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test
|
001-168398
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,016 |
NATIONALDEMOKRATISCHE PARTEI DEUTSCHLANDS (NPD) v. GERMANY
| 4 |
Inadmissible
|
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev
|
1. The applicant, the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD), is a German political party. It was represented before the Court by Mr P. Richter, a lawyer practising in Saarbrücken. 3. The applicant was founded on 28 November 1964. It regularly participates in elections to the European Parliament, the Federal Parliament (Bundestag), parliaments of the Länder and municipal elections. At the time the present application was lodged, the applicant was represented in the parliaments of the Land of Mecklenburg-West Pomerania and the Land of Saxony, as well as numerous city councils and county councils. 4. In 2001, the Federal Parliament, the Federal Council (Bundesrat) and the Federal Government (Bundesregierung) lodged an application for the ban of the applicant (Verbotsantrag) with the Federal Constitutional Court (nos. 2 BvB 1/01, 2 BvB 2/01, 2 BvB 3/01) pursuant to Article 21 § 2 of the Basic Law (see relevant domestic law and practice, paragraph 15). The plaintiffs alleged that the applicant was unconstitutional and sought to damage the free democratic basic order (freiheitlich-demokratische Grundordnung). They claimed that the applicant propagated views that were National Socialist, anti-Semitic, racist and anti-democratic and sought to abolish what it called the “system” imposed by the Allied powers at the end of the Second World War. They further stated that the applicant worked towards restoring the “community of the people” (Volksgemeinschaft) and towards replacing the multi-party parliamentary democracy by a “rule of the people” (Volksherrschaft) of the “national elites” (nationale Eliten). Finally, they alleged that the members and supporters of the applicant did not hesitate to use violence and threatened their opponents with “reckoning” (Abrechnung) upon taking power. 5. On 18 March 2003 the Federal Constitutional Court decided to discontinue the proceedings because the statements cited in support of the unconstitutionality of the party could not be clearly distinguished from those of undercover agents of the intelligence services. It found that the principle of separation between party and State (Staatsfreiheit), which was an essential requirement for proceedings aimed at banning the applicant, was not respected due to the influence of those agents, who were even present in the party’s leadership, on the applicant’s decision-making process. 6. On 8 November 2012 the applicant lodged an application against the Federal Parliament, the Federal Council and the Federal Government with the Federal Constitutional Court (no. 2 BvE 11/12), seeking a declaration that it was not unconstitutional within the meaning of Article 21 § 2 of the Basic Law. In the alternative (hilfsweise), it requested to find that the defendants violated its rights under Article 21 § 1 first sentence of the Basic Law by constantly stating that the applicant was unconstitutional, thereby causing the effects of de facto ban, without initiating party ban proceedings. In the further alternative (höchst hilfsweise) it requested to find that its rights were violated because there was no remedy allowing political parties to ascertain their constitutionality before the Federal Constitutional Court. 7. In support of its application, the applicant cited leading politicians –Prime Ministers and Ministers of the Interior of different Länder and members of the Federal Parliament – who had stated that the NPD was unconstitutional. The applicant alleged that its members who were working in the public sector had been subject to disciplinary measures or even been excluded from public service because of their affiliation with the party. It submitted that its candidates were not allowed to stand at municipal elections in the Land of Mecklenburg-West Pomerania and in the Land of Thuringia. The applicant submitted that it had made 328 unsuccessful requests to open accounts at public and private banks and that it had to pursue legal action against public banks in 35 cases. It further submitted that it was required to engage in proceedings before the administrative courts almost every time it intended to rent communal space for its events, because the towns had refused to let it use their premises due to a fear of acts by “the extreme left”. The applicant added that it did no longer find companies willing to provide liability insurance for its events, which was a prerequisite for renting communal space. It complained that its authorised demonstrations were regularly disturbed by opponents and that the police did not sufficiently protect these demonstrations. It pointed out that its members were regularly victims of criminal offences committed by “the extreme left”. The applicant moreover complained that public funds allocated to projects against “the extreme right” referred to it as a party of the extreme right and concluded that these funds were used to combat it. Finally, it claimed that the media did not sufficiently give it the floor. 8. The applicant maintained that the remedies available before domestic courts were not sufficient to protect its interests, given the extent of discrimination and restrictive measures it was confronted with on the one hand and its limited resources on the other hand. It considered that the constant “stigmatisation” and perpetual debate about its potential ban amounted to a “de facto ban”. It submitted that the defendants were, by stigmatising the applicant and by calling on the public to “combat against the far right” (Kampf gegen Rechts), also at the origin of and hence responsible for the discriminatory acts and criminal offences which private actors committed against the applicant and its members. 9. On 20 February 2013 the Federal Constitutional Court dismissed the application. The decision was served on the applicant on 6 March 2013. 10. The Federal Constitutional Court held that the application for a declaration that the applicant was not unconstitutional was inadmissible. It stated that Section 43 § 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz, see relevant domestic law and practice, paragraph 16) provided that only the Federal Parliament, the Federal Council and the Federal Government could apply for decision on whether a political party was unconstitutional. Domestic law did not provide that a political party could have recourse to the Federal Constitutional Court to have its constitutionality ascertained. It observed that this did not amount to a gap in legal protection, since the applicant and its members could pursue legal action before administrative, civil and criminal courts whenever its or their rights were infringed. 11. In response to the applicant’s argument that it did not have the resources to pursue legal action in each and every case, the Federal Constitutional Court stated that this posed a practical challenge that could be overcome with reasonable efforts. It emphasised that a political party which participated in forming public opinion had to accept being criticised as “hostile to the constitution” (verfassungsfeindlich) within the limits of freedom of expression. Where public authorities engaged in political debate, they had to respect the limits set by the Basic Law, which were subject to judicial review. The Federal Constitutional Court considered that a discussion whether or not to initiate party ban proceedings was lawful as long as it contributed to the decision-making process and was not aimed at discriminating against the party concerned. It noted that there were remedies which allowed the applicant to challenge the allegation that it was unconstitutional, such as remedies against the surveillance by intelligence services. It observed that the same held true for the applicant’s members with regard to their employment in public service and added that a lack of success in the respective court proceedings did not mean that there was a gap in legal protection. 12. The Federal Constitutional Court further found that the application, lodged in the alternative, to find that the defendants violated the applicant’s rights under Article 21 § 1 first sentence of the Basic Law by constantly stating that the applicant was unconstitutional, thereby causing the effects of de facto ban, without initiating party ban proceedings, was also inadmissible. It found that, even though this application could in principle be the subject of a “dispute between constitutional organs” (Organstreitverfahren, see relevant domestic law and practice, paragraphs 15, 17 and 18), it was not sufficiently substantiated. It noted that the statements and measures cited by the applicant were not made on behalf of the Federal Parliament, the Federal Council or the Federal Government, but rather by some of their members only. Therefore, they could not be attributed to these organs. Nor did the applicant substantiate that they infringed, or were about to infringe, its status as a political party. 13. Finally, the Federal Constitutional Court observed that the application, lodged in the further alternative, to find that the applicant’s rights were violated because there was no remedy allowing political parties to ascertain their constitutionality before the Federal Constitutional Court was manifestly ill-founded. It argued that there was no gap in legal protection for the reasons set out in relation to the main application (see paragraphs 10 and 11), which precluded a violation of the applicant’s rights. 14. On 3 December 2013 the Federal Council lodged a new application for the ban of the applicant pursuant to Article 21 § 2 of the Basic Law with the Federal Constitutional Court (no. 2 BvB 1/13). The proceedings are pending. 15. The relevant provisions of the Basic Law are worded as follows: “(1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds. (2) Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be unconstitutional. The Federal Constitutional Court shall determine the question of unconstitutionality. (...)” “(1) The Federal Constitutional Court shall rule: 1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body; (...)” 16. The relevant regulations governing the declaration of unconstitutionality of a political party are contained in the Federal Constitutional Courts Act and are worded as follows: “(1) The Bundestag, the Bundesrat, or the Federal Government may apply for a decision on whether a political party is unconstitutional (Article 21 § 2 of the Basic Law). (2) The government of a Land may make an application only against such political parties whose organisational extent is limited to that Land’s territory.” “(1) If the application proves to be well-founded, the Federal Constitutional Court shall declare that the political party is unconstitutional. (2) The declaration may be limited to a legally or organisationally independent section of a political party. (3) The declaration shall be accompanied by the dissolution of the political party or of its independent section, as well as by the prohibition of establishing substitute organisations. In this case, the Federal Constitutional Court may also declare that the property of the political party or its independent section be confiscated in favour of the Federation or the Land to be used for public benefit.” 17. In relation to “disputes between constitutional organs”, the relevant provisions are worded as follows: “The Federal Constitutional Court shall decide (...) 5. on the interpretation of the Basic Law in the event of disputes concerning the extent of the rights and obligations of one of the highest federal organs or of other parties who have been vested with own rights by the Basic Law or by the rules of procedure of one of the highest federal organs (Art. 93 § 1 no. 1 of the Basic Law) (...).” “Applicants and respondents may only be: the Federal President, the Bundestag, the Bundesrat, the Federal Government, and such parts of these organs that are vested with own rights pursuant to the Basic Law or the rules of procedure of the Bundestag and Bundesrat.” “(1) The application shall only be admissible if the applicant asserts that an act or omission of the respondent violated or directly threatened the rights and obligations awarded to the applicant or to the applicant’s organ by the Basic Law. (2) The application shall state the provision of the Basic Law which was violated by the respondent’s contested act or omission. (3) The application must be filed within six months after the applicant gained knowledge of the contested act or omission.” 18. It is established case-law of the Federal Constitutional Court that political parties are organs vested with own rights pursuant to the Basic Law in the meaning of Article 93 § 1 no. 1 of the Basic Law and can assert their rights by way of a dispute between constitutional organs (decision of 20 July 1954, no. 1 PBvU 1/54, which has been consistently confirmed since, see, among many others, judgment of 29 September 1990, nos. 2 BvE1, 3, 4/90, 2 BvR 1247/90).
| 0 |
test
|
001-141838
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,014 |
SINFIELD AND OTHERS v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
|
1. The 707 applicants are either former servicemen or personal representatives or dependents of deceased former servicemen. A list of the applicants is set out in the appendix. They are represented before the Court by Mr N. Sampson, a solicitor practising in London. 2. For ease of reference, the term “applicants” in the following statement of facts should be taken to mean both the present applicants and the deceased former servicemen who are represented by their estates. 3. Between 1952 and 1958 the United Kingdom carried out a series of atmospheric tests of thermonuclear devices in the region of the Pacific Ocean. All three branches of the armed forces took part, involving some 22,000 servicemen, including the applicants. Some contemporaneous monitoring was carried out of radiation levels to which individual servicemen were exposed at the moment of detonation, but no monitoring took place of subsequent exposure to radiation in the form of fallout through ingestion of contaminated water or fish, for example. 4. In medical and scientific circles it was known since the 1940s that exposure to ionising radiation was capable of causing many forms of cancer, although the risk was generally associated with fairly high levels of exposure caused by “prompt” or “instantaneous” radiation. Subsequently, the effects of lower levels of radiation caused by fallout were studied. In the United Kingdom, public interest in the possibility that British servicemen might have suffered ill effects as the result of exposure during the nuclear tests was aroused following a series of items on a BBC television news programme broadcast in December 1982 and early 1983. These ventilated the possibility that test participants were suffering unusual levels of ill health of various forms. This interest appears to have stemmed from publicity in Scotland generated by concerns raised in the Daily Record by one of the applicants, Mr Kenneth McGinley. Mr McGinley publicly claimed that he was one of a number of nuclear test veterans who had suffered ill health as the result of exposure to radiation. 5. Soon after this publicity, a group of veterans, all of whom had served in the Pacific during the tests, formed the British Nuclear Test Veterans Association (BNTVA). Mr McGinley was their Chairman. Their objectives were to gather information about their exposure to radiation and its likely effects, to press for further research and to seek financial recompense for any harm suffered, either by claiming for war pensions or by making claims for damages. 6. As a result of the publicity described above, in January 1983, questions were raised in Parliament about the possibility that the veterans had been injured by exposure to radiation. The attitude of the Ministry of Defence (MOD) was, and is, that the men had not been exposed to excessive levels of ionising radiation. However, the Government commissioned a health survey of the men involved in the tests, to be conducted by the National Radiological Protection Board (NRPB). 7. The survey sought to identify all the men who had been present in the area at the time of the tests and to compare them with a similar sized cohort of men of similar backgrounds who had not attended the tests. About 22,000 nuclear test veterans were identified. The survey examined death registration documents for causes of death and also the incidence of cancer using the National Health Service Cancer Register. The report, issued in November 1988, disclosed that, among the veterans, there was no excess mortality either from all causes or from all cancers. However, there was a significantly higher level of deaths from leukaemia and multiple myeloma among the participants than among the controls. The report expressed the view that this was probably a chance result, to be explained by the very low level of deaths from these causes among the control group. When the deaths among the participants were compared with the national mortality figures for those conditions, the excess among the participants was only slight. It was concluded that participation in the nuclear tests was not associated with any detectable effect on expectation of life or the risk of developing cancer. It added: “that there may well have been small hazards of leukaemia and multiple myeloma associated with participation in the programme, but their existence is certainly not proven and further research is desirable”. The NRPB carried out two more surveys and reported in 1993 and 2003, but the later conclusions did not differ significantly from the earlier ones. The methodology and conclusions of all three surveys were criticised by the BNTVA and subsequently by the claimants in the group action, principally on the ground that they looked only at deceased, but not living, veterans. 8. Meanwhile, in 1985 an action for damages was begun by a veteran named Melvyn Pearce. He developed a lymphoma in 1978 and alleged that it had been caused by exposure to ionising radiation during the tests. The allegations of negligence in Pearce v. The Secretary of State for Defence and Ministry of Defence [1988] AC 755 were based on both exposure to prompt high dose radiation (that is, as a result of proximate presence at one or more of the nuclear tests) and delayed, low dose, exposure (as a consequence of ingesting radionuclides from fallout while swimming in contaminated waters or eating contaminated fish). It was also alleged that the MOD had deliberately exposed the men to radiation as an experiment to see what the effects were. The MOD denied liability and sought to rely on immunity from suit provided by section 10 of the Crown Proceedings Act 1947. It did not plead the Limitation Act. The issue of immunity was treated as a preliminary issue and in due course went to the House of Lords which held in the Mr Pearce’s favour, leaving him free to proceed to trial. However, soon afterwards, the claim was discontinued, because the Mr Pearce’s team concluded that it could not prove a causal link between the exposure to radiation and the development of cancer. 9. In 2008, the results of a study carried out by a team of scientists led by Dr R.E. Rowland of the New Zealand Institute of Molecular Biosciences were published as “Elevated chromosome translocation frequencies in New Zealand nuclear test veterans” (“the Rowland Study”). Using a technique called “mFISH”, which involved “painting” chromosomes enabling breaks and rearrangements to become visible, the team had examined the damage to the chromosomes of 49 New Zealand veterans who had served on board two frigates positioned between 20 and 150 nautical miles upwind from certain explosions which were part of the United Kingdom nuclear test programme. The Rowland study found that the 49 crew members examined had on average three times as many chromosomal aberrations than 50 controls who had not taken part in the tests. This finding was regarded as significant and probably attributable to long term genetic damage resulting from ionising radiation during and after the nuclear test. An attempt was made to estimate the radiation dose from the level of translocations. The median dose for the veterans was estimated to be far in excess of the median estimated dose of the controls. However, the study made no claim for any correlation between the raised levels of chromosomal aberrations and the incidence of any illness. 10. Meanwhile, in 2002, several veterans instructed two different firms of solicitors with a view to bringing claims for damages. Legal Aid was granted for the investigation of the claims. On 23 December 2004 a claim form was issued in respect of a group action brought by or on behalf of 1,011 former servicemen, including the applicants, against the MOD. Damages were sought in respect of injury, disability or death alleged to have occurred in consequence of the exposure of the former servicemen to ionising radiation as a result of their presence near, or involvement in the aftermath of, the nuclear tests. 11. In August 2005 public funding was withdrawn from the claimants on the ground that the legal merits were insufficient to justify the case being pursued at public expense. It was agreed between the parties to stay the proceedings, until the Rowland study had been published. The stay was lifted on 1 September 2006 and a different firm of solicitors took over, after arrangements had been made for the matter to proceed on a conditional fee basis. Under the conditional fee arrangement, the solicitors would be paid only if the claimants were successful. The claimants purchased an insurance policy, known as “ATE (after the event) insurance”, to cover the MOD’s costs, should they be ordered against them. 12. On 29 December 2006 Master Particulars of Claim, containing more detailed allegations, were served. It was alleged that the nuclear tests had been negligently planned and executed, in that, inter alia, protective clothing and equipment was not supplied, to prevent the exposure of the servicemen to ionising radiation both at the time of each blast and subsequently, in the form of fall-out, and steps were not taken to prevent servicemen from swimming in contaminated water and eating contaminated seafood in the aftermath of the tests. In addition, it was alleged that the authorities failed properly to monitor the extent to which each serviceman was exposed to ionising radiation, both during and after each test. The claimants further claimed that they had suffered a variety of illnesses known to result from radiation exposure and relied in particular on the mFISH methodology, used by the Rowland study (see paragraph 10 above), as a reliable and specific indicator of genetic damage caused by exposure to ionising radiation. The Master Particulars of Claim included a partial list of the illnesses which the claimants, as a group, contended to have suffered as a result of their exposure to radiation, but individual medical reports were not included. In connection with the question whether the claims were timebarred, the applicants contended that it was only with the availability of the results of the Rowland study in 2007 that “scientific evidence became available that indicated that the conditions suffered by the veterans were attributable to exposure during the tests”. Furthermore, they argued that where delay had occurred, which in most cases was not great, this was explicable by funding difficulties and the MOD’s attitude of denial, and that the cases should be allowed to proceed under Section 33 of the Limitation Act 1980 (“the 1980 Act”: see paragraphs 27-29 below). 13. The MOD denied liability, alleging that all proper precautions were taken to protect service personnel from exposure to ionising radiation and that, in most cases, the actual exposure of the men was no more than the background radiation they would have experienced in the United Kingdom. In addition, the MOD contended that the claimants would be unable to prove, individually or as a group, that their illnesses were attributable to their presence during the nuclear tests, rather than other factors. The MOD also argued that the claims were time-barred under the terms of the 1980 Act, which requires a claimant to institute proceedings within three years of the date on which the cause of action accrued or “the date of knowledge (if later) of the person injured”. It was contended on behalf of the Ministry of Defence that the claimants had relevant knowledge prior to 23 December 2001 (that is, before the three-year period preceding the institution of proceedings). In relation to the discretionary power under section 33 of the 1980 Act, it was argued that the passage of time since the tests had eroded the cogency of the evidence and that the overall merits of the claim were weak, particularly in relation to causation. 14. A group litigation order was made, which decided inter alia that the issue of limitation should be tried as a preliminary point. On the agreement of the parties, five test cases were selected by each side for the purpose of the preliminary hearing to determine the limitation issues. On 10 April 2008 the MOD informed the veterans’ solicitor that it intended to serve expert evidence going to the weakness of the claims on causation. The following day the MOD was granted leave to serve limited expert evidence in the fields of radiobiology, epidemiology and nuclear physics. The applicants were subsequently granted leave to serve expert evidence in the same disciplines. The selection of the test cases was completed by August 2008. Disclosure was provided by the parties, but was limited to documents relevant to the limitation issues only. 15. The hearing took place over ten days in January and February 2009 before Foskett J, who heard and considered expert evidence in relation to the development of scientific knowledge of the effects of ionising radiation as well as evidence from the claimants about their knowledge and belief about the cause of their injuries. He delivered his judgment on 5 June 2009. Although the claimants had complained in their Particulars of Claim of exposure to prompt radiation, it was agreed early in the trial that none of the veterans had been sufficiently close to the explosions to have been affected by prompt radiation. 16. At the hearing, without issuing any application, the MOD invited the judge to strike out the claims or, in the alternative, to give summary judgment in favour of the MOD, on the ground that the claims had no prospect of success. Foskett J declined to do so, ruling that these requests were premature, since causation was essentially a question of fact and since the facts, dependent on lay and expert evidence, had not been established at the current stage of the proceedings. Moreover, he did not accept that the claimants’ case on causation was so weak that the claims were bound to fail. However, he accepted that, if any of the cases were to clear the limitation hurdle and proceed to trial, there was a risk that they might subsequently be abandoned because of difficulties in establishing causation, and stated that, if invited to do so by the defendant, he would consider how the Ministry of Defence could be protected in terms of costs and other adverse consequences should this occur. 17. On the limitation issue, the judge considered himself bound by previous case-law to hold that “knowledge” within the meaning of section 14(1)(b) of the 1980 Act in effect meant “belief”, so that each claimant acquired the relevant knowledge at the moment in time when he formed the belief that his injury was capable of having been caused by exposure to radiation. Following this approach, he examined each case to determine the moment at which the veteran had manifested not merely suspicion but a firm belief that his illness was attributable to exposure to radiation. He found that five of the lead claimants had not had knowledge of their claims, within the meaning of section 14 of the 1980 Act, until less than three years before they began proceedings, so they were entitled to proceed with their claims as of right. He further considered that the claims of the other five test claimants were prima facie statute barred, but exercised his discretion under section 33 of the 1980 Act so as to allow the actions to proceed. In particular, he emphasised that the need to avoid an apparent injustice, both in the minds of the claimants and of the general public, was a weighty factor to be taken into account. The judge awarded the claimants their costs, estimated at GBP 11.8 million, to be paid by the MOD. 18. The MOD appealed to the Court of Appeal, which gave judgment on 19 November 2010 (Ministry of Defence v. A.B. and Others [2010] EWCA Civ 1317). The Court of Appeal upheld the trial judge’s refusal to strike out the case, but on different grounds. They considered that the pleadings disclosed reasonable grounds for bringing the case and that as there had been no abuse of process nor failure to comply with procedural rules, it would be wholly inappropriate to strike the cases out. The Court of Appeal considered that the MOD’s application for summary judgment should be rejected on procedural grounds, because no formal notice had been given. 19. With regard to the limitation issues, the Court of Appeal applied broadly the same test as Foskett J, although it considered that in relation to nine of the ten test cases, he had applied too high a threshold. In the Court of Appeal’s view, only one case, that of Mr Sinfield (the first applicant’s husband), who was diagnosed with non-Hodgkin’s lymphoma in October 2005, had been brought in time. In relation to the discretion under section 33, the Court of Appeal held that the trial judge had erred in law in holding that the need to avoid an apparent injustice, both in the minds of the claimants and of the newspaper-reading public, was a weighty factor to be taken into account. The court further held that the broad merits test should be a prominent consideration when deciding whether or not to exercise the discretion. The resource implications both for the MOD and Treasury solicitors and for the courts would be enormous, and it would be inappropriate to allow an expensive and resource-consuming trial to take place if the prospects for the claimants’ success were slight. On the other hand, if the prospects of success “were even reasonable, those resource considerations fade into relative insignificance”. The Court of Appeal next examined the likely strength of the applicants’ case on causation. They observed that the burden of proving that the alleged tort caused the alleged injury lay on the claimant, on the balance of probabilities. In order to determine whether the section 33 discretion should be exercised, the court had to assess the broad merits of the material put before. The claimants had not produced evidence of how they intended to estimate the doses of radiation to which they were exposed and the court considered that the best they could hope for would be to show low but significant exposure. In addition, on the state of the evidence before the court, there was no prospect that the claimants would be able to satisfy the “but for” test of causation by showing that their illnesses were at least twice as likely to have been caused by their exposure to radiation during the tests than by other causes, for example, smoking. Nor was there any possibility, on the evidence as it stood, that the claimants would be able to rely on the synergistic inter-action of two different causative agents. The foundation of medical evidence had not been laid. The court therefore concluded that the claimants’ case on causation faced very great difficulties. They accepted that there was a theoretical possibility that further evidence might become available if the case were permitted to proceed, but nonetheless underlined that they had to apply the broad merits test under section 33 on the basis of the evidence which the claimants had put before the court. When considering, in relation to each of the nine time-barred test cases, whether to exercise its discretion under section 33, the Court of Appeal found that the merits of each case were weak on causation and that the prospects of success were therefore weak. In addition, the delay in bringing the claims would be prejudicial to the MOD, through the loss of available witnesses. In consequence, the court declined to exercise its discretion to allow the time-barred cases to proceed. 20. The Court of Appeal concluded with the following words: “We recognise that these decisions will come as a great disappointment to the claimants and their advisers. We readily acknowledge the strength of feeling and conviction held by many of the claimants that they have been damaged by the Ministry of Defence in the service of their country. The problem is that the common law of this country requires that, before damages can be awarded, a claimant must prove not only that the defendant has breached its duty of care but also that that breach of duty has, on the balance of probabilities, caused the injury of which the claimant complains. These can be heavy burdens to discharge. If we look back to 1985, Melvyn Pearce won a significant victory in the House of Lords, which established that the MOD could not rely on the immunity of the Crown from suit. Yet, within a few months of that victory, Mr Pearce abandoned his claim because his advisers recognised that they could not satisfy the burden of proving that Mr Pearce’s cancer had probably been caused by radiation exposure; for his personal position, the victory was entirely pyrrhic. As we noted earlier, the abandonment of that case comprised a warning to those who wished to follow after. Causation would be a potentially difficult issue and would have to be addressed if any such actions were to have a prospect of success. Thus, it was no surprise that one of the first steps taken by [the solicitors] originally instructed by Mrs Brothers, was to seek evidence to establish causation (which was not forthcoming). Further, although the MOD raised the issue of causation both generically and, later, in the individual cases, no attempt was apparently made when the lead cases were identified to obtain specific evidence on this topic. It may be that it is not yet possible for a doctor to say that a condition such as cancer has probably been caused by radiation as opposed to any of the other possible causes but, until such evidence is available, claimants will face the difficulty which caused Mr Pearce to abandon his claim. We have no doubt that it will appear that the law is hard on people like these claimants who have given service to their country and may have suffered harm as a result. No doubt partly with this background in mind, Parliament has provided that servicemen who have been exposed to radiation which might have caused them injury will be entitled to a war pension. Of course, a war pension is not as financially beneficial as common law damages but it is some compensation. Of particular importance on this issue, on an application for a war pension, the burden of proving causation is reversed; thus, the MOD has to exclude the possibility that the applicant has been harmed by radiation. We cannot say that any of these claimants who have, so far, not been awarded pensions will succeed in their attempts to do so but their chances of success must be far greater with the MOD having to prove the absence of causation than they ever were while the claimants had to establish it.” 21. The claimants were ordered to pay 90% of the MOD’s costs of the first instance trial on the preliminary issues of limitation, and all of the MOD’s costs of the appeal. These costs, in excess of GBP 5.6 million, were paid by the applicants’ ATE insurers. 22. The nine lead claimants who had lost before the Court of Appeal appealed to the Supreme Court, which gave judgment on 14 March 2012 (Ministry of Defence v. A.B. and Others [2012] UKSC 9). The Supreme Court was divided by four judges to three as to the application of the 1980 Act in this case. The minority (Lord Phillips, Lady Hale and Lord Kerr) held that the Court of Appeal had confused knowledge with belief and that, although the claimants believed that their injuries were caused by exposure during the nuclear tests at the time they issued their claim, they lacked knowledge of attributability because at that time there was no available scientific evidence. The majority (Lords Wilson, Walker, Brown and Mance) agreed with the Court of Appeal that “knowledge” should be equated to belief held “with sufficient confidence to justify embarking on the preliminaries of the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence”. The majority found that each of the nine appellants had believed that his exposure to radiation had put his health at risk and, on becoming ill, had believed that his illness was attributable to his presence during the nuclear tests, on that each had attained the requisite state of knowledge more than three years before the commencement of proceedings. It was conceded before the Supreme Court by counsel for the claimants that they lacked evidence with which to establish a credible case that the injuries were caused by the tests. The majority also agreed with the Court of Appeal’s approach to the exercise of discretion under section 33 of the 1980 Act and upheld the refusal to allow the claims to proceed. 23. All members of the Supreme Court agreed that the claims had no real prospects of success. Lord Phillips observed that: “The current difficulties facing the veterans in relation to causation appear to me to be very great indeed. The Rowland report assists them a little but it does not have the significance that [their counsel] has sought to attach to it. The Rowland report shows that many of the New Zealand veterans had a raised incidence of chromosome translocation that suggested exposure to abnormal, albeit low level, fall-out radiation. But this was not true of all the veterans assayed. The assays of some show no abnormalities. This is no more than one would expect. Exposure to radiation results from inhalation or ingestion of fall-out. It may result from swallowing sea water while swimming or eating contaminated fish. Thus it can vary from one man to the next. The most that can be deduced from the Rowland report is that it is probable that individual veterans were exposed to low level fallout. There is currently no evidence that there is any correlation between the raised incidence of chromosome translocation of individual New Zealand veterans and the incidence of cancer or any of the other conditions of which the claimant veterans complain. ... The Rowland report results simply constitute a biomarker suggesting exposure to radiation. The most the veterans as a group are currently in a position to establish is that there is a possibility that some of them were exposed to a raised, albeit low level, of fall-out radiation and that this may have increased the risk of contracting some at least of the injuries in respect of which they claim. This falls well short of establishing causation according to the established principles of English law. ... For these reasons I do not believe that the veterans’ claims have a reasonable prospect of success.” Lord Wilson accepted that the Court of Appeal had wrongly elevated the issue of causation to be the determining factor under section 33, but nonetheless concluded: “It is undesirable that a court which conducts an inquiry into whether a claim is time-barred should, even at the stage when it considers its power under section 33, have detailed regard to the evidence with which the claimant aspires to prove his case at trial. But the ten claims placed before Foskett J were of particular complexity; and the nature of the submissions made to him on behalf of the appellants about the meaning of knowledge for the purpose of section 14(1) of the 1980 Act led him to undertake, over ten days of hearing and expressed in 885 paragraphs of judgment, a microscopic survey of the written evidence available to the parties, in particular to the appellants, in relation to causation. At all events the result was to yield to the Court of Appeal an unusual advantage, namely a mass of material which enabled it with rare confidence to assess the appellants’ prospects of success. It expressed its conclusions in terms of the ‘very great difficulties’ which confronted the appellants in that regard. But, in line with the realistic concession made by [counsel for the appellants] in this court, the fact is that, for the reasons set out by Lord Phillips ... their claims have no real prospect of success. In my view it would have been absurd for the Court of Appeal to have exercised the discretion to disapply section 11 so as to allow the appellants to proceed in circumstances in which the next stage of the litigation would be likely to have been their failure to resist entry against them of summary judgment ...” 24. On 14 November 2012 the Supreme Court made an order relating to the costs of the appeal, which provided that the applicants should pay the MOD’s costs of the appeal and that the stay of execution in respect of the previous costs orders should be removed. 25. Following the above proceedings, one of the applicants (Ms Sinfield) had an absolute right to go forward to trial, since her case had not been found to be time-barred. The other applicants (whose cases had been stayed while the ten test cases went ahead) had to consider whether, in the light of the Supreme Court’s judgment, their claims were time-barred. A certain number of the applicants’ claims were not time-barred, because, like Mr Sinfield, they had become ill within three years of the commencement of proceedings. This group of applicants therefore wished to proceed to trial. The other applicants, whose claims were prima facie time-barred, took the view that much of the assessment of the Supreme Court, in relation to the question whether to exercise the discretion under section 33 of the 1980 Act, had been concerned with the difficulties that the claimants would face in establishing causation. However, the applicants considered that there was increasing evidence establishing that the illnesses they suffered were caused by exposure during the tests. This group of applicants also wished to proceed to trial. 26. Under the terms of the group litigation order, the MOD’s costs of the preliminary limitation proceedings were paid by all the claimants within the group, in equal proportions, whether or not their claims had been brought out of time. In a letter dated 12 September 2012, the MOD insisted that, before pursuing further litigation, the applicants had to obtain ATE insurance to cover them for the MOD’s costs should their claims fail. It proved impossible for the applicants to obtain such insurance, since the ATE insurers had already made large payments following the costs orders made by the Court of Appeal and Supreme Court. Legal aid, which was withdrawn in 2005, will not be re-awarded. None of the applicants is in a position to contribute to the funding of the litigation on a private basis. In consequence, none of the applicants’ claims proceeded to trial. 27. The background to the adoption of the Limitation Act 1980 (“the 1980 Act”) is set out in detail in the Court’s judgment in Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 28-37, Reports of Judgments and Decisions 1996IV. 28. Section 11 of the 1980 Act deals with special time limits for actions in respect of personal injuries and, in its relevant parts, reads as follows: “11 (1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. ... ... (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below. (4) Except where subsection (5) below applies, the period applicable is three years from— (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured...” 29. Section 33 of the 1980 Act further provides for discretionary exclusion of the time limit for actions in respect of personal injuries or death in the following terms: “(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which— (a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. (4) In a case where the person injured died when, because of section 11, he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased. (5) In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit. (6) A direction by the court disapplying the provisions of section 12(1) shall operate to disapply the provisions to the same effect in section 1(1) of the Fatal Accidents Act 1976...”
| 0 |
test
|
001-182170
|
ENG
|
MKD
|
CHAMBER
| 2,018 |
CASE OF BEKTASHI COMMUNITY AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 3 |
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) read in the light of Article 9 - (Art. 9) Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
|
6. The Bektashi Order has existed and practised its religion in the respondent State for many centuries. The applicant association’s headquarters were at the “Teke Sersem Ali-Harabati Baba” in Tetovo. Until the applicant association was refused registration in 2010 (see paragraphs 23-33 below), it practised its religion in full compliance with the relevant legislation applicable at the time. In the past, it was also known under the name “Islamic Bektashi Community”. 7. On 31 July 1997 the Religious Communities and Groups Act (“the 1997 Act”) entered into force. It repealed the Legal Status of Religious Communities Act 1977 (“the 1977 Act”) and provided that the Commission for Religious Communities and Groups (Комисија за односи со верските заедници и религиозните групи – “the Commission”) would be responsible for dealing with religious matters, which up until then had been the responsibility of the Ministry of the Interior (“the Ministry”). 8. On 25 August 1997 the Commission requested that the applicant association submit a copy of its application (копија од пријавата) to be listed in the register of the Ministry and the related certificate of registration (потврда за постојано пријавување) so that it could “transfer (into its register) the religious communities and groups of which the Ministry of the Interior had been notified (пријавени)” (section 35 of the 1997 Act, see paragraph 37 below). 9. On 4 September 1997 the applicant association (under the name “Islamic Bektashi Community” in Tetovo) contacted the Ministry, seeking a copy of all relevant documents related to its application submitted in 1993. According to the applicant association, on 16 September 1997 it forwarded to the Commission all the documents obtained from the Ministry save for the certificate, which had never been issued. 10. At the request of the applicant association, on 1 March 1999 the Ministry issued a certificate (потврда) attesting that on 17 February 1993 the applicant association (under the name “Islamic Bektashi Community” in Tetovo) had submitted an “application for registration” (барање за регистрација) and other relevant documents. On 5 April 1999 the applicant association forwarded the certificate to the Commission. No information was provided as to the follow-up procedure, if any, concerning the Commission’s request for the applicant association to be registered under section 35 of the 1997 Act. 11. On 23 June 2000 the Commission issued a certificate (“the 2000 certificate”), attesting that on 13 June 2000 the applicant association had filed “an application (пријава) in accordance with the 1997 Act”. The certificate further stated: “Since the statutory conditions are met, the Bektashi Community of the Republic of Macedonia is listed (пријавена).” 12. By a decision of 18 July 2000, the State Statistics Office specified the applicant association’s main activities (“the activities of religious organisations”), its headquarters (the “Arabati Baba” site); and attributed corresponding indexes and business codes. 13. In a letter of 13 June 2002 sent to a trial court regarding unrelated proceedings, the Commission confirmed that “the Bektashi Community of the Republic of Macedonia [had been] registered (регистрирана) ...” 14. In 2003 a local non-governmental organisation (“the Macedonian Centre for International Cooperation”) published the “Directory of Religious Communities in Macedonia”, which included the religious entities recorded in the Commission’s register. The applicant association was listed on the basis of the 2000 certificate. 15. On 20 February 2007 the Commission authorised the first applicant to carry out “religious ceremonies and rituals on authorised premises of the Bektashi Community of the Republic of Macedonia”. 16. On 28 September 2007 the Legal Status of Churches, Religious Communities and Religious Groups Act 2007 (“the 2007 Act”) entered into force. It came into operation on 1 May 2008 (section 36). It specified that the Skopje Court of First Instance (“the registration court”) would be competent to deal with religious matters (section 11). It also provided that the Commission would transfer all documents regarding the existing religious entities recorded in its register to the registration court. All religious organisations registered by the Commission up until 1998 could retain their existing legal personality and status. 17. On 10 June 2008 the applicant association, represented by a local lawyer, requested information from the Commission about its status. In reply the Commission stated that it had only been required to transfer to the registration court information regarding existing religious communities registered up until 1998. Since it had only been notified about the applicant association in 2000, the latter should have made an application for reregistration in the Single Court Register (“the court register”) in accordance with the 2007 Act. 18. On 4 June 2009 the applicant association requested, under section 35 of the 2007 Act, that the registration court recognise its continuing legal status and record it in the court register. 19. On 2 October 2009 the registration court dismissed the applicant association’s request. Referring to section 35(1) of the 1997 Act, it held that “[the Commission] had been obliged (должнa) to transfer to its register the religious communities and groups of which the Ministry had been notified up until the 1997 Act had entered into force. However, since the applicant association had not given notice to the Ministry, at the time, it had not been transferred to the Commission’s records, as provided for in that provision.” 20. It further established that in June 2000 the applicant association had given notice to the Commission, which the latter had acknowledged with the 2000 certificate. That practice had been in compliance with decision U.br.223/97 of December 1998 (see paragraph 42 below), in which the Constitutional Court had declared unconstitutional the statutory provisions which had provided for registration of new religious entities conferring on them legal status. 21. The court also established that the applicant association had never been recorded (запишан) and registered (регистрирана) by the Commission either before 1998, as required under section 35(2) of the 2007 Act, or up until the 2007 Act had entered into force. The applicant association had only given notice (пријавена) to the Commission in 2000. Consequently, the Commission had not been required, as specified in section 35(1) of the 2007 Act, to transfer the data “recorded in its register” to the registration court. That requirement concerned only registered religious organisations and not entities which were listed by the Commission. The court concluded that the applicant association had never obtained the legal status it sought to have recognised in the request. 22. On 18 February 2010 the Skopje Court of Appeal (“the Court of Appeal”) dismissed an appeal by the applicant association and upheld the established facts and reasoning given by the registration court. 23. On 22 November 2010 the applicant association, represented by local lawyers authorised to act on its behalf by the second applicant, filed an application for registration in the court register as “Bektashi Religious Community of the Republic of Macedonia”. It also enclosed several documents, including a description of the doctrinal sources. On 30 November 2010 the registration court requested further documents to complete the application. The applicant association submitted the requested documents. 24. On 20 December 2010 the court refused to register the applicant association on the following grounds: (a) the name “Bektashi” had already been used by another religious entity registered in the court register; (b) the doctrinal sources were the same as the doctrinal sources of another already registered religious entity; and (c) the applicant association had not submitted proof of ownership of the “Arabati Baba” site in Tetovo, indicated as its headquarters in the application for registration. 25. The applicant association appealed against this decision and asked the Court of Appeal to hold a public hearing. 26. At a hearing held in private on 14 April 2011, the court allowed the applicant association’s appeal and quashed the lower court’s decision as it had not specified which registered religious entity used the name “Bektashi” or which statutory provision forbade the use of identical doctrinal sources by multiple religious communities and groups. Furthermore, there was no statutory provision under which an application for registration could be refused owing to lack of proof of ownership of the headquarters of a religious community. 27. On 27 May 2011 the registration court again refused to register the applicant association as its intended name contained the term “Bektashi”, which had already been used by another religious entity, namely the “Ehlibeyt Bektashi Religious Group of Macedonia” registered in the court register on 10 September 2010. The court stated that “the existing Act [did] not allow for the registration of a new religious entity under a name that [had] already been recorded in the register for another registered religious entity”. Furthermore, its doctrinal sources were no different from the doctrinal sources of the Islamic Religious Community, which had existed for centuries and which had been registered in the court register on 14 November 2008. As to the doctrinal sources as described by the applicant association, the court stated as follows: “... [they consist of] the Islamic religion and the teaching of the Holy Koran, which is supplemented and interpreted by the knowledge and practices of prophet Mohamed and Imam Ali, the Holy Ehlibeyt (the prophet’s family) and the Holy Journey of Haji Bektash Veli ... it is about the sources of the Islamic religion, for which there is already a registered religious community ... whose teaching includes the Koran and the practices of Mohamed Aleyhisselam. According to Islamic teaching, Ali was his son-in-law and a member of the family (or ehlibeyt), the fourth elected caliph who ruled the Islamic state, and Haji Bektash Veli was the founder of the Bektashi Order of Islam and one of the prominent Islamic philosophers. In other words, the doctrinal sources of [the applicant association] are not at all different from the doctrinal sources of the ... Islamic Religious Community ... In the court’s opinion, the doctrinal sources are to be regarded as official insignia of a church, religious community or group within the meaning of section 10(1) of the 2007 Act. It would be a violation of [that provision] if they did not differ i.e. did not have specific characteristics, elements that were different from the doctrinal sources of the teachings of an already registered [religious entity].” 28. In such circumstances, the court held that the “substantive conditions” for registration of the applicant association in the court register had not been fulfilled. Accordingly, it refused its application for registration under section 16 of the 2007 Act (see paragraph 38 below). 29. The applicant association challenged the grounds on which the registration court had based the refusal of registration. It argued that there was no other religious entity registered under the same name. In this connection, it submitted that there were six registered religious entities that contained the term “Christian” in their name and two registered entities that used the term “Islamic”. The intention of the 2007 Act was not to ban the use of terms that had a generic and not exclusive meaning. Otherwise, it would mean that the law would only allow the registration of one religious entity containing the term Christian, Islamic, Bektashi, Jewish, Tarikat, Buddhist, Zen or Zoroastric. It also argued that it had sought registration as a religious community, as opposed to “Ehlibeyt Bektashi”, which was registered as a religious group. Its intended name was substantially different from the name of that entity; it had existed for decades and centuries, as was evident from the directory and correspondence with various State institutions. As regards the doctrinal sources, it argued that they could not be regarded as official insignia within the meaning of section 10(1) of the 2007 Act. Doctrinal sources could be identical for multiple religious entities (as the Bible was common for Orthodox Christians and Catholics, and the Koran was common for the Islamic Religious Community, the Bektashi Order and Shia or Sunni Muslims). They were of an ideological nature and were not constant, nor could they be interpreted in that way. Official insignia concerned symbols (crosses, crescents, graphic symbols), a flag or a totem that represented something. In this connection, it stated that the interpretation which the court had given regarding its doctrinal sources, namely that they were identical to the doctrinal sources of all Islamic teaching, was wrong. The mere fact that the court had interpreted its doctrinal sources implied that the State was not separated from religion. Furthermore, if that interpretation had been based on some material, it had not been communicated to the applicant association. Nor had it been given the opportunity to present its views at a public hearing. In this connection, it requested that the Court of Appeal hold a public hearing. Lastly, it complained that the refusal of registration was discriminatory. 30. At a hearing held in private on 17 November 2011, the court dismissed the appeal and upheld the lower court’s decision. It held that although the intended name of the applicant association was not entirely identical to the name of the “Ehlibeyt Bektashi Religious Group of Macedonia”, it contained the term “Bektashi”, which was “decisive and represented a synonym for the religious entity”. Consequently, the registration of the applicant association could create confusion among the believers. The Court of Appeal made no mention as to the lower court’s findings regarding the doctrinal sources of the applicant association. It accordingly held that section 16 of the 2007 Act had been correctly applied. 31. On 20 February 2012 the applicant association and the second applicant (and two other individuals) lodged a constitutional appeal with the Constitutional Court complaining that they had been discriminated against contrary to Article 110 § 3 of the Constitution. They summarised the factual background described above and reiterated the arguments raised in the appeal against the court’s decision of 27 May 2011 (see paragraph 29 above). They complained that the use of the term “Bektashi” could not be exclusive (like the use of “Christian” and “Islamic”). Furthermore, the registration of the “Ehlibeyt Bektashi Religious Group of Macedonia” implied that the domestic authorities had implicitly accepted that the doctrinal sources of that religious group were allegedly identical to the teaching of the Islamic Religious Community. They requested that the Constitutional Court hold a public hearing (јавна расправа) in accordance with section 55 of the Rules of Procedure of the Constitutional Court (see paragraph 41 below). 32. At a hearing held on 20 November 2012 in the absence of the parties, the Constitutional Court dismissed the constitutional appeal. The relevant parts of its decision (U.br.24/12) read as follows: “... in the present case, the court considers that it should examine whether the refusal to register the Bektashi Religious Community violated freedom of religion and whether there are elements of discrimination on religious grounds. As regards the first part of the question and having regard to section 9 of the Legal Status of Churches, Religious Communities and Religious Groups Act, it appears that registration in the Single Court Register is a requirement for a religious entity to obtain legal status, but it is not a precondition for religious ceremonies, rituals and prayers, which believers ... can hold irrespective of whether they are organised as a registered religious legal entity. In the present case, having regard to the arguments put forward in the application and the established facts, it appears that the applicants, who define themselves as members of the Bektashi Community, have freely practised their religion for many years. They participate in public life, communicate with State bodies, and participate in religious gatherings and conferences. This leads to the conclusion that, although they are not formally registered under the [2007 Act], they can practise their religion freely and hold religious ceremonies in accordance with the Islamic religion, without any pressure or persecution. Consequently, the applicants’ freedom of religion has not been violated. In order to reply whether there are elements of discrimination in the dismissal of the application for registration of the Bektashi Religious Community, the Constitutional Court assesses whether the courts which decided in the registration proceedings ... gave sufficient reasons and whether the refusal to register the Bektashi Religious Community was based on relevant and reasonable grounds, namely whether the refusal of registration pursued a legitimate aim and whether there was a measure of proportionality between the means used and the aim pursued ...” 33. The court then referred to the grounds on which the registration court had based its decision and stated as follows: “... the [registration] court refused to register the [applicant association] on two grounds: (1) the intended name of the [applicant association] contained the term ‘Bektashi’ which had been incorporated into the name of an already registered religious entity, the ‘Ehlibeyt Bektashi Religious Group of Macedonia’ ... and (2) its doctrinal sources were the same as the doctrinal sources of an already registered religious entity, the Islamic Religious Community. The refusal to register the [applicant association] was based on grounds specified by law ... which, in the court’s view, was correctly applied. The [dismissal decision was based on] section 10(1) of [the 2007 Act] ... The Constitutional Court endorses the findings of the first-instance court that the name and the doctrinal sources are official insignia of a religious entity and distinctive elements through which it is identified and recognised by the public ... This particularly concerns smaller religious entities, namely [those] that ... manifest their distinctiveness through these two elements. Hence, equating the complainant [the applicant association] with another already registered religious entity can mislead the public, that is, it can confuse believers, which is at the same time itself a violation of their religious beliefs. It is not in dispute that the right of a religious entity to be registered should be secured in the context of freedom of religion, but nor should it violate the religious rights and feelings of the members of already registered religious entities. ... Each religious entity, church, religious community or group has the right to be distinct and be recognised in public by its identity. The absence of such [distinctiveness] or competition leads to confusion and misunderstanding by the public.[Such is the case] if there are multiple similar entities which are in competition, indefinite parallelism and division. The aim of the statutory requirement for the name and official insignia of religious entities, including doctrinal sources, not to be identical (неидентичност на името и официјалните обележја) ... is to prevent confusion among believers, incorrect perceptions, and lawful indefinite division of same-faith believers in several religious communities or entities. In the court’s view, these aims are legitimate and necessary in order to protect the freedoms and rights of others, to secure religious tolerance and prevent religious conflicts, as part of ensuring public safety, which is the responsibility of the State. In view of the foregoing, the Constitutional Court considers that the refusal to register the Bektashi Religious Community did not violate [the applicants’] freedom of religion of the applicants, nor were they discriminated against on the basis of their religion.”
| 1 |
test
|
001-169023
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,016 |
SAKHANOV v. RUSSIA
| 4 |
Inadmissible
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
1. The applicant, Mr Vitaliy Viktorovich Sakhanov, is a Russian national who was born in 1969 and lives in Moscow. 3. From 25 December 2009 to 20 December 2011 the applicant was the director general of a Russian limited liability company, OOO VA INVEST (hereinafter “the company”). 4. On 16 November 2012 the Commercial Court of Moscow declared the company bankrupt and opened liquidation proceedings. The proceedings were closed on 25 June 2013. 5. On 4 July 2013 the Commercial Court of Moscow considered a request from the Federal Tax Service to hold the applicant jointly liable for the company’s debts because of the company’s inability to cover all its debts with its remaining assets. Although duly notified, the applicant was not present at the hearing. 6. The Federal Tax Service’s request was granted and the applicant was found liable to pay 1,194,434 Russian rubles (RUB, approximately 27,732 euros). 7. On 27 August 2013 the company officially went into liquidation. 8. The applicant only became aware of the outcome of the proceedings against him in May 2014 when money was seized from his bank account. 9. The applicant appealed against the decision of the Commercial Court of Moscow of 4 July 2013. 10. The 9th Commercial Court of Appeal considered the appeal on the merits and on 6 November 2014 discontinued the appeal proceedings. With reference to the position of the Supreme Commercial Court, the appeal court concluded that it was impossible to adjudicate bankruptcy-related disputes concerning a company that had already gone into liquidation. The operative part of the appeal decision stated that the applicant could file a cassation appeal. 11. On 22 December 2014 the Commercial Court of Moscow Region dismissed a cassation appeal of the applicant. Reasoning adopted by the appeal court was upheld in full. The applicant did not appeal further against that decision. 12. In 2015 the applicant attempted to initiate a separate set of proceedings before the Constitutional Court of Russia, but his complaint was found inadmissible. 13. On 6 February 2014 several amendments to the Constitution introduced by the Constitutional Amendment Act No. 2-FKZ (Закон РФ о поправке к Конституции РФ от 05.02.2014 No. 2-ФКЗ) entered into force. Among other things, the amendments provided that the Supreme Commercial Court was to be abolished following a provisional period of six months and all its functions were to be gradually transferred to the Supreme Court. 14. With some material and procedural exceptions, final court decisions issued by a first-instance and appeal courts in commercial cases may be challenged by way of cassation appeal before a commercial court of a Circuit (Article 273 of the Code). 15. On 6 August 2014 amendments to the Code of Commercial Procedure (“the Code”) came into effect. The Supreme Court was empowered to consider cassation and supervisory review appeals against the final decisions of commercial courts. There were no specific transitional provisions. For a detailed description of the procedure in force before the amendments refer to Kovaleva and Others v. Russia ((dec.), no. 6025/09, 25 June 2009). 16. A cassation appeal may be lodged within two months after the last impugned court decision became final (Article 276 of the Code). A panel of judges examines a cassation appeal within two months (Articles 284-285 of the Code). The scope of review includes the issues of legality as raised by the parties and, proprio motu 17. Article 291.1 § 1 of the Code provides that final judicial decisions of commercial courts that have already been subjected to review in a cassation appeal by regional courts may be challenged further in cassation appeal proceedings before the Chamber of the Supreme Court. The proceedings may be taken by the parties to a case and by others whose rights or legal interests have been adversely affected by those decisions. 18. According to Article 291.2 § 1 cassation appeals may be filed within two months of the date the last judicial decision in the case became legally binding. 19. Article 291.2 § 2 sets out that the deadline for submitting a cassation appeal may be extended in exceptional circumstances at the request of the appellant. An extension, however, is only possible if the request is submitted either by a party to the proceedings within six months of the date the last judicial decision in the case became legally binding, or by a third party affected by the case within six months of the date he or she became aware of a violation of his or her rights. 20. Article 291.6 §§ 1 and 7 provide that the admissibility of a cassation appeal is considered by a single judge of the Supreme Court. The judge can either find the cassation appeal inadmissible or refer it to the Chamber of the Supreme Court for consideration. 21. According to Article 291.7 §§ 1 and 2 the admissibility of a cassation appeal is to be considered within two months if the case file has not been requested from the lower court, and within three months if the file has been requested. That time-limit excludes the period between the request for the case file and its receipt. The time-limits may be extended by two months by the President of the Supreme Court or his or her deputy. 22. Article 291.12 § 1 states that the Chamber of the Supreme Court is to examine the case within two months of the date of the admissibility decision. 23. Article 291.14 § 1 provides that following examination of the case, the Chamber of the Supreme Court may, among other things, quash wholly or in part one or all of the judgments previously delivered in the case by the first-instance, appeal or cassation courts and remit the case for reconsideration by any of those courts. 24. Chapter 26 of the Code provided that final judgments could be challenged by way of supervisory review before the Supreme Commercial Court of Russia (see further Kovaleva and Others v. Russia (dec.), cited above). When the Supreme Commercial Court of Russia ceased to exist, the review of final judgments in commercial cases was assigned to the Supreme Court of Russia according to the rules of new Chapter 36.1 of the Code. 25. A newly introduced chapter, Chapter 36.1, provides that the Presidium of the Supreme Court of the Russian Federation can consider applications from parties for supervisory review of binding judgments issued by lower judicial instances. 26. According to Article 308.1 § 3 (3), in an ordinary civil case where the proceedings started at a first-instance commercial court, parties may lodge an application for supervisory review only if their case has previously been examined in cassation proceedings by the Chamber of the Supreme Court. Such applications may be brought within three months of the date on which the impugned decision became binding (Article 308.1 § 4). 27. According to Article 308.4 § 1 and 308.5 the admissibility of an application is decided by a single judge of the Supreme Court, who may dismiss the application or transfer it for examination by the Presidium. That decision must be taken within two months if the case file has not been requested and within three months if it has been requested. The time-limit excludes the period between the request for the case file and its receipt. 28. Article 308.4 § 7 provides that a decision by a single judge to dismiss an application may be overruled by the President or Deputy President of the Supreme Court. The Code contains no explicit time-limit for the exercise of that power. 29. Following examination of a case the Presidium of the Supreme Court may, in accordance with Article 308.11 § 1, uphold, vary or quash any of the judgments previously delivered in a case, be it by the first-instance, appeal or cassation courts. If it does so, the Presidium may adopt a new decision or send the case back for reconsideration. Article 308.8 provides that binding decisions may be quashed on supervisory review if they breach: (1) human rights and freedoms enshrined in the Constitution or principles of international law and international treaties to which the Russian Federation is a party; (2) the rights and legitimate interests of an undefined group of people or other public interests; (3) the uniformity of case-law. 30. Article 208.9 § 5 states that the Presidium of the Supreme Court is to examine cases within two months of the date of the admissibility decision.
| 0 |
test
|
001-174419
|
ENG
|
IRL
|
CHAMBER
| 2,017 |
CASE OF INDEPENDENT NEWSPAPERS (IRELAND) LIMITED v. IRELAND
| 3 |
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 - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Síofra O’Leary;Yonko Grozev
|
6. The applicant company is the publisher of an Irish daily newspaper, the Herald. At the time of the events giving rise to this case, the title of the newspaper was the Evening Herald. 7. Between 30 November and 17 December 2004, the Evening Herald, published a series of articles about the awarding of Government contracts to a public relations consultant, Ms L. The articles pointed out that she was a supporter of, and well acquainted with, a prominent political figure, Mr C., both of them coming from the same city. She had been hired as a consultant by the Office of Public Works beginning in November 2001, when Mr C. was the minister with responsibility for this department of Government. When he was appointed in mid-2002 to the more senior political post of Minister for the Environment, Heritage and Local Government, Ms L. was then hired as a consultant by that Government Department, and was still working for it at the time the articles appeared. 8. The Evening Herald called into question the manner in which the tendering procedure had been conducted, the qualifications of Ms L. for the work involved, the high level of remuneration she received, as well as the amount of work that was in fact done by Ms L. It referred to eight trips abroad on which Ms L. had been part of the ministerial entourage, in particular a trip to New York to attend a United Nations conference. The newspaper stated several times that the relevant United Nations department could find no trace of Mr C. having taken part in the conference, even though his Department maintained that he had attended it. A later article stated that the United Nations did in fact have a record of the Minister’s attendance. 9. The story was developed in eleven articles published over a period of two weeks in nine editions of the newspaper. It became headline news and formed the subject-matter of an editorial decrying apparent favouritism in the award of Government contracts and calling for an inquiry. 10. The articles referred to rumours of an intimate relationship between Mr C., who was at that time separated from his wife, and Ms L., who was married with two teenage children. There were also references to Ms L.’s attractive appearance and her lifestyle. Various photographs were included, including one that showed the two standing side by side in evening wear as if a couple. This image was obtained by altering the original photo, which contained four people. One of the front page articles was accompanied by a large photomontage containing the same image of Ms L. in evening wear, but modified to suggest that the skirt had a slit that reached almost to her hip. The montage showed her standing very close to the Minister, whose image had been taken from another photo, with the New York skyline behind them. The headline read “The Minister, [Ms L.] and the Mystery Meeting”. 11. The Supreme Court found that the articles complained of amounted to a serious and sustained attack on Ms. L.’s business and personal integrity and were part of a sustained campaign building up over a period of just two weeks. She had been accused of engaging in an adulterous relationship for the sake of obtaining lucrative contracts and at the end of that period, she had gone from a person who would not have been known to the general public at all to someone who was notorious (see further paragraphs 2333 below). 12. The issue of the contracts awarded to Ms L. was taken up by other parts of the Irish media, and led to questions in the Irish parliament (Dáil Éireann). A report issued in 2005 at the request of the then Prime Minister (Taoiseach) found that while there had been certain shortcomings in the way that the contracts had been awarded and in the monitoring and recording of the work done, there had not been any specific infringement of the relevant norms, guidelines or practices. 13. Ms L. sued the applicant company for defamation. The case was heard before a jury in the High Court over seven days in June 2009. The two issues put to the jury were whether the articles, as a whole, including the accompanying photographs, meant that Ms L. had an extra-marital affair with Mr C., and whether the last article in the series meant that Ms L. had travelled to New York at Government expense in the company of Mr C. for a United Nations conference, but that she had not in fact attended it. 14. In accordance with Irish law (see paragraphs 38-42 below for further details), the jury was directed that if it found in favour of Ms L. on either issue, or both, it should assess damages. 15. In his charge to the jury, the trial judge explained that in an action for defamation, damages serve three functions: to afford consolation for the distress caused by the defamatory statement; to repair the harm to reputation, including business reputation; and to vindicate the person’s reputation. He stated that the jurors could take account of Ms L.’s standing in society and in the business community, the nature of the libel (the insinuations that she had betrayed husband and family and that she had misused public funds), the mode and extent of publication (carried repeatedly in a widely-read daily newspaper), the absence of an apology, and the fact that the applicant company pleaded the defences of justification and fair comment throughout the trial. If the jury were to make an award, it must be appropriate and fair to both parties. The rules governing the trial judge’s directions to the jury are known as the Barrett rules, laid down by the Supreme Court in 1986 (see paragraph 39 below). 16. The trial judge did not give any specific guideline to the jury regarding the appropriate level of compensation, stressed the limited nature of the guidelines he could provide and indicated, in broad terms, that, when assessing damages the jury must bear in mind reality, the current times, the cost of living and the value of money. He added a cautionary note: “On one famous occasion I told a jury that the plaintiff, if he won, hadn’t won the [national lottery] and they immediately awarded a million euro. Now, that wasn’t what I meant when I was saying that to them.” He explained that the law did not permit him to suggest a figure or a range of figures to the jury: “The amount of damages, ladies and gentlemen, is a matter for you, should you choose to award them. I can’t suggest a figure to you, I am not permitted to suggest a figure to you. I can’t give you a range of figures, I am not permitted to give you a range of figures. I can give you what help I can, and I will, in coming to an appropriate figure for damages. But, ultimately, the figure is yours.” 17. He warned the jurors not to be “overcome by feelings of generosity and give [Ms L.] a ridiculously large amount of money”. Any award must be of an appropriate amount. He continued his charge to the jury as follows: “... [T]hat appropriate figure must also take into consideration the Defendant. You must also be fair to the Defendant too ...[Y]ou must consider the Defendant as well because your decision must be a fair decision and must be fair to both parties. ... You must come to a figure that is an appropriate figure and that is, I fully realise, ... not an easy thing to do. I would like to be able to tell you what other figures have been given in the recent past in similar cases, but I can’t do that and I mustn’t do that. If any of you think you remember newspaper headlines over the past twelve months or so of damages awarded in cases, every case is different. Put those out of your mind completely ... It is this case and what is appropriate in this case that is important and you have to reach that decision yourself and without as much help as I would like to be able to give you, but I am not permitted to give you.” 18. After the jury had retired, the plaintiff’s counsel requested the trial judge to retract the reference to the lottery, as he feared it would be understood by the jury as a warning to keep any award significantly lower than one million euros. He contended that no figure should have been suggested. Counsel for the applicant company disagreed, taking the view that the jury would have clearly understood the trial judge’s remark was not to make any suggestion about the appropriate level of damages in the instant case. The trial judge declined to revisit this aspect of his charge to the jury as it could cause confusion in jurors’ minds, who might think that in withdrawing the reference the trial judge might have been suggesting less or more than that figure. He observed to counsel: “I do find myself in difficulties because of the Supreme Court’s ruling [in the De Rossa case] in that I can’t even indicate to a jury upper and lower in the most general terms, which I would like to be able to do because I think it would save a lot of trouble and I can’t do it because of the decision of the Supreme Court.” He concluded the exchange with counsel on this matter as follows: “I did think that I had traversed the question of damages and, each successive case I do, I get more long-winded about it because I started with very short charges and I used to be very surprised, one way or another, at the amounts juries brought in.” 19. On the first issue the jury found that the newspaper had alleged an extra-marital affair between the plaintiff and Mr C. On the second issue, it found that the meaning of the article was not defamatory. 20. The jury assessed damages at EUR 1,872,000 and the trial judge gave judgment in this amount. He granted a stay on payment pending appeal, with the proviso that the applicant company make an interim payment of EUR 750,000 to Ms L., with an additional EUR 100,000 in legal costs. These payments were made, the Supreme Court having refused on 27 July 2009 to set aside the High Court’s order on interim payment. 21. The applicant company accepted the jury’s decision that it had defamed Ms L. The Evening Herald published an apology to her in its edition of 19 January 2010. It appealed the amount of damages, arguing that no reasonable jury could have made such an award, that it was disproportionate to the damage caused and amounted to an unlawful interference with the applicant company’s rights under the Constitution and the Convention. In its subsequent submissions to this Court on just satisfaction, it considered that a much lower sum – EUR 175,000 – would have been sufficient compensation in the circumstances. 22. In the event that the Supreme Court set aside the award of damages on appeal, Ms L. sought to have the matter remitted to the High Court for a fresh assessment by a new jury. In its notice of appeal, the applicant company also sought an order directing a retrial on the issue of damages. It appears from the case file that, in its subsequent submissions before the Supreme Court, in the event that the latter set aside the High Court award, it argued that the Supreme Court should itself decide the amount of compensation. 23. The Supreme Court gave its ruling on 19 December 2014. All three judges found that the award to Ms L. was excessive and must be set aside. The majority decided to substitute its own assessment of damages (EUR 1.25 million), while the other judge took the view that the case should be re-tried before a different jury. As this would not happen, he indicated that he would have assessed damages at EUR 1 million. 24. The judgment of the majority was given by Dunne J., with whom Murray J. concurred. She noted that the case did not come within the current law on defamation (the Defamation Act 2009, see paragraphs 51-53 below), but had to be decided in accordance with the previous law. Under that regime, the trial judge was limited in the directions that could be given to a jury regarding the appropriate level of damages. It had not been suggested that the trial judge had committed any error in his charge to the jury on the question of damages. Rather, the complaint was that the award was so disproportionately high that it should be set aside. She referred to the relevant Supreme Court case-law, which held that it was the duty of the trial judge to direct the jury that damages must be confined to an amount that will fairly and reasonably compensate the plaintiff for injured feelings and loss of standing. Furthermore, as a fundamental principle of the law of compensatory damages, the award must be reasonable and fair and bear a due correspondence with the injury suffered; a disproportionately high award would be set aside. She rejected the applicant’s argument that larger libel awards should be subjected to more searching scrutiny on appeal than had been customary in the past. Nor did she accept that the relevant legal test should be whether a reasonable jury would have thought such an award necessary to compensate the plaintiff and to re-establish her reputation. She stated: “If such were the test to be applied, it would remove from the jury award the “very unusual and emphatic sanctity” referred to [in previous case-law]. Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.” 25. She further recalled the need for the law to reflect a due balancing of the constitutional right to freedom of expression against the constitutional protection of every citizen’s good name, which, as stated in case-law, brought the concept of proportionality into constitutional jurisprudence. Referring to this Court’s judgment in Independent News and Media and Independent Newspapers Ireland Limited v. Ireland (no. 55120/00, ECHR 2005V (extracts)), she observed that it did not alter or reconfigure Irish law in respect of awards of damages in defamation. She stated: 26. She reviewed the terms used by the trial judge in his charge to the jury. He had told them they could consider the plaintiff’s position in the business community. They could also consider the nature of the libel, which contained the suggestion that she was immoral, had been unfaithful to her husband and had betrayed her family. The mode and extent of publication were relevant, as were the absence of an apology and the company’s decision to stand over the articles to the end. 27. Dunne J. then considered the applicant company’s argument that the amount of damages awarded against it should be compared to awards that had been set aside as excessive in previous defamation cases. She agreed that the comparison might provide some assistance in assessing the gravity of the libel. But she also underlined the need for caution, given the wide variety of factual circumstances of such cases and also the passage of time since previous appellate decisions. As for comparison with personal injury awards, she recalled the different function of damages in the two types of case. In defamation, the function of damages was both to compensate the injury to reputation and to vindicate the person’s good name, a consideration which was not relevant in personal injuries cases. 28. The judge then set out the relevant factors for considering the proportionality of the damages awarded to Ms L. The first was the gravity of the libel. The more closely the libel touched the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of their personality – as was the case here – the more serious it was likely to be. She described the libel as a serious and sustained attack on the business and personal integrity of Ms L. It could be fairly compared with a previous case involving the defamatory allegation against a prominent businessman of bribing a Government minister in order to obtain a licence to operate a radio station (the O’Brien case, summarised in Independent News and Media judgment at §§ 54-63). It could not, however, be regarded as being in the category of the gravest and most serious libels to come before the courts, as was the libel in the De Rossa case (the case that led to the Independent News and Media case, it having been alleged that Mr De Rossa personally supported anti-Semitism and violent communist oppression). But the libel of Ms L. was nonetheless a very serious one. The allegation of adultery must have been a course of real hurt and distress to her. 29. The next factor was the extent of publication. Ms L. had cited eleven articles concerning her. There had been some more articles focussing on the role of the Minister. It was a sustained campaign over a number of days. The newspaper had a daily circulation throughout the State of 90,000 copies; its readership would be higher still. Ms L. had gone from being unknown to the public to being notorious. The publication had therefore been particularly widespread and extensive. 30. The third factor was the conduct of the defendant. It had run a defence of justification that the jury had rejected. It had not offered any apology to Ms L. before the verdict, which was a point the jury could have taken into account. The articles had been accompanied by photographs that had been cropped and manipulated to lend force to the implication that Ms L. got her contracts by virtue of the fact that she was having an affair with the Minister. That too could have been taken into consideration by the jury. 31. The fourth factor was the impact of the defamation on Ms L. The articles had attacked her moral character and her professional reputation. They had implied that she was unfaithful to her husband and had played a part in the break-up of Mr C.’s marriage. They had conveyed the impression that she was prepared to engage in an adulterous relationship in order to advance her professional standing and career. Her ability to do the work she was hired for had been called into question. A new business initiative she was involved in ended when the partner had withdrawn following the publication of the articles, and her consultancy work for the Government had come to an end. Ms L. had given evidence of her own personal hurt and distress at the articles, and described the impact on her husband and sons, one of whom had had to change school in his final year while he was preparing to sit important public examinations. Ms L. had received personal abuse in her hometown. Overall, the articles had had a profound effect on her in every aspect of her family and professional life, which was a consideration that was also relevant to the jury’s award. 32. She then assessed the sum awarded in damages: “The award of damages in this case in the sum of €1,872,000 is a very large award by any standard. ... Overall, I am satisfied that the defamation in this case was a very serious defamation. Undoubtedly, if one was to place the defamation in this case on a scale of seriousness, it would certainly be towards the higher end of the scale. A somewhat unusual feature of this case was the sustained campaign in the Evening Herald in respect of Ms. L. The consequences of it affected her in her day to day life, personally and in her business life. Her newly launched business was destroyed before it could become established. I have no doubt that from her point of view it was a very serious matter. Nevertheless, I do not think it could be classed as one of the most serious libels to come before the Courts ... [T]he award made to Ms. L in this case was one of the highest ever awards made in a case of this kind in this country. Even accepting that this case is one that comes towards the higher end of the scale, I am satisfied that the award made by the jury in this case was excessive and must be set aside.” 33. She continued: “I am conscious of the firm instructions of Ms. L to her legal representatives that in the event that this Court came to the conclusion that the amount of the award was excessive that the Court should in those circumstances remit the matter to the High Court for assessment by a jury again. Whilst I understand those to be her instructions I am satisfied that in the context of this case it would be desirable for all parties to bring an end to the litigation between the parties and in those circumstances it seems to me that the approach to be taken by the Court should be to set aside the verdict of the jury on damages and to substitute a sum in the figure of €1,250,000 for damages.” 34. The other, partly-dissenting judgment was given by McKechnie J. He stated that the issue was whether the award was reasonable and fair and bore a due correspondence with the injury suffered, which was essentially a matter of proportionality. He rejected the suggestion that the jury should be informed of awards made in personal injury actions. The nature and purpose of the two types of damages were inherently different. As for comparison with previous defamation awards, he opposed this for practical reasons. Even with the greatest of care, he did not see how cross referencing to a previous award could aid in determining the compensation to be paid to a particular plaintiff in respect of a particular publication for a particular injury. At most, he could accept that some benefit could be obtained if the comparison was applied within the same or similar class of defamatory remarks. 35. He observed that since the jury represented the community, and defamation was rooted in community values, jury awards in defamation cases enjoyed an eminence and distinction significantly higher than other types of award, including jury awards in non-defamation cases. This point was supported by numerous dicta of the Supreme Court. He said: “... Appeal judges, when conducting such a review, are not the jury and cannot assume the jury’s role. Intervention will be justified only where the award obviously falls outside permitted parameters which, in determining, the court must have due regard, inter alia, to the uniqueness of the jury’s representative function in this particular judicial process. ... Therefore, an award will not be disturbed easily or second guessed purely to fine tune it.” 36. He analysed the libel in detail and also concluded that the award was not proportionate, failing to reflect the necessary objective relationship between wrongdoing and harm. Although he considered that the issue of damages should be submitted for consideration by a fresh jury, in the light of the majority’s decision to set aside the jury verdict and substitute its own award, he offered his own view on the appropriate level of damages, placing it at one million euros. 37. The applicant company duly paid an additional EUR 500,000 in compensation to Ms L. On 26 February 2015, the Supreme Court ordered that the applicant company should bear the legal costs incurred by Ms L. in the appellate proceedings. According to the applicant company, this came to EUR 240,448.16.
| 1 |
test
|
001-170464
|
ENG
|
RUS
|
CHAMBER
| 2,017 |
CASE OF TERENTYEV v. RUSSIA
| 4 |
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1954 and lives in Syktyvkar, the Komi Republic. He is a musician and a jazz critic. 6. On 31 December 2007 the applicant published an article on his personal website about a local jazz festival and its president, Mr Y. The article contained a detailed description of the event and scathing criticism of Mr Y. Using various derivatives of Mr Y.’s surname, the article mocked his professional qualities. The jazz festival was described as being “a shoddy piece of work” and Mr Y.’s delivery “crappy”. 7. Mr Y. sued the applicant in defamation, arguing that the article was insulting and harmful to his reputation. 8. On 14 August 2008 the Syktyvkar Town Court found the applicant liable in defamation. The judgment consisted of the text of the article, a summary of the relevant domestic law, a two-page reproduction of the extracts from the article which had been mentioned in the statement of claim and two paragraphs of conclusions. They stated: “Using a distorted form of the plaintiff’s patronymic and last name ... breaches the plaintiff’s right to a name and to a good name, which is unacceptable under the law. Since the defendant committed a breach of the plaintiff’s intangible assets by way of distorting his patronymic and last name in a negative way, the latter shall have the right to compensation in accordance with Article 152 of the Civil Code. [The contested extracts] undermine the honour and dignity of the plaintiff as a person, pedagogue and musician because they contain negative information about the plaintiff presented in an affirmative form. Pursuant to Article 152 § 1 of the Civil Code, the burden to prove the truth of the allegations is on the defendant, who did not submit any evidence to the court showing that the impugned statements were true.” The Town Court awarded the plaintiff 5,000 Russian roubles (RUB) in damages and directed the applicant to publish a retraction on his website. 9. On 23 October 2008 the Supreme Court of the Komi Republic dismissed an appeal by the applicant. It endorsed the findings of the lower court in a summary judgment. It held that Article 10 of the Convention had not been breached because “the defendant published statements on the Internet which undermined the honour and dignity of the plaintiff as a person, pedagogue and musician and which contained negative information about him”.
| 1 |
test
|
001-146701
|
ENG
|
NOR
|
CHAMBER
| 2,014 |
CASE OF HANSEN v. NORWAY
| 3 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - finding of violation sufficient
|
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque
|
5. The applicant lives at Nesoddtangen, Norway. 6. In 1989 Mrs B., who was then the applicant’s wife, bought a property named Ekheim from him for 6,400,000 Norwegian kroner (NOK), currently corresponding to approximately 760,000 euros (EUR). The couple drew up marital agreements (“ektepakt”) in 1990 and 1995. 7. On 3 November 1995 Mrs B. and the applicant concluded an agreement stipulating that they each owned 50% of the Ekheim estate, regardless of what was stated or might follow from formal entitlements (hereinafter referred to as the joint ownership agreement). 8. Subsequently, after their divorce, the applicant lodged an action against Mrs B. with Fredrikstad City Court (tingrett), seeking a ruling to the effect that the marital agreements were invalid and that the joint ownership agreement was valid. By a judgment of 4 April 2001, the City Court found against the applicant and in favour of the respondent, concluding that the marital agreements were valid and that the joint ownership agreement was invalid. The applicant did not appeal against this judgment, which gained legal force. 9. In 2005 Mrs B. sold the Ekheim estate to Ekheim Invest AS, a limited liability company, for NOK 15,000,000 (approximately EUR 1,1780,000). 10. On 28 June 2007 the applicant instituted civil proceedings before the City Court against Ekheim Invest claiming that he had title to 50% of the Ekheim estate and seeking, firstly, an order that the latter convey 50% of the property to him and, secondly, that he held a pre-emption right with respect to the remaining 50%. 11. According to the summary of the applicant’s submissions made by the City Court in its judgment referred to below, the applicant argued in the main as follows: (a) The question was how to interpret the former spouses’ joint ownership agreement of 3 November 1995. In the case that had previously been decided by the City Court on 4 April 2001, the subject-matter of the dispute had been whether the marital agreements from 1990 and 1995 were valid. The subject-matter in the present case was different. Two spouses having completely separate property had the opportunity to conclude a mutual agreement involving an obligation of performance for each party. According to legal doctrine, such a contract was not dependent on any condition as to form. (b) The contract had been a reality in the present case. Ekheim Invest had purchased the half of the Ekheim estate that had been in Mrs B.’s ownership, not the half owned by the applicant, because Mrs B. had had no right to sell the other half. Consequently, Ekheim Invest ought to transfer by deed of conveyance half of the Ekheim estate back to the applicant. (c) The applicant further submitted that in its 2001 judgment the City Court had not reviewed the validity of the joint ownership agreement. In any event, the legal force of that judgment extended only to the relationship between Mrs B. and the applicant, not between Ekheim Invest and the applicant. The applicant referred to legal doctrine, according to which a judgment as a main rule only had legal force in the relationship between the parties to the proceedings. Moreover, the parties’ arguments ought to be taken as a starting point in the assessment of whether any new factual circumstances had arisen. (d) The applicant’s argument was that in the period since 2001 the estate had increased so greatly in value that the City Court now had to assess the ownership issue independently of the conclusion reached in the 2001 judgment. At that time the mortgages on the property had clearly exceeded its value and it had therefore been unproblematic to hold that, in light of an on-going bankruptcy at the time, the applicant would not have been in a better position in the absence of the marriage settlement agreements. It would be unreasonable if Mrs B. or her successors should be able to profit from the tremendous increase in the property’s value. 12. By a judgment of 21 January 2008, the City Court found in favour of the respondent Ekheim Invest, on the ground that the applicant did not have title to the property in question as the respondent company had derived its rights from Mrs B. and the City Court had ruled in her favour in its 2001 judgment. It rejected the applicant’s argument based on legal doctrine that the 2001 judgment only had legal force between the parties by referring to another passage in the legal manual in question from which it appeared that the point only applied to disputes between a private party and public authorities. The action brought by the applicant had no public-law aspects and the City Court did not consider that the legal doctrine referred to had any bearing on the present case. 13. The applicant appealed against the City Court’s judgment of 21 January 2008 to the Borgarting High Court (lagmannsrett). He argued in particular that the City Court had confused his pleadings and references to legal doctrine made at the oral hearing and had shortened the overall duration of the hearing from the three days initially scheduled to five hours. One hour into the hearing the City Court had truncated the hearing of the applicant’s witnesses, including the presentation of documentary evidence regarding the disputed agreements. The City Court’s hearing record had also been marred by formal mistakes. 14. On 4 April 2008 the High Court warned the applicant that it envisaged refusing admission of his appeal and gave him until 21 April 2008 to comment. After an extension of this time-limit to 5 May 2008 the applicant on the latter date requested that his appeal be admitted for examination or, in the alternative, that the High Court quash the City Court’s judgment and refer the case back to the City Court for fresh examination. On 5 and 11 June 2008 he filed additional submissions. 15. In a unanimous decision (beslutning) of 12 June 2008 the High Court concluded that it refused to admit the appeal (“Anken nektes fremmet”), giving the following reasons: “The High Court finds it clear that the appeal will not succeed, and that its admission should therefore be refused pursuant to Article 29-13(2) of the Code of Civil Procedure.” 16. The applicant appealed against the High Court’s decision to the Supreme Court, arguing notably that the refusal of admission of the appeal lacked reasons. 17. On 19 September 2008 the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg), pointing out that its jurisdiction was confined to reviewing the High Court procedure (Article 29-13 (5) of the Code of Civil Procedure), unanimously found it clear that the appeal would not succeed and therefore rejected the appeal under Article 30-9 (2).
| 1 |
test
|
001-165229
|
ENG
|
HUN
|
COMMITTEE
| 2,016 |
CASE OF DÉNES v. HUNGARY
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
4. The applicant was born in 1949 and lives in Budapest. 5. From 1 July 2002 the applicant was employed as a civil servant at the Prime Minister’s Office. Her service was terminated by the employer on 15 May 2010. 6. Under new legislation (see paragraph 7 below) the applicant’s severance pay was subject to special tax at a 98% rate in its part exceeding 3,500,000 Hungarian forints (HUF). Accordingly, special tax was levied upon her severance pay in the amount of HUF 5,511,909 (approximately 18,400 euros (EUR)).
| 1 |
test
|
001-181584
|
ENG
|
DEU
|
CHAMBER
| 2,018 |
CASE OF TLAPAK AND OTHERS v. GERMANY
| 3 |
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
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6. The applicants in application no. 11308/16 (Tlapak) are a mother and father. Their son J. was born on 15 January 2012. The applicants in application no. 11344/16 (Pingen) are also a mother and father. Their two daughters A. and B. were born on 7 October 2009 and their son G. was born on 23 May 2013. All the applicants are members of the Twelve Tribes Church (Zwölf Stämme) who lived in a community of around twenty members of the church in Wörnitz, Germany. A second community with around 100 members was located in the nearby village of Klosterzimmern. 7. In 2012 the press reported about the Twelve Tribes Church and its position on the right of parents to apply corporal punishment, especially caning. Furthermore, statements by a former member of the community were published, confirming that children had been punished with rods. 8. In 2012 and 2013 the local youth offices (Jugendamt) visited both communities and its spokespersons were invited to a meeting at the Bavarian Ministry of Education. Corporal punishment and the issue of compulsory schooling were discussed at the meeting. 9. On 16 August 2013 the Klosterzimmern youth office and the Nördlingen Family Court received video footage from a television reporter showing ten different instances of corporal punishment in the community in Klosterzimmern. The footage, filmed with a hidden camera, showed the caning of various children between the ages of three and twelve. According to the television reporter, the person who carried out the punishment was not, in most cases, a parent of the child being punished. 10. On 3 September 2013 the Ansbach Family Court, upon an application by the competent youth office, made an interlocutory order regarding all children in the Twelve Tribes community in Wörnitz, including the applicants’ children. The court withdrew the applicants’ rights to decide where their children should live (Aufenthaltsbestimmungsrecht), and to take decisions regarding their health (Gesundheitsfürsorge), schooling and professional training, and transferred those rights to the youth office. The court based its decision on the above-mentioned video footage and the testimony of the television reporter and six former members of the Twelve Tribes community. It concluded that there was a reasonable likelihood that the children would be subjected to corporal punishment in the form of caning and so-called “restraining”, involving holding a child’s limbs tight and pressing his or her head down until the child had no strength left to cry and struggle. 11. On 5 September 2013 the youth office took the community’s children into care. They were supported by around thirty police officers, who, at the same time, searched the community’s premises and found a wooden rod. 12. The applicants’ children were subsequently examined but no physical signs of abuse or beating were revealed. 13. J. Tlapak was subsequently placed in a foster family. As he was still being breastfed, his mother was permitted daily visits to give him milk. 14. A. and B. Pingen were also placed in a foster family. Their aunt’s family was approved as fosterers and they were then placed with them. 15. Since G. Pingen was then only one year and four months old and was also still being breastfed, he and his mother were placed together in a foster family. 16. On 13 September 2013 the Ansbach Family Court heard the applicants and on 23 September 2013 it upheld its order of 3 September 2013 in an interim decision. 17. On 2 December 2013 the Nuremberg Court of Appeal dismissed an appeal by the applicants against the interim decision of the Family Court in essence, but set the decision aside to the extent it concerned the parental right to decide on schooling matters. Given the son’s age, the court held that there was no need to decide on that issue in the interim proceedings. 18. In 2015 the applicants moved – without their son J. – to the Czech Republic, where they have been living since. 19. The Ansbach Family Court heard the applicants on 13 September 2013 and the applicants’ daughters on 18 September 2013 in the foster family’s home. The daughters reported that their parents had hit them on the hand with a rod as a form of corporal punishment. On 23 September 2013 the Family Court upheld its order of 3 September 2013. 20. On 2 December 2013, upon an appeal by the applicants, the Nuremberg Court of Appeal reversed the decision to withdraw the right to decide where G. Pingen should live. The earlier decision on the daughters was upheld, with the proviso that the parents were to retain the right to take decisions on school matters and on their daughters’ choice of education or training and career. 21. The son was subsequently returned to the applicants, who moved first to Belgium and later to the Czech Republic, where they have been living since. The applicants’ daughters are still in the care of the foster family (see paragraph 14 above). 22. Upon an application made by the applicants on 9 September 2013 the Family Court initiated the main proceedings and, on 24 September 2013, it commissioned an expert opinion. 23. After interviewing the applicants and observing a meeting between them and their son, the expert submitted a written opinion on 19 December 2013. He found that even though the applicants had a loving attitude towards their son, they considered corporal punishment with objects as an appropriate and necessary parenting method. Owing to their willingness to apply that method to their son, there was a likelihood bordering on certainty that if he remained with them, they would apply corporal punishment. This, the expert concluded, would significantly jeopardise the son’s development and result in psychological problems. Overall, it was in the child’s best interests to place him away from his parents to protect him from the applicants’ parenting methods, which were dangerous for the child. Since their parenting was based on religious convictions, they were unwilling to abandon the parenting method of corporal punishment and lacked the will to cooperate with the authorities or accept help. Consequently, less intrusive measures could not be considered sufficient. 24. Subsequently the applicants submitted a privately commissioned expert opinion, in which the court-appointed expert’s approach and methodology was criticised. In addition, the applicants retrospectively withdrew their consent to being assessed by the court-appointed expert and to an assessment of their son. 25. In separate proceedings the Family Court, on 1 August 2014, issued an interim decision in which it withdrew the applicants’ parental right to decide on the son’s assessment by the court-appointed expert and consented to such a measure. 26. On 4 August 2014, the Family Court forwarded the privately commissioned expert opinion to the court-appointed expert, who responded to the criticism and gave details of his methodology in a letter of 15 August 2014. 27. In a hearing on 19 September 2014 the court proposed an agreement between the applicants and the youth office, with the aim of returning their son to them. However, the applicants and the youth office did not agree on a settlement owing in particular to a disagreement about the son attending a state school and play therapy. Moreover, there were concerns about the parents attending a development course and assisting with medical measures. The youth office considered those aspects as essential and declined the partial settlement proposed by the applicants. 28. After hearing the applicants’ son in the home of the foster family where he had been placed on 21 October 2014, the Family Court decided on 22 October 2014 to withdraw the applicants’ right to decide where their son should live and to take decisions regarding his health and schooling, and transferred those rights to the youth office, which had been appointed as supplementary guardian. 29. The Family Court stated that it would be very detrimental to the best interests of the child if the son continued to live with the applicants owing to their parenting methods. Based, in particular, on the courtcommissioned expert opinion and the statements by the applicants during the court proceedings, the court concluded that there was a high, concrete probability that the son would be subjected to corporal punishment using physical objects over the course of several years. According to the expert, this would give rise to an expectation that the applicants’ son would suffer from psychological issues. Even though separating the parents and the child constituted a severe interference with their right to a family under Article 6 of the Basic Law (see paragraph 53 below) and may possibly have negative consequences for the child, that interference was justified in the case at hand. Corporal punishment of the kind at issue was particularly degrading for a child. It was not only banned by Article 1631 § 2 of the Civil Code (see paragraph 54 below) but also constituted an interference with a child’s human dignity, protected under Article 1 of the Basic Law (see paragraph 50 below), and a child’s right to physical integrity, protected under Article 2 of the Basic Law (see paragraph 51 below). 30. The court also held that the risk to the child could not be averted using less drastic measures. Throughout the course of the proceedings the applicants had unreservedly advocated their parenting style and had refused to accept the opinion that the type of corporal punishment they endorsed was covered by the ban on violence under Article 1631 of the Civil Code. The physical effects of such punishment were only short-lived, which was why it would only be possible for the youth office to observe any such effects if it made unannounced visits and the child had – by chance – been punished immediately prior to such a visit. According to the expert’s explanations, the psychological consequences could, by contrast, only be determined after a longer period of time and they were difficult to discern at first glance. Although the applicants had most recently indicated to the court that they were ready to refrain from corporal punishment in the future, the court regarded such statements as not being compelling since they had not provided any grounds. The Family Court, nonetheless, pointed out that the applicants were free to reach an out-of-court settlement with the youth office concerning the conditions under which the son could be returned after the proceedings had been concluded. However, the previous settlement proposal had been refused because the applicants had not been willing to agree to have their son take part in play therapy and attend a state school. 31. In regard to the fact that the applicants had withdrawn their consent to being examined by the court-appointed expert after the expert opinion had already been submitted, both for themselves and their child, the court held that this did not render the expert’s report unusable in the proceedings. While the court had given its own consent in place of the parents’ as far as it concerned the son, the parents’ actions on that point could not, in light of the state’s obligation to protect children under constitutional law, hinder the use of the expert opinion in the proceedings. Allowing parents to reject expert opinions they disagreed with by retrospectively withdrawing consent to an examination would prevent any effective protection of children in family court proceedings. 32. The applicants subsequently appealed against the decision of the Family Court. The Court of Appeal, after hearing the applicants, their son, the son’s guardian ad litem, a representative of the youth office, the courtappointed expert and the expert commissioned by the applicants, dismissed the applicants’ appeal on 26 May 2015. 33. In a decision of thirty-nine pages, the Court of Appeal considered in detail the applicants’ statements concerning corporal punishment, publications by the Twelve Tribes Church, the expert’s opinion and the criticism of the report by the privately commissioned expert. Overall it confirmed the decision and reasoning of the Family Court of 22 October 2014. The court emphasised that not all individual violations of the right to a non-violent upbringing under Article 1631 § 2 of the Civil Code (see paragraph 54 below) could justify a withdrawal of parental authority. However, there was a fear in the applicants’ case that systematic caning with a rod would be the reaction whenever the child was deemed to have broken a rule. There was moreover already a threat to the child’s best interests as he would live in constant fear of suffering physical pain and experiencing the resulting humiliation as psychological suffering. Beatings as such, the court held, constituted child abuse and misuse of parental authority. It was of no relevance whether or not lasting physical injuries occurred. 34. The court further held that on account of their religious beliefs, the applicants were convinced that their child-rearing methods were legitimate. Accordingly, they were neither willing nor able to avert the danger to their child and the recent contradictory statements they had made could not be considered as credible. 35. On 16 August 2015 the Federal Constitutional Court refused to admit a constitutional complaint by the applicants (1 BvR 1467/15), without providing reasons. 36. The Family Court, upon an application by the applicants dated 9 September 2013, initiated the main proceedings and on 24 September 2013 commissioned an expert opinion. 37. After interviewing the applicants, their two daughters and the children’s foster parents, and observing a meeting between the applicants and their children, the expert submitted a written opinion on 23 December 2013. He stated that the applicants and their daughters had confirmed that the parents had used a rod as corporal punishment on the daughters and that even though the applicants had a loving attitude towards their children, they considered corporal punishment using physical objects as an appropriate and necessary parenting method. Given the past incidents of corporal punishment and the applicants’ general willingness to use that method on their children, it was virtually certain that they would subject them to corporal punishment again. The expert concluded that the applicants’ rigid, authoritarian parenting style and their conviction that children should be raised to obey their parents by means of corporal punishment using physical objects from the age of three conflicted significantly with the best interests of the children and was also detrimental to the unimpaired development of their personality. He expected that such methods would likely result in psychological issues. Overall, it was in the best interests of the children to place them away from their parents. Since the applicants’ parenting style was based on religious convictions, they were unwilling to abandon the parenting method of corporal punishment and were not fully prepared to cooperate with the authorities and accept help. Consequently, measures that infringed on their rights to a lesser degree could not be considered sufficient. 38. Subsequently, the applicants submitted a privately commissioned expert opinion, in which the court-appointed expert’s approach and methodology was criticised. In addition, the applicants retrospectively withdrew their consent to being assessed by the court-appointed expert and to the assessment of their three children. 39. In separate proceedings the Family Court, on 1 September 2014, issued an interim decision in which it withdrew the applicants’ parental right to decide on the children being assessed by the court-appointed expert and consented to the psychological examination. It also forwarded the privately commissioned expert opinion to the court-appointed expert, who responded to the criticism in it and gave details of his methodology in a letter of 1 October 2014. 40. In a hearing of 29 September 2014 the parties discussed an agreement between the applicants and the youth office, with the aim of returning the daughters to the applicants and protecting all three children. However, the applicants and the youth office could not agree on a settlement as there was disagreement in particular on the children attending a state school and therapy. Moreover, the applicants were unwilling to remain in Germany under the supervision of the youth office for an extended period of time. 41. After hearing the applicants and their daughters several times, including in parallel proceedings, the Family Court decided on 21 October 2014 to withdraw the applicants’ right to decide where all three children should live and to take decisions regarding the children’s health and schooling, and transferred those rights to the youth office, which had been appointed as supplementary guardian. Additionally, the court ordered the applicants’ son to be handed over to the youth office. 42. In its reasoning, which was similar to that in application no. 11308/14 (see paragraphs 29-31 above), the Family Court held that the applicants’ parenting methods meant that it would be very detrimental to the best interests of all three children to continue to live with their parents. The court emphasised that the aim of Article 1666 of the Civil Code (see paragraph 55 below) was not to penalise past child abuse or views on parenting that were in contradiction to Article 1631 § 2 of the Civil Code (see paragraph 54 below), but to prevent imminent threats to the best interests of children. Based, in particular, on the opinion by the courtappointed expert and the statements by the applicants and their children, the court concluded that there was a high, concrete probability that the children would be subjected to systematic corporal punishment using physical objects, which would in turn be detrimental to the best interests of the children in physical and psychological terms. The severe interference with the applicants’ right to a family under Article 6 of the Basic Law (see paragraph 53 below) by separating them from their children was nonetheless not only justified but also proportionate since the risk to the children could not be averted using milder means. Besides the problem of detecting corporal punishment through unannounced visits by the youth office (see paragraph 30 above), the court also pointed out that the applicants had consistently, over the course of the proceedings, shown a lack of willingness to cooperate with the youth office and had refused to accept state schools, both of which the court found necessary to prevent degrading corporal punishment and ensure the children’s autonomous development. Furthermore, the court held that it could be expected that the applicants would leave Germany if their children were returned to them and thereby elude any orderly monitoring and supervision by the competent youth office. Lastly, the court concluded that the withdrawal of the consent to being examined by the court-appointed expert did not hinder the use of the expert opinion in the proceedings (see paragraph 31 above). 43. The applicants subsequently appealed against the decision of the Family Court and applied for an interim measure to suspend the order to hand their son over to the youth office. 44. On 15 December 2014 the Court of Appeal provisionally suspended enforcement of the Family Court’s order on the son. The court held that given his age, one year and six months, and the fact that he was still being breastfed, enforcement would constitute an especially serious interference with the applicants’ rights. In addition, the son’s young age meant there was no imminent and sufficient risk of him being subjected to corporal punishment. 45. During the appeal proceedings the applicants proposed a settlement to the Court of Appeal. The applicants would temporarily return to Germany and for two months they would gradually be reunited with their two daughters under the supervision of the youth office. At the end of that period, if the family reunification had been successful, the Family Court’s decision would be set aside and the whole family would move to the Czech Republic. 46. On 26 March 2015 the Court of Appeal conducted an oral hearing during which it heard, inter alia, the applicants, their daughters, the courtappointed expert, the expert commissioned by the applicants and the children’s guardian ad litem. The applicants’ daughters stated that, even though they would like to see their parents more often, they would prefer living with their foster parents. Moreover, a representative of the youth office indicated during the hearing that the applicants had not distanced themselves from their previous parenting methods in a credible way and that therefore the youth office was not able to agree to the settlement they had proposed. 47. On 10 June 2015 the Court of Appeal, in a detailed decision of fortyfive pages, rejected the applicants’ appeal and confirmed the reasoning of the Family Court. The court held that corporal punishment with a rod, prohibited by Article 1631 § 2 of the Civil Code (see paragraph 54 below), constituted the physical abuse of children and if applied regularly and repeatedly the competent authorities were obliged under Article 1666 of the Civil Code (see paragraph 55 below) to intervene and take the necessary measures in the best interests of the children. The applicants’ daughters had consistently stated during the proceedings that they had been caned on a daily basis and the applicants themselves had confirmed that they had “disciplined” their daughters with a rod. The court was convinced that the applicants would continue to use corporal punishment on their children in the future since that parenting method was already firmly established and was based on religious beliefs from which the applicants had not fundamentally distanced themselves. Their statements had shown that they, in essence, continued to approve of corporal punishment and considered it an appropriate parenting method. The fact that the applicants had recently acknowledged that their children had a right to a non-violent upbringing did not mean they had changed their attitudes to parenting in a permanent way; rather, that had only served a procedural purpose, namely to have their daughters returned to them as soon as possible. In the court’s opinion, the applicants were only prepared to refrain temporarily from corporal punishment. The court was therefore unable to find that the applicants had changed their way of parenting and distanced themselves from corporal punishment in a manner which the court could regard as credible. Consequently, there was an imminent danger of systematic corporal punishment if the two daughters were returned to their parents. The danger also existed for the applicants’ son as there was no fixed age when the applicants started “disciplining” their children as they rather considered it a tool to enforce their parental authority. As the two-year-old son was expected to start his “phase of defiance” soon, it also had to be expected that the applicants would respond with caning. 48. The Court of Appeal also confirmed that the applicants’ withdrawal of their consent to being assessed did not prevent the courts from using the expert opinion as evidence and that there were no less severe measures available to avert the imminent detriment to the best interests of the children resulting from their parents’ use of corporal punishment. In that regard, the court, inter alia, pointed to the fact that the applicants had already left Germany with their son and refused to return to live there permanently. The competent authorities would therefore from the very outset be unable to provide sufficient support to the family or effectively monitor the applicants’ parenting methods. 49. On 16 August 2015 the Federal Constitutional Court refused to admit a constitutional complaint by the applicants (1 BvR 1589/15), without providing reasons.
