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test | 001-169215 | ENG | ALB | COMMITTEE | 2,016 | CASE OF MOLLA v. ALBANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Kristina Pardalos;Pauliine Koskelo;Robert Spano | 4. The applicant was born in 1958 and lives in Korça. 5. On 14 July 1995 and 14 June 1996 the Korça Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave) (“the Commission”) decided to recognise the applicant’s inherited property title to two plots of land measuring 118 sq. m and restore them to the applicant. 6. On an unspecified date the Korça Regional Company for the Distribution of Electricity (Ndërmarja zonale e shpërndarjes së energjisë elektrike) (“the defendant”) started the construction of a high-voltage line on the applicant’s plots of lands. 7. On an unspecified date the applicant sought an injunction to suspend the construction works. 8. On 13 January 2006 the Korça District Court (“the District Court”) issued an injunction and ordered the construction to be suspended. On 8 March 2006 and 4 May 2007 the Korça Court of Appeal (“the Court of Appeal”) and the Supreme Court respectively upheld that decision. 9. On 26 January 2006 the applicant brought an action against the defendant to bring the construction works to an end immediately, remove the high-voltage line and restore the site to its previous state. 10. On 30 January 2006 the bailiff in the case discontinued enforcement proceedings concerning the decision of 13 January 2006 on the grounds that the works had been suspended. 11. On 7 April 2006 the District Court ordered the immediate termination of the works on the applicant’s plot of land, the removal of the high-voltage line and the restoration of the site to its former state (ndalimin e punimeve si dhe duke detyruar ana e paditur të heqë kabllot, të dy linjat dhe ta kthejë pronën në gjendjen e mëparshme). The District Court reasoned that the defendant had unlawfully constructed that line on the applicant’s property. On 27 June 2006 the Court of Appeal upheld that judgment. On an unspecified date the defendant lodged an appeal with the Supreme Court against the lower courts’ judgments. 12. On 10 August 2006 the applicant requested that the bailiff enforce the judgment of 7 April 2006, as upheld by the Court of Appeal on 27 June 2006. However, as the proceedings on the merits of the case were pending before the Supreme Court (see paragraph 11 above), on 8 September 2006 the Supreme Court provisionally decided to stay the enforcement proceedings. 13. Subsequently, the applicant lodged a constitutional appeal against the Supreme Court’s decision of 8 September 2006. 14. On 16 May 2007 the Constitutional Court dismissed the appeal on the grounds that an examination of the applicant’s action on the merits was pending before the Supreme Court. 15. On 11 January 2008 the Supreme Court upheld in a final judgment the District Court’s judgment of 7 April 2006 and the Court of Appeal’s judgment of 27 June 2006. 16. On 22 February 2008, following the Supreme Court’s judgment of 11 January 2008, the applicant again requested that the bailiff enforce the judgment of 7 April 2006. 17. From 2008 to 2011 the bailiff unsuccessfully sought to enforce the final judgment. In particular, on 29 February 2008 the bailiff sought to have the defendant comply voluntarily with the judgment. The bailiff further imposed a fine of 71,155 Albanian leks (ALL) on the defendant. On 10 April 2008 the bailiff again ordered the defendant to pay a fine for failing to comply with the final judgment. On 21 September 2011 and 25 November 2011 the defendant informed the bailiff that the applicant was prepared to solve the dispute with the authorities by way of a friendly settlement. On 17 November 2014 the applicant informed the bailiff that the defendant had failed to reach a settlement with her. She requested the continuation of the enforcement proceedings. 18. On 8 April 2015 the bailiff imposed another fine on the defendant for failing to comply with the final judgment. 19. On 20 May 2008 the applicant filed a criminal complaint against the bailiff and the Distributor Energy Operator (Operatori i Shpërndarjes së Energjisë Elektrike) (“DEC”) for failure to comply with the judgment of 7 April 2006. It appears that on an unspecified date the Court of Appeal discontinued the proceedings by virtue of a final judgment. 20. On 11 July 2008 the applicant lodged a criminal complaint against the Albanian Electricity Corporation (Korporata Elektroenergjetike Shqiptare) (“AEC”) and the Korça municipality for “destruction of private property”. On 14 July 2011 the prosecutor’s office discontinued the criminal proceedings in a final decision. 21. On an unspecified date the applicant brought a civil action against C.E.Z Shpërndarje sh.a, which had privatised DEC, claiming damages and loss of profit. 22. On 7 May 2012 the District Court decided to stay the proceedings and await the conclusion of the civil proceedings instituted by AEC against the administrative decisions of 14 July 1995 and 14 June 1996 (see paragraph 24 below), which had recognised the applicant’s property rights. 23. On 6 December 2012 the Court of Appeal amended that decision and decided that the proceedings could continue. It appears that the case is still pending before the domestic courts. 24. On 6 February 2007 AEC brought a civil action against the applicant to annul the administrative decisions of 14 July 1995 and 14 June 1996 on the grounds that the plots of land had belonged to and had been used by AEC since 1960. 25. On 24 January 2008 the District Court ordered the freezing of the title to the applicant’s plots of land (vendim për marrjen e masës së sigurimit të padisë duke bllokuar pronën në Zyrën e Regjistrimit të Pasurive të Paluajtshme). On 12 December 2008 and 26 January 2012 the Court of Appeal and the Supreme Court lifted the freezing order. 26. On 31 July 2008 the District Court decided, at the applicant’s request, to stay the proceedings and await the conclusion of other civil and criminal proceedings instituted by the applicant. On 6 January 2009 and 17 October 2013 the Court of Appeal and the Supreme Court respectively upheld that decision. 27. On 5 March 2014 the District Court discontinued its examination of the case on the grounds that AEC had failed to attend a hearing without good reason. It would appear that AEC did not appeal against that judgment and it became final on an unspecified date. 28. On two other occasions AEC and DEC brought civil actions against the applicant to annul the administrative decisions of 14 July 1995 and 14 June 1996. On 17 April 2012 and 22 December 2014, respectively, the District Court discontinued its examination of the actions on the grounds that AEC and DEC had failed to attend hearings for no good reason. It appears that they did not appeal against either judgment and they became final on an unspecified date. | 1 |
test | 001-167796 | ENG | RUS | CHAMBER | 2,016 | CASE OF CHAUSHEV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicants were born in 1977, 1969, and 1975 respectively and at the time the case was introduced were imprisoned in Kochubeyevskoye and Aleksandria. 7. They were among 17 people facing assorted charges related to the socalled Karachay-Circassian Jamaat, a militant Islamist underground movement active in the North Caucasus in the late 1990s and early 2000s. 8. When the case came to trial before the Stavropol Regional Court, on 12 April 2002 a judge ordered – without giving any explanation – that the trial be held behind closed doors in remand prison IZ26/2 in Pyatigorsk. 9. On 11 July 2002 the court sentenced the applicants to ten, five, and six years respectively. The applicants lodged an appeal with the Supreme Court, complaining, among other things, that the trial had been closed to the public. On 14 May 2003 the Supreme Court upheld the judgment without replying to the complaint. | 1 |
test | 001-179571 | ENG | SRB | CHAMBER | 2,017 | CASE OF KRSMANOVIĆ v. SERBIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1975 and lives in Zemun. 6. On 12 March 2003 the Serbian Prime Minister, Mr Zoran Đinđić, was assassinated by members of a criminal group known as the Zemun Clan (Zemunski klan). 7. The Prime Minister’s assassination prompted the Serbian Government to declare a state of emergency and introduce measures in accordance with the State of Emergency Act 1991 (Zakon o merama za slučaj vanrednog stanja, Official Gazette of the Republic of Serbia, no. 19/1991). 8. During that time a large-scale police operation known as Operation Sabre (Sablja) took place. Approximately 10,000 people were arrested during the operation and placed in pre-trial detention. 9. The state of emergency lasted until 23 April 2003. 10. The applicant was a member of a criminal group linked to the Zemun Clan. During Operation Sabre all members of the Zemun Clan and groups linked to it were arrested and questioned about the Prime Minister’s assassination. Those arrested were also questioned about other crimes such as murders, abductions and drug trafficking. 11. The applicant’s arrest took place at around 4 p.m. on 1 April 2003, when five members of the Special Anti-Terrorist Unit broke into the apartment in which he was hiding with five friends. 12. The applicant claims that on the arrival of the Special Anti-Terrorist Unit he was subjected to physical and verbal abuse. Its members immediately started to kick and beat him indiscriminately all over his body and face. They put a pillowcase over his head, verbally abused him and made threats aimed at his family. The maltreatment continued for an hour. On the recording of his arrest, which was broadcast on national television at the beginning of April 2003, he was shown with visible bruises on his face. 13. At around 6 p.m. the applicant and his friends were taken to the police station and left in the corridor. According to the applicant, police officers passing by sporadically hit and kicked him and his friends. He could not identify them as his face was still covered with a pillowcase. 14. At some point two police officers came and took the applicant for questioning. He was taken to an office in which seven to nine people were present. Two or three of them were women. 15. According to the applicant, the maltreatment continued there. He was beaten with baseball bats and police truncheons. He was beaten on the soles of his feet and the palms of his hands. A truncheon was inserted several times into his anus. At one point, a nylon bag was put over the pillowcase which made him lose consciousness. During all that time the applicant remembered hearing his friends screaming. 16. At around 3.30 a.m. on 2 April 2003 two police officers took him to a solitary confinement cell. He was unable to walk so the officers carried him. In the cell his handcuffs were taken off and a detention order was put before him for signature. 17. As alleged by the applicant, approximately half an hour later two police officers entered the cell. They handcuffed him, put a bag over his head and took him for questioning. During that time he was again beaten, kicked and maltreated. Throughout this time, he was not allowed to drink any water. 18. In the applicant’s version of events, after approximately two hours of maltreatment he was returned to the solitary confinement cell. He was kept there for eleven days. During the first five days no food was given to him. Afterwards, he was given one sandwich per day. Throughout that period police officers routinely questioned and ill-treated him in the same way as before. 19. At approximately 10 p.m. on 12 April 2003 the applicant was transferred to Belgrade District Prison (Okružni zatvor), where he remained for a year and two months pending the outcome of the criminal proceedings instituted against him. 20. On 15 April 2003 a prison doctor examined him and issued a medical certificate, which contained an extensive list of his injuries. These included large haematomas on the soles of his feet, palms of his hands, face, shoulders and buttocks, as well as conjunctival hyperaemia (redness) on the external parts of his eyes. The certificate also contained a statement that the applicant had been “beaten in the police station”. 21. During the first sixty days of his detention in Belgrade District Prison he was placed in a solitary confinement cell and only had contact with the doctors who examined him. After two months he had fully recovered from the ill-treatment he had suffered. 22. On 13 October 2003 the applicant was charged with illegal production and trafficking of drugs (neovlašćena proizvodnja i stavljanje u promet opojnih droga), abduction (otmica) and unlawful deprivation of liberty (protivpravno lišenje slobode). On 22 June 2004 he was sentenced to four years and ten months’ imprisonment. He was released from pre-trial detention on 25 June 2004 pending the outcome of appeal proceedings. 23. On 18 May 2004 the applicant’s mother lodged a complaint with the Inspector General’s Service of the Ministry of the Interior (Generalni inspektorat Ministarstva unutrašnjih poslova), alleging that her son had been tortured by members of the Special Anti-Terrorist Unit and police officers working for the Narcotics Department of the Criminal Police Directorate (Odeljenje za suzbijanje narkomanije Uprave kriminalističke policije, also known as the Fourth Department) in Belgrade. 24. On 11 May 2005, 26 May 2005, 8 June 2005 and 12 January 2006 the applicant’s mother submitted additional information complaining that her son had been ill-treated, and that moveable property had been confiscated from his home. 25. On 24 February 2006 the applicant was invited to the Inspector General’s Service to give a statement about his mother’s allegations. He confirmed that he had been ill-treated. 26. On 16 March 2006 the Inspector General’s Service interviewed D.S., the Deputy District Public Prosecutor (zamenik Okružnog javnog tužioca) in Belgrade, who stated that in April 2003 he had been at the police station during the applicant’s questioning. D.S. gave the names of several of the police officers involved and stated that he had not seen any injuries on the applicant. On the contrary, the applicant had seemed pleased because he had been informed that he would be charged with lesser offences than expected. D.S. also claimed that the applicant had had no complaints about his treatment. 27. On 13 June 2006 statements were taken from two police officers, R.P. and A.K. Both claimed that they had not participated in the immediate arrest, but had entered the apartment after the members of the Special Anti-Terrorist Unit had already arrested the applicant and his friends. In the apartment they had seen several people dressed in only their underwear, being handcuffed and lying face down. They denied having seen any bruises or injuries on those arrested. 28. On 10 July 2006 the Inspector General’s Service interviewed the applicant’s wife, who made no complaints about the applicant’s treatment during his arrest or while in detention. She only complained about the confiscation of certain movables from their home. 29. On 28 September 2006 the chief of the Fourth Department of the Criminal Police Directorate in Belgrade (Načelnik četvrtog odeljenja UKP SUP), Z.K., gave a statement to the Sector for the Internal Control of the Police. He said that he had had no knowledge of the applicant or his friends having been subjected to any ill-treatment. 30. On 21 March 2007 the applicant’s mother’s complaint of ill-treatment of her son was rejected by the Inspector General’s Service for lack of evidence of a crime. 31. On 1 July 2007 the applicant lodged a criminal complaint with the First Municipal Public Prosecutor’s Office (Prvo opštinsko javno tužilaštvo – “the prosecutor’s office”) against a number of the unknown perpetrators as well as against three police officers identified only by surname. 32. On 20 July 2007 the prosecutor’s office opened an official inquiry with requests for the police to provide evidence and the names of those involved in the applicant’s arrest and questioning, and an investigative judge to question the applicant. He was interviewed on 9 October 2007. 33. On 30 November 2007 the Sector for the Internal Control of the Police identified three police officers, V.M., S.P., and Z.K., in connection with the applicant’s arrest and questioning. The officers stated that no violence had ever been used against the applicant. On 27 December 2007 the prosecutor’s office dropped the charges against them for lack of evidence. 34. At the same time the case against the unidentified police officers remained open because, according to the prosecutor’s office, “it transpired from the evidence gathered that Krsmanović Đorđe had sustained injuries while in detention” (iz prikupljenih dokaza utvrđeno je da je Krsmanović Đorđe zadobio povrede u periodu dok mu je bio određen pritvor). It would appear that the case is still open. 35. After learning of that decision, on 23 January 2008 the applicant took over the criminal proceedings as a subsidiary prosecutor (oštećeni kao tužilac) by requesting to have an investigation opened against V.M., S.P., and Z.K. 36. On 21 April and 18 November 2008 the investigating judge to whom the case was assigned interviewed three doctors who worked at the prison hospital. On 15 January 2009 he also interviewed the police officers accused of ill-treatment. On 24 March 2009 he refused to open an investigation because there was not enough evidence to prove that the accused had committed the crime they were suspected of. On 23 September 2009 the pre-trial chamber of the First Belgrade Municipal Court upheld the decision of the investigating judge. The applicant appealed. On 13 April 2010 the Belgrade Appellate Court upheld that decision. 37. On 10 July 2010 the applicant lodged an appeal on points of law with the prosecutor’s office, which was rejected on 11 October 2010. 38. On 11 July 2010 the applicant also lodged a constitutional appeal. He complained principally about the lack of an effective investigation into the events under Articles 21, 25, 27, 29, 32, 33 and 36 of the Constitution and Articles 3, 6, 13 and 14 of the Convention. On 23 July 2013 his constitutional appeal was rejected by the Constitutional Court, whose decision was served on the applicant on 11 September 2013. The court primarily considered the applicant’s complaints under Article 6 of the Convention and found them to be manifestly ill-founded. As to the applicant’s complaint under Article 3 of the Convention, the Constitutional Court found it to be outside its temporal jurisdiction in view of the date of entry into force of the Constitution itself. In respect of the other complaints, the Constitutional Court held, inter alia, that: “it is not enough to allege a violation of one’s rights in a constitutional appeal or list the constitutional rights that are considered to be violated and reasons for their violations based on the appellant’s subjective estimation or evaluation, but to put each mentioned reason into a direct relationship with the allegedly violated constitutional right, and a violation or denial of a certain constitutional right has to be caused by an act or action that occurred before the entry into force of the Constitution. This also implies that specific and detailed reasons of the alleged violation of the constitutional right have to be specified in the constitutional appeal, because only a causal link presented in such manner may compel the Court to find a violation or denial of a certain right.” | 1 |
test | 001-153017 | ENG | ROU | CHAMBER | 2,015 | CASE OF ZAIEŢ v. ROMANIA | 2 | Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1955 and lives in Săvârșin. 6. She was adopted on 25 February 1972, at the age of seventeen. 7. The applicant’s adoptive mother also had another adopted daughter, H.M. The applicant’s mother died in 1986. 8. In 2003, the two sisters were jointly granted title to ten hectares of forest, based on their entitlement through adoption to inherit land which had been expropriated from their grandmother. 9. Subsequently, the applicant brought an action for division of the land between the sisters. 10. While the proceedings were ongoing, H.M. brought an action for annulment of the applicant’s adoption. She claimed that the main aim pursued by her adoptive mother when she had sought to adopt the applicant had been to ensure emotional and financial support for her in old age and help with everyday activities. H.M. averred that the only aim pursued by the applicant in agreeing to the adoption had been to obtain inheritance rights. 11. The applicant submitted that the main reason why her sister had lodged the action for the annulment of her adoption had been to preclude her from inheriting half of the ten hectares of land and to keep all the property inherited from their adoptive mother for herself. In this respect she claimed that the lawfulness of the adoption order had never been questioned before, although it had been issued thirty-two years previously. She concluded that the misunderstandings which had arisen between her and her sister after the death of their adoptive mother could not justify the annulment of an adoption concluded in accordance with the law. 12. In his final oral submissions before the first-instance court the applicant’s lawyer raised the objection of lack of locus standi of the plaintiff. He contended that H.M. had not proved a legitimate and current interest in seeking the annulment of her sister’s adoption. 13. On 7 December 2004 the Suceava County Court dismissed the applicant’s objection and declared the applicant’s adoption void, finding that it had not had a purpose envisioned by the Family Code. It held that the only aim of the applicant’s adoption had been the fulfilment of the patrimonial interests of the adoptive mother and the adopted child, and that it had not been intended to ensure a better life for the applicant. 14. The applicant lodged an appeal on points of law, maintaining that she had lived with her adoptive mother since she was nine years old, although the adoption order had only been issued in 1972 when she was seventeen. She submitted that the family relationship established between her and her adoptive mother since she was nine had been proved by witness statements which were in the case file, and that it was also attested to in the report drafted by the authorities when they carried out a social investigation in connection with her adoption. 15. The judgment of the court of first instance was upheld by a decision of the Suceava Court of Appeal rendered on 15 April 2005. A dissenting opinion to that decision stated that the adoption had not been improper, as its main aim had been the welfare of the applicant, who had been born into a family with eight children and a difficult financial situation. | 1 |
test | 001-174064 | ENG | TUR | CHAMBER | 2,017 | CASE OF SİNİM v. TURKEY | 3 | Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström | 5. The applicant was born in 1979 and lives in Istanbul. 6. The applicant’s husband, Ali Sinim, entered into an agreement with a truck owner, Mr A.S., for the transportation of some personal goods and furniture from Istanbul to Antalya on 5 August 2006. According to the applicant’s allegations, her husband was informed that the truck in question had been booked by a transport company for the same day and that it would also be carrying some raw materials belonging to another client. 7. On the date in question the applicant’s husband loaded his goods into the truck and got into it as a passenger. However, before reaching its destination the truck collided with another vehicle and caught fire. The truck’s driver and substitute driver died at the scene of the accident as a result of the fire. The applicant’s husband died a few days later at the hospital where he had been receiving treatment for his burns. 8. It was discovered after the accident that the “raw materials” being transported in the truck with the applicant’s husband’s goods were in fact an inflammable liquid, which had caught fire upon impact. According to the police scene-of-incident report, the containers that had contained the spilt inflammable liquid bore the words “Şenocak chafing fuel”. 9. An autopsy report issued on 31 January 2007 by the Forensic Medicine Institute stated that the applicant’s husband had died as a result of the burns he had sustained at the time of the accident rather than from trauma caused by the impact of the crash. 10. According to the initial report prepared by the traffic police at the scene, the driver of the truck, whose identity could not be established at the time, bore the main responsibility for the accident as he had hit the other vehicle, driven by S.S.H., from behind. 11. On 5 August 2006 officers from Sultanbeyli police station took statements from the applicant, S.S.H. and the owner of the truck, A.S., who was also the son of one of the truck drivers, M.S. A.S. confirmed in his statement that he was the owner of the truck, which his father M.S. had loaded with goods to be transported to Antalya. He stated that a third person, namely A.Ç., had also been in the truck to help his father during the journey. He was not asked any questions about the nature of the goods transported. 12. On 4 September 2006 the applicant filed a criminal complaint with the Sultanbeyli public prosecutor’s office against A.S., S.S.H, and the transport company to which the truck had been leased, if any, for causing her husband’s death by illegally carrying dangerous inflammable goods. The applicant stressed in her complaint that the incident in question had not been a simple traffic accident caused by negligence, and that her husband had lost his life because of the inflammable goods that had been loaded unlawfully in the truck without his knowledge and consent. The applicant argued that if her husband had been properly informed of the nature of the truck’s cargo, he would never have agreed to travel in it. The applicant therefore requested the identification of all the individuals or companies who may have been responsible for her husband’s death, including the transporter, the seller and the buyer of the inflammable goods. She also requested to be informed of developments in the investigation as she intended to join the proceedings as a civil party (müdahil). 13. On 9 November 2006 A.S. submitted a petition to the Sultanbeyli public prosecutor’s office for an investigation into the liability for the accident of both the transport company which had leased his truck and of the seller and buyer of the inflammable cargo, whom he accused of concealing the dangerous nature of the goods in question. As evidence, he submitted the invoice and delivery note (sevk irsaliyesi) prepared on 4 August 2006 by the transport company Salihli Nakliyat Otom. Ltd. Şti. (“Salihli Ltd. Şti.”) for the recipient, Şenocak Dış Ticaret ve Turizm Sanayi Ltd. Şti. (“Şenocak Ltd. Şti.”), where the shipment was described as “raw materials” without any further details. A.S. stated that if it had been made clear that the goods involved were inflammable then they would have been transported in accordance with the conditions set out in the law, which might have prevented the fatal accident. 14. On 28 November 2006 the applicant filed an additional complaint against the producer of the inflammable liquid, which she had identified as Şenocak Ltd. Şti. based on the information provided in the scene-of-incident report (see paragraph 8 above). The applicant claimed that the liquid in question contained ethanol and methanol, which had both been classified as “hazardous goods subject to control” in the Regulation on Dangerous Goods and the Regulation on the Transport by Land of Dangerous Goods, and which accordingly had to be packed, labelled, stored and transported in compliance with the strict requirements set down in those regulations. Moreover, under the Regulation on the Transport by Land of Dangerous Goods, it was prohibited to carry passengers, apart from a substitute driver and a guard, in vehicles transporting dangerous goods. Having regard to the various responsibilities imposed by the relevant legislation on the producer, seller, transporter and buyer of such goods, the applicant requested that the public prosecutor (i) check if Şenocak Ltd. Şti. was the producer and whether it also engaged in the distribution of such material; (ii) establish whether the truck in question had been leased by a transport company or by Şenocak Ltd. Şti. itself and whether it had a licence to carry such dangerous goods; and (iii) identify the buyer of the goods. She also repeated her request to be informed of developments in the investigation. 15. On 6 May 2007, at the request of the Sultanbeyli prosecutor, a traffic engineer submitted an expert report, where it was found that the deceased truck driver M.S. had been responsible for the accident by failing to comply with the law applying to vehicles carrying inflammable goods on keeping a distance of fifty metres. The expert found that S.S.H., the driver of the other vehicle, had not been at fault. 16. Relying mainly on the expert report, on 7 May 2007 the Sultanbeyli public prosecutor found that the only person responsible for the accident within the meaning of Article 85 of the Turkish Criminal Code (causing death by negligence – see paragraph 46 below) was M.S. However, since M.S. had also lost his life in the accident, the public prosecutor decided against prosecution. A.S. was listed as the sole complainant in the decision, which was not notified to the applicant. 17. After finding out about the decision on her own initiative, on 29 June 2007 the applicant objected to the public prosecutor’s decision not to prosecute, arguing mainly that the issues she had raised in her petitions of 4 September and 28 November 2006 had not been taken into account by the public prosecutor. She reiterated that her husband had not been informed that the truck was carrying inflammable liquids, and also argued that the prosecutor had failed to identify the companies involved in the shipment of such dangerous goods, including the seller, buyer and transport company, and had not established the relations of the truck owner, A.S., to those companies. She argued that it was of the utmost importance to collect that information in order to establish the facts and to identify those responsible for the accident, apart from the driver of the truck. She added that despite the numerous complaints she had lodged with the public prosecutor’s office and her requests to be informed of developments in the investigation, she had not been named as a complainant in the public prosecutor’s decision and the decision had not been notified to her. 18. It appears that A.S., as the other complainant, did not lodge an objection against the public prosecutor’s decision. 19. On 4 September 2007 the Kadıköy Assize Court rejected the objection against the decision of the Sultanbeyli public prosecutor not to prosecute M.S. and S.S.H. It held, nevertheless, that complaints lodged by A.S. against Salihli Ltd. Şti. and Şenocak Ltd. Şti. had remained unanswered and instructed the Sultanbeyli public prosecutor to investigate their liability for the accident. A.S. was once again listed as the sole complainant in the decision, which was not notified to the applicant. 20. On 6 December 2007 the applicant submitted a petition to the Sultanbeyli public prosecutor’s office, asking it to investigate the matters raised in her previous petitions. The applicant also stressed that despite her numerous requests, she had, once again, not been recognised as a complainant in the Kadıköy Assize Court’s decision. 21. It appears that on 22 January 2008 an agent of the transport company Salihli Ltd. Şti., a certain B.T., was questioned about the accident for the first time by the police. B.T. stated that Şenocak Ltd. Şti. had requested a truck from them to transport some goods. The company had, however, put Şenocak Ltd. Şti. in touch with A.S., who provided transportation services with his truck upon request, and they had had no further involvement with the shipment in question. 22. In a further petition submitted by the applicant to the Sultanbeyli public prosecutor’s office on 23 May 2008, she expressed her concern that the investigation after the Kadıköy Assize Court’s decision had appeared to focus solely on the liability of the transport company Salihli Ltd. Şti., whereas both Şenocak Ltd. Şti., as the producer and/or the shipper of the goods, and A.S., as the owner of the truck, also bore responsibility for the accident on account of their failure to comply with the relevant legislation on the transport of dangerous goods. 23. On an unspecified date the Sultanbeyli public prosecutor asked the traffic branch of the Forensic Medicine Institute to prepare a report to determine the respective liability of Salihli Ltd. Şti. and Şenocak Ltd. Şti., or any others, for the accident in question. In its response dated 10 July 2008 the Forensic Medicine Institute stated that there was no information in the case file on Şenocak Ltd. Şti. and that, in the absence of such information, it could not report on the requested matters. 24. On 15 October 2008 S.Ş., the owner of Şenocak Ltd. Şti., was questioned about the accident for the first time by the police. S.Ş. stated that he had requested a truck from Salihli Ltd. Şti. to send goods to his company’s Antalya branch. A truck owned by A.S. had been provided to him by Salihli Ltd. Şti. and he had loaded it with the goods in question. He confirmed that the truck had been involved in an accident shortly after loading and that it and his goods had been destroyed in a fire. 25. Following the receipt of the above information, on 19 February 2009 the Forensic Medicine Institute submitted its report on the accident. It found that there was no information in the file that the truck in question had been loaded with inflammable goods by Şenocak Ltd. Şti. There was, furthermore, no information on the identity of the recipient of the shipment. Although containers bearing the name “Şenocak” had been found in the truck after the accident, there was no other evidence in the file to enable the Institute to determine who had loaded the truck. In those circumstances, it had not been possible to establish the liability of Şenocak Ltd. Şti., Salihli Ltd. Şti., or anyone else for the accident. 26. On 8 May 2009 the applicant submitted objections to the Forensic Medicine Institute’s report. She contested the finding that there had been no evidence to suggest the involvement of Şenocak Ltd. Şti. with the shipment in question. She argued that the owner of Şenocak Ltd. Şti. had made it clear in his police statement that the truck had been loaded with his company’s goods, which had consisted of chafing fuel. Moreover, in response to the compensation request she had made to the Sultanbeyli Civil Court of First Instance (see below paragraph 30 for further details), the owner of Şenocak Ltd. Şti. had stated, inter alia, that he had also suffered a loss as a result of the accident as he had lost all of his merchandise. A representative of Salihli Ltd. Şti. had similarly told the Sultanbeyli Civil Court of First Instance that the truck involved in the accident had been sent to Şenocak Ltd. Şti. for loading, accompanied by a delivery note prepared by them on 4 August 2006. In the applicant’s opinion, those statements provided sufficient proof that the inflammable goods loaded in the truck had belonged to Şenocak Ltd. Şti. On the basis of that information, and having regard to the legal requirements in the relevant legislation on the packaging, labelling, storing and transportation of inflammable goods, none of which had been observed in the instant case, it was clear that both Şenocak Ltd. Şti. and Salihli Şti., as well as the owner and driver of the truck, had been responsible for the accident. 27. On 25 May 2009 the Sultanbeyli prosecutor decided not to prosecute representatives of Salihli Ltd. Şti. and Şenocak Ltd. Şti. on the basis of the Forensic Medicine Institute’s report of 10 July 2008. In the decision, the public prosecutor did not respond to any of the applicant’s allegations. 28. On 17 June 2009 the applicant objected to that decision. Reiterating mainly the arguments she had raised in her objection to the Forensic Medicine Institute’s report, she submitted that the public prosecutor had failed to establish the facts of the case and had disregarded essential evidence in the investigation file which pointed to the representatives of Salihli Ltd. Şti. and Şenocak Ltd. Şti, A.S. and the deceased driver of the truck as being criminally liable for the accident. 29. On 23 July 2009 the Kadıköy Assize Court rejected the applicant’s objection, without responding to any of her arguments. 30. On 16 July 2007 the applicant brought an action for compensation before the Sultanbeyli Civil Court of First Instance against Şenocak Ltd. Şti., Salihli Ltd. Şti, the owner of the truck, A.S., the heirs of both dead truck drivers, and an insurance company. Reiterating the legal requirements for the packaging, labelling, storage and transportation of dangerous goods that she had referred to during the criminal proceedings, the applicant argued that the defendants had caused her husband’s death by their failure to comply with the relevant legislation. 31. On unspecified dates, representatives of Salihli Ltd. Şti. and Şenocak Ltd. Şti. responded to the applicant’s allegations, as noted in paragraph 26 above. 32. At the request of the Sultanbeyli Civil Court of First Instance, on 19 March 2012 three experts from the traffic branch of the Forensic Medicine Institute submitted a report (“the first report”) on the defendants’ liability for the accident in question, where they made the following findings: - Şenocak Ltd. Şti., which was the producer of the inflammable goods in question, had requested Salihli Ltd. Şti.’s services for the transportation of merchandise from its headquarters in Istanbul to its Antalya office; - Salihli Ltd. Şti. had subcontracted A.S. for the business; - in the consignment note it had prepared, Şenocak Ltd. Şti. had described the consignment as sixteen tonnes of raw material, without indicating that it consisted of inflammable goods; - the fire that had broken out upon impact with S.S.H.’s vehicle and that had claimed the applicant’s husband’s life had been caused by the inflammable goods loaded in the truck; - Şenocak Ltd. Şti. was liable for the accident because it had failed to comply with the consignor’s obligations set out in the relevant legislation; - Salihli Ltd. Şti. and A.S. were liable on account of their failure to pay heed to the type of raw material they had accepted, which had resulted in the transportation of dangerous goods in a truck which had not fulfilled the relevant criteria for such transportation; - A.S. was also liable for having unlawfully loaded other goods in the truck and accepting a passenger (the applicant’s husband); - the driver of the truck was liable owing to his failure to drive with care. In the light of those considerations, the Forensic Medicine Institute found that Şenocak Ltd. Şti. bore 40% of the liability for the accident, Salihli Ltd. Şti. and A.S. bore 20% each, while the remaining liability lay with the driver. 33. On 18 October 2012 Salihli Ltd. Şti. objected to the Forensic Medicine Institute’s report. 34. Following that objection, seven experts from the traffic branch of the Forensic Medicine Institute, including the three experts who had prepared the previous report, issued another report on 18 September 2013 (“the second report”). They found that while Salihli Ltd. Şti., Şenocak Ltd. Şti. and A.S. may all have disregarded their legal obligations on the transport of dangerous goods, the accident had been caused by the driver’s carelessness rather than the other defendants’ failure to comply with those obligations. They could not therefore be held accountable for the accident in any way. 35. On 19 November 2013 the applicant objected to the Forensic Medicine Institute’s report, which in her opinion conflicted with its previous report of 19 March 2012. The applicant reiterated that her husband had not died as a result of a simple traffic accident, but had burned to death because of the inflammable goods carried unlawfully in the truck, for which all the defendants bore responsibility. The applicant requested that the Sultanbeyli Civil Court of First Instance obtain a third report from independent experts to resolve the contradictions between the two reports prepared by the Forensic Medicine Institute. 36. At a hearing held on 29 April 2014, the civil court of first instance appointed a group of experts, consisting of a mechanical engineer and two professors of mechanical engineering and chemistry from Istanbul Technical University. The court asked them to comment on the contradictions between the two Forensic Medicine Institute reports and to state which report they agreed with. 37. In their report dated 13 November 2014 (“the third report”), the experts established at the outset that the action brought by the applicant concerned the death of her husband as a result of the burns he had sustained because of the fire caused by the accident. The examination in the instant case therefore had to focus not on the technical cause of the accident per se, which was what the second report had done, but on the reasons and the responsibility for the fire that had claimed her husband’s life. The experts stated in that connection that the fire had been caused by chafing fuel, which was a “highly inflammable liquid”, according to the Regulation on the Transport by Land of Dangerous Goods and which therefore had to be transported in accordance with the relevant legislation concerning the transportation of such dangerous substances. The truck in which the chafing fuel had been loaded in the instant case had, however, not been suitable for the transportation of dangerous goods: it had not been equipped with an electrical system to prevent short circuits and fire; it had had no warning signs; and the driver had not been trained in the transportation of such goods. Şenocak Ltd. Şti., as the producer of the chafing fuel, bore the principal liability (40%) for the fire on account of its failure to ensure the safe transportation of its merchandise in accordance with the relevant legal requirements. Salihli Ltd. Şti., which had procured the truck in question, and A.S., the owner and operator of the truck, were each 20% liable for agreeing to transport such dangerous goods in a vehicle unfit for the job. A.S. was further liable because he had accepted additional cargo in the truck. The remaining responsibility lay with the deceased driver, who had not kept a safe distance from the vehicle in front. On the basis of those findings, the experts stated that they agreed with the first report’s conclusions. 38. At a hearing held on 7 October 2015 the civil court of first instance decided to appoint an expert to calculate the applicant’s pecuniary damage, on the basis of the findings of the third report of 13 November 2014. 39. In a report dated 19 November 2015 the expert calculated the applicant’s pecuniary damage as 229,613 Turkish liras (TRY) (approximately 75,145 euros (EUR) at the material time). 40. According to the latest information in the case file, the compensation proceedings are still ongoing in the court of first instance. | 1 |
test | 001-141937 | ENG | HUN | CHAMBER | 2,014 | CASE OF BARNA v. HUNGARY (No. 2) | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano | 4. The applicant was born in 1957 and lives in Budapest. 5. On 25 January 2006 the applicant brought an action in compensation in the context of water damage in her condominium. 6. After holding several hearings and obtaining expert evidence, on 18 March 2010 the Buda Central District Court found for the applicant. 7. On 6 October 2010 the Budapest Regional Court reversed this judgment. 8. On 2 June 2011 the Supreme Court rejected, without an examination on the merits, the applicant’s petition for review since it did not meet the statutory requirements. 9. Act no. III of 1952 on the Code of Civil Procedure, as amended by Act no. XIX of 2006, provides as follows: “(1) The party, the intervener or the public prosecutor participating in the proceedings are entitled to file a written complaint with the court hearing the case complaining about an omission specified in subsection (2) allegedly committed by that court, requesting the court having competence for the adjudication of the complaint to establish the omission and, by setting an appropriate time-limit, to instruct – in the cases specified under points a) and c) of subsection (2) – the omitting court to perform the omitted procedural act or to pass the omitted decision, and to take – in the case specified under point b) of subsection (2) – the most effective action in the given case. (2) Such a complaint may be filed where: a) the law prescribes a time-limit for the court within which to complete the proceedings, to perform a procedural act or to pass a decision and the time-limit has elapsed without any result, b) a court has set a time-limit for the public prosecutor, the person participating in the proceedings, the authority or person requested to perform a procedural act but the time-limit has elapsed without any result and the court has failed to impose on the omitter the measures allowed by the law, c) the court has failed to comply with its obligation to complete the proceedings within a reasonable time on account of the lapse of such time since the court’s last measure on the merits which was sufficient for the court to perform or order to perform a procedural act but the court failed to do so. (3) No complaint shall be filed against orders related to evidentiary acts or decisions subject to a separate legal remedy. (4) The complaint may be withdrawn by the complainant at any time until a decision on the merits is taken by the court. Complaints withdrawn shall not be re-submitted.” “(1) The court hearing the case shall examine the complaint within eight days from its receipt, and if it finds the complaint well-founded, it shall, within thirty days, take or order to take appropriate measures in order to terminate the situation complained of. It shall inform the complainant of how the complaint has been settled. (2) If the court hearing the case finds the complaint ill-founded, it shall transmit the complaint to the adverse party who may file observations on it within eight days from its receipt. After the expiry of the time-limit the court shall, within eight days, forward the file – together with the observations – to the court having competence for adjudicating the complaint. In its communication, the court hearing the case shall set forth its reasons for not performing the omitted procedural act or not passing the omitted decision. (3) A complaint challenging an omission of the district court shall be adjudicated by the regional court sitting in a committee of three professional judges; a complaint challenging an omission of the regional court shall be adjudicated by the court of appeal sitting in a committee of three professional judges; a complaint challenging an omission of the court of appeal shall be adjudicated by the Kúria sitting in a committee of three professional judges; a complaint challenging an omission of the Kúria shall be adjudicated in camera by another committee of the Kúria, within fifteen days from the receipt of the case-file. (4) Where the court adjudicating the complaint grants the complaint, it shall, by setting a time-limit, invite the omitting court to take – in the cases specified in section 114/A subsection (2) points a) and c) – the action required for the proper progress of the case and – in the cases specified in section 114/A subsection (2) point b) – to take the most effective action. Except for the cases specified in section 114/A subsection (2) point a), the court adjudicating the complaint shall not instruct the court hearing the case to perform a particular procedural act. If the court finds the complaint ill-founded, it shall dismiss it in reasoned decision. Against this decision no appeal may be filed. (5) If the submitter of the complaint repeatedly submits an ill-founded complaint in the same case the court adjudicating the complaint may impose a fine on him. (6) The provisions governing the submission and adjudication of appeals against orders shall be applicable to [such] complaints.” | 1 |
test | 001-147034 | ENG | RUS | COMMITTEE | 2,014 | CASE OF VOROBYEV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention) | Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev | 4. The applicant was born in 1983 and lived in Nizhny Novgorod prior to the events of the case. 5. On 23 September 2005 the applicant was arrested on charges of robbery, theft, forgery and extortion. 6. On 11 April 2008 the Nizhniy Novgorod Regional Court found the applicant guilty as charged and gave him a custodial sentence. 7. On 21 August 2008 the Presidium of the Regional Court, by way of supervisory-review proceedings, quashed the judgment 11 April 2008 and remitted the case to the trial court for fresh examination. Referring to the gravity of the charges, it also ordered the applicant’s detention to continue for a further three months. 8. By orders of 17 November 2008 and 16 February and 19 May 2009, the authorised period of the applicant’s detention was extended. These orders cited the gravity of the charges and the possibility of the applicant’s absconding as the main reasons for the continued detention. 9. On 24 November 2009 the Regional Court found the applicant guilty of a number of grave crimes and sentenced him to a six years and one month’s imprisonment. 10. Between 24 September 2005 and 14 January 2009 the applicant was detained in remand prison IZ-52/1 of Nizhniy Novgorod. He submitted that the cells had been severely overcrowded and in a poor sanitary condition. | 1 |
test | 001-155374 | ENG | SVK | CHAMBER | 2,015 | CASE OF KOVÁROVÁ v. SLOVAKIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing) | Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 5. The applicant was born in 1947 and lives in Bratislava. 6. On 9 May 2007 the applicant lodged an action with the Bratislava V District Court (Okresný súd) seeking a ruling declaring that a meeting of flat owners in a block of flats held on 24 April 2007 was contrary to the law, and that the decisions adopted at that meeting were void. The defendant of the action was an entity with legal personality referred to as a community of owners of residential and non-residential premises in the given building (“the defendant”). Such entities are officially registered with the local District Authority (obvodný úrad). The defendant was so registered with the District Authority in Bratislava. 7. On 2 January 2008 a submission was made to the District Court by a lawyer indicating that he was acting on behalf of the defendant and informing the court that on 14 December 2007 the defendant had ceased legally to exist. In that connection he submitted a letter from the District Authority which indicated that the defendant had been struck out of the relevant register on that date, the context being that the administration of the building was no longer the responsibility of the defendant and that that responsibility had been transferred to a specialised agency. 8. On 24 January 2008 the applicant requested that a hearing scheduled before the District Court for 28 January 2008 be postponed sine die. She submitted that she had just learned of the striking out of the defendant by consulting the relevant register, and that she would make a further submission once she had analysed the situation, for which she needed time. The hearing scheduled for 28 January 2008 was accordingly adjourned. 9. On 3 March 2008 the District Court discontinued the proceedings, on the grounds that the defendant had ceased to exist and had no legal successor. In particular, the District Court held that neither the individual owners of the flats in the building nor the newly contracted administration agency could be considered as having succeeded to the defendant’s position in the proceedings. 10. On 20 March 2008 the applicant appealed (odvolanie), raising two principal arguments. First, she submitted that the administration agency was the successor to the original defendant, and that consequently the proceedings should have continued against it. Second, even assuming that the first contention was not correct, the court should not have terminated the proceedings but should rather have stayed them pending the outcome of another set of proceedings before the same District Court, in which a decision was being contested which had been taken at another meeting of the flat owners on 11 September 2007, to the effect that the defendant should be wound up (zrušenie). If that other set of proceedings ended with a ruling declaring the winding up of the original defendant void, its striking out of the given register would lose basis and the proceedings could continue against that defendant. More details about those other proceedings are set out below (see paragraphs 18 et seq.). 11. On 30 May 2008 the Bratislava Regional Court (Krajský súd) upheld the first-instance decision, noting that the defendant had been struck out of the relevant register and had thereby lost capacity to be a party to the proceedings, in which situation there was no alternative to a discontinuance of the proceedings. The relevant legal provisions were referred to, but no reasons were offered for the latter conclusion. 12. On 7 July 2008 the applicant appealed on points of law (dovolanie), relying on Article 237 (f) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended) (“the CCP”), under which such an appeal was admissible if the courts had prevented a party to the proceedings from pursuing a case before them. In particular, she argued that the Regional Court had provided neither any factual nor legal grounds for its conclusion, as a result of which it was not amenable to review. In addition, she pursued and further developed the same line of argument as in her appeal. 13. On 7 May 2009 the Supreme Court (Najvyšší súd) declared the applicant’s appeal on points of law inadmissible, holding that the shortcomings alleged by the applicant did not fall within the purview of Article 237 (f) of the CCP. This applied specifically to the alleged deficiency in the Regional Court’s reasoning and the alleged errors of fact and law in the lower courts’ decisions. In addition, in so far as the applicant had contested an error of procedure in that the courts had failed to stay the proceedings rather than to terminate them, the Supreme Court held that staying the proceedings was an option and not a duty of the court concerned, and that the fact that the present proceedings had not been stayed did not make out the admissibility ground cited by the applicant. As the appeal was not admissible, the Supreme Court did not examine the merits of the case. 14. On 17 August 2009 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). She directed the complaint against all three levels of the ordinary courts and pursued and further developed in principle the arguments described above. She considered that the discontinuance of the proceedings had been unlawful, submitted that it had been a mistake of the ordinary courts not to have examined the merits of her claim, and argued that this had amounted to a breach of her rights of access to court and to a fair hearing under Article 6 § 1 of the Convention. 15. On 16 December 2009 the Constitutional Court declared the complaint inadmissible. It considered it separately with reference to the individual levels of ordinary jurisdiction involved. As regards the alleged shortcomings in the proceedings leading to the Regional Court’s decision of 30 May 2008, it held that the applicant had failed to submit her complaint within the statutory time-limit of two months. As regards the Supreme Court, it observed that the central argument in the applicant’s appeal on points of law was the alleged error of law. In that regard, it went on to hold, inter alia, that: “The Supreme Court ... rightfully emphasised ... that, as there were no grounds on which the applicant’s appeal on points of law would be admissible, it was not possible for it to review the merits of the Regional Court’s decision. The Supreme Court did not exclude in a binding manner that the decision of the Regional Court was the result of a wrongful legal assessment of the matter, nor did it exclude the possibility of there having been another error in the proceedings before it which had resulted in a wrongful decision on the merits.” 16. Nevertheless, the Constitutional Court found that, as regards the admissibility of the applicant’s appeal, the Supreme Court had given relevant reasons for its decision and that that decision was not arbitrary. In particular, it also noted that, should the other set of proceedings end with a ruling declaring the winding up of the defendant void, this would create for the applicant the opportunity to seek reopening of the proceedings in her case. Future examination of that case on the merits thus could not be completely excluded. However, at the same time, the Constitutional Court noted that even if the winding up of the defendant were to be declared void, this would not automatically mean that the defendant would legally come into existence once more. The coming into being of a legal entity such as the defendant required incorporation, which in turn necessitated a decision of the District Authority, and could not result directly from a judicial decision. 17. The Constitutional Court’s decision was served on the applicant on 5 February 2010. 18. On 26 September 2007 an individual brought proceedings against the above-mentioned defendant as well as the above-mentioned newly appointed management agency, seeking a ruling declaring void a decision to wind up the defendant taken at a meeting of flat owners in the block held on 11 September 2007 (see paragraph 10 above). 19. After the first dismissal of the action was quashed following the claimant’s appeal, the action was again dismissed by the District Court on 4 April 2012 and, following the claimant’s appeal, by the Regional Court on 19 March 2014. 20. On 14 July 2014 the claimant challenged the judgments last mentioned by way of a complaint to the Constitutional Court. The complaint appears to be still pending. | 1 |
test | 001-183554 | ENG | ROU | COMMITTEE | 2,018 | CASE OF UȚĂ AND OTHERS v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. | 1 |
test | 001-147601 | ENG | ROU | CHAMBER | 2,014 | CASE OF ION CÂRSTEA v. ROMANIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 5. The applicant was born in 1949 and lives in Craiova. He was, at the time of the events, a lecturer at Craiova University. 6. On 8 September 2001 the local newspaper Republica Oltenia published an article entitled “Feature story on sex-blackmail professor” (“Poveste de lung metraj cu un professor de sex-şantaj”). The article, written by R.C., was illustrated by two photographs showing a man and a woman naked and having sex. The man’s face was not visible. On the photographs were the handwritten words “the man in the photos is Ion Cârstea, university as.[sistant] at the electrotechnical faculty”. One of the photographs also appeared at the top of the front page of the newspaper. 7. The article started by mentioning that the man in the photographs was a university professor, an important person in society, who was involved in bribery, blackmail, child sex abuse and sexual deviance, the details of which would be given in the article. 8. The article continued by stating that in 1992 the applicant’s students had complained to the university dean that he was not very friendly during sessions and used to demand money from them. The applicant was also branded as litigious, because he had three trials pending before the courts, two of them brought with the purpose of contesting decisions taken by his university superiors. 9. Further on, the article contained the following statements: In 1982 a girl, so young that she was not even eighteen, got pregnant. Abortion being illegal, she decided to ask her second cousin, a university assistant at the time, to help her find a doctor. The cousin took advantage of the girl’s desperate situation. He might have told her that he would tell her mother if she did not let him “taste” her at least once. The atmosphere at the time may be inferred from the black and white photos attached. They were taken ... by the cousin himself. Apparently, even from a young age, Ion Cârstea had unorthodox habits. After satisfying his needs, Cârstea remembered that in fact he could not help his cousin, and advised her to sell some jewellery in order to raise money for a doctor. To develop the photos, Cârstea appealed to a repeat student and amateur photographer ... “In your fourth or fifth year you will have an exam with me and won’t pass” Cârstea said, according to the photographer. The student gave in to the blackmail, but after developing only gave Cârstea 24 photos instead of 36. The gesture had its logic, because in 1990, when our student managed to proceed to the fifth year, Cârstea tried to raise the stakes, by asking for a non-reimbursable loan of 130 [German] marks to pass an exam. The student was upset and went to the prosecutor’s office: “I made a complaint to the prosecutor’s office in [19]90, accusing him of blackmail. I submitted the relevant evidence, namely the first [set of] photos, because he later came to me with six more films, also porn ... the prosecutor said that we were dealing with a university professor and should leave him alone, not amplify the case. Why not amplify the case? We’ll tell you: because between Cârstea and M.I., the University dean, there is a special relationship, which might also be based on blackmail ... We know that [M.]I. sold Cârstea a flat, but this doesn’t say much. That would be another case of blackmail, because we heard that Cârstea’s obsession with audio-video recordings remained unchanged ... As for the prosecutors who received a complaint from the blackmailed photographer, they were in no hurry to go to talk to the girl in the photos. That would have obliged them to open an investigation ex officio. Instead they sent the victim, the photographer-student, to take statements. And he obtained a statement signed by the girl’s mother, while the actress in the photos wrote on them “The man in the photo is Ion Cârstea, university as. [sistant] at the electrotechnical faculty.” Of course such evidence obtained under these circumstances had no legal relevance. The case would normally be greeted with a gracious non-indictment. ... Our photographer can hardly wait for justice to be done and to finish his studies now, twelve years after he proceeded to the fifth year.” 10. On 6 November 2001 the applicant lodged a criminal complaint with the Craiova District Court against the journalist R.C. and B.B.O., editor-in-chief of the newspaper, accusing them of defamation, an offence under Article 206 of the Criminal Code in force at the time. The applicant alleged that the facts described in the article were not true and that, together with the photographs, they had seriously damaged his reputation. In this connection, the applicant claimed from the two defendants 1 billion lei (RON) for non-pecuniary damage and RON 500,000,000 for pecuniary damage. As to the compensation for pecuniary damage the applicant alleged that owing to the publication of the article and the photographs in question he could no longer be promoted to a higher position within the university. 11. R.C. and B.B.O. did not appear before the court, although they had been summoned on several occasions. 12. Two witnesses for the applicant were heard by the court. M.G. stated that as far as he knew the applicant, the facts described in the article in dispute were not true. P.T. made a statement in support of the compensation claimed by the applicant for pecuniary damage. 13. On 27 June 2002 the Craiova District Court acquitted the two defendants. It decided that they had not intended to defame the applicant, since they had merely brought to the public’s attention certain facts mentioned by other people, with whom the applicant did not have a good relationship. With respect to the photographs complained about, the court briefly held that “... it is not clear from the photos whether the person photographed is or is not the injured party [the applicant]”. The court further rejected the applicant’s compensation claim, stating that there was no connection between the defendants’ acts and the damage alleged. 14. An appeal on points of law (recurs) brought by the applicant against this decision was allowed by the Dolj County Court on 31 October 2003. It ordered a retrial of the case, due to the fact that the two defendants had not been identified and heard by the lower court. 15. A search conducted by the police concluded that B.B.O. had written the article in question under the alias of R.C. B.B.O. did not appear before the court, although he had been summoned. 16. On 8 April 2005 the Craiova District Court acquitted B.B.O. and rejected the applicant’s claim for compensation. Quoting the Court’s caselaw on freedom of expression, the Craiova District Court held that the applicant was a public figure and was hence exposed to criticism. The court also held that the defendant had not intended to defame the applicant, as he had just published information that he had collected from other people, such as students, professors, and so on. It also held: “The publication of the compromising photos accompanied by comments concerning the actors’ identity is a shocking way of exercising the freedom of expression guaranteed by Article 10 of the Convention and Article 30 of the Romanian Constitution. ... Restricting the ability to publish documents because [they] might harm a person’s dignity would not be a necessary measure in a democratic society where the journalist’s sources were credible. As regards crimes against dignity committed through the media, a journalist’s investigation is always important and is based on direct and indirect sources, official documents and documents collected through leaked information, official and private statements, some confidential, not all free from doubt. What must be proved beyond any doubt is the journalist’s bad faith which, in the current case, has not been proved. The statements of witnesses M.G. and P.T., colleagues and friends of the applicant, with respect to his personality and professional reputation are credible, but strictly only prove the perception of these people.” The court analysed the applicant’s claim for compensation from the standpoint of Article 998 of the Civil Code and decided to reject the claim for non-pecuniary damage since the defendant’s guilt had not been proved, and the claim for pecuniary damage as unsubstantiated. 17. The applicant lodged an appeal on points of law against this decision, alleging that the defendant had not been summoned at the correct address and that, in his absence, the judges could not have correctly established the facts or whether he had acted in good or bad faith. The applicant further submitted that B.B.O. had not acted in good faith. Firstly, because he had never contacted him for his version of the facts and secondly, because according to his criminal record attached to the file, the journalist had several previous convictions for slander and defamation. The applicant also alleged that the journalist had made accusations which attracted criminal sanctions, and therefore their truthfulness could and should have been verified by the courts. 18. On 11 November 2005 the Dolj County Court finally dismissed the applicant’s appeal on points of law as ill-founded. The court held that, even though it may have been defamatory, having in mind the applicant’s profession and the media’s role in a democratic society, the article in question had just drawn attention to the behaviour of a public figure in the exercise of his functions. The court further held that the defendant journalist had wanted to “expose certain backstage games and interests in a higher education institution ... with a view to remedying the situation and maintaining good educational process”. The applicant’s specific reasons for appealing on points of law, such as the incorrect summoning and the failure to hear the defendant’s statement and verify the truthfulness of the allegations published by the defendant, were not analysed by the court. | 1 |
test | 001-175153 | ENG | GEO | CHAMBER | 2,017 | CASE OF JUGHELI AND OTHERS v. GEORGIA | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev | 7. The applicants, all Georgian nationals, were born in 1946, 1947 and 1957 respectively. At the material time they lived in different flats in a residential block (“the building”) constructed in 1952 and situated at 4 Uznadze Street in Tbilisi. 8. The building is located in the city centre, in close proximity (approximately 4 metres) to the “Tboelectrocentrali” thermal power plant (“the plant”). The plant was constructed in 1911 and reconstructed at a later date. It started operations in 1939. For several decades it burned coal to generate power, before replacing it with natural gas. The plant provided the adjacent residential areas with electricity and heat. 9. Several accidents have been reported throughout the plant’s history. An accident on 10 April 1996 rendered it inoperative for more than thirty days. An expert report concerning the incident disclosed that the main reason behind the accident was the fact that no major repairs had been carried out there since 1986. 10. On 2 November 1999 Presidential Decree No. 613 was issued, stating that the plant was to be privatised and sold directly to a private company. The privatisation agreement between the Government and the company was concluded on 6 April 2000. 11. On 2 February 2001 the plant partially ceased generating power owing to financial problems. However, it continued to use some of the generators. 12. According to the applicants, while operational the plant’s dangerous activities were not subject to the relevant regulations, as a result of which, in addition to some other alleged nuisances, it emitted various toxic substances into the atmosphere negatively affecting their well-being. 13. On unspecified dates the applicants and other residents of the building lodged complaints with the municipal authorities, alleging that nuisances were emanating from the plant such as air, noise and electromagnetic pollution and water leakage. By official letters dated 22 March 2000, 19 October 2000 and 16 January 2001 the Tbilisi City Hall (“the City Hall”) acknowledged that the residents of the building had been affected by the nuisances they had complained of. It advised the central Government that relocation of the plant would not be in the public interest in view of the acute energy crisis in the country and suggested that the residents of the affected area be offered electricity and heat free of charge as a form of compensation. 14. In the letter dated 22 March 2000 the City Hall asked the plant to implement certain environmental protection measures, including the installation of chimney filters to reduce the air pollution emanating from the plant. The request was left unaddressed. 15. On 1 October 2001, in an official response to a query by the applicants, the City Hall confirmed that the plant’s activities fell within the “first category” within the meaning of the Environmental Permits Act (see paragraphs 43-44 below) and that the Ministry of the Environment and Natural Resources (“the Ministry of the Environment”) was responsible for issuing the relevant permit. 16. On an unspecified date in the summer of 2000 the applicants and other residents of the building brought an action for damages against the plant concerning the environmental nuisances emanating from the plant. A friendly settlement was reached between the parties on 12 December 2000, according to which the claimants would renounce their claims in exchange for a commitment by the plant’s management to provide them with hot water, electricity and heat free of charge. Owing to technical difficulties and a lack of cooperation between the relevant authorities, the friendly settlement was left unenforced. 17. On 25 October 2001 the applicants and three other residents of the building (“the claimants”) brought a fresh action against the plant and other respondents including the Tbilisi electricity distribution company, AES TELASI JSC (“AES”), the City Hall and the Ministry of the Environment. They claimed compensation for pecuniary and non-pecuniary damage for the harm caused to their health and well-being by the air, noise and electromagnetic pollution and water leakage emanating from the plant. They relied on privately commissioned independent expert opinions in support of their complaints. 18. On 7 March and 23 September 2002 the Tbilisi Regional Court granted a request by the claimants and ordered the Ministry of Justice, the Ministry of Labour, Health and Social Affairs and the Ministry of the Environment to arrange a number of expert examinations. The latter were intended to measure the environmental pollution caused by the plant, clarify how the associated harmful effects had affected the claimants’ health and might have endangered human life, and identify appropriate remedies. 19. An expert examination dated 28 October 2002 and carried out by the Expertise and Special Research Centre at the Ministry of Justice concluded as follows: “As the “Tboelectrocentrali” plant does not have a [buffer] zone and is immediately adjacent to a residential building, the plant’s chimneys must be equipped with appropriate filters and other equipment to protect the population from the hazardous gases.” 20. On 17 January 2003 the Institute of Environmental Protection (“the IEP”) at the Ministry of Environment issued an expert opinion on the air pollution and noise levels in the residential area concerned. It noted that while the plant’s equipment responsible for the emission of toxic substances stood idle, it was impossible to determine the real pollution situation with which the residents had had to cope for years and noted that “the results were considerably minimised compared to the possible real picture.” 21. The expert opinion disclosed that the plant’s technical compliance document was defective as it did not reveal all the chemical substances known to be emitted into the atmosphere in the course of natural gas burning. That document also incorrectly indicated the height of the chimneys as 30.8 metres instead of the actual 27 metres, which could lead to the pollution data being misleadingly decreased. 22. With regard to the air pollution and the possible impact upon the residents of the building, the expert opinion concluded as follows: “Considering the fact that the plant does not have a [buffer] zone and is immediately adjacent to a residential building ..., taking into account the direction of the wind, a whole bouquet of emissions is reaching into the homes ... negatively affecting the population living in the adjacent area.” 23. The opinion specified that even where individual hazardous substances were considered to be within the acceptable margin, it was necessary to consider the combined impact of various substances upon the health of the population as the combined toxicity might go beyond the acceptable limits. It continued to note in this connection that the concentrated toxicity of the gases emitted by the plant was twice the norm and the residents of the building concerned had to live in conditions where the concentration of toxic substances surpassed the acceptable limits twenty-four hours a day. The IEP proposed that the competent municipal authorities either ban those industrial activities or ensure the plant’s relocation outside the town, where at least a buffer zone could be established. 24. On 4 March 2003 the Institute of Scientific Research in Health and Hygiene at the Ministry of Labour, Health and Social Affairs responded to a query by the applicants and listed the diseases that might potentially be caused by excessive concentrations in the air of substances such as SO2, CO, NO2, smoke and black dust. These were mucocutaneous disorders, conjunctivitis, bronchitis, bronchopulmonary and other pulmonary diseases, allergies, different types of cardiovascular disease and anoxemia (low oxygen levels in the blood), which could lead to other serious disorders. 25. On 17 January 2003 the IEP issued an expert opinion concerning the noise levels in the building. Without specifying the noise levels in the individual flats of the applicants, the opinion concluded in generic terms that “the residential building ... situated at 4 Uznadze Street [was] affected by noise in excess of the permissible limits.” 26. On 6 February 2004 the IEP expert carried out an additional investigation aimed at determining the noise levels in the individual flats of the claimants. It concluded that the permissible levels of noise were exceeded only with respect to two claimants and not in the applicants’ apartments. 27. An expert opinion issued by the IEP on 7 November 2002 stated that the intensity of the electromagnetic waves did not exceed the permissible levels. 28. The expert opinion produced by the Ministry of Labour, Health and Social Affairs on 17 January 2003 disclosed that, in some instances, the intensity of the electromagnetic fields in the vicinity of the building exceeded the permissible levels. It concluded however that it was impossible to establish the exact source of the electromagnetic pollution. 29. On 13 May 2003 the court ordered the Forensic Medical Examination Centre at the Ministry of Labour, Health and Social Affairs to examine the health of four of the claimants. The third applicant and another claimant were not included, without any reasons being given for their exclusion. Its experts were asked to give an opinion on whether the claimants were suffering from any diseases which might have been caused by the pollution emanating from the plant. 30. The Forensic Medical Examination Centre carried out the courtcommissioned examination between 7 August and 17 September 2003. A panel of experts concluded that the four claimants “[had] been affected by a combined impact of protracted exposure to harmful factors such as SO2, NO, CO2 as well as black dust, noise and electromagnetic pollution negatively impacting their health.” The first and second applicants were found to be suffering from largely similar health conditions such as neurasthenia and asthenic syndrome. The panel considered it “possible that the asthenic syndrome and neurasthenia ... [had been] caused by the prolonged and combined effect of being exposed to harmful factors.” It added that “the worsening of the health conditions of the persons examined [had not been] excluded.” 31. On 12 March 2004 the Tbilisi Regional Court dismissed the claims of the applicants and another claimant, but partially allowed the claims of two other claimants (“the successful claimants”) with respect to the noise pollution emitted by the plant’s generators. Relying on the expert examination of the IEP concerning the noise levels, the court found that only the two successful claimants’ flats were affected by noise in excess of the permissible limits. It awarded them 5,000 Georgian laris (GEL – equivalent to 1,981 euros (EUR)) each, holding the plant, the City Hall, and the Ministry of the Environment jointly liable: “... Both the City Hall and the Ministry failed to fulfil the obligations imposed on them by law. That is to say, despite the claimants’ numerous requests and complaints, [the authorities concerned] failed to take specific measures to ensure an environment safe enough for the claimants’ health.” 32. Furthermore, acknowledging that the plant was responsible for the infiltration of water into the foundations of the building, the court ordered it to halt the leakage and make the necessary repairs to the ruptured walls. 33. As regards the air pollution complained of, the court found that the material before it did not prove a causal link between the emissions and the claimants’ health problems described in the Forensic Medical Examination Centre’s expert report. It further suggested that the third applicant and another claimant had refused to undergo the medical examination. 34. While the court accepted the experts’ conclusions that the plant had breached certain environmental standards by not having filters and other purification equipment in place to decrease the emission of toxic substances, it refused to order the plant to install such equipment on the grounds that the sole remedy requested by the claimants had been compensation for the damage caused by the pollution. 35. On 4 May 2004 the claimants appealed to the Supreme Court. Relying on the Court’s judgment in the case of López Ostra v. Spain (9 December 1994, Series A no. 303C) and the findings of the courtcommissioned expert examinations at the domestic level, they reiterated their complaints about the lack of a buffer zone and the inherent risk of pollution, the absence of purification equipment over the plant’s chimneys and its impact upon their health and well-being, and the defectiveness of the plant’s technical compliance document. They further disagreed with the lower court’s findings with respect to the alleged noise pollution emanating from the plant. 36. On 21 April 2005 the Supreme Court delivered a final judgment in the case. It upheld the appeals of the two already successful claimants and ordered the plant’s operators, the City Hall and the Ministry of the Environment to pay them, jointly, GEL 7,000 (EUR 2,938) each for the deterioration of their health caused by the noise pollution that persisted after the partial termination of the plant’s activities on 2 February 2001 and affected them individually (see paragraphs 11 and 26 above). In addition, it ordered the plant to pay GEL 50 (EUR 21) monthly to one claimant and GEL 100 (EUR 42) to the other. It further upheld the lower court’s finding concerning the plant’s responsibility for the infiltration of water into the foundations of the building. 37. The Supreme Court rejected the complaint concerning the electromagnetic pollution as unsubstantiated. 38. As regards the submissions concerning the air pollution, the Supreme Court dismissed them as unsubstantiated. It reasoned that the claimants’ reference to violations of environmental standards, regardless of their validity, could not have served as a basis for awarding damages for air pollution considering that they had not requested that the plant’s permit be revoked, that filters be installed over the chimneys, that other environmental protection measures be implemented, or that the hazardous activities be banned or relocated. 39. The court further noted that the Court’s findings in the case of López Ostra v. Spain could not serve as grounds for requesting damages. It highlighted the fact that the plant in the instant case had been operational since 1939 while the flats had been built at a later date in 1952. It consequently concluded that the applicants had accepted the associated dangers when choosing to settle near the plant and were effectively barred from claiming any damages in that respect within the meaning of the Compensation for Damage Inflicted by Dangerous Substances Act (see paragraph 47 below). It thus concluded that the appellants had been under a duty to tolerate nuisances such as noise, smells, steam and gases caused by the ordinary industrial activities of the neighbouring plant, whose essential purpose had been to supply the nearby buildings with heating and hot water. The court interpreted the applicants’ unenforced friendly settlement in an earlier set of proceedings (see paragraph 16 above) as their acceptance of the ecological discomfort. 40. The Supreme Court further reasoned that at the time of the proceedings the plant had suspended most of its operations and had no longer been emitting any substances into the air. Consequently, the appellants were no longer being affected by the pollution. Moreover, they had failed, in the court’s opinion, to show what specific pecuniary damage, if any, had been sustained as a result of the air pollution in the previous years. It was further noted that the appellants had not specified the costs which they had incurred or would inevitably incur in the future for medical treatment for their health problems. | 1 |
test | 001-182847 | ENG | TUR | CHAMBER | 2,018 | CASE OF SANCAKLI v. TURKEY | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström | 5. The applicant was born in 1955 and lives in Istanbul. 6. On 2 October 2004 the Büyükçekmece Magistrates’ Court issued a search warrant allowing the gendarmerie to conduct searches of public places and suspected persons in a designated area. 7. Late at night on the same day, the gendarmerie carried out a search at the Sancak Hotel, which is owned by the applicant. The records drawn up afterwards noted that during the course of the search, a certain M.Ş. had approached the plain-clothes officers outside the hotel and told them that he had a girl inside. It was then established that M.Ş. trafficked women. He and a woman in the hotel were both taken to the gendarmerie headquarters. 8. The search records, which were prepared a few hours after the search and signed by the hotel’s manager, showed that five women of foreign nationalities had been staying at the hotel with some men and that they had all been taken to the gendarmerie headquarters. 9. On 3 October 2004 the gendarmerie questioned several men as suspects and five women as victims. They all confirmed that they had been staying at the hotel for prostitution purposes. Some of the women were asked whether they knew of any complicity between the traffickers and the management of Sancak Hotel, to which they responded in the negative. 10. On the same day the applicant was arrested and taken into the custody of the gendarmerie on suspicion of facilitating prostitution. 11. On 4 October 2004 the applicant gave statements to the gendarmerie. He denied having provided premises for prostitution. He argued that he did not allow procurers into his hotel and had never seen M.Ş. before. 12. On the same day, the gendarmerie also questioned the hotel’s manager, who stated that both he and the applicant were very strict about keeping procurers out of their hotel. 13. On 30 May 2005 the Büyükçekmece Public Prosecutor issued an indictment against the applicant and three other persons. He accused them of failure to obey an order from an official authority under Article 526 § 1 of the Criminal Code (Law no. 765) in force at the time, on the ground that they had provided premises for prostitution in their hotels. 14. On 1 June 2005 the Misdemeanours Act (Law no. 5326) and the new Code of Criminal Procedure (Law no. 5271) entered into force. 15. On 10 June 2005 the Büyükçekmece Magistrates’ Court assessed the case without holding a hearing. Establishing that the accused had provided premises for prostitution in their hotels, it held that the applicant had failed to obey the orders of an official authority as charged and should be punished accordingly. It then sentenced him to an administrative fine of 100 Turkish liras (TRY) pursuant to Section 32 of the Misdemeanours Act (Law no. 5326). 16. The applicant objected to that decision, arguing that his defence rights had been restricted in that the court had sentenced him to the fine solely on the basis of the statements taken previously by the police, and without hearing him in person. He maintained that he accepted clients into his hotel in compliance with the relevant regulation and that he could not be expected to refuse to offer accommodation to foreign nationals or to question their motives for staying there. 17. On 3 February 2006 after examining the case on the basis of the case file, the Bakırköy Assize Court upheld the decision of the Magistrates’ Court. That decision was final. 18. On 24 May 2006 an official letter was sent to the applicant. It was indicated on the envelope that the applicant was invited to a hearing concerning his case, which would be held on 10 July 2006. The envelope did not show any confirmation that the letter had been served on him. 19. The applicant’s lawyer stated that he had received a copy of the final decision at the registry of the Büyükçekmece Magistrates’ Court on 11 July 2006. In support of his claim, he submitted a copy of the Assize Court’s decision, on which a lawyer working at his office had noted that he had been served with the copy in person on that date. That document was later stamped and certified as an authentic copy by the registry of the domestic court. 20. Following communication of the present application, on 21 December 2009 a public prosecutor prepared an assessment report, summarising the events in the case. He concluded that the final decision had been served on the applicant on 26 May 2006. 21. On 2 January 2014 both the applicant and the Government were asked under Rule 54 § 2 (c) of the Rules of Court to provide the Court with a document indicating the notification date of the final decision by 16 January 2014 at the latest. The parties did not respond to that request. 22. On 3 November 2017 the Government were once again asked to provide documents regarding the commencement of the six-month timelimit, in particular the content of the envelope from the Büyükçekmece Magistrates’ Court dated 24 May 2006 and the document in support of the public prosecutor’s claim that the final decision had been served on the applicant on 26 May 2006. On 30 November 2017 the Government informed the Court that they could not find the requested documents. | 0 |
test | 001-174965 | ENG | HRV | CHAMBER | 2,017 | CASE OF ZDJELAR AND OTHERS v. CROATIA | 4 | No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 5. During 1991 and 1992 Serbian paramilitary forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). Part of the Zdjelar family – father Milan, mother Anđelija, daughter Dragica (the third applicant) and sons Janko (the first applicant), Slavko (the eighth applicant) and Čedo (the ninth applicant) – lived in Crni Potok, a village situated in the Krajina. At the beginning of August 1995 the Croatian authorities announced a campaign of military operation with the aim of regaining control over the Krajina. The operation was codenamed Storm and lasted from 4 to 7 August 1995. Before that action, the vast majority of the population of the Krajina had fled Croatia, initially for Bosnia and Herzegovina, but later many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000. 6. On 11 October 2001, one S.K. submitted to the State Attorney’s Office (Državno odvjetništvo Republike Hrvatske, hereinafter the “SAO”) a list of persons killed during and after Operation Storm. Milan Zdjelar, the applicants’ father, was on the list and next to his name was a note that he had been shot in the head and a leg on 8 August 1995 by members of the Croatian Army’s “Tigers” brigade. On 16 October the SAO forwarded that list to the Ministry of the Interior. 7. On 25 October 2001 the Gvozd police photographed the site of Milan Zdjelar’s grave. 8. On 29 October 2001 the Gvozd police interviewed Dragica Zdjelar, the third applicant, who said that her father had been killed on 8 August 1995 in Crni Potok. 9. On an unspecified date in 2002 the body of Milan Zdjelar was exhumed and a post mortem was carried out in the Zagreb Šalata Hospital on 20 September 2002. The cause of death was not established and the only injury noted was a broken collar bone. 10. On 23 March 2004 the Gvozd police again interviewed Dragica Zdjelar. She said that of her family members, only she and her father had remained in Crni Potok after the beginning of Operation Storm. On 8 August 1995 at about 12.50 p.m. she had been sitting with her father Milan in front of their house, situated on a hill in Crni Potok, about a hundred metres away from the unpaved main road. A military transport vehicle had appeared on that road, coming from the direction of the village of Gojkovac. When it drew level with their house the vehicle had stopped and three soldiers, dressed in camouflage uniforms, had got out and started to walk towards her and her father. Her father had then said that he did not wish to wait for the soldiers but would run into the woods. When he started to run, she had followed him and then heard three gunshots. She had hidden in the grass and had seen her father shot twice, in the chest and the leg. He had died soon afterwards. The soldiers had returned to the vehicle and continued in the direction of Topusko. The soldiers who had killed her father had been from the “Tigers” brigade. She had hidden in the woods for two days while her father lay dead in the grass. When she returned from the woods she had reported the matter to the Croatian Army and had been given food by some soldiers, who had also buried her father. 11. On 24 March 2004 the Gvozd police interviewed Anđelija Zdjelar, who had no relevant information to give them about the circumstances in which her husband had been killed. 12. On 9 April 2004 the Sisačko-moslavačka Police Department (Policijska uprava sisačko-moslavačka) sent a report to the Sisak County State Attorney (Županijski državni odvjetnik Sisak) stating that Dragica Zdjelar had alleged that on 8 August 1995 her father Milan Zdjelar had been killed by Croatian soldiers, members of the “Tigers” brigade. 13. On 29 July 2005 the State Attorney’s Office issued a document concerning enquiries into the killings of civilians between 1991 and 1995. The document was addressed to the County State Attorney’s Offices, which were instructed to examine all the information collected to date on the killings of civilians during that period and to concentrate their activities on identifying the perpetrators and gathering the relevant evidence in order to instigate criminal proceedings. 14. On 26 September 2005 the applicants and their mother lodged a criminal complaint with the SAO in connection with the killing of Milan Zdjelar, classifying the offence as a war crime against a civilian and alleging that the victim had been of Serbian ethnic origin, unarmed and never involved in any military activity during the war in Croatia. 15. On 29 September 2005 the SAO referred the case to the Sisak County State Attorney’s Office, requesting an investigation into the killing of Milan Zdjelar. 16. Between October 2005 and February 2007 the State Attorney’s Office asked the police about the progress of the investigation on several occasions. Each time the police replied that there had been no progress. 17. On an unspecified date the police asked the Military Police Administration (Uprava Vojne Policije, hereinafter the “MOP”) for information about the killing of Milan Zdjelar. On 7 February 2007 the MOP answered that they had no relevant information. This was forwarded to the Sisak State Attorney’s Office on 13 February 2007. 18. On several occasions between September 2007 and July 2008 the State Attorney’s Office asked the police about the progress of the investigation. Each time the police replied that there had been no progress. 19. On 9 October 2008 the State Attorney’s Office issued an instruction for implementation of the Criminal Code and the Code of Criminal Procedure to the County State Attorney’s Offices, in which they indicated that an inspection of the work of these Offices had highlighted two main problems: the possible partiality of persons involved in the pending proceedings as a result of the ethnicity of the victims or the perpetrators; and the problem of trials in absentia. The instruction advocated the impartial investigation of all war crimes, irrespective of the ethnicity of those involved, whether victims or perpetrators, and stressed the duties of those working for the State Attorney in that respect. 20. On 30 December 2008 the Sisak State Attorney’s Office asked the Investigation Department of the Sisak County Court to hear evidence from Dragica Zdjelar. This request was complied with on 25 March 2009, when an investigating judge of that court heard evidence from her. Dragica Zdjelar repeated her earlier statement. 21. On 11 May 2009 the police interviewed F.O. and F.K., both of whom were neighbours of the Zdjelar family in Crni Potok. F.K. confirmed that it had been soldiers from the Croatian Army who had come to the village when Milan Zdjelar had been killed. They had no other relevant information about possible perpetrators. 22. On 12 May 2009 the police informed the Sisak State Attorney’s Office that they had asked the Ministry of Defence for information regarding the members of brigade 153 of the Croatian Army who had arrived in Crni Potok after Operation Storm and the killing of Milan Zdjelar. On 20 July 2009 the Ministry of Defence informed the police that Milan Zdjelar had been buried by members of brigade 153 of the Croatian Army which had been under the command of a person named M., and provided a list of all members of that brigade with that name. One of them, M.Š., had already died. 23. Between 26 January and 3 February 2010 the police interviewed five former Croatian soldiers, A.A., B.J., N.S., G.G. and M.T., all members of the First Brigade of the Croatian army, also called the “Tigers”. None of them had any knowledge about the killing of M.Z. or any other civilians during Operation Storm. 24. On 15 February 2010, in answer to an inquiry from the SAO, the Sisak State Attorney’s Office drew up a short report on the case. There had been no significant progress. 25. On 9 and 16 March 2010 the police interviewed M.J., M.L. and M.M., members of smaller army units belonging to brigade 153 of the Croatian Army. M.J., a former member of the engineering unit, said that his unit had comprised between three and five soldiers and that he had never witnessed the killing of any civilians by any of them. M.L., a former commander of logistics in the artillery unit, stated that his unit had never encountered any civilians at any time during Operation Storm, with the exception of a few in Topusko, to whom they had given food and drink. Most of the villages they had passed through had had no name signs. He had no information to give them about the killing of Milan Zdjelar. M.M. had been a soldier in the unit under the command of I.P., and the smaller unit to which he had belonged had been under the command of K. M.M. had no information to give them about the killing of Milan Zdjelar and denied any involvement of his unit in the killing of civilians during Operation Storm. 26. On several occasions between May and December 2011 the State Attorney’s Office asked the police about the progress of the investigation. Each time the police replied that there had been no progress. 27. In a separate development, on 8 October 2012, Ž.L., who had been a member of the “Tigers” brigade for about a month in 1994, after which he had been transferred to the Third Battalion, lodged a criminal complaint with the SAO against P.M. – the Minister for war veterans – and others for alleged abuse of authority. In that complaint Ž.L. mentioned the killing of a civilian or civilians in Crni Potok, a few days after Operation Storm. He alleged that the crime had been “tolerated by the command of the Third Battalion (bojna) of the First Brigade of the Croatian Army (“gbr.” which stands for “gardijska brigada”) whose commander had been M.A. On 2 November 2012 the SAO forwarded that information to the State Attorney’s Office in Sisak, which forwarded it to the police on 14 November 2012. 28. On 22 November 2012 the police interviewed Ž.L. He said that during Operation Storm, the battalion had been in the village of Krznarić and had then gone on to Crni Potok. A person in charge of logistics, named M., had brought in a civilian, saying that he was a “četnik” (derogatory term for a Serbian nationalist or a member of Serbian paramilitary forces). Ž.L. described the man in question in detail. Soon the vice-commander P.Z. and the commander of the Third Company (satnija) J.M. had arrived and had taken the man away somewhere. P.Z. and J.M. had returned after about twenty minutes, and when questioned about the whereabouts of the man they had taken away, P.Z. had answered that he had “drifted in the river”. After some time they had heard firing on a hilltop above them. Ž.L. and another soldier, M.T., had started walking towards the top of that hill and had come to a house where an old woman was standing wailing. There had been no one in the house, but in a field about twenty metres away they had found an elderly man lying on his belly with gunshot wounds to his back and head. A gun had been lying next to him. The man from logistics had said that he had shot him in the head to “shorten his pain”. Ž.L. had expressed his disapproval of the behaviour of the Croatian soldiers to his commander Ž.M. Later on he had learned that the old woman they had encountered in front of her house had also been killed. 29. On 13 December 2012 the police again interviewed Dragica Zdjelar. She repeated her earlier statement, in essence, and also gave a description of the two soldiers who had killed her father. 30. During 2013 several short reports on the actions allegedly taken were compiled by the police and the Sisak County State Attorney’s Office. 31. On 10 July 2013 the SAO sent to the Sisak County State Attorney’s Office a submission by Ž.L. in which he alleged that he had witnessed the killing of civilians in Crni Potok, which had been both encouraged and perpetrated by the officers in command of the Third Battalion (bojna) of the First Brigade of the Croatian Army. 32. On 16 October 2013 the Zagreb County State Attorney’s Office sent summonses to Dragica Zdjelar, F.O. and Ž.L. for 19 and 20 November 2013. 33. On 11 November 2013 Ž.L. informed the Sisak County State Attorney’s Office that, owing to his health problems, he would not be able to come to Sisak on his own. He asked that transport to Sisak be organised for him or that he be heard in Karlovac, where he lived. In a further letter written on the same day he stated that some police officers had interviewed him on 22 November 2012 and had concluded that “the information he provided did not lead to the conclusion that a criminal offence had been committed”. He further referred to a letter from the Zagreb State Attorney’s Office of 28 May 2013 stating that “the allegations from his objections and criminal complaints were unfounded”. 34. On 19 November 2013 Zagreb County State Attorney’s Office heard evidence from Dragica Zdjelar and on 26 February 2014 from F.O. They both repeated their earlier statements. 35. It appears that on 1 December 2014 the Sisak State Attorney’s Office emailed a summons to Ž.L. requiring him to give a statement regarding the killings in Crni Potok in 1995. On 6 December 2014 Ž.L. sent a note back to the State Attorney’s Office referring to the summons and stating that he refused to give any statements because of his health problems, the passage of time, and the fact that he had not actually witnessed any crimes and that his prior allegations in that respect had been unfounded. He also alleged that he had been denied his rights in connection with his medical treatment. On 31 December 2014 the State Attorney’s Office forwarded Ž.L.’s note to the Sisak County State Attorney’s Office. 36. On 5 June 2015 the investigation in respect of a number of victims killed on the broader territory of the Sisak County by unknown perpetrators during Operation Storm was assigned to the Osijek County State Attorney’s Office (hereinafter the “OCSAO”). 37. On 13 July 2016 the OCSAO, relying on Ž.L.’s statement to the police, asked the Ministry of Defence to provide information about the whereabouts of the people Ž.L. had named, in particular P.J., J.M., a person nicknamed M. and the person who had been in charge of logistics in the “Tigers” brigade. 38. On 23 November 2016 the OCSAO requested that the police in Sisak carry out interviews with one F.K., who possibly had information about the men who had killed Milan Zdjelar; to interview B.J., A.A., N.S., G.G. and M.T., members of the “Tigers” brigade who had been in Crni Potok during Operation Storm, about their whereabouts during the operation; to locate three commanders of the Croatian Army unit whose members had allegedly buried Milan Zdjelar on 10 August 1995 and whose first names all began with M, namely M.J., M.L. and M.M.; and to again interview D.Z., M.V., N.M., D.V, J.V. and M.B., all inhabitants of Crni Potok. 39. On 20 December 2016 the police informed the OCSAO that F.K., N.M., M.B. and J.V. had died. There were also several people in Crni Potok called M.V. and D.V. 40. On 29 December 2016 the police interviewed G.G. and N.S., former members of the “Tigers” brigade. G.G. said it was possible that the brigade had passed through Crni Potok during Operation Storm but that they had not seen any civilians. He also said that B.J., N.S. and M.T. had been part of a patrol group (izviđačka desetina). N.S. said that the “Tigers” brigade had not killed or arrested any civilians or soldiers during Operation Storm. 41. On 11 January 2017 the Ministry of Defence informed the police about the whereabouts of M.J., M.L. and M.M. 42. On 16 January 2017 the police interviewed A.A., who had been a member of a “Tigers” brigade patrol group. He said his group had not been in Crni Potok during Operation Storm and he did not know whether the “Tigers” brigade had been there either. 43. On 24 April 2004 the applicants and their mother brought a civil action against the State in the Gvozd Municipal Court, seeking compensation in connection with the death of their father. They based their claim on the 2003 Liability Act. 44. The claim was dismissed on 14 July 2005. This judgment was upheld on appeal by the Sisak County Court on 18 June 2009 and by the Supreme Court on 5 October 2011. The national courts found that the claim for compensation had been submitted after the expiry of the statutory limitation period prescribed by the law governing damages awards in civil proceedings. 45. A subsequent constitutional complaint lodged by the applicants was dismissed on 5 June 2012. | 0 |
test | 001-150671 | ENG | HUN | COMMITTEE | 2,015 | CASE OF SIKUTA v. HUNGARY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | András Sajó;Helen Keller;Robert Spano | 6. The applicant was born in 1964 and lives in Budapest. 7. On 1 July 2002 the applicant concluded an employment contract with a State-owned financial institution. 8. On 6 May 2010 the applicant’s employment was terminated by mutual agreement with effect from 30 July 2010. Under this agreement, on 17 May 2010 the employer paid the applicant, after payroll burdens, a net amount of 4,997,020 Hungarian forints (HUF) (approximately 16,100 euros (EUR)), including his salary due until the termination of his employment, payment for unused annual leave and an additional five months’ salary. 9. Under new legislation (see paragraph 10 below) the gross amount corresponding to the above payment was subsequently taxed at a 98% rate in its part exceeding HUF 3.5 million; the income tax and social security contributions already paid (see paragraph 8 above) were deducted from the tax payable. Thus, the applicant had to pay an additional HUF 2,144,160 (approximately EUR 6,900) as special tax, until 20 May 2011. | 1 |
test | 001-172555 | ENG | RUS | COMMITTEE | 2,017 | CASE OF ORLOV AND OTHERS 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;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 that they had been denied an opportunity to appear in person before the court in the civil proceedings to which they were parties. | 1 |
test | 001-164724 | ENG | TUR | ADMISSIBILITY | 2,016 | PAKSOY AND OTHERS v. TURKEY | 4 | Inadmissible | Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković | 1. The applicants, Mr Maksut Paksoy, Ms Güler Ayabakan, Ms Alime Aydede, Ms Mebzul Dalbudak, Mr Ahmet Melih Dedeköy, Ms Mahiser Şamlıoğlu, Mr Mustafa Sezdi, Mr Hacı Abdi Sezdi, Mr Mükremin Sezdi, Ms Ulviye Sezdi (Birol), Ms Dürdane Sezdi (Saydam), Ms Emine Sezdi (Şentürk), Mr İhsan Yazıcı, Mr İsmail Mehmet Yazıcı and Ms Ayşe Yazıcı, are fifteen Turkish nationals. They were born in 1940, 1950, 1932, 1945, 1980, 1948, 1943, 1952, 1954, 1956, 1947, 1943, 1934, 1967 and 1968 respectively. They were represented before the Court by Ms Bahar Argın, a lawyer practising in Istanbul. 2. s, may be summarised as follows. 3. A plot of land in Avcılar, in the Merkez District of Istanbul, was registered in the land register as plot no. 23, parcel no. 4354, in the name of Maksut Paksoy and Ömer Paksoy, the applicants’ predecessors. 4. In 1978, the plot of land in question was designated as a primary school area in the local land development plan. The designation of the plot of land remained unchanged in subsequent plans drawn up between 1978 and 2007. 5. On 26 March 2007 the applicants applied to the municipality to have the local land development plan altered. On 8 October 2007 the municipality rejected the applicants’ request. 6. On 3 January 2008 the applicants instituted proceedings before the Istanbul Administrative Court seeking to have the local land development plan annulled. On 15 January 2008 the Istanbul Administrative Court dismissed the applicants’ case. 7. On 11 March 2008 the applicants instituted another set of proceedings before the Küçükçekmece Civil Court of First Instance, claiming compensation for the decrease in the market value of the land and the long-term uncertainty about the fate of the land. On 16 July 2008 the court dismissed the case, holding that the authorities had not seized the land in question. An appeal and a request for rectification lodged by the applicants were subsequently rejected by the Court of Cassation, and the decision became final on 15 October 2009. 8. According to section 3 of the Zoning Act (Law no. 3194), land cannot be used for any purpose other than that indicated in the local land development plans. 9. Section 10(1) of the same Act provides that the municipalities should prepare their five-year zoning programmes within three months of the entry into force of local land development plans. Land which falls within those programmes and which is accordingly assigned to the relevant public administrative authorities should be expropriated during the period in question. A description of the relevant domestic law may be found in Hüseyin Kaplan v. Turkey (no. 24508/09, §§ 25 and 26, 1 October 2013). 10. The object of Law no. 6384 was to provide for the settlement, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings, and non-enforcement or delayed enforcement of judicial decisions. A Compensation Commission was set up for that purpose. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013). 11. The competence ratione materiae of the Compensation Commission was subsequently extended by a decree which came into force on 16 March 2014. The decree extended the competence of the Compensation Commission to the examination of other complaints, such as alleged restriction of the right of detainees to correspondence in a language other than Turkish and the prison authorities’ refusal, on different grounds, to hand over periodicals. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014). 12. The Turkish Council of Ministers issued a decree which came into force on 9 March 2016. The decree extended anew the competence ratione materiae of the Compensation Commission. 13. The Compensation Commission is now entitled to examine the following subjects under Article 4 of the decree, which reads as follows: “a) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because his or her land was classified as part of the public forest area, or as a result of the application of section 2/B of Law no. 6831, or because the land was classified as part of the public forest area in cadastral surveys; b) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because the impugned land was classified as located within a coastal area; c) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the allocation of the impugned land for public use in local land development plans; d) Applications concerning an alleged breach of an applicant’s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities; e) Applications concerning an alleged breach of the right to respect for correspondence on account of the prison administration’s refusal to receive or send letters or similar correspondence drafted in Turkish.” | 0 |
test | 001-181209 | ENG | TUR | COMMITTEE | 2,018 | CASE OF TAŞ v. TURKEY | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić | 6. The applicant was born in 1979 and lives in Muş. 7. On 19 April 2003 the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation. 8. On 20 April 2003 the applicant’s statements were taken by the police in the absence of a lawyer. During the interrogation, the applicant gave a detailed account of his acts within the illegal organisation PKK (the Kurdistan Workers’ Party). 9. On 22 April 2003 the applicant was heard by the public prosecutor and the investigating judge at the Istanbul State Security Court, again in the absence of a lawyer. In his statements before both the public prosecutor and the investigating judge, the applicant denied the accusations and maintained that his statements to the police had been given under duress. On the same day, upon the order of the investigating judge, the applicant was placed in pre-trial detention. 10. On 6 May 2003 the public prosecutor at the Istanbul State Security Court filed an indictment accusing the applicant of membership of an illegal terrorist organisation under Article 168 of the former Criminal Code, Law no. 765. 11. The State Security Courts were later abolished by Law no. 5190 of 16 June 2004, and the case was transferred to the Istanbul Assize Court. 12. On 19 September 2006, relying on, inter alia, the applicant’s statements to the police, the Istanbul Assize Court convicted the applicant under Article 314 § 2 of the new Turkish Criminal Code and sentenced him to six years and three months’ imprisonment. 13. On 19 November 2007 the Court of Cassation quashed the judgment on procedural grounds. 14. On 30 December 2008 the Istanbul Assize Court convicted the applicant again under Article 314 § 2 of the new Turkish Criminal Code and sentenced him to six years and three months’ imprisonment. 15. On 20 March 2012 the Court of Cassation upheld the judgment of the Istanbul Assize Court. | 1 |
