers who had coordinated the fire, had been able to observe and distinguish legitimate targets (members of illegal armed groups) from civilians. It was also pointed out that the employment of unguided missiles and free-falling general purpose bombs in any event ruled out the possibility of limiting the impact to the selected targets. 52. As regards the incompleteness of the investigation, it was stressed that the investigators had failed to collect the information necessary to evaluate the threat to the civilian population and the appropriateness of the use of selected weapons and ammunition, and to compile an exhaustive list of victims and damage caused. On the last point, it was emphasised that no list of those who had been killed, both civilians and fighters, had ever been compiled and that the information in this regard remained incomplete. 53. Finally, it was argued that the legal classification of the commanders’ actions had been incorrect and that the application of Article 39 part 2 of the Criminal Code had been unjustified without the prior 54. On 6 December 2013 the Grozny Military Garrison Court examined and dismissed the appeal. The court referred to the conclusions of the expert report of 24 September 2012, according to which the actions of the operational commanders had been in accordance with the relevant field manuals and other instructions and were justified in view of the numerical superiority of the fighters. The court also found that the evidence collected by the investigation justified the conclusions reached as regards each of the points raised by the appeal. As to execution of the Isayeva and Abuyeva and Others judgments, the court stressed that in accordance with Article 46 of the Convention, and in line with the Resolution of the Plenary of the Supreme Court No. 21 of 27 June 2013, the investigation had been reopened in 2012 and a number of relevant steps had been taken. In particular, a new expert report had been commissioned and carried out. The Court’s position on the ineffectiveness of the previous investigation had therefore been taken into account and the failings had been rectified. 55. The victim appealed. In her appeal of 23 December 2013 it was stressed that the breach of procedural obligations under Article 2 in this case had taken on a lasting character. Pointing to the relevant passages in the Isayeva and Abuyeva and Others judgments, both cited above, the appeal argued that the following fundamental defects of the investigation, as identified by the Court, had not been corrected in the new round of proceedings: there had been no independent evaluation of the proportionality and necessity of the lethal force used; no individual liability had been established for the aspects of the operation which had led to civilian losses, and these aspects had not been studied and evaluated by an independent body, preferably a judicial one. It was reiterated that the expert report of September 2012, as cited in the decision of 9 March 2013, had simply repeated the findings of two previous expert reports which had already been examined by the Court. Like the previous two, it had not been based on the pertinent facts of the case. Finally, the important question of the total number of victims had still not been resolved, as demonstrated by the failure to include some of the victims’ deceased relatives in the total. 56. On 6 March 2014 the Rostov Circuit Military Court examined the appeal. During the hearing, the victim’s representative submitted a number of additional points. He concentrated on the relevant precepts of international humanitarian law and the practice of international criminal tribunals which, he argued, should have guided the investigator in his examination of the case. In his view, the decision of 9 March 2013 had failed to take into account the relevant interpretation of these provisions in so far as it concerned the definition of victims as civilians, and the widespread, systematic, indiscriminate and disproportionate attacks on them. 57. The Circuit Military Court dismissed the appeals. It found that the Garrison Court had examined all the relevant evidence and had applied a comprehensive and consistent interpretation thereto. At this stage, the judge was unable to analyse the substance of the question of guilt or innocence, or to evaluate the correctness or sufficiency of the evidence collected. The Circuit Court stressed that the victim’s arguments regarding both the incompleteness of the investigation and the failure to take into account the European Court’s binding judgments had been thoroughly examined and dismissed. 58. As is apparent from subsequent documents, the victim’s Supreme Court cassation appeal was unsuccessful. On 25 September 2014 a judge of the Supreme Court refused to accept the request for review, in view of the detailed and well-reasoned decisions of the military courts. The victim’s argument that the legal position of the Court in the new round of proceedings had not been taken into account was judged to be unfounded. | 1 |
test | 001-147691 | ENG | UKR | ADMISSIBILITY | 2,014 | PETLYOVANYY v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | The applicant, Mr Petro Yakovych Petlyovanyy, is a Ukrainian national who was born in 1960 and lives in Kolodribka. He was represented before the Court by Ms I. Petrunko, a lawyer practising in Chernivtsi. The Ukrainian Government (“the Government”) were represented by their then acting Agent, Mr M. Bem, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In December 2006 the applicant made a deposit with a private entity, the Sidney Plus Credit Union (“the Credit Union”), and was subsequently unable to receive his money back. On 20 April 2007 criminal proceedings were instituted against officials of the above entity for financial fraud and the applicant was recognised in June 2007 as an aggrieved party in those proceedings, being entitled to claim an amount of UAH 55,476.99 (equivalent to EUR 9,124.60). On 5 May 2008 the Ternopil Regional Commercial Court declared the Credit Union bankrupt. The founder of the Credit Union, Ms L., was placed on the list of wanted persons. In February 2008 the applicant lodged a claim with the Zalishchytskyy District Court against the Ministry of Finance and the State Treasury, seeking to recover the losses sustained as a result of the crime under Article 1177 of the Civil Code. By decision of 25 March 2008 the court rejected the applicant’s claim on the ground that a special law laying down the conditions and mechanism for enforcing the provisions of Article 1177 of the Civil Code had not yet been enacted. Furthermore, the court noted that the identity of the person who caused the damage to the applicant had been established but that her whereabouts were unknown, and that the insolvency of the accused person had not been established. On 22 May and 23 July 2008 respectively the Ternopil Regional Court of Appeal and the Supreme Court upheld the decision of the first-instance court. The Civil Code, which came into force in 2004, lays down different obligations as to compensation in respect of damage. Among others, two articles, namely Article 1177, relied on by the applicant in the domestic proceedings, and Article 1207, provide for the State to compensate the victims of a crime if the offender is not identified or is insolvent. Article 1177 provides as follows: “1. Pecuniary damage caused to the property of a natural person as the result of a crime shall be compensated for by the State if the person who committed the crime is not identified or is insolvent. 2. The conditions and procedure governing compensation for pecuniary damage caused to the property of a natural person who was the victim of a crime shall be established by law.” | 0 |
test | 001-145068 | ENG | ESP | GRANDCHAMBER | 2,014 | CASE OF FERNÁNDEZ MARTÍNEZ v. SPAIN | 1 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | Alejandro Saiz Arnaiz;Alvina Gyulumyan;András Sajó;André Potocki;Angelika Nußberger;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Dmitry Dedov;Egbert Myjer;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Paul Lemmens | 12. The applicant was born in 1937 and lives in Cieza. He is married and the father of five children. 13. He was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from the obligation of celibacy. At that time he did not receive any answer. The following year he was married in a civil ceremony. He has had five children with his wife, to whom he is still married. The parties have not submitted any details concerning his status as a priest not having received a dispensation. 14. From October 1991 onwards, the applicant was employed as a teacher of Catholic religion and ethics in a State-run secondary school of the region of Murcia under a renewable one-year contract. In accordance with the provisions of a 1979 Agreement between Spain and the Holy See, “religious education shall be taught by the persons who, every school year, are appointed by the administrative authority from among those proposed by the Ordinary of the diocese” (see paragraph 50, below). In accordance with a Ministerial Order of 1982, “the appointment is to be made annually and renewed automatically, unless an opinion to the contrary is given by the Ordinary before the start of the school year, or unless the public authority, for serious academic or disciplinary reasons, considers it necessary to annul the appointment, in which case the Church authority shall be heard ...” (see paragraph 51, below). Furthermore, Article VII of the Agreement provides that “at all levels of education, the remuneration of teachers of Catholic religion who do not belong to the State teaching staff shall be decided jointly by the central administration and the Spanish Episcopal Conference, such that it will be applicable from the entry into force of the present agreement” (see paragraph 50, below). 15. In November 1996 the Murcian newspaper La Verdad printed an article about the Movement for Optional Celibacy of priests (MOCEOP), which read as follows: A representative of the diocese explained that the protest-oriented nature of the gathering might disturb the peace of the monastery. m. de la vieja – murcia Father Francisco Tomás, head of the community of the Brothers of La Luz, in Murcia, has refused to allow access to the monastery to about a hundred married priests who wished to celebrate mass and spend the day there with their wives and children. Francisco Tomás stated that the monastery was a place of private worship and that the priests had not applied for the necessary authorisation. He added that, because of the advanced age of Brother Manuel (80 years old), the only monk residing at La Luz, he did not feel it was appropriate to hold a meeting that might disturb the peace of the monastery as a result of the publicity given to the event and the protest-oriented intentions of the Movement for Optional Celibacy. Yesterday, the diocesan delegate for cultural heritage, Francisco Tomás, refused to allow the members of the Movement for Optional Celibacy (MOCEOP) to celebrate mass inside the monastery of La Luz, in El Valle. Father Tomás explained that the married priests had not sought permission to use the monastery’s church. In addition, the movement had intended to make the most of the day to hold an information meeting about the IVth International Congress of married priests held in Brasilia last July on the theme ‘Ministries of the third millennium’. Francisco Tomás also explained that only one 80-year-old monk lived in the monastery and that it was not desirable to disturb the peace of this brother with protests that would attract media attention to this place of private worship. For his part, the regional coordinator of MOCEOP, Pedro Sánchez González, stated that the requisite authorisation had certainly been applied for but the Movement had not received a reply and he did not think that such a permit would be indispensable for the celebration of mass in a hermitage. The publicity given to the event in the press had dissuaded a large number of the Movement’s members from attending the gathering in La Luz. Others, seeing the monastery’s doors closed, merely waved to their colleagues without getting out of their cars and turned round. Only about ten secularised priests stayed there with their families to explain their situation to the media and those present. Some of their children even held up a banner. They eventually went away to have lunch together, intending to celebrate mass amongst themselves. Lorenzo Vicente, Pedro Hernández Cano, Crisanto Hernández and José Antonio Fernández – a former seminary director – are among the married priests who gathered at La Luz yesterday to advocate optional celibacy and a democratic rather than a theocratic Church in which laymen would take part in electing their parish priest and their bishop. The rule of celibacy is Church-made and not divinely inspired. They also expressed their disagreement about certain economic issues: ‘Those of us who paid contributions to the clergy’s mutual insurance fund, which was subsequently incorporated into the social security system, lost all our rights when we became secularised. Moreover, nuns are in an even worse situation than priests because they donate their property to the community and lose everything’, they declared.” The article also contained a separate part, under a different heading: On issues such as abortion, birth control, divorce or sex, Pedro Hernández Cano and his friends from the MOCEOP said that they were in favour of responsible paternity. They added that abortion was ‘a personal problem which should not be prohibited by law, but [that] a social structure is needed to support women facing maternity. To castigate a woman as a sinner if she gets pregnant out of wedlock just encourages abortion’. The married priests emphasised that birth control was clearly necessary ‘and that, consequently, everyone should be free to choose the means that they find most appropriate’. ‘Sex is a gift from God and not a scourge, and even the Pope does not believe that it leads to damnation. If that were the case, he would not have put on hold the current 6,000 requests for secularisation’, they concluded.” 16. By a “rescript” of 20 August 1997, the Pope granted the request for dispensation from celibacy that the applicant had submitted thirteen years earlier, stipulating that the applicant was dispensed from celibacy and lost his clerical “state”. He forfeited the rights related to that “state”, as well as the ecclesiastical honours and functions (dignitates et officia ecclesiastica in Latin). He no longer had the obligations associated with the clerical “state”. The rescript further noted that the applicant was barred from teaching the Catholic religion in public institutions, unless the local bishop decided otherwise, for lower-level schools (in institutis autem studiorum gradus inferioris), “according to his own prudent judgment [prudenti iudicio] and provided that there [was] no scandal [remoto scandalo]”. The applicant was notified of the rescript on 15 September 1997. 17. On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education in a written memorandum about the applicant’s termination of service as a teacher in the school where he was working. 18. The Ministry informed the applicant on 9 October 1997 that his employment had been terminated with effect from 29 September 1997. 19. In an official memorandum of 11 November 1997 the Diocese observed as follows: “[The applicant], a secularised priest, taught classes in Catholic religion and ethics ... by virtue of the powers conferred on bishops by the rescripts ... Those powers ... may be exercised for the teaching of subjects related to Catholic religion, provided there is no ‘risk of scandal’. When the [applicant’s] situation became a matter of public and common knowledge, it was no longer possible for the bishop of the diocese to make use of the powers conferred upon him by the rescript; accordingly, the document authorising [the applicant] to teach Catholic religion and ethics was not signed, with effect from the current academic year. [The applicant]’s personal and employment situation has also been taken into account, since [he] is entitled to receive unemployment benefit for at least a year and a half. The Diocese of Cartagena regrets this situation, while pointing out that the decision was taken also out of respect for the sensitivity of many parents who might be upset to learn of the situation of [the applicant], who was teaching Catholic religion and ethics in an education centre. Lastly, the Diocese trusts that Christian people and society in general will understand that the circumstances surrounding these facts cannot be assessed solely from an employment or professional standpoint. For the Catholic Church, the sacrament of the priesthood is of a nature that surpasses the strictly employment or professional context.” 20. The director of the secondary-education centre where the applicant had been teaching sent a note to the Bishop of Murcia in which the centre’s board of teachers expressed its support for the applicant and stated that he had given his classes during the school year 1996/97 to the full satisfaction of the teachers, the pupils and their parents, and the centre’s management. 21. Initially, the applicant lived on unemployment benefit. In 1999 he found a job in a museum, where he worked until his retirement in 2003. 22. Having been unsuccessful in his administrative complaint against the decision of the Ministry to terminate his employment, the applicant filed an appeal against that decision with an administrative court. The appeal was dismissed on 30 June 2000 on the ground that the decision to formalise the termination of the applicant’s employment was “the only course of action open to the administrative authorities” once the Diocese had decided not to propose the applicant for appointment. 23. The applicant then brought proceedings for unfair dismissal before Murcia Employment Tribunal no. 3. The Employment Tribunal gave its judgment on 28 September 2000. 24. The tribunal began by examining the facts as established and noted that the applicant had held various posts within the Catholic Church, such as director of the seminary of Murcia or that of episcopal vicar of the region of Cieza and Yecla. It further observed that the applicant was a member of MOCEOP. 25. The tribunal then referred to the arguments used by the Diocese to justify the non-renewal of the applicant’s contract, namely the fact that he had made public his situation as a “married priest” (he had not received a dispensation from the Vatican until 1997) and father, together with the need to avoid scandal and to respect the sensitivity of the parents of the school’s pupils, as they might be offended if the applicant continued to teach Catholic religion and ethics. In this connection the tribunal took the following view: “[I]n the light of the facts thus presented, Mr Fernández Martínez was discriminated against because of his marital status and his membership of the Movement for Optional Celibacy, his appearance in the press having been the cause of his dismissal.” 26. The tribunal further pointed out: “The principle of non-discrimination at work encompasses the prohibition of discrimination on account of belonging to a trade union and union activity, and this applies to membership of any other association.” 27. Lastly, the tribunal noted that the applicant’s situation as a “married priest” and father had been known to the pupils and their parents and to the directors of the two schools where he had worked. 28. Consequently, the tribunal upheld the applicant’s appeal, declared his dismissal (as it was described in the judgment) null and void, ordered the Region of Murcia to reinstate him to his former position, and ordered the State to pay him the outstanding salary. It dismissed the applicant’s claim in so far as it was directed against the Diocese of Cartagena. 29. The Ministry of Education, the Education Authority for the Region of Murcia and the Diocese of Cartagena lodged an appeal (suplicación). In a judgment of 26 February 2001, the Murcia High Court of Justice allowed the appeal, finding as follows: “... The teaching [of Catholic religion and ethics] is associated with the doctrine of the Catholic religion ... Accordingly, the bond created [between the teacher and the bishop] is based on trust. [As a result,] it is not a neutral legal relationship, such as that which exists between citizens in general and public authorities. It falls on the borderline between the purely ecclesiastical dimension and a nascent employment relationship.” 30. Moreover, the court referred to the bishop’s prerogatives in such matters and took the view that in the present case there had not been a violation of Articles 14 (prohibition of discrimination), 16 (freedom of thought and religion), 18 (right to respect for private and family life) or 20 (freedom of expression) of the Spanish Constitution, since the applicant had taught religion since 1991, the Bishop of Murcia having extended his employment from year to year even though his personal situation had been identical. The court concluded that, when the applicant had decided to reveal that situation publicly, the Bishop of Murcia had merely used his prerogative in accordance with the Code of Canon Law, that is to say, ensuring that the applicant, like any other person in that situation, carried out his duties with discretion and without his personal circumstances causing any scandal. In the court’s view, if such a situation became public knowledge, it was the bishop’s duty to cease proposing the person concerned for a post of that nature, in accordance with the requirements of the rescript granting dispensation from celibacy. 31. In addition, as regards Article 20 of the Constitution in particular, the court noted that for the purposes of Article 10 § 2 of the European Convention on Human Rights, the restrictions imposed on the applicant’s rights had to be considered legitimate and proportionate to the aim pursued, namely the avoidance of scandal. 32. Furthermore, the court analysed the question of the bond of trust and concluded as follows: “... Where such a bond of trust is broken (and in the present case there are circumstances that reasonably allow such a conclusion to be reached), the bishop is no longer obliged to propose the person in question for the post of teacher of Catholic religion.” 33. Lastly, as to the nature of the contract, the court took the view that, since its renewal was subject to annual approval by the bishop for the following school year, it was a temporary contract, which in the present case had simply expired. It was thus not possible to consider that the applicant had been dismissed. 34. Relying on Articles 14 (prohibition of discrimination), 18 (right to respect for private and family life) and 20 (freedom of expression) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. He alleged in particular that the decision not to renew his contract on the ground that he had made public his membership of MOCEOP and his dissenting opinions on the celibacy of Catholic priests constituted an unjustified interference with his private life and was incompatible with his right to freedom of religion. 35. By a decision of 30 January 2003, the chamber to which the case had been allocated declared the amparo appeal admissible and, in accordance with sections 50 to 52 of the Organic Law on the Constitutional Court, notified the decision to the parties and requested a copy of the case file from the courts below. 36. In its mandatory intervention before the Constitutional Court, the public prosecutor’s office (Ministerio Fiscal) argued in favour of granting the applicant’s amparo appeal. In this connection, it criticised the reasons given by the High Court of Justice, which had considered the non-renewal of the contract justified in so far as the applicant had acted in a manner that was contrary to the rescript of dispensation when he had agreed to make his family situation public. The public prosecutor’s office noted that the applicant’s public appearance had taken place well before the dispensation from celibacy was granted to him, and therefore before the existence of that rescript. It further pointed out that the applicant’s membership of the movement in question had been known to the Church authorities. It took the view that since the applicant’s conduct which had served as the justification for the non-renewal of his employment – namely, his attendance at an event organised by the movement – came within the scope of his freedom of thought, the dismissal amounted to a violation of his right to equality (Article 14 of the Constitution), read in conjunction with his right to freedom of thought (Article 16 of the Constitution). 37. In a judgment of 4 June 2007, served on 18 June 2007, the Constitutional Court dismissed the amparo appeal. 38. The Constitutional Court first examined the alleged violations of Articles 14 (right to equality) and 18 (right to respect for private and family life) of the Constitution and dismissed those complaints, the first because the decision not to propose the applicant for appointment as a teacher was not based on any intention to discriminate against him on account of his marital status, and the second on the ground that he himself, of his own free will, had made public both his personal and family situation and the fact that he was a member of MOCEOP. 