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test
|
001-164720
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,016 |
SAVAŞÇIN AND OTHERS v. TURKEY
| 4 |
Inadmissible
|
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
|
1. The applicants, Mr Mehmet Yılmaz Savaşçın, Ms Ayşe Şayan Ataklı, Ms Yılma Savaşçın and Ms Solmaz Gülper Refiğ, are four Turkish nationals. They were born in 1941, 1948, 1938 and 1943 respectively. They were represented before the Court by Ms Fatma Belgin Adalı, a lawyer practising in Izmir. 2. s, may be summarised as follows. 3. In 1976 the applicants purchased a plot of land measuring 7,860 sq. m in Foça, in the Yenifoça Salhan District of Izmir, which had been registered in the land register as parcel no. 2066. 4. On 30 November 1999, following a claim submitted by the forest administration, the Foça Civil Court of First Instance ordered that the applicants’ title deed be annulled and the land entered in the land register as belonging to the Treasury, holding that the land was part of the public forest. An appeal and a request for rectification lodged by the applicants were subsequently rejected by the Court of Cassation and the decision became final on 4 February 2002. 5. On 14 June 2002 the applicants brought a case before the Foça Civil Court of First Instance. They sought compensation for pecuniary damage from the Treasury under Article 917 of the old Civil Code, which prescribed that the State was responsible for any damage resulting from the keeping of the land registry records. 6. On 21 December 2004 the Foça Civil Court of First Instance dismissed the applicants’ compensation claim. The Court of Cassation rejected an appeal and a request for rectification lodged by the applicants, and the decision became final on 31 October 2006. 7. Under Article 169 of the Turkish Constitution of 1982, ownership of public forests may not be transferred to others; public forests will be managed and exploited by the State in accordance with the law. Ownership of such forests cannot be acquired through adverse possession, nor may forests be subject to any easement, unless it is considered to be in the public interest. 8. Under section 7 of Law no. 6831 of 31 August 1956, the cadastral commissions decide whether an area will be categorized as a public forest or a private forest. The same law governs the way in which the cadastral commissions operate (sections 7 to 12). 9. A full description of the relevant domestic law and practice regarding the designation of land as public forest may be found in Turgut and Others v. Turkey (no. 1411/03, §§ 41-67, 8 July 2008). 10. The object of Law no. 6384 was to provide for the settlement, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings, and non-enforcement or delayed enforcement of judicial decisions. A Compensation Commission was set up for that purposes. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013). 11. The competence ratione materiae of the Compensation Commission was subsequently extended by a decree which came into force on 16 March 2014. The decree extended the competence of the Compensation Commission to the examination of other complaints, such as alleged restriction of the right of detainees to correspondence in a language other than Turkish and the prison authorities’ refusal, on different grounds, to hand over periodicals. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014). 12. The Turkish Council of Ministers issued a decree which came into force on 9 March 2016. The decree extended anew the competence ratione materiae of the Compensation Commission. 13. The Compensation Commission is now entitled to examine the following subjects under Article 4 of the decree, which reads as follows: “a) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because his or her land was classified as part of the public forest area, or as a result of the application of section 2/B of Law no. 6831, or because the land was classified as part of the public forest area in cadastral surveys; b) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because the impugned land was classified as located within a coastal area; c) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the allocation of the impugned land for public use in local land development plans; d) Applications concerning an alleged breach of an applicant’s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities; e) Applications concerning an alleged breach of the right to respect for correspondence on account of the prison administration’s refusal to receive or send letters or similar correspondence drafted in Turkish.”
| 0 |
test
|
001-155361
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF ANATOLIY KUZMIN v. RUSSIA
| 4 |
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The applicant was born in 1971 and lives in Chelyabinsk. 6. On 17 January 2005 the applicant was detained on suspicion of having committed a robbery. 7. By decision of 11 March 2005 the court extended the applicant’s pre-trial detention until 22 March 2005. According to the applicant, his pretrial detention continued on 23 March 2005 since the investigator sent his criminal case to the court with a one day delay. 8. On 25 April 2005 the Tsentralniy District Court of Chelyabinsk convicted the applicant of robbery and sentenced him to nine years of imprisonment. The applicant appealed. 9. By decision of 22 July 2005 the Chelyabinsk Regional Court upheld the judgment with certain modifications. 10. The applicant subsequently lodged a request with a court to initiate supervisory review proceedings in his case. On an unspecified date the applicant’s request was granted. 11. On 22 November 2006 the Presidium of Chelyabinsk Regional Court amended the judgment and reduced the applicant’s sentence to eight years and six months of imprisonment. 12. During the trial the applicant was transported to the Tsentralniy District Court of Chelyabinsk to take part in the examination of his criminal case. 13. While waiting for hearings in the Tsentralniy District Court of Chelyabinsk the applicant was put in a convoy cell, a barred room measuring approximately 4 sq. metres with one bench. According to the applicant, he was usually kept in the convoy cell with six other accused. On 29 June 2005 as many as nine accused were kept in the convoy cell. The cell did not have a toilet and the detainees were taken to the toilet on the wardens’ orders. Though the accused leaving for a court were provided with a packed lunch, no hot meal or hot water was distributed. The accused were not allowed to smoke. 14. The applicant did not provide any detailed information as to how many times and how long he had been detained in the convoy cell. 15. He stated that the average time spent in the convoy cell by an accused was 4-5 hours a day. 16. On 30 June and 18 July 2005 the applicant complained to the court and the Head of the Court’s Convoy Service about the conditions of detention in the convoy cell. 17. By letter of 28 July 2005 the Tsentralniy District Court of Chelyabinsk replied to the applicant’s complaint. The relevant part of the letter reads as follows: “... on 29 June 2005 twenty accused were brought to the court’s convoy cells, the cells were filled up to the limit because according to the Order no. 41 ... the following categories of individuals should be detained separately: men and women, minors and adults, individuals with previous criminal record and first time accused, suspects and convicted, suspects and accused in one case. According to the Federal Law ... smoking is prohibited in all premises of the Tsentralniy District Court of Chelyabinsk, including the convoy cell.” 18. By letter of 9 August 2005 the Head of the Court’s Convoy Service replied to the applicant’s complaint. The relevant part of the letter reads as follows: “On 29 June 2005 the convoy staff was obliged to seat the accused brought to the court according to the rules in force, thus 9 individuals were put together in one of the convoy cells. According to the Federal Law ... smoking is prohibited in all premises of the Tsentralniy District Court of Chelyabinsk, including the convoy cell.” 19. On 25 July 2005 the applicant asked the prosecutor to institute criminal proceedings against the wardens of the courthouse. The prosecutor ignored the applicant’s motion and the applicant challenged his inaction in court. By decision of 18 October 2005 the Chelyabinsk Regional Court rejected the applicant’s complaint in the final instance. The relevant part of the decision reads as follows: “The court’s conclusion that there are no grounds to record the applicant’s complaint under Article 144 of the Code of Criminal Procedure (CCP) and to adopt a procedural decision under Article 145 of CCP correlates It follows from the applicant’s statement of appeal ... that he complained of the conditions of the detention in the convoy cell of the Tsentralniy District Court of Chelyabinsk, namely the smoking ban and the overcrowding of the cells. The complaint does not contain any information on committed crimes and does not require institution of criminal proceedings. These circumstances were established during the court hearing and confirmed by the record of the hearing. For the reasons mentioned above the court of first instance reasonably dismissed the applicant’s complaint.” 20. The Government submitted that the courthouse convoy premises measuring 50 sq. metres in total had four cells, 4 sq. metres each. They had adequate ventilation and lighting, the entrance was secured by metal grill doors. Each cell was equipped with one bench. The cells did not have sanitary facilities, but the convoy premises had two lavatories. The applicant had access to the toilet at any time upon request. The Government provided undated photographs and a plan of the convoy premises. 21. Relying on a certificate issued by the director of facility IZ-74/1 on 21 October 2009, the Government claimed that the applicant was brought to the Tsentralniy District Court of Chelyabinsk seven times: on 11 March, 7, 19, 22 and 25 April, 29 June and 31 August 2005. 22. The Government submitted that the documents confirming the number of detainees in the convoy cells and their time of arrival and departure were destroyed on 16 January 2009 due to expiry of the timelimit for their storage. 23. With reference to the applicable regulations, the Government submitted that on the dates of the applicant’s transfers to the District Court the applicant had received a dry ration (bread, tinned meat or fish, tea, salt, sugar and disposable tableware before 2 August 2005, and instant first and second course, sugar, tea, disposable tableware from 2 August 2005). The Government provided a copy of the invoice dated 15 June 2006 confirming the purchase of a water boiler by the District Court. 24. The Government acknowledged that on 29 June 2005 the convoy premises were crowded to the limit. According to the statement by the Deputy Head of the Convoy Service dated August 2005, there were twenty detainees in four cells in the convoy premises. The statement does not provide exact numbers for each cell.
| 0 |
test
|
001-163112
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF SHEPEL v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
4. The applicant was born in 1968 and, prior to his conviction, lived in Yaroslavl. 5. On 15 April 2008 the applicant was arrested on suspicion of fraud. Subsequently, he was charged with fraud, attempted fraud, embezzlement, tax evasion and a breach of duties in his work as a tax agent. 6. On 16 April 2008 the Kirovskiy District Court of Yaroslavl remanded the applicant in custody pending investigation. The judge found that (1) the applicant was suspected of serious crimes, (2) he might abscond, (3) he might put pressure on witnesses, or (4) he might interfere with the investigation. 7. On 25 April 2008 the Yaroslavl Regional Court upheld the detention order of 16 April 2008 on appeal. 8. The applicant remained in detention pending investigation and trial. The courts extended his detention, using the same stereotyped formula as described above. 9. On 16 March 2009 he was committed for trial before the Kirovskiy District Court of Yaroslavl. 10. On 27 October 2009 he was convicted of the charges and sentenced to seven years’ imprisonment. 11. On 29 December 2009 the Yaroslavl Regional Court quashed the judgment on appeal and remitted the case to the first-instance court for a fresh examination. 12. On 25 January 2010 the trial court ordered his release on bail. 13. On 27 January 2010 the bail was paid and the applicant was released. 14. On 20 July 2010 the applicant was convicted of fraud and attempted fraud and sentenced to five years and six months’ imprisonment. 15. On 19 October 2010 the Yaroslavl Regional Court upheld the judgment on appeal.
| 1 |
test
|
001-153518
|
ENG
|
ITA
|
CHAMBER
| 2,015 |
CASE OF GALLARDO SANCHEZ v. ITALY
| 1 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-f - Extradition)
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant, Mr Manuel Rogelio Gallardo Sanchez, is a Venezuelan national who was born in 1965 and lives in Cape Town (South Africa). 8. On 19 April 2005, the applicant, who had been accused of arson by the Greek authorities, was taken into custody pending extradition by the Rome police on the basis of an arrest warrant issued by the Athens Court of Appeal on 26 January 2005 under the European Convention on Extradition of 13 December 1957. 9. On 22 April 2005 the Court of Appeal of L’Aquila validated the applicant’s arrest and ordered his detention. 10. On 26 April 2005 the Ministry of Justice asked the Court of Appeal to extend his detention. 11. At the hearing of 27 April 2005, the President of the Court of Appeal, ruling under Article 717 of the Code of Criminal Procedure (see paragraph 25 below), established the applicant’s identity and asked if he gave his consent to his extradition. He did not consent. 12. On 9 June 2005 the Minister of Justice informed the Court of Appeal that, on 25 May 2005, the Greek authorities had sent a request for extradition together with all the requisite supporting documents. 13. On 21 June 2005 the public prosecutor’s office asked the Court of Appeal to grant the extradition request. 14. The hearing was scheduled for 15 December 2005. At the request of the applicant’s representative, it was postponed until 12 January 2006. 15. Without any prior investigation the Court of Appeal approved the extradition by a decision of 12 January 2006, deposited on 30 January 2006. It verified the conformity of the extradition request with the European Convention on Extradition and compliance with the ne bis in idem and double criminality principles, and it ruled out the possibility that the proceedings had been brought for any discriminatory or political reasons. 16. On 3 March 2006 the applicant appealed on points of law, arguing in particular that the request for his extradition had been sent by the Greek authorities after the forty-day time-limit provided for in Article 16 § 4 of the European Convention on Extradition, which meant in his view that his detention had been unlawful. He further argued that the charges laid against him by the Greek authorities were not based on serious indications of guilt. He submitted that he should therefore be released. 17. In a judgment of 11 May 2006, deposited in the registry on 18 September 2006, the Court of Cassation dismissed the appeal with only one page of reasoning, in particular because it found that the extradition request had been received within the time-limit provided for in the European Convention on Extradition and that it did not have jurisdiction to examine whether serious indications of guilt had been adduced. 18. In the meantime, on three occasions between June and September 2005, the applicant had applied to the Rome Court of Appeal, unsuccessfully, to obtain his release. In its last decision of 27 October 2005, adopted in private in compliance with the adversarial principle, and without any prior investigation, the Court of Appeal found that there was no reason to depart from the two previous rejection decisions, having regard to the on-going risk that the applicant might abscond, even though the authorities had taken away his passport, and to the State’s obligation to comply with its international commitments. 19. On 9 October 2006 the Minister of Justice signed the extradition order. 20. On 26 October 2006 the applicant was extradited to Greece.
| 1 |
test
|
001-140932
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,014 |
NICOLESCU v. ROMANIA
| 4 |
Inadmissible
|
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
|
1. The applicants, Mr Daniel Nicolescu and Ms Estera Nicolescu, are Romanian nationals, who were born in 1939 and 1946 respectively and live in Bacău. They were represented before the Court by Mr A. Surdescu, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their coAgent, Ms I. Cambrea and then by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. In a final decision of 4 May 2004 the Bacău County Court dismissed the criminal complaint lodged by the applicants against two journalists who had published several articles about them. At that time, they were respectively the director and a teacher in a local high school. 4. The decision became available on 18 May 2004. 5. On 10 August 2004 the applicants sent a letter to the Court stating that “the Romanian State breached some of [their] rights guaranteed by the Convention” and asking for an application form in order to “legally lodge their application with the Court” (ca modalitate legală de sesizare a Curţii). 6. On 29 October 2004 the Court forwarded the application form and instructed the applicants on how to read the admissibility requirements set out in Articles 34 and 35 of the Convention and Rules 45 and 47 of the Rules of Court. 7. On 10 February 2005 the applicants sent their application form and supportive documents, raising comprehensive complaints under Articles 6 § 1 and 8 of the Convention.
| 0 |
test
|
001-158042
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,015 |
ALI ASAN v. ROMANIA
| 4 |
Inadmissible
|
Branko Lubarda;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits
|
1. The applicant, Mr Aurel Ali Asan, is a Romanian national, who was born in 1973 and has been detained in Galați Prison since June 2010. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant has been detained since June 2010 and, following his conviction in 2011, has been serving a twenty-three years prison sentence. 5. On 28 November 2011 the applicant instituted proceedings before the Brăila County Court seeking the suspension of his prison sentence on medical grounds. 6. On an unspecified date the Brăila County Court asked the Mina Minovici Forensic Institute to produce an expert medical report in respect of the applicant’s illnesses and to clarify if he could be treated in a prison hospital. 7. On 17 June 2012 the Mina Minovici Forensic Institute produced the expert medical report ordered by the court. One of the conclusions of the report was that the applicant had bone tissue missing on the right side of his head since an operation to treat a head injury suffered in 2006. It noted that after the surgery he had been recommended to undergo an osteoplasty (surgical repair or alteration of the bone). It concluded by agreeing that an osteoplasty was recommended for the applicant’s condition. The surgery was not urgent but could be carried out only in a civilian hospital. The applicant could be transferred to a civilian hospital under permanent guard after an appointment had been made and he had consented in writing. Also, from a medical standpoint, it was not impossible for the applicant to serve out his sentence. 8. On 24 September 2012 the Brăila County Court dismissed the applicant’s action. It held that according to the conclusion of the expert medical report produced by the Mina Minovic Forensic Institute, it was not impossible for the applicant to serve out his sentence from a medical standpoint. The applicant appealed on points of law (recurs) against the judgment. 9. By a final judgment of 24 January 2013 the Galați Court of Appeal dismissed the applicant’s appeal on points of law as ill-founded. 10. On 30 January 2012 the applicant instituted proceedings before the Galați County Court seeking the suspension of his prison sentence on medical grounds. 11. On 19 March 2013 the Galați County Court dismissed the applicant’s action. It held that according to the expert medical report produced by the Mina Minovici Forensic Institute on 17 June 2012 the applicant’s illness did not make it impossible for him to serve out his sentence. The applicant appealed on points of law against the judgment. 12. By a final judgment of 26 April 2013 the Galați Court of Appeal dismissed the applicant’s appeal on points of law as ill-founded. 13. On 3 June 2013, relying on the Mina Minovici Forensic Institute’s expert report, the applicant lodged a request with the post-sentencing judge attached to Galați Prison seeking his assistance in gaining permission to undergo the surgery he needed. 14. On 4 June 2013 the post-sentencing judge attached to Galați Prison informed the applicant that his request had been forwarded to the prison’s medical office in order to be resolved. 15. On 7 June 2013, referring to the Galați Prison’s post-sentencing judge’s referral, the governor of Galați Prison informed the applicant that according to the neurosurgical evaluation report, produced in Rahova Prison Hospital for the expert medical report by the Mina Minovici Forensic Institute, the cranium cerebral trauma that had been operated on in 2006 did not need neurosurgical treatment. 16. On 29 July 2014 the post-sentencing judge attached to Galați Prison informed the Government that except for his request of 3 June 2013 the applicant had never complained before him between 2012 and 2014 under Laws nos. 275/2006 and 254/2013 that his right to medical assistance had been breached. 17. On 5 June 2012 the applicant was taken to the Bucharest University Emergency Hospital for a neurological evaluation. The evaluation report concluded that the applicant was not suffering from any serious neurological problems. However, it did recommend a neurosurgical evaluation. 18. On 22 and 29 June 2012 the applicant was taken to the Bucharest University Emergency Hospital for two neurosurgical evaluations. The evaluation reports concluded that the surgery was not urgent and that the applicant could have been operated on at any time. 19. On 12 December 2012 the applicant was taken for a CT scan which did not disclose any internal brain haemorrhage. 20. On 17 December 2012 the applicant was taken to the Carol Davila Central Military University Emergency Hospital for a neurosurgical evaluation. The evaluation report noted that the applicant’s condition was favourable and it recommended subsequent neurological evaluations with a view to an osteoplasty. 21. From 18 to 25 October 2013 the applicant was hospitalised in Rahova Prison Hospital for a neurosurgical evaluation and in order to determine the need for an osteoplasty. The evaluation report concluded that the applicant’s head injury was old and therefore was not an emergency warranting neurosurgery. 22. On 30 July 2014 the Medical Agency attached to the National Prison Service informed the Government and submitted supporting evidence attesting that from 20 September 2010 to 17 July 2014 the applicant had been repeatedly examined and treated for his medical conditions, including his head injury, in prison hospitals. Moreover, he was regularly given medical evaluations in respect of his condition. 23. On 25 June 2015 the National Prison Service informed the Government that on 19 June 2015 the applicant had been examined by a neurosurgeon at the Constanța County Hospital. The aforementioned neurosurgeon concluded that the applicant’s health was good and reiterated the chronic nature of the applicant’s condition and that it was not an emergency warranting neurosurgery. 24. The relevant provision of the former Romanian Code of Criminal Procedure concerning suspension of prison sentences (Articles 453 and 455), are described in Aharon Schwarz v. Romania, no. 28304/02, §§ 66-67, 12 January 2010. 25. Excerpts from the relevant legal provisions concerning the rights of detainees, namely Law no. 275/2006 on the execution of prison sentences, are given in the cases of Petrea v. Romania (no. 4792/03, §§ 21-23, 29 April 2008); Gagiu v. Romania (no. 63258/00, § 42, 24 February 2009); and Măciucă v. Romania (no. 25763/03, § 14, 26 May 2009). 26. The Execution of Prison Sentences Act (Article 56 of Law no. 254/2013), which entered into force on 1 February 2014, provides that a detainee can complain before the post-sentencing judge against the measures taken by the prison administration in respect of his lawful rights. The post-sentencing judge’s decision can also be challenged before the domestic courts.
| 0 |
test
|
001-165262
|
ENG
|
FRA
|
CHAMBER
| 2,016 |
CASE OF A.B. AND OTHERS v. FRANCE
| 3 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
6. The applicants were born in 1978, 1980 and 2007 respectively. 7. They fled Armenia on account of fears of persecution related to the first applicant’s activity as a journalist and his political activism. 8. After arriving in France on 4 October 2009 they filed applications for asylum, which were rejected by the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides – OFPRA), on 21 December 2009, then by the National Asylum Court (Cour nationale du droit d’asile – CNDA), on 28 February 2011. Their subsequent requests for re-examination were also rejected. 9. On 3 May 2011 the prefect of Loiret issued orders rejecting the applicants’ requests for leave to remain and obliging them to leave French territory. On 18 October 2011 the Orleans Administrative Court, on an appeal from the applicants, refused to overturn those orders. 10. The first applicant was arrested by the police in connection with a theft on the evening of 16 February 2012 and was taken into police custody that same day. The second and third applicants were arrested the next day at the reception centre for asylum seekers (Centre d’accueil des demandeurs d’asile – CADA) at Chaingy, where the family had been living. The applicants were taken that same day to the administrative detention centre (Centre de rétention administrative – CRA) of Toulouse-Cornebarrieu. The detention orders in respect of the first two applicants read as follows: “Whereas the immediate enforcement of the [order to leave France] is not possible on account of the organisation of [their] departure for [their] country of origin. Whereas [the applicants] [have] not presented sufficient guarantees that [they] will not abscond, not having a valid passport, [having] neither a fixed abode nor sufficient resources, not [having] complied with the previous removal directions issued to [them] and [having] formally opposed, when interviewed, [their] return to [their] country of origin.” 11. The first two applicants challenged their detention orders and in parallel lodged an urgent application for a stay of execution. They claimed that they had a fixed addressed at the reception centre (CADA), that a friend was prepared to accommodate them and that, in any event, their detention would be incompatible with the best interests of their child. In this connection they indicated that their child, who was too young to be left on his own, was obliged to accompany them in all their administrative formalities and therefore to come into contact with armed police officers in uniform. 12. On 21 February 2012 the President of the Toulouse Administrative Court dismissed the urgent application without a hearing, finding as follows: “Under the [domestic statutory] provisions, the legality of decisions ordering administrative detention in connection with removal measures can be challenged fully through a specific procedure, which itself has the nature of an urgent procedure, separately from the remit of the urgent applications judge ...; it follows therefrom that the applicants’ request for that judge to order ... the stay of execution of the detention orders made for the purpose of enforcing the removal directions, a stay which would in fact have an equivalent effect to that of the annulment of the same decision on the merits, is inadmissible.” 13. On the same day, the Toulouse Administrative Court dismissed the application lodged by the first two applicants for the annulment of the administrative detention order, on the following grounds: “It is not in dispute that [the applicants] cannot present any valid identity or travel document; although [they claim] that [they] have a fixed address in an asylum-seekers’ reception centre, it can be seen from the evidence in the file that this centre asked [them] to vacate the premises, where [they have] unduly remained since June 2011; nor [have] the [applicants] adduced evidence of lawful income; lastly, since the notification of the judgment of the Orléans Administrative Court of 18 October 2011 dismissing [their] application against the order of the prefect of Loiret of 2 May 2011, [the applicants] [have] avoided the said removal measure; under those circumstances, the choice of the administrative authority to place [them] in administrative detention instead of ordering a measure of restricted residence ... is not vitiated by a manifest error of judgment.” Responding more specifically to the argument raised by the applicants concerning the child’s best interests, the Administrative Court found it to be inapplicable, as the decisions appealed against pertained only to the parents’ personal situation. 14. The prefect asked the Liberties and Detention Judge of the Toulouse tribunal de grande instance to extend the detention, after which the first two applicants tried to obtain the third applicant’s voluntary intervention in the proceedings. On 22 February 2012 that judge authorised the extension of the applicants’ detention for a period of twenty days, after finding inadmissible the request for voluntary intervention on behalf of the child, and having dismissed the argument that the conditions of detention were incompatible with the presence of a minor child, on the following grounds: “It is not for the judicial authority to interfere in the running of an administrative detention centre”. 15. That decision was upheld on 24 February 2012 by the President of the Toulouse Court of Appeal, who found in particular as follows: “... the administrative detention centre of Cornebarrieu, where the child is held, has been authorised to receive families and contains all the necessary facilities to ensure the comfort of a family with children. Thus the whole family is together and they have, in an autonomous area and separated from the rest of the detainees, rooms for them alone and for their exclusive use. In addition, there is a playground on the site, like those to be found in town squares. Lastly, a doctor and a nurse are available every day in the Toulouse administrative detention centre and Mr and Mrs A.B. have not shown that they met with a refusal when they asked to present their child – a request of which the existence has not been established. The Convention provisions, especially Article 8, do not therefore appear to have been breached.” 16. On 24 February 2012 the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the detention orders concerning them. On 29 February 2012 the Court decided not to indicate the requested interim measure. 17. On 5 March 2012 the applicants were released, after expressing their wish to return to Armenia, and after seeking voluntary return assistance for that purpose. However, they did not leave France, on account of the third applicant’s state of health. On 13 July 2012 the first applicant was granted leave to remain as the parent of a sick child. 18. In two judgments of 15 November 2012, the Bordeaux Administrative Court of Appeal annulled the administrative detention orders of 17 February 2012 in respect of the first two applicants. Its judgments contained the same wording for each spouse: “4. Article L. 561-2 of the Entry and Residence of Aliens and Right of Asylum Code provides, by way of exception to the cases where a foreign national may be placed in detention, the possibility of ordering a measure of restricted residence (assignation à résidence) if the alien can present guarantees to allay the risk of non-compliance with his or her obligation to leave France. Under provision 3o of part II of Article L. 511-1 of the same Code, such risk must in particular be regarded as established, save in specific circumstances, in cases where the alien has already evaded the execution of a removal measure. The finding by the administrative authority of facts falling within provision 3o of part II of Article L. 511-1, while it is such as to create a presumption of a risk that the alien might fail to comply with his or her obligation to leave France, does not dispense that authority, before any decision to place him or her in detention, parents of minor children and who do not have sufficient guarantees of compliance, such aliens being provided for by Article L. 562-1 of the said Code, and in accordance with the aims of Article 17 of Directive 2008/115/EC, recourse to placement in detention can only constitute an exceptional measure in cases where the alien does not have a stable place of abode at the time when the prefectoral authority takes the necessary measures to prepare for the removal. 5. For the purposes of transposition of the above-mentioned Directive, Article L. 562-1 of the Entry and Residence of Aliens and Right of Asylum Code, as inserted by Law no. 2011672 of 16 June 2011, provides: ‘In the cases provided for in Article L. 5511, where the alien is the parent of a minor child residing in France and has effectively contributed to the raising and education of that child in the conditions prescribed in Article 371-2 of the Civil Code since the birth of the child or at least for the past two years, and where the conditions for a restricted residence measure under Article L. 561-2 of the present Code are not fulfilled, the administrative authority can decide on a measure of curfew with electronic tagging, with the agreement of the alien concerned. The measure of curfew with electronic tagging is decided by the administrative authority for a period of five days. The measure may be extended by the Liberties and Detention Judge under the same conditions as the extension of the administrative detention provided for in chapter II of title V of the present book.’ 6. It can be seen from the evidence in the file that on the date of the decision appealed against, Mr [A.B.], accompanied by his wife and four-year-old son [A.B.], had been accommodated for several years in the hostel of the asylum-seekers’ reception centre in Chaingy, and that the child had been going to school. Mrs [A.A.B.] was apprehended on 16 February 2012 in that hostel, where the family had remained unlawfully, even though they had been requested to leave the premises by the centre’s administration, following the rejection of their requests for a review of their asylum situation by a decision of 28 July 2011 of the French Office for the Protection of Refugees and Stateless persons. In deciding on their placement in detention the prefect of Loiret merely stated that Mr [A.B.] did not present sufficient guarantees against the risk of non-compliance, as he did not have a valid passport, had no stable place of abode or sufficient income, and had not complied with the previous directions for his removal. It does not appear from the decision appealed against that the prefect had considered, having regard to the presence of a child, whether a less coercive measure than detention was possible for the necessarily short duration of the removal procedure. In those conditions, his decision was vitiated by an error of law and had for that reason to be declared null and void. 7. It transpires from the foregoing that, without there being any need to examine the other arguments in the application, Mr [A.B.] is justified in submitting that the judge appointed by the President of the Toulouse Administrative Court, in the judgment appealed against, had been wrong to reject his request for the annulment of the decision of 17 February 2012 placing him in administrative detention.” ...
| 1 |
test
|
001-184500
|
ENG
|
TUR
|
COMMITTEE
| 2,018 |
CASE OF ARSLAN AND OTHERS v. TURKEY
| 4 |
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
|
Paul Lemmens;Stéphanie Mourou-Vikström
|
6. The applicants were born in 1983, 1973, 1983, 1986, 1984 and 1984. Mr Yaşar Çalışkan lives in Ankara. The other applicants live in Samsun. According to the applicants’ submissions, which were not contested by the Government, at the time of the lodging of the application, they were serving the prison sentences arising out of their criminal convictions which gave rise to the present application. 7. On 17 and 18 June 2005 seventeen members of the Maoist Communist Party (hereinafter “the MKP”), an illegal organisation, were killed in a rural area within the administrative jurisdiction of the town of Ovacık, near the city of Tunceli, by members of the security forces. 8. On 21 June 2005 a gathering was held in protest at the alleged unlawful killings of 17 and 18 June 2005 in Samsun. University students from the Samsun Ondokuz Mayıs Üniversitesi, including the applicants, gathered in front of the building of the Black Sea Fundamental Rights and Freedoms Association (Karadeniz Temel Haklar ve Özgürlükler Derneği) where a press statement was read out. 9. On 8 July 2005 one of the applicants, Mr Ahmet Doğan, attended another reading out of a press statement in Samsun. The press statement concerned the killings of 17 and 18 June 2005, the arrest of a number of persons subsequent to the reading out of the press statement on 21 June 2005 and the alleged unlawful killing of a detainee by the police. 10. On 21 February 2007 the Ankara public prosecutor initiated criminal proceedings against twenty-three people, including the applicants, charging them with disseminating propaganda in favour of the MKP, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, during the gathering of 21 June 2005, slogans such as “Long live revolutionary solidarity” (“Yaşasın devrimci dayanışma”), “We have paid a price. We will make them pay a price.” (“Bedel ödedik, bedel ödeteceğiz.”), “Murderer State” (“Katil devlet”), “Revolutionary martyrs are immortal” (“Devrim şehitleri ölümsüzdür.”), “Martyrs are immortal” (“Şehit namırın”), were chanted and the applicants participated in the gathering. The public prosecutor further noted that Mr Ahmet Doğan had participated in the gathering of 8 June 2005, during which the following slogans had been chanted: “No emancipation alone, either all of us or none of us.” (“Kurtuluş yok tek başına, ya hep beraber ya hiçbirimiz.)”, “Arrests, provocations and coercion cannot discourage us.” (“Tutuklamalar, provakasyonlar, baskılar bizi yıldıramaz.”), “We will resist and succeed” (“Direne direne kazanacağız.”), “We have paid a price; we will make them pay a price.” “Bedel ödedik, bedel ödeteceğiz”). 11. On 31 March 2009 the Ankara Assize Court found the applicants guilty as charged and sentenced each of them to ten months’ imprisonment pursuant to section 7(2) of Law no. 3713, except for Mr Ahmet Doğan, who was sentenced to twenty months’ imprisonment. As regards the gathering of 21 June 2005, the assize court found it established that the slogan “Martyrs are immortal” had been chanted by Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Olcay Bayraktar and Mr Ahmet Doğan and that the slogans “The murderer state will pay the price”, “Revolutionary martyrs are immortal” and “Long live revolutionary solidarity” had been chanted by Mr Yaşar Çalışkan, Mr Kürşad Arslan and Ms Dilek Kömpe. The court also found it established that all the applicants except for Mr Olcay Bayraktar had chanted the slogan “We have paid a price; we will make them pay a price” and that Mr Ahmet Doğan had carried a banner bearing the slogan “Ovacık Martyrs are immortal”. As regards the gathering of 8 July 2005, the court noted that Mr Ahmet Doğan had chanted the slogans “Arrests, provocations and coercion cannot discourage us.”, “We will resist and succeed” and “We have paid a price; we will make them pay a price.” during that public gathering. 12. In its judgment, the Ankara Assize Court referred to Article 10 of the Convention as well as to the Court’s judgment in the case of Sürek v. Turkey (no. 1) ([GC], no. 26682/95, ECHR 1999IV) and the report of the European Commission of Human Rights in the case of Karataş v. Turkey (no. 23168/94, Commission’s report of 11 December 1997). The court held that by chanting the above-mentioned slogans the applicants had not exercised their democratic rights but had glorified terror by adopting the style of discourse of terror organisations and that they had not distanced themselves from violence. In the court’s view, by chanting those slogans the applicants had not intended to find a solution to a problem but had praised and glorified the source of the problem, that is to say, the terrorist organisations concerned. Hence, the applicants had incited terror. The Ankara Assize Court concluded that chanting the slogans in question could not be considered as falling within the scope of the right to freedom of expression. 13. On 8 July 2010 the Court of Cassation upheld the judgment of 31 March 2009 in so far as it concerned the applicants’ conviction. 14. On unspecified dates the applicants served their prison sentences.
| 1 |
test
|
001-168091
|
ENG
|
MKD
|
ADMISSIBILITY
| 2,016 |
MILOŠEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 4 |
Inadmissible
|
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
|
1. The applicant, Mr Blage Miloševski, is a Macedonian national who was born in 1960 and lives in Skopje. He was represented before the Court by Mr S. Janev, a lawyer practising in Skopje. 2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 14 August 2001 J.G. (a Czech national with two office addresses, in the United Kingdom and in the Czech Republic) issued a “payment order” to Bank T., a bank incorporated in the respondent State, for payment of 1,450,000 United States dollars (USD) to the applicant, conditional upon the availability of funds in J.G.’s bank accounts in Bank T. The payment order also specified that if no funds were available in those bank accounts, J.G. would be liable to pay the applicant the pledged sum of money in cash. The relevant part of the payment order, co-signed both by J.G. and the applicant, reads as follows: “I, Dr J.G., Trustee and Attorney with this, hereby inform and give an irrevocable order to Fiduciary bank: T. a.d. Skopje to unconditionally pay out in my name to Mr Milosevski Blage ... the amount of USD 1,450,000.00 USD (in words: USD one million four hundred and fifty thousand) in cash from either of my accounts [opened with Bank T.] immediately after the arrival of USD 4,500,000.00 in those accounts. This payment order shall constitute a firm obligation on the part of Bank T. and it shall pay out the amount stated hereunder to Mr. Milosevski Blage immediately, whenever this payment order is presented to T. a.d. Skopje. In the event that such resources ... have not arrived in either of my accounts [specified] above in due time, I am fully legally responsible to fully pay the amount of USD 1,450,000.00 in cash to Mr Milosevski Blage at his first call and demand.” 5. On 29 June 2004 the applicant, through his representative, submitted the payment order to the Skopje Court of First Instance (“the first-instance court”) and requested its enforcement. In his “enforcement request” (предлог за извршување), amended on 3 November 2004, the applicant stated that both Bank T. and J.G. had failed to fulfil the provisions of the payment order. He proposed that enforcement be allowed in the following terms: “Enforcement is allowed of the payment of USD 1,450,000.00, plus interest ... and costs ... from the debtor’s [J.G.’s] funds (парични средства), that is to say (односно) from his assets in company D., incorporated in Ireland as capital of 51% in company T.T. incorporated in the Czech Republic ... by the transmission of the [first-instance court’s] enforcement order from the Ministry of Justice [of the respondent State] to the Ministry of Justice of the Czech Republic so that the competent court in the Czech Republic might proceed further with the enforcement and transfer the above-mentioned amount to the [applicant’s] personal bank account ... in Bank T. in Skopje. Alternatively, if no assets of company T.T. are available in the Czech Republic, enforcement is proposed in respect of those of the debtor’s funds that are available in company T.T.’s bank accounts at Bank M. in Frankfurt, Germany, or at any other institution where the debtor holds personal capital or stake in his other companies in the Czech Republic, or movable or immovable property or capital to be found at any other place. This decision will be delivered to the [respondent State’s] Ministry of Justice, so that it can be transmitted for enforcement, via the competent [Czech] ministry, to the competent authorities in the Czech Republic. The applicant and his representative will be notified in the event of any problems with the enforcement.” 6. On 9 November 2004, by affixing the standard stamp to the applicant’s enforcement proposal, the first-instance court allowed the enforcement, as proposed by the applicant (the “enforcement order”). According to the instruction contained in the text of the stamp, the debtor could object (приговор) to the enforcement order within eight days of receiving it. The enforcement order was signed by Judge V.B. 7. The enforcement order was transmitted in the Czech Republic, through the Ministries of Justice of the respondent State and the Czech Republic, to J.G.. On 28 February 2005 J.G. signed the delivery slip, which together with the complete file was returned to the respondent State. The fact that the file was returned was the reason for the first-instance court’s seeking further information from the relevant Ministries as to whether J.G. had indeed received the enforcement order translated into Czech. The relevant Ministry did not clarify the matter. 8. On 29 June 2005 the first-instance court, relying on “the general provisions and principles of the Enforcement Proceedings Act” (hereafter “the Act”), terminated the enforcement (се запира извршувањето) and quashed the enforcement measures (спроведените извршни дејствија се укинуваат). The first-instance court stated that the payment order could not be regarded as suitable for enforcement (извршна или веродостојна исправа), that the enforcement order had been issued in error (превид), and that it was in both parties’ interests that the enforcement be terminated. This decision was made by Judge Z.C., who had in the meantime been appointed to sit in the case. 9. On 31 May 2006 the Skopje Court of Appeal (“the second-instance court”) upheld the applicant’s appeal and remitted the case for fresh consideration. It found that the first-instance court was bound by its enforcement order of 9 November 2004 and that it was unclear why it had concluded that it was in the parties’ interests for enforcement to be terminated. In this connection it noted that the enforcement order had been served on both parties, that neither party had appealed against it, and that the first-instance court could not assess the “substantive legality” (материјалната законитост) of the enforcement order. The second-instance court added that the first-instance court, when considering the case anew, should assess whether any of the statutory conditions for the termination of the enforcement (запирање на извршувањето) had been met. 10. On 26 June 2006 the president of the first-instance court granted a request by the applicant for the withdrawal of Judge Z.C. and appointed Judge M.N. to sit in the case. On 12 July 2006 the first-instance court again terminated the enforcement. It noted that it had received, on two occasions, a notification from Bank T. that no funds had been available on J.G.’s bank accounts to cover the applicant’s claim. By citing provisions of the Act relevant to the courts’ territorial competence for enforcement over funds, movable property and stakes in companies (see paragraph 14 below) and by taking into account the provisions of the Trade Companies’ Act regarding companies’ seats and legal status, the first-instance court concluded that the enforcement, as allowed by the enforcement order, was impossible. In this connection, it stated: “... the enforcement sought concerned moveable property outside (the respondent State) ... It is absolutely impossible for a court in (the respondent State) to carry out enforcement against property in a foreign State in which different rules apply. It is true that the enforcement in the present case was allowed and that the (enforcement order) became final ... the court has no jurisdiction to proceed with the enforcement against shares in a foreign company in a foreign State ... the enforcement concerns shares of a foreign company from the Czech Republic, which is absolutely impossible to carry out under the Enforcement Act of the Republic of Macedonia. The Trade Companies’ Act clearly provides that the competent court ratione loci is the court in the place where the foreign company is registered.” 11. On 20 July 2006 the applicant appealed, arguing, inter alia, that there was no legal ground in the Act for the termination of the enforcement in the instant case. He further submitted that under the bilateral agreement applicable between the respondent State and the Czech Republic (hereafter “the Bilateral Agreement”) (see paragraphs 16 to 18 below), the enforcement order should have been transmitted through the respondent State’s Ministry of Justice to the competent Czech authorities, so that the latter could proceed further with the enforcement. 12. On 28 March 2007 the Skopje Court of Appeal dismissed the applicant’s appeal and confirmed the lower court’s decision. It held that the first-instance court had not terminated the enforcement proceedings, but had only terminated the enforcement. In this connection it observed that a distinction should be made between (i) the termination of enforcement proceedings (запирање на извршната постапка) as a final completion of enforcement proceedings and (ii) the termination of enforcement (запирање на извршувањето) as completion of only a stage of the enforcement proceedings, completely or regarding a particular object of enforcement. The court referred to the lack of funds in J.G.’s accounts in Bank T. and reiterated the reasons of the lower court that the Macedonian courts had no jurisdiction to proceed with the enforcement against funds and moveable property in foreign companies for which the power of enforcement was vested with the courts of the jurisdiction within which such assets were located. The applicant was served with this decision on 4 October 2007. 13. Subsequently, the applicant asked the first-instance court to attest to the finality and enforceability of the enforcement order (издавање на правосилност и извршност на решение). On 7 April 2008 the applicant’s request was dismissed. The first-instance court held that no such measure could be taken, since there existed a final decision on the termination of the enforcement. It further pointed out that no further enforcement measures could be taken on the basis of the enforcement order. On 3 July 2008 the second-instance court dismissed the applicant’s appeal and confirmed the first-instance court’s decision. 14. This Act regulated the enforcement of court decisions. Section 13 provided for the subsidiary application of the Civil Proceedings Act. Section 69 contained a general provision that an enforcement proposal concerning moveable assets should be decided by a court with jurisdiction in the territory in which such assets are located. Sections 91 and 206 specified that an enforcement proposal concerning funds or the transfer of moveable assets should be decided, respectively, by a court with jurisdiction in the territory in which the debtor in question lives or in which such moveable assets are located. Section 137-a prescribed that enforcement proposals concerning shares and stakes in companies should be decided by a court with jurisdiction in the territory in which the company concerned is registered. 15. Section 15 of this Act stipulated that a court should regularly and of its own motion verify that a pending case was within its competency. 16. Article 53 of the Bilateral Agreement, which is binding on the respondent State, stipulates that the competent court for recognition and enforcement of a court judgment delivered by courts of a Contracting State shall be the court of the State in which the judgment is to be enforced. 17. Article 54 provides that a request for recognition or enforcement can be submitted to the directly competent court in the State in which the judgment is to be recognised or enforced, or to the court which decided the matter at the first instance which shall, in such a case, transmit that request to the other State. Any such request shall be accompanied by a certified copy of the enforcement decision, together with an attestation that the decision has become final and enforceable (unless this stems from the decision itself). 18. Under Article 55, the court of the State in which the enforcement should take place shall decide and proceed with the enforcement in line with its national legislation.
| 0 |
test
|
001-168391
|
ENG
|
BGR
|
COMMITTEE
| 2,016 |
CASE OF KOVACHEV v. BULGARIA
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Carlo Ranzoni;Khanlar Hajiyev
|
4. The applicant was born in 1955 and lives in Yambol. 5. The applicant and his brother co-owned a house with a yard and a garage in Yambol. 6. By a decision of the mayor of 31 January 1983 the property was expropriated with a view to constructing a residential building. The decision, based on section 98 (1) of the Territorial and Urban Planning Act of 1973 (Закон за териториалното и селищно устройство – “the TUPA”), stated that the applicant and his brother were to be compensated with flats in a building which the municipality intended to construct. 7. On an unspecified date the flats were constructed and delivered to the applicant and his brother. 8. On 13 July 1994 the mayor modified the decision of 31 January 1983, stating that the two brothers were also to be compensated with a common garage. The applicant’s brother informed the mayor that he renounced his right to compensation with a garage in the applicant’s favour. 9. By a supplementary decision of 30 May 1995, based on section 100 of the TUPA, the mayor held that the applicant was to be compensated with the right to build a garage on a municipal land and determined the exact location of the future garage. The applicant did not appeal against that decision and apparently prepared to start the construction works. 10. By a decision of 9 October 2002 the mayor modified the previous decision of 30 May 1995, indicating another municipal plot of land where the future garage was to be built, as it had turned out that the previous one was not owned by the municipality. That decision was not appealed against by the applicant, but was eventually set aside by the Yambol regional governor after it had been contested by third persons. 11. On an unspecified date in 2010 the applicant brought a tort action against the Yambol municipality, claiming a wrongful failure on its part to provide him with a garage. The action was dismissed, the final judgment being given by the Supreme Administrative Court on 30 March 2011. The domestic courts held that no unlawful inactivity on the part of the authorities had been established, neither had it been shown that the applicant had sustained any damage. 12. In June 2011 the applicant agreed to receive compensation in cash in lieu of the garage due to him. It appears that the municipality had been offering such a solution since 2007. The compensation in cash was paid to the applicant on 4 April 2012.
| 1 |
test
|
001-144681
|
ENG
|
HRV
|
CHAMBER
| 2,014 |
CASE OF MARIĆ v. CROATIA
| 3 |
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 family life;Respect for private life);Non-pecuniary damage - award
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
|
5. The applicant was born in 1966 and lives in Žrnovica. 6. On 7 August 2003 the applicant’s wife, in the ninth month of pregnancy, gave birth to a stillborn child at Split Clinical Hospital (Klinički bolnički centar Split), a publicly owned health institution. 7. After the birth the applicant and his wife did not want to take their child’s remains, so the hospital assumed the responsibility for the body. 8. An autopsy carried out in the hospital on 18 August 2003 showed that the child had died as a result of gestational complications. 9. On 13 October 2003 the hospital disposed of the child’s body together with other clinical waste (human tissue and amputated body parts). The clinical waste was taken by the hospital’s contractor, company L., to the Zagreb cemetery for cremation. 10. Soon afterwards the applicant and his wife started to enquire about their child’s burial, but were unable to obtain any specific information. 11. On 2 June 2004 the applicant and his wife brought a civil action against the hospital in the Split Municipal Court (Općinski sud u Splitu), seeking damages for distress caused by the manner in which it had disposed of their child’s body. They argued that they had given their consent to an autopsy and burial of their child, but the hospital had failed to show that they had performed the burial and to inform them where it had taken place. 12. The hospital raised the defence that they had acted in accordance with section II of the Ministry of Health’s Instructions on the Disposal of Clinical Waste, allowing them to dispose of the child’s body together with other clinical waste. 13. At a hearing on 24 November 2004 the court heard evidence from pathologist Š.A., who carried out the autopsy of the child’s body. He explained that in situations in which parents did not want to assume responsibility for the body of their stillborn child, the hospital was required by law to treat the body as clinical waste and to dispose of the remains by cremation or burial. He further explained that before concluding the contract with company L. in 2002, the hospital had buried bodies of stillborn babies in a communal grave. Company L. had then suggested cremating the bodies rather than burying them, because the communal grave had been full. The applicant’s child’s remains had therefore been packed together with other clinical waste and taken to the Zagreb cemetery for cremation. The applicant’s wife disputed Š.A.’s version of events, arguing that Š.A. had first told her that her baby had been buried. Š.A. replied that he had initially thought that to be the case, not finding out until later what had actually happened. 14. Another hearing was held on 1 February 2005, at which a nurse from the hospital, M.K., gave oral evidence. She testified that after the child’s body had been taken to the pathology department, she had spoken to the applicant who had told her that he wanted the hospital to bury his child. She had seen the applicant on another occasion, and he had told her that he did not want to assume responsibility for the funeral. When the applicant had again approached her to ask where the burial had taken place, she had told him that his child had been buried in the communal grave, although she had not been sure, but in any event she had considered cremation in the communal grave to be a form of burial. The witness also expressed her regret that the applicant might have been under the impression that the child would be buried in an individual grave. The applicant disputed M.K.’s version of events, asserting that he had asked for all the documents and invoices concerning the burial to be forwarded to him. Nurse M.K. admitted that that was true, but that no such documents existed, which she had told the applicant already. 15. At the same hearing two other witnesses, Z.S. and V.T., technicians in the hospital’s pathology department, gave evidence. Z.S. testified that the hospital had abandoned its practice of burials in 2002 and had started cremations. The same procedure had been applied in the case of the applicant’s stillborn child, whose remains had been taken together with other clinical waste and cremated. V.T. confirmed that he had personally placed the remains of nine children in a box, which had been taken away by company L., but he did not know what had happened to them later. 16. At a hearing on 23 March 2005 the director of company L. testified that the remains of the applicant’s child had not been buried at the cemetery, but had been disposed of with other clinical waste and cremated. He explained that there was a communal grave in which bodies could be buried, if parents so requested and were granted the necessary authorisation. Otherwise the bodies were cremated. The practice was to place the bodies in one large wooden box together with other clinical waste and to take them to the Zagreb cemetery for cremation. 17. At the same hearing the applicant and his wife Ž.M. gave their oral evidence. Ž.M. stated that she had been in a state of shock after the birth of her stillborn child and had been suffering psychologically ever since. They had therefore requested that nurse M.K. arrange for the child to be buried in the local graveyard. As soon as she was feeling better, Ž.M. had requested information from the hospital about the child’s burial and was told that her child was buried in the local graveyard. However, at the graveyard she was told that no such burial had taken place. For some time afterwards nobody could tell her what had happened to her child’s body, until a meeting was held in November 2003 at the hospital where she learned that the child had been cremated at the Zagreb cemetery. She and her husband had contacted the cemetery, who replied that they did not know anything about the cremation of their child, and that the remains of a stillborn child would not be cremated without the relevant documentation. The applicant testified that nurse M.K. had never advised him exactly what would happen to his child’s body, and that he would have never allowed his child to be cremated in such a manner. He also confirmed that he had learned from the Zagreb cemetery that the body of a stillborn child would not be cremated without the relevant procedural documentation. 18. On 6 April 2005 the Split Municipal Court dismissed the civil action on the grounds that after the applicant and his wife had declined to assume responsibility for the body, the hospital had, in accordance with the law, disposed of the child’s body together with other clinical waste. The relevant part of the judgment reads: “There is no dispute between the parties that on 7 August 2003 [Ž.M.] gave birth to a stillborn child, and that an autopsy of the remains and placenta has been carried out, and that in the pathologist’s office [the applicant] declined nurse M.K.’s suggestion that he assume responsibility for the burial of the stillborn child. The defendant therefore, in accordance with the Instructions on the Disposal of Clinical Waste (Official Gazette no. 50/2000) in conjunction with section 58 of the Protection from Infectious Diseases Act (Official Gazette nos. 60/1992, 26/1993 and 29/1994), considered the placenta and foetus to be clinical waste within the meaning of section 20 of the by-law on the measures of preventing and combating hospital infections (Official Gazette no. 93/2002), which provides that foetuses are clinical waste in cases where the mother was up to twenty-two weeks (five-and-a-half months) pregnant, although there is no dispute in the case at issue that [Ž.M.] gave birth to a stillborn child after nine months of pregnancy, who was not however reported as living, unlike in cases where the child was born alive and then died. ... It therefore follows that the defendant, in disposing of the plaintiffs’ stillborn child (in a situation in which they had refused to assume responsibility for the burial and did not have a family grave), acted in compliance with the above-mentioned regulations and the contract with company L. The defendant therefore is under no obligation to pay compensation.” 19. The applicant and his wife appealed to the Split County Court (Županijski sud u Splitu) on 13 May 2005. They argued that the relevant facts had not been properly established, and that it remained unclear where and how the body of their child had been buried. They also pointed out that the regulations to which the first-instance court had referred did not stipulate that the body of a stillborn child could be treated as clinical waste. 20. On 24 May 2007 the Split County Court dismissed the appeal and upheld the first-instance judgment. It considered, however, that the first-instance court had erred in finding that the child’s body had been disposed of in accordance with the law, but that given that no provision of the law obliged the hospital to inform parents where their stillborn child was buried, the applicant and his wife could not claim any damages in that regard. The Split County Court in particular held: “It should be noted at the outset that this court does not accept the findings of the first-instance court, which found the defendant’s exoneration from liability under the provisions of the Instructions on the Disposal of Clinical Waste (Official Gazette no. 50/2000; hereinafter ‘the Instructions’) and the by-law on the measures of preventing and combating hospital infections (Official Gazette no. 93/2002; hereinafter ‘the by-law’). These regulations do not concern the question as to the manner in which hospitals should deal with the bodies of stillborn children. They concern, inter alia, the manner in which clinical waste should be disposed of, including foetuses in cases where the mother was up to twenty-two weeks pregnant (section 20(3) of the by-law), which is not the case in the present case, in which [Ž.M.] gave birth to a stillborn child after nine months of pregnancy. Although the existing legislation has not regulated the issue of the legal status of a stillborn child coherently, this court finds that the aforementioned Instructions and by-law are not applicable. This is because there are specific provisions which clearly differentiate between a foetus and a stillborn child. Unlike a foetus: - a stillborn child must be registered in the register of births (sections 9 and 12 of the State Registers Act – Official Gazette no. 96/1993) - a stillborn child, just like any other deceased person, may only be buried or cremated after examination by a coroner (sections 2 and 8 of the by-law on the examination and establishment of the time and cause of death – Official Gazette nos. 121/1999, 133/1999 and 112/2000). There is therefore no doubt for this court that a stillborn child, unlike a foetus, can be buried (or cremated) in the same manner as any other deceased person under the relevant provisions of the Cemeteries Act (Official Gazette no. 18/1998), which provides that a deceased person shall be buried in his [or her] local cemetery or another graveyard chosen by the deceased or his or her next-of-kin (section 12). However, neither the above-mentioned provisions, any other provisions regulating the conduct of the defendant towards its patients (Health Care Act – Official Gazette nos. 121/2003, 48/2005 and 85/2006), nor any other provisions of the law, oblige the defendant, as a healthcare institution, to bury a body not taken away by the next-of-kin at a location which is known to them. The defendant is therefore not liable for damages because the grounds for liability, within the meaning of section 154 of the Obligations Act (Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 91/1996, 112/1999 and 88/2011) in conjunction with section 1163 of the Obligations Act (Official Gazette no. 35/2005), have not been established. The plaintiffs’ reliance on liability for breach of a contractual duty is not applicable because the relevant provisions of the Obligations Act do not provide for such damages.” 21. The applicant and his wife also lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) on 28 September 2007, arguing that they found it incomprehensible that the hospital could not be held to account despite failing to act in compliance with the relevant domestic law when disposing of the body of their stillborn child. 22. On 12 November 2008 the Supreme Court dismissed the appeal on points of law, endorsing the reasoning of the Split County Court. It added: “It should also be noted that the mental anguish the parents are suffering because they do not know where their child’s grave is and thus are unable to visit it, is not a form of non-pecuniary damage within the meaning of sections 200 and 201 of the Obligations Act (Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) ... only mental anguish caused by loss of amenities of life, disfigurement, breaches of reputation, honour, liberty or personality rights or the death and serious disability of a close relative warrant the award of non-pecuniary damages. Any other mental anguish arising from other situations is not a legal basis for the award of damages.” 23. The applicant and his wife then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating his previous arguments. He argued that the remains of his stillborn child had been disposed of improperly and that he was unable to obtain information about where the child was buried. 24. On 1 February 2012 the Constitutional Court declared it inadmissible as manifestly ill-founded, holding the following: “In their constitutional complaint, the appellants were unable to show that the competent courts had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainants’ constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on. ... “ 25. This decision was served on the applicant on 27 February 2012. 26. On 9 June 2005 the applicant lodged a criminal complaint with the Split Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Splitu) against the employees of the hospital and company L., alleging that the burial of his stillborn child had not been documented or conducted properly. 27. The Split Municipal State Attorney’s Office questioned the pathologist (see paragraph 13 above), who explained that foetuses and the bodies of stillborn children were disposed of together with other clinical waste, as had happened with the body of the applicant’s stillborn child. There was no need for parents to give any special written consent, because it was not required by law. 28. On 10 February 2006 the Split Municipal State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that the body of his stillborn child had been disposed of in accordance with the relevant law and procedures. 29. The applicant took over the prosecution as a subsidiary prosecutor and on 29 January 2007 lodged an indictment in the Split Municipal Court against V.T., M.K. and Z.S. (see paragraphs 14 and 15 above) on charges of negligent performance of duties. 30. On 24 October 2008 the Split Municipal Court rejected the indictment on the grounds that the hospital’s employees had acted in accordance with the relevant legislation, namely the Ministry of Health’s Instructions on the Disposal of Clinical Waste, the Protection from Infectious Diseases Act, and the by-law on the measures of preventing and combating hospital infections. 31. The applicant appealed to the Split County Court, but on 3 March 2009 it was dismissed as groundless. 32. In September 2009 the applicant brought his case to the attention of media, which prompted the State Attorney’s Office to re-examine his complaints. 33. In a report dated 8 September 2009, the Split Municipal State Attorney’s Office informed the Split County State Attorney’s Office (Županijsko državni odvjetništvo u Zagrebu) of the course of the applicant’s case. It referred to the civil proceedings in which the applicant’s damages claim against the hospital had been dismissed, and reiterated that the body of the stillborn child had been disposed of in accordance with the procedure required by law and thus did not constitute a criminal offence.
| 1 |
test
|
001-177213
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF MEDVEDEV v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
|
Alena Poláčková;Helen Keller;Pere Pastor Vilanova
|
4. The applicant was born in 1970 and lives in Murmansk. 5. On 24 September 2004 the applicant was arrested on charges of robbery. Two days later the Polyarniy Town Court of the Murmansk Region imposed on the applicant an undertaking not to leave the place of his residence. 6. On 21 February 2005 the Town Court, presided by Judge D., convicted the applicant of robbery and forgery, sentenced him to seven years and four months of imprisonment and ordered his detention pending the appeal proceedings. 7. On 3 May 2005 the Murmansk Regional Court, under the presidency of judge K., quashed the judgment on appeal and remitted the case to the Town Court for a fresh examination, ordering that the applicant should remain in custody. 8. On 3 June 2005 the Town Court, in its turn, further extended the applicant’s detention and remitted the case to the Murmansk Prosecutor’s Office for the elimination of certain procedural deficiencies preventing the examination of the case on the merits. 9. The applicant’s detention was once again extended by the Town Court, presided by judge D., on 16 August 2005. The applicant challenged the presiding judge on the ground that he had convicted him on 21 February 2005. Judge D. refused to step down. The applicant also raised that point in his statement of appeal against the detention order. On 6 September 2005 the Regional Court, presided by Judge K., found no grounds for Judge D. to step down. The Regional Court reasoned that by virtue of Articles 61 and 63 of the Russian Code of Criminal Procedure Judge D., who had already presided over the applicant’s trial once, could not take part in the new trial proceedings, however, he was not prevented from deciding on detention matters. 10. On 18 November 2005 the Town Court further extended the applicant’s detention. The parties disagreed as to whether the applicant had been served with a copy of that detention order. While the applicant argued that he had never received it, the Government stated that the detention order had been served on him on 5 December 2005. They supported their claim with a copy of the Town Court’s letter of 29 November 2005 by which the detention order had been forwarded to the applicant and a copy of the detention order from his personal file kept in a remand prison, bearing the applicant’s signature and the date of receipt. 11. On several occasions the trial court adjourned hearings in the applicant’s case. In particular, on 30 November 2005 the hearing was re-scheduled for 15 December 2005 because the applicant and his co-defendant asked to summon several defence witnesses. The hearing on 15 December 2005 was also adjourned owing to the applicant’s and his co-defendants’ counsel failure to appear. In the same decision the court, of its own motion, extended the applicant’s detention. 12. The applicant appealed, complaining, in particular, that the detention order of 15 December 2005 was delivered in his counsel’s absence. On 17 January 2006 the Regional Court, presided by Judge K., dismissed the appeal, having noted that the counsel had failed to appear without providing any explanation for his absence. The appeal hearing was attended by a prosecutor and the applicant’s counsel, but not by the applicant himself, despite his request to that effect. 13. On 10 April 2006 the Town Court convicted the applicant of extortion and sentenced him to three years’ imprisonment and a fine of 3,000 Russian roubles (RUB). The Regional Court upheld the conviction on 5 September 2006, but reduced the sentence.
| 1 |
test
|
001-172467
|
ENG
|
TUR
|
COMMITTEE
| 2,017 |
CASE OF SALĞIN v. TURKEY
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
|
Jon Fridrik Kjølbro;Georges Ravarani;Ksenija Turković
|
4. The applicant, who was born in 1989, was detained at the Tekirdağ prison when the application was lodged. 5. On 9 July 2010 the applicant was taken into police custody on suspicion of membership of a terrorist organisation. 6. On 13 July 2010 the investigating judge at the Istanbul Assize Court, after questioning the applicant, ordered his pre-trial detention having regard to the nature of the offence, the state of the evidence and the strong suspicion of the suspect’s having committed the offence in issue. 7. On 7 September 2010 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with membership of an illegal terrorist organisation. 8. The trial commenced before the 9th Chamber of the Istanbul Assize Court and the first hearing was held on 15 February 2011. 9. In the hearings held on 21 February 2012 and 3 May 2012, respectively, the applicant appeared before the court, and the judges ordered his continued detention. The applicant filed objections against these decisions. On 7 March 2012 and 8 June 2012 respectively, the 10th Chamber of Istanbul Assize Court dismissed the applicant’s objections without holding an oral hearing and based on the public prosecutor’s opinion which had not been communicated to the applicant or his representative. 10. During the eleventh hearing held on 30 July 2013, the 9th Chamber of the Istanbul Assize Court ordered the applicant’s continued detention on remand.
| 1 |
test
|
001-182448
|
ENG
|
HRV
|
CHAMBER
| 2,018 |
CASE OF HOTI v. CROATIA
| 3 |
Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;Armen Harutyunyan;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
|
5. The applicant was born in 1962 and lives in Novska. He is of Albanian origin. 6. In 1960 the applicant’s parents fled Albania as political refugees and settled in Kosovo, which was at the relevant time an autonomous province of Serbia. They were granted refugee status in the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The SFRY was a federal State composed of six republics: Bosnia and Herzegovina, Croatia, Serbia (with two autonomous provinces, Vojvodina and Kosovo), Slovenia, Montenegro and Macedonia. 7. The applicant was born in Kosovo soon after his parents’ arrival to the SFRY. In 1979 the applicant, at the time seventeen years old, came from Kosovo to Croatia. He settled in Novska, where he has lived ever since. 8. The applicant has no family in Croatia. Since moving to Croatia, his parents have died in Kosovo. For a while, the applicant maintained a relationship with his two sisters, who lived in Germany and Belgium (see paragraphs 21, 29 and 35 below). In 2014 he declared to the domestic authorities that his only close relative was his sister in Belgium, with whom he had lost contact (see paragraph 48 below). 9. In 1987 the applicant applied for a permanent residence permit to the relevant police station in Novska. 10. He was instructed by the Novska police that he should regularise his status in Kosovo, where he had been officially registered. However, as the applicant refused to do that, he was provided with a temporary residence permit in Novska for the period between 4 January and 30 June 1988, pending the determination of his request for a permanent residence permit. 11. At the relevant time, the applicant possessed a certificate issued by the SFRY authorities in Kosovo in 1988 indicating that he had been an Albanian national with the status of a foreigner holding a temporary residence permit in the SFRY. The certificate also indicated that the applicant’s parents had been nationals of Albania living in the SFRY as refugees. 12. On 2 February 1989 the Ministry of the Interior of the then Socialist Republic of Croatia informed the Novska police that the applicant’s application for a permanent residence permit in the SFRY had been refused in accordance with the government policy according to which Albanian refugees should be instructed to apply for the SFRY citizenship. 13. On 22 February 1989 the applicant was interviewed by the Novska police in connection with the Ministry of the Interior’s instruction. He explained that he had been granted a temporary residence permit by the relevant authorities in Kosovo which was valid until July 1989. He also stated that he had attempted to travel to Germany but had not had a valid visa and had thus been refused entry. At the time he was waiting for a visa for Belgium. The applicant further explained that he hoped to be granted a permanent residence permit but that he was not interested in acquiring SFRY citizenship as that would not provide him with any security. He considered that by acquiring SFRY citizenship, he should be granted a flat or a house in private ownership just as one had been granted to his father when he had come from Albania as a refugee. However, as he would not be granted any property, he refused to apply for SFRY citizenship. 14. On 23 February 1989 the Novska police informed the Ministry of the Interior that the applicant had refused SFRY citizenship. The report further explained that the applicant was employed in a garage of a private entrepreneur, M.R., and that he had several times contacted the Novksa police insisting that he be granted permanent residence. The report also indicated that according to the available information the applicant had secured a temporary residence permit from the authorities in Kosovo until July 1989. 15. A further report of the Novska police to the Ministry of the Interior of 26 February 1990 indicated that the applicant was still living in Novska and working in a restaurant. As his temporary residence permit issued by the authorities in Kosovo had expired, he had been instructed to regularise his status. This report also contains a handwritten note dated 12 June 1990 according to which the applicant had come to the police station and presented an identity card for a foreigner with temporary residence status in the SFRY issued by the relevant authorities in Kosovo and valid until 5 November 1991. 16. On 25 June 1991 the Croatian Parliament (Sabor Republike Hrvatske) declared Croatia independent of the SFRY, and on 8 October 1991 all ties between Croatia and the SFRY were severed. 17. Meanwhile, war broke out in Croatia and the applicant was called up for mandatory civilian service with the local authorities. On 22 March 1992 the Novska police issued a permit to the applicant to move freely within the region of Novska-Kutina in order to perform his mandatory civilian service. The permit was valid until 31 December 1992. 18. On 9 June 1992 the applicant applied for Croatian citizenship with the Novska police. He submitted that he had been living at his current address in Novska since 1980s, and that he had been a refugee from Albania. He also explained that he was working in a garage of a private entrepreneur, Z.A. 19. On 20 July 1992 the Novska police forwarded the applicant’s application to the Ministry of the Interior of the Republic of Croatia (Ministarstvo unutarnjih poslova Republike Hrvatske – hereinafter “the Ministry”) with a suggestion that it be granted. 20. On 2 November 1992 the Ministry instructed the Novska police that they had failed to provide a report concerning the applicant’s personal circumstances and information on his residence in Croatia. 21. In connection with the above application, on 16 December 1992 the applicant was interviewed by the Novska Police. In his interview, the applicant explained that he had Albanian nationality as he had been a refugee from that country. He further explained that he had come to Novska in 1979 where he had first worked as a waiter until 1984. Between 1986 and 1989 he had worked as a car mechanic for a private entrepreneur, M.R., and since 1989 for Z.A. During the war he had worked as a car mechanic for the police and the army. He was not married and did not have children. He had a sister living in Germany and one living in Belgium. He also had a brother living in Kosovo and another brother living at an unknown place in Albania. His parents lived in Kosovo. 22. On 18 December 1992 the Novska police informed the Ministry of the obtained information explaining that the applicant had lived in Novska as a foreigner since 1980 and that he had Albanian citizenship. 23. In May 1993 the national intelligence agency informed the Novska police that there was nothing preventing the applicant from being allowed to acquire Croatian citizenship. 24. According to the available information, the file concerning the applicant’s application also contained a birth certificate issued by the SFRY authorities in Kosovo on 23 December 1987 according to which the applicant did not have any nationality. 25. On 14 June 1993 the Ministry issued an assurance that the applicant would obtain Croatian citizenship if he obtained a release or provided evidence that he had renounced his Albanian citizenship within a period of two years. In its reasoning to this assurance, the Ministry explained that the applicant had met all the necessary conditions to be granted the assurance and thus Croatian citizenship. It also referred to section 8a of the Croatian Citizenship Act (see paragraph 60 below). 26. Upon the expiry of the above-noted period of two years, on 16 February 1995 the applicant lodged a new application for Croatian citizenship with the Novska Police. He explained that he was a national of Albania and that he had been living in Croatia since 1979. He was asking for Croatian citizenship in order to obtain legal certainty of his position. He stressed that he was ready to renounce his current citizenship and that he had nowhere to go back to in Kosovo. He also explained that he was employed as a car mechanic. 27. Meanwhile, the applicant had obtained a permit for extended residence of a foreigner (he was considered to be an Albanian citizen) from the Novska police for the period between September 1993 and September 1994, which was first extended until September 1995 and then January 1996. He was also granted a driving licence on 14 April 1994 valid until 19 November 2027. 28. In February 1995 the intelligence agency informed the Novska police that there was no bar to the applicant’s acquiring Croatian citizenship. 29. A report on the applicant’s personal circumstances prepared by the Novska police on 8 March 1995 indicated that he had lived in Croatia since 1979. The report contains a statement that the applicant had an Albanian passport issued in Kosovo (then part of Serbia) and that he had allegedly disappeared from his place of residence during the war in Croatia. It also suggests that the applicant socialised with individuals of similar characteristics who were involved in trading of grey-market goods and repairing cars. Moreover, the report alleged that the applicant had never tried to regularise his status in Croatia. The report also indicated that the applicant’s parents had died and that he had two sisters, who lived in Germany and Belgium. 30. On 28 March 1995 the Novska police informed the Ministry that the applicant had had a registered residence in Croatia since September 1993 (see paragraph 27 above). 31. On 3 August 1995 the Ministry dismissed the applicant’s application for Croatian citizenship on the grounds that he did not have a registered residence in Croatia for an uninterrupted period of five years as required by section 8(1)(3) of the Croatian Citizenship Act (see paragraph 60 below). 32. The applicant challenged the above decision before the Administrative Court (Upravni sud Republike Hrvatske). He argued that he had had a registered residence in Novska since 1979 and that his personal circumstances had been well known to the Novska police. He also stressed that he was in employment and that he possessed an identity card and a driving licence issued by the Novska police. 33. On 29 May 1996 the Administrative Court dismissed the applicant’s administrative action on the grounds that there was no evidence that he had had a registered residence in Croatia since 1979. In fact, according to the Novska police’s report of 28 March 1995 (see paragraph 29 above), he had had a registered residence in Novska, as a foreigner with extended residence status, since 24 September 1993. In these circumstances, the Administrative Court considered that no available evidence suggested that the applicant had had an uninterrupted registered residence in Novska for a period of more than five years as required by section 8(1)(3) of the Croatian Citizenship Act. 34. On 13 November 2001 the applicant asked the Ministry to grant him a permanent residence permit. He argued that he was employed and had sufficient means of subsistence and a strong interest to live in Croatia. Together with his application, the applicant provided the birth certificate issued by the SFRY authorities in Kosovo on 23 December 1987 (see paragraph 24 above). He also provided his employment booklet according to which he had been employed in the periods between 1 July 1986 and 15 July 1987, 1 August 1987 and 1 December 1988, and 1 January 1989 and 31 December 1989 in the garage of M.R. 35. A report on the applicant’s personal circumstances prepared by the Novska police on 24 April 2002 indicated that the applicant was a national of the Federal Republic of Yugoslavia (Serbia and Montenegro – hereinafter “the FRY”). According to the report, the applicant had settled in Novska in 1979 and had first worked in the garage of Z.A. until 1984; and then, between 1985 and 1990, in the garage of M.R. The report further indicated that the applicant was at that time unemployed and supported by his sisters in Germany and Belgium. He had lived in Novska for twenty-two years and had never left Croatia. The only document which he possessed was a driving licence. Up to that point he had been prosecuted only for a minor offence related to the status of aliens. 36. On 29 April 2002 the Ministry instructed the Novska police that the applicant should also be interviewed in connection with his application. 37. The applicant was interviewed by the Novska police on 10 June 2002. He explained that after he had been given an assurance of eligibility for Croatian citizenship (see paragraph 25 above) he had contacted the Albanian embassy several times. However, they had at first delayed their response and then dismissed his request. He had therefore been unable to obtain a certificate of renunciation of Albanian citizenship within the relevant period of two years. The applicant further explained how his second application for Croatian citizenship had been refused because he had not had a registered residence in Croatia for five years (see paragraphs 2633 above). 38. In his interview the applicant also stated he did not have a travel document of any country. So far he had always relied on his Albanian citizenship but whenever he had tried to obtain Albanian travel documents, he had been orally refused. The same was true for his attempts to obtain travel documents from the FRY. The applicant further explained that he did not have a family and was not married. He wanted to stay in Novska because there he knew a lot of people and would be able to make a living there. 39. On 3 July 2003 the Ministry dismissed the applicant’s application on the grounds that he did not meet the necessary statutory requirements under section 29(1) of the Movement and Stay of Foreigners Act (see paragraph 61 below). In particular, he was not married to a Croatian national or an alien with a permanent residence in Croatia, and he did not have three years of uninterrupted employment in Croatia. The Ministry also held that there was no particular interest of Croatia in granting him residence under section 29(2) of the Movement and Stay of Foreigners Act. The Ministry considered the applicant to be a national of Serbia and Montenegro. 40. The applicant challenged this decision before the Administrative Court. He argued that the fact that he had previously been a national of Serbia and Montenegro and had resided in Croatia since 1979 qualified him for permanent residence in Croatia. The applicant also contended that it was difficult for him to find a formal employment as he did not have permanent residence permit for Croatia. 41. On 17 August 2006 the Administrative Court dismissed the applicant’s administrative action as unfounded. The Administrative Court held that the Ministry had properly established that the applicant had failed to meet the statutory requirements under section 29(1) of the Movement and Stay of Foreigners Act as his employment booklet did not show that he had worked for an uninterrupted period of three years. Moreover, the Administrative Court considered that nothing in the circumstances of the case suggested that the applicant should be granted permanent residence under section 29(2) of that Act. 42. The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decisions of the lower bodies. He argued that he had continuously lived in Croatia since 1979 and that he had worked. He argued that he should have been granted permanent residence. 43. Meanwhile, the applicant obtained a note from M.R., for whom he had worked, attesting that he had been employed by M.R. in the period between 1986 and 1989 and that he had proved to be a hardworking and responsible employee. M.R. also promised to employ the applicant again and to secure him accommodation should he be granted permanent residence. 44. On 1 October 2008 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded endorsing the reasoning of the Administrative Court. 45. In the period between 26 July 2011 and 27 August 2013 the police three times temporarily extended the applicant’s residence for periods of one year by reference to the humanitarian grounds under the Aliens Act (see paragraph 62 below). In the relevant decisions, the applicant was considered to be a national of Kosovo. 46. When extending his temporary residence permit on humanitarian grounds on 27 August 2013 for another year under section 65(1)(5) of the Aliens Act, the applicant was requested to provide a valid travel document as provided under section 52(4) of the Aliens Act (see paragraph 62 below). 47. On 10 June 2014 the applicant again applied for an extension of his temporary residence permit. He argued that he did not have a travel document of Kosovo as he had not been there nor did he have any interest in going there. He explained that he just wanted to regularise his status in Croatia. 48. In connection with his application for an extension of his temporary residence permit, in July 2014 the applicant was interviewed by the Novska police. A note on his interview indicated that the applicant was a national of Kosovo and that he had knowledge of the Albanian language. It also stated that the applicant had been employed by M.R. in the period between 1981 and 1991 and that during the war in Croatia he had worked for Z.A. repairing military and police vehicles until 1993. Since then he had been unemployed but had been earning money by helping out on the farms in the Novska area. His parents had died and the only close relative he had was a sister living in Belgium, with whom he had lost contact. The note further explained that the applicant’s neighbours had been interviewed and that they confirmed that he had been a good and hardworking person. The note also indicated that the applicant had committed several minor offences for which he had been fined and a criminal complaint had been lodged against him in connection with a road accident in which he had been involved. 49. On 30 July 2014 the Ministry instructed the Novska police that there were no grounds to extend the applicant’s residence since he had failed to provide a valid travel document. 50. The Novska police invited the applicant for an interview on 28 August 2014 at which he was informed of the Ministry’s instruction. The applicant explained that he had come to Croatia in 1979 and had no connection to Kosovo. He had had the status of a refugee from Albania until he had reached the age of eighteen, since that status had been granted to his parents. He stressed that he had lived his whole life in Novska. He also promised to contact the embassy of Kosovo in order to obtain a travel document and asked the Novska police not to dismiss his request. 51. On 16 September 2014 the Novska police dismissed the applicant’s application for the extension of his temporary residence on humanitarian grounds. It held that the applicant did not meet the requirements for granting further temporary residence status as he had failed to provide a valid travel document and the Ministry had not given its consent to an extension of his residence permit. 52. On 7 October 2014 the applicant challenged the decision of the Novska police before the Ministry, relying on Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12. He argued that he had had SFRY citizenship, which he had lost in unclear circumstances following the dissolution of that country. As he had come from Kosovo to Croatia, it was possible that he was considered to be a national of Kosovo by the Croatian authorities, but in reality he did not have citizenship of that territory. The applicant also argued that he was not a classic alien but an individual who found himself in the very specific circumstances of the dissolution of the SFRY in a situation whereby he was no longer able to provide a valid travel document. He also contended that he had been erased from the register of domicile and residence in Croatia without ever being informed thereof. He was therefore unable to regularise his residence status in Croatia and thus to find employment, to move freely without valid documents or to travel, which was neither a lawful nor a proportionate interference with his Article 8 rights. Moreover, the applicant contended that there was a gap in the relevant domestic law as the status of individuals who found themselves in his situation following the dissolution of the SFRY was not regulated. Accordingly, a strict formal application of the Aliens Act could not lead to a solution in his case. 53. On 30 January 2015 the Ministry dismissed the applicant’s appeal. It referred to the applicant’s previous attempts to regularise his status in Croatia, which had all been unsuccessful. According to the Ministry, this showed that he had not been erased from the relevant registers without being informed. The Ministry further stressed that the applicant had been invited several times to provide a valid travel document and he had promised to contact the embassy of Kosovo in this connection but had failed to do so. Accordingly, in the Ministry’s view, his arguments that he had not been a typical alien and that the relevant authorities had formalistically applied the relevant law had been misplaced. Moreover, there was a possibility for him to obtain a temporary travel document in order to travel to his country of origin so as to obtain a valid travel document. 54. On 25 February 2015 the applicant challenged the Ministry’s decision before the Zagreb Administrative Court. He contended that he had been a national of the SFRY and that he had had a registered residence in Novska since he had arrived there in 1979, which had been erased at a later stage. He also relied on his available birth certificate showing that he did not have any citizenship (see paragraph 58 below). He also reiterated his complaints of an unjustified infringement of his Article 8 rights by a decision of the administrative authorities and a breach of Article 14 of the Convention and Article 1 of Protocol No. 12. On 21 April 2017 the Zagreb Administrative Court dismissed the applicant’s administrative action endorsing the reasoning of the Ministry’s decision. The applicant challenged these findings before the High Administrative Court (Visoki upravni sud Republike Hrvatske) and the proceedings are still pending. 55. Meanwhile, on 4 September 2015 the Novska police granted the applicant temporary residence status on humanitarian grounds for a further year inviting him to provide a valid travel document. The Novska police held that the applicant was a national of Kosovo whose parents had come from Albania to Kosovo and that they had had the status of refugees in the SFRY. It also stressed that the Ministry had given consent to the extension of the applicant’s temporary residence irrespective of the fact that he had not provided a valid travel document. 56. On 4 October 2016 the Novska police extended the applicant’s residence status on humanitarian grounds for a further year. It referred to the same reasons as cited above. 57. According to the applicant’s handwritten statement to his representative of 7 July 2015, he never had Albanian citizenship. He explained that he had contacted the Albanian embassy after he had been given an assurance that he had qualified for Croatian citizenship but they had told him that he had not been a national of that State (see paragraphs 25 and 37 above). The applicant further stressed that in his contacts with the police concerning the regularisation of his residence status, the police officers had always suggested that he had been an Albanian national. He also explained that he had been born in Kosovo and that his parents had had SFRY citizenship. He had come to Croatia in 1979. He simply wanted to regularise his status in Croatia. 58. According to a birth certificate issued by the Kosovo authorities on 10 June 2009, the applicant’s parents had had Kosovo nationality but the applicant did not have that nationality.
| 1 |
test
|
001-155495
|
ENG
|
PRT
|
ADMISSIBILITY
| 2,015 |
FERREIRA BASTO v. PORTUGAL
| 4 |
Inadmissible
|
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
The applicant, Ms Maria Adelina Ferreira Basto, is a Portuguese national, who was born in 1954 and lives in Porto. She was represented before the Court by Mr J. Dinis, a lawyer practising in Porto. 1. The applicant is the owner of a restaurant in Porto. At the relevant time the restaurant was operating with a health and safety licence (alvará sanitário). 2. On 22 November 1993 three inspectors from the General-Directorate for Primary Healthcare (Direção-Geral de Cuidados de Saúde Primários) conducted an inspection of the applicant’s restaurant during the lunch hour, when the restaurant was crowded. 3. During the inspection, one of the inspectors publicly addressed the applicant’s husband and claimed that the restaurant did not meet statutory health and safety standards and should therefore be closed down. 4. According to the applicant, on account of that criticism the restaurant lost clients. 5. On an unspecified date in 1995 the applicant brought a tort action against the State before the Porto Administrative Court (Tribunal Administrativo do Porto) seeking damages for the conduct of the health inspectors. The State was represented by the Attorney General’s Office (Ministério Público) during the course of the proceedings. 6. In order to bring the proceedings before the Porto Administrative Court, the applicant applied for legal aid. Pursuant to section 28 of LawDecree no. 387-B/87 of 29 December, the Attorney General’s Office was called upon to issue an opinion on the applicant’s request. On 27 September 1996 the latter considered that the request should be refused on grounds of the applicant’s average daily income, stating as follows: “The plaintiff admits that she has an average daily income of 30,000.00 Portuguese escudos (PTE), which had previously been PTE 60,000.00. Her monthly salary exceeds, therefore, the amounts considered to constitute a presumption of economic need, according to the legislator. I am therefore of the opinion that the plaintiff’s legal aid request should be refused.” 7. In its judgment of 23 August 1998 the Porto Administrative Court held that the conduct of the three inspectors from the Directorate-General for Primary Healthcare during the impugned inspection had been illegal and had caused damage to the applicant. Furthermore, it awarded the applicant PTE 350,000.00 (1,745.79 euros (EUR)) in respect of non-pecuniary damage and an amount in respect of pecuniary damage that remained to be determined during the proceedings for the enforcement of the judgment. 8. On an unknown date the Attorney General’s Office lodged an appeal against the judgment with the Supreme Administrative Court (Supremo Tribunal Administrativo). On 9 April 2002 the Supreme Court dismissed the appeal. 9. On an unknown date the applicant instituted proceedings before the Porto Administrative Court for the enforcement of the Supreme Administrative Court’s judgment and the calculation of the amount to be awarded in respect of pecuniary damage. She claimed damages of EUR 603,004.40, corresponding to the pecuniary losses allegedly suffered as a result of the inspectors’ conduct from the day of the inspection until such time as the action had been brought. 10. On 26 February 2004 the Attorney General’s Office contested the amount claimed by the applicant as excessive. It argued that any pecuniary damages should be limited to the loss sustained as a consequence of the reduction in the applicant’s daily income, in accordance with the facts that had been established by the first-instance court and pursuant to the Supreme Administrative Court’s judgment of 9 April 2002. 11. On 19 October 2009 the Porto Administrative Court adopted a decision in which it awarded the applicant EUR 9,010.50 in respect of pecuniary damage. The domestic court’s decision was based on the evidence provided by the parties, namely the applicant, and on an expert assessment that had been requested by the court to estimate the damage suffered. 12. The applicant appealed against the decision before the Supreme Administrative Court, contesting the amount awarded. She argued that the witnesses’ statements and the evidence provided had been wrongly assessed. She also disputed the legality of the first-instance court’s refusal to grant a request she had lodged for the clarification of the expert assessment during the course of the proceedings before the first-instance court. The applicant further complained that the Attorney General’s Office had been allowed to have two contradictory legal positions in the proceedings without suffering any sanction, by making reference to its opinion on her legal aid request during the tort proceedings and the fact that it had disputed the amount she had claimed for pecuniary damage. 13. The Supreme Court judgment was adopted on 23 September and notified to the applicant on 30 September 2010. 14. In its judgment the Supreme Court held that the expert’s opinion had been inconclusive and considered that the amount awarded on that account had not been sufficiently justified. It further noted that the expert’s opinion had been requested under a legal provision which was not applicable to the case at hand. The Supreme Court, therefore, dismissed the expert’s assessment and made a new assessment of the evidence in order to evaluate the extent of the damage suffered by the applicant. With reference to the witnesses’ statements heard and the evidence provided, namely by the applicant, the higher court considered that it could not establish a loss in the amount claimed by the applicant. Thus, the Supreme Court decided that the pecuniary damages should be calculated on the basis of equity (juízo de equidade), taking into account the facts that had been established in the course of the proceedings. Accordingly, it awarded the applicant EUR 9,000 in respect of pecuniary damage, to be paid by the State. 15. At the material time, legal aid was regulated by Law-Decree no. 387-B/87 of 29 December 1987. Requests for legal aid were decided by the judicial authority in charge of the proceedings for which they had been submitted. Pursuant to section 28 the Attorney General’s Office was called upon to submit an opinion on that regard. 16. In judgment no. 287/99.0TABJA-B.E1-A.S1 of 16 December 2010, the Supreme Court considered the possibility of reconciling a discrepancy between two discordant positions of the Attorney General’s Office, when acting in the capacity of a public prosecutor in criminal proceedings. The Supreme Court’s judgment seeking to harmonise the judicial approach to that question (acórdão de fixação de jurisprudência) contains the following passages: “The Attorney General’s Office, which assumes, at any stage of the proceedings, a legal position as to the innocence or guilt of the accused, cannot subsequently modify its position, claiming a better judgment, to the possible detriment of the defendant’s position. ... Consequently it follows, inexorably, that conflicting and contradictory procedural interventions which are not a demand for truth and justice, but derive solely from the need to express subjective opinions, are inadmissible. ... In view of the combined provisions of Articles 48 to 53 and 401 of the Code of Criminal Procedure, the Attorney General’s Office has no interest in appealing against decisions that are consistent with its previously held position in the proceedings.”
| 0 |
test
|
001-159767
|
ENG
|
UKR
|
CHAMBER
| 2,016 |
CASE OF ANDREY ZAKHAROV v. UKRAINE
| 4 |
Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
|
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
|
4. The applicant was born in 1954 and is serving his prison sentence in Gorodyshche Town. Before his arrest he lived with his partner Te. in a privately owned house located in the Rusanovskiye Sady District of Kyiv. 5. The police received intelligence information that a group of people were detaining a man in a privately owned house in Rusanovskyie Sady, and were illegally selling apartments owned by third parties. 6. On 9 February 2004 police officers B., T., and S. entered the applicant’s house and asked whether or not he had any firearms. The applicant showed them a gun and some ammunition which a certain Va. had brought round to his house earlier. The police took the applicant to the police station. The applicant’s arrest was recorded on video. Before the Court the applicant stated, without providing any further details, that during and after his arrest police officers B., T., and S. had subjected him to physical and psychological ill-treatment. 7. According to the Government’s version of events, on the same day the applicant voluntarily, in the presence of investigator Ch., gave a written statement saying that from July to August 2003 he had kept a certain Mr N. in his house at the request of Kr. and Ko. In September 2003 Kr. and Ko. brought Mr V. and Ms Sh. to his house and asked to keep them in the basement. The applicant agreed in return for payment. In November 2003 V. and Sh. died in the basement because of cold. The applicant buried them in his backyard and thoroughly cleaned the basement. 8. In his first letter to the Court, the applicant stated, without providing further details, that police officers T. and B. and investigator Ch. had forced him into making the above self-incriminating statement by means of physical and psychological pressure. In his application form, the applicant stated that he had not written the above statement and did not know who had written it. 9. On 10 February 2004, during reconstruction of events which was conducted by investigator Ch. and recorded on video, the applicant showed where he had buried V. and Sh., and the police sent their bodies for forensic examination. The experts established that the victims had died of cold in November 2003. 10. On the same day investigator Ch. ordered the applicant’s detention, and instituted criminal proceedings against him on suspicion of having illegally stored a firearm and concealed the deprivation of liberty and death of two people. The applicant’s defence rights were explained to him, and he expressed a wish to have a lawyer. 11. On 11 February 2004 investigator Ch. appointed a lawyer, R., under legal aid scheme to act as the applicant’s defence counsel. Upon being questioned by Ch. on 11 and 12 February 2004 in the presence of that lawyer, the applicant confirmed his previous statements. He also said that he had been aware that V. and Sh. had been put in his basement in order to prevent them from hindering the illegal sale of their apartments. 12. On 13 February 2004 the Dniprovskyy District Court of Kyiv ordered the applicant’s detention pending trial. On the same date a medical doctor examined the applicant and found no injuries on his body. The applicant did not raise any complaints of ill-treatment or his health condition. 13. On 20 February 2004 investigator Ch. charged the applicant with murdering Sh. and V. 14. On the same date the applicant was questioned in the presence of lawyer R. and confirmed his previous statements. 15. On 17 May 2004 the applicant had a formal confrontation with Kr. in the presence of R. The applicant confirmed his previous statements. 16. On 3 June 2004 investigator Ch. appointed another lawyer, K., under legal aid scheme as the applicant’s defence counsel instead of R. The latter was no longer able to perform his duties as a defence lawyer because of illness. 17. On the same date the applicant was questioned in the presence of lawyer K. and denied all the statements he had given earlier. He stated that he had given self-incriminating statements previously because he had been in a state of “shock”. 18. On 6 July 2004 investigator Ch. instituted criminal proceedings against the applicant for having participated in the fraudulent sale of the apartments belonging to Sh. and V. 19. On an unspecified date the applicant complained to Ch. that during and after his arrest he had been ill-treated by police officers B., T., and S. It is unclear whether the applicant provided any details about such ill-treatment because a copy of the complaint available to the Court is unreadable. 20. On 11 July 2004 investigator Ch. questioned B., T., and S., who denied that they had put the applicant under any pressure. 21. On 13 July 2004 Ch. refused to institute a criminal investigation into the applicant’s allegations of ill-treatment and the applicant did not appeal against that decision. A copy of the decision is available to the Court, but is unreadable. On the same date Ch. refused the applicant’s request to have a formal confrontation with his girlfriend, Te. Later that day, the applicant absconded from the detention facility where he was being held, but was found by the police and brought back to the facility on the same date. 22. On the same day, the police instituted criminal proceedings against the applicant for absconding. 23. On an unspecified date the police questioned Pl., who worked as a doctor in a hospital in the town of Svetlovodsk. Pl. said that N. had been admitted to the hospital in the autumn of 2003. N. had told Pl. that he had been the victim of fraud, and that his apartment in Kyiv had been sold without his knowledge or consent. 24. On an unspecified date the police questioned Ru., who said that in the summer of 2003 he had sold his house to a woman called Olya. N. had lived in that house and had told Ru. that he had been the victim of fraud. 25. The applicant asked the investigator if he could have a formal confrontation with a certain Ro., but this request was refused. 26. On 5 August 2004 the investigator appointed another lawyer, V., to act as the applicant’s defence counsel under legal aid scheme instead of lawyer K. The reason for that decision remains unknown. On 8 September 2004 the pre-trial investigation was completed, and the applicant studied all the material in the criminal file. 27. The indictment stated that a group of people, including Kr., had asked the applicant to keep N. in his house while N.’s apartment had been sold without his knowledge or consent. The applicant had agreed in return for payment, and had kept N. in his house for about a month. After that, the same group of people had asked the applicant to keep V. and Sh. in his basement in order to prevent them from hindering illegal sale of their apartments. V. and Sh. had died of cold in the basement, and the applicant had buried them in his yard. The apartments of N. and V. had been sold while they had been kept in the applicant’s house. The apartment belonging to Sh. had been sold before she had been brought to the applicant’s basement. According to the indictment, by holding N., V., and Sh. in his house, the applicant, acting jointly with others, participated in fraud entailing the illegal sale of the victims’ apartments. 28. On 2 February 2005 a TV channel transmitted a programme called “Black Square”. According to the applicant, in that programme an investigator dealing with his criminal case spoke about his arrest and “persuaded the public” that the applicant was guilty as charged. Neither a recording of that programme, nor any further information about its contents was made available to the Court. 29. On 3 February 2005 the Kyiv Court of Appeal, composed of two professional judges and three lay judges and acting as the first-instance court in the applicant’s case, commenced the trial. 30. On 8 February 2005 the court appointed Krav. as the applicant’s lawyer under legal aid scheme instead of lawyer V. The grounds for that decision remain unknown. 31. Before the court, the applicant stated that when he had been detained by the police “his head had not been working” because he had been drunk. After the arrest, he had drunk some vodka given to him by the police, and that was why he did not remember what he had said or done from 9 to 11 February 2004. He “was not sure” that he had written the self-incriminating statement on 9 February 2004. Investigator Ch. had promised to charge him with only the offence of concealment if he admitted that he had kept V. and Sh. in his basement. Actually, V., Sh., and N. had voluntarily stayed in his house and none of them had been forcefully held in the basement. In November 2003 Sh. and V. had drunk too much vodka, had fallen asleep in one of the rooms of his house, and had died of cold. He did not know that the victims’ apartments had been sold without their consent. He had been afraid of the police and for that reason he had not reported the deaths of V. and Sh. and had buried them in his yard. After his arrest the police officers had not beaten him. 32. The court questioned investigator Ch. in the applicant’s presence and the latter asked him questions. Ch. stated that the applicant had not been drunk on the day of his arrest and the police had not given him any alcohol from 9 to 11 February 2003. Ch. denied that he had subjected the applicant to any pressure or promised to charge him with only the offence of concealment. 33. The court questioned experts who had examined the bodies of V. and Sh. and the applicant’s lawyer asked them questions. The experts stated that they could not exclude the possibility that V. and Sh. had died of cold while they had been asleep in one of the rooms of the applicant’s house. They said that it was also possible that they had died in the basement. 34. On 17 March 2005 Ro. was questioned by the court in the applicant’s presence and stated that he had seen V., still alive, in the applicant’s basement, and had heard how V. had asked the applicant to release him. Later, Ro. had seen V.’s dead body in the applicant’s basement. Ro. had met N. in the applicant’s house on several occasions, and N. had told him that a group of people intended to “sell” him, and were keeping him in the applicant’s house. The applicant asked Ro. questions during the hearing and received answers. 35. Upon being questioned by the court, N. stated that in July 2003 certain “Olya” and “Volodya” had taken some of his documents, had brought him to the applicant’s house and had left him there until the end of August 2003. The applicant had not allowed him to leave the house and had told N. that he had had a gun. While N. had been staying in the applicant’s house he had observed the applicant, Olya, Volodya, and Kr., and had concluded that they had been acting as an organised group and had intended to sell his apartment without his consent. In August 2003 Olya had moved N. to the house which she had bought from Ru. In September 2003 Volodya and Olya had placed N. in a hospital in the town of Svetlovodsk. From there, N. had called his relatives in Kyiv and had learned that his apartment in Kyiv had been sold. He had then returned to Kyiv and had complained to the police. When N. had returned to the building where his apartment was located, the neighbours had told him that several people had been moving his furniture out of the apartment. They had described one of those people and N. had understood that it had been the applicant. The applicant was present during N.’s questioning by the court and asked him questions. 36. On 31 March 2005 the court questioned the applicant’s girlfriend, Te., in the applicant’s presence. She stated that N. had been living in the applicant’s house for about a month because he had been “having a rest” there. She further stated that a man and a woman had been locked in the basement of the applicant’s house against their will. The people who had brought N. to the applicant’s house had instructed Te. not to allow him to leave the house and not to talk to him about the apartment. She had been told that N.’s apartment was being sold in accordance with his wishes, but she had understood that, in fact, he had not known that the apartment was being sold. Once, the applicant had brought various pieces of furniture to the house and had explained Te. that the furniture belonged to N. Kr. had visited the applicant and had brought him food and money for feeding V., Sh., and N. 37. On 8 April 2005 the applicant asked the court to recall Te. as witness so that he could question her again. That request was granted, however, Te. did not appear before the court because the police could not find her at her permanent place of residence. 38. Kr. stated before the court that he had brought N., a man and a woman to the applicant’s house, where they had voluntarily stayed. In the autumn of 2003 the applicant had informed Kr. that the man and the woman had died in one of the rooms of his house and he had moved their bodies to the basement. Kr. had helped the applicant to carry two dead bodies from the basement to the yard and to bury them. 39. The applicant asked the court if he could call and question Pl. and Ru., because, according to him, their statements contradicted those of N. The request to call Pl. was granted but Pl. refused to appear before the court stating that he was too busy with his work in the Svetlovodsk hospital. The request to call and question Ru. was not granted by the court. The applicant requested (unsuccessfully) that the court order a forensic examination of his basement, such an examination being aimed at establishing whether or not V. and Sh. had indeed spent several weeks there. 40. On 25 May 2005 the Kyiv Court of Appeal convicted the applicant of having forcefully held N., V., and Sh. in his house, an action which led to the deaths of V. and Sh. The court also found the applicant guilty of absconding from detention facility, illegal storage of firearms and participating in the fraudulent sale of the apartments belonging to N. and V. The applicant was sentenced to fifteen years of imprisonment. On the same date the lawyer Krav. stopped representing the applicant for unknown reasons. In his observations submitted in reply to those of the Government, the applicant stated that he had unsuccessfully lodged requests for the appointment of a lawyer to represent him before the Supreme Court. The case file does not contain copies of any such requests. 41. On 11 August 2005 the applicant appealed against his convictions. He stated that the trial had not been objective or fair, and that the first-instance court had misinterpreted the facts of the case, and had refused to call witnesses proposed by him. Ru. and Pl. had not been questioned at a court hearing, although their statements contradicted those of N., while the statements of Te. and Ro. contained contradictory and false information. His request for examination of his basement had also been refused. 42. On 22 December 2005 the Supreme Court upheld the applicant’s convictions and sentence, having found no irregularities in the first-instance court’s decision. 43. On 7 June 2006 the applicant sent his first letter to the Court. On 29 August 2006 he submitted a duly signed and completed application form. On 29 September 2006 and 21 March 2007 the Court asked the applicant to provide a copy of his cassation appeal, and copies of his complaints concerning the alleged ill-treatment by the police. The applicant asked the Kyiv Court of Appeal to send those documents to him, but on 14 May 2007 that request was refused on the ground that the law did not empower the applicant to obtain copies of case documents after the conclusion of criminal proceedings. 44. On 24 January 2008 the Kyiv Court of Appeal sent the applicant the copies which he had requested (see paragraph 43 above). 45. In October 2011 the applicant requested the same court to send him various materials from his case file, in particular, all the courts’ decisions, reports of medical experts and copies of all the statements and requests which the applicant had made during the criminal proceedings. The applicant stated, without elaborating further, that he needed those documents to “substantiate his complaints” before the Court. On 18 November 2011 the Kyiv Court of Appeal refused the applicant’s request on the same grounds as on 14 May 2007. 46. Before the Court the applicant stated that the services provided to him by his lawyers had been of low quality. They were not interested in his case because he did not have any money to pay them. 47. According to the applicant, the conditions of his detention at the pre-trial detention facility (ITT) in which he was detained for three periods between 9 February and 27 July 2004 were inhuman and degrading.
| 1 |
test
|
001-163655
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF BIRULEV AND SHISHKIN v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
|
5. The first applicant was born in 1978 and lives in Tsentrelnye Koryaki in the Kamchatka Region. 6. On 20 June 2005 at approximately 3.30 a.m. he was arrested by traffic police while driving a vehicle which had been declared stolen earlier in the evening, and was taken to the local police station. 7. On the same day at 3.00 p.m. he gave a confession statement. 8. Later on at approximately 6.00 p.m. a record of his arrest was drawn up. This document indicated that he had been apprehended at 6.00 p.m. by an investigator, Mr S. 9. On 22 June 2005 the Yelizovskiy District Court (“the District Court”) authorised the first applicant’s detention. The court found that there were grounds to believe that he would abscond, because he was suspected of having committed an offence punishable by more than two years’ imprisonment, was unemployed and without any source of income, and did not reside at his official address. It further referred to the risk that the first applicant might continue his criminal activities on the grounds that, having been released on parole on 17 June 2005, he had been apprehended three days later on suspicion of an offence similar to that for which he already had a conviction. 10. On 29 June 2005 the first applicant was charged with theft. 11. On 19 July 2005 the detention order of 22 June 2005 was upheld on appeal. 12. By a judgment of 1 March 2006, upheld on appeal on 2 May 2006, the District Court convicted the first applicant as charged and sentenced him to ten years’ imprisonment. 13. The second applicant was born in 1976 and lives in Vladimir. 14. On 10 April 2005 Ms F. complained of having been raped by three unidentified individuals. 15. A criminal investigation into the rape was opened at 12 noon on 11 April 2005 and the second applicant was apprehended on the same day. He and the Government provided differing versions of how he was arrested. 16. According to the second applicant, at around 12 noon he was stopped in the street by police and escorted to the local police station. Between 12.25 p.m and 12.33 p.m. he took part in an identification parade, as a result of which he was identified by the victim as one of the individuals who had raped her. Between 3.10 p.m. and 4.20 p.m. he was questioned by an investigator. A record of his arrest was not drawn up until 11.35 p.m. 17. According to the Government, the second applicant was taken to the police station as a witness. They have provided no indications as to when he was taken there or why he was considered to be a witness for the purposes of the investigation. The Government further claimed that the second applicant was interviewed as a witness between 3.10 p.m. and 4.20 p.m., and that the identification parade during which he was identified by the victim took place between 10.25 p.m. and 10.33 p.m. At 11.25 p.m. he was arrested as a criminal suspect and ten minutes later an arrest record was drawn up. 18. During the above procedures, the second applicant waited in different offices of the police station. Had he tried to leave, he would have been stopped by the police officers who were standing guard at the doors of the offices. As soon as the record of arrest was compiled, he was incarcerated. 19. At 6.25 p.m. on 13 April 2005 the Gus-Khrustalnyy Town Court of the Vladimir Region (hereinafter “the Town Court”) remanded the second applicant in custody on the basis of Article 108 of the Russian Code of Criminal Procedure (hereinafter “the CCrP”) (see paragraph 34 below). It found that he was suspected of having committed a serious criminal offence, had been identified by the victim, had escaped from the scene of the crime, did not work and had a recent criminal record, and that for those reasons he might abscond, reoffend, influence the victim and the other parties to the proceedings, destroy evidence, or otherwise obstruct the proper administration of justice. The Town Court did not address the second applicant’s allegation that he had been unlawfully detained for more than forty-eight hours without judicial authorisation. 20. On 15 April 2005 the second applicant appealed. Among other things, he complained that his detention was unlawful, on the grounds that he had been brought before a judge more than forty-eight hours after his actual arrest and the Town Court had not established any “exceptional circumstances”, as required by the CCrP in order to place a suspect in detention (see paragraph 33 below). 21. On 16 May 2005 the Vladimir Regional Court (“the Regional Court”) upheld the order of 13 April 2005. It considered that the second applicant had been apprehended as indicated in the arrest record. It further found that the Town Court had based its decision on sufficient grounds. Lastly, as regards his argument concerning the absence of “exceptional circumstances”, the Regional Court held as follows: “The exceptional nature of remanding a criminal suspect in custody implies that he must be charged not later than ten days from the time of his arrest. Otherwise, he should be immediately released.” 22. In the meantime, on 19 April 2005 the second applicant was charged with aggravated rape. 23. On 20 December 2005 the Town Court found him guilty as charged and gave him a custodial sentence. 24. On 3 March 2006 the Regional Court upheld the judgment on appeal. 25. Between 20 April 2005 and 22 March 2006 the second applicant was held in Vladimir Prison T-2 in connection with the criminal proceedings against him. He submitted that the facility had been severely overcrowded and in an appalling sanitary condition. The detainees did not have access to fresh air, sunlight or drinking water.
| 1 |
test
|
001-175973
|
ENG
|
AZE
|
COMMITTEE
| 2,017 |
CASE OF BABAYEV AND HASANOV v. AZERBAIJAN
| 4 |
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
|
André Potocki;Mārtiņš Mits
|
5. The applicants’ dates of birth and places of residence are given in the Appendix. 6. At the material time the first applicant was a member of the youth committee of an opposition party, the Popular Front Party of Azerbaijan (Azərbaycan Xalq Cəbhəsi Partiyası – “the PFPA”), and the second applicant was a chairman of a youth organisation called Azad Genclik. 7. Both applicants participated in a number of unauthorised peaceful demonstrations organised by the opposition. In the course of many of those demonstrations, they were arrested and convicted. In particular, the first applicant was arrested during the demonstrations on 15 May, 19 June and 31 July 2010. 8. The number of opposition demonstrations increased in 2011. That tendency continued into the following years. Demonstrations were held, inter alia, on 11 March 2011 and 20 October and 17 November 2012. 9. The second applicant attended the demonstrations of 11 March 2011 and 20 October 2012. The first applicant attended the demonstrations of 20 October and 17 November 2012. 10. According to the first applicant, he also intended to participate in the demonstration of 11 March 2011. Moreover, he was actively promoting public participation in that assembly on online social networks. 11. It appears that the organisers of the demonstration of 11 March 2011 gave no proper prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). Information about the assembly was disseminated through Facebook or the press. 12. Prior to the demonstrations of 20 October and 17 November 2012, on 15 October and 12 November 2012 respectively the organisers had given notice to the BCEA. 13. The BCEA refused to authorise the demonstration of 20 October 2012 at the site indicated by the organisers and proposed another location on the outskirts of Baku the grounds of a driving school situated in the 20th habitable area of the Sabail District. 14. The BCEA also refused to authorise the demonstration of 17 November 2012. It noted in general terms that that assembly would not be in accordance with the Law on Freedom of Assembly. The BCEA further noted that the square where the organisers proposed to hold the assembly was a designated public leisure area and that the assembly itself would be impractical. 15. The organisers nevertheless decided to hold the demonstrations as planned. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants were demanding democratic reforms in the country and free and fair elections, and protesting against impediments on freedom of assembly. 16. On 4 March 2011 the first applicant was arrested and brought to police station no. 22 of the Nasimi district police office. 17. According to the official records, he was arrested because at around 11.20 a.m., in front of the National Bank in Baku, he had disobeyed a lawful order of the police to stop speaking loudly on a mobile phone and to stop using foul language. He also swore at the police officers and tried to run away when being arrested. 18. The applicant contested the official version of his arrest. He stated that he had been arrested in an Internet café by three persons in plain clothes who had failed to present themselves or give reasons for the arrest. They had taken his belongings from the Internet café, including his mobile phone. He had been pushed into an unmarked car. There one of the persons who had arrested him had presented himself as a police officer and shown a police badge. The other two had presented themselves as agents of the Ministry of National Security, without showing any supporting document. He had been told that the arrest had been in connection with the demonstration of 11 March and another protest planned to be held on 12 March 2011. 19. At the police station an administrative-offence report (inzibati xəta haqqında protokol) was issued in respect of the applicant, setting out the charges against him. The report stated that the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”) (failure to comply with a lawful order of a police officer). 20. According to the applicant, he was never served with a copy of the administrative-offence report or with other documents from his case file. He was also not given access to a lawyer after his arrest or while he was in police custody. 21. On the day of his arrest the applicant was brought before the Nasimi District Court, which on the same day adopted a decision on the merits. 22. According to the applicant, he was not given an opportunity to appoint a lawyer of his own choosing. A State-funded lawyer (Mr O.A.) was appointed to assist him. 23. According to the transcript of the first-instance court’s hearing, Mr O.A. did not make any oral or written submissions. 24. In his statement before the court the applicant contested the police officers’ version of events and argued that he had been arrested unlawfully. The court disregarded that statement as non-reliable. 25. Only the police officers who, according to the official records, had arrested the applicant and the police officer who issued the administrativeoffence report in respect of him were questioned as witnesses. In their statements those police officers reiterated the official version of the reasons for the applicant’s arrest (see paragraph 17 above). 26. The court found that the applicant had committed the administrative offence attributed to him (see paragraph 17 above). It convicted the applicant under Article 310.1 of the CAO and sentenced him to ten days’ administrative detention. 27. According to the applicant, until 6 March 2011 his whereabouts were unknown to his family and friends. 28. Only on 7 March 2011 was a lawyer hired by his family able to meet the applicant and to learn the details of his arrest, detention and the court proceedings against him. 29. On an unspecified date the applicant lodged an appeal with the Baku Court of Appeal, presenting his version of the events surrounding his arrest, and arguing that he had been arrested in connection with the demonstration scheduled for 11 March 2011. The applicant also complained that the hearing before the first-instance court had not been fair. 30. In addition, he applied to the appellate court to have examined his mobile-phone call records in respect of the date and time of the alleged administrative offence. 31. The applicant was represented before the Baku Court of Appeal by a lawyer of his own choosing. 32. On 19 March 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that the conclusions reached by that court had been correct. 33. The appellate court did not address the applicant’s above-mentioned request to have his mobile-phone call records examined. 34. As mentioned above, the demonstration of 11 March 2011 was attended by the second applicant, the demonstration of 20 October 2012 by both applicants, and the demonstration of 17 November 2012 by the first applicant. 35. All three demonstrations were dispersed as soon as the protesters began to gather. Both applicants were arrested during the dispersal operations and after each arrest were taken to police station no. 9 of the Sabail district police office. 36. According to the applicants, during the dispersal of the demonstrations of 20 October and 17 November 2012 they were arrested by individuals in plain clothes. 37. On the day of each of the applicants’ respective arrests, administrative-offence reports were issued in respect of them. In each case the applicants were charged with an administrative offence under Article 310.1 of the CAO. Following their arrest on 20 October 2012 the applicants were additionally charged under Article 298 (violation of rules on holding public assemblies) of the CAO. 38. According to the applicants, they were never served with a copy of the administrative-offence reports or with other documents from their case files. They were also not given access to a lawyer after their arrests or while they were in police custody. 39. The applicants were brought before the Sabail District Court on the day of each arrest (specifically, the first applicant on 20 October and 17 November 2012, and the second applicant on 11 March 2011 and 20 October 2012). 40. According to the applicants, the respective hearings before the firstinstance court were very brief. Members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearings to the public. 41. According to the applicants, they were not given an opportunity to appoint lawyers of their own choosing. 42. A State-funded lawyer was appointed to defend the applicants at each hearing. 43. According to the transcript of the hearing of 11 March 2011, in his oral submissions the State-funded lawyer for the second applicant (Mr V.M.) briefly asked the court to consider the young age of the applicant and his sincere regret for having committed the administrative offence. 44. None of the material submitted to the Court contains any record showing that at the hearings of 20 October and 17 November 2012 respectively the State-funded lawyer for the second applicant (Mr K.B.) or the State-funded lawyer for the first applicant (Mr Z.A.) made any oral or written submissions on behalf of the applicants. 45. According to a statement (“ərizə”) signed by the first applicant, he refused the assistance of the State-funded lawyer at the hearing of 20 October 2012 and decided to defend himself in person. 46. The only witnesses questioned during the hearing of 11 March 2011 concerning the second applicant were police officers who, according to official records, had arrested him. They testified that together with some other people the applicant had attempted to hold an unlawful demonstration and continued to protest despite the order to disperse. During the hearings of 20 October 2012 and 17 November 2012 the court did not question any witnesses. 47. In each case the Sabail District Court found that the applicants had failed to stop participating in an unauthorised demonstration. The court convicted the applicants under Article 310.1 of the CAO. In the proceedings related to his participation in the demonstration of 20 October 2012 the second applicant was also convicted under Article 298 of the CAO. The applicants were sentenced to various periods of administrative detention (see Appendix). 48. On unspecified dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions had been in violation of their rights, because the protest in which they had participated had been peaceful. The applicants also complained that their arrests had been unlawful, and that the hearings before the first-instance court had not been fair. They asked the Baku Court of Appeal to quash the first-instance court’s decisions in their respective cases. 49. The first applicant was assisted by a lawyer of his own choosing in each case before the Baku Court of Appeal. The second applicant was assisted by a lawyer of his own choosing during the appellate-court proceedings related to his participation in the demonstration of 20 October 2012, but he was not represented by a lawyer during the appellate-court proceedings related to his participation in the demonstration of 11 March 2011. 50. On various dates the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance court (see Appendix).