test | 001-140745 | ENG | GBR | ADMISSIBILITY | 2,014 | M.V. v. THE UNITED KINGDOM | 4 | Inadmissible | Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Robert Spano;Vincent A. De Gaetano | 1. The applicant, MV, is an Argentinean national who was born in 1973 and lives in Stanmore. The President granted the applicant's request for her identity not to be disclosed to the public (Rule 47 § 3). She is represented before the Court by Ms C. Ferguson of Liberty, a nonGovernmental organisation based in London. 2. The United Kingdom Government (“the Government”) are represented by their Agent, Ms Y. Ahmed 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 born in Argentina in 1973. She was the eldest of four children: two sisters (VV and FV) and one brother (LV). The applicant's parents separated in 1981 and in 1983 her mother (AP) began a relationship with a British citizen (PON). In 1985 the applicant's mother travelled to England to set up home with PON and she was later joined by her four children. 5. The applicant alleges that following the move to London she was emotionally, physically and sexually abused by PON. 6. In 1986 the applicant moved to Argentina, where she lived with her grandparents. During this time she had no conscious recollection of the sexual abuse; however, due to her erratic behaviour she was sent twice weekly to a psychiatrist. 7. The applicant returned to London in 1988 to live with her mother, PON, and her three younger siblings. She claims that on her return PON once again began to abuse her both physically and sexually. The abuse continued until she moved out of the family home in 1991. 8. Initially the applicant did not tell anyone of the abuse. However, in 1991 her younger sister, VV, told a family friend that she had been sexually abused by PON. This information was eventually related to AP, who confronted the applicant about it. The applicant confirmed that she too had been sexually abused by PON. AP did not immediately report the allegations to the police. 9. Instead, in 1992 AP left PON and returned to Argentina with FV. VV had already returned to Argentina and was living with her grandparents while the applicant had gone to live in Portugal. 10. By 1993 AP, VV and FV had returned to the United Kingdom. It was at this time that AP reported the allegations of sexual abuse by PON to the Metropolitan Police. During the subsequent investigation witness statements were taken from the applicant, VV, FV, AP, PON's ex-wife (CON), and his two children from that marriage (GON and KON). The applicant's brother, LV, was not interviewed at this time. 11. In her interview VV revealed that PON had abused her in a number of ways from the age of eight, predominantly by rubbing himself against her with his penis. She also described being fondled in a jacuzzi, horsewhipped, bitten on her bottom and karate-chopped between her legs. FV also described being made to have a shower with PON and being punished by him with a whip. She also stated that she was aware VV had been touched inappropriately by PON. 12. In April 1993 the applicant returned from Portugal to give a statement. In that statement she described what had taken place in 1986 when AP had gone away for a week, leaving the children in the care of PON. The applicant was twelve years old at the time. She stated: “ [PON] asked me if I would sleep with him. I was only 12 so I thought nothing of it. I went to sleep in his bed ... I remember [he] had wrapped his leg over me and pulled me close. I was scared. I was lying on my stomach and [he] was lying on my right. I remember him breathing. I was not sure what [he] was doing but I felt he was trying to make me take my Mum's place while she was away ... My Mum was away for a week. I cannot remember how many times this happened but I think it happened more than once.” 13. The applicant also described a time when she was fifteen years old when AP had returned to Argentina for three weeks: “[PON] told me that he had a heart condition and asked me to sleep with him as he was scared to sleep alone. I said I would. When it came time to go to bed I went into my brother's room, got the sofa bed and put that next to his bed and slept there. He made me hold his hand but nothing else. The next day he was angry and said I was no company and that he would ask [VV] to take my place.” 14. She also stated that: “I also remember when I was 12 he would give me driving lessons. He would sit me on his lap and get me to move the steering wheel. I think this was strange now because he never offered to do this when I was 16.” 15. Social services' records also indicated that AP had informed a social worker on 10 March 1993 that the applicant had told a friend that PON had fondled her breasts when she was twelve. 16. In her interviews with police and social services KON at times claimed that she had not been abused, while on other occasions she implied that she had. She said that T, another child of PON who was living in Malta, had told her that he had put his hands down her jeans and fondled her. 17. PON was arrested and questioned in May 1993. Although the tapes of the interview have since been destroyed the entry in the crime report stated that he denied all of the allegations. He was released on bail and told to return to the police station on 14 June 1993. 18. On or about 20 May 1993 the police decided, without any reference to the Crown Prosecution Service, that no further action would be taken against PON. The relevant entry in the crime report, which was written by PC G, read as follows: “Nothing has been heard directly from Malta about T [another child of PON] being abused. This matter will have to be reinvestigated should T ever come to England and make an allegation. In discussion with Detective Sergeant [B] we have formed the opinion that there is insufficient evidence for a successful prosecution in this case. A lot of pressure would be put on KON in respect of her evidence. It is not clear that she would attend court, leaving MV and VV unsupported in their account of what happened. In view of the above I shall classify this as no crime. Should any further evidence come to light this will of course be reclassified and investigated accordingly.” 19. On 20 May 1993 PC G informed PON's solicitor by telephone that he would not face prosecution. PC G and Detective Sergeant B also informed the applicant and her family that no prosecution would take place and that this decision had been made 'in order to protect the children'. 20. On 18 August 1993 a child protection case conference was held concerning VV and FV. Detective Sergeant B was in attendance. At that meeting AP produced a tape recording of a telephone conversation she had with PON. In the course of the conversation PON belittled the abuse and sought to blame VV for what had happened. It appears that AP had further tape recordings but the police did not ask to see them at this time. 21. The conference concluded that: “We believe that [VV] has been sexually abused and we will place her name on the Child Protection Register in the category of Sexual Abuse and likely significant harm of emotional abuse. Appropriate boundaries have been breached by [PON] entering the room whilst [FV] was in the shower. We believe he has abused other children and that [FV] is at risk of being abused by him. We will therefore place her name on the register in the category of likely significant harm from sexual abuse.” 22. It was therefore decided that social services would seek to accommodate VV and treatment would be offered to her. FV was to remain with AP under the condition that she have no contact with PON. Treatment was also to be offered to her. 23. In August 1993 FV went to live with her biological father in Portugal. However, she returned to the United Kingdom in December 1993 and thereafter lived with AP and PON, who were again co-habiting. Her name was again placed on the Child Protection Register. 24. In 1994 AP married PON. The relationship was on and off for the next few years before finally coming to an end in January 1999. 25. In 1999 all interview records, case notebooks and the custody record were destroyed. 26. In November 2000 the applicant's brother, LV, committed suicide. The following month, the police re-opened the investigation into the allegations of abuse. It was agreed, however, that the re-investigation would only consider new evidence. 27. On 6 June 2001 the applicant gave a further statement. In that statement she explained: “I made a witness statement to Police on the 10th April 1993, regarding [PON]. I was 19 years old and at the time couldn't bring myself to give the full details of what took place. I wish to add the following...” 28. She proceeded to set out in greater detail the allegations made in April 1993. In particular, she stated that during the “driving lessons” PON had had an erection and moved under her. Moreover, she claimed that after inviting her to sleep in his bed he had also had an erection and was rubbing himself against her in a sexual motion. Afterwards, her nightdress was wet. In addition, she alleged that the sexual abuse had been accompanied by serious cruelty, physical abuse and the humiliation of all the children. 29. PON was arrested on 4 July 2001 and subsequently charged with thirteen counts of indecency and child cruelty, two counts of indecency and one count of cruelty related to offences committed against the applicant. 30. On 28 August 2001 the police were given AP's tape recordings of conversations she had had with PON concerning the abuse. One of the tapes contained the following statements by PON: “I want you to understand something. These things that happened with [VV] happened three years ago, OK. And they got out of hand between us but not too much, [AP], but it doesn't make it right...I want to sort this out with you and [VV] ... at the end of the day...I was the adult and I should have fucking stopped it. But I never took her knickers down or tried to screw her or anything like that, for fuck's sake...what happened with [VV] was the situation, not the way I am. OK. You can trust me ... Things happened with [VV], but not what you think happened, not what you think happened...I'll tell you what happened and I'm not proud of it. I'm ashamed. It got too close with [VV], but it wasn't one way, and I was the adult and should have stopped it. But she never touched me or done anything ... I've never done anything that bad to [VV] Bad enough, but not that bad.” 31. On 3 September 2002 Croydon Crown Court ordered that the prosecution against PON be stayed because of abuse of process. The court gave three reasons for its decision: first, in 1993 PON had been told unequivocally that no further police action would be taken; secondly, little evidence had been discovered in addition to that which was available in 1993; thirdly, there was material which was no longer available, particularly in relation to contemporaneous notes of interview, as a result of which it would be impossible for PON to have a fair trial. The applicant did not challenge this decision. 32. During the hearing, police officers gave slightly divergent evidence concerning the 1993 investigation. Detective Sergeant B indicated that there had been a prima facie case against PON but it was not considered to be in the best interests of the applicant and her siblings to put the case before a court. Sergeant G (formerly PC G) agreed that the reason not to proceed was mainly to do with the children's welfare but stated that in any case there had been insufficient evidence to prosecute. 33. On 11 October 2005 the applicant filed a civil claim in which she claimed damages from the Commissioner of Police for the Metropolis for personal injury and loss arising from the alleged negligent manner in which the police had pursued the allegations of child cruelty and indecent assault against PON and from the decision not to prosecute. The Commissioner applied to have the application struck out on the basis that it disclosed no reasonable grounds. 34. In a decision dated 21 June 2006, the District Judge considered the decision not to prosecute to be separate and apart from the police investigation. Insofar as the claim concerned the conduct of the police investigation, the judge held that the allegations had to be struck out as the law did not impose a duty of care on the police in respect of the conduct of a criminal investigation. Such a duty could only arise if it could be shown that the police had assumed responsibility towards a particular claimant in such a manner as to give rise to a duty. However, that was not the position in the present case. The judge accepted that exceptionally, in a child cruelty and sexual abuse case, if an investigation had been carried out so negligently that a child was not protected from future harm, it was at least arguable that the police might exceptionally be held liable. However, he held that the above exception did not apply to the applicant as she was no longer a child in 1993 and had therefore been in no different a position to any ordinary witness or victim. 35. With regard to the failure to prosecute, the District Judge considered it arguable that a limited duty of care might arise in the context of the facts of the case. In particular, the judge found it disturbing that the CPS was not apparently even consulted with regard to the failure to prosecute PON, particularly in view of the severity and magnitude of the alleged offences. Indeed, he noted that it would have been expected that the file was at least sent to the CPS for its consideration as to whether or not to prosecute. However, instead of sending the file to the CPS the police had taken the decision not to prosecute themselves on the ground that it would not be in the best interests of the applicant or her sisters. 36. The Commissioner of Police appealed to the County Court against the District Judge's decision, maintaining that he should have struck out the claim regarding the decision not to prosecute. The applicant cross-appealed on the ground that the judge had been wrong to strike out the claim in relation to the investigation. Following a lengthy consideration of the District Judge's decision, on 8 February 2007 the court dismissed the appeal and the cross-appeal, leaving the decision of the District Judge as it was. In doing so, the judge noted that it was possible, even if the possibility was not a very strong one, that further examination of the facts, reasoning and information behind the 1993 decision not to prosecute might lead to the conclusion that the taking of that decision gave rise to a limited duty of care. 37. The Commissioner appealed to the Court of Appeal. At the hearing, counsel for the applicant conceded that there could be no claim for negligent failure to investigate the complaints properly in 1993 and the lower courts had been right to strike out those aspects of the claim. He argued, however, that the decision not to prosecute was different because in coming to that decision the police had taken into account the interests of the children. 38. On 21 December 2007 the Court of Appeal allowed the appeal and struck out the applicant's claim altogether. It found that following Hill v. Chief Constable of South Yorkshire Police [1989] AC 53 (see below), the existence of a duty of care in a case such as the present would not be in the public interest as it would lead to the police carrying out their duties in a detrimentally defensive frame of mind. In any case, the Court of Appeal noted that even if there had been a duty of care, the applicant's Particulars of Claim did not disclose a cause of action because she would have had to have pleaded – and could not possibly have pleaded – that no reasonable prosecutor would have failed to prosecute. 39. On 30 July 2008 the House of Lords refused to grant the applicant permission to appeal on the basis that the petition did not raise an arguable point of law of general public importance. 40. On 10 February 2006 Dr. N, a Consultant Psychiatrist, prepared a report on the applicant. 41. In that report he noted that she was suffering from clinical depression which was moderate in its severity. Although he noted evidence of propensity to mental disorder within the family, he concluded that her experience of abuse while she was a child was the original cause of the mental disorder now afflicting her. However, he considered that the applicant's experience of uneven and unsettled parenting by AP was also a contributory factor. 42. With regard to the question of whether the failure of the original prosecution of PON was a significant contributing factor, Dr. N acknowledged that the answer was “a difficult and complicated determination resting as it does upon the implication of the narrative biography, the complex family dynamics, subconscious psychological themes and a broader consideration of [the applicant's] personality, psychological constitution and prospects”. Nevertheless, although the argument was “both subtle and complex”, he concluded that “a significant proportion of [the applicant's] ongoing psychological difficulties can be traced to the failure of the original prosecution of [PON] in 1993”. 43. Physical and sexual abuse of a child are criminal offences in England and Wales. Prior to 1 May 2004, the relevant sexual offences were set out in the Sexual Offences Act 1956, the Sexual Offences Act 1967, the Sexual Offences (Amendment) Act 1976 and the Sexual Offences (Amendment) Act 1992 (“the Sexual Offences Act 1956 to 1992”). Cruelty to a person under sixteen years of age is – and was at the material time – a criminal offence by reason of section 1(1) of the Children and Young Persons Act 1933. 44. Under domestic law the police owe no general duty of care in tort to victims of crime to investigate their allegations (Hill v. Chief Constable of South Yorkshire Police [1989] AC 53). However, this position is not tantamount to a “blanket immunity” and in certain cases the police could be found to owe a duty of care to a victim (see, for example, Swinney v. Chief Constable of Northumbria Police Force [1997] QB 464, in which the police appeared to have assumed responsibility for the victim's safety). 45. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. 46. Section 7(1) of the Act provides that a person who claims that a public authority has acted or proposes to act in a way which is unlawful pursuant to section 6(1) may bring proceedings against the authority under the Act in the appropriate court or tribunal or may rely on the Convention rights concerned in any legal proceedings. 47. Pursuant to section 8, the court may grant such relief or remedy, or make any such order within its powers as it considers just and reasonable in relation to any act of a public authority which it finds is unlawful. | 0 |
test | 001-160429 | ENG | AZE | CHAMBER | 2,016 | CASE OF HUSEYNLI AND OTHERS v. AZERBAIJAN | 3 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);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 first applicant was born in 1965 and lives in Baku. The second and third applicants were born in 1984 and 1975 respectively and live in Sumgait. 6. At the material time the applicants were members of the main opposition parties or groups in the country: the Popular Front Party of Azerbaijan (“the PFPA”), the Musavat Party and Ictimai Palata, respectively. The first applicant was a member of the Board of the PFPA. The first and third applicants were candidates in the parliamentary elections of 2010. The first applicant was also a candidate in the parliamentary elections of 2005. 7. The year 2011 was marked by an increased number of opposition demonstrations in Azerbaijan, mainly in Baku. They were held, inter alia, on 11 and 12 March, 2 and 17 April, 22 May and 19 June 2011. According to the applicants, the relevant authorities were notified about the demonstrations but refused to authorise them. Despite their peaceful character, demonstrations held without authorisation were dispersed by the police. 8. All three applicants participated in a number of opposition demonstrations. In the course of many of them they were arrested and convicted. In particular, on 12 and 30 April 2010 and 12 March 2011 the second applicant was arrested and convicted of breaching the rules on the organisation and holding of assemblies and failure to obey a lawful order of a police officer. The third applicant was arrested during the demonstration of 12 March 2011 and reprimanded for breaching the rules on the organisation and holding of public assemblies. 9. According to the applicants, they had intended to attend the demonstration scheduled for 2 April 2011. In addition, the first applicant was involved in the organisation of that demonstration. 10. Prior notice of the demonstration of 2 April 2011 had been given to the relevant authority, the Baku City Executive Authority (“the BCEA”), on 18 March 2011. On 31 March 2011 the BCEA refused to allow the demonstration to be held at the place indicated by the organisers, and proposed that it be held at another place on the outskirts of Baku. Nevertheless, the organisers decided to hold the demonstration in central Baku, and information about it was disseminated via Facebook and the press. 11. The first applicant alleged that between approximately 10 a.m. and 11 a.m. on 31 March 2011, after he had taken his child to kindergarten, police officers had stopped his car and requested that he follow them to a police station. He did not oppose the police officers’ demand and was taken to police station no. 20 of the Nasimi District Police Office. At an unspecified time the applicant was informed that he was being detained in connection with the upcoming demonstration of 2 April 2011. At around 2 p.m. he learned that he would not be released from detention. The applicant was then questioned. He was asked, inter alia, about his intention to participate in the demonstration of 2 April 2011 and generally about the politics in the country. 12. According to the official records, the applicant was arrested for disobeying a lawful order of a police officer. In particular, police officers F.P., S.A. and R.V. stated the following in a report (raport) submitted to a superior police officer: “... at around 10.30 a.m. on 31 March 2011 on 3rd Alatava street [in Baku] we stopped a [person] who was driving by in his car and requested his identity document because he bore a resemblance to a person who was on a wanted list. But he ignored our lawful demand to produce his identity document. We brought [him] to the police station. There we found out that [he] was [the applicant] ...” 13. At around 1.20 p.m. on the day of the arrest, an “administrative-offence report” (inzibati xəta haqqında protokol) was issued by police officer T.A. in respect of the applicant. The report stated that the applicant had committed an administrative offence under Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”). 14. The applicant signed the part of the administrative-offence report acknowledging that he had been familiarised with the report, but left without signature the part with a pre-printed text which stated that “the rights and obligations under Articles 371, 372, 374, 377, 379 and 410.4 of the CAO of the Republic of Azerbaijan were explained”. He made a statement that he had not disobeyed any order given by the police. This statement was included in the report. 15. According to the applicant, he was never provided with a copy of the administrative-offence report or with other documents in his case file. He was not given access to a lawyer after his arrest or while in police custody. 16. The applicant was brought before the Nasimi District Court on the day of his arrest. 17. According to the applicant, the hearing, which began at 3 p.m., was very brief. He refused the assistance of a State-funded lawyer and insisted on hiring a lawyer of his own choice, but the judge disregarded his request. His representation by that lawyer was ineffective and of a formalistic nature. 18. The applicant stated before the court that he had been stopped by the police and had been requested to follow them to a police station, that he had complied with that request, and that he was not guilty of disobeying a police officer. 19. The only witnesses questioned during the court hearing were police officers T.A., F.P. and S.A. Police officer T.A. testified that he had prepared the administrative-offence report in respect of the applicant. Police officers F.P. and S.A. gave testimonies virtually identical to the above-mentioned report they had submitted to a superior police officer. 20. According to the record of the hearing, the State-funded lawyer stated that the applicant was not guilty and asked the court to terminate the administrative proceedings against him. 21. The court found that the applicant had committed an administrative offence under Article 310.1 of the CAO and sentenced him to seven days’ “administrative” detention. 22. The applicant lodged an appeal before the Baku Court of Appeal, presenting his version of the facts surrounding the arrest, and arguing that he had been arrested in connection with the demonstration scheduled for 2 April 2011. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He urged the Baku Court of Appeal to quash the first-instance court’s decision. 23. It appears that the applicant was not represented by a lawyer before the Baku Court of Appeal. 24. On 5 April 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct. 25. The second applicant alleged that at around 10.30 a.m. on 31 March 2011, when he was still in bed, three police officers had entered his apartment without an arrest warrant. The applicant’s father had let the police officers in. The police officers took the applicant to police station no. 3 of the Sumgait City Police Office. At an unspecified time the applicant was questioned about his political activities. 26. According to the official records, the applicant was arrested for minor hooliganism and for disobeying a lawful order of a police officer. In particular, police officer T.R. stated the following in a report submitted to a superior police officer: “... at around 12.30 p.m. on 31 March 2011 on the territory of the 9th micro-district of Sumgait, I noticed a person who was making noise ... But although I invited him to respect the discipline, he continued his cursing and improper behaviour ... Therefore I brought him to police station no. 3. There we found out that that [person] was [the applicant] ...” 27. On the day of the arrest, an administrative-offence report was issued by police officer E.S. in respect of the applicant. The report stated that the applicant had committed an administrative offence under Articles 296 (minor hooliganism) and 310.1 of the CAO. 28. The applicant refused to sign the report. 29. According to the applicant, he was never provided with a copy of the administrative-offence report or with other documents in his case file. He was not given access to a lawyer after the arrest or while he was kept in police custody. 30. According to a statement (ərizə) allegedly signed by the applicant and submitted to the Court by the Government, the applicant had refused legal assistance while in police custody. According to the transcript of the hearing before the Sumgait Court of Appeal, the applicant claimed that he had not signed that statement. 31. The applicant was brought before the Sumgait City Court on the day of his arrest. 32. According to the applicant, the hearing, which began at 3.30 p.m., was very brief and he was not given an opportunity to hire a lawyer of his own choice. 33. According to the transcript of the first-instance court hearing, the applicant refused the assistance of a State-funded lawyer and decided to defend himself in person. 34. The applicant stated before the court that he had been taken to a police station from his apartment, that it had been his father who had let the police officers in, that at the police station he had been questioned about his political activity, and that he was not guilty of disobeying a police officer or of swearing at the location indicated by the police. According to the transcript of the Sumgait Court of Appeal hearing, the applicant orally requested that the chief of police station no. 3, M.N., be questioned. However, there is no information whether M.N. was questioned. 35. The only witness questioned during the court hearing was police officer T.R. He testified that the applicant had been swearing without addressing any particular person and had failed to obey his order to stop his illegal behaviour. 36. The court found that the applicant had committed an administrative offence under Articles 296 and 310.1 of the CAO and sentenced him to seven days’ “administrative” detention. 37. The applicant lodged an appeal before the Sumgait Court of Appeal, presenting his version of the facts surrounding the arrest, and arguing that his arrest had been unlawful, that the hearing before the first-instance court had not been fair and that his right to respect for home had been violated by the police. He urged the Sumgait Court of Appeal to quash the first-instance court’s decision. 38. It appears that the applicant refused legal assistance at the hearing before the Sumgait Court of Appeal. 39. On 19 April 2011 the Sumgait Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct. 40. According to the third applicant, at around 11 a.m. on 31 March 2011 he went with his lawyer to the Sumgait City Police Office. After a conversation with the chief of police, they left. The applicant, who did not clearly explain the purpose of that visit, alleged that when he had been outside the police office and no longer accompanied by his lawyer, police officers had arrested him without explaining the reasons for doing so, and had taken him to police station no. 4 of the Sumgait City Police Office. 41. According to the official records, the applicant was arrested for “minor hooliganism”. In a report submitted to a superior police officer, police officer N.M. stated the following: “... at around 12.30 p.m. on 31 March 2011 on Akhundov street [in Sumgait] [we, the police officers,] noticed a person who was swearing loudly without addressing anyone in particular ... We approached him and ... brought him to police station no. 4. There we found out that that [person] was [the applicant] ...” 42. Police officers R.S. and A.M. submitted explanatory reports (izahat) to a superior police officer. Those reports were virtually identical to the report submitted by police officer N.M. 43. On the day of the arrest police officer V.J. issued an administrative-offence report in respect of the applicant. The report stated that the applicant had committed an administrative offence under Article 296 of the CAO. 44. The applicant refused to sign the administrative-offence report. 45. According to the applicant, he was never provided with a copy of the administrative-offence report or with other documents in his case file. He was not given access to a lawyer after his arrest or while he was kept in police custody. 46. According to a decision dated 31 March 2011, police officer V.J. decided to invite a lawyer to represent the applicant, without indicating at what stage the lawyer should join the proceedings. 47. The applicant was brought before the Sumgait City Court on the day of his arrest. 48. According to the applicant, he was not given an opportunity to hire a lawyer of his own choice to represent him at the hearing, which began at 4 p.m. He asked the judge to postpone the examination of the case for one hour so that his lawyer could arrive at the court. However, the judge decided to adjourn the hearing for only thirty minutes and to recommence the hearing at 4.30 p.m., which was not enough time for the applicant’s lawyer to arrive. 49. According to the transcript of the court hearing, the applicant refused the assistance of a State-funded lawyer. 50. The applicant stated before the court that he was not guilty of breaching public order by swearing at the location indicated by the police, and that he believed that the motive for his arrest had been his participation in the demonstration of 12 March 2011. 51. The only witnesses questioned during the court hearing were police officers M.N., R.S. and A.M. They testified that the applicant had been swearing without addressing anyone in particular and that they had therefore taken him to a police station. 52. The court found that the applicant had committed an administrative offence under Article 296 of the CAO and sentenced him to seven days’ “administrative” detention. 53. The applicant lodged an appeal before the Sumgait Court of Appeal, presenting his version of the facts surrounding the arrest, and arguing that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He urged the Sumgait Court of Appeal to quash the first-instance court’s decision. 54. It appears that the applicant prepared his written appeal with the assistance of a lawyer of his own choice. However, he participated in the hearing before the Sumgait Court of Appeal without his lawyer. 55. On 15 April 2011 the Sumgait Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct. | 1 |
test | 001-171124 | ENG | HRV | ADMISSIBILITY | 2,017 | FOLNEGOVIĆ v. CROATIA | 4 | Inadmissible | Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 1. The applicant, Mr Zdravko Folnegović, is a Croatian national, who was born in 1958. He was represented before the Court by Mr I. Skupnjak, a lawyer practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant has lived and worked in Switzerland since 1990. 5. In the period between 1996 and 2013 the competent prosecuting authorities in Croatia opened in total fifteen criminal cases against the applicant in connection with a suspicion that he had created a network for illegal and fraudulent offering of loans in Switzerland to Croatian citizens. It was alleged that fifty-six individuals had fallen victim to such criminal activities and that the applicant had also caused damage to the State. The total alleged pecuniary gain was estimated to be 645,847.06 euros (EUR). 6. In the course of the criminal proceedings against him, the applicant several times failed to appear before the competent criminal courts. He referred to reasons such as problems with his car and health issues. In connection with the applicant’s health condition, a medical report was commissioned and on 7 January 2010 a medical expert found that there had been nothing objectively justifying the applicant’s absence from the hearings. 7. Owing to the inability of the Croatian authorities to secure the applicant’s presence, four sets of criminal proceedings against him were conducted in absentia. In those criminal proceedings he was convicted and sentenced to prison terms ranging from one to three years. 8. In November 2012, on the basis of an international arrest warrant, the Swiss authorities extradited the applicant to Croatia. Upon his extradition, the applicant was placed in Lepoglava State Prison (Kaznionica u Lepoglavi) where he started to serve his prison sentences. 9. Following the granting of his application for the reopening of the proceedings conducted in absentia, service of the applicant’s sentence was discontinued on 16 May 2013. He was, however, remanded in pre-trial detention pending the criminal proceedings against him. 10. On 4 August 2014, after the applicant had deposited bail in the amount of 500,000 Croatian kunas (HRK – approximately EUR 65,000), the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu), in a case pending before it (case no. Ko-1330/13), found that the applicant should be released if he promised that he would not go into hiding, leave his place of residence in Zagreb without permission, hinder the proper conduct of the proceedings or reoffend. The applicant undertook to obey the conditions of his bail and the Zagreb Municipal Criminal Court released him from detention, instructing the police to supervise the applicant’s compliance with the imposed measures. 11. At the time when he deposited bail the applicant was still detained on the basis of a detention order of the Zlatar Municipal Court (Općinski sud u Zlataru) in another criminal case against him (case no. K-269/14). Following the applicant’s deposit of the bail before the Zagreb Municipal County Court, on 24 September 2014 the Zlatar Municipal Court found that he should be released from pre-trial detention as his presence could be secured by the measures imposed by the Zagreb Municipal Criminal Court. On the same day, the applicant was released from detention. At the time he was represented before the domestic courts by the same representative as currently before the Court (see paragraph 1 above). 12. In connection with the applicant’s conviction in absentia in criminal case no. Ko-683/13 on charges of fraudulent offering of loans to several individuals in which he had been sentenced to three years’ imprisonment, on 15 May 2009 the Zagreb Municipal Criminal Court imposed an administrative travel ban on the applicant by ordering the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske), pursuant to section 41 of the Travel Documents (Croatian Citizens) Act (see paragraph 33 below), to confiscate the applicant’s existing travel document and not to issue a new one to him. 13. Following the setting aside of the applicant’s conviction in absentia and the reopening of the criminal proceedings on the basis of his application, on 12 April 2013 the Zagreb Municipal Criminal Court informed the Ministry of the Interior that the applicant’s travel ban was to remain in force pending the criminal proceedings against him. The applicant was also remanded in pre-trial detention on the grounds of a risk of absconding related to his previous conduct by which he had sought to escape trial. 14. On 15 November 2013 the decision on the applicant’s pre-trial detention was set aside on the grounds that the maximum period for pre-trial detention had expired. 15. On 23 January 2014 the Zagreb Municipal Criminal Court informed the Ministry of the Interior that the applicant’s travel ban pursuant to section 41 of the Travel Documents (Croatian Citizens) Act should still remain in force. The same instruction was issued again on 1 October 2014. 16. Meanwhile, following a retrial, on 4 March 2010 the applicant was found guilty in the above criminal proceedings on charges of fraud and sentenced to three years’ imprisonment. Based on the applicant’s appeal the case was referred to the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu), as the competent appeal court in the case. 17. On 18 November 2014 the applicant applied to the Zagreb Municipal Criminal Court to have the administrative ban on him obtaining travel documents lifted, arguing that his medical condition had deteriorated and that he urgently needed heart surgery. He contended that he did not have health insurance in Croatia, but only in Switzerland, and that he did not have sufficient financial means to pay for surgery in Croatia. He therefore asked for permission to go to Switzerland for a short period so he could have the surgery. He also pointed out that he had been released from detention on bail and under preventive measures, which, in his view, made the administrative ban at issue obsolete. 18. As he received no reply from the Zagreb Municipal Criminal Court, in January 2015 the applicant complained to the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske) and again urged the Zagreb Municipal Criminal Court to examine his application. Meanwhile, his medical examination of 12 January 2015 indicated that he should have the required heart surgery within three months. 19. Following his complaint, the applicant received a reply from the Ministry of Justice informing him that the case file had been forwarded to the Slavonski Brod County Court, as the competent appeal court, and that the matter would be examined. 20. In March 2015 the applicant asked the Slavonski Brod County Court to decide upon his application. On 5 March 2015 the Slavonski Brod County Court replied by an email that it was not competent to decide on the application and that it should be examined by the Zagreb Municipal Criminal Court, which had issued the ban. 21. On 9 April 2015 the Slavonski Brod County Court dismissed the applicant’s appeal against the first-instance judgment of the Zagreb Municipal Criminal Court (see paragraph 16 above). His conviction thereby became final. 22. Following the finalisation of the applicant’s conviction, on 12 June 2015 the case was forwarded to a sentence-execution judge of the Zagreb County Court (Županijski sud u Zagrebu) in order to make the arrangements for the applicant’s service of his prison sentence. 23. Notwithstanding the repeated attempts by the sentence-execution judge and the police to locate the applicant, he remained unavailable to the Croatian authorities. In February 2016 an international arrest warrant and a European arrest warrant were issued against him. 24. At present the applicant is still at large. 25. In addition to the above-noted administrative travel ban in case no. Ko-683/13, an administrative travel ban was also ordered in the Zagreb Municipal Criminal Court’s case no. Ko-1330/13 (see paragraph 10 above). The proceedings in that case are still pending. 26. The criminal proceedings against the applicant in the Zlatar Municipal Court’s case no. K-269/14 are still pending (see paragraph 11 above). 27. Other criminal proceedings against the applicant in a case before the Zlatar Municipal Court (case no. K-148/07) are still pending. 28. According to the applicant, on 27 April 2015 he was asked to come for an interview to a police station where he was questioned about his complaints submitted to the Court. 29. According to the information provided by the Government, the police were acting upon the media reports that the applicant had effectively lived in Switzerland but maintained his registered residence in Zagreb since 1983. 30. In this connection the police attempted several times to find the applicant at his registered address in Zagreb but he could not be located. Eventually, he appeared at the police station with his lawyer and gave a statement concerning his residence. 31. A report on the applicant’s interview of 27 April 2015 contains his statements concerning his residence. According to the report, the applicant was neither questioned on nor did he give any statement concerning his application before the Court. 32. According to a report by the Ministry of Health (Ministarstvo zdravlja Republike Hrvatske) of 16 April 2015, provided by the Government, the applicant had health insurance in Croatia in the period between 25 October 2013 until 24 September 2014 as a person deprived of his liberty (see paragraph 11 above and paragraph 34 below). Thereafter he had an opportunity to apply for free health insurance within thirty days of his release in accordance with the Mandatory Health Insurance Act (see paragraph 34 below). Moreover, he had an opportunity to apply for comprehensive health insurance but he would have needed to pay certain due instalments and further instalments in the amount of 416.90 Croatian kunas (approximately EUR 55). The health insurance under any of the noted grounds would also cover the heart surgery which had been indicated to the applicant. Such heart surgery could be performed in the Clinical Hospital Centres in Zagreb and Split, and in the Dubrava and Magdalena Clinical Hospitals. 33. The relevant part of the Travel Documents (Croatian Citizens) Act (Zakon o putnim ispravama hrvatskih državljana, Official Gazette nos. 77/1999, 133/2002, 48/2005, 74/2009, 154/2014 and 82/2015) reads: “An application for a travel document shall be denied to an applicant in respect of whom there is a justified suspicion that he or she will: 1. Avoid his or her participation in the criminal proceedings or the enforcement of a judgment by which he or she was sentenced to a sentence of imprisonment longer than three months ... - upon a request by the competent court, ...” 34. The Mandatory Health Insurance Act (Zakon o obveznom zdravstvenom osiguranju, Official Gazette nos. 80/2013 and 137/2013) in its section 7(28) provides that all individuals deprived of their liberty shall have health insurance. Paragraph 13(c) of the same section provides that every individual who has been deprived of his or her liberty shall be given health insurance if, within thirty days following release, he or she applies for it. Section 18 of the Act provides that health insurance should cover the cost of specialist treatment and hospitalisation. 35. Section 8 of the Health Care Act (Zakon o zdravstvenoj zaštiti, Official Gazette nos. 150/2008 with further amendments) provides that urgent medical treatment for individuals residing in Croatia without health insurance and sufficient means to pay for their treatment shall be paid for from the State budget. 36. Under section 12 of the Residence Act (Zakon o prebivalištu, Official Gazette nos. 144/2012 and 158/2013) the police have the right to check whether an individual is residing at his or her registered residence in Croatia, and to institute the procedure for his or her striking out from the register of residence if he or she does not live at the registered residence. | 0 |
test | 001-185033 | ENG | UKR | COMMITTEE | 2,018 | CASE OF MAYSTRENKO v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 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) | Yonko Grozev;Gabriele Kucsko-Stadlmayer | 3. The relevant details of the application are set out in the appended table. 4. The applicant complained of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law. He also raised other complaints under Articles 6 § 1 and 13 of the Convention concerning the excessive length of criminal proceedings. | 1 |
test | 001-167490 | ENG | CHE | CHAMBER | 2,016 | CASE OF VUKOTA-BOJIC v. SWITZERLAND | 3 | Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1954 and lives in Opfikon. 6. The applicant had been employed as a hairdresser since 1993 and she had compulsory accident insurance under the Federal Law on Accident Insurance (see Relevant domestic law below). On 28 August 1995 she was hit by a motorcycle while crossing the road and fell on her back. She was hospitalised overnight owing to suspected concussion resulting from the impact of her head against the ground. 7. On 2 October 1995 the applicant was examined by a rheumatologist who diagnosed her with a cervical trauma and possible cranial trauma. On 6 December 1995 her family doctor certified that her injuries had resulted in total incapacity for work until the end of the year. 8. On 29 January 1996 the applicant was examined at the Zurich University Hospital. The doctor who examined her predicted that she could make a gradual return to work. Nevertheless, on 12 June 1996 another doctor in the same hospital declared the applicant totally incapable of work. 9. At the request of her insurance company, the applicant’s health was assessed by means of orthopaedic, neurological, neuropsychological and psychiatric examinations by the insurance-disability medical examination centre (COMAI) of St. Gallen. On the basis of the assessment carried out by that centre, the applicant was declared fully capable of work with effect from February 1997. 10. By a decision of 23 January 1997 the insurance company informed the applicant that her entitlement to daily allowances would end on 1 April 1997. 11. On 4 February 1997 the applicant submitted an objection to that decision and enclosed a report of a neurologist, who confirmed an almost permanent headache, limited head movement, pain radiation towards the shoulders and arms with sensory disorders as well as sleep disorders. In addition, the specialist suspected that the applicant had suffered whiplash and that she was affected by a neuropsychological dysfunction. 12. In September 1997 the insurance company rejected the applicant’s complaint finding no causal link between the accident and her health problems. 13. The applicant appealed to the Social Insurance Court of the Canton of Zurich (Sozialversicherungsgericht des Kantons Zürich). 14. In a decision of 24 August 2000, the Social Insurance Court allowed the applicant’s appeal. It overturned the insurance company’s decision and remitted the case for further clarifications. Taking into account the partial contradictions that existed between the different medical reports, the court considered that the consequences of the accident for the applicant’s state of health were not sufficiently established. Moreover, a doubt remained as to whether the applicant had suffered trauma to her neck and spine. The insurance company was thus required to clarify the issue. 15. The insurance company subsequently ordered a multidisciplinary examination, which was conducted by an institute of medical experts in Basel. In their report the experts concluded that the applicant was totally incapacitated in respect of the duties required in her profession. However, the insurance company challenged this report once it found that a doctor who had participated in its preparation had previously carried out a private examination of the applicant in the initial stages of the proceedings. 16. The insurance company therefore ordered another medical report, which was delivered on 11 November 2002. The report observed the existence of a causal link between the accident and the damage to the applicant’s health, and was accompanied by a neuropsychological report, which noted a brain dysfunction subsequent to a head injury. 17. Meanwhile, by a decision of 21 March 2002 the competent social security authority (Sozialversicherungsanstalt) of the Canton of Zurich granted the applicant a full disability pension with retroactive effect. 18. Subsequently, the applicant asked the insurance company on several occasions to comment on its obligation to grant her insurance benefits. 19. On 5 October 2003 another expert report commissioned by the insurance company was prepared solely on the basis of the previous examinations. The medical expert confirmed the existence of a causal link between the accident and the applicant’s health problems, and concluded that the applicant’s illness had led to a total incapacity for work. 20. On 14 January 2005 the insurance company issued a decision confirming the termination of the applicant’s benefits as of 1 April 1997. The applicant lodged a complaint against that decision. 21. On 11 June 2005, another independent physician concluded, solely on the basis of the previously drafted medical reports, that these medical findings were not sufficiently explicit as regards causality. According to him, the applicant’s incapacity for work amounted to not more than 20%. He also strongly criticised the approach and findings of other medical experts. On the basis of this report, on 22 September 2005 the insurance company dismissed the applicant’s complaint on the grounds of lack of a causal link between the accident and her medical conditions. 22. The applicant appealed, arguing that most of the medical reports had found a causal link and that the only report denying the existence of such a link was based solely on medical reports by other experts instead of on a direct examination. 23. On 28 December 2005 the Social Insurance Court recognised the existence of a causal link between the accident and the health problems the applicant complained of, and allowed her appeal. The matter was referred to the insurance company for it to decide on the right of the applicant to insurance benefits. 24. Thereafter, the insurance company invited the applicant to undergo a medical evaluation of her functional abilities, which she refused. The applicant was then issued with a formal notice within the meaning of Article 43 (3) of the Social Security Act inviting her to undergo the said evaluation and warning her about the legal consequences of failing to do so indicated in the said provision (see § 38 below). No mention of the possibility of covert monitoring was mentioned. 25. Thereafter, on 3, 10, 16 and 26 October 2006 the applicant was monitored by private investigators, commissioned by the insurance company. The surveillance was performed on four different dates over a period of twenty-three days and lasted several hours each time. The undercover investigators followed the applicant over long distances. Following the surveillance, a detailed monitoring record was prepared. Pursuant to that report, the applicant appears to have become aware of the secret surveillance on the last day of implementation of the measure. 26. In a decision dated 17 November 2006 the insurance company refused the applicant’s representative access to the surveillance report. The applicant then lodged a complaint with the supervisory authority, namely the Federal Office of Public Health, objecting to the failure to take a decision on her benefits entitlement. 27. On 14 December 2006 the insurance company sent the private investigators’ report to the applicant. The report included the surveillance footage and declared that it considered it necessary to conduct a fresh neurological assessment of the applicant. However, the applicant refused to undergo any further examination and asked for a decision on her benefits to be taken. 28. In a decision of 2 March 2007 the insurance company again refused to grant any benefits to the applicant on the basis of the images recorded during the surveillance and her refusal to undergo a neurological examination. 29. The applicant lodged a complaint against that decision, claiming a pension on the basis of a degree of disability of 100% as well as compensation for damage to her physical integrity. She also asked for the surveillance case file to be destroyed. 30. On 12 April 2007 another neurologist appointed by the insurance company, Dr H., released an anonymous expert opinion based on evidence and drafted taking into account all the medical examinations and assessments carried out previously as well as the surveillance images. He found that the applicant’s incapacity to work amounted to 10%. Furthermore, he estimated the damage to the applicant’s physical integrity at between 5% and 10%. On the basis of the analysis of the surveillance images he concluded that the restriction on her capacity to lead a normal life was minimal. 31. On 14 March 2008 the Federal Office of Public Health gave the insurance company a deadline to decide the applicant’s complaint. By a decision of 10 April 2008, the insurance company rejected the applicant’s request for destruction of the images and decided to grant her daily allowances and a pension on the basis of a disability degree of 10%. 32. On 6 May 2008 the applicant lodged an appeal with the Social Insurance Court claiming compensation for damage to her physical integrity as well as a disability pension based on 70% disability. In addition, she claimed interest at 5% on arrears on the daily allowances remaining unpaid since the accident. She also asked for the expert opinion on the evidence taking into consideration the material resulting from the surveillance be to be removed from her case file. The applicant complained that the surveillance had been “reprehensible and inappropriate” and had constituted an “attack on her personality”. 33. On 29 May 2009 the Social Insurance Court found in favour of the applicant. In particular, it ruled that owing to the lack of legal basis for the surveillance the monitoring record was not admissible as evidence. As a result, it denied any probative value of the expert opinion based on the evidence, which had taken into account the illegal surveillance. Moreover, according to the court’s previous decision of 28 December 2005, the applicant was not required to undergo any further examinations. Therefore, she was entitled to refuse a medical assessment of her functional abilities. 34. The insurance company lodged an appeal against this decision before the Federal Court, criticising in particular the amount of benefits to be granted to the applicant. 35. In its judgment of 29 March 2010, of which the applicant was notified on 19 April 2010, the Federal Court ruled that, in accordance with its earlier jurisprudence (see below § 43), the surveillance of the applicant by private investigators had been lawful and the surveillance file was therefore a valid piece of evidence. After evaluating the surveillance file it found that the medical reports contradicted the images and videos showing the applicant walking her dog, driving a car long distances, going shopping, carrying groceries and opening the boot of the car by moving her arms above her head without noticeable restrictions or unusual behaviour. Moreover, it found that there were discrepancies, not only between the results of the surveillance and the medical reports but also between the medical reports which had been drafted before the surveillance. Finally, the examination of the applicant by a neurologist was necessary and admissible because she had previously refused to undergo an assessment of her functional capacities and a neurological examination, which were required in the circumstances. Accordingly, the Federal Court denied the probative value not only of the medical reports attesting to the applicant’s complete incapacity to work but also of the reports attesting to her incapacity to work of a lesser degree. Therefore, the insurance company had acted correctly in ordering a reassessment of her ability to work through a critical review of all previous medical reports. Following an analysis of this expert opinion report based on evidence, the Federal Court held that its findings were convincing. It quashed the decision of the Social Insurance Court, except for the considerations relating to the interest on arrears. 36. Subsequently the applicant lodged a request with the Federal Court for interpretation of its decision in the light of the established caselaw concerning the probative value of the medical reports. The Federal Court dismissed her request, concluding that she had submitted her application not for the purposes defined in this legal remedy, but rather to argue a violation of Articles 6 and 8 of the Convention. | 1 |
test | 001-145317 | ENG | ROU | CHAMBER | 2,014 | CASE OF STOIAN v. ROMANIA | 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) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 5. The applicant was born in 1961 and lives in Bucharest. 6. On 19 September 1999, at approximately 1 a.m., a police patrol from the Ilfov Police Inspectorate pulled the applicant over in his car and asked him to produce an identity card. He replied that he did not have his identity card with him but that his name was Vasile Stoian and he was a lawyer and a former police officer. The applicant was invited to get out of the car. 7. After a few minutes, he got back into his car and drove off abruptly. According to the police officers, their colleague, A.A., was hit by the applicant’s car while he was trying to stop him. 8. The applicant alleged that he had left because the police officers had physically abused and insulted him. 9. The four police officers involved in the incident contested the applicant’s account of events. They stated that because the applicant had smelled strongly of alcohol, they had asked him to accompany them to a forensic laboratory to determine his blood alcohol content. The applicant had refused, got into his car and left the scene. 10. The police officers got into their car immediately and began chasing him. They also asked the police station for reinforcements. After about five kilometres the police car collided with the applicant’s car, forcing him to stop. The police officers immobilised and handcuffed the applicant. 11. As the applicant again refused to show an identity card, the police officers carried out a body search and a search of his car. 12. The applicant tried to escape, running towards the field to the left side of the road. Being handcuffed, he moved with difficulty. After about twenty metres, the police officers immobilised him again. The applicant claimed that he had been repeatedly kicked by the police officers. 13. One of the police officers had the idea to invite reporters from the “Antena 1” television channel to come to the scene in order to film the incident. Within thirty minutes a group of television reporters had arrived and started taking images of the applicant handcuffed and covered in blood. 14. The police officers continued their search, checking the contents of a bag found in the applicant’s vehicle. Inside the bag they found the applicant’s driving licence. 15. The applicant claimed that the police officers had carried out the search of his bag after breaking its lock despite the fact that he had expressed his intent to open the bag and give them his identity documents. This allegation was confirmed by witness statements and the images filmed by the television reporters. 16. In the end the applicant was taken to the forensic laboratory, where his blood alcohol content was tested. 17. The applicant underwent a medical examination at the National Forensic Institute. According to the medical certificate issued on 19 September 1999, he presented injuries that could have been caused by being hit with a hard object and would need twelve to fourteen days of medical treatment. 18. A few hours after the incident, the four police officers drafted an incident report, presenting their version of the events. The report was signed by V.L. and C.G., who allegedly eye-witnessed the incident. 19. The police officers also drafted a search report describing the items found in the applicant’s bag and car. This report was signed by C.G. and B.F., who were allegedly present when the search was carried out. 20. Other police officers arrived at the scene of the incident, carried out an investigation and drafted an on-site investigation report (raport de constatare la fața locului). According to their report, the Ilfov Police Inspectorate had asked for their intervention because their colleague, A.A., had been hit by a car driven by a person under the influence of alcohol. Their report was signed by V.L., who also signed the incident report. The report presented the same version of events as the incident report. 21. V.L. produced a written statement immediately after the incident, confirming the police officers’ version of events. In later statements made on 7 July 2000, 19 September 2002 and 15 January 2004, he changed his initial version of events, claiming that he had not been present at the scene of the incident. In this regard he admitted that on the night of 19 September 1999, he had been stopped by a police patrol and asked where he was going. After informing them that he was going to the nearby village, the police officers asked him to come back later. He alleged that he had not gone back but that on the following morning, at about 11 a.m., two of the police officers he had met the previous night accompanied by three other police officers had visited him at home. They had dictated a statement to him and asked him to sign it. They also asked him to sign an incident report and a search report, both of which were blank. 22. On 16 August 2004 the prosecutor’s office attached to the Bucharest Court of Appeal initiated a criminal investigation against him for false testimony. It noted that after he had signed the incident and on-site reports and produced a written statement which confirmed the version of events presented by the police officers, he had changed his position, stating that he had not been present at the scene of the incident. 23. On 25 January 2006 the criminal investigation was discontinued because other witnesses present at the scene of the incident stated that they had not seen V.L. on the night of 19 September 1999. 24. On 21 February 2000, C.G. changed his initial statement, claiming that it had been dictated to him by police officers. According to his latest statement he was stopped by police officers only after most of the events had already occurred. He had seen the applicant’s car in a ditch and three police officers approaching with the applicant from a nearby field. He had noticed that the applicant was handcuffed, had blood on his face and appeared to have an injury on his right temple. C.G. had heard the applicant telling the police officers his name and that he was a lawyer. 25. C.G. also stated that he had been present when the police officers invited reporters from the “Antena 1” channel to come and film the incident and that V.L had not been present at the scene of the events. 26. B.F. had been in the same car as C.G. on the night of 19 September 1999. 27. On 22 June 2000 she stated that on the night of the events she had seen the applicant with blood on his face and obvious signs of violence. She also mentioned that she had heard the applicant asking the police officers not to force his bag open because he would open the bag and give them his identity card himself. In her statement of 20 October 2003 she mentioned that the whole of her initial statement, made immediately after the events, had been dictated to her by the police officers. 28. In a statement made on 30 May 2000, E.I. contended that on the night of 19 September 1999 he had seen a police car following a white car. He had also seen the police car forcing the other car to stop and enter a ditch. He had left his car and gone closer to see what had happened. He claimed that he had seen the applicant on the ground and the police officers kicking him. He also claimed that he had heard the applicant crying out in pain and asking them not to kill him because he had children at home. All the police officers had been hitting and insulting him. Afraid to be caught watching the scene by the police officers, he had left, taking the opposite direction in order to avoid a possible meeting with the police car. 29. The following day, he had seen the footage taken by the “Antena 1” reporters and decided to make a statement before the prosecutor. 30. According to the chief prosecutor’s decision of 24 September 2004, on 30 June 2004 E.I. changed his initial statement, admitting that he had not been present at the scene of the events of 19 September 1999 but had been trying to help the applicant. 31. On 20 September 1999 the television channel “Antena 1” broadcast its weekly programme, “the Mobile Squad” (Brigada mobilă). Most of it concerned the applicant’s case. 32. The filmed images were broadcast to a large audience and the applicant was recognised by a large number of people, notably because of his profession as a lawyer. The footage was broadcast again on 23 September 1999 by the same television channel. 33. On 20 September 1999 a criminal investigation was initiated against the applicant for driving a vehicle under the influence of alcohol, causing bodily harm and using insulting behaviour. 34. On 2 August 2000 the prosecutor’s office attached to the Bucharest County Court discontinued the criminal investigation. It held that the offence of driving under the influence of alcohol had not been factually substantiated because according to a forensic report drafted on 19 September 1999, the applicant’s blood alcohol content had been 0.6 %. In connection with the body injury of police officer A.A., it noted that no medical certificate had been included in the file and held that the applicant had had no intent to harm him. In respect of the alleged insulting behavior, it held that no offence had been made out. It also noted that the applicant had got into his car and left the scene because he had been insulted and hit by the police officers. 35. The prosecutor’s decision stated that the police officers “had beaten the applicant, forced his bag, containing personal valuable items, open and invited the television channel “Antena 1” to report on the incident”. It concluded that the applicant had not committed any offence and that the police officers had breached their duties. It indicated that its findings were supported by the witness statements. It concluded by noting that the four police officers had behaved abusively towards the applicant and in order to cover up their actions they had fabricated false evidence. It appears that this decision remained final, as its findings were not challenged 36. On 20 September 1999 the applicant lodged a criminal complaint against the four police officers involved in the incident for theft and bodily injury. He claimed that they had beaten him and stolen 1,600 United States dollars from his bag. He also claimed that he had been handcuffed and unlawfully kept in the police car for about two hours. He added that the police officers had carried out unlawful searches of his car and bag. On 12 November 1999 the applicant added to his initial criminal complaint a new complaint for insult and slander against two of the police officers. The applicant alleged that they had made insulting comments about him while the television reporters were filming him. He based his complaint on Articles 205 and 206 of the Criminal Code in force at that time. 37. On 19 February 2001 a criminal investigation was initiated against the four police officers from Ilfov Police Inspectorate for abuse of authority, forgery of official documents, use of forged documents and instigation to false testimony. The military prosecutor held that on the night of 19 September 1999, while on duty, the police officers had subjected the applicant to ill-treatment, causing him injuries which needed between twelve and fourteen days of medical treatment. He also held that the police officers had tried to cover up their criminal activity by drafting reports which did not reflect what had actually happened and had forced the witnesses to make false statements. 38. On 29 March 2003 the military prosecutor discontinued his investigation in connection with the alleged theft. For the rest of the offences imputed to the police officers, he relinquished jurisdiction in favour of the prosecutor’s office attached to the Bucharest Court of Appeal. 39. On 12 November 2003 the applicant asked for the criminal investigation against the police officers to take other offences into account. He claimed that they had destroyed his bag, mobile phone, and watch bracelet. He again claimed that his honour and reputation had been damaged by the remarks made by the police officers in front of the television camera. 40. The applicant also asked the prosecutor to start an investigation against the police officers who had drafted the on-site report, claiming that they had forced V.L. to sign their report despite the fact that he had not witnessed the events. 41. On 19 August 2004 the prosecutor’s office attached to the Bucharest Court of Appeal decided to discontinue the investigation on the ground that there was no evidence that the police officers had subjected the applicant to illtreatment. Furthermore, he stated that the applicant’s injuries had been self-inflicted and that he had destroyed the bracelet of his watch and his mobile phone himself. The applicant’s complaint for insult and slander was dismissed on the ground that it had not been lodged within the legal time-limit of two months provided by Article 284 of the Code of Criminal Procedure (“the CCP”). In respect of the insulting remarks addressed to the applicant by the police officers, the prosecutor held that they had been justified by the applicant’s attitude. 42. He also pointed out that the body search and the search of the applicant’s bag had been necessary in order to establish his identity. As regards the on-site report, the prosecutor admitted that it had been forged but noted that it could not be established who had signed the report as the police officers denied that they had signed it. Therefore, in order to ensure the identification of the persons who had forged the report, he decided to sever those proceedings and concluded that the offences of forgery and use of forged documents had not been made out. He also held that V.L. had changed his initial statement under the influence of the applicant. His presence at the scene of the incident on the night of 19 September 1999 had been confirmed by all the police officers. 43. The prosecutor decided to sever the proceedings initiated by the applicant against the television reporters and to relinquish jurisdiction in favour of the prosecutor’s office attached to the Bucharest County Court. 44. On 24 September 2004 the chief prosecutor dismissed an appeal lodged by the applicant and confirmed the prosecutor’s decision. 45. The applicant lodged a complaint with the Bucharest Court of Appeal on the basis of Article 2781 of the CCP. On 31 May 2006 the firstinstance court dismissed the complaint, holding that the applicant’s injuries had not been caused by the police officers but had been selfinflicted when he was trying to take off the handcuffs. It based its findings on the initial statements given by witnesses C.G. and B.D. It also held that he had been handcuffed and made to sit in the police car because of his own behaviour. 46. The applicant appealed, claiming that the firstinstance court had simply reiterated the prosecutor’s decision without providing its own reasons. 47. On 22 January 2008 the High Court of Cassation and Justice dismissed the applicant’s appeal, upholding the judgment of the firstinstance court. 48. On 7 October 1999 the applicant lodged a criminal complaint against the reporters and the owners of the “Antena 1” television channel. He claimed a violation of Article 2 of Law 48/1992 (“the Audiovisual Act”). He claimed that the police officers had invited the reporters to film him handcuffed, with his face covered in blood and his clothes torn and dirty. The images had been broadcast without his consent on the following day at peak viewing time and again on 23 September 1999. He also claimed that the images had been accompanied by insulting comments presenting him as an offender despite the fact that he had not committed an offence, as proved by the discontinuance of the criminal proceedings against him. He joined a civil claim to the criminal complaint. 49. On 22 January 2001 the prosecutor decided not to open a criminal investigation. 50. On 4 February 2002 the prosecutor’s office attached to the Bucharest Court of Appeal upheld the decision not to initiate a criminal investigation. 51. The applicant’s appeal against the prosecutor’s decision was dismissed by the Bucharest District Court on 13 February 2004 on the ground that the investigating authorities had not obtained the authorisation of the Telecommunications Ministry and the Audio-visual Council. It held that such authorisation was mandatory for the initiation of a criminal investigation against a television channel under the Audio-visual Act. | 1 |
test | 001-173469 | ENG | TUR | COMMITTEE | 2,017 | CASE OF AYDIN v. TURKEY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) | Stéphanie Mourou-Vikström;Georges Ravarani | 4. The applicant, Mr Gökhan Aydın, is a Turkish national who was born in 1983. He was detained in Tekirdağ F-type prison at the time of the introduction of the application with the Court. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 11 November 2002 the applicant was taken into custody by police officers from the Anti-Terrorist Branch of the Istanbul police headquarters on suspicion of membership of TKP/ML-TIKKO, an illegal organisation. 7. On 14 November 2002 the Istanbul State Security Court ordered the applicant’s pre-trial detention. 8. On 26 December 2002 the public prosecutor at the Istanbul State Security Court filed a bill of indictment charging the applicant and ten other persons with attempting to undermine the constitutional order, an offence prescribed by Article 146 § 1 of the former Criminal Code. 9. Following the promulgation of Law no. 5190 of 16 June 2004, the case against the applicant was transferred to 10th Chamber of the Istanbul Assize Court. 10. During the proceedings, the first-instance courts examined the applicant’s continued detention at the end of every hearing, either on their own motion or upon the applicant’s request. 11. On 25 December 2007, at the end of the hearing and in the presence of the applicant, the 10th Chamber of the Istanbul Assize Court ordered the applicant’s continued detention. The applicant objected to this decision. On 27 December 2007 the 11th Chamber of Istanbul Assize Court dismissed his objection without holding an oral hearing and relying on the public prosecutor’s opinion which had not been communicated to the applicant or his representative. 12. On 24 March 2009 the applicant was convicted as charged and sentenced to life imprisonment. This decision was upheld by the Court of Cassation and became final on 20 January 2011. | 1 |
test | 001-170031 | ENG | RUS | COMMITTEE | 2,017 | CASE OF I.U. v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 7. The applicant was born in 1988 in Margilan, Uzbekistan. He arrived in Russia on 2 October 2014. 8. On 5 September 2014 the applicant was charged in absentia with participation in the extremist religious movement Hizb ut-Tahrir al Islami and activities threatening the constitutional order. On the same day the authorities ordered his pre-trial detention and issued an international search and arrest warrant bearing his name. 9. On 24 December 2014 the applicant was arrested in Moscow. On 26 December 2014 the Cheremushkinskiy District Court of Moscow ordered and subsequently prolonged his detention. 10. On 22 January 2015 the applicant was further charged with organising a local branch of Hizb ut-Tahri al Islami in one of the regions of Uzbekistan. 11. On 23 January 2015 the Uzbek prosecution authorities requested the applicant’s extradition on the above charges. The request included assurances regarding the proper treatment of the applicant, which were formulated in standard terms. 12. On 21 May 2015 the applicant’s extradition in respect of certain charges was authorised by the Deputy Prosecutor General of the Russian Federation. 13. The applicant challenged this decision in the courts, arguing that he belonged to a vulnerable group and therefore faced a real risk of treatment contrary to Article 3 at the hands of the Uzbek authorities. 14. On 13 October 2015 his appeals were dismissed by a final decision of the Supreme Court of the Russian Federation. Without reference to any relevant evidentiary material, the Supreme Court considered that the applicant’s claims were hypothetical and lacked specific indications regarding the level of risk, and observed that the situation in a requesting state might change over time. It also found that the assurances of the Uzbek authorities were satisfactory. 15. On 5 June 2015 the applicant lodged a request for refugee status, referring to persecution in Uzbekistan on religious grounds. 16. On 9 November 2015 his request was refused by a final administrative decision of the migration authorities. The applicant challenged this decision in the courts, referring inter alia to the risk of illtreatment. 17. On 18 May 2016 his appeals were dismissed by a decision of Moscow City Court. 18. On 25 December 2015 the Meshchanskiy District Court of Moscow ordered the applicant’s expulsion for violating the migration rules. The applicant’s appeal, which referred to the risk of ill-treatment, amongst other factors, was dismissed by the Moscow City Court on 24 February 2016. 19. On 16 February 2016 the applicant applied for temporary asylum. No information concerning the outcome of these proceedings was supplied by the parties. | 1 |
test | 001-145274 | ENG | UKR | ADMISSIBILITY | 2,014 | VELIKODA v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applicant, Ms Valentina Nikanorovna Velikoda, is a Ukrainian national, who was born in 1955 and lives in Yenakiyevo, Ukraine. 2 3. The applicant participated in the clean-up operations following the Chernobyl disaster and has special status as “1st category liquidator” (ліквідатор першої категорії). She also has a third-degree disability (третя група інвалідності). 4. The applicant instituted court proceedings to claim pension payments as from 1 December 2008 in the amount of six times the minimum old-age pension and an additional health-damage pension of 50% of the minimum old-age pension, under sections 50 and 54 of the Chernobyl Victims (Status) Act (“Про статус і соціальний захист громадян, які постраждали внаслідок Чорнобильської катастрофи”). 5. On 19 May 2009 the Yenakiyivskyy Town Court found that the applicant, in accordance with section 49 of the Chernobyl Victims (Status) Act, was entitled to a State pension and to an additional health-damage pension. In accordance with sections 50 and 54 of the Act, from 22 May 2008 the applicant was entitled to a pension of six times the minimum old-age pension and should also receive an additional health-damage pension of 50% of the minimum old-age pension. The applicant had requested the recalculation of her pension on 26 November 2008, so her claims in this respect should have been granted for the period between 1 December 2008 and 1 January 2009. On 1 January 2009 the relevant provisions were changed, so the applicant’s claims were rejected. 6. On 19 January 2010 the Donetsk Administrative Court of Appeal amended the decision of 19 May 2009 and granted the applicant’s claims in full as of 1 December 2008. 7. On 14 June 2011 amendments were introduced to the State Budget Act 2011, in accordance with which the amount of the pension under sections 50 and 54 of the Chernobyl Victims (Status) Act was to be determined by the Cabinet of Ministers. The Chernobyl Victims (Status) Act itself was not amended. 8. Pursuant to the amendments in the State Budget Act 2011, on 6 July 2011 the Cabinet of Ministers adopted decision no. 745, which entered into force on 23 July 2011. 9. By letter of 25 January 2012 the Pension Fund of Ukraine informed the applicant that as of 1 January 2012 the amount of her pension would be 1,849.50 Ukrainian hryvnas (UAH) (around 176 euros (EUR)). This amount comprised a minimum pension (UAH 822) and various additional payments. The applicant instituted court proceedings, complaining that as of 1 November 2011 her pension had been reduced despite the court decision of 19 January 2010. 10. On 20 February 2012 the Yenakiyivskyy Town Court rejected the applicant’s claim. It held that as of 22 July 2011 the amounts of the payments under sections 50 and 54 of the Chernobyl Victims (Status) Act were to be established by the Cabinet of Ministers of Ukraine. On 26 December 2011 the Constitutional Court of Ukraine had found these changes to be constitutional. The Cabinet of Ministers had adopted the relevant decision no. 745 on 6 July 2011 and it had entered into force on 23 July 2011. Therefore, from 23 July 2011 the applicant’s pension had to be calculated in accordance with decision no. 745. 11. On 4 April and 3 May 2012 the Donetsk Administrative Court of Appeal and the Higher Administrative Court of Ukraine, respectively, upheld that decision. 12. By the Law of 14 June 2011 the following changes were introduced to the State Budget Act, 2011: “To establish that in 2011 the provisions of sections ...50, 54... of the Chernobyl Victims Act, Children of War Social Protection Act and Military Personnel Pensions Act ... are implemented in the amounts established by the Cabinet of Ministers of Ukraine in accordance with available financial resources in the Pension Fund Budget for 2011.” 13. The State Budget Act for 2012 has similar provisions. 14. On 6 July 2011, in its decision no. 745, the Cabinet of Ministers fixed the amounts concerned. This decision was in force between 23 July 2011 and 1 January 2012. On 23 November 2011 the Cabinet of Ministers adopted further decision no. 1210 on the same matter. 15. The amount of the minimum pension between 1 December 2008 and 1 November 2011 was raised from UAH 498 to UAH 784 (from around EUR 51 to EUR 80). 16. The relevant extracts from this decision read as follows: “1. ... members of Parliament addressed the Constitutional Court of Ukraine with a request to declare unconstitutional ... provisions of the State Budget Act, 2011. According to point 4 of Chapter VII “Closing Provisions” of the 2011 Act, the norms and provisions of sections 39, 50, 51, 52 and 54 of the Chernobyl Victims (Status) Act, section 6 of the Children of War Social Protection Act, and sections 14, 22, 37 and part 3 of section 43 of the Military Personnel Pensions Act are implemented under the conditions and in the amounts determined by the Cabinet of Ministers of Ukraine, in accordance with the available financial resources in the budget of the Pension Fund of Ukraine for 2011. The Members of Parliament consider that by adopting this Act the Verhovna Rada of Ukraine has given the Cabinet of Ministers of Ukraine the right to establish the modalities and amounts of the social payments provided for by the above laws ..., thereby limiting the citizens’ constitutional right to social protection. The authors of the request state that the subject matter of the State Budget Act is an exhaustive list of legal matters, provided for by the Constitution of Ukraine and the Budget Code of Ukraine, which excludes the issue or implementation of other legal acts. ... 2.1 In accordance with part 1 of section 46 of the Constitution of Ukraine citizens have a right to social protection, which includes the right to welfare in the event of total, partial or temporary loss of fitness for work ..., in old age and under other circumstances provided for by law. It is the duty of the State to ensure this constitutional right. ... The size of welfare benefits depends on the State’s social and economic possibilities, but they must secure the constitutional right of every person to a decent standard of living for himself and for his family as enshrined in section 48 of the Constitution of Ukraine. In its decision of 19 June 2001 (case on service record in science) the Constitutional Court of Ukraine pointed out that the amounts of welfare benefits depended on economic factors. The right to a pension, its amount and the amount of separate payments could be related to the financial situation of the State, economic feasibility and social and economic circumstances during different periods of development, as well as to the time of adoption of the relevant legal acts. Furthermore, in its decision of 8 October 2008 on insurance payments, the Constitutional Court of Ukraine pointed out that the modes and amounts of social services and payments to victims ... were determined by the State based on affordability. The Constitutional Court of Ukraine, when examining this issue, also took into account international legal provisions. Thus, according to Article 22 of the Universal Declaration of Human Rights the amounts of social payments and assistance are determined in accordance with the State’s resources. The European Court of Human Rights, in its decision of 9 October 1979 in Airey v. Ireland, considered that social and economic rights are largely dependent on the situation - notably financial - reigning in the State. This conclusion also concerns reductions in welfare benefits, as is noted in the judgment of 12 October 2004 in the case of Kjartan Ásmundsson v. Iceland. Therefore, one of the main elements in the regulation of relations in the social sphere is the principle of proportionality between the social protection of citizens and the financial situation of the State, as well as guaranteeing the right of everybody to a sufficient standard of living. ... Therefore, the social and economic rights provided for by laws are not absolute. The mechanism of implementation of these rights can be changed by the State – in particular because it is impossible to finance them – by way of a redistribution of costs, with the aim of securing the interests of society as a whole. Moreover, these measures can be brought about by the need to prevent or remove a real threat to the economic security of Ukraine, which, according to Article 17 of the Constitution of Ukraine, is the most important function of the State. ... It is unacceptable to introduce legal measures under which the amount of pensions and other social benefits and allowances is lower than the amount indicated in part 3 of Article 46 of the Constitution of Ukraine and insufficient to guarantee a decent standard of living and preserve the beneficiaries’ human dignity, which would be contrary to Article 21 of the Constitution of Ukraine. Thus, the change of method of calculation of certain types of welfare benefits is constitutionally possible until it reaches the limit when the very essence of the right to social protection is impaired.” | 0 |
test | 001-152629 | ENG | GBR | COMMITTEE | 2,015 | CASE OF GARETH TAYLOR v. THE UNITED KINGDOM | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Krzysztof Wojtyczek;Nona Tsotsoria;Paul Mahoney | 5. The applicant was born in 1985 and is currently in detention at HMP Leyhill. 6. He was convicted of offences of sexual activity with a child and breach of a Sexual Offences Prevention Order. In May 2007 he received an indeterminate sentence for public protection (“IPP sentence”). A minimum term (“tariff”) of eighteen months was fixed. 7. He was initially detained at HMP Preston and was transferred to HMP Albany in October 2007. Between December 2007 and April 2008 he incurred seven adjudications for failure to obey or comply with orders and regulations and one adjudication for destroying property. He also underwent assessment of his suitability for a sex offender treatment programme. 8. On 11 January 2008 the applicant was informed of his suitability for the adapted Sex Offender Treatment Programme (“adapted SOTP”). As this was not offered at HMP Albany it was recommended that he transfer to a suitable establishment. 9. On 3 February 2008 the applicant wrote to the National Probation Service (“NPS”) seeking a transfer to another prison to undertake the adapted SOTP. By letter dated 8 February 2008 the NPS Service replied: “I have today spoken to your offender supervisor... I have asked him to try and speed up a transfer for you so that you can at least undertake the adapted SOTP, which you should be suitable for. He says that the only CAT B prison that does this is HMP Hull, but he will try and get you transferred there to do it if possible.” 10. The applicant subsequently complained to HMP Albany on various dates about the failure to transfer him. He was informed that a suitable establishment was being sought. 11. On 5 June 2008 the applicant completed the Enhanced Thinking Skills (“ETS”) course. 12. In around November 2008 the applicant’s tariff expired. 13. In February 2009 a Parole Board Review took place. The Parole Board decided on the papers that the applicant should remain in detention. The Board noted that the applicant had completed the ETS course and would be assessed for, and if found suitable, complete a sex offenders treatment programme. 14. Subsequent correspondence with the Ministry of Justice refers to long prison waiting lists for access to the adapted SOTP and delays in processing applications for prison transfer. 15. By letter dated 3 September 2009 the Secretary of State informed the applicant that he agreed with the Parole Board February 2009 recommendation. He indicated that the applicant was to be assessed for and complete the adapted SOTP. A provisional hearing before the Parole Board was fixed for March 2011. 16. Meanwhile, the applicant was again assessed for suitability for a sex offenders treatment programme. By letter dated 23 October 2009 he was informed that he would be most likely to benefit from the Becoming New Me course (“SOTP BNM”), the replacement for the adapted SOTP. 17. On 24 November 2010 the applicant was transferred to HMP Bure. 18. On 23 December 2010 a Parole Board review took place. 19. On 4 January 2011 the Parole Board notified the applicant of its decision not to direct his release or to recommend his transfer to open conditions. It observed that since his last review the applicant had undertaken training courses in assertiveness skills, understanding the cause of conflict/domestic violence, understanding the boundaries of respectability in relation to children, alcohol awareness and unlocking financial capability. It noted the positive change in his attitude but considered that his risk remained high. It confirmed that he would be required to complete the adapted SOTP prior to release. It concluded: “[We] shared your concern at the fact you have so far been unsuccessful in your attempts to secure a referral to the courses identified as targets on your sentence plan and that furthermore you have recently been moved to a prison that does not run these programmes. However, prisoner location is an operational matter which sits outside of the Parole Board’s remit and is for the prison service and your offender manager to resolve. What does this mean however, is that you remain an untreated sex offender who is unable to demonstrate that the risk you pose has reduced sufficiently to be manageable in the community.” 20. By letter dated 28 March 2011, the Secretary of State agreed with the Parole Board’s recommendation. He referred to the need to complete the SOTP BNM. The applicant’s review period was set at eighteen months consisting of: “ Three months transfer and settling in period in a new establishment Three months assessment for the Becoming New Me programme Six months to complete the Becoming New programme Six months to complete the post Becoming New Me programme report (SARN).” 21. The next parole review was therefore scheduled to commence in January 2012 with the target date for the oral hearing being July 2012. 22. On 8 July 2011 the applicant was transferred to HMP Wymott on his own request on compassionate grounds to be closer to his father, who was unwell. He subsequently asked to remain at HMP Wymott and to be given a place on the SOTP BNM course scheduled to commence in September 2011. As that course was already full, the applicant was informed that he could, if he wished, await the next course to be delivered at HMP Wymott in August/September 2012, for which he would be a priority. 23. On 7 September 2011 the applicant’s representatives wrote to the Governor of HMP Bure and HMP Wymott notifying them that judicial review proceedings were being contemplated against them and the Secretary of State. They sought confirmation that the SOTP BNM course would be made available to the applicant. 24. By letter dated 1 November 2011 HMP Wymott replied in the following terms: “I acknowledge that your client’s initial transfer to HMP Wymott was on compassionate grounds ... The fact that Mr Taylor elected not to return to HMP Bure is a factor that must be considered when determining whether or not his progress through the prison service has been slow ... Although, I would argue that the prompt intervention of his newly appointed Offender Supervisor and the attempts he made to source a suitable course at HMP Wymott would indicate that HMP Wymott were not at fault for any delays to your client’s progress. Your client is known to our Programmes team, is in the assessment process and his post tariff status will ensure that he is prioritised accordingly for the next BNM courses which should be delivered from approximately August/September 2012.” 25. The prison offered to facilitate a transfer to another prison where the applicant might be able to access the SOTP BNM more speedily. He chose to remain at HMP Wymott to await a place on the SOTP BNM there. 26. On 25 April 2012 a Parole Board review took place on the papers. The Board decided not to direct the applicant’s release or recommend his transfer to open conditions. It concluded: “You committed serious index offending, which targeted a vulnerable victim ... The panel was also concerned that, at a young age, you already had a conviction record that included previous violent and sexual offending against vulnerable female victims. It is to your credit that you have some understanding of the risk you pose, and that you are motivated to undertake work to address your sexual offending behaviour. However, you have yet to undertake this work. The panel is also concerned that you have a history of breaching trust and reoffending despite measures being put in place to contain your risk ...” 27. By letter dated 5 July 2012 the Secretary of State indicated that he agreed with the Parole Board recommendation. He confirmed the SOTP BNM as an appropriate course to reduce the applicant’s risk of reoffending. The next review was scheduled to commence in April 2013 and to be concluded by December 2013. 28. The applicant commenced the SOTP BNM as planned on 23 August 2012 and completed it on 2 February 2013. 29. A further Parole Board review took place on 26 February 2014. The Board decided not to direct the applicant’s release, but recommended his transfer to open conditions. | 0 |
test | 001-170354 | ENG | LTU | CHAMBER | 2,017 | CASE OF JANKOVSKIS v. LITHUANIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-3-b - No significant disadvantage);Remainder inadmissible (Article 35-1 - Six month period);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive information);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1961. According to the latest information in the Court’s possession, he was serving a sentence in the Pravieniškės Correctional Home. 6. On 30 May 2006 the applicant wrote to the Ministry of Education and Science (Švietimo ir mokslo ministerija, hereinafter “the Ministry”), requesting information about the possibility of enrolling at university. He mentioned having graduated in 1996 from the Medical Faculty of Vilnius University. The applicant stated that he wished to pursue studies via distance learning to acquire a second university degree (studijuoti neakivaizdiniu būdu aukštojoje mokykloje), this time in “law with a specialisation in human rights” (teisės studijos su žmogaus teisių pakraipa). The applicant mentioned that he was a prisoner and thus could not physically attend the place of study. 7. In a letter of 12 June 2006 sent to the applicant at the Pravieniškės Correctional Home, the Ministry of Education and Science wrote that information about the study programmes could be found on the website <www.aikos.smm.lt>. This website states that it belongs to the Ministry of Education and Science, and is administered by a public entity, the Centre for Information Technologies in Education (Švietimo informacinių technologijų centras), which is a public institution founded by the Ministry of Education and Science. The website contains information about learning and study possibilities in Lithuania. The website states the following about the aims of the “AIKOS” system: “AIKOS is an open system for providing information, consultation and guidance, the main aim of which is to provide information about opportunities for learning in Lithuania. AIKOS provides the possibility of searching information about professions, qualifications, studies and study programmes, educational and science institutions and rules of admission... AIKOS allows users to submit a question to a consultant and to receive a reply ... The information provided in the central part of the AIKOS website under the sections ‘I wish to learn’, ‘I wish to study’, ‘I wish to improve my qualifications’ reflects only the current and most pertinent information relevant to the current academic year and is aimed at those who wish to enter university, vocational school, or a secondary school, or who wish to improve their qualifications. The site also contains historical data regarding education ... AIKOS provides information to three groups of users: adults, children (up to fourteen years of age) and English speakers. The users may use more functions after they have registered on this site. The AIKOS website is refreshed daily, to reflect information about education and science institutions, study and learning programmes and the qualifications a person receives upon graduating from those programmes, ... programmes for improving qualifications... It also provides information from the Lithuanian Labour Exchange about job vacancies and unemployment. The latter information on the AIKOS website is renewed monthly...” 8. On 28 June 2006 the applicant wrote to the Pravieniškės Correctional Home authorities, noting the reply by the Ministry and asking to be granted Internet access to a website “where there was information from the Ministry about studies, as well as to [the applicant’s] email accounts hosted on the Internet sites <www.one.lt> and <www.yahoo.com>”. 9. On 1 July 2006 the Pravieniškės Correctional Home governor replied that the prison authorities did not consider the Ministry’s reply to be comprehensive. In particular, the Ministry had not taken into account the applicant’s particular situation – namely that he was in prison. The prison considered that the Ministry should have provided a comprehensive reply in writing. According to the prison governor, “given that the Ministry’s reply did not satisfy [the applicant], the latter should write to the Ministry again, so that he is provided with a comprehensive reply”. 10. The prison governor also informed the applicant that the request to have Internet access could not be granted because at that time none of the legislation allowed the prisoners to use the Internet or to have a mailbox. For that reason, the Pravieniškės Correctional Home authorities were unable to grant the applicant’s request. 11. The applicant then lodged a complaint with the Department of Prisons (Kalėjimų departamentas), arguing that none of the laws prohibited him from obtaining information from a State institution electronically. The applicant referred to the Ministry’s reply and asked to be granted Internet access. 12. On 26 July 2006 the Department of Prisons responded that the legal instruments regulating the execution of sentences did not permit prisoners to use the Internet. It was suggested that the applicant again ask the Ministry to provide the information he sought. 13. On 1 August 2006 the applicant started court proceedings, referring to his correspondence with the Ministry and challenging the Pravieniškės Correctional Home authorities’ decision not to grant him access to Internet. 14. In their written response to the court, the Pravieniškės Correctional Home authorities noted that, although prisoners had a right to address requests and complaints to the State authorities under Article 100 of the Code of the Execution of Sentences (see paragraph 29 below), this meant correspondence by regular post and not via electronic communication. Furthermore, the use of mobile phones in prisons was prohibited so that prisoners could not continue their criminal activity whilst serving a sentence. According to the Pravieniškės Correctional Home authorities, a number of fraudsters had already cheated people of large sums of money with the help of mobile phones. If the prisoners had the right to use Internet, they could pursue criminal activities and could also coordinate the activities of criminal organisations. Lastly, given that postal correspondence between prisoners was not permitted, providing prisoners with access to the Internet would make that prohibition pointless. The same was true regarding the prohibition in the 1st Annex of the Code of the Execution of Sentences of the prisoners’ possession of topographic maps (see paragraph 30 below). 15. The Prisons Department also asked the court to dismiss the applicant’s complaint, arguing that although Article 96 of the Code of the Execution of Sentences permitted prisoners to use computers (see paragraph 29 below), this did not encompass the right to Internet use. There was no right under Lithuanian law for a prisoner to be provided with Internet access. 16. On 2 February 2007 the Kaunas Regional Administrative Court dismissed the applicant’s complaint. Having reviewed the legal provisions regulating prisoners’ conditions of detention, the court pointed out that the prisoners could communicate with State institutions by postal correspondence and that their letters had to be sent via the prison authorities (see paragraph 33 below). Giving Internet access to prisoners would not be compatible with those legal norms. However, as the Internet was not an object, it was not possible to list Internet among the “objects” which the prisoners were not allowed to have in prison. At the same time, from the existing ban on telephone and radio communication devices in prison it was obvious that this ban included the Internet. Such prohibition was aimed at preventing crimes being committed in prison. The court also observed that the requirements were set by order of the prison authorities and were therefore mandatory for the applicant, as he was under an obligation to obey prison orders. 17. The applicant appealed, disputing the lower court’s interpretation of domestic law. He also argued that the lower court had ignored the fact that the core of his complaint was the restriction of his right to education and the right to obtain information. The applicant relied on Article 25 of the Constitution (see paragraph 28 below), and Articles 10 and 14 of the Convention. 18. The Pravieniškės Correctional Home authorities replied, indicating that there was “a secondary school (vidurinė mokykla) in the prison where students could access all the literature necessary for their studies. The secondary school graduation exams showed good results”. Furthermore, the prisoners could pursue computer literacy studies organised by the Elektrėnai vocational school (Elektrėnų profesinio rengimo centras), and that institution had not asked for Internet access. The prison thus considered that Internet access, or the lack thereof, had no impact on the quality of studies. 19. On 11 December 2007 the Supreme Administrative Court dismissed the applicant’s complaint. The court noted that, for its users, the Internet provided very wide opportunities to use email, to obtain information, to download files, and to sell or buy things. The Internet could be used for more than merely educational purposes. However, the right to use the Internet was not absolute and this right could be restricted to certain social groups. This stemmed from Article 10 of the Code of the Execution of Sentences (see paragraph 29 below). There was no legal provision in Lithuania permitting prisoners to use the Internet. Even so, the prisoners’ right to have computers could not be interpreted so widely as to encompass the right to have Internet access. The Supreme Administrative Court lastly noted that if prisoners had access to the Internet, the prison authorities would be hampered in their fight against crime by being unable to fully monitor the prisoners’ activities. 20. On 30 June 2006 the Elektrėnai Vocational Educational Centre (Elektrėnų profesinio mokymo centras) awarded the applicant a diploma in computer skills. 21. According to the Government, in 2007-2008 the applicant had attended English language courses and computer literacy courses organised by a secondary school in Kaunas region. 22. In 2006 the applicant started court proceedings, arguing that in July 2006 he had been held in the Lukiškės Prison for seven days in degrading conditions. Among other things, he also argued that the Lukiškės Prison authorities had seized the personal computer which the applicant had brought with him into prison. 23. On 15 January 2007 the Vilnius Regional Administrative Court dismissed the claim by the applicant as unfounded. 24. In a final ruling of 12 October 2007, the Supreme Administrative Court concluded that the computer had been unlawfully seized by the Lukiškės Prison authorities. However, the court found that the conditions of the applicant’s detention had been satisfactory overall, except for a few minor details, and that the gravity of those violations was not such as would amount to inhuman or degrading treatment. 25. In 2006 the Pravieniškės Correctional Home authorities granted the applicant’s request for an extended visit by his parents. However, the applicant later committed a disciplinary offence, and for that reason the extended visit was denied. 26. On 4 May 2007 the Kaunas Regional Administrative Court upheld the refusal of the extended visit as legitimate. 27. By a final ruling of 6 February 2008 the Supreme Administrative Court upheld the lower court’s decision. | 1 |
test | 001-168377 | ENG | CHE | CHAMBER | 2,016 | CASE OF EL GHATET v. SWITZERLAND | 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) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The first applicant was born in 1952 and lives in Hausen (Canton of Aargau). The second applicant, who was born in 1990, is the son of the first applicant. He lives in Egypt. 6. The first applicant entered Switzerland in 1997, where he applied for asylum in the same year. At that time, the second applicant remained in Egypt, where he was cared for by his mother. The first applicant’s asylum application was rejected by the competent authorities. 7. In March 1999 the first applicant married a Swiss national and obtained a residence permit. In 2000 a daughter was born to the couple. 8. In 2002 the second applicant visited his father in Switzerland for three months based on a tourist visa valid for that period. 9. In July 2003 the second applicant re-entered Switzerland for purposes of family reunification with his father. 10. In February 2004 the first applicant was granted a permanent residence permit. In August 2004 he obtained Swiss nationality and has since held nationality of both Switzerland and Egypt. 11. After encountering difficulties in school and with his step-mother, the second applicant returned to Egypt in January 2005, where he was cared for by his mother and his paternal grandmother. 12. In 2006 the first applicant separated from his spouse. The latter continued to live in Switzerland with the couple’s daughter. 13. On 1 March 2006 the first applicant lodged a request for family reunification with the second applicant, who was 15 and a half years old at the time and for whom he had custody according to Egyptian law. 14. On 15 February 2007 the Migration Office of the Canton of Aargau refused that request. 15. On 12 March 2007 the applicant lodged an appeal against that decision with the Legal Unit of the Migration Office of the Canton of Aargau. 16. On 6 June 2007 that authority dismissed the appeal. 17. On 26 June 2007 the applicant lodged an appeal against that decision with the Court of Appeal in Foreigners’ Law (Rekursgericht im Ausländerrecht) of the Canton of Aargau. 18. On 7 September 2007 that court granted the applicant’s appeal. In a very detailed decision it noted that the requirements for family reunification under Article 17 § 2 third sentence of the Act on the Residence of Foreign Nationals (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer, ANAG) were not met (see relevant domestic law and practice paragraphs 3133 below). Largely basing its reasoning on Article 8 of the Convention, it considered, however, that the applicants’ interests in respect for their family life prevailed over those of the public. It ordered the Migration Office of the Canton of Aargau to arrange for a residence permit for the second applicant. 19. Subsequently, the Migration Office of the Canton of Aargau declared that it would grant a permanent residence permit to the second applicant for purposes of family reunification and, on 28 January 2008, transferred the file to the Federal Office of Migration to seek the required consent. On 4 March 2008 the latter refused to give its consent, finding that the requirements for family reunification were not met and that the decision of the court of the Canton of Aargau was in contradiction to the case-law of the Federal Supreme Court. 20. On 4 April 2008 the first applicant lodged an appeal against that decision with the Federal Administrative Court, both in his own name and in that of his son. 21. On 30 July 2009 the applicants informed the authorities that the situation of the second applicant had changed. His mother had moved to Kuwait with her new spouse and he was now cared for exclusively by his paternal grandmother. 22. On 2 February 2010 the Federal Administrative Court dismissed the appeal. It noted, first, that the requirements for family reunification under Article 17 § 2 third sentence of the Act on the Residence of Foreign Nationals were not met (see relevant domestic law and practice paragraphs 31-33 below). It found, second, that the applicants could not rely on Article 8 of the Convention, as the second applicant had reached the age of adulthood and was not dependant on the first applicant (see relevant domestic law and practice paragraph 33 below). 23. On 8 March 2010 the applicants lodged an appeal against that decision with the Federal Supreme Court. 24. On 5 July 2010 the Federal Supreme Court dismissed that appeal. It considered, in particular, that the relationship between the two applicants was not paramount (“vorrangig”), even though the first applicant had the right of custody for the second applicant according to Egyptian law. It noted that the first applicant had not applied for family reunification immediately after his arrival in Switzerland, that the second applicant was cared for by his mother and his grandmother in Egypt until he turned 18 years, that the second applicant had lived almost all of his life in Egypt and had more important social and personal ties to his country of origin, which would be negatively affected if he moved to Switzerland, and that he had returned to Egypt after having stayed with his father in Switzerland for one and a half years. It observed that the first applicant had, thus, at that time, preferred that the second applicant lived with his mother and that the second applicant would face even more severe challenges to integration now than he had during his first stay in Switzerland, given his age. While noting that the first applicant had a close relationship to his daughter in Switzerland and that he could, thus, not be expected to relocate to Egypt to live there with the second applicant, the court noted that the applicants had not submitted sufficient reasons to justify the second applicant’s reunion with his father in Switzerland. 25. Moreover, the Federal Supreme Court considered that the circumstances of the present case differed from those of Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, 1 December 2005. The latter concerned a situation where only one parent, the child’s mother, was still alive. The mother had tried to bring her child to the Netherlands as soon as possible after her arrival. Moreover, the child’s grandmother who cared for her in Ethiopia had taken the child out of school against the mother’s will and planned a forced marriage. 26. On 7 October 2010 the Court refused to apply Rule 39 of the Rules of the Court. | 1 |
test | 001-169662 | ENG | BEL | GRANDCHAMBER | 2,016 | CASE OF PAPOSHVILI v. BELGIUM | 1 | Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Georgia);Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life) (Conditional) (Georgia);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Ganna Yudkivska;Guido Raimondi;Helena Jäderblom;Johannes Silvis;Jon Fridrik Kjølbro;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Luis López Guerra;Mark Villiger;Nebojša Vučinić;Paul Lemmens;Robert Spano;Ksenija Turković | 10. The applicant was born in 1958. He lived in Brussels and died there on 7 June 2016. 11. He arrived in Belgium via Italy on 25 November 1998, accompanied by his wife and a six-year-old child. The applicant claimed to be the father of the child, an assertion which the Government contested. The couple subsequently had a child together in August 1999 and another in July 2006. 12. On 29 December 1998 the applicant was arrested and taken into custody on charges of theft. On 14 April 1999 he received a sentence of seven months’ imprisonment, which was suspended except for the period of pretrial detention. 13. In 1999 and 2000 the applicant and his wife were arrested on several occasions in connection with theft offences. 14. On 28 April 2000 the applicant’s wife was sentenced to four months’ imprisonment for theft. 15. On 18 December 2001 the applicant was convicted of a number of offences including robbery with violence and threats, and received a sentence of fourteen months’ imprisonment, which was suspended except for the period of pre-trial detention. 16. On 9 November 2005 the applicant was sentenced by the Ghent Court of Appeal to three years’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation, deception or corruption. 17. Having already spent time in pre-trial detention, he was subsequently detained in Forest Prison and then in Merksplas Prison, where he continued to serve his sentence. 18. On 26 November 1998, the day after their arrival, the applicant and his wife lodged an asylum application. 19. As the applicant’s wife stated that she had travelled through Germany, a request to take back the applicant and his family was sent to the German authorities under the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“the Dublin Convention”). 20. After the German authorities had refused the request, it transpired that the applicant and his family were in possession of a Schengen visa issued by the Italian authorities. A request to take charge of them was therefore sent to the Italian authorities and was accepted on 4 June 1999. 21. On 22 September 1999 the applicant lodged a further asylum application, using a false identity. It was immediately rejected after his fingerprints had been checked. 22. On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the proceedings concerning the asylum application of 26 November 1998 had been concluded on 11 June 1999 with the refusal of the application. 23. On 20 March 2000 the applicant lodged a first request for regularisation for a period of more than three months, on the basis of section 9(3) (since 1 June 2007, section 9bis) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). In support of his request the applicant stated that he and his wife had a daughter born in Georgia before their arrival in Belgium and another daughter born in Belgium in 1999. 24. On 30 March 2004 the Aliens Office declared the request devoid of purpose as the applicant had left the country and been intercepted in Germany. It found that the request was in any case unfounded in view of the fact that the applicant’s medical treatment for tuberculosis had ended (see paragraph 49 below). The Aliens Office also referred to the applicant’s lack of integration in Belgium and the numerous breaches of public order he had committed. 25. On 28 April 2004 the applicant lodged a second request for regularisation of his residence status on the basis of section 9(3) of the Aliens Act. He cited as exceptional circumstances the duration of his residence in Belgium and his integration into Belgian society, the risks that a return to Georgia would entail for his children’s schooling, the fact that he had been the victim of persecution and his state of health. 26. The Aliens Office declared the request inadmissible on 5 April 2007 on the ground that the evidence adduced did not amount to exceptional circumstances for the purposes of section 9(3) of the Act such as to warrant the lodging of the request in Belgium rather than with the competent diplomatic mission or consulate, as was the rule. The Aliens Office noted that the applicant had been allowed to remain in the country for the sole purpose of the asylum proceedings, which had been concluded by a final decision. It also cited as reasons the lack of any need for medical supervision, the applicant’s precarious and unlawful residence status, the absence of a risk of persecution in Georgia and the possibility for the children to continue their schooling in that country. 27. In a judgment of 29 February 2008 the Aliens Appeals Board rejected an application by the applicant to set aside the Aliens Office’s decision. It noted in particular that, since the decision complained of had not been accompanied as such by a removal measure, it could not give rise to a risk of violation of Article 3 of the Convention. 28. On 10 September 2007, relying on the same grounds as those invoked under section 9ter of the Aliens Act (see paragraph 54 below) and on his family situation, the applicant lodged a request for regularisation on exceptional grounds under section 9bis of the Aliens Act. 29. On 7 July 2010 the Aliens Office refused the request for regularisation, taking the view that the protection of the State’s best interests took precedence over the applicant’s social and family interests and that by committing serious punishable acts the applicant himself had placed his family’s unity in jeopardy. That decision was served on the applicant on 11 July 2010. 30. On 26 July 2010 the applicant lodged a request with the Aliens Appeals Board under the ordinary procedure for a stay of execution of the decision of 7 July 2010 rejecting his request for regularisation of his status, together with an application to have that decision set aside. In so far as necessary, the application also related to the order to leave the country issued on the same date (see paragraph 78 below). The applicant alleged a violation of Articles 2 and 3 of the Convention and argued that his serious health problems amounted to exceptional humanitarian circumstances as defined by the Court in D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997III), that he would not have access to treatment in Georgia and that the discontinuation of treatment would lead to his premature death. He further alleged an infringement of Article 8 of the Convention and of the International Convention on the Rights of the Child, on the ground that if he were returned to Georgia he would be separated from his family permanently. 31. The request and application were refused by the Aliens Appeals Board in a judgment of 16 March 2015 on the ground that the applicant had not attended the hearing or been represented. 32. On 5 November 2009 the applicant’s wife lodged a request for regularisation on exceptional grounds under section 9bis of the Aliens Act, relying on her family situation and the duration of her residence in Belgium. 33. On 29 July 2010 she and her three children were granted indefinite leave to remain. 34. In 2006, while the applicant was in prison (see paragraph 17 above), he was diagnosed with chronic lymphocytic leukaemia in Binet stage B, with a very high level of CD38 expression. No treatment was commenced. 35. As his health had deteriorated, the applicant was admitted to the Bruges prison hospital complex from 14 August to 23 October 2007 in order to receive a course of chemotherapy. 36. A report prepared on 11 February 2008 by Antwerp University Hospital, where the applicant was being treated, stated that his condition was life-threatening and that, on the basis of the averages observed in 2007, his life expectancy was between three and five years. The report stated that, following treatment, his white blood cell count had fallen significantly. 37. From 8 to 14 May 2010 the applicant was confined to hospital in Turnhout with respiratory problems. The medical report concerning his stay recommended that the applicant be treated as an outpatient by a lung specialist and a haematologist. This treatment did not materialise on his return to Merksplas Prison, where he was being held. 38. On 22 July 2010 a doctor from Antwerp University Hospital visited the applicant in the Merksplas closed facility for illegal aliens (see paragraph 79 below), to which he had been transferred in the meantime, in order to carry out a full medical check-up. The doctor’s report noted that the applicant’s leukaemia, which was progressing rapidly towards Binet stage C, had not been monitored sufficiently and that a different course of chemotherapy was required. 39. In August 2011 the applicant’s condition worsened and the doctors observed that his leukaemia had progressed to Binet stage C, with anaemia and widespread enlargement of the lymph nodes (life expectancy of twentyfour months). It was decided to switch to a different course of chemotherapy. 40. On 12 September 2012 a doctor from the haematology department of St Pierre University Hospital in Brussels, where the applicant was being treated following his release (see paragraph 82 below), drew up a certificate which stated as follows: “... D. Possible complications if treatment is discontinued. Failure to treat the liver and lung disease could result in organ damage and consequent disorders (respiratory insufficiency, cirrhosis and/or liver cancer). Without treatment, the [chronic lymphocytic leukaemia] could lead to the patient’s death as a result of the disease itself or the effects of serious infections. A return to Georgia would expose the patient to inhuman and degrading treatment. E. Progression and prognosis. Chronic lymphocytic leukaemia (CLL): good if treated, but the risk of relapse is real, so that close monitoring is required even during remission. ...” 41. After a relapse diagnosed in 2013, the doctors in St Pierre University Hospital observed in March 2014 that the applicant’s leukaemia had developed into lymphocytic lymphoma, and his chemotherapy was adjusted accordingly. A positronemission tomography (PET) scan performed on 22 September 2014 showed a lack of response to the chemotherapy, a progression of the disease in the lymph nodes and the liver, and a pulmonary infection. 42. The applicant’s treatment was handed over to the Institut Bordet in Brussels, a hospital devoted exclusively to the treatment of cancer patients. 43. In December 2014 the applicant began to receive a new course of treatment as part of a study. He was given Ibrutinib, designed in particular to improve his overall condition, which had been compromised by complications arising out of the treatment (fungaemia, pulmonary infections, septicaemia and cholecystitis, resulting in his being admitted to hospital on several occasions). The treatment was prescribed in order to improve the applicant’s overall condition in preparation for a donor stem cell transplant. 44. A medical certificate issued on 25 May 2015 by the specialist treating the applicant, Dr L., head of the experimental haematology laboratory at the Institut Bordet, stated that the patient’s viral load was stable. The doctor stressed that discontinuing treatment would result in the patient’s death. Because of the patient’s immunosuppression and the aggressive nature of the leukaemia, treatment in a specialised haematology unit was necessary, as was a donor stem cell transplant, which offered the only remaining prospect of a cure provided that it was performed during the two-year “window of response” to Ibrutinib. 45. The applicant stated that the stem cell transplant, originally scheduled to take place in April 2015, had not been performed to date because he did not have a residence permit in Belgium as required by the Organ Removal and Transplant Act of 13 June 1986. 46. On 14 July 2015 a new medical report was prepared by Dr L. which read as follows: “The patient’s CLL [chronic lymphocytic leukaemia] ... The patient has been suffering from CLL for nine years (diagnosed in 2006), and by 2011 had already reached stage C and Rai IV [stage IV according to the Rai criteria]. He had already had three lines of treatment prior to Ibrutinib, which he is currently taking, and was refractory to the third line of treatment (R-CVP chemotherapy). It is clear from the medical literature that if Ibrutinib is discontinued in such a situation, the average life expectancy is three months. ... The literature also shows that only 7% of patients being treated with Ibrutinib achieve complete remission. Mr Paposhvili is currently in partial remission and is thus wholly dependent on the treatment. This is a new targeted therapy to which he would have no access in his country of origin. With continuous treatment the patient’s prognosis is more favourable, with an 87% survival rate after three years. ... CLL and especially treatment with Ibrutinib can give rise to serious complications which fully justify regular supervision in a specialised setting. This is particularly true since the patient is in a weak state and has a serious medical history (tuberculosis and stroke) and significant comorbidities (active chronic hepatitis and COPD [chronic obstructive pulmonary disease]). ... In the case of a young person – Mr Paposhvili is only 57 – the current guidelines advocate using Ibrutinib in order to obtain the best possible response, followed by a donor peripheral blood stem cell transplant. A HLA [human leukocyte antigen] matched donor has been identified for the patient. Although risky, a donor transplant offers the only prospect of a cure for the patient; he would be unable to have such a transplant in his country of origin. ... Conclusions The [Aliens Office’s medical adviser] concludes ... [that] the condition of the patient’s vital organs is not directly life-threatening. That all depends on what is meant by ‘directly’. The patient is suffering from a cancer that is potentially fatal in the short term (median survival time nineteen months) ... and most likely within six months without appropriate treatment. Moreover, if the treatment is not tailored to the patient’s overall immunosuppression, there is a serious risk of death caused by infection, especially in a Gold stage II COPD patient with a history of tuberculosis. ...” 47. On 1 August 2015 treatment with Ibrutinib became eligible for reimbursement in Belgium. 48. Because of the side-effects of this treatment, which might compromise the donor transplant, the dose of Ibrutinib was reduced from three doses to one dose per day. 49. In 2000 the applicant was diagnosed with active pulmonary tuberculosis. He was treated for that condition under the emergency medical assistance and social welfare assistance schemes. 50. During 2008 the applicant’s tuberculosis was found to have become active again. 51. As a result of that disease the applicant developed chronic obstructive pulmonary disease, for which he received treatment. 52. In addition, the applicant suffered from hepatitis C, which was also diagnosed in 2006 and was probably linked to a history of drug abuse. It was accompanied by liver fibrosis. According to a medical report dated 24 April 2015 his hepatitis, which had been treated effectively in 2012 and 2013, had become stable. 53. A magnetic resonance imaging scan carried out in March 2015 showed that the applicant had suffered a stroke, resulting in permanent paralysis of the left arm. The effects of the stroke were managed with an anti-epilepsy drug. 54. On 10 September 2007, relying on Articles 3 and 8 of the Convention and alleging, in particular, that he would be unable to obtain treatment for his leukaemia (see paragraph 34 above) if he were sent back to Georgia, the applicant lodged a first request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act. 55. On 26 September 2007 the Aliens Office refused the request on the ground that, under section 9ter(4) of the Act, the applicant was excluded from its scope on account of the serious crimes which had given rise in the meantime to a ministerial deportation order issued on 16 August 2007 (see paragraph 73 below). 56. On 17 December 2007 the applicant lodged a request for a stay of execution of that decision under the ordinary procedure, together with an application to set aside. He alleged in particular that the Aliens Office had relied exclusively on the ministerial deportation order in excluding him from the scope of section 9ter of the Aliens Act, without investigating his state of health or the risk he ran of being subjected to treatment contrary to Article 3 of the Convention, and without weighing up the interests at stake as required by Article 8 of the Convention. 57. In a judgment of 20 August 2008 the Aliens Appeals Board dismissed the applicant’s claims in the following terms: “It is clear from the wording of [section 9ter] that there is nothing to prevent the administrative authority, when dealing with a request for leave to remain on the basis of the above-mentioned section 9ter, from ruling immediately on the exclusion of the person concerned from the scope of the said section 9ter without first being required to take a decision on the medical evidence submitted to it, if it considers at the outset that there are substantial grounds for believing that the person concerned has committed any of the acts referred to in section 55/4, cited above. Indeed, the examination of that evidence is superfluous in such a situation since the person responsible for taking the decision has in any event already decided that the individual is excluded from the scope [of section 9ter]. ... As regards the alleged violation of Article 3 of the Convention, it should be observed that the decision complained of in the present application is not accompanied by any removal measure, with the result that the alleged risk of discontinuation of treatment in the event of the applicant’s return to Georgia is hypothetical.” 58. The Aliens Appeals Board also dismissed the complaint under Article 8 of the Convention in view of the fact that the impugned decision had not been accompanied by any removal measure. 59. In the meantime, on 3 April 2008, the applicant had lodged a second request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act. In addition to his various health problems he referred to the fact that he had been continuously resident in Belgium for eleven years and had lasting social ties in that country, and to his family situation. He also argued that if he was sent back he would be left to fend for himself while ill in a country in which he no longer had any family ties and where the medical facilities were unsuitable and expensive. 60. The request was refused by the Aliens Office on 4 June 2008 for the same reason it had cited previously (see paragraph 55 above). 61. On 16 July 2008 the applicant lodged an application with the Aliens Appeals Board to have that decision set aside. 62. In a judgment of 21 May 2015 the Aliens Appeals Board rejected the application to set aside. It held that, where the above-mentioned exclusion clause was applied, the Aliens Office was not required to rule on the medical and other evidence contained in the request for regularisation. According to the Aliens Appeals Board, such examination was superfluous by virtue of the exclusion clause alone. The Board pointed out that its task was to review the lawfulness of the measure. This review did not permit it to substitute its own assessment of the facts that were deemed to have been established and were not apparent from the administrative file; rather, its task was confined to ensuring that the formal requirement to provide reasons had been complied with and that the reasoning was not based on a manifest error of assessment. As to the complaints alleging a violation of Articles 2 and 3 of the Convention, the Aliens Appeals Board stated that the assessment of the medical situation of an alien facing removal whose request for regularisation had been rejected should be carried out, as applicable, at the time of enforcement of the removal measure. 63. On 22 June 2015 the applicant lodged an appeal on points of law against that judgment with the Conseil d’État. One of the grounds of appeal was based on Articles 2 and 3 of the Convention. The applicant submitted that the Aliens Appeals Board could not have been unaware that several orders to leave the country had already been issued against him prior to the decision not to examine his request for leave to remain, and that his expulsion had been suspended only as a result of the interim measure applied by the Court (see paragraph 87 below). The applicant further argued that the Aliens Appeals Board had breached the provisions of the Convention by postponing until the date of enforcement of the removal measure the examination of the medical situation of an alien suffering from a serious illness who had requested leave to remain on medical grounds, without studying the specific risks. 64. In an order of 9 July 2015 the appeal on points of law was declared inadmissible. The Conseil d’État held that, contrary to the applicant’s assertion, the grounds for setting aside advanced before the Aliens Appeals Board had simply stressed, in a theoretical and general manner, that section 9ter of the Act encompassed the application in domestic law of the obligation under Articles 2 and 3 of the Convention prohibiting the removal of a seriously ill person if such a measure was liable to result in death or inhuman and degrading treatment; no specific explanation had been given, however, as to how the applicant himself risked facing that situation. The Conseil d’État also observed that the applicant had not argued before the Aliens Appeals Board that orders to leave the country had been issued against him, or that a removal measure could be revived; he was therefore unable to rely on those arguments in his appeal on points of law. In any event, the Conseil d’État held that the Aliens Appeals Board had in no way erred in finding that the examination of the medical situation of an alien facing removal whose request for leave to remain had been rejected should be carried out, as applicable, at the time of enforcement of the measure. 65. The applicant was requested to report to the Aliens Office’s medical service on 24 September 2012 for a medical check-up and to enable the Belgian authorities to reply to the Court’s questions. 66. The report prepared by the medical adviser on that occasion listed the consultations held and the treatment that had been administered to the applicant. It stated that his leukaemia had stabilised after several cycles of chemotherapy and was being monitored closely, and that the applicant was under medical supervision for his lung disease. 67. Referring to the Court’s judgment in the case of N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), the report concluded as follows: “On the basis of this medical file it cannot ... be concluded that the threshold of severity required by Article 3 of the Convention, as interpreted by the Court, has been reached ... It appears from the medical file that the diseases to which the medical certificates refer ... do not disclose a direct threat to the patient’s life. The conditions from which the applicant suffers are serious and potentially fatal but are currently under control. None of the patient’s vital organs is in a condition that is directly life-threatening. His hepatitis C is not currently causing any cirrhosis. The pulmonary disease is being controlled by treatment consisting solely of an inhaled corticosteroid. The patient’s haematological disorder is currently stable. The lymph nodes are no longer swollen and the patient’s haemolytic anaemia is resolved. Chemotherapy has been discontinued for the time being. ... Neither monitoring of the patient’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient’s survival. The disease cannot be considered at present to be in the terminal stages. ... The patient is close to Binet stage A at present. His chronic obstructive pulmonary disease is also currently under control.” 68. A medical report drawn up on 23 June 2015 by the medical adviser to the Aliens Office provided a detailed review of the applicant’s clinical history and current state of health and the treatment being administered. It concluded as follows: “On the basis of [the] medical file it cannot therefore be concluded that the threshold of severity set by Article 3 of the Convention, which requires a risk to life on account of the applicant’s critical condition or the very advanced stage of his or her illness, has been reached (N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008, and D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997III). The diseases referred to in the most recent update to the medical file ([Dr L.], 25 May 2015) ... do not disclose: – a direct threat to the life of the patient. The illnesses from which the applicant suffers are serious and potentially fatal but are currently under control. ... – that the condition of the patient’s vital organs is directly life-threatening. ... – a critical state of health. Neither monitoring of the patient’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient’s survival. The disease cannot be said to be in the terminal stages at present ...” 69. On 10 June 1999, on the grounds that the Belgian authorities did not have responsibility under the Dublin Convention for examining the asylum application, the Aliens Office issued an order for the applicant and his wife to leave the country with a view to their transfer to Italy. However, their departure was postponed because the applicant’s wife was pregnant. 70. After the birth, the family was granted leave to remain until 14 October 1999 because the new-born baby was in hospital. Their leave to remain was subsequently extended until 15 March 2000 on the ground that the child needed regular supervision by a paediatric gastroenterologist. 71. The time-limit for enforcement of the order for the family to leave the country was extended several times during the first half of 2000 because of the need to treat the applicant’s tuberculosis (see paragraph 49 above) and the six-month course of anti-tubercular treatment required by the whole family. 72. On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the time-limit had been extended until such time as the applicant and his child were fully recovered. 73. On 16 August 2007, while the applicant was serving a prison sentence (see paragraph 17 above), the Minister of the Interior, in a deportation order issued under section 20 of the Aliens Act, directed the applicant to leave the country and barred him from re-entering Belgium for ten years. The order referred to the applicant’s extensive criminal record, allied to the fact that “the pecuniary nature of the offences demonstrate[d] the serious and ongoing risk of further breaches of public order”. 74. The order became enforceable on the date of the applicant’s release but was not in fact enforced because the applicant was undergoing medical treatment at the time. 75. The applicant, who was in hospital, did not contact his lawyer in order to lodge an application to have the ministerial order set aside. However, on 15 November 2007 the lawyer lodged an application on his own initiative. In a judgment of 27 February 2008 the Aliens Appeals Board rejected the application as being out of time. 76. In the meantime, as the applicant was about to finish serving the prison sentence imposed in 2005, he was transferred on 14 August 2007 to Bruges Prison with a view to implementation of the ministerial deportation order. He remained there until 27 March 2010, when he was transferred to Merksplas Prison. 77. During his time in Bruges Prison the applicant was visited on an almost daily basis by his wife and/or his children. The authorities of Merksplas Prison, to which he was subsequently transferred and where he remained until 11 July 2010, informed the applicant that they did not have a record of the number of visits he had received. 78. In parallel with its decision of 7 July 2010 refusing the applicant’s request for regularisation on exceptional grounds (see paragraph 29 above), the Aliens Office on 7 July 2010 issued an order for him to leave the country, together with an order for his detention. These orders, made on the basis of section 7(1)(1) of the Aliens Act, were served on the applicant on 11 July 2010. 79. Also on 7 July 2010 it was decided that the applicant should be transferred on 13 July to the Merksplas closed facility for illegal aliens with a view to his removal to Georgia. 80. On 16 July 2010 the Georgian embassy in Brussels issued a travel document valid until 16 August 2010. 81. On the same day the applicant lodged a request for a stay of execution under the ordinary procedure, together with an application to set aside, directed specifically against the above-mentioned order to leave the country of 7 July 2010. 82. On 30 July 2010, two days after the indication by the Court of an interim measure (see paragraph 87 below), an order was made for the applicant’s release and he was given until 30 August 2010 to leave the country voluntarily. 83. In a letter dated 30 August 2010 counsel for the applicant applied for an extension of the time-limit for enforcement of the order to leave the country. The time-limit was initially extended until 13 November 2010 and was subsequently extended several times until 19 February 2011. 84. On 18 February 2012 the Aliens Office issued an order to leave the country “with immediate effect” pursuant to the ministerial deportation order of 16 August 2007. 85. The above-mentioned request and application were rejected by the Aliens Appeals Board in a judgment of 29 May 2015 on the ground that the applicant had not attended the hearing or been represented. 86. In the meantime, on 23 July 2010, the applicant applied to the Court for interim measures under Rule 39 of the Rules of Court. Relying on Articles 2, 3 and 8 of the Convention, he alleged that if he were removed to Georgia he would no longer have access to the health care he required and that, in view of his very short life expectancy, he would die even sooner, far away from his family. 87. On 28 July 2010 the Court indicated to the Belgian Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to suspend enforcement of the order for the applicant to leave the country issued on 7 July 2010 “pending the outcome of the proceedings before the Aliens Appeals Board”. 88. The applicant was arrested on several occasions between 2012 and 2015 for shoplifting. 89. In addition, in July 2013 the Aliens Office was contacted by the Luxembourg police and customs cooperation centre, which reported that the applicant was in detention in the Grand Duchy of Luxembourg. 90. In May 2014 a warrant was issued for the applicant’s arrest for theft. The applicant was detained in Bruges Prison and released a few days later. 91. Two notarised deeds of sale dated 24 March and 5 August 2015 record the transfer by the applicant, represented by E.B., to a certain Aleksandre Paposhvili, of a plot of building land for a sum of 30,000 euros (EUR) and a plot of farmland for a sum of EUR 5,000. Both plots are located in the village of Kalauri in the Gurjaani region of Georgia. | 1 |