39. The Constitutional Court then addressed what it regarded as the main question in the amparo appeal, namely, the alleged violation of Articles 16 and 20 of the Constitution. It thus sought to ascertain whether the facts in issue could be justified by the religious freedom of the Catholic Church (Article 16 § 1 of the Constitution) in conjunction with the State’s duty of religious neutrality (Article 16 § 3 of the Constitution), or whether, by contrast, they constituted a breach of the applicant’s right to freedom of thought and religion (Article 16 § 1 of the Constitution) in conjunction with his right to freedom of expression (Article 20 § 1 (a) of the Constitution). For that purpose, the court relied on the criteria laid down in its judgment no. 38/2007 of 15 February 2007 concerning the constitutionality of the system of selection and recruitment of Catholic religion teachers in State schools. In this connection it emphasised the special status of teachers of religious education in Spain and took the view that this status justified the fact that the religious beliefs of such teachers would be taken into account in the selection process. 40. At this point, the Constitutional Court explained as follows: “... the task of the Constitutional Court in the present case, as in other cases where there is a conflict between fundamental rights of a substantive nature, is to ascertain whether the courts [below] weighed up the competing rights at stake in a manner that reflected their constitutional definition ... In doing so, it is not bound by the assessment already made by those courts. In other words, the assessment of this Court is not confined to an external review of the adequacy and consistency of the reasons given for the decision or decisions ...; rather, in its capacity as the ultimate guarantor of fundamental rights, it must resolve any conflict that exists between the affected rights and determine whether those rights have indeed been infringed in terms of their individual constitutional content. However, for this purpose it is necessary to apply different criteria from those applied by the courts [below], as the reasons given by the latter are not binding on this Court nor do they limit its jurisdiction to merely reviewing the grounds of their decisions. ...” 41. As regards the facts of the case, the Constitutional Court began by noting that the reason for the non-renewal had been the article in a regional newspaper, which had caused a scandal according to the arguments put forward by the Diocese of Cartagena in its official memorandum of 11 November 1997. That article had made public two personal characteristics of the applicant already known to the Diocese, namely his family situation as a married priest and father, and the fact that he was a member of a movement that challenged certain precepts of the Catholic Church. That publicity had formed the factual basis of what the Diocese had referred to in its memorandum as constituting a scandal. 42. Noting that the High Court of Justice had effectively reviewed the Bishop’s decision, in particular concerning the latter’s inability to propose candidates who did not have the requisite professional qualifications for the post and the obligation to respect fundamental rights and civil liberties, the Constitutional Court found as follows: “The extensive passages cited from the judgment appealed against demonstrate that it neither rejects the possibility of judicial review of the ecclesiastical authority’s decision nor does it shy away from weighing up the fundamental rights competing in this particular case with the right to religious freedom (Article 16 § 1 of the Constitution), which it does in an unequivocal manner.” 43. The Constitutional Court then engaged in its own balancing of the competing fundamental rights: “Having dealt with the balancing of the rights at stake in the impugned judgment, this Court must now assess, above and beyond the reasoning of that judgment, the conclusions reached by it after weighing up the conflicting fundamental rights. In doing so the Court must consider not just the rights contemplated in that judgment, but also the right to freedom of thought and religion, an issue which it submitted, of its own motion, for the consideration of the parties... The actions and opinions which resulted in the appellant in the present case not being proposed by the Diocese as a teacher of Catholic religion and ethics were his public disclosure, firstly, of his situation as a priest who was married and the father of five children and, secondly, of his membership of the Movement for Optional Celibacy (as made clear by the judgments of the courts below and expressly conceded by the amparo appellant himself). It is clear that, from the State’s (secular) perspective, these actions and opinions must be considered in terms of a possible infringement of the right to freedom of thought and religion (Article 16 § 1 of the Constitution) in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution), relied on in the application for amparo relief. In order to resolve this issue it must be borne in mind that no rights, not even fundamental rights, are absolute or unlimited. In some instances the provision of the Constitution recognising a right expressly limits that right; in other cases, the limitation stems from the need to preserve other constitutional rights or values which warrant protection. In that connection this Court has repeatedly held that the fundamental rights recognised by the Constitution can yield only to the limitations expressly laid down by the Constitution itself or those which can be indirectly inferred from the Constitution as being justified in order to preserve other rights or values protected by the law. In any case, the limitations imposed may not impede the exercise of the fundamental right in question to an unreasonable degree (see Constitutional Court judgments no. 11/1981 of 8 April 1981, legal ground 7; no. 2/1982 of 29 January 1982, legal ground 5; no. 53/1986 of 5 May 1986, legal ground 3; no. 49/1995 of 19 June 1995, legal ground 4; no. 154/2002 of 18 July 2002, legal ground 8; no. 14/2003 of 28 January 2003, legal ground 5; and no. 336/2005 of 20 December 2005, legal ground 7). In the present case the interference with the appellant’s right to freedom of religion, in its individual dimension, and his right to freedom of thought (Article 16 § 1 of the Constitution) taken in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution), as a result of his not being proposed by the Diocese for appointment as a teacher of Catholic religion and education for the 1997/98 school year – in the context, therefore, of his claim to continue teaching the creed of a particular religious faith in a public educational establishment – was neither disproportionate nor unconstitutional, since it was justified by respect for the lawful exercise of the Catholic Church’s fundamental right to religious freedom in its collective or community dimension (Article 16 § 1 of the Constitution), in conjunction with the right of parents to choose their children’s religious education (Article 27 § 3 of the Constitution). The reasons determining the decision not to propose the appellant as a teacher of Catholic religion and ethics were of an exclusively religious nature, related to the rules of the faith to which he freely adheres and whose beliefs he sought to teach in a public educational establishment.” 44. The Constitutional Court referred to its judgment no. 38/2007 of 15 February 2007, observing as follows: “As this Court held in judgment no. 38/2007 of 15 February 2007, and reiterated in point 5 of the legal grounds of the present judgment, ‘it would be quite simply unreasonable, as regards the teaching of religion in schools, if the religious beliefs of those who decide of their own free will to apply for such teaching posts were not taken into account in the selection process, on the basis of guaranteeing the right to religious freedom in its external and collective dimension’ ... It should certainly be reiterated, as regards the justification and constitutionality of the impact on or modification of the appellant’s fundamental right to freedom of religion and thought (Article 16 § 1 of the Constitution) taken in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution) that, as this Court held in the aforementioned judgment no. 38/2007 of 15 February 2007, ‘the relationship between religious-education teachers and the Church is not entirely the same as that found in organisations which pursue ideological aims, as examined on a number of occasions by this Court, but represents a specific and distinctive category which, while it presents certain similarities, is also different in some respects’. In that connection the Court stated in the same judgment, referring to one of the factors which distinguished the relationship between religious-education teachers and the Church from the relationship within an organisation pursuing ideological aims, and allowed teachers’ rights to be modified in line with the educational ethos of private educational establishments, that the requirement imposed by the ecclesiastical declaration of suitability ‘does not merely consist in a duty to refrain from actions contrary to the religious ethos but extends in a more profound manner to a determination of the individual’s capacity to impart Catholic doctrine, understood as a set of faith-based religious convictions. Since the object of religious instruction is the transmission not only of specific knowledge but of the religious faith of the person who teaches it, this will in all probability imply a series of requirements that transcend the limits of an organisation pursuing ideological aims, beginning with the implicit requirement that persons who seek to transmit a religious faith must likewise profess that faith’ ...” 45. Finally, the Constitutional Court turned to an argument made by the appellant, based on the fact that he advocated changing the rules of the Catholic faith itself, and concluded as follows: “The conclusion reached in the present case as a result of the balancing of the conflicting fundamental rights – on the one hand the Catholic Church’s fundamental right to freedom of religion in its collective or community dimension (Article 16 § 1 of the Constitution) read in conjunction with the State’s duty of religious neutrality (Article 16 § 3 of the Constitution), and on the other hand the appellant’s fundamental right to freedom of thought and religion (Article 16 § 1 of the Constitution) read in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution) – is in no way altered by the appellant’s claim that through his reforming views on celibacy for Catholic priests he sought to defend evolutionary change to rules of the Catholic faith which he considered to have become outdated with the passage of time. As pointed out in the Government law officer’s submissions, the State is debarred by its duty of religious neutrality (Article 16 § 3 of the Constitution) from entering into or determining possible disputes within the Church, in this specific case between proponents and opponents of celibacy for priests. Nor is it for the Court, in more general terms, to pass judgment on the suitability or compatibility of the actions, opinions and conduct of persons appointed to teach a particular religion vis-à-vis the orthodoxy of the religious faith in question. As a State body exercising public authority, the Court must confine itself in the present amparo appeal, in accordance with its duty of neutrality, to finding established the strictly religious nature of the reasons given by the religious authority for its decision not to propose the appellant as a teacher of Catholic religion and ethics. It further finds that the appellant’s fundamental rights to freedom of thought and religion and freedom of expression, within the ambit of which his actions, opinions and choices in this regard might in principle fall, were affected and modified only to the extent strictly necessary in order to ensure their compatibility with the freedom of religion of the Catholic Church. Accordingly, the present amparo appeal must be dismissed.” 46. Two judges appended a dissenting opinion to the majority judgment. They criticised the fact that the balancing of the rights by the Constitutional Court had been confined to a reference to the religious grounds given in the decision to discontinue the applicant’s employment. In their view, the publicity given to a form of conduct that was already known beforehand could not justify the non-renewal of the contract. 47. The applicant subsequently submitted an application requesting that the Constitutional Court’s judgment be declared null and void, on the ground that two of the judges of the Chamber which had given the judgment were known for their affinities with the Catholic Church, one of them being a member of the International Secretariat of Catholic Jurists. 48. In a decision of 23 July 2007, the Constitutional Court rejected the application on the ground that, under section 93(1) of the Organic Law on the Constitutional Court, the only possible remedy against a judgment of that court was a request for clarification. | 0 |
test | 001-181390 | ENG | RUS | COMMITTEE | 2,018 | CASE OF DANDAYEV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-150790 | ENG | RUS | CHAMBER | 2,015 | CASE OF RAZZAKOV v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1971. He is a migrant worker who arrived in Voronezh in 2002 and has been working on construction sites and in repairs. He lives in the village of Mikhnevo, Nizhnedevitskiy district of Voronezh region. 6. At about 2 p.m. on 26 April 2009 the applicant arrived at a meeting place as requested by his employer, Mr G., who was acting on police instructions. Three police officers in plain clothes knocked the applicant to the ground, handcuffed him and pushed him into their unmarked car. They did not explain who they were, where they were taking him or why. According to G., who witnessed the scene, they were armed with pistols. 7. The police officers took the applicant to the Zheleznodorozhniy district police department of Voronezh (отдел внутренних дел Железнодорожного района г. Воронежа, “the Zheleznodorozhniy ROVD”), where he was led to an office on the upper floor. Two police officers in uniforms demanded that he confess to a murder. He refused to do so and was punched. 8. The uniformed police officers and those in plain clothes subjected the applicant to various acts of physical violence. They removed the handcuffs from him and bound his hands with scotch tape instead. He was seated on the floor with his arms around his bended knees. A metal bar was passed under his knees. The police officers lifted him and hung him on the bar, the ends of which were put on two tables. The police officers continued punching him in the head and the rest of his body. The pressure caused by the bar behind his knees was such that it prevented his blood from circulating. The police officers hit him several times on the head with an empty glass beer bottle. The applicant felt unwell. He was taken off the bar and untied for a short time. The police officers then hung him again in the same way and attached wires from a special device to his ears. They subjected him to electric shocks by rotating a handle on the device. The applicant felt sharp pain. 9. Then four men in masks and rubber gloves entered the office. They undressed the applicant completely, including his underwear, tied his arms and legs with his own shirt and leather belt, and hung him with a rope on the door of the office, head down. They showed him a syringe containing a yellowy fluid and threatened him with an intravenous injection. One of them tied a rope to his penis and pulled it, thereby opening and shutting the door on which the applicant was hanging. They squeezed his testicles. Several times the applicant said that he agreed to confess to the murder, but his answers did not satisfy the policemen. At some point they loosened the rope and he fell onto his head. 10. The treatment described above continued until the next morning, when the applicant was placed in a cell for administrative detainees at the same police station. A young man who was detained in that cell advised him to do as the police had requested. Two or three hours later the applicant was taken to an office and given some food. His questioning by the police officers continued. He was warned that he would not be able to support two more days of such treatment. He then confessed to the murder of a certain D., as dictated by them. In the evening he was again placed in the cell for administrative detainees, where he spent the night. 11. On 28 April 2009 police officers B. and E.S. took the applicant in handcuffs to the Zheleznodorozhniy district investigation department of the investigative committee at the Voronezh regional prosecutor’s office (Следственный отдел по Железнодорожному району Следственного управления Следственного комитета при прокуратуре РФ по Воронежской области, “the district investigative committee”) for questioning by an investigator as a witness in a criminal case concerning the murder of D. During the questioning the applicant remained in handcuffs. He was requested to sign a paper in Russian, which he could not read. He was then transferred back to the cell at the Zheleznodorozhniy ROVD. 12. At the end of the day the applicant was taken out of the cell and given back his papers and mobile phone. He was asked to sign a document which he could not read and was released. The applicant’s landlady, Ms S., who had been phoning the police in vain for the past two days to find out about his whereabouts, saw him arrive home at about 8 p.m. with a swollen eye, bruises on his wrists, a swollen leg, a lesion on his right ear resembling a burn mark and suffering from sharp pains in his chest. 13. No criminal proceedings were brought against the applicant. 14. The following morning, on 29 April 2009, accompanied by his landlady, the applicant was examined at the emergency unit of town hospital no. 1 and received a medical certificate diagnosing him with bruising of the soft tissue of his face and his rib cage. 15. On 30 April 2009 the applicant was examined at the Voronezh Regional Forensic Medical Bureau. He described his ill-treatment at the Zheleznodorozhniy ROVD. According to the expert’s forensic medical report (акт судебномедицинского освидетельствования), the applicant had bruises each measuring 3 to 4 centimetres above and below his right eye and on his left eyelid, a bruise on his right cheek, bruises on his chest (two bruises measuring 3 to 4 cm and a bruise of 1 to 2 cm), a bruise of 3.5 to 4.5 cm on his scrotum, abrasions on his forearms and right wrist, a bruise of 4 to 5 cm on his left forearm, and bruises measuring 1 to 2 cm and 2 to 3 cm behind his right and left knees respectively. 16. On 14, 15 and 18 May 2009 the applicant was examined at town clinic no. 3. On the basis of an Xray examination he was diagnosed with a fracture of the ninth rib on the right side. 17. According to a report prepared as a result of a forensic medical examination of the applicant carried out on 19 and 20 October 2009, his injuries could have been inflicted on 26-28 April 2009. 18. According to police records, at 9.15 p.m. on 27 April 2009 police officer M. arrested the applicant, who had allegedly used obscene language in the street, and at 9.30 p.m. brought him to the Zheleznodorozhniy ROVD. The applicant was found guilty of petty hooliganism and sentenced to a 500 Russian rouble (RUB) administrative fine. He was allegedly released at 12 noon on 28 April 2009. 19. On 16 July 2009 the applicant was given access to documents concerning the administrative proceedings against him. On 29 July 2009 the Zheleznodorozhniy District Court of Voronezh examined an appeal lodged by the applicant against the decision of the Zheleznodorozhniy ROVD of 28 April 2009 to give him an administrative fine. The District Court quashed the decision and terminated the administrative proceedings against the applicant for lack of an administrative offence. 20. According to the applicant, on 7 May 2009 the deputy head of the district investigative committee refused to receive his complaint of illtreatment by the police and allegedly threatened to call the migration service and have him deported from the country. 21. On 14 May 2009 the applicant’s counsel lodged a complaint of illtreatment with the district investigative committee, describing the illtreatment in detail. She supported the allegations by submitting the medical certificate of 29 April 2009 (see paragraph 14 above) and the forensic medical report of 30 April 2009 (see paragraph 15 above). She requested that criminal proceedings be brought against the police officers concerned for abuse of power (Article 286 of the Criminal Code) and torture (Article 117 of the Criminal Code). She asked for specific investigative measures to be carried out, in particular an opportunity for the applicant to identify the police officers who had been on duty on 2628 April 2009 and a forensic medical expert examination of the applicant with a view to establishing the possible cause and time of the infliction of the injuries. 22. An investigator of the district investigative committee carried out a preinvestigation inquiry. He interviewed the applicant, who gave a detailed account of his alleged ill-treatment (see paragraphs 6-12 above), Ms S., who saw the applicant arrive home with the injuries after his alleged illtreatment (see paragraph 12 above), and police officer B., who stated that on 26 April 2009 he had stayed home and that on 27-28 April 2009 he had performed duties at the Zheleznodorozhniy ROVD which had had nothing to do with the applicant. The investigator also interviewed police officers Sh. and E., who stated that on 28 April 2009 they had held a “conversation” (беседа) with the applicant in one of their offices, at the request of the head of the criminal unit of the Zheleznodorozhniy ROVD, about the applicant’s involvement in the murder of D. After the “conversation” they had taken the applicant, at the request of their supervisor, to investigator G. of the district investigative department. Both of them denied any violent behaviour on their part. The investigator also obtained the police records, according to which the applicant had been brought to the Zheleznodorozhniy ROVD at 9.30 p.m. on 27 April 2009 (see paragraph 18 above). 23. On 25 May 2009 the investigator refused to institute criminal proceedings concerning the applicant’s complaint for lack of elements of a crime in the acts of police officers Sh. and E., pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”). 24. The applicant appealed against the decision to the Voronezh Zheleznodorozhniy District Court under Article 125 of the CCrP. On 18 June 2009 the District Court terminated the proceedings because the previous day a deputy head of the district investigative committee had quashed the investigator’s decision as unlawful and unfounded. In particular, he had ordered that the head of the criminal police unit of the Zheleznodorozhniy ROVD, S., be interviewed in the course of an additional preliminary inquiry. 25. The investigator’s subsequent decisions of 27 June and 6 August 2009 that no criminal proceedings would be instituted on the applicant’s allegations were likewise revoked on the same grounds by the district investigative committee (on 27 July and 1 September 2009). Court appeals lodged by the applicant were not examined for the same reason (the Zheleznodorozhniy District Court’s decisions of 28 July and 1 September 2009). In his decision of 1 September 2009 the head of the district investigative committee ordered that police officers M. and Se., who had brought the administrative proceedings against the applicant, be interviewed. He also noted that the identity of all the police officers present during the “conversation” with the applicant at the ROVD had not been established. 26. On 11 September 2009 the district investigative committee again refused to institute criminal proceedings for lack of elements of a crime in the acts of police officers Sh., E., S. and R. On 8 October 2009 the investigative committee at the Voronezh regional prosecutor’s office (следственное управление Следственного комитета при прокуратуре РФ по Воронежской области, “the regional investigative committee”) set aside as unlawful and unfounded the district investigative committee’s refusal. It noted, in particular, that the applicant’s allegations were supported by the forensic medical report of 30 April 2009 (see paragraph 15 above), the explanations of Ms S. (see paragraph 12 above) and the police records certifying the applicant’s presence at the police station at the relevant time (see paragraph 18 above). It concluded that there were sufficient data disclosing elements of a crime under Article 286 § 3 (a) and (b) of the Criminal Code (see paragraph 42 below) committed by unidentified police officers at the Zheleznodorozhniy ROVD, and opened criminal proceedings. 27. On 16 October 2009 the applicant was given victim status in the criminal proceedings. 