| 0 |
test
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001-175604
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ENG
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TUR
|
ADMISSIBILITY
| 2,017 |
ALADAĞ v. TURKEY
| 4 |
Inadmissible
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Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström
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1. The applicant, Mr Mehmet Aladağ, is a Turkish national, who was born in 1974 and was detained in Tekirdağ Prison at the time of lodging the application. He was represented before the Court by Mr İ. Akmeşe, a lawyer practising in Istanbul. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 23 February 2006 the applicant was arrested on suspicion of membership of a terrorist organisation and for illegal possession of explosives. 5. On 26 February 2006 the applicant was placed in detention on remand on the order of the investigating judge. 6. On 3 March 2006 the Istanbul Public Prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with membership of a terrorist organisation and illegal possession of explosives, under Articles 174 and 314 of the Criminal Code (Law no. 5237). 7. Between 15 June 2006 and 8 April 2008 the Istanbul 9th Assize Court held seven hearings. At the end of each hearing the court reviewed the applicant’s pre-trial detention. Taking into account the seriousness of the offence with which the applicant had been charged and the state of the evidence, it decided to keep him in detention. The applicant and his lawyer were present at each hearing. 8. After the third hearing, held on 21 December 2006, the applicant filed an objection against the detention order and asked to be released. On 28 December 2006 the Istanbul 10th Assize Court rejected the applicant’s request after examining it on the basis of the case file, without holding a hearing. When delivering its decision the Assize court took into account a written opinion filed by the public prosecutor, which was not communicated to the applicant or his lawyer. 9. A sixth hearing was held on 6 December 2007, after which, on 30 January 2008, the Assize court held a hearing to review the applicant’s detention. The hearing was held ex proprio motu, pursuant to Article 108 of Law no. 5271, and the decision was delivered on the basis of the case file. 10. On 8 April 2008 the Istanbul Assize Court found the applicant guilty as charged and sentenced him to a total of ten years’ imprisonment and a fine. 11. On 9 February 2009 the Court of Cassation upheld the first-instance court’s judgment without holding a hearing.
| 0 |
test
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001-162179
|
ENG
|
PRT
|
COMMITTEE
| 2,016 |
CASE OF CUNHA MARTINS DA SILVA COUTO 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)
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Krzysztof Wojtyczek;Paulo Pinto De Albuquerque
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4. The applicant was born in 1961 and lives in Porto. The relevant details of the applications are set out in the appended table. 5. The applicant complained of the excessive length of civil proceedings and the lack of an effective remedy in this respect.
| 1 |
test
|
001-180475
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,017 |
GAVRYLOVA AND OTHERS v. UKRAINE
| 4 |
Inadmissible
|
André Potocki;Angelika Nußberger;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
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1. A list of the applicants, who lodged the present applications between 23 December 2005 and 31 August 2006, is set out in the appendix. 2. The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr I. Lishchyna. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 27 July 2002 the Air Force of Ukraine staged a military aviation show at the Sknyliv aerodrome in Lviv. During the aerobatics performance, an SU-27 military aircraft crashed into a crowd of spectators and exploded. Both pilots had successfully ejected before the explosion. As a result of the crash, seventy-seven people were killed and over 290 people, including the applicants, sustained damage to their health (see details in paragraphs 17-50 below). 5. On the date of the accident criminal proceedings were instituted to establish the cause of the crash. 6. On various dates the applicants were admitted in these proceedings as injured parties and civil claimants. Following individualised assessments of the applicants’ injuries by forensic experts within the framework of those proceedings, they were divided in three categories: “minor injuries”, “injuries of intermediate seriousness” and “grave injuries” depending on their impact on the applicants’ health and well-being, the reversibility or irreversibility of their nature, the length of recovery and the intensity of the medical intervention required. The seriousness of both the physical and the emotional trauma were taken into account in the process of attribution to a category. 7. On 27 August 2004 the criminal proceedings against four officers of the rank of general (hereinafter “the organisers’ case”) were disjoined from the criminal proceedings against the pilots and the supporting ground crew (hereinafter “the performers’ case”). 8. On 23 June 2005 the Central Region Military Court of Appeal examined the performers’ case and found the two pilots of the crashed aircraft and three supporting crew members guilty of negligence. These officers were sentenced to various terms of imprisonment. 9. On the same date the court also ruled on the applicants’ civil claims, awarding them various amounts in respect of pecuniary damage (mostly medical expenses) and non-pecuniary damage in connection with physical injuries and emotional distress, to be paid by the Ministry of Defence (see details in the appended table below). 10. The applicants appealed, seeking, in particular, an increase in the compensation payments. 11. On 2 March 2006 the Military Panel of the Supreme Court of Ukraine rejected the applicants’ appeals and the judgment in the performers’ case became final. 12. Between June 2006 and March 2007 all the judgment awards due to the applicants were paid out. 13. Some applicants lodged further civil claims within the framework of the organisers’ case, which was still ongoing at the material time. 14. On 11 June 2008 the Central Region Military Court of Appeal examined the organisers’ case and acquitted the four officers charged in these proceedings. 15. On 22 October 2008 this decision was upheld on appeal by the Military Panel of the Supreme Court of Ukraine and all the civil claims lodged within the framework of the organisers’ case were left unexamined in view of the acquittal. 16. On various dates starting from 2002, in addition to the compensation awarded by the court, almost all of the applicants also obtained payments in State and municipal aid from the Sknyliv accident victim relief funds (see details in the appended table below). Every applicant also obtained further payments ranging from 2,620 hryvnias (UAH) (Ms Liliya Belinska; minor emotional injury) to UAH 41,000 (Mr Denis Gavrylov; grave injury) from charitable funds set up and managed by the authorities to attract private donations in aid to the Sknyliv accident victims. On various occasions some of the applicants were also provided with vacation vouchers and recreational treatment vouchers to facilitate their mental and physical recovery. For more details concerning the accident, the ensuing investigation and State and municipal aid to the victims see Mikhno v. Ukraine, no. 32514/12, §§ 12-58 and 67-71, 1 September 2016 and Svitlana Atamanyuk and Others v. Ukraine, nos. 36314/06 and 3 others, §§ 17-64 and 71-75, 1 September 2016). 17. The present application was lodged by two Ukrainian nationals who are resident in Lviv: Mrs Tetiana Kostyantynivna Gavrylova, born in 1949 and Mr Denis Oleksandrovych Gavrylov, born in 1987. Mrs Tetiana Gavrylova is the mother of Mr Denis Gavrylov. The applicants were represented by Mr T.R. Sendega, a lawyer practising in Lviv. 18. As a result of the Sknyliv air show accident, Mrs Tetiana Gavrylova sustained a blunt soft tissues leg injury with haemorrhage and multiple abrasions cumulatively classified by domestic forensic experts as injuries of “intermediate seriousness”. 19. Mr Denis Gavrylov had his popliteal artery and right leg muscles crushed. He also sustained multiple abrasions, contusions and other injuries cumulatively classified by domestic forensic experts as a “grave injury”. Following the accident, he underwent treatment in the hospital rehabilitation unit followed by lengthy inpatient and outpatient treatment. 20. By the time the present application was lodged in December 2005, Mr Gavrylov had been classified as suffering from “second (intermediate) degree” disability under domestic classification and was in receipt of a disability pension. 21. The present application was lodged by three Ukrainian nationals resident in Lviv: Mrs Natalya Yaroslavivna Chorna, born in 1971, Mr Anton Bogdanovych Chornyy born in 1977 and Mr Bogdan Antonovych Chornyy, born in 1999. The first two applicants are spouses and the third applicant is their son. They were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 22. According to the applicants, they were so close to the site of the SU27 aircraft crash that their clothes were stained with the blood and body parts of people injured and dying around them. In order to reach safety, they had to make their way past numerous mutilated corpses and disfigured screaming people along the aerodrome runway. 23. Mrs Natalya Chorna sustained an ankle injury with a ligament rupture, contusion and haematoma. Subsequently she was also diagnosed as suffering from post-traumatic stress disorder, which transformed into asthenic-depressive neurosis. Her injuries were classified as injuries of “intermediate seriousness” by domestic forensic experts. 24. Mr Anton Chornyy was diagnosed as suffering from post-traumatic stress disorder. His psychological trauma was classified by domestic forensic experts as a “minor injury”. 25. Mr Bogdan Chornyy, a three-year old minor at the date of the accident, sustained a contused cerebral wound, concussion and a haematoma. He also developed post-traumatic stress disorder, which included symptoms such as fear of crowds and sleep disturbance. He also suffered from various forms of physiological dysfunction, including a stutter and disruption of his speech development. Mr Bogdan Chornyy’s injuries were classified by the domestic forensic experts as ones of “intermediate seriousness”. On several occasions in the years that followed, Mr Bogdan Chornyy was placed on inpatient treatment programmes in psychoneurological institutions. 26. According to the applicants, at the date of the exchange of observations in 2013, they were still suffering from the after-effects of the accident. They provided numerous medical documents as evidence that they had continued to be under on-going medical supervision in connection with the psychological trauma sustained at the accident site. 27. The present application was lodged by Mr Boris Borisovich Yudin, a Ukrainian national born in 1946 and resident in Lviv. The applicant was represented by Ms Y.V. Kulbiy-Kukhar, a lawyer practising in Lviv. 28. As a result of the Sknyliv air show accident, Boris Yudin sustained a heavy cerebral contusion with subarachnoid haemorrhage and a fracture of the clavicular bone. For six days after the accident he was in a coma. Upon regaining consciousness, he suffered from partial amnesia, temporary speech loss, hallucinations and was unable to walk. Following intensive inpatient neurological treatment, Boris Yudin regained some cerebral functions. However, he never attained full recovery and by 2006 he had been classified as suffering from disability of “the first degree” in need of outside assistance for meeting basic daily needs. According to classification by domestic forensic experts, Boris Yudin’s trauma was classified as a “grave injury”. 29. The present application was lodged by two Ukrainian nationals ‒ Mrs Iryna Grygorivna Reshetilova, born in 1950, and Mr Viktor Mykhaylovych Yegorov, born in 1957, and a US national ‒ Mr Nikita Sergejevich Bastrakov, born in 1998. The first two applicants are the grandparents of the third applicant. All three applicants are resident in Lviv. They were represented by Mr A.P. Syvyk, a lawyer practising in Lviv. 30. According to the applicants, on the date of the accident, moments before the SU-27 hit the ground, Mr Bastrakov − a four-year-old minor at that time − was watching it with his mouth open, while Mrs Reshetilova said to him in amusement: “Wow, look how low can this airplane fly!” The next moment, Mr Yegorov, having suddenly realised that the aircraft was falling, pushed his grandson to the ground and covered him with his body, urging his wife to likewise lie on the ground. Moments later, the applicants were hit by the heat wave from the aircraft’s turbines, which burnt their clothes and skin. The soles of Mr Yegorov’s shoes were also completely burned. When the applicants finally got onto their feet, they were covered with other people’s blood and with soot from the aircraft, which had exploded some distance from them. 31. As a result of the accident, Mrs Reshetilova suffered multiple burns to her face, limbs and eyes. The heat wave from the aircraft’s turbines also entered her respiratory system and burned her larynx, trachea, bronchi and lungs. In addition, Mrs Reshetilova suffered an acute neurological reaction to stress. Domestic forensic experts classified her injuries as “minor”. According to the applicant, this classification was incorrect, as she had never fully recovered from her injuries. She provided extensive medical documentation as evidence to prove that the after-effects of her injuries included chronic obstructive bronchitis, pulmonary emphysema, encephalopathy, and various other medical complications. By 2006 Mrs Reshetilova had been classified as suffering from general disability of the “third (mildest) degree” according to the domestic classification system. 32. Mr Viktor Yegorov sustained contusion of the chest area, fractures of the fifth and seventh vertebra and multiple abrasions cumulatively classified by domestic forensic experts as “injuries of intermediate seriousness”. He also developed complications, including frequent headaches, back pain and a number of other neurological symptoms. 33. Mr Nikita Bastrakov sustained a hand wound, face abrasions and post-traumatic stress disorder manifested most markedly, through phobias, asthenic symptoms and bed-wetting. His injuries were classified by domestic forensic experts as being of “intermediate seriousness”. 34. The present application was lodged by Mrs Galyna Ivanivna Kurylka, a Ukrainian national born in 1958 and resident in Lviv. The applicant was represented by Mr D. A. Gudyma and Mrs S. V. Khyliuk, lawyers practising in Lviv. 35. As a result of the accident, the applicant suffered contusion of her foot and developed post-traumatic stress disorder classified by domestic forensic experts as a “minor injury”. According to the applicant, this classification was incorrect, as her mental state had in fact deteriorated to a point that she was forced to quit her employment as a kindergarten mentor. After a series of inpatient and outpatient treatment programmes, in 2006 Mrs Kurylka was classified as suffering from “second-degree” (moderately serious) disability and unfit for work, excluding the performance of domestic tasks. At the time of the exchange of observations in 2013, Mrs Kurylka was unemployed on a disability pension and was under permanent outpatient psychiatric supervision. In addition, several times per year she participated in courses of inpatient rehabilitative treatment in psycho-neurological institutions. 36. The present application was lodged by Ms Khrystyna Viktorivna Koshulap (married name Dzyunka), a Ukrainian national born in 1989 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 37. As a result of the Sknyliv air show accident, Ms Koshulap, a thirteen-year-old minor at that time, sustained a complicated hand injury with damage to the extensor tendons classified by domestic forensic experts as an “injury of intermediate seriousness”. She underwent a series of reconstructive operations followed by inpatient and outpatient treatment programmes. It is not clear from the case file whether the applicant has fully recovered. 38. The present application was lodged by two Ukrainian nationals resident in Lviv: Mr Anatoliy Romanovych Garasymiv, born in 1964, and Mr Volodymyr Anatoliyovych Garasymiv, born in 1991. Mr Anatoliy Garasymiv is the father of Mr Volodymyr Garasymiv. The applicants were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 39. As a result of the Sknyliv air show accident, Mr Anatoliy Garasymiv sustained cerebral concussion, multiple facial and head burns, as well abrasions to the fingers and knees, cumulatively classified by domestic experts as “minor injuries”. According to him, this classification was incorrect, as he had never regained his health and continued to suffer from the after-effects of the accident at the date of the exchange of observations in 2013. As a result of his physical injuries and stress, Mr Anatoliy Garasymiv started suffering, in particular, from frequent headaches, hypertonic disease, and other complications. Within a few months of the accident he was forced to abandon his career as a military wind instrument player and was eventually dismissed from the military forces on health grounds. By 2006, Mr Anatoliy Garasymiv was classified as suffering from disability entailing 40% loss of capacity to work. 40. Mr Volodymyr Garasymiv, an eleven-year-old minor at the date of the accident, developed post-traumatic stress disorder classified by domestic experts as “minor injury”. 41. The present application was lodged by Ms Liliya Bogdanivna Belinska (married name Salo), a Ukrainian national born in 1985 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 42. As a result of the Sknyliv air show accident, Ms Liliya Belinska, a seventeen-year-old minor on the date of the accident, developed posttraumatic stress disorder, which was treated on an outpatient basis. Her trauma was classified by domestic forensic experts as a “minor injury”. 43. The present application was lodged by Ms Liubov Grygorivna Stupets, a Ukrainian national born in 1961 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 44. Ms Liubov Stupets sustained rupture of the acromio-clavicular ligament, her injury having been classified by domestic experts as one of “intermediate seriousness”. According to the medical documents presented by Ms Stupets, treatment of this trauma required several surgical interventions and extensive inpatient rehabilitation treatment. The applicant had to abandon her career in sports and as a school physical education teacher. In November 2002 she was classified as suffering from disability of the “third degree”. By 2006 her state of health was still deteriorating: she developed post-traumatic arthritis, pain syndrome, and a number of neurological and other conditions. At the date of the exchange of observations in 2013, the applicant was receiving a disability pension. 45. The present application was lodged by Ms Nataliya Yaroslavivna Sivanych (married name Buntseva), a Ukrainian national born in 1985 and residing in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 46. As a result of the Sknyliv air show accident, Ms Nataliya Sivanych sustained cerebral concussion, numerous wounds and fractures of several foot bones, which required inpatient treatment followed by an outpatient rehabilitation programme. The applicant’s injuries were cumulatively classified by domestic forensic experts as ones of “intermediate seriousness.” 47. The present application was lodged by two Ukrainian nationals residing in Lviv: Mr Anatoliy Mykolayovych Shevchuk, born in1967 and Mr Andriy Anatoliyovych Shevchuk, born in 1991. Mr Anatoliy Shevchuk is Mr Andriy Shevchuk’s father. The applicants were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 48. According to the applicants, as the fallen aircraft exploded, parts of it flew their way. Both of them would have probably been killed, had it not been for Mr Anatoliy Shevchuk’s quick reaction: he managed to push his son to the ground and cover him with his body just before the moment they would have otherwise been hit by these flying parts. When the applicants got up, they saw numerous mutilated bodies of dead, burnt and wounded people around them. Whilst attempting to provide first aid to accident survivors, Mr Anatoliy Shevchuk lost view of his son, who wandered off in the midst of the mutilated bodies and screaming people. After having looked for his son for about an hour, Mr Anatoliy Shevchuk found him uninjured physically, but in a state of deep mental shock, unable to speak or make productive contact with others. Mr Andriy Shevchuk was immediately placed in a psycho-neurological hospital for inpatient treatment. 49. On 28 July 2002 Mr Anatoliy Shevchuk went back to work and attempted to resume his normal duties. However, after suddenly developing a stutter, he applied for psychiatric assistance. 50. Subsequently, both applicants underwent several sessions of inpatient psychiatric treatment followed by outpatient treatment and regular supervision. They were diagnosed with post-traumatic stress disorder classified by domestic experts as an “injury of intermediate seriousness”. 51. Article 49 of the Constitution of Ukraine (1996) provides, in particular, as follows: “ Everyone has the right to health protection, medical care and medical insurance. Health protection is ensured through state funding of the relevant socio-economic, medical and sanitary health improvement and prophylactic programmes. The State creates conditions for effective medical service accessible to all citizens. State and communal health protection facilities provide medical care free of charge; the existing network of such institutions shall not be reduced. The State promotes the development of medical facilities of all forms of ownership. ...” 52. Other relevant provisions of domestic law are cited in the Court’s judgment in the case of Mikhno (cited above, §§ 76-105).
| 0 |
test
|
001-160264
|
ENG
|
AUT
|
COMMITTEE
| 2,016 |
CASE OF BINDER v. AUSTRIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
|
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
4. The applicant was born in 1950 and lives in Vienna. 5. On 29 January 2004 the applicant applied for rent allowance (Mietbeihilfe) under the Vienna Social Welfare Act (Wiener Sozialhilfegesetz). 6. On 13 July 2004 the Vienna Municipal Authority (Magistrat der Stadt Wien) dismissed the applicant’s request, holding that the applicant was not eligible for rent allowance as his income exceeded the statutory limit (Richtsatzüberschreitung). 7. The applicant appealed and complained that the Municipal Authority had failed to take into account his maintenance obligations towards his two sons. 8. On 10 August 2004 the Vienna Regional Government (Amt der Wiener Landesregierung) dismissed the appeal, holding that maintenance obligations were, according to the Administrative Court’s case-law, not to be considered as income-reducing, as long as no enforcement proceedings were instituted against the applicant’s income. 9. On 6 October 2004 the Constitutional Court granted the applicant’s request for legal aid in order to file a complaint against the Regional Government’s decision. 10. On 8 November 2004 the applicant filed a complaint with the Constitutional Court, claiming in essence that the Regional Government had wrongly interpreted the Administrative Court’s case-law as regards the nonconsideration of the applicant’s maintenance obligations. 11. On 1 March 2005 the Constitutional Court declined to deal with the applicant’s complaint, holding that it did not raise any questions of constitutional law and transferred the case to the Administrative Court. 12. On 11 May 2005 the applicant submitted his amended complaint to the Administrative Court. 13. On 23 February 2009 the Administrative Court dismissed the applicant’s complaint as unfounded. Referring to its case-law, it held that the applicant had failed to argue that he was in a state of emergency due to enforcement proceedings being conducted in connection to his maintenance obligations. It was therefore not unlawful that the Regional Government had refrained from taking into account the applicant’s maintenance payments when assessing his eligibility for rent allowance. 14. This decision was served on the applicant’s counsel on 13 March 2009.
| 1 |
test
|
001-175683
|
ENG
|
CYP
|
ADMISSIBILITY
| 2,017 |
HERAKLEOUS v. CYPRUS
| 4 |
Inadmissible
|
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
|
1. The first applicant, Mrs Maria Herakleous, is the widow of Mr Michael Herakleous, who was killed on 11 July 2011, while serving in the National Guard, as a result of an explosion at the Evangelos Florakis naval base near the village of Mari. The second and third applicants, Andreas Herakleous and Solonas Herakleous, are their sons. The applicants are Cypriot nationals and were born in 1967, 1996 and 1991 respectively. They all live in Nicosia. 2. The applicants were represented before the Court by Mr L. Loucaides, a lawyer practising in Nicosia. 4. On 11 July 2011 at around 5.50 a.m. an explosion occurred on the Evangelos Florakis naval base. This was caused when ninety-eight containers of explosives, mainly gunpowder, burst into flames. These had been stored out in the open on the base since February 2009, after being confiscated from a Cyprus-flagged Russian-owned vessel – the Monchegorsk, heading from Syria to Iran – for violation of United Nations Security Council’s weapons sanctions. Thirteen people were killed by the explosion and sixty-two people were injured. Substantial damage to property was caused and there was significant financial damage and loss. 5. By an order dated 20 July 2011, and pursuant to the Commissions of Inquiry Law (Cap. 44, as amended at the time by Laws nos. 37/1982 and 84/1983), the Council of Ministers appointed a lawyer in private practice, Mr P.G.P, as a one-member commission of inquiry (“the investigator”), to look into the explosion and the circumstances which had led to it, as well as potential responsibility for the explosion. 6. On 3 October 2011 the investigator submitted an extensive report of over 600 pages to the then President of the Republic (“the President”), the President of the House of Representatives and the Attorney-General. In this, he stressed that, as an investigator appointed under the relevant law, he did not constitute a disciplinary or judicial authority, nor did he act as a coroner. His duties were purely investigative, and his findings and recommendations were not binding. He could not determine or establish legal or criminal responsibility. Any decisions in respect of possible criminal responsibility leading to a prosecution lay exclusively within the competence of the Attorney-General under Article 113 of the Constitution, following a police investigation in accordance with his instructions (see paragraph 17 below). Decisions as to actual criminal responsibility lay exclusively with the courts. He observed that, in his investigation, he had mainly dealt with possible State and/or political responsibility (πολιτειακές και/ή πολιτικές ευθύνες). He was of the opinion, however, that although he could not determine or establish criminal responsibility, he had the right and obligation to express general views on the matter. 7. The investigator, giving detailed reasons for his decision, concluded that both the Minister of Defence and the Minister for Foreign Affairs had very serious responsibilities, both statutory (θεσμικές) and personal. However, he found that the main responsibility lay with the President, who was the head of the State and the Government. The President bore the greatest responsibility for the inadequacy (ανεπάρκεια), negligence and remissness (ολιγωρία) that had been shown, and had failed to take care of or at least take basic measures to ensure the security of the citizens of the Republic of Cyprus, and in particular that of the soldiers and firemen in question. The fate of the cargo had been decided by the executive, which, headed by the President, had completely failed to take the necessary measures to handle the matter, including keeping the cargo safe in Cyprus. The investigator pointed out that the President, over and above his state office and his institutional capacity (πέραν του πολιτειακού του αξιώματος και της θεσμικής του ιδιότητας), had undertaken to deal with the dangerous cargo himself, had had ultimate control over it and had been responsible for taking important decisions on the subject. The investigator also emphasised and explained that he referred not only to the President’s statutory and ex officio (θεσμική και εξ’αξιώματος) political responsibility, but also his significant personal responsibility for the tragic event and its consequences. 8. His comments concerning criminal aspects were general and did not attribute criminal responsibility to any particular person. He expressed the view that the Attorney-General had a duty to examine the possibility that a number of criminal offences might have been committed, including the offences of manslaughter and causing death by reason of a rash, reckless or dangerous act (πρόκλησης θανάτου λόγω αλόγιστης, απερίσκεπτης ή επικίνδυνης πράξης) under sections 205 and 210 of the Criminal Code (Cap. 154). 9. The applicants submitted that the Attorney-General had publicly stated that the report would be taken into consideration in the relevant police investigations, and that such investigations had in fact been initiated in accordance with his instructions. According to the applicants, the relevant police reports were handed to the Attorney-General towards the end of 2011 or the beginning of 2012, but they contained no reference to the President. 10. By a letter dated 11 November 2011 the applicants’ lawyer requested that the Attorney-General seek leave from the Supreme Court to lift the President’s immunity from criminal prosecution. It appears that a similar request had already been made to the Attorney-General by the families of some of the other victims. In the above letter, the applicants’ lawyer expressed the view that the relevant acts and omissions of the President had constituted the offence of manslaughter and had been committed during his term of office and in the exercise of his functions, and not in his private capacity, as alleged in the request made by the other families. It appears that both requests remained unanswered. 11. As the Attorney-General did not take the steps requested, on 14 February 2012 separate applications were filed by the applicants (application no. 3/2012) and the relatives of other victims (applications nos. 1/2012 and 2/2012) under the relevant procedural rules (Rule 15 of the Supreme Constitutional Court Rules of 1962; see paragraph 20 below) for leave to commence proceedings in the Supreme Court for the interpretation under Article 149(b) of the Constitution of certain alleged ambiguities in the Constitution. In the applicants’ application and in application no. 2/2012, those ambiguities concerned the interpretation of the allegedly vague and imprecise terms “offence involving dishonesty” and “offence involving moral turpitude” in Article 45 § 3 of the Constitution, as well as “any offence committed by him [the President of the Republic] in the execution of his functions” in Article 45 § 5 of the Constitution (see paragraphs 18-20 below), and the conflicting interpretation by the applicants and the Attorney-General concerning the possibility of the President being criminally prosecuted before the end of his mandate for his acts and omissions in his handling in general of the matter of the dangerous explosives. As regards the remaining application (no. 1/2012), this focused on a number of disagreements with the Attorney-General as to the provisions of Article 45 and its alleged vagueness. 12. The applications were heard together by the Supreme Court (Full Bench), which rejected them on 29 June 2012. 13. In its decision, the Supreme Court observed that the applicants maintained that the terms “offence involving dishonesty” and “offence involving moral turpitude” included manslaughter, and that they relied on alleged statements by the Attorney-General that the above terms did not cover this offence. The Attorney-General, however, denied that such statements had any legal consequence, even if they had been made. He could not remember making them. It was also admitted that the letters to him on this point from the plaintiffs had never been answered. The question which arose was whether, even if the Attorney-General had made such statements, this disagreement would constitute a “difference of opinion” within the meaning given to this term by the relevant jurisprudence (such a difference being a prerequisite for the Supreme Court’s jurisdiction under Article 149(b) of the Constitution). The Supreme Court considered that this was not the case. It stated that it was not possible for any citizen who disagreed with another person or an authority, by means of only one simple disagreement, to create a “difference of opinion” which would satisfy the relevant provisions of the jurisprudence. Accepting such a position, as proposed by the applicants in the applications before it, would amount to recognising in every case an actio popularis. Moreover, accepting to undertake to interpret the Constitution in the case would simply and solely be a decision on a difference of opinion which constituted a theoretical question, since it could not lead to any consequence. If and when the Attorney-General decided to prosecute the President, only then would it be possible to raise the question of interpretation, and it would then be the duty of the Supreme Court, within the framework of the appropriate procedure, to judge and decide on the content, meaning and legal consequences and effects of the relevant Constitutional provisions. Otherwise, it was not the duty of the Supreme Court to solve theoretical problems and questions which would not themselves have legal consequences. In view of its conclusion about the non-existence of a “difference of opinion”, the Supreme Court stated that there was no need to rule on the other preconditions which needed to be satisfied in order for the leave sought to be given. 14. In the meantime, on 12 March 2012 the Attorney-General had brought criminal proceedings (case no. 4904/2012) against six high-ranking officials before the Larnaca Assize Court: the former Minister for Foreign Affairs, the former Minister of Defence, the former Deputy Commander of the National Guard, the Commander of the Fire Service, the Deputy Commander of the Fire Service (Διευθυντής της Πυροσβεστικής Υπηρεσίας και Αναπληρωτής Διευθυντής της Πυροσβεστικής Υπηρεσίας), and the Chief of the Special Unit for Disaster Response (Ε.Μ.Α.Κ.-Ειδική Μονάδα Αντιμετώπισης Καταστροφών) (“the first, second, third, fourth, fifth and sixth defendants”). They were charged with manslaughter and causing death by reason of a rash, reckless or dangerous act under sections 205 and 210 of the Criminal Code. They each faced separate charges. 15. On 9 July 2013 the Larnaca Assize Court gave judgment. The first and third defendants were acquitted; the second defendant was found guilty of both offences and was sentenced to five years’ imprisonment; the remaining defendants were found guilty of the second offence pursuant to section 201 of Cap. 154, but were acquitted of the remaining charges. They received a two-year sentence of imprisonment. 16. The second, fourth, fifth and six defendants lodged appeals against their conviction and sentence before the Supreme Court (appeal nos. 145/2013, 154/2013-156/2013). The Attorney-General also filed appeals in so far as the first-instance judgment concerned the first, second, and fourth to sixth defendants (appeal nos. 157/2013-163/2013). On 19 December 2014 the Supreme Court dismissed the appeals lodged by the second, fifth and sixth defendants and the corresponding appeals of the Attorney-General, as well as an appeal lodged by the Attorney-General concerning the acquittal of the first defendant. Further, it upheld the appeal of the fourth defendant against his conviction, acquitting him of all charges. Consequently, it dismissed the appeals against his conviction and sentence. 17. Under the Constitution, the Attorney-General is an independent officer of the Republic (Article 112). Article 113 § 2 of the Constitution provides that: “The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings of an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under him and in accordance with his instructions.” 18. Pursuant to Article 45 of the Constitution, the President enjoys immunity from criminal prosecution during his term of office. However, this is not absolute, the exceptions being high treason and offences involving dishonesty or moral turpitude. The above-mentioned provision provides as follows: “1. The President or the Vice-President of the Republic shall not be liable to any criminal prosecution during his term of office except under the provisions of this Article. 2. The President or the Vice-President of the Republic may be prosecuted for high treason on a charge preferred by the Attorney-General and the Deputy Attorney-General of the Republic before the High Court upon a resolution of the House of Representatives carried by a secret ballot and a majority of three-fourths of the total number of Representatives: Provided that no such resolution shall be taken and no item shall be entered on the agenda or debated in the House of Representatives in connection therewith unless the proposal for such resolution is signed by at least one-fifth of the total number of Representatives. 3. The President or the Vice-President of the Republic may be prosecuted for an offence involving dishonesty or moral turpitude upon a charge preferred by the Attorney-General and the Deputy Attorney-General of the Republic before the High Court with the leave of the President of the High Court. 4. (1) The President or the Vice-President of the Republic upon being prosecuted under paragraph 2 or 3 of this Article shall be suspended from the performance of any of the functions of his office and thereupon the provisions of paragraph 2 of Article 36 shall apply. (2) The President or the Vice-President of the Republic on any such prosecution shall be tried by the High Court; on his conviction his office shall become vacant and on his acquittal he shall resume the performance of the functions of his office. 5. Subject to paragraphs 2 and 3 of this Article the President or the Vice-President of the Republic shall not be liable to prosecution for any offence committed by him in the execution of his functions but he may be prosecuted for any other offence committed during his term of office after he ceases to hold office. 6. No action shall be brought against the President or the Vice-President of the Republic in respect of any act or omission committed by him in the exercise of any of the functions of his office: Provided that nothing in this paragraph contained shall be construed as in any way depriving any person of the right to sue the Republic as provided by law.” 19. Under Article 149(b) of the Constitution, in the event of ambiguity, the Supreme Court has exclusive jurisdiction to interpret the Constitution in any manner, due regard being had to the letter and spirit of the Zurich Agreement of 11 February 1959 and the London Agreement of 19 February 1959. 20. Pursuant to Rule 15(2)(b) of the Supreme Constitutional Court Rules of 1962, as applied by the Supreme Court, when a reference is not made by a court, proceedings under, inter alia, Article 149(b) of the Constitution shall be commenced “with the prior leave of the Supreme Court, or any two judges acting in agreement, applied and obtained for the purpose, and in such manner as it may be directed upon granting such leave”.
| 0 |
test
|
001-156518
|
ENG
|
EST
|
CHAMBER
| 2,015 |
CASE OF SÕRO v. ESTONIA
| 3 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicant was born in 1948 and lives in Tartu. 6. Estonia lost its independence as a result of the Treaty of Non-Aggression between Germany and the Union of Soviet Socialist Republics (also known as “Molotov-Ribbentrop Pact”), concluded on 23 August 1939, and the secret additional protocols to it. Following an ultimatum to set up Soviet military bases in Estonia in 1939, a large-scale entry of the Soviet army into Estonia took place in June 1940. The lawful government of the country was overthrown and Soviet rule was imposed by force. Interrupted by the German occupation in 1941-1944, Estonia remained occupied by the Soviet Union until its restoration of independence in 1991 (see Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006I, and Penart v. Estonia (dec.), no. 14685/04, 24 January 2006). After the independence of the Republic of Estonia was restored on 20 August 1991, Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over the Soviet armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonia and the conditions under which they could reside temporarily in Estonia. Under the terms of the treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in active service with the Russian armed forces (see Nagula v. Estonia (dec.), no. 39203/02, ECHR 2005XII (extracts); Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006; and Dorochenko v. Estonia (dec.), no. 10507/03, 5 January 2006) . 7. After the regaining of independence Estonia carried out comprehensive legislative reforms for transition from a totalitarian regime to a democratic system and for rectifying injustices. On 28 June 1992 the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) and the Constitution of the Republic of Estonia Implementation Act (Eesti Vabariigi põhiseaduse rakendamise seadus) were adopted by a referendum. The Constitution Implementation Act provided that until 31 December 2000, persons standing in elections or seeking certain high positions, such as those of ministers or judges, or any other elected or appointed position in an agency of the national government or a local authority, had to take a written oath of conscience (süümevanne) affirming that they had not been in the service or agents of security, intelligence or counterintelligence services of countries which had occupied Estonia. On 8 July 1992 the Riigikogu (the Estonian Parliament) adopted the Procedure for Taking Oath of Conscience Act (Seadus süümevande andmise korra kohta). 8. In order to ensure national security of the Republic of Estonia, persons having been in the service of or having collaborated with the security, intelligence or counterintelligence services of the countries which had occupied Estonia, had to be ascertained. Such a security authority was first and foremost the Committee for State Security of the USSR and its local arm, the Estonian SSR Committee for State Security (also known as “the KGB”). However, the most sensitive of the KGB materials were removed from Estonia and the government committee set up by the Estonian authorities to liquidate the KGB managed to get hold of documents of mainly historical value. 9. On 10 March 1994 the Riigikogu adopted the Procedure for the Collection, Recording, Preservation and Use of the Materials of Other States’ Security and Intelligence Authorities which Have Operated in Estonia Act (Eestis tegutsenud teiste riikide julgeoleku- ja luureorganite materjalide kogumise, arvelevõtmise, säilitamise ja kasutamise korra seadus) which established the obligation to hand over for preservation to the Estonian National Archives the materials in question. 10. On 1 June 1994 the Riigikogu Temporary Committee for the Investigation of the Activities of the Security and Intelligence Authorities of the USSR and Other States in Estonia submitted to the Riigikogu a draft decision proposing the Government to initiate, by 15 September 1994 at the latest, a Draft Act on the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia. On 28 June 1994 the Riigikogu adopted the proposed decision. 11. As the Government did not submit the Draft Act by the time requested by the Committee, on 5 December 1994 the Riigikogu Temporary Committee itself decided to initiate the Draft Act in issue. 12. On 6 February 1995 the Riigikogu passed the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act (Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus) (“the Diclosure Act”). According to the Disclosure Act, the persons in question were to be registered by the Estonian Internal Security Service (Kaitsepolitseiamet). Information about such persons’ service or co-operation was to be made public unless they themselves made a pertinent confession about that to the Estonian Internal Security Service within one year from the entry into force of the Disclosure Act. The Disclosure Act entered into force on 28 March 1995. 13. According to the information provided by the Government, 1,153 persons submitted a confession under the Disclosure Act by 1 April 1996. For the first time, names of the persons subject to disclosure were published in Riigi Teataja Lisa (Appendix to the State Gazette) on 30 January 1997. From 1997 until 2009, on thirteen occasions, the names of a total of 647 persons were published in Riigi Teataja Lisa. Among them there were 42 drivers, of whom at least seven had advanced to higher positions during their career in the KGB. 14. On 18 June 2002 the Riigikogu made a statement declaring the Soviet communist regime which in its view committed crimes – including genocide, war crimes and crimes against humanity – during the occupation, as well as the bodies of the Soviet Union, such as NKVD, NKGB, KGB and others, which forcefully executed the regime, and their activities to be criminal. The statement emphasised that this did “not mean collective liability of their members and employees. Each individual’s liability [was determined by] his or her specific activities, an ethical assessment of which should be made first and foremost by each person himself or herself”. Riigikogu also noted that the threat of the repetition of such crimes had not disappeared and that the regimes relying on extremist ideologies threatened the World peace and free development of the people until their criminal nature was fully disclosed and condemned. 15. On 17 December 2003 the Riigikogu passed the Persons Repressed by Occupying Powers Act (Okupatsioonirežiimide poolt represseeritud isiku seadus) aimed at alleviating the injustices committed against persons who were unlawfully repressed by the States that occupied Estonia between 16 June 1940 and 20 August 1991. Certain pension rights and other benefits were foreseen to the persons who fell under the Act in question. 16. From 1980 to 1991 the applicant was employed as a driver by the Committee for State Security. 17. On 27 February 2004 the applicant was invited to the Estonian Internal Security Service and presented with a notice according to which he had been registered pursuant to the Disclosure Act. It was stated in the notice that a pertinent announcement would be published in Riigi Teataja Lisa and the text of the announcement was set out. Furthermore, it was mentioned in it that the person concerned had the right, within one month of the receipt of the notice, to have access to the documents proving his or her links to the security, intelligence of counterintelligence organisations, and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The applicant signed a document stating that he had received the notice. 18. According to the applicant his request to be shown the material gathered in respect of him was not met whereas he was told that he could lodge a complaint against the notice with an administrative court within one month. According to the Government the applicant’s argument, that he could not examine the documents on which the notice had been based, was declaratory, unproved and wrong. 19. On 16 June 2004 an announcement was published both in the paper and Internet version of Riigi Teataja Lisa. It read as follows: Hereby the Estonian Internal Security Service announces that pursuant to section 5(1) of the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act the Estonian Internal Security Service has registered the following persons. ... MIHHAIL SÕRO (born on 12.12.1948, Estonia, Põlva County, Värska rural municipality) – AS Tarbus bus driver 1. Committee for State Security of the Estonian SSR[,] Tartu department – driver[,] 12.08.1980 – 1989 2. Committee for State Security of the Estonian SSR[,] Põlva branch – driver[,] 1989 – 05.11.1991” 20. In the Internet version, which had legal force equal to that of the paper version, the announcements of the Estonian Internal Security Service were published under the following section title: “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa.” 21. The applicant raised the issue with the Chancellor of Justice (Õiguskantsler) who, having analysed the matter and sought additional information from the Estonian Internal Security Service, addressed the Riigikogu with a report, dated 12 July 2005, where he concluded that the Disclosure Act was unconstitutional in so far as all employees of the security and intelligence organisations were made public with no exception made in respect of the personnel who merely performed technical tasks not related to the main functions of the organisations. He further found that the Disclosure Act was unconstitutional in that the person’s place of employment at the time of the publication of the announcement was also made public. 22. The Constitutional Law Committee of the Riigikogu disagreed with the assessment of the Chancellor of Justice. 23. After the applicant had again addressed the Chancellor of Justice, the latter replied by a letter of 31 January 2006 that he had not deemed necessary to initiate constitutional review proceedings in respect of the Disclosure Act. The Chancellor of Justice had in the meantime been briefed by the Estonian Internal Security Service about the practice according to which the persons who had performed merely technical tasks were not being made public. 24. On 20 June 2006 the applicant lodged a complaint with the Tallinn Administrative Court. He asked that the court declare the text published in Riigi Teataja Lisa unlawful and oblige the Estonian Internal Security Service delete the word okupant (occupier, invader) and add the word endine (former). In that way the information that he had been a foreign invader occupying Estonia from 1980-1991 could be disproved. He noted that he had never been accused of or provided with any evidence showing that he had participated in the forceful occupation of the Estonian territory as a member of the armed forces of a foreign country or participated in the exercise of the occupation powers. He disagreed having been associated with the crimes committed by the employees of security organisations of the Nazi Germany and the Stalinist regime and argued that a person could only be held individually accountable for his own acts but that principle was ignored by the Disclosure Act. He asserted that he had only worked for the Committee for State Security as a driver and knew nothing about gathering information. As a result of the publication of the announcement the applicant had lost his work and he had been a victim of groundless accusations by third parties. He was being called an occupier (okupant) and an informant (koputaja) and it was being said that “he [was] not a proper man” if the Estonian Internal Security Service dealt with him. 25. At the Tallinn Administrative Court hearing on 15 January 2007 the applicant submitted, inter alia, that he had in the meantime changed his employment but was, at the time of the court hearing, back in the bus company where he had previously worked. 26. By a judgment of 29 January 2007 the Tallinn Administrative Court dismissed the applicant’s complaint. It noted that the applicant had failed to contest the notice which he had been presented with by the Estonian Internal Security Service on 27 February 2004. Accordingly, the notice had been made public pursuant to the Disclosure Act. The Administrative Court concluded that the publication of the announcement had become possible because of the applicant’s inaction as he had failed to contest the notice and disprove the information it contained. The information contained in the published announcement corresponded to the information which the applicant had previously been presented with. 27. The Administrative Court further verified that in the Internet version of Riigi Teataja Lisa the announcements of the Estonian Internal Security Service were published under the section title “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa” and, thus, the notion “former” (endine) also applied to the announcement concerning the applicant. Furthermore, the word “occupier” (okupant) had not been used in respect of the applicant. The Administrative Court did not establish that the publication of the announcement was unlawful or violated the applicant’s rights. 28. The Administrative Court found that the applicant’s request for the review of the constitutionality of the Disclosure Act would have been pertinent in case he would have contested the notice issued on 27 February 2004. The applicant had been informed that pursuant to the Disclosure Act he had the right, within a month, to familiarise himself with the documents and contest the information contained in the notice before the Estonian Internal Security Service or a court. Thus, the law had given him a possibility to immediately counter the information gathered. If a court then would have reviewed the issue of the constitutionality of the Disclosure Act, the Estonian Internal Security Service would have been obliged to proceed with the publishing or to refrain from it, depending on the results of the review. In the circumstances at hand, however, the announcement had been published and the notice no. 695 of 27 February 2004, which it had been based on, was lawful. 29. The Administrative Court also noted that the applicant had not produced any evidence to disprove the information published. The applicant himself had confirmed that he had worked as a driver of the former Committee for State Security of the Estonian SSR. 30. The applicant appealed arguing that after the publication of the announcement he had become a victim of groundless mocking and had to quit his work. He had sustained substantial pecuniary and non-pecuniary damage. He pointed out that the notice of 27 February 2004 had not caused him any negative results. Rather, what had been of importance was the publication of the announcement in Riigi Teataja Lisa on 16 June 2004. He maintained that in the published announcement he had been depicted as an occupier of the Estonian State. It remained unclear, however, which acts he had committed against Estonia and in what way these acts had been criminal. His work as a driver of the Committee for State Security had been of a merely technical nature and had in fact not been directed against the Estonian State. 31. By a judgment of 22 November 2007 the Tallinn Court of Appeal dismissed the appeal. The Court of Appeal considered that the fact that a person did not contest the initial notice before its publication did not deprive him of a right to lodge a complaint against the publication of the announcement in Riigi Teataja Lisa. It also considered that the implementation of the Disclosure Act could in some circumstances involve indirect interference with a person’s fundamental rights caused by the acts of third parties as the person’s reputation could be damaged as a result of the disclosure of his relations with the Soviet security organisations. However, in the case in question the interference was in conformity with the Constitution. 32. The Court of Appeal found as follows: “10. ... The Chancellor of Justice established in his proceedings that according to the defendant’s administrative practice information about the merely technical employees was not, by way of exception, disclosed. According to the assessment of the Court of Appeal, the [applicant] cannot demand an exception to be made in respect of him. According to the assessment of the defendant, drivers of the security and intelligence organisations were related to the performance of the organisations’ substantial tasks ... The court has no ground to take a different position in this question relating to the security risks. The Estonian State cannot establish decades later with absolute certainty whether a specific driver performed merely technical or also substantial tasks. Thus, one has to proceed from the possibility that a KGB driver may also pose a potential security risk and the disclosure of the information about him may be in the public interests. Therefore, it is proportionate to apply the [Disclosure Act] in respect of the persons who worked as drivers in the security or intelligence organisations. Thereby account must be taken of the fact that the publication of the announcement and the indirect interferences caused by that were not inevitably foreseen by law; the [applicant] could have prevented these consequences by making a confession pursuant to ... the [Disclosure Act].” 33. In respect of the applicant’s complaint about the use of the language in the text of the announcement the Court of Appeal noted that the word “to occupy” had not referred to the applicant but rather to a State (former Soviet Union). Nor had the applicant been treated as a person co-operating with the Committee for State Security (an informant or a sneak) but rather as its staff member. In the announcement the period of the applicant’s employment had also been indicated. There was nothing to imply that he was accused of continuous contact with an intelligence or security organisation of a foreign country. The defendant was not responsible for arbitrary conclusions that third parties may have drawn from the announcement. Lastly, the Court of Appeal considered that it was proportionate to publish the current places of work of the persons concerned, inter alia, in order to avoid confusion in the public that might otherwise arise in respect of persons with identical or similar names. 34. On 14 February 2008 the Supreme Court declined to hear an appeal lodged by the applicant.
| 1 |
test
|
001-153709
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,015 |
BOZKURT v. TURKEY
| 4 |
Inadmissible
|
András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
|
1. The applicant, Mr Mehmet Bozkurt, is a Turkish national, who was born in 1975 and is currently serving a prison sentence. 2 3. On 25 January 2007 as the applicant, whilst in prison, was talking to his brother over the phone in Kurdish, the prison guards intervened, ending the conversation without any warning. 4. On 27 January 2007 the applicant filed a criminal complaint with the Erzurum Public Prosecutor and accused the prison authorities of abuse of their office. 5. Following an investigation, the Erzurum Public Prosecutor held that the applicant’s brother’s name was not included in the list of names of his relatives who did not speak Turkish. It was also noted that the applicant had only indicated the names of his mother and sister in that list. The prosecutor further recalled that pursuant to Rule 88 § 2 (p) of the Regulation on prison management and execution of sentences, in principle all telephone conversations had to be conducted in Turkish unless the convicted prisoner did not speak Turkish. Should the person with whom the prisoner wished to speak not understand Turkish, an inquiry would be carried out to verify that information. Accordingly, on 14 February 2007 the Erzurum Public Prosecutor decided that the prison authorities had acted in line with domestic legislation. 6. The applicant filed an objection with the Oltu Assize Court, seeking to have that decision quashed. 7. On 15 May 2007 the Oltu Assize Court upheld the decision of the Erzurum Public Prosecutor. 8. A full description of the domestic law and practice at the relevant time may be found in Nusret Kaya and Others v. Turkey (nos. 43750/06, 43752/06, 32054/08, 37753/08 and 60915/08, §§ 22-25, ECHR 2014 (extracts)). 9. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey (dec.), no. 44013/07, §§ 9-17, 27 May 2014.
| 0 |
test
|
001-148654
|
ENG
|
NLD
|
CHAMBER
| 2,014 |
CASE OF GEISTERFER v. THE NETHERLANDS
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)
|
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The applicant was born in 1962 and lives in Amsterdam. 6. The applicant was suspected of membership of a crime ring organised around one H., a person widely known to have amassed criminal convictions for serious crimes; of complicity in extortion; and of possession of an illegal firearm. 7. On 30 January 2006 the applicant was arrested. On 2 February 2006 he was taken into initial detention on remand (bewaring) for fourteen days by order of an investigating judge of the Haarlem Regional Court (rechtbank). The order included the following grounds: “(post alia) Considering in addition that it appears that there is a serious reason of public safety requiring the immediate deprivation of liberty; Considering in this connection: that there is a suspicion of a [criminal] act which, according to the law, carries a maximum sentence of imprisonment of twelve years or more and that act has caused serious upset to the legal order (een feit waarop naar de wettelijke omschrijving een gevangenisstraf van twaalf jaren of meer is gesteld en de rechtsorde ernstig door dat feit is geschokt); that there is a serious likelihood (dat er ernstig rekening mee moet worden gehouden) that the suspect will commit a crime (misdrijf) by which the health or safety of persons will be endangered, since the framework of the suspicion encompasses the display of aggressive and unrestrained behaviour by the suspect; that detention on remand is necessary in reason for discovering the truth otherwise than through statements of the suspect; ...” 8. On 14 February 2006 the applicant was taken into extended detention on remand (gevangenhouding) for thirty days by order of the Haarlem Regional Court following a hearing in camera. This decision stated the following grounds: “considering that the Regional Court finds, after examining the case, that the suspicion, indications and grounds which have led to the order for the suspect’s initial detention on remand still obtain; considering that the existence of these grounds is borne out by the conduct, facts and circumstances stated in the order for the suspect’s initial detention on remand, given on 2 February 2006, which the Regional Court adopts as its own; ...” 9. The Regional Court renewed its order for a further term of thirty days on 11 April 2006. The applicant appealed against this decision; his appeal was dismissed by the Amsterdam Court of Appeal (gerechtshof) on 17 May 2006. 10. The order for the applicant’s extended detention on remand was renewed periodically by the Regional Court until its suspension. 11. On 7 May 2007 the Haarlem Regional Court ordered the suspension (schorsing) of the applicant’s detention on remand with effect from noon the following day. The reason stated was the following: “The Regional Court is of the view that the serious reasons and grounds stated in the order for extended detention on remand (bevel tot gevangenhouding) still exist and that Article 67a § 3 of the Code of Criminal Procedure (Wetboek van Strafvordering) is not yet applicable. Even so, the Regional Court considers it appropriate, in view of the circumstance that it has today ordered the suspension of the trial until a date next September, to decide as follows as to the execution of the detention on remand. The suspension of the trial is directly linked with the state of health of a co-suspect and the Regional Court’s decision in principle (uitgangspunt) to pursue the proceedings against all suspects simultaneously. That being so, and also in light of the length of the detention on remand until today, the Regional Court is led to suspend the detention on remand until the day on which the trial of the suspect will be pursued.” The co-suspect referred to was H., who needed time to recover from heart surgery which he had undergone in detention before his trial could resume. 12. The suspension of the applicant’s detention on remand was made subject to the following conditions: “1. that the suspect not seek to evade the execution of the detention on remand order if its suspension should be terminated; 2. that the suspect, should he be sentenced to a custodial sentence other than [in lieu of a fine or a community service order] for the criminal act for which the detention on remand was ordered, not seek to evade its execution; 3. that the suspect not perpetrate a new criminal act during the time in which his pre-trial detention shall be suspended; 4. that the suspect attend the remainder of his trial; 5. that the suspect immediately obey any summons from the police, the prosecution or the court (politie en justitie); 6. that the suspect not have any direct or indirect contact with (any one of) his co-suspects or the witnesses ... 7. that the suspect hand in his passport and/or his identity card ... 8. that the suspect shall report in person twice a week (zich tweemaal per week dient te melden) at times and places indicated to him by the public prosecution service (openbaar ministerie).” 13. On 20 August 2007 the applicant submitted a request for his detention on remand to be lifted altogether (opheffing van het bevel tot voorlopige hechtenis). 14. On 22 August 2007 the Haarlem Regional Court gave a decision in the following terms: “This court’s decision of 7 May 2007 suspended the suspect’s pre-trial detention in connection with the special circumstances mentioned in that decision, which did not concern the suspect himself, which entailed the interruption of the trial for a considerable time. The Regional Court has allowed the interest of the suspect in awaiting the resumption of his trial in freedom to prevail over the prosecution interest in keeping the suspect in detention on remand on the grounds stated in the order for extended detention on remand only because of that special situation and only for as long as that situation might continue. As the suspect’s trial will resume before long and the said special situation will from then on no longer exist, there will, from then on, be no reason to allow the suspension of the suspect’s detention on remand to continue. The Regional Court takes the view that the serious reasons and grounds, with the exception of the ground related to the investigations, still exist and considers that Article 67a § 3 [of the Code of Criminal Procedure] is not yet applicable. The mere fact stated by the suspect’s counsel that since the suspect’s liberation there has been no large-scale public protest and that the suspect has complied unreservedly (onverkort) with the suspension conditions do not mean that there is no longer any ‘serious upset to the legal order’ within the meaning of Article 67a § 2 under 1 or the danger of an offence within the meaning of Article 67a § 2 under 2. Considering also the nature of the first-mentioned ground – briefly, an offence carrying a twelve-year sentence that has caused serious upset to the legal order –, the Regional Court does not consider the arguments submitted sufficient reason to suspend the detention on remand, as is requested in the alternative as a less intrusive way of using this means of coercion (minder bezwarende wijze van toepassing van dit dwangmiddel). ...” No appeal was possible against this decision. 15. The trial resumed on 25 September 2007. The applicant, through his counsel, made a request at the hearing for the detention on remand order to be lifted, or in the alternative, for the suspension to be continued. He argued that his release had not caused any public outcry. 16. According to the official record (proces-verbaal) of the hearing, the Regional Court gave a refusal, stated by its president in the following terms: “The Regional Court refers to its decision of 7 May last. At the time, the medical situation of the co-suspect H., the Regional Court’s desire to consider the cases together, and the fairly long duration of the detention on remand led to the decision to suspend the detention on remand until such time as the trial would resume. As soon as these reasons cease to apply the Regional Court must consider the situation afresh. This does not mean that the Regional Court will look back to see how well things have gone and what ripples your release has caused (hoeveel rumoer er over uw vrijlating is ontstaan), but that it will consider whether the serious reasons and grounds still exist. It takes the view that such is the case. As regards the alternative request, the Regional Court takes the view that the prosecution interest would not be served in sufficient measure if you could, within the framework of a suspension of your detention on remand, await the outcome of your criminal case in freedom. Your personal interest in awaiting the determination of your case in freedom does not outweigh the prosecution interest. Your detention on remand should therefore continue, given also that there is no question at the present time of applying Article 67a § 3 of the Code of Criminal Procedure. The president stresses that the Regional Court will continue to consider ex officio whether it is necessary for the detention on remand to continue, and whether there may be grounds to order a variant as regards the modalities of its execution. The Regional Court dismisses both the principal and the alternative requests.” 17. The applicant was taken back into detention on remand on 27 September 2007. 18. On 15 November 2007 the applicant’s counsel submitted a further request for the lifting or, in the alternative, the suspension of the detention on remand order. This too was refused. 19. On 4 December 2007 the Regional Court lifted the applicant’s detention on remand. The decision was in the following terms: “That the Regional Court, sitting in camera, has come to take the view that serious reasons and grounds referred to in the order for extended detention on remand still exist, but that at this point Article 67a § 3 of the Code of Criminal Procedure leads the Regional Court to take the appertaining decision.” 20. On 21 December 2007 the Regional Court convicted the applicant and sentenced him to eighteen months’ imprisonment. 21. The applicant appealed. On 3 July 2009 the Amsterdam Court of Appeal quashed the first-instance judgment on technical grounds. Convicting the applicant afresh, it sentenced him to eighteen months’ imprisonment, six months of which was suspended. 22. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court, which dismissed the appeal on 12 October 2010.
| 1 |
test
|
001-140652
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,014 |
ÖZTÜRK v. TURKEY
| 4 |
Inadmissible
|
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić
|
1. The applicant, Mr Atalay Öztürk, is a Turkish national who was born in 1976 and is currently serving a prison sentence in Muğla prison. He was represented before the Court by Ms Y. Kavak Kılınç, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 14 November 2005 at 1.05 a.m. the applicant got involved in a bar brawl which resulted in the death of U.K. The applicant was also injured during the incident. Subsequently, he absconded for a short period of time. 4. On the same date, at 9.17 a.m., the applicant called the police and introduced himself as U.K.’s murderer. The transcript of the telephone conversation was reproduced in the incident report (ihbar kayıt tutanağı) made by the police superintendent. It revealed that the applicant had expressed his wish to surrender but had been concerned about the reaction of the deceased’s relatives. 5. Thereafter, at an unspecified time, the applicant surrendered to the police. He was subsequently hospitalised under police guard for the injuries he had sustained during the fight. 6. A medical report drawn up the same day indicated that the applicant had abrasions on his left eyebrow, which had probably been caused by a bullet. It was further noted that there was a bullet hole in his left wrist. 7. At 11.30 a.m. police officers arrived at the hospital and drafted a record of statement (ifade zaptı) quoting the written record of the applicant’s telephone conversation with the police. According to this document, when the applicant had called the police he had stated to the chief police officer that he had gone to the bar looking for a mobile phone that he had lost and he had seen the fight. Some people had attacked him and he had drawn his gun in self-defence. When they had tried to grab the gun from his hand, the gun had gone off accidentally during the struggle. The record of statement further revealed that subsequent to his phone call, police officers had met with the applicant in Izmir. He had then been brought to the hospital, where his left eyebrow had been sutured and his broken left arm had been encased in plaster. After being reminded of his rights, the applicant had had a telephone conversation with his lawyer and refused to make a statement to the police in the absence of his lawyer. He and his father had signed the record of statement. 8. Again on the same date, the Selçuk Investigating Judge issued a warrant for the applicant to be brought before the Selçuk Public Prosecutor following his recovery. 9. On 15 November 2005, the İzmir Investigating Judge questioned the applicant at the hospital in the presence of his lawyer. The applicant refused to make a statement, as he was still suffering from the injuries sustained in the incident. He stated that he would make defence submissions before the trial court. The judge ordered the provisional detention of the applicant in order to secure a statement from him following his discharge from the hospital. 10. On 28 November 2005, the applicant was brought before the Selçuk Public Prosecutor, when he denied the content of the record of statement. He alleged that his conversation with the police on the phone had been misunderstood and incorrectly transcribed. He added that he had not been carrying a gun at the material time. During this statement, the applicant benefited from the assistance of a lawyer. 11. On the same date, the Selçuk Investigating Judge questioned the applicant in the presence of his lawyer. The applicant submitted that there had been a struggle between him and the deceased, and that the deceased had been shot during the struggle while the applicant had been trying to take the gun from his hand. He maintained that the gun had been fired while he had been acting in self-defence. He further stated that he had not been carrying a gun at the time of the incident. After the questioning was over, the judge ordered the applicant’s pre-trial detention. 12. On 2 December 2005 the İzmir Forensic Institute issued an autopsy report, specifying that the deceased, U.K., had been shot in the head at long range. It concluded that the cause of his death had been a skull fracture, damage to the brain stem and haemorrhaging in the brain membrane resulting from the gunshot. The report also revealed that 103 mg/dl of ethyl alcohol had been found in his blood. 13. On 21 December 2005 the İzmir Public Prosecutor lodged an indictment with the assize court, charging the applicant with the intentional killing of U.K. 14. During the proceedings the assize court heard several witnesses who had been in the bar at the material time. S.O., the owner of the bar, testified that he had argued with the deceased for a while and that U.K. had drawn his gun several times during their quarrel. Thereafter the applicant had come to the bar and U.K. had begun quarrelling with the applicant and had lunged towards the applicant. S.O. had heard gunshots but had not seen the incident. 15. Another witness, V.S., stated in his initial statements to the public prosecutor and the magistrates’ court that the applicant had walked into the bar, sworn at him and the deceased and then started shooting at them. Subsequently, before the trial court V.S. testified there had been a quarrel between the applicant and the deceased. U.K. had shot towards the applicant and then the applicant had tried to take the gun from U.K. During the struggle, someone had hit V.S.’s head with a hard object and he had lost consciousness. 16. I.K. stated that the applicant had come to the bar looking for his mobile phone and a fight had broken out. U.K. had walked up to the applicant while his hand had been in his pocket. At that time, I.K. had left the bar but he had heard a gunshot from outside. He had returned, and seen the deceased lying on the ground and V.S. taking the gun from his hand. 17. A.D. testified that during the fight in the bar, U.K. had drawn his gun and fired into the air. The applicant had tried to grab it from U.K.’s hand. 18. On 6 July 2006 the İzmir Assize Court convicted the applicant of intentional homicide. 19. On 22 November 2007 the Court of Cassation quashed the firstinstance court’s judgment on procedural grounds. 20. On 8 April 2008 the assize court convicted the applicant of intentional homicide and sentenced him to twenty-five years and ten months’ imprisonment. In convicting the applicant, the court took into consideration the fact that throughout the proceedings the applicant had stated that he had not been carrying any weapon at the time of the events, and that he had been attacked with a gun and had acted in self-defence. It held that the applicant’s defence submissions were implausible, taking into account the content of the case file, the record of statement, the entirety of the case file and the preliminary submissions of V.S. The court found it established that the applicant had deliberately shot and killed U.K., having regard, among other things, to the distance between the applicant and the deceased, the number of shots fired and the circumstances of the incident. 21. On 23 July 2009 the Court of Cassation upheld the conviction. 22. The relevant domestic law and practice in force at the material time can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).
| 0 |
test
|
001-184823
|
ENG
|
UKR
|
COMMITTEE
| 2,018 |
CASE OF ANIFER v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time)
|
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 excessive length of criminal proceedings and of the lack of any effective remedy in domestic law.
| 1 |
test
|
001-155819
|
ENG
|
SMR
|
CHAMBER
| 2,015 |
CASE OF M.N. AND OTHERS v. SAN MARINO
| 2 |
Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
7. In or before the year 2009 criminal proceedings were instituted in Italy against named individuals (not including the applicants) who were charged, inter alia, of conspiracy, money laundering, abuse of a position of influence in financial trading, embezzlement, tax evasion and fraud. In particular it was suspected that Mr EMP organised, financed and managed, directly or indirectly a network of companies situated in various states (San Marino, Italy, Malta, Portugal (Madeira) and Vanuatu) which were all traceable to one source namely, San Marino Investimenti S.A. (hereinafter “S.M.I.”). According to the applicants, Mr EMP owned S.M.I.’s entire capital stock which was instrumental to the accomplishment of a series of investment and fiduciary operations (operazioni fiduciarie) the aim of which was to allow a number of Italian clients to launder money coming from illicit sources (by impeding the identification of the real source of the money entrusted to it by means of a double system of fiduciary mandates (mandati fiduciari)). The group of co-accused were suspected of having, through such network, abusively supplied investment services contrary to the legal requirements as provided in the relevant Italian law (Testo Unico Della Finanza) and of having abusively carried out financial activities without being in possession of the necessary economic and financial requisites and the relevant registration as required by Italian law (Testo Unico Bancario). 8. In the context of these proceedings, by means of a letter rogatory received by the San Marino judicial authorities on 8 May 2009, the Public Prosecutor’s office (of the Rome Tribunal) asked the San Marino authorities for assistance in obtaining documentation and carrying out searches in various banks, fiduciary institutes and trust companies (banche, fiduciare e societa’ trust) in San Marino, in accordance with Article 29 of the Bilateral Convention on Friendship and Good Neighbourhood between Italy and San Marino of 1939. 9. By a decision of 27 November 2009 (hereinafter also referred to as the exequatur decision), the ordinary first-instance tribunal (Commissario della Legge, hereinafter the Commissario), accepted the request in conjunction with the crimes of conspiracy, money laundering, aggravated fraud and embezzlement with the aim of fraud, considering that the relevant requirements for the execution of the request were fulfilled. In particular the Commissario considered that those crimes were also punishable under San Marino law. It therefore ordered, inter alia, an investigation in respect of all banks, fiduciary institutes and trust companies in San Marino. The purpose was to acquire information and banking documents (inter alia, copies of statements showing transactions and movements, cheques, fiduciary dispositions (disposizioni fiduciarie) and emails) related to a number of named current accounts in specified institutes as well as any other current account which could be traced back (riferibile) to S.M.I, held by all banks and fiduciary institutes in San Marino, which were directly or indirectly involved with the company or physical persons mentioned in this decision. In reaching that decision the Commissario bore in mind the relevant articles of the Bilateral Convention on Friendship and Good Neighbourhood between Italy and San Marino of 1939, law no. 104/2009, the European Convention on Mutual Assistance in Criminal Matters, and San Marino’s commitment to international organs such as the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) as well as Article 36 of law no. 165/05 which provides that banking secrecy cannot be held against the criminal justice authorities and Article 13 of law no. 104/2009 according to which the act of acquiring copies of documentation amounts to seizure. It gave further details as to the search and seizure operation, inter alia, that copies should be made of the documentation, that in the event that the investigation was successful the directors of the credit institute were to submit the relevant documents within twenty days to the Agency for financial investigations, who in turn would immediately transfer it, indicating the names of those involved (directly or indirectly), to enable notification. It further ordered that where data was held on electronic storage devices (supporti informatici), the collection of data from these devices should be supervised by appointed experts; and that clone copies were to be made of these storage devices, as well as back-up copies. Any means of information technology seized had to be sealed and kept in custody in appropriate places, and the removal of such seals had to be notified to the interested persons to enable them (or their lawyers) to be present. It ordered the judicial police to serve the decision upon the directors of all the banks and trust companies, to the legal representatives of the physical persons, to the directly interested persons, and to persons who were in possession, under whatever title, of the those places. It also warned that documentation obtained and forwarded could not to be used for purposes other than those linked to the criminal proceedings mentioned in the decree accepting the request made in the letter rogatory, unless the court decided otherwise following a further assessment. 10. By a note of 26 April 2010 the Commissario ordered that Italian citizens who had entered into fiduciary agreements (aperto posizioni fiduciarie) with S.M.I. (1452 in all) should be notified of the decision. It was noted that any information referring to the said citizens and transmitted to the judicial authority of the requesting state could not be used for the purposes other than the prosecution of the criminal offences mentioned in the exequatur decision (non potra essere utilizzata per fini diversi dal perseguimento degli illeciti penali di cui alle norme di legge indicate nel provvedimento di amissione della rogatoria), unless the court decided otherwise following a new assessment. 11. Following the investigation and implementation of the exequatur decision, in consequence of the last-mentioned order of the Commissario, the applicants were served with the relevant notification (M.N. on 24 January 2011, S.G. on 16 June 2011 and C.R. and I.R. on 4 February 2011). 12. On an unspecified date the applicants lodged a complaint (Article 30 of law no. 104/2009) before the judge of criminal appeals (Giudice delle Appellazioni Penali) against the Commissario’s decision concerning the seizure of documents related to them on the basis that they were not persons charged with the criminal offences at issue. They alleged a violation of the principles contained in the San Marino Declaration on Citizens’ Rights and Fundamental Principles (hereinafter “the declaration”). In particular they contended that the principle that crimes had to be punishable under the law of the requested state had not been respected, that there had been a violation of both Italian and San Marino law, and they noted the absence of the fumus delicti and of any link between the crimes at issue and the position of the applicants. Moreover, given that many such complaints by persons in similar situations had already been declared inadmissible by the domestic courts for lack of standing - them not being the persons charged and therefore not the direct victims of the seizure - the applicants further complained that Article 30 (3) of law no. 104/2009 was not compatible with the principles laid down in the Declaration, in so far as it had been interpreted as not protecting or recognising the right to lodge a complaint by anyone who was subject to coercive measures of seizure of documents (related to their interests) as a result of an exequatur decision. 13. By decisions of 25 February 2011 in respect of S.G., C.R. and I.R., and of 30 June 2011 in respect of M.N., the judge of criminal appeals declared the complaints inadmissible. The court noted that the applicants had been served with a notice of the exequatur order and had exhausted pleas available in law in that respect (hanno esperito le impugnazioni previste dalla legge). It further noted that an exequatur decision may only be challenged by a person who is involved in the investigation being carried out by the requested authority, or by a third party who is not investigated but who has been subjected to the measure. A person, who, in consequence of the investigation, is involved in any way with the activity undertaken, may not be considered as an interested person since any breach of the rights or interests of such persons, resulting from the execution of the exequatur decision, must be raised in the ambit of the Italian jurisdictions. The court considered that as established by domestic case-law it was only after the finding of admissibility of the application that a judge had to set a time-limit for submissions. For the purposes of admissibility one had to verify, amongst other things, the juridical interest of the appellant. Moreover, any constitutional complaints could give rise to an assessment of such question by the competent court (Collegio Garante), following a referral, only if the original proceedings were properly instituted, and not where, because of a lack of juridical interest of the appellant, the application was inadmissible. In the present case the appellants were not interested parties in relation to the exequatur decision, but may only have an eventual interest in the effects of such execution, and thus they did not have juridical interest to challenge the said decision. 14. In relation to the complaint of incompatibility with the Declaration, the court of criminal appeals only pronounced itself on the request made by C.R.: on 29 April 2011 it declared the complaint inadmissible as on that date no proceedings appeared to be pending. 15. The applicants appealed to the third instance criminal judge (Terza Istanza Penale) reiterating their complaints and invoking the European Convention on Human Rights and Fundamental Freedoms. In particular they noted that the Commissario’s exequatur decision had ordered the seizure of documents related to them, despite them not being linked to any of the activities mentioned in that decision or them having ever had relations with the Italian companies. Moreover, the seized documents were irrelevant for the purposes of ascertaining the existence of the crimes attributed to the accused, thus, the only purpose behind the seizure was to name the Italians who had had dealings with S.M.I. irrespective of any involvement they had had with the facts object of the letter rogatory. They further challenged the appeal decisions in so far as they were issued in breach of the rights of the defence, in particular as they were not allowed to present submissions as provided for in law, neither in respect of the challenge nor in respect of the constitutional complaint. Furthermore, the decisions had lacked reasons and made no reference to the actual position of the applicants and a lack of reasoning in respect of the rejection of the constitutional complaint was particularly detrimental as it did not allow a proper examination of the matter by the third-instance judge. 16. By decisions of 29 July 2011 filed in the registry on the same day and served on 3 August 2011 in respect of S.G., I.R and C.R., and of 27 October 2011 filed in the registry on the same day and served on 10 November 2011 in respect of M.N., the third-instance criminal judge confirmed the appeal decision in that the appellants lacked juridical interest. In consequence the appeal was inadmissible and in any event there appeared to be no violation of law tainting the impugned decision. The question of constitutional legitimacy of law no. 104/2009 was also rejected on the same ground as that put forward by the appeal court. 17. In the meantime, the applicants (except for M.N.) had lodged an objection requesting the revocation of the exequatur decision in their respect, on the basis that the documents related to them were of no relevance to the investigation. 18. By a decision of 7 September 2011, served on their lawyer on an unspecified date, the Commissario held that the objection was to be discontinued (non luogo a procedere) in view of the findings of the third-instance criminal judge. The Commissario noted that the authorities were not limited to carrying out the actions requested by the letters rogatory only in respect of persons formally charged, but could also extend such acts to third persons who were not so charged. 19. The applicants lodged a further objection requesting the Commissario to restrict the use of the seized documents. By decisions filed in the relevant registry on 19 September 2011 the Commissario held that its exequatur decision of 27 November 2009 had already applied such a limitation, indeed that decision had clearly stated that such documentation was not to be used for purposes other than those linked to the criminal proceedings mentioned in the letters rogatory, unless the court decided otherwise following a further assessment.
| 1 |
test
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001-172663
|
ENG
|
AZE
|
COMMITTEE
| 2,017 |
CASE OF SAMADBAYLI AND OTHERS v. AZERBAIJAN
| 4 |
Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election)
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Erik Møse;Yonko Grozev
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4. The applicants’ years of birth and places of residence are listed in the Appendix. 5Gahramanli and Others v. Azerbaijan (no. 36503/11, §§ 6-32, 8 October 2015). 6. The applicants were independent self-nominated or opposition candidates in the parliamentary elections of 7 November 2010 (see Appendix). All the applicants lost the elections in their respective constituencies. 7. After election day, the applicants lodged complaints with the Central Electoral Commission (“the CEC”) concerning a number of irregularities in their respective constituencies that had allegedly taken place during and/or before election day. Some of them also lodged identical complaints with the respective Constituency Electoral Commissions (“the ConECs”). They complained about various types of irregularities, including interference by public officials, illegal campaigning, obstruction and intimidation of election observers, ballot-box stuffing, repeated voting by the same individuals, irregularities in applying election ink, incorrect vote-counting procedures, inconsistencies in precinct election results records indicating a falsely inflated voter turnout, and so on. In support of their allegations, the applicants submitted various types of evidence documenting specific instances of the irregularities complained of, including statements made by election observers, video recordings and photographs. 8. The applicants who lodged a complaint with the respective ConECs did not receive any reply from them (except in applications nos. 36821/11, 37656/11, 37740/11, 41066/11 and 42360/11). All of the applicants’ complaints were examined by the CEC which, on various dates (see Appendix), issued decisions rejecting the applicants’ claims, providing reasoning similar to that in the CEC decision in Gahramanli and Others (cited above, §§ 21-26). 9. The applicants lodged further complaints with the Baku Court of Appeal and the Supreme Court which, on various dates (see Appendix), dismissed the applicants’ appeals, providing reasoning similar to that in their respective decisions in Gahramanli and Others (cited above, §§ 2732). 10. In the meantime, however ‒ and before the Supreme Court delivered its final decision concerning each complaint (except in application no. 42345/11) ‒ on 29 November 2010 the Constitutional Court confirmed the countrywide election results, including the election results in the applicants’ constituencies, as final (ibid., § 30). 11. At the material time Mr Intigam Aliyev was representing not only the applicants in the present cases, but a total of twentyseven other applicants in cases concerning the 2010 parliamentary elections and a number of applicants in other cases before the Court. 12. On 8 August 2014 criminal proceedings were instituted against Mr I. Aliyev, these being the subject of a separate application brought by him before the Court (application no. 68762/14). On 8 and 9 August 2014 the investigation authorities seized a large number of documents from Mr I. Aliyev’s office, including all the case files relating to the proceedings pending before the Court which were in Mr Aliyev’s possession, comprising over 100 applications in total. The files relating to the present applications were also seized in their entirety. The facts relating to the seizure and the relevant proceedings are described in more detail in Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 21-28, 22 October 2015). 13. On 25 October 2014 the investigation authorities returned a number of the case files concerning the applications lodged before the Court, including the files relating to the present applications, to Mr Aliyev’s lawyer.