| 1 |
test
|
001-175155
|
ENG
|
LVA
|
COMMITTEE
| 2,017 |
CASE OF OZOLS v. LATVIA
| 4 |
No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Obtain attendance of witnesses)
|
André Potocki;Mārtiņš Mits
|
4. The applicant was born in 1970 and lives in Riga. 5. In 2000 a criminal investigation was conducted into suspected irregularities in customs procedures with respect to the transit of vehicles. As a result of these unlawful activities, it had been possible for third persons to legalise foreign goods (the vehicles) in Latvia using falsified documents. 6. Seven customs officials, including the applicant, were charged with exceeding their official powers or failing to fulfil their duties. Each of the officials had allegedly acted unlawfully at different stages of the customs procedures. The applicant was charged with negligence which had caused substantial harm to the State and public interest. This charge was brought in connection with the processing of documentation for a used semi-trailer. 7. Several witnesses were questioned during the pre-trial stage, including witness E.A., a Latvian national residing in Latvia, who had purchased one of the vehicles. 8. On 16 December 2005 the Riga Regional Court, acting as the court of first instance, found the applicant guilty and imposed on him a fine to the amount of five minimum monthly salaries. 9. With respect to the applicant, the court established that on 31 March 1999 at a customs control point he had acted contrary to the applicable regulations in the processing of documentation for the importation of the used semi-trailer. 10. In particular, the applicant had accepted a transit declaration from a person who had not been a declarant’s authorised representative. He had not verified whether the person submitting a power of attorney had been the person to whom it had been issued. The applicant had not verified whether the used semi-trailer had been in the customs zone. Further, he had not issued an administrative violation record on the non-compliance with the forty-eight hour time-limit for the delivery to the customs office of the used semi-trailer. Furthermore, the documentation processed had been incomplete. 11. The regional court relied on a report drawn up by the State revenue service, dated 24 March 2000. The report stated that the applicant had not complied with a number of applicable regulations. 12. Further, the court referred to the pre-trial statement of witness E.A. who was summoned to a court hearing but could not attend due to his hospitalisation. The court took note of a medical certificate to that effect. 13. E.A. had testified that he had purchased the semi-trailer at the beginning of 1999. He had come to the customs control point together with the vendor’s representative. The vendor’s representative had turned first to a customs representative and then to a customs officer who processed the documentation. The semi-trailer had not been at the customs warehouse and it could not have been inspected by the customs officer. According to the documentation, the customs clearance of the vehicle was carried out by the applicant. After the statements were read out, the applicant’s defence asked the court to explain on what grounds a certified copy of the statements of E.A. was included in the case-file and where was its original. The request was upheld and the prosecutor provided a reply. 14. The court relied on a set of documentary evidence attesting to the fact that the documentation for the semi-trailer in question had been processed by the applicant and that the semi-trailer had not entered the customs territory. 15. The applicant appealed against the first instance court judgment. 16. At the appellate hearing on 8 January 2007, E.A. could not be summoned to the hearing because he was abroad at the time. The applicant requested that E.A. be summoned to the appeal proceedings. 17. The appellate court decided that this request be granted and E.A. was summoned to the hearings of September 2007 and February 2008. On both occasions E.A. asked the appellate court in writing to excuse his absence from the hearing on the grounds of hospitalisation (in September 2007) and his being abroad and having a technical problem with a car which had prevented him from coming to the hearing (in February 2008). He further asked the court to read out his pre-trial statements. 18. On 11 February 2008 the appeal proceedings were resumed. 19. During the court hearing, the applicant’s defence and the court questioned a defence witness – a customs expert on the customs procedure and its application. 20. E.A. did not appear at the court hearings on 11 and 12 February 2008. The prosecutor submitted that, by way of such conduct, E.A. avoided appearing in court and that this gave grounds for his testimony to be read out. 21. The applicant’s defence counsel disagreed that E.A.’s testimony could be read out. At the same time, the defence counsel submitted that he “[did] not need witness [E.A.] anymore ... the evidence [previously] given by the expert [was sufficient]. We do not uphold the request anymore. I consider that his statements should not be read out... I consider that there are no justifiable grounds for [E.A.] not appearing in court”. 22. The appellate court ruled that E.A.’s testimony be read out in accordance with section 501 of the Criminal Procedure Law. 23. After the testimony was read out, the applicant’s defence explicitly stated that they did not have any requests and that the court adjudication could be terminated. 24. On 15 February 2008 the appeal court upheld the applicant’s conviction. It considered that the applicant had inadequately verified the power of attorney (see paragraph 10 above). 25. The appellate court referred to the evidence of witness E.A., i.e., that the semi-trailer had not been at the customs warehouse and the customs officer could not have inspected it. It also relied on the logbook indicating that the semi-trailer had not entered the customs territory. The court also relied on the applicant’s statements in which he considered that the verification on the merits had been carried out by the customs broker and therefore those tasks fell outside his duties. The appeal court dismissed the applicant’s contention that he had inspected the semi-trailer. 26. Furthermore, the appeal court held that the applicant had inadequately verified the payment documents. It reasoned that the payment orders in question had given the appearance that a transfer of funds had been made to the State. However, a bank report indicated that these orders had neither been registered nor confirmed by the bank. 27. The appeal court found that the applicant had formally performed his official duties. However, it deemed that the applicant’s contention – that a customs broker and not a customs officer had been responsible for the truthfulness of the information – indicated that, in fact, the applicant had not verified anything. 28. In his appeal on points of law the applicant argued that the appellate court had not ensured the attendance of E.A. He insisted that the evidence attested to the fact that he had verified the power of attorney and had compared the bank accounts indicated in the payment orders. No electronic database had existed at the time and the only way to check the payment documents had been to compare the bank accounts listed. 29. On 1 July 2008 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law. 30. It reasoned that the appellate court had verified the testimonies of witnesses in accordance with section 501 of the Criminal Procedure Law. Also, the appeal court had made efforts to establish E.A.’s whereabouts and to bring him to court. Therefore, the appeal court had done everything possible in order to call E.A. to court. 31. This decision was final.
| 0 |
test
|
001-152446
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,015 |
MALINEN v. FINLAND
| 4 |
Inadmissible
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
|
1. The applicant, Mr Marko Antero Malinen, is a Finnish national who was born in 1978 and lives in Hyvinkää. He was represented before the Court by Mr Jaakko Tuutti, a lawyer practising in Tampere. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is in prison. On 25 November 2011 a letter sent to the applicant was withheld by the prison authorities on the basis of Chapter 12, section 5, of the Prison Sentences Act on suspicion that it contained drugs. The letter was sent to the police for further investigation. The applicant was informed about the withholding of the letter on the same day. According to the established prison practice, the withheld letter was either given to the applicant to read or it was read to him. 5. On 30 December 2011 the police found that no crime had been committed as they could find only a very small amount of possible traces of drugs in the letter using the means at their disposal. For this reason, as well as for expediency and cost-effectiveness, the police decided not to forward the letter to a forensic laboratory for further testing but returned it to the prison. 6. The prison decided to withhold the letter still as it had not been examined properly. The applicant was informed that he would receive the letter only upon his release. 7. On an unspecified date the applicant sought rectification of the prison director’s decision of 25 November 2011 to withhold his letter. 8. On 16 January 2012 the Criminal Sanctions Agency (rikosseuraamusvirasto, brottspåföljdsverket) refused his application finding that, according to domestic law, mail sent or received by a prisoner could be withheld, inter alia, in order to prevent danger or to protect safety in prisons. Such mail was to be returned to the sender or given to the prisoner upon release. 9. By letter dated 6 February 2012 the applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the prison director’s decision be quashed. Interpretation of the domestic provisions in accordance with fundamental rights should have led to the use of alternative, less restrictive means. As no traces of drugs had been found, the letter or a copy of it should have been given to the applicant. 10. On 13 March 2012 the Administrative Court, by a final decision, rejected the applicant’s appeal. It found that the withholding of the applicant’s letter had been necessary in order to prevent danger and crime in the prison. The letter had been singled out by a sniffer dog, which had led to a strong suspicion of the presence of drugs. In such a situation the domestic law did not oblige the prison authorities to give a copy of the withheld letter to a prisoner. 11. On 4 November 2013 a copy of the letter was given to the applicant. 12. According to Article 10 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999), the secrecy of correspondence, telephony and other confidential communications is inviolable. Provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty, may be laid down by an Act. 13. According to Article 7 of the Constitution, the rights of individuals deprived of their liberty shall be guaranteed by an Act. The rights of convicted prisoners and pre-trial detainees and the necessary restrictions on these rights are regulated by the Prison Sentences Act and the Detention Act. 14. Chapter 12, section 1, subsection 1, of the Prison Sentences Act (vankeuslaki, fängelselagen, Act no. 767/2005) provides that a prisoner has the right of correspondence. Any sealed letter or other mail destined for the prisoner or sent by the prisoner may be checked by X-ray or by similar methods without opening the mail, in order to examine whether it contains prohibited substances or objects referred to in Chapter 9, section 1, subsection 1 or 2, of the Act. 15. Chapter 12, section 5, of the Act provides that a letter, mail or message sent by or destined for a prisoner may be withheld, if the withholding is necessary for the prevention or solving of crime, prevention of disorder in the prison or for the safety of the detainee or other persons. The recipient or the sender shall be immediately informed about the withholding and the reasons for it. A letter, mail or message which has not been delivered shall be returned to the sender or given to the prisoner upon release.
| 0 |
test
|
001-174814
|
ENG
|
MKD
|
CHAMBER
| 2,017 |
CASE OF PETROVIĆ v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
|
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
|
6. On 11 December 2002 the applicant instituted proceedings for restitution of a hotel in Skopje which had been confiscated from his predecessor in 1948. On 7 June 2004 a commission responsible for such matters within the Ministry of Finance dismissed the applicant’s claim. On 27 July 2004 he appealed. On 16 November 2004 a second-instance commission set up within the Government dismissed his appeal. Subsequently, the case went back and forth several times between the administrative bodies and courts at two levels of jurisdiction. The proceedings are currently pending before the Higher Administrative Court, awaiting a decision on an appeal by the applicant of 26 January 2016 against a judgment of the Administrative Court. 7. On 3 July 2014 the applicant applied to the Supreme Court for a ruling that the length of the restitution proceedings had been excessive, to award him compensation and set a three-month time-limit for the court dealing with his case to decide on his restitution claim. 8. By letters dispatched between 8 July 2014 (received on 3 September 2014) and 20 January 2015, the Supreme Court requested the case file from the Administrative Court. The case file, which was with the administrative bodies, was forwarded to the Supreme Court on 13 February 2015. 9. On 28 April 2015 the first-instance panel of the Supreme Court found that the relevant period to be taken into consideration had started to run on 16 November 2004 (see paragraph 6 above). It further established that the case had not been complex and that there had been no delays attributable to the applicant. It concluded that there had been a violation of the applicant’s right to a hearing within a reasonable time and awarded him the equivalent of 810 euros (EUR) in compensation. 10. By a letter of 3 June 2015 (received on 10 August 2015), the Supreme Court asked the Ministry of Justice to provide assistance in delivering its decision because the applicant lived in Serbia. Between 25 August and 21 December 2015, the Ministry of Justice of the respondent State asked, on three occasions, that the relevant Ministry in Serbia serve the Supreme Court’s decision on the applicant. By a letter of 28 December 2015 (received on 10 March 2016), the Ministry of Justice of Serbia informed the relevant Ministry of the respondent State about the date of service of the Supreme Court’s decision to the applicant. 11. In an appeal against the Supreme Court’s decision of 28 April 2015, the applicant complained that it had taken too long for that court to decide on his application. He referred to section 36(4) of the Courts Act, which required the Supreme Court to decide on a length of proceedings remedy within six months (see paragraph 14 below). He also complained that the amount of compensation awarded to him had been too low. 12. On 21 March 2016 the second-instance panel of the Supreme Court ruled partly in favour of the applicant. It endorsed the findings of the first-instance panel regarding the complexity of the case and that no delays were attributable to the applicant, found that the proceedings had lasted for ten years, five months and twelve days and set compensation at the equivalent of EUR 1,050.
| 1 |
test
|
001-156549
|
ENG
|
LVA
|
ADMISSIBILITY
| 2,015 |
O.G. v. LATVIA
| 4 |
Inadmissible
|
Guido Raimondi;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev
|
1. The applicant is a Latvian national, who was born in 1965 and lives in Riga. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3). The applicant was granted permission by the President of the Section to represent himself in the proceedings before the Court. 2. At around 7 p.m. on 9 August 2012 the applicant took a trolleybus without purchasing a ticket; he attempted to purchase one only after ticket inspectors had entered the trolleybus. When they ordered him to pay a fine, he stamped on one of the ticket inspector’s feet and kicked her legs, before grabbing both inspectors by their necks. When the driver stopped the trolleybus and approached the applicant, the latter started hitting him with his umbrella. At that point the police arrived and took the applicant to the police station, where he arrived at 7.10 p.m. 3. At the police station the applicant continued behaving aggressively: he tried to attack police officers, uttered threats and said that he had robbed the President of Latvia. The police sought the assistance of the Emergency Medical Service, which took the applicant to Riga psychiatric hospital (VSIA“Rīgas psihiatrijas un narkoloģijas centrs”) at about 8 p.m. 4. At 8.25 p.m. the applicant was examined and Dr L.S. noted that he was in a state of psychomotor agitation and was “not accessible for productive contact”. He was administered appropriate medical treatment. 5. At 9 a.m. the following day, 10 August 2012, the applicant and his medical file were examined by a panel of three doctors in order to establish whether there were grounds to prescribe involuntary psychiatric treatment. None of the doctors had been involved in assessing the applicant’s state of health on 9 August 2012. 6. The applicant’s behaviour during the interview with the panel of doctors was reported as follows: “No symptoms of unclear consciousness. Not accessible for productive contact. Answers questions with counter-questions. Behaves in an expressive, defiant way. Suspicious. Asks what drugs have been given, who has allowed [him] to be given drugs without his agreement. Does not explain his actions [in the police station and against the ticket inspectors]. Denies having said that he has robbed the president. Says that “everything will be alright”. Refuses to [give consent to being treated in the psychiatric hospital]. Thinking is confused, inconsistent. Gives an impression that [he] is listening to what is happening around him. Patient is entirely under the spell of his own psychotic experiences. Complete lack of criticism [sic] towards the necessity of being treated, concerning his illness and actions.” 7. The report went on to diagnose the applicant in the following manner: “Diagnosis: F20.00 Paranoid schizophrenia – continuous course, acute phase. Hallucinatory-paranoia syndrome. ” 8. The report concluded that the applicant’s involuntary inpatient treatment in a psychiatric hospital should be continued under section 68(1) of the Medical Treatment Law. It stated that the applicant had expressed a wish to participate in the court hearing concerning his compulsory treatment. 9. The hearing took place before the Riga City Ziemeļu District Court on 13 August 2012. It was attended by the applicant, a sworn attorney, E.T., and a representative of the hospital. During the hearing the representative of the hospital maintained the proposal to order the applicant’s involuntary in-patient psychiatric treatment, referring to, among other things, the fact that the patient was “angry”, that he did not want to talk to doctors, had stated that he had killed the president, and was aggressive. She also referred to the applicant’s history of psychiatric treatment. In response to the applicant’s question as to why he had been taken to the hospital, the representative of the hospital explained to him that it was because he had “talked nonsense”. The applicant admitted that there had been a conflict in the trolleybus but denied having said that he had killed or robbed the president. He explained that he knew himself how and when he should get medical treatment, and that he had been receiving out-patient medical treatment. 10. The decision adopted by the court on 13 August 2012 referred to the applicant’s history of psychiatric treatment, noting that he had been regularly visiting a psychiatrist on an out-patient basis but had been taking the prescribed medication whenever he chose to. The decision then cited the report of the panel of doctors who had examined the applicant, summarised the oral submissions of the participants of the hearing, and decided to endorse the recommendation of the panel that the applicant should be hospitalised. In establishing that the applicant posed a danger to others, the court referred to the record of the applicant’s detention drawn up by the police on 9 August 2012. That record stated that the applicant had uttered threats, and claimed to have stolen from the President of Latvia and to have robbed several houses. 11. The court went on to note the following: “An analysis of the application [for the applicant’s involuntary treatment] confirms that it has been found that [the applicant] is suffering from a psychiatric disorder, for which he has been repeatedly treated in [a psychiatric hospital]. The symptoms of the psychiatric disorder are characterised by aggressive and conflictual behaviour, which give the court no reasons to doubt the circumstances of the patient’s behaviour [and] the reasons for his placement in the [hospital], as described in the decision of the panel and the material appended to it. Such behaviour on the part of the patient creates a real danger to the life and health of the patient himself as well as to that of other people”. 12. The court agreed with the medical panel’s conclusion that an improvement in the applicant’s health was only possible if he received in-patient treatment. In relation to the out-patient treatment, the court noted that as there was no evidence – apart from the applicant’s own statement – that he had been taking the prescribed medication, it was unable to conclude that he had a serious attitude towards the out-patient regime. The court further considered that the applicant had remained sceptical about the suggestion that he was suffering from a mental disorder and denied that he needed any treatment. In the light of those considerations, the court came to the conclusion that ordering involuntary treatment was in the best interests of the applicant. The court ordered that the applicant receive in-patient treatment for two months. 13. The applicant appealed and his appeal was examined in written proceedings by the president of the Ziemeļu District Court on 30 August 2012. In his appeal the applicant indicated that he disagreed with the interference by the psychiatric hospital in his personal life and that he did not understand in what context he had been detained. The president of the court considered that the applicant’s appeal did not contain any grounds that would put the legitimacy of the impugned decision in question. 14. The applicant was discharged from the hospital on 14 September 2012. 15. Section 67(1) of the Medical Treatment Law provides that psychiatric assistance should be provided on a voluntary basis. In-patient assistance is to be provided in a psychiatric establishment only where, owing to the state of health of the patient, such assistance cannot be provided on an out-patient basis or at the patient’s place of residence. 16. Section 68(1) provides an exhaustive list of situations in which involuntary psychiatric treatment may be administered. The first subparagraph authorises involuntary treatment in cases where “[the patient] has threatened or is threatening, has attempted or is attempting to inflict bodily injuries on himself or on another person or has been or is violent towards other persons and if a medical specialist concludes that the patient has a mental health disorder, which might result in serious bodily injury to the patient himself or to another person”. 17. The second subparagraph of section 68(1) allows involuntary treatment in cases where the patient displays an inability to take care of himself and if a medical specialist concludes that the patient has a mental health disorder which might result in an irreversible and serious deterioration of his or her state of health. 18. Section 68(3) provides that in the event that the involuntary hospitalisation of a patient is considered necessary, a panel of psychiatrists should examine the patient within seventy-two hours and adopt a decision in that regard. Pursuant to section 68(5), such a decision must be sent to the competent District Court within twenty-four hours. The District Court will then examine the decision of the panel and decide whether to approve the patient’s involuntary hospitalisation for a period of up to two months. The application for involuntary admission to a psychiatric hospital must be examined within a period of seventy-two hours after receipt of the decision adopted by the panel of psychiatrists. 19. Section 69 of the Medical Treatment Law provides as follows: “(1) If a person disrupts public order due to a mental disorder or a mental disease, that person shall be detained, transported to a psychiatrist and supervised there by the police in accordance with the Law on Police. (2) The police shall submit to the psychiatrist a written report concerning the antisocial nature of the [patient’s] behaviour”.
| 0 |
test
|
001-139908
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF PITSAYEVA AND OTHERS v. RUSSIA
| 2 |
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Six month period);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture);Pecuniary and non-pecuniary damage - award
|
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
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6. The applicants in the present cases are Russian nationals. Four of the applicants in Pitsayeva and Others v. Russia (no. 53036/08) reside in Belgium, the applicant in Ibragimova v. Russia (no. 30592/10) resides in Norway, and the remaining applicants live in various districts of the Chechen Republic, as specified in the attached table (Appendix I). 7. The applicants are close relatives of persons who disappeared in the Chechen Republic between 2000 and 2006 allegedly after being abducted from their homes by groups of unidentified men. The applicants believed that the abductors were Russian federal servicemen since they were wearing camouflage uniforms, had Slavic features and spoke unaccented Russian. Armed with machine guns, the culprits broke into the applicants’ homes, searched the premises, checked the identity documents of the applicants’ relatives and took the latter away in military vehicles, such as armoured personnel carriers (APCs), UAZ minivans or Ural lorries. Only a few of the vehicles had official registration plates. In a number of cases the registration numbers were obscured with mud. None of the applicants have had news of their missing relatives since. 8. The abductions took place in various districts of Chechnya and were primarily carried out during curfew hours late at night and early in the morning. In some cases the applicants reported that a special operation had been conducted by Russian troops in the area. Indeed, in Saraliyeva and Others v. Russia (no. 63608/09), Ibragimova v. Russia (no. 30592/10) and Abdulvakhidova v. Russia (no. 52446/10), the investigative authorities officially acknowledged that a special operation had been carried out in the area at the time of the events. 9. The applicants reported the incidents to the law-enforcement authorities, and official investigations were opened. The proceedings were repeatedly suspended and resumed. From the documents submitted it appears that the relevant State authorities were unable to identify the State servicemen allegedly involved in the arrests or abductions. 10. In their observations the Government did not challenge the allegations as presented by the applicants. However, they stated that there was no evidence to prove beyond reasonable doubt that State agents had been involved in the abductions. 11. The facts relevant to each individual case are summarised below. The personal data of the applicants and their disappeared relatives are summarised in the attached table (Appendix I). 12. At the material time the first, second, third and fourth applicants and Mr Mulat Barshigov lived in Samashki, Achkhoy-Martan District, Chechnya. Mulat Barshigov was working as deputy head of the Samashki village administration. 13. On 14 November 2002 a special operation was carried out in Samashki. The village was placed under curfew and at least three roadblocks were set up in the vicinity. A military commander’s office was located in the village. 14. According to the applicants, at 2 a.m. on 14 November 2002 five or six men armed with sub-machine guns broke into their house. The intruders, who were wearing camouflage uniforms and masks, arrived in APCs (armoured personnel carriers) and UAZ vehicles. One of them, who was unmasked, was of Slavic appearance. The men, who spoke unaccented Russian, bound and gagged the first, second, third and fourth applicants, then beat Mulat Barshigov unconscious and took him away in one of their vehicles. 15. There has been no news of Mulat Barshigov since that day. 16. The Government submitted copies of the contents of criminal case file no. 63091 (comprising three volumes) on the abduction of Mulat Barshigov. They noted that in accordance with Article 161 of the Criminal Procedure Code, the documents containing personal information on the servicemen who had taken part in counterterrorist operations were not furnished to the Court. The information submitted can be summarised as follows. 17. On 14 November 2002 the first applicant reported her husband’s abduction to the Achkhoy-Martan district prosecutor’s office, stating that at about 2 a.m. on 14 November 2002 unidentified masked men in camouflage uniforms had broken into their house, gagged and bound the family members with duct tape, then had beaten her husband up and taken him away. 18. On 16 November 2002 the Achkhoy-Martan district prosecutor’s office opened criminal case no. 63091 under Article 126 of the Criminal Code (abduction). 19. On 14 November 2002 the first applicant was questioned by the investigator. She provided a detailed account of the events, stating that she and her minor children had been bound and gagged by the abductors, who had been armed with sub-machine guns. 20. On the same day Mr N. Sh., the applicants’ neighbour, made a statement to the investigation. He said that at about 5 a.m. on 14 November 2002, one of Mulat Barshigov’s sons had come over and told him that armed men in camouflage uniforms had broken into their house, tied them up and taken his father away. 21. On 14 November 2002 an investigator examined the crime scene. Samples of duct tape with fingerprints were collected as evidence. 22. On 16 November 2002 the first applicant was granted victim status in the criminal case. 23. On 10 January 2003 the investigator ordered an expert examination of the fingerprints on the duct tape collected from the crime scene. 24. On 16 January 2003 the investigation was suspended for failure to identify the perpetrators. 25. According to the expert’s report submitted on 24 January 2003, the fingerprints found on the duct tape were not of good quality and could not, therefore, be used for identification purposes. 26. On 25 April 2003, in response to an inquiry by the first applicant, the investigator informed her that the investigation had been suspended but the search for her husband was in progress. 27. On 18 March 2005 the deputy prosecutor of the Achkhoy-Martan district issued a progress report on the investigation. Having summarised the main steps taken by the investigators, the deputy prosecutor noted, inter alia, that there had been a “lack of cooperation between the authorities responsible for the operative search measures”. 28. On 31 May 2006 the investigation was resumed and the applicants were informed thereof. 29. On 1 July 2006 the investigation was suspended. 30. On 16 June 2007 the Achkhoy-Martan district prosecutor overruled the decision to suspend the investigation as premature, and ordered the investigators to carry out additional investigative measures. 31. In August 2007 an investigator again questioned the applicants and other witnesses. 32. On 10 June 2008 the investigation was resumed and the investigators were ordered to take basic steps. The investigation is still pending. 33. It appears from the case file that throughout the relevant period the applicants wrote to various State authorities complaining about the abduction, asking for assistance in the search, inquiring about the progress of the investigation and complaining of the delays. Their complaints included the following: a letter of 17 April 2003 to the Achkhoy-Martan district prosecutor’s office; a letter of 21 April 2003 to the Chechnya Prosecutor’s Office; a letter of 7 July 2003 to the Russian Prosecutor General; and a letter of 21 May 2008 to the Achkhoy-Martan district investigations department. 34. At the material time the first seven applicants were living with Mr Isa Eskiyev and Mr Usman Eskiyev (the Eskiyev brothers) in Koshkeldy village, Gudermes District, Chechnya. Their family house consisted of two separate dwellings sharing a common courtyard. One of the dwellings was occupied by the first applicant, while the other, which had two different entrances, was occupied by the other applicants. 35. At 2 a.m. on 6 June 2003 about thirty men of Slavic appearance driving four military UAZ vehicles broke into the applicants’ courtyard. They were armed, using portable radios and wearing green camouflage uniforms. They spoke unaccented Russian. Ten masked men entered into the house. They bound the hands of the first, second and eighth applicants and ordered them to lie down on the floor. After searching the house, the intruders beat up Isa and Usman Eskiyev, seized their passports and those of their spouses and took the two brothers away. Their vehicles passed freely through a checkpoint on the outskirts of the village. 36. Later that night, the same group of men broke into the house of Mr Kaim Eskhiyev, a neighbour. They were looking for his son, Mr Dalambek Eskiyev, who allegedly belonged to an illegal armed group and who had left the village two years prior to the events. The applicants heard the men asking someone over the radio “We did not find the guilty one, only two innocent men. What should we do?” and the reply, “Never mind, take them.” 37. Isa and Usman Eskiyev have been missing ever since. 38. The Government submitted copies of part of the contents of criminal case file no. 35006 concerning the abduction of Isa and Usman Eskiyev (comprising two volumes). They noted that in accordance with Article 161 of the Criminal Procedure Code, the documents containing personal information on the servicemen who had taken part in counterterrorist operations were not furnished to the Court. The information submitted can be summarised as follows. 39. According to the Government, the first applicant reported the abduction of her sons by State servicemen to the Gudermes ROVD on 23 January 2004. According to the documents submitted by the applicants, they reported the abduction to the Gudermes ROVD on 15 October 2003. The applicants pointed out that the brothers had been abducted from their home at night by law-enforcement officers wearing camouflage uniforms and driving four UAZ vehicles. The applicants stressed that the abductors had threatened to kill them and had passed unhindered through the checkpoint. 40. On 3 February 2004 the Gudermes district prosecutor’s office opened criminal case no. 35006 under Article 126 of the Criminal Code (kidnapping). 41. On 23 January 2004 investigators questioned the first applicant, who stated that at 2 a.m. on 6 June 2003 armed men in camouflage uniforms had burst into the courtyard of their family house. She had thought that they had come, as they had previously done, to search for a certain Mr Dalambek Eskiyev, a member of illegal armed groups, and the applicants’ neighbour and relative. However, the armed men had taken away Isa and Usman Eskiyev. 42. On 9 February 2004 the second applicant informed the investigators that at 3 a.m. on 6 June 2003 she had heard some noise and thought that State servicemen were again searching for Dalambek Eskiyev. He was wanted for his involvement in illegal armed groups; therefore, servicemen had often checked his house. This time, however, they broke into the second applicant’s house. They bound her hands, ordered her to lie down on the floor and then took her husband away. She managed to unbind her hands and went outside where she learnt that the servicemen had also taken away Usman Eskiyev. The second applicant told the investigators that Isa and Usman Eskiyev might have been abducted because of their kinship with Dalambek Eskiyev. 43. On 30 June 2004 a local police officer, Mr A.N., was questioned. He stated that he had learnt about the Eskiyev brothers’ abduction the following day. He had asked their relatives to immediately lodge an official complaint, but they had refused to do so out of fear that an official inquiry would only worsen the situation. They had believed that an official complaint would make the brothers’ return impossible and had hoped that both brothers would be released once questioned and checked. He also stated that he had gone to the checkpoint and asked for information concerning the passage of the abductors’ vehicles. The police officers from the Amur Region who had been manning the checkpoint at the time had explained to him that the abductors had not gone through the checkpoint but refused to confirm that in writing. 44. Investigators examined the crime scene on 26 January 2004. No evidence was collected. 45. On 9 February 2004 the second and fifth applicants were granted victim status. The first applicant was granted victim status in March 2004. 46. On 24 February 2004 the investigators asked the Gudermes district department of the Federal Security Service (“the FSB”) to inform them whether the Eskiyev brothers had been detained by their officers. A negative reply was given. 47. The investigation was suspended on 1 April 2004 and resumed on 15 April 2004. 48. The investigation was suspended again on 30 April 2004 and then resumed on 15 June 2004. 49. On 30 June 2004 a police officer of the Gudermes ROVD informed the investigators that in September 2003 the police officers from the Amur Region who had been manning the roadblock on the Rostov-to-Baku motorway had been transferred back to their region. 50. On 8 July 2004 the investigation was suspended again; it was resumed on 2 November 2004 and suspended again on 16 December 2004. 51. On 17 December 2004 the prosecutor’s Office of the Amur Region informed the investigators that it was impossible to identify and question the police officers who had been manning the checkpoint in Koshkeldy, as all of the relevant documents had been destroyed. 52. It appears that at some point at the beginning of 2005 the investigation was resumed, but was suspended again on 4 April 2005. Subsequently, the investigation was suspended and resumed at least five more times. 53. On 5 March 2009 the supervising prosecutor criticised the progress of the investigation and ordered that the proceedings be resumed and additional steps be taken. 54. The investigation is still pending. 55. Throughout the relevant period the applicants wrote to various authorities complaining of the abduction, asking for assistance, and inquiring about the investigation and its progress. They furnished the following letters to the Court: a letter dated 12 August 2004 to the Chechnya Prosecutor’s Office; a letter dated 21 February 2005 to the Gudermes district prosecutor’s office; a letter dated 20 March 2005 to the Gudermes ROVD; a letter dated 1 June 2005 to the military prosecutor’s office of military unit no. 20102; and a letter dated 7 August 2008 to the Gudermes district prosecutor’s office. 56. At the material time the applicant and her husband, Mr Zayndi Ayubov, lived in flat no. 24 of a block located in Dyakov Street in Grozny. At 11 p.m. on 17 March 2006 fifteen servicemen broke into the flat to carry out an identity check. They had previously searched the adjacent flats and exploded a grenade near the entrance to the block. Some of the men spoke unaccented Russian, while others spoke Chechen. The servicemen were wearing military uniforms, caps and helmets with torches. They were carrying machine guns and shields. After a quick search of the flat, the men pulled Mr Ayubov’s jacket over his head, dragged him outside, put him in one of their two white Gazel minivans and drove away. 57. The applicant has not seen Mr Zayndi Ayubov since. 58. The Government submitted copies of part of the contents of criminal case file no. 50040 on the abduction of Zayndi Ayubov. They noted that in accordance with Article 161 of the Criminal Procedure Code, the documents containing personal information on the servicemen who had taken part in counterterrorist operations were not furnished to the Court. The information submitted can be summarised as follows. 59. On 17 March 2006 the applicant reported the abduction to the Leninskiy ROVD in Grozny. She stated that her husband had been abducted by armed men in camouflage uniforms and helmets, who had broken into their flat having arrived in two white Gazel minivans without registration plates. 60. On 18 March 2006 the Leninskiy ROVD forwarded the applicant’s allegations to the Leninskiy district prosecutor’s office. 61. On 20 March 2006 the applicant reported the abduction of her husband to the Leninskiy district prosecutor’s office and provided a detailed description of the events. 62. On 28 March 2006 the Leninskiy district prosecutor’s office opened criminal case no. 50040 under Article 126 of the Criminal Code (abduction). 63. On 18 March 2006 the applicant’s neighbours, Mr S.Y., Mr A.A. and Mr M.Ya., informed the investigators that at about 11 p.m. on 17 March 2006 between ten and fifteen armed men in camouflage uniforms had arrived at their block and searched several flats. They had detonated a grenade and forced open the door to one of the flats. After having found Zayndi Ayubov in the applicant’s flat, they had taken him away in two white Gazel vehicles. 64. On 29 March 2006 the applicant related the details of the events to the investigation and added that she had learnt from a neighbour that one of the abductors’ vehicles had had on the front an official registration plate containing the digits 132XA. 65. On 18 March 2006 investigators examined the crime scene. No evidence was collected. 66. On the same date an investigator sent requests for information to various law-enforcement agencies. 67. On 29 March 2006 the applicant was granted victim status in the criminal case. 68. On 3 April 2006 the investigator asked the Chechnya Ministry of the Interior to provide information about vehicles with registration numbers containing the digits 132XA. 69. On 9 April 2006 the Chechnya FSB informed the investigator that between 1994 and 2001, Zayndi Ayubov had been an active member of illegal armed groups. They also stated that they had not detained him and had no information about his whereabouts. 70. On 24 March 2006 the President of the Parliamentary Committee for Security and Law Enforcement wrote to the military prosecutor of the United Group Alignment (“the UGA”) and the head of the Chechnya FSB. The relevant parts of the letter read as follows: “[We] have been receiving new complaints from residents of the Chechen Republic concerning the unlawful actions of officers of law-enforcement agencies ... during the conduct of special and targeted operations in populated areas of Chechnya. Thus, on 17 March 2006 [Zayndi Ayubov] ... was beaten up and taken away to an unknown destination by unidentified men in camouflage uniforms. According to eyewitnesses, the arrest [of the applicant’s husband] was carried out in a very offensive manner, without the necessary procedural norms or an arrest warrant. It was carried out by men who had arrived in two Gazel vehicles. The neighbours had memorised part of one of the registration numbers – 132 XA. In addition, during the arrest special weapons were used, namely, stun grenades. One of them failed to go off and was later handed over to officers of the Leninskiy ROVD as material evidence. During one-on-one meetings, the eyewitnesses affirmed that the arrest had been carried out by FSB officers. Having regard to the above, I ask you to assist in establishing the whereabouts of Z.A. Ayubov and identifying the persons who carried out the arrest.” 71. The investigation was suspended on 28 May 2006. It was resumed on 14 June 2006, when the investigators sent new information requests and questioned the witnesses again. 72. On 19 July 2006 the Chechnya Ministry of the Interior informed the investigators that no Gazel vehicles with 132XA95 registration numbers were listed in their database. 73. On 26 July 2006 at the Leninskiy ROVD the investigators seized the two grenades which the perpetrators had left at the crime scene and which witnesses had then found and handed over to the police. 74. On the same date the investigator ordered a ballistic expert examination of the grenades. 75. The copies of documents from the criminal case file submitted by the Government did not contain any further information on the progress of the investigation. 76. The applicant complained to the domestic courts, under Article 125 of the Code of Criminal Procedure, of procrastination of the investigation (the complaint was allowed on 31 July 2007). She also applied for access to the investigation file (the request was rejected on 18 December 2007). 77. On 23 December 2008 the Grozny District Court dismissed the complaint concerning the authorities’ failure to inform the applicant’s lawyer of the progress of the investigation. On 11 February 2009 this decision was upheld on appeal. 78. In October 2009 the applicant brought civil proceedings seeking compensation for non-pecuniary damage sustained as a result of her husband’s abduction and the lack of an effective investigation into the incident. 79. On 30 November 2009 the Grozny District Court dismissed the applicant’s claim as unsubstantiated. On 9 March 2010 the Chechnya Supreme Court upheld the judgment on appeal. 80. In the morning of 5 November 2002 the Russian federal forces conducted a special operation in the settlement of Novye Atagi. They set up military checkpoints around the settlement and blocked the passage of vehicles through the area. 81. Between 6 a.m. and 8 a.m. on that day, the applicants were in their homes located on the outskirts of the settlement when they heard the arrival military vehicles. Groups of between three and thirty men in camouflage uniforms with machine guns broke into their houses. Some of them were wearing masks and/or helmets. Most of the unmasked men were of Slavic appearance and spoke unaccented Russian. According to the applicants, they would be able to identify some of the intruders. 82. The men subjected the applicants and their relatives to insults and beatings and searched the houses. Then they beat the applicants’ five male relatives, Mr Khamzat Debizov, Mr Akhmed Kasumov, Mr Magomed Kasumov, Mr Adam Eskirkhanov and Mr Ismail Taisumov, bound their hands and put them in APCs. Eleven APCs were seen that day in the settlement; three of them were used for the abduction. Akhmed Kasumov was taken in an APC with registration number 304. The men opened fire and drove away in the direction of the town centre and the River Argun. They passed freely through the checkpoints, whereas the applicants were not allowed to do so. 83. The applicants subsequently found out that Khamzan Debizov had been held at the Urus-Martan district department of the interior (“the ROVD”) and Akhmed Kasumov at the Shali ROVD, but this information has not been officially confirmed. 84. According to the applicants, the servicemen belonged to the Federal Security Service (“the FSB”) and the special unit of the Privolzhskiy Circuit of the Internal Forces of the Ministry of the Interior (Оперативная бригада Приволжского округа ВВ МВД) and they arrested the applicants’ relatives on suspicion of active membership of illegal armed groups. 85. The applicants have not seen their five relatives since 5 November 2002. 86. The Government submitted copies of the documents from criminal case file no. 50040 on the abduction of Khamzat Debizov, Akhmed Kasumov, Magomed Kasumov, Adam Eskirkhanov and Ismail Taisumov. The information submitted may be summarised as follows. 87. On 12 November 2002 the applicants complained to the Chechnya prosecutor’s office of the abduction of their relatives by Russian servicemen. 88. On 15 November 2002 the Shali district prosecutor’s office opened joined criminal case no. 59254 into the abduction of the applicants’ five relatives under Article 126 of the Criminal Code (abduction). 89. On 18 November 2002 the first, fifth, ninth and thirteenth applicants stated that on 5 November 2002 armed men in camouflage uniforms had arrived in APCs, broken into their houses and taken their relatives away. They also stated that one of the APCs had had registration number 304. 90. On 26 April 2006 the eleventh applicant made a similar statement. 91. Between 18 and 20 November 2002 the first, fifth and ninth applicants were granted victim status and questioned. 92. The investigation was suspended on 15 January 2003 and then resumed on 27 March 2006. 93. In April and November 2006 the investigator examined the crime scenes. No evidence was collected. 94. On 5 May 2006 the eleventh applicant was granted victim status and questioned. 95. The investigation was suspended again 3 June 2006 and then resumed on 15 November 2006. 96. In November 2006 and February 2007 the investigators again questioned the applicants and renewed their information requests to various law-enforcement agencies, asking whether they had detained or arrested the applicants’ relatives. 97. On 3 March 2007 the investigation was suspended. It was resumed and suspended several more times, and is still pending. 98. Throughout the proceedings the applicants complained to various authorities about the abduction and requested assistance in their search. They wrote in particular to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms in December 2002; to the Chechnya Prosecutor’s Office and the military prosecutor’s office of military unit no. 20102 in March 2003; to the Shali district prosecutor’s office in February and April 2004; to the military prosecutor’s office of military unit no. 20116 in June 2005; to the Shali district prosecutor’s office in February 2006; to the military prosecutor’s office of military unit no. 20116 and to the Chechnya Prosecutor’s Office in November 2006; and to the Chechen Government in August 2008. 99. On 30 July 2002 Mr Aslambek Adiyev (in the documents submitted also referred to as Mr Ibragim Madiyev), Mr Albert Midayev, Mr Magomed Elmurzayev and their respective families had gathered at Albert Midayev’s house in Shali. At 2.05 p.m. several vehicles pulled over at the gate and a group of men in camouflage uniforms with pistols, machine guns and shields got out. All but two were wearing masks. The men opened fire at Aslambek Adiyev and shot him in the leg. Then they dragged him into one of the vehicles. 100. The men then broke into the house and ordered everyone in unaccented Russian to lie on the floor. They hit those who did not obey. Meanwhile, the sixth applicant walked outside to the backyard and saw Albert Midayev facing the wall with his hands above his head and one of the intruders kicking him in the leg. Shortly thereafter, the men put Albert Midayev and Magomed Elmurzayev in the same vehicle and drove them down Ivanovskaya Street towards the town centre. This vehicle was followed by a convoy of at least five vehicles, including an APC, a UAZ, a white VAZ car, a white Volga car and an armoured infantry carrier. The applicants tried to follow the convoy but were unsuccessful. 101. On 29 August 2002 an officer of the Chechnya FSB told the sixth applicant in a private conversation that the intruders belonged to the 34th special military unit based in Argun. 102. The applicants have not seen their three relatives since 30 July 2002. 103. The Government submitted copies of documents from criminal case file no. 59194 on the abduction of Aslambek Adiyev, Albert Midayev and Magomed Elmurzayev (comprising two volumes). The information submitted may be summarised as follows. 104. On 30 July 2002 the applicants reported the abduction of their three relatives by armed men in camouflage uniforms to the head of the Shali district administration. The applicants’ complaint was forwarded to the Shali district prosecutor’s office. 105. On 8 August 2002 the Shali district prosecutor’s office opened criminal case no. 59194 into the abduction of Ibragim Madiyev, Albert Midayev and Magomed Elmurzayev, under Article 126 of the Criminal Code (abduction). 106. On 7 February 2011 the investigator corrected the decision of 8 August 2002 because the name of one of the applicants’ abducted relatives was wrongly mentioned as “Ibragim Madiyev”. It was changed to “Aslambek Adiyev”. 107. The majority of the witness statements submitted by the Government were incomplete as there were pages missing. From the documents submitted it appears that on 12 August 2002 the thirteenth and fourteenth applicants informed the investigator that in the afternoon of 30 July 2002 a group of armed men had broken into their house, shot Aslambek Adiyev in the leg and beaten up Albert Midayev and Magomed Elmurzayev. They had then put all three men in a grey UAZ vehicle, and driven away accompanied by two VAZ cars. On 24 May 2004 the first and sixth applicants made similar submissions. 108. On 12 August 2002 the fourteenth applicant was questioned and granted victim status. 109. The investigation was suspended on 12 April 2004 and then resumed on 29 April 2004. 110. On 30 April 2004 the investigator sent information requests to various law-enforcement agencies concerning the whereabouts of the abducted men. Negative replies were given. 111. On 24 May 2004 the first and sixth applicants were granted victim status. 112. The investigation was suspended on 29 May 2004 and then resumed on 28 September 2006. 113. In October, November and December 2006 the investigator forwarded the same information requests and again questioned the same witnesses. 114. The investigation was suspended and resumed several more times. The criminal proceedings are still pending. 115. Throughout the investigation the applicants wrote to various authorities requesting assistance in the search for their relatives and inquiring about the progress of the investigation. They complained to the military prosecutor’s office of military unit no. 20102 in September 2003; to the Ministry of the Interior of Russia and the military commander of Argun in March 2004; to the Chechnya Prosecutor’s Office in June 2005; to various departments of the Ministry of the Interior in August 2006; and to the Shali district investigations department in November 2008. 116. In reply to those inquiries the applicants were informed that investigative measures were being taken to establish the whereabouts of their relatives and that they would be kept abreast of the results of the investigation. 117. On 27 October 2002 Mr Buvaysar Magomadov and other relatives were sleeping in the applicant’s house in Mesker-Yurt, Shali district. At about 6 a.m. two APCs and a Gazel minivan arrived at the house. A group of up to twenty masked armed men in camouflage uniforms and bullet-proof vests jumped out of the vehicles and entered the house. Speaking unaccented Russian, they checked Buvaysar’s and his father’s identity documents. They told the father that they were taking Buvaysar away for an identity check. The applicant asked them whether they had come from Shali and whether they had been checking other villagers. The servicemen nodded in the affirmative. Then they put Buvaysar in the minivan and departed. 118. The applicant’s brother, Ismail Magomadov, immediately reported the abduction to the head of the local administration. Together they found out that the servicemen had driven to Shali. According to the servicemen manning the checkpoint on the outskirts of Mesker-Yurt, a convoy of two APCs and a minivan had passed through and driven in the direction of Shali. 119. On the same day the applicant went with her relatives to the Shali district military commander’s office. An on-duty serviceman told her that an arrested man had been brought in and handed over to the district FSB. Later that day the head of the district FSB told the applicant that Buvaysar Magomadov would be questioned and then released in three days. However, subsequently the officer denied having any knowledge of the events. 120. On 31 October 2002 the relatives learnt that Buvaysar Magomadov had been taken to Khankala, where the main base of the Russian military in Chechnya was situated. 121. The applicant has not seen Buvaysar Magomadov since 27 October 2002. 122. The Government submitted copies of the documents from criminal case file no. 22144 on the abduction of Buvaysar Magomadov. The documents mainly cover the period after 6 May 2008 because documents concerning the preceding period have been lost (see paragraph 145 below). The information submitted may be summarised as follows. 123. On 29 October 2003 the Shali district prosecutor’s office opened criminal case no. 22144 on the abduction of Buvaysar Magomadov under Article 126 of the Criminal Code (abduction). 124. In May 2008 the investigation questioned several witnesses. The applicant and Buvaysar Magomadov’s brother, Mr I.M., stated that on 27 October 2003 a group of armed masked men in camouflage uniforms had arrived in two APCs and a Gazel and burst into their house. They had searched their father and Buvaysar, and then put the latter in one of the APCs and driven away. A neighbour, Mr R.M., who lived opposite the applicant and had witnessed the abduction through the window, made a similar submission. 125. On 29 December 2003 the investigation was suspended for failure to identify the perpetrators. 126. It is not clear whether any measures were taken between 2003 and 2008 given that the contents of the case file furnished by the Government do not cover the relevant period. 127. On 6 May 2008 the head of the Shali investigations department found that criminal case file no. 22144 had been lost. He ordered that the case be restored under the same number and resumed. On the same date he instructed the investigators to take investigative measures. 128. On 10 May 2008 the applicant was granted victim status. 129. In May and June 2008 the investigator sent requests for information concerning Buvaysar Magomadov to different law-enforcement authorities in the region. The requests did not yield any relevant information. 130. The investigation was suspended on 6 June 2008 and then resumed on 13 April 2009. It was suspended and resumed several more times. The proceedings are still pending. 131. On 8 July 2005 the applicant lodged a complaint with the Chechnya State Council, which was forwarded to the Chechnya Prosecutor’s Office. On 22 July 2005 the latter requested that the Shali district prosecutor’s office speed up the investigation and keep the applicant informed of the outcome. The applicant was informed thereof. 132. On 22 May 2008 the applicant asked the Shali investigation department to inform her about the progress of the investigation. 133. On 17 July 2008 the applicant complained to the Shali investigation department of the procrastination of the investigation and sought access to the criminal case file. Her request was granted on 31 July 2008. On 9 April 2009 the applicant complained of the inadequacy of the investigation to the investigative authorities and requested that the proceedings be resumed. 134. At about 7 a.m. on 8 September 2004 a white VAZ-2107 car with tinted windows arrived at the applicant’s house in Chernorechye, in the Zavodskoy district of Grozny. Three more cars, a silver VAZ-21099, a Volga and a UAZ, parked in a neighbouring street. The cars had no registration numbers. Ten to fifteen masked men in camouflage uniforms, armed with short-barreled machine guns, broke into the applicant’s house. They spoke Chechen. The applicant thought that the intruders were policemen conducting a sweeping operation. The men grabbed the applicant’s son, Mr Said Adiyev, dragged him into their VAZ-2107 vehicle and quickly drove away. 135. During her ensuing search for her son, the applicant met Mr Alikhan Mutsayev, the commander of the 6th division of the “oil squadron” (нефтеполк) of the Chechnya Ministry of the Interior. The officer admitted that he had participated in the abduction and acknowledged that Said Adiyev was being detained by his acquaintances from the Federal Security Service. Said Adiyev’s father informed the investigators about Alikhan Mutsayev, but they refused to question him. Alikhan Mutsayev and his FSB acquaintances were killed at the beginning of 2008. 136. The applicant submitted that prior to his abduction Said Adiyev had been arrested in a sweeping operation but subsequently released, as his participation in illegal armed groups had not been confirmed. 137. The applicant has not seen Said Adiyev since 8 September 2004. 138. The Government submitted copies of the documents from criminal case file no. 31084 concerning the abduction of Said Adiyev. The information submitted may be summarised as follows. 139. On 13 September 2004 Said Adiyev’s father reported the abduction to the Chechnya prosecutor’s office. 140. On 8 October 2004 the Zavodskoy district prosecutor’s office opened criminal case no. 31084 on Said Adiyev’s abduction under Article 126 of the Criminal Code (abduction). 141. On 29 September 2004 the investigator questioned several witnesses. The applicant, as well as Said Adiyev’s father and wife, stated that at around 7 a.m. on 8 September 2004 a group of armed men in camouflage uniforms had broken into their house, grabbed Said Adiyev and dragged him into a VAZ-2107 vehicle, which had no registration numbers, and had driven away. The applicant’s neighbours who had witnessed the abduction made similar submissions. 142. On 18 October 2004 the investigator examined the crime scene. No evidence was collected. 143. On 21 October 2004 and 25 November 2007 victim status was granted to Said Adiyev’s father and the applicant respectively. 144. The investigation was suspended on 8 December 2004 and then resumed on 27 September 2005. 145. In March and November 2007 the investigators questioned several witnesses again. Their statements were similar to those previously given. The authorities also renewed their information requests, but received no relevant information. 146. The investigation was suspended on 17 April 2007 and resumed on 30 August 2007. It was suspended and resumed several more times. The investigation is still pending. 147. In 2005 the applicant lodged numerous complaints with the Zavodskoy district prosecutor’s office, the Chechnya Prosecutor’s Office and the Chechen Government. She was informed that investigative measures were being taken in order to establish the whereabouts of her son. 148. On 18 March 2009 the applicant complained to the Zavodskoy district investigations department of the procrastination of the investigation and requested access to the investigation file. However, her request was refused and at the beginning of June 2009 she challenged the refusal before the Zavodskoy District Court. 149. On 21 June 2009 the applicant was granted access to the criminal case file. Consequently, on 29 June 2009 the Zavodskoy District Court discontinued the examination of her complaint as it considered that the matter had been resolved. 150. In the morning of 14 February 2002 Mr Aydrus Saraliyev, Mr Artur Yesiyev and Mr Bislan (also spelt as Beslan) Chadakhanov were staying at the house of their friends, brothers Islam and Movldi Dzhabrailov (also spelt Zhabrailov), in Urus-Martan. A checkpoint had been set up nearby and a military commander’s office was operating in the town centre. The town was under curfew. 151. At about 5 a.m. a large group of men in camouflage uniforms arrived at the house in two APCs and three Ural lorries. The men were of Slavic appearance and spoke unaccented Russian. They fired their machine guns, wounded Islam Dzhabrailov, who was then taken outside, and ordered the three guests to go outside. The intruders put plastic bags over the heads of the three men and the Dzhabrailov brothers. Thereafter, they quickly searched the house, put the five blindfolded men in a Ural lorry and took them to the town centre. The servicemen dropped off the Dzhabrailov brothers at the Urus-Martan temporary department of the interior (“the VOVD”) and then drove away to an unknown destination with the applicants’ relatives. On the same date Molvdi Dzhabrailov was released and his brother Islam was taken by the VOVD officers to the district hospital for treatment. 152. In March 2002, Mr G. and Mr L. from the Urus-Martan district prosecutor’s office returned the passports of the three disappeared men to the applicants. They explained that the passports had been handed over to them at the Urus-Martan VOVD, where the applicants’ relatives had been taken after their arrest. The applicants have not seen their three relatives since 14 February 2002. 153. The Government submitted copies of the documents from criminal case file no. 61026 concerning the abduction of Aydrus Saraliyev, Artur Yesiyev and Bislan Chadakhanov. The information submitted may be summarised as follows. 154. On 14 February 2002 the applicants complained to the VOVD of their relatives’ abduction. 155. On the same date a police officer from the VOVD reported to his superiors: “Dzhabrailov Islam ... was delivered to [the district hospital] with the following diagnosis: a penetrating gunshot wound in the lower third of the left thigh ... [and] a penetrating gunshot wound in the left shoulder ...” 156. On 16 February 2002 the head of the VOVD sent several pieces of evidence to the Urus-Martan district prosecutor’s office, stating: “[these are] preliminary inquiry materials concerning the gunshot wounds of Dzhabrailov I.V., [and] the abduction of Yesiyev A.R., Chadakhamov B.M., and Saraliyev A.M. from the house at no. 159 Sovetskaya Street, Urus-Martan district. Enclosed:... Material evidence: 8 bullets and shells from an AK (Kalashnikov machine gun) calibre 5.45, a ‘Baykal’ pistol without a cartridge, a grenade F-1, and passports in the names of Saraliyev A.M., Esiyev A.R., and Chadakhanov B.M." 157. On 20 February 2002 the Urus-Martan district prosecutor’s office opened criminal case no. 61026 on the abduction of Aydrus Saraliyev, Artur Yesiyev and Bislan Chadakhanov and the infliction of bodily injuries on Islam Dzhabrailov. 158. On 14 February 2002 the investigator questioned a number of witnesses. Mauldy Dzhabrailov informed the investigator that in the evening of 13 February 2002, Islam Dzhabrailov had had three guests who had stayed that night in their family house. The next morning at about 5 a.m. he had been woken up by the sound of gunfire. A few minutes later, armed men in camouflage uniforms had broken into the house and ordered him to go outside and lie down in the courtyard. Islam and his three guests had already been lying on the ground; an APC had been parked in the courtyard. A Ural lorry had then arrived and the armed men had forced them into it and driven away. Ten minutes later, the servicemen had pulled the lorry over, ordered him and his brother out of the vehicle and forced them into a UAZ vehicle, which had taken them to the premises of the UrusMartan VOVD. His brother’s guests had been taken on to an unknown destination. 159. Islam Dzhabrailov stated that in the evening of 13 February 2002 three acquaintances of his had visited him and asked to spend the night at the house because of the curfew. He had been woken up the next morning at about 5 a.m. by gunfire and had then been wounded in the arm and leg. Afterwards, a group of armed men had burst into the house and taken him, his guests and brother to the military commander’s office. He and his brother had then been taken to the VOVD. Subsequently, VOVD officers had transferred him to the district hospital. 160. The spouses of Mauldy and Ismail Dzhabrailov, Ms R.D. and Ms R.V., stated that in the evening of 13 February 2002 three men had visited Ismail and spent the night at their family house. At about 5 a.m. the following day, a group of armed men in camouflage uniforms had opened fire outside the house and had wounded Islam. They had then searched the house, forced the five men into a Ural lorry and driven away. 161. Several neighbours also stated that at about 5 a.m. on 14 February 2002 they had seen a group of armed men in camouflage uniforms arrive at the Dzhabrailov brothers’ house and open fire with machine guns. 162. In February and March 2002 the investigators questioned several police officers from the Urus-Martan VOVD. Three of them, Mr Kh., Mr K. and Mr V., stated that while on duty at about 6 a.m. on 14 April 2002, they had been instructed by their superiors to take from a UAZ vehicle parked near the military commander’s office two arrested men, one of whom had been wounded. They had taken both men to the VOVD where the wounded man had been given first aid and then transferred to the district hospital. 163. Mr Ko., another officer from the VOVD, stated the following: “At about 6 a.m. on 14 February 2002 ... I was told that a wounded man had been brought in ... who was lying in the corridor ... His surname was Dzhabrailov ... In the corridor I was approached by the head of the VOVD staff, Mr Su., [who] handed me a grenade and a pistol without a cartridge. [Mr Su.] told me that this pistol and grenade were material evidence related to the wounded man, Mr Dzhabrailov. He said that [someone] had handed him the pistol and grenade. I do not know who gave those objects to Mr Su. There were no accompanying documents for either the pistol or the grenade ... The same morning, 20-25 minutes later, the head of [the traffic police office] [St.] approached and said that he had come from somewhere [where] he had been given three passports and had been asked to hand them over to me. He said that [the passports] also concerned the wounded man, Mr Dzhabrailov. I do not know who gave those passports to the officer. Upon my instructions, the passports were examined and handed over to the investigation. According to the examination record, the passports belonged to Mr Chadakhanov, Mr Yesiyev, and Mr Saraliyev. I did not see Chadakhanov, Yesiyev, or Saraliyev themselves, they were not brought to the VOVD”. 164. The relevant part of Mr Su.’s statement to the investigators reads as follows: “I do not remember the exact date but, possibly, in the morning of 14 February 2002 ... a special operation was planned for Gekhi in the Urus-Martan district, and I went with a group of others to the military commander’s office for a briefing. There was a Ural lorry parked nearby with masked men in camouflage uniforms. One of them gave me a grenade and a pistol without a cartridge and told me that the grenade and pistol had been seized at the house of the persons who had been brought to the VOVD ... I took the pistol and grenade and gave them [to Mr Ko.] ... [The man] who gave me the pistol and grenade did not introduce himself and I did not ask [his name] either.” 165. The relevant part of Mr St.’s statement to the investigators reads as follows: “In February 2002 other offices from the [VOVD] and I were preparing to carry out a sweeping operation in the area near the military commander’s office ... when [an officer from the VOVD, Mr Ses.] walked out of the office and gave me three passports ... I handed the passports over [to Mr Ko.] at the VOVD”. 166. On 14 February 2002 the investigator examined the crime scene. Traces of blood and bullet holes were found and eight shells were collected. 167. On 20 April 2002 the investigator suspended the investigation for failure to identify the perpetrators. 168. On 18 April 2002 the applicants were granted victim status. 169. The investigation was resumed on 13 August 2002 and then suspended again on 15 September 2002. 170. On 18 September 2003 the investigator requested that the VOVD carry out operative search measures. On 30 September 2003 the head of the police replied to the investigator’s request as follows: “Following your request ... we inform you that operative search measures have been carried out to identify and arrest the perpetrators and establish the abducted men’s whereabouts. In view of the fact that the abduction was carried out by military servicemen and they, as you know, do not report to the police, it has been impossible to identify them ”. 171. The investigation was resumed on 27 August 2004 and then suspended on 27 September 2004. 172. On 31 January 2005 the investigation ordered a forensic medical examination of Islam Dzhabrailov’s wounds, questioned the witnesses again and sent information requests to various law-enforcement agencies. 173. On 11 February 2005 the investigation was suspended. It was resumed and suspended several more times and is still pending. 174. Between June 2002 and June 2009 the applicants complained to various law-enforcement agencies and requested assistance in the search for their relatives. They received no substantive information from the authorities, nor were they allowed access to the investigation file. 175. In 2004 the second applicant brought proceedings against the investigators, complaining about the incomplete and protracted investigation, and requested access to the investigation file. On 7 July 2004 the Urus-Martan District Court allowed the applicant’s complaint in part; it ordered the prosecutor’s office to conduct a comprehensive and thorough investigation and stated that the applicants would be allowed access to the investigation file only after the completion of the criminal proceedings. 176. At 6 a.m. on 4 November 2002 a blue Gazel minivan arrived at the first applicant’s house in Mesker-Yurt. A group of twelve men in camouflage uniforms armed with machine guns broke into the house. All but two of them were masked; the unmasked men were of Slavic appearance. After searching the house, the men took Mr Apti Dombayev to the vehicle and drove him away. On the same date the applicants’ neighbours saw a white VAZ-2107 car, a UAZ car and a Ural lorry driving around with the Gazel minivan. None of the vehicles had registration plates. One of the neighbours managed to follow the vehicles to the Argun sugar factory. 177. The applicants have not seen Apti Dombayev since 4 November 2002. 178. The Government submitted copies of the documents from criminal case file no. 59278 concerning the abduction of Apti Dombayev. The documents cover mainly the period between December 2002 and December 2003. The information submitted may be summarised as follows. 179. On 9 December 2002 Ms K.D., Apti Dombayev’s mother, complained that her son had been abducted by servicemen in camouflage uniforms who had been driving vehicles without registration numbers. 180. On 24 December 2002 the Shali district prosecutor’s office opened criminal case no. 59278. 181. It appears from the criminal case file submitted by the Government that only two witnesses, Ms K.D. and a neighbour, Ms Kh.Kh, were questioned by the investigation. Ms K.D. stated that at about 6 a.m. on 4 November 2002 unidentified armed men in camouflage uniforms had broken into their house, searched it and then taken Apti Dombayev away. Ms Kh.Kh. stated that at about 6 a.m. on the same date she had heard Ms K.D crying. She had gone out and learnt from Ms K.D. that servicemen had abducted her son. 182. On 24 December 2002 the investigators granted victim status to Ms K.D. 183. On 26 December 2002 the investigator sent requests to various lawenforcement agencies asking for information about the detention of Apti Dombayev and special operations conducted in Mesker-Yurt on 24 December 2002. Negative replies were given. 184. The investigation was suspended on 24 February 2003. It was later resumed and then suspended again on 6 June 2003. It was resumed and suspended several times, and the proceedings are still pending. 185. It appears from the case file that between 2003 and 2009 the applicants and their relatives complained to different authorities, asking for assistance in their search for Apti Dombayev. Following their complaints they were informed that the investigation was in progress and all the necessary measures were being taken to establish Apti Dombayev’s whereabouts and identify the perpetrators. In particular, on 30 September 2005 the Shali district department of the interior (“the ROVD”) informed the applicants that the investigation had been checking the theory that members of the special forces stationed in the Shali district, military servicemen and members of illegal armed groups detained on the ROVD premises may have been involved in the abduction. 186. In August 2003 the applicant, her sisters and her brother, Mr Gilani Aliyev, were staying at their mother’s house in Alkhazurovo. A local military commander’s office was situated nearby. The settlement, surrounded by military checkpoints, was under curfew. 187. At 3.15 a.m. on 11 August 2003 between two and five APCs, three UAZ cars and several Ural lorries arrived at the house. A group of fifteen to twenty men in camouflage uniforms armed with machine guns broke into the house. Those who were unmasked had Slavic features and spoke unaccented Russian. The servicemen took Gilani Aliyev away. The applicant saw two APCs drive away in the direction of Goyty and two UAZ cars in the direction of Urus-Martan. 188. Later that morning, Officer S.A., the military commander of Alkhazurovo, informed the applicant that Russian servicemen had carried out a special operation during the night and confirmed that Gilani Aliyev had been detained by them. 189. On the same day two officers of the Urus-Martan district military commander’s office told the applicant that their servicemen had arrested two men in a village situated twenty minutes by road from UrusMartan. The applicant concluded that one of the arrested men must have been her brother. 190. The applicant further learnt that on the same night the servicemen had detained another resident of Alkhazurovo, Mr A.K. 191. The applicant has not seen Gilani Aliyev since 11 August 2003. 192. The Government submitted copies of the documents from criminal case file no. 34085 concerning the abduction of Gilani Aliyev. The information submitted may be summarised as follows. 193. On 11 August 2003 the applicant reported to the Urus-Martan ROVD that earlier that day, at about 3 a.m., armed men in camouflage uniforms had broken into their house and abducted her brother. 194. On 23 August 2003 the Urus-Martan district prosecutor’s office opened criminal case no. 34085. 195. On an unspecified date in 2003 the applicant and Gilani Aliyev’s wife, Ms M.M., stated that on 11 August 2003 a group of armed men in camouflage uniforms had broken into their house, locked them in one of the rooms, and taken Gilani Aliyev away. 196. On an unspecified date in 2003 Gilani Aliyev’s brother, Mr Yu.A., stated that on the night of the events he had been asleep in the same room as his brother. He had been woken up by a serviceman in camouflage uniform pointing a sub-machine gun at his forehead. There had been several servicemen in the room. They had ordered him and Gilani to get up and then taken the latter away. After the men had gone out, he had followed them and seen several APCs and Ural lorries drive off in two different directions. 197. On 11 August 2003 the investigators examined the crime scene. No evidence was collected. The investigators then took statements from the applicant and her relatives. 198. On 26 August 2003 the investigators ordered the police to carry out operative search measures, such as identifying eyewitnesses and the perpetrators of the crime. They also sent information requests concerning Gilani Aliyev’s possible arrest and detention to various law-enforcement agencies in the region. 199. On 29 August 2003 the applicant was granted victim status. 200. On 23 October 2003 the investigation was suspended. It was resumed and suspended several more times (in 2004, 2005 and 2007); each time, the investigators renewed their information requests and questioned the same witnesses again. 201. It appears from the case file that from 2003 to 2009 the applicant and her relatives complained to various law-enforcement agencies about the investigation and sought information about its progress. In reply they were informed that the investigation was pending and that all the necessary measures were being taken to establish Gilani Aliyev’s whereabouts. 202. On 16 June 2009 the applicant requested that the investigators resume the investigation suspended on 30 September 2007 and allow her access to the investigation file. 203. On 20 June 2009 her request was refused. The applicant challenged the refusal in court. 204. On 9 July 2009 the Achkhoy-Martan District Court (“the District Court”) dismissed the applicant’s complaint in full. 205. On 12 August 2009 the Chechnya Supreme Court quashed the decision and remitted the complaint for fresh examination for the following reasons: “According to the case file, the missing person [Gilani Aliyev] was taken away by officers of the security agencies in two APCs and UAZ vehicles. The prosecution does not dispute the above allegations [of the applicant]. The only reason for refusing a victim access to the investigation file is to ensure secrecy of an investigation during the examination of a theory that close relatives may have been involved in the disappearance of the missing man. In the present case there were no such reasons to refuse the victim access to the investigation file ...” 206. On 1 September 2009 the District Court found the investigator’s refusal unlawful in part and granted the applicant’s request for access to the investigation file. 207. Between 8 p.m. and 9 p.m. on 9 March 2006, eight or nine UAZ cars and a grey VAZ minivan (Tabletka) arrived at the applicants’ block of flats in Grozny and cordoned off the neighbourhood. A group of up to eight masked men in camouflage uniforms with portable radios and machine guns, some of which were equipped with silencers, broke into the applicants’ flat. Some of the intruders spoke unaccented Russian. They ordered Mr Mikhail Borchashvili to lie face down on the floor and checked his passport. Then they dragged him outside, put him in one of their cars and drove away. 208. At the material time the applicants’ neighbourhood was surrounded by a number of military checkpoints through which the abductors had been able to pass freely. 209. The applicants have not seen Mikhail Borchashvili since 9 March 2006. 210. The Government submitted copies of the documents from criminal case file no. 50037 concerning the abduction of Mikhail Borchashvili. The information submitted may be summarised as follows. 211. On 10 March 2006 the seventh applicant reported to the Leninskiy ROVD of Grozny that at between 8 and 9 p.m. on 9 March 2006 armed men in camouflage uniforms had abducted her brother, Mikhail Borchashvili. 212. On 20 March 2006 the Leninskiy district prosecutor’s office in Grozny opened criminal case no. 50037. 213. The first applicant stated that following military operations in Chechnya in 1999, she had moved to Tbilisi, Georgia, with her husband. In January 2006 they had returned to Grozny and rented a flat there. On 9 March 2006 a group of armed masked men in camouflage uniforms had arrived in UAZ vehicles, broken into their flat and taken her husband away. 214. Ms K.M. and Ms R.Z., the first applicant’s neighbours, stated that at about 8 p.m. on 9 March 2006 they had seen a group of armed men arrive at their block of flats in a grey UAZ vehicle. One of the men had ordered the residents to go inside and not to look through the window. The men walked up to the second floor and then went away. Afterwards, the neighbours learnt that those men had abducted Mikhail Borchashvili. 215. On 10 March 2006 the investigator examined the crime scene. No evidence was collected. 216. On 22 March and 18 April 2006 the seventh and first applicants respectively were granted victim status. 217. On 20 May 2006 the investigation was suspended. It was resumed and suspended several more times. It is still pending. 218. It appears from the case file that since March 2006 the seventh applicant has been complaining to various authorities about the abduction of her brother, delays in the investigation and the lack of access to the investigation file. 219. On 19 June 2009 the seventh applicant was allowed access to the investigation file. 220. At the relevant time the applicants lived in the village of IshkhoyYurt in the Gudermes district, Chechnya. On 28 October 2002 the settlement was under curfew. At around 3 a.m. groups of seven to ten armed men in camouflage uniforms broke into the applicants’ houses located in the same neighbourhood. Some of the intruders were masked, whereas others were wearing metal helmets. The men spoke Russian, some with an accent, and Chechen. They threatened to kill the applicants and their relatives, and beat up some of them. They checked the documents of the four men and took them barefoot outside. Mr Aslanbek Viskhadzhiyev, Mr Sultan Viskhadzhiyev and Mr Yusup Biysultanov were put in one APC and Mr Yasin Viskhadzhiyev in another. There were around thirty men in total and a convoy of four vehicles, including two APCs and two UAZ minivans (Tabletka). The convoy passed unobstructed through checkpoint no. 74 and drove away in the direction of Grozny or Gerzel. 221. According to the applicants, the abductors’ vehicles belonged to the Gudermes district military commander’s office and their relatives had been detained in a temporary detention facility on the premises of the Gudermes department of the interior (the ROVD). 222. The applicants have not seen their four relatives since 28 October 2002. 223. The Government submitted copies of the documents from criminal case file no. 57119 concerning the abduction of Aslanbek, Yasin and Sultan Viskhadzhiyev and Yusup Biysultanov. The information submitted may be summarised as follows. 224. On 5 November 2002 Sultan Viskhadzhiyev’s father, Mr A.V., complained to the Chechen Government that servicemen had abducted his son and the other three men. 225. On 13 December 2002 the Gudermes district prosecutor’s office opened criminal case no. 57119. 226. On 12 December 2002 the investigation questioned the first, second and third applicants and Mr A.V., who had witnessed the abduction of their relatives. They stated that at around 3 a.m. on 28 October 2002 groups of armed servicemen in camouflage uniforms had broken into their houses and taken Aslanbek, Yasin and Sultan Viskhadzhiyev and Yusup Biysultanov to an unknown destination. 227. On 14 December 2002 the first, second and third applicants were granted victim status. 228. On 20 February 2002 the investigators examined the crime scene. They requested that the commanders of the federal forces stationed in Ishkhoy-Yurt provide them with information about the APCs and UAZ cars which had passed through the military checkpoint on the night of the abduction and about the servicemen who had manned the checkpoint on that night. The investigators also sent queries to the military commander’s office of the Gudermes district but did not receive any relevant information. 229. The investigation was suspended on 13 March 2003 and then resumed on 3 July 2003. 230. In July 2003 and April 2004 the investigators questioned a number of witnesses again. The investigation was suspended and resumed several more times and is still pending. 231. It appears from the case file that between November 2002 and August 2009 the applicants complained to various authorities about the abduction of their relatives and the delays in the investigation. 232. In August 2009 the applicants’ lawyer was allowed access to the investigation file. 233. In November 2001 Russian military checkpoints were set up around the settlement of Goyty; a military commander’s office and a police station were situated in the village, which was under curfew. 234. At around 5 a.m. on 4 November 2001 ten men in masks, helmets and camouflage uniforms broke into the applicant’s home. They spoke unaccented Russian and were carrying torches. The men ordered the family members to lie down on the floor and searched the house. They took the applicant’s son, Mr Anzor Ismailov, outside and put him in one of the two UAZ minivans (Tabletka) parked next to an APC near the house. The vehicles drove away in the direction of the military checkpoint situated at the bridge over the Argun River, about 600 metres from the applicant’s house. The applicant’s husband followed the vehicles and spoke to the servicemen manning the checkpoint. They told him that the vehicles, with FSB servicemen on board, had passed freely through the checkpoint. 235. Later the same morning, the applicant went to the Urus-Martan military commander’s office, where she met Mr Alexander Merluyev, a Goyty resident. His brother, Mr Musa Merluyev (see application no. 36141/10, Merluyev v. Russia below), had been abducted on the same night. Three or four days later the local military commander’s office denied that Anzor Ismailov had ever been taken to their office. 236. The applicant has not seen Anzor Ismailov since 4 November 2001. 237. The Government submitted copies of documents from criminal case file no. 25193 concerning the abduction of Anzor Ismailov. The information submitted may be summarised as follows. 238. On 27 November 2001 the applicant reported her son’s abduction by servicemen to the Urus-Martan district prosecutor’s office. 239. On 8 January 2002 the Urus-Martan district prosecutor’s office opened criminal case no. 25193. 240. On 14 December 2001 the investigator questioned the applicant and her husband. They stated that at around 5 a.m. on 4 November 2001 a group of armed men in camouflage uniforms had broken into their house and taken their son away. 241. On 10 January 2001 the investigator requested that the UrusMartan FSB provide information concerning Anzor Ismailov’s possible involvement in illegal armed groups. The investigator also sent information requests to various law-enforcement agencies concerning Mr Ismailov’s possible detention on their premises, but these did not yield any relevant information. 242. On 23 January 2002 the applicant and her husband were granted victim status. 243. On 8 March 2002 the investigation was suspended. It was further resumed and suspended several times. 244. The investigation is still pending. 245. It appears from the case file that between January 2002 and October 2009 the applicant complained to various authorities of the abduction of her son and the delays in the investigation. 246. On 6 October 2009 the applicant requested access to the investigation file. On 11 November 2009 the Achkhoy-Martan investigation department refused her request, stating that she would be entitled access to the file only upon completion of the investigation. 247. At the material time the applicant, her husband and their children were living in a Red Cross refugee camp situated in the building of a former boarding school in Novye Atagi, the Shali district. 248. On 24 April 2001 a large group of armed men in camouflage uniforms arrived at the camp in military vehicles, broke in and abducted the applicant’s husband, Mr Masud Khakimov, and three other men. 249. Sometime later the Shali district military commander, Officer G.N., told the applicant that her husband had been taken away either by servicemen from special division no. 2 (Дивизия особого назначения № 2, ДОН-2) or by special regiment no. 19 of Novosibirsk (19 спецназ Новосибирска), headed by Colonel D., who lived in Omsk, Russia. 250. The applicant has not seen Masud Khakimov since his abduction on 24 April 2001. 251. The Government submitted copies of a few documents from criminal case file no. 23131 concerning the abduction of Masud Khakimov and three others (Mr A.U., Mr M.M. and Mr A.A.). Some of the documents submitted by the Government were completely illegible, whereas others were partially legible. The relevant information may be summarised as follows. 252. On 12 July 2001 the Shali district prosecutor’s office opened criminal case no. 23131 under Article 126 of the Criminal Code (abduction). 253. On 25 July 2001 the applicant was granted victim status and questioned along with other eyewitnesses to the events. All of the witnesses gave similar statements to the effect that on 24 April 2001 a group of about fifty or sixty servicemen had arrived in several APCs and UAZ cars and broken into the building where they had been living. They had taken Masud Khakimov and three other men to the courtyard, beaten them up and taken them away in UAZ cars. 254. The investigation was suspended and resumed several times. On 9 June 2003 the supervising prosecutor ordered that the investigation be resumed, having noted, inter alia, that it had failed to question servicemen involved in a special operation conducted in Novye-Atagi on the day of Masud Khakimov’s abduction. The relevant parts of the decision read as follows: “At 2.30 p.m. on 24 April 2004 unidentified armed men in camouflage uniforms, having arrived in four APCs and four UAZ cars at the premises of a secondary school in Novye-Atagi, Shali district, detained [Masud Khakimov and three others] who were living there and took them away to an unknown destination. There is no information concerning the whereabouts of [the abducted men] ... ... The preliminary investigation has been resumed and suspended repeatedly ... ... It has been established that the investigation is not being conducted thoroughly ... For instance, in the course of the investigation information has been obtained from [illegible] that at 2.30 p.m. on 24 April 2001 during a special operation, officers from the Shali FSB together with servicemen from [special regiment] no. 19 of military unit no. 6749 detained four men in the settlement of Novye-Atagi on suspicion of involvement in illegal armed groups. [Different types of firearms] were found and seized from [the detained men]. All the detained men and seized firearms were transferred to the Shali ROVD. However, the identity of the men detained during the operation and the place of their detention have not been identified so far. The [documents] of military unit no. 6749 for the relevant period have not been inspected. The circumstances of the special operation and the identification of the officers of the Shali FSB who participated in the operation have not been established. Servicemen from military unit no. 6749 have not been questioned about the circumstances of the special operation, the arrest of [those persons] or [the latter’s] whereabouts”. 255. At some point the investigator examined the special operations register of military unit no. 6749. It indicated that in April 2001 a special operation had been conducted in Novye-Atagi involving thirty-eight servicemen and four APCs. As a result of the operation four men (their names were not indicated) were detained on suspicion of participation in illegal armed groups. A number of firearms and ammunition were found on them and seized. 256. On an unspecified date the investigator questioned three servicemen from military unit no. 6749. They stated that on 24 April 2001 they and officers of the Shali FSB had taken part in a special operation in Novye-Atagi. During the operation the FSB officers had detained four men on suspicion of their involvement in illegal armed groups. The commander of the military unit was also questioned and stated that although he had not taken part in the special operation in Novye-Atagi, he had learnt afterwards that during that operation the FSB officers had arrested four men who had been involved in killing soldiers of a special unit from the Stavropol region (“the OMON”). The names of the detained men had not been given by the FSB department. 257. On a number of occasions between 2001 and 2003 the applicant requested, orally and in writing, information and assistance in the search for her husband; no useful information was provided to her by the authorities. 258. On 27 May 2004 the applicant was informed that the investigation into her husband’s abduction had been suspended on the same date, but that the search for him was still in progress. 259. On 11 July 2005 the investigators informed the applicant that the investigation had been resumed. 260. On 11 June 2006 the applicant was informed that the investigation had been suspended again. 261. On 13 June 2008 the investigators again informed the applicant that the investigation had been resumed. 262. Following the applicant’s requests, on 25 June 2002 the district courts declared Masud Khakimov missing, and on 22 August 2008 they declared him dead. 263. On 15 June 2009 and 12 November 2011 the applicant was informed that the investigation had been suspended again. 264. In July 2001 Mr Syal-Mirza Murdalov visited the Islamov family in the settlement of Chervlennaya, where the sixth, seventh, eighth and ninth applicants lived. 265. At around 3 a.m. on 9 July 2001 a large group of masked men in camouflage uniforms arrived in an APC, two Ural lorries and two UAZ cars at the backyard of the applicants’ house in Chervlennaya. Ten men with torches broke into the Islamovs’ house and searched it. Speaking unaccented Russian, the servicemen ordered everybody to lie face down on the floor. They taped the hands and mouths of Syal-Mirza Murdalov, Ayndi Islamov and Umar Islamov, took their passports and drove them away. The sixth, eighth and ninth applicants were at home and witnessed the abduction. 266. Immediately afterwards, the ninth applicant ran to the local police station and the military commander’s office. Officers on duty told her that they had neither arrested anyone nor detained anyone on their premises. 267. The applicants have not seen their three relatives since 9 July 2001. 268. The Government did not furnish any documents from the criminal case file concerning the abduction of the applicants’ relatives. From the documents submitted by the applicants, the investigation may be summarised as follows. 269. On 1 October 2001 the Shelkovskiy district prosecutor’s office opened criminal case no. 33057 on the abduction of the applicants’ relatives under Article 126 of the Criminal Code (abduction). 270. On 28 December 2001 the first applicant was informed thereof. 271. On 30 June 2003 the Chechnya Prosecutor’s Office informed the first applicant that the investigation had questioned the police officers who had been manning the checkpoints surrounding Chervlennaya at the material time, but that the involvement of servicemen in the abduction had not been confirmed. It was also noted that given that the investigation had failed to identify the perpetrators and establish the abducted men’s whereabouts, it had been suspended on 1 January 2002. 272. On 26 June 2004 the first applicant was granted victim status in the criminal case. 273. The investigation is currently pending. 274. The applicants submitted copies of the complaints they had lodged from 2001 to 2005 and in 2010 with various authorities concerning the abduction of their relatives and the delays in the investigation. Following those complaints the applicants were informed that investigative measures were being carried out in order to identify the perpetrators and establish their relatives’ whereabouts. 275. In February 2010 the applicants asked for access to the criminal case file. It is unclear whether their request was granted. 276. At around 2 p.m. on 15 June 2002 an APC without a registration plate arrived at the applicants’ house in Tangi-Chu. A group of ten armed men in helmets and camouflage uniforms broke into the house. Those of the intruders who were not wearing masks had Slavic features. Speaking unaccented Russian, the servicemen pointed their machine guns at the applicants and took Mr Aslan Yusupov outside. They took his passport, forced him into the APC and told his relatives that he would return after an identity check. 277. About ten minutes later several APCs and a white VAZ-2106 car joined the vehicle. The convoy drove away, passed freely through the Russian military checkpoint situated next to Martan-Chu, and arrived at the premises of the Urus-Martan district military commander’s office. 278. On the same day the servicemen also visited several neighbouring houses and took away Mr Ramzan Sh. along with his VAZ-2106 car. 279. Immediately after his son’s abduction, the first applicant went to the Urus-Martan military commander’s office. A woman at the gate confirmed that servicemen had arrived there in two APCs and a VAZ with two young men on board. The servicemen took the young men out of the APC and dragged them, with sacks over their heads, into the premises of the military commander’s office. 280. On 18 June 2002 the head of the Martan-Chu administration informed the applicants that Aslan Yusupov and Ramzan Sh. had been detained at the district military commander’s office and that they would be released in the evening. However, the two men were not released. 281. Several days later, the head of the Urus-Martan administration informed the applicants that five bodies had been found in an abandoned garden on the road between Urus-Martan and Goyty. The first applicant immediately went to the scene but did not identify Aslan Yusupov among the bodies discovered. At the same time the relatives of Ramzan Sh. identified one of the bodies as that of Ramzan Sh. 282. The applicants have not seen Aslan Yusupov since 15 June 2002. 283. The Government submitted copies of the documents from criminal case file no. 34052 concerning the abduction of Aslan Yusupov. The relevant information may be summarised as follows. 284. On 18 June 2002 the first applicant complained to the head of the local administration and the head of the Urus-Martan military commander’s office that his son had been abducted by servicemen. 285. On 7 April 2003 the applicant wrote to the same authorities stating that his complaint of 18 June 2012 had remained unexamined. 286. On 29 April 2003 the Urus-Martan district prosecutor’s office opened criminal case no. 34052 under Article 126 of the Criminal Code (abduction). 287. On 30 April 2003 the first applicant was questioned. A copy of the first page of his statement was not furnished to the Court. From the part of the statement provided to the Court, it appears that his son, Aslan Yusupov, had been put in an APC and taken away. On the same date servicemen had also abducted a local resident, Ramzan Sh. The applicant had gone to the Urus-Martan military commander’s office where he had learnt that two young men with sacks over their heads had been led from the APCs to the premises of the military commander’s office. The applicant also informed the investigator that on the date of his son’s abduction, servicemen had also searched the house of their neighbours, the G. family. Their son, Mr I.G., had been a member of illegal armed groups and had been on the run. 288. On 12 May 2003 the applicants’ relatives, Ms L.Kh. and Ms Ya.S., stated that on the date of the abduction, they had been at home when armed men in camouflage uniforms had broken into their house. The men had checked Aslan’s passport and then had gone to search the house of their neighbours, the G. family. However, fifteen minutes later they had come back and had called Aslan from outside. When he had gone out, the servicemen had put him in the APC and driven away. 289. On 6 June 2003 the second applicant was questioned and gave a similar submission. 290. On 11 June 2003, the applicants’ neighbour, Mr K.M., stated that at about 2 or 3 a.m. on the date of Aslan’s abduction he had been working in the yard when four armed men in camouflage uniforms had arrived and asked him about Mr I.G. When he had told them that he had no information, the men had kicked him and hit him several times on the head and arms with the butts of their rifles. Afterwards, the men had left and fifteen minutes later he had seen the second applicant, Ms L.Kh. and Ms Ya.S weeping and saying that servicemen had taken Aslan away. 291. On 30 April 2003 the first applicant was granted victim status. 292. On 14 May 2003 the investigators questioned the applicants, their relatives and neighbours. 293. On 10 June 2003 the investigators examined the crime scene. 294. On 29 June 2003 the investigation was suspended. 295. The investigation was resumed on 3 June 2005 and suspended again on 3 July 2005. Some witnesses were questioned again. 296. The investigation is still pending. 297. On 10 March 2005 the first applicant complained to the UrusMartan Prosecutor’s Office about the delays in the investigation and sought access to the investigation file. Her request for access was refused. 298. On 26 April 2005 the Urus-Martan District Court granted the first applicant’s complaint of the unlawful suspension of the investigation and ordered that it be resumed. 299. On 23 May 2008 the investigator again refused the first applicant’s request for access to the investigation file. The applicant challenged the refusal in court. 300. On 17 November 2008 the Urus-Martan Town Court allowed the first applicant access to the contents of the investigation file and authorised him to make copies of it. According to the applicant, he managed to make the copies only in March 2010. 301. In the autumn of 2001 the settlement of Goyty was under curfew and surrounded by Russian military checkpoints. The military commander’s office and a police station were operating in the settlement. 302. At around 5 a.m. on 4 November 2001 a group of five or six armed masked men in camouflage uniforms broke into the applicant’s house and ordered everyone to lie face down on the floor. One of them handcuffed the applicant. The men quickly searched the house and took Mr Musa Merluyev outside. Shortly afterwards the applicant saw an APC and two grey UAZ cars, including one minivan (Tabletka) driving away. 303. Immediately after the abduction, the applicant went to the military commander’s offices in Goyty and Urus-Martan. The officers on duty denied any knowledge of Musa Merluyev’s detention. 304. Sometime later the applicant found out that another Goyty resident, Mr Anzor Ismailov (see application Ismailova v. Russia (no. 25515/10) above), had been taken away on the same night. 305. The applicant has not seen Musa Merluyev since 4 November 2001. 306. The Government submitted copies of the documents from criminal case file no. 25167 concerning the abduction of Musa Merluyev. The relevant information may be summarised as follows. 307. On 4 December 2001 the applicant reported his brother’s abduction by servicemen to the Chechnya Prosecutor’s Office. 308. On 25 December 2001 the Urus-Martan district prosecutor’s office opened criminal case no. 25167 under Article 126 of the Criminal Code (abduction). 309. On 27 March 2002 the investigator questioned the applicant and his mother. They stated that at around 5 a.m. on 4 November 2001 a group of armed masked servicemen in camouflage uniforms had broken into their house and taken Musa Merluyev away in two grey UAZ cars and one “tabletka” minivan. 310. On 31 January 2002 the applicant’s mother was granted victim status. 311. On 20 February 2002 the investigation was suspended. 312. On 8 April 2002 the military prosecutor of military unit no. 20102 reported that the involvement of servicemen in the abduction had not been confirmed. 313. On 20 November 2002 the investigation was resumed. 314. On 13 March 2003 the applicant was granted victim status. 315. The investigation was suspended on 24 March 2003 and then resumed on 31 March 2007. 316. On 19 May 2007 the investigator examined the crime scene and questioned the applicant, his wife and two neighbours. 317. The investigation was suspended and resumed several more times without producing any tangible results. It is still pending. 318. The applicant submitted copies of the complaints that he had made to various authorities between 2001 and 2004. 319. On 26 May 2001 a special regiment of the federal forces conducted a military operation in Shali. At around 4 a.m. a group of armed, masked men in camouflage uniforms broke into Mr Adam Abdulvakhidov’s house and took him away in an APC without registration numbers. 320. The applicant has not seen her brother Adam Abdulvakhidov since 26 May 2001. 321. The Government submitted copies of the documents from criminal case file no. 24163 concerning the abduction of Adam Abdulvakhidov. The relevant information may be summarised as follows. 322. Following the abduction of her son, the applicant’s mother complained to various authorities of the abduction, but to no avail. 323. On 20 July 2001 the applicant’s mother asked the Chechnya military prosecutor’s office for assistance in searching for her son. The applicant’s complaint was forwarded to the Shali district’s prosecutor’s office. 324. On 16 October 2001 the Shali district prosecutor’s office opened criminal case no. 24163 under Article 126 of the Criminal Code (abduction). 325. On 24 October 2001 the investigator questioned the applicant’s mother, Ms Z.A., who stated that on 26 May 2001 armed men in camouflage uniforms had broken into their house and taken her son, Adam Abdulvakhidov, away. 326. The applicant was questioned on 25 December 2004 and gave a similar statement. She pointed out that the abductors had arrived in two APCs. 327. On 19 February 2010 the investigators again questioned the applicant’s mother, Ms A.Z., who reiterated her previous statement concerning the abduction. 328. Following the opening of the investigation, the investigator established that the abduction had taken place during a special operation. He drew up an action plan, the relevant parts of which read as follows: “At about 4 a.m. on 26 May 2001 during a special operation [Adam Abdulvakhidov] was arrested at his home ... by unidentified men in camouflage uniforms and then taken away in an APC without registration plates to an unknown destination ... It is necessary to take the following measures: 1. To question the relatives of [Adam Abdulvakhidov] ... 2. To identify eyewitnesses ... 3. To establish which military unit took part in this special operation”. 329. On 24 October 2001 the applicant was granted victim status. 330. In November 2001 the investigators wrote to various lawenforcement agencies requesting information about the carrying out of a special operation on 26 May 2001 and the detention of Adam Abdulvakhidov. No relevant information was received. 331. The investigation was suspended on 16 December 2001 and then resumed on 22 December 2004. The applicant was informed only of the latter decision. 332. On 26 December 2004 the investigators examined the crime scene. 333. In November 2009 the investigators questioned several of the applicant’s neighbours, all of whom stated that Adam Abdulvakhidov had been abducted by men in APCs. 334. On 19 February 2010 the investigators questioned police officer N.S. from the Shali ROVD, who stated that the search for Adam Abdulvakhidov was still in progress. 335. The investigation was suspended and resumed several more times; it is still pending. 336. On 22 December 2004 the applicant was informed by the investigators that the investigation into her brother’s abduction had been resumed and that operational search measures were being carried out. 337. On 27 October 2009 following a request by the applicant, the Shali investigation department provided her with copies of certain documents from the investigation file. 338. On 3 November 2009 the applicant brought proceedings against the investigators, alleging that the investigation had been ineffective owing to the authorities’ failure to take basic steps. She asked the court to order the investigation department to resume the investigation and rectify its shortcomings. 339. On 25 January 2010 the Shali Town Court left the complaint unexamined as the investigation had been resumed on 20 January 2010. On 3 March 2010 the Chechnya Supreme Court upheld the decision. 340. In February 2004 Mr Suliman (also referred to as Suleyman) Yunusov was staying in the house of his friend, Mr A. Mutsayev, in Grozny. At the time, Grozny was surrounded by a number of Russian military checkpoints. The nearest checkpoint was located 300 metres from the house, at the crossroads of Pervomayskaya and Mayakovskaya Streets. 341. At around 7 a.m. on 25 February 2004 a group of twelve to fifteen armed men in camouflage uniforms arrived at the Mutsayevs’ house in an APC, two white Niva cars and a white Volga car. Another two APCs were waiting at the crossroads. The servicemen, who were of Slavic and Asian appearance, broke into the houses of the Mutsayevs and their neighbours and searched them. 342. In a neighbouring house the servicemen beat up male family members and questioned them about illegal armed groups. One of them, Musa, showed his service identity card stating that he worked at the Emergencies Ministry (Emercom). The neighbours heard the servicemen saying over their portable radios: “We have found him. We are leaving.” Meanwhile, the other group of men led Suliman Yunosov out of the Mutsayevs’ house, put him in one of their Niva cars and drove him away in the direction of Pervomayskaya Street. 343. The applicant submitted that on 25 February 2004, following the murder of a fellow military officer, the servicemen had conducted a largescale sweeping operation in Grozny during which they had detained Suliman Yunusov. 344. The applicant has not seen Suliman Yunusov since 25 February 2004. 345. The Government did not furnish any documents from the criminal case file concerning the abduction of the applicant’s relative. Based on the documents submitted by the applicant and the Government’s submissions, the investigation may be summarised as follows. 346. On 15 March 2004 the Leninskiy district prosecutor’s office in Grozny opened criminal case no. 30021 under Article 126 of the Criminal Code (abduction) and granted victim status to the applicant. 347. On 15 May 2004 the investigation was suspended. 348. In June 2004 the military prosecutor’s office of military unit no. 20116 informed the investigators that the involvement of servicemen in the abduction had not been confirmed and that no special operations had been carried out in the area at the relevant time. 349. The investigation is still pending. 350. On 16 December 2011 the applicant stated that her son had fought against the Russian federal forces during the first Chechen war and had left Chechnya at the end of the war. In January 2004 he had returned and on 24 February 2004 he had gone to Grozny to visit his friend, A. Mutsayev. On 25 February 2005 she had learnt that servicemen had abducted her son and she had gone to Grozny. The Mutsayevs and their neighbours had confirmed that Suliman Yunusov had been abducted by armed men in camouflage uniforms. She had been told that the servicemen had been looking for someone and when they had arrested her son, they had left the house saying over the radio that they had found him. The first applicant also noted that after that incident, her son’s friend, A. Mutsayev had moved to Europe. 351. On 2 January 2012 the Mutsayevs and their neighbours were questioned. Ms Z. Mutsayeva stated that Suliman Yunusov had been their neighbour and had participated in the first Chechen war against the Russian federal forces. Since 23 February 2004 he had been staying in their house. In the morning of 25 February 2004, after her husband and brotherinlaw had gone out, armed masked men wearing camouflage uniforms had broken into their house. They had taken Suliman outside, put him in a Niva car and driven away. The men had spoken Russian without an accent and had a list of the names of persons they were searching for. 352. Several of the Mutsayevs’ neighbours made similar submissions about the events to the effect that on 25 February 2004 a group of armed men in camouflage uniforms had broken into their houses and had beaten up the male family members. The servicemen had questioned them about members of illegal armed groups and about their neighbours. Shortly afterwards, one of the intruders had informed the others that they had found the man they had been looking for and, therefore, they could leave. Afterwards, they had learnt that the servicemen had abducted Suliman Yunusov from their neighbours’ house. 353. In 2004, 2005 and 2010 the applicant requested information and assistance in the search for her son; no meaningful information was provided to her by the authorities. 354. On 1 March 2010 the applicant complained about the delays in the investigation and asked for access to the investigation file, but to no avail. 355. On 16 April 2010 in response to her complaint, the district prosecutor’s office informed her that a number of shortcomings in the investigation had been identified and the relevant authorities had been requested to rectify them. The prosecutor’s office also noted that on 13 March 2010 the special investigation unit of the Chechnya Prosecutor’s Office had taken over the criminal case. 356. The Basnukayevs and the Alisultanovs were neighbours. Mr Mausyr Basnukayev lived with his family, including the first to fifth applicants. Mr Vakha Alisultanov lived with his family, including the sixth to eighth applicants, and his son, Rustam. His brother, Mr Shamsudi Alisultanov, was staying at his house in April 2000. The Basnukayevs’ house was situated about 300 metres from the Alisultanovs’ house in the settlement of Chechen-Aul. 357. In April 2000 Chechen-Aul was under curfew and surrounded by Russian military checkpoints. 358. At about 3 a.m. on 16 April 2000 approximately thirty men in camouflage uniforms armed with short-barrelled machine guns cordoned off the applicants’ houses. They divided into two groups and broke in. They had parked their APC, Ural lorry and two UAZ cars in the vicinity. Those of the intruders who were unmasked were of Slavic appearance. 359. The servicemen searched the dwellings, beat up the male members of the families and checked their identity documents. They took Rustam and Mausyr Basnukayev, and Vakha and Shamsudi Alisultanov outside. The servicemen then ordered Rustam to run back to the house without looking back. They placed Mausyr Basnukayev and Vakha Alisultanov in the Ural lorry and Shamsudi Alisultanov in one of the UAZ vehicles, and drove away towards the outskirts. 360. The applicants have not seen their three relatives since 16 April 2000. 361. The Government submitted copies of the documents from criminal case file no. 19077 concerning the abduction of Mausyr Basnukayev, and Vakha and Shamsudi Alisultanov. The documents cover only the period between 2001 and 2004. The relevant information may be summarised as follows. 362. Following the abduction of their relatives, the applicants complained to various authorities. Their complaints were forwarded from one authority to another. 363. On 6 June 2001 the Grozny district prosecutor’s office opened criminal case no. 19077 in connection with the abduction of the three men. 364. In June 2001 the investigators questioned the first and the sixth applicants, who provided a detailed description of the circumstances surrounding the abduction. 365. In November 2003 the ninth applicant stated that an Ingush friend of Shamsudi Alisultanov had told her that in the summer of 2000, lawenforcement officers from Voronezh had visited him and asked questions about Shamsudi. 366. On 27 June 2001 the first applicant was granted victim status. 367. The investigation was suspended on 6 August 2001 and resumed on 29 July 2003. It was suspended and resumed several more times in 2003 and 2004. 368. In July 2003 the investigator examined the crime scene. No evidence was collected. 369. On 15 August 2003 the sixth and ninth applicants were granted victim status. 370. On 2 December 2004 the investigators suspended the investigation and informed the applicants thereof. It’s unclear whether the investigation has been resumed since. The proceedings are still pending. 371. On a number of occasions between April 2000 and December 2004 the applicants wrote to various authorities asking for assistance in the search for their missing relatives; no meaningful information was given to them. 372. On 5 October 2009 the first and sixth applicants requested access to the investigation file; the Grozny District Court granted access to the file on 13 November 2009. 373. Following the applicants’ complaint of 5 July 2010 that the investigators had failed to take adequate investigative steps, the Grozny investigations department informed them on 9 July 2010 that operational search measures were under way and that they would be kept abreast of the results of the investigative steps. 397. The Government did not contest the essential facts of each case as presented by the applicants. At the same time, they claimed that none of the investigations had obtained information proving that the applicants’ relatives had been apprehended and detained by State agents. According to them, there was no evidence proving beyond reasonable doubt that State agents had been involved in the abductions and deaths. Referring, in particular, to Debizova (no. 24708/09) and Ibragimova (no. 30592/10), the Government stated that the mere fact that the abductors had been armed and/or had driven a certain type of vehicle or had worn a particular type of uniform was not enough to presume the contrary. They pointed out that between 1996 and 2003 mercenaries of Slavic origin, including those from Ukraine, and other criminals had impersonated military servicemen and police officers to commit crimes. At the same time, the Government submitted, referring to the same two applications, that “the applicants furnished the proof that their relatives could have been detained by State representatives”. Lastly, in respect of all the cases the Government submitted that the bodies of the abducted men had never been found and there was no proof that they were dead. 398. The applicants asserted that it had been established “beyond reasonable doubt” that the men who had taken away their relatives had been State agents. In support of that assertion they referred to the ample evidence contained in their submissions and the criminal investigation files, in so far as they had been disclosed by the Government. They also submitted that they had each made a prima facie case that their relatives had been abducted by State agents and that the essential facts underlying their complaints had not been challenged by the Government. In view of the absence of any news of their relatives for a long time and the life-threatening nature of unacknowledged detention in Chechnya at the relevant time, they asked the Court to consider their relatives dead. 399. The Court will examine each of the applications in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR 2012). 400. The Court has addressed a whole series of cases concerning allegations of disappearances in the Chechen Republic. Applying the abovementioned principles, it has concluded that it would be sufficient for the applicants to make a prima facie case of abduction by servicemen, thus falling within the control of the authorities, and it would then be for the Government to discharge their burden of proof either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Kosumova and Others v. Russia, no. 27441/07, § 67, 7 June 2011, and Aslakhanova and Others, cited above, § 99). If the Government failed to rebut that presumption, this would entail a violation of Article 2 in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Tovsultanova v. Russia, no. 26974/06, §§ 77-81, 17 June 2010, and Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011). 401. The Court has also found in many cases concerning disappearances in Chechnya that a missing person could be presumed dead. Having regard to the numerous cases of disappearances in the region which have come before it, the Court has found that in the particular context of the conflict, when a person was detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as lifethreatening (see, among many others, Bazorkina v. Russia, no. 69481/01, 27 July 2006; Imakayeva v. Russia, no. 7615/02, ECHR 2006XIII (extracts); Luluyev and Others v. Russia, no. 69480/01, ECHR 2006VIII (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia, no. 40464/02, 10 May 2007; Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007; and Dubayev and Bersnukayeva v. Russia, nos. 30613/05 and 30615/05, 11 February 2010). 402. The Court has made findings of presumptions of death in the absence of any reliable news about the disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years. 403. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 17 and 19 above) demonstrate that the applicants’ relative, Mulat Barshigov, was abducted on 14 November 2002 by a group of armed servicemen in Samashki. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them. 404. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 405. Bearing in mind the general principles enumerated above, the Court finds that Mulat Barshigov was taken into custody by State agents on 14 November 2002. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Mulat Barshigov may be presumed dead following his unacknowledged detention. 406. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 39 and 42 above) demonstrate that the applicants’ relatives, Isa and Usman Eskiyev, were abducted on 6 June 2003 by a group of armed servicemen in Koshkeldy. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relatives were abducted by State agents in the circumstances as set out by them. 407. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 408. Bearing in mind the general principles enumerated above, the Court finds that Isa and Usman Eskiyev were taken into custody by State agents on 6 June 2003. In view of the absence of any news of them since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Isa Eskiyev and Usman Eskiyev may be presumed dead following their unacknowledged detention. 409. Several witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 59 and 63 above) demonstrate that the applicant’s husband, Zayndi Ayubov, was abducted on 17 March 2006 by a group of armed servicemen in Grozny. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her husband was abducted by State agents in the circumstances as set out by her. 410. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 411. Bearing in mind the general principles enumerated above, the Court finds that Zayndi Ayubov was taken into custody by State agents on 17 March 2006. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Zayndi Ayubov may be presumed dead following his unacknowledged detention. 412. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 89 and 90 above) demonstrate that the applicants’ relatives, Khamzat Debizov, Akhmed Kasumov, Magomed Kasumov, Adam Eskirkhanov and Ismail Taisumov, were abducted on 5 November 2002 by a group of armed servicemen in Novye Atagi. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relatives were abducted by State agents in the circumstances as set out by them. 413. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 414. Bearing in mind the general principles enumerated above, the Court finds that Khamzat Debizov, Akhmed Kasumov, Magomed Kasumov, Adam Eskirkhanov and Ismail Taisumov were taken into custody by State agents on 5 November 2002. In view of the absence of any news of them since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Khamzat Debizov, Akhmed Kasumov, Magomed Kasumov, Adam Eskirkhanov and Ismail Taisumov may be presumed dead following their unacknowledged detention. 415. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraph 107 above) demonstrate that the applicants’ relatives, Aslambek Adiyev, Albert Midayev and Magomed Elmurzayev, were abducted on 30 July 2002 by a group of armed servicemen in Shali. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relatives were abducted by State agents in the circumstances as set out by them. 416. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 417. Bearing in mind the general principles enumerated above, the Court finds that Aslambek Adiyev, Albert Midayev and Magomed Elmurzayev were taken into custody by State agents on 30 July 2002. In view of the absence of any news of them since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Aslambek Adiyev, Albert Midayev and Magomed Elmurzayev may be presumed dead following their unacknowledged detention. 418. Several witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraph 124 above) demonstrate that the applicant’s brother, Buvaysar Magomadov, was abducted on 27 October 2003 by a group of armed servicemen in Mesker-Yurt. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her brother was abducted by State agents in the circumstances as set out by her. 419. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 420. Bearing in mind the general principles enumerated above, the Court finds that Buvaysar Magomadov was taken into custody by State agents on 27 October 2002. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Buvaysar Magomadov may be presumed dead following his unacknowledged detention. 421. Several witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraph 141 above) demonstrate that the applicant’s son, Said Adiyev, was abducted on 8 September 2004 by a group of armed servicemen in Chernorechye. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her son was abducted by State agents in the circumstances as set out by her. 422. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 423. Bearing in mind the general principles enumerated above, the Court finds that Said Adiyev was taken into custody by State agents on 8 September 2004. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Said Adiyev may be presumed dead following his unacknowledged detention. 424. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 158 and 159 above) demonstrate that the applicants’ relatives, Aydrus Saraliyev, Artur Yesiyev and Bislan Chadakhanov, were abducted on 14 February 2002 by a group of armed servicemen in Urus-Martan. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relatives were abducted by State agents in the circumstances as set out by them. 425. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 426. Bearing in mind the general principles enumerated above, the Court finds that Aydrus Saraliyev, Artur Yesiyev and Bislan Chadakhanov were taken into custody by State agents on 14 February 2002. In view of the absence of any news of them since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Aydrus Saraliyev, Artur Yesiyev and Bislan Chadakhanov may be presumed dead following their unacknowledged detention. 427. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraph 181 above) demonstrate that the applicants’ relative, Apti Dombayev, was abducted on 4 November 2002 by a group of armed servicemen in Mesker-Yurt. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them. 428. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 429. Bearing in mind the general principles enumerated above, the Court finds that Apti Dombayev was taken into custody by State agents on 4 November 2002. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that he may be presumed dead following his unacknowledged detention. 430. Several witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 195 and 196 above) demonstrate that the applicant’s brother, Gilani Aliyev, was abducted on 11 August 2003 by a group of armed servicemen in Alkhazurovo. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her brother was abducted by State agents in the circumstances as set out by her. 431. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 432. Bearing in mind the general principles enumerated above, the Court finds that Gilani Aliyev was taken into custody by State agents on. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Gilani Aliyev may be presumed dead following his unacknowledged detention. 433. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 213 and 214 above) demonstrate that the applicants’ relative, Mikhail Borchashvili, was abducted on 9 March 2006 by a group of armed servicemen in Grozny. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them. 434. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 435. Bearing in mind the general principles enumerated above, the Court finds that Mikhail Borchashvili was taken into custody by State agents on 9 March 2006. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Mikhail Borchashvili may be presumed dead following his unacknowledged detention. 436. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraph 226 above) demonstrate that the applicants’ four relatives, Aslanbek, Yasin and Sultan Viskhadzhiyev and Yusup Biysultanov, were abducted on 28 October 2002 by a group of armed servicemen in Ishkhoy-Yurt. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relatives were abducted by State agents in the circumstances as set out by them. 437. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 438. Bearing in mind the general principles enumerated above, the Court finds that Aslanbek, Yasin and Sultan Viskhadzhiyev and Yusup Biysultanov were taken into custody by State agents on 28 October 2002. In view of the absence of any news of them since that date and the lifethreatening nature of such detention (see paragraph 401 above), the Court also finds that Aslanbek Viskhadzhiyev, Yasin Viskhadzhiyev, Sultan Viskhadzhiyev and Yusup Biysultanov may be presumed dead following their unacknowledged detention. 439. Several witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraph 240 above) demonstrate that the applicant’s son, Anzor Ismailov, was abducted on 4 November 2001 by a group of armed servicemen in Goyty. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her son was abducted by State agents in the circumstances as set out by her. 440. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 441. Bearing in mind the general principles enumerated above, the Court finds that Anzor Ismailov was taken into custody by State agents on 4 November 2001. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Anzor Ismailov may be presumed dead following his unacknowledged detention. 442. Several witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 253 and 254 above) demonstrate that the applicant’s husband, Masud Khakimov, was abducted on 24 April 2001 by a group of armed servicemen in Novye Atagi. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her husband was abducted by State agents in the circumstances as set out by her. 443. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 444. Bearing in mind the general principles enumerated above, the Court finds that Masud Khakimov was taken into custody by State agents on 24 April 2001. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Masud Khakimov may be presumed dead following his unacknowledged detention. 445. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 265 and 271 above) demonstrate that the applicants’ three relatives, Syal-Mirza Murdalov, and Ayndi and Umar Islamov, were abducted on 9 July 2001 by a group of armed servicemen in Chervlennaya. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relatives were abducted by State agents in the circumstances as set out by them. 446. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 447. Bearing in mind the general principles enumerated above, the Court finds that Syal-Mirza Murdalov, and Ayndi and Umar Islamov were taken into custody by State agents on 9 July 2001. In view of the absence of any news of them since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Syal-Mirza Murdalov, Ayndi Islamov and Umar Islamov may be presumed dead following their unacknowledged detention. 448. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 287 and 288 above) demonstrate that the applicants’ relative, Aslan Yusupov, was abducted on 15 June 2002 by a group of armed servicemen in Tangi-Chu. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them. 449. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 450. Bearing in mind the general principles enumerated above, the Court finds that Aslan Yusupov was taken into custody by State agents on 15 June 2002. In view of the absence of any news of him since that date and the lifethreatening nature of such detention (see paragraph 401 above), the Court also finds that Aslan Yusupov may be presumed dead following his unacknowledged detention. 451. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraph 309 above) demonstrate that the applicants’ relative, Musa Merluyev, was abducted on 4 November 2001 by a group of armed servicemen in Goyty. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them. 452. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 453. Bearing in mind the general principles enumerated above, the Court finds that Musa Merluyev was taken into custody by State agents on 4 November 2001. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Musa Merluyev may be presumed dead following his unacknowledged detention. 454. Several witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 325 and 326 above) demonstrate that the applicant’s brother, Adam Abdulvakhidov, was abducted on 26 May 2001 by a group of armed servicemen in Shali. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her relative was abducted by State agents in the circumstances as set out by her. 455. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 456. Bearing in mind the general principles enumerated above, the Court finds that Adam Abdulvakhidov was taken into custody by State agents on 26 May 2001. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Adam Abdulvakhidov may be presumed dead following his unacknowledged detention. 457. Several witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 346 and 350 above) demonstrate that the applicant’s son, Suliman Yunusov, was abducted on 25 February 2004 by a group of armed servicemen in Grozny. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her son was abducted by State agents in the circumstances as set out by her. 458. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 459. Bearing in mind the general principles enumerated above, the Court finds that Suliman Yunusov was taken into custody by State agents on 25 February 2004. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Suliman Yunusov may be presumed dead following his unacknowledged detention. 460. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 364 and 365 above) demonstrate that the applicants’ three relatives, Mausyr Basnukayev, and Vakha and Shamsudi Alisultanov, were abducted on 16 April 2000 by a group of armed servicemen in Chechen-Aul. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relatives were abducted by State agents in the circumstances as set out by them. 461. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 462. Bearing in mind the general principles enumerated above, the Court finds that Mausyr Basnukayev, and Vakha and Shamsudi Alisultanov were taken into custody by State agents on 16 April 2000. In view of the absence of any news of them since that date and the life-threatening nature of such detention (see paragraph 401 above), the Court also finds that Mausyr Basnukayev, Vakha Alisultanov and Shamsudi Alisultanov may be presumed dead following their unacknowledged detention. 463. The Court finds that in all the cases the applicants’ relatives were abducted by armed men in uniforms, displaying behaviour characteristic of security operations. Their behaviour and appearance, their ability to pass through roadblocks and to cordon off areas, along with their use of vehicles, lead the Court to conclude that in all probability, they were none other than State servicemen. The applicants’ allegations are supported by the witness statements collected by them and by the investigations. In their submissions to the authorities the applicants consistently maintained that their relatives had been abducted by State agents. The domestic investigations accepted as fact the version of events as presented by the applicants and took steps to check whether State servicemen had been involved in the abductions. As it appears from the documents submitted to the Court, the investigations regarded the possibility of abduction by servicemen as the only, or at least the main, plausible explanation of the events. 464. In summary, the facts of each case contain sufficient elements to enable the Court to make findings about the carrying out of security operations and thus about the State’s exclusive control over the detainees (see, among many others, Aslakhanova and Others, cited above, § 114). The Government’s arguments are limited to references to the unfinished criminal investigations, or are of a speculative nature and stand in contradiction to the evidence reviewed by the Court. In any case, they are insufficient to discharge them of the burden of proof which has been shifted to them in such cases. 465. The detention in life-threatening circumstances of Mulat Barshigov, Isa Eskiyev, Usman Eskiyev, Zayndi Ayubov, Khamzan Debizov, Akhmed Kasumov, Magomed Kasumov, Adam Eskirkhanov, Ismail Taisumov, Aslambek Adiyev, Albert Midayev, Magomed Elmurzayev, Buvaysar Magomadov, Said Adiyev, Aydrus Saraliyev, Artur Yesiyev, Bislan Chadakhanov, Apti Dombayev, Gilani Aliyev, Mikhail Borchashvili, Aslanbek Viskhadzhiyev, Yasin Viskhadzhiyev, Sultan Viskhadzhiyev, Yusup Biysultanov, Anzor Ismailov, Masud Khakimov, Syal-Mirza Murdalov, Ayndi Islamov, Umar Islamov, Aslan Yusupov, Musa Merluyev, Adam Abdulvakhidov, Suliman Yunusov, Mausyr Basnukayev, Vakha Alisultanov and Shamsudi Alisultanov and the long periods of absence of any news of them lead the Court to conclude that they may be presumed dead.