28. On 8 April 2010 the criminal proceedings were suspended for failure to establish the identity of a person to be charged, pursuant to Article 208 § 1 (1) of the CCrP. 29. The proceedings were subsequently reopened and suspended again on the same grounds several times, the last time on 25 November 2010. The investigator established in that decision that at about 2 p.m. on 26 April 2009 three unidentified police officers had taken the applicant to the Zheleznodorozhniy ROVD by force and in handcuffs. In an office on the upper floor of the ROVD two other unidentified police officers in uniforms had demanded that the applicant confess to a murder. He had refused and had been beaten up by the officers who had taken him in. During the period from 26 to 28 April 2009 both uniformed and plain-clothes police officers had subjected the applicant to various acts of physical violence, in particular punching him and hitting him with a glass bottle on his head and other parts of his body, subjecting him to electric shocks via wires attached to his ears and genitalia, and to other forms of torture, as a result of which he had confessed to the murder of D. 30. During the preliminary investigation the regional investigative committee had questioned witnesses, including police officers who had been on duty at the ROVD during the relevant period, the head of the criminal police unit and his deputies, the police officers of the criminal investigation unit, witnesses to the applicant’s apprehension, persons detained in the cells for administrative offenders during the period concerned and the doctor who had examined the applicant on 29 April 2009. It examined the offices where the illtreatment could have taken place and held identification parades to enable the applicant to identify the alleged perpetrators from among a number of the police officers who had been working at the Zheleznodorozhniy ROVD. While a number of those identification parades had not resulted in an identification (for example, police officer D.M. who was found to have been using a phone number from which calls to the applicant’s employer G. had been registered (see paragraph 6 above) had not been identified by the applicant), the applicant had identified police officers B. and S. as participants in his ill-treatment. The investigator found their identification insufficient for the prosecution in view of its alleged inconsistency with the applicant’s statements describing the perpetrators and in view of their alibi, as neither of them had according to their statements allegedly been present at the ROVD during the period concerned. 31. On 9 March 2011 the first deputy to the Voronezh regional prosecutor dismissed an appeal lodged by the applicant against the investigator’s decision of 25 November 2010 (see paragraph 29 above). On 19 April 2011 judge G. of the Leninskiy District Court dismissed a further appeal lodged by the applicant under Article 125 of the CCrP. That decision was upheld by the Voronezh Regional Court on 14 June 2011. In particular, the applicant, represented by his counsel, argued in the court proceedings that the identity of the alleged perpetrators had been established since he had identified police officers B. and S.; hence, it had been wrong to suspend the proceedings for failure to identify the alleged offenders. The courts rejected his submissions and found the investigator’s decision lawful and well-reasoned. 32. Some of the applicant’s allegations – notably that the administrative charge of petty hooliganism against him had been trumped up and that police officer B. had unlawfully handcuffed him on 28 April 2008 when taking him for questioning to the investigator in the murder case – were the subject of separate proceedings. The district investigative committee’s initial refusal to open a criminal case was followed by the regional investigative committee’s decision of 5 December 2011 to open criminal proceedings concerning the alleged forgery of administrativecase documents under Article 292 § 2 of the Criminal Code and their subsequent suspension. On 7 September 2012 the district investigative committee’s initial refusal to open a criminal case into the applicant’s handcuffing was revoked and an additional preliminary inquiry was ordered. 33. The applicant’s counsel requested the transfer of the criminal cases concerning the applicant’s ill-treatment to a new division at the Central Federal District investigative department, which had been created pursuant to order no. 20 of the chairman of the investigative committee to investigate crimes committed by police officers (see paragraph 43 below). 34. On 31 August 2012 the regional investigative committee replied to the applicant that firstly, it was not competent to take such a decision as, under Article 152 § 6 of the CCrP, a criminal case could only be transferred for investigation to a superior investigative authority by a reasoned decision of the head of that authority, and that secondly, order no. 20 did not provide for obligatory transfer of cases of this kind to the new investigative divisions. 35. On 28 September 2012 the central office of the investigative committee of the Russian Federation sent the applicant’s transfer request back to the regional investigative committee, which, in a letter of 6 November 2012, gave the applicant the same reply as before (see paragraph 34 above). 36. The applicant brought civil proceedings for damages sustained as a result of his unlawful arrest, detention at the police station, torture, handcuffing and unlawful questioning about his involvement in a criminal offence. He claimed RUB 1,200,000 in respect of non-pecuniary damage and RUB 1,435 in respect of pecuniary damage. Judge Sh. of the Leninskiy District Court of Voronezh held a hearing with the participation of the applicant, his lawyer and his interpreter, representatives of the Ministry of Finance, the Voronezh regional department of finance and budget policy and the Voronezh regional police department acting as a third party, and a prosecutor. 37. In its judgment of 29 November 2011 the District Court noted that the investigative measures conducted by the investigative committee after the opening of a criminal case had allowed it to establish the fact of the applicant’s unlawful arrest, handcuffing and detention during the period from 26 to 28 April 2009 in the offices of police officers of the criminal investigation unit (сотрудников уголовного розыска) of the Zheleznodorozhniy ROVD and in a cell for administrative detainees, as well as the fact that he had been subjected to physical violence with the aim of obtaining his confession to a murder and had had bodily injuries inflicted on him on the premises of the Zheleznodorozhniy ROVD (see paragraph 29 above). As a result of the physical and psychological violence, the applicant had confessed to a murder. He had not been detained as a suspect, nor charged with, or found guilty of, any crime. 38. On the basis of the preliminary investigation, which had established the elements of a crime under Article 286 § 3 (a) and (b) of the Criminal Code, the Zheleznodorozhniy District Court’s judgment of 29 July 2009 terminating the administrative proceedings against the applicant for lack of an administrative offence (see paragraph 19 above) and the evidence submitted by the applicant in the civil proceedings, the District Court found it established that the applicant had been subjected to the abovementioned unlawful acts by police officers, despite the failure to identify them all. Of those identified, the District Court noted M., G. and Ch., who had signed the records and the decision concerning the administrative offence allegedly committed by the applicant. The physical violence to which the applicant had been subjected had not been made necessary by his conduct, had diminished his human dignity and had as such been a violation of the law. The District Court awarded the applicant RUB 840,000 in respect of nonpecuniary damage and RUB 835 in respect of pecuniary damage, to be paid by the federal and regional treasuries, and rejected the remainder of his claims. 39. According to the internet site of the Voronezh Regional Court, on 22 March 2012 it examined the case following appeals lodged by the respondent authorities. No appeal against the Leninskiy District Court’s judgment had been lodged by the applicant, who was represented before the appeal court by his counsel. The Regional Court rejected the appeals and upheld the judgment. 40. A complaint about the applicant’s ill-treatment was also lodged with the Voronezh regional police department, which informed the applicant’s counsel on 23 July 2009 that police officer M. had been disciplined for his failure to identify an alleged witness to the applicant’s administrative offence. 41. Police officer S., identified by the applicant as one of those who had participated in his illtreatment (see paragraph 30 above), was promoted on 1 October 2010 as head of a district police department. | 1 |
test | 001-145084 | ENG | FRA | CHAMBER | 2,014 | CASE OF COUDERC AND HACHETTE FILIPACCHI ASSOCIÉS v. FRANCE | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information) | André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens | 5. The applicants are the publication director and the publisher respectively of the weekly magazine Paris Match. Ms Anne-Marie Couderc is a French national and was born in 1950. The company Hachette Filipacchi Associés, a legal entity incorporated under French law, has its registered office in Levallois-Perret. 6. On 3 May 2005 the British newspaper The Daily Mail published claims by Ms C., alleging that Albert Grimaldi, reigning Prince of Monaco since his father’s death on 6 April 2005, was the father of her son. The article referred to the forthcoming report in the Paris Match magazine and reproduced the main points of that report, together with three photographs, one of which showed the Prince holding the child in his arms. 7. On 3 May 2005, having been informed that an article was about to appear in Paris Match, Prince Albert served notice on the applicants to refrain from publishing the article in question. 8. In spite of the notice to refrain, the weekly magazine Paris Match, in its edition no. 2920 of 5 May 2005, 1,010,000 copies of which were printed, published an interview in which Ms C. presented her son A. as having been born from her intimate relationship with the Prince, who had succeeded his father on the previous 6 April. Publicised on the magazine’s cover under the headline “Albert of Monaco: A., the secret child” (“Albert de Monaco: A., l’enfant secret”) the ten-page article, entitled “A. is Albert’s son, says his mother”, included several photographs showing the Prince beside Ms C. or the child. Those of the Prince and the child had been taken by Ms C. with the Prince’s consent. Ms C., who had sole parental authority, had handed them over to Paris Match for publication. 9. The article, in which Ms C. replied to the questions put by a journalist, gave details about the circumstances in which she had met the Prince, their meetings, their intimate relationship and feelings, the way in which the Prince had reacted to the news of Ms C.’s pregnancy and how he had behaved on meeting the child. It noted that the boy had been born on 24 August 2003 and that the Prince had formally recognised him before a notary on 15 December 2003, but had requested that this fact should not be made public before the death of his own father, Prince Rainier III. 10. On 19 May 2005 the Prince brought proceedings against the applicants in the Nanterre tribunal de grande instance on the basis of Article 8 of the Convention and Articles 9 and 1382 of the Civil Code, seeking compensation for invasion of privacy and infringement of his right to protection of his image through the publication of the above-mentioned article on 5 May 2005. 11. On 29 June 2005 the court allowed the Prince’s claim, awarding him 50,000 euros in damages and ordering that details of the judgment be printed in a full-page feature on the magazine’s front page, on pain of a daily fine and at the publisher’s expense, under the headline “Court order made against Paris Match at the request of Prince Albert II of Monaco”. The judgment was immediately enforceable. 12. In allowing the Prince’s claims, the court noted, in particular, that from the first page onwards, the magazine disclosed the Prince’s paternity through the headline “Albert of Monaco: A., the secret child”, accompanied by a photograph showing him holding the child. It added that the ten-page article dealt with the issue of the Prince’s father-son relationship with the child, by means of questions which led the child’s mother to discuss her relationship with the Prince, the feelings of those involved, the Prince’s private life and reactions and the child’s recognition child before a notary. It added that numerous photographs, clearly taken in the context of the intimacy of the protagonists’ private life, had been deliberately chosen to illustrate and lend support to the disclosure; they were accompanied by the magazine’s own captions, which also referred to the Prince’s emotional life, analysing his conduct, his reactions to the young woman and the child, and speculating as to his feelings with regard to this secret child. The court considered that the entire article and the accompanying pictures came within the most intimate sphere of emotional and family life and that they were not apt to be the subject of any debate of general interest. It added that the claimant’s accession to the throne of the Principality of Monaco did not deprive him of the right to respect for his private life, nor of his right to protection of his own image in the face of mere rumours concerning the civil status of a child, which could not serve as a legitimate pretext for providing information to a prying and curious public about the lives of public figures, their feelings and their private conduct. In addition, the court held that a newspaper could not seriously claim to take the place of the courtroom, where the rights of children and women were lawfully defended. 13. The court concluded that the impugned article, which treated rumours in a sensational manner, both in its wording and through the completely irrelevant accompanying pictures, amounted to a serious breach of the claimant’s fundamental personality rights, the latter having specifically served notice by a bailiff on the publishing company to respect those rights on 3 May 2005. 14. The applicants appealed against that judgment and obtained a suspension of the judgment’s immediate enforceability. 15. On 6 July 2005 the Prince issued a statement in which he publicly recognised the child. The notarised document was entered in the register of births, deaths and marriages during the same period. 16. On 24 November 2005 the Versailles Court of Appeal gave judgment. 17. It noted that, through the interview with the child’s mother, the impugned article focused on revealing the birth of the child, who was presented as having been born from the intimate relationship she had conducted with the Prince since 1997. Furthermore, on the date of the article’s publication, both his birth and his father’s identity were unknown to the public. 18. The court of appeal emphasised that emotional, love or family life and issues of paternity and maternity came within the sphere of private life and were protected by Article 9 of the Civil Code and Article 8 of the Convention, which, according to the court, made no distinction between anonymous persons and public figures, whatever their civil, political or religious functions. It noted that the fact of the Prince’s fatherhood “had never been publicly recognised”, that the Monegasque Constitution made it impossible for a child born outside wedlock to accede to the throne and that the Prince had not given his consent to the disclosure of his possible paternity of the child, having on 3 May 2005 indicated to the applicant company his opposition to the publication of those facts. In consequence, it concluded that the applicant company had deliberately breached the provisions of Article 9 of the Civil Code and of Article 8 of the Convention. It considered that this offence could not be justified by the requirements of current affairs reporting, the legitimacy of the information or readers’ right to information, which did not cover the Prince’s secret paternity, even if he had become the reigning Prince of the Principality since his father’s death in April 2005. 19. The court of appeal further noted that the article did not merely disclose the existence of a “secret” child. It also contained numerous digressions derived from the confessions made by the child’s mother, concerning the circumstances of their meeting, the Prince’s feelings, his most intimate reactions in response to the news of the pregnancy and his attitude towards the child during private encounters. It considered that this could not be justified by the concomitant publication of these facts in a German magazine, or by the media impact caused by the content of the article, or by the fact that other publications had subsequently repeated these reports (which had become common knowledge through the fault of the publishing company), or by the alleged legitimacy of such a disclosure. The child had no official status which would have rendered his birth and the disclosure of the father’s identify a subject which the media, as part of their duty to provide information, were required to bring to the public’s attention. It found that although the photographs which accompanied the article and showed the respondent with the child had been taken by the latter’s mother and with the Prince’s consent, he had not consented to their publication, and that consequently she was at fault. 20. The court of appeal concluded that the publication in question had caused the Prince irreversible damage, in that the fact that he was the child’s father, which he had wished to keep secret, and which had remained so from the child’s birth until publication of the impugned article, had suddenly become public knowledge, against his wishes. The non-pecuniary damage thus caused justified the issuing of an order for publication, as supplementary compensation, which, in view of the nature of the breach and the seriousness of its consequences, was in no way disproportionate to the competing interests and, on the contrary, represented the most adequate redress in such circumstances. 21. The Versailles Court of Appeal upheld the contested judgement, in particular the payment of 50,000 euros in damages, and merely varied the conditions of the order for publication, which was no longer to appear under a headline and occupy one third of the front cover. Thus, the court ordered that in the first issue to be published in the week following service of the judgment, a box covering the lower third of the front page and containing the following text was to be printed on a white background, failing which the applicant company would be fined 15,000 euros per issue: “By a judgment of the Versailles Court of Appeal, upholding the judgment delivered by the Nanterre tribunal de grande instance, the company Hachette Filipacchi Associés in issue no. 2920, dated 5 May 2005, of the newspaper Paris Match, in an article entitled ‘Albert of Monaco: A. The secret child’ has been found to have invaded the privacy and infringed the right to his own image of Albert II of Monaco.” 22. This statement was published on the front cover of edition no. 2955 of the magazine, dated 5 January 2006, under the following editorial commentary: “Albert of Monaco: The truth is condemned. Paris Match disclosed the existence of his son, A. The courts have penalised freedom to impart information. The international press reacts to support us.” 23. The applicants appealed on points of law. In their further pleadings, they relied, in particular, on Article 10 of the Convention, given that the disclosure of the Prince’s paternity was a matter of public life and was justified by the requirements of imparting information, in view of the functions that he occupied as sovereign of a Principality with a hereditary monarchy. 24. By a judgment of 27 February 2007, the Court of Cassation dismissed the appeal on the grounds, inter alia, that: “... every person, whatever his rank, birth, property or present or future functions, is entitled to respect for his private life; the judgment notes on the one hand that, on the date on which the article was published, the child’s existence and his family relationship were unknown to the public, and that, on the other, the Principality’s Constitution rules out the possibility of his accession to the throne, since he was born outside wedlock, a situation that, moreover, the company did not allege to be a subject of debate in French or Monegasque society or of examination in the impugned publication, and, lastly, [that] the article contained multiple digressions on the circumstances in which Ms C. and Prince Albert met and about their relationship, the Prince’s reactions to the news of the pregnancy and his subsequent attitude towards the child; in the light of these findings and considerations, the court of appeal correctly noted the lack of any topical news item or any debate on a matter of general interest which justified its being reported at the time of the impugned publication on the grounds of legitimate imparting of information to the public; moreover, the publication of photographs of a person to illustrate subsequent content which amounted to an invasion of his privacy necessarily infringes his right to control of one’s own image.” 25. The interview with Ms C. and the disputed photographs were also published in the German weekly magazine Bunte of 4 May 2005. 26. Having brought urgent proceedings against this magazine in order to prevent any further publication, the Prince’s case was dismissed on 19 July 2005 by a judgment of the Freiburg Regional Court (Landgericht), upheld on 18 November 2005 by the Karlsruhe Court of Appeal (Oberlandesgericht). 27. The German courts placed the public’s right to information over the Prince’s interests in protection of his private life, having regard to his status as sovereign of a European principality. They described him as an “undeniable figure of contemporary society” and considered that the issue of a male descendent was of decisive importance in a constitutional hereditary monarchy, given that a change to the rule prohibiting a child born out of wedlock from claiming the Monegasque throne could not be ruled out in the future. 28. They considered that it was for the child’s mother, and not for the Prince, who had not recognised him, to decide whether the disclosure of the child’s existence fell within the protected private sphere. However, the Karlsruhe Court of Appeal ordered that a photograph showing the Prince in Ms C.’s company was not to be published. | 1 |
test | 001-157344 | ENG | SVK | CHAMBER | 2,015 | CASE OF JAVOR AND JAVOROVÁ v. SLOVAKIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicants were spouses born in 1952 and 1954 respectively. In 2013 the first applicant died, following which the second applicant expressed the wish to continue the application both in her own name and in the name of her late husband. The second applicant lives in Bratislava. 6. On 11 October 2002 the applicants lodged a criminal complaint with the Bratislava V District Office of Investigation alleging that an individual, A., had obtained an amount of money from them in return for the promise of arranging for the renovation of the flat in which they lived, that she had failed to keep that promise, and that she had not even been in the possession of the appropriate business licence for so doing. They considered that the criminal offence of fraud could have been committed in that connection, alleged that they had suffered the equivalent of some 7,300 euros worth of damage, and submitted that A. had refused to compensate them. 7. On 3 December 2002 the second applicant was questioned by an investigator. According to the transcript of the questioning, she inter alia referred to Article 43 of the 1961 Code of Criminal Procedure (Law 141/1961 Coll., as applicable at the relevant time – “the 1961 CCP” – see paragraph 19 below), submitted that she wished to join the proceedings as a civil party claiming damages, and proposed that the amount of the compensation be determined by a sworn expert. 8. On 23 January 2003 a criminal investigation was opened into the suspicion of the offence of fraud having been committed by one or more persons unknown in connection with the events mentioned above. 9. On 13 March 2003 the investigator appointed a sworn expert to establish the value of the pecuniary damage allegedly sustained by the applicants. The expert filed his report on 22 May 2003. 10. On 4 November 2004 A. was charged but the charges were quashed by the Bratislava V District Office of the Public Prosecution Service (“the PPS”) on 10 January 2005. The matter was thus remitted to the investigation stage. 11. Meanwhile, on 3 January 2005, the District Office of the PPS had informed the applicants that unjustified delay had been established in the proceedings, that it was due to the existing caseload and the staffing situation, and that the investigator’s attention had been brought to the need to accelerate the proceedings. 12. In a letter of 5 February 2005 the Bratislava Regional Office of the PPS responded to the applicants’ repeated complaint by accepting that there had been unjustified delay in the proceedings, which had been repeatedly indicated to the investigator. However, except for flagging up the delays to the investigator, notifying the investigator’s superior, and changing the investigator, the PPS had no means of ensuring acceleration of the proceedings. 13. On 21 January 2008 the District Office of the PPS responded to a further complaint from the applicants by again accepting that the investigation was in general vitiated by significant delays. This had repeatedly been indicated to the investigator’s superior, but had not produced the expected improvement. The case had not been reassigned to another investigator because this did not appear to be efficient in view of the staff shortage. However, the investigator had again been reminded of the delays and if no improvement was to be seen, a new investigator would be appointed. 14. On 14 January 2010 the investigator decided to terminate the proceedings. Referring to evidence from the second applicant, five witnesses and the expert, as well as to documentary evidence, he concluded that there was no criminal case to answer. This decision was upheld by the District Office of the PPS on 1 February 2010, following the applicants’ interlocutory appeal. No further appeal was available. 15. Meanwhile, on 6 October 2009, the applicants had lodged a complaint under Article 127 of the Constitution (Law no. 460/1992 Coll., as amended) with the Constitutional Court. They challenged the length of the proceedings on their third-party claim for damages attached to the above criminal proceedings and alleged a violation of the reasonable-time requirement under Article 6 § 1 of the Convention and its constitutional equivalent. 16. On 25 March 2010 the Constitutional Court declared the complaint inadmissible. As to the facts, it observed that the second applicant had attached their third-party claim for damages to the proceedings orally in the interview of 3 December 2002. As to the law, the Constitutional Court referred to the Court’s judgment in the case of Krumpel and Krumpelová v. Slovakia (no. 56195/00, 5 July 2005) and acknowledged that an aggrieved party (obeť) of a criminal offence who attached a third-party claim for damages (adhézny nárok) to the criminal proceedings was entitled to the guarantees of the civil limb of Article 6 of the Convention. However, referring to unspecified practice of the ordinary courts and to the nature of things, the Constitutional Court held that it was a condition for the aggrieved party to benefit from the guarantees in question to have made the claim against a specific person and that that person could be identified no earlier than when charges were brought against him or her. The Constitutional Court further referred to its previous case-law on the subject and held specifically that the aggrieved party claiming damages in the criminal proceedings only benefited from the right to a hearing within a reasonable time under Article 6 after a charge had been brought against a specific person. In that regard, the Constitutional Court noted that the charges against A. of 4 November 2004 had been quashed on 10 January 2005 (see paragraph 10 above). Therefore, at the time of the constitutional complaint, the applicants had no longer benefited from the constitutional guarantees relied on. The decision was served on 12 May 2010 and no appeal lay against it. | 1 |