test | 001-159205 | ENG | POL | CHAMBER | 2,015 | CASE OF SZAFRAŃSKI v. POLAND | 2 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1963 and is currently in detention in Wronki. 6. The applicant has been serving a prison sentence in Wronki Prison since 31 March 2010. 7. On 19 September 2010 he brought a civil compensation claim before the Szamotuły District Court. He claimed that the conditions of detention in many of his cells in Wronki Prison were so bad as to amount to a breach of Articles 3 and 8 of the Convention. He referred to the fact that the cells were not properly heated in the autumn and winter and had no proper ventilation in the summer, meaning that the prisoners suffered from intense levels of heat. The windows were old and the frames leaked. He further submitted that the toilet facilities were only separated from the cells by a low fibreboard partition, which made even a minimum level of privacy impossible for him. 8. On 21 June 2011 the Szamotuły District Court refused a request by the applicant to gather evidence by producing photographs and carrying out an on-the-spot inspection of the cells concerned. It closed the hearing and gave judgment, dismissing the applicant’s claim in its entirety. The court established, referring to evidence submitted by the State Treasury, acting as the legal representative for Wronki Prison, that prisoners had access to sports, cultural and educational activities and medical care. They were provided with personal hygiene items and had appropriate food. Those factors, seen as a whole, alleviated the harm which was an inherent part and consequence of serving prison sentences. The court further found that the toilet facilities in the applicant’s cells were indeed separated off by fibreboard partitions. This did not provide full privacy, but was sufficient to ensure that the prisoners were out of sight of others when they used the toilet. There was a WC and a washbasin in each toilet facility. As regards the applicant’s allegations of inadequate ventilation and insufficient heating in the cells, the court found that the cells were well lit and properly ventilated; the windows had been repaired and the heaters had been changed and worked properly. As regards the alleged lack of light, the court found that the applicant had been granted special permission to use an additional reading lamp. The court was of the view that the State Treasury had not acted unlawfully and that there had been no intention to act in bad faith or to cause harm or damage to the applicant. In the absence of unlawfulness no breach of personal rights could be found. In any event, the conditions in Wronki Prison were not so harsh as to amount to a breach of personal rights. 9. The applicant appealed, arguing that the court had failed to establish the facts of the case correctly, in the main because it had refused to gather evidence in the form of photographs, film or an inspection of the cells. The judgment had therefore been based on insufficient factual findings. Furthermore, in so far as the court had referred to the general conditions in which the applicant served his sentence (quality of the food, medical care, access to cultural and sports activities), those factors had not constituted the basis of his claim. He had complained neither about poor food quality nor about insufficient access to cultural and sports activities. The grounds of his claim had fundamentally related to the sanitary conditions in the cells and, in particular, a lack of privacy when using the toilet. This lack of privacy had been explicitly confirmed by the first-instance court. He reiterated that the lack of a proper divide between the toilets and the cell amounted to a breach of his personal rights and dignity. He further indicated that some of the cells at the prison had toilet facilities that were properly separated from the rest of the cell by normal walls and a door. 10. By a judgment of 6 December 2011 the Poznań Court of Appeal dismissed the appeal, fully accepting the findings of fact made by the firstinstance court and that court’s legal assessment of those facts. In particular, the Court of Appeal was of the view that the nuisance caused by the manner in which cells were fitted with toilet facilities, namely by way of fibreboard partitions, did not exceed the normal difficulties and harm which were inherent in serving a prison sentence. | 1 |
test | 001-164930 | ENG | MDA | ADMISSIBILITY | 2,016 | PROCON S.R.L. v. THE REPUBLIC OF MOLDOVA | 4 | Inadmissible | Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 1. The applicant, Procon S.R.L., is a company registered in Moldova. It was represented before the Court by Mr F. Nagacevschi, a lawyer practising in Chișinău. 2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant company rented part of the basement of a State-owned building (the Ginta-Latină theatre, “G-L”). The premises were equipped for use as a bar (“the bar”). 5. By decision no. 37 of 30 June 1998 the Commission for Privatisation of Rented Property (“the Commission”, a subdivision of the Department of Privatisation and Administration of State Property, “the Department”) allowed the privatisation of the bar and set the initial price at 423,390 Moldovan lei (“MDL”, the equivalent of approximately 57,373 United States Dollars (“USD”) at the time). On 21 August 1998 the Commission adopted decision no. 40 allowing the applicant company to pay the price of the bar. 6. On 5 October 1998 the applicant company received a letter from the Department in which it was invited to appear before it in order to receive information about the modalities of payment, failing which the bar would be offered for privatisation at an auction. 7. On 13 November 1998 the Commission adopted decision no. 42 (“the 1998 decision”) confirming the permission to privatise the bar and setting the final price at MDL 348,676 (the equivalent of approximately USD 47,250 at the time). 8. On 24 December 1998 the applicant company concluded a contract with the Department for the purchase of the bar from the State. The applicant company paid the full price indicated in the contract (MDL 348,676). 9. On 15 January 1999 G-L initiated court proceedings against the Department, seeking to have the 1998 decision overturned and have the bar’s activity suspended. It argued that the type of property which the Commission had allowed the applicant company to buy was part of a building constituting national cultural heritage and was one of the types of property (room with a technical lines hub, common use room for the entire building) not subject to privatisation in accordance with the law. 10. According to the applicant company, at its requests of 5 February and 31 May 1999 it was accepted on the latter date in the proceedings as a third party having its own claims. 11. Following several decisions regarding procedural matters, on 4 May 2000 the Economic Court of the Republic of Moldova rejected G-L’s claim. No appeal was lodged and the judgment became final fifteen days later. 12. The Prosecutor General requested the Supreme Court of Justice to reopen the proceedings as part of an extraordinary remedy. On 28 November 2001 the Supreme Court of Justice agreed and quashed the judgment of 4 May 2000, ordering a re-hearing of the case. 13. On 29 October 2002 G-L added to its earlier claims against the applicant company a request to declare the contract of 24 December 1998 for the sale of the bar null and void. The Department also brought a court action against the applicant company on the same day, seeking the annulment of that contract, since its object was property that could not have been lawfully privatised. 14. In the meantime, on 6 September 2001 the Commission adopted decision no. 89 (“the 2001 decision”) by which it annulled the part of the 1998 decision which had authorised the privatisation of the bar, without giving reasons. 15. On 11 October 2002 the applicant company initiated court proceedings, seeking the overturning of the Commission decision mentioned in the preceding paragraph. In that respect it noted that the relevant part of the 1998 decision allowing the privatisation of the bar had been the subject of judicial proceedings ending with the judgment of 11 October 2000 (see paragraph 25 above), which had become final. 16. The Economic Court of the Republic of Moldova decided to join the proceedings of the applicant company against the Commission (concerning the 2001 decision) with those brought by G-L and the Department against the applicant company (concerning the annulment of the sale of the bar). 17. On 18 November 2002 the same court allowed the applicant company’s claims and rejected those of the Department and G-L. It quashed the 2001 decision as unlawful. The court noted that by the final Economic Court judgment of 11 October 2000 (see paragraph 25 below) the 1999 decision had been quashed, and that that judgment confirmed the lawfulness of the decision to allow the privatisation of the bar. The court went on to examine the substance of the case, and found that the privatisation had not been contrary to any legislative provision. 18. The Department and G-L appealed. The applicant company submitted that it had made the purchase in good faith, and emphasised that it had been the initiative of the Department to privatise the bar and that the applicant had been warned that the bar would be sold at auction if it did not purchase it (see paragraph 6 above). 19. On 12 February 2003 the Supreme Court of Justice quashed the judgment of 18 November 2002. It ruled on the merits of the case and found that the lower court had incorrectly interpreted certain aspects of the relevant legislation and concluded that in accordance with the law G-L’s basement was situated in a building that was part of State property which was not subject to privatisation. Accordingly, it declared null and void the contract for the purchase of the bar from the Department, and ordered restitutio in integrum, the applicant to receive the sum paid during the privatisation. 20. According to the Government, the applicant company was allowed to continue renting the bar from the State. 21. In the meantime, while the first set of proceedings was pending, the applicant company sought to have its title to the bar entered in the Territorial Land Registry (“the TLR”), relying on the 1998 decision and the contract with the Department. The TLR rejected that request on 2 and 16 February 1999 because of the Government decision no. 39 of 22 January 1999, under which the entire building had been transferred for free to the Parliament. On 17 March 1999 the applicant company took legal action against the Department (asking for de facto transfer of the property) and against the TLR (asking it to register the company’s title to the privatised property). 22. On 30 June 1999 the Chişinău Economic Court ordered the TLR to register the applicant company’s title to the bar and issue it with the relevant confirmation, and the Department to transfer the property to the applicant company. The court noted that in accordance with the 1998 decision and the contract between the Department and the applicant company the latter had bought the relevant property and that the Department did not object to the applicant company’s claim, while the TLR was absent. No appeal was lodged and the judgment became final. 23. The Prosecutor General requested the Supreme Court of Justice to reopen the proceedings (recurs în anulare), arguing inter alia that another court action concerning the lawfulness of privatisation (the first set of proceedings) was pending. The Supreme Court of Justice rejected that request on 15 December 1999, noting that if the parallel proceedings referred to by the Prosecutor General resulted in the annulment of the contract for the sale of the relevant property, the judgment of 30 June 1999 could be reviewed in accordance with the law. 24. While the first set of proceedings was still pending, on 10 September 1999 the Commission adopted decision no. 59 (“the 1999 decision”) by which it quashed the part of the 1998 decision regarding the permission to privatise the bar, without giving reasons for doing so. On 21 January 2000 the Department informed the applicant company of that decision, specifying that in reaching it the Commission had taken into account the Government decision no. 39 of 22 January 1999 transferring the building to the Parliament. 25. On 12 July 2000 the applicant company initiated court proceedings seeking to overturn the 1999 decision. On 11 October 2000 the Economic Court of Moldova quashed the Commission’s 1999 decision as unlawful, finding that in the meantime the Government decision no. 39 mentioned above had been overturned by Government decision no. 435 of 10 May 2000. G-L was not a party to those proceedings. 26. On 21 November 2001 the Appeals Chamber of the Economic Court of the Republic of Moldova rejected the Department’s appeal as out of time. The judgment of 11 October 2000 became final. | 0 |
test | 001-182853 | ENG | MNE | COMMITTEE | 2,018 | CASE OF VUJOVIĆ v. MONTENEGRO | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić | 4. The applicant was born in 1973 and lives in Oslo, Norway. 5. On 26 April 2000 criminal proceedings were brought against the applicant and one other person in connection with a traffic accident which had resulted in death of a child. 6. On 25 February 2003 the Court of First Instance in Podgorica convicted the applicant for endangering public traffic and sentenced him and his co-accused to one year and six months’ imprisonment. 7. On an unspecified date in 2006 the High Court in Podgorica quashed this judgment and remitted case back to the Court of First Instance. 8. On 18 April 2007 the Court of First Instance adopted a new judgment and again convicted the applicant and his co-accused. But the court reduced the sentence to one year and four months’ imprisonment. 9. On 13 November 2009 the High Court further reduced the sentence of the applicant’s co-accused, but upheld the judgment of the Court of First Instance in respect of the applicant. 10. The applicant’s subsequent appeal against the judgment of the High Court was rejected on 14 June 2010. 11. Following that rejection, on an unspecified date in 2010, the applicant lodged a further appeal on points of law (zahtjev za ispitivanje zakonitosti pravosnažne presude) with the Supreme Court. 12. On 26 October 2010 the Supreme Court rejected this appeal. 13. On 11 December 2010 the applicant lodged an action for fair redress (tužba za pravično zadovoljenje) with the Supreme Court, complaining about the overall length of criminal proceedings. It was rejected on 31 December 2010. 14. On 19 April 2013 the Constitutional Court rejected the applicant’s ultimate appeal. | 0 |
test | 001-157373 | ENG | RUS | CHAMBER | 2,015 | CASE OF ILKIN v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | András Sajó;Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1977 and lives in Bersenevka, Republic of Mordovia. 6. On 5 March 2009 the prosecutor’s office opened a criminal investigation in response to S.’s complaint that two policemen had extorted money from him by threatening to open a criminal case against him on charges of drug possession. 7. On 23 March 2009 the investigator received information implicating the applicant in said crime. On 30 March 2009 the investigating authorities established where the applicant was officially registered as living. 8. On 2 April 2009 the applicant was charged in absentia with kidnapping (Article 126 of the Russian Criminal Code) and extortion (Article 163 of the Russian Criminal Code). Noting that the applicant might abscond or otherwise interfere with the administration of justice, the investigator considered that the applicant should sign an undertaking not to leave his place of residence and to abstain from improper behaviour. 9. On 3 April 2009 the applicant’s name was put on the list of wanted persons. It was not elucidated in the relevant decision whether any effort had been taken on the part of the investigating authorities to establish the applicant’s whereabouts. On the same day the police informed the investigating authorities of the addresses where the applicant and his father were registered. 10. On 6 May 2010 the investigating authorities established the applicant’s temporary address. 11. On 24 June 2010 the applicant voluntarily went to see the investigator. He was questioned and released on his own recognisance. The next interview was scheduled for 1 July 2010. On that day the applicant duly appeared at the prosecutor’s office where he was arrested. When questioned, he claimed that the authorities had had no grounds to put his name on the list of wanted persons. In particular, he submitted that the investigating authorities had failed to verify his whereabouts or to issue a request for him to appear for questioning. 12. The following day, 2 July 2010, the Ostankinskiy District Court of Moscow authorised the applicant’s pre-trial detention until 1 August 2010. In particular, the court noted as follows: “... the court ... considers that, in view of the [applicant’s] character and the nature of the charges, if released, he might again abscond or otherwise interfere with the administration of justice. [The applicant] is charged with offences entailing a custodial sentence in excess of two years. As is apparent from the evidence submitted, he has absconded before and his name was put on the list of wanted persons. The court concludes that it is impossible to apply more lenient restrictions, such as release on bail. The court considers that there were grounds for the [applicant’s] arrest. It follows from the evidence submitted to the court that [the applicant] could have committed the crime he is charged with. As regards the fact that on 24 June 2009 the applicant voluntarily appeared for questioning, the court does not consider it sufficient to dismiss the [investigating authorities’] request for the [applicant] to be remanded in custody. [The applicant] did not deny that even though his name was on the list of wanted persons, he did not appear for [questioning] for two months.” 13. On 3 July 2010 the applicant lodged an appeal against the court order of 2 July 2010. He addressed it to the Moscow City Court. On an unspecified date the City Court forwarded it to the District Court for processing. According to the Government, on an unspecified date the President of the District Court returned the statement of appeal to the applicant on the grounds that it had been lodged after the deadline. The applicant received the President’s decision on 27 July 2010 and asked the District Court to renew the time allowed for appeal. 14. On 28 July 2010 the District Court extended the applicant’s pre-trial detention until 1 October 2010. The court noted as follows: “When extending the [applicant’s] pre-trial detention, the court has taken into account [his] character. Nevertheless, it does not discern any grounds to cancel or replace the preventative measure previously imposed on [the applicant] ... given that the circumstances underlying the [applicant’s] detention pending trial have not altered. [The applicant] is charged with offences entailing a custodial sentence in excess of two years. Regard being had to the seriousness of the charges and to the fact that he absconded and that his name was put on the list of wanted persons, the court is convinced that [the applicant] might abscond or otherwise interfere with the administration of justice. The court dismisses as unsubstantiated the [applicant’s] allegations that he was unfit for detention because of his state of health. There are no documents in the case file [to the contrary]. Furthermore, the court notes that all persons detained in a remand prison receive the necessary medical assistance as provided for in the applicable legislation.” 15. According to the Government, on 17 August 2010 the District Court reset the time-limit for the applicant’s appeal against the court order of 2 July 2010. 16. On 18 August 2010 the Moscow City Court upheld the decision of 28 July 2010 on appeal. 17. On 25 August 2010 the applicant’s lawyer filed an additional statement of appeal against the court order of 2 July 2010. 18. On 6 September 2010 the City Court adjourned the hearing of the applicant’s appeal against the court order of 2 July 2010 owing to his lawyer’s failure to appear. On 8 September 2010 the City Court held the hearing and upheld the decision of 2 July 2010 on appeal. 19. On 29 September 2010 the District Court further extended the applicant’s pre-trial detention until 1 December 2010 noting as follows: “... the court considers that there are no grounds justifying the lifting or changing of the restrictive measure imposed on [the applicant] ... in the court’s view, the defence’s request to release [the applicant] on bail will not have a restraining effect on the defendant as regards the possibility of him interfering with the administration of justice. Regard being had to the particular complexity of the case and to the scope of the pending investigation, the court considers the investigator’s request to extend the [applicant’s] pre-trial detention well-founded. Accordingly the court rejects the request for bail lodged by [the applicant] and his defence. Regard being had to the above and the seriousness of the charges against [the applicant], the court does not consider it possible to apply a restrictive measure other than to remand the accused in custody ... ” 20. On 25 October 2010 the City Court upheld the decision of 29 September 2010 on appeal. 21. On 29 November 2010 the District Court extended the applicant’s pre-trial detention until 1 January 2011. The court reasoned as follows: “... the grounds underlying the [applicant’s] detention pending trial have not altered. [He] is charged with a grievous offence entailing a custodial sentence in excess of two years; he previously absconded and his name was put on the list of wanted persons; he is not employed and does not have an official source of income; he used to be a policeman and has relevant knowledge and experience; he is privy to the personal data of the victim and a witness. The evidence, the circumstances and the [applicant’s] character presented to the court lead it to believe that, if released, [the applicant] might abscond, continue criminal activities, threaten the victim and the witness, put pressure on them or otherwise interfere with the investigation of the case.” 22. On 27 December 2010 the City Court upheld the decision of 29 November 2010 on appeal. 23. On 28 December 2010 the Butyrskiy District Court of Moscow fixed the trial for 12 January 2011. The applicant asked for release on bail in the amount of 500,000 Russian roubles (RUB) to be paid by his cousin. The court further extended the pre-trial detention in respect of the applicant and the other defendant until 17 June 2011, noting as follows: “Defendant M. is charged with grievous offences. [The applicant] is charged with grievous offences. Accordingly, [the court] considers that there are grounds to believe that, if released, M. and [the applicant] might abscond or otherwise interfere with the proceedings. The court does not discern any circumstances justifying lifting or changing the restriction’s] request for release on bail as unsubstantiated.” 24. On 9 February 2011 the City Court upheld the decision of 28 December 2010 on appeal. 25. On 13 April 2011 the District Court found the applicant guilty of extortion and sentenced him to four years’ imprisonment. On 25 July 2011 the City Court upheld in substance the applicant’s conviction on appeal but reduced his sentence to three years and nine months. 26. On 2 July 2010 the applicant was placed in remand prison no. IZ77/4 in Moscow. He was held there until 8 September 2011 except for one period between October and November 2010 when he underwent medical treatment in remand prison no. IZ-77/1. 27. The applicant was detained in cells nos. 913 and 914 which measured 6 metres by 5.5 metres. The cell was equipped with eight bunk beds, a table, two benches and a metal cabinet used for food storage. The toilet was located some 1.4 metres away from the living area of the cell and offered no privacy. 28. The applicant suffers from chronic gastritis and post-traumatic brain dysfunction. Because of his condition, he was eligible for a special food regime, which was allegedly not provided. His relatives sent him medicine and food while he was in detention. 29. In October-November 2011 the applicant underwent medical treatment in the hospital of remand prison no. IZ-77/1 in Moscow. 30. In response to the applicant’s complaint, the Moscow City Ombudsman made an enquiry as to the medical care provided in the remand prison. The inquiry did not confirm the applicant’s allegations that he had been refused due medical care. The applicant was informed accordingly on 12 November 2010. 31. The Government’s submissions as regards the conditions in which the applicant was transported may be summarised as follows: 32. The Government did not specify the type of compartment the applicant was placed in during the transfer to and from the court-house. According to the documents submitted, on 11 February 2011 during the journey from the remand prison to the court-house, the applicant was placed in a single compartment with another inmate. 33. The Government submitted the following information as regards the measurements and capacity of the prison vans: 34. The vans were ventilated by an opening in the door and by vents in the compartments. They were equipped with heating and lighting. They were cleaned and disinfected daily. The vans were in good working order at all times. During the journey, it was not possible for the inmates to use a toilet. They could use the toilet at the court-house, if necessary. 35. According to the photographs submitted by the Government, each compartment was equipped with two benches located along the longer walls and facing each other. There was no access to natural light. The Government also submitted excerpts from standards for service vehicles intended for the transport of suspects and defendants in criminal cases, which set forth that the seating space per person in the prison van should be at least 0.45 by 0.35 m. 36. According to the applicant, he was transported in a single-occupancy compartment only on two occasions. For the rest of the time, he was transported in a collective compartment which held up to eighteen detainees and measured 3.8 m by 2.35 m by 1.6 m. There were not enough seats for everyone and some people had to stand or sit on someone else’s lap. During the winter the vans were not heated. The ceiling and the walls were covered with ice. The floor in the van was extremely dirty. It was covered with cigarette butts, food crumbs, plastic bottles and bags of urine. The natural ventilation of the van through the hatches was insufficient. All the detainees smoked in the van and the applicant was exposed to second-hand tobacco smoke. The light was off all the time. 37. On the days of the trial, the applicant was placed in a holding cell at the court-house measuring 2.5 by 1.5 metres. It was, according to the applicant, dirty, poorly lit and unventilated. In the winter, the temperature did not exceed +140C. The cell held two or more detainees. There was no toilet in the cell. The applicant spent about eight hours in such conditions. | 1 |
test | 001-182592 | ENG | UKR | COMMITTEE | 2,018 | CASE OF GELETEY v. UKRAINE | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial) | Carlo Ranzoni | 5. The applicant was born in 1984 and lives in Berehove. 6. In the early hours of 22 August 2004 M. was robbed and killed in Berehove, where the applicant was also living. On the same date the applicant and two other people, K.A. and St., were arrested on suspicion of robbing and killing M. 7. According to the applicant, he was apprehended by the police task force at about 10 a.m. on 22 August 2004 in the apartment of his girlfriend and taken to the police station, where he was beaten up and threatened in an attempt to force him to confess to the robbery and murder of M. 8. The case file contains two arrest warrants – one issued by a police officer and another one by the prosecutor investigating the murder (hereinafter “the investigator”), both indicating that the applicant had been arrested by the above-mentioned officials on 22 August 2004 at 6.30 p.m. at their offices. The arrest warrant issued by the investigator indicates that the applicant acknowledged his guilt, had no observations regarding his arrest and that he wished to be legally represented. It bears the applicant’s signature, with no comments. The lower part of the last page of the record contains a printed statement (“довідка”) that was added later (it was dated 2007); this additional statement is signed by the investigator only and asserts that the applicant’s relatives were informed of his arrest. The applicant alleged that his family had been informed of his arrest on the evening of the following day (that is to say 23 August 2004). 9. After his arrest, the applicant signed a record, bearing no time, explaining his rights as a suspect, including the right to remain silent and to consult a lawyer before he was first questioned. The relevant entry in the record indicates that the applicant expressed his wish to be represented by S., a lawyer who lived in Uzhhorod, some 70 kilometres from Berehove, and noted the address of the latter. 10. At about 4 p.m. on 22 August 2004, according to the applicant, and from 9 until 10 a.m. on that day, according to the official record, the applicant was questioned as a suspect by the investigator in the presence of B., a lawyer. The record of the questioning noted that the applicant had been informed of his rights as a suspect from 6.30 until 6.45 p.m. on that day and that a separate procedural document existed in this respect evidencing that he had wished to be legally represented. The handwritten entry in the record furthermore stated that the applicant wanted to have B. as his lawyer and that he acknowledged in full his guilt in respect of the robbery and murder. During the questioning, the applicant provided details regarding the robbery and admitted that he had hit M. in the head with a bat during the robbery but that he had done so instinctively, in self-defence. The applicant did not state what had become of the bat – namely where or in what circumstances he had hidden the bat after the murder. The applicant and B. signed the verbatim record, making no objections as to its contents. B. then left. 11. Later that day, from 8 until 8.30 p.m., the applicant took part in a videotaped reconstruction of the crime in the presence of a forensic expert, an investigator from the local police, two attesting witnesses and the investigator in the case. According to the Government, B. was apparently busy and was not able to participate in the reconstruction. No other lawyer was instructed to assist the applicant during this investigative step. According to the applicant, he repeated his request for S. to be called, but this was not done and he was forced by means of threats to testify. 12. During the reconstruction, which commenced near the place where the bat used for the murder had been hidden, the applicant pointed to the exact place where the bat was; the bat was then uncovered and retained as evidence. A copy of the verbatim record of the reconstruction provided to the Court by the applicant indicates that he was informed of his constitutional right not to incriminate himself. The verbatim record bears a handwritten “not” next to the following printed “agreed to testify”. The relevant part of the text is not visible on the copy of the record provided by the Government. The record furthermore contains the applicant’s statement that he had not been forced to testify by means of any psychological or physical violence. The applicant signed the record without indicating any objections as to its contents next to his signature. 13. At an unspecified time on the same date St. and K.A were questioned as suspects. St., being represented by B. (the same lawyer who represented the applicant), acknowledged his guilt in respect of the robbery. He stated, inter alia, that he had seen the applicant carrying a bat when they had been entering the victim’s house. K.A., having waived his right to legal assistance, admitted that he had taken part in the robbery. He furthermore participated, still unrepresented, in a videotaped reconstruction of the crime during which he stated, inter alia, that he had seen the applicant with a bat in his hands but had not seen who had murdered M. 14. On 23 August 2004 the investigator appointed B. to represent the applicant, and St., and admitted him to the proceedings. 15. On the same day the applicant, in the presence of B., participated in another videotaped reconstruction of the crime in the victim’s house. The applicant admitted his guilt and gave further details about the robbery and murder. He reiterated that he had hit M. on the head with the bat and stated that another suspect in the case had helped him to hide the bat afterwards. 16. On 26 August 2004 the applicant’s mother signed a contract with the lawyer S. concerning her son’s legal representation. On the same date S. contacted the prosecutor, who allowed S. to represent the applicant instead of B. The applicant furthermore made a written statement declaring that he was refusing the services of B. and wanted S. to act as his lawyer. 17. On 8 October 2004 medical experts examined the applicant following his complaint that he had been ill-treated by the police. No injuries were discovered on the applicant’s body. 18. On 14 October 2004 the video recording of the reconstruction of the crime of 23 August 2004 was played to the applicant in the presence of S. The applicant retracted his earlier confession and explained that he had only given it because he had been threatened and beaten up by the police on 22 August 2004. 19. On 2 September 2004, and 20 and 28 January and 17 February 2005 the applicant was questioned in the presence of his defence lawyer but refused to give any evidence. 20. On 19 January 2005 the prosecutors refused to institute a criminal investigation into the applicant’s allegation that he had been beaten up by the police, having found the police officers’ actions to be lawful. 21. On 18 February 2005 the pre-trial investigation was completed and the applicant – together with St. and K.A. – was charged with robbery and murder. It was established that another person, I.K., had also participated in the robbery, but as he had absconded, he would have to be tried separately. 22. During the trial the applicant denied having participated in the robbery and the murder and refused to give any evidence. He stated that his earlier confessions to the crimes should not be admitted as evidence as they had been made under duress and in breach of his defence rights, including his right to be represented by a lawyer of his own choosing. He also argued that the bat which had been retained as evidence and examined by experts during the investigation had not been the same bat as that which he had pointed out during the reconstruction. He supported his allegation by referring to the fact that in the verbatim record, the prosecutor had described the bat as blue, while the experts who had subsequently examined it had described it as grey. 23. In April 2005 the police detained I.K. In the course of the trial St., A.K. and I.K all pleaded guilty to robbery but denied killing M. 24. On 29 August 2006 the Zakarpattya Regional Court of Appeal, acting as the first-instance court, convicted the applicant of murder and robbery and sentenced him to fifteen years’ imprisonment. St., A.K. and I.K. were also found guilty of robbery but acquitted of murder. The hearing was held in the presence of the applicant’s new lawyer, D., who had replaced the lawyer S. on an unspecified date. 25. The court based the applicant’s conviction, among other evidence, on the confessions he had made during his questioning by the investigator on 22 August 2004, the reconstructions of the crime on 22 and 23 August 2004, the statements of his co-defendants that they had seen him with a bat in M.’s house, and physical evidence, including an expert’s report suggesting that the traces of blood found on the bat (the location of which had been pointed out by the applicant during the reconstruction of the crime on 22 August 2004) could have belonged to M. 26. By the same judgment, the court rejected as unsubstantiated the applicant’s submissions that he had made his self-incriminating statements under duress, referring to the results of the medical examination of 8 October 2004 (see paragraph 17 above) and the prosecutors’ decision of 19 January 2005 (see paragraph 20 above). 27. The court also found no violation of the applicant’s defence rights. It noted, inter alia, that on 22 August 2004 the prosecutor’s decision to appoint B. as the applicant’s lawyer had been lawful, because at the material time the applicant had not had a contract with S. for legal representation. It also observed that on 22 August 2004 the applicant had raised no objections to the questioning record. The court also suggested, without giving details, that there had been some technical errors in the procedural documents, in particular as regards the time of the applicant’s arrest and questioning, but that they did not affect the fairness of the respective investigative actions. 28. The court refuted the applicant’s allegation that the bat retained as evidence had been switched with another (see paragraph 22 above), noting that the disparity in the bat’s description by the experts and the prosecutor could have been explained by the fact that the latter was colour blind. 29. The applicant lodged an appeal with the Supreme Court on points of law, reiterating his complaints. He stated, in particular, that he had not been represented by the lawyer of his choice, S., on 22 and 23 August 2004, but by B., who had been appointed by the investigator against the applicant’s will. He further stated that he had not been assisted by any lawyer when he had been forced to confess during the crime reconstruction of 22 August 2004. He also complained about the fact that B. had represented him and his co-accused St. at the same time (see paragraph 13 above) – a conflict of interest (as there had been important discrepancies in their respective statements) that should have prevented him from being allowed to do so. 30. On 12 April 2007 the Supreme Court, acting as the second-instance court, upheld the applicant’s conviction and sentence in his presence. The applicant was not represented by a lawyer during the hearing, but he did not provide any further details in this regard. 31. The Supreme Court found that the applicant’s guilt was proved, inter alia, by the statements he had made during his questioning of 22 August 2004 and during the reconstructions of the crime. It noted in this respect that those statements had been corroborated by other evidence, including the testimony of his co-accused, and concluded that the lower court had correctly admitted the applicant’s self-incriminating statements as evidence. The court also noted that the details of the crime which the applicant had revealed in his statements could not have been known to him unless he had been the direct perpetrator. 32. Without mentioning the applicant’s arguments regarding the alleged breach of his defence rights, the Supreme Court found no procedural violations during the proceedings serious enough to necessitate it quashing the judgment. 33. On an unspecified date the applicant was released from prison. | 1 |
test | 001-148455 | ENG | BIH | ADMISSIBILITY | 2,014 | ĆALDOVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 1. Mr Ivan Ćaldović, Mr Milisav Petković and Mr Milorad Ivanović are citizens of Bosnia and Herzegovina and citizens of Serbia who were born in 1955 and 1950, respectively. Ms Danica Mikić is a citizen of Serbia who was born in 1938. All the applicants live in Serbia. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić. 3. The Serbian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right. 4. The applicants or their spouses were officers of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The present case concerns their attempts to repossess their pre-war flats in Bosnia and Herzegovina. 5. Practically all flats in the former SFRY were part of the system of “social ownership”. They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. All citizens of the SFRY were required to pay a means-tested contribution to subsidise housing construction. However, the amount an individual had contributed was not amongst the legal criteria taken into account with regard to waiting lists for the allocation of such flats. 6. On 6 January 1991 JNA members were offered the opportunity to purchase their flats at a discount on their market value (see the Military Flats Act 1990, Zakon o stambenom obezbjeđivanju u Jugoslovenskoj narodnoj armiji, Official Gazette of the SFRY no. 84/90). Between 1980 and 1988 the applicants, or their spouses, were allocated military flats in Sarajevo (Mr Ćaldović, Mr Petković and Mr Ivanović) and in Mostar (Ms Mikić) which they later purchased under the terms of the Military Flats Act 1990. 7. On 18 February 1992 Bosnia and Herzegovina suspended the sale of military flats on its territory (see the Suspension on the Sale of Flats Decree 1992, Uredba o privremenoj zabrani prodaje stanova u društvenoj svojini, Official Gazette of the Socialist Republic of Bosnia and Herzegovina no. 4/92). The Decree was respected in what is today the Federation of Bosnia and Herzegovina, and those who had purchased military flats located in that Entity could not register their ownership and remained, strictly speaking, occupancy right holders (a purchase contract does not of itself transfer title to the buyer under domestic law). 8. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicants, or their spouses, continued their military careers in the VJ forces and left their flats. They were thereafter allocated tenancy rights of unlimited duration on military flats in Serbia, which some of them even purchased later. 9. During the war, the local armed forces (namely, the ARBH, HVO and VRS forces) assumed nominal control of all non-privatised military flats on the territory under their respective control (Zakon o preuzimanju sredstava bivše Socijalističke Federativne Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96; Odluka o preuzimanju vojnostambenog fonda JNA, Official Gazette of the Republika Srpska no. 16/92; Zakon o sredstvima i finansiranju Armije Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/93, 17/93 and 13/94; Odluka o utvrđivanju namjene i prenošenju prava upravljanja i korištenja sredstvima bivše Socijalističke Federativne Republike Jugoslavije, koje je koristila bivša JNA, a koja se nalaze na području Federacije Bosne i Hercegovine; Official Gazette of the Republic of Bosnia and Herzegovina no. 24/96). Although on 1 January 2006 those forces merged into the armed forces of Bosnia and Herzegovina, non-privatised military flats are still under the nominal control of the Entities. 10. A more detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia in Herzegovina is provided in Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, §§ 5-8, 3 May 2012. 11. The facts of the case, as submitted by the parties, may be summarised as follows. 12. In 1988 the applicant, a JNA officer, was allocated a military flat in Sarajevo. 13. On 4 March 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 636,330 Yugoslav dinars (around 7,486 German marks (DEM) at the time). 14. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces and left Sarajevo. 15. On 10 October 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina (Ministarstvo odbrane Federacije Bosne i Hercegovine; “Ministry of Defence”) allocated the flat to a family of a killed member of the ARBH forces. 16. On 18 August 1998 the applicant applied for the restitution of his flat in Sarajevo. 17. On 28 March 2002 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. The applicant failed to appeal against that decision. 18. On 9 July 2002 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, held that the applicant was neither a refugee nor a displaced person within the meaning of Annex 7 and declined jurisdiction. On 19 November 2002 the restitution commission rejected the applicant’s request for reconsideration of his claim. 19. On 4 November 2003 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace) about the inability to repossess his pre-war flat. 20. On 2 August 2005 the Human Rights Commission (the legal successor of the Human Rights Chamber) rejected his case on non-exhaustion grounds as he had failed to appeal against the first-instance decision of 28 March 2002 (see paragraph 17 above). 21. On 29 July 2011 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade. 22. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 59 below). 23. In 1980 the applicant’s husband, a JNA officer, was allocated a military flat in Mostar. 24. On 13 February 1992 the applicant’s husband bought that flat under the terms of the Military Flats Act 1990. It would appear that the whole purchase price was covered by the contribution he had paid for the housing construction (see paragraph 5 above). 25. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant’s husband continued his military career in the VJ forces and was killed on 16 June 1992 in a military action near Mostar. 26. On 27 May 1996 the applicant was allocated tenancy right of unlimited duration on a military flat in Novi Sad, Serbia. On 15 April 1999 she purchased that flat. 27. On 9 October 1998 the applicant applied to the competent domestic authorities for the restitution of the flat in Mostar (in accordance with the Housing Act 1984, which is still in force, spouses share occupancy rights). 28. On 25 September 2003 her application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 29. On 3 February 2004 the competent Ministry of the Herzegovina-Neretva Canton upheld the first-instance decision of 25 September 2003. 30. On 24 January 2005 the Ministry of Defence allocated the flat to D.L., a member of the HVO forces. 31. On 24 February 2005, following an application for judicial review, the Mostar Cantonal Court upheld the second-instance decision of 3 February 2004. 32. On 19 September 2007 the Supreme Court of the Federation of Bosnia and Herzegovina upheld the decision of 24 February 2005. 33. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 59 below). 34. In 1983 the applicant, a JNA officer, was allocated a military flat in Sarajevo. 35. On 11 February 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 153,500 Yugoslav dinars (around DEM 1,823 at the time). 36. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 2003. 37. On 5 February 1997 the Ministry of Defence allocated the flat to S.H., a member of the ARBH forces. 38. In 29 December 2000 the competent domestic authority rejected the applicant’s request for restitution of his flat in Sarajevo pursuant to section 3a of the Restitution of Flats Act 1998. It would appear that the applicant did not appeal against that decision. 39. On 2 September 2003 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, accepted his application for the restitution. However, on 21 October 2005 the restitution commission accepted the request for reconsideration submitted by the Ministry of Defence and quashed its decision of 2 September 2003. 40. On 11 December 2007 the applicant was allocated tenancy right of unlimited duration on a military flat in Ćuprija, Serbia. 41. On 12 March 2008 the applicant made a new application for the restitution of his flat. On 17 April 2008 the competent domestic authority rejected his application pursuant to section 39e of the Privatisation of Flats Act 1997. 42. On 13 June 2008 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 17 April 2008. 43. On 21 October 2008, following an application for judicial review, the Sarajevo Cantonal Court upheld the second-instance decision of 13 June 2008. 44. On 23 November 2012 the Constitutional Court of Bosnia and Herzegovina found a violation of Article 1 of Protocol No. 1 to the Convention in the applicant’s and thirty-one other cases (decision no. AP 1370/08) as regards the method of determining the amount of compensation envisaged under section 39e of the Privatisation of Flats Act 1997, in line with its decision no. U 15/11 of 30 March 2012 (see paragraph 59 below). 45. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 59 below). 46. In 1983 the applicant, a JNA officer, was allocated a military flat in Sarajevo. 47. On 17 January 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 171,369 Yugoslav dinars (around DEM 2,637 at the time). 48. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces and left Sarajevo. 49. On 24 August 1998 the applicant applied for the restitution of his flat in Sarajevo. 50. On 28 March 2002 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 51. On 27 November 2002 the competent Ministry of the Sarajevo Canton quashed the first-instance decision of 28 March 2002 for procedural reasons. After having examined the applicant’s request, it rejected it on the same date pursuant to section 3a of the Restitution of Flats Act 1998. 52. On 25 August 2005 the Ministry of Defence allocated the impugned flat to A.M., a member of the ARBH forces. 53. The applicant, in the meantime, complained to the Human Rights Chamber about the inability to repossess his pre-war flat and about the length of the proceedings for repossession. 54. On 9 February 2005 the Human Rights Commission found that there had been a violation of Article 6 of the Convention as regards the length of the proceedings for repossession and awarded the applicant 1,000 convertible marks (BAM; approximately 50 euros) in respect of pecuniary and non-pecuniary damage. As regards the complaint about the inability to repossess the pre-war flat, the Commission held that there had been no violation of Article 1 of Protocol No. 1 to the Convention. 55. On 29 January 2007, following an application for judicial review, the Sarajevo Cantonal Court upheld the second-instance decision of 27 November 2002 (see paragraph 51 above). 56. On 5 April 2007 the applicant lodged a constitutional appeal. On 17 September 2009 the Constitutional Court rejected his appeal as manifestly ill-founded. 57. In the meantime, on 20 April 2007 the applicant received compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 59 below) in the amount of BAM 21,098.40 (approximately 10,787.44 euros). 58. On 11 May 2011 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade. 59. On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void (Zakon o preuzimanju sredstava bivše Socijalističke Federative Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96). Thereafter, the legislation regulating this matter, the Privatisation of Flats Act 1997 (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette of the Federation of Bosnia and Herzegovina nos. 27/97, 11/98, 22/99, 27/99, 7/00, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08 and 23/09) and the Restitution of Flats Act 1998 (Zakon o prestanku primjene Zakona o napuštenim stanovima, Official Gazette of the Federation of Bosnia and Herzegovina nos. 11/98, 38/98, 12/99, 18/99, 27/99, 43/99, 31/01, 56/01, 15/02, 24/03, 29/03 and 81/09), underwent numerous changes and all such contracts were declared legally valid. However, two categories of buyer are not entitled to repossess their flats and to register their title to them (see section 39e of the Privatisation of Flats Act 1997 and section 3a of the Restitution of Flats Act 1998). The first category concerns those who served in foreign armed forces after the 1992-95 war. The second concerns those who acquired occupancy or equivalent rights to a military flat in a successor State of the SFRY, like the present applicants. However, they are now entitled to compensation under section 39e of the Privatisation of Flats Act 1997. While the compensation had initially been envisaged as the refund of the amount paid for the flats in 1991/92 plus interest at the rate applicable to overnight deposits, on 30 March 2012 the Constitutional Court (decision no. U 15/11) declared that method of determining the amount of compensation unconstitutional and ordered the Parliament of the Federation of Bosnia and Herzegovina to amend it in line with Đokić (cited above, §§ 63 and 72). 60. For a more detailed analysis of the relevant domestic law and practice and of the relevant international documents, see Đokić (cited above, §§ 35-45) and Mago and Others (cited above, §§ 53-69). D. Relevant Serbian legislation 61. It has no longer been possible to acquire occupancy rights in Serbia since 1992 (see section 30(1) of the Housing Act 1992, Zakon o stanovanju, Official Gazette of Serbia nos. 50/92, 76/92, 84/92, 33/93, 53/93, 67/93, 46/94, 47/94, 48/94, 44/95, 49/95, 16/97, 46/98, 26/01, 101/05 and 99/11). Instead, current and retired members of the armed forces and current and retired staff of the Ministry of Defence have thereafter been entitled to equivalent tenancy rights of unlimited duration on military flats or, in case of a lack of suitable flats, mortgage loans co-financed by the State on condition that they or their spouses or children do not have occupancy or equivalent rights to a flat in any of the former Republics of the SFRY (the Military Housing Ordinance 1994, Pravilnik o načinu i kriterijumima za rešavanje stambenih pitanja zaposlenih u Saveznom ministarstvu za odbranu i Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 30/94, 39/94 and 6/96; the Military Housing Ordinance 1995, Pravilnik o načinu i kriterijumima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 5/95, 18/96, 56/96, 58/96, 42/97 and 9/00; the Military Housing Ordinance 2002, Pravilnik o načinu, kriterijumima i merilima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Ministarstvu odbrane i Vojsci Srbije i Crne Gore, published in an internal gazette of the Ministry of Defence nos. 20/02, 36/03, 34/04 and 29/05; the Military Housing Ordinance 2005, Pravilnik o rešavanju stambenih pitanja u Ministarstvu odbrane, published in an internal gazette of the Ministry of Defence nos. 38/05, 16/08, 26/08 and 39/08; and the Military Pensioners Ordinances 1994 and 2010, Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence nos. 31/94, 19/95, 26/96, 1/97 and 45/08 and Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence no. 34/10). Therefore, those who occupied military flats in Bosnia and Herzegovina before the war have as a rule been required to give up their rights to those flats in order to qualify for a military flat or a loan in Serbia or Montenegro (see sections 6-7 and 87 of the Military Housing Ordinance 1994; sections 7-8 and 74 of the Military Pensioners Ordinance 1994; and sections 6-7 and 85 of the Military Housing Ordinance 1995). 62. Section 39(2) of the Housing Act 1992 provides that the holder of a tenancy right of unlimited duration in respect of a flat may purchase that flat under the same conditions as an occupancy right holder. | 0 |
test | 001-141205 | ENG | ROU | ADMISSIBILITY | 2,014 | KATTAN v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 1. The applicant, Mr Mohamed Majdi Kattan, is a Syrian national, born in 1973 and living in Ţăndărei. He was represented before the Court by Mr I. Dan, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On an unspecified date a third party brought criminal proceedings and joined civil claims against the applicant for attempted fraud and forgery. 5. On 11 October 2007 the Ialomiţa Prosecutor’s Office indicted the applicant for attempted fraud and forgery and sent his case for trial. 6. By a judgment of 9 June 2008 the Ialomiţa County Court acquitted the applicant in respect of both charges on the basis of statements he had given to the prosecutor’s office and the court, and testimonial and documentary evidence. The prosecutor’s office and the third party appealed against the judgment. 7. By a judgment of 7 October 2009 the Bucharest Court of Appeal dismissed their appeals as unfounded on the merits. The prosecutor’s office and the third party lodged an appeal on points of law (recurs) against the judgment before the High Court of Cassation and Justice (“the Court of Cassation”). 8. On 5 February 2010 the Court of Cassation summoned the applicant to its first hearing of the case, listed for 23 February 2010. On the same date, a bailiff posted the summons on the applicant’s front door and on the Ţăndărei local council noticeboard because no one could be found at the address in the town chosen by the applicant for correspondence with the domestic courts. 9. By an interlocutory judgment of 23 February 2010 the Court of Cassation noted that although he had been lawfully summoned, the applicant had failed to attend the hearing. In addition, it allowed a request by the applicant’s chosen legal representative seeking an adjournment of the hearing in order to familiarise himself with the case and the reasons for the prosecutor’s office’s and third party’s appeals on points of law. It also ordered that the applicant be summoned to the next hearing, listed for 20 April 2010. 10. On 17 March 2010 the bailiff posted the summons for a second time on the applicant’s front door and on Ţăndărei local council noticeboard because again no one could be found at the address in the town chosen by the applicant for correspondence with the domestic courts. 11. By an interlocutory judgment of 20 April 2010 the Court of Cassation noted that although he had been lawfully summoned, the applicant had failed to attend the hearing. It also noted that the applicant’s chosen legal representative had submitted before it that the applicant had not left the country, and that he would contact his client and ask him to appear before the court. In addition, it ordered that the applicant be summoned to the next hearing, listed for 1 June 2010, with a specific direction on the summons which stated “mandatory attendance before the court in order to be heard” (prezența obligatorie la instanță pentru a fi audiat). 12. By an interlocutory judgment of 1 June 2010 the Court of Cassation noted that the applicant had not been lawfully summoned to the hearing and adjourned the proceedings until 14 September 2010. It ordered that the applicant be summoned in accordance with its directions of 20 April 2010. 13. On 22 June 2010 the bailiff posted the summons for a third time on the applicant’s front door and Ţăndărei local council noticeboard because again no one could be found at the address in the town chosen by the applicant for correspondence with the domestic courts. The summons included the specific direction given by the Court of Cassation on 20 April 2010. 14. By an interlocutory judgment of 14 September 2010 the Court of Cassation noted that although he had been lawfully summoned, the applicant had failed to attend the hearing. In addition, it allowed the applicant’s chosen legal representative and the other parties to submit observations on the merits of the case, and afterwards adjourned the proceedings pending deliberation. 15. By a final judgment of 3 November 2010 the Court of Cassation allowed the Ialomiţa Prosecutor’s Office’s and third party’s appeals on points of law on the basis of the evidence available to it, quashed the judgments of the lower courts, convicted the applicant of attempted fraud and forgery and sentenced him to three years and four months’ imprisonment. 16. The applicant lodged an extraordinary appeal (contestaţie în anulare) against the final judgment of 3 November 2010. He argued, inter alia, that the final-instance court had breached the applicable rules of criminal procedure and Article 6 of the European Convention on Human Rights because it had convicted him without hearing evidence from him after he had been acquitted by the lower courts. 17. By a final judgment of 4 April 2011 the Court of Cassation dismissed the applicant’s extraordinary appeal. It held that after the applicant had been acquitted by the lower courts, the Court of Cassation sitting as court of final appeal had had a duty to hear evidence from him in accordance with the applicable rules of criminal procedure. However, although the applicant had been summoned at the correspondence address he had chosen himself, he had failed to attend the hearings. Also, he had not indicated, either through his chosen legal representative or by way of written submissions, his wish for the court to hear evidence from him directly or the objective reasons preventing him from attending the hearings. The final-instance court had summoned the applicant in exactly the same way the lower courts had done. Furthermore, during the proceedings before the first-instance court the summoning of the applicant through the procedure he was contesting had not prevented him from appearing before the court, from being heard by it or from submitting arguments in his defence, either directly or through the same chosen legal representative who had represented him during the entire course of the proceedings. At no stage of the proceedings had the applicant or his legal representative asked the court to summon him at a different address. Consequently, it could not be held that the final-instance court had lacked diligence in determining if the applicant was living at the address indicated by him. The court had assumed that as long as the applicant had been lawfully summoned, he had been familiar with the proceedings and had opted not to appear before the court. In fact, his conduct had been similar to the conduct he had displayed before the second-instance court, in that he had failed to attend the hearings despite having been lawfully summoned to do so, and had chosen to be defended exclusively through his chosen legal representative. It further dismissed the applicant’s argument that he had not been familiar with the proceedings because he had not been in contact with his chosen legal representative, on the grounds that they had signed separate legal representation contracts for each stage of the proceedings, and that on 20 April 2010 the applicant’s legal representative had informed the court about his whereabouts and had pledged to ensure his client’s attendance before it. 18. Articles 38514 § 2 and 38516 provide that it is mandatory for the finalinstance court to hear direct evidence from an accused when the lower courts have acquitted him or her. Where an appellate court quashes a judgment delivered by a lower court, it has to decide on the evidence to be adduced and set a date on which to take statements from the accused directly if the latter has not been heard or if he or she has been acquitted by the lower court. 19. Articles 183 § 1 and 184 §§ 1 and 4 provide that if a summoned person fails to appear before the court, and her attendance or direct evidence is required, he or she can be taken before the court on the basis of an order to appear (mandat de aducere). The order to appear is enforceable by the national police, the gendarmes or the local police. If the person responsible for enforcing the order to appear is unable to find the intended recipient of the order at the address indicated, he or she must open an investigation. If the investigation remains fruitless, he or she must draft a report outlining the investigative steps that have been carried out. 20. Article 38515 § 2 (d) provides that the court examining the appeal on points of law can allow the appeal on points of law and re-examine the case. | 0 |
test | 001-153760 | ENG | ITA | CHAMBER | 2,015 | CASE OF CHINNICI v. ITALY (No. 2) | 3 | Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä | 4. The applicant was born in 1945 and lives in L’Aquila. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicant was the owner of a plot of land designated as industrial land in L’Aquila. The land in issue – of a surface area of 10,059 square metres – was recorded in the land register as Folio no. 4, Parcel no. 222. 7. In 1989, the regional administrative authorities granted the Consortium for the industrial development of L’Aquila (“Consorzio per il nucleo di sviluppo industriale di L’Aquila”, hereinafter “the Consortium”) permission to occupy a portion of the applicant’s land in order to begin the construction of an industrial compound. 8. On an unspecified date, the applicant brought an action for damages in the L’Aquila District Court against the regional administrative authorities seeking compensation for the remaining portion of land which had become unusable following the occupation. 9. On 9 April 1991 the regional administrative authorities issued an expropriation order in respect of the land. 10. Pursuant to the order, the consortium offered the applicant a global sum of 106.400.000 Italian lire (ITL) (equivalent to EUR 55,000) as compensation for the expropriation and compensation for the period during which the land had been occupied before the expropriation order had been issued. 11. The offer was refused by the applicant on the ground that he considered it inadequate. 12. On 9 May 1991, contesting the amount that he had been awarded, the applicant brought proceedings against the Consortium in the L’Aquila Court of Appeal. He argued that the amount determined by the regional authorities was extremely low in relation to the market value of the land. 13. On 14 August 1992 Law no. 359 of 8 August 1992 came into force (“Urgent measures aimed at stabilising public finances”). Article 5 bis of the Law laid down new criteria for calculating compensation for the expropriation of building land. The Law was expressly applicable to pending proceedings. 14. On 3 November 1993, the applicant accepted the consortium’s offer and requested the termination of the proceedings (“cessazione della materia del contendere”). 15. By a provisional judgment delivered on 22 November 1994, the Court of Appeal acknowledged the entry into force of Law no. 359 of 8 August 1992 and held that the amount of the compensation for the expropriation had to be in accordance with the new criteria laid down in the legislation’s Article 5bis. The court therefore rejected the applicant’s request to terminate the proceedings, appointed an expert and instructed him to assess the compensation for the expropriation according to the new criteria. 16. On an unspecified date, the expert submitted his report. 17. By a judgment delivered on 23 July 2002 and filed with the court registry on 1 August 2002, the Court of Appeal held that the applicant was entitled to compensation in the sum of EUR 77,556.40, as calculated according to the criteria laid down in Law no. 359 of 1992. Moreover, the Court of Appeal held that the applicant was entitled to compensation for the period during which the land had been occupied before the expropriation order had been issued, in the sum of EUR 12 778,37. The amounts were subject to tax, deducted at the source at a rate of 20%. 18. On an unspecified date the consortium appealed on points of law. 19. By a judgment delivered on 21 November 2006 and filed with the court registry on 8 January 2007, the Court of Cassation remitted the case to the L’Aquila Court of Appeal. 20. By a judgment delivered on 24 January 2013, filed with the court registry on 12 March 2013, the L’Aquila Court of Appeal acknowledged the Constitutional Court’s judgment no. 348 of 24 October 2007, whereby Article 5 bis of Law no. 359 of 8 August 1992 had been declared unconstitutional, and held that the applicant was entitled to compensation corresponding to the full market value of the property. 21. Therefore, drawing on the court-ordered expert report submitted during the first set of proceedings, the Court of Appeal concluded that the applicant was entitled to compensation in the sum of EUR 108,578.96 (equivalent to ITL 210,236,000), which reflected the market value of the land at the time of the expropriation (1991), plus statutory interest. It did not, however, adjust the amount for inflation. | 1 |
test | 001-158160 | ENG | GBR | CHAMBER | 2,015 | CASE OF N.J.D.B. v. THE UNITED KINGDOM | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev | 5. The applicant was born in 1954 and lives in Hertfordshire. 6. The applicant has a son, S., who was born in April 2000. The applicant was not married to the child’s mother, G., and the relationship ended a few months after S.’s birth. After the separation, S. continued to live with G. and the applicant maintained contact with him. On 17 August 2003 G. stopped the applicant’s contact with S. 7. In October 2003 the applicant instituted proceedings before Alloa Sheriff Court seeking parental rights and responsibilities and residence or, alternatively, residential contact. 8. In early July 2004 the applicant and G. agreed that the S. should reside with G. and that the applicant should have contact. The agreement was set out in a joint minute of agreement, on the basis of which the Sheriff Court, in an interlocutor dated 7 July 2004, granted the applicant parental rights and responsibilities in respect of S.; found that the applicant was entitled to residential and non-residential contact with S. on a basis and on dates specified in the interlocutor; and held that G. was to consult with the applicant when making decisions of importance with respect to the health, welfare, education and upbringing of S. The interlocutor did not provide for the dates upon which the regular contact was to begin or when during each four-week period it was to occur. It also failed to take into account pre-arranged holidays. 9. Because of the ambiguity in the interlocutor, the relationship between the applicant and G. quickly deteriorated. On 17 December 2004 the applicant lodged two minutes at the Sheriff Court: one to vary the July 2004 interlocutor by seeking a residence order in respect of S.; the other seeking a finding that G. was in contempt of court for breaching the July 2004 interlocutor. A curator ad litem was appointed by the Sheriff to represent S.’s interests. 10. The applicant was granted legal aid and was represented before the Sheriff Court by Mr Halley (counsel). The instructing solicitors were Jardine Donaldson. 11. Following a number of procedural hearings, a substantive hearing began on 9 September 2008 and concluded on 2 November 2009, after fifty-two non-consecutive court days. 12. The Sheriff’s decision on the application to vary the July 2004 interlocutor was issued on 22 January 2010. He considered that having regard to S.’s age, the history of the case and the influences at work on S., he would derive no benefit from contact in such circumstances. The Sheriff therefore concluded that there had been a material change in circumstances since the interlocutor of 7 July 2004; that it was in S.’s best interests that he did not have contact with his father; and that the interlocutor of 7 July 2004 required to be recalled. 13. The applicant appealed to the Inner House of the Court of Session. He contested the Sheriff’s decision and complained, inter alia, that the action had not been concluded within a reasonable time. 14. The applicant was granted legal aid to pursue his appeal. He was represented before the Inner House by Mr Andrew Smith QC and Mr Halley (counsel). The instructing solicitors were Drummond Miller LLP, for Jardine Donaldson. 15. The Inner House delivered its judgment on 22 October 2010. It did not uphold the applicant’s appeal. However, it varied the January 2010 interlocutor to make it clear that it in turn only varied the July 2004 interlocutor in respect of contact but did not make any change to the finding that the applicant enjoyed parental rights and that he had to be consulted on matters concerning S.’s health, welfare, education and upbringing. 16. In November 2010 a note was prepared by counsel supporting an application for legal aid to pursue an appeal to the Supreme Court. On 2 December 2010 a full application for legal aid was submitted to the Scottish Legal Aid Board, with counsel’s note in support. Shortly afterwards an appeal to the Supreme Court was lodged and the appeal process was suspended pending the determination of the legal aid application. 17. The curator ad litem objected to legal aid being granted to the applicant. The applicant responded to the observations of the curator ad litem. 18. By January 2011 the legal aid application had not yet been determined. The applicant expressed concern about the delay and the impact it would have on his chances of contact being re-established with S. He was told that there would be no meeting of the committee charged with making the legal aid decision until 7 March 2011. 19. On 5 April 2011 the Scottish Legal Aid Board intimated its refusal of legal aid to the applicant. On 6 April 2011 the applicant lodged an application for internal review. 20. On 5 July 2011, after reconsideration, the Board again refused legal aid. It found that there was no substantive issue of law arising to merit an appeal and that no practical benefit to the applicant could ensue. 21. On 22 July 2011 the applicant’s counsel and solicitors considered commencing judicial review proceedings in respect of the refusal to grant legal aid. It was decided on the applicant’s behalf that, as the delay involved in judicial review was likely to be extensive and given that legal aid for judicial review proceedings would almost certainly not be granted, no judicial review proceedings would be commenced. Counsel and the solicitors were not prepared to act pro bono in judicial review proceedings since the prospects of success would be low. However, they agreed to act pro bono in pursuing the appeal before the Supreme Court without legal aid. The Supreme Court waived its fees in respect of the appeal. 22. The applicant was represented before the Supreme Court by Mr Andrew Smith QC and Mr Halley. The instructing solicitors were Jardine Donaldson. 23. On 23 May 2012 the court handed down its judgment. It refused to uphold the applicant’s appeal. | 0 |
test | 001-160212 | ENG | LTU | CHAMBER | 2,016 | CASE OF G.B. v. LITHUANIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1975. When introducing her application to the Court, she lived in Meckenheim, Germany, where the applicant continues to reside to this day. 6. In 2001, in Germany, the applicant married E.B., a German citizen. Their marriage was registered in Lithuania in 2008. They have two daughters, who were born in 2002 and 2003. They all lived in Lithuania. 7. In January 2010 the Lithuanian authorities granted the applicant legal aid in connection with her intent to start divorce and custody proceedings. The following month the applicant applied to the Marijampolė District Court to have her marriage dissolved. She also asked for permission for both daughters to reside with her permanently, and for child maintenance from E.B. 8. In March 2010 Marijampolė Municipal Children’s Rights Protection Service (Vaiko teisių apsaugos tarnyba – hereinafter “the Marijampolė service”) informed the court in writing that the girls’ answers regarding who they would like to live with were unclear. They wished to live with both parents. Given the girls’ young age, and in the absence of information that the applicant was not performing her maternal duties properly, the service stated that residing with the applicant would not be against the children’s interests. 9. The applicant’s husband E.B. then lodged a counterclaim, asking the court to make a residence order in his favour. 10. The applicant then asked the court to grant a temporary protective measure – for the girls to temporarily reside with her until the case was decided on the merits. She submitted that the girls had no citizenship. Given the level of conflict between her and E.B., she feared that he might take the girls to Germany with him and she would then face obstacles in securing their return. 11. On 12 April 2010 the Marijampolė District Court allowed the applicant’s request for a temporary protective measure. The girls were thus to stay with the applicant until the end of the custody proceedings. The ruling was upheld on 31 May 2010 by the Kaunas Regional Court. The latter court ruling, however, specified that the applicant’s husband retained the right to have contact with his daughters at their place of residence or educational institutions. 12. On 19 April 2010 the Marijampolė service provided the court with conclusions indicating that the girls would not clearly state who they would like to live with. The father had suitable accommodation in which to raise them. The service concluded that the interests of the girls, “as future women (kaip būsimoms moterims)” would be better met if they lived together with the mother. Information obtained from doctors and educational institutions confirmed that the applicant took care of her daughters, who had (earlier) attended kindergarten and school in Marijampolė. The Marijampolė service nevertheless noted that its conclusions in the case could be revised if new circumstances emerged. On 9 April 2010 the applicant also wrote to the Kaunas Municipal Children’s Rights Protection Service (hereinafter “the Kaunas service”) stating that on 6 April he tried to call his daughters on the telephone, but no one answered. The applicant, with whom the daughters had to be, did not answer her telephone either. The applicant noted that the older daughter attended school in Marijampolė, but she had not been seen at school as of 6 April. He went to the apartment which the applicant had been renting in Marijampolė, but found the doors locked. E.B. considered that the applicant abused her parental rights, obstructed him to communicate with his daughters even by telephone, and did not guarantee the girl’s right to attend school. E.B. suspected that the applicant could have taken their daughters to Kaunas. He asked the Kaunas service to investigate the situation and promised his full cooperation. In reply, on 27 April 2010 the Kaunas service noted that since March 2010 the applicant had been living with her daughters in Kaunas. Between April and June 2010 one of the girls attended kindergarten, and the other attended school. Conditions at the flat where the applicant lived in Kaunas were appropriate for the girls. 13. It transpires from a police report that on 4 June 2010 the applicant contacted Kaunas police to report that she had allowed E.B. to see their daughters in Kaunas that day but he had not returned them to her. The police established that the girls were with their father in Marijampolė. On 10 June 2010 a police officer visited E.B. and the girls in Marijampolė and found them to be safe. The officer telephoned the applicant and asked her to come and take the girls. She replied that she had already contacted a bailiff and would not be going to pick them up herself. 14. On 8 June 2010 the applicant made a further application for protective measures, asking the Marijampolė District Court to restrict her husband’s right to see his daughters. 15. The Marijampolė District Court then deemed it necessary to ask both the Kaunas and Marijampolė services to provide information, and decided to hold an oral hearing to better establish whether any circumstances had evolved. The Kaunas service provided conclusions on 22 June 2010, stating that by agreement of the parents the girls had met their father on 4 June, but he had not yet returned them. Their colleagues, child care specialists from the Marijampolė service, had visited the girls at their father’s home. The girls explained that they liked and wished to be there; their interests or rights had not been compromised. The Kaunas service also noted that, in accordance with Article 3.164 of the Civil Code, a child who could express his or her views had to be heard and have his or her wishes taken into account, unless they were against his or her interests. For the Kaunas child care specialists, it was desirable to have an order in place setting out how the girls could have contact with their father pending the proceedings. On 23 June 2010 the Marijampolė service informed the court in writing that earlier that month they had visited E.B.’s apartment twice, without prior notification, on 11 and 21 June. The girls had communicated with their father naturally and without tension. There was no reason to believe that they were physically or emotionally unsafe at their father’s home. E.B. explained that on 4 June 2010 he took the girls on common agreement with the applicant. A couple of hours later, when he wished to return their daughters, the applicant could not be reached on her telephone. The applicant therefore took the girls to Marijampolė. The service considered that the applicant’s suggestions that E.B. could kidnap the girls and take them to Germany were unfounded. The service also noted that it was unclear why the applicant would not call her daughters by telephone or come to Marijampolė and contact the service so that they could go and visit the girls together (a point remade in its separate letter to the applicant of the same date). The service also stressed that the manner in which both E.B. and the applicant chose to resolve their conflict – which, due to their complaints, required the girls to communicate with child care specialists and police officers – negatively affected the children. 16. On 28 June 2010 the applicant declared her place of residence as Kaunas. The same month the Kaunas and Marijampolė services exchanged a number of letters with the applicant, replying to various requests for information and assistance. It was noted, inter alia, that she had been asked to visit the Marijampolė service to resolve the matter of the girls’ return and to go to E.B.’s home with police officers to take the girls, but she had declined to do so. The child care specialists also noted having visited E.B.’s home, where the girls had been found. E.B. had explained to the child care specialists that his daughters did not wish to go to their mother’s and that he did not want to take them there by force. The Marijampolė service enquired with the applicant why she herself had not been calling her daughters and had not applied to the service for assistance in meeting them. For the child care specialists, the manner in which the applicant chose to solve her dispute with E.B. negatively affected the girls’ psychological well-being, because they had to communicate with various authorities often. The applicant was also informed that it was the bailiff who was competent to enforce court decisions. 17. On 9 July 2010 the Marijampolė District Court decided the temporary protective measures application in the presence of the applicant, E.B., their lawyers and a child care specialist. Upon the recommendation of the latter, and given that the court hearing on the merits of the action was scheduled for 19 July, when deciding on the temporary protective measure the court also deemed it appropriate not to hear the children, to avoid causing them even more stress. The court acknowledged that when the applicant had allowed her husband to see their daughters for three hours on 4 June 2010, he had not returned them to her home. It urged the parents to arrange the return of the girls to their mother and to reach an agreement on how E.B. would contact them until the final court decision in the divorce and custody proceedings. However, each parent had their own conflicting opinions, which only served to worsen the strained relations between them. The court noted that both parents had the right to raise their children and have contact with them, and there was no information to suggest that E.B.’s communication with his daughters would cause them harm. Nor was there any information that the applicant was failing in her duties as a mother. Accordingly, pursuant to Article 376 §§ 2 and 3 of the Code of Civil Procedure, which required the courts to aim to protect the interests and rights of minors (see paragraph 61 below), and taking into account the earlier court rulings that the girls should temporarily reside with the applicant (see paragraph 11 above), the court ordered E.B. to return his daughters to their mother. Should he fail to do so, the applicant could contact a bailiff, who would then take the girls and their documents and hand them over to the applicant. Until the end of the divorce and custody proceedings, the applicant’s husband was granted contact with his daughters every other weekend from Saturday morning until Sunday evening, when he could collect them from the applicant’s place of residence and spend time with them. He was forbidden only from travelling outside Lithuania with them. On the same day, that is on 9 July 2010 the applicant was explained by the Marijampolė service that execution of court rulings belonged to the exclusive competence of a bailiff. Seven days later the court ruling became final and thus enforceable. Pursuant to the applicant’s request of 19 July 2010, the following day the Marijampolė District Court issued her a writ of execution, which the applicant then transmitted to the bailiff on 26 August 2010 (also see paragraph 46 below). 18. Between July and September 2010 the applicant asked that E.B. be fined for non-compliance with a court order requiring him to hand the children over. She also asked the court to prohibit him from seeing his daughters. In turn, E.B. asked that they remain with him, arguing that they refused to live with their mother. The Marijampolė service informed the court that from 1 September 2010 the girls started attending school in Marijampolė, and that situation had been caused by E.B.’s refusal to hand them over to the applicant. In September 2010, on the recommendation of the Marijampolė service, one of its psychologists saw the girls twice. She observed that they were attached to their father and had a good emotional connection with him. They also stated that they wished to stay with their father. The psychologist could not assess the emotional connection they had with their mother, because she could not be contacted. On 13 September 2010 the Kaunas service informed the court in writing that because the girls did not live in Kaunas, it there were grounds for limiting E.B.’s paternal rights, in accordance with Article 3.180 of the Civil Code. 19. According to the Government, following complaints by the applicant alleging inactivity on the part of both the Kaunas and Marijampolė services, on 5 August 2010 the Ombudsperson for the Protection of Children’s Rights (Vaiko teisių apsaugos kontrolierius – hereinafter “the Ombudsperson”) issued a report. It noted that the relationship between the parents had broken down and that the applicant herself had been hostile. The report established that she instigated conflict, involved different State and municipal institutions in solving her relationship problems with her husband and gave little importance to her own personal responsibility, efforts and benevolence in looking for solutions in the best interests of her daughters. The report also indicated that she had applied to child care services and the police, submitted requests for assistance in taking the children, but as soon as they had provided her with opportunities she had refused them. It was recommended that she solve the questions of the girls’ place of residence and contact by mutual agreement with the father, and in the children’s best interests. 20. On 20 September 2010 the Marijampolė District Court held an oral hearing with the applicant, E.B., their lawyers and representatives of the Marijampolė and Kaunas services. Over the days that followed two more hearings were held and the girls were questioned by the judge in the absence of their parents and their lawyers. One of the girls testified that she wished to live with her father. The other testified that she missed her mother and wished that both parents lived together. She also stated that she otherwise preferred living with her father. 21. On 28 September 2010 the Marijampolė District Court dismissed E.B.’s request that the girls reside with him, and the applicant’s request to forbid him from seeing them. The decision was upheld by the Kaunas Regional Court on 22 November 2010. The courts acknowledged that E.B. had not avoided his duties as a father, but it had not been established that he could provide better living conditions for the girls or raise them better. Moreover, the girls’ place of residence had already been decided by an earlier court ruling and it was not in their best interests to change that place every couple of months. The girls were not yet mature enough for their wishes alone to suffice to change their place of temporary residence. 22. On 23 of September 2010 the principal of the school the girls had been attending in Marijampolė since the beginning of that month informed the child care authorities that the applicant had been visiting the girls at school and communicating with them, their teachers, the school administration and social workers on a regular basis. On one occasion a social worker observed one of the applicant’s meetings with the girls. They had talked to their mother warmly and sincerely, and had stated that they wished to live with both parents. The principal noted having been asked by E.B. to restrict the girls’ contact with the applicant, but he had not acceded to that request because he considered that the girls should see and communicate with both parents. On 3 February 2011, in reply to letters from the applicant asking for information about her daughters’ achievements at school and requesting that it arrange a meeting with her daughters on school premises, the principal informed the applicant that the school had always been open for parents. He noted having urged the applicant since autumn 2010 to come to school as often as possible, and to communicate with her daughters and their teachers. However, ‘the applicant had not heard that message (deja, Jūs šito raginimo neišgirdote)’. The principal stressed that the school was ready to help the applicant in every possible way if she showed initiative to see her daughters; no prior notification for her coming to school was necessary. For the school principal, the applicant’s pleas were particularly odd, because it was only because of her that the girls were not fully fledged members of the school as they were not on the list of pupils. The applicant was well aware of that but had not made any effort to settle the matter. The principal concluded that if the applicant was serious about her daughters’ future, he wanted her to think seriously and solve the problems which depended solely upon her. 23. Between October 2010 and April 2011 the Marijampolė District Court held at least five oral hearings, in which the applicant, E.B., their lawyers and representatives of child care services participated. The court granted a request by the applicant for a psychological assessment of the girls (see paragraph 25 below), had regard to letters from the institutions where the girls attended after-school activities, and questioned the principal and psychologist of the school. 24. At a court hearing on 29 April 2011 the principal testified to having admitted the girls to the school at E.B.’s request and in the girls’ best interests, and that they came to school ready for lessons and well-presented. They were well taken care of, felt well at school and wished to study there. The principal also stated that the applicant could have come to school and taken the girls with her at any time. However, the applicant came to school very seldom; the last time he had seen her there was in January 2011. The school psychologist testified that she had told both parents that they could ask her for psychological assistance, but neither parent had followed up with such a request. Without parental agreement or a referral by child care specialists, no psychological assistance could be provided. The psychologist also testified that the girls’ teachers had not contacted her with any particular concerns about the girls’ well-being. 25. In August 2011 experts from the Vilnius City Child and Adolescent Forensic Psychiatry Department (Vaikų ir paauglių teismo psichiatrijos skyrius) examined the girls. The experts found in respect of both girls that it was not possible to establish which parent’s place of residence would best meet the girls’ interests, because equal communication with both parents, who were important to the girls, was important to them both. When observed with their father, the girls were positive, active and laughed a lot. Both girls’ connection with their father was “positive, warm and strong”. Their relationship with the mother was ambivalent and their feelings were torn (dominuoja prieštaringi (ir teigiami, ir neigiami) jausmai). Even so, there was no doubt that the mother was an important person for the girls. Having regard to the girls’ age, maturity and psychological particularities, they were not yet able to formulate and express their own opinions and views as regards which parent they should live with. The girls’ wish to live with their father was determined by objective factors, namely them living with him for more than a year and communication with their mother being insufficient. Unnatural hostility towards the mother had only traumatised them and parental alienation syndrome, enhanced by their father’s influence, could be seen in their behaviour. Lastly, both girls were attached to each other, and separating them would be traumatic. 26. In August 2011 the applicant declared her place of residence as Meckenheim, Germany. 27. On 4 October 2011 the applicant asked the Marijampolė District Court to hear the case in her absence. She maintained all her civil claims. Moreover, in the applicant’s words, “the forensic expertise having been performed, [paragraph 25 above] I consider that all the evidence in the case has been collected and examined, and that the case should be terminated immediately, and I therefore ask for it to be terminated in my absence because I am ill.” The applicant agreed to her lawyer representing her interests from that point forward. 28. On 5 October 2011 the Marijampolė District Court held an oral hearing with the applicant’s lawyer, E.B., his lawyer, and the child care authorities. During the hearing it came to light that the applicant had declared her place of residence as Germany, where she was expecting a child with another man. According to E.B.’s lawyer, those circumstances were relevant when deciding the girls’ place of residence, especially given the applicant’s initial accusation of the girls being taken to Germany by their father (see paragraph 10 above). The court deemed it appropriate to postpone the hearing, so that the applicant could be questioned. 29. Later that month the applicant’s lawyer provided the court with a medicate certificate issued in Meckenheim, about her client being at risk of premature birth if she experienced physical or psychological stress. The lawyer asked the court to hear the case without her client present, or to suspend the proceedings, until after the applicant had given birth. 30. On 24 October 2011 the court held an oral hearing without the applicant, but in the presence of her lawyer. She confirmed that her client had declared her place of residence as Germany, the father of her future child being a German national, but that she intended to return to Lithuania to live in Kaunas immediately after giving birth in Germany. The lawyer also confirmed that the applicant had not communicated with the girls during that school year. E.B.’s lawyer regretted that the applicant could not be questioned at the hearing. Relying on the forensic experts’ conclusions about parental alienation syndrome, heightened by E.B.’s attitude towards the applicant, the Kaunas service noted that it would be more in the girls’ interests to reside with their mother. It did not see the applicant’s pregnancy as a factor to be taken into account when deciding the girls’ place of residence. The service confirmed that the future child’s father was a German citizen, which suggested that the applicant would live in Germany. Even so, E.B. was a German citizen but lived in Lithuania. The Kaunas service also noted that the applicant had approached them for a referral to psychologists so that she could find contact with her daughters easier. A referral was given to her and, as far as the Kaunas service was aware, the applicant had visited the psychologists for assistance. The service was of the view that the applicant had tried to establish contact with her daughters, but had been unsuccessful. She had probably not visited them at school for a while to avoid traumatising them. 31. At the same hearing the Marijampolė service representative noted that it had known the girls and their family history since 2008, when disagreements between the applicant and E.B. had started. The girls really thought clearly and their minds had developed in accordance with their ages. The representative thought that the girls’ behaviour had been conditioned by their mother’s actions as she did not visit them often at school or show interest in their lives, and therefore no emotional connection between them had been formed. The girls had been heard by the court about a year ago, where they had expressed their wishes (see paragraph 20 above) – the court had to remember that moment and have regard to the girls’ opinion. Indeed, in 2006 the United Nations Children Rights’ Committee had reproached Lithuania for not always hearing and paying attention to the child’s opinion (see paragraph 65 below). The representative noted that no one could ignore the fact that it was not known where the applicant, who was currently in Germany, was about to live. It was submitted that the psychologists’ conclusions were contradictory (yra prieštaringos). The conclusions noted that E.B. was important to the girls; they had a warm, positive and stable relationship with him. When communicating with their father, the girls felt safe and were actively involved in shared activities. They could easily approach their father, hug him and tell him about their achievements at school, where they took prized places in mathematics competitions. The child care specialist emphasised that a child who was psychologically distressed could not have such achievements at school. The Marijampolė service underlined that the circumstances had changed and thus it would always inform the court that it would provide the last conclusion during the last court hearing. Having communicated with the school, the school administration and the teachers, the Marijampolė service was finally persuaded that it was better for the girls to stay in that environment, to attend school and have friends; at home they were also receiving all that was necessary. The applicant, however, did not approach the girls after certain court decisions but first ran to the institutions or called the police, thus traumatising the girls a lot. In the words of the child care specialist, the applicant had not attempted to first meet with the girls or establish contact with them, and had not put in any effort herself. It was odd that a mother would go without seeing her daughters for a couple of months and not ask if they were prepared for school. The Marijampolė service thus submitted that, in the light of the above considerations, E.B. could take care of the girls the best and provide them what they needed. To pull the girls out of the environment they were familiar with and where they had spent most of their time would cause them significant psychological harm. The girls could always choose to tell to their father later that they wish to live with their mother. At the end the Marijampolė service representative noted that, in her view, the child care specialists from Marijampolė had observed the girls more than the representatives from the Kaunas service. 32. On 8 November 2011 the Marijampolė District Court took a decision on the merits of the divorce and custody case. It observed that there was no information in the file to suggest that either parent was failing in their duties to raise their daughters or that their behaviour was immoral. Even so, they had not always acted with the children’s best interests in mind, because during the court proceedings neither parent had attempted to find a compromise as regards their daughters’ place of residence or their contact with them. The court emphasised that the children had to grow up in a safe environment they were used to. However, even though by a court order of 9 May 2010 the girls were to reside with their mother, the actual situation was that since 5 June 2010 they had been residing with their father. The girls themselves had expressed the wish to stay with him. The first-instance court thus held that although the father could have had some influence over the girls’ choice as to who they preferred to live with, it was not decisive. The girls had thus already stated on 11 June 2010 that they preferred living with their father (see paragraph 15 above). It was the court’s view that such a short time (seven days) between those two dates was not sufficient for the girls’ father to influence his daughters. It was thus clear that there was already then tension between the girls and their mother. 33. Lastly, the Marijampolė District Court noted that even though the applicant had declared her place of residence as Kaunas, since August 2011 she was also registered as living in Germany. For the court, the question where the father or mother would live with the children was irrelevant in any event because the girls spoke German; they had previously lived in Germany and thus could adjust to living there easily. What was essential when deciding the question of the girls’ residence was to ascertain who the children were more attached to, and which parent devoted more attention to their interests. The children’s wishes as to where to live could be disregarded only if they were against their interests. Given that there was nothing to suggest that either parent was neglecting their parental duties, the Marijampolė District Court deemed it most suitable to take into account the girls’ wish to live with their father. 34. The first-instance court also ordered the applicant to pay the girls’ father maintenance (60 euros (EUR) for each daughter per month) and set in place a contact order for the applicant to see her daughters. Even though both parents asked to see the children only two weekends per month and during the month of July, in accordance with Article 376 § 3 of the Code of Civil Procedure the court considered ex officio that such a time-frame would be too restrictive for the applicant to be able to build up contact with her daughters. A wider contact order, allowing the applicant contact not only during weekends but also State holidays and certain days during all school holidays was set in place. The court stressed to both parents their obligation to take care of the children and above all be an example to them. The court also divorced the applicant and her husband. 35. On 7 December 2011 the applicant appealed against the first-instance court’s decision. She contested the decision about the girls’ place of residence. Without explicitly asking that a hearing be held, she asked for a re-examination of the evidence and witnesses to be called and questioned. 36. By a letter of 5 March 2012, the applicant also asked the Kaunas Regional Court to admit in evidence letters postmarked between November 2010 and January 2011 she had sent to her daughters in Lithuania from Germany, which had been returned to her in the post. The applicant claimed that E.B. had thus interfered with her right to be in contact with her children. She relied on Article 314 of the Code of Civil Procedure (see paragraph 59 below). 37. By a ruling of 22 March 2012 made in written proceedings, the Kaunas Regional Court left the lower court’s decision unchanged. The court noted at the outset that pursuant to Articles 321 and 322 of the Code of Civil Procedure, appeals had to be heard in written proceedings unless the court deemed an oral hearing indispensable. As regards the applicant’s request to have witnesses questioned, the court established that the applicant had not specified in her appeal what new circumstances essential for the case the requested witnesses could confirm, some of them having already been questioned at first instance. Nor had she explained why she had not submitted the request to the first-instance court. The court concluded that an oral hearing was not necessary, because the applicant had had the opportunity to point out all the circumstances necessary for an examination of the case to the first-instance court and also in her appeal. The appellate court also refused to admit documents related to the applicant’s correspondence with her daughters. According to it, those pieces of evidence had not been analysed in the first-instance court, which was a general requirement for evidence to be admitted in an appeal, or lodged with it. 38. As to the girls’ place of residence, the Kaunas Regional Court dismissed as unfounded the applicant’s plea that the first-instance court did not properly examine the evidence, which included the explanations by the child care authorities, psychologists’ reports, witness testimony and the Ombudsperson’s conclusions. On this last point the court observed the Ombudsperson’s conclusion of 5 August 2010 stating that the applicant was conflictive and involved various authorities in her and E.B.’s conflict, without giving importance to her own responsibility and good-will in finding the best solutions for the children. It also observed that the first-instance court had examined the forensic expert reports about the girls’ psychological state, where it was noted that they both wished to stay with their father. In addition, psychologists from the girls’ school and the school principal were questioned. The applicant’s lawyer herself admitted agreeing with the forensic expert reports, and did not ask for another expert examination to be conducted. 39. The Kaunas Regional Court also found that it was in the best interests of the children to stay with their father, who they had lived with since 5 June 2010. On that point it was also paramount that during the first-instance court hearing the girls had confirmed their wish to live with him. A fact on which the applicant had relied, that E.B. had prior convictions in Germany for sexual and drug-related offences committed in 1996 and 1998 did not have much significance for the case, because the convictions had expired in 2003. The applicant, for her part, had a criminal conviction in Lithuania for forgery of document and a criminal investigation against her for fraud had been terminated. What mattered was that she had left Lithuania for Germany; she had three addresses – in Kaunas, Marijampolė and in Germany, which she had indicated as places where she lived, which suggested that she in fact had no habitual place of residence. Moreover, the applicant’s contact with the girls was merely episodic, whereas the girls’ father took proper care of them and actively participated in raising them. The girls lived with their father, attended school and had suitable living conditions. The evidence as a whole allowed for the conclusion that there was a close connection between the girls and their father. There was no evidence in the case file to the effect that E.B. abused his parental rights, and it was for the applicant to prove the opposite, which she had not done. Moreover, under Article 9 of the United Nations Convention on the Rights of the Child, a child had the right to be heard in all matters affecting him, which had been done in the present case. The appellate court also observed that in accordance with Article 2 of the aforementioned Convention and Article 3.156 of the Civil Code, both parents had equal rights and obligations towards their children. Accordingly, and contrary to the applicant’s suggestion that she was closer to the girls because of their gender, the gender of a parent could not be a factor which determined who a child should reside with. 40. As to temporary protective measures, the Kaunas Regional Court observed that, as a rule, they were aimed at guaranteeing compliance with a future court decision. Accordingly, the first-instance court, when adopting a decision after examining merits of the case, was not bound by earlier decisions on temporary protective measures. 41. Following a complaint by the applicant, on 1 June 2012 the Ombudsperson issued a report dismissing allegations by the applicant about the partiality of the Marijampolė service because of its failure to provide her with information and consultations. The Ombudsperson relied on the Court’s judgment in Mihailova v. Bulgaria (no. 35978/02, § 97, 12 January 2006), where it did not find a violation of Article 8, having found that irrespective of obstructions by the applicant’s former husband, the applicant’s own lack of understanding of the need for careful preparation as a precondition to effective enforcement of her custody rights played a significant role in the events. In the instant case, attempts had been made more than once to hand the children over to the applicant and meetings had been organised with psychologists, child care specialists and representatives of educational institutions as to enforcement of the court decisions to transfer the children. Moreover, the Ombudsperson had already examined the Marijampolė service’s work in February 2010, and did not find that it did not take action to help the applicant to have contact with her children. The service also correctly placed the responsibility for the well-being of the children on both parents. 42. On 5 September 2012 the principal of the girls’ school in Marijampolė issued a note stating that during the school year 2011/2012 the applicant had not visited the school. She did not come to school on 1 September 2012 either. 43. On 18 October 2012 the Ombudsperson dismissed the applicant’s repeated complaint accusing the Marijampolė service of failing in its duties to provide assistance and organise contact with the children. The Ombudsperson established that even though the contact order between the mother and the girls had been set in place as early as 8 November 2011 by the Marijampolė District Court, she had not yet tried to make use of it. Furthermore, the Marijampolė service had asked the applicant’s lawyers to meet at its premises, offered to inform E.B. of that meeting and asked the applicant’s lawyers for that purpose to choose a suitable date, but the applicant had not responded. For its part, the Kaunas service had also invited the applicant for a conversation so that she could express her wishes and preferences as to her contact with the girls, and so that the service could assist her. It was only when the applicant had not shown up that the Kaunas child care specialists had suggested to her lawyers that she communicate with the girls by letters via the Marijampolė child care specialists. It had also been indicated to the applicant that she had the opportunity to directly communicate with her daughters in the presence of a psychologist, and that could be discussed with the Marijampolė service. The girls’ school in Marijampolė had also informed the Ombudsperson that the applicant had started communicating with the girls by letters since December 2011; between December 2011 and April 2012 three letters from her had been received, though the girls had refused to accept the last one. The school had thus suggested that the applicant choose another means of communicating with her daughters and asked the child care specialists to provide facilities for that purpose. Given the child care authorities and the school’s suggestions for the applicant to communicate with her daughters directly (tiesiogiai), which the applicant had disregarded, it was not clear to the Ombudsperson why the applicant preferred to communicate with her daughters by letters. On this point the Ombudsperson pointed out that under Article 3.170 of the Civil Code parents who lived separately had the right and an obligation to communicate with their children and be involved in their upbringing; children, for their part, had a right to regular and direct contact with both parents, irrespective of their place of residence. 44. On 15 June 2012 the applicant lodged an appeal on points of law. Without arguing that the appellate court’s decisions not to summon witnesses for examination and not to hold a hearing had affected the outcome of the litigation, she primarily challenged the lower courts’ assessment of the evidence, insisting that they had erred in concluding that living with their father was in the best interests of the children. She also asserted that E.B.’s previous convictions in Germany for crimes of sexual violence and drug-related offences were significantly weightier in terms of his moral values than her conviction in Lithuania for forgery of documents. The applicant was further dissatisfied with the appellate court’s refusal to admit in evidence documents related to her correspondence with her daughters, which she obtained after she had already lodged her appeal. In his written reply, E.B. argued that the lower courts had properly examined the entirety of the evidence. He submitted that the applicant had always known about his earlier convictions in Germany; however, they had expired a long time ago. It was unfair for her to bring up that issue now. E.B. also observed that the proceedings had been pending for more than two years. During that period the applicant had specified her claims and submitted requests to the court on more than one occasion. The Kaunas Regional Court’s acceptance to re-examine the evidence and question witnesses would have only delayed the proceedings. Given that the applicant had not asked for an oral hearing, the appellate court’s decision to pursue proceedings in writing had been reasonable. 45. In a final ruling of 14 December 2012, adopted in written proceedings, the Supreme Court observed that the child’s interests were the primary consideration when examining custody cases. The cassation court also relied on the Court’s judgment in Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, § 139, ECHR 2010), which said that an in-depth examination of the entire family situation was necessary to achieve the best result for the child. For the Supreme Court, such a result had been achieved in the present case. The lower courts had analysed the level of attachment to each parent and established that the girls, who lived with the father, were fond of him. Those courts had also noted psychologists’ reports that the girls could entirely independently form their own opinion about which parent to live with, and had held that the children’s opinion was one of the criteria when evaluating the entirety of evidence, and the girls had expressed such a wish during the court hearing. Even though the fact that the girls lived with their father could influence their formation of a negative opinion about their mother, it had not been established that the mother was barred from communicating with them; to be interested in their lives and visit them at school could thus form a positive opinion about her and make their emotional bond stronger. The first-instance court had also issued a contact order and thus the applicant’s contact rights with her daughters had not been restricted. Even though the applicant had stated that she lived in Lithuania, the evidence showed that she had declared place of residence as Germany, where she had taken part in court proceedings so that the name of her third child could be registered. As to E.B.’s convictions in Germany, those offences had been committed in 1996 and 1998 and his convictions had expired a long time ago. There was no proof that he could have a negative impact on the girls. On the contrary, the girls studied well at school and took part in extracurricular activities. It followed that the courts had been correct in not giving particular weight to those convictions. Overall, it was thus in the best interests of the girls to stay with their father. Lastly, whilst noting that when refusing to admit in evidence new documents submitted by the applicant the appellate court had not explained whether they were relevant to the merits of the case, the Supreme Court held that this did not affect the overall lawfulness of the appellate court’s ruling. 46. After the Marijampolė District Court’s decision of 9 July 2010 stating that the girls should reside with the applicant became final, and following the applicant’s request of 26 August 2010 transmitting her the writ of execution, the bailiff took measures to enforce it (also see paragraph 17 in fine). Meetings were organised with the child care specialists, representatives of the girls’ school and psychologists. Both parents were involved in that process. 47. The first attempt to hand the girls over at their school in November 2010 failed because on that day the girls fell ill and did not go to school. The court then established that their absence was proved by medical certificates, and the court order for transfer did not specify where it would take place. Accordingly, the father could not be blamed for an unsuccessful transfer. 48. The next attempt to transfer the girls was made in January 2011, when it was decided that the girls would be handed over at their home. This attempt did not produce results because on that date the applicant was arrested on charges of forgery of documents. 49. The third attempt to hand over the girls was at their father’s home in February 2011. It failed because, even though the bailiff, child care specialists, police and both parents were present, neither girl wished to leave with their mother. During the transfer the applicant asked to be left alone in the room with the girls, and her wish was granted. However, even after that the girls expressed a clear wish not to leave with her. In the report about that attempted transfer the bailiff underlined that the transfer of a child could not be equated to the transfer of an object. Taking into account the clearly expressed wishes of the children, and to avoid psychological trauma and to protect the children’s interests, physical force could not be used in that situation. The child care authorities supported this argument. The bailiff’s recommendation, based on Article 771 of the Code of Civil Procedure, was that the manner of enforcing the court order for transfer should be changed to preserve the children’s interests. The bailiff’s letter specified that her findings could be appealed against to the Marijampolė District Court. The bailiff then also asked the Marijampolė District Court to examine how the court order for the girls’ transfer should be enforced without compromising their interests. 50. Eventually, by a decision of 20 June 2012 the bailiff discontinued the enforcement proceedings, because it had been decided that the girls should reside with their father (see paragraphs 39 and 45 above). 51. By a decision of 17 March 2011 in separate criminal proceedings, a court found E.B. guilty of failing to comply with the court order of 9 July 2010. He was fined approximately EUR 750 (2,600 Lithuanian litai). The court however dismissed a civil claim by the applicant for non-pecuniary damage, noting that the girls themselves had refused to go and reside with their mother. The court also noted that no evidence had been provided to prove the applicant’s contention that the children’s refusal to be handed over to their mother had been a direct consequence of E.B.’s actions. 52. Alleging that the girls’ father had had a negative influence on their daughters, and relying on the psychologists’ reports about parental alienation syndrome (see paragraph 25 above), on 8 September 2011 the applicant asked the prosecutor to start criminal proceedings in respect of E.B. for abusing his rights and duties as a parent (Article 163 of the Criminal Code, see paragraph 63 below). 53. By a decision of 16 September 2011, the prosecutor refused to initiate a pre-trial investigation. He noted that earlier that month Marijampolė child care specialists had visited E.B.’s home and the girls had eagerly communicated with them, without their father present. The girls felt comfortable and at ease; they had no demands. They had also explained that the applicant did not visit them or call. The prosecutor established that E.B. had not committed any unlawful acts in respect of his daughters. By a decision of 4 October 2011, the District Court upheld the prosecutor’s decision. | 0 |