| 1 |
test
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001-158146
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ENG
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MLT
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CHAMBER
| 2,015 |
CASE OF STORY AND OTHERS v. MALTA
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Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
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Aleš Pejchal;André Potocki;Angelika Nußberger;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano
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6. The applicants were born in 1983, 1984 and 1974 respectively and are currently detained in the Corradino Correctional Facility (Paola, Malta). 7. The first applicant was arraigned in court on 8 May 2012 and was remanded on the same day on drug-related charges. He is currently in pretrial detention. 8. The first applicant submitted that in May 2012 when he arrived in prison he had been placed in Division 6, a disciplinary division with very strict standards and no privacy. No one spoke his language in that division. He was eventually moved to Division 13, where again no one spoke his language. The applicant alleged that items belonging to him had been stolen and the prison authorities had ignored his complaints, as a result of which he went on hunger strike for three days between 11 and 13 June 2012 (the latter action is indicated in the applicant’s medical records submitted to the Court). According to the Government, from the official records (which were not submitted to the Court) it did not appear that the applicant had ever complained about the matter to the prison authorities. 9. After two weeks the first applicant was transferred to Division 3. The records held by the prison authorities show that he is currently being held in cell no. 152, which is situated in Division 3. This division is located in the older section of the prison building that has undergone various stages of upgrading and renovation. However, the possibilities for further improvements are limited owing to the manner in which the building is constructed, such as with high windows and thick walls. 10. The first applicant has been occupying cell no. 152 as sole occupant. 11. The applicant submitted that in order to make his cell habitable he had had to paint it himself and equip it with proper lighting. By the Government’s admission, the painting of cells appears to be the normal procedure amongst inmates and the paint is provided by the authorities free of charge. However, the Government contended that the cell had already been equipped with artificial lighting, which was dealt with by the prison electrician, not inmates. 12. There are two ventilators and a window in cell no. 152. The wallmounted ventilator measures 20 cm by 15 cm and is covered by a rectangular piece of cardboard and there is another smaller ventilator in the ceiling. The applicant submitted that when it rained, water would pour in through the wall-mounted ventilator, which he considered was simply a hole in the wall, and which was covered by cardboard to stop the wind entering in the winter months – in consequence it rendered the room devoid of any ventilation. 13. The cell has a window, behind which are two iron grids and a third layer of exterior iron bars. The window consists of both a perspex section that allows daylight to enter and a wooden part. Both sections can in principle be opened and closed from within the cell. The window is situated at a height of 250 cm and measures 76.5 cm in width by 46 cm in height. According to the Government (and from the photographs submitted) the window in cell no. 152 is always kept closed by the occupant, despite the fact that he could open and close it by climbing onto the bed. The applicant submitted that windows in other divisions were much lower. 14. In his cell, in order to attempt to open the window he had to stand on the sink and reach for the lock by means of a piece of wood. The window, once opened, had to be kept open by means of some support, such as a metal or wooden plank, which was not usually allowed in prison. The applicant, who is of a heavy build, is unable to open such a window without the help of other lighter inmates. The Government contested that allegation, arguing that the window could be opened by using a tool (a two-foot arm) which is available to inmates for opening and closing windows as necessary. In any case, the applicant could climb onto the bed to open and close the window. 15. Lighting in cell no. 152 consists of a ceiling light and two wallmounted portable lamps, which may be moved about throughout the cell as required (both 25 Watts). 16. According to the first applicant, there was often no running water in the cell and any water was surely not potable. However, according to the Government, running water was available in each cell, including cell no. 152 (photographs submitted), and Maltese tap water flowing through the Corradino Correctional Facility was certified for human consumption, as outlined by the certificate issued by the Director of Environmental Health, dated 24 January 2014, submitted to the Court. Furthermore, according to the Government, each division was equipped with a purified potable water system, which could be accessed by all inmates. 17. Inmates are also permitted to buy bottled water from the tuck-shop (a pack of six bottles cost 2.10 euros (EUR) or EUR 0.35 per bottle). Every inmate is given “gratuity” money for such purchases amounting to EUR 27.95 monthly. The first applicant received EUR 117 as gratuity money during 2012 and EUR 363.35 during 2013. Inmates are also given the opportunity to work against a nominal payment of EUR 18.63 monthly. The first applicant received EUR 13.39 during 2012 and EUR 242.19 during 2013 for his work. 18. The Government admitted that there was no combined flushing toilet system installed in Division 3 due to the nature of the structure of the building, so inmates had to flush their own personal toilet by means of a water bucket provided within each cell. To this end, there were wall-mounted water taps in order to fill the buckets with water. Combined flushing toilets were available in the new part of the prison. The first applicant alleged that there was often no running water for flushing. 19. All inmates have access to showers at divisional level and no cell is provided with an in-cell shower. Furthermore, all inmates can use the showers numerous times daily, for as long as necessary; the showers are open for approximately twelve hours a day. However, the first applicant claimed that there were only three shower cubicles, one of which had no running water but just a plastic bottle of water, while another did not have a showerhead. Thus, only one of the showers was functional. The Government contested that allegation, arguing that sometimes the showers were damaged by the inmates. Other inmates fixed them temporarily until the authorities in turn fixed the outlets appropriately. 20. According to the first applicant, hot water was often not available in winter and frequently no water was available in summer. He submitted that complaints about the lack of water were often made to the prison guards, but they were not noted down. The Government submitted that water supply was available all year round. The same applied to hot water, which was however subject to short time lags until the water reheated whenever the water was running continuously. The authorities also made available an external water supply in the event of shortages (particularly in summer, when water bowsers were brought in to increase the water supply). 21. According to the Government, no cell in any part of the prison building (either the old block or the new block) is equipped with a heater. During summer, the inmates are allowed fans to cool down their cells. The first applicant has two fans in his cell. 22. According to the photographs submitted, the state of cell no. 152 was tidy. 23. Inmates were permitted to purchase other non-essential items for their cells, including televisions or monitors, DVD players, or game consoles upon request. The first applicant’s requests have all been granted. 24. The first applicant claimed that his cell was damp and humid. According to the Government, an inspection of cell no. 152 conducted by prison officials detected no mould in the cell. 25. The first applicant alleged that he had been asked to pay for his own medication, but as he had been unable to pay, he had remained in pain. The Government submitted that he had been in receipt of various medicines provided free of charge through the Public Health Service (PHS) in line with Regulation 31 of the Prisons Regulations (Subsidiary Legislation 260.03). According to the records held by the authorities (submitted to the Court), it also transpired that the first applicant had been visited eleven times by a doctor between 27 August 2012 (following the applicant’s admission on remand) and 30 December 2013. On eight occasions, the prescription of medicines had been required and in fact twelve medicines had been provided to the applicant. Those medicines were supplied by the PHS except for the Bioflor sachets, where a generic alternative was provided instead. It transpires that the applicant has not made any purchases relative to “self-recommendations” (the non-acceptance of generic medicine against branded medicine, see paragraph 53 below). 26. The first applicant claimed that he had not been allowed to make telephone calls at 12.15 p.m., which was the only time he could reach his relatives. 27. The Government referred to the relevant regulations (see Relevant Domestic Law, paragraph 56 below) but stated that in practice, all inmates were allowed any number of calls between 9.30 a.m. and 11.45 a.m. As from 1 January 2014 the times were changed to between 8.30 a.m. and 11.45 a.m. and between 2 p.m. and 8 p.m. Inmates who work were granted a specific period between noon and 12.15 p.m. No calls could be made between 12.25 p.m. and 2 p.m., during which time inmates were confined to their cells. 28. Inmates are given two EUR 5 telephone cards every month on the first day of the month. The first applicant has been in receipt of those cards since his arrival in prison. From the records held by the authorities it also transpires that the applicant availed himself of the opportunity to call abroad using his cards on average 4.5 times a day during the period 1 January to 6 February 2014. This refers to calls lasting a minimum of three minutes. Shorter calls were also made. A detailed analysis of the calls lasting more than three minutes shows that seventy-six of them lasted over ten minutes, while some lasted over twenty minutes. In terms of the time during which the calls were made, fifty (30% of the calls) were registered during the morning between 9.08 a.m. and 11.58 a.m., while the remaining 117 calls (70%) were registered between 2.30 p.m. and 7.54 p.m. It also transpires that the applicant has availed himself of incoming call times ranging from 10 a.m. to 12.11 p.m. (69% of the calls were registered between 22 May 2012 and 7 December 2013). The rest of the calls (31%) were registered between 2.05 p.m. and 6.44 p.m. He received thirty-five incoming calls in 2012 and 175 in 2013. According to the Government the applicant has never submitted a written request to the director for permission to make calls at 12.15 p.m. 29. The second applicant is currently serving a term of imprisonment for drugrelated offences. He was sentenced to nine years’ imprisonment and fined EUR 23,000 by the Criminal Court on 5 December 2013. 30. From the prison authorities’ records, it transpires that the second applicant is being held in cell no. 130, situated in Division 3 of the Corradino Correctional Facility. While the applicant complained of a lack of living space in the dormitories of ten persons (sic.), the Government argued that he had been occupying the said cell as sole occupant. It does not appear that he has made any prior complaint about his cell or any specific aspect of his detention to the prison authorities, nor has he requested to change cell. 31. The complaint and the general conditions of detention pertaining to the second applicant are the same as described in respect of the first applicant (above), with a few differences as set out below. 32. The second applicant submitted that he generally left his window open. He claimed that it was not possible to open the window by climbing onto the bed. The window was situated 1.5 metres above the sink, and thus it was only by standing on the sink that one could open it. Lighting consisted of a ceiling light and one wall-mounted portable lamp, which he had purchased himself – he had not requested an additional lamp, although inmates were in fact allowed two lamps. 33. According to the second applicant there was often no running water in the cell. However, according to the Government, tap water was available in each cell, including cell no. 130 (photographs submitted). 34. The second applicant received gratuity money amounting to EUR 293.44 during 2012 and EUR 363.35 during 2013, as well as EUR 130.41 during 2012 and EUR 242.19 during 2013 for work carried out by him. 35. The second applicant submitted that he had two fans in his cell. He claimed that in winter the cold was terrible and made him ill. He maintained that he often did not have bed linen or blankets, sometimes not even a bed to sleep on. The Government contested the allegation, asserting that each inmate, including the second applicant, was provided with two sets of bed linen and two blankets, that further blankets were available on request and that beds were a staple in every cell. No record of such a complaint had been found by the Government. 36. According to the Government, the second applicant kept his cell in a disorderly and unkempt state. When the prison authorities, through the correctional supervisor, had brought this to the applicant’s attention, he had replied that the mess was due to his ongoing personal family troubles and he promised to clean his room. 37. The second applicant’s requests for non-essential items have all been granted. 38. A part of cell no. 130 shows signs of dampness, which produces mould (approximately one square metre as transpires from a photograph submitted). The applicant submitted that the photograph was not realistic and that in reality there was mould in a larger part of the cell. This had given him asthma, a condition he had never suffered from before. 39. The Government pointed out that the second applicant had been in receipt of various medicines provided free of charge through the PHS. According to the Government, it transpires from the records held by the authorities that he had been visited forty-three times by a doctor between 5 October 2011 (date of the applicant’s admission on remand) and 23 January 2014. On twenty-nine occasions, prescriptive medicines had been required and in fact fifty medicines had been provided to him. Those medicines had been supplied by the PHS, except for a specific shampoo, where a generic alternative had been provided instead. 40. The second applicant claimed that he had had to purchase some medicines himself. However, according to the Government, that was a choice made by the applicant himself. From the records held by the authorities, it transpires that a number of “self-recommendations” (see paragraph 53 below) were registered on the applicant’s behalf. They concerned ear drops to remove ear wax, Voltaren gel, a number of vitamins and Daktarin powder. 41. Lastly, the second applicant claimed that he had been made to take medicine without any explanations, and that he was not allowed access to the yard. 42. On 30 January 2012 the Criminal Court sentenced the third applicant to twelve years’ imprisonment and to a fine of EUR 23,000 for drugrelated offences. 43. From the prison authorities’ records, it transpires that the third applicant is being held in cell no. 137, which is situated in Division 3. At the time of the introduction of the application he had been in Division 3 for three years and ten months. He has been occupying the said cell as sole occupant. He has never made any complaint relative to his cell or to any specific aspect of his detention to the prison authorities, nor has he requested a transfer from one division to another. The general conditions of detention pertaining to the third applicant are the same as for the other two applicants (above), with a few differences as set out below. 44. According to the third applicant, there was only one ceiling ventilator in his cell, which he claimed did not work. The Government contested that statement. The applicant submitted that there were two portable lamps –the ceiling lamp was controlled centrally and could not be switched on or off as needed. From the photographs submitted it appears that cell no. 137 is kept in a relatively tidy state. The third applicant has been allowed to acquire other non-essential items in the cell. He claimed that they did not require authorisation. He also alleged that one of his personal fans had been removed from his cell after the photographs had been taken. The Government submitted that apart from the ceiling fan, the applicant had another fan in his cell, and that only one box fan per inmate was allowed. 45. According to the Government, an inspection of cell no. 137 conducted by the prison officials did not detect any mould. However, the third applicant submitted that there was some 50 cm of mould around his sink. 46. The third applicant also complained of a lack of running water (contested by the Government) and flushing toilet system. He claimed that the lack of water, particularly the inability to flush the toilet, created unhygienic conditions. Also, the relevant equipment to clean the room was not provided. He alleged that he had been regularly sick because of the tap water in his room and that the doctor had told him that he should not drink it. The Government submitted that according to the doctor’s report (submitted to the Court), the applicant had never complained of bowel problems or complained to the doctor about the tap water. Nor had it been substantiated that he had received such a reply from the doctor. The applicant pointed out that the result of the tests carried out by the Government had not referred to water collected in his room, as no water had been collected. 47. The third applicant received EUR 101.28 as gratuity money during 2011, EUR 363.55 during 2012 and EUR 363.35 during 2013. He also received EUR 18.63 during 2011, EUR 111.78 during 2012 and EUR 93.15 during 2013 (between August and December 2013) for work he had carried out. 48. The third applicant also received various medicines provided free of charge through the PHS. From the records held by the authorities it also transpires that he was visited thirty-one times by a doctor between 26 April 2011 (following the applicant’s admission in detention on remand) and 21 January 2014. On fifteen occasions, the prescription of medicines was required and in fact twenty-eight medicines were provided to him. Those medicines were supplied by the PHS, except for cold-relief tablets and a cream, for which a generic alternative was provided. It transpires that two “self-recommendations” were registered on behalf of the applicant: a pain killer and a cream which was only available free of charge through the PHS if it had been prescribed by a consultant dermatologist, which was not the case for the applicant.
| 0 |
test
|
001-179857
|
ENG
|
UKR
|
COMMITTEE
| 2,018 |
CASE OF KARINGTON 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)
|
André Potocki;Mārtiņš Mits;Síofra O’Leary
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law.
| 1 |
test
|
001-173378
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF DUDNIKOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Branko Lubarda;Dmitry Dedov;Luis López Guerra
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention.
| 1 |
test
|
001-158536
|
ENG
|
UKR
|
COMMITTEE
| 2,015 |
CASE OF ANTIMONOVA 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)
|
Angelika Nußberger;Ganna Yudkivska;Vincent A. De Gaetano
|
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
|
001-164196
|
ENG
|
SVK
|
CHAMBER
| 2,016 |
CASE OF SILÁŠOVÁ AND OTHERS v. SLOVAKIA
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicants all live in Žilina, except for Mr Kyška, Mr P. Lalinský and Ms Vestfálová, who live in Turie, Bytča and Nemecká nad Hronom respectively. 6. The facts of the case are structurally similar to those obtaining in the cases against Slovakia of Urbárska Obec Trenčianske Biskupice (no. 74258/01, 27 November 2007 (merits) and 27 January 2009 (just satisfaction)), Jenisová (no. 58764/00, 3 November 2009), Šefčíková (no. 6284/02, 3 November 2009), and Salus (no. 28697/03, 3 November 2009). 7. The applicants are the owners of land situated in the cadastral area of Závodie on the territory of the municipality of Žilina. They acquired title to this land by way of inheritance from their predecessors. 8. In 1948 the State put the land in question at the disposal of an agricultural cooperative called Mier Žilina-Bánová. In 1987 the cooperative designated part of the land as an “allotment colony”, consisting of individual allotments which were put at the disposal of private third parties (“the gardeners”). 9. The applicants’ ‒ or, at the relevant time, their predecessors’ ‒ formal title to the land has remained unaffected but in practice, they have not been able to make use of it at all. The size of each of the applicants’ individual parcels of land thereby affected is listed in column C of the appendix. 10. In the context of the political changes in the former Czechoslovakia, the Land Ownership Act (Law 229/1991 Coll.) was enacted in 1991. Under section 22(2) thereof, in the absence of any agreement to the contrary with the applicants, the gardeners acquired a tenancy right in respect of the land in question with effect from the date of the Act’s entry into force. 11. The rent payable for such tenancy was regulated under section 22(3) of the Land Ownership Act until this provision was replaced by the Allotments Act, which entered into force on 26 March 1997. 12. The Allotments Act likewise imposed a compulsory tenancy arrangement in favour of the gardeners, the rent being regulated by its section 4, which applied by operation of law unless the parties had agreed otherwise. This provision, as applicable at that time, referred to other pieces of legislation which set the annual rent at ten per cent of the value of the property ‒ calculated on the basis of the then applicable price regulations ‒ the minimum being equivalent to 0.01 Euro (EUR) per square metre and per year. 13. In the applicants’ case, with the exception mentioned below, no such separate agreement had been reached between the parties, and the annual rent payable by the gardeners to the applicants was thus determined under the statutory rules at the lowest limit of the applicable scale, that is to say at a rate of EUR 0.01 per square metre. In the case of the applicant Ms L. Kothajová, an agreement was reached that, as from 2004, she would be paid rent equivalent to EUR 0.01168 per square metre and per year. 14. The applicable statutory regime was amended ‒ after the Court’s above-mentioned judgments had become final ‒ with effect from 1 April 2011 by Law no. 57/2011 Coll., which adjusted the rent payable to owners in a situation such as the applicants’ to a level commensurate with the market rent. By virtue of the statutory amendment, the amount of the rent was to be determined under the Regulation of the Ministry of Justice on Determination of the General Value of Property (no. 492/2004 Coll.). This regulation uses the term “general value” ‒ which is understood to mean the expert assessment of the most likely price at a given place and time on the market in conditions of free competition and honest sale ‒ and lays down formulae for the determination thereof in relation to land and the rent payable for that land, the latter being linked to the former. These formulae take into account what is known as the “general situation index” (“the GSI”), ranging originally from 0.70 to 2.00, normally depending on the geographical location of the property. However, prior to the entry into force of the amendments introduced by Law no. 57/2011, Regulation 492/2004 had been amended by Regulation no. 254/2010 Coll., which took effect from 1 July 2010. The latter Regulation introduced a special GSI ranging from 0.50 to 0.70 to be applied when determining the “general value” of land and the “general value” of the rent for the land in allotment colonies. 15. These amendments left the compulsory tenancy introduced by the Allotments Act unaffected. Such a tenancy arrangement remains in place until the completion of what are known as land consolidation proceedings in a given area. Such proceedings are also provided for under the Act, their aim being to have the ownership and use of the land in the allotment area consolidated, principally by transferring title to the land to the gardeners and having the former owners compensated by means regulated under the Act, the details of such consolidation being defined in what is known as a “land consolidation project”. 16. In the applicants’ case, the gardeners initiated the requisite land consolidation proceedings on 7 December 1998. Within the framework thereof, the order had been given for implementation of a “land consolidation project”, but the proceedings changed course on 7 August 2013 when the Constitutional Court held that the applicants’ inability to have that order reviewed by the courts violated their right of access to a court and their property rights. The land consolidation proceedings are currently pending, at a stage where the general value of the applicants’ land remains to be determined. 17. The compulsory tenancy of the applicants’ land persists. 18. The parties disagreed as to the amount of rent payable for the applicants’ property. Their positions and the documents submitted in their support may be summarised as follows. 19. The applicants relied on report no. 05/2010 dated 29 March 2010, in which a sworn expert, A, estimated the general value of the rent in question by reference to the criteria laid down in Regulation no. 492/2004, and applied a GSI of 1.30. On that basis, the applicants considered that the market value of the annual rent amounted to EUR 2.66 per square metre. Later, the applicants also submitted report no. 169/13 dated 5 November 2013 by another sworn expert, B, according to which the general value of monthly rent for a plot in the stated area belonging to the applicant Mr Leščinský was EUR 0.773 in 2013, EUR 0.782 in 2012, EUR 0.789 in 2011 and EUR 0.752 in 2010. These figures had been estimated on the basis of Regulation no. 492/2004, taking into account the GSI resulting from the amendments introduced by Regulation no. 254/2010. 20. The Government for their part submitted the following documents: ‒ A letter from the Forensic Engineering Institute in Žilina dated 17 December 2012, in which the Institute pointed out what they considered to be methodological flaws in the calculations of expert A. On the basis of their pro forma recalculation of the available data, the value of the annual general rent would be EUR 0.239 per square metre. However, the letter points out that this recalculation was done without a separate in situ investigation and without the examination of further documents that the Institute considered essential. ‒ A letter from the Slovak Real Estate Fund dated 24 April 2013 stating that, at that time, expert valuations of the general value of the land had been obtained for fourteen allotment colonies in the district of Žilina. On the basis of the general value of the land as established in these valuations, which took into account legislative amendment no. 57/2011, the Government contended that the average general value of the annual rent payable for land comparable to the applicants’ was EUR 0.38. ‒ A full expert report drawn up by the Institute in 2014, numbered 86/2014, which had been preceded by the Institute’s own investigations. In this report, drawn up on the basis of amended Regulation no. 492/2004, the Institute calculated the general value of the annual rent payable for the property in question as of 31 March 2014 as EUR 0.718 per square metre. The method provided by Regulation no. 492/2004 could not be used in relation to the preceding periods. In these cases, the Institute assessed the general value of the annual rent for previous years ‒ on the basis of the results for the year 2014, but taking into account the general development of real estate prices in the given region and other economic criteria during those years ‒ as follows: in 2013 EUR 0.716, in 2012 EUR 0.746, in 2011 EUR 0.732, in 2010 EUR 0.745, in 2009 EUR 0.790, in 2008 EUR 1.084, and in 2007 EUR 0.804. Lastly, the Institute reiterated the objections concerning the methodology used in the valuation produced by expert A and expressed the view that he had lacked the requisite qualifications for conducting the particular type of valuation obtaining in the present case, since his qualifications pertained only to agricultural land, and did not extend to include the type of land concerned in the present case.
| 1 |
test
|
001-173467
|
ENG
|
HRV
|
CHAMBER
| 2,017 |
CASE OF FERGEC v. CROATIA
| 4 |
Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)
|
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
|
5. The applicants were born in 1971 and 1974 respectively and live in Sesvete. 6. On 12 December 1996 at about 8.30 p.m. one D.M., a member of the Croatian army, exploded a grenade in a pizza parlour in Zagreb, as a result of which D.M. and one other person died and the second applicant was gravely injured. The first applicant, who worked in a nearby flower shop, came to the scene and found the second applicant lying on the floor, covered in blood. 7. An on-site inspection of the crime scene was carried out on the same evening by the military police and it was videotaped. The report drawn up by them indicates that D.M. was dressed in civilian clothes. During the enquiry the military police took statements from witnesses and on 3 July 1997 sent a report on the incident to the Zagreb County State Attorney’s Office. The relevant part of the report reads: “On 12 December 1996 at about 8.30 p.m. at the N. pizza parlour ... soldier D.M. was consuming alcoholic beverages at the bar in the company of D.Ma., N.F. (an employee of the judicial police) and Ž.B. when all at once [D.M.] took an M-75 hand grenade out of his pocket and pulled out the safety clip and placed the grenade into the hand of waitress T.B., ... who put it on the counter saying ‘What would I need this for?’, whereupon D.[M.], seeing that the grenade had been activated, took it in his right hand and turned sideways from the counter, after which an explosion occurred. [D.M.] was killed on the spot, while D.Ma. and N.F. ... sustained grievous bodily injuries and Ž.B. ... minor bodily injuries. ... The injured were transferred to Dubrava Hospital and D.Ma. died during transport.” No further investigation ensued. 8. On 1 July 1998 the applicants brought a civil action against the State in the Zagreb Municipal Court. The second applicant sought damages in connection with the life-threatening injuries he had sustained in the incident of 12 December 1996, while the first applicant sought damages on account of the stress and fear she had suffered because of the event in question. The applicants argued that D.M. had been on duty at the time when he had exploded the grenade, that he had been dressed in his military uniform and that his mother had obtained a survivor’s pension after his death under a decision which stated that he had died on duty (specifically, “at work”). 9. During the proceedings it was established that the second applicant had sustained numerous injuries to his head, face, chest, belly and lower extremities and that he was suffering from permanent consequences, such as frequent headaches, pain throughout his body, impaired hearing, double vision, fatigue and incapacity for work. 10. Their claim was allowed on 21 June 2002. That judgment was quashed by the Zagreb County Court on 25 April 2005. The first-instance court again allowed the claim on 17 September 2010. However, on 5 April 2011 the Zagreb County Court, after an appeal lodged by the defendant, overturned the judgment and dismissed the applicants’ claim. The relevant part of that judgment reads: “The first-instance court established the following: - D.M. was a member of the Croatian army – a military serviceman; - D.M. used an M-75 grenade, which served a military purpose and was registered for [use by] the members of the Croatian army; - the decision of 12 October 1998 ... issued by the Croatian Pension Fund stated that the mother of D.M., who had been a Croatian Homeland War veteran, obtained the right to a survivor’s pension because [D.M.] had been [serving in the] military when he had caused the damage, and the reasoning of that decision stated that he had died because of an injury sustained at work; - D.M. had not been on duty. On the basis of the thus-established facts the first-instance court concluded that the defendant was liable because the said decision of the Croatian Pension Fund stated that the death of [D.M.], as an active military serviceman, had occurred while [he had been] carrying out his official duties ... The first-instance court also concluded that there had been a failure on the part of the defendant [to carry out a weapons] check under section 14 of the Instruction on the Allocation, Distribution, Carrying and Use of Official Short Weapons. Had the correct check (for which the military police were responsible under section 14 of the above-mentioned Instruction) [been exercised in respect of] the carrying of weapons – namely the grenade [held by D.M.] without a proper licence or an identity document, – and the grenade been taken [from D.M.], the damage most likely would not have occurred. However, this court considers that these facts, as established [by the first-instance court], do not serve as a sufficient basis for concluding that the requirements for the defendant to be held liable for the concrete damage have been met. First of all, D.M.’s parents’ right to obtain a survivor’s pension on the basis of a decision of the Croatian Pension Fund is not decisive for the defendant’s liability for damage since the right to a survivor’s pension was obtained on the basis of D.M.’s status as a Croatian Homeland War veteran – that is to say an insured military person. The fact that the reasoning of that decision ... states that the ‘insured party’s death occurred because of an injury sustained at work’ is not relevant for an assessment of the defendant’s liability in these civil proceedings. An assessment of the facts shows that D.M. was not on duty on the critical evening; that the M-75 grenade was not given to him by his military unit ([according to] a letter from the I Croatian Guard Corps of 12 November 1998); that the record of the on-site inspection carried out on the day of [D.M.’s] death does not show that D.M. was wearing a uniform; and that nothing proved that the grenade in question was the property of the defendant (that D.M. had unlawfully obtained the grenade from the defendant), regardless of the fact that such a grenade serves a military purpose and is registered for [use by] members of the Croatian army; [therefore,] this court finds that the conclusion of the first-instance court regarding ... the liability of the defendant is not correct. Lastly, this court considers ... in respect of the failure of the defendant to carry out a check on the carrying of weapons and to seize [weapons] where there is no licence [to carry them], as the basis of the defendant’s liability, that there is no proof ... that the military police had a duty to carry out a check in the pizza parlour in question on the critical evening or that the competent authorities knew that D.M. possessed a grenade and failed to seize it from him. Therefore, this court finds that the requirements for the defendant’s liability are not met ...” 11. The applicants’ subsequent constitutional complaint of 7 July 2011 was dismissed on 17 June 2014. This decision was served on the applicants on 3 July 2014.
| 1 |
test
|
001-152331
|
ENG
|
UKR
|
GRANDCHAMBER
| 2,015 |
CASE OF BOCHAN v. UKRAINE (No. 2)
| 1 |
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;Alvina Gyulumyan;André Potocki;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Erik Møse;Ganna Yudkivska;Guido Raimondi;Ineta Ziemele;Josep Casadevall;Krzysztof Wojtyczek;Mark Villiger;Paul Lemmens;Paul Mahoney
|
8. The applicant was born in 1917 and lives in Ternopil. 9. The facts of the case, as submitted by the parties, may be summarised as follows. 10. Since 1997 the applicant has claimed, so far unsuccessfully, title to part of a house, owned by Mr M. at the material time, and to the land on which it stands. Her claim is based on the following arguments: that the part of the house in question was constructed at her and her late husband’s expense; that her husband lawfully obtained title to the property, which she subsequently inherited; that it was not sold to Mr M. despite there having initially been an agreement with the applicant’s son to that effect; and that the sales contract on which Mr M.’s claim to the property was based was forged. 11. The applicant’s property claim was considered on numerous occasions by the domestic courts. Eventually, following the reassignment of the case by the Supreme Court to lower courts with different territorial jurisdiction, the applicant’s claim was dismissed. Relying on the statements of 17 witnesses, one of whom was heard in person, and documents submitted by Mr M., the courts at two levels of jurisdiction found that Mr M. had bought the foundations of the part of the house in question from the applicant’s son in 1993 and had subsequently built it at his own cost. Mr M., accordingly, was the lawful owner of that part of the house and had the right to use the land on which it had been constructed. The final decision, upholding the rulings of the lower courts, was taken by the Supreme Court on 22 August 2002. 12. On 17 July 2001 the applicant lodged an application with the Court, complaining in particular of unfairness in the domestic court proceedings concerning her claim. She also complained about the length of the proceedings and alleged a violation of Article 1 of Protocol No. 1 to the Convention taken alone and in conjunction with Article 14 of the Convention on account of their outcome. 13. On 3 May 2007 the Court delivered a judgment in the case, which became final on 3 August 2007. The Court held that there had been a violation of Article 6 § 1 of the Convention, having regard to the circumstances in which the applicant’s case had been reassigned by the Supreme Court and to the lack of sufficient reasoning in the domestic decisions, these issues being taken together and cumulatively (see Bochan, cited above, § 85). 14. The Court reasoned as follows: “74. ... [The] reassignment [of the applicant’s case] was ordered by the Supreme Court after having expressly disagreed with the findings of the lower courts as to the facts and having stated its position concerning one of the principal aspects of the case ... even before the new assessment of facts and taking of evidence by the lower courts took place ... Considering in addition the Supreme Court’s failure to provide reasons for the reassignment, the Court is of the opinion that the applicant’s fears that the judges of the Supreme Court, including its Deputy President, had a prefixed idea concerning the outcome of the case and that the judges to whom the case had been transferred on 9 October 2000 would have to consider the case in accordance with the Supreme Court’s view could be held to be objectively justified. 75. The Court considers that this overall procedural situation also disturbed the principle of legal certainty (see Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003IX). The fact that the Supreme Court’s views on the subject of the applicant’s case differed from those of the lower courts could not be a sole ground for its repeated re-examination. Higher courts’ power of review should be exercised for correction of judicial mistakes, miscarriages of justice, and not to substitute the lower courts’ assessment of facts.” 15. The Court further noted that the domestic courts had afforded no reply to the applicant’s submissions concerning the reliability of the witnesses’ statements and the validity of the documentary evidence, which had been decisive for the outcome of the case (see Bochan, cited above, §§ 81-84). 16. Relying on the above findings under Article 6 § 1 of the Convention, the Court decided that it was not necessary to rule on the applicant’s complaint based on Article 1 of Protocol No. 1, as it raised no distinct issue (see Bochan, cited above, § 91). 17. The applicant’s complaints about the length of the proceedings and a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention were dismissed as unsubstantiated (see Bochan, cited above, §§ 87 and 93). 18. The applicant was awarded EUR 2,000 by way of just satisfaction in respect of non-pecuniary damage. The Court also noted “that the applicant was entitled under Ukrainian law to request a rehearing of her case in the light of the Court’s finding that the domestic courts had not complied with Article 6 in her case” (see Bochan, cited above, §§ 97 and 98). 19. To date, the Committee of Ministers of the Council of Europe has not yet concluded the supervision of the execution of the judgment under Article 46 § 2 of the Convention. 20. On 14 June 2007 the applicant lodged with the Supreme Court an “appeal in the light of exceptional circumstances” pursuant in particular to Articles 353-355 of the Code of Civil Procedure of 2004 (see paragraph 24 below). Relying on the Court’s judgment of 3 May 2007, she asked the Supreme Court to quash the courts’ decisions in her case and to adopt a new judgment allowing her claims in full. She joined to her appeal copies of the Court’s judgment and of the domestic decisions. 21. On 14 March 2008 a panel of 18 judges of the Civil Division of the Supreme Court, having examined the appeal in chambers and relying on Article 358 of the Code of Civil Procedure of 2004 (set out in paragraph 24 below), dismissed the applicant’s appeal. The relevant part of the Supreme Court’s decision reads as follows: “By the judgment of 3 May 2007, the European Court of Human Rights declared the applicant’s complaints of unfairness in the proceedings and of a violation of Article 1 of Protocol No. 1 admissible, and the remainder of the application inadmissible. A violation of Article 6 § 1 of the Convention ... was found in the case. [The Court] ordered that the respondent State was to pay the applicant, within three months from the date on which the judgment became final according to Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage ... In paragraph 64 of the judgment of the European Court of Human Rights, it is noted that the applicant’s submissions mainly concern four issues, namely: (a) whether the courts, which dealt with [the applicant’s] case, were independent and impartial; (b) whether the fact that the case was heard by the Chemerovetsk Town Court prevented the applicant from participating in the proceedings; (c) whether the principle of equality of arms was observed with regard to the failure of the domestic courts to hear the witnesses whose written statements the courts admitted as evidence; (d) whether the final decisions given by the courts of first, appeal and cassation instances were sufficiently substantiated. As can be seen from the case materials, the applicant was represented in the [domestic] proceedings by her son, a lawyer ... During the entire duration of the proceedings she failed to appear before the court, although she was duly informed of the hearings. None of those taking part in the case, including Mr B.I. [the applicant’s son], asked for the witnesses to be summoned ... Mr B.I. failed to submit witness statements ... capable of proving that the house was constructed at his (or his father’s or his mother’s) expense. None of the parties, including Mr B.I., sought the withdrawal of the [first-instance] judge. Complaints of the court’s lack of objectivity ... were only raised by Mr B.I. after the judgment had been adopted in the case. As can be seen from the case materials, the validity of the sales contract of 18 March 1993, according to which Mr M. purchased from Mr B.I. half of the foundations and some of the construction materials, was not challenged ... There is also a document confirming that the left-hand side of the house was constructed at Mr M.’s expense and a document according to which Mr M. paid Mr B.I. 1,550,000,000 karbovanets [the former transitional currency of Ukraine before September 1996] for the foundations of the left-hand side of the house. These circumstances were not refuted by the expert examination in the case. In its judgment, the European Court of Human Rights also noted that the applicant ... had failed to provide evidence that she had suffered discrimination in the enjoyment of her property rights, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1, on account of the outcome of the civil proceedings. [The Court] concluded that the applicant’s complaints [under these provisions] were to be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. Therefore, the European Court of Human Rights concluded that the [domestic] courts’ decisions were lawful and well-founded and decided to award the applicant compensation in the amount of EUR 2,000 only for the violation of the ‘reasonable-time’ requirement by the Ukrainian courts. In the light of the foregoing, the courts’ decisions in the case may not be quashed on the grounds mentioned in Mrs Bochan’s application. Relying on [Article] 358 of the [Code of Civil Procedure of Ukraine], the panel of judges of the Civil Division of the Supreme Court of Ukraine [Decided]: To refuse to allow the appeal [of Mrs Bochan M. I.] for review in the light of exceptional circumstances of the judgment of 19 January 2001 of the Chemerovetsk Town Court of the Khmelnytsk Region, the decision of 1 March 2001 of the Khmelnytsk Regional Court of Appeal and the decision of 22 August 2002 of the Supreme Court of Ukraine.” 22. On 8 April 2008 the applicant lodged a new “appeal in the light of exceptional circumstances” with the Supreme Court. She argued that the decision of 14 March 2008 had been based on an incorrect “interpretation” of the Court’s judgment of 3 May 2007 and requested the Supreme Court to reconsider the merits of the case in the light of the Court’s findings under Article 6 § 1 of the Convention in that judgment as noted in paragraph 15 above. 23. On 5 June 2008 a panel of seven judges of the Civil Division of the Supreme Court, relying on Article 356 of the Code of Civil Procedure of 2004, declared the appeal inadmissible, as it contained no arguments capable of serving as grounds for reconsideration of the case in the light of exceptional circumstances pursuant to Article 354 of the Code of Civil Procedure of 2004 (see paragraph 24 below for the text of Article 354 and for the relevant extracts from Article 356 of the Code).
| 1 |
test
|
001-178341
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF TURISHCHEV 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)
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Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
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4. The applicant was born in 1955 and lives in Moscow. 5. On 27 August 2002 the applicant brought civil proceedings against the Administration of the Mirninskiy Ulus of the Sakha (Yakutiya) Republic (“the Administration”), a private person S., her husband B., and a private company A. claiming a title to a flat, damages, and S.’s eviction from the flat. 6. On 18 September 2002 the Mirninskiy District Court of the Sakha (Yakutiya) Republic (“the District Court”) refused to consider his action, because there already had been a decision of 6 February 2001 taken by the District Court concerning the same dispute. 7. On 13 November 2002 the Supreme Court of the Sakha (Yakutiya) Republic overruled the refusal and remitted the case for a new examination, as the action included a new co-defendant, and, therefore, it could not be said that the dispute was among the same parties. 8. On 15 January 2003 the District Court ordered eviction of S. and her family from the flat and dismissed the claim against the Administration. 9. On 3 March 2003 the Supreme Court of the Sakha (Yakutiya) Republic quashed the judgment on appeal and returned the case for a fresh examination, as the lower court had failed to address issues related S.’s property rights. 10. On 29 July 2003 the District Court ordered an expert examination of the flat in order to determine its market value. 11. On 14 August 2003 the court proceedings resumed. 12. In the meantime, the applicant amended his claims and sought to obtain compensation for his belongings allegedly stolen in 1999, nonpecuniary damage, legal costs, travel expenses and reimbursement of the rent he had to pay after his eviction from the disputed flat back in 1999. 13. On 29 August 2003 the District Court examined the case, ordered the Administration to pay the applicant 800,000 Russian roubles (RUB) in respect of the flat’s market value and dismissed the remainder of the claims. In particular, the claim for compensation for the allegedly stolen property was dismissed as unfounded. 14. On 20 October 2003 the judgment was upheld on appeal by the Supreme Court of Sakha (Yakutiya) and entered into force. 15. On 11 June 2004, upon the applicant’s request, the bailiffs initiated the enforcement proceedings. 16. On 27 August 2004 the District Court granted the Administration’s request for suspension of the enforcement of the judgment of 29 August 2003 until 15 January 2005 due to financial difficulties encountered by the debtor. 17. On 15 November 2004 the applicant’s appeal against the above decision was dismissed. 18. On 18 March 2005 the monetary award in accordance with the judgment of 29 August 2003 was paid to the applicant. 19. On 29 September 2005, upon the applicant’s extraordinary appeal, the Presidium of the Supreme Court of Sakha (Yakutiya) quashed the judgment of 29 August 2003 and the decision of 20 October 2003 and remitted the case for a fresh examination. The Presidium found that the courts had incorrectly applied the material law to various aspects of the case, and had failed to join the appropriate financial body as co-defendant. 20. It appears that the amounts paid to the applicant under the quashed judgment of 29 August 2003 have not been reclaimed. 21. On 15 November 2005 the District Court suspended the proceedings, due to B.’s illness and asked the applicant to clarify his claims. 22. On 21 December 2005 the applicant submitted the amended claims. 23. On 16 February 2006 the District Court joined, at the defendant’s request, the Ministry of Finance as co-defendant in the proceedings and suspended the examination of the case on account of B.’s poor state of health. 24. On 14 February 2007 the case was assigned to a different judge of the District Court, for the sake of the court’s impartiality. 25. On 21 March 2007 the District Court dismissed the applicant’s action. 26. On 4 June 2007 the Supreme Court of Sakha (Yakutiya) upheld the judgment on appeal except for the parts concerning the eviction of S. and B., reimbursement of the rent, payments for utility services, a commission fee, and recovering of the cost of the apartment. The decision in those parts was remitted for a fresh examination due to failure by the lower court to assess certain evidence and misapplication of the material law. 27. On 27 August 2007 the District Court suspended the proceedings pending S.’s return from vacation. 28. On 26 October 2007 the court ordered the applicant to clarify his claims and scheduled a new hearing on 23 November 2007. 29. On 23 November 2007 the court issued a special writ ordering the bailiffs to obtain clarifications of the claims from the applicant. 30. It appears that at some point the applicant provided the required information. 31. On 30 April 2008 the District Court dismissed the action as unfounded. The court explained that the applicant had other remedies to use under the civil law in order to protect his property rights. In particular, he could claim that an equivalent apartment or a compensation be provided to him. 32. By the final judgment of 13 August 2008 the Supreme Court of Sakha (Yakutiya) upheld the lower court’s findings on appeal. 33. In the meantime, the applicant sued the Administration for statutory interest for the delay in enforcement of the judgment of 29 August 2003. 34. On 7 February 2007 the District Court discontinued the proceedings as the judgment of 29 August 2003 had been quashed and a new decision in the case had not yet been adopted.
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test
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001-173098
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ENG
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RUS
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CHAMBER
| 2,017 |
CASE OF OOO IZDATELSKIY TSENTR KVARTIRNYY RYAD v. RUSSIA
| 3 |
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)
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Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
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5. At the material time the applicant company was the publisher of Kvartirnyy Ryad, a newspaper specialising in coverage of the housing market in the Moscow area (“the newspaper”). 6. On 20 May 2004 the newspaper published an article by G. entitled “So sorry for the bird. The blue one” («А птичку жалко. Синюю» – “the article”). The article described a conflict situation concerning a large commonhold association, Bluebird (Синяя птица), which included eight blocks of flats in the south-west of Moscow. G. suggested in the article that a number of residents of the Bluebird flats had been affected by the alleged misuse of common areas, in particular attics in the blocks of flats and that T., the head of the commonhold association, had been behind the misuse. G. emphasised that T. was also the deputy head of a district council in Moscow and that he had declined to comment on the article’s contents prior to publication. The article asked T. and the local government questions pertaining to the misuse of the common areas. 7. The relevant parts of the article read as follows: “Residents of eight blocks of flats in Severnoe Butovo keep sending letters to the courts, the prosecutor’s office, the city administration and even President Putin to complain about the head of the “Bluebird” commonhold association, T., [w]ho has developed an indecently hasty business activity spitting in the face of the association’s Charter and a number of regional and federal laws. ... ... But T. has expressed his distrust in the commission elected by the general meeting and has appointed his own commission...as a result T. has managed to retain his position ... ... the commission was not elected, but appointed, which guaranteed the appointment of T. for a third term ... ... In sum, even though T. did not have the majority of the votes, he nonetheless managed to conclude the contract ... ... let’s ask one final question, which again pertains to T.: does a State official have the right to combine his official functions with a commercial business activity?” 8. On 28 May 2004 T. lodged a defamation claim against the applicant company and G. with the Presnenskiy District Court of Moscow (“the District Court”). The plaintiff alleged that the statements contained in the article damaged his honour, dignity and business reputation. The court received the statement of claim on 15 June 2004. 9. On 8 December 2004 the District Court examined and partially allowed the claim, referring to Article 152 of the Civil Code and Resolution no. 11 of the Plenary Supreme Court. It reasoned: “... the impugned statement: “... who [has] developed an indecently hasty business activity spitting in the face of the commonhold association’s Charter and a number of regional and federal laws” should be retracted [by the defendants] ... as during the judicial examination of the case the defendants failed to prove that T.’s actions were unlawful. The defendants, a third party and witnesses explained that an attic ... had been unlawfully rented out. The lease agreement had been unlawfully concluded by T. ... However, no evidence has been provided [by the defendants] to the court to prove that the plaintiff’s actions were unlawful or illegal or in violation of federal and regional law or the commonhold association’s Charter. Moreover, the issue of the lease of the attic ... was examined by the Zyuzinskiy District Court of Moscow. By the decision of the Zyuzinskiy District Court of Moscow of 19 May 2004 actions of the Bluebird commonhold association headed by T. were found to be in compliance with the law in force. As to the statements: “... the commission was not elected, but appointed, which guaranteed the appointment of T. for a third term ... In sum, even though T. did not have the majority of the votes, he nonetheless managed to conclude the contract ...” ... They are not to be retracted as they are not damaging to the honour and dignity of the plaintiff. ... as to the statement: “let’s ask one final question, which again pertains to T.: does a State official have the right to combine his official functions with a commercial business activity?” It should not be retracted either as ... the author of the article [G.] is asking a rhetorical question ...” 10. The District Court ordered the applicant company “to refute the statement [published] in the newspaper Kvartirnyy Ryad on 20 May 2004 ... that T. developed activities as the head of the “Bluebird” commonhold association, violating the association’s Charter as well as a whole range of laws of the capital area and federal law”. It also awarded T. non-pecuniary damages: 10,000 Russian roubles (RUB – approximately 270 euros) to be paid by the applicant company and RUB 8,000 to be paid by G. 11. The applicant company and G. appealed against the judgment to the Moscow City Court (“the City Court”). 12. On 4 May 2005 it upheld the judgment of 8 December 2004 in full, referring to Article 152 of the Civil Code and to Resolution no. 11 of the Plenary Supreme Court. It provided the following succinct reasoning: “The plaintiff has proven the fact that the contested statements were disseminated: he provided the court with an original issue of the newspaper of 20 May 2004 ... ... the court [of first instance] rightly held that the defendants had failed to prove the veracity of the disseminated statement ... that [the plaintiff] had developed an indecently hasty business activity spitting in the face of the association’s Charter and the law. At the same time, the court [justifiably] referred to the judgment of the Zyuzinskiy District Court of Moscow ... which found the actions of the commonhold association ... headed by T. to be in compliance with the law in force.” 13. On 25 July 2005 the City Court rejected a request by the applicant company for supervisory review. 14. On 13 October 2005 the enforcement proceedings were terminated by a bailiff as the judgment of 8 December 2004 had been enforced in full.
| 1 |
test
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001-155000
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ENG
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TUR
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CHAMBER
| 2,015 |
CASE OF KYRIACOU TSIAKKOURMAS AND OTHERS v. TURKEY
| 3 |
Preliminary objection joined to merits and dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
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András Sajó;Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano
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6. The applicants were born in 1962, 1967, 1989, 1996, 1998, 1942, 1944, 1946, 1947, 1949, 1955, 1957 and 1960 respectively, and live in Larnaca, Nicosia and Famagusta. The first and second applicants are husband and wife. The third, fourth and fifth applicants are their children. The sixth to thirteenth applicants are the five brothers and three sisters of the first applicant. 7. On 1 December 2000 a Turkish Cypriot named Ömer Gazi Tekoğul was arrested by the police of the Republic of Cyprus in possession of two kilograms of heroin. His arrest brought protests from the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”), who alleged that he had been unlawfully arrested in the buffer zone controlled by the United Nations Peacekeeping Force in Cyprus (“the UNFICYP”), where neither the Greek Cypriot nor the Turkish Cypriot side was allowed to exercise authority. There were reports that Mr Tekoğul’s vehicle had allegedly been found abandoned by the Turkish Cypriot authorities inside the United Nations (“UN”) buffer zone, with its engine running and headlights on. The Republic of Cyprus authorities maintained that the arrest had been effected within their jurisdiction just outside the buffer zone. 8. On 8 December 2000 Mr Tekoğul was charged with drug possession and smuggling, and was remanded in custody by the Larnaca District Court in the Republic of Cyprus. 9. According to a report of the UN Secretary General dated 30 May 2001 on the UN operation in Cyprus, UNFICYP’s own investigation into the incident had not yielded sufficient evidence to confirm or refute either version of the events regarding the arrest of Mr Tekoğul. 10. In the meantime, on 20 March 2001 Mr Tekoğul was sentenced to ten years’ imprisonment by the Larnaca Assize Court on various drugrelated charges, but was subsequently pardoned by President Clerides and released on 28 September 2001. 11. The first applicant is a building contractor. At the time of the events giving rise to this application, he owned a construction company, Panicos Tsiakkourmas and Company Ltd., which employed workers from both sides of the island. 12. Like many other Greek Cypriot contractors employing Turkish Cypriot workers, the first applicant picked up his Turkish Cypriot workers each morning from a café (“Rabiye’s café”) located in the Sovereign Base Area (“SBA”) of Dhekelia in the vicinity of the Pergamos checkpoint, where people crossed from the “TRNC” to the SBA. The first applicant would collect his Turkish Cypriot workers from the café every weekday morning at approximately 5.45 to 6 a.m. and would drive them to work. At the end of the working day, he would drop them off at the same location. 13. The events that took place on the morning of 13 December 2000, which resulted in the first applicant’s detention by the “TRNC” authorities, are disputed between the parties. They will therefore be presented separately. 14. At approximately 5.30 a.m. on 13 December 2000 the first applicant left his house in the village of Livadhia in Larnaca to collect his Turkish Cypriot workers from Rabiye’s café in his red Chevrolet double-cabin pickup, as he did every workday. Since it had rained heavily the night before, parts of the road were flooded, which forced him to drive slowly. The heavy rain had stopped by the morning, but it was still drizzling when he left the house. 15. On the main road from Pyla to Pergamos leading to Rabiye’s café, the first applicant noticed five to six metres ahead of him a white Isuzu pickup with the registration number UJ 100, which he recognised as belonging to a fellow Greek Cypriot contractor (V.Z.). As he was driving slowly behind that vehicle in the left-hand lane, the first applicant noticed further down the road another car, a red Renault, which had pulled up on the left side of the road just before the exPergamos camp junction, approximately 500 metres before Rabiye’s café. The bonnet of the red car was open and two men in civilian clothes were checking the engine. 16. The white pickup driving in front of the first applicant slowed down as it approached the red Renault and the driver rolled down his window to talk to the two men. While one of the men continued to check the car’s engine, the other one waved the driver of the white pickup to move along. 17. As the first applicant approached the stationary red Renault, another car, a white Renault which he had not previously noticed, emerged from the junction on the left-hand side and started heading towards him at full speed. The first applicant swerved his car to the right to prevent a collision and then applied the brakes. The white Renault also stopped right in front of his car and four men in civilian clothes leapt out. The first applicant then noticed that the white Isuzu pickup travelling ahead of him had also stopped, probably to check what was happening behind. In a matter of seconds, one of the men who had leapt out of the white Renault opened his driver’s door, shouted some words in Turkish and put a gun to his forehead, while another tried to pull him out of the car. When the first applicant resisted, holding tight to his unfastened seat belt, the man holding the gun hit him on the head above the left ear with the handle of his gun, which caused him to fall down on the road into a puddle of rainwater measuring 20 to 25 cm, in a semi-conscious state as a result of the force of the blow. The men kicked and punched him on the ground, and twisted and bit his hands to force him to let go of the seat belt, while the first applicant called for help. After receiving some forceful kicks below the pelvis and to the ribs, which were so strong that he thought his ribs were broken, he let go of the belt and rolled on the ground. The four men then picked him up by the arms and legs and dragged him to the white Renault, which was a left-hand drive car. The first applicant estimated that the whole ordeal, which had started at approximately 5.45 a.m., had lasted less than three minutes, and it had been witnessed by the driver of the white Isuzu pickup travelling ahead of him. 18. Once inside the car, with both his arms twisted behind his back, the first applicant received another strong kick from the man who was holding him by the right arm. The man holding the pistol sat in the front passenger seat and continued to point the pistol at him. They then started driving towards the Pergamos checkpoint. When the first applicant noticed that the right passenger door of the car was not fully closed, he started pushing the man to his right with his shoulder so that they would fall out of the car. As they were passing Rabiye’s café, the first applicant saw a group of people standing outside and called out for help from the slightly open door, but he could not manage to attract their attention. 19. When the car reached the Pergamos checkpoint, the first applicant noticed that the barrier, which was normally down, had been lifted so that they were able to drive straight through to the “TRNC” without slowing down. After driving in the occupied area for a while, the man sitting to the first applicant’s left placed a rope around his neck and tied his hands behind his back with the ends of the same rope, which prevented him from moving. When the applicant asked whether they were going to kill him, the same man answered yes and then the man sitting in the front passenger seat punched him in the face, which damaged his teeth and caused his mouth to bleed. 20. The first applicant could not understand the conversation in the car, which was in Turkish, except for the word “police”, which was uttered frequently. Since he had lived in the occupied area until he was twelve years old, he recognised that he was being driven towards Famagusta. Once they reached the Famagusta industrial area, the car stopped, and the man sitting in the front passenger seat took off his sock and taped it around the first applicant’s eyes, and then taped his mouth. A couple of minutes later, the first applicant heard another car drive up to them. He was quickly transferred to the other car, with his hands still tied behind his back with the rope that ran around his neck. After driving for another five to seven minutes the second car stopped and he was taken out of the car. He was subsequently taken into a building and put in a room on his own, where he waited for quite some time with his eyes and mouth taped, and his hands tied behind his back. 21. After a while, someone untied the rope around the first applicant’s hands and neck, but left his hands cuffed behind his back, and removed the tape from his mouth. He was then asked personal questions regarding himself and his family, including whether he had any relatives working in the police force or the army. No one explained to him where he was or why he was being held. The person who spoke to him alternated between broken Greek and English. His captors then made him sit in front of an electric heater so that he might dry, as his clothes were all wet from falling into the puddle of water outside his car during the struggle prior to his abduction. 22. When his captors eventually removed the sock from his eyes, the first applicant noticed that he was in an office, and the time was 11.55 a.m. Three men in civilian clothes, whom he had not seen before but later discovered to be Subinspector Ü.Ö. and police sergeants R.Ö. and H.M., were standing in front of him. When he asked them in Greek why he had been seized, one of them replied in broken Greek that he had been arrested for drug possession. They then gave him a fresh set of clothes and shoes and asked him to change out of his wet clothes. The first applicant suspected that he was in a police station, but his captors continued to conceal his whereabouts and the identity of the three persons interrogating him. 23. After changing into new clothes, the first applicant was led out of the building by the three men. In the reception area of the building, he saw police officers in uniform, which reinforced his assumption that he had been taken to a police station. He was subsequently taken to a hospital in Nicosia by two of his interrogators. 24. The first applicant was first examined by a doctor at the hospital in the presence of the two men who had taken him there. As the doctor did not speak English or Greek, they relied on the officers’ interpretation to communicate. The first applicant explained to the doctor that he was diabetic and asked the doctor to check his blood sugar levels. Tests showed that his blood sugar level had increased considerably, so the doctor prescribed him an antidiabetic drug. The first applicant also tried to tell the doctor that he was suffering from pain in his pelvis and ribs, and in particular that the pain in the ribs was making it difficult to breathe, but the doctor paid no attention to his grievances and merely registered the swelling in his head and some redness on his chest and back, without examining the injuries in his mouth or lower body. 25. The first applicant was subsequently referred to a radiologist, who Xrayed his chest and head. He was also examined by a specialist in pulmonary diseases. He was then taken for a drug test. When the first applicant refused to take the drug test and requested to see UN doctors instead, one of the men escorting him punched him in the stomach. It is not clear whether a drug test was subsequently performed on the first applicant. 26. Following the examinations at the hospital, which lasted about two hours, the first applicant was taken to another building, where he was again placed in an office. In that office, the men handling him showed him a black plastic bag with Turkish writing on it, and told him that the bag contained the drugs recovered from him. However, after some discussion among themselves, one of them went out of the room and came back with another black plastic bag, which bore no writing, and placed the drugs allegedly recovered from him in the new bag. They then placed the bag in a plastic container and sealed it before his eyes. 27. At approximately 5.30 p.m., the first applicant was taken to yet another small office in a nearby building. There were six men in the office, including the two who had been escorting him and two interpreters. The men were speaking to each other in Turkish, without translating for him, and drinking tea; the first applicant did not understand where he had been taken. One of the interpreters then told him in broken Greek that he was before a judge, who had charged him with possession of drugs, and that he would be placed in custody for eight days. For the brief period he was in that room, the first applicant was not given the opportunity to respond, apart from stating that he had no involvement with drugs, or to ask questions; he was not informed of his rights, nor was he asked whether he wanted the assistance of a lawyer. 28. The first applicant was subsequently taken to the Atatürk Square police station (referred to as the “Saray police station”) in Nicosia and placed in a very small cell, measuring approximately 1.80 by 1.20 metres, where he stayed for the next eight days. The cell was very cold, damp and mouldy in parts, because there was no glass in the small window. Despite the cold, he was given only one filthy blanket to keep warm. There were, moreover, no shower facilities in the police station. As for the toilets, they were very dirty; no soap or toilet paper was provided and the toilet did not flush. The first applicant had to call an officer each time he needed to use the toilet, and on many occasions he was not let out of his cell to go to the toilet, despite his need to urinate frequently on account of his diabetes. He solved the problem by urinating in a plastic bottle inside his cell. The first applicant further stated that he had not been given any food at the Saray police station and that he had had to purchase food from the canteen with his own money. 29. The first applicant claimed that the next day, a Turkish Cypriot detainee at the Saray police station approached him and told him in Greek that the police had asked him to confess to being the person who would pick up the drugs that the first applicant had intended to hide in the “TRNC”, but that he had refused to collaborate with the police. 30. At 3 p.m. on 14 December 2000 the first applicant was visited by a UN inspector and a doctor. The inspector issued an incident report following the visit, the relevant parts of which read as follows: “During the visit the prisoner, who is a diabetic, stated that he had no complaints in relation to how he had been treated by the TCPE [Turkish Cypriot Police Element] but that he had been assaulted i.e. punched and kicked by six civilians and had been threatened with a gun by them a short time before his arrest by the TCPE. He stated that his arrest had occurred in the Dekelia [sic.] area. Since his arrest he had been taken to the Hospital by the TCPE where he was administered some drugs for his diabetes. He requested the UN to secure his own clothes for him, to deliver his Diabetes Monitoring Kit to him and also to arrange a visit for his wife. He further stated that he did not do anything and that he was kidnapped at Dekelia. He was in a distressed state. He consented to a medical examination by the UN doctor who found a number of tender areas with no bruising.” 31. On 15 December 2000 the first applicant was visited at the Saray police station by a Turkish Cypriot lawyer, Mr M. Aziz, who was appointed by his family to represent him. The meeting was monitored by a number of police officers. On 16 December 2000 another Turkish Cypriot lawyer, Mr G. Menteş, visited him and they met, once again, in the presence of police officers. The first applicant claimed that all his subsequent meetings with his lawyers at the Saray police station had been held in the presence of police officers or other prison authorities. 32. The Government’s version of the events is based on the incident reports prepared by Sub-inspector Ü.Ö., who allegedly led the operation for the first applicant’s arrest. 33. According to Sub-inspector Ü.Ö.’s report, on 12 December 2000 he received a tip-off call from a police informant, informing him that a Greek Cypriot named “Panayotis” would enter the “TRNC” through the SBA of Dhekelia the next morning with narcotics, which he would hide in a predesignated spot just outside the Turkish cemetery to the west of the Pergamos checkpoint, to be picked up by a contact from the “TRNC”. 34. At approximately 4.45 a.m. on 13 December 2000 Sub-inspector Ü.Ö., accompanied by police sergeants R.Ö. and H.M., took their positions in the vicinity of the drop-off point to wait in ambush. At around 6.05 a.m., before daybreak, they saw someone approaching on foot from the direction of the SBA, approximately seventy metres to the west of the Pergamos checkpoint. It was believed that this person, who was later identified as the first applicant, had crossed the ditch which ran along the boundary between the “TRNC” and the SBA and which was filled with rainwater at the relevant time, and then jumped over the wire fence between boundary stones nos. 96 and 97, where parts of the fence had shrunk. As the first applicant was walking towards an olive tree in the designated area, Sub-inspector Ü.Ö. came out of his hiding place and ordered him to stop, in Turkish. Upon hearing that order, the first applicant started to run back towards the SBA; however, the two police sergeants caught up with him and seized him after a struggle, during which the applicant fell to the ground. The sub-inspector then grabbed the package that the first applicant was holding in his hands, which was wrapped in a black plastic bag. In the meantime, Sergeant H.M. informed the first applicant in Greek that they were police officers and told him that he had entered “TRNC” territory without permission. He also asked the first applicant to identify himself and to explain what he was carrying in the plastic bag. The first applicant gave his name and stated that he was innocent. The police officers then handcuffed him and placed him in the police car. Once inside the car, the police officers opened the plastic bag and found two plates of cannabis resin wrapped in a white cloth and a Greek newspaper. Sergeant H.M. informed the applicant once again, in Greek, that he had entered “TRNC” territory without permission and that he had in his possession prohibited drugs. 35. At approximately 6.50 a.m. the first applicant was taken to the Famagusta (Gazimağusa) police headquarters for an identity check, where he was also questioned about where he had obtained the drugs and to whom he was taking them in the “TRNC”. The first applicant remained silent in response to those questions. 36. At approximately 8.30 a.m. Sub-inspector Ü.Ö. and Sergeant H.M. went to the narcotics bureau of the Nicosia (Lefkoşa) police headquarters to inform their superiors of the first applicant’s arrest, while the first applicant stayed at the Famagusta police headquarters under the supervision of Sergeant R.Ö.. After going to the narcotics bureau, Sub-inspector Ü.Ö. and Sergeant H.M. went back to the scene of the incident, where Subinspector Ü.Ö. sketched a map of the area and another sergeant took photographs. Sub-inspector Ü.Ö. also took a soil sample from the area for forensic analysis. 37. At approximately 11.30 a.m. Sub-inspector Ü.Ö. and Sergeant H.M. went back to the Famagusta police headquarters, and took the first applicant’s clothes and shoes as evidence. 38. At approximately 12.50 p.m. the first applicant was taken to the Dr Burhan Nalbantoğlu State Hospital (“the Nicosia State Hospital”) for a general medical examination. After the examination, he was taken to the narcotics bureau of the Nicosia police headquarters, where the material which was obtained from him earlier and which was believed to be cannabis resin was sealed in his presence, to be dispatched to the laboratory for further examination. The first applicant’s shoes, together with the soil sample collected from the area where he was believed to have crossed into the “TRNC”, were also sealed before his eyes for forensic analysis. 39. Later the same evening, the first applicant was brought before the “TRNC” Nicosia District Court, where the presiding judge ordered his remand in custody for eight days to facilitate the police investigation. The hearing was held in the judge’s office and the applicant was assisted by two interpreters. 40. According to the detailed incident report prepared by Sub-inspector Ü.Ö., on the night of 13 December 2000 various measures were taken in the area where the first applicant had been arrested to catch the person who was supposed to pick up the drugs, but no one showed up. 41. The analysis report of 18 December 2000 drawn up by the Ministry of Health and Environment of the “TRNC” confirmed that the substance allegedly seized from the first applicant was cannabis resin, in the amount of 1.1 kilograms. 42. According to the report of the Ministry of Agriculture and Forestry of the “TRNC” dated 2 January 2001, various different kinds of soil were found under the first applicant’s shoes, while the muddy specimen found on the heel appeared to be the most recent. The amount of soil extracted from the heel was not found to be sufficient for a comprehensive analysis. Nevertheless, the limited examinations conducted revealed that the sample obtained from the shoes resembled the sample obtained from the scene of the incident, without, however, being identical. The report indicated that variations in soil properties could be due to the depth from which the soil sample had been obtained, or whether it had been obtained from a fertilised part of the land or not. 43. On 21 December 2000 Sub-inspector Ü.Ö. informed the first applicant of the charges against him, which were the possession of 1.1 kilograms of cannabis resin and its unlawful import into the “TRNC”. The first applicant, who was provided with an interpreter, used his right to remain silent, merely stating that his lawyer would defend him. However, he refused to sign a written statement to that effect. 44. Later the same day, the first applicant was brought before the “TRNC” Nicosia District Court for a bail hearing, where he was represented by two lawyers, Mr M. Aziz, a local lawyer practising in “TRNC”, and Mr P. Brogan, who practised at the English Bar. He was also assisted by an interpreter. At the hearing, the prosecution requested the court to order the first applicant’s detention until the trial in view of the risk of his absconding, and called Subinspector Ü.Ö. as a witness. 45. The first applicant’s counsel pleaded in favour of his release, and also argued that he had not been arrested in “TRNC” territory as alleged, but had been abducted from SBA territory by unknown persons and then taken to the “TRNC” after being badly beaten. The assault had left injuries on his body, as documented in various medical reports. The first applicant did not make any additional comments on his alleged ill-treatment, but merely stated that he would appear for trial if he were released on bail. 46. Sub-inspector Ü.Ö. denied the allegation that the first applicant had been assaulted and stated that the injuries observed on his body might have been caused as a result of the resistance he had shown to his arrest. 47. At the end of the hearing, the “TRNC” Nicosia District Court refused the first applicant’s bail request on the weight of the arguments presented by the prosecution and ordered his pre-trial detention for a period not exceeding three months. The District Court indicated in this connection that it had not found the first applicant’s statement that he would appear for trial if released on bail to be credible and reliable, but it did not comment on his counsel’s allegations of ill-treatment. The first applicant was transferred to the Nicosia Central Prison after the hearing. 48. It appears that on 30 January 2001 the first applicant appeared before the court for another bail hearing. The Court has not been provided with the minutes of that hearing, but it appears that the hearing was adjourned until 8 February 2001 on account of the first applicant’s deteriorating health, and that he was transferred to hospital for treatment for high blood sugar levels (see paragraphs 106-109 below for further details). 49. On 6 February 2001 the charges against the first applicant were lodged with the Famagusta District Court. 50. On 8 February 2001 the Famagusta District Court convened for a preliminary inquiry in the case, which lasted until 15 February 2001, during which period the District Court sat for six full days. The first applicant was present throughout the hearings and was represented by both his lawyers. He was also assisted by interpreters. 51. During the preliminary inquiry the prosecution called five witnesses: the three police officers who had allegedly arrested the first applicant, namely Sub-inspector Ü.Ö. and police sergeants H.M. and R.Ö.; another police officer who had interpreted the formal charges against the first applicant; and the forensic chemist who had analysed the drugs allegedly seized from him. The first applicant, on the other hand, called one witness, Mr J.C., the UN Liaison Officer in Cyprus at the material time. 52. The Famagusta District Court first heard the prosecution witnesses, who gave testimonies consistent with the incident reports and presented evidence against the first applicant, including a sketched map indicating where the applicant had crossed into the “TRNC” and where he had been captured, photographs of the relevant areas taken a few hours after the arrest, the drugs allegedly recovered from the applicant, and the clothes and shoes he had been wearing on the relevant day, which were soiled with mud on account of the struggle on the ground, as well as copies of the medical reports drawn up following his arrest. 53. The prosecution witnesses were subsequently cross-examined by the defence counsel, who challenged the veracity and credibility of their testimonies in the light of the first applicant’s account of events, according to which he had been kidnapped from his car in SBA territory and had then been handed over to the “TRNC” police. The defence counsel accordingly asked detailed questions about the tip-off call which Sub-inspector Ü.Ö. had allegedly received the day before the first applicant’s arrest and the identity of the police informant; the planning of the ambush and the weather conditions on the relevant morning; the route that the first applicant had followed to reach the “TRNC”; the exact point from which he had allegedly crossed into “TRNC” territory; and the paperwork undertaken by the police subsequent to the first applicant’s arrest. The responses received appeared to be consistent with the earlier testimonies and did not reveal new evidence, apart from some factual details, such as the height of the border fence, which, according to the prosecution witnesses, was approximately 110 centimetres at the point of crossing but yielded when pressed, details of the conversation with the police informant, and the notes taken by the arresting officers in their police notebooks prior to and after the operation. 54. Sub-inspector Ü.Ö. was asked why he had not submitted the package of drugs allegedly recovered from the first applicant for a fingerprint examination, to which he responded that he had seen no need for such an examination as he had taken the package directly from the applicant’s hands himself. He further maintained that no examination had been made of the footprints identified on the terrain, as the first applicant had apparently slipped and had not left very clear marks. 55. Sub-inspector Ü.Ö. was also asked whether he had recorded the tip-off he had received from his informant. He responded that he had recorded both the tip-off call and the subsequent operation conducted on the morning of 13 December 2000 for the first applicant’s arrest in his police notebook, which had been submitted to the court as evidence. 56. On the last day of the preliminary inquiry the defence counsel called Mr J.C. as the defence’s sole witness. Mr J.C. stated that he had been appointed by the UNFICYP as a Civil Affairs Police Liaison Officer. His duty was to liaise between the Greek and the Turkish Cypriot sides on policing and humanitarian issues. He explained that on 3 December 2000 his contact person on the Turkish side on humanitarian issues, Mr M.İ., who was the head of the Directorate on Consular Affairs and Minorities Issues of the Ministry of Foreign Affairs and Defence of the “TRNC”, had called him for a meeting. During the meeting, Mr M.İ. had told Mr J.C. that he wanted to protest, through the UN, about the recent arrest of Ömer Gazi Tekoğul by the Greek Cypriot police in the UN buffer zone. Mr M.İ. had allegedly told him that if Ömer Gazi Tekoğul was not released before noon on 4 December 2000, Greek Cypriots from Pyla, a mixed village located in the UN buffer zone, would start disappearing. M.İ. had added that if the Greek Cypriot police had adopted a new policy of kidnapping suspects from the buffer zone, the Turkish Cypriot police would respond in the same manner. 57. In response to the objections of the prosecution regarding the admissibility of Mr J.C.’s testimony as evidence, the Famagusta District Court held that it would accept Mr J.C.’s testimony not as evidence as to the truth of the statement allegedly made by Mr M.İ., which would be against the rule on hearsay evidence, but only as evidence of the fact that a meeting had taken place between Mr M.İ. and Mr J.C. 58. On the basis of the testimonies and other evidence presented before it, on 15 February 2001 the Famagusta District Court decided that there were sufficient grounds to commit the first applicant for trial before the Famagusta Assize Court. It also prolonged the first applicant’s pre-trial detention. 59. The first applicant claimed that during the preliminary inquiry, he had seen one of his abductors amongst the audience, but that the latter had managed to leave the court room before he had had the chance to point him out to his lawyer. 60. The first applicant’s trial commenced in the Famagusta Assize Court on 23 February 2001. He attended all of the hearings together with his two lawyers. He was also provided with an interpreter. 61. In addition to the five witnesses who had testified at the preliminary inquiry, the prosecution called as witnesses a forensic police officer, a “TRNC” military officer stationed in Pergamos, the three doctors who had examined the first applicant on 13 December 2000 and the agricultural engineer who had analysed the soil obtained from the first applicant’s shoes. The evidence provided by the prosecution witnesses, including during crossexamination, was, in general, consistent with the previous testimonies and official reports. 62. During his cross-examination Sub-inspector Ü.Ö. was asked a number of questions regarding the identity of his informant, which he refused to answer. However, he gave detailed information about the telephone conversation he had had with the informant, and also about his “exploratory visit” to the estimated drug drop-off point in the evening of 12 December 2000 together with the informant. Subinspector Ü.Ö. also stated that he had informed his supervisor about the information he had received from his informant prior to the operation conducted on 13 December 2000, while keeping the identity of the informant secret. However, he had not alerted the local police and military officers in Pergamos in order to protect the secrecy of the operation. In response to a question as to why no one had been left at the drop-off point following the first applicant’s arrest to capture the latter’s contact person in the “TRNC”, Sub-inspector Ü.Ö. stated that he had suspected his informant to be that contact person and that, in any event, a unit had been stationed at the dropoff point on the night of 13 December 2000 to catch any suspects. 63. During his cross-examination Dr E.A., who had conducted the initial medical examination of the first applicant after his arrest, was asked to provide details of the findings of his medical report (see paragraph 24 above). Accordingly, he indicated that on the relevant morning he had observed a swelling with a diameter of 4 centimetres on the left side of the first applicant’s head, as well as redness measuring 0.5 cm by 4-5 cm behind the right ear, redness measuring 8-10 cm across the chest, and two areas of redness measuring 3-5 cm by 3-4 cm on the back, all of which appeared to have been sustained only hours before the examination. He stated that the swelling observed above the first applicant’s left ear could have been caused by blunt-force trauma or by the impact of falling on a stone or similar hard object. He also confirmed that the examination had been conducted in the presence of two persons in civilian clothes, whom he had perceived to be police officers and who had also acted as interpreters between the first applicant and himself. He added that although he had raised the question specifically, the first applicant had not expressed any complaints of bodily injury, apart from stating that he was diabetic. The police, on the other hand, had explained that there had been a scuffle during his arrest. 64. Dr İ.A., who had examined the first applicant after Dr E.A. for any pulmonary problems, stated that the first applicant had presented symptoms of bronchitis. He had therefore prescribed medicine to him for that purpose but had not noted any other injuries or marks on his face or torso. He also indicated that the examination had been conducted in the presence of another person in civilian clothes, whom he assumed to be a police officer. 65. Dr H.K., a general surgeon, stated before the court that he had also examined the first applicant on the relevant day in response to his complaints of abdominal pain, but had not identified any causes for such pain. In response to a question from the first applicant’s lawyer, he stated that a blow to the abdomen could cause pain in that area. He added that if the blow was strong, it would also leave a mark, but he had not noted any such marks on the first applicant’s abdomen. 66. On 23 March 2001, after the close of the case for the prosecution, the first applicant was called to make his defence statement. His sworn testimony was largely in line with the account of events he subsequently submitted to the Strasbourg Court, including the detailed allegations of his abduction and illtreatment. However, he did not claim before the trial court that his abduction had been witnessed by the driver of a certain white Isuzu pickup. 67. Following the first applicant’s statement and crossexamination, the defence called seventeen witnesses to testify in support of its case, including a number of SBA police officers. The pertinent witness statements are summarised below. 68. Mr G.H. stated that he had left his house in Larnaca to go to work at approximately at 5.30 a.m. on the morning of 13 December 2000. While on his way to Pergamos to pick up his Turkish Cypriot workers, he had overtaken the first applicant’s car, which was heading in the same direction. When asked whether he had actually seen the applicant in the car, G.H. answered in the negative and indicated that he had only identified the car from its number plate. Moreover, he had been unable to tell whether there had been only one person or more in the car. G.H. claimed that as he had approached Pergamos, he had noticed a stationary white car on the left-hand side of the road, with its bonnet open and a man examining its engine. Shortly afterwards, he had noticed a red car with a number plate starting with a “Z”, parked to the right of the white car. He had driven past those cars without stopping, but while driving by, he had heard a man shouting. He had assumed that it was the driver of the white car calling for help with his car. He had arrived at Rabiye’s café where his workers were waiting for him at approximately 5.45 a.m., had a coffee and then left with his workers. As he was driving past the spot where he had seen the two Renault cars previously, he had noticed the first applicant’s car parked oddly, almost in the middle of the road and facing towards the roadside, with its driver’s door open, its engine running and its headlights on. The two other cars, on the other hand, had gone. 69. On the morning of 13 December 2000, as he was driving to Pergamos to pick up his Turkish Cypriot workers from Rabiye’s café, Mr A.G. had noticed a red car with a red “Z” number plate parked on the left side of the road just before the junction leading to the ex-Pergamos camp. It had looked like the police cars that were used by the “TRNC” police in Pyla. The red car was facing Pergamos with its bonnet open, and there were two men standing in front of it. He had then noticed, on the opposite side of the road by the cypress trees, a white car, which had flashed its headlights at him. He had driven past both cars without stopping and arrived at Rabiye’s café at approximately 5.40 to 5.45 a.m. He had left the café at approximately 6 a.m. and while driving past the place where he had previously seen the two cars, he had noticed that those cars had gone but this time the first applicant’s car was parked on the right side of the road, facing the wrong direction, with its engine running, and its headlights and wipers on. The driver’s door was also open. 70. Mr N.M. left his house at approximately 5.30 a.m. on 13 December 2000 to pick up his Turkish Cypriot workers at their designated café by the Pergamos checkpoint. A red double-cabin pickup, which he later learned belonged to the first applicant, was driving approximately seventy metres ahead of him in the same direction. When he saw that part of the road was flooded, N.M. first turned his car around to return home, as he thought the weather would not be suitable for construction work that day, but then changed his mind and resumed his journey to Pergamos. On reaching the junction leading to the ex-Pergamos camp sometime between 5.40 and 5.50 a.m., he noticed the first applicant’s car parked in the right-hand lane of the road, facing slightly to the right. He also saw someone getting out of that car and walking towards the fields on the right. There was no one else in the car, but the engine was running. The driver’s door and both rear passenger doors were open. He also noticed three or four other people approximately twenty metres further down in the fields to the right, but did not see any other cars in the vicinity. He then heard someone yelling “Let me go!” in Greek from the direction of the fields, but was too scared to get out of the car to see what was going on, and drove back home. 71. While driving towards Pergamos to pick up his Turkish Cypriot workers at approximately 6.05 a.m. on the morning of 13 December 2000, Mr Yiannis Tsiakkourmas saw his brother’s car parked just before the junction leading to the ex-Pergamos camp. He noticed that the engine was running and the wipers were on, the driver’s door was open, but his brother was not around. His phone and bag were, however, in the car. He drove to Rabiye’s café to ask about his brother, and when he found no further information he took two of his Turkish Cypriot workers with him and drove back to the place where he had found the first applicant’s car. He then went to the SBA police to report his brother missing. Upon returning to the place of the incident, and prior to the arrival of any SBA police officers, he asked one of his Turkish Cypriot workers to move the car to avoid causing any accidents. The car was accordingly parked in a safer spot on the left side of the main road. 72. On the morning of 13 December 2000, while driving to Pergamos to pick up his Turkish Cypriot workers, Mr S.E. saw a red Chevrolet doublecabin pickup, which he later learned was the first applicant’s car, parked in the right-hand lane of the road approximately 500 metres from Rabiye’s café, slightly facing the left-hand side of the road and with the driver’s door open. When he reached the café, one of the first applicant’s Turkish Cypriot workers approached him and said that his boss had still not arrived. S.E. let the worker call the first applicant from his mobile phone, but the first applicant did not answer. S.E. then left the café with his workers. As he was driving past the first applicant’s car again, he saw three or four people standing by it, including the first applicant’s brother, Yiannis Tsiakkourmas. 73. Three other Greek Cypriot builders, Mr H.Z., Mr A.S. and Mr M.T., also gave similar accounts to that of S.E. regarding the location of the first applicant’s car. 74. Detective Sergeant P.P., a Greek Cypriot, was the chief investigating officer appointed by the SBA police to investigate the first applicant’s alleged abduction. He stated that at approximately 6.30 a.m. on the morning of 13 December 2000, he had seen Yiannis Tsiakkourmas at the SBA police station, reporting his brother missing. When he went to the scene of the incident at around 7 a.m., he found the first applicant’s red Chevrolet pickup, which had already been moved from its original position, at the exPergamos camp junction, on the left-hand side of the main road from Pyla to Pergamos. He noticed that the car key was still in the ignition, and there was a handbag and a mobile phone inside the car. He and a couple of other officers searched the vicinity for signs of the applicant, with the help of a sniffer dog, but found no clues to indicate his whereabouts. He claimed that in some parts of the fields by the side of the main road, the mud was 30 to 40 centimetres deep, which made walking in the fields very hard. He then instructed Sergeant N. to go to the Pergamos checkpoint to enquire whether the first applicant had been detained by the “TRNC” police that morning. The answer was negative. 75. Detective Sergeant P.P. presented to the trial court a map he had sketched on 3 January 2001, covering the area between boundary stones nos. 96 and 97 where the first applicant was alleged to have crossed into the “TRNC”, as well as some photographs that the SBA police had taken in the area. The sketched map indicated a stream, with a barbed-wire fence to its north, marking the boundary between the SBA and the “TRNC”. About fifteen metres from the barbed wire was an olive tree in an uncultivated field, which was the alleged drop-off point for the drugs the first applicant was accused of smuggling. According to the map, the barbed-wire fence in the relevant area was 120 to 140 cm high on average, but P.P. acknowledged that the fence had deformed and sunk in certain parts, which was also evident in some of the photographs. Moreover, there was a small hole measuring 6 by 20 cm at the bottom of the fence adjoining the field. According to P.P., the approximate depth of the stream on the relevant date was two and a half to three metres. 76. In the cross-examination, the prosecution argued that the exact location where the first applicant had been captured, including the deformed wire fences where he had crossed into the “TRNC”, had intentionally not been photographed by the SBA police, so the photographs submitted to the trial court as evidence were irrelevant and misleading. Moreover, the wire fence on the SBA-“TRNC” border was not barbed throughout, contrary to P.P.’s suggestion. The prosecution claimed that the investigation conducted by the SBA police had lacked independence and impartiality. 77. Mr N.P., a Greek Cypriot superintendent in the SBA police service, testified that at approximately 1.30 a.m. on 13 December 2000 he had received a call at the police station stating that some of the roads in the SBA of Dhekelia had been flooded because of the heavy rain that night. He therefore left the police station to check the roads and instruct the rerouting of certain roads as necessary. At approximately 5 a.m. he drove past the area where the first applicant’s vehicle was later found abandoned. Although the heavy rain had stopped by that time, it was still drizzling and the road in the relevant area was covered with three to five inches of water. By 6 a.m. the rain had stopped completely. 78. When shown the photographs which the “TRNC” police had allegedly taken in the area later that morning, Mr N.P. said that the ground looked too dry, so those photographs could not have been taken on 13 December 2000. 79. Sergeant A.E.N. was a Turkish Cypriot working in the SBA police force. At approximately 6.25 a.m. on the morning of 13 December 2000, he crossed from the “TRNC” to the SBA through the Pergamos checkpoint to report to his work station. As he was approaching the ex-Pergamos camp junction on the main road from Pergamos to Pyla, he noticed a stationary car further down his lane, facing his direction. Since the headlights of the car were bothering his eyes, he flashed his lights, but there was no reaction. As he approached, he saw that the stationary car was a red pickup and the driver’s door was open. When A.E.N. pulled up by the red car to see what was going on, he noticed that the car’s engine was also running, although there was no one inside it. Once he reached the police station he reported what he had seen and was accordingly instructed to go back to the place of the incident for further investigation. When A.E.N. went back at approximately 7.10 a.m., he found that Yiannis Tsiakkourmas and two Turkish Cypriot workers had moved the red pickup and had parked it about 25 metres down the road leading to the ex-Pergamos camp. 80. Mr D.J.W. was a search-dog trainer in the British armed forces. At approximately 8.15 a.m. on the morning of 13 December 2000 he was deployed to track the first applicant’s whereabouts with his dog. When he arrived there were six SBA police officers at the scene of the incident. He first explained to the trial court how the tracking process worked in general and stated that the dog could only track one person at a time, and would follow the freshest track in the area. On that morning, they had started the search at the place where the first applicant’s car was first found. They had covered the 400-metre perimeter, but had not been able to find any tracks. Since the recent rainfall had made the ground wet, it would not have been possible to walk on the grass by the asphalt road without leaving footprints, but they had found no such marks, which meant that the first applicant had not left the area on foot. 81. The defence lastly called Mr J.C. as a witness, to testify on his exchange with Mr M.İ., an officer of the “TRNC” Ministry of Foreign Affairs. The trial court, however, ruled that Mr J.C. could not testify on the content of Mr M.İ.’s statements in view of the rules on hearsay evidence. 82. At the hearing held on 10 April 2001, the first applicant’s lawyer, Mr P. Brogan, told the trial court that while the defence had a number of Turkish Cypriot witnesses who wished to testify in favour of the defence, mainly to confirm the sighting of the abandoned vehicle, it had not been possible to secure their attendance as those witnesses were being intimidated by the Turkish Cypriot authorities. According to submissions made by the applicants, the President of the Court responded in a hostile manner and requested proof of service of witness summonses on the relevant Turkish Cypriot persons, but the exchange between the President and the defence counsel was not included in the minutes of the hearing. 83. At the hearing held on 11 April 2001, the first applicant’s other lawyer, Mr M. Aziz, informed the trial court that the defence still had eight more witnesses to call. However, since they had not managed to duly serve those witnesses with official summonses, and most of them had no further information to share with the court than that already presented, they had decided to relinquish their right to call those witnesses and to close the defence case. The President of the Court asked in return why the said witnesses had not been served with a “short summons” to secure their attendance and stated that the court was very sensitive to this issue in view of Mr P. Brogan’s allegations of witness intimidation made at the previous hearing. Mr M. Aziz stated in response that he had no information as to the factual basis of Mr P. Brogan’s allegations of intimidation and that he did not mean to blame any State officials for the non-attendance of the Turkish Cypriot witnesses. 84. On 26 April 2001 the Famagusta Assize Court delivered its judgment against the first applicant, which reads as follows: “The legislation, the testimonies and the evidence presented have been assessed [by the court] comprehensively. [The court] has carefully observed the prosecution witnesses, as well as the defendant and his witnesses during their depositions. While there are some small discrepancies between the testimonies of ... prosecution witnesses, their statements were mainly found to be credible, accurate and reliable. On the other hand, [the court] has not found the testimonies of the defendant and his witnesses to be credible, accurate and reliable. Moreover, we decided that these testimonies were not likely to be true, on the basis of the principle of “balance of probabilities”. Since all witness testimonies and the evidence presented to the court are in the case file, we find it unnecessary to cite them one by one in our judgment. We believe that on the basis of the testimonies and evidence they presented, the prosecution have proven, beyond reasonable doubt, both charges against the defendant. Consequently, the defendant is found guilty of both charges brought against him.” 85. The first applicant was sentenced to six months’ imprisonment on the first count, with no sentence on the second count. The Famagusta Assize Court, however, ruled that he be released from prison in view of the time he had already spent on remand. 86. The medical examinations conducted on 13 December 2000 in the aftermath of the first applicant’s arrest have been outlined in paragraphs 63 65 above. According to the information and documents provided by the parties, he underwent further medical examinations throughout his detention in the “TRNC”, the details of which are as follows. 87. The day after his arrest, on 14 December, the first applicant was examined by a UNFICYP medical officer, Dr S.T., at his request. It appears that a “TRNC” official in civilian clothes supervised the examination and took notes. 88. According to the information in the case file, the first applicant told Dr S.T. that he had been punched and kicked at the time of his arrest and that he felt acute pain in his ribs and pelvis. The first applicant claimed before the Court that he had been prevented from saying more as the “TRNC” official supervising the examination had told him to keep quiet. 89. When conducting a physical examination, the doctor noted a slight swelling above the first applicant’s left ear; a graze behind the right ear and the right side of the back; and tender areas on the right side of the chest and the left side of the back, behind the neck, and around the tail bone and the right hip. No handcuff marks were noted on his wrists. 90. It appears from Dr S.T.’s notes that the first applicant indicated that he had been treated well after being handed over to the uniformed police on 13 December 2000, and that he was being given his diabetes medication. Dr S.T. noted that the applicant’s diabetes was the type that could usually be controlled by diet (type-2 diabetes) and further remarked that arrangements had been made for a blood glucose monitoring kit to enable him to monitor his diabetes. There were, however, no remarks regarding the first applicant’s intimidation by the “TRNC” official supervising the examination. 91. On 28 December 2000 Dr S.T. made an unannounced visit to the central prison to check on the first applicant. During the visit he also performed a blood sugar test. In a report he issued the next day, Dr S.T. indicated that although the applicant’s blood sugar level was somewhat high (“197 g/dL”), it was still within the normal range for him – he had informed the doctor that his levels were usually around “200g/dL”. The doctor also noted that the applicant’s request for a special diet for his diabetes was being met by the prison authorities. In conclusion, Dr S.T. was satisfied that the applicant was receiving adequate treatment for his diabetes and was being allowed to monitor his blood sugar levels. 92. Dr S.T. visited the first applicant again on 19 and 23 January 2001, together with a Turkish Cypriot doctor, H.S., to check his physical state and blood sugar levels. In his report dated 23 January 2001, Dr S.T. made the following remarks: “In my opinion a good standard of medical care is being given. However, because of Mr. Tsiakkourmas’ mental state and the stress he is under, his diabetic control is poor. There is also a question as to whether or not he is complying fully with his treatment.” 93. Dr S.T. also visited the first applicant on 16 February and 9 April 2001 for routine medical checks and noted that he was in reasonable health. In his latter report dated 9 April 2001, Dr S.T. also stated that the first applicant had made no complaints of ill-treatment by the prison staff. 94. On 8 January 2001 the first applicant was examined by Dr G.P., a Hungarian specialist in internal medicine and endocrinology practising in Limassol, in relation to his diabetes. The doctor noted that his blood sugar level was “340 mg/dL” and that he had lost a considerable amount of weight since his imprisonment. He then concluded his report as follows: “The obvious weight loss and marked hyperglycaemia without any other signs of concomitant disease can only be explained by a rapid metabolic deterioration that followed his imprisonment. The initial and ongoing stress situation, the involuntary immobilisation of a formerly physically active person in association with marked depression are factors which increase both hyperglycaemia and insulin resistance in the diabetic person and lead to catabolism. The present treatment is obviously insufficient to prevent further worsening. If his immediate return to his normal environment and daily activities is not achievable at present, I suggest this: 1. Glimepiride (Amaryl) 1.0 mg tablet to be taken twice daily 2. Metformin (Glucophage, Lipha) 500 mg tablet once daily 3. Diabetic food (food to be taken at least five times daily, no added sugar) with adequate water consumption 4. Regular daily physical exercise 5. Blood glucose testing three times daily If these measures do not improve his diabetes control significantly in few days’ time or signs of further deterioration are detected, the commencement of insulin treatment and/or hospitalisation should be considered. His physical state should also be followed up to decide if medical treatment is necessary.” 95. On 15 January 2001 Dr G.P. saw the first applicant once again at the Nicosia State Hospital, together with Dr H.S. and a UNFICYP medical officer, R.K. Dr G.P. noted his findings as follows: “The patient was in a very bad mood ... and he mentioned that he didn’t want to comply with further medical assistance from whatever side. ... [He said that] he took this tablet [Amaryl] only once daily and didn’t take the other tablet [Glucophage] recommended during my first visit. His physical examination was carried out by Dr H.S. in our presence.... His blood sugar was 349 mg/dL.... I advised an abdominal ultrasound examination which was carried out without delay by the X-ray department in our presence. Multiple small stones were found in both kidneys without any other pathological findings. After these I tried to convince him to comply with our medical recommendations ... The main problem now seems to be the lack of compliance with the medical recommendations. His parodontitis [sic.] and the presence of small renal stones are also warning signs that his diabetic control must be improved otherwise a progressing inflammation in the mouth and a urine infection can worsen his diabetes with severe acute consequences. To avoid this, a proper compliance with the medical recommendations seems to be absolutely important. In this situation a psychiatric exploration is also necessary, carried out by a doctor who speaks Greek as a mother tongue ... This exploration may help break his present denial of medical care and provide further opinion [on] how to proceed with his medication.” Dr G.P.’s findings coincided with the separate report prepared by the Turkish Cypriot doctor, H.S. 96. On 25 January Dr G.P. saw the first applicant for the third time and noted his findings as follows: “... He complained of regular gastric pain ... He confirmed that he was taking the anti-diabetic drug according to the last recommendation. ... I took his blood sugar, which was 199 mg/dL in the fasting state this time. We recommended hospitalisation for a better blood sugar stabilisation and followup. The idea was rejected by Dr H.S. who suggested a more frequent blood sugar monitoring to show if his blood sugar levels can be diminished, if required, with an elevated anti-diabetic dose without bringing him out of the prison. On my fears that the patient may have a stress mediated gastric ulceration that can progress into perforation or bleeding he promised to arrange a gastroscopy on 30 or 31st January next week.” 97. On 15 March 2001 Dr G.P. examined the first applicant for the fourth and the last time, in the presence of Dr H.S. and a UNFICYP medical officer, and made the following notes: “... He has not performed a blood sugar test since weeks but in general he felt somatically fit. Sometimes he does not take the Amaryl tablet in the evening when he ‘feels alright’. ... I took his blood sugar, which was 191 mg/dL ... non-fasting. There was an agreement among all three doctors present that it was time to carry out new laboratory and ECG tests. However, the patient denied all these and allowed only the aforementioned blood sugar test ... His explanation was that he felt helplessness, nobody wanted to help him to take him out of prison, he didn’t even ask for my visit or for any other medical help in the future. He also said that he would stop tablet taking on Monday and would start a hunger strike. I tried to explain to him that in his health situation this would be really dangerous, could lead to sudden worsening of his status. I could not convince him to abandon this idea, that he should comply with the medical suggestions to remain fit ... His anger and negativistic attitude to health care can be signs of deepening depression.” 98. On 12 January 2001 the first applicant was examined by another UNFICYP medical officer, Dr R.K., who made the following findings after his visit: “Mr. Tsiakkourmas ... suffers from diabetes type II for about four years. The patient was found in a good physical condition but seemed to be depressive ... His blood sugar level [was] 220 mg/dL ... The drugs recently prescribed by Dr G.P. are available at prison, but he refuses to take any other drugs than prescribed by his ‘own doctor’. There is also the possibility to monitor the bodyweight and to check the blood sugar level three times a day, as recommended, but the patient refuses this as well, because he wants to avoid to be pricked too often and in his opinion doing this every two or three days seem to be sufficient. The perfect therapy plan developed by Dr G.P. is not accepted by the patient! ... His blood sugar level is too high and has to be properly adjusted, but there is no acute danger to his life. The main problem at this moment seems to be the fact that he refuses any other medication prescribed or monitoring recommended than from his own doctor.” 99. Dr R.K. issued the following “inter-office memorandum” on 16 January 2001 in relation to the first applicant’s health situation: “1. Dr. H.S., the [Turkish Cypriot] responsible doctor at Nicosia General Hospital North, is an endocrinologist and seems to be very competent and cooperative. All necessary drugs and means to carry out recommended tests (blood sugar level, blood pressure, weight etc.) and supportive measures (physical exercise, diet etc.) are available at the hospital as well as at the prison. 2. The main problem at this moment is the patient’s unwillingness to follow the therapy plan for understandable reasons (lack of trust of foreign doctors, depressive situation ...). ...” 100. After his visit on 25 January 2001 Dr R.K. noted that the first applicant had still not been taking the recommended medication regularly. 101. According to the documents submitted by the respondent Government, the first applicant was also regularly examined by Turkish Cypriot doctors. 102. On 3 and 8 January 2001 a Turkish Cypriot doctor, whose name cannot be discerned from the reports, examined the first applicant and measured his blood sugar levels. He also prescribed medication for his diabetes, including 1mg of Amaryl. 103. On 15 January 2001 Dr H.S. examined the first applicant in the presence of Dr G.P., Dr M.K. and a UN officer at the Nicosia State Hospital and noted the following in his report: “Tsiakkourmas suffers from type-2 diabetes and takes Amaryl (1mg), twice a day. While his diabetes was controlled through diet previously, currently he is hyperglycaemic. It was noticed during the examination that Tsiakkourmas was stressed and depressed ... The right lumbar region was sensitive to percussion and there was pain upon deep palpation at the right hypochondriac region ... The results of the examination of the extremities were normal. His blood sugar level was 347 mg/dl ... Based on these results, his gallbladder and kidneys were examined in ultrasound. His gallbladder was empty and no stones were noted; there were stones in both kidneys. Liver, spleen, urinary bladder and prostate were normal.” Based on his findings, Dr H.S. recommended that the first applicant continue with his medication and special diet, exercise daily, measure his glucose levels regularly and be brought to the hospital for examination by him twice a week. He also recommended the first applicant’s referral to a psychiatrist. 104. It appears that Dr H.S. continued to examine the first applicant regularly throughout his detention. In his report dated 22 January 2001, he noted that the first applicant had refused to be examined and had stated that he had not been taking his medication. 105. On 25 January 2001 the first applicant was examined by a Turkish Cypriot psychiatrist, Dr İ.T., with the assistance of an interpreter. The doctor noted no pathologies, apart from the applicant’s distress. She stated in her report that she had offered to prescribe the first applicant a tranquiliser, but he had rejected it. 106. On 30 January 2001 the first applicant was admitted to the Nicosia State Hospital for closer monitoring of his health. He was kept there until 5 February 2001. 107. After visiting the first applicant at the hospital on 1 February 2001, Dr R.K. noted his improved physical condition. According to his report dated 6 February 2001, the first applicant’s state of health continued to improve after his discharge from the hospital. Similarly, when he visited the first applicant on 20 and 28 February 2001 and 27 March 2001, Dr R.K. found him in a “sufficient health condition”, although his psychological state appeared to have deteriorated. Dr R.K. stressed to the first applicant that if he had any health problems, he should approach the prison authorities and ask to be seen by a doctor. 108. Following his discharge from the hospital the first applicant was also visited twice by Dr S.T. for routine medical checks (on 16 February and 9 April 2001). Dr S.T. noted that he was in reasonable health and also stated that he had made no complaints of ill-treatment by the prison staff. 109. On 18 April 2001 the first applicant was examined by another UNFICYP medical officer, Dr J.G., who also found him to be in a very satisfactory state of health. Dr J.G. indicated that the first applicant continued to take the prescribed anti-diabetic drugs regularly, and that he had been receiving the proper diet. He also noted that the first applicant had been performing physical exercises and was allowed to get books and newspapers. 110. The first applicant submitted a medical report dated 11 May 2001 issued by his dentist. The report stated that he was suffering from serious problems with his upper anterior teeth, including abscessed gums, and had a scar on his lower lip, which was consistent with a powerful blow to the face. 111. The first applicant also submitted other medical certificates that he had obtained from various doctors approximately six months after his release from prison, including one from his own doctor. According to those reports, while the first applicant’s diabetes appeared to be under control by that time, he continued to suffer psychologically. 112. It appears from the information in the case file that the first applicant was allowed to receive visitors twice a week during his detention on remand, including from his friends, and was granted one hour for each visit. His allegation that he was not given permission to make telephone calls was denied by the Government. 113. Following special permission sought by the second applicant (the first applicant’s wife), the first applicant was authorised to receive visits from his family on 15 April 2001, Easter Sunday, although it was not an ordinary visit day. 114. The parties disagreed as to whether the family visits in the Nicosia Central Prison were monitored. The applicants claimed that a prison officer had stood guard in or by the visit room during most visits, whereas the Government maintained that the applicants had been able to meet and communicate out of the sight of the authorities. 115. The parties submitted photographs and sketched maps of the scene of the incident and its vicinity, as well as various documents concerning the events and evidence that unfolded following the detention of the first applicant by “TRNC” authorities. Those documents, in so far as they are relevant, are summarised below. 116. The Government submitted four pages from the police notebook of Sub-inspector Ü.Ö., including two handwritten entries. 117. The first of those entries, which was made at 6.30 p.m. on 12 December 2000, read as follows: “According to the information I received, at approximately 5.30 a.m. on the morning of 13 December 2000 a Greek Cypriot will enter the TRNC via Pergamos to hide illicit drugs in the empty lot located by the border crossing, to be picked up by his accomplice on this side. The superintendent put me in charge of taking the necessary precautions in the area. I informed sergeants R.Ö. and H.M..” 118. The second entry was made at 7.10 a.m. on 13 December 2000, after the arrest of the first applicant, and described the circumstances in which the latter had been captured with drugs as follows: “At 6.05 a.m. we captured a Greek Cypriot coming from the SBA on the lot by the cemetery located next to the Pergamos Gate, together with sergeants R.Ö. and H.M.. I took the bag he was carrying. Upon checking the bag, I found what I believed to be two plates of cannabis resin wrapped in newspaper. The defendant was informed by sergeant H.M., who acted as the interpreter, that he was being arrested for having made an unauthorised entry into the TRNC and possessing illicit drugs. The defendant said “I am innocent”. I learned from Sergeant H.M. that the person’s name was “Banayodis Giryagu” [sic.]. We transferred Banayodis Giryagu to the Gazimağusa Security Directorate. At 6.45 a.m. I interrogated [him] with the help of sergeant H.M. [to find out] where he had found the drugs in his possession and who he was taking them to. I could not get any responses. I left the detainee in Gazimağusa under the control of sergeant R.Ö.. I am now leaving for Lefkoşa together with the evidence.” 119. After being informed about the discovery of the first applicant’s car in SBA territory, in a seemingly abandoned state with his briefcase and mobile phone left inside the car, the SBA police promptly started an investigation into his whereabouts. The forensic examinations conducted in and around the car, including with the help of a sniffer dog, did not yield any results. The police and the military in the “TRNC” initially denied any knowledge of the first applicant; it was not until 10.25 a.m. that the “TRNC” authorities informed the SBA police that the first applicant was in their custody, having been found in possession of drugs in “TRNC” territory. 120. On the basis of the information received from the “TRNC” authorities, the SBA police searched the first applicant’s car for traces of drugs and fingerprints. It appears that they found no traces of drugs, and no further information was provided regarding fingerprints. Over the next couple of months, they also interviewed some 104 people in an attempt to shed light on the events of 13 December 2000. Amongst the interviewees were the first applicant’s Turkish Cypriot workers, his fellow Greek Cypriot contractors, including those who later testified before the Famagusta Assize Court, members of the SBA police force, and the residents of the houses in the area where the first applicant’s car had been found and where he had allegedly crossed into the “TRNC”. 121. A number of interviewees attested to having seen the first applicant’s car on the morning of 13 December 2000 parked in an odd manner on the main road from Pyla to Pergamos, albeit with some inconsistencies as to its position and state, such as whether and which doors of the car were open, which way it was facing and whether the engine was running. Some others who had taken the same road around the relevant time stated that they had not noticed anything out of the ordinary or seen the first applicant’s car. A number of persons approached for statements, including some Turkish Cypriots, refrained from giving statements altogether because they were afraid to talk for political reasons. 122. Of the 104 people interviewed, only two, G.H. and A.G., who also subsequently testified before the Famagusta Assize Court, had seen the Renault cars that had allegedly been used for the first applicant’s abduction. Although A.G. stated before the Assize Court that he had seen two Renault cars, one white and one red (see above paragraph 69), he had not mentioned anything about a white car in his earlier statement to the SBA given on 19 December 2000. Moreover, the sketched plan attached to G.H.’s statement, indicating the respective positions of the red and the white Renault cars and the car of the first applicant, did not fully correspond to the statements given by the other witnesses and the first applicant himself, nor did it match his subsequent statement before the Assize Court, particularly as to where the red Renault car had been parked vis-à-vis the white one. 123. Amongst all those interviewed, only one person – a Greek Cypriot builder, Mr N.M., who also subsequently appeared before the Famagusta Assize Court as a witness – claimed to have witnessed anything suggesting an abduction on the relevant morning. In his statement to the SBA police on 18 January 2001, N.M. said that at approximately 5.50 a.m. on the morning of 13 December 2000, he had seen a red double-cabin pickup parked on the main Pyla-Pergamos road, with no other cars around it, and a man running from that car towards the field on the right side of the road. There were three or four other men in the field, who were pulling someone by the hands and arms towards the east side of the field, and he heard that man yelling “Let me go!”. 124. On 16 December 2000 the SBA police interviewed Mr V.Z., the owner of the white Isuzu pickup with registration number UJ 100, which the first applicant claimed had been travelling in front of him towards Pergamos on the relevant morning. V.Z. stated that on the morning of 13 December 2000, his car had been driven by a Turkish Cypriot worker of his, whose name he did not reveal for safety reasons (but who will be referred to as “X” hereinafter). According to what V.Z. had heard from X, as he was driving from Pergamos to Pyla on the morning of 13 December 2000, X had noticed two civilian cars, one red and the other white, blocking the way of a doublecabin pickup that had been coming from the direction of Pyla (that is, the opposite direction to him). As he approached, he saw three or four persons running from one of the vehicles towards the pickup and by the time he was driving past those vehicles, they were pulling the driver out of the pickup, while three or four other people were sitting inside the other vehicle. V.Z. stated that X had not seen anything more because he had driven past without stopping. Allegedly, a couple of days after the incident the first applicant’s nephew, Kyriacos Tsiakkourmas (who himself is an applicant before the Court), and an SBA police officer managed to track down X. Yet, apart from their allegations, there is no evidence in the case file to demonstrate that any contact was actually made with X or that X confirmed V.Z.’s testimony. 