test | 001-141859 | ENG | ESP | ADMISSIBILITY | 2,014 | GONZÁLEZ NÁJERA v. SPAIN | 4 | Inadmissible | Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Eduardo González Nájera, is a Spanish national who was born in 1974. He is currently serving a prison sentence in Logroño. He was represented before the Court by Mr E.J. Mateo Ayala and Mr C. Fuertes Iglesias, lawyers practising in Zaragoza. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. On 15 October 2008, within the space of three hours, the mother and the father of two different five-year-old girls separately contacted the Logroño National Police Headquarters on account of suspicions that their children had been sexually abused by the applicant, who was their psychomotor development teacher. They reported that their children had told them that the applicant had introduced his hand through their underwear and had touched their pubic region and their genitals while they were doing physical exercises. 4. On 16 October 2008 the applicant was arrested. In his statement to the police, in which he was assisted by counsel, the applicant denied the accusations. On that same day, parents of three other girls in the same school class reported similar facts to the police. 5. On 17 October 2008 the applicant was brought before an investigating judge. In his statement to the judge the applicant confirmed his statement to the police. He was released on remand subject to certain conditions. A non-molestation order was issued against him for the protection of the minors. The applicant appointed counsel and a legal representative for his defence and representation before the courts. 6. On 23 and 24 October 2008 the parents of two other under-age girls contacted the police to report incidents involving their children similar to those reported by the above-mentioned parents. Their daughters had told them that the applicant had touched their genitals. 7. On 27 October 2008 the investigating judge requested that the forensic psycho-social team in the Logroño courts perform an examination of the first five alleged under-age victims and of the applicant. On 20 November 2008 the examination of the minors was extended to include the last two girls whose parents had made a criminal complaint. The report on the minors was prepared by a forensic social worker and a forensic social psychologist. Their interviews with the minors were all video-recorded. The report on the applicant was prepared by a different forensic psychologist. 8. On 9 and 23 February 2009 the psychological reports were submitted in writing to the investigating judge. They were added to the case file. The applicant was provided with a copy of the report on the minors. 9. On 28 May 2009 the applicant made a request to the investigating judge that the forensic psycho-social team who had interviewed the minors submit all notes and documents which had been put at their disposal by the school personnel and cited in the report. The investigating judge requested those notes and documents from the members of the forensic psycho-social team with a view to providing the applicant with them. 10. On 24 July 2009 the forensic psycho-social team informed the investigating judge that they had not kept notes of the interviews. All information deemed important had been included in the final report and the notes destroyed. 11. On 11 September 2009 the investigating judge brought the investigative stage of the proceedings to a close and made the case file available to the parties with a view to holding a public hearing. The applicant did not appeal against that decision. The public prosecutor accused the applicant of six counts of child abuse. The private prosecutor accused him of seven counts of child abuse. In his statement of defence the applicant denied the charges. 12. On 5 October 2010 a public hearing took place before the Logroño criminal judge no. 2. The applicant was defended by counsel of his own choice. The applicant, the parents and the alleged victims’ two school tutors were questioned. The video-recording of the forensic experts’ interview with the minors was played in its entirety and the members of the forensic psycho-social team were questioned in relation to the report they had produced. They confirmed the contents of their report. The alleged under-age victims were not questioned at the hearing since none of the parties to the proceedings had so requested. 13. On 2 November 2010 the Logroño criminal judge no. 2 sentenced the applicant to twelve years’ imprisonment as a principal on six counts of sexual abuse of children. He was acquitted of one count of sexually abusing a child. The judge found that on 13 October 2008 the applicant, driven by an impulse to satisfy his lustful desires, had asked for volunteers to lead their classmates in the exercises; that he had selected multiple volunteers, including the six female victims, taking them away from the group in turn; that he had brought the under-age victims close to him and that whilst practising the exercises he had touched their genitals, concealing his actions behind the minors’ smocks. 14. In reaching this conclusion the judge relied mainly on the statements given by the under-age victims to the two members of the forensic psycho-social team. Those interviews had been video-recorded and played in their entirety at the hearing. The judge emphasised that two of the seven minors interviewed had repeated in a spontaneous fashion what they had previously said to their parents and that the other four had given their account of the facts after the experts had asked them whether anything particular had happened in the psychomotor development class on the specific date of the events. The answers provided by these six minors were consistent with regard to both the circumstantial evidence and the way in which the events had taken place. The seventh child who had been interviewed had not given an account of the events. 15. The judge further relied on the expert psycho-social report on the minors, the findings of which the two authors had confirmed at the hearing. The experts were available for cross-examination at the hearing. According to them, the reliability of the alleged victims’ accounts ranged from “indeterminate” to “most probably reliable” on a scale consisting of five different values of credibility: reliable, most probably reliable, indeterminate, probably not reliable and not reliable. The report contained a detailed assessment of each alleged victim’s statement, of its consistency with other statements, and of the reasons supporting their conclusions. The judge also relied on hearsay evidence given by some of the minors’ parents and the tutors of the two classes to which the minors concerned belonged. 16. The judge rejected the applicant’s submission that he should be acquitted for lack of direct evidence against him. The applicant had argued that he had not examined the minors either in the investigative stage of the proceedings or at the hearing and that therefore the minors’ pre-trial statements should not be admitted as valid evidence against him because he had not been present during their examination. 17. The judge conceded that the minors had not been cross-examined by the applicant or his counsel either at the investigative stage of the proceedings or at the hearing. This fact, however, did not prevent the minors’ statements being admitted as evidence against the applicant. The judge pointed out that neither of the parties to the proceedings had requested that the children attend the hearing as witnesses. She further referred to domestic case-law and to international instruments regulating children’s rights, stating that in sex-related criminal cases involving minors it was possible to dispense with their cross-examination in open court if it was deemed inappropriate having regard to the victims’ young age or its probably adverse psychological impact, and that their statements could be submitted at the hearing through other means. 18. In this connection, the judge emphasised that in the present case an expert report had been prepared by a forensic psycho-social team whose members had confirmed its contents in open court; that for the preparation of that report the experts had conducted a series of interviews with the minors; that the report had been passed on to the applicant during the investigative stage of the proceedings; and that those interviews had all been video-recorded and played at the trial. The applicant had been able to prepare his defence and challenge the truthfulness of the minors’ statements, submit evidence in his favour, and cast doubt on the accuracy or scientific value of the expert report. The fact that the full content of the interviews had not been transposed into the final expert report was irrelevant in so far as the video-recording of the interviews had been viewed in its entirety in open court. 19. The applicant appealed against the first-instance judgment before the La Rioja Audiencia Provincial. He invoked his rights to be presumed innocent and to a fair hearing. 20. On 2 May 2011 the La Rioja Audiencia Provincial upheld the applicant’s conviction. The appellate court emphasised that the applicant had requested the production of the evidence requested by the public and private prosecutors, who had asked that the interviews conducted with the minors be viewed and that the experts who had conducted those interviews be questioned in open court. The prosecutors had not requested that the minors be questioned and neither had the applicant. The court considered that in admitting those statements in evidence, the first-instance judge had struck a proper balance between the protection of the minors from secondary victimisation and the applicant’s right to defence. The applicant’s right had been respected in so far as the video-recording of the interviews had been played in its entirety at the hearing and the members of the psycho-social team had been available for cross-examination by the applicant. 21. The appellate court emphasised that the statements given by the six under-age victims were consistent and that they were corroborated by hearsay evidence, by the expert report and by the statements made at the hearing by the experts who had prepared the report. As regards the expert report, the court pointed out that the applicant had been provided with a copy immediately after it was produced and that he had not raised any objection to or submitted an appeal against the investigating judge’s decision to request its production and inclusion in the case file. The members of the psycho-social team had confirmed its contents at the hearing. The court praised the report for its completeness and accuracy and emphasised that its findings were based on a renowned scientific method called Statement Validity Assessment (SVA), of which the core component was a criteria-based content analysis (CBCA) of the credibility of accounts. It was also pointed out that the applicant had failed to submit any evidence that raised doubts as to the reliability of the report. 22. On 28 June 2011 the applicant lodged an amparo appeal with the Constitutional Court, invoking his constitutional rights to a fair hearing and to be presumed innocent. He argued that he could not be blamed for not having requested the cross-examination of the minors at the hearing in so far as it was incumbent on the prosecution to prove him guilty and therefore to request the production at the hearing of all the evidence against him. This failure on the part of the prosecutors had prevented him from cross-examining the alleged victims, thereby breaching his right to a fair hearing. The applicant further argued that the only direct evidence on the basis of which the courts had found him guilty consisted of the statements given by the minors to the experts at the investigative stage of the proceedings but contended that those statements should have been excluded from the evidential material as they had been obtained in breach of his right to defence. The interviews with the minors had been conducted without his being present. The exclusion of that evidence would result in his acquittal of all the alleged offences for lack of sufficient evidence to override his right to be presumed innocent. The evidence against him was in any case insufficient to prove him guilty. 23. On 11 March 2013 the Constitutional Court dismissed the applicant’s amparo appeal. It stated that the first issue raised by the applicant concerned the potential restrictions which could be placed on the right to defence of a person charged with sexual offences vis-à-vis his alleged victims, taking into account the undesirable emotional and psychological impact that cross-examination in open court might have on the latter. 24. The Constitutional Court reiterated that as a general rule defendants should be afforded the opportunity to cross-examine their victims in open court. However, this rule allowed for certain exceptions. Making copious citations from the Court’s case-law, the Constitutional Court referred to the special nature of criminal proceedings concerning sexual offences, which often represented an ordeal for the victims, and to the fact that this aspect was even more clearly apparent in cases involving minors. The courts were allowed to take measures for the purpose of protecting under-age victims, including the possibility of dispensing with their cross-examination. This measure should nonetheless be reconciled with the adequate and effective exercise of the rights of the defence. Courts were thus required to implement safeguards compensating defendants for the disadvantage of having been prevented from cross-examining the direct witnesses to the offences in open court. 25. The Constitutional Court went on to state that in sex-related offences the only direct evidence was frequently the victim’s own statement, the other evidence normally being hearsay evidence or expert evidence assessing the credibility of the victim’s account. In this connection, the legal debate usually turned on the legal safeguards surrounding the examination of the minor and the manner in which his or her statements could be used as evidence at the hearing. The Constitutional Court stated that in cases such as the instant one the constitutional standard of review coincided with the standard established by the Court in the case of A.S. v. Finland (no. 40156/07, § 56, 28 September 2010), according to which: “the suspected person shall be informed of the hearing of the child, he or she shall be given an opportunity to observe that hearing, either as it is being conducted or later from an audiovisual recording, and to have questions put to the child, either directly or indirectly, in the course of the first hearing or on a later occasion.” 26. Turning to the instant case, the Constitutional Court stated that the under-age girls had not been questioned by the police or the public prosecutor or the investigating judge. They had been examined by a social worker and a psychologist from the forensic psycho-social team from whom the investigating judge had commissioned a report. The relevant legislation provided for that possibility, which had been accepted as a constitutionally valid option by the Constitutional Court in a previous judgment. The court emphasised that ‒ given the young age of the minors, all of whom were below the age of six at the material time ‒ their examination by experts was advisable not only in order to prevent additional unnecessary damage but also to reinforce the reliability of their statements. 27. The Constitutional Court stated that the investigating judge had made the psycho-social report available to the parties, including the applicant’s counsel, shortly after its production by the experts. However, the applicant had limited himself to requesting some additional documents (see paragraph 9 above) three months later. He had not requested that a fresh examination of the minors be conducted in his presence. The legislation by no means prevented such a course of action but the applicant had not availed himself of that possibility. In his subsequent statement of defence, the applicant had not requested the cross-examination of the alleged victims in open court, which reinforced the inference that his rights had been duly respected at the pre-trial stage of the proceedings. The applicant’s failure to request the victims’ cross-examination meant that the judicial authorities dealing with his case did not have to decide whether or not the applicant should have been given the opportunity to have his alleged victims cross-examined. In fact, the domestic authorities had not obstructed or in any way prevented such an examination since they had not been confronted with the issue to begin with. 28. In the light of the foregoing, the Constitutional Court considered that the applicant’s right to adversarial proceedings had not been restricted to an unacceptable extent. Its finding might have been different had the judicial authorities prevented the applicant from examining the under-age victims despite his having so requested (the Constitutional Court cited S.N. v. Sweden, no. 34209/96, § 49-50, ECHR 2002V; B. v. Finland, no. 17122/02, § 44, 24 April 2007; and Accardi and Others v. Italy (dec.), no. 30598/02, ECHR 2005II) or if the applicant had not been able to challenge effectively the examination conducted by the experts owing to a lack of sufficient information or some legal impediment. 29. As regards the assessment of the evidence conducted by the judicial authorities, the Constitutional Court emphasised from the outset that its role was not that of a court of third instance and that in cases such as the instant one it would intervene only if it could not be concluded ‒ or could be concluded only arbitrarily ‒ from the evidential material in the case file, which should have been obtained with due respect for the defendant’s fundamental rights, that the defendant was guilty. 30. In this connection, the Constitutional Court stated that the only direct evidence on which the trial courts had based the applicant’s conviction comprised the incriminating statements given by the minors at the investigative stage of the proceedings, the video-recording of which had been viewed in its entirety at the hearing. The admission of those statements as evidence had been lawful and, from a constitutional standpoint, they could be considered sufficient evidence to override the applicant’s right to be presumed innocent. The hearsay evidence provided by parents and experts had served exclusively as corroborating evidence. This complaint was dismissed. 31. The Constitutional Court’s judgment was served on 21 March 2013. 32. Article 24 of the Constitution provides: “1. Every person has the right to the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended. 2. Likewise, every person has the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against him or her; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to his or her defence; to refrain from self-incriminating statements; not to declare himself or herself guilty; and to be presumed innocent. The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences.” 33. The relevant provisions of the Code of Criminal Procedure are as follows: “... Adult witnesses shall take an oath or promise to state all they know in reply to the questions put to them, the judge being obliged to inform them in clear and understandable language of their duty to tell the truth and of the possibility of their being held liable for false statements in a criminal case. Minors may give a statement to experts, always in the presence of the public prosecutor. The person exercising parental responsibilities, protection or guardianship over the minor may be present unless he or she is an accused party, or if the judge, as an exceptional measure and through a reasoned decision, decides otherwise. The judge may instruct that the statement be video-recorded.” “... Statements from under-age witnesses shall be delivered in a manner that avoids their being visually confronted with the accused. The use of appropriate technological mechanisms shall be allowed for that purpose.” “... Statements from under-age witnesses shall be delivered in a manner that avoids their being visually confronted with the accused. The use of appropriate technological mechanisms shall be allowed for that purpose.” “The only evidence that shall be produced [at the hearing] is that proposed by the parties; the only witnesses who shall be examined are those included in the lists submitted [by the parties].” “In the event that any evidence cannot be produced during the hearing, on account of circumstances outside the parties’ control, a record of the relevant investigation shall be read out if this is so requested by any of the parties.” 34. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, which entered into force in respect of Spain on 1 December 2010, provides in Chapter VII, concerning investigation, prosecution and procedural law: “1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child. 2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate ... 4. Each Party shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.” “1. Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by ... g. ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided, unless the competent authorities establish otherwise in the best interests of the child or when the investigations or proceedings require such contact.” “1. Each Party shall take the necessary legislative or other measures to ensure that: a. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities; b. interviews with the child take place, where necessary, in premises designed or adapted for this purpose; c. interviews with the child are carried out by professionals trained for this purpose; d. the same persons, if possible and where appropriate, conduct all interviews with the child; e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings ... 2. Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings, according to the rules provided by its internal law.” “2. Each Party shall take the necessary legislative or other measures to ensure, according to the rules provided by its internal law, that: a. the judge may order the hearing to take place without the presence of the public; b. the victim may be heard in the courtroom without being present, notably through the use of appropriate communication technologies.” 