| 1 |
test
|
001-158290
|
ENG
|
LTU
|
GRANDCHAMBER
| 2,015 |
CASE OF VASILIAUSKAS v. LITHUANIA
| 1 |
Violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege;Retroactivity;Criminal offence;Article 7-2 - Criminal offence);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
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András Sajó;André Potocki;Ann Power-Forde;Dean Spielmann;Egidijus Kūris;Guido Raimondi;Ineta Ziemele;Jon Fridrik Kjølbro;Josep Casadevall;Khanlar Hajiyev;Mark Villiger;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen;Ksenija Turković
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10. The applicant was born on 21 October 1930 and lives in Tauragė. 11. On 23 August 1939 the Soviet Union (hereafter at times referred to as “the USSR”), led by Josef Stalin, signed a non-aggression treaty with Germany, led by Adolph Hitler (“the Molotov-Ribbentrop Pact”). Under a secret additional protocol approved by the parties on the same date, as amended on 28 September 1939 and 10 January 1940, Lithuania and other Baltic States were attributed to the USSR’s sphere of interest in the event of a future “territorial and political rearrangement” of the territories of these then independent countries. After Germany’s invasion of Poland on 1 September 1939 and the subsequent start of the Second World War, the Soviet Union began exerting considerable pressure on the Governments of the Baltic States with a view to taking control of those countries pursuant to the Molotov-Ribbentrop Pact and its additional protocol. 12. Following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 15 June 1940 the Soviet army invaded Lithuania. The Government of Lithuania was removed from office, and a new Government was formed under the direction of the Communist Party of the Soviet Union, the USSR’s only political party. On 3 August 1940 the Soviet Union completed the annexation of Lithuania by adopting an act incorporating the country into the USSR, with Lithuania being named the “the Lithuanian Soviet Socialist Republic” (hereinafter referred to as “the LSSR”). In 1941 the territory was occupied by Nazi German forces. In July 1944 Soviet rule was re-established in Lithuanian territory (see Kuolelis and Others v. Lithuania, nos. 74357/01, 26764/02 and 27434/02, § 8, 19 February 2008, and also Ždanoka v. Latvia [GC], no. 58278/00, §§ 12 and 13, ECHR 2006IV). 13. A nation-wide partisan movement began in Lithuania. The goal of the entire armed and unarmed resistance was the liberation of and reestablishment of independent Lithuania. In 1949 an all-partisan organisation, the Movement of the Struggle for the Freedom of Lithuania (Lietuvos laisvės kovos sajūdis (“LKKS”)) was formed. On 16 February 1949 the organisation adopted the Declaration stating that the LKKS Council was “the highest political authority of the nation, leading the nation’s political and military struggle for freedom (aukščiausias tautos politinis organas, vadovaująs politinei ir karinei tautos išsilaisvinimo kovai)”. The Soviet repressive structures, embodied in the NKVD (People’s Commissariat for Internal Affairs, Narodnyy Komissariat Vnutrennikh Del), the MGB (Ministry of State Security, Ministerstvo Gosudarstvenoj Bezopastnosti) and other bodies, sought to suppress the resistance. The system of repressive organisations was reorganised on repeated occasions. Most of the leading and operative employees of those structures were nonLithuanians sent to Lithuania from the USSR. In the 1950s the partisan movement was suppressed by the Soviet authorities, although separate partisan formations were operating for some time until after 1953, the year in which the leadership of the LKKS was captured and murdered. 14. Lithuania regained its independence on 11 March 1990; this was officially recognised by the USSR on 6 September 1991. The Russian army left Lithuania on 31 August 1993. 15. The Government provided the Court with copies from the Lithuanian Special Archive (Lietuvos ypatingasis archyvas) of the applicant’s service file from the period when he worked for the MGB of the Lithuanian SSR. The documents are in Russian and were translated into Lithuanian by a translator from the Kaunas region public prosecutor’s office. It appears that these documents were relied upon by the prosecutor when he brought the bill of indictment against the applicant in 2001 (see paragraph 29 below). The documents disclose the following information. 16. Between 1950 and 1952 the applicant studied at the Lithuanian SSR MGB School in Vilnius. 17. On 8 April 1952 the applicant was employed as an assistant operational agent (operatyvinis įgaliotinis), and from 15 September 1952 he worked as an operational agent in the Šakiai district unit of the LSSR MGB. As of 1 July 1953 the applicant worked as a senior operational agent in the MGB and subsequently in the KGB. 18. The minutes of the Šakiai district MGB unit Communist party members’ meeting of 2 March 1953 record that the agenda of that meeting was devoted to discussing “the decisions of the USSR Central Committee, and orders from the USSR MGB and LSSR MGB as to the extermination of nationalist elements in the [Šakiai] district”. The minutes further record that a member of the Šakiai district MGB urged that in the immediate future the “bandits and nationalist underground should be eradicated”. The regional unit of the Communist party was encouraged to put more effort into enlightening the inhabitants about the “fight against the bandits and nationalist underground”. The minutes record the applicant’s view that “their [his MGB unit’s] goal was to exterminate as quickly as possible the bandits, those who help them and their contacts”. 19. It appears from the minutes of the meeting of 18 September 1953 of the Šakiai district MGB unit Communist party members, that on that occasion the applicant gave a speech about “the fight against the nationalist underground”. The applicant stated that so far he “had not succeeded in exposing all the members of the nationalist gangs in the district assigned to him”. In the applicant’s view, “if each communist, each member of his [MGB] unit, takes up his duties more thoroughly, they can obtain good results in the fight against the nationalist underground”. 20. During the meeting of 4 November 1953 of the Šakiai district MGB unit Communist party members, the applicant was described as a person who had achieved good results in his work. 21. On 23 December 1953 the applicant became a member of the Communist Party of the Soviet Union. The record of the meeting of the Šakiai district MGB unit Communist party members indicates, that the applicant’s superiors characterised him as being disciplined (disciplinuotas), being politically aware (politiškai raštingas) and having good work results. The superiors pointed out that joining the ranks of the “glorious Communist party” obliged the applicant to “raise his political awareness, study the history of the Communist party in its fight with various enemies and always be alert”. 22. In 1964 the applicant gained the qualification of a jurist at the KGB Felix Dzerzinskij Higher Institute. 23. From 1967 until he retired in 1975 on health grounds, the applicant worked as the Head of the KGB Department in the Jurbarkas district. 24. According to the applicant’s service record, during his 25 years’ service in the MGB (KGB), he was awarded, decorated or commended at least 24 times. During his service in the MGB and the KGB the applicant served up to the rank of lieutenant-colonel (papulkininkis). 25. On 2 January 1953 the applicant took part in an operation against two Lithuanian partisans, the brothers J.A. and A.A., who had been hiding in the forest in the Šakiai area. M.Ž., the applicant’s co-accused in the subsequent criminal proceedings for genocide, had provided the Soviet authorities with information about the partisans’ whereabouts. An operation to capture or liquidate the partisans had been planned. Several soldiers were involved and the applicant was part of the operation. During the attempt to apprehend them, J.A. and A.A. resisted by opening fire on the MGB officers and Soviet soldiers. The partisans were shot and killed. 26. On the day of the operation, that is, on 2 January 1953, the Head of the Šakiai district MGB drafted a report to his superior – the head of the Kaunas region MGB, wherein it was mentioned that the applicant had contributed to the success of the operation during in which “two bandits had been liquidated”, and thus deserved to be commended (užsitarnavo paskatinimą). 27. On 1 September 1953 the Head of the Šakiai district MGB wrote to the Minister of the Interior of the Lithuanian SSR, informing him that on 2 January 1953 the applicant and the MGB officers had liquidated “two members of a nationalist gang [J.A. and A.A.]”. He proposed that the applicant be rewarded for that operation. The applicant’s service file indicates that on 15 September 1953 the applicant received a commendation and was paid a premium of 500 roubles. 28. On 10 December 1971 the Chairman of the Executive Committee of the Šakiai district indicated that brothers J.A. and A.A. belonged to a “bourgeois nationalistic armed gang” during the post-war period and that in 1953 they were shot as its members. 29. After Lithuania regained its independence, the Kaunas region public prosecutor’s office started an investigation in April 2001 into the death of the brothers J.A. and A.A. In September 2001 the prosecutor charged the applicant and M.Ž. with genocide, pursuant to Article 71 § 2 of the Criminal Code then in force (see paragraph 52 below). The prosecutor found it to be established that as of 15 September 1951 the applicant had served as an operational agent in the Kaunas region Šakiai district branch of the LSSR MGB. He knew that “the LSSR MGB’s main purpose was to physically eradicate part of the Lithuanian population belonging to a separate political group (atskira politinė grupė), namely, the Lithuanian partisans, participants in the resistance to the Soviet occupation”. “The applicant had been active in fulfilling that main goal of the LSSR MGB by killing some of the inhabitants of Lithuania belonging to the aforementioned political group”. For the prosecutor, the applicant’s guilt was proved on the basis of his service record (tarnybos kortelė), the applicant’s superiors’ commendation for his persistence when executing search measures, managing the operation and personal participation when apprehending the bandits (pareikšta padėka už atkaklumą pravedant agentūrines-tyrimo priemones, vadovavimą operacijai, asmeninį dalyvavimą sulaikant banditus). The evidence examined by the prosecutor included statements by witnesses, minutes of the meetings of the Šakiai district MGB unit which were obtained from the Lithuanian Special Archive (Lietuvos ypatingasis archyvas) and the Genocide and Resistance Research Centre of Lithuania (Lietuvos gyventojų genocido ir rezistencijos tyrimo centras) and translations of those documents, which mentioned the applicant, the tasks he had been assigned with regard to the liquidation of banditry, bandits’ assistants and contact persons. Other evidence included [MGB] reports about the liquidated bandits J.A. and A.A. 30. By a judgment of 4 February 2004, the Kaunas Regional Court found that there was sufficient evidence to convict the applicant of genocide. On the basis of witness statements, written evidence provided by the Genocide and Resistance Research Centre of Lithuania and statements by the applicant and his co-accused M.Ž., the court established that J.A. and A.A. had belonged to the 37th unit of the Tauras district partisans. The trial court noted that the information in the case file allowed it to conclude that in order to compromise the partisan brothers the Soviet authorities had spread misinformation to the effect that J.A. and A.A. had deserted from the partisan unit, were hiding alone and, thereafter, had no connection with the partisans. Those accusations were untrue. In reality, the partisans, including the brothers J.A. and A.A., operated in small groups in order to avoid extermination by the Soviets. Lastly, there was no credible evidence in the case which would disprove the assertion that J.A. and A.A. “were members of the organised resistance and that they belonged to a political group”. The trial court also noted testimony by one witness that the partisan brothers had been hiding in the forest for three to four years, and that his family had given them food. 31. As to the applicant, the court noted that as of 15 September 1951 he had been working as an operational agent of the MGB of the Lithuanian SSR and “knew the main goal of that Ministry, which was to physically eradicate a separate political group, Lithuanian partisans, constituting part of the Lithuanian population”. In the MGB files the two brothers had been listed as partisans, members of the armed national underground resistance (partizanai – nacionalinio ginkluoto pogrindžio dalyviai). The court dismissed the applicant’s contention that he had not actively participated in the operation to capture or to liquidate the two partisans during which those two partisans had died. On the contrary, the applicant’s superior officer’s operational file had stated that one of the bandits had been personally eliminated by the applicant. After the operation the applicant had been admitted to the Communist party and both he and M.Ž. had received a financial reward. Most importantly, neither the applicant nor M.Ž. denied taking part in the operation to liquidate the partisans. The trial court took the view that all of the circumstances allowed the conclusion that both of the accused had participated on 2 January 1953 “in the physical extermination (killing) of inhabitants of Lithuania who belonged to separate political group (atskira politinė grupė), participants in the resistance to the Soviet occupational power, that is to say, [the applicant] took part in genocide”. 32. The Kaunas Regional Court noted that Article 3 of the Law of 9 April 1992 “On Responsibility for Genocide of Inhabitants of Lithuania” provided for the possibility of applying criminal liability for genocide retroactively. 33. The Kaunas Regional Court convicted the applicant of genocide under Article 99 of the Criminal Code (see paragraph 53 below) and sentenced him to six years’ imprisonment. The applicant was granted a suspension of his sentence on health grounds. M.Ž. was also convicted of being an accessory to genocide under the same provision of the Criminal Code. She was sentenced to five years’ of imprisonment, suspended on health grounds. The trial court also granted a civil claim by the injured party, M.B., who was the daughter of J.A. and the niece of A.A., but reserved the question of the amount of damages for separate civil proceedings. 34. Both the applicant and M.Ž. appealed against their convictions. 35. On 21 September 2004 the Court of Appeal upheld the convictions and held that the trial court’s verdict had been lawful and well-founded. The appellate court indicated that the trial court had not concluded that the applicant had personally shot one of the partisans. In fact, the applicant had been sentenced only for taking part in the operation to eradicate the partisans as representatives of a political group. The applicant himself acknowledged, and it had been proven by the witnesses’ statements and documents, that he had taken an active part in the impugned operation, that he had been responsible for M.Ž., who had shown the Soviet authorities the partisans’ hiding place, that he had been one of the officers who had surrounded the bunker, and that he had stayed with M.Ž. until the end of the operation. In passing sentence, the Court of Appeal observed that the applicant, as an operational officer of the Šakiai district MGB who had worked voluntarily for the occupying authority (MGB) “had clearly known that the goal of that institution was to physically exterminate the Lithuanian partisans, as part of the Lithuanian population (tikrai žinojo, kad šios įstaigos tikslas yra Lietuvos partizanų, kaip Lietuvos gyventojų dalies, fiziškas sunaikinimas)”. Conscious of that fact, the applicant, together with other participants in the operation, had taken part in person in the killing of the partisan brothers J.A. and A.A. Likewise, M.Ž., as an MGB agent, also understood the goals of that organisation and by providing it with information about the partisans’ whereabouts and by showing MGB the partisans’ bunker, had understood that the brothers would be exterminated. Accordingly, both the applicant and M.Ž. had acted with direct intent (tiesioginė tyčia). Lastly, the Court of Appeal found that at the time of the criminal proceedings against him the applicant had still been of the view that the Soviet authorities’ actions against the Lithuanian partisans were lawful. 36. The appellate court dismissed the argument by the applicant that the definition of genocide under Lithuanian law, pursuant to Article 99 of the Criminal Code, contradicted the definition enshrined in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter referred to as “the Genocide Convention”). The Court of Appeal noted the trial court’s conclusion that the brothers J.A. and A.A. had been exterminated for belonging to a “political group”. Whilst admitting that the definition of the crime of genocide in Article 99 of the Criminal Code also included social and political groups, and was therefore wider than that established by the Genocide Convention, the appellate court found that the addition of those groups was “reasonable and in line with reality”. The Genocide Convention did not contain specific provisions to the effect that the concept of genocide could be interpreted widely; however, neither did the Genocide Convention prohibit such an interpretation. The concept of genocide had been expanded in Criminal Codes of other countries. The appellate court further explained that “political group means people connected by common political views and beliefs and the goal to physically eradicate such a group also means genocide, because this has an intention to eradicate part of the people (politinė grupė – tai žmonės, susiję bendromis politinėmis pažiūromis ir įsitikinimais, ir siekimas tokią grupę fiziškai sunaikinti taip pat reiškia genocidą, nes siekiama sunaikinti dalį žmonių)”. The court emphasised that: “the attribution of the Lithuanian partisans, that is to say, participants in armed resistance to occupational power, to a particular “political” group, as was done in the trial court’s verdict, in essence was only relative/conditional and not very precise. The members of this group had at the same time been representatives of the Lithuanian nation, that is, the national group. The Soviet genocide was carried out precisely on the criteria of the inhabitants’ nationality-ethnicity. It follows that Lithuanian partisans could be attributed not only to political, but also to national and ethnic groups, that is to say, to the groups listed in the Genocide Convention.” 37. The Court of Appeal dismissed the applicant’s and M.Ž.’s contention that their actions were not genocide because at the time of their deaths the brothers J.A. and A.A. had not been partisans and thus could not have been considered as belonging to “a political, social or other group”: “... The complaints of the convicted V. Vasiliauskas and M.Ž. also contain allegations that during the war the brothers J.A. and A.A. had collaborated with the German occupying forces and had committed crimes. Besides, in 1947 they had deserted from the partisan squad and afterwards did not keep in touch with other partisans. Therefore, in the appellants’ view, J.A. and A.A. could not have been considered members of any political, social or other group, and actions against them could not have been considered as acts of genocide. This Chamber is of the view that these arguments have been reasonably rejected by th[is] court and have already been addressed in the judgment of conviction. Both V. Vasiliauskas and M.Ž. mention certificate no. 1767 of the Lithuanian Archive Department, dated 13 November 2001. The certificate indicates that the KGB archive contains a criminal case on J.A., and that in the indictment of that case it is written that, when Germany occupied Lithuania, J.A. joined the armed squad of white partisans; he carried weapons and took part in arrests, detention and transportation of active Soviet party members and Jews. Besides, he conducted anti-Soviet agitation and made terrorist threats against communists, which means that he has committed the crime provided for in Article 581a of the Criminal Code of the Russian Soviet Federative Socialist Republic [counter-revolutionary crime and treason of the motherland]. On 4 May 1945 J.A. escaped from prison and joined the partisan squad. As regards A.A., the certificate indicates that during the German occupation he served in the German police, and in 1944 he began living as an outlaw, joining the armed nationalist partisans’ unit. It is also indicated that in 1947 J.A. and A.A. left the partisan unit and went into hiding alone: they did not keep in touch with other partisans, and by order of the commander of the Tauras partisan unit were considered deserters. In respect of J.A. the same is indicated in the indictment of 16 March 1945 drawn up by the [MGB]. The specific acts that J.A. was accused of were not detailed. Assessing the above documents, it appears that they contain no data about the brothers’ involvement in particular crimes against humanity. Moreover, from the charges against J.A. it is more likely that he had been accused primarily of activity against the [USSR] occupying forces themselves. There are no data in the case file about any involvement by the brothers in other criminal acts. Even in KGB documents it is indicated that from 1947 J.A. and A.A. were hiding “without committing robberies, and they did not belong to any [criminal] gang”. The Genocide and Resistance Research Centre’s letter “Resistance activity by J.A. and A.A.” indicates that from 1945 they belonged to partisan unit no. 37... According to data from the Šakiai MGB, in 1949 [J.A. and A.A.] still belonged to partisan unit no. 37... Afterwards they left the unit and took no further part in active partisan actions. In the Chamber’s view, the information given does not indicate that until their liquidation J.A. and A.A. could not have been considered Lithuanian partisans. In the judgment of conviction it is rightly noted that during the relevant period partisans had already been forced to fight in small groups to avoid extermination. Even in the MGB files there is an indication that in August 1952 other partisans were looking for an opportunity to meet J.A. and A.A. in order to form a single squad. Therefore the MGB decided to spread the rumour that J.A. and A.A. were MGB agents. Particular plans to discredit J.A. and A.A. are apparent from the plan of 12 September 1952 confirmed by the head of the MGB board of Kaunas District... Witness A.S. testified that in 1952 she met partisans J.A. and A.A. and supplied them with food. In addition, J.A. and A.A. gave her a certificate confirming that she was a supporter of the partisans. She has kept that certificate to this day. On 18 November 1992 the Office of the Prosecutor General cleared J.A.’s name in respect of crimes attributed to him in the indictment of 1945. The prosecutor indicated that from October 1944 to May 1945 J.A. was unlawfully imprisoned. In 1998 and 2002 the Lithuanian Genocide and Resistance Research Centre posthumously granted J.A. and A.A. volunteer fighter (kario savanorio) certificates. The fact that the MGB itself had considered J.A. and A.A. to be partisans is clear from the report of 11 June 1952, in which the head of the Kaunas MGB informed the LSSR Minister of the Interior that measures had been adopted to ascertain the hiding place of [J.A. and A.A.] and liquidate them. The Šakiai district MGB was to take measures for speedier liquidation of [J.A. and A.A.]. All this served to prove that when putting those plans into action J.A. and A.A. had been killed as participants in the armed resistance.” 38. On 22 February 2005 the Supreme Court, in cassation proceedings, upheld the conviction of the applicant and M.Ž. As concerns the concept of genocide, the court held: “Both of those convicted argue that the concept of genocide, as established in Article 99 of the Criminal Code, is broader than the one established in Article II of the 1948 Genocide Convention, thus not corresponding to the norms of international law. This argument must be dismissed. Indeed, Article 99 of the Criminal Code does provide for a broader concept (platesnė nusikaltimo sudėtis) of the crime of genocide than that in Article II of the [Genocide] Convention. According to Article 99 of the Criminal Code, genocide also comprises actions aimed at the physical eradication of some or all of the members of a social or political group. Article II of the Convention does not mention such groups. By acceding to the [Genocide] Convention, the Republic of Lithuania acquired the obligation to ensure that its norms were applied on its territory. Accordingly, by acceding to the [Genocide] Convention Lithuania acquired the obligation to punish actions aimed at the total or partial destruction of a national, ethnic, racial or religious group, and to prevent such actions. Acceding to the [Genocide] Convention does not deprive a State of the right to define actions which are crimes, and to prohibit them (apibrėžti veikas, kurios yra nusikaltimai, ir jas uždrausti). This is even truer because Article V of the [above] Convention provides that the Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the Convention and to provide penalties for those guilty of genocide or any of the other acts enumerated in Article III. In Lithuania, this provision has been put into force by enactment of the Law of 9 April 1992 “On Responsibility for Genocide of Inhabitants of Lithuania”. The concept of genocide, as established in Article 1 of that law, corresponded to the concept of genocide established in Article II of the Genocide Convention. At the same time, when joining the Convention, in Article 2 of the Law “On Responsibility for Genocide of Inhabitants of Lithuania” the Lithuanian Parliament established that killings and torture of Lithuanian people and their deportations during the years under Nazi German and USSR occupation and annexation corresponded to the characteristics of the crime of genocide as established by the norms of international law. The 1998 amendments to the Criminal Code established the elements of the crime of genocide (apibrėžta genocido nusikaltimo sudėtis), and included in them acts aimed at physical extermination of some or all of the members of a social or political group. This characteristic of the crime of genocide remained in Article 99 of the Criminal Code. It is clear that adding acts aimed at the physical extermination of some or all of the members of a social or political group to the definition of the crime of genocide amounts to nothing more than execution of the legal norms of Article 2 of the Law of 9 April 1992 “On Responsibility for Genocide of Inhabitants of Lithuania”. It follows that the doubts by the applicant and M.Ž. about the interpretation of the concept of the crime of genocide are not founded.” 39. The Supreme Court noted that the applicant and M.Ž. “had been convicted of involvement in the physical extermination of a part the inhabitants of Lithuania, who belonged to a separate political group, that is Lithuanian partisans – members of the resistance to the Soviet occupation power (nuteisti už dalyvavimą fiziškai sunaikinant Lietuvos gyventojų dalį, priklausiusią atskirai politinei grupei, t.y. Lietuvos partizanams – pasipriešinimo sovietų okupacinei valdžiai dalyviams)”. The court dismissed arguments by the applicant and M.Ž. that the brothers J.A. and A.A. had deserted from the partisans and at the time of their death they therefore no longer belonged to the partisans’ political group. That argument had been raised both before the trial and appellate courts and had been dismissed by them for sound and clear reasons. 40. The Supreme Court observed that in 1944-53 the “nation’s armed resistance – the partisan war – against the Soviet Union’s occupying army and structures of occupying regime was underway in Lithuania”. It further pointed out that under the Law on the Status of Participants in Resistance against the Occupations of 1940-90, enacted on 28 November 1996, the partisans who fought against the occupation had been declared to be volunteer-fighters. In 1998 and 2001 the Lithuanian Genocide and Resistance Research Centre granted volunteer-fighter status to J.A. and A.A., which meant that they had met the condition contained in that Law that such status was not to be granted to individuals who had committed crimes against humanity or had killed civilians. 41. The Supreme Court also dismissed the applicant’s argument that he had not committed any act causing the death of the two partisans: “The trial court has concluded that V. Vasiliauskas took part in the killing of Lithuanian partisans J.A. and A.A.: he surrounded the bunker with other MGB officers and attacked the bunker; during the attack J.A. and A.A. were shot and killed. The trial court’s verdict does not state that V. Vasiliauskas himself killed any of the partisans, although data to that effect exists in the case file [the 2 January 1953 report by the head of the Šakiai district MGB). Participation in killing people who belong to a political group is one of the objective elements (vienas iš nusikaltimo sudėties objektyviosios pusės požymių) of the crime of genocide listed in Article 99 of the Criminal Code. Involvement in the killing of members of the groups enumerated in Article 99 means not only committing acts causing loss of life; it also means setting up conditions (sudarymas sąlygų) so that the killings happen. It has been established that V. Vasiliauskas, as an MGB officer, together with an MGB subsection chief, took part in preparations for the operation to exterminate J.A. and A.A.; V. Vasiliauskas was armed, and during the operation he was responsible for the MGB agent [M.Ž.], who had located the partisans’ bunker; V. Vasiliauskas stayed with M.Ž. until the end of the operation. V. Vasiliauskas himself acknowledges those actions. Having taken the above into account, the Court of Appeal arrived at the reasonable conclusion that V. Vasiliauskas had played an active role in the operation of extermination of the partisans J.A. and A.A. Even though it has not been established that V. Vasiliauskas killed either of the partisans himself, the actions he took when preparing the operation and at the time of the operation correspond to the objective element of the crime of genocide, as established in Article 99 of the Criminal Code – involvement in killing people who belong to a political group. The actions of V. Vasiliauskas also correspond to the subjective element of genocide – direct intent (tiesioginė tyčia): V. Vasiliauskas, when taking those actions, had known the goal of the Soviet Government – to eradicate all Lithuanian partisans. He knew that the brothers J.A. and A.A. were partisans, and understood that during the operation they would be killed or arrested and then tortured, tried as “traitors to the homeland” and [possibly] sentenced to death, and [V. Vasiliauskas] wished that to happen.” 42. On 20 December 2004 M.B. brought civil proceedings, claiming 200,000 Lithuanian litai (LTL, approximately 58,000 euros (EUR)) from the applicant and M.Ž., to be paid by them jointly. The plaintiff noted that one of the partisans who had been killed, J.A., was her father, and the other partisan, A.A., was her uncle. At the time of their death she was nearly seven years old. Her father’s death had left her an orphan. Because of the applicant’s actions she and her remaining family members had sustained enormous mental suffering, depression, humiliation, and loss of reputation; her opportunities to communicate with others had been reduced and she had had to hide and constantly change her place of residence. M.B. argued that she continued to feel the repercussions of the crime up to the present time, because the applicant and M.Ž. still refused to tell her where her father was buried. 43. On 9 November 2006 the Kaunas Regional Court dismissed the claim. It noted that the State of Lithuania had already paid M.B. the sum of LTL 20,000 as one-off compensation payable to those whose families had suffered under the 1940-90 occupation (see paragraph 68 below). It followed that the State had already compensated for M.B.’s suffering caused by the loss of her family members. 44. By a ruling of 20 June 2007 the Court of Appeal overturned the above decision and found that the applicant and M.Ž. were to pay a sum of LTL 150,000 for the damage their criminal actions had caused M.B. The court also emphasised that M.B. could not have applied for damages in Soviet times, when Lithuania was under occupation, that is, during the period when the applicant and M.Ž. had committed the crimes “against the Lithuanian partisans’ battles for the freedom and independence of the Lithuanian State (nukreipti prieš Lietuvos partizanų kovas už Lietuvos valstybės laisvę ir nepriklausomybę)”. It found that the loss of her family member and a close relative had caused M.B. serious suffering and emotional depression. Furthermore, the court emphasised that “it had to be taken into consideration that the criminal acts were committed on a massive scale and in essence were directed not against particular individuals, but against everyone who had fought for the independence of Lithuania”. Given the applicant’s and M.Ž.’s serious health problems and the fact that considerable time had elapsed since the crimes were committed, the appellate court awarded M.B. the sum of LTL 150,000 in compensation for non-pecuniary damage, to be paid jointly by both individuals who had been found guilty of genocide. 45. By a ruling of 28 February 2011 the enlarged chamber of the Supreme Court upheld the appellate court’s decision, but reduced the sum to be paid jointly (solidariai) by the applicant and M.Ž. to LTL 50,000 (approximately EUR 14,500). The court observed, inter alia, that the applicant and M.Ž. had committed the crime of genocide when acting together with officers of the LSSR Šakiai district MGB and Soviet soldiers. Accordingly, it was necessary not to impose a disproportionate burden on the applicant and M.Ž. Moreover, “crimes against humanity had the characteristic that they were directed against many people, that is to say the perpetrator caused harm to many victims”, which also had to be taken into account when adjudging the damages to be paid to each of the victims. Should the court grant too large a sum of money, it could complicate the execution of subsequent court decisions if not all the victims were known or should they come forward in future. 46. After the Constitutional Court’s ruling of 18 March 2014 (see paragraphs 56-63 below), by a decision of 10 April 2014 the Prosecutor General decided to initiate a process under Article 444 of the Code of Criminal Procedure on account of newly discovered circumstances. The Prosecutor General noted that the trial court had found the applicant and M.Ž. guilty of genocide of a political group. The conviction had been upheld by appellate and cassation courts. The Prosecutor General’s decision states that, taking into consideration the conclusions set out in the Constitutional Court’s ruling to the effect that retroactive prosecution for genocide of persons belonging to a political or social group was in breach of the principle of the rule of law, it had to be ascertained whether the applicant (and his co-accused M.Ž.) were to be considered innocent, guilty of genocide or, as another alternative, whether they might have committed some other criminal activity. A prosecutor from the Prosecutor General Office was appointed to examine those newly discovered circumstances. 47. By a final decision of 28 May 2014 the prosecutor held that the Constitutional Court’s ruling of 18 March 2014 constituted an interpretation of a legal norm and not a newly discovered factual circumstance (“another circumstance” within the meaning of Article 444 § 1 (4) of the Code of Criminal Procedure). Consequently, it could not be the basis for requesting the Supreme Court to re-open the applicant’s criminal case. Accordingly, this constituted a legal impediment to an application to the Supreme Court to re-open the criminal procedure in the applicant’s case.
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test
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001-163353
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ENG
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BGR
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CHAMBER
| 2,016 |
CASE OF INTERNATIONAL BANK FOR COMMERCE AND DEVELOPMENT AD AND OTHERS v. BULGARIA
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Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing;Adversarial trial);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)
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Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
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11. The bank was founded and entered in the register of companies in 1991. According to the BNB’s records, its shareholders on 31 March 2004 were the second applicant, Mr Bonev, who held 4.98% of the shares; his brother, Mr P.E.B., who also held 4.98% of the shares; the twenty companies listed in paragraph 6 above, each of which held between 4.98% and 2.81% of the shares; a Mr B.P., who held 0.19% of the shares; and a Mr P.B., who held 1.20% of the shares (for a full breakdown, see the Appendix). 12. At the material time the bank had a two-tier management system, consisting of an executive board and a supervisory board. Mr Panev and Mr Ivanov were members of the executive board between 30 May 2003 and 5 April 2004. In May and June 2004 Mr B.P. (see paragraph 11 above) was member of the bank’s executive board and one of its executive directors. 13. In early 2004 tensions arose among the bank’s shareholders and between some of the shareholders and the bank’s management. On 18 March 2004 Mr Bonev and Flavors, Fragrances and Chemicals (FFCH) Ltd, acting in their capacity as shareholders who had held more than five per cent of the bank’s shares for more than three months, asked the executive board to call a general meeting of shareholders with a view to adopting amendments to the bank’s articles of association, reducing the number of members of the bank’s executive and supervisory boards, and replacing some of the boards’ members. The same day the executive board agreed to call such a meeting, but on 23 March 2004 the supervisory board set its resolution aside and called a general meeting of shareholders with a different order of business, to be held on 24 June 2004. 14. Thereupon Mr Bonev, Card Transaction Services Ltd, Flavors, Fragrances and Chemicals (FFCH) Ltd, Geneltech Ltd, General Foods Int’l Corp, Industrial Finance Int’l Corp, Megatours-A New Dimension in Travel-Inc, Petrofinance Ltd and V.V.V. Holdings Corp, acting in their capacity as shareholders who had held more than five per cent of the bank’s shares for more than three months, applied to the Sofia City Court for an order adding the points that they wished to have included on the general meeting’s order of business. On 14 May 2004 the chairman of the bank’s executive board and one of its executive directors objected to the request, saying that according to the bank’s register of shareholders, the persons who had made the request did not hold enough shares to be entitled to make one, and that the companies which had made the request had not produced proper credentials. On 8 June 2004 the Sofia City Court made an order in the terms sought by Mr Bonev and the companies, noting that they had proved that they had held the required number of shares for more than three months through notarised declarations. 15. Separately, Mr Bonev and Flavors, Fragrances and Chemicals (FFCH) Ltd, again acting in their capacity as shareholders who had held more than five per cent of the bank’s shares for more than three months, asked the Sofia City Court to authorise them to call a separate general meeting of shareholders, with the order of business that they wished to have. To establish their capacity as shareholders, they enclosed with their request provisional share warrants issued in 2003. On 17 May 2004 the Sofia City Court upheld the request. On 20 and 26 May 2004 the chairman of the bank’s executive board and one of its executive directors, Mr B.P., asked the court to vary its order, arguing that the provisional share warrants had not been registered in the bank’s register of shareholders, and that the documents enclosed with the applicants’ request had not been issued by persons authorised to act on the bank’s behalf. On 20 and 28 May 2004 the court refused to vary its order, holding that by law that was not possible. 16. On 24 June 2004 proxies representing the twenty companies listed in paragraph 6 above showed up at the bank’s premises with a view to taking part in the general meeting of shareholders. Mr P.E.B, Mr B.P. and Mr P.B., who between them held 6.37% of the bank’s shares, were also represented. The polling commission entrusted by the bank’s executive board to check the shareholders’ credentials refused to accept the provisional share warrants through which the twenty companies sought to establish their capacity as shareholders. Concluding that only 6.37% of the shares were duly represented, the commission decided to adjourn the meeting for another date. A dispute ensued, and the twenty companies’ proxies held a parallel general meeting in the stairwell of the bank’s building. They resolved to amend the bank’s articles of association, reduce the number of members of its executive and supervisory boards from five to three, remove four members of the supervisory board and four members of the executive board, including Mr B.P., and appoint two new members of the supervisory board and three new members of the executive board, who were to be also executive directors: the applicants Mr Panev, Mr Ivanov and Mr Radev. 17. On 27 June 2004 Mr Bonev’s and the twenty companies’ proxies tried to hold another general meeting of shareholders at the Sofia Hilton hotel, as authorised by the Sofia City Court (see paragraph 15 above). Mr P.E.B, Mr B.P. and Mr P.B. were also represented. The police showed up, trying to seize the provisional share warrants which Mr Bonev’s and the twenty companies’ proxies were supposed to use to establish their capacity as shareholders, but could apparently not find them. The police were acting on an order issued by the prosecuting authorities in connection with criminal proceedings concerning the genuineness of those warrants, which they had opened pursuant to complaints by Mr B.P. (see paragraph 22 below). In view of the failure of the proxies to produce valid share warrants, the polling commission entrusted by the bank’s executive board to check the shareholders’ credentials found that only 6.37% of the shares were duly represented and decided to adjourn the meeting for another date. However, Mr Bonev’s and the twenty companies’ proxies held a parallel general meeting in an adjoining room, and adopted the same resolutions as the ones adopted on 24 June 2004. 18. On 16 August 2004 the Sofia City Court, sitting in private, decided to enter the changes resolved upon at the general meeting on 24 June 2004 (see paragraph 16 above) in the register of companies. The court found that the change in the bank’s management and the amendment of its articles of association had been duly carried out. It registered the amendment to the bank’s articles of association and the reduction of the number of members of its executive and supervisory boards from five to three. The court also struck out of the register four members of the supervisory board and four members of the executive board, including Mr B.P., and registered two new members of the supervisory board and three new members of the executive board, who were also to be executive directors: the applicants Mr Panev, Mr Ivanov and Mr Radev. Lastly, the court registered Mr Panev as chairman of the executive board. The court specified that its decision was to be entered in the register of companies and published, and that it was not subject to appeal. 19. The court’s decision was entered in the register of companies the afternoon of the following day, 17 August 2004. In the morning a notary sent to the register of companies by Mr B.P. certified that the decision had not yet been entered in the register. The same day the court issued a certificate reflecting the changes in the bank’s registration. 20. On 24 August 2004 the Sofia City Court, sitting in private, decided to enter the changes and amendments resolved upon at the general meeting on 27 June 2004 (see paragraph 17 above) in the register of companies. The court found that the changes in the bank’s management and the amendment of its articles of association had been duly made. The changes registered by the court were identical to the ones registered with its decision of 16 August 2008 (see paragraph 18 above). 21. Subsequently, Mr B.P. and Mr P.B. sought revision of those two decisions and brought claims for the annulment of the shareholder resolutions whose registration they ordered (see paragraphs 52-58 below). 22. On 19 May 2004 Mr B.P. wrote to the police and to the Sofia District Prosecutor’s Office, alleging that the provisional share warrants on which Mr Bonev and Flavors, Fragrances and Chemicals (FFCH) Ltd had relied to obtain the court order of 17 May 2004 (see paragraph 15 above) were false and did not correspond to the entries in the bank’s register of shareholders. He pointed out that the warrants had been signed by Mr Panev and Mr Ivanov, and asked the authorities to open criminal proceedings and check whether any criminal offences had been committed in relation to that. 23. On 4 June 2004 the police issued an order for Mr Panev’s arrest for twenty-four hours. He was arrested and released later the same day. It does not appear that he has attempted to seek judicial review of his detention. 24. In the following days Mr Panev and Mr Ivanov were charged with making false private documents. Mr Bonev was, for his part, charged with using a false official document. The charges were later amended: Mr Panev and Mr Ivanov were charged with making false official documents, and Mr Bonev was charged with knowingly using a false document. 25. On 11 June 2004 the Sofia District Prosecutor’s Office, noting that Mr Panev and Mr Ivanov had in the past four years travelled extensively out of the country, which in its view meant that they could seek to evade criminal liability by fleeing abroad, banned them from leaving the country. On 23 July 2004 it made the same decision with respect to Mr Bonev. 26. On 29 December 2004 the Sofia District Prosecutor’s Office turned down Mr Bonev’s, Mr Panev’s and Mr Ivanov’s requests that the travel bans be lifted. It reasoned that, in view of the advanced stage of the pre-trial proceedings, their prolonged absence from the country might cause delays. 27. The preliminary investigation was completed in the end of December 2004 and on 11 January 2005 the three applicants were indicted. However, finding that the indictment suffered from various defects, on 25 January 2005 the Sofia District Court referred the case back to the prosecuting authorities. 28. On 14 June 2005 the Sofia District Prosecutor’s Office turned down a request by Mr Bonev to be allowed to travel to Switzerland for business meetings in July, August, September and October 2005. 29. On 27 June 2005 the Sofia District Prosecutor’s Office re-submitted the indictment, and on 22 July 2005 the Sofia District Court set the case down for trial on 6 December 2005. 30. In the meantime, on 11 July 2005 the Sofia District Court refused a request by Mr Bonev to be allowed to travel to Switzerland for business meetings. It held that there was no evidence that he had a pressing need to travel there. However, on 21 September and 19 October 2005 the court allowed Mr Bonev to travel abroad in October and the first half of November 2005 respectively. On 27 October 2005 it allowed him to travel to Turkey in the end of November 2005 for a business seminar. 31. The Sofia District Court heard the case on 6 December 2005 and 14 March, 5 June and 19 October 2006. 32. At the hearing on 6 December 2005, noting that Mr Bonev had duly appeared and had not attempted to flee during the investigation, the court allowed him to travel abroad during the period until the following hearing. On 17 February 2006 the court allowed Mr Bonev to travel to Belgium in the second half of March 2006 for business meetings. 33. On 4 April, 26 April and 5 May 2006 respectively the Sofia District Court lifted the travel bans imposed on Mr Bonev, Mr Panev and Mr Ivanov. 34. On 19 October 2006 the Sofia District Court acquitted Mr Panev, Mr Ivanov and Mr Bonev. Its judgment was not appealed against and became final on 4 November 2006. 35. On 14 and 18 October 2004 respectively Mr Ivanov and Mr Panev were charged with forgery offences in connection with their participation in the general meeting of shareholders of the bank on 24 June 2004 (see paragraph 16 above). On 18 January 2005 the Sofia District Prosecutor’s Office banned them from leaving the country. Four other persons were charged as well. 36. On 13 April 2005 Mr Panev, Mr Ivanov and their co-accused were indicted. However, finding that the indictment suffered from various defects, on 3 June 2005 the Sofia District Court referred the case back to the prosecuting authorities. 37. On 27 November 2005 the Sofia District Prosecutor’s Office resubmitted the indictment. The Sofia District Court heard the case on four unspecified dates in 2005-06. 38. On an unspecified date in the autumn of 2005 Mr Panev and Mr Ivanov asked the Sofia District Court to lift the travel bans. In a decision of 24 November 2005 the court refused their request, but on 4 April 2006 lifted the bans. 39. On 11 July 2006 the Sofia District Court acquitted Mr Panev, Mr Ivanov and their four co-accused. On 25 July 2006 the prosecution appealed but then withdrew its appeal, and on 18 December 2006 the Sofia City Court discontinued the appeal proceedings. 40. On 16 August 2004 Mr Panev, Mr Ivanov and Mr Radev entered into service contracts with the bank, represented by a member of its supervisory board. They undertook to sit on the bank’s executive board for three years following the registration of the resolutions of the general meeting of shareholders to appoint them as members of that board. In return, each of them was to receive a monthly salary of 10,000 Bulgarian levs (BGN) plus a host of other benefits. 41. The same day Mr Panev and Mr Ivanov tried to take up their duties, but the bank’s former management refused to vacate their offices and called the police, saying that they were not aware of any resolution to remove them. The next day, 17 August 2004, the bank’s former management forced the applicants out of the bank’s building, with help from the police. It appears that the police were acting on orders from the prosecuting authorities (see paragraph 42 below). 42. On 17 August 2004 the Sofia City Prosecutor’s Office ordered the police to assist Mr B.P. in preventing any changes in the status quo in the bank’s management and operations, and to warn Mr Panev, Mr Ivanov and Mr K.Y., a newly registered member of the bank’s supervisory board, to refrain from any actions in relation to that until the matter had been duly resolved by the competent authorities. It relied on section 119(1)(6) of the Judiciary Act 1994 (see paragraph 77 below), and reasoned that the Sofia City Court’s decision of 16 August 2004 (see paragraph 18 above) was being verified by the Sofia District Prosecutor’s Office, that the record drawn up by the notary public (see paragraph 19 above) made it apparent that that decision had not been entered in the register of companies, which meant that it did not in fact exist, that Mr B.P. had applied to the Supreme Court of Cassation to reopen the proceedings and annul that decision (see paragraph 52 below), and that by trying to put the decision into effect Mr Panev, Mr Ivanov and Mr K.Y. were interfering with the bank’s normal business. The prosecutor found that, in view of the possibility for them to dispose of the bank’s documents and assets and imperil the interests of the bank’s depositors, that gave rise to a real risk of irreparable damage. 43. Mr Panev, Mr Ivanov and Mr K.Y. appealed to the Sofia Appellate Prosecutor’s Office, arguing that the order was unlawful and arbitrary. They pointed out that the Sofia City Court’s decision was valid and immediately enforceable, that no appeal lay against it to the Supreme Court of Cassation, and that the prosecuting authorities had no power to stay its enforcement. The question whether a judicial decision had been entered in the register of companies was to be established on the basis of official documents issued by the competent court, not of a record drawn up by a notary public outside his competence. The certificate issued by the Sofia City Court (see paragraph 19 above) showed that its decision had in fact been duly entered in the register of companies. 44. On 23 August 2004 the Sofia Appellate Prosecutor’s Office dismissed the appeal. It noted that the Sofia City Prosecutor’s Office had been spurred into action by information, given to it by the Sofia District Prosecutor’s Office, that the Sofia City Court’s decision to make changes in the bank’s registration might have been based on false documents. At the time when the Sofia City Prosecutor’s Office had issued its order, the Sofia City Court’s decision had not yet been entered in the register of companies. Proceedings against that decision were pending before the Supreme Court of Cassation. All of that showed that until the Sofia District Prosecutor’s Office had completed its inquiry into the matter or until the Supreme Court of Cassation had given judgment, there would continue to exist a risk of changes in the status quo and irreparable damage to the bank. 45. Mr Panev, Mr Ivanov and Mr K.Y. appealed to the Supreme Cassation Prosecutor’s Office, reiterating their arguments. 46. On 7 September 2004 the Supreme Cassation Prosecutor’s Office dismissed the appeal. It reasoned that it was beyond doubt that the prosecuting authorities were faced with a judicial decision under challenge and with evidence that that decision had been obtained through the use of false documents. Moreover, the decision had been issued in spite of a decision staying the registration proceedings and the existence of pending contentious proceedings. The appellants’ argument that the Supreme Court of Cassation had no jurisdiction to hear a legal challenge against the Sofia City Court’s decision was unavailing because the prosecuting authorities were not competent to make pronouncements on such points. Faced with pending judicial proceedings and a pending criminal investigation, they were bound to take measures to prevent changes in the status quo before any judicial resolution of the matter. The appellants’ attempts to change that status quo were premised on rights acquired through a judicial decision based on false documents. It was necessary for the judiciary to check the lawfulness of that decision and for the investigating authorities to gather evidence with a view to uncovering the truth. The bank had to be protected against damage flowing from offences that had already been committed and from the risk of future offences. The prerequisites of section 119(1)(6) of the Judiciary Act 1994 (see paragraph 77 below) were therefore in place. 47. Mr Panev, Mr Ivanov and Mr K.Y. appealed to the Chief Prosecutor, arguing that the prosecuting authorities had acted in a patently unlawful way and in excess of their powers. Their decisions had been based on false findings of fact, and on the finding – not based on a final conviction – that offences had been committed by them. 48. On 28 September 2004 the head of the economic crime division of the Supreme Cassation Prosecutor’s Office, to whom the case had been assigned, dismissed the appeal. He reasoned that the prosecuting authorities had acted lawfully and within their powers under section 119(1)(6) of the Judiciary Act 1994 (see paragraph 77 below). The Sofia District Prosecutor’s Office was investigating the making of false documents with a view to obtaining changes in the bank’s registration, and the Sofia City Court’s decision had been challenged before the Supreme Court of Cassation. There had therefore been a need to preserve the status quo with a view to ensuring the normal operation of the bank. 49. The same day, 28 September 2004, the Sofia District Prosecutor’s Office ordered the police to take measures to ensure compliance with the Sofia City Prosecutor’s Office’s order of 17 August 2004 (see paragraph 42 above) and the preservation of the status quo in the bank. It noted that criminal proceedings had been instituted against members of the bank’s newly appointed management in relation to documentary offences, and that information existed that a group of persons had tried to enter the bank’s premises. Mr B.P. and the applicants Mr Panev and Mr Ivanov had complained to the prosecuting authorities in relation to that. Since the criminal proceedings concerned allegations of using false documents to obtain judicial decisions to make entries in the register of companies, it was appropriate to maintain the status quo pending the resolution of the case. Indeed, this had already been ordered by the higher prosecutor’s offices, whose decisions were mandatory for the Sofia District Prosecutor’s Office. The decision did not mention the legal provisions on which it was based. 50. In the following months Mr Bonev wrote a number of letters to the Chief Prosecutor and tried to meet him in person with a view to obtaining the quashing or varying of the above prosecutors’ decisions, to no avail. He also lodged complaints with the Minister of Justice and the Supreme Judicial Council. 51. On 25 August 2004 the twenty companies listed in paragraph 6 above transferred their shares to Mr Bonev by endorsing the provisional share warrants issued in 2003. As a result, he became the owner of 93.63% of the bank’s shares. The companies submitted that Mr Bonev paid part of the shares’ price immediately and undertook to pay the remainder when the transfer would be registered in the bank’s register of shareholders. The companies submitted that they could not obtain the remainder of the price because the bank’s former management, who were de facto running the bank by virtue of the prosecutors’ decisions outlined in paragraphs 42-49 above, refused to register the transfer. 52. On an unspecified date in 2004 Mr B.P. and Mr P.B. sought revision of the Sofia City Court’s decisions of 16 and 24 August 2004 (see paragraphs 18 and 20 above). 53. In two decisions of 4 February 2005 (опр. № 6 от 04.02.2005 г. по гр. д. № 554/2004 г., ВКС, І т. о., and опр. № 7 от 04.02.2005 г. по гр. д. № 483/2004 г., ВКС, І т. о.) a three-member panel of the Supreme Court of Cassation refused to examine the requests, holding that judicial decisions making entries in the register of companies were not subject to revision. Such decisions did not determine disputes between opposing litigants and did not enjoy res judicata. The proper way to contest entries in the register of companies obtained by criminal means was by way of a claim under Article 431 § 2 of the Code of Civil Procedure 1952 aiming to have the entries erased under Article 498 of that Code (see paragraph 76 below). Mr B.P. and Mr P.B. appealed. In two decisions of 28 June 2005 (опр. от 28.06.2005 г. по гр. д. № 53/2005 г., ВКС, петчл. с-в, and опр. № 28 от 28.06.2005 г. по гр. д. № 52/2005 г., ВКС, петчл. с-в) a five-member panel of the Supreme Court of Cassation upheld the three-member panel’s rulings, fully agreeing with them. 54. In the meantime, Mr B.P. and Mr P.B. brought claims against the bank under section 74 of the Commerce Act 1991 (see paragraph 76 below), asking the Sofia City Court to annul the resolutions of the general meetings of shareholders held on 24 and 27 June 2004 (see paragraphs 16 and 17 above). 55. In two judgments of 28 February and 7 March 2005, the Sofia City Court allowed the claims and annulled all resolutions adopted by the two meetings. It found that the meetings had been adjourned by the polling commission for lack of quorum and had not taken place, and that the parallel meetings had not been valid, chiefly because the persons who had taken part in them had not established their capacity as shareholders on the basis of valid provisional share warrants. 56. Following appeals by the bank, represented by the management appointed in June 2004 (see paragraphs 16 and 17 above) and registered by the Sofia City Court in August 2004 (paragraphs 18-20 above), on 16 and 19 June 2006 respectively the Sofia Court of Appeal quashed those judgments and dismissed the claims. It found that the persons who had held the parallel meetings had in fact represented 93.62% of the bank’s capital. The bank’s records, which fully matched those of the BNB, and a document issued by Mr B.P. in his capacity as executive director on the day of the meeting, showed that they had indeed been shareholders in it. 57. On appeals by Mr B.P. and Mr P.B., in two judgments of 7 June and 3 July 2007 (реш. № 111 от 07.06.2007 по т. д. № 598/2006 г., ВКС, І т. о., and реш. № 113 от 03.07.2007 по т. д. № 600/2006 г., ВКС, І т. о.) the Supreme Court of Cassation quashed the Sofia Court of Appeal’s judgments and annulled the resolutions of the two general meetings. It held that, where nominative shares which had still not been issued were concerned, the only way of proving that a person was a shareholder entitled to take part in a general meeting was by producing a valid provisional share warrant. This had not happened at the two meetings. They had therefore been held by persons whose capacity as shareholders had not been duly established, and all resolutions adopted by them were unlawful. 58. On 27 June and 18 July 2007 the Sofia City Court, acting of its own motion (see paragraph 76 below), and noting that the resolutions of the general meetings of 24 and 27 June 2004 had been ultimately annulled by the Supreme Court of Cassation, erased the entries in the register of companies relating to those resolutions. 59. Between September 2004 and April 2005 the applicants repeatedly asked the BNB to exercise its supervisory powers and take measures to resolve the bank’s situation. On 4 October 2004 the BNB wrote to the Chief Prosecutor with a view to elucidating the effect of the prosecutors’ decisions outlined in paragraphs 42-49 above on the bank’s management, but apparently did not receive a reply. 60. On 10 February 2005 the BNB’s deputy-governor in charge of banking supervision noted that Mr Panev and Mr Ivanov, who had been duly registered as members of the bank’s executive board, were being prevented from carrying out their duties as a result of the decisions of the prosecuting authorities (see paragraphs 42-49 above). That made it impossible for the bank’s executive board to function. The attempts to approach the Chief Prosecutor with a view to solving the problem had proved unfruitful. At the same time, a check of the bank’s finances carried out in December 2004 showed that its credit portfolio was deteriorating due to the ever more frequent failure of its debtors to service considerable loans extended by the bank, and that the bank was not carrying out proper creditrisk assessments. All of that seriously affected its stability and the interests of its creditors and depositors. It was therefore necessary to take urgent measures to solve the problem with the bank’s management. The BNB’s deputy-governor accordingly decided to call a meeting of the bank’s supervisory board on 11 February 2005 with a view to taking measures, possibly including replacing the members of the bank’s executive board, that could allow the bank to be effectively managed. The order specified that it was immediately enforceable and not subject to judicial review. 61. The next day, 11 February 2005, the bank’s supervisory board held a meeting at which it resolved to relieve Mr Ivanov of his duties as executive director of the bank and member of its executive board, and to appoint a Mr S.S. in his stead. The board noted that Mr Ivanov’s removal was not due to any failure on his part but to factors beyond the bank’s control. The next day, 18 February 2005, the BNB informed the bank that it gave its regulatory approval to the changes in the bank’s executive board. 62. On 18 February 2005 Mr Panev and Mr S.S. asked the Sofia City Court to register the supervisory board’s resolution. On 17 March 2005 Mr B.P. and Mr Bonev’s brother, Mr P.E.B., acting in their capacity as shareholders in the bank, asked the court not to proceed with the registration pending the outcome of the proceedings in which Mr B.P. and Mr P.B. had challenged the resolutions of the general meetings of shareholders of 24 and 27 June 2004 (see paragraph 54 above). On 21 March 2005 the court upheld that latter request, noting that the general meeting’s resolutions under challenge included the one to appoint the supervisory board whose resolution the court was being asked to enter in the register of companies. This registration was therefore to be adjourned pending the outcome of the proceedings against the general meeting’s resolutions. 63. In the following months the BNB repeatedly instructed the bank to take steps to overcome its financial difficulties. On 4 May 2005 it noted that, contrary to a statutory rule prohibiting banks from exposing more than a quarter of their capital to any one debtor, the bank had, as early as July 2004, extended a large loan to a company. In spite of the BNB’s instructions to fix that, the bank later had, on the contrary, vastly increased its exposure to that company. It was also overly exposed to other debtors, and faced with a serious deterioration of its credit portfolio, with ever more frequent failures by its nine principal debtors to service their loans. That required the bank to increase its non-performing loan provisions, but doing so would deplete its capital to a level requiring revocation of its licence. The BNB therefore asked all persons engaged with running the bank to join efforts to remedy its situation, and instructed the bank immediately to bring its exposure into line with the statutory requirements and collect its overdue loans from nine companies and all of its loans from another company. The BNB also barred the bank from taking in new term deposits, except from shareholders, and warned it that failure to comply with those instructions would lead to harsher measures, including the appointment of special administrators or revocation of its licence. 64. On 28 May 2005 the BNB’s deputy-governor in charge of banking supervision decided to place the bank under compulsory administration and to appoint two special administrators to run it for three months. She noted that it had already been established that the bank’s financial situation had substantially deteriorated and that its capital was below the amount required by law, which called for immediate remedial action; in particular, the collection of some of the loans extended by the bank. Despite instructions to that effect by the BNB and a warning that failure to act would trigger harsher measures, the bank’s management had not taken such action. A report by an inspector appointed by the BNB showed that the bank’s liquidity was worsening daily. The bank was therefore at risk of insolvency that its shareholders and management had not taken steps to avert. There was uncertainty in relation to the persons running the bank: those actually doing so no longer featured in the register of companies and were not in law entitled to act on the bank’s behalf, whereas those featuring in the register could not in fact do so because of the decisions of the prosecuting authorities (see paragraphs 42-49 above). That threw doubt on the reliability of the reports which the bank was submitting to the BNB; there were reasons to believe that its financial situation was worse than transpiring from these reports. At the same time, the infighting between the bank’s shareholders precluded outside assistance. All that showed that the interests of the bank’s depositors were at serious risk, and the BNB had no choice but to place it under administration and appoint special administrators to run it. The BNB specified that its order was immediately enforceable and not subject to judicial review. 65. In the following days the special administrators invited the bank’s management and shareholders to take steps to resolve the bank’s situation. Mr Bonev entered into settlements with the other shareholders – his brother, Mr B.P. and Mr P.B. – whereby they agreed to resolve the disputes between them. Mr Bonev also tried to find companies which would take over the non-performing loans extended by the bank. However, on 8 June 2005 the special administrators wrote to Mr Bonev, advising him that the results of an audit that they had ordered showed that the only way to prevent the bank from sliding into insolvency was to sell its risky loans immediately. The administrators went on to say that if Mr Bonev was serious about preventing that from happening, he had to buy those loans before 5 p.m. the next day, 9 June 2005. Otherwise, the administrators would be bound to notify the BNB that the bank was insolvent. 66. On 14 June 2005 the applicants wrote to the BNB’s governor and deputy-governor, complaining of undue pressure and improper conduct on the part of the special administrators, and saying that one of them was forcing Mr Bonev to sell his shares in the bank on very unfavourable terms. 67. The same day, 14 June 2005, the BNB’s governor, relying on section 21(2) and (5) of the Banks Act 1997 (see paragraph 78 below), and acting on a recommendation by the deputy-governor in charge of banking supervision, revoked the bank’s licence and extended the term of office of the two special administrators previously appointed to run the bank (see paragraph 64 above). He noted that a report by those administrators filed the previous day and the documents enclosed with it, all of which had been drawn up in line with the BNB’s requirements, showed that the bank’s liabilities exceeded its assets by BGN 19,181,000 and that its capital was negative – minus BGN 19,184,000. It was thus clear that the bank was insolvent, and that the BNB had to revoke its licence and petition the courts to open winding-up proceedings against it. The special administrators previously appointed to run the bank were to continue to carry out their duties pending the appointment of liquidators by the court. The governor specified that his decision was immediately enforceable and not subject to judicial review. 68. Following its decision to revoke the bank’s licence, on 15 June 2005 the BNB petitioned the Sofia City Court to declare the bank insolvent and wind it up. As required by law (see paragraph 79 below), in those proceedings the bank was represented by the special administrators previously appointed by the BNB (see paragraphs 64 and 67 above and paragraph 79 below). 69. Mr Bonev sought leave to intervene as a third party, citing concerns that the special administrators would not strive to protect the bank’s best interests. On 27 June 2005 the Sofia City Court turned down his request, holding that the Bank Insolvency Act 2002 set out in an exhaustive manner the persons entitled to take part in such proceedings (see paragraph 79 below). Mr Bonev appealed, arguing that he had an interest to take part in the proceedings in his capacity as shareholder in the bank. In a final decision of 11 October 2005, the Sofia Court of Appeal dismissed the appeal. It agreed with the lower court, and added that Mr Bonev did not have an interest to take part in the proceedings because, being merely a shareholder in the bank, he would not himself be bound by the courts’ decisions in relation to it. 70. In a decision of 29 June 2005, the Sofia City Court granted the BNB’s petition, declared the bank insolvent, made an order for it to be wound up, divested its decision-making bodies of their powers and the bank of the right to administer its property, and ordered the sale of its assets. Relying on the Supreme Court of Cassation’s judgment at issue in Capital Bank AD v. Bulgaria (no. 49429/99, § 33, 24 November 2005), the court held that, unlike the position with regular companies, the fact that a bank was insolvent was conclusively determined by the BNB. The construction of the applicable statutory provisions (see paragraph 79 below) showed that the insolvency court could not scrutinise that determination, and, faced with a decision by the BNB to revoke a bank’s licence and a facially valid winding-up petition lodged by the BNB, it was bound to declare the bank insolvent and make an order for it to be wound up. The decision was not appealed against. Immediately after it the Deposit Insurance Fund appointed liquidators from among the list of persons eligible to serve as liquidators kept by the BNB (see paragraph 81 below). 71. On 23 May 2007 Central Cooperative Bank AD bought all of the bank’s assets for one Bulgarian lev and undertook to satisfy the claims of its creditors which had been accepted by its liquidators. On 2 July 2007 the Sofia City Court approved the transaction. It found that it would result in a higher rate of repayment of the bank’s debts than if its assets were to be sold piecemeal over a protracted period of time. 72. On 17 August 2007 the Sofia City Court closed the winding-up proceedings in respect of the bank and struck it out of the register of companies. 73. On 24 June 2005 the BNB informed Mr Panev and Mr Ivanov that following the revocation of the bank’s licence, all of their bank accounts were being frozen, as required under paragraph 4(1) of the transitional and concluding provisions of the Bank Deposits Guarantee Act 1998 (see paragraph 83 below). They would be unfrozen six months after the BNB had applied for the opening of insolvency proceedings against the bank, unless in the meantime Mr Panev and Mr Ivanov had been charged with a criminal offence in relation to that, or unless the bank’s liquidators had brought a claim against them. 74. On 16 August 2005 Mr Ivanov and Mr Panev protested against the freeze, pointing out that as a result of the prosecuting authorities’ decisions set out in paragraphs 42-49 above they had in effect never been able to take up their duties and therefore did not fall under that provision. On 31 August 2005 the BNB replied that it did not have discretion to unfreeze the accounts. 75. On 12 January 2006 Mr Panev and Mr Ivanov asked the BNB to unfreeze their accounts as the six-month period laid down in paragraph 4(1) of the transitional and concluding provisions of the Bank Deposits Guarantee Act 1998 (see paragraph 83 below) had expired. Finding that no criminal proceedings or claims by the bank’s liquidators had been brought against Mr Panev or Mr Ivanov within those six months, on 20 January 2006 the BNB unfroze the accounts.
| 1 |
test
|
001-141358
|
ENG
|
SWE
|
ADMISSIBILITY
| 2,014 |
BOLEK AND OTHERS v. SWEDEN
| 4 |
Inadmissible
|
Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens
|
1. The first applicant, Mr Guy Bolek, was born in 1989 and the second applicant, Ms Therese Wengo, was born in 1986. The second applicant has a daughter, the third applicant, who was born in 2007. The son of the first and the second applicants, the fourth applicant, was born in May 2012; both parents are his guardians. All the applicants are Congolese nationals and are currently in Sweden. They are represented by Mr P. Varga, a lawyer practising in Stockholm. 2 3. The first applicant applied for asylum and a residence permit in Sweden on 11 July 2007. Before the Migration Board (Migrationsverket) he stated the following. He was born and raised in Kinshasa. He had been politically active in the Movement for the Liberation of the Congo (MLC) and had worked for the politician Jean-Pierre Bemba. He had received constant threats from supporters of Joseph Kabila. His father had been a colonel in Mobutu’s army but had later joined Jean-Pierre Bemba’s own militia. His father had died in an ambush by Joseph Kabila’s soldiers in March 2007 in Kinshasa. On 27 March 2007 Kinshasa’s governor had announced that everyone who had worked for Jean-Pierre Bemba would be killed and, on the same day, Joseph Kabila’s soldiers had come to his home. His sister had been at home and she had been beaten by the soldiers. Following this, he had fled to Brazzaville and stayed there for two months. When he had returned to Kinshasa and his apartment, everything had been destroyed. He had heard soldiers coming for him but he had managed to flee. A child had found a passport which he had manipulated in order to be able to travel to Sweden. 4. On 18 June 2008 the Migration Board rejected the request. It found that the first applicant had not substantiated his identity. The Board then considered that his asylum story was marred by credibility issues. For example, he had been unable to state when the elections had been held in 2006. He had also been unaware of the fact that the MLC held several ministerial posts in the government. The Board found that the first applicant had failed to show that he risked persecution in the DRC because of his political activities and, consequently, he was not in need of protection in Sweden. 5. The first applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims. 6. On 27 May 2009 the Migration Court rejected the appeal. On the same grounds as the Board, the court found that there were reasons to question the first applicant’s statements regarding his political activities. The court also referred to relevant country information and observed that there was nothing to suggest that active members of the opposition risked illtreatment by the authorities because of their political engagement. The court concluded that the first applicant had not substantiated that he risked persecution in the DRC because of his political activities and that he had not shown that he was in need of international protection. 7. It appears that the first applicant did not appeal to the Migration Court of Appeal (Migrationsöverdomstolen). Hence, the expulsion order became enforceable. 8. In September 2009 the first applicant requested the Migration Board to reconsider its previous decision, however without invoking any new grounds. The Board rejected the request and, upon appeal, the Migration Court upheld the Board’s decision in full. On 27 October 2009, the Migration Court of Appeal refused leave to appeal. 9. In January 2013 the first applicant again requested the Migration Board to reconsider its previous decisions. He relied on his ties to the second, third and fourth applicants and stated that he had met the second applicant on New Year’s Eve 2010. They had moved in together in 2011 and the fourth applicant had been born in 2012. He had been responsible for the care of the fourth applicant since the second applicant suffered from mental health problems. In November 2011 he had also, to some extent, taken care of the third applicant when the second applicant had been in hospital. 10. On 28 January 2013 the Migration Board considered that no new circumstances had been presented which could justify granting the first applicant a residence permit. The Board found that the first applicant had not shown that his relationship with the second applicant was serious. Furthermore, it noted that he had not substantiated his identity. As regards the family ties invoked, the Board found that the situation for the second, third and fourth applicants was not such as to make the expulsion of the first applicant unreasonable. Thus, no grounds had emerged to stay the enforcement of the expulsion order. However, the Board reminded the first applicant of the possibility of having his application for a residence permit, based on family ties, examined at a Swedish mission abroad as well as the possibility to submit the application electronically and ask that it be given priority. In conclusion, the Board considered that there was no reason to deviate from the general rule that an application for a residence permit based on family ties was to be submitted before the alien enters the country. No appeal lay against the Board’s decision. 11. On 25 February 2013 the first applicant submitted a certificate from Ekerö municipality, dated 19 February 2013, regarding the fourth applicant. It stated, inter alia, that the expulsion of the first applicant would affect adversely the ties between him and his son and that the second applicant would be unable to take care of their son on her own. 12. The Migration Board considered this as a request for reconsideration of the first applicant’s case but found that no new circumstances had been presented which could justify granting him a residence permit. No appeal lay against the Board’s decision. 13. Yet another request for reconsideration was rejected by the Migration Board on 8 May 2013. 14. The second applicant applied for asylum and a residence permit in Sweden on 26 April 2005. Before the Migration Board she stated the following. She was born in Kisangani. Her parents and siblings had been killed by Kabila’s army in the summer of 1999. After having lived on the streets for six months, she had gone to Kinshasa where she had lived as a street child for three years. Subsequently, a man who had been a tenant at her family’s home had taken her to his own family. She had lived with them until she had left the DRC. During this time, her mental health had deteriorated, partly due to her previous experiences, and partly due to her fear that she would be identified and killed by Kabila’s soldiers. Soldiers used to come looking for her at this place five times a week for approximately two years. 15. On 22 November 2006 the Migration Board rejected the request. It first found that the second applicant had not substantiated her identity but considered it credible that she came from the DRC. Turning to the second applicant’s individual claims, the Board noted that she had lived in Kinshasa from 2000 until 2005. The Board did not question that the second applicant’s parents and siblings had been killed but found her fear of being identified as a witness to these acts greatly exaggerated. It observed that she had been thirteen years old at the time, that she had not been present when her family was killed and that she had subsequently stayed in the DRC for six years. Moreover, the Board did not consider it credible that soldiers had come looking for her five times a week for two years. In conclusion, the Board found that the second applicant had not substantiated that she was in need of international protection. There were no other grounds for granting her a residence permit in Sweden. 16. On 16 January 2008 the second applicant applied for asylum and a residence permit in Sweden for her daughter, the third applicant. The third applicant made no individual asylum claims. Her father, X, had a permanent residence permit in Sweden. 17. On 20 March 2008 the Migration Board rejected the request. It first noted that a paternity investigation had shown that X was not the third applicant’s father. Instead, Y was found to be her father. He was a Congolese man whose asylum claims had been rejected by the Migration Board and the Migration Court. The Board then noted that the third applicant’s asylum claims were the same as her mother’s and that they had already been examined by the Board. The Board considered that there was no reason to deviate from the assessments made in the second applicant’s case. There were no other grounds for granting the third applicant a residence permit in Sweden. 18. In an official note by the Migration Board, dated 10 October 2008, the following was stated. On 27 August 2008 the second applicant had been admitted to hospital for psychiatric care. Following this, the third applicant had been placed in foster care. On 2 October 2008 the second applicant had been discharged from hospital. She had moved to a social services home, where her ability to take care of the third applicant was being assessed. The social services could not give information about when this assessment would be completed, but it was considered that the second applicant was unable, at that time, to take care of the third applicant without supervision. 19. The second applicant subsequently made several unsuccessful requests to the Migration Board for reconsideration of her case, during which she stated, inter alia, that she was suffering from recurring suicidal thoughts and that, if she were to be expelled to the DRC, it would amount to a return to a life of homelessness, persecution, torture and other inhuman treatment. 20. In May 2010 the second applicant again requested the Migration Board to reconsider her case. She maintained her previous claims and added that she had been admitted to hospital for long periods of time and that she was in need of round-the-clock care. It would not be possible to expel her to the DRC without giving her anaesthetics or strong sedatives, which constituted a permanent impediment to her and the third applicant’s expulsion. The second applicant submitted several medical certificates concerning herself and the third applicant. 21. On 28 May 2010 the Migration Board decided to grant the second and the third applicants permanent residence permits in Sweden. The Board took into account the third applicant’s health status and age and concluded that there were now impediments to expelling her to the DRC. Therefore, she and the second applicant were to be granted permanent residence permits. 22. On 6 September 2012 the Migration Board decided to grant the fourth applicant a permanent residence permit in Sweden on the basis of the ties to the second applicant. 23. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. See Imamovic v. Sweden ([dec.], no. 57633/10, 13 November 2012) for a substantive account of the relevant provisions of this Act. 24. On 1 July 2010 Chapter 5, Section 18, was amended by the following addition: “When assessing what is reasonable under the second paragraph, point 5, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted if the application had been examined before entry into Sweden.” According to the preparatory works, this means that the alien should fulfil all requirements for a residence permit such as, inter alia, holding a valid passport, verified identity and strong family ties (Government Bill 2009/10:137, p. 17). 25. Chapter 12, Section 18, was also amended on 1 July 2010 by the following addition: “When assessing under the first paragraph, point 3, if there is another special reason for a decision not to be executed, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted ... if the application had been examined before entry into Sweden.”
| 0 |
test
|
001-178862
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF LEGLER AND MARYIN v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Access to court)
|
Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions given against unitary enterprises (GUPs, MUPs) and of the lack of any effective remedy in domestic law.
| 1 |
test
|
001-161973
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,016 |
IVANOV v. RUSSIA
| 4 |
Inadmissible
|
Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
1. The applicant, Mr Yevgeniy Viktorovich Ivanov, is a Russian national who was born in 1982 and lives in Moscow. He was represented before the Court by Mr M. I. Trepashkin, a lawyer practising in Moscow. 2. The Russian Government (“the Government”) were represented by Mr G. O. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In June 2009 the applicant, a former policeman, was committed to the Kapotnya detention centre (Следственный изолятор № 7 Капотня) on bribery charges. 5. The applicant was visited nine times by his lawyer before his release on 12 November 2009. During the visits, the applicant was locked inside a metal enclosure which he interchangeably called a partition or a cage, but which the Government called a partition. Two photographs of the visiting area taken by the lawyer, which were not disputed by the Government, show an empty room lit with fluorescent lights, with tiles on the floor and one wall. Against that wall stands an upright, three-sided enclosure about one and a half times a man’s height and 1 by 1.5 m at the base. Its panels are made of finger-thick iron rods crossing at right angles. Mounted on the centre panel is a door secured with a lock. There is a stool inside. 6. The applicant’s lawyer protested against this manner of detaining his client, but the prison guards justified their actions by saying that they were acting on the instructions of the prison governor. 7. Rules for prison visiting areas are regulated by the Ministry of Justice. The Regulations on Remand Prisons (Правила внутреннего распорядка следственных изоляторов уголовно-исполнительной системы, утверждены приказом Минюста РФ от 14 октября 2005 г. № 189) allow an inmate to meet his lawyer one-on-one, with no partition between them. A prison guard may supervise the meeting but may not listen to the participants (§ 145). 8. At the material time, Chapter 25 of the Code of Civil Procedure allowed for judicial review of the acts of executive authorities which impinged on individual rights (Article 254). A court also had the power to order the executive authority to remedy any breaches (Article 258).
| 0 |
test
|
001-163355
|
ENG
|
UKR
|
COMMITTEE
| 2,016 |
CASE OF SHIYANOV v. UKRAINE
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
André Potocki;Ganna Yudkivska;Síofra O’Leary
|
4. The applicant was born in 1951 and lives in Kremenchuk. 5. On 19 June 1998 the applicant’s 17-year-old daughter, M., was found dead in a field in the Kharkiv region. Her body was naked and had numerous injuries. 6. According to the information submitted by the Government, on 20 June 1998 a post mortem was carried out. It established that M. had been strangled and that her body had been dragged to the place where it had been discovered. There was no indication that she had been raped. She had not been pregnant. Nor had she been under the influence of alcohol or drugs. 7. On 22 June 1998 the Kharkiv inter-district prosecutor’s office opened a criminal case in respect of the murder. 8. On 24 June 1998 the applicant was admitted to the proceedings as an aggrieved party. 9. On 28 June 1998 the police inspected the scene of the crime. They discovered the remnants of a fire and two plastic bags not far from the place where M.’s body had been found. Samples of the coal and the bags were collected as material evidence. 10. On 30 June 1998 another examination of the crime scene was carried out and the following objects were found: some matches, two cigarette ends, two plastic bags, a burnt notepad with some notes written by M. (her parents identified her handwriting later). Furthermore, the police discovered the burnt remains of a calendar, some tampons, a student ID with a stamp containing the word “Law” (M. was a student at the Kharkiv Law Academy), and a lighter. 11. On 24 August 1998 a forensic cytological examination established that it was not M. who had smoked the cigarettes. 12. On 1 October 1998 the police seized one of M.’s shoes, which had been discovered by a villager at some distance from the crime scene. 13. On 18 January 1999 a witness stated that on the evening of 18 June 1998 she had twice seen a beige car belonging to a certain B., with two male passengers and a girl resembling M., near the crime scene. The witness also submitted that B. had apparently had the car seat covers changed shortly thereafter. 14. On 14 April 1999 the investigator in the case instructed the police to verify whether B. and his two passengers of 18 June 1998 could have been involved in the murder and to identify the girl who had been seen with them. The police questioned those seen in the car and concluded that sufficient grounds did not exist to treat them as suspects. As regards an inspection of the car and the covers of the seats, it appears that none was carried out at the time as the investigator had to order one again on 22 February 2010. That belated inspection produced no tangible results. 15. The investigation of M.’s murder has been unsuccessful. Between 1998 and 2010 it was suspended at least thirteen times for failure to establish who had committed the murder. At least five of those decisions were quashed as premature and as not based on a comprehensive investigation. In the remaining instances the investigation was resumed without any further details being given in the respective decisions. At least four times (in particular, in 1998, 2001 and 2009) the investigator complained to his supervisors that his instructions to the police had not been complied with. In particular, on 20 January 2009 the investigator, when instructing the police to undertake certain investigative measures, noted that earlier instructions to that effect, given in 2000, had not been followed up. Overall, throughout the period in question, the investigator’s instructions to the police remained the same: to identify all the possible witnesses to the murder and to verify whether any of M.’s acquaintances, or any people with a criminal record living nearby, could have been involved in it. 16. The applicant submitted numerous complaints to the prosecution authorities about the length and ineffectiveness of the investigation. He also put forward his own version of events and mentioned the names of several people whom he suspected of being involved in the crime. He was informed on at least four occasions that there had indeed been omissions in the investigation and that the police officers responsible had been disciplined. As regards the applicant’s requests for access to the case file, they were rejected on the grounds that under the applicable procedural legislation, an aggrieved party could only have such access after the pre-trial investigation had been completed. 17. The applicant also brought a civil claim against the prosecution authorities, but courts at three levels of jurisdiction found against him. 18. There is no information in the case file about any developments in the investigation after 2010.
| 1 |
test
|
001-177070
|
ENG
|
HUN
|
GRANDCHAMBER
| 2,017 |
CASE OF KÁROLY NAGY v. HUNGARY
| 1 |
Inadmissible (Article 35-3-a - Ratione materiae)
|
Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Carlo Ranzoni;Egidijus Kūris;Guido Raimondi;Helen Keller;Iulia Motoc;Jon Fridrik Kjølbro;Julia Laffranque;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Marko Bošnjak;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paulo Pinto De Albuquerque;Síofra O’Leary;Vincent A. De Gaetano;Georges Ravarani
|
8. The applicant was born in 1951 and lives in Gödöllő. 9. In 1991 the applicant took up the position of pastor in the Reformed Church of Hungary (Magyar Református Egyház). His rights and obligations, together with his remuneration, were set out in an appointment letter issued by the Presbytery of the Reformed Parish of Gödöllő on 14 December 2003 (the “Letter of Appointment”). The relevant part of the Letter of Appointment reads as follows: “I. Obligations of the pastor: The tasks defined by ecclesiastical laws and legal provisions, in particular those laid down in Statute no. II of 1994 on pastors and pastoral service and the code of conduct of the Cis-Danubian Ecclesiastical Region; the pastor is expected to perform the aforementioned tasks in the spirit of his oath and to the best of his abilities. In addition, as required by the special needs of his ecclesiastical community, the pastor’s responsibilities include the following: exercising the rights and obligations of management, as detailed in the Hungarian Reformed Church’s Statute 1995/I on Public Education ...” 10. In June 2005 disciplinary proceedings were instituted against the applicant for statements he had made in a local newspaper. At the same time the first-instance ecclesiastical court suspended the applicant’s service with immediate effect pending a decision on the merits in the disciplinary proceedings. He received a letter stating that, under section 82 (1) of Statute no. I of 2000 on the jurisdiction of the Reformed Church of Hungary, during his suspension he was entitled to 50% of his service allowance. 11. The applicant claimed that, following his suspension, he had sent letters to the head of the congregation and to the competent bishop claiming payment of his overdue services allowances, but to no avail. 12. On 27 September 2005 the first-instance ecclesiastical court concluded that the applicant had committed disciplinary offences and removed him from service. On appeal, on 28 March 2006, the second-instance ecclesiastical court upheld that decision. 13. On 26 June 2006 the applicant took his case to the Pest County Labour Court, seeking payment of 50% of his service allowance and other benefits to which, in his view, he should have been entitled during the period of his suspension. Arguing that his suspension had reached its statutory maximum duration on 21 October 2005, he also sought the payment of the entire service allowance from that date until the termination of his service, that is, on 30 April 2006. He argued in substance that his ecclesiastical service was analogous to employment. 14. On 22 December 2006 the Labour Court discontinued the proceedings pursuant to Article 157 (a) in conjunction with Article 130 (1) (f) of the Code of Civil Procedure, holding that the applicant’s claim could not be enforced before domestic courts (“a felperes kereseti kérelmében foglaltak bírói úton nem érvényesíthető igények”). Under section 2 (3) of Statute no. I of 2000 on the jurisdiction of the Reformed Church of Hungary, a pastor’s service with the Church was regulated by ecclesiastical law, whereas a layman’s employment with the Church was governed by the State labour law. Accordingly, since the dispute before it concerned the applicant’s service as a pastor, the provisions of the Labour Code were not applicable in the case. This decision was upheld on appeal. The applicant did not apply for review to the Supreme Court. 15. On 10 September 2007 the applicant lodged a civil action against the Reformed Church of Hungary with the Pest Central District Court, the relevant parts of which read as follows: “The Plaintiff’s service remuneration, as described in his Letter of Appointment, was .... In addition, the Plaintiff was also eligible to an age bonus equal to .... The Plaintiff was also involved in teaching for which he received ... per month. On 23 June 2005 the Respondent suspended the Plaintiff as a pastor and reinstated him to the service roster, which meant he was exempt from all duties until further notice. The Respondent has paid the Plaintiff’s pastoral allowance until 30 June 2005 and his salary as a teacher until 1 May 2006. In view of the above, the Respondent has caused damage to the Plaintiff by not paying his dues according to their standing legal agreement. Plaintiff’s claims are as follows: I. For the period between 1 July 2005 and 21 October 2005, a monthly amount of ... II. For the period between 22 October 2005 and 30 April 2006, an amount of .... III. For the period between 1 May 2005 and 30 April 2006 (12 months) the unpaid teaching fees ... Furthermore I submit that the Plaintiff considered the legal basis of the above dues ... as employment and went to the Labour Court to have them reimbursed. In view of the fact that the Pest County Regional Court’s final decision ... upheld the ruling of the first-instance Labour Court which, for its part, stated that my involvement with the Respondent did not qualify as employment, I, the Plaintiff, hereby seek reimbursement of my loss before the Pest Central District Court.” 16. On 11 December 2007 the respondent Church filed a defence, inviting the court to dismiss the applicant’s claim. 17. On 15 December 2007 the applicant filed another submission with the first-instance court, further elaborating on his claim. The relevant parts of that submission read as follows: “The Plaintiff’s pastoral service was constituted ... on the basis of election by the Reformed Parish of Gödöllő and confirmed by the dean of the ecclesiastical district as well as the bishop of the ecclesiastical region. Its terms were laid down in the Letter of Appointment ... which remained in force during the period indicated in the case. The pastoral service was carried out by the Plaintiff in person. Its content and accomplishment has not been in dispute between the parties. The Plaintiff’s pastoral activities were manifold. In particular, he was responsible for the community services of the Parish – e.g. preaching, handling the sacraments, outreach, evangelisation, maintaining the bond between the Parish and the Church and various related tasks of pastoring, teaching and administration, which included the tutoring of his assistant and deputy pastor. The Plaintiff as pastor, together with the caretaker, represented the Parish and had numerous other administrative tasks as well. As part of his pastoral duties, the Plaintiff was also obliged to take part in management and teaching. Neither the establishment of the pastoral service relationship nor the substance of the resulting mutual obligations was the subject of any dispute between the parties involved. As to the legal classification of the pastoral service relationship itself ... we hold that the Plaintiff’s activity is best characterised as agency because its content and nature correspond to the factual elements of an obligation of means necessitating personal involvement. For the above reason, we consider that the relevant rules are those of the Civil Code on agency contracts ... Despite the fact that the Respondent’s dean – the Plaintiff’s immediate superior –had already confirmed in writing the legal basis and the amount of the fees due for the period of suspension, in its correspondence dated 22 June 2005 ..., these were, in fact, paid only partially. Namely, the pastoral cash allowance was paid only up until 30 June 2005 and the fee due for religious teaching only up until 30 April 2005.” 18. The applicant based his claim in the first place on Articles 277 (1) and 478 (1) of the Civil Code (as in force at the material time) seeking payment of overdue fees stemming from an agency contract he believed he had with the Church. He maintained that for the period from 22 October 2005, when the suspension allegedly became unlawful, until the date of termination of his appointment, he was entitled to a fee for his services, which corresponded to the service allowance set out in his Letter of Appointment. He thus sought enforcement of the agency contract. Alternatively, he based his claim on Articles 318 (1) and 339 (1) of the Civil Code, which provided for damages for breach of the agency contract he had allegedly entered into with the respondent Church. 19. On 2 January 2008 the Pest Central District Court dismissed the applicant’s claim, holding as follows: “An agency contract, according to the particulars of Act IV of 1959 on the Civil Code ... is a mutual legal transaction (Article 474). Such transactions are regarded by the Civil Code as contracts of material exchange, as the Civil Code, in accordance with Article 1 (1), typically regulates pecuniary rights. Contracts, by definition, are between parties with common material interests: they need whatever value the other has to offer. The goal of the contract is to obtain such value from each other. Pursuant to Article 201 (1) of the Civil Code, mutual property services are contracts for valuable consideration – with the notable exception of gratuitous two-party transactions in which one party provides a material service whereas the other is not obliged to do so. The alleged agency contract between the Plaintiff and the Respondent might be gratuitous if the agent receives no payment from the principal. Except that there was no statement from the Plaintiff to that effect. Quite the contrary: he filed the lawsuit with the clear intention of obtaining material gain from the Respondent. Thus it can be said that the Plaintiff based his claim on a non-gratuitous agency contract, as provided for in Article 478 (1) of the Civil Code. In view of the above, this required the Plaintiff to provide some sort of material service, interest or condition in return, something with clearly defined market value. The pastoral service provided by the Plaintiff (according to exhibit no. 3, it also involved preaching, handling the sacraments, outreach, evangelisation and various related tasks of pastoring, teaching etc.), however, does not qualify as material service. It is, for all intents and purposes, religious activity. If the undertaking of mutually agreed conduct is not gratuitous, and the conduct of one of the parties has no material value, then, according to the rules of the Civil Code, there can be no civil-law contract for valuable consideration. Agency contracts, like all contracts, are based on mutual agreement: one party makes a formal proposal containing all the key elements of the deal to another, which, in turn, issues a statement of acceptance – see Article 205 (1) and (2), and Articles 211, 213 and 214 of the Civil Code. The parties involved are free to negotiate terms on the basis of legal parity. The documents submitted show that the Plaintiff’s appointment was an ecclesiastical process, the terms of his service were set out in a Letter of Appointment ... formulated by the Presbytery of his Parish. The Respondent and its officials exercised various rights vis-à-vis the Plaintiff (suspension, reprimand by the ecclesiastical court, relocation to service roster, demotion, etc.). Within the meaning of the Civil Code, the parties did not negotiate the details of the service, and the Plaintiff became a pastor by appointment, not as a result of a binding agreement. Due to the lack of legal parity between the Plaintiff and the Respondent, the Plaintiff did not enter as a civil-law party into a legal relationship with another civil-law party. The lack of binding agreement means that the Plaintiff’s primary claim – with reference to Articles 277 and 478 of the Civil Code – is insufficient to support his case. Pursuant to Article 318 of the Civil Code, the rules of tort liability are applicable to liability for breach of contract. Once again, the lack of binding agreement means there was no breach of contract nor any material damage involved. In view of this, the Plaintiff’s secondary claim is also unfounded. The acknowledgment of debt, by legislative nature and in practice, is a contractual institution which allows one party to affirm its financial obligation towards another. Statements stemming from relationships beyond the control of civil legislation are, for that very reason, neither valid nor binding pursuant to Article 242 of the Civil Code. The letter submitted by the Plaintiff (illegible reference number) as acknowledgement of debt is, in this context, rather irrelevant: the sender does not legally represent the Respondent, which might not endorse, or even share, his opinion. The documents and statements presented by the Plaintiff were sufficient for a review of the case. As the claim was unfounded, the amount at issue was not determined. The hearings of the bishop ... and dean ... were also deemed unnecessary as their opinions feature prominently in the documents and cover all necessary aspects.” 20. On 27 January 2008 the applicant filed an appeal against the first-instance judgment. On 12 October 2008 the respondent Church filed pleadings in reply, requesting the court to dismiss the applicant’s claim. 21. On 17 October 2008 the Budapest Regional Court dismissed the applicant’s appeal and upheld the first-instance decision with the following reasoning: “The first-instance court established the facts correctly and the second-instance court agrees with its decision, but differs in its legal reasoning: Section 13 of Act IV of 1990 provides that the Church and – in accordance with its Constitution – its self-governing bodies are independent legal entities. Pursuant to section 14(2) of the Respondent’s own Statute no. II of 1994 on the Constitution and Government of the Church, a parish is such a legal entity. Section 29 of the same Statute defines the Letter of Appointment as the service contract of Church officials. The Plaintiff’s Letter of Appointment, detailing his pastoral duties and allowances, was issued on 14 December 2003 by the Reformed Parish of Gödöllő. It proves that a legal relationship was established between the Plaintiff and the Parish of Gödöllő, an independent legal entity. In its pleadings ..., the Respondent referred to section 13 of Act IV of 1990 and Article 14 (2) of its own Statute II of 1994, thus confirming that the Parish of Gödöllő ... is an independent legal entity within the Hungarian Reformed Church. In view of the above, the second-instance court came to the conclusion that the Plaintiff’s claim was unfounded vis-à-vis the Respondent, the Reformed Church of Hungary.” 22. On 2 June 2009 the applicant lodged a petition for review with the Supreme Court, in which he stated as follows: “....The Budapest Regional Court held that, based on the Letter of Appointment, the Plaintiff’s legal relationship was with the Reformed Parish of Gödöllő. But, as indicated by us several times, the Letter of Appointment does not mention the lectures on ecclesiastical history the Plaintiff has been giving in a Foundation School. The fees for these lectures were paid by the Respondent to the Plaintiff directly. Our motions to take evidence were dismissed because of the decision of the first-instance court, which the Budapest Regional Court overruled – but it is the lack of this very evidence that caused the second-instance court to disregard the difference between the nature and the remuneration of the above-mentioned activities. Pursuant to Articles 200 (1), 198 (1) and 474 of the Civil Code, a legal relationship – namely agency – is established when one party (the agent) is obliged to provide quality service and the other (the principal) is obliged to pay for the said service in accordance with the agreement. As far as teaching is concerned, the Respondent was the sole principal. The Reformed Parish of Gödöllő had nothing to do with that – which is evident from the fact that the fee was determined according to State standards ... The decisions of the courts are, first of all, only partially compliant with Article 221 of the Civil Code, which lays down the requirement of full justification, and secondly, constitute an infringement of multiple provisions of the Civil Code, namely Articles 200 (1), 198 (1), and much of the content of Article 474. Due to the dismissal of our motions to take evidence, the contradictory decisions of the courts are not based on the true nature of the material service exchanged between the parties, and regard pastoral service and teaching in a Foundation School as one and the same, despite the fact that these activities greatly differ from each other in both nature and practice of execution ...” 23. The respondent Church replied to this petition in a submission dated 28 March 2009. 24. On 28 May 2009 the Supreme Court discontinued the proceedings, finding as follows: “The Plaintiff commenced his action specifically in order to claim fees arising from his contractual relationship with the Gödöllő Parish, as contained in his Letter of Appointment. He did not make any reference to a contract between him and the Gödöllő Parish to provide teaching of church history, nor did he claim any fee in connection with such a contract. He submitted a claim regarding such a contract for the first time in his petition for review [to the Supreme Court]. Consequently, the fact that the lower courts did not analyse that contractual relationship between the parties and did not take evidence regarding that issue cannot be considered an omission on their part ... In order to determine the rules applicable to the agreement in question and to the implementation of the rights and obligations arising from it, it is necessary to have regard to the very purpose of the agreement underlying the Plaintiff’s actual claim as well as the elements thereof defining the parties’ rights and obligations. The first-instance court rightly stated in its assessment that the agreement serving as the basis of the applicant’s claim was not an agency contract under civil law or concluded by and between parties enjoying personal autonomy in the marketing of [goods and services]. The Plaintiff was appointed as a pastor in an ecclesiastical procedure, and the obligations of the Respondent were defined in an appointment letter issued by the assembly of presbyters. The parties established between themselves a pastoral service relationship, governed by ecclesiastical law. Under section 15 (1) of Act no. IV of 1990 on Freedom of Conscience and Religion and on Churches, the Church is separate from the State. Under sub-section (2), no State coercion can be used to enforce the internal laws and regulations of Churches. Relying on the above provisions, the applicant can make a claim under the ecclesiastical law before the relevant bodies of the Reformed Church. The fact that the agreement entered into under ecclesiastical law resembles a contractual agreement under the Civil Code does not entail State jurisdiction or the enforceability of the claim in a judicial procedure within the meaning of Article 7 of the Civil Code. (In the particular case, the basic elements of an agency contract and the execution of such a contract could not be established either.) The Labour Court reached the same conclusion in the earlier proceedings when assessing the claim under State labour law and dismissing its enforcement in judicial proceedings. The first-instance court was right to point out that as the impugned agreement lacked a civil-law legal basis, the court could not examine the applicant’s secondary claim (compensation for breach of contract). On the basis of the above reasoning, there were no grounds to adjudicate on his claim on the merits. The Supreme Court accordingly quashes the final judgment, including the first-instance judgment, and discontinues the proceedings under Articles 130 (1) (f) and 157 (a) of the Code of Civil Procedure ...”
| 0 |
test
|
001-157532
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF KHARLAMOV v. RUSSIA
| 3 |
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)
|
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque
|
5. The applicant was born in 1948 and lives in Orel. At the time of the events the applicant, a Ph.D. in Physics and Mathematics, was a tenured professor in the physics department of the Orel State Technical University. 6. By Order no. 383 of 14 December 2006, the president (ректор) of the Orel State Technical University convened a university-wide conference for the election of the university’s academic senate (ученый совет), its standing governing body. The date of the conference was fixed for 26 December 2006. According to the Regulation on the Composition of the Academic Senate of the Orel University, candidates to the senate were to be nominated at staff meetings in structural entities by open majority vote (section 3 of the Regulation of 12 December 2006). 7. Unhappy about the fact that neither he nor his colleagues in the physics department had been consulted or informed about the nomination and discussion of candidates to the academic senate, the applicant took the floor at the above public conference and spoke as follows: “... the elected academic senate may not be considered a legitimate body and its decisions likewise cannot be considered legitimate. All of them can be challenged in courts. The problem is that the staff or departments did not know anything about the candidates to the academic senate or of their academic achievements; no one nominated those candidates. This is some kind of a private party that is going on, some people have gathered and elected themselves. My rights have been violated: I, as a member of the faculty, have been excluded from the procedure which is of great importance both for me and for the university as a whole – the election of the academic senate. My rights have been breached, and I will complain to courts about the breaches of my rights. The rights of ordinary university employees, ordinary lecturers, have been breached, too: they were removed from the election to the academic senate, this is discrimination. Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.” 8. The Orel University sued the applicant in defamation, claiming that his speech had undermined the professional reputation of the university and of its academic senate. The statement of claim was signed by the university president. 9. The Sovetskiy District Court of Orel reviewed the university statutes and regulations on the procedure for the election of the academic senate and took oral evidence from witnesses. Four witnesses testified that the physics department had not held a meeting for the election of delegates to the conference or nomination of candidates to the senate because the delegates and candidates had been elected and nominated at the meeting between the heads of departments. The staff had been informed about the meeting several days in advance and anyone could attend it. 10. By judgment of 27 February 2007, the District Court found the applicant liable for defamation of the Orel University and its academic senate. According to the judgment, the applicant “publicly accused [them] of a violation of applicable laws [and] commission of a dishonest act”. It also held as follows: “The court cannot agree with the respondent party’s argument that the statements [he had] disseminated at the conference were an expression of an opinion. The statements were made in the affirmative form which is apparent from the minutes of the conference of 26 December 2006, the audio recording of the conference, and testimony by witnesses. The witnesses K. and Sh. who had attended the conference on 26 December 2006 explained that they understood the statements as an affirmation which produced a negative impression on them ... Every legal entity has the right to require that a public appraisal of its activities reflect the real state of affairs. Any negative appraisal of the activities of a legal entity affects its reputation and undermines it. The activity of a legal entity can only be potentially successful if its business reputation in the eyes of other organisations and ordinary citizens is maintained at a certain level, especially in a market economy.” 11. The District Court awarded the Orel University 20,000 Russian roubles (RUB) in damages and RUB 2,000 in court fees and directed that the applicant read the refutation at the following university conference. 12. The applicant filed an appeal, relying in particular on Article 10 of the Convention. He also pointed out that the award in respect of damages exceeded his monthly salary. 13. On 11 April 2007 the Orel Regional Court upheld the District Court’s judgment on the merits but partly amended it. Firstly, it considered that the sentences “All of them can be challenged in courts ... Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.” did not contain any statements about the plaintiff and could not therefore be damaging for its reputation. Secondly, it noted that the sentence “no one nominated those candidates [in the departments]” was actually true because candidates had been nominated at the meetings of department heads. Thirdly, the Regional Court considered it appropriate that the operative part of the District Court’s judgment be read out at the following conference by the president rather than by the applicant. Finally, it offered a more nuanced characterisation of the disputed phrases as a statement of fact: “Mr Kharlamov’s speech contained a statement of fact: the elected academic senate may not be considered a legitimate body and all of its decisions are likewise illegitimate, in other words, the academic senate was unlawfully elected and its decisions are unlawful. This is a verifiable statement. Accordingly, this information is not a subjective opinion of the defendant but a factual allegation.”
| 1 |
test
|
001-169216
|
ENG
|
UKR
|
CHAMBER
| 2,016 |
CASE OF CHERNETSKIY v. UKRAINE
| 3 |
Violation of Article 12 - Right to marry (Article 12 - Found a family;Marry);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
André Potocki;Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev
|
5. The applicant was born in 1963. In 2002 he was convicted and sentenced to fifteen years’ imprisonment. At the relevant time the applicant was serving his sentence in a prison. 6. On 1 February 2005, following a request submitted by the applicant’s wife in accordance with Article 107 of the Family Code, the local civil status registry dissolved their marriage. The applicant was sent a notification about the divorce. 7. Later in February 2005 the applicant and his new female partner, K., were prevented from marrying as the applicant had not obtained a divorce certificate, as required by Article 116 of the Family Code. That document could be obtained exclusively by the applicant at the relevant civil status registry. 8. The applicant requested that he be escorted to the registry in order to obtain the divorce certificate. His request was refused as the domestic law did not provide for the escorting of prisoners on such grounds. 9. On 16 June 2005 the prosecutor informed the applicant that under Article 116 of the Family Code he had the right to remarry after he had obtained a divorce certificate. However, this would be possible only after his release from prison. 10. On 17 August 2005 the Deputy Minister of Justice considered a complaint lodged by the applicant concerning the authorities’ failure to provide him with a divorce certificate for the purpose of remarriage. He stated that under domestic law it was not possible to carry out the relevant actions in prison; nor was it possible to issue a power of attorney for another person to act on behalf of the applicant in relation to that matter. The Deputy Minster informed the applicant that amendments to the domestic legislation had been prepared. 11. On 23 January 2006 and 20 July 2007 the Ombudsman’s Office informed the applicant that they were aware of that issue and that amendments to the domestic legislation had been prepared by the Ministry of Justice. 12. On 30 July 2007 the State Prison Department informed the applicant that he would be able to obtain a divorce certificate after his release from prison. The amendments to the domestic legislation had yet to be considered. 13. On 16 October 2008 the Ministry of Justice issued Order no. 1761/5 providing for a temporary procedure for registering divorces and issuing divorce certificates in prisons. 14. In December 2008 the applicant was personally informed of the procedure introduced by the Ministry of Justice. 15. On 6 February 2009, at the applicant’s request, he was provided with a divorce certificate in prison. 16. On 13 July 2009 the applicant and K. applied for the registration of their marriage. On 14 August 2009 the local civil status registry registered their marriage.
| 1 |
test
|
001-162021
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF STARTSEV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
4. The municipal unitary enterprise Sysolskoye proizvodstvennoye obyedineniye “Zhilkomkhoz” (МУП Сысольское производственное объединение «Жилкомхоз», hereinafter “the company”) was set up by a decision of the administration of the Sysolskiy District. It provided maintenance services in respect of municipal housing, including heating and water supply, maintenance of the sewage systems and renovation and maintenance of the municipal housing stock. 5. The Company had “the right of economic control” (право хозяйственного ведения) over the assets allocated to it in order to carry out its statutory activities. According to its statutory articles all of the company’s property as well as obtained profits belonged to the municipal estate. 6. On 3 March 2006 the Commercial Court of the Komi Republic commenced insolvency proceedings and appointed an external administrator to oversee the company’s administration. 7. On 29 September 2006 the Commercial Court of the Komi Republic ordered the insolvency proceedings in respect of the company. 8. On 28 August 2008 the Commercial Court of the Komi Republic discontinued the insolvency proceedings and ordered the respondent company’s liquidation. The creditors’ claims, which had not been satisfied during the liquidation procedure, including the applicants’ claims, were considered as settled. 9. On 8 September 2008 the company was removed from the Register of Legal Entities. 10. On an unspecified date in 2006 the applicants brought proceedings against the debtor company seeking salary arrears and other work-related payments. 11. On 9 August 2006 and 30 October 2006 the Justice of the Peace of the Sysolskiy Court Circuit of the Komi Republic awarded the applicants salary arrears (the amounts are specified in the Appendix, column no. 2) and compensation for non-pecuniary damage against their employer. On 10 October 2006 and 10 November 2006 respectively the Sysolskiy District Court upheld those judgments on appeal and they became final.
| 1 |
test
|
001-164449
|
ENG
|
PRT
|
CHAMBER
| 2,016 |
CASE OF RAMOS NUNES DE CARVALHO E SÁ v. PORTUGAL
| 3 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Disciplinary proceedings;Article 6-1 - Impartial tribunal;Independent tribunal;Public hearing);Damage - claim dismissed (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
|
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1972 and lives in Barcelos. 6. On 16 November 2010 the High Council of the Judiciary (Conselho Superior da Magistratura, “the HCJ”) instituted disciplinary proceedings against the applicant, who at the time was a judge at the Vila Nova de Famalicão Court of First Instance (disciplinary case no. 333/10). 7. On 13 March 2011 the judicial inspector F.M.J., who was in charge of the disciplinary proceedings, made his submissions, proposing that the applicant be ordered to pay twenty day-fines for having called another judicial inspector, Judge H.G., a “liar” during a telephone conversation, in breach of her duty of propriety. He also found that she had accused H.G., who was responsible for conducting her performance appraisal, of “inertia and lack of diligence”. 8. On 29 March 2011 the applicant submitted a request to the HCJ for Judge F.M.J. to be withdrawn from her case on the grounds that he had breached her right to be presumed innocent and had close ties to the judicial inspector whom the applicant had allegedly insulted. 9. On an unspecified date the applicant filed her pleadings, submitting that the disciplinary proceedings should be declared null and void as there had been a breach of the principles of equality and impartiality and of her right to be heard. 10. On 10 April 2011 Judge F.M.J. requested leave from the HCJ to withdraw from the case, saying that he was the applicant’s “sworn enemy” following the accusations she had made against him in the context of her request for him to withdraw. 11. On an unspecified date the HCJ granted Judge F.M.J.’s request and replaced him with a different inspector, Judge A.V.N. 12. In his final report dated 23 September 2011 the newly appointed inspector Judge A.V.N. proposed that the applicant be ordered to pay fifteen day-fines for acting in breach of her duty of propriety. 13. During the proceedings a witness called by the applicant gave evidence. He stated that he had been present during the conversation in question and that the applicant had not made the alleged remarks. 14. In a decision of 10 January 2012 the HCJ, sitting in plenary, ordered the applicant to pay twenty day-fines, corresponding to twenty days without pay, for acting in breach of her duty of propriety. The HCJ found that it was not appropriate to suspend the fine in the applicant’s case. 15. The formation of the HCJ which made the order against the applicant comprised fifteen members, of whom six were judges and nine were nonjudicial members. 16. Four of the non-judicial members issued a joint dissenting opinion expressing the view that it was not possible to establish in the present case, solely on the basis of H.G.’s statement, that the applicant had called him a “liar”, and finding that the remarks referring to his “inertia” and “lack of diligence” came within the scope of the applicant’s freedom of expression. 17. On an unspecified date the applicant lodged an appeal on points of law with the Judicial Division of the Supreme Court of Justice (Secção de Contencioso do Supremo Tribunal de Justiça), requesting a review of the establishment of the facts. In support of her request the applicant argued that the penalty imposed on her had been disproportionate. 18. On 21 March 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the HCJ’s decision, finding in particular that (i) there was no doubt as to how the rules of European law were to be interpreted, with the result that the request to seek a preliminary ruling from the Court of Justice of the European Union should be rejected; (ii) the Supreme Court of Justice’s task was not to review the facts of the case but simply to verify whether the establishment of the facts had been reasonable; (iii) the applicant had made use of false testimony, a fact that should count against her in determining the penalty to be imposed; (iv) the administrative authority handling the case had not been required to assess whether the fine should be suspended since the present case did not involve a custodial sentence; (v) the accusations of “inertia” and “lack of diligence” which the applicant had made against the judicial inspector H.G. had insulted him, falling short of the minimum ethical standards expected from a judge, and had not come within the scope of freedom of expression. 19. A second set of disciplinary proceedings (case no. 179/11) was opened against the applicant for use of false testimony in the earlier proceedings. 20. On 26 May 2011 the judicial inspector, Judge A.D.P.R., filed submissions against the applicant, accusing her of breaching her duty of loyalty. He did not propose any specific penalty. 21. On 14 July 2011 A.D.P.R. submitted his final report, proposing that the applicant be suspended from her duties for sixty days. 22. On 19 July 2011 the applicant raised a plea of nullity with the judicial inspector in respect of this report, complaining that the penalty in question had not been proposed directly in his submissions. By order of 31 August 2011 A.D.P.R. rejected the applicant’s plea. 23. By a decision of 11 October 2011 the HCJ, sitting in plenary, ordered that the applicant be suspended from her duties for 100 days for acting in breach of her duty of honesty. The HCJ considered that the applicant had given false testimony by asking a witness whom she had called in disciplinary case no. 330/10 to make false statements concerning the allegations against her. The HCJ established the facts taking into account the applicant’s mobile phone records, which had been obtained with her consent at the request of the judicial inspector F.M.J. 24. The HCJ’s decision of 11 October 2011 was taken unanimously, with twelve of its seventeen members present. Of these, seven were judges, including the President of the HCJ, and five were non-judicial members. 25. On an unspecified date the applicant appealed to the Judicial Division of the Supreme Court of Justice against the decision of 11 October 2011. She disputed the facts, alleging that (i) she had not been given a hearing on the subject of the proposed disciplinary penalty, as it had not been specified in the submissions; (ii) the HCJ had altered the legal classification of the acts she had allegedly committed and the circumstances of her involvement in the disciplinary offence; (iii) the Supreme Court of Justice had omitted to give reasons for its decision not to suspend enforcement of the penalty imposed; (iv) the penalty imposed had been disproportionate. 26. In a judgment of 26 June 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the decision of 11 October 2011 on the grounds that (i) it had limited power to review the facts in so far as the appeal was an application to set aside rather than a full appeal on fact and law, regard being had to Article 3 § 1 of the Administrative Courts Code; (ii) adequate reference had been made to the proposed penalty in the judicial inspector’s final report, of which the applicant had also been duly informed; (iii) it had been open to the HCJ to increase the proposed penalty on the grounds that the applicant’s defence related to the facts of the case rather than the proposed penalty; (iv) with regard to the legal reclassification of the facts, the applicant’s rights had been safeguarded since the HCJ, without altering the facts, had adopted a different legal interpretation of the duties that had been breached; (v) the HCJ, which was in charge of the disciplinary proceedings, had not been required to assess whether the applicant’s suspension from duty should be suspended, since no possible custodial sentence had been at stake in the proceedings and the HCJ had enjoyed a degree of discretion in that regard; (vi) the penalty did not appear disproportionate; (vii) in view of the false testimony given by one witness in an attempt to protect the applicant, the HCJ had been entitled, in imposing a penalty, to take into consideration the fact that the applicant had had recourse to a third party in order to tamper with the evidence in the file. 27. A third set of disciplinary proceedings was instituted against the applicant (case no. 269/11) for allegedly asking the judicial inspector, Judge F.M.J., in the course of a private conversation, not to take disciplinary action against the witness who had given evidence on her behalf in the first set of disciplinary proceedings. 28. On 21 December 2011 the judicial inspector, Judge A.D.P.R, submitted his final report, proposing that the applicant be dismissed from her post for acting in breach of her duty of honesty. 29. In her pleadings the applicant admitted having had a private conversation with the judicial inspector, but denied having made such a request to him. 30. In a decision of 10 April 2012 the HCJ, sitting in plenary, ordered that the applicant be suspended from duty for 180 days for acting in breach of her duties of loyalty and propriety. 31. The decision of 10 April 2012 was taken with fourteen of the seventeen members of the HCJ present. Of these, eight, including the President, were judges and six were non-judicial members. One of the judges issued a dissenting opinion to the effect that the facts as established, given their seriousness, warranted a penalty of early retirement or dismissal under section 95 of the Status of Judges Act (see paragraph 38 below). 32. On an unspecified date the applicant appealed against that decision to the Judicial Division of the Supreme Court of Justice, requesting that a public hearing be held so that she could call a witness and present some documents. She complained of the legal reclassification of the facts, the fact that no reasons had been given for the refusal to suspend the penalty, and the disproportionate nature of her suspension from duty. 33. In a judgment of 8 May 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the judgment of 10 April 2012, finding (i) that the applicant’s request for a public hearing should be refused on the ground that it was not the task of the Judicial Division to review the establishment of the facts. Instead, its task was confined by law to verifying that the HCJ had complied with the principles and rules governing the examination of evidence, and in particular that its decision regarding the establishment of the facts had been coherent and reasonable; (ii) that the applicant had produced lengthy pleadings, making it unnecessary to hear legal arguments in oral proceedings; (iii) that the request for evidence to be taken from the witness had been aimed at establishing the content of the draft decision in the applicant’s disciplinary case; this ran counter to the confidentiality of the proceedings leading to the final decision; (iv) that the documents submitted by the applicant had exceeded the scope of the disciplinary proceedings; (v) that the HCJ had considerable discretion regarding issues relating to the law on the determination of the disciplinary offence, which was defined in broad terms in the Status of Judges Act, and that the Supreme Court of Justice could alter that legal classification only in the event of a manifest or gross error concerning the seriousness in disciplinary terms of the applicant’s conduct; (vi) that the Supreme Court of Justice could likewise not review the penalty imposed, but could only determine whether it had been appropriate to the offence and proportionate to it; (vii) that the Supreme Court of Justice was not required to rule on the refusal to suspend the disciplinary penalty imposed, as the proceedings did not fall within the sphere of criminal law and no custodial sentence had been applied. 34. In its judgment of 8 May 2013 the Judicial Division of the Supreme Court of Justice found as follows: “Whether or not a public hearing should be held at an individual’s request in connection with a special administrative action to set aside an administrative act depends on the extent of the Supreme Court of Justice’s powers of review as regards the establishment of the facts. It is clear that a hearing devoted to the production of evidence and discussion of the facts would be useful and meaningful only if the Supreme Court had unlimited jurisdiction to review all the facts established by the impugned decision. If that were the case the Supreme Court of Justice would form its own opinion regarding the evidence and would examine new evidence, going well beyond a review of lawfulness. However, as is clear from the uniform case-law of the Judicial Division, this option is not available in the light of the Status of Judges Act.” 35. On 30 September 2014 the High Council of the Judiciary, sitting in plenary, after grouping together the penalties imposed on the applicant (cúmulo jurídico das penas disciplinares aplicadas) in the three sets of disciplinary proceedings referred to above, unanimously imposed a single penalty of 240 days’ suspension from duty. 36. The decision of 30 September 2014 was final and was taken with twelve of the seventeen members of the HCJ present. Of these, seven, including the President of the HCJ, were judges and five were non-judicial members. The disciplinary penalty of 240 days’ suspension from duty imposed on the applicant was enforced by the national authorities.