test | 001-181210 | ENG | UKR | CHAMBER | 2,018 | CASE OF SINKOVA v. UKRAINE | 3 | No 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 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani | 5. The applicant was born in 1991 and lives in Kyiv. 6. At the time of the events she belonged to an artistic group called the St Luke Brotherhood, which was known for its provocative public performances. 7. On 16 December 2010 the applicant, together with three other members of the above-mentioned union, made what she described as an “act of performance”, which, according to both parties’ accounts, consisted of the following. They went to the Eternal Glory Memorial to those who perished in the Second World War, which contained the tombs of thirty-two soldiers, including that of an Unknown Soldier. The applicant took a frying pan prepared in advance, broke some eggs into it and fried them over the Eternal Flame at the Tomb of the Unknown Soldier. Two of her friends joined her and fried sausages on skewers over the flame. Another member of the group filmed the event. Two police officers approached them and made a remark that their behaviour was inappropriate, without further interference. On the same day the applicant posted the video on the Internet on behalf of the St Luke Brotherhood. It was accompanied by the following statement: “Precious natural gas has been being burned, pointlessly, at the Glory Memorial in Kyiv for fifty-three years now. This pleasure costs taxpayers about 300,000 hryvnias [UAH] per month. And this is only one ‘eternal flame’ pagan temple, whereas there are hundreds or even thousands of them throughout Ukraine. On 16 December the St Luke Brotherhood reacted to this by an act of protest in the Glory Park in the capital. It showed that people should use the ‘eternal flame’. We suggest to the outraged representatives of the Communist Party of Ukraine to follow the example of ancient Roman vestal virgins and to carry out around-the-clock duty at the ‘eternal flames’, keeping the fire lit manually by wood. There is no doubt that communists will have no problems with fulfilling this task, because they already have experience of taking care of the Lenin monument in Kyiv and their financing is much better than that which the vestal virgins had.” 8. While the parties did not provide a copy of the video in question to the Court, it was possible to view it on several publicly available websites. In addition to the factual account from the parties summarised above, the Court notes that the soundtrack to the video was a famous 1974 Soviet song “The battle is going on again” (devoted to the victory of the 1917 revolution and optimism about the future of the communist regime). The video started with the following opening titles: “The St Luke Brotherhood presents”, “Recipe of the day”, “Eternal fried eggs on the eternal flame”. The participants in the performance did not make any public address and their conversation was not audible. They had no posters or other visual aids, apart from the food and cooking utensils. It could be seen on the video that once the applicant had broken the eggs in the frying pan and was about to approach the fire, while her friends held skewers with sausages, the two police officers appeared and the applicant explained something to them and they left. In order to reach the flame the applicant had to step over a sculpture of a wreath of oak leaves and step on the words “Glory to the Unknown Soldier”. 9. There were several complaints to the police that the action on the video had amounted to desecration of the Tomb of the Unknown Soldier and called for criminal prosecution. 10. On 21 December 2010 the police questioned D., one of the women who had participated in the performance. She submitted that she had not known the other members of the group and that she had met them by chance. As they had allegedly explained to her, they had been hungry and had intended to cook food in order to eat it. 11. On the same day criminal proceedings were instituted against D. and three unidentified persons on suspicion of hooliganism. 12. On 23 December 2010 D. wrote a confession that she had participated in a protest against inappropriate use of natural gas and that she regretted it. She knew only the first names of the other participants. 13. On 24 December 2010 another criminal case was opened against her and three unidentified persons in respect of the same event, this time on suspicion of desecration of a tomb. It was joined to that opened earlier. Subsequently the charge of hooliganism was dropped. 14. The police retrieved photos of several persons who might have been involved in the incident from the passport office’s database and showed them to D. She recognised the applicant. 15. On 5 February 2011 the investigator questioned the applicant’s grandmother and mother, who lived at the address of the applicant’s registered residence. They submitted that they knew nothing about her involvement in the event in question. They also stated that the applicant did not in fact live there and denied knowing her whereabouts or having her contact details. They only knew that she had left for western Ukraine, without further details. The grandmother stated that the applicant had visited her about two weeks earlier. The applicant’s mother had seen her about a week earlier and had received a telephone call from her two days earlier. 16. On 18 February 2011 the investigator severed the criminal case in respect of the applicant and two unidentified persons on suspicion of desecration of the Tomb of the Unknown Soldier by a group following a prior conspiracy. 17. On the same day the applicant was declared wanted by the police. 18. On 17 March 2011 the investigator applied to the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”) for the applicant’s detention as a preventive measure pending trial. His arguments were as follows: the offence of which the applicant was suspected was punishable by a prison term of more than three years; the applicant had absconded, as a result of which she had been declared wanted by the police; and she could reoffend or hinder the establishment of the truth if at liberty. 19. On 25 March 2011 a judge of the Pecherskyy Court allowed that application in part: he ordered the applicant’s arrest with a view to bringing her before the court for examination. 20. On 29 March 2011 at 9 p.m. the applicant was arrested at the flat of a certain Z. in Kyiv. As the latter subsequently stated during her questioning, the applicant had been living there from 25 March 2011 at the request of an acquaintance. 21. On 31 March 2011 the applicant was questioned as an accused in the presence of her lawyer. While insisting that her only intention had been to protest against the inappropriate use of natural gas, she confessed to the offence and expressed remorse. 22. On the same day the investigator once again applied to the Pecherskyy Court for the applicant’s detention as a preventive measure. His reasoning was the same as before. 23. On 31 March and 1 April 2011 two deputies of the Kyiv Regional Council applied to the Pecherskyy Court for the applicant’s release in exchange of their personal guarantee of her adequate procedural behaviour. 24. On 1 April 2011 the Pecherskyy Court remanded the applicant in custody as a preventive measure pending trial. It noted that she was accused of a serious offence punishable by imprisonment of from three to five years. Furthermore, the judge referred to the fact that the applicant had absconded and had therefore been put on the wanted list. It was also considered that she might hinder establishing the truth if at liberty. In so far as the applicant’s lawyer relied on her positive character references from various sources, the court noted that those could not guarantee her compliance with all the procedural requirements. While having noted that the applicant also relied on the letters of personal guarantee from the people’s deputies, the judge did not further comment on them. It was specified in the ruling that the term of the applicant’s detention was to be calculated from 29 March 2011. Under the applicable legislation, the duration of pre-trial detention was limited to two months, with the possibility of further extensions. 25. The applicant’s lawyer appealed. He submitted that his client was willing to cooperate with the investigation and that there were no reasons for her detention. It was further pointed out in the appeal that the applicant had been declared wanted by the police on the very same day the criminal case against her had been opened. The lawyer noted that there had not been a single summons sent by the investigation to the applicant’s address prior to her arrest. According to her, she had found out about the charge against her only on the day of her arrest on 29 March 2011. Lastly, the lawyer submitted that the first-instance court had not considered any less intrusive preventive measures as an alternative to detention and that it had left without consideration the people deputies’ letters of guarantee. 26. On 11 April 2011 the Kyiv City Court of Appeal rejected the above appeal. It noted that the Pecherskyy Court had already duly examined all the arguments raised in it. 27. On 25 May 2011 the applicant was indicted. On the same day the case was sent to the Pecherskyy Court for trial. 28. On 10 June 2011 the applicant applied to the court for release under an undertaking not to abscond. She submitted that she enjoyed positive character references, had no criminal record and had cooperated with the investigation. Furthermore, the applicant observed that by that time the investigation had already been completed and could not therefore be hampered. She emphasised that her actions had been nothing else than a protest driven by good motives. Several members of parliament and other prominent figures joined her in that application and expressed their wish to act as her personal guarantors. 29. On 17 June 2011 the Pecherskyy Court held a preparatory hearing, during which it rejected the applicant’s application for release with reference to the seriousness of the charge against her, “the nature and the circumstances of the offence of which she [was] accused”, as well as the fact that she had been declared wanted by the police. The judge also stated, in general terms, that there were no grounds for the applicant’s release under a personal guarantee. 30. On 30 June 2011 the applicant applied once again to be released. On the same day the Pecherskyy Court allowed that application and released her under an undertaking not to leave the town. 31. On 4 October 2012 the Pecherskyy Court found the applicant guilty of the desecration of the Tomb of the Unknown Soldier, acting as part of a group of persons following a prior conspiracy. The court noted that the applicant had convinced D. and two other people, whose identities remained unestablished, to carry out a performance at the “Eternal Glory” memorial aimed at protesting against the waste of natural gas caused by the burning of the Eternal Flame. D., who was questioned in court, confirmed that account of events. The court also questioned the memorial keeper, who had witnessed the performance from a distance, and the two police officers who had spoken to the applicant and her friends (see paragraph 7 above). Furthermore, the court examined the video-recording of the performance as material evidence. 32. The judgment mentioned the statement made by the applicant during the hearing that in her opinion people bringing flowers to the memorial did not really understand what exactly it was dedicated to. She insisted that she had not committed any crime as her performance had not been meant to desecrate the Tomb of the Unknown Soldier. Furthermore, she maintained that there could not be a tomb beneath the Eternal Flame because of the gas pipe. 33. The Pecherskyy Court held that the applicant’s arguments had no impact on the legal classification of her actions and that they were refuted by the evidence as a whole. The judgment further stated in that regard: “... the court considers that by committing deliberate acts in a group which showed disrespect for the burial place of the Unknown Soldier and for the public tradition of honouring the memory of soldiers who perished defending or liberating Kyiv and the lands of Ukraine from the fascist hordes, and by subsequently presenting those actions as a protest, [the applicant] has tried to escape social condemnation of her conduct and criminal liability for the offence.” 34. Relying on local authority documents, the court dismissed the applicant’s submission that there was no established location for the Tomb of the Unknown Soldier. 35. The court did not discern any aggravating or mitigating circumstances in the case. At the same time, in deciding on the penalty, it took into account, on the one hand, the fact that the applicant did not have a criminal record, that she was working as a political analyst and got positive character references by her place of residence and work. On the other hand, the court noted that the criminal offence in question was of medium gravity and that the applicant did not show any remorse for what she had done. As a result, she was sentenced to three years’ imprisonment, suspended for two years. 36. On the same date the Pecherskyy Court exempted D. from criminal liability under the surety of her employer. 37. The applicant appealed. Relying on the definition of the desecration of a burial place under the Burial and Funeral Business Act (see paragraph 47 below), she maintained that in the absence of any intention by her to “defile the family or social memory of a deceased or to show contempt for a burial place, or social and religious principles and traditions”, there were no constituent elements of a crime in her actions. The applicant reiterated her argument that her performance had been nothing more than a protest. Lastly, she submitted that the criminal proceedings against her had violated her right to freedom of expression under Article 10 of the Convention. 38. The prosecutor also appealed, considering the sentence to be too lenient. 39. On 18 December 2012 the Kyiv City Court of Appeal upheld the judgment of the first-instance court. It stated that desecration of a tomb could have different expressions, indicating an insulting attitude, mockery or disrespect towards a tomb or the person buried therein, regardless of the stated motives. As regards the applicant’s argument on her right to freedom of expression, the court noted that that right was not unlimited and that the restriction in the applicant’s case was in accordance with the law and pursued a legitimate aim. The appellate court also rejected the prosecutor’s appeal. 40. The applicant further reiterated her arguments in an appeal on points of law lodged by her, which was, however, rejected by the Higher Specialised Court for Civil and Criminal Matters on 11 April 2013. | 1 |
test | 001-175680 | ENG | RUS | CHAMBER | 2,017 | CASE OF SKLYAR v. RUSSIA | 4 | No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 6. The applicant was born in 1975 and lived in Novosibirsk before his arrest. 7. On 12 November 2010 the Kalininskiy District Court of Novosibirsk convicted the applicant of aggravated theft and armed robbery and sentenced him to nine years’ imprisonment. The applicant was represented by a lawyer in these proceedings. 8. On 24 January 2011 an appeal brought by the applicant himself was examined by the Novosibirsk Regional Court in the absence of counsel. The appeal court upheld the applicant’s conviction. 9. The applicant has been serving his sentence in IK-8 in Novosibirsk since 10 February 2011. 10. As regards the conditions of the applicant’s detention in the IK-8 facility, the Government submitted information which can be summarised as follows: 11. The Government also submitted that all the units where the applicant had been detained had had a sufficient number of sleeping places for all the detainees, they had been ventilated through openings in the windows and had had access to cold water in accordance with up to date sanitary standards. The units were equipped with ten to fifteen kettles to boil water and tanks containing potable water. All the lavatories had individual cabins with doors that were one and a half metres high, opening to the outside. They submitted photographs of the washbasins and lavatories. 12. The applicant acknowledged that he had an individual sleeping place. However, he underlined that the conditions he had to live in were cramped. He further submitted that the units had no access to natural light or had poor artificial lighting, that the ventilation did not work and that the air was damp. The food he was provided was not in accordance with the special diet prescribed for him. Furthermore, inmates with tuberculosis lived in the same dormitory. There were only three lavatories (in units 17 and 7), they had no doors and the applicant had no privacy when using them. They were clogged up most of the time owing to the number of people using them. Prisoners were only allowed one shower a week. The applicant had no access to potable water and only one washbasin out of four had worked. There were only two kettles for boiling water and the electricity was switched off during the day and therefore it was not possible to have boiled water. The applicant further submitted that the buildings where his units were located were in a hazardous condition and that the roof and walls were liable to fall in at any time owing to a lack of repairs. Lastly, the applicant adduced written statements from his four co-detainees who confirmed his account of the conditions of detention in IK-8 in Novosibirsk. | 1 |
test | 001-147490 | ENG | SRB | ADMISSIBILITY | 2,014 | POPOVIĆ AND OTHERS v. SERBIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicants are Serbian nationals and residents of the town of Majdanpek (their further personal details are set out in the Appendix to this decision). They were all represented before the Court by Mr D. Vasiljević, a lawyer practising in the same town. The Serbian Government (“the Government”) were initially represented by their former Agent, Mr S. Carić, and subsequently by their current Agent, Ms Vanja Rodić. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 1. The imposition and collection of a specific local tax 3. An assembly of the Majdanpek local community (Gradska mesna zajednica Majdanpek) referred a proposal to its residents to levy a selfimposed local tax (samodoprinos, hereinafter “the SILT”) to fund the building/maintenance of certain facilities/utilities for the local community. 4. As a result of a ballot held between 10 June and 10 July 2006 in the Majdanpek local community, the proposal was approved. 5. On 11 July 2006 the Council of the Majdanpek local community (hereinafter “the Council”) enacted an Ordinance introducing the SILT and elaborating on its purpose, administration and levying. The Ordinance, inter alia, (a) specified the persons liable for the SILT (poreski dužnici), the basis, rate and the method of its collection (in the case of taxable incomes, “deduction at source”, the tax being paid by intermediary institutions (poreski platci), that is, the taxpayers’ employers (Articles 6-10; see also paragraph 44 below); (b) identified the local community’s current account X, held by the Majdanpek field office of the Zaječar Public Revenue Service (Uprava za javna plaćanja Zaječar, filijala Majdanpek), as the account to be used for the collection of the SILT (Article 15); (c) identified the exact amounts to be allocated per year for services, and entrusted the Council with adopting annual plans in that regard (Articles 4.2 and 5); (d) limited, temporarily, the local community’s power to levy the SILT to five years (Article 3) or until the resources needed to fund the designated projects had been collected (Article 4.1); (e) designated the local community’s finance departments to carry out the necessary financial administrative tasks and to track income and expenditure in accordance with the law (Article 12); (f) stated that if the targeted amount was collected before the expiry of the time allotted for levying the SILT, the process should be discontinued and any overpayments repaid to the intermediary institutions in order to be passed on to the SILT taxpayers (Article 16); and (g) provided that the legislation governing tax proceedings and tax administration should be applicable, as relevant, to various issues (Article 11). 6. It would appear that on an unspecified date, following certain legislative changes (see paragraph 42 below), the finance department of the Majdanpek municipality (Opštinska uprava opštine Majdanpek-odeljenje za budžet, finansije i trezor) informed all of its local communities, by an instruction of 17 December 2007, that all public revenues should be paid into the municipality’s current account Y. It would appear that the Majdanpek local community received this instruction on 19 December 2007, but did not inform the applicants’ employers of it. 7. The applicants’ liability to pay the SILT was discharged by their employers, who withheld their contributions on a “pay-as-you-earn” basis in the form of a periodic monthly deduction from their taxable wages. It would appear that various employers, including those of the applicants, continued to pay all or most of the contributions into account X. 2. Discontinuation of imposition of the SILT and the related refund proceedings 8. On 6 October 2010 a non-governmental organisation informed the officials of the Majdanpek municipality that, in analysing the annual financial reports of the Majdanpek local community, it had discovered that by June 2010 twice the targeted amount had already been collected. 9. It would appear that on 13 December 2010, on receiving the above information, the Majdanpek municipality requested an opinion on the collection of the SILT from the Finance Ministry and the Ministry of State Administration and Local Self-Government. 10. On 7 February 2011 the Finance Ministry, referring to Article 16 of the Ordinance (see paragraph 5(f) above), stated that the Council should have monitored the collection of incomes from the SILT on a regular basis and, if the required amount was collected before the expiry of the period of five years, should have informed the taxpayers that collection of the SILT was being discontinued and that any overpayments would be refunded to them. 11. Following pressure from the inhabitants of Majdanpek and the re-election of the Council’s members, the newly formed Council issued a decision on 23 March 2011 to discontinue the levying of the SILT. On the same date the Council also formed a Commission to establish the total amount collected in respect of the SILT. On 6 April 2011 the levying of the SILT was discontinued. 12. On 16 May 2011, on the basis of the data provided by the relevant finance departments of the Majdanpek municipality and the corresponding local community, the Commission found that: (a) the targeted amount had been collected by the end of February 2009 and, thereafter, a further RSD 33,410,126.99 dinars (RSD; 335,000 euros on that date) had been collected unlawfully and without cause; (b) each taxpayer was entitled to claim a refund of the amounts deducted from his or her income after the said date; and (c) a total of RSD 3,422,524.32 remained in the current accounts into which the SILT had been paid. 13. On 26 August 2011 the Ministry of Finance stated that the reimbursement of the overpaid public revenues – if the ground for collection of the public income had been wrong – should be carried out in accordance with the law governing the collection of public revenues and that refunds should be made from the relevant revenue account. 14. On an unspecified date in 2011 the finance department of the Majdanpek municipality announced that it would refund overpayments to the SILT taxpayers once they had filed their claims in that regard. 15. According to a report from the finance department submitted by the Government, it dismissed twelve applications as incomplete and adopted 1,869 decisions for the refund of overpayments, of which twenty-two were the subject of appeals. Two out of the twenty-two appeals are pending, while twenty have been decided upon. The first claim was submitted on 20 June 2011 and, since then, a total amount of RSD 12,938,571.70 has been reimbursed to citizens, the latest payment being made on 22 July 2013. The finance department further clarified that it had refunded only the overpaid SILT which the taxpayers’ employers as intermediary institutions had paid into current account Y (see paragraph 6 above). Following the instruction of 17 December 2007 (ibid.), the contributions paid into current account X (see paragraph 5(b) above) could not be considered as overpaid SILT, but only as “funds paid into the wrong current account”. 16. According to the documents submitted by the applicants, the first four applicants and twenty-four other SILT taxpayers filed a claim with the finance department of the Majdanpek municipality requesting the refunding of overpayments made after 1 March 2009. Between 30 July 2011 and 7 May 2012 the finance department ruled on their claims as follows. 17. In two cases, on 30 July 2011 and 7 May 2012 respectively, the finance department refunded the claimants without making reference to any current account. 18. Between 8 August 2011 and 30 January 2012 the finance department, referring to its instruction of 17 December 2007, agreed to refund the other claimants, including the first four applicants, only the overpaid SILT which their employers had paid into account Y, and rejected the remainder of their claims. In so doing, it informed the first four applicants and another two claimants that they could appeal to the Niš Regional Centre of the Ministry of Finance’s Public Revenue Service, and directed the remaining claimants to appeal to the Majdanpek municipality’s executive council (Opštinsko veće Opštine Majdanpek). On 21 February 2012 the latter authority rejected all the appeals in a one-sentence decision, on the same ground as that cited by the finance department. 19. It would appear that the first four applicants and the other two claimants did not appeal against the first-instance decisions. 20. The remaining three applicants and the majority of SILT taxpayers did not institute tax proceedings, but filed civil claims instead. 3. The relevant civil proceedings 21. Between 15 July and 2 November 2011 all of the applicants filed separate civil claims for unjust enrichment (tužba zbog sticanja bez osnova) with the Negotin Court of First Instance – Majdanpek unit (Osnovni sud u Negotinu – Sudska jedinica Majdanpek; hereinafter “the Court of First Instance”), seeking a refund of the overpaid SILT from the Majdanpek municipality and the Majdanpek local community jointly, together with the statutory interest accrued. It would appear that several hundred SILT taxpayers in Majdanpek pursued the same remedy. 22. On 17 August 2011 the Court of First Instance ruled in favour of one of the claimants. On 16 November 2011 the Negotin High Court quashed this judgment, stating that the matter in issue should not be considered as a civil matter. 23. On 23 and 25 November 2011 respectively the applicants’ lawyer applied to the Court of First Instance and its President, requesting them to initiate proceedings before the Supreme Court of Cassation to resolve the issue of civil jurisdiction in respect of the SILT refunds, in order to harmonise the domestic case-law (see paragraphs 48-50 below). On 26 November 2011 he also submitted a request to the Supreme Court of Cassation urging it to adopt an opinion on that issue. He did not receive any response to his requests. 24. Between 24 November 2011 and 6 January 2012 the Court of First Instance stated that it did not have competence ratione materiae to hear the applicants’ cases. In its reasoning, the court considered the SILT as a source of primary income for municipalities (izvorni prihod opštine). It observed that the Tax Proceedings and Tax Administration Act, which defined tax matters as public-law matters between the Central Revenue Service on the one hand and natural and legal persons on the other, empowered the latter to request a refund of overpaid or erroneously levied tax and ancillary contributions in tax proceedings. The court further stated that the provisions of that Act should accordingly be applicable to various SILT-related matters not specifically covered by the Local Government Act, and that, according to the Tax Proceedings and Tax Administration Act, the powers of local government departments as regards the assessment, levying and control of the primary incomes of municipalities should correspond to the powers of the Central Revenue Service. Therefore, and also given that the Majdanpek local community had never adopted a decision revoking the SILT, the present disputes could not be characterised as civil-law disputes coming within the competence ratione materiae of the civil courts. 25. Between 26 January 2012 and 21 February 2012 the Negotin High Court upheld the first-instance decisions on appeal. 4. Other civil suits 26. The Constitutional Court declared null and void several ordinances enacted by other local governments imposing or extending the levying of the SILT as being unlawful or unconstitutional for various reasons. 27. On 29 June 2006 the Constitutional Court declared null and void one such ordinance adopted by the Prijepolje local community as it had, inter alia, retroactively imposed the SILT between March 2003 and July 2006. In apparently more than three thousands cases examined between February 2010 and November 2011, the Prijepolje Court of First Instance and the Užice High Court accepted jurisdiction and upheld the claims for a refund of the above-mentioned unlawfully imposed SILT as being civil in nature. Referring to Articles 210-214 of the Obligations Act and the Local Government Finance Act (see paragraphs 60 and 45 below), the courts in question ordered the Prijepolje municipality and one of its local communities to jointly refund the claimants (see, for example, the final decisions of the Prijepolje Basic Court P. 1571/10 of 1 December 2010, P. 3124/10 of 25 November 2011 and P. 420/12 of 7 August 2012; and the decisions of the Užice High Court upholding the first-instance decisions of the Prijepolje Basic Court, Gž. 1675/10 of 13 December 2010; Gž. 65/11 of 19 January 2011; 62/11 of 21 January 2011; 58/11 of 18 January 2011; 172/11 of 4 February 2011; 70/11 of 24 January 2011 and 1234/11 of 15 July 2011). 5. Constitutional remedies 28. In a constitutional appeal of 23 March 2012 the first applicant contested the relevant judicial decisions in civil proceedings, relying on various Articles of the Constitution (see paragraph 35 below). He claimed that (i) the summary dismissal of his civil claim had arbitrarily deprived him of judicial protection and of the expected refunds; (ii) the municipal bodies had acted unlawfully, in an untimely manner and in breach of the rule of law and property rights when collecting the SILT and, thereafter, when ruling on his and others’ claims; and (iii) the divergent case-law of the competent courts in his case and of the domestic courts which had accepted jurisdiction ratione materiae in similar cases amounted to legal uncertainty, unequal protection of citizens before the law and discrimination against him. The applicant did not, however, provide the Constitutional Court with copies of any of the judgments in which the civil courts had accepted jurisdiction in cases similar to his own. 29. On 14 April 2012 the Constitutional Court, referring to Article 85 § 2 of the Constitutional Court Act (see paragraph 39 below), requested the applicant to provide a copy of the first-instance administrative decision in his case and, if he had appealed against it, of the second-instance decision. 30. On 25 April 2012 the first applicant provided a copy of the finance department’s decision of 16 August 2011, clarifying that he had not appealed against that decision to the executive council (compare and contrast with paragraph 18 above). He considered that avenue of redress to be futile in view of overall municipal policy and the rejection of claims in respect of contributions that had been paid into account X. 31. In its decision of 11 September 2012 the Constitutional Court held that the applicant had not been denied access to a court, given that the dispute in issue had been a “tax administrative” matter to be decided by the tax authorities rather than a civil matter for the civil courts. 32. It further dismissed the property-related complaints on the grounds that it “could not identify any link between the applicant’s allegations and the contested judicial decisions in civil proceedings”. Nevertheless, the Constitutional Court pursued its analysis, considering that the applicant and other SILT taxpayers should not have suffered harm on account of the Majdanpek local community’s failure to amend its Ordinance and inform the tax intermediaries in a legally valid manner of the change in the relevant current account. It concluded that “the applicant and his employer were entitled to request the reimbursement of overpayments from the Majdanpek local community in tax (administrative) proceedings, within the time-limits and prescription periods laid down by law, given that the overpayments had been paid into its current account”. 33. The Constitutional Court further summarily dismissed the applicant’s complaint alleging unequal protection of rights, considering that the general allegations before it, which were unsupported by evidence (paušalno izneti navodi), provided no constitutional basis for claiming a breach of that right. It also stated that there was no constitutional basis for examining the alleged violations of the general principles set out in Articles 18 to 21 (see paragraph 35 below), given that no violation of substantive constitutional rights had been found. 34. Throughout 2012 the other six applicants lodged constitutional appeals identical or very similar to that lodged by the first applicant. The Constitutional Court’s decisions rendered in their cases between 26 November 2012 and 18 December 2012 were summarised versions of its leading ruling in the first applicant’s case. 35. The relevant provisions of the Constitution relevant to the applicants’ appeals are as follows: Article 18 (direct application of guaranteed rights), Article 19 (purpose of constitutional guarantees), Article 20 §§ 1 and 3 (restriction of human rights), Article 21 §§ 1, 2 and 3 (equality and prohibition of discrimination), Article 22 § 1 (right to judicial protection of human rights), Article 32 § 1 (right to a fair trial), Article 35 § 2 (right to be awarded damages) and Article 58 §§ 1 and 4 (right to peaceful enjoyment of property). 36. Article 36 § 1 (3) provides, inter alia, that the Constitutional Court shall reject (odbaciće) a constitutional appeal when the appellant has failed, following an additional request issued in this regard, to furnish the court with all the relevant details indispensable for the proper conduct of the proceedings before it. 37. Article 36 § 1 (4) provides, inter alia, that the Constitutional Court shall reject a constitutional appeal whenever the relevant legal conditions for its examination have not been fulfilled. It is not required to issue any additional warning in this regard. 38. Article 85 § 1 refers to the compulsory information which must be contained in any constitutional appeal. This information includes: (a) the appellant’s personal data; (b) information concerning his or her legal counsel; (c) the particulars of the decision being challenged; (d) an indication of the relevant provisions of the Constitution; (e) a description of the violations alleged; (f) the redress sought by the appellant; and (g) the appellant’s personal signature. 39. Article 85 § 2 provides that appellants should also substantiate their constitutional appeals with any and all evidence of relevance for the determination of their case, provide a copy of the impugned decision, and demonstrate by means of supporting documents that all other effective remedies have already been exhausted. 40. According to this opinion, where a constitutional appeal lacks any of the compulsory elements (obavezni elementi) mentioned in Article 85 of the Constitutional Court Act, the appellant should be invited to provide the additional information by a certain deadline or have the appeal rejected pursuant to Article 36 § 1 (3) of the Constitutional Court Act. 41. The provisions regarding the legal nature and administration of local taxation, including the self-imposed local tax (“the SILT”), are set out in the following legal acts which have been amended or repealed on numerous occasions over the years: (a) the Local Government Act 2002 (Zakon o lokalnoj samoupravi, published in OG RS nos. 9/02, 33/04 and 135/04); (b) the Local Government Act 2007 (OG RS no. 129/07, which came into force on 1 January 2008 and repealed the Local Government Act 2002); (c) the Local Government Finance Act (Zakon o finansiranju lokalne samouprave, OG RS nos. 62/06, 47/11 and 93/12, which came into force on 1 January 2007 and repealed Article 5, Chapter V on local government financing and Articles 77 to 104 of the Local Government Act 2002); (d) the Budgetary System Act 2002 (Zakon o budžetskom sistemu, OG RS nos. 9/02 ... 86/06); (e) the Budgetary System Act 2009 (OG RS nos. 54/09, 73/10 and 101/10); (f) the Act on Public Income and Public Expenditure (Zakon o javnim prihodima i javnim rashodima, OG RS nos. 76/91 ... 135/04); and (g) the Tax Proceedings and Tax Administration Act (Zakon o poreskom postupku i poreskoj administraciji, OG RS nos. 80/02 ... 2/2012). 42. The legal status of the SILT at the relevant time for the present cases will be summarised below. With the gradual decentralisation of governmentance in the early 2000s, the assessment, collection and control of several taxes and revenues, including the SILT, were redefined and transferred entirely from central to local government level (the Local Government Finance Act, Articles 60 and 6 in that order). Accordingly, the local government units (municipalities, towns and the city of Belgrade) have, in principle, the same rights and duties as the Central Revenue Service of the Ministry of Finance with its field offices (there are certain exception which are not relevant for the present case; see Articles 2a and 62 of the Tax Proceedings and Tax Administration Act). 43. The SILT was initially defined as a source of primary public revenue either for local government units such as municipalities or for the lower tier of government, the local communities (mesne zajednice), depending on whether the contributions in question were collected on and for the territory of the whole municipality or only the particular local community (Articles 78 § 14 and 73 § 1.2 of the Local Government Act 2002). However, the Local Government Act 2007 and the Local Government Finance Act (Articles 75 § 1.1 and 6 § 15 respectively) stipulated that the SILT was designed as a source of primary revenue exclusively for the local government units, and that the collected funds were credited to their budgets and strictly intended for specific purposes, while funds for the functioning of the local communities were provided only under specific budget headings. 44. Pursuant to the Local Government Finance Act, where a majority of citizens vote in favour of imposing the SILT for specific investments (for instance, to fund the building or maintenance of utility services or buildings of value to the community), contributions become mandatory and are required from all citizens with different taxable incomes, including those who voted against the SILT or did not vote at all (Article 26). The competent local government authorities subsequently define the procedures for calculating and collecting the SILT in the relevant decision, except where this is done by applying the principle of “deduction at source”. In the latter case, the deduction of the SILT from taxable income is the responsibility of those who pay these personal incomes and/or revenues (intermediaries; poreski platci), who deduct it when paying other applicable taxes and benefits (Article 28). The Act also provides that the legislation governing tax proceedings and tax administration should be applicable, as relevant, to issues such as the manner of determination and assessment of the SILT, its collection, deadlines for payments, statutes of limitation, calculation of interest and other issues not specifically covered by the relevant legislation (Article 30). 45. Lastly, the municipality’s administrative departments (opštinsko uprava) and the executive council (opštinsko veće) respectively decide at first and second instance on administrative matters which fall within the competence of the municipality (Articles 52 § 3 and 46 § 5 respectively of the Local Government Act 2007). 46. Article 4 provides that a court of law cannot refuse to consider a claim in respect of which its jurisdiction has been established by law or by the Constitution. 47. Article 29 provides that the Administrative Court adjudicates in administrative matters. 48. Article 31 provides that the Supreme Court of Cassation, inter alia, shall adopt general legal positions in order to ensure uniform application of the law by the courts. 49. Article 176 provided that where there was a large number of cases pending at first instance raising the same preliminary legal issue, the court of first instance could, either of its own motion or at the request of one of the parties, institute separate proceedings before the Supreme Court requesting the latter to resolve the issue in question. The lawsuits pending at first instance were stayed in the meantime. Article 178 provided that the Supreme Court determined the request under the procedure for the adoption of its legal opinions and could refuse to examine it if the preliminary legal issue was not of prejudicial importance in a large number of pending cases. 50. The Civil Procedure Act 2011 entered into force on 1 February 2012, thereby repealing the 2004 Act. Articles 180 to 185 correspond, in principle, to the provisions of the 2004 Act described at paragraph 49 above, save that the Supreme Court of Cassation has competence to rule on the request within sixty days of receiving it and to adjudicate on the issue. 51. Under Articles 19 and 56 §§ 3 and 4, no administrative authority may take over an administrative matter which is within the jurisdiction of another authority and decide thereon, save where so provided by law. If the authority finds that it is not competent to receive written submissions, its officer shall advise the claimant or appellant accordingly and refer him or her to the competent authority. If the submission was received by mail, the authority shall immediately send the submission to the competent authority and notify the party thereof. If the authority which does not have competence cannot establish with certainty which authority is competent in the matter, it must decline competence and serve that decision immediately on the party concerned. 52. Article 3 of the Act provides, inter alia, that the Administrative Court adjudicates on the lawfulness of final decisions rendered in administrative matters and/or in the determination of rights, duties or direct personal interests based on the law, where judicial protection has not been secured otherwise. 53. Under Article 5, an administrative matter within the meaning of this Act is an individual situation of public interest where the necessity to legally and authoritatively determine the future conduct of a party arises directly from the provisions of the law. 54. According to Article 6, the competent authorities for the purposes of this Act are, inter alia, local government bodies. 55. Articles 18 § 1 and 19 provide that judicial review proceedings may be brought within thirty days from the date on which the final decision was served on the party in question, or where an appellate administrative body fails to decide on an appeal lodged more than sixty days previously and again fails to do so within a further seven days after receipt of the plaintiff’s repeated request to this effect. The competent court should, in principle, hold a public hearing and may also rule in accordance with the principle of equity (načelo pravičnosti). 56. Article 42 § 1 provides that if the competent court decides to uphold the action it shall quash the impugned administrative act in part or whole and order fresh consideration of the case (spor ograničene jurisdikcije). Article 43 § 1 provides, however, that the competent court may instead rule on the merits of the claim, if the facts of the case and the very nature of the dispute in question allow for this particular course of action (spor pune jurisdikcije). Articles 41 §§ 1 to 4, 61 and 62 provide details of other situations in which a claimant’s request may be decided on the merits. 57. When deciding in a case concerning collection of the SILT, the Administrative Court considered that the municipality rather than the local community was the creditor in respect of the SILT for the purposes of standing to sue (see 9 U. 740/11 of 30 August 2011; see also Administrative Court Bulletin no. 3/2012). 58. No details of the practice of the Administrative Court on SILT refunds, if any, have been provided. However, between 9 December 2010 and 15 October 2012 the Administrative Court rendered six judgments in cases concerning tax refunds. In two of these judgments it quashed the administrative acts and/or ordered fresh consideration of the case, while in four cases it rejected (odbio) the applications for judicial review (see 7 U 427/10, 9 U 23584/10, 7 U 6202/10, 9 U 9004/10, 12 U 30082/10 and I-2 U 25802/10). 59. Furthermore, in six judgments rendered between 8 December 1999 and 9 April 2009 the Supreme Court and the Supreme Military Court (formerly the competent courts for judicial review in administrative matters), respectively, ruled on the merits of administrative disputes concerning property-related municipal decisions, pension entitlements, disability benefits, the right to stand for election and a proposed change in the registration of persons authorised to represent political parties (see Up. br. 2530/03, Už. 133/92, Už. 11/08, U.br. 1739/08, U.br. 48/08 and U.br. 1093/02). 60. Articles 210 to 219 set out provisions concerning unjust enrichment (sticanje bez osnova; condictio sine causa). Under the general rule set forth in Article 210, when a part of the property of one person passes, by any means, into the property of another person and that transfer has no basis in a legal transaction or statute, the beneficiary is required to return the property. If restitution is not possible, he or she is required to provide compensation equal to the value of the benefit received. The obligation to return the property or provide compensation for its value arises even when it was received in connection with a cause which did not come into existence or which subsequently ceased to exist. | 0 |
test | 001-168056 | ENG | RUS | COMMITTEE | 2,016 | CASE OF KHAMZIN AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 4. The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the excessive length of their pre-trial detention. In applications nos. 5441/11 and 21051/11 the applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-179563 | ENG | RUS | COMMITTEE | 2,017 | CASE OF SASHCHENKO v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 5. The applicant was born in 1978 and lives in Nizhniy Novgorod. 6. On 25 October 2002 the Military Court of the Vladikavkaz Garrison (“the Military Court”) ordered, inter alia, the head of the respondent military institute to re-calculate the period of the applicant’s service, applying the favourable terms of such calculation for a specified period of service. The applicant was also awarded some additional allowances and payments for certain periods. 7. The judgment came into force on 5 November 2002. 8. On 3 March 2003 the Military Court issued a writ of execution. On 4 August 2003 the bailiffs’ service instituted the enforcement proceedings. 9. On 19 September 2003 the enforcement proceedings were terminated and the writ of execution was returned to the applicant, as the debt could not be recovered. 10. On 13 November 2003 the head of the respondent military institute issued Order No. 463 requiring to make payments in accordance with the judgment of 25 October 2002. However, no calculations or payments were made at that time. 11. On 4 February 2005 the applicant submitted the writ of execution to the Federal Treasury. 12. On 18 May 2005 the writ was returned to the applicant on the ground that the judgment obliged an official of an organisation to take certain actions rather than ordered to recover payments from a budgetary organisation. Thus, the writ of execution was to be submitted to the bailiffs’ service. 13. On an unspecified date in 2005 the applicant submitted the writ of execution to the bailiffs’ service. 14. On 14 April 2006 the writ of execution was returned to the applicant from the bailiffs’ service without enforcement. The bailiffs explained that for the applicant to be able to receive the payments under the judgment, he should obtain a writ of execution stating the sum of the debt to be recovered. After that, the writ could be submitted to the Federal Treasury for enforcement. 15. In 2005 in accordance with Order No. 463, the defendant military institute calculated the amounts due to the applicant as follows: the compensation for the supplementary ration for the period from October 1998 until March 2000 –11,341.85 Russian roubles (RUB); allowance for special regime of the service in 1998-2002 – RUB 2,720.1; and special allowance – RUB 327,000. In total: RUB 341,061.95. | 1 |
test | 001-162868 | ENG | HRV | CHAMBER | 2,016 | CASE OF DŽINIĆ v. CROATIA | 3 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković | 5. The applicant was born in 1952. He is a businessman living in Županja. 6. On 11 August 2000 the Vukovar County State Attorney’s Office (Županijsko državno odvjetništvo u Vukovaru) asked an investigating judge of the Vukovar County Court (Županijski sud u Vukovaru) to open an investigation in respect of the applicant, in his capacity of the director of company M., in connection with suspicion of several charges of economic crime. It also requested that several items of the applicant’s real property be restrained so as to secure effective enforcement of a probable confiscation order in the amount of 3,573,747.24 Croatian kunas (HRK) (approximately 469,475 Euros (EUR)). 7. The investigation was opened on 21 August 2000, and on 6 March 2001 the investigating judge declared the request for seizure of the applicant’s property inadmissible on the ground that under the Code of Criminal Procedure applicable at the time the State Attorney’s Office had not been authorised to make such a request. 8. After the completion of the investigation, on 10 May 2002 the applicant was indicted, together with three other persons, in the Vukovar County Court on several charges of economic crime, concerning in particular misappropriation of company shares, and misuse of the company M.’s assets and facilities. 9. On 28 May 2007 the Vukovar County State Attorney’s Office amended the indictment, dropping the charges on six counts against the applicant and charging him on one count of misappropriation of company shares, and several counts of misuse of the company M.’s assets and facilities. The total value of the pecuniary gain which the applicant had allegedly obtained by the commission of these offences was set out at approximately EUR 1,060,000. 10. On the basis of the amended indictment, on 8 April 2008 the Vukovar County Court found the applicant guilty of charges of misappropriation of company shares and acquitted him of all other charges. The applicant was sentenced to three years and six months’ imprisonment and confiscation of the pecuniary gain in the amount of HRK 6,169,977.35 (approximately EUR 850,000) allegedly obtained by the commission of the offence of which he was found guilty. 11. Upon appeal by the applicant and the Vukovar County State Attorney’s Office against this judgment, on 18 October 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed it and ordered a retrial. 12. In the resumed proceedings, and after the 2010 Confiscation of the Proceeds of Crime Act (see paragraph 36 below) had entered into force, on 27 June 2012 the Vukovar County State Attorney’s Office requested the Vukovar County Court that several items of the applicant’s real property be seized (ten plots of land, two houses and a commercial building) so as to secure effective enforcement of a probable confiscation order in the amount of approximately EUR 1,060,000. 13. In support of its request the Vukovar County State Attorney’s Office submitted records from the land registry attesting to the applicant’s ownership of the real properties in respect of which the request for a seizure order was made. It did not submit an assessment of the value of the property nor did it make any reference to its possible value. However, according to the information submitted by the Government, the assessment of the value of several items of the real property, which were the subject matter of the proceedings, had been made on the basis of the material available from the investigation case file and their estimated value at the moment of purchase in 1997 (in total estimated at approximately EUR 440,000), whereas the assessment of the value of the remainder of the real property had been made by the Vukovar County State Attorney’s Office with regard to the information available in the land registry, although the records in the land registry did not contain information on the value of the property itself. 14. On 27 June 2012 a single judge of the Vukovar County Court ordered seizure of the applicant’s real property listed in the request of the Vukovar County State Attorney’s Office so as to secure effective enforcement of a possible confiscation order in the amount of approximately EUR 1,060,000. No reasoning was provided with regard to the proportionality of the alleged pecuniary gain obtained and the value of the restrained real property. 15. On the basis of an order of the Vukovar County Court, the seizure of the applicant’s real property was registered in the land registry. 16. The applicant challenged the decision of the Vukovar County Court before the Supreme Court and on 5 September 2012 the Supreme Court quashed it and remitted the matter for re-examination on the grounds that the decision on seizure of the real property was not within the competence of a single judge but a panel of three judges. 17. On 17 October 2012 the applicant requested the Vukovar County Court that the quashed seizure order be removed from the land registry. He contended that he had taken a bank loan which was secured by a mortgage on his real property and that the loan would not be extended due to the seizure of his property, which could lead to his total bankruptcy and destruction of his business. In support of his request, the applicant submitted email correspondence with the bank asking him to clarify when the seizure order would be lifted, as it affected the management of his loan. 18. On 18 October 2012 the applicant’s representative received a summons by the Vukovar County Court to appear before a three-judge panel of that court on 30 October 2012, without specifying the exact reason for the summons. It was also indicated that the court session could be held in the absence of the defence. 19. On 30 October 2012 a three-judge panel of the Vukovar County Court examined the request of the Vukovar County State Attorney’s Office for the seizure of the applicant’s real property. On the same day it accepted the request in full and ordered restraint of the applicant’s real property listed in the request of the Vukovar County State Attorney’s Office (see paragraph 12 above) by prohibiting its alienation or encumbrance. The relevant part of the decision reads: “The records from the land registry ... show that the accused Antun Džinić is the owner of the above listed items of real property. Under section 11 § 1(A) in conjunction with section 31 § 2 of the Confiscation of the Proceeds of Crime Act (Official Gazette no. 145/2010), and also in view of section 12 of the Confiscation of the Proceeds of Crime Act, this panel finds that it is presumed that there is a danger that the claim of the Republic of Croatia with regard to confiscation of the proceeds of crime would not be enforceable or that its enforcement would be difficult without ordering of a restraint measure. Under Article 82 of the Criminal Code no one can retain the proceeds of crime. By the indictment of the Vukovar County State Attorney’s Office ... the accused Antun Džinić is charged, under count 4 (a), (b) and (c), of having procured for himself a pecuniary gain in the amount of HRK 1,800,857.74. ... [T]he proceedings at issue concern ... the confiscation of the proceeds of crime under section 11 § 1(A) in conjunction with section 31 § 2 of the Confiscation of the Proceeds of Crime Act. In view of the above, it is ordered to the land registry of the Županja Municipal Court to register the restraint of the listed property in the land registry.” 20. The restraint of the applicant’s real property was registered in the land registry on the basis of an order of the Vukovar County Court. 21. On 12 November 2012 the applicant lodged an appeal before the Supreme Court challenging the decision of the Vukovar County Court ordering the seizure of his property. He contended in particular that the value of the restrained property was according to his provisional estimate more than HRK 20,000,000 (approximately EUR 2,600,000), which significantly surpassed the pecuniary gain allegedly obtained by the commission of the offences which were the subject matter of the proceedings. He also stressed that it was reasonably expected from the Vukovar County Court to conduct at least a general assessment of the value of the property restrained and the pecuniary gain allegedly obtained by the commission of the offences in question. The applicant therefore submitted that by failing to make any such assessment, the Vukovar County Court had imposed an excessive individual burden on his property rights. 22. The Supreme Court dismissed the applicant’s appeal on 27 December 2012. With regard to the applicant’s specific complaint concerning the lack of proportionality of the measure imposed, the Supreme Court noted: “The Supreme Court finds that the principle of proportionality has not been breached since Antun Džinić is charged with having obtained a pecuniary gain in the amount of HRK 1,800,857.74, and the value of the restrained property does not justify [his] argument that the value of the restrained property listed in the operative part of the impugned decision significantly surpasses the [possible confiscation] claim.” 23. On 18 February 2013 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) challenging the decisions of the lower courts on the seizure of his property. He relied on the Convention and the Court’s case-law, contending that the decision on the seizure of his property had been disproportionate. 24. On 20 February 2013 the applicant requested the Vukovar County Court that the seizure order be lifted or reassessed. He argued that there were other less restrictive means of securing the enforcement of a possible confiscation order, and contended that it had not been alleged that the seized property had been obtained by a criminal activity. He also urged the Vukovar County Court to make an assessment of the value of the seized property so as to limit the scope of the restraint to the value of the pecuniary gain allegedly obtained. He also contended that the value of the seized property significantly surpassed the alleged pecuniary gain obtained, which had endangered the normal functioning of his business. 25. On 25 April 2013 the Constitutional Court declared the applicant’s constitutional complaint of 18 February 2013 (see paragraph 23 above) inadmissible on the ground that the decisions of the lower courts did not concern a decision on the merits of any of the applicant’s rights or obligations or any criminal charge against him. 26. On 9 July 2013 a three-judge panel of the Vukovar County Court dismissed the applicant’s request that the seizure order be lifted or reassessed (see paragraph 24 above). The relevant part of the decision reads: “The request for the lifting of the restraint and the request for its modification are unfounded. It follows from the final indictment of the Vukovar County State Attorney’s Office ... that there is a reasonable suspicion that the accused Antun Džinić, by the offences listed in count 4 (a), (b) and (c) [of the indictment], obtained pecuniary gain in the total amount of HRK 1,800,857. Since the [seizure order] is based, under section 12 § 1 of the Confiscation of the Proceeds of Crime Act, on the presumption that there is a danger that the confiscation of the proceeds from crime would not be enforceable or that its enforcement would be difficult without ordering of a restraint measure, it was decided as noted in the operative part of this decision.” 27. On 12 July 2013 the applicant challenged this decision by lodging an appeal before the Supreme Court. He complained that he had not had an effective opportunity to challenge the seizure order in a hearing before the Vukovar County Court and that the seizure of his property had been disproportionate and thus contrary to Article 1 of Protocol No. 1. The applicant further stressed that it was unclear for which amount of the alleged pecuniary gain the seizure order had been made given that the Vukovar County Court had only referred to one count of the indictment, alleging that he had obtained pecuniary gain in the amount of HRK 1,800,857, whereas it had ignored the other count of the indictment according to which he had obtained a pecuniary gain in the amount of HRK 6,169,977.35. The applicant, therefore, assuming that the overall amount of the pecuniary gain for which the seizure order had been made corresponded to the sum of the two amounts noted (approximately EUR 1,060,000), submitted a detailed estimate value of each item of the restrained property based on the information from a publicly available Internet portal on the market values of real properties in Croatia. According to this estimate, the total value of the seized property corresponded to some EUR 9,887,084. The applicant thus contended that there was a gross disproportionality between the alleged pecuniary gain obtained by the commission of the offences referred to in the indictment and the value of the seized property, which imposed on him an excessive individual burden. 28. On 17 October 2013 the Supreme Court, acting as the appeal court, dismissed the applicant’s appeal by noting the following: “The same complaints had been made against the decision of 30 October 2012 ... and then it was answered to the appellant that the principle of proportionality had not been breached ... By a speculative assessment of the value of the real properties listed in the appeal, the appellant did not manage to put into doubt the findings of the first-instance court. The appellant’s argument that it is not clear from the impugned decision which amount of the pecuniary gain he has allegedly obtained is unfounded. The first-instance court stated in the impugned decision that the accused had obtained a pecuniary gain in the amount of HRK 1,800,857, as referred to in count 4 of the indictment, but it failed to cite the amount referred to in count 1 of the indictment of HRK 6,169,977.35, which is as such, in view of the status of the case, uncontested. There is therefore no doubt that the [seizure order] was made in respect of the overall amount of the possible pecuniary gain, as it was explained in the first decision by which the measure was ordered.” 29. The applicant challenged this decision before the Constitutional Court and on 7 February 2014 the Constitutional Court declared it inadmissible, reiterating its previous reasoning (see paragraph 25 above). 30. At a closing hearing in the criminal proceedings before the Vukovar County Court on 8 July 2014, the applicant again requested that the seizure order be lifted. 31. On 11 July 2014 the Vukovar County Court found the applicant guilty on the charges of misuse of the company M.’s assets and facilities by which he had allegedly obtained a pecuniary gain in the amount of HRK 1,800,857.74 (approximately EUR 240,000), and acquitted him on charges of misappropriation of company shares and one alleged event of misuse of the company M.’s assets and facilities. The applicant was sentenced to two years’ imprisonment and confiscation of the amount of HRK 1,800,857.74. The case is pending on appeal before the Supreme Court. 32. On the same day the Vukovar County Court dismissed the applicant’s request for lifting of the seizure order made at the hearing on 8 July 2014 (see paragraph 30 above) as ill-founded on the ground that the seizure of the property could be maintained for sixty days following the relevant procedures related to the finality of the judgment. As the judgment had not become final, the Vukovar County Court considered that there was no ground for lifting of the seizure order. | 1 |
test | 001-160692 | ENG | CHE | CHAMBER | 2,016 | CASE OF DI TRIZIO v. SWITZERLAND | 2 | Remainder inadmissible;Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano | 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. The applicant was born in 1977 in Uznach and lives in RapperswilJona, in the Canton of St Gallen. 9. After originally training to be a hairdresser the applicant took up fulltime work as a shop assistant. In June 2002 she was forced to stop work owing to back trouble. 10. On 24 October 2003 the applicant applied to the Disability Insurance Office of the Canton of St Gallen (“the Office”) for a disability benefit on account of her lower back and spinal pain. 11. On 6 February 2004 she gave birth to twins. Her back pain had worsened further during the pregnancy. 12. On 15 March 2005 the Office carried out a household assessment (Abklärung im Haushalt) at the applicant’s home, during which the applicant stated (i) that she suffered from constant back pain which often extended down to her left foot; that she had particular difficulty standing in the same place for any length of time and could not remain seated for more than ten minutes; that she could walk for half an hour, but not on a daily basis; and that the pain became worse when she was carrying the children; (ii) that she would have to work half-time for financial reasons since her husband’s net salary was just 3,700 Swiss francs (CHF) (approximately 3,602 euros (EUR)). The report on the assessment concluded that the applicant’s capacity to perform household tasks was reduced by 44.6%. In its report dated 2 May 2005 the Office found that the applicant should be classified (i) as a person in full-time paid employment (Vollerwerbstätige) up to the end of 2003; (ii) as a housewife (Hausfrau) between January and May 2004; (iii) as a person theoretically capable of working 50% (zu 50 % hypothetisch Erwerbstätige) as of June 2004. 13. On 16 June 2005 Dr Ch.A.S. informed the Office that the applicant was unable to work more than half-time in a suitable occupation and that any increase in her working hours appeared to be ruled out. 14. In a decision of 26 May 2006 the Office found that the applicant should be granted a benefit for the period from 1 June 2003 to 31 August 2004, but did not qualify for any benefit from 1 September 2004 onwards. The Office arrived at this result by the following means. With regard to the period from 20 June 2002 until the end of May 2004, it assessed the applicant’s degree of disability at 50% on the basis of a calculation of her income. As to the subsequent period, the Office considered that the socalled combined method should be applied, taking the view that even if she had not had a disability the applicant would have reduced her working hours following the birth of her children. It based that finding, in particular, on the applicant’s assertion that she felt able to work only half-time and wished to devote the remainder of her time to her household tasks and her children. Furthermore, on the basis of the household assessment referred to above, the Office estimated the applicant’s capacity to perform household tasks at 56% (that is to say, her degree of disability at 44%). When the formula set out below was applied, the degree of disability obtained on the basis of these various factors was only 22%, meaning that the applicant did not reach the minimum 40% degree of disability needed to trigger entitlement to a benefit: 50 % (paid employment): no loss of earnings 0.5 x 0 % = 0 % 50 % (household tasks and childcare): 0.5 x 44 % = 22 % Total = 22 % 15. The applicant lodged a complaint with the Office, which was dismissed on 14 July 2006. Following a fresh calculation the Office recognised the applicant as having a 27% disability, still below the minimum required in order to qualify for a benefit. This figure was obtained by applying the combined method, using the following parameters: 50 % (paid employment): 0.5 x 10 % = 5 % 50 % (household tasks and childcare): 0.5 x 44 % = 22 % Total = 27 % In completing the first line of the formula, the Office took as a basis a hypothetical income (for full-time work) of CHF 48,585 (approximately EUR 47,308), calculated on the basis of the statistical data for the socioprofessional category to which the applicant, as an auxiliary worker (Hilfsarbeiterin), belonged. Working at a rate of 50%, the applicant would therefore have had a salary of CHF 24,293 if she had been able to continue working without any difficulty (Valideneinkommen). The Office estimated that, given her disability, the salary which the applicant would actually be able to earn in a suitable occupation would be CHF 21,863 (Invalideneinkommen). It therefore assessed the applicant’s degree of disability in respect of the “paid employment” component at 10%. 16. On 14 September 2006 the applicant appealed against that decision. Relying on Article 14 of the Convention, read in conjunction with Article 8, the applicant argued that (i) the method applied discriminated against the less well-off, as those persons who could afford not to do paid work were classified simply as housewives and could therefore be recognised as having a higher degree of disability and thus qualify more easily for a benefit; (ii) the way in which the degree of disability was calculated did not take sufficient account of the interplay (Wechselwirkungen) between the “household” and “paid employment” components; (iii) in reality, even if she only worked half-time, her degree of disability for the purposes of performing household tasks would increase well beyond 44% as a result. 17. In support of her appeal the applicant submitted a medical report issued by Dr Ch.A.S. on 28 September 2006, in which the latter stated in substance that, in view of her state of health, the applicant could not engage in paid work on a half-time basis in the same way as someone without a disability, and that if she had to take up paid employment, her capacity to take care of the household and of her children would drop to around 10%. 18. In a judgment of 30 November 2007 the Insurance Court of the Canton of St Gallen allowed the applicant’s appeal in part. In a departure from the case-law of the Federal Court ..., it considered that the usual application of the combined method should be disregarded in favour of an “improved” version. In the court’s view, the basis for calculation should be the level of activity which the applicant might reasonably have resumed after the birth of her twins if she had not had health problems. The Insurance Court found that the “household” component of the combined method, as that method was applied in the Federal Court’s caselaw, did not take sufficient account of the person’s disability. According to the court, the Office had not taken into consideration the fact that the applicant could only take care of the household on a half-time basis, and had incorrectly calculated her incapacity for work on the basis of a twelve-hour working day. Instead of taking as a basis the household assessment – which, in the Insurance Court’s view, should be applicable only to individuals who were engaged full-time in caring for the household – the Office should have examined the applicant’s actual capacity to perform household tasks, which had been established by a doctor. The court also criticised the Office for not examining whether, if she had been in good health, the applicant would have been able to engage in paid work after the birth of her children. In particular, it noted that the report drawn up following the household assessment gave scant information as to the work entailed for the applicant in caring for her children (Betreuungsaufwand) and whether or not any possibilities existed for entrusting part of their care to other persons. As these factors had not been taken into consideration by the Office, the applicant’s degree of disability had been established on the basis of an incomplete set of facts. The court also considered it unlikely that the applicant would have worked only halftime if she had been in good health, given her husband’s modest salary and what she could reasonably expect to earn as a hairdresser or auxiliary worker. The household assessment therefore appeared to be deficient in that respect also. Consequently, the Insurance Court remitted the case to the Office for further investigation. 19. The Office lodged an appeal against the Insurance Court judgment. 20. In a judgment of 28 July 2008 (9C_49/2008) the Federal Court allowed the Office’s appeal, finding that the applicant was not eligible for a benefit. In its reasoning the Federal Court began by describing the context in which it viewed the case, stating that (i) the aim of disability insurance was to provide cover for insured persons against the risk of becoming unable, for medical reasons, to carry on a paid occupation or perform household tasks which they had actually been able to carry out before becoming disabled and would still be able to perform if the event triggering the disability had not occurred; (ii) the aim was not to provide compensation in respect of activities which the insured persons would never have carried out even if they had remained in good health; (iii) this approach was designed to prevent situations in which, for instance, individuals who were well-off and had never previously worked could be recognised as having a disability if they developed health problems, even though they would probably never have worked had they remained in good health. 21. Accordingly, the Federal Court considered that the combined method was not discriminatory. It found as follows: “3.4 ... It is true that the combined method, as applied by the [Federal] Court in its settled case-law, may result in a loss of benefit where the insured person is more than likely – generally on account of the birth of a child – to cease paid employment, at least on a full-time basis. However, it is not the disability that [then] causes the loss of income; many people in good health also suffer a loss of income when they reduce their hours or stop working. The criticism of the combined method is directed at the fact that individuals (mostly women) suffer a drop in earnings when they reduce their working hours after having children. Nevertheless, this sociological reality is not the result of factors linked to the person’s health and should not therefore be covered by the disability insurance scheme. It does not give rise to any discrimination or other breach of the European Convention on Human Rights.” Nevertheless, the Federal Court conceded that the interplay between the “household” and “paid employment” aspects was not taken sufficiently into account in the combined method. With regard to the applicant, however, it found (i) that the aggravation of her health problems as a result of her paid work should not be regarded as reducing her capacity to perform household tasks by more than 15%; (ii) that, accordingly, even taking the interplay in question into account, the applicant’s degree of disability did not reach the 40% minimum required in order to qualify for a benefit: 50 % (paid employment): 0.5 x 10 % = 5 % 50 % (household tasks): 0.5 x (44 + 15 %) = 29.5 % Total = 34.5 % The argument that her husband was unemployed, which was raised by the applicant for the first time before the Federal Court, was rejected on the grounds that it had not been relied upon in the court below and was not substantiated. However, the Federal Court granted the applicant legal aid in view of her lack of means. ... | 1 |
test | 001-163473 | ENG | GBR | ADMISSIBILITY | 2,016 | CUSACK 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 Patrick Joseph Cusack, is a British national, who was born in 1938 and lives in Harrow. 2 3. In December 1969 the applicant’s parents purchased a property, including a building and a forecourt, in Harrow. Around the same time the applicant began to practise as a solicitor from that property. He, and those visiting his office, have used the forecourt for parking their cars ever since. In order to park a car there, it is necessary to cross the pavement situated between the property and the adjacent road. 4. In the late 1990s or early 2000s the local authority constructed an uncontrolled pedestrian crossing outside the property. Such a crossing consists of a raised pedestrian refuge in the middle of the road and lowered pavements, with studded surfaces, on both sides of the road. The applicant, and other individuals visiting his office, continued to park vehicles on the forecourt. 5. In April 2008 a local authority employee, accompanied by a police constable, visited the property to request the applicant to remove the cars on the forecourt. Correspondence between the applicant and the local authority ensued, in the course of which the local authority indicated that it was considering erecting bollards to prevent vehicles accessing the forecourt. 6. If the bollards were erected, the applicant and his clients would no longer be able to use the forecourt as a car park. On 17 March 2009 the applicant therefore lodged a claim for injunctive relief in the County Court seeking to prevent the local authority from erecting bollards. On 13 August 2009 the local authority informed him that it proposed to rely on section 80 of the Highways Act 1980 (“the Act” – see paragraph 29 below) which provides in relevant part that a highway authority, in the present case a function performed by the local authority, may erect fences or posts to prevent access to highways which it maintains (see paragraphs 28 to 30 below, for information about what comprises a highway). It does not require the payment of compensation to anyone who suffers damage in the exercise of the relevant powers. 7. On 9 September 2009 the local authority lodged its defence to the claim, which confirmed its reliance on section 80 of the Act. In the alternative it relied on section 66 of the Act (see paragraph 28 below), which provides that a highway authority may provide such “highway furniture” as it thinks necessary to safeguard individuals using the highway. Section 66 requires the payment of compensation to anyone who suffers damage in the exercise of the relevant powers. 8. On 4 March 2010 the County Court refused the applicant’s claim. It decided that he had been exercising a frontager’s right in order to park on his forecourt. Frontagers’ rights included a right for the owner of a property adjacent to the highway to access that highway from any part of his property. It found that the local authority was able to interfere with that right under section 80 of the Act. The court decided that it did not have jurisdiction either to “read-down” legislation so as to ensure its compatibility with the Convention, under the Human Rights Act 1998, or to make a declaration of incompatibility (see paragraph 31 below) and therefore it did not consider the applicant’s human rights arguments. 9. The applicant appealed to the High Court. On 7 March 2011 the High Court rejected the applicant’s appeal. It found that section 80 of the Act applied to his case, none of the exceptions in that section were relevant and there were no other reasons to prevent the local authority from relying on it. 10. The court accepted that the local authority could also have acted under section 66 of the Act. However, it decided, applying Ching Garage Ltd v. Chingford Corporation (see paragraph 33 below), that the local authority owed a duty to its taxpayers to select a provision not requiring compensation if one was available. The local authority could therefore not be criticised for selecting section 80 of the Act. The court rejected the applicant’s argument that section 80 of the Act should be interpreted under section 3 of the Human Rights Act 1998 (see paragraph 31 below) either to exclude its application to private rights of access generally, or frontagers’ rights in particular, or to include a right to compensation. It was Parliament’s clear intention that private rights of access, including frontagers’ rights, were to be included and it was a necessary inference that it had intended to exclude compensation. 11. The High Court decided that Article 1 of Protocol No. 1 could not have assisted the applicant in any event. It observed that the applicant would not lose his property. He would lose only one aspect of his right of access to that property, namely vehicular access. His case fell under the second paragraph of Article 1 of Protocol No. 1, that is the control of property. It found, pursuant to Baner v. Sweden, no. 11763/85, Commission decision of 9 March 1989, Decisions and Reports 60-A, p. 128, that a property owner was not guaranteed compensation in such circumstances and observed that the Commission had decided that a measure affecting and re-defining rights of property owners would not normally be considered an expropriation even if some aspects of the right were interfered with or even taken away. The court found that a wide margin of appreciation was accorded to Parliament as regards the second paragraph of Article 1 of Protocol No. 1. 12. The High Court found that Parliament had “plainly” decided that section 80 of the Act was necessary in the general interest. It would not be possible to predict the wide variety of factual situations with which a highway authority might be confronted and in which it might think it necessary to take action in the public interest. There was nothing wrong in granting highway authorities a wide power to obstruct access to highways should the need arise. Parliament would have known that actions taken by a highway authority would be amenable to judicial review if they were “Wednesbury unreasonable”, that is to say if the decision to take them was so unreasonable that no reasonable authority could ever have come to it. 13. It found that sections of the pavement where the kerb had been lowered so as to be at the level of the highway, and for which planning permission had been granted, were specifically excluded from the operation of section 80 of the Act. A proposal to interfere with such a crossing under section 80 would almost certainly be found to be unreasonable. 14. The High Court then considered the applicant’s circumstances, stating in relevant part: “53 ... Public safety considerations do in my view warrant the course that [the local authority] proposes to take. I have taken into account the points made by Mr Cusack in this regard, including that there have not yet been any accidents; but in my view there is a significant risk of an accident in future if access to the front of No. 66 remains as it is. Station Road is a very busy single carriageway road. In my view it would require skilled experienced driving to mount and drive over the kerb onto the forecourt, or reverse back over the pavement down the kerb and back onto the road surface while avoiding the nearby island. I am happy to accept that Mr Cusack has acquired the necessary skills, but there is no guarantee that all of his staff and clients using the forecourt will have done so. In my view there is a danger of road traffic accidents involving vehicles if things remain as they are. There is also the obvious risk of damage to the pavement, creating tripping hazards. Moreover, given the character of the road and the proximity of the pedestrian road crossing, it is reasonable to suppose that the pavement in the immediate vicinity of No. 66 is quite widely used by pedestrians, and in my view the present arrangements present a potential danger to them as well. The fact that a dropped kerb constructed specifically to allow pedestrians to walk onto and from the road crossing is being used by cars as a means of easier access to the forecourt of No.66 serves to emphasise the point. ... 55 ... In my view there is no substance in the assertion that [the local authority] had not referred to road safety issues before proceedings were commenced or that they are acting in bad faith by doing so now. 56 I turn to the argument that there is no evidence to support [the local authority’s] road safety arguments. In my view there is in fact some evidence ..., but this is principally a matter for my judgment based on the evidence which is available of the layout and traffic conditions of Station Road itself, the forecourt to no. 66, and the pedestrian crossing and dropped kerb associated with it ...” 15. The applicant appealed to the Court of Appeal. On 7 December 2011 the Court of Appeal overturned the High Court’s judgment. Lord Justice Lewison, with whom the other judges agreed, applied the maxim generalia specialibus non derogant, which he interpreted to mean that where there is a general provision and a more specific provision, and a course of action could potentially fall within both, the court will usually interpret the general provision as not covering matters covered by the specific provision. Lord Justice Lewison decided that the local authority should have relied on section 16. As regards the applicant’s argument that the local authority could have imposed conditions on the exercise of his right of access, Lord Justice Lewison decided that the imposition of conditions would not have resulted in a satisfactory solution because the local authority had formed the view that all vehicle movements into and out of the applicant’s forecourt posed a risk to pedestrians. Furthermore, the applicant had not raised the argument in the courts below. 17. In case he was wrong about section 66 of the Act, Lord Justice Lewison also considered the applicant’s Article 1 of Protocol No. 1 submissions. He decided that the case should be considered as a control of use. He noted that this Court afforded national legislatures a wide margin of appreciation when a case involved a control of use and would respect their decision unless it was manifestly arbitrary or unreasonable. He observed that, pursuant to J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, ECHR 2007III, no presumption existed that compensation had to be paid and its absence did not mean that a decision was disproportionate. The transfer of a title to land from one individual to another in that case was far more draconian than the applicant being prevented from accessing his property by vehicle. He concluded that section 80 was compatible with Article 1 of Protocol No. 1. If that was the case, the local authority’s reliance on that section had also been compatible with Article 1 of Protocol No. 1. 18. The local authority appealed the decision of the Court of Appeal to the Supreme Court. On 19 June 2013 the Supreme Court overturned the Court of Appeal’s decision. 19. Lord Carnwath, with whom the other justices of the Supreme Court agreed, decided that the maxim generalia specialibus non derogant did not apply because neither section 80 nor section 66 of the Act could be regarded as more specific or less general than the other. Whilst section 66 of the Act was directed towards a specific purpose, that is “safeguarding persons using the highway”, the powers available under it were defined in relatively wide terms. Although section 80 of the Act did not explicitly mention safety as a purpose, it was implicit that the section must be used for purposes related to those of the Act, one of which was safety of the highway. The powers in that section were expressed in narrower terms and related specifically to the prevention of access to an existing or future highway. 20. Lord Carnwath found that various other provisions illustrated the wide array of overlapping powers available under the Act but otherwise were not relevant. He also noted that in Ching Garage Ltd (see paragraph 33 below) the local authority had, as in the applicant’s case, been confused as to the appropriate statutory source of its power to act but that the House of Lords had not been concerned by the overlap of statutory provisions. 21. Lord Carnwath analysed the legislative history of both section 66 and section 80 of the Act. He acknowledged that the Act was a consolidating statute, that is to say it brought under one Act of Parliament existing provisions whose origins lay in various other Acts of Parliament. In relation to section 80, he traced its history back to a provision enacted in 1935 and noted that that provision had been amended in 1947 to prohibit its use where it would obstruct any means of access for which planning permission had been granted. Accordingly, section 80 continued to provide specific protection for means of access formed since 1947 if authorised by planning permission. He also considered the relevance of planning immunity, that is to say when breaches of domestic planning controls become immune from enforcement by the domestic authorities. Whilst doing so, he noted that the applicant’s use of his property as an office and the laying out of a means of access to that property had both been breaches of planning controls but that both breaches had long since become immune from enforcement. However, Parliament had subsequently approved legislative proposals that did not give breaches which had become immune from enforcement the same status as developments for which planning permission had been granted. The protection provided in section 80 of the Act to means of access authorised by planning permission did not extend to use of accesses which had been created in violation of the planning laws but which had become immune. As regards the applicant’s concern that the powers provided under section 80 might be abused, for example to avoid protections under section 66 of the Act, an individual could bring a judicial review claim. Lord Carnwath concluded that the local authority had been entitled to rely on section 80 of the Act. 22. He then proceeded to consider the implications of Article 1 of Protocol No. 1. He rejected the applicant’s argument that removal of vehicular access would amount to a deprivation of a possession. He found that it was clearly a control of property. He set out the necessary steps in the assessment of compliance with Article 1 of Protocol No. 1, namely: “(i) whether there was an interference with the peaceful enjoyment of ‘possessions’; (ii) whether the interference was ‘in the general interest’; (iii) whether the interference was ‘provided for by law’; and (iv) proportionality of the interference.” 23. He found that Article 1 of Protocol No. 1 did not impose any general requirement of compensation in cases falling within the second paragraph of that Article. He noted that in J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom, cited above, § 83, the Court had decided that absence of compensation might nevertheless be relevant to the issue of proportionality. 24. He decided that proportionality required a broad judgment as to what was a fair balance and was not confined to irrationality or “Wednesbury unreasonableness”. The issue was not whether the council’s action was an abuse of its powers but whether a fair balance had been struck between the competing general and individual interests. The applicant had not challenged the compatibility of section 80 with Article 1 of Protocol No. 1 as such. As a result, the mere fact that another statutory route with compensation was available did not lead to a conclusion that relying on section 80 of the Act was disproportionate. 25. Lord Carnwath continued: “49. The question must however be answered principally by reference to the balance drawn by section 80 itself, allowing for the wide margin of appreciation allowed to the national authorities. It is in my view significant that the legislature did not adopt my recommendation that all immune uses and operations should be treated generally as though subject to planning permission, apart from the three cases specified in the section. There may be room for argument as to where the line in section 80 should have been drawn, but the compatibility of the section is not the issue. Given the availability of the power as a legitimate means of controlling use of a private access in the public interest, its use in the present circumstances was in my view neither an abuse of the council’s powers nor outside the boundaries of the discretion allowed by the Convention.” 26. Lord Neuberger agreed with Lord Carnwath’s statement in Ching Garage Ltd (see paragraph 33 below) that if a local authority could do what they wanted to do without paying compensation they should take that approach, Lord Neuberger decided that where two separate statutory provisions applied the local authority could rely on either provision provided that it was reasonable to do so in all the circumstances. 27. In relation to Article 1 of Protocol No. 1, Lord Neuberger agreed that there had been no deprivation of property. Because the disadvantage suffered by the applicant fell within control of possessions, he could not see how the local authority’s reliance on section 80 could violate Article 1 of Protocol No. 1. He noted that there was no general right to compensation where control of possessions was in issue but accepted that that was not decisive for proportionality. It was also necessary to consider whether the exceptions to section 80, and the fact that the applicant’s case did not fall within them, were arbitrary. He decided that the distinction between cases subject to planning permission and those immune from enforcement was narrow but because it definitely existed, and had long done so, was not arbitrary. Article 1 of Protocol No. 1 did not require that where the State sought to control property and was able to do so under two different provisions it should choose the one which provided for compensation, except if special facts existed which require it. 28. Section 66 of the Highways Act 1980, which falls under the crossheading “Safety Provisions”, sets out the duties of the highway authority in relation to the provision of footways and the powers available to it to maintain in a footway such “furniture” as they consider necessary to safeguard pedestrians. In relevant part it states: “(2) A highway authority may provide and maintain in a highway maintainable at the public expense by them which consists of or comprises a carriageway, such raised paving, pillars, walls, rails or fences as they think necessary for the purpose of safeguarding persons using the highway. ... (8) A highway authority or council shall pay compensation to any person who sustains damage by reason of the execution by them of works under subsection (2) or (3) above.” 29. Section 80, which falls under cross-heading, “Fences and Boundaries”, provides that a highway authority may erect fences or posts to prevent access to a highway. In relevant part it reads: “(1) Subject to the provisions of this section, a highway authority may erect and maintain fences or posts for the purpose of preventing access to— (a) a highway maintainable at the public expense by them, ... (3) The powers conferred by this section shall not be exercised so as to— (a) interfere with a fence or gate required for the purpose of agriculture; or (b) obstruct a public right of way; or (c) obstruct any means of access for the construction, formation or laying out of which planning permission has been granted under Part III of the Town and Country Planning Act 1990 ... or (d) obstruct any means of access which was constructed, formed or laid out before 1st July 1948 ...” 30. Section 329 of the Act provides inter alia that “carriageway” means a way constituting or comprised in a highway over which the public has a right of way for the passage of vehicles and that “footway” means a way comprised in a highway which also comprises a carriageway and over which the public have a right of way on foot only. 31. Section 3 of the Human Rights Act 1998 (“the Human Rights Act”) provides: “(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights ...” Section 4 of the Human Rights Act provides: “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.” 32. Section 6(1) of the Human Rights Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. 33. In Ching Garage Ltd v Chingford Corporation [1961] 1 All E.R. 671, the House of Lords was asked whether a highway authority had the power to obstruct a means of access from a privately owned garage to a road junction. Lord Radcliffe stated that: “If they can do what they want to without having to pay compensation, they have no business to use public funds in paying over money to an objector who is not entitled to it.” | 0 |
test | 001-184281 | ENG | ROU | COMMITTEE | 2,018 | CASE OF NIȚĂ v. ROMANIA | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) | Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque | 4. The applicant was born in 1970 and lives in Râmnicu-Vâlcea. 5. In 1993 the applicant married N.E.C. and their daughter M.A. was born in 2001. Following the couple’s divorce on 28 February 2007, the mother was granted physical custody of the child. As the parents had reached an agreement regulating the applicant’s contact with the child, the visiting rights were not discussed in the divorce proceedings. 6. Until December 2009, the applicant had unhindered opportunity to talk to his daughter on the phone and to take her to his home whenever he wished. After that date, N.E.C. stopped answering the phone and the only possibility for the applicant to see his daughter was outside her school. 7. Consequently, on 7 July 2011 the applicant instituted contact proceedings before the Râmnicu-Vâlcea District Court, as a result of which on 16 December 2011 a visiting schedule was established in favour of the applicant. 8. N.E.C. appealed, arguing that the applicant had never been prevented from visiting the child but that since the divorce he had not visited her more than once every three months and had not contributed in any way to the continuous medical treatment she required. During the proceedings the parties reached an agreement about the visiting schedule. On 17 May 2012 the County Court questioned M.A. and noted: “The parents divorced about 5-6 years ago and after that she often used to visit her father up until about 6 months ago, when her mother stopped allowing her to answer the phone, because the father only wanted to make [N.E.C.] angry. Since then, she can no longer answer the phone and her father has not seen her. From her mother’s accounts, she understood that her father was a bad person who caused trouble to [N.E.C.] as they both had businesses selling the same products, and her father had taken away her mother’s employees by promising them higher salaries. She does not wish to visit her father because that would make her mother upset and she does not want that because she cares a lot about her mother. Her mother does not wish her to visit her father, who has a new family and a small child. (...).” 9. In a decision of 15 June 2012 (hereinafter “the contact order”) the County Court took note of the parents’ agreement as to the visiting schedule and considered that it was beneficial for the child to maintain contact with her father. 10. N.E.C. lodged an appeal on points of law, unhappy that the child would have to go to the applicant’s home. In a final decision of 19 November 2012 the Piteşti Court of Appeal upheld the County Court’s decision. It noted that the child was used to going to her father’s home and continuing this habit would help consolidate their relationship. It found: “The consolidation of the relationship between the applicant and the minor by means of complying with the County Court’s decision is even more necessary since, from the report of the interview with the minor, it appears that the minor had been visiting her father after the parents’ separation until about six months before the hearing, [when the mother] stopped allowing her to talk on the phone with the applicant; from the same report it appears that the minor does not wish to see her father in order not to upset her mother. In these circumstances, the [County Court] has correctly decided that the visits should take place in the applicant’s home, in order to allow the normal parental ties to develop and to avoid the possibility of inculcating feelings of hatred towards the father, which would run counter to the child’s harmonious psychological development.” 11. As N.E.C. continued to oppose any contact with the child, on 13 March 2013 the applicant contacted a court bailiff and started enforcement proceedings. On 23 March 2013 the application was allowed by the Brezoi District Court, which ordered enforcement of the contact order. 12. The bailiff invited N.E.C. to bring the child to his office on 5 April 2013, which she failed to do. On 3 May and 7 June 2013 and on 7 March 2014 he went to her home together with the applicant, the police and representatives of the Vâlcea Directorate General on Social Welfare and Child Protection (“the child protection authority”). On each occasion they found no one there, despite prior notification. 13. On 11 April 2013, at the applicant’s request, the bailiff lodged with the Brezoi District Court an application for penalties against N.E.C., under the provisions of Article 905 of the Code of Civil Procedure (“the CCP”, see paragraph 27 below). N.E.C. reiterated that, as M.A. was refusing to see her father, she would not agree that the child be taken against her will to the applicant’s home. On 20 June 2013 the court ordered N.E.C. to pay a fine of 500 Romanian Lei (RON – approximately 115 euros (EUR) at the relevant time) for each day of non-enforcement of the contact order, starting from the date on which the District Court decision was notified to her. The District Court reiterated the findings of the report of 17 May 2012 concerning the interview with M.A. (see paragraph 8 above) and found that the mother was responsible for the failure to enforce the visiting schedule. It found: “From the same report it appears that, although the minor likes to visit her father, she does not wish to do so any more because she does not want to upset her mother. The court concludes that the non-enforcement of the obligation set down in the contact order is caused exclusively by the debtor and there is no evidence to show that the minor herself would refuse in absolute terms contact with the creditor or that she would manifest aversion towards him.” 14. On 21 August 2013, acting on an application lodged by the bailiff under Article 188 § 2 of the CCP (see paragraph 27 below), the Brezoi District Court fined N.E.C. RON 100 (approximately EUR 22 at the relevant time) for obstructing the enforcement proceedings. 15. Meanwhile, on 18 August 2014 the bailiff noted that N.E.C. was continuing to reject the visiting schedule and concluded that the enforcement had become objectively impossible. Consequently he terminated the enforcement proceedings and lodged a criminal complaint against N.E.C. (see paragraph 20 below) under the provisions of Article 911 § 2 of the CCP (see paragraph 28 below). 16. The applicant objected to the stay of execution and asked the Brezoi District Court to compel the bailiff to continue the enforcement proceedings. He also argued that the provisions of the CCP allowing the bailiff to stay the execution while a criminal complaint was ongoing were unconstitutional in so far as it allowed the debtor − in bad faith − to stay or obliterate the enforcement efforts and to manipulate the child’s behaviour to the point of rejecting the non-custodial parent. He did not otherwise contest the findings of the bailiff’s report. On 22 May 2015 the Brezoi District Court dismissed his objection on the grounds that it had become objectively impossible to enforce the court order and that the bailiff had correctly stayed the enforcement once the prosecutor’s office had taken over the case. On 22 March 2016 the appeal lodged by the applicant was also dismissed as unfounded by the Vâlcea County Court. The latter found that the bailiff had complied with all the obligations arising from Articles 909-913 of the CCP (see paragraph 28 below). Later on, in its decision no. 299 of 12 May 2016, the Constitutional Court dismissed the constitutional complaint raised by the applicant (see paragraph 30 below). 17. On 4 March 2014 the applicant asked the District Court to quantify the amount of damages to which he was entitled under Article 905 § 4 of the CCP (see paragraph 27 below). N.E.C. maintained that it had been the applicant who had distanced himself from the child and that due to the break-up of the father-daughter relationship it was impossible to comply with the contact order at that time. On 25 September 2014 the District Court ordered N.E.C. to pay the applicant RON 9,200 (approximately EUR 2,100 at the relevant time). The latter could not obtain this payment as N.E.C. had sold all her possessions and had not declared any fixed income. 18. On 6 January 2015 the applicant asked the child protection authority to seek a court order for three months of psychological counselling for his daughter, reiterating that N.E.C. was alienating M.A. from her father. On 9 January 2015 the child protection authority refused to intervene since the bailiff had not recorded in his report that the child had opposed the enforcement “in absolute terms”, as required by Article 912 of the CCP (see paragraph 28 below). 19. On 14 January 2015 the applicant reiterated his request for psychological counselling. In addition, he asked that the relationship between the parties involved be monitored for a period of six months and that N.E.C. be fined for the delays in executing the contact order. The child protection authority’s inspectors met N.E.C. on four occasions: on 29 January, 11 March, 23 April, and 17 July 2015. Subsequently, in a letter of 22 July 2015 the authority informed the applicant that N.E.C. had not allowed them to talk with the child about her relationship with her father. The child protection authority advised as follows: “In view of the fact that for the past four years your relationship with your daughter has only consisted of a few isolated encounters, we consider that reinitiating the fatherdaughter relationship must be done gradually, bearing in mind the child’s wishes, her school programme and her extra-curricular activities. (...) For the time being, [N.E.C.] considers that it is not in the child’s best interest to reinitiate the father-daughter relationship and refuses to lend her support to this end. In the light of the above, we consider that it is important for the child that both you and your former spouse try to improve your communication and that you change your current attitude (complaints before courts and other institutions, enforcement proceedings (...)), in order to overcome the conflicts and to offer your daughter the support and reassurance that she requires at this age.” 20. Acting upon the criminal complaint lodged by the bailiff on 18 August 2014 (see paragraph 15 above), the prosecutor’s office attached to the Vâlcea County Court started an investigation into the commission of the offence of a breach of a court judgment (nerespectare a hotărârii judecătoreşti). 21. On 4 March 2015 the prosecutor changed the legal classification of the alleged facts into the offence of a breach of custody measures (nerespectarea măsurilor privind încredinţarea minorului). 22. On 4 January 2016 the prosecutor interviewed M.A. in the presence of N.E.C.’s lawyer and a psychologist from the child protection authority. M.A. refused to re-establish contact with her father and expressed her belief that her father was only trying to hurt her mother through his actions because of their work-related conflicts, of which she had been partially informed by her mother. She said: “I believe that by his actions my father wants, in reality, to hurt my mother. Yesterday I discussed this subject with my mother, as I had done once before, and she told me that she did not wish to trouble me, as those were work-related problems created by my father. It might be that through his actions my father wants to hurt my mother. I know some aspects, but not too much about the conflict between my parents concerning my mother’s work. It is possible that my father started these actions because he loves me and wishes to know me. I no longer want to know him or to have personal relations with him. (...) I think it would be best if my father left me alone. (...) It is true that my mother has never said bad things about my father, but she has never encouraged me to have personal ties with him either.” 23. On 22 April 2016, acting at the prosecutor’s request, the psychologists from the child protection authority assessed M.A. They noted in their report that M.A. refused to see her father because she had been disappointed by the manner in which he had tried to get in touch with her, namely via the authorities, thereby causing upset to her mother. The expert did not consider that counselling for M.A. would be beneficial for re-establishing the relationship between the applicant and his daughter. He recommended psychological support for the parents. 24. On 24 February 2017 the prosecutor decided to terminate the investigation on the grounds that it had not been established beyond any doubt that N.E.C. had acted in such a manner as to repeatedly prevent the applicant from seeing his daughter and that the lack of communication was caused by M.A.’s unequivocal wish and will. 25. On 18 April 2017, in response to a complaint lodged by the applicant, the prosecutor in chief of the prosecutor’s office upheld the above decision. However, in a decision of 3 October 2017 the Râmnicu Vâlcea District Court allowed a complaint lodged by the applicant, quashed the prosecutor’s decision and sent the case back to the prosecutor’s office for further examination. The court considered that, because of the mother’s influence over her, the child might suffer from parent alienation syndrome which constituted a form of psychological abuse; in order to clarify this aspect, further psychological investigation was needed. 26. In 2016, the applicant resumed contact with his former spouse, through the offices of a new bailiff. He tried to visit her home in order to see the child on 6 May, 3 June, 1 July, and 5 August 2016. On 6 April 2017 he asked N.E.C.’s opinion as to what would be the appropriate method for him to re-establish contact with his daughter. | 0 |