125. As for the interviews conducted with the residents of the area, it appears from their testimonies that none of them had seen anyone around on the morning of 13 December 2000. They had certainly not seen anything suggesting an arrest or abduction on the road. Some of them confirmed that the depth of the stream by the border fences, which the first applicant had allegedly crossed to enter the “TRNC”, had been around eighty centimetres to one metre on the morning in question. It further appears from the documents submitted by the applicants that after finishing the interviews with the residents of the area around the Pergamos Gate, an SBA officer set off to walk from the point of the alleged crossing into the “TRNC” to the point of the alleged abduction in order to measure the time it would have taken the first applicant to walk that distance. According to the officer’s notes, the relevant path could be covered in ten minutes at a normal pace. 126. The applicants also submitted various SBA police reports regarding the investigation conducted into the first applicant’s alleged abduction. The report dated 15 December 2000 stated the following: “On 14.12.00 Panicos’ [the first applicant’s] wife, accompanied by a Turkish Advocate, visited him in custody in the Controlled Area of Northern Cyprus. It has been confirmed by both parties that Panicos alleges that at the location of his abandoned vehicle he saw a vehicle with the bonnet open and two men with their attention fixed on the engine compartment. He stopped to offer assistance, and at this point he was bundled into their vehicle and driven from the SBA into the controlled site via Pergamos gate. This was against his will. He was then driven around for approximately one hour, given a parcel and pushed out of the vehicle at an unknown location. Approximately five minutes passed and then a Turkish Cypriot Police car arrived. He went to them for assistance and was arrested for allegedly being in possession of a parcel of controlled drugs”. 127. In another report prepared on 16 December 2000, SBA sergeant P.P. noted that the first applicant’s nephew, Kyriacos Tsiakkourmas, had given him some information that he had received from his uncle’s Turkish Cypriot lawyer regarding the alleged abduction. The relevant parts of the report read as follows: “Panicos also told his solicitor that following his abduction he was taken to a place where there were airplanes. During the journey the persons who abducted him were beating him up. On arriving at the aeroplane place (suspected to be Erdjian Airport [sic.]) the persons who abducted him dragged him out of the vehicle, threw a bag to him and left. Following that Turkish Police arrived at the said place and arrested him.” 128. In a report prepared on 5 January 2001, SBA sergeant P.P. noted that the “Political Section” of the TRNC Police Plain Clothes Unit used two unmarked civilian vehicles, a red Renault and a white Renault, to patrol the area of Pyla and Pergamos. In his opinion, those vehicles had also been used for the abduction of the first applicant. 129. In their report issued on 23 January 2001, the SBA police made the following conclusions: “Turkish Cypriot Police Officers maintain that they arrested Tsiakkourmas inside the Turkish Controlled Area about 70 yards west of Pergamos Gate. If this account is accepted then Tsiakkourmas must have abandoned his vehicle, engine running, lights on and driver’s door open, almost in the middle of what was then a fairly busy road. He must have left his briefcase and mobile telephone and (carrying a large quantity of cannabis) walked 500 metres across a muddy field, climbed a 1.5 metre high fence and crossed a 4 metre wide ditch. An SBA Police Officer will state that there was water to a depth of one metre in the ditch that morning. He thereafter must have tried to hide the cannabis under a 1 metre high olive tree (the only one in the area described by the Turkish Police). (This in an area with which Tsiakkourmas would be unlikely to be familiar – inside the Turkish Controlled Area). All of this he must have accomplished knowing that his employees were waiting for him at 0545 hrs, as they had been doing for the past ten years, at the Pergamos Check Point. ... Notwithstanding the fact that it is often much more difficult to prove innocence rather than guilt it is submitted that, in spite of the statements of the Turkish Cypriot Police to the contrary, all other available evidence indicates that Panicos Tsiakkourmas was taken from his vehicle at the locus where that vehicle was abandoned – well within the Eastern Sovereign Base Areas. Other than the statements of the Turkish Cypriot Police Officers there is absolutely no evidence – forensic or historical – to indicate that Tsiakkourmas had – or ever has had – illegal drugs in his motor vehicle or in his possession.” 130. Some members of the SBA police also appeared before the Famagusta Assize Court as defence witnesses. Their statements have been noted above (paragraphs 74-79 above). In a separate affidavit he sent to the Court, SBA sergeant P.P. stated that various Turkish Cypriot witnesses who had wished to testify before the Assize Court for the defence had been intimidated by the Turkish Cypriot authorities. Sergeant P.P. claimed that some of those witnesses had personally told him that they had been questioned and threatened by the Turkish Cypriot police. The Court notes that it cannot be inferred from the case-file that these allegations were brought to the attention of the Assize Court. 131. On 24 January 2001 the SBA police conducted a reconstruction of the first applicant’s alleged abduction on the basis of the evidence available to them. The reconstruction was also recorded on video. It appears that a number of “TRNC” police officers also watched the reconstruction. 132. The SBA police were not permitted to interview the applicant during his detention in the “TRNC”. However, following his release they took a statement from him, which was consistent with his account of the events submitted to the Court. They also showed him the video of the reconstruction exercise. According to the records of the SBA police, the first applicant recognised two of the bystanders in the reconstruction video as his abductors. Upon investigation, it was established that one of the persons recognised by the applicant was police officer E. of the Famagusta Intelligence Service and the second one was police officer Ü., who worked at the Pergamos police station. Arrest warrants were subsequently issued against those persons on 7 June 2001 on suspicion of the offence of abduction. There is no further information in the case file on this matter, nor is it clear whether this information was shared with the Turkish Cypriot authorities. 133. There is no information in the case file to suggest that the Government of the United Kingdom lodged any protests with the Turkish Government in relation to the alleged abduction of the first applicant from SBA territory. 134. On 7 July 2001 the applicant’s Turkish Cypriot lawyer, Mr M. Aziz, gave the following information to Mr Rauf Denktaş, the President of the “TRNC” at the material time, regarding the allegations of witness intimidation during the trial of the first applicant before the Famagusta Assize Court: “At the close of the case by the Prosecution, the defense summoned 17 witnesses. The names of all the Greek, English and Turkish witnesses that were summoned were given to me by P. Brogan, the co-defense lawyer, after consultation with the British Sovereign Bases Police. However, due to reasons out of my knowledge, the names of some additional witnesses were withheld from me. An attempt was made to call these witnesses at the last minute. The names of these witnesses were given to me at the last minute. I issued the necessary summonses through the Registrar’s Office of the Famagusta District Court. All the witnesses listed in the attached paper were issued with summons [17 witnesses in total] and these were brought to the Court to testify. Although the 3-4 witnesses whose names were given to me late were issued with summonses, these could not be served by the Court bailiff in time. On the last day of the trial, I gave the Court the information I got from the English lawyer that these 3-4 witnesses had actually wanted to come to the Court but had been threatened or hindered. The Court asked me whether [they] had been summoned, in which case the court could order their presence. I told the Court that the summonses had not been served yet. As there was no service of the summons, the judge, under the Criminal Procedure Law and the related Regulation, could not order the arrest of these witnesses. As a result, the defense closed its case (without calling these additional witnesses) after calling 17 witnesses listed in the attached paper. The reason a proper service of the summonses could not be done was the concealment of the names of these witnesses even from me till the last minute, and our attempt to summon them without applying for a short service order from the Court. As a defense lawyer, as well as not personally having seen the witnesses, I got to know about their identities just before the issuing of the summons, the day before in the afternoon, and issuing a summons the same day, I sent it by hand to the British Sovereign Bases Police. It is not again in my knowledge whether these witnesses were personally served with these summonses. We produced no evidence that they had been duly served. For this reason, the claims that the witnesses for defense had been prevented or threatened are not in my knowledge. Nothing was done to put such an allegation before the Court in the form of evidence.” 135. On 17 July 2001 that letter was conveyed by Mr Rauf Denktaş to Mr Edward Clay, the British High Commissioner to Cyprus at the relevant time. 136. On 8 January 2001 Mr Rauf Denktaş sent the following letter to the UN Secretary General regarding the alleged abductions of the first applicant and of Mr Tekoğul. “I understand that letters of protest about the arrest by the Turkish Republic of Northern Cyprus police of one Panicos Tsakourmas [sic], aged 39, while in possession of drugs is being circulated in all directions by the Greek Cypriot leadership. It is alleged that the said Tsakourmas was abducted by Turkish Cypriots in retaliation to “the arrest” by the Greek Cypriot police of Turkish Cypriot Ömer Gazi Tekoğul at Pyla, a mixed village. Both Tsakourmas and the Turkish Cypriot Ömer Gazi Tekoğul, aged 42, are in custody pending their trial in respective courts, one in the Greek side and the other before the Assize Court to be held in February in the Turkish Republic of Northern Cyprus. Both sides allege that they were kidnapped by the police of the other side. Naturally, it is the relevant courts which will have to decide these issues. The allegation that Tsakourmas was arrested in retaliation to the unlawful arrest of Tekoğul is strenuously denied by the three policemen involved. But the case of Tekoğul is a clear case of abduction by Greek Cypriot policemen who, concealing their identity, pretended to be a good friend of Tekoğul until the day he was abducted by them. ... On 1 December 2000, at about 2040 hours [Tekoğul] had started his car, parked outside a Turkish coffee shop in Pyla, in order to go home when the two Greek Cypriot “friends” approached his car and beckoned him to enter their car for a chat. As soon as Tekoğul entered their car, he was hit on the head, and driven away in the direction of Larnaca. Shortly, four other Greek Cypriot policemen joined them and Tekoğul was taken into custody while his car, outside the coffee shop in Pyla, continued to run. Some hours later, the family was informed by neighbours about the car and Tekoğul’s father took it away. In the mixed village of Pyla, under United Nations control, the rule is that if anyone is arrested by either side, the United Nations should immediately be informed. This was not done in the case of Tekoğul. The family was informed about the said “arrest” 12 hours after the abduction. Tekoğul’s Greek Cypriot advocate Andreas Constantinou made this statement to the Cyprus Mail, on 28 December 2000. ‘I believe the police lied in their statements and I told the Attorney-General this when they said Tekoğul was arrested in the free areas, if they arrested him in free areas why didn’t police show us the car?’ All in all it is clear that Tekoğul was abducted in line with the well-known, and long practiced Greek Cypriot policy of harassing Turkish Cypriots. Abduction of wellknown or popular Turkish Cypriots had stopped for some time, but it appears that the practice is coming back unless United Nations authorities in Pyla take stern steps in this matter. In view of growing publicity about the Tsakourmas’ case I thought I should give this information to you for a fair appraisal of the situation.” 137. A report prepared by the SBA police on 17 December 2000 noted the following: “On 17/12/2000 at 1220 hrs, Turkish Cypriot leader Rauf DENKTAŞH [sic.] visited Pyla village... ... He was then interviewed by the Media. Amongst others he stated about TSIAKKOURMAS case: - He only knows that the arrest was affected within TCAs [Turkish Cypriot Administration]. - The arrest of TSIAKKOURMAS cannot be characterised that it occurred in retaliation to the arrest of the T/Cypriot, because everybody knows that he is employing about 15 Turkish Cypriot workers. - No negotiations are taking place for an exchange between the two prisoners. The matters are in the hands of the Courts.” 138. According to another report of the SBA police dated 12 January 2001, Mr Rauf Denktaş had allegedly said in a meeting with Sir David Hannay, Britain’s Special Envoy to Cyprus at the time, that he would be prepared to release the first applicant on bail if Ömer Gazi Tekoğul were also granted bail, because both suspects were suffering from health problems. 139. The applicants submitted as evidence an affidavit made by Mr J.C. before a notary public in Dublin, Ireland, on 10 December 2001. The relevant parts of his affidavit read as follows: “On the morning of Sunday 3.12.2000 at approximately 9.30 a.m., I received a telephone call whilst in my apartment within the UN compound in the UN Headquarters in Nicosia. The telephone call ... was from Mr M.İ. Mr M.İ. wanted to meet the Chief of Mission of UNFICYP. He did not tell me the reason ... I was unable to contact the Chief of Mission. Mr M.İ. then wished to speak to the Special Adviser to the Chief of Mission who was also Head of the Civil Affairs Branch. I failed to make contact with the Special Adviser and informed him accordingly. He was very agitated and I agreed to meet him to discuss what he described was a serious matter ... Mr M.İ. was very agitated and very concerned about the arrest of Ömer Gazi Tekoğul who, he alleged, was arrested in the UN buffer zone in the Pyla area. Ömer Gazi Tekoğul is a Turkish Cypriot, who was arrested by the Police of the Republic of Cyprus on the night of Friday 1.12.2000 being found in possession of a substantial amount of the illegal drug heroin. ... he [Mr M.İ.] told me to take down a protest about Ömer Gazi Tekoğul’s arrest. As he spoke, I noted his protest in my notebook. ... I then read out to Mr M.İ. the protest that he made in the format that I would present it which was as follows: 159. The Court notes that the parties presented different accounts as to how the first applicant came to be under the control of the “TRNC” authorities. While the Government contended that he had been caught in possession of drugs after having illegally crossed into the “TRNC”, the first applicant consistently claimed that he had been abducted within the SBA territory by “TRNC” agents in civilian clothes and had then been detained in the “TRNC” on the basis of fabricated charges of drugs smuggling. 160. According to the submissions of the Government, the location of the first applicant’s arrest was an issue that had been taken up and examined scrupulously by the “TRNC” courts. The first applicant’s lawyers had subjected the main prosecution witnesses to extensive cross-examination, and the prosecution had likewise cross-examined the witnesses called by the first applicant. After hearing those witnesses, the domestic courts had accepted the version of the facts as presented by the prosecution. It had accordingly been established that the first applicant had entered the “TRNC” illegally from the SBA, between boundary stones nos. 96 and 97 separating the British bases from the TRNC. He had apparently left his car in SBA territory, but the location of the arrest was within the borders of the TRNC. There were a few witnesses who had allegedly seen the first applicant’s car on the relevant morning; however, none of the passers-by had witnessed his arrest. Moreover, it was the Government’s opinion that the evidence given by the defence witnesses was far from coherent, even on the issue of the original location of the first applicant’s car. 161. Referring to the separate investigation conducted by the SBA police into the circumstances of the first applicant’s detention, the Government further maintained that that investigation had been based on a “reconstruction” of the incident and on statements taken from persons who could not be described as “independent” and detached from the adverse political atmosphere prevailing in southern Cyprus, bearing in mind that this was a highly publicised case at the time. Moreover, the statements taken by the SBA were not subjected to the scrutiny of a court of law. 162. As to whether there was any link between the arrest of the first applicant and that of Ömer Gazi Tekoğul, the Government contended that the reason why the two names had been pronounced together was that both men had gone through similar experiences and that the incidents had taken place within a very short span of time. During both the preliminary inquiry and the subsequent hearing before the Famagusta Assize Court, the first applicant’s lawyers had insisted on the alleged link between the two incidents. For that purpose, they had called the UN Liaison Officer in Cyprus at the material time, Mr J.C., to testify as to what Mr M.İ., the Director of Consular and Minority Affairs at the TRNC Foreign Ministry, had allegedly told him and they had protested when the said evidence was not allowed to be included in the case file for being hearsay. The Government could not understand, however, why the defence had not called Mr M.İ. directly as a witness so that he could testify on the content of his alleged statement, especially given that the domestic courts had the authority to compel M.İ. to testify. 163. The Government of Cyprus stated for its part that the evidence of a connection between the abduction of the first applicant and the earlier arrest of Mr Tekoğul was overwhelming. They referred in particular to the formal protest made by Mr M.İ. to the UN Liaison Officer, Mr J.C., and maintained that the first applicant had been targeted randomly in execution of the threat made in that protest. This was further evidenced by the numerous appeals made by the Turkish Cypriot side for the exchange of the applicant for Ömer Gazi Tekoğul, including by Mr Denktaş himself. 164. Furthermore, the exhaustive and independent inquiry conducted by the SBA police also supported unequivocally the conclusion that the first applicant had indeed been abducted within the territory of the SBA. The Government of Cyprus maintained that where the accounts of the parties were diametrically opposed, the Court had to give conclusive weight to independent evidence, which had been provided by the SBA investigation report in the instant case. They added that while the respondent Government had claimed that the “TRNC” courts had thoroughly examined the allegations of both sides, what took place before those “courts” was not in any way determinative of the way in which the Strasbourg Court should approach the evidence and did not constrain the Court in its fact-finding exercise. 165. In cases in which there are conflicting accounts of events, the Court is inevitably confronted, when establishing the facts, with the same difficulties as those faced by any first-instance court (see, for instance, ElMasri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 151, ECHR 2012). In this connection, the Court emphasises that it is sensitive to the subsidiary nature of its role, and that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. As a general rule, where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them. Though the Court is not bound by the findings of domestic courts and remains free to make its own assessment in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the reasoned findings of fact reached by the national judicial authorities, particularly where, as in the present case, the Court has not itself had the benefit of examining the relevant witnesses and forming its own assessment of their credibility (see Erdoğan and Others v. Turkey, no. 19807/92, § 71, 25 April 2006, and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 61, ECHR 2012). 166. Turning to the facts before it, the Court notes that following the preliminary inquiry held between 8 and 15 February 2001, the Famagusta Assize Court commenced criminal proceedings against the first applicant on 23 February 2001. During the three-month trial that ensued, the Assize Court was presented with a substantial body of evidence about the events of 13 December 2000, including oral testimony and documentary and photographic evidence submitted by both parties. Relying on that evidence, on 26 April 2001 the Assize Court ruled for the first applicant’s conviction for drug-related crimes. It held that, having carried out a comprehensive examination of the testimonies and documentary evidence presented to it, the “testimonies of the prosecution witnesses had been found to be credible, accurate and reliable”, whereas the “testimonies of the defendant and his witnesses had lacked credibility, accuracy and reliability”. The Assize Court thus accepted the facts as presented by the prosecution and convicted the first applicant on that basis. 167. While the Court has no reason to suspect that the trial court’s admission or assessment of the evidence before it was arbitrary per se, it notes that the Famagusta Assize Court provided no reasoning in relation to its findings of fact and assessment of evidence (see paragraph 84 above). The Court, therefore, cannot determine whether the judgment of the domestic court, which had not only the means but also the principal duty to clearly establish the facts contested by the parties, was the result of a fair and comprehensive consideration of the contradictory arguments before it, or whether it ruled in favour of the official version of the events presented by the prosecution following a perfunctory assessment that did not give sufficient regard to the first applicant’s serious claims. The absence of such reasoning not only has implications visà-vis certain procedural rights of the applicant, which will be examined in further detail below, but also detracts from the reliance which might otherwise have been placed on the trial court’s judgment by the Court. In these circumstances, the Court is compelled to make its own assessment of the facts on the basis of the evidence before it. 168. The Court reiterates in this connection that in assessing evidence in this context, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard: as applied by the Court, it has an autonomous meaning (see Mathew v. the Netherlands, no. 24919/03, § 156, ECHR 2005IX for further details). According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion is intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, amongst others, Mathew, cited above, § 156). 169. In the light of the foregoing principles, and the gravity of the allegations submitted by the applicants, the Court will subject the evidence presented by the parties to careful scrutiny in order to come to a conclusion regarding the circumstances in which the first applicant was apprehended on 13 December 2000. 170. The Court notes at the outset that the first applicant was not able to present a direct and reliable eyewitness to corroborate his account of the events. He claimed before the Court that the driver of the white Isuzu pickup with registration number UJ 100, who had been driving ahead of him on the morning in question, must have witnessed his abduction. However, he made no such claims during the domestic proceedings, nor, to the Court’s knowledge, was any attempt made to call that person as a witness. 171. The Court notes that the only defence witness who claimed to have seen what took place on the relevant morning, a Greek Cypriot contractor named Mr N.M., contradicted the first applicant’s account of the events. In his statement before the Famagusta Assize Court, N.M. claimed that on the morning of the incident, he had seen a man getting out of a red pickup parked on the main Pyla-Pergamos road, which was the only car around. Three to four other men were in the fields to the right side of the road. One of them was being dragged by the arms and pleading to be let go (see paragraph 70 above). According to the account presented by the first applicant, however, there were at least two other cars on the road that had been used for his abduction, and after a struggle, he had been transferred directly from his car to the red Renault. Moreover, the first applicant made no mention of being dragged across the field by the side of the road, as alleged by N.M. The Court observes that the first applicant made no attempt to offer an explanation for N.M.’s conflicting account. 172. As for the other witnesses called by the first applicant during the domestic proceedings, including a number of SBA police officers, the Court notes that they mainly provided information as to the location and the state in which the first applicant’s car had later been found in the SBA, and that there were some inconsistencies as to its exact location and state. Only two witnesses, Mr G.H. and Mr A.G., who were apparently driving a few minutes ahead of the first applicant on the morning in question, claimed to have seen the red and the white Renault cars that were allegedly used to orchestrate the first applicant’s abduction. However, the descriptions they provided in relation to those cars were somewhat inconsistent: whereas G.H. claimed that there was a white Renault parked on the left-hand side of the road with its bonnet open, and a red Renault to the right of that white car, A.G. stated that the car parked on the left-hand side of the road with an open bonnet had been a red Renault, and that the white Renault had been waiting on the opposite side of the road by some cypress trees and had flashed its lights at him. Even more striking was the fact that in his earlier statement to the SBA police on 19 December 2000 – that is, only six days after the incident – A.G. had not mentioned anything about a white car, which is hard to explain considering his later claim that that car had flashed its headlights at him. Moreover, as already mentioned in paragraph 122 above, the statement of G.H. before the Famagusta Assize Court did not match his earlier statement to the SBA police. 173. While the Court is ready to accept that some of the discrepancies noted above, in particular those concerning the exact state in which the first applicant’s car was found, may be explained by the differences in the subjective assessments of individual witnesses and the passage of time, it considers in any event that the establishment of the location and the circumstances in which the car was found, despite the many valid questions it raises, does not on its own shed light on the circumstances in which the first applicant was detained. Similarly, the fact that the sniffer dog found no traces belonging to the first applicant around his abandoned car or any other traces in the fields, although it must certainly have been taken into account by the trial court in its consideration as to how the first applicant had reached “TRNC” territory, does not as such rebut the Government’s allegations regarding his capture, particularly in view of Mr N.M.’s conflicting statement that he had seen a number of persons in the fields, whose tracks the dog did not pick up either. The Court stresses in this connection that the evidence presented by the applicants is not even sufficient to establish whether the first applicant himself was driving his car on the relevant morning or whether he was alone in the car. 174. Although the applicants alleged that a number of important Turkish Cypriot witnesses had been unable to testify in the first applicant’s favour on account of the threats to which they had been subjected, the Court cannot make a conclusive finding on that issue either, particularly in view of the statements of Mr M. Aziz, the first applicant’s lawyer, to the trial court and to Mr Rauf Denktaş suggesting his unawareness of such intimidation (see paragraphs 83 and 134 above, respectively), and given that there were no real attempts to substantiate the allegations of witness intimidation before the trial court during the criminal proceedings. 175. The Court also observes that although the first applicant referred in his application before the Court to a Turkish Cypriot detainee who had allegedly been asked by the “TRNC” police to falsely admit to being his drugs contact in the “TRNC” (see paragraph 29 above), the evidence in the case file indicates that he did not draw that serious allegation to the attention of his lawyers or the domestic courts, nor did he subsequently reiterate it in his statement to the SBA police following his release. 176. The Court further takes note of the separate investigation conducted by the SBA police into the circumstances of the first applicant’s detention, which resulted in a finding that he had been “taken from his vehicle at the locus where that vehicle was abandoned – well within the Eastern Sovereign Base Areas” (see paragraph 129 above). The Court observes in this connection that according to the documents submitted to it, the SBA police interviewed more than a hundred people within the framework of that investigation, and that it found the opportunity to review all of those interviews. As explained in detail in the “Facts” section, amongst the interviewees were the defence witnesses who subsequently appeared before the Famagusta Assize Court, a number of Turkish Cypriots who either worked for the first applicant or knew him otherwise, some other Greek Cypriot builders who had used the Pyla-Pergamos road on the relevant morning, as well as the residents of some of the houses in the vicinity. Even though the assessment of the SBA police may appear plausible having regard to the place where the applicant’s car was found and the latter’s state as well as the official information about the place of the applicant’s arrest, this assessment does not constitute sufficient evidence in support of the applicant’s account of events (see also paragraph 187 below). 177. The Court observes in the first place that none of the residents of the area where the first applicant allegedly abandoned his car in the SBA or crossed into the “TRNC” had seen anything suspicious on the morning in question. Similarly, none of the other Greek or Turkish Cypriot persons interviewed provided any additional information to that subsequently presented to the Famagusta Assize Court. Some of them had no information to share with the SBA police, other than the rumours they had heard; some others stated that they had not seen anything suspicious, not even the first applicant’s car, even though they had also used the Pyla-Pergamos road at around 6.30 to 7 a.m. that morning. Others, however, attested to having seen the first applicant’s abandoned car, although again with some inconsistencies as to its location and state – such as which way the car was facing, whether its engine was running, whether and if so which doors of the car had been left open and whether the headlights were on. The Court stresses at this juncture that the car had been moved to another spot following the instructions of the first applicant’s brother prior to the arrival of the SBA police officers at the scene of the incident. Therefore, the official SBA records only included second-hand information on where and in what condition the first applicant’s car had originally been found, instead of photographs or other such direct evidence. 178. In the Court’s opinion, four statements made to the SBA police are worth a special mention. The first three of those statements, made by N.M., G.H. and A.G. have already been discussed in detail in paragraphs 171 to 172 above. The fourth statement that the Court wishes to highlight is that of Mr V.Z., the Greek Cypriot contractor who owned the aforementioned white Isuzu pickup with registration number UJ 100, whose statement has been summarised in paragraph 124 above. The statement given by V.Z. regarding his employee X’s alleged witnessing of the first applicant’s abduction does not correspond to the latter’s testimony. Whereas the first applicant alleged that the white Isuzu had been travelling ahead of him in the direction of Pergamos, and had actually stopped by the red Renault car and talked briefly to the persons standing in front of that car before driving away towards Pergamos, V.Z. claimed that X was travelling from Pergamos to Pyla, namely in the opposite direction, and had driven past the cars in question as the first applicant was being dragged out of his car, without stopping. The Court also finds it curious that although V.Z. informed the SBA police of X’s alleged eyewitness account as early as 16 December 2000, neither V.Z. himself, nor Kyriacos Tsiakkourmas or the SBA police officer who had allegedly tracked X down had been called as witnesses by the defence during the subsequent criminal proceedings against the first applicant before the Famagusta Assize Court. 179. The Court also notes the contradictions in some SBA police reports regarding the circumstances in which the first applicant was abducted. While the first applicant had claimed during the domestic proceedings and subsequently before the Court that he had been forced to stop after his car had been intercepted by a white Renault on his way to Rabiye’s café (see paragraphs 17 and 66 above), according to an SBA report dated 15 December 2000, he claimed that he had been forced out of his vehicle only after he had willingly stopped to offer assistance to a car which appeared to have an engine problem (see paragraph 126 above). Moreover, although the first applicant stated before the domestic courts and the Strasbourg Court that his abductors had personally handed him over to the Turkish Cypriot police and that he had not seen the drugs which he was accused of smuggling until later in the day at the police station (see paragraphs 20 and 26 above), two SBA police reports dated 15 and 16 December 2000 noted that the first applicant had been arrested by the Turkish Cypriot police after his abductors had abandoned him in the vicinity of an airport with a package of drugs (see paragraphs 126 and 127 above). 180. Apart from taking witness statements, the SBA police also conducted a crime-scene investigation. It has already been mentioned above that the sniffer dog was not able to find any tracks in the vicinity of the car that could have shed light on the events, nor were any traces of prohibited substances found inside the car. The Court also notes, however, that whereas the doors and the windows of the car were dusted for fingerprints, there is no information to suggest that foreign fingerprints were identified on the car, although the first applicant alleged that he had been dragged out of his car by force and his car was subsequently moved from its original location. 181. Lastly, during the preliminary inquiry the UN Liaison Officer, Mr J.C., made a statement regarding a meeting he had had with Mr. M.İ. on 3 December 2000 (see paragraph 56 above). The first applicant relied on that statement to argue that he had been kidnapped in retaliation for Ömer Gazi Tekoğul’s earlier arrest by the Greek Cypriot authorities. While the Court has no reason to doubt the independence and impartiality of Mr J.C., it is not prepared to give decisive weight to that untested circumstantial evidence. The Court also notes in this connection that the applicants have failed to respond to the Government’s query as to why Mr M.İ. was not summoned to testify before the Famagusta Assize Court, which would have had the power to compel him to attend (see paragraph 162 above). 182. In support of their arguments the Government chiefly relied on the evidence presented by the prosecution during the domestic proceedings, which consisted mainly of the official incident reports, as well as photographs and sketches of the relevant area where the first applicant had allegedly crossed into the “TRNC”. 183. Like the first applicant, the Government did not present any eyewitnesses who could attest to their version of the events. According to the testimony of the three police officers from the drugs branch who had allegedly caught the first applicant in flagrante delicto, they were the only ones present at the scene of the incident, apart from the applicant himself. Subinspector Ü.Ö. claimed during the domestic proceedings that apart from his superintendent and the other two officers who had accompanied him that morning, no other officers or authorities had been informed of the tipoff call that he had received on 12 December 2000 from his informant, nor had advance notice been given to anyone else about the operation, including the officers on duty at the Pergamos checkpoint. Unfortunately, the Court is not in a position to verify the accuracy of any of that information, nor can it turn to the Famagusta Assize Court for such verification. As already indicated above, the Assize Court did not engage in a satisfactory discussion as to the veracity of the evidence before it. 184. The Court observes from the information in the case file that the forensic evidence submitted by the prosecution during the domestic proceedings was limited to an examination of the mud recovered from the first applicant’s shoe on the date of his arrest, which partially matched the soil sample extracted from the area where he had allegedly crossed into the “TRNC”. No fingerprint examination was conducted on the package of cannabis resin allegedly seized from the first applicant; it was explained that since the package had been taken directly from his hands by Sub-inspector Ü.Ö. himself, it had been deemed unnecessary to submit it for a fingerprint examination. Moreover, although the area where the first applicant had allegedly crossed into the “TRNC” had been photographed, including a couple of photographs showing footmarks allegedly belonging to the first applicant, it does not appear that any detailed examination was made to match those marks to his footwear. 185. The Court lastly notes that amongst the evidence submitted by the Government was also the sketched map of the area between border stones nos. 96 and 97, showing the point where the first applicant had allegedly entered the “TRNC”, as well as photographs of the same area. According to those photographs, the top of the fence in the relevant area had no barbed wire and was deformed in some parts, which the Government argued had made it easier for the applicant to jump over. 186. The Court is of the opinion that the arguments and evidence submitted by the first applicant, albeit inconclusive and inconsistent in some respects, raise serious suspicions about the official account of events presented by the Government, particularly when viewed against the backdrop of the political climate on the island at the material time. The fact that the first applicant was arrested in “TRNC” territory for smuggling drugs only some ten days after the controversial arrest of Mr Ömer Gazi Tekoğul by the Greek Cypriot authorities, which apparently led to some strong protests from the Turkish Cypriot side, may cast some doubts on the accusations brought against him. Moreover, whereas the allegation remains that the first applicant entered the “TRNC” between border stones nos. 96 and 97 separating the SBA from the “TRNC”, the Court notes that the domestic authorities, including the trial court, do not appear to have concerned themselves much with how he may have arrived there. Thus, they failed to establish where and in what condition he had left his car and which route he had followed, despite the consistent allegations that the car had been found abandoned on the wrong side of a road with its engine running and doors open. 187. The Court nevertheless considers that in view of the gravity of the first applicant’s allegation that he was abducted from SBA territory by or with the connivance of “TRNC” agents, it needs very compelling evidence before it can uphold the allegation. In this connection, the Court wishes to emphasise that although it has no reason to doubt the independence of the investigation conducted by the SBA police, the findings that emerged from that investigation were not submitted to the scrutiny of a court of law and thus remain untested. 188. The Court is mindful of the fact that the difficulties it has encountered in establishing the facts are due, to a large extent, to the domestic judicial authorities’ failure to discharge their duty to subject the evidence before them to a critical and thorough analysis in a reasoned judgment. However, while that significant failure certainly raises procedural issues that will be examined below in particular within the context of Article 5 § 4, it does not provide a sufficient evidentiary basis to allow the Court to find that the first applicant’s allegations can be considered proven in accordance with the requisite standard of proof under the Court’s case-law. 189. In view of the foregoing explanations and all the material before it, and while it in no way disregards the seriousness of the allegations made by the first applicant, the Court cannot but hold that there is an insufficient evidentiary basis on which to conclude that the first applicant was kidnapped from SBA territory by, or with the connivance of, “TRNC” agents.
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test
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001-145653
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ENG
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FRA
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CHAMBER
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CASE OF TANDA-MUZINGA v. FRANCE
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Preliminary objection dismissed (Article 37-1 - Striking out applications;Article 37-1-b - Matter resolved);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award
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André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
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5. The applicant was born in 1970 and lives in Venissieux. A. Facts at the time the application was lodged 6. In the course of 2000 the applicant, a Congolese national, was granted refugee status under the mandate of the United Nations High Commissioner for Refugees in Cameroon (hereafter UNHCR/Cameroon). According to his certificate of refugee status, he was accompanied by his wife, who also held such a certificate, and his children (Vanessa Ntabugi, born in the Democratic Republic of Congo in 1994, and Michelle Tanda-Ngubiri, born in 2001 in Cameroon). The couple had a third child (Benjamin Tanda) who was born in Yaoundé (Cameroon) in 2004, but the applicant was absent when his son was born, having left Cameroon to claim asylum in France. 7. On 19 July 2004 the French Office for the Protection of Refugees and Stateless Persons (hereafter, the OFPRA) rejected his claim. On 6 August 2004 the applicant appealed against that decision. By a decision of 8 February 2007, the Refugee Appeals Board (the Commission des recours des réfugiés, formerly the National Asylum Tribunal, the Commission nationale du droit d’asile, CNDA) granted the applicant refugee status. He obtained a ten-year residence permit and in April 2007 the OFPRA issued him with a marriage certificate and a family record book (livret de famille), serving as civil-status documents. 8. By a letter of 26 June 2007, for the purpose of family reunion and on the basis of the “family reunification” procedure for certified refugees (see paragraph 36 below), the applicant applied for long-stay visas for his wife and three children. By a letter of 28 June 2007, the Movement of Aliens Section at the Ministry of Foreign Affairs informed the applicant that it would contact the OFPRA to verify, on the basis of the statements which had enabled him to be granted refugee status, whether those persons were indeed members of the family group, before contacting the French consular services in Yaoundé with a view to compiling an application file for long-stay visas. 9. By a letter of 13 February 2008, the Visa Section at the Ministry of Immigration informed the applicant that the consular services in Yaoundé would be summoning his family for an interview. 10. The applicant’s wife was requested to attend an interview at the consulate on 21 February 2008. After she had submitted the necessary documents for compiling the application, the consular authorities asked her to contact the UNHCR/Cameroon delegation to obtain travel papers for herself and her children, in accordance with the Convention of 28 July 1951. She was assured that once she had brought those documents to the consulate she would be issued with an acknowledgement of receipt of the visa application. On 18 March 2008 the applicant’s wife submitted to the consulate a travel document, issued in her name after a favourable opinion had been obtained from the Cameroonian Ministry of External Affairs. This document, which could substitute a national passport, indicated that she was accompanied by her three children. She did not receive an acknowledgment of receipt of her visa application. Having received no news on examination of his request, the applicant applied to various authorities, including the consulate in Yaoundé, for information as to why the visas had not been issued, and included a copy of all of the documents in his possession, including his residence permit, the reconstituted documents issued by the OFPRA, his wife’s certificate of refugee status, the document serving as his elder daughter’s birth certificate, and the birth certificates of the two other children. 11. On 30 May 2008 the applicant lodged an appeal with the Appeals Board against Decisions to refuse Entry Visas to France (the CRRV, hereafter the “Appeals Board”), against the consular authorities’ implicit refusal. 12. By a letter of 3 June 2008, the OFPRA replied to a letter from the applicant dated 24 January 2008 in the following terms: “I have the honour to inform you that on 23 July 2007 the Office certified your family’s situation to the visa section. You are registered with the Office as the husband of Mrs Julie Ngubiri Zirirane and father of three children (Vanessa Ntabugi, born on 28 December 1994; Michelle Tanda, born on 4 June 2001; and Benjamin Tanda, born on 3 September 2004). I further observe that your family has been or will shortly be invited to lodge an application for a visa with the consular authorities in Yaoundé”. 13. On 11 June 2008 the applicant lodged an urgent application before the Conseil d’État, requesting a stay of execution of the consular authorities’ implicit decision to refuse the visas. 14. On 12 June 2008 the Conseil d’État acknowledged receipt of the appeal for abuse of authority lodged by the applicant calling for judicial review of this implicit decision. 15. By an order of 23 June 2008, the urgent-applications judge at the Conseil d’État dismissed the urgent application for a stay of execution, on the grounds that the Appeals Board had not yet ruled on the matter. 16. On 30 July 2008, after two months without any reply from the Appeals Board, which amounted to implicit rejection, the applicant lodged a new urgent application for a stay of execution, as well as an urgent application for protection of a fundamental freedom (requête en référé-liberté), dated 3 August 2008. 17. By an order of 13 August 2008, the urgent-applications judge at the Conseil d’État rejected the urgent application for protection of a fundamental freedom. 18. By a letter of 13 August 2008, the applicant was summoned to a hearing on the urgent application for a stay of execution, scheduled for 10 September 2008. The applicant, who attended the hearing on that date, learnt of pleadings by the Minister of Immigration, which he received only on 12 September, contesting the birth certificates of his children Michelle and Benjamin. Following this hearing, the applicant submitted a memorandum for the deliberations. 19. According to the Government’s observations, the transcripts of the certificates obtained on 13 and 23 April 2008 from the relevant local authorities had revealed that birth certificate no. 1271 held by the civil-status authorities of the 4th arrondissement of Yaoundé concerned the birth of a boy and not that of Michelle Tanda, and that birth certificate no. 78/2004, held by the civil-status authorities of the 2nd arrondissement of Yaoundé, concerned the birth of a girl and not that of Benjamin Tanda. 20. On 16 September 2008, the urgent-applications judge informed the applicant that he had decided to reopen the investigation in the case and that he had communicated the memorandum for the deliberations to the relevant Minister for Immigration. 21. By an order of 26 September 2008, the Conseil d’État dismissed the urgent application for a stay of execution: “[the applicant] alleges that ... the criterion of urgency has been met, in that he has been living separately from his wife and children for almost four years; [that the impugned decision] is tainted by error of law, in that by refusing to issue visas on the grounds that certain civil-status documents were absent, it breached Article 11 of Directive (EC) no.200/86 of 22 September 2003 on the right to family reunification; ... that the submitted documents cannot be considered of doubtful authenticity; that he [had] provided evidence establishing his family ties with his wife and his children; that his children’s birth certificates had been registered by the Office of the High Commissioner for Refugees; ... the Minister alleges ... that the criterion of urgency has not been met, in that responsibility for the separation lies with the applicant; that the latter has not established that he has maintained regular written or telephone contact with his family or has contributed to their upkeep since his departure; that the argument alleging a breach of the Directive of 22 September 2003 is ineffective, in so far as it has been correctly transposed into domestic law and cannot therefore have direct effect; that this text does not require the national authorities to issue a visa to an applicant who has not established his or her filiation with the refugee; that the submission of fraudulent documents is a public policy reason justifying the rejection of visa applications submitted in a family context; ... It appears from the facts of the case ... that visa applications submitted by [the applicant], who has refugee status in France, in respect of his wife Julie B. and his three children, Vanessa C., Michelle D. and Benjamin D., were refused on the grounds that filiation had not been established for the latter two children on account of the doubtful authenticity of the submitted birth certificates; the argument that such a ground could not be a legal basis for the decision to refuse [the visas] is not such, as the evidence stands, to give rise to serious doubts as to the lawfulness of this decision, in view of the outcome of the civil-status verifications carried out by the French Consulate General in Yaoundé and the fact that the fraudulent nature of the request was such as to entail refusal not only of visas applied for in respect of these two children, but also in respect of his wife and his third child...” 22. On 6 October 2008, in the context of an appeal for judicial review, the relevant Minister filed a memorial concluding that the birth certificates of Michelle and Benjamin Tanda were fraudulent. With regard to the alleged violations of Articles 3 and 8 of the Convention, he responded that it had already been shown that the applicant had abandoned his wife and putative children, that the parent-child relationship had not been established and that the applicant had not shown that he had maintained ties with them. The applicant responded by arguing that an anomaly in the referencing of the birth certificates was not sufficient to establish the doubtful authenticity or fraudulent nature of the documents submitted by his wife. He noted firstly, with regard to Benjamin’s birth certificate, “that it was not certain that the certificate sought by the authorities was related to the document in question, given that the first component of its reference number seemed to be made up of three figures, rather than two (“?78/2004”) (see paragraph 19 above), which would be more coherent, given the date it had been drawn up, in September 2004”. He argued that the Minister did not explain how UNHCR/Cameroon had issued a Family Composition Certificate (dated 26 September 2008, referring to his wife and his three children) and official travel documents permitting his family to travel internationally. He pointed out that he had submitted to the court correspondence from the Cameroonian Ministry for External Relations, dated 11 March and 13 August 2008, drawn up in the context of the checks conducted with a view to issuing those travel documents (travel document for the child Michelle, issued on 26 August 2008 following the favourable opinion of 13 August 2008). He added that the authenticity of the other documents submitted to the court had not been called into question, namely the declaration of Michelle’s birth, issued by the Cité Verte District Hospital in Yaoundé, and the declaration of Benjamin’s birth, issued by the Yaoundé Police Medical Centre, nor that of the travel documents for his first two children, drawn up on 26 August 2008. Lastly, he indicated that other evidence submitted to the court, photographs and bank transfer statements, invalidated the Immigration Ministry’s arguments as to the reality of his ties with his wife and children. 23. On 7 October 2008 UNHCR/Cameroon drew up a “certifiate of parenthood”, stating that the applicant and his wife were the legitimate parents of the children known as Michelle Tanda-Ngubiri and Benjamin Tanda. 24. By a letter of 22 May 2009, the applicant’s lawyer informed him that a hearing had taken place before the Conseil d’État on 20 May 2009; the public rapporteur had proposed that his appeal be dismissed and had suggested that judicial rectification of the civil-status documents of the children concerned be carried out in Cameroon. 25. By a judgment of 8 July 2009, served on 5 August, the Conseil d’État rejected the appeal. It pointed out that the transcripts of the certificates, obtained by the French authorities in the Cameroonian civil-status offices for the purpose of verifying the civil-status documents of the two children born in that country, had shown that two totally different birth certificates had been issued under the same reference numbers, and concerned third parties. It considered that even if the fraudulent nature of one of the two certificates had not been demonstrated, this did not create any doubt as to evidence of the inauthenticity of the second certificate, and concluded that “in those circumstances, neither the submission of declarations of birth from the Yaoundé Maternity Hospital and the Yaoundé Police Medical Centre, not the allegation that this discrepancy originated in dysfunctions within the Cameroonian civil-status authorities, allow for the fraudulent nature of at least one of the documents thus produced to be set aside”. Lastly, it specified that the fraudulent nature of at least one of the submitted documents was such as to entail refusal of all of the requested visas. 26. On 16 July 2009 a psychologist from the Comité inter-mouvements auprès des évacués (CIMADE) certified that the applicant’s psychological health had deteriorated, and described a worsening state of depression. She submitted that “in addition to the traumatic events experienced in his country, [the applicant] is currently developing reactional depression as a result of the separation from his family, which has lasted for several years... Although he was simultaneously actively engaged in preparing a professional insertion plan, the applicant is finding it increasingly difficult to take the necessary steps and is sliding into a form of apathy”. 27. In a letter of 17 July 2009, the applicant’s lawyer confirmed that the appeal had been dismissed and informed him that the public rapporteur’s closing arguments were not available in writing. 28. Following that decision, the applicant contacted the UNHRC/Paris Office and the Director of the OFPRA. By a letter of 18 August 2009, the former replied that, according to the information communicated by the Cameroonian delegation, the French Consulate in Yaoundé was willing to issue a visa to his wife and to two of his children, Vanessa and Benjamin. With regard to the birth certificate for his daughter Michelle, he was advised to submit a request to the Yaoundé tribunal de grande instance for a supplementary judgment relating to a birth certificate. By a letter of 21 August 2009, the Director of the OFPRA wrote to the CIMADE, which had also received the applicant’s file; he was considering transferring his refugee status to another country. In that letter, the Director pointed out that his department, by a memorandum of 23 July 2007, had certified his family situation to the sub-directorate for visas in Nantes, the only administrative body with competence for the family reunification of foreigners. 29. The applicant’s wife brought proceedings before the Yaoundé Court of First Instance, seeking to obtain a supplementary judgment concerning Michelle’s civil status. By a judgment of 27 October 2009, that court declared that it did not have jurisdiction. On 24 February 2010 she brought proceedings before the Yaoundé tribunal de grande instance for the same purpose. 30. By a decision of 30 April 2010, following a further request by the applicant’s family, the consular authorities refused to issue long-stay visas. 31. According to the Government, new checks carried out in 2010 established that it had been possible to authenticate Benjamin’s birth certificate but the doubtful authenticity of the birth certificate produced for Michelle, which had been double-checked, had prompted the consular authorities to maintain their refusal to issue visas to the whole family. 32. On 18 June 2010 the applicant brought proceedings before the Appeals Board against the decision of 30 April 2010. His request was implicitly refused. B. Facts which occurred after communication of the application 33. On 20 September 2010 the applicant applied to the urgent-applications judge at the Nantes Administrative Court seeking an order for a stay of execution of the Appeal Board’s implicit decision to refuse his request. By an order of 28 October 2010, the urgent-applications judge ordered a stay of execution of that decision on the ground that the reasons for the rejection had not been communicated. He added: “... further, as the evidence stands, although there is uncertainty as to the parent-child relationship in respect of one of the three children, Michelle, [the applicant] refers, without however submitting it, to a supplementary judgment which purportedly substantiates his allegations; having regard to the length of time that the applicant has been separated from his family, the criterion of urgency is met; ... it is appropriate to direct the Minister to re-examine the visa application within one month of notification of the present order”. 34. According to the applicant, on 19 November 2010 UNHCR/Cameroon’s lawyer forwarded to him, and to the French authorities, the original copy of a judgment delivered by the Yaoundé tribunal de grande instance on 3 June 2010, reconstituting the birth certificate for the child Michelle. That judgment indicates that, on the day following Michelle’s birth, a declaration of birth had been duly drawn up by the doctor at the Yaoundé Cité Verte Hospital and handed to her mother, for the purpose of having the child’s birth certificate issued by the Yaoundé IV district office. However, as the applicant’s wife had been unaware of the rules in force in Cameroon for this administrative procedure, she had entrusted this declaration of birth to a third party, who had demanded and obtained from her the sum of 20,000 Central African francs (CFA) in order to obtain the birth certificate; this third party had given her a document presented as birth certificate no. 1271/2001, allegedly drawn up and signed by the mayor of Yaoundé IV. The tribunal de grande instance specified that since this document was a forgery Michelle’s birth certificate had never been issued, and it ordered that this step be taken. 35. By a letter of 17 January 2011, the Government informed the Court that on 8 December 2010 the French consular authorities had issued the long-stay visas requested by the applicant’s wife and children. They alleged that, during the period in which the visa applications were re-examined, the applicant had communicated to the consular authorities the judgment of 3 June 2010 to which he had referred but had not produced in the course of the proceedings. ...
| 1 |
test
|
001-178504
|
ENG
|
TUR
|
COMMITTEE
| 2,017 |
CASE OF YİVLİ v. TURKEY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)
|
Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström
|
5. The applicant was born in 1979 and lives in Hatay. 6. The applicant was an officer in the Army. Based on classified investigation reports, his contract was terminated. He had no access to the classified reports. On 8 June 2009 the applicant initiated proceedings against the Ministry of Defence with the Supreme Military Administrative Court to have annulment of the impugned decision. 7. Relying on the classified investigation reports, and the written opinion of the public prosecutor, which were not communicated to the applicant, on 16 March 2010 the Supreme Military Administrative Court dismissed the applicant’s case. On 18 May 2010 the applicant’s request for rectification was also rejected by the Supreme Military Administrative Court. The final decision was notified on the applicant on 8 June 2010.
| 1 |
test
|
001-139999
|
ENG
|
SVK
|
CHAMBER
| 2,014 |
CASE OF SCHVARC v. SLOVAKIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
|
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
5. The applicant was born in 1978 and habitually resides in Krupina. 6. On 20, 21 and 22 May 2009 respectively the applicant was arrested, charged and remanded in custody on suspicion of unlawful production, possession and trafficking in drugs within the meaning of Article 172 § 1 (c) of the Criminal Code, on grounds that, if left at liberty, he would continue offending. 7. On 22 July 2009 the applicant requested release, and in support of his request he offered a pledge that he would live in accordance with the law and that he would not interfere with the course of justice. 8. On 3 August 2009 the Zovlen District Prosecutor found no reasons for releasing the applicant and transmitted his request to the Zvolen District Court (Okresný súd) for a judicial determination with a proposal that the request be dismissed. 9. On 19 August 2009 the District Court examined the request in chambers (neverejné zasadnutie), following which, on the same day, the request was dismissed. The District Court observed, inter alia, that by a judgment of 23 April 2009 the applicant had been convicted of theft. 10. Immediately after the decisions of 19 August 2009 had been pronounced, the applicant submitted an oral interlocutory appeal (sťažnosť), which he later amended with the assistance of his lawyer. 11. The written version of the District Court’s decision of 19 August 2009 was served on the applicant on 24 September 2009. 12. On 8 October 2009, sitting in chambers (neverejné zasadnutie), the Banská Bystrica Regional Court (Krajský súd) dismissed the applicant’s appeal, fully endorsing the reasoning of the District Court, adding that, at the same time, the applicant was also being prosecuted for other drugrelated offences. 13. On 16 October 2009 the written version of the Regional Court’s decision was transmitted to the District Court, which was responsible for ensuring service of that decision on the applicant. Service was effected on 30 October 2009. 14. On 11 November 2009 the applicant lodged a complaint with the Constitutional Court (Ústavný súd), relying on Articles 127 of the Constitution and 5 § 4 of the Convention, challenging the length of the proceedings relating to his request for release, and claiming 1,500 euros (EUR) by way of just satisfaction. In support of the latter claim, he submitted that, while his request for release had been under examination, he had been in a state of legal uncertainty, which had had a particularly severe effect on his state of mind since he had been deprived of liberty. 15. On 20 January 2010 the Constitutional Court appointed the applicant a legal-aid lawyer and, on 18 February 2010, it declared the complaint admissible. 16. On 30 March 2010 the Constitutional Court issued a judgment (nález) finding a violation of the applicant’s right to a speedy review of the lawfulness of his detention within the meaning of Article 5 § 4 of the Convention. At the same time, it awarded him EUR 500 in compensation for non-pecuniary damage. The amount was not explained by any particular reasons. The written version of the constitutional judgment was served on the applicant on 24 May 2010.
| 1 |
test
|
001-156522
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF M. AND M. v. CROATIA
| 1 |
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
|
Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
|
I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 5. The applicants were born in 1976 (the second applicant) and 2001 (the first applicant) respectively and live in Zadar. 6. On 23 June 2001 the second applicant married Mr I.M. 7. On 4 September 2001 the second applicant gave birth to the first applicant. 8. Relations between the spouses deteriorated, and in 2006 the second applicant brought a civil action against her husband seeking divorce, custody of, and maintenance for the first applicant. Her husband I.M. filed a counterclaim, seeking custody of the first applicant. 9. In the period between 5 July 2006 and 7 March 2008 a total of eight criminal complaints were filed against the second applicant and I.M. Most of these complaints were filed against each other directly, but some were filed at the initiative of the police. Three of those eight complaints resulted in criminal proceedings being instituted (two against I.M. and one against both I.M. and the second applicant), the outcome of which is unknown. The remaining five criminal complaints were dismissed, including three in which it was alleged that criminal offences of child abuse and domestic violence had been committed against the first applicant. 10. By a judgment of 24 August 2007 the Zadar Municipal Court (Općinski sud u Zadru): (a) granted the second applicant and I.M. a divorce; (b) awarded I.M. custody of the first applicant; (c) granted the second applicant access (contact) rights; and (d) ordered the second applicant to make regular maintenance payments for the first applicant. In so deciding the court relied on the opinion of forensic experts in psychology and psychiatry obtained during the proceedings and on the recommendation of the Zadar Social Welfare Centre (Centar za socijalnu skrb Zadar, hereafter “the local social welfare centre”) which participated in those proceedings as an intervener sui generis with a view to protecting the first applicant’s interests. The judgment became final on 2 January 2008. 11. Previously, by a decision of 7 November 2006 the local social welfare centre had ordered a child protection measure of supervision of the exercise of parental authority in respect of the first applicant. The measure was imposed with a view to improving communication between the second applicant and I.M. regarding the first applicant, and also with a view to preventing her from being drawn into their conflict. The measure lasted until 31 August 2008, when it was discontinued. In its decision of 2 September 2008 the local social welfare centre stated, inter alia, the following: “The measure only partly achieved its goal, in that contact with the mother has stabilised. The parents still do not communicate with each other and it is evident that the mother intends to continue with such behaviour. Furthermore, the mother’s cooperation with the supervising officer is not adequate and it is evident that the measure has become futile.” 12. The applicants submit that on 1 February 2011 the first applicant’s father I.M. hit her in the face and squeezed her throat while verbally abusing her. 13. The next day the second applicant took the first applicant to the police to report the incident. The police instructed them to see a doctor and accompanied them to the local hospital, where the first applicant was examined by an ophthalmologist, who diagnosed her with bruising of the eyeball and eye socket tissue. In particular, the ophthalmologist noted: “Clinically discrete haematoma of the left lower eyelid, in resorption. The motility of the eyes is normal, no diplopia [double vision], no clinical signs of orbit fracture. Pupils are normal, lenses [are] in place, transparent, fundus [is] normal on both sides. Dg.: Contusio oc.sin. Haematoma palp.inf.oc.sin. Treatment: cold wraps [compresses] ... Into the eye: Effludimex sol ... Dg: S05.1. Bruising of the eyeball and the eye socket tissue” 14. After examining the first applicant the ophthalmologist filled in a standard form to be submitted to the police, in which he indicated that the injury had been inflicted by a hard blow to the left eye, gave bruising of the left eyelid (haematoma palp.inf.oc.sin.) as his diagnosis, and described the injury as light. 15. The applicants then returned to the police, where they both gave statements. In her statement the first applicant mentioned other instances of physical and psychological violence by her father in the past three years. The relevant part of the police record of the interview conducted with the first applicant reads as follows: “This interview was conducted regarding the violent behaviour of the [child’s] father I.M. [The child] stated that yesterday around 4 p.m., when she was getting ready to visit her mother D.M., she wanted to take a picture frame containing a lock of her hair which her mum had had framed when she had had her first haircut. She put the picture frame underneath her jacket because she knew that her dad would not allow her to take that picture frame to her mum. Then his girlfriend I.P. saw that she had something under her jacket and asked what it was. She replied that it was nothing. Then her father came and took the picture frame from under her jacket and told her that they would talk about it when she came home in the evening. ... In the evening, around 8 p.m., mum took her back to her dad, who brought her into the room and called her a thief, hit her with his hand on the left eye, and started squeezing her neck and pushing her. During this she fell, but did not hurt herself because she fell on a bag which was on the floor. Then she vomited saliva because she felt nauseous from her father’s squeezing her neck. Then [her father’s partner] I.P. came and told her father to calm down, otherwise she [the first applicant] would vomit ... He then left and sat in the living room. She was very afraid and was crying, but nevertheless went to her room and did her homework for the next day. When she woke up in the morning she greeted her father with ‘good morning’ but he did not even look at her and just turned his head away. In the morning she felt slight pain under the left eye where her father had hit her. When she arrived at school she mentioned it to her teacher and her friends P. and A., because she felt the need to confide in someone. Today she went to her mum and told her everything that happened that evening. She was also very hurt when her dad rudely [swore at] her. He often does that, and did so [also] yesterday evening. He also called her a ‘cow’ and told her she was stupid. Because of his rude language she cried a lot thereafter. Dad tells her from time to time [to go to hell] and she does not like swearing, especially when he mentions her mum while doing so. A few months ago the father told her that through his friends he would ensure that she never heard from or saw her mum. She is therefore very afraid of her dad because he can be dangerous. She had seen her dad beating her mum and was therefore afraid that he might beat her the same way too. She states that her father is often rude to her, yelling at her, forcing her to eat food she does not like, and when she does not, grabs her chin and shoves the food into her mouth, which makes her feel sick. He often takes away her mobile phone so she cannot call her mum, and she would like to be in contact with her mum. Once he hit her on the leg with a hairbrush when she would not allow him to brush her hair. He also grabs her arm and squeezes it so hard that she has bruises afterwards. She states that she is very afraid of her dad and would like to live with her mum. Tonight she definitely does not want to go with her father but wants to stay with her mum. She is afraid that her father will beat her and yell at her. He often threatens her by waving his hand at her and saying ‘look at it, look at it’, with the intention of hitting her if she does not listen to him. The father also threatens to cut off her hair, knowing that she likes [her] long hair. He threatens her with that when she is crying for her mum, bites her fingernails or asks for a mobile phone. Dad often tells her that she must not love her [maternal] grandmother, [her mother’s partner] N. or his mum, whereas she loves them all. She further states that each time her mum or [her mother’s new partner] N. buys her something and she brings it to her father’s home he throws all those things into the rubbish. Therefore, she wears the things her mum bought her only when she goes to her mum’s place, as she is not allowed to wear them when she is at her dad’s home. Lastly, she states that she is very afraid of her dad and [particularly] ... that he might do something bad to her mum, because he constantly threatens to do so. The interview was conducted in the presence of a social worker from the Zadar Social Welfare Centre V.C.” 16. The same day the police interviewed I.M. and his partner I.P. The relevant part of the police record of the interview conducted with I.M. reads as follows: “The interview was conducted in the presence of his advocate B.Z., regarding the complaint that he had hit his minor daughter ... In that connection he stated the following: ... [He says that his former wife] does not regularly pay maintenance for [their] daughter ... amounting to 800 Croatian kunas (HRK) per month and up to the present day owes [him] HRK 15,000. [He submits that], sadly, [his former wife] manipulates their daughter ... and uses her so that she rejects everything that bears [his] surname. She even created a Facebook page for her under ... the surname of her current partner ... As regards his relationship with his daughter ..., [he] states that he, as a parent who wants to teach his child to respect work and discipline, has his duties, and that the child has to have certain discipline, [for example] she must not lie to her parents, and may not do whatever she pleases. When [his daughter] comes back from school ... he requires her to do her homework and study. As regards food, [he] states that he wishes [his daughter] to eat healthy and varied food, with fruit and vegetables, rice and meat, and that she does not only eat pizzas, sandwiches and sweets. He also does not like to throw away food and prefers that it is eaten. On 1 February 2011 around 3.50 p.m. [his daughter] was preparing to go to her mother and came into the kitchen to say goodbye. On that occasion [his partner] I.P. noticed that she had something under her jacket ... and asked what it was. [The daughter] replied that it was nothing, even though there was visibly something underneath it. He asked her to open her jacket. [Then they realised] that she had taken a glass picture frame containing the locks of her hair cut off when she was still a baby. [He] then asked her why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The daughter] said that it was for her mum and that if she had asked him if she could take it he would not have allowed it. Then he told her to go to her mum and that they would talk about it later, when she came home. [The daughter] came home at 8 p.m. and they continued their conversation because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and taking them to her mother. [His daughter] replied that she wanted [the picture frame] to be at her mother’s place. [He] then reprimanded her for lying to him, saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. He admits that he is sometimes a strict parent but that he always behaves in a measured way and with [good] reason, and it is only ever exclusively done with a view to making her behave [better]. Today, on 2 February 2011 [his daughter] was at school in the morning and in the afternoon was having fun with [him] and his [partner] ... Nothing suggested that [she] was in any way distressed by the previous evening’s events. [He] emphasises that all this was fabricated by her mother ... who has a negative influence on [their daughter].” 17. The relevant part of the police record of the interview conducted with I.M.’s partner I.P. reads as follows: “The interview was conducted regarding a complaint that I.M. had hit his minor daughter ... In that connection she stated the following: On 1 February 2011 around 3.50 p.m. [her stepdaughter] was preparing to go to her mother and came into the kitchen to say goodbye to them. On that occasion [I.P.] noticed that she had something under her jacket ... and asked her what it was. [Her stepdaughter] replied that it was nothing, even though there was visibly something underneath her jacket. I.M. asked her to open her jacket. [Then they realised] that she had taken a glass picture frame containing locks of her hair cut off when she was a baby. [He] then asked [his daughter] why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The stepdaughter] said that it was for her mum, and that if she had asked him for it he would not have allowed it. Then he told her to go to her mum and that they would talk about it later, when she came home. [The stepdaughter] came home at 8 p.m. and she and her father continued their conversation, because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and taking them to her mother. [The stepdaughter] replied that she wanted [the picture frame] to be at her mother’s place. I.M. then reprimanded her for lying to him, by saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. I.P. firmly states that on that occasion I.M. did not hit [his daughter], nor has she ever seen him hitting [her]. She says that I.M. has a temper and sometimes shouts when he considers that something is wrong, but that he is really not prone to physical violence or hitting the children. I.P. notes that [her stepdaughter] is generally very sensitive about her mother and immediately starts crying as regards anything related to her.” 18. After the interviews, the first applicant was returned to her father I.M., following the intervention of an employee of the local social welfare centre. 19. On 19 February 2011 the first applicant was, at the initiative of the second applicant, examined by a psychiatrist at the Psychiatric Hospital for Children and Young People in Zagreb. The relevant part of the psychiatrist’s observations reads as follows: “The child was with the mother at the police station and reported the incident [of 1 February 2011] because the mother, and also the child, claim that this was not the first time that the father has mistreated [the child], although not so much physically as psychologically ... During the interview with the girl it is evident that the child gets very upset at the mention of the father, she is afraid of him, ‘constantly thinks that he will hit her again and would like to stay with mum’. Dad is allegedly constantly threatening that he will ‘cut off her hair if she keeps crying and mentioning mum ...’ he often swears and utters vulgar expressions against the mother;all this was allegedly reported to the police ... (the interview was conducted first with the mother alone and then with the girl, also alone; [the child] talks about it all through tears and while biting her fingernails) .... The girl says that she remembers that ‘she was asked when she was little with whom she wished to live and that she said with dad because she was told that she had to say that, now she regrets it’ (she is crying all the time). The girl otherwise appears to have good intellectual capacity; she functions well outside the family, and is an A-grade pupil. There are no signs of psychotic disorder, and the girl is emphatic in contact except when she gets upset and talks rapidly when the topic of the father and his relationship with her is raised (thus there is an impression of strong fear of the father). Given the complexity of the family situation (the father has remarried and [the child] lives with him, his new wife, her daughter from her first marriage and two small half-sisters, while the mother also has a new partner with whom she has a small son) and the evident traumatisation of the child which has probably already lasted a long time, a psychiatric assessment of the child is recommended. Until then ... I recommend taking the girl to a psychologist ... Dg. Abused child, T 74.8” 20. On 5 March 2011 the second applicant took the first applicant to a psychologist in Zagreb, who, inter alia, made the following observations: “The interviews, which were conducted with the mother alone and separately with the girl, indicate that the child is afraid of her father because he psychologically and sometimes physically abuses her ... The girl ... says that she would gladly live with mum if she could, and that dad speaks badly of mum ... The results show that [the child] is emotionally attached to her mum and thinks that her dad does not love her, is afraid of him, does not trust him, and thinks that it is not fair that dad constantly yells at her even when she is not at fault. Her biggest wish is to live with her mum and her family, and she finds it difficult to return to her dad’s home. She identifies with her mother and thinks that they are very much alike. Findings: [The girl] is a traumatised child with well above-average mental abilities, strong self-control, neuroticism, depressive affect, hypersensitive, anxious with strong inferiority complex. Discrete tremor is diagnosed. I recommend psychological and, if need be, psychiatric counselling.” 21. On 30 March 2011 the Zadar Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zadru, hereafter “the State Attorney”) informed the second applicant that on the same day it had, concerning the incident of 1 February 2011, indicted I.M. before the Zadar Municipal Court for the criminal offence of bodily injury defined in Article 98 of the Criminal Code (for a more detailed description of the course of those proceedings see paragraphs 35-51 below). 22. On the same day, 30 March 2011, the second applicant instituted civil proceedings before the Zadar Municipal Court seeking reversal of the custody arrangements set forth in that court’s judgment of 24 August 2007 (see paragraph 10 above; for a more detailed description of the course of those proceedings see paragraphs 60-81 below). 23. On 22 April 2011 the second applicant took the first applicant back to the same psychologist (see paragraph 20 above). The psychiatrist made the following observations: “... The interview with [the child] was conducted without her mother’s presence. In contact silent, with depressive affect, cooperative, bites her fingernails, occasionally cries. We again had a conversation about the events of 1 February 2011 during which the child was psychologically and physically abused by her father, and which she in her mother’s presence reported to the police. [The child] says that that was not an isolated incident and that she is afraid of her father because she has continuously, from the moment she started living with him, been exposed to psychological and, from time to time, also physical abuse. She says that on multiple occasions he has threatened that he would hit her if she kept biting her fingernails and that he would take her mobile phone away. Previously she was more afraid of her father’s physical violence than now, but her mother encourages her by telling her not to be afraid and to ‘endure difficult moments’. The child states that she does not like living with her father because he threatens her and tells her that he will beat her. She says that mum loves her more, does not threaten her and is good to her. She uses suppression and ‘forgetting’ as defence mechanisms ... The child states that the father yells at her almost every day, swears, tells her that she is a ‘stupid cow, pig, goat, thief, that she constantly defies him’. She says that this offensive behaviour by her father is rarer since she reported him to the police. [The child] says that the father has threatened her that he will, through ‘his people’, take care that she does not hear from or see her mother. He threatens her that he will cut off her hair if she cries for her mother. The child alleges that her father forces her to eat so that she has to eat everything he puts on her plate and that she sometimes vomits because of that. If she refuses to eat everything the father holds her chin and ‘shoves’ the food in her mouth. If she resists, he smears the food over her face. After she reported him to the police, the father controlled himself for a couple of days, and then again started yelling but then to a lesser degree. He no longer shoves food in her mouth, but she has to eat everything he puts on her plate. Sometimes she has to eat something that she does not like, which the mother never does to her. [The child] is lonely at her father’s home, because she spends time only with her half-sisters; her friends are not allowed to visit in case [the younger half-sister] gets sick. After school the father allows her to meet with friends for half an hour only. She visited one of her friends only once and she did not dare to ask the father for more visits. She thinks that her father is stricter with her than with her older half-sister. I found out that the father speaks badly of the mother and her new partner in front of the child, that she has different clothes at her mother’s and her father’s places, and that the father threw the sneakers she got as a birthday present from her mother and her partner into the rubbish. Asked about her father’s wife, she says that she is better to her than her father: does not force her to eat, has never hit her, helps her with homework, and brushes her hair. The child shows a strong desire to live with her mother because she is emotionally closer to her, and because the mother supports her in difficult moments. She has many friends in her mother’s neighbourhood and is encouraged to spend time with them; she has fun and feels safe with her mother. Asked about [the behaviour of] her mother’s partner towards her, the child says he is good to her and tries to cheer her up, buys her presents, and is fun and pleasant to talk to. To the question whether, if she were to live with her mother, she would be allowed to see her father outside the visiting schedule ordered by the court, she says that it is certain that her mum would allow her to see her father whenever she wished to and states that ‘she would like to move to her mum’s [place] right away and forever’. Findings and recommendations: In order to prevent the development of irreversible psychopathological consequences due to continuous abuse, it is recommended that the child be immediately removed from the family where she currently lives and that custody be awarded to the mother. Psychological and if need be, psychiatric follow-up is also recommended.” 24. On 4 May 2011 the second applicant again took the first applicant to the police to report another instance of abuse by her father, who had allegedly pressured her to change her earlier statements made before the police and the experts. The relevant part of the police record of the interview conducted with the first applicant on that occasion reads as follows: “This interview was conducted regarding inappropriate behaviour of the [child’s] father I.M. [The child] stated that a couple of days ago her dad’s girlfriend I. asked her whether she had visited a certain lady in Zagreb with her mum. She had replied that she had, whereupon I. had asked her what she had talked about with that lady in Zagreb and why she had not said anything about [it] to her dad. She replied that she had forgotten to mention it. After that her father had called her on her mobile phone and asked her to come to his café ... immediately. When she had arrived there he had started yelling at her and asking why she had been saying bad things about him and why she had not told him that she had been in Zagreb ... After that he had told her that she was lying like a dog and told her to get out of his sight. ... Afterwards her dad had kept asking her whether she really wanted to live with her mum and she always replied that she did. A couple of days ago he had told her that she would not live with her mum until she was eighteen years old. [The child] also states that he said that he would report her mum for taking her to a doctor in Zagreb, and that she [the mother] would receive a criminal complaint for [having done] that. He [also] told her that he would now take her to a psychologist and to some other people where she would have to say that he had not hit her and that he was good to her. Today he had again asked her whether she really wanted to live with her mum and she had again replied to him that she did want to live with her mum. This interview was conducted in the presence of the [child’s] mother ...” 25. On 7 May 2011 the first applicant’s father took her to a psychiatrist at the Polyclinic for the Protection of Children in Zagreb, who, after studying the opinions of 19 February, 5 March and 22 April 2011 (see paragraphs 19, 20 and 23 and above) and interviewing the first applicant, in his observations noted, inter alia, the following: “It is evident that [the child] is very burdened by her parents’ conflict and the inadequacy of their mutual communication, which frequently goes through her. The girl shows affection towards, rather than fear of, her father. However, when asked what happened [on 1 February 2011] she did not want to talk about it; she was visibly emotionally burdened so I did not insist on it. She freely expresses her dissatisfaction by saying that she does not like it when her father raises his voice. Asked when that happens, she replies: ‘when I do something bad’. She is functioning well at school, says that she has many friends ... that at her mother’s place she also has friends and likes to go there, but that she feels comfortable at home with her father because she gets on well with ... the daughter of her father’s new partner ... Her mental state is dominated by the emotional burden of her parents’ conflict, high emotional tensions, the need to be close to her mother (whom she wishes to please by being with her) and, in her relationship with her father, by the conflict of loyalties she has been placed in. I am of the opinion that the girl has been drawn into a conflict of loyalties and is very burdened by her parents’ disagreements and conflict, which has resulted in high emotional pressure, anxiety and hypersensitivity. I recommend that the parents undergo family counselling and possibly afterwards also family therapy together with [their daughter].” 26. On 6 June 2011 the father took the first applicant back to the same psychiatrist who, in so far as relevant, noted: “The interview with the girl was conducted alone. [The child] states that she feels good, that she cannot wait for school to end but that she has no difficulties in school. She gets on well with both her father’s wife and her mother’s partner, and regards her half-brother and half-sisters as real siblings. She is still sad about her parents’ differences and their inability to adequately communicate [with each other] and their different parenting styles.” 27. In the course of the above-mentioned custody proceedings (see paragraph 22 above) the court ordered a combined expert opinion from experts in psychiatry and psychology. Accordingly, the applicants and the first applicant’s father were examined by forensic experts of this type at the Neuropsychiatric Hospital in Popovača. As part of the preparation of their opinion each expert conducted interviews, inter alia, with the first applicant. In particular, on 1 July and 28 September 2011 the first applicant was interviewed by each expert; on 2 September 2011 she was interviewed only by the expert in psychiatry. The interviews of 1 July 2011 were conducted without the first applicant’s parents being present, that of 2 September 2011 in the presence of her mother (the second applicant), and those of 28 September 2011 in the presence of her father. 28. The relevant part of the record of the interview of 1 July 2011 with the expert in psychiatry reads as follows: “[The child] states that she always tells the truth, literally always, and that she feels her worst when she is told that she is a liar like her mum. ... She very clearly articulates her emotional bond and closeness with her mother and her wish to live with her. ... [The child] states that she once attempted to talk with her father about living with her mother, but that the conversation ended quickly with him telling her that there would be no discussion about that and that she would stay with him until she was eighteen ... She says that her father is very strict and that he often shouts at and insults her, which makes her embarrassed and scared. The last time he attacked her, because of the picture [frame], I. [her father’s partner] stopped him, and she felt nauseous ... She says that she complained to her mother about her father, which was why she went to the police with her. She was particularly struck when the social worker came to the police [station] and talked to her mother; she heard the social worker say that unless they agreed on where [their daughter] was going to live she would be placed in a children’s home. (The girl cries for a long time afterwards). When asked how it is to live with her father, she states that she would prefer to live with her mother as she is closer to her ...” 29. The relevant part of the record of the interview of 1 July 2011 with the expert in psychology reads as follows: “Dad is so- so. When he is in a good mood, he is good. When he is not [in a good mood] he is not [good]. Once when he forced me to eat I vomited.’ ... ‘Mum is great. Good, fair and does not hit me. She does not threaten me. I do not fight with her that much. I am calmer when I am with my mum, there are not that many fights, I am more relaxed.’ ... She said that she came to the expert assessment ‘because of what dad did to me and because I want to live with my mum. I wanted ... He threatened me ...’ She cried and indistinctly through tears says that her dad smeared food over her face as a joke so she felt ugly and embarrassed. ‘He hit me once ... He said that he did not but that he only made a [threatening] gesture with his finger ...’ After she calmed down we cameng back to the traumatic incident. You started crying? ‘... He did this to me (she demonstrates with her hand round her neck). Dad hit me and I always cry so I almost vomited. [He squeezed me] this hard (she is touching her throat and chin) so that I almost vomited ...’ ‘[He called me a thief] and I said I was not and then he hit me near the eye (she shows the left temple) ... He asked me if I would do that again (she needs to be interrupted because she is speaking indistinctly while sobbing) ... [The next day] ... I told my mum what he had done to me. She told me that we could go to the police and there I told [them what happened] ... The first lady [the policewoman] there was good. The other [the social worker] pulled my hand while saying that I have to go to my dad. I did not want [to go]. She then told me that if mum gets into a fight with dad she will go to jail and I will go into a children’s home (she is sobbing). I had to go with my father. Dad said that we would not talk about that ...’ ‘Yesterday he told me that he had never hit me and that he had not done anything to me and that I should tell the truth. But he did hit me. He also told me that when he smeared the food over my face it was a joke, but I felt embarrassed. He also told me that if I mentioned it he would call [the stepmother and stepsister] to say that it was a joke, which would make me look like a liar. I felt embarrassed and ugly then ... ‘He threatened to cut off my hair if did not stop biting my nails, and to take my mobile phone away.’ ‘Once we were in the car together ... he saw mum with [her new partner] in the next lane. He said that he would put both of them to jail and kill them. He swore at them a lot. He told them many bad things ... The next day or shortly afterwards he said that through his people he would ensure that my mum and me did not see or hear from each other.’ ‘I was at a doctor’s in Zagreb some time ago. He asked me something about school but he seemed bad to me and I did not want to talk to him and I did not tell the truth. After a month we went to him again. I said I wanted to live with my mum but I did not mention that my dad had hit me. Then I was afraid of my dad, and still am because I knew he would say that he had not hit me ...’ ‘Once he hit me when I was little, I do not remember, once ...’ ‘He gets upset when I cannot eat something. When I say something [to justify myself] he asks why I defy him. He used to insult me. He called me a cow, stupid goat. He swore at me. He told me to go to hell ... he said that to me many times. He also told me to fuck off many times ... He told me that my mum was a whore (she is crying) ... ‘Mum tells me that I cannot do certain things. She does not threaten me. Sometimes she raises her voice, but she does it rarely and then I do not do it any more.” 30. The relevant part of the record of the interview conducted on 2 September 2011 with the expert in psychiatry reads as follows: “This interview was conducted with the girl and the mother together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and serious than during the previous interview ... At some point the girl has a strong emotional reaction. The girl states (while crying) that she would like to celebrate her forthcoming birthday at her mum’s place ... given that she celebrated her last birthday with her father. The mother did not manage to calm the girl completely or ease her frustration. Instead, she herself looked anxious and frustrated, almost lost.” 31. The relevant part of the record of the interview of 28 September 2011 with the expert in psychiatry reads as follows: “This interview was conducted with the girl and the father together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and deep in her thoughts, and seems restrained ... Asked if she would like to change something, she says that she would like to live with her mum and that she wishes to be able to extend the time she spends with one parent when she wants to stay with that parent longer. While saying that the girl reacts emotionally (she is crying). In the course of it there is no mutual contact between the girl and her father; there is no eye contact, nor is the father trying to calm her. Each [keeps] to themselves, with their eyes fixed forward.” 32. The relevant part of the record of the interview of 28 September 2011 with the expert in psychology reads as follows: “She states in her father’s presence: ‘I would like to live with my mum and decide when visits should take place, to go with my mum or my dad (she is crying). Dad adds: ‘That would be the best ...’ To the direct question whether she asked her dad about it, she replies that she did not. She adds that once she asked her dad [about it] and that he said that she could not go to her mum ...” 33. On 27 October 2014 the first applicant wrote the following in her school essay: “...they all think that they know me but they don’t know even a third of me. They judge me by my success in school, but that isn’t me. They don’t know what is happening, they see me as a happy girl, but I am the opposite of that. I have lived with my dad since I was six years old, and from day one I wanted to go to [live with] my mum ... Dad tells me he won’t let me go until I am 18 ... For some time already I have found comfort in cutting myself ... the scars are no longer visible, only when I play volleyball or some other ball game and when my arm turns red, then they are visible.” 34. Alarmed by the first applicant’s admission of self-harm in the school essay, on 22 November 2014 the second applicant took her to the same psychologist who had examined her on 5 March and 22 April 2011. In her observations the psychologist noted the following: “[The girl] came accompanied by her mother because the mother had learned of [her daughter’s] self-harm, which [the girl] had written about in a school essay ... of 27 October 2014. Interview: Depressive, anxious at the beginning ... verbally fluent. We are talking in the absence of the mother. After the her parents’ divorce, [the girl] lived with her mother. She says that was the happiest period in her life. She had lived with her father since she was six [years old] ... Relations in the family she described as conflictual, she is afraid of her father. She describes emotional blackmail by her [paternal] grandmother and threats and emotional blackmail by her father, as well as occasional abuse by the father, on which there are medical and police reports. She states that when she was six, she [because of being] manipulated and intimidated by her father, stated during the [forensic] expert examination [in the course of divorce proceedings] that she wanted to live ‘fifty-fifty’ [when asked which parent she would like to live with]. She says that her dad told her to say that but that she did not know what it meant. Since the divorce became final she has lived with her father, and has suffered because she has a close and trusting relationship with her mother and her mother’s partner. From that time on she has been expressing the wish to live with her mother, but despite all her statements [to that effect] ... the [relevant] authorities pay no heed ... Thanks to her mother’s support and understanding she is still functional [that is she manages to live normally] but is unhappy because she cannot live with her mother. She says that she is unhappy, that she does not understand why the [relevant] authorities are ignoring her, and that they do not understand how much they are abusing her by not taking appropriate measures. In her school essay (which was presented) she mentions that she cut herself on the arms. Her friend helped her to deal with the scars. When asked why she did that, she replies that it was because she felt helpless in enduring the constant pressure in her father’s family, constant conflicts, inability to manage her own time, and refusal to let her live with her mother, which would make her happy. Other behaviour mentioned in the essay points to the development of an obsessive-compulsive disorder, fear of the dark, anxious-depressive symptomatology, and emotional control disorder. These are not related to puberty but indicate post-traumatic stress symptomatology, emotional disorders caused by constant frustrations, and child abuse ... The girl has for years been burdened by expert examinations, judicial proceedings, interviews at the social welfare centre, and the hope that someone will finally listen to her plea to live with her mother, because since the age of six she has been unhappy because she has to live with her father. She enjoys her mother’s and her mother’s partner’s company, and they are supportive, but she is afraid that she will not be able to live with them for a long time yet. She is unhappy because her father constantly fights with her and does not want her to be happy (as she would be if she lived with her mother). She ‘hates the situation she is in, where she is forced to live with her dad. She wants to become an advocate and she would never allow her child to suffer as she does because she is not allowed to choose with whom ... to live.’ She is introverted, anxious ... Emotional suffering, distrust, depression, fear, guilt, reduced impulse control and problems with facing stress are diagnosed. These symptoms are related to inability to control her desires and to plan and organise. Despite previously established above-average cognitive capacities, a reduced level of openness and a need for new experiences is detected. This is probably because of continuing obstruction of her freedom of action. Despite constant obstructions she is still willing to fight for herself. She is empathic. She has very developed defence mechanisms. However, symptoms of post-traumatic stress are also detected. Conclusion: Elements of strong psychological trauma are diagnosed (post-traumatic stress), which are, according to her statements, the result of frustration caused by the abuse by her father and the authorities who are ignoring her wish to live with her mother, and [which serve] to protect her from suffering and the feeling of helplessness, which she reduces by obsessive-compulsive disorder and by harming herself.” 35. As already mentioned above (see paragraph 21), on 30 March 2011 the State Attorney indicted the first applicant’s father before the Zadar Municipal Court for having committed the criminal offence of bodily injury defined in Article 98 of the Criminal Code (see paragraph 86 below) during the incident of 1 February 2011. 36. On 19 April 2011 the court issued a penal order (kazneni nalog), finding him guilty as charged and imposing a fine of HRK 1,820. 37. On 4 May 2011 the first applicant’s father challenged the penal order, arguing that the basis on which it had been issued was false. The court accordingly set aside the penal order, and the proceedings resumed under the rules of summary criminal procedure. 38. The hearing scheduled for 7 May 2013 was adjourned because neither the accused nor the summoned witnesses attended it. 39. At the hearing held on 6 June 2013 the first applicant’s father pleaded not guilty and made a statement. He also proposed that several witnesses be heard. The applicants proposed that they themselves be heard. 40. At the hearing held on 23 July 2013 the court heard the second applicant, one of the police officers who had interviewed the applicants following the incident of 1 February 2011, the first applicant’s schoolteacher, and Z.M., a psychologist who had acted as supervising officer during the implementation of the first child protection measure in respect of the supervision of the exercise of parental authority (see paragraph 11 above). 41. The police officer stated that she had not noticed any visible injuries on the first applicant during the interview with her the day after the incident of 1 February 2011. The first applicant’s schoolteacher had not seen any injuries either. He also testified that he had noticed that the first applicant had seemed sad the day after the incident and that he had talked to her about this; the first applicant had told him on that occasion that her father had not hit her. Z.M., who said that he had spoken with the first applicant some time after the incident in the capacity of a private individual and at her father’s request, testified that the first applicant had told him that her father had yelled at her and that she had been afraid that he would hit her but that he had not. He also stated that as a school psychologist he knew very well how to recognise signs of abuse in children and that the first applicant had not shown such signs. 42. On 25 July 2013 the court decided to obtain an expert opinion from a medical expert on the first applicant’s injuries. 43. The hearing scheduled for 18 September 2013 was adjourned because the summoned witnesses failed to attend it. 44. On 23 September 2013 the expert submitted his opinion, which stated that it was possible, but could not be determined with certainty, that the first applicant’s injury had been sustained during the incident of l February 2011. The relevant part of his opinion states as follows: “The following injury was established [at the time] by medical examination: small haematoma of the left lower eyelid. This injury constitutes a bodily injury. The injury was inflicted by some hard and blunt object. It was inflicted by a single blow of low intensity. The mechanism of the injury could correspond to the course of events as they were described to the doctor by the injured party during the examination (a blow with the hand to the eye). However, it is to be noted that the injury was described by the doctor who performed the examination as a haematoma in resorption, thus in [the process of] disappearing, fading. That normally happens after a certain period of time, for example, several days, after an injury. It would not be common for resorption to already be visible the day after the injury. It follows from the above that the injury could have been inflicted during the incident in question, but that a causal link cannot be established with certainty.” 45. At the hearing held on 24 October 2013 the court heard the other police officer who had interviewed the first applicant on 2 February 2011, the social worker who had been present during the interview with the police, and the doctor who had examined her on that day. 46. The police officer testified that the first applicant did indeed not want to return to her father and that the social worker from the local social welfare centre had indeed told her that they would have to temporarily place her in a children’s home if she refused. She also testified that she had not seen any signs of injury on the first applicant. The social worker testified that she had not noticed any signs of injury on the first applicant either. She also stated that while it was true that the first applicant had not wanted to return to her father, she had changed her mind after they spoke, in the course of which she had not mentioned the alternative of sending the first applicant to a children’s home. The doctor who examined the first applicant stated that resorption of a haematoma occurred more quickly in children and young people. While he excluded the possibility that the injury could have been caused by crying and rubbing the eyes he did not rule out the possibility that it had been caused by, for example, the first applicant being hit by the ball during her volleyball practice. The applicants’ representative reiterated their proposal that the first applicant be heard. 47. In order to decide on that proposal, the court decided to consult the case file concerning the above-mentioned custody proceedings (see paragraph 22 above and 60-81 below). Eventually, the court decided to hear the first applicant via video link on 1 July 2014. 48. However, that hearing was adjourned because on 30 June 2014 the first applicant’s father sought withdrawal of the trial judge; that application was dismissed by the court’s president on 3 July 2014. 49. Since none of the courts in Zadar was equipped with a video link device, the court asked the police authorities to provide it. The police informed the court that it would make available a video-link device on 16 October 2014. Accordingly, the examination of the first applicant was scheduled for that date. 50. However, on 14 October 2014 the police authorities informed the court that they would not be able to provide the device on 16 October 2014. 51. According to the Government, the proceedings are still pending, depending on the availability of the video link device. 52. Meanwhile, on 27 April 2011 the second applicant lodged a criminal complaint with the State Attorney against the first applicant’s father accusing him of the criminal offence of child abuse as defined in Article 213 paragraph 2 of the Criminal Code (see paragraph 86 below). In particular, the second applicant argued that he had physically and psychologically abused the first applicant by: (a) in the period between February 2008 and April 2011, inter alia, swearing at her and calling her names, frequently forcing her to eat food she did not like, and force-feeding her when she refused, threatening to hit her, cut off her long hair and ensure that she never saw or heard from her mother, hitting her with a hairbrush on one occasion, among others, and (b) on 1 February 2011 hitting the first applicant several times in the face and squeezing her throat while verbally abusing her, as a result of which she was later diagnosed by an ophthalmologist with bruising of the eyeballs and eye-socket tissue. 53. On 20 June 2011 the State Attorney asked the of the Zadar County Court (Županijski sud u Zadru) investigating judge to: (a) question the suspect, (b) take statements from his partner and from the second applicant and her partner, and (c) order a combined expert opinion from experts in psychiatry and psychology. 54. On 29 September 2011 the State Attorney’s Office itself ordered a combined expert opinion from certain court experts in psychiatry and psychology. On 4 October 2011 it set that order aside after finding that such a combined expert opinion had already been obtained in the context of the above-mentioned custody proceedings (see paragraph 22 above and paragraphs 60-81 below). 55. On 16 January 2012 the State Attorney dismissed the second applicant’s criminal complaint, finding that there were not sufficient grounds to suspect that the first applicant’s father had committed the criminal offence the second applicant had accused him of. In so doing the State Attorney’s Office addressed only the part of her complaint concerning the alleged abuse of the first applicant in the period between February 2008 and April 2011, and not the part concerning the incident of 1 February 2011. After examining the statements made to the police by the suspect and his partner, the second applicant and her partner, psychiatrists’ opinions of 19 February and 7 May 2011, the psychologist’s opinion of 5 March 2011, and the combined expert opinion of 29 December 2011 (see paragraphs 16-17, 19-20 and 25 above and paragraphs 69-70 below), the State Attorney gave the following reasons for his decision: “Analysing the above facts, it follows that the suspect I.M.’s conduct or the conduct of [the second applicant] cannot be regarded as conscious and deliberate emotional or physical child abuse, but rather as inadequate child-rearing practice [ parenting style] and reaction caused by parental conflict over child custody, persistence of long-lasting mutual unresolved conflicts, and limited parenting capacity ... In view of the foregoing ... there is no reasonable suspicion that the suspect I.M. committed the criminal offence he is accused of ...” 56. The first and second applicants then decided to take over the prosecution from the State Attorney as injured parties in the role of (subsidiary) prosecutors. As the Criminal Procedure Act requires that an accused be questioned before being indicted, on 25 January 2012 the applicants asked an investigating judge (sudac istrage) of the Zadar County Court to question the first applicant’s father. 57. By a decision of 9 February 2012 the investigating judge dismissed the applicants’ request, holding that the facts adduced by the applicants did not constitute the criminal offence of child abuse. In so doing he relied on the combined expert opinion of the forensic experts in psychiatry and psychology of 29 December 2011 obtained in the custody proceedings (see paragraphs 69-70 below). The relevant part of that decision reads as follows: “... the conduct cannot be regarded as abuse [because the combined expert opinion] did not confirm the diagnosis of child abuse. This is very strongly indicated by the recommendation that changing the child’s residence is not advisable. Had that diagnosis been established, the recommendation concerning the child’s residence would have certainly been very different.” 58. On 21 February 2012 a three-member panel of the Zadar County Court dismissed an appeal by the applicants against the decision of the investigating judge. The relevant part of that decision reads as follows: “[The child is under supervision] by the [local] social welfare centre. It is therefore evident that if the suspect had behaved in an unseemly or inappropriate manner towards her as a parent that the centre would have reacted. There must have been reasons why the father was awarded care of the child. If there is any change in circumstances that decision could also be changed. According to the expert opinion no elements of abuse were found ...” 59. On 24 May 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible a subsequent constitutional complaint by the applicants. It held that the contested decisions of the Zadar County Court were not susceptible to constitutional review. The Constitutional Court served its decision on the applicants’ representative on 3 July 2012. 60. Meanwhile, on 30 March 2011 the second applicant brought a civil action in the Zadar Municipal Court against the first applicant’s father with a view to altering the custody and contact arrangements ordered in the judgment of the same court of 24 August 2007 (see paragraph 10 above). In particular, she sought custody of the first applicant. At the same time the second applicant asked the court to issue a provisional measure whereby it would temporarily grant her custody of the first applicant pending the final outcome of the principal proceedings. 61. The court regarded the second applicant’s civil action as an application for non-contentious proceedings, as it considered that the rules on non-contentious procedure rather than those on regular civil procedure should apply in such matters. It held hearings on 29 April and 16 May 2011. 62. The local social welfare centre participated in those proceedings as an intervener sui generis with a view to protecting the first applicant’s interests. 63. At the hearing held on 29 April 2011 the second applicant’s representative insisted on the provisional measure being issued. The representative of the local social welfare centre stated that the situation in the first applicant’s family was very complex, that her parents had made numerous criminal complaints against each other, and that both parents should be assessed by forensic experts. He also stated that the centre could not at that time make a recommendation as regards the provisional measure requested, because such a recommendation could only be made after completion of the family assessment procedure by a team of professionals employed at the centre. The second applicant’s representative replied that the centre had been aware of the incident of 1 February 2011 but had taken no action to address the situation in the first applicant’s family. She therefore insisted on pursuing the application for a provisional measure. 64. On 12 May 2011 the local social welfare centre submitted its report and recommendation to the court. In the course of their preparation of this report the centre interviewed the second applicant and the first applicant’s father on 3 and 4 May 2011, visited their homes and requested an opinion from the first applicant’s school. The relevant part of the centre’s report reads as follows: “The allegations of the [child’s parents] who accuse each other of child abuse are impossible to verify, nor can a straightforward conclusion be made only on the basis of interviews with them or on the basis of visits to their families. There is an impression that the parents, burdened by their permanently strained relationship and the need of each of them to live with the child, consciously or subconsciously place themselves and their needs first while disregarding the welfare and the needs of the child. The child protection measure of supervision of the exercise of parental authority was previously ordered in respect of the parents during the divorce proceedings, from 1 November to 31 August 2008. Given that the already bad communication between the parents has worsened again, which brings about negative tensions which could be harmful for the child’s emotional development, and having regard to the fact that they are again facing court proceedings, the centre is in the process of imposing the same measure with a view to protecting the rights and welfare of [the child] through which [the centre] shall monitor the mother’s and the father’s relationship with the child and [in the implementation of which] they will be advised how to improve communication between them and strengthen their parenting competencies.” 65. The social welfare centre recommended a combined expert assessment of the first applicant and her parents with a view to establishing their parenting abilities and the possible consequences of their behaviour for her physical and mental development. They added that the first applicant’s family situation was complex but that at that moment there was nothing to suggest that it was life-threatening. The relevant part of the social welfare centre’s recommendation reads as follows: “After having conducted the family assessment procedure ... it was established that the parents express opposing views as regards abuse and neglect of [their child]. [The mother] accuses the father of child abuse [in that] he is abusing the child physically and emotionally, obstructing her contact with the mother, and using inappropriate child rearing methods. [The father] accuses [the mother] of neglecting the child’s interests by her behaviour [in that] she does not pay child maintenance, does not come to school to consult with teachers or to parents’ meetings and that the child is being manipulated by the mother ... Having regard to the medical documentation at the disposal of the centre, the parties’ submissions, visits made to [the father’s and the mother’s] homes and interviews with them, we recommend that the parents and the child undergo a combined [psychiatric and psychological] expert assessment in order to assess their fitness for further care of [their daughter] and the possible consequences of their behaviour for her psycho-physical development. It is true that the family situation is complex. However, there is no impression that at present [the child’s] life is at risk in her father’s family.” 66. By decisions of 16 May and 6 and 16 June 2011 the court ordered a combined expert opinion from forensic experts in psychiatry and psychology who were to assess: (a) the parenting capacities of the second applicant and the first applicant’s father, (b) the first applicant’s condition, and (c) whether the first applicant had been exposed to abuse and, if so, by whom. 67. By a decision of 7 June 2011 the court refused to issue a provisional measure sought by the second applicant (see paragraph 60 above). In so deciding the court examined the ophthalmologist’s report of 2 February 2011, the psychiatrists’ opinions of 19 February and 7 May 2011, and the psychologist’s opinions of 5 March and 22 April 2011 (see paragraphs 13-14, 19-20, 23 and 25 above). It also consulted the case file of the criminal proceedings in respect of the bodily injury, and examined the report and recommendation of the local social welfare centre of 12 May 2011 (see paragraphs 64-65 above). It found, in view of the conflicting opinions of the psychiatrists, the penal order against the first applicant’s father which never became final, and the recommendation of the local social welfare centre, that at that point the allegations that the first applicant had been abused by her father were not plausible enough to justify her immediate temporary removal from his custody. In particular, the court held as follows: “... the case was not sufficiently plausibly made that such a measure was necessary to prevent violence or the risk of irreparable harm from materializing, given that at present it remains uncertain and disputed whether [the child] was subject to abuse by her father or was being manipulated by her mother ...” 68. On 2 March 2012 the Zadar County Court (Županijski sud u Zadru) dismissed an appeal by the second applicant and upheld the first-instance decision. 69. On 29 December 2011 the forensic experts submitted their opinion (see paragraph 66 above) to the Zadar Municipal Court. In their opinion the experts found that both the second applicant and the first applicant’s father had limited parenting abilities and suffered from personality disorders (both of them were emotionally unstable and the first applicant’s father was also narcissistic). As regards the first applicant, the experts found that she was emotionally traumatised by her parents’ separation and their mutual conflict and lack of communication. Instead of shielding her from that conflict her parents had placed her at the centre of it and manipulated her sometimes up to the level of emotional abuse. The experts therefore recommended that the first applicant and her parents receive appropriate therapy. They further found that the first applicant was ambivalent towards her father and idealised her mother, whom she viewed as a “friend”, and expressed the wish to live with her. The experts were of the opinion that this desire to be close to her mother could be achieved through (more) extensive contact between the first and the second applicant. If after one year of recommended therapy the first applicant still wished to live with her mother, they recommended that another combined expert opinion be obtained. 70. The experts did not reply to the court’s question whether the first applicant had been exposed to abuse and, if so, by whom (see paragraph 66 above). Their conclusions were: (a) that the first applicant should nevertheless remain living with her father for the time being while maintaining extensive contact with her mother, (b) that she and both her parents should undergo treatment and counselling, (c) that the supervision of the exercise of parental authority (the child protection measure imposed by the local social welfare centre, see paragraph 82 below), should be continued, and (d) the first applicant and her parents should be reassessed after a year. In particular, the experts concluded: “We do not find [any] contraindications to [the child’s living with her father. [Our] recommendation is that, for the time being it is not necessary or desirable to change the child’s place of residence, that is to say [the child] should continue living with her father.” 71. Following a request by the second applicant, by a decision of 27 July 2012 the Zadar Municipal Court appointed G.Š., an advocate practising in Zadar, to act as a special representative for the first applicant and represent her interests in the proceedings, as required by Article 9, paragraph 1, of the European Convention on the Exercise of Children’s Rights (see paragraph 94 below). 72. Following an appeal by the first applicant’s father, on 26 October 2012 the Zadar County Court quashed that decision and remitted the case. It held that the first-instance court had failed to establish whether the interests of the first applicant were indeed in conflict with the interests of (one of) her parents, which was a necessary precondition for the appointment of a special representative. 73. By a decision of 13 November 2012 the local social welfare centre appointed the same person to act as the first applicant’s guardian ad litem pursuant to section 167 of the Family Act (see paragraph 84 below). 74. The Zadar Municipal Court held further hearings in the case on 6 September and 11 December 2012 and 8 March 2013. 75. At the last mentioned hearing the court heard the experts who had prepared the combined expert opinion of 29 December 2011. Those experts stated, inter alia: (a) that their expert opinion had in the meantime become obsolete, because a year and two months had passed since they had prepared it (b) they had not replied to the court’s question whether the first applicant had been exposed to abuse, because it was the task of the judicial authorities and not theirs to make that assessment and (c) it would be irrelevant which parent the first applicant should live with if her parents both behaved better. 76. By a decision of 30 April 2013 the Zadar Municipal Court dismissed the second applicant’s application for the custody and contact arrangements stipulated in the judgment of 24 August 2007 to be reversed. The second applicant and the first applicant’s guardian ad litem appealed. 77. On 15 November 2013 the Zadar County Court quashed the first-instance decision for incomplete facts and remitted the case to the lower court. It instructed the first-instance court to: (a) inquire whether the first applicant’s father’s conviction for the criminal offence of bodily injury against her had become final, (b) assess whether the first applicant was able to understand the importance of the proceedings and, if so, allow her to express her opinion and take her testimony, (c) assess the need to appoint a special representative to the first applicant, and (d) obtain an opinion and recommendation from the local social welfare centre. 78. In the resumed proceedings, on 18 November 2013 the Zadar Municipal Court discontinued the non-contentious proceedings and decided that the proceedings would be continued under the rules of (regular) civil procedure. The court explained that the second applicant’s application for reversal of the custody and contact arrangements set forth in its judgment of 24 August 2007 (see paragraph 10 above) would, if agreed, necessarily entail a new decision on payment of maintenance by the non-custodial parent, which was an issue that could not be decided in non-contentious but only in regular civil proceedings. That did not mean that procedural acts undertaken thus far had lost their validity or become irrelevant. 79. On 27 February 2014 the second applicant lodged a request for protection of the right to a hearing within a reasonable time, complaining about the length of the proceedings. 80. On 9 July 2014 the president of the Zadar Municipal Court dismissed the first applicant’s request. 81. It would appear that the proceedings are currently again pending before the Zadar Municipal Court as the court of first instance. 82. Following the incident of 1 February 2011, on 22 September 2011 the local social welfare centre again (see paragraph 11 above) issued a decision ordering the child protection measure of supervision of the exercise of parental authority in respect of the first applicant. The measure was imposed for a period of one year and was, by the centre’s decision of 1 October 2012, further extended for another six months, until 31 March 2014, when it was discontinued. 83. In her final report of 30 March 2014 the supervising officer (a psychologist) summarised the results of the measure in the following terms: “The aim of the measure was to encourage appropriate parental behaviour with a view to preventing and minimising the negative effects of [their] conflictual relationship on the child’s psycho-physical development ... in that sense it was only a question of creating preconditions for adequate communication between the parents, so that currently there is no open conflict (but only because the parents avoid it). In particular, the parents are observing the visiting schedule. They have made concessions to each other from time to time. However, the parents are still in conflict, they still do not communicate, and the majority of their communication goes through the child or through text messages. It is precisely in this way that they are disregarding [her] needs and forcing [her] to deal with something with which she should not be dealing at her age (or at any other age for that matter). Both parents think they are doing what is best for their child, while forgetting that their conflict is the major obstacle to the normal psycho-physical development and functioning of their child ... [The mother] thinks that the child should be with her and that the wish of the child, who also expresses the wish to be with her, should be respected. [The father] thinks that that his role is to protect the child from the mother’s negative influence and ensure stability for her. Those views are O.K., but the only question is how much each of them negatively affects the child by fighting for their own position? For a compromise people need to be ready to partially abandon their position, but they are not ready to do so. In my view, both parents have a good relationship with the child; they [both] try to spend quality time with her. They differ to some extent in their methods and parenting styles ([the mother’s] is permissive and directed at [developing] a friendly relationship with her daughter, which may also be a strategy for ‘winning’ the child, whereas [the father] is more impulsive, with a tendency to give in, and is oriented towards the traditional role of the father, which would not be a problem if the two parents would cooperate ... Neither of them disputes that the role of the other parent is also important for the child, but they both find it important that the child lives with them, believing that in that way they would diminish the harmful influence ‘the other parent has on the child’. This means that the main problem is unresolved parental conflict, and the parents should probably work on that outside the [social welfare] centre. When they are able to talk to each other, and when they realise why and which of their actions are harmful for [the child] (and stem from their personal conflict) then they will be able to function better. In that regard I think that the supervision measure cannot provide a better solution to the problems they have.”