| 1 |
test
|
001-157282
|
ENG
|
DEU
|
CHAMBER
| 2,015 |
CASE OF LANGNER v. GERMANY
| 3 |
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
|
André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Síofra O’Leary;Vincent A. De Gaetano
|
5. The applicant was born in 1955 and lives in Pirna. 6. The applicant had been employed as head of the sub-division in charge of sanctioning misuse of housing property (Zweckentfremdung) in the Housing Office of the Municipality of Dresden since 1993. 7. On 9 December 1998 a meeting of the staff of the Housing Office took place in the presence of the Deputy Mayor for Economy and Housing, W., an elected official who, inter alia, governed the Housing Office, and of a number of staff and trade union representatives. Following a short address on the issue of the expiry of the regulation on misuse of housing property by 31 December 1998 given by W., the applicant took the floor and accused W. of having committed perversion of justice (Rechtsbeugung) by ordering the issue of an unlawful demolition permit for a block of flats in 1995/1996. 8. On 11 December 1998 the applicant’s head of division requested the applicant to substantiate his allegations in writing. 9. On 17 December 1998 the applicant submitted several pages of written comments, in which he repeated several times (using bold characters) his allegations that W. had committed perversion of justice by ordering the issue of a demolition permit in 1995/1996 without, at the same time, imposing compensation payments for the loss of housing space caused by the demolition. According to the applicant, W. had “ruthlessly pursued politico-economic interests”. He further submitted that all staff members of his sub-division considered that W. had deliberately discredited their work. Furthermore, W. had unlawfully attempted to dissolve the sub-division, thus putting at risk its staff’s employment. The statement made by W. during the staff meeting had been degrading and cynical and had contained halftruths and lies. W. had not assumed any personal responsibility and did not show any concern for finding a socially acceptable solution to the problems arising from the dissolution of the sub-division. 10. By letter of 24 March 1999 the Municipality of Dresden dismissed the applicant with effect from 30 June 1999. The dismissal was primarily based on the applicant’s statement during the staff meeting. According to the letter of dismissal, the applicant’s accusations against W. had been unjustified. By making these accusations in front of a large number of staff members and representatives of the staff committee and of the trade union, the applicant had damaged his superior’s reputation and thus irrevocably destroyed the mutual trust which was necessary for effective cooperation. It was further observed that the applicant had not availed himself of the possibility of submitting his concerns to his superior or to the Mayor. Finally, it was noted that the applicant had been reprimanded for disloyal conduct on two previous occasions. 11. On 17 July 1999 a local newspaper published a letter to the editor in which the applicant expressed the opinion that the Deputy Mayor W. lacked any competence for resolving problems relating to housing issues. 12. By judgment of 24 May 2000 the Dresden Labour Court (Arbeitsgericht) established that the employment contract had not been terminated by the dismissal since this could not be justified under section 1 of the Unfair Dismissal Act (Kündigungsschutzgesetz, see relevant domestic law, below). The Labour Court did not find it necessary to decide whether the applicant’s allegations had been correct, as they were, in any event, covered by the applicant’s right to freedom of expression. 13. On 8 January 2002 the Saxon Labour Court of Appeal (Landesarbeitsgericht) dismissed the appeal lodged by the Municipality of Dresden. 14. On 6 November 2003 the Federal Labour Court (Bundesarbeitsgericht), upon the Municipality’s appeal on points of law, quashed the judgment of 8 January 2002 and remitted the case to the Labour Court of Appeal (no. 2 AZR 177/02). Under the case-law of the Federal Labour Court, gross insults directed against the employer or the employer’s representative, which constituted a serious violation of the concerned person’s honour, could justify dismissal on grounds relating to the employee’s conduct. In order to establish the seriousness of the violation of honour, it had to be established whether the applicant’s allegations were based on objective facts. Account also had to be taken of whether the criticism had been made among staff members or whether other persons had been present. Finally it had to be considered that employees of the public service had to respect specific obligations under their Code of Conduct. 15. The Federal Labour Court confirmed that the right to freedom of expression always had to be taken into account when assessing inappropriate language in a workplace context and that the applicant’s allegations fell within the scope of his right to freedom of expression. Accordingly, the court had to weigh this right against the protected legal interest with which there had been an interference. 16. The Federal Labour Court considered that the Court of Appeal, when weighing the competing interests, had failed to establish correctly the seriousness of the applicant’s allegations and of the violation of the Deputy Mayor’s personality rights. Under the Criminal Code, perversion of justice was a crime subject to up to five years’ imprisonment. In case of a criminal conviction under this provision, a deputy mayor would automatically lose his office. The conduct of a public service employee had to be measured against a stricter yardstick than that of an employee in the private sector. In particular, the employee was under an obligation to behave in such a way as not to interfere with his public employer’s reputation. Under the Professional Code of Conduct, the employee had to exercise special restraint when openly criticising a superior’s decisions. A public allegation of perversion of justice directed against a superior, in particular if it was unfounded, very seriously violated the superior’s personality rights and interfered, as a rule, with the employee’s professional duties. 17. Accordingly, in order duly to weigh the competing interests in the light of the right to freedom of expression, the Court of Appeal would have to examine whether the applicant’s allegations had been justified or not. It had further to be taken into account that the allegations had been made during a staff meeting. While it was true that criticism made in this context could occasionally be exaggerated or polemic without giving the employer a ground for dismissal, this right was limited by the obligation not to disturb peace in the office. It had to be taken into account in the applicant’s favour that the staff meeting concerned the suppression of the applicant’s field of work and that the atmosphere had been rather tense. However, this did not justify neglecting the fact that the allegation of perversion of justice did not concern the subject matter of the staff meeting, but a single incident which dated back several years and had not been mentioned by the applicant since 1997. The applicant did not make use of the possibility of informing the Mayor about his legal concerns regarding the Deputy Mayor’s decision. At the time of the staff meeting, the decision dated back such a long time that an attempt to put the decision into question must have lacked the prospect of success. Accordingly, it appeared that the applicant’s statement was rather aimed at attacking the Deputy Mayor. 18. It had also to be taken into account that the statement was made in the presence of persons who were not necessarily bound by confidentiality. Accordingly, there was the risk that the applicant’s allegations would leak out of this close circle and be made known to a wider public. The Federal Labour Court finally observed that the applicant’s statement had to be seen in the wider context of his conduct and that the applicant had further exacerbated the conflict by the content of his written comments. 19. On 16 November 2004 the Saxon Labour Court of Appeal quashed the judgment of the Labour Court dated 24 May 2000 and dismissed the applicant’s action. 20. The Labour Court of Appeal considered that the applicant’s dismissal had been justified because the applicant, in his statement at the staff meeting and in his subsequent written submissions, had seriously insulted and slandered the Deputy Mayor by accusing him of perversion of justice. Based on a detailed examination of the factual and legal situation in 1995/1996, the Labour Court of Appeal considered that the decision taken by the Deputy Mayor at that time had been lawful. The applicant’s written submissions of 17 December 1998 demonstrated that he was not willing to accept and implement politically legitimate decisions, if they concerned sanctions for misuse of property by house owners. The content of the letter to the editor (see paragraph 11, above) contained value judgments which did not amount to insult. However, the Deputy Mayor could not be expected to maintain daily co-operation with the applicant after reading this letter in which he had been described as incompetent. The Labour Court of Appeal further observed that the applicant had not revised his opinion during the proceedings. 21. The Labour Court of Appeal further considered that the employer did not have any milder means at its disposal. In particular, it would not have been sufficient to reprimand the applicant and to transfer him to another working position. The court observed that the applicant was currently working in the Public Procurement Office and that there was no negative information about his conduct. This was temporary employment which the applicant had obtained by court order in separate proceedings. The applicant had expressed his readiness to accept employment even at a lower level. However, the Labour Court of Appeal considered that the applicant would not have changed his attitude without his dismissal from office. The Municipality could reasonably expect that the applicant would have carried on with his self-righteous attitude if he had not been dismissed. The Labour Court of Appeal finally considered that the applicant’s chances of finding new employment were low. Nevertheless, the employer’s interest in terminating the employment outweighed the applicant’s interests. 22. On 15 March 2005 the Federal Labour Court dismissed the applicant’s request to be granted leave to appeal on points of law. 23. On 25 August 2010 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint (no. 1 BvR 947/05), without providing reasons.
| 0 |
test
|
001-173468
|
ENG
|
MDA
|
CHAMBER
| 2,017 |
CASE OF GUMENIUC v. THE REPUBLIC OF MOLDOVA
| 3 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković
|
5. The applicant was born in 1978 and lives in Calaraseuca. 6. On 27 July 2005 the applicant was stopped by the traffic police for speeding. 7. By an order of 5 September 2005 the traffic police fined the applicant 60 Moldovan lei (MDL) (the equivalent of some 4 euros (EUR) at the time). The applicant did not challenge the police order. 8. As the applicant failed to pay the fine, on an unspecified date a bailiff applied to the Ocnita District Court to have the fine converted into thirty days’ administrative detention, under Article 26 § 5 of the Code of Administrative Offences (see paragraph 14 below). According to the bailiff, the applicant had been ordered to pay the fine by 28 February 2006; however, he had failed to do so and had thus acted in bad faith. 9. On 26 May 2006, at a hearing conducted without the presence of the parties, the Ocnita District Court accepted the bailiff’s request and ordered the applicant’s administrative detention for a period of thirty days. The document constituting the court’s decision was a pre-printed template which the judge had completed by hand with the specific details of the case, such as the names of the judge, the applicant and the bailiff, the relevant dates, the amount of the fine, the applicant’s address and the number of days of detention to be served by the applicant. It did not contain any indication that the applicant had been summoned to appear at the hearing. 10. At 8 a.m. on 12 June 2006 the applicant was arrested at home and placed in detention. At about 5 p.m. the same day he suffered a heart attack and was taken by ambulance to a hospital. He recovered shortly thereafter and was soon discharged from hospital. 11. On 16 June 2006 the applicant lodged an appeal against the Ocnita District Court’s decision of 26 May 2006, arguing, inter alia, that he had not been summoned to appear at the hearing of 26 May 2006, that he had had no knowledge of the decision of 26 May 2006 prior to his arrest, and that he had not been given a chance to contest the court’s decision before being placed in detention. The applicant also argued that the traffic police’s order of 5 September 2005 imposing a fine on him for speeding had been abusive because the police had no evidence to prove that it had been his car which had been caught speeding and not other cars on the road. 12. On 30 August 2006 the Balti Court of Appeal dismissed the applicant’s appeal, finding that the applicant had not challenged the traffic police’s order of 5 September 2005 within the statutory time-limit. The Court of Appeal did not respond to the applicant’s argument about the failure to summon him to the hearing of 26 May 2006. 13. It does not appear from the materials of the case that the applicant served the rest of the detention term.
| 1 |
test
|
001-167126
|
ENG
|
MKD
|
CHAMBER
| 2,016 |
CASE OF KITANOVSKA STANOJKOVIC AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 3 |
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
|
5. On 25 October 2011 two persons wearing black masks entered the applicants’ house with an intention to rob them. They hit V.K., the applicants’ husband and father, as well as the first applicant, inflicting on them severe injuries. In consequence, on 1 November 2011 V.K. died. After the incident, the first applicant was admitted to hospital where she remained in the intensive care unit until 4 November 2011. 6. On 3 November 2011 the public prosecutor requested that the Skopje Court of First Instance (“the trial court”) launched preliminary proceedings against F.T. (seventeen-year old at the time) on account of aggravated robbery and remanded him in custody. On the same date, the trial court ordered F.T.’s detention for fifteen days. The detention was ordered on account of the risk of him absconding and interfering with the investigation, namely “influencing the victims witnesses, in particular since they live in (F.T.’s) vicinity”. 7. By a decision of 17 November 2011, an investigating judge of the trial court extended F.T.’s detention for fifteen days for the same reasons as before. On 1 December 2011 the investigating judge ordered his release finding that “his attendance at the trial can be secured with a more lenient measure (seizure of passport and obligation to report to the court) ... Taking into account the individual circumstances and needs of [F.T.], his age, the fact that he is a regular student in third year of secondary school and a young man in development, [the court] considers that there are grounds for termination of the detention order ...” 8. On 13 January 2012 the public prosecutor lodged an indictment against F.T. and a certain S.G. They were indicted on charges of aggravated robbery with respect to the incident of 25 October 2011. 9. On 7 June 2012 the Skopje Court of First Instance, after it had heard evidence from the accused, the applicants, witnesses, experts, representatives of a Social Welfare Centre (who suggested that F.T. should be sentenced to a prison term if he was found guilty), and admitted considerable material evidence, including several expert reports (including a psychiatric expert report which confirmed that F.T. had been mentally fit when the crime had been committed) established the following: “At 1.30 a.m. on 25 October 2011 the accused S.G. and F.T., on the basis of a prior agreement, arrived [at the applicants’ house] with an intention to steal movable objects. With the use of force and dangerous object – a metal hammer with a wooden grip, they intentionally inflicted serious injuries on the now deceased V.[K.] and [the first applicant] in order to achieve their aim ... Wearing black masks, [S.G. and F.T.] arrived in front of [the applicants’ house] ... V.K. opened the door. They both entered the house. S.G. immediately started hitting V.K. on the head and hands with the metal hammer. V.K. sustained serious injuries-head wounds, multi-fragmented fractures accompanied with brain haemorrhages under the hard tissues of the brain ... linear skull fracture, as a result of which he died on 1 November 2011. Soon after, L.J., [the first applicant’s daughter and the second and third applicants’ sister] appeared and started screaming. S.G. then physically assaulted her by hitting her on the head ... She fell down, pretending to be dead. After [the first applicant] had heard L.J.’s screaming, she arrived in the kitchen in order to see what was going on, but when she arrived in the living room, she was assaulted by the minor F.T. He punched her hard in the head, inflicting severe injuries, namely four head wounds [cuts and bruises]; two sizeable skull fractures; haemorrhages under the soft tissues of the brain; and a brain lesion in the area of the left temple ... ... [the first applicant], V.[K.] and L.[J.] were taken by ambulance to Skopje Hospital. They were admitted by I.S., a doctor who was on duty at the time, who noted the serious physical injuries which both V.[K.] and [the first applicant] had sustained. They were kept in hospital, since their injuries were life-threatening ...” 10. As stated in the judgment, “[the second applicant] was not able to recognise her parents given their injuries. Her mother was so much beaten that she could not see; her eyes were closed and her face was so much coloured (модро) that she could not recognise her.” 11. The court found S.G. and F.T. guilty of aggravated robbery and, relying on Article 237(4) in relation to sub-paragraph 1 of the Criminal Code (see paragraph 16 below), sentenced them to six and five years’ imprisonment respectively. The time which F.T. had spent in pre-trial detention was to be deducted from the total length of his custodial sentence. As victims, the applicants were advised to pursue compensation claims by means of a separate civil action for damages. 12. By judgments of 26 November 2012 and 12 March 2013, the Skopje Court of Appeal and the Supreme Court, respectively, dismissed F.T.’s complaints about alleged errors on the facts and law, as well as alleged violations of the procedural rules. Both courts upheld the lower court’s judgment finding no grounds to depart from the facts as established by the trial court and the reasons given for the conviction. 13. On 2 January 2013 an enforcement judge responsible for execution of the custodial sentence issued an incarceration order (упатен акт) in respect of F.T. According to that order, F.T. was required to report to Ohrid Detention Centre on 30 January 2013 in order to serve the sentence. On 17 January 2013 F.T. requested that the sentence be postponed for family and health reasons. This request was dismissed by decisions of 21 January and 12 February 2013 by the enforcement judge and a three-judge panel of the trial court, respectively. On 21 February 2013 the detention centre informed the enforcement judge that F.T. had not arrived at the facility on the specified date. By letters dated 28 February, 8 April and 20 May 2013, the enforcement judge notified the trial court in Skopje responsible for minors about F.T.’s failure to report to the detention facility and sought instructions “given the urgent nature of the proceedings”. These letters remained unanswered. 14. The Government submitted that after the above correspondence, no enforcement judge had been appointed to deal with the case for over eight months. After such a judge had been appointed, on 27 March 2014 another incarceration order had been issued in respect of F.T. The latter sought, to no avail, for the custodial sentence to be adjourned. On 2 May 2014 the detention centre advised again that F.T. had not arrived at the facility. 15. On 30 June 2014 the enforcement judge ordered F.T.’s arrest. F.T. was arrested on 10 July 2014 and started serving his custodial sentence on 11 July 2014. The detention centre confirmed by letter that F.T. would remain in custody until 27 June 2019.
| 1 |
test
|
001-184498
|
ENG
|
TUR
|
COMMITTEE
| 2,018 |
CASE OF ALTUN AND OTHERS v. TURKEY
| 4 |
Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Manifest religion or belief)
|
Paul Lemmens;Stéphanie Mourou-Vikström
|
5. The applicants were born in 1964, 1957 and 1947 respectively. The first and third applicants live in Ankara. The second applicant left Turkey subsequent to his criminal conviction giving rise to the present application. 6. On 21 August 2006 the applicants took part in a religious ceremony (mevlüt) on the premises of the Altındağ district branch of the Party for a Democratic Society (Demokratik Toplum Partisi – “the DTP”) in Ankara, at which they paid tribute to three members of the PKK, an illegal armed organisation, who had been killed by the security forces. One of the deceased was the first applicant’s nephew. The second applicant was the head of the Ankara branch of the DTP at the relevant time. The third applicant was a member of the DTP and a friend of the first applicant. 7. On 23 November 2007 the Ankara public prosecutor filed a bill of indictment with the Ankara Assize Court, charging the applicants and a number of other persons with dissemination of propaganda in favour of the PKK, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), on account of their participation in the ceremony of 21 August 2006. According to the indictment, during the ceremony photographs of the deceased and the PKK’s flag were displayed at the venue and a film about the lives of the deceased was shown. In addition, the second applicant, the head of the Ankara branch of the DTP, made the following statement: “Our fears and worries continue. People are still being killed. In such a context, we would like this mevlüt to be a moment of peace and fraternity.” 8. On 24 September 2008 the Ankara Assize Court convicted the applicants of disseminating propaganda in favour of the PKK and sentenced them to ten months’ imprisonment each. In its judgment, the Assize Court observed, firstly, that the persons in whose memory the ceremony had been held were members of a terrorist organisation and that they had been killed by the security forces during an operation against that organisation. It also took the view that the choice of venue for the ceremony – the premises of a political party – and the fact that the PKK flag had been spread over the tables and photographs of members of the organisation had been displayed, contributed to raising serious doubts as to the applicants’ submissions that they had taken part in the ceremony in observance of their religious duties. The court considered that the applicants had committed the offence of dissemination of propaganda given that they had shared the feelings of mourning and sorrow for the deceased who had been involved in terrorism. It further considered that the venue where the ceremony had been held had turned into a propaganda venue in favour of the PKK. 9. Following an appeal lodged by the applicants, their conviction was upheld by a final decision of the Court of Cassation on 8 March 2010. 10. The first and third applicants served their prison sentences.
| 1 |
test
|
001-173265
|
ENG
|
SWE
|
CHAMBER
| 2,017 |
CASE OF RUMINSKI v. SWEDEN
| 4 |
No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing)
|
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Iain Thorburn Cameron;Luis López Guerra;Pere Pastor Vilanova
|
6. The applicant is a Swedish national born in 1950. He lives in Jordbro. 7. The applicant suffered for many years from, inter alia, pain in his back and legs and numbness in his right arm. He alternated between full and part-time sick leave from 1996 to 2001. In 1999 he received a partial early retirement pension and in 2002 a full disability pension. 8. In 2003 he applied for life annuity and alleged that his physical problems had been caused by his former employment as a driver (1973 to 1974), as a dairy worker (1974 to 1984) and as a food science technician (1984 to 1991). The Social Insurance Office (Försäkringskassan) appointed an in-house specialist in orthopaedic surgery who, in a written statement, concluded that there was not a high degree of probability (hög grad av sannolikhet) that any harmful element in the applicant’s former employment had caused his problems. 9. On 17 May 2005, after having held an oral hearing, the Social Insurance Office rejected the application. Referring to, inter alia, the specialist statement by the insurance doctor, it was held that the applicant had not been subject to any harmful influences which, with a high degree of probability, could have caused or aggravated his problems. 10. The applicant appealed to the County Administrative Court (förvaltningsrätten) of Stockholm. On 19 April 2007 the court, after having held an oral hearing, upheld the Social Insurance Office’s decision in full. The court found that, although it was scientifically known that employees in the food industry had a statistically high risk of injury, the circumstances in the applicant’s case had to be taken into account. The applicant’s back problems had appeared after barely two years in the industry and he suffered from degenerative changes to his back. Against that background, the medical investigation and other material did not adequately support the conclusion that the applicant, in his work, had been subject to any harmful influences which, with a high degree of probability, could have caused or aggravated his problems. 11. Upon further appeal to the Administrative Court of Appeal (kammarrätten) of Stockholm, the applicant submitted, inter alia, a medical statement (epikris) issued in February 2008 by the Centre of Public Health, Occupational and Environmental Medicine (Centrum for folkhälsa, arbets och miljömedicin). According to the medical statement, there were reasons to believe that the applicant’s work had caused his problems. 12. In a written statement to the appellate court, the Social Insurance Office questioned the conclusions in the medical statement as they were based on information about exposure which was to a high degree uncertain. Furthermore, there were medical records from 1997 in which the applicant was held to be fully able-bodied and in which it was noted that no somatic evidence had been found in support of the applicant’s symptoms. 13. On 17 March 2008, the Administrative Court of Appeal granted leave to appeal. The applicant requested an oral hearing in the case but, on 5 September 2008, the court rejected the request. It referred to the nature of the case and to the fact that an oral hearing had been held before the County Administrative Court. The applicant was given the opportunity to submit further observations. 14. In a judgment of 27 October 2008, the Administrative Court of Appeal upheld the lower court’s judgment in full. It first gave an account of the parties’ submissions and the evidence relied upon, including the medical statement of February 2008, and then stated the following reasons: “The medical and other evidence in the case does not demonstrate that the applicant has been exposed to any such harmful influences in his work which could, with a high degree of probability, have caused his problems. His back-related and other problems can thus – as has been found also by the County Administrative Court and the Social Insurance Office – not be defined as a work-related injury. [The applicant] is therefore not entitled to life annuity according to the [Work Injury Insurance Act]. The appeal must consequently be rejected.” 15. The applicant appealed to the Supreme Administrative Court (Högsta förvaltningsdomstolen). He complained of the lack of reasoning in the Administrative Court of Appeal’s judgment and argued that that court’s refusal to hold an oral hearing had infringed his right to a fair trial within the meaning of Article 6 of the Convention. 16. On 4 August 2009, the Supreme Administrative Court refused leave to appeal. 17. On 3 February 2010 the applicant lodged an application with the Court, complaining that his right to a fair trial under Article 6 of the Convention had been infringed because the Administrative Court of Appeal had refused to hold an oral hearing and its judgment had not been sufficiently reasoned. 18. This application was declared inadmissible by the Court on 21 May 2013 for non-exhaustion of domestic remedies. The Court found that the applicant had failed to lodge a claim with the Chancellor of Justice (Justitiekanslern) or the ordinary courts to seek compensation for the alleged breaches of the Convention (Ruminski v. Sweden (dec.), no. 10404/10, 21 May 2013). 19. Consequently, on 30 December 2013, the applicant lodged a claim for compensation for the alleged breaches of the Convention with the Chancellor of Justice. He argued that the Administrative Court of Appeal’s lack of reasoning, as well as its refusal to hold an oral hearing, had infringed his right to a fair trial within the meaning of Article 6 of the Convention. He requested 50,000 Swedish kronor (SEK) for non-pecuniary damage. 20. The Chancellor of Justice communicated the case to the Administrative Court of Appeal which submitted that its handling of the case had been in accordance with domestic law as well as the Convention. In response, the applicant maintained, and developed the grounds for, his claim. 21. On 15 January 2015 the Chancellor of Justice rejected the applicant’s claim. As concerns the lack of an oral hearing, the Chancellor of Justice noted that the Social Insurance Office and the County Administrative Court had held an oral hearing and consequently, in accordance with the Court’s case-law, a less strict standard applied to the requirement to hold a hearing before the appellate court. Thus, in view of the character of the case and the fact that the applicant had been given the opportunity to finalise his submissions in writing and the court had had access to substantial written evidence, the Chancellor of Justice concluded that there had been no breach of the Convention in this respect. 22. As concerns the Administrative Court of Appeal’s alleged lack of reasoning, the Chancellor of Justice referred extensively to the Court’s case law on this matter and then made the following evaluation. The Administrative Court of Appeal had, in its judgment, accounted for the applicant’s arguments and the new evidence he had submitted before it. It had further accounted for the considerations and conclusions drawn from the evidence submitted by the parties, namely, that the investigation in the case did not demonstrate that the applicant had been exposed to any such harmful influences in his work which, with a high degree of probability, could have caused his problems. Thus, the Chancellor of Justice found that the Administrative Court of Appeal had taken a stance on the central and decisive question in the case, that is, whether the applicant had been exposed to harmful influences in his work. While the Chancellor noted that it would have been preferable, for pedagogical reasons, for the court to have given clearer grounds for why the applicant’s evidence had not been sufficient, she concluded that the reasoning was not so deficient that the applicant’s right to a fair trial under Article 6 of the Convention had been infringed. 23. At the relevant time, provisions on work injuries were set out in the Work Injury Insurance Act (Lag (1976:380) om arbetsskadeförsäkring), which covered all people working in Sweden. A person whose ability to earn an income had been impaired due to a work-related injury was in some specified situations eligible for life annuity (Chapter 4, section 1). The term “work-related injury” referred to injuries resulting from accidents or other harmful effects at work. “Other harmful effect” meant the influence of a factor that with a high degree of probability might cause the kind of injury suffered (Chapter 2, section 1(1)). If an insured person had suffered an accident or another harmful effect, the injury was to be considered to have been caused by the harmful effect, if that causal link was highly probable (Chapter 2, section 2). The standard of proof was somewhat mitigated on 1 July 2002, but that amendment did not apply to the applicant’s case. 24. The administration of justice before the administrative courts is regulated by the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291). According to section 30 of the Act, the determination of a case by a court must be based on what is contained in the documents and what has otherwise been established in the case. The decision must state the reasons that determined the outcome.
| 0 |
test
|
001-147867
|
ENG
|
ARM
|
CHAMBER
| 2,014 |
CASE OF GHARIBYAN AND OTHERS v. ARMENIA
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
|
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
6. The applicants were born in 1946, 1954 and 1985 respectively and live in Yerevan. 7. The applicants jointly owned a flat which measured 44.1 sq. m. and was situated at 25 Byuzand Street, Yerevan. 8. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs for town-planning purposes, having a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. A special body, the Yerevan Construction and Investment Project Implementation Agency (hereafter, the Agency) was set up to manage the implementation of the construction projects. 9. On 7 September 2004 the applicants’ flat was valued upon the request of the Agency by a valuation organisation. The market value of the flat was found to be 16,350 United States dollars (USD). 10. By a letter of 14 January 2005 the Agency informed the applicants that their flat was subject to expropriation and that it had been valued at USD 16,350 by an independent licensed organisation. An additional sum of USD 12,638.55 was offered to the applicants as a financial incentive if they signed an agreement within five days. 11. The applicants did not accept the offer, not being satisfied with the amount of compensation offered. 12. On an unspecified date the Agency lodged a claim against the applicants, seeking to oblige them to sign an agreement on the taking of their flat for State needs and to have them evicted. 13. On 1 March 2005 the Kentron and Nork-Marash District Court of Yerevan granted the Agency’s claim, ordering the applicants to sign the agreement for the total amount of USD 16,350. 14. On 15 March 2005 the applicants lodged an appeal. 15. On 30 March 2005 the Civil Court of Appeal granted the Agency’s claim upon appeal. 16. On 13 April 2005 the applicants lodged an appeal on points of law, in which they argued, inter alia, that the deprivation of their property was not prescribed by law as required by Article 28 of the Constitution. 17. On 26 May 2005 the Court of Cassation decided to dismiss the applicants’ appeal. 18. On an unspecified date the awarded sum was paid to the applicants.
| 1 |
test
|
001-178877
|
ENG
|
NOR
|
CHAMBER
| 2,017 |
CASE OF STRAND LOBBEN AND OTHERS v. NORWAY
| 3 |
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-3-a) Ratione personae;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
|
5. In May 2008 the first applicant turned to the child welfare authorities because she was pregnant and was in a difficult situation: she did not have a permanent home and was temporarily staying with her parents, the fourth and fifth applicants. 6. When the first applicant was twenty-eight weeks’ pregnant she visited the local hospital and requested a late abortion. On 1 July 2008 the hospital sent a notice to the child welfare authorities indicating that the applicant was in need of guidance concerning the unborn child and follow-up with regard to motherhood. It also indicated that she needed to stay at a parent-child institution (“family centre”). The child welfare authorities opened a case with the first applicant’s consent. She agreed to stay at a family centre for three months after the child was born, so that her ability to give the child adequate care could be evaluated. 7. On 25 September 2008 the first applicant gave birth to a son, X, the second applicant. The identity of X’s father was unknown to the authorities and the first applicant refused to reveal his name. Four days later, on 29 September 2008, the first applicant and X moved to the family centre. For the first five days the fourth applicant (X’s grandmother) also stayed with them. The staff soon became concerned about the first applicant’s parenting abilities and X’s development. On 14 October 2008 they asked for an emergency meeting with the child welfare authorities because X had lost a lot of weight and the first applicant did not show any understanding of his needs. 8. On 17 October 2008 the first applicant withdrew her consent to stay at the family centre. She wanted to leave and take X with her. On the same day the child welfare authorities decided to take X into immediate compulsory care and place him in a foster home on an emergency basis. In the decision they stated that the family centre’s staff had had to check on the family every third hour to make sure that X was receiving enough food. Without those checks, they doubted whether X would have survived. After the placement, the first applicant had weekly half-hour visits with X. The fourth applicant (the grandmother) was present at most of the visits, the fifth (the grandfather) at some of them. 9. The first applicant appealed against the decision of the child welfare authorities to the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker), claiming that she and X could live together with her parents. Her mother, the fourth applicant, was staying at home and was willing to help take care of X. They were also willing to accept help from the child welfare authorities. 10. On 23 October 2008 the family centre drew up a report of the first and second applicants’ stay. The report stated, inter alia: “The mother does not care for her child in a satisfactory manner. During the time the mother and child have stayed [at the family centre] ..., the staff here ... have been very concerned that the child’s needs are not being met. In order to ensure that the child’s primary needs for care and food are met, the staff has intervened and followed-up the child closely day and night. The mother is not able to meet the boy’s practical care needs. She has not taken responsibility for caring for the boy in a satisfactory manner. The mother has needed guidance at a very basic level, and she has needed advice to be repeated to her several times. Throughout the stay, the mother has made statements that we find very worrying. She has expressed a significant lack of empathy for her son, and has several times expressed disgust with the child. The mother has demonstrated very little understanding of what the boy understands and what behaviours he can control. The mother’s mental functioning is inconsistent and she struggles considerably in several areas that are crucial to the ability to provide care. Her ability to provide practical care must be seen in light of this. The mother’s mental health is marked by difficult and painful feelings about who she herself is and how she perceives other people. The mother herself seems to have a considerable unmet care need. Our assessment is that the mother is incapable of providing care for the child. We are also of the opinion that the mother needs support and follow-up. As we have verbally communicated to the child welfare service, we believe it to be important that the mother is taken especially closely care of in the time following the emergency placement. The mother is vulnerable. She should be offered a psychological assessment and treatment, and probably needs help to find motivation for this. The mother should have an individual plan to ensure follow-up in several areas. The mother has resources (cf. the abilities tests) that she needs help to make good use of.” 11. On 26 October 2008 the County Social Welfare Board rejected the appeal (see paragraph 9 above). It concluded that it was the first applicant who would be responsible for the daily care of X, not the fourth applicant, and that the first applicant was unable to provide the care that X needed. Furthermore, the fourth applicant had stayed with the first applicant and X during the first days at the family centre, but had not noticed the first applicant’s lack of parenting skills, even though it had been obvious to the staff. 12. On 27 October 2008 X was sent to a child psychiatry clinic for an evaluation. The team at the clinic carried out six different observations between 3 and 24 November 2008. Their conclusions were set out in a report dated 5 December 2008, which read, inter alia: “[X] was a child with significantly delayed development when he was sent to us for evaluation and observations. Today he is functioning as a normal two-month-old baby, and has the possibility of a good normal development. He has, from what can be observed, been a child at high risk. For vulnerable children the lack of response and confirmation, or other interferences in interaction, can lead to more or less serious psychological and developmental disturbances if they do not get other corrective relationship experiences. The quality of the earliest interaction between a child and the closest caregiver is therefore of great importance for psychosocial and cognitive development. [X] bears the mark of good psychosocial and cognitive development now.” 13. The first applicant appealed against the Board’s decision of 26 October 2008 to the City Court (tingrett) which, on 26 January 2009, upheld it in full. In the judgment the court found that X had shown signs of both psychological and physical neglect when he was taken into local authority care. Moreover, it did not find that the first applicant’s abilities to take care of X had improved or that the support of the fourth and fifth applicants would be sufficient to ensure that X was given adequate care. The first applicant did not appeal to the High Court. 14. Following the judgment by the City Court on 26 January 2009, the local authorities applied to the County Social Welfare Board for a care order, submitting that the first applicant lacked parenting skills. 15. On 2 March 2009 the Board accepted the child welfare authorities’ application. X remained in the foster home where he had already been placed on an emergency basis in October 2008, when first taken into care (see paragraph 8 above). The Board also decided that contact rights for the first applicant should be fixed at six two-hour visits per year, under supervision. It concluded, on the basis of the report from the family centre, that if X were returned to the first applicant, there would be serious deficiencies in both the physical and psychological caregiving, which could not be remedied with assistance measures. For those reasons the Board found that it would be in the best interests of X to be placed in care. 16. The first applicant appealed against the Board’s decision and again submitted that the authorities had not tried to intervene in other ways before immediately taking X into care, and that the decision was based on insufficient evidence. 17. On 19 August 2009 the City Court overturned the Board’s decision and decided that X should be reunited with the first applicant, but that there was a need for a readjustment period. It found, inter alia, that X’s problems with weight gain could have been due to an eye infection. 18. As a consequence of the judgment, the first applicant’s visits with X were increased with the goal of reunification. According to the child welfare authorities, the visits were characterised by hostility from the first applicant and her parents towards the foster mother. The authorities claimed that after the visits, X had reacted strongly, he had become tired, anxious and insecure, and his sleeping patterns had changed. 19. The child welfare authorities appealed against the City Court’s judgment and concurrently applied for its implementation to be suspended. They claimed that it was unlikely that the eye infection could have been the reason for X’s slow weight gain. Moreover, the first applicant had had visits with X, but they had not worked well even though she had been given advice on how to improve them. X had had strong reactions after the visits. 20. On 8 September 2009, the City Court decided to suspend enforcement of its judgment until the High Court had adjudicated the case. 21. On 9 October 2009, the child welfare authorities decided to appoint two experts, a psychologist, B.S., and a family therapist, E.W.A., who submitted their report on 20 February 2010 (see paragraph 29 below). 22. Meanwhile, on 12 October 2009, the High Court (lagmannsrett) granted leave to appeal on the ground that the ruling of, or the procedure in, the City Court had been seriously flawed (see paragraph 66 below). It also upheld the City Court’s decision to suspend the implementation of the judgment. 23. On 3 March 2010, the High Court appointed an expert to assess the case, psychologist M.S., who also submitted a report. 24. In its judgment of 22 April 2010, the High Court confirmed the Board’s decision that X should be taken into compulsory care. It also reduced the first applicant’s contact rights to four two-hour visits per year. 25. The High Court had regard to the information in the report produced by the family centre on 23 October 2008 (see paragraph 10 above). It also took account of the family consultant’s testimony before the court, in which it had been stated that the first applicant’s mother had lived with her at the family centre for the first four nights. It went on to state: “It was particularly after this time that concerns grew about the practical care of the child. The agreement was that [the first applicant] was to report all nappy changes etc. and meals, but she did not. The child slept more than they were used to. [The family consultant] reacted to the child’s breathing and that he was sleeping through meals. Due to weight loss, he was to be fed every three hours around the clock. Sometimes, the staff had to pressure the mother into feeding her son.” 26. The High Court found that the family centre had made a correct evaluation and – contrary to the City Court – considered it very unlikely that the evaluation would have been different if X had not had an eye infection. 27. Furthermore, the High Court referred to the report of 5 December 2008 from the child psychiatry clinic (see paragraph 12 above). It also took into account the report of the court-appointed expert, M.S. (see paragraph 23 above). 28. As the stay at the family centre had been short, the High Court found it appropriate to consider the first applicant’s behaviour (“fungering”) during the contact sessions that had been organised subsequent to X’s placement in foster care. Two persons had been entrusted with the task of supervising the sessions, and both had written reports, none of which had been positive. The High Court stated that one of the supervisors had given an “overall negative description of the contact sessions”. 29. The High Court also referred to the report of the psychologist and the family therapist appointed by the child welfare authorities (see paragraph 21 above). They had assessed X in relation to the reactions that he had shown after visits from the first applicant. In their report, they noted, inter alia: “there does not seem to be much contact between the mother and [X], including in the periods with frequent contact sessions. He turns away from his mother and prefers to seek contact with others. He tries to distance and protect himself by protesting against his mother, by refusing to eat, by not looking at her and then seeking out the person to whom he has a secure attachment, namely his foster mother. [X] becomes uncertain and insecure when he is not ‘read’ and understood. ... ... the biggest source of stress for [X] is probably not meeting his mother and her extended family during the contact sessions in itself, but the amount of contact and the pressure arising from [utterances to the effect that] ‘now you’re coming back home’, and an atmosphere dominated by the mother’s hostility towards the foster mother. It is also a problem that the mother makes negative and offensive statements about the foster mother, so that the atmosphere becomes unpleasant and insecure. It is concluded that [X] has reached his tolerance threshold for contact on the occasions when he has fallen asleep immediately once the contact session is over, when he has cried afterwards, been difficult to regulate and calm down, and had difficulties sleeping.” 30. Furthermore, the High Court noted that the court-appointed psychologist, M.S. (see paragraph 23 above), stated in court that the contact sessions had appeared to be so negative that she was of the opinion that the mother should not have right of access to her son. The contact sessions were, in her view, “not constructive for the child”. In conclusion to the question of the first applicant’s competence as a carer, she stated in her report that the stay at the family centre had illustrated that the first applicant “had problems handling and retaining information in such a manner that it could be used to guide her behaviour”. She went on to state: “It is not a question of a lack of willingness, but of an inadequate ability to plan, organise and structure. Such manifestations of cognitive impairment will be invasive in relation to caring for the child and could result in neglect.” 31. The High Court agreed with the conclusion of expert M.S., before proceeding to the question whether assistance measures could sufficiently remedy the shortcomings in the first applicant’s lack of parenting skills. In that respect, it noted that the reasons for the deficiencies in competence as a carer were crucial. The High Court referred at this point to the expert’s elaboration on the first applicant’s medical history, namely how she had suffered from serious epilepsy since childhood and until brain surgery had been carried out in 2009, when the first applicant had been 19 years old. 32. The High Court noted that expert M.S. had also pointed out that the first applicant’s medical history must necessarily have affected her childhood in several ways. Her summary as regards the illness and its consequences read as follows: “Anamnestic information from the school, the specialist health service and the family provides an overall picture of weak learning capacity and social functioning from early childhood into adulthood. [The first applicant] performed poorly at school despite good framework conditions, considerable extra resources and good efforts and motivation on her own part. It is therefore difficult to see any other explanation for her performance than general learning difficulties caused by a fundamental cognitive impairment. This is underlined by her consistently low IQ score – regardless of the epilepsy surgery. She also had problems with socio-emotional functioning, which has also been a recurring topic in all documents that deal with [the first applicant’s] childhood and adolescence. A lack of social skills and social adaptation is reported, primarily related to social behaviour that is not adequate for her age (‘childish’) and poor impulse control. It is also stated that [the first applicant] has been very reserved and had low self-confidence, which must be seen in conjunction with her problems.” 33. The High Court based its assessment on the description of expert M.S. concerning the first applicant’s health problems and the impact they had had on her social skills and development. It further noted that placement at a family centre (see paragraphs 7-8 above) had been attempted as an assistance measure. The stay had been supposed to last for three months, but had been interrupted after just under three weeks. As a condition for staying longer, the first applicant had demanded a guarantee that she be allowed to take her son home with her after the stay. The child welfare authorities could not give such a guarantee, and the first applicant had therefore returned home on 17 October 2008. 34. The High Court noted that relevant assistance measures were assumed to consist of a supervisor and further help and training in how to care for children. However, the High Court found that it would take so long to provide the first applicant with sufficient training that it was not a real alternative to continued foster-home placement. Furthermore, the result of such training was uncertain. In this connection, the High Court attached weight to the fact that both the first applicant and her immediate family had said that they did not want follow-up or assistance if X was returned to them. It agreed with the conclusions of the court-appointed expert, M.S., who had stated in her report: “In my assessment, there are grounds for claiming that there were serious deficiencies in the care the child received from the mother, and also serious deficiencies in terms of the personal contact and security he needed according to his age and development. [The first applicant’s] cognitive impairment, personality functioning and inadequate ability to mentalise make it impossible to have a normal conversation with her about the physical and psychological needs of small children. Her assessments of the consequences of having the child returned to her care and what it will demand of her as a parent are very limited and infantile, with her own immediate needs, there and then, as the most predominant feature. It is therefore found that there is a risk of such deficiencies (as mentioned above) continuing if the child were to live with his mother. It is also found that satisfactory conditions for the child cannot be created with the mother by means of assistance measures under the Act relating to Child Welfare Services, section 4-4 (e.g. relief measures in the home or other parental support measures), due to a lack of trust and a reluctance to accept interference from the authorities – taking the case history into consideration.” 35. The High Court’s conclusions in its judgment of 22 April 2010 was that a care order was necessary and that assistance measures for the mother would not be sufficient to allow the son to stay with her. The conditions for issuing a care order under the second paragraph of section 4-12 of the Child Welfare Act were thus met (see paragraph 65 below). In this connection, the High Court also gave weight to the attachment that X had formed to his foster parents, particularly the foster mother. 36. The first applicant did not lodge an appeal against the judgment. 37. On 18 July 2011 the child welfare authorities requested the County Social Welfare Board to deprive the first applicant of her parental responsibility for X, which would then be transferred to the authorities, and to grant X’s foster parents, with whom he had stayed since he was taken into care (see paragraph 8 above), permission to adopt him. The identity of X’s biological father was still unknown to the authorities. In the alternative, the authorities’ proposed that the first applicant’s contact rights be removed. 38. On 29 July 2011 the first applicant applied for termination of the care order or, in the alternative, extended contact rights with X. 39. On 18 October 2011 the first applicant gave birth to Y, the third applicant. She had married the father of Y in the summer of that same year. The new family had moved to a different municipality. When the child welfare authorities in the first applicant’s former municipality became aware that she had given birth to another child, it sent a letter expressing concern to the new municipality, which started an investigation into her parenting abilities. 40. On 28, 29 and 30 November 2011 the County Social Welfare Board, composed of a lawyer, a psychologist and a lay person, held an oral hearing at which the first applicant was present together with her legal representative. Twenty-one witnesses were heard. 41. On 8 December 2011 the Board decided that the first applicant should be deprived of her parental responsibility for X and that X’s foster parents should be allowed to adopt him. The Board found that there was nothing in the case to indicate that the first applicant’s parenting abilities had improved since the High Court’s judgment of 22 April 2010. Therefore she was still considered incapable of giving X adequate care. Moreover, the Board stated: “In her statement before the County Social Welfare Board, the mother maintained her view that the care order was a conspiracy between the child welfare service, [the parent-child institution] and the foster parents for the purpose of ‘helping a woman who is unable to have children’. In the mother’s words, it was a question of ‘an advance order for a child’. The mother had not realised that she had neglected [X], and stated that she spent most of her time and energy on ‘the case’. The reports from the contact sessions between the mother and [X] consistently show that she is still unable to focus on [X] and what is best for him, but is influenced by her very negative view of the foster mother and of the child welfare service. [The first applicant] has married and had another child this autumn. Psychologist [K.M.] has stated before the Board that he observed good interaction between the mother and child and that the mother takes good care of the child. The Board takes note of this information. In the County Social Welfare Board’s opinion, this observation can in any case not be used as a basis for concluding that the mother has competence as a caregiver for [X]. The County Social Welfare Board finds it reasonable to assume that [X] is a particularly vulnerable child. He experienced serious and life-threatening neglect during the first three weeks of his life. Reference is also made to the fact that there have been many contact sessions with the mother, some of which have been very stressful for [X]. All in all, he has been through a lot. He has lived in the foster home for three years and does not know his biological mother. If [X] were to be returned to the care of his mother, this would require, among other things, a great capacity to empathise with and understand [X] and the problems he would experience, not least in the form of mourning and missing his foster parents. The mother and her family appeared to be completely devoid of any such empathy and understanding. Both the mother and grandmother stated that it would not be a problem, ‘he just had to be distracted’, and thus gave the impression of not having sympathy with the boy and therefore also being incapable of providing the psychological care he would need in the event of a return.” 42. In addition, the Board had especially noted the conclusions of expert M.S. They were quoted by the High Court in its judgment of 22 April 2010 (see paragraph 34 above). The Board found that this description of the first applicant was still accurate. In any event, it was decisive that X had established such a connection to his foster family that removing him would result in serious and permanent problems for him. 43. The Board assumed that the alternative to adoption would have been continued foster care on a long-term basis, and noted that the foster parents were X’s main caregivers and the ones he thought of as his parents. The foster parents were moreover considered suitable and wanted to take care of X as their own child. The Board made general reference to the Supreme Court’s decision in Norsk Retstidende (Rt.) 2007 page 561 (see paragraph 69 below) and found that the considerations underlying the following passage from that judgment – reiterated in Aune v. Norway, no. 52502/07, § 37, 28 October 2010 – were also pertinent to the present case: “‘A decision that he should remain a foster child would tell him that the people with whom he has always lived and who are his parents and with whom he established his earliest ties and sense of belonging should remain under the control of the Child Welfare Service — the public authorities — and that they are not viewed by society as his true parents but rather as foster parents under an agreement that can be terminated. ...’” 44. In conclusion, the adoption would be in X’s best interests. The Board took Article 8 of the Convention into consideration when making its decision. 45. The first applicant appealed against the decision, claiming that the Board had made a wrongful evaluation of the evidence when deciding that she was unable to give X adequate care. She considered that it would be in X’s best interest to be returned to her and stressed that her situation had changed drastically. The first applicant was now married and had another child that she was taking care of. She had a good support system in her husband and her extended family, and was also prepared to accept help from the child welfare authorities. Moreover, in her view, removing X from the foster home would only cause him problems in the short term; no long-term problems could be expected. She also claimed that the visits between her and X had worked well. 46. The child welfare authorities opposed the appeal and submitted that the first applicant’s ability to care for X had not changed since the High Court’s judgment of 22 April 2010. The visits between X and the first applicant had not worked well. She had had outbursts during the visits and had left before the time was up. Afterwards X had reacted negatively. The first applicant and her mother had manifested a very negative attitude towards the authorities. Moreover, X had a good attachment to his foster family and had lived with them for over three years. He was a vulnerable child and he needed a caregiver who was sensitive to his needs. They also noted that the first applicant had exposed X and their story on the Internet, together with pictures of them, which could be harmful for X. It was in the best interests of X to be adopted by the foster family. 47. On 22 February 2012 the City Court, comprised of one professional judge, one psychologist and one lay person, in accordance with section 36-4 of the Dispute Act (see paragraph 66 below), upheld the decision after having held an oral hearing which lasted for three days and during which twenty-one witnesses were heard. The first applicant was present together with her legal counsel. 48. The City Court initially noted that the first applicant’s general situation had improved. She had married in August of 2011, her husband had a permanent job and they had a daughter, Y. It also noted that the child welfare authorities in the couple’s current municipality were conducting an ongoing inquiry concerning the mother’s ability to care for Y. A staff member of the authorities in that new municipality had testified at the oral hearing, stating that they had not received any reports of concern other than that from the authorities in the first applicant’s former municipality. As part of their inquiry they had made observations at the first applicant’s home. They had observed many good things but also that the parents might need some help with routines and structure. The City Court found that this indicated that the authorities in the municipality to which the first applicant had moved thought that the parents could give Y adequate care if assisted by the authorities. She was not a child with any special care needs. 49. However, on the basis of the evidence, the situation was different with regard to X, whom several experts had described as a vulnerable child. The City Court referred in particular to a statement from a professional at the Children’s and Young People’s Psychiatric Out-Patient Clinic (Barne- og ungdomspsykiatrisk poliklinikk – BUP) explaining that, as late as December 2011, X was easily stressed and needed a lot of quiet, security and support. If he was to have a sound emotional development in the future, the carer would have to be aware of that and take it into account. When the first applicant gave evidence in court, she had clearly shown that she did not realise what challenges she would face if X were to be moved from the foster home. She could not see his vulnerability, her primary concern being that he should grow up “where he belonged”. The first applicant believed that returning him would be unproblematic and still did not understand why the child welfare authorities had had to intervene when he was placed in the emergency foster home. She had not wished to say anything about how she thought X was doing in the foster home. In the City Court’s view, the first applicant would not be sufficiently able to see or understand X’s special care needs, and if those needs were not met, there would be a considerable risk of abnormal development. 50. Furthermore, the City Court took account of how the foster parents and supervisor had described X’s emotional reactions after contact sessions with his mother in the form of inconsolable crying and his needing a lot of sleep. During the contact sessions, X had repeatedly resisted contact with the first applicant and, as the sessions had progressed, reacted with what had been described as resignation. The City Court considered that a possible reason for that could be that the boy was vulnerable to inexpedient interaction and information that was not adapted to his age and functioning. The first applicant’s emotional outbursts in situations during the contact sessions, for example when X had sought out his foster mother and called her “mummy”, were seen as potentially frightening and not conducive to X’s development. 51. The City Court held that the presentation of evidence had “clearly shown” that the “fundamental limitations” that had existed at the time of the High Court’s judgment still applied. Nothing had emerged during the City Court’s consideration of the case to indicate that the first applicant had developed a more positive attitude to the child welfare authorities or to the foster mother, beyond a statement made by her to the extent that she was willing to cooperate. She had snubbed the foster mother when she had said hello during the contact sessions and had never asked for information about X. The first applicant had left in frustration forty minutes before the last visit had been scheduled to end. Everyone who had been present during the contact sessions had described the atmosphere as unpleasant. The City Court considered that one possible reason why the first applicant’s competence at contact sessions had not improved was that she struggled so much with her own feelings and with missing X, that it made her incapable of considering the child’s perspective and protecting him from her own emotional outbursts. An improvement was contingent upon her understanding X and his needs and on her being willing to work on herself and her own weaknesses. The first applicant had not shown any positive developments in her competence in contact situations throughout the three years she had had rights of access. The fact that her parents, the fourth and fifth applicants, had a remarkably negative attitude to the municipal child welfare authorities did not make it any easier for her. 52. The first applicant had claimed in court that she was a victim of injustice and that she would fight until X was returned to her. To shed light on her own situation, she had chosen to post her story on the Internet in June 2011 with a photograph of herself and X. In that article and several comments posted during the autumn of 2011, she had made serious accusations against the child welfare authorities and the foster parents – accusations which she had admitted in court were untrue. The first applicant did not consider that public exposure and repeated legal proceedings could be harmful for the child in the long term. 53. The City Court noted that psychologist K.M., who had examined and treated the first applicant, had testified that she did not meet the criteria for any psychiatric diagnosis. He had counselled her in connection with the trauma inflicted on her by having her child taken away. The goal of the treatment had been to make the first applicant feel like a good mother. He believed that the previous assessments of the first applicant’s ability to provide care had at that time been incorrect, and argued before the City Court that the best outcome for X would be to be returned to his biological mother. However, the City Court stated that psychologist K.M.’s arguments had been based on research conducted in the 1960s, and found them to be incompatible with recent infant research. It noted that the other experts who had testified in court, including psychologists B.S. and M.S., had advised against returning X to his mother, as this would be very harmful for him. 54. In conclusion thus far, the City Court agreed with the County Social Welfare Board that the first applicant had not changed in such a way as to indicate that it was highly probable that she would be able to provide X with proper care. It endorsed the Board’s grounds, holding that the first applicant’s clear limitations as a carer could not be mitigated by an adapted transitional scheme, assistance measures or support from her network. It did not find reason to discuss other arguments regarding her ability to provide care in more detail, as returning X to her was in any case not an option owing to the serious problems it would cause him to be moved from the foster home. The City Court agreed at this point with the County Social Welfare Board in its finding that X had developed such attachment to his foster parents, his foster brother and the general foster home environment that it would lead to serious problems if he would have to move. X had his primary security and belonging in the foster home and he perceived the foster parents as his psychological parents. On those grounds, the care order could not be revoked. 55. Turning to the issues of deprivation of parental responsibility and consent to adoption, the City Court stated at the outset that when a care order has been issued, it is in principle sufficient for removal of parental rights that this is in the child’s best interests. At the same time, it had been emphasised in several Supreme Court judgments that removal of parental responsibility is a very invasive decision and that therefore strong reasons are required for making such a decision (see, inter alia, paragraph 67 below). The requirements in respect of adoption were even more stringent. However, the questions of deprivation of parental responsibility and consent to adoption had to be seen in conjunction, since the primary reason for depriving someone of parental responsibility would be to facilitate adoption. The court also took into consideration that if the mother retained her parental responsibility, she might engage in conflicts in the future about the rights that such responsibility entailed, such as exposing the child on the Internet. 56. The City Court went on to declare that adoption could only be granted if the four conditions in the third paragraph of section 4-20 of the Child Welfare Act were met (see paragraph 65 below). In the present case, the decisive factor would be whether adoption was in X’s best interests and whether consent for adoption should be given on the basis of an overall assessment. Regarding that assessment, several Supreme Court judgments had stated that strong reasons must exist for consenting to adoption against the will of a biological parent. There must be a high degree of certainty that adoption would be in the child’s best interests. It was also clear that the decision must be based not only on a concrete assessment, but also on general experience from child-psychology research. Reference was made to the Supreme Court’s judgment in Rt. 2007 page 561 (see paragraph 69 below). 57. Applying the general principles to the instant case, the City Court first noted that X was at the time three and a half years old and had lived in his foster home since he was three weeks old. His fundamental attachment in the social and psychological sense was to his foster parents, and it would in any event be a long-term placement. X was moreover a vulnerable child, and adoption would help to strengthen his sense of belonging with his foster parents, whom he regarded as his parents. It was particularly important to a child’s development to experience a secure and sound attachment to its psychological parents. Adoption would give X a sense of belonging and security in the years ahead for longer than the period a foster-home relationship would last. Practical considerations also indicated that persons who had care and control of a child and who in reality functioned as its parents should attend to the functions that followed from parental responsibility. 58. The City Court noted that adoption meant that the legal ties to the biological family were broken. In its opinion, X, despite spending the first three weeks of his life with his mother and having many contact sessions, had not bonded psychologically with her. That had remained the case even though he had been told at a later stage that the first applicant had given birth to him. 59. Furthermore, the court took account of the fact that even if no more contact sessions were organised, the foster parents had taken a positive view of letting X contact his biological parent if he so wished. 60. Based on an overall assessment, the City Court found that it would be in X’s best interests for the first applicant to be deprived of her parental responsibility and for the foster parents to be allowed to adopt him. The court believed that particularly weighty reasons existed for consenting to adoption in the case. 61. The City Court lastly stated that since it had decided that X should be adopted, it was unable to decide on contact rights for the first applicant, since that question would be up to the foster parents to decide on. It mentioned that section 4-20a of the Child Welfare Act provided a legal basis for fixing rights to access subsequent to adoption (see paragraph 65 below, where that provision is reiterated, and paragraph 72 below, on the “open adoption”-system). The City Court was, however, not competent to examine or decide on such rights since its competence was dependent on a party to the case having made a request to that effect. In the instant case, none of the parties had done so. 62. The first applicant appealed against the judgment, claiming that the City Court had evaluated the evidence incorrectly when considering her ability to give X the necessary care. She also argued that the City Court should have obtained an evaluation by an expert witness concerning her and her husband’s ability to provide adequate care. She submitted an evaluation made by the municipality in which she currently lived, dated 21 March 2012. 63. On 22 August 2012, the High Court decided not to grant leave to appeal. It stated that the case did not raise any new legal issues of importance for the uniform application of the law. As concerned the new evidence, the court noted that the evaluation dated 21 March 2012 had been made by, inter alia, an expert who had testified before the City Court and that the document would not change the outcome of the case. Moreover, it observed that the first applicant had not asked for an expert witness to be heard in the City Court and had not given any reasons as to why it was necessary to appoint an expert before the High Court. Thus there were no reasons for leave to appeal to be granted. 64. The first applicant appealed against the decision to the Supreme Court (Høyesterett) which, on 15 October 2012, refused leave to appeal.
| 0 |
test
|
001-178378
|
ENG
|
AUT
|
COMMITTEE
| 2,017 |
CASE OF FUCHSHUBER v. AUSTRIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
|
Nona Tsotsoria;Gabriele Kucsko-Stadlmayer
|
4. The applicant and the relevant details of the application are set out in the appended table. 5. The applicant complained of the excessive length of criminal proceedings.
| 1 |
test
|
001-170650
|
ENG
|
UKR
|
COMMITTEE
| 2,017 |
CASE OF GAVRILYAK AND OTHERS v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Erik Møse;Mārtiņš Mits;Yonko Grozev
|
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.
| 1 |
test
|
001-140936
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,014 |
CHOSTA v. UKRAINE
| 4 |
Inadmissible
|
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens
|
The case originated in an application (no. 35807/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Grygoriy Denysovych Chosta (“the applicant”), on 5 August 2005. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was born in 1943 and lives in Kramatorsk. At the material time the applicant worked at a steel factory owned by a company in which the State held about 25% of the share capital. The company operated under its articles of association and was managed by a director appointed by the general meeting of shareholders, which was the highest authority deemed competent since shareholders represented over 60% of the votes. The company’s supervisory board included one representative of the State Property Fund. On 13 February 2002 the director of the company, noting an increase in instances of staff members presenting for work under the influence of alcohol, and relying on paragraph 23 of the company’s internal regulations, which “forbade attendance at work in a state of intoxication and ... drinking at work”, instructed the departmental factory guards (“the guards”) – who were employees of the company – to “apprehend, in compliance with the legislation of Ukraine, anyone appearing to be in a state of alcoholic (narcotic) intoxication and take them to [the guards’] office for a report subsequently to be drawn up”. Employees who disagreed with the report were to be escorted to a local clinic for an alcohol test. At about 10 p.m. on 3 August 2002, a guard at the factory gate suspected that the applicant, who was on his way out after working two shifts in succession, was drunk and asked him whether he had drunk alcohol. Following the applicant’s reply that he had drunk “a glass of vodka”, guards S. and P. seized the applicant’s badge and would not allow him to leave the premises of the factory. After about half an hour the senior guard, N. arrived, questioned the applicant and drew up a report indicating that the applicant was drunk and “looked untidy”, and that “there was a strong smell of alcohol on his breath”. The applicant, who disagreed with those conclusions and refused to sign the report, was then taken to the office of the chief guard, M., for further questioning. M. asked several factory workers to smell the applicant’s breathe and say whether he was drunk. Eventually, the applicant was escorted to a local clinic where at 11.30 p.m. he was given an alcohol test and was found to be sober. Subsequently, at an unspecified time, the applicant was allowed to leave, his badge having been returned to him. On an unspecified date, upon the applicant’s complaint, the head of the company’s trade union initiated an internal investigation into the incident. The investigation established that the report drawn up by guard M. on 3 August 2002 had been based on the statements of S. and P., “external signs of the applicant’s alcoholic intoxication”, and the applicant’s behavior after he had been stopped by S. and P. It was also noted that the applicant had consented to undergo an alcohol test at the clinic. On 22 August 2002, the chief guard of the factory, referring to the findings of that investigation, issued an instruction indicating a number of shortcomings in the conduct of the guards involved in the incident on 3 August 2002. In particular, it was noted that guard M. had failed to describe the signs of alcoholic intoxication which the applicant had allegedly displayed or to record the statements given by S. and P. The chief guard also noted that the guards had failed to draw up a separate report on the applicant’s refusal to cooperate. On 4 February 2003 the applicant instituted proceedings before the Kramatorsk Court against the company, seeking 12,000 Ukrainian hryvnias (UAH) in compensation for non-pecuniary damage allegedly caused to him by the unlawful actions of the guards on 3 August 2002. On 3 June 2003 the court rejected the applicant’s claim. It found that the guards had acted in line with the company’s internal regulations and therefore their actions had been lawful. Having heard all the eyewitnesses of the incident on 3 August 2002, the court concluded that there was no evidence that the guards’ conduct caused damage to the applicant’s reputation, health, lifestyle or working relationships. The court relied on the report of 3 August 2002 and the internal investigation report, plus the records of the applicant’s alcohol test on that date and statements by S. and P. The court invoked Articles 440-1 and 441 of the Civil Code of 1963. On 26 August 2003 the Donetsk Regional Court of Appeal rejected an appeal by the applicant. The applicant appealed in cassation, stating, in particular, that the Court of Appeal had failed to verify whether his detention had been compatible with the requirements of the Convention. According to the applicant, his detention on 3 August 2002 had not been justified by any of the grounds in Article 5 § 1 of the Convention but no compensation had been available to him, contrary to Article 5 § 5 of the Convention. On 4 April 2005 the Supreme Court refused the applicant leave to appeal in cassation on the ground that there was no evidence suggesting that the decisions of the lower courts were unlawful or inaccurate. Meanwhile, on 6 February 2003 at 11.20 p.m., guards P. and I., suspecting the applicant of being drunk, had stopped him as he was leaving the factory. The guards took the applicant to their office and questioned him. The senior guard L. drew up a report stating that the applicant was drunk and noting that the latter disagreed with that conclusion. According to the applicant, the guards refused to take him to a clinic for an alcohol test and did not allow him to leave until 2.30 a.m. on 7 February 2003. From 11.20 on 6 February to 2.30 a.m on 7 February 2003 the guards allegedly pressured and threatened the applicant. According to the Government, the applicant was kept in the guards’ office for only twenty minutes on 6 February 2003. On 7 February 2003 at about 2.30 a.m. the applicant, who wished to prove that he was sober, went to a local clinic and at 3.50 a.m. on that day took an alcohol test. There were two reports drawn up following the test, which came to opposite conclusions; the disparity between the conclusions was explained by the different techniques that had been used. The company carried out an internal investigation into the incident of 6 February 2003 and found no fault in the guards’ conduct. The investigation report mentioned, inter alia, that the guards had not taken the applicant to a clinic for an alcohol test because of poor weather conditions. On 21 April 2003 the applicant instituted proceedings before the Kramatorsk Court against the company, seeking UAH 35,000 in compensation for the non-pecuniary damage allegedly caused to him by his unlawful detention on 6 February 2003. On 1 October 2003 the court rejected the applicant’s claim, relying on essentially the same grounds as in its judgment of 3 June 2003 (see above). The court also noted that according to the statements of guards P. and I., the applicant had been released within twenty minutes of his apprehension. On 18 March 2004 and 12 October 2006 the Donetsk Regional Court of Appeal and the Supreme Court, respectively, rejected appeals by the applicant and upheld the first-instance court’s judgment. According to the applicant, the judges of the courts dealing with his complaints were biased and corrupt. Article 440-1 of the Civil Code of 1963, in force up to 1 September 2005, provided that non-pecuniary damage caused to a person or an organization was to be compensated by the person who had caused it unless the latter proved not to be responsible for the damage. Article 441 provided that an employer was liable for harm caused by an employee, in the performance of his or her work duties, to a third person. Article 146 of the Criminal Code of 2001 provided that unlawful deprivation of liberty or abduction of an individual were punishable by restriction of liberty or imprisonment for up to five years.
| 0 |
test
|
001-183585
|
ENG
|
UKR
|
COMMITTEE
| 2,018 |
CASE OF TRISHKOVSKAYA AND OTHERS v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement)
|
Yonko Grozev;Gabriele Kucsko-Stadlmayer
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. The applicants in applications nos. 47424/13 and 44303/17 also raised a complaint under Article 2 of Protocol No. 4 to the Convention.
| 1 |
test
|
001-173388
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF KAVALEROV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
|
Branko Lubarda;Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of detention during their transport. The applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-167087
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF TURYEV v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
|
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicant was born in 1967 and until his conviction lived in Ivdel, a town in the Sverdlovsk Region. 6. In April 2000 the applicant was arrested on charges of murder and arson. 7. On 24 July 2000, as the investigation unfolded, the local official newspaper the North Star printed an interview with a deputy town prosecutor about a spike in murder rates. The prosecutor said: “In the first half of 2000 our town reported fourteen murders – a historic high, it seems. Twelve of them have already been solved, thanks to the industry of the police department and the investigators from the prosecutor’s office.... The fingerprint identification of ex-convict [N.B.] (whose body was found in [a river]) has allowed to discover his enemies and to prove that he was beaten by three inhabitants of Ivdel seeking [...] to settle scores for his murder of [another man] for which [he] had served almost nine years. It has been established that [N.B.’s] two murderers – [the applicant’s codefendant] and S. Turyev, both ex-convicts – were complicit in the earlyMarch murder of [L.R.] who had dared to report them to the police for past wrongs. [Her] body was dumped in a wood near the airport and was found only in May. As those crimes were not solved in time, [the applicant’s codefendant] rampaged on and on 20 April killed [another woman] who had witnessed the night-time arson at Vizhayskaya Street that had killed five. By the way, both [L.R.] and [the other woman] (whose body was found in a well next to the sports centre) had been garrotted with a wire. All three persons arrested in this multicount case will undergo forensic psychiatric observation because of the gravity of the crimes committed, which carry up to twenty years or life in prison. But even after these downright senseless murders, the crime wave in the town continued.” 8. When the case came to trial before the Sverdlovsk Regional Court, the applicant moved to disqualify the prosecutor for the prejudice apparent in that interview. On 4 October 2002 the court refused the motion because the prosecutor had only cited facts from the investigative file, had affirmed the applicant’s complicity but not his guilt, and was not personally interested in the outcome of the trial. 9. On 22 January 2003 the court sentenced the applicant to twenty years’ imprisonment for arson and the murders of N.B. and L.R. On 23 October 2003 the Supreme Court upheld the sentence, leaving unanswered the applicant’s complaint about the press interview. 10. In reply to a post-conviction complaint brought by the applicant, in December 2004 the Sverdovsk Regional Prosecutor’s Office found that the interview had breached the agency’s ethics policy as it had preceded the trial without, however, tangibly redressing the applicant.
| 1 |
test
|
001-140238
|
ENG
|
MDA
|
CHAMBER
| 2,014 |
CASE OF BUHANIUC v. THE REPUBLIC OF MOLDOVA
| 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;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
|
5. The applicant was born in 1990 and lives in Chișinău. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 5 April 2009 general elections took place in Moldova. On 6 and 7 April 2009 large crowds gathered in the streets to protest against alleged electoral fraud. Hundreds of persons were arrested on 7 April 2009 and thereafter. 8. The applicant was arrested in the evening of 7 April 2009 and on the next day was sentenced by a court to ten days’ administrative detention. According to the applicant, he was punched in the eye by a plain-clothes police officer during his arrest and then subjected to ill-treatment in the Buiucani police station and subsequently at the General Police Directorate (“the GPD”). He was hit by groups of five to twelve persons, both in uniform and plain clothes, taken through a “death corridor” in which officers lined up and kicked or hit each victim as he or she passed through the corridor while being taken to or from the police station or, especially, the GPD. 9. He was also hit on both ears simultaneously (a form of torture known as “the telephone”), and struck on the head with fists and rubber sticks, all while his hands were handcuffed behind his back. He was also forced to keep his hands up for long periods of time while being hit periodically. He lost consciousness several times as a result of the ill-treatment. 10. The applicant was also allegedly held with eight other persons in a damp humid cell measuring 4 x 4 metres, where he had no access to daylight or any means of determining the time of the day or the date; he also had no access to the outside world, his relatives, a lawyer or a doctor. 11. No water was provided to him during the first twenty-four hours of his detention. Thereafter dirty water was distributed in unhygienic plastic bottles to be used by everyone in the cell. The applicant was subsequently diagnosed with hepatitis of an unknown origin. No food was provided. In the congested damp cell he had no opportunity to sleep for three days. There was no toilet in the cell and access to the toilet outside the cell was allowed at random and only after subjecting the person to humiliation. 12. Psychological ill-treatment was also allegedly used: the applicant was threatened with a lengthy term of imprisonment, with rape and death. He was subjected to interrogation by several persons simultaneously and was forced to sign blank papers. 13. On 11 April 2009 the applicant was seen by a doctor, who found a haematoma on his left eye. 14. On 15 April 2009 the applicant complained to the military prosecutor of ill-treatment by the police. 15. On 29 April 2009 the applicant was examined at the “Memoria” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). On 15 December 2009 it issued an “Extract from the medical file” (Extras din Fişa Medicală) concerning the applicant’s examination. He appears to have undergone detailed medical tests and examinations by various medical specialists. According to the document, the applicant was suffering from, inter alia, the consequences of a head injury, which included intracranial hypertension syndrome and post-traumatic stress disorder, as well as a post-traumatic ear condition. 16. The prosecutor in charge of the case interviewed the police officers in charge of the applicant’s arrest, who declared that they had not used force against him. On 29 May 2009 the prosecutor decided not to initiate a criminal investigation into the applicant’s allegations as he found that there was no evidence that a crime had been committed. On 5 February 2010 the applicant complained to the Prosecutor General’s Office, noting that he had been sent a copy of the prosecutor’s decision only on 22 January 2010. On 18 February 2010 the Prosecutor General’s Office confirmed the decision of 29 May 2009. 17. On 25 March 2010 the applicant challenged in court the decisions of 29 March 2009 and 18 February 2010. On 19 April 2010 the investigating judge at the Buiucani District Court annulled the two decisions and ordered that a supplementary investigation be carried out. The court found that the prosecutors’ decisions had been based only on the statements of the police officers accused of ill-treating the applicant. Moreover, while one of the prosecutors had found that force had been used to apprehend the applicant, which could explain any injuries on his body, the arresting officers had denied the use of any force. 18. On an unknown date prior to 10 May 2010 a formal criminal investigation into the applicant’s allegations was initiated. 19. On 19 May 2010 the applicant was officially recognised as a victim in the investigation of the alleged crime. He described the circumstances of his alleged ill-treatment and participated in a photograph identity parade, but did not recognise any of the persons in the photographs. 20. On 25 May 2010 the prosecutor in charge of the case suspended the investigation on the basis that no suspect had been identified. 21. Following the Court’s communication of the present application to the respondent Government on 12 December 2011, on 8 February 2012 the Prosecutor General’s Office recommended to the Chișinău Military Prosecutor that the proceedings in respect of the applicant’s complaints should be reopened. The prosecutor considered that the decision of 25 May 2010 had been groundless and drew up a list of twelve investigative actions be taken in the new investigation of the complaint. This list included actions such as hearing S., who had been arrested together with the applicant; hearing the persons detained together with the applicant during the events of April 2009; hearing the doctor who had examined him at the Buiucani police station; obtaining various medical evidence concerning the applicant’s state of health prior to and after his detention in April 2009, including the report of the “Memoria” centre; examining the documents in the file concerning the accusations against the applicant; and organising cross-examinations involving both the applicant and the officers who had arrested him on 7 April 2009. 22. On 22 March 2012 the doctor who had examined the applicant at the Buiucani police station was heard as a witness. He declared that he had noted all the injuries present on the applicant’s body. He added that a police officer had been present in the room during the examination, but had not put pressure of any kind on the applicant. 23. On 26 March 2012 two officers were officially declared suspects in the case and were interviewed by a military prosecutor. The parties did not inform the Court of any further developments in this regard. 24. The relevant non-Convention material is summarised in Taraburca v. Moldova (no. 18919/10, §§ 33-37, 6 December 2011).
| 1 |
test
|
001-158820
|
ENG
|
ROU
|
CHAMBER
| 2,015 |
CASE OF ALEXANDRESCU AND OTHERS v. ROMANIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
|
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano
|
5. The facts of the cases, as submitted by the parties, are similar to those presented in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011) and in Bosnigeanu and Others v. Romania (nos. 56861/08 and 33 others, §§ 5-15, 4 November 2014). They belong within the same historical context and relate to the same domestic criminal proceedings as those at issue in the above-mentioned case. 6. Between 21 and 23 December 1989, the applicants took part in the anti-communist demonstrations in Bucharest which led to the fall of the communist regime. 7. In 1990, following the overthrow of the communist regime, the military prosecutor’s office opened a criminal investigation in respect of the December 1989 armed crackdown on the anti-communist demonstration in Bucharest. 8. According to the documents submitted to the Court by the parties, all the applicants were interviewed at the military prosecutor’s office as witnesses in connection with the use of violence against civilian demonstrators. Subsequently, they lodged criminal complaints and joined the criminal proceedings as civil parties, citing the psychological suffering they had experienced following the violent crackdown on the anticommunist demonstration. It appears from the medical certificates issued between April 2008 and February 2009 and submitted by the applicants to the domestic criminal investigation file that they did not present any medical symptoms when they were examined following their involvement in the tragic events. Nevertheless, it could not be ruled out that they suffered psychological trauma at the time of the events in question. 9. The criminal investigation appears to be still pending before the prosecuting authorities. The most important procedural steps were summarised in Association “21 December 1989” and Others, cited above (§§ 12-41). Subsequent developments in the investigation are as follows. 10. On 18 October 2010 the military prosecutor’s office at the High Court of Cassation and Justice decided not to institute criminal proceedings with regard to the acts committed by the military, finding that the applicants’ complaints were partly statute-barred and partly ill-founded. The investigation into crimes committed by civilians, members of the Patriotic Guards, members of militia and prison staff was severed from the case file and jurisdiction was relinquished in favour of the prosecuting authorities at the High Court of Cassation and Justice. 11. On 15 April 2011 the chief prosecutor at the military prosecutor’s office set aside the decision of 18 October 2010 on the grounds that the investigation had not yet been finalised and not all victims and perpetrators had yet been identified. 12. On 18 April 2011 the military prosecutor’s office relinquished jurisdiction in favour of the prosecutor’s office at the High Court of Cassation and Justice on the ground that the investigation concerned both civilians and military. 13. On 9 March 2012 – following the opening to the public in 2010 of the classified information in the criminal investigation file – the case was reregistered with a view to an investigation in the light of the recently available data. 14. This investigation appears to be still pending before the domestic authorities. 15. The main facts of these cases concerning the crackdown on antigovernment demonstrations between 13 to 15 June 1990 are similar to those presented in Mocanu and Others v. Romania [GC] (nos. 10865/09, 45886/07 and 32431/08, §§ 14-49, 55-72, 78-110, and 137-168, ECHR 2014 (extracts)). 16. Between 13 and 15 June 1990 a violent crackdown took place against demonstrators who were occupying University Square and other areas of Bucharest and protesting against the newly installed government. The armed intervention of military forces, followed by the arrival of thousands of miners transported to Bucharest (mainly from the Jiu Valley mining region) to take part in the crackdown on the demonstrators, resulted in more than a thousand civilian casualties, of whom a hundred were killed and several hundred injured or arrested. The applicants in the abovementioned cases participated in the events, during which they allegedly suffered injuries. No relevant medical documents were appended to the case file. 17. Separate criminal investigations into the crimes committed during the violent repression of the demonstrations were opened in 1990 by several prosecutors’ offices in Bucharest under different files. Subsequently, these cases were joined and, in 1997, jurisdiction over them was relinquished in favour of the military prosecutor’s office at the High Court of Cassation and Justice. During the military prosecutor’s investigations, several decisions were adopted in which decisions were reversed, charges were disjoined and jurisdiction relinquished to other domestic authorities. The applicants joined the domestic criminal proceedings as civil parties. 18. A decision not to bring a prosecution was adopted on 17 June 2009. An appeal lodged against that decision was dismissed on 3 September 2009 by the head prosecutor of the relevant section of the prosecutor’s office at the High Court of Cassation and Justice. Those decisions have been upheld in several judgments of the High Court of Cassation and Justice.
| 1 |
test
|
001-148480
|
ENG
|
POL
|
ADMISSIBILITY
| 2,014 |
CICHOŃ v. POLAND
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
|
1. The applicant, Ms Justyna Cichoń, is a Polish national, who was born in 1972 and lives in Plewiska. She was represented before the Court by Mr A. Zielonacki, a lawyer practising in Poznań. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 2007 the applicant’s mother, who was born in 1943, bought an apartment from I.K. Shortly afterwards serious technical flaws in the apartment came to light. The applicant’s mother intended to institute civil proceedings against the seller for compensation. 4. She became depressed as a result of the substantial pecuniary loss she had suffered because of the transaction, which she considered fraudulent. In June 2007 she attempted to commit suicide. She was admitted to hospital on 28 June and discharged on 3 July 2007. The hospital records indicate that she was diagnosed with “a depressive reaction”. 5. On 9 August 2007 I.K. informed the prosecuting authorities that the applicant’s mother had phoned her and uttered threats against her. She had allegedly told I.K. that she would kill her as she had ruined her life by selling her a worthless apartment which she had paid for with her life savings. On the same day I.K.’s father was questioned. He confirmed that the applicant’s mother had uttered threats against I.K. 6. The case file contains a note drawn up by the police and dated 9 September 2007 to the effect that a police officer tried to serve a summons for questioning on the applicant’s mother at G. Street, but to no avail. He was informed by persons living at that address that she had sold that apartment. 7. By a bill of indictment dated 25 September 2007 the Gostyń District Prosecutor charged the applicant’s mother with the offence of uttering threats. The bill was subsequently lodged with the Gostyń District Court. 8. On 1 October 2007 the Gostyń District Court ordered, having regard to the applicant’s mother’s attempt to commit suicide, that a psychiatric expert opinion be prepared on the question of whether she could be held criminally responsible. 9. On 11 October 2007 the Gostyń District Court appointed a legal-aid lawyer to represent the applicant’s mother in the proceedings. On the same day the entire criminal case file was forwarded to the psychiatric clinic that was to carry out the psychiatric examination of the defendant. 10. Subsequently, by letters dated 15 and 20 October one of the experts at the clinic sent summonses to the applicant’s mother at the address at G. Street where she no longer lived (see paragraph 9 above) for examinations to be carried out at the clinic on 24 October and 7 November 2007. The summonses were not served either on her or on any member of her family. The service confirmation slips (potwierdzenie odbioru) were not returned either to the court or to the experts. 11. On 19 November 2007 one of the experts informed the Gostyń District Court by phone that the applicant’s mother had twice failed to attend the psychiatric examination on the dates fixed. On 22 November 2007 the experts informed the court in writing of the applicant’s mother’s failure to attend the examination. They requested the court to arrange for her to be taken to the clinic under police escort for the examination on 30 November 2007. 12. On 22 November 2007 the court, having regard to the applicant’s mother’s failure to comply with the summonses and being unaware of the fact that they had not been served on her, ordered the police to arrest her and escort her to the clinic for the purposes of the examination. 13. At 6.30 a.m. on 30 November 2007 the applicant’s mother was arrested by two police officers at her correct address at O. Street. She was subsequently escorted to the clinic. She was examined by two psychiatrists several hours later and discharged on the same day. 14. On 2 December 2007 the applicant’s mother was found dead in a basement of her house. She had committed suicide by hanging herself. 15. In a psychiatric opinion dated 3 December and served on the court on 6 December 2007, psychologist M.K.S. and psychiatrist T.J. summarised the interview held with the applicant’s mother on 30 November 2007. They noted that she had not had psychotic symptoms and had not reported suicidal thoughts or tendencies. They diagnosed her as suffering from an adjustment disorder (zaburzenia adaptacyjne). The experts further declared that at the material time she had been able to understand the significance of her actions and that, regard being had to her general mental health, she was fit to stand trial. 16. On 6 December 2007 the Gostyń police discontinued an investigation concerning a suspicion that third parties might have assisted the applicant’s mother in committing suicide, having regard to the opinion of the doctor who had declared her dead that there was no indication that any third parties had been involved. The decision concluded that the most likely cause of the suicide was nervous breakdown (załamanie nerwowe). 17. On 18 March 2008 the applicant requested the Poznań Appellate Prosecutor to verify whether the investigation and proceedings in respect of her mother had been conducted properly. She submitted that the attempted suicide in June 2007 and her fragile mental state should have prompted the authorities to conduct the proceedings with particular diligence. Instead, summonses had twice been sent by psychiatrists to the wrong address and they had never been served on her. The court had ordered that she be arrested and taken to the psychiatric clinic. She had been seriously traumatised by the arrest, as indicated by the fact that she had committed suicide on the day after the examination. 18. That complaint was forwarded to the President of the Poznań Regional Court, who replied on 21 April 2008. The relevant part of his letter reads: “It is true that the experts, apparently by mistake, sent the summonses to the wrong address, but the court was not aware of this and that is why it ordered that she should be escorted to the examination [by the police]. There are no grounds on which to conclude that the court’s decision was wrong, but there can be no doubt that it was based on a wrong premise [nie ma zatem podstaw do przyjęcia, że postępowanie sądu było błędne, natomiast niewątpliwie opierało się na błędnych przesłankach].” 19. On 22 September 2008 the applicant requested the Poznań Regional Prosecutor to institute a criminal investigation in order to identify the persons responsible for her mother’s arrest which, in her opinion, had led to her suicide. She submitted that her mother had already tried to commit suicide in June 2007; that at the material time her mental condition had been precarious; and that the psychiatrists had sent the summonses to the wrong address despite the fact that the correct address had been available in the file. The judge had also failed to check whether the summonses had been sent to the correct address and whether they had been duly served on her. As a result, she had been arrested by the police in the early hours of 30 November. Her neighbours had told the applicant that during the arrest her mother had been crying. The applicant submitted that her mother had been an elderly, fragile person on the brink of a nervous breakdown and that the manner in which the case had been handled had driven her to commit suicide. 20. On 13 October 2008 the request was forwarded to the Gostyń District Prosecutor. 21. On 18 November 2008 the Gostyń District Prosecutor refused to institute an investigation, having examined the case under Articles 231 and 151 of the Criminal Code (see paragraphs 31-33 below). It was confirmed that the summonses to attend the psychiatric examination had twice been sent to the wrong address and had never been served on the applicant’s mother. The prosecutor was of the view that the court could not be held responsible for that error. It had not known the defendant’s correct address as the entire case file had already been forwarded to the experts at that time. The applicant’s submission that there was a causal link between the defendant’s arrest on 30 November 2007 and her suicide two days later was too categorical. There were no grounds on which to accept that the prosecuting authorities, the police or the court had failed to perform their duties properly or that the applicant’s mother had been driven to suicide as a result of such failure. 22. The written grounds of that decision did not refer to any evidence other than the file of the criminal case against the applicant’s mother. 23. The applicant appealed. She argued that her mother had suffered from depression caused by the transaction she considered fraudulent and that the authorities had been well aware of this. The court had relied on her earlier attempt to commit suicide when ordering the psychiatric examination. Appropriate regard had not been had to the fact that she was psychologically fragile. The authorities had failed to conduct the criminal case against her properly. No steps had been taken by the court to establish her correct address, although it had been available in the case file, in order to serve the summonses correctly. As a result of that failure, her mother had been arrested on 30 November 2007. The arrest had been tremendously traumatic for her. In the applicant’s opinion, the fact that her mother had committed suicide just after the examination was proof that the opinion prepared by the experts after her death to the effect that she was fit to stand trial was worthless. 24. On 13 March 2009 the Leszno District Court examined the appeal. The applicant did not attend the hearing. In a decision rendered on the same day the District Court dismissed the appeal. The relevant parts of the written grounds of this decision, numbering one-and a half page read as follows: “The appellant’s submission that there was a well-founded suspicion that a criminal offence had been committed could not be shared [by the court] in respect of: - the prosecutor, because ... he had a right to draw up a bill of indictment within fourteen days of the investigation being closed and he did so in the present case; - the judge conducting the proceedings, as he was entitled to appoint psychiatrists to the case with a view to checking whether the defendant could stand trial and to order that the defendant be taken to the psychiatric examination under police escort; he did so as he had been informed in writing that the defendant had twice failed to comply with summonses; - the experts in so far as they failed to foresee that [the applicant’s mother] would make another suicide attempt, this time a successful one, as they gave their opinion in accordance with their best knowledge and conscience; ... It is true that the police escort order given by the court failed to take into consideration that the experts had sent the summonses to the wrong address, but the court could not know that, given that at the time the case file had already been forwarded to the experts. This, however, cannot change the assessment of the events from the point of view of criminal responsibility, in particular as to the presence of a causal link between the [applicant’s mother] being taken to the examination by police escort and her subsequent attempt to commit suicide.” 25. Subsequently the applicant requested the Regional Agent for Disciplinary Matters (Okręgowy Rzecznik Odpowiedzialności Zawodowej) of the Wielkopolska Chamber of Physicians (Izba Lekarska) to institute disciplinary proceedings against the psychiatrists. By a decision of 18 December 2009 the Agent discontinued the investigation, having questioned the psychiatrists. He referred to the fact that the service confirmation slips sent to the applicant’s mother had not been served on the psychiatrists. This suggested that the summonses had been properly served on her. As she had failed to comply with the summonses, they had no choice but to inform the court accordingly. The defendant had subsequently been arrested by the police for the purposes of the examination. The psychiatrists had explained that the defendant’s conduct during the examination was not such as to justify her immediate psychiatric internment. Their opinion had therefore been well-founded and they had no case to answer. 26. The applicant appealed. She reiterated that information about her mother’s accurate address had been in the case-file which the psychiatrists had had at their disposal. They had failed to act diligently by establishing her address correctly. They were aware of her earlier attempt to commit suicide but still they had found her able to stand trial. She reiterated that the arrest and taking her to the clinic under the police escort were traumatising and dishonourable for her mother who felt belittled thereby in the eyes of her friends and neighbours. 27. By a decision of 6 February 2010 the Regional Court for Disciplinary Matters of the Wielkopolska Region (Okręgowy Sąd Lekarski), sitting in camera, upheld the contested decision. It was of the view that the fact that the psychiatrists had sent the summonses to the wrong address amounted to a formal shortcoming, but it did not have an impact on or had not caused the later tragic events. Similarly, in so far as the applicant had complained about her mother’s arrest by the police, this could not be held against the doctors. The arrest had been ordered by the court in the context of the criminal proceedings, not by the doctors. It was further stated that the psychiatric opinion drawn up by the two psychiatrists was correct, and the diagnosis they had made not open to criticism. 28. Article 151 of the Criminal Code reads: “Whoever by persuasion or by rendering assistance induces a human being to take his or her life shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.” 29. Article 231 of that Code provides: “§ 1. A public official who, exceeding his authority or failing to perform his or her duty, acts to the detriment of a public or individual interest, shall be subject to the penalty of deprivation of liberty for up to 3 years. § 2. If the perpetrator commits the act specified in § 1 with the purpose of obtaining financial or personal gain, he or she shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years. § 3. If the perpetrator of the act specified in § 1 above acts unintentionally and causes substantial damage, he or she shall be subject to a fine or restriction of personal liberty or deprivation of liberty for a period not exceeding 2 years.“ 30. The Supreme Court, in a decision of 25 February 2003 (WK 3003), held that only a public official acting intentionally and with intent to act to the detriment of the victim could be charged with the offence stipulated in Article 231 § 1 of the Criminal Code.