35. The Framework Decision of 15 March 2001 of the Council of the European Union on the standing of victims in criminal proceedings (2001/220/JHA) provided: “2. Each Member State shall ensure that victims who are particularly vulnerable can benefit from specific treatment best suited to their circumstances.” “Each Member State shall safeguard the possibility for victims to be heard during proceedings and to supply evidence. Each Member State shall take appropriate measures to ensure that its authorities question victims only insofar as necessary for the purpose of criminal proceedings.” “4. Each Member State shall ensure that, where there is a need to protect victims - particularly those most vulnerable - from the effects of giving evidence in open court, victims may, by decision taken by the court, be entitled to testify in a manner which will enable this objective to be achieved, by any appropriate means compatible with its basic legal principles.” 36. The Directive of 25 October 2012 of the European Parliament and of the Council (2012/29/EU) establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, provides: “(66) This Directive respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, it seeks to promote the right to dignity, life, physical and mental integrity, liberty and security, respect for private and family life, the right to property, the principle of non-discrimination, the principle of equality between women and men, the rights of the child, the elderly and persons with disabilities, and the right to a fair trial.” “Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations: ... (b) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation; ...” “1. Member States shall ensure that victims receive a timely and individual assessment, in accordance with national procedures, to identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedings, as provided for under Articles 23 and 24, due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation ... 4. For the purposes of this Directive, child victims shall be presumed to have specific protection needs due to their vulnerability to secondary and repeat victimisation, to intimidation and to retaliation. To determine whether and to what extent they would benefit from special measures as provided for under Articles 23 and 24, child victims shall be subject to an individual assessment as provided for in paragraph 1 of this Article.” “1. Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 22(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings. 2. The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1): (a) interviews with the victim being carried out in premises designed or adapted for that purpose; (b) interviews with the victim being carried out by or through professionals trained for that purpose; (c) all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice; (d) all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced. 3. The following measures shall be available for victims with specific protection needs identified in accordance with Article 22(1) during court proceedings: (a) measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology; (b) measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology; (c) measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and (d) measures allowing a hearing to take place without the presence of the public.” “1. In addition to the measures provided for in Article 23, Member States shall ensure that where the victim is a child: (a) in criminal investigations, all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings;” 37. In a judgment of 16 June 2005 (Case C-105/03 Pupino [2005] ECRI5285) the Court of Justice of the European Union held: “59. The Framework Decision must thus be interpreted in such a way that fundamental rights, including in particular the right to a fair trial as set out in Article 6 of the Convention and interpreted by the European Court of Human Rights, are respected (...) 61. In the light of all the above considerations, the answer to the question must be that Articles 2, 3 and 8(4) of the Framework Decision must be interpreted as meaning that the national court must be able to authorise young children, who, as in this case, claim to have been victims of maltreatment, to give their testimony in accordance with arrangements allowing those children to be guaranteed an appropriate level of protection, for example outside the trial and before it takes place. The national court is required to take into consideration all the rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the Framework Decision.” | 0 |
test | 001-185212 | ENG | RUS | COMMITTEE | 2,018 | CASE OF RADZHABOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) | 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 inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-156504 | ENG | MLT | CHAMBER | 2,015 | CASE OF ZAMMIT AND ATTARD CASSAR v. MALTA | 3 | Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano | 5. The applicants were born in 1943 and 1957 and live in Zabbar and Birkirkara respectively. 6. The applicants own, in equal shares, a property built in the 1960s in Zabbar and which is known today as the Cressi-Sub Store. According to the applicants, the property is used as a storage facility for a nearby shop. At first, this was not contested by the Government, but at a later stage in the proceedings, they submitted that the property had been abandoned and was not in use. 7. The applicants inherited the property from their uncle on 7 October 2000. At the time, the property was already leased to E., a company registered in Malta, for 185 Maltese lira (MTL) (equivalent to 431 euros (EUR)) every six months, that is, EUR 862 a year on the basis of a voluntary lease agreement. Although there was no evidence of the parties’ ever having signed a lease agreement, it appears that the lease commenced in 1971. Rent is payable every six months in advance, and in accordance with the law the lease is renewed automatically every six months. 8. In such circumstances, the Reletting of Urban Property (Regulation) Ordinance (hereinafter “the Ordinance”), Chapter 69 of the Laws of Malta, (see Relevant domestic law below) provides that the eviction of a tenant or a change in the conditions of a lease requires the authorisation of the Rent Regulation Board (“the RRB”). 9. In 2002, the applicants undertook a valuation of the property with a view to making a request for an increase in the rent. The architect who carried out the valuation indicated that the current rental value of the property was EUR 7,000 a year. 10. In accordance with legal requirements (see Relevant domestic law below), on 22 April 2002, the applicants informed E. by means of a judicial letter that they intended to raise the rent to EUR 7,000 a year with effect from 1 July 2002. 11. By means of a judicial letter dated 17 May 2002, E. replied that it did not agree to the request. It failed, however, to apply to the RRB for the rejection of such an increase or for new conditions, as required by law (see Article 14 of the Ordinance). 12. As from the second term of 2002 the applicants stopped accepting rent for fear it would prejudice their claim. In consequence, company E. continued to pay the rent by means of a schedule of deposit filed with the domestic courts. 13. On 27 March 2003 the applicants brought an action before the Civil Court, requesting it to impose on E. an obligatory time-limit within which to make an application to the RRB. They considered that in default of such action by E., the increase in rent requested should be deemed to have been agreed. E. having eventually filed the said application (see below), the applicants’ action was dismissed. 14. On 31 May 2004 E. applied to the RRB, requesting it to dismiss the claim for the increase in rent. The applicants responded, arguing that the rent should reflect market values. 15. In a report dated September 2006 two court-appointed architects concluded that the rent of EUR 862 was already more than 40% over and above the rent level at which the premises were or could have been leased before 4 August 1914 (Article 4 (1) (b) of the Ordinance, see Relevant domestic law below). It followed that in the light of Article 4 (1) (b) of the Ordinance, the increase in rent could not be recommended. 16. By a note filed on 30 November 2006 the applicants submitted that an unfavourable decision would breach their rights under the Convention. 17. On 9 January 2008 the RRB dismissed the applicants’ request on the basis of the opinion of the two court-appointed architects. It noted that it had no jurisdiction to determine the human rights issue raised by the applicants, who had not made a request for a constitutional referral. 18. On 25 January 2008 the applicants appealed. They argued that the RRB’s decision had breached their rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. They requested the court to refer the matter to the constitutional jurisdictions. 19. By decree of 13 May 2008 the Court of Appeal referred the matter to the constitutional jurisdictions. Following the constitutional proceedings (described below) and the applicants’ lodging of an application with the Court, on 4 October 2013 the Court of Appeal adjourned the case sine die, pending the outcome of the present proceedings. 20. By a judgment of 7 July 2010 the Civil Court (First Hall), in its constitutional jurisdiction, upheld the applicants’ claim, holding that their rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention had been breached. Referring to the Court’s case-law, it considered that the applicants had not had an effective remedy, in so far as they had been constrained by the capping of rent levels set out in the law. In relation to their property rights, it upheld the finding of a violation, on the basis of the reasoning in the case of Amato Gauci v. Malta (no. 47045/06, § 63, 15 September 2009) – namely the low level of the rent, the applicants’ state of uncertainty as to the possibility of recovery of the property, the lack of procedural safeguards, and the rise in the standard of living in Malta over the past decades – coupled with the applicants’ argument that the interference had been disproportionate, as it had caused them to bear an excessive burden, given that the property was used for a commercial purpose. Indeed, the lessor could have used other property it had owned, but had preferred to sell that other property for EUR 350,000 and to continue to rent from the applicants at a low rate. 21. On appeal, by a judgment of 5 July 2011, the Constitutional Court reversed the first-instance judgment. It considered that although when the parties had concluded the contract they had been aware of the law as it stood (and had stood for a number of years), they had nevertheless opted to enter into that contract. Therefore, they and their legal successors could not now complain of a breach of their human rights. Indeed, the original lease agreement had neither stipulated a low level of rent nor envisaged future increases in rent. Given that the original owner had opted to lease the premises, knowing the legal consequences attached, the impact on their property rights had been neither unforeseen nor arbitrary; nor had there been a state of legal uncertainty. Moreover, recent amendments to the law had improved their position from 2010 onwards (Act X of 2009; see Article 1531D of the Civil Code below). 22. As mentioned above (see paragraph 12) as soon as they inherited the property, the applicants refused to accept the rent to avoid prejudicing their legal position. In consequence, it transpires from the documents provided to the Court that from 2002 to 2010 the tenants deposited in court by means of schedules of deposit the sum of EUR 431 every six months (EUR 862 annually). For the subsequent years those deposits amounted to EUR 496 and EUR 570 in 2011, and EUR 656 every six months until 2013. 23. In 1995 Article 46 of the Ordinance was amended to stipulate that the impugned restrictions would not apply to leases entered into after 1 June 1995. 24. While the above-mentioned constitutional proceedings were pending, a new law was enacted, stipulating that with effect from 1 January 2010 the rent applicable to commercial leases was to be increased by 15% per year, and that an increase at that level should also take place for the years 2011, 2012 and 2013 (Section 1531 D of the Civil Code). 25. Thus the amounts of rent payable to the applicants in those years were as follows: in 2010 EUR 990; in 2011 EUR 1,138; in 2012 EUR 1,309; and in 2013 EUR 1,505. For the years 2014 onwards the rent would increase by 5% a year. | 1 |
test | 001-140402 | ENG | MKD | CHAMBER | 2,014 | CASE OF VIKENTIJEVIK v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 5. The applicant was born in 1941 and lives in Skopje. 6. On 27 September 1945 V.D.M., the applicant’s late grandfather, together with other individuals, A.J., T.K. and L.L., members of the Executive Board of company T. (“the company”), were convicted of offences against the people and the State since they had put the company T. at the disposal of the enemy forces (during the Second World War). They were all sentenced to a suspended prison term with forced labour. The court also ordered full confiscation of the company’s property. 7. On 9 January 1946 the then Skopje People’s District Court confiscated the company’s immovable property (including residential apartments for workers (работнички станови)) and various items of movable property, which were specified in detail in the decision (“the confiscation order”). The total surface area of the confiscated buildings was 3,496 square metres. Some 60,549 sq. m of land was also subject to confiscation. The confiscated property was to be transferred to the State. The confiscation order referred to V.D.M., A.J., T.K. and L.L., as “convicted shareholders” who had actual possession (фактичка сопственост) of the company. 8. On 29 December 1995 the company decided to restructure itself in accordance with the Law for Reorganisation of Companies with Business Losses (“the Company Restructuring (Business Losses) Act”). 9. On the basis of that decision and at the request of the applicant, who was seeking that the property be retained for restitution, on 18 October 1996 the company entered into a contract (“the 1996 contract”) with the State, represented by the Privatisation Agency, transferring to it the title to specific named buildings (which did not include the residential apartments), the total surface area of which was 1,240 sq. m. It further transferred into the State’s possession preference shares (приоритетни акции), the value of which was 2,158,831 German marks (DEM) (“the shares”). 10. Thereafter, on 28 December 1999 the Skopje Court of First Instance (“the first-instance court”), on the applicant’s request, overturned the 1945 judgment in respect of his late grandfather concerning the confiscation of the company’s property. This judgment became final on 31 January 2000. 11. In a judgment of 6 July 2000, which became final on 10 July 2000, the first-instance court declared the applicant heir to the right to claim restitution (наследник на правото на денационализација) in respect of the property of his late grandfather (V.D.M.). Referring to the 1945 judgment, the confiscation order and the judgment of December 1999 (see paragraphs 6, 7 and 10 above), the inheritance order also concerned the applicant’s right to claim “restoration of possession and payment of compensation” in respect of the company’s immovable and movable property. 12. On 14 August 2000 the applicant instituted restitution proceedings. The parties did not submit a copy of the restitution claim. 13. On 13 September 2000 the Ministry of Finance, represented by two officials, drew up a report concerning an on-site inspection carried out on 12 September 2000. According to the report, which was typed on a computer, V.D.M., A.J., T.K. and L.L. had been the company’s shareholders. The land was in the company’s possession. In 1959 the land in question was divided into two plots, which included buildings with a total surface area of 3,377 sq. m. The entry in the new Land Register indicated that the total surface area of the buildings constructed on the land was 34,617 sq. m. The report further stated that only some of the buildings specified in the confiscation order, including the residential apartments, were still on the land. 14. On 15 September 2000 the Restitution Commission of the Ministry of Finance accepted the applicant’s restitution claim and decided 1) to restore to his possession the buildings specified in the 1996 contract (see paragraph 9 above) and the residential apartments and adjacent buildings (694 sq. m), together with the land underneath, as well as the land described as a courtyard (двор), a total surface area of 60,549 sq. m; 2) to transfer into his possession the preference shares specified in the 1996 contract as compensation for the movable property of the company; and 3) to transfer into his possession State-owned shares in company P. as compensation (the equivalent to approximately 51,400 euros (EUR) for land underneath) for other objects (1,561 sq. m). As stated in the order, the Restitution Commission, assisted by an expert, had carried out an on-site inspection and established that the total surface area of all confiscated buildings at the time of confiscation, was 3,496 sq. m. 15. The restitution order indicates that the applicant’s restitution claim, together with the complete case file, was communicated to the Solicitor General (Јавен Правобранител) (see paragraph 48 below) , who submitted in reply that “there was no statutory provision requiring him or her to comment on the matter” (не бил законски обврзан да се изјасни по барањето). As is evident from a letter of 21 March 2003 from the Ministry of Finance included in the case file, the restitution order was served on the Solicitor General. No appeal having been submitted, the restitution order became final on 13 October 2000. 16. On 13 February 2001 the Restitution Commission rectified the restitution order under sub-heading 3), stating that the applicant would receive State-owned shares in company Z.L. (“the rectifying decision”). 17. Between 21 February and 27 March 2001, the State authorities 1) transferred to the applicant title to the company’s preference shares (which represented 7.84% of the company’s share capital (основна главнина)), and buildings specified in the 1996 contract (on the basis of two separate contracts concluded between the Privatisation Agency and the applicant), and 2) registered him as the owner of the buildings and the land. According to an extract from the land registry dated 25 October 2006, the applicant had title to 62,755 sq. m. The applicant was recorded in the company’s shareholder book (акционерска книга), as well as in the Central Securities Depositary (Централен Депозитар за хартии од вредност), as a shareholder in company T. and company I.G. (apparently instead of company Z.L.) The Privatisation Agency requested that company T. allow the applicant to obtain actual possession (владение) of the immovable property. 18. On 29 November 2003 an expert commission of the Ministry of Finance carried out an on-site inspection and established that the land in question could not be returned to the applicant, since it served the existing buildings (company property and the residential apartments). 19. On 8 December 2003 the applicant requested that the Ministry of Finance enforce the restitution order and asked that the company transfer the “land and buildings” into his actual possession. On 15 January 2004 he repeated his request for enforcement. On 22 April 2004 the Ombudsman also recommended that the Ministry of Finance enforce the restitution order and transfer the land into the applicant’s actual possession. 20. On 21 January 2004 a Coordinating Commission in the Ministry of Finance, having been approached by a group of citizens residing in the apartments located on the land in question, noted that there had been “certain irregularities” in the restitution proceedings, and requested that the Government Appeal Commission (“the Commission”) review the restitution order under the Administrative Proceedings Act. On 22 October 2004 the Commission found no grounds to rescind the restitution order within its powers of supervisory review (укинување по право на надзор). It also stated that the Coordinating Commission should submit the case file to the Restitution Commission, which had the authority to quash the restitution order of its own motion provided the statutory requirements had been met. 21. On 1 December 2004 the Solicitor General requested, under section 267 § 1 (3) and (5) of the Administrative Proceedings Act (see paragraph 44 below), that the Commission declare the restitution order and the rectifying decision null and void (барање за огласување ништовно). He submitted that the applicant had been awarded full restitution of the entire property of the company, despite the fact that, as specified in the confiscation order of 1946, the company had been jointly owned by several persons. Furthermore, the buildings restored to the applicant were not the same in terms of surface area and description as the buildings confiscated in 1946. The current value of the land now by far exceeded its value at the time of confiscation. Furthermore, the land had been developed in the meantime, and buildings with a total surface area of 34.064 sq. m had been constructed. Lastly, he maintained that the preference shares transferred into the applicant’s possession on the basis of the 1996 contract represented over half the value of the entire movable property of the company. 22. On 26 April 2006 the Commission granted the request, quashed the restitution order and the rectifying decision, and remitted the case for re-examination. It ordered the Land Registry and the Central Securities Depositary to amend their records accordingly. It held that the Solicitor General, in what was a manifest omission (очигледен пропуст), had not appealed against the impugned decisions in the ordinary proceedings “despite their apparent unlawfulness”. Referring to the confiscation order of 1946, the Commission stated: “... V.D.M., A.J., T.K. and L.L. were the former owners of the confiscated property of [the company]. ... it is not in doubt that [the applicant] is the heir only of V.D.M., thus of only a notional one-quarter of the confiscated property ... This is sufficient (for the conclusion) that the first-instance commission violated the Restitution Act at the expense of the State, and that it follows that the [restitution order] is invalid. As is evident from the expert report of 13 September 2000 (see paragraph 13 above), which was drawn up only two days before the restitution order, the confiscated property was not at all identical to the existing property, specifically the buildings confiscated in 1946, the total surface area of which was 3,496 sq. m, were supporting objects, while the current buildings, with a surface area of 34,617 sq. m, are modern and solid constructions. Furthermore, the confiscated buildings no longer exist, but completely different buildings, which are ten times bigger, were constructed instead. That was confirmed in the report of 29 November 2003 (see paragraph 18 above). Furthermore, the land (60,549 sq. m) could not be the subject of restitution and it could not be returned under section 28 of the Restitution Act, since buildings (34,617 sq. m) belonging to the company T. had been constructed on that land. It is developed construction land with complete infrastructure, which serves the existing property ... Lastly, the first-instance body wrongly applied sections 33, 34, 35 and 36 of the Restitution Act when it transferred into [the applicant’s] sole possession the entire package of reserved preference shares of all four former owners, actually their heirs, instead of only a notional one-quarter. As a result, the State sustained damages. Accordingly, [the restitution order] cannot be enforced, as specified under section 267 § 1 (3) of the Administrative Proceedings Act ...” 23. On 22 June 2006 the applicant lodged an administrative-dispute claim (тужба за управен спор) with the Supreme Court, in which he argued that the restitution order and the rectifying decision had already been enforced. They had been rendered in proceedings in which the Solicitor General had failed to lodge an ordinary appeal, although entitled to do so. The quashing of the order had been based on alleged errors in the facts, which could not serve as a ground for the extraordinary remedy used in his case. Furthermore, the Solicitor General had not been entitled to intervene in the proceedings in order to protect the interests of third parties. The applicant argued that the Commission, by quashing the relevant decisions over five years after they had been adopted, had violated the principle of legal certainty and irrevocability of final decisions. Lastly, he complained that the expert report of 13 September 2000, to which the Commission referred in the impugned decision, carried no stamp; it had not been drawn up on the form in use at the time; and the Restitution Commission had not quoted it in the restitution order of 15 September 2000. That raised doubts about the reliability of that document. 24. On 16 March 2007 the Supreme Court dismissed the applicant’s appeal. It stated that section 267 § 1 (3) of the Administrative Proceedings Act concerned both the factual (фактичка) and legal (правна) impossibility of enforcement. The restitution order and the rectifying decision were contrary to sections 13, 21 § 1 (1), 28 § 2, 33 and 36 of the Restitution Act (see paragraphs 31-38 below), and were accordingly legally unenforceable. The court further stated: “... According to [the 1945 judgment], the confiscation concerned the convicted shareholders T.K., A.J. and L.L., who were (in addition to V.D.M.) the owners of [company T.]