| 1 |
test
|
001-145354
|
ENG
|
RUS
|
CHAMBER
| 2,014 |
CASE OF M.S. v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
|
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The applicant was born in 1980 and is serving a prison sentence in the Mordoviya Republic. 6. According to the official version of the events, on 31 May 2007 K., a close friend of the applicant, was arrested by the police when he attempted to sell to P. the amphetamines he had earlier bought from the applicant. K. voluntarily agreed to participate in a fake drug deal organised by the police to help them arrest the applicant in order to stop his drug dealing. He made a written statement to that effect. K. called the applicant in the presence of two attesting witnesses and police officers and asked him to sell him ten ecstasy pills. The applicant met K. at 11 p.m. He gave him the drugs and K. paid him in cash. The police officers then arrested him. K. gave the police the drugs he had received from the applicant. The police took the marked banknotes K. had paid for the drugs from the applicant’s bag. Then they cut the applicant’s nails for forensic analysis. The attesting witnesses were present at the scene and could observe the whole operation. 7. According to the applicant, K. called him and asked for help because he had been arrested. He also asked for money. The applicant agreed to help him. When he met K., the latter put several banknotes in his bag, which was open. Then several plain-clothed police officers arrested him. They handcuffed him, took the banknotes which K. had planted in his bag, cut a section out of his bag and cut his nails, together with some adjacent skin. When the applicant refused to sign the arrest record, one of the police officers punched him. The applicant then signed the document. 8. The applicant was taken to a police station. The head of the police station, S., beat the applicant up in order to make him confess to the crime. The police officers also took some of the applicant’s personal effects and the cash he had on him. The applicant spent the night at the police station. 9. On 1 June 2007 the applicant met with a lawyer, Kh. The latter told him to confess to the crime and to give some cash to the police. They would then let him go and make sure that he received a conditional sentence. The applicant did as he had been told by Kh. 10. The applicant remained in custody during the criminal proceedings against him. 11. On 17 January 2008 the Lefortovskiy District Court of Moscow found the applicant guilty of drug dealing and sentenced him to ten years’ imprisonment. The court based its findings on (1) the testimonies of K., police officers, one of the attesting witnesses and the investigator; (2) materials pertaining to the fake drug deal; and (3) forensic evidence. The court also noted that the applicant’s allegations of ill-treatment had not been subjected to examination in the course of the trial. 12. At the trial the applicant was represented by three lawyers. He pleaded not guilty. He recounted his version of the events, alleging that K. and the police had set him up. 13. On 23 April 2008 the Moscow City Court upheld the applicant’s conviction on appeal. 14. The Government’s submissions as regards the conditions in which the applicant was transported may be summarised as follows: 15. The applicant was always transported alone in a single compartment. He was allowed to use a toilet at the courthouse, if necessary. Once at the courthouse, he had access to drinking water. 16. The Department of the Interior used five types of van for transporting defendants to and from the courthouse. The GAZ-2705 van had an inmate compartment measuring 2.7 by 1.6 by 1.5 m comprising two cells with seating capacity for four persons each and one single cell. The inmate compartment in GAZ-3307 and GAZ-3309 vans measured 3.8 by 2.4 by 1.6 m and had two cells with seating capacity for twelve persons each and one single cell. The inmate compartment of the KAVZ-3976 van measured 3.0 by 2.1 by 1.7 m and had one cell with seating capacity for five persons and six single cells. The inmate compartment in ZIL-4331 vans measured 4.5 by 2.4 by 1.65 m and had two cells with seating capacity for seventeen persons each and two single cells. 17. The vans were ventilated through an opening in the door and by vents in the compartments. They were equipped with heating and lighting. They were cleaned daily and disinfected on a weekly basis. The vans were in good working order at all times. 18. According to the technical specifications for prison vans submitted by the Government, a single compartment in a prison van cannot measure less than 0.5 by 0.6 m. The width of one seating place should be 0.45 m. 19. According to the applicant, he was placed in a prison van compartment measuring 0.7 by 0.7 by 1.6 m. It was lined with metal sheeting and completely isolated from the rest of the van interior. The height of the compartments in the van was insufficient for a man of average stature to enter or stand up without hunching. Inmates were to remain seated at all times while inside the van. On average, each trip lasted three and a half hours. After the court hearings, the applicant and other detainees were first taken to remand prison no. 77/1, where they were sorted depending on destination. Throughout the time the vans were parked at the remand prison, their engines were off and the lighting, heating and ventilation did not function. The compartments inside the vans were very cold in the winter, when the outside temperature was minus 25oC. The inmates were not allowed to use the toilet. All the inmates smoked and the applicant, a nonsmoker, was exposed to second-hand tobacco smoke. 20. On 21 May 2008 the applicant was transported to a correctional colony to serve his prison sentence. 21. According to the Government, the applicant was taken from the remand prison to the railway station in a prison van. The trip lasted four hours (from 3.40 to 7.40 a.m.). It took forty minutes to place the prisoners in railway carriages (from 7.40 to 8.20 a.m.). The train journey lasted fifteen hours and ten minutes (from 8.20 a.m. to 11.30 p.m.). On arrival at the destination station, the inmates were again placed in vans and taken to the respective detention facilities. The trip lasted thirty-five minutes (from 11.30 p.m. to 12.05 a.m.). 22. The train compartment in which the applicant was placed measured 2.05 by 1.51 m. The number of inmates placed in the compartment did not exceed twelve. There were five berths and eight seats in the compartment. The berth was 2.05 m long. The passage between the berths and seats in the compartment was 0.47 m wide. All the inmates had luggage which they were allowed to place under the lower berths. The railway carriage was equipped with heating and ventilation in good working order. 23. As regards the smoking issue, the Government submitted as follows: “Inmates transported by [train] ... are not allowed to smoke. They are warned accordingly by the chief guard. However, the inmates who smoked, during a long trip, became stressed if deprived of smoking. They took advantage of the fact that they were allowed to have cigarettes on them and those could not be confiscated. They tried to smoke, hiding it with skill. Their attempts to smoke, if noticed by the guard, were stopped ... ” 24. Inmates were not allowed to use the toilet within the boundaries of Moscow, that is at the station and during the first forty minutes of the journey. Thereafter, they were allowed to use the toilet every two hours. 25. According to the Government, the applicant submitted three complaints to the prosecutor’s office about the conditions of his transport. In response, the latter asked the authorities in charge of detainees’ transport to conduct an inquiry. No violations were disclosed. 26. The trip lasted eighteen hours. The applicant was placed in a train compartment measuring 2.9 square metres together with twelve other inmates. They were not allowed to use the toilet throughout the journey and had to use plastic bottles in the compartment instead. Almost all of the inmates smoked, and the applicant was exposed to second-hand tobacco smoke. 27. According to a statement signed by the acting head of remand prison SIZO-6 in Moscow and submitted by the Government, during the applicant’s detention in the remand prison from 4 June 2007 to 21 May 2008, he underwent regular medical examinations and received any necessary treatment. 28. Upon arrival at the remand prison, the applicant underwent obligatory blood tests, an X-ray examination and a physical check-up. The blood tests confirmed the presence of HIV (stage 2 – asymptomatic HIV infection). He was prescribed a special diet and placed under regular medical supervision. 29. During the period from May 2008 to date, the applicant has been serving a prison sentence in a number of correctional colonies. The parties did not indicate the exact colony numbers. 30. Following his arrival at correctional colony no. IK-18 in Mordoviya Republic, the applicant underwent a complete physical check-up. The general practitioner recommended consultation with an infectious diseases specialist and a psychiatrist, and prescribed a general blood test and a general sputum smear test. 31. On 29 May and 22 October 2008 the applicant had X-ray examinations. No abnormalities in the lungs were detected. 32. According to the applicant’s medical file, he did not receive any HIV-related treatment or examinations in 2008. 33. On 22 January 2009 the applicant was transferred to a medical correctional colony in order to undergo a comprehensive medical examination. He was examined by an infectious diseases specialist and had a CD4 cell count on 29 January 2009. His CD4 cell count was 759. The diagnosis (stage 2 – asymptomatic HIV infection) was confirmed. He had a biochemical blood test and urine samples were taken. On 30 January 2009 he was discharged from hospital in a satisfactory condition and transferred back to correctional colony no. IK-18. 34. On 26 January, 25 April and 23 October 2009 the applicant had Xray examinations. No abnormalities in the lungs were detected. 35. On 5 February, 23 July and 17 December 2009 the applicant consulted the infectious diseases specialist. On 24 December 2009, following contact with a tuberculosis-infected inmate, the applicant was examined by a tuberculosis specialist who recommended preventive antituberculosis treatment. 36. On 9 December 2009 the applicant had a viral load test. 37. On 16 February 2010 the applicant had another CD4 cell count. On 11 March 2010 he consulted the infectious diseases specialist. Because the applicant had a low CD4 cell count of 182, the doctor re-classified the applicant’s diagnosis as stage 4A and recommended antiretroviral therapy. The applicant consented. 38. On the same day the applicant was examined by the tuberculosis specialist. Subsequently, he underwent preventive medical treatment until 30 March 2010. 39. It appears that the applicant started antiretroviral therapy on 22 March 2010, but developed an allergic reaction to the medication. On 27 March 2010 he consulted the infectious diseases specialist by telephone. The latter recommended discontinuing the treatment. The applicant followed the doctor’s recommendation. 40. On 15 April 2010 the applicant resumed antiretroviral therapy, which was discontinued in view of the allergic reaction. 41. From 11 to 28 May 2010 the applicant underwent a medical examination in hospital. On 18 May (or 7 June) 2010 his CD4 cell count was 583. In view of the test results and referring to the side effects of the antiretroviral therapy, the applicant refused to undergo the therapy. 42. On 15 May 2010 the applicant had an ultrasound scan of his liver, which disclosed diffuse liver changes. 43. On 5 August 2010 the applicant’s CD4 cell count was 572. 44. On 3 October 2010 the applicant had a chest X-ray examination. No abnormalities were detected. 45. From 18 (February) to 4 March and from 18 to 28 April 2011 the applicant underwent an HIV-related examination in hospital. He had an ultrasound scan in connection with polyposis of the gallbladder and diffuse liver changes, and was examined by an infectious diseases specialist. 46. On 18 February 2011 the applicant had a chest X-ray. No abnormalities in the lungs were detected. On 15 March 2011 the applicant consulted a tuberculosis specialist. 47. The applicant was admitted to hospital and received treatment for acute gastritis from 4 to 19 July 2011. 48. On 19 July 2011 the applicant had another chest X-ray, which showed infiltrative shadows on the left lung. On 1 August 2011 the applicant was examined by the tuberculosis specialist, who prescribed a further tomographic examination and sputum smear test. 49. On 20 July 2011 the applicant agreed to undergo antiretroviral treatment. It appears that it was not carried out at the time. 50. From 19 July to 16 August 2011 the applicant underwent another HIV-related examination in hospital. 51. The sputum smear test of 2 August 2011 proved negative. The tomography of 8 August 2011 showed infiltration in the left lung. On 10 August 2011 the tuberculosis specialist ruled out the possibility of tuberculosis infection. 52. The applicant was admitted to hospital and received treatment for acute laryngitis from 17 to 29 August 2011. 53. On 8 September 2011 the applicant consulted the infectious diseases specialist. 54. On 11 September 2011 the applicant’s CD4 cell count was 452. 55. On 23 September 2011 the applicant had a chest X-ray and was diagnosed with tuberculosis (infiltration stage). On the same day he was admitted to hospital, where he underwent treatment for tuberculosis until 2 December 2011. 56. From 31 January to 10 February and from 13 to 24 February 2012 the applicant was admitted to hospital for examinations. It was established that his HIV condition was progressing and it was diagnosed as stage 4. 57. From 18 May to 5 October 2012 the applicant underwent treatment for HIV and tuberculosis in hospital. His CD4 cell count of 13 August 2012 was 303. According to the applicant, he started antiretroviral treatment in September 2012. 58. The applicant received HIV examinations and treatment in hospital from 17 May to 14 June 2013. Upon discharge, his condition was considered satisfactory. 59. According to the applicant, the antiretroviral treatment was interrupted from 12 to 22 June 2013 owing to a lack of necessary medication. The applicant’s medical file contains an entry confirming the lack of necessary medication in stock. On 22 June 2013 the applicant received the medication to resume the antiretroviral treatment. Subsequently, there were no interruptions in the prescribed treatment. 60. On an unspecified date the applicant asked for a transfer to a correctional facility with a less strict regime. 61. On 14 August 2012 the Tengushevskiy District Court of the Mordoviya Republic dismissed the applicant’s request, noting that he should complete the medical treatment prescribed prior to such a transfer, if any. The applicant did not appeal. 62. According to the applicant, the administration of correctional colony no. LPU-5 in the Mordoviya Republic where he was serving his prison sentence refused to dispatch his letters of 15 December 2011, and 24 February, 21 June and 15 July 2012 addressed to the Court, in which he complained of inadequate medical care. He further alleged that the letters of 4 April and 1 August 2012, which he had received from the Court, had been opened and read by the administration of the correctional colony; that his letter addressed to the Court of 14 June 2012 had been opened and dispatched with twenty-five days’ delay; and that his letter addressed to his lawyer, Sh., of 22 June 2012 had not been dispatched.
| 1 |
test
|
001-161366
|
ENG
|
ROU
|
CHAMBER
| 2,016 |
CASE OF RUSU v. ROMANIA
| 3 |
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
|
András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1979 and lives in Suceava. At the relevant time, he was a journalist for a local newspaper Monitorul de Suceava (hereafter “the newspaper”). 6. On 26 August 2003 the applicant published an article under the title “An inhabitant of Verneşti is wanted by police across the country, having been accused of breaking into the headquarters of the local branch of the Social Democratic Party” (“the PSD”). The article, accompanied by a photograph of S.A., a suspect at the time, read as follows: “S.A, aged 35, is accused of having stolen two television sets and approximately 17,000,000 Romanian lei (ROL) from the local headquarters of the PSD. As he has fled in order to avoid criminal investigation for the offence of aggravated theft, a general search has now been launched by the police (a fost dat în urmărire generală) and his photograph is now on the desk of the policemen of the judicial service [Biroul Judiciar] throughout the country. An inhabitant of Verneşti is wanted by police officers throughout the country, as he is the main suspect in a case of breaking and entering at the headquarters of the PSD in Suceava. S.A., aged 35, is suspected of being one of the organisers of the burglary of the local headquarters of the governing party committed at the end of last year. The night before Christmas Eve 2002 was marked by bad luck for the PSD in Suceava, as thieves visited their headquarters. On the morning of 24 December some of the members of this party arrived at the headquarters located in the centre of Suceava ... [and] noticed that the headquarters had been ravaged. After checking inside, they realised there had been a burglary and that the thieves had stolen two televisions and approximately ROL 17,000,000. While searching for valuables, the thieves vandalised the offices, breaking all the doors, and yanking the televisions from the electric sockets. Following an investigation by the Suceava police, the main suspect was identified as S.A., who has been missing from his place of residence since that date. S.A. (see photo) fled in order to avoid criminal investigation for the offence of aggravated theft and so a general search has been instituted and his photograph has been sent to judicial service police officers throughout the country. In a case where someone tries to avoid ‘getting nicked’ [pârnaie] by fleeing, despite being sought by the police, a countywide search is launched. If the person is not found within ninety days, the police launch a national search. In a case where there is information that the person has left the country, an international arrest warrant is issued, and the arrest of the fugitive is only a matter of time.” 7. Following the publication of the article, the father of S.A. sent a letter to the newspaper, which read as follows: “To the editor of Monitorul de Suceava, The undersigned A.D. found out from your newspaper that there was a national and local search order for my son, A.S., for the offence of aggravated theft. Regarding the [content of the] article, I can tell you that [at the time] my son was neither in the country nor in Suceava county as he was in Italy. The employees of the Suceava County Police Inspectorate promptly informed me that there had been a mistake and that the general search for my son had been called off. The document confirming this information is available to the public from the Suceava judicial service. My wish would be to have the article retracted.” 8. This letter was published in the newspaper on 29 August 2003. 9. On 15 September 2003 S.A. lodged with the Suceava District Court a criminal complaint against the applicant for the offence of defamation, as prescribed at the time by Article 206 of the Romanian Criminal Code. After explaining that at the time of the theft he was in Italy and thus it was impossible for him to have participated in the alleged offence, he mentioned that once his father had found out about the article, he had written to the newspaper, asking that it be retracted. The letter was published unedited, but nothing else was done since then. S.A. considered that the article contained serious allegations which considerably affected his public image, causing him personal suffering. He therefore requested that those responsible be convicted and ordered to pay him non-pecuniary damages in the amount of ROL 100,000,000. 10. In his defence the applicant submitted that the information concerning the general search for S.A., as well as the photograph of S.A., were given to him on 25 August 2003 by the Suceava judicial service and thus there had been no reason for him to doubt it. He contended that at the time of the publication, the general search order issued in respect of S.A. was valid. He further argued that he did publish a retraction in the newspaper, namely the letter of S.A.’s father. 11. On 17 October 2003, the head of the Police Department of Suceava informed the first-instance court that: “In response to your letter in which you enquire whether on 25 August 2003 a general search order was outstanding against S.A. ... I wish to inform you that on 31 December 2002 by Order no. 124000 of the General Inspectorate of the Romanian Police a general search order was issued in respect of this person as he was attempting to avoid criminal investigation while under suspicion of theft. The measure was revoked by Order no S/150522 of the General Inspectorate of the Romanian Police on 3 September 2003, after clarification of S.A.’s situation”. 12. On 19 November 2003 the court acquitted the applicant of the charge of defamation; however it ordered the applicant to pay, jointly with the newspaper, the sum of ROL 10,000,000 to S.A. The relevant excerpts from the judgment read as follows: “Taking into account the fact that the applicant obtained information concerning the suspect from the judicial office within the General Police Inspectorate, he cannot be found to have deliberately (mens rea) defamed the plaintiff ... Under the civil limb of the action, defamation concerns public communication of a distorted, negative image of a person, which is likely to cause him or her personal suffering and damage to reputation, leading to changes such as social embarrassment and injury to self-esteem. The first-instance court considers that publishing the article in the newspaper caused damage to the standing of the civil party ... Moreover, it must be noted that although the civil party’s father notified the newspaper that the facts published about his son were false, the newspaper did not publish a retraction of the article written by the defendant.” 13. By a final judgment of 23 January 2004 the Suceava County Court rejected an appeal by the applicant and upheld the first-instance court’s judgment. The court stated in its reasoning the following: “Even though there is no mens rea as far as the offence of defamation provided for in Article 206 of the Criminal Code is concerned, given the source of information at the date of the publishing of the article, the defendant’s obligation to pay compensation to the civil party cannot be set aside. This is because following the discovery of the error he did not publish a retraction in order to try to rectify it. The article caused non-pecuniary damage to the civil party which can be repaired only in the manner established by the first-instance court”.
| 0 |
test
|
001-173478
|
ENG
|
SRB
|
COMMITTEE
| 2,017 |
CASE OF JANKOVIĆ v. SERBIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
5. The applicant was born in 1957 and lives in Bela Crkva. 6. He was employed by “Betonjerka”- DP, a socially-owned company based in Bela Crkva (hereinafter “the debtor”). 7. On 20 May 2003 the Bela Crkva Municipal Court ordered the debtor to pay the applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. On the same day this judgment became final. 8. On 14 October 2003 upon the applicant’s request to that effect, the Bela Crkva Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs. 9. The Government in its observations maintained that the said judgment had been fully enforced by the domestic decisions of 2 December 2004, 4 November 2005 and 19 May 2006 respectively. The applicant did not contest this submission. 10. On 10 February 2009 the Bela Crkva Municipal Court ordered the debtor to pay the applicant other specified amounts on account of salary arrears and social insurance contributions. In addition the domestic court ordered each party to pay its own costs of the civil proceedings. This judgment became final on 18 February 2009. 11. On 30 April 2009 upon the applicant’s request to that effect, the Bela Crkva Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs. 12. The said decision remains unenforced to the present date. 13. On 12 May 2009 the Pančevo Commercial Court opened insolvency proceedings in respect of the debtor. 14. On 22 September 2009, upon a submission to that effect, the Pančevo Commercial Court recognized the applicant’s respective claims. 15. On 27 August 2012 the Pančevo Commercial Court terminated the insolvency proceedings against the debtor, having decided to continue with the insolvency action against the debtor’s estate. 16. The insolvency proceedings are still pending. 17. On 8 August 2013 the applicant lodged a constitutional appeal complaining firstly about the fairness of the insolvency proceedings. Further, he requested the Constitutional Court to adopt a decision obliging the respondent State to pay from its own funds his unpaid salaries. In particular, the applicant had referred only to the judgment which had been adopted in his favour on 10 February 2009. In so doing, the applicant also relied on the Court’s case-law related to the non-enforcement of domestic court decision rendered against socially-owned companies in Serbia. 18. On 31 March 2015 the Constitutional Court dismissed the applicant’s appeal finding that it is not vested with the power of the insolvency court to enable the payments of the claims recognized in the insolvency proceedings.
| 1 |
test
|
001-161946
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF TRAPEZNIKOV AND OTHERS v. RUSSIA
| 3 |
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
|
Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicants were claimants in civil proceedings. 6. In the applications Trapeznikov v. Russia and Bychkov and Others v. Russia, the applicants were former participants of the Chernobyl clean-up operation who sued the relevant authorities for an inflation adjustment to their social benefits. 7. In the application Markova v. Russia, the applicant sought the eviction of her late son’s wife and her granddaughter from the flat she was living in, alleging that she was the sole owner because her son had renounced his share in the flat in her favour. 8. In the application Ryabchikov v. Russia, the applicant inherited a house in accordance with a will drawn up by his late mother. Later he discovered that she had two plots of land which she transferred back in 1994 to an agricultural company to which she was a member. The applicant sought to recover the property of these two plots of land alleging that the transfer had not been duly formalised and that consequently the land formed part of his inheritance. 9. In all of the applications, the first-instance courts found for the applicants, the judgments were upheld on appeal and they became enforceable. Subsequently, at the defendants’ requests, the presidia of the relevant regional courts quashed the judgments by way of supervisory review. In the applications Trapeznikov and Bychkov and Others, the presidia found that the lower courts failed to take into account the specific method of calculation of indexation established by the Government for this particular category of social benefits. In the applications Markova and Ryabchikov, they concluded that the findings of the lower courts favorable to the applicants were based on the retrospective application of the law (see Appendix).
| 0 |
test
|
001-176816
|
ENG
|
BGR
|
COMMITTEE
| 2,017 |
CASE OF KARZHEV v. BULGARIA
| 4 |
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
|
Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1945 and lives in Sofia. 6. The applicant is a former prosecutor. For several years, until 2005 or 2006, he served as district prosecutor for Sofia, heading what has been described as the largest prosecution office in Bulgaria. While in that post, he got into a conflict with several of his subordinates, including B.K. and G.C. 7. After the applicant left his post, a commission was appointed with the task of looking into the prosecution office’s work under his management. B.K. and G.C. were among the commission’s members. The revision carried out by the commission led subsequently to the opening of criminal proceedings against the applicant, as it was alleged that he had exerted pressure on one of his subordinates in relation to the outcome of a case. 8. On 12 October 2006 the national daily Trud published an interview with the applicant, where he stated: “All my life I have fought against crime. What is more, I have tried to defeat the mafia present in the prosecution services. I admit that I have failed. And now I am bearing the consequences of that. The commission which carried out the inquiry [at the district prosecutor’s office] includes exactly those prosecutors, [B.K., G.C. and a third person], who staged a revolt at the time against the working methods I introduced. The aim of those methods was to eliminate any grounds for corrupt arrangements related to the cases. That did not suit those three prosecutors and the notorious [prosecutor N.N.].” 9. Warned by the journalist interviewing him that his words were strong, the applicant nevertheless continued: “I am saying things which will not surprise my colleagues. It is a public secret that one of the prosecutors I mentioned is known among barristers and “clients” of the prosecution not so much with his own name, but with another one.” The applicant then explained that the prosecutor at issue was known as “Prosecutor Rushvetchiyski” (прокурора Рушветчийски), meaning someone who takes bribes, derived from the colloquial word for bribe, rushvet (рушвет). 10. Asked by the journalist whether the Chief Public Prosecutor knew that, the applicant continued: “If he does not know, he may ask me. I am knowledgeable about corruption patterns. And because I respect his efforts to defeat these patterns, I will give him a well-meant advice: he should check the properties owned by the people accusing me of having committed an offence while doing my work.” 11. Questioned about a finding by the commission that a “bad psychological atmosphere” existed at the Sofia district public prosecutor’s office while it was headed by him, the applicant stated further: “The inspection might be right, if by ‘bad psychological atmosphere’ they mean my intolerance towards those prosecutors ..., who performed their duties in a sloppy manner, or attended meetings with the lawyers of criminals to decide on the outcome of cases. There were such prosecutors at the [Sofia district prosecutor’s office]. They became an organised group when the prosecutor [N.N.] came to work with us. ... The animosity between me and [N.N.’s] circle, comprising the unhealthiest elements in the prosecution service, is well known. As are known from media publications [N.N.’s] palaces, the companies owned by his wife in association with criminals. ... It is ironic that exactly those prosecutors which we at the [district prosecutor’s office] called “[N.N.’s] guardsmen” are in the group which is to check my work. Me being checked by Prosecutor Rushvetchiyski! Shame! And have the case files of the checkers also been checked?” 12. Asked then about the working methods he had introduced, the applicant stated: “Instead of commenting on whether the working methods introduced by me have been effective, I will give you simple statistics. I took over [the district prosecutor’s office] in 1996. During the previous year the prosecutors in it had drawn up 782 acts of indictment. 39% of those were remitted by the courts, and the acquittals were 12%. This means that the failures were 51%. The persons convicted were 768. Now pay attention to the statistics for 2004, after I introduced my working methods. Acts of indictment drawn up: 4,164. Only 8% of the cases remitted by the courts. Acquittals: 6%. Persons convicted: 3,594. I am not being smug about the obvious progress of the prosecution. On the contrary, I thought we could have improved even further. ...” Concerning the working methods at issue, the applicants said further: “The aim was to make the police officer and the prosecutor work side by side, exactly as European experts are recommending. And to reduce the possibilities for corruption deals made in private ... But I do not want to talk any further. My frustration is enormous. You understand why.” 13. In response to a question by the journalist as to why he had not discussed the matter with the Chief Prosecutor, the applicant said: “I don’t know if there is any point. In fact, what [he] is doing now in [his office] is what I tried to do at the time at the [Sofia district prosecutor’s office] – to sweep all the trash out of the house. I managed, to a certain extent, but at the end of the day many pieces of trash came to the surface. They are crushing me now. I hope sincerely that the same fate will not befall [the Chief Prosecutor].” 14. On 16 October 2006 Trud published B.K. and G.C.’s response to the applicant’s allegations. That article has not been submitted by the parties. 15. On an unspecified date in 2007, B.K. and G.C. initiated a private prosecution of the applicant, alleging that he had insulted them and had committed the offence under Articles 146 and 148 § 1 of the Criminal Code (see paragraph 24 below). They found the following statements particularly offensive: “I have tried to defeat the mafia present in the prosecution services”; “the unhealthiest elements in the prosecution service”; “many pieces of trash came to the surface ...crushing me now”; as well as his allegedly calling one of them “Prosecutor Rushvetchiyski”. They claimed that the offence was aggravated because the insult had been made through the media and concerned them in their capacity as “public officials”. 16. In the context of the criminal proceedings, B.K. and G.C. also brought civil claims for damages against the applicant, each of them seeking 10,000 Bulgarian levs (BGN) in compensation. 17. The first-instance court, the Plovdiv District Court, heard a number of witnesses, who described the conflict between the applicant and B.K. and G.C. It also heard the applicant, who stated that when making the above statements he had not referred to either of the two complainants and pointed out that in the interview he had mentioned the names of two other prosecutors, in particular N.N. 18. In a judgment of 5 December 2007, the Plovdiv District Court acquitted the applicant and dismissed the civil claims against him. It considered that it had not been established that the expressions complained of had indeed referred to B.K. and G.C. It found further that the complainants had seen the statements as being aimed at them, and had felt their reputation and dignity as being harmed, “owing to their strained relations” with the applicant. 19. B.K. and G.C. lodged an appeal. In a final judgment of 22 May 2008 the Plovdiv Regional Court reversed the lower court’s ruling and convicted the applicant, finding that he was guilty of insult in an aggravated form. It set aside his criminal liability but imposed an administrative penalty on him – a fine of BGN 1,000 (the equivalent of 510 euros (EUR)). Furthermore, it ordered him to pay each of the complainants BGN 5,000 (the equivalent of EUR 2,551) in damages, plus interest, and BGN 412 (the equivalent of EUR 210) for the costs and expenses incurred by the complainants. 20. The Regional Court reasoned as follows: “It is a fact that the accused uttered the expressions indicated in the private criminal prosecution – “mafia in the prosecution services”, “Rushvetchiyski”, “the unhealthiest elements in the prosecution service” and “many pieces of trash came to the surface ...crushing me now”. It is also a fact that the expressions were uttered in an interview, which was published and disseminated through the mass media – the Trud newspaper ..., in its issue of 12 October 2006. It is a fact that the complainants ... were named in their capacity as public officials – being prosecutors at the Sofia district public prosecutor’s office – and in relation to their official duties.” ... “It has been established that the complainants were aware of those statements, on the basis of the testimony [of the witnesses], as well as on the basis of the article in Trud published on 16 October 2006, and presented in the case, which contained ... their response to the interview of 12 October 2006 ....” “It can be seen from the testimony [of the witnesses] that after reading the interview given by the accused ...the complainants felt that their honour and dignity had been harmed, which caused a feeling of humiliation ...” “The accused’s explanations show that he was aware that the incriminatory expressions were offensive and humiliating to those to whom they were addressed [and] the manner in which he disseminated them [shows] that he aimed to make them public and that they reach the complainants ...” “The accused’s claim in his defence, endorsed by the district court, that the incriminatory expressions were not directed specifically at the complainants ..., cannot be accepted by the appeal court. The fact that [the statements] may have been directed against two other [prosecutors whose names were mentioned in the interview], and that those people may have decided not to prosecute the accused for harming their honour and dignity, does not alter the fact that the accused’s criminal liability in respect of the two complainants must be engaged.” 21. The applicant paid in the amounts indicated in paragraph 19 above on 7 August 2008. The total amount paid, including interest and the fees charged by the enforcement official, was BGN 14,826 (the equivalent of about EUR 7,565). 22. On 5 January 2009 Trud published an interview with B.K. and G.C., where they discussed the applicant’s conviction.
| 1 |
test
|
001-168855
|
ENG
|
RUS
|
COMMITTEE
| 2,016 |
CASE OF BORISENKO AND OTHERS v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. In applications nos. 18682/09 and 49397/10, the applicants also raised other complaints under the provisions of the Convention.
| 1 |
test
|
001-158077
|
ENG
|
TUR
|
CHAMBER
| 2,015 |
CASE OF BREMNER v. TURKEY
| 3 |
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano;Ksenija Turković
|
7. The applicant was born in 1967 and lives in Strathfield in Australia. 8. At the material time he had been a correspondent with an Australian newspaper in Turkey. He had also been working voluntarily for a bookshop specialising in books on Christianity. 9. On 24 June 1997 he appeared in a television documentary broadcast in the framework of the programme Son çare (“Last Resort”), hosted by Ms Hülya Koçyiğit. 10. During the programme the hostess introduced the documentary by pointing out that it concerned covert activities conducted in Turkey by “foreign pedlars of religion” (yabancı din tüccarları). The ensuing documentary was along the following lines: Over footage of mosques and then Christian religious ceremonies, a voice stated that everyone, whether a member of the Muslim majority or a religious minority, had the right to belong to the religion of his or her own choosing and the freedom to practise that religion. According to the voice-over, it was strange that some proselytising activities were being carried out in a covert manner, despite the freedom of conscience and religion. Against a background of images of a dhikr ceremony performed by a Muslim brotherhood, showing followers in a state of trance, the voiceover asked whether, “in order to combat such instances of bigotry (yobazlık), an attempt was being made to set up groups of Christian converts, plunging the country into chaos”. The voiceover explained that the aim of the programme was not to judge any specific religion but to show that whatever their nationalities or religious beliefs, the pedlars of religion all used the same methods. 11. The voiceover explained that the programme producers had been contacted by a certain A.N., who lived in Samsun. This person had been intrigued by an advertisement asking “would you like to read books free of charge?”, and had replied. In return, he had received a number of books by mail, all of them concerning Christianity. He had written back and had once again received books on the same subject. The second dispatch had been accompanied by a letter thanking him for his interest in the subject. 12. There had subsequently been a telephone exchange between A.N. and the sender, who had proved to be the applicant. 13. After that exchange it had been agreed that the applicant would travel to Samsun to meet A.N. 14. It was at that point that A.N. had decided to inform the programme producers and to invite them to make a documentary on the subject. 15. On 17 June 1997 the applicant had travelled to Samsun to meet A.N. and some of his “friends [purportedly] interested in Christianity” for the first time, in a restaurant. The conversation had been filmed by a hidden camera. 16. According to the voiceover, the applicant had then presented the teachings of the Bible. He had continued by comparing Christianity with other religions, emphasising his own beliefs. However, that sequence was not shown, on the grounds that the aim of the documentary was not to discuss the merits of specific beliefs but to expose the methods used. 17. A.N. and the applicant had arranged to meet up again the next day in an apartment, again accompanied by a group of A.N.’s friends purportedly desirous of learning about the Christian religion. 18. During that second meeting the applicant had explained that he was not alone but was part of a group working throughout Turkey. He had said that premises could be rented in Samsun for the converts, but that he would have to talk to his “boss” about that. The question of where the money would come from was difficult, but an open, intelligent attitude had to be adopted to such matters because converts could be accused of having changed religions thanks to pecuniary considerations rather than conviction. 19. The documentary then showed the following dialogue between the applicant and one of the participants: “Participant: - Have you read the Koran? Applicant: – Yes. Participant: – What did you think of it? Applicant: – I liked it. Some of the verses are good, but... Participant: – ... but there is also some nonsense? Applicant: – No, I wouldn’t say that, but it cannot save me, because I know I am a sinner. ... Applicant: – The knowledge which God has sent us is set out in the Bible, the Torah and the Book of the Psalms of David. [That knowledge] is complete in itself. We need no other prophet, because Jesus is divine in essence ...” 20. Just as the applicant was apparently preparing, with the help of a bowl of water, to explain to the participants the ritual of baptism, the person hosting the programme, Hülya Koçyiğit, burst into the room with a camera and a microphone. 21. She told the applicant that she had heard about the meeting and had come to make his acquaintance. She asked him who he was and where he came from. 22. The applicant replied that he was Australian and held an identity card up to the camera. He added that he was a journalist, and was involved in explaining the Christian faith on a voluntary basis. 23. Asked why the latter activity was covert, he answered that it was not covert, and that he had come to Samsun with full trust in the person who had contacted him. 24. The documentary then presented an interview between Ms Koçyigit and an academic from the Istanbul Faculty of (Islamic) Theology. The latter explained that Muslims were duty-bound to respect and believe in the divine nature of the holy books of all the monotheistic religions, pointing out that Islam was a religion of tolerance. However, he voiced his surprise at the covert nature of the activities shown in the documentary. 25. At the end of the programme the applicant was shown walking along carrying a bag. The voiceover described him as “Dion, the pedlar of religion, on his way to the police station to give a statement”. 26. According to the applicant, the hostess of the TV programme had been accompanied by police officers when she had burst into the room, and the officers had remanded him in custody after the discussions. 27. He had been released the following day, after having given his statement. 28. On 25 June 1997 the Samsun prosecutor’s office brought criminal proceedings against the applicant for insulting Allah and Islam. 29. On 28 April 1998 Samsun Criminal Court found the applicant innocent given that no evidence had been provided of a criminal offence. 30. On 24 June 1998 the applicant filed an action for damages against the programme presenter and producers. 31. Istanbul Regional Court (“IRC”) dismissed that action by judgment of 18 March 2003 on the grounds of the public interest of dissemination of information. 32. By judgment of 15 June 2004 the 4th Civil Chamber of the Court of Cassation set aside the latter judgment, by four votes to one. In its reasoning the Chamber noted that the case concerned a conflict of rights between freedom of expression, on the one hand, and personality rights on the other. Having reiterated the fundamental importance of freedom of the press, it pointed out that that freedom nevertheless had its limits. It considered that the claimant had not committed any unlawful act but had merely exercised his rights to freedom of expression and freedom of conscience, which two rights were secured under both the Constitution and the European Convention on Human Rights. That being the case, the claimant’s right to respect for his private life had suffered a twofold violation, first of all when he had been filmed by a hidden camera, and secondly when the images had been broadcast, accompanied by such expressions as “pedlar of religion” and “bigotry”. 33. On 18 March 2003, ruling on the case referred back to it, the TGI decided not to follow the reasoning of the 4th Civil Chamber and instead to maintain its previous judgment. 34. In the face of such resistance from the IRC, the case was referred ex officio to the Assembly of Civil Chambers of the Court of Cassation. By judgment of 7 December 2005, that Assembly upheld the finding of the first-instance court by thirty-five votes to eleven. In their reasoning, the judges of the superior court held that the impugned images had not concerned details of the applicant’s private life, but had been part of a documentary on a topical issue of interest to the general public. They considered that there had been a major public interest in broadcasting the documentary at issue and that the documentary-makers had struck a fair balance between the merits and the formal aspects of the subject. 35. According to the case file that judgment was served on the applicant on 28 February 2006. 36. The applicant submitted that the owner of the apartment which he had rented had ended his lease following the transmission of the documentary for security reasons. 37. He added that he had been expelled to Bulgaria. ...
| 1 |
test
|
001-175968
|
ENG
|
SMR
|
ADMISSIBILITY
| 2,017 |
PIRAS v. SAN MARINO
| 4 |
Inadmissible
|
Aleš Pejchal;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo
|
1. The applicant, Mr Fabrizio Stefano Piras, is an Italian national who was born in 1965 and lives in Moscow. He was represented before the Court by Mr A. Pagliano, a lawyer practising in Naples. 3. On 9 February 2015 the Financial Intelligence Agency (Agenzia di Informazione Finanziaria, hereinafter “the AIF”), the national authority responsible for combatting money laundering, ordered the temporary freezing of bank accounts (mentioned below at paragraph 5) at three named San Marinese banks, which were traced back to the applicant. 4. Pursuant to the relevant law, the AIF informed the investigating judge (Commissario della Legge Inquirente) of the freezing order and provided him with all the information in its possession. A criminal investigation was thus opened against the applicant and eleven others for the continuous offence of money laundering under Articles 50, 73 and 199 bis of the Criminal Code. 5. By a decision of 19 February 2015, served on the applicant’s counsel on 20 April 2015, the investigating judge, relying on Article 58 bis and ter of the Code of Criminal Procedure (see relevant domestic law below) preventively seized, inter alia, the following assets, which were all traced back to the applicant: (i) bank account No. 11/0111344; (ii) bank account No. 11/01/11677; (iii) securities portfolio (dossier titoli amministrati) No. 11/71/00042; (iv) bank account No. 11/81/02166; (v) the financial product (prodotto finanziario) No. 11/46/01034; and (vi) the insurance product (prodotto assicurativo) No. 11/84/00147. The judge also ordered the seizure of any credit balance or other assets (including any safe deposit boxes) traced back to the accused persons. A judicial notice was issued on the same day by the investigating judge and served on the applicant’s legal counsel. 6. According to the prosecution, the accused persons had between 2008 and 2011 laundered assets which were the product of fraudulent bankruptcy committed by a certain G. (one of the co-accused) to the detriment of various Italian companies (company P., company C. and others), which had been traced back to G. and of which he had been the director and liquidator. Other laundered assets were the product of other offences (such as embezzlement, fraud and tax fraud), also committed by G. The laundering had been carried out in twenty-two different episodes (all set out precisely in the judicial notice) and the applicant had taken part in fifteen of them. In particular, the accused persons had carried out several bank operations, consisting, inter alia, of repeated withdrawals and deposits of money, the issuing and cashing of cheques on behalf of fictitious persons or the other co-accused persons and the use of bank accounts (sometimes held by other co-accused persons, by relatives or foreign companies) to transfer money within the country or abroad for the purposes of concealing its criminal origin. 7. Except for the assets related to the alleged fraudulent bankruptcy by G., the alleged criminal origin of the other assets was indicated in the seizure decision by means of references to the legal classification of some of the offences allegedly committed by G. The second page of the decision specified offences such as “bankruptcies, embezzlement, fraud and tax fraud”, while page 42 gave more generic indications such as “acts of fraud and tax offences”. The decision gave no further details regarding the factual basis for such predicate offences. 8. In the detailed seizure decision, the investigating judge reconstructed in precise terms all the above-mentioned bank operations and expressly referred, inter alia, to the applicant’s financial situation. He noted that a customer due diligence test carried out on 19 September 2008 by one of the banks involved had shown that the applicant did not have any administrative role or shareholdings in any Italian companies which could produce any income. According to the judge, after that period, from 15 February 2013, the applicant had been a partner and advisor in a named management consultancy firm. He had not carried out any other business or professional activities and was not on the list of professionals who had received legitimate payments from the bankrupt companies, P. and C. In the light of that information, the judge considered that the applicant’s financial resources were not consistent with the financial, business or professional activities he had declared he carried out. 9. Furthermore, the investigating judge considered that there had existed a periculum in mora (danger in delay) in not issuing a seizure order, as the consequences of the offence could have been aggravated or prolonged. Indeed, the assets could have been withdrawn and/or concealed by the accused persons, thus frustrating the possibility for confiscation at the end of the proceedings. Moreover, the laundering was allegedly still ongoing at the time of the AIF’s temporary freezing order. By the same decision the judge also summoned the applicant for questioning. 10. On 4 May 2015 the applicant and two other accused persons represented by the same counsel lodged a complaint against the seizure decision with the Judge of Criminal Appeals (Giudice d’Appello Penale) under Article 56 of the Code of Criminal Procedure. 11. The applicant primarily requested the lifting of the decision in toto or alternatively a reduction in the amount of money seized to 280,000 euros (EUR). The grounds he gave included the fact that: (i) the judge had violated the principle of nullum crimen sine lege since he had applied a wording of Articles 58 bis and ter of the Code of Criminal Procedure which had been introduced only in 2013 and had therefore not yet been in force at the material time. According to the applicant, prior to the amendments introduced by Law No. 100 of 2013, the domestic law had not provided for a precautionary seizure with the aim of the future confiscation of items other than the price, product or profit of a crime or which had been used to commit a crime – the seizure had therefore been disproportionate; (ii) the alleged offences at the origin of the laundered money had been indicated by the investigating judge in a very generic way – he argued that such a lack of specifics was not sufficient to provide one of the prerequisites for the seizure, namely the fumus delicti (the presumption of a sufficient legal basis); (iii) the only predicate offence which had been mentioned in sufficiently precise terms in the seizure decision had been that of fraudulent bankruptcy to the detriment of company P., for which G. had been found guilty, at first-instance, in Italian criminal proceedings. However, in that connection and in relation to his alternative request, the applicant noted that the Italian court, in Udine, had found that G. had taken EUR 670,000 from the assets of company P. (which had then gone bankrupt) and that only a part of that money (EUR 280,000) had then been transferred to San Marino. Thus, there was a disproportion between the money seized (approximately EUR 1,650,000) and the money having an ascertained (or at least a precisely indicated) criminal origin (EUR 280,000). The applicant argued that the judge had failed even to give a summary description of the alleged actions or factual background constituting such offences and that such lacunas had made it impossible for him to adequately defend himself. 12. By a decision of 25 May 2015, served on the applicant on 28 May 2015, the Judge of Criminal Appeals rejected his requests. 13. In particular, the judge held that there had been no violation of the principle of nullum crimen sine lege since that rule was applicable only to substantive criminal provisions not procedural ones. The latter were subject, instead, to the tempus regit actum principle (the legality of an act can only be judged according to the law in effect at the time of the act). 14. According to the judge, preventive seizure (either probative or preventive with the aim of eventual permanent confiscation) could be ordered regardless of a final finding of guilt concerning an offence. Such a measure was aimed at preventing the commission of further offences or making sure that future measures were not frustrated. Moreover, contrary to the opinion of the defence, preventive seizure had been applicable at the material time (before the amendment of 2013) as section 39 of Law No. 134 of 2010 had expressly provided for it. 15. As to the difference between the sums seized and the alleged product of the offence, the court stated that Articles 58 bis and ter of the Code of Criminal Procedure did not set any limits on seizures or state that the seized amount had to be limited to funds belonging to the accused, or to the price, product, or profit of an offence. According to the judge, a proportionality test had to be carried out only at the stage of applying permanent confiscation following a finding of guilt, not at the stage of precautionary measures, given the different purpose of the measures. 16. With regard to the alleged general nature of the reference to the offences which had been at the origin of some of the assets, it had already been established in domestic case-law that in order to find someone guilty of money laundering it was not necessary to determine the type of predicate offence, the perpetrator, or the victim. It sufficed instead to have evidence of the criminal origin of assets which had been transferred, concealed or substituted – thus the burden of proving the illicit origin was satisfied if such an origin emerged clearly from a logical and coherent interpretation of the evidence. Hence, the investigating judge’s reasoning had sufficed for applying the seizure order since he had described in detail the bank operations carried out by the accused – the suspicious and unreasonable complexity of the operations, the relevant amount and their lack of transparency – elements which had spoken for themselves. Moreover, the investigating judge had highlighted the close relations between G. (the person who had allegedly collected the funds) and all the other accused persons and indicated the respective role of each in carrying out the laundering. 17. On 24 June 2015 the applicant lodged a complaint with the ThirdInstance Criminal Judge (Terza Istanza Penale), reiterating his earlier submissions and requests. In addition, he complained that the judge had reversed the burden of proof in connection with the lack of a precise indication of the fumus delicti in the seizure decision. 18. On 7 September 2015 the Attorney General (Procuratore del Fisco) filed submissions against the applicant’s appeal. 19. By a decision of 4 November 2015, served on 12 November 2015, the judge rejected both of the applicant’s requests. The judge stated that third-instance criminal proceedings were only interim proceedings aimed solely at reviewing the legality of precautionary measures and not the merits of a case. They could not be regarded as a sort of preliminary assessment of an accused’s guilt on criminal charges (since such an assessment was for trial courts). When a Third-Instance Criminal Judge was called on to review the legality of a precautionary measure, the judge had to assess the existence of fumus delicti, namely the plausibility of the investigator’s suspicions (ipotesi investigativa) concerning the commission of an offence and the possibility to trace it to the accused. The judge also had to review whether the substantive provisions that had been applied reflected the factual circumstances described in the notice of the offence (notizia di reato) and whether there had been a correct application of the procedural provisions concerning the admissibility and the assessment of evidence. In addition, the judge had to check whether the rights and duties of the parties had been adhered to; ensure that the requirements and limits of the measure had been correctly applied; and ascertain the existence of adequate reasoning justifying the measure. 20. The judge found that the submissions related to the existence of the fumus delicti, the reversal of the burden of proof and the problem of the assessment of the criminal origin of the assets were inadmissible on the grounds that they concerned the merits of the case and not the legality of the procedure. 21. After a detailed examination of the evolution of the provisions concerning seizures in the domestic law, the judge found no violation of the nullum crimen sine lege principle in the case or, in particular, of the principle of the non-retroactivity of criminal provisions. Moreover, the judge had not had to find any periculum in mora or make any other consideration concerning the accused’s wealth, his personal situation or financial needs, in order to apply a seizure order with the aim of future confiscation. 22. As to any lack of proportion in the seizure, the judge reiterated that the relevant Articles of the Code of Criminal Procedure applied by the investigating judge (Article 58 bis and ter) did not set any limits and the seizure order had therefore been in accordance with the law. 23. The judge also dismissed all the other grounds of appeal. In conclusion, he held that the investigating judge had not made any mistakes in applying or interpreting the relevant laws or in using his powers of discretion in his assessment. The seizure had therefore been necessary, inevitable and proportionate. 24. The offence of money laundering, Article 199 bis of the Criminal Code, reads, in so far as relevant, as follow: “(1) A person is guilty of money laundering where, except in cases of aiding and abetting, he conceals, substitutes, transfers or co-operates with others to so do, money which he knows was obtained as a result of crimes not resulting from negligence or contraventions (misfatto), and with the aim of hiding its origins. (2) or whosoever uses, or cooperates or intervenes with the intention of using, in the area of economic or financial activities, money which he knows was obtained as a result of crimes not resulting from negligence or contraventions (misfatto).” 25. Sections 38 and 39 of Law No. 134 of 26 July 2010, which were applicable until amendments to the Code of Criminal Procedure in 2013 (see paragraph 26 below), in so far as relevant, read as follows: “(1) The Commissario della Legge shall by a reasoned decision order the seizure of the corpus delicti and of items pertaining to a crime (cose ad esso pertinenti) which he deems necessary for the establishment of the facts. (2) Items on which or through which the crime has been committed, and items which constitute the product, profit or price of the crime, shall be considered corpus delicti. (3) The judicial authority or the judicial police (Polizia Giudiziaria) can examine and make a copy of acts, documents, mail, data and information contained in the computer software of financial institutions and seize acts, documents, mail, securities, funds, sums of money and all other items, even if they are contained in safe deposit boxes, when they have good reason to believe that such things pertained to the crime even if [such things] do not belong to the accused or are not registered in his name.” “(1) The Commissario della Legge shall by a reasoned decision order the seizure of items pertaining to a crime if the consequences of such a crime could be aggravated or prolonged or where the commission of other crimes could be facilitated. (2) The Commissario della Legge may also order the seizure of items for which confiscation is allowed, as well as things to which those items may have been transformed or converted, and of things with which they may have been merged (delle cose a cui sono state mescolate) and [the seizure] of the profits obtained therefrom.” 26. The provisions of Law No. 134/2010 were replaced by Articles 58 bis and 58 ter of the Code of Criminal Procedure by means of section 13 of Law No. 100 of 29 July 2013. Article 58 bis and ter, concerning probative and precautionary seizures, are virtually identical to sections 38 and 39 of Law No. 134 of 26 July 2010. The only difference concerns precautionary seizure: whereas Law No. 134/2010 stated that the application of a preventive seizure with the aim of confiscation was not mandatory and depended on the judge’s discretion (“may order” - puo’ disporre), Law No. 100/2013 considered it as mandatory (“shall order” - dispone). Moreover, the latter provision also stated that judges must not only order seizure in cases that have a view to a “direct” confiscation, but also in those aimed at “confiscation by equivalent means” (confisca per equivalente). 27. Article 56 of the Code of Criminal Procedure, in so far as relevant, reads as follows: “Decisions concerning coercive measures or seizures against persons or assets and their subsequent confirmation may be challenged before the Judge of Criminal Appeals by the accused or the Attorney General within ten days of notification or enforcement of the measure ...” 28. According to established domestic case-law (for example, the decision of 25 October 1993 by the Judge of Criminal Appeals in criminal proceedings no. 771/1993; decision of 21 June 1995 by the Judge of Criminal Appeals in criminal proceedings no. 771/1993; decision of 21 November 2000 by the Judge of Criminal Appeals in criminal proceedings no. 1186/1998; and the decision of 4 April 2001 by the Judge of Criminal Appeals in proceedings concerning letter of request no. 68/2000), a complaint under Article 56 of the Code of Criminal Procedure is inadmissible if the Judge of Criminal Appeals is asked to review in general terms all the activities carried out by the investigating judge during the investigation. A Judge of Criminal Appeals can only intervene during an investigation in the specific cases expressly provided for by law, namely in order to review decisions applying precautionary measures, searches and seizures or in the case of aberrant decisions. 29. Law No. 55 of 25 April 2003 sets out the procedure to challenge the legitimacy of precautionary measures, such as seizures. 30. According to section 24 (in the light of section 3 of Constitutional Law No. 144 of 2003), a third-instance judge is competent to decide such challenges and such a challenge does not suspend the enforcement of the measure. Section 25 states that such a challenge can be lodged by interested parties or the Attorney General within thirty days of notification of the seizure decision to the parties. The appeal is then sent to the relevant body, which allows the parties to make submissions within ten days.
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test
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001-155352
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ENG
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FRA
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GRANDCHAMBER
| 2,015 |
CASE OF LAMBERT AND OTHERS v. FRANCE
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Preliminary objection allowed (Article 34 - Locus standi);Remainder inadmissible;No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect) (Conditional)
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Aleš Pejchal;André Potocki;Angelika Nußberger;Dean Spielmann;Egidijus Kūris;Erik Møse;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ján Šikuta;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mark Villiger;Nona Tsotsoria;Vincent A. De Gaetano
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10. The applicants, who are all French nationals, are Mr Pierre Lambert and his wife Mrs Viviane Lambert, who were born in 1929 and 1945 respectively and live in Reims, Mr David Philippon, who was born in 1971 and lives in Mourmelon, and Mrs Anne Tuarze, who was born in 1978 and lives in Milizac. They are the parents, a half-brother and a sister respectively of Vincent Lambert, who was born on 20 September 1976. 11. Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. According to the expert medical report ordered by the Conseil d’État on 14 February 2014, he is in a chronic vegetative state (see paragraph 40 below). 12. From September 2008 to March 2009 he was hospitalised in the resuscitation wing, and subsequently the neurology ward, of ChâlonsenChampagne Hospital. From March to June 2009 he was cared for in the heliotherapy centre in BercksurMer, before being moved on 23 June 2009 to the unit in Reims University Hospital providing follow-up and rehabilitative care to patients in a vegetative or minimally conscious state, where he remains to date. The unit accommodates eight patients. Vincent Lambert receives artificial nutrition and hydration which is administered enterally, that is, via a gastric tube. 13. In July 2011 Vincent Lambert was assessed by a specialised unit of Liège University Hospital, the Coma Science Group, which concluded that he was in a chronic neuro-vegetative state characterised as “minimally conscious plus”. In line with the recommendations of the Coma Science Group he received daily sessions of physiotherapy from September 2011 to the end of October 2012, which yielded no results. He also received 87 speech and language therapy sessions between March and September 2012, in an unsuccessful attempt to establish a code of communication. Attempts were also made to sit the patient in a wheelchair. 14. As Vincent Lambert’s carers had observed increasing signs in 2012 of what they believed to be resistance on his part to daily care, the medical team initiated in early 2013 the collective procedure provided for by the Act of 22 April 2005 on patients’ rights and end-of-life issues (see paragraph 54 below). Rachel Lambert, the patient’s wife, was involved in the procedure. 15. The procedure resulted in a decision by Dr Kariger, the doctor in charge of Vincent Lambert and head of the department in which he is hospitalised, to withdraw the patient’s nutrition and reduce his hydration. The decision was put into effect on 10 April 2013. 16. On 9 May 2013 the applicants applied to the urgent-applications judge of the ChâlonsenChampagne Administrative Court on the basis of Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom (référé liberté)), seeking an injunction ordering the hospital, subject to a coercive fine, to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required. 17. In an order dated 11 May 2013 the urgent-applications judge granted their requests. The judge held that, since no advance directives had been drawn up by Vincent Lambert, and in the absence of a person of trust within the meaning of the relevant provisions of the Public Health Code, the collective procedure should be continued with his family, despite the fact that the latter was divided as to what should become of the patient. The judge noted that, while Vincent Lambert’s wife had been involved in the procedure, it was clear from examination of the case that his parents had not been informed that it had been applied, and that the decision to withdraw nutrition and limit hydration, the nature of and reasons for which had not been disclosed to them, had not respected their wishes. 18. The judge held accordingly that these procedural shortcomings amounted to a serious and manifestly unlawful breach of a fundamental freedom, namely the right to respect for life, and ordered the hospital to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required. 19. In September 2013 a fresh collective procedure was initiated. Dr Kariger consulted six doctors, including three from outside the hospital (a neurologist, a cardiologist and an anaesthetist with experience in palliative medicine) chosen by Vincent Lambert’s parents, his wife and the medical team respectively. He also had regard to a written contribution from a doctor in charge of a specialised extended care facility within a nursing home. 20. Dr Kariger also convened two meetings with the family, on 27 September and 16 November 2013, which were attended by Vincent Lambert’s wife and parents and his eight siblings. Rachel Lambert and six of the eight brothers and sisters spoke in favour of discontinuing artificial nutrition and hydration, while the applicants were in favour of maintaining it. 21. On 9 December 2013 Dr Kariger called a meeting of all the doctors and almost all the members of the care team. Following that meeting Dr Kariger and five of the six doctors consulted stated that they were in favour of withdrawing treatment. 22. On conclusion of the consultation procedure Dr Kariger announced on 11 January 2014 his intention to discontinue artificial nutrition and hydration on 13 January, subject to an application to the administrative court. His decision, comprising a reasoned thirteen-page report, a sevenpage summary of which was read out to the family, observed in particular that Vincent Lambert’s condition was characterised by irreversible brain damage and that the treatment appeared to be futile and disproportionate and to have no other effect than to sustain life artificially. According to the report, the doctor had no doubt that Vincent Lambert had not wished, before his accident, to live under such conditions. Dr Kariger concluded that prolonging the patient’s life by continuing to treat him with artificial nutrition and hydration amounted to unreasonable obstinacy. 23. On 13 January 2014 the applicants made a further urgent application to the ChâlonsenChampagne Administrative Court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code, seeking an injunction prohibiting the hospital and the doctor concerned from withdrawing Vincent Lambert’s nutrition and hydration and an order for his immediate transfer to a specialised extended care facility in Oberhausbergen run by the association AmrésoBethel (see paragraph 8 above). Rachel Lambert and François Lambert, Vincent Lambert’s nephew, intervened in the proceedings as third parties. 24. The Administrative Court, sitting as a full court of nine judges, held a hearing on 15 January 2014. In a judgment of 16 January 2014 it suspended the implementation of Dr Kariger’s decision of 11 January 2014. 25. The Administrative Court began by observing that Article 2 of the Convention did not prevent States from making provision for individuals to object to potentially life-prolonging treatment. It likewise did not prevent the doctor in charge of a patient who was unable to express his or her wishes and whose treatment the doctor considered, after implementing a series of safeguards, to amount to unreasonable obstinacy, from withdrawing that treatment, subject to supervision by the Medical Council, the hospital’s ethics committee, where applicable, and the administrative and criminal courts. 26. The Administrative Court went on to find that it was clear from the relevant provisions of the Public Health Code, as amended following the Act of 22 April 2005 and as elucidated by the parliamentary proceedings, that artificial enteral nutrition and hydration – which were subject, like medication, to the distribution monopoly held by pharmacies, were designed to supply specific nutrients to patients with impaired functions and required recourse to invasive techniques to administer them – constituted a form of treatment. 27. Observing that Dr Kariger’s decision had been based on the wish apparently expressed by Vincent Lambert not to be kept alive in a highly dependent state, and that the latter had not drawn up any advance directives or designated a person of trust, the Administrative Court found that the views he had confided to his wife and one of his brothers had been those of a healthy individual who had not been faced with the immediate consequences of his wishes, and had not constituted the formal manifestation of an express wish, irrespective of his professional experience with patients in a similar situation. The court further found that the fact that Vincent Lambert had had a conflictual relationship with his parents, since he did not share their moral values and religious commitment, did not mean that he could be considered to have expressed a clear wish to refuse all forms of treatment, and added that no unequivocal conclusion as to his desire or otherwise to be kept alive could be drawn from his apparent resistance to the care provided. The Administrative Court held that Dr Kariger had incorrectly assessed Vincent Lambert’s wishes. 28. The Administrative Court also noted that, according to the report drawn up in 2011 by Liège University Hospital (see paragraph 13 above), Vincent Lambert was in a minimally conscious state, implying the continuing presence of emotional perception and the existence of possible responses to his surroundings. Accordingly, the administering of artificial nutrition and hydration was not aimed at keeping him alive artificially. Lastly, the court considered that, as long as the treatment did not cause any stress or suffering, it could not be characterised as futile or disproportionate. It therefore held that Dr Kariger’s decision had constituted a serious and manifestly unlawful breach of Vincent Lambert’s right to life. It issued an order suspending the implementation of the decision while rejecting the request for the patient to be transferred to the specialised extended care facility in Oberhausbergen. 29. In three applications lodged on 31 January 2014 Rachel Lambert, François Lambert and Reims University Hospital appealed against that judgment to the urgent-applications judge of the Conseil d’État. The applicants lodged a cross-appeal, requesting Vincent Lambert’s immediate transfer to the specialised extended care facility. The National Union of Associations of Head Injury and Brain Damage Victims’ Families (UNAFTC, see paragraph 8 above) sought leave to intervene as a third party. 30. At the hearing on the urgent application held on 6 February 2014 the President of the Judicial Division of the Conseil d’État decided to refer the case to the full court, sitting as a seventeen-member Judicial Assembly. 31. The hearing before the full court took place on 13 February 2014. In his submissions to the Conseil d’État, the public rapporteur cited, inter alia, the remarks made by the Minister of Health to the members of the Senate examining the bill known as the Leonetti bill: “While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.” 32. The Conseil d’État delivered its ruling on 14 February 2014. After joining the applications and granting UNAFTC leave to intervene, the Conseil d’État defined in the following terms the role of the urgentapplications judge called upon to rule on the basis of Article L. 5212 of the Administrative Courts Code: “Under [Article L. 521-2], the urgent-applications judge of the administrative court, when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority. These legislative provisions confer on the urgent-applications judge, who normally decides alone and who orders measures of an interim nature in accordance with Article L. 511-1 of the Administrative Courts Code, the power to order, without delay and on the basis of a ‘plain and obvious’ test, the necessary measures to protect fundamental freedoms. However, the urgent-applications judge must exercise his or her powers in a particular way when hearing an application under Article L. 521-2 ... concerning a decision taken by a doctor on the basis of the Public Health Code which would result in treatment being discontinued or withheld on grounds of unreasonable obstinacy and the implementation of which would cause irreversible damage to life. In such circumstances the judge, sitting where applicable as a member of a bench of judges, must take the necessary protective measures to prevent the decision in question from being implemented where it may not be covered by one of the situations provided for by law, while striking a balance between the fundamental freedoms in issue, namely the right to respect for life and the patient’s right to consent to medical treatment and not to undergo treatment that is the result of unreasonable obstinacy. In such a case, the urgentapplications judge or the bench to which he or she has referred the case may, as appropriate, after temporarily suspending the implementation of the measure and before ruling on the application, order an expert medical report and, under Article R. 625-3 of the Administrative Courts Code, seek the opinion of any person whose expertise or knowledge are apt to usefully inform the court’s decision.” 33. The Conseil d’État found that it was clear from the very wording of the relevant provisions of the Public Health Code (Articles L. 11105, L. 11114 and R. 412737) and from the parliamentary proceedings that the provisions in question were general in scope and applied to Vincent Lambert just as they did to all users of the health service. The Conseil d’État stated as follows: “It is clear from these provisions that each individual must receive the care most appropriate to his or her condition and that the preventive or exploratory acts carried out and the care administered must not subject the patient to disproportionate risks in relation to the anticipated benefits. Such acts must not be continued with unreasonable obstinacy and may be discontinued or withheld where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, whether or not the patient is in an end-of-life situation. Where the patient is unable to express his or her wishes, any decision to limit or withdraw treatment on the ground that continuing it would amount to unreasonable obstinacy may not be taken by the doctor, where such a measure is liable to endanger the life of the patient, without the collective procedure defined in the Code of Medical Ethics and the rules on consultation laid down in the Public Health Code having been followed. If the doctor takes such a decision he or she must at all events preserve the patient’s dignity and dispense palliative care. Furthermore, it is clear from the provisions of Articles L. 1110-5 and L. 1111-4 of the Public Health Code, as elucidated by the parliamentary proceedings prior to the passing of the Act of 22 April 2005, that the legislature intended to include among the forms of treatment that may be limited or withdrawn on grounds of unreasonable obstinacy all acts which seek to maintain the patient’s vital functions artificially. Artificial nutrition and hydration fall into this category of acts and may accordingly be withdrawn where continuing them would amount to unreasonable obstinacy.” 34. The Conseil d’Étatwithdraw treatment whose continuation would amount to unreasonable obstinacy had been met. To that end it needed to have the fullest information possible at its disposal, in particular concerning Vincent Lambert’s state of health. Accordingly, it considered it necessary before ruling on the application to order an expert medical report to be prepared by practitioners with recognised expertise in neuroscience. The experts – acting on an independent and collective basis, after examining the patient, meeting the medical team and the care staff and familiarising themselves with the patient’s entire medical file – were to give their opinion on Vincent Lambert’s current condition and provide the Conseil d’État with all relevant information as to the prospect of any change. 35. The Conseil d’État decided to entrust the expert report to a panel of three doctors appointed by the President of the Judicial Division on proposals from the President of the National Medical Academy, the Chair of the National Ethics Advisory Committee and the President of the National Medical Council respectively. The remit of the panel of experts, which was to report within two months of its formation, read as follows: “(i) to describe Mr. Lambert’s current clinical condition and how it has changed since the review carried out in July 2011 by the Coma Science Group of Liège University Hospital; (ii) to express an opinion as to whether the patient’s brain damage is irreversible and as to the clinical prognosis; (iii) to determine whether the patient is capable of communicating, by whatever means, with those around him; (iv) to assess whether there are any signs to suggest at the present time that Mr Lambert reacts to the care being dispensed to him and, if so, whether those reactions can be interpreted as a rejection of that care, as suffering, as a desire for the life-sustaining treatment to be withdrawn or, on the contrary, as a desire for the treatment to be continued.” 36. The Conseil d’État also considered it necessary, in view of the scale and the difficulty of the scientific, ethical and deontological issues raised by the case and in accordance with Article R. 625-3 of the Administrative Courts Code, to request the National Medical Academy, the National Ethics Advisory Committee and the National Medical Council, together with Mr Jean Leonetti, the rapporteur for the Act of 22 April 2005, to submit general written observations by the end of April 2014 designed to clarify for it the application of the concepts of unreasonable obstinacy and sustaining life artificially for the purposes of Article L. 1110-5, referred to above, with particular regard to individuals who, like Vincent Lambert, were in a minimally conscious state. 37. Lastly, the Conseil d’État rejected the applicants’ request for Vincent Lambert to be transferred to a specialised extended care facility (see paragraph 29 above). 38. The experts examined Vincent Lambert on nine occasions. They familiarised themselves with the entire medical file, and in particular the report of the Coma Science Group in Liège (see paragraph 13 above), the treatment file and the administrative file, and had access to all the imaging tests. They also consulted all the items in the judicial case file of relevance for their expert report. In addition, between 24 March and 23 April 2014 they met all the parties (the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital) and carried out a series of tests on Vincent Lambert. 39. On 5 May 2014 the experts sent their preliminary report to the parties for comments. Their final report, submitted on 26 May 2014, provided the following replies to the questions asked by the Conseil d’État. 40. The experts found that Vincent Lambert’s clinical condition corresponded to a vegetative state, without any signs pointing to a minimally conscious state. Furthermore, they stressed that he had difficulty swallowing and had seriously impaired motor functions of all four limbs, with significant retraction of the tendons. They noted that his state of consciousness had deteriorated since the assessment carried out in Liège in 2011. 41. The experts pointed out that the two main factors to be taken into account in assessing whether or not brain damage was irreversible were, firstly, the length of time since the accident which had caused the damage and, secondly, the nature of the damage. In the present case they noted that five and a half years had passed since the initial head injury and that the imaging tests showed severe cerebral atrophy testifying to permanent neuron loss, near-total destruction of strategic regions such as both parts of the thalamus and the upper part of the brain stem, and serious damage to the communication pathways in the brain. They concluded that the brain damage was irreversible. They added that the lengthy period of progression, the patient’s clinical deterioration since July 2011, his current vegetative state, the destructive nature and extent of the brain damage and the results of the functional tests, coupled with the severity of the motor impairment of all four limbs, pointed to a poor clinical prognosis. 42. In the light of the tests carried out, and particularly in view of the fact that the course of speech and language therapy carried out in 2012 had not succeeded in establishing a code of communication, the experts concluded that Vincent Lambert was not capable of establishing functional communication with those around him. 43. The experts observed that Vincent Lambert reacted to the care provided and to painful stimuli, but concluded that these were nonconscious responses. In their view, it was not possible to interpret them as conscious awareness of suffering or as the expression of any intent or wish with regard to the withdrawal or continuation of treatment. 44. On 22 and 29 April and 5 May 2014 the Conseil d’État received the general observations of the National Medical Council, Mr Jean Leonetti, rapporteur for the Act of 22 April 2005, the National Medical Academy and the National Ethics Advisory Committee. The National Medical Council made clear in particular that, in using the expression “no other effect than to sustain life artificially” in Article L. 11105 of the Public Health Code, the legislature had sought to address the situation of patients who not only were being kept alive solely by the use of methods and techniques replacing key vital functions, but also, and above all, whose cognitive and relational functions were profoundly and irreversibly impaired. It emphasised the importance of the notion of temporality, stressing that where a pathological condition had become chronic, resulting in the person’s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent. Mr Leonetti stressed that the Act was applicable to patients who had brain damage and thus suffered from a serious condition which, in the advanced stages, was incurable, but who were not necessarily “at the end of life”. Accordingly, the legislature, in the title of the Act, had referred to “patients’ rights and endoflife issues” rather than “patients’ rights in endoflife situations”. He outlined the criteria for unreasonable obstinacy and the factors used to assess it and stated that the reference to treatment having “no other effect than to sustain life artificially”, which was stricter than the wording originally envisaged (namely, treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others”. He pointed out that the Act gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified. The National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another’s life, which formed the basis for the relationship of trust between doctor and patient. The Academy reiterated its long-standing position according to which the Act of 22 April 2005 was applicable not only to the various “end-of-life” situations, but also to situations raising the very difficult ethical issue of the “ending of life” in the case of patients in “survival” mode, in a minimally conscious or chronic vegetative state. The National Ethics Advisory Committee conducted an indepth analysis of the difficulties surrounding the notions of unreasonable obstinacy, treatment and sustaining life artificially, summarised the medical data concerning minimally conscious states and addressed the ethical issues arising out of such situations. It recommended in particular a process of reflection aimed at ensuring that the collective discussions led to a genuine collective decision-making process and that, where no consensus could be reached, there was a possibility of mediation. 45. A hearing took place on 20 June 2014 before the Conseil d’État. In his submissions the public rapporteur stressed, in particular, the following: “... [t]he legislature did not wish to impose on those in the caring professions the burden of bridging the gap which exists between allowing death to take its course when it can no longer be prevented and actively causing death by administering a lethal substance. By discontinuing treatment, a doctor is not taking the patient’s life, but is resolving to withdraw when there is nothing more to be done.” The Conseil d’État delivered its judgment on 24 June 2014. After granting leave to MarieGeneviève Lambert, Vincent Lambert’s half-sister, to intervene as a third party, and reiterating the relevant provisions of domestic law as commented on and elucidated in the general observations received, the Conseil d’État examined in turn the applicants’ arguments based on the Convention and on domestic law. 46. On the first point the Conseil d’État reiterated that, where the urgentapplications judge was called on to hear an application under Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom) concerning a decision taken by a doctor under the Public Health Code which would result in treatment being discontinued or withheld on grounds of unreasonable obstinacy, and implementation of that decision would cause irreversible damage to life, the judge was required to examine any claim that the provisions in question were incompatible with the Convention (see paragraph 32 above). 47. In the case before it the Conseil d’État replied in the following terms to the arguments based on Articles 2 and 8 of the Convention: “Firstly, the disputed provisions of the Public Health Code defined a legal framework reaffirming the right of all persons to receive the most appropriate care, the right to respect for their wish to refuse any treatment and the right not to undergo medical treatment resulting from unreasonable obstinacy. Those provisions do not allow a doctor to take a life-threatening decision to limit or withdraw the treatment of a person incapable of expressing his or her wishes, except on the dual, strict condition that continuation of that treatment would amount to unreasonable obstinacy and that the requisite safeguards are observed, namely that account is taken of any wishes expressed by the patient and that at least one other doctor and the care team are consulted, as well as the person of trust, the family or another person close to the patient. Any such decision by a doctor is open to appeal before the courts in order to review compliance with the conditions laid down by law. Hence the disputed provisions of the Public Health Code, taken together, in view of their purpose and the conditions attaching to their implementation, cannot be said to be incompatible with the requirements of Article 2 of the Convention ..., or with those of Article 8...” The Conseil d’État also rejected the applicants’ arguments based on Articles 6 and 7 of the Convention, finding that the role entrusted to the doctor under the provisions of the Public Health Code was not incompatible with the duty of impartiality flowing from Article 6, and that Article 7, which applied to criminal convictions, was not relevant to the case before it. 48. Regarding the application of the relevant provisions of the Public Health Code, the Conseil d’État held as follows: “Although artificial nutrition and hydration are among the forms of treatment which may be withdrawn in cases where their continuation would amount to unreasonable obstinacy, the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori, has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy. In assessing whether the conditions for the withdrawal of artificial nutrition and hydration are met in the case of a patient with severe brain damage, however caused, who is in a vegetative or minimally conscious state and is thus unable to express his or her wishes, and who depends on such nutrition and hydration as a means of life support, the doctor in charge of the patient must base his or her decision on a range of medical and non-medical factors whose relative weight cannot be determined in advance but will depend on the circumstances of each patient, so that the doctor must assess each situation on its own merits. In addition to the medical factors, which must cover a sufficiently long period, be assessed collectively and relate in particular to the patient’s current condition, the change in that condition since the accident or illness occurred, his or her degree of suffering and the clinical prognosis, the doctor must attach particular importance to any wishes the patient may have expressed previously, whatever their form or tenor. In that regard, where such wishes remain unknown, they cannot be assumed to consist in a refusal by the patient to be kept alive in the current conditions. The doctor must also take into account the views of the person of trust, where the patient has designated such a person, of the members of the patient’s family or, failing this, of another person close to the patient, while seeking to establish a consensus. In assessing the patient’s particular situation, the doctor must be guided primarily by a concern to act with maximum beneficence towards the patient...” 49. The Conseil d’État 50. In that connection the Conseil d’État ruled as follows: “Firstly, it is clear from the examination of the case that the collective procedure conducted by Dr Kariger ..., prior to the taking of the decision of 11 January 2014, was carried out in accordance with the requirements of Article R. 4127-37 of the Public Health Code and involved the consultation of six doctors, although that Article simply requires that the opinion of one doctor and, where appropriate, of a second be sought. Dr Kariger was not legally bound to allow the meeting of 9 December 2013 to be attended by a second doctor designated by Mr Lambert’s parents in addition to the one they had already designated. Nor does it appear from the examination of the case that some members of the care team were deliberately excluded from that meeting. Furthermore, Dr Kariger was entitled to speak with Mr François Lambert, the patient’s nephew. The fact that Dr Kariger opposed a request for him to withdraw from Mr Lambert’s case and for the patient to be transferred to another establishment, and the fact that he expressed his views publicly, do not amount, having regard to all the circumstances of the present case, to a failure to comply with the obligations implicit in the principle of impartiality, which Dr Kariger respected. Accordingly, contrary to what was argued before the Châlons-en-Champagne Administrative Court, the procedure preceding the adoption of the decision of 11 January 2014 was not tainted with any irregularity. Secondly, the experts’ findings indicate that ‘Mr Lambert’s current clinical condition corresponds to a vegetative state’, with ‘swallowing difficulties, severe motor impairment of all four limbs, some signs of dysfunction of the brainstem’ and ‘continued ability to breathe unaided’. The results of the tests carried out from 7 to 11 April 2014 to assess the patient’s brain structure and function ... were found to be consistent with such a vegetative state. The experts found that the clinical progression, characterised by the disappearance of the fluctuations in Mr Lambert’s state of consciousness recorded during the assessment carried out in July 2011 by the Coma Science Group at Liège University Hospital and by the failure of the active therapies recommended at the time of that assessment, were suggestive of ‘a deterioration in the [patient’s] state of consciousness since that time’. Furthermore, according to the findings set out in the experts’ report, the exploratory tests which were carried out revealed serious and extensive brain damage, as evidenced in particular by ‘severe impairment of the structure and metabolism of the sub-cortical regions of crucial importance for cognitive function’ and ‘major structural dysfunction of the communication pathways between the regions of the brain involved in consciousness’. The severity of the cerebral atrophy and of the damage observed, coupled with the five-and-a-half-year period that had elapsed since the initial accident, led the experts to conclude that the brain damage was irreversible. Furthermore, the experts concluded that ‘the lengthy period of progression, the patient’s clinical deterioration since 2011, his current vegetative state, the destructive nature and the extent of the brain damage, the results of the functional tests and the severity of the motor impairment of all four limbs’ pointed to a ‘poor clinical prognosis’. Lastly, while noting that Mr Lambert was capable of reacting to the care administered and to certain stimuli, the experts indicated that the characteristics of those reactions suggested that they were non-conscious responses. The experts did not consider it possible to interpret these behavioural reactions as evidence of ‘conscious awareness of suffering’ or as the expression of any intent or wish with regard to the withdrawal or continuation of the treatment keeping the patient alive. These findings, which the experts reached unanimously following a collective assessment in the course of which the patient was examined on nine separate occasions, thorough cerebral tests were performed, meetings were held with the medical team and care staff involved and the entire file was examined, confirm the conclusions drawn by Dr Kariger as to the irreversible nature of the damage and Mr Lambert’s clinical prognosis. The exchanges which took place in the adversarial proceedings before the Conseil d’État subsequent to submission of the experts’ report do nothing to invalidate the experts’ conclusions. While it can be seen from the experts’ report, as just indicated, that Mr Lambert’s reactions to care are not capable of interpretation and thus cannot be regarded as expressing a wish as to the withdrawal of treatment, Dr Kariger in fact indicated in the impugned decision that the behaviour concerned was open to various interpretations, all of which needed to be treated with great caution, and did not include this aspect in the reasons for his decision. Thirdly, the provisions of the Public Health Code allow account to be taken of a patient’s wishes expressed in a form other than advance directives. It is apparent from the examination of the case, and in particular from the testimony of Mrs Rachel Lambert, that she and her husband, both nurses, had often discussed their respective professional experiences in dealing with patients under resuscitation and those with multiple disabilities, and that Mr Lambert had on several such occasions clearly voiced the wish not to be kept alive artificially if he were to find himself in a highly dependent state. The tenor of those remarks, reported by Mrs Rachel Lambert in precise detail and with the corresponding dates, was confirmed by one of Mr Lambert’s brothers. While these remarks were not made in the presence of Mr Lambert’s parents, the latter did not claim that their son could not have made them or that he would have expressed wishes to the contrary, and several of Mr Lambert’s siblings stated that the remarks concerned were in keeping with their brother’s personality, past experience and personal opinions. Accordingly, in stating among the reasons for the decision at issue his certainty that Mr Lambert did not wish, before his accident, to live under such conditions, Dr Kariger cannot be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident. Fourthly, the doctor in charge of the patient is required, under the provisions of the Public Health Code, to obtain the views of the patient’s family before taking any decision to withdraw treatment. Dr Kariger complied with this requirement in consulting Mr Lambert’s wife, parents and siblings in the course of the two meetings referred to earlier. While Mr Lambert’s parents and some of his brothers and sisters opposed the discontinuing of treatment, Mr Lambert’s wife and his other siblings stated their support for the proposal to withdraw treatment. Dr Kariger took these differentd that the fact that the members of the family were not unanimous as to what decision should be taken did not constitute an impediment to his decision. It follows from all the above considerations that the various conditions imposed by the law before any decision can be taken by the doctor in charge of the patient to withdraw treatment which has no effect other than to sustain life artificially, and whose continuation would thus amount to unreasonable obstinacy, may be regarded, in the case of Mr Vincent Lambert and in the light of the adversarial proceedings before the Conseil d’État, as having been met. Accordingly, the decision taken by Dr Kariger on 11 January 2014 to withdraw the artificial nutrition and hydration of Mr Vincent Lambert cannot be held to be unlawful.” 51. Accordingly, the Conseil d’État set aside the Administrative Court’s judgment and dismissed the applicants’ claims.
| 0 |
test
|
001-174437
|
ENG
|
UKR
|
COMMITTEE
| 2,017 |
CASE OF SHYLO 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)
|
Nona Tsotsoria;Gabriele Kucsko-Stadlmayer
|
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law.
| 1 |
test
|
001-157519
|
ENG
|
ROU
|
CHAMBER
| 2,015 |
CASE OF MIREA v. ROMANIA
| 4 |
No violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
|
Branko Lubarda;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits
|
5. The applicant was born in 1968 and lives in Braşov. 6. At the time of the events in question the applicant was occasionally working for M.V. and also providing information on the latter’s business activities to S.S., an operative officer of the Romanian Intelligence Service (“the SRI”). 7. In the evening of 25 September 2002 E. paid a visit to M.V. at the latter’s business headquarters in Braşov and asked him to return 50,000 United States dollars (USD) which E. had allegedly lent him to help him start his activity. M.V. had previously refused to pay the money back. That evening, an argument broke out among them. M.V. and four other individuals kidnapped E. and beat him severely to induce him to give up the debt demand. Later that night M.V. called the applicant and asked him to come by car to the headquarters to transport someone to Bacău. 8. The applicant arrived later in the evening, and found E. severely beaten and begging M.V. to spare him. The attackers tied the victim up and put him in the boot of his own car. They drove away, murdered E. and staged a road accident as cover-up. The applicant arrived at the scene by car and drove the attackers back to their homes. 9. On 5 October 2002 the applicant contacted S.S., who was away on holiday, to tell him what had happened. They met a few days later, upon S.S.’s return, and on 23 October 2002 S.S. transmitted the information to the police via his superiors. 10. There was no criminal investigation of the events until a year later, when one of the participants confessed to the police. 11. On 27 October 2003 the applicant was informed that accusations had been brought against him, and made a statement to the prosecutor’s office. A lawyer of his choice was present at that meeting. 12. On 18 January 2004 the applicant and the others involved in the events of 25 September 2002 were committed for trial on charges of illegal deprivation of liberty and extremely aggravated murder. 13. Throughout the proceedings the applicant argued that he had infiltrated M.V.’s group as an informant on the behalf of the SRI. He also stated that M.V. had forced him to participate in the events by threatening him and his family. 14. On 10 November 2004 he was convicted by the Braşov County Court of aiding and abetting illegal deprivation of liberty and extremely aggravated murder. He was sentenced to seven years’ imprisonment and removal of certain rights. 15. The court based the conviction on a whole body of evidence, consisting of witness testimony, the statements made by the accused persons during the proceedings, expert examinations and police reports. Based on the evidence in the file, the County Court established that the fact for the applicant to come to the M.V.’s business headquarters at M.V.’s request and to drive alongside the car where the victim was transported and to drive the culprits back with his car constituted the crimes he was accused of; the court considered that he had helped the other culprits to commit their crimes. 16. As for the applicant’s connection with the SRI, the County Court acknowledged that he was transmitting information on M.V.’s group to officer S.S. It also took note that the SRI denied that the information about the murder provided by the applicant had been the result of collaboration with the Service. The County Court heard testimony from F.B., who confirmed that both he and the applicant had infiltrated M.V.’s group on behalf of the SRI. F.B. had been informed by S.S. that after September 2002 it had become too dangerous for the applicant to stay in direct contact with M.V., because of certain information in the applicant’s possession. 17. The County Court considered the Prevention and Combat of Organised Crime Act (see paragraph 37 below) and decided that the applicant could not benefit from any status as an SRI informant, for the following reasons: “Under Article 21 of the Prevention and Combat of Organised Crime Act, in exceptional situations, when there are indications that a crime has been committed or is being planned by members of an organised criminal group, and neither the crime nor its perpetrators can be identified by other methods, informants may be used in order to gather data concerning the commission of crimes and the identification of the perpetrators. No such indication ... existed in the present case and [the applicant] was not an informant used for gathering data concerning the crimes of illegal deprivation of liberty and extremely aggravated murder.” 18. The court also examined and discarded as unfounded the applicant’s allegations of coercion and considered that the applicant could have refused to help or informed the authorities about what was happening. It maintained as follows: “[The applicant] had the option to leave when, after arriving at the [scene], he realised what was going on, but at no point during the events had he expressed the intention to leave the group. Even assuming that he had only remained in order to collect data for the SRI, he had had an obligation to inform immediately the police or the SRI about what was happening. From the statements given by the participants, including the applicant himself, it appears that on several occasion [during that night, the applicant] remained alone and could have used his mobile phone to call the police but he did not do it, claiming that the mobile phone keyboard was blocked. However, the court cannot accept this explanation, as it is notorious that calling the police phone number is free of charge.” 19. The judgment was upheld by the Braşov Court of Appeal on 26 January 2006. 20. S.S. gave testimony in the appeal proceedings, and confirmed that he had been informed about the murder by the applicant. He reiterated in detail the events described by the applicant. As for the nature of the collaboration between him and the applicant, S.S. explained as follows: “My collaboration with [the applicant] was based on friendship and I confirm that he is an exceptional man. Our friendship goes back some twenty years. I knew that [the applicant] had relations with a certain group, but the members of the group and its activity was of no interest for the SRI, as it did not concern threats to the national security. ... I expressly declare that I cannot give any information about specifically infiltrating [the applicant] in [M.V.]’s group, because at that point, the group was not of interest for the national security.” 21. S.S. refused to give details about where he had met with the applicant, asserting that the information requested by the court was classified. 22. The Court of Appeal concluded that the applicant had taken on his own initiative the role of an SRI informant: “[The applicant] claimed that he had been infiltrated in M.V.’s criminal group by the SRI, in order to gather data about its activities. However, the SRI informed the court, by address no. 49,538 of 15 April 2004 ... that the information presented by [the applicant] to S.S. was not the outcome of any collaboration between that Service and [the applicant]. Moreover, the witness S.S. (an SRI officer), declared that M.V.’s criminal group did not constitute threats to national security ..., that being the reason why [the applicant] was not requested to gather intelligence about M.V. group. It follows that [the applicant] took on his own initiative the role of “informant”, without being officially requested to do so, and without being granted permission to participate in crimes for the purpose of gathering intelligence.” 23. The decision by the Braşov Court of Appeal was upheld by the High Court of Cassation and Justice on 24 October 2006. The High Court increased the sentence to ten years in prison. This decision was final. 24. The applicant asked for a revision of the final decision. He reiterated that it was impossible to prove before the ordinary courts that he was an SRI informant, as on the one hand the information was classified at the time, and, on the other S.S. risked losing his job if he divulged such information. He requested that the information be declassified. Furthermore, he pointed out that, as the police had failed to act upon the information he had transmitted through the SRI, he could not even benefit from a more lenient sentence, as had been the case with the other participant who had confessed to the crimes. 25. On 25 July 2007 the request was granted in principle by Braşov County Court. It considered that the information could constitute relevant evidence which had not been available to the ordinary courts. 26. The County Court heard a fresh statement from S.S., who reiterated his previous statements. He further explained that he could not reveal whether the applicant had infiltrated M.V.’s group as an informant, nor could he discuss the nature or content of the information which the applicant had given him, as the law considered it classified information. Nor could he clarify whether, as a general rule, an informant who committed an offence would benefit from protection. 27. On 12 September 2007 the SRI informed the County Court that it declassified partially the report drafted by S.S. based on the information given by the applicant concerning the crimes (the report, which contained a description of the facts as presented by the applicant, was adduced to the criminal file). It further explained that the document drafted by the applicant himself for S.S. had been destroyed after verification of the information contained and communication of that information to the police. It lastly reiterated that the information concerning collaboration with the SRI was classified under Law no. 182/2002, “the Protection of Classified Information Act”, and, if revealed, could “severely affect national security”. 28. The County Court made an extensive examination of the evidence in the file and the applicable laws. It acknowledged that the applicant had failed to provide it with conclusive evidence of his status as an SRI informant, but also considered that that situation was not imputable either to him or to the courts. It noted that declassification of documents was left to the discretion of the SRI, which, claiming “national security”, refused to reveal relevant information in the case at hand. Moreover, declassification followed a lengthy and cumbersome procedure, which undermined the rights of the defence as guaranteed by Article 6 of the Convention. 29. For these reasons, the court considered that given the difficulty of obtaining unequivocal evidence as to the applicant’s status, the incomplete information provided by the SRI and by S.S. should be given increased significance in favour of the applicant. 30. It thus concluded that the applicant had participated in the events solely as an SRI informant, and that the representation of his own role and his feelings of fear, horror, despair and repugnance at the scene of the abuse against E. removed his criminal responsibility. 31. Consequently, on 20 November 2008, the County Court quashed the previous decisions in part and acquitted the applicant on both counts. 32. On 22 October 2009, acting upon an appeal lodged by the prosecutor’s office, the Braşov Court of Appeal quashed that judgment and dismissed the request for revision. It considered that that remedy could not be used solely to adduce new evidence, and that the ordinary courts had already examined the theory according to which the applicant had been a SRI informant who had infiltrated M.V.’s group: “Article 394 (a) of the Code of Criminal Procedure concerning revision does not refer to newly discovered evidence, because if it were so, revision would become another [ordinary] level of jurisdiction ... The new facts of circumstances [required by Article 394 above as reason for allowing the revision] will be confirmed by new evidence, but it is not the evidence that constitutes the reason for revision ...” 33. The court also considered that the fact that the status of an SRI informant was not regulated by law made it impossible for the courts to establish the extent of such activities, thus leaving room for abuse of that status. However, reliance of such status could not exonerate from criminal responsibility: “As there is no legal frame for regulating the status of an informant for an intelligence service, we cannot establish the scope of such a mandate, and thus the opportunity for abusing this status exists. The fact that [the applicant]’s activity as an informant would have benefitted the SRI does not exonerate [the applicant] from criminal responsibility for criminal acts.” 34. On 28 October 2010 the High Court of Cassation and Justice dismissed the appeal on points of law lodged by the applicant and upheld the decisions rendered by the Court of Appeal, on similar grounds to those given by the lower court.
| 0 |
test
|
001-162866
|
ENG
|
SRB
|
COMMITTEE
| 2,016 |
CASE OF McINNES v. SERBIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
|
4. The applicant was born in 1963 and lives in Cres Salisbury East, Australia. 5. On 19 March 1985 the applicant sustained injuries in a traffic accident caused by the vehicles owned by the Danilo Bošković A.D. - Grdelica and Srbijatrans – Niš, both State/socially-owned companies (the debtors). 6. On 23 November 2001 and 1 July 2008 the First Municipal Court in Belgrade rendered two separate judgments ordering the debtors to pay the applicant certain sums as compensation for the sustained damages. 7. Due to the debtors’ failure to fulfil their obligations from these decisions, the applicant submitted enforcement requests. On 7 October 2005 and 18 October 2010, respectively, the First Municipal Court in Belgrade issued enforcement orders to that effect. The enforcement proceedings are still pending and the above decisions remain unenforced.
| 1 |
test
|
001-146565
|
ENG
|
BGR
|
CHAMBER
| 2,014 |
CASE OF PREZHDAROVI v. BULGARIA
| 4 |
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
|
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
6. The applicants were born in 1968 and 1965 respectively and live in Pazardzhik. They are spouses. 7. On 20 August 2002 the first applicant, as a sole trader, took out a bank loan in order to purchase computers and to set up a computer club. The computer club was situated in a garage owned by the applicants. The second applicant assisted the first applicant in running the club and replaced him when he was absent. 8. When he started his business, the first applicant purchased five computers and several computer games, which he installed on the computers. His customers were able to use the computers for one Bulgarian lev (BGN) per hour. 9. As the first applicant was renting the computers to his clients, he was obliged to pay the necessary licensing fees to the distributors of the companies that owned the copyright of the products. However, in 2004 the first applicant failed to renew his contracts with the distributors. 10. On 3 April 2004 the police conducted a check on the applicants’ premises and warned the first applicant to abstain from illegally reproducing and distributing software. 11. On 9 November 2004 the director of the local sanitation department at the Ministry of Health ordered that the computer club be closed down for health reasons. 12. On 31 January 2005 Mr V.E., a manager of a company that distributed computer games, lodged a complaint with the district prosecutor in Pazardzhik. Mr V.E. stated that he had visited the applicants’ computer club on several occasions in the period between September and December 2004. He claimed to have noticed that despite their lack of a software license for reproduction and distribution, the applicants had installed certain types of games on the computers and were renting them to their clients. Mr V.E. mentioned specifically some of the games. He also claimed that the applicants had visited his office several times and had been aware of the requirements concerning reproduction and distribution of computer games. Lastly, he claimed that he had warned the applicants about the possible sanctions but had received only threats in response, especially from the second applicant. 13. In an order of 2 February 2005 the district prosecutor noted that a complaint had been lodged by Mr V.E. alleging that a crime had been committed under Article 172a § 2 of the Criminal Code of 1968 (see paragraph 32 below). He further observed that there was insufficient information to justify the institution of criminal proceedings. Therefore, relying on section 119(1)(3) of the Judiciary Act 1994 (see paragraph 26 below), he ordered the police to conduct an inquiry into the computer club in order to collect more information as to whether a crime had been committed under Article 172a § 2 of the Criminal Code 1968. The prosecutor stated that when examining the computer club, in the event that the police officers established that software was being used illegally, they should take measures to secure the necessary evidence, including an onthespot inspection and search and seizure of the computers. 14. In executing the prosecutor’s order, on 14 February 2005 the police authorities drew up an action plan. A police officer with technological expertise would compare the software installed on the computers with the purchased software. In the event that discrepancies were found, the police would conduct a search and seizure. The operation was planned for 21 February 2005. 15. At approximately 3.30 p.m. on 21 February 2005 the police, including a police investigator (дознател), arrived at the computer club. The applicants claimed that at that time the computer club had been closed to the public following the order of the Ministry of Health (see paragraph 11 above). They submitted that they had been at the club with some friends and that the cash till had been on because the second applicant had just finished a typewriting job and had been paid for it. 16. The police officers noted that the computers were running and that there were people in the club. They explained the aim of the inspection. It appears that the first applicant objected to the possible search and seizure, stating that the police did not have a judicial warrant, and asked for permission to contact a lawyer. The police apparently briefly pointed to the prosecutor’s order of 2 February 2005. The first applicant was allowed to contact his lawyer but, according to the applicants’ submissions, the police refused to wait for the lawyer’s arrival. 17. The police inspected the receipts from the club’s cash till and the daily sales record and concluded that the applicants had received money that day, most probably for providing commercial services. The police then inspected the applicants’ five computers and found that a number of computer games had been installed on them. The first applicant was invited to present documents, such as purchase invoices or any other evidence of his title to the games. As he failed to do so, the police seized the computers. The search-and-seizure operation ended at 6 p.m. 18. The search-and-seizure operation was carried out in the presence of two certifying witnesses. The police drew up a report containing an inventory of the seized items, namely the computers and their content, which consisted of computer programs, computer games and films. The report was signed without comment by the certifying witnesses. The first applicant refused to comment on the report or to sign it. 19. On 22 February 2005 the police investigator sent a letter to the district prosecutor informing the prosecutor of the results of the operation. She noted that following the search-and-seizure operation, criminal proceedings (a police investigation) had been instituted against the first applicant for illegal reproduction and distribution of software. 20. On the same day, at the request of the police investigator, a District Court judge approved the search-and-seizure operation on the basis of Article 135 § 2 of the Code of Criminal Procedure 1974 (“the 1974 Code”). The judge described factually the course of the search-and-seizure operation and briefly cited the text of Article 135 § 2, stressing that there had been pressing circumstances and that an immediate search and seizure had been the only means by which the collection and preservation of the necessary evidence could be undertaken. The decision was sent to the police in order to be enclosed with the case file as an integral part of the search-and-seizure record. 21. On 23 February 2005 the first applicant lodged an application with the District Court, requesting the court not to approve the searchandseizure record and arguing that a search and seizure had not been the only means by which the preservation of evidence could have been undertaken and that there had not been pressing circumstances. The first applicant also claimed that the computers contained letters as well as personal information about friends and clients. On 2 March 2005 the application was returned to the applicant as inadmissible as the search and seizure had already been approved by a court decision, which was not subject to appeal. 22. On 25 February 2005 both applicants submitted a request to the prosecutor for the return of the computers. They maintained that the computers contained private correspondence and personal information about themselves and their clients, and were also necessary for their other professional activities, namely providing typewriting services to the public. On 14 March 2005 the district prosecutor refused to return the computers. 23. The first applicant sought judicial review, arguing again that the computers contained personal information and correspondence with different State entities. In a decision of 15 April 2005 the Pazardzhik District Court upheld the prosecutor’s order. It held that the computers were the subject of an expert examination and were necessary for the investigation. It found irrelevant the assertion that the computers contained personal information. 24. In June 2005 the first applicant again sought the return of the computers. His request was rejected by the prosecutor and the court on 24 June and 15 July 2005 respectively on the grounds that the computers were necessary for the investigation. The applicant’s assertions that the computers contained personal information and were necessary for his wife’s business were not discussed. In October 2005 the applicant submitted the same request to the prosecutor, who again rejected it. The applicant submitted that the prosecutor had never forwarded his ensuing appeal against the rejection to the court. 25. On 8 November 2005 the first applicant was charged, inter alia, with the unlawful distribution of computer programs, computer games and films. In a final judgment of 22 December 2008 the Supreme Court of Cassation upheld the first applicant’s conviction. It held that the first applicant had lawfully acquired title to the computer games but that he had been distributing them illegally by renting the games to his clients. It also held that the first applicant had been illegally reproducing computer programs and films. The court found that the first applicant’s conduct had led to significant damage. He was sentenced to one year and six months’ imprisonment suspended for three years, and ordered to pay a fine in the amount of BGN 4,000. The computers were confiscated.
| 1 |
test
|
001-161983
|
ENG
|
HUN
|
CHAMBER
| 2,016 |
CASE OF R.B. v. HUNGARY
| 2 |
Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
6. The applicant, who is of Roma origin, was born in 1988 and lives in Gyöngyöspata, a village of 2,800 people, about 450 of whom are of Roma origin. 7. On 6 March 2011 the Movement for a Better Hungary (Jobbik Magyarországért Mozgalom), a right-wing political party, held a demonstration in Gyöngyöspata. Between 1 and 16 March 2011, in connection with the demonstration, the Civil Guard Association for a Better Future (Szebb Jövőért Polgárőr Egyesület) and two right-wing paramilitary groups (Betyársereg and Véderő) organised marches in the Roma neighbourhood of the village. 8. On 6, 9, and 10 March 2011, during the demonstration and the marches, there was a considerable police presence in Gyöngyöspata. 9. At around 11 a.m. on 10 March 2011 Mr J.F., the president of the local Roma minority self-governing body, informed the police that he and the mayor of the municipality had been threatened by people they did not know. The mayor reported on the same events to the police, explaining that earlier that day some fifty members of the Roma minority had confronted approximately fifteen members of the Civil Guard Association, who were joined by four or five unknown persons, one of whom had an axe and another a whip. 10. As it appears from the case file, at around the same time four men passed by the applicant’s house, yelling “Go inside, you damned dirty gypsies!” At this time the applicant was outside the house in her garden together with her daughter and some acquaintances. In response to the four men, the applicant and her acquaintances told them to leave, saying that it was their village. One of the men continued threatening them by yelling that he would build a house in the Roma neighbourhood “out of their blood”. He stepped towards the fence swinging an axe towards the applicant, but was held back by one of his companions. 11. At around 2 p.m. on the same day police officers K.K. and A.B. stopped and searched four individuals, Mr S.T., Mr F.W., Mr Cs.F., and Mr G.M. The mayor of Gyöngyöspata identified two of them, Mr S.T. and Mr F.W., as having participated in the incident that morning. The men were members of Betyársereg. Mr S.T. informed the police that he was the leader of one of the “clans” within the organisation. He said that because some members of his group, about 200 people, intended to come to Gyöngyöspata “to put the Roma situation in order”, he was there to “scout” the village. Later the same day, Mr S.T., who by then was extremely drunk, was again spotted by the police being dragged away from the Roma settlement by a female acquaintance. When questioned by the police, he said he only wanted to play football with the Roma children. 12. On 7 April 2011 the applicant lodged a criminal complaint against “unknown perpetrators” with the Heves County Regional Police Department, alleging offences of violence against a member of an ethnic group, harassment and attempted grievous bodily assault. The police opened an investigation on charges of violent harassment under section 176/A (2) of the Criminal Code. 13. In parallel, the Gyöngyös District Public Prosecutor’s Office opened an investigation on suspicion of harassment based on the report of a third person, Mr J.F., the president of the local Roma minority self-governing body. 14. On 12 April 2011 the applicant was heard as a witness concerning the events. She testified that three men and a woman had passed by her house and one of them, brandishing a whip, had threatened to build a house out of her blood. 15. At the request of her lawyer, the Gyöngyös Police Department informed the applicant that criminal proceedings had been instituted on charges of harassment on the basis of the criminal complaint lodged by Mr J.F. Subsequently, the applicant was informed that her complaint had been joined to that of Mr J.F. 16. On 14 July 2011 the Gyöngyös Police Department discontinued these proceedings on the grounds that harassment was punishable only if directed against a well-defined person, and that criminal liability could not be established on the basis of threats uttered “in general”. 17. The police also instituted minor offence proceedings on the ground that the impugned conduct was “antisocial”. 18. On 14 September 2011 a hearing was held in the ensuing minor offence proceedings in which Mr S.T. and five other persons, Mr C.S.F., Mr F.W., Mr G.M., Mrs A.B.I., and Mr I.N.I. appeared before the Gyöngyös District Court on charges of disorderly conduct. All six persons subject to the proceedings denied having threatened any members of the Roma community. Mr J.F., questioned as a witness, maintained that two of the persons subject to the proceedings had been wielding an axe and a whip and had threatened the inhabitants of the Roma settlement that they would kill them and paint the houses with their blood. Mr L.T., the mayor of Gyöngyöspata, identified one of the persons as having been present in Gyöngyöspata on 10 March 2011, but could not confirm that the threats had been directed at the Roma. Another witness, P.F., identified three of the persons as having participated in the incident and maintained that it was Mr I.N.I. who had threatened the inhabitants of the Roma settlement. The applicant, who was also heard as a witness, identified Mr S.T. and Mr F.W. as having been armed and Mr S.T. as having said that he would “paint the houses with [the applicant’s] blood.” 19. On an unspecified date the applicant attached to the criminal file extracts from comments posted on a right-wing Internet portal in which Mr S.T. had been referred to as the man who had “enforced order among the Roma of Gyöngyöspata with a single whip”. 20. At a further court hearing on 5 October 2011 the applicant’s legal representative requested that the minor offence proceedings be stayed because criminal proceedings against unknown perpetrators were pending. 21. On 7 October 2011, following a complaint that procedural errors had been committed by the Heves County Regional Police Department in the investigation of Mr J.F.’s complaint, the Gyöngyös District Public Prosecutor’s Office informed the applicant that it had opened a separate investigation into the allegations of harassment on the basis of the applicant’s complaint. 22. On 20 October 2011, in the criminal proceedings on charges of harassment, the applicant’s lawyer requested the Gyöngyös District Prosecutor’s Office to open an investigation into “violence against a member of an ethnic group” under article 174/B (1) of the Criminal Code. He maintained that the motive of the threats uttered against the applicant was her Roma origin. His allegation was supported by the fact that at the material time various paramilitary groups were “inspecting” the Roma settlement with the aim of “hindering Gypsy criminality”. 23. On 3 November 2011 the prosecutor’s office refused the request, finding that the use of force, the objective element of the criminal offence of “violence against a member of a group” under article 174/B (1) of the Criminal Code as in force at the material time could not be established at that stage of the proceedings. On 28 November 2011 the applicant reiterated her request, apparently without success. 24. The identities of the persons who had passed by the applicant’s house and that of the alleged perpetrator, Mr S.T., were established by the investigating authorities. Moreover, the Police Department questioned a number of witnesses, including the applicant’s acquaintances present during the incident, but only two of them provided statements relevant for the case. Mr S.T. refused to testify. 25. On 2 February 2012 the Gyöngyös Police Department discontinued the investigation into harassment on the grounds that none of the witnesses heard had substantiated the applicant’s allegation that she had been threatened. The Police Department noted that Mr S.T. had refused to testify and the witness testimony of Mrs I.B. had confirmed only that threats had been made, but not that they had been directed against a certain person. 26. The applicant challenged that decision, arguing that the witness testimonies had clearly stated that Mr S.T. had uttered degrading threats her. She also submitted that the investigating authorities had failed to hear Mr S.T. and two other individuals suspected of the offences. 27. On 21 March 2012 the Gyöngyös District Public Prosecutor’s Office upheld the first-instance decision. The Prosecutor’s Office found that it could not be established on the basis of the witness testimonies whether Mr S.T. had been armed and whether the threats and insults he had uttered had been directed at the applicant. Thus neither the criminal offence of harassment, nor “violence against a member of a group” could be established. This decision was served on the applicant on 2 April 2012, informing the applicant of the possibility to pursue substitute private prosecution proceedings. 28. On 1 June 2012 the applicant, acting as substitute private prosecutor, lodged an application with the Gyöngyös District Court, which was declared admissible on 13 June 2012. 29. On 6 November 2012 the criminal proceedings were discontinued since the applicant had withdrawn the charges, in her submission, because of for fear of reprisals.