test | 001-174380 | ENG | RUS | COMMITTEE | 2,017 | CASE OF STADNIK v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicant was born in 1976. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 1994, the applicant was convicted of theft and given a two-year custodial sentence conditional on one year’s probation. However, the court applied a general amnesty act and the applicant’s conviction, including the probation period, was spent with immediate effect. 7. Less than one year later, on 29 May 1995, a different court convicted the applicant of aggravated robbery and sentenced him to six years’ imprisonment. Considering that the applicant had breached the terms of his probation by committing a new offence, the court ordered the suspended sentence to be activated and increased the total length of the sentence by one year. 8. On 11 December 2001 the Presidium of the Omsk Regional Court acknowledged that the 1995 judgment had been unlawful in the part relating to the increase of the final sentence in connection with the prior conviction that had already been spent. The length of the sentence was varied to six years’ imprisonment, calculated from 2 January 1995 which was the date of the applicant’s arrest. Given that the applicant had already spent more than six years in detention, the Presidium ordered his immediate release. 9. The applicant unsuccessfully tried several avenues for claiming compensation for his unlawful detention during eleven months and fourteen days. 10. He sought first to exercise the “right to rehabilitation” under the Code of Criminal Procedure (see paragraph 13 below). On 5 August 2003 the Oktyabrskiy District Court in Omsk rejected his application, pointing out that the “right to rehabilitation” only accrued to those who have been acquitted or exonerated which was not the applicant’s case. The applicant did not appeal against that decision. 11. The applicant also tried to initiate criminal proceedings against Judge B. who had given the judgment of 29 May 1995. His criminal-law complaint was rejected on the ground that the limitation period had expired. 12. Finally, the applicant filed a civil claim for compensation under the tort provisions of the Civil Code (see paragraph 14 below). On 20 December 2005 the Tsentralniy District Court in Omsk rejected his claim, finding that paragraph 1 of Article 1070 did not apply because the applicant had been found guilty rather than acquitted and that the special condition of applicability of paragraph 2 – the criminal conviction of the judge – was not fulfilled. On 14 June 2006 the Omsk Regional Court rejected an appeal against that decision. | 1 |
test | 001-183118 | ENG | HRV | CHAMBER | 2,018 | CASE OF JUREŠA v. CROATIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1977 and lives in Osijek. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 6 November 2000, in inheritance proceedings following the applicant’s grandmother’s death, the applicant’s relative, M.J., and the applicant’s father were declared the beneficiaries in respect of a house, which was not registered in the land register, by a decision of the Zabok Municipal Court (Općinski sud u Zaboku). 8. On 18 October 2007 M.J. brought a civil action against the applicant in the Zabok Municipal Court (Općinski sud u Zaboku) asking that court to recognise his ownership of a share of half of an inherited piece of property and to order the applicant to allow him to register his ownership in the land register. He set the value of the dispute (vrijednost predmeta spora) at 110,000 Croatian kunas (HRK). 9. In the proceedings before the first-instance court, on 5 November 2007 the applicant contested the value of the dispute and suggested that it be set at HRK 300,000. 10. At the hearing held on 23 January 2008 the applicant, inter alia, withdrew her objection to the value of the dispute as indicated by the claimant, and stated that she agreed with it. 11. In its judgment of 25 April 2008 the Zabok Municipal Court accepted M.J.’s claim. 12. The applicant lodged an appeal with the Zlatar County Court (Županijski sud u Zlataru) and on 16 September 2009 the second-instance court dismissed her appeal as ill-founded, upholding the first-instance judgment. 13. On 24 November 2009 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the lower courts’ judgments. 14. On 27 May 2010 the Supreme Court declared the applicant’s appeal on points of law inadmissible ratione valoris. It interpreted M.J.’s civil action as being composed of two separate claims arising from different factual and legal bases - the first one for recognition of ownership, and the second for obtaining an order securing the registration of his ownership in the land register (hereinafter “the issuance of a clausula intabulandi”). The Supreme Court thus halved the value of the dispute and held that the value of each claim did not reach the necessary ratione valoris threshold of HRK 100,001 (approximately 13,300 euros (EUR)) for an appeal on points of law to be admissible. The relevant part of this decision reads as follows: “The claimant in his civil action indicated the value of the dispute as HRK 110,000. Pursuant to section 37(2) of the CPA [(Civil Procedure Act)], if the claims in the civil action arise from a variety of grounds, or different claimants put forward individual claims or individual claims are raised against several defendants, the value of the dispute must be established in accordance with the value of each individual claim. In the instant case the claimant made two non-monetary claims, one concerning property rights - for recognition of ownership -, and a claim under the law on obligations - for the issuance of a clausula intabulandi , namely for obtaining an order securing registration of his ownership in the land register. Therefore, the value of the dispute has to be established in relation to the value of the dispute of each claim. Consequently, the value of the dispute of each claim ... has to be established by dividing the indicated unique value of the dispute by [these] two [claims]. Given that the claimant indicated the [unique] value of the dispute as HRK 110,000, and that this amount should be divided by [the number of the claims], the value of the dispute of each claim does not exceed the amount of 100,000. It follows that an appeal on points of law by the defendant is inadmissible.” 15. The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that M.J.’s action had two aspects which could not be separated, and that the Supreme Court’s decision finding that the case concerned two separate claims had therefore been arbitrary and had violated her right to a fair hearing, in particular her right of access to the Supreme Court, as guaranteed under Article 29 of the Constitution. 16. On 17 February 2011 the Constitutional Court dismissed the applicant’s constitutional complaint. It held that the applicant in her constitutional complaint “did not demonstrate that the Supreme Court had failed to respect the provisions of the Constitution concerning human rights and fundamental freedoms, namely that it had applied relevant law in an arbitrary manner” and that therefore “the present case did not raise a constitutional issue.” Its decision was served on the applicant’s representative on 3 March 2011. | 0 |
test | 001-167820 | ENG | HRV | ADMISSIBILITY | 2,016 | BILOGLAV v. CROATIA | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković | 1. The applicant, Mr Leonardo Biloglav, is a Croatian national who was born in 1965 and lives in Zagreb. He was represented before the Court by Mr M. Čaržavec, a lawyer practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was a soldier in the Croatian Army. He was wounded in the war in 1991 but continued to serve in the army until he was honourably discharged in 2013. 5. On 11 September 2012 a medical board of the Ministry of Defence (Ministarstvo obrane Republike Hrvatske) declared the applicant medically unfit for military service. The decision was based on his medical records. He was informed that he could appeal against that decision to the Ministry’s second-instance medical board. 6. The applicant appealed. On 3 October 2012 he was summoned to appear before the second-instance medical board and to submit further medical documentation concerning his condition. The applicant failed to appear and did not provide any further medical documentation. 7. On 10 January 2013 the second-instance medical board dismissed his appeal as unfounded, on the grounds that given his failure to appear before the board and in view of the available documentation, there was no reason to call into question the existing medical assessment of his condition. The applicant was informed that he could challenge the Ministry’s decision by lodging an administrative action with the Administrative Court, which, however, did not have suspensive effect. 8. The decisions of the Ministry’s medical board became final and enforceable on 21 January 2013. 9. On 11 February 2013 the applicant lodged an administrative action with the Zagreb Administrative Court (Upravni sud u Zagrebu) challenging the decision of the Ministry’s medical board of 10 January 2013. He argued that the Ministry’s assessment of his fitness for military service was flawed and unfounded. He contended in particular that he had never been properly summoned or examined by the Ministry’s medical board and that their findings contradicted the fact that he had carried out all his military assignments efficiently and had even participated in a mission to Afghanistan. 10. On 13 September 2013, after hearing the parties’ arguments and examining further submissions from them, the Zagreb Administrative Court declared the applicant’s administrative action inadmissible on the grounds that the Ministry’s medical board was not a public authority against whose decisions an administrative action could be lodged, and that the applicant could only lodge an action against the Ministry’s decision to terminate his employment in the army. 11. The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, in particular, that he did not have access to court concerning the assessment of his fitness for military service. 12. On 30 October 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. That decision was served on the applicant on 18 November 2013. 13. On 12 February 2013 the Ministry’s department for human resources terminated the applicant’s service in the army by an honourable discharge. It ordered that the discharge would take effect on 20 February 2013. The Ministry relied on section 189(1) of the Military Service Act, providing that military service would terminate ex lege thirty days after the decision of a medical board declaring a soldier medically unfit for military service became final (see paragraph 19 below). 14. The decision on the applicant’s discharge from the army was confirmed on appeal by a second-instance administrative body within the Ministry on 21 June 2013. 15. On 30 July 2013 the applicant lodged an administrative action in the Zagreb Administrative Court challenging the decision on the termination of his military service. He contended in particular that he had not been able to participate effectively in the proceedings before the Ministry’s medical board concerning the assessment of his fitness for military service. He also reiterated his complaints concerning the alleged failures of the medical board to properly assess his medical condition. 16. During the proceedings, the Zagreb Administrative Court heard the applicant and obtained the parties’ further written submissions on the matter of the termination of the applicant’s employment in the army. Concerning the applicant’s allegations of inadequacy of the assessment of his fitness for military service, the Administrative Court heard B.B., who had presided over the Ministry’s first-instance medical board. B.B. was also questioned by the applicant and his representative. He explained the methodology and procedures applied for the assessment of the applicant’s fitness for military service, and stressed that the available medical documentation in the applicant’s case had suggested that he was not medically fit for military service. 17. On 5 December 2014 the Zagreb Administrative Court dismissed the applicant’s administrative action. It examined in detail the manner in which the applicant’s unfitness for military service had been established and found that there was nothing in the procedure or findings of the medical board which would raise doubt as to the necessity of the applicant’s discharge from the army. 18. The relevant Military Service Act (Zakon o službi u oružanim snagama Republike Hrvatske, Official Gazette nos. 33/2002, 58/2002, 175/2003, 136/2004, 76/2007, 88/2009 and 124/2009) provided in section 188(1) that the military service could terminate only in the following circumstances: (1) ex lege under the conditions provided for in that Act; (2) on the basis of a personal request; (3) by the expiry of a term for which an individual was recruited; (4) by dismissal; (5) by the expiry of the probationary period; and (6) on the basis of an agreement. 19. In section 189(1) the Military Service Act provided: “(1) Military service shall terminate ex lege ... by a decision of a medical board declaring [a soldier] medically unfit for military service – thirty days after the decision becomes final.” 20. The Government provided several decisions of the Administrative Courts declaring inadmissible administrative actions against decisions of the Ministry’s medical board on the assessment of appellants’ fitness for military service (Us-894/2002-5 of 20 November 2002; Us-3009/2003-6 of 8 March 2007; UsI-3938/12-8 of 28 March 2013 and UsI-709/13-4 of 3 March 2014). 21. These decisions of the Administrative Courts are based on findings that the Ministry’s medical board was not a public authority against whose decisions an administrative action could be lodged, and that further administrative actions could be lodged against any further administrative decisions based on the findings of the medical board. 22. The parties also provided several decisions of the Administrative Courts upholding the findings of the Ministry’s medical board in administrative proceedings against decisions terminating appellants’ employment in the army (Us-2993/2002-5 of 20 November 2002; UsI-2619/13-10 of 25 February 2014 and UsI-2543/13-7 of 28 May 2014). | 0 |
test | 001-144905 | ENG | LVA | ADMISSIBILITY | 2,014 | BĒRZIŅŠ v. LATVIA | 4 | Inadmissible | Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicant, Mr Pēteris Bērziņš, is a Latvian national, who was born in 1964 and lives in Kārsavas novads. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. On 25 October 1999 criminal proceedings were initiated against the applicant on suspicion of abuse of office. 4. Between 25 October and 15 December 1999 the applicant was in pre-trial custody. On 15 December 1999 he was placed under police supervision. 5. On 14 December 1999 the prosecution issued an order suspending the applicant from office on the grounds that if he remained in office he could obstruct the investigation. The order stated that the applicant would be suspended during the pre-trial investigation. 6. On 21 December 2001 the pre-trial investigation was completed and the case was transferred to a court. 7. The applicant and twelve other co-accused were brought before the Ludza District Court (Ludzas rajona tiesa) for the main trial. 8. According to the indictment, on 25 October 1999 the applicant, in his official capacity as customs officer and acting in concert with other individuals, had processed documents for a vehicle that had not crossed the State border and had not exported goods. 9. On 24 November 2011 the applicant was found guilty of aggravated abuse of office under section 318(2) of the Criminal Law, in the wording in force until 1 January 2005. 10. The District Court considered that the applicant had committed a serious crime with one aggravating circumstance and no mitigating circumstances. It took into consideration the applicant’s good character references and the fact that he had no previous convictions. Referring to section 5(2) of the Criminal Law (lex mitior) and section 491 of that Law (determination of sentence where the right to completion of criminal proceedings within a reasonable time has not been respected), the District Court considered it appropriate to impose a non-custodial sentence, namely, compulsory work, without any ancillary penalty. 11. In that regard, relying on section 14 of the Criminal Procedure Law (right to completion of criminal proceedings within a reasonable time), the District Court reasoned as follows: “Completion of criminal proceedings within a reasonable time is related to the volume of a case, its legal complexity, number of procedural actions [and] the attitude on the part of the persons involved in the proceedings towards their obligations, and [is related to] other objective circumstances. The criminal proceedings under consideration were commenced on 25 October 1999 [and] on 14 January 2002 the criminal case was received for adjudication by the court. [T]he adjudication of the case was restarted anew before three compositions of the trial bench [and] twenty-one court hearings were scheduled for the adjudication of the case. The reasons for postponement of the [proceedings] were not related to the non-performance of procedural obligations on the part of the accused [including the applicant]. In such circumstances [and] taking into account the volume of the case file and [its] legal complexity, with the accused charged in relation to nine incidents, [the court] finds that the right of the accused to completion of criminal proceedings within a reasonable time has not been respected.” 12. In determining sentence the District Court cited the wording of section 491(1)1) of the Criminal Law (see paragraph 20 below). It stated that a court’s finding of non-compliance with the reasonable-time guarantee could be taken into account in mitigating sentence. The District Court’s further considerations read as follows: “The court deems it impossible to apply ... a fine, because neither the prosecution nor defence have submitted evidence on the financial situation of the accused that would enable the court to assess their ability to pay the fine immediately or their possibility to gain income [in the future] enabling them to pay the fine imposed within the time-frame foreseen by the law. In determining the sentence ... the court takes into consideration that ... a very long time has passed since the commission of the crime, the positive character references of the accused and the fact that [the applicant] cares for a child who is a Category 1 disabled ... and that there are no mitigating circumstances ... with respect to [the applicant] there is one aggravating circumstance...” 13. Accordingly, the District Court found that it could determine the sentence within or close to the minimum penalty prescribed by law. 14. Applying section 491 of the Criminal Law, the District Court imposed a sentence of forty hours’ compulsory work on the applicant. It credited to the applicant’s sentence the time he had spent in pre-trial custody between 25 October and 15 December 1999. As a result, the court concluded that the applicant had already served his sentence in full. 15. On 7 May 2012 the Latgale Regional Court (Latgales apgabaltiesa) upheld the applicant’s conviction on appeal. 16. The Regional Court noted that the sentence which had been imposed on the applicant complied with the Criminal Law and there were no grounds to consider that it was disproportionate. 17. On 2 November 2012 the Senate of the Supreme Court (Augstākās tiesas Senāts) refused to consider an appeal on points of law lodged by the applicant. 18. That decision was final. 19. The applicant learnt of the decision of the Senate of the Supreme Court on 12 November 2012, when it was communicated to him. 20. The domestic law and practice has been cited in Trūps v. Latvia ((dec.), no. 58497/08, §§ 16-33, 20 November 2012). For the purposes of the present case it is appropriate to set out the wording of section 491(1)1) of the Criminal Law: “(1) If a court finds that a person’s right to completion of criminal proceedings within a reasonable time has not been respected, it may: 1) take this circumstance into account in determining sentence and mitigate the sentence; ...” 21. Under section 318(2) of the Criminal Law, an abuse of office that had caused grave consequences or had been committed with the intent to obtain a material benefit was punishable by a custodial sentence of up to eight years or a fine of up to one hundred and fifty minimum monthly salaries. On 1 January 2005 amendments to section 318(2) entered into force. The punishment of compulsory work and the ancillary penalty of prohibition on exercising certain duties for a period of one year to five years were added. | 0 |
test | 001-160430 | ENG | AZE | CHAMBER | 2,016 | CASE OF IBRAHIMOV AND OTHERS v. AZERBAIJAN | 3 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);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 applicants were born in 1988, 1989 and 1977 respectively. The first and third applicants live in Baku, and the second applicant lives in Khirdalan. 6. The youth group Committee for Protection of Rights of Young Political Prisoners (“Gənc Siyasi Məhbusların Hüquqlarını Müdafiə Komitəsi”) decided to hold a demonstration at around 5.30 p.m. on 22 May 2011 at the Seaside Boulevard in Baku. They did not notify their plan to the relevant authority, the Baku City Executive Authority (the BCEA). 7. According to the applicants, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants, a group of ten to twelve persons, were demanding the release of young persons arrested during some previous demonstrations. 8. The applicants attended the demonstration, but shortly after it had begun the police started to disperse it. According to the applicants, as soon as they noticed the police approaching they attempted to run away and leave the place of the demonstration but police officers followed and caught them. All three applicants were arrested by police officers V.I. and R.G. at around 5.30 p.m. and were taken to police station No. 39 of the Sabail District Police Office. 9. Police officers V.I. and R.G. stated the following in a report (raport) submitted to a superior police officer: “... at around 5.30 p.m. at the Seaside Boulevard ... a group of young persons attempted to hold an unauthorised [demonstration] by shouting out loud, and disturbed people. When we wanted to calm down those persons they ignored us. ... We ... brought them to police station no. 39. ...” 10. According to the applicants, they were questioned at the police station. 11. Between 6.15 p.m. and 6.30 p.m. on the day of the arrest, “administrative-offence reports” (inzibati xəta haqqında protokol) were issued by police officer T.R. in respect of all three applicants. The reports stated that at 5.30 p.m. on 22 May 2011, by deliberately failing to comply with the lawful order of the police, the applicants had committed an administrative offence under Article 310 of the Code of Administrative Offences (“the CAO”). 12. All three applicants refused to sign the respective administrative-offence reports, which contained pre-printed texts declaring that “[the arrested person] was familiarised with the report” and “the rights and obligations under Articles 371, 372, 374, 377, 379 and 410.4 of the CAO of the Republic of Azerbaijan were explained”. 13. Subsequently, police officer T.R. prepared “administrative-arrest reports” (inzibati qaydada tutma haqqında protokol) with respect to the first and second applicants. 14. According to those administrative-arrest reports, copies of which were submitted to the Court by the Government, the first and second applicants had been subjected to administrative arrest at 7 p.m. on 22 May 2011. The reports also stated that the applicants had been released on the same date, without specifying the time of the alleged releases, and contained signatures of the first and second applicants. However, all three applicants maintained that they had been kept in police custody overnight. 15. According to the applicants, they were never served with copies of the administrative-offence reports or with other documents in their case files. They were not given access to a lawyer after the arrest or while they were kept in police custody. 16. On 23 May 2011, the day after his arrest, the first applicant, Mr Agasif Ibrahimov, was brought before the Sabail District Court. 17. According to the applicant, the hearing, which began at 12.40 p.m., was very brief and members of the public, including human rights defenders and journalists, were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public. 18. The applicant was not represented by any lawyer. According to the applicant, he was not given an opportunity to hire a lawyer of his own choice. 19. The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer. 20. The only witness questioned during the court hearing was police officer R.G., who testified as follows: “At around 5.30 p.m. on 22 May 2011 ... a group of persons attempted to hold an unauthorised [demonstration] by shouting out loud, and disturbed people. When we wanted to calm down those persons, among them [the applicant], they disobeyed a lawful police order. Then we ... brought them to police station no. 39 where administrative-offence reports were issued in their respect. One of them was [the applicant].”. 21. The court found that the applicant had failed to stop participating in the unauthorised demonstration. The court convicted him under Article 310.1 of the CAO and sentenced him to seven days’ “administrative” detention. 22. The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction was in violation of his rights because the demonstration in which he had participated had been peaceful. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He requested the Baku Court of Appeal to quash the first-instance court’s decision. 23. The applicant was represented before the Baku Court of Appeal by a lawyer of his own choice. 24. On 31 May 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct. 25. The Court of Appeal also noted that at the first-instance court hearing the applicant had refused the assistance of a State-funded lawyer and had decided to defend himself in person. 26. On 23 May 2011, the day after his arrest, the second applicant, Mr Emin Farhadi, was brought before the Sabail District Court. 27. According to the applicant, the hearing, which began at 12.30 p.m., was very brief and members of the public were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public. 28. The applicant was not represented by any lawyer. According to the applicant, he was not given an opportunity to hire a lawyer of his own choice. According to the transcript of the court hearing, he refused the assistance of a State-funded lawyer and decided to defend himself in person. 29. The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer and that he had participated in the demonstration as an observer. 30. The only witness questioned during the court hearing was police officer R.G. The statement that he gave against the second applicant, Mr Emin Farhadi, was similar to his statement against the first applicant, Mr Agasif Ibrahimov (see paragraph 20 above). 31. The court found that the applicant had failed to stop participating in the unauthorised demonstration. The court convicted him under Article 310.1 of the CAO and sentenced him to eight days’ “administrative” detention. 32. The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction was in violation of his rights because the demonstration in which he had participated had been peaceful. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He requested the Baku Court of Appeal to quash the first-instance court’s decision. 33. The applicant was represented before the Baku Court of Appeal by a lawyer of his own choice. 34. On 31 May 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct. 35. On 23 May 2011, the day after his arrest, the third applicant, Mr Jamil Hajiyev, was brought before the Sabail District Court. 36. According to the applicant, the hearing, which began at 12.30 p.m., was very brief and members of the public were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public. 37. The applicant was not represented by any lawyer. According to the applicant, he was not given an opportunity to hire a lawyer of his own choice and he refused the assistance of a State-funded lawyer because he believed that such assistance would be of a formalistic nature. 38. The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer. He further emphasised that he and other participants of the demonstration had protested peacefully, and that they had been holding photos of arrested young persons, without uttering any slogans. The applicant also stated that he had run away as soon as he saw the police approaching and had boarded a taxi, and that police officers had stopped that taxi and had forced him out. 39. The only witness questioned during the court hearing was police officer R.G. The statement that he gave against the third applicant, Mr Jamil Hajiyev, was similar to his statement against the first applicant, Mr Agasif Ibrahimov (see paragraph 20 above). R.G. also confirmed that Mr Jamil Hajiyev had tried to escape by taxi, and that the police officers had stopped that taxi. 40. The court found that the applicant had failed to stop participating in the unauthorised demonstration. The court convicted him under Article 310.1 of the CAO and sentenced him to seven days’ “administrative” detention. 41. The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction was in violation of his rights because the demonstration in which he had participated had been peaceful. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He requested the Baku Court of Appeal to quash the first-instance court’s decision. 42. The applicant was represented before the Baku Court of Appeal by a lawyer of his own choice. 43. On 31 May 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct. | 1 |
test | 001-146393 | ENG | HRV | CHAMBER | 2,014 | CASE OF IVINOVIĆ v. CROATIA | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award | Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 6. The applicant was born in 1946 and lives in Zagreb. She has suffered since her early childhood from cerebral palsy and uses a wheel chair. In 1968 she was deprived of her legal capacity on account of “her physical illness and intellectual underdevelopment”. On 10 July 1979 her legal capacity was fully restored by a ruling of the Zagreb Municipal Court. 7. On 12 November 2009 the Pešćenica Social Welfare Centre (hereinafter “the Centre”) asked the Zagreb Municipal Court to institute proceedings with a view to partially depriving the applicant of her legal capacity in order to prevent her from disposing of her assets. They relied on a previous ruling of 1968 by the same court by which the applicant had been deprived of her legal capacity (see the preceding paragraph). They further asserted that the applicant had been suffering from “grave bodily damage” (velika tjelesna oštećenja) since early childhood, as she had been diagnosed with cerebral palsy and various chronic illnesses such as diabetes, high blood pressure and defective eyesight. 8. They further asserted, relying on a statement given by the applicant’s son at the Centre and a report by the Centre’s social worker, that the applicant’s condition had worsened after she had undergone an operation on her head on 9 September 2008. Since then she had suffered from personality changes, manifested in managing her money in an irrational manner, such as by not paying the monthly instalments for the purchase of her flat, electricity, water and other bills, and by purchasing mobile telephone cards instead of food. This could have led to the applicant’s eviction from the flat she occupied, as she had already received a final warning that a civil action in that respect was to be lodged. 9. The Centre’s request was supported by evidence, such as an electricity bill of 27,625.70 Croatian kunas (HRK) dated 30 March 2009, a copy of a final demand for payment of monthly instalments for the purchase of the applicant’s flat, with the debt amounting to HRK 8,290.25 as at 7 March 2009, a notice that the water supply for the applicant’s flat would be stopped as of 25 May 2009 on account of non-payment of a debt in the amount of HRK 4,447.42, and a debt recovery notice for the amount of HRK 451.70 payable to Croatian Radio and Television (HRT). 10. On 28 October 2009 the Centre appointed its employee, Ms J.T., as the applicant’s legal guardian in the proceedings before the Zagreb Municipal Court. In the proceedings before that court the guardian gave her full consent to the Centre’s application. The applicant was represented by a lawyer of her own choosing. 11. The Municipal Court heard the applicant on 24 March 2010 and established that: “The respondent was found at her address in a wheelchair. She gave very meaningful answers; [she] stressed that she acted autonomously, kept her flat tidy, prepared her meals and was provided with help by her son and a tenant. She moved about independently in her wheelchair and did her own shopping, [and] paid [her own] bills, which gave rise to difficulties during winter. She stated that in the period when she had underwent a head surgery in September [2008], she had been late with paying her utility bills ... She did not agree with the proceedings [being brought] and considered that she did not need a guardian. She stressed that she regularly took [her] prescribed medication ... It is to be noted that the respondent was presentable and her home was tidy.” 12. In her written submissions the applicant explained that during her hospitalisation she had empowered her son to retrieve money from her bank account and pay the utility bills, which he had not done but had instead taken the money for himself. She asked that her son be examined by the court. 13. A psychiatric report commissioned for the purposes of the proceedings, drawn up on 12 April 2010 by D.P. and G.M., in so far as relevant reads as follows: “A psychiatric examination of the respondent was carried out on 3 April 2010 at her home ... She stated that she had completed elementary school and had been an average pupil, that she had studied law for one year and knew all about the law. To me she said: ‘You know how it was when you operated on me.’ She is dissatisfied with the court proceedings [being brought]: ‘I dislike the Pešćenica [Social Welfare Centre] because they attempted to send me to [a home in] Novi Marof.’ And in respect of her son she said: ‘I am sorry when someone blackmails him’. She stated that she had been paying all her bills and that ‘I previously had a huge negative [balance], [because] I had to pay for the hospital’. She stated that she had a lot of acquaintances who were her former lodgers, whom she saw regularly when out and about in her wheelchair in her neighbourhood and ‘they all respect me’. Upon a direct question she denied having any mental problems. Psychological status: conscious, contact easily established, uncertain about time, in other respects well oriented. Has a wide and viscous (viskozni) thought process, with loss of determining tendency. Interacts without distance. In thought content confabulatory with a paranoid position, projections and infantile explanation. Basic disposition is elevated. Intellectually – memory functions are primarily insufficient at the LMR level, additionally compromised with psychoorganic type. Lacks insight into her condition. Marija Ivinović suffers from MB. Little, parapresis spast., monoparesis ext. sup. spast. sin., LMR, condition after brain haemorrhage, condition after stroke, condition after meningoencephalitis, with a lack of insight into her condition [and] the need for and purpose of treatment. Owing to this, she is not able to entirely look after her personal needs, rights and interests. Also, because of her state of health and lack of insight she may jeopardise the rights and interests of others.” 14. On 19 May 2010 the applicant lodged written submissions whereby she objected to the psychiatrists’ findings, stating that it was not clear how they had concluded that she was unable to properly dispose of her money, given that the debts referred to had been incurred by her son when she had been hospitalised. 15. At a hearing held on 21 October 2010 the psychiatrists gave the following opinion evidence: “We entirely endorse our written report of 3 April 2010 and to the objections filed by the respondent we would state the following: on the basis of the enclosed medical records, social history and our own examination we have established that the respondent suffers from Morbus Littlee. She also suffers from triparesis with preserved functions of her right hand, mild mental retardation, and conditions following a brain haemorrhage and meningoencephalitis. Her intellectual capabilities are, owing to the above-mentioned [conditions], additionally compromised on the psychoorganic type. During the interview we noticed confabulations in the content of her thoughts, that is to say fabricated content, a paranoid position, in particular as regards her close family and the employees of the social welfare centre, and infantile explanation. The respondent lacks insight into her condition. All this led us [to conclude] that the respondent does not possess sufficient intellectual capacity to adequately protect her own rights and interests, and because of her lack of insight she might also jeopardise the rights and interests of others. We therefore consider that the application for deprivation of the respondent’s legal capacity as regards disposing of her money and assets and as regards taking decisions about her medical treatment, is appropriate.” 16. On 21 October 2010 the Zagreb Municipal Court partially deprived the applicant of her legal capacity, thereby stopping her from disposing of her money and other assets and from making independent decisions concerning her medical treatment. The ruling relied exclusively on the opinion given by the two psychiatrists and extensively repeated their findings stated in their written report and their oral evidence given at the hearing of 21 October 2010. 17. The applicant lodged an appeal on 11 November 2010, in which she argued that partially depriving her of her legal capacity solely on the basis of the psychiatric report had not been justified, because the psychiatrists had lacked knowledge of how she spent her money and how she disposed of her assets. She argued that she had purchased the flat where she lived herself and there was no danger that she would give it up. The assertion that she was paranoid as regards her close family members was not correct. She had had troubled relations with her son at times because he had moved into her flat with his girlfriend and her daughter and had had an interest in having her removed from the flat and placed in a home. Therefore, she had successfully sought their eviction from her flat. She had also changed her bank and her son no longer had authority to use her credit card. She lived a peaceful life, and was a member of the Association of Disabled Persons with Cerebral Palsy and Poliomyelitis. The court conducting the proceedings had had the chance to establish that normal communication with her was possible and that she lived in a tidy flat. The Centre had not proven the need for her to be partially deprived of her legal capacity. Only a bookkeeping expert could have established the facts concerning her debts. 18. The applicant’s appeal was dismissed by the Bjelovar County Court on 26 January 2012, which again relied extensively on the psychiatric report. The appeal court added that the applicant had been hospitalised between 9 and 25 September 2008 and 23 October and 13 November 2008, whereas the unpaid bills (see paragraph 9 above) were dated 9 April 2009 (electricity bill of HRK 27,625.70), 18 March 2009 (HRK 8,290.25 in monthly instalments for the purchase of the flat) and 22 May 2009 (water bill of HRK 4,477.42), which indicated that the debts concerned a much longer period than the applicant’s hospitalisation. 19. The applicant then lodged a constitutional complaint, in which she repeated the arguments from her appeal, stressing that the debts in question had been incurred during the period in which she had been hospitalised and her son had had her bank card. Instead of paying her bills he had used the money from her account for his own needs. She added that only one of the psychiatrists who had drawn up the report on her mental state had interviewed her. She also stressed that it was entirely unclear what rights and interests of others she might jeopardise. The complaint was dismissed by the Constitutional Court on 13 June 2012. | 1 |
test | 001-180306 | ENG | TUR | CHAMBER | 2,018 | CASE OF GÜÇ v. TURKEY | 3 | No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström | 5. The applicant was born in 1960 and lives in Giresun. 6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. On 8 February 2006 the applicant, a caretaker employed at the Public Education Centre (Halk Eğitim Merkezi) in Giresun, was taken into police custody on suspicion of child molestation, after being caught in an allegedly indecent position with X., a 9-year-old pupil at the primary school located in the same building as the Public Education Centre. 8. On 8 March 2006 the Espiye Public Prosecutor lodged an indictment with the Espiye Criminal Court of First Instance, charging the applicant with the sexual abuse, sexual assault and unlawful detention of a minor, pursuant to Articles 103 § 1 (a), 109 § 3 (f) (5) and 102 §§ 1 and 3 (a) of the Turkish Criminal Code. 9. During the ensuing criminal proceedings, the Espiye Criminal Court of First Instance heard statements from the applicant, the parents of X., the psychiatrist who had interviewed the girl after the incident, and the teachers and personnel at the Public Education Centre and the neighbouring primary school, including the teacher E.U., who was the sole eyewitness to the incident. Denying the allegations against him, the applicant stated that on the morning in question, he had entered one of the classrooms in the building for cleaning purposes, where the alleged victim was already present with another pupil. While he was busy cleaning, X. had asked for a simit (a type of bread roll) and had attempted to hug him, as a result of which gesture he had lost his balance and fallen onto a desk with X. It was at that point that the teacher E.U. had entered the classroom. 10. E.U., on the other hand, testified before the trial court that as she opened the door of the classroom in question, she saw the applicant sitting on a desk in the dark with his legs apart, hugging X. who was sitting on his lap, facing the blackboard. Within a matter of seconds, upon seeing her, the applicant threw X. away in panic. E.U. stated that while she had never witnessed similar behaviour by the applicant before, the scene she had seen on the day in question looked suspicious. She also confirmed that there was another pupil in the classroom at the time. 11. S.P., who worked in the same primary school and was also the uncle of X.’s mother, asserted before the court that although he had never witnessed any suspicious behaviour on the part of the applicant, he had heard a colleague, İ.K., say that the applicant had engaged in indecent behaviour towards some pupils at the school where he had worked previously. However, İ.K., who was the deputy principal at the applicant’s previous school, denied giving S.P. any such information concerning the applicant or hearing any adverse rumours or complaints about him for that matter. 12. X.’s father alleged that according to the information he had received from M.Ö. and M.K. ‒ respectively an employee and the manager at the Public Education Centre ‒ the applicant had been dismissed from his previous job for similar behaviour. M.Ö. denied this allegation, but M.K. confirmed that the above-mentioned S.P. had given him this information, although he himself had never witnessed any indecent behaviour by the applicant. 13. Another witness, B.A., confirmed that the applicant had apologised to him following the incident. There is no information in the case-file as to the exact content of this apology. 14. The psychiatrist who interviewed X. after the incident reported that the latter lacked the mental capacity to comprehend and recount what might have taken place on the relevant day and, for that reason, it would be futile, and possibly harmful for her well-being, for the trial court to question her. 15. On the basis of all the evidence before it, on 18 December 2008 the Espiye Criminal Court of First Instance ordered the applicant’s acquittal, holding that it was not possible to establish beyond all reasonable doubt that he had committed the sexual acts forming the basis of the charge. The court observed that the statements of the sole eyewitness were contradictory in parts and that they included her personal interpretation of what had actually taken place on the relevant morning. It added that, despite E.U.’s allegation that the applicant had thrown X. to one side upon her entry in the room, no wounds or bruises had been detected on the girl’s body. 16. On 13 January 2009 the acquittal judgment became final in the absence of any appeal. 17. Parallel to the criminal proceedings pending before the Espiye Criminal Court of First Instance, a disciplinary investigation was conducted against the applicant in relation to allegations of harassment. 18. The disciplinary investigation was carried out by two inspectors who took statements from X.’s father, from M.K., the manager of the Public Education Centre, from B.A., a teacher at the primary school, from A.T., the principal of the primary school, and from the applicant, who was being held in detention in relation to the criminal proceedings at the time. The inspectors also took two separate statements from the sole eyewitness, the teacher E.U., under oath and took into account a report from the guidance counsellors of the primary school regarding the psychological and physical development of the minor X. That report, dated 7 January 2003, described the physical and social developmental attributes of the girl as weak and very timid, respectively. The medical diagnosis was stated as autism. 19. The investigation report which was issued at the end of the disciplinary investigation on 3 April 2006 found the allegations of harassment against the applicant to be well-founded and recommended the dismissal of the applicant from the civil service on the grounds that his conduct constituted “shameful and disgraceful conduct incompatible with the civil service” as provided under section 125 § E (g) of Law no. 657. In coming to this conclusion, the inspectors noted the following: “...The eyewitness, E.U., reported having seen the applicant in a position which made her suspect that he had been in the course of sexually harassing the student, [X.] She explained that the following facts ‒ in particular, the room being dark as a result of the lights having been turned off, the applicant sitting at the desk right next to the door with his legs open with the minor on his lap and the desk in front having been pushed further away, coupled with the fact that he had been caressing the body of the minor and holding her tight around her waist ‒ had led her to conclude that [the applicant] had been attempting to harass her. [She stated that] what she witnessed did not look like a regular display of affection and when she had entered the room, he had thrown the child off him in panic. In his statement, [the applicant] stated that the minor had attempted to hug him while he was cleaning the floor and that, as a result of that gesture he had lost his balance and the minor had sat on his lap. He added that when E.U. entered the room, he was trying to get the minor off him. [The applicant’s] statement that he had fallen onto a desk with the minor as a result of the latter trying to hug him corroborates E.U.’s version of the events. However, the part about him having lost his balance as a result of the minor’s attempt to hug him would be quite unusual given the physical attributes of the minor in question. Moreover, the consistent statements of E.U., taken under oath, who as a mother and an educator seems to have suffered a great deal of emotional distress from these events, give the impression that the allegations against the applicant are well-founded. [...] The event has shocked and distressed the town community as well as the school... The severity of this event is further exacerbated by the fact that the student in question is a mentally disabled child, ... unable to express or defend herself...This is a disgraceful thing for a civil servant. [The event] has also given rise to a criminal investigation instigated by the Espiye Public Prosecutor’s office where [the applicant], is accused of sexually abusing a minor who was born on [...] February 1993 and who was unable to defend herself due to her mental incapacity, and to the remanding in custody of [the applicant]. ...we are of the opinion that [the applicant] has harassed [X.] and that this conduct, which is proven, falls under situations provided for in section 125 § E (g) of law no. 657, that is to say, “shameful and disgraceful conduct that is incompatible with the civil service”. 20. On 25 May 2006 the applicant submitted his written defence to the Supreme Disciplinary Council of the Ministry of Education (“the Supreme Disciplinary Council”). He requested at the outset that the investigation be postponed until the criminal proceedings against him on the same allegations had been finalised. Furthermore, denying all accusations, he challenged E.U.’s statements as being wholly subjective and distorting the facts, bearing particularly in mind that the whole incident had taken place within a matter of seconds, as she too had acknowledged, which did not realistically allow her to make the detailed observations that she had recounted to the authorities. He added that it was not logical that he would have committed the alleged act in the presence of another pupil in the classroom right before the start of the classes. 21. On 5 July 2006 the Supreme Disciplinary Council issued the following decision in relation to the applicant, in so far as relevant: “Upon examination of the file ... and of the defence statement duly taken [from the applicant], the following has been decided: On the basis of the information and documents in the file, the veracity of the act [harassment of X.] attributed to the applicant has been conclusively established... For this reason, it has been decided unanimously to accept the proposal to dismiss the applicant from the civil service in accordance with section 125 § E (g) of the Law no. 657 [on Civil Servants], ...” 22. On 30 October 2006 the applicant objected to the Supreme Disciplinary Council’s decision before the Ordu Administrative Court. The applicant argued that his dismissal on the basis of a finding that he had committed the act of sexual harassment of a minor, which is a criminal act, while criminal proceedings were still pending in respect of that self-same allegation violated his right to the presumption of innocence. 23. On 3 July 2007 the Ordu Administrative Court dismissed the applicant’s objection on the following grounds: “The case concerns the dismissal of the [applicant,], who worked as a caretaker, on the basis of the allegations that he harassed [X.] on the premises of the primary school. Section 125 E-g of Law no. 657 provides that shameful and disgraceful conduct that is incompatible with the civil service requires dismissal from the civil service. Section 131 of the same Law also provides that the commencement of criminal proceedings against a civil servant shall not suspend disciplinary proceedings arising out of the same facts and that acquittal or conviction in the criminal proceedings shall not prevent the execution of disciplinary sanctions.” [...] Although it has been argued that the sole eyewitness’s version of the events cannot be taken as a conclusive basis on which to deem that the applicant committed the act imputed to him, on the basis of the evidence in the case-file and in consideration of the position in which the applicant was found in the classroom, as well as the fact that the classroom’s door had been shut and the lights had been turned off and the room was therefore dark as it was also very early in the morning and it was raining [...], having further regard to the statement by the principal of the neighbouring primary school, A.T., during the criminal proceedings acknowledging that the applicant had apologised to him after the incident and that he had also heard rumours about the applicant’s similar indecent behaviour in other schools where he had previously worked, the applicant’s argument has not been found to be credible. 24. This statement by A.T., referred to in the Ordu Administrative Court judgment, is not mentioned in the judgment of the Espiye Criminal Court of First Instance. 25. On 28 July 2007 the applicant appealed against the decision of the Ordu Administrative Court, which he considered to be based on groundless accusations. He argued firstly that, in circumstances where the act forming the basis of criminal and disciplinary investigations was one and the same, the criminal proceedings would be better placed to shed light on the circumstances and to arrive at an accurate conclusion regarding the facts than would be those of the disciplinary bodies, whose findings would be at best hypothetical. He pointed out that the administrative court had ignored the presence of another pupil in the classroom at the time of the incident, as well as his explanation that the door had been shut as a result of the draught from the open window. The administrative court had similarly overlooked his service record (sicil dosyası) and the fact that it made no mention of any allegations of misconduct in his previous post, which would be unimaginable if he had really been dismissed from that post for indecent behaviour. He also referred in this connection to the statements of İ.K., the deputy principal at the previous school, denying any such allegations of indecent behaviour. 26. On 17 November 2009 the Supreme Administrative Court dismissed the applicant’s appeal, endorsing the first-instance court’s reasoning and not mentioning the acquittal judgment which had been delivered by the Espiye Criminal Court of First Instance in the meantime. 27. On 7 July 2010 the Supreme Administrative Court rejected the applicant’s rectification request. 28. On 27 May 2013, that is to say after lodging his complaint with the Court, the applicant brought proceedings against the Ministry of Education and requested the reopening of the proceedings concerning his dismissal from the civil service. The applicant relied on the Espiye Criminal Court of First Instance’s final judgment of 18 December 2008, which acquitted him of the charges of sexual abuse, sexual assault and the unlawful detention of a minor, and argued before the Ordu Administrative Court that his right to the presumption of innocence had been violated in the course of the dismissal proceedings because he had been dismissed on the basis of allegations that he had committed offences in respect of which the criminal proceedings had not yet become final. On 24 October 2013, the Ordu Administrative Court dismissed the case, holding that the arguments put forward by the applicant for reopening proceedings did not fall within the exhaustive list of permissible grounds for this extraordinary remedy. 29. In their observations on 14 March 2014, the Government informed the Court that appeal proceedings were pending before the Supreme Administrative Court. | 0 |
test | 001-156074 | ENG | ROU | CHAMBER | 2,015 | CASE OF SAMACHIȘĂ v. ROMANIA | 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) | Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1956 and lives in Fălticeni. 6. On 31 July 2008, the applicant was driving to Galați accompanied by C.P. in a car registered in the United States of America. At about 7 p.m. they visited a mutual friend, O.C. Shortly thereafter, all three of them returned to his car, which was parked near O.C.’s home. They found it surrounded by three police cars, approximately ten police officers and dozens of curious civilians. 7. The applicant overheard one of the police officers informing his colleagues that they had found out the car registered in America had been involved in that accident in which some pedestrians had been injured. He informed the police officers that he was the owner of the car and denied that he had been involved in an accident. 8. The police officers immediately proceeded to detain the applicant aggressively, without checking his identity papers. Police officer G.S. twisted the applicant’s arm behind his back and hit him in the legs. The blow was so powerful that the applicant had to grab one of the police car’s wing mirrors and window in order to avoid falling down. At the same time he was hit on the head and his mouth was covered because he was shouting for, amongst other things, his identity documents, which were in his car. Police officer I.V.V. also punched the applicant repeatedly. 9. Once he was in the police car, the applicant was handcuffed with his hands behind his back and two police officers, who remained unidentified, continued to hit him. He lost his dentures and eventually fainted. Police officer R.P. travelled in a separate car and police officer M.G. drove the police car in which the applicant was detained. Consequently, the applicant concluded that those two officers could not have hit him. 10. At the police station police officer C.M. removed the handcuffs from the applicant. 11. On 31 July 2008, the applicant was caught speeding and refused to stop his car at a police officer’s request. When the police eventually found his car parked in an area surrounded by blocks of flats, the applicant and his friends became very agitated and the applicant refused to show his identity papers to the police officers. He claimed that he was immune to prosecution because he was an American citizen. 12. The police officers lawfully took the applicant to the police station in order to establish his identity and to fine him for speeding. According to eyewitness statements, the police officers handcuffed the applicant in a stern, but not abusive manner. They confirmed that the applicant and his friends had been verbally abusive towards the police officers. 13. On 1 August 2008, following a request by the applicant, the Galați Forensic Medical Service produced an expert report concluding that the applicant had suffered traumatic lesions which could have been sustained on 31 July 2008. It also concluded that he had suffered an injury to the lower lip and damage to the dental prosthesis next to his upper-right canine as a result of his being struck with a solid object, possibly on the chin. In addition, the skin on the bridge of his nose and the left side of his neck had been scratched by a hard and sharp nail-like object. The bruises located on his left shoulder and below his left clavicle had resulted from being struck with a solid object. The bruise on the inside of his right arm had resulted from finger compression. Also his left forearm and the back of his left hand had been scratched with or by solid sharp objects. The report concluded that the contusion of his thorax together with the bruise below his left clavicle would require, in the absence of any complications, four to five days of medical care in order to heal. The rest of the lesions would require one to two days of medical care to heal and he might have to have the prosthesis next to his upper-right canine repaired. 14. The forensic report stated that on 31 July 2008 the emergency unit of the Galați County Hospital had diagnosed the applicant with cranio-cerebral and thorax trauma, as well as a severe thorax contusion. The thorax X-ray that had been produced on the same date did not show any broken ribs or post-traumatic lung damage. Also the dental emergency unit attached to the same hospital had diagnosed the applicant with a contusion in the chin area as a result of a blow which had damaged the dental work on his upper-right canine. It stated that the repairs to his upper-right canine could require the destruction of his fixed maxillary prosthesis. 15. On 14 August 2008 the applicant underwent an encephalography at the Baia Mare County Hospital. He was advised to rest for ten days on account of anxiety. 16. At the applicant’s request, on 18 August 2008 the Suceava Forensic Medical Service produced a forensic expert report. The report stated that according to a dental specialist, the dental-alveolar lesions suffered by the applicant as a result of the assault of 31 July 2008 would require twentyeight to thirty days of medical care to heal and repair. 17. The forensic report further stated that according to the medical documents presented by the applicant, he had been prescribed treatment with pain killers for five days for his dental-alveolar lesions. In addition, his fixed maxillary prosthesis needed to be repaired as a result of the damage caused to his upper-right canine; the report estimated that the repairs would take thirty days. 18. On 4 August 2008 the applicant brought criminal proceedings against the police officers who had been involved in the incident of 31 July 2008 for violent behaviour. In addition, he requested that those responsible for the impugned events be brought to justice. He claimed that on 31 July 2008 he had been ill-treated by police officers and had suffered physical injuries, including damage to his dental prosthesis. 19. On 11 August 2008 O.C. and A.C., friends of the applicant and C.P., submitted two statements before the Galați Police Department. O.C. stated that when the applicant had returned to his car, police officers had already been waiting for him, claiming that the car had been involved in an accident, even though there had been no visible damage to the car. Although the applicant had attempted to present his identity papers to the police, they had abusively and violently grabbed him and handcuffed him. Subsequently, the applicant had been thrown into a police car and hit until he fainted. When O.C. had attempted to find out what police station the applicant was being taken to, one of the officers had elbowed him in the chest. 20. A.C. stated that on arrival at the police station she had noticed a smell of alcohol on the breath of one of the prosecution witnesses. The witness had been collected by the police officers from the terrace of a restaurant located near the scene of the incident. He had been insulting the applicant on account of his American citizenship. He had admitted that he had been drinking and when he had started becoming aggressive, one of the officers had asked him to leave the room. 21. On 14 August 2008 the investigating authorities heard D.Z. as a witness. He stated that he had seen the applicant park his car at the scene of the incident and run together with C.P. through the blocks of flats. The police had arrived shortly afterwards and waited for the applicant to return. When the applicant had returned the officers had asked him politely to identify himself. The applicant had refused vehemently to identify himself and claimed that the police officers could not touch him because he was an American citizen. As the police officers had been unable to reason with him, they had been forced to immobilise him in order to place him in the police car, which the applicant had almost wrecked. At the same time the applicant had continued to verbally offend the officers and him. He had seen the applicant being placed in the police car; the applicant had not been beaten by the police officers. Moreover, the applicant had not been abused, either physically or verbally, by the police officers at the police station. 22. On 20 August 2008 the investigating authorities heard M.M. and I.P. as witnesses. They both stated that they had seen police officers speak to the applicant and attempt politely to identify him. The applicant had refused to give his identity by shouting that he was an American citizen. The police officers had made several more attempts to politely reason with the applicant and once that had failed they had proceeded to immobilise him and to place him in a police car. Once inside the police car, the applicant had started shouting again, at which point several other bystanders, including M.M., had started to remonstrate with him. Consequently, C.P. had started insulting them. The witnesses further stated that they had not seen the police officers hit the applicant. 23. On an unspecified date C.P. stated before the investigating authorities that on 31 July 2008 when the applicant had been driving to Galați, she had noticed a police car on the road and had seen a police officer make a signal. However, it had not been the correct signal for a motorist to stop. The applicant had not stopped the car but had continued to drive. When they had arrived in Galați she had seen another police car, but the police had not signaled the applicant to stop. 24. On 3 February 2009 the prosecutor’s office attached to the Galați District Court discontinued the criminal proceedings brought by the applicant against the police officers, on the grounds that the police officers had not committed the offences of which they had been accused or that the alleged offences were not provided for by criminal law. It held, on the basis of the police officers’ statements corroborated by the statements of M.M., I.P. and D.Z. that the applicant had repeatedly refused to show the police officers his identity papers, despite warnings that he would be taken to a police station if he failed to provide proof of his identity. The police officers had attempted to take the applicant to the police station, but he had resisted. Consequently, the officers had immobilised him. When they had attempted to place him in the police car, he had continued to resist, physically struggling and being verbally aggressive towards them. The prosecutor’s office further held that the time required for medical care could not be confused with the time required for full recovery. In this connection, it noted that in the applicant’s case the reconstruction work that was needed on his upper teeth would take thirty days. Consequently, the thirty days referred to by the forensic expert report of 18 August 2008 could not be understood to mean days of medical care within the meaning of the law. Lastly, the use of force by the police officers had not been disproportionate and had been aimed solely at immobilising him. 25. The applicant challenged the decision before the superior prosecutor attached to the Galați District Court. He argued that the witnesses who had been heard had committed perjury, probably because they had been influenced by the police. 26. By a final decision of 19 March 2009 the superior prosecutor dismissed the applicant’s challenge. He held, amongst other things, based on the eyewitness statements, that the police officers’ actions had been in response to the applicant’s aggressive and offensive behaviour. Consequently, the police officers had not overstepped their bounds. Also, the number of days of medical care required by the applicant, according to the forensic expert report produced on 18 August 2008, concerned the period required for the reconstruction of his upper dental prosthesis and not the time it would take for the dental-alveolar lesions to heal. 27. The applicant appealed against the decision before the domestic courts. He argued that the authorities had failed to investigate how the injuries attested by the forensic expert reports had been caused. 28. By a judgment of 16 October 2009 the Galați District Court dismissed the applicant’s appeal and upheld the decision of 3 February 2009. It noted, amongst other things, that according to the forensic expert report of 1 October 2008, the applicant had suffered injuries which required, depending on their severity, one to five days of medical care. In addition, according to the criminal investigation carried out in respect of the case, the police officers who had been involved in the events of 31 July 2008 were R.P., I.V.V., M.G., G.S., C.M. and T.R. as well as two Police Academy students, I.M. and A.I. According to the statements of C.M. and T.R., the applicant had been caught speeding. He had ignored T.R.’s signals to stop and had continued to drive. Consequently, C.M. and T.R. had asked their colleagues to locate and stop the applicant’s car. I.M. had made a second attempt to stop the applicant, but he had ignored the police sirens and the signals to stop. The police officers had searched for the applicant’s car and had eventually found it parked near O.C.’s home. According to the statements of R.P., M.G., I.V.V. and G.S., when the applicant returned to his car he refused the police officers’ request to show his identity papers on the grounds that he was an American citizen and was not subject to Romanian law. Even though he was informed that he had broken the law, he continued to refuse to show his identity papers to the police or to accompany them to the police station. 29. The court also noted that M.G. and R.P. stated that G.S. and I.V.V. had had to handcuff the applicant and force him into the police car, because he had refused to climb into the car and had resisted by grabbing the car door and wing mirror. G.S. and I.V.V. stated that after the applicant had been immobilised and forced into the police vehicle, during the drive to the police station he had continued to bang his head against the windows of the police car. At the police station C.M. had fined the applicant for the offence and prepared a police report, which had eventually been signed by the applicant. C.M. stated that from the time the applicant had arrived at the police station, he had had no further contact with the other police officers and had shown no signs of violence. 30. The court further noted that according to C.P.’s statement, she had seen the applicant being handcuffed and how several police officers had tried to place him in the police car, even though he had wanted to prove to them that he was an American citizen. She had not been allowed to travel with the applicant to the police station and when she had arrived there his clothes had been dirty and he had blood stains on his face. According to O.C., the applicant had been handcuffed prior to being placed in the police car and had not been asked to identify himself or told why was he being taken to a police station. O.C. had seen the applicant resisting getting into the police car, but the police officers had used force. He also contradicted the applicant’s statement that after leaving the police station they had gone to the Galați County Hospital. 31. The court also noted that D.Z. had seen the whole incident and had stated that the applicant had refused to identify himself because he was an American citizen and together with C.P. he had insulted the police officers and the other witnesses. Also the applicant had been forcefully placed in the police car because he had been behaving aggressively and had been grabbing the car door and wing mirror. D.Z.’s statement concerning the applicant’s behaviour had also been confirmed by witnesses I.P. and M.M. 32. The court held that according to the available evidence, in particular the witness statements of D.Z., G.S. and I.V.V., the applicant had had to be handcuffed because he had been behaving aggressively both prior to and after being placed in the police car as well as during the drive to the police station. The court noted that the applicant had claimed that the injuries he had suffered at the hands of the police had amounted to ill-treatment in breach of the guarantees set out in Article 3 of the European Convention on Human Rights. However, the European Court of Human Rights had been reluctant to sanction the behaviour of State agents if they had used force in order to counteract the aggressive behaviour of an arrested person. The applicant’s refusal to show the police officers his identity papers and his aggressive conduct on account of his foreign nationality had not been justified given that he had been informed that he had committed an offence and had a duty to observe the laws of the State. Consequently, the force used by the State agents did not appear excessive. 33. The applicant appealed on points of law (recurs) against the judgment. He argued that the prosecutor’s office attached to the Galați District Court had not been competent ratione materiae to carry out the criminal investigation in his case. The investigation had been superficial because not all the police officers involved in the events had been identified and because the police officers who had informed their colleagues that the applicant’s car had been involved in a car accident had not been heard. The authorities had refused to allow him to identify the individuals against whom the criminal proceedings had been brought, and witnesses C.M. and A.I. had committed perjury. At the time of the incident he had been denied the right to contact the American Embassy or a lawyer. The statements of witnesses C.P. and O.C. had been incomplete, and the first-instance court had ignored the fact that the authorities had failed to investigate how the injuries attested by the forensic expert reports had been caused. 34. By a final judgment of 18 February 2010 the Galați District Court dismissed the applicant’s appeal on points of law. It held that the prosecutor’s office attached to the Galați District Court had been competent ratione materiae to carry out the criminal investigation in the case. Also the investigation had not been superficial and the authorities had identified and heard the four police officers who had handcuffed the applicant and had driven him to the police station. Other police officers had been heard, including the two Police Academy students as well as relevant eyewitnesses who were not police officers. 35. The court also held that the investigation had focused on all the applicant’s allegations and the authorities had heard the defence witnesses requested by him, namely C.P. and O.C. The fact that the authorities had not adduced all the data considered relevant by the applicant was not unlawful, considering that a preliminary investigation could be limited in respect of both quality and quantity by its lawful purpose. Moreover, the applicant’s allegation that some of the witnesses had committed perjury had been refuted by the corroboration of their statements by other evidence. The prosecutor’s office solution remained valid given that most of the witnesses had confirmed that the applicant had refused to go to the police station and had behaved aggressively, both verbally and physically, and that none of the witnesses had confirmed that he had been hit before being placed in the police car. Consequently, the measures taken against him had not been excessive or unjustified and had met the requirements of section 31 of Law no. 218/2002 on the organisation and operation of the Romanian police force. 36. The court further held that the fact that the statements of the applicant’s friends had contradicted those of the remaining witnesses was a consequence of their friendly relations with the applicant. 37. The court considered that the authorities had correctly interpreted the available medical documents. The scratches on the left side of the applicant’s neck, on his left forearm and the back of his left hand, as well as the bruises on his left shoulder, below his left clavicle and on the inside of his right arm had been inflicted by the police officers when they had handcuffed him and placed him in the police car. Their actions had been proportionate given his strong opposition. It was clear that handcuffing and the operation of placing a person in a police vehicle, if that person physically resisted the measure, would cause injuries. The superficial nature of the injuries and the areas of the body where the bruises and scratches had been sustained merely confirmed the proportional nature of the police officers’ actions. It was clear that the applicant had exaggerated the nature of his injuries in his complaint against the officers, given that there was no evidence in the file suggesting that he had been repeatedly kicked. It appeared that the internal lip injury and the dental damage suffered by the applicant had been caused by an impact to the chin, possibly when he had been resisting his handcuffing and placement in the car. The police officers could not be considered guilty as long as the applicant had continued to behave violently in the police vehicle. He had not suffered any external lesions in the chin area which could have been caused by an impact with a solid object. 38. On 31 July 2008 the applicant was fined for speeding and for failure to stop when signaled to do so by a police officer. 39. By a final judgment of 3 May 2010 the Galați County Court dismissed on the merits the applicant’s action seeking the annulment of the speeding fine imposed on 31 July 2008 and of the suspension of his driving licence. | 1 |
test | 001-163435 | ENG | UKR | CHAMBER | 2,016 | CASE OF SARANCHOV v. UKRAINE | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Free legal assistance) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev | 5. The applicant was born in 1968 and lives in Komsomolskoye village in the Kharkiv Region. 6. In May 1999 the Pavlograd Police placed the applicant on the wanted list in connection with their criminal investigation into a violent burglary in Pavlograd and the infliction of grave bodily injuries on B.’s daughter P., who was a minor. 7. On 28 January 2000 the applicant was arrested in Russia on suspicion of having committed an unrelated crime in that country, for which he was subsequently convicted by a Russian court to a term of imprisonment that was due to end on 27 July 2004. 8. On 1 June 2004 a Russian court ordered the applicant’s retention in custody pending his extradition to Ukraine. 9. On 1 December 2004 the applicant was extradited to Ukraine and placed in a pre-trial detention facility. 10. At 5.20 p.m. on 16 January 2005 the applicant was presented with an arrest report stating that he had been arrested on suspicion of having committed aggravated burglary. He was informed of his right to have access to a lawyer as from the first interrogation. The applicant signed this report, stating that he generally disagreed with its content and that he wished to have a lawyer as from the first interrogation. 11. At the same time on the same day the applicant also signed a record confirming that he had been informed about his rights as a suspect, in particular the right to remain silent and to consult a lawyer. The applicant signed the report and added by hand in the relevant field provided on the pre-printed form that he had “refused the assistance of a defence counsel and would defend himself, not for financial reasons” (свои права буду защищать самостоятельно, не по материальным причинам). The applicant alleged that he had been compelled to sign this and subsequent waivers because the police had told him that they would not provide him with a lawyer, as he had initially requested. 12. On 17 January 2005 the applicant signed another record confirming that he had been informed about his rights as a suspect and stating ‒ using the same wording ‒ that he would defend himself. 13. On the same day he was questioned twice. He denied any involvement in the alleged offence. 14. On 25 January 2005 the applicant was formally charged with aggravated burglary. On the same day he signed a record confirming that he had been informed about his rights as an accused person and stated ‒ using the same wording ‒ that he would defend himself. 15. On 27 January 2005 he signed another such record using the same wording. On the same day the investigator announced to the applicant that the pre-trial investigation was complete and gave him the criminal case file to study. 16. On 29 January 2005 the Pavlograd Prosecutor signed the final bill of indictment, charging the applicant with aggravated burglary. The indictment contained a request that the victims, B. and P., and two other witnesses be called at the trial. 17. On 1 March 2005 the applicant stood trial before the Pavlograd Court sitting in a single judge formation, assisted by a clerk. According to the trial record, the trial unfolded as follows: 18. According to the applicant, this record of the trial was inaccurate. In particular, the applicant did not initially plead guilty. It was only after B. had departed that the judge persuaded him to plead guilty and to agree to abbreviated proceedings in exchange for a lenient sentence. 19. At the close of the trial on the same day, the court delivered its judgment. It convicted the applicant as charged and sentenced him to six and a half years’ imprisonment, to be counted from 28 January 2000, the date of his arrest in Russia, with one year and about five months therefore remaining to be served. The court relied on his guilty plea in the course of the trial and his consent to dispensing with the examination of evidence. It also stated that the applicant’s guilt was proven by a number of documents in the file. In particular it referred to the identification reports, according to which P. and another eyewitness had identified the applicant as the person who had attacked P. 20. On 4 March 2005 B. appealed, maintaining that the sentence was too lenient. She argued that the term of imprisonment should be calculated from the date of the applicant’s arrest in Ukraine rather than from the date of his arrest in Russia for an unrelated crime. She also maintained that the prosecutor had not been present at the trial and that the applicant had never repented or admitted his guilt and had behaved defiantly at the trial. 21. The applicant replied to the appeal, submitting that his guilty plea and remorse for the crime had been genuine and that the sentence imposed by the trial court had been correct and justified. 22. On 20 May 2005 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) held a hearing in the presence of a prosecutor, B. and the applicant. At the hearing the applicant reaffirmed his initial submissions, said that he regretted the offence he had committed, and requested that the trial court’s verdict be left in force. According to the applicant, he had requested the presence of a lawyer at this hearing but his request had not been granted. 23. On the same date the Court of Appeal quashed the sentence of the Pavlograd Court as unduly lenient, taking into account the seriousness of the offence and the applicant’s personality. It also found that the trial court had misinterpreted the law regulating the calculation of sentences with regard to the time served in prison in Russia. In particular, it had failed to take into account the fact that Ukraine had made a reservation to the Protocol to the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 concerning the effect given to sentences rendered in other States Parties to the Protocol. Accordingly, the Court of Appeal sentenced the applicant to twelve years’ imprisonment to be calculated from 16 January 2005, the date of his arrest in Ukraine. 24. The applicant lodged an appeal on points of law, arguing that he was in fact innocent. He alleged that at the trial he had initially denied his guilt and pointed out what he believed to be gaps and inconsistencies in the prosecution’s case. However, he had then pleaded guilty because of pressure from the trial judge and because he had wished to be released sooner and had no funds to pay for a lawyer. No prosecutor had been present at his trial and in these circumstances he had not been convinced of the judge’s impartiality or that there had been a fair examination of evidence. When the judge had assured him that he would receive a lenient sentence if he pleaded guilty, he had followed the judge’s instructions. The applicant also alleged that the Court of Appeal had erred in failing to take into account the time he had served in prison in Russia. 25. On 30 August 2005 the Supreme Court rejected the applicant’s appeal and found that, taking due account of the adequacy of the written evidence collected by the prosecution, the applicant’s conviction had a sufficient factual and evidentiary basis. It furthermore found that the Court of Appeal had been correct in its calculation of the applicant’s prison term from 16 January 2005, but reduced the sentence to nine years. 26. On 10 March 2009, at the request of the prosecutors’ office, the Court of Appeal ordered that the term of the applicant’s imprisonment be calculated from 1 June 2004 (the date of the decision to remand him in custody pending consideration of the extradition request). 27. On 30 September 2011 the applicant was released. | 1 |
test | 001-165368 | ENG | RUS | COMMITTEE | 2,016 | CASE OF BRAZHNIKOV AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 4. The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the excessive length of their pre-trial detention. | 1 |
test | 001-148211 | ENG | DEU | ADMISSIBILITY | 2,014 | AURNHAMMER v. GERMANY | 4 | Inadmissible | Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applicant, Mr Veit Aurnhammer, is a German national who was born in 1984 and is currently detained in Straubing, Germany. When lodging his application he was represented before the Court by Mr G. Althammer, a lawyer practising in Cham, Germany. The latter informed the Court on 1 August 2014 that he no longer represented the applicant. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. On 19 August 2004 the applicant was convicted by the Regensburg Juvenile District Court of causing bodily harm and damage to property because he had hit two ticket collectors in the face when they tried to prevent him from evading ticket controls and had damaged their clothes and glasses. He was further convicted of defamation and attempted coercion as he had insulted a prosecutor during one of his previous trials and had tried to intimidate her. Moreover, he was convicted of dangerous bodily injury because he had attacked with a knife the neck of a sleeping cellmate of whom he had previously felt humiliated and slightly injured him. Besides, the applicant was convicted of various offences of theft, minor fraud, and trespassing. Adding on another prison sentence imposed on the applicant in a previous judgment of 15 February 2000 for various offences of defamation, resisting bailiffs, bodily injury and theft, the court sentenced the applicant to an overall prison term of two years and six months in a juvenile prison. 4. Besides, the Court ordered the applicant’s indefinite placement in a psychiatric hospital in accordance with Article 63 of the Criminal Code (see paragraphs 17 and 18 below). 5. At the time the applicant committed the relevant criminal offences he was between nineteen and twenty years old. The court decided to apply the juvenile criminal law instead of the criminal law rules applicable to adults because it found, in line with the report of the psychiatric expert Dr S., deputy medical director (Oberarzt) of the forensic psychiatry and psychotherapy department of Regensburg Psychiatric Clinic and with the additional psychological expert opinion of psychotherapist H., that the applicant’s development as an adult was delayed, that he was still immature and had therefore to be treated as a juvenile and not as an adult. The court further found, in line with the psychiatric experts’ opinions, that the applicant had committed the criminal offences of causing bodily harm and damage to property, dangerous bodily injury, defamation and attempted coercion while in a state of diminished criminal responsibility (Article 21 of the Criminal Code, see paragraph 19 below), as he suffered mainly from a “borderline personality disorder of an impulsive type with dissocial components” and also from “adult hyperactivity syndrome”, which limited his ability to control his impulses. With regard to the other criminal offences he was convicted of, the court, in line with the psychiatric experts’ opinion, regarded the applicant as fully liable. 6. On 2 November 2005, 27 September 2006 and 27 September 2007 the criminal courts reviewed the applicant’s compulsory confinement in the psychiatric clinic in accordance with Articles 67d and 67e of the Code of Criminal Procedure (see §§ 20/21 below) and found on all three occasions that the applicant’s detention in a psychiatric clinic could not yet be suspended on probation. For the purposes of these review decisions, the inhouse psychiatric doctors at Straubing Psychiatric Hospital issued medical opinions on 9 August 2005, 14 August 2006 and 2 July 2007. 7. On 9 October 2008 the District Court again decided that the applicant still suffered from the psychological disorder which had led to the criminal offences of which he had been convicted in 2004 and that he could be expected to commit further offences of a certain gravity if released. The decision was delivered after having heard the applicant on 26 September 2007 and again on 21 May 2008. It was based on the above-mentioned expert opinion of 2 July 2007 by the in-house psychiatric team at Straubing Psychiatric Hospital and on a newly commissioned external expert opinion of the psychiatric expert Prof. Dr O., head of the forensic psychiatry and psychotherapy department of the University of Regensburg at Regensburg Psychiatric Clinic, who had delivered his expert opinion on 19 February 2008, had supplemented it on 28 July 2008 and had personally been heard by the court on 21 May 2008. 8. In the medical report of 2 July 2007 the team of in-house psychiatric experts at Straubing Psychiatric Hospital had expressed the view that the applicant could be expected to commit further crimes if released because he showed no insight into his psychological disorder. The expert opinion had further expressed the suspicion that the applicant might in fact be schizophrenic. 9. In his expert opinion Prof. Dr O. had diagnosed the applicant with an “emotionally unstable personality disorder of the impulsive type” and possibly also with “adult hyperactivity syndrome”. O. had further stated that, despite the fact that the personality of the applicant had matured considerably during his confinement, he could not at this stage be expected to abstain from committing any significant crimes if released. Although the applicant had obviously benefited from his placement in a psychiatric hospital and had not committed any criminal offences within the hospital, he was still not psychologically stable enough to be released. The biggest obstacle to his release was that the applicant still had very little insight into the fact that medical treatment was necessary now and in the future after a possible release. His compliance with his treatment had hence not yet been achieved. Furthermore, the applicant would need clearly structured sheltered accommodation if released. The preparations for such accommodation were not yet in place. The expert had further stated that, if the applicant could be further stabilised by psychotherapy, if his compliance with his treatment could be achieved in the future and if a place in adequately structured sheltered accommodation was prepared, the applicant could be released but would need to be prepared over a period of six to twelve months for such release on probation. 10. Following an appeal by the applicant, the Regional Court upheld the decision of the District Court on 16 January 2009. 11. On 8 October 2009 the District Court decided in accordance with Article 67d § 2 of the Criminal Code (see paragraph 19 below) that the applicant could not yet be released because, owing to his ongoing psychiatric illness, he could still be expected to commit crimes of a certain gravity if released. The Court based its decision on a newly commissioned expert opinion of the internal psychiatric team of Straubing Psychiatric Hospital of 7 July 2009 and the oral hearing of the deputy medical director treating the applicant of 30 September 2009. 12. The respective medical experts were still of the view that the applicant could be expected to commit further crimes if released, because he still lacked sufficient insight into his psychological disorder. There was still a suspicion that he might in fact be suffering from schizophrenia rather than from a borderline personality syndrome. But as he refused to cooperate fully with the doctors, a clear diagnosis that would allow a more specific treatment was difficult. The idea that the applicant was suffering from schizophrenia was therefore only a presumption which could not be confirmed or refuted. More rapid results from the applicant’s treatment could only be achieved if he complied fully with the medical and psychotherapeutic treatment. As he still had a negative attitude towards the medication and the psychotherapists, sufficient progress to justify his release could not be achieved. 13. On 23 December 2009 the Regional Court upheld the decision. It based its decision on the above-mentioned external medical opinion of Prof. Dr O. of 19 February and 21 May 2008 respectively and on the internal expert opinion of the psychiatric team of Straubing Psychiatric Hospital of 7 July 2009. The court held that there was still a clear diagnosis of “emotionally unstable personality disorder of the impulsive type” and possibly also of “adult hyperactivity syndrome”. This diagnosis did not contradict the diagnosis of “borderline personality disorder of an impulsive type with dissocial components” established by S. at the time of the applicant’s initial compulsory confinement. According to the Regional Court, Prof. Dr O. had made it clear before the court that that diagnosis just gave a more precise description of the mental disturbance from which the applicant had already been suffering when he committed the offences of which he had been convicted and when he had been compulsorily admitted, but did not describe a new mental illness. 14. The court further held that the idea that the applicant in fact suffered from schizophrenia was only an unverified presumption. His situation had not changed since the external expert O. had given his opinion on 19 February and 21 May 2008. According to the statement of the in-house psychiatric doctor, the applicant had still not developed any insight into his psychological illness that would result in full cooperation with regard to his medication. At the same time no structured sheltered accommodation had yet been prepared into which he could be placed after his release. He was therefore still to be expected to commit further crimes of a certain gravity if released. Considering the criminal offences he had committed in the past and the risk that he might again commit similar offences such as causing bodily harm and aggravated bodily injury, his continued detention for more than five years by that time was not yet disproportionate. 15. A further appeal lodged by the applicant with the Court of Appeal was rejected on the ground that domestic law did not provide for such an appeal. 16. A constitutional complaint and a request for restoration of the previous situation lodged by the applicant were of no avail. On 10 June 2010 the Federal Constitutional Court declined to admit the constitutional complaint for examination, without giving any reasons, and did not rule on the request for restoration of the previous situation (no. 2 BvR 1001/10). 17. In accordance with Article 63 of the Criminal Code placement in a psychiatric hospital may be ordered in the case of offenders who have acted without criminal responsibility or in the case of offenders who have acted with diminished criminal responsibility in addition to their punishment. The measure must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants concerned, as well as to their dangerousness (Article 62 of the Criminal Code). 18. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court must order his placement in a psychiatric hospital without specifying a maximum duration, if a comprehensive evaluation of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public. 19. Criminal incapacity and diminished criminal responsibility are regulated by Articles 20 and 21 of the Criminal Code, which read as follows: Article 20 Criminal incapacity on account of psychological disturbance “Any person who at the time of the commission of the offence is incapable of understanding the unlawfulness of his or her actions or of acting in accordance with any such understanding on account of a pathological mental disorder, a profound consciousness disorder, mental deficiency or any other serious mental abnormality, shall be deemed to have acted without guilt.” Article 21 Diminished criminal responsibility “If the capacity of the offender to understand the unlawfulness of his or her actions or to act in accordance with any such understanding is substantially diminished at the time of the commission of the offence for one of the reasons indicated in Article 20, the sentence may be mitigated in accordance with Article 49(1).” 20. Article 67d of the Criminal Code governs the duration of detention. In the version in force at the relevant time, it provided: Article 67d Duration of detention “(1) ... (2) If no maximum period has been provided or the period has not yet expired, the court shall suspend the measure for a probationary period if it can be expected that the person subject to the measure will not commit any more unlawful acts if released. The order for suspension shall automatically lead to the person being subjected to supervision. ... (6) If, after the enforcement of a hospital order has begun, the court finds that the conditions for the measure no longer exist or that the continued enforcement of the measure would be disproportionate, the court shall declare it terminated. Following release the person concerned shall automatically be placed under supervision. ...” 21. Article 67e of the Criminal Code provides for the review of a person’s detention, including in a psychiatric hospital. The court may review at any time whether the continued execution of the detention order should be suspended and the person concerned placed on probation. It is obliged to do so within fixed time-limits (Article 67e, first paragraph). For persons detained in a psychiatric hospital, this time-limit is one year (Article 67e, second paragraph). | 0 |
test | 001-155193 | ENG | RUS | CHAMBER | 2,015 | CASE OF YAIKOV v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 5. The applicant was born in 1974 and lives in Miass, Chelyabinsk Region. 6. The applicant is a mentally disabled person. On 19 September 2003 the applicant was arrested on a suspicion of having committed a murder. On the same day the applicant’s mother informed the investigator that the applicant suffered from a mental disease. 7. In the period from 19 September until 25 October 2003 during the questionings conducted in the presence of counsel the applicant confessed, and furthermore confessed to murders of another five persons. 8. On 20 September 2003 the Kopeysk Town Court of the Chelyabinsk Region remanded the applicant in custody upon the investigator’s request. 9. On 14 November 2003 the Tsentralniy District Court of Chelyabinsk extended the applicant’s detention. It was subsequently extended on 18 February, 23 April and 17 September 2004 on the grounds that he was suspected of an especially serious criminal offence, might abscond, reoffend, interfere with the witnesses or obstruct the investigation in some other way. On 17 September 2004 the applicant detention was extended until 25 November 2004. 10. On 4 March 2004 the investigator ordered a psychiatric expert examination of the applicant. 11. On 16 July 2004 the commission of experts concluded that at the time of examination the applicant was in an acute phase of the disease and was not able to account for his actions. It was therefore impossible to determine the applicant’s state of mind at the time of the offences. The experts stated that the applicant posed a danger to society and needed a compulsory treatment at a psychiatric institution of a specialized type with intensified supervision. 12. On 22 October 2004 the applicant’s case was sent by the investigator to the court. 13. On 11 November 2004 the Chelyabinsk Regional Court held a preliminary hearing and extended the applicant’s detention. 14. The court hearings in the applicant’s case started on 17 November 2004. 15. On 11 February 2005 the Chelyabinsk Regional Court ordered compulsory treatment of the applicant in a psychiatric institution of a specialized type with intensified supervision until the improvement of his condition subsequently followed by the expert examination. The court also stated that until his placement to the hospital the preventive measure should remain unchanged. The relevant part of the decision reads as follows: “The court has no reason to doubt the conclusions of the medical experts [of 16 July 2004]. Taking into account the mental state of Y. and the nature of committed acts posing a danger to society and the need for compulsory treatment in a specialized psychiatric hospital with intensive supervision, the court considers that in accordance with Articles 97, 99(1) (g), 101 (4) of the Criminal Code he should be placed in this kind of hospital for compulsory treatment. However the question of releasing him from execution of sentence or criminal responsibility cannot be currently resolved, as it was not possible to resolve the question of sanity of Y. in relation to the alleged acts due to a temporary disorder, namely the depressive episode of severe degree. In these circumstances Y. should be placed in the mental hospital until the improvement of his condition ... The preventive measure should remain unchanged until his placement in the mental hospital.” 16. The applicant’s counsel appealed. In particular she argued that the applicant should be released, as the compulsory treatment of the applicant in a psychiatric institution of a specialized type with intensified supervision would worsen his state of health. He should be treated in a mental hospital of a general type, noting that more than seven months had passed since the last medical examination. 17. On 15 April 2005 the Chelyabinsk Regional Court extended the applicant’s detention until 22 July 2005 on the grounds that he was suspected of an especially serious criminal offence and the consideration of his case on the merits was still pending. 18. On 12 May 2005 the Supreme Court of Russia quashed the decision of 11 February 2005 and remitted the case for fresh examination to the first instance court. The Supreme Court noted that the first instance court had wrongly applied the provisions of the Code of the Criminal Procedure on compulsory medical treatment of offenders who had committed a crime in the state of insanity to the applicant’s case since his state of mind at the time of the commission of the crimes had not yet been established. The relevant part of the decision reads as follows: “Having examined the materials of the case, grounds of appeal statements ... the court finds that the decision should be quashed due to the violation of rules of criminal procedure. The present criminal case was transmitted to the Regional Court with a view of application of the compulsory measures of a medical nature. The court considered this case according to the Articles 441-442 of the Code of Criminal Procedure ... and found that Y. having a mental disease, currently in acute state, committed the acts ... and placed him in a psychiatric institution of a specialized type with intensified supervision for compulsory treatment until the improvement of his condition subsequently followed by the expert examination. However according to the Article 443 (1) of the Criminal Code [Code of Criminal Procedure] the measures indicated in Article 99 of the Criminal Code could be applied only in respect of the person who has committed an act, prohibited by the criminal law, in the state of insanity, or to a person who became mentally ill after committing the crime, which makes it impossible to sentence him or to execute it. Only in such circumstances is it possible to consider the case according to these rules ... provided by Articles 440-443 of the Code of Criminal Procedure. It follows from the materials of the case, in particular from the results of the expert examination, that Y. does not fall into any of these categories of persons as until improvement of his acute condition it is not possible to establish whether he committed an act, prohibited by the criminal law, in the state of insanity, or has plunged into a state of mental disorder after committing the crime, which makes it impossible to sentence him or to execute the sentence. Nevertheless the court accepted this case and considered it according to Articles 440-443 of the Code of Criminal Procedure, at the same time the court in its decision notes that Y. committed the act, prohibited by the criminal law ... However as it mentioned before it does not follow from the expert report that he was in a state of insanity ... At the same time it follows from the experts report ... that Y. suffers from the acute state of the disease and is in need of the treatment in a psychiatric institution. According to Article 435 of the Code of Criminal Procedure when it is established that a person to whom detention on remand has been applied as a preventive measure suffers from a mental illness, a court, upon a prosecutor’s request and in accordance with the procedure laid down in Article 108 of the of Code of Criminal Procedure, shall take a decision authorising a transfer of that person to a psychiatric hospital ... The preventive measure shall remain unchanged.” 19. On 23 June 2005 the Chelyabinsk Regional Court scheduled another hearing of the applicant’s case for 7 July 2005. 20. On 7 July 2005 the Chelyabinsk Regional Court returned the case to the prosecutor in order to cure the violations of certain procedural rules. The court also extended the applicant’s detention on remand. The decision remained silent as to the grounds on which such conclusions were based and also as to the period of such authorised detention or the date of its next review. The applicant appealed. In particular he indicated that the period of his detention had expired. 21. On 21 July 2005 the Chelyabinsk Regional Court extended the applicant’s detention until 22 October 2005 on the grounds that he was suspected of an especially serious criminal offence. 22. On 26 September 2005 the Supreme Court of Russia dismissed the applicant’s appeal. Referring to the gravity of the charges, it noted that there were no reasons which would make it necessary to cancel or change that preventive measure. 23. On 10 October 2005 the Chelyabinsk Regional Court extended the applicant’s detention until 22 January 2006 on the grounds that he was suspected of an especially serious criminal offence and the consideration of his case on the merits was still pending. 24. On 25 October 2005 the investigator suspended the criminal investigation until the improvement of the applicant’s condition. The deputy prosecutor of the Chelyabinsk Region asked the court to transfer the applicant to a psychiatric institution, relying on Article 435 of the Code of Criminal Procedure. 25. On the same date the Tsentralniy District Court of Chelyabinsk, relying on Article 435 of the Code of Criminal Procedure, ordered the applicant’s transfer to a psychiatric institution until the improvement of his condition. The court noted that since it did not deal with the issue of compulsory medical treatment of the applicant it was not authorized at that stage to determine the type of the institution the applicant had to be transferred to. The relevant part of the decision reads as follows: “It follows from the medical expert’s report that Y. suffers from the acute state of the disease. Currently he is not able to understand the factual character of his actions and control them. Taking into account his current mental state it is not possible to establish his mental state at the material time in respect of the acts he is accused of. Taking into account his current mental state, the presence of the mood disorders, the hallucinatory experiences, the lack of criticism towards his own mental state, Y. represents a danger to society and is in need of the treatment in a psychiatric institution of a specialized type with intensified supervision until the improvement of his condition. According to Article 435 of the Code of Criminal Procedure the court can transfer a person who is detained on remand to an inpatient psychiatric institution when it is established that the person suffers from a psychiatric illness. he court takes the decision about the transfer of Y. to the mental hospital. However the court does not deal with the issue of compulsory medical treatment of the applicant; thus it is not authorised at that stage to determine the type of the institution the applicant had to be transferred to ... ... Decides to transfer the applicant to a psychiatric institution ...” 26. The applicant’s counsel appealed. She argued, in particular, that she had not been notified of the hearing and the applicant was not in the acute state of the disease anymore. 27. On 17 November 2005 the Chelyabinsk Regional Court upheld the decision on the applicant’s transfer. 28. The administration of the remand prison IZ-74/3 of Chelyabinsk asked the court to determine the type of psychiatric institution the applicant had to be transferred to. 29. On 13 January 2006 the applicant was transferred to the Smolensk psychiatric hospital of a specialized type with intensified supervision. 30. On 17 January 2006 the Tsentralniy District Court of Chelyabinsk taking into account the results of the expert examination of 16 July 2004 decided that the applicant had to be transferred to a psychiatric institution of a specialized type with intensified supervision. The relevant part of the decision reads as follows: “... Taking into account the medical expert’s report of 16.07.2004 ... the court considers it necessary to transfer Y. to a psychiatric institution of a specialized type with intensified supervision until the improvement of his condition ...” 31. On 2 February 2006 the Chelyabinsk Regional Court upheld the decision of 17 January 2006. 32. On 22 March 2006 the Tsentralniy District Court of Chelyabinsk upheld the investigator’s decision of 25 October 2005 to suspend the proceedings. The applicant appealed. 33. On 9 June 2006 the Chelyabinsk Regional Court upheld the decision of 22 March 2006. 34. On 22 September 2006 the medical commission of the Smolensk psychiatric hospital concluded that the applicant’s condition had improved so that he could be transferred back to the judicial and investigation authorities. 35. On 17 November 2006 the Sychevskiy District Court of the Smolensk Region passed the decision to stop the compulsory medical treatment of the applicant. 36. On 28 December 2006 the investigation was resumed and the applicant signed an undertaking not to leave the town and was released. 37. On 10 January 2007 the prosecutor decided to conduct an outpatient psychiatric expert examination of the applicant. The applicant failed to appear and his representative requested an inpatient examination. 38. On 7 March 2007 the Tsentralniy District Court of Chelyabinsk ordered the applicant’s inpatient psychiatric expert examination. 39. On 19 April 2007 the commission of experts delivered the results of the examination. The commission of experts concluded that at the time of the crimes the applicant was in a state of insanity. The experts stated that the applicant posed a danger to society and needed a compulsory treatment in a psychiatric institution of a specialized type with intensified supervision. 40. On 25 July 2007 the applicant’s case was sent to the court. 41. By decision of 21 August 2007 the Chelyabinsk Regional Court scheduled the hearing of the applicant’s case for 22 August 2007. 42. On 22 August 2007 the Chelyabinsk Regional Court ordered the applicant’s detention for three months with reference to the expert’s report of 19 April 2007 and to the fact that he was suspected of an especially serious criminal offence. 43. On an unspecified date the applicant’s counsel lodged a request for conducting an additional psychiatric expert examination of the applicant. On 22 August 2007 the Chelyabinsk Regional Court granted the request of the lawyer. 44. On 17 November 2007 the Chelyabinsk Regional Court extended the applicant’s detention until the end of consideration of the case by the trial court. It referred to the seriousness of the charges against him and the fact that he had changed his place of residence without due notification of the investigation authorities. On 14 January 2008 the Supreme Court of Russia upheld the decision of 17 November 2007. 45. On 6 December 2007 the commission of experts delivered the results of the psychiatric examination, which confirmed the conclusions reached in the report of 19 April 2007 and the applicant’s inability to take part in the court’s hearings. 46. On 18 February 2008 the Chelyabinsk Regional Court decided to return the case to the prosecutor to correct the inaccuracy in the description of the facts of the case. On the same day the court also extended the applicant’s detention on remand until 22 May 2008. 47. On 12 May 2008 the Chelyabinsk Regional Court scheduled the hearing of the applicant’s case for 23 May 2008 and extended the applicant’s detention on remand until 22 August 2008. 48. On 20 August 2008 the Chelyabinsk Regional Court extended the applicant’s detention on remand until 22 November 2008. It referred again to the fact that he had changed his place of residence without due notification of the investigation authorities. 49. On 11 September 2008 the Chelyabinsk Regional Court found it established that the applicant had sexually assaulted and murdered six women and stole the belongings of one of them. Since the applicant had committed the crimes in the state of insanity, the court relieved him of criminal responsibility and ordered his compulsory treatment in a psychiatric institution of a specialized type with intensified supervision. The applicant appealed. 50. On 25 December 2008 the Supreme Court of Russia upheld the decision of 11 September 2008. | 1 |
test | 001-157507 | ENG | UKR | ADMISSIBILITY | 2,015 | USTYUGOV v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano | The applicant, Mr Igor Gennadyevich Ustyugov, is a Ukrainian national, who was born in 1970 and lives in Dnipropetrovsk. He is represented before the Court by Ms L.Y. Solonik, a lawyer practising in Dnipropetrovsk. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms N. Sevostianova, of the Ministry of Justice of Ukraine. The facts of the case, as submitted by the parties, may be summarised as follows. On 26 April 2000 the Zhovtnevyy District Court of Dnipropetrovsk convicted the applicant of, among other crimes, robbery and extortion and sentenced him to nine years’ imprisonment. On 17 May 2000 the applicant was taken to the Synelnykivska Prison no. 94 (Синельниківська виправна колонія №94, hereafter “the prison”). On 6 June 2000 the decision of 26 April 2000 was upheld by the Dnipropetrovsk Regional Court. On 22 February 2002 the Synelnykivskyy District Court, Dnipropetrovsk Region, reclassified the offences according to the new Criminal Code, 2001, and reduced the term of the applicant’s imprisonment by one month. In his application form of 7 July 2004 the applicant stated that he had shared 60-square-metre sleeping quarters with eighty other inmates. Sanitary conditions in the prison were poor, in that there was only one bathroom for each two cells. Thus 150 inmates had to share two water taps and four lavatory pans. The cells were infested with lice and the rations were meagre. The applicant was not given any clothes, any hygiene products or any cutlery by the prison authorities. Tuberculosis-infected inmates were not segregated from the general prison population. Nor were there any other measures in place to prevent the spread of the disease. In 2002 the applicant contracted tuberculosis and spent three months in the prison hospital. According to the applicant, he was placed in a disciplinary cell where he remained for fifteen days (particular dates not specified), under constant video surveillance. In 2004 the applicant suffered a heart attack and was moved to a prison hospital. After a short stay there, he was returned to the prison. On his readmission he was allegedly beaten up by prison guards. The applicant, a Lutheran, stated that it had been impossible to practise his religion while it had been possible to practise other religions (the applicant mentioned Jehovah’s Witnesses and Protestants (in particular, Pentecostals)). The applicant finally stated that the prison authorities had given him letters from the Court with delays, had not dispatched his letters to the Court, had opened his correspondence and had withheld unspecified enclosed documents. The Government submitted that between 2000 and September 2007 the applicant had been detained in three different detention units: - 2000-03 – unit no. 9; - 2004 – unit no. 10; - 2005-September 2007 – high-security unit. The sleeping quarters in units nos. 9 and 10 were 187 and 192 square metres and at the material time there were ninety-two and sixty-four detainees respectively. In each of the units there were nine hand basins and eight lavatory pans. Each detainee had a bed and a stool. There were tables, one bedside storage locker per two detainees and a television set. There was a dining room and a locker room. The premises had electricity and ventilation. Windows allowed access to fresh air and there was sufficient light. In the high-security unit the applicant was detained in cell no. 1 (21 square metres). The cell had been designed for four persons. There were four beds, four chairs, four bedside storage lockers, a rubbish bin, two coat racks, a table and a television. The total space of the cells in the high-security unit was 166.5 square metres. In September 2007 there were 23 detainees there. There were eight washing facilities, including twelve lavatory pans and twelve hand basins as well as three showers. The applicant had crockery and linens and was given food three times a day. The applicant had a special diet since previously he had had tuberculosis. The applicant also had daily walks. Once a week he could have a shower and received 200 grams of soap monthly for this purpose. Since 1999 the applicant was subject to regular medical check-ups as he had previously suffered from tuberculosis. In August 2001 and between 11 March and 3 April 2002 the applicant was treated in the Dnipropetrovsk pre-trial detention centre hospital for a degenerative spinal disease and other spinal problems. In April 2002 he was diagnosed with a post-tuberculosis condition and between 2002 and April 2005 he received prophylactic treatment in spring and in autumn. In April 2005 it was established that the applicant had been completely cured of tuberculosis. In 2007 it was established that the applicant was disabled on account of his spinal problems. According to the applicant’s personal records, he was placed in a disciplinary cell in July and August 1999 (eleven days total), May 2001 (ten days), October 2001 (ten days), February and October 2002 (ten days total), June 2003 (ten days) and June 2006 (five days). The Government further submitted that the prison was visited by various Christian priests. There were religious services three times a week. The relevant part of the European Prison Rules provides as following: “18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.” The relevant part of the Commentary provides as following: “The CPT, by commenting on conditions and space available in prisons in various countries has begun to indicate some minimum standards. These are considered to be 4m2 for prisoners in shared accommodation and 6m2 for a prison cell. These minima are, related however, to wider analyses of specific prison systems, including studies of how much time prisoners actually spend in their cells. These minima should not be regarded as the norm. Although the CPT has never laid down such a norm directly, indications are that it would consider 9 to 10 m2 as a desirable size for a cell for one prisoner. This is an area in which the CPT could make an ongoing contribution that would build on what has already been laid down in this regard. What is required is a detailed examination of what size of cell is acceptable for the accommodation of various numbers of persons. Attention needs to be paid to the number of hours that prisoners spend locked in the cells, when determining appropriate sizes. Even for prisoners who spend a large amount of time out of their cells, there must be a clear minimum space, which meets standards of human dignity.” In its Guidance the ICRC outlined the following principles: “Shared or dormitory accommodation: 3.4 m2 per person, including where bunk beds are used. ... As previously mentioned, space alone is a limited measure of the quality of life and conditions of detention. As such, it is merely a starting point when evaluating the conditions in which detainees are held. Space norms cannot be specified separately from the total environment. The appropriateness of the ICRC’s recommended specifications in any given situation will depend on a number of other factors including: the specific individual needs of, for example, sick, old or young prisoners, women and/or people with disabilities; the physical condition of the buildings; the amount of time spent in the accommodation area; the frequency and extent of opportunities to take physical exercise, work and be involved in other activities outside the accommodation area; the number of people in the accommodation area (to allow a degree of privacy and avoid isolation); the amount of natural light and the adequacy of the ventilation; other activities being undertaken in the accommodation area (e.g. cooking, washing, drying); other services available (e.g. toilets and showers); and >>the extent of supervision provided.” | 0 |