. Having regard to section 13 of the Restitution Act, [the applicant] applied as heir to the property of his legal predecessor, V.D.M. Consequently, he could inherit only V.D.M.’s share and not the entire property of [the company]. Having regard to the transcript of the hearing of 13 September 2000 ... the court finds that there has been a violation of section 21 of the Restitution Act, since it has not been established whether the value of the confiscated property has increased. ... there has been a violation of section 28 § 1 (2) of the Restitution Act, since land which has been developed and built upon (60,549 sq. m), as established on 29 November 2003 by a commission, has been restored [on the basis of the restitution order] to the possession of the applicant. On the basis of the material in the case file it has been established beyond any doubt that the property subject to restitution had previously been owned by four persons, who were the shareholders. Consequently, there has been a violation of sections 33 and 36 of the Restitution Act, since the entire package of reserved preference shares for all four former shareholders was transferred to [the applicant’s] sole possession ... ... In the present case, the court underlines once more that there has been a violation of the imperative provisions of the Restitution Act, which made the enforcement of the final restitution order legally impossible, as specified under section 267 § 1 (3) of the Administrative Proceedings Act. The court has examined [the applicant’s] allegations that there was a violation of the fundamental principle of finality of decisions in administrative proceedings, as well as that the impugned decision contained no reasons that could fall within the ambit of section 267 (of the Administrative Proceedings Act), but it considers them ill-founded. The Administrative Proceedings Act provides for the extraordinary remedy of declaring a decision null and void (section 267). [The Commission] is the competent body to decide, and the (impugned) decision clearly states that the decision was given under section 267 § 1 (3) of the Administrative Proceedings Act. Furthermore, the decision contains adequate reasoning.” 25. This judgment was served on the applicant on 11 May 2007. 26. On 3 July 2007 the public prosecutor found that there were no grounds to institute legality review proceedings (постапка по барање за заштита на законитоста) against the Supreme Court’s judgment. 27. On the basis of a request by the Restitution Commission, on 26 May 2008 an expert commission of the Ministry of Finance carried out an on-site inspection and found that construction of collective residential buildings had been planned under the town plan of May 2008 on the land in question. It further established that the part of the land on which roads, car parks and green space were planned could not be returned (не може да биде предмет на реално враќање). Over 42,600 sq. m of the land, the part on which construction of collective residential buildings was planned, could be restored. 28. On 7 December 2010 the Restitution Commission suspended the proceedings (прекинува) and instructed the applicant to institute, within fifteen days of service of that decision, separate civil proceedings in order to establish, as a preliminary question (претходно прашање), the amount of the share of V.D.M., his legal predecessor, in the company’s property. In the reasoning, it noted that on 9 May 2008 the applicant had submitted written evidence that T.K., A.J. and L.L. were not shareholders in the company. It also observed that five other requests for restitution of the company’s property had been submitted for consideration between 7 May 2003 and 15 May 2008. The claimants in those cases had provided documents indicating that their predecessors had been shareholders, dividing between them the entire property of the company. 29. The Government stated that most of the restitution claims concerning the property at issue which had been submitted by third parties had been dismissed. 30. On 22 December 2010 the applicant brought a civil action against T.K., A.J. and L.L., whose whereabouts were unknown, in which he sought to have the first-instance court declare V.D.M., his legal predecessor, the sole shareholder of the company. Those proceedings are still pending before the first-instance court. | 0 |
test | 001-177079 | ENG | AUT | CHAMBER | 2,017 | CASE OF SEVERE v. AUSTRIA | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer | 6. The applicant was born in 1967 and lives in Rochefort, France. 7. The applicant was in a relationship with C.B., a French and Austrian national. Their sons (twins), also of French and Austrian nationality, were born on 3 March 2006. The family had been living together in Rochefort and the applicant and C.B. had joint custody of the children under French law. 8. On 10 December 2008 the applicant and C.B. had a dispute, which resulted in C.B. leaving their home with the two children. She claimed that she would return two days later. 9. On 13 December 2008, instead of coming back home, C.B. went with the children to stay with her parents in Golfe-Juan in the south of France. She informed the police of this fact. 10. On 17 December 2008 C.B. notified the police in Fréjus that she intended to move to Vienna, where she had already taken her main residence. 11. On 18 December 2008, however, she notified the police in Rochefort that she was living with her parents and that her lawyer would inform the applicant of her whereabouts. Nonetheless, the same day C.B., her mother and the children left France and travelled to Vienna. 12. On 7 January 2009 the family judge at the Rochefort tribunal de grande instance, after an oral hearing on 31 December 2008, issued an interim injunction at the applicant’s request, ruling that he and C.B. had joint custody, but that the children’s main residence was with their father. The court also proceeded to determine C.B.’s contact rights. It noted that C.B., being absent from the oral hearing, had been duly summoned to attend. 13. On 16 March 2010 the Rochefort investigating judge issued an arrest warrant against C.B. and on 11 June 2010 the Rochefort tribunal de grande instance issued a European Arrest Warrant (EAW) against her for unlawful removal of the children from France. 14. On 5 July 2011 the Poitiers Court of Appeal upheld the interim injunction issued by the Rochefort tribunal de grande instance on 7 January 2009 on the above-mentioned points (see paragraph 12 above). 15. On 26 January 2012 the competent public prosecutor decided not to institute a preliminary investigation against the applicant, who had been accused of sexual assault by C.B. in a complaint lodged with the French authorities on 15 December 2011. 16. On 25 April 2013 the La Rochelle tribunal correctionnel convicted C.B. of child abduction and sentenced her to one year’s imprisonment. In addition, she was ordered to pay the applicant 25,000 euros (EUR) in damages. C.B. subsequently lodged an appeal against that decision, but withdrew it on 29 May 2013. 17. On 6 June 2013 the Court of Cassation dismissed an appeal on points of law by C.B. against the Poitiers Court of Appeal’s decision of 5 July 2011. 18. On 23 December 2008 the Vienna District Court (“the District Court) granted a request by C.B. for an interim injunction against the applicant, ordering him to refrain from contacting her for a period of three months. The court based its decision on statements given by C.B. according to which the applicant had threatened to kill her and had tried to abduct one of the children. 19. On the same day the mayor of Vienna granted a request by C.B. for a ban on disclosing information (Auskunftssperre) under the relevant provision of the Residence Registration Act (Meldegesetz). 20. On 27 February 2009 the applicant lodged a complaint against C.B. with the Austrian criminal authorities for suspected child abduction. 21. On 17 March 2009 the District Court dismissed a request by C.B. for an extension of the interim injunction granted against the applicant on 23 December 2008. 22. On 7 April 2009 C.B. filed a new request with the District Court for an interim injunction against the applicant, this time claiming that they were all at risk of physical harm and the children at risk of sexual abuse. The request was dismissed on 22 April 2009. 23. On 22 May 2009 the Vienna public prosecutor’s office (Staatsanwaltschaft) informed the applicant that the criminal investigation it had initiated against him for the aggravated sexual abuse of minors had been discontinued. 24. On 25 May 2011 the public prosecutor’s office informed the applicant that the criminal investigation against C.B. in Austria for child abduction had been discontinued. 25. On 25 February 2009 the applicant lodged a request with the District Court for the children’s return, pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). 26. On 6 April 2009 the District Court, after hearing the applicant and C.B. in person, ordered C.B. to return the children to the applicant. It found that C.B.’s allegations of sexual abuse of the children directed against the applicant could not be proven by her or her mother’s statements, or reports obtained from the Child Protection Centre (Kinderschutzzentrum). It argued that she had raised that suspicion rather late in the proceedings, and that the Child Protection Centre’s reports mainly relied on her and her mother’s allegations. Furthermore, the Child Protection Centre’s first report, dated 4 March 2009, did not contain any information about alleged sexual abuse, while the reasoning in the second report, dated 14 March 2009, why certain observations of the children’s behaviour would allude to sexual abuse by their father, was considered to be unsubstantiated. The District Court further held that the children’s removal had been wrongful within the meaning of Article 3 of the Hague Convention and that C.B. had failed to establish that their return would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation pursuant to Article 13 (b) of the Hague Convention. 27. C.B. appealed against that decision. 28. On 25 June 2009 the Vienna Regional Court (“the Regional Court”) partly allowed C.B.’s appeal and amended the decision in so far as it ordered the children’s immediate return to France (and not to the applicant). Under point 3 of the decision, it further declared that the decision would only become effective if the French authorities demonstrated that they would take adequate measures to protect the children’s best interests in France after their return, in particular with regard to the suspicion of sexual abuse and in accordance with Article 11 (4) of the Brussels IIa Regulation. It held that neither tactical reasons for the mother’s allegations of sexual abuse nor interference with the children’s best interests after their return to their father’s place could be excluded. 29. On 13 October 2009 the Supreme Court dismissed an appeal by C.B. against the Regional Court’s decision. However, it partly allowed an appeal by the applicant and removed point 3 from the impugned decision. Since it had not been established that he actually posed a threat to the children or that there were any other obstacles to their return, there was no reason to make the return order dependent on the safeguards which could be furnished by the French authorities under Article 11 (4) of the Brussels IIa Regulation (“safe harbour orders”). 30. On 18 November 2009 the applicant filed a request with the District Court for enforcement of the return order. 31. On 21 November 2009 a court bailiff (huissier de justice) in Nice confirmed that C.B. and the children had presented themselves to her. In submissions to the District Court of 24 November 2009, C.B. claimed to have fulfilled the conditions set out in the decisions of the Regional Court and the Supreme Court by returning the children to France (and not to the applicant). 32. On 2 December 2009 the applicant informed the District Court of his suspicion that C.B. had meanwhile left France again and travelled back to Austria. 33. On 6 December 2009 the District Court ordered a bailiff (Gerichtsvollzieher) to remove the children from C.B. and hand them over to the Youth Welfare Office. 34. On 7 December 2009 the competent judge, the bailiff and a representative of the Youth Welfare Office looked for C.B. and the children at her and her mother’s addresses in Vienna. However, the enforcement attempt was unsuccessful as neither C.B. nor the children were present at the addresses known to the authorities’ representatives. However, they did see C.B.’s mother and a friend of hers, who stated that C.B. was currently hiding in France with her children but would have to come back to Vienna for work. Afterwards the applicant, who had been waiting nearby, was informed of the authorities’ unsuccessful attempt to trace C.B. and their children that day. The incidents were reported in a letter to the president of the District Court, including a statement that the court currently regarded the “issue” as “terminated”. 35. C.B. subsequently appealed against the District Court’s enforcement order of 6 December 2009, and on 24 December 2009 she filed a request for the court to refrain from enforcing the return order (Antrag auf Abstandnahme von der Fortsetzung des Rückführungsverfahrens). 36. On 22 February 2010 the applicant requested that the District Court disclose C.B.’s address, which had been kept secret from him. 37. On 2 April 2010 the District Court granted the applicant’s request, holding that the ban on disclosure was no longer justified. 38. On the same day the District Court dismissed C.B.’s request for nonenforcement of the return order. 39. On 13 April 2010 the Regional Court rejected C.B.’s appeal against the District Court’s enforcement order of 6 December 2009. It held that she was no longer adversely affected by the impugned decision as the enforcement date had already passed before she had filed the appeal. However, as an obiter dictum it pointed out that, according to recent reports from the Child Protection Centre, the children’s accounts of alleged ill treatment by their father had become more precise in the meantime, which constituted a substantial change in the circumstances on which the return order had been based. Contrary to the outcome of the main proceedings under the Brussels IIa Regulation and the Hague Convention, the Regional Court therefore considered the obligation under Article 11 (4) of the Brussels IIa Regulation to be applicable in that the District Court would have to ask the French authorities to use safeguards to ensure that the return of the children was in their best interests, such as not to return them to the applicant in person while the suspicion of abuse against him remained. 40. On 16 April 2010 the applicant filed a new request for enforcement of the return order, stating that in another set of proceedings before a court in Rochefort C.B.’s representative had informed the court that her current address was her mother’s in Vienna, where for the purposes of enforcement of the return order C.B. and the children had been searched for by the competent authorities on 7 December 2009 (see paragraph 34 above). 41. On 26 April 2010 C.B. filed a new request for the District Court to refrain from enforcing the return order, which was dismissed on 26 July 2010. She also submitted a psychiatric opinion, dated 29 March 2010 and commissioned by the Vienna Youth Welfare Office. The expert stated that the children seemed to be traumatised and suffering from post-traumatic stress disorder, possibly due to assaults by their father which could not be specified any further; thus, even assuming that C.B. had also attempted to alienate her children from the applicant, their return to their father would in any event trigger fear and panic reactions contrary to their best interests. 42. On 21 September 2010 the Regional Court dismissed appeals by C.B. against the decisions of 2 April 2010 and 26 July 2010 concerning her requests for non-enforcement of the return order. It further rejected an appeal by her against the District Court’s decision of 2 April 2010, ordering the disclosure of her address to the applicant. However, it held again that it would be the District Court’s task to obtain safeguards from the French authorities to avoid the children being exposed to a grave risk of physical or psychological harm. 43. On 20 October 2010 the Supreme Court rejected an extraordinary appeal on points of law by C.B. against the Regional Court’s decision of 13 April 2010. It upheld the Regional Court’s reasoning in so far as C.B. was no longer adversely affected by the impugned decision (see paragraph 39 above), but held that it was for the court of first instance to examine whether the circumstances had changed in the meantime in such a way that the enforcement of the return order would now entail a grave risk for the children. 44. On 23 November 2010 the Supreme Court rejected an extraordinary appeal on points of law by C.B. against the Regional Court’s decision of 21 September 2010. It noted that the District Court had already contacted the French Central Authority by letter in accordance with Article 11 (4) of the Brussels IIa Regulation, and that the enforcement of a return order under the Hague Convention could only be stopped if it was established that there were no adequate safeguards to protect the children’s best interests upon their return to France. It therefore called upon the District Court to examine the adequacy of the safeguards offered by the French authorities. 45. On 14 January 2011 the District Court held an oral hearing to examine how best to approach the question whether the children would face a grave risk of harm upon their return to France. The competent judge also requested that C.B. inform her of all the proceedings then pending in France. 46. On 26 January 2011 the judge appointed an expert psychologist, S., and ordered her to submit a report on whether the children’s return to France (either to their father or to a child protection institution) could harm their psychological development. The judge pointed out, inter alia, that due to the arrest warrants (see paragraph 13 above) C.B. was likely to be arrested as soon as she returned the children to France herself, and that the expert’s observation of the father’s and the children’s interactions with each other would be of significant importance with a view to the accusations of ill-treatment directed against him. All the parties were ordered to cooperate with the expert. 47. On 4 February 2011 C.B.’s counsel submitted to the court the requested information concerning the pending proceedings in France (custody proceedings, criminal proceedings against C.B. for child abduction, and criminal proceedings against the applicant for sexual abuse) (see paragraphs 12 – 17 above). 48. On 15 March 2011 C.B. informed the court that the children would not be able to attend the scheduled examination by the appointed expert due to illness; she also submitted a medical certificate describing the children’s illness. 49. On 21 March 2011 C.B. challenged the judge and S. for bias. The president of the District Court dismissed the challenge for bias against the judge on 25 May 2011. C.B. subsequently appealed against that decision and submitted new challenges for bias against the competent judge of the District Court again as well as the panel of judges of the Regional Court which had given the decision of 21 September 2010 (see paragraph 42 above). The District Court, the Regional Court and the Vienna Court of Appeal each subsequently ruled on these challenges for bias and on C.B.’s respective appeals. Her allegations were dismissed with final effect on 7 December 2011 by the Regional Court, which, inter alia, considered C.B.’s allegations to be unfounded and that she had lodged several challenges for bias for tactical reasons. 50. On 7 March 2012 the District Court dismissed C.B.’s challenge against the expert S. 51. On 8 March 2012 the District Court removed S. from the case and appointed another expert psychologist, R. who, unlike S., was a specialist in traumatology. It referred to the Court’s judgment in the case of Šneersone and Kampanella v. Italy (no. 14737/09, 12 July 2011), in which the Court found a violation of Article 8 because the domestic courts in that case had not adequately taken into consideration the risk of psychological trauma that would inevitably stem from a sudden and irreversible cutting of the close ties between mother and child. 52. On 5 April 2012 R. submitted her expert opinion to the District Court; two further psychological opinions were privately commissioned by C.B. and submitted by her counsel to the court at the same stage of the proceedings. 53. On 13 August 2012 the District Court dismissed the applicant’s request of 16 April 2010 for enforcement of the return order (see paragraph 40 above). Referring to the three expert opinions mentioned above (see paragraph 52 above), in particular the one obtained from R., it held that the children had been severely traumatised by all the events which had occurred in their family since 2008, that they were suffering from severe post-traumatic stress disorder, and that a separation from their mother and their return to France would very likely trigger an existential crisis and gravely harm their emotional and cognitive development. The court did not deny that the mother’s adverse influence on the children regarding their father had also contributed to their negative attitude towards him. However, it also stated that the allegations of sexual abuse against him could neither be proven nor excluded. Regarding the statement on the applicant’s mental health in the psychiatric opinion forwarded by the French Central Authority (see paragraph 72 below), the District Court considered that the report had not been drawn up in accordance with the Austrian standards for examining a person’s educational skills as it had only been based on the applicant’s interview with the expert and no psychological tests had been carried out. In contrast, the three expert opinions (see paragraph 52 above) were not only based on C.B.’s allegations, but also on psychological tests of the children and their mother. However, in her examination of the case R. did not hold a meeting between the children and the applicant as such an interaction would have very likely resulted in the children being further traumatised. 54. In its reasoning, the District Court further reiterated that a court could only refuse to return a child for the reasons set out under Article 13 (b) of the Hague Convention if it was not established that adequate measures to protect the child’s best interests after his or her return would be taken. In August 2010 it had therefore requested that the French authorities provide the appropriate safeguards. According to the French Central Authority’s answers by letters of 23 May and 8 July 2011, all conditions would be met to ensure that the children were returned without any risk; they also stated that the children would not be immediately entrusted to the applicant upon their return. The District Court concluded therefore that the children would temporarily be put into foster care, which was contrary to their best interests. It also pointed out that on 26 March 2012 it had held a hearing to discuss possible scenarios concerning the children’s return to France and to consider alternative ways of reestablishing contact between the applicant and the children. Since the applicant had failed to attend the hearing without providing any excuse, the court assumed that the purpose of the proceedings seemed to be more for him to argue out his conflict with C.B. than for the children’s return to France. It further held that a balancing of the competing interests of those involved had to be carried out in such a case, and that the children’s interests were of paramount importance. Referring to the case of Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, ECHR 2010), the court stated that the possibility of the children being further traumatised, the serious difficulties that they would be likely to encounter under new living conditions in France and the lack of adequate safeguards were reasons why the return order could not be enforced. Instead, psychologically assisted contact between the applicant and the children should be slowly re-established in Austria. 55. The applicant appealed against the decision and challenged the judge for bias. 56. On 1 October 2012 the District Court dismissed the challenge for bias. The decision was upheld by the Regional Court on 20 February 2013. 57. On 7 May 2013 the Regional Court dismissed an appeal by the applicant against the District Court’s decision of 13 August 2012 (see paragraph 53 and 54 above), upholding its reasoning and adding that, due to the arrest warrant against C.B., the children would likely be put into foster care without their mother. 