| 1 |
test
|
001-145973
|
ENG
|
TUR
|
CHAMBER
| 2,014 |
CASE OF ATAYKAYA v. TURKEY
| 3 |
Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Respondent State to take measures of a general character (Article 46-2 - Legislative amendments);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award
|
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
|
5. The applicant was born in 1951 and lives in Diyarbakır. He is the father of Tarık Ataykaya, born on 25 September 1983, who died on 29 March 2006. A. Incident of 29 March 2006 6. Following the death of fourteen members of the PKK (Kurdistan Workers’ Party, an illegal armed organisation) in an armed clash on 24 March 2006, many illegal demonstrations took place in Diyarbakır between 28 and 31 March 2006, during which a number of demonstrators were killed. According to the Government, some 2,000 individuals took part in those demonstrations, in which the police headquarters was bombarded with stones, sticks and petrol bombs, with the police and their vehicles coming under attack around the city. It was reported that, during those incidents, nine people died and over 200 members of the police force and 214 higher-ranking officers, a doctor, a nurse, two journalists and an ambulance driver were wounded. Similarly, a number of offices and public buildings, including the school of medicine of Dicle University and police premises, were damaged. 7. On 29 March 2006, at around 13.30 p.m. to 2 p.m., on leaving his workplace, Tarık Ataykaya found himself in the middle of a demonstration. The Government accepted the argument that Tarık Ataykaya had not taken part in the demonstration but had just been passing by, and explained that the police had fired a large number of tear-gas grenades to disperse the demonstrators. Tarık Ataykaya was struck on the head by one of the grenades and died a few minutes later. 8. On 30 March 2006, at 11.15 a.m., an autopsy was carried out at the public hospital of Diyarbakır. The report’s conclusions read as follows: “1. Death was caused by a haemorrhage and brain damage inflicted by a firearm projectile (tear-gas grenade – gaz fişeği). 2. The characteristics of the projectile’s point of entry show that it had not been fired from a short distance ...” 9. On 3 April 2006, I.D., an eyewitness and colleague of Tarık Ataykaya, went with M.S.D., another eyewitness and colleague of the latter, to the office of the Human Rights Association in Diyarbakır. I.D. stated in particular as follows: “... On 29 March 2006, at around 1.30 p.m. to 2 p.m., we closed the workshop with Tarık Ataykaya, one of the workers, and returned home on foot. We saw tanks go past. People were very worried. Six or seven members of the security forces, armed and wearing the uniform of special teams (they were wearing special military uniforms with mixed colours, they were not ordinary policemen or soldiers), arrived. They started shooting at random. There was a great pandemonium. While we were running we heard gunfire ... We saw Tarık Ataykaya fall to the ground unconscious (the security force personnel were firing with one knee on the ground and taking aim. That means they were not firing in the air but towards people). ... I realised that [Tarık Ataykaya] was wounded in the head. M.S.D. also realised this. We carried Tarık Ataykaya to an empty space near a building and called an ambulance ...” 10. Following a request by the Diyarbakır public prosecutor’s office on 4 April 2006, a forensic report was drawn up on 12 April 2006 by the presidency of the criminal investigation department’s forensic laboratories attached to the Diyarbakır police headquarters. It showed that the object extracted from Tarık Ataykaya’s head was a plastic cartridge (muhimmat) from a tear-gas grenade of type no. 12. The report also stated that the cartridge did not bear any characteristic markings from which the firearm in question could have been identified. B. Administrative and criminal investigations 1. The applicant’s complaint 11. On 19 April 2006 the applicant filed a criminal complaint. Referring to the statements of I.D. and M.S.D. to the Human Rights Association in Diyarbakır (see paragraph 9 above), he asked the public prosecutor of Diyarbakır to identify the police officer who had fired at his son and to bring criminal proceedings against him for murder. He also asked that the object extracted from the deceased’s head be examined by a panel of experts from the forensic institute. 2. Attempts by the public prosecutor’s office to determine the identity and number of members of the security forces authorised to use grenade launchers 12. On 3 May 2006 the Diyarbakır public prosecutor’s office responsible for investigating organised crime declined jurisdiction to examine the case. It stated, inter alia, as follows: “... the autopsy carried out on the deceased showed that death had been caused by a cartridge striking [the deceased’s head]. [Subsequently], the forensic report established that this cartridge came from a tear-gas grenade of type no. 12, a type used by the security forces ... Consequently, the investigation must be carried out by the public prosecutor [responsible for investigating ordinary crimes].” 13. On 23 May 2006 the public prosecutor of Diyarbakır dealing with the case, following the decision to decline jurisdiction on 3 May 2006, sent a letter to the Diyarbakır police headquarters. He asked for information on the police units which had been equipped with tear-gas grenade launchers during the incident of 29 March 2006 and for the identification numbers of the personnel who had used them. However, it can be seen from the answers given by the Diyarbakır police headquarters, as summarised below, that it was not possible to establish with certainty the identity or number of all the members of the security forces who had been authorised to use that type of weapon. 14. First, in June 2006, the Diyarbakır police informed the Diyarbakır public prosecutor that during the incident in question three police officers from the special forces (özel harekat), whose identification numbers were indicated in the letter, had used grenade launchers in order, according to them, to disperse demonstrators who had been throwing stones and petrol bombs at the security forces. 15. In a letter of 13 July 2006 the head of the Anti-Terrorist Branch of the Diyarbakır police informed the Diyarbakır public prosecutor that it had not been possible to identify the individuals responsible for the death of Tarık Ataykaya. 16. On 30 October 2006 the Diyarbakır public prosecutor asked the Diyarbakır police headquarters to inform him of the positions to which the three police officers concerned had been assigned on the date of the incident in question. 17. On 1 December 2006 a document concerning the assignment of the three police officers was added to the file. It showed that these officers had been assigned to various zones during the incident. 18. In a letter of 10 April 2007, the head of the Anti-Terrorist Branch of the Diyarbakır police in turn informed the Diyarbakır public prosecutor’s office that twelve tear-gas grenade launchers had been listed in the names of twelve officers of the special forces, that those officers had not been posted to Goral avenue (near the site of the incident) and that, in the course of the incident, those teams had been assigned to various zones on the instructions of the police chiefs. In addition, it stated that eleven other police officers of the Rapid Response Force (çevik kuvvet) had used grenade launchers and that they had been assigned to different zones during the incident. He lastly concluded that grenade launchers had been used by a total of twenty-three police officers attached to the Anti-Terrorist Branch. 3. Testimony obtained by the public prosecutor’s office 19. On 1 November 2006 the applicant was heard by the public prosecutor’s office. He requested the identification and punishment of those responsible for his son’s death. 20. On 14 February 2007, B.A., one of the three police officers whose identification numbers had been communicated previously (see paragraph 14 above), gave evidence to the public prosecutor’s office. He stated that, on the day of the incident, some 500 police officers and soldiers had used tear-gas grenade launchers and that, if Tarık Ataykaya had died as a result of a tear-gas grenade fired by the security forces, any one of those 500 police officers and soldiers could have fired it. He added that, during the incident, some 4,000 to 5,000 tear-gas grenades had been used by police officers from the special forces in order to disperse the demonstrators. 21. On 5 November 2007 the applicant was again heard by the public prosecutor’s office. He repeated his request for the identification and punishment of those responsible for his son’s death. 22. On 15 November 2007, I.D., an eyewitness and a colleague of Tarık Ataykaya, gave evidence to the public prosecutor’s office. He stated in particular as follows: “... On 29 March 2006 we were working with Tarık Ataykaya in the joinery workshop on Medine boulevard in Bağlar. Around noon, a large crowd had gathered on Medine boulevard because of the demonstrations ... We had to close the workshop. There were about 50-60 demonstrators and 5-6 police officers, wearing camouflage clothing and balaclavas. As we were locking up the workshop, I saw that masked policemen, with one knee on the ground (yere diz çökerek), were firing guns unremittingly towards the demonstrators. Tarık Ataykaya was with us. He did not take part in the demonstrations. After leaving the workshop Tarık Ataykaya went back there because the demonstrators were heading towards us. [At that moment], Tarık Ataykaya, hit by a bullet fired by one of the policemen, fell to the ground, which means that he was shot by police gunfire. Supporting him, we took him to an empty space near a building and called an ambulance. Tarık Ataykaya had been struck on the head and small pieces of his brain had come out. We took Tarık Ataykaya to hospital with a pick-up truck as there was no sign of the ambulance. As the policemen were masked, I am unable to identify them.” I.D. added that, on the day of the incident, some of his friends had said that they had seen footage of the incident, probably on the private television channel NTV. 23. On the same day, M.S.D., an eyewitness and colleague of Tarık Ataykaya, also gave evidence to the public prosecutor’s office. He confirmed I.D.’s statements. 24. Also on 15 November 2007, R.K., a resident of the district where the incident had taken place was interviewed by the Diyarbakır public prosecutor’s office. She stated in particular: “... on 29 March 2006, at my home on Medine boulevard, I was waiting for my son to come home from school. It was about 1 p.m. The demonstrations had begun in the streets. My son was late and I went to look for him on Medine boulevard. I saw my son coming back from school. Tarık Ataykaya, with three of his colleagues, had closed the workshop and I think he was on his way home. The street was full of people. The policemen were advancing in our direction. They were firing their guns continuously towards the demonstrators. When I got home with my son, I saw that a masked policeman, with one knee on the ground, was firing towards Tarık Ataykaya, who had his back to the policeman. I saw Tarık Ataykaya fall to the ground. He was carried to the door of a building. An ambulance was called. When I checked Tarık Ataykaya’s heart, I realised that he was dead. The policemen who had come towards us were masked, so I would not be able to identify them. As my attention was totally focussed on Tarık Ataykaya, I did not see what the policeman was doing. The individuals present during the incident were I.D. and M.S.D. ...” 25. On 21 January 2008 the Diyarbakır public prosecutor asked the Ankara public prosecutor’s office to take testimony from police officers N.O. and H.A., to establish whether they had been present on Medine boulevard or Goral avenue during the incident. 26. On 18 February 2008 N.O. and H.A. were interviewed by the public prosecutor’s office. They stated that they had not been assigned to those two places at the time the incident had taken place and had not witnessed it. 4. Administrative investigation 27. In the meantime, in a letter of 2 November 2007, the public prosecutor asked the Diyarbakır provincial governor’s office to open an administrative investigation and to transmit the relevant file to the public prosecutor’s office. He pointed out that in the context of that investigation it would be appropriate to take statements from the eleven police officers of the Rapid Response Force and the three police officers of the special forces. 28. It can be seen from the file that an administrative investigation was opened by the Diyarbakır provincial governor’s office in order to determine the responsibility of fourteen police officers in the incident. Following that investigation, on 30 January 2008, the police disciplinary board of the provincial governor’s office made up of the governor, the head of the health department and three police superintendents, decided not to impose any sanction on the police officers who had used tear gas during the demonstration of 29 March 2006. The board made the following observations in particular: “... It is appropriate to close the case having regard [to the following points:] it was a major incident. According to the witness statements, the face of the officer who fired the tear-gas grenade which caused the death of the deceased was not visible because he was wearing a balaclava. All officers have undergone training in which they learned that the firing [of grenades] must be carried out in such a way as not to hit the target directly. There is no document, evidence, sign or circumstantial evidence (emare) from which it could be established that the officers under investigation committed the offence in question ...” 5. Permanent search notice 29. On 3 April 2008 the Diyarbakır public prosecutor’s office issued a permanent search notice for the purposes of tracing the person who fired the grenade in question, with effect until 29 March 2021, when the offence would become time-barred. Referring, inter alia, to the decision taken by the police disciplinary board to close the case, it found in particular as follows: “... The autopsy carried out on 30 March 2006 showed that the death was caused by a tear-gas grenade of type no. 12 which struck [the deceased’s head] ... This projectile was used by the forces on duty at the time of the incident ... ... Under Article 6 appended to Law no. 2559 on the duties and powers of the police, the police are entitled to use physical force, material force and weapons in order to immobilise offenders, in a gradual manner and in proportion to the particularities and degree of resistance and aggressiveness of the offender. In those circumstances, it will be for the superior to determine the degree of force to be used ... [Moreover], under Article 24 of the Criminal Code, a person who complies with statutory obligations cannot be punished and a person who obeys an order given by a competent authority in the exercise of its power cannot be held responsible for his action. In the registers of the security forces, there is no information concerning the manner in which the death occurred. ... The deceased Tarık Ataykaya found himself among the demonstrators during the social demonstrations which took place on 29 March 2006 in the centre of Diyarbakır, either because he was taking part in those demonstrations or because he had just left the workshop where he was working. During the incidents, demonstrators were clashing with the police and throwing sticks and stones. The police intervened against the demonstrators using tear-gas grenades and rubber bullets. The casing of a tear-gas grenade thrown against the moving demonstrators struck the head [of Tarık Ataykaya] and caused his death. This incident is not mentioned in the police documents. The witnesses to the incident stated that they could not identify the person who had fired it because his face was masked. It was not possible to determine which weapon had been used. The casing did not bear any characteristic mark of the weapon from which it was fired. Even though there is no tangible evidence to show that the person who fired was definitely a police officer, as no register suggested that other armed individuals had used tear-gas grenades [it can be concluded that] this grenade was probably used by the security forces which were operating at that time. [However,] it is not possible to identify the perpetrator, whether from the autopsy report, the statements of the complainant and witnesses, the forensic report or the case file as a whole ...” This decision was notified to the applicant on 17 April 2008.
| 1 |
test
|
001-171319
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,017 |
OPREA v. ROMANIA
| 4 |
Inadmissible
|
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
1. The applicant, Mr Constantin Oprea, is a Romanian national, who was born in 1958 and lives in Bucharest. He was represented before the Court by Mr M.A. Tănăsescu, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 4 March 2006, a dispute took place between the applicant and a neighbour regarding car parking. It happened in front of the building where they lived. The applicant alleged that B.C. hit him several times on the head and face with a solid object, leaving him unconscious for a few moments. 5. Helped by his son and wife, he returned to his house and immediately called the police. 6. The police officers, who immediately arrived on the scene, imposed a fine on both him and his neighbour for a public order infraction. 7. The infraction fine (proces-verbal de contravenţie) stated that it had been acknowledged by both parties involved in the incident that there had been a physical altercation between them. It had also mentioned that the applicant and B.C. had been advised to present themselves for a medical examination by the Bucharest forensic office. 8. The same day, after the police left, the applicant went to the closest hospital, Sfântu Ioan Emergency Hospital, for medical care. 9. On the medical certificate issued on 14 March 2006 by the Mina Minovici National Forensic Institute, it was mentioned that the applicant presented with traumatic cuts and bruising that could have been caused by repeated blows from a hard object on 4 March 2006. According to the same certificate, the applicant needed at least seven to eight days of medical care to recover. 10. The applicant lodged a criminal complaint against his aggressor for the offence of bodily harm under Article 180 § 2 of the Criminal Code. In turn, the defendant lodged a criminal complaint against the applicant for intimidation, insult and defamation. The two files were joined and examined together. Both parties to the criminal trial also joined a civil complaint to the criminal one. Sfântu Ioan Emergency Hospital also lodged a civil claim. 11. The Bucharest District Court heard evidence from five witnesses proposed by the parties. None of the witnesses had been present at the incident of 4 March 2006 and consequently they stated that they were not aware of any physical altercation between the applicant and B.C. 12. By a judgment of 25 January 2007, the Bucharest District Court acquitted both defendants and dismissed the joint civil actions. The defendant indicated by the applicant in the criminal complaint was acquitted on the grounds that the applicant had not proved that he had caused the injuries. 13. The applicant appealed. He argued that the court of first instance had failed to investigate how the injuries attested by the medical certificate had been caused. He also claimed that the only eyewitness to the incident, O.M.M., although admitted as a witness and summoned by the court of first instance, had not had an opportunity to give evidence. The applicant did not indicate why this witness had not been heard. 14. By a decision of 27 April 2007 the Bucharest County Court dismissed the applicant’s appeal on points of law upholding the decision of 25 January 2007 on the grounds that the simple submission of a medical certificate to the court does not prove the guilt of t.e defendant. 15. The provisions of the Criminal Code, as in force on the date the offence was allegedly committed, defining bodily harm, read as follows: “Violence causing physical injuries needing medical care of up to twenty days for recovery is punishable by imprisonment of between three months and two years, or by a fine.”
| 0 |
test
|
001-150313
|
ENG
|
RUS
|
CHAMBER
| 2,015 |
CASE OF LOLAYEV v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
|
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
|
5. The applicant was born in 1978 and lives in Vladikavkaz. 6. The applicant was a police officer at the Office of the Interior of the Iristonskiy District of Vladikavkaz (“the police station”) until 2005. 7. Between 25 and 27 February 2008 a submachine gun disappeared from the police station. The police officers noticed it was missing on 27 February 2008. 8. According to the applicant, on 28 February 2008, in the evening, police officers delivered him to the police station. There they handcuffed him to a chair and ill-treated him overnight, beating him on the back and head and pressing bare electric wires against his ears to make him confess to the theft of the sub-machine gun. He was released from the police station before noon on 29 February 2008. 9. On 3 March 2008 the applicant underwent a medical forensic examination. Forensic report no. 521 attested that he had concussion, abrasions on his head which could have been inflicted by hard blunt objects, areas of pigmentation on his earlobes resulting from healing abrasions which could have been inflicted as a result of the application of low-frequency electrical current, and areas of pigmentation on his lower arms which could have been caused by hard blunt objects, possibly handcuffs. The report stated that the aforementioned injuries could have been inflicted within the period, and in the circumstances, described by the applicant. 10. On 3 March 2008 the applicant complained about the events of 2829 February 2008 to the prosecutor’s office of the Republic of North Ossetia-Alania. The latter referred his complaints to the prosecutor’s office of the Pravoberezhniy District of Vladikavkaz and to the prosecutor’s office of the Iristonskiy District of Vladikavkaz for inquiry, in letters of 6 and 12 March 2008 respectively. The latter prosecutor’s office further transmitted the applicant’s complaint to the Vladikavkaz Investigation Department on 18 March 2008. 11. On 4 April 2008 the Vladikavkaz Investigation Department refused to institute criminal proceedings in connection with the applicant’s allegations. The decision stated that according to the applicant, at 9.15 p.m. on 28 February 2008 he received a phone call from a former colleague at the police station, Ms P., who told him that another former colleague from the same police station, Officer K., had some problems. Ms P. asked the applicant to call Officer K. The applicant called Officer K. The latter said that he had problems and asked the applicant to join him in Officer K.’s car, parked outside the applicant’s house, to go to South Ossetia. Officer K. also asked the applicant to take his passport with him. The applicant went outside and joined Officer K. and another man in camouflage uniform in a silver grey Niva-Chevrolet car. The applicant sat in the back seat and they drove off. As they were driving, Officer K. told the applicant that when he started his duty shift he had signed an entry in the register confirming that he had been issued with a sub-machine gun, but this had not actually been the case, as the gun had not been found. Officer K. asked the applicant to go with him to South Ossetia until everything had “cleared up”. Then Officer K. and the other man began contending that it was the applicant who had taken the sub-machine gun, because on the day the sub-machine gun had gone missing he had been at the police station; this was recorded on CCTV. The applicant protested against these allegations, and the man in the camouflage uniform started beating him, while Officer K. pretended to try to separate them. Then they drove to the town centre, stopped at the police station, and the man in the camouflage uniform left. Soon Officer G., the deputy head of criminal investigations and the applicant’s former colleague, came out of the police station. The applicant expressed indignation about the police officers’ allegations and assault. Officer G. replied that he did not suspect the applicant, but asked him to help them if he could. The applicant said that he could not help them. Then Officer G. left and Officer S. came out of the police station and told the applicant that Mr A.L., the applicant’s cousin, would soon arrive. Mr A.L. arrived shortly afterwards, accompanied by officers of the police special unit (SOBR) and asked the applicant to help Officer K. because he was a close friend. The applicant responded that there were no grounds to suspect him and that he did not wish to continue this conversation. Officer S. then said that they had a video recording, and the applicant asked to see it. They went together to the office of the head of criminal investigations on the second floor of the police station, where Officer Z. showed the applicant a recording of him entering and leaving the police station. The applicant explained that during his entire visit to the police station he had been accompanied by police officers. After they left that office Officer S., Mr A.L., and another man, X., whom the applicant did not know, took him to Officer S.’s office, where Mr A.L. again urged him to confess to stealing the sub-machine gun. Then they took him to a different office, where Officers K., D., Kas. and X. handcuffed him to a chair, taped his mouth, put wires against his ears and passed electric current through them. The applicant fell off the chair several times but they put him back and sent the current through the wires to his ears again. He managed to get rid of the tape and spit out the blood that had collected in his mouth. Officer K. started yelling at him, saying that he would receive no pity as the “minister” had personally ordered that he should be “locked up”. The applicant then realised that he would not be able to endure the torture and offered to confess in writing that he had thrown the sub-machine gun into the river. However, they were unhappy with this suggestion. Then they took him to Officer K.’s office, where he and Officers D. and X. remained until 11 or 11.30 a.m. on 29 February 2008, when they let him go. 12. The decision further quoted forensic report no. 521 (see paragraph 9 above) and statements by police officers. In particular, Officer Kas. stated that he knew the applicant, as he had worked at the police station until 2005. On 27 February 2008 they had realised that a sub-machine gun was missing. Officer M. had seen it last when he was on duty; he was subsequently dismissed from the police for its loss. When they tried to establish what had happened, they watched the CCTV records since 25 February 2008, this being the likely date of the sub-machine gun’s disappearance. The recording showed the applicant entering the police station; in the film of him leaving he seemed to be holding an unidentified object under his jacket. As the applicant often visited the police station and went into its offices, including the office from which the sub-machine gun might have gone missing, it was decided to invite the applicant, show the recording to him, and ask him to return the weapon. Officer K., a relative of the applicant, was instructed to invite him. On the date in question Officer Kas. saw Officer K. and the applicant in the police station. The applicant did not have any visible injuries, seemed to be in a good mood and asked him how he was doing. An hour later he saw the applicant leaving the police station. Neither he nor any other police officers applied physical force to the applicant. However, Officer Kas. still suspected the applicant of stealing the sub-machine gun and believed that his allegations were an attempt to undermine any possible prosecution for the theft of the weapon. Officer Kas. believed that the applicant had caused the injuries stated in forensic report no. 521 himself, in order to corroborate his submissions. 13. Officer K. stated that he was a distant relative of the applicant. He then corroborated Officer Kas.’s statement concerning the loss of the sub-machine gun, and added that with the help of Ms P. he had contacted the applicant and arranged a meeting with him near his home. Officer K. went there by car alone and, when the applicant joined him, explained the situation to him and asked him to return the sub-machine gun, as otherwise Officer K. and his colleagues would have a lot of problems. The applicant denied being involved in the theft of the weapon, and agreed to go to the police station. On arrival they met Officer G., who also suggested that the applicant return the sub-machine gun. The applicant reiterated that he had nothing to do with its loss. Then Officer K. took him to the office of the head of criminal investigations and left him there with Officer Z. In an hour or an hour and a half he saw the applicant leaving the police station; he was sitting on a bench nearby with Officer Kas. He had not seen the applicant since. From Officer Z. he knew that the latter had shown the applicant the video recording and had asked him to return the sub-machine gun, but nobody had used physical force against him. Officer K. had no idea how the applicant had sustained the injuries or why he had accused the police officers of causing them; he maintained that those allegations were false. 14. Officer S. corroborated Officers Kas.’s and K.’s statements concerning the loss of the sub-machine gun, and added that on the day in question he had seen the applicant and Officer K. on the second floor of the police station. He had asked the applicant to return the sub-machine gun, explaining that otherwise the police officers would be in serious trouble. However, the applicant denied being involved in its disappearance. Then Officer S. left and went to the first floor. He did not know where the applicant had gone afterwards but he saw no injuries on him. Officer S. did not know how the applicant had sustained the injuries described in forensic report no. 521, as no one in the police station had either ill-treated or insulted him. Officer S. believed that the applicant’s allegations were intended to discredit his former colleagues. 15. Officer D. corroborated the statements of Officers Kas., K. and S. concerning the disappearance of the sub-machine gun, and added that on the date in question, when he left the police station on finishing work and was walking towards his car parked nearby, he had seen Officer K. and the applicant entering the police station. He had not spoken to the applicant and had only seen him from a distance. Officer D. had then gone home. He did not know how the applicant could have sustained the injuries stated in forensic report no. 521, as neither Officer D. nor other police officers had ill-treated him. 16. Officer G. corroborated the statements of Officers Kas., K., S. and D. concerning the disappearance of the sub-machine gun, and added that on the day in question, when he left the police station, he had seen the applicant and Officer K. nearby. They were talking peaceably and he did not see any injuries on the applicant’s head or body. Officer G. approached them and told the applicant that there were grounds to believe that he had stolen the sub-machine gun and that he must return it. The applicant responded that he had nothing to do with its disappearance. The applicant did not make any complaints concerning the police officers. Officer G. had not seen the applicant since, and believed that his allegations were an attempt to avoid prosecution for the theft of the weapon. 17. The decision concluded that, as a result of the inquiry conducted, the applicant’s allegations were not corroborated, and it was doubtful whether he had received the injuries described in forensic report no. 521 in the circumstances described by him. Accordingly, the actions of the police officers disclosed no evidence of a criminal offence. 18. A copy of the decision was sent to the applicant on the same date. 19. On 5 June 2008, following a complaint lodged by the applicant, a senior investigator of the Vladikavkaz Investigation Department set aside the decision of 4 April 2008 as premature, because a number of investigative steps had not been taken. In particular, the investigators were instructed to question the applicant and the police officers who had been on duty on the relevant date, to inspect, in the presence of the applicant, the office where he had allegedly been ill-treated, and to take other investigative measures if they appeared necessary. 20. A copy of the decision was sent to the applicant on the same date. 21. On 15 June 2008 the Vladikavkaz Investigation Department again refused to institute criminal proceedings in connection with the applicant’s allegations. The decision reproduced verbatim the decision of 4 April 2008, with the addition of one paragraph. The paragraph concerned the questioning of Officer M., who had served at the police station since 2005. He submitted that he knew the applicant and that the latter frequently came to the police station to see his former colleagues. However, because of the time which had elapsed since then he could not remember whether he had seen the applicant at the end of February 2008, and had no information about whether the applicant had been forcibly held at the police station between 28 and 29 February 2008. 22. On 16 June 2008 a copy of the decision was sent to the applicant, who complained about the decision to the Office of the Prosecutor General. That complaint was subsequently forwarded to the Prosecutor’s Office of the Iristonskiy District of Vladikavkaz. 23. On 6 August 2008 the Iristonskiy District Prosecutor’s Office allowed the applicant’s complaint, found the decision of 15 June 2008 ungrounded, and forwarded the materials concerning the complaint to the Vladikavkaz Investigation Department for it to set aside that decision. 24. On 9 October 2008 a senior investigator of the Vladikavkaz Investigation Department set aside the decision of 15 June 2008 as premature and superficial as, in particular, the circumstances in which the applicant had sustained the injuries had not been established. The investigators were instructed to (i) establish the circumstances in which the injuries had been caused; (ii) inspect in the presence of the applicant the office where he had allegedly been ill-treated; (iii) question Officer Mir.; (iv) question Officer Z.; (v) question Mr A.L.; (vi) add to the case file materials relating to criminal proceedings instituted in connection with the disappearance of the weapon from the police station; and (vii) take other investigative measures if they appeared necessary. 25. On 20 October 2008 the Vladikavkaz Investigation Department again refused to institute criminal proceedings in connection with the applicant’s allegations. The decision reproduced verbatim the decision of 15 June 2008, with the addition of two paragraphs setting out the submissions of Officers Mir. and Z. Officer Mir. stated, in particular, that at 8.30 a.m. on 28 February 2008 he had started his 24-hour duty shift at the police station. Because of the time that had passed since then, he could not remember whether the applicant had been delivered to the station during his duty hours, but he was positive that nobody had used physical force on him. Officer Z. stated that after the official weapon had gone missing from the police station it had appeared possible that the applicant had been involved in its theft, as he had been recorded leaving the police station with his arm pressed against his body. When the applicant was asked why he had held his arm in such a way he responded that that was how he walked. However, it was clear to Officer Z. that he was lying. He was then asked to tell everything he knew about the weapon’s disappearance, but he said he knew nothing and left the office. No one either threatened the applicant or applied physical force to him. 26. The applicant was informed of the decision by a letter sent on the same date. 27. On 19 March 2009, following a complaint lodged by the applicant, a senior investigator of the Vladikavkaz Investigation Department set aside the decision of 20 October 2008 as superficial since (i) the circumstances in which the applicant had sustained the injuries had not been established; (ii) neither the applicant nor Mr A.L. had been questioned; and (iii) materials concerning criminal proceedings instituted in connection with the disappearance of the weapon from the police station had not been added to the case file. The investigators were instructed to rectify the above shortcomings. 28. The applicant was informed of the decision by a letter sent on the same date. 29. On 30 March 2009 the Vladikavkaz Investigation Department again refused to institute criminal proceedings in connection with the applicant’s allegations. A copy of that decision has not been provided to the Court. 30. The applicant was informed of this decision by a letter sent on the same date. 31. On 31 May 2010, following a complaint lodged by the applicant, a senior investigator of the Vladikavkaz Investigation Department set aside the decision of 30 March 2009, on the ground that the investigators had failed to rectify the shortcomings indicated in the decision of 19 March 2009. They were instructed to (i) enclose in the case file materials concerning criminal proceedings instituted in connection with the disappearance of the weapon from the police station; (ii) establish the applicant’s whereabouts and question him in relation to the injuries sustained; (iii) establish the whereabouts of Mr A.L. and question him with respect to his meeting with the applicant at the police station; (iv) carry out a forensic medical examination of the applicant with a view to establishing how the injuries had been caused; and (v) take other investigative measures if they appeared necessary. 32. The applicant was informed of the decision by a letter sent on the same date. 33. On 25 June 2010 another forensic examination was conducted, apparently on the basis of the materials in the case file. Forensic report no. 98 stated that the applicant had concussion and abrasions on his head which could have been inflicted by hard blunt objects, possibly on 29 February 2008. He also had a scar on his tongue formed as a result of a healed wound, and pink pigmentation of skin on his earlobes and on his right lower arm. On the basis of the materials available it was not possible to determine either when and how those injuries had been caused, or their gravity. 34. On 30 June 2010 the Vladikavkaz Investigation Department once again refused to institute criminal proceedings in respect of the applicant’s allegations. The decision reproduced verbatim the decision of 20 October 2008, with an additional paragraph describing forensic report no. 98 of 25 June 2010. 35. A copy of the decision was sent to the applicant on the same date. 36. It appears that the decision of 30 June 2010 was again set aside by a senior investigator of the Vladikavkaz Investigation Department. 37. On 16 May 2011, after the Court had communicated the application to the respondent Government, the Iristonskiy Inter-District Investigation Department of Vladikavkaz instituted criminal proceedings against Officers K., Kas. and D. on account of the applicant’s ill-treatment. 38. On 7 June 2011 the applicant was granted victim status in the proceedings. 39. In a letter of 3 October 2011 the Prosecutor’s Office of the Republic of North Ossetia-Alania informed the applicant that a number of investigative steps had been taken in his case. They included confrontations between the applicant and Officers K., Kas. and D.; identification of the fourth suspect on the basis of photographs; and inspection of the crime scene in the presence of the applicant. 40. On 31 October 2011 the applicant lodged a complaint under Article 125 of the Code of Criminal Procedure with the Leninskiy District Court of Vladikavkaz. He alleged, in particular, that, whereas he had indeed taken part in the confrontations with Officers Kas., D. and K. in September 2011, he had not taken part in the inspection of the crime scene, which had apparently been conducted later, or in the identification of the fourth suspect on the basis of photographs; and that his signature on the records of these investigative actions had been forged. The applicant made a number of other complaints concerning the progress of the investigation. 41. On 2 November 2011 the Leninskiy District Court returned the complaint unexamined, on the ground that the applicant had failed to specify the actions or omissions of the investigators that he was seeking to have declared unlawful. The applicant was advised that he could resubmit his complaint after it had been rectified. 42. Between 10 and 11.35 a.m. on 13 November 2011 the investigating authorities conducted a confrontation between the applicant and Mr E.L., a relative of both the applicant and Officer K. They were questioned about the events of 28-29 February 2008. The applicant reiterated his account of the events. Mr E.L. stated that during the evening of 28 February 2008 Officer K. had called him and asked to meet him. They met at a supermarket, where Officer K. told him that the applicant was suspected of stealing a submachine gun from the police station, and asked him to talk to the applicant. Mr E.L. agreed. On the same date he arrived at the police station and entered an office: he could not remember exactly which one because of the time that had passed since the events. In the office he was left alone with the applicant. When Mr E.L. asked the applicant about the sub-machine gun, the latter replied in a rude manner. Mr E.L. then pushed him and said that that was no way to talk to a relative. The applicant hit Mr E.L. back and this started a fight. Then Officers K. and Dz. appeared and separated them. The applicant said that he would complain about what had happened, and Mr E.L. left. He had not spoken to the applicant since. On 12 October 2011 he met Officer K., who reminded him of those events and said that criminal proceedings had been instituted against him and other police officers in this respect. As Mr E.L. thus became aware that police officers “were suffering” because of injuries he had caused the applicant, he decided to go to the police station and confess. Mr E.L. added that he had not told his relatives about the events of 28 February 2008, so as not to upset them. The applicant contested Mr E.L.’s submissions and insisted on his account of the events. He said that he had no idea why Mr E.L. had contended that he had caused him injuries. 43. The investigator noted that, apart from the concussion and abrasions on the head, according to forensic report no. 98 of 25 June 2010 the applicant also had a scar on his tongue and pink pigmentation of skin on his earlobes and on the right lower arm, and asked Mr E.L. for clarification in this respect. Mr E.L. replied that in the course of the fight he had hit the applicant on the head and face and other places, and that therefore the concussion and the abrasions on the head had most likely been caused by his blows. However, Mr E.L. could provide no information with respect to the scar on the applicant’s tongue and the pigmentation of his skin. 44. Between 1 p.m. and 2.45 p.m. on 13 November 2011 the investigating authorities conducted a confrontation between the applicant and Officer Dz. who served at the police station. They were also questioned about the events of 28-29 February 2008. The applicant reiterated his account of the events. Officer Dz. submitted that on 27 February 2008, after it had been established that a sub-machine gun had gone missing and the recording of the applicant leaving the police station had been found on the CCTV, Officer K. was instructed to invite the applicant to the police station and to ask him to return the weapon. On the date in question Officer Dz. saw Officer K. and the applicant at the police station. The applicant seemed to be in a good mood and did not have any injuries. Officer Dz. was aware that Officer K. had also told Mr E.L., the applicant’s relative, that the applicant was suspected of stealing the sub-machine gun, and asked him to come to the police station to talk to the applicant. Mr E.L. arrived at the police station on the same date, and was alone with the applicant in an office for some time, while Officers Dz. and K. stood outside in the corridor. Officer Dz. could not remember exactly which office that was. When they heard noise and the sound of a quarrel in the office, they entered it and saw the applicant and Mr E.L. fighting. When Officers Dz. and K. separated them, the applicant said that he would complain about this. Officer Dz. then left and had not seen the applicant since. In his view, the applicant alleged that he had been beaten by the police officers because Mr E.L. was his relative. He contended that the police officers had not caused any injuries to the applicant. The applicant contested Officer Dz.’s submissions and insisted on his own account of the events. He emphasised that Mr E.L. had not caused the injuries. 45. On 19 February 2012 the criminal proceedings were discontinued on the ground that the actions of Officers K., Kas. and D. disclosed no evidence of a criminal offence. 46. The applicant complained to the Investigating Committee of the Republic of North Ossetia-Alania of a number of breaches in the conduct of the investigation. 47. On 6 April 2012 the Investigating Committee of the Republic of North Ossetia-Alania dismissed his complaint, stating that all the investigative steps had been taken in accordance with the laws on criminal procedure. 48. On an unspecified date after 27 February 2008 a criminal investigation was instituted in connection with the alleged theft of the submachine gun from the police station by an unidentified person. 49. On 24 August 2008 the investigation was suspended on the ground that the person to be charged with the offence could not be identified. 50. According to the applicant, since the events of 28-29 February 2008 the police officers have continued to put pressure on him. In particular, they followed his movements, called him by telephone and tapped his conversations, and visited him at home, interrogating his friends, acquaintances and neighbours about him. Because of this pressure, in September 2010 he had had to close the grocery/delicatessen that he had been running for several years. Furthermore, in the applicant’s submission, he was unable to vote in the election of the Russian President held on 2 March 2008 as a result of that persecution, as he was afraid to leave his home. 51. The applicant submitted a number of complaints to the prosecuting authorities in this respect. They appear to have been dismissed.
| 1 |
test
|
001-144114
|
ENG
|
FIN
|
CHAMBER
| 2,014 |
CASE OF GLANTZ v. FINLAND
| 4 |
Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice)
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
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5. The applicant was born in 1957 and lives in Klaukkala. 6. The tax inspector conducted a tax inspection of the applicant’s attorney’s office in 2006. 7. On 18 and 19 December 2006 the tax authorities considered that the applicant had received disguised dividends from his company during the tax years 2000 to 2004. The amounts of the disguised dividends were the following: 107,152 euros (EUR), EUR 1,673, EUR 48,711, EUR 32,759, and EUR 18,842. Additional taxes and tax surcharges (veronkorotus, skatteförhöjning) were imposed in the amount of EUR 5,300, EUR 84.09, EUR 2,400, EUR 1,600 and EUR 900 respectively. 8. By letter dated 9 March 2007 the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden). 9. On 30 May 2007 the Tax Rectification Committee rejected the applicant’s requests. It found that the applicant had given incomplete information to taxation authorities and tax had therefore been incompletely or partially levied. Therefore the additional tax and the tax surcharges imposed on him were not considered to be too high. 10. By letter dated 11 June 2007 the applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen). 11. On 22 December 2008 the Helsinki Administrative Court rejected the applicant’s appeal on the same grounds as the Tax Rectification Committee. 12. By letter dated 27 February 2009 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). 13. On 11 January 2010 the Supreme Administrative Court refused the applicant leave to appeal. 14. On 15 December 2008 the public prosecutor brought charges against the applicant on, inter alia, five counts of embezzlement and two counts of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning the tax years 1997 to 2003. According to the charges, the applicant was accused of aggravated tax fraud as, in his personal capacity, he had underdeclared his income. The undeclared income amounted in total to EUR 500,895 and, consequently, the tax imposed had been EUR 263,711.68 too low. 15. On 6 November 2009 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant, inter alia, on four counts of embezzlement and two counts of aggravated tax fraud and sentenced him to a prison sentence of 2 years and 8 months. He was also ordered to pay the taxation authority EUR 214,168.38 plus interest. 16. By letter dated 25 January 2010 the applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten), requesting that the charges be dismissed. He claimed, inter alia, that one of the embezzlement charges was statute-barred. 17. On 23 December 2010 the Helsinki Appeal Court, after having held an oral hearing on 28 and 29 October 2010, convicted the applicant as charged and sentenced him to 2 years and 8 months in prison. It upheld the District Court’s judgment in respect of the compensation award. The court found that one of the embezzlement charges was not statutebarred. As concerned the aggravated tax fraud in the applicant’s personal taxation, the court noted that tax surcharges had been imposed on the applicant and that the taxation proceedings had become final on 11 January 2010. As the charges had been brought on 20 August 2009, that was, before the taxation proceedings had become final, there were no obstacles to examining the charge concerning aggravated tax fraud. 18. By letter dated 21 February 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that the charges be dismissed. He claimed that there had been a lack of a fair trial and a violation of the legality principle in respect of the embezzlement charges as he had been convicted of something other than the charges against him and the conviction had been based on a wrong Penal Code provision. Also one of the changes had been statute-barred. As concerned the tax fraud charges, he claimed that the ne bis in idem principle had been violated when he was convicted of aggravated tax fraud in respect of his personal taxation. That principle and the legality principle had also been violated when he was convicted of aggravated tax fraud and bookkeeping crime as a representative of the company as the undeclared income was the same as in his personal taxation. He also claimed that there had been a lack of a fair trial before the Appeal Court as he was not allowed to obtain detailed information about the charges and to put questions to one of the witnesses. 19. On 18 May 2011 the Supreme Court refused the applicant leave to appeal. 20. By letter dated 6 June 2011 the applicant lodged an application for an extraordinary appeal with the Supreme Court, requesting, inter alia, that the execution of the prison sentence be stayed. He repeated this request on 10 July 2011, and on 24 and 29 August 2011. 21. On 15 June, and 17, 25 and 30 August 2011 the Supreme Court refused to grant a stay of execution. 22. On 31 August 2011 the applicant started serving his sentence. 23. On 12 December 2011 the Supreme Court refused the applicant’s request for the reopening of the case. 24. By letter dated 16 December 2011 the applicant lodged a new extraordinary appeal with the Supreme Court concerning its decision of 12 December 2011. He referred, inter alia, to Article 6 of the Convention and the lack of a fair trial. 25. It is not known whether the case is still pending before the Supreme Court. 26. By letters dated 24 and 29 August 2011 and 7 February 2012 the applicant lodged a complaint with the Chancellor of Justice (oikeuskansleri, justitiekanslern), asking him to examine whether the Supreme Court justices had acted in accordance with the law and their duties when rendering the decision of 12 December 2011. 27. On 20 March 2012 the Chancellor of Justice informed the applicant that he was not going to investigate the matter as it was still pending before the Supreme Court. However, he indicated that the general interpretation was that the duty to give reasons did not apply to decisions concerning leave to appeal or extraordinary remedies. 28. By letter dated 14 May 2012 the applicant asked the Chancellor of Justice to re-examine the matter and to take action in order to have the Supreme Court decision of 12 December 2011 re-opened. 29. It is not known whether the case is still pending before the Chancellor of Justice.
| 1 |
test
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001-144943
|
ENG
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RUS
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COMMITTEE
| 2,014 |
CASE OF PALACHEVA v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
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Dmitry Dedov;Erik Møse;Khanlar Hajiyev
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4. The applicant was born in 1948 and lives in Kaspiysk, the Dagestan Republic. She worked as chief accountant in the finance department of Kaspiysk Town Council (“the Kaspiysk finance department”) from 29 September 1980 until her dismissal on 25 January 1993. 5. On 13 May 1993 the applicant challenged the lawfulness of her dismissal. She also requested her reinstatement and salary arrears for the period of her enforced absence from work (вынужденного прогула). 6. By a final judgment of 21 September 1993 the Sovetskiy District Court of Makhachkala (“the Sovetskiy District Court”) ordered the Ministry of Finance of the Republic of Dagestan to reinstate the applicant in the position she had held in the Kaspiysk finance department on 25 January 1993, and to pay her salary arrears in the amount of 364,708 Russian roubles (RUB), corresponding to the period of her enforced absence from work, that is from 25 January to 21 September 1993. As regards the applicant’s reinstatement, the judgment was subject to immediate enforcement. 7. On 20 October 1993 the Ministry of Finance issued an order to reinstate the applicant in her previous position. On 1 November 1993 the Kaspiysk finance department issued the relevant order and the applicant returned to work. The salary arrears awarded by the judgment of 21 September 1993 were paid to the applicant in December 1993 or February 1994. 8. On 7 February 1994 the applicant resigned. She subsequently alleged that she had written her resignation letter under pressure. 9. On 13 May 1994 the applicant brought a court action against the Kaspiysk finance department complaining of the delay in the execution of the judgment of 21 September 1993. On 10 December 1996 the applicant lodged additional claims. 10. On 27 December 1996 the Kaspiysk Town Court of the Republic of Dagestan (“the Town Court”) rejected all the claims lodged by the applicant. The Town Court found it established that the judgment of 21 September 1993 had been executed, the applicant had been reinstated to her position and the sum due under that judgment had been paid to her in December 1993. 11. On 26 February 1997 the Supreme Court of the Republic of Dagestan quashed the judgment of 27 December 1996 and remitted the case for fresh examination. The Supreme Court indicated that the lower court had failed to establish whether the applicant had received the full amount of money due under the judgment of 21 September 1993 and whether she had the right to indexation. 12. The applicant amended her claims on 21 May, 25 June, 14 November and 17 November 1997. She indicated that she had received the sum of RUB 317,734 under the judgment of 21 September 1993, but complained that the Sovetskiy District Court had miscalculated her salary arrears because it had not taken the indexation into account. She also asked for salary arrears from 21 September 1993 to 7 February 1994 and for the period in which delivery of her work record had been delayed. 13. On 28 November 1997 the Town Court allowed the applicant’s claim in part. In particular, it stated as follows: “[T]he court has established that in accordance with the judgment of the Sovetskiy District Court of Machachkala, Palacheva P.G. received in December 1993, together with her salary and holiday pay, RUB 364,708 minus RUB 43,327 of income tax and 1% deduction for pension fund in the amount of RUB 3,647 = RUB 317,734. This is confirmed by the payment record for December 1993 and Mrs. Palacheva’s signature on this payment record certifying that this amount was paid to her. The claimant herself did not deny this fact before the court.” 14. As regards the alleged miscalculation of the sum awarded by the Sovetskiy District Court, the Town Court noted that the judgment had become final and that the calculation made by the District Court had been based on the calculations submitted by the applicant herself. As regards the delay in her reinstatement, the Town Court awarded the applicant salary arrears for the delay, together with indexation. The applicant appealed. 15. On 18 February 1998 the Supreme Court of the Republic of Dagestan upheld the Town Court’s judgment in substance, but reduced the global amount due to the applicant. It was explained to the applicant that the claim concerning indexation of the sum awarded by the judgment of 21 September 1993 should have been lodged with the Sovetskiy District Court which had delivered that judgment. 16. On 20 August 1998 the judge of the Sovetskiy District Court rejected the applicant’s claim concerning the payment of salary arrears and indexation, and invited her to lodge the claim with the Kaspiysk Town Court, which had jurisdiction in view of the defendant’s address. 17. On 1 December 1998 the Sovetskiy District Court extended the timelimit for lodging an appeal against the decision of 20 August 1998 with the Supreme Court of the Republic of Dagestan. 18. On 17 February 1999 the Supreme Court of the Republic of Dagestan quashed the decision of 20 August 1998. 19. On 4 August 1999 the Sovetskiy District Court rejected the applicant’s claim concerning the payment of salary arrears for her enforced absence from work on the ground that it lacked jurisdiction, given that the defendant had moved and was now located within the jurisdiction of the Leninskiy District Court of Makhachkala (“the Leninskiy District Court”). 20. On 11 May 1999 the Vice-President of the Supreme Court of the Russian Federation lodged a supervisory-review appeal with the Presidium of the Supreme Court of the Republic of Dagestan asking for the quashing of the judgments of 28 November 1997 and 18 February 1998. The VicePresident pointed out that the same shortcomings had already been identified by the Supreme Court of Dagestan in its decision of 26 February 1997. However, the Town Court, when considering the case for the second time, had failed to remedy them. 21. On 24 June 1999 the Supreme Court of the Republic of Dagestan, by way of supervisory review, quashed the judicial decisions of 28 November 1997 and 18 February 1998 and remitted the case to the Town Court for fresh consideration. The Supreme Court also noted that its previous instructions had been ignored by the Town Court. 22. On 10 August 1999 the Town Court forwarded the case to the Leninskiy District Court, which had jurisdiction to examine the applicant’s case in view of the defendant’s new address. 23. On 1 September 1999 the Leninskiy District Court rejected the applicant’s claim for salary arrears corresponding to the period of her enforced absence on the ground that this dispute had already been decided by a final judgment. The District Court also noted that there was another case pending concerning similar claims after the quashing on 24 June 1999 by the Supreme Court of the Republic of Dagestan of the Town Court’s judgment of 28 November 1997. 24. On 6 October 1999 the Supreme Court quashed the Leninskiy District Court’s judgment of 1 September 1999. The Supreme Court indicated that if the applicant disagreed with the judgment of 21 September 1993, she could only lodge an application for a supervisory review of that judgment; her other claims, including that in respect of the non-enforcement of the aforementioned judgment, were to be considered in the course of the proceedings pending before the Town Court. Consequently, the Supreme Court discontinued the proceedings pending before the Leninskiy District Court. 25. On 4 November 1999, following the request of its President, the Supreme Court of the Republic of Dagestan quashed the Town Court’s order of 10 August 1999 by way of supervisory review (see paragraph 22 above) on the ground that a domestic court which had accepted its jurisdiction in accordance with the rules of jurisdiction existing at the material time should decide the case on the merits, even if those rules had subsequently changed. The case was thus remitted to the Town Court for consideration on the merits. 26. On 17 January 2000 the applicant amended her requests for the indexation of all the amounts claimed. On 12 May 2000 she again amended her claim. Further amendments were submitted by the applicant on 14, 22, 29 and 30 June 2000. As regards the judgment of 21 September 1993, the applicant claimed that the salary arrears due under that judgment had not been paid to her until 3 February 1994, and had been paid without indexation, and that not all the sums had been taken into account in the calculation of the amount due to her. 27. On 30 June 2000 the Town Court found for the applicant and awarded her different sums together with indexation, compensation for nonpecuniary damage, costs and expenses. As regards the judgment of 21 September 1993, the court noted that the payment of salary arrears had been executed with a delay of five months. 28. As the defendant had missed the deadline for appealing, it was extended on 23 October 2000 and the defendant appealed. 29. On 1 December 2000 the Supreme Court of the Republic of Dagestan rejected a number of the applicant’s claims, reduced the amount awarded in respect of non-pecuniary damage, quashed the Town Court’s judgment and sent the case back for re-consideration. 30. On 19 April 2002 the applicant again amended her claims. She appears to have submitted the same claims as those rejected by the Supreme Court on 1 December 2000. The applicant notably claimed that the judgment of 21 September 1993 had still not been enforced as regards the payment of salary arrears for her enforced absence from work from 21 September to 1 November 1993. 31. On 16 May 2002 the Town Court decided to discontinue the proceedings in respect of the claims previously rejected by the Supreme Court of the Republic of Dagestan. 32. In a second decision adopted on the same day, the Town Court allowed the applicant’s claim in part. It refused her claim for salary arrears corresponding to the delay in execution of the judgment of 21 September 1993 on the ground that that sum had been sent to her in February 1994 but she had refused to collect it. The applicant appealed. 33. On 10 July 2002 the Supreme Court of the Republic of Dagestan allowed the applicant’s appeal. It quashed the Town Court’s judgment on the basis of the same shortcomings as those previously indicated by it. Noting that the proceedings had been pending since 1993, the Supreme Court decided, with the agreement of both parties, to examine the case as a first-instance court. The Supreme Court rejected the part of the applicant’s appeal concerning her claims decided by the decision of 1 December 2000. 34. On 5 January 2003 the Supreme Court of the Republic of Dagestan, noting that the defendant had not agreed to the modification of jurisdiction in favour of the Supreme Court, decided to forward the case to the Town Court for consideration as the first-instance court. The applicant appealed. 35. On 13 March 2003 the Supreme Court of the Russian Federation quashed the decision of 5 January 2003 by the Supreme Court of the Republic of Dagestan on the grounds of a procedural irregularity (absence of parties at the hearing) and remitted the case to the Supreme Court of the Republic of Dagestan for consideration anew. 36. On 28 April 2003 the Supreme Court of the Republic of Dagestan, after hearing the parties and following a request lodged by the defendant’s representative, decided to forward the case to the Town Court for consideration as the first-instance court. The applicant appealed. 37. On 7 July 2003 the Supreme Court of the Russian Federation upheld the decision of the Supreme Court of the Republic of Dagestan of 28 April 2003 to remit the case to the Town Court. 38. On 16 October 2003 the applicant further amended her claims. 39. On 30 October 2003 the Town Court decided to forward the case to the Leninskiy District Court. The applicant appealed. 40. On 18 December 2003 the Supreme Court of the Republic of Dagestan quashed the Town Court’s judgment of 30 October 2003 by way of supervisory review and remitted the matter to the same court for consideration anew. The reasons for the decision were the same than those indicated in the judgment of 4 November 1999 (see paragraph 25 above). 41. On 9 February 2004 the applicant amended her claim. 42. On 10 February 2004 the Town Court allowed the applicant’s claim in part and awarded her certain financial compensation for salary arrears, legal costs and non-pecuniary damage. Both the applicant and the defendant appealed. 43. On 30 April 2004 the Supreme Court of the Republic of Dagestan quashed the Town Court’s judgment and remitted the case for consideration anew. The Supreme Court noted that it appeared from the materials of the case file that the salary arrears awarded by the decision of 21 September 1993 had been paid to the applicant in February 1994. 44. On 22 June 2004 the proceedings were suspended because the applicant was ill. They were resumed on 23 September 2004. 45. On 1 November 2004 the Town Court discontinued the proceedings because the applicant failed to appear in court. It appears that this order became final.
| 1 |
test
|
001-177224
|
ENG
|
BIH
|
CHAMBER
| 2,017 |
CASE OF ČOVIĆ v. BOSNIA AND HERZEGOVINA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court)
|
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
|
5. The applicant was born in 1953 and lives in Hadžići. 6. On 22 November 2011 the applicant was arrested and detained on suspicion of having committed war crimes against the civilian population and against prisoners of war during the 1992-95 war. 7. On 23 November 2011 the State Court of Bosnia and Herzegovina (“the State Court”) reviewed and extended his detention based on the risk of his obstructing the course of justice by exerting pressure on witnesses and co-accused or by destroying evidence. On 1 December 2011 that decision was upheld by the Appeals Chamber of the State Court. 8. On 21 December 2011 the State Court further extended the applicant’s detention on the same grounds as before. On 5 January 2012 that decision was upheld by the Appeals Chamber of the State Court. 9. On 29 December 2011 the State Prosecutor issued an indictment against the applicant and seven other co-suspects, which was confirmed by the State Court on 10 January 2012. 10. Thereafter, the applicant’s detention was regularly examined and extended every two months by the State Court. In addition to those automatic reviews, the applicant repeatedly challenged his detention before the Appeals Chamber of the State Court. 11. On 23 February 2012 the applicant lodged a constitutional appeal, relying on Article II § 3.(d) of the Constitution (see paragraph 16 below) and Article 5 of the Convention. He alleged, in particular, that his detention had been arbitrary and excessive, and that it had not been based on relevant and sufficient reasons. 12. On 13 July 2012 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”), in a formation of eight judges, rejected the applicant’s appeal since it could not reach a majority on any of the proposals. The court’s reasoning included all the views expressed at the session on the issues raised in the case. Pursuant to Article VI § 4 of the Constitution (see paragraph 16 below) that decision was final. 13. On 1 November 2012 the State Court held that the grounds for the applicant’s continued detention had ceased to apply and released the applicant. By the same decision, the court imposed preventive measures on the applicant which included the following: a prohibition on leaving his place of residence without the prior approval of the State Court save for the purpose of appearing before that court; the duty to report once a week to the Hadžići police; a prohibition on associating with other co-accused and on associating or having contact with the witnesses. Furthermore, the applicant’s passport was seized. 14. The preventive measures were reviewed and extended every two months. On 16 December 2015 they were revoked. 15. At the date of the latest information available to the Court (22 July 2016), the criminal proceedings against the applicant were still ongoing.
| 1 |
test
|
001-150997
|
ENG
|
FIN
|
CHAMBER
| 2,015 |
CASE OF ÖSTERLUND v. FINLAND
| 4 |
Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice)
|
Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
5. The applicant was born in 1962 and lives in Karjaa. 6. In 2004 and 2005 the applicant’s two companies were subject to a tax inspection. The tax inspection was concluded with a final report on 20 December 2005. 7. On 25 August and 12 September 2006 the tax authorities imposed on the applicant additional taxes as well as tax surcharges (veronkorotus, skatteförhöjning) for the tax years 2000 to 2003 as he had, inter alia, received disguised dividends from the companies. The amount of tax surcharges varied between 240 and 5,000 euros (EUR). 8. By letter dated 16 September 2008 the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden), requesting it to quash the decisions of 25 August and 12 September 2006 concerning the tax years 2002 to 2003. 9. By letter dated 16 September 2008 the applicant lodged a material appeal (perustevalitus, grundbesvär) with the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) in respect of the tax years 2000 and 2001. 10. On 24 February 2010 the Tax Rectification Committee rejected the applicant’s applications for rectification concerning the tax years 2002 and 2003. 11. By letter dated 12 April 2010 the applicant appealed against the rectification decisions of 24 February 2010 to the Helsinki Administrative Court, requesting that the taxation decisions concerning the tax years 2002 and 2003 be quashed and the tax surcharges be withdrawn. He referred to the ne bis in idem principle and claimed that the taxation decisions violated that principle. 12. On 5 April 2011 the Helsinki Administrative Court cancelled some of the tax surcharges in respect of tax years 2001 to 2003 and quashed the relevant tax decisions. For the rest, it rejected the applicant’s appeals. The court found that there was no impediment to imposing taxes on disguised dividends even if there was already a final criminal judgment in this respect, because imposing taxes on disguised dividends was not considered criminal. There could thus be no question of double jeopardy in this respect. The taxation decisions for the tax years 2002 and 2003 were thus upheld. As far as the tax surcharges and the right to impose additional taxes were concerned, the court found that the tax surcharges and the charges on tax fraud concerned the same matter. The tax surcharges thus related to acts in respect of which the applicant had already been convicted or acquitted. As both matters were pending simultaneously and not consecutively, there was no impediment to continuing the taxation proceedings. Even if the criminal proceedings became final while the taxation proceedings were still pending, this did not prevent the continuation of the taxation proceedings. There was thus no reason to change the tax surcharges as far as the corresponding criminal charges had been dismissed, namely, in respect of the disguised dividends received during the tax years 2002 and 2003. As far as the proceedings led to both criminal conviction and imposition of tax surcharges, the situation was contrary to Article 4 of Protocol No. 7 to the Convention and the tax surcharges were therefore cancelled in respect of tax years 2001 to 2003. The decision was not unanimous. 13. By letter dated 13 June 2011, the applicant appealed against the Administrative Court decision to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court. He argued that his acquittal prevented the further examination of the same matter in taxation proceedings. 14. On 23 January 2013 the Supreme Administrative Court refused the applicant leave to appeal but granted the Tax Ombudsman (veroasiamies, skatteombudet) leave to appeal. It quashed the Administrative Court’s decision regarding cancellation of the tax surcharges and upheld the lower court’s decisions. The court found that it had, in its decision of 20 April 2011, examined the scope of the ne bis in idem principle and the Court’s case-law in this respect. In the present case the charges and the tax surcharges concerned essentially the same matter. However, the ne bis in idem principle was applicable only when the first set of proceedings had become final before the second set of proceedings started. In the present case the proceedings had been simultaneous. Tax surcharges could thus be imposed on the applicant even if the criminal proceedings against him had already become final. The Administrative Court’s decision thus needed to be quashed. 15. On 25 April 2007 the public prosecutor brought charges against the applicant, inter alia, for aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning the tax years 2001 to 2003. According to the charges, the applicant was accused of aggravated tax fraud as he had avoided taxes. The tax authorities joined the charges and presented a compensation claim totalling EUR 150,508.52 plus interest, which was the amount of avoided taxes. 16. On 20 March 2008 the Raasepori District Court (käräjäoikeus, tingsrätten) convicted the applicant of aggravated tax fraud, and sentenced him to a suspended prison sentence of 7 months. He was ordered to pay the tax authorities EUR 89,113.80 plus interest in compensation for the avoided taxes. The court found that the applicant had avoided taxes during the tax years 2001 to 2003 but dismissed the charges as far as they concerned the disguised dividends, for lack of proof. 17. By letter dated 14 August 2009 the applicant appealed to the Turku Appeal Court (hovioikeus, hovrätten), requesting that the charges of aggravated tax fraud be dismissed as tax surcharges had already been imposed in the matter. 18. On 15 April 2009 the Turku Appeal Court upheld the District Court judgment. It found that possible tax surcharges imposed on the applicant did not prevent him from being convicted of tax fraud and sentenced. 19. On an unspecified date the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. 20. On an unspecified date, the Supreme Court granted the applicant leave to appeal. 21. On 19 November 2010 the Supreme Court upheld the Appeal Court judgment. It found that the charges of aggravated tax fraud undisputedly concerned the same failure to declare income for which tax surcharges had been imposed for the tax years 2001 to 2003. The court found that the fact that taxation proceedings became final while criminal proceedings were still pending did not prevent the examination of the charges being continued. In the present case, the charges had been brought before the time-limit for lodging an application for rectification had run out. The tax surcharges in respect of the tax years 2001 to 2003 were thus all still pending before the Administrative Court. As the charges had been brought while the taxation proceedings had not yet become final, there was no impediment to examining the charges of aggravated tax fraud. This judgment was published (KKO 2010:82).
| 1 |
test
|
001-170026
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF TRUFANOV AND OTHERS v. RUSSIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
|
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
|
5. The applicants were born in 1961, 1963 and 1966 respectively and live in the town of Taganrog. 6. On 2 July 2001 the Neklinovskiy District Court of the Rostov Region found the applicants guilty of various offences but declared that they need not serve their respective sentences because the case was time-barred. On 2 October 2001 the Rostov Regional Court upheld the judgment on appeal. 7. On 31 January 2002 the Presidium of the Rostov Regional Court quashed by way of supervisory review the decisions of 2 July and 2 October 2001 and discontinued criminal proceedings against the applicants. It found that the courts had not been in a position to decide on the applicants’ guilt because the whole case had been time-barred. 8. The applicants sued the Ministry of Finance of the Russian Federation for, among other things, compensation in respect of nonpecuniary damage in connection with their prosecution. 9. In its judgment of 1 March 2005 the Taganrog Town Court of the Rostov Region rejected their claims. It reasoned as follows: “... The court finds that, since the applicants’ guilt of the commission of the abovementioned crimes was established, the use of the measure of restraint was justified. This being so, the court has no reason to grant the applicants’ claims for compensation in respect of the non-pecuniary damage resulting from their unlawful detention and the obligation not to leave their usual place of residence. ...” 10. On 11 May 2005 the Rostov Regional Court upheld the judgment of 1 March 2005 on appeal. It stated that: “ ... The first instance court, in reaching its decision refusing to grant the applicants’ claims for compensation in respect of non-pecuniary damage, correctly assumed that the decision of the Presidium of the Rostov Regional Court dated 31 January 2002 cleared them of liability on non-exonerating grounds. In the court’s view, since the applicants’ guilt of the commission of the above-mentioned crimes was established, the application of the measure of restraint during the investigation was justified. The court’s conclusion is a correct one, made following the examination and proper assessment of the legally relevant...”
| 1 |
test
|
001-163672
|
ENG
|
ALB
|
ADMISSIBILITY
| 2,016 |
BELERI AND OTHERS v. ALBANIA
| 4 |
Inadmissible
|
Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano
|
1. The applicants, Mr Alfred Beleri, Mr Koço Llazari, Mr Vangjel Kolila, Ms Sofika Rapo and Mr Angjello Kokaveshi, are Albanian nationals who were born in 1972, 1938, 1971, 1985 and 1959 and live in Greece. They were represented by Mr I. Ktistakis, a lawyer practising in Ekali and Athens. 2. The Albanian Government (“the Government”) were represented by their then Agent, Ms E. Hajro of the State Advocate’s Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants are originally from Himara, a town located on the south-west coast of Albania. They say they belong to the Greek-speaking minority. The fifth applicant was the president of a minority association, called the Union of Himariotes, in Greece (“the association”). He also published the periodical Himara in Greek, (“the newspaper”), the association’s journal. The newspaper was apparently distributed to Himariotes living in Greece. The first applicant was a board member of the association. 5. It is apparent from the case file that the autumn 2003 issue of the newspaper urged Himariotes living in Greece to organise themselves to cast their votes in the October 2003 local government elections in Albania. The newspaper ran headlines and articles which were the subject of domestic legal proceedings in Albania, as set out in paragraphs 26-29 below. 6. On 12 October 2003 local government elections for city councils and mayors were conducted in Himara and elsewhere in Albania. It was reported that a number of incidents occurred on polling day, including in Himara. 7. In the evening of 12 October 2003, following reported irregularities, the applicants protested in front of the Local Government Election Commission. They carried Greek flags and shouted pro-Greek slogans, demonstrating their support for one of the candidates. 8. It would appear that on 13 October 2003 the applicants left Albania for Greece, where they are currently living. 9. Between 13 and 17 October 2003 the prosecutor’s office opened a criminal investigation against the applicants on charges of incitement to national hatred (thirrja për urrejtje nacionale) and denigration of the Republic and its symbols (poshtërimi i Republikës dhe i simboleve të saj) under Articles 266 and 268 of the Criminal Code (“the CC”). According to records of the search for the people involved of 15 October 2003, which were submitted by the Government as part of their observations, it is apparent that the authorities tried unsuccessfully to find the applicants. 10. On 18 October 2003 the Vlora District Court (“the District Court”) made an order in absentia for the applicants to be remanded in custody. The measure was notified to the lawyer in the case, appointed by the court of its own motion. 11. On 5 November 2003 the District Court declared the applicants to be fugitives, in accordance with Article 351 of the Code of Criminal Procedure. 12. On 8 December 2003 the prosecutor in the case notified the applicants’ court-appointed lawyers of the charges against them. On the same day, the prosecutor committed the applicants for trial in absentia. 13. The first hearings, which had been due on 24 December 2003, and 16 January, 2 February and 16 February 2004, were adjourned by the trial court in order to allow the applicants to attend the proceedings. However, owing to their continued absence the court continued the trial in absentia. 14. On 24 September 2004 the District Court found the applicants guilty of the charges and sentenced four of them in absentia to three years’ imprisonment. The fourth applicant was sentenced in absentia to one year and six months’ imprisonment. 15. It would appear that on an unspecified date the applicants became aware of the District Court’s decision because on 17 November 2004 all of them authorised a lawyer to represent them in appeal proceedings. 16. The applicants’ lawyer lodged an application for leave to appeal out of time, which was granted by the District Court on 17 December 2004. 17. Following the appeal lodged by the applicants’ lawyer, that the trial proceedings had been conducted in absentia, on 13 April 2005 the Vlora Court of Appeal (“the Court of Appeal”) quashed the judgment of 24 September 2004 on the grounds of procedural irregularities and remitted the case for fresh examination by a different bench of the District Court. 18. On 23 September 2005, following an appeal by the prosecutor, the Supreme Court upheld the Court of Appeal’s judgment. 19. On 7 December 2005 the District Court resumed the proceedings. On 15 December 2005 the District Court ordered that the applicants be informed of the judicial proceedings against them by posting a public notice. 20. According to the Government, hearings scheduled for 7 and 12 December 2005, and 9 January and 16 February 2006 were adjourned in order to allow the applicants’ to attend the re-trial. 21. On 18 January 2006 the prosecutor confirmed that the applicants’ whereabouts could not be established. 22. On 19 January 2006 the District Court declared the applicants to be fugitives, in accordance with Article 351 of the Code of Criminal Procedure and continued with the trial in absentia. 23. Hearings due on 27 January, 6 April and 6 July 2006 were adjourned on the grounds that witnesses needed to be summoned for questioning, that one of the judges had to be transferred to another court and that a judge had to be absent for health reasons. 24. The applicants remained absent from the re-trial proceedings and on 18 July 2006 the District Court found them guilty of the charges and sentenced each of them in absentia to three years’ imprisonment. It found that by making anti-Albanian statements the applicants’ actions had been capable of inciting national hatred, as proscribed by Article 266 of the CC. The court further held that the applicants had publicly denigrated the Republic of Albania and its constitutional order, proscribed by Article 268 of the CC, as a result of not paying due respect to the Albanian flag and national anthem while displaying the Greek flag and singing the Greek national anthem; by writing press articles and issuing publications which portrayed Himara as Greek territory; and by refusing to recognise any government other than that of Greece. 25. The court examined a videotape of the applicants making public statements on 12 October 2003. The second and third applicants, Mr Koço Llazari and Mr Vangjel Kolila, had publicly shouted, “Al-Qaeda” and “Albania al-Qaeda”, while sticking their tongues out and showing their middle fingers. The third applicant had addressed a crowd of people in Greek from a podium while displaying a cross that he was wearing around his neck. The fourth applicant, Ms Sofika Rrapo, had wrapped herself in a Greek flag which she had been carrying with her. The third and fourth applicants had taken out other small Greek flags and waved them. Six photographs showing the applicants carrying out the actions mentioned above had also been obtained as evidence. 26. The court also examined the autumn 2003 issue of the newspaper. One of its front page headlines read: “Fervently and in unison. The response of Himara for its own rights. Vote with dignity and not subserviently! What you failed to accomplish, Himariotes, you may finish now.” 27. The above headline topped an article which called on Himariotes “to be united against communism in Albania, which has been persecuting them since 1941 and continues [to do so] even today”. 28. Furthermore, the front page of the newspaper contained an announcement that buses were being made available for anyone wishing to cast their votes in Himara during the local government elections of 12 October 2003. 29. Another article, on page 5, by a certain H. K., had the following headline: “The battle for Hellenisation starts in Himara.” The court decision quoted the following excerpts from the article: “These elections are the best way to achieve the Hellenisation of Vorio Epirus... The battle of all battles will be waged in Himara. The [united] forces of Himariotes who proclaim their Hellenisation will be tested in Himara so that it can be recognised as a Greek town, so that it can have a Greek school and enjoy all the rights that other minorities have in Europe. Every Greek Himariot who is absent from that battle has no right and is less than Greek. ... The vote is the only option for those who declare themselves to be Greeks and to fight against those who profess to be ‘socialists’ or, even worse, ‘Himariotes’ (këto zgjedhje janë më të duhurat për Elinizimin e vorioepirotëve... Beteja e betejave do të jetë në Himarë, në Himarë maten forcat e Himariotëve që deklarojnë Elinizmin e tyre dhe që Himara të njihet si zone me kombësi greke, të ketë shkollë greke dhe të ketë të gjithë të drejtat që kanë në Evropë të gjithë minoritetet. Cilido Himariot Grek që do të mungojë në këtë luftim, nuk ka asnjë të drejtë dhe është shumë pak për grek...Vota është rruga e vetme për ata që deklarojnë grek dhe japin betejën e tyre kundrejt atyre që deklarojne ‘spocialiste’ apo më e keqj ‘himariotë’)”. Himara is Greek and this needs to be demonstrated. I think that the sacrifice demanded from the Greek Himariotes is not too great. Himara will win, Vorio Epirus will win.” 30. The court also relied on the statements of witnesses and police officers who were on duty on the day and who confirmed that the applicants had made such statements in public and that they had stirred up the crowd, which had led to a disruption of public order and the vote-counting process. 31. The decision reads, in so far as relevant, as follows: “Defendants Angjello Kokaveshi and Alfred Beleri, through their active criminal acts as stated in their article in the Himara newspaper, whose publisher is Angjello Kokaveshi, are the principal organisers of the criminal acts that took place in Himara during the voting in the local elections on 12 October 2003. They are the main organisers of the protest that occurred on 12 October 2003 because they: published articles in the nationalist, chauvinist Himara newspaper a few days ahead of polling day; called on Himariotes to unite; stated that Himara is Greek, that they are Greek and that this is the battle of battles, that a war should be waged for Hellenisation and not Albanianisation, that Vorio Epirotes should fight in order to proclaim their Hellenisation so that Himara could be recognised as Greek territory; stated in the newspaper that no Greek Himariotes should be spared from this war or, otherwise, they could not lay claim to be called Greek; stated in their publication that this is a war of Hellenisation against communism, against Albanianisation, against socialists ... and democrats ...; informed, organised and secured the transportation of Himariote immigrants already living in Greece to Himara; incited them through their words and statements in favour of Himara’s secession from Albania; carried out criminal acts to incite national hatred against the Albanian population, State and Government; and incited people to use violence and other arbitrary acts against the population, police officers and commissioners. ... Defendants Angjello Kokaveshi and Alfred Beleri actively participated in the protest of 12 October 2003 in front of the Himara municipality building. [They] incited the crowd to use violence and carry out other arbitrary acts which endangered public order and peace. [As a result] a policeman who was on duty at a polling station in Himara was injured; pressure was exerted upon other citizens who were casting their votes; Himara’s central street was blocked; an explosion in Himara occurred and attacks on polling stations and commissioners took place. As regards defendants Vangjel Kolila, Koco Llazari and Sofika Rrapo, the court considers that after examining the transcript of the examination of the videotape, the photographs as well as the witnesses’ statements, they [the defendants], through the use of slogans, such as “Albania is Al Qaeda”, “Himara is Greek”, “This is Greek land”, “Turks away from Himara”, “Turkey did not subdue us, let alone Albania”, “We shall remove Albanians from Himara”, “We shall remove foreigners from Himara”, were in charge of the protest which took place in front of the Himara municipality building during the voting process in Himara and during the vote counting process, [and] were the main perpetrators of criminal acts. As a result of the slogans chanted before the crowd, they incited national hatred against the rest of the population ... Their actions endangered public order and peace. [As a result] a policeman who was on duty at a polling station in Himara was injured; pressure was exerted upon other citizens who were casting their votes; Himara’s central street was blocked; an explosion in Himara occurred and attacks on polling stations and commissioners took place. Defendants Vangjel Kolila [who went to every polling station and held meetings], Koco Llazari [who held speeches] and Sofika Rrapo [who held the Greek flag, with all of them handing out small flags and calling on people to embrace the Greek flag] played a decisive role in inciting the protesters to chant slogans of a nature that promoted national hatred and the carrying out of violent and arbitrary acts against the population. [Such] actions jeopardised public order and peace. Defendants Angjello Kokaveshi and Alfred Beleri through the publication of the Himara newspaper and the use of statements such as “Himariotes are Vorio Epirotes”, “Himara is Greek”, “Hellenisation versus Albanianisation” ... have denigrated the Republic of Albania and its constitutional order. Defendants Vangjel Kolila, Koco Llazari and Sofika Rrapo, by waving and raising the Greek flag and stating that this [land] is part of Greece and not Albania, by singing the Greek anthem and showing disrespect for the Albanian flag, anthem, police and institutions ... in the presence of a huge crowd of people, have publicly denigrated the Republic of Albania, its constitutional order, flag and anthem.” 32. In imposing its sentence, the court took into account the limits on penalties provided for in Articles 266 and 268 of the CC, the fact that the offences had been committed in collusion and in public, the applicants’ criminal responsibility and degree of guilt, as well as the need to try and prevent that kind of criminal activity in Himara. The court dismissed the arguments of the applicants’ lawyer that their actions should have been classified as minor offences (kundërvajtje penale), in accordance with the Freedom of Assembly Act. It held that their acts, namely their calls to national hatred, their violence and other arbitrary acts against the population and the law-enforcement authorities, their denigration of the Republic of Albania, its constitutional order, flag and anthem fell to be considered under the CC and did not give rise to the application of the Freedom of Assembly Act. 33. On 19 July 2006 and 27 December 2007 the applicants appealed to the Vlora Court of Appeal and the Supreme Court, respectively. Relying on the Freedom of Assembly Act, the applicants sought to have their acts for participation in unlawful protest classified as minor offences and their imprisonment commuted to a fine. They also contested the witnesses’ statements as being unreliable. 34. On 14 November 2006 the Court of Appeal put out a public summons for the applicants. 35. On 26 December 2006 the Court of Appeal dismissed the appeal. The court stated that the evidence contained in the case file, such as the videotape, demonstrated that all the applicants had actively participated in the unlawful protest by chanting slogans against the Republic of Albania, pushing away law-enforcement officers, waving and distributing Greek flags or sticking their tongues out and showing their middle fingers. The contents of the Himara newspaper constituted additional corroborating evidence of the commission of the offence by the applicants. Witness testimony corroborated that they had uttered slogans and made various calls, which had been in Albanian, as also evidenced by the recorded material. 36. The Court of Appeal further stated that conducting an unlawful (i paligjshëm) protest during the local elections – a direct exercise of sovereignty by citizens – in front of the building which housed the institution that provided for the good conduct of such an important political activity, had struck at social relationships which had been established to secure equality, public peace and order. It had also struck at the inviolability of the Republic, its constitutional order, symbols, anthem and crest, as protected by criminal legislation. The applicants’ acts had not only consisted of the use of symbols or signs that incited violence or discrimination within the meaning of the Freedom of Assembly Act. Their calls and slogans and the publication of the newspaper had also aimed at inciting hatred against that part of Himara’s population which did not identify itself as being of Greek origin. They had caused problems relating to the maintenance of public order, to the denigration of State authority and to defiance of the constitutional order, national flag and anthem. As such, they had come within the ambit of Articles 266 and 268 of the CC. 37. On 4 February 2009 the Supreme Court, in a reasoned decision, dismissed the applicants’ appeals. It considered that the lower courts had made a correct classification of the applicants’ criminal acts under Articles 266 and 268 of the CC and that their conviction had been based on the evidence contained in the case file. 38. In a dissenting opinion, Judge S.S of the Supreme Court expressed the view that the applicants’ acts should have been examined as minor offences which had led to the disruption of public order, under Article 274 of the CC, which would have resulted in a fine. 39. The relevant Articles of the Constitution read as follows: “1. Sovereignty in the Republic of Albania belongs to the people. 2. The people exercise sovereignty through their representatives or directly. ...” “The independence of the state and the integrity of its territory, the dignity of the individual, human rights and freedoms, social justice, the constitutional order, pluralism, national identity and inheritance, religious coexistence, as well as coexistence with, and understanding of Albanians for, minorities are the bases of the State, which has the duty to respect and protect them.” “1. Limitations of the rights and freedoms provided for in this Constitution may be established only by law, in the public interest or for the protection of the rights of others. A limitation shall be in proportion to the situation that has dictated it. 2. These limitations may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights.” “1. Freedom of expression is guaranteed. 2. The freedom of the press ... is guaranteed. 3. Prior censorship of means of communication is prohibited.” “1. The right to information is guaranteed.” “In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law”. “1. The freedom to have peaceful meetings, without arms, and to participate in them is guaranteed. 2. Peaceful meetings in squares and places of public passage are held in accordance with procedures provided by law.” 40. The relevant provisions of the CC read as follows: “It is the duty of the criminal law of the Republic of Albania to protect the independence of the State and its territorial integrity, human dignity, fundamental rights and freedoms, the constitutional order, property, the environment, the coexistence and good understanding of Albanians with national minorities as well as religious coexistence from criminal offences, and to prevent such offences. “Endangering public order by inciting national hatred against other sections of the population, by insulting or defaming them, or by requesting the use of force or arbitrary actions against them, may result in a fine or a term of five years’ imprisonment.” “Denigration of the Republic of Albania and [its] constitutional order, flag, emblem, national anthem or martyrs of the nation, voiced publicly or through the publication or distribution of written material, or the removal, damage or destruction of the flag or emblem of the Republic of Albania wherever displayed by official institutions, or making either of them indistinct or unusable, constitutes a minor offence (kundërvajtje penale) and is liable to a fine or two years’ imprisonment.” 41. The Act sets down rules on holding a peaceful assembly and participating in such an assembly. That freedom can be restricted on certain defined grounds such as national security, public security, the prevention of disorder or crime, the protection of health or morals or the protection of rights and freedoms of others (section 1). Before any assembly may be held in public squares or on thoroughfares (sheshe ose vendkalime publike), the organisers are obliged to notify the chief of police in writing, at least three days prior to the day of the assembly (section 5). When there are serious grounds to believe that an assembly will constitute a real risk to national security, public security, the prevention of crime, or the protection of the health, rights and freedoms of others and there are no less stringent measures available, then the chief of police may ban the assembly or decide when and where it may be held (section 8). Participation in a banned assembly constitutes a minor offence and can lead to a fine (section 24). 42. Section 9 provides for the dispersal of an assembly by the police on certain defined grounds. Failure to respect police orders constitutes a minor offence and can lead to a fine (section 24). 43. It is prohibited to possess firearms and conceal one’s identity which incites discrimination or violence on racial, ethnic or religious grounds (section 18-19). Section 20 further provides that in assemblies held in squares or places of public passages or in places open to the public, the use of uniforms, signs or symbols that refer to associations or groups that have been created to incite discrimination or violence on racial, ethnic or religious grounds is prohibited. The use of clothing, objects, signs or symbols to conceal one’s identity or incite violence or discrimination as provided for under sections 18-20 constitutes a minor offence and is punishable by a fine or a term of imprisonment up to six months (section 24). 44. Article 104 of the Electoral Code, as in force at the material time, provides for the maintenance of public order in polling stations (ruajtja e rendit në qendrën e votimit). When there is a risk of disruption of public order and the conduct of elections, the Polling Station Commission (Komisioni i Qendrës së Votimit) may decide to suspend the elections and seek the assistance of the police. The request must be submitted in writing and should contain a brief description of the facts and reasons for the intervention of the police. 45. International monitoring bodies, such as the Organisation for Security and Cooperation in Europe/Office for Democratic Institutions and Human Rights (“the OSCE/ODIHR”) and the Council of Europe Congress of Local and Regional Authorities of Europe (“CLRAE”), monitored the local elections in Albania in 2000 and 2003.
| 0 |
test
|
001-169053
|
ENG
|
BEL
|
GRANDCHAMBER
| 2,016 |
CASE OF LHERMITTE v. BELGIUM
| 1 |
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
|
Aleš Pejchal;András Sajó;Angelika Nußberger;Armen Harutyunyan;Branko Lubarda;Guido Raimondi;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Yonko Grozev;Gabriele Kucsko-Stadlmayer;Georges Ravarani
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9. The applicant was born in 1966. She is currently detained in Forest-Berkendael Prison. 10. On 22 September 1990 the applicant married B.M., whom she divorced after the events to which the application relates. According to her explanations, since 1983 B.M. had been living with Dr M.S., a man fifteen years his elder, who had taken him in following B.M.’s arrival from Morocco, providing him with a home and paying for his studies. 11. The applicant and her husband had five children. In 1992, shortly after the birth of her first child, the applicant began suffering from depression and stopped working as a French and history teacher, only returning for a few months in 1993. Dr M.S. certified her unfit for work on account of depression and asthenia. Subsequently, her insurance company’s medical adviser confirmed that she was unfit for work on account of depression. In October 1996 a report by a court-appointed psychiatrist, which was later endorsed by the Employment Tribunal, diagnosed her as suffering from “recurrent endogenous anxiety and depression, with a slightly destabilised basic personality”, rendering her more than 66% unfit for work. The expert concluded as follows: “... social contact feeds a sense of persecution and interpretative paranoia. The patient is socially withdrawn and has a tendency to retreat into herself. When faced with anxiety-inducing situations, the patient regresses emotionally, retreats into herself and takes refuge in passive-receptive and hypochondriac behaviour. On account of her intrinsic sensitivity, her anxiety may be combined with reactive depression. To conclude, we are confronted with a fragile, sensitive and anxious personality, with feelings of abandonment and phobic and obsessional components, who is likely, in situations of anxiety, to regress emotionally, to withdraw into herself and to develop various manifestations of anxiety, persecution and depression.” 12. The applicant and B.M. lived in a house which had been bought in their name but paid for by Dr M.S. The applicant’s husband worked part-time as Dr M.S.’s administrative assistant. 13. On 25 June 2004, on the recommendation of Dr M.S., who was her general practitioner, the applicant consulted a psychiatrist, D.V., who prescribed an antidepressant, sleeping tablets and anti-anxiety medication. Dr D.V., who had suggested that the applicant undergo psychiatric monitoring, saw her again on 4 February 2005, among other occasions, and wrote to M.S. recommending that he prescribe her a new antidepressant, as well as sleeping tablets and anti-anxiety medication. The applicant consulted D.V. once a month between February 2005 and the summer of 2006. The latter noted that the applicant appeared to be “always very tense and suffering from nervous exhaustion, constituting all the hallmarks of rumination” and that she showed “symptoms of social withdrawal and abnormal exhaustion during household tasks”. In the spring of 2006 the applicant reported to D.V. that she felt isolated from her own family. From September 2006 she saw him every three weeks. In December 2006 D.V. successively prescribed the applicant two types of sleeping tablets. On 12 January 2007 she linked her exhaustion to the fact that she could not bear Dr M.S.’s presence, and on that occasion D.V. noted “a feeling of dependence” on M.S. financially, “a feeling of insecurity” and “a feeling towards that person [M.S.] which was one of intrusion, of having an unwelcome person under her roof, and also a great deal of ambivalence”. 14. Dr D.V. saw the applicant again on 30 January and 9 and 13 February 2007. On the last-mentioned date the applicant wrote him a letter, which read: “Doctor, I don’t feel very well when I wake up, I have trouble getting out of bed and I have stomach cramps. I have to get up though because I have diarrhoea every morning. I have this big knot. The whole of my left arm is frozen. I feel so sad, deeply sad. I can no longer manage a coffee in the morning. I feel very weak and lacking energy. I am afraid all the time. I am afraid of myself. I am afraid of the future. When I walk down the street, I am afraid. I don’t have the courage. I don’t know where to find the courage and I am tired of it all. I don’t want to believe in a better future. I am at a dead end. I have been to a shop. I went to see if they had a very sharp meat knife. I don’t know how I am going to tell my husband all this, that I don’t feel well and that I have always kept it hidden that I felt so bad about myself and in my head and that I was taking medication. Please do something for me. I am being crushed by a mass of bad feelings. I have never felt so vulnerable. I feel unwell during the night. I often wake up and think. Ms Lhermitte ...” 15. In February 2007 the applicant mentioned sharp knives to D.V. on one or two occasions. D.V. interpreted this as “an impulse phobia”. He saw her again on Friday 23 February 2007, noting that the applicant remained “extremely preoccupied as well, in the absence of her husband who [had] gone to Morocco again, and [found] herself having to deal alone with her uneasy feelings towards [M.S.]”. 16. Early in the morning of 27 February 2007, the day before the incident, the applicant went to Dr D.V.’s practice and delivered a second letter which she had just written. The letter read as follows: “Dr [V.], you don’t have much time. I have not felt well these last few days. I’m having dark thoughts. They are suicidal thoughts which are going to carry me away and I will take my children with me. It’s a daily struggle. My friend [V.G.] is supporting me. There is no solution to my problem. I feel walled up. I feel like a prisoner. I no longer have the strength. I don’t think my husband will save me because whichever way you look at it, he is in a favourable position. He is coming home tomorrow evening but I can’t tell him of all my pain and distress. The family situation cannot be turned around. I have already had suicidal thoughts in the past. I imagine scenarios which are both true and realistic and I know I am capable. This is not a game. Sorry to take up your time! Ms Lhermitte ...” 17. Later that day, in the early afternoon, the applicant telephoned Dr D.V.’s practice to check that her letter had actually been received. 18. The applicant’s letters addressed to Dr D.V. dated 13 and 27 February 2007 were not included in the file on the criminal investigation. D.V. later indicated that they had not formed part of the applicant’s medical records. 19. On 28 February 2007 the applicant left a final letter, together with a bag of jewellery, in the letterbox of her friend and confidante V.G. The letter read as follows: “My dear friend [V.], I have cut off my phone and I am now starting to write this letter. I hope you will not be shocked by what I’m going to write. You must show it to [Dr D.V.] who will be at Érasme [hospital] on Friday morning at 9. He will be able to help you and explain what you explained to me so kindly when you came to my house. I don’t have the courage to get things moving and I am completely frozen and paralysed with fear because there is no solution to my problem. You have always opened your door to me and my children and have been a ray of sunshine in our life, and I will thank you forever. I have decided to go a long way away with the children forever. One day, you’ll see, we’ll meet again but I don’t regret this final solution. Please let my sister Mireille ... and my other sister Catherine ... know. Please forgive me. I beg my sisters to forgive me if I have hurt them. I can no longer bear this situation, because my husband is blind and deaf and despite that, he is happy in this situation. [M.S.] is a bastard who has ruined my life and robbed me of my privacy with my husband and children. I left the hell of my parents’ home only to fall into another hell. ...” 20. The applicant ended her letter by asking her friend to share her jewellery with her two sisters. She also left a voicemail message on V.G.’s mobile phone – in a voice which the investigating officers later described as “trembling” and “hesitant” – telling V.G. that she had left a letter and a present in her letterbox and asking to be “forgiven”, before saying “goodbye”. 21. Afterwards, using two knives which she had stolen from a department store, the applicant killed her five children one by one before attempting suicide. 22. After writing the message “call the police” on a sheet of paper stuck to her front door, she telephoned the emergency services to say that she had killed her five children and to report her suicide attempt. When the police, the ambulance crew and the medical services arrived at the scene, they found the applicant, who was injured, and the bodies of the five children with their throats slit. 23. When the applicant was admitted to the intensive-care unit on the day of the incident, the doctor treating her noted “depressive, self-destructive thoughts against a background of psychotropic, anti-anxiety and antidepressant medication”. During her initial police interview, the applicant had explained that she had acted in a fit of despair caused by her family’s dependence on Dr M.S. 24. On 1 March 2007 an investigating judge at the Nivelles Court of First Instance charged the applicant with the intentional and premeditated homicide of her five children. The applicant was also placed in pre-trial detention. 25. Forensic medical reports produced between 12 March and 31 December 2007 concluded that the five homicides had been committed in a relatively short time – about ten minutes in each case – and that, in view of the speed at which the events had occurred, they were the result of a preconceived plan. In addition, toxicological analyses carried out on blood samples taken from the applicant confirmed that she had only been taking a combination of anti-anxiety medication and sleeping tablets, the plasma levels detected being described as subtherapeutic – in other words, very low. 26. The investigating judge ordered several psychological reports. Two psychologists examined the applicant and submitted their respective reports on 30 October and 8 November 2007. They both concluded that the applicant was suffering from inner fragility requiring massive, rigid defences to preserve a perfect facade. She had developed a maternal omnipotence and a lack of psychological distance between the children and herself. Thus, by killing her children – love-objects in whom she had over-invested – the applicant was killing herself both as a person and as a mother. 27. A psychiatric assessment was also ordered by the investigating judge, who appointed a panel of three psychiatrists, Drs G., B. and M. The panel of experts examined the applicant and drew up a report dated 30 October 2007, in which they concluded: “We consider that [the applicant] was in a severe state of anxiety and depression which encouraged her to act as she did and profoundly impaired her judgment, without destroying it altogether. ... The accused was not suffering at the time of the events, and is not currently suffering, from a mental disorder or a severe mental disturbance or defect making her incapable of controlling her actions.” 28. In an order of 17 June 2008 the Indictments Division (chambre des mises en accusation) of the Brussels Court of Appeal, upholding an order made by the investigating judge on 19 May 2008, committed the applicant to stand trial in the Assize Court for the following offence: “... in Nivelles, on 28 February 2007, having knowingly, intentionally and with premeditation, killed the following persons: - [Y.M.], born on 13 August 1992; - [N.M.], born on 13 February 1995; - [My.M.], born on 20 April 1997; - [Mi.M.], born on 20 May 1999; - and [Me.M.], born on 9 August 2003.” 29. The indictment of 19 October 2008, drawn up by the Principal Public Prosecutor, ran to fifty-one pages and gave an account of the precise sequence of events, the steps taken and evidence obtained during the investigation, and the forensic medical reports; a substantial part of it also focused on the applicant’s personal history and family life and the motives and reasons that had prompted her to carry out the killings, particularly in the light of the expert assessments of her psychological and mental state. 30. The applicant’s trial took place in the Assize Court of the province of Walloon Brabant from 8 to 19 December 2008. At the start of the trial the indictment was read out by the Advocate-General representing the prosecution, and the nature of the offence forming the basis of the charge and any circumstances that might aggravate or mitigate the sentence were likewise indicated. 31. While giving testimony during the trial in the Assize Court, Dr D.V. mentioned the existence of the two letters dated 13 and 27 February 2007 which the applicant had addressed to him. He produced them in court, thus disclosing them for the first time in the proceedings. In view of this new evidence, the President of the Assize Court duly instructed the panel of three psychiatrists, G., B. and M., who had already been involved at the investigation stage and had already confirmed their findings orally before the Assize Court, to produce a further report. 32. On 14 December 2008 the panel of three psychiatrists adopted a report in which they expressed a unanimous opinion. They began by noting by way of introduction: “[The first question, concerning the applicant’s ability to control her actions at the time of the events and at present] is regularly the most difficult and controversial because of the ‘all or nothing’ nature of the answer that has to be given regarding inability to control one’s actions, so much so that some psychiatrists have for that reason declined to produce expert reports in criminal cases. A total loss of control over one’s actions is absolutely clear only in certain cases, such as delusional psychosis (‘dementia’). In other cases, it is more debatable and the personal conviction of the experts will be influenced by the presence of certain indicators. Their conclusions, in concise form, must give precise answers to the questions set out in the instructions. These answers reflect the experts’ personal conviction after carrying out the various written procedures. They are only ever an informed opinion, and not an absolute scientific truth.” The experts went on to make the following findings in particular: “The letter of 13 February [2007] suggests all the signs of melancholic major depression. ... These melancholic states are grounds for emergency hospital admission, or observation, where necessary. ... In the second letter, although in terms of content she unequivocally expresses her anxiety in relation to a suicide where ‘I will take my children with me, because there is no longer any future’, in terms of meaning she is clearly asking for help, apparently foreseeing her inability to control her future actions. ... These documents thus demonstrate beyond doubt that Ms Lhermitte no longer felt capable of controlling her actions ... it has always been clear that there was mental disturbance ... new evidence [warrants] the firm conviction that at the time of the events, Ms Lhermitte was incapable of controlling her actions on account of a severe mental disturbance. ... Ms Lhermitte developed a severe state of anxiety and depression ... [and] a transient dissociative state of depersonalisation, causing her to perform acts of extreme violence. Only operational thought remains; reflective consciousness is momentarily lost. ... Currently ... she remains fragile and there is still a chance, particularly because mourning is impossible, that she will experience a further episode of mental disturbance making her incapable of controlling her actions: the possibility remains that she may attempt suicide ...
| 0 |
test
|
001-176827
|
ENG
|
GEO
|
CHAMBER
| 2,017 |
CASE OF MIRZASHVILI v. GEORGIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
|
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
|
6. The applicant was born in 1971 and was at the material time serving a prison sentence in Rustavi Prison no. 2. 7. On 9 August 2005 the applicant was arrested on suspicion of having robbed an individual of his vehicle, his mobile phone, and a sum of money while armed. He was placed under investigation that day and questioned twice. He protested his innocence, providing an alibi, and said that he had cancer and was undergoing treatment at an oncology clinic. The applicant was identified by the victims. Maintaining his innocence, he refused to sign the record of the identification procedure. 8. During questioning on 10 August 2005, the applicant repeated his alibi and complained about his state of health. On the same day he was charged with theft and armed robbery (Articles 178 and 179 of the Criminal Code respectively). 9. On 11 August 2005 the Mtskheta District Court granted an application by the prosecutor to place the applicant in pre-trial detention for three months. On 22 August 2005 the decision was upheld by the Tbilisi District Court, despite the applicant’s submission that he was ill and would not attempt to evade justice. The applicant was placed in Tbilisi Prison no. 5. 10. On 18 October 2006 the applicant was found guilty of the charges and sentenced to ten years’ imprisonment by the court of first instance. 11. The applicant appealed to the Tbilisi Court of Appeal. After examining the witness statements in the light of the other evidence, the Court of Appeal found that the applicant’s alibi lacked credibility. By a judgment of 24 July 2007, it amended the judgment of 18 October 2006 in the part concerning the classification of the offences, but upheld the applicant’s conviction and prison sentence. 12. The Supreme Court of Georgia dismissed an appeal on points of law by the applicant on an unidentified date. 13. In 1998 the applicant had an operation to remove a malignant tumour from his right testicle. He subsequently had chemotherapy on a sporadic basis. As the illness then returned, he had another operation in 2003. According to a medical certificate dated 4 March 2005, the applicant also suffered from chronic hepatitis C (HCV). 14. Shortly after being placed in detention, on 20 August 2005, the applicant was transferred to the prison hospital. After confirming the diagnosis of chronic HCV and that he had been recently treated for cancer of the right testicle, doctors recommended he have a consultation with an oncologist and a special medical examination. On 24 August 2005 the head of the surgical unit wrote to the prison hospital’s acting head doctor, informing her that the applicant needed to be examined by a urological oncologist at the National Centre for Oncology (“the NCO”). He noted that the applicant was ready to bear all the costs himself. In September 2005 doctors again recommended he be seen by an oncologist specialising in urology. The case file shows that the applicant was not transferred to the NCO or examined by an oncologist. He stayed at the prison hospital until 4 February 2006 and, according to his medical records, he was provided with treatment for his symptoms, which consisted of pain medication. 15. After several prison transfers and given that his health was still unsatisfactory, the applicant returned to the prison hospital on 25 February 2006. On 7 March 2006 an oncologist concluded after examining the applicant that the cancer had returned and that he also had pain in his left testicle. He had lost weight and the chronic HCV had worsened. 16. On 15 August 2006, at the request of the applicant’s defence, a group of independent experts submitted a report on his health. They diagnosed him with cancer of the right testicle at stage 1 B in clinical group II. The experts considered that given the degree of the tumour’s malignancy the applicant’s state of health could be considered as potentially serious. The rest of the tumour would have to be removed and the applicant given an intensive course of chemotherapy in conditions of stability. He would have to undergo check-ups every three months for five to seven years. 17. On 2 September 2006 the applicant was sent back to Tbilisi Prison no. 5. The authorities refused a request for his return to the prison hospital sent by his lawyer to the director of the prisons department of the Ministry of Justice, the prison governor and other authorities. 18. On 17 November 2006 the applicant was sent to the NCO for a course of chemotherapy. On 5 December 2006, before being discharged, the oncologist recommended that the applicant return after three weeks for a check-up and more chemotherapy. At the same time, in view of the further progress of the disease, he recommended that the applicant be placed under permanent medical supervision in the prison hospital. 19. The applicant was put in the prison hospital from 5 to 16 December 2016, receiving treatment for his symptoms. On 16 December 2006 he was moved from the prison hospital to Rustavi Prison no. 6. Contrary to the oncologist’s recommendations, the prison administration did not send the applicant back to the NCO after three weeks. 20. On 5 April 2007 the applicant’s lawyer lodged a complaint with the Tbilisi Court of Appeal, drawing the judge’s attention to his client’s poor health, caused by a lack of adequate treatment which, in his view, could lead to his death. He complained in particular about the fact that the applicant had not been able to attend intensive chemotherapy sessions, despite doctors’ recommendations. The lawyer asked the Court of Appeal to order an expert report to reassess his client’s state of health, determine whether the prison hospital was able to provide him with the necessary treatment and whether the conditions of his detention could have a negative impact on his health. It also had to establish whether the applicant’s life would be put at risk if the authorities failed to place him in a specialist clinic. 21. On 10 April 2007, the Court of Appeal, having received an objection from the prosecutor, rejected the lawyer’s request and decided to summon the oncologist who had signed the recommendation of 5 December 2006. 22. On 21 April 2007 the applicant was placed in the prison hospital. On 24 April 2007 his doctor concluded that the applicant required a transfer to the NCO for more chemotherapy. The doctor subsequently reiterated his recommendation, however, it was in vain as no transfer followed. By midMay the applicant’s condition had deteriorated. According to his medical records, he suffered constant pain and regularly received strong painkillers. The doctor in charge noted on a regular basis in the medical record that the applicant needed to be transferred to the NCO urgently. 23. In the meantime, in the context of the criminal proceedings conducted against the applicant, the Court of Appeal ordered that he be examined at the NCO. 24. On 19 June 2007, the applicant was admitted to the NCO, where he stayed until 13 July 2007 in order to undergo a course of chemotherapy. At the same time a report concerning his medical condition was issued, which confirmed the diagnosis of cancer of the right testicle at stage 1 B in clinical group II. The experts held that the results of the chemotherapy meant that the applicant’s state of ill health could not be described as serious. Nevertheless, given the malignancy of the tumour the cancer could return. Consequently, several chemotherapy sessions were necessary to consolidate the success of the previous treatment. In addition, the applicant needed check-ups in a specialist clinic every three months. 25. He was then returned to the prison hospital on 13 July 2007, with a recommendation for another course of chemotherapy after three weeks. In August 2007 the doctor in charge of his case repeatedly noted in his medical records that he required chemotherapy. The medical file shows that only treatment for his symptoms was available at that time. 26. On 23 August 2007 the applicant returned to the NCO for chemotherapy. On 7 September 2007 he was transferred back to the prison hospital with a recommendation for regular quarterly medical tests. On 22 September 2007 he was sent to Rustavi Prison no. 2 and given a recommendation for an examination after three months. No record of his medical care at Rustavi Prison no. 2 and the subsequent four months, if any, has been submitted to the Court. 27. On 31 January 2008 the applicant was transferred to the prison hospital, where he had various medical tests and had a consultation with an oncologist and a chemotherapy specialist. The latter concluded that there was no need for continued chemotherapy and noted that the applicant was due to return to the prison hospital for another check-up within two months. As for the applicant’s HCV, a liver function test had helped establish that the amount of bilirubin was within the norm and that no antiviral treatment was required at that stage. On 21 February 2008 the applicant complained about being discharged from the prison hospital and of a lack of adequate medical care, particularly for his HCV. He stated that the chemotherapy had had an adverse effect on his liver and that he required urgent care in that regard. Notwithstanding his complaint, on 23 February 2008 he was transferred to Rustavi Prison no. 2. 28. The applicant submitted that he had borne the costs of his stays in hospital and treatment with the support of his family. According to the invoices in the case file, 800 Georgian laris (approximately 333 euros (EUR)) were spent on his treatment at the NCO. The applicant also submitted a certificate which stated that in the framework of a state-funded programme to combat cancer he had benefitted from a 30% reduction in the cost of treatment and a 70% reduction in the cost of diagnostic tests. Without those reductions, the family would not have been able to pay for his treatment. 29. On 28 March 2008 the Court, acting under Rule 39 of the Rules of Court, indicated to the Government that the applicant should be placed in the prison hospital, where he could be provided with adequate medical treatment for his cancer and chronic HCV. The Government were also directed to ensure that the applicant was provided with all the relevant medical tests before commencing antiviral treatment and that his treatment be determined in consultation with an oncologist. 30. The applicant was transferred to the prison hospital the next day. On 8 April 2008, he was taken to a specialist civilian medical institution, where he underwent a tomography scan, which revealed a cyst-like lump. Doctors recommended a cancer marker blood test and an examination by an oncologist. Upon his return to the prison hospital, on 12-13 April 2008, the applicant had a consultation with a chemotherapy specialist, who concluded that he required several liver tests in view of his HCV diagnosis and further chemotherapy. The applicant was immediately offered chemotherapy at the prison hospital under the surveillance of an oncologist and a chemotherapy expert. However, he rejected that offer and on 16 April 2008 requested a transfer to a specialist medical establishment. In that connection, the applicant argued that the conditions at the prison hospital were not appropriate for chemotherapy and that the relevant specialists were not present on a permanent basis to monitor his condition. 31. On 1 May 2008 a medical panel at the prison hospital, including an oncologist, chemotherapy doctor and a liver specialist, concluded that treating both of the applicant’s diseases simultaneously was not advisable. They concluded that chemotherapy was the priority and that the antiviral treatment should be postponed. On 5 May 2008 the applicant was again offered chemotherapy at the prison hospital, but he refused and requested a transfer to the NCO. In reply to his request, by a letter of 8 May 2008, the head of social services at the prisons department asked the applicant to substantiate his request and explain the reasons for his dissatisfaction with the prison hospital. The applicant noted in a letter of 23 May 2008 that the prison hospital, inter alia, did not employ a chemotherapy specialist who was present on a daily basis and that he would therefore be left without fulltime medical supervision there. 32. According to the medical file, the applicant on 27 May 2008 again had a consultation with a chemotherapy doctor. Whilst confirming the need for chemotherapy, the doctor also noted that the applicant required various liver tests before antiviral treatment could commence. 33. In a letter of 4 June 2008 the head of social services stated that the prison hospital was adequately equipped to provide the applicant with chemotherapy under the supervision of relevant specialists. He noted that several other inmates had had such treatment at the prison hospital and there was therefore no need to transfer the applicant to a specialist civilian hospital. 34. The Government informed the Court in a letter of 4 June 2008 about the applicant’s refusal to have chemotherapy in the prison hospital. Treating it as obstructive behaviour and referring to the associated health risks, the Government asked the Court to provide them with any further indications at its earliest convenience. 35. On 7 and 8 July 2008 the applicant asked the Court, under Rule 39, to indicate to the Government to transfer him to the NCO for chemotherapy. He reiterated his argument concerning the inadequacy of the equipment at the prison hospital for providing the requisite treatment for his cancer. In support, he noted that two of the six prisoners who had had chemotherapy at the prison hospital had passed away. 36. On 10 July 2008 the Court, acting under Rule 39 of the Rules of Court, requested that the Government transfer the applicant to the NCO for more chemotherapy. On 14 July 2008 the applicant was transferred to the NCO, where he had a tomography scan, which showed that there had been no progression of his retroperitoneal lymphadenopathy in the abdominal cavity and that tumour markers were within normal limits. At the same time the scan revealed changes in his left lung and doctors recommended that he have a further examination. Following additional medical tests the applicant was diagnosed with tuberculosis (“TB”) in the left lung. On 20 August 2008 he had a resection of the upper part of the left lung. On discharge from the NCO in early September, it was noted that his condition was stable but that he required specialist treatment in a tuberculosis unit. The need for quarterly oncological check-ups was also noted. 37. On 3 October 2008 the applicant had a consultation with a liver specialist, who noted a low level of pathological activity in the applicant’s HCV and prescribed treatment with various hepatoprotectors. At the same time he was offered anti-TB treatment within the DOTS programme (Directly Observed Treatment, Shortcourse – the treatment strategy for the detection and cure of TB recommended by the World Health Organisation), which he refused. On 31 October 2008 and then on 12 January 2009 the applicant also had HCV tests. The results showed no replication of the hepatitis and accordingly no need for antiviral treatment. The applicant was prescribed continued treatment with various hepatoprotectors. 38. Over the following months the applicant was kept mainly in the prison hospital, except for short periods in December 2008, and January, March and July 2009, when he was transferred to the NCO and other civilian hospitals for check-ups. The medical records show that over that time the applicant was kept under constant medical supervision, having regular laboratory tests and examinations (blood and urine tests, ultrasound examinations, several tomography scans, determination of cancer markers, and bacteriological sputum tests), and having repeated consultations with medical specialists, including an oncologist, urologist, and an infection specialist. The medical file also shows that between 27 March and 28 April 2009 the applicant underwent a comprehensive forensic examination at the National Forensics Bureau. As a result his diagnosis was defined as follows: cancer of the right testicle at the first stage in clinical group III in a postchemotherapy and post-resection period. The applicant’s condition was described as satisfactory, with the experts noting no hepatological pathology, inactive tuberculosis bacteria and no progression of the cancer. 39. On 7 October 2009 the Government updated the Court on the treatment provided to the applicant for his various diseases. When submitting the applicant’s complete medical file for 2009, the Government maintained that the applicant’s diseases were not showing any signs of progression. They submitted that they had taken all the necessary measures for the protection of the applicant’s health in prison and asked the Court to lift the interim measure indicated on 28 March 2008. 40. By a letter of 16 June 2010, the applicant objected to being discharged from the prison hospital. He stated that the medical evidence submitted by the Government did not support the assertion that he did not require further medical treatment. He also noted that he had never been provided with any treatment for his chronic HCV and that his health would again deteriorate if he was transferred to Rustavi Prison no. 2. 41. In the light of the information provided by the parties, the Court on 8 February 2012 decided to lift the interim measures previously indicated on 28 March and 10 July 2008 under Rule 39. 42. The applicant was detained in Tbilisi Prison no. 5 between 11 August 2005 and 17 November 2006, including several transfers to the prison hospital. According to the applicant, the conditions of his detention in Tbilisi Prison no. 5 were appalling. He was kept in an overcrowded cell, where he had to take turns to sleep, getting a maximum two-three hours of sleep a day. The sanitary and hygiene conditions in the cell were bad and he was not allowed to have daily outdoor exercise. 43. The applicant mainly spent the following two years in Rustavi Prison no. 6 and the prison hospital. According to the applicant, the food provided in those establishments was so poor that his family had to regularly supply him with food at their own expense. Furthermore, he was deprived of basic items of hygiene, such as toilet paper, soap and bed linen.
| 1 |
test
|
001-144666
|
ENG
|
ROU
|
CHAMBER
| 2,014 |
CASE OF MIHAI LAURENȚIU MARIN v. ROMANIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
|
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra
|
5. The applicant was born in 1975. He is currently detained in Măgineni Prison. 6. In his initial letters to the Court the applicant stated that he had been detained in overcrowded cells which had lacked heating. 7. Starting from 2004 the applicant was detained and transferred between a number of prisons, including Poarta Albă and Măgineni Prisons. 8. The applicant was first detained in Poarta Albă Prison on 17 April 2006. The records concerning the cells the applicant had been detained in and the number of detainees he had shared the cells with during his time in detention there between 2006 and 2010 had been destroyed in accordance with the requirements of applicable domestic legislation. 9. From 2010 onwards the applicant was detained in Poarta Albă Prison from 19 February 2010 to 22 July 2013. During this period he was transferred repeatedly from Poarta Albă to Măgineni and other prison facilities as a result, among other things, of his violent behaviour towards other inmates and prison personnel. 10. In Poarta Albă Prison the applicant was detained in several cells where he was afforded between 3, 79 and 5, 03 sq. m of living space. 11. Part of the prison was fitted with its own central heating system, while the remaining part was heated by stoves. The heating was carried out based on a pre-determined schedule and on the available heating supplies and by taking into account the outdoor temperature. 12. The applicant was detained in Măgineni Prison from 5 December 2011 to date. During this period he was transferred repeatedly to Poarta Albă and other prison facilities. 13. In Măgineni Prison the applicant was detained in several cells where he was afforded between 1, 62 and 8, 02 sq. m of living space. 14. Each cell had electrical power and was fitted with individual beds, tables, chairs and benches. 15. The prison was also fitted with its own gas central heating system. The system was working properly. The cells had radiators, which ensured an appropriate temperature in the rooms during winter and when the outside temperature demanded it.