test | 001-173770 | ENG | BGR | COMMITTEE | 2,017 | CASE OF GAPAEV AND OTHERS v. BULGARIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) | Nona Tsotsoria;Síofra O’Leary | 5. The applicants were born in 1970, 1973, 1999, 2001 and 2007 respectively. The Court has not been informed of their current place of residence. 6. The first and second applicants, a married couple, arrived in Bulgaria in 1997. Their three children, the remaining applicants, were born in that country. All members of the family were granted permanent resident permits. In 2005 the first applicant bought a flat in Sofia, where the family lived. 7. On 29 May 2008 the head of the National Security Service issued an order withdrawing the first applicant’s residence permit, ordering his expulsion and imposing a ten-year ban on his reentering Bulgaria, on the ground that his presence in the country represented a “serious threat to national security”. Factual grounds justifying the order were not indicated; it was merely noted that it was based on “proposal no. B849”. 8. That proposal, drawn up by the National Security Service on 27 May 2008 and initially classified, was declassified on 22 February 2016 and has been submitted by the Government. It stated that, according to intelligence data, the first applicant was the leader of an international terrorist group, working towards the aiding and financing of Chechen extremist and separatist organisations. It also stated that he was being searched on the territory of the Russian Federation and that his actions lowered the prestige and the interests of the Bulgarian State. The document claimed, in addition, that the first applicant had been implicated in extortion, drug trafficking, smuggling, money laundering and other criminal activities. No evidence was provided to substantiate those claims, even though the document referred to some specific facts. It was stated, for example, that in 2006 the applicant and another person had attempted to smuggle into Bulgaria a “highly toxic substance”, and that, also in 2006, he had threatened the seller of an expensive property in Varna forcing him to choose as a buyer a person close to the applicant. 9. On 12 June 2008 the first applicant applied for judicial review of the expulsion order. He disputed the allegation that he represented “a serious threat to national security”. He pointed out that his family was living in Bulgaria and that his children had been born in the country, and claimed that the proposed separation of his family was “unjustified”. 10. During the ensuing proceedings the applicant and his representative were shown proposal no. B849 and they presented evidence seeking to disprove some of the allegations it contained. In particular, the first applicant presented certificates issued by the Bulgarian and the Russian authorities stating that he had no convictions in the two countries and explained that in February 2008 he had travelled to Russia, where, as he claimed, he would have been arrested had he indeed been searched by the authorities of that country. In addition, in his written submissions the first applicant’s representative pointed out that the allegations made in the proposal were not substantiated by any evidence, and that they could not justify a conclusion that the applicant represented a threat to national security. In his oral pleadings he pointed out once again that the first applicant had “created his family” in Bulgaria. 11. In a final judgment of 20 December 2008 the Supreme Administrative Court dismissed the application for judicial review. After summarizing the claims made in proposal no. B849, it held briefly that it was bound by them. Thus, in its view “it should be concluded that the presence and the activity of the [first applicant] amount to a serious threat to national security and to the international prestige of the Republic of Bulgaria.” 12. In a decision of 29 May 2008 the head of the Ministry of Internal Affairs’ Migration Directorate ordered the first applicant’s detention pending expulsion. That decision was quashed in a judgment of the Sofia Administrative Court of 17 July 2008. In another decision dated 28 August 2008 the head of the National Security Service ordered once again the applicant’s detention. That decision was quashed as well, in a judgment of the Supreme Administrative Court of 27 November 2009. The first applicant effectively remained in detention from 10 September 2008 to the date of his expulsion, 3 September 2009. 13. The other applicants remained for several more years in Bulgaria, but left in November 2015. | 1 |
test | 001-158191 | ENG | ARM | CHAMBER | 2,015 | CASE OF SAGHATELYAN v. ARMENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1959 and lives in Vardenis. She worked as a judge at Gegharkunik Regional Court. 6. On 17 February 2004 the Minister of Justice filed a motion with the Council of Justice seeking to have the applicant dismissed from her post under Section 30 (8) of the Law on the Status of a Judge. The motion stated that the applicant had been severely reprimanded on three occasions, namely in 1997, 2000 and 2001, for various gross violations of the rules of criminal procedure and another set of disciplinary proceedings had been instituted against her on the same grounds in December 2003. 7. On 2 March 2004 the Council of Justice examined the motion and decided to form a three-member commission to examine the factual basis of the motion and to report back to the Council. 8. On 27 April 2004 the Council of Justice adopted a conclusion recommending to the President of Armenia that the applicant be dismissed. 9. On 30 April 2004 the President of Armenia issued a decree dismissing the applicant from her post. 10. On 15 March 2005 the applicant lodged a claim with the Kentron and Nork-Marash District Court of Yerevan, seeking to annul the President’s Decree of 30 April 2004 as unlawful. She argued that her dismissal from work had been in violation of a number of provisions of domestic law and various European instruments relating to the status of a judge. In particular, the motion for dismissal filed by the Minister of Justice on 17 February 2004 had been based upon matters which had been the subject of earlier disciplinary proceedings and in respect of which penalties had already been imposed. The motion did not contain any reasoning and was not accompanied by any supporting documentation and was, therefore, unsubstantiated. She further argued that judicial decisions were not supposed to be subject to a review other than by way of an appeal procedure prescribed by law. Thus, the commission of gross violations of the law (the alleged grounds for her dismissal) could only have been found by a higher court (which had not happened in her case) and not by non-judicial bodies and officials, such as the Council of Justice or the Minister of Justice. Finally, she claimed that the question of her dismissal had been examined by the Council of Justice in her absence, in violation of the relevant rules. 11. On 26 May 2005 the Kentron and Nork-Marash District Court of Yerevan decided under Article 109 of the Code of Civil Procedure to terminate the proceedings on the ground that the applicant’s claim was not subject to examination by the courts of general jurisdiction. In doing so, the District Court referred, inter alia, to Article 100 (1) of the Constitution, Article 15 § 2 of the Civil Code and Article 160 § 1 of the Code of Civil Procedure (the CCP). 12. On 7 June 2005 the applicant lodged an appeal. 13. On 13 July 2005 the Civil Court of Appeal examined and dismissed the applicant’s claim as unsubstantiated. 14. On 5 August 2005 the applicant lodged an appeal on points of law. 15. On 23 September 2005 the Court of Cassation quashed the judgment of the Court of Appeal and decided to terminate the proceedings on the same grounds as the District Court. 16. On 16 November 2006, in proceedings unrelated to this case, the Constitutional Court found the second paragraph of Article 160 § 1 of the CCP to be unconstitutional. | 1 |
test | 001-182216 | ENG | RUS | COMMITTEE | 2,018 | CASE OF LESNIKOVICH v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicant was born in 1966 and lives in Nizhnevartovsk, in the Khanty-Mansiyisk Region. 5. At the material time the applicant leased a flat in a block of flats in Noyabrsk (a town in the Yamalo-Nenetskiy Region). On 16 February 2006 at about 6 a.m. the applicant’s neighbours called the police. They informed the police of loud screams that they had heard from the applicant’s flat. Two police officers arrived at 6 a.m. and took the applicant to the Noyabrsk police station (“the police station”). 6. According to a logbook of people taken to the police station, the applicant arrived at the station at 7.05 a.m. and was handed over to an investigator “for further proceedings” at 7.55 a.m. on 16 February 2006. According to the applicant, the investigator, Ch., repeatedly questioned him as “a witness to the incident”. 7. According to the applicant, he was released on 16 February 2006 at about 11 p.m. and summoned to appear before the investigator the next day at 2 p.m. The applicant alleges that he was under the constant supervision of police officers between 6 a.m. and 11 p.m. on 16 February 2006 and was not allowed to leave the police station. 8. In 2011 the applicant sued the police station, claiming compensation for unrecorded detention. 9. On 5 August 2011 the Noyabrsk Town Court of the YamaloNenetskiy Region dismissed his claim. 10. On 5 September 2011 the applicant lodged an appeal against that decision. However, he was required to correct some errors in his claim. 11. On 28 September 2011 the Noyabrsk Town Court returned the claim to the applicant, stating that he had failed to correct the errors in his claim. 12. The applicant did not lodge an appeal against that decision. 13. On 17 February 2006 the investigator opened a criminal investigation into an offence of rape. The applicant formally became a suspect. On the same day the investigator arrested him and drew up formal records of his arrest. Between 18 February 2006 and 22 June 2006 the applicant was kept in the temporary detention centre of the Noyabrsk police station (“the IVS”). 14. The applicant provided the following description of the conditions in the IVS. He was held in cell no. 9 measuring 15 sq. m. The cell housed between nine and twelve inmates who took it in turns to sleep. The overcrowding caused a lot of conflict and tension between the inmates. 15. The window of the cell measured 0.6 m by 0.3 m and was covered with metal blinds blocking access to daylight and fresh air. There was no ventilation in the cell. The lack of air was aggravated by the detainees’ smoking. 16. There was no sink with a tap or toilet. The inmates had to use a bucket, which smelled very bad and was only emptied once a day in the morning. The bucket was not separated from the main area. The dining table was only 1.5 m away from the bucket. The detainees were provided with meals once a day. The quality of the food was completely unsatisfactory. There was not enough drinking water for everybody. 17. The detainees were allowed to take a shower once every ten days for fifteen minutes, and there were three shower heads for nine to ten people. The drains in the shower room did not work, and the water temperature was not adjustable. There was no changing room, the detainees had to undress before the shower and dress after it in a corridor. Only twice during the applicant’s detention in the IVS was he allowed to have outdoor exercise. 18. The ceiling of the cell was covered with mould. The cells were infested with bugs, lice, cockroaches and rats, and the administration did nothing to disinfect the facility. 19. It was cold in winter (there was a maximum temperature of 6˚C) and hot in summer (a maximum temperature of 45˚C). 20. The detainees were provided with neither bedding nor items of personal hygiene. They were also unable to buy them in the IVS. Mattresses had tar stains, and there was no possibility to wash clothes. Inmates were not provided with newspapers, reading material, or any information concerning their rights. The applicant was held in a cell with persistent offenders and ill persons. 21. On 15 June 2006 the Noyabrsk Town Court convicted the applicant of rape and sentenced him to six and a half years’ imprisonment in a “strictregime correctional colony”. 22. On 28 August 2006 the Yamalo-Nenetskiy Regional Court upheld the judgment of 15 June 2006 on appeal. Between 29 September 2006 and 16 June 2011 the applicant served his sentence in correctional colony IK-8 located in Labytnangi, in the Yamalo-Nenetskiy Region. 23. The applicant provided the following description of the conditions of his detention in the correctional colony, and submitted a detailed plan of the accommodation, with a description. The dormitory where he lived consisted of two sections measuring 132 and 144 sq. m respectively and accommodated 230 to 250 individuals. 24. The sanitary facilities were extremely busy: all the detainees had to use five taps and four toilets. There was not enough water. Water was only available from 5 a.m. to 7 a.m. and from 8 p.m. to 11 p.m. While there was no running water, the detainees had two water tanks at their disposal – one which contained drinking water and the other which contained water which was not drinkable. Per day, they could use 50 litres of drinking water and 300 litres of water which was not drinkable. This was clearly not enough, since the water in the tanks would be used up by about 10 a.m. The toilets smelled extremely unpleasant, since there was no water to flush them after 10 a.m. 25. The floor of the dormitory was based on a frame made of used railway sleepers impregnated with creosote. It smelled so strongly that the detainees had to leave the windows open permanently, even in winter, to get rid of the smell. The smell caused headaches and the open windows caused colds. The roof of the dormitory had at least eighteen visible leaks and there would be puddles on the floor if it rained. The dining room in the dormitory measured 32 sq. m and was equipped with one electric stove with four burners, one refrigerator and four sockets. The dormitory was infested with rats. 26. The detainees were allowed to take a shower once a week for fifteen minutes, and there were ten shower heads for up to forty people. Just before the applicant’s release, four extra shower heads were installed, but the time for washing was reduced to ten minutes. 27. According to the applicant, in 2008 the detainees were provided with winter clothes only at the end of November when the temperature dropped below minus 28˚C. 28. As regards the conditions of the applicant’s detention in IK-8 in Labytnangi, the Government submitted information which can be summarised as follows: 29. They also submitted that the toilets had been separated from the canteen and dormitory, and the units had been naturally ventilated and regularly disinfected. No failures in the water or electrical supply system had been identified. Detainees had taken showers weekly and had been provided with food and clothes “in accordance with the established schedule”. 30. On an unspecified date in 2010, while serving his sentence in the correctional colony, the applicant brought civil proceedings against the Noyabrsk police station and the Russian Ministry of Finance, seeking compensation in respect of non-pecuniary damage resulting from the poor conditions of his detention in the IVS in 2006. The applicant was not represented in those proceedings. 31. On 23 July 2010 the Noyabrskiy Town Court dismissed the applicant’s claim in his absence. 32. On 30 August 2010 the applicant lodged an appeal against the decision of 23 July 2010. He complained in particular that he had not been allowed to personally address the court, despite a request he had made to this effect, and he asked the appeal court to arrange for him to attend the appeal hearing. 33. On 25 November 2010 the Yamalo-Nenetskiy Regional Court upheld the decision of 23 July 2010 on appeal. It stated that the law did not make provision for transporting detainees to a civil court hearing. | 1 |
test | 001-184816 | ENG | DEU | CHAMBER | 2,018 | CASE OF DRIDI v. GERMANY | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Preparation of defence) | André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1982 and lives in Cadiz. 6. On 2 March 2009 the Hamburg District Court, after having served a summons on the applicant to appear at the address that he had at that time in Hamburg, convicted the applicant of assault and sentenced him to forty dayfines of 25 euros (EUR) each and allowed him to pay his fine in instalments in the light of his economic situation. The District Court had, at the applicant’s request, authorised Mr Arif – at that time still a law student – to act as defence counsel under Article 138 § 2 of the Code of Criminal Procedure (see paragraph 19 below). 7. The applicant and the public prosecutor lodged appeals. The prosecutor’s appeal was directed merely against the sentencing. Thereafter, the applicant moved to Spain to work as a chef in a hotel and communicated his new address to the court. 8. On 24 April 2009 the Hamburg Regional Court withdrew the authorisation of Mr Arif to act as defence counsel, while at the same time rejecting the application lodged by Mr Arif for the applicant to be released from the obligation to appear in person at the appeal hearing. This decision was served on the applicant in Spain. 9. Also on 24 April 2009 the Regional Court fixed the date for the oral hearing of the applicant’s appeal to 9.10 a.m. on 13 May 2009. It decided to serve the summons on the applicant via public notification because the applicant had moved abroad. The summons was displayed on the court’s noticeboard from 27 April until 12 May 2009. 10. On 12 May 2009 Mr Arif learned by telephone of the Court of Appeal’s decision of that same day to overturn the Regional Court’s decision in respect of his authorisation to act as counsel for the applicant and of the appeal hearing having been scheduled for the next morning. He applied by fax for the hearing to be adjourned, citing the fact that he was going to be out of town the next day. He furthermore asked that documents from the case file – in particular the public prosecutor’s appeal – be sent to him. The presiding judge ordered that a copy of that appeal and of the decision to serve the summons of the applicant by public notification be sent to the applicant’s lawyer. This proved impossible, as the lawyer’s fax machine had no receiving function. The lawyer was offered access to the file at the courthouse the following day at 8 a.m. (that is to say immediately before the hearing), which he declined, stating that he would be out of town. 11. On 13 May 2009 the Regional Court refused, in a separate decision, an application lodged by the applicant’s lawyer for the appeal hearing to be adjourned. It stated that the lawyer had waived his right to be summoned within the respective time-limit because he had known about the date of the appeal hearing (as evidenced by his fax of the previous day), and that the properly summoned applicant had failed to appear without providing any reason. Simultaneously, the Regional Court dismissed the applicant’s appeal without an assessment of the merits, in accordance with Article 329 of the Code of Criminal Procedure (see paragraph 19 below), because he had not appeared at the appeal hearing (without any sufficient excuse, and despite having been summoned), nor had he been represented by a lawyer in a permissible manner. 12. On 10 March 2010 the Regional Court dismissed the applicant’s application for the restoration of the status quo ante. It found that the requirements for the serving of a summons by means of public notification, as set out in Article 40 §§ 2 and 3 of the Code of Criminal Procedure (see paragraph 19 below), had been met. The applicant’s lawyer had waived his right to be summoned, and his application for an adjournment had not relied on the failure to comply with the time-limit for serving a summons but had rather invoked scheduling problems, which he had not described in greater detail. 13. On 15 April 2010 the Court of Appeal upheld that decision. It considered that the applicant had been properly summoned to the appeal hearing because the requirements for service by public notification, as set out in Article 40 § 2 of the Code of Criminal Procedure, had been met. The summons to attend the hearing before the District Court had been served on the applicant’s previous address in Germany and he had lodged the appeal in question. As regards his interest in having the District Court’s judgment reviewed, it had been his responsibility to ensure that it was possible for the summons to appear at the appeal hearing to be served in Germany. As a result of his move to Spain it had not been possible to serve the summons at his previous address in Hamburg. It had thus been acceptable for the summons to be served by public notification. There had been neither an obligation to undertake an attempt to serve the summons at the applicant’s new address abroad prior to serving it via public notification nor one to notify him at that address that the summons had been served by public notification. The applicant had also not specifically authorised (under the first sentence of Article 145a § 2 of the Code of Criminal Procedure) his lawyer to receive summonses (see paragraph 19 below). Moreover, the applicant had not convincingly shown that he had been prevented through no fault of his own from appearing at the appeal hearing, as required by Article 44 § 1 of the Code of Criminal Procedure (see paragraph 19 below), because the applicant’s lawyer had not provided an affidavit to support his claim that he had advised the applicant, on 12 May 2009, that the latter did not need to attend the hearing because he had not been summoned. As his appearance in person had been ordered (see paragraph 8 above), it had not been possible to carry out the appeal hearing in his absence. 14. On 16 July 2010 the Court of Appeal rejected an appeal on points of law lodged by the applicant against the Regional Court’s judgment of 13 May 2009 as ill-founded, finding that the review of the Regional Court’s judgment had not revealed any legal errors that had been detrimental to the applicant. 15. On 16 November 2010 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant, without providing reasons (no. 2 BvR 2147/10). The decision was served on the applicant’s lawyer on 10 December 2010. 16. Following communication of the case and unsuccessful friendly settlement negotiations, on 8 July 2016 the Government informed the Court of their intention to resolve the issue raised by the application. They produced a unilateral declaration, in which they acknowledged violations of Article 6 §§ 1 and/or 3 (c), as well as Article 6 § 3 (b) and (c) of the Convention and offered to pay the applicant a sum to cover any pecuniary and non-pecuniary damage together with any costs and expenses. The Government requested that the Court strike out the application in accordance with Article 37 § 1 of the Convention. 17. By a letter to the Court of 30 August 2016 the applicant indicated that he was not satisfied with the terms of the unilateral declaration. The aim he pursued with the present application was a reopening of the criminal proceedings against him and a subsequent acquittal. He argued that, under domestic law, such a reopening could not be achieved if the Court struck the case out of its list, but required a judgment finding a violation. Furthermore, the compensation offered was insufficient. 18. By a submission of 14 October 2016 the Government confirmed that there was – and in fact, there still is – no case-law of the domestic courts regarding whether Article 359 no. 6 of the Code of Criminal Procedure, which provides for the reopening of criminal proceedings following a judgment of the Court finding a violation (see paragraph 19 below), also applies to violations acknowledged by the Government by way of a unilateral declaration. This question was for the domestic courts to assess. They acknowledged that the provision had, in practice, been construed narrowly. | 1 |
test | 001-142346 | ENG | ROU | ADMISSIBILITY | 2,014 | CIOBAN v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Marinel Cioban, is a Romanian national who was born in 1953 and lives in Cluj-Napoca. He was represented before the Court by Mr M. Giurgea, a lawyer practising in Cluj-Napoca. 2. The Romanian Government (“the Government”) were represented by their Agents, Ms I. Cambrea and Ms C. Brumar, of the Ministry of Foreign Affairs. 3. On 24 December 2005 the applicant’s son was involved in a car accident. His car was crashed into by another vehicle travelling in the opposite direction and he was killed instantly. 4. On the same date the Prahova Police Office opened a criminal investigation in order to determine the circumstances of the accident. The applicant claimed compensation for pecuniary and non-pecuniary damage in connection with his loss. 5. In January 2006 the Ploieşti Prosecutor Office brought criminal proceedings for unintentional killing against B.F., allegedly the driver of the vehicle which had caused the accident. 6. Between January 2006 and May 2007 the Ploieşti Prosecutor’s Office heard the parties and the witnesses, collected statements and carried out a polygraph test on B.F. Following contradictory statements by the two persons who had been in the car which caused the accident, several technical and forensic expert reports were commissioned in order to establish who the driver was. 7. On 31 May 2007, as a result of the contradictory statements regarding who had been driving the vehicle at the time of the accident, the Ploieşti Prosecutor’s Office decided to extend the criminal charge of unintentional killing to B.S., the second occupant of the vehicle which had crashed into the applicant’s son’s car. On the same date, the Prosecutor’s Office extended the charges against B.F., charging him additionally with aiding an offender. 8. In September 2007 the applicant sent letters to the Ploieşti Prosecutor’s Office and the Romanian Ministry of Justice complaining of lack of promptness in the criminal investigation, especially given that the case, in his opinion, was not complex, and asked the domestic authorities to expedite the proceedings. His letters remained unanswered. 9. In September 2007 the Ploieşti Prosecutor’s Office sent the criminal file back to the Prahova Police Office, requesting it to carry out a polygraph test on B.S. It also ordered that a new expert technical report be prepared and that a confrontation be conducted between the two occupants of the vehicle in order to identify the driver of the car. 10. On 25 April 2008 the applicant asked the Prahova Police Office and the Ploieşti Prosecutor’s Office to provide him with copies of the relevant documents from the criminal investigation file in order for him to be able to submit them in support of his application to the Court. He also asked to be informed of the state of the proceedings and to be notified of any procedural act his lawyers and he could attend. On 28 May 2008 the Ploieşti Prosecutor’s Office informed the applicant that he could attend a supplementary expert technical investigation that was scheduled to be carried out on 6 June 2008. 11. On 28 August 2008 the Ploieşti Prosecutor’s Office issued an indictment charging B.S. with unintentional killing and B.F. with aiding an offender. 12. By a judgment of 2 December 2009 the Ploieşti District Court convicted B.S. and B.F. as charged and sentenced them to four and three years’ imprisonment respectively. It also allowed the applicant’s just satisfaction claims in part and ordered B.S. to pay the applicant 5,600 lei in respect of pecuniary damage, 10,000 lei in respect of non-pecuniary damage, and 5,900 lei in respect of costs and expenses. The parties appealed against the judgment. 13. By a judgment of 19 May 2010 the Prahova County Court increased the amount to be awarded to the applicant in respect of non-pecuniary damage to 30,000 lei and upheld the remainder of the Ploieşti District Court’s judgment. The parties lodged appeals on points of law (recurs) against that judgment. 14. On 2 March 2011 the Ploieşti Court of Appeal rejected the appeals and upheld the judgment of 19 May 2010. 15. The relevant provisions of the Criminal Code concerning lifethreatening crimes are described in Pantea v. Romania (no. 33343/96, § 154, ECHR 2003-VI). | 0 |
test | 001-160431 | ENG | UKR | CHAMBER | 2,016 | CASE OF KARPYLENKO v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary | 5. The applicant was born in 1957 and lives in Kyiv. 6. On 26 December 2009 the applicant’s twenty-five-year-old son, K., was arrested by the Kyiv Shevchenkivskyy District Police Department on suspicion of robbery. 7. On 27 December 2009 K. underwent a medical examination, which did not reveal any injuries. 8. On 29 December 2009 the Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) remanded him in custody pending trial. 9. On 30 December 2009 K. was placed in the Kyiv Pre-Trial Detention Centre (“the SIZO”). 10. On 22 March 2010 he complained to the court that the investigator had subjected him to physical and psychological pressure in order to make him confess to a crime which he had not committed. His complaint was referred to the Shevchenkivskyy District Prosecutor’s Office (“the Shevchenkivskyy Prosecutor’s Office”). 11. At 9.30 a.m. on 10 April 2010 K. was admitted to Kyiv City Emergency Hospital, where he was diagnosed with a closed abdominal injury, rupture of the spleen, retroperitoneal haematoma, a closed chest injury, laceration (tissue rupture) of the right lung, left-sided pneumonia, post-traumatic anaemia, and fourth-degree haemorrhagic shock (the most serious on a scale of one to four, entailing critical blood loss of over 40%). 12. On 10 and 12 April 2010 K. underwent surgery twice in respect of the above-mentioned injuries and his spleen was removed. 13. On an unspecified date the applicant complained to the prosecuting authorities that her son had been physically assaulted in the SIZO on 8 April 2010. 14. On 23 April 2010 the Shevchenkivskyy Prosecutor’s Office refused to institute criminal proceedings against police officers in respect of K.’s ill-treatment for lack of corpus delicti in respect of their actions. 15. On 28 April 2010 K. was discharged from hospital and placed in the SIZO’s medical unit, where he remained until 18 June 2010. 16. On 3 June 2010 the Kyiv City Police Department completed the internal investigation in respect of the applicant’s complaint regarding the alleged ill-treatment of her son and found it to be without any basis. 17. On 8 June 2010 the newspaper “Segodnya”, issued in the Kyiv region, published an article under the headline “A bad [police] station” («Нехороший участок») about the alleged ill-treatment of the applicant’s son in the Shevchenkivskyy police station in spring 2010. The author relied, in particular, on the statements of one of K.’s cell-mates. A similar article titled “Another incident in the Shevchenkivskyy police station” («Новое ЧП в Шевченковском РУВД») appeared in the internet media outlet “Levyy Bereg”. 18. On 10 June 2010 the Shevchenkivskyy Prosecutor’s Office overruled its decision of 23 April 2010 and decided that further investigation was required. More specifically, K. had to be questioned as to who exactly had subjected him to ill-treatment in the SIZO in April 2010. 19. On 10 June 2010 the investigator also questioned the applicant’s son. K. contended that on 26 December 2009, when he was arrested, police officers had hit him in the stomach. He further stated that the investigator dealing with his case had also hit him in the stomach once in March 2010. According to K., these two beatings had necessitated his urgent medical treatment on 10 April 2010. K. said that he did not understand why his mother had stated that he had been subjected to ill-treatment on 8 April 2010 (see paragraph 13 above). 20. On 21 June 2010 the investigator who was in charge of K.’s criminal case was also questioned. He denied ever having seen K. in March 2010, let alone having physically assaulted him. 21. On 8 July 2010 the Shevchenkivskyy Prosecutor’s Office once again refused to institute criminal proceedings against the police officers in question, having found no evidence of criminal conduct. The decision not to prosecute noted that K. had not complained of any ill-treatment during his detention, and that his medical examination on 27 December 2009 had not revealed any injuries (see paragraph 7 above). Following his hospitalisation on 10 April 2010, K. had mentioned to a doctor that he had been physically assaulted some three days earlier, and the doctor had then stated to the investigator that K.’s injuries had been sustained no more than two days before his admission to hospital. According to his medical file, K.’s injuries had originated from blows to his back with blunt objects one to twelve hours prior to his admission to hospital (that is, during the night of 9 to 10 April 2010). On the basis of the above information, the Shevchenkivskyy Prosecutor’s Office concluded that the allegation regarding K.’s illtreatment was unsubstantiated. 22. On 3 August 2010 an official of the Kyiv City Prosecutor’s Office (“the Kyiv Prosecutor’s Office”), to which the investigation had been transferred meanwhile for an unknown reason, also questioned K. This time, he stated that he had only been ill-treated on 26 December 2009, but never thereafter. 23. On 25 August 2010 eleven inmates with whom K. had shared a cell in the SIZO were also questioned. They said that he had felt unwell on the night of 9 to 10 April 2010, and that an ambulance had been called for him on the morning of 10 April 2010. They also submitted that nobody had been violent towards him or had put him under any psychological pressure. 24. On 9 September 2010 the SIZO’s medical assistant (фельдшер), who had been on duty at the time of the events, was questioned as part of the investigation. He stated that he had been called to cell no. 36, where K. had been held, at 8.45 a.m. on 10 April 2010. K. had complained of weakness, vertigo and blurred vision. He had not alleged any ill-treatment and a visual examination had not revealed any injuries. He had had low blood pressure. The medical assistant said that he had provided K. with the necessary medical assistance and had reported the matter to the doctor on duty. The doctor on duty at the time of the events made a similar statement. 25. On 22 October 2010 an official from the Kyiv Prosecutor’s Office questioned the ambulance paramedics who had been called to assist K. They did not remember the circumstances. 26. On 4 November 2010 the Kyiv Prosecutor’s Office questioned K. again. He stated that Shevchenkivskyy police officers had physically assaulted him following his arrest on 26 December 2009. He considered that the sudden deterioration in his health on 10 April 2010 had been the consequence of that ill-treatment. 27. From 8 November 2010 to 28 January 2011 a forensic medical expert evaluation of K.’s medical file was carried out, with a view to clarifying exactly how and when he had sustained his injuries and how serious those injuries had been. The expert concluded that K. had sustained an insignificant spleen trauma about a month prior to undergoing surgery, on around 10 March 2010. More specifically, he had sustained a splenic parenchyma rupture which had presented no major danger and would have healed normally. However, about twelve hours before surgery (at about 4 a.m. on 10 April 2010) K. had sustained a serious non-penetrating stomach injury resulting from a blow to the left side of his back with a blunt object. As a result, he had sustained a haemoperitoneum, a partial rupture of the diaphragm and trauma of the spleen. 28. On 29 December 2010 the applicant’s son signed a form of authority, authorising Mr Zarutskyy (the lawyer who represented the applicant before the Court – see paragraph 2 above) to represent him in proceedings before the Court. He did not, however, lodge an application with the Court on that occasion. According to the applicant, her son did intend to lodge an application regarding both his ill-treatment and the investigation into that allegation. 29. In February 2011 K.’s lawyer challenged the refusal to institute criminal proceedings of 8 July 2010 (see paragraph 21 above) with the Kyiv Prosecutor’s Office and before the Shevchenkivskyy Court. He submitted, in particular, that the origin of K.’s injuries while he had been under the authorities’ control had never been explained. 30. On 10 March 2011 the Kyiv Prosecutor’s Office, relying on the findings of the forensic medical expert report of 28 January 2011 (see paragraph 26 above), opened a criminal case in respect of unidentified individuals who had caused K. grievous bodily harm. The investigation was entrusted to the Shevchenkivskyy Police Department. 31. On 7 July 2011 the Shevchenkivskyy Court quashed the decision of the Shevchenkivskyy Prosecutor’s Office of 8 July 2010 and remitted the case for additional investigation. 32. Between 31 May and 25 August 2011 another forensic medical expert evaluation was carried out. It confirmed the findings of the earlier expert report of 28 January 2011 (see paragraph 27 above), but added that a fall could not be ruled out as a possible cause of the injuries. 33. On 26 August 2011 the Shevchenkivskyy Prosecutor’s Office issued another refusal to institute criminal proceedings against the police officers in question for lack of corpus delicti in their actions. 34. On 30 September 2011 K. was assigned victim status in the criminal investigation launched on 10 March 2011. On the same date the investigator of the Shevchenkivskyy Police Department questioned him. K. maintained his earlier version of events, namely that his ill-treatment had consisted of the following two episodes: Shevchenkivskyy police officers physically assaulting him following his arrest on 26 December 2009, and the investigator in charge hitting him once in the stomach at the end of March 2010. 35. On 30 September 2011 the SIZO administration sent to the investigator the list of the staff members who had been on duty during the night of 9 to 10 April 2010. As regards the list of K.’s cell-mates at the time, the administration informed the investigator that no records were kept in that regard. 36. On 7 November 2011 K., who had been transferred from the SIZO to a civilian hospital and who was suffering from HIV, tuberculosis and a number of concomitant diseases, died (see paragraphs 43-51 below). 37. On an unspecified date in November 2011 the applicant was granted status as K.’s successor in the criminal investigation into his ill-treatment. She was represented by the same lawyer who had earlier represented K. 38. On 9 December 2011 the Chief of the Shevchenkivskyy Police Department informed the applicant’s lawyer that the investigation, which had been initiated on 10 March 2011 (see paragraph 30 above), was ongoing. 39. On 30 March 2012 the applicant enquired with the Shevchenkivskyy Police Department about the progress of the investigation. 40. On 31 July 2012 the Kyiv City Investigation Department informed her that the investigator in charge had been disciplined for his failure to respond to the above inquiry. 41. It is not clear whether any investigative measures were implemented between 2012 and 2014. 42. On 7 March 2014 the investigator of the Shevchenkivskyy Police Department made an entry in the Unified Register of Pre-Trial Investigations about the assault on K. causing grievous bodily harm. That constituted a new procedure for initiating a pre-trial investigation under the new Code of Criminal Procedure with effect from 19 November 2012. 43. Between 14 and 17 May, and 18 and 23 June 2010, when he was a detainee in the SIZO, K. was examined at the Kyiv City AIDS Centre at his request. He tested positive for HIV on both occasions. 44. According to the information submitted by the Government, between 24 June 2010 and 20 April 2011 K.’s health remained stable and he did not seek medical assistance. 45. On 20 April 2011 K. had his lungs X-rayed and was diagnosed, for the first time, with tuberculosis of the right lung. It was unclear how advanced the tuberculosis was. According to the Government, he was prescribed preventive treatment for two to three months. 46. On 23 May 2011 K.’s lawyer enquired with the management of the SIZO about his client’s condition. He asked, in particular, for clarification as to whether K. had been diagnosed with tuberculosis while in detention, and requested copies of the relevant documents. 47. On 8 June 2011 the SIZO deputy governor and the chief of the medical unit replied that, following a planned X-ray that day, K. had been diagnosed with infiltrative tuberculosis of the right lung and had been transferred to the SIZO’s medical unit for treatment. In another letter (dated 28 November 2011) from the SIZO management to the applicant’s lawyer (see also paragraph 52 below), it was stated that on 8 June 2011 K. was also diagnosed as having HIV, chronic gastritis, hepatitis in remission and a drug addiction. In addition, he was classed as being in recovery following the removal of his spleen. 48. According to an extract from K.’s medical records, he was examined repeatedly by the SIZO’s doctors between June and October 2011. Each record begins with the statement that K.’s complaints remained the same, without specifying of what he complained. The records of 28 July and 9 September 2011 further note that K. complained of weakness. Furthermore, it was recorded that K. had complained of periodic coughing with purulent sputum during his examinations on 7 July and 15 October 2011. From 18 October 2011 onwards a deterioration in K.’s health was noted. On 20 October 2011 an ambulance was called for him. 49. As indicated in the letter sent by the SIZO management on 28 November 2011 in reply to the applicant’s lawyer’s inquiry of 13 October 2011, K. had an X-ray which revealed that the treatment of his tuberculosis was evolving positively. A decision was made to continue that treatment. 50. On 20 October 2011 K. was taken to Kyiv City Hospital no. 5, where the following diagnoses were made: infiltrative tuberculosis of the right lung, HIV in an unclear phase, meningitis caused by HIV, chronic hepatitis and gastritis in remission. K. was also classed as being in recovery following the removal of his spleen. 51. On 7 November 2011 K. died in the hospital. 52. In a letter of 28 November 2011 to the applicant’s lawyer the SIZO management noted that they had previously asked the Kyiv City Court of Appeal, which was dealing with the criminal case against K., to either accelerate the examination of that case or release K. on health grounds. However, they had not received any reply. 53. On 8 November 2011 the investigator of the Svyatoshynskyy District Police Department inspected K.’s body in the hospital. According to the report on “the inspection of the scene of the incident”, there was no indication of a violent death. 54. On the same date, the applicant asked the police to transfer the body to a mortuary, with a view to establishing the cause of death. 55. According to K.’s death certificate, which was issued on 10 November 2011, his death had been caused by acute heart failure, HIV and multiple concomitant illnesses. 56. The autopsy report, which was also issued on 10 November 2011, specified that the immediate causes of death had been a brain tumour, pulmonary and heart failure resulting from “express autointoxication following cryptococcal meningoencephalitis, macrofocal overwhelming subtotal bilateral pneumonia and focal pulmonary tuberculosis of a person suffering from HIV and drug addiction”. The report also noted that K. had had “shock kidneys”, cachexia, oropharyngeal candidiasis, and albuminous degeneration of the tissues of the kidneys, cardiac muscle and liver. 57. The applicant made a complaint to the prosecuting authorities regarding her son’s premature death and requested an investigation. 58. On 16 November 2011 the Svyatoshynskyy District Police Department refused to open a criminal investigation into the matter, having concluded that there was no indication of a criminal offence. 59. On 23 December 2011 the Svyatoshynskyy District Prosecutor’s Office overruled that decision on the grounds that it was based on a superficial investigation. 60. On 31 December 2011 the investigator once again refused to open a criminal case in relation to K.’s death. Relying on the scene inspection report of 8 November 2011 and the death certificate of 10 November 2011 (see paragraphs 53 and 55 above), he considered that there was no third-party involvement in the death. 61. On 16 July 2012 the applicant complained to the General Prosecutor’s Office about the ineffectiveness of the investigation. In particular, she submitted that the adequacy and appropriateness of the medical care provided for her son had never been assessed. She noted that there had been no medical monitoring or treatment of K. as regards his HIV. Furthermore, while the HIV diagnosis presupposed a high risk of tuberculosis, K. had not had an X-ray until almost a year after he had tested positive for HIV. The applicant also complained that the intervals between the X-ray sessions had been unreasonably long. Thus, after his X-ray on 6 June 2011 K. had subsequently not had an X-ray until 13 October 2011, whereas a repeat X-ray should have been performed within a two-month time period. Furthermore, although K.’s treatment for tuberculosis had been unsuccessful, it had been continued, and his resistance to the medications prescribed had never been verified. Lastly, the applicant complained that the authorities had not provided her with all the information concerning her son’s health while he had still been alive, despite the numerous inquiries made by her lawyer. In particular, she had only found out about her son’s HIV after his death. 62. On 20 July 2012 the General Prosecutor’s Office forwarded the above complaint to the Kyiv Prosecutor’s Office. 63. On 15 August 2012 the Svyatoshynskyy Prosecutor’s Office wrote to the applicant saying that her complaint concerning her son’s death and the allegedly inadequate medical care he had received had already been investigated. As a result, it had been decided on 31 December 2011 that there were no grounds for opening a criminal case (see paragraph 60 above). It remained open to the applicant to challenge that decision. 64. There is no information in the case file about any subsequent developments. | 1 |
test | 001-156524 | ENG | NLD | ADMISSIBILITY | 2,015 | A.A.Q. v. THE NETHERLANDS | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr A.A.Q., is an Afghan national, who was born in 1956 and is currently staying in Germany. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms J.A. Younge, a lawyer practising in Amsterdam. 2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 5 February 1998, the applicant entered the Netherlands where he applied for asylum. On 7 February 1998, the applicant was interviewed about his identity, nationality and travel itinerary. He stated, inter alia, that he hailed from Kabul and that he had travelled to the Netherlands via Pakistan and Belgium. 5. On 4 June 1998 and 3 May 1999, the applicant was interviewed about his reasons for seeking asylum (nader gehoor). He stated that he had made a career in the Afghan army from 1984 to 1994, during which period the country had been ruled by the Communist People’s Democratic Party of Afghanistan (“PDPA”). He had joined the PDPA’s youth organisation at the age of 16 or 17 and become a full member in 1979. Having studied car mechanics in Afghanistan and graduated in 1978, the applicant had taken up a six-month internship at the Engineering Directorate of a Ministry in order to avoid military service. On this basis, he had been transferred, for a job, to the President’s Bureau where he had been assessed with a view to possibly offering him a higher education in the Soviet Union. Having passed that selection, the applicant had been sent to one of the Soviet republics from March 1980 until March 1984 to study rocket science. Later, the applicant had also taken a nine-month political course in the army, in the framework of continued education as an officer. 6. From 1985 to around 1987 and from 1990 to 1992, the applicant had been deputy of the Political Affairs Division in one of the Artillery Brigades of the Ministry of Defence; during the first period in a maintenance company and during the second period in one of the battalions. In the latter function he had been the superior of three deputies of the Political Affairs Division as well as Deputy Commander of the battalion. From 1987 to 1990, the applicant had also held the position of president of the (political) Officers’ Club. 7. The applicant had been promoted several times and his last held rank had been that of major. The applicant indicated that his tasks as deputy of the Political Affairs Division had involved, inter alia, the creation and dissemination of propaganda and the teaching of politics to soldiers. 8. On 6 March 1994, after the Mujahedeen had come to power, the applicant had left Kabul for Mazar-e-Sharif because he had no longer felt safe. Many of his friends had been arrested by the Mujahedeen. On the way to Mazar-e-Sharif, the bus in which he had been travelling had been stopped at a checkpoint. The applicant had been arrested by the Mujahedeen and kept in prison in Kabul for six months, during which period he had been interrogated about his role in the coup attempt and tortured. After that, the Mujahedeen had sent him to the war front to dig trenches and load grenade launchers. 9. On 27 or 28 September 1996, he had escaped from the prison in which he was kept by simply walking away when the prison guards had abandoned the prison in the wake of the capture of Kabul by the Taliban. He had then gone to his home village, where he had gone into hiding at his father’s house and where he had remained until his departure from Afghanistan on 26 December 1997. During that time, his father had been hassled by the Taliban about the family’s involvement with the PDPA (the applicant’s entire family had been PDPA members). The applicant submitted that he feared persecution from the side of the Mujahedeen and later, after 1996, the Taliban. 10. The applicant’s wife, born in 1958, and their eight children – who were born between 1980 and 1993 – as well as a number of members of the applicant’s family-in-law have all, at different points in time, been granted residence rights in the Netherlands. His eldest son had fled from Afghanistan via Pakistan to the Netherlands in 1993 together with the applicant’s mother-in-law and a number of the applicant’s wife’s brothers. This son, who was granted a residence permit in the Netherlands for compelling humanitarian reasons on the basis of the then general situation in Afghanistan, has since obtained Netherlands nationality. The applicant’s wife and four of the children fled from Afghanistan via Pakistan, Iran and Russia to the Netherlands, where on an unspecified date they were granted residence permits under the policy rules on extended family reunion (verruimde gezinshereniging). The remaining three children were also granted residence permits. On unspecified dates, the applicant’s oldest four children obtained Dutch nationality, retaining their Afghan nationality. The applicant’s spouse currently holds a residence permit for continued residence stay (voortgezet verblijf). 11. The Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum application on 13 February 2001. Having noted three official country reports (ambtsberichten) on the general political and human rights situation in Afghanistan drawn up by the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) in 1998, 1999 and 2000, the Deputy Minister found, in the relevant part, that the situation in Afghanistan at that moment was not such as to qualify all asylum seekers from that country for asylum and that, therefore, the applicant had to demonstrate that he had a personal and well-founded fear of persecution in Afghanistan. 12. The Deputy Minister considered that the grounds adduced by the applicant – amounting in essence to him being searched for by the Taliban and/or Mujahedeen due to his past function in the army – did not provide any basis for assuming that the applicant would have to fear persecution upon his return to Afghanistan. The Deputy Minister held in this regard that the applicant had not established that the Taliban were aware of his past activities, that he had ever been in contact with the Taliban or that there would be any other reasons relating to his past activities that would attract the Taliban’s negative attention. According to the Deputy Minister, the applicant’s claims were of a general and speculative nature. 13. Furthermore, the Deputy Minister considered that the applicant had not, either as an army officer during communist rule, or as a member of the PDPA, held a political post at a level at which he would have exercised a decisive influence on policy. According to the aforementioned official country reports, the Taliban were in general not interested in former communists who had been active at that level only. Moreover, rather than leave Afghanistan immediately after his escape from detention, the applicant had chosen to remain for an additional year in an area that was already under Taliban control at that time. The Deputy Minister considered implausible that a person who allegedly feared persecution by the authorities would go into hiding with somebody who himself was experiencing regular problems with those same authorities. This also applied to the applicant’s claim that he feared persecution by the Taliban as a result of the problems he allegedly had with the Mujahedeen. As the power base of this latter movement had in the meantime significantly decreased, the Deputy Minister held that the applicant should be able simply to evade any problems he might expect to experience from that side. In respect of the applicant’s reliance on Article 3 of the Convention, the Deputy Minister found that his account provided insufficient indications to assume that he, if returned to his country of origin, would run a real risk of being subjected to treatment in breach of that provision. 14. On 9 April 2001 the applicant lodged an objection (bezwaar) against this decision with the Deputy Minister. 15. On 17 September 2001, the applicant was informed that his case file had been transmitted to the 1F Unit (see paragraph 47 below) of the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; “IND”) as his asylum account, in particular his professional activities as a career military, gave reasonable cause to suspect that Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 (“the 1951 Refugee Convention”) might apply to his case. 16. The applicant’s asylum application was re-examined in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in communist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether and, if so, which former employees of those services should be regarded as implicated in human rights violations. According to this official report, Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the military Khadimate Atal’at-e Dowlati (“KhAD”) or, subsequently, the Wazarat-e Amaniat-e Dowlati (“WAD”). 17. On 5 September 2003, an additional interview was held with the applicant on the applicability of Article 1F of the 1951 Refugee Convention to his case. 18. On 1 December 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor to the Deputy Minister of Justice) dismissed the applicant’s objection. She found, inter alia, that the applicant constituted a danger to public order (openbare orde), as serious reasons had been found for believing that he had committed crimes referred to in Article 1F of the 1951 Refugee Convention. Although the Minister attached credence to the applicant’s statements in terms of his positions and career within the Afghan army, the applicant’s description of his tasks was deemed to be inaccurate. Further, on the basis of a person-specific official report (individueel ambtsbericht) issued by the Ministry of Foreign Affairs on 14 October 2003, the Minister found that, at the relevant time, the Political Affairs departments of the Afghan army consisted solely of highly loyal and skilled professional soldiers, who wielded a large amount of influence within the organisation and who, as informants, worked closely together with the KhAD. They were thus inextricably connected to the frequent arrests, disappearances and/or executions of disloyal members of the army by the KhAD. The Minister further emphasised the widely known cruel character of the KhAD, the grave crimes committed by its officers and the “climate of terror” it had spread throughout the entire Afghan society, including the army. In this regard the Minister relied on the general official report of 29 February 2000. 19. Having established, on the basis of elaborate argumentation and documentation, that those involved in the KhAD and the Political Affairs Divisions of the Afghan army were likely to fall within the scope of Article 1F of the Refugee Convention, the Minister proceeded to an analysis of the applicant’s individual responsibility under that Convention on the basis of the prescribed and so-called “personal and knowing participation test” and eventually rejected the applicant’s objection by holding Article 1F against him. The Minister indicated that consequently, pursuant to the provisions of sections 3.107 and 3.77 of the Aliens Decree (Vreemdelingenbesluit), the applicant was ineligible for a residence permit for asylum or any other ground. 20. In so far as the applicant relied on Article 3 of the Convention, the Minister held that it was for the applicant to show that there were concrete reasons, connected to personal facts and circumstances, justifying the conclusion that he would run a real risk of treatment contrary to that provision if returned to Afghanistan. The Minister found that the applicant had failed to substantiate such grounds, since he had neither indicated that anyone would be actively looking for him in Afghanistan nor furnished any reasons due to which he would draw the local authorities’ particular attention. 21. Lastly, and as regards Article 8 of the Convention as invoked by the applicant, the Minister held that, although there was family life between the applicant and his relatives residing in the Netherlands, the State’s interest in expulsion of individuals who endanger public order prevailed over the personal interests of the applicant. 22. The applicant’s appeal against this decision was rejected by judgment of 17 May 2005 by the Regional Court (rechtbank) of The Hague, sitting in Alkmaar. Pursuant to section 8:79 of the General Administrative Law Act (Algemene Wet Bestuursrecht), this judgment was sent to the applicant on 30 May 2005. 23. In the appeal proceedings before the Regional Court, the applicant had disputed the accuracy of the official reports, drawn up by the Ministry of Foreign Affairs, which the Minister had relied on in his case, and he argued that the information contained in those reports did not apply to him. At the request of the Minister of Foreign Affairs and with the parties’ consent, the Regional Court was granted access to the materials underlying the person-specific official report of 14 October 2003 without these materials being disclosed to the applicant. It found that the report provided information in an unbiased, objective and transparent manner, and accepted that the conclusions drawn in the official report were sufficiently supported by the underlying materials. The applicant’s unsubstantiated claim that the information contained in the person-specific official report did not necessarily apply to each person who had worked at the Political Affairs department was insufficient for the Regional Court to doubt the report’s accuracy. The Regional Court further found that it had not appeared that there were any concrete indications to doubt either the person-specific official report or the official report of 29 February 2000. 24. The Regional Court held that the Minister could reasonably have established the facts relating to the applicant’s activities for the Political Affairs Division of the Afghan Ministry of Defence in the way that she had done. In addition, she could reasonably have dismissed as implausible the applicant’s claim that he had not been aware of human rights abuses committed by KhAD/WAD until he came to the Netherlands, given that the KhAD/WAD’s criminal character was generally known in Afghanistan at the time, according to the official report of 29 February 2000. 25. As regards the applicant’s reliance on Article 3 of the Convention, the Regional Court concurred with the Minister on all points that the applicant had failed to substantiate the existence of a real risk of treatment contrary to that provision. As to Article 8 of the Convention, the Regional Court held that this provision could not play a role in asylum proceedings, notwithstanding the fact that the Minister had examined the applicant’s arguments in this context. 26. The applicant’s further appeal to the Administrative Jurisdiction Division of the Council of the State (Afdeling Bestuursrechtspraak van de Raad van State) was declared inadmissible on 24 October 2005. The Division found that it had no jurisdiction as, by virtue of section 120 of the Aliens Act 2000 (Vreemdelingenwet 2000), the Division only had jurisdiction over decisions taken after the entry into force of that Act on 1 April 2001 whereas the initial decision by the Deputy Minister had been taken on 21 March 2001. No further appeal lay against this decision. 27. On 12 August 2008, the applicant applied for a residence permit for the purpose of exercise of family life within the meaning of Article 8 of the Convention. This application was rejected on 18 December 2009 by the Deputy Minister of Justice; the successor to the Minister for Immigration and Integration. The applicant’s objection against this decision was rejected on 17 June 2011 by the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; the successor to the Deputy Minister of Justice). 28. The applicant’s appeal against the decision of 17 June 2011 was rejected on 2 March 2012 by the Regional Court of The Hague, sitting in Amsterdam. It noted that it appeared from the decision of 1 December 2003 that the applicant was associated with extrajudicial arrests and extrajudicial detention of persons, the torture of persons, extrajudicial execution of persons, and the commission of assassinations, because he – on account of his work for the Political Affairs Division – had facilitated the activities of KhAD/WAD. It further noted that this decision had become final. 29. As regards Article 8, the Regional Court held: “The court considers that, according to settled case law of the European Court of Human Rights, regardless of whether there is a positive or negative obligation, a fair balance must be struck between, on the one hand, the interests of the alien and, on the other, Netherlands general interest. In this balancing exercise, the [Minister] enjoys a certain margin of appreciation. The court notes that, in his assessment, the [Minister] has taken into account the criteria formulated in the judgments of the European Court of Human Rights of 2 August 2001 in the case of Boultif and 18 October 2006 in the case of Üner. The court accepts that it was reasonable for the [Minister], in striking this balance in the framework of Article 8, to find against the [applicant]. To this end, the court considers that it was not unjust that the [Minister] attached weight to the suspicion of the [applicant’s] involvement in human rights violations. The court does not follow the [applicant’s] argument that, in assessing whether he should be granted a residence permit on the basis of Article 8, insufficient factual research has been made into his involvement in the commission of crimes referred to in Article 1F of the Refugee Convention. ... The court sees no ground for holding that only crimes found proven according to criminal law standards may be held against [the applicant]. The [Minister could also hold against the [applicant] that [the latter] has accepted a deal (transactie) proposed by a public prosecutor in order to avoid the lodging of formal criminal proceedings for shoplifting. This is not altered by the fact, as confirmed by the [Minister] at the hearing, that this has a lighter weight. It further has been taken into account in the balancing exercise that the [applicant] has resided in the Netherlands for 13 years, but he has never had lawful residence based on a valid residence permit and his residence status has always been precarious. Although the [applicant’s] spouse is living here and holds a valid residence permit, no objective obstacle has appeared to exercise the family life with her elsewhere. His spouse holds Afghan nationality. The argument that his spouse cannot return to Afghanistan for asylum-related reasons but that these reasons have never been examined because she had already been granted a regular [i.e. not asylum-based] residence permit does not succeed. To the extent that reference has been made to the [applicant’s] asylum account, it has been established in the proceedings on his asylum request that he has not demonstrated that he has to fear treatment in breach of Article 3 nor that for any reason or other he will have to expect the particular attention of the authorities upon his return. To the extent that the [applicant’s] spouse claims to have independent, separate asylum-related problems, this has not been substantiated. The report of 9 August 2011 by M.D., psychologist, concerning the spouse’s mental health state is insufficient for finding that there is an objective obstacle. It is true that it appears that she suffers from depression, a dissociative and a post-traumatic stress disorder, but it does not appear that for this reason she would be unable to go to Afghanistan with the [applicant]. ... Noting the fact that the [applicant] and his wife married in the period during which the [applicant] worked for the Political Affairs Division, the [Minister] has justly not found it plausible that his wife was unaware of the facts held against the [applicant] in the framework of Article 1F [of the 1951 Refugee Convention].” As regards asylum-related arguments advanced by the applicant, the Regional Court held: “... the Court is of the opinion that the [applicant’s] argument fails. Noting the strict separation between asylum-related and regular [i.e. non-asylum-related applications for a residence permit] that follows from the system of the Aliens Act 2000, the Minister has justly referred to [the possibility of] filing an asylum application.” 30. On 4 March 2013, the Administrative Jurisdiction Division rejected the applicant’s further appeal on summary grounds, holding: “What has been raised in the grievances ... does not provide grounds for quashing the impugned ruling. Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of legal uniformity, legal development or legal protection in the general sense.” No further appeal lay against this ruling. 31. On 6 August 2013, the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie; the successor to the Minister for Immigration, Integration and Asylum Policy) informed the applicant that – it having been noted that it had been erroneously assumed in the proceedings having ended on 4 March 2013 that there was an obstacle for the applicant’s expulsion in the form of an interim measure issued under Rule 39 of the Rules of Court by the European Court of Human Rights – he intended to proceed with the applicant’s removal from the Netherlands. 32. According to a letter dated 7 August 2013 and sent to the applicant’s representative by a psychologist and a psychiatrist working for the mental health care organisation providing treatment to the applicant’s daughter A., the latter displayed psychotic features, possibly in the context of a developing schizophrenia or post-traumatic stress disorder. She was visited weekly in her home for treatment. The authors of this letter stated that they were unable to indicate whether her mental health problems were connected to or affected by the applicant’s possible removal from the Netherlands, but considered it understandable that this removal would cause tensions within the family. 33. On 7 August 2013, the applicant requested the Court to indicate to the Netherlands Government, under Rule 39 of the Rules of Court, to stay his expulsion to Afghanistan. On 12 August 2013, the acting President of the Third Section, to which the case had been allocated (Rule 52 § 1 of the Rules of Court), decided to adjourn the examination of the request as no practical steps aimed at the applicant’s effective removal had yet been taken by the Netherlands authorities. 34. On 7 October 2013, the Departure and Repatriation Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice informed the applicant that his removal to Afghanistan had been scheduled for 20 October 2013. 35. On the same day, the applicant requested the Court to determine his request to apply Rule 39 of the Rules of Court. On 15 October 2013, the Court decided not to indicate the interim measure sought by the applicant and informed him accordingly. 36. In her submissions of 31 March 2015 and 1 April 2015 to the Court, the applicant’s lawyer informed the Court that on 12 August 2013 the applicant had moved from the Netherlands to Germany where he had applied for asylum. This request was still pending and the applicant had been granted a provisional residence permit (Aufenthaltsgestattung), valid until 6 May 2015 with the possibility of further prolongation, pending the decision on his asylum request. His spouse had visited him in Germany. 37. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act. 38. Aliens are eligible for admission only on the basis of directly applicable international agreements, or if their presence serves an essential Dutch interest, or for compelling reasons of a humanitarian nature (section 13 of the Aliens Act 2000). Respect for family life as guaranteed by Article 8 of the Convention or risk of being subjected in the country of origin to treatment in breach of Article 3 of the Convention constitute an obligation under an international agreement. 39. Under section 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purpose of asylum if, inter alia, he or she is a refugee within the meaning of the 1951 Refugee Convention, or he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin. 40. If the exclusion clause under Article 1F of the 1951 Refugee Convention (see paragraphs 45-49 below) is held against an asylum seeker, the alien concerned loses any protection which might have been available under that Convention and, consequently, becomes ineligible for a residence permit for asylum under section 29 of the Aliens Act 2000 (section 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000). 41. The admission policy for family reunification (gezinshereniging) purposes is laid down in Chapter B1 of the Aliens Act Implementation Guidelines 2000. A partner or spouse of a person lawfully residing in the Netherlands is, in principle, eligible for admission, if certain further conditions relating to matters, such as, public policy and means of subsistence are met. 42. Under the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision (marginale toetsing). Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure (voorlopige voorziening) pending the outcome of the appeal proceedings. 43. In a ruling of 3 December 2008 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number] BG5955), the Administrative Jurisdiction Division held that, apart from judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings, in principle no further remedy lay against a decision to reject an alien’s request for admission to the Netherlands, as the lawfulness of the consequences of that decision had already been judicially determined in the administrative appeal proceedings. It nevertheless accepted that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal (daadwerkelijke uitzettingshandeling), an objection (bezwaar) and subsequent appeal (beroep) may be filed against an act aimed at effective removal. Under the terms of section 72 § 3 of the Aliens Act 2000, such an act can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in separate administrative law appeal proceedings. 44. In accordance with Article 5 of Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and Article 21 of the Convention Implementing the Schengen Agreement of 14 June 1985 (CISA) a third country national holding a valid residence permit issued by one of the states of the Schengen area may – on the basis of that permit – stay for a maximum period of ninety days per six months in the territory of another country within the Schengen area. 45. Article 1F of the 1951 Refugee Convention reads: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” 46. On 4 September 2003 the United Nations High Commissioner for Refugees (UNHCR) issued the “Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”. They superseded “The Exclusion Clauses: Guidelines on their Application” (UNHCR, 1 December 1996) and “Note on the Exclusion Clauses” (UNHCR, 30 May 1997) and are intended to provide interpretative legal guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determination in the field. These guidelines state, inter alia, that where the main asylum applicant is excluded from refugee status, his/her dependants will need to establish their own grounds for refugee status. If the latter are recognised as refugees, the excluded individual is not able to rely on the right to family unity in order to secure protection or assistance as a refugee (paragraph 29). 47. The Netherlands authorities do not wish the Netherlands to be a refuge for war criminals or human rights offenders, and consider it undesirable that victims who have been granted protection in the Netherlands still feel unsafe by the presence in the same country of those who are actually responsible for the fact that they were forced to flee their country of origin (for the policy statement sent on 28 November 1997 by the Deputy Minister of Justice to the Lower House of Parliament; see, H. and J. v. the Netherlands (dec.), nos. 978/09 and 992/09, § 56, 13 November 2014). Accordingly, if in the context of a request for an asylum-based residence permit, any signs appear that crimes or acts referred to Article 1F of the 1951 Refugee Convention have been committed by the petitioner, a special Unit of the Immigration and Naturalisation Service, composed of employees who are specifically trained for this purpose, investigates whether Article 1F of the 1951 Refugee Convention is applicable. 48. Following a so-called “1F investigation”, it will be decided whether or not to hold the exclusion clause under Article 1F against the person concerned. Where Article 1F is applied, the asylum request is rejected and the person concerned is obliged to leave the Netherlands. This decision, taken in the context of asylum proceedings, may be challenged in administrative law appeal proceedings (see § 38 above). 49. Where in a case Article 1F has been applied, the Immigration and Naturalisation Service notifies the public prosecution service hereof. This does not mean, however, that criminal proceedings are automatically initiated in that case. This depends on various legal and practical factors, in particular factors related to evidential issues such as, inter alia, the availability and safety of witnesses. In accordance with the discretionary powers held by the public prosecution service (opportuniteitsbeginsel), it remains for that service to decide in each individual case and in line with the general policy rules defined by the Board of Procurators General (College van procureurs-generaal) whether to prosecute or not. 50. On 29 February 2000, the Netherlands Ministry of Foreign Affairs issued a general official country report (algemeen ambtsbericht) on security services in communist Afghanistan (1978-1992) AGSA, KAM, KhAD and WAD. It qualifies these security services as notorious because of their particularly brutal behaviour, including arbitrary arrests, routine torture and extrajudicial executions. The description in the report focuses on the Khadimat-e Atal’at-e Dowlati (KhAD) and the Wazarat-e Amaniat-e Dowlati (WAD). It states that the KhAD – the successor to AGSA (Da Afghanistan da Gato da Satalo Adara; Organisation for the Protection of the Interests of Afghanistan) created in 1978 and later renamed to KAM (Kargarano Amniyyati Mu’assassa; Workers’ Intelligence Service) – was set up in 1980 and transformed into a ministry in 1986 and that this ministry, called “WAD”, remained in existence until the fall of the communist regime in 1992. The report concentrates on whether and, if so, which former members of the Afghan security services, especially those of the KhAD and the WAD, committed human rights violations. 51. The report further states that detainees and prisoners were systematically tortured in the interrogation and detention centres of the KhAD and the WAD, that their agents were very inventive in choosing their torture methods and that thousands of suspects were tortured to death by KhAD and WAD agents. If the KhAD or WAD thought that a suspect was guilty, they could kill him or her without further investigation or judicial intervention. According to the report, it is estimated that during the communist regime in Afghanistan 200,000 citizens were arrested and detained by the Afghan security services (AGSA, KAM, KhAD and WAD), whereby about 50,000 Afghans lost their lives, mostly after being tortured or sentenced to death. 52. On the basis of this report, the Netherlands immigration authorities adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD/WAD. | 0 |
test | 001-181876 | ENG | RUS | CHAMBER | 2,018 | CASE OF BERKOVICH AND OTHERS v. RUSSIA | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;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);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 5. The applicant, Mr Gennadiy Mikhailovich Berkovich, was born in 1950 and lives in Moscow. He was represented before the Court by Ms M. Samorodkina, a lawyer practising in Moscow. 6. In 1973 Mr Berkovich started working for the Scientific Research Electromechanical Institute, a State design bureau that developed air defence weapons. 7. Mr Berkovich signed an undertaking concerning the non-disclosure of State secrets which contained a restriction on the right to go abroad. The employer had despatched Mr Berkovich on official missions to France (in 1993 and 1994), China (in 1996 and 2003) and Greece (in 2001 and 2004). On 9 September 1993 he was provided with a travel passport (заграничный паспорт), the identity document that entitles Russian citizens to leave the country and travel abroad. It was renewed on 16 December 1998 and then on 3 November 2003, both times for a five-year period. 8. On 28 September 2004 Mr Berkovich terminated his employment. His employer retained his travel passport and refused to return it to him. 9. On 25 July 2005 Mr Berkovich applied to the Passport and Visa Service of the Akademicheskiy District in Moscow for a new travel passport. On 16 December 2005 the head of the Passport and Visa Service refused his application. The refusal indicated that his right to obtain a travel passport was restricted until 26 February 2009 on account of his past access to State secrets. 10. Mr Berkovich challenged the refusal before the Moscow City Court, relying on the fact that he had been previously allowed to travel abroad on official business. 11. On 8 June 2006 the City Court gave judgment. It found that, even though the law provided that a refusal could be challenged before the Interagency Commission for the Protection of State Secrets, Mr Berkovich could not avail himself of that remedy because the Commission had not held any hearings since 22 June 2004 and had been disbanded by a Government resolution of 21 March 2005. The City Court upheld the restriction on Mr Berkovich’s right to travel abroad, noting that, according to his former employer, he had last accessed confidential information in February 2004 and that the classified status of that information was not due to be reviewed until 2009. As to his previous official trips abroad, the City Court said: “The court has established that Mr Berkovich’s work duties required him to travel abroad for official purposes more than once; each time [his employer] obtained for him through the Consular Department of the Ministry of Foreign Affairs a travel passport, which was kept by the human resources department [of the employer] until its expiry. His travel abroad – as an individual aware of State secrets – was organised in accordance with the procedure set out in [the internal documents of the employer]. The claimant was allowed to go abroad because his personal participation was required for the performance of the task and because it was impossible to send abroad other employees who were aware of State secrets to a lesser degree.” 12. On 1 September 2006 the Supreme Court of the Russian Federation upheld the City Court’s judgment on appeal. 13. Following the expiry of the restriction, on 3 April 2009 Mr Berkovich was issued with a travel passport. He used it to travel to Egypt, China, Greece, Croatia and Italy. 14. The applicant, Mr Igor Borisovich Boldyrev, was born in 1958 and lives in Moscow. From February 1987 to 6 February 2007 he was a military serviceman in the Russian Army. 15. Mr Boldyrev was the only son to his parents, who lived in Tallinn, Estonia. His father was born in 1929 and his mother in 1930, and they were both retired and disabled. During his military service Mr Boldyrev visited his parents more than ten times; each time he submitted a report to his military superior indicating the purpose of his visit and the dates and means of transport that he would be using. 16. Following the termination of his military service, on 27 November 2007 Mr Boldyrev applied to the Federal Migration Service for a travel passport. He also submitted medical certificates that attested to the poor health of his parents and justified his need to go and see them. 17. By a letter of 22 December 2010, the Federal Migration Service notified him that his application had been refused on account of his previous awareness of State secrets during the period of his military service. His right to leave Russia was restricted until 22 January 2012. 18. Mr Boldyrev challenged the refusal in court. 19. By a judgment of 24 April 2008, the Moscow City Court upheld the travel ban as lawful. It held that the poor health of Mr Boldyrev’s parents was of no legal significance. On 25 June 2008 the Supreme Court of the Russian Federation upheld that decision on appeal. 20. On 9 November 2009 Mr Boldyrev’s mother died in Tallinn. He tried to obtain a travel passport to attend her funeral but received no response to his application. A travel passport was first issued to him in 2012. 21. The applicant, Mr Aleksandr Nikolayevich Ilchenko, was born in 1968 and lives in Moscow. From 1985 to 30 April 2009 he was a military serviceman employed in the Chief Operative Department of the General Headquarters of the Russian Army. 22. On 29 December 2004 Mr Ilchenko signed a contract of employment, which contained a restriction on his right to leave Russia for a period not exceeding five years on account of his awareness of State secrets. In October 2006, the Main Directorate for International Co-operation of the Ministry of Defence issued a new travel passport for him, which he never used. 23. Following his retirement in April 2009, on 13 September 2010 Mr Ilchenko applied to the Federal Migration Service in Moscow for a travel passport. He submitted that he needed to go abroad for rest and recreation and pointed out that he had already surrendered all classified material on 13 February 2009. 24. By a letter of 22 December 2010, the Federal Migration Service notified him that his application had been refused on the following grounds: “During the period of your service in the Chief Operative Department of the General Headquarters of the Russian Military Forces from November 2004 to date, you have been aware of State secrets; accordingly, your right to go abroad has been temporarily restricted until 13 February 2014 [on the basis] of a decision of the Chief Operative Department of the General Headquarters no. 312/3/196 of 8 October 2010.” 25. Mr Ilchenko challenged the refusal in court. 26. On 3 March 2011 the Presnenskiy District Court of Moscow rejected his complaint. It examined the above-mentioned decision of 8 October 2010, according to which “the plaintiff’s right to travel abroad for private purposes [would] be possible after 13 February 2014, but there [were] no objections to his leaving abroad on official missions arranged by organisations or companies affiliated with the Ministry of Defence.” The court found that the decision refusing the application had been made by the competent authority. 27. On 10 October 2011 the Moscow City Court upheld the District Court’s judgment, summarily endorsing its reasoning. 28. Mr Ilchenko also challenged the compatibility of section 15(1) of the Entry and Exit Procedures Act and section 24 of the State Secrets Act with the Constitution. By judgment no. 14-P of 7 June 2012, the Constitutional Court rejected his complaint, holding as follows: “1. To recognise that the interconnected provisions of section 15(1) of the Entry and Exit Procedures Act and section 24 of the State Secrets Act do not contradict the Russian Constitution inasmuch as these provisions ... presuppose that a decision concerning a temporary restriction on the right to leave the Russian Federation may not be predicated solely on the formal grounds that are expressly mentioned in these provisions; such a decision should not have as its sole basis the established fact that the individual concerned has had access to particularly important or top-secret information classified as a State secret; the elements to be verified in every case should include the nature of the specific information which the individual has had access to [through] his work duties, the degree of confidentiality – including at the time when an application to competent authorities is being made in connection with a planned trip abroad – as well as the purpose of the trip and other circumstances which are relevant for determining that the said restriction was necessary.” 29. The applicant, Mr Vladimir Vitalyevich Litavrin, was born in 1965 and lives in the Moscow Region. 30. From June 1986 to October 2008 he was a military serviceman in the Russian Army. In February 2004, with the consent of his commander and the Federal Security Service (FSB), he was issued with a travel passport, which he used to go abroad on private tourist trips in 2004, 2005, 2006 and 2007. 31. Following the expiry of his travel passport in February 2009, on 24 March 2009 Mr Litavrin applied to the Federal Migration Service for its renewal. In October 2009 he was notified that his application had been refused and that his right to leave Russia was restricted until 15 December 2011. 32. Mr Litavrin challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, by the Odintsovo Town Court of the Moscow Region on 7 September 2011 and the Moscow Regional Court on 1 December 2011. Both courts upheld the restriction as lawful. 33. The applicant, Mr Roman Aleksandrovich Lytin, was born in 1982 and lives in Moscow. From June 2006 to May 2010 he was a military serviceman in the Russian Army. 34. On 21 September 2010 Mr Lytin applied to the Federal Migration Service for a travel passport which would allow him to go abroad. By a letter of 24 February 2011, he was notified that his application had been refused and that his right to leave Russia was restricted until 29 July 2014. 35. Mr Lytin challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, first by the Moscow City Court on 14 October 2011 and later by the Supreme Court of the Russian Federation on 11 January 2012. Both courts upheld the restriction as lawful. 36. The applicant, Mr Aleksey Gennadyevich Khil, was born in 1965 and lives in the Khabarovsk Region. From August 1997 to 9 February 2009 he was a military serviceman in the Russian Army. 37. In September 2010, Mr Khil applied to the Federal Migration Service for a travel passport. By a letter of 27 September 2011, he was notified that his application had been refused and that his right to leave Russia was restricted until 27 November 2012. 38. Mr Khil challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, first by the Khabarovsk Regional Court on 1 February 2012 and later by the Supreme Court of the Russian Federation on 18 April 2012. Both courts upheld the restriction as lawful. 39. The applicant, Mr Aleksandr Aleksandrovich Yenin, was born in 1964 and lives in Sochi. He is a lawyer. From January 1997 to June 2011 he was a military serviceman in the FSB. 40. On 27 December 2007 the Sochi division of the Ministry of Foreign Affairs issued Mr Yenin with a travel passport valid for five years. In accordance with the regulations in force, the passport was kept in the human resources department of the FSB. 41. Following his retirement on 25 June 2011, Mr Yenin repeatedly asked the FSB to return his travel passport because he wished to travel abroad for private reasons. His request was refused on the grounds that, by a report of 29 June 2011, his right to go abroad was restricted until 28 July 2015, that is, for a period of five years from his last contact with top-secret documents. It appears that the documents in question contained details of FSB informants. 42. Mr Yenin challenged the restriction in court, seeking to have it lifted or reduced to a period of two and a half years. His complaint was rejected at two levels of jurisdiction, by the Military Court of the Sochi Garrison on 24 January 2013 and the Military Court of the North-Caucasus Circuit on 7 May 2013. 43. The applicant, Mr Aleksandr Aleksandrovich Garkusha, was born in 1987 and lives in Moscow. He was represented before the Court by Mr A. Yenin, a lawyer practising in Sochi (see paragraph 39 above). From July 2009 to October 2011 Mr Garkusha was a military serviceman in the FSB. 44. On 6 February and 12 December 2012 he applied to the Federal Migration Service for a travel passport which would allow him to go abroad. By a letter of 26 December 2012, he was notified that his application had been refused and that his right to leave Russia was restricted until 31 October 2016. 45. Mr Garkusha challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, by the Military Court of the Sochi Garrison on 14 March 2013 and the Military Court of the North-Caucasus Circuit on 26 June 2013. 46. The applicant, Mr Aleksandr Aleksandrovich Burnayev, was born in 1980 and lives in Krasnodar. 47. From November 2002 to August 2012 he was an investigator with the Krasnodar regional investigations department of the FSB. He had a travel passport and in 2008 travelled with his spouse to the United Arab Emirates for a holiday. 48. On 22 April 2013 the chief of the Krasnodar regional office of the FSB decided that Mr Burnayev’s right to travel abroad for private purposes should be restricted until 19 May 2016 on the grounds that he had previously had access to a top-secret investigative file concerning the theft of property committed by a Russian national on Russian territory. 49. Mr Burnayev applied for a judicial review of that decision. His complaint was rejected at two levels of jurisdiction, by the Krasnodar Regional Court on 12 July 2013 and the Supreme Court of the Russian Federation on 23 October 2013. 50. The applicant, Mr Sergey Viktorovich Samasadkin, was born in 1973 and lives in St Petersburg. 51. From 1997 to 2009 he was a military serviceman in the Komi regional office of the FSB. His contract of employment provided that his access to State secrets would be terminated if he or his family members took up permanent residence abroad or started making an application to take up residence abroad. Termination of his access to State secrets would lead to early termination of his employment. 52. Following his retirement in May 2009, his right to travel abroad for private purposes was restricted until 16 November 2012. 53. In July 2012, anticipating the expiry of the restriction on his right to travel, he applied to the Federal Migration Service for a travel passport which would allow him to go abroad. By a letter of 1 August 2012, he was notified that his application had been refused. 54. Mr Samasadkin challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, by the Syktyvkar Town Court on 25 September 2012 and the Supreme Court of the Komi Republic on 30 May 2013. Referring to section 15 of the Entry and Exit Procedures Act and the decision to restrict Mr Samasadkin’s right to leave Russia, the courts held that the refusal to issue him with a travel passport had been lawful. 55. On 17 December 2012 Mr Samasadkin was issued with a travel passport. | 1 |
test | 001-178940 | ENG | RUS | COMMITTEE | 2,017 | CASE OF SYARKEVICH v. RUSSIA | 4 | No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Obtain attendance of witnesses;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses) | Alena Poláčková;Helen Keller;Pere Pastor Vilanova | 4. The applicant was born in 1961 and lived until his arrest in the town of Yuzhno-Sakhalinsk, the Sakhalin Region. 5. On 3 April 2003 the applicant was apprehended in a flat with unregistered firearms in his possession. Four tied persons with traces of beatings, including Mr P., were discovered in a cloakroom of the flat. An investigator of the Sakhalin Regional police department drew up an arrest record. 6. On the following day the applicant’s detention on remand was authorised. A week later the applicant was charged with a number of crimes, including organisation and leadership of an armed gang, several counts of aggravated kidnapping, extortion, robbery and fraud, as well as illegal possession of firearms. 7. The applicant’s detention was further extended by the YuzhnoSakhalinsk Town Court and the Sakhalin Regional Court on thirteen occasions up until his conviction. When extending the applicant’s detention, the domestic courts referred to the particular gravity and quantity of the charges against him; complexity of the criminal investigation and difficulties of jury trial; the applicant’s liability to abscond, re-offend and interfere with the course of justice, given his personality and criminal record; significant volume of evidence presented by the defence during the trial. The courts also kept track of the course of the investigation and assessed investigative and operative measures planned by the prosecution, including arrests of the applicant’s accomplices (which were still at liberty or had absconded in breach of the measure of restraint imposed on them and had been put on the wanted persons’ list), complex expert examinations requiring participation of the applicant and the victims and examination of the case-file by the applicant and his accomplices. The applicant’s requests for release on bail, as well as his appeal complaints against the detention orders, were to no avail. 8. On 21 April 2004 the applicant and his lawyers started studying the case file materials comprising nineteen volumes, 200-300 pages long each. On 7 September 2004 the Town Court set a time-limit for studying, affording the applicant additional twenty working days to complete it. On 29 December 2004 the case was referred to the Regional Court for trial. 9. On 6 April 2006 the Regional Court, by a jury verdict, found the applicant and six of his accomplices guilty as charged. On 12 May 2006 the Regional Court, relying on the jury verdict, sentenced the applicant to twenty-one years’ imprisonment. 10. The applicant was found guilty, in particular, of an aggravated fraud, robbery, kidnapping and extortion in respect of Mr L., a businessman from the Moscow Region. The jury found that in May 2001 the applicant had approached Mr L. under the pretence of being a car salesman. The applicant had promised Mr L. to sell him a car for approximately 600,000 Russian roubles (RUB). However, after Mr L. had transferred the money to an account indicated by the applicant, the latter had disappeared. In October 2002 the applicant contacted Mr L., told him that he had just returned from Japan with his car and invited him to come to Sakhalin for it. On his arrival at the airport of Yuzhno-Sakhalinsk on 13 October 2002 Mr L. was met by Mr K., one of the applicant’s accomplices, and taken to the applicant’s country house where he was held until 6 November 2002, being subjected to beatings and extortion by the applicant and his gang. 11. Neither Mr K., nor Mr L. were heard in open court. Mr K. had been found dead in a remand prison cell before the trial commenced. As for Mr L., residing in the Moscow Region, the trial court attempted to secure his presence on several occasions by summoning him and ordering his escort to the court. In reply he informed the trial court about being unable to travel to Yuzhno-Sakhalinsk in view of his spinal disease and a medical contraindication to air travel. He submitted a number of documents in support, as well as a written notice in which he confirmed his pre-trial statements. Having regard to these circumstances, the trial court allowed the prosecution’s request to read out Mr L. and Mr K.’s statements incriminating the applicant, despite the latter’s objections. 12. The jury further established that in September and December 2002 and in March 2003 the applicant had organised an armed robbery and kidnapping of eight other victims, including Mr P. and had extorted a large sum of money in exchange for their freedom. Mr P. also was not heard in court as he was allegedly on vacation in Ukraine. Disregarding the applicant’s objections, the Regional Court read out Mr P.’s pre-trial statements against the applicant. 13. The applicant’s lawyer appealed against the judgment of the Regional Court, complaining, among other matters, about the decision to read out pre-trial statements by Mr L., Mr P. and Mr K. On 14 November 2007 the Supreme Court of the Russian Federation upheld the judgment of the Regional Court, noting that it had correctly considered that reasons for the witnesses’ absence had been extraordinary and that it had lawfully read out their pre-trial statements. | 1 |
test | 001-168082 | ENG | RUS | ADMISSIBILITY | 2,016 | VASYANOVICH v. RUSSIA | 4 | Inadmissible | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. The applicant, Mr Vyacheslav Mikhaylovich Vasyanovich, is a Russian national who was born in 1964 and lives in Kursk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In December 2003 the applicant sued a bookmaker over eighty-one beer tokens that he could not redeem at the bar. He accused the bookmaker of luring him into betting with a false promise of free drinks and claimed 9,130 Russian roubles (RUB) (EUR 250) for material loss and RUB 50,000 (EUR 1,400) for distress. 4. On 31 May 2004 the Leninskiy District Court of Kursk awarded him RUB 2,430 (EUR 70) for material loss and RUB 466.50 (EUR 12) in costs. 5. On 15 June 2004 the judgment came into force. 6. On 19 July 2004 the applicant appealed via the District Court. 7. On 20 July 2004 the court stayed the appeal (оставил без движения) until the applicant had paid a fee. 8. On 3 August 2004 the court struck the appeal off (возвратил) because the applicant had not perfected it in time. 9. On 17 September 2004 the court granted the applicant leave to appeal out of time. 10. On 28 September 2004 the court passed the case to the Kursk Regional Court for an appeal hearing. 11. On 20 October 2004 a Deputy President of the Regional Court returned the case as unappealable (снял дело с кассационного рассмотрения), because while the parties were perfecting their appeals the judgment had entered into force. 12. On 4 November 2004 the applicant objected. 13. On 15 November 2004 the Deputy President stood by the decision. 14. On 1 December 2004 the applicant objected again. 15. On 9 December 2004 the Deputy President stood by the decision again. | 0 |
test | 001-145239 | ENG | NLD | ADMISSIBILITY | 2,014 | BERKVENS v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Kristina Pardalos | 1. The applicants, Ms Anna Maria Francisca Berkvens and Mr Johannes Cornelius Berkvens, are Netherlands nationals, who were born in 1932 and 1963 respectively and live in Asten. 2 3. The second applicant is the administrator (bewindvoerder) of the first applicant’s property. 4. On 2 July 2009 Mr A.L. Berkvens died. He left an estate worth EUR 451,168. His heirs included the applicants. It would appear that the first applicant is his widow. 5. The first applicant enjoyed an exemption from inheritance tax up to a maximum of EUR 532,570. Since her part of the estate was worth only EUR 66,584 she owed no inheritance tax. 6. The second applicant’s inheritance was subject to inheritance tax. His portion of the estate was worth EUR 64,453; the inheritance tax due on it was EUR 5,187. The facility for enterprise succession (see paragraph 12 and the judgment of the Supreme Court (Hoge Raad), paragraph 13, below) did not apply. 7. On 22 December 2009 the first applicant made a gift worth EUR 50,000 to the second applicant. 8. The gift tax on this owed by the second applicant came to EUR 2,952. The facility for enterprise succession did not apply. 9. On 18 November 2012 the second applicant lodged an objection with the Tax Inspector on his own behalf and on that of the first applicant. He complained of discrimination in that the exemption applicable to estates and gifts worth up to one million euros which was enjoyed by those entitled to the facility for enterprise succession did not apply to them. 10. The applicants have not submitted any individual decision on their objection. 11. As relevant to the case before the Court, the Succession Act 1956 (Successiewet 1956) provides that inheritance tax (formerly successierecht; since the fiscal year 2010, erfbelasting) shall be levied on the value of everything obtained under inheritance law consequent on the death of a person who at the time of the death was resident in the Netherlands, and gift tax (formerly schenkingsrecht; since the fiscal year 2010, schenkbelasting) on the value of everything obtained by gift from a person who at the time the gift was made was resident in the Netherlands (section 1 of that Act). The tax shall be levied from the recipient (verkrijger) (section 36). 12. Exemptions from these taxes applied, conditionally, to assets belonging to an enterprise owned by the de cuius or the giver, referred to hereafter as “enterprise assets” (ondernemingsvermogen), as distinct from assets that did not belong to an enterprise. In 2005 and 2006 the exemption was 60% of the value of the estate or the gift; from 2007 until 2009 it was 75% (sections 35b and 35c(2) of the Succession Act, as in force at the relevant time). In 2010 the exemption was raised to 100% of the value of the estate or the gift up to 1,000,000 euros (EUR) and 83% of the value beyond that sum (section 35b(1)). 13. On 22 November 2013 the Supreme Court gave decisions in five separate cases (European Case Law Identifier (ECLI):NL:HR2013:1206; ECLI:NL:HR2013:1209 ECLI:NL:HR2013:1210; ECLI:NL:HR2013:1211; and ECLI:NL:HR2013:1212). As relevant to the case before the Court, these decisions were in the following terms, identical in their reasoning for all five. The following is quoted from ECLI:NL:HR2013:1206: “3.1.1. On 1 July 2011 [A.] (hereafter: the de cuius) died. His heirs are his two children, one of them the interested party (belanghebbende), and his spouse. 3.1.2. The estate does not include enterprise assets (ondernemingsvermogen) within the meaning of the facility for enterprise succession (hereafter: the facility) within the meaning of chapter IIIA of the Succession Act. 3.2.1. Before the Regional Court (rechtbank) the issue was whether the interested party could nonetheless invoke the facility on the ground of a violation of the prohibition of discrimination contained in Article 26 of the International Covenant on Civil and Political Rights (‘the Covenant’) and Article 14 of the Convention, or the right to the peaceful enjoyment of possessions as laid down in Article 1 of Protocol No. 1 to the Convention. 3.2.2. The Regional Court held that it was plainly apparent from the drafting history of the facility that its intention was to forestall liquidity problems in enterprises as a result of the imposition of inheritance or gift tax (recht van successie of schenking) and that, in view of this intention, enterprise assets and non-enterprise assets were not to be seen as similar cases. In addition, the Regional Court held that, if similar cases or disproportionate unequal treatment of unequal cases there be, the interested party could not rely on the principle of equality (gelijkheidsbeginsel) because there existed an objective and reasonable justification for the distinction made by the legislature, namely the encouragement of entrepreneurship, so that according to the Regional Court the legislature has not overstepped its wide margin of appreciation. 3.3.1. In considering the points of appeal directed against the Regional Court’s ruling the points of departure must be the following. Article 26 of the Covenant and Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 to the Convention, do not forbid each and every unequal treatment of equal cases, but only those which must be considered discrimination because a reasonable and objective justification is absent. This means that there is discrimination only if the distinction made lacks a legitimate aim or if there is no reasonable relationship of proportionality between the measure making the distinction and the aim sought to be realised thereby (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). In this connection it is worth noting that, for the purpose of applying the said treaty provisions, in the field of taxation the Contracting States enjoy a wide margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, and in the affirmative, whether an objective and reasonable justificiation exists nonetheless to make different provision for those cases (see, inter alia, Giuliana Galeotti Ottieri Della Ciaja and six others v. Italy (dec.), no. 46757/99, 22 June 1999, and Burden, cited above, § 60). If it does not concern a distinction based on a person’s inborn characteristics such as sex, race and ethnic origin then the legislature’s decision should be respected, unless it is without reasonable foundation (compare, inter alia, Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006VI, and Carson and Others v. the United Kingdom, no. 42184/05, §§ 73 and 80, 4 November 2008). The latter eventuality cannot readily be assumed to exist. The distinction must be of such a nature that the legislature’s choice is manifestly without reasonable foundation (see Stummer v. Austria [GC], no. 37452/02, § 89, ECHR 2011, with further references). The same applies with regard to the prohibition of discrimination enshrined in Article 1 of Protocol No. 12 to the Convention. It appears from the Explanatory Report to this Protocol (paragraph 18) that its drafters intended the meaning of the term discrimination used therein to be the same as that of the identical expression used in Article 14 (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009). The case-law of the European Court of Human Rights referred to above will guide the Supreme Court. Article 53 of the Convention leaves to the domestic legislature the freedom to offer a more far-reaching protection of human rights than that given by the provisions of the Convention and its Protocols. In contrast, it follows from the provisions of the Netherlands Constitution, in particular Article 94, that the Netherlands legislature may decline to apply statutory provisions on the ground of discrimination only if such application is irreconcilable with provisions of treaties prohibiting discrimination that are binding on all persons. As regards the prohibition of discrimination enshrined in Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention the Netherlands courts cannot assume such irreconcilability to exist based on an interpretation of the term discrimination as used therein that would lead to more far-reaching protection than may be assumed based on the case-law of the European Corut of Human Rights on those provisions (see the Supreme Court’s judgment of 10 August 2001, no. R00/132R, ECLI:NL:HR:2001:ZC3598, Netherlands Law Reports (Nederlandse Jurisprudentie, ‘NJ’ 2002, no. 278). 3.3.2. Pursuant to the Succession Act a tax is levied on everything obtained by inheritance or gift, the goods in issue being assessed according to the value attributable to them in economic interaction (economisch verkeer). These characteristics of obtention and value in economic interaction, which are relevant to the imposition of gift and inheritance tax, are found in the case of obtention of assets (vermogensbestanddelen) belonging to the de cuius’s or giver’s [enterprise assets, defined in terms of domestic tax law] as they are in the case of obtention of other assets. In the context of the levying of gift and inheritance tax, the obtention of assets having a value in economic interaction must therefore be considered, for the purpose of the application of the above-mentioned treaty provisions, as similar situations, regardless of whether these assets are to be considered enterprise assets or not. A difference in treatment between the obtention of enterprise assets and assets of a different nature therefore requires justification. 3.3.3. In view of the above, the question arises whether there is an objective and reasonable justification for the difference in treatment found. 3.3.4. Initially a measure had been taken within the framework of enterprise succession issues consisting only of a settlement in cases where the continued existence of an enterprise was jeopardised by payment of gift or inheritance tax consequent on the obtention of assets of that enterprise. Starting in 1998 an arrangement has additionally been made in the Tax Collection Act 1990 (Invorderingswet 1990) providing for a conditional exoneration in an amount of 25 per cent of the tax relating to any enterprise assets obtained. This was done within the framework of the tax reduction operation (lastenverlichting) of 1998 aimed at strengthening the structure of the economy. In justification of this facility, which amounted in effect to a partial exemption, the Government pointed out that ‘the inheritance tax due [could] lead to financial problems capable of affecting the continuity of the enterprise. ... From the standpoint of the general socioeconomic interest (een algemeen social-economisch belang) ... it is undesirable that an enterprise transferred by inheritance should be forced to close down or forcibly sold even though the operating results do not so necessitate, resulting in a loss of employment opportunity and economic diversity.’ It is remarked in addition that the arrangement proposed was intended to ‘contribute to the continuity of family-owned businesses’ (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1997-98, 25 688, no. 3, p. 7). 3.3.5. Starting from 2002 this arrangement was made part of the Succession Act 1956 in slightly changed form, based also on a report by the Moltmaker working party [a working party set up to make proposals for the modernisation of inheritance tax law] (...). In addition, starting in that year it was provided in section 21(4) of the Succession Act 1956 that the value of enterprise assets should henceforth be determined including transferable goodwill. ... At the same time the facility was raised to 30 per cent of the tax relating to the enterprise assets obtained. In connection with this raise, it was also pointed at the time that ‘the financial means that can be liberated ... in accordance with the priorities of Cabinet policy [are] used to stimulate entrepreneurship’ (Parliamentary Documents, Lower House of Parliament 2001-02, 28 015, no. A, p. 20). The Government observed in addition: ‘The existence of a facility for enterprise succession, with the attendant inherent unequal treatment of assets, finds its justification in the general interest involved in the continuity of enterprises (Parliamentary Documents, Lower House of Parliament 2001-02, 28 015, no. 6, p. 22). 3.3.6. In 2004 the Minister of Finance commissioned a report entitled ‘The transfer of enterprises, continuity through the tax system’ (Bedrijfsoverdracht, continuiteit door fiscaliteit), in which it was reported, among other things, that the existing exemption in the enterprise succession facility of 30 per cent of the enterprise assets was felt to be insufficient to prevent liquidity problems. This led to a bill to raise the facility to 50 per cent. In the course of the parliamentary discussions of that bill the Government remarked: ‘The existence of a facility for enterprise succession, with the attendant inherent unequal treatment of assets, finds its justification in the general interest involved in the continuity of enterprises. There is no violation of the principle of equality provided that the form in which the facility is cast is appropriate to the intended aim and the facility is no greater than necessary to achieve the aim chosen. It cannot be determined precisely how generous the facility may be in this connection, already because it is a generic facility and the enterprises to which it will apply are diverse in nature’ (Parliamentary Documents, Lower House of Parliament 2004-05, 29 767, no. 14, p. 38). Legislative amendments raised the exemption percentage to 60 per cent starting in 2005 and 75 per cent starting in 2007. 3.3.7. Starting in 2010 the enterprise succession facility was altered on a number of points. Not only was the percentage of the exemption raised, but a number of provisions were adopted to limit the facility to ‘genuine cases of enterprise succession’ (reële bedrijfsoverdrachten). In order to justify the change in the percentage of the exemption, the Government pointed out ‘the importance of unimpeded continuation of economic activity’ (het belang van de onbelemmerde voortzetting van de economische bedrijvigheid) (Parliamentary Documents, Lower House of Parliament 2008-09, 31 930, no. 3, p. 5). ... As to the proposed increase [of the facility] to 90 per cent, the Deputy Minister of Finance remarked, among other things: ‘We have received signals indicating that there are bottlenecks (knelpunten). These are caused by the fact that the value of commercial goodwill is taken into account in calculating the value of enterprise assets. Succession tax is to be paid on future profits. ... Enterprises have indicated several times in my direction, but also in the media that this really caused problems. ... The fact remains, however, that enterprises can encounter liquidity problems, as a result of which certain parts of a family enterprise that have been in the hands of the enterprise for decades might have to be sold off. The Cabinet considers that undesirable, because family-owned businesses contribute to stability and increased employment opportunity. ... It is true that the criterion 90 per cent is an arbitrary choice to meet a need of family-owned businesses that is generally felt in society (maatschappelijk gevoeld belang van familiebedrijven).’ (Parliamentary Documents, Lower House of Parliament 2008-09, 31 930, no. 40, p. 46). A legislative amendment raised the percentage of the exemption to 100 per cent for an obtention valued at up to one million euros per objective enterprise and 83 per cent for enterprise assets over and above that amount. The intention was to allow small and medium-sized businesses to profit from the exemption more than big business. 3.3.8. It follows from the legislative history set out in paragraphs 3.3.4 through 3.3.7 above that the legislator called the facility into existence because, among other reasons, the levying of inheritance and gift tax consequent on the obtention of enterprise assets can cause liquidity problems, in particular also as a result of the taxation of (non-liquid) goodwill, which may endanger the continuity of enterprises. The legislature has, in so doing, had particular regard to the interest of unimpeded continuation of the activities of family-owned businesses within entrepreneurial circles (binnen de kring van de ondernemer). Such continuation would be capable of contributing to the maintenance and increase of employment opportunity, the conservation of economic diversity, and stability. In creating and developing the facility the legislature has also intended to stimulate entrepreneurship. These are legitimate aims as referred to above in paragraph 3.3.1. 3.3.9. The next question is whether the measures taken go no further than is necessary to achieve these in themselves justified aims, that is, to the point that there is no longer a reasonable relationship of proportionality between these measures (the facility) and the aim sought to be realised thereby. In this connection it is argued in particular that the repeated increase of the percentage of the exemption is not supported by any proper investigation of the need therefor. 3.3.10. In the legislative drafting history set out in paragraphs 3.3.4 through 3.3.7 reference is made several times to reports submitted in which it is urged to raise the percentages of the exemption because the existing facility was felt not to be sufficient. In so far as the argument is that the distinction is not based on proper investigations it therefore fails. 3.3.11 The reports referred to admittedly contain signals and desires expressed in practice, but they do not demonstrate any thorough empirical investigation into the extent of the problems posited. Neither do those reports and the legislature’s other arguments give any clear indications as to why precisely an increase of the percentage of the exemption would solve those problems. It does not follow, however, that the facility as applicable in the year here in issue lacks reasonable foundation. The prohibition of discrimination does not go so far as to permit a measure that differentiates between equal or relevantly similar situations in view of a problem experienced in practice only if the existence and the extent of that problem and the effectiveness of the solution chosen have been empirically established. In view of its margin of appreciation, the tax legislature (fiscale wetgever) may also base such a distinction on assumptions regarding the problem and the effectiveness of the solution chosen for it, unless these assumptions are so far-fetched that it is manifestly unreasonable to base the distinction on them (see the Supreme Court’s judgment of 7 June 2000, no. 34793, ECLI:NL:HR:2000:AA6124, Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases, “BNB”) 2000, no. 374). 3.3.12 By providing the facility here in issue the legislature has wished to offer a solution for the bottlenecks in enterprise succession cases noted in practice. In as much as the legislature has based itself on assumptions regarding the need and effectiveness of the measures to be taken it cannot be said that these assumptions are so far-fetched that they are manifestly unreasonable. There are indications that in a considerable proportion of cases in which the facility applies there are no liquidity problems. That is not to say, however, that the legislature could not base itself on the assumption that in cases of inheritance and gift of enterprise assets without the facility here in issue an impediment to the unchanged continuation of economic activity within the circle of the de cuius or the giver might arise. Also in other respects there is no reason to hold that that assumption is manifestly unreasonable. The legislature has chosen, also for reasons of practicability, to adopt a generic measure in the form of the facility here in issue. It cannot be denied that the facility contributes to a solution of the liquidity problems referred to in the cases in which they arise, and therefore contributes to the intended continuation of business activity. Moreover, the facility is not intended solely for that, but is also intended to stimulate entrepreneurship more generally. 3.3.13 The considerations set out in paragraph 3.3.12 above lead the Supreme Court to conclude that the facility as applicable in the year here in issue and also in other years is based on a choice of the tax legislature that cannot be said to be manifestly without reasonable foundation. Accordingly, [by creating the facility] the legislature has not overstepped the limits, referred to in paragraph 3.3.1 above, of its margin of appreciation. Consequently, the obtention of enterprise assets is not favoured above the obtention of other assets in such a way as to constitute discrimination as described in paragraph 3.3.1 above.” 14. On 4 December 2013 the Tax Inspector gave the following decision: “In his decision of 23 October 2012, no. BLKB2012/1665M, the Deputy Minister of Finance (Staatssecretaris van Financiën) has decided to designate as a mass objection (massaal bezwaar) the objections (bezwaarschriften) against inheritance and gift tax assessments (aanslagen erf- en schenkbelasting) in which no enterprise succession facility is granted in respect of non-enterprise assets. The following objections are designated as mass objections: Objections not yet decided on as of 23 October 2013; Objections submitted up to and including the day preceding the date of this collective decision. The above objections relate to the question whether the application of the principle of equality enshrined in Article 26 of the International Covenant on Civil and Political Rights or Article 14 of the Convention requires the (conditional) untaxed conserved value (onbelaste geconserveerde waarde) of the arrangement for succession in enterprises (bedrijfsopvolgingsregeling) in the Succession Act 1956 (of 75%) (redaction for the years 2007 through 2009) or the (conditional) exemption of the arrangement for succession in enterprises in the Succession Act 1956 (of 83%) (redaction for the years 2010 and following) should apply to assets (vermogen) other than enterprise assets (ondernemingsvermogen). A number of objections have been selected in order for the above question to be answered by the administrative court in tax matters. Within this framework, the Supreme Court gave decision on Friday 22 November 2013 in five selected test cases: | 0 |