58. On 28 August 2013 the Supreme Court quashed the District Court’s decision of 13 August 2012 and the Regional Court’s decision of 7 May 2013 and remitted the case. It observed that under the Hague Convention the court dealing with an application for return should act expeditiously when deciding it and, subsequently, when providing for the enforcement of an already issued return order. It would be contrary to that obligation if the court delayed or possibly impeded the return of a child by not ruling or by belatedly deciding the parties’ requests. In that context, it noted that in the present case, after the District Court had delivered its decision on 13 August 2012, eleven months had already elapsed before the case eventually came before it. The delay in the return proceedings caused by the abducting parent’s behaviour was not a fact which by itself exempted the authorities from their obligation to swiftly and adequately implement their duties under international law. 59. However, the Supreme Court conceded that, given that the children had meanwhile adapted well to living in Austria and their mental health had become stable, their well-being would be gravely put at risk if the return order was enforced without any safeguards. Nonetheless, it noted that this development was mainly due to the fact that almost four years had elapsed since the return order had become final in October 2009. Therefore, the return order was still enforceable as long as it was not established that no adequate measures would be taken to protect the children’s best interests upon their return to France. The Supreme Court therefore ordered the District Court to clarify whether the arrest warrant issued against C.B. in France could be lifted, to assess whether C.B.’s mother in place of C.B. would be willing to accompany the children to France and care for them in a child protection institution, and to obtain the French authorities’ assurance that the children could live in a child protection institution as close to the applicant as possible. It further held that it was for the applicant to apply to the competent authorities in France for temporary care for his children in a child protection institution, and that it was not for the Austrian courts to establish contact between him and the children under Article 11 (4) of the Brussels IIa Regulation since the establishment of contact for the purposes of the enforcement of a return order fell within the competence of the authorities of the State from which the children had been abducted. 60. On 15 November 2013 the District Court asked the French authorities for information as requested by the Supreme Court in its decision of 28 August 2013. 61. On 31 October 2014, after another oral hearing on 29 August 2014 and a telephone conversation with the public prosecutor at the Poitiers Court of Appeal on 3 September 2014, the District Court again dismissed the applicant’s request of 16 April 2010 for enforcement of the return order (see paragraph 40 above). It held that C.B.’s mother was unwilling to stay temporarily with the children in France after their return and that, in any event, C.B. had to start serving her prison sentence once she entered France. It further noted that the French authorities had formulated different ways of avoiding the children’s separation from their mother, but could not give any guarantees in advance; instead, they had pointed out that C.B. first had to return the children to France before any concrete measures could be taken. The District Court therefore concluded that the French authorities had failed to devise an exact plan which, in particular, would avoid the children being immediately separated from their mother. Given that the children would probably be placed in a child protection institution in a (for them) foreign country and without any familiar caregivers around, there would be a severe risk of harm for them within the meaning of Article 13 (b) of the Hague Convention if they were returned to France. 62. On 11 February 2015 the Regional Court dismissed an appeal by the applicant against the District Court’s decision of 31 October 2014. It conceded that C.B.’s behaviour concerning the removal of the children from France in itself, but also with regard to her delaying tactics in the present proceedings, was unacceptable. However, it was now for the Austrian courts only to decide whether the requirements of Article 11 (4) of the Brussels IIa Regulation were fulfilled, namely whether the children could be returned to France without being separated from their mother. In this regard, it held that the District Court had correctly concluded that the requirements of Article 11 (4) were not fulfilled, since the French authorities had not provided sufficient guarantees to ensure that the children would not suffer severe harm upon their return. It had not been established that the children could stay with C.B. while she was serving her prison sentence, and since their grandmother was unwilling to accompany them to France, they would be left without any caregivers familiar to them. 63. Regarding the applicant’s allegations that the District Court had failed to contact the relevant French authorities and to ask the right questions, the Regional Court held that the French authorities had merely referred to general alternatives without offering any precise answers to the Austrian courts’ concerns. The court considered that the District Court had already made sufficient attempts to obtain concrete guarantees from the French authorities as it was mainly their responsibility to take adequate measures. In particular, the French authorities should have given an undertaking that the decision of 7 January 2009 provisionally determining the children’s main residence with their father would be revoked and that, despite the prison sentence, C.B. would be granted safe conduct in order to be able to participate in the custody proceedings in France. The Regional Court also considered that the applicant’s conduct was not in the children’s best interests either, since the enforcement of the decision of 7 January 2009 and C.B.’s criminal conviction appeared to be more important to him than their well-being, and he did not even realise the seriousness of the burden to which he would expose his children if they were forced to return to him after not having seen him for more than six years. In sum, the Regional Court concluded that because of a lack of adequate “safe harbour orders” the children’s return to France entailed a grave risk for them; furthermore, since they had meanwhile adapted well to living in Vienna, their uprooting would very likely also lead to a severe endangerment of their well-being. 64. On 30 March 2015 the applicant filed an extraordinary appeal on points of law. 65. On 27 April 2015 the Supreme Court rejected the extraordinary appeal on points of law. It confirmed that the children’s separation from their mother in the event of their return to France could still not be excluded because of C.B.’s prison sentence, and that such separation would very likely severely traumatise and psychologically harm them within the meaning of Article 13 (b) of the Hague Convention. It reiterated that the return of the children could not be refused if it was established that the French authorities had made adequate arrangements to protect the children’s best interests upon their return. However, if there remained doubts in this respect, the return would have to be refused. Since the measures as set out by the French authorities had to be considered insufficient to secure the protection of the children upon their return, the non-enforcement of the return order was justified. Nonetheless, the Supreme Court pointed out that the decision was primarily based on what seemed best for the children’s well-being and did not necessarily lead to the conclusion that C.B.’s conduct had been lawful. Lastly, it observed that the applicant still had the possibility of applying to the Austrian courts for contact rights. 66. The decision was served on the applicant on 19 May 2015. 67. In a letter of 6 February 2017 the District Court stated that, to date, the applicant had not applied to the Austrian courts for contact rights. 68. The French Central Authority (bureau de l’entraide civile et commerciale international) at the Ministry of Justice (hereinafter “the FCA”) and its Austrian counterpart at the Federal Ministry of Justice (hereinafter “the ACA”) remained in contact throughout all of the abovementioned proceedings. In their letters, the officials in charge of the case regularly discussed how to protect the children’s best interests upon their return to the applicant. The FCA sent several requests to its counterpart for information on the progress of the case, in particular on the measures taken by the Austrian authorities to locate C.B. and the children and the reasons why the return order had not been enforced. The ACA informed its French counterpart of the respective state of the proceedings, referred to the parties’ requests and appeals as obstacles to the continuation of the enforcement of the return order and considered the actual address of C.B. and the children to be unknown. Regarding the ACA’s requests for safeguards to secure the protection of the children, the FCA pointed out at the beginning of the enforcement proceedings that there were no obstacles impeding the children’s return to their father as the competent French judge had already determined that their main residence was at his home; thus, the French Youth Welfare Office would not be notified of the children’s return to France. However, on 27 November 2009 the FCA confirmed in a letter to the ACA that if the children returned to France, a social worker would meet them at the airport in Paris and take them to their father. 69. In May and August 2010 the competent judge at the District Court twice requested that the FCA help her establish contact with the judge competent in childcare matters (juge des enfants – hereinafter “the children’s judge”) in France because she had doubts as to whether the immediate return of the children to their father would expose them to grave harm and therefore preferred temporary social care for them. 70. On 4 February 2011 the FCA informed its Austrian counterpart that it had been suggested to the public prosecutor in charge of childcare matters that the case be brought before the children’s judge in accordance with Article 11 (4) of the Brussels IIa Regulation, and that the public prosecutor had indicated a wish to do so. 71. On 7 February 2011 the children’s judge at the La Rochelle tribunal de grande instance appointed an expert psychiatrist and ordered him to deliver a report on whether the applicant was suffering from any form of mental illness; on the same day he ordered the STEMOI (Service territorial éducatif de milieu ouvert et d’insertion, a youth welfare service) in La Rochelle to examine the living conditions at the applicant’s home and his educational and emotional skills. 72. On 6 April 2011 the FCA submitted the psychiatric opinion obtained by the children’s judge, which stated that the applicant did not suffer from any form of mental illness, could meet a child’s needs and was very much devoted to his children. 73. On 23 May 2011 the FCA submitted the STEMOI’s pre-report which confirmed that the living conditions provided by the applicant were appropriate to accommodate his children; however, the STEMOI would only be able to assess the applicant’s educational and emotional skills once the children were returned to him. 74. In a letter of 8 July 2011 the FCA confirmed, in reply to the Austrian authorities’ concerns about an immediate return of the children to the applicant and their proposal of temporary social care, that the children would not be entrusted to their father right after their return, and that the children’s judge would monitor their best interests and, if need be, take measures of educational support. 75. On 12 August 2011 the FCA submitted a judgment given by the children’s judge of the La Rochelle tribunal de grande instance on 27 July 2011, which stated that no measures of educational support for the applicant had to be taken at that time. According to the evidence taken so far (see paragraphs 72 and 73 above), the applicant was able to provide appropriate living conditions for his children and did not suffer from any form of mental illness or sexually deviant behaviour. His educational and emotional skills could only be assessed upon the children’s effective return to France, and by the time of their return concrete measures could again be taken into consideration. 76. Following the Supreme Court’s decision of 28 August 2013 (see paragraph 58 above), on 23 December 2013 the FCA informed its Austrian counterpart that it had forwarded the District Court’s request of 15 November 2013 (see paragraph 60 above) to the public prosecutor at the Poitiers Court of Appeal, suggesting that the case again be brought before the children’s judge at the La Rochelle tribunal de grande instance. 77. In a letter of 14 March 2014 the FCA submitted a report which the public prosecutor at the Poitiers Court of Appeal had made on 14 February 2014, in reply to the District Court’s request of 15 November 2013 (see paragraph 60 above). According to the report, C.B., due to the arrest warrant against her, was registered in the French register of persons being searched for by the criminal authorities (fichier des personnes recherchées – “FPR”); thus, she could immediately be arrested once she entered France. However, in the event of her return to France together with her children, the public prosecutor would be prepared to withdraw her from the FPR on the grounds that the children’s return would make it possible for the applicant to see his children, so that the objective of the arrest warrant would then also be achieved. Hence, C.B. would not risk immediate arrest if she entered France. The public prosecutor however noted that in any event C.B. would have to start serving her prison sentence, and that suspending it from the outset would not be possible. She could however apply to serve the sentence under electronic surveillance immediately after being imprisoned if she proved that she had a residence in France. After serving half of the sentence she could then apply for conditional release, which could even be granted earlier if she proved that her children were living with her. As to the civillaw issues of the District Court’s request of 15 November 2013, the public prosecutor referred to the children’s judge’s decision of 27 July 2011 (see paragraph 75 above). 78. In their letter of 14 March 2014, the FCA complemented the public prosecutor’s report by explaining that the children’s judge could order that the children be placed either with their mother, another member of the family or a trusted third party, or eventually in an institution, possibly in the vicinity of the applicant’s home. Such an order would overrule the decision of the Rochefort tribunal de grande instance family judge of 7 January 2009, which had determined that the children’s main residence was with their father. As for C.B.’s prison sentence, it was recommended that she or her counsel contact the competent public prosecutor in advance and already prepare the necessary applications, since it could not be excluded that she would be questioned by the judge in charge of the review of her punishment as early as on the first day of her detention. 79. On 15 April 2014 the FCA submitted confirmation by the children’s judge dated 8 April 2014 that as soon as the effective return of the children was fixed by the Austrian authorities he would be prepared to order temporary foster care for them and educational support for the father to reestablish the ties between them. 80. On 1 July 2014 the FCA submitted another report from the public prosecutor at the Poitiers Court of Appeal which, in reply to another questionnaire of the District Court, repeated the conditions under which C.B. could apply for conditional release. It further stated that the children would not be allowed to stay at the detention centre while C.B. was serving her sentence. During that time they would be cared for by their father or by the Youth Welfare Office. Instead of temporary foster care, the children’s judge could order educational support in an “open setting” consisting of a team of social workers assisting the father with his children. If the exact return date was not communicated by the Austrian authorities in advance and an interim measure had to be adopted quickly due to C.B.’s detention, the public prosecutor would have to order temporary foster care for the children and would have eight days to bring the case before the children’s judge, who would then have to take the necessary steps. | 1 |
test | 001-157962 | ENG | AZE | CHAMBER | 2,015 | CASE OF ANNAGI HAJIBEYLI v. AZERBAIJAN | 3 | Preliminary objection dismissed (Article 37-1 - Striking out applications);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska | 5. The applicant was born in 1955 and lives in Baku. 6. The applicant was nominated by the coalition of the Popular Front and Musavat parties to stand as a candidate in the parliamentary elections of 7 November 2010 and applied for registration as a candidate in the singlemandate Saatli Electoral Constituency No. 62. 7. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, on 5 October 2010 the applicant submitted to the Constituency Electoral Commission (“the ConEC”) fourteen signature sheets containing 675 voter signatures collected in support of his candidacy. 8. Before the ConEC’s decision on the question of the applicant’s registration as a candidate, the accuracy of the signature sheets and other registration documents submitted by the applicant were to be first examined by a special working group (işçi qrupu) established by the ConEC. Although the applicant had requested to be present during the process of the examination by the working group, this took place without him. 9. By a decision of 11 October 2010 the ConEC refused the applicant’s request for registration as a candidate. The ConEC found that, according to the opinion of the working group, a number of submitted supporting signatures were invalid, and that the remaining valid signatures numbered fewer than 450. In particular, 597 of the 675 signatures had been examined, and it was found that 257 of those signatures were invalid. 10. The following reasons were given in the ConEC working group’s examination record dated 10 October 2010: (a) three signatures were “repeat signatures”; (b) seven signatures were invalid because there were uncertified corrections of them on the signature sheets; (c) twelve signatures were invalid owing to incorrect personal information provided concerning those voters; (d) one signature was invalid because it was on the wrong line; (e) 201 signatures were not authentic because they had been made repeatedly by the same individuals who had already signed the signature sheets; and (f) thirty-three signatures were invalid for “other” (unspecified) reasons. 11. On 13 October 2010 the applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision to refuse registration. He complained, inter alia, of the following: (a) 257 signatures were deemed invalid on the basis of a mere visual examination, without any additional adequate investigation; (b) the members of the ConEC working group were not real experts. The head of the working group was a school gym teacher, while two other members were an employee of a statistics committee and an employee of the passports department of a local police office; (c) there was no explanation as to what constituted “other” reasons for declaring thirty-three of the signatures invalid; (d) contrary to the requirements of Article 59.3 of the Electoral Code, the applicant had not been invited to participate in the process of examination of the signature sheets by the ConEC working group, and thus had been deprived of the right to give the necessary explanations to the experts; (e) contrary to the requirements of Article 59.13 of the Electoral Code, he had not been provided with a copy of the results of the examination of the signature sheets at least twenty-four hours prior to the ConEC meeting to decide on the applicant’s registration; (f) the applicant’s presence at the ConEC meeting of 11 October 2010 had not been ensured. 12. Enclosed with his complaint to the CEC, the applicant submitted written statements by over 400 voters whose signatures had been declared invalid, affirming the authenticity of their signatures. However, according to the applicant, those statements were not taken into consideration by the CEC. 13. The CEC conducted another examination of the signature sheets using members of its own working group. The applicant was not invited to participate in this process. According to the working group’s findings, a total of 238 signatures were considered to be invalid. It appears that 233 of those were considered inauthentic because they had allegedly been made repeatedly by the same persons in the name of other persons, and the remaining five were found to be invalid owing to the voters’ incorrect personal information. 14. The applicant was not invited to the CEC meeting dealing with his complaint against the ConEC decision of 11 October 2010. 15. By a decision of 16 October 2010 the CEC dismissed the applicant’s complaint and upheld the ConEC decision of 11 October 2010. It found that, on the basis of the findings of the CEC’s own working group, 238 out of 675 signatures submitted by the applicant were invalid and that the remaining 437 valid signatures were below the minimum number required by law. 16. The applicant was given copies of the CEC decision and the working group opinion on 17 October 2010. 17. On 19 October 2010 the applicant lodged an appeal against the CEC decision with the Baku Court of Appeal. He reiterated his complaints made before the CEC concerning the ConEC decision and procedures. Moreover, he raised, inter alia, the following complaints: (a) contrary to the requirements of the electoral law, the CEC had failed to notify him of its meetings and to ensure his presence during the examination of the signature sheets and the examination of his complaint; (b) the CEC had ignored the written statements by over 400 voters confirming the authenticity of their signatures and had failed to take them into account; and (c) the CEC had failed to provide any reasoning and had not addressed any of the applicant’s arguments in its decision. 18. By a judgment of 22 October 2010 the Baku Court of Appeal dismissed the applicant’s appeal. The court dismissed the applicant’s arguments as irrelevant or unsubstantiated, and found that there were no grounds for quashing the CEC’s decision. 19. On 25 October 2010 the applicant lodged a further appeal with the Supreme Court, reiterating his previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the case and had delivered an unreasoned judgment. 20. On 28 October 2010 the Supreme Court dismissed the applicant’s appeal as unsubstantiated, without examining his arguments in detail and finding no grounds for doubting the findings of the electoral commissions and the Court of Appeal. 21. In addition to the applicant in the present case, at the material time the applicant’s representative Mr Intigam Aliyev was representing twentyseven other applicants in cases concerning the 2010 parliamentary elections and a number of applicants in other cases before the Court. Mr Aliyev has also lodged an application on his own behalf in a case relating to the 2010 elections (application no. 66684/12). 22. In August 2014 the prosecution authorities launched an investigation into the activities of a number of NGOs, including the Legal Education Society, an NGO headed by Mr Aliyev. 23. On 7 August 2014 the Nasimi District Court issued a search warrant authorising the search of Mr Aliyev’s office in the Legal Education Society and seizure of “legal, financial, accounting and banking documents, letters and contracts, reports on execution of grant contracts and tax documents relating to [the organisation’s] establishment, structure, functioning, membership registration, receipt of grants and other financial aid, and allocation of granted funds, as well as computers, disks, USB keys and other electronic devices storing relevant information ...” 24. On 8 August 2014 Mr Intigam Aliyev was arrested after questioning by an investigator of the Prosecutor General’s Office in connection with the criminal proceedings instituted against him under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code. On the same day, the Nasimi District Court ordered his detention pending trial. He remains in detention while the criminal proceedings against him are pending. The circumstances relating to Mr Aliyev’s arrest and detention are the subject of a separate application brought by him before the Court (application no. 68762/14). 25. On 8 and 9 August 2014 the investigation authorities conducted a search of Mr Aliyev’s home and office pursuant to the Nasimi District Court’s search warrant of 7 August 2014, seizing, inter alia, a large number of documents from his office, including all the case files relating to the pending proceedings before the Court, which were in Mr Aliyev’s possession and which concerned over 100 applications in total. The file relating to the present case, which, it appears, included copies of all the documents and correspondence between the Court and the parties, was also seized in its entirety. No adequate inventory of the seized document files relating to the Court proceedings was made in the search and seizure records of 8 and 9 August 2014. 26. On an unspecified date Mr Aliyev lodged a complaint with the Nasimi District Court, claiming that the search had been unlawful. He complained that the investigator had failed to register each seized document as required by the relevant law and had taken the documents without making an inventory. He further complained about the seizure of the documents and files relating to the ongoing court proceedings before the Court and the domestic courts. 27. On 12 September 2014 the Nasimi District Court dismissed Mr Aliyev’s claim. It held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic court, it found that they could not be returned to the applicant at this stage of the proceedings. Following an appeal, on 23 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision of 12 September 2014. 28. On 25 October 2014 the investigation authorities returned a number of the case files concerning the applications lodged before the Court, including the file relating to the present case, to Mr Aliyev’s lawyer. The investigator’s relevant decision specified that “since it has been established that among documents seized on 8 and 9 August 2014 there were files concerning applications by a number of individuals and organisations lodged with the European Court of Human Rights, which have no relation to the substance of the criminal proceedings [against Mr Intigam Aliyev], [those files] have been delivered to [Mr Aliyev’s lawyer] Mr Javad Javadov”. | 1 |