| 0 |
test
|
001-148076
|
ENG
|
FIN
|
CHAMBER
| 2,014 |
CASE OF SENCHISHAK v. FINLAND
| 4 |
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia)
|
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
6. The applicant was born in 1942 and lives in Espoo. 7. The applicant had a husband and two daughters in Russia. In 1988 one of the daughters moved to Finland and has lived there permanently since then. She is a Finnish citizen. The other daughter went missing in 2003 and is probably dead. The applicant raised her granddaughter, who was born in 1986, from the age of 3 or 4, when the child’s mother went missing. 8. In November 2006 the applicant suffered a stroke in Russia. Apparently her right side was then paralysed. At the time, she lived with her husband, until he died in 2007. Thereafter the applicant apparently lived with her granddaughter and her family near Vyborg. 9. On 7 December 2008 the applicant arrived in Finland with a tourist visa issued for a period of 30 days, without having lodged a prior application for a residence permit at a Finnish Representation. Since then she has been living with her daughter in Espoo. 10. On 17 December 2008 the applicant applied for a residence permit on the basis of family ties to her daughter. 11. On 31 July 2009 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) refused the applicant a residence permit and ordered her removal to Russia. 12. The applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), presenting new medical evidence about her state of health. 13. On 8 April 2010 the Helsinki Administrative Court quashed the Immigration Service’s decision and referred the case back to it for reexamination as new evidence had been presented in the matter on which it could not take a stand as a first instance. 14. On 29 April 2010 the Immigration Service again refused the applicant a residence permit and ordered her removal to Russia. It found that, according to the domestic law, the applicant was not entitled to a residence permit on the basis of family ties as she was not a family member (a spouse or a minor child) of a person living in Finland. Other relatives than family members were issued a residence permit only in exceptional circumstances, mainly if the purpose was to continue close family life in Finland or if the relative was completely dependent on a Finnish citizen living in Finland. The applicant and her daughter had not had any family life since 1988 when the daughter had moved to Finland. A residence permit could not be granted on the basis of health reasons either. It did not appear that the applicant could not receive proper medical treatment or care in Russia. The applicant’s age, her state of health and the fact that her relative lived in Finland were not sufficient reasons to issue her a residence permit. 15. The applicant appealed to the Helsinki Administrative Court, requesting that the Immigration Service’s decision be quashed. She claimed, inter alia, that she had not received proper treatment in Russia and that such treatment could not be provided. She had no relatives in Russia who could take care of her. This meant that she would have to be put in a nursing home, the standard of which was generally poor in Russia. Her daughter could not move back to Russia either as she would have to leave her job in Finland and take her daughter with her. It was not even certain that they would be issued a residence permit in Russia. The applicant’s mental condition was such that she could not endure removal and separation from her daughter. Separation would lead to her death either through sickness or suicide. 16. On 27 May 2010 the Helsinki Administrative Court ordered a stay on removal for the duration of the proceedings before it. 17. On 16 September 2011 the Helsinki Administrative Court rejected the applicant’s appeal. In its reasons the court noted that the essential question was whether the applicant was completely dependent on her daughter who lives in Finland. The applicant’s state of physical and mental health was attested by proper medical certificates. However, it was not shown that the applicant could not receive proper medical treatment or care in Russia, in her own language. The applicant was thus not completely dependent on her daughter in Finland, nor did she have any close ties to Finland. The applicant had close ties to Russia where she could also receive treatment. The fact that treatment would be more expensive there was not a ground to grant a residence permit. The applicant’s daughter could help her financially and could also visit her in Russia. 18. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that she be granted leave to appeal and that the court order a stay on removal. 19. No stay on removal was ordered by the Supreme Administrative Court. 20. On 14 June 2012 the Supreme Administrative Court refused the applicant leave to appeal.
| 0 |
test
|
001-163356
|
ENG
|
DEU
|
CHAMBER
| 2,016 |
CASE OF GEOTECH KANCEV GMBH v. GERMANY
| 3 |
Remainder inadmissible;No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);No violation of 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;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
|
6. The applicant company specialises in taking soil samples by way of drilling for geological examination, inter alia, for the purpose of assessing suitability for building sites and for the construction of wells. 7. In the building industry in Germany, a number of collective agreements operated, which contained regulations related to the social welfare of employees working in that sector (see relevant domestic law and practice paragraphs 21-28). The employers’ associations in the building industry (Hauptverband der Deutschen Bauindustrie and Zentralverband des Deutschen Baugewerbes) and the trade union (IG Bauen-Agrar-Umwelt) concluded the Collective Agreement on Social Welfare Proceedings in the Building Trade (Tarifvertrag über das Sozialkassenverfahren im Baugewerbe, “VTV”). The VTV contained rules about contributions and entitlements in relation to both the ZVK and the Holiday and Wage Equalisation Fund of the Construction Industry (Urlaubs- und Lohnausgleichskasse der Bauwirtschaft, “ULAK”), which jointly comprised the Social Welfare Fund in the building industry which went by the common name “SOKA-BAU”. 8. As the Federal Ministry for Labour and Social Affairs declared the VTV generally binding (allgemeinverbindlich) pursuant to Section 5 § 1 of the Law on Collective Agreements (Tarifvertragsgesetz), it was binding on all employers in the building industry, even if they did not belong to the employers’ association (Section 5 § 4 of the Law on Collective Agreements, see relevant domestic law and practice paragraph 20). As a consequence, all employers in the building industry were obliged to contribute to the Social Welfare Fund an additional sum amounting to 19.8% of the gross wages paid to their employees. 9. The applicant company was not a member of an employers’ association that was party to the relevant collective agreements. It was thus not directly bound by any collective agreements by virtue of such membership. 10. On 10 August 2004 the Social Welfare Fund sent a letter to the applicant company with key information about the supplementary welfare schemes, including with regard to contributions to be paid and possible benefits it might receive. The applicant company did not react to this letter. 11. On 12 April 2005, following enquiries made in order to establish whether the applicant was obliged to pay contributions, the Social Welfare Fund sent a letter to the applicant company, informing it about its duty to pay contributions and that an account had been opened into which benefits would be paid. 12. On 28 April 2005 the applicant company’s lawyer sent a letter to the Social Welfare Fund, objecting to being registered with the Fund. 13. On 11 October 2007 the Wiesbaden Labour Court ordered the applicant company to pay 63,625.58 euros (EUR) in welfare fund arrears for the period between September 2002 and March 2004 to the ZVK. The applicant company was further ordered to submit copies of the wage slips issued to its employees between January 2006 and June 2007. The Labour Court considered that the applicant company was bound by the VTV, which was binding on all employers in the building industry even if they did not belong to one of the employers’ associations. The activities of the applicant company fell within the scope of the VTV which, in its Article 1 § 2 (v) no. 6, listed drilling as an activity within its scope. 14. The applicant company lodged an appeal submitting, in particular, that the generally binding effect of the VTV violated the negative aspects of its right to freedom of association. It argued that it was obliged to contribute to a fund jointly set up by the employers’ association and the trade union, even though it did not belong to either of these associations. The applicant company further complained that it was prevented from founding its own association, due to a lack of funds. 15. On 27 June 2008 the Hesse Labour Court of Appeal rejected the applicant company’s appeal and did not grant leave for an appeal on points of law. As well as confirming the Labour Court’s reasoning, the Court of Appeal held that the generally binding effect of the VTV did not violate the applicant company’s right to freedom of association. It observed that the generally binding effect did not entail an obligation to adhere either to one of the employers’ associations or to the Social Welfare Fund. Referring to the case-law of the Federal Constitutional Court (decision of 15 July 1980, 1 BvR 24/74, see relevant domestic law and practice paragraph 27), the Labour Court of Appeal conceded that the applicant company, which was not a member of one of the employers’ associations, had the disadvantage of not being able to assert its interests by exercising control over the activities of the Social Welfare Fund via these associations. The right to participate in the decision-making process within these associations was reserved to members of the respective association. In so far as this fact exerted a certain pressure to become a member of one of the employers’ associations, this was, however, not sufficient to amount to a violation of the negative aspect of its right to freedom of association. 16. The Court of Appeal further considered that the obligation to contribute to the Social Welfare Fund did not prevent the applicant company from founding its own association. It observed that the major parts of the contributions due would be reimbursed to the applicant if properly declared. 17. The Court of Appeal finally considered that the obligatory contribution to the Social Welfare Fund took account of the high fluctuation of employees in the building industry and served the public interest of allowing for management of the employee’s claims by the Social Welfare Fund, thus preventing a distortion of competition. 18. On 10 December 2008 the Federal Labour Court rejected the applicant company’s complaint against the refusal to grant leave to appeal. 19. On 5 February 2009 the Federal Constitutional Court refused to accept the applicant company’s constitutional complaint for adjudication without providing reasons (1 BvR 243/09).
| 0 |
test
|
001-161971
|
ENG
|
SWE
|
ADMISSIBILITY
| 2,016 |
ISAKSSON AND OTHERS v. SWEDEN
| 4 |
Inadmissible
|
Alena Poláčková;Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
|
1. A list of the applicants is set out in the appendix. 2. The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In February 2008 the applicants, who are all Swedish citizens, were indicted on charges of having committed, inter alia, aggravated drug offences and aggravated violation of the Act on Trade in Medicinal Products (lagen (1996:1152) om handel med läkemedel m.m., hereafter “the 1996 Act”). According to the prosecutor, during the period from 1 January 2003 to 30 January 2007, in Stockholm and the county of Skåne, the applicants and three other defendants had, together and in consultation, created a business on three different websites on the internet through which they had sold medicinal products illegally for a total amount of at least 28.8 million Swedish kronor (SEK), approximately 3 million euros (EUR) of which products for an amount of at least SEK 9.6 million, approximately EUR 1 million, constituted narcotic drugs. 5. The first and second applicants were accused of having been responsible for the business. The first applicant had operated from Sweden while the second applicant had operated mainly from Thailand. They had allegedly controlled the other defendants’ actions, received orders from customers all over the world and forwarded these to the persons responsible for the distribution of the medicinal products, including the narcotic drugs. According to the prosecutor, they had also been involved in company acquisitions to facilitate the web trade of medicinal products and credit card payments. The first and second applicants had also participated in the creation of the websites where the medicinal products, including the narcotic drugs, had been sold and opened bank accounts for payments received for the products. The third applicant, who had operated from Sweden, was accused of having created, administered and dealt with customer contacts for two of the websites through which the medicinal products and narcotic drugs had been sold. In relation to the charges for aggravated drug offences, he was also accused of having promoted narcotic drug trafficking by illegally holding and forwarding payments for narcotic drugs. The fourth applicant was accused of having created one of the internet sites used for the trading of the medicinal products and the narcotic drugs and of having administered and dealt with customer contacts on all three internet sites. 6. Legal representatives were appointed to the applicants, who denied the charges. The applicants and their co-defendants argued, among other things, that Swedish courts did not have jurisdiction in the case as no medicinal products had ever been physically present in Sweden and nothing had been sold to persons in Sweden. The medicinal products had been acquired outside of Sweden and sold to people in various countries but never in Sweden. In their view, their business had been lawful and they had not committed any criminal offence under Swedish law. 7. On 4 April 2008, following a main hearing which lasted 14 days, the Attunda District Court (tingsrätten) convicted the applicants of aggravated drug offences and sentenced them to between two and seven years’ imprisonment. In so far as concerned its jurisdiction, the District Court first noted that the Swedish Narcotics Penal Act (Narkotikastrafflagen (1968:64)) was applicable also to crimes committed outside of Sweden for which reason the alleged drug offences were covered by that Act. It then noted that several of the alleged activities had taken place in Sweden, such as offering the medicinal products, including the narcotic drugs, for sale from Sweden and establishing the contacts between sellers and buyers from Sweden. These activities were, in the court’s view, sufficient to find that the alleged crimes had been completed in Sweden. Therefore, it had jurisdiction to try this charge. The court proceeded to find that the applicants had been involved in the activities as specified by the prosecutor and that they had known that it was illegal and in breach of Swedish law. 8. However, the District Court acquitted the applicants of the second charge as it found that the 1996 Act was not applicable in the present case as no medicinal products had passed through Sweden and the business had not been aimed at consumers in Sweden. According to the court, the State’s monopoly to trade with medicinal products in Sweden had therefore not been breached. 9. The applicants as well as the prosecutor appealed against the judgment to the Svea Court of Appeal (hovrätten). The prosecutor argued, inter alia, that the applicants should also be convicted of aggravated violation of the 1996 Act. The applicants submitted inter alia that the appellate court should dismiss the charges against them or, alternatively, that the charges for aggravated drugs offences should be rejected. They maintained that Swedish courts lacked jurisdiction and that they had not committed any criminal offence under Swedish law. 10. On 2 July 2008, following a main hearing, the Court of Appeal upheld the lower court’s conviction of aggravated drug offences for the first and second applicants. It aquitted the third applicant of that charge as it did not find that he had been aware that medicinal products classified as narcotic drugs had been sold on the internet sites. Lastly, it altered the fourth applicant’s conviction to complicity to aggravated drug offences. However, the appellate court also convicted the first and second applicants of aggravated violation of the 1996 Act and the third and fourth applicants of complicity to aggravated violation of the 1996 Act. The first and second applicants were sentenced to eight years’ imprisonment, the third applicant was given a probationary sentence and a fine of SEK 10,800 and the fourth applicant was sentenced to two years and six months’ imprisonment. 11. The appellate court found that since the first applicant, who had had the leading role in the business, had operated from Sweden and the other defendants had taken part in the same business, all their actions should be deemed as having been committed in Sweden. Consequently, the court had jurisdiction to consider the acts and Swedish law was applicable. As regards the charge of aggravated violation of the 1996 Act, the appellate court noted that the business had been large scale, comprising sales of at least SEK 19,200,000. Since the 1996 Act prohibited sales of medicinal products by others that the Swedish State, or a legal entity in which the State had decisive influence, the court found that the applicants had violated the Act as specified by the prosecutor in the indictment. The Court of Appeal further noted that it did not consider that convicting the defendants would be in breach of either the principle of legality when applying the 1996 Act in its wording before it was amended on 1 May 2006, or any EC laws or regulations. 12. The applicants and two of their co-defendants appealed against the judgment to the Supreme Court (Högsta domstolen), maintaining their claims. 13. The Supreme Court granted leave to appeal concerning the question whether what the Court of Appeal had found proven in relation to each of the defendants under the charges of aggravated violation of the 1996 Act meant that the prerequisites to convict them under that Act were fulfilled. The question of leave to appeal for the remainder of the case was adjourned. 14. On 5 December 2008, the Supreme Court gave judgment, answering the question in the affirmative, namely, that the prerequisites to convict the applicants under the 1996 Act were fulfilled in the present case. In view of its finding, it refused leave to appeal for the remainder of the case. The Supreme Court first noted that the prosecuted activities of the defendants, that is the running of the retail business during the specified time, were to be seen collectively and hence be considered as one crime, even though they comprised several acts carried out at various times where each act was sufficient to be considered a crime of itself. The main question was then whether the activities could be considered to have been performed in Sweden. Agreeing with the Court of Appeal, the Supreme Court found that this was the case since some of the acts had been carried out in Sweden and Sweden therefore had jurisdiction to try the charge in its entirety in accordance with the principle of ubiquity and Chapter 2, Articles 1 and 4 of the Penal Code (Brottsbalken (1962:700)). As regards the acts of complicity, such acts should be considered to be committed not only where they were performed, but also where the main act had been committed. The Supreme Court hence concluded that the Swedish courts had jurisdiction to try the charges against the applicants. 15. The Supreme Court then turned to consider whether the applicants and their co-defendants had violated Swedish law, namely the 1996 Act. Here, the court noted that the 1996 Act was primarily directed at regulating the trade of medicinal products in Sweden and that it had to establish whether it was applicable when neither the products nor the buyers were physically present in Sweden, that is when the trade was based in Sweden but directed against foreign markets. In deciding this, the court had regard to the rapid development of the technical means of trading over national borders and the interest to protect the health and safety of consumers, also outside of Sweden. It further took into account the Act on Electronic Trade and Other Information Society Services (lagen (2002:562) om elektronisk handel och andra informationssamhällets tjänster, hereafter “the Electronic Trade Act”) which was based upon the EU directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“the Directive on Electronic Commerce”). The directive established the subjective territoriality principle in that Member States should ensure that services emanating from within their territories complied with national provisions applicable in that State. The Supreme Court noted that the subjective territoriality principle was an established principle applicable to various areas. It further concluded that retail trading of medicinal products was not, as such, covered by the scope of the Electronic Trade Act. Even though marketing and ordering of medicinal products via internet did, in fact, fall under the Act, actual deliveries of medicinal products were not covered by the scope of the Act. Having regard to the above as well as to the interest to protect the health and safety of consumers, avoid that Sweden be considered as a suitable base for irresponsible large-scale medicinal trade and that there did not appear to exist any formal or other circumstances directly contradicting that the subjective territoriality principle was applicable, the Supreme Court concluded that the 1996 Act was applicable and that the defendants had breached it as found by the Court of Appeal. 16. The third applicant requested the Supreme Court to re-open the case on 19 May 2009. He claimed inter alia that section 4 of the 1996 Act in its wording before it was amended on 1 May 2006, referred to a repealed ordinance (the Medicinal Products Ordinance, Läkemedelsförordningen (1962:702)) and that therefore, he could not have foreseen that the acts he was convicted of were illegal. The request was rejected by the Supreme Court on 20 October 2009 since it found that the applicant had not shown any such new circumstance that would justify a re-opening of the case. 17. The provisions applied in the present case were laid down in the 1996 Act. It may be noted that the 1996 Act was replaced, on 1 July 2009, by a new Act on Trade in Medicinal Products (lagen (2009:36) om handel med läkemedel – hereafter referred to as “the 2009 Act”). 18. Section 4 of the 1996 Act provided, inter alia, that retail trade of medicinal products should be conducted by the State or by a legal entity, appointed by the Government, in which the State had a decisive influence. Between 1970 and 1 July 2009 the state owned company Apoteket AB had exclusive rights to sell medicinal products in Sweden. 19. In its wording until 1 May 2006, section 4 of the 1996 Act referred to retail trade in “items that are covered by the now repealed Medicinal Products Ordinance (1962:701)” and one other Act. However, through a legislative amendment this was changed and, as from 1 May 2006, section 4 instead referred to the Medicinal Products Act (Läkemedelslagen (1992:859)) and Regulation (EC) No. 726/2004 of the European Parliament and of the Council of 31 March 2004. 20. According to section 11 of the 1996 Act, a person who intentionally or negligently violated section 4 should be sentenced to a fine or imprisonment not exceeding one year, unless the act was punishable under the Penal Code. It further provided that minor offences should not be punishable and that an intentional violation that had been conducted as a professional activity, concerned a considerable quantity or value, or otherwise was of a particularly dangerous nature, should be subject to imprisonment not exceeding two years. 21. With the entry into force of the 2009 Act, on 1 July 2009, the pharmacy market was deregulated to allow actors other than Apoteket AB the right to sell medicinal products to the general public. However, an authorisation and special permit from the Medical Products Agency is required to sell medicinal products to the general public. 22. Section 1 of the Narcotics Penal Act provides inter alia that any person who unlawfully either transfers narcotics, acquires narcotics for the purpose of transfer, or procures, processes, packages, transports, keeps or in some other similar way handles narcotics that are not for personal use, or offers narcotics for sale, keeps or conveys payment for narcotics, mediates contacts between seller and buyer or takes any other such measure, if the procedure is designed to promote narcotics traffic, shall, if he or she has acted with intent, be sentenced for drug offences to imprisonment for not more than three years. 23. According to section 3 of the Act, in case of an aggravated offence, the sentence shall be imprisonment of at least two years and at the most ten years. 24. The Supreme Court has applied the Narcotics Penal Act to criminal acts committed abroad without this having constituted an issue per se (NJA 1971 p. 321 and NJA 1983 p. 425). This approach has also been confirmed in legal doctrine (see for instance, Jareborg, Allmän kriminalrätt [General criminal law], p. 242). 25. The regulations regarding the jurisdiction of Swedish courts in criminal cases and the applicability of Swedish penal laws are laid down in Chapter 2 of the Penal Code. Chapter 2, Article 1 of the Code provides that crimes committed in Sweden shall be adjudicated in accordance with Swedish law and by a Swedish court. The same applies when it is uncertain where the crime was committed but grounds exist for assuming that it was committed in Sweden. 26. According to Chapter 2, Article 4 of the Penal Code a crime is deemed to have been committed where the criminal act was perpetrated and also where the crime was completed or, in the case of an attempt, where the intended crime would have been completed. According to the preparatory works to the Penal Code (see NJA II 1948 p. 162) and Swedish case-law (the Supreme Court case NJA 1993 p. 292, as well as the Court of Appeal case RH 2000:84), as soon as a part of a crime has taken place within the realm, the criminal act in its entirety is to be considered to have been perpetrated in Sweden (the principle of ubiquity). 27. In the case of complicity to a crime, it is considered that the location of the criminal act is determined by both the act of complicity and the main act. An accomplice acting from abroad will be deemed to have committed a crime within the country, if he is aiding a main perpetrator to carry out or complete a crime in Sweden (see, for example, Holmqvist et al., Brottsbalken, En kommentar [Commentary to the Penal Code], p. 2:41). 28. Application of penal provisions by analogy is prohibited according to Chapter 1, Article 1 of the Penal Code. Penal provisions should be prescribed by law. In a judgment of 12 July 1994 (NJA 1994 p. 480) the Supreme Court stated that there were no impediments to interpret penal provisions in accordance with the recognised principles for interpretation of the law. However, such an interpretation had to be made cautiously. 29. The penal law principle of legality also embodies a general requirement that a penal provision should be sufficiently clear and precise. It should be possible to foresee the application of a penal provision to a reasonable extent and it should be compatible with the grounds and purpose of the penal provision.
| 0 |
test
|
001-146372
|
ENG
|
BEL
|
CHAMBER
| 2,014 |
CASE OF TRABELSI v. BELGIUM
| 1 |
Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (the United States of America);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
|
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens
|
5. The applicant was born in 1970 and is currently being held in Rappahannock Prison in Stafford, Virginia (United States). 6. On 14 September 2001 an arrest warrant was issued against the applicant by an investigating judge of the Brussels Regional Court. A search of his home had led to the discovery of false passports, automatic weapons and ammunition, as well as chemical formulae that could be used for making explosives and a detailed plan of the United States Embassy in Paris. 7. Following a simultaneous search of a Brussels café, where the applicant had been a regular customer, drawing on information provided by another suspect, who had also been arrested, the police discovered 59 litres of acetone and 96 kilograms of sulphur powder. Under the arrest warrant which was subsequently issued, the applicant was accused of acts of criminal conspiracy, destruction by explosion, possession of combat weapons and belonging to a private militia. 8. The applicant admitted the offences as charged and was sentenced to ten years’ imprisonment by the Brussels Regional Court on 30 September 2003 for attempting to blow up the Kleine-Brogel Belgian army base, forgery, and instigating a criminal conspiracy to attack persons and property. The court’s judgment included the following finding: “[the defendant] attempted to commit one of the most serious crimes since Belgian independence; in spite of the lapse of time since his arrest, he has never shown any remorse, the danger which he poses has remained intact and his case presents no mitigating circumstances.” 9. In a judgment of 9 June 2004 the Brussels Court of Appeal upheld the applicant’s ten-year prison sentence for a range of offences, including: “ - attempting to blow up the Kleine-Brogel Belgian army base, with the added circumstance that the perpetrator must have presumed that there were one or more persons present at the time of the explosion ..., - holding a position of command in a conspiracy formed to perpetrate serious crimes liable to life imprisonment and, in the present case, to carry out a terrorist attack ..., - receiving from a foreign organisation funds intended for conducting, in Belgium, an activity liable to jeopardise national security ..., - being in unlawful possession of a combat weapon ..., - setting up, and assisting or participating in, a private militia or other organisation of private individuals for the purpose of using force ...” 10. On 26 January 2005 the applicant was sentenced in absentia by a Tunisian military court to ten years’ imprisonment for belonging to a terrorist organisation abroad in peacetime. On 29 June 2009 the Permanent Military Court in Tunis issued a warrant for the applicant to be brought before it, for which an application for enforcement was submitted to the Belgian authorities by diplomatic note of 10 September 2009. 11. The principal prison sentence imposed on the applicant in Belgium was completed on 13 September 2011. Two subsequent subsidiary prison sentences of six and three months respectively were imposed in 2007 and enforced immediately. The applicant completed these sentences on 23 June 2012. 12. On 25 August 2005, meanwhile, the applicant had submitted an asylum application in Belgium, which the Commissioner General for Refugees and Stateless Persons dismissed in a decision of 10 April 2009. This decision refused the applicant refugee status and subsidiary protection on the grounds that he had committed offences contrary to the aims and principles of the United Nations within the meaning of Article 1 f) c of the Geneva Convention. That decision was upheld by the Aliens Appeals Board in a judgment of 18 May 2009. B. Extradition proceedings 13. By a diplomatic note of 8 April 2008 the US authorities transmitted to the Belgian authorities a request for extradition of the applicant under the Extradition Agreement concluded between the Kingdom of Belgium and the United States of America on 27 April 1987. The reasons for the request were the indictment issued by the District Court of the District of Columbia (Washington D.C.) against the applicant on 16 November 2007, comprising the following charges: “A. Conspiracy to kill United States nationals outside of the United States, in violation of the following provisions: 18 U.S.C. § 2332 (b) (2) and 1111 (a) B. Conspiracy and attempt to use of weapons of mass destruction, in violation of the following provisions: 18 U.S.C. § 2332a and 2 C. Conspiracy to provide material support and resources to a foreign terrorist organisation, in violation of the following provisions: 18 U.S.C. § 2339B D. Providing material support and resources to a foreign terrorist organisation, in violation of the following provisions: 18 U.S.C. § 2339B and 2.” 14. The extradition request continued as follows: “A warrant for the arrest of Mr Nizar Trabelsi was issued on 16 November 2007 by order of ... judge .... The underlying facts of the charges indicate that in mid-2000 or earlier, while in Germany, and elsewhere in Europe, and in Afghanistan, Nizar TRABELSI knowingly entered into an agreement with al Qaeda associates, including Osama bin Laden, to provide material support and resources, to unlawfully kill United States nationals in targeted facilities in Western Europe, and to use a large-scale explosive device (a weapon of mass destruction) to destroy property in Western Europe used by the United States and/or a department or agency of the United States.” 15. According to the documents in support of the extradition request, notably the applicable extracts from criminal law (Title 18 of the United States Code, U.S.C.) transmitted by the US authorities, these offences carried the following penalties: “A. 18 U.S.C. § 2332 (b) (2) and 1111 (a): a maximum term of life imprisonment, or a combined fine and prison sentence. B. 18 U.S.C. § 2332a and 2: a maximum term of life imprisonment. C. 18 U.S.C. § 2339B: a fine or a maximum term of 15 years imprisonment, or a combination of both. D. 18 U.S.C. § 2339B and 2: a fine or a maximum term of 15 years imprisonment, or a combination of both.” 16. On 4 June 2008 the Federal Attorney transmitted to the chambre du conseil of the Nivelles Regional Court a request for enforcement of the arrest warrant issued on 16 November 2007 against the applicant. In his request the Federal Attorney pointed out that the maximum sentences for the offences underlying the request for extradition were fifteen and ten years respectively. 17. By a diplomatic note of 12 November 2008 the US authorities made the following assurances concerning the applicant to the Belgian authorities: “The Government of the United States assures the Government of Belgium that, pursuant to his extradition, Nizar Trabelsi will not be prosecuted before a military commission, as enabled by the Military Commissions Act of 2006. The Government of the United States further assures the Government of Belgium that upon extradition, Trabelsi will not be detained or incarcerated in any facility other than a civilian facility in the United States.” 18. By an order of 19 November 2008, the chambre du conseil of the Nivelles Regional Court acceded to the Federal Attorney’s request and declared the arrest warrant issued by the US District Court enforceable. However, the order added the following stipulation: “It emerges from the examination of the documents enclosed with the arrest warrant issued for the purposes of extradition ... that the ‘overt acts’ listed by the US authorities in support of the first charge include several which correspond very precisely to the acts committed in Belgian territory which justify the [applicant’s] conviction in Belgium. ... Therefore, by virtue of the ne bis in idem principle, the arrest warrant issued for the purposes of extradition on 16 November 2007 by the competent judicial authority of the United States of America cannot be declared enforceable in respect of ‘overt acts’ nos. 23, 24, 25, 26 set out in paragraph 10 of the first charge, which are deemed repeated in support of the other charges.” 19. Having examined an appeal lodged by the applicant, the Indictments Division of the Brussels Court of Appeal delivered a judgment on 19 February 2009 upholding the aforementioned order and declared the warrant enforceable. Having noted that the extradition concerned acts (committed outside Belgium) other than those for which the applicant had been prosecuted and convicted in Belgium, the Court of Appeal argued that: “There are no serious grounds for believing that the request for extradition was submitted for the purposes of prosecuting or punishing Trabelsi Nizar for considerations of race, religion, nationality or political opinion or that this individual’s situation is liable to be worsened for any of these reasons. ... Nor is there any serious reason to believe that if Trabelsi Nizar were to be extradited he would be subjected to a flagrant denial of justice, acts of torture or inhuman or degrading treatment; there is no reason to suppose that the United States of America will not meticulously comply with all the provisions, including Articles 7.2 and 7.3, of the Extradition Agreement concluded with Belgium, and every reason to believe that Trabelsi Nizar will be detained in a civilian facility and tried by the ordinary courts, in accordance with conventional procedure. ...” 20. On 24 April 2009 the applicant lodged an appeal on points of law against the judgment of the Court of Appeal. He relied on the risk of treatment incompatible with Article 3 of the Convention and the risk of a flagrant denial of justice. He contended that the Court of Appeal had not assessed the consequences of his extradition to the United States in the light of the general situation in that country or his own specific circumstances, and argued that the Court of Appeal should have adopted the same line of reasoning as the Court in the case of Saadi v. Italy [GC] (no. 37201/06, ECHR 2008). He also complained that the Court of Appeal had not addressed the potential problem under Article 3 of sentencing a person to an irreducible life sentence. Lastly, he complained of a violation of the ne bis in idem principle. 21. By a judgment of 24 June 2009 the Court of Cassation dismissed the applicant’s appeal on points of law. It ruled that the Court of Appeal had provided adequate reasons and legal justification for its decision, considering “ - that the requesting State is currently conducting a thorough review of its anti-terrorist policy, stepping up its action against torture and inhuman and degrading treatment, and is on the verge of suspending the special courts and abolishing the unlimited detention without trial of persons captured in the context of international conflict; - that under the terms of the formal guarantees provided in support of the extradition request, the appellant will be tried by an ordinary civilian court in accordance with the normal procedure in force in the requesting State, enjoying all the rights and remedies available under the national judicial system; - that the appellant is not liable to a life sentence for the offences for which his extradition has been requested and that the penalties which they carry can be commuted into other penalties with possibilities for release on parole; - that because the evidence relied upon by the appellant lacks any specific aspect affecting his own personal situation, which would have made the risks he alleges more credible, it does not substantiate any serious concern that he could be exposed to a flagrant denial of justice or acts of torture or inhuman and degrading treatment. ...” 22. In a letter of 11 November 2009 sent to the Belgian authorities at the behest of the Federal Attorney responsible for the extradition request, the US Department of Justice supplied the following additional information: “The statutory maximum sentence for a conviction of each of the first two of these offenses is life imprisonment and the statutory maximum sentence for the latter two offenses is 15 years. In addition, the United States Sentencing Guidelines, which are the voluntary guidelines that judges may choose to follow in sentencing defendants, call for a life sentence for each of the first two of these offenses. A life sentence is not mandatory and the court has the discretion to issue a sentence less than life. In issuing a sentence, the court may consider the gravity of the offense and whether any lives were lost or property was damaged. In this instance, Trabelsi did not succeed in carrying out his plans to kill United States nationals and to use weapons of mass destruction. Thus, the court in issuing a sentence, in its discretion, may consider that Trabelsi was not successful in carrying out his plans. The court also may consider any mitigating factors, such as whether the defendant acknowledges responsibility for his actions. If the court, in its discretion, sentences Trabelsi to a punishment of less than life, i.e. a term of years, Trabelsi’s sentence could be reduced by up to 15% for good behaviour while incarcerated. This type of sentence reduction is only possible, however, if the original sentence is to a term of years, however long, rather than a life sentence. Therefore, if Trabelsi were sentenced to a term of 20, 30, or even 50 years, then he could be eligible for a sentence reduction of up to 15% of his original sentence based on his good behaviour while incarcerated. If, however, Trabelsi is sentenced to life, he would not be eligible for any reduction in his sentence. Finally, Trabelsi can apply for a Presidential pardon or sentence commutation. (A pardon would eliminate the conviction; a commutation would be an adjustment to the sentence.) However, this is only a theoretical possibility in Trabelsi’s case. We are not aware of any terrorism defendant ever having successfully applied for a Presidential pardon or sentence commutation.” 23. Once the US indictment was declared operative, the proceedings relating to the response to the extradition request were commenced. 24. On 4 February 2010 the Federal Attorney forwarded his written opinion to the Brussels Court of Appeal inviting it, in the light of the Court’s case-law, particularly Kafkaris v. Cyprus [GC] (no. 21906/04, ECHR 2008), to issue a positive opinion on the applicant’s extradition. He pointed out that in the case of the first two charges, the applicant was liable to a life sentence, while in the case of the other two charges he was liable to a fifteen-year prison sentence. 25. In a letter of 29 March 2010 to the Federal Department of Justice the applicant took note of the fact that at the hearing on 24 March 2010 the Federal Attorney had acknowledged a mistake in his observations in the enforcement request proceedings concerning the sentence to which the applicant might be liable following his extradition to the United States (see paragraph 16 above). 26. On 10 June 2010 the Indictments Division of the Court of Appeal issued a favourable opinion on the applicant’s extradition, specifying a number of conditions: “ - extradition may only be granted: i. on condition that the death penalty is not imposed on N. Trabelsi or, if the United States cannot guarantee this condition, on condition that the death penalty is not enforced; ii. on condition that any life sentence is accompanied by the possibility of commutation of sentence, even if the conviction is based on terrorist acts; - in the event of a request for N. Trabelsi’s re-extradition to a third country, such as Tunisia, the United States must request the agreement of Belgium should Tunisia send the US Government any future request for extradition after N. Trabelsi has been handed over to them. If the US fails to accept these conditions the extradition must be refused.” 27. By a diplomatic note of 10 August 2010 the US authorities confirmed that the applicant was not liable to the death penalty and assured the Belgian authorities that he would not be extradited to any third country without the agreement of the Belgian Government. The US authorities reiterated that the maximum life prison sentence was not mandatory and that even if all the constituent elements of the criminal offences in question were secured and proved, the court had the discretion to impose a lighter sentence. The note specified that US legislation provided for several means of reducing life sentences: “Regarding the question of commutation of a life sentence, the United States wishes to make it clear, in the first instance, that if Trabelsi were convicted, a life sentence is not mandatory; the court has the discretion to impose a sentence less than life. Also, a defendant has a statutory right to appeal the conviction and sentence, including a life sentence, both directly, and collaterally through a habeas corpus petition. In addition, there are certain statutory bases for reduction of an already-imposed sentence, including where the defendant has provided substantial assistance in the investigation or prosecution of a third party (Federal Rule of Criminal Procedure 35(b) and Title 18 United States Code, Section 3582(c)(1)(B)), or for compelling humanitarian reasons such as the terminal illness of the prisoner (Title 18, United States Code, Section 3582(c)(lXA)(i)). In addition to these measures, the defendant may request that his sentence be reduced as an exercise of executive clemency by the President of the United States. The President’s power under Article H, Section 2, of the U.S. Constitution, “to grant reprieves and pardons” includes the authority to commute (reduce) a sentence of imprisonment, including a life sentence. There are established regulations and procedures governing the application process for executive clemency, and the Office of the Pardon Attorney has been established in the Department of Justice to review all applications for executive clemency and prepare recommendations for the President on those applications. The U.S. Constitution gives the President absolute discretion to grant executive clemency to a defendant. We note that while such discretion has been exercised sparingly, such relief has, on occasion, been granted for serious offenses implicating national security. For example, in 1999, President Clinton commuted the sentences of 13 members of the FALN, a violent Puerto Rican nationalist organization responsible for numerous bombings in the 1970s and early 1980s, who had been convicted of conspiracy to commit armed robbery, bomb making, sedition and other offenses.” 28. On 23 November 2011 the Minister for Justice adopted a ministerial decree granting the applicant’s extradition to the US Government. Having noted that the applicant would in no case be liable to the death penalty, the decree examined each of the other guarantees provided. 29. On the matter of possible life imprisonment, the ministerial decree read as follows: “Under US Federal criminal law the maximum penalty laid down in respect of the charges – the offences under A and B – precludes early release and release on parole. Life sentences as provided for in these two provisions of the US Criminal Code are therefore, from the legal and factual angles, in principle served for the whole of the person’s life. ... In diplomatic note no. 21 of 10 August 2010 from the United States Embassy, the US authorities provided a guarantee that (even) if an irreducible life sentence were handed down it would be possible to obtain a pardon from the US President. This right is set out in Article 2, II of the US Constitution. Furthermore, Presidential pardons have in fact been granted on several occasions in the past, including the recent past, to persons sentenced by the US courts, particularly at the Federal level. ... Even if we view it in its historical context, the FALN case shows that in cases likely to fall under the current legislation on terrorism in force since 11 September 2001, which cases must objectively be seen as much more serious than those of which the person sought is suspected and which are therefore liable to lead to severer penalties, Presidential pardons can indeed be granted. Even though some individuals have since 2001 been given irreducible life sentences ... for terrorism or acts linked to terrorism, such cases cannot be compared to the Trabelsi case in terms of their content. All those who have been sentenced to life imprisonment in the US without early release or release on parole were charged, prosecuted and finally convicted for active involvement in terrorist attacks which had caused deaths and/or injuries and considerable material damage, for example the attacks on the US Embassies in Nairobi, Kenya, and Dar-es-Salaam (Tanzania) on 7 August 1998. ... Those offences were manifestly incomparable in extent and nature with those attributed to the person whose extradition has been requested. In the aforementioned cases persons, sometimes enormous numbers of people, in addition to US nationals, suffered substantial physical and material damage. The person sought in the present case, however, is being prosecuted for having planned and prepared a terrorist attack which was never carried out. He did not succeed, in cooperation with others, in causing human injuries or even material damage. It is therefore manifestly plausible that the offences as charged are not such that the maximum applicable sentence laid down in the US Criminal Code, that is to say an irreducible life sentence, could be called for or imposed. A recent survey by the Human Rights First NGO shows that of the 214 persons prosecuted since 11 September 2001 for terrorist offences linked to al-Qaeda or other Islamist groups or for offences connected with such terrorist offences, 195 have been convicted. Each case involved prosecutions or convictions instigated by Federal attorneys and courts. 151 of the convicted persons were sentenced to imprisonment, while twenty were released on licence or given prison terms corresponding to the period of custody already served. The average length of prison sentences handed down was 8.4 years. Only 11 of those convicted were sentenced to life imprisonment. The report also points out that the proceedings complied with the right to a fair trial (“Human Rights First, In pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts – 2009 Update and Recent Developments”, 2009, 68 pp.). The statistics show that, objectively, the risk of being sentenced to life imprisonment without parole in cases of prosecution for terrorist offences is considerably lower than is commonly thought.” 30. In connection with the applicant’s possible re-extradition to Tunisia, the ministerial decree continued as follows: “By diplomatic note no. 21 of 10 August 2010 from the US Embassy the US authorities clearly indicated that if the Tunisian authorities applied to the United States for extradition, it would be turned down. ... Given the decision to refuse extradition to the Tunisian Republic, in view of the fact that re-extradition necessitates the agreement of the State which authorised the initial extradition, no re-extradition to the Tunisian Republic is possible. Since the Belgian authority refused extradition to the Tunisian Republic, if Tunisia were to transmit to the US a request for extradition in the future the US would also refuse it, and no extradition by the United States to the Tunisian Republic is possible.” 31. Lastly, the ministerial decision analysed the application of the ne bis in idem principle as follows: “Under the Agreement (the Extradition Agreement of 27 April 1987), Belgium and the United States of America ... have mutually undertaken to refuse extradition if the person sought has been acquitted in the requested State or has been convicted in the same State for the same offence as that for which extradition is being requested. Ratification ... incorporated this agreement into the Belgian and US legal systems. In other words it is not the acts but the legal classification of the acts, namely the offences, which must be identical. ... The facts forming the basis of the offences in question correspond to ‘overt acts’ which individually or together function as factual elements supporting the charges. The double jeopardy principle does not exclude the possibility of using or not using these elements. In the present case the offences for which the person sought was finally convicted by the Brussels Court of Appeal on 9 June 2004 do not correspond to the offences listed in charges A to D in the arrest warrant forming the basis for the US extradition request. The constituent elements of the respective US and Belgian offences, their scope and the place(s) and time(s) of their commission do not match up. ... Under US Federal criminal law an ‘overt act’ is a (factual) element, an act, a behaviour or a transaction which in itself may not necessarily be classified as an offence... An ‘overt act’ is merely a piece of supporting evidence which in itself or in conjunction with other overt acts may help constitute the offence or offences for which the person is being prosecuted, that is to say conspiracy, for instance to kill US nationals (see charge A). ... Although each of ‘overt acts’ nos. 24, 25 and 26 could be classified as an offence, these acts nonetheless do not constitute offences for which the extradition has been requested.” 32. Article 2 of the decree stated that “extradition will take place after the person sought has complied with the requirements of the Belgian courts”. 33. On the same day, under another ministerial decree, the Minister for Justice refused the Tunisian authorities’ request for the applicant’s extradition (see paragraph 10 above). 34. On 6 February 2012, relying on violations of Article 3 of the Convention and Article 4 of Protocol No. 7, the applicant lodged an application with the Conseil d’Etat for judicial review of the ministerial decree granting his extradition to the United States of America. 35. At the Conseil d’Etat hearing on 19 September 2013 the applicant relied on the Court’s judgment in Vinter and Others v. United Kingdom [GC] (nos. 66069/09, 130/10 and 3896/10, 9 July 2013). He deduced from this judgment that the Court had now adopted a position requiring preventive review of whether a life prison sentence was reducible or not before the prisoner began his sentence, and therefore that the distinction drawn in the Babar Ahmad and Others v. United Kingdom judgment, (nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, 10 April 2012) depending on whether the person subject to extradition had been convicted or not was no longer relevant. 36. In a judgment of 23 September 2013 the Conseil d’Etat dismissed the application for judicial review. As to the complaint under Article 3 of the Convention and the risk of an irreducible life sentence, the Conseil d’Etat reasoned as follows: “Even supposing that the applicant is sentenced by the US courts to life imprisonment, it should be noted that in its Vinter and Others v. United Kingdom judgment of 9 July 2013 [the Court] ruled that: ‘a life sentence does not become irreducible by the mere fact that in practice it may be served in full’, that ‘no issue arises under Article 3 if a life sentence is de jure and de facto reducible ...’ and that ‘where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3’. In the present case, as in that of Babar Ahmad and Others v. United Kingdom which led to [the Court’s judgment] of 10 April 2012, the applicant has not been sentenced by a US court to life imprisonment, and has still less begun serving such a sentence. As in the aforementioned case, therefore, the applicant does not show that in the event of a life sentence, the question will arise whether there is any legitimate penological justification for continuing his imprisonment. Moreover, in his most recent submissions the applicant acknowledges that a possible life sentence imposed on him would be reducible de jure. US law allows him either to request a review or apply for a Presidential pardon or commutation of sentence, and the applicant does not contend that this power of executive clemency or sentence commutation is accompanied by restrictions comparable to those in issue in the [Court’s] aforementioned judgment of 9 July 2013. Although the applicant challenges the assertion that such a sentence is reducible de facto, the explanations provided to the opposing party by the US authorities do show that the US President has already used his power to commute sentences. Therefore, the legal remedy available to the applicant in the event of a life prison sentence is not excluded in practice. Furthermore, the applicant’s contention that since the 11 September 2001 terrorist attack it has been inconceivable for the US President to grant a pardon to or commute the sentence of a person convicted of terrorism has not been substantiated by any reliable information, nor can it be in view of the relatively short period of time, as compared with a life sentence, which has elapsed since the said attack and any criminal sentences subsequently imposed. As in Babar Ahmad ..., therefore, it has not been established that the US authorities would, when appropriate, refuse to implement the available sentence-reducing mechanisms where there was no legitimate penological justification for continuing the applicant’s imprisonment. Any possible life sentence imposed on the applicant would therefore also be reducible de facto. Consequently, it is unnecessary to determine whether the opposing party was wrong to consider that the applicant would not necessarily be sentenced to life imprisonment, because, even if he were sentenced to such a prison term, this penalty would not constitute a breach of Article 3 [of the Convention]”. 37. As to the complaint under Article 5 of the Extradition Agreement between the Kingdom of Belgium and the United States of America, Article 4 of Protocol No. 7 to the Convention and Article 14 § 7 of the International Covenant on Civil and Political Rights, the Conseil d’Etat held that: “The US authorities request the applicant’s extradition on four charges, namely: 1) Conspiracy to kill United States nationals outside of the United States; 2) Conspiracy and attempt to use of weapons of mass destruction; 3) Conspiracy to provide material support and resources to a foreign terrorist organisation; 4) Providing material support and resources to a foreign terrorist organisation, in violation of the following provisions. Again according to the US authorities, in order to commit these offences as charged the applicant and four accomplices carried out a series of ‘overt acts’, including those for which extradition is being granted to the US authorities presented as follows: [a list of 28 charges follows]. In Belgium the charges (‘in the Brussels judicial district and, on related charges, elsewhere in the Kingdom’) against the applicant are as follows: [a list of 13 charges follows]. Comparing all the ‘overt acts’ for which extradition has been granted to the US authorities with all the Belgian charges valid ‘in the Brussels judicial district and ... elsewhere in the Kingdom’, it will be noted that the former have no territorial link with the Kingdom of Belgium, constituting a set of acts which serve as the constituent elements of the four charges presented by the US authorities. It emerges from the case file that the applicant is wanted by the US authorities for a number of offences in respect of which he has not been ‘found guilty, convicted or acquitted in the requested State’ and that the ‘overt acts’ constitute so many elements to be used by the US judicial authorities to establish whether the applicant is guilty or innocent of the four charges brought against him.” 38. On 6 December 2011, the date of notification of the ministerial decrees relating to the requests for extradition (see paragraphs 28 and 33), the applicant lodged a request with the Court for the indication of an interim measure pursuant to Rule 39 of the Rules of Court with a view to suspending his extradition. 39. On the same day the Court acceded to the applicant’s request and decided to indicate to the Government, in the interests of the parties and of the proper conduct of proceedings before it, that it should not extradite the applicant to the United States of America. 40. On 20 December 2011, arguing that the interim measure had been indicated prematurely because the applicant had not yet been placed in custody pending extradition and that such a measure would create a situation detrimental to the proper administration of justice, the Belgian Government requested that the measure be lifted. 41. On 11 January 2012, the Court, having re-examined the application in the light of the information supplied by the parties, decided, on the basis of the said information, to refuse to lift the interim measure. 42. On 21 May 2012 the Government submitted a second request for the lifting of the interim measure. 43. In reply, the Court pointed out, in a letter of 25 May 2012, that the request to lift the measure and the application would be re-examined once the judgment delivered on 10 April 2012 by the Court in Babar Ahmad and Others v. United Kingdom, cited above, had become final. 44. In a letter of 25 June 2012 the Court informed the parties that the examination of the request to lift the interim measure had been postponed indefinitely in view of the request for referral to the Grand Chamber of the cases Vinter and Others v. United Kingdom (no. 66069/09) and Harkins and Edwards v. United Kingdom (nos. 9146/07 and 32650/07). 45. On 3 August 2012 the Court informed the parties that it had been decided to refer the aforementioned Vinter case to the Grand Chamber and that the question of the request to lift the interim measure would be re-examined when a decision had been taken on the request for referral of the aforementioned case of Babar Ahmad and Others to the Grand Chamber. 46. The application was communicated to the respondent Government on 27 November 2012. 47. In their observations on the admissibility and merits of the application the Government requested, for the third time, the immediate lifting of the interim measure. 48. In a letter of 7 January 2013 the Court replied that the Government would be informed in due course of the decision taken by the Court on the interim measure. 49. On 15 January 2013 it was decided to maintain the interim measure for the duration of the proceedings before the Court. 50. In a letter of 18 June 2013 in reply to a fourth request from the Government to lift the interim measure, the Court stated that the interim measure had been maintained and would be applied until the end of the proceedings before it. 51. On 10 July 2013 the Court informed the parties that examination of the case had been adjourned in view of the imminent delivery of the judgment of the Conseil d’Etat and of the Grand Chamber judgment in Vinter and Others [GC] (nos. 66069/09, 130/10 and 3896/10, 9 July 2013). 52. In reply to a question from the Government on the deadline for dealing with the case, the Court informed them on 25 September 2013 that the examination of the case would begin at the end of October or the beginning of November. 53. On 18 October 2013 the Court informed the parties that the chamber constituted to examine the case was intending to relinquish the case to the Grand Chamber under Article 30 of the Convention. 54. By letter of 31 October 2013 the applicant expressed his agreement to such relinquishment. The Government, on the other hand, indicated, by letter of 8 November 2013, that they opposed relinquishment. 55. On 24 June 2012, having served the sentences imposed on him (see paragraph 11 above), the applicant was taken into custody pending extradition in pursuance of section 3 of the Extradition Act of 15 March 1874. 56. On 7 June 2012 the applicant lodged a first application for release with the Nivelles Regional Court. By an order of 12 June 2012 the chambre du conseil dismissed the application. The order was upheld by the Indictments Division of the Brussels Court of Appeal on 28 June 2012. 57. Subsequently, having meanwhile been transferred first to Bruges Prison and then to Hasselt Prison, the applicant lodged a second application for release on 13 August 2012 with the Hasselt Regional Court. On 24 August 2012 the chambre du conseil allowed his application. On appeal from the public prosecutor, by judgment of 6 September 2012, the Indictments Division of Antwerp Court of Appeal set aside this decision and dismissed the application. 58. On 3 December 2012 the applicant lodged a third application for release. By an order of 14 December 2012 the chambre du conseil of the Hasselt Regional Court declared the application unfounded. The applicant appealed to the Indictments Division of Antwerp Court of Appeal, which upheld the aforementioned decision by judgment of 10 January 2013. 59. In January 2013, having meanwhile been transferred to Mons Prison, the applicant lodged a fourth application for release, which was declared unfounded by the chambre du conseil of the Mons Regional Court on 4 February 2013, and then by the Indictments Division of the Mons Court of Appeal on 21 February 2013. 60. On 23 August 2013, having meanwhile been transferred to Ittre Prison, the applicant lodged a fifth application for release. This application was dismissed by the chambre du conseil of Nivelles Regional Court on 28 August 2013 and then by the Indictments Division of the Brussels Court of Appeal on 12 September 2013. 61. Meanwhile, on 5 September 2013, the applicant had left Ittre Prison for Bruges Prison, having obtained a date for his wedding to a Belgian national with whom he had had two children. 62. On 3 October 2013 the applicant was informed that he was being transferred from Bruges Prison to Ittre Prison. In fact he was being taken to Melsbroek military airport, where Federal Bureau of Investigation (FBI) agents were waiting for him. At 11.30 a.m. he was extradited to the United States. 63. The Minister for Justice issued a public statement announcing the applicant’s departure at 1.30 p.m. 64. At 3 p.m. the applicant’s lawyer made a highly urgent ex parte application to the President of Brussels Regional Court. The decision, which was given at 6.30 p.m., stated that the Belgian State was required to comply with the interim measure indicated by the Court, and ordered “prohibition or suspension of the applicant’s extradition, as far as this might be possible”, on pain of a fine of EUR 5,000 (five thousand euros). The Court has not been informed of any appeal against this order. 65. In the United States the applicant was immediately placed in custody. On 7 October 2013, assisted by an officially appointed lawyer, he was brought before the District Court of the District of Columbia to hear the charges against him. 66. The applicant is currently being held in the Rappahannock regional prison in Stafford (Virginia). On 1 November 2013 a letter from the prison administration to the Belgian authorities stated that the applicant was subject to the same conditions of detention as all other prisoners. 67. According to an email sent on 6 November 2013 by the applicant’s US lawyer to his representative before the Court, the applicant was allowed to have postal contact with the outside world, but all correspondence would be translated and read in advance by the US Government. He was also allowed to have telephone contact with some members of his family provided that an interpreter was available. Close relatives could visit him subject to obtaining a US entry visa. 68. The applicant was visited by his lawyer, who, in an email sent to a member of his family on 7 December 2013, said that he had been placed in an isolated cell. She expressed concern about his mental state.
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test
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001-142394
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ENG
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LVA
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CHAMBER
| 2,014 |
CASE OF DJUNDIKS v. LATVIA
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Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Alcoholics);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
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George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
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6. The applicant was born in 1939 and lives in Liepāja. 7. It appears that in 1983 the applicant was certified as being Category 3 disabled (the least severe level of disability). 8. On 28 April 2004 the applicant was certified as being Category 2 disabled (the medium level of disability) on the grounds of an unspecified illness. His disability was to be reassessed on a further occasion. 9. According to the applicant, on 29 April 2008 his Category 2 disability status was certified as permanent. 10. On 19 August 2003 the applicant was administratively detained by the municipal police. The circumstances are disputed between the parties. 11. According to the Government, at 8 p.m. on 19 August 2003 the fire and rescue services received a call about a man who was lying on the ground near an apartment building. A municipal police patrol was dispatched to the address given. Police officers I.L. and N.M. arrived there at 8.18 p.m. and found no one there. However, they were approached by an unidentified woman who indicated that somebody was lying on the stairs inside the building. They found the applicant lying face-down on the stairs between the ground and 1st floor. He appeared to be in a state of heavy alcohol intoxication, was unable to communicate or identify himself, and was unable to move. He had several bruises and grazes on his face – cheeks, eyebrows and forehead. The officers carried him by his arms and legs to a municipal police van and took him to the municipal police station. They arrived there approximately one hour later, on the way having picked up another person who had been lying on the ground unconscious somewhere else. 12. At the municipal police station, a medical orderly visually examined the applicant and treated and recorded his facial injuries. The officers then carried him to a “sobering-up room” and placed him on a wooden plank bed. Several hours later the applicant was able to reveal his identity. According to the Government, reports (protokoli) in respect of administrative detention (administratīvā aizturēšana) and the administrative offence of “indecent public behaviour while being in a state of alcohol intoxication” were being drawn up. The Government could not provide the Court with copies of these procedural documents since they were destroyed in 2008 upon the expiry of their archival period. 13. Later, at some point during the night of 19 to 20 August 2003, the applicant complained of pain in his left leg. The medical orderly called an ambulance and the applicant was taken to a hospital in Liepāja. 14. The applicant did not agree with the Government’s version of the events. According to the applicant, on 19 August 2003, between 6 p.m. and 7 p.m., he was sitting on a bench by the apartment building he lived in with a bottle of beer in his hand, when the municipal police arrived and two officers approached him with a view to taking him to the municipal police station. They did not inform him of the reasons for his detention; he got into the police van by himself and was taken to the municipal police station, where at 8.55 p.m. an administrative detention report was drawn up. 15. At the station, he was briefly examined to determine his state of health and level of intoxication. Following an examination, an officer instructed him to stand up immediately. The applicant replied that he was capable of doing so by himself, but slowly. Then another officer, who was standing behind him, ordered him to do as requested and then took him by the shoulders and pushed him against a wall. His left eye was hurt to the extent that he later required several stiches. The officer then grabbed the applicant by his clothes and dragged him on to the floor and down the stairs to the sobering-up room. The applicant tried to turn onto his left side as he had had an operation on his right leg and he was trying to spare it. While he was being dragged down the stairs, he felt a sharp pain in his left leg and started to scream. The officer did not stop; he dragged him into a cell and left him there. The applicant was unable to move. After some time, three persons entered the cell, took off his trousers, causing him more pain, and injected him with some substances. Then an unidentified officer approached him with a view to getting him to sign another report. He refused, protesting that he had already signed one. At about 5 a.m. an ambulance arrived and took him to a hospital in Liepāja. 16. The contents of the applicant’s administrative detention report were partly reproduced in expert report no. 352 of 13 November 2003 and read as follows: “This report has been drawn up by ... N.H. on 19 August 2003, at 8.55 p.m., in Liepāja in respect of the applicant [date of birth and address][, who] was administratively detained and taken to the sobering-up room of the municipal police station on 19 August 2003, at 8.55 p.m. Reason for detention: to sober up. In the presence of witnesses [the applicant’s] keys were confiscated. Detainee’s clothes: blue blazer, dark shirt, blue trousers and dark shoes. In a check-up [the following] injuries were discovered: a bruise on the face, a bruise on the left eyebrow. The applicant was released on 20 August 2003, at 5.25 a.m. Reason for release: sobered up. Upon release: received keys. No complaints.” 17. According to the ambulance log, a call was recorded at 5 a.m. on 20 August 2003. At 5.13 a.m. an ambulance arrived at the municipal police station. In the field “diagnoses” it was noted that the applicant’s left hip and head were injured, there were bruises on his face, and he was in a state of alcohol intoxication. In the field “additional findings” it was noted that the applicant had bruises on his face and the lower part of his body. He was taken to hospital, where at 5.45 a.m. his blood alcohol level was measured (0.25 ‰). 18. From 20 August to 2 September 2003 the applicant remained in hospital. Following an X-ray examination he was diagnosed with a fracture to his left hip (kreisā augšstilba kakla kauliņa lūzums). On 22 August 2003 an operation (endo-prosthesis) was performed and over the next few days the applicant received post-operative treatment. 19. On 2 September 2003 the applicant was issued with an extract from his medical file at the hospital. The extract did not contain any mention of the applicant’s own description of the circumstances relating to his hip fracture. 20. On 8 September 2003 the applicant made a complaint to the prosecutor’s office which was for the most part similar to his allegations before the Court. The municipal police were requested to prepare an internal report; on 23 September 2003 they issued report no. 9, the contents of which were later for the most part reproduced in the first decision (see paragraph 23 below). 21. On 16 September 2003 the applicant’s complaint was forwarded for examination to the Liepāja police, a branch of the State Police. 22. On 1 October 2003 an expert examined the applicant’s medical records and drew up report no. 407. Reference was made to a statement the applicant had made in the hospital that “he had fallen down somewhere on the street”. The expert concluded that the applicant had sustained a bodily injury – a fracture of the left hip – which was classified as moderately severe (vidēja smaguma miesas bojājumi). This injury could have been sustained as a result of being hit by blunt objects or bumping into such objects. 23. On 13 October 2003 the Liepāja police decided not to institute criminal proceedings with regard to the injuries suffered by the applicant (“the first decision”). Reference was made to the internal report of 23 September 2003. According to the report, the events developed as follows. At 8.18 p.m. on 19 August 2003, the municipal police received a call from the fire and rescue services informing them that a man was lying near an apartment building. Upon their arrival the officers found the applicant lying inside the apartment building on the stairs between the ground and 1st floor. He was too intoxicated to give any explanation; the police officers carried him out of the apartment building, placed him in the van and took him to the police station. He was placed in the sobering-up area, which was located in the basement. The officers carried the applicant into a cell as he was unable to move. After about three hours the applicant was able to reveal his identity. He then complained about pain in his leg and a medical orderly called an ambulance to the police station. No injections were given to the applicant. He was detained on the basis of paragraph one of section 171 of the Code of Administrative Violations. On the basis of the case-file materials in their entirety, it was concluded that the applicant “could have sustained” injuries by falling on the stairs in the apartment building. There were no grounds to believe that the applicant’s injuries had been wilfully inflicted in the sobering-up room or that excessive physical force had been used on him. There were no indications that the officers had exceeded their authority. 24. On 27 October 2003 the applicant lodged a complaint, noting that two witnesses had seen him getting into the police van by himself when being taken to the police station. 25. On 7 November 2003 the supervising prosecutor quashed the first decision and the case was remitted to the Liepāja police for additional investigation. The quashing order was issued on the ground that the applicant had not been questioned on the facts, nor had his neighbours been questioned; the person who had called the fire and rescue services had not been identified or questioned; the witnesses identified by the applicant had not been questioned; and lastly, the ambulance personnel had not been questioned. 26. During additional investigation the Liepāja police received information from the fire and rescue services and questioned the applicant’s neighbours, including V.S., who had been identified by the applicant as a witness, and a doctor from the hospital. Another medico-legal examination was also ordered. 27. On 13 November 2003 an expert examined the applicant and his administrative detention report and drew up report no. 352 in addition to report no. 407. The background to the report was described as follows: “On 19 August 2003 police officers [allegedly] inflicted bodily injuries on the applicant at the police station. On 1 October 2003 an expert examined the applicant’s medical records (report no. 407). The applicant ... alleged that he had suffered additional injuries to different parts of his body (eyebrow, lower body), [which were] not documented in the medical records”. The expert concluded that the applicant had the following injuries: “a scar on his left eyebrow that could be due to a cicatrised wound that had been stitched” and “scars on the back of the applicant’s torso and on the buttock area that could have appeared after bruises had healed”. They were both classified as minor bodily injuries (viegli miesas bojājumi). 28. On 25 November 2003 the Liepāja police again refused to institute criminal proceedings (“the second decision”). In addition to the grounds of the first decision, the second decision was based on the grounds that the fire and rescue services did not hold information about incoming calls concerning alcohol intoxication. Such calls were transferred to the municipal police. According to the second decision, an acquaintance of the applicant, V.S., stated that he had seen him sitting on a bench and consuming beer at about 6.30 or 7 p.m., and then the municipal police had arrived. Other statements were taken from neighbours, but they only indicated that the applicant often sat on the bench by the apartment building consuming alcohol. One neighbour, B.K., stated that the applicant had a “difficult” personality and that “he often started fights”. Further, it was noted that “it was not possible to identify direct witnesses who could provide objective information about [the applicant’s] arrest”. The ambulance record indicated that the applicant had been taken from the municipal police station to the hospital with injuries to his left hip and head, bruises on his face and in a state of alcohol intoxication. Finally, the doctor’s statement indicated that he had examined the applicant at 10 a.m., when he had sobered up; the doctor had inquired about the circumstances of the injury and the applicant had replied that he had fallen down somewhere on the street. A note was made that the conclusions drawn following the internal inquiry were confirmed by other case-file materials and that the statements made by the applicant and V.S. should be evaluated with caution. On the basis of the case-file materials in their entirety, it was concluded that the applicant “could have sustained” the injuries by falling on the stairs in the apartment building. There were no grounds for finding that the applicant’s injuries had been wilfully inflicted in the sobering-up room, or that excessive physical force had been used on him. There were no indications that the officers had exceeded their authority. 29. On 26 January 2004 the supervising prosecutor examined the case-file materials and dismissed a complaint by the applicant about the second decision. She noted that the Liepāja police, even after her instructions, could not find any witness to his detention. It appears that she herself questioned V.S. for a second time. He clarified that he had only seen the applicant sitting on the bench; when the municipal police had arrived, he could not see the bench any more, as the van blocked the scene from his view. He testified that the police had been there for three to four minutes. In response to the applicant’s allegations as to the location, nature and probable cause of his injuries in the circumstances, the prosecutor stated that the expert’s observation that they could have been sustained as a result of being hit with blunt objects or bumping into such objects was only a probability and not an assertion. Moreover, she considered that there were no grounds to disregard the hospital doctor’s remark that the circumstances of the applicant’s injuries had been taken down in his own words. The prosecutor noted that his injuries, as detected upon his admission to the police station (bruises on the face and left eyebrow), were confirmed by the statement of N.M; his alcohol intoxication was confirmed by the ambulance and hospital medical records and the statements of the police officers, the watch officer (N.H.), and the medical orderly (A.B.). She concluded that her previous instructions (issued on 7 November 2003) had been complied with and that on the basis of the case-file materials in their entirety “it [could] not be precluded” that the applicant sustained the injuries before his detention as he had been admitted to the station in an intoxicated state with visible injuries on his face. 30. On 17 March 2004 and 21 May 2004 two higher-ranking prosecutors dismissed the applicant’s complaints against the second decision. The first prosecutor considered that the review of the applicant’s complaints had been comprehensive and objective; no evidence had been found that the officers had exceeded their authority. Referring to the medico-legal examination report, the prosecutor considered that the applicant “could have sustained” injuries by falling from his own height, as he had indicated to the hospital doctor, whose testimony was to be given more weight as he was not an interested party. The second prosecutor also found the second decision justified. He referred to the administrative detention “documentation” and the officers’ statements to demonstrate that the applicant had been lying on the stairs in the apartment building and not sitting on the bench next to it; V.S.’s statements did not corroborate these facts. The officers had taken the applicant to the sobering-up room because he had been unable to move by himself because of either his intoxicated state or his injuries. He concluded: “It follows from the foregoing that [the applicant] must have sustained the injuries before the arrival of the municipal police officers. [The applicant’s] blood alcohol level after more than eleven hours of detention only further demonstrates that prior to detention [the applicant] was intoxicated with alcohol. This does not exclude the possibility that [the applicant] sustained injuries by falling from [his own] height.” 31. On 20 July 2004 a prosecutor at the Office of the Prosecutor General dismissed the applicant’s complaint. She examined the case-file materials and found that there were no grounds to quash the second decision. Among other things, she noted that section 171 of the Code of Administrative Violations provided for administrative liability for the use of alcoholic beverages or other intoxicating substances in public places or for appearing in public places in an intoxicated state, which was an affront to human dignity. For that reason, notwithstanding the discrepancy between the submissions of the officers, who had stated that the applicant had been lying inside the apartment building, and the applicant, who had stated that he had been sitting on a bench outside the building, the officers had had grounds to take him to the municipal police station to sober up and to draw up an administrative offence report. 32. On 4 August 2004 the applicant, in a complaint to a higher-ranking prosecutor, specified that his complaints did not relate to unjustified placement (nepamatota nogādāšana) in the sobering-up room or to being taken there by force. Rather, they related to the failure to institute criminal proceedings in connection with bodily injuries inflicted on him while there. 33. On 19 August 2004 the higher-ranking prosecutor at the Office of the Prosecutor General dismissed the applicant’s complaint. It appears that he obtained additional statements from officers I.L. and N.M., and the watch officer N.H. The prosecutor found that the applicant’s allegation that the injury on his left eyebrow had been inflicted by officers pushing him against the wall in the police station were not corroborated by the officers’ statements and the medical orderly’s indication that the applicant had been admitted with the injury. Nor was the applicant’s allegation that his left hip had been broken by the officers dragging him down the stairs at the police station confirmed. The officers had explained that they had carried him into the station as he had not been able to walk by himself. The prosecutor concluded that the applicant had sustained the injuries before his administrative detention. 34. A final decision, negative in respect of the applicant, was adopted by the Prosecutor General on 13 October 2004. He found that the applicant’s allegations concerning contradictions and discrepancies in the case-file materials were unfounded. He noted, among other things, that the applicant’s detention record and the medical record drawn up upon his admission to the police station confirmed that he already had injuries on his face and left eyebrow, thus his allegations about sustaining the injuries in the station were not confirmed. The applicant had been carried into the station because he had not been able to walk by himself and he had complained about pain in his hip only after sobering up, after which the medical orderly had called an ambulance. 35. The applicant received the decision on 15 October 2004.
| 1 |
test
|
001-179437
|
ENG
|
ROU
|
COMMITTEE
| 2,017 |
CASE OF POCA 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. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-152850
|
ENG
|
BGR
|
CHAMBER
| 2,015 |
CASE OF S.Z. v. BULGARIA
| 3 |
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Respondent State to take measures of a general character (Article 46 - Systemic problem;General measures)
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
|
5. The applicant was born in 1977 and lives in Sofia. 6. On 19 September 1999 the applicant, then a 22-year-old student, left Sofia for Blagoevgrad in a vehicle with two young men, B.Z. and S.P., and another young woman whom she frequented at the time and whose acquaintance she had made through one of her close friends, H.I. During the journey the two men told her that they intended to “sell” her as a prostitute to people with whom they were in contact in Blagoevgrad, and then to “take her back” after receiving the money. The applicant refused, but was threatened by B.Z. On their arrival at Blagoevgrad the group met a number of people in various cafés in the town; those people were apparently involved in prostitution rings abroad and discussed with B.Z. and S.P. sending the applicant to Greece, Italy or Macedonia to work as a prostitute and her alleged experience in the trade. The applicant was told that three of the men they had met were police officers. The applicant was then taken to a flat where she was held against her will and repeatedly beaten and raped by several men for about 48 hours, following which she managed to escape and found refuge in a neighbouring apartment block where occupants called the police. 7. During her first police interview the applicant attempted to throw herself out of the window and was then admitted to a psychiatric hospital. She subsequently received psychological counselling. 8. A criminal investigation was instituted by the Blagoevgrad District Public Prosecutor’s Office for abduction and false imprisonment; abduction for the purposes of coercing into prostitution; and rape. The applicant identified some of her assailants and two police officers whom the group had met prior to holding her against her will. She stated that the men were part of a criminal gang involved in human trafficking who wanted to force her into prostitution in western Europe. 9. In an order of 19 October 1999 the Blagoevgrad military prosecutor considered that there was insufficient evidence to prosecute the two police officers, Z.B. and Y.G., who had been charged with abduction, and discontinued the proceedings against them. The prosecutor observed, in particular, that after initially identifying the police officers, the applicant had not subsequently claimed that they had taken part in her abduction and false imprisonment. The prosecutor’s order was amenable to appeal, but the applicant does not appear to have lodged one. 10. During 1999 and 2000 several people involved were questioned, and an expert medical report was drawn up. The investigation was closed and the case sent to the prosecutor for a decision regarding committal for trial. However, on 12 April 2001 the prosecutor decided to send the case back for further investigation on the grounds that irregularities had been committed and further evidence was required regarding the involvement of H.I. and another individual, G.M. Subsequently the case was returned three more times for further investigation. In an order of 2 November 2001, the prosecutor found that the investigator had failed to carry out any investigative measures since the case had been sent back. He also noted a number of irregularities in the charges against the various defendants, such as wrong dates, inaccurate legal classifications or inconsistencies between the facts set out and the legal classification retained. The prosecutor also noted that the investigation had been carried out in the absence of one of the defendants without a duty lawyer being appointed and that some of the charges had to be amended, to take account, inter alia, of the fact that the applicant had attempted to commit suicide, which was an aggravating circumstance. In an order of 16 October 2002, the prosecutor noted that no measures had been carried out in accordance with his previous decision. In a further order of 12 March 2004, he observed that the instructions given had not been followed in their entirety, and in particular that the charges had not been amended. 11. The investigation was closed again and sent to the prosecutor on l3 November 2005. On 23 December 2005 the prosecutor decided to discontinue the proceedings against H.I. and G.M., who had been prosecuted for abduction for the purposes of coercing into prostitution and incitement to prostitution respectively, on the grounds that the offences had not been made out. On appeal by the applicant, that decision was set aside by the court on 29 March 2006. 12. The investigation was closed in May 2007 and the applicant was served with the investigation file. She then requested that one of the men she had identified from a photo, Y.Y.G., also be charged with rape. Her request was rejected on 7 June 2007 by the district prosecutor, who considered that there was insufficient evidence against him, the applicant’s statement being the only basis for implicating him in the attack. On 26 June 2007 part of the investigation, which concerned the offences of which the applicant accused Y.Y.G. and K.M., was severed from the main proceedings and fresh proceedings brought against persons unknown. On 12 September 2007 the Blagoevgrad appellate prosecutor’s office upheld the decision not to charge Y.Y.G., noting that if new evidence were to emerge, the investigators could bring further charges in the proceedings against persons unknown. On 15 February 2008 those proceedings were stayed, on the ground that the perpetrators had not been identified. 13. On an unspecified date in 2007 seven defendants were committed for trial in the Blagoevgrad District Court on charges of false imprisonment, rape, incitement to prostitution or abduction for the purposes of coercing into prostitution. 14. On 5 December 2007 the applicant sought leave to join the proceedings as a private prosecutor and civil party seeking damages. The court granted the application at a hearing held on 9 May 2008. 15. The Blagoevgrad District Court held 22 hearings. About ten of these were adjourned, mainly because the defendants or witnesses had not been properly summoned. The trial took place in the absence of one of the defendants, S.P., whom the authorities had been unable to find. 16. In a judgment of 27 March 2012, the court convicted L.D. and M.K. of gang rape, aggravated by the fact that the victim had attempted to commit suicide, and false imprisonment with aggravated circumstances. They were sentenced to six years’ imprisonment. B.Z. and S.P. were convicted of abducting the applicant for the purposes of coercing her into prostitution and sentenced to six and four years’ imprisonment respectively. S.D. was convicted of false imprisonment and sentenced to a fine of 3,000 levs (BGN). The court found that the offence of incitement to prostitution for which G.M. was being prosecuted was time-barred in accordance with the absolute limitation period and discontinued the proceedings against him. Lastly, it found H.I. not guilty of abduction for the purposes of coercing into prostitution on the grounds that the offence had not been made out as H.I. had not been present at the material time. The five defendants who had been convicted were ordered to pay the applicant damages, and the claim against the other two defendants was rejected. 17. The five defendants who had been convicted appealed. The applicant appealed only against the part of the judgment concerning S.D., requesting the imposition of a heavier sentence and an increase in the amount awarded in damages. 18. Seven hearings before the Blagoevgrad Regional Court were adjourned on account of the absence of one of the accused or their lawyers. The first hearing on the merits took place on 8 November 2013. As two of the defendants, S.P. and G.M. had not appeared, the court decided to examine the case in their absence. 19. In a final judgment of 11 February 2014, the court set aside S.D.’s conviction and terminated the proceedings against him on the grounds that they had become irrevocably time-barred. It amended the judgment concerning the other defendants: the classification of the offence of which L.D. and M.K. had been convicted was slightly amended and their sentence reduced to five years’ imprisonment. The sentence imposed on B.Z. was reduced to three years’ imprisonment and S.P.’s four-year prison sentence was upheld. 20. The court also reduced the amounts awarded to the applicant in non-pecuniary damages. It awarded the applicant a total amount of BGN 39,000, which was the equivalent of approximately 20,000 euros (EUR), ordering L.D. and M.K. to pay the applicant BGN 15,000 each, and B.Z, S.P. and S.D. to pay her BGN 4,000, BGN 3,000 and BGN 2,000 respectively. 21. During the judicial proceedings the applicant, who was living in Sofia, had to travel to Blagoevgrad on numerous occasions to attend hearings. She was called to the witness stand seven times. According to a medical opinion produced by the applicant, each summons to appear before the court had adversely affected her psychological condition. ...
| 1 |
test
|
001-160993
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF GORBUNOV AND GORBACHEV v. RUSSIA
| 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)
|
Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
5. The first applicant was born in 1971 and is serving a prison sentence in the Vologda Region. The second applicant was born in 1975 and is serving a prison sentence in the Kostroma Region. 6. On 24 October 2005 the first applicant was arrested on suspicion of manslaughter. He remained in custody pending investigation and trial. His defence was carried out by a State-appointed lawyer, M. 7. On 24 July 2006 the Vologda Town Court found the applicant guilty as charged and sentenced him to nine and a half years’ imprisonment. The applicant, but not his State-appointed lawyer, appealed. 8. On 13 and 21 November 2006 the applicant informed the Vologda Regional Court that he did not wish to be represented by M. in view of the perfunctory nature of the services that she had provided. 9. On 6 December 2006 another lawyer, Ye., was appointed to represent the applicant before the appeal court. On the same date she studied the case file. 10. On 7 December 2006 the Regional Court examined the applicant’s case on appeal. The applicant was in a special room in a detention facility from which he could participate in the appeal hearing by means of a video link. Ye. was present in the courtroom. She did not submit fresh grounds for appeal and made oral submissions to the court that appeared to be based on the grounds for appeal originally filed by the applicant. The court upheld the applicant’s conviction. 11. According to the applicant, at the beginning of the hearing he asked the court to provide him with an opportunity to meet with Ye. in private to discuss his line of defence. His request was refused. He was then removed from the room where the video conference equipment was installed and thus was prevented from following the appeal hearing which took place in his absence. 12. According to the Government, the applicant had had ample opportunity to communicate with Ye. prior to the appeal hearing via video link. He did not argue before the appeal court that he had been unable to discuss his case with Ye. in order to make sure that she had a sufficiently thorough knowledge of the case as to be able to carry out his defence effectively. The applicant stayed in the video-conference room throughout the appeal hearing and was not prevented in any way from participating in it. 13. On an unspecified date the second applicant was arrested and charged with murder and robbery. He remained in custody pending investigation and trial. 14. On 26 December 2006 the Kostroma Regional Court found the applicant guilty as charged and sentenced him to seventeen years’ imprisonment. The applicant appealed, stating that he was not guilty and that the trial court had erred in assessing the evidence before it. 15. On 12 April 2007 the applicant asked the Supreme Court (acting as the appeal court) in writing to appoint a lawyer to represent him. 16. On 18 April 2007 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal. The applicant participated in the hearing by means of a video link. According to the applicant, the quality of the sound was very poor. He could not hear or understand the judges. He stated that he reiterated his request to be represented before the appeal court; that request was refused. 17. On 16 September 2010 the Court gave notice of the application to the Government. 18. On 16 March 2011 the Presidium of the Supreme Court of the Russian Federation considered a supervisory review appeal lodged by Deputy Prosecutor General. The court acknowledged that the applicant’s right to be provided with legal counsel had been infringed, quashed the appeal judgment of 18 April 2007, and remitted the matter for fresh consideration to the appeal court. The applicant participated in the proceedings by means of a video link. He was represented by a Stateappointed lawyer, U. 19. On an unspecified date another lawyer, M., was appointed to represent the applicant. Prior to the hearing before the appeal court, she studied the material in his case file. 20. On 19 May 2011 the applicant discussed his case with M. by means of a video link. 21. On the same date the Supreme Court held the appeal hearing. The applicant participated in the proceedings by means of a video link. According to the transcript of the appeal hearing, the applicant agreed that his defence would be carried out by lawyer M. He further asked the court for additional time in which to meet with M. to discuss his defence. The court adjourned the hearing in order to ensure that the applicant could meet with M. 22. On 20 May 2011 the Supreme Court resumed the hearing. The applicant informed the court that he had discussed the case with M. by means of a video link. The court heard the applicant, M., and the prosecutor. M. did not submit any grounds for appeal; she only made oral submissions to the court that appeared to be based on the grounds for appeal originally filed by the applicant. The Supreme Court upheld the applicant’s conviction in substance, but reduced his sentence to sixteen and a half years’ imprisonment.
| 1 |
test
|
001-180849
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF BOPKHOYEVA v. RUSSIA
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
4. The applicant was born in 1990 and lives in Galashki, Ingushetia Republic. 5. On 11 December 2009 the applicant was abducted by S. with intent to marry her. The applicant’s mother opposed the marriage and on the same day S.’s relatives took the applicant back to her mother’s house. 6. On 12 December 2009 the relatives of the applicant’s deceased father made the applicant go back to S.’s, because of the presumed consummation of the marriage. They also threatened to kill S., should the applicant decide to leave him. 7. The applicant had to live with S.’s family as his wife. The marriage was not officially registered. She was kept locked in a room without being able to communicate with people outside S.’s family. S. moved to a different town. On rare occasions S.’s sister let the applicant use her mobile phone so that she could call her mother. She complained that S.’s family, especially her mother-in-law, treated her poorly. She did not feel well and complained about dizziness, numbing of the lower jaw and difficulty to breathe. According to the applicant’s mother, the applicant told her once that her mother-in-law did not let her see S. and claimed that the applicant would not last living with them longer than two months. On several occasions the applicant lost consciousness and foamed at the mouth. 8. On 28 December 2009 the applicant was taken to a municipal hospital. The doctor diagnosed her with renal colic. 9. On 29 December 2009 during another visit to hospital the applicant was diagnosed with poisoning by unknown substance. 10. On 1 February 2010 the applicant foamed at the mouth again and was taken to hospital. She was released on the same day. 11. On 2 February 2010 the applicant lost consciousness and was taken to hospital. A general practitioner and a neuropathologist examined her. She was diagnosed with stress and overdose of sedatives and placed in an intensive care unit. Subsequently she was diagnosed with post-hypoxic encephalopathy and vegetative state. She has not regained consciousness since then. 12. In April 2010 the applicant was released to her mother’s care. 13. On 23 September 2010 the applicant’s mother complained to the local police department and prosecutor’s office that the applicant had been forcefully held by S.’s family in inhuman conditions which led to deterioration of her health and coma. 14. On 10 October 2010 the investigator refused to institute criminal proceedings against S.’s family on the charges of incitement of suicide and causing damage to health. 15. On 24 October 2011 the applicant’s mother lodged another complaint with the local police department alleging that the applicant had been poisoned while staying at S.’s house. She also stated that the applicant had been repeatedly beaten up and deprived of her liberty. 16. According to the forensic medical report completed on 8 November 2011, a vegetative state, similar to the applicant’s, could be caused primarily by intoxication. The expert, however, was unable to determine the cause of the applicant’s condition. 17. On 24 November 2011 the investigator refused to institute criminal proceedings against S.’s family. The applicant appealed. 18. On 29 July 2012 the supervising prosecutor quashed the decision of 24 November 2011 and ordered further inquiry into the matter. 19. On 3 August 2012 the investigator refused to institute criminal proceedings on the charges of attempted murder. 20. On 1 October 2012 the investigator refused to institute criminal proceedings on the charges of causing serious damage to health. The applicant appealed. 21. On 26 July 2013 the Sunzhenskiy District Court of the Ingushetiya Republic quashed the decision of 1 October 2012. The court noted that the inquiry had been incomplete. The investigator had failed (1) to question a number of important witnesses and (2) to determine the cause of the applicant’s condition. 22. On 26 September 2013 the investigator refused to institute criminal proceedings reiterating verbatim his reasoning set out in the decision of 1 October 2013. 23. On 15 January, 14 March and 21 May 2014 the deputy head of the district police department ordered a new inquiry noting that the previous inquiry had been incomplete. 24. On 18 January and 18 March 2014 the investigator refused to open a criminal investigation reproducing verbatim the earlier decisions of 1 October 2012 and 26 September 2013. 25. On 21 May 2014 the investigator again refused to open a criminal investigation. In addition to his earlier findings, he studied the applicant’s medical case-file and concluded that it did not contain information accounting for the cause of her medical condition. 26. On 28 February 2015 the district deputy prosecutor quashed the decision of 21 May 2014 and ordered a further inquiry. 27. The case-file materials submitted by the Government contain two decisions dated 6 March 2015. The first decision was taken by the investigator who refused to institute a criminal investigation in the applicant’s case. The second decision was taken by the district deputy prosecutor who ordered a new inquiry. The Government did not inform of the outcome of the proceedings.
| 1 |
test
|
001-180287
|
ENG
|
MDA
|
COMMITTEE
| 2,018 |
CASE OF LISOVAIA v. THE REPUBLIC OF MOLDOVA
| 4 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for home)
|
Ledi Bianku;Stéphanie Mourou-Vikström
|
4. The applicant was born in 1984 and lives in Chisinau. 5. At the material time, the applicant was a student and was undertaking an unpaid internship at a law firm. 6. On 23 October 2008 criminal proceedings were initiated against T., a lawyer with whom the applicant worked, on charges of trading in influence. In particular, T. was accused of receiving 10,500 euros (EUR) from D. to pass on to the judges examining a criminal case against a relative of D.’s in order to obtain his acquittal or a more lenient sentence. The applicant had no procedural standing in those proceedings. 7. On 30 October 2008 the police lodged with an investigating judge a request for a warrant to search the applicant’s apartment. The request was granted; the decision to issue the warrant read as follows: “The criminal investigation against T. was initiated on 23 October 2008 ... In the course of the investigation it has been established that from March until September 2008, T. extorted and received from D. in several instalments the amount of EUR 10,500, [to be given to] the judges who examined D.’s relative’s case, in order to obtain his acquittal or a more lenient sentence. On 24 October 2008 T. was caught in flagrante receiving 3,800 US dollars (USD) from D., allegedly for influencing the prosecutor not to appeal against the [subsequent] judgment [acquitting the accused]. The evidence in the file and the material obtained through the operational investigation allow the well-founded assumption that at [the applicant’s] home, situated at [address], can be found EUR 10,500 received from D. and relevant documents, Decides To order a search of [the applicant’s] residence, situated at [address], with the aim of finding and seizing EUR 10,500 received from D. and documents concerning the criminal case.” 8. On the same day, a prosecutor lodged a request with the Buiucani District Court for a warrant to be issued for the search of the applicant’s apartment. His request took the form of a verbatim copy of the police decision. Also on the same day the Buiucani district investigating judge issued a decision authorising the search. The decision read as follows: “The present criminal proceedings were initiated on 23 October 2008 ... against T. After hearing the prosecutor and examining the material, and taking in consideration the fact that that material had been obtained in [a manner] in compliance with the law, the court finds that the request for the authorisation of the search is well founded and should be upheld. On the basis of Articles 41, 125, 301, 305 and 306 of the Code of Criminal Procedure, the court: ... 1. Grants the prosecutor’s request. 2. Authorises a search of [the applicant’s] residence, situated at [address]. 3. [Declares that] the decision is final.” 9. On 10 December 2008 the police searched the applicant’s apartment in the presence of her elderly mother [but not the applicant]. They did not find anything. 10. On 21 August 2009 the applicant lodged a request for access to the evidence which had been presented to the judge to justify the search. On 3 September 2009 the Buiucani district investigating judge replied that the case file was held at the [premises of] the investigating authority and that access could only be granted pursuant to the law. 11. It appears from the material in the case file that the criminal proceedings against T. ended with the latter’s acquittal.
| 1 |
test
|
001-172100
|
ENG
|
POL
|
CHAMBER
| 2,017 |
CASE OF POROWSKI v. POLAND
| 4 |
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 5-3 - Length of pre-trial detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)
|
András Sajó;Egidijus Kūris;Ganna Yudkivska;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
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5. The applicant was born in 1964 and lives in Otwock. 6. The applicant was arrested on 11 July 2000. 7. On 12 July 2000 the Jarosław District Court (Sąd Rejonowy) remanded him in custody on suspicion that, together with two accomplices, he had attempted to extort money from J.G. and M.G. by depriving the alleged victims of their liberty and threatening to kill them. 8. Subsequently, the applicant’s detention on remand was extended by the Jarosław District Court on 9 October and 29 December 2000 and 3 April, 25 June, 18 September and 29 October 2001. Interlocutory appeals brought by the applicant against those decisions were rejected. The Jarosław District Court justified its decisions to impose and, later, to extend the preventive measure with reference to the strong evidence against the applicant, the severe punishment which was likely to be imposed if he was convicted and the risk that he would abscond or go into hiding if released. In the domestic court’s opinion, the latter risk was real in the light of the fact that in the past, the applicant had rarely lived at his permanent address. 9. On 13 December 2001 the Jarosław District Court convicted the applicant as charged and sentenced him to five years’ imprisonment. The period which he had already spent in detention, namely one year, five months and three days (from 11 July 2000 until 13 December 2001), was deducted from his sentence. 10. On 23 April 2002 the Krosno Regional Court (Sąd Okręgowy) quashed that judgment and remitted the case to the first-instance court. 11. The applicant’s detention was continued by the Krosno Regional Court on 22 March 2002 and the Jarosław District Court on 4 June and 8 October 2002 and 9 January, 3 April, 7 July and 9 October 2003. At this stage of the proceedings the domestic courts referred to the original grounds for the applicant’s detention. They also noted that the trial was pending and that delays had occurred for reasons not attributable to the court. Interlocutory appeals against those decisions were rejected, as were requests for release lodged by the applicant and his lawyer. 12. On 7 November 2003 the Jarosław District Court convicted the applicant as charged and sentenced him to five years’ imprisonment. The time which he had already spent in detention, namely three years, three months and twenty seven days (from 11 July 2000 to 7 November 2003), was deducted from his sentence. 13. On 23 March 2004 the Krosno Regional Court upheld the firstinstance judgment in respect of the applicant. 14. On 9 December 2004 the Supreme Court dismissed the applicant’s cassation appeal. 15. Throughout the entire proceedings the applicant was represented by two lawyers of his choice. 16. The applicant did not lodge any complaint about the length of these proceedings under the Law of 17 June 2004 on complaints of a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”) 17. On 10 November 2000 the Mińsk Mazowiecki District Court remanded the applicant in custody on the grounds that there was a reasonable suspicion that he had committed armed robbery and deprived the victims of their liberty. The court also considered that the measure was justified by the severity of the punishment which was likely to be imposed if he was convicted and the need to ensure the proper conduct of the proceedings. The applicant lodged an interlocutory appeal. On 29 November 2000 the Siedlce Regional Court upheld the detention order. 18. The applicant lodged several applications for release. He claimed that his mother suffered from a “back illness” and required his personal care. All those applications were dismissed, both at first instance and on appeal. 19. On 29 January 2001 the Siedlce Regional Prosecutor (Prokurator Rejonowy) lodged an indictment against the applicant and two co-accused, charging them with armed robbery and false imprisonment. At that stage the prosecutor ordered that nine witnesses be heard. 20. Subsequently, the applicant’s detention on remand was extended by the Mińsk Mazowiecki District Court on 6 February, 11 April, 12 July and 15 October 2001, and on 10 January 2002. Three of these decisions were upheld by the Siedlce Regional Court on 1 March, 29 August and 7 November 2001 respectively. The domestic courts referred to the same grounds as previously, noting that prior to his arrest the applicant had not lived at his permanent address and that his whereabouts were unknown. It was also observed that the trial had still not begun because the applicant had challenged the judges who would be hearing his case. 21. On 14 June 2002 the Mińsk Mazowiecki District Court dismissed a request by the applicant for release. 22. Meanwhile, on 2 April 2002 the applicant’s case was severed from that of his coaccused, to be dealt with in a different trial. The first hearing was scheduled for 18 June 2002 but was ultimately adjourned. The subsequent hearing was likewise adjourned. 23. Subsequently, the Mińsk Mazowiecki District Court further extended the applicant’s detention on 9 April and 12 July 2002. The earlier decision was upheld by the Siedlce Regional Court on 8 May 2002. The courts reiterated the grounds previously given for the applicant’s continued detention, also noting that there was a real risk that he would obstruct the proceedings if released in the light of the fact that many of his alleged accomplices were still at large. 24. On 30 July and 29 August 2002 the trial court held the first two hearings in the case and on 27 August 2002 it ordered that the applicant undergo psychiatric observation. 25. On 6 September 2002 the Mińsk Mazowiecki District Court extended the applicant’s detention on remand. This decision was upheld by the Siedlce Regional Court on 2 October 2002. Both courts referred to the original grounds, also noting that the applicant’s case had not yet reached the trial stage since proceedings against him before a different criminal court were pending at the time and there was a need to obtain an expert report which, in turn, required him to undergo psychiatric observation in a specialist institution. 26. On 22 October 2002 the Siedlce Regional Court rejected an application by the applicant to have his detention on remand replaced with a different preventive measure. 27. On the same date, as the period of the applicant’s detention on remand was approaching two years, the trial court lodged an application with an appellate court under Article 263 § 4 of the Code of Criminal Procedure (Kodeks postępowania karnego hereinafter, “the Code”), seeking to extend the preventive measure for another five months. 28. On 30 October 2002 the Lublin Court of Appeal (Sąd Apelacyjny) declared that it lacked jurisdiction and transferred the applicant’s remand file to the Mińsk Mazowiecki District Court. The appellate court referred to the uniform and well-established line of interpretation given to Article 263 of the Code by the Supreme Court. It reiterated that the statutory time-limit of two years for detention on remand was considered to run only in so far as a person had been effectively deprived of his or her liberty in the particular case in the framework of which the preventive measure had been applied (see paragraphs 73 and 74 below). The appellate court concluded that since the applicant had been deprived of his liberty, either on remand or after conviction, from 12 July 2000 onwards in the first criminal case, the term of his “effective detention on remand” in the second criminal case had not yet begun. 29. On 5 November 2002 the Mińsk Mazowiecki District Court once more extended the applicant’s detention. On 4 December 2002 the Siedlce Regional Court upheld that decision. Both courts held that the three original grounds for the applicant’s detention and the need for him to undergo psychiatric observation were sufficient to extend the preventive measure in question even though the proceedings had not yet reached the trial stage. In addition, the second-instance court addressed the arguments which had been raised in an interlocutory appeal brought by the applicant against the District Court’s decision. To that effect, the Regional Court reiterated the view of the Lublin Court of Appeal that the applicant’s detention on remand was not effective because he had been first deprived of his liberty within the framework of the first criminal case. It also considered that only the most severe preventive measure and not bail, as the applicant had suggested, could ensure the proper conduct of the proceedings. 30. On 17 December 2002 the Mińsk Mazowiecki District Court stayed the proceedings pending the enforcement of the court’s decision of 27 August 2002 ordering the applicant to undergo psychiatric observation (see paragraph 24 above). On 5 February 2003 the Siedlce Regional Court dismissed an interlocutory appeal brought by him against this decision. It was observed that he could not at that stage be placed under psychiatric observation because his presence was necessary in the court before which his other criminal case was pending and because that court had not authorised the measure. 31. In the meantime, on 28 January 2003 the Mińsk Mazowiecki District Court once again extended the applicant’s detention on remand, referring to the risk that he might attempt to obstruct the proceedings if released. 32. On 27 February 2003 the Siedlce Regional Court quashed that decision and ordered the applicant’s release from custody. The court found that the grounds for his detention were no longer valid in the light of the fact that the proceedings had been stayed. 33. The Government submitted that on 3 March 2003 the applicant had actually been released to his home. He on the other hand maintained that he had remained in custody as he had concurrently been in detention on remand in connection with his first criminal trial, pending at the time before the Jarosław District Court (see paragraphs 6-13 above). 34. On 12 November 2003 the Mińsk Mazowiecki District Court barred the applicant from leaving the territory of Poland. 35. On 11 December 2003 the Jarosław District Court ordered that the applicant undergo psychiatric observation in the psychiatric wing of the Warszawa-Mokotów Remand Centre. 36. On 30 December 2003 the Mińsk Mazowiecki District Court resumed the proceedings in the applicant’s case in view of that decision and the fact that the psychiatric observation could be scheduled to start in March 2004. On the same date the court again remanded him in custody on the grounds that the evidence showed a significant probability that he had committed armed robbery. It also had regard to the severity of the punishment that could be expected and the need to ensure the proper conduct of the proceedings. 37. On 28 January 2004 the Siedlce Regional Court dismissed an interlocutory appeal brought by the applicant against this decision. The appellate court acknowledged that the applicant had not to date attempted to obstruct the proper course of the proceedings. Nevertheless, the likelihood that a severe punishment would be imposed if he were convicted was considered to be sufficient reason for his continued detention. 38. On 6 February 2004 the applicant applied to the Mińsk Mazowiecki District Court for the preventive measure to be changed. On 24 February 2004 the court dismissed his request. 39. On 23 March 2004 the Mińsk Mazowiecki District Court further extended the applicant’s detention on remand. The court gave the argument that strong evidence had been obtained against him, that it was likely that a severe sentence would be imposed in the case, and that, if released, he would attempt to persuade witnesses to give false evidence or would, by other unlawful means, try to obstruct the proceedings, especially in the light of the fact that the psychiatric observation was underway. 40. Appealing against the latter decision, the applicant’s lawyer argued that his client had already been detained for almost four years and that the District Court did not have jurisdiction to decide on the preventive measure. Moreover, it was argued that since the applicant had never attempted to obstruct the proceedings, there was no risk that he would try to do so in the current stage of the case. 41. On 28 April 2004 the Siedlce Regional Court dismissed that appeal. It was observed that the actual period of the applicant’s detention on remand in the case in question had not reached two years because he had been concurrently deprived of his liberty in the framework of the first set of criminal proceedings. As to the grounds for extending his detention on remand, the appellate court held that, even though he had not attempted to obstruct the proper course of the proceedings, the likelihood that a severe punishment would be imposed if he were to be convicted was sufficient reason to uphold the preventive measure in question. 42. On 24 June 2004 the Mińsk Mazowiecki District Court again decided to extend the applicant’s detention on remand in view of the reasonable suspicion that he had committed armed robbery and the severity of the punishment that could be expected. This decision was upheld on 15 July 2004 by the Siedlce Regional Court. 43. On 23 August 2004 the Mińsk Mazowiecki District Court rejected a request by the applicant for release, relying on the same grounds as in the decision described above. 44. Subsequently, the applicant’s detention on remand was extended by the Mińsk Mazowiecki District Court on 9 September and 22 December 2004 and 24 March and 23 June 2005. The decisions were upheld by the Siedlce Regional Court on 29 September 2004, on an unspecified date and on 13 April and 28 July 2005 respectively. All the decisions in question were based on the grounds that there was strong evidence against the applicant, that a severe punishment would be imposed if he were convicted and, since the court proceedings were only at the initial stage, that if released, he would attempt to persuade witnesses to give false evidence or, by other unlawful means, obstruct the proper course of the proceedings. It was also stressed in the earlier decisions that the trial court had not yet started its examination of the applicant’s case on the merits. 45. On 1 September 2005 the Mińsk Mazowiecki District Court convicted the applicant as charged and sentenced him to six years’ imprisonment. The period he had already spent in detention on remand, namely one month and twenty-one days (from 11 July until 1 September 2005), was deducted from his sentence. The remainder of his incarceration was considered to have comprised the prison sentence which had been imposed by the Jarosław District Court in the separate criminal case (see paragraph 12 above). It appears that the first-instance court held fourteen and adjourned five hearings. It decided applications by the applicant challenging the judges, opposing the psychiatric observation and requesting a fresh examination of the case. 46. On 10 February 2006 the Siedlce Regional Court quashed the judgment of 1 September 2005 (see paragraph 45 above) and remitted the case to the first-instance court, ordering it to gather additional evidence. 47. On 7 March 2006 the Mińsk Mazowiecki District Court extended the applicant’s detention. That decision was upheld on 29 March 2006. The domestic courts considered that the actual period of detention on remand in the framework of the second case had only started running on 11 July 2005, when he was no longer deprived of his liberty in connection with the first criminal case. The courts also referred to the two original grounds for the applicant’s continued detention, namely a reasonable suspicion that he had committed armed robbery and the severity of the punishment that could be expected. In the courts’ view, the latter element in turn created a presumption that the applicant would attempt to obstruct the proper conduct of the proceedings if released. 48. On 29 March 2006 the Siedlce Regional Court fully adhered to the reasoning of the first-instance court and upheld the above-mentioned decision. 49. On 11 April 2006 the case was transferred to the Siedlce Regional Court as the competent court because, in the meantime, the charges against the applicant had been modified. 50. Pending trial the applicant’s detention was extended by the Siedlce Regional Court on 31 May and 21 June 2006, on an unspecified date and on 13 November 2006 and 19 January 2007. The decisions were upheld by the Lublin Court of Appeal. The domestic courts reiterated the original grounds for the applicant’s detention on remand and stressed that the preventive measure in question had not lasted more than two years, regard being had to the fact that from 7 November 2003 to 11 July 2005 he had been serving a prison sentence imposed in the first set of criminal proceedings. 51. The first hearing took place on 29 June 2006. 52. On 6 July 2007 the Siedlce Regional Court convicted the applicant as charged and sentenced him to six years’ imprisonment. It appears that the court held seven hearings in the case. The period the applicant had already spent in detention on remand, namely one year, eleven months and twenty five days (from 11 July 2005 until 6 July 2007) was deducted from his sentence. 53. On 9 April 2008 the Lublin Court of Appeal quashed that judgment, lifted the preventive measure and remitted the case to the lower courts. The following day the applicant was released from the remand centre. He has remained at liberty ever since. 54. On 23 October 2009 the Siedlce Regional Court convicted the applicant on a number of charges and sentenced him to six years’ imprisonment. It held fourteen hearings in the case. Two years and nine months of the applicant’s detention on remand (from 11 July 2005 to 10 April 2008) were deducted from his sentence. It appears that he was not ordered to serve the remainder of his sentence. 55. On 12 February 2010 the applicant appealed. 56. On an unspecified date before March 2011 the Lublin Court of Appeal upheld the first-instance judgment. 57. The applicant did not wish to take his case to the Supreme Court, believing that a cassation appeal would not have any prospects of success. 58. He did not lodge a complaint about the length of the second set of criminal proceedings under the 2004 Act. 59. On 29 November 2006 the applicant made a constitutional complaint (skarga konstytucyjna) under Article 191, read in conjunction with Article 79 of the Constitution (see paragraph 86 below), asking for Article 263 §§ 3 and 4 of the Code (see paragraph 73 below) to be declared unconstitutional (SK 39/07). He alleged that the provision infringed, inter alia, the right to personal inviolability and security under Article 41 § 1 of the Constitution (see paragraph 71 below). On 30 January 2007 the applicant finalised his complaint. The applicant challenged two aspects of Article 263 of the Code of Criminal Procedure. 60. Firstly, he alleged that Article 263 §§ 3 and 4 were unconstitutional in so far as, under the legal principle (zasada prawna) of the Supreme Court (see paragraph 74 below), they concerned only effective detention on remand, that is to say only the actual period of deprivation of liberty on the basis of a detention decision issued in a particular case because they denied a detainee sufficient protection of his liberty if he had earlier been convicted or otherwise deprived of his liberty on the basis of decisions issued in another set of proceedings. 61. Secondly, the applicant challenged Article 263 § 3 in so far as it defined a maximum statutory period for the length of detention on remand only until the delivery of a first judgment by the trial court. Consequently, people such as him who remained in detention while their criminal proceedings were pending de novo after the quashing of the first judgment of the first-instance trial court, were not protected against unreasonably lengthy detention on remand. Article 263 § 3 of the Code was silent in that respect and because of that, the authorities could extend the preventive measure for an indefinite period following the quashing of the first judgment of a trial court. 62. On 15 January 2008 the Ombudsman joined the proceedings, asking that Article 263 § 3 of the Code be declared unconstitutional in so far as it left a legal loophole which was filled in by an erroneously developed wellestablished court practice not to include in the calculation of the statutory two-year period of detention on remand (prior to the first judgment of the first-instance court) periods of the detainee’s concurrent deprivation of liberty on the basis of a criminal sentence. 63. On 10 March 2009 the Constitutional Court discontinued the application under section 39 of the Constitutional Court Act of 1 August 1997, which provided for such a possibility in the event a ruling was considered to be redundant (zbędne). 64. It was observed that, despite the obvious differences in scope, the essence of the first part of the applicant’s complaint, concerning Article 263 §§ 3 and 4 of the Code (see paragraph 60 above), had already been examined on the merits by the Constitutional Court in case no. SK 17/07. The provision had been declared unconstitutional in so far as it was interpreted to the effect that the statutory maximum period of two years allowed for a person’s detention on remand prior to the first judgment of the first-instance court had not comprised the term of the prison sentence the detainee was serving in another case, concurrently to his detention on remand, thus allowing for an extension of the preventive measure beyond two years by a first-instance court on general grounds (see paragraphs 7781 below). 65. In connection with the second part of the complaint (see paragraph 61 above), the Constitutional Court held that the applicant did not have the standing to challenge Article 263 § 3 of the Code because this provision had not been applicable to his detention in the relevant period. The preventive measure in question had been extended during the proceedings which had been pending before the first-instance court de novo, after the original judgment had been quashed by the appellate court. In these circumstances, the legal basis for extending the applicant’s detention was Article 263 § 7 of the Code (see paragraph 74 below). 66. On 8 June 2001 the applicant informed the Przemyśl prosecutor’s office about an offence allegedly committed by staff of Przemyśl Prison. He claimed that they had been selling alcohol, cigarettes and drugs to prisoners. On 29 November 2002 the Przemyśl prosecutor’s office discontinued the criminal investigation against the alleged culprits. This decision was upheld by the Przemyśl District Court on 27 February 2003. 67. When, on 26 November 2001, the applicant lodged his application with the Court he had been detained on remand in relation to the first and second sets of criminal proceedings against him. On 31 July and 30 November 2001 and on 10 and 14 March 2003 he sent letters to his defence lawyer, W.J. The envelopes bear the stamp “Jarosław District Court” and a handwritten note stating “censored on...” (ocenzurowano dn.). 68. On 18 July 2003 the Lubaczów District Prosecutor discontinued criminal proceedings against several judges of the Jarosław District Court who, in the applicant’s view, had monitored his correspondence with his lawyer. The court held that none of the individuals concerned had opened and read the applicant’s correspondence. This decision was upheld by the Lubaczów District Court on 25 November 2003. The court found that the applicant’s correspondence had not been read and the words “censored” had been automatically stamped on the applicant’s letters. 69. On 4 December 2001, the Registry of the Court received its first letter from the applicant, dated 26 November 2001. The envelope bears the stamp “Jarosław District Court” and a handwritten note stating “Censored on 30 November 2001” (Cenzurowano dn. 30 XI 2000). 70. On 8 August 2002 the Registry of the Court received another letter from the applicant, dated 22 July 2002. It was delivered in an envelope bearing the stamp “Jarosław District Court” and a handwritten note stating “Censored on 26 July 2002” (Cenzurowano dn. 26 VII 2002).