test | 001-160223 | ENG | RUS | CHAMBER | 2,016 | CASE OF SALIKHOVA AND MAGOMEDOVA v. RUSSIA | 4 | No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicants were born in 1962 and 1994 respectively and live in Makhachkala, Republic of Dagestan, Russia. They are the mother and the wife of Mr Sakhrab Abakargadzhiyev, who was born in 1990. 6. At the material time Mr Sakhrab Abakargadzhiyev and the applicants, along with other relatives, lived together at 115A Magomed Dalgata Street, Makhachkala, Dagestan. According to the applicants for about eighteen months prior to the events in question Mr Sakhrab Abakargadzhiyev had been suspected of illegal activities and had been followed by Dagestani law enforcement agencies, in particular by the Centre against Extremism of the Dagestan Ministry of the Interior (“the CPE”) (Центр по Борьбе с Экстремизмом МВД по Республике Дагестан (ЦПЭ)). 7. At about 6 p.m. on 20 May 2013 Mr Sakhrab Abakargadzhiyev drove in his white GAZ Volga-3110 car along Engelsa Street to visit his relatives, who lived about a ten-minute drive from his house in Makhachkala. At about 6.45 p.m. his car was stopped and he was abducted by a group of eight armed men who were driving two civilian vehicles: a silver-coloured VAZ-21014, which had a registration number which partially read “A067”, and a black VAZ-21099. The men were dressed in civilian clothing and were masked. The applicants’ relative, Mr Ub.Ub., called Mr Sakhrab Abakargadzhiyev during the abduction and upon hearing him screaming immediately informed the applicants that there was a problem. Directly after that Mr Ub.Ub., together with the first applicant, went along Mr Sakhrab Abakargadzhiyev’s route and found his car in the street with two police vehicles and officers from the Sovetskiy district police station in Makhachkala (“the Sovetskiy ROVD”) (Советский районный отдел внутренних дел (РОВД)) next to it. The police told the first applicant and Mr Ub.Ub. that they had arrived a couple of minutes ago and that a few minutes prior to their arrival a man had been abducted. They told the applicant and Mr Ub.Ub. to wait at home for a telephone call from the police and took Mr Sakhrab Abakargadzhiyev’s car to the premises of the Sovetskiy ROVD. 8. Approximately twenty days after the abduction, that is to say between 9 and 12 June 2013, police officers from the CPE searched the applicants’ house. 9. About a month after the events, on or around 20 June 2013, the applicants obtained video footage of the abduction from a local resident (see paragraph 23 below). They recognised one of the abductors by his voice as the CPE officer named “Shakir” and informed the authorities of this. 10. On 1 July 2013 a burnt male corpse was found five kilometres from Gurbuki village in the Karabudakhkenstrkiy district in Dagestan. 11. On 23 December 2013 the body was identified by the authorities as that of Mr Sakhrab Abakargadzhiyev (see paragraph 53 below). The applicants and their relatives disagreed with that conclusion (see paragraphs 54-55 below). 12. According to the applicants, they have had no news of Mr Sakhrab Abakargadzhiyev since his abduction. 13. The Government did not dispute the facts as presented by the applicants, but denied any involvement of State agents in the incident. 14. In reply to the Court’s first request for a copy of the contents of the investigation file, the Government provided ninety-eight copied pages of documents from it reflecting steps taken by the authorities between 14 June and 26 October 2013. 15. In reply to the Court’s further request for a copy of the contents of the investigation file, the Government submitted 372 copied pages of the relevant documents, some of which were illegible. The contents of the legible documents can be summarised as follows. 16. Immediately after the incident the applicants went to the Sovetskiy ROVD, informed the police of the abduction and gave statements to the police investigator. They also conducted their own search for eye witnesses to the incident and found several of them in nearby shops and blocks of flats. The applicants informed the investigators of their findings (see, for example, paragraph 23 below). 17. On 20 May and then on 24 May 2013 the applicants complained of the abduction to the Sovetskiy district investigations department (“the investigations department”). In their second complaint they stated that, in their opinion, the police were wilfully postponing steps in the investigation of the incident. 18. On 3 June 2013 the investigators examined the crime scene. No evidence was collected. 19. On 6 June 2013 the investigators examined the car from which Mr Sakhrab Abakargadzhiyev had been abducted; two fingerprints were collected from the chassis of the vehicle. On the same date a forensic examination of the fingerprints was ordered. 20. On 14 June 2013 the investigations department opened criminal case no. 302564 into the abduction. The applicants were informed thereof. 21. On 18 June 2013 the investigators granted Mr Sakhrab Abakargadzhiyev’s father, Mr A.A., victim status in the criminal case and questioned him. His statement was similar to the applicants’ account submitted to the Court. The witness stated, amongst other things, that he had not witnessed the abduction and had learnt of it from his relatives. According to the witness, his son had no unpaid debts or personal enemies and had the mobile telephone number 8-903-481-61-47. 22. On 18 June 2013 the investigators questioned Mr Ub.Ub. whose statement concerning the incident was similar to the applicants’ account before the Court. 23. According to the applicants, shortly after their initial complaint to the authorities they identified witnesses to the incident and informed the investigators accordingly. As a result, on 21 June 2013 the investigators questioned Mr Ma.Ma. who stated that at about 6.45 p.m. on 20 May 2013 he had been smoking on his balcony at 3 Engelsa Street when he had heard men arguing. He had looked out and seen a group of six or seven masked men with pistols in their hands. Four of those men had been trying to pull the driver out of a white GAZ Volga-3110 car but the latter had been resisting. Then the men had started beating him and had somehow managed to pull him from his seat into the back seat of the car. Three of them had got inside the vehicle. In about two or three minutes the masked men had carried the immobilised driver out of the car and put him in a silvercoloured VAZ-2114. Then all of the masked men had driven off in that car and a black VAZ-21099 car. Immediately afterwards the witness had gone outside and asked a passerby to call the police. In about five minutes the police had arrived at the scene. According to the witness, he had recorded the abduction on his mobile telephone camera and then copied it to a CD. 24. On the same date, 21 June 2013, the investigators seized the abduction footage made by Mr Ma.Ma. On 25 June 2013 they examined the video, the contents of which were similar to the applicants’ account of the abduction submitted to the Court. 25. On 25 June 2013 the investigators questioned the second applicant’s mother, Ms G.G., whose statement concerning the abduction was similar to the applicants’ account before the Court. She had not witnessed the incident and had learnt of it from her relatives. 26. On the same date, 25 June 2013, the investigators questioned the first applicant, whose statement was similar to the applicants’ submission before the Court. In addition the investigators obtained samples of the first applicant’s saliva for DNA testing and for its database. 27. On 20 August 2013 the investigators ordered a comparison of the first applicant’s DNA samples with those from the DNA database. 28. On 30 August 2013 the investigators again questioned the first applicant who stated that in June and July 2013 she had received text messages on her telephone from two unknown numbers. The first message contained the following: “Congratulations, your son became a shahid on the path of jihad in the Karabudakhkenstrkiy district ... May Allah accept his shahada and take him to the gardens of Firdous. Allahu Akbar!” The second message contained the following: “...Your son and son-in-law were set up by your neighbour Makhmud who worked for the 7th department [of the police]. If you don’t believe it, have your men follow him. I could not do nothing about it as I have got nobody who could help me eliminate him. This beast spares no one. I hope you will believe me as I have got no other way out. My brother was the only tower of strength in my life. Friend.” 29. On the same date, 30 August 2013, the investigators seized the first applicant’s mobile telephone to examine the above messages. It was established that the first message had been received on 15 June 2013 from a mobile telephone located that day in Popovicha Street in Makhachkala; the second message – received on 20 July 2013 – came from a different telephone number. 30. On 5 September 2013 the investigators requested the Sovetskiy District Court in Makhachkala to grant them permission to obtain from the relevant mobile phone operator the call logs of Mr Sakhrab Abakargadzhiyev’s telephone number (8-903-481-61-47) between 20 April and 1 September 2013. 31. On 9 September 2013 the investigators received the court’s permission and examined the call logs of Mr Sakhrab Abakargadzhiyev’s telephone calls. According to the logs, at about 6.35 p.m. on 20 May 2013 he had received a telephone call from Mr Ub.Ub and after that the handset had been switched off. On 16 August 2013 a five-second call had been received on Mr Sakhrab Abakargadzhiyev’s number; the caller had been located in the area of Dachi in Makhachkala. 32. On 9 September 2013 the investigators again questioned the first applicant who stated that on the morning of 5 September 2013 she had received a call on her mobile telephone from a man who had not introduced himself but had stated that he was an officer of the Federal Security Service (“the FSB”) (Федеральная Служба Безопасности (ФСБ)) and that he was holding Mr Sakhrab Abakargadzhiyev. The man, who had called from 8988-059-41-98, had told her that he would release her son in one day in exchange for 250,000 Russian roubles (RUB). The applicant had passed the telephone to her husband who had told the man they had had only RUB 150,000 and that they would pay RUB 50,000 at once and then RUB 100,000 after their son’s release. The man had told them that Mr Sakhrab Abakargadzhiyev was being held about a ten to twelve hour drive from Makhachkala and that he was in a bad state of health. Between 10 a.m. and 3 p.m. on that date (5 September 2013) the first applicant’s husband and the man had called each other several times. The applicant’s husband had been ordered to deposit RUB 50,000 in the account of mobile telephone number 8-964-519-62-69, which he had done on the same day. The man had confirmed receipt of the money and told the applicant and her husband to wait for his call. But he had not called back and his telephone number had been disconnected since 5 September 2013. 33. On 25 September 2013 the forensic experts informed the investigators that the fingerprints collected from Mr Sakhrab Abakargadzhiyev’s car (see paragraph 19 above) were not fit for identification. The applicants were informed thereof on 21 December 2013. 34. On 30 September 2013 the investigators requested that the Sovetskiy District Court in Makhachkala grant them permission to obtain the call logs of telephone number 8-988-059-41-98 (used by the alleged FSB officer on 5 September 2013) between 1 August and 30 September 2013. Permission was received on 4 October 2013. 35. On 7 October 2013 the investigators searched Mr Sakhrab Abakargadzhiyev’s house. No evidence was collected. 36. On 7 October 2013 the investigators questioned the second applicant whose statement concerning the abduction was similar to that submitted by the applicants to the Court. She had not witnessed the incident but had learnt of it from her relatives. 37. On 9 October 2013 the investigators received the call logs of the telephone number 8-988-059-41-98. According to these logs, the caller who had contacted the first applicant and her husband on 5 September 2013 (see paragraph 32 above) had been located in Volgograd. 38. On 10 October 2013 the first applicant requested the investigators to order an expert analysis of the voice of one of the abductors from the video footage of the incident (see paragraph 23 above); according to her, Mr Ub.Ub. had identified that voice as belonging to a Dagestan CPE officer named Shakir whom he would be able to identify if necessary. The applicant requested that the investigators examine the video and compare the abductor’s voice to that of Shakir. 39. On 16 October 2013 the investigators granted the first applicant’s request and ordered that steps be taken to identify the CPE officer Shakir and to analyse the voice on the video. The applicants were informed thereof. 40. On 26 October 2013 the investigators questioned Mr T.G. who stated that he lived next to the scene of the abduction but had not witnessed it and learnt of it from his neighbours. 41. On 28 October 2013 the investigators questioned police officer A.A. who stated that on 20 May 2013 he had been on duty at the Sovetskiy ROVD and had been called to the abduction scene. According to the witness, the investigators had examined the crime scene and had towed away the white GAZ Volga-3110 car left behind after the abduction to their police station. After about a month the car had been picked up by an unnamed individual. 42. On 1 November 2013 the investigators questioned Shakir N., an officer with the Dagestan CPE, who stated that he did not have information pertaining to the abduction, but that he had participated in the search of the applicants’ house in June 2013 (see paragraph 8 above). The witness also confirmed that in June 2013, about two days after the search, he had spoken with Mr Ub.Ub. who had visited the CPE with his son Mr A.Ub., who had been suspected of involvement in illegal armed groups. Mr Ub.Ub. had requested his assistance in the criminal case against his son Mr A.Ub. but the witness had refused to help him. Due to the passage of time the witness could not recall where he had been on the evening of 20 May 2013 but stated that he had not met Mr Sakhrab Abakargadzhiyev and had not participated in a special operation against him. The witness’ mobile telephone number was 8-967-395-69-75 and he had been using that number since June 2012. 43. On 3 November 2013 the investigators again questioned the first applicant who stated that, in her opinion, her son had been abducted by special forces servicemen or law-enforcement officers as they had suspected Mr Sakhrab Abakargadzhiyev of aiding members of illegal armed groups. Twenty-four days after the abduction the CPE officers had searched her house (see paragraph 8 above). According to the applicant, Mr Ub.Ub. had met officer Shakir in the middle of June when he had gone to the CPE with his son. 44. On 5 November 2013 the investigators received the call logs of the telephone number used for the deposit of RUB 50,000 (see paragaph 32 above). According to the list, on 5 September 2013 the caller had been located in Volgograd, Russia. 45. On 19 November 2013 the investigators ordered an expert analysis of the voices in the abduction video (see paragraph 23 above). It can be seen from the documents submitted that on an unspecified date between 19 and 28 November 2013 the experts concluded that the voice on the footage was not fit for identification (see paragraph 47 below). 46. On 24 or 25 November 2013 the investigators requested the Sovetskiy District Court in Makhachkala to grant them permission to obtain the call logs for between 10 a.m. and 11 p.m. on 20 May 2013 from the telephone number belonging to officer Shakir N. (see paragraph 42 above). This was granted on 28 November 2013. 47. On 28 November 2013 the Dagestan Ministry of the Interior conducted an internal inquiry into the applicants’ allegations of the involvement of the CPE officers in the abduction and concluded, amongst other things, the following: “... On 20 May 2013 A.A. complained of the abduction of his son Mr Sakhrab Abakargadzhiyev to the Investigations Department ... ... According to the witness statements of the first applicant, Mr R.M., Mr Ub.Ub. and Mr A.Ub., enclosed with the complaint, officers of the CPE were involved in the abduction ... In their statements Mr Ub.Ub. and Mr A.A. directly indicate the CPE officers Ra.M. and Shakir; the latter they had been able to identify from the video posted on Youtube under the title “Abduction of Mr S. Abakargadzhiyev”. According to the statement of the CPE operational search officer Shakir N. given to the inquiry, ... in June 2013 he had participated with his colleagues from the CPE in the search of Mr Sakhrab Abakargadzhiyev’s home ... After the search, prior to the departure, he and his colleagues had asked Mr Sakhrab Abakargadzhiyev’s relatives to ensure that Mr A.Ub. would appear at the CPE. The latter, who had been related to Mr Sakhrab Abakargadzhiyev, had been listed in the CPE’s database as a supporter of terrorist groups, had been told to report to the CPE to help with enquiries ... several days later Mr A.Ub. had been arrested and charged with the same crimes for which he had been investigated. After the arrest, the father of Mr A.Ub., Mr Ub.Ub., had asked the witness and Captain Ra.M. to assist him in persuading the authorities to be lenient towards his son, but his requests had been refused by the officers ... On the date of Mr Sakhrab Abakargadzhiyev’s abduction the witness had taken a detainee, Mr M.D., to the court ... he had had nothing to do with the abduction. In addition, the witness explained that Mr Sakhrab Abakargadzhiyev had been an ardent supporter of Wahabiism and on several occasions had aided members of Dagestani terrorist groups, in particular, Mr S.Gu., and had participated in the attack on Dagestan traffic police officers near Agachul in February 2013 ... When questioned, the head of the operational search divison of the Dagestan CPE, Captain Ra.M., confirmed the above statement and explained that neither he nor his subordinate officers had had anything to do with the abduction. Mr Ub.Ub. had told lies about them as he and the servicemen of his department had arrested his son Mr A.Ub. in connection with the investigation of criminal case no. 30284. According to the evidence submitted by the CPE, they had obtained information concerning planned attempts on the lives of law-enforcement officers committed by Mr S.G., Mr A.Kh., Mr G.A. and Mr Sakhrab Abakargadzhiyev on 6 February 2013. The CPE officers did not arrest or detain Mr Sakhrab Abakargadzhiyev and no operational measures were taken against him... ... It can be seen from the case file that according to the expert analysis of the video “Abduction of S. Abakargadzhiyev” it was imposssible to analyse and identify the voices therein ... Thus, the internal inquiry was not able to verify the first applicant’s complaints concerning the unlawful actions of the CPE officers owing to significant discrepancies between the statements of those questioned during the inquiry; those discrepancies could be resolved only within the framework of a criminal case ...” 48. On 4 December 2013 the investigators received the call logs of officer Shakir N.’s mobile telephone for 20 May 2013, according to which on that date his telephone had been located in Makhachkala. 49. On 12 December 2013 the investigators questioned forensic expert Mr M.U., who had fingerprinted the white GAZ Volga-3110 car (see paragraphs 19 and 33 above). According to the witness, nobody else had touched the vehicle until after the examination. 50. On 30 December 2013 the investigation was suspended. The applicants were informed thereof. 51. On 28 January 2014 the investigation was resumed and the applicants were informed accordingly. The decision stated, amongst other things, the following: “... the investigation established that Mr Sakhrab Abakargadzhiyev’s corpse had been found five kilometres north-west of Gurbuki village ... In connection with this, on 1 July 2013 the Kaspiysk Investigations Department opened criminal case no. 329105 ...” 52. On 29 January 2014 the investigators examined the contents of criminal case file no. 329105. According to the contents, there was a 99.93% DNA match between the DNA of the burnt corpse and that of the first applicant taken from the DNA database, as shown by the results of a forensic examination of 23 December 2013. 53. On 3 February 2014, having established that the burnt body found on 1 July 2013 had been that of Mr Sakhrab Abakargadzhiyev, the investigations in criminal cases nos. 302564 and 329105 were joined by the investigators under the number 302564. The decision stated that the body had been found in a VAZ-2107 vehicle in which a home-made explosive device had been detonated. 54. On an unspecified date between February and March 2014 the investigators asked the first applicant to identify the body found on 1 July 2013. According to the applicant, she was not shown the actual corpse, but a photograph of it. She was able to tell from the photograph that it was not the body of her son Mr Sakhrab Abakargadzhiyev: according to the police, the corpse had at least five gold teeth; Mr Sakhrab Abakargadzhiyev did not have any. 55. On 12 March 2014 the first applicant’s husband asked the investigators to question him and the first applicant again about the circumstances of the abduction, to order another expert forensic examination of the corpse and to further examine and identify the voice of Shakir N. recorded by Mr Ub.Ub. The outcome of this request is unknown. 56. It appears from the documents submitted that the proceedings are still pending. 63. The applicant maintained that it was beyond reasonable doubt that the men who had abducted their relative Mr Sakhrab Abakargadzhiyev on 20 May 2013 had been State agents. In support of their allegation they referred to the following: the abduction had taken place in broad daylight, in an area surrounded by CCTV cameras, in the presence of witnesses; the perpetrators had acted openly, without fear of arrest by law-enforcement authorities; the authorities had wilfully delayed the investigation of the incident by conducting, for instance, the crime scene examination almost two weeks after the applicants’ complaints about it (see paragraphs 17 and 18 above) and by taking further steps either belatedly or with major deficiences (see, for example, paragraphs 19 and 33 above); the CPE officer Shakir N. had been present in the vicinity of the abduction scene during the incident (see paragraphs 38 and 48 above) and the applicants had informed the investigators of his and his colleagues’ alleged involvement in the crime; Mr Sakhrab Abakargadzhiyev had been suspected of involvement in illegal activities and, therefore, the authorities had had motives for his abduction (see paragraphs 38, 43 and 47 above). The applicants also referred to a number of abductions allegedly perpetrated by State authorities in Dagestan between 2011 and 2012 in similar circumstances, where some of the abducted men had subsequently been found in State custody. 64. The Government denied any involvement of State agents in the events. In particular, they stated that only in October 2013 had the first applicant alleged that law-enforcement officers had been involved in the incident (see paragraph 38 above). 65. The Court points out that a number of principles have been developed in its case-law as regards applications in which it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005VIII). 66. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar, cited above, § 283) even if certain domestic proceedings and investigations have already taken place. 67. The Court reiterates that it has noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation as to how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 of the Convention (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005II). 68. The Court notes that in reply to its request for a copy of the investigation file into the abduction of Mr Sakhrab Abakargadzhiyev the Government produced the relevant documents from the file (see paragraphs 14 and 15 above). 69. The Court has found the Russian State authorities responsible for a number of extra-judicial executions or disappearances of civilians perpetrated in the Chechen Republic at the end of the 1990s and the beginning of the 2000s, even in the absence of final conclusions from the domestic investigation (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-XIII; Estamirov and Others v. Russia, no. 60272/00, 12 October 2006; and Baysayeva v. Russia, no. 74237/01, 5 April 2007). It has done so taking into account the length of time during which the applicants had not had any news of their missing relatives and on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time. It has relied on references to military vehicles and equipment, on witness accounts, on other information on security operations and on the undisputed effective control of the areas in question by the Russian military. On that basis, it has concluded that the areas in question were “within the exclusive control of the authorities of the State” in view of the military or security operations being conducted there and the presence of servicemen (see, mutatis mutandis, Akkum, cited above, § 211, and Zubayrayev v. Russia, no. 67797/01, § 82, 10 January 2008). 70. However, in the present case the circumstances in which the events occurred do not warrant an unequivocal conclusion that State agents were responsible for the abduction of the applicants’ relative for the following reasons. As regards the general background, the events complained of took place not in Chechnya, but in Dagestan in May 2013, and there was neither a curfew in place nor any restrictions on driving civilian vehicles. Noting that the applicants’ version of the events was based on the statements of those who had not witnessed the abduction themselves, except for the statement of Mr Ma.Ma., that the video of the abduction had not assisted in the identification of the culprits (see paragraphs 24 and 45 above) and taking into account that the abductors drove ordinary vehicles and were wearing balaclavas and civilian clothing, the Court has little evidence to rely upon. However, bearing in mind that after the events the applicants received information alleging knowledge of their relative’s whereabouts which they submitted to the authorities with a delay varying from several days to several weeks (see, for example, paragraphs 28 and 32 above), along with the subsequent discovery of the burnt body and the experts’ evaluation concerning its identity (see paragraphs 52 and 53 above), the Court is not persuaded that the abduction of the applicants’ relative by State agents is the only possible explanation of the events in question. 71. Accordingly, the information in the Court’s possession does not suffice to establish that the perpetrators belonged to the security forces or that a “security operation” had been carried out in respect of Mr Sakhrab Abakargadzhiyev. 72. To sum up, it has not been established to the required standard of proof that State agents were implicated in the disappearance of Mr Sakhrab Abakargadzhiyev; nor does the Court consider that the burden of proof can be entirely shifted to the Government. | 1 |
test | 001-169022 | ENG | MNE | ADMISSIBILITY | 2,016 | VUČELJIĆ v. MONTENEGRO | 4 | Inadmissible | Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani | 1. The applicant, Mr Mojsije Vučeljić, is a Montenegrin national who was born in 1944 and lives in Podgorica. 3. On 28 March 2005 the applicant and his siblings (“the plaintiffs”) instituted civil proceedings against: (a) the State, as the founder of the public broadcasting service, Radio Televizija Crne Gore (“RTCG”), and (b) G.K., one of RTCG’s employees. They submitted that a television programme transmitted by the RTCG had portrayed their late father in a way which was insulting to both him and his family. 4. On 22 March 2011, after two remittals, the Court of First Instance (Osnovni sud) in Podgorica ruled against the plaintiffs. 5. On 2 April 2012 the High Court (Viši sud) in Podgorica overturned the judgment of the first-instance court and ruled partly in favour of the plaintiffs, ordering the State to pay each of them compensation in respect of non-pecuniary damage in the amount of 1,000 euros (EUR) with accompanying interest. The court dismissed their claim in respect of G.K. and ordered them to pay him the costs of the respective proceedings. On 7 December 2012 the same court issued an additional judgment ordering the State to make the High Court’s judgment of 2 April 2012 public via RTCG and to pay the plaintiffs the costs of the proceedings in connection therewith. 6. On 23 January 2013 the Supreme Court dismissed appeals on points of law that had been lodged by the plaintiffs. 7. On 25 February 2013 the plaintiffs filed an enforcement request (predlog za izvršenje). On 7 April 2014, after two remittals, the Court of First Instance issued an enforcement order, followed by an additional order of 27 May 2014. 8. The applicant did not file a request for review while the proceedings (both civil and enforcement) were ongoing or an action for fair redress once they were concluded (see paragraph 22 below). 9. On an unspecified date the plaintiffs lodged a constitutional appeal. On 22 December 2013 the Constitutional Court informed them that the constitutional appeal was incomplete and invited them to amend it within eight days or it would be rejected. On 5 January 2015 the applicant lodged another appeal with the Constitutional Court. On 21 April 2015 the Constitutional Court rejected (odbacuje se) the applicant’s constitutional appeal for not having been amended as requested and because “it [did] not contain the reasons from which it could be concluded why and in what way the applicant’s constitutional rights and freedoms were violated”. 10. Article 32 provides for the right to a fair trial. 11. Article 149 provides that the Constitutional Court will rule on any constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, once all other effective legal remedies have been exhausted. 12. The Constitution entered into force on 22 October 2007. 13. Section 48 provided that a constitutional appeal might be lodged against an individual decision of a State body, an administrative body, a local government body or a legal person exercising public authority, in respect of violations of human rights and freedoms guaranteed by the Constitution, once all other effective legal remedies had been exhausted. 14. Sections 49-59 provided additional details as regards the processing of constitutional appeals. In particular, section 56 provided that in cases where the Constitutional Court found a violation of a human right or freedom, it would quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which had delivered the quashed decision. 15. This Act entered into force in November 2008 and was repealed by the Constitutional Court Act 2015. 16. Section 68 provides that a constitutional appeal can be lodged by a physical person or legal entity, an organisation, a community (naselje), a group of individuals, and other forms of organisation which do not have the status of a legal entity if they consider that one of their human rights or freedoms guaranteed by the Constitution has been violated by an individual decision, action or omission of a State body, an administrative body, a local government body or a legal person exercising public authority, once all other effective legal remedies have been exhausted. 17. Sections 69-78 provide further details as regards the processing of constitutional appeals. 18. In particular, section 69 provides, inter alia, that if the complaint relates to a court’s failure to act within a reasonable time, a constitutional appeal can be lodged only if the remedies provided for by the Right to a Trial within a Reasonable Time Act have already been exhausted or if an appellant can prove that these remedies were not or would not have been effective. 19. Section 76 provides that if in the course of proceedings before the Constitutional Court, an impugned decision has ceased to be in force, and the Constitutional Court finds a violation of a human right or freedom, it will allow a constitutional appeal and award the appellant just satisfaction. 20. Section 38 provides that the Constitutional Court must deliver a decision within 18 months of the date on which the proceedings before that court were initiated. 21. This Act entered into force on 20 March 2015 and thereby repealed the Constitutional Court Act 2008. 22. This Act makes provision, under certain circumstances, for the possibility to have lengthy proceedings expedited by means of a request for review (kontrolni zahtjev), and for the opportunity for claimants to be awarded compensation by means of an action for fair redress (tužba za pravično zadovoljenje). In particular, section 33 provides, inter alia, that an action for fair redress can be lodged by a party who has previously made use of a request for review or who objectively was not able to do so. The action for fair redress must be filed with the Supreme Court no later than six months after the date of receipt of the final decision delivered in the impugned proceedings. This Act entered into force on 21 December 2007. 23. For the Constitutional Court’s relevant practice see Siništaj and Others v. Montenegro, nos. 1451/10, 7260/10 and 7382/10, §§ 94-98, 24 November 2015. | 0 |
test | 001-145215 | ENG | SRB | CHAMBER | 2,014 | CASE OF ISAKOVIĆ VIDOVIĆ v. SERBIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 5. The applicant, a medical doctor by profession, was born in 1967. She currently lives in Celje, Slovenia, having lived in Šabac, Serbia, at the material time. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 2 September 1997 the applicant and her neighbour P.V. confronted each other in front of their houses following a verbal conflict between P.V. and the applicant’s mother. While the applicant allegedly shouted obscenities at him, P.V. allegedly punched her in the face, causing her to fall down and lose consciousness. The medical records from the emergency ward showed that the applicant had sustained a number of injuries to her head. She was released from hospital the next day upon her own request. 8. On an unspecified date, the applicant lodged a criminal complaint (krivičnu prijavu) in respect of this event. 9. On 16 September 1997 P.V. and his wife brought a private criminal action (privatnu krivičnu tužbu) against the applicant for insult and defamation (zbog uvrede i klevete) and against both the applicant and her mother for making serious threats (zbog ugrožavanja sigurnosti). 10. On 2 March 1998 the Šabac Public Prosecutor filed a bill of indictment (optužnicu) against P.V. with the Šabac Municipal Court for the crime of severe bodily injuries (zbog nanošenja teških telesnih povreda). 11. On 20 March 1998 the Municipal Court joined the two sets of proceedings. 12. At some point in 2000 the applicant lodged a civil compensation claim within the criminal proceedings (istakla imovinsko-pravni zahtev). 13. Between 14 April 1998 and 31 May 2000 a total of thirteen hearings were held or adjourned. 14. At the hearing of 11 January 2000 a medical expert stated that, based on the available documentation, on 2 September 1997 the applicant had sustained a concussion as well as a contusion. She had also continued receiving medical treatment for another two months. 15. On 15 June 2000 the Municipal Court convicted both the applicant and P.V. as charged and sentenced them to a fine and four months imprisonment, respectively, both sentences suspended for a period of one year. The court instructed the applicant to pursue her civil claim in a separate civil suit. The applicant’s mother was acquitted. 16. On 20 June 2001 the Šabac District Court quashed the convictions and ordered a new trial, but upheld the acquittal. 17. On 12 January 2004 a new hearing was scheduled for 25 February 2004. 18. On 25 February 2004 the Municipal Court terminated the proceedings against the applicant as time-barred, while the proceedings against P.V. continued. 19. On 2 April 2004 the main hearing started anew due to changes to the composition of the bench. Following the applicant’s testimony, the proceedings were adjourned for an indefinite period, as the Municipal Court had to obtain certain missing medical documentation. 20. At the next hearing of 18 May 2005, the Municipal Court heard P.V., as well as three witnesses. The court further decided to request the Belgrade Forensic Medicine Institute to give its opinion as regards the applicant’s bodily injuries allegedly sustained at the material time. No new hearing was scheduled. 21. On 19 December 2005 the Municipal Court received the relevant medical opinion dated 16 September 2005. The opinion stated that the attack had caused the applicant severe bodily injuries (loss of consciousness, a concussion and a contusion of the zygomatic bone). 22. On an unspecified date the Municipal Court scheduled the next hearing for 22 May 2007. This hearing, however, was further adjourned on two separate occasions, because of P.V.’s or the trial judges’ absence. 23. On 11 July 2007 the Municipal Court dismissed proposals for the examination of additional witnesses. On the same occasion the defendant requested that the entire trial bench be replaced by another. The case-file was subsequently forwarded to the President of the court for a decision. 24. On 5 September 2007 the Municipal Court terminated the proceedings against P.V. as time-barred. 25. The applicant never filed a separate civil compensation claim in respect of the underlying incident. 26. In 2008 the applicant and her family moved to Slovenia. | 1 |
test | 001-166482 | ENG | TUR | CHAMBER | 2,016 | CASE OF TOPTANIŞ v. TURKEY | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani | 4. The applicant was born in 1974 and lives in İzmir. 5. At the time of the events giving rise to this application, the applicant was working as a watchman on a construction site located in the vicinity of a military compound housing the 7th Gendarmerie Commando Regiment in Foça, İzmir. 6. On 14 October 2008, sometime between 8 p.m. and 9 p.m., the applicant left the construction site to meet three friends, M.K., N.V., and F.T., who worked on nearby farms. While walking towards his friends, the applicant suddenly collapsed for an unknown reason; his friends immediately took him to hospital. The applicant’s initial medical examination at the Foça State Hospital did not reveal any findings other than a cut measuring 0.5 cm on his back between the tenth and eleventh ribs. However, a lung X-ray taken subsequently showed that a foreign object, which appeared to be a bullet, was lodged between his eleventh and twelfth ribs. The applicant was transferred to the Karşıyaka State Hospital to receive further treatment for serious injuries sustained to his lungs and liver. After undergoing various operations, on 23 October 2008 he was discharged from the hospital. According to a medical report issued on 30 December 2008 by the Karşıyaka State Hospital, it had been decided for medical reasons to leave the bullet inside the applicant’s body, to be extracted only in the event of deterioration in the applicant’s condition. The report also noted that the injuries sustained by the applicant had been life-threatening. 7. At 2.30 a.m. on 15 October 2008 two gendarme officers from the crime scene investigation unit of the Menemen Provincial Gendarmerie Command arrived at the site of the incident, which was located by a farm by the name of “Dürüs” (“the Dürüs farm”), to carry out a preliminary investigation and to prepare a scene-of-incident report (on the instructions of the Foça public prosecutor). After photographing the site of the incident, they talked to the witnesses and the gendarmerie patrol unit on duty. According to the information they obtained, the applicant had collapsed abruptly while he was walking to meet his friends. No gunshots had been heard at the site of the incident, but a firing practice had been underway at the relevant time at the nearby military compound housing the 7th Gendarmerie Commando Regiment. The gendarme officers indicated in their report that there were two shooting ranges within the said military compound: one located 1,780 metres to the north of the Dürüs farm, at an altitude of fifty metres (“the first shooting range”); and the other 1,050 metres to the east, at an altitude of ninety metres (“the second shooting range”). The altitude of the Dürüs farm was forty metres. There were three hills between the Dürüs farm and the first shooting range; the first two hills had an altitude of fifty-five metres, and the third hill had an altitude of ninety metres. No information was provided regarding the terrain between the farm and the second shooting range. Firing practice was carried out with G3 rifles at the first shooting range and with 5.56 mm rifles at the second shooting range. According to a sketch map prepared by the gendarme officers, the site of the incident was approximately 15 degrees to the east of the assumed trajectory of bullets fired from the first shooting range. In the gendarme officers’ opinion, the applicant had been hit by a stray bullet that had ricocheted during firing practice, particularly in view of the fact that no evidence of criminal conduct had been found at the site of the incident. The only evidence collected by the gendarme officers was the jacket that the applicant had been wearing at the time of his shooting, which was handed to the İzmir Gürçeşme Criminal Police Laboratory for examination. 8. The gendarme officers visited the site of the incident once again at approximately 9.45 a.m. on the morning of 15 October 2008 to make further investigations, but did not discover any new evidence. It appears that on the same morning they also went – on the instructions of the Foça public prosecutor – to the military compound to photograph the shooting ranges. 9. At approximately 10.15 a.m. on 15 October 2008 the Foça public prosecutor visited the site of the incident together with a police expert, H.Ö. The public prosecutor noted that the investigation had not thus far revealed any spent cartridges, bullet shells, arms or any other such material on or around the site of the incident, nor had any suspects who might have shot at the applicant been identified. According to the information provided by the applicant’s three friends to the public prosecutor, the applicant had collapsed right before their eyes and there had been no one else present at the relevant time. They also told the public prosecutor that they often heard gunfire coming from the military compound during shooting practice and that gunfire had also been audible at the time of the incident, although they had not heard gun shots emanating from anywhere nearby. 10. According to the information in the case file, the applicant was still in a critical condition on the morning of 15 October 2008. Nevertheless, at 3 p.m. on that day, he was interviewed by two gendarme officers in the office of the security team commander (Asayiş Tim Komutanı) of the local gendarmerie. It is not clear whether this office was located inside the hospital or outside. Prior to the commencement of the interview, the applicant was informed of his right to request the appointment of a lawyer from the local bar association to assist him, but it appears that he did not exercise that right. The applicant told the gendarme officers that at approximately 8.45 p.m. on 14 October 2008, he had left his house to check up on the construction site where he worked as a watchman. As he had been walking towards the site, he had heard whizzing sounds above his head. He had continued to hear the same sounds on his way out of the construction site, along with the sound of gunfire from the military compound located nearby. Then, all of a sudden, he had felt a sharp pain in his back and had collapsed to the ground. He had not known what had happened until he had been told in the hospital that he had been shot in the back with a firearm. When the gendarme officers asked the applicant whether he had been in ongoing conflict with anyone and whether he had heard any gunshots at the time of the incident, he replied that he had not been in any conflict and that the only shots he had heard had been those coming from the military compound, which he had been hearing for the past week. The applicant also stated that he did not wish to press charges against anyone regarding the incident. 11. On 16 October 2008 H.Ö., the police expert who had accompanied the Foça public prosecutor during his examination of the site of the incident, issued a report of his findings. He indicated in his report that the distance between the site of the incident and the military shooting ranges, which were spread over hilly terrain, was approximately one and a half kilometres. Having regard to the witness statements, and to the absence of any other factors that might explain the applicant’s injury, the police expert opined that the injury had probably been caused by a bullet that had ricocheted during the firing practice at the military compound. He submitted a simple sketch map of the site of the incident along with his report. 12. On 23 October 2008 the applicant was discharged from the hospital. 13. On 12 November 2008 two gendarme officers visited the applicant at his home on the instructions of the Foça public prosecutor to enquire about the bullet that had wounded him. The applicant informed the gendarme officers that the bullet had still not been extracted from his body and that the doctors would re-evaluate the situation once he had fully recovered from the earlier operations. The applicant was requested to inform the authorities in the event that the doctors decided to remove the bullet. 14. On 13 November 2008 the İzmir Criminal Police Laboratory issued a report on the analysis carried out on the applicant’s jacket. According to the report, a hole measuring 0.5 cm in diameter was found in the back of the jacket, but no gunshot residue was found around that hole. Having regard to the shape and other characteristics of the hole, it was decided that it had been caused by a firearm and that the shot had been fired from a long distance. 15. On 14 November 2008 the Foça public prosecutor took the applicant’s statement for the first time. The applicant was reminded of his right to request the assistance of a lawyer, which he once again declined to do. The applicant largely reiterated the statement he had made to the gendarme officers earlier. He also repeated that he did not want to press charges against any particular person, as he did not believe that he had been shot intentionally. He did, however, reserve his right to claim compensation. 16. On 24 November 2008 the Foça public prosecutor delivered a decision not to prosecute. The public prosecutor found firstly that, in view of the statements of the applicant and of the witnesses and the manner in which the incident had occurred, the applicant had not been shot intentionally. He noted secondly that the forensic examination conducted on the applicant’s jacket had revealed that the shot had been fired from a long distance; however, the source of the shot had not been identified, as the bullet had for medical reasons not yet been extracted from the applicant’s body. Nevertheless, having regard to all the information in the case file and to the fact that a military firing practice had been underway a few kilometres away at the time of the incident, the public prosecutor found that the applicant had probably been hit by a stray bullet that had ricocheted during the firing practice. According to the public prosecutor, this offence was to be classified as one of causing bodily harm through negligence (taksir), as opposed to recklessness (bilinçli taksir), in view of the significant distance of the shooting range from the site of the incident. Since the prosecution of the offence of causing bodily harm through negligence required a formal complaint to be made by the victim (which was lacking in the instant case), the Foça public prosecutor decided to close the investigation. 17. On 12 January 2009, after medical complications had arisen, the bullet was extracted from the applicant’s body and handed over to the hospital police. On 6 February 2009 it was registered in the custody of the Foça public prosecutor’s office. 18. In the meantime, on 16 January 2009 the applicant lodged an objection against the decision of the Foça public prosecutor, with the assistance of his lawyer. The applicant’s lawyer stated that the decision to close the investigation had been taken prematurely, before the investigation process had been completed and the gun from which the bullet had been fired and the identity of the shooter had been identified. There had also not been an attempt to establish whether the bodily harm had been caused through negligence, recklessness, lack of experience or breach of duty or with intent. Moreover, requesting the victim to indicate whether he wanted to press charges without first having established the perpetrator and the nature of the offence did not comply with due procedure. 19. The applicant’s objection was rejected by the İzmir Assize Court on 24 April 2009. The assize court did not provide any justification for its decision, apart from stating that the Foça public prosecutor’s decision had been in compliance with the law. This decision was served on the applicant on 20 May 2009. 20. On 3 March 2009 the applicant lodged a request with the Ministry of the Interior (“the Ministry”) for pecuniary and non-pecuniary damages in respect of his wounding. The Ministry refused the request; the applicant then brought an action for compensation before the İzmir Administrative Court. 21. On 22 February 2012 the İzmir Administrative Court dismissed the applicant’s action. It held that while it was not disputed that the applicant had been wounded by a bullet, there was no tangible evidence to prove that the bullet in question had in any way been connected to the firing practice held by the 7th Gendarmerie Commando Regiment in Foça on the date in question. The criminal investigation into the incident had been closed on account of the applicant’s decision not to bring an official complaint, and the bullet extracted from his body after the closing of the investigation had therefore not been subjected to a ballistic examination. In these circumstances, by not pursuing his complaints the applicant had hindered the collecting of evidence that could have proved a causal link between the administrative act (idari eylem) and the damage sustained. In the administrative court’s opinion, the applicant had thus not proved his allegations. 22. On 22 October 2015 the Supreme Administrative Court upheld the judgment of the İzmir Administrative Court. 23. An internal administrative inquiry was also conducted by the military authorities into the applicant’s shooting. During the course of that inquiry thirteen gendarme officers of various ranks who had attended the firing practice in question were interviewed on 15 October 2008 by a lieutenant-colonel. The officers stated, in virtually identical words, that a firing practice had been held on 14 October 2008 between 7 p.m. and 10 p.m. with G3 rifles, that all necessary security measures had been taken at the shooting range prior to the commencement of the practice, in line with the applicable laws and instructions, that all rifles had been fired under the supervision of senior officers, that no firing had been permitted outside the designated shooting areas, and that, in view of the security measures in place and the distance of the applicant from the shooting range, the applicant should not have been affected by bullets fired during the practice. 24. On 22 October 2008 a report was issued on the findings of the administrative inquiry. According to this report, all requisite safety measures had been implemented at the shooting range on the date in question, in compliance with the relevant security regulations, and no fault or negligence had been found on the part of the military officers who had participated in the firing practice. The report indicated that additional security precautions had nevertheless been taken on the shooting range in the aftermath of the incident, such as adding to the sand bags and barrels behind the target boards, and building barriers in order to reduce the incidence of ricochets, and surrounding the gun-target line with additional barrels. | 1 |
test | 001-157509 | ENG | TUR | CHAMBER | 2,015 | CASE OF MÜDÜR DUMAN v. TURKEY | 3 | Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano;Ksenija Turković | 5. The applicant was born in 1956 and lives in Istanbul. 6. The applicant was the director of the Eminönü district branch of HADEP (Halkın Demokrasi Partisi – the People’s Democracy Party) in Istanbul at the time of the events giving rise to the application. 7. On 24 June 2000 a number of trade unions organised a demonstration in Istanbul. During the demonstration, some participants carried signs and chanted slogans in support of Abdullah Öcalan, the leader of the PKK (Kurdistan Workers’ Party), an illegal armed organisation. These demonstrators were identified by the police as members of HADEP. 8. On 26 June 2000 the public prosecutor at Istanbul State Security Court applied for a warrant to search the offices of four branches of HADEP to obtain incriminating evidence concerning the PKK. 9. On the same date the Istanbul State Security Court issued a search warrant. 10. That same evening police officers from the Istanbul police headquarters conducted a search of the Eminönü branch office of HADEP. The search protocol, which was signed by the applicant, indicated that illegal publications and flags and symbols of the PKK had been found there, together with pictures, articles and books pertaining to Mr Öcalan. 11. On the same date the applicant was taken to the Istanbul police headquarters for questioning. The police officers informed the applicant of his right under Article 135 (3) of the former Code of Criminal Procedure to request a lawyer. However, the applicant did not ask for a lawyer. In his statement, the applicant contended that, although he was the director of the Eminönü district office of HADEP, he was not always present at the office and that he had not been aware of the existence of the pictures and symbols regarding Mr Öcalan and the PKK found in the office. He similarly denied responsibility for the illegal publications and books which had been found on the premises, which he claimed had been brought in by publishers or other persons visiting the office without his knowledge. He claimed that whenever he came across similar pictures and symbols, he requested their removal. This statement was signed by the applicant. 12. On 27 June 2000 the applicant was questioned by the Istanbul public prosecutor, to whom he repeated the statement he had previously made to the police. The applicant also waived his right to request a lawyer before the public prosecutor. 13. On 30 June 2000 the Istanbul public prosecutor filed a bill of indictment against the applicant, charging him with praising and condoning acts punishable by law under Article 312 § 1 of the former Criminal Code. 14. On 19 January 2001 the Istanbul Criminal Court held the first hearing. At the end of the hearing, to which the applicant attended, the court decided to hold the next hearing on 15 June 2001. 15. On 15 June 2001, at the second hearing, the Istanbul public prosecutor presented his opinion (esas hakkında mütalaa) to the firstinstance court in the absence of the applicant. In his opinion, the public prosecutor advised that the court should find the applicant guilty as charged. The Istanbul Criminal Court accordingly convicted the applicant at the end of the hearing, and sentenced him to six months’ imprisonment and a fine of 91,260,000 old Turkish liras (TRL). In its judgment the domestic court held that the applicant’s defence lacked credibility and that the display of symbols and pictures pertaining to the PKK and Mr Öcalan in the party building amounted to the offence of praising and condoning acts punishable by law. 16. Through his lawyer the applicant appealed against this judgment. He claimed that he had not been duly reminded of his right to request a lawyer under Article 135 of the Code of Criminal Procedure during his questioning. He further argued that he had missed the hearing as he was delayed in traffic and the firstinstance court had taken its decision in his absence without giving him the opportunity to defend himself against the allegations of the public prosecutor. 17. On 5 June 2002 the Court of Cassation quashed the fine imposed, but upheld the remainder of the judgment. On 11 July 2002 this decision was deposited with the registry of the first-instance court. 18. On 31 January 2003 the applicant started serving his sentence. On 13 April 2003 he was released on parole. | 1 |
test | 001-146780 | ENG | CHE | GRANDCHAMBER | 2,014 | CASE OF GROSS v. SWITZERLAND | 1 | Preliminary objection allowed (Article 35-3 - Abuse of the right of petition) | Alvina Gyulumyan;András Sajó;Ann Power-Forde;Dean Spielmann;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Johannes Silvis;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Nebojša Vučinić;Nona Tsotsoria;Peer Lorenzen;Vincent A. De Gaetano | 9. The applicant was born in 1931 and died on 10 November 2011. 10. For many years the applicant had expressed the wish to end her life. She explained that she was becoming increasingly frail as time passed and was unwilling to continue suffering the decline of her physical and mental faculties. She decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. She contacted an assisted-suicide association – EXIT – for support, which replied that it would be difficult to find a medical practitioner who would be ready to provide her with a medical prescription for the lethal drug. 11. On 20 October 2008 a psychiatrist, Dr T., submitted an expert opinion in which he observed that there was no doubt that the applicant was able to form her own judgment. From a psychiatric medical point of view, Dr T. did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. However, he refrained from issuing the prescription himself on the grounds that he did not want to confuse the roles of medical expert and treating physician. 12. By letters of 5 November 2008, 1 December 2008 and 4 May 2009 the applicant’s representative submitted on her behalf a request to be given a prescription for sodium pentobarbital to three further medical practitioners, who all declined to issue the requested prescription. 13. On 16 December 2008 the applicant submitted a request to the Health Board of the Canton of Zurich to be provided with 15 grams of sodium pentobarbital in order for her to commit suicide. On 29 April 2009 the Health Board rejected the applicant’s request. 14. On 29 May 2009 the applicant lodged an appeal with the Administrative Court of the Canton of Zurich. On 22 October 2009 the Administrative Court dismissed the appeal. The Administrative Court considered, in particular, that the prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital was in accordance with Article 8 of the Convention. The requirement to obtain a medical prescription served the aim of preventing premature decisions and guaranteed that the intended action was medically justified. It further ensured that the decision was based on a deliberate exercise of the free will of the person concerned. The Administrative Court observed that Dr T., in his expert opinion, had not considered whether the applicant was suffering from any illness which would justify the assumption that the end of her life was near. The wish to die taken on its own, even if it was well considered, was not sufficient to justify the issuing of a medical prescription. Accordingly, the content of the case file did not demonstrate that the necessary prerequisites for issuing a medical prescription had been fulfilled in the instant case. There was therefore a need for further medical examination. Under these circumstances, the Administrative Court considered that there was no sufficient reason to dispense the applicant from the necessity of a thorough medical examination and of a medical prescription. 15. On 12 April 2010 the Federal Supreme Court dismissed an appeal lodged by the applicant. It observed, inter alia, that the applicant undisputedly did not fulfil the prerequisites laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences, as she was not suffering from a terminal illness, but had expressed her wish to die because of her advanced age and increasing frailty. Even though the Federal Supreme Court had previously considered that the issuing of a medical prescription for sodium pentobarbital to a person suffering from an incurable, persistent and serious psychological illness did not necessarily amount to a violation of a doctor’s professional duties, this exception had to be handled with “utmost restraint” and did not enjoin the medical profession or the State to provide the applicant with the requested dose of sodium pentobarbital to put an end to her life. The Federal Supreme Court further noted that the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was ready to issue the necessary prescription. This requirement could not be circumvented by the applicant’s request for an exemption from the necessity of obtaining a medical prescription. 16. On 10 November 2010 counsel for the applicant lodged an application with the Court. 17. On 24 October 2011 the applicant obtained a medical prescription for 15 grams of sodium pentobarbital signed by a medical practitioner, Dr U. On 10 November 2011 she ended her life by imbibing the prescribed substance. According to a police report dated 14 November 2011, no relatives of the deceased could be identified. The report concluded that the applicant had committed suicide with the assistance of EXIT and that no third person was found to be criminally liable in this context. 18. The Court was not made aware of the applicant’s death until 7 January 2014 (see paragraph 19 below). | 0 |
test | 001-140930 | ENG | ROU | CHAMBER | 2,014 | CASE OF NECULA v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos | 5. The applicant was born in 1970. He is currently detained in Mărgineni Prison. 6. On 22 November 2003 the applicant was detained pending trial on charges of aggravated murder and placed in Mărgineni Prison. 7. By a final judgment of 22 June 2007 the Dâmbovița County Court convicted him of aggravated murder and sentenced him to twenty-two years’ imprisonment. 8. On 27 July 2004 the applicant lodged his first application before the Court, namely application no. 31470/04, alleging that his rights under Article 3 of the Convention had been violated on account of, inter alia, the material conditions of his detention in Mărgineni Prison. He argued in particular that the cells were small and overcrowded; that the toilets were not separated from the cells, were uncovered and smelled badly because there was no running water; that he lacked sufficient physical exercise given that he was rarely taken out of his cell and allowed to walk in the small courtyard, which in any case smelled unpleasant; and that his food was inadequate and low in calories. 9. On 19 January 2009 the applicant’s complaint concerning the material conditions of detention was communicated to the Romanian Government and they were asked to submit observations on the admissibility and merits of the case. 10. On 9 June 2009 the observations submitted by the Romanian Government were forwarded to the applicant and he was asked twice to submit observations in reply. However, he failed to submit any observations. 11. By a decision of 3 July 2012 the Court decided to strike application no. 31470/04 out of its list of cases, pursuant to Article 37 § 1(a) of the Convention. The applicant did not ask for the aforementioned application to be restored to the Court’s list of cases. 12. According to the applicant, in Mărgineni Prison he had to sleep on metal beds with large holes in them. The cells lacked natural light and air, were squalid and damp, infested with lice and bed bugs, and there were no proper facilities for serving food. The sanitary facilities lacked air vents and running water and had no doors or mirrors, while the waste bins were made out of cut plastic containers. 13. The applicant attached to his letter several photographs allegedly taken by him in prison to support his allegations. 14. The applicant also contended that the food was poor and that he did not have access to adequate medical care. 15. The Government informed the Court that the applicant had been detained in Mărgineni Prison from 22 November 2003 to 26 April 2005, 18 to 21 July 2005, 10 August 2005 to 30 October 2007 and 2 November 2007 to the present date. 16. During his detention the applicant had stayed in several detention cells. 17. All the detention cells where the applicant had stayed had been connected to electricity, heating and water supplies. Each cell had a window measuring 0.92 metres long by 0.78 metres wide or 1.75 metres long by 1.25 metres wide, depending on the size of the cell and the number of occupants. The cells were aired manually by opening the available window. They had a separate area with sanitary and personal hygiene facilities, which could be accessed from the detention room directly. The sanitary facility area was fitted with an air vent. 18. The cells had individual beds and were adequately furnished for the detainees to be able to eat their meals and store their personal belongings. They were fitted with radiators connected to the prison’s own heating system, which provided an adequate temperature when needed. The sanitary utilities were functioning adequately and they were promptly fixed whenever they were damaged. 19. The detainees had permanent access to drinking water and bathed twice a week in specially designated areas, based on a schedule approved by the prison authorities. 20. The applicant received a diet which was served in accordance with the regulation in force. The quality of the food was checked daily by, inter alia, a medical office representative and a detainee representative. There was no indication that the food quality had been inappropriate during the applicant’s detention. The food was served in the cells, which were furnished with wooden tables and chairs or benches. 21. Hygiene in the cells was the detainees’ responsibility, and they were provided regularly with cleaning materials by the prison authorities. From 2009 to 2012 the cells were fumigated by specialist companies every quarter or periodically by the hygiene manager attached to the medical office. The inmates were provided with waste baskets and the sanitary facilities were cleaned daily with chlorine by the prison hygiene manager. 22. On an unspecified date the applicant brought proceedings against the Mărgineni Prison authorities, contending that his right to adequate medical assistance had been breached. He argued that on one occasion he had not been examined by the doctor and had been unable to purchase the prescribed antibiotics the following day. 23. By a decision of 18 November 2008 the judge responsible for the execution of prison sentences attached to Mărgineni Prison dismissed the applicant’s action on the grounds that the medical examination and the required treatment had been made available to him a couple of days later. There is no evidence in the file that the applicant appealed against the decision before the domestic courts. 24. On an unspecified date the applicant brought a new set of proceedings against the Mărgineni Prison authorities, contending that his rights to adequate medical assistance, to correspondence, to working and educational activities, as well as to access to running water and adequate detention conditions, had been breached. He had to share a cell with twenty other inmates, was involved in activities only once a week, was not provided with adequate medical care or given the correct diet. In addition, the sanitary facilities were out of order, the prison lacked running water, his cell was squalid and lacked air, his right of correspondence was restricted and he was not allowed to work. 25. By a decision of 19 September 2011 the judge responsible for the execution of prison sentences attached to Mărgineni Prison dismissed the applicant’s action. On the basis of the information provided by the prison authorities, it held that the size of the prison did not allow any reduction in the number of detainees per cell, and that the applicant’s cell allowed six cubic metres of air for each detainee. Moreover, he had access to daily activities and exercise, and was provided with adequate medical care in the prison hospital. His cell had been disinfected in August 2011 and no insects had been found during the sanitary inspection of September 2011. Furthermore, the applicant was provided with an adequate diet. The quality of the food was checked daily and there was no indication that it was of poor quality. In addition, the applicant’s cell was equipped with private and hygienic sanitary facilities, which provided permanent access to running water. Also, the applicant’s right to correspondence was observed. Lastly, his request to be allowed to work had not been examined by the work commission on the grounds that he did not meet the work-related requirements. The applicant appealed against the decision before the domestic courts. 26. On 14 December 2011 the Moreni District Court, sitting as a finalinstance court, dismissed the applicant’s appeal against the decision of 19 September 2011. It held that the applicant had failed to identify a particular circumstance when his right of correspondence had been breached. The distribution of correspondence to prisoners by the supervisors of the prison sections rather than by specially authorised personnel had not been unlawful. The applicant had made a general complaint about the absence of adequate medical treatment without identifying the circumstances in which his right had been breached. His medical file contained information that he had repeatedly refused treatment or examinations by specialist doctors. The quality of the food had been adequate and had been reviewed daily by a representative of the medical office. Although the cells were overcrowded, the detainees had access to the statutory number of cubic metres of air, and to sanitary facilities and installations which provided access to drinking water as well as adequate privacy. They also had access to daily activities and exercise. The photographs of the cell bathroom submitted to the court by the applicant did not prove the absence of running or drinking water. Some of the bathroom installations were indeed damaged or missing, but that was linked to the inmates’ behaviour and the limited budget available to the National Administration of Prisons. In addition, according to the documents submitted by the detention centre, in August 2011 the prison had been disinfected twice. The aspects the applicant complained of had been examined bearing in mind the needs of the other detainees and the aspects which made the observance of the detainees’ rights possible, namely the available staff and budget. Lastly, the applicant’s remaining complaints were examined and dismissed by the judge responsible for the execution of prison sentences on the basis of the documents submitted by the prison authorities. 27. On unspecified dates the applicant brought two further sets of proceedings against the Mărgineni Prison authorities, seeking an injunction to be allowed to receive several food items from his family. 28. By decisions of 10 January and 13 September 2012 the judge responsible for the execution of prison sentences attached to Mărgineni Prison allowed the applicant’s actions seeking to be allowed to receive several food items. | 1 |
test | 001-170281 | ENG | UKR | COMMITTEE | 2,017 | CASE OF YUDINA AND OTHERS v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time) | Carlo Ranzoni;Khanlar Hajiyev | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. In applications nos. 8416/06 and 53941/07 the applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-179403 | ENG | RUS | COMMITTEE | 2,017 | CASE OF AVDYUSHKIN v. RUSSIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Dmitry Dedov;Luis López Guerra | 6. The applicant was born in 1934 and lived in Moscow. 7. In June 1998 he deposited 5,187.40 United States dollars in a threemonth account with Russian Credit, a private bank. 8. In August 1998 the country suffered a financial crisis, the rouble fell, and the bank defaulted. In December 1998 the applicant accepted the bank’s offer to settle and close his account in return for the balance in depreciated roubles. By the time the money reached the applicant in March 1999, the rouble had depreciated further. 9. In October 1999 the bank went into external administration and its debt repayments were frozen pending a restructuring. 10. In May 2000 the bank and its creditors negotiated a group settlement of the pre-October 1999 debt and had it approved by the courts. The settlement discharged the bank from fines, penalties, default interest, and damages arising under legislation, contracts with clients, and court decisions. 11. In December 2001 the applicant sued the bank for the loss caused by the exchange-rate fluctuations between the day he had accepted the bank’s offer and the day the money had arrived. The bank objected to that claim on the ground that it had extinguished its obligations by repaying the deposit to the applicant. On 17 April 2002 the Golovinskiy District Court of Moscow awarded the applicant 77,603.50 Russian roubles (RUB). 12. In May 2003 the applicant filed a writ of execution with a bailiff. 13. On 17 June 2003, on the application of the bank, the District Court terminated the enforcement of its judgment in view of the group settlement. The District Court said: Considering the nature of the legal relationship at issue, the court takes into account the fact that the enforcement proceedings have been instituted with the purpose of collecting from [Russian Credit] the liabilities that had come into existence before 18 October 1999 inclusive and, under the ... terms of the friendly settlement, are related to [the bank’s] restructured liabilities subject to novation on the terms of the friendly settlement approved by a [court decision] that had defined the procedure and terms of the extinction of the liabilities. Pursuant to section 23 § 2 of the Federal Law on Enforcement Proceedings, the conclusion of a friendly settlement between a creditor and a debtor constitutes a ground for the termination of the enforcement proceedings, and therefore the [bank’s] application shall be granted and the [enforcement proceedings] shall be terminated. 14. In July 2003, in reply to the applicant’s query, the bank’s external administrator informed the applicant that his deposit had not been on the books and that under the terms of the group settlement his judgment debt could not be paid. 15. On 14 August 2003 the Moscow City Court upheld the District Court’s decision, finding that the applicant’s individual claim was to be settled with the group claim. The City Court said: When terminating the [enforcement] proceedings the [District Court] has referred to the provisions of section 439 of the Code of Civil Procedure and reached the conclusion that the terms of the said friendly settlement regarding the restructuring of the credit obligations of [Russian Credit] extended also to [the applicant]. The [City Court] agrees with the said conclusion of the [District Court] as based on the provisions of the law and confirmed by the circumstances of the present case. | 0 |
test | 001-153315 | ENG | HRV | CHAMBER | 2,015 | CASE OF RIBIĆ v. CROATIA | 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) | Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1954 and lives in Zagreb. 6. On 25 April 1992 the applicant married Ms Z.J. 7. On 9 October 1993 Z.J. gave birth to their son I.R. 8. In December 1993 Z.J., together with their son, moved out of the flat in which she had lived with the applicant and went to live with her parents. After that she started avoiding contact with the applicant. Prior to the institution of the divorce and custody proceedings in February 1996 (see paragraphs 9-30 below) the applicant saw his son only twice, in January 1994 and in 1995 during Easter holidays. The applicant and Z.J. officially divorced by a court judgment to that effect on 12 February 2002 (see paragraphs 21-22 below). 9. On 19 February 1996 Z.J. brought a civil action against the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking divorce, custody of, and the maintenance for their son. 10. On 22 April 1997 the court asked the Zagreb Social Welfare Centre (Centar za socijalnu skrb Zagreb, hereafter “the local social welfare centre”) to prepare a report on the family situation in the Ribić family and submit its recommendation as to whom of the parents custody of their son should be awarded. 11. The Government submitted that the applicant had ignored the local social welfare centre’s calls to attend interviews necessary for the preparation of the report by not collecting the centre’s letters to that effect from the post office. The applicant denied that allegation, noted that the Government had not substantiated it by relevant documents and invited them to do so. He further submitted that while it was true that in the period between 1993 and 2003 he had worked in Ljubljana (Slovenia) on weekdays, he had been staying in Zagreb every weekend. If there had been any problem with the service of the local social welfare centre’s correspondence to him, the centre should have contacted the advocate who had represented him in the civil proceedings in question. 12. On 7 July 1997 the applicant’s and Z.J.’ legal representatives agreed to temporarily suspend the proceedings (mirovanje postupka) for a period of three months with a view to reaching an amicable solution, which however did not materialise. 13. Thus, in the further course of the proceedings, on 23 January 1998, the court decided to obtain information on the parties’ income, and scheduled the next hearing for 20 April 1998 with a view to hearing the parties. 14. However, the hearing scheduled for 20 April 1998 was adjourned because the applicant did not attend it. 15. At the hearing held on 22 May 1998 the court again decided to hear the parties and invited Z.J. to provide information on her income, something the applicant had already done. 16. At that hearing and in his written submission of 9 March 1999 the applicant asked the court to issue a provisional measure whereby it would provisionally regulate his contacts with his son. According to the information submitted by the parties, the court did not decide on the applicant’s motion, apparently because under the legislation in force at the material time interim contact orders were in the exclusive jurisdiction of the social welfare centres as administrative authorities (see paragraph 81 below). 17. At the hearing held on 9 October 1998 the court heard the parties and decided to obtain an opinion from an expert in psychiatry with a view to deciding on custody and access rights. However, since the applicant and Z.J. did not advance the costs of the expert opinion until seven months later, the case-file was not sent to the appointed expert institution before 11 June 1999. 18. In the course of the preparation of the expert opinion, on 26 February 2000 the applicant met with his son, for the first time since Easter of 1995 (see paragraph 8 above). On the same date the applicant and Z.J. signed an agreement regarding the contact schedule they would propose to the court. In particular, it was agreed to propose to the court that the contacts between the applicant and his son take place in the presence of both parents for two hours on the premises specified by the local social welfare centre and in the presence of a child-welfare professional designated by the centre. In the first three months, the contacts were to take place twice a month, and thereafter every week. After a year the local social welfare centre were to assess the situation and propose further arrangements. 19. By 3 April 2000 the designated expert institution had finalised the expert opinion, which was received by the court 11 days later. The experts’ recommendation was in line with the parties’ agreement of 26 February 2000, which they endorsed. The experts particularly emphasised the need for the contacts between the applicant and his son to take place in the presence of Z.J. and a child-welfare professional designated by the local social welfare centre. 20. Since both parties objected to the expert opinion, the court held three more hearings, on 25 May and 14 and 28 September 2001 during which the court heard the psychiatrist who had prepared it. The court also obtained fresh information on the parties’ income with a view to deciding on the maintenance for their son. 21. On 26 October 2001 the Municipal Court pronounced judgment whereby it: (a) dissolved the marriage between the applicant and Z.J., (b) awarded custody of their son to Z.J., (c) granted the applicant access (contact) rights, and (d) ordered the applicant to regularly pay a certain amount of money as maintenance for his son. The relevant part of that judgment reads as follows: “Contacts between I.R. and his father Zdenko Ribić shall take place twice a month on Saturdays for two hours for the period of two months, and after that once a week on Saturdays in the child’s home in the presence of the mother and a psychologist or social worker. After a year the local social welfare centre may propose changes in the frequency [of contacts]. ... Since both parties repeatedly, by their non-attendance and their failure to advance the costs of the expert opinion, caused hearings to be postponed and thereby protracted the proceedings for several years ... each party should bear their own [litigation] costs.” 22. Following an appeal by both parties, on 12 February 2002 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment in so far as it concerned access rights and maintenance and remitted the case. It upheld the contested judgment in so far as it concerned divorce and custody, which part thereby became final. 23. In the resumed proceedings, the Zagreb Municipal Court held hearings on 5 July 2002, and on 27 January, 19 March and 12 July 2003. 24. In addition, on 26 August 2002 the court invited the local social welfare centre to prepare a report and submit its recommendation on the applicant’s contact with his son. In the course of their preparation the expert team of the centre, consisting of a social worker and a psychologist, conducted several joint and separate interviews with the parties. The centre’s experts also contacted the applicant’s son’s school and obtained an opinion on his school performance. 25. On 7 February 2003 the local social welfare centre submitted its report and recommendation to the court. Its expert team recommended that the contacts between the applicant and his son take place every second Saturday for two hours for the period of three months, and after that every Saturday, in the presence of the mother and a child-welfare professional. However, the centre’s experts suggested that the contacts should not take place in the child’s home as it was not a neutral ground and could give rise to conflicts between the applicant on the one side and Z.J. and her parents on the other. Their report indicated that the applicant’s son was very emotionally attached to his mother, that he did not know his father but wanted to meet him. The expert’s opinion also suggested that the centre impose a child-protection measure of supervision of exercise of parental authority focusing on contacts between the applicant and his son, with a view to facilitating those contacts and assisting the parents in improving communication between them (see paragraph 59 below). 26. At the hearing held on 19 March 2003 the court heard the parties. 27. On 4 July 2003 the court rendered a partial judgment whereby it decided on the maintenance for the applicant’s son. At the same time it decided to stay the proceedings in so far they concerned the applicant’s access rights pending the outcome of the concurrent civil proceedings his former wife had instituted against him with a view to depriving him of parental responsibility (see paragraphs 77-78 below). The applicant appealed. 28. On 3 February 2004 the Zagreb County Court dismissed the applicant’s appeal against the partial judgment on maintenance and upheld it. At the same time it quashed the first-instance decision to stay the proceedings and remitted the case. It held that the applicant had the right to maintain contact with his son as long as he was not deprived of parental responsibility. 29. In the resumed proceedings, on 23 July 2004 the Zagreb Municipal Court adopted a judgment whereby it again granted the applicant access rights and issued a detailed contact schedule. In particular, the court decided that in the first three months the contacts between the applicant and his son were to take place every second Saturday for two hours on the premises of the local social welfare centre and in the presence of the mother and either a psychologist or social worker designated by the centre. In the next three months the contacts were to be arranged in the same manner but every Saturday, and, after another three months, in the same way but in the absence of the mother. After nine months the applicant were to exercise his access rights for four hours every Tuesday and Thursday in those weeks when the applicant’s son had school in the morning, every second weekend, thirty days of summer and seven days of winter holidays, as well as every second official or church holiday. 30. On 12 April 2005 the Zagreb County Court dismissed an appeal by Z.J. and upheld the first-instance judgment. The first-instance judgment of 23 July 2004 became final when the second-instance judgment of 12 April 2005 was served on both parties on 29 June 2005. 31. As Z.J. refused to comply with the above judgment of 23 July 2004 and obstructed the exercise of the applicant’s access rights, on 12 May 2005 he applied for enforcement of that judgment before the Zagreb Municipal Court. 32. On 25 August 2005 that court issued a writ of execution (rješenje o ovrsi) whereby it ordered Z.J., at the risk of fine of 3,000 Croatian kunas (HRK), to allow the applicant to exercise his access rights. 33. On 8 November 2005 the Zagreb County Court dismissed an appeal by Z.J. and upheld the writ. 34. On 2 December 2005 the local social welfare centre informed the court that Z.J. was not complying with judgment of 23 July 2004 as she had not been bringing the applicant’s son to the scheduled meetings on the centre’s premises where the contacts between him and the applicant were to be arranged. The centre thus asked to court to enforce the judgment through a judicial enforcement officer. 35. On 22 December 2005 the Zagreb Municipal Court issued a decision whereby it fined Z.J. HRK 3,000 for non-compliance with the judgment of 23 July 2004, and again ordered her, at the risk of further fine of HRK 6,000, to do so within fifteen days. Z.J. appealed but on 21 November 2006 the County Court dismissed her appeal. 36. In the meantime, on 29 December 2005, Z.J. asked for postponement of enforcement but the Municipal Court dismissed her motion. 37. Since Z.J. had paid the fine but nevertheless did not comply with the judgment, on 30 November 2006 the Zagreb Municipal Court accepted the applicant’s motion of 27 September 2006 and issued a new writ of execution whereby it ordered a judicial enforcement officer, with the assistance of a pedagogue or a social worker employed with local social welfare centre, and a police officer, to take the applicant’s son from Z.J., or any other person each time the applicant was entitled pursuant to the contact schedule to exercise his access rights, and to return him to her afterwards. Even though the court ordered that the costs of that intervention by the enforcement officer were to be borne by Z.J., it invited the applicant to advance those costs within eight days of the service of the writ. 38. By a decision of 14 February 2007 the Municipal Court discontinued the enforcement proceedings because the applicant had not advanced the costs. The applicant then first on 7 March 2007 appealed against that decision but, on 29 March 2007 withdrew that appeal and, eventually, on 23 November 2007 withdrew his application for enforcement of 12 May 2005 (see paragraph 31 above). 39. Accordingly, on 4 December 2007 the Zagreb Municipal Court discontinued the enforcement proceedings. 40. Meanwhile, on 23 April 2007 the applicant again applied for enforcement of the above judgment of 23 July 2004 (see paragraph 29 above) before the Zagreb Municipal Court. 41. On 6 December 2007 that court issued a writ of execution identical to the one of 30 November 2006 (see paragraph 37 above). 42. On 24 December 2007 Z.J. appealed against the writ and on 2 January 2008 sought that the enforcement be postponed. 43. On 6 February 2008 the Zagreb Municipal Court dismissed Z.J.’s motion for postponement of the enforcement. On 25 February 2008 Z.J. appealed against that decision. 44. On 28 February 2011 the Municipal Court forwarded Z.J.’s appeals of 24 December 2007 and 25 February 2008 to the Zagreb County Court for a decision. 45. By a letter of 19 April 2011 the County Court returned the case file to the Municipal Court asking it to correct certain errors in the first-instance proceedings. 46. In the meantime, on 10 June 2009 the applicant had lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Supreme Court (Vrhovni sud Republike Hrvatske), complaining about the length of the second set of the enforcement proceedings. 47. On 26 September 2011 the Supreme Court found a violation of the applicant’s right to a hearing within a reasonable time and: (a) awarded him HRK 5,000 in compensation, (b) ordered the Zagreb Municipal Court to correct the errors indicated in the Zagreb County Court’s letter of 19 April 2011 within a month (see paragraph 45 above), and (c) ordered the Zagreb County Court to decide on Z.J.’s appeals of 24 December 2007 and 25 February 2008 within three months upon receiving the case file again from the Municipal Court. 48. By decisions of 6 March 2012 the County Court dismissed Z.J.’s appeals of 24 December 2007 and 25 February 2008. 49. Meanwhile, on 9 October 2011 the applicant’s son turned eighteen and became an adult. Accordingly, the above enforcement proceedings became obsolete. Consequently, by a decision of 13 January 2013 the Municipal Court discontinued the enforcement proceedings. 50. Parallel to the above civil proceedings concerning inter alia custody and access, the local social welfare centre acted in various ways in order to solve the family conflicts. 51. On 20 March 2003 the local social welfare centre issued a decision whereby it provisionally granted the applicant access rights until the judgment in the above civil proceedings became final, and issued a contact schedule. In particular, the centre decided that the contacts between the applicant and his son were to take place every second Friday for one hour on its premises in the presence of a child-welfare professional for a period of three months. The decision specified that an appeal against it did not suspend its enforcement. On 14 April 2003 Z.J. appealed against that decision. 52. On 15 April 2003 the centre informed Z.J. of the need to cooperate with it and enable the contacts between the applicant and his son. It warned her that the failure to do so may be considered as dereliction of her duties as a parent calling for more stringent child-protection measures. 53. On 27 June 2003 the applicant applied to the centre for enforcement of its decision of 20 March 2003. 54. However, acting on the appeal by Z.J. of 14 April 2003, on 22 September 2003 the relevant Ministry, as the second-instance administrative authority, quashed the centre’s decision of 20 March 2003 and remitted the case. Accordingly, on 3 December 2003 the centre discontinued the administrative enforcement proceedings instituted by the applicant on 27 June 2003. 55. On 30 October 2003 the applicant applied to the centre to issue a new decision on his access rights. 56. On 22 December 2003 the local social welfare centre issued a new decision whereby it again provisionally granted the applicant access rights until the judgment in the above civil proceedings became final, and issued a new contact schedule. The decision specified that an appeal against it did not suspend its enforcement. On 19 January 2004 Z.J. appealed. 57. On 13 July 2004 the relevant Ministry dismissed that appeal and upheld the centre’s decision. Z.J. then brought an action in the Administrative Court against the Ministry’s decision, which that court dismissed on 17 February 2005. 58. In the meantime, on 15 October 2004 the applicant applied for enforcement of the local social welfare centre’s decision of 22 December 2003 (see paragraph 56 above). However, it would appear that before 29 June 2005, that is, the date on which the judgment of the Zagreb Municipal Court of 23 July 2004 in the above civil proceedings became final (see paragraph 29-30 above) and thus superseded the decision the applicant sought to enforce, the local social welfare centre did not issue an enforcement order or undertake other steps to enforce its decision. 59. Concurrently with the administrative proceedings described above (see paragraphs 51-58), the local social welfare centre conducted other administrative proceedings. In particular, by a decision of 23 December 2003 the local social welfare centre imposed a child-protection measure of supervision of the exercise of parental authority (see paragraph 82 below) for a period of one year, appointed a supervising officer and drafted a supervision programme. 60. On 2 February 2004 the supervision officer informed the centre that Z.J. ignored her calls to arrange the first meeting between the applicant and his son in the execution of the centre’s decision of 22 December 2003 (see paragraph 56 above) granting him provisional access rights. On the same day the centre adopted the opinion that the supervision measure should be discontinued as ineffective and that criminal-law measures should be set in motion instead (see paragraph 68 below). 61. On 1 March 2004 the supervising officer submitted her report to the centre stating that no contacts between the applicant and his son had taken place since the adoption of the centre’s decision of 22 December 2003 (see paragraph 56 above). At the same time she proposed that the contacts between the applicant and his son be arranged on school premises in the presence of a pedagogue. 62. By a decision of 9 March 2004 the centre discontinued the application of the child-protection measure of supervision of the exercise of the parental authority imposed by its decision of 23 December 2003 (see paragraph 59 above). It stated that the measure was ineffective given Z.J.’s lack of cooperation and that other, more stringent, child-protection measures were warranted. On 17 March 2004 Z.J. appealed against that decision. 63. On 17 February 2005 the relevant Ministry quashed the centre’s decisions of 23 December 2003 and 9 March 2004 (see paragraphs 59 and 62 above) and remitted the case. 64. In the resumed proceedings, after having heard the applicant and Z.J. on 19 April 2005, by a decision of 13 May 2005 the centre again imposed the child-protection measure of supervision of the exercise of parental authority for a period of one year, appointed a supervising officer and prepared a programme of supervision. Z.J. appealed. 65. On 3 June, 4 and 31 July 2005 the supervising officer informed the centre that contacts between the applicant and his son had not taken place due to Z.J.’s lack of cooperation. 66. On 29 December 2005 the relevant Ministry dismissed an appeal by Z.J. and upheld the centre’s decision of 13 May 2005 (see paragraph 64 above). 67. The child-protection measure imposed by the centre in its decision of 13 May 2005 expired on 15 May 2006. Monthly reports submitted by the supervising officer suggest that in that one-year period the applicant had not met his son. 68. On 5 February 2004 the local social welfare centre invited the Zagreb State Attorney’s Office to bring criminal charges against Z.J. for her failure to cooperate with the centre and the supervising officer, obstruction of measures issued by the centre and dereliction of her duties as a parent regarding her son’s contacts with his father. 69. On 24 March 2004 the Zagreb State Attorney’s Office informed the social welfare centre that, for the time being, there were no grounds to prosecute Z.J. for the criminal offence of obstruction of the child-protection measures defined in section 215 of the Criminal Code (see paragraph 84 below) because the decisions whose execution Z.J. allegedly obstructed had not become final. 70. On 14 April 2004 the applicant filed a criminal complaint against Z.J. with the same State Attorney’s Office accusing her of the same criminal offence. 71. On 29 September 2004 the State Attorney’s Office dismissed his criminal complaint. In so doing, it advanced the same reasons as those stated in its letter to the social welfare centre of 24 March 2004 (see paragraph 69 above). 72. On 18 November 2005 the local social welfare centre informed the State Attorney’s Office that decisions whose execution Z.J. had been obstructing had become final and invited the State Attorney’s Office to criminally prosecute her. 73. On 5 December 2005 the State Attorney’s Office indicted Z.J. before the Zagreb Municipal Court for having been obstructing the court-ordered contacts between the applicant and his son. In particular, she was charged with the criminal offence of obstruction of child-protection measures laid down in section 215 of the Criminal Code (see paragraph 84 below). 74. By a judgment of 24 June 2008 the Municipal Court found Z.J. guilty as charged and convicted her but the judgment was subsequently quashed by the Zagreb County Court following her appeal and the case was remitted. 75. In the resumed proceedings, by a judgment of 24 January 2011 the Zagreb Municipal Court again found Z.J. guilty as charged and sentenced her to five months’ imprisonment but imposed a suspended sentence with supervision (uvjetna osuda sa zaštitnim nadzorom) for a period of three years provided that in that (probation) period she did not commit a further offence. In its judgment the court noted, inter alia, the following: “This court is deeply aware that all decisions and judgments including this one can no longer remedy the harm and evil caused by the conduct of the accused, primarily to her child, who grew up without a father ... However, it can at least emphasise that such behaviour is unacceptable and punishable ... When determining the penalty the court took into account, as aggravating circumstances, the fact that for a number of years the accused deliberately, perfidiously and deceitfully obstructed enforcement of any court decision or decision of the social welfare centre and in so doing behaved arrogantly and acted as if she was untouchable and in that way hindered a healthy and undisturbed development of her son. The court did not find any special mitigating circumstances.” 76. By a judgment of 16 March 2012 the Zagreb County Court dismissed an appeal by Z.J. and upheld the first-instance judgment. 77. In 2002 Z.J. instituted non-contentious proceedings against the applicant before the Zagreb Municipal Court with a view to depriving him of parental responsibility for his son. 78. By a judgment of 2 November 2004 the court dismissed Z.J.’s petition. It held that her claims that the applicant had abandoned his son, grossly neglected his duties as a parent and failed to pay (regularly) for his maintenance were unfounded. In so doing it relied on the report of the local social welfare centre suggesting that it was Z.J. who had obstructed the applicant’s contacts with his son. | 1 |
test | 001-171971 | ENG | DEU | CHAMBER | 2,017 | CASE OF FRÖBRICH v. GERMANY | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public hearing) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary | 5. The applicant was born in 1934 and lives in Strausberg. Before the reunification of Germany he lived in the former GDR, serving in the police force from 1952 to 1954. 6. On 13 June 1958, the Frankfurt (Oder) District Court convicted the applicant of “criminal assault against the local bodies of the State” (“verbrecherischer Angriff gegen die örtlichen Organe der Staatsmacht”) after he had attacked a member of the GDR parliament of the ruling Socialist Unity Party. He was sentenced to one year and eight months’ imprisonment and served 14 months in prison. 7. On 8 February 1994 the Frankfurt (Oder) Regional Court annulled the 1958 judgment for its incompatibility with the principles of the rule of law and rehabilitated the applicant pursuant to Section 1 § 1 of the Criminal Rehabilitation Act (Gesetz über die Rehabilitierung und Entschädigung von Opfern rechtsstaatswidriger Strafverfolgungsmaßnahmen im Beitrittsgebiet Strafrechtliches Rehabilitierungsgesetz) designed to rehabilitate and compensate prisoners of the GDR regime for deprivation of their liberty incompatible with the principles of the rule of law. 8. On 25 April 1994 the applicant lodged an application for compensation under the Criminal Rehabilitation Act. The application form contained instructions that, according to Section 16 § 2 of the Act (see Relevant domestic law and practice, paragraphs 23 and 24 below), such compensation could not be granted to a person who had offended against the principles of humanity and the rule of law. The applicant declared on the questionnaire that he had never acted in disregard of these principles and never worked for the former GDR’s Ministry of State Security (Ministerium für Staatssicherheit). On 13 February 1995 the President of the Frankfurt (Oder) Regional Court, acting as the competent authority, awarded him compensation of 8,250 German marks, equivalent to about 4,218 euros (EUR), pursuant to Section 17 in conjunction with Section 16 §§ 1 and 3 of the Criminal Rehabilitation Act. 9. On 7 August 2007, after an amendment of the Act, the applicant also applied for a special, incomerelated pension which benefits former victims of imprisonment (monatliche besondere Zuwendung für Haftopfer). He again confirmed that he had never offended against the principles of humanity and the rule of law and never worked for the former GDR’s Ministry of State Security. On 14 November 2007 he was granted a special monthly pension of EUR 250 pursuant to Section 17a of the Criminal Rehabilitation Act, with the reservation that information held by the Federal Commissioner for the Records of the State Security Service of the former GDR (“the Federal Commissioner”) must not contradict the applicant’s statements. A respective request for information was submitted on 19 November 2007. 10. On 25 February 2008 the Federal Commissioner informed the President of the Regional Court that the applicant, between 22 September 1953 and 25 November 1954, had been a secret informant of the Ministry of State Security while he was a member of the police force. This information was based on a number of documents, including 32 handwritten reports allegedly drafted by the applicant and a declaration to commit to serve as a secret informant to the state security service. 11. On 18 February 2009 the President of the Regional Court, relying on Section 48 §§ 1 and 2, third sentence, no. 2 of the Brandenburg Administrative Procedure Act (Verwaltungsverfahrensgesetz für das Land Brandenburg), withdrew the decisions granting compensation and a special pension and at the same time ordered the applicant to reimburse the amounts already received pursuant to Section 49a of the same Act. The President considered that the decisions had been unlawful from the beginning as the prerequisites for either entitlement had never been met and that the applicant could not legitimately rely on these decisions being maintained, as he had obtained them by giving information that was substantially incorrect. Referring to Section 16 § 2 of the Criminal Rehabilitation Act, he observed that the applicant, contrary to the statements in his applications, had worked as a secret informant for the Ministry of State Security and had produced at least five reports for the Ministry in which he put at real risk the persons on whom he had informed. 12. On 9 March 2009 the applicant applied for judicial review of that decision and asked to be heard in person. He claimed that the information contained in the documents of the Federal Commissioner was incomplete and not accurate. The fact that at the time of recruitment he was only 19 years old and had been severely traumatised when fleeing his home town in Silesia in 1945 and experiencing the bombing of Dresden on 13 February 1945, followed by several months of homelessness after the war had ended, also had to be taken into account. His father had returned, incapacitated for work, from Soviet captivity only in 1947 or 1948. While serving in the police forces he had not been aware of working for other government agencies. The written commitment to the state security service might have been dictated to him when he was under the influence of alcohol but he had no memory of it whatsoever. In any case, he ruled out that the wording was his own and that he had known that the reports were to be used by the state security service. 13. On 16 February 2010 the Frankfurt (Oder) Regional Court, sitting as a chamber of three judges, dismissed the applicant’s request for judicial review, finding that his work as a secret informant for the Ministry of State Security was of such nature, scope and duration that it was reprehensible enough to justify ruling out the applicant’s eligibility for compensation payments pursuant to Section 16 § 2 of the Criminal Rehabilitation Act. Acknowledging that in a dictatorship which lasted for decades, minor involvement with the regime was frequent, it considered that the applicant’s position as a secret informant of the state security service did not itself suffice to trigger the application of that provision. However, compensation provided under the Act was intended to benefit innocent victims only, but not those who had also participated in offences contrary to the principles of humanity and which were harmful to others or at least put them at risk. This could be assumed when a secret informant voluntarily reported on others and the reports could potentially cause persecution by the state security service. In that case compensation payments were ruled out, no matter how great the offender’s own suffering had been. The courts were not to compare the extent of suffering involved. 14. The Regional Court observed that the applicant had penned a handwritten commitment to serve the state security service after he had already reported twice on others. Thus the applicant’s submission that he had believed that he was reporting to police officers and not to the state security service was, in the light of that declaration, not credible (“nicht glaubhaft”). Furthermore, the five reports mentioned in the decision of the President of the Regional Court, as well as two more reports were capable of putting in danger the persons informed on. The applicant mainly reported on their contacts with West Germany and West Berlin. An intention to leave the former GDR without permission, in particular, could have led to severe criminal persecution of the persons involved. The reports were not meaningless but contained valuable information for the state security service. The applicant’s claim that some reports were unknown to him and factually incorrect and that he did not recognise the names of the superior officers was irrelevant to the Regional Court’s decision. 15. The Regional Court also pointed out that it was unnecessary to hear the applicant in person. His personality at the time and the circumstances of his recruitment would have been relevant only if there were indications that the applicant acted under insupportable pressure. However, there were no such indications and the applicant had made no claims in this regard. He had reported twice on others, even before being recruited by the state security service. Further, the court could not see a connection between the applicant’s experiences relating to the impact of war and the post-war period on him and his psychological strain at the time of recruitment on the one hand and his willingness to cooperate with the state security service on the other hand. 16. On 24 August 2010 the Brandenburg Court of Appeal dismissed the applicant’s appeal, endorsing the Regional Court’s reasons. 17. On 28 October 2010 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons (2 BvR 2329/10). | 0 |
test | 001-140396 | ENG | PRT | COMMITTEE | 2,014 | CASE OF MONTEIRO AIRES v. PORTUGAL | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Helen Keller;Paulo Pinto De Albuquerque | 4. The applicant was born in 1946 and lives in Matosinhos (Portugal). 5. On 11 January 2006 the applicant started eviction proceedings against three tenants before the Court of Matosinhos (domestic proceedings no. 355/06.3TBMTS). 6. On 23 February 2006 the court ordered their eviction and ordered the tenants to pay 2,170 euros (EUR) for rent arrears. 7. On 14 September 2006 the applicant started enforcement proceedings. 8. The following month the court ordered the seizure (penhora) of one third of one of the tenant’s income (executado). The payment of the debt began in December. 9. Meanwhile, the tenant had asked the court to reduce the deducted amount to one sixth of his salary. The court ordered that reduction on 10 January 2007. 10. The payments stopped on 7 October 2008, when the tenant became unemployed. 11. Between October 2008 and September 2009 the enforcement solicitor (solicitador de execução) tried to find attachable assets. 12. In September 2009 the parties made an agreement according to which the debtor’s wife would continue to pay the arrears in instalments, which she did for one year. 13. According to the last information received by the Court on 17 April 2013, the proceedings were pending. | 1 |
test | 001-166686 | ENG | UKR | COMMITTEE | 2,016 | CASE OF MUSHYNSKYY v. UKRAINE | 4 | Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) | André Potocki;Ganna Yudkivska;Síofra O’Leary | 4. The applicant was born in 1979 and is currently serving a prison sentence in Ukraine. 5. On 29 October 2004 the applicant was arrested on suspicion of murder, robbery and attempted murder. He remained in police custody until 17 January 2005. 6. The applicant alleged that during his stay in police custody between 29 and 31 October 2004 he had been tortured by unspecified police officers, as a result of which he had confessed to having committed the crimes of which he was suspected. In the course of a medical examination on 1 November 2004 the doctors noted a number of bruises and lesions on the applicant’s limbs, chest and back The applicant alleges that no medical treatment was given to him for his injuries. 7. The applicant stated that he had subsequently brought his allegation of ill-treatment by the police before the trial courts but the courts had not responded to it. He provided no copy of his complaints. 8. On 1 November 2004 the applicant was taken to court; the court ordered his remand in custody pending completion of the criminal investigation against him. 9. On 17 January 2005 the applicant was placed in a cell in Kyiv Temporary Investigative Isolation Unit (“SIZO”) no. 13. 10. On 24 March 2005, following his conviction (see paragraph 21 below), he was transferred to a high-level security cell within the same SIZO for detainees sentenced to life imprisonment by a final judicial decision. From that day onwards the rules applicable to this latter category of detainees had also been applied to the applicant. In particular, his clothes were taken away from him and instead he was given special orange clothes bearing the words “life imprisonment” in large print on the front and back; when leaving his cell the applicant had at all times been escorted by a special unit of guards in black uniforms with masks covering their faces. 11. The applicant complained to the courts about the allegedly unlawful execution of his sentence. On 24 March 2006 the Shevchenkivskyy District Court refused to consider his complaint for lack of substantiation and failure to pay the court fee. The applicant did not appeal against that ruling. 12. On 14 December 2005 the applicant was placed in Sokalska Correctional Colony no. 47 (the “Sokalska Colony”). In March 2012 the applicant was transferred to the SIZO in Lviv, which was later reorganised as a detention centre for convicted prisoners. 13. According to the applicant, the conditions of his detention in the colony were debasing. In particular, he alleged that the drinking water and food had been of poor quality, that he had not received adequate medical assistance and that he had been subjected to psychological pressure by the colony staff. 14. The applicant raised those allegations before the prosecutors. On 23 June 2006, the deputy prosecutor responsible for supervising prison authorities’ compliance with the law informed him by letter that an inquiry had been carried out into his allegations but that it had not revealed any irregularities in his conditions of detention. According to the medical information submitted by the applicant, while in detention he had been medically examined and had been given the necessary treatment. 15. The applicant alleged that in the course of the investigations and the trial he had been prohibited from corresponding by ordinary mail with his relatives and his counsel and from making telephone calls. The applicant did not raise those allegations before the authorities. 16. Between 24 March and 4 August 2005 the applicant had four onehour visits from his mother and father. 17. The applicant stated, in general terms, that following his conviction on 24 March 2005 he had not been allowed to have long meetings with his relatives and that the duration and frequency of the short visits they had been permitted to make had been considerably limited. He provided no further details in that regard. 18. During his first interrogation, on 30 October 2004, the applicant had the assistance of a lawyer of his own choosing. The next day, due to the latter’s failure to appear, the applicant was assisted by a lawyer appointed for him by the authorities. On an unspecified date the applicant hired a new lawyer, who continued to defend him during the investigation and trial. The applicant’s mother also took part in the proceedings as the applicant’s representative. 19. In the course of the investigation and trial, the applicant admitted that he had committed the murders and the attempted murder of which he was suspected. 20. The criminal investigation of the applicant’s case was completed in January 2005. Subsequently, the criminal case was referred to the Kyiv Regional Court of Appeal for trial. 21. On 24 March 2005 the court found the applicant guilty of the aggravated murder of two persons ‒ one of whom was a minor ‒ and of the attempted murder of another person, with the aim of stealing the victims’ property. The court based its judgment on statements made by the applicant during the investigation and at the trial, the testimonies of one of the victims and six witnesses – one of whom had caught the applicant at the scene of the crime − and the conclusions of several forensic examinations, including a psychiatric examination which found that the applicant had been aware and in control of his actions at the time of the offences. The applicant was held to be exceptionally dangerous to society and was sentenced to life imprisonment, together with the confiscation of all his property. 22. The same judgment ordered his continuing detention in the Kyiv SIZO. 23. The applicant lodged an appeal. He contended that he had committed the crimes whilst of unsound mind and requested an additional psychiatric examination. 24. In his appeal, the applicant’s lawyer contested the first-instance court’s finding that the applicant had committed the murders with the aim of stealing the victims’ property. 25. On 4 August 2005 the Supreme Court upheld the judgment of 24 March 2005 and it accordingly entered into force on that date. 26. In December 2005 the applicant requested that the Kyiv Regional Court of Appeal provide him with copies of certain documents from his case file, including the verbatim records of his questioning during the investigation, the decisions concerning his detention, and various procedural decisions taken in the course of the investigation and trial, which he intended to submit to the Court in support of his application. In a letter dated 19 January 2006, a Court of Appeal judge informed the applicant that his request had been refused, pointing out that the procedure governing applications to the European Court of Human Rights did not require the submission of the documents of which the applicant had sought copies. 27. On an unspecified date the applicant’s mother, acting on his behalf, made similar requests, which were refused by the Deputy President of the Court of Appeal on 14 and 30 March 2006, on the same grounds. | 1 |