| 1 |
test
|
001-177406
|
ENG
|
NLD
|
GRANDCHAMBER
| 2,017 |
CASE OF GARIB v. THE NETHERLANDS
| 1 |
No violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom to choose residence)
|
András Sajó;Angelika Nußberger;Branko Lubarda;Egbert Myjer;Egidijus Kūris;George Nicolaou;Guido Raimondi;Helen Keller;Helena Jäderblom;Iulia Motoc;Johannes Silvis;Jon Fridrik Kjølbro;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer;Georges Ravarani;Pere Pastor Vilanova
|
8. The applicant was born in 1971 and now lives in Vlaardingen. 9. On 25 May 2005 the applicant moved to the city of Rotterdam. She took up residence in rented property at the address A. Street 6b. This address is located in the Tarwewijk district in South Rotterdam. The applicant had previously resided outside the Rotterdam Metropolitan Region (Stadsregio Rotterdam). 10. The applicant stated that no later than early 2007 the owner of the property asked her and her two young children to vacate the property as he wished to renovate it for his own use. He offered to let the applicant a different property at the address B. Street 72A, also in the Tarwewijk area. She further stated that, since it comprised three rooms and a garden, the property was far more suitable for her and her children than her A. Street dwelling which comprised a single room. However, whether the A. Street property was actually renovated or required renovation at all remains in dispute (see paragraph 83 below). 11. In the meantime on 13 June 2006, Tarwewijk had been designated under the Inner City Problems (Special Measures) Act (Wet bijzondere maatregelen grootstedelijke problematiek, see paragraph 21 below) as an area where only those households could move into housing who had been granted a housing permit (huisvestingsvergunning) to do so in relation to an identified property. Accordingly, on 8 March 2007 the applicant lodged a request for a housing permit with the Burgomaster and Aldermen (burgemeester en wethouders) of Rotterdam in order to be permitted to move to B. Street 72A. 12. On 19 March 2007 the Burgomaster and Aldermen gave a decision refusing such a permit. They found it established that the applicant did not satisfy the statutory requirements for a housing permit (see paragraph 21 below) on the basis that she had not been resident in the Rotterdam Metropolitan Region for six years immediately preceding the introduction of her request. Moreover, since she was dependent on social-security benefits under the Work and Social Assistance Act (Wet Werk en Bijstand), she also did not meet the income requirement that would have qualified her for an exemption from the residence requirement. 13. The applicant, who was represented throughout the domestic proceedings and before the Court by the same lawyer, lodged an objection (bezwaarschrift) with the Burgomaster and Aldermen. 14. On 15 June 2007 the Burgomaster and Aldermen gave a decision dismissing the applicant’s objection. Adopting as their own an advisory opinion by the Objections Advisory Committee (Algemene bezwaarschriftencommissie), they referred to the fact that housing permits were intended to be an instrument to ensure the balanced and equitable distribution of housing and to the possibility for the applicant to move to a dwelling not situated in a “hotspot” area. 15. The applicant lodged an appeal (beroep) with the Rotterdam Regional Court (rechtbank). In so far as relevant to the case, she argued that the hardship clause ought to have been applied. She relied on Article 2 of Protocol No. 4 of the Convention and Article 12 of the 1966 International Covenant on Civil and Political Rights. She also submitted that the requirement of six years’ residence in the Rotterdam Metropolitan Area, as applied to her, constituted discrimination based on income status contrary to Article 26 of the International Covenant on Civil and Political Rights. 16. The Regional Court gave a decision dismissing the applicant’s appeal on 4 April 2008 (ECLI:NL:RBROT:2008:BD0270). In so far as relevant to the case before the Court, its reasoning was as follows: “Section 8(1) of the Inner City Problems (Special Measures) Act [see paragraph 21 below] provides for the possibility of temporary restrictions on freedom of residence in areas to be indicated by the Minister [sc. the Minister of Housing, Spatial Planning and the Environment (Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer)]. The aim of these restrictions is to reverse a process of overburdening and decreasing quality of life (leefkwaliteit), particularly by striving towards districts whose composition is more mixed from a socioeconomic point of view. The restrictions are also intended actively to counteract the existing segregation of incomes throughout the city through the regulation of the supply of housing in certain districts and in so doing improve the quality of life of the inhabitants of those districts (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 2004/2005, 30 091, no. 3 [i.e. the Explanatory Memorandum (Memorie van Toelichting), see paragraph 31 below], pages 11-13). In view of the aims of the law, as set out, these temporary restrictions on the freedom to choose one’s residence cannot be found not to be justified by the general interest in a democratic society. Nor can it be found that, given the considerable extent of the problems noted in certain districts in Rotterdam, the said restrictions are not necessary for the maintenance of ordre public. The Regional Court takes the view that the legislature has sufficiently shown that in those districts the ‘limits of the capacity for absorption’ have been reached as regards care and support for the socioeconomically underprivileged and that moreover in those districts there is a concentration of underprivileged individuals in deprived districts as well as considerable dissatisfaction among the population about inappropriate behaviour, nuisance and crime. As regards the violation of Article 26 of the International Covenant on Civil and Political Rights posited by [the applicant], the Regional Court takes the view that sufficient reasons have been given (Parliamentary Documents, Lower House of Parliament, 2004/2005, 30 091, no. 3, pp. 18-20) that in so far as these measures constitute an indirect distinction, this distinction has sufficient objective justification. The Regional Court observes in this connection that the restrictions based on the Inner City Problems (Special Measures) Act imposed by the 2003 Housing By-law [of the Municipality of Rotterdam] (Huisvestingsverordening 2003) constitute only a minimal and temporary restriction on the freedom to choose one’s residence. In so finding, the Regional Court notes that it does not appear – and [the applicant] has not made out a case – that [she] cannot obtain fitting housing elsewhere in the Municipality or the Region.” 17. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). As she had done before the Regional Court, she invoked Article 2 of Protocol No. 4 to the Convention and Articles 12 and 26 of the International Covenant on Civil and Political Rights. 18. On 4 February 2009 the Administrative Jurisdiction Division gave a decision (ECLI:NL:RVS:2009:BH1845) dismissing the applicant’s further appeal. In so far as relevant to the case before the Court, its reasoning included the following: “2.3.2. The right freely to choose one’s residence, provided by Article 2 of Protocol No. 4, may, under the fourth paragraph, be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society. The right of everyone freely to choose one’s residence, laid down in Article 12 § 1 of the International Covenant on Civil and Political Rights, shall not be subject to any restrictions except those which are provided by law and are necessary to protect public order. The Administrative Jurisdiction Division observes in this connection that the concept ‘public order’ in the Covenant includes, in addition to the prevention of disorder, public safety, the prevention of crime and all universally accepted fundamental principles corresponding to human rights on which a democratic society is based. The arrangement set out in section 2.6(2) of the 2003 Housing By-law constitutes a restriction on Garib’s free choice of a place of residence. It is not disputed that this restriction is provided for by law and is inspired by the interest that society has in [ensuring] the quality of life in districts of major cities. The Administrative Jurisdiction Division finds that, considering that the area in issue is one designated under section 5 of the Inner City Problems (Special Measures) Act, the Burgomaster and Aldermen were entitled to take the view that the restriction [on freedom to choose one’s residence] is justified in the general interest in a democratic society within the meaning of Article 12 § 3 of the 1966 International Covenant on Civil and Political Rights. The area in issue is a so-called ‘hotspot’, where, as has not been disputed, the quality of life is under threat. The restriction resulting from section 2.6(2) of the 2003 Housing By-law is of a temporary nature, namely for up to six years. It is not established that the supply of housing outside the areas designated by the Minister in the Rotterdam Metropolitan Region is insufficient. What [the applicant] has stated about waiting times does not lead the Administrative Jurisdiction Division to reach a different finding. The Administrative Jurisdiction Division further takes into account that pursuant to section 7(1), introductory sentence and under b of the Inner City Problems (Special Measures) Act, the Minister is empowered to rescind the designation of the area if it turns out that persons seeking housing do not have sufficient possibility of finding suitable housing within the region in which the municipality is situated. In view of these facts and circumstances the Administrative Jurisdiction Division finds that the restriction in issue is not contrary to the requirements of a pressing social need and proportionality. The Administrative Jurisdiction Division therefore finds, as the Regional Court did, that section 2.6(2) of the 2003 Housing By-law does not violate Article 2 of Protocol No. 4 of the Convention or Article 12 of the 1966 International Covenant on Civil and Political Rights. 2.3.3. As to Garib’s argument that section 2.6(2) of the 2003 Housing By-law violates Article 26, first sentence, of the International Covenant on Civil and Political Rights because it entails an indirect distinction, the Administrative Jurisdiction Division holds as follows. Since a relatively large number of people are resident in the areas covered by that section who are dependent on social-security benefits under the Work and Social Assistance Act, section 2.6(2) can lead to an indirect distinction being made. Such a distinction is permitted if there is an objective and reasonable justification for that distinction and the difference in treatment that flows from it. Whether such is the case must be considered in the light of the question whether the making of the distinction serves a legitimate aim and is proportionate to the aim sought to be achieved, i.e. is a suitable means to achieve that aim and the aim cannot be achieved by other, less intrusive means. Section 2.6(2) of the 2003 Housing By-law is intended by the Local Council (gemeenteraad) to effect differentiation in the districts in order to increase the quality of life. Given the seriousness of the problems the solution thereof must be considered a legitimate aim. The income requirement set by section 2.6(2) of the 2003 Housing By-law is the final measure of a package of measures (pakket van maatregelen) introduced to meet that goal. It has not, or not sufficiently, been disputed that the other measures in themselves produce insufficient effect. Considering the fact that the measure is limited in time and it does not appear that Garib cannot obtain suitable housing elsewhere in the Municipality or the Region, the Administrative Jurisdiction Division agrees with the Regional Court that the Burgomaster and Aldermen, taking into account the fact that the legislature created the possibility to make use of this means by statute and explicitly and the legislature equally weighed the need to open this possibility in addition to the existing possibilities, had good reasons to take the view that, in addition to the measures already in existence, this measure too is necessary and proportionate. 2.3.4. Finally, Garib has submitted that the Burgomaster and Aldermen were wrong to find that the particular circumstances on which she relied did not constitute grounds to apply the hardship clauses. These particular circumstances are that her present dwelling is too small for her and her two children and that its poor state of repair causes her inconvenience (voor overlast zorgt). It is the policy of the Burgomaster and Aldermen to apply the hardship clauses only in untenable situations, for example in cases of violence. Like the Regional Court, the Administrative Jurisdiction Division takes the view that the Burgomaster and Aldermen were entitled to consider that there is no such situation in the present case.” 48. According to figures published by the Municipality of Rotterdam, there were 289,779 dwellings in the municipality in 2010, of which 5,954 or 2.05% were situated in Tarwewijk. The total number of dwellings in the four districts designated in 2006 – Carnisse, Hillesluis, Oud-Charlois and Tarwewijk – was 23,449, i.e. 8.01% of the total for the municipality. With the addition of Bloemhof (designated on 1 July 2010), the total came to 29,759 or 10.27%. 49. On 1 January 2010 the population of the municipality of Rotterdam stood at 587,161. Of these, 11,690 or 1.99% were resident in Tarwewijk. The total number of inhabitants of the four districts designated in 2006 was 45,654, i.e. 7.77% of the total for the municipality. With the addition of Bloemhof, the total for the designated districts came to 59,367 or 10.11%. 50. An evaluation report, commissioned by Rotterdam’s own City Construction and Housing Service (Dienst Stedebouw en Volkshuisvesting) after the first year following the introduction of the housing permit in Rotterdam, was published on 6 December 2007 by the Centre for Research and Statistics (Centrum voor Onderzoek en Statistiek), a research and advice bureau collecting statistical data and carrying out research relevant to developments in Rotterdam in areas including demographics, the economy and employment (hereafter “the 2007 evaluation report”). 51. The report noted a reduction of the number of new residents dependent on social-security benefits under the Work and Social Assistance Act in “hotspot” areas, though not, of course, a complete stop because Rotterdam residents of six years’ standing were not prevented from moving there. 52. From July 2006 until the end of July 2007 there had been 2,835 requests for a housing permit. Of these, 2,240 had been granted; 184 had been refused; 16 had been rejected as incomplete; and 395 were still pending. The hardship clause (section 8(2) of the Inner City Problems (Special Measures) Act) had been applied in 38 cases. 53. Three-quarters of the housing permits granted concerned housing let by private landlords; the remainder – 519 – had been granted through the intermediary of social housing bodies (woningcorporaties). The latter selected their tenants with due regard to the official requirements, so that refusals of housing permits with regard to social housing were unheard of. 54. Of the persons refused a housing permit, 73 (40% of all those who met with a refusal) were known to have found housing elsewhere relatively quickly. 55. The 2007 evaluation report was presented to the Local Council on 15 January 2008. On 24 April 2008 the Local Council voted to maintain the housing permit system as was and have a new evaluation report commissioned for the end of 2009. 56. A second evaluation report, also commissioned by Rotterdam’s City Construction and Housing Service, was published by the Centre for Research and Statistics on 27 November 2009. It covered the period from July 2006 until July 2009 (“the 2009 evaluation report”), during which the events complained of took place. 57. During this period, the social housing bodies had let 1,712 dwellings in the areas concerned. Since the social housing bodies could only accept tenants who qualified for a housing permit, no applications for such a permit had been rejected in this group. 58. Out of 6,469 applications for a housing permit relating to privatelylet housing, 4,980 had been accepted (77%); 342 had been refused (5%); and 296 had been pending at the beginning of July 2009. Examination of a further 851 had been discontinued without a decision being taken (13%), generally because these applications had been withdrawn or abandoned; the assumption was that many of these applications would in any case have been rejected. It followed, therefore, that if the pending cases were not taken into account, approximately one-fifth of this category of applications had been either refused or not pursued to a conclusion. 59. The reason to reject an application for a housing permit had been related to the income requirement in 63% of cases, sometimes in combination with another ground for rejection; failure to meet the income requirement had been the sole such reason in 56% of cases. 60. Of 342 persons refused a housing permit, some two-thirds were known to have managed to find housing elsewhere, either in Rotterdam (47%) or elsewhere in the Netherlands (21%). 61. The hardship clause had been applied 185 times – expressed as a percentage of applications relating to privately-let housing, 3% of the total. These had been cases of preventing squatters from taking over housing left empty (antikraak), illegal immigrants whose situation had been regularised by a general measure (generaal pardon), assisted living arrangements for vulnerable individuals (begeleid wonen), cooperative living arrangements (woongroepen), start-up enterprises, the re-housing (herhuisvesting) of households forced to clear substandard housing for renovation, and foreign students. In addition, in one-third of cases the hardship clause had been applied because a decision had not been given within the prescribed time-limit. 62. The effects of the measure were considered based on four indicators: proportion of residents dependent on social-security benefits under the Work and Social Assistance Act, corrected for the supply of suitable housing; perception of safety; social quality; and potential accumulation of housing problems: (a) It had been observed that in the areas where the housing permit requirement applied, the reduction of the number of new residents dependent on social-security benefits under the Work and Social Assistance Act had been more rapid in “hotspot” areas than in other parts of Rotterdam. In addition, the number of residents in receipt of such benefits as a proportion of the total population of those areas had also declined, although it was still greater than elsewhere. (b) In two of the areas where the housing permit requirement had been introduced, the increase in the perception of public safety had been more rapid than the Rotterdam average. Tarwewijk had shown an increase initially, but was now back to where it had been before the measure was introduced. One other area had actually declined significantly in this respect. All of the areas where the housing permit requirement applied were still perceived as considerably less safe than Rotterdam as a whole. (c) In terms of social quality, there had been improvement in most of the parts of Rotterdam where problems existed, Tarwewijk among them. It was noted, however, that the effect of the housing permit in this respect was limited, since it only influenced the selection of new residents, not that of residents already in place. (d) Housing problems – defined in terms of turnover, housing left unused, and house price development – had increased somewhat in the affected areas including Tarwewijk, though on the whole at a slower rate there than elsewhere. Reported reasons for the increase were an influx of immigrants of mostly non-European extraction (nieuwe Nederlanders, “new Netherlands nationals”) and new short-term residents from Central and Eastern Europe; the latter in particular tended to stay for three months or less before moving on, and their economic activity was more difficult to keep under review as many were self-employed. 63. Social housing bodies tended to view the housing permit requirement as a nuisance because it created additional paperwork. They perceived the measure rather as an appropriate instrument to tackle abuses by private landlords, provided that it be actively enforced and administrative procedures be simplified. Others with a professional involvement in the Rotterdam housing market mentioned the dissuasive effect of the measure on would-be new residents of the affected areas. 64. The report suggested that the housing permit requirement might no longer be needed for one of the existing “hotspots” (not Tarwewijk). Conversely, five other Rotterdam districts scored high for three indicators, while a sixth exceeded critical values for all four. 65. A third evaluation report, this time commissioned by Rotterdam’s City Development Service (Housing Department), was published by the Centre for Research and Statistics in August 2012 (second revised edition). It covered the period from July 2009 until July 2011 (“the 2011 evaluation report”). 66. The social housing bodies had let 1,264 dwellings in the areas concerned; as during the previous period, no applications for housing permits had been rejected in this group because the social housing bodies could only accept qualifying tenants. 67. There had been 3,723 applications for a housing permit relating to privately-let housing. Of these, 3,058 had been accepted (82%); 97 had been refused (3%); and 282 had been pending on 1 July 2011. Examination of 286 had been discontinued without a decision being taken (8%), generally because they had been withdrawn or abandoned. This meant that, if the pending cases were not taken into account, approximately one-tenth of applications were either rejected or not pursued to a conclusion because the household concerned had reconsidered its decision to move. 68. The reasons to reject an application for a housing permit had included failure to meet the income requirement in 81% of cases, sometimes combined with other reasons. In the remaining cases the decision to reject had been based on the excessive number of persons wishing to take up residence in a particular dwelling; the unlawful sub-letting of rooms; the absence of valid residence rights; or the fact that the person making the application was underage. 69. The individual hardship clause had been applied in 93 cases; as a proportion of successful applications for a housing permit, this amounted to just under 3%. In addition, in 55 cases objections had been lodged against refusals; of these, 5 had been successful and had resulted in the grant of a housing permit. The grounds on which the hardship clause was applied were the same as those stated in the 2009 evaluation report (see paragraph 61 above). 70. In terms of social index, Tarwewijk continued to score lowest of all the Rotterdam districts. Social cohesion was very weak, which was explained by the number of house moves but also by a general lack of participation in social life. In terms of residential environment (leefomgeving), the district was vulnerable, the problem being a lack of suitable housing. 71. Based on the same indicators and methodology as the previous report, the 2011 evaluation report concluded that the housing permit system should be continued in Tarwewijk and two other areas (including one in which it had been introduced in the meantime, in 2010); discontinued in two others; and introduced in one area where it was not yet in force. 72. On 18 July 2012 the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) sent a separate evaluation report assessing the effectiveness of the Inner City Problems (Special Measures) Act since its inception and its effects in practice to the Lower House of Parliament, as required by section 17 of that Act (Parliamentary Documents, Lower House of Parliament, no. 33 340, no. 1). The Minister’s covering letter stated the intention of the Government to introduce legislation in order to extend the validity of the Inner City Problems (Special Measures) Act. Requests to that effect had been received from a number of affected cities. It was noted that not all of the cities concerned had made use of all of the possibilities offered by the Act; in particular, only Rotterdam used housing permits to select new residents for particular areas. Appended to the Minister’s letter was a copy of the 2009 evaluation report and a letter from the Burgomaster and Aldermen of Rotterdam in which they, inter alia, confirmed the desirability of extending the indication of particular areas for applying the housing permit requirement beyond the first two four-year periods: the measure was considered a success, and a twenty-year programme involving the large-scale improvement of housing and infrastructure (the “National Programme Quality Leap South Rotterdam” (Nationaal Programma Kwaliteitssprong Rotterdam Zuid, see below)) had been started in the southern parts of Rotterdam in 2011. 73. Both the applicant and the Government have submitted a report entitled “Evaluation of the effects of the Inner City Problems (Special Measures) Act”, by the Amsterdam Institute for Social Science Research (University of Amsterdam; the report is referred to hereafter as the “Amsterdam University report”). This report was commissioned by the Minister of the Interior and Kingdom Relations, who published it in November 2015, to be put before Parliament. 74. The report comprises 16 pages of introduction, 116 pages of analysis and 40 more pages of references and appendices (tables, methodology, list of interviewees). Its conclusion reads, inter alia, as follows: “8. Conclusion [...] In the study we have distinguished between two groups: the potentially refused and the reference group. The potentially refused are members of households without any income from work who have been living in the metropolitan area for less than six years. On this basis they are not eligible for a housing permit in the designated districts of Bloemhof, Carnisse, Hillesluis, Oud-Charlois and Tarwewijk. The reference group also has no income from work, but satisfies the residence requirement. 8.1. Findings The excluded group: the potentially refused More often than the reference group, the potentially refused are young, male and live alone. More often than the reference group, the potentially refused are of non-European foreign origin, and much more often, they are from the European migrant population. Trends between 2004 and 2013 show a strong increase in the proportion of persons among the European migrant population, principally from Eastern European countries like Poland, Bulgaria and the Czech Republic. [...] Effect on the position of the potentially refused on the housing market [...] The group of the potentially refused tends to move house relatively frequently and during the period covered by this research their mobility increased (from 34.5% in 2004 to 38.1% in 2013). This high rate of mobility would appear to be a consequence of the composition of the group (relatively young persons and small households, often without children). After correction for background characteristics, it turns out that new arrivals tend to move more often, and continue to do so after the year in which they arrive. [...] Effect on the designated districts: house-moving flows and population composition [...]. Changes in the Rotterdam housing market, including as a result of the Act, have led to new patterns of spatial distribution of new arrivals without income from work. An analysis of population dynamics confirms that the increase in the proportion of potentially refused is generally the consequence of changed house-moving flows (and not of any other dynamic such as downward social mobility of the resident population). [...] Designated districts: quality of life and security 3a. Has the application of the measure under Chapter 3 of the Act had any actual effect on the quality of life and security in the designated areas? Based on a (modified) Security Index we find that during the period 2006-2013 the designated districts have shown a more negative development in their scores than the other districts of the city. This interrelation has been examined more closely by comparing the development trend in all Rotterdam districts, taking into account the district status and other changes in the housing markets. After these checks have been carried out it still appears that the districts covered by the Act display a significantly worse development than the other districts of Rotterdam. [...] In so concluding it must be observed that the Act is not necessarily the cause of these lagging developments. Changes in city policy, police and justice, education, social assistance, etc. at the neighbourhood, municipal and national level are beyond the scope of this evaluation. These findings do however suggest that the Act has not contributed to any improvement. Quality of life elsewhere [...] 3b. What development is seen in districts with a considerable influx of house-movers who do not qualify for a housing permit as regards quality of life and security? [...] In sum, it can be stated that there is a slight negative interrelation between changes in the influx of the potentially refused and the quality of life and security of the neighbourhoods. This interrelation is, however, not uniform and the causal link is not firmly established. Although the potentially refused can cause a deterioration of the quality of life and security in a neighbourhood, the interrelation may also point the other way. Because of their weak and deteriorating position on the housing market, the potentially refused will generally be limited to districts where there is a relative decline in quality of life and security.” 75. On 19 September 2011 the Minister of the Interior and Kingdom Relations (on behalf of the Government), the Burgomaster of Rotterdam (on behalf of the municipality of Rotterdam), and the presidents of a number of South Rotterdam boroughs (deelgemeenten), social housing bodies and educational institutions signed the National Programme “Quality Leap South Rotterdam”. This document noted the social problems prevalent in South Rotterdam inner-city areas, which it was proposed to address by providing improved opportunities for education and economic activity and improving, or if need be replacing housing and infrastructure. It was intended to terminate the programme by the year 2030. 76. On 31 October 2012 the Minister of the Interior and Kingdom Relations, Rotterdam’s Alderman for housing, spatial planning, real property and the city economy (wethouder Wonen, ruimtelijke ordening, vastgoed en stedelijke economie) and the presidents of three social housing bodies active in Rotterdam signed an “Agreement concerning a financial impulse for the benefit of the Quality Leap South Rotterdam (2012-2015)” (Convenant betreffende een financiële impuls ten behoeve van de Kwaliteitssprong Rotterdam Zuid (2012-2015)). This agreement provided for a review of priorities in Government financing of housing and infrastructure projects in the South Rotterdam area within existing budgets and for a once-only additional investment of 122 million euros (EUR). Of the latter sum, EUR 23 million had been reserved by the municipality of Rotterdam until 2014; another EUR 10 million would be added for the period starting in 2014. These funds would be used to refurbish or replace 2,500 homes in South Rotterdam. A further EUR 30 million would be provided by the Government. The remainder would be spent by the social housing bodies on projects within their respective remit. 77. On 19 November 2013 the Government introduced a Bill proposing to amend the Inner City Problems (Special Measures) Act (Parliamentary Documents, Lower House of Parliament 2013/2014, 33 797, no. 2). The Explanatory Memorandum stated that its purpose was to empower municipalities to tackle abuses in the private rented housing sector, give municipalities broader powers of enforcement and make further temporal extension of the Act possible. 78. The Inner City Problems (Special Measures) (Extension) Act (Wet uitbreiding Wet bijzondere maatregelen grootstedelijke problematiek) entered into force on 14 April 2014, enabling the designation of particular areas under section 8 of the Inner City Problems (Special Measures) Act to be extended the day before it was due to expire. It makes further extensions of the designation possible for successive four-year periods (section 5(2) of the Inner City Problems (Special Measures) Act, as amended). 79. With effect from 1 January 2017 the Inner City Problems (Special Measures) Act was amended further to enable the selective allotment of housing in order to limit nuisance and criminal behaviour. 80. On 27 September 2010 the applicant moved to housing in the municipality of Vlaardingen. This municipality is part of the Rotterdam Metropolitan Region. She rents her dwelling from a Government-funded social housing body. 81. The applicant states that she has found paid work. 82. As of 25 May 2011 the applicant had been resident in the Rotterdam Metropolitan Region for more than six years. She therefore became entitled to reside in one of the areas designated under the Inner City Problems (Special Measures) Act regardless of her sources of income. 83. The Government state that no renovation or building permits were sought for the dwelling in A. Street inhabited by the applicant at the time of the events complained of between 2007 and 2010 and that no such permit was applied for in the period prior to 2007 either. 84. Until 2015 only the municipality of Rotterdam made full use of the possibilities which the Inner City Problems (Special Measures) Act offered. In 2015 and 2016, three other municipalities followed suit (Nijmegen, Capelle aan den IJssel and Vlaardingen, the latter two being part of the Rotterdam Metropolitan Region).
| 0 |
test
|
001-157694
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,015 |
ABUSISI v. UKRAINE
| 4 |
Inadmissible
|
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary
|
The applicant, Ms Veronika Sergeyevna Abusisi (Abu Sisi), is a Ukrainian national, who was born in 1978. In 1998 she married Dirar Abu Sisi of Palestinian origin, born in Jordan. It appears from the available information that by 2011 the couple and their six children lived in Palestine, where Mr Abu Sisi occupied the post of technical director of a power plant in Gaza. On 27 January 2011 the applicant’s husband arrived in Ukraine and on 9 February 2011 he lodged an application for a residence permit with the Department of the Interior of the Kharkiv Region. On 18 February 2011 the applicant’s husband boarded a night train in Kharkiv bound for Kyiv, where he was supposed to meet up with Y.A., his brother. On 19 February 2011 O.Sh., an acquaintance of the applicant’s husband, notified the Railway Police that the latter had disappeared from the train and demanded a criminal investigation of his purported abduction. In a statement given to the police O.Sh. explained that on 18 February 2011 he had dropped Dirar Abu Sisi at the train station in Kharkiv. At about 10.55 p.m. on that day Dirar Abu Sisi had told him by telephone that he had been on his way to Kyiv in seat 36 of carriage 6 on train no. 63. The following day, having unsuccessfully attempted to contact Dirar Abu Sisi by telephone, O.Sh. had called Y.A. and learned that Dirar Abu Sisi had not arrived in Kyiv. O.Sh. had then managed to identify and contact A.Z., the attendant of train carriage no. 6, who had told him that at about 1.30 a.m. on 19 February 2011 two strangers had taken Dirar Abu Sisi off the train at Poltava Station without any explanation. On 20 February 2011 Y.A. also contacted the Railway Police and made a similar submission. On 21 February 2011 the applicant came to Ukraine and alerted the prosecutor’s office, the State Security Service, the National Ombudsman and other authorities to her husband’s purported abduction. On 27 February 2011 the applicant received a brief telephone call from her husband informing her that he was in custody in Petah Tikva, Israel. He provided her with the contact details of M.O., his lawyer there, who confirmed by telephone the information provided by her husband. On 16 March 2011 the State Border Control Service of Ukraine informed the National Ombudsman, who had made an enquiry on the applicant’s behalf, that the only information they had in their database concerning Dirar Abu Sisi was that he had lawfully entered Ukraine on 27 January 2011. On 17 March 2011 T.I., an investigator with the Poltava Railway Police, refused to institute criminal proceedings concerning the applicant’s husband’s purported abduction owing to lack of evidence of a crime. He noted that A.Z., the carriage attendant, had told the police that he had not noticed any criminal or other unusual activity during the trip and that the information provided by Dirar Abu Sisi’s relatives and acquaintances had been insufficient to raise a reasonable suspicion that he had been abducted or otherwise forced to leave the train. On 25 March 2011 the Ministry for Internal Affairs of Ukraine informed the National Ombudsman that, according to the information obtained from the Israeli law-enforcement authorities, Dirar Abu Sisi had been detained on suspicion of having been involved in terrorist activity as a member of Hamas. They also noted that, following an order of a competent court in Israel, the information concerning the applicant’s husband’s arrest had been classified and was not subject to disclosure. On 12 May 2011 the Security Service of Ukraine provided similar information to the applicant. On 28 March 2011 the Israeli Prison Department issued a certificate confirming that Dirar Abu Sisi was being held in Shikma Prison, Ashkelon, Israel. On 26 April 2011 the applicant complained of her husband’s purported abduction to the United Nations Human Rights Committee. On 17 May 2011 the United Nations Human Rights Committee informed the applicant that in order for her complaint to be registered, she needed to provide further substantiation and to show that she had duly exhausted domestic remedies. On an unspecified date the applicant, represented by A.K., a lawyer practising in Ukraine, instituted proceedings in the Pecherskiy District Court of Kyiv (“the Pecherskiy Court”) complaining that the General Prosecutor’s Office had failed to act in investigating her husband’s disappearance. On 22 August 2011 the Pecherskiy Court held a hearing in the applicant’s absence, having noted that she had been duly informed of the date and time, as shown in a return slip of the summons contained in the case file. The court further dismissed the applicant’s allegations against the General Prosecutor’s Office and stated that, in so far as the applicant’s submissions could be understood as challenging the refusal of the Railway Police to institute criminal proceedings, this complaint fell under the jurisdiction of the Leninskiy District Court of Poltava (“the Leninskiy Court”). The Pecherskiy Court then decided to forward the relevant parts of the case file to the Leninskiy Court for examination. On 21 October 2011 the Leninskiy Court dismissed the complaint. A copy of that decision was not provided to the Court by the applicant. In the meantime, on 19 September 2011, the applicant had contracted Y.K., a lawyer practising in Kyiv, to represent her in Ukraine. As of 20 January 2012 Y.K. was also mandated to represent Dirar Abu Sisi before the Ukrainian courts and other authorities. On 31 August 2012 Y.K., acting on Dirar Abu Sisi’s behalf, challenged the decision of the Railway Police of 17 March 2011 before the Poltava transport prosecutor. On 12 September 2012 his complaint was rejected on the grounds that the decision of 17 March 2011 had been well-founded. Following a further appeal to court, on 14 November 2012 the Poltava Regional Court of Appeal (“the Regional Court”) discontinued the proceedings on the grounds that they related to essentially the same matter which had already been finally decided by the Leninskiy Court decision of 21 October 2011. On 18 December 2012 Y.K. lodged an appeal against the decision of 21 October 2011. On 4 February 2013 the Leninskiy Court decided that the appeal of 18 December 2012 had procedural shortcomings. Among other issues, it was lodged outside the statutory time-limit without an extension request. The court gave the applicant’s counsel a period within which to rectify the issues with the appeal. A rectified appeal was lodged. In this document, Y.K. noted that he had only learned of the decision taken by the Leninskiy Court on 21 October 2011 in the course of the court proceedings instituted with a view to challenging the decision of the Railway Police of 17 March 2011. The applicant, for her part, had only learned of it from Y.K.’s electronic mail in the beginning of December 2012. On 1 April 2013 the Leninskiy Court rejected the request for an extension of the time-limit, finding that no good reason for missing it had been provided. On 29 May 2013 the Regional Court upheld the decision of 1 April 2013. On 16 July 2013 Y.K., who had not been present at the court hearing, obtained a copy of the decision of 29 May 2013. On 13 October 2013 Y.K. lodged a cassation appeal against the decisions of 1 April and 29 May 2013 with the Higher Specialised Civil and Criminal Court (“the Higher Court”). On 21 October 2013 the Higher Court refused to consider the appeal of 13 October 2013, having found that it had been lodged outside the three-month statutory time-limit which began on the date of the appellate court’s decision that was to be appealed against. It further noted that in this situation it fell to the appellant to obtain an extension of the time-limit from the Leninskiy Court in order to lodge a cassation appeal. On an unspecified date Y.K. requested that the Leninskiy Court extend the time-limit. He stated that the delay in lodging his cassation appeal had been a result of the technical difficulties in establishing contact with the applicant, who had been in Gaza, an area of constant political unrest and tension, and also a result of the delay in notifying him of the decision of 29 May 2013. On 9 December 2013 the Leninskiy Court rejected the request for extension of the time-limit for lack of sufficient reasoning. On 27 January and 9 October 2014 the Regional Court and the Higher Court, respectively, upheld the decision of 9 December 2013. The Higher Court noted, in particular, that Y.K. had failed to provide good reasons for not lodging the appeal between 16 July (when he had received a copy of the decision of 29 May 2013) and 29 August 2013 (when the three-month statutory time-limit for lodging a cassation appeal expired). According to public sources, on 30 March 2015 Dirar Abu Sisi was convicted by the Beersheba District Court of membership of a terrorist organisation and production of illegal weaponry after pleading guilty to several incriminating charges. He is still in custody in Israel. The relevant provisions of the Code of Criminal Procedure of 1960 (“the CCU”), in operation at the material time, read as follows: “An appeal against a decision of an ... investigator... refusing to institute criminal proceedings may be lodged by a person whose interests it concerns, or his or her representative, with the local district (town) court ... within seven days of the date on which a copy of the decision was received ...” “Judgments and rulings of the court of appeal taken following appeal proceedings may be reviewed in cassation proceedings. Judgments of the local courts ... other rulings (decisions) of these courts ... which impede further examination of the case, rulings of the appellate courts taken with respect to these judgments [or] rulings (decisions) ... may also be reviewed in cassation proceedings.” “Cassation appeals against the court decisions mentioned in the second paragraph of Article 383 of the present Code may be lodged within three months of the date on which they enter into force ...” “... Decisions and rulings of the appellate and cassation courts shall enter into force immediately upon their delivery, except in cases envisaged by this Code ...”
| 0 |
test
|
001-180285
|
ENG
|
TUR
|
COMMITTEE
| 2,018 |
CASE OF ÇABUK v. TURKEY
| 4 |
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
|
Ledi Bianku;Stéphanie Mourou-Vikström
|
4. The applicant was born in 1960 and at the time of lodging his application he was serving his prison sentence in the Bolu F-type prison. 5. On 3 December 2007 the applicant wrote a letter to the Ministry of Justice, in which he had praised the imprisoned leader of the PKK, Abdullah Öcalan by using the honorific “sayın”, meaning esteemed. 6. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicant was found guilty of breaching prison order by the Bolu F- type Prison Disciplinary Board (referred hereafter as “the Board”). 7. On 12 December 2007 the applicant was sentenced to 11 days’ solitary confinement on the orders of the Board, on account of his statements in the above mentioned letter. 8. On 25 December 2007 the Bolu Enforcement Judge rejected the applicant`s objection. 9. On 15 January 2008 the Bolu Assize Court upheld the judgment of 25 December 2007.
| 1 |
test
|
001-176031
|
ENG
|
LTU
|
ADMISSIBILITY
| 2,017 |
MOCKIENĖ v. LITHUANIA
| 4 |
Inadmissible
|
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Vincent A. De Gaetano;Georges Ravarani
|
1. The applicant, Ms Danutė Mockienė, is a Lithuanian national who was born in 1959 and lives in Mažeikiai. 3. The applicant was employed as an official at the Prisons Department until 31 January 2004, when she was discharged for health reasons. She was entitled to a service pension (valstybinė pensija) of 854 Lithuanian litai (LTL; approximately 247 euros (EUR)) per month from the date she left her job. 4. According to Lithuanian law, service pensions are not related to social insurance contributions but are paid from the State budget to individuals because of their merits or for service to the State (see paragraphs 19-20 below). State officials who are entitled to service pensions are also insured by the mandatory State social insurance scheme and are entitled to other types of welfare benefit, save in exceptional cases provided by law (see paragraph 21 below). 5. On 9 December 2009 the Lithuanian Parliament enacted the Provisional Law on the Recalculation and Payment of Welfare Benefits (Socialinių išmokų perskaičiavimo ir mokėjimo laikinasis įstatymas; hereinafter, “the Provisional Law”), which entered into force on 1 January 2010. According to the law’s preamble, the State budget deficit had been constantly increasing because of the economic crisis of that time and measures were needed to stabilise it (see paragraph 23 below). The Provisional Law set down rules for recalculating various welfare benefits, such as retirement pensions, disability benefits, maternity and paternity benefits, sickness benefits, unemployment benefits and service pensions, among others (see paragraph 24 below). 6. An explanatory report appended to the Provisional Law stated that the economic crisis had led to numerous legal acts being amended in an attempt to stabilise the State budget deficit – civil servants’ salaries had been reduced and there had been changes in tax law. However, further measures were considered necessary to address the crisis. The explanatory report referred to the work plan of the Government, which had set down the guidelines for addressing the economic slowdown in the face of the global financial crisis (see paragraph 22 below). It also referred to several Constitutional Court rulings adopted in 2002-2007, which had held that individuals entitled to certain welfare benefits had a legitimate expectation that they would continue to receive them; however, in the face of an exceptional situation, when the State was unable to acquire sufficient funds to continue the payment of welfare benefits, they could be temporarily reduced to the extent necessary to ensure the protection of constitutional values and the balance between the interests of individuals and those of society. 7. In line with Article 4 of the Provisional Law, service pensions were reduced by 5-20%, depending on their size, but the final amount after the recalculation could not be below LTL 650 (approximately EUR 188) a month (see paragraphs 25-26 below). 8. Article 15 of the Provisional Law stated that the law would expire on 31 December 2011, but that provision was subsequently amended several times. The Provisional Law ceased to apply on 31 December 2011 with regard to retirement pensions, disability benefits, maternity and paternity benefits, sickness benefits, and child benefit, but remained applicable with regard to service pensions until 31 December 2013. 9. Article 16 § 4 of the Provisional Law instructed the Government to prepare the necessary legal acts to establish a compensation mechanism for reduced retirement pensions and benefits for lost working capacity. It did not make any mention of a compensation mechanism for the other benefits that had been reduced (see paragraph 10 below). 10. On 29 June 2010 the Constitutional Court found that Article 16 § 4 of the Provisional Law (see paragraph 9 above) was not in compliance with the Constitution in so far as it had not required a compensation mechanism for those service pensions which had been reduced significantly (dideliu mastu; see the relevant excerpts in paragraph 27 below). 11. On 6 February 2012 the Constitutional Court issued a ruling which examined the compliance, inter alia, of Article 4 § 1 of the Provisional Law (see paragraph 7 above) with the Constitution. It reiterated that the State was justified in introducing temporary reductions in various welfare benefits when faced with an economic crisis, as long as those reductions respected the constitutional principles of the rule of law and non-discrimination, among others. The Constitutional Court concluded that Article 4 § 1 of the Provisional Law was in compliance with the Constitution because it had provided that service pensions could not be reduced by more than 20%, which could not be considered as “significant”. The absence of a compensation mechanism for service pensions reduced in line with Article 4 § 1 had therefore not breached the Constitution (see the relevant excerpts in paragraph 28 below). The ruling was published in the Official Gazette and entered into force on 21 September 2012. 12. On 14 May 2015 the Constitutional Court found that the different expiry dates for reductions in service pensions and other welfare benefits in Article 15 of the Provisional Law (see paragraph 8 above) were compatible with the Constitution in view of the “different nature and character” of service pensions compared with other benefits (see the relevant excerpts in paragraph 29 below). 13. In accordance with Article 4 § 1 of the Provisional Law (see paragraphs 7 above and 26 below), the applicant’s service pension was reduced on 1 January 2010 by approximately 15% to LTL 724 (approximately EUR 210) per month. 14. On 4 March 2011 the applicant brought a claim against the State. She requested that her service pension be restored to its pre-2010 level and that she be compensated for the period of reduced pension. The applicant also asked the court to seek a ruling from the Constitutional Court as to whether various provisions of the Provisional Law were in compliance with the Constitution. 15. On 2 November 2011 the Vilnius Regional Administrative Court adjourned the applicant’s case on the grounds that several requests concerning the compliance of the Provisional Law with the Constitution were pending before the Constitutional Court. The case was adjourned until the entry into force of the Constitutional Court’s ruling of 6 February 2012 (see paragraphs 11 above and 28 below). 16. On 13 November 2012 the Vilnius Regional Administrative Court dismissed the applicant’s claim. It held that the applicant’s service pension had been reduced in accordance with Article 4 § 1 of the Provisional Law, which the Constitutional Court had found to be in compliance with the Constitution (see paragraphs 7 and 11 above and 28 below). There were therefore no grounds to restore her pension to its pre-2010 level or compensate her for the period of reduction. 17. On 6 June 2013 the Supreme Administrative Court dismissed an appeal by the applicant and upheld the findings of the first-instance court. 18. The relevant provisions of the Constitution read: “Any law or other act that contradicts the Constitution shall be invalid. ...” “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.” “All persons shall be equal before the law, courts, and other state institutions and officials. Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views.” “The State shall guarantee its citizens the right to receive retirement and disability pensions, as well as social assistance in the event of unemployment, sickness, widowhood, loss of the breadwinner, and in other cases provided for by law.” “A law (or part thereof) of the Republic of Lithuania ... may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution of the Republic of Lithuania. The decisions of the Constitutional Court on the issues assigned to its competence by the Constitution shall be final and not subject to appeal. ...” 19. Articles 1 and 4 of the Law on Service Pensions (Valstybinių pensijų įstatymas) list the categories of people who are entitled to service pensions, such as State officials, soldiers, judges, scientists, former deportees, resistance fighters, Olympic medalists, and others; separate laws set out the specific regulations for each category (see, for example, paragraph 20 below). Article 2 provides that service pensions are paid from the State budget. Article 3 provides that a person who is entitled to several service pensions can only receive one, of his or her choice. 20. Article 1 of the Law on the Service Pensions of Officials and Soldiers (Karių ir pareigūnų valstybinių pensijų įstatymas) lists the categories of State officials who are entitled to service pensions, such as Interior Ministry service officials, professional soldiers, prosecutors, Prisons Department officials, customs and border officers, and others. Article 3 § 1 provides that officials become eligible for a service pension after serving for a certain length of time or after being discharged for health reasons related to their duties. Article 7 sets the rules for calculating the amount of service pension, linking it to length of service and the average salary received during that time. 21. Article 2 § 1 of the Law on State Social Insurance Pensions (Valstybinių socialinio draudimo pensijų įstatymas) provides that State officials are insured by the mandatory State social insurance scheme. Article 5 § 3 provides that individuals who are entitled to a State social insurance pension do not lose the right to receive service pensions or other benefits, save for exceptional cases provided by law. 22. The work plan of the Lithuanian Government, adopted in December 2008, stated that one of the main priorities of the Government was to prepare for the economic slowdown in the face of the serious global financial crisis. It set down guidelines for decreasing public spending, reforming tax law, balancing cash flows, and encouraging private businesses, among other things. 23. The preamble to the Provisional Law (see paragraph 5 above), provides: “The Parliament of the Republic of Lithuania, Acknowledging that forecasts for the State budget and the budget of the State Social Insurance Fund indicate constant increases in the deficit caused by the economic crisis in Lithuania; Emphasising the need to stabilise the increase in the deficit in the State budget and the budget of the State Social Insurance Fund and to balance cash flows; Aiming, as far as possible, to protect vulnerable groups in society and to ensure the timely payment of benefits during the economic crisis; Having regard to the fact that the Constitutional Court of the Republic of Lithuania has repeatedly held that in exceptional situations (economic crises, natural disasters, and so forth), when it is impossible to acquire sufficient funds for the payment of welfare benefits, the legal regulation concerning such benefits can be amended and the benefits temporarily reduced for the duration of the exceptional situation to the extent necessary for ensuring the protection of the vitally important interests of society and other constitutional values; Hereby enacts this provisional law.” 24. Article 1 § 2 of the Provisional Law lists the categories of welfare benefits to which it applies: “2. The present law is applicable to recipients of the following benefits: 1) service pensions awarded in accordance with the Law on Service Pensions, the Law on the Service Pensions of Officials and Soldiers, the Law on Judges’ Service Pensions, and the Provisional Law on the Service Pensions of Scientists; 2) compensation awarded in accordance with the Law on Theatres and Concert Halls; 3) annuities awarded in accordance with the Law on the President’s State Annuity, the Law on the Status of Signatories of the Act of Lithuanian Independence and the Law on Physical Training and Sport; 4) relief benefits paid to employable individuals of working age and benefits for nursing or care awarded in accordance with the Law on Relief Benefits; 5) state social insurance retirement pensions, except for recipients who have a high level of special needs; early retirement pensions; benefits for lost working capacity (disability) awarded to those who have lost 45-70% of their working capacity (disability of the second and third category) [and other welfare benefits] awarded in accordance with the Law on State Social Insurance Pensions and the Law on State Social Insurance Early Retirement Pensions; 6) sickness, professional rehabilitation, maternity and paternity benefits awarded in accordance with the Law on Sickness and Maternity Social Insurance; 7) sickness benefits awarded in accordance with the Law on Work-Related Accidents and Professional Sickness Social Insurance; 8) maternity (paternity) benefits awarded to State officials and soldiers from the State budget in accordance with the relevant legal acts; 9) child benefit awarded in accordance with the Law on Child Benefit; 10) unemployment benefits awarded in accordance with the Law on Unemployment Social Insurance.” 25. Article 3 § 1 of the Provisional Law establishes a minimum threshold (ribinis dydis) of LTL 650 (approximately EUR 188). 26. Article 4 § 1 of the Provisional Law establishes that service pensions and some other welfare benefits are to be recalculated in accordance with the rules set forth in Annex 1 of the Law. Annex 1 sets recalculation coefficients ranging from 5-20%, with a higher coefficient being applied to higher benefits. Article 4 § 5 provides that the minimum set out in Article 3 § 1 (see paragraph 25 above) is paid if the amount after the recalculation is below or equal to that level. 27. In its ruling of 29 June 2010 the Constitutional Court held: “In an exceptional situation when, inter alia, it is impossible because of an economic crisis to bring in sufficient funds to pay service pensions, the legislature, when reducing service pensions significantly, must establish ... a compensation mechanism to oblige the State, once the exceptional situation is over, to provide compensation, fairly and without an unreasonable delay, for the losses endured by such persons because of their reduced service pensions ... Therefore, according to the Constitution, compensation must be provided for losses resulting from a significant reduction in service pensions ... Article 16 § 4 of the Provisional Law ... which instructs the Government to establish a compensation mechanism only for retirement pensions and benefits for lost working capacity and not for significantly reduced service pensions, cannot be justified under the Constitution.” 28. In its ruling of 6 February 2012 the Constitutional Court held: “The Provisional Law, as stated in its preamble, was enacted to limit increases in the deficit of the State budget and the budget of the State Social Insurance Fund caused by the economic crisis. Having regard to the especially difficult economic and financial situation in the State, and aiming to protect, to the greatest extent possible, socially vulnerable groups, the Law set down the rules for the recalculation of welfare benefits, which led to the reduction of those benefits. At the same time, the Law established certain thresholds: welfare benefits which did not exceed a minimum threshold could not be reduced, whereas those which exceeded that minimum threshold could be reduced only to the extent provided for in the Law. It must be emphasised that the Provisional Law is of only temporary application. Furthermore, it instructs the Government to adopt the necessary regulations to establish a compensation mechanism for reduced retirement pensions and benefits for lost working capacity. ... The Constitutional Court has repeatedly held that service pensions, which are not explicitly provided for in Article 52 of the Constitution, differ from social insurance pensions by their nature and character. They are awarded to people for their service or merits to the State of Lithuania ... and they are paid from the State budget. Receipt of those pensions is not linked to contributions to the social insurance system, but to a certain status (such as service, merits or other relevant circumstances). The specific character of service pensions permits the legislature to establish the conditions for awarding them; the legislature’s discretion in that regard is wider than in the regulation of other pensions. The conditions for awarding service pensions can vary greatly and depend on, inter alia, the nature of the service and the State’s financial resources. The legislature can also establish a maximum number for such pensions. Nonetheless, the people who fulfil the conditions established by law are entitled to receive the corresponding service pension and the State owes them a legal obligation to pay such a pension ... The Constitutional Court has also held that the specific character of service pensions ... implies that the legislature may amend the legal regulation and reduce those pensions to a greater extent than retirement pensions or disability benefits ... The specific character of service pensions also implies that the compensation provided for losses incurred because of a reduction in those pensions may be smaller than for losses incurred because of a reduction in retirement or disability pensions ... ... As already stated above, the Provisional Law was enacted to limit increases in the deficit of the State budget and the budget of the State Social Insurance Fund caused by the economic crisis; it set down rules for the recalculation of welfare benefits which led, inter alia, to the temporary reduction of those benefits ... It must be underlined that when recalculating service pensions in line with Article 4 § 1, the pension cannot be reduced by more than 20% ... Taking into account the fact that in line with Article 4 § 1 of the Provisional Law a service pension ... cannot be reduced by more than 20%, there are no grounds to find that such a legal regulation reduces service pensions significantly. Accordingly, there are no grounds to find that the absence of a mechanism in the Provisional Law designed to compensate people whose service pensions were reduced in line with Article 4 § 1 ... is not in compliance with Articles 23, 29 and 52 of the Constitution or the constitutional principle of a State under the rule of law. ...” 29. In its ruling of 14 May 2015 the Constitutional Court held: “The State’s constitutional duty to accumulate the funds necessary for the payment of benefits in order to repeal laws which have reduced them, ... cannot be interpreted as a duty to repeal [such laws] only when it becomes possible to accumulate sufficient funds to restore all the reduced benefits. When it becomes possible to accumulate a part of such funds, the legislature, taking into account the State’s economic and financial situation, its means, and the various obligations which it has undertaken, can decide to restore benefits of a different nature and character at different times or to a different extent. When making such a decision, the legislature must comply with the Constitution and the constitutional requirements of, inter alia, a State under the rule of law, equality of persons, equity, and proportionality, and with the requirement to take into consideration the specific circumstances and differences between the legal status of the persons who will be subject to a different legal regulation. ... Accordingly, the legal regulation which established a longer period of reduction in service pensions ... than in some other welfare benefits ... is considered as a reduction in service pensions to a greater extent in view of their different nature and character in comparison with other welfare benefits (inter alia, retirement pensions and disability benefits), that is to say, as an objectively justified difference in the treatment of different categories of beneficiaries ... Therefore, there are no grounds to find that [the amended Article 15 of the Provisional Law] violated the constitutional principles of a State under the rule of law, equality of persons, equity, and proportionality.” 30. The relevant domestic law and practice concerning the length of court proceedings and available domestic remedies is summarised in Savickas and Others v. Lithuania ((dec.), nos. 66365/09 and 5 others, §§ 2139, 15 October 2013).
| 0 |
test
|
001-152255
|
ENG
|
UKR
|
CHAMBER
| 2,015 |
CASE OF ZHYZITSKYY v. UKRAINE
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6-1 - Criminal charge;Fair hearing)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
|
5. The applicant was born in 1971. He is currently serving a prison sentence. 6. On 1 May 2007, at about 1 a.m., the corpse of Ms Kh., the applicant’s wife, from whom he was separated, was discovered with multiple stab wounds. 7. Later on 1 May 2007, at about 3 a.m., the police apprehended and questioned the applicant. His questioning was documented as that of a witness. The applicant confessed to the murder of Ms Kh. 8. The applicant described the circumstances in which that confession was given as follows. He had been taken to Gorodok Town Police Station, where the police had threatened him with a view to extracting a confession. As the applicant had refused to confess, they had handcuffed his hands behind his back, pulled a black cap over his head, covering his eyes, and had taken him somewhere downstairs. The applicant had been made to sit on a chair and his feet had been tied to the chair legs. The applicant had felt something touching his head behind the ears and something being pressed against his temples, and as his body started to shake and jerk realised that electric shocks were being administered to him. This had been repeated several times. The applicant had fallen off the chair. Thereafter a police officer had unzipped the applicant’s trousers and attached electric wires to his genitals. After several electric shocks had been administered to his genitals, the applicant had agreed to confess to the incriminated murder. After saying that he could not remember certain details, more electric shocks had been administered to him. One of the police officers involved in the ill-treatment had complained to the applicant that the latter had ruined his birthday celebration and had expressed his determination to obtain a confession from him. 9. According to the Government’s account of the events, the applicant had not suffered any ill-treatment and had confessed to the murder of his own free will. 10. On the evening of 1 May 2007 the applicant’s “voluntary surrender to the police” was documented, and he was questioned again, this time as a suspect. He signed a report confirming that his right to legal assistance had been explained to him. As noted in the questioning report, at first the applicant had expressed the wish to be represented by a lawyer, but had later decided to waive his right to legal assistance. He stated during the questioning that his waiver had not resulted from any ill-treatment. 11. On the same day an expert from the Yarmolyntsi Town Forensic Expert Examination Bureau examined the applicant on the investigator’s instruction with a view to establishing whether he had any injuries, if so, what their location and nature were, and finally whether those injuries could have been caused by a struggle with the victim. 12. With effect from 2 May 2007, the applicant was represented by lawyer B., who had been contracted by his sister. He was questioned as a suspect in the presence of his lawyer and maintained his confession. He further maintained it during the reconstruction of the crime conducted on the same day with the participation of his lawyer. 13. On 3 May 2007 the expert who had examined the applicant on 1 May 2007 completed the examination report. It documented a bruise on the applicant’s left shoulder blade, a bruise on the left side of his torso, a bruise beneath the right shoulder blade, a bruise on the left shoulder and another bruise in the upper part of the left forearm, a bruise on the left wrist, a bruise on the back of the right hand and on the right wrist, and an abrasion and a bruise on the left ear. The injuries in question were assessed as having originated one or two days prior to the examination from blows inflicted by blunt objects with a limited surface, and by falling against a blunt surface. They were assessed as insignificant. In addition, the expert reported two abrasions behind the applicant’s right ear, which could have originated from blunt hard objects with a limited surface and a slightly sharp edge (such as nails). The age of these sores was assessed as one day prior to the examination. Some older bruises (three to five days old) were also discovered. 14. On 4 May 2007 the applicant was again questioned in the presence of his lawyer. He maintained his confession. As regards his injuries, he explained that he had sustained them while working on a construction site and during his fight with Ms Kh. The applicant stated that the police had not ill-treated him. 15. On the same day the Gorodok Town Court remanded the applicant in custody pending trial. During the hearing he repeated his confession and did not lodge any complaints. 16. Still on that date, 4 May 2007, the applicant was examined by a panel of doctors in the Gorodok Central City Hospital. They found him to be in good health. 17. With effect from 8 May 2007 the applicant was represented by lawyer T. instead of lawyer B. He immediately retracted his confession and complained of his ill-treatment to the Gorodok town prosecutor’s office. The applicant submitted that he had incriminated himself as a result of coercion and that he had not committed the crime in question. He alleged that he had sustained electric shocks at the hands of the police and stated that no other ill-treatment had been used on him. As to his bruises, the applicant noted that they could have been caused by his falling to the floor whilst tied to a chair. He further explained that even when represented by lawyer B., he had been afraid to tell the truth and had repeated his confession as the lawyer had recommended. 18. On 10 May 2007 the applicant was questioned in the presence of his lawyer T. While maintaining the complaint concerning his ill-treatment, he submitted that his ear had been injured earlier, prior to his encounter with the police. 19. On 7 June 2007 an additional forensic medical examination report was delivered in respect of the applicant. The question before the expert was whether the applicant had any injuries demonstrating that electric shocks had been administered to him on 1 May 2007. According to the report, the applicant had three superficial wounds to his genitals, which had been inflicted at least two weeks before the examination. The expert found it impossible to establish whether those wounds had originated from electric shocks. However, he stated that it was equally impossible to exclude that possibility. 20. On 14 November 2007 the prosecutor questioned the forensic medical expert who had examined the applicant on 1 May and 7 June 2007 (see paragraphs 11, 13 and 19 above). She submitted, in particular, that the bruises discovered on his wrists on 1 May 2007 could have been caused by handcuffs. The expert also noted that the applicant had not complained before 7 June 2007 that electric shocks had been administered to him. It was not possible to state with precision when the wounds on his genitals could have been inflicted. Their healing time could vary significantly depending on individual characteristics. Overall, the expert considered it improbable that the applicant might have sustained those injuries on 1 May 2007 and in the circumstances described by him. 21. On the same day the prosecutor also questioned the dermatologist who had participated in the examination of the applicant on 4 May 2007 (see paragraph 16 above). The doctor stated that she had examined the applicant’s genitals and that no wounds or other signs of ill-treatment had been discovered. She also noted that the applicant had not raised any complaints. 22. During the period between May 2007 and January 2008 the prosecution authorities refused on six occasions to institute criminal proceedings against the police officers involved in the alleged ill-treatment of the applicant. Five of those rulings were quashed for the incompleteness and superficiality of the investigation. As to the sixth ruling, of 29 January 2008, it is not clear whether it was eventually quashed. The report of 7 June 2007 was mentioned in only one ruling, that of 16 November 2007. The prosecutor, however, concluded that it could not be regarded as sufficient evidence that electric shocks had been administered to the applicant. 23. On 27 February 2008 the Dunayivtsi Town Court found the applicant guilty of the premeditated murder of Ms Kh. and sentenced him to thirteen years’ imprisonment. It relied, in particular, on the applicant’s “surrender to the police” and subsequent self-incriminating statements. As to his allegation of ill-treatment by the police, it was dismissed as unsubstantiated. 24. The applicant appealed. He submitted that he had incriminated himself under duress and pointed out certain discrepancies in the evidence. 25. On 14 May 2008 the Khmelnytskyy Regional Court of Appeal (“the Khmelnytskyy Regional Court”) upheld the first-instance court’s judgment. 26. The applicant lodged an appeal on points of law, in which he maintained the arguments advanced earlier in his appeal. 27. On 14 April 2009 the Supreme Court quashed the ruling of 14 May 2008 and remitted the case for fresh examination by the appellate court. It stated that the Khmelnytskyy Regional Court had not sufficiently addressed the applicant’s arguments. The Supreme Court also criticised the lower courts for formalistic examination of the applicant’s allegations of ill-treatment. It stated that no evaluation had been made of the medical evidence in the case file, according to which it could not be ruled out that his injuries had been sustained in the circumstances as described by him. 28. On 27 July 2009 the Khmelnytskyy Regional Court quashed the judgment of 27 February 2008 and remitted the case to the Gorodok Prosecutor for additional investigation. It referred to the issues pointed out by the Supreme Court. 29. On 17 March 2010 the Dunayivtsi Court pronounced a new verdict, the operative part of which was identical to that of 27 February 2008. As before, the court relied on the applicant’s initial confessions, including that of 1 May 2007, which was documented as his “voluntary surrender to the police”. The court dismissed all the defence arguments, considering them to be nothing more than the applicant’s attempts to avoid criminal liability. As to his motives for the murder, the court considered them to have been his jealousy and his wish to reunite with Ms Kh. Allegations of aggressive behaviour towards the victim in the past had been confirmed by several witnesses. Lastly, the applicant’s allegation about having suffered electric shocks was rejected as unsubstantiated. The court noted in that regard that the applicant had made his confessions in the presence of his lawyer B. 30. The applicant submitted an appeal, and later an appeal on points of law, reiterating his earlier argumentation. 31. The Khmelnytskyy Regional Court and the Supreme Court upheld the judgment of 17 March 2010 on 26 May 2010 and 24 March 2011 respectively.
| 1 |
test
|
001-155094
|
ENG
|
HRV
|
CHAMBER
| 2,015 |
CASE OF BANOVIĆ v. CROATIA
| 3 |
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
|
6. The applicant was born in 1984 and lives in Čavle. 7. On 28 February 1997 the applicant’s father, G.B., applied to the Rijeka Office of the Department for Croatian Homeland War Veterans and their Family Members (Odjel hrvatskih branitelja i članova njihovih obitelji Primorsko-goranske županije, područna jedinica Rijeka; hereinafter “the Rijeka Office”) for recognition of the status of a disabled war veteran, on the grounds that he had contracted tuberculosis and developed psychosis during his military service in 1995. 8. On 19 December 1997 G.B. died and the applicant took over the proceedings as his heir. 9. On 24 September 1998 the Rijeka Office dismissed the application. The relevant part of that decision reads as follows: “The case file was resubmitted to the Medical Committee, which established the following: - G.B ... served in the Homeland War ... from 9 October 1991 to 15 July 1992, from 15 July to 3 November 1992 and from 9 June to 19 July 1995; - during military service he contracted tuberculosis; - his mental health issues had been recognised much earlier; - the Medical Committee is of the opinion that his tuberculosis and psychosis have not been caused by his military service.” 10. The applicant lodged an appeal against that decision. On 24 February 1999 the Ministry in charge of the Homeland War Veterans affairs (Ministarstvo hrvatskih branitelja iz Domovinskog rata; later Ministarstvo obitelji, branitelja i međugeneracijske solidarnosti; hereinafter: the “Ministry”) dismissed the applicant’s appeal holding that the proceedings should have been terminated as G.B. had meanwhile died. 11. The applicant challenged that decision before the Administrative Court (Upravni sud Republike Hrvatske). 12. On 19 July 2000 the Administrative Court accepted the applicant’s administrative action, quashed the decision of the Ministry and remitted the case. 13. On 21 June 2001 the Ministry allowed the applicant’s appeal, quashed the decision of the Rijeka Office (see paragraph 9 above) but declared G.B.’s application inadmissible. It held that such application could only be lodged after a claimant had been discharged from the army, which was not the case in G.B.’s case. 14. The applicant lodged an administrative action against that decision. On 26 January 2006 the Administrative Court quashed the decision of the Ministry and remitted the case. The relevant part of that judgment reads as follows: “The administrative bodies’ decisions ... were rendered while the [old] Act on the Rights of Croatian Homeland War Veterans and their Family Members (Official Gazette nos. 108/96 and 23/01) was still in force. In the meantime, since the action was lodged and before this judgment was rendered, a new Act on the Rights of Croatian Homeland War Veterans and their Family Members entered into force and was published in Official Gazette no. 174 of 10 December 2004. Pursuant to section 158(2) of that Act, which entered into force on 1 January 2005, the proceedings instituted while the old legislation was still in force and in which the final decision has not yet been rendered should be decided under the new Act if more favourable for the Croatian Homeland War veteran. In the present case, on 1 January 2005, the date the Act on the Rights of Croatian Homeland War Veterans and their Family Members entered into force, the disputed decision of the defendant body was not final. The court therefore finds that the defendant body must decide the application in accordance with section 158(2) ... It is a specific legislative provision which requires the impugned decision to be quashed ... The defendant body shall decide, in the light of the provisions of the Act that govern the conditions and methods of recognition of disabled Croatian Homeland War veteran status, if more favourable for the claimant.” 15. On 20 May 2006 the Ministry allowed the applicant’s appeal, quashed the decision of the Rijeka Office (see paragraph 9 above) and remitted the case for re-examination. The relevant part of that decision reads as follows: “This Ministry has reconsidered the case and found that the appeal is well-founded, albeit for different reasons. Section 14 of the by-law on the Procedure before the Medical Committee for the Determination of Rights under the Act on the Rights of Croatian Homeland War Veterans and their Family Members provides that the First-Instance Medical Committee shall issue its opinion after examining the person [concerned] and the relevant medical and other documentation ... As [G.B.] was not examined in person before the First-Instance Medical Committee and cannot be examined, the first-instance body shall, in the fresh set of proceedings, terminate the proceedings relying on section 54 of the Administrative Procedure Act.” 16. On 12 September 2006 the social services department of the Primorsko-Goranska County Office of State Administration (Ured državne uprave u Primorsko-goranskoj županiji, Služba za društvene djelatnosti; hereinafter “the County Office”), which meanwhile became competent to examine the case, terminated the proceedings concerning G.B.’s recognition as a disabled war veteran on the grounds that due to his death, certain relevant facts could no longer be established. 17. The applicant appealed against that decision. On 21 April 2007 the Ministry allowed the applicant’s appeal and reversed the decision of the County Office. The relevant part of the decision reads as follows: “III: The deceased G.B ... is hereby recognised as a fourth category disabled Homeland War [veteran], with 80% damage to his body ... on the grounds that he contracted tuberculosis while defending the sovereignty of the Republic of Croatia. G.B. is entitled to: 1. Personal disability benefit ... 2. Supplementary benefit ... IV. The application for recognition of Homeland War [veteran] status on the grounds of psychosis is hereby denied. ... The case file was submitted to the competent Second-Instance Medical Committee on appeal which, in its opinion ... of 1 March 2007 established 80% permanent damage to the body ...” 18. This decision was served on the applicant in June 2007. 19. On 30 September 2011 the Supreme Court (Vrhovni sud Republike Hrvatske), in a single-judge formation, found a violation of the applicant’s right to a trial within reasonable time concerning the proceedings before the administrative authorities and the Administrative Court and awarded her compensation in the amount of 10,500 Croatian kunas (HRK). The applicant did not lodge further appeal against this decision before a panel of judges of the Supreme Court. 20. On 2 July 2007 the applicant applied before the County Office for recognition as the family member of a fallen war veteran and family disability benefit. 21. On 4 July 2007 the County Office declared the applicant’s application inadmissible as lodged out of time. The relevant part of that decision reads as follows: “Upon examining the case file it was established that the claimant lodged her application after the time-limit [set forth in] section 124 of the Act [on the Rights of Croatian Homeland War Veterans and their Family Members] had expired. Section 124(2) of the Act [stipulates that] where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and ... disability benefit must be lodged within 12 months of the date of entry into force of the Act. The Act entered into force on 1 January 2005, which means that the deadline for lodging the application expired on 31 December 2005.” 22. The applicant appealed against that decision. On 20 December 2007 the Ministry dismissed the applicant’s appeal, endorsing the reasoning of the first-instance administrative body. The relevant part of that decision reads as follows: “Upon appeal, and after examining the case file, it was established that the [first-instance] decision is valid and had a basis in law. That is to say, after examining the evidence in the case file, it was established that the claimant lodged her application ... on 2 July 2007, arguing that her father died from TB, and from the death certificate it is clear that he died on 19 December 1997. ... section 124(2) of the Act stipulates that where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and for disability benefit must be lodged within 12 months of the date of entry into force of the Act (that is to say, on 31 December 2005 at latest). As the claimant lodged her request on 2 July 2007, that is to say after the (preclusive) statutory time-limit, which cannot be prolonged upon a party’s request or of [the administrative body’s] own motion, and the appeal reasons do not influence the reasoning in this case, the appeal is hereby dismissed.” 23. The applicant challenged that decision before the Administrative Court, arguing that the decisions of the administrative bodies had been unfair and overly formalistic, effectively depriving her of her right to disability benefit. Specifically, she argued that the final decision on her father’s status had only been rendered on 21 April 2007 and had been served on her on 15 June 2007. In her view, she was only able to lodge her request after 15 June 2007, as an earlier request would have been premature and ill-founded. 24. On 17 June 2009 the Administrative Court dismissed the applicant’s action, endorsing the reasoning of the administrative bodies. The relevant part of that judgment reads as follows: “... the claimant lodged her application ... on 2 July 2007. Section 124(2) of the ... Act stipulates that where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and for disability benefit must be lodged within 12 months of the date of entry into force of the Act. As the Act entered into force on 1 January 2005 the application could have been lodged by 31 December 2005. It was not disputed that the claimant lodged her application on 2 July 2007, that is to say after the expiry of the time-limit stipulated in section 124(2) of the Act, and therefore this Court finds that the decision of the defendant body was well-founded. The claimant’s allegations in her administrative action are therefore ill-founded and irrelevant. In addition, it is noted that the claimant took over proceedings from her late father ... However, they were separate proceedings establishing the claimant’s late father’s status as a disabled Homeland War veteran, and not the proceedings establishing the status of a family member of a fallen Homeland War veteran and the right to family disability benefit ...” 25. The applicant further lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against that judgment. She reiterated her arguments from the administrative action, adding that the domestic authorities had spent ten years trying to establish her late father’s status, which could have only been used as the legal basis for her request after 15 June 2007. She also argued that her status was de facto recognised when she had been allowed to take over the proceedings after her late father, and that she was only lacking a declaratory recognition of her factual status. 26. On 3 December 2009 the Constitutional Court, endorsing the reasoning of the Administrative Court, declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. This decision was served on the applicant on 12 January 2010.
| 0 |
test
|
001-147685
|
ENG
|
SVN
|
COMMITTEE
| 2,014 |
CASE OF PUZIN v. SLOVENIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Angelika Nußberger;Vincent A. De Gaetano
|
5. The applicant was born in 1965 and lives in Kranj. 6. The applicant was detained in the remand section of Ljubljana prison from 31 May 2008 to 29 August 2008. He was again detained in the remand section of Ljubljana prison from 23 April 2009 to 27 January 2010. 7. In the period from 23 April 2009 to 24 April 2009 he was held for two days in cell 59 alone or with another detainee. From 25 April 2009 to 25 May 2009 he was held for thirty-one days in cell 99 measuring 8.44 square metres (not including a separate 1.39 square metre sanitary facility), alone with 7.05 square metres of personal space. From 26 May 2009 to 27 January 2010 he was held for eight months and three days in cell 50 measuring 8.07 square metres (not including a separate 1.23 square metre sanitary facility), alone with 6.84 square metres of personal space or with another detainee with 3.4 square metres of personal space. 8. The cell for two detainees, where the applicant was held, contained one bunk bed, one bigger and one smaller table, two chairs, two wardrobes and two 89 x 54 cm windows, which detainees could freely open or close. 9. 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. 10. 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 (Mandić and Jović, cited above, § 78). 11. 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 the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.
| 1 |
test
|
001-167124
|
ENG
|
BGR
|
COMMITTEE
| 2,016 |
CASE OF RAYKOVA v. BULGARIA
| 4 |
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Carlo Ranzoni;Khanlar Hajiyev
|
4. The applicant was born in 1959 and lives in Sofia. 5. The applicant’s husband owned a house with a yard and a garage in Sofia. 6. On 14 June 1985, by decision of the Sofia mayor, the property was expropriated with a view to constructing a school. The decision, based on section 98 (1) of the Territorial and Urban Planning Act of 1973 (Закон за териториалното и селищно устройство – “the TUPA”), stated that the applicant’s husband was to be compensated with a four-room flat and a garage in a building which the municipality intended to construct. 7. By a supplementary decision of 12 September 1986, based on section 100 of the TUPA, the mayor determined the exact location, size and other details in respect of the future flat to be provided in compensation. No mention was made however of the garage. Even though, after judicial review initiated by the applicant’s husband, in a final judgment of 18 March 1987 the Sofia City Court ordered the mayor to supplement the decision and specify the exact garage to be provided to the applicant’s husband, this was not done. 8. In 2004 the municipal authorities transferred to the applicant’s husband property to a flat different from the one described in the decision of 12 September 1986, which however he did not contest. 9. The applicant’s husband passed away in 2005. By virtue of his will, all his property was left to the applicant. 10. In a letter signed by the chief architect of Sofia and dated 8 July 2009 the applicant was informed that the decision of 12 September 1986 had not yet been supplemented to specify the garage to be provided to her because no buildings with garages earmarked for the purpose were being built. 11. In August 2009 the applicant challenged before the courts the mayor’s failure to issue a decision specifying the garage to be provided to her. In a final judgment of 23 June 2010 the Supreme Administrative Court dismissed her claim, noting that the case at hand did not concern what was defined by statute as “unlawful failure to act”, but instead the enforcement of the judgment of 18 March 1987 (see paragraph 7 above), which had to be pursued under a different procedure. 12. In parallel proceedings brought on an unspecified date in 2009, the applicant sought damages from the Sofia municipality for wrongful failure to provide her with a garage. In a final decision of 23 September 2010 the Supreme Administrative Court declared the claim inadmissible, on the ground that the courts had already established in the judgment of 23 June 2010 that there had not been any unlawful failure to act on the part of the administrative authorities.
| 1 |
test
|
001-184668
|
ENG
|
RUS
|
COMMITTEE
| 2,018 |
CASE OF VOROSHILOV v. RUSSIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Torture)
|
Alena Poláčková;Dmitry Dedov
|
4. The applicant was born in 1991 and lives in Orenburg. 5. The facts of the applicant’s ill-treatment were established in a judgment of the Promyshlenniy District Court of Orenburg of 15 December 2011, as upheld on 14 February 2012 by the Orenburg Regional Court, and are as follows. 6. At around 7 p.m. on 30 August 2009 the applicant was arrested at a bus stop by police officers of the criminal investigation unit and taken to a police station in Orenburg (УВД по г. Оренбургу). From 8 p.m. to midnight on 30 August 2009, and from 12 noon to 6 p.m. on 31 August 2009, police officers K. and M. subjected the applicant to physical and psychological violence in order to obtain a confession from him about a drug-related crime which they suspected him of having committed. 7. The facts of the ill-treatment on 30 August 2009 were established as follows. Officers K. and M. pushed the applicant to the floor and punched and kicked him numerous times in the head, face, chest, arms and legs. K. placed a plastic bag over his head, closing off his access to air, while M. held him down. As regards the ill-treatment on 31 August 2009, officers K. and M. punched the applicant numerous times in the head and threatened to detain him. 8. At 8 p.m. on 31 August 2009 the applicant was formally arrested on suspicion of possession of drugs and placed in a temporary detention facility. 9. On 2 September 2009 the applicant was released after giving an undertaking not to leave his place of residence. On the same day he sought medical help at a traumatology centre (TP no. 2). According to his medical records, he had abrasions on his forearms, a bruise under his right eye, a bruise in the left lumbar region and abrasions on his legs. 10. On 3 September 2009 the applicant made a complaint to the Orenburg regional investigative committee regarding his illtreatment. 11. On 4 September 2009 he underwent a forensic medical examination ordered by the investigation authority. According to report no. 6368, he had the following injuries: (i) a haematoma (swelling) of the soft tissues in the parietal region of the head, measuring 4 by 3 cm; (ii) four bruises of indefinite form on the right infraorbital region of the face, on his neck, on the left side of his chest and around the right iliac (hip) bone, measuring up to 4 by 3 cm each; and (iii) seventeen abrasions, some linear and some of indefinite form, on both forearms, his right hip and left lower leg, measuring from 0.8 by 0.5 cm to 2.5 by 1 cm each. The expert concluded that the applicant’s injuries had resulted from being struck repeatedly with a hard, blunt object with a limited surface area on the day of the alleged incident, and had not caused any “health damage”. Subsequent forensic medical expert reports of 4 December 2009 and 21 October 2010 came to similar conclusions. It was stated in the first of those reports that the applicant’s injuries had been caused by at least twenty traumatic blows to his body. 12. Officers K. and M. were convicted under Article 286 § 3 (a) of the Criminal Code and banned from exercising official duties for three years. They were also given a three-year suspended sentence with a three-year probation period, which required them to appear monthly before the Service for the Execution of Sentences and disclose any change of place of work or residence. 13. The following circumstances were taken into account in sentencing the police officers. The fact that officer K. had a child under 14 years old was considered a mitigating circumstance, while the fact that he and M. had committed the crime with a group of other officers was considered an aggravating circumstance. It was further taken into account that K. and M. had positive references from their places of work and residence, had no previous convictions, and had led a law-abiding way of life without committing any administrative offences for more than two years since the crime had been committed. 14. On 31 November 2009 criminal proceedings against the applicant under Article 228 § 2 of the Criminal Code (possession of large quantities of drugs) were terminated for absence of a crime, pursuant to Article 24 § 1(2) of the Code of Criminal Procedure. 15. In 2012 the applicant brought a civil claim against the Russian Ministry of Finance, seeking 2,655,936 Russian roubles (RUB) in compensation for his unlawful detention and illtreatment in police custody by K. and M. 16. On 28 June 2012 the Leninskiy District Court of Orenburg allowed the applicant’s claim in part and awarded him RUB 20,000. In determining the amount of compensation, the court found that the applicant had sustained injuries as a result of the police officers’ actions and had experienced physical and mental suffering, but that this had not caused him any “health damage”. 17. The applicant appealed against that judgment to the Orenburg Regional Court, which on 19 September 2012 increased the amount of compensation to RUB 80,000.
| 1 |
test
|
001-159052
|
ENG
|
PRT
|
COMMITTEE
| 2,015 |
CASE OF EUROATLANTIC AIRWAYS - TRANSPORTES AÉREOS, S.A. v. PORTUGAL
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Paulo Pinto De Albuquerque
|
4. The applicant is a Portuguese airline company headquartered in Sintra. 5. 6. On 20 April 2009 the applicant instituted civil proceedings in the Lisbon Civil Court against the company for the alleged failure to comply with the contract. 7. On 28 July 2009 the plaintiff lodged its submissions in reply (contestação). 8. On 30 September 2009 the applicant lodged new submissions in reply (réplica) and on 22 October 2009 the plaintiff submitted new submissions (tréplica). 9. On 28 May 2010 the Lisbon Civil Court held a preliminary hearing aiming at a friendly settlement of the parties. The conciliation procedure was not possible and on the same day the plaintif submitted an additional pleading (articulado superveniente) to which the applicant replied on 7 June 2010. On 18 June and on 30 June 2010 the plaintiff and the applicant lodged new submissions in reply, respectively. 10. On 12 July 2010 a second preliminary hearing was held and the judge gave directions setting out the matters that had already been established and those that remained outstanding (despacho saneador). 11. On 21 July and 8 September 2010 the parties submitted their evidence. 12. On 2 February 2011 the court held the first hearing. Between 2 February 2011 and 30 June 2011 the Lisbon Civil Court listed fifteen hearings. During this period, both parties submitted several documents to the court, some of which in a foreign language. 13. On 3 October 2011 the Lisbon Civil Court adopted a decision with regard to the factual basis (matéria de facto). On 13 October and on 25 October 2011, both the applicant and the plaintiff submitted their allegations of law, respectively. 14. On 19 July 2012 the Lisbon Civil Court rendered a judgment in which it ruled against the applicant and annulled the contract. 15. On 1 October 2012 the applicant appealed against the first-instance judgment and on 31 October 2012 the plaintiff submitted its allegations. 16. On 13 February 2014 the Lisbon Court of Appeal ruled partially in favour of the applicant. 17. On 20 March 2014 the applicant appealed against the decision before the Supreme Court of Justice and on 28 April 2014 the plaintiff lodged a cross-appeal. 18. On 7 October 2014 the Supreme Court of Justice adopted a judgment in favour of the applicant.
| 1 |
test
|
001-173624
|
ENG
|
HRV
|
CHAMBER
| 2,017 |
CASE OF KRUNOSLAVA ZOVKO v. CROATIA
| 4 |
No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Equality of arms)
|
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
|
5. The applicant was born in 1965 and lives in Samobor. 6. On 20 April 2009 she sustained an injury in a car accident while returning home from work. On 8 May 2009 her injury was recognised as a work-related injury by the Croatian Health Insurance Fund for Health Protection at Work (Hrvatski zavod za zdravstveno osiguranje zaštite zdravlja na radu). On the basis of her work-related injury the applicant was granted sick leave between 21 April 2009 and 3 July 2009. 7. On 26 October 2011 the applicant visited the Emergency Medicine Centre of the University Hospital Centre Zagreb (Centar za hitnu medicinu Kliničkog bolničkog centra Zagreb) owing to the pain in her neck and back. There it was established that she was suffering from a severely sore spine with a deformity. 8. The following day she visited her chosen general practitioner, who found that the applicant was unable to work and granted her sick leave starting from 27 October 2011 on the basis of an illness. 9. On 3 November 2011 the applicant lodged a complaint against her general practitioner’s assessment of the reason for her sick leave. She argued that she should be granted sick leave entitlement on the basis of the work-related injury that she had sustained on 20 April 2009. She submitted medical documentation in support of her argument. 10. Following the lodging of the complaint, the applicant’s general practitioner referred the applicant for an expert medical evaluation, enclosing her medical documentation with the request for expert evaluation. 11. On 6 December 2011 an authorised doctor of the Zagreb Office of the Croatian Health Insurance Fund (Hrvatski zavod za zdravstveno osiguranje, Područni ured Zagreb – hereinafter “the Zagreb Office”), specialised in physical medicine and rehabilitation, examined the applicant’s medical documentation and reported finding no direct causal link between the work-related injury sustained by the applicant in 2009 and the sick leave she had begun on 27 October 2011. 12. The Zagreb Office forwarded the report to the applicant and informed her of her right to seek the delivery of a written decision on the matter of her sick leave entitlement. The applicant availed herself of that right and asked for a written decision. 13. By a decision of 23 January 2012 the Zagreb Office, relying on the report of 6 December 2011, refused the applicant’s request that the sick leave from 27 October 2011 be granted on the basis of her work-related injury. It also dismissed her claim for compensation for lost salary during the period of sick leave. 14. The applicant challenged this decision before the Central Office of the Fund (Hrvatski zavod za zdravstveno osiguranje, Direkcija – hereinafter “the Central Office”), submitting further medical documentation and requesting that her sick leave be granted on the basis of her work-related injury. 15. Following the appeal by the applicant, the Central Office asked an in-house medical commission to conduct an expert examination regarding the matter. On 16 March 2012 the medical commission, consisting of three doctors of medicine, examined the applicant’s overall medical documentation and reported that her sick leave from 27 October 2011 could not be granted on the basis of the work-related injury that she had sustained in 2009. 16. On 5 April 2012 the Central Office, relying on the findings of the medical commission, dismissed the applicant’s appeal and upheld the decision of the Zagreb Office. 17. The applicant then brought an administrative action in the Zagreb Administrative Court (Upravni sud u Zagrebu). She contested the findings of the Fund’s expert medical bodies, relied on her medical documentation and alleged that it indicated a causal link between the work-related injury she had sustained in 2009 and her sick leave. She requested that she be heard and that an expert medical report on the matter be obtained. 18. On 27 June 2012 the Central Office submitted a response to the applicant’s administrative action. This response was forwarded to the applicant. 19. On 27 August 2012 the Zagreb Administrative Court held a public hearing, to which the applicant was duly summoned. She did not attend the hearing, but was represented by a lawyer. Her lawyer reiterated the arguments adduced and evidence proposed in the administrative action. The representative of the Central Office contested this. The Zagreb Administrative Court then dismissed the proposal to hear the applicant and to obtain a further expert medical report on the matter and closed the hearing. 20. On 31 August 2012 the Zagreb Administrative Court dismissed the applicant’s action as unfounded. It stressed, in particular, that two expert medical bodies of the Fund, as well as the applicant’s chosen general practitioner, had established without a doubt that the applicant’s sick leave beginning on 27 October 2011 was not linked to the work-related injury she had sustained in 2009. It also stressed that the applicant, by the submissions in her administrative action, did not manage to put into doubt the findings of the expert medical bodies and that thus there was no need to hear her or to obtain a further expert medical report on the matter. 21. The applicant lodged a constitutional complaint, alleging that the proceedings had been unfair in that she had been excluded from the procedure of commissioning and obtaining the administrative authorities’ expert reports, whereas the Zagreb Administrative Court had refused to hear her and to obtain an independent expert medical report on the matter. 22. On 6 February 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. This decision was served on the applicant’s representative on 22 February 2013.
| 0 |
test
|
001-142082
|
ENG
|
SVN
|
COMMITTEE
| 2,014 |
CASE OF BEGANOVIC v. SLOVENIA
| 4 |
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Ann Power-Forde;Helena Jäderblom
|
5. The applicant was born in 1986 and lives in Semič. 6. The applicant served his prison sentence in Ljubljana prison from 1 July 2009 to 4 November 2009. On the latter day he was transferred to Celje prison. He stayed there until 9 December 2009, when he was further transferred to Ljubljana prison, the Section Novo mesto (the Section Novo mesto). The applicant’s complaints do not relate to the conditions of detention in Celje prison. 7. In the period between 1 July 2009 and 23 September 2009 the applicant was held in the closed section of Ljubljana prison. From 1 July 2009 to 13 July 2009 he was held in cell 7 (third floor) measuring 16.8 square metres (including a separate 1.72 square metre sanitary facility). From 13 July 2009 to 17 July 2009 he was held in cell 4 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). From 17 July 2009 to 23 September 2009 he was held in cell 3 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). 8. In the period between 23 September 2009 and 4 November 2009 the applicant was held in the semi-open section of Ljubljana prison, in cell 3 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). 9. All the cells in the closed and semi-open sections contained, apart from the furniture, five sleeping places (two bunk beds and one single bed). According to the applicant, five prisoners were being held in each of the cells during his detention. The Government, however, submitted that the number varied between four and five. Each cell had one 107 x 110 cm double casement window, which the prisoners could freely open or close. 10. As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells therein, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011. 11. As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86). 12. As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government alleged that this regime had been in place for several years. However, as the applicant was transferred to the semi-open section only on a ground of overcrowdedness, while being detained there he was not granted outside visits and unsupervised leave. 13. From 9 December 2009 to 1 April 2010 the applicant was held in the closed section of the Section Novo mesto. During his detention in the Section Novo mesto the applicant was held in unit 5 measuring 58.83 square metres and including four separate rooms, namely an ante-chamber measuring 9.98 square metres, a sanitary facility measuring 1.4 square metres, a smaller room measuring 18.61 square metres with three beds and a larger room measuring 28.84 square metres with five, occasionally six beds, where the applicant was held most of the time with three other prisoners. In the ante-chamber prisoners could watch television and prepare hot beverages. All together there were seven prisoners in unit 5. They could move freely in the unit twenty-four hours per day as the inner doors were unlocked. From 3.30 p.m. to 10.00 p.m. they could move freely also in the shared corridor of the Section Novo mesto and recreation areas. The applicant spent out of the unit six hours per day: two hours outdoors in an area of 300 square metres, four hours in a shared corridor of 108.64 square metres or in shared living quarters of 59.04 square metres. The applicant could also move in an outdoor recreation yard for two hours per day. 14. During his imprisonment the applicant had three consultations with a general practitioner and one psychiatric treatment. He never requested treatment by a psychologist or dentist. 15. 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 the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.
| 1 |
test
|
001-168386
|
ENG
|
UKR
|
COMMITTEE
| 2,016 |
CASE OF KURIPKA v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)
|
André Potocki;Ganna Yudkivska;Síofra O’Leary
|
4. The applicant was born in 1964. He is currently serving a prison sentence. 5. At the time of the events the applicant had previous convictions from 1983 and 1989. He was released from prison in October 2002. 6. Following his release from prison the applicant cohabited with T.B. in the village of Blahovishchenka, in the Zaporizhzhya Region. T.B.’s sister cohabited with Sh. in the same village. 7. On the evening of 24 April 2006 Sh. visited T.B. and the applicant. A conflict arose between him and the applicant, developing into a fight which T.B. attempted to settle down. At a certain point the applicant seized a knife and stabbed Sh. in the chest. The latter was taken to hospital, but he died shortly afterwards. 8. Later that evening the applicant was taken to the police station, where he was questioned in relation to the incident. He stated that he did not know who might have stabbed the victim. The applicant was not released and remained at the police station. 9. At 2.00 a.m. on 25 April 2006 the applicant confessed that he had had a fight with Sh., and that during the fight he had grabbed a knife and stabbed Sh. twice in the chest and abdominal area. 10. At 8.00 p.m. on 25 April 2006 the investigator drew up an arrest report in respect of the applicant. According to the report, the applicant was suspected of murder. 11. On 26 April 2006 the applicant was allowed to consult a lawyer for the first time. On that day he was questioned again. He explained that he had stabbed Sh. when falling down from the blows he had received from him. The stab had been unintentional. Later on the same day, in the course of a reconstruction of the events, the applicant showed how he had been beaten by Sh. and how he had fatally stabbed him. 12. On 27 April 2006 a court ordered the applicant’s pre-trial detention. 13. On 28 April 2006 the applicant was questioned again. Before the questioning, the applicant signed a waiver of his right to a lawyer. He then made statements about the incident which were similar to those which he had made earlier. 14. On 15 June 2006 the applicant was charged with aggravated murder and questioned again in the presence of his lawyer. That day, he stated that he had acted in self-defence, as Sh. had approached him with a glass bottle. 15. On 2 August 2006 the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) commenced the trial of the applicant. During the trial, he stated that he had fatally stabbed Sh., who had approached him with a glass bottle, while trying to defend himself. 16. On 8 August 2006 the court found the applicant guilty of aggravated murder and sentenced him to life imprisonment. The court relied on the material, oral, expert and documentary evidence examined during the hearings. It referred in particular to the applicant’s self-incriminating statements made on 25 April 2006 and later. His allegation that he had acted in self-defence was rejected as unsubstantiated. 17. The applicant and his lawyer appealed, claiming that the conviction was unfounded and that his right to a lawyer had not been properly ensured. 18. On 21 December 2006 the Supreme Court considered the applicant’s case and upheld the conviction. However, having regard to his behaviour immediately after the incident, namely the efforts he had made to provide the victim with medical assistance, it reduced the sentence to fifteen years’ imprisonment. 19. On three occasions between August and October 2006 the Court of Appeal allowed the applicant to have family visits. 20. On 16 August 2006 the applicant lodged an application with the Court of Appeal, asking for permission to correspond with his relatives. His application was registered by the SIZO mailing service under number 2/k517. No reply followed. 21. On 2 October 2006 the applicant made the same application, which was registered by the SIZO mailing service under number 2/k-579. No reply followed. 22. On 12 October 2006 the applicant complained to a prosecutor in that regard, but received no response.
| 1 |
test
|
001-153352
|
ENG
|
UKR
|
CHAMBER
| 2,015 |
CASE OF ORLOVSKIY v. UKRAINE
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
|
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
|
5. The applicant was born in 1968 and, at the time of the most recent communication from the applicant, was detained in Odessa. 6. On an unspecified date in 2006 K. mentioned in a confession given whilst being questioned by the police that the applicant had participated in the murder of Z., a gang member, in 2002. 7. On 28 July 2006 the applicant was stopped on the motorway and arrested by police, who also seized his car. 8. According to the applicant, the reasons for his arrest were not clearly explained to him. Between 28 July and 1 August 2006 he was transferred to various police units and questioned. 9. On 30 July 2006 the police found explosives in the car which had been seized from the applicant upon his arrest. 10. On 1 August 2006 criminal proceedings were instituted against the applicant on suspicion of the illegal possession of explosives and the murder of Z., and an arrest report was drafted and countersigned by the applicant. 11. On 4 August 2006 the Kyivskiy District Court of Odessa (“the Kyivskiy Court”) remanded the applicant in custody for ten days pending collection of information concerning his person. 12. On 10 August 2006 the applicant was formally charged with possessing illegal explosives and taking part in the murder of Z., which had been committed by an organised gang in 2002. 13. On 11 August 2006 the Kyivskiy Court remanded the applicant in custody for two months, to be counted from 28 July 2006. The court noted that the gravity of the charges against the applicant constituted a sufficient basis for the fear that he would abscond or interfere with the investigation if released. 14. On the same day the court made a separate ruling drawing the attention of the Minister of the Interior to breaches of the applicant’s rights whilst effecting his arrest. It noted, in particular, that the applicant’s undocumented detention between 28 July and 1 August 2006 was unlawful. The court asked the Minister to investigate the incident. The case file does not show any follow-up. 15. The applicant, acting through his lawyer, appealed against the detention order. He submitted that he had good references from his employer, had a family including three children who were minors, and that he had been suffering from health problems. 16. On 17 August 2006 the Odessa Regional Court of Appeal (“the Odessa Court of Appeal”) rejected the applicant’s appeal. The court noted, in particular, that taking into account the gravity of the charges against the applicant, together with the fact that he resided in Crimea ‒ whereas the investigative authority was located in Odessa ‒ there was reason to fear that he might abscond or interfere with the investigation if released. 17. On 25 September 2006 the Odessa Court of Appeal extended the applicant’s detention until 28 February 2007, stating in general terms that the applicant might abscond, pressure witnesses or interfere with the investigation if released. 18. On 23 February 2007 the applicant, represented by his lawyer, lodged an objection against the investigative authority’s request to extend his detention. He reiterated that he had a permanent address, a family with three children who were minors, and that prior to his arrest he had been engaged in lawful business activity. He referred to the aggravation of his ulcers and stated that during the time he had been held in custody, no investigative action involving him had been initiated and no new evidence of his involvement in any crime had been discovered. 19. On 26 February 2007 the Odessa Court of Appeal allowed the investigative authority’s request and extended the applicant’s detention until 28 April 2007, giving the same reasons as in its decision of 25 September 2006. 20. On 20 April 2007 the applicant, represented by his lawyer, and citing the same reasons as before, again brought an objection against the investigative authority’s request to extend his detention. 21. On 24 April 2007 the Supreme Court further extended the applicant’s detention until 22 August 2007, stating that additional investigative action needed to be taken and there were no reasons to release the applicant. 22. On 9 August 2007 the applicant was charged with participation in several other offences committed in a gang, including murders, abductions, and torture. 23. On 14 August 2007 the Supreme Court granted the investigative authority’s request to extend the detention of six purported criminal gang members, including the applicant, until 17 February 2008. It noted the gravity of the charges, the fact that the investigation related to thirty different episodes of alleged crimes committed by a criminal association and that the investigative authorities needed more time to finish their work. 24. According to the Government, during the pre-trial investigation the authorities interviewed in total 17 defendants, 21 victims and 275 witnesses, conducted 30 face-to-face confrontations, 37 identification parades, 20 reconstructions and 14 seizures, obtained 66 experts’ reports and carried out a number of other investigative actions. 25. On 18 December 2007 the applicant was presented with the final bill of indictment. In addition to previous charges, the applicant was also indicted for participation in an armed gang (banditry). 26. On 24 December 2007 the investigation was completed and the applicant and his co-defendants were given time to study the case file. 27. On 24 January 2008 the Kyiv City Court of Appeal (“the Kyiv Court of Appeal”) extended the applicant’s detention until 20 August 2008, noting the gravity of the charges, confirming that the decision to place him in detention was correct, and referring to the need to complete the study of the case file. 28. On 14 August 2008 the applicant lodged an objection against the investigative authority’s request to extend his detention. He argued, in particular, that the reason that familiarisation with the case file materials was taking so long was poor procedural organisation. 29. On 15 August 2008 the Kyiv Court of Appeal extended the applicant’s detention until 20 October 2008, citing the same reasons as in its decision of 24 January 2008. 30. On 9 October 2008 the applicant notified the prosecutor’s office that although there was some case file material he had not yet seen, he waived his right to further study and asked to be released pending trial. 31. On 12 October 2008 the General Prosecutor’s Office promised to send the applicant the relevant procedural forms but stated that there were no grounds for his release. 32. On 14 October 2008 the applicant again objected, in similar terms, to the prosecution’s request for extension of his detention. 33. On 15 October 2008 the Kyiv Court of Appeal allowed the prosecution’s request, extending the applicant’s detention until 20 December 2008, and stating, in addition to reasons given previously, that the defendants needed time to complete the study of the case file. 34. On 16 December 2008 the Kyiv Court of Appeal further extended the applicant’s detention until 19 February 2009, citing the same reasons. 35. Between 19 February and 18 March 2009 the applicant remained in detention. 36. On 18 March 2009 the Odessa Court of Appeal, acting as the trial court, held a preparatory hearing in the applicant’s and his co-defendants’ case. It rejected the applicant’s request for release, lodged on the same day, stating that there was no basis for granting it. 37. On 15 June 2011 the applicant, represented by his lawyer, asked to be released pending trial, arguing that his health was deteriorating, that there was insufficient evidence against him, that because all the witnesses and victims had already testified at trial the applicant would not be able to pressure them, and lastly that he had good references, two dependent children who were minors, and a permanent address. 38. On 15 June 2011 the Odessa Court of Appeal rejected the applicant’s request, noting the gravity of the charges against him and stating that the trial was not complete and that there was no reason to release him. 39. According to the Government, a total of 151 hearings were held in the case by the Odessa Court of Appeal, a number of which were adjourned, some due to the failure of one of the defendants ‒ who was at liberty ‒ to attend. 40. On 18 October 2011 the Odessa Court of Appeal found the applicant guilty of murder, kidnapping, and banditry and sentenced him to fourteen years’ imprisonment with confiscation of his property. 41. According to the applicant, on 30 July 2013 the Higher Civil and Criminal Court, on appeal from him and his lawyer, upheld his conviction and amended the judgment of the trial court, rectifying the domestic legal classification of one of the offences. 42. On 16 October 2006 the General Prosecutor’s Office rejected the request for a meeting with the applicant lodged by I.O., the applicant’s wife. The General Prosecutor’s Office noted there was “no indication that a meeting between the relatives and [the applicant] was necessary” at the time. 43. According to the applicant, he was denied the possibility of meeting or corresponding with his family for the entire period of his pre-trial detention. 44. On 25 May 2009 the applicant lodged a request with the Odessa Court of Appeal for permission for a visit from his family, namely his mother, wife and children. He stated that throughout the period of his pre-trial detention the investigative authorities had rejected his requests for family visits without sufficient justification. 45. According to the Government, the applicant’s request of 25 May 2009 was granted but the applicant’s relatives did not avail themselves of it and did not visit the applicant.
| 1 |
test
|
001-166922
|
ENG
|
RUS
|
CHAMBER
| 2,016 |
CASE OF ABDULKHADZHIYEVA AND ABDULKHADZHIYEV v. RUSSIA
| 4 |
Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+2-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2-1 - Life;Effective investigation;Article 2 - Right to life);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property)
|
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
|
5. The applicants were born in 1953 and 1957 respectively and live in the village of Savelyevskaya, in the Naurskiy District of the Chechen Republic. The second applicant is the first applicant’s brother-in-law. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. At the material time, a counterterrorist campaign – involving intense military clashes between federal troops and local rebels – was taking place in the Chechen Republic. The law-enforcement bodies and the courts were not functioning. Upon the arrival of the military in Savelyevskaya, the local residents did not flee but remained in their homes. The village and the area around it were under the control of federal troops that were stationed in the vicinity. 8. At the beginning of October 1999 the outskirts of the village came under artillery fire, which forced the residents to seek the military’s permission to evacuate their cattle. 9. After permission to evacuate the cattle was obtained, on 8 October 1999 (in the documents submitted the date was also referred to as 8 October 2000), at around noon, the applicants and their neighbours, Mr R.M. and Mr M.R., arrived at the agreed spot at a copse of trees next to Savelyevskaya and approached the Russian federal servicemen who were stationed in the vicinity. The servicemen agreed to let them pass through to the field where their cattle were pastured to retrieve them. However, after the applicants, Mr R.M. and Mr M.R., had walked about several dozen metres away in the direction of the pasture, the servicemen opened fire on them. As a result, both applicants received wounds to the upper extremities (верхние конечности) and fell on the ground. Having witnessed the attack, a civilian, Mr D., tried to approach the servicemen, but was shot dead in the presence of the applicants and Mr M.R. Meanwhile, Mr R.M. managed to crawl away and inform the local authorities about the incident. 10. Both applicants and Mr M.R. remained on the ground for several hours; each time they tried to get up they were subjected to gunfire. Then three military servicemen approached, blindfolded them and took them to the premises of military unit no. 54262. In the meantime, after Mr R.M. informed the authorities of the incident, the head of the local administration, Mr Kh.S., arrived at the military unit, spoke to the servicemen and had the detainees released. As a result of the injuries she had sustained during the attack the first applicant was left with a permanent disability of the third degree. 11. The applicants’ cattle remained under the control of the servicemen and were never returned. According to the first applicant, as a result of the incident she lost sixteen head of cattle and the second applicant four head of cattle. In November 1999, after military unit no. 54262 had changed its stationing location from the vicinity of Savelyevskaya to a site elsewhere, the applicants and their relatives found the remains of seven cows whose meat had been consumed by the military unit; nine head of cattle were missing completely. 12. In July 2000, as soon as the local law-enforcement bodies had begun functioning again in their district, the applicants lodged an official complaint in respect of the events of 8 October 1999 with the local police (see paragraph 15 below). Towards September 2000 the law-enforcement bodies in other parts of Chechnya started to function again. 13. In support of their account of the events of 8 October 1999 the applicants furnished the Court with statements from witnesses Mr M.R. and Mr R.M., both dated 10 July 2008. 14. The Government did not contest the applicants’ account of the attack against them on 8 October 1999 and the loss of their cattle, but stressed that the perpetrators had not been identified. In their observations on the admissibility and merits of the application of 9 April 2012, they stated, in particular, the following: “... the damage to the applicants’ health occurred as a result of unidentified persons opening fire on them on 8 October 1999 in the village of Savelyevskaya in the Naurskiy District. After the shooting the unidentified persons stole cattle belonging to the applicants ...” 15. On 17 July 2000 the first applicant complained in writing of the infliction of bodily injuries and the theft of her livestock to the Naurskiy district temporary department of the interior (Наурский Временный Отдел Внутренних Дел) (hereinafter “the Naurskiy VOVD”). 16. In her complaint she described the circumstances of the attack and stated, in particular, that she had been wounded by military servicemen, who had then blindfolded her and taken her and two other men to the premises of their military unit. She further stated that after her release the cattle had remained in the hands of the military and that all her efforts to recover them had been to no avail. 17. On 20 July 2000 the investigators questioned the first applicant, who stated that on 8 October 1999 she, the second applicant and Mr M.R. had gone to the pasture where cattle had been grazing, including a number of cows belonging to her. On the way there, at around noon, she had seen one of her cows lying shot and dying on the ground. The first applicant had approached her cow, but had been stopped by a group of military servicemen in light-coloured camouflage uniform, armed with machine guns, standing next to an armoured personnel carrier (hereinafter “the APC”). The first applicant had asked for their permission to drive the cattle home; one of the servicemen had gone to the APC and spoken to someone on the radio. After that he had returned and said that the applicants and Mr M.R. could proceed and collect their cattle. The applicant had walked just several metres away when she and her two companions had been subjected to gunfire, as a result of which she had been wounded in the left arm and the second applicant in the right arm. They had fallen to the ground and stayed there for about three to five hours; each time they had tried to get up, shots had been fired in their direction. Then three military servicemen had approached them, ordered them to put their hands behind their heads, blindfolded them and taken them in the APC to the premises of military unit no. 54262. The applicant provided the investigators with a detailed description of those three servicemen’s appearance. At the military unit the applicants had been given medical assistance. The applicant had asked the unit commander to drive her cattle over to pasture land lying closer to the village. The commander had promised to do that but he had not kept his promise and her cattle had gone missing. Then the head of the village administration had arrived and taken the applicants and Mr M.R. home. The applicant provided the investigators with a detailed description of the unit commander. She further stated that after the military unit had left the place where it had been stationed, she had gone to the field and found an envelope with the address of one of the servicemen who had been stationed there and that she still had the envelope and could provide it to the investigators. Subsequently the unit commander, Vadim, had visited her at home with a nurse to assist with the treatment of her wounded arm. Between August 1999 and February 2000 the applicant had not been able to seek official medical assistance, as hospitals in Chechnya had not been functioning. In February 2000, when the local hospital had resumed its activities, she had gone there and sought medical assistance for her wounded arm; she had stayed in the hospital for one month but had been left with a disability. 18. On 20 July 2000 the investigators questioned the second applicant and Mr M.R., both of whom stated that on 8 October 1999 they and the first applicant had gone out to drive their cattle home. On their way to the pasture they had met military servicemen who had given them permission to take their cattle home. However, after they and the applicant had then walked a dozen metres away from the servicemen the latter had opened fire. The first applicant had fallen to the ground, bleeding. Then the second applicant and Mr M.R. had screamed, asking the servicemen to stop firing, but to no avail. As a result, the second applicant had been shot in the upper extremities. Then they had fallen to the ground and after several hours had been found by the servicemen and taken to the military unit. 19. On 12 October 2000 the Naurskiy VOVD opened criminal case no. 30471 on account of the infliction of minor bodily injuries on the applicants (Article 112 § 2 of the Criminal Code). The decision stated: “... on 8 October 1999 during the day unidentified persons intentionally inflicted bodily injuries on [the applicants] ...” 20. On 20 October 2000 the investigators granted the first applicant victim status in the criminal case and questioned her again. She reiterated her earlier statement (see paragraph 17 above) and added that the unit commander’s name had been Vadim and that he had had the rank of lieutenant-colonel. She also provided a detailed description of her disappeared cattle and reiterated that as a result of the incident she had lost sixteen cows. 21. On 20 October 2000 the investigators seized the envelope found by the applicant on the former premises of the military unit (see paragraph 17 above). 22. On 23 October 2000 the investigators granted the second applicant victim status in the criminal case and questioned him again. His statement was similar to that of the first applicant (see paragraph 17 above). In addition, he stated that after the servicemen had taken him, the first applicant and Mr M.R. to the military unit’s premises, they had provided him with medical assistance for his wounded arm and that the unit commander, a lieutenant-colonel named Vadim, had given him his apologies for his soldiers’ actions. Subsequently, the officer had visited him at home with a nurse to assist with the treatment of his wounds, as the local hospitals had not been functioning at that time. The second applicant also provided the investigators with a detailed description of his four cows, which had disappeared as a result of the incident. 23. On 24 October 2000 the investigators granted Mr M.R. victim status in the criminal case and questioned him. His statement concerning the incident was similar to the ones given by the applicants (see paragraphs 17 and 18 above). In addition, he provided a detailed description of the three servicemen who had approached him and the applicants after the shooting. He also stated that the commander’s name had been Vadim and that his military rank had been that of lieutenant-colonel. Two days after the events, on 10 October 1999, he had gone to the place of the incident and found the corpses of two of his cows, which had been shot. Two other cows had gone missing. 24. On 24 October 2000 the investigators questioned two of the first applicant’s neighbours, Ms S.G. and Ms P.Kh., both of whom stated that they had not witnessed the incident in October 1999, but that they had been told that the first and second applicants had been shot and wounded by the military servicemen and one man had been shot dead by them and that as a result of the incident the applicants’ cattle had been lost. 25. On 30 October 2000 an expert examination ordered by the investigator took place; the examination identified the scars on the first applicant’s left forearm as likely to have resulted from a perforating firearms wound in the circumstances described by her and categorised them as bodily harm of “medium gravity”. 26. On the same day, 30 October 2000, the second applicant was also examined by the expert. The examination identified the scars on his right forearm and the fingers of the left hand as likely to have resulted from perforating firearms wounds and categorised them as bodily harm of “minor gravity”. 27. On 20 and 23 October 2000 respectively both applicants were granted victim status in the criminal case. The relevant decisions stated, amongst other things, that: “... on 8 October 1999 unidentified persons ... inflicted bodily injuries on [the applicants] and stole [their] cattle ...” 28. Two months later, on 12 December 2000, the investigation was suspended for failure to identify the perpetrators. The applicants were not informed of that suspension. 29. On an unspecified date between January 2001 and May 2005 the first applicant complained to a supervising prosecutor about the delays in the investigation. On 29 July 2005 the Naurskiy VOVD replied to the complaint, stating that the investigation had been suspended for failure to identify the perpetrators. 30. On an unspecified date in 2005, the first applicant also lodged an official complaint about his lack of access to the investigation file. On 28 December 2005 the Naurskiy district prosecutor’s office (hereinafter “the district prosecutor’s office”) replied to her, stating that she could access the file only upon the completion of the criminal investigation. 31. In 2005 the first applicant lodged several complaints about the delays in the investigation with the Prosecutor General’s office, which forwarded them to the district prosecutor’s office. The complaints remained unanswered. 32. It appears that as a result of the first applicant’s complaints, the investigation was resumed on 18 January 2006 and the applicants were informed accordingly. 33. On 28 January 2006 the investigators examined the envelope seized from the first applicant (see paragraph 21 above). As a result, the name and the address of officer B. (to whom it had been sent at an address in the town of Kostroma) were established. 34. On 6 February 2006 the investigators examined the crime scene in the vicinity of the village of Savelyevskaya. No evidence was collected. 35. On 20 February 2006 the investigators again questioned the first applicant, whose statement was similar to the ones she had given previously (see paragraphs 17 and 20 above). 36. On 22 February 2006 the investigators questioned the second applicant, who reiterated his earlier statements (see paragraphs 18 and 22 above). In addition, he stated that the body of the man who had been shot dead during the incident had been recovered by the villagers about a week after the events and buried shortly afterwards. 37. On 22 February 2006 the investigators questioned Mr Z. Kh., who stated that in October 1999 he had assisted in negotiating the applicants’ and Mr M.R’s release from the premises of the military unit. Mr Z. Kh. stated that he did not know what military unit it was. 38. On 22 February 2006 the investigators questioned Mr Kh.S., who stated that since 1999 he had been the head of the local administration. His statement was similar to those given by the applicants. In addition, he stated that the commander of the military unit had promised to drive the cattle back to the village, but that this had not happened. 39. On 22 February 2006 the investigators again questioned Mr M.R., whose statement was similar to the ones he had previously given (see paragraphs 18 and 23 above). 40. On 26 February 2006 the investigators terminated the investigation of criminal case no. 30471 because of the expiry of the time-limits for prosecution under Articles 78 and 112 of the Criminal Code. 41. On the same date (26 February 2006) the investigators refused (in the light of the expiry of the time-limit) to initiate a new criminal investigation into the injuries sustained by the applicants on 8 October 1999. 42. On 17 March 2006 investigators in Kostroma questioned officer B., who stated that in October 1999 he had been serving in military unit no. 54262, which had been stationed in the Naurskiy District, Chechnya. He had no information concerning the attack on the applicants and had no idea who had been the commander of the military unit at the material time. Officer B. stated that in December 2000 (while he had been in Chechnya) he had been questioned about the incident, but he could not remember by whom and under what circumstances. 43. On 26 April 2008 the head of the Naurskiy VOVD overruled the decision to terminate the criminal investigation as unsubstantiated and premature and ordered that the proceedings be reopened and the case file be transferred to another law-enforcement body, in accordance with the rules of jurisdiction. The reasoning for the decision stated, inter alia, the following: “... The investigation established that an unidentified person had opened fire and wounded in the arm [the first and the second applicants], causing them medium and minor gravity bodily harm, respectively [...] ... it was also established that unidentified persons had committed the theft of sixteen cows belonging to [the applicants] and of two cows belonging to Mr M.R. On 26 February 2006 the investigation of the criminal case was terminated for failure to identify the perpetrators. The examination of the contents of the criminal case file demonstrated that the victims [the applicants] had been shot at with firearms, from a distance ... and the location of their wounds showed that life-threatening damage could have been caused to them ... In addition, according to the information in the case file, Mr D. had been shot and killed on the spot in [the applicants’] presence. In the light of the above, the investigation of the criminal case failed to establish in full whether an attempt on the lives of [the applicants] had been made by the unidentified persons who [were responsible for] their gunshot wounds ...” 44. On 29 April 2008 the re-opened criminal case file no. 30471 was forwarded to the Naurskiy Inter-district Investigations Department of the Chechnya Prosecutor’s office (hereinafter “the investigations department”) for investigation. 45. On 7 May 2008 the investigations department refused to institute criminal proceedings, noting that: “... [the applicants] had been injured in non-vital parts of their bodies, which was confirmed by expert examinations. Therefore, there are no grounds for thinking that the alleged perpetrators intended to commit ... ‘attempted murder’,.. as argued by [the applicants] ...” The decision did not mention anything about the applicants’ cattle. 46. On 14 May 2008 the investigations department adopted a decision terminating the investigation in criminal case no. 30741 because of the expiry of the time-limits for prosecution. 47. From the documents submitted it appears that on 10 July 2008 the supervising prosecutor overruled the above decision to terminate the criminal investigation as unsubstantiated and premature. 48. On 14 March 2012 the deputy Chechnya district prosecutor overturned the investigations department’s decision of 7 May 2008 to refuse to open a criminal case (see paragraph 45 above) as unlawful and unsubstantiated. The applicants were informed thereof. 49. On the same date (14 March 2012) the deputy Chechnya prosecutor also ordered that the criminal case file be sent to the Chechnya Investigations Committee for further investigation. The decision criticised the investigators’ failure to take basic steps and stated, amongst other things, the following: “... at the same time, the investigation established that the shooting had been aimed at them [the applicants, Mr M.R., Mr R.M. and Mr D.] and had been carried out with automatic firearms simultaneously, from the same place next to the forest; as a result [the applicants] had received gunshot wounds of varying gravity and [Mr D.] had been shot dead. Therefore, the above information provides grounds for concluding unequivocally that the unidentified person had the clear intention of killing [the applicants and Mr D.]; ... thus, the actions of the unidentified person should be deemed to constitute murder under parts 1 and 2 (subparagraph “a”) of Article 105 of the Russian Criminal Code, and the case file in respect of criminal case no. 30471 should be transferred to the Chechnya Investigations Committee for investigation and joined with criminal case no. 60012 [concerning the killing of Mr D.]. In addition, up until the present, no request for information concerning the exact place where military unit no. 546262 was stationed has been sent. Neither has any request for information concerning the possible stationing of a military unit next to Savelyevskaya in the Naurskiy District been forwarded. The military commander of the Naurskiy District, officer A.S. Kalugin, has not been questioned about the circumstances of the incident.” 50. As can be seen from the documents submitted, the investigation is still pending. 51. On 12 April 2008 the first applicant lodged a complaint before the Naurskiy District Court (hereinafter “the District Court”) challenging the decision of 26 February 2006 to terminate the investigation. She argued, inter alia, that she had been both the target of an attempted murder and a victim of theft and asked for the case to be transferred to the Military Prosecutor’s Office for a proper investigation. 52. On 26 April 2008, shortly before the scheduled start of the first-instance court hearing (see paragraph 43 above), the prosecutor quashed the decision of 26 February 2006 and as a result, by a decision of 28 April 2008 the District Court rejected the first applicant’s complaint as groundless. 53. On 19 June 2008 each applicant lodged a complaint before the District Court challenging the investigations department’s refusal of 7 May 2008 to initiate a criminal investigation. 54. On 10 July 2008 the District Court rejected the complaints, as the impugned decision had already been quashed earlier on the same date (see paragraph 47 above). 55. On an unspecified date between January and March 2009 the applicants lodged a complaint before the District Court about the defects in the investigation and the investigators’ failure to act with expedition. 56. On 8 April 2009 the District Court examined and partly rejected their complaint. It ruled that the investigators could only be criticised for their failure to inform the applicants in a timely manner about the procedural decisions in the criminal case. The decision stated, among other things, the following: “... the court has no legal rights to impose obligations on the investigation bodies concerning the order and direction of the conduct of the investigation. ... The complaint should be allowed only in part and only in so far as the investigator ... failed to inform [the applicants] in a timely manner about the decisions taken in the case ...”. 57. On 13 May 2009 this decision was upheld by the Supreme Court of the Chechen Republic on appeal.