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test
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001-170860
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ENG
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POL
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CHAMBER
| 2,017 |
CASE OF WDOWIAK v. POLAND
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No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
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András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
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5. The applicant was born in 1975 and lives in Tryszczyn. 6. On 2 December 2002 the applicant’s son J. was born. At that time the applicant lived with the boy’s mother, M.K., in a flat belonging to her parents. In 2003 the applicant moved out after a disagreement with M.K.’s father. 7. In 2005 the applicant filed a court complaint that M.K. was hindering his contact with his son. 8. On 2 December 2005 the parties reached a friendly settlement before the District Court detailing when the applicant was able to visit the child. It was agreed that the applicant could see J. on two Saturdays and two Sundays each month from 10 a.m. to 6 p.m., as long as the meetings had been arranged with M.K. the preceding week. The applicant could also take J. on holiday for two weeks during the summer. It was arranged that he would pick the child up from M.K.’s place of residence and take him back. 9. In 2006 the applicant’s meetings with his son were on some occasions made impossible by the mother, but most of them took place. A few of the visits were cancelled because the child was ill. 10. On 7 June 2006 M.K. applied to change the applicant’s access rights. M.K. wanted to reduce the amount of time the applicant could spend with J. She also indicated her intention to move to Germany with her son for financial reasons. 11. On 6 September 2006 the applicant applied to increase his access rights. He stated that M.K. had been interfering with his contact visits. The applicant asked the court to order that he be able to see his son twice a month from 10 a.m. on Friday to 7 p.m. on Sunday; one day at Christmas or Easter from 10 a.m. to 10 a.m. the next day; and three weeks in the summer holidays and one week in the winter holidays. 12. At a hearing on 17 January 2007 M.K. withdrew her application and the Bydgoszcz District Court discontinued the proceedings. The applicant appealed, complaining that his application had still to be examined. 13. On 29 March 2007 the Bydgoszcz Regional Court quashed the Bydgoszcz District Court’s decision. The court considered that it had been a mistake to assume that the applicant had consented to the discontinuation of his application just because M.K. had chosen to withdraw hers. It was also established that the applicant’s access rights were not being respected at the time because M.K. had moved to Germany with the child. 14. On 16 January 2007 M.K. moved to Germany with the child without the applicant’s consent. The parties disagreed on whether or not M.K. had informed the applicant of their address in Germany (the applicant submitted that she had not). 15. The applicant initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”). On 23 November 2007 the Celle District Court in Germany ordered that the child be returned to Poland to the father or a guardian because under the Hague Convention the mother had abducted the child. The court also noted that the applicant and M.K. had joint custody of J. under Polish law. 16. On 20 December 2007 the High Court in Celle dismissed an appeal by M.K. and ordered the return of the child to Poland. However, the court agreed that the child need not be handed over to the applicant. It stated that it would be enough to move back to Poland by the required date to comply with the court’s order. 17. On 14 January 2008 the German Central Agency communicated the above decisions to the Polish Ministry of Justice. The applicant was informed on 15 January 2008. The mother and the child returned to Poland on 6 January 2008. 18. In January 2007 the applicant lodged an application for sole custody of J. and to establish J.’s place of residence with him. 19. On 23 July 2007 M.K. lodged an application to grant her sole custody of the child and to establish J.’s place of residence with her. 20. The proceedings were stayed between September 2007 and January 2008 owing to proceedings pending under the Hague Convention. 21. On 1 April 2008 the Bydgoszcz District Court approved a settlement between the parties regarding the applicant’s access rights. It was agreed that the applicant would be informed whenever J.’s place of residence changed. It was also agreed that he would be able to see J. every other Saturday and Sunday of the month from 9.30 a.m. to 6.30 p.m.; the second day of Christmas and Easter holidays at the same times; every 1 June from 4 p.m. to 7 p.m.; and for two weeks in the summer holidays from 1 to 15 July. The applicant was also under an obligation to allow M.K. to contact J. when the child was under his care and agreed that he would not see the child on 19 and 20 July 2008 as well as on 18 and 19 July 2009. 22. According to the applicant’s own statements before the domestic authorities contact took place according to the agreement. 23. The agreement was further modified by the parties on 29 September 2009 by extending the amount of time the applicant could spend with his child. It was agreed that the applicant would spend two weekends per month from Friday to Sunday with his son, as well as three weeks in the summer holidays and one week in the winter holidays. The applicant was also to have telephone contact with the child. 24. During the proceedings, on 11 March 2010, the Bydgoszcz District Court ordered the parties to have counselling. The applicant and M.K. began to go to counselling but M.K. pulled out. The court also ordered mediation to resolve their issues. The court ordered the preparation of several expert opinions. In particular the Regional Family Consultation Centre (Rodzinny Ośrodek DiagnostycznoKonsultacyjny -“the RODK”) submitted at least two reports by experts between 2008 and the beginning of 2010. The applicant contested the conclusions of the opinions. 25. On 19 March 2011 the Bydgoszcz District Court dismissed the applicant’s application to order that J.’s place of residence be with him, leaving the child in M.K.’s care. The court also dismissed M.K.’s application to decrease the applicant’s visiting hours. The applicant and M.K. retained joint custody of J. The court established that in the period up to 2008 the bond between the applicant and the child had weakened considerably owing to a lack of contact between them. However, their relations had significantly improved because after the settlement of 1 April 2008 contact between the applicant and his son had taken place without disturbance. Afterwards, at the applicant’s request, the contact arrangements had been modified on 29 September 2009. The court noted that the parties had had strong disagreements, had stopped talking to each other and should both be held responsible for the situation. According to the experts, the parents were not able to decide together on important aspects of the boy’s life. Nevertheless, the court found that both parents loved their child very much and wanted the best for him. The court found no reasons to limit either parent’s parental rights. 26. The parties appealed. 27. On 3 November 2011 the Bydgoszcz Regional Court partly granted the appeal lodged by M.K. and dismissed the applicant’s appeal. It found it necessary to limit the applicant’s parental rights only to the most important decisions on J.’s health, education, and upbringing. The court considered that the conflict between the parents meant it would not be possible for them to continue to carry out their parental responsibilities jointly. 28. In the meantime, on 11 August 2010, the Bydgoszcz District Court increased the amount of child support payable by the applicant to M.K. from 400 Polish zlotys (PLN) to PLN 500 per month. 29. On 19 May 2012 the applicant asked the court to further modify the contact arrangements. He submitted that his relationship with his son had got considerably worse since February 2012 and blamed the mother’s behaviour. The applicant asked for visits to take place in the presence of a guardian. The applicant also sought enforcement of the contact arrangements ordered in the agreement of 29 September 2009 (see paragraph 46 below). 30. On 20 December 2012 the court commissioned another report by experts from the RODK. The experts met the applicant, M.K. and J. 31. On 15 February 2013 M.K. applied to annul the settlement of 29 September 2009. She stated that J. refused to see his father and, while waiting for the experts’ report, it would be in his best interests to no longer see his father. 32. On 19 February 2013 the Bydgoszcz District Court applied an interim measure to limit the applicant’s access rights and ordering that both the applicant and M.K. have counselling. The applicant was allowed to see his son at McDonald’s or another public place for short visits in the presence of his mother or maternal grandparents. The applicant appealed. 33. On 8 April 2013 J. was questioned in the presence of a psychologist. The boy, eleven years old at the time, stated that he no longer wished to see his father. He stated that the applicant had paid no attention to him during visits and that he had been allowed to play computer games all day. 34. On 28 May 2013 the Bydgoszcz Regional Court quashed the interim order of 19 February 2013. The court ordered the parties to attend counselling and to submit attendance certificates to the court every two months. The court further emphasised the need to modify the way the father and the child communicated without suspending contact between them, which would lead to breaking the bond between them. 35. On 13 June 2013 M.K. applied to change the access rights of the applicant agreed in the settlement of 29 September 2009. M.K. asked the court to order that contact should take place every other weekend and be in her or her parents’ presence because J. had not seen the applicant for a long time and would feel unsafe with him. She also requested an interim measure from the court. 36. On 7 June 2013 the Bydgoszcz District Court gave an interim measure. It stated that the applicant would have the right to see J. every other weekend for two hours on Saturday and two hours on Sunday in a public place and in the presence of M.K. or her parents. Upon appeal by the applicant the decision was amended by the Bydgoszcz Regional Court on 9 September 2013 by extending the length of the meeting to three hours. The visits were to take place in a neutral place, in the presence of M.K. or her parents, and with a guardian for the first three months. 37. The applicant met his son in November 2013 in a McDonald’s restaurant. The boy was accompanied by his mother and was aggressive and hostile to the applicant. 38. On 3 March 2014 the RODK issued its report, recommending that the applicant and M.K. have counselling in order to learn to cooperate when making decisions about their son. The RODK also proposed that J. should consult a psychologist. It further observed that relations between the applicant and his son were strained because J. had a negative attitude towards the applicant and no longer liked to have contact with him. That attitude was the result of a negative image of the applicant that had been created under the influence of the mother. 39. At a hearing on 24 June 2014 the applicant declared that he was no longer attending the meetings because of his son’s disruptive and aggressive behaviour. The last meeting took place in November 2013. 40. On 8 September 2014 the RODK issued another report which stated that the boy had been loyal to his mother and had turned away from the applicant. 41. On 18 February 2015, after ineffective mediation, the court modified the contact arrangements by ordering longer meetings with the applicant. The court again ordered the parties to have counselling so they could learn how to reach agreement with each other. The court also noted that the applicant had the possibility to apply for imposing a fine on M.K. for noncompliance with court orders. On 15 May 2015 the applicant appealed. 42. The proceedings are still pending. 43. On 31 January 2007 the applicant complained that the arrangements for meeting his child, as established by the agreement of 2 December 2005, were not being enforced. After the child was removed to Germany the applicant initiated proceedings under the Hague Convention (see paragraphs 14-17 above). 44. On 1 April 2008 the court ordered M.K. to pay a fine if a contact meeting scheduled for 5 April 2008 did not take place. That and subsequent visits took place in accordance with the settlement of 1 April 2008. 45. On 27 April 2012 the applicant brought a claim to enforce his access rights under Article 598(16) § 1 and § 2 of the Polish Code of Civil Procedure (Kodeks Postępowania Cywilnego – “the CCP”). He submitted that his relations with his son had worsened substantially since February 2012 for which he blamed the mother’s behaviour. It appears that he withdrew the claim at an unspecified later date. 46. On 16 May 2012 the applicant requested the assistance of a court guardian during his meetings with the child (see paragraph 29 above). On the same day the applicant brought a claim to enforce the arrangements for meeting his child, as determined by the settlement of 29 September 2009, by imposing a fine on the child’s mother. The applicant submitted that M.K. had been making it impossible for him to call his son although that had been provided for by the settlement. Moreover, after November 2011, when his parental rights had been limited, M.K. had cancelled all his subsequent meetings with his son. Since March 2012 M.K. had started claiming that their child refused to meet him. 47. By a decision issued on 19 February 2013 the Bydgoszcz District Court ordered that M.K. pay the applicant a penalty each time he was denied his rights to have access to J. as set down by the settlement of 29 September 2009. She was ordered to pay PLN 200 each time she interfered with the applicant’s right to see J. and PLN 50 every time she did not allow them to converse by telephone on Wednesdays as scheduled. The court noted that there was no dispute about the fact that M.K. had prevented the applicant from seeing his son for about one year. M.K. lodged an appeal against the decision but it was dismissed on 26 June 2013 by the Bydgoszcz Regional Court. It appears that the applicant never applied to enforce that decision or to impose penalty payments on M.K.
| 0 |
test
|
001-147926
|
ENG
|
CHE
|
ADMISSIBILITY
| 2,014 |
STEINER AND STEINER-FASSLER v. SWITZERLAND
| 4 |
Inadmissible
|
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens
|
1. The case originated in an application (no. 18600/13) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Swiss nationals, Mr Edwin Steiner and Mrs Ottilia SteinerFässler (“the applicants”), on 11 March 2013. 2. The applicants were represented by Mr L. Stamm, a lawyer practising in Baden. The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice. 3. The applicants alleged a violation of Article 6 as documents relating to the construction of both a paved sidewalk and a gravel walk along the river bank adjacent to their property in 1984 were not made accessible to them. Furthermore, they complained that the new route of the path across their property was contrary to Article 8. 4. On 29 May 2013 the application was communicated to the Government. 5. The applicants are Swiss nationals, who were born in 1938 and 1944 respectively, and live in Alpthal in the canton of Schwyz. 6 7. In the canton of Schwyz, the Way of St James (Jakobsweg), a network of medieval pilgrimage routes leading through several European countries to Santiago de Compostela in the northwest of Spain, runs from Einsiedeln via Alpthal to the city of Schwyz. 8. In the past years, the approximately 1.5 kilometre long route between Chriegmatt and Gämschtobelbach ran along the main road on a paved sidewalk on the left side of the river Alp. 9. In July 1984, heavy storms caused severe damages in the region. The banks of the river Alp had to be lined and the surroundings to be reconstructed. Considered to be urgency measures these works were done without any formal authorisation procedure. 10. In 2003, the authorities of the canton of Schwyz intimated their intention to move this route of the Way of St James to the right side of the river Alp, on a forest path intersecting the applicants’ property for 7 metres (on the south-western side) and 17 metres (on the north-western part) respectively. Moreover, the forest road leads through a low-level moor of national importance (inventory no. 3154), which is constitutionally protected (see paragraph 17 below). 11. On 1 July 2006, the applicants, their children, representatives of the district council and the district administration, as well as the director of the cantonal office for forests, hunting and fishing, inspected the site. The applicants declared that they would not tolerate the new path through their property, owing to several unfriendly confrontations with hikers and the littering by hikers and their dogs. On 3 July 2006, the director of the cantonal office for forests, hunting and fishing, who was hierarchically subordinate to the department of economy of the canton of Schwyz, signed a memorandum (Aktennotiz). This memorandum stated that the relevant legislation would allow the compulsory acquisition of the easement (Wegrecht), if it could not be acquired on a voluntary basis by the canton; however, taking into account the applicants’ health and well-being, renunciation was declared and it was decided not to enforce the easement (“Auf die rechtliche Durchsetzung des Wegrechts [...] wird verzichtet.”). In return, the applicants declared that they would tolerate “until further notice” the Iron Bike Race, which takes place once a year, through their property. 12. By the beginning of 2009, the department of environment of the canton of Schwyz decided to transfer the Way of St James to the right side of the river Alp. The explanatory report of the land use zoning plan, published for public consultation between 29 October and 29 November 2010, stated that it was difficult to understand why the pilgrims and hikers should walk on a not very appealing paved sidewalk when there was a shady and idyllic forest gravel walk on the other side of the river. The applicants’ objection was dismissed by the cantonal department of environment on 19 January 2011. The department explained that throughout recent years, the municipality of Alpthal, the district of Schwyz and the Swiss Association for Hiking Trails had tried in vain to find an adequate solution with the Steiner-Fässler family. Recently, the applicants had explicitly refused further talks with regard to a friendly settlement. The decision held, inter alia, that the two portions of land where the path intersected the property of the applicants were classified as forest areas; these are, by law, publicly accessible (see paragraph 18 below). Furthermore, the memorandum of 3 July 2006 had no binding force for the department of environment: the assurance had been issued by an authority which did not have competence and, after the assurance, the applicants had not made any irreversible disposition in respect to their property. Therefore, the principle of good faith had not been violated (see paragraph 16 below). 13. On 31 May 2011, the council of the canton of Schwyz (the cantonal government) dismissed the applicants’ appeal. On reviewing the facts, the council observed that the applicants’ house was 70 metres away from the gravel walk and only two small portions of the land of the applicants were intersected by the path. Therefore, the council found the interference in the applicants’ property to be marginal and tolerable. It admitted that the memorandum of 3 July 2006 might constitute a basis for legitimate expectations. However, the council added that owing to the preponderant public interest in a “safe and appealing” Way of St James, the legitimate expectations of the applicants were not protected. 14. On 21 September 2011, the administrative court of the canton of Schwyz dismissed the applicants’ appeal, basing its decision on the same grounds as the administrative authority. The applicants’ request to have access to, inter alia, the construction permit of 1984 demonstrating that the original Way of St James had historically always run on the left side of the river Alp and that the forest path on the right side of the river was constructed in 1984 was not granted. The administrative court explained that owing to severe storms in 1984 the banks of the river Alp had had to be lined. In order to find out the exact historical route of the Way of St James, the court made several inquiries. On 10 August 2011, it asked the department of environment of the canton of Schwyz for further information. The department, however, was not able to clarify the situation. The department submitted that the relocation of the path on the sidewalk was being done without any formal procedure. According to a letter of the office for cultural landscapes of 21 May 2005, it could be presumed that the pilgrims used to walk on the right side of the river Alp (i.e. on the forest path). Based on that evidence, the court observed that the situation remained unclear. It further noted that the severe storms in 1984 had required a swift reconstruction of the affected area, including the lining of the river banks. In the present case, the court held that the exact historical route of the Way of St James was not decisive since, after the storms, no historical substance was left and the path could be relocated to the other side of the river Alp without any loss in quality. The court concluded that after all the judicial fact-finding it had undertaken the request of the applicants was not pertinent and had therefore to be refused. 15. By a judgment of 22 August 2012, notified to the parties on 11 September 2012, the Federal Supreme Court dismissed the applicants’ appeal. The request of the applicants to receive the construction permit of 1984 was not granted for lack of pertinence to the case. Furthermore, the Federal Supreme Court found that, according to the Federal Hiking Trail Act, historical trails are only to be included in the network of hiking trails if it is possible to do so (“nach Möglichkeit”; see paragraph 19 below). With regard to the memorandum of 3 July 2006, the court held that regardless of whether the applicants should have recognised the lack of competence of the director of the cantonal office for forests, hunting and fishing to issue an assurance, the agreement between the applicants and the authorities could be freely revoked (for example, the memorandum explicitly set out that the applicants were willing to tolerate “until further notice” the Iron Bike Race through their property). Furthermore, the Federal Supreme Court held that the applicants had not suffered any disadvantage from relying upon the memorandum. 16. Article 9 of the Federal Constitution of the Swiss Confederation of 18 April 1999 (Classified Compilation of Federal Laws no. 101) protects the individual against arbitrary conduct and contains the principle of good faith. It reads: “Everyone has the right to be treated by the state authorities in good faith (...).” According to the case law of the Federal Supreme Court (see, inter alia, the leading case 129 I 161, 170 [X. v. City of Chur]), Article 9 of the Federal Constitution confers on every person the right to rely in good faith on assurances issued by authorities, if four conditions are met: (A) a basis for good faith (Vertrauensgrundlage), i.e. a conduct of the administration (for example an assurance) raising a certain expectation in the individual; (B) a legitimate expectation (berechtigtes Vertrauen), i.e. that the person who claims a right from the protection of good faith was entitled to trust on that basis, whereby the assurance of the authority must not be abstract, but related to a given issue; (C) a disposition made in good faith (Vertrauensbetätigung), i.e. that the concerned person has made, based on the conduct of the administration, a disadvantageous disposition, which cannot be undone; and (D) the absence of preponderant public interests. 17. Article 78(5) of the Federal Constitution reads as follows: “Moors and wetlands of special beauty and national importance shall be preserved. No constructions may be erected on them and no changes may be made to the land, except for the construction of facilities that serve the protection of the moors or wetlands or their continued use for agricultural purposes.” 18. Article 699 of the Swiss Civil Code of 10 December 1907 (Classified Compilation of Federal Laws no. 210) reads as follows: “1 Any person has the right to enter woodlands and meadows and to gather wild berries, funghi and the like to the extent permitted by local custom except where the competent authority enacts specific limited prohibitions in the interests of conservation. 2 Cantons may enact more detailed regulations on access to land owned by others for the purposes of hunting and fishing.” 19. Articles 3 and 7 of the Federal Hiking Trails Act of 4 October 1985 (Classified Compilation of Federal Laws no. 704) stipulate: 1 Hiking trails shall essentially serve recreational purposes and shall generally lie outside of settlement areas. 2 Hiking trails shall be conveniently connected between each other. Other paths, parts of sidewalks and less frequented roads may serve as coupling links. Historical trails are if possible to be included [into the network of hiking trails]. 3 The network of hiking trails shall especially encompass areas suitable for recreation, quaint landscapes (scenic views, river borders etc.), cultural attractions, public transport stops as well as touristic facilities.” 1 (...) 2 Hiking trails are to be replaced in particular: a.-c. (...) d. if their pavement is – on longer distances – unsuitable for pedestrians. (...)” 20. Article 6 of the Federal Hiking Trails Ordinance of 26 November 1986 (Classified Compilation of Federal Laws no. 704.1) defines which pavements are not suitable for hiking trails: “Unsuitable in the sense of Article 7(2)d of the Federal Hiking Trail Act are namely all pavements consisting of bitumen, tar or concrete.” 21. Article 13(3) of the Ordinance of the Canton of Schwyz on the Federal Hiking Trails Act of 18 May 2004 (Classified Compilation of the Laws of the Canton of Schwyz no. 443.210) reads as follows: “Rights can be expropriated according to the cantonal expropriation provisions if they cannot be acquired free-hand.”
| 0 |
test
|
001-174217
|
ENG
|
MLT
|
ADMISSIBILITY
| 2,017 |
MAGRI v. MALTA
| 4 |
Inadmissible
|
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
1. The applicants, Mr Paul Magri and Ms Jane Magri, are Maltese nationals who were born in 1950 and 1953 respectively and live in Qormi. They were represented before the Court by Dr J. Brincat, a lawyer practising in Marsa. 3. The applicants owned a piece of land in Qormi, Malta, consisting of a rural building and an adjoining piece of land. No building permit existed at the relevant time in regard to this land. 4. In 1994 or thereabouts works were being carried out in the valley situated below the applicants’ land. At the same time part of the applicants’ land was being used as a road in order to provide temporary access, for large vehicles and machinery, to the valley where the works were being carried out. At the time the applicants tolerated this situation. 5. In 2000 the road was tarmacked by the authorities. It appeared that the Qormi Local Council (hereinafter “the Local Council”) considered that this temporary access road, as well as an adjoining piece of land (also owned by the applicants, which had been used by the Local Council to build a football ground in 2001 or thereabouts, despite a lack of authorisation), were government property. 6. At the time the applicants permitted the use of their land by third parties, and raised no objections to the Local Council’s actions, because they had no pressing need of the property. 7. In 2007 the Local Council claimed that the land (both the road and the land used for the football ground) was public property. 8. In 2007 the applicants instituted civil proceedings (before the Civil Court (First Hall) in its ordinary jurisdiction) for eviction, on the grounds that the Local Council was occupying the part of the land used as a football ground without title. Employees from the then Department of Land testified that the land in question had never been public property and had never been the subject of a declaration of expropriation in the public interest. 9. During those proceedings a constitutional complaint was also raised. 10. A decision in the case appears to have been delivered on 30 September 2014. The applicants made no reference to the outcome of this case in their application. 11. On 29 July 2008 the applicants built walls around the land owned by them, with the result that access to the road was no longer possible. On 26 September 2008 the Local Council instituted civil proceedings against the applicants, arguing that they were blocking the road, that there had been spoliation of the road, and that they were preventing the Local Council from exercising its duty to administer and maintain the road. 12. During the proceedings, although the applicants’ legal counsel appeared at the relevant hearing and made submissions, the applicants themselves failed to participate in the proceedings. 13. By a decision of 25 October 2010 the Civil Court (First Hall), in its ordinary civil jurisdiction, found against the applicants. The court noted their absence and the lack of any evidence put forward by them, despite the repeated attempts of their legal counsel. Moreover, the case being an actio spolii – which had to limit itself to the question of possession and not to the actual ownership of the land – the court found that the plaintiffs (the Local Council) had satisfied the three conditions for the success of such an action by proving, inter alia, that they had possession of the land in question at the time the walls were built. 14. The applicants appealed that decision. 15. On 24 June 2011 the Court of Appeal confirmed the first-instance judgment, to the effect that the Local Council had possession of the land at issue, since it was the Local Council which maintained the road and traffic regularly used it. 16. Pending the conclusion of the above proceedings, in 2008 the applicants submitted an application (no. 05787/08) to the Malta Environment and Planning Authority (hereinafter “the MEPA”) for a permit to develop their land (including the land at issue). They wished to develop it into a single-storey gymnasium/fitness centre. 17. The Local Council objected on several grounds, including the fact that the proposed development was located on a public road used by both pedestrians and vehicles. 18. In a report drawn up by a MEPA case officer, it was proposed to reject the objections raised by the Local Council. He considered the development acceptable and suggested that the necessary building permit be issued. 19. On an unspecified date the Planning Directorate recommended that the permit be granted. 20. The MEPA board considered that the applicants’ pending application depended on the outcome of the Local Council’s Planning Control (PC) application (see below), therefore it chose to postpone its final assessment until the outcome of that application. 21. Following the outcome of the PC application (see below), on an unspecified date the Planning Directorate changed its position and recommended that the application be refused, on the grounds that the proposed development would encroach beyond the proposed official building alignment as set out by the MEPA’s Land Surveyor. 22. The applicants filed an appeal with the Revision Tribunal. A decision in the appeal is still pending. The applicants allege that the Revision Tribunal is awaiting the outcome of the application before this Court. 23. On 2 March 2011 the Local Council submitted a PC application to the MEPA, requesting that the existing road be formalised and thus considered a schemed road. 24. The applicants objected, since no such road existed in any formal plans, while the MEPA argued that, since it was being used as a road, it had to be considered a road. 25. On 26 January 2012 the Local Council’s PC application was approved, resulting in the existing road being recognised as a schemed road, in the interest of proper planning. 26. According to the applicants, no avenue of appeal against such a decision existed, in accordance with Article 28 of the Development and Planning Act (Chapter 356 of the Laws of Malta), since Article 59 of the Environment and Development Planning Act (Chapter 504 of the Laws of Malta) had not yet come into force. 27. On 20 February 2012 the applicants instituted constitutional redress proceedings, asking the Civil Court (First Hall), in its constitutional competence, to find a violation of Article 1 of Protocol No. 1 to the Convention and declare the MEPA decision in favour of the Local Council’s PC application unlawful, and requesting compensation for pecuniary and non-pecuniary damage. 28. On 30 September 2014 the Civil Court (First Hall), in its constitutional competence, decided not to take cognisance of the merits of the case, in so far as the applicants had not exhausted ordinary remedies which could have sufficiently addressed the infringements of their rights. Referring to the general principles of the Court’s case-law, it considered that the applicants had an effective remedy, namely an ordinary civil remedy, which they had not used. Indeed, the applicants had instituted ordinary civil proceedings (no. 425/2007 JZM, see paragraphs 8 to 10 above) in relation to that part of the land where a football pitch had been built, despite their also raising a constitutional complaint under Article 1 of Protocol No. 1 to the Convention in that case. Therefore, there was no reason why the applicants could not have utilised the same ordinary remedy with regard to the part of the land which had become a road, instead of instituting constitutional redress proceedings in this regard. While it was true that, in the present case, the applicants were claiming compensation in respect of pecuniary and nonpecuniary damage, such claims were to be made only after a finding in favour of the applicants by the ordinary court. 29. Furthermore, the court held that, in relation to their claim against the MEPA decision, while it was true that no avenue of appeal existed against it, the applicants had failed to utilise the judicial review procedure (Article 469A of the Code of Organisation and Civil Procedure). While that procedure was limited in the form of redress it could give (Article 469 A(5)), the applicants could nevertheless have asked the court to annul the MEPA decision in favour of the Local Council. 30. The applicants appealed, claiming that they did not have an ordinary, effective, just and adequate remedy available to them. In particular, they argued that, while it was normal to lodge an eviction action against the Local Council occupying the land used as a football ground, it could not lodge an eviction action in relation to a piece of land which was not physically occupied, but solely a projected road on paper. 31. By a judgment of 30 October 2015 the Constitutional Court rejected the applicants’ claims and upheld the decision of the first-instance court. 32. The Constitutional Court noted that, by a judgment of 24 June 2011, the Court of Appeal had confirmed that the Local Council had possession of the land. It followed that an ordinary civil action for eviction was possible. As to the remedy of judicial review, while it was true that such a review was not intended to deal with human rights violations, and that, according to domestic case-law, [Article 469A] sub-article 1 (a) referred to constitutional violations other than those arising from fundamental human rights and freedoms, in the present case the applicants should have used that remedy: requesting that the court annul the MEPA decision on application 9/11 on the grounds that it had been made on the basis of an allegedly unlawful premise (namely, a false declaration made by the MEPA as to the existence of a road). Coupled with this, the applicants could have used ordinary civil proceedings for a declaration that the passage or road in question was their property and to seek the eviction of the Local Council therefrom in so far as they claimed that the Local Council was occupying the land illegally in the absence of an expropriation according to law; as well as requesting compensation for the unlawful occupation of premises. According to the Constitutional Court, these were ordinary, effective, efficient, and available remedies which should have been exhausted before the applicants instituted extraordinary constitutional redress proceedings. 33. Article 469A of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, in so far as relevant, reads as follows: “(1) Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases: (a) where the administrative act is in violation of the Constitution; (b) when the administrative act is ultra vires on any of the following grounds: (i) when such act emanates from a public authority that is not authorised to perform it; or (ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or (iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or (iv) when the administrative act is otherwise contrary to law. (2) In this article - "administrative act" includes the issuing by a public authority of any order, licence, permit, warrant, decision, or a refusal to any demand of a claimant, but does not include any measure intended for internal organization or administration within the said authority ...” 34. Sections 40 and 41 of the Environment and Development Planning Act, Chapter 504 of the Laws of Malta, in so far as relevant read as follows: “40. (1) There shall be a Tribunal, to be known as the Environment and Planning Review Tribunal, consisting of three members, one being a person versed in environment or development planning, who shall preside, and a lawyer and an architect, each of whom shall be appointed by the President acting on the advice of the Minister. 41. (1) Subject to those articles which specifically exclude the right to appeal before the Tribunal, and to articles 81(14), 82(4) and 86, the Tribunal shall have jurisdiction to: (a) hear and determine all appeals made by the applicant or a person aggrieved by a notice issued under the provisions of Part VI on any decision of the Authority on any matter of development control, including the enforcement of such control, or appeals made by any person on any decision of the Authority relating to environment protection, including environment assessments, access to environmental information and the prevention and remedying of environmental damage: ... (2) Unless otherwise provided under any provision of this Act, an appeal may be lodged before the Tribunal within thirty days from date of notification of the decision or order by the Authority. (3) In case of a development listed in the Seventh Schedule, at the request of the appellant made concurrently with the application for the appeal, through a partial decision, the Tribunal may suspend the execution of the development, in whole or in part, as approved by the development permit subject of the appeal, under those terms, conditions and other measures it may deem fit: Provided also that the application is not for a development which, in the opinion of the Minister is of strategic significance or of national interest, related to any obligation ensuing from a European Union Directive, affects national security or affects interests of other governments. (4) In the cases referred to in sub-article (3), the Tribunal shall hold its first hearing be within six working days from receipt of the appeal, and shall not suspend the execution of such a permit unless it is satisfied, after hearing all the parties, that unless the execution of the permit is suspended the prejudice that would be caused would be disproportionate when compared with the actual doing of the thing so permitted or if the request is deemed as frivolous or vexatious: Provided that the Tribunal shall justify the decision suspending the execution of the development and shall grant its final decision on the merits of the appeal within three months from the date of the first hearing of the appeal: Provided further that the suspension of the execution of such a permit may not be more than three months from the date of the first hearing of the Appeal before the Tribunal, and the suspension order shall be deemed to have elapsed ipso iure after the lapse of such a period. (5) In all other appeals, the first hearing of the Tribunal shall be held within three months from receipt of the appeal.”
| 0 |
test
|
001-183117
|
ENG
|
ALB
|
CHAMBER
| 2,018 |
CASE OF TOPI v. ALBANIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Access to court)
|
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
6. The applicant was born in Peqin in 1977. He is currently serving a prison sentence. 7. In 1998 the applicant was implicated in the commission of the criminal offence of setting up and being a member of an armed gang and of other criminal offences. 8. On 4 February 1999 the prosecutor charged him with the offences of membership of an armed gang, attempted intentional murder and other crimes. The notification of the prosecutor’s charges was acknowledged by the applicant’s officially appointed lawyer. 9. It appears that throughout the investigation proceedings the applicant was represented by an officially appointed lawyer. 10. On 12 February 1999 the Elbasan District Court ordered the applicant’s arrest. However, the order could not be enforced as the applicant could not be traced. 11. On 19 February 1999 the Elbasan District Court declared the applicant a fugitive from justice after unsuccessful attempts to locate him. The decision stated that it was impossible to find him as it appeared that he had escaped to an unknown destination (këto kërkime nuk kanë bërë të mundur kapjen e të pandehurit pasi ai rezulton të ketë ikur në drejtim të paditur). 12. On an unspecified date the prosecutor decided to commit the applicant for trial. 13. On 28 May 1999 the Supreme Court transferred the case for examination to the Durrës District Court. 14. On 2 June 1999 the applicant’s father appointed a lawyer to represent the applicant before the domestic courts. 15. The trial proceedings against the applicant were conducted in absentia and he was represented by a lawyer appointed by his family in accordance with Article 48 § 3 of the Code of Criminal Procedure (“CCP”). 16. On 15 February 2000 the Durrës District Court convicted the applicant in absentia of establishing and participating in an armed gang and attempted intentional murder. He was sentenced to fifteen years’ imprisonment. The decision was based on evidence from documents and witness testimony. 17. The applicant’s family-appointed lawyer and the other co-accused appealed against the conviction to the Durrës Court of Appeal (“the Court of Appeal”). On 19 April 2000 the Court of Appeal declined to examine the applicant’s appeal on the grounds that the applicant’s family had not given any express authority to the lawyer for such a procedure. However, the Court of Appeal examined the applicant’s case as part of its overall examination, having regard to the appeals of the other defendants. It convicted the applicant of the same offences as before and sentenced him to thirteen years’ imprisonment. 18. On 7 December 2000 the Supreme Court dismissed appeals by the applicant and other co-accused against the Court of Appeal’s decision of 19 April 2000. 19. On 16 September 2005 the applicant was arrested by the Czech authorities on the basis of an arrest warrant issued by Albania. 20. On 25 January 2006 the applicant was extradited to Albania. 21. On 1 March 2006 the applicant was officially informed of his conviction in absentia. 22. On 13 September 2007 the applicant lodged a constitutional appeal against the conviction in absentia. 23. On 24 October 2007 the Constitutional Court, sitting in camera, declared the appeal time-barred as the two-year time-limit had started to run on 7 December 2000. The Constitutional Court’s reasoning stated that throughout the proceedings the applicant had been represented by a courtappointed lawyer or a family-appointed lawyer and that accordingly he had had the opportunity to become acquainted with the proceedings brought against him.
| 1 |
test
|
001-172315
|
ENG
|
GEO
|
CHAMBER
| 2,017 |
CASE OF STURUA v. GEORGIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal)
|
András Sajó;Ganna Yudkivska;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1953 and lives in Tbilisi. 6. On 15 May 1999 the applicant was appointed President of the Abasha District Court for a ten-year term. 7. On 3 December 2004 the Supreme Council of Justice initiated disciplinary proceedings against the applicant under section 2(2)-(e) of the Act of 22 February 2000 on Disciplinary Proceedings against Judges of Ordinary Courts (hereinafter, “the Disciplinary Proceedings Act” – see paragraphs 15-18 below). He was accused in particular of having retained a criminal case file for six months after withdrawing from the case on 29 October 2003. 8. On 23 December 2004 a Panel of the Disciplinary Council of Judges (hereinafter, “the Panel”), composed of Mr K.K. (the President of the Panel and rapporteur), Mr G.Ch, Mr D.S. and Mr Th.Th., considered the case at an oral hearing. According to the transcript of the hearing, the applicant admitted to the act of negligence he had been accused of. After examining the circumstances of the case, the Panel found the applicant guilty of the misconduct in question. It considered his conduct all the more serious because the defendants in the case had been in detention at the time and because he had had a duty, under Article 6 of the Convention, to act promptly and without fault. The Panel took into account the nature of the misconduct, which it classified as serious, and the existence of another disciplinary measure against the applicant in the past, and decided to remove him from office. 9. On 29 December 2004 the applicant lodged an appeal with the Disciplinary Council of Judges (hereinafter, “the Disciplinary Council”) on points of fact and law under section 60(1) of the Disciplinary Proceedings Act (see paragraph 17 below). He questioned the assessment of the circumstances of the case and the application of the legal provisions to the established facts in the decision of 23 December 2004. His appeal was examined at a plenary session of the Disciplinary Council composed of eight members, including the same four, Mr K.K., Mr G.Ch., Mr D.S. and Mr Th.Th, who had sat at the first hearing. As before, Mr K.K. acted as President and rapporteur in the examination of the applicant’s appeal. 10. By a decision of 27 January 2005, the Disciplinary Council unanimously upheld the Panel’s decision of 23 December 2004 in its entirety. The appellate instance confirmed that the lower body had correctly established the facts and applied the relevant law to the factual findings. 11. The applicant then lodged an appeal on points of law with the Supreme Court under section 74 of the Disciplinary Proceedings Act, as amended on 25 February 2005 (see paragraph 18 below). He argued that he had not been given notice that he could appear before the Panel and that there had been a delay in the Disciplinary Council examining his appeal. He also stated that under Article 6 of the Convention the four members of the Panel who had taken the decision of 23 December 2004 had not had the right to sit subsequently in the Disciplinary Council appeal hearing. 12. In a judgment of 11 July 2005, the Supreme Court dismissed the applicant’s cassation appeal as ill-founded. Based on the transcript, it found that he had in fact been present at the Panel hearing on 23 December 2004 and had been able to state his case without impediment, contrary to his allegation. At the hearing the applicant had admitted to the act of negligence with which he had been charged. The Supreme Court rejected the allegation of a delay in the examination of the case by the Disciplinary Council by noting that the latter had given its ruling within the statutory time-limit of one month. The Supreme Court also found that the presence of four members of the Panel as participants in the subsequent Disciplinary Council proceedings had not contravened the requirements of sections 22 and 24 of the Disciplinary Proceedings Act (see paragraph 17 below).
| 1 |
test
|
001-170861
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF SAYEROV v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
4. The applicant was born in 1963 and is currently serving his term of imprisonment in Nizhniy Tagil. 5. Since 12 June 2011 the applicant waited trial in remand prison IZ21/2 in the Republic of Chuvashiya. According to him, between 15 June 2011 and 15 April 2012 he was transported by prison van on approximately one hundred occasions between the remand prison and temporary detention facility of Cheboksary (IVS) which was the closest secure facility to the court building. Although on some rare occasions the applicant was alone in the van, during other trips he was either placed in a single occupancy cell measuring 0.25 sq. m or remained on his feet because there were no free seats. There were no toilets in the vans, prisoners used plastic bottles. On the days of transport, the applicant did not receive food rations. Lengthy check-in and check-out procedures resulted in two-hour wait at either facility with inmates staying inside vans. The applicant submitted a certificate issued by the remand prison governor showing the dates of his transport. 6. The Government provided a description of the applicant’s conditions of transport, relying on transport logs concerning fifty-five trips, photographs of the vans, and two certificates issued by the Ministry of Interior of the Republic. One of the certificates lacked references to any original documentation and mentioned fifty-five trips and the one referred to “extracts from the prisoner transport logs” and listed sixty-six trips on different dates. The Government stated that they could not provide the full information about the conditions of the applicant’s transport. They added that the applicant was transported on fifty-five occasions in total, on thirteen of which he was in the van alone. The number of prisoners did not exceed the maximum capacity of vans, an average trip lasted 35-40 minutes, some of the vans were equipped with toilets, and the applicant was provided with dry food rations.
| 1 |
test
|
001-154150
|
ENG
|
SVK
|
CHAMBER
| 2,015 |
CASE OF MASLÁK v. SLOVAKIA
| 4 |
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)
|
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The applicant was born in 1979 and habitually resides in Pružina. 6. Between 29 October 2007 and 12 March 2009 the applicant was charged with a number of offences, mainly of a violent nature and with an organised crime background. 7. On 27 September 2008 he was arrested in the context of his prosecution on these charges, and subsequently remanded in custody pending trial. At the time of his request for release, which forms the subject matter of this application and is described in detail below, his detention was authorised by the Special Court (Špeciálny súd) until 27 September 2009. 8. After the events complained of, the applicant was released on 1 April 2010. However, the criminal proceedings against him appear to be still pending. 9. By a submission dated 20 May 2009, addressed to the Office of Special Prosecutions (Úrad Špeciálnej prokuratúry - “the OSP”), and received by its addressee on 26 May 2009, the applicant requested release. He relied on a recent judgment of the Constitutional Court (Ústavný súd) concerning the status of the Special Court (see Fruni v. Slovakia, no. 8014/07, §§ 11-15 and 68-89, 21 June 2011), argued that his detention on the authority of the Special Court had been unlawful, and maintained that his detention had in any event been unwarranted. 10. By a submission dated 21 May 2009, the applicant addressed a similar request to the Office of the Prosecutor General (Generálna prokuratúra - “the OPG”), where it was received on 25 May 2009. 11. Lastly, by a submission dated 21 May 2009, addressed to the Special Court and received there on 29 May 2009, the applicant requested release on similar grounds and offered a formal pledge that, if released, he would live in accordance with the law. 12. By law, all three submissions fell to be examined at first instance by the OSP. Those made to the OPG and the Special Court were therefore transmitted to the OSP on 26 May and 3 June 2009, respectively. 13. As the OSP did not grant the request formulated in the three submissions, they fell to be judicially examined by the Special Court, to which they were transmitted on 2 and 3 June 2009, respectively. 14. By way of a submission dated 23 May 2009, which was received by the Special Court on 29 May 2009, the applicant expressed objections to the handling of his case by the Special Court judge who was handling his detention case at first-instance, which the Special Court interpreted as a challenge to the judge on the grounds of bias. 15. On 2 June 2009 the challenge was dismissed. On 10 June 2009 the decision was served on the applicant and on 11 June 2009 he lodged an interlocutory appeal (sťažnosť), which was dismissed by the Supreme Court (Najvyšší súd) on 24 June 2009. The case file was returned to the Special Court on 1 July 2009. 16. On 1 July 2009 the Special Court ordered that the request be examined in the framework of a public session (verejné zasadnutie) to be held on 13 July 2009. 17. On 8 July 2009 the Special Court was informed that the applicant’s lawyer had been struck off the list of counsel and thus could no longer represent him. In response, on 9 July 2009 the Special Court enquired of the investigator whether the applicant had been asked to appoint a new lawyer and, if so, whether he had actually done so. Later on the same day, the investigator asked the applicant to appoint a lawyer within three days, failing which a lawyer would be appointed for him by the court. 18. On 13 July 2009 the applicant was heard before the Special Court. He submitted that it was his intention to appoint a lawyer, that the three-day timescale allowed him for that purpose had been unrealistically short, and that he disagreed with having a lawyer appointed for him by court. 19. In the circumstances ‒ as legal representation was mandatory ‒ the public session scheduled for later on 13 July 2009 had to be cancelled. 20. Nevertheless, on the same day, that is on 13 July 2009, the applicant also made a written submission containing his arguments and waiving his right to have the request for release examined in a public session. 21. On 16 July 2009 the Special Court appointed a lawyer for the applicant and dismissed the applicant’s request for release. The written version of the decision to dismiss the applicant’s request for release was served on his courtappointed lawyer on 21 July 2009, on his subsequently appointed lawyer of choice on 27 July 2009, and on the applicant himself on 30 July 2009. In it, the Special Court recapitulated the procedural history and the applicable statutory provisions. In addition, it observed that the Constitutional Court’s judgment referred to by the applicant (see paragraph 9 above) had not yet been published in the Collection of Laws. Its rulings had thus not entered into force yet and the Special Court’s status was not compromised for the time being. Moreover, the Special Court explained in detail why it considered the applicant’s detention necessary and why his release in return for a pledge of lawful conduct was not acceptable. 22. By way of an interlocutory appeal lodged by both the applicant’s lawyer and the applicant himself, the applicant challenged the decision of 16 July 2009 to dismiss his request for release. The appeal lodged by his lawyer was dated 23 July 2009, was addressed to the Special Court, reached its addressee on 27 July 2009, and was transmitted to the Supreme Court on 31 July 2009. The applicant’s own appeal was dated 2 August 2009, was addressed directly to the Supreme Court, and was received there on 5 August 2009. 23. At the same time as lodging the appeal, the applicant challenged the entire criminal-law bench of the Supreme Court on grounds of bias, once again relying on the Constitutional Court’s judgment mentioned above (see paragraph 9). 24. On 13 August 2009 the Supreme Court dismissed the challenge. Prior to this decision, all the Supreme Court judges concerned had been asked to state a position in respect of the challenge and a special chamber had been appointed to rule on it. 25. On 25 August 2009, sitting in private (neverejné zasadnutie), the Supreme Court dismissed the applicant’s interlocutory appeal against the decision of 16 July 2009. The Supreme Court’s decision was served on the applicant on 2 September 2009. 26. On 4 November 2009 the applicant filed a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court. The complaint was directed against the Specialised Criminal Court (Špecializovaný trestný súd), which had by then come into being as the legal successor to the Special Court, and also against the Supreme Court and the OSP. 27. Relying on Article 5 §§ 3 and 4 of the Convention and its constitutional equivalents, he argued that his request for release had not been determined by an independent tribunal, that its dismissal had not been supported by adequate reasoning, that he had arbitrarily been denied his right to release pending trial, and that his request had not been determined “speedily”. 28. In terms of relief, the applicant requested that the decisions of 16 July and 25 August 2009 be quashed, that his release be ordered, and that he be awarded 21,000 euros (EUR) by way of compensation for nonpecuniary damage, plus reimbursement of his legal costs. 29. On 17 June 2010 the Constitutional Court declared the complaint inadmissible for being in essence manifestly ill-founded. 30. As to the complaint about the alleged failure to achieve a speedy determination of the applicant’s request, the Constitutional Court observed, in particular, that the delay in serving the Special Court’s decision of 16 July 2009 on his lawyer of choice and the applicant himself (see paragraph 20 above) was due to the facts that the lawyer of the applicant’s choice had only announced his appointment to the police, that this information had accordingly had to be transmitted to the court, which had taken some time, and that the prosecution service had failed to inform the court that, at the given time, the applicant had been transferred to a prison other than the one known to the court, as a consequence of which the decision had been sent to a wrong address and had had to be sent again. 31. Examining separately the proceedings before the Special Court and the Supreme Court and the involvement of the OSP, the Constitutional Court concluded that, taking into account all the circumstances, there had been no delays attributable to the authorities that had reached a constitutionally relevant threshold. From that perspective, the Constitutional Court considered that any delays resulting from the applicant’s challenges alleging bias had been imputable to him and that the relevance of the delays in serving the Special Court’s decision of 16 July 2009 on the applicant (on 30 July 2009) ‒ which had been due to a lack of coordination among the authorities concerned ‒ had been diminished by the service of that decision on the lawyer of the applicant’s choice on 27 July 2009. The written version of the Constitutional Court’s decision was served on the applicant on 26 August 2010.
| 1 |
test
|
001-155713
|
ENG
|
GBR
|
COMMITTEE
| 2,015 |
CASE OF ALEXANDER v. THE UNITED KINGDOM
| 4 |
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction)
|
Nona Tsotsoria;Paul Mahoney
|
5. The applicant was born in 1986 and is currently in detention at HMP Risley. 6. On 17 April 2007, after pleading guilty to counts of rape, indecent assault and robbery, the applicant was sentenced to an indeterminate sentence for the public protection (“IPP”). The minimum term that the applicant had to serve before being eligible for release (the “tariff”) was set at 4 years 273 days. His tariff was due to expire on 16 January 2012. 7. On 16 October 2007 the applicant completed alcohol in cell work and on 31 October 2007 he completed an alcohol awareness course. 8. In March 2008 the applicant was transferred to HMP Wayland. From 30 May 2008 to 2 July 2008 he participated in the Enhanced Thinking Skills (“ETS”) course. 9. In November 2008 the applicant completed the Living with Loss course. 10. On 16 July 2009 the applicant completed the Core Sex Offenders Treatment Programme (“SOTP”). In a post-programme progress review dated 30 November 2009, further work to reduce his risk of reoffending was identified, namely full engagement in the Structured Assessment of Risk and Need (“SARN”) process and full engagement in further assessments for sexual offending programmes. 11. A SARN Report dated 8 April 2010 prepared by a forensic psychologist in training noted that the applicant was assessed at a high statistic and high dynamic risk of sexual reoffending. It recommended personality and psychiatric assessments followed by completion of the extended Sex Offenders Treatment Programme (“ESOTP”) in order to reduce his risk. It concluded that the risk presented by the applicant was not low enough for him to be transferred to open conditions. The applicant was placed on a waiting list for the ESOTP. 12. On 20 May 2010 the applicant was informed by the Parole Board that it had not directed his release on licence or transfer to open conditions as some risk factors were outstanding. It noted that the Secretary of State had identified the need for sex offending and alcohol awareness work to reduce the level of risk. The applicant’s next parole process was to commence in May 2011, with an oral hearing in November 2011. 13. On 13 September 2010 the applicant made a formal application to HMP Bure, where he was then detained, to ask whether it intended to run the ESOTP. He was advised in reply that the prison planned to run the ESOTP in around April 2011. The applicant was not selected to participate in the course. 14. On 13 July 2011 the applicant completed a further alcohol awareness course. 15. On 26 September 2011 the Parole Board decided, on the papers, not to direct the applicant’s release. It noted that the applicant had completed an accredited alcohol course, the ETS course and the SOTP and that he hoped to complete the Thinking Skills Programme (“TSP”) and ESOTP in the near future. It concluded: “You have been consistently well motivated to engage with all work identified as necessary for you. This is to your credit, as is your calm and personable approach. You have made some progress in that you now talk more openly and in more depth about your sexual offences. This has enabled you to work constructively with programme facilitators, and has provided a foundation on which to build in the ESOTP. You are motivated to complete that programme, and it is only available in the closed estate – any move to open conditions would therefore be premature. Release is, at present, out of the question. There is some lack of clarity around some of the risk factors in your case, and you yourself recognise that there is more to be done in terms of addressing risk ...” 16. In November 2011 the applicant completed the TSP. 17. By letter dated 1 December 2011, the applicant was informed that the Secretary of State had considered the Parole Board recommendation and agreed that the applicant was not suitable for release or transfer to open prison conditions. The next review period was set at twenty months, allowing eight months for completion of TSP, six months for completion of ESOTP and six months for production of a further SARN report. The review would therefore commence in October 2012 with a view to completion by July 2013. 18. In a Sentence Planning and Review Report dated 5 December 2011, it was recognised that ESOTP was a course that the applicant should concentrate on as part of his sentence plan. The report observed that the applicant’s need to improve his use of alternative styles of thinking had been addressed through his attendance at the TSP. The report further noted: “Alcohol was an area that was problematic before his incarceration ... He has completed an accredited alcohol course (TADS) and continues to work with CARATS to address this issue. Mr Alexander has completed TSP and reports following completion were positive ... His sentence plan also recommends that he is assessed for the Extended SOTP. I understand from the programmes department that due to lack of resources this remains an objective. However, I am confident that subject to local prioritization strategy this should be completed in 2013.” 19. The applicant’s tariff expired on 16 January 2012. 20. On 27 April 2012 the Prison Service notified the applicant’s solicitors that the applicant was listed on their database “as a priority for assessment” prior to the next ESOTP scheduled to commence in August 2012. The applicant was not selected to participate in the course. 21. On 24 May 2012 the applicant completed a “Change is Possible” group work session. On an unknown date, he attended a brick-laying course. 22. On 12 October 2012 the applicant made a formal application to HMP Bure to ask for an assurance that he would have a place on the next ESOTP. He was advised in reply that no such assurance could be given but that he was a “high priority”. 23. On 28 November 2012 the Prison Service advised the applicant’s solicitors that he would continue to be considered for the next group to participate in the ESOTP, in line with the prioritisation strategy. 24. On 18 December 2012 the applicant’s Parole Assessment Report commented on the work done to date and noted: “Unfortunately, Mr Alexander has yet to get a place on the [ESOTP] and it is hoped that he will in March 2013.” 25. In its recommendation, the report stated: “It is hoped that [the applicant] will be able to participate in the ESOTP (6 months in duration) that is scheduled for March 2013. Until that programme is completed and a further SARN written to identify whether further intervention is required to manage risk, there can be no change to his current assessments and there is no support for a move to less secure conditions at this time ...” 26. On 12 February 2013 the Parole Board decided on the papers not to direct the applicant’s release, deeming him still a risk to the public until he completed the ESOTP. Its report stated: “Through no fault of your own, you have been unable to complete ESOTP but it is anticipated that you will have the opportunity to do so in 2013.” 27. On 13 February 2013 the applicant was informed by HMP Bure programmes team that his placement onto the ESOTP expected to run in June 2013 would depend on the assessment process, which was ongoing, and on his level of priority. 28. On 11 March 2013 the applicant’s solicitors advised him that HMP Bure had informed them that the applicant would be assessed for a place on the ESOTP to commence in May 2013. 29. On 13 March 2013 the applicant was informed that the Parole Board decision of February 2013 was final and that the next review would commence in October 2013, with a view to a hearing in May 2014. 30. On 2 April 2013 the applicant was assessed as being suitable for the ESOTP. 31. On 10 April 2013 the applicant’s solicitors advised him that they had been informed by HMP Bure that he was a “relatively high priority” to complete the next ESOTP running at HMP Bure in May/June 2013. 32. In June 2013 the applicant was transferred to HMP Whatton. In February 2014 he underwent further assessments for the ESOTP in order for prison staff to decide whether he could access the ESOTP at another prison or whether he should undertake the course at HMP Whatton. 33. On an unknown date in autumn 2014 the applicant commenced the ESOTP at HMP Risley. He was due to complete the course in March 2015.
| 0 |
test
|
001-150300
|
ENG
|
RUS
|
COMMITTEE
| 2,015 |
CASE OF ZAVORIN v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)
|
Dmitry Dedov;Erik Møse;Khanlar Hajiyev
|
4. The applicant was born in 1976 and lives in Kemerovo. 5. On 1 March 2008 the applicant was arrested on suspicion of causing grievous bodily injuries to Mr K. On 3 March 2008 the Tsentralnyy District Court of Kemerovo remanded him in custody. 6. On 10 October 2008 the applicant and other persons were charged with running of a criminal syndicate, extortion and other offences. On 18 March 2010 the case was sent for trial to the Kemerovo Regional Court. 7. On 28 May 2013 the Kemerovo Regional Court, further to a verdict by a jury, found the applicant guilty and sentenced him to six years’ imprisonment. 8. On 11 February 2014 the Supreme Court of the Russian Federation quashed the conviction and remitted the case for a new trial. It decided that the applicant should stay in custody: “Zavorin, P[.], K[.], Sp[.] and Sl[.] stand accused of serious and particularly serious offences. Having regard to the gravity of the charges and the information on their character which is available in the case materials, the court considers that the grounds listed in paragraph 1 of Article 97 of the Code of Criminal Procedure are present. The information about the case, taken in its entirety, gives reason to consider that, if the above individuals were to be released from custody, they might abscond and thereby prevent the case from being examined within a reasonable time (the time the proceedings before the first-instance court have already taken should not be discounted) or they might influence the witnesses or victims. Under these circumstances, the court considers that these individuals must be placed into custody for a period of three months”. 9. On 28 April 2014 the Kemerovo Regional Court returned the case to the prosecutor so that certain procedural defects could be remedied. It also extended the applicant’s and other defendants’ detention for a further three months, referring mainly to the gravity of the charges but also to the wording of the Supreme Court’s decision of 11 February 2014. In so far as the applicant sought to rely on the Government’s admission of a violation, the Regional Court held as follows: “The defendant A. L. Zavorin filed an application for release on an undertaking to appear and to be of good conduct, relying on the fact that his prolonged detention in the present proceedings was deemed to be unjustified in the framework of the proceedings on his application before the European Court of Human Rights and that the [Russian] Government offered him compensation ... which he refused ... A. L. Zavorin [and another co-defendant] submitted documents concerning the examination of their applications by the European Court of Human Rights which are in English; they are not translated into Russian or properly certified. The document in Russian which A. L. Zavorin submitted is not certified either. The court is not competent to translate the documents which the parties submitted ... Having regard to the number and nature of the offences imputed to Sp[.], P[.], A. L. Zavorin and St[.] and the public danger they represent, the information on their character, the particular complexity of the criminal case, the time that the remedying of the defects and a subsequent trial will take, the court considers that their detention must be extended for a further three months, until 28 July 2014.” 10. On 28 July 2014 the senior investigator of the Investigations Committee ordered the applicant’s release, noting that he had spent in custody more than seventy-six months, whereas the Code of Criminal Procedure set the maximum duration of pre-trial detention at eighteen months.
| 1 |
test
|
001-173769
|
ENG
|
AUT
|
CHAMBER
| 2,017 |
CASE OF KÜLEKCI v. AUSTRIA
| 4 |
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)
|
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1990 and lives in Turkey. 6. The applicant’s parents, who are of Turkish origin, were living in Austria when the applicant was born. They divorced in 1992 and his father was awarded sole custody. In the same year, his grandparents, who had been looking after him while his father had been working, moved to Turkey and took the applicant and his sister with them. The applicant’s mother also returned to Turkey, but founded a new family and did not keep in touch with him. The applicant lived in Turkey from 1992 until 1998, attending school there for three years. In 1998, when he was eight years old, he and his sister moved back to Austria to live with their father again. For that purpose, the applicant was granted a residence permit by the Austrian authorities. 7. On 30 December 2004, at the age of 14, the applicant, together with four of his friends, assaulted a man. He jumped on the victim from behind, while his friends beat and kicked the man, causing him serious injuries. They also stole money and cigarettes from their victim. On 20 January 2005 the applicant attempted to shoplift. On 29 August 2005 he drove a moped without the owner’s consent. 8. On 8 November 2005 the applicant and his friends stole an item from a man. Between 15 and 30 January 2006 the applicant and a group of his friends partly attempted and partly succeeded in stealing the handbags of nine elderly women through threats or the use of force. The applicant was 15 years old at that time. He had ripped the handbags from some of the victims; grabbed one of the women from behind, holding her mouth and dragging her to the ground; hit another one on the head and pushed his knee into her back so that she would fall down; and had also beaten some of them. Two of the women were seriously injured as a result. 9. On 13 March 2006 the Vienna Regional Criminal Court (Straflandesgericht – hereinafter, “the Criminal Court”) convicted the applicant of aggravated robbery, attempted theft and unauthorised use of a motor vehicle (see paragraph 7 above). He was sentenced to one year’s imprisonment, which was suspended for a probationary period of three years. The Criminal Court considered as mitigating factors that the applicant had no previous criminal record, that he had confessed to his crimes and that he had shown willingness to afford redress to the victim. Aggravating factors were that he had committed several offences, specifically a crime and two misdemeanours. In its reasoning of the judgment, the Criminal Court noted that the applicant had been notorious for excessive acts of violence and had had to change schools several times already. It observed that the applicant had virtually no age-appropriate capacity of reflection, and attested that he had an enormous tendency to act aggressively, which he used as his strategy for problem-solving. 10. On 31 May 2006 the Criminal Court convicted the applicant of aggravated robbery as a member of a criminal organisation and theft (see paragraph 8 above). He was sentenced to two and a half years’ imprisonment. The probationary period of his previous criminal conviction of 13 March 2006 was prolonged to five years in total. The Criminal Court considered the applicant’s confession to be a mitigating factor, but the repeated commission of offences as an aggravating factor. It argued in its reasoning that the applicant had taken a leading role in the robberies. The applicant and his friends had deliberately targeted elderly women because they had expected they would not resist. Moreover, the Criminal Court found that the applicant had been one of the main perpetrators, which is why there was no leeway to pronounce a more lenient sentence than two and a half years’ imprisonment. 11. On 7 August 2006 the Vienna Federal Police Authority (Bundespolizeidirektion) imposed a ten-year exclusion order (Aufenthaltsverbot) on the applicant pursuant to section 60(1) and (2)(1), section 63(1) and (2), and section 66 of the Aliens Police Act (Fremdenpolizeigesetz). It found that even though most of his family lived in Austria, the applicant’s expulsion was justified because of the severity of his offences in order to protect public order and security. 12. The applicant appealed. He argued that he had committed the criminal offences as a juvenile delinquent who had had the wrong friends. The authorities had not properly taken into account his interests, given that his father, paternal grandparents, siblings, half-brothers and half-sisters all lived in Austria. Because of his young age he would not be able to live in Turkey by himself. 13. On 16 March 2007 the Vienna Security Authority (Sicherheitsdirektion) partly granted his appeal and limited the exclusion order to eight years. 14. On 30 April 2007 the applicant was released from prison because of his good conduct after having served half of his sentence. 15. On 11 December 2007 the Administrative Court set aside the Vienna Security Authority’s decision of 16 March 2007 for lack of jurisdiction and held that the Independent Administrative Panel (Unabhängiger Verwaltungssenat – hereinafter, “the IAP”) was the competent authority to examine the appeal. 16. On 21 July 2008, following an oral hearing, the Vienna IAP partly granted and partly dismissed the applicant’s appeal. It confirmed the legality of the exclusion order, but limited it to five years. It considered that the robberies in particular had been serious offences which demonstrated the applicant’s severe disrespect for the well-being and property of others. The victims had been mostly elderly, fragile women, who had been physically weaker than him and his friends. Two of the women had been severely injured. The applicant had been one of the main perpetrators. His tendency towards violence and aggression was remarkable and appeared to have even increased between the first and the second conviction. The IAP further took into consideration that the applicant had only been 14 and 15 years old at the time of the offences, and therefore had still been in the process of reaching maturity. This was however put into perspective by the fact that he had not offended only once, but multiple times, and in a particularly brutal manner. 17. The IAP proceeded to examine whether it could be assumed that the applicant still posed a threat to public order and safety. His probation officer (Bewährungshelfer) testified that the applicant had developed a sense of justice after his conviction and that cooperation with him had worked well. The applicant had worked as an apprentice during his time in prison. After his release, he had participated in several training programmes and was looking for a job. The IAP noted furthermore that the applicant had not reoffended in over a year since his release from prison. It came to the conclusion, however, that the relatively short time since his release was not enough to prove that he was not a danger to society anymore. 18. The IAP then assessed whether the exclusion order violated the applicant’s rights under Article 8 of the Convention. It held at the outset that an expulsion of “second-generation migrants” such as the applicant was subject to stricter criteria than an expulsion of other foreigners. Referring to the Court’s judgments in the cases Boultif v. Switzerland (no. 54273/00, ECHR 2001IX), Üner v. the Netherlands ([GC] no. 46410/99, ECHR 2006XII) and Maslov v. Austria ([GC] no. 1638/03, ECHR 2008), it found that – in contrast to Maslov – the applicant had repeatedly committed serious crimes of a violent nature. Because of his family and his social integration in Austria, the exclusion order constituted an interference with his rights under Article 8 of the Convention. However, he had almost reached the age of majority at the time the exclusion order had been issued. Economic integration could not be observed as he was unemployed at the time. He spoke Turkish and had last visited Turkey in 2001. His mother still lived in Turkey; he had no contact with her at the time but could get in touch with her. The serious nature of the offences and the resulting public interest in his expulsion therefore outweighed the applicant’s interest in remaining in the country. However, because of his young age, the IAP concluded that a five-year exclusion order would be sufficient. 19. On 30 September and 16 December 2008 respectively, the Constitutional Court and the Administrative Court declined to hear prior appeals by the applicant against the IAP’s decision. 20. On 8 September and 17 November 2009 and on 4 January 2010 the applicant was informed of the possibility to leave the country voluntarily. As he did not leave, he was expelled to Turkey on 10 February 2010. He was nineteen years old at that time. 21. The five-year exclusion order against the applicant, which had been pronounced in the IAP’s decision of 21 July 2008, expired in July 2013.
| 0 |
test
|
001-156250
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF NOVAKOVIĆ v. CROATIA
| 3 |
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
|
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicant was born in 1956 and lives in Sisak. 6. The applicant, a person of Serbian ethnic origin, lived in the town of Sisak. 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”). The town of Sisak was close to the border of Krajina. There were targeted killing of Serbian civilians by members of the Croatian police and army in the Sisak area during a prolonged period in 1991 and 1992 (see Jelić v. Croatia, no. 57856/11, § 78, 12 June 2014). In July 1991 the applicant left the town of Sisak, fearing for his personal safety. 7. At the beginning of August 1995 the Croatian authorities announced a campaign of military action with the aim of regaining control over the Krajina. The action was codenamed “Storm” and lasted from 4 to 7 August 1995. 8. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”). On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began. 9. On 26 September 1999 the applicant lodged a civil action against the Sisak Municipality and the Sisak Market in the Sisak Municipal Court, seeking payment of a sum of money on account of his investments in certain premises. The applicant stated that in July 1991 he left the town of Sisak fearing for his personal safety. He returned to Croatia in 1996. As a result, he was not able to lodge his claim within the five-year statutory time-limit. In his oral evidence given on 19 February 2002 the applicant said that after having left the town of Sisak, he had first moved to Glina, in the territory of the Krajina, and soon afterwards to the Netherlands. 10. On 30 January 2006 the Sisak County Court dismissed the claim on the grounds that it had become time-barred. It held that the applicant had left the town of Sisak of his own free will, that the town of Sisak had never been occupied and that the courts had been operational there at all times. Therefore, there had been no “insurmountable obstacles” for the applicant to lodge his civil claim within the statutory limitation period. The relevant part of the judgment reads: “... the defendant’s objection concerning the statutory limitation period is well founded since the plaintiff brought his civil action on 26 September 1999 and the lease agreement had ceased on 6 September 1991. Therefore, under section 371 of the Obligations Act ... the plaintiff’s claim had become statute-barred after five years. ... The plaintiff’s submissions under section 383 of the Obligations Act concerning insurmountable obstacles which had prevented him from seeking judicial protection of his rights have not been accepted by this court because he had left the town of Sisak of his own free will and the courts [in Sisak] have been operational at all times.” 11. This judgment was upheld by the Sisak County Court on 8 January 2009. The relevant part of its judgment reads: “Under section 383 of the Obligations Act the statutory limitation period is suspended during the time in which a creditor is unable, owing to insurmountable obstacles, to seek the fulfilment of an obligation [from a debtor]. The conclusions of the first-instance court that the plaintiff had not proved the existence of any such obstacles; that the plaintiff had left the town of Sisak of his own free will since that town had never been occupied by the enemy army during the period relevant for the statutory limitation; and that the courts [in Sisak] functioned at all times; are correct and therefore fully endorsed by this court.” 12. On 20 May 2009 the lower courts’ judgments were upheld by the Supreme Court. The relevant part of its judgment reads: “The [lower] courts assessed all relevant circumstances and dismissed the plaintiff’s claim that there were insurmountable obstacles preventing him from lodging his action and that section 383 of the Obligations Act was applicable. Contrary to the plaintiff’s allegations that he could not go to the town of Sisak and lodge his civil action owing to insurmountable obstacles, the courts established that the courts in the town of Sisak had been operational at all times; that the town of Sisak had not been occupied by the enemy army at any time during the period relevant for the statutory limitation; that the plaintiff had not proved the existence of obstacles preventing him from going to Sisak; and that he had left Sisak of his own free will. Since these are well-known facts, the conclusion of the lower courts that there were no insurmountable obstacles preventing him from lodging the claim in due time ... is correct. This court is also of the opinion that the plaintiff cannot rely on insurmountable obstacles of an objective nature within the meaning of section 383 of the Obligations Act since the town of Sisak was not occupied by the enemy army, none of its citizens has the status of refugee or displaced person and the lodging of a civil action was possible during the entire period of war because the courts remained operational.” 13. The applicant’s subsequent constitutional complaint was dismissed on 5 October 2011. The Constitutional Court endorsed the reasoning of the lower courts.
| 0 |
test
|
001-155006
|
ENG
|
SVK
|
CHAMBER
| 2,015 |
CASE OF YEGOROV v. SLOVAKIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
|
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
6. The applicant was born in 1962 and habitually resides in Krivoj Rog (Ukraine). 7. From 25 June 2002 until 19 September 2013 the applicant was continuously deprived of his liberty in Slovakia, mainly within the scope of detention pending trial on various charges pursued against him, partly in parallel and partly consecutively. His overall deprivation of liberty included the following periods. 8. From 25 June 2002 until 19 May 2005 he was remanded pending trial on several charges, which included what would later be classified as the charge of conceiving, setting up and supporting a criminal and terrorist group (see paragraphs 11 and 35 below). On the latter date the prosecution on that charge was removed to be dealt with in a separate set of proceedings. 9. The applicant’s pre-trial detention in the subsequent period would later be set off against a four-year prison sentence imposed on him for the offence of attempting to legalise the proceeds of a criminal activity. He was released from detention in connection with that offence on 13 July 2010. 10. Immediately after his release from the last-mentioned detention, the applicant’s liberty was again restricted and it later resulted in his being remanded pending trial on the charge of murder, of which he was ultimately acquitted on 27 July 2011. In consequence, he was released from detention on that very day. 11. Following his release on 27 July 2011, the applicant was immediately re-arrested on the same day, and later remanded pending trial on the charge of conceiving, setting up and supporting a criminal and terrorist group (see paragraphs 8 above and 35 below). This term of detention ended with the applicant’s release on 22 February 2012. 12. Upon his release on 22 February 2012, the applicant was immediately re-arrested on the same day, and was later remanded pending trial on another charge of murder. This term of detention ended with the applicant’s release on 17 September 2013. 13. Upon his last-mentioned release, the applicant was immediately transferred to the detention centre for foreigners (záchytný tábor) in Medveďov, where he was detained until his expulsion to Ukraine on 19 September 2013. 14. The applicant’s prosecution on the first charge of murder (see paragraph 10 above) commenced in 2007 while he was still deprived of his liberty within the scope of detention pending trial on the charge of attempting to legalise the proceeds of a criminal activity (see paragraph 9 above). 15. On 6 June 2010 an investigator informed the public prosecution service (“PPS”) that if the applicant’s conviction and sentence for attempting to legalise the proceeds of a criminal activity were to be upheld on appeal ‒ an appeal which was about to be heard ‒ the applicant would be eligible for release because the four-year term of his sentence would soon be fully covered by the term of his detention. It would therefore be advisable to consider lodging an application for the applicant to be detained pending trial on the murder charge, which the PPS subsequently did. 16. Immediately after the applicant’s release from detention in connection with the charge of attempting to legalise the proceeds of a criminal activity, on 13 July 2010, he was taken to the Border and Foreigners Police Department in Bratislava, where a decision was taken ordering his administrative expulsion, a ban from re-entering Slovakia for five years, and detention pending the enforcement of the expulsion order (zaistenie). The applicant was then taken to the detention centre in Medveďov to await implementation of the expulsion order. 17. In the course of the murder trial, a public session (verejné zasadnutie) was scheduled to take place before the Bratislava I District Court (Okresný súd) on 23 July 2010 with a view to examining questions concerning the detention of the applicant. However, in view of the circumstances described in the foregoing paragraph, on 15 July 2010 the public session was cancelled and the applicant was summoned for questioning the following day. 18. On the morning of 16 July 2010 the applicant was seized in the detention centre in Medveďov by police officers who then brought him to the District Court for the questioning that had been ordered. 19. Later in the day of 16 July 2010, the applicant was brought before a Chamber of the District Court for the questioning, immediately after which the District Court ordered a private session (neverejné zasadnutie) with a view to making a decision concerning the applicant’s detention. 20. Following the private session of 16 July 2010, on the same day, the District Court remanded the applicant in detention pending trial on the murder charge. 21. Immediately following the pronouncement of the detention order, on 16 July 2010, which was a Friday, the applicant stated on the record that he wished to lodge an interlocutory appeal and that he would submit the reasons for his appeal upon receiving the written version of the detention order with reasons. The appeal and its reasons were to be submitted to the court of appeal via the first-instance court, that is to say the District Court. 22. On 19 July 2010, which was a Monday, the applicant submitted the reasons for his appeal in writing in the Russian language, stating that he would submit further reasons when the written version of the remand order was served on him. It appears that the applicant’s submission of 19 July 2010 was received at the District Court on 21 July 2010. 23. On the last-mentioned date, that is to say on 21 July 2010, the written version of the detention order was served on the applicant in the Slovak language and, on the same day, the District Court transmitted the case file to the Bratislava Regional Court (Krajský súd) for determination of the applicant’s interlocutory appeal. 24. On 26 July 2010, which again was a Monday, the applicant sent a further written submission in the Russian language, adding reasons to his appeal. It appears that this submission was received at the District Court on 28 July 2010. 25. However, on that day, that is to say on 28 July 2010, the Regional Court determined the applicant’s interlocutory appeal by dismissing it as unfounded. The Regional Court observed at the outset that the applicant had not submitted any reasons for his appeal either orally or in writing. 26. On 25 August 2010 the applicant lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution (Constitutional law no. 460/1992 Coll., as amended). Relying inter alia on Article 5 § 1 of the Convention, he contended that (i) his arrest and bringing before the District Court had been unlawful; (ii) the remand decision had been arbitrary; and (iii) the Regional Court had failed to take account of the reasons for his interlocutory appeal submitted on 19 and 26 July 2010. 27. On 7 December 2010 the Constitutional Court declared the applicant’s complaint inadmissible as being manifestly ill-founded. It acknowledged that any tribunal ruling on matters concerning detention on remand was under a duty to examine carefully all submissions made by the person remanded, but pointed out that the applicant’s submissions of 19 and 26 July 2010 had not been available to the Regional Court when it examined his interlocutory appeal. In addition, matters concerning detention on remand generally require swift determination and courts of appeal were obliged to determine interlocutory appeals in such matters within five working days of the date when the appeal was referred to them for determination. Furthermore, in contrast to case no. II. ÚS 108/08 (see paragraph 50 below), the applicant had been heard at first instance. And lastly, he had been represented by a lawyer, but the latter had taken no steps to ensure the effective assertion of his rights. Thus, in the circumstances, the decision to dismiss the applicant’s interlocutory appeal without examining the reasons for it could not be considered arbitrary. The Constitutional Court’s decision was served on the applicant on 3 February 2011. 28. At around 3.20 p.m. on 27 July 2011, following his acquittal of the first murder charge and release from detention in connection therewith earlier that day, the applicant was re-arrested. At 5 p.m. that day he was served with a document dated 18 June 2003 charging him with the offence of conceiving, setting up and supporting a criminal and terrorist group (see paragraphs 8 and 11 above). 29. On 28 July 2011 the PPS applied for an order for the applicant’s detention pending trial, referring to charges of (i) 14 December 2001 for fraud; (ii) 8 June 2002 for legalising the proceeds of criminal activities; (iii) 18 June 2003 for conceiving, setting up and supporting a criminal and terrorist group; and (iv) 3 July 2003 on another count of legalising the proceeds of a criminal activity. 30. On 29 July 2011 a pre-trial judge at the Specialised Criminal Court (Špecializovaný trestný súd) remanded the applicant pending trial. As regards the specific trial in question, he identified it by reference to the charge of conceiving, setting up and supporting a criminal and terrorist group and the relevant provisions of the Criminal Code (Law no. 140/1961 Coll., as amended). The judge observed that the applicant was a non-national and that, prior to his initial arrest, for more than a year he had not been living at his registered permanent residence, but rather at his girlfriend’s address. However, he had not been registered as living there. Furthermore, the applicant had often been travelling abroad. Accordingly, the judge held that there was no guarantee that, if left at liberty, the applicant would actually continue to live at his girlfriend’s, as he had submitted he would do. The judge also observed that the charges brought against the applicant in the other trials concerned various offences allegedly committed at various times and that even the bringing of these charges had not prevented him from allegedly committing the murder of which he stood accused in one of those trials. In addition, the applicant had already been convicted with final effect of attempting to legalise the proceeds of a criminal activity (see paragraph 9 above). Therefore, his declaration that he had sufficient means to live on was not a sufficient guarantee that he would not continue offending. The judge concluded that there was a need to detain the applicant under Article 71 § 1 (a) and (c) of the Code of Criminal Procedure (Law no. 301/2005 Coll., as amended) in order to prevent his fleeing and continuing to engage in criminal activities. 31. The applicant lodged an interlocutory appeal (i) arguing that his arrest had been unlawful because he had not been informed of the reasons for it; (ii) contesting the charge and the reasons for detaining him; (iii) complaining that he had already been deprived of liberty for more than 9 years; and (iv) complaining that his case demonstrated a pattern of arbitrarily remanding and re-remanding him consecutively on various charges. 32. On 8 August 2011 the Supreme Court (Najvyšší súd) dismissed the applicant’s interlocutory appeal, finding that all formal and substantive requirements for detaining the applicant had been met and that all the applicable time-limits had been observed. 33. On 19 September 2011 the applicant lodged a fresh complaint with the Constitutional Court. Relying mainly on Article 5 §§ 1 and 3 of the Convention, he complained that, on his arrest, he had not been informed of the reasons for it; that the courts had ignored his argument concerning the unlawfulness of his arrest; that his detention was in general arbitrary; and, more concretely, that his case demonstrated a pattern of arbitrarily remanding and reremanding him consecutively on various charges. On the last-mentioned count, he contended in particular that (i) he had been facing the charges pursued against him in the present trial for eight years; (ii) he had been constantly detained for all those eight years; (iii) throughout that period the authorities had had a sufficient time to pursue the case against him properly; (iv) his previous accumulated detention had to be seen as one matter; and (v) there were no adequate grounds for its continuation. 34. On 18 October 2011 the Constitutional Court declared the complaint inadmissible. It held at the outset that it had no jurisdiction to examine any alleged violations in so far as they concerned the first-instance court because, in line with the principle of subsidiarity, such examination lay within the jurisdiction of the court of appeal. The Constitutional Court found that the report concerning the applicant’s arrest contained references to the charges on which he had been arrested and had been signed by the applicant. There could therefore be no doubt as to his having been informed of the reasons for his arrest. Similarly, it was apparent from the Supreme Court’s decision that it had taken note of the applicant’s arguments regarding the lawfulness of his arrest. The fact that the Supreme Court had not given a specific answer on that point was not contrary to the applicant’s rights because it had examined the arguments by implication when dealing with the overall lawfulness of the applicant’s detention. As to the remainder of the applicant’s complaint, the Constitutional Court acknowledged that the applicant’s detention had by then lasted more than nine years in total. However, in terms of the Constitutional Court’s decision, it was necessary to take into account the fact that the contested decision was neither a decision to dismiss his request for release nor a decision to extend his detention. Having taken into account the nature of the contested decision and the reasons behind it, and considering the length of the applicant’s detention in concreto in the case at hand ‒ that is to say only since 27 July 2011 ‒ the Constitutional Court came to the conclusion that, at the given time, the length of the applicant’s detention had not yet reached a point of being unconstitutional. The decision was served on the applicant on 22 November 2011. 35. The applicant’s release on 22 February 2012 (see paragraph 10 above) had been ordered by the Supreme Court on that very day. In its decision, it observed that at the initial stage of the proceedings (see paragraph 8 above), the applicant had been prosecuted for and detained pending trial on various charges, which had then been removed to be dealt with in a separate set of proceedings on 19 May 2005 and that, in the subsequent period, he had been remanded pending trial partly on the same charges. In this connection, it referred in the following terms to the Constitutional Court’s judgment (nález) in unrelated case no. II. US 55/98: “... the removal of one of several prosecuted offences to a separate set of proceedings is not, as such, contrary to the constitutional guarantees of personal liberty of the person facing the charges. Such a course of action on the part of the prosecuting authorities would, however, conflict [with those constitutional guarantees] ... if there were no well-founded reasons for it or if it manifestly served to obtain an extension of the detention beyond the statutory timescale of its duration, or if it otherwise entailed as a consequence the arbitrary keeping of a person in detention.” 36. As regards the present case, the Supreme Court went on to observe: “In the case at hand it is not disputed that there are well-founded reasons for continuing the detention of [the applicant] .... However, on the other hand, it must be observed that in the given case doubts may not be completely dispelled that the keeping of the applicant ... in detention for ten years might appear to be an arbitrary and above all self-serving deprivation of liberty in order to obtain his conviction for serious offences, especially since he has been portrayed as the leader of an illegal mafia-type grouping. Thus, if the duration of the above-mentioned [initial] detention is added to the period of the applicant’s detention after 27 July 201[1] (almost seven months), it becomes apparent that the maximum permissible duration of his detention for [two of the charges] has already been exceeded. At the same time, it must be observed that [the applicant] is being prosecuted for four offences which may not be detached from one another because it is one criminal matter for which he is detained.” 37. The Supreme Court went on to observe that the applicant’s detention after 27 July 2011 resulted from his prosecution for the same offences “for which he had already been detained from 25 July 2002 at least until 19 May 2005, when that matter had been removed to be dealt with in a separate set of proceedings. Within that period and in that matter, [the applicant] was detained for two years and 329 days ... [He] is at present detained in the same matter, which is still at pre-trial stage, (the [statutory maximum duration]) of such detention having been significantly exceeded. However, at the same time, the [statutory maximum duration] of the whole detention has also been exceeded.” 38. Moreover, in the closing part of its decision, the Supreme Court observed that: “The status of the examined matter is even more complicated, however: after the removal to a separate set of proceedings of a part of [the charges against the applicant], no decision has been identified as having regulated the scope of the applicant’s detention. From later decisions it may be understood that the applicant’s detention was linked to his prosecution for the offence classified as murder, which had earlier been a part of the previously joined proceedings. This status must be accepted as reality; if the detention of [the applicant] were linked to his prosecution for the offences which now form the subject-matter of the present proceedings, the maximum duration of [his detention] would have run out substantially earlier.” 39. In a judgment of 19 April 2011 (case no. II. US 93/11), the Constitutional Court found a violation of the “speediness” requirement under Article 5 § 4 of the Convention in the procedure for the review of the lawfulness of the applicant’s detention in the first murder trial. However, his just satisfaction claim was rejected on the ground that he had failed to substantiate it. 40. On 22 August 2012 (case no. I. US 281/2012), the Constitutional Court found a violation of the applicant’s Article 5 rights in the context of the dismissal of his request for release from detention pending trial on the charge of conceiving, setting up and supporting a criminal and terrorist group. The grounds were essentially the same as those established by the Supreme Court in its decision of 22 February 2012 (see paragraphs 35 et seq. above). 41. In a judgment of 5 June 2013 (case no. I. US 47/2013), the Constitutional Court found a violation of the applicant’s Article 5 rights in the context of the dismissal of his request for release from detention pending trial on the second murder charge (see paragraph 12 above). It observed that he had been remanded in detention pending trial on that charge as well as on the previous charge immediately after having been released from the previous detention, which had amounted to a recurring pattern. It was noteworthy that the alleged murder had taken place in 1999, although the applicant had not been charged with it until 2012, despite having been detained as early as 2002. The applicant had been prosecuted for various offences both in parallel and consecutively. The respective statutory provisions concerning the maximum duration of detention could not be interpreted as authorising detention pending trial for the maximum period in relation to each individual charge. Otherwise, as had occurred in the applicant’s case, a person could be detained for the maximum permissible period repeatedly for consecutively levelled charges ad infinitum, which was not justified by any public interest. The Constitutional Court nevertheless dismissed the applicant’s just expedient nor appropriate” (účelné ani vhodné). The written version of the Constitutional Court’s judgment was served on the Trnava Regional Court on 11 September 2013. It was against that court that the complaint was directed and, following the Constitutional Court’s judgment, it eventually ordered the applicant’s release on 17 September 2013 (see paragraph 12 above). 42. The Constitutional Court also found a violation of the applicant’s Article 5 rights in the context of his detention pending trial on the second murder charge ‒ not only on the same grounds as those mentioned above but also on others ‒ in three further judgments of 6 and 7 March 2014 (case nos. IV. US 494/13, IV. US 495/13 and IV. US 561/13). However, noting that the applicant had been released in the meantime, it also cited and endorsed its previous position that it was “neither expedient nor appropriate” to award him any just satisfaction.