test | 001-158271 | ENG | CYP | ADMISSIBILITY | 2,015 | KONSTANTINOU AND OTHERS v. CYPRUS | 4 | Inadmissible | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev | 1. The eight applicants in this case are all Cypriot nationals and retired army colonels. Their case concerns the conditions under which they retired from the Cypriot National Guard. They are represented before the Court by Mr A. Markides, a lawyer practising in Nicosia with Markides Markides & Co. A list of the applicants is set out in the appendix. 2. At the material time the conditions of service of commissioned army officers in the Cypriot National Guard, including matters of promotion and retirement, was regulated by the Army of the Republic Law of 1990 and by the Officers of the Army of the Republic (Appointments, Hierarchy, Promotions and Retirements) Regulations of 1990–2002 (“the Regulations”). 3. Pursuant to the Regulations, each officer was subject to an annual performance review by the Army’s Supreme Evaluations Board. Under Regulation 14(3) and (4), that review would lead to one of four category ratings/outcomes: (i) the officer being promoted; (ii) the officer being confirmed in the post at the same rank; (iii) the officer being deemed to have “successfully terminated his or her career”. This would be the case if he or she did not meet the criteria either for promotion or confirmation in post (i.e. categories (i) and (ii) above) and his or her further service would hinder the advancement of younger officers; or (iv) the officer being retired. This would be the case when it was not considered appropriate for the officer to continue exercising the duties of his or her rank owing to a lack of substantial qualifications. 4. As a means of allowing officers of lower ranks to advance to higher ranks, Regulation 18(1) provided that, of the senior officers evaluated by the Supreme Evaluations Board every year, a certain percentage were to be considered as falling within categories (iii) and (iv). For colonels, the percentage was to range from 30–40%. Regulation 18(2) provided that, in complying with Regulation 18(1), the Supreme Evaluations Board should accord priority to requests from officers for retirement on the basis of having successfully terminated their career. 5. Regulation 19(1)(b) and (c) of the Regulations sets out the terms on which an officer falling within categories (iii) and (iv) would leave the army. 6. For colonels, this regulation provided that a colonel who received a category (iii) rating would be promoted one rank, that is to brigadier, on the day proceeding his or her retirement. His or her pension would then be calculated based on the salary a major general (one rank higher than a brigadier) received at the full age of retirement. The officer would also receive a lump sum payment calculated with reference to his or her pension. 7. By contrast, a colonel compulsorily retiring with a category (iv) rating would do so at his or her existing rank. His or her pension would be calculated based on the salary of a brigadier at full retirement age and the lump sum payment would be calculated with reference to his or her pension. Thus the pensions and lump sum payments would be higher for a colonel on a category (iii) rating than a category (iv) rating. 8. The applicants were all colonels in the Cypriot National Guard. Between February 2003 and February 2004, they submitted requests for retirement on the basis of having successfully terminated their career, pursuant to Regulations 14(4)(c) and 18(2). Their written requests specified that these were without prejudice to any legal rights which might arise from any declarations of unconstitutionality or nullity of the Regulations. 9. The Supreme Evaluations Board considered the requests of the first five applicants at its annual meeting on 9 May 2003; it considered the remaining requests on 9 March 2004. It approved all eight requests and the applicants were consequently deemed to have successfully completed their military careers. In accordance with Regulation 19, the applicants were promoted from colonel to brigadier with effect from the day before their retirement, and their pensions and lump sum payments were determined with reference to the salary of a major-general. 10. In 2002, the Supreme Evaluations Board gave category (iii) ratings to a number of officers who had held the same rank and who had completed the same number of years of service as the applicants. These officers had not submitted requests for voluntary retirement: the category (iii) rating was the result of their annual performance review. 11. These officers applied to the Supreme Court for annulment of the Board’s decisions claiming that they deserved a higher rating. 12. On 15 September 2004, the Supreme Court annulled the Board’s decisions, finding that the Board had failed properly to examine whether the conditions in the 2002 Regulations had been met. The court found that it was not open to the Board to find that officers would not qualify for receiving category (i) or (ii) ratings simply in order to fill the 30-40% quota for category (iii) ratings set out in the Regulation 18(1). 13. Further to the decision, the Ministry of Defence made settlement offers to the officers concerned. The offers included the following terms: (i) the officers would be re-evaluated for the years 2002-2004 and, as a result, some of them would be promoted from colonel to brigadier. (ii) the officers would receive an ex gratia payment of CYP 4,000 (EUR 6,834) for each year they would have served before reaching the age of mandatory retirement which applied to their new ranks (sixty years of age for brigadiers as opposed to fifty-eight for colonels). 14. Having accepted these settlement offers, the officers submitted requests for voluntary retirement. These requests were accepted by the Ministry of Defence and they retired in April 2005. 15. On 23 January 2006, the applicants wrote to the Minister of Defence requesting that the offers made to their fellow officers should also apply to them since their requests for voluntary retirement had been made without prejudice (see paragraph 8 above). 16. The Minister rejected the applicants’ request on 17 February 2006, relying on legal advice to the effect that the Supreme Court’s decision of 15 September 2004 had not annulled the 2002 Regulations and the settlement the Ministry had reached with the other officers was in conformity with the Supreme Court’s decision. 17. The applicants challenged the Minister’s refusal before the Supreme Court, submitting that it was contrary to the principles of equality and nondiscrimination enshrined in Article 28 of the Constitution (see paragraphs 20 and 21 below). 18. On 20 July 2007 a single judge of the Supreme Court annulled the Minister’s decision. The judge noted that the Minister had accepted that the applicants were in an equivalent position to their fellow officers in terms of rank and years of service, but had submitted that there was a reasonable distinction between the two groups: the latter group had sought to vindicate their rights through the courts and thus the extra benefits they had received were provided pursuant to Article 146(6) of the Constitution (the right to damages in administrative recourse proceedings before the Supreme Court: see paragraph 22 below). The judge found that the only distinction between the two groups was that the other officers had submitted their requests for voluntary retirement after succeeding in their applications to the Supreme Court. There was thus no reasonable distinction between those officers and the applicants and, in the applicants’ case, there had been a violation of Article 28 of the Constitution. 19. The Minister appealed against the decision of the single judge to the plenary of the Supreme Court and, on 14 June 2011, the plenary court allowed the Minister’s appeal (appeal no. 131/2007). The court found that applicants had accepted the terms of their retirement unconditionally and without reservation. By contrast, the other officers had contested the legality of the Board’s decisions in their cases and they had subsequently received benefits that were determined in light of the Supreme Court’s judgment annulling the Board’s decisions. In addition, the other officers had continued to serve in the National Guard while their appeal to the Supreme Court had been pending and until they accepted the settlement offers made by the Ministry of Defence. The context surrounding the two groups of officers was different and therefore there had been no discrimination contrary to Article 28. 20. Article 28(1) of the Constitution provides that everyone shall be equal before the law, administration and justice, and everyone shall be entitled to equal protection and treatment. Article 28(2) protects against direct and indirect discrimination on ground of community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in the Constitution. 21. Article 28 of the Constitution is not absolute and reasonable distinctions in treatment may be made when the special circumstances of a case so require (see, inter alia, among others, Soteriades v Theofylaktou and others (2002) 3 A.A.D 56; Theocharides v the Republic (1998) 3 A.A.D 63). 22. Article 146(1) provides for recourse against administrative decisions to the Supreme Court. Should the recourse succeed, the power of the Supreme Court is confined to declaring an act or decision null and void, or, in the case of an omission, that it ought not to have occurred, in that what had not been done should have been done (Article 146 (4)). Article 146(6) provides for compensation in such proceedings in the following terms: “Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant.” 23. The relevant provisions of these Regulations are as follows. 24. Regulation 12 provided for the annual evaluation of army colonels and brigadiers. 25. Regulation 14(3) provided that, for such officers, their evaluations would fall into one of four categories: promotion; confirmation (i.e. being confirmed in post at the same rank); being deemed to have successfully terminated his or her career; or retirement. Regulation 14(4) set out the criteria for the four possible evaluations. For promotion or confirmation in post, an officer was required to meet certain merits-based criteria, including grade of at least “very good” in the relevant assessments (Regulations 14(4)(a) and (b)). Regulation 14(4)(c) provided that the officer would be deemed to have successfully terminated his or her career if he or she did not meet the requirements for promotion or confirmation in post and his or her further service would hinder the normal advancement of younger officers. Regulation 14(4)(d) provided for retirement when it was not considered appropriate for an officer to continue exercising the duties of his or her rank owing to a lack of substantial qualifications. 26. Regulation 15 provided that senior officers evaluated by the Supreme Evaluations Board as falling within Regulation 14(4)(c) or (d) (i.e. receiving a category (iii) or category (iv) rating) would have to leave the army. 27. Regulation 18(1) provided that for the senior officers evaluated by the Supreme Evaluations Board every year, a certain percentage were to be considered as falling within Regulation 14(4)(c) or 14(4)(d). For colonels, the percentage was to range from 30–40%. Regulation 18(2) provided that, in complying with Regulation 18(1) the Supreme Evaluations Board should accord priority to requests for retirement on the basis of having successfully terminated their career. 28. As stated at paragraphs 5–7 above, the different pension benefits for senior officers leaving the army with category (iii) and category (iv) ratings were set out in Regulations 19(1)(b) and 19(1)(c) respectively. | 0 |
test | 001-141193 | ENG | SVK | ADMISSIBILITY | 2,014 | ALOJZ v. SLOVAKIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Daniel Alojz, is a Slovak national, who was born in 1956 and lives in Banská Bystrica. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 3 and 5 April 2009, respectively, the applicant was arrested and remanded in custody pending trial on drugrelated charges. 5. On 28 October 2009, he submitted a request to the Trenčín District Court (Okresný súd), as the remand court, for his release. The request arrived there by mail on 30 October 2009. 6. As by law the request fell to be determined first by the Public Prosecution Service, the District Court sent it to the District Office of Public Prosecution, which dismissed it and returned the matter to the District Court on 18 November 2009. 7. The District Court scheduled an in-chambers hearing (neverejné zasadnutie) of the applicant’s request for 4 December 2009. However, the hearing was rescheduled for 18 December 2009 at the request of the applicants’ lawyer, who was unable to attend on the former date as she was to attend a conference. 8. Meanwhile, on 9 December 2009, the applicant was indicted to stand trial on the above-mentioned charges. As a consequence, the case was assigned to a new judge, as the trial judge. 9. Following the hearing of 18 December 2009 before the trial judge, on the same day, the District Court dismissed the request. When the decision was pronounced, the applicant immediately lodged an interlocutory appeal (sťažnosť). 10. The applicant’s appeal was dismissed by the Banská Bystrica Regional Court (Krajský súd) on 28 January 2010. The written version of that decision was served on the applicant through the intermediary of the District Court on 18 February 2010. 11. On 19 February 2010 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd), concerning the length of the proceedings on his request for release of 28 October 2009. 12. On 20 April 2010 the Constitutional Court appointed a legalaid lawyer to represent the applicant. The lawyer restated the applicant’s complaint on 21 May 2010. In a standardised and prescribed form (petit), the lawyer directed the complaint against the District Court, alleging that the applicant’s right to a speedy review of the lawfulness of his detention had been breached in the proceedings on the applicants’ request for release of 28 October 2009. He claimed 1,500 euros (EUR) in damages. 13. On 22 June and 25 August 2010 respectively, the Constitutional Court declared the complaint admissible and found a violation of the applicant’s right to a speedy review of the lawfulness of his detention. It awarded him EUR 500 in respect of non-pecuniary damage. 14. The Constitutional Court observed that it had taken the District Court fifty-one days to decide on the applicant’’ rights. 15. The applicant unsuccessfully requested release also on other occasions, both prior to and after the request of 28 October 2009. The trial on the merits ended with the District Court and the Regional Court convicting the applicant and sentencing him to ten years in prison on 23 February and 2 June 2011 respectively. The applicant lodged an appeal on points of law, which was rejected on 29 February 2012. He subsequently sought the re-opening of his trial, but was unsuccessful. | 0 |
test | 001-166685 | ENG | RUS | CHAMBER | 2,016 | CASE OF ANDREY MEDVEDEV v. RUSSIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1980 and lives in Moscow. 6. Prior to its privatisation, the 31.1 square-metre flat at 12-5 Ulitsa Lavochkina, Moscow, had been owned by the City of Moscow. Sh. had resided there as a tenant under the social housing agreement with the city. 7. On 17 May 2003 Sh. died. 8. On 25 July 2003 Sh.’s ex-boyfriend, Un., and an unidentified person impersonating Sh. had their marriage registered in the Tambov Region. Un. then applied to the local housing office, where he presented his marriage certificate and was registered as residing in Sh.’s flat as a tenant. On 31 October 2003 the title to the flat was transferred to Un. under the privatisation scheme. On 25 December 2003 the privatisation transaction and Un.’s title to the flat were registered by the Moscow City Committee for Registration of Real Estate Transactions (the “City Registration Committee”). 9. On an unspecified date the prosecutor’s office opened a criminal investigation into Un.’s activities in respect of the flat and on 5 May 2005 the Golovinskiy District Court of Moscow found him guilty of fraud and sentenced him to a term of imprisonment. The flat was transferred to the Department for Housing of the City of Moscow (the “Housing Department”). 10. On 30 August 2005 the District Court granted claims lodged by the prosecutor on behalf of the city authorities and ordered the annulment of Un.’s marriage certificate and the privatisation agreement, and the revocation of his title to the flat. The parties did not appeal against that judgment and it became final. 11. When Un. was released in 2011, having served a prison sentence for fraud, the city authorities had not yet informed the City Registration Committee of the judgments of 5 May and 30 August 2005. Un. was therefore still officially registered as the flat’s owner and on 28 October 2011 he sold the flat to S. On 8 November 2011 the City Registration Committee registered the sale agreement and S.’s title to the flat. 12. On 22 December 2011 S. sold the flat to the applicant. The sale agreement was registered by the City Registration Committee on 29 December 2011. The applicant moved in and resided in the flat with his girlfriend. 13. On an unspecified date the Housing Department brought a civil claim against the applicant seeking, inter alia, (1) the revocation of the applicant’s title to the flat and his eviction; and (2) restitution of the flat to the City of Moscow. 14. On 30 October 2012 the District Court examined the case. It conceded that the applicant was a bona fide purchaser of the flat. Nevertheless, relying on Article 302 of the Russian Civil Code, the court granted the Housing Department’s claims, pointing out that it remained open to the applicant to sue S. in order to have his rights protected. The applicant appealed. 15. On 12 March 2013 the Moscow City Court upheld the judgment of 30 October 2012 on appeal. 16. On 3 June 2013 the City Court refused to grant the applicant leave to lodge a cassation appeal against the judgments of 30 October and 12 March 2013. 17. On 12 February 2014 the Supreme Court of the Russian Federation, in a single-judge formation, dismissed a cassation appeal lodged by the applicant against the judgments of 30 October and 12 March 2013. 18. On 26 July 2013 the district bailiff’s service instituted enforcement proceedings in respect of the judgment of 30 October 2012. According to the applicant, he was evicted on 18 November 2013. 19. On 22 January 2014 the Sergiyev Posad Town Court of the Moscow Region granted a claim for damages against S. lodged by the applicant and awarded him 4,330,000 Russian roubles (RUB). On 28 February 2014 the judgment became final. 20. On an unspecified date the bailiff instituted enforcement proceedings in respect of the judgment of 22 January 2014. On 17 June 2014 the proceedings were discontinued as it had been impossible to establish S.’s whereabouts. 21. According to the Government, on 14 August 2014 the bailiff’s superior quashed the decision of 17 June 2014 and the enforcement proceedings are still pending. | 1 |
test | 001-160448 | ENG | MLT | ADMISSIBILITY | 2,016 | FENECH AND AGIUS v. MALTA | 4 | Inadmissible | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | The applicant in the first case, Mr Tyrone Fenech, is a Maltese national, who was born in 1985 and lives in Birgu. The applicant in the second case, Ms Amanda Agius, is a Maltese national, who was born in 1985 and lives in Fgura. The applicants were represented before the Court by Dr D. Camilleri, a lawyer practising in Valletta. The Government were represented by their Agent, Dr P. Grech, Attorney General. The facts of the case may be summarised as follows. On 10 February 2004 the first applicant (who was nineteen years old at the time) was arrested and interrogated on suspicion of trafficking ecstasy (a drug which is regulated by the Medical and Kindred Professions Ordinance, Chapter 31 of the Laws of Malta). During the interrogation, at which no lawyer was present, he gave a statement admitting to selling about two hundred ecstasy pills and to using ecstasy and cannabis. On 12 February 2004 he gave another statement on oath before a magistrate, whereby he confirmed the contents of his previous statement and implicated some other individuals. The latter statement was given at the police headquarters shortly after he had been released, but it is unclear whether he was re-arrested and taken to the headquarters for further investigation, or whether he was asked to attend the police headquarters for further questioning by the inquiring magistrate. On 10 February 2004 the second applicant (who was eighteen years old at the time) was arrested and interrogated on suspicion of trafficking and possession of ecstasy. During the interrogation, at which no lawyer was present, she gave a statement admitting to her involvement in the crime. She declared that she had been using ecstasy for nearly a year, that she smoked cannabis, and that she had helped Mr Fenech to sell about ten ecstasy pills for 5 Maltese liri (MTL) each. On 12 February 2004 she gave another statement on oath before a magistrate, whereby she confirmed the contents of her previous statement. From the documents provided it is not possible to determine the time of this interrogation or whether the applicant was under arrest. Subsequently the applicants were arraigned in the Court of Magistrates (as a court of criminal judicature) and their above-mentioned statements were exhibited as evidence against them. On 1 December 2009 during the criminal proceedings, the applicants requested the court to make a referral to the constitutional jurisdictions regarding complaints they had concerning the lack of legal assistance afforded to them during investigation and interrogation. By a decision of 11 June 2009, the court granted the request and referred the case. The applicants alleged a breach of their right to a fair trial (Article 6 of the Convention) on account of the lack of legal assistance. They requested that their statements - both those made to the police and those made to the magistrate - be excluded from the prosecution’s evidence. By a judgment of 23 January 2012, the Civil Court (First Hall) in its constitutional competence found a violation of the first applicant’s right to a fair trial, in so far as he had not had access to a lawyer before and during the police interrogation which led to his statement of 10 February 2004. The same applied in respect of his statement under oath before the magistrate, if made while under arrest. It considered that a person had just as much a right to legal assistance before making a statement to a judicial authority as he or she did before making a statement to the police. It ordered that any statements made by the applicant while under arrest should not be used in the criminal proceedings against him. It was for the Court of Magistrates (as a court of criminal judicature), before which the case was pending, to make an order as to what was to be done with those statements in accordance with this decision. Since it was not clear whether the applicant was under arrest on 12 February 2004, it was therefore for that court to decide that matter. On appeal, by a judgment of 22 February 2013, the Constitutional Court reversed in part the first-instance judgment. Accepting that the case was not premature, and in the light of the criminal courts’ referral, it found that the first applicant’s right to a fair trial had been breached only in relation to the statement given to the police, but not the statement given before the magistrate, which could thus be admitted as evidence in the criminal proceedings against him. It considered that the right to legal assistance was not a formality which the accused could use as a further means of defence if not respected. The right served to ensure that statements are made freely, with the knowledge of the right to remain silent, without threats and promises, violence or abuse. A breach of the right to legal assistance during interrogation would occur when a statement was obtained by abuse and not solely because there was no lawyer present. There existed no right for accused persons to be found not guilty. The role of the lawyer was to ensure that the statement was taken legitimately and not to give advice as to how to hide the truth or make a limited or selective declaration. The law aimed to establish the truth and to ensure that no false statements are obtained by abuse. Fundamental rights were meant to promote the dignity of the individual, a matter which surely would not be protected by giving rights which distort or hide the truth at the expense of the proper administration of justice. The right to legal assistance was intended to protect persons in particular situations of vulnerability, weakness or fear who as a result of which made statements which led to a finding of guilt despite their innocence. Legal assistance in such cases prevented any such abuse and counteracted the vulnerability of the individual concerned. In the present case the applicant was only nineteen years of age at the time and may well have been vulnerable; however, someone other than a lawyer could have provided for such a guarantee, such as a magistrate (independent from the police), before whom the applicant made his second statement in accordance with domestic law. For these reasons the Constitutional Court upheld the Article 6 violation only in respect of the statement the applicant made to the police, which could not therefore be used in the criminal proceedings against him, but not in respect of the statement made before the inquiring magistrate, which could be used in the proceedings. By a judgment of 23 January 2012, the Civil Court (First Hall) in its constitutional competence found a violation of the second applicant’s right to a fair trial, in so far as she had not had access to a lawyer before and during the interrogation which led to her incriminating statement being used by the prosecution as a crucial piece of evidence. The same applied in respect of a further statement she made under oath before a magistrate, if made while under arrest (that is, while in police custody), since Strasbourg case-law did not make such a distinction. It ordered that any statements made by the applicant while under arrest should not be used in the criminal proceedings against her. It was for the Court of Magistrates (as a court of criminal judicature), before which the case was pending, to make an order as to what was to be done with those statements in accordance with this decision. In particular, it was not clear whether the applicant was under arrest or had already been released on 12 February 2004; it was therefore for that court to decide that matter. On appeal, by a judgment of 22 February 2013, the Constitutional Court reversed in part the first-instance judgment. Accepting that the case was not premature, also in the light of the criminal courts’ referral, it found that the second applicant’s right to a fair trial had been breached only in relation to the statement given to the police, but not in respect of the statement given before a magistrate, which could thus be admitted as evidence in the criminal proceedings against her. It reiterated the considerations it had made in the above mentioned judgment in respect of the first applicant, Mr Fenech. The criminal proceedings against the applicants are still pending before the Court of Magistrates (as a court of criminal judicature), which has suspended the case pending the outcome of the proceedings before this Court. The relevant domestic law concerning the case is to be found in Dimech v. Malta (no. 34373/13, §§ 24-25, 2 April 2015). | 0 |
test | 001-145005 | ENG | LVA | CHAMBER | 2,014 | CASE OF A.K. v. LATVIA | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 6. The applicant was born in 1961 and lives in Rīga Parish. 7. On 18 October 2001 the applicant, who was forty years old at the time, discovered that she was in the fifth or sixth week of pregnancy during a gynaecological examination at A. Hospital. 8. On Tuesday 15 January 2002, in her eighteenth week of pregnancy according to her medical notes (medical record no. 43), the applicant had an appointment with her gynaecologist, Dr L., at A. Hospital. The medical record notes that, during the appointment Dr L. issued a referral for the applicant to undergo an alpha-fetoprotein (“AFP”) test on the following Monday, 21 January 2002. The test checks the level of AFP in a pregnant woman’s blood as an indicator of potential foetal abnormalities. The applicant disputes the authenticity of medical record no. 43 and denies that any referral was made. 9. The applicant did not attend the appointment for the AFP test on 21 January 2002. 10. From February to June 2002 the applicant regularly attended appointments with Dr L. and her general practitioner. 11. On 5 June 2002 the applicant gave birth to a daughter with Down’s syndrome. 12. The applicant was discharged from hospital on 18 June 2002. She claims that a few days later she went to A. Hospital to obtain a copy of her medical records. She was given her medical records and made a copy at the hospital, before returning them. According to the applicant, her copy of medical record no. 43 contained no reference to the 15 January 2002 referral for an AFP test. 13. On 1 July 2002 the applicant complained to the Inspectorate for Quality Control of Medical Treatment (“the MADEKKI”) about the quality of the antenatal medical care provided by Dr L. In particular, she complained that Dr L. had failed to refer her for the AFP test, which would have indicated the risk of foetal abnormality. 14. On 2 July 2002 the MADEKKI requested A. Hospital to forward the applicant’s medical records. 15. On 15 July 2002 the MADEKKI interviewed Dr L. She explained that although the applicant had been referred for the AFP test on 15 January 2002, she had failed to attend because she had been hospitalised. Following her release from hospital there had been no point in carrying out an AFP test since she was by then in her twenty-first week of pregnancy. Dr L. referred to the fact that the applicant had been referred for a genetic consultation in her twenty-fifth week of pregnancy. Dr L. also explained that after the baby had been delivered, she had discovered that the applicant’s eldest son had a mental illness, a fact which the applicant had concealed during her pregnancy. The applicant had further concealed the excessive alcohol consumption of her partner and father of the child. 16. On 25 July 2002, having examined the applicant’s medical records and interviewed relevant doctors, the MADEKKI issued its opinion. It found that although the applicant had been referred for the AFP test, Dr L. had failed to ensure that the test was carried out. This failure was, it said, contrary to Ordinance No. 324 concerning antenatal and prenatal care (see paragraph 48 below). Dr L. was given an administrative fine of twenty-five Latvian lati. 17. On 29 July 2002 the MADEKKI informed the applicant of its finding that she had received antenatal medical care in accordance with national law, save that Dr L. had failed to ensure that she had undergone the AFP test. It noted that AFP screening results could neither confirm nor exclude a congenital foetus abnormality but would rather serve as an indicator for further examinations. It also explained that the applicant bore some responsibility herself as she had failed to inform Dr L. of her eldest son’s illness. Had Dr L. been aware of the illness, she would have arranged for a medical genetic consultation in the first months of the applicant’s pregnancy, thus ensuring a timely diagnosis. Finally, the MADEKKI informed the applicant of her right to apply to the law enforcement authorities within one month of its decision if she was not satisfied with it. 18. On 20 February 2004 the applicant officially requested access to her medical records. An approved copy was issued to her on 23 February 2004. She claims that she subsequently formed the view that the 15 January 2002 entry in medical record no. 43 concerning her referral for an AFP test had been added at a later date. 19. On 20 October 2004 the applicant asked the District Prosecutor’s Office to investigate whether the discrepancies in the two copies of medical record no. 43 amounted to falsification of documents. She also alleged negligence on the part of Dr L. In support of her allegation, she submitted the unapproved copy of her medical records which she claims to have made in June 2002 (see paragraph 12 above). 20. On 16 November 2004 the police interviewed Dr L. She explained that in the seventeenth week of pregnancy she had referred the applicant for the AFP test but the test had not been carried out, for unknown reasons, because the applicant had failed to attend the appointment. Dr L. referred to the applicant’s right to refuse the test. She added that the applicant had concealed the genetic illness of her eldest son. Had his situation been disclosed, Dr L. said that she would have arranged an immediate consultation with diagnosis by the twelfth week of pregnancy. As regards medical record no. 43, Dr L. explained that the entries in the record were made over an extended period of time as examination results were received and further appointments and treatment instructed. She also explained that medical record no. 43 had disappeared in January 2002 and was only recovered at a later date, when it was placed in the reception at A. Hospital outside its working hours. She told the police that it was not in the interests of the medical staff to lose or conceal the record, since it meant that all the medical examinations would have to be carried out again. 21. On 22 November 2004 the police refused to institute criminal proceedings for falsification of records or negligence. The investigators were satisfied that the applicant had been referred for the test but that she had not turned up for the appointment. The investigators also found that there were no technical means available to establish precisely the time when the contested data concerning the referral had been entered in the applicant’s medical file. 22. On 9 December 2004 the applicant appealed the decision. She sought the institution of criminal proceedings for falsification of documents by a group of persons. On 28 December 2004 the District Prosecutor’s Office quashed the decision of 22 November 2004 and ordered further investigation into the disappearance of the applicant’s medical record and the making of the contested entry. 23. In February 2005 further police investigations were carried out. The State Forensic Expertise Bureau confirmed that it did not have the ability to establish, by forensic methods, the date on which the contested entry was made. Dr L. was questioned again and confirmed the disappearance of the medical record in 2002. The applicant’s general practitioner and nurse were interviewed. The nurse told the police that in 2002 the applicant had frequently visited her general practitioner and brought medical record no. 43 with her, in order to record future appointments. The general practitioner had updated the record during her visits and returned it to her. Staff of A. Hospital were also interviewed and confirmed the temporary disappearance of the applicant’s medical record. 24. On 4 April 2005 the police refused to institute criminal proceedings for falsification of documents by a group of persons. 25. On 25 May 2004 the applicant appealed the decision. On 18 July 2005 the District Prosecutor’s Office quashed the decision of 4 April 2005 and again remitted the complaint for further investigation. It noted that the applicant had submitted a non-approved copy of medical record no. 43 and referred to the need to ascertain whether there were witnesses who could testify that the contested entry was missing in June 2002 when the copy was allegedly made. 26. On 30 September 2005, after further interviews with Dr L. and the applicant’s general practitioner, the police again refused to institute criminal proceedings. They concluded that it was not possible to determine whether the information concerning the disputed referral for the AFP test had been missing from the applicant’s medical records in June 2002. 27. The refusal to institute proceedings was upheld by the District Prosecutor’s Office on 19 December 2005. However, on 17 May 2006, following an appeal by the applicant to the Regional Prosecutor’s Office, the latter revoked the decision of 30 September 2005 and instituted criminal proceedings. 28. On 8 June 2006 the police requested forensic tests on medical record no. 43. An expert report dated 7 July 2006 concluded that the medical records were not falsified but that they had been supplemented with new information over an extended period of time. 29. On 12 September 2006 the applicant was informed that the criminal proceedings had been terminated owing to the expiry of the statutory limitation period. 30. Meanwhile, on 16 August 2005 the applicant lodged a claim for damages against A. Hospital. She contended that Dr L. had been negligent as she had not identified the applicant as belonging to a high-risk group and had not referred her for the AFP test. The applicant also alleged that Dr L. had subsequently modified the medical records in order to conceal the failure. She further claimed that Dr L. had not put in place a medical care plan in respect of her pregnancy and was therefore not in a position to provide the applicant with the necessary information on her treatment, in violation of sections 20 and 41 of the Medical Treatment Law (see paragraphs 44 and 47 below). As a result of these failings, the applicant had been prevented from availing herself of her right to agree to or decline the AFP test. She claimed that had she known that the child had a congenital disease, she would have chosen to undergo an abortion on medical grounds. She claimed compensation for pecuniary and non-pecuniary damage, including compensation for lost wages and a lump-sum maintenance award for her daughter. 31. A hearing took place on 20 December 2005. The applicant’s legal representative asked the court to hear the applicant as a witness in order for her to give evidence on the facts of the case. The court rejected the application without providing reasons. However, it granted the defendant’s application for Dr L. to appear as a witness and give oral evidence. 32. On 2 January 2006 the Riga Regional Court (Rīgas Apgabaltiesa) dismissed the applicant’s civil claim. The court held that, as it could not be proved that Dr L. had falsified the applicant’s medical records, the applicant had failed to turn up for the AFP test. It also noted that she had failed to inform Dr L. of her eldest child’s condition. It found that the applicant was not in a high-risk category merely on account of her age, and that the applicant was to blame for the fact that the AFP test was not carried out. It concluded that there was no causal link between the actions of Dr L. and the birth of the applicant’s child. Even though Dr L. had been given an administrative fine for her failure to ensure that the applicant had the AFP test, this was insufficient to prove that Dr L. had been at fault. 33. The applicant appealed. She argued that Dr. L had been obliged to take all medical steps to establish whether her unborn child was healthy. Since she had not done everything required of her in order to discover the child’s genetic abnormality in a timely manner, it had not been possible for the applicant to prevent the birth of a child with a congenital disorder. The applicant argued that the court had erred in finding that she did not belong to a risk group due to her age, since Ordinance No. 324 indicated that pregnant women above the age of 35 should have the AFP test. She also contended that the court had erred in concluding that she had been referred for the test. She maintained that the court’s conclusion that she herself was to blame for the fact the test was not carried out was unfounded since the case file contained no evidence in that regard. Furthermore, she claimed that the court had given no reasons for relying on the medical records used by the MADEKKI instead of the earlier copy of the medical record that she had submitted. In any event, the applicant argued that even if she had been referred for the test, the referral was already too late as on the day allegedly fixed for the test she was already in her nineteenth or twentieth week of pregnancy. She further contended that had she refused to take the test, the doctor would have made a corresponding note in the medical record. As regards her eldest son, the applicant pointed out that Dr L. had never asked her about the health of her other children and explained that her son had developed schizophrenia at the age of twelve. She insisted that there was in her view a causal link between the Dr L.’s failures and the birth of her child and that damages ought to be paid. 34. On 4 April 2007 a hearing took place on 4 April 2007 before the Civil Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesu palāta). The applicant’s legal representatives were unable to attend but the applicant asked the court to proceed in their absence. The applicant made submissions on her own behalf, and answered questions posed by the court. The court heard evidence from a representative of A. Hospital, who explained the system of record-keeping at A. Hospital and the loss of the applicant’s medical record, and from Dr L. Dr L. testified that only an amniocentesis allowed an effective diagnosis of Down’s syndrome. Although the risk of congenital abnormalities increased with age, the fact that the applicant was forty years old was not as such an indicator that she ought to have an amniocentesis, which carried with it the risk of miscarriage. There were no objective medical indications to justify a referral for that procedure in the applicant’s case. Dr L. referred to the applicant’s failure to disclose the condition of her eldest son and to disclose her husband’s alcoholism. 35. On 17 April 2007 the Civil Chamber rejected the applicant’s appeal. It agreed with the first-instance court’s conclusion that applicant’s allegations concerning the alteration of her medical record had not been proven, noting that the copy of the medical record submitted by her was not certified. The court also noted the MADEKKI’s conclusion concerning the applicant’s failure to inform Dr L. of her eldest son’s illness, observing that the “mother’s passport”, which the applicant had at all times, drew attention to the importance of informing the doctor of any diseases suffered by existing children. It referred to Dr L.’s evidence that, had she known of the illness, she would have ordered additional tests and examinations. The court also pointed out that the Medical Treatment Law set out a duty on patients to comply with doctors’ instructions; the applicant was accordingly under a duty to undergo the AFP test which she had been referred. The fact that there was no record in writing of her refusal to take the test was not proof of the fact that she had never been referred for it. 36. Finally, the Court held that Dr L. could not be held responsible for the child’s genetic condition since no causal link could be established between the actions of Dr L. and the child’s condition. It also noted that: “The result of the AFP test ... could neither confirm nor exclude genetic abnormality of a foetus, but would serve as an indication for further examination. Therefore the [applicant’s] allegations that the results of the AFP test would have provided her [with] an opportunity to choose whether to continue with or terminate the pregnancy could not in itself serve as a basis to uphold the claim.” 37. The only shortcoming in the applicant’s medical care had been the failure to ensure that the AFP test was actually carried out. The court noted that the MADEKKI had already fined Dr L. for this omission. 38. As regards the alleged falsification of medical record no. 43, it found that, since the applicant’s medical record was missing at the time of her January 2002 appointment with Dr L., the latter had made her notes on a separate sheet of paper which had been added to the medical record once it had been recovered. The court noted the finding of the MADEKKI that the applicant had been referred for the AFP test and further recorded that the applicant did not dispute that she had attended an appointment with Dr L. on 15 January 2002. It referred to the decision of the police of 30 September 2005 not to institute criminal proceedings because there was no evidence that the medical record had been falsified. It therefore found that the applicant’s account of the reason for the differences in the two copies of her medical records had not been proven to be true. 39. On 7 May 2007 the applicant obtained a copy of the expert report of 7 July 2006 (see paragraph 28 above). 40. The applicant subsequently filed an appeal on points of law. She argued that the Civil Chamber had not assessed correctly whether the failure of Dr L. to ensure that the AFP test was carried out had infringed the applicant’s right to find out about any foetal abnormality. Even though the court had concluded that she had been referred for the AFP test, the judgment did not address whether the referral complied with section 41 of the Medical Treatment Law, i.e. whether she had received all the necessary information about the test (see paragraph 47 below). Further, the applicant submitted that the court should have applied section 23 of the Medical Treatment Law and insisted that any refusal of the treatment should have been in writing (see paragraph 46 below). She also submitted that the court had wrongly interpreted section 25 of the Medical Treatment Law (see paragraph 46 below) by stating that she had been obliged to carry out the AFP, as it had not taken into account the need for free and informed consent before any medical intervention. Finally, she argued that in assessing whether Dr L.’s actions had been wrongful, such as to give rise to damages, the court should have assessed whether the doctor had complied with the applicable rules, including the Ordinance No. 324. The court’s conclusions as to the lack of a causal link were not compatible with the Ordinance, since had Dr L. complied with her legal obligations, the applicant could have found out that the foetus had a genetic disease and could have availed herself of her right to have an abortion on medical grounds, thereby preventing the birth of the child. Accordingly, she maintained, the necessary causal link existed between Dr L.’s wrongful actions and the birth of the child with Down’s syndrome. 41. The applicant also contended that there had been a number of procedural failings before the appellate court. She alleged in particular that it had not assessed her claim for maintenance; and that it had breached the rules in relation to assessment of evidence as it had uncritically accepted the testimony given by the doctor, had attached greater weight to the copy of the medical records submitted by the hospital than to the copy submitted by her, and had relied on the conclusions of the MADEKKI without itself verifying the facts. 42. On 26 September 2007 the Senate of the Supreme Court dismissed the applicant’s appeal. The full text of the judgment was made available on 22 October 2007. The Senate concluded that, contrary to the applicant’s allegations, the appellate court had come to its conclusions about the referral for the test and the applicant’s failure to attend the appointment with due regard for a patient’s right to receive information. Section 23 of the Medical Treatment Law was not applicable to this case as the applicant had simply not shown up for the test. The Senate further noted that applicant’s arguments were based on the premise that she had not been referred to the test whereas the appellate court had found that a referral had been made. Her complaints of procedural flaws were rejected as unfounded 43. Meanwhile, on 1 August 2007 the applicant asked the Senate of the Supreme Court to reopen the civil proceedings on the basis of newly discovered evidence, namely the expert report of 7 July 2006 which she had recently seen for the first time (see paragraphs 28 and 39 above). On 5 December 2007 the Senate dismissed the request. | 1 |
test | 001-140959 | ENG | NLD | ADMISSIBILITY | 2,014 | Y.A. v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Y.A., is an Afghan national, who was born in 1953 and lives in the Netherlands in Dordrecht. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3). He was represented before the Court by Mr J.M. Walls, a lawyer practising in Prinsenbeek. 2. The Dutch Government (“the Government”) were represented by their their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, both of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 28 December 1997, the applicant applied for asylum in the Netherlands. He stated inter alia that he had been a professional military officer and that he had worked for the KhAD/WAD (Khadimat-e Atal-at-e Dowlati/Wezarat-e Amniyat-e Dowlati). He further stated that he had been a member of the communist party (People’s Democratic Party of Afghanistan; PDPA). He had fled Afghanistan on 10 December 1997 as the Taliban had been searching for him. He was granted asylum on 27 July 1999. On an unspecified date in 2001, his spouse was given permission to join him in the Netherlands. This permission was equally given to their four children who were born in 1989, 1990, 1994 and 1996, respectively. His wife and the two youngest children have since obtained Dutch nationality; the two oldest children hold residence permits for asylum purposes. 5. On 24 February 2006, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) decided to withdraw the applicant’s asylum based residence permit with retroactive effect, Article 1F of the 1951 Geneva Convention relating to the Status of Refugees being held against the applicant. The Minister based this decision on the applicant’s statements about his career from 1983 to 1992 as an officer in the KhAD/WAD in which he had last held the rank of lieutenant colonel, and on a general official report (algemeen ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) on “Security Services in Communist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) On the basis of this report, the Netherlands immigration authorities adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD/WAD. 6. In a separate decision taken on 3 April 2006, the Minister further imposed an exclusion order (ongewenstverklaring) on the applicant. The applicant’s objection (bezwaar) against this decision was rejected by the Minister on 27 August 2007. 7. As under Dutch law it is not possible to have lawful residence in the Netherlands as long as an exclusion order is in place, the applicant’s appeal against the withdrawal of his asylum based residence permit was declared inadmissible on 25 November 2008 by the Regional Court of The Hague sitting in Zutphen. 8. In a separate decision taken on the same day, the Regional Court of The Hague sitting in Zutphen rejected the applicant’s appeal against the decision to impose an exclusion order. On 21 December 2008, the applicant filed a further appeal with the Administrative Jurisdiction Division Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). 9. On 25 March 2009, at the request of the applicant, the President of the Chamber decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Afghanistan (Rule 39 of the Rules of Court) until further notice. 10. On 20 May 2008 the Chamber prolonged the measure under Rule 39 of the Rules of Court until further notice. 11. On 26 March 2009, the applicant requested the Deputy Minister of Justice (Staatssecretaris van Justitie; “the Deputy Minister”; the successor to the Minister for Immigration and Integration) to lift (temporarily) the exclusion order imposed on him (“verzoek om het (tijdelijk) opheffen van de ongewenstverklaring”). 12. On 16 September 2009, the Administrative Jurisdiction Division rejected the applicant’s further appeal concerning the decision to impose an exclusion order on him. 13. On 24 December 2009, the Deputy Minister withdrew the decision of 27 August 2007, in which the applicant’s objection to the decision to impose an exclusion order on him had been rejected. 14. On 27 April 2010, the Government informed the Court that, in the context of the proceedings concerning the applicant’s exclusion order and his request have this order lifted, the Deputy Minister had concluded on 7 April 2010 that the applicant would, if returned to Afghanistan in the current circumstances, run a risk of treatment as referred to in Article 3 of the Convention. The Government stated that, therefore, the applicant would not be expelled to Afghanistan as long as Article 3 would constitute grounds for not doing so. The Government requested the Court to consider striking the application out of the list of pending cases. 15. On 14 May 2010, the applicant informed the Court that he did not wish to withdraw the application as he had not only alleged a violation of his rights under Article 3 but also under Article 8 of the Convention. 16. On 14 September 2010, the Court decided against striking the case out. It decided to adjourn its proceedings pending the outcome of the still pending domestic proceedings on the imposition of an exclusion order on the applicant. It further decided to prolong the Rule 39 indication for the duration of the proceedings before the Court. 17. On 11 August 2011, the Regional Court of The Hague sitting in Rotterdam determined the applicant’s appeal against the Minister’s decision of 7 April 2010 concerning the imposition of the exclusion order. It remitted the case to the Minister. In a separate judgment given on the same day, the Regional Court rejected the applicant’s appeal against the Minister’s refusal to lift the exclusion order. 18. In a fresh decision taken on 30 November 2011 concerning the imposition of the exclusion order, the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; the successor to the Deputy Minister of Justice) again accepted that the applicant, if returned to Afghanistan, would run a risk of treatment proscribed by Article 3 of the Convention but rejected the applicant’s other arguments based on Articles 3 and 8 of the Convention. The applicant filed an appeal with the Regional Court of The Hague, which is presumably still pending. 19. On 4 March 2012, the applicant informed the Court of the state of proceedings at the domestic level, namely that the proceedings concerning the imposition of the exclusion order were pending before the Regional Court of The Hague sitting in Dordrecht and that the proceedings on his request to lift the exclusion order were pending before the Administrative Jurisdiction Division. He further informed the Court of the consequences of the implementation as from 1 January 2012 of Directive 2008/115/EC of 16 December 2008 (on common standards and procedures in Member States for returning illegally staying third-country nationals) for persons who – like the applicant – are not a national of one of the European Union Member States and on whom an exclusion order has been imposed. According the applicant, the Government intended to lift exclusion orders imposed in the past under their simultaneously replacement by an entry ban within the meaning of Article 11 of the Directive. 20. The Court requested the Government on 12 March 2012 to comment on the information supplied by the applicant, which they did on 7 May 2012. The Government informed the Court, inter alia, that the Minister was seeing no reason to lift the applicant’s exclusion order and impose an entry ban on him 21. The relevant domestic law and practice as regards asylum proceedings, exclusion orders and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-32, 25 September 2012). | 0 |
test | 001-172135 | ENG | DEU | CHAMBER | 2,017 | CASE OF WOLTER AND SARFERT v. GERMANY | 4 | Violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev | 5. The first applicant was born in 1943 and lives in Cologne and the second applicant was born in 1940 and lives in Stuttgart. 6. The first applicant is the natural son of a Mr H., who recognised paternity several months after his birth. The first applicant had a personal relationship with his father and worked in his business. The father died on 23 October 2007. 7. On 6 November 2007 the first applicant applied for a certificate of inheritance attesting that he was entitled to 100% of the estate. 8. On 7 November 2007 the Cologne District Court granted the certificate, upon which the first applicant took the estate into his possession and disposed of it. However, on 10 December 2007 the Cologne District Court withdrew the certificate, stating that the first applicant, being a child born outside marriage, was not Mr H.’s statutory heir. The first applicant appealed against that decision, but on 25 August 2008 the Cologne Regional Court upheld it. 9. On 23 July 2009 the first applicant again applied for a certificate of inheritance stating that he was entitled to 100% of Mr H.’s estate, referring in particular to the European Court of Human Rights judgment in the case of Brauer v. Germany (no. 3545/04, 28 May 2009). 10. In a decision of 3 November 2009 the Cologne District Court dismissed the first applicant’s application, holding that the judgment in Brauer (cited above) was not applicable to his case. Instead, it granted certificates of partial inheritance to the first applicant’s half-sister and to the grandchildren of the deceased’s wife. 11. On 16 November 2009 the first applicant appealed to the Cologne Regional Court, arguing that under Article 6 § 5 of the Basic Law, which states that children born outside marriage must be provided by legislation with the same opportunities as are enjoyed by children born within marriage, there were no reasons he should be treated differently from children born within marriage. He stated that if he was refused the certificate the German State would be liable for compensation claims. 12. In a decision of 16 February 2010 the Cologne Regional Court upheld the District Court’s decision, holding that the first applicant was not a statutory heir. The Regional Court referred to a decision by the Federal Constitutional Court of 8 December 1976, in which section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. The principles developed in Brauer (cited above) were not applicable to the present case. There was a need to protect the legitimate expectations of the deceased and other heirs. The Cologne Regional Court also considered that an interpretation of the relevant provision of the Children Born outside Marriage (Legal Status) Act in conformity with the case-law of the European Court of Human Rights was not possible as the domestic law was clear and therefore not open to any interpretation. 13. On 18 March 2010 the first applicant appealed to the Cologne Court of Appeal, arguing that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would discriminate against him and breach his inheritance rights and therefore violate his right to equality before the law under Article 3 and his rights under Article 6 § 5 of the Basic Law. The first applicant stressed that the Regional Court’s reasoning disregarded the Court’s judgment in Brauer (cited above) and was therefore unlawful. The first applicant further noted that he had maintained a close relationship with his father until the latter’s death and had even worked in his business. The first applicant’s father had assumed that the first applicant would be his sole heir. 14. In a decision of 11 October 2010 the Cologne Court of Appeal dismissed the first applicant’s appeal on the grounds that it was bound by the decisions of the Federal Constitutional Court and that it had found that the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was in conformity with the Basic Law. The European Court of Human Rights judgment in Brauer (cited above) did not require a change of position because German courts were not bound by the decisions of that court. The Court of Appeal added that interpreting domestic law in the light of the Convention was restricted when domestic law was clear and therefore not open to interpretation. That was the case with the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. The Cologne Court of Appeal further noted that the first applicant’s appeal had been an appeal on points of law only. The first applicant’s argument, therefore, that he had had a close relationship with his father, which was a statement of fact, could not be taken into account when deciding on the appeal because it had been submitted for the first time before the Court of Appeal. 15. The second applicant is the natural son of a Mr B. and was born in the former GDR, where he lived until his flight from the country in 1957. In 1949 Mr B. was ordered by the Hamburg-Blankensee District Court to pay maintenance for the applicant. He met his father on four occasions, but was asked by the latter not to get involved in the lives of his wife and daughter. The father died on 26 June 2006, naming his daughter as sole heir in his will. 16. In 2009, after the European Court of Human Rights had issued its judgment in Brauer (cited above), the second applicant brought an action for a compulsory portion of the deceased’s estate (Plichtteilsklage) with the Hamburg Regional Court. 17. On 21 January 2010 the Hamburg Regional Court dismissed the second applicant’s claim, holding that under the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act the second applicant was not a statutory heir. That provision was in conformity with the Basic Law. The Regional Court referred to the Federal Constitutional Court’s judgment of 8 December 1976. It noted that Brauer (cited above) was not applicable to the case at hand because there had been no regular contact between the second applicant and his father, the deceased had a natural daughter and the second applicant had not lived in the former GDR for most of his life. 18. The second applicant appealed to the Hamburg Court of Appeal, arguing that the European Court of Human Rights judgment in Brauer (cited above) obliged the German courts to grant children born outside marriage the same inheritance rights as those born within marriage. The special circumstances of Brauer (cited above), which were referred to by the Regional Court, were not conditions that had to be present in order to apply the principles laid down in that judgment. 19. In a decision of 15 June 2010 the Hamburg Court of Appeal upheld the Regional Court’s decision, endorsing its reasoning. It referred to the Federal Constitutional Court’s case-law, arguing that there was a need to protect the legitimate expectations of the deceased. 20. The second applicant appealed to the Federal Court of Justice, which confirmed the Hamburg Court of Appeal’s reasoning in a decision on 26 October 2011. The Federal Court of Justice argued that neither the old nor the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act discriminated against children born outside marriage before 1 July 1949 because the difference in treatment was based on legitimate grounds. Regarding the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, expanding the retroactive scope of the reform beyond the one adopted was not necessary as the basic principles of legal certainty and legitimate expectations had to be respected. Those principles were also necessarily inherent in the Convention, meaning that even though the inheritance rights of children born outside marriage fell within the scope of the protection of Article 8 of the Convention, a State was dispensed from reopening legal acts or reviewing situations that pre-dated the delivery of a court judgment. The Federal Court of Justice also noted that the facts at issue did not fall within the ambit of Article 8 or that of Article 14 of the Convention. 21. On 18 November 2010 the first applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed discrimination and therefore a violation of Article 3 and Article 6 § 5 of the Basic Law by applying the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act because there were no reasons why children born outside marriage should be treated differently from those born within marriage. The case-law of the Federal Constitutional Court, which considered that provision to be valid, disregarded the European Court of Human Rights judgment in Brauer (cited above) and was therefore unlawful. That led to a violation of Article 8 and Article 14 of the Convention. 22. The second applicant also lodged a constitutional complaint with the Federal Constitutional Court. Relying on the judgment in Brauer (cited above), he complained that the application of the amended version of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act discriminated against him compared to children born within marriage. As a consequence he had been denied his inheritance rights. 23. In a decision of 18 March 2013 the Federal Constitutional Court dismissed both applicants’ constitutional complaints (file nos. 1 BvR 2436/11 and 3155/11). 24. The Federal Constitutional Court noted that the judgment in Brauer (cited above) had led the German legislature to pass the Second Inheritance Rights Equalisation Act of 12 April 2011 (Zweites Gesetz zur erbrechtlichen Gleichstellung nichtehelicher Kinder). The first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 had been changed retroactively, with the effect that the difference between children born outside marriage before and after 1 July 1949 had been set aside in cases of successions after 28 May 2009 (see paragraph 37 below). 25. Even though the first applicant’s claim of a close relationship with his father had only been made for the first time in his appeal to the Cologne Court of Appeal, the Federal Constitutional Court noted that that statement of fact was not relevant for the issue before it. It declared both applicants’ constitutional complaints admissible. 26. The Federal Constitutional Court confirmed the conformity of the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act with the Basic Law. It reiterated that the cases at hand only needed to be examined under Article 6 § 5 of the Basic Law and not under Article 14, which contained the right to protection of property. The difference between children born outside marriage before and after 1 July 1949 had been abolished by the Second Inheritance Rights Equalisation Act of 12 April 2011. The general discrimination against children born before and after that date therefore no longer existed. The time-limit in the new provision was not linked to personal characteristics but to a coincidental external event (zufälliges, von außen kommendes Ereignis). Any discriminatory treatment was therefore of a lesser degree. 27. Making the reform retroactive was not necessary as the conformity of the relevant provision of the Children Born outside Marriage (Legal Status) Act had been repeatedly confirmed by the Federal Constitutional Court. The Brauer case (cited above) had not changed that position because the European Court of Human Rights had clarified in Marckx v. Belgium (13 June 1979, Series A no. 31) that the principle of legal certainty, which was necessarily inherent in the law of the Convention as in European Law, dispensed a State from reopening legal acts or reviewing situations that predated the delivery of a judgment by the European Court of Human Rights. 28. The Federal Constitutional Court concluded that the domestic courts in the proceedings at issue had interpreted the relevant provision in accordance with the Basic Law. The European Court of Human Rights’ judgment in Brauer (cited above) did not necessitate a different interpretation, particularly because the first applicant’s submission about a close relationship with his father had been made belatedly while the second applicant had not claimed any relationship with his father at all. | 1 |
test | 001-184152 | ENG | LVA | ADMISSIBILITY | 2,018 | SOROCINSKIS v. LATVIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer | 1. The applicant, Mr Georgijs Soročinskis, is a Latvian national who was born in 1938 and lives in Rīga. He was represented before the Court by Ms I. Nikuļceva, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agents, Ms I. Reine and subsequently by Ms K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 20 November 1998 the applicant requested a retirement pension. At that time the applicant had the status of “permanently resident noncitizen” of Latvia; thus, in accordance with paragraph 1 of the transitional provisions of the Law on State Pensions, the periods that he had spent in employment outside the territory of Latvia were not taken into account. Furthermore – under paragraph 13 of the transitional provisions of the Law on State Pensions – in view of the fact that the applicant had worked in Latvia for less than thirty years, his own average monthly “insurance wage” (that is to say the income in relation to which the insurance was paid) instead of the “average monthly insurance wage in the State” (that is to say the average monthly insurance wage of all insured persons in any given calendar year) was taken into account for the purpose of calculating his pension. Accordingly, his monthly pension was set at 9.96 Latvian lats (LVL – approximately 14 euros (EUR)). As this sum was lower than the minimum pension set by the Cabinet of Ministers, the applicant in fact received LVL 31 (approximately EUR 43). 5. On 11 June 1999 an agreement between Latvia and Ukraine on cooperation in the field of social security entered into force, and on 17 June 1999 the applicant applied for a recalculation of his pension to take into account the periods during which he had worked in Ukraine. On 9 February 2000, on the basis of having acquired citizenship of Latvia, the applicant applied for a further recalculation to take account of the remaining periods during which he had worked abroad. The State Social Insurance Agency took into account the periods during which the applicant had worked abroad when determining his aggregate insurance period (for a definition of “insurance period” see paragraph 16 below) as being forty years and twenty-three days; however, as the employment periods accumulated in Latvia had not increased, his own average monthly insurance wage (and not the average monthly insurance wage in the State) was again taken into account in the calculation of his pension. Even with those additions, the applicant’s pension was still below the level of the minimum pension, as set by the Cabinet of Ministers. Thus, after the formal recalculation of his pension, the pension the applicant actually received did not increase. On 1 January 2002, in accordance with amendments to the Law on State Pensions, the applicant’s pension was raised to LVL 45.00 (approximately EUR 62), which was the minimum pension for persons whose insurance period exceeded thirty years. 6. The applicant continued working, and on 2 July 2003 he applied for yet another recalculation of his pension. On 11 September 2003 the State Social Insurance Agency recalculated the applicant’s pension on the basis of the insurance contributions he had made following his retirement. It took the additional time period worked into account in determining the applicant’s aggregate insurance period. However, as the period the applicant had been employed in Latvia still did not reach thirty years, the average monthly insurance wage in the State was not taken into account in the calculation of his pension. Thus, for a total employment period of forty-one years eleven months and twenty-eight days the applicant’s pension was set at LVL 25.09 (approximately EUR 34) per month. Therefore, the applicant continued receiving the minimum pension for persons whose insurance period exceeded thirty years, which by then had been raised to LVL 46.04 (approximately EUR 63). 7. As the applicant continued working, his aggregate insurance period reached forty-two years ten months and twenty-eight days. As of 1 August 2016 his monthly pension was raised to EUR 190.12, with an additional supplement of EUR 37.85. 8. The applicant challenged the decision of the State Social Insurance Agency of 11 September 2003 before the administrative courts, complaining that following the entry into force of the agreement between Latvia and Ukraine on cooperation in the field of social security and after he had acquired Latvian citizenship his pension had not increased. He also noted that all the circumstances forming the basis of his complaint had been set out in his initial application of 2 July 2003. Invoking paragraphs 13 and 33 of the transitional provisions of the Law on State Pensions (see paragraphs 17-18 below) he requested that his pension be recalculated by taking into account the time he had worked in Ukraine. 9. On 25 February 2005 the Administrative District Court dismissed the applicant’s complaint. Having found that the crux of the applicant’s complaint was the alleged failure to take into account the periods he had worked in Ukraine, the court reassessed the decision of the State Social Insurance Agency and concluded that his pension had been calculated correctly. 10. The applicant appealed against this decision, stating that all the circumstances forming the basis of his complaint had been outlined in his initial application. The applicant invoked paragraphs 13 and 33 of the transitional provisions of the Law on State Pensions. On 29 June 2006 the Administrative Regional Court dismissed the applicant’s appeal. The applicant lodged an appeal on points of law on the same grounds. 11. On 15 December 2006 the Senate of the Supreme Court set aside the judgment of the Administrative Regional Court on the grounds that the court had not obtained and reviewed the applicant’s initial application of 2 July 2003 to the State Social Insurance Agency. As a result, the court had not been able to clarify the exact scope of the applicant’s complaint. 12. On 22 May 2007 the Administrative Regional Court examined the applicant’s complaint in oral proceedings. During his oral submissions the applicant emphasised that he requested that his pension be recalculated on the basis of the average salary in the country. His total employment period was forty-two years, whereas the Law on State Pensions required the insurance period to be no less than thirty years in order for the average monthly insurance wage in the State to be used in the calculation. Despite the fact he had worked for forty-two years, only seventeen years had been taken into account. The applicant concluded by stating: “If you are a citizen then everything is taken into account in the calculation, but if you are not then it is not.” The respondent (that is to say the State Social Insurance Agency) then requested the applicant to clarify the scope of the complaint, to which he replied: “I request the pension to be recalculated on the basis of the average salary in the country.” 13. On 14 June 2007 the Administrative Regional Court dismissed the applicant’s complaint. It observed that in his initial application of 2 July 2003 the applicant had requested that his pension be recalculated in accordance with general rules. It furthermore noted that the periods he had worked in Ukraine had been taken into account already since the agreement between Latvia and Ukraine on cooperation in the field of social security had entered in force. Furthermore, following the applicant’s acquisition of Latvian citizenship the periods he had worked in Russia and had spent in military service had also been taken into account. The decision that was being challenged concerned the increase in the applicant’s insurance period. Thus, the entirety of his insurance period of forty-one years eleven months and twenty-eight days had been taken into account in the calculation of his pension. In addition, the applicant was receiving the minimum State pension in the amount set for persons whose insurance period was above thirty years. With regard to paragraph 13 of the transitional provisions of the Law on State Pensions the court noted that the applicant’s pension had been calculated correctly, but in relation to paragraph 33 it observed that this provision was not applicable to the applicant owing to its temporal limitation. 14. In his appeal on points of law the applicant again reiterated that all the circumstances that formed the basis of his claim had been set out in the initial application. He also stated that his pension had not been recalculated on the basis of the amendments to the Law on State Pensions that had entered into force on 1 January 2002. These changes applied to persons whose insurance period was above thirty years, whereas his insurance period amounted to more than forty years. Despite that, his own salary (instead of the average salary in the country) had been taken into account when calculating the level of the pension to which he had been entitled. The applicant referred to paragraphs 13 and 33 of the transitional provisions of the Law on State Pensions, as well as to procedural provisions of the Administrative Procedure Law. 15. On 29 August 2007 the Senate of the Supreme Court rejected the applicant’s appeal on points of law, noting that it contained no arguments as to how the judgment of the Administrative Regional Court had contravened the legal provisions he had referred to. 16. The Law on State Pensions, which entered into force on 1 January 1996, provides that one of the components to be taken into account in the calculation and allocation of pensions is the “insurance period”. Under section 1 of the Law on State Pensions, the insurance period is the period of time over which an insured person has made social insurance contributions or such contributions have been made or should have been made on that person’s behalf. With regard to the time period prior to 1 January 1991 (when the social insurance system had not yet been established), paragraph 1 of the transitional provisions of the Law on State Pensions, as in force at time when it was applied to the applicant, provided: “1. In the case of Latvian citizens, repatriated persons, and their family members and their descendants, periods of employment and periods treated as equivalent to employment that have been accrued within or outside Latvia prior to 1 January 1991 shall count towards the insurance period, which is necessary for the allocation ([or] recalculation) of the State pension, irrespective of [any prior] payment of social insurance contributions. In the case of foreign nationals and stateless persons who were resident in Latvia on 1 January 1991, the insurance period shall be composed of periods of employment and periods treated as equivalent to employment that have been accrued within Latvia, as well as periods treated as equivalent to employment that have been accrued outside Latvia in the cases specified in sub-paragraphs (4), (5) and (10) of this paragraph. The following periods, which are treated as equivalent to employment accrued up to 1 January 1991 ... shall be considered as counting towards the insurance period to be taken into account in calculating the pension: ... (4) periods of study at higher-education institutions, and at other training institutions at post-secondary level; (5) periods of doctoral study, ... postgraduate education or ongoing vocational training; ... (10) time spent in places of detention by victims of political persecution ... [or] in exile, and time spent escaping from such places, those periods to be multiplied by three, or by five in the case of time spent in the [Soviet] Far North and regions treated as equivalent. ...” 17. Under paragraph 13 of the transitional provisions of the Law on State Pensions, with respect to the transitional period, another component that is taken into account in the calculation of the pension is the person’s average monthly insurance wage within a specified time period. Thus, with respect to persons who retired in 1998, that person’s average monthly insurance wage over twenty-four months from 1996 until 1998 was taken into account. If, however, (i) the person’s insurance period in Latvia was not less than thirty years (save for politically persecuted persons, in relation to whom a different methodology applied) and if the person’s average monthly insurance wage for the last twenty-four months was below the average monthly insurance wage in the State in 1997, or (ii) the person had been officially unemployed, the average monthly insurance wage in the State in 1997 was taken into account in the calculation of his or her pension. 18. On 1 January 2002 the transitional provisions of the Law on State Pensions were supplemented by paragraph 33, which provides that in calculating the pension payable to a person whose insurance period is not less than thirty years and whose average monthly insurance wage, as calculated in accordance with paragraph 13 of these transitional provisions, is lower than the average monthly insurance wage in the State in the period between 1 January 1996 and 31 December 1999, the average monthly insurance wage in the State over the said forty-eight months should be taken into account. The retrospective application of this provision is limited to pensions that were granted after 1 January 2000. 19. The Government submitted a letter of 7 September 2016 from the Ministry of Welfare, the relevant part of which stated: ““The favourable model of calculating a person’s pension” enshrined in paragraph 13 of the transitional provision of the Law would not be applied to a Latvian citizen in the following situations: 1) In January 1998 a Latvian citizen requests a retirement pension for a total insurance period of 32 years, of which 9 years are [accrued] in Latvia but 23 years [are accrued] in Georgia. The pension is calculated for 32 years but the average monthly insurance wage in the State is not taken into account in the calculation of the initial capital, as the insurance period in Latvia is below 30 years; 2) In January 2016 a Latvian citizen requests a retirement pension for a total insurance period of 40 years, of which 24 years are [accrued] in Latvia but 16 years [are accrued] in Estonia. In accordance with the legislation, Latvia grants and pays the retirement pension only for the 24 years [accrued] in Latvia; accordingly, the average monthly insurance wage in the State is not taken into account in the calculation of the initial capital, as the insurance period for which Latvia pays is below 30 years; 3) In January 2012 a Latvian citizen requests a retirement pension for a total insurance period of 38 years, of which 25 years are [accrued] in Latvia but 13 years [are accrued] in Belarus. In accordance with the Agreement between the Republic of Latvia and Belarus on the cooperation in the field of social security, Latvia grants the retirement pension only for the insurance period accrued in Latvia – the 25 years. Accordingly, the average monthly insurance wage in the State is not taken into account in the calculation of the initial capital, as the insurance period for which Latvia pays is below 30 years.” | 0 |
test | 001-169206 | ENG | RUS | CHAMBER | 2,016 | CASE OF CHEREPANOV v. RUSSIA | 4 | Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1962 and lives in Moscow. 7. On 14 May 2012 the Dorogomilovskiy District Court, Moscow (“the District Court”), awarded 45,460.21 Russian roubles to N., to be paid by the applicant. The judgment of 14 May 2012 entered into force on the same day. 8. On 16 October 2012 the District Court issued a writ of execution. 9. By a ruling of 14 January 2013 a bailiff with the Dorogomilovskiy bailiffs’ service, Moscow (“the bailiff”), initiated enforcement proceedings. The applicant was invited to voluntarily comply with the judgment debt within three days of the date on which he received a copy of that ruling. 10. On the same date the bailiff issued a ruling restricting the applicant’s right to leave the country for a period of six months on the grounds that the judgment creditor had asked for such a restriction to be imposed on the applicant. The ruling was based on the 2007 Federal Act on Enforcement Proceedings (sections 6, 14, 30, 64, 67 and 68) and the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures) (section 15(5)). 11. On 25 February 2013 the bailiffs’ service sent copies of the rulings of 14 January 2013 to the applicant. The applicant only received them on 12 March 2013. 12. The applicant, not having been aware until 12 March 2013 of the travel restriction imposed on him, decided to visit his one-year-old daughter, who lived in Italy. However, on 2 March 2013, the applicant was stopped by border guards as he was attempting to board a plane. 13. On 13 March 2013, after having received copies of the rulings of 14 January 2013, the applicant paid the judgment debt. 14. On 14 March 2013 the applicant complained to the Chief Bailiff of Moscow about the actions of the bailiff. He submitted that the bailiff had sent him copies of the rulings of 14 January 2013 only after the expiry of statutory time-limits. Furthermore, the bailiff had imposed the travel ban on him on the same date as that on which the enforcement proceedings had been initiated. This indicated that the bailiff had not had at his disposal any information as to whether he (the applicant) had been evading voluntary compliance with the writ of execution. 15. On 21 March 2013 the bailiffs’ service lifted the travel restriction and terminated the enforcement proceedings. 16. On 4 April 2013 the Deputy Chief Bailiff of Moscow examined the applicant’s complaint of 14 March 2013. He acknowledged that the rulings of 14 January 2013 had been sent to the applicant outside the statutory timelimits and allowed the applicant’s complaint in that part. However, he found, with reference to section 67 (2) of the 2007 Federal Act on Enforcement Proceedings, that the travel ban had been imposed on the applicant in accordance with law. 17. On 23 May 2013 the applicant challenged in court the bailiff’s ruling of 14 January 2013 imposing a travel ban on him. He submitted that the ruling had not been duly reasoned since he had never evaded the obligations imposed on him by the judgment of 14 May 2012. Furthermore, in breach of statutory requirements, he had not been duly informed of the travel restriction imposed on him since he had only received the bailiff’s ruling on 12 March 2013. 18. On 12 September 2013 the District Court examined and dismissed the applicant’s complaint. The District Court held, in particular, that the bailiffs had imposed the travel restriction on the applicant under section 30 of the 2007 Federal Act on Enforcement Proceedings, which allows the imposition of such a restriction (upon the request of a judgment creditor) before the expiry of the time-limit set for voluntary payment of the judgment debt. 19. In his appeal against the judgment of 12 September 2013, the applicant submitted that the District Court, in taking its decision, had not applied section 15 of the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures), which provided that the right of a Russian citizen to leave the Russian Federation could be temporarily restricted only when it had been established that he or she had evaded obligations imposed on him or her by a court. 20. On 16 December 2013 the Moscow City Court (“the City Court”) upheld the judgment of 12 September 2013. 21. On 10 February 2014 the applicant lodged a cassation appeal with the Presidium of the City Court. 22. On 17 March 2014 a judge of the City Court refused to refer the applicant’s cassation appeal to the cassation court. 23. On 3 July 2014 the Constitutional Court refused to accept for examination the applicant’s complaint concerning whether section 30(2) and section 67(2) of the 2007 Federal Act on Enforcement Proceedings were compatible with the Constitution (Ruling no. 1561-O). 24. In particular, the Constitutional Court held that section 67(2) of that Act could not be applied in the course of enforcement proceedings independently from the general provisions on the application of temporary travel restrictions set out in section 67(1) and in the absence of confirmation that the debtor had been notified of the enforcement proceedings instituted in respect of him and of his obligation to voluntarily comply with the writ of execution within the time-limit set by the bailiffs’ service. The bailiffs’ service was entitled to impose travel restrictions only in cases in which the debtor had not complied with the writ of execution within the statutory fiveday period, running from the date on which the debtor received the decision to initiate enforcement proceedings. 25. Having regard to the above, the Constitutional Court concluded that the closely linked provisions of section 30(2) and section 67(2) of the 2007 Federal Act on Enforcement Proceedings did not provide for the possibility that the bailiffs’ service could grant the judgment creditor’s request for the imposition of a travel ban on the debtor at the same time as it took the decision to initiate enforcement proceedings (that is to say, before the expiry of the deadline set for voluntarily enforcement of the writ of execution) and also before it received confirmation that the debtor had been aware of the enforcement proceedings initiated in his respect and had evaded voluntary compliance with the writ of execution. Therefore, the legal provisions challenged by the applicant could not be regarded as having breached the applicant’s constitutional rights. 26. Following the Constitutional Court’s decision the applicant lodged a request with the District Court for it to review its judgment of 12 September 2013 under the procedure for re-opening of cases due to new circumstances. 27. On 8 October 2014 the District Court dismissed the applicant’s request, having found that the provisions referred to by the applicant had not been declared incompatible with the Constitution by the Constitutional Court and that the interpretation by the Constitutional Court of those provisions could not be considered as constituting new circumstances. 28. On 2 April 2015 the City Court upheld that decision. 29. On 10 June 2015 a single judge of the City Court declined to refer the applicant’s cassation appeal for consideration by the Court of Cassation. 30. On 31 August 2015 a single judge of the Supreme Court of the Russian Federation refused to refer the applicant’s cassation appeal for consideration by the Supreme Court. | 1 |
test | 001-157705 | ENG | AZE | CHAMBER | 2,015 | CASE OF GAFGAZ MAMMADOV v. AZERBAIJAN | 4 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate facilities;Adequate time;Preparation of defence;Article 6-3-c - Defence through legal assistance);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | András Sajó;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1953 and lives in Baku. 6. The opposition group Ictimai Palata was planning a demonstration to be held on 19 June 2011 in Baku. On 9 June 2011 the organisers – consisting of several members of that group – gave prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”), informing it of the date, time, place and purpose of the demonstration. According to the notice, the assembly was scheduled to take place from 5 p.m. to 7 p.m. on 19 June 2011 at the square in front of the Narimanov Cinema in Baku. 7. The BCEA refused to authorise the holding of the demonstration at the place indicated by the organisers and proposed another location on the outskirts of Baku. 8. Nevertheless, the organisers decided to hold the demonstration in one of the central areas of Baku, namely, near the Puppet Theatre on Seaside Boulevard. 9. According to the applicant, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were demanding free and fair elections, democratic reforms, freedom of assembly, and the release of persons arrested during some previous demonstrations. 10. The applicant attended the demonstration, but shortly after it had started the police started to disperse it. The applicant was arrested at around 6.10 p.m. during the dispersal operation. He claimed that he had been arrested and taken to a police car by plain-clothed persons. According to the official records, he was arrested by police officers Z.H. and J.M. He was taken to police station No. 9 of the Sabail District Police Office. 11. Police officers Z.H. and J.M. stated the following in a report (raport) submitted to a superior police officer: “... at around 6.10 p.m. we were on duty ... when Mammadov Gafgaz Suleyman oglu, whose identity was established later, was attempting to hold an unlawful demonstration. We demanded that he stop his illegal actions, [he] deliberately disobeyed [and] continued his actions, and for that reason we brought him to the [police station] ...” 12. According to the applicant, he was questioned at the police station. 13. At 6.50 p.m. on the day of the arrest, an “administrative-offence report” (inzibati xəta haqqında protokol) was issued by police officer H.H. in respect of the applicant. The report stated that by deliberately failing to comply with the lawful order of the police during the demonstration, the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). 14. The applicant refused to sign the report, which contained a preprinted text declaring that “[the arrested person] was familiarised with the report, the reasons for his or her arrest and his or her rights under Articles 371, 400.2, 401.1.6, 401.1.7 of the CAO of the Republic of Azerbaijan were explained”. 15. Subsequently, police officer H.H. prepared an “administrative-arrest report” (inzibati qaydada tutma haqqında protokol), stating that: “... the [applicant] was subjected to administrative arrest at 8 p.m. on 19 June 2011 ... in order to ensure issuance of an administrative-offence report, to ensure a correct and timely examination of the case, [and] to ensure the execution of decisions, in accordance with Articles 396.1.2 and 398 of the CAO.” 16. According to the applicant, he was never served with a copy of the administrative-offence report or with other documents in his case file. He was not given access to a lawyer after the arrest or while he was kept in police custody. 17. On 20 June 2011, the day after his arrest, the applicant was brought before the Sabail District Court. 18. According to the applicant, he refused the assistance of a Statefunded lawyer and insisted on hiring a lawyer of his own choice, but the judge disregarded his request. His representation by that lawyer was ineffective and of a formalistic nature. The hearing was very brief and members of the public, including human rights defenders and journalists, were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public. 19. The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer and that he had participated in the demonstration because he had a constitutional right to freedom of assembly. 20. According to the record of the hearing provided by the Government, in response to the judge’s question whether the police officers, before arresting him, had issued a relevant notice about dispersal of the demonstration, the applicant gave the following answer: “There were a lot of police officers and they were demanding that we disperse. But their demand was not lawful because we were exercising our right. Instead of calling on us to disperse, the responsibility of the police should have been to ensure our security.” 21. The only witness questioned during the court hearing was police officer Z.H., who testified as follows: “At around 6.10 p.m. on 19 June 2011 ... we noticed that [the applicant], together with a group of other people, was attempting to hold an unauthorised demonstration by shouting out slogans, and ... asked them to observe silence. However, [the applicant] continued his actions, disobeying our requests ...” 22. According to the record of the hearing, the State-funded lawyer stated that the applicant was not guilty and asked the court to take into consideration the applicant’s age and the fact that he had children. 23. The court found that the applicant had failed to stop participating in the unauthorised demonstration. The court convicted him under Article 310.1 of the CAO and sentenced him to five days’ “administrative” detention. 24. The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction was in violation of his rights because the demonstration in which he had participated had been peaceful. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He urged the Baku Court of Appeal to quash the first-instance court’s decision. 25. The applicant was represented before the Baku Court of Appeal by a lawyer of his own choice. 26. On 24 June 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct. | 1 |
test | 001-178870 | ENG | RUS | COMMITTEE | 2,017 | CASE OF POLTORATSKIY AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) | 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. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-150232 | ENG | LVA | CHAMBER | 2,015 | CASE OF PETROPAVLOVSKIS v. LATVIA | 1 | Preliminary objection allowed (Article 35-3 - Ratione materiae) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 6. The applicant was born in 1955 and lives in Riga. 7. Before 29 October 1998, when the Latvian Parliament (Saeima) enacted the Education Law, education in State and municipal schools continued to be conducted in Latvian and Russian, a practice which was inherited from Soviet times. The Education Law, which took effect on 1 June 1999, provided that the only language of instruction in all State and municipal schools in the Republic of Latvia would be the State language, that is, Latvian. It also provided that the language of instruction might be different in private schools, in State and municipal schools implementing national minority curricula and in other educational establishments as provided by law. As regards the State and municipal schools implementing national minority curricula, it was for the Ministry of Education to set out specific subjects to be taught in the State language (section 9(1) and (2)) and the Minister for Education was to ensure that the relevant regulations were submitted to the Cabinet of Ministers by 1 September 1999 (transitional provisions, paragraph 3). It was also established that everyone should learn the State language and take the State language proficiency test in order to obtain primary and secondary education (section 9(3)). 8. Between 2003 and 2004 the applicant was actively involved in protests against the education reform. He was one of the main leaders of a movement named “Headquarters for the Protection of Russian Schools” (“Krievu skolu aizstāvības štābs” in Latvian), which was involved in promoting and advocating protests against the education reform. He participated in meetings and demonstrations against the education reform and made public statements advocating ideas concerning the Russian-speaking community’s rights to education in Russian and the preservation of the State-financed schools with Russian as the sole language of instruction. The Government provided the Court with evidence of media coverage of these protests in the period from 28 June 2003 to 23 September 2005, including news reports by the Latvian news agency LETA and articles in the daily newspapers Diena and Lauku Avīze and in the regional newspaper Novaja Gazeta (in Russian). There were thirteen news reports and articles in total. 9. After several sizable meetings and demonstrations, Parliament adopted amendments to the Education Law on 5 February 2004. The new text provided that from 1 September 2004 all secondary State and municipal schools implementing national minority curricula had to ensure instruction in the State language in not less than 60% of the study curriculum, including foreign languages, in respect of pupils commencing their studies in the tenth grade. These schools also had to ensure that the curriculum relating to minority language, identity and culture was taught in the minority language (transitional provisions, paragraph 3). 10. In November 2003 the applicant applied to the Naturalisation Board (Naturalizācijas Pārvalde) seeking to acquire Latvian citizenship through naturalisation. On 1 December 2003 he passed the naturalisation exams (see paragraph 29 below). 11. The Naturalisation Board examined the documents submitted by the applicant and, finding that he met the requirements of Articles 11 and 12 of the Citizenship Law, included his name in the list of candidates applying for citizenship. The list was attached to the draft decision on granting citizenship and transferred to the Cabinet of Ministers (Ministru kabinets) for the final decision. 12. On 16 November 2004 the Cabinet of Ministers decided to strike the applicant’s name out of the list, thus refusing his application for naturalisation. 13. On 30 November 2004 the Naturalisation Board informed the applicant of the decision of the Cabinet of Ministers. 14. On 7 December 2004 the applicant instituted administrative proceedings against the Cabinet of Ministers. He asked the Administrative District Court (Administratīvā rajona tiesa) to “obligate the Cabinet of Ministers to take a decision on admitting him to Latvian citizenship”. The applicant stated that the decision regarding admission to Latvian citizenship was an administrative act and could not be regarded as a political decision. He considered inter alia that a person fulfilled the obligation of loyalty if he met all the requirements of the Citizenship Law and unless any restrictions stated in the Law could be applied to such person. He considered that the refusal to grant him citizenship was unlawful; in accordance with the principle of equal treatment, his views could not constitute grounds for a refusal. He stated that his name had been struck out of the list owing to his participation in the political party “For Human Rights in United Latvia” (“Par cilvēka tiesībām vienotā Latvijā”, abbreviated to PCTVL) and to his public statements. The PCTVL had nominated him to run for office as mayor of Riga, but the refusal had denied him the right to stand for election in the local municipal elections and had been politically motivated. 15. On 10 December 2004 the applicant gave an interview to a journalist from the daily newspaper Lauku Avīze. His answer to the question whether he hoped to win the case before the domestic and international courts was reportedly as follows: “If I wanted to gain political power, I would have been naturalised a long time ago and would have been elected to [Parliament]. The chances of winning a case in a court in Latvia might be fifty-fifty. But I do not need that. Frankly speaking, we need a broad international scandal. With my case of citizenship we’ve achieved that, and, additionally, [we’ve got] a broad public relations campaign for the PCTVL for free.” 16. In its submissions of 5 January 2005 to the Administrative District Court, the Cabinet of Ministers emphasised that the Minister of Justice had drawn attention to the provisions of the Citizenship Law to the effect that in seeking Latvian citizenship a candidate must demonstrate allegiance to the Republic of Latvia, not only with a promise but also by his actions, and that the applicant’s actions were not compatible with the oath of allegiance to the Republic of Latvia. Having examined the information at its disposal, the Cabinet of Ministers decided that the applicant’s actions at the material time had not demonstrated loyalty to the Republic of Latvia. 17. In its additional submissions of 17 November 2005 to the Administrative District Court, the Cabinet of Ministers argued, inter alia, that its political decision had been based on the applicant’s actions; it was clear that he could not truthfully give a pledge of allegiance. It was evidenced by his own public statements, which indicated that he did not have a genuine link with the Republic of Latvia, that he did not wish to establish such a link and that he had applied for citizenship as part of a political campaign to harm the Republic of Latvia. The Cabinet quoted statements he had made during the interview on 10 December 2004 (see paragraph 15 above). Relying on the principle of “democracy capable of protecting itself”, it argued that national security, protection of others and also the State language were the democratic values which the State purported to protect. The applicant’s public statements revealed that his actions were aimed at destabilising the situation in the country and that his wish to become a citizen had this purpose in mind. His statements and actions showed that he posed a real threat to national security: (i) the applicant was a leader of an organisation whose activities were directed towards disturbing public order and safety; (ii) the organisation’s activities attested to the possibility of using violence; (iii) the applicant’s statements indicated that he was ready to use violence; (iv) the applicant’s actions demonstrated his unwillingness to allow the State authorities to exercise legitimate control over the lawfulness of the organisation’s activities; and (v) the applicant’s genuine aim was not to acquire Latvian citizenship but to conduct an organised campaign directed at triggering a political scandal. 18. On 16 December 2005 the Administrative District Court decided to terminate the proceedings without examining the case on the merits. The court concluded that the decision of the Cabinet of Ministers regarding admission to Latvian citizenship (lēmums par personas uzņemšanu Latvijas pilsonībā) was “a political decision” (see paragraph 33 below) and as such not subject to examination by a court. The applicant appealed, stating, inter alia, that the Citizenship Law could not be used as a political weapon and that a court should have full jurisdiction over such decisions. 19. On 13 February 2006 the Administrative Regional Court (Administratīvā apgabaltiesa) upheld the decision of the Administrative District Court and also considered that the decision of the Cabinet of Ministers was a political decision. The applicant appealed, stating, inter alia, that the granting of citizenship could not be used as a political weapon and that a court should have full jurisdiction over such decisions. 20. On 11 April 2006 the Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) upheld the decision of the Administrative Regional Court. The court established that, under the Citizenship Law, the Naturalisation Board should prepare a draft decision as regards the establishment of legal facts. The final decision was taken by the Cabinet of Ministers. The Cabinet took its decision, based on the draft decision prepared by the Naturalisation Board, by a vote. Members of the Cabinet were not required to give reasons for their vote and the Law did not stipulate the details of the decision-making process in this respect. The court stated, inter alia, that: “[8.3] ... the Cabinet of Ministers [has] unrestricted competence as regards granting or refusing citizenship to persons who, as affirmed by the Naturalisation Board, have met the naturalisation criteria. Such unrestricted freedom of action, which is also in stark contrast (krasi kontrastē) with the detailed regulation regarding a decision of the Naturalisation Board, attests that the Cabinet of Ministers in such a case performs not an administrative but rather a constitutional function. Thus, the Cabinet of Ministers cannot be regarded as a public authority for the purposes of administrative procedure. Therefore, the argument stated in the ancillary complaint that the said decision meets all criteria of an administrative act is unfounded. Having regard to the above, the conclusion of [the Administrative Regional Court] that the decision appealed against cannot be regarded as an administrative act, but as a political decision, is correct. ... [10] In the Administrative Department’s view, if a person meets all the requirements for naturalisation and if no restrictions for naturalisation are applicable, [there is] a subjective right only to have a draft decision concerning acquisition of citizenship examined by the Cabinet of Ministers. [11] The fact that the legislation does not set out a procedure for appeal against a decision of the Cabinet of Ministers does not mean that such decision is subject to appeal like an administrative act, in accordance with the Administrative Procedure Law. There is no established practice in Latvia of indicating expressis verbis in a legal act that the relevant decision is not subject to appeal ... [12] ... In the Administrative Department’s view, the laws of Latvia provide for the possibility of monitoring (kontrolēt) decisions taken on naturalisation issues. That is to say, decisions taken by the Naturalisation Board (administrative acts) are subject to appeal before a court, in accordance with the Administrative Procedure Law, whereas if a decision of the Cabinet of Ministers or a part of it is incompatible with the law, a public prosecutor can submit an application for supervisory review (protests) under section 19 of the Law on the Prosecutor’s Office. Therefore, the [applicant’s] reference to [Article 12 of] the European Convention on Nationality is unfounded.” 21. The applicant has not re-applied for Latvian citizenship through naturalisation to date. | 0 |
test | 001-148477 | ENG | RUS | ADMISSIBILITY | 2,014 | POPOV AND OTHERS v. RUSSIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicants are Russian nationals residing in Moscow. Their names and dates of birth are set out in the appendix. 2. In the early 1960s the municipal authorities of Moscow authorised the creation of a garage-owners’ cooperative, G., and allocated a plot of land for use by the cooperative. The plot of land remained municipal property. 3. All of the applicants were members of the cooperative G. 4. In 2001 the municipal authorities of Moscow adopted a new zoning and urban development plan, under the terms of which the plot of land occupied by the prefabricated metal garages was assigned for housing development. 5. On 1 December 2005 the lease on the land occupied by the garages expired. The municipal authorities informed the cooperative G. that it would not be renewed. 6. On 29 March 2006 the Justice of the Peace for the 125th Circuit of the Kuzminki District of Moscow recognised the applicants’ property rights in respect of the prefabricated garages. On 22 June 2006 the judgment was upheld on appeal by the Kuzminskiy District Court of Moscow. On the basis of these judgments the applicants’ property rights were recorded in the real estate register by the Moscow department of the Federal Registration Service. 7. Subsequently, in 2006, the urban development project was approved by the municipal authorities and T Jsc, a private construction company, was chosen to be the contractor for the project. The applicants were asked to vacate the plot of land and were offered compensation for the prefabricated garages or, as an alternative, the opportunity to invest in the construction of new parking facilities, with the price of the parking spaces being offset by the value of the expropriated prefabricated metal garages. The applicants refused these offers. The municipal authorities instituted civil actions against them. 8. On 16, 18, and 21 July 2008 the Kuzminskiy District Court of Moscow ordered the vacating of the plot of land, the expropriation of the applicants’ garages, and payment of compensation to the owners by T Jsc. The court awarded each of the applicants between 8,000 and 8,500 euros (EUR) in compensation for the expropriated property, the sums being derived from the expert valuation of 12 March 2008. It rejected an alternative expert valuation provided by the applicants because it had been based on market research rather than on a valuation of the actual properties, and also because of its failure to distinguish between the prefabricated garages and the various extensions built onto them without permission. The District Court reviewed the applicants’ claims regarding their title to the plots of land and concluded that since the expiry of the lease in 2005 the applicants had occupied and used the plots of land without any title or right. It took this fact into account in assessing the value of the expropriated garages, since it was only the cost of the actual prefabricated metal garage units themselves that had to be compensated. 9. The applicants appealed against the judgments. 10. On 16 October and 6 November 2008 the Moscow City Court upheld the lower court’s judgments in full, dismissing all of the applicants’ counter-arguments. 11. In view of the high cost of demolishing the garages and vacating the occupied land, the applicants did not comply with the judgments. On 29 January 2009 the Kuzminskiy District Court of Moscow – ruling on the municipal authorities’ application – altered the manner of enforcement of the aforementioned judgments by ordering the applicants to vacate their garages and allowing the municipal authorities to demolish them and to clear the plot of land. 12. By August 2009 the judgments had been enforced as regards the parts concerning the demolition of the prefabricated garages and the vacating of the plots of land. In respect of the part concerning payment of compensation for the expropriated garages, the applicants obtained the relevant writs of execution but chose not to initiate enforcement proceedings by submitting them to the Bailiffs’ Service. The main rationale behind this course of action by the applicants was their intention to further challenge the lawfulness of the aforementioned judgments before the courts. 13. In July 2010 – after several unsuccessful attempts to have the expropriation judgments reconsidered – the applicants submitted the writs of execution to the Taganskiy District Department of the Federal Bailiffs’ Service. By September 2010 all of the payments had been made to the applicants and the enforcement proceedings were completed by the bailiffs. | 0 |
test | 001-178178 | ENG | HUN | CHAMBER | 2,017 | CASE OF M.F. v. HUNGARY | 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);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation) | Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 6. The applicant was born in 1990 and lives in Gyöngyöspata. He is of Roma origin. 7. On 12 August 2010 at about 1.50 a.m. the applicant was taken to Gyöngyös Police Department after he and his accomplices had been apprehended while driving a car containing goods apparently stolen from a nearby summer house. 8. The applicant submitted that shortly afterwards, for about twenty minutes, he had been ill-treated by two police officers; at about 4.30 a.m. the two officers had returned and had continued hitting and kicking him for another thirty minutes or so. Some two hours later the two officers had escorted the applicant to another room for questioning, but had then continued beating him, together with several other officers. In the applicant’s account of the events, altogether six officers and two security guards took part in the ill-treatment, with the apparent intention of extracting his confession to further offences. He stated that he had been hit in the face, forced to his knees and kicked repeatedly; a paper bag had been pulled over his head and the soles of his feet had been hit many times with a piece of wood. The officers had insisted that he admit to at least three counts of theft in order for them to stop hitting him, and they had repeatedly insulted him, making references to his Roma origin. One of them had said that they would not mind if he died – there would just be one Gypsy less. 9. The applicant eventually signed the record of the questioning, which stated that the questioning had taken place between 5.51 a.m. and 6.33 a.m. 10. Later that morning, at about 6 a.m., the applicant was allegedly escorted to the toilet, where he said the officers had again started hitting and kicking him. One of them had removed a towel-holder from the wall and hit the applicant’s hand with it. Again, references were allegedly made to the applicant being a Roma. 11. The applicant was released at about 2 p.m. 12. Later that day, at the request of the applicant’s mother, the general practitioner of the neighbouring village, Dr C.S., came to the applicant’s house and examined him. Since she had apparently been told only about chest complaints, she did not examine the applicant’s legs or feet. She did not identify any marks indicating external injury on the applicant but found that his ribs were sore and suggested that he go to hospital if he wished to obtain a medical certificate recording his injuries. Dr C.S. herself did not produce a medical report on the premises. 13. On the same evening the applicant went to the emergency room of Bugát Pál Hospital in Gyöngyös. At 7.34 p.m. he was issued with a medical certificate, for which he paid the fee due, stating that he had bruises on the forehead, the nose and the left shoulder and an abrasion on the right hip; both his hands and arms were swollen and hyperaemic; and the rear surface of both thighs, as well as the soles of his feet, were swollen, red and sore. According to the certificate, the applicant had numerous contusions that had been inflicted by other persons. 14. Still on the same evening, at 8.38 p.m., X-rays were taken of the applicant at Albert Schweitzer Hospital in Hatvan, a town at a distance of 32 kilometres, where the applicant was driven by his family members. He was diagnosed with a “chest contusion”, a “skull contusion” and “bodily injury inflicted by human force”. 15. The applicant stated that he had been unhurt at the time that he had been taken to the police department. He added that between his release and the medical inspection, he had been continuously accompanied by his relatives, who testified in the ensuing proceedings that he had not suffered any injuries outside the police department. 16. On 27 September 2010 the applicant lodged a criminal complaint alleging that he had been brutalised by police officers. The applicant alleged that during the ill-treatment the officers had made repeated references to his Roma origin. The case was being investigated by the Miskolc Public Prosecutor’s Office. 17. On 8 November 2010 the applicant was heard as a witness and shown, for the purposes of his identifying his alleged assailants, the photos of police officers serving at the Gyöngyös Police Department. The applicant acknowledged from the outset that he would be able to identify with certainty only three of the several perpetrators. Nevertheless, he finally identified eight persons as the perpetrators – six police officers (T.B., M.Z., Gy.K., K.V., F.I. and H.A.) and two security guards employed by the police department (P.G. and Z.A.). Subsequently, the applicant became uncertain about the involvement of K.V. and H.A. 18. The prosecutor’s office appointed a forensic expert. This expert had at his disposal the medical reports issued by Bugát Pál and Albert Schweitzer Hospitals. In his opinion given in retrospect, he made the following statement as to the time when the applicant’s injuries had been sustained: “The exact time of the infliction of the injuries cannot be established. Given that the doctor examining the applicant did not document any lesions characteristically pointing to an inveterate injury, it can only be said that the injuries had been sustained within a 24-48-hour-time-frame preceding the medical care. Since, according to the police report on the application of coercive measures, the local police constable handed the applicant over to the officer on duty without any complaints or injuries, the injuries were likely to have occurred after this point in time.” “A sérülések pontos keletkezési ideje nem határozható meg. Tekintettel arra, hogy a vizsgáló orvos idősülőben lévő sérülésre jellegzetes elváltozásokat nem dokumentált, az valószínűsíthető, hogy a sérülések az orvosi ellátást megelőző 24-48 órás időtartamon belül alakultak ki. Mivel a kényszerítő eszköz alkalmazására írt rendőri jelentés adatai szerint a körzeti megbízott panasz és sérülésmentesen adta át nevezettet az ügyeletes tisztnek, a sérülések valószínűsíthetően ezen időpontot követően keletkeztek.” 19. On 28 December 2010 the Miskolc Investigating Prosecutor’s Office discontinued the investigation, holding in essence that the applicant’s version of events was not plausible. The prosecutor emphasised the fact that since the applicant had been apprehended just after he had committed the crime in question (and still in possession of the proceeds of that crime), coercive interrogation by police officers with the intention of extracting his confession to the offence in question seemed pointless and thus hardly plausible. Relying on the internal records of the police department recording the shifts of the officers, the prosecutor was satisfied that three of the alleged perpetrators, Gy.K., F.I. and H.A., had alibis for the time of the incident, in that early in the morning of that day, they had been assigned to patrol service. Therefore, they could not possibly have been present at the applicant’s questioning. Furthermore, the two security guards (P.G. and Z.A.) were not allowed to leave their station and thus could not have been present at the incident. The prosecutor also observed that a general practitioner had examined the applicant between his release from the police department and the first hospital inspection, but had recorded no injuries. The prosecutor also found it material that the applicant had been uncertain of the identities of the alleged perpetrators when shown photos of the Gyöngyös police officers; that he had contradicted himself on several occasions; and that he had complained about the alleged incident only on 27 September 2010, not before. 20. On 16 January 2012 the Borsod-Abaúj-Zemplén County Public Prosecutor’s Office dismissed the applicant’s complaint against the discontinuation order. The prosecutor was satisfied that the investigation had been adequate and comprehensive, and that the obtaining of further evidence – in particular, by questioning the applicant’s brother and friend, who were present at his release – was superfluous. The applicant’s allegations about racist motives behind the ill-treatment were not addressed. This decision was served on the applicant on 23 January 2012. 21. On 21 March 2012 the applicant brought a substitute private prosecution against the eight presumed perpetrators – that is to say, six police officers and two security guards – on charges of coercive interrogation. The motion included assertions about racial insults being uttered during the incident. 22. The Eger High Court held a hearing on 26 September 2012. At that hearing the applicant stated that he did not recognise the defendants P.G. and Z.A. and that he was not certain if K.V. had beaten him, so he dropped the charges against them. Accordingly, the court terminated the proceedings against these three defendants. 23. The remaining defendants either denied the charges or refused to make any statements. The High Court heard Dr C.S., who confirmed that she had not seen any marks of external injury on the applicant’s body when examining him on the day of the incident. A court-appointed medical expert stated that if the applicant had had the injuries in question when examined by Dr C.S. then the latter must have noticed them. The court also obtained testimony from the applicant’s mother and brother and a friend (the two latter had not been heard during the investigation), who had been waiting for him in front of the Gyöngyös Police Department on his release. They all stated that the applicant had already had those injuries at the moment of his release. 24. The High Court was satisfied that Gy.K., F.I. and H.A. had alibis for the time of the incident. As to the charges against the two other officers, T.B. and M.Z., the court highlighted that even though the applicant said that he had been ill-treated in order to force him to admit to at least three counts of theft – which he finally did – there was actually no reference in the record of the questioning to any further counts of theft. The court also emphasised that, contrary to the statements of the applicant, the two officers could not have been continuously present in the Gyöngyös Police Department because between 3 a.m. and 5 a.m. they had been carrying out some onsite inspections in another town, Gyöngyöspata. 25. On 28 November 2012 the Eger High Court acquitted the officers for want of sufficient evidence. According to the reasoning of the judgment, the court relied on documentary evidence relating to the applicant’s apprehension and questioning, documents relating to the service particulars of the officers involved, the testimony of the applicant, medical documentation, and the testimony of the officers. 26. The applicant did not appeal. 27. As a consequence of the applicant lodging, but subsequently withdrawing, a criminal complaint against K.V., criminal proceedings on charges of false accusation were conducted against the applicant. On 7 November 2013 the Eger District Court found him guilty as charged and placed him on three-year probation. The judgment was upheld in essence by the Eger High Court on 10 June 2014; however, the applicant’s sentence was altered to 180 days of community work. | 1 |
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