test | 001-163822 | ENG | PRT | CHAMBER | 2,016 | CASE OF SOARES v. PORTUGAL | 4 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1957 and lives in Góis. 6. At the relevant time, the applicant was a chief corporal in the National Republican Guard (Guarda Nacional Republicana), working at the Góis territorial post. 7. On 7 November 2009 the applicant sent an email to the General Inspectorate of Internal Administration (Inspecção-Geral da Administração Interna) on the subject “Suspected misuse of money”, in which he made reference to an alleged misuse of money by Commander M.C. of the Arganil territorial post in accordance with what he had heard in a conversation with colleagues at the Arganil territorial post. He asked the General Inspectorate to investigate the alleged facts, stating as follows: “In the month of December 2008 the Coimbra [National Republican Guard] Territorial Group distributed money to the territorial posts of its area of command ... for the Christmas dinner ... The only members of the military [in Arganil] who attended the dinner were the Commander of the post and Corporal M.; the total amount of money that had been given to the military from the [territorial] post [to pay for the dinner] was paid to the restaurant’s manager in exchange for a receipt ... it seems that the Commander has since then been going with his family to the mentioned restaurant, where the cost of his meals is deducted from the money that was not spent [on the above dinner] ... Note: I have just become aware of this matter through rumours within the military of the mentioned post, who claim that they have not reported the situation for fear of reprisals, and because of that [fear of reprisals] I ask you for secrecy during the investigation because I am also a member of the military ...” 8. On an unknown date the General Inspectorate of Internal Administration forwarded the email to the General Command of the National Republican Guard (Comando Geral da Guarda Nacional Republicana) and to the Lousã public prosecutor’s office (Ministério Público). 9. On an unknown date the Lousã public prosecutor’s office opened an investigation into the applicant’s allegations. On 28 February 2010 the Lousã public prosecutor’s office discontinued the proceedings on the grounds that, following investigations by the criminal investigation police (Policía Judiciária), it had found no evidence of the criminal offence denounced by the applicant. 10. The General Inspectorate of Internal Administration also conducted an inquiry into the applicant’s allegations. On 21 June 2010 the inquiry was discontinued. 11. The General Command of the National Republican Guard also started an internal inquiry into the allegations on 4 December 2009. On 23 December 2009 Commander M.C. was heard in that respect. He then became aware of the email of 7 November 2009 and its content. On 9 February 2010 the inquiry was converted into disciplinary proceedings against Commander M.C. at the request of the official in charge of the inquiry on the grounds that the management of the cafeteria of the Arganil territorial post showed signs of lack of transparency which required further investigation. 12. On 30 July 2010 the disciplinary proceedings against Commander M.C. were discontinued on the grounds that there was insufficient evidence to take disciplinary action. The decision to discontinue the disciplinary proceedings also took into account the decision of the Lousã public prosecutor’s office to discontinue the criminal proceedings against Commander M.C. 13. On 22 April 2010 Commander M.C. lodged a criminal complaint before the Lousã public prosecutor’s office, accusing the applicant of defamation. He alleged that the applicant’s email had disseminated injurious statements about him. 14. On 7 July 2011 the public prosecutor brought charges (acusação) against the applicant for aggravated defamation on the grounds that the statements made in his email called into question Commander M.C.’s honesty, honour and professional reputation, which the applicant had intentionally attacked. 15. On 21 September 2011 Commander M.C. lodged a claim for damages against the applicant in the amount of 5,000 euros (EUR). 16. In a judgment of 17 January 2012 the Lousã Criminal Court convicted the applicant of aggravated defamation and sentenced him to eighty day-fines, totalling EUR 720 euros. The applicant was also ordered to pay EUR 1,000 in damages to Commander M.C. The Court described its findings of fact and the manner in which it had assessed the evidence, and held as follows: “... since the existence of such a rumor has not been proved in any way, the court is fully convinced that the defendant’s intention was to undermine the honour of the offended party, once he knew that this was just a rumour and that therefore he was making an allegation that was not true. ... The allegation made in the defendant’s complaint, by its content, put into question the offended party’s honesty, honour and professional reputation as commander of a territorial post of the National Republican Guard – which was well known to the defendant. The defendant has therefore acted in a free, voluntary and conscious way, with the achieved aim of attacking the offended party’s honour and personal and professional reputation. ... The disclosure of irregular situations has to be seen as a duty (as the performance of an obligation) when it falls within the competence and responsibilities of the whistle-blower and when it does not go beyond the facts which were effectively observed. [Whistle-blowing] cannot be used as a basis to cast suspicion which cannot be supported by any factual element. In the instant case, the defendant accuses the offended party of facts which are objectively dishonorable without having any evidence to substantiate them. Indeed, by submitting that the offended party and his family were using the existing credit to have dinner at the mentioned restaurant, the defendant knew that he was accusing the offended party of a dishonorable deed, all the more because he knew that the offended party was in charge of the National Republican Guard’s Arganil territorial post. He further knew that the allegation was inconsistent with the truth and that he could easily have clarified its authenticity with the restaurant owner. Through such conduct, the defendant acted of his own free will and in the knowledge that ... [his actions] were not allowed.” 17. On an unknown date the applicant appealed against the judgment to the Coimbra Court of Appeal. In particular, he contested the established facts as, in his opinion, he had not acted with the intention of attacking Commander M.C.’s honour and reputation. 18. On 19 September 2012 the Coimbra Court of Appeal upheld the first-instance court’s decision. It considered that there were no reasons to change the facts established by the first-instance court and, as such, no reasons to reach a different conclusion with regard to the applicant’s guilt and conviction. 19. On 3 August 2011 the General Command of the National Republican Guard instituted disciplinary proceedings against the applicant. 20. On 20 February 2013 the official in charge of the inquiry within the disciplinary proceedings against the applicant submitted a final report in which he concluded that the applicant had breached his duties. The relevant passage of the report reads as follows: “... the defendant breached the duty of loyalty... as being on duty and being part of the Góis Territorial Post in the quality of Deputy Commander of the Post, he did not inform his hierarchical superiors, in clear disregard of the functional hierarchy principles, of the acts allegedly committed ...” 21. In the report it was also taken into account that the applicant’s allegations had been investigated by different authorities, all of which had discontinued their investigations. Additionally, it had regard to the fact that the applicant had been convicted by the domestic courts in the criminal proceedings against him. The report further analysed the existence of a fine which Commander M.C. had imposed on the applicant before the latter had sent the impugned email. However, the official responsible for the report considered that fact to be innocuous and irrelevant. 22. On 27 March 2013, at the request of the official responsible for the disciplinary proceedings, the General Command imposed on the applicant a disciplinary sanction consisting of suspension from duty for six days, its enforcement being suspended for a period of twelve months. 23. According to the material submitted in the case file, it seems that the applicant did not lodge an appeal against the disciplinary sanction with the Minister of Home Affairs. | 0 |
test | 001-158036 | ENG | SRB | COMMITTEE | 2,015 | CASE OF ŠERIFOVIĆ AND OTHERS 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;Mārtiņš Mits | 5. The applicants were born in 1961, 1960 and 1949, respectively, and live in Novi Pazar. 6. They were employed by DP “Raška Holding Kompanija” AD, a socially-owned company based in Novi Pazar (hereinafter “the debtor”). A. Civil proceedings brought by the first applicant (Ms Fifa Šerifović) 7. On 27 March 2003, 11 December 2003 and 3 October 2005 respectively, the Novi Pazar Municipal Court ordered the debtor to pay the first applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. These judgments became final on 22 April 2003, 16 January 2004 and 1 January 2006 respectively. 8. On 23 May 2003, 25 February 2004 and 20 April 2006 respectively, upon the first applicant’s request to that effect, the Novi Pazar Municipal Court ordered the enforcement of the said judgments and further ordered the debtor to pay the first applicant the enforcement costs. B. Civil proceedings brought by the second applicant (Ms Muradija Seferović) 9. On 5 November 2007, the Tutin Municipal Court ordered the debtor to pay the second applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 20 November 2007. 10. On 19 October 2012, upon the second applicant’s request to that effect, the Tutin Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the second applicant the enforcement costs. C. Civil proceedings brought by the third applicant (Ms Derviša Zukorlić) 11. On 12 May 2008, the Novi Pazar Municipal Court ordered the debtor to pay the third applicant specified amounts on account of salary arrears, plus the costs of the civil proceedings. This judgment became final on 22 July 2008. 12. On 13 June 2011, upon the third applicant’s request to that effect, the Novi Pazar Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the third applicant the enforcement costs. 13. On 5 January 2004 the Privatisation Agency ordered the restructuring of the debtor. 14. On 11 September 2013 the Kraljevo Commercial Court opened insolvency proceedings in respect of the debtor. 15. The applicants duly reported their respective claims based on the above-mentioned judgments to the insolvency administration. 16. The insolvency proceedings are still ongoing. | 1 |
test | 001-166743 | ENG | RUS | COMMITTEE | 2,016 | CASE OF MAKHMUD 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) | Alena Poláčková;Helen Keller;Johannes Silvis | 4. The applicant, Mr Mokhammed Makhmud, is a Somali national, who was born in 1979 and currently lives in the United States of America. 5. On an unspecified date the applicant arrived to Russia. He was granted refugee status by the Russian authorities and applied to the United States authorities for asylum. 6. According to the Russian authorities, the applicant was involved in transportation of four illegal migrants from Russia to Finland. 7. On 28 May 2012 the applicant was arrested and formally charged. 8. On 31 May 2012 the Primorsk District Court of St Petersburg remanded the applicant in custody. The District Court noted that the applicant was a foreign national without a permanent place of residence in Russia and official employment and charged with a serious crime. The District Court also noted that his application for asylum was pending before the United States Consulate in Russia. 9. On 1 June 2012 the applicant’s representative appealed. 10. On 12 July 2012 the St Petersburg City Court quashed the detention order of 31 May 2012 on appeal and referred the matter back to the first-instance court. 11. On 19 July 2012 the District Court, relying on the same grounds, ordered the applicant’s detention between 28 May and 28 July 2012. In doing so, the District Court considered that neither the applicant’s refugee status nor his permanent place of residence and dependent family members (wife and child) justified the application of an alternative preventive measure. Finally, it referred to the applicant’s intention stated at the hearing eventually to leave the Russian territory. 12. On 20 July 2012 the applicant’s counsel appealed. 13. On 3 September 2012 the St Petersburg City Court upheld the detention order on appeal. 14. On 20 July 2012, the District Court, relying on the same grounds, extended the applicant’s detention. 15. On 26 July 2012 the applicant appealed. 16. On 13 September 2012 the St Petersburg City Court upheld the detention order on appeal. 17. On 12 September 2012, the District Court, relying on the same grounds, extended the applicant’s detention until 14 October 2012. 18. On 18 September 2012 the applicant appealed. 19. On 13 December 2012 the St Petersburg City Court rejected the applicant’s counsel’s appeal. 20. On 22 January 2013 the St. Petersburg City Court held a preparatory hearing and again extended the applicant’s detention for another six months. 21. On 25 January 2013 the applicant appealed. 22. On 14 March 2013 the St Petersburg Regional Court upheld the detention order. 23. On 4 June 2013 the District Court, by a collective detention order in respect of both co-defendants, extended the applicant’s detention for another three months. 24. On 13 June 2013 the applicant appealed. 25. On 4 September 2013 the St Petersburg City Court upheld the detention order on appeal. 26. On 26 September 2013 the District Court extended the applicant’s detention until 28 December 2013. The applicant was in detention pending trial at least until 2 January 2014. 27. On 9 April 2014 the District Court found the applicant guilty and convicted him to two years’ imprisonment. | 1 |
test | 001-164662 | ENG | RUS | COMMITTEE | 2,016 | CASE OF KOROVINA AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6-1 - Civil rights and obligations;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 5. All the applicants were parties to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became final but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix). | 1 |
test | 001-168849 | ENG | RUS | COMMITTEE | 2,016 | CASE OF ALEKSANDROV AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | 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. The applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-154027 | ENG | MKD | CHAMBER | 2,015 | CASE OF MITRINOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 6. The applicant was born in 1950 and lives in Skopje. 7. On 6 December 2010 a three-judge panel of the Skopje Court of Appeal, presided over by the applicant (including Judges I.L. and M.S.), decided, in second instance, to grant an appeal of a detainee. The panel accepted a proposed bail and replaced an order for detention on remand with an order for house arrest (Ксж.бр. 537/2010). On 9 December 2010 the State Public Prosecutor challenged this decision by means of a request for the protection of legality (барање за заштита на законитоста). He sought that the Supreme Court declared that decision unlawful and that it be remitted for fresh consideration. 8. On 10 December 2010 a five-judge panel of the Supreme Court, presided over by Judge J.V., the President of the Supreme Court at the time, held a session at which the public prosecutor’s request was examined. The Supreme Court accepted the prosecutor’s amended request (преиначено) and stated inter alia that: “The Supreme Court finds that Skopje Court of Appeal, which decided the appeal ... against the decision ... in which the Skopje Court of First Instance had dismissed a request for termination of pre-trial detention (предлог за укинување на мерката притвор) as unsubstantiated, had no statutory ground to decide the complaints on the merits, but, on the contrary, it was bound by law to establish that the appeal ... was inadmissible ...” 9. On 10 December 2010 the criminal division of the Supreme Court composed of six judges of that court, including Judge J.V. (see section 39(1) of the Rules of the Supreme Court, paragraph 22 below), held a session at which they discussed the case Ксж.бр. 537/2010. Following an examination of the record of the deliberations of the Skopje Court of Appeal regarding the decision of 6 December 2010 (see paragraph 7 above), the criminal division of the Supreme Court concluded that two judges had disclosed professional misconduct. The relevant part of the record of that session reads as follows: “... the criminal division of the Supreme Court unanimously found (едногласно се донесе заклучок) that there had been professional misconduct by two judges of the Skopje Court of Appeal who had adjudicated in the case Ксж.бр. 537/2010. The President of the Supreme Court, J.V., then closed the session of the criminal division.” 10. In submissions of the same date, Judge J.V., as an ex officio member of the State Judicial Council (“the SJC”, see Amendment XXVIII to the Constitution, paragraph 19 below), requested that the SJC establish professional misconduct in respect of the applicant and Judge I.L. This request was submitted pursuant to sections 78 and 79 of the State Judicial Act 2010 (“the Act”, see paragraph 20 below) according to which a member of the SJC or the president of the higher court can seek that professional misconduct proceedings were launched regarding a judge. As stated in the request, there were reasonable grounds to believe that the applicant and Judge I.L. had exercised the office of judge in an unprofessional and unconscientious manner given that they had voted in favour of the decision of 6 December 2010 in the criminal case Ксж.бр. 537/2010, which had been in violation of the Criminal Proceedings Act. In support, he submitted copies of the decisions of 6 and 10 December 2010 (see paragraphs 7 and 8 above). 11. On 23 December 2010 the plenary of the SJC, including Judge J.V., discussed Judge J.V.’s request for determination of professional misconduct on the part of the applicant and accepted it as timely, complete and admissible. It also set up a Commission for determination of professional misconduct by the applicant (“the Commission”), composed of five of its members, including the President of the SJC (see section 80 of the Act, paragraph 20 below). The composition of the Commission did not include Judge J.V. 12. On 29 December 2010 the Commission communicated Judge J.V.’s request and the supporting evidence to the applicant. On 18 January 2011 the applicant responded in writing and provided evidence in support (see section 81 of the Act, paragraph 20 below). Judge I.L. resigned in the meantime. After the Commission had obtained the material in the case Ксж.бр. 537/2010, on 14 January 2011 it submitted a report to the (plenary of the) SJC as to whether Judge J.V.’s request was justified. 13. On 23 February 2010, the plenary of the SJC, including Judge J.V., initiated professional misconduct proceedings against the applicant and temporarily suspended him from the office of judge. In the decision, the SJC relied on sections 84 and 86 of the Act (see paragraph 20 below). The relevant parts of this decision read as follows: “The SJC, on the basis of (Judge J.V.’s) request ... set up (the Commission) ... After the Commission had taken actions pursuant to sections 81 and 82 of (the Act), it submitted, under section 83 of (the Act), to the SJC a report as to whether the request was justified. The SJC ... discussed the request and the Commission’s proposal and decided to initiate professional misconduct proceedings ...” 14. On 19 April 2011 the Commission held, pursuant to section 87 of the Act (see paragraph 20 below), a hearing. As noted in the record of the hearing, it was attended by the applicant and his legal representative, as well as by Judge J.V. as complainant. Judge J.V.stated inter alia that: “... I submitted the request (for determination of unprofessional and unconscientious exercise of the office of judge regarding the applicant) for the following reasons: (the applicant), as the chairman of the panel and a judge rapporteur (in the case Ксж.бр. 537/2010) and judge I.L., as a member of that panel, contrary to (the Criminal Proceedings Act) ... had unlawfully decided on the merits ... they had no statutory ground to decide on the merits of the complaints raised in the appeal, but they were bound by law to reject the appeal as inadmissible. For these reasons, I consider that in this case ... there are grounds [to be established that there was] unprofessional and unconscientious exercise of the office of judge ... I must underline that I submitted this request to the SJC in view of the conclusion of the criminal division of the Supreme Court of 10 December 2010 [see paragraph 9 above] ...” 15. After the applicant had presented his arguments verbally, the President of the Commission put several questions to him. The applicant’s lawyer and judge J.V. did not put any questions notwithstanding that they were provided with such an opportunity. Then, the applicant and judge J.V. made concluding remarks. The record of the hearing indicated that under section 92 of the Act (see paragraph 20 below), the Commission would draw up a report, which would be communicated to the SJC for consideration. The record of the hearing was signed by the applicant, judge J.V., as the complainant, and the members of the Commission (see section 90 of the Act, paragraph 20 below). As evident from the available material, the Commission submitted such a report in which it proposed that the SJC dismiss the applicant for professional misconduct. 16. On 18 May 2011 the plenary of the SJC, which included judge J.V., dismissed the applicant from the office of judge for professional misconduct. The relevant parts of the decision read as follows: “The SJC finds that Skopje Court of Appeal had no statutory ground to examine and decide on the merits of the complaints raised in the appeal [in the criminal case Ксж.бр. 537/2010], but it was bound by law to establish that the accused’s appeal submitted by his lawyer had been inadmissible. Accordingly, it decided in violation to (the Criminal Proceedings Act). ... Such a decision is unlawful and contrary to [relevant provisions of the Criminal Proceedings Act] ... ... When establishing unprofessional and unconscientious exercise of the office of judge [by the applicant], the SJC relied, as a legal ground, on the judgment of the Supreme Court [see paragraph 8 above] and the conclusion of the criminal division of the Supreme Court of 10 December 2010 [see paragraph 9 above]. The (criminal) division explicitly established that (the applicant), as chairman of the panel and a judge rapporteur, ... had been unprofessional and decided contrary to [the relevant provisions of the Criminal Proceedings Act] ...” 17. The applicant appealed against that decision before the second-instance body, namely an Appeal Panel formed within the Supreme Court on an ad hoc basis in each case separately and composed, as specified in section 96 of the Act (see paragraph 20 below), of nine judges, of whom three were to be Supreme Court judges, four Appeal Court judges and two judges of the court of the applicant. He also sought withdrawal of judge J.V. and all the Supreme Court judges. In support he stated that there was a conflict of interest, as judge J.V. had sought his dismissal and had later voted for it as an ex officio member of the SJC. The position he held was such that he could influence other judges of that court. 18. On 13 September 2011 the Appeal Panel dismissed the appeal and confirmed the SJC’s decision dismissing him from the office of judge. It also refused his request for the withdrawal of judges. It found that it was the plenary of the Supreme Court, and not the Appeal Panel, which had competence to decide on the applicant’s request for the withdrawal of the President of the Supreme Court. Relying on the Civil Proceedings Act it further rejected as inadmissible the applicant’s request for the withdrawal of all the judges of a court. | 1 |
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