| 1 |
test
|
001-163443
|
ENG
|
DEU
|
CHAMBER
| 2,016 |
CASE OF MADAUS v. GERMANY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public hearing)
|
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Nicolas Bratza;Yonko Grozev
|
5. The applicant was born in 1924 and lives in Cologne. His father was a pharmaceutical entrepreneur who had owned property in the Soviet Occupied Zone of Germany which was subject to expropriation measures in 1946 and 1947, after an administrative body classified him as a “Nazi activist”, “Nazi criminal” and “person profiting from the war”. After Germany’s reunification, the applicant’s application for restitution of the property under the Property Act (Vermögensgesetz) proved unsuccessful. 6. In 2006 the applicant initiated proceedings under the Criminal Rehabilitation Act (Strafrechtliches Rehabilitierungsgesetz) on behalf of his late father. He claimed that the expropriation and other measures had a penal character, although his father’s guilt had been determined not by a court but by an administrative body. He submitted a vast number of documents, claiming that the historical background of the measures taken under the Soviet occupation command had to be evaluated anew. In particular, the 1946 and 1947 provisions on which the measures against his father had been taken could now be qualified as criminal prosecution. New research had shown that their objective was to punish individual Germans for alleged wrongdoing. The applicant requested, inter alia, that the 1946 decisions to find his father guilty of being a Nazi and the subsequent decisions to expropriate him and confiscate his personal property and the property belonging to his company be declared contrary to the rule of law and hence void. According to the applicant, the value of his restitution claims amounted to about ninety million euros. 7. On 26 June 2008 the Dresden Regional Court fixed a public hearing for 19 August 2008, as requested by the applicant. 8. On 21 July 2008 the applicant’s lawyers published a press release under the following title: “Turnaround in the assessment of the Communist industrial reform? For the first time the Dresden Regional Court discusses a criminal rehabilitation application at an oral hearing.” In the press release the lawyers explained, in particular, that until that time the domestic courts had seen the objective of the measures in question as motivated by economic policy, that is, having the purpose of modifying the prevailing ownership structure. They presented the fact that the Regional Court had fixed an oral hearing as a potential turning point in domestic case-law and announced that they would explain orally and in detail at the hearing what the so-called “economic reform” had really been about. At the same time they communicated the date, time and place of the hearing. 9. On 8 August 2008 the Regional Court cancelled the hearing foreseen for 19 August and set a time-limit for written procedure ending on 15 September 2008. It found that, according to section 11 § 3, first sentence, of the Criminal Rehabilitation Act, a decision should generally be taken without holding an oral discussion. The date for a hearing, according to section 11 § 3, second sentence, of the Criminal Rehabilitation Act (see paragraph 13 below) had been set to give the applicant the opportunity to illustrate (erläutern) his legal opinion, which conflicted with that of the Regional Court and the Dresden Court of Appeal and was supported by particularly extensive factual submissions. Making use of its margin of appreciation, the Regional Court refrained from holding a hearing since, contrary to its prior opinion, there was no longer any additional benefit to be gained for dealing with the case. In fact, the scheduling of the hearing had been used to create the impression in a press release, also published on the internet, that by calling a hearing the Regional Court had indicated that it was abandoning its settled case-law. Furthermore, the press release had announced that the applicant would use the hearing to “reveal an important part of contemporary history”. This indicated that the hearing was to be used as a public forum. Against this background, the court refrained from holding a hearing. 10. On 24 August 2009, following unsuccessful claims by the applicant that the judges were biased, the Regional Court rejected the applicant’s request. It held that the measures taken against the applicant’s father were not of a penal character. The expropriation measures did not result in further consequences to his detriment. Contrary to the applicant’s submission, nothing indicated that an arrest warrant had been issued in 1947. The applicant’s father’s loss of his electoral rights, his business licence and his personal assets had been a necessary consequence of the expropriation. 11. On 26 November 2010 the Dresden Court of Appeal, without holding an oral hearing, dismissed the applicant’s appeal, fully endorsing the Regional Court’s reasons. It added that the documents submitted proved neither the penal character of the measures in question nor that there had been an arrest warrant. An oral hearing was not necessary as the documents presented were sufficient for the case to be assessed. 12. By decision of 19 November 2013 the Federal Constitutional Court, without providing reasons, declined to consider the applicant’s constitutional complaint, in which he had alleged violations of his right to an effective remedy, his right to be heard and his personality rights (file no. 2 BvR 1511/11).
| 1 |
test
|
001-182871
|
ENG
|
MKD
|
CHAMBER
| 2,018 |
CASE OF LJATIFI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 3 |
Violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens;Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;Armen Harutyunyan;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Ksenija Turković
|
6. The applicant was born in 1991 and lives in Skopje. 7. In 1999 the applicant (eight years old at the time) and her family (parents and three siblings) fled Kosovo and settled in the respondent State, where she has been living ever since. In 2005 she was granted asylum and a residence permit. She entered into a common-law partnership with a Macedonian national, with whom she has three minor children (the children also have Macedonian nationality). Her residence permit was extended each year until 3 February 2014, when the Ministry of the Interior terminated her asylum, holding that she was “a risk to [national] security.” The decision was preceded by an interview at which the applicant, who had been legally represented, had confirmed her family situation and her intention to marry her partner. That the applicant represented a security risk was not discussed at the interview. The decision further stated: “[the applicant] is obliged to leave the respondent State within twenty days of receipt of the final decision.” 8. The applicant, through her lawyer, challenged the decision as arbitrary. She argued that there was no evidence that her presence in the respondent State represented a threat to national security. Furthermore, she had not been given an opportunity to challenge any such evidence. 9. On 3 July 2014 the Administrative Court dismissed the applicant’s appeal and upheld the decision of the Ministry, noting that the latter had obtained a classified written note (службена белешка со назнака за доверлив документ) from the Security and Counter Intelligence Agency (“the Intelligence Agency”) indicating that she represented a threat to national security. The court did not provide any further details regarding that document. It ruled accordingly that the impugned proceedings had been lawful. 10. The applicant’s representative appealed against that decision before the Higher Administrative Court, reiterating the arguments raised previously. She further alleged that the wording used by the Administrative Court implied that there were some documents on which the impugned decision had been based. However, she had not been given an opportunity to have knowledge of or to comment on that evidence. 11. By a decision of 1 July 2015, served on the applicant on 6 October 2015, the Higher Administrative Court dismissed the applicant’s appeal and upheld the Ministry’s decision. The relevant part of the decision reads as follows: “... [The Ministry] decided on the basis of ... classified information obtained from a relevant body (which) proves indisputably that her presence in (the respondent State) represents a threat to its security. The Higher Administrative Court has examined the (applicant’s) allegations ... that information provided by the relevant body within the Ministry of the Interior was not forwarded to her and her representative, but it considers them irrelevant ...” 12. In the proceedings before the Court, the Government submitted a redacted version of the classified note that the Intelligence Agency had sent on 19 September 2013 to the Ministry of the Interior. The relevant parts of the note read as follows: “... following security checks of [the applicant], it has been established that recognition of her asylum status would be a threat to the (national) security of the [respondent State]. It has been established that her (hidden text) ... are perpetrators of tens of crimes (serious thefts, thefts and acts of concealment). The applicant was aware of and supported all crimes committed by her (hidden text) ... She has also been living in a common-law partnership with M.M. in order to obtain the monetary allowance to which she was entitled having been granted asylum. In such circumstances, we are of the opinion that she should not be granted asylum in [the respondent State].” 13. On 11 November 2015 the Ministry granted a request by the applicant to leave the respondent State in order to obtain, as she had stated, documents from the Serbian authorities for marrying her common-law partner in the respondent State. She was allowed re-entry to the respondent State in January 2016, which was one month after the expiry of the timelimit for returning to the respondent State. In February 2016 she contacted the Ministry with a view to submitting the relevant documents.
| 1 |
test
|
001-174992
|
ENG
|
POL
|
CHAMBER
| 2,017 |
CASE OF KĄCKI v. POLAND
| 4 |
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)
|
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1976 and lives in Poznań. 6. On an unspecified date A.R., a member of the political party SelfDefence of the Republic of Poland (“Samoobrona”) sent Gazeta Wyborcza, a daily newspaper, an electronic mail containing information about an alleged “sex scandal” in the party. 7. The following day the applicant, who is a journalist, contacted A.R. on the telephone. After their conversation he informed her that he had recorded the call and that he intended to use the transcript for an article. 8. On 6 December 2006 the applicant published an interview with A.R. in the Gazeta Wyborcza. The interview, entitled “Payment for sex, the choice is yours” (“Płaca ze seks, wybór należy do pani”) concerned the “sex scandal” story which had broken in Poland earlier in 2006. Public figures, including Samoobrona activists, had offered and accepted sexual favours in the course of exercising public functions. A.R. told the newspaper that she had begun working with the party through her contacts with A.K. Initially, she had been unpaid and when she had demanded payment, one of the activists, K.Z., had told her: “I will pay if you go to bed with me” She also said that in July 2004 during a party organised by A.K. a prominent Samoobrona activist, B.S., had offered to find a post for her in a parliamentary deputy’s office – specifically R.C.’s – in return for sexual favours. According to A.R., B.S. was so forward that she had to ask K.S. for help. K.S. then called a taxi to take B.S. home 9. Then the applicant asked A.R.: “Did you get the job?” A.R. replied: “No, the job was given to M.C.’s daughter”. 10. On the same page, to the right of the article, the newspaper quoted three prominent Samoobrona activists referred to in the interview, namely K.Z., B.S. and K.S. They all, denied that there had been any sexual propositions made to A.R. 11. Also on the same page the newspaper published a short interview with A.K. who confirmed that she knew A.R. but had never recommended her for any work. When asked about the “sex scandal” A.K. said: “What are you saying? I have never heard of it. This cannot be true.” 12. On 30 November 2007 M.C., a Member of the European Parliament, lodged a private bill of indictment against the applicant. He demanded that the applicant be charged with defamation. According to the indictment the defamation consisted of the publication of the interview with A.R. in which she said that B.S. could arrange a job for her in M.C.’s office in return for sexual favours. According to M.C. this suggested to readers that he had been involved in the “sex scandal”. He also claimed that he had been defamed in the published interview at the point where A.R. had accused him of nepotism by saying that he had employed his own daughter. 13. On 16 March 2010 the Warsaw District Court ruled the indictment partially accurate: it then discontinued the proceedings for a probationary term of one year and ordered the applicant to pay 1,000 Polish zlotys (PLN – 232 euros (EUR)) to charity and to pay the costs of the proceedings. 14. The District Court found the applicant guilty of the defamation of M.C. with respect to his publication of the statements made by A.R. concerning nepotism (see paragraph 23 below). According to the court the applicant neglected his professional obligations because he did not verify that the job had been offered to M.C.’s daughter. At the trial it became clear that this information could not be accurate because M.C. did not have a daughter. It did not accept the applicant’s argument that he had acted with due diligence because before publication he had sent the text of the interview to A.R. who had accepted its contents and returned it to the applicant without making any objection or comment (autoryzacja). 15. The District Court did not hold that the applicant was guilty of defamation when he had suggested that M.C. had been involved in the “sex scandal”. It found that in this respect the applicant had fulfilled his professional obligations because he had published the statement of B.S., who had denied propositioning A.R. For the above reasons, in the District Court’s view, the average reader should not have had the impression that M.C. was involved in the “sex scandal”. 16. The applicant and M.C.’s lawyer appealed against the firstinstance judgment. 17. On 18 June 2010 the Warsaw Regional Court upheld the challenged judgment, repeating in essence the same reasoning as the District Court. Regarding the applicant’s arguments concerning his right to freedom of expression under Article 10 of the Convention, it noted that “in the light of the journalist’s right to publish critical comments (prawo do krytyki dziennikarskiej), an individual’s right to legal protection of good name and reputation should also be taken into account”. 18. On 3 February 2011 the applicant’s lawyer requested the Ombudsman to lodge a cassation appeal on the applicant’s behalf. 19. On 6 May 2011 the Ombudsman informed the applicant that she had found no grounds to lodge a cassation appeal.
| 1 |
test
|
001-157363
|
ENG
|
POL
|
ADMISSIBILITY
| 2,015 |
ZAMET - BUDOWA MASZYN SPÓŁKA AKCYJNA v. POLAND
| 4 |
Inadmissible
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev
|
1. The applicant, Zamet - Budowa Maszyn Spółka Akcyjna, is a Polish joint stock company with its registered seat in Tarnowskie Góry. It was represented before the Court by Mr J. Pałka, a lawyer practising in Gliwice. 2. 3. In 2005 the applicant signed a framework contract with ING Bank Śląski S.A. (“the bank”) for currency option (opcje walutowe). The contract contained a clause stating that in case of disagreement the parties would refer their case to the Court of Arbitration by the Polish Bank Association (zapis na sąd polubowny). 4. On 17 July and 8 August 2008 the applicant signed with the bank two agreements on the basis of the framework contract. However, since the agreements in question were entered into by telephone by one of the employees of the applicant who apparently had no authorisation to act on its behalf, the applicant decided to withdraw from them and, on 2 February 2009, it made an appropriate statement to the bank. The bank, however, did not accept the statement and continued to demand payments from the applicant as if the agreements were still binding. 5. The applicant then made a request to the Gliwice Regional Court to apply an interim measure and secure its claims against the bank. 6. On 24 February 2009 the Gliwice Regional Court granted the request and ordered the bank, among other things, to stop executing the transactions of 17 July and 8 August 2008. 7. Subsequently, the applicant lodged two civil lawsuits against the bank with the civil court, and not with the Court of Arbitration, for ascertainment of non-existence or for annulment of the two transactions referred to above. 8. On 25 May 2009 the Gliwice Regional Court granted the applicant’s motion. The Court refused the argument relied on by the bank, that the civil avenue had been excluded in the present case because of the clause contained in the framework contract according to which all disputes between the parties should be put before the Court of Arbitration. The Court referred to Article 1157 of the Code of Civil Proceedings stipulating that only matters which may be settled by way of a friendly settlement could be put before the Court of Arbitration. The Court considered that the question of declaring a contract null and void or declaring its existence or non-existence could not be dependent on the parties’ will and therefore the case in question was not appropriate for the Court of Arbitration. The court further found that the arbitration clause contained in a framework contract should be found ineffective because it did not secure the equality of arms in the proceedings before the Court of Arbitration. In this respect the court noted that the Court of Arbitration had been set up by the Polish Bank Association, of which the defendant bank was a member and the applicant company – not being a bank – could not become a member. The Polish Bank Association was an institution which normally should support its members. The court also analysed the provisions of the Rules of the Court of Arbitration and came to the conclusion that they did not properly secure the equality of arms between the parties. 9. The defendant bank appealed against the decision of 25 May 2009. 10. On 25 August 2009 the Katowice Court of Appeal gave a decision and dismissed the arguments relied on by the first-instance court. It quashed the challenged decision and rejected the lawsuit finding the clause in the framework contract valid and considering that the dispute between the parties should have been examined by the Court of Arbitration. 11. The applicant lodged a cassation appeal with the Supreme Court. 12. On 18 June 2010 the Supreme Court dismissed the cassation appeal as regards the first lawsuit. The court considered that the Regional Court had relied on the wrong provisions of the Code of Civil Proceedings, because at the time when the parties signed the framework contract, other provisions were still in force. These provisions did not allow for the referral of a dispute to the Court of Arbitration depending on whether a particular case was appropriate for a friendly settlement or not. The decisive element was the parties’ capacity to take on obligations within the framework of a particular legal relation. Relying on the interpretation of the relevant provisions made in its own judgment of 21 May 2010 the Supreme Court refused to accept the applicant’s argument that the dispute in question could not be settled by the Court of Arbitration. It found that what was decisive was the parties’ capacity to reach, also in the form of a friendly settlement, a resolution of the dispute which had arisen between them. According to the Supreme Court the source of the plaintiff’s claims was the right which could be freely shaped by the parties and therefore the dispute in question could also be settled independently by the parties. It follows that the arbitration clause was valid and the case at hand was appropriate for a Court of Arbitration. 13. The Supreme Court also referred to the applicant’s arguments as regards the alleged lack of impartiality before the Court of Arbitration. It held that the fact that the Court of Arbitration had been created by the Polish Bank Association had not automatically rendered the Court dependent on banks and that in case of justified doubts as regards impartiality of particular judges the applicant could make use of the relevant provisions of the Code of Civil Proceedings concerning exclusion of judges or claims for declaring the Court of Arbitration’s judgment null and void. 14. On 23 November 2010 the Supreme Court, relying on its own analysis of the applicant’s previous cassation appeal, refused to examine the applicant’s cassation appeal as regards the second lawsuit finding that the case did not raise any new issue. 15. The relevant provisions concerning submitting disputes to courts of arbitration are contained in the Code of Civil Proceedings (“the Code”). 16. Article 697 of the Code at the relevant time read as follows: “Within the limits of their ability to making obligations the parties may decide that all disputes for pecuniary rights be submitted to the court of arbitration except for disputes for maintenance and disputes concerning labour law.” 17. Article 1157 of the Code reads, in so far as relevant, as follows: “If a special provision does not stipulate otherwise, the parties may decide to put before the court of arbitration a dispute concerning pecuniary or non-pecuniary rights which may be the subject of a friendly settlement.” 18. Article 1161 § 2 of the Code reads, in so far as relevant, as follows: “Clauses providing that disputes be submitted to the court of arbitration which infringe the rule of equality of both parties shall be considered ineffective. This concerns, in particular, granting a right to submit disputes to the court of arbitration or to a common court to one party only.” 19. The judgments and decisions of courts of arbitration are subject to review by the domestic courts under certain conditions. 20. According to Article 1205 of the Code an applicant may lodge a complaint with the Court and ask that the judgment of the court of arbitration issued in Poland be quashed, in particular, when the arbitration clause had been invalid, when a party to the proceedings had been deprived of the possibility to defend himself or when there had been other important procedural shortcomings in the relevant proceedings, listed in details in Article 1206 of the Code. The court shall also quash a judgement given by the court of arbitration if it finds that the particular case could not have been settled by the court of arbitration or if the judgment of the court of arbitration contravenes against basic rules of the legal order in the Republic of Poland (public order clause). 21. According to Article 1212 of the Code any judgment given by the court of arbitration, irrespective of the state in which it was issued is enforceable only after having been recognised by the domestic court or after having been appended with an enforceability clause. The court will refuse to recognise a judgment or to append an enforceability clause if a particular case could not have been examined by a court of arbitration or because of the public order clause referred to above.
| 0 |
test
|
001-169913
|
ENG
|
POL
|
ADMISSIBILITY
| 2,016 |
GAJEWSKI v. POLAND
| 4 |
Inadmissible
|
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
1. The applicant, Mr Piotr Kazimierz Gajewski, is a Polish national, who was born in 1965 and lives in Ostróda. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1989 the applicant married A. They have three children, born in 1990, 1995 and 1996. 5. In 2008 the applicant began a relationship with J.Z., his supervisor at work. In November 2008 the applicant moved out of the flat he had lived in with his family. At the request of his children he attempted to reconcile with A. and later moved back in for a week. However, he subsequently decided to continue his relationship with J.Z. 6. Since November 2008 he has been living with J.Z., her three children and her grandson. 7. On 23 April 2009 A. applied for child maintenance. 8. On 10 July 2009 the Ostróda District Court ordered the applicant to pay 750 Polish zlotys (PLN) per month for his three children (approximately 187 euros (EUR)). 9. On 24 August 2008 the applicant filed a petition for divorce. He asked the court to declare that both parties were at fault for the breakdown of the marriage. 10. On 23 March 2010 the Elbląg Regional Court refused to grant the divorce. It found that A. was a very good mother and wife and was not at fault for the breakdown of the marriage. She still loved her husband and was ready to forgive him for his affair. The court stressed that the applicant was the only person responsible and at fault for the breakdown of his marriage, and referred to the fact that his wife had not agreed to a divorce. It was decided that a divorce was not legally permitted in their case. Lastly, the court referred to the fact that the applicant’s two children were still minors and held that a divorce would not be in their best interests. 11. The applicant appealed. 12. On 7 September 2010 the Gdańsk Court of Appeal upheld the firstinstance judgment, holding that the applicant’s wife was not at fault for the breakdown of the marriage. The judgment subsequently became final. A cassation appeal in the Supreme Court was not available. 13. On 27 July 2011 A. initiated a new set of proceedings. She applied to the Elbląg Regional Court for a formal separation from the applicant. She also sought the payment of child maintenance. 14. In a written reply of 25 September 2011 the applicant did not agree to a separation and asked the court to declare the parties divorced. 15. During a hearing of 12 October 2011 A. agreed to a divorce at the applicant’s exclusive fault. The applicant declared that he was at fault and agreed to the arrangements for child maintenance proposed by A. 16. Consequently, by a judgment of 12 October 2011 the marriage was dissolved. Neither party appealed. The judgment was final.
| 0 |
test
|
001-183560
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF KOLOSYUK 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 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
|
Alena Poláčková;Dmitry Dedov
|
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
|
001-174642
|
ENG
|
GEO
|
COMMITTEE
| 2,017 |
CASE OF POGHOSOV v. GEORGIA
| 4 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Nona Tsotsoria;Síofra O’Leary
|
5. The applicant was born in 1986 and lives in Tbilisi. 6. The applicant was arrested on suspicion of murder on 16 April 2005. On 11 January 2007 the Tbilisi City Court convicted the applicant as charged and sentenced him to life imprisonment. The conviction was upheld on appeal by the Tbilisi Court of Appeal on 12 May 2007. The Supreme Court of Georgia rejected an appeal on points of law by the applicant as inadmissible. 7. According to the applicant, prior to the initiation of the criminal proceedings against him and his detention, he had no major medical problems and was in good health. 8. Subsequent to his arrest, the applicant was placed in Tbilisi Prison no. 5 from where he was transferred to Tbilisi Prison no. 1 and then back to Tbilisi Prison no. 5 sometime in February 2006. 9. According to the applicant, in October 2006 his state of health started to deteriorate. He had a fever and was coughing. He lost weight and felt extremely weak. The applicant alleged that he voiced his medical concerns with the prison administration and requested a medical check-up, however in vain as he was not provided with any medical assistance. He failed to submit a copy of any of the complaints in this connection. 10. On 11 January 2007 the applicant, after having complained to the prison administration, was seen by a prison doctor who prescribed him antibiotics. Two weeks later, on 28 January 2007, he was transferred to the prison hospital, where he underwent various medical examinations. On 2 February 2007 he was diagnosed with tuberculosis of the right lung MGB (+) positive, further complicated by left-arm spontaneous pneumothorax. On 5 February 2007 the applicant was placed on the DOTS programme (Directly Observed Treatment, Short-course – the treatment strategy for the detection and cure of TB recommended by the World Health Organisation) and started receiving conventional, first-line anti-TB medication. In addition, he was provided with vitamins. 11. On 8 October 2007 the applicant completed the course of treatment. However, a medical examination of 18 October 2007 revealed a recurrence of the tuberculosis. On 30 October 2007 the applicant was enrolled in the second phase of anti-TB treatment which he successfully completed on 6 August 2008. On 26 August 2008 the applicant underwent another bacteriological sputum smear, which was negative, that is to say it showed no evidence of the TB microbacterium. 12. According to the case file, since then the applicant had repeatedly undergone sputum tests. The latest medical examination of which the Court was informed, on 29 February 2012, revealed that the applicant’s TB was in a non-active phase. Thus, he did not require any anti-TB treatment.
| 0 |
test
|
001-146773
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF KONOVALOVA v. RUSSIA
| 3 |
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicant was born in 1980 and lives in St Petersburg. 6. On the morning of 23 April 1999 the pregnant applicant, after her contractions had started, was taken by ambulance to the gynaecology ward of the S. M. Kirov Military Medical Academy Hospital. 7. Following her admission, she was handed a booklet issued by the hospital which contained, among other things, a notice warning patients about their possible involvement in the clinical teaching taking place at the hospital. The notice read: “We ask you to respect the fact that medical treatment in our hospital is combined with teaching for students studying obstetrics and gynaecology. Because of this, all patients are involved in the study process.” 8. The exact time at which the booklet was handed to her is unclear. 9. At 9 a.m. the applicant was examined by a doctor, who established that she was forty weeks pregnant and that there were complications with the pregnancy because she had mild polyhydramnios (excess amniotic fluid). The doctor noted that the applicant’s contractions appeared premature and that she was suffering from fatigue. In view of these symptoms, she was put in a drug-induced sleep, which lasted from 10 a.m. to 12 noon. 10. At 2 p.m. the applicant’s doctor again established that the contractions had been premature and prescribed her anti-contraction medication to suppress premature labour. 11. Between 2 and 10 p.m. the applicant underwent various medical examinations. The doctors found no other pathologies except that she had been having irregular contractions. 12. According to the applicant, at around 3 p.m. she was informed that her delivery was scheduled for the next day and that it would be attended by medical students. 13. At 10 p.m. the applicant was put in a drug-induced sleep. During the night her condition was monitored by doctors. 14. At 8 a.m. the next day, after the applicant had been woken up, the frequency and intensity of her contractions increased. The doctors found traces of meconium in her amniotic fluid, which indicated there was a risk that the foetus was suffering from hypoxia. The applicant was prescribed medicine to improve uteroplacental hemodynamics (blood flow to the placenta). 15. At 9 a.m. the doctors carried out a cardiotocography examination and described the state of health of both the applicant and her foetus as satisfactory. They also decided to conduct a vaginal delivery. According to the applicant, in the delivery room she objected to the presence of medical students at the birth. 16. The birth lasted from 10 to 10.35 a.m. in the presence of doctors and medical students, who had apparently received some information about her state of health and medical treatment. During the labour the doctors performed an episiotomy (incision). The child was diagnosed with light asphyxia. At 1 p.m. the child was moved to a special care baby unit and remained there until 13 May 1999, the date the applicant took her home. 17. On 10 August 1999 the applicant lodged a complaint with the hospital, seeking compensation for non-pecuniary damage allegedly caused as a result of the measures aimed at delaying the birth. 18. In response, the hospital administration carried out an internal inquiry. The results of were set out in a report dated 14 August 1999, which confirmed that the delivery had been conducted in line with the relevant standards, and that upon the applicant’s admission she had been notified of the possible presence of the public during her labour. The relevant part of the report read as follows: “... fourth-year medical students were present in the delivery room during [the applicant’s] labour, as [per] their timetable for 24 April 1999. This could not have had any negative impact on the outcome of the birth. Management of the delivery was performed by [the head of the Maternity Department]. On admission [the applicant] was notified of the possible presence of the public during her labour. Obstetricians did not intentionally delay the birth. The treatment was carried out in the best interests of the mother and foetus in accordance with the particular circumstances of the applicant’s delivery...” 19. On 19 August 1999 the hospital dismissed the applicant’s request, stating that there had not been any mistakes in the management of the birth. 20. On 27 July 2000 the applicant sued the hospital in the St Petersburg Vyborg District Court ("the District Court"). She sought compensation for non-pecuniary damage and a public apology for the intentional delay to her labour and the non-authorised presence of third parties during the birth. 21. On 4 September 2002 the District Court ordered an expert examination of the applicant’s case. Experts were requested to examine whether or not the applicant’s delivery had been intentionally delayed and whether or not her labour had been affected by the presence of the students. 22. In their report dated 27 September 2002 the experts concluded that: “[The hospital] provided [the applicant] with medical care without any shortcomings capable of deteriorating the health of mother or child. The medical treatment was adequate and carried out timeously. After [the applicant’s admission] she had been carefully examined by doctors, who had made the correct diagnosis and prepared an adequate plan for the birth. Owing to the prematurity of [the applicant’s] contractions and her general fatigue, the prescription of a drug-induced sleep should be considered an appropriate measure. The subsequent treatment [for] the premature contractions was necessary... Childbirth is stressful for every woman. The presence of [the hospital’s] medical students, even at the second stage of delivery, when the pregnant woman was bearing down, could not have affected management of the labour. The delivery could only have been adversely affected at the first stage. During the bearing down phase, a pregnant woman is usually focused on her physical activity. The presence of the public could not adversely affect her labour. Medical documents show that it was impossible to delay the delivery at the second stage, the stage of unintentional bearing down. The documents in the [applicant’s] case file contain no evidence to confirm that the birth was intentionally delayed with a view to arranging a study of this case by medical students.” 23. On 25 November 2003 the District Court rejected the applicant’s claim. Relying on the above-mentioned expert report, it held that the quality of the applicant’s treatment at the hospital had been adequate. It further noted that the domestic law, in particular, the Health Care Act, in force at the time, did not require the consent of a patient to the presence of medical students in writing. It also established the fact that the applicant had been informed of her involvement in the study process beforehand, as she had received the hospital’s booklet containing an explicit warning about the possible presence of medical students during her treatment. The District Court dismissed her argument that she had objected to the presence of the public during the birth as unsubstantiated by accepting the oral submission of her doctor that no such objection had been made. The court did not verify the doctor’s statements in this respect by questioning other witnesses and did not refer to any other evidence in connection with the issue. It concluded that the hospital doctors had acted lawfully and had not caused her any nonpecuniary damage. 24. The relevant part of the judgment reads as follows: “... The applicant lodged a claim seeking compensation for non-pecuniary damage ... [She] alleged that the birth of her child had been intentionally delayed to arrange for a public procedure in the presence of medical students. [She] stated that the demonstration of her labour, which had been carried out without her consent, had caused her physical and psychological suffering and violated her rights. She stated that the defendant should pay her RUB 300,000 in compensation for non-pecuniary damage. The representatives of [the hospital] objected to the claim. They stated that the [applicant] had been aware of the study process in [the hospital] before she had been admitted there ... They further argued that [she] had received adequate and timely medical treatment ... [B.], a doctor who assisted [the applicant] during her labour stated while being questioned ... [in] court that the medical care had been provided in line with the expected standards and without delay. The applicant did not make any complaints about the quality of [her] medical care. [B.] also submitted that it was impossible to delay labour. According to her, the presence of students lasted only a few minutes. The students’ curriculum provided that they had to take part in doctors’ rounds and the medical treatment of patients... In accordance with Article 54 of the Health Care Act, students of secondary and higher medical educational institutions are allowed to assist in the administration of medical treatment in line with the requirements of their curriculum and under the supervision of medical personnel. The relevant rules are to be set forth by the Ministry of Health of Russia. Articles 32 and 33 of the Health Care Act provide that such medical interventions may not be performed without a patient’s consent, which must be confirmed in [writing]. The court finds that the mere presence of [the hospital’s] students in the delivery room cannot be construed as a medical intervention within the meaning of Articles 32 and 33 of the Health Care Act. As can be seen from the case file documents, ambulances do not usually take their patients to [hospital]. [The applicant] was taken to [the hospital] because her husband served in the [army]. According to [the applicant’s] statements, she was aware of her possible involvement in the study process (see the booklet). The case file contains no evidence which could support the allegations that she had objected to the presence of the public during the delivery. Taking into account the circumstances of this case, the court sees no grounds to find the [hospital’s] doctors guilty of inflicting any non-pecuniary damage or physical or moral suffering on the applicant. Accordingly, [the hospital] is under no obligation to pay any compensation [to her] ...” 25. On 24 May 2004 the St Petersburg City Court upheld the District Court’s judgment on appeal.
| 1 |
test
|
001-173496
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF ZHIKHAR AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
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Dmitry Dedov;Luis López Guerra
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3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-146413
|
ENG
|
HUN
|
COMMITTEE
| 2,014 |
CASE OF P.G. 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;Peaceful enjoyment of possessions)
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András Sajó;Helen Keller;Robert Spano
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6. The applicant was born in 1952 and lives in Budapest. 7. In 2006 the applicant concluded an employment contract with a State-owned financial institution. His contract was amended in 2009 stipulating, in case of ordinary dismissal, severance payment equal to one month’s salary and remuneration corresponding to a notice period of eight months. 8. On 22 June 2010 the applicant’s employment was terminated by mutual agreement. Under this agreement, on 25 June 2010 his former employer paid him, after taxes, a net amount of 17,994,127 Hungarian forints (HUF) (approximately 58,800 euros (EUR)), amounting to seven 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 14,162,433 as special tax, until 20 May 2011.
| 1 |
test
|
001-146770
|
ENG
|
SVK
|
CHAMBER
| 2,014 |
CASE OF ĎURĎOVIČ AND TRANČÍKOVÁ v. SLOVAKIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
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Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
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6. The applicants are husband and wife. Mr D. Ďurďovič was born in 1942 and lives in Hodonín, the Czech Republic. Ms M. Trančíková was born 1939 and lives in Bratislava. 7. On 2 October 1997 the applicants brought a claim in the Stará Ľubovňa District Court, alleging that they were the owners of real property which had been included in the assets of an insolvent company. 8. On 16 August 2006 the District Court dismissed the claim. With reference to the documents before it and judicial decisions delivered earlier the court established that the property in question had been transferred to the company which had later become insolvent. 9. In an appeal the applicants argued, in particular, that the first-instance court had failed to take evidence, as suggested by them, with a view to establishing that the property had not actually been transferred to the company. They also maintained that the case should have been assigned to a judge dealing with civil cases instead of a judge deciding commercial disputes. 10. On 24 April 2008 the Prešov Regional Court upheld the firstinstance court’s judgment. It found that the applicants had failed to show that the property had been erroneously included in the assets of the insolvent company in the context of the insolvency proceedings. 11. On 9 July 2008 the applicants lodged an appeal on points of law. They argued that there had been shortcomings in the proceedings before the appellate court which rendered the appeal on points of law admissible pursuant to Article 237 (a), (d) and (f) of the Code of Civil Procedure. 12. In particular, they alleged that the appellate court had determined the case without hearing the parties and establishing the relevant facts. Earlier consent they had given for the appellate court to proceed with the case in their absence at the hearing of 24 April 2008 did not mean that they accepted the determination of the merits without the parties having been heard. The applicants further argued that the case had been dealt with as a commercial dispute, whereas it should have been determined by judges dealing with civil cases. 13. On 30 November 2009 the Supreme Court rejected the appeal on points of law. It held that the reasons for its admissibility as invoked by the applicants could not be accepted. In particular, the Supreme Court noted that the applicants had notified the Regional Court that they would not be appearing on 24 April 2008, and that they had agreed with the case proceeding in their absence. The fact that the appellate court had not quashed the first-instance court’s judgment as requested by them could not affect the position. 14. The Supreme Court further held that in the proceedings complained of, the situation described in Article 237 (a) of the Code of Civil Procedure did not exist, and that the applicants had not shown that a final decision on the matter had been given earlier for the purposes of Article 237 (d) of the Code of Civil Procedure. 15. On 8 March 2010 the applicants complained of a breach of Article 6 § 1 of the Convention in the proceedings leading to the District Court’s judgment of 16 August 2006, the Regional Court’s judgment of 24 April 2008 and the Supreme Court’s decision of 30 November 2009. 16. For reasons invoked in their appeal and appeal on points of law, they complained that their right to a fair hearing by a tribunal established by law had been breached. They also complained that the Supreme Court had not allowed them to respond to the defendants’ comments on their appeal on points of law. 17. The Constitutional Court declared the complaint inadmissible on 23 September 2010. As the District Court’s judgment had been reviewed by the Regional Court upon appeal, the Constitutional Court held that it did not have the power to examine the alleged shortcomings in the first-instance proceedings. 18. As to the Regional Court’s judgment, the applicants had failed to submit their complaint within the statutory time-limit of two months. The fact that they had sought redress by means of an appeal on points of law could not affect the position, as the Supreme Court had rejected that remedy as inadmissible. 19. Finally, as to the cassation proceedings, the Constitutional Court found no evidence of unfairness in the way the Supreme Court had dealt with and decided on the applicants’ appeal on points of law. Its failure to let the applicants comment on the other party’s observations on it had not rendered the proceedings unfair in the circumstances.
| 1 |
test
|
001-164003
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,016 |
S.C. RED CREDIT SRL v. ROMANIA
| 4 |
Inadmissible
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András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
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1. The applicant company, SC Red Credit SRL, was a Romanian legal entity based in Constanța, founded in 2002. It was initially represented before the Court by its administrator, V.D. From 2013, after the case was communicated to the Government, submissions in respect of the case were made by Ms L. Memet, a legal adviser practising in Constanța. 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. The applicant company was authorised to operate as a jewellery pawnbrokers. 5. According to the Single Control Register, on 25 September 2007 the applicant company had gold stock weighing 3,624 grams. 6. On 26 September 2007 the Constanța Tax Agency (“the CTA”) and the Constanța Consumer Protection Agency (“the CCPA”) carried out an inspection of the activities of the applicant company and other companies sharing the same commercial space. 7. On the same date the CCPA produced an inventory report of the applicant company’s jewellery stock which had been on display for sale. The report was drawn up in the presence of a representative of the applicant company, who had stated that some of the jewellery had been sold at different prices depending on quality. 8. On 3 October 2007 the CCPA produced a contravention report fining the applicant company 7,000 lei (RON – approximately 2,100 euros (EUR)) because on 26 September of that year it had displayed gold jewellery for sale without a licence to sell precious metals, alloys or stones. In addition, it ordered that the gold jewellery that had been on display for sale, which weighed 2,527 grams and was worth RON 111,683 (approximately EUR 33,140), be confiscated. 9. According to the contravention report, the CCPA had cooperated with the Constanța Tax Agency (“the CTA”) to produce it. 10. The representative of the applicant company who signed the contravention report objected to it on the grounds that the measure taken had been unjust. 11. The applicant company challenged the report of 3 October 2007 in the domestic courts. 12. On 4 July 2008 the Constanța District Court allowed the applicant company’s action, set aside the report of 3 October 2007 and ordered the return of the confiscated jewellery. It held that according to the European Court of Human Rights’ (“the Court”) case-law, proceedings seeking to challenge contravention reports fall under the criminal head of Article 6 of the European Convention of Human Rights (“the Convention”) and therefore the domestic authorities had to comply with the procedural guarantees set out in that Article with regard to criminal proceedings, including the right to be presumed innocent. The court further held that the fine had been imposed on the applicant company under general legal provisions and had been intended as a punishment to deter it from reoffending. Consequently, the burden of proof with regard to the applicant company’s guilt was on the CCPA. However, the agency had not submitted any evidence which proved the applicant company’s guilt. 13. The CCPA lodged an appeal on points of law (recurs). 14. By a final judgment of 23 December 2008 the Constanța County Court allowed that appeal, quashed the judgment of the lower court and upheld the report of 3 October 2007. It held that according to the documents available, on 26 September 2007 the applicant company had only been authorised to hold precious metals. However, it had only obtained authorisation to sell them on 2 October 2007. Moreover, according to the inventory report signed by the applicant company’s representative without any objection, the report had concerned the items which had been on display for sale. Also, according to the Court’s case-law, the contravention proceedings had to comply with the procedural requirements provided for under the criminal head of Article 6 of the Convention, which concerned both the rebuttal of the right to be presumed innocent and a relative presumption of truth in favour of the contravention report drafted by a State authority following its own perception of the events. Consequently, the burden of proof would have been on the State authority which had drafted the contravention report and the report could have been set aside only if the State authority’s representatives had not been present when the contravention had happened and it had failed to prove the statements made in the report. But the representatives of the said authority had been present when the contravention had been committed and the report had reflected their own perceptions. The report therefore had to be presumed to reflect the truth and the burden of proof had been reverted to the applicant company in order to rebut that presumption. 15. The court further held that in the inventory report the applicant company’s representative had stated that some of the jewellery had been sold at different prices depending on quality. Furthermore, the contravention report had been signed by the applicant company’s administrator, who had objected to it on the grounds that the measure taken had been unjust, but had not contested the fact that he had been selling jewellery. The contravention report had been lawful and had contained all the lawfully required information. Moreover, the contravention and inventory reports contained similar information about the quantity and value of the items mentioned in them and had been signed by both parties without any objection in this respect. Furthermore, these inconsistencies would not have rendered the contravention report null and void and the applicant company had not proven that it had incurred damage that could have been remedied solely by setting aside the report. Furthermore, absence from the contravention report of information that the fine could have been paid immediately or within forty-eight hours had not rendered the report unlawful. 16. Lastly, the court held that all of the reasons outlined above rendered the applicant company’s argument that the contravention had not existed inadmissible, because it had never intended to sell the jewellery that it had been holding. 17. On 10 September 2009 the applicant company signed a merger by acquisition (fuziune prin absorbție) with another company, namely SC IFN Master Credit SRL. They agreed, inter alia, that the latter company would acquire the applicant company that day and take over the applicant company’s assets and liabilities. V.D. was an associate of SC IFN Master Credit SRL. 18. On 28 September 2010 the applicant company was struck off (radiată) the Constanța Register of Commerce following the merger. 19. On 1 October 2013 Ms Memet submitted to the Court a power of attorney signed by the former administrator of the applicant company authorising her to represent it. 20. In 2014 SC IFN Master Credit SRL changed its name to S.C. Master Credit Stand-By SRL and then to SC Master C. Stand-By SRL. 21. In January and March 2014, part of the observations on the admissibility and merits of the case were submitted by Ms Memet in a document headed “SC Master Credit Stand-By SRL v. Romania”. She did not submit within any of the time-limits allotted by the Court a power of attorney or any other document authorising her to represent SC IFN Master Credit SRL, SC Master Credit Stand-By SRL or SC Master C. Stand-By SRL. Furthermore, neither she nor the companies submitted within the relevant time-limits any documents signed directly by any of the companies themselves or by V.D. expressly stating that they wished to continue the application. “Carrying out unauthorised operations with precious metals and stones is a contravention punishable by a fine of 5,000 [EUR 1,515] to 10,000 lei [EUR 3,030] and by confiscation of the goods subject to the contravention.” ...” 22. The relevant legal provisions concerning the amendments to the legal rules applicable in respect of legislation concerning contraventions are set out in the case of Anghel v. Romania (no. 28183/03, §§ 35-39, 4 October 2007). 23. Article 250 of Law no. 31/1991 on commercial companies provided, inter alia, that following a merger the assets and debts of the acquired company were transferred to the acquiring company in accordance with the terms of the merger plan. 24. Rule 47 § 7 of the Rules of Court (former Rule 47 § 6) provides that applicants shall keep the Court informed of any change of address and of all circumstances relevant to the application.
| 0 |
test
|
001-155837
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,015 |
RAMZI v. ROMANIA
| 4 |
Inadmissible
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Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
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1. The applicant, Mr Yanis M.M.A. Ramzi, is a Jordanian national, who was born in 1974 and lives in the United Arab Emirates. He was represented before the Court by Ms M. Stoica Josan, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant entered Romania in 1993 in order to follow university studies in Iaşi. In 1999 he moved to Bucharest, where he worked as salesman in a small store. 5. In September 2002, during a search conducted at the applicant’s flat, the police found 20.08 grams of cannabis and 0.08 grams of opium. On 3 December 2002 the Bucharest County Court convicted the applicant of possession of illegal drugs for personal use and sentenced him to two years’ imprisonment. The court also ordered the applicant’s expulsion upon completion of his sentence. In the course of the criminal investigation C.C., the applicant’s girlfriend and a Romanian citizen, was heard as witness. She declared that she had known the applicant for three years and that they had a son together, but she did not live with him. She also stated that he was a decent person and a good father who helped her raising their son. She explained that she had a key to his flat, where she would go once every two weeks or so, depending on the problems she encountered with her son. The applicant did not appeal against the judgment of 3 December 2002. 6. On 3 February 2004, after the applicant had finished serving his sentence, the Aliens Office within the Ministry of Interior, taking into account the applicant’s criminal conviction and based on the provisions of Article 102 of the Emergency Ordinance No. 194/2002 on the status of aliens, issued an order prohibiting him from entering Romania for a period of ten years. The same day, the applicant signed the order, thus acknowledging its receipt. He then left Romania voluntarily. 7. On 7 March 2004 the applicant married C.C. in Jordan. On 1 July 2004 the Slobozia District Court granted a request submitted by C.C. and established the applicant’s paternity of her child. 8. In 2005, the applicant requested the reduction of the ten-year period laid down in the order of 2004. He based his request on an amendment to Emergency Ordinance No. 194/2002 introduced in November 2004, which allowed for a fifty per cent reduction in the term of a prohibition on entering Romania to be applied to illegal aliens who were married to a Romanian citizen or had a child of Romanian citizenship. 9. On 14 February 2005 the Aliens Office replied to the applicant that the new amendment invoked by him did not apply to aliens who had committed crimes in Romania. Moreover, the applicant was informed that the amendment in question had come into force after he had already been expelled from Romania and it could not be applied retroactively. 10. On 5 May 2005 the applicant lodged a complaint before the administrative court against this reply. He requested the courts in his case to apply the more favourable provisions introduced by the new amendment to Emergency Ordinance No. 194/2002. Firstly, he argued that under amended Article 102 (2) of the above-mentioned ordinance he would have the right to a fifty per cent reduction in the term of his prohibition on entering Romania because he had a wife and child who were Romanian citizens. Secondly, he argued that the length of the ban on entering Romania could also be reduced to three years as provided by the newly adopted provisions in cases of aliens who had committed crimes. Lastly, the applicant alleged that the initial measure imposed in his case and the letter of 14 February 2005 rejecting his request for a reduction of the ban breached his right to family life as guaranteed by Article 8 of the Convention since he had a child in Romania who was still a minor. 11. On 19 November 2005 the Bucharest Court of Appeal rejected the applicant’s complaint, reasoning that civil law did not apply retroactively and he could therefore not benefit from the more favourable provisions of Emergency Ordinance No. 194/2002 since they had been adopted after his expulsion. The court pointed out that the applicant had not contested the order of 3 February 2004 setting forth the prohibition on entering Romania. It further held that Article 8 of the Convention had not been breached since the measure adopted in the applicant’s case was provided for by law, pursued the legitimate aim of preserving public order and protecting the rights and liberties of others, and had been applied because of the applicant’s criminal conviction. 12. The applicant’s appeal on points of law (recurs) against this judgment was rejected with final effect by the High Court of Cassation and Justice on 13 December 2006. The High Court, like the lower court, pointed out that the applicant had not contested the initial measure of 3 February 2004 prohibiting him from entering Romania. It further held that the lower court had correctly ruled that the new amendments to Emergency Ordinance No. 194/2002 did not apply retroactively. The High Court also held that the applicant’s allegations of a breach of his right to family life guaranteed by Article 8 of the Convention were ill-founded since he had married and had his paternity established after the issuance of the ban on his entering Romania. Moreover, the High Court observed that the applicant had married in Jordan and had not produced any proof concerning the existence of an actual family life in Romania. Under these conditions, relying on the Court’s judgment in the case of Pini and Others v. Romania (nos. 78028/01 and 78030/01, 22 June 2004), the High Court considered that the authorities’ refusal to apply the newly adopted regulations in the applicant’s case had been a proportionate decision falling within the ambit of the second paragraph of Article 8 of the Convention. 13. Article 117 of the Criminal Code, as in force at the time of the applicant’s conviction and referring to expulsion, reads as follows in its relevant parts: “A prohibition on remaining in Romania may be imposed on any alien who has committed a crime.” 14. Emergency Ordinance No. 194/2002 on the status of aliens, as it was in force on 3 February 2004, reads as follows in its relevant parts: “The order to leave Romanian territory may be contested before the Bucharest Court of Appeal within 5 days of notification thereof ...” “(3) For aliens who have committed crimes, the term of the prohibition shall be equal to the length of their sentence, but no less than ten years.” 15. Following an amendment which entered into force on 27 November 2004, new rules for calculating the term of the prohibition on entering Romania became applicable. Article 102 of the above-mentioned ordinance was amended to read as follows in its relevant parts: “(1) For aliens who entered Romania illegally but whose stay has become legal, the term of the prohibition [on entering Romania] shall be as follows:... (2) The limits of the prohibition as set forth in paragraph (1) above shall be reduced by half for the aliens who: ... d) are married to Romanian citizens or are parents of children of Romanian citizenship who are minors. (3) For aliens who have committed intentional crimes and have been expelled, the term of the prohibition shall be equal to the length of their sentence, but no less than three years.” The amendment of 27 November 2004 did not include any special provisions concerning the aliens whose term of prohibition had been established under the former text of the Emergency Ordinance.
| 0 |
test
|
001-159766
|
ENG
|
ROU
|
COMMITTEE
| 2,016 |
CASE OF PĂȘCOI AND OTHERS v. ROMANIA
| 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)
|
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions according to which the applicants were entitled to various pecuniary amounts and/or to have certain actions taken by State authorities in their favour. Some applicants also raised other complaints under various Articles of the Convention.
| 1 |
test
|
001-146769
|
ENG
|
GEO
|
CHAMBER
| 2,014 |
CASE OF BEGHELURI AND OTHERS v. GEORGIA
| 3 |
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);No 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;Effective investigation);Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 14+9 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Freedom of religion);Non-pecuniary damage - award
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George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
5. The applicants are all Jehovah’s Witnesses, except for the ninth applicant, M. Kvergelidze. Their application to the Court is based on thirty cases of alleged violence and assault to which the applicants were subjected at different times. The applicants lodged approximately 160 complaints with the investigation authorities, including the General Prosecutor’s Office of Georgia (“the GPO”), with a view to criminal proceedings being brought against the perpetrators. The complaints failed to yield any concrete results. 6. At least four acts of religiously motivated violence were allegedly carried out with the direct participation of the police and other representatives of the authorities, while four other cases indicate their indirect involvement. Twelve of the thirty acts of alleged violence described in the application involved assaults on Jehovah’s Witnesses by the group of Orthodox believers run by Mr Basil Mkalavishvili (“Father Basil”), a priest defrocked by the Georgian Orthodox Church (see Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 11, 3 May 2007). Although in all the cases the applicants complained to the investigation authorities, in only a few of the cases did they receive a written response. In at least fifteen of the cases, when the applicants challenged the inactivity and ignorance of the law enforcement authorities, the courts refused to hear their complaints. In the majority of the cases, the victims reported the original investigation authorities’ indifference and failure to act to the GPO, but the latter took no adequate action. In only three cases were the applicants able to take their complaints right up to the Supreme Court of Georgia, which then dismissed them. 7. The Public Defender of Georgia, the European Commission against Racism and Intolerance, the UN High Commissioner for Human Rights, Amnesty International and national and international media repeatedly reported that Jehovah’s Witnesses had been the target of violence by private and Orthodox religious individuals, the majority of whom had been led by Father Basil, and that the relevant authorities had failed to prevent or stop it. 8. In support of the factual account set out below, the applicants produced the statements of more than 100 victims and witnesses of the alleged violence, photographs of police officers failing to take action while attacks were taking place, photographs of the injured applicants, as well as video recordings and photographs of Jehovah’s Witnesses’ meeting places that had been pillaged and ransacked. To illustrate the situation of Jehovah’s Witnesses in Georgia at the material time, the applicants’ representatives also referred to the evidence submitted in two other applications made by Jehovah’s Witnesses before the Court (Members of the Gldani Congregation of Jehovah’s Witnesses and Others, cited above, and Union of Jehovah’s Witnesses and Others v. Georgia, no. 72874/01, pending before the Court). The following account presents the facts as the applicants claim they occurred. 9. This part of the application concerns applicants K. Pirtskheliani, E. Pirtskheliani, G. Lemonjava, Z. Sartania, N. Pularia, D. Pachkoria, Z. Gogokhia, R. Tskhadaia, B. Tskhadaia, B. Kurashvili, N. Kantaria, L. Esebua, R. Karchava, D. Gulua, T. Biblaia, S. Kintsurashvili, K. Kutaladze, D. Samkharadze, L. Sabashvili and M. Berishvili (listed in the appendix as nos. 40-59). 10. On 23 August 2000, A.T., P.Ch., O.P, Z.G., D.Zh. and V.G., senior officials at the Zugdidi office of the Ministry of the Interior (Western Georgia) drew up a “plan for a protection operation to prevent the meeting of the religious movement of Jehovah’s Witnesses” in the village of Rokhi on 25 August 2000. The plan stated that “unofficial demonstrations against the meeting in question are likely to take place, requiring police intervention to prevent religious conflict.” The aims of the operation were defined as follows: to pick up individuals attending the Jehovah’s Witnesses’ meeting, to identify them for operational purposes, to gather information on the identified individuals by infiltrating their ranks; and to set up permanent and mobile checkpoints on the outskirts of the village of Rokhi, and on the roads around Rokhi and between neighbouring villages. 11. According to the applicants, the Rokhi religious convention was postponed by two weeks because of the on-going negotiations between the meeting organisers and local officials on the security measures to be put in place. 12. On 8 September 2000 a peaceful meeting of some 700 Jehovah’s Witnesses was taking place at the property of K. and E. Pirtskheliani (applicants nos. 40 and 41), when it was suddenly disrupted by the police. According to the applicants, the police opened fire inside their property. Masked police officers entered the house, turned it upside down and removed various items. Around fifty Jehovah’s Witnesses who were present were beaten, including applicants D. Gulua, M. Berishvili, K. Pirtskheliani and K. Kutaladze. E. Pirtskheliani, the aged co-owner of the house, was verbally assaulted and one of the attackers spat in her face. She was also made to watch her house being ransacked and plundered, and the stage set up in the courtyard set on fire. At the same time the police organised around seven buses to drive the participants of the religious meeting off from the scene. 13. Elsewhere, police checkpoints were set up on the main roads to impede a further 1,300 Witnesses – including the applicants B. Kurashvili, R. Tskhadaia and B. Tskhadaia – from reaching the meeting. According to applicant D. Samkharadze, he and L. Sabashvili were allegedly attacked and beaten on their way to the assembly, whilst N. Pularia, R. Karchava, Z. Gogokhia, Z. Sartania, S. Kintsurashvili, T. Biblaia, L. Esebua, and G. Lemonjava escaped physical aggression but were verbally assaulted and humiliated. 14. The applicants lodged complaints with the SamegreloZemo Svaneti regional prosecutor’s office in September 2000, and criminal proceedings were instituted under Article 178 § 3 (a) of the Criminal Code of Georgia (robbery) on 15 January 2001. The criminal file was sent to the investigation department of the Zugdidi office of the Ministry of the Interior and investigator B.Ch. was put in charge of the investigation. In FebruaryApril 2001 most of the applicants, along with other participants of the 8 September 2000 religious meeting, were questioned as witnesses; none of them was granted formal victim status. It appears that no other investigative measures were taken. 15. On 19 June 2001 the applicants were informed that the investigator had suspended the investigation on 15 April 2001 and that the regional prosecutor had upheld that decision on 20 April 2001. The reason stated was the failure of the investigation to establish the identity of the perpetrators. The applicants referred the matter to the regional prosecutor’s office, complaining that their statements, providing, among other things, the names of several police officers involved in the incident and the number plates of the vehicles used, had been disregarded. The investigator’s decision was set aside on 12 July 2001 and the case was referred back to the same investigator for further inquiries. However, the investigation was subsequently suspended again without the applicants being informed. They did not learn that their case had been closed until the respondent State submitted its observations to the Court in two other applications made by Jehovah’s Witnesses against Georgia on 31 December 2001. Consequently, on 17 January 2002, the applicants contacted the regional prosecutor to obtain a copy of the decision. They received no response. 16. This part of the application concerns applicants R. Tsartsidze, M. Gelashvili, R. Botchoidze, V. Gabunia, G. Sagaletovi, S. Bozoyani, Z. Martirosovi, Z. Baidoshvili, Sh. Simoniani and A. Gratiashvili (listed in the appendix as nos. 60-69). 17. According to the applicants, on 16 September 2000 a large number of Jehovah’s Witnesses departed for a meeting in Marneuli (Eastern Georgia). The police had set up checkpoints along the route, blocking the roads and preventing the Witnesses from arriving at their destination. Nineteen buses and several cars stopped by the police were obliged to turn back. Meanwhile, the police allowed a bus carrying Orthodox believers to continue to Marneuli. Upon arrival, the group of Orthodox believers burst into the property belonging to R. Tsartsidze (applicant no. 60) in which the meeting was to be held. They destroyed religious objects and removed items belonging to the owner of the property. The police officers present refused to intervene to protect the Jehovah’s Witnesses and at least some of them went as far as to beat members of the meeting. At least twenty-eight Witnesses were beaten and robbed during the attack. Property belonging to the Witnesses valued at several thousand US dollars was destroyed or stolen. In addition, according to an audit report submitted by the applicants, 1,500 kilograms of religious literature worth several thousand US dollars was burnt on that day. 18. R. Tsartsidze was assaulted and beaten by those who stormed his house, while Sh. Simoniani, G. Sagaletovi, Z. Martirosovi, R. Botchoidze and M. Gelashvili were stopped and beaten by a group of Orthodox believers on their way to the convention site. G. Sagaletovi submitted a medical certificate stating that he had sustained concussion as a result of the beatings. M. Gelashvili sustained bruises around his right eye and on his right knee. It appears that the next day he was further assaulted by two police officers on account of his participation in the events at hand. 19. S. Bozoyani was prevented by the roadblocks from travelling to Marneuli and thus escaped the attack unharmed, while V. Gabunia, Z. Baidoshvili and A. Gratiashvili did not submit any statements with regard to the treatment inflicted on them. 20. On 18 September 2000 the applicants filed a criminal complaint with the GPO. They received no information concerning the progress of their complaint. Therefore, on 24 December 2001, the applicants’ representative contacted the GPO requesting a copy of the decision taken with respect to the initial complaint. The GPO did not respond. On 25 March 2002, the applicants lodged a complaint against the authorities for their failure to reply. Their complaint was dismissed on 2 April 2002 by the Marneuli District Court on the ground that they could not file a complaint against a non-existent decision. 21. This part of the application concerns the applicants I. Papava, E. Baramia, M. Sakhokia, M. Chikovani, T. Todua and Z. Khargelia (listed in the appendix as nos. 34-39). 22. On 3 September 2000, several private individuals, including Z.O., K.T., and U.A., armed with guns and knives, burst into the home of I. Papava in Senaki (Western Georgia) where a meeting of Jehovah’s Witnesses was taking place. One of the assailants blocked the door, while the others proceeded to attack the applicants. A gun was pointed at the head of M. Sakhokia and he was punched in the face until his nose, which had been broken, began to bleed. T. Todua was cruelly beaten and a cigarette was stubbed out on his forehead. Z. Khargelia was punched in the face and stomach and threatened with a knife, and M. Chikovani jumped out of a window when one of the attackers took out his gun and pulled the trigger. She was taken to hospital by ambulance and placed in intensive care. I. Papava, the owner of the house, was not at home during the attack, but his wife, E. Baramia, was present and was also assaulted. 23. Along with their statements giving details of the incident, the applicants also provided the Court with a photograph of M. Chikovani, who, after jumping out of the window, sustained an injury to her back and was unable to walk for months, a photograph of M. Sakhokia with a broken nose, and a photograph of T. Todua with a cigarette burn on his forehead. 24. The police officers who arrived at the scene shortly after the incident insulted the victims and refused to record their complaints. On 22 September 2000, the applicants lodged a collective complaint with the city prosecutor. 25. On 15 October 2000, several of the applicants were summoned to give a statement. Their representative subsequently lodged a complaint in respect of the pressure and harassment to which the applicants had been subjected during questioning. He also denounced the investigators’ refusal to organise a medical examination of M. Chikovani and other victims of the attack. 26. On 22 February 2001, the applicants were notified of the decision of 20 December 2000 to take no further action in relation to their complaints. According to the decision, the investigating authorities had concluded that M. Sakhokia’s injuries had been self-inflicted, while M. Chikovani had jumped out of the window “of her own free will”. The decision also stated that the investigative authorities had established that one of the attackers had had a toy gun and had hence concluded that the meeting in question had not been violently disrupted. 27. Following an objection lodged by the applicants on 3 March 2001 with the regional prosecutor, the case was sent to the city prosecutor for further investigation. On 13 November 2001, the applicants went to the public prosecutor’s office to seek information on the progress of their case. They learnt that no further action would be taken and were denied a copy of the decision. On 26 November 2001, the applicants applied to the Senaki Court of First Instance but the judge refused to register their application. It was only following a complaint filed with the Chair of the Georgian Supreme Court that the Senaki court dealt with the applicants’ application on 4 January 2002 and quashed the decision of the public prosecutor’s office to take no action in their case. The case was sent back for additional investigation. Since then, the applicants have received no further news from the investigation authorities. 28. This part of the application concerns the applicants I. Geliashvili, E. Kakhelishvili, K. Javashvili, G. Poladashvili, L. Nozadze, T. Arabidze, B. Saralidze and S. Kvergelidze (listed in the appendix as nos. 26-33). 29. On 16 and 17 August 2000, a large group of Orthodox believers led by Father Basil burst into the courtroom of the Gldani-Nadzaladevi Court of First Instance in Tbilisi, which was dealing with a criminal case against two Jehovah’s Witnesses. The group attacked the applicants, journalists and foreign observers present in the room. The court bailiffs guarding the courtroom did not move or intervene in the confrontation. The group of believers was equipped with big wooden crosses, which they used as weapons. They took control of the courtroom. The lawyer acting for the accused asked for the hearing to be adjourned, but the judge did not allow his request. The court imposed no penalties on the religious believers who had forcibly occupied the courtroom. The attack was filmed and broadcast on the Rustavi 2 and Kavkasia television channels. 30. Applicants E. Kakhelishvili, S. Kvergelidze, L. Nozadze and I. Geliashvili managed to escape the aggression unharmed, while K. Javashvili, G. Poladashvili, T. Arabidze and B. Saralidze, according to their statements, suffered verbal and physical abuse; they were all threatened with being beaten by the big crosses. 31. The applicants lodged various complaints. They were given no information as to the progress of their cases. On 3 July 2002 their lawyer asked for access to the file and discovered that criminal proceedings had been instituted on 17 August 2000 and that on that same day, an investigation unit had been set up. The case had since been assigned to three successive investigating officers. The first two had managed to secure an extension of the investigation period until 17 December 2000 and 17 February 2001 respectively. On 17 February 2001, the investigator responsible had decided to close the case on the grounds that it had been impossible “to identify the perpetrators of the attack”. The applicants pointed out that the video recording of the attack had been broadcast on television and that furthermore, many of the witnesses had recognised Father Basil’s religious group. 32. On 22 March 2001, the decision to take no further action was set aside and the file returned for further investigation. On 3 May 2002, the investigation period was extended to 20 September 2002. Following two years of investigation, none of the attackers was placed under investigation and no decision was served on the applicants and their lawyer. 33. This part of the application concerns the applicant G. Makharoblishvili (listed in the appendix as no. 16). On 29 January 2001, while walking along the road between the villages of Okami and Lamiskana (Eastern Georgia), the applicant was picked up by four private individuals, who were later identified as T.B., G.K., N.P., and J.B. They took him by car to the place of worship of Jehovah’s Witnesses living in Lamiskana. They threatened to kill him unless he crossed himself and went around the site carrying an icon. When the applicant refused, they dragged him into a forest and beat him. They stripped him and took his personal belongings, including religious literature, which they then set alight. They threatened to rape him if he did not do as they ordered. They placed the belt of his own trousers around his neck, dragged him by the hair and forced him to crawl to a sacred rock and kiss it. After an hour and a half, and having been warned not to mention the incident to anyone, the applicant was taken back to the attackers’ car. He was thrown out of the car outside the house of a villager. The villager took care of the applicant for two days until he was able to return home. 34. On 19 February 2002 the applicant reported the incident to the police. In support of his version of events he submitted, along with his detailed statement, a statement of the villager, who had taken care of him. When the attackers learnt that he had done so, they threatened him. The police contacted them and obtained a written undertaking that they would stop intimidating the applicant. The applicant was notified of the decision of 1 June 2001 not to open a criminal case two months later. On 28 August and 24 December 2001, his lawyer lodged an appeal with the regional prosecutor and the GPO respectively. He received no response. On 20 March 2002, the lawyer referred the matter to the Kaspi Court of First Instance. The court informed him verbally that the decision not to institute criminal proceedings would be set aside by the regional prosecutor and that the investigation would go ahead. On 2 April 2002, the regional prosecutor sent the matter for further investigation. Since that date, the applicant has received no further information as to the progress of his case. His lawyer’s requests for information have also been to no avail. 35. This part of the application concerns applicant S. Khojenashvili (listed in the appendix as no. 70). On 16 April 2001, the applicant was allegedly beaten up by V.A., in the Baghdadi region (Western Georgia) because he was a Jehovah’s Witness. The applicant went to the local hospital, which alerted the police. The medical certificate submitted by the applicant stated that he had sustained bruising on the back of his head and abrasions on his face, right cheek, forehead and the back of his left ear. 36. On 18 April 2001, the applicant filed a complaint with the Baghdadi police. He was pressurised on many occasions by the attacker and his family to withdraw his complaint. The police investigated, identified Mr V.A. as the attacker and forwarded the case file to the Baghdadi Court of First Instance. On 5 June 2001, before even questioning the applicant and the prosecution witnesses and after having questioned the defence witnesses, the trial judge decided not to institute criminal proceedings for lack of evidence of a crime. The applicant appealed to the Kutaisi Court of Appeal, which, by a decision of 8 October 2001, upheld the decision of the lower court. Both those courts established that V.A. had not beaten up the applicant while he had been touting his literature, but had merely pushed him to get away from him. The applicant had therefore been injured by falling. On 24 January 2002, the Supreme Court of Georgia dismissed an appeal lodged by the applicant. 37. This part of the application concerns applicant V. Dolidze (listed in the appendix as no.10). On 19 April 2000 the applicant, along with some thirty Jehovah’s Witnesses, was celebrating a religious feast in a private house in the city of Lanchkhuti (Western Georgia). Late in the evening some seventy persons approached the house and tried to interrupt the religious gathering. Several of them, who were apparently drunk, including L.Ch. and O.E., the latter being armed with a wooden stick, burst into the house and verbally assaulted the Witnesses; the applicant was physically assaulted by L.Ch. Police intervention was requested and the head of the city police, T.K., arrived but, according to the applicant, only to assist the attackers. He forced the applicant to go to a police station, where the latter was physically assaulted by T.K., insulted by other people, including an Orthodox priest, and threatened with further physical violence unless he stopped practising his religion in Lanchkhuti. He was detained at the police station for about three hours. 38. On 25 April 2000 the applicant lodged a complaint. By a decision of 15 May 2000 an investigator from the Lanchkhuti district prosecutor’s office discontinued the proceedings owing to the absence of evidence of a crime. He concluded, after having questioned several police officers, that there was no evidence substantiating the applicant’s allegation that T.K. had insulted him. The applicant was not informed of the above decision until 22 March 2001. He immediately appealed, complaining, inter alia, that his initial complaint had concerned not only the conduct of T.K. but also the violent dispersal of the Jehovah’s Witnesses meeting of 19 April 2000 and the physical and verbal assault on him that had ensued. On 22 April 2001 the refusal to institute criminal proceedings was upheld on appeal and no further investigation was ever conducted. The respective decision was served on the applicant only on 19 May 2002. 39. These parts of the application concern the applicants N. Sikharulidze, A. Aptsiauri and G. Gogia (listed in the appendix as nos. 7274, case no. 8); G. Markozashvili and L. Markozashvili (nos. 75 and 76, case no. 9); K. Vashakidze, N. Gabisonia, N. Gegia and M. Tchubabria (nos. 77-80, case no. 10); I. Bolotashvili, V. Gugulashvili, A. Toradze and M. Bekauri (nos. 82-85, case no. 11); A. Burjanadze and A. ElbakidzeJioeva (nos. 86 and 87, case no. 12); N. Butkhuzi (no. 88, case no. 13); and V. Begheluri and G. Todua (nos. 1 and 2, case no. 14) respectively. 40. On 16 January, 27 November, 19 and 26 December 2000, 8 June 2001, 19 and 26 December 2000, 11 November 2000 and 29 April 2001 respectively the applicants were subjected to various forms of aggressive behaviour because of their faith. A group of Father Basil’s followers in Tbilisi, a group of around thirty followers of Father Tsaava and Father Basilaia in Martvili, and other groups of laypersons followed the applicants in the streets or close to their homes; they insulted them; they attempted to break into their homes by forcing the doors, frightening children who had been left home alone (case no. 9); they tried to force one of the applicants to kiss the cross (applicant no. 80, criminal case no.10); and they seized their religious literature (case no. 14) and burned it (case no. 11). The homes of applicants A. Elbakidze-Jioeva and N. Butkhuzi at which the Jehovah’s Witnesses held their services were burgled and ransacked, and religious objects were stolen (cases nos. 12 and 13). 41. In certain cases, the police were present at the scene but did not intervene to protect the applicants (criminal cases nos. 9 and 10). 42. In all cases, the applicants lodged complaints, but apart from cases nos. 8 and 10, no response was ever received. The applicants contacted the Prosecutor General to obtain a written decision as regards their complaints but they never received a reply. In some cases the courts contacted the public prosecutor’s office themselves requesting written decisions, but received no response. 43. In criminal case no. 8, in reply to a complaint filed by applicants N. Sikharulidze, A. Aptsiauri and G. Gogia (nos. 72-74), the police informed them that they had issued a warning to Father Basil to stop attacking Jehovah’s Witnesses. The applicants requested several times a copy of the written decision not to institute criminal proceedings, but received no response. On 18 June 2002 the Gldani-Nadzaladevi Court of First Instance refused to hear an objection lodged by the applicants on the grounds that they could not validly challenge a non-existent decision. The complaints filed by G. and L. Markozashvili (criminal case no. 9), I. Bolotashvili, V. Gugulashvili, A. Toradze and M. Bekauri (criminal case no. 11), N. Butkhuzi (criminal case no. 13) and V. Begheluri and G. Todua (criminal case no. 14) on 19 March 2002 had the same outcome; On various dates in March-June 2002 the Gldani-Nadzaladevi Court of First Instance refused to examine the applicants’ complaints on the ground that they had failed to submit the decisions of the prosecutor’s office. 44. In criminal case no. 10, the applicants were notified of the prosecutor’s decision of 30 July 2001 to take no further action. This decision was set aside by the court authorities and the case was referred back for further investigation. Subsequently, on 8 May 2002 the Martvili prosecutor upheld the initial refusal to institute criminal proceedings. The prosecutor concluded, on the basis of various witness testimonies, that neither of the Jehovah’s Witnesses had been subjected to verbal or physical abuse during the alleged incident; they had been merely prevented by the local priests and population from attending a religious gathering of Jehovah’s Witnesses at the home of N. Gabisonia (applicant no. 78) in order to avert an escalation of religious conflict in the city. 45. In criminal case no. 12, following several written complaints which have been left unanswered, on 5 June 2002 the head of the local police informed the applicants in person that no investigation had been carried out because they had never received their written complaints. 46. This part of the application concerns the applicant Kh. Japiashvili (listed in the appendix as no. 89). On 6 May 2000, the applicant was travelling to the village of Shakasheti with various religious books belonging either to him or to the local congregation of Jehovah’s Witnesses. He was stopped by police officer Z.D. and taken to Agara police station, where the books were confiscated. His attempts to object resulted in verbal abuse and he was released. The applicant returned to the police station some time later accompanied by two other Jehovah’s Witnesses, who were the other owners of the confiscated literature. On arrival, they noticed the charred remains of their books. On 8 May 2000, they lodged a complaint. 47. On 10 June 2002 the applicant was notified of a decision of 23 May 2000 not to open a criminal case for lack of evidence of a crime. 48. This part of the application concerns the applicants K. Gagua and A. Gegelia (nos. 90 and 91). On 30 June 2000, G.Ts., an Orthodox priest, accompanied by several police officers, including B.B., approached K. Gagua, who was sitting on a bus in the city of Martvili, and demanded that he show them his bag. On the instructions of the priest, the police officers confiscated the religious literature and personal documents found in the bag. The applicant filed a complaint at the police station. 49. On 16 July 2000, both applicants were walking through the central square in the village of Didi Chkhoni (Martvili municipality) when they were stopped by a group of fifteen men. The applicants were cruelly beaten because of their faith. The head of the local police, R.A. and two police officers, K.T. and N.A, were close by and witnessed the act of violence, but failed to intervene to protect the victims. On the contrary, they threatened to arrest the applicants. The applicants filed a complaint. In support of his complaint, A. Gegelia submitted a medical report which stated that he had sustained bruises around his left eye, on his forehead and on both thighs. 50. The applicants’ complaints were never followed up. On 24 December 2001, their lawyer contacted the GPO but received no reply. On 29 March 2002, the applicants took legal action in respect of the investigation authorities’ failure to act. On 10 April 2002, the Martvili Court of First Instance refused to hear the complaint on the ground that the applicants could not validly challenge a non-existent decision. On 22 April 2002, the applicants filed the same complaint with the same court. On 16 May 2002, that court responded that the case had been referred back to the prosecutor’s office for a written decision. In reply to their query of 19 August 2002, the responsible investigator informed the applicants that on 28 May 2002 a decision had been taken to close the case. He based his decision on the statements of the alleged perpetrators. He dismissed the medical evidence and concluded that no crimes had been committed. The decision also stated that the time-limit for initiating a private legal action had expired. 51. This part of the application concerns the applicant A. Mikirtumovi (listed in the appendix as no. 97), a Jehovah’s Witness pastor. On 21 September 2000 the applicant was visiting a congregation of Jehovah’s Witnesses in Tetritskaro. Having been stopped in the street by unidentified individuals, he was taken to the police station where he was jeered at and insulted. The police threatened to arrest him if he were ever to be seen practising his religion in Tetritskaro again. The applicant was expelled from the town and the bus driver was ordered not to let him off the bus before the terminus in Tbilisi. 52. On 22 September 2000 the applicant lodged a complaint. He received an acknowledgment of receipt but no further information as to the progress of his case. On 24 December 2001, he contacted the GPO asking for a decision. No response followed. On 19 March 2002, the applicant referred the matter to the Tetritskaro Court of First Instance. On 5 June 2002, the first-instance judge informed him that the court’s attempts to obtain the file and the decision from the public prosecutor’s office had failed and that he was therefore unable to investigate his complaint. One month later, the court managed to obtain a copy of the prosecutor’s decision, which it forwarded to the applicant. It appeared from the 30 June 2001 decision that the prosecutor had decided not to initiate criminal proceedings. He concluded, on the basis of the statement of the two police officers involved in the incident, that the applicant had been taken to the police station for his own safety in order to prevent any conflict with the local population. The prosecutor also stated that there was no evidence to substantiate the applicant’s allegations of abuse. 53. The prosecutor’s refusal to institute criminal proceedings was upheld by the Tetritskaro Court and the Supreme Court of Georgia on 20 August and 10 October 2002 respectively. 54. This part of the application concerns the applicant Z. Kvaratskhelia (listed in the appendix as no. 98). On 15 August 2001, the applicant was stopped in a Tbilisi street by police officer N.M., who asked him what he had in his bag. The religious literature and the Bible in his bag were confiscated. The police officer and two passers-by insulted the applicant. On the following day, the applicant went to the police station to request the return of his books and Bible. In response to his request, officer N.M. threw a bag he was holding towards the applicant and kicked him out of the police station. 55. On 21 August 2001 the applicant filed a complaint but received no response. On 24 December 2001, his lawyer contacted the GPO but received no reply. The applicant referred the matter to the Vake-Saburtalo Court of First Instance in Tbilisi. At the hearing of 12 April 2002, the applicant obtained a copy of the decision of the public prosecutor’s office not to institute criminal proceedings dated 5 November 2001. The court set aside that decision and referred the case back to the public prosecutor’s office for further investigation. On 21 June 2002, the applicant’s lawyer tried unsuccessfully to obtain information on the progress of the file. 56. This part of the application concerns the applicants B. Gogoladze, A. Tvaradze and M. Kapanadze (nos. 13, 14 and 15). On 1 April 2001 the applicants were returning from a religious meeting. In the village of Dviri (Borjomi district, Western Georgia), they were attacked by a group of villagers accompanied by Mr S.Kh., and Mr J.B., administrative head of the county town of the district and administrative head of the village respectively. One of the attackers, a private individual, struck B. Gogoladze, who started bleeding and grabbed his bag containing a Bible and other religious literature. The same person then attacked the other two applicants, lashing them with the strap of the bag belonging to Gogoladze. The two administrative heads condoned the violence and insulted the applicants. They then ordered the villagers to stop and left the scene with them. 57. On 5 April 2001 the applicants filed a complaint. On 24 August 2001, they were notified of the decision to close the proceedings. On 6 September 2001, the applicants challenged that decision before the regional prosecutor, who dismissed their action on 1 October 2001. The applicants complained to the GPO on 28 November 2001, but no reply followed. 58. This part of the application concerns the applicants V. Begheluri, I. Janashvili, M. Makievi, Kh. Makieva, E. Tabaghua, E. Begheluri, J. Gogokhia, T. Kolbaia, L. Gelashvili and N. Maisuradze (listed in the appendix as nos. 1, 6 and 17-24). 59. On 28 July 2000 in Tbilisi, followers of Father Basil stopped a bus that was carrying Jehovah’s Witnesses to a religious meeting in Marneuli. They punctured the tyres, forced the applicants along with other Jehovah’s Witnesses out of the bus and assaulted them, verbally and physically. The men, including M. Makievi, E. Begheluri and V. Begheluri, were particularly severely beaten; N. Maisuradze was also personally targeted because she was video recording the attack. In particular, after forcefully getting of the bus, she was chased by two men who assaulted her and then took the camera away from her. They shortly returned to her a broken camera, but the video recording was missing. They also threatened her not to make any recordings in the future. 60. On 31 July 2000 forty-eight Jehovah’s Witnesses, including the applicants, filed a complaint. In August-September 2000 they in addition submitted individual statements detailing the violent incident. On 24 December 2001, their lawyer contacted the GPO asking for a decision to be taken. They received no response. On 19 March 2002, the applicants complained to the Gldani-Nadzaladevi Court of First Instance in Tbilisi of the investigation authorities’ failure to take action, which had amounted to a rejection of their complaint. On 19 June 2002, the court informed the applicants that in the absence of any written decision, their complaint could not be examined. 61. On 15 September 2001 the applicant M. Gaprindashvili (listed in the appendix as no. 99) was walking along a street in the city of Kutaisi, when he was subjected to physical and verbal abuse because of his faith. Notably, he alleged that he had been beaten and insulted by a passer-by while he was distributing religious literature. Accompanied by his attacker, the applicant went to the police station where he was allegedly hit by a police officer, T.K., while other police officers thanked the attacker. In support of his allegations, the applicant submitted the statements of four eyewitnesses. 62. On 19 September 2001 the applicant lodged a complaint. On 12 October 2001, the Kutaisi prosecutor decided not to institute proceedings against the passer-by, identified as L.M., and police officer T.K. Noting that the applicant’s statement and those of the eyewitnesses supporting his version of the events were controversial, the prosecutor concluded that there was no evidence of a criminal offence committed by either of them. The applicant challenged that decision. After having questioned the parties concerned, the lower court dismissed the case on the ground that the applicant’s injuries had not been confirmed by a medical report. An appeal by the applicant to the Supreme Court of Georgia was dismissed on 18 June 2002. 63. This part of the application concerns the applicants M. Salukashvili, L. Kikalishvili, V. Burduli and I. Janashvili (listed in the appendix as nos. 36, case no. 22); L. Khitarishvili, N. Kobaidze and M. Kvergelidze (nos. 7-9, case no. 23); E. Gabelaia (no. 81, case no. 24); and S. Barsegyani, I. Dalakishvili-Barsegyani, and T. Arabyani (nos. 12, 92 and 93, case no. 25) respectively. 64. According to the applicants, because of their faith they were subjected to threats, verbal assault and theft of their religious literature and personal belongings while walking in the streets on 13 February 2000, 3 April 2000, 13 July 2000 and 20 June 2001 respectively. The attacks were carried out in different parts of the country. The perpetrators were followers of Father Basil or just laypersons hostile to Jehovah’s Witnesses. Most of them were identified by the victims. 65. The applicants in all the cases complained to the police. When filing the complaint, some of them were subjected to verbal abuse by police officers (case no. 22). In response to their complaints, some of the applicants were informed verbally that the police had already warned the attackers to stop abusing Jehovah’s Witnesses. Hence, when E. Gabelaia (case no. 24) complained to the police on 18 July 2000 that she had been repeatedly assaulted by S.G. and his friends, the police limited themselves to contacting S.G. and obtaining a written undertaking that he would stop intimidating the applicant. The latter was informed in this respect verbally by head of police on 20 July 2000. According to the case file, she took no further action in response. 66. The applicants in criminal cases nos. 22, 23 and 25 were not informed of any decision taken by the relevant national authorities in connection with their complaints. The applicants complained to the courts of the inaction of the investigation authorities, but the courts refused to deal with their cases in the absence of a written decision. The respective court decisions were delivered on 3 April (criminal case no. 25) and 18 June 2002 (criminal cases nos. 22-23). 67. This part of the application concerns the applicants V. Marikyani and S. Barsegyani (listed in the appendix as nos. 11 and 12, case no. 26), K. Korchilava (no.71, case no. 27), A. Turkia and T. Galdava (nos. 94 and 95, case no. 28), D. Margiani (no. 96, case no. 29) and G. Kokhreidze (case no. 30). According to the applicants, while walking in the street they were subjected to verbal and physical abuse because of their faith. They were beaten up and their personal belongings were stolen on 3 August and 24 September 2000, 20 June and 1 August 2001, and 19 April 2000 respectively. In support of their version of the events the applicants submitted detailed statements as well as medical evidence where available. 68. Applicants V. Marikyani and S. Barsegyani (criminal case no. 26), who were allegedly beaten by a group of fifteen supporters of Father Basil in a street during daylight hours in Tbilisi, had to seek medical assistance in a hospital. Two days after the attack they filed a criminal complaint with the GPO in which they provided a detailed account of the incident, indicated the number plates of the vehicles involved, and identified two of the alleged attackers by name. While being questioned as witnesses, the applicants were pressured by the police to withdraw their complaint. In a ruling of 9 January 2001 the Gldani-Nadzaladevi Court of First Instance concluded, having regard to the relevant case file, that the assault in question, as a result of which the applicants had sustained minor bodily injuries, had clearly had a religious motive and had been committed by followers of Father Basil. The judge noted, however, that it had been impossible to identify the alleged perpetrators and referred the case file back to the prosecution authorities. As it appears from the materials at hand, the applicants were informed in June 2002 that their case file was subsequently lost. 69. In case no. 27, the applicant was assaulted by a private individual, L.L. He filed a complaint with the local police the day after the attack. He also underwent a medical examination. He resubmitted his criminal complaint to the district prosecutor of Abasha one week later, together with the results of the medical examination. He received a reply on 5 October 2000 stating that criminal proceedings had been instituted. Since then, however, the applicant has not inquired about the progress of the investigation. 70. Applicant A. Turkia (criminal case no. 28) was assaulted by a layperson, M.J., in the city of Abasha on 20 June 2001. The incident was witnessed by applicant T. Galdava, who apparently escaped the attack unharmed. According to Mr Turkia’s statement, he suffered serious physical and verbal abuse and was also threatened with a knife. On 25 June 2001 he filed a complaint with the GPO. Mr Turkia claimed that it was not the first attack of this type involving M.J. On 9 July 2001 the deputy head of the Abasha regional police decided not to follow up the complaint. He concluded, on the basis of the alleged attacker’s statement as well as several eyewitnesses’ depositions, that M.J. had simply asked Mr Turkia to stop disseminating religious literature in the city and that Mr Turkia had suffered no physical injuries. The decision was upheld on appeal by a prosecutor on 23 July 2001. On 24 July 2002 the Abasha District Court judge set aside the prosecutor’s decision. He referred to the results of Mr Turkia’s medical examination, and to a photograph of him taken the day after the alleged incident. He concluded that there was evidence of an offence and remitted the case for further investigation. Applicant Turkia was not informed of the progress of the subsequent investigation. 71. In case no. 29 the applicant, who was verbally and physically assaulted by a group of private individuals, among them M.T. and G.C. residents of the village Narazini (Western Georgia), was informed by police that they had issued a warning to M.T. to stop attacking Jehovah’s Witnesses. A decision was taken not to initiate a criminal investigation. The applicant challenged the refusal. On 4 January 2002 the Zugdidi District Court remitted the case for further investigation. The trial judge concluded that no identification procedure had taken place and that the investigation had disregarded the accusations voiced with respect to G.C. On 23 January 2002 a Zugdidi prosecutor after having questioned the alleged attackers maintained the refusal to open a criminal case owing to the absence of elements of crime. 72. G. Kokhreidze (criminal case no. 30) was assaulted while hosting several Witnesses at a dinner in her home on 19 April 2000. She complained to police claiming that one of the assailants, U.S. had been systematically attacking her. Police informed her that they had warned U.S. and that no proceedings had been instituted. Subsequently, the applicant requested a copy of the written decision not to institute criminal proceedings, but received no response.
| 1 |
test
|
001-163660
|
ENG
|
ESP
|
CHAMBER
| 2,016 |
CASE OF ALDEGUER TOMÁS v. SPAIN
| 3 |
No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life)
|
Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
6. The applicant was born in 1955 and lives in Pozuelo de Alarcón (Madrid). 7. The applicant cohabited with another man in a homosexual relationship from 1990 until the latter’s death on 2 July 2002. During that period they lived together in an apartment belonging to the applicant’s partner. When his partner died, the sister and only heir of the applicant’s partner gave the applicant, because of the relationship he had had with her brother, an apartment that had belonged to the applicant’s late partner and in which the couple had spent their holidays together since 1990. 8. On 19 September 2003 the applicant claimed social security allowances as a surviving spouse, under section 174 (1) of the General Social Security Act, arguing that he had cohabited with his deceased partner for many years. 9. On 22 September 2003 the National Institute of Social Security (Instituto Nacional de la Seguridad Social, hereafter referred to as “INSS”) refused to grant the applicant a survivor’s pension on the ground that since he had not been married to the deceased person, he could not legally be considered as his surviving spouse for the purposes of section 174 (1) of the General Social Security Act. That decision was formally served on 13 June 2005. 10. On 1 July 2005 Law no. 13/2005 amending the provisions of the Civil Code with respect to the right to enter into marriage was passed. Two days later it entered into force. This law legalised same-sex marriage in Spain. In accordance with its first additional provision all legal and regulatory provisions making reference to marriage should be understood thereafter as applicable to all marriages irrespective of the sex of its members (see paragraph 35 below). 11. On 5 July 2005 the applicant filed an administrative complaint against the decision of 22 September 2003. This complaint was dismissed by the INSS on 11 August 2005. The INSS noted that there was no provision in the legislation in force that allowed, for the purposes of social security rights, the person who had been cohabiting with the deceased to gain the status of a widower. 12. On 26 September 2005 the applicant challenged that decision before the Madrid Social Tribunal no. 33 (“the Social Tribunal”). 13. In a judgment of 14 November 2005 the Social Tribunal ruled for the applicant. The Social Tribunal firstly outlined that the facts of the case had to be assessed in the light of the newly enacted Law no. 13/2005, which was already in force and deemed constitutional by the tribunal. As to the merits, the Social Tribunal observed that the issue at stake was whether the applicant, as the surviving partner of a same-sex relationship that ended (following his partner’s death) before the entry into force of Law no. 13/2005, had the right to a survivor’s pension. The Social Tribunal then reiterated that, according to the well-established domestic case-law, surviving partners of unmarried couples were not entitled to a survivor’s pension under section 174 of the General Social Security Act, marriage being a constitutive element to access any such social-security benefit; that the applicant had been prevented from marrying his partner because same-sex marriage had not been recognised in domestic law at the time his partner died; that the social security administration had relied on the fact that the couple had not married to refuse the applicant a survivor’s pension; and that it was evident that after the entry into force of Law no. 13/2005, surviving spouses of same-sex marriages were entitled to survivors’ pensions on the same footing as survivors of different-sex marriages. 14. The Social Tribunal was of the view that the solution to the legal issue raised by the applicant’s case depended on whether it could be inferred from Law no. 13/2005 that Parliament’s intention had been that surviving partners of same-sex couples who had been prevented from marrying under the former legislation could access a survivor’s pension on a similar footing to same-sex couples who could marry after the entering into force of that Act. The Social Tribunal drew attention in this regard to the provisions and the explanatory memorandum of Law no. 13/2005 to contend that this new legislation had a very strong egalitarian purpose, and that from the date it entered into force, that is to say 3 July 2005, all legal provisions concerning marriage should be interpreted on the basis of the first additional provision of Law no. 13/2005 as applying fully to same-sex marriage (see paragraph 35 below). The Social Tribunal held in this regard that: “This is a wide-ranging provision which affects all the other provisions of the legal system making reference to marriage. From now onwards all references to marriage established in the law shall be understood as applying also to marriage celebrated between two persons of the same sex. Accordingly, whoever shall be called to interpret or apply any marriage-related provision should do so in egalitarian terms without taking into consideration whether the spouses are of the same or different sex”. 15. The Social Tribunal further recalled that additional provision no. 10 (2) of Law no. 30/1981 of 7 July 1981 amending the provisions of the Civil Code pertaining to marriage and the procedure to be followed for cases of annulment, judicial separation and divorce, recognised the right to obtain a survivor’s pension for individuals who had been prevented from marrying a person who later died by the legislation in force until then, provided that he or she had cohabited in a relationship similar to marriage with the deceased person and that the deceased had died before Law no. 30/1981 entered into force. 16. The Social Tribunal stressed that such a provision was included in order to provide a solution for those cohabiting couples consisting of a man and a woman who could not have married under the legislation in force until that time, and thus did not qualify for a survivor’s pension, because one or even both of them had still been married to another person whom they had been prevented from divorcing, divorce having been legally impossible in Spain until the passing of Law no. 30/1981. The Social Tribunal considered that the applicant’s circumstances were “fully comparable” to those outlined in additional provision no. 10 (2) of Law no. 30/1981 in so far as: “- the claimant could not marry his partner because the legislation then in force prevented him from doing so; - the claimant had shared a marital life with his partner until the latter’s death; - the latter’s death had taken place before the entry into force of Law no. 13/2005” 17. The Social Tribunal acknowledged, however, that whereas Law no. 30/1981 was aimed at protecting the rights of those cohabiting heterosexual couples who were prevented from marrying because divorce was prohibited at the time, Law no. 13/2005 was aimed at protecting the rights of those who could not marry on account of their sexual orientation, and that this distinction was the main impediment to the recognition of the applicant’s right to a survivor’s pension. 18. The Social Tribunal considered nonetheless that treating these two groups differently would not be in harmony with the strong egalitarian intention expressed by Parliament with the passing of Law no. 13/2005 and that, accordingly, additional provision no. 10 (2) of Law no. 30/1981 was applicable to the applicant by force of additional provision no. 1 of Law no. 13/2005. The Social Tribunal stated as follows: “Therefore, the interpretation that in my opinion better fits the legislature’s intention is the following: - If the first additional provision of Law no. 13/2005 sets out that provisions making reference to marriage shall apply irrespective of the sex of the spouses, - And one of [these provisions], currently in force to provide access to a survivor’s pension, is additional provision no. 10 (2) of Law no. 30/1981. - The only method to apply it in a way which is consistent with the egalitarian intention of the legislature is to do so irrespective of the sexual orientation of the members of the cohabiting couple. - In order to ensure that sexual orientation does not constitute discriminatory grounds in the application of additional provision no. 10 (2) of Law no. 30/1981, the right thereby recognised shall currently be interpreted as providing a solution to factual situations such as the one in the instant case in which the impediment to access to a survivor’s pension is no other than the sexual orientation [of the claimant].” 19. As regards the administration’s submission that in the area of social security benefits the governing principle was that of non-retroactivity of laws and that according to the law in force at the time the applicant’s partner died the former did not qualify for a survivor’s pension because they were not married, the Social Tribunal was of the view that this general principle was not absolute and that it did not apply where there was a specific rule giving retroactive effect to laws more favourable to the citizens, as is true of the instant case. Thus, additional provision no. 10 (2) of Law no. 30/1981 should be read in the light of the first additional provision of Law no. 13/2005. 20. As to the degree of retroactivity that should be given to additional provision 10 (2) of Law no. 30/1981 in the applicant’s case, the Social Tribunal relied on the constitutive effects of Law no. 13/2005 which created new rights and was effective only from the date it entered into force. Accordingly, the Social Tribunal recognised the applicant’s right to be awarded a survivor’s pension with effect from 3 July 2005. 21. The INSS and the Treasury General of Social Security appealed (recurso de suplicación) against that judgment to the Madrid High Court of Justice (Tribunal Superior de Justicia). 22. On 18 September 2006 the Madrid High Court of Justice upheld the appeal and reversed the first-instance judgment. The court found that the legislature had not intended Law no. 13/2005 to cover same-sex partnerships which had been ended by the death of one of the partners before said law had entered into force and that the lack of protection of these unions could not be considered discriminatory in the light of Article 14 of the Spanish Constitution. 23. For the court, it was only as from the entry into force of Law no. 13/2005 that marriage between same-sex couples was recognised and that this law affected other rights for those persons who would wish to marry thereafter. Hence, the court was of the view that Law no. 13/2005 had no retroactive effects, except as otherwise expressly provided, which was not the case at hand. 24. The court further stated that even though Law no. 13/2005 had been inspired by the constitutional principle of equality, prior legislation preventing same-sex marriage could not be deemed unconstitutional as contrary to either any constitutional principle or to the right not to be discriminated against. The court referred to constitutional case-law dating from 1994 according to which the requisite of heterosexuality for the purposes of marriage was fully constitutional and that it was within the margin of appreciation of the public authorities to treat heterosexual marriages more favourably than homosexual partnerships. In this connection, the court maintained that despite the reference in the preamble of Law no. 13/2005 (see paragraph 35 below) to the discriminatory treatment to which homosexuals had traditionally been subjected on account of their sexual orientation, the aim of Parliament in passing that law was merely to respond to a new social reality and award homosexuals the right to marry, but not to protect same-sex partnerships which had already ended before its enactment. 25. The court referred to constitutional case-law according to which a difference in legal treatment of individuals due to subsequent changes in the law does not necessarily entail discrimination, even if those persons could be said to be in similar circumstances. Given the complexity that a change in legislation might involve, it was for Parliament to establish the characteristics of the legal transition, either by introducing retroactivity clauses or by restricting the application of the new legislation to circumstances arising after its entry into force. 26. The court noted in this regard that Law no. 13/2005 had not included any provision concerning same-sex partnerships which had already ended at the time of its entry into force and that it strictly concerned same-sex couples still in existence at that time and who would be willing to enter into marriage. The court considered that the difference between the situations before and after the passing of Law no. 13/2005 was essentially an expression of the principle of succession of laws without constitutional implications as regards the right not to be discriminated against. 27. As regards the applicability to the present case of additional provision no. 10 (2) of Law no. 30/1981, the Madrid High Court of Justice found that this provision was not applicable to the applicant’s case for two main reasons. Firstly, that provision could not be considered as among the provisions to which the first additional provision of Law no. 13/2005 referred. Additional provision no. 10 (2) was, as the Constitutional Court had established, of a provisional or transitory nature and had been envisaged for those specific cases in which one of the partners had died before the entry into force of Law no. 30/1981. It had not been intended to govern future situations. Secondly, that provision had been envisaged for a totally different situation from that of the applicant. Additional provision no. 10 (2) of Law no. 30/1981 was aimed at guaranteeing a survivor’s pension to those heterosexuals who had been prevented from marrying their out-of wedlock partner because divorce had not been legal at the time of the latter’s death. The inability to remarry for those affected by additional provision no. 10 (2) of Law no. 30/1981 was based on the fact that divorce was not permitted at the time. The institution of marriage was open to them in their capacity as heterosexuals. On the contrary, same-sex couples were absolutely prevented from marrying before Law no. 13/2005 since the institution of marriage was until then restricted to heterosexual couples. 28. Furthermore, the court contended that the applicant could never have fulfilled the more uxorio marital cohabitation requirement established by additional provision no. 10 (2) of Law no. 30/ 1981 of, because only those who were in principle eligible for marriage but had been prevented from marrying for whatever reason could qualify for de facto marital cohabitation. The applicant and his partner could have never cohabited “as if married” before the entry into force of Law no. 13/2005, because before then they were ineligible for marriage as they were both male. 29. The applicant lodged an appeal on points of law seeking harmonisation of the case-law (recurso de casación para la unificación de doctrina). In a decision of 27 June 2007, the Supreme Court (Social Chamber) declared the appeal inadmissible on the ground that the decision produced for purposes of comparison, specifically a judgment of the High Court of Justice of the Canary Islands of 7 November 2003, was not relevant. That decision was served on 26 July 2007. 30. Relying on Articles 14 (principle of equality and prohibition of discrimination) and 24 § 1 (right to effective judicial protection), the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 11 February 2009, served on 17 February 2009, the Constitutional Court declared the appeal inadmissible on the grounds that the applicant had failed to substantiate the special constitutional relevance of his complaints.
| 0 |
test
|
001-155716
|
ENG
|
POL
|
CHAMBER
| 2,015 |
CASE OF GRABOWSKI v. POLAND
| 3 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-d - Minors);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev
|
7. The applicant was born in 1995 and lives in Cracow. 8. On 7 May 2012 the applicant was arrested on suspicion of having committed three armed robberies and one attempted armed robbery with the use of a machete on 4 May 2012. He was initially detained in a police establishment for children (policyjna izba dziecka) in Cracow. 9. On 7 May 2012 the Cracow-Krowodrze District Court (Family and Juvenile Section) instituted inquiry (postępowanie wyjaśniające) with a view to determining whether the applicant had committed the offences at issue. 10. On the same day the Cracow-Krowodrze District Court decided to place the applicant in a shelter for juveniles (schronisko dla nieletnich) for a period of three months. It found that, in view of the available evidence, there existed a reasonable suspicion that the applicant had committed three armed robberies and one attempted armed robbery and some other offences. The court also noted that the applicant was lacking in moral character and that the nature of the offences with which he had been charged militated in favour of placing him in a correctional facility (zakład poprawczy). It also noted that there was a risk that he might go into hiding or put pressure on witnesses. 11. The applicant appealed. He argued, inter alia, that there had been no risk of fleeing or interfering with witnesses. He also objected to his placement in the shelter on the grounds that he had a history of mental difficulties and had been schooled in a specialised institution. 12. On 10 July 2012 the Cracow Regional Court upheld the decision of the lower court. It had regard to the gravity of the offences which the applicant had allegedly committed and the fact that they could not be treated as an isolated incident. The court also noted that in the past a family court had handed down a warning and that on 29 May 2012 he had been put under the supervision of a court guardian. In view of those circumstances, it was considered likely that the applicant would be placed in a correctional facility. His placement in the shelter was further justified by the fact that he had threatened one of the victims of the robbery. Responding to the arguments related to the applicant’s mental health, the court noted that the placement in the shelter, in addition to the applicant’s isolation, placed him under educational supervision which could not be seen as incompatible with his well-being. 13. On 27 July 2012 the CracowKrowodrze District Court ordered that the applicant’s case should be examined in correctional proceedings (postępowanie poprawcze). 14. On 9 August 2012 the applicant’s counsel requested the CracowKrowodrze District Court to order the applicant’s immediate release. He submitted that the three-month period for which the measure was applied had expired on 7 August 2012 and that no decision on prolongation of the measure had been given. He argued that in accordance with section 27 §§ 4 and 5 of the Juvenile Act the decision on prolongation of the placement in a shelter for juveniles could be taken only by a court after summonses had been sent to the parties and counsel. The applicant’s counsel obtained information from the court’s registry that in practice such decisions were not given, and that it sufficed for the court to issue an order for the case to be examined in correctional proceedings. The applicant’s counsel objected to such a practice and considered it to be unlawful. 15. On 9 August 2012 the Cracow-Krowodrze District Court dismissed the applicant’s request for release. It provided the following reasons: “The juvenile Maksymilian Grabowski is accused of having committed criminal acts with the use of a dangerous object. These circumstances exclude the possibility of altering the security measure in respect of the juvenile. At present the state of health of the juvenile is normal. In the absence of reasons justifying the quashing of the security measure in respect of the juvenile, it has been decided as above in accordance with sections 20 and 27 of the Juvenile Act”. 16. On 9 August 2012 the applicant’s counsel wrote to the director of the Gacki Shelter for Juveniles urging him to release the applicant. 17. By a letter of 16 August 2012 the Cracow-Krowodrze District Court informed the applicant’s counsel that after the court had ordered the examination of the case in the correctional proceedings on 27 July 2012, it did not prolong the applicant’s placement in the shelter for juveniles pursuant to section 27 § 3 of the Juvenile Act. 18. The Cracow-Krowodrze District Court held hearings in the applicant’s case on 21 November 2012 and 9 January 2013. On the latter date the court delivered a judgment and held that the applicant had committed the offences which had been imputed to him. The court ordered the applicant’s placement in correctional facility but suspended the application of this measure for a two-year probationary period. It further ruled to place the applicant under the supervision of a court guardian during the probationary period. 19. Having regard to the judgment, on 9 January 2013 the CracowKrowodrze District Court quashed the applicant’s placement in a shelter for juveniles. The applicant was released on the same day. 20. The judgment of 9 January 2013 was not appealed against and became final on 14 February 2013.
| 1 |
test
|
001-151038
|
ENG
|
UKR
|
COMMITTEE
| 2,015 |
CASE OF PODVEZKO v. UKRAINE
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
|
André Potocki;Ganna Yudkivska;Vincent A. De Gaetano
|
4. The applicant was born in 1976. 5. On 29 December 2009 a police investigator initiated criminal proceedings against the applicant and charged him with fraudulent appropriation of property. On the same day the applicant was placed on the list of wanted persons. 6. On 27 April 2010 the applicant was arrested and informed of the charges. 7. On 29 April 2010 the applicant’s pre-trial detention was ordered by a court. 8. On 25 June 2010 the applicant was released under a written undertaking not to abscond. 9. In February 2011 the case was referred to the Dzerzhynskyy District Court of Kharkiv (“the District Court”) for trial. 10. On 4 April 2011 the District Court held a preliminary hearing in the case. Following the request of the prosecutor, it ordered that the preventive measure in respect of the applicant should be changed and that the applicant should be placed in pre-trial detention. The court, paying regard to the fact that the applicant denied his guilt, considered that the applicant could influence witnesses, conceal or remove traces and evidence of the crime. It stated that the applicant was charged with a serious crime and his actual place of residence did not coincide with his registered address. It therefore concluded that the applicant could behave negatively and his isolation was necessary. The court noted that the applicant was of middle age, he was not a disabled person, he did not suffer from chronic illnesses, he had a family and a minor son, and that he worked as director of a company. 11. On a number of occasions during the trial the applicant requested the District Court to change the preventive measure in his respect and release him. 12. On 5 July, 19 August, 23 November 2011 and 17 January 2012 the District Court dismissed the applicant’s requests maintaining the impugned preventive measure. The court referred to its decision of 4 April 2011 and repeated that the applicant’s actual and registered addresses did not coincide, he was charged with a serious crime, and that there were grounds to believe that the applicant could behave negatively, if released. The court also repeated that the applicant was of middle age, he was not a disabled person, he did not suffer from chronic illnesses, he had a family and a minor son, and that he worked as director of a company. The court then found that there had been no grounds to change the preventive measure for health reasons or to apply bail; furthermore, the applicant showed no remorse and had refused to admit his guilt. 13. On 30 January 2012 the District Court found the applicant guilty of fraudulent appropriation of property and sentenced him to six years’ imprisonment and ordered confiscation of his property. 14. The Kharkiv Regional Court of Appeal and the Higher Specialised Civil and Criminal Court of Ukraine upheld the judgment of 30 January 2012 on 9 April 2013 and 6 February 2014 respectively.
| 1 |
test
|
001-142248
|
ENG
|
HRV
|
ADMISSIBILITY
| 2,014 |
SMILJAN PERVAN v. CROATIA
| 4 |
Inadmissible
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
|
1. The applicant, Ms Larisa Smiljan Pervan, is a Croatian national, who was born in 1973 and lives in Čavle. She was represented before the Court by Mr D. Smolić-Ročak, a lawyer practising in Rijeka. 2. 3. The applicant works as a judge in the civil division of the Rijeka Municipal Court (Općinski sud u Rijeci). 4. As a result of the internal assignment of cases at the Rijeka Municipal Court, the applicant was assuming responsibility, as a trial judge, for cases nos. P-878/2008 and P-114/2011. The former concerned a property action brought by a local municipal council against an individual, represented by a lawyer, D.H., and the latter concerned a property dispute between two private parties in which the same lawyer, D.H., was representing the plaintiff. 5. On 4 January 2012 D.H. asked the President of the Rijeka Municipal Court to exclude the applicant from the case. D.H. argued that in the case at issue and several other cases in which she was acting as a lawyer, the applicant had displayed hostility towards her. In particular, at a hearing on 3 January 2012 the applicant had told D.H.’s client that she was not doing her job properly and in the client’s best interest. 6. On 1 March 2012 the President of the Rijeka Municipal Court, after examining a report submitted by the applicant, accepted the request and excluded the applicant from the case on the grounds that the requisite objectivity in the assessment of D.H.’s particular complaints required that the applicant be excluded from the case as the trial judge. The applicant was informed that she could not appeal against that decision. 7. On an unspecified date in 2012 the applicant lodged an appeal with the President of the Rijeka County Court (Županijski sud u Rijeci) against the above-mentioned decision. 8. On 26 April 2012 the President of the Rijeka County Court declared the applicant’s appeal inadmissible on the grounds that the decision at issue was not susceptible to appeal under the Civil Procedure Act, nor did it represent an administrative measure which could be challenged under the Administrative Procedure Act. The President pointed out that the rule on the exclusion of judges had been envisaged for the protection of the rights and interests of parties in the proceedings, and not for the promotion of the interests of judges. The President considered that in any event, in a situation in which a judge insisted on sitting in a case even though one of the parties’ representatives had reported a conflict with the judge, that in itself raised an issue as to the judge’s impartiality. 9. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decision of the President of the Rijeka County Court. 10. On 3 October 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the impugned decision concerned neither her civil rights or obligations, nor any criminal charge against her. The decision of the Constitutional Court was served on the applicant’s representatives on 25 October 2012. 11. On 4 January 2012 D.H. asked the President of the Rijeka Municipal Court to exclude the applicant from the case. D.H. argued that in the case at issue the applicant had displayed hostility towards her, accusing her of not having sufficient legal knowledge and of failing to provide the proper legal instructions to her clients. As a result, the clients’ respect for DH had diminished. 12. The President of the Rijeka Municipal Court, after examining a report submitted by the applicant, accepted the request and on 1 March 2012 excluded the applicant from the case on the grounds that the requisite objectivity in the assessment of D.H.’s particular complaints required that the applicant be excluded from the case as the trial judge. The President indicated that the decision was not susceptible to appeal. 13. On an unspecified date in 2012 the applicant appealed against the above-mentioned decision to the President of the Rijeka County Court, arguing that there had been various substantive and procedural flaws. 14. On 26 April 2012 the President of the Rijeka County Court declared the applicant’s appeal inadmissible, reiterating the same reasons as it had given in case no. P-878/2008 (see paragraph 8 above). 15. The applicant then lodged an administrative action before the Rijeka Administrative Court (Upravni sud u Rijeci) and a constitutional complaint before the Constitutional Court. She argued that the decision of the President of the Rijeka County Court had affected her right to the normal performance of judicial work in the given case, as well as her professional dignity and the possibility of attaining her objectives. 16. On 29 June 2012 the Rijeka Administrative Court declared the applicant’s administrative action inadmissible. The relevant part of the decision reads: “This court considers that the impugned decision does not concern any of the plaintiff’s rights or interests. Therefore, one of the cumulative prerequisites in order for an issue to be considered an administrative matter has not been met. The purpose of the rules on the exclusion of judges is to ensure objectivity in the conduct of proceedings. Objectivity is important for the protection of the parties’ rights and legality, not for the subjective rights and interests of judges. ... The exclusion of a judge does not affect his or her rights under [the law on the courts organisation].There is no right of a judge to act in a particular case because the assignment of cases is regulated under the provisions on the organisation of the courts. The exclusion cannot be considered as an obstacle for a judge in reaching his or her objectives because the judge can work on other cases which have been assigned to him or her. ... Furthermore, this court finds that the exclusion of a judge from a case does not affect his or her professional dignity. The provisions on exclusion ensure the impartiality of a judge in a given case, and it is a situation which every judge may encounter, irrespective of his or her professional qualities. Moreover, a decision on exclusion does not concern the professional qualities of a judge. ... Lastly, against the above background, [this court finds that] the exclusion of a judge is not an administrative matter and thus the decision on exclusion is not an administrative act.” 17. The applicant lodged an appeal against the above decision with the High Administrative Court (Visoki Upravni sud Republike Hrvatske), reiterating her previous arguments. 18. On 27 September 2012 the High Administrative Court declared the applicant’s appeal inadmissible on the grounds that an appeal against the decision of the Rijeka Administrative Court was not allowed under the relevant domestic law. 19. The applicant then lodged a constitutional complaint before the Constitutional Court, challenging the decision of the High Administrative Court. 20. On 3 October 2012 the Constitutional Court declared the applicant’s constitutional complaint against the decision of the President of the Rijeka County Court (see paragraph 15 above) inadmissible on the grounds that the impugned decision concerned neither her civil rights or obligations, nor any criminal charge against her. 21. On 31 January 2013 the Constitutional Court, relying on the same reasons, declared the applicant’s constitutional complaint against the decision of the High Administrative Court (see paragraph 19 above) inadmissible. The decision of the Constitutional Court was served on the applicant’s representatives on 19 February 2013. 1. Constitution 22. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske; Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) reads as follows: Article 29 “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 23. The relevant part of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske; Official Gazette no. 49/2002) reads as follows: Section 62 “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations, or a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right) ... 2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.” 3. Civil Procedure Act 24. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku; Official Gazette nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, 123/2008, and 57/2011) provide as follows: Section 71 “A judge ... shall be disqualified from exercising his functions: ... 7. if other circumstances exist which cast doubt on his or her impartiality.” “(1) The President of the court shall decide on the party’s request for the exclusion, unless otherwise provided under the law. ... (4) When deciding on the request for exclusion [the President of the court] shall obtain a statement from the judge concerned and, if necessary, further information. (5) The decision by which the request for exclusion is accepted is not susceptible to appeal and the decision rejecting or dismissing the request is not susceptible to special appeal.” 4. Administrative Procedure Act 25. The relevant provision of the Administrative Procedure Act (Zakon o općem upravnom postupku; Official Gazette no. 47/2009) provide as follows: “(1) An administrative matter is any issue in which a public authority in administrative proceedings decides on the rights, obligations and legal interests of a physical or legal person or other entities (hereinafter: the parties) by immediate application of the law, regulations and other general decisions relevant to a particular administrative issue. (2) An administrative matter is also any issue which is so designated under the law.” 5. Courts Act 26. The relevant provisions of the Courts Act (Zakon o sudovima; Official Gazette nos. 150/2005, 16/2007, 113/2008, 153/2009, 116/2010, 122/2010, 27/2011, 57/2011, and 13/2011) provide: “(1) The conduct of a judge must be governed with due respect for his or her dignity and the dignity of the judiciary, and must not put into question his or her professional impartiality and independence, or the independence of the judiciary.” “A judge has the following rights: - adequate remuneration, - a bonus payable when he or she is transferred to another court, - adequate compensation, instead of a salary, when he or she is unable to perform his or her judicial function, - pension, disability and health insurance, and all rights pertaining thereto, in accordance with the relevant general regulations, - leave granted to judicial staff and annual leave of 30 working days, - compensation for the relevant expenses as provided for under the law, - an allowance in the event of separation from his or her family, and travel expenses to the place of residence of his or her family at weekends and during national holidays, - compensation for official journeys and expenses related to his or her judicial duty, - continuing education and specialisation training from the funds allocated for that purpose. (2) The amount of bonus payable to a judge transferred to another court shall be determined by ordinance of the Minister of Justice.” 6. Rules of Courts 27. The relevant provision of the Rules of Courts (Sudski poslovnik; Official Gazette nos. 158/2009, 3/2011, 34/2011, 100/2011, 123/2011, 138/2011, and 38/2012) provides: “(1) Court administration issues are all those measures required to ensure adequate working conditions and functioning of the courts. (2) Those are, in particular: ... - professional measures for guaranteeing the rights and duties of civil servants and judges in the courts, ...”
| 0 |
test
|
001-160428
|
ENG
|
UKR
|
CHAMBER
| 2,016 |
CASE OF POMILYAYKO v. UKRAINE
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
5. The applicant was born in 1968 and lives in Kharkiv. 6. At the beginning of November 2008 some equipment was stolen from the enterprise at which the applicant worked. 7. The Kharkiv Ordzhonikidze District Police Department invited the applicant and one of her colleagues for questioning in respect of the theft. 8. On 8 November 2008, at 11.15 a.m., the applicant came to the police station. 9. At about 11.35 a.m. on 8 November 2008 a senior detective officer, T., accompanied the applicant to the fourth floor of the police station. He asked her to wait in the corridor and entered office no. 56. Five minutes later the applicant heard a woman’s scream emanating from that office. T. opened the door and directed an officer passing by to take the applicant to his office. She was made to wait there for about twenty minutes. Then T. took her to office no. 56. He pushed her inside, twisted her arms behind her back and handcuffed her, even though she had offered no resistance. 10. T. and his colleague, S., who was also in the office, intimidated the applicant with a view to making her confess to the investigated theft. They told her that her colleague, Ms L., had already started to “crack”. The applicant noticed Ms L.’s belongings on the floor. She concluded that it was her scream that she had heard. 11. Having failed to obtain a confession from the applicant, T. and S. made her sit on a chair, put a plastic bag over her head and started to strangle her. At the same time they struck her head, face and mouth so that she could not bite through the bag. The applicant fainted several times. When she told the officers she needed to use the toilet, S. hit her in the stomach and the head. She fainted once again and urinated involuntarily. Sometime later the applicant noticed the presence of another officer, P., in the office. 12. After several hours of ill-treatment, the applicant was taken to another office where she stayed for about twenty minutes. Thereafter she was brought before a female officer, who conducted her formal questioning. 13. At about 6 p.m. the applicant signed the official report of the questioning. She was then taken to the office of the head of the search unit, who stated that she was the main suspect in the theft case and that all her colleagues had indicated her as the likely thief. The applicant complained about her ill-treatment. Her complaint was ignored. 14. She was taken again to office no. 56, where the officers threatened her and tried to pressure her into confessing. She repeatedly refused to do so and professed her innocence. The applicant was forced to write a statement that she had no complaints about the way the police had treated her. 15. At about 8 p.m. on 8 November 2008 she was released. 16. The applicant submitted to the Court five colour photographs of herself in which extensive bruising on her both arms and forearms is visible. 17. On 9 November 2008 (the day following her release) the applicant felt unwell and called an ambulance. 18. From 9 to 27 November 2008 she underwent in-patient hospital treatment for a closed head injury, concussion, soft tissue contusions on the head, upper and lower limbs, bruising of the abdominal wall, lumbar osteochondrosis and asthenia. 19. On 9 November 2008 the hospital authorities informed the Ordzhonikidze Police Department about the applicant’s injuries allegedly inflicted on her by police officers. 20. On 10 November 2008 the applicant complained to the Kharkiv Ordzhonikidze District Prosecutor’s Office (“the Ordzhonikidze Prosecutor’s Office”) about her ill-treatment. Ms L. lodged a similar complaint. 21. On 18 November 2008 the police department refused to open a criminal case following the information from the hospital administration. 22. On 12 December 2008 the Ordzhonikidze Prosecutor’s Office opened a criminal case against the police officers on suspicion of their exceeding their powers by engaging in violent and degrading treatment. As a result, on 16 December 2008 the prosecutor also quashed the ruling of 18 November 2008. 23. After her discharge from hospital, the applicant remained on sick leave until 19 December 2008. 24. On 15 January 2009 the investigator seized the trousers which the applicant had been wearing on 8 November 2008. A forensic immunological examination discovered traces of her urine on them. 25. From 27 November 2008 until 26 January 2009 a forensic medical expert evaluation was carried out with a view to establishing the applicant’s injuries and their nature. That evaluation was based on her medical file, as well as a medical examination of her. The expert considered it established that, at the time of her hospitalisation, the applicant had had bruises to both arms that had been inflicted by blunt objects a day to three days previously. The expert stated that it was impossible to establish more precisely the time at which those injuries had been inflicted. As regards the soft tissue contusions, the expert did not find it necessary to take that diagnosis into account as being based merely on a personal opinion of the doctor who had examined the applicant. The same doctor’s diagnoses of a closed head injury and concussion were considered by the expert as not sufficiently supported by “clinical data”. Lastly, the expert report stated that the applicant was suffering from neurotic asthenia, but that it was impossible to establish its origin. 26. On 9 February 2009 a forensic expert evaluation was carried out of the applicant’s handwritten statement on the official report on the questioning of 8 November 2008. The expert concluded that she had been “in an unusual state” when writing that note. 27. On the same date officer T. challenged the decision of 12 December 2008 before the Ordzhonikidze District Court (“the Ordzhonikidze Court”). 28. On 24 February 2009 the Ordzhonikidze Court rejected his complaint. 29. On 19 March 2009, however, the Kharkiv Regional Court of Appeal (“the Court of Appeal”) quashed that decision and remitted the case to the first-instance court for fresh examination. 30. Between 3 March and 2 April 2009 another forensic medical expert evaluation of the applicant’s injuries was carried out. It concluded that she had sustained numerous bruises on her arms, shoulders and thighs. These could have been inflicted at the time and in the circumstances described by her. Because of the delay before the first forensic medical examination was undertaken, it appeared impossible to reach more specific findings. 31. On 22 April 2009 the Ordzhonikidze Court quashed the prosecutor’s decision of 12 December 2008. This ruling was quashed by the Court of Appeal on 7 May 2009. 32. On 5 June 2009 the Ordzhonikidze Court once again quashed the prosecutor’s decision of 12 December 2008. On 25 June 2009 this ruling too was quashed by the Court of Appeal. 33. On 18 November 2009 the applicant and Ms L. identified the officers who had ill-treated them from photographs shown to them by the investigator. 34. On 4 February 2010, however, the investigator closed the criminal case against the police officers, citing a lack of proof of their guilt. 35. On 30 September 2010 the Ordzhonikidze Court upheld that decision. 36. On 15 November 2010 the Court of Appeal quashed the ruling of the first-instance court and remitted the case to it for fresh examination. 37. On 21 December 2010 the Ordzhonikidze Court allowed the applicant’s complaint and quashed the investigator’s decision of 4 February 2010. 38. On 13 January 2011 the Court of Appeal upheld that ruling. 39. In March and May 2011 the applicant enquired about the progress of the investigation. Her enquiries received no answer.
| 1 |
test
|
001-161407
|
ENG
|
UKR
|
CHAMBER
| 2,016 |
CASE OF ZAKSHEVSKIY v. UKRAINE
| 3 |
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);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 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
5. The applicant was born in 1972 and is currently serving a sentence in prison no. 100. 6. On 1 April 2000 criminal proceedings were instituted in Donetsk in connection with a robbery committed in Dzerzhinsk. 7. On 2 June 2000 criminal proceedings were instituted in Kharkiv in connection with a robbery committed on the Kharkiv-Dnipropetrovsk-Simferopol road. 8. On 9 August 2001 criminal proceedings were instituted in Yevpatoriya in connection with a murder and attempted murder committed in the course of an armed robbery (“the murder proceedings”). 9. On 30 October 2001 the Chervonodzerzhynskiy District Court (“the District Court”) granted the prosecutor’s request to put the applicant, a former police officer, on remand as a suspect in the criminal proceedings concerning the robbery on the Kharkiv-Dnipropetrovsk-Simferopol road. The District Court held that, as the applicant was suspected of having committed a serious crime and had absconded during the investigation, his detention was necessary to prevent him from reoffending. The court also noted that the applicant’s personality was to be taken into consideration, without giving any further details. On the same date, the applicant’s name was put on a wanted list. 10. On 11 November 2001 the applicant was arrested in accordance with the District Court decision of 30 October 2001. He submitted that he had presented himself to the police voluntarily once he had become aware that he was wanted. On the same day, he drafted a “statement of voluntary surrender” (явка з повинною) in which he confessed to committing, as part of a criminal group, a number of armed robberies on the Kharkiv-Dnipropetrovsk-Simferopol road, as well as one in the town of Yevpatoriya. He stated that, in the course of the latter, he had used a firearm against the victim. The applicant also provided more details in writing about the above crimes and his acquaintance with his accomplices and informed the police about two other armed robberies which he and his accomplices had committed in the town of Dzerzhynsk, as well as about other crimes of which he was aware. 11. On 12 November 2001 the applicant was charged with armed robbery and questioned. Before being questioned he was informed of his procedural rights but signed a waiver of his right to legal assistance. He made similar statements to those given to the police the day before, including about the shooting incident in Yevpatoriya. On the same day, he familiarised himself with the decision of 30 October 2001, against which he was entitled to appeal. He did not appeal against the decision. 12. On 13 November 2001, in the absence of a lawyer, the applicant was questioned in the context of the robbery proceedings. The Government submitted – and this is not contested by the applicant – that the applicant again waived his right to a lawyer, having once again been informed of his rights. During the questioning, the applicant, apart from giving information on the robberies, reiterated his statements regarding the shooting which had occurred in Yevpatoriya. He was further questioned in that regard. 13. On 21 November 2001 a lawyer, D., was appointed to represent the applicant. On the same day, in the absence of a lawyer, the applicant was questioned as a suspect in the murder proceedings. He admitted to shooting a victim in the course of the armed robbery but denied that he had done so intentionally. 14. On 22 November 2001, in the presence of his lawyer, the applicant was charged with murder and attempted murder, and questioned as an accused. He admitted his guilt in respect of the armed robbery but denied the murder charges. A reconstruction of the crime scene was carried out. 15. On 12 December 2001 the applicant was charged with armed robbery causing grievous bodily harm. He waived his right to a lawyer during questioning. 16. On 13 December 2001 the applicant was charged with premeditated armed robbery as part of a criminal group. He again waived his right to a lawyer. 17. On 4 January 2002 the District Court extended the applicant’s pre-trial detention to four months. The applicant did not appeal against this decision. 18. On 8 February 2002 the criminal proceedings concerning robberies on the Kharkiv-Dnipropetrovsk-Simferopol road were joined with the murder proceedings. 19. On 7 March 2002 the Kharkiv Regional Court of Appeal, having heard the investigator and the prosecutor, and referring to “the applicant’s personality”, albeit without assessing it, the seriousness of the charges against him, and the need for additional time to conduct the necessary investigative measures, extended the applicant’s detention to six months. The decision was not amenable to appeal. 20. On 12 March 2002 B. was appointed as the applicant’s lawyer. 21. On 4 April 2002 the criminal proceedings regarding the robberies in Dzerzhynsk were joined with the other proceedings against the applicant. 22. On 8 April 2002 the Kharkiv Regional Court of Appeal, having heard the investigator and the prosecutor, extended the applicant’s detention to nine months on the same grounds as those in its ruling of 7 March 2002. The decision was not amenable to appeal. 23. On 10 July 2002 L. replaced B. as the applicant’s lawyer. On the same day, the applicant was charged with a number of crimes, including banditry, several counts of armed robbery, premeditated murder and attempted murder, and questioned. He pleaded not guilty as charged and refused to give further testimonies. 24. On 18 November 2002 amended charges were brought against the applicant and he was questioned again. 25. On 28 December 2002 the applicant was granted access to the case file. According to the Government, no investigative measures were conducted that day. 26. After the investigation had been completed the case was referred to the Donetsk Regional Court of Appeal (“the Court of Appeal”), acting as a first-instance court, for trial. The decision to do so was not amenable to appeal. 27. On 12 June 2003 the applicant requested the Court of Appeal to change his preventive measure to a non-custodial one. 28. On 17 December 2003 the Court of Appeal remitted the case for additional investigation, holding that the applicant’s rights of defence had been breached. It found, inter alia, that the applicant had officially been charged with offences other than those considered by the trial court. It further established that on 10 July, 18 November and 28 December 2002 investigative measures had been carried out in the absence of the applicant’s lawyer, contrary to the requirements of domestic law. The court also decided, without giving reasons or setting a time-limit, that the applicant would remain in detention. The applicant appealed in cassation against that decision and requested, inter alia, that the preventive measure, namely the detention ordered be lifted. 29. On 29 April 2004 the Supreme Court heard the applicant’s appeal in the presence of the prosecutor. It upheld the decision of the Court of Appeal of 17 December 2003 and stated, without giving any reasons, that there were no grounds for changing or discontinuing the preventive measure imposed on the applicant. 30. On 2 August 2004 V. was appointed as the applicant’s lawyer. 31. On 6 August 2004, in the presence of his lawyer, the applicant was charged with a number of criminal offences, including banditry, several counts of armed robbery, premeditated murder and attempted murder, and questioned. He admitted to his acquaintance with the co-accused, but pleaded not guilty on all charges. 32. On 20 August 2004, in the presence of his lawyer, amended charges were brought against the applicant. The latter refused to sign or receive copies of the relevant papers as he disagreed with the charges. During further questioning he pleaded not guilty and refused to give any testimony. 33. On 27 August 2004 the applicant and his lawyer were granted access to the case file, and on 3 September 2004 the case was referred for trial. 34. On an unspecified date, the applicant lodged a request for release with the Court of Appeal. 35. On 6 October 2005 the Court of Appeal, having acquitted the applicant on four of the eight charges for lack of proof, found him guilty of banditry, several counts of armed robbery, intentional murder and attempted murder. It sentenced him to life imprisonment with confiscation of all his property. The court based its findings to a large extent on the testimonies of the applicant and his co-defendants given during the pre-trial investigation, having found them to be corroborated by a number of other pieces of evidence. In the part of the judgment which concerns the murder charges, the court referred, in particular, to the “testimonies given by the applicant as a suspect and an accused, including in the presence of a lawyer”. It further dismissed as ill-founded the applicant’s complaints that his rights of defence had been violated and his requests to declare inadmissible his statements obtained in the absence of a lawyer. In this context, when finding the applicant guilty of armed robberies, the court held that, having been informed of his procedural rights, the applicant had voluntarily waived his right to legal representation and that such a waiver had been lawfully accepted by the investigative authorities as robbery charges could not lead to a life sentence. It further held that during questioning on the murder, the applicant had been legally represented and had made his statements in the presence of a lawyer. 36. In addition, the Court of Appeal gave a separate ruling by which it declared inadmissible a number of pieces of evidence related to different charges against the applicant and his co-defendants, as the evidence had been obtained in violation of the defendants’ rights of defence. In particular, as far as the applicant was concerned, apart from the evidence which had been found inadmissible on 17 December 2003, the court further excluded from the body of evidence some of the testimonies given by the applicant on 8 and 9 January 2002. It held that, even though the applicant had allegedly confessed to murdering five people shortly after his arrest, he had nevertheless been questioned as a witness, in the absence of a lawyer. 37. The applicant appealed in cassation against the judgment of 6 October 2005. He stated in particular that there had been insufficient evidence to prove his guilt; he had been ill-treated by the police; on a number of occasions during the pre-trial investigation he had been questioned in the absence of a lawyer and that evidence obtained in violation of his rights of defence had nevertheless been used to secure his conviction. 38. On 19 October 2006 the Supreme Court of Ukraine held a hearing in the presence of the prosecutor, the applicant and his sister – who acted as his representative. On the same day, it upheld the applicant’s conviction of 6 October 2005. It dismissed as unsubstantiated his complaints that his rights of defence had been violated at the pre-trial stage of the proceedings, holding that those complaints had been duly examined and dismissed by the Court of Appeal. It also dismissed as unsubstantiated the applicant’s allegations of ill-treatment by the police. 39. Between 28 July and 13 October 2004 the applicant was held in the Kharkiv pre-trial detention centre no. 27 (“Kharkiv SIZO”), in cell no. 537. He submitted that his cell had been overcrowded: it had measured 16 square metres, contained eight beds for ten people, and detainees had had to take turns to sleep. He also alleged that some of the cellmates had been suffering from tuberculosis. In this context, he submitted written statements made by his cellmates K., G., K.I., P. and O. 40. The applicant’s sister complained to the Governor of Kharkiv SIZO about the conditions of her brother’s detention. By a letter dated 13 June 2005 the Governor informed her that the cell in question had been designed to accommodate eight people and that no more than eight inmates had been held in that cell during the applicant’s detention. The Governor further informed her that, according to medical documents concerning K., G., K.I., P. and O., none of them had been suffering from an active form of tuberculosis. He stated that the applicant had never been in contact with anyone suffering from such a disease whilst in Kharkiv SIZO. 41. After his conviction on 6 October 2005, the applicant was transferred to the high-security wing of the Donetsk pre-trial detention centre no. 5 (“Donetsk SIZO”). According to the applicant, he was handcuffed whenever he left his cell, including during daily walks and meetings with his relatives. 42. In Kharkiv SIZO the applicant was held in cells nos. 27 and 537 measuring 24.2 square metres each, designed to accommodate eight detainees. The cells were equipped with a dining table, a bench, a washstand and a toilet, which was separated from the living area by a brick partition. There was natural ventilation and light through windows; artificial lighting allowed inmates to read and write without damaging their eyesight. The temperature in the cells was between 18oC and 20oC. Running water was constantly available in the cells. All detainees were provided with bed linen and clothes in accordance with domestic standards. 43. As regards the applicant’s allegations that he had shared his cell with persons suffering from tuberculosis, the Government pointed out that the domestic legislation provided that persons suffering from that disease should be kept separately from healthy detainees. The Government could not provide any information about the applicant’s cellmates and their state of health, however, because the time-limit for keeping the relevant documents had expired and the records had been destroyed. They noted that the applicant had not complained that his state of health had worsened in detention. 44. Whenever the applicant was taken out of his cell and escorted within the Donetsk SIZO, handcuffs were used pursuant to the relevant domestic legislation. The Government contested the applicant’s statement that he had been handcuffed during his daily walks and meetings with relatives, as the former was prohibited by the relevant domestic regulations.
| 1 |
test
|
001-177304
|
ENG
|
LTU
|
ADMISSIBILITY
| 2,017 |
FALKAUSKIENĖ v. LITHUANIA
| 4 |
Inadmissible
|
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque
|
1. The applicant, Ms Aldona Falkauskienė, is a Lithuanian national who was born in 1929 and lives in Girkalniai, Klaipėda Region. She was represented before the Court by Mr V. Falkauskas, a lawyer practising in Joniškis. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The historical background to the case relating to the Soviet occupation and annexation of Lithuania from 1940-1990 is summarised in Vasiliauskas v. Lithuania ([GC], no. 35343/05, §§ 11-14, ECHR 2015). The historical background relating to the circumstances of the re-establishment of the Lithuanian independence is summarised in Kuolelis and Others v. Lithuania (nos. 74357/01 and 2 others, §§ 9-25, 19 February 2008). 5. On 11 March 1990 the Supreme Council (Parliament) elected in the first free parliamentary elections in Lithuania under Soviet rule adopted the Act on the Re-establishment of the State of Lithuania. That Act declared the Republic of Lithuania to be an independent and sovereign State and declared that Lithuania’s incorporation into the Soviet Union had been null and void. On the same day the Supreme Council adopted the Provisional Fundamental Law (a provisional constitution) which set out the constitutional principles of the newly re-established State of Lithuania and permitted any earlier laws and other legal instruments to remain in force provided that they were not incompatible with the Provisional Fundamental Law. 6. On 13 March 1990 the Supreme Council adopted Regulation No. I-18 “On the status of enterprises, institutions and organisations of the Union, or of the Union and its republics, located on the territory of Lithuania” (Dėl Lietuvos teritorijoje esančių sąjunginio ir sąjunginio-respublikinio pavaldumo įmonių, įstaigų ir organizacijų statuso) which declared that all such enterprises, institutions and organisations henceforth came within the jurisdiction of Lithuania, and that issues relating to their takeover would be decided through negotiation with the Soviet Union (see paragraph 38 below). 7. On 16 March 1990 the Government of Lithuania adopted Regulation No. 73 “On the banks of the Republic of Lithuania” which was designed to implement aforementioned Regulation No. I-18 with respect to territorial branches of Soviet banks operating in Lithuania (see paragraph 6 above). Amongst other things, it provided that the Lithuanian branch of the Bank of Foreign Economic Affairs of the USSR (also known as “Vneshekonombank”, TSRS ekonominių ryšių su užsieniu bankas) was to be restructured and transformed into the Lithuanian Bank of Foreign Economic Affairs (Lietuvos ekonominių ryšių su užsieniu bankas). The Regulation established a special commission for taking over the relevant assets, liabilities, funds and reserves from the Soviet banks concerned, and ordered it to promptly begin negotiations with those banks concerning the takeover (see paragraph 39 below). 8. On 11 March 1992 the Bank of Foreign Economic Affairs of the former USSR issued Order No. 16 “On the termination of operations and subsequent liquidation of the branches of the Bank of Foreign Economic Affairs of the USSR located on the territories of the former republics of the USSR”, which liquidated its branches in “sovereign States – the former republics of the USSR” and included Lithuania. It ordered the heads of the territorial branches to terminate banking operations. The Lithuanian branch of the bank terminated its activities on 15 March 1992. 9. On 2 April 1992 the Government of Lithuania adopted Regulation No. 223 “On the protection of currency deposits” (amended on 30 April 1992) which required the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR, which was then being liquidated, to transfer, by 1 May 1992, to the Bank of Lithuania (the central bank) the remainder of the funds which had been deposited with it by Lithuanian residents. Regulation No. 223 also provided that deposits transferred to the Bank of Lithuania would be guaranteed by the budget funds of the Republic of Lithuania (see paragraph 40 below). 10. On 25 October 1992 the Constitution of the Republic of Lithuania was adopted in a referendum. It entered into force on 2 November 1992. 11. In April 1993 the Ministry of Finance and the Bank of Lithuania informed the Government that the Lithuanian Bank of Foreign Economic Affairs had not been registered as an independent bank in Lithuania (see paragraph 37 below) and that it had not taken over the debts and obligations of the Bank of Foreign Economic Affairs of the former USSR. They expressed the view that the question of the return of foreign currency deposits to Lithuanian nationals should be decided via negotiations between the Lithuanian and Russian governments. 12. On 25 June 1993 the currency of the Republic of Lithuania – Lithuanian litas (LTL) – entered into circulation (it was replaced by the euro (EUR) on 1 January 2015). From 1 April 1994 until 1 February 2002 the LTL was pegged to the US dollar (USD) at the exchange rate of 4 LTL to 1 USD. 13. On 20 June 1995 the Convention and its Protocol No. 1 entered into force in respect of Lithuania. 14. On 30 November 1995 the Bank of Foreign Economic Affairs of the former USSR sent a letter to its Lithuanian branch stating that on 14 March 1992 (that is, the day before the latter terminated its operations see paragraph 8 above), the Lithuanian branch had had at its disposal approximately USD 1,100,000, and that the debt owed by the Bank of Foreign Economic Affairs of the former USSR to its Lithuanian branch for the funds which had been deposited therein amounted to approximately USD 9,200,000. On 15 June 1995 the representatives of the Soviet bank and its Lithuanian branch signed a joint liquidation balance declaration. 15. Between March 1993 and March 1999 the Lithuanian authorities adopted several legal instruments providing for partial compensation to citizens who had deposited funds with the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR and had been unable to recover them (see paragraphs 42-43 below). 16. As submitted by the respondent Government, the bilateral Lithuanian-Russian working group on the return of the funds deposited with the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR held its first meeting in October 1997. In June 1999, during its third meeting, the working group adopted a draft procedure for the return of those deposits. In October 2011, during the eighth meeting of the working group, it was agreed that the technical and financial questions relating to the implementation of the draft procedure needed to be resolved more speedily; however, no further meetings have been held since then. According to the respondent Government, the Russian Government has failed to take any concrete action, and some of the positions which it expressed in the negotiations were not acceptable to Lithuania (see paragraph 41 below). 17. In May 1991 the applicant received an inheritance of USD 15,800 from the USA. On 12 September 1991 she submitted a written request to the Lithuanian Bank of Foreign Economic Affairs to open a bank account in US dollars. Following her request, an account was opened and a record of the inheritance was made in that account. The Government submitted that the applicant’s inheritance had been actually transferred to the Bank of Foreign Economic Affairs of the USSR and not to the Lithuanian bank (see their observations in paragraph 53 below; see the applicant’s observations in reply in paragraph 56 below). 18. In February 1992 the applicant went to the Lithuanian Bank of Foreign Economic Affairs and asked to withdraw the entire amount from her account. She was informed by the bank’s management that it did not have sufficient funds to satisfy all requests for cash withdrawal, so any such requests could be satisfied only in part. The applicant was given USD 2,000. 19. In April 1993 the applicant received compensation of USD 400 in line with the Government’s regulation on this matter. In August 1994 she received additional compensation of USD 500, and in April 1996 additional compensation of LTL 2,000 (see paragraphs 15 above and 42 below). The total compensation received by the applicant pursuant to the regulations in question amounted to LTL 5,600, or USD 1,400 when converted at the currency exchange rate applicable at that time (see paragraph 12 above). 20. The applicant subsequently sent written requests to various State institutions and officials enquiring about the possibility of recovering the remainder of her currency deposit. On 10 May 2001 the Ministry of Finance informed her that the Lithuanian and Russian authorities had agreed on a procedure for returning foreign currency deposits which had been deposited with the since-liquidated Bank of Foreign Economic Affairs of the former USSR (see paragraph 16 above) and that the Lithuanian Government would adopt appropriate decisions concerning the return of expropriated deposits to its citizens once the Russian Federation – the successor to the USSR returned them. The letter also noted that the applicant had already received compensation in line with the Government’s regulations of 1993, 1994 and 1996 (see paragraph 19 above). On 26 April 2002 the Ministry of Finance informed the applicant that the negotiations with the Russian authorities were ongoing, and that it had addressed the question of returning residents’ deposits to the Ministry of Finance of the Russian Federation “many times”, but had not received any official response. The applicant sent further letters to the authorities, but received essentially the same response on 5 December 2002 and 15 January 2003. 21. In October 2001 the applicant sent a letter to the Russian bank “Vneshekonombank” (formerly known as the Bank of Foreign Economic Affairs of the USSR) asking about her deposit, but on 8 November 2001 the bank replied that the applicant’s account had been “nationalised by the Lithuanian authorities” and that she should address her requests to them. 22. On 7 December 2006 the applicant brought a civil claim against the Lithuanian State demanding the return of her deposit, together with the interest payable since 1991 ‒ which the applicant estimated at between 7.5% and 50% per annum for different periods ‒ and compensation for nonpecuniary damage. Her claim amounted to LTL 467,000 (approximately EUR 135,000) in total. 23. In its response to the applicant’s claim, the Ministry of Finance submitted that the applicant’s deposit had been taken over not by the Lithuanian authorities but by the USSR because the Lithuanian Bank of Foreign Economic Affairs had never been de facto established as an independent bank and it had not taken over any assets or liabilities of the Bank of Foreign Economic Affairs of the USSR. The Ministry also submitted that the negotiations with the Russian authorities concerning the return of all such expropriated deposits were still ongoing. 24. On 11 February 2008 the Vilnius Regional Court dismissed the applicant’s claim. It found that the Lithuanian branch of the Bank of Foreign Economic Affairs of the USSR had never been de facto restructured as an independent Lithuanian bank because the Soviet bank had never transferred its assets, liabilities, funds and reserves to the Lithuanian authorities; furthermore, the Lithuanian Bank of Foreign Economic Affairs had never been registered as an independent bank with the Bank of Lithuania, as required by domestic law (see paragraph 37 below). Accordingly, the court held that in September 1991 the applicant’s inheritance had been transferred to the Soviet bank and not to a Lithuanian bank. Relying on the submissions of the Ministry of Finance, the court also held that during its liquidation the Soviet bank had not complied with the Lithuanian Government’s requirement to transfer all the deposits of Lithuanian nationals to the Bank of Lithuania, and deposits which had not been transferred were not guaranteed by the Lithuanian budget funds (see paragraph 9 above). The court therefore concluded that the Lithuanian State was not under an obligation to repay to the applicant the full amount of her deposit, nor the interest or the compensation for non-pecuniary damage. The court also observed that the Government had already fulfilled its obligation to partly compensate the applicant for her lost deposit (see paragraph 19 above). 25. The applicant appealed against that judgment, arguing that the Vilnius Regional Court had erred in finding that the Lithuanian Bank of Foreign Economic Affairs had not been established as an independent bank and that her deposit had not been taken over by the Lithuanian authorities. She submitted that legal instruments adopted by the Lithuanian authorities had unequivocally established that the Lithuanian Bank of Foreign Economic Affairs came within the jurisdiction of Lithuania (see paragraphs 6, 7 and 9 above), and Lithuania was therefore under an obligation to return the applicant’s deposit. 26. On 7 November 2008 the Court of Appeal dismissed the applicant’s appeal and upheld the first-instance judgment. The court reiterated that, despite various legal instruments providing for the restructuring of the Bank of Foreign Economic Affairs of the USSR as a Lithuanian bank, no such Lithuanian bank had actually been established. The court also observed that until 15 March 1992 the Soviet bank had continued to provide cash withdrawals to its depositors (see paragraph 8 above) ‒ including the applicant (see paragraph 18 above). The Soviet bank subsequently acknowledged that it was indebted to individuals who had deposited their funds with its Lithuanian branch (see paragraph 14 above), and the questions relating to those debts were being addressed in the ongoing negotiations between the Lithuanian and Russian authorities (see paragraph 16 above). The court therefore dismissed the applicant’s claim that the Lithuanian State was under an obligation to pay to her the full amount of her deposit, together with interest and compensation for nonpecuniary damage. 27. The applicant submitted an appeal on points of law, but on 14 April 2009 the Supreme Court dismissed it and upheld the findings of the lower courts in their entirety. It reiterated that, having established that the Lithuanian authorities had not de facto taken over the assets of the Soviet bank, no obligation to return to the applicant deposit kept in the latter bank could arise. The Supreme Court also observed that the fact that the negotiations between the Lithuanian and Russian authorities had not yet produced a positive result could not constitute grounds for obliging the Lithuanian State to pay to the applicant the amount she claimed. 28. The applicant initially submitted her claim of 7 December 2006 (see paragraph 22 above) to the Vilnius Regional Administrative Court. In line with domestic law, such a claim was not subject to any court fees (see paragraph 46 below). On 16 May 2007 a panel of judges specialising in the determination of jurisdictional disputes ruled that the applicant’s case related to a pecuniary claim and should therefore have been brought before a court of general jurisdiction and not before an administrative court (see paragraph 45 below). The applicant’s claim was therefore transferred to the Vilnius Regional Court. 29. On 24 May 2007 the Vilnius Regional Court ordered the applicant to pay court fees which, in line with domestic law (see paragraph 47 below), amounted to LTL 8,670 (approximately EUR 2,510). 30. The applicant asked the court to exempt her from the obligation to pay court fees. She submitted that she had lodged her claim before an administrative court and that the claim had been transferred to a court of general jurisdiction against her will. She also argued that applying different rules concerning court fees in administrative and civil court proceedings was unfair and discriminatory. However, the Vilnius Regional Court refused to examine the applicant’s request on the grounds of failure to comply with the formal requirements. 31. The applicant was subsequently granted State-guaranteed legal aid, whereby 50% of her legal expenses were covered by the State. As a result, on 21 June 2007 the Vilnius Regional Court reduced the court fees payable by the applicant by 50% and ordered her to pay LTL 4,330 (approximately EUR 1,250). The applicant appealed against that decision, asking to be completely exempted from paying court fees. She raised the same arguments as in her previous request (see paragraph 30 above) and also submitted that the fees were excessively high and restricted her right of access to court, but she did not make any reference to, or provide any details about her financial situation. The Court of Appeal dismissed her appeal, and the applicant subsequently paid the amount demanded. 32. After the Vilnius Regional Court had dismissed the applicant’s civil claim, the latter lodged an appeal (see paragraphs 24-25 above). In line with domestic law, the court fees for the submission of an appeal were calculated in the same way as those for the initial claim (see paragraph 47 below). The applicant was therefore ordered to pay LTL 4,330 (approximately EUR 1,250). 33. The applicant paid half of the court fees and asked the court to allow her to defer payment of the remaining half until after examination of her appeal, as provided in Article 84 of the Code of Civil Proceedings (hereinafter “the CCP”; see paragraph 48 below). She submitted that she was retired, that her retirement allowance was her only income, and that the total cost of the court fees was nearly equal to her annual income. On 27 March 2008 the Vilnius Regional Court allowed the applicant’s request and postponed the payment of half of the court fees until after the examination of the appeal. After the Court of Appeal had adopted its judgment in the civil proceedings (see paragraph 26 above), the applicant paid the remaining half of the court fees. 34. When the applicant submitted an appeal on points of law to the Supreme Court (see paragraph 27 above), she asked to be exempted from the obligation to pay court fees, or to defer payment until after the examination of her appeal on points of law. The applicant argued that court fees constituted an unjustified and discriminatory restriction on her right to access to court. She also submitted that her income was insufficient to afford the court fees demanded of her in the present proceedings. On 13 February 2009 the Supreme Court postponed the payment of the court fees. After dismissing the applicant’s appeal on points of law (see paragraph 27 above), the Supreme Court noted that the domestic law did not enable it to completely exempt the applicant from paying court fees (see paragraph 48 below). However, because of her difficult financial situation, the Supreme Court decided to reduce the amount demanded and ordered the applicant to pay LTL 100 (EUR 29). The applicant paid that amount. 35. Article 44 of the Provisional Fundamental Law, adopted on 11 March 1990 and in force until 2 November 1992, provided, in its relevant parts: “The Republic of Lithuania guarantees to all holders of property rights the opportunity to independently manage and use their possessions in line with the Lithuanian laws ... All holders of property rights are entitled to equal legal remedies. The Republic of Lithuania shall protect the rights of property holders in other states.” 36. Article 23 of the Constitution of the Republic of Lithuania, in force since 2 November 1992, provides: “Property shall be inviolable. The rights of ownership shall be protected by law. Property may be taken only for the needs of society according to the procedure established by law and shall be justly compensated for.” 37. Article 16 of the Law on the Bank of Lithuania, entitled “Establishing credit institutions”, in force from 13 February 1990 (i.e. before the restoration of the independence of Lithuania) until 23 December 1994, provided, in relevant parts: “Any credit institution in the Republic [of Lithuania] can be established only with the permission of the Bank of Lithuania ... All established credit institutions shall be registered in the registration book of the Bank of Lithuania. On the day of the registration, the credit institution becomes a legal entity and acquires the right to conduct banking operations.” 38. Regulation No. I-18 of the Supreme Council of the Republic of Lithuania of 13 March 1990 “On the status of the enterprises, institutions and organisations of the Union, or of the Union and its republics, located on the territory of Lithuania” (Dėl Lietuvos teritorijoje esančių sąjunginio ir sąjunginio-respublikinio pavaldumo įmonių, įstaigų ir organizacijų statuso) provides, in relevant parts: “The Supreme Council of the Republic of Lithuania hereby decides: 1. To establish that all State enterprises, institutions and organisations of the Union, or of the Union and its republics, located on the territory of Lithuania on the day of the adoption of the present Regulation, henceforth come within the jurisdiction of Lithuania (pereina Lietuvos Respublikos jurisdikcijai); ... 4. To resolve the issues related to the takeover of the entities indicated in paragraph 1 by negotiations with the USSR.” 39. Regulation No. 73 of the Government of the Republic of Lithuania of 16 March 1990 “On the banks of the Republic of Lithuania” provides, in relevant parts: “Implementing the Regulation No. I-18 of the Supreme Council of the Republic of Lithuania of 13 March 1990 ... the Council of Ministers of the Republic of Lithuania hereby decides: 1. To restructure the following Lithuanian republican banks (Lietuvos respublikiniai bankai) together with their institutions and organisations, leaving the latter subordinate to the restructured banks: ... e) the Bank of Foreign Economic Affairs of the USSR – into the Lithuanian Bank of Foreign Economic Affairs; ... 4. In order to take over the assets, liabilities ... other material resources ... of the banks listed in paragraph 1 from the USSR, to create the following commission ... The commission must promptly begin negotiations with the boards of the Soviet banks concerning the takeover of the assets, liabilities, funds and reserves indicated in this paragraph. ...” 40. Regulation No. 223 of the Government of Lithuania of 2 April 1992 “On the protection of currency deposits” (amended on 30 April 1992) provides, in relevant parts: “Having regard to the fact that, at the order of the Bank of Foreign Economic Affairs of the former USSR, the Lithuanian branch of that bank (the Lithuanian Bank of Foreign Economic Affairs) is being liquidated, the Government of Lithuania hereby decides: 1. By 1 May 1992, the Lithuanian Bank of Foreign Economic Affairs shall transfer to the Bank of Lithuania the remaining part of the currency deposits of natural persons (fizinių asmenų indėlių likučiai) and open bank accounts for them. 2. The currency deposits of natural persons transferred from the Lithuanian Bank of Foreign Economic Affairs to the Bank of Lithuania shall be guaranteed by currency funds (the budget funds) of the Republic of Lithuania. ... 3. The Bank of Lithuania shall immediately begin negotiations with the Bank of Foreign Economic Affairs of the former USSR – the successor – concerning the return of the expropriated funds (nusavintos valiutinės lėšos) of Lithuanian natural persons and legal entities which had been deposited with the Lithuanian branch of the latter bank (in the Lithuanian Bank of Foreign Economic Affairs).” 41. On 19 June 2007 the Parliamentary Ombudsperson issued Conclusion No. 4D-2007/1-648 concerning a complaint by N.J.G. that she had not been able to recover her funds which had been deposited with a Soviet bank. It stated: “... The restructuring of the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR was not conducted in accordance with the procedure provided in [domestic] legislation. During its liquidation, the Lithuanian Bank of Foreign Economic Affairs did not transfer any deposits to the Bank of Lithuania, and for that reason the Bank of Lithuania was unable to take any related actions. The Bank of Lithuania refused to become the successor of the debts and obligations of [the Lithuanian Bank of Foreign Economic Affairs]. ... The Parliamentary Ombudsperson was informed [by the Ministry of Finance] that the question of returning funds which had been deposited with the [Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR] was being constantly raised in meetings between Lithuanian and Russian officials. ... During the meeting of the Intergovernmental Commission of the Republic of Lithuania and the Russian Federation which took place on 10-12 November 2005, the Lithuanian delegation proposed that the draft procedure, agreed upon in 1999, would be implemented from 1 January 2006, but the Russian delegation was of the view that the question of returning the funds deposited with [the Soviet bank] to natural persons could be resolved only after the Lithuanian and Russian governments settled the issue of external debts and assets of the former USSR. The Parliamentary Ombudsperson was told that the Lithuanian delegation considered that the debt of [the bank] was a credit institution’s debt to its creditors, and therefore debts of natural persons should not be linked to the question of the external debt and assets of the former USSR. ... The applicant’s complaints ... that the officials of the Ministry of Finance failed to adequately address the questions concerning the return of currency deposits have proved to be unfounded – the officials dealt with the applicant’s problems within the limits of their authority and in accordance with applicable legislation.” 42. On 5 March 1993 the Government of Lithuania adopted Regulation No. 140 “On partial compensation for the losses to the citizens and permanent legitimate residents of the Republic of Lithuania who had deposited their foreign currency deposits with the liquidated Lithuanian branch of the Bank of Foreign Economic Affairs of the USSR”, which established that each depositor was entitled to partial compensation of up to USD 400, but not exceeding 90% of the total amount of the deposit, from the State’s budget. On 16 March 1994 the Government adopted Regulation No. 176 which provided for additional compensation of up to USD 500 for each depositor, and on 2 February 1996 it adopted Regulation No. 174 which provided for further compensation of up to LTL 2,000 for each depositor. 43. On 5 June 1997 the Lithuanian Parliament enacted the Law on the Restoration of Residents’ Deposits, which set out the order of priority and conditions for refunding deposits which had been kept in “State banks of Lithuania” (indėliai, sukaupti Lietuvos valstybiniuose bankuose). On 30 March 1999 that Law was amended to also provide for compensation for deposits which had been deposited with the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR. According to its Article 3 § 5, the maximum refundable amount was set at LTL 6,000, after deducting the compensation already paid in accordance with other legal instruments (see paragraph 42 above). 44. On 25 November 2010 the Lithuanian Parliament enacted the Law on Repealing the Law on the Restoration of Residents’ Deposits and its Amendments (see paragraph 43 above), Article 2 § 6 of which provides that funds which had been deposited with the Lithuanian branch of the Bank of Foreign Economic Affairs of the former USSR would be returned to the depositors once they had been recovered from the Russian Federation. 45. Article 36 § 3 of the CCP and Article 22 § 3 of the Law on Administrative Proceedings provide that when it is not clear whether a case should be examined by an administrative court or by a court of general jurisdiction, the question of jurisdiction is to be decided in written proceedings by a special panel of judges composed of the chairperson of the Civil Section of the Supreme Court, the deputy chairperson of the Supreme Administrative Court, and two other judges appointed by them. 46. Article 36 § 1 (10) of the Law on Administrative Proceedings provides that claims concerning damage caused by unlawful actions on the part of public administration entities are not subject to any court fees. 47. At the material time, Article 80 § 1 (1) of the CCP provided that court fees for monetary claims exceeding LTL 300,000 amounted to LTL 7,000, plus 1% of that part of the respective claim in excess of LTL 300,000. Article 80 § 4 provided that court fees for the submission of an appeal, including an appeal on points of law, were calculated in the same way as those for the initial claim. 48. Article 83 § 3 of the CCP provides that a person may be partly exempt from paying court fees because of his or her financial situation, and Article 84 provides that the payment of court fees may be deferred for the same reason. A person wishing to obtain such an exemption or deferment must submit a properly reasoned request to the court examining the case. 49. Article 20 § 4 of the Law on State-Guaranteed Legal Aid provides that the granting of legal aid does not preclude its recipient from requesting other exemptions provided for in laws governing civil and administrative proceedings.
| 0 |
test
|
001-174961
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF YUDINA AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
|
Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-144798
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,014 |
BROGAN v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
|
1. The applicants, Mr Alistair Brogan and Ms Lesley Brogan, are British nationals, who were born in 1964 and live in Doncaster. They are represented before the Court by Ms Matwala Vyas of Matwala Vyas LLP, a firm of solicitors based in Essex. 2. The United Kingdom Government (“the Government”) are represented by their Agent, Mr M. Kuzmicki of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 16 August 2003 the first applicant purchased Dove Cottage (“the property”), apparently with the assistance of a mortgage in favour of GMAC-RFC. The property subsequently became the applicants’ main residence. Although the second applicant claims that she used some of her funds to purchase the property, it was registered in the first applicant’s sole name. 5. On 30 August 2006 the first applicant entered into a second mortgage with Kensington Mortgage Company Limited (“KMCL”). The total amount loaned was GBP 26,875.00. 6. The first applicant fell into mortgage arrears in or around mid-2008 and KMCL commenced possession proceedings against him in the County Court. 7. Around this time, the first applicant’s solicitor became concerned that he lacked the capacity to manage his own affairs. Medical reports indicated that he had Asperger’s Syndrome and a schizophrenic illness. On 20 August 2008, a few days after the claim form was issued in the County Court by KMCL, the solicitor applied to the Court of Protection for an order authorising her to act as an Interim Deputy for Property and Affairs (“Interim Deputy”) to defend, inter alia, the possession proceedings on his behalf. The Court of Protection made an order on 24 September 2008 authorising her to take control of his property and affairs and to exercise the same power over them as a beneficial owner. In doing so, the court imposed a security bond requirement on the Interim Deputy in the sum of GBP 50,000 in favour of the first applicant. 8. The Interim Deputy thereafter informed KMCL that there was money available to pay the arrears and make advance payments. 9. The possession claim was heard on 6 October 2008. The first applicant did not attend and was not represented, although a letter from him was submitted to the court. The contents of that letter are not known. KMCL indicated to the court that the first applicant had made no payments on the mortgage since 11 April 2008. Consequently, the District Judge ordered that he give KMCL possession of the property before 3 November 2008. 10. The Office of the Public Guardian commissioned a Court of Protection Visitor to meet with the applicants and the Interim Deputy on 19 March 2009. The visitor was (incorrectly) told by the Interim Deputy that all payments on the mortgage were up to date. He also noted that the applicants’ situation was “very difficult and unstable” and seemed to be “on the edge of crisis” as the second applicant was unwell and might not be able to continue to care for the first applicant. 11. In mid-2009 the second applicant complained to the Office of the Public Guardian about the conduct of the Interim Deputy. In particular, she claimed that the Interim Deputy had failed to use funds of GBP 25,000 to discharge the mortgage arrears and that she had been on sick leave for five weeks and was not dealing with her deputyship duties. KMCL also complained about the Interim Deputy’s conduct, both to the Office of the Public Guardian and to the Law Society. They claimed that they had discontinued possession proceedings after the Interim Deputy had verbally agreed a settlement with them but that she had subsequently reneged on that agreement by insisting, without foundation, that KMCL pay her costs. Following the complaints, the Office of the Public Guardian launched an investigation into the activities of the Interim Deputy. 12. The second applicant subsequently withdrew her complaints against the Interim Deputy unreservedly. In a report dated 18 July 2009 the Office of the Public Guardian found that there had been a dispute between KMCL and the Interim Deputy which should be resolved between the parties. It also found that there had been a dispute between the Interim Deputy and her firm which resulted in her leaving the firm and working from home. Following a period of claimed ill-health, she had resumed activity in the affairs of the first applicant. The Office of the Public Guardian therefore closed its investigation. 13. On 16 December 2009 KMCL obtained a warrant for possession from the County Court. On the same date, a Notice of Eviction was sent to the first applicant “and any other occupiers” at Dove Cottage, stating that the eviction would take place on 14 January 2010. 14. By 6 January 2010 an application had been made on the first applicant’s behalf to suspend the eviction. A further application appears to have been made to “withdraw” the warrant of possession. 15. Both applications came before a district judge on 8 January 2010, on which date the first applicant appears to have been represented by the Interim Deputy. The applications were adjourned. 16. On 25 January 2010 the Court of Protection ordered a report into the management and administration of the property and affairs of the first applicant by the Interim Deputy. The report was prepared by the Office of the Public Guardian and published on 21 April 2010. The report noted that on her appointment, the Interim Deputy had advised KMCL that there was sufficient money in the Brogan’s client account to pay their arrears. However, KMCL informed the Office of the Public Guardian that the Interim Deputy had “made no attempt to pay the outstanding arrears or to ensure that mortgage payments are going forward”. In fact, she had entered into a verbal agreement to pay the arrears but then reneged on the agreement leaving KMCL no alternative but to seek possession. The report concluded that the Interim Deputy was struggling with her general, day-to-day duties and that there was a worrying – and unexplained – disparity as to the disbursement of approximately GBP 27,000 received into her employer’s client account in September 2008. Although the Court of Protection Visitor’s Report stated that all payments were up to date and that the GBP 25,000 received in September 2008 had been used in paying the arrears of the mortgage, in mid-2009 those funds were still in the client account. The report concluded that the first applicant’s best interests had not been served by the Interim Deputy. 17. On 21 May 2010 the adjourned applications to suspend and withdraw the warrant for possession were heard by a district judge. Both parties were represented by counsel at the hearing. However, the applications were dismissed and the possession warrant was returned to the bailiff for a new eviction date to be set. 18. On the same day the Interim Deputy’s authority to act in the possession proceedings came to an end. 19. Nevertheless, it appears that the Interim Deputy filed an application for permission to appeal against the district judge’s decision of 21 May 2010 on behalf of the first applicant without any authority to do so. The application was dismissed on 28 May 2010 at a hearing at which both parties were represented. 20. On 1 June 2010 the applicants were evicted from the property. 21. On 4 June 2010 the Interim Deputy made a further application to set aside the first applicant’s credit agreement with KMCL on the ground, inter alia, that he had not had the mental capacity to enter into it in 2006. This application was not made with the authority of the Court of Protection. On the same date the second applicant applied to join the application on the ground that she had also been in occupation of the property, she had an interest in the property and she was left homeless after KMCL were granted possession. She wrote to the court, setting out details of the first applicant’s mental health problems and outlining her own health concerns (including severe spondylosis, sciatica, heart disease, angina and depression). 22. On 8 July 2010, the Court of Protection revoked the appointment of the Interim Deputy with immediate effect. However, she was appointed as the first applicant’s Deputy limited to the single issue of making an application on his behalf for public funding to apply for judicial review of the decision of 28 May 2010. This appointment was to expire on 28 October 2010 unless extended by the Court. 23. On 14 July 2010, following a hearing at which the parties were represented by counsel, the District Court Judge dismissed the application to set aside the credit agreement and join the second applicant to the proceedings. The second applicant was ordered to pay KMCL’s costs of the application, which were assessed in the sum of GBP 5,765.06. Permission to appeal was refused. 24. On 3 August 2010, the applicants, through the Interim Deputy (again acting without authority), sought to appeal against the order of the District Court Judge. In particular, they submitted that there had been no consideration of their rights under Article 8 of the Convention. 25. On 30 November 2010 the Court of Protection gave the applicants’ daughter, Kate, authority to act as the first applicant’s litigation friend at the appeal hearing. 26. The appeal was heard on 3 December 2010. The judge found that the first applicant was not validly a party to the purported appeal as the Interim Deputy had not had authority to issue it. The second applicant and her representative were not able to attend the hearing owing to difficult weather conditions. Her appeal was dismissed as totally without merit and she was ordered to pay costs of GBP 4,863. The Interim Deputy was joined to the proceedings and was ordered personally to pay to KMCL costs in excess of GBP 10,000. 27. According to the applicants, following the eviction the first applicant spent ten days without his maintenance medication, which caused a temporary deterioration in his condition. The applicants initially lived with their youngest daughter in a van before all three moved to a tent in another daughter’s garden. They stated that during this period the first applicant attempted suicide on two separate occasions. The family later stayed in a hotel for 10 days before moving into a rental property from October 2010 onwards. 28. The medical evidence submitted to the Court indicates that the first applicant has a history of mental illness and had made a number of suicide attempts prior to the eviction proceedings which are the subject of his complaint to the Court. While there is some evidence to support the assertion that he also attempted suicide following the eviction, this attempt appears to have taken place while he was in custody and psychiatrists were establishing his fitness to plead in respect of a prosecution for conspiracy to defraud. 29. Section 16 permits the Court of Protection to appoint a Deputy to act on behalf of a person who lacks capacity in relation to matters concerning either his personal welfare or his property and affairs. However, the powers conferred on the Deputy should be as limited in scope and duration as is reasonably practicable in the circumstances and the court may revoke the appointment of a Deputy or vary the powers conferred on him if it is satisfied that he has behaved, is behaving, or is proposing to behave in a way that contravenes the authority conferred on him by the court or is not in the protected party’s best interests. 30. Pursuant to section 18, the Deputy’s powers extend, inter alia, to the discharge of the protected person’s debts and obligations, whether legally enforceable or not. 31. Section 19(6) provides that the Deputy is to be treated as the protected person’s agent in relation to anything done or decided by him within the scope of his appointment. 32. The Office of the Public Guardian is an executive agency of the Ministry of Justice which implements the Mental Capacity Act 2005 by administering powers of attorney, supervising Deputies who manage the affairs of others and investigating and acting on allegations of abuse by attorneys and Deputies. 33. Pursuant to Regulation 33(1) of The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (“the 2007 Regulations”) the court may order a person to give to the Public Guardian security in the form of a bond for the discharge of his functions. 34. Pursuant to Regulation 36 of the 2007 Regulations, the court may order the enforcement of the security. 35. Possession claims are governed by Part 55 of the Civil Procedure Rules and Practice Direction 55A. With regard to land subject to a mortgage, the Practice Direction provides that at the hearing the claimant’s evidence should include the amount of any rent or mortgage arrears and interest on those arrears. These amounts should, if possible, be up to date to the date of the hearing (if necessary by specifying a daily rate of arrears and interest). 36. If relevant, the defendant should give evidence of the amount of any outstanding social security or housing benefit payments relevant to rent or mortgage arrears and the status of any claims for social security or housing benefit about which a decision has not yet been made or any applications to appeal or review a social security or housing benefit decision where that appeal or review has not yet concluded. 37. Section 36 of the Administration of Justice Act 1970 provides that: “(1) Where the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action in which he claims possession of the mortgaged property, not being an action for foreclosure in which a claim for possession of the mortgaged property is also made, the court may exercise any of the powers conferred on it by subsection (2) below if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage. (2)The court— (a) may adjourn the proceedings, or (b) on giving judgment, or making an order, for delivery of possession of the mortgaged property, or at any time before the execution of such judgment or order, may— (i) stay or suspend execution of the judgment or order, or (ii) postpone the date for delivery of possession, for such period or periods as the court thinks reasonable. (3)Any such adjournment, stay, suspension or postponement as is referred to in subsection (2) above may be made subject to such conditions with regard to payment by the mortgagor of any sum secured by the mortgage or the remedying of any default as the court thinks fit.” 38. Pursuant to section 55(2) – (3) of the Family Law Act 1996, which applies if a mortgagee of a dwelling house brings an action in any court for the enforcement of its security, ʺ(2) A connected person who is not already a party to the action is entitled to be made a party in the circumstances mention in subsection (3). (3) The circumstances are that— (a) the connected person is enabled by section 30(3) ... to meet the mortgagor’s liabilities under the mortgage; (b) he has applied to the court before the action is finally disposed of in that court; and (c) the court sees no special reason against his being made a party to the action and is satisfied— (i) that he may be expected to make such payments or do such other things in or towards satisfaction of the mortgagor’s liabilities or obligations as might affect the outcome of the proceedings; or (ii) that the expectation of it should be considered under section 36 of the Administration of Justice Act 1970.ʺ
| 0 |
test
|
001-141179
|
ENG
|
ROU
|
CHAMBER
| 2,014 |
CASE OF GHEORGHE PREDESCU v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Substantive aspect)
|
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The applicant was born in 1955 and is currently serving a prison sentence. Since his sentence began, he has been imprisoned in a number of prisons in Romania. 6. On 22 January 2007 the applicant was placed in pre-trial detention on suspicion of murder. 7. On 10 July 2007 the applicant was convicted of murder and sentenced to seventeen years and six months’ imprisonment. 8. According to the information provided by the National Prisons Administration (Administraţia Naţională a Penitenciarelor, the “ANP”), from his arrest to January 2012 the applicant was mainly held in Târgu Jiu, Craiova, Giurgiu, Gherla and Arad Prisons. Every two or three months he spent about a week in a prison hospital, in one of Jilava, Colibaşi or Dej Prisons. During the reporting period, the applicant was transferred forty-seven times between these eight facilities; fifteen of these transfers were to the psychiatric wards of prison hospitals. 9. The applicant alleged that in all of the prisons in which he had been held other inmates had tried to poison his food and to beat him to death, and had been encouraged to do so or even helped by the prison authorities. 10. On 14 March 2007, while in detention, the applicant was diagnosed with delusional disorder, a type of psychosis. Psychiatric treatment in Jilava Prison Hospital was recommended. 11. According to the official prison records, each time the applicant was admitted to a prison hospital the diagnosis was confirmed. From 2007 to March 2010, each time he was discharged from prison hospital he was prescribed medication for his psychiatric disorder. It is mentioned in the official prison records that he refused to accept the diagnosis and to take his medication. For this reason, he was on each occasion discharged from hospital and transferred back to prison. 12. From March to July 2010 the applicant spent two periods of two weeks and one period of one week in Jilava Prison Hospital. He was discharged from hospital each time, it being considered that no medication was needed for his psychiatric condition. Following a further period of admission to Colibaşi Prison Hospital in September 2010, he was given medication again. 13. On several occasions the applicant reported to the authorities that the other inmates were trying to poison him. According to him, instead of receiving an answer to his complaints, he was transferred each time to a psychiatric hospital. He also asked to be placed in a cell alone, in order to prevent other attempts at poisoning him. 14. According to the information provided by the ANP, the quality of food was tested daily, and water quality was tested periodically. The results were satisfactory. The applicant was never admitted to the infirmary with symptoms of poisoning. 15. In 2009, in Craiova Prison, he was transferred, at his request, to the maximum security wing of that prison, where he shared a room with two others. While he was there, the applicant nevertheless chose to sleep in a small bathtub (measuring 80 cm by 80 cm) in the unheated bathroom from November 2009 to February 2010, as he feared that his cellmates were trying to poison him while he was asleep. 16. The applicant lodged criminal complaints against the prison guards, the doctor and the governor of Craiova Prison, whom he accused of improper behaviour. On 10 March 2010, 31 March 2010 and 8 July 2011 the Prosecutor’s Office decided not to bring a criminal prosecution. It noted that there was no evidence that prison officers had encouraged the inmates to poison or beat the applicant. The prosecutor also noted that the applicant had never sought medical help in prison for any poison-related symptoms and that he had never been in conflict with the other inmates or with the wardens. The prosecutor took account of the fact that the applicant had been diagnosed with mixed delusional disorder and that he had been compulsorily admitted to hospital several times, but discharged only a few days later, because he had refused to acknowledge the illness or to receive treatment. 17. Upon receiving the prosecutor’s decision of 10 March 2010, the applicant asked to be examined by the National Institute for Forensic Medicine (“the Forensic Institute”) to prove that he was not mentally ill. 18. In Gherla Prison, the applicant chose to sleep on the toilet seat to avoid the alleged poisoning and used to wake up in the middle of the night to rinse his mouth, being certain that he had been poisoned in his sleep. According to the official prison records, the most difficult stage of his detention in Gherla Prison was in April 2010, when he repeatedly complained that the administration was promising benefits for inmates if they poisoned his food and water. 19. In February 2010 the applicant went on hunger strike to force the prison administration to place him alone in a cell. The judge delegated by the court of appeal to supervise the observance of prisoners’ rights for the purpose of Law no. 275/2006 on the execution of sentences (“the postsentencing judge”) visited him and explained that his request could only be met if there were places available in individual cells, which was not the case at that time. In a decision of 24 February 2010 the post-sentencing judge determined that it was appropriate for the applicant to be kept in common dormitories but asked that he be seen daily by a doctor during his hunger strike, to ensure that his life was not endangered. 20. In 2011, a similar request to be placed alone was denied by the Craiova Prison administration, as there were no individual cells available. 21. The applicant asked to be transferred to Rahova Prison Hospital, in a single room under medical supervision, from September to November 2009. His request was refused, as it was considered that the conditions of detention in Craiova Prison were appropriate. 22. On 8 September 2009, 9 November 2009 and 15 June 2011 the Craiova Prison administration responded to inquiries by the ANP concerning the applicant’s allegations of poisoning, explaining the applicant’s mental health problems. In the letter of 15 June 2011 they also informed the ANP that the applicant was not “a person in need” who required the help of another person, as he could take care of himself, notably wash and feed himself. At the end of its investigation, the ANP informed the applicant that his allegations remained unfounded. 23. The applicant lodged similar complaints with the post-sentencing judge. On 9 November 2010 such a complaint concerning the situation in Giurgiu Prison was dismissed as unfounded. On 12 February 2009 the postsentencing judge dismissed a similar complaint concerning Craiova Prison as unfounded. 24. On 30 August 2008, while in Târgu Jiu Prison, the applicant was involved in a violent incident. 25. According to the applicant, he was beaten up by three inmates and stabbed in the lungs, kidneys, spleen and other organs by H.G. He was only taken to the doctor seven days after the incident and never received a copy of the medical certificate. Despite the applicant’s complaints H.G. was never punished for the attack. 26. According to the official prison records, the applicant was found injured by a guard and immediately taken to the prison infirmary, where he refused to be bandaged. As a consequence, he was immediately taken to a civilian hospital. Later on, he was also examined by a forensic doctor, who confirmed the existence of lesions and established that the applicant needed nine to ten days of medical care but that his life had not been endangered. 27. During disciplinary proceedings opened in the prison, the applicant refused to give statements or to get acquainted with the official reports. On 10 September 2008 the disciplinary commission punished H.G. with three days’ isolation. On 21 November 2008 the same disciplinary commission exonerated the applicant of any responsibility for the incident; a copy of this decision was forwarded on the same day to the applicant. 28. No criminal complaint was filed with respect to that incident.
| 1 |
test
|
001-156084
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF NAZARENKO v. RUSSIA
| 1 |
Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
|
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
|
5. The applicant was born in 1965 and lives in Ulan-Ude. 6. In 2007 the applicant’s wife, N., gave birth to a daughter, A. 7. In 2010 the applicant and N. divorced. 8. On 18 January 2011 the Oktyabrskiy District childcare and guardianship authority (hereafter “the childcare authority”) determined that A. would reside with the applicant during even weeks and with her mother, N., during odd weeks. In January, June, July and August A. was to live with the applicant for one week of his choice per month. 9. On 22 March 2011 the applicant discovered several bruises on A.’s body. Suspecting that she had been beaten and sexually abused by N.’s new partner, he refused to return A. to N. 10. During the following year A. lived with the applicant and her paternal grandmother. On several occasions the applicant allowed N. to visit A. in his presence. 11. On 25 March 2011 the applicant complained to the police and to the Oktyabrskiy District investigation committee that his daughter A. had been beaten and sexually abused by N.’s partner. The investigation committee opened a pre-investigation inquiry. 12. The applicant and N. both applied to the Oktyabrskiy District Court of Ulan-Ude for a residence order in respect of A. 13. On 25 April 2011 A. was questioned by an investigator in the presence of a psychologist, in the framework of the pre-investigation inquiry. A. stated that she wanted to live with the applicant because he was nice, whereas her mother and her mother’s new partner had treated her badly. She was again questioned by the investigator in the presence of a psychologist on 27 June and 3 August 2011, and confirmed her previous statements. 14. On 19 May 2011 the Oktyabrskiy District Court granted N.’s application for a residence order and refused the applicant’s similar application. The court found that both parents had taken an equal share in A.’s upbringing. They both had sufficient financial means and their standard of living was equally satisfactory. However, taking into account A.’s gender and age, it was preferable for her to be brought up by her mother. A child under the age of twelve could be separated from the mother only in exceptional circumstances. No such circumstances had been established in the present case. N. was employed and had sufficient income. There was no evidence of negligence or mistreatment on her part. A.’s bruises could have been sustained as a result of a fall or in the course of a game, and were insufficient to prove mistreatment. A criminal inquiry into the allegations of mistreatment was still pending. The court-appointed expert psychologist’s finding that A. was emotionally closer to her father and paternal grandmother than to her mother could not be taken into account in the absence of established evidence of mistreatment by the mother. The court concluded that it was therefore in A.’s best interests to live with her mother. 15. On 20 May 2011 the childcare authority noted that A. wished to live with her father. An inspection of the applicant’s flat had revealed that he had created all the appropriate conditions for A.’s normal development. The childcare authority therefore found that A. should reside with the applicant. 16. On 22 June 2011 the Supreme Court of the Buryatiya Republic upheld the judgment of 19 May 2011 on appeal. It found that the District Court had failed to consider the childcare authority’s findings and opinion and had therefore committed a serious breach of the procedure prescribed by law. However, given that the childcare authority’s opinion was advisory rather than binding on the court, the failure to consider that opinion did not warrant reconsideration of the judgment, which was correct in substance. 17. On 30 June 2011 the Oktyabrskiy District investigation committee opened criminal proceedings into the alleged mistreatment and sexual abuse of A. 18. As the applicant continued to retain A., N. applied to the Oktyabrskiy District Court for an injunction requiring the applicant to return A. to her. 19. On 29 November 2011 the Oktyabrskiy District Court allowed N.’s application. It found that the applicant had refused to comply with the judgment of 19 May 2011, upheld on appeal. It ordered that, in compliance with that judgment, the applicant should return A. to N. On 30 January 2012 the Supreme Court of the Buryatiya Republic upheld that judgment on appeal. 20. On an unspecified date the applicant applied for a second time to the Oktyabrskiy District Court for a residence order in respect of A. At the same time he applied for a restriction of N.’s parental authority over A. 21. On 23 January 2012 the Oktyabrskiy District Court dismissed the application and confirmed its previous order to the effect that A. should live with her mother, citing the same reasons as in the judgment of 19 May 2011. The court found no reasons to restrict N.’s parental authority over A. On 2 April 2012 the Supreme Court of the Buryatiya Republic upheld that judgment on appeal. 22. On 13 March 2012 N. kidnapped A. from the applicant. She has since prevented the applicant from seeing his daughter. 23. On 20 March 2012 A. was again questioned by the investigator in the presence of a psychologist. She said that she liked living with her mother and that her mother was treating her well. 24. On 23 April 2012 A. was examined by a panel of psychologists appointed by the investigator in the framework of the criminal proceedings. They found that A. was not suffering from any learning difficulties or disorders. However, owing to her age, level of development and susceptibility to external influence, she was unable to give reliable evidence about her relationships with her mother, her father or her mother’s new partner. 25. On 30 April 2013 the Oktyabrskiy District investigation committee discontinued the criminal proceedings, finding that there was no evidence of mistreatment or sexual abuse and that the bruises could have been caused by a fall. According to the experts, A.’s statements that her mother’s partner had treated her badly were unreliable. The witnesses had been unable to provide any information confirming the applicant’s allegations of child abuse. 26. The applicant applied for a third time to the Oktyabrskiy District Court for a residence order in respect of A. He also asked that N. be deprived of parental authority over A. 27. While those proceedings were pending, N. lodged an application with the Oktyabrskiy District Court, contesting the applicant’s paternity of A. She requested that his name be deleted from A.’s birth certificate and that A.’s family name and patronymic be changed. 28. On 23 July 2012 a DNA paternity test established that the applicant was not A.’s biological father. 29. On 18 September 2012 the Oktyabrskiy District Court allowed N.’s claims. It found that the applicant was not A.’s biological father and terminated his parental status in respect of her. It ordered that the applicant’s name be deleted from A.’s birth certificate and that A.’s family name and patronymic be changed to a family name and a patronymic not connected with the applicant. On 19 November 2012 the Supreme Court of the Buryatiya Republic upheld that judgment on appeal. 30. On 16 January 2013 the Oktyabrskiy District Court discontinued the proceedings concerning the applicant’s application for a residence order and an order to deprive N. of parental authority over A. The court reasoned that as the applicant was not A.’s biological father, he had no standing under domestic law to lodge civil actions concerning parental authority over A. or A.’s residence arrangements. The applicant was absent from the hearing because he was ill. 31. On 27 February 2013 the Supreme Court of the Buryatiya Republic upheld that decision on appeal. According to the applicant, he had not been informed of the date of the hearing. Nor was he informed about the appeal decision until 12 March 2013. 32. On 31 May 2013 a judge of the Supreme Court of the Buryatiya Republic refused to refer a cassation appeal lodged by the applicant to the presidium of that court for examination, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings. It noted, in particular, that there was proof in the case file that a letter had been sent to the applicant on 7 February 2013 informing him of the date of the appeal hearing. Information about the hearing date had also been published on the court’s official website. The applicant had therefore been duly informed of the date of the appeal hearing.
| 1 |
test
|
001-158142
|
ENG
|
SVN
|
COMMITTEE
| 2,015 |
CASE OF BELJKAŠ v. SLOVENIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Aleš Pejchal;Helena Jäderblom
|
5. The applicant was born in 1977 and lives in Kranj. 6. He was detained in the remand section of Ljubljana prison from 26 May 2010 to 6 November 2012. 7. For one day he was held in cell no. 89 measuring 16.63 square metres (not including a separate 1.68 square metre sanitary facility) with four other inmates, with 3.33 square metres of personal space. 8. For seven hundred and eighty-three days he was held in cell no. 82 measuring 16.37 square metres (not including a separate 1.82 square metre sanitary facility). For three hundred and eighty-two days he was held therein with four other inmates with 3.27 square metres of personal space and for one hundred days he was held therein with five other inmates with 2.73 square metres of personal space. For three hundred and one days he shared the cell with two or three other inmates with more than 4 square metres of personal space. 9. For one hundred and eleven days he was held in cell no. 88 measuring 16.37 square metres (not including a separate 1.82 square metre sanitary facility). For thirty-six days he was held therein with four other inmates with 3.07 square metres of personal space and for fifty-eight days he was held therein with three other inmates with 3.84 square metres of personal space. For seventeen days he shared the cell with two other inmates with more than 4 square metres of personal space. 10. The cells for six detainees, where the applicant was held, were equipped with three bunk beds with a total of six sleeping places, one large and one small table, six chairs and a set of cupboards for each of the detainees. Detainees could freely open or close windows in cells. On 14 November 2011 the sixth bed was removed. 11. As regards the general characteristics of the cells in the remand section of Ljubljana prison, material conditions inside the cells and sanitary conditions, see the judgment in Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, §§ 10 to 23, 20 October 2011. 12. As to the out-of-cell time in the remand section, the Court found in the aforementioned judgment that detainees in the remand section were confined to their cells day and night, save for two hours of daily outdoor exercise, and an additional two hours per week in a recreation room (see Mandić and Jović, cited above, § 78). According to the information supplied by the Government in the present case, on 9 February 2011 the time spent outdoors was extended to two hours and a half per day and in November 2011 the outside yard was covered by a roof. From 2 July 2012 detainees could spend five hours per day out of their cells. 13. As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in July and August 2010 had been approximately 27.5oC, exceeding 30oC on eight days, in July and August 2011 approximately 27oC, exceeding 30oC on ten days and in July and August 2012 it had been approximately 28.6oC, exceeding 30oC on eleven days.
| 1 |
test
|
001-169651
|
ENG
|
UKR
|
COMMITTEE
| 2,016 |
CASE OF ZHURAVEL AND OTHERS v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
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.
| 1 |
test
|
001-169519
|
ENG
|
UKR
|
COMMITTEE
| 2,016 |
CASE OF CHERNAYA v. UKRAINE
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
|
Erik Møse;Mārtiņš Mits;Yonko Grozev
|
5. On 9 June 2004, the applicant, 69 at the time, was walking in the centre of Kharkiv and was hit in the face by a pellet fired from an air gun. 6. The applicant was admitted to hospital the same day and the pellet was removed from her face. It was subsequently seized as evidence by the police. The doctors noted in the applicant’s medical file that she had a gunshot wound on the infraorbital region of her face. 7. Later that day she lodged a criminal complaint with the police. The applicant alleged that the shot had been fired from a particular flat in a building in the centre of Kharkiv. 8. From 10 to 26 June 2004 the applicant underwent outpatient medical treatment for her injury. 9. On 2 July 2004, at the request of the police, she was examined by an expert, who concluded that the applicant’s injury was of a minor degree and might have been caused by a gunshot. On 31 October 2005 the applicant underwent an additional medical examination, which confirmed the previous conclusion. 10. By decisions of 22 March and 8 December 2005 and 9 August 2006, the police refused to open criminal proceedings, stating that it was not possible to identify the offenders and that the applicant’s allegations that the shot had been fired from a particular location were unfounded. They further found that there had been no serious breach of public order in the applicant’s case and noted that the applicant could have lodged a criminal complaint directly with a court in the framework of private prosecution proceedings. Despite her repeated requests, the applicant was not given access to the police investigation file related to the incident of 9 June 2004. 11. On appeal by the applicant, those decisions were annulled by different prosecutors and the courts generally on the grounds that the police enquiry had fallenpellet, and that the case contained elements of the crime defined by Article 296 of the Criminal Code (hooliganism). In particular, on 21 August 2007 the Dzerzhynskyy District Court of Kharkiv ruled that the case should be returned to the prosecutors for further investigation. 12. No further investigation was carried out after that date. 13. By a letter of 21 August 2009, the Deputy Prosecutor of the Dzerzhynskyy District of Kharkiv informed the applicant that the investigation case file had gone missing. There is no information as to any further developments in that regard. 14. On 7 November 2009 the applicant died. Her death was unrelated to the incident of 9 June 2004.
| 1 |
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