| 1 |
test
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001-181306
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ENG
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HRV
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ADMISSIBILITY
| 2,018 |
MLADOST TURIST A.D. v. CROATIA
| 4 |
Inadmissible
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Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
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1. The applicant, Mladost Turist a.d. (hereafter “the applicant company”), is a commercial (joint stock) company incorporated under Serbian law, with its seat in Belgrade. It was represented before the Court by Ms R. Andrić, an advocate practising in Belgrade. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. The Government of Serbia, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court), did not avail themselves of this right. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The legal system of the former Socialist Federal Republic of Yugoslavia (SFRY) distinguished between two types of ownership: private ownership (privatno vlasništvo) and social ownership (društveno vlasništvo). While owners of property in private ownership were private individuals (natural persons) and some private legal entities called “civil legal entities” (građanske pravne osobe) such as foundations, associations and religious communities, the owner of property in social ownership was not defined. Nevertheless, the federal State, the constituent Republics, municipalities being local government units and other various legal entities called “social legal entities” (društvene pravne osobe), among which the most important ones were companies, known at the time as “organisations of associated labour” (organizacije udruženog rada) and later on as “socially owned companies” (društvena poduzeća), were during the socialist period given certain quasi-ownership rights over property in social ownership, such as the right to use it (pravo korištenja), the right to administer it (pravo upravljanja) or the right to dispose of it (pravo raspolaganja). 5. The applicant company was established in 1978 in Belgrade as an “organisation of associated labour”. On 30 April 1991 it transformed itself under Serbian law into a commercial (joint stock) company whose shareholders were all private individuals. 6. The applicant company claimed that during the socialist period it had held a quasi-ownership right over eleven plots of land in social ownership (društveno vlasništvo) located in Tisno (Croatia), namely the right of use (pravo korištenja) of that land. At the time, the plots in question had formed the “Beograd” Children and Youth Resort operated by the applicant company. 7. On 8 October 1991 Croatia declared independence and severed all ties with the Socialist Federal Republic of Yugoslavia (hereafter “the SFRY”). 8. By a number of decrees adopted in the period between 17 July and 1 October 1991 the Government of Croatia prohibited companies or other legal entities with their seat in other republics of the former SFRY from undertaking any transactions involving assets (including immovable property) located in Croatia. 9. By Government of Croatia decree of 26 June 1992, which entered into force on the same day, all such assets of legal entities with their seats in Serbia or Montenegro were transferred to the State (see paragraph 23 below). 10. Relying on subsequent legislation that entered into force on 19 April 1994 (see paragraph 24 below), the Šibenik Municipal Court (Općinski sud u Šibeniku) on 8 June 1994 recorded in the land register the State as the owner of the plots of land at issue. 11. With the entry into force on 1 January 1997 of the Property Act, holders of existing quasi-ownership rights over socially-owned property (the rights to administer, use and dispose of it) ex lege became its owners (see paragraph 25 below). This did not apply to such rights which had been extinguished before that date, primarily by virtue of earlier legislative acts whereby social ownership of certain types of property (such as flats, agricultural land and sports facilities) was transformed into private ownership. 12. By a gift contract of 18 April 2001 the State transferred ownership of the land in question to the V.K. elementary school (hereafter “the elementary school”). On the basis of that contract, on 31 May 2002 the Šibenik Municipal Court registered the school as the owner of the land. 13. On 2 June 2004 the Agreement on Succession Issues between the successor States to the SFRY (hereafter “the Succession Agreement”) entered into force (see paragraph 26 below, and, for further details, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, §§ 61-67, ECHR 2014). Annex G to the Agreement deals with private property and acquired rights. Article 2 § 1 of Annex G provides that successor States will recognise, protect and restore the rights to immovable property located on their territory to which citizens or other legal entities of the SFRY were entitled on 31 December 1990, and that anyone who is unable to enjoy such rights will be entitled to compensation. It also provides that any purported transfer of rights to immovable property made after 31 December 1990 will be deemed null and void (see paragraph 27 below). 14. Following an application by the relevant land-survey (geodetic) authorities of 21 November 2005, the Šibenik Municipal Court, by a decision of 22 February 2007, joined the eleven plots of land in question to form a single cadastral plot and recorded the change in the land register. 15. In 2007 the applicant company brought a civil action against the State and the elementary school (see paragraph 12 above) in the Šibenik Municipal Court, seeking restitution of the land in question. In particular, since all existing rights of use had been abolished and transformed into rights of ownership (see paragraph 11 above and paragraph 25 below), the applicant company sought to be declared the owner of the land. In the alternative, the company sought 4,000,000 euros (EUR) in compensation. It relied on Article 2 § 1 of Annex G to the Succession Agreement (see paragraph 12 above and paragraphs 26-27 below). 16. By a judgment of 30 September 2009 the Municipal Court dismissed the applicant company’s action. It found that during the socialist period the applicant company had held the right of use only in respect of one of the eleven plots of land which at the time had formed the “Beograd” Children and Youth Resort (see paragraph 6 above). During the socialist period the right of use in respect of the remaining plots had belonged to the Municipality of Belgrade (nine plots) and to the Belgrade Scouts Association (one plot). When the company had instituted civil proceedings in 2007, that plot had no longer existed as it had been joined to the remaining ten plots to form a single cadastral plot (see paragraph 14 above). This meant that the applicant company’s action had to be dismissed because it had been brought in respect of an inexistent item of property. 17. The applicant company appealed, arguing that during the socialist period the Municipality of Belgrade and the Belgrade Scouts Association had transferred to it the right of use in respect of the ten plots of land. It provided some documentary evidence to that effect. In any event, it was evident that the applicant company had operated and used the resort in the period before 1990 for more than ten years and thereby, under the legislation in force at the time, had acquired the right of use in respect of those ten plots by the operation of law. As regards the remaining plot in respect of which the Municipal Court had acknowledged that it had had the right of use, the applicant company argued that its civil action should not have been dismissed just because that plot had been joined with the remaining ten to form a single plot of land. 18. On 28 February 2011 the Šibenik County Court (Županijski sud u Šibeniku) dismissed the applicant company’s appeal and upheld the firstinstance judgment. It held that the applicant company had not provided sufficient evidence to overturn the Municipal Court’s finding that the company had not held the right of use in respect of the ten plots of land. The County Court, however, agreed with the applicant company’s argument that its civil action regarding the remaining plot of land should not have been dismissed on the grounds stated by the Municipal Court. Nonetheless, the applicant company’s action had to be dismissed because the State had lawfully become the owner of that plot on the basis of the decree of 26 June 1992 and the legislation of 19 April 1994 (see paragraphs 9-10 above and 2122 below). The applicant company’s right of use had thereby been extinguished and thus could not have been transformed into a right of ownership on the basis of the transitional provisions of the 1996 Property Act, which had entered into force on 1 January 1997 (see paragraphs 11 above and 25 below). Lastly, the applicant company could not have relied on Annex G of the Succession Agreement either, because that agreement was not directly applicable. 19. By a judgment of 16 January 2013 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed a subsequent appeal on points of law (revizija) lodged by the applicant company. The relevant part of that judgment reads as follows: “Pursuant to section 362(1) of the Property Act the owner of a socially-owned immovable property is the [legal entity] recorded in the land register as the holder of the right to administer, use or dispose of that immovable property. However, this statutory presumption does not operate in favour of the plaintiff. The plaintiff’s right of use ... could not have been transformed into a right of ownership with the entry into force of the Property Act (1 January 1997) because the plaintiff had already lost the right of use before that, on the basis of section 3(1) of the [Government] Decree [of 26 June 1992]. ... In the light of the foregoing, the right of use ... was extinguished and was transformed into a right of ownership of the first defendant [i.e. the State] before the entry into force of the Property Act. Lastly, as regards the application of Annex G to the Succession Agreement, on which the plaintiff relies, its provisions do not entitle the plaintiff to seek from the [first] defendant recognition of its [i.e the plaintiff’s] right of ownership, ... deletion of the [second] defendant’s right of ownership or [to make] further claims under the law of obligations [i.e. to seek compensation]. ... The plaintiff did not acquire the right of ownership on the basis of the Succession Agreement itself because that right still needs to be recognised. This clearly follows from the last sentence of Article 2 § 1 subparagraph (a) of Annex G which reads: ‘Persons unable to realise such rights shall be entitled to compensation in accordance with civil and international legal norms.’ Therefore, the plaintiff’s right of ownership still has to be recognised, whereupon the competent authority should decide either to return the property or to recognise the right to compensation. In this connection it should be mentioned that under section 3(1) of the Succession Agreement Ratification Act, its implementation is within the jurisdiction of the State authorities citied therein and not of the courts.” 20. The applicant company then lodged a constitutional complaint against the Supreme Court’s judgment. It relied on Articles 48 and 50 of the Croatian Constitution (see paragraph 22 below) and on Article 1 of Protocol No. 1 to the Convention. 21. By a decision of 14 May 2014 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant company’s constitutional complaint. It held that the case did not raise any constitutional issues. 22. The relevant Articles of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/90, with subsequent amendments) read: “The right of ownership shall be guaranteed. Ownership entails obligations. Owners and users of property shall contribute to the general welfare.” “1. Ownership may be restricted or taken in accordance with the law and in the interests of the Republic of Croatia, subject to the payment of compensation equal to the market value. 2. Entrepreneurial freedom and ownership rights may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.” “International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence over the [domestic] statutes. ...” 23. The relevant provision of the Government Decree of 26 June 1992 prohibiting transactions with, and taking over assets of, certain legal entities on the territory of Croatia (Uredba o zabrani raspolaganja i preuzimanja sredstava određenih pravnih osoba na teritoriju Republike Hrvatske, Official Gazette no. 40/92 with subsequent amendments), reads as follows: “The assets of business units and other organisational forms of legal entities with their seat in the territory of Serbia or Montenegro and the autonomous provinces of Kosovo and Vojvodina ... are [hereby] transferred to the Republic of Croatia.” 24. On 24 March 1994 Croatian Parliament passed legislation with the same name (Zakon o zabrani raspolaganja i preuzimanju sredstava određenih pravnih osoba na teritoriju Republike Hrvatske, Official Gazette no. 29/94). The relevant provision of that Act reads as follows: “The courts shall of their own motion record [in the land register] the immovable property of which the Republic of Croatia became the owner on the basis of section 3(1) of the [Government] Decree [of 26 June 1992].” 25. The relevant transitional provisions of the Ownership and Other Rights in Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no. 91/96 with subsequent amendments – “the 1996 Property Act”), in force since 1 January 1997, are set out in the case of Trgo v. Croatia, no. 35298/04, § 28, 11 June 2009. 26. The relevant articles of the Agreement on Succession Issues between the successor States to the SFRY read as follows: “(1) A Standing Joint Committee of senior representatives of each successor State, who may be assisted by experts, is hereby established. (2) This Committee shall have as its principal tasks the monitoring of the effective implementation of this Agreement and serving as a forum in which issues arising in the course of its implementation may be discussed. The Committee may as necessary make appropriate recommendations to the Governments of the successor States. ...” “(1) Differences which may arise over the interpretation and application of this Agreement shall, in the first place, be resolved in discussion among the States concerned. (2) If the differences cannot be resolved in such discussions within one month of the first communication in the discussion the States concerned shall either (a) refer the matter to an independent person of their choice, with a view to obtaining a speedy and authoritative determination of the matter which shall be respected and which may, as appropriate, indicate specific time-limits for actions to be taken; or (b) refer the matter to the Standing Joint Committee established by Article 4 of this Agreement for resolution. (3) Differences which may arise in practice over the interpretation of the terms used in this Agreement or in any subsequent agreement called for in implementation of the Annexes to this Agreement may, additionally, be referred at the initiative of any State concerned to binding expert solution, conducted by a single expert (who shall not be a national of any party to this Agreement) to be appointed by agreement between the parties in dispute or, in the absence of agreement, by the President of the Court of Conciliation and Arbitration within the OSCE. The expert shall determine all questions of procedure, after consulting the parties seeking such expert solution if the expert considers it appropriate to do so, with the firm intention of securing a speedy and effective resolution of the difference. (4) The procedure provided for in paragraph (3) of this Article shall be strictly limited to the interpretation of terms used in the agreements in question and shall in no circumstances permit the expert to determine the practical application of any of those agreements. In particular the procedure referred to shall not apply to (a) The Appendix to this Agreement; (b) Articles 1, 3 and 4 of Annex B; (c) Articles 4 and 5(1) of Annex C; (d) Article 6 of Annex D. (5) Nothing in the preceding paragraphs of this Article shall affect the rights or obligations of the Parties to the present Agreement under any provision in force binding them with regard to the settlement of disputes.” “The Annexes to this Agreement and the Appendices to the Agreement and Annexes are an integral part of the Agreement.” “This Agreement, together with any subsequent agreements called for in implementation of the Annexes to this Agreement, finally settles the mutual rights and obligations of the successor States in respect of succession issues covered by this Agreement. The fact that it does not deal with certain other non-succession matters is without prejudice to the rights and obligations of the States parties to this Agreement in relation to those other matters.” “Each successor State, on the basis of reciprocity, shall take the necessary measures in accordance with its internal law to ensure that the provisions of this Agreement are recognised and effective in its courts, administrative tribunals and agencies, and that the other successor States and their nationals have access to those courts, tribunals and agencies to secure the implementation of this Agreement.” “This Agreement shall be implemented by the successor States in good faith in conformity with the Charter of the United Nations and in accordance with international law.” 27. The relevant Articles of Annex G to the Succession Agreement read as follows: “Private property and acquired rights of citizens and other legal persons of the SFRY shall be protected by successor States in accordance with the provisions of this Annex.” (1) (a) The rights to movable and immovable property located in a successor State and to which citizens or other legal persons of the SFRY were entitled on 31 December 1990 shall be recognised, and protected and restored by that State in accordance with established standards and norms of international law and irrespective of the nationality, citizenship, residence or domicile of those persons. This shall include persons who, after 31 December 1990, acquired the citizenship of or established domicile or residence in, a State other than a successor State. Persons unable to realize such rights shall be entitled to compensation in accordance with civil and international legal norms. (b) Any purported transfer of rights to movable or immovable property made after 31 December 1990 and concluded under duress or contrary to sub-paragraph (a) of this Article shall be null and void. ...” “The successor States shall take such action as may be required by general principles of law and otherwise appropriate to ensure the effective application of the principles set out in this Annex, such as concluding bilateral agreements and notifying their courts and other competent authorities.” 28. Section 3(1) of the Succession Agreement Ratification Act (Zakon o potvrđivanju Ugovora o pitanjima sukcesije, Official Gazette – International Agreements no. 2/04) entrusts its implementation to the Ministry of Finance, the Croatian National Bank, the Ministry of Foreign Affairs, the Ministry of Defence, the Ministry of Health and Social Welfare, the Ministry of Justice, the Ministry of Culture, the State Archive and other State authorities responsible for the issues covered by the Agreement. 29. At the meetings of the Standing Joint Committee, established under Article 4 of the Succession Agreement (see paragraph 23 above) held on 1718 September 2009 and 11-12 November 2015, the committee adopted recommendations concerning, inter alia, Annex G to the Agreement. The committee noted that the application of the provisions of Annex G was not efficient enough, and recommended that the interested successor States conclude bilateral agreements for the purpose of the efficient implementation of those provisions. It also advised them to refrain from passing any legislation or undertaking any steps contrary to the provisions of Annex G, and to adopt, should they deem it necessary, measures intended to enable the effective application of Annex G standards. 30. In decision no. U-I-1777/2003 of 17 March 2009 the Constitutional Court held as follows: “... The Constitutional Court notes that the entry into force of the [Succession] Agreement did not remove the legal effects associated with taking over the assets of certain legal entities on the territory of Croatia produced by the entry into force of the [Government of Croatia] Decree [of 26 June 1992] ... nor did the Contracting Parties by that Agreement explicitly undertake to return those assets. They only established the principle of equal protection of the property of natural [persons] and legal [entities] with the nationality of, or their seat in, the territory of the other Contracting party [thereby granting them the same level of protection] as the one enjoyed by their nationals and legal entities. The said Agreement merely constitutes a basis for the conclusion of further agreements between the Contracting Parties with a view to regulating the procedure for exercising the right to compensation for damaged, destroyed or lost property, but is not an instrument suitable for direct application in each particular case. ... The Constitutional Court ... reiterates that Annex G stipulates only the fundamental principles underlying the succession issues related to private property and acquired rights of citizens and other legal entities. This undoubtedly stems from Article 4 of Annex G, which stipulates that the successor States should take such measures as may be required by general principles of law and otherwise appropriate to ensure the effective application of the principles set out in that Annex, such as concluding bilateral agreements and notifying their courts and other competent authorities. ... [these] measures entail the adoption of appropriate legislation and subordinate legislation, concluding international agreements and the like. In so doing, all the successor States are obliged to implement the Agreement in good faith, in accordance with the UN Charter and international law.”
| 0 |
test
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001-165950
|
ENG
|
HUN
|
CHAMBER
| 2,016 |
CASE OF HUNGUEST ZRT v. HUNGARY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano
|
4. The applicant is a company limited by shares registered under Hungarian law. It has its seat in Budapest. 5. On 31 May 2000 a property claim was brought against the applicant requesting it to pay mandate fees in the amount of 275 million Hungarian forints (HUF) (approximately 1,057,000 euros (EUR) at the time). 6. On 6 June 2000 the Budapest Regional Court ordered the applicant, under section 187(1) of Act no. LIII of 1994 on Court Execution, to deposit on the bailiff’s trust account a security in the amount of HUF 275 million. The applicant appealed against the decision but this was to no avail. The money was deposited on the bailiff’s trust account on 27 March 2001. 7. Under the law, such deposits yield no interest. 8. The applicant requested to have the money released arguing that its financial situation was satisfactory, there was no need for such a deposit and that this measure contradicted the principle of economic rationality. 9. The applicant’s request was dismissed on 8 May 2001. The Supreme Court as second-instance court upheld the decision on 8 November 2001. The applicant’s subsequent requests to have the money released, in exchange for other securities offered, were also turned down. 10. After remittals on 27 November 2002 and 8 June 2007, on 16 October 2008 the Regional Court adopted a judgment, partly found for the plaintiff and ordered the applicant to pay HUF 137,280,000 (EUR 514,000 at the actual rate) plus interest accrued as of 6 January 2000. On 16 October 2009 and 29 April 2010, respectively, the Budapest Court of Appeal and the Kúria upheld this judgment. 11. Although the plaintiff succeeded only partly in the litigation, the amount actually payable by the applicant exceeded the amount of the entire deposit. This outcome was the consequence of the fact that whilst the applicant was ordered to pay accrued interest on the money due to the plaintiff in the amount of approximately HUF 189,500,000 (EUR 700,000 at the actual rate), its own money deposited on the bailiff’s trust account had yielded no interest. Ultimately, the applicant had to surrender the whole deposit and pay about another HUF 90 million (EUR 330,000). 12. The applicant challenged the impugned provisions of Act no. LIII of 1994 on Court Execution before the Constitutional Court; but its constitutional complaint was dismissed on 7 June 2011. This court held that ‘interest’ as such was consideration for the ‘use’ of another person’s money; however, the authorities had not in any way ‘used’ the deposited amount. Furthermore, the Constitution did not provide any safeguards against the depreciation of an asset, including a deposit of money subject to inflation, and that such depreciation for economical or other reasons did not amount to a deprivation of property.
| 1 |
test
|
001-175658
|
ENG
|
SVK
|
COMMITTEE
| 2,017 |
CASE OF MAGÁT v. SLOVAKIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Alena Poláčková;Helen Keller;Pere Pastor Vilanova
|
4. The applicant was born in 1957 and lives in Zákopčie. 5. On 28 February 2011 the applicant was sued by his son in proceedings on child maintenance before the Čadca District Court (file no. 10 C 38/2011). 6. During those proceedings he made an incomplete submission on 21 April 2011, which he supplemented the month after alleging that he had been waiting for a response from the Centre for Legal Aid in respect of his request for a legal aid lawyer. He also lodged two complaints with the president of the District Court about the excessive length of proceedings, namely on 9 February 2012 and 29 February 2012, which were unsuccessful. Having been dissatisfied with their outcome, he turned to the appellate court for review of his complaints to no avail. 7. The District Court, on the other hand, took the following steps. It asked several public authorities, such as for example Social Security Authority and the Job Centre, to provide it with information relevant to the case. Between May 2012 and April 2014, it was dealing with an appointment of a guardian to the applicant, who at the material time was undergoing an ambulatory psychiatric treatment. Such an appointment was eventually revoked in September 2014 on the grounds that the Centre for Legal Aid had appointed a lawyer for the applicant in June 2014. The District Court also joined the present case file to another set of proceedings for several months. In January 2014, the District Court judge responsible for hearing the applicant’s case changed. The District Court further scheduled several hearings, which were either adjourned or cancelled. 8. On 13 May 2015 the Constitutional Court rejected the applicant’s complaint about a violation of his right to a hearing within a reasonable time in the proceedings held before the District Court as manifestly ill-founded. It concluded that the District Court proceeded with the matter actively and properly, apart from a few minor exceptions, such as the joining of a case file to another set of proceedings, changing of the judge and a procedural error made during one of the hearings. In particular, the Constitutional Court took into account the fact that the applicant had complained of excessive delays with the president of the District Court and challenged them further on appeal on each occasion. 9. Subsequently, the District Court took several steps as follows. It asked for further information from inter alia the applicant’s employer. It also scheduled a hearing for 12 August 2015, which was adjourned to 31 August 2015. It then postponed the latter hearing to an unspecified date, since it had to deal with a procedural request from the plaintiff, which was also challenged on appeal. In the absence of any further information from the parties, it appears that the proceedings are still pending and no judgment on the merits has been delivered by the District Court.
| 1 |
test
|
001-144345
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,014 |
N. AND OTHERS v. THE UNITED KINGDOM
| 4 |
Inadmissible
|
George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
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1. The first applicant is a Sri Lankan national who was born in 1961 and lives in Wattala. The second applicant is her mother, who was born in 1935 and is a Sri Lankan national who lives in Bromley. The third applicant is her brother, who was born in 1967 and is a British national who also lives in Bromley. All three applicants are represented by the Aire Centre. 2. The facts of the case may be summarised as follows. 3. The first applicant is an ethnic Tamil who holds Sri Lankan citizenship. On 6 April 2009 she arrived at Heathrow airport on a flight from Sri Lanka via Kuwait. She held a valid visitor’s visa for the United Kingdom and passed through immigration controls. 4. The first applicant went to stay with her brother, the third applicant, who was resident in London. Her mother, the second applicant, resided with the brother. 5. The first applicant subsequently instructed a solicitor who, by letter to the Home Office dated 24 April 2009, indicated that she wished to make an asylum claim on the ground that she feared mistreatment because of her imputed political opinion if returned to Sri Lanka. The letter recorded that she claimed to have a well-founded fear of persecution because she was an ethnic Tamil from northern Sri Lanka; she had been detained and tortured by the Sri Lankan authorities; the Sri Lankan authorities had a record of her as a suspected LTTE sympathiser; she was “confused and psychologically scarred”; she would be returning from London, which the Sri Lankan authorities regarded as a centre of LTTE activity and fundraising; and she had escaped from Sri Lankan government custody. 6. She attended an asylum screening interview on 27 April 2009. Her interviewer was female. According to the applicant the interview was conducted with the aid of a male, Tamil-speaking interpreter. She was asked if she had a preference whether she was interviewed by a man or a woman and answered that she did not. 7. On 29 November 2010 the first applicant’s asylum interview took place. The interview was conducted by a female interviewer assisted by a female, Tamil-speaking interpreter. The first applicant maintained her claim for asylum or humanitarian protection on grounds of an alleged risk of illtreatment if returned. She claimed that on 4 February 2009, she had been stopped at an army checkpoint in Colombo. Because her identity card listed her place of birth as Karampon, a town in a predominantly Tamil area of northern Sri Lanka, she had been accused of planning acts of violence and detained by government agents for several days at an unknown location. Her husband and others had managed to secure her release, provided that she report to the authorities weekly. 8. She further alleged that on 27 March 2009, she had been assaulted by three Criminal Investigation Department (“CID”) officers who had come to her home looking for her husband while he and their three sons were out. She had been taken to a remote camp in an unknown, governmentcontrolled area of Sri Lanka for questioning, where she had been tortured. She had subsequently become ill and had been transferred to a hospital with a CID guard stationed in the hospital grounds. She had escaped after three days, at 2 a.m. when there was no guard, with the help of a nurse and her husband, who was a taxi-driver. She had paid them with a gold earring. She had not returned to her home in Colombo but had spent a week at the house of her husband’s friend in Wattala before leaving the country with the help of an agent, whom she had paid with her jewellery and the title deeds to her home. She had not contacted her husband or sons since her arrest but had heard that they were no longer living at her former home. She had entered the United Kingdom on a visitor’s visa which she had obtained in November 2008 to enable her to visit the third applicant and his wife, who were resident in London and had just had a baby. 9. The Secretary of State refused the first applicant asylum and humanitarian protection on 20 January 2011. 10. On the question of the credibility of her account of events in Sri Lanka prior to her arrival in the United Kingdom, the Secretary of State made a number of comments. First, she did not accept as credible, having regard to immigration control procedures, the first applicant’s claim at the asylum interview that she did not speak to an immigration officer when passing through immigration control. She concluded that the first applicant had gained illegal entry to the United Kingdom by verbally deceiving the immigration officer and placed “significant weight” on the mandatory damage done to her credibility in this regard. She further found that her credibility was damaged by the fact that she had not claimed asylum immediately on arrival at Heathrow but “four months” after (in their written submissions, the Government accepted that the reference to “four months” was an error and should have read “three weeks”). 11. Second, in respect of the first applicant’s alleged arrest in February 2009, the Secretary of State found that, having lived in Colombo for a number of years, the first applicant would already have registered with the authorities there (referring to information contained in the Country of Origin Information Report for Sri Lanka, November 2010 – the “COI Report 2010”). Doubt was cast on her account of events because her claim that she was detained for the reason that her ID card stated that she was from Karampon was not considered consistent with the purpose and use of compulsory registration in Colombo, which was to identify and question further those not from the area at the time of registration. Her account was also vague: she could not say who the people who had come with her husband to collect her were, or how her husband had secured her release. Despite having been released with an obligation to report on a weekly basis, she did not know to whom she had reported, where she had reported or how many times she had reported. The Secretary of State considered that her vague responses cast doubt on her claim. She therefore did not accept that the first applicant had been arrested and detained in the circumstances claimed, and this damaged her credibility. 12. Third, in respect of her alleged arrest in March 2009, the Secretary of State considered the first applicant’s claim that she was of interest to the CID to be inconsistent with her account that the guard left the hospital, enabling her to escape. The Secretary of State also noted that she had all the necessary documents and means to leave Sri Lanka legally and would not have required the assistance of an agent. Her account that she was assisted by an agent was therefore not consistent with her personal circumstances. Further, since the first applicant had been too afraid to return to her home address, she had not explained how she had obtained her 2008 passport for travel. This, too, cast doubt on the claim that she had left Sri Lanka in the circumstances described. The Secretary of State was of the view that although the first applicant had stated that she had had no contact with her husband or children since her arrest, it was unlikely that she would have fled Sri Lanka without attempting to warn them of the CID’s interest in her husband. For all of these reasons, the Secretary of State did not accept that she had been arrested or detained in March 2009 and her credibility was damaged as a result. 13. The Secretary of State considered the risk to the first applicant on return to Sri Lanka in light of these adverse credibility findings and the relevant case-law. As the material facts of her claim were not accepted, the Secretary of State concluded that the Sri Lankan authorities would have no adverse interest in her. In terms of the risk factors identified by the Asylum and Immigration Tribunal in the leading country guidance case of LP (see paragraphs 70-71 below), the only ones applicable to her were her Tamil ethnicity, her return from London and the fact that she had made an asylum claim abroad. These did not create, either separately or cumulatively, a real risk of ill-treatment on return. 14. As for Article 8, the Secretary of State noted that the first applicant relied on her relationships with her mother, brother and sister (who had arrived in the United Kingdom with the first applicant and had also claimed asylum). There was no evidence that these relationships involved more dependency than the usual emotional ties, and she had failed to show family life with her sister. There was equally no evidence that she had established private life in the United Kingdom since her arrival on 6 April 2009. 15. The first applicant appealed to the First-tier Tribunal (Immigration and Asylum Chamber). Her appeal was heard with that of her sister, who had also been refused asylum. The hearing took place before a male Immigration Judge and with the assistance of a male interpreter. The judge had before him, inter alia, a copy of the screening and asylum interview records, the Secretary of State’s reasons for refusal and the grounds of appeal. He also had before him a witness statement in which the first applicant set out full details of her account, and claimed in particular that she had never registered in Colombo; that her passport had been in a locker at the bank; and that her husband’s friend had recovered her passport on her behalf. The applicants relied on the COI Report 2010 together with relevant case-law and other supporting documents and objective material. The judge heard oral evidence from the applicant, her sister and her brother. 16. The appeal was dismissed on 17 March 2011. The judge made a number of findings of fact, explaining that he had given careful attention to the oral evidence in the case, the reasons for refusal letter, the grounds of appeal, the applicant’s witness statement and the supporting documents, including the country evidence and the country guidance cases of LP and TK (see paragraphs 70-71 below). 17. He upheld the Secretary of State’s finding that the first applicant would have had to register with the police in Colombo, explaining that had she not done so, she would have been stopped at checkpoints long before February 2009. He also observed that the Sri Lankan authorities had issued her with a passport in November 2008, even though they knew she was from Karampon. He commented on her description of her release from the February 2009 period of detention, noting that her husband could not have known where she was being detained when she herself did not know and that she was unable to provide details of the reporting requirement imposed. He made an adverse finding of credibility. 18. As regards the second period of detention in March 2009, the Immigration Judge found that her account of her arrest made no sense: if the CID had wanted to find her husband they would have waited for him or gone to look for him, and would not have taken her instead. The judge described the ill-treatment that she alleged had taken place, namely that a polythene bag with petrol in it had been placed over her head and her head had been repeatedly submerged in water, and found it not credible that during this treatment her gold earrings would have remained in place, allowing her to use them to bribe the nurse later. If the CID were interested in her and wished to obtain information through torture, the judge considered it not credible that they would have arranged for her medical treatment by a doctor and a nurse. He continued: “32. ... Despite the fact that the CID had apparently seen fit to place a guard on the door they did not see fit to ensure that the guards changed shifts simultaneously thereby allowing the appellant to escape, dressed as a nurse having first given the genuine nurse her earrings which were also used to pay the nurse’s brother to pick her up in his rickshaw taxi and then to deliver her to a friend’s house even though he could not possibly have known in advance how long the journey would last or whether he would have enough petrol to make the trip because he did not know where the destination would be and [the first applicant] did not know where she was being held. I am trying to work out what was the point of dressing up as a nurse when there was nobody around to see her but there seems little point in picking up on small points when the entire story is so ludicrously lacking in credibility that it would struggle to be acceptable even as the plot of a ‘Carry-on’ film”. 19. As regards the first applicant’s seeking refuge with her husband’s friend in Wattala, the judge observed that she and her driver “would have woken up the entire village” by knocking on doors to find out where her friend lived. He further observed that the first applicant had “apparently forgotten”, when claiming that she could not go home because no-one was there, that her husband and children would have come home and wondered where she had gone. He found her explanation that her friend had told her that they were living elsewhere to be “an embellishment designed to plug a gap in the evidence”. The judge made critical comments about the sisters’ accounts of how they contacted each other by mobile phone and rejected the first applicant’s account of having used an agent, on the basis that she had a passport with a valid visitor’s visa so had no need for one. Her claim of having sold the house to pay the fees he said was “a total fabrication”. 20. The Immigration Judge found that the sisters had obviously put their heads together and that their escape from Sri Lanka was nothing more than “a coordinated pleasure trip with a sinister intention, namely to deceive the UK authorities by cooking up a story once they had arrived at their brother’s house”. The judge had no doubt that they had been in regular contact with their respective husbands and that the first applicant had been in contact with her sons. He reviewed all the applicable risk factors set out in LP (see paragraph 71 below) and concluded that the first applicant and her sister could be returned to Sri Lanka. In particular, there was no evidence that a failed asylum-seeker was per se subject to persecution on return and the first applicant and her sister were of no interest to the authorities. There was nothing about them save their ethnicity which could possibly cause any authority to make inquiries. 21. As to the manner in which the first applicant had claimed asylum, the judge commented on her failure to make a claim at Heathrow airport or immediately upon arrival at her brother’s house. He found that her mother’s alleged ill-health was not sufficiently serious to have prevented her from contacting the authorities immediately. He continued: “40. ... The appellants claim to suffer from the effects of torture but I find that this is all part of the smokescreen. They have persisted in maintaining a false story and their conduct in seeking anonymity [in the course of proceedings before the Tribunal] is but another aspect of the smokescreen which they have thrown up. They have taken advantage of the [National Health Service] and the local school system. Their brother has abused the society which gave him refuge. I have no hesitation in finding that their conduct adversely affects what remains of their credibility.” 22. The judge concluded: “41. I find in each case that the appellant is sufficiently resourceful to be able to return and to re-establish herself in a country where she spent most of her life and where her family still lives. She is not suffering from any life-threatening illnesses ... I find on all the evidence adduced that there are no compassionate circumstances or other matters showing why the appellant could not return to Sri Lanka. I find that her ties are to Sri Lanka and not to the United Kingdom. Removal is appropriate and proportionate. ... 43. Given the conclusions as outlined above, I also find in each case that the appellant has not shown substantial grounds for believing that she will face a real risk of serious harm in her country of origin or that she is unable, or owing to such risk, unwilling to avail herself of the protection of her country of origin ...” 23. The first applicant and her sister sought permission to appeal against the Tribunal’s determination on grounds, inter alia, of bias and the fact that the Immigration Judge had failed properly to consider their case under Articles 2 and 3 of the Convention. 24. On 4 April 2011 the application was dismissed by a different Immigration Judge of the First-tier Tribunal who explained: “The Immigration Judge spent some time dealing with the appellants’ cases and for a number of perfectly clear reasons disbelieved the entirety of their accounts. It is clear that he expresses himself in very forceful terms; however, for each matter he disbelieves he gives clear reasons [which] do not display bias, but which simply explain why he has reached the conclusion, and whilst many might not have expressed themselves so forcefully the expressions themselves do not display an arguable error of law. While it is true that there is no clear evaluation in relation to article 8, in looking at the appellants’ and [their] witness’s statements there is nothing in them to suggest any real family life or private life for either appellant save for presence with other adult family members. I see no skeleton argument for either, which suggests that no real article 8 case was put forward. As a result there appears to me to be no realistic prospect of success on appeal in relation to article 8...” 25. The first applicant and her sister renewed their application to the Upper Tribunal. On 6 July 2011 the application was dismissed for the reasons given in April by the First-tier Tribunal. The Senior Immigration Judge added that, although the initial Immigration Judge’s opinions had been robustly expressed, there was no evidence of bias. 26. With the rejection of the application to appeal, the first applicant’s appeal rights were exhausted. 27. In August 2011 the first applicant’s NHS counselling psychologist informed her general practitioner that she was “having suicidal thoughts of throwing herself in front of a train or traffic” and that she claimed to have stepped out in front of a car two weeks earlier, which had fortunately stopped in time. 28. On 6 September 2011, the general practitioner confirmed that the first applicant suffered from depressive illness “due to her family situation”, that her antidepressant medication was not working, that she had been referred to a psychiatrist and that her prognosis would be poor until support for her to remain in the United Kingdom had been achieved. He referred to her “suicidal ideation” and problems with her status in the United Kingdom. 29. On 14 September 2011 the United Kingdom Border Agency (“UKBA”) issued directions for the first applicant’s removal to Sri Lanka by charter flight at 3 p.m. on 28 September 2011. She was taken into immigration detention. 30. On 15 September 2011 medical personnel at the immigration removal centre recorded in an R35 report that the first applicant had told them that she had been tortured by the Sri Lanka army and that, as part of that torture, had been raped. 31. On 15 September 2011, with the assistance of new legal representation, the first applicant made further submissions to the Secretary of State. Her representatives submitted that details of her ill-treatment while in detention had not previously been disclosed because she was too traumatised to give full disclosure to her brother, her male lawyer and the male interpreter at the asylum interviews, and that trauma could cause individuals to block out painful events. They explained that she had been referred to the Helen Bamber Foundation for further investigation and included a copy of the R35 report. 32. The further submissions also referred to the fact that the first applicant had disclosed suicidal thoughts and that there were concerns for her well-being. The various letters from her GP and counselling psychologist were enclosed. Relying also on Article 3 of the Convention, the first applicant submitted that return to the place where torture and illtreatment had taken place could cause further mental deterioration. 33. On 23 September 2011 the Secretary of State informed the first applicant that her removal would proceed as planned. In her letter, the Secretary of State reiterated that it had not been accepted that the first applicant had ever been detained by the Sri Lankan authorities and that the First-tier Tribunal had not believed her account, even to the smallest degree. The Secretary of State further noted that while the first applicant claimed that her former reticence to disclose details of the rape was because she had male solicitors and interpreters, she had shown no compunction in raising the claim when removal became imminent. 34. As regards the first applicant’s mental health, the Secretary of State noted that she had not told her GP about her torture, and had attributed her depression and suicidal ideation to an undisclosed family situation and her placement in immigration detention. It was considered that she had not been honest with the United Kingdom authorities and was seeking to claim that she had been raped as a means of remaining in the United Kingdom, perhaps to obtain medical treatment or to resolve problems with her family. The Secretary of State added that there was no reason to believe that she would not have access to medicine and treatment in Sri Lanka, and that her mental health problems did not meet the Article 3 threshold. 35. The Secretary of State maintained her position that removal would also be a proportionate interference with the first applicant’s rights under Article 8 since there was no evidence of the required level of dependency in her relationship with her mother and adult siblings; she had failed to come “even close to showing” that her moral and physical integrity would be breached on return to Sri Lanka; and she had not demonstrated anything more than the usual personal ties to the United Kingdom. 36. In conclusion, the Secretary of State found that the points made by the first applicant in her submission, taken together with material previously considered, did not create a realistic prospect of success before an Immigration Judge (see paragraph 68 below). The submissions did not therefore amount to a fresh claim and there was no right of appeal against that decision. 37. According to the first applicant’s detention records, on 22 September 2011 she attended a bail hearing where she claimed that she had tried to kill herself several times. Upon her return to the immigration removal centre, an immediate action plan was put in place. It was decided that she would be observed hourly in order to ensure that she remained safe. A healthcare appointment was arranged for her that night and a doctor’s appointment was arranged for the following day to explore her mental health issues. Regular case reviews subsequently took place. 38. On 24 September the first applicant was interviewed by an independent male psychiatrist with the assistance of a female interpreter. According to his report of 26 September 2011, in that interview she gave further details of her rape by three men in uniform during her first period of detention in February 2009 and her beating and gang rape by four Sri Lankan officers during her second period of detention in March 2009. The psychiatrist noted that she had displayed clear signs of distress consistent with emotional trauma when giving her account of events. 39. The psychiatrist was of the view that that the applicant presented with symptoms consistent with depression. He identified the main perpetuating factors as her pending repatriation and her current detention. He considered that on a balance of probabilities she was suffering from post-traumatic stress disorder, based on the assumption that the alleged detention and abuse in Sri Lanka had taken place. 40. He recorded that he was fully aware of the unexplained discrepancies between the account given to him and that given to UKBA. He explained that he could not comment on her credibility, which was a matter for the courts. However, he observed that it was not unusual for patients who had suffered significant trauma to recollect peripheral information at the expense of other information, or to distort memories. 41. The psychiatrist noted that the first applicant could not explain why she had not shared the information earlier. He considered that there was not enough evidence to suggest that she had dissociated herself from the traumatic events and therefore did not believe that dissociation was responsible for her previous omissions. However, he noted that during his interview with her, he was assisted by a female Tamil-speaker from India, and hypothesised that this might have reduced the threat of cultural stigma from the disclosure. 42. Finally, the psychiatrist recorded that the first applicant had expressed a desire to commit suicide if returned to Sri Lanka, claiming that this would be preferable to being tortured and killed by soldiers. He recorded that officials at the immigration removal centre had placed the first applicant on suicide watch, and recommended that this be maintained. He was of the view that her recent detention had significantly contributed to worsening her mental state. He noted that she had no active plans to end her life unless sent back to Sri Lanka. He recommended various therapies but could not comment on whether they would be available in Sri Lanka. 43. The first applicant’s detention record logs the results of the hourly observations of the first applicant from 5.30 p.m. on 22 September until 9.55 a.m. on 28 September. Aside from legal and medical appointments and discussions with staff members about her removal, the record shows that she regularly ate meals with friends, she attended church, she talked to other detainees, she washed her clothes and she slept. 44. On 27 September 2011, on the basis of the psychiatrist’s report and other fresh evidence, including a letter from a Sri Lankan lawyer stating that the she had been detained in February 2009 and had appeared before Colombo Magistrates’ Court, represented by him, the first applicant made further, urgent representations to the Secretary of State. 45. At 11.41 a.m. on 28 September 2011, her further representations were rejected. The Secretary of State noted that the first applicant had previously made no mention of having been produced before Colombo Magistrates’ Court. There were also inconsistencies between the lawyer’s account and that of the first applicant: he said that she had been released on cash bail to report to a particular police station; she said that she had been released with a weekly reporting requirement but did not know where. The Secretary of State therefore concluded that the letter was not reliable. 46. As regards the first applicant’s mental health, the Secretary of State noted that according to the psychiatrist’s report this had been worsened by her detention and concluded that it would therefore improve after removal. There was no clear evidence of a real risk that the first applicant would commit suicide if returned. Despite the first applicant’s representations to the contrary, the Sri Lankan health system provided adequate treatment for depression. There were no exceptional or extreme circumstances in her case. Her ability to travel had been assessed and had there been any doubts, her removal would not have proceeded. However, there had been no doubts. 47. Finally, as regards Article 8, the Secretary of State accepted that the first applicant had family life in the United Kingdom but maintained that her removal would be proportionate. 48. Upon receiving the Secretary of State’s decision the first applicant commenced judicial review proceedings in the High Court. She claims that the papers were lodged at some time prior to 2 p.m. on 28 September 2011. In her judicial review application, she alleged that the Secretary of State’s failure to treat the post-appeal evidence concerning her rapes, psychiatric illness and suicide risk as a fresh claim violated domestic law as well as Articles 3 and 8 of the Convention. She also sought an injunction to stop the Secretary of State removing her prior to consideration of her judicial review claim. The various tribunal decisions were not lodged with the claim. 49. According to the detention records, the first applicant was asked by immigration removal centre staff on the morning of 28 September whether she would go to the airport without causing problems and answered that she would. She was therefore taken to reception for transfer to the flight at 9.55 a.m., and no problems were reported. According to the first applicant, she was carried on to the flight to Sri Lanka at or around 3 p.m. by two men. 50. Many of the forty-nine other Sri Lankans on the flight manifest had also applied to the High Court for permission for judicial review on the basis that they faced a real risk of torture upon arriving in Sri Lanka. Twenty-three individuals were removed from the flight manifest prior to departure as the High Court ordered that they were not to be removed pending those proceedings. However, the first applicant’s case was not considered in time to prevent her removal (see paragraph 52 below) and no order was made to suspend removal pending consideration of her case. 51. The flight departed with fifty Sri Lankan nationals on board at 4.15 p.m. on 28 September 2011. 52. On 30 September 2011 the High Court refused permission to seek judicial review on the papers. As to the failure to consider the applicant’s claim before her deportation, the High Court judge stated: “The claimant was due to be removed to Sri Lanka at 15.00 on 28 September. The directions for her removal had been served on her on 14 September. However, it was not until 28 September that her claim for judicial review proceedings challenging the directions for her removal was lodged. Her application for a stay on her removal directions came before me on 28 September as the ‘immediates’ judge. The claimant was one of 20 or so failed asylum-seekers due to be removed on the same flight who were asking for a stay on their removal. Although some of the applications could be considered by other judges when they became available, it was plain by about 14.00 that I would not be able to consider all the remaining applications by 15.00. In those circumstances, I was informed by [UKBA’s Operational Support and Certification Unit] which of the remaining applicants were on the main manifest, and which were on a reserve list – and therefore liable to be included on the main manifest only if someone on the main manifest was removed from the flight. Although my priority was to deal with the applications of those on the main manifest, I had not reached the claimant’s case by 15.28 when I was told that the doors were about to close. I was informed yesterday that the claimant had been on the flight.” 53. On the merits of the claim, the judge noted that if he had considered the first applicant’s case on 28 September, his difficulty would have been that her solicitors had not included in the bundle of documents the decision of the Immigration Judge. He said: “It would not have been possible for me to conclude that it was arguable that the rejection of the claimant’s solicitors’ representations, and the refusal to treat those representations as fresh claims, was legally flawed without reading that decision.” 54. The judge concluded that since the applicant had now been removed to Sri Lanka, no purpose would be served by reconsidering the matter once the decision of the Immigration Judge had been provided or by permitting her claim to proceed. 55. The first applicant renewed her application for permission to seek judicial review on 4 October 2011. The application was refused on 18 January 2012 following an oral hearing. The judge summarised the applicant’s case as follows: “9. ... [T]he claimant’s case was that there was in this case post appeal evidence of additional brutality and its after effects, in particular creating an increased dependency on her family in the UK and a risk of suicide, those justifying the Secretary of State in treating this application as a fresh application for asylum, engaging both issues of Article 3 and human rights consideration in addition pursuant to Article 8.” 56. He reviewed the determination of the First-tier Tribunal and observed: “11. It is clear that, having heard evidence from both the claimant and her sister ... the judge concluded, in emphatic terms, that neither sister was credible in any relation to the claims for asylum. In short, he concluded that both the claimant and her sister had told a pack of lies. 12. It follows that it is against that very unpromising background of evidence from the claimant having been heard and considered by a judge and effectively damned in such strong terms that the question whether the Secretary of state was right to conclude that any further claim based on additional materials stood no reasonable prospects of success.” 57. He noted the arguments of the first applicant’s counsel, namely that the Secretary of State had failed adequately to take into account the psychiatrist report in reaching her conclusion on the Article 8 issue; that it was not open to the Secretary of State, in light of that report and the Sri Lankan lawyer’s letter, to conclude that the first applicant’s evidence was inconsistent and untrue; and that it was perverse for the Secretary of State to have reached the findings she did on the first applicant’s suicide risk, given the evidence. He continued: “15. In my view, the problem with the submissions that [counsel for the applicant] has advanced ... is that they overlook the fundamental question of credibility and the context in which this new evidence was raised very much at the eleventh hour. The immigration judge’s determination was, as I have indicated, a savage series of findings in terms of the credibility of the claimant’s account. On the face of it, in circumstances where this claimant had given evidence dealing with her alleged treatment in custody in Sri Lanka in 2009 and the brutal treatment meted out to her, all of which evidence was considered by the immigration judge, it seems to me that the Secretary of State was well entitled to conclude that there was no realistic prospect of success in circumstances where completely new allegations were now being advanced some two days before removal directions were set and in circumstances where none of that evidence, including the medical evidence ..., provided a sensible or satisfactory explanation for the failure to mention these important allegations at the time of the original appeal.” 58. He found that in these circumstances, it was impossible to characterise the Secretary of State’s decision as unlawful and dismissed the renewed application for judicial review. 59. The first applicant alleges that, after arriving at Colombo airport, she was detained and interrogated by Sri Lankan authorities. One of her interrogators struck her on the forehead. She further claimed that, when released from this initial detention and preparing to leave the airport, she was abducted, blindfolded and removed to an unknown location by an unknown person. Her clothing was forcibly removed. Her captors asked whether she was “still” linked with the LTTE and had taken part in LTTE activities while living in the UK. They accused her family of funding the LTTE. The men showed her copies of her asylum papers they had found in her bag, which she claimed had been packed by United Kingdom officials at the immigration removal centre, and asked her questions about them. They then beat her, kicked her, stabbed her with a broken ballpoint pen and did further “unspeakable bad things” to her. Eventually they forced her to sign statements written in Sinhalese. 60. The first applicant alleges that her interrogators ultimately released her from their custody. After seeking treatment at a hospital, she became frightened, went into hiding and was unable to contact her family in the United Kingdom for more than three months. She has submitted a copy of a letter from a doctor at the National Hospital of Sri Lanka in Colombo addressed “to whom it may concern”. The letter states that, according to the hospital records, on 6 October 2011, the first applicant “presented with multiple physical injuries and psychological trauma.” She had “sustained head, arm and leg injuries, scratches around [her] neck and bruises on her face caused by torture and other ill-treatment”. 61. The first applicant also maintains that, since emerging from detention, she has twice attempted to commit suicide, as documented by a letter from the same doctor dated 14 January 2012. She claims that she is currently staying with an acquaintance and that her husband and sons remain missing. 62. Two officials from the British High Commission in Colombo met the first applicant’s flight as it arrived at the airport. One of the officials has set out his account of events in a letter dated 3 October 2011. He explained that the group of fifty returnees was escorted to a seated area in immigration arrivals. They were addressed by a Tamil-speaking migration officer who explained the processes that they would have to go through. The British High Commission official then addressed them in English. In his letter, he said: “None of the returnees appeared ill or distressed in any way and their main concerns seemed to be around being reunited with their baggage and belongings.” 63. The first returnees were interviewed from around 11.15 a.m., by the Department of Immigration and Emigration first and then by the State Intelligence Service and CID jointly to ascertain their mode and route of travel to the United Kingdom, what they had been doing there and whether they had been involved in previous criminal activity in Sri Lanka. Once the interviews were completed, their passports were stamped allowing them to leave. They were then addressed by a representative of the International Organization for Migration, who gave them a travel grant equivalent to GBP 50 for onward travel and accommodation if required and took their contact details. 64. The first returnee was allowed to leave at 1.20 p.m. The last of the returnees passed through customs at approximately 5 p.m. The official accompanied most of the returnees to the baggage reclaim area, where he oversaw the collection of their bags. The official was made aware that one of the first male returnees processed had been identified as the subject of an outstanding criminal arrest warrant and would therefore be arrested once he had completed immigration procedures. The official was provided a copy of the court warrant. He was subsequently informed that the arrest had taken place and spoke to the police officer who had made the arrest and the returnee himself. 65. By supplementary letter dated 13 September 2012, intended to address questions arising in the proceedings before this Court, the official confirmed that no female on the flight was questioned for any considerable length of time. Aside from the one returnee who was arrested, no other returnees were detained. All returnees were addressed either by him or his colleague, and one of the two accompanied every single passenger to the baggage reclaim area and reunited them with their bags. The officials gave the returnees their business cards. The official emphasised that he and his colleague remained with the passengers throughout the whole process and would have noticed had any of them shown signs of illness, injuries or distress. Each of the returnees had ample opportunity to seek assistance from him and his colleague. 66. The official accepted that in theory a returnee could have been apprehended as she was about to leave the airport. He continued: “The arrivals area is normally crowded with waiting friends and relatives, plus the media were in attendance specifically for the charter flight. It would however be questionable as to why the authorities would wait until that stage when the person could have been arrested or detained during the border control process if they were of further interest.” 67. Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a further right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on a point of law. 68. Paragraph 353 of the Immigration Rules provides that further submissions made after an asylum claim has been determined will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) has not already been considered; and (ii) taken together with the previously considered material, creates a realistic prospect of success. 69. UKBA’s policy instruction on judicial review and injunctions provides that UKBA will normally defer removal where a judicial review application has been properly lodged with the High Court in accordance with the applicable Practice Direction. However, where it is considered appropriate because of the complexity, practicality and cost of a charter flight, a judicial review application may not defer removal unless an injunction is obtained from the High Court. 70. The country guidance case-law applicable at the relevant time was set out in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (“LP”) (subsequently endorsed by this Court in NA. v. the United Kingdom, no. 25904/07, § 95, 17 July 2008) and TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 (“TK”). The findings in both cases are set out in detail in the Court’s judgment in E.G. v. the United Kingdom, no. 41178/08, §§ 13-16, 31 May 2011. 71. In short, the risk factors identified in LP and confirmed in TK were the following: (1) Tamil ethnicity; (2) a previous record as a suspected or actual LTTE member; (3) a previous criminal record and/or outstanding arrest warrant; (4) bail jumping and/or escaping from custody; (5) having signed a confession or similar document; (6) having been asked by the security forces to become an informer; (7) the presence of scarring; (8) return from London or other centre of LTTE fundraising; (9) illegal departure from Sri Lanka; (10) lack of an ID card or other documentation; (11) having made an asylum claim abroad; (12) having relatives in the LTTE. 72. Section 7 of UKBA’s policy instruction on gender issues in asylum claims covers interviewing and assessment of credibility. Section 7.1 notes that each applicant will have been asked at screening to indicate a preference for a male or female interviewer. It explains that it should normally be possible to comply with a request made in advance of an interview. It clarifies that requests made on the day of an interview for a male or female interviewer or interpreter should be met “as far as is operationally possible”. 73. Section 7.2 states that while the substantive asylum interview represents an applicant’s principal opportunity to provide full disclosure of all relevant factors, the disclosure of gender-based violence at a later stage in the determination process should not automatically count against her credibility. It explains that there may be a number of reasons why an applicant might be reluctant to disclose information, for example feelings of guilt, shame, and concerns about family honour, or fear of traffickers or having been conditioned or threatened by them. In particular, it refers to the possibility that the applicant has suffered trauma, which could lead to memory loss or distortion. It provides that decision-makers should be aware of this and how such factors might affect how a woman responds during interview. 74. UNHCR’s “Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees” set out a series of procedural best practices “in order to ensure that gender-related claims, of women in particular, are properly considered in the refugee status determination process” (paragraph 36). Paragraph 35 of the guidelines refers to claimants’ possible reluctance to identify the true extent of the persecution suffered or feared because of, inter alia, trauma and shame. 75. The guidelines also propose that claimants be informed of the choice to have interviewers and interpreters of the same sex as themselves, and they should be provided automatically for women claimants (paragraph 36(iii)). They further suggest that both open-ended and specific questions which may help to reveal gender issues relevant to a refugee claim be incorporated into all asylum interviews, in part because female claimants may fail to relate questions that are about torture to the types of harm which they fear (such as rape, sexual abuse, female genital mutilation, honour killings, forced marriage, etc.) (paragraph 36(vii)). 76. Paragraph 6 of Resolution 1765 on gender-related claims for asylum provides: “In addition to the problem of gender issues not being properly taken into account in the assessment of asylum claims, the asylum procedure in member states often makes it difficult for women to tell their full story. A woman who faces a male interviewer or interpreter can be reluctant to speak freely and give a full account of the violence she has experienced, whether gender based or not. Moreover, the officials involved in the asylum procedure often lack adequate training on gender issues and therefore fail to ask the right questions or to analyse the evidence before them properly. This problem may be exacerbated by the use of country of origin information that ignores gender issues or has little gender relevance.” 77. Paragraph 8 states: “Women and girls seeking asylum in Council of Europe member states have the right to have their protection claims assessed by an asylum system that is sensitive, in all aspects of its policy and operation, to the particular forms of persecution and human rights abuses that women face because of their gender.” 78. Paragraphs 9.3, 9.6 and 9.7 call on member States to ensure that women are automatically provided with assistance and interpretation by female counsellors and interpreters when formulating their asylum claims and filling out their applications; to guarantee that interviewers and interpreters dealing with female asylum seekers are always women; and to ensure that the asylum interview is carried out in a gender-sensitive way and, in particular, that questions relevant to gender-based violence and gender-related persecution are asked.
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test
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001-152325
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ENG
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BGR
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ADMISSIBILITY
| 2,015 |
LOLOVA AND POPOVA v. BULGARIA
| 4 |
Inadmissible
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George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Pavlina Panova;Zdravka Kalaydjieva
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1. The applicants, Ms Ekaterina Atanasova Lolova and Ms Kalina Iliyanova Popova, are Bulgarian nationals, who were born in 1978 and 1998 respectively and live in Toronto. The first applicant is the mother of the second applicant. They were represented before the Court by Ms S. Razboynikova, a lawyer practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms K. Radkova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The first applicant gave birth to the second applicant in 1998 and shortly thereafter ended her relationship with the child’s father, I.P., to whom she was never married. 5. In 2004 the Sofia District Court confirmed an agreement reached between the first applicant and I.P. According to the agreement, the first applicant was to exercise the parental rights related to the upbringing and daily care of the child, and I.P. was to see his daughter under a “free access regime”, which included the right to see the child in private as often as he wished after informing the mother and not less than two weekends a month, and 30 days during the child’s annual holidays. 6. The first applicant got married to a Bulgarian-Canadian citizen in Niagara Falls, Ontario, Canada, on 5 September 2007. She left her job in Bulgaria in April 2008 with a view to joining her husband in Canada. 7. During two periods, 30 November 2007 to 29 December 2007 and 5 July 2008 to 24 December 2008, the first applicant stayed in Canada with her husband. During the rest of the time, she lived in Bulgaria with her daughter. On 26 March 2009, the first applicant settled in Canada. 8. On 1 September 2006 the first applicant brought proceedings before the Sofia District Court under Article 72 of the Family Code 1985. She sought a decision from the court, in the absence of the father’s consent, to allow the child to be issued with a passport and to travel abroad to join her in Canada. 9. The Sofia District Court granted her claim on 3 June 2008. The court found that the possibility for the second applicant to travel abroad would enrich her life and stimulate her personal development. It considered that I.P.’s refusal to allow her to travel was provoked by his personal interest which should not be allowed to bear negatively on the child’s rights, especially since I.P. could seek protection of his rights in separate court proceedings. Nothing in the mother’s personality and demeanour was found to represent a risk for the child’s well-being. Guided by the primary interest of the child, the court recalled the United Nations Convention on the Rights of Children, which was ratified by Bulgaria, and held that the second applicant had the right to move about freely, including to leave her country. 10. Upon an appeal by I.P., the Sofia City Court confirmed the lower court’s findings on 7 May 2009. It found that, as the first applicant had married and settled in Canada, not allowing the daughter to join her there would impede the mother’s ability to act as her primary carer. Those were the terms reached in the 2004 court agreement (see paragraph 5 above), which I.P. had not sought to amend at any time. During the periods which the mother had spent in Canada, the second applicant had been primarily cared for in Bulgaria by the first applicant’s parents. When the second applicant had stayed at I.P.’s house, her daily care had been carried out by the child’s aunt and grandmother. A report by the social services favoured the second applicant’s free travel with her mother and found that both mother and child had strong emotional ties to each other. The child had specifically asked to live with her mother in Canada and to visit her father in Bulgaria during the holidays. The decision of 7 May 2009 of the Sofia City Court was not appealed against and became enforceable on 3 July 2009. 11. On 3 October 2007 the first applicant requested the police to issue a passport to her daughter. In a letter of 5 November 2007 the head of the “Bulgarian Identity Papers” section in the Sofia Police Department refused to issue a passport to the girl. He referred to the absence of a document giving the father’s consent. 12. The first applicant applied for judicial review, challenging the police refusal. On 6 March 2008, the Sofia City Administrative Court, examining the application under Article 145 of the Code of Administrative Procedure, quashed as unlawful the police refusal to issue a passport to the second applicant. The court observed that the absence of both parents’ agreement to the issuing of a passport to their child was not sufficient grounds to justify a refusal. It went on to say that the police should have carried out an in-depth analysis of the specific circumstances of the applicants’ case, being guided in their assessment primarily by the interests of the child. The court returned the case to the police with specific instructions as to how to apply the law when examining the applicant’s request. 13. I.P. appealed against the decision of 6 March 2008. On 29 September 2008 the Supreme Administrative Court upheld the findings of the Sofia City Administrative Court that the police refusal of 5 November 2007 had to be quashed as unlawful. It further noted that, on the question whether or not to issue a passport to a child, the police enjoyed decisionmaking discretion (оперативна самостоятелност) pursuant to section 76 14. In the meantime, on 6 June 2008 the first applicant again applied for a passport for her daughter. On 6 August 2008 the police refused to issue a passport, referring to the fact that the Sofia District Court’s decision of 3 June 2008 in respect of replacing the father’s agreement was not final as I.P. had appealed against it (see paragraph 10 above). 15. On 28 October 2008 the first applicant asked once again that a passport be issued to her daughter, referring to the two judgments of the administrative courts (see paragraphs 12 and 13 above). On 30 October 2008 the police informed both the border authorities and the applicant that a procedure was underway for the refusal of a passport to the second applicant. On 4 February 2009 the police refused the applicants’ request because of the absence of written consent from the child’s father. In doing so, the head of the Sofia Directorate of the Interior referred to the social services’ latest conclusions that, while the first applicant spent time in Canada, the second applicant was well cared for in Bulgaria by the first applicant’s parents. In addition, he found that the girl’s departure from Bulgaria would impede the possibility for the father effectively to exercise his access rights and that would affect his relationship with the child in an irreparable manner. The police concluded that the competent body to decide on the relationship between the father and the child was the relevant district court in accordance with Articles 72 and 106 of the Family Code 1985. 16. After the judgment giving permission to the second applicant’s travel became final (see paragraph 10 above), the police issued a passport to the child on 30 July 2009. She obtained a visa and left for Canada with her mother in December 2009. 17. In January 2009 the first applicant brought proceedings for damages under the Code of Administrative Procedure, as related to the State and Municipalities Responsibility for Damage Act 1988 (“the Act 1988”), on behalf of herself and her daughter. The applicants claimed they had both suffered as a result of the unlawful refusals by the police to issue a passport despite the findings of the administrative courts which had quashed the first refusal. They also claimed damages as a result of the unlawful failure of the police to comply in good time with the final decision of the Supreme Administrative Court of 29 September 2008. The applicants invoked a breach of Article 8 of the European Convention on Human Rights in respect of them both and of Article 2 of Protocol No. 4 to the Convention in respect of the second applicant. 18. The Sofia City Administrative Court partly upheld their claim on 1 July 2009. The court found that the Sofia Directorate of the Interior had to pay: (a) around 1,500 euros (EUR) to the first applicant and around EUR 2,500 to the second applicant, for non-pecuniary damage stemming from the quashing as unlawful of the police refusal of 5 November 2007 to issue a passport to the second applicant; and (b) around EUR 500 for nonpecuniary damage to each applicant, as a result of the police unlawful failure to decide within the statutory 30-day deadline on the applicant’s request for a passport made on 28 October 2008 (see paragraph 22 below and 15 above). The court also awarded around EUR 100 to the applicants for costs and expenses, to be paid by the Sofia Directorate of the Interior. 19. On appeal by the applicants and cross-appeal by the Sofia Directorate of the Interior, on 3 May 2010 the Supreme Administrative Court (SAC) quashed the lower court’s decision in its entirety. It found that the appeal by the applicants had been inadmissible as lodged out of time. Ruling on the appeal by the police, the court observed that the first condition for the application of the Act 1988 was not present, given that a court had not quashed as unlawful an administrative act as required by section 1 of the Act 1988. It then went on to say that the lower administrative court had not decided the matter in the place of the police. Instead, it had returned the case to the interior authorities with instructions as to how to apply the law. The head of the Sofia Directorate of the Interior had then given ample reasons for his refusal of 4 February 2009 to issue a passport. The applicants had not appealed against that refusal. As to the second condition under section 1 of the Act 1988, namely a causal link between the failure by the police to decide in good time on the request for a passport and the damage suffered by the applicants, the court found that such a causal link was missing. More specifically, when deciding whether to issue passports to minors, the police did not enjoy discretion in respect of how to apply the law. Instead, the police were bound to act within the remit of “subordinate competence” (обвързана компетентност). It meant that, in their decision-making process, the police did not need to analyse the circumstances of each case, but rather only had to check whether the conditions listed in law were present or not. Consequently, the SAC concluded in its final decision of 3 May 2010, the damage caused to the applicants did not stem from the police refusal to issue a passport to the second applicant. The police had acted in application of the law. The fact that a passport had not been issued was entirely the result of the first applicant’s failure to submit either an authorisation by the father or by the relevant district court for the second applicant’s travel, as required by law. 20. According to Article 72 of the Family Code 1985, in force until 1 October 2009, parental rights and obligations were to be exercised by both parents together as well as separately by each parent. In case the parents disagreed, the relevant district court resolved the disagreement after hearing both parents and, if need be, the child. The court’s decision was subject to appeal. 21. Under the new Family Code 2009, Article 123 § 2 provides that parental rights and obligations are exercised following an agreement between the parents. If the parents disagreed, they could bring the matter before the district court whose decision is subject to appeal. Article 127 of the Family Code 2009 provides that, in cases where the parents do not live together, if they disagreed on questions related to the child, the disagreement is to be decided by the district court whose decision is subject to appeal. As of 21 December 2010, a new Article 127a specifically provides that the questions related to a minor’s travel abroad and to the issuing to him or her of identity papers, are to be decided jointly by both parents. If the parents disagreed, the issue is to be settled by the district court of the minor’s place of residence. 22. According to section 45, as worded at the time of the events, an application for the issuing of a passport or another identity document for a minor was to be made “in person” (added in 2007) and by the minor’s parents or guardians. The police have to issue a passport within 30 days of such an application (section 48). 23. According to section 23(2), in force as of 2006, every Bulgarian citizen has the right to leave the country, including with an identity card, and to return crossing the borders of Bulgaria with the member States of the European Union. 24. According to section 33, as in force since 2004, every Bulgarian citizen has the right to leave the country and return to it with a passport. That right is subject only to such limitations as may be necessary for the protection of national security, public order, people’s health or the rights and freedoms of others. 25. According to section 76(9), the police may refuse to allow a minor to leave the country in the absence of a written consent for that of his or her parents. If the parents disagreed, the Family Code 2009 specifically provided between 16 October 2009 and 21 December 2010 that the matter was decided in accordance with Article 123 § 2 of the Family Code 2009; as of 21 December 2010 onwards, the matter is to be decided in accordance with Article 127a of the Family Code 2009. 26. Section 11(8), adopted in 2007, provided that, in cases where the authorisation of one parent for the issuing of passport to a minor was missing, such an application had to be submitted together with one of the following documents: a judicial decision allowing the issuing of a passport which had become enforceable; a judicial decision depriving the missing parent of his or her parental rights; or, a death certificate of the parent who had not given his agreement. 27. According to Article 145 § 1, individual administrative acts are subject to judicial review as regards their lawfulness. Judicial review proceedings in respect of administrative acts are two-instance proceedings (Article 131) and they suspend the enforcement of the appealed administrative acts (Article 166 § 1). 28. According to Article 203, individuals or legal persons may bring claims for compensation for damage caused to them by an unlawful act or failure to act by an administrative body, when that act or failure to act have been quashed by a court. For questions not covered by this Code, the State and Municipalities Responsibility for Damage Act 1988 (“the Act 1988”) is applied. 29. Section 1(1) of the Act 1988 provides that the State and municipalities are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties. Section 4 of the Act 1988 provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission. The State’s liability is strict, i.e. no fault is required on the part of the civil servants in the commission of the unlawful acts. 30. The Supreme Court of Cassation held in a 2001 decision concerning a request for the issuing of a passport to a minor (реш. № 21 от 30.01.2001 г. на ВКС по гр. д. № 717/2000 г., II г. о.) that all questions related to the exercise of parental rights had to be decided by the relevant district court if the parents could not reach an agreement. In subsequent decisions (реш. от 11.11.2008 г. на ВКС по к. д. № 4252/2007, V г. о.; опр. № 396 от 18.11.2008 г. на ВКС по ч. гр. д. № 1672/2008, III г. о.; реш. № 1200 от 19.12.2008 г. на ВКС по гр. д. № 2871/2007; опр. № 84 от 16.02.2009 на ВКС по ч. гр. д. № 66, IV г. о.) the Supreme Court of Cassation reaffirmed its findings that questions related to the travel of minors abroad had to be decided specifically by the civil courts in accordance with Article 72 of the Family Code 1985, and not by the police following the administrative procedure under section 76(9) of the Bulgarian Identity Documents Act (see paragraphs 22 and 27 above). In doing so, the highest national court referred to its constant practice in respect of questions related to the exercise of parental rights. In two of the above-mentioned decisions (see реш. от 11.11.2008 г. на ВКС по к. д. № 4252/2007, V г. о.; опр. № 396 от 18.11.2008 г. на ВКС по ч. гр. д. № 1672/2008, III г. о.) the Supreme Court of Cassation quashed the findings to the contrary of two regional courts (see paragraph 31 below). 31. Two regional courts held in 2007 and 2008 respectively that claims under Article 72 of the Family Code 1985 were inadmissible because there existed an administrative procedure which was sufficient for obtaining a passport for a minor even where one of the parents disagreed (see реш. на окр. съд Хасково от 26.04.2007 г. по гр. д. № 93/2007; and опр. № 378 от 31.07.2008 г. на окр. съд Габрово по ч. гр. д. № 220/2008). 32. In a legal column, published on 9 June 2003 in a daily newspaper with national circulation called “24 Hours”, a Sofia District Court judge advised that a claim under Article 72 of the Family Code 1985, seeking the permission for a minor’s travel abroad with one parent only, was inadmissible and the correct avenue for settling the matter was via the administrative procedure under the Bulgarian Identity Documents Act 1998. 33. The Convention is in force in respect of Bulgaria as of 1 August 2003. It provides as follows: “The objects of the present Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” “The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” 34. The Convention was ratified by Bulgaria on 3 June 1991. It provides as follows: “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” “1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. 2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.” “1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”
| 0 |
test
|
001-147624
|
ENG
|
HUN
|
CHAMBER
| 2,014 |
CASE OF CAVANI v. HUNGARY
| 4 |
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
|
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
|
6. The first applicant was born in 1971 and lives in Formigine (Italy). The second and third applicants were born in 2003 and 2004 respectively and apparently live with their mother in Budakeszi (Hungary) or somewhere nearby. 7. In June 2004 the first applicant’s then wife, whom he had married in 2002 and who is the mother of the second and third applicants, took the second and third applicants from Italy, where the family was living, to Hungary. 8. In August 2004 the first applicant travelled to Hungary. The family was supposed to return to Italy but the first applicant’s wife refused to leave and the first applicant returned to Italy alone. 9. In December 2004 the first applicant joined his family in Hungary for the Christmas holidays and his wife again refused to return to Italy with him and kept the children with her. 10. In February 2005 the first applicant wrote to his wife requesting that she return to Italy with their daughters. 11. On 3 March 2005 the first applicant asked the Italian Ministry of Justice to initiate proceedings for the return of the children to Italy. On 23 March 2005 he also instigated proceedings before the Court of Modena (Italy) for separation from his wife and the return of his daughters to Italy. 12. On 25 April 2005 his wife started parallel divorce proceedings before the Buda Surroundings District Court. 13. On 2 May 2012, the applicants lodged a complaint before the European Commission alleging a violation of Article 11 of the Council Regulation (EC) no. 2201 of 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility (“the EU Regulation on Recognition of Judgments”), which is still pending. 14. In 2011 the marriage between the first applicant and his ex-wife was annulled (see paragraph 26 below). As at the date of introduction of the present application, the first applicant had been unable to see his daughters since 2005. 15. On 25 August 2005 the Pest Central District Court found that the first applicant’s ex-wife was keeping the children in Hungary illegally, in violation of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). However, it considered that given their young age, the children needed to be cared for by their mother and therefore refused to order their return to Italy. 16. On 9 November 2005 the Budapest Regional Court quashed the decision of the Pest Central District Court and ordered that the children be returned to Italy by 10 December 2005 at the latest, but this failed to happen. 17. An enforcement order was issued against the first applicant’s ex-wife by the Buda Surroundings District Court on 26 April 2006 and upheld by the Pest County Regional Court on 5 September 2006. The decision was not enforced. 18. On 5 February 2007 the Buda Surroundings District Court ordered the enforcement of the decision of 9 November 2005, this time with the assistance of the police. Again, the decision was not enforced. 19. On 21 July 2010, following the issue of a European arrest warrant by the Italian authorities, the first applicant’s ex-wife was arrested by the Hungarian police but was released shortly thereafter with no progress having been made regarding a possible return of the second and third applicants to Italy. 20. On 14 October 2011, she was sentenced in absentia by the Buda Surroundings District Court to a 200-day fine for illegally changing the custody of a minor. 21. On 8 November 2012 the headmaster of Széchenyi István Primary School, located in Budakeszi, initiated proceedings before the Budakeszi district guardianship authority to bring the second and third applicants under its protection. 22. On an unspecified date, the first applicant and his ex-wife reached an agreement pursuant to which the second and third applicants would remain with their mother in Hungary but would be able to visit the first applicant in Italy several times per year. In the light of that agreement, on 19 February 2013 the first applicant requested the suspension of the enforcement proceedings against his ex-wife, and the Buda Surroundings District Court duly suspended the proceedings until 19 August 2013. 23. On 16 August 2013, the first applicant withdrew his enforcement request. 24. Following a proposal drafted by the competent Social and Child Welfare Service (HÍD Szociális és Gyermekjóléti Szolgálat) ‒ which was of the view that the children were no longer in danger ‒ the Buda Surroundings District Court discontinued the enforcement proceedings. 25. On 28 November 2005, the Court of Modena granted exclusive custody of the children to the first applicant. 18. On 15 December 2005, the first applicant pressed criminal charges against his ex-wife for child abduction. 26. On an unknown date the Criminal Court of Modena sentenced the ex-wife to 18 months’ imprisonment, suspended. 27. The marriage between the first applicant and his ex-wife was annulled by the ecclesiastical tribunal of the Umbria region, whose decision was granted exequatur by the Court of Appeal of Bologna on 18 July 2011. 28. On 4 October 2011, following an appeal by the prosecutor, the Court of Appeal of Bologna sentenced the applicant’s ex-wife to 18 months’ imprisonment, suspended. 29. The first applicant’s ex-wife appealed against her conviction before the Italian Court of Cassation. One month before the hearing the first applicant withdrew his criminal suit in the hope of appeasing the situation and allowing his ex-wife to travel freely to Italy with their two daughters. 30. On 30 November 2012 the Court of Cassation quashed the judgment of the Court of Appeal of Bologna in the light of the first applicant’s decision to withdraw his criminal suit.
| 1 |
test
|
001-180152
|
ENG
|
ROU
|
COMMITTEE
| 2,018 |
CASE OF LIŢĂ AND S.C. GEORGIANA IMPORT EXPORT S.R.L. v. ROMANIA
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
|
4. The relevant details of the application are set out in the appended table. 5. The applicants complained of the excessive length of civil proceedings.
| 1 |
test
|
001-148658
|
ENG
|
TUR
|
COMMITTEE
| 2,014 |
CASE OF ONAR v. TURKEY
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
|
András Sajó;Helen Keller;Robert Spano
|
4. The applicants were born in 1964, 1958, 1993, 1997, 1997, 2000, 1998, 1994, 1990 and 1989 respectively and live in Batman. 5. On 26 June 2005, the first two applicants’ son and the other applicants’ brother, A.O., aged fourteen at the time, went into Batman Stream to swim and subsequently drowned. 6. According to the applicants, the uncontrolled draining of sand from Batman Stream of Dicle River changed the stream’s ecological balance. Eventually, holes and vortexes which occurred as a result of uncontrolled sand drain allegedly contributed to A. O.’s drowning. 7. Criminal proceedings where initiated against the Beysan joint stock company (“the company”), which was conducting the sand mining business at the time of events, and the Batman Governor’s office which issued the necessary permits to run the sand mine. On 5 March 2005, the criminal proceedings before the Batman public prosecutor’s office concluded with a decision not to prosecute. On 12 March 2006, the first applicant appealed against the non-prosecution decision. However, on 19 March 2007 his appeal request was also rejected by the Batman Assize Court. 8. While the criminal proceedings were pending, the first applicant requested the determination of evidence from the Batman Magistrates’ Court into the incident which led to A.O.’s death. Two expert reports were issued following the scene investigation, conducted by the Batman Magistrates’ Court on 8 July 2005. According to the expert reports, it was stated that the uncontrolled sand draining from Batman Stream changed the natural flow of the water and caused artificial holes and vortexes which amounted to three meters in depth in some parts. Despite these dangers, there were no warning signs. 9. On 27 July 2005 the applicants being convinced that the failure of the authorities and the company to take necessary safety measures to protect A.O.’s right to life, applied to the civil court of first instance with a compensation request. They sought a total of 75,000 Turkish liras (TRY) (46,500 euros (EUR) at the time) in compensation for both pecuniary and non-pecuniary damages. 10. The applicants also requested legal aid for the court fees. On 15 August 2005, the Batman Civil Court of First Instance ordered the Security Directorate in Batman to investigate the economical means of the applicants. According to the report submitted by the Security Directorate, it was revealed that the applicants were unemployed and lived on state benefits and help from their neighbours. Nevertheless, the trial court rejected the applicants’ legal aid request on the basis of Sıddık Onar, the father of the deceased’s, age and his ability to work. 11. On 1 December 2006 the trial court notified the applicants that they were required to pay a court fee of TRY 214.76 (approximately EUR 115) within ten days in order to continue the proceedings and that the proceedings would be discontinued if they failed to do so. 12. On 29 December 2006 the Batman Civil Court of First Instance decided to discontinue the proceedings as the applicants had not paid the court fees.
| 1 |
test
|
001-170343
|
ENG
|
POL
|
CHAMBER
| 2,017 |
CASE OF KACPER NOWAKOWSKI v. POLAND
| 3 |
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
|
5. The applicant was born in 1976 and lives in Białystok. 6. The applicant is deaf and mute. He uses sign language to communicate with other people. 7. The applicant and A.N. married on 20 August 2005. A.N. suffers from a hearing impairment and has had a hearing implant fitted. She communicates both orally and through sign language. 8. The son (S.N.) of the applicant and A.N. was born on 10 December 2006. He also suffers from a hearing impairment. In February 2007 the applicant and his wife separated. On 11 June 2007 A.N. filed a petition for divorce. 9. In the course of the divorce proceedings, on 19 July 2007 the Białystok Regional Court issued an interim decision on the applicant’s contact with his son. Under that decision, the applicant could visit his son every Tuesday and Thursday between 4 p.m. and 6 p.m. and every Sunday between 2 p.m. and 5 p.m. at the child’s place of residence and without the presence of any third parties. 10. The court ordered experts from the Białystok office of the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny “the RODK”) to prepare an opinion on the suitable form and frequency of the applicant’s contact with his son. In the course of his interview with the experts, the applicant underlined his commitment to maintaining contact with the child, without giving any details. The experts established that the applicant had not been visiting his son as frequently as he was allowed under the interim decision of 19 July 2007. The last contact had occurred on 25 August 2007. 11. In their opinion, dated 15 October 2007, the experts underlined that the emotional ties between the mother and the child were strong and natural. However, the ties between the applicant and his son were weak and superficial. In the view of the experts, taking into account the necessity to ensure the proper development of the child, contact between the applicant and the child should take place four times a month and last two hours on each occasion. 12. On 15 November 2007 the Białystok Regional Court granted a decree of divorce without ascribing blame for the breakdown of the marriage. In its judgment the court also ruled that parental authority should be exercised by both parents and that the child should reside with the mother. It further ruled that the applicant had a right to see his son on the first three Fridays of each month from 4 p.m. until 6 p.m. and on every fourth Sunday of each month from 11 a.m. until 1 p.m. Contact should take place at the mother’s home in her discreet presence but in the absence of third parties. The applicant was further ordered to pay child maintenance. 13. It appears that neither of the parties appealed against the judgment, which consequently became final on 6 December 2007. 14. In August 2011 the applicant filed an application with the Białystok District Court for a change to his contact arrangements. He asked the court to be allowed to have contact with his son on every second and fourth weekend of each month from 3 p.m. on Friday until 6 p.m. on Sunday, away from the mother’s home. He also asked to be allowed to see his son for some time over the Christmas and Easter periods and to spend with him half of the winter holidays and half of the summer school holidays. The applicant argued that the child had already reached the age of five and needed increased contact with his father in order to strengthen their ties. 15. The applicant admitted that after the divorce he had not seen his son for one year on account of his health problems. He submitted that his son was happy to spend time with him and to play with him. The applicant asserted that he had been able to provide appropriate care to his son and that in the event of need he could count on the support of his family. It was the mother of the child who had obstructed his contact with the child and made the atmosphere unfriendly. For example, she refused to pass on oral messages from their son to the applicant. The mother did not inform him about important decisions concerning the child and tried to marginalise him. 16. The mother submitted that the applicant had remained passive during his meeting with S.N. and that she had not obstructed those meetings. In her view, S.N. did not have any emotional ties with his father and did not need contact with him. Further, the applicant would be unable to properly care for S.N. The mother lived together with her parents and her son. 17. On 4 November 2011 a court guardian submitted a report to the court. According to that report, the applicant had not been visiting his son regularly on account of his being treated for depression and other illnesses. He had not seen his son since 12 October 2011. However, the mother of the applicant had been visiting her grandson regularly. 18. On 15 March 2012 the applicant applied for an interim decision and asked for the right to have contact with his son during the second day of the Easter holidays, from 10 a.m. to 5 p.m., and to take him away from his place of residence. On 23 March 2012 the Białystok District Court issued an interim decision allowing the applicant to visit his son during the second day of the Easter holidays from 11 a.m. to 1 p.m. at the child’s place of residence. 19. On 30 April 2012 the RODK issued an opinion commissioned by the District Court. It had been prepared by a psychologist, an education specialist and a psychiatrist who had met the parents and the child and had been assisted by an interpreter of sign language. The experts stated that emotional ties between the mother and the child were strong – indeed, the mother had a tendency to be overprotective. The child’s ties with the father were superficial and weak. The child recognised the applicant as his father but did not consider him a part of his family. The father’s ties with the child were positive, but founded on limited experience and high expectations. These ties were also affected by the communication difficulties between them. The experts further noted that the conflict between the parents impeded their cooperation with regard to the child. They suggested that the parents be counselled by a specialist with a view to their being taught how to accept each other as a parent. 20. The experts opined that an increase in contact, as requested by the applicant, was not advisable, on account of the limited level of communication between him and the child, the child’s age and history, and the strength of the child’s ties with the mother and maternal grandparents. They recommended, however, that contact should also take place outside the mother’s home (at playgrounds, during walks) but in her presence. The mother should cooperate with the father and support him in making his contact with the child more diverse. The experts noted that the ability of the applicant to care independently for his son was considerably limited. In their view, the interests of the child required that the parents cooperate with each other, despite the communication problems. The experts added that the mother should be more proactive in this regard but that the father should not contest the mother’s decisions concerning the child. 21. The applicant contested the experts’ findings and alleged that the opinion should have been prepared with the assistance of a specialist in deaf education and a psychologist specialising in the needs of deaf people. He claimed that their finding that contact could not take place without the presence of the mother on account of his (that is to say the applicant’s) disability amounted to discrimination. The experts had also disregarded the possibility of the paternal grandmother rendering assistance and of ordering the parents to undergo family therapy. 22. The District Court heard evidence from the RODK experts. The psychologist, G.H., admitted that the RODK did not have specialised methods of examining deaf people but stated that such methods were not necessary in respect of determining the advisability of maintaining contact. She noted that the child was well-developed and rehabilitated (zrehabilitowanym). The main obstacle in respect of contact was the conflict between the parents and the lack of cooperation between them. Such circumstances created a particular difficulty in the case of a child with a hearing impairment. The psychologist observed that the applicant’s disability also constituted an objective obstacle. In her opinion, contact should take place two to three times a month. 23. The court dismissed the applicant’s request for a second expert opinion since the earlier opinion was complete and comprehensive. 24. The court also heard the parties and witnesses (family members). It further took into account information submitted by a court guardian after visiting the applicant’s and the mother’s respective homes, together with relevant documentary evidence. 25. On 9 August 2012 the Białystok District Court dismissed the applicant’s application for a change to the contact arrangements. 26. The court established that the parents of S.N. remained in conflict and could not reach an agreement regarding the child’s contact with the father. Since September 2009 the child had attended a nursery school with an integration unit, where he had remained under the supervision of a specialist in deaf education, a speech therapist and a psychologist. He suffered from a hearing impairment and used a hearing aid. The child required specialised medical care and followed a rehabilitation programme. He was certified as having a second-degree disability. 27. Having regard to all the evidence, and in particular the expert opinion, the court found that the requested change to the contact arrangements would not be in the child’s best interests. It was true that the first decision in respect of contact had been given five years previously, when S.N. had been a baby and when the presence of his mother during contact had been justified by the child’s age. However, the age of the child was not the only element to consider. Other relevant elements were the specifics of the child’s development, his state of health, his disability, the need for his permanent medical rehabilitation and his heavy dependence on his mother and maternal grandparents. The court found that these elements still justified the discreet presence of the mother and at her home during the applicant’s contact visits. It noted that the requested change to the contact arrangements would be too far-reaching, since the applicant wanted to see his son more often, outside S.N.’s place of residence and without the mother being present. The court observed that except for the first two months of the child’s life the applicant had not lived with him or cared for him. The applicant admitted that he had not always kept to scheduled visits. Sometimes the reasons for this had been beyond his control (health problems or evening school commitments) and sometimes contact had been obstructed by the mother. However, in consequence, his limited and irregular involvement in the child’s life had adversely influenced the emotional ties between the father and the son. 28. The court underlined that the applicant had not been fully availing himself of his rights to contact his son, as granted by the divorce judgment. Nonetheless, once their ties were strengthened and the applicant made full use of the rights already granted to him, it would be possible to extend contact. 29. The court also found that it could not disregard the communication problems between the applicant and his son. It did not agree with the applicant that this constituted a discriminatory measure against him; rather, it constituted an objective and independent factor that hampered his communication with the child. The applicant, irrespective of his own and his son’s disability, had an incontestable right to contact with his son. However, the communication problem should be taken into account in regulating the contact arrangements so they would remain as favourable as possible to the child. The court noted that the applicant used mostly sign language (and articulated a few single words), while the child communicated only orally, so communication difficulties naturally arose. For this reason, it was still justifiable that the mother, who was able both to use sign language and communicate orally, should be present during the applicant’s visits. The mother’s presence, which provided the child with a sense of security, could also help him to relax during his meetings with the father. The court disagreed with the applicant that the paternal grandmother could ensure proper communication between him and his son. The issue was not only about interpreting between sign language and speech but also about ensuring security and stability, which could only be provided by the mother. The applicant’s son did not know his paternal grandmother well and so her presence would not compensate for the absence of his mother. 30. The court underlined that the applicant’s contact with his son should first and foremost ensure the security and stability of the child. The stress to which he would be exposed in the event of a change to his current environment and in the absence of persons with whom he usually spent his time would certainly jeopardise the child’s well-being and damage his sense of security. The court dismissed the applicant’s argument that the child spent most of his day in a nursery school (that is to say outside his home and without his mother), so he could easily stay at the applicant’s father’s home. It noted that the mother had been preparing her son for nursery school over a long period of time and had at first attended the school with him for short periods of time so he could become familiar with the place. 31. The court observed that the child’s paternal grandmother had not visited her grandson for some time and was therefore not a person with whom the child was familiar or who could assist as an interpreter between the applicant and his son. 32. The fact that the child had been paying short unsupervised visits to a neighbour of the mother’s family did not support the applicant’s argument either. The court noted that the neighbour was a familiar person to the child, since he had been regularly visiting the child’s family. In addition, the unsupervised visits to the neighbour’s flat did not last longer than one hour. 33. Lastly, the court did not consider it necessary to impose an obligation on the parents to undergo family therapy. It noted that the experts had opined that both parents required contact with a specialist who would assist them in mutually accepting each other as a parent. However, the only suitable place for such therapy for persons with impaired hearing was the premises of a foundation (fundacja) attached to the nursery school attended by the child. The mother stated that she already attended a parent support group there and the applicant declared that he could do the same. In these circumstances, the court found that there was no need for its intervention. 34. The applicant lodged an appeal with the Białystok Regional Court. He argued that the District Court had failed to respect the principle of non-discrimination against deaf and mute persons by dismissing his application for unsupervised contact with his son. He invoked Article 4 § 1 of the Convention on the Rights of Persons with Disabilities. The applicant further argued that the lower court had erred in holding that the child’s interests did not justify a change to contact arrangements. The expert opinion indicated that the presence of the mother during contact created tensions between the parents and that this was unfavourable to the child. In addition, according to some witnesses, the contact took place in the presence of third parties. 35. The applicant contested the lower court’s finding that the child’s paternal grandmother was a stranger to him; he argued that the child would not be exposed to stress in the event of contact without the mother’s presence and outside her home in view of the fact that the child attended nursery school and was cared by a neighbour a few times a week. Lastly, the applicant contested the refusal to order a supplementary expert opinion. 36. On 23 November 2012 the Białystok Regional Court dismissed the applicant’s appeal. It found that the lower’s court assessment of the evidence had been correct and that the refusal to order a supplementary expert opinion had been justified. 37. The Regional Court noted that the contact arrangements could be amended if the interests of the child so required (Article 1135 of the Family Code). It concurred with the lower court that there was no justification for a change to the existing arrangements since the applicant already had the possibility of regular contact with his son and if used this would enable the parties to strengthen their ties. The findings of the RODK experts clearly supported the conclusion that no change was necessary. The Regional Court also agreed that the existing conflict between the parents would certainly prevent the applicant from benefitting from increased contact. It stressed that the priority of the court in such cases was to take into account the interests of the child, not the interests of either of his or her parents. 38. It further underlined that the presence of the mother during visits was necessary in order to ensure the child’s sense of security since the mother was the primary carer, with strong ties to the child. The paternal grandmother could not provide the same sense of security. In addition, the mother’s presence would solve the problem of communication between the applicant and the child. The Regional Court did not agree with the applicant that the lower court’s taking into account the issue of communication barrier had amounted to discrimination against him. The communication barrier was a real obstacle to the forging of ties between the applicant and his son and it could not be disregarded, given that the interests of the child were of primary consideration, overriding the individual interests of the parents. The Regional Court stressed that this constituted an objective obstacle, not a form of discrimination against the applicant. 39. In July 2011 A.N. brought an action in the Białystok District Court for an order limiting the scope of the applicant’s parental authority over S.N. to those issues that concerned their son’s education. She submitted that the applicant had refused to give his consent to an identity document being issued for the child. 40. In October 2011 the applicant brought a counteraction seeking an order to compel A.N. to undergo family therapy. He argued that A.N. was acting to the child’s detriment by refusing to cooperate with the applicant in matters concerning the child. She also humiliated and insulted the applicant in the child’s presence and undermined his authority. 41. On 2 August 2012 the Białystok District Court restricted the applicant’s parental authority over S.N. to issues concerning his education. It dismissed the applicant’s counteraction. 42. The court relied on the opinion prepared by the experts of the RODK for the purposes of the proceedings. The experts concluded that the joint exercise of parental authority was practically impossible. The reason for this was the permanent conflict between the parents, as well as the communication difficulties. The experts recommended that both parents undergo therapy with a view to developing their parenting skills. They further pointed out that that the possibility of communication between the applicant and his son was significantly restricted because of the different method that each used to communicate. In the view of the experts, the mother of the child properly exercised her parental authority, in particular with respect to the child’s needs, the necessity of treatment, and the development of the child’s social skills. 43. Having regard to the evidence, the court found that it was justifiable to restrict the applicant’s parental authority and limit it only to matters concerning the child’s education. Its decision was motivated by the lack of agreement between the parents in respect of the exercise of parental authority. The applicant was not to be solely blamed for this situation. Furthermore, communication with the applicant was limited on account of his disability; however, the mother had been aware of this fact since the beginning of their relationship. The court further took into account the fact that the child was being raised by the mother, the parents lived apart, and there was a communication barrier between the applicant and the child. This was of importance in respect of matters concerning the child’s health. The court underlined that the fact that communication between the applicant and his son was limited did not mean that the applicant was a bad father. The court found that it was not necessary to give the applicant the possibility to have a say in matters concerning the child’s medical treatment since these were sometimes urgent – therefore, it was the mother, with whom the child lived, who should decide on them. 44. With regard to the applicant’s request for the mother to be obliged to undergo family therapy, the court did not find this justified. It took into account the fact that the mother had already been attending a support group and found no reasons to formally oblige her to undergo therapy. It was established that the mother had independently taken important decisions concerning the child of which she had not informed the applicant and that she was overprotective. Nonetheless, the court found that she properly exercised her parental authority and that the child’s welfare was not endangered. 45. The applicant appealed. 46. On 23 November 2012 the Białystok Regional Court dismissed the applicant’s appeal. It underlined that the court of first instance had comprehensively assessed the evidence in the case. In the view of the Regional Court, the limitation of the applicant’s parental authority was in the interests of the child. It ruled that the communication barrier constituted an objective obstacle to relations between the applicant and his son and that taking it into account could not be considered to constitute a form of discrimination against the applicant.
| 1 |
test
|
001-150697
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,014 |
ERCAN AND OTHERS v. BULGARIA
| 4 |
Inadmissible
|
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
|
1. The applicants, Ms Derya Ercan, Ms Kardelen Ercan, Ms Nazmiye Ercan, Mr Zeki Ercan, Ms Nurcan Taçar, Ms Fatma Tutuk, Mr Ali Ercan, Mr Engin Ercan and Mr Zayim Ercan are Turkish nationals who were born in 1982, 2001, 1936, 1961, 1971, 1963, 1959, 1970, and 1965 respectively and live in Kırklareli, Turkey. They were represented before the Court by Mr M. Demir, a lawyer practising in Istanbul. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice. 3. The Turkish Government, who intervened in the case in accordance with Article 36 § 1 of the Convention, were represented by their Agent. 4. The applicants are relatives of Yalçın Ercan, who died on 17 April 2008 while resisting arrest by Bulgarian coastguards. Mr Ercan was the first applicant’s husband, the second applicant’s father, the third applicant’s son and the remaining applicants’ brother. He was working as a fisherman off his home village of Beğendik, which is located on the seafront at the north-westernmost point of Turkey, close to the border with Bulgaria. 5. Early in 2008 the Regional Border Service in Burgas (“the RBS”) registered numerous incursions into Bulgarian waters in the Black Sea by Turkish fishermen’s vessels. In all cases it informed the Turkish border authorities, and the problem was discussed during a bilateral meeting on 13 February 2008. Data collected at the observation and radiolocation station in the border village of Rezovo showed that one of the most frequent trespassers was the fishing vessel Ömer Reis-2 domiciled at the mouth of the Rezovska River (Mutludere). 6. By order of the Bulgarian Minister of Agriculture the fishing of turbot in Bulgarian territorial waters was prohibited between 15 April and 15 June 2008. In order to prevent possible poaching by Turkish fishermen, on 14 April 2008 the head of the RBS detached to the border area a “Mobile Border Control Group”, which included four coastguards under the command of Chief Inspector N.K. 7. At 6.39 a.m. on 17 April 2008 the observation station in Rezovo registered a fishing vessel, which had penetrated about one nautical mile into Bulgarian territorial waters. The fishermen on board were observed pulling fishing nets out of the water; it appeared that the nets had been placed there earlier. 8. At 6.50 a.m. the Mobile Border Control Group was sent to intercept the vessel. Once the officers approached it, on board an inflatable motorboat, they recognised it as the Ömer Reis-2. There were three people on board – Yalçın Ercan and two of his brothers, Engin and Zayim Ercan (the eighth and ninth applicants). 9. When they spotted the coastguard boat, Yalçın and Zayim Ercan, who were on deck, started cutting off the nets, and Engin Ercan, at the helm, directed the Ömer Reis-2 towards Turkish territorial waters. The coastguard boat caught up with their vessel. Using gesture, and once they were nearer, vocally in Bulgarian and English, the coastguards gave orders to the fishermen to stop. The Ömer Reis-2 did not stop. Instead, Ergin Ercan steered it towards the coastguard boat, which was smaller, attempting to overturn and sink it. At the same time, using long wooden boathooks, and once the two boats were close enough, Yalçın and Zayim Ercan repeatedly attempted to hit the coastguards and puncture their boat’s inflatable sides. 10. On seeing this, Chief Inspector N.K. gave his officers the order to fire warning shots. More than twenty shots were fired. Although they were aimed into the air and not at anyone, some of them hit the Ömer Reis-2’s port side and the cabin at the helm. They did not injure anybody on board. 11. As this did not make the Ömer Reis-2 stop, and seeing that its crew continued behaving aggressively, attempting to puncture and sink the coastguard boat, Chief Inspector N.K. ordered his officers to board the fishing vessel. 12. The coastguards were wearing armoured life jackets, which did not permit them to also wear holsters. That is why, upon boarding the Ömer Reis-2, they attached their weapons, Scorpio sub-machine guns, to special metal rings on their jackets. As ordered by Chief Inspector N.K., the guns had their safety catches on. None of the guards had a gun in their hand. 13. Officer M.T. was the first one to board the fishing vessel, followed by Officer N.P. Their task was to immobilise and handcuff Yalçın Ercan. They managed to wrestle him to the ground, after which Officer N.P. advanced towards the helm to attempt to stop the vessel. Officer M.T. and Yalçın Ercan continued struggling on a pile of fishing nets. On several occasions during the fight Yalçın Ercan attempted to grab Officer M.T.’s gun, which had come unfastened from the ring on his jacket and was hanging by a short cord. Finally, Officer M.T. managed to immobilise Yalçın Ercan and handcuff him. By that time another officer, Z.P., had immobilised Zayim Ercan, and Officer N.P. was struggling with Ergin Ercan at the helm, attempting to stop the vessel. Chief Inspector N.K. had remained in the coastguard boat. At this point Chief Inspector N.K. received information that the two boats were about to enter Turkish territorial waters, and ordered his men to release the fishermen. 14. While Officer M.T. was removing Yalçın Ercan’s handcuffs, the latter made sudden abrupt movements, pushing the officer back on to the fishing nets. M.T. immediately jumped forward. At the exact moment when he put his hands on Yalçın Ercan, three gunshots were heard. Officer M.T. heard Yalçın Ercan groan and looked at his gun. It was between his legs (he was kneeling), entangled in the fishing nets, its muzzle pointing towards Yalçın Ercan’s back. He took it and saw that it was set at automatic fire. He switched the safety catch back on. He stood up and went to the cabin, where he helped Officer N.P. immobilise Ergin Ercan and stop the fishing vessel. 15. Immediately after that the officers took Yalçın Ercan on to their boat and called Rezovo to say that a man had been injured. Once on land, they transferred Yalçın Ercan into the ambulance which had arrived. However, he died on the way to hospital. 16. Later that day the Ömer Reis-2 was towed by a coastguard cutter to the port of Tsarevo. 17. Criminal proceedings in connection with Yalçın Ercan’s death were opened on 17 April 2008. 18. On the same day the investigator in charge of the case inspected the two boats involved in the incident. It was noted that the Ömer Reis-2 was 7.4 metres long and 2.4 metres wide. Two dark-red stains were found on the deck. There was also a pile of turbot fishing nets; when they were moved, two cartridge cases fell out of them. On the walls of the small cabin at the helm there were eight bullet holes. Another bullet was found embedded in the vessel’s port deck. 19. The coastguard boat was 4.5 metres long and 2 metres wide. Several traces of the impact of hard objects were observed on its left inflatable side. 20. The coastguards who had participated in the operation were interviewed on 17 April 2008. Officer M.T. stated that when the lethal shots were fired he had not initially been aware that they had come from his gun. 21. Officer Z.P. said that after the fatal shots he had seen M.T.’s gun caught in the fishing nets. 22. Officer N.P. stated that before boarding the fishing vessel he had been hit by one of the fishermen with a boathook. He had not heard the shots which had injured Yalçın Ercan because at that moment he had been wrestling with Yalçın’s brother Ergin. He explained that he and his colleagues had been trained to respond to similar situations. Lastly, he said that he was very familiar with Scorpio sub-machine guns. 23. The group’s commander, Chief Inspector N.K., said that he had judged Scorpio sub-machine guns the most appropriate weapons to take for the operation because of their versatility. He explained that all members of the group had also been carrying smaller guns and that in the boat they had had an electroshock Taser. He said that during the operation he had been in constant contact with the observation station in Rezovo and the RBS. He had sought and obtained the RBS’s prior approval before ordering his men to fire warning shots. 24. Officer M.T. was once again examined on 23 June 2008, and Chief Inspector N.K. and Officers N.P. and Z.P. were examined on 2 July 2008. They reiterated the statements they had made earlier. Chief Inspector N.K. said in addition that he had ordered the warning shots because the fishermen were directly endangering his men’s lives. Officer Z.P. explained that he was not very familiar with Scorpio sub-machine guns. He said that he, N.P. and M.T. had found these guns awkward to carry, as it had been impossible to wear holsters and they had had to attach the guns to their jackets. 25. Zayim and Engin Ercan were interviewed on 17 April 2008. They stated that they had not obeyed the coastguards’ order to stop because they believed that they were still in Turkish territorial waters. 26. They were interviewed again on 22 May 2008. Zayim Ercan stated that he and his brother Yalçın had not attempted to resist arrest. Engin Ercan said once again that he believed that the vessel had not left Turkish territorial waters. Once the coastguard boat had approached, he had aimed to prevent a clash with it. He had not known what his brothers were doing in the rear part of the boat. Like his brother Zayim, he stated that the three of them had done nothing to resist arrest. 27. The two officers who had been on duty at the observation station in Rezovo in the early hours of 17 April 2008 were interviewed on 5 May 2008. They explained that they had observed the Ömer Reis-2’s movements, and had kept Chief Inspector N.K. informed of them. They said that they had transferred to the RBS his request to be authorised to order warning shots, had some time later been told by him that a Turkish fisherman had been wounded, and had then called an ambulance. 28. A post-mortem examination of Yalçın Ercan’s body was carried out on 17 April 2008. It found three gunshot wounds, situated close to each other, in the middle part of the back. The bullets had touched the heart, the liver, the lungs and the small intestines, thus causing death. There was another wound on Yalçın Ercan’s head, caused by a hard object, which was unrelated to the cause of death. 29. Zayim and Engin Ercan were examined by a doctor on 22 April 2008. He observed a number of small bruises on their bodies. In addition, Zayim Ercan had a black eye and a small cut close to the left eyebrow. 30. Officer N.P. was examined on 18 April 2008. Both his hands were bruised and swollen. 31. A ballistics report was drawn up on 12 June 2008. It confirmed that the shots which had fatally wounded Yalçın Ercan had been fired by the gun used by Officer M.T., and concluded that they had been fired at a distance of between 30 and 60 cm. A combined medico-ballistic expert report dated 28 August 2008 showed in addition that at the moment of the fatal shots Yalçın Ercan had been lying on his right side, with the upper part of his body bent forwards. The report concluded further that the lethal shots had been fired within a very short time frame. 32. Several reconstructions of the scene of the incident staged on board the Ömer Reis-2 showed that Officer M.T.’s gun could have fired a shot without anyone touching the trigger, if it was entangled in the fishing nets and at the moment when Officer M.T. was thrusting his body abruptly forwards. It was also shown to be possible, when the gun was being rubbed against a human body, for its switch to move to automatic mode. Lastly, it was shown that a shot could also be fired when the participant playing the role of the victim in the reconstruction attempted to grab the gun with his left arm stretched behind his back. 33. On 19 June 2008 the prosecutor in charge of the case brought charges against Officer M.T. for causing death through negligence. 34. On 16 October 2008 he decided to discontinue the criminal proceedings, considering that Officer M.T. had not committed any offence and that Yalçın Ercan’s death had been a fortuitous event. The prosecutor pointed out, in particular, that Officer M.T. had been unable to foresee or prevent the firing of the shots. 35. The first and third applicants (Yalçın Ercan’s wife and mother), with the assistance of their legal representative in Bulgaria, lodged an appeal. They argued that Officer M.T. had acted with criminal negligence. Upon their appeal, on 3 November 2008 the decision of the prosecution was upheld by the Sliven Military Court. However, upon a further appeal by those applicants, on 23 December 2008 the decision was quashed by the Military Court of Appeal, which considered that it had not been sufficiently reasoned and that further evidence needed to be collected. 36. The prosecutor resumed the investigation of the case and in a new decision of 3 July 2009 discontinued the criminal proceedings. On the basis of the evidence described above he concluded that Officer M.T. had not himself pulled the trigger of his gun, and that the lethal shots had been fired when Yalçın Ercan had touched it while wrestling with the officer during his repeated attempts to take hold of the gun, or after the trigger had become entangled in the fishing nets. Either way, Yalçın Ercan’s death had been a fortuitous event, which Officer M.T. could not have foreseen or prevented. He had abided by the relevant safety rules, most notably by switching the gun’s safety catch on before boarding the Ömer Reis-2. It was also significant that Yalçın Ercan and his brothers had violently resisted arrest. 37. The first and third applicants appealed, contesting in particular the conclusion that Yalçın Ercan could have pulled the trigger himself. On 12 October 2009 the Sliven Military Court quashed the prosecutor’s decision, finding that it was not sufficiently reasoned, and remitted the case. 38. Upon an appeal by the prosecution against the Military Court’s decision, on 13 November 2009 the Military Court of Appeal finally upheld the discontinuance of the criminal proceedings. It found that the prosecutor’s decision was well reasoned and that there was no indication that Officer M.T. had committed an offence. It also dismissed the first and third applicants’ argument that Officer M.T. had been negligent because he had not been wearing a holster and, while struggling with Yalçın Ercan, had left his gun hanging in front of him. It pointed out that Officer M.T.’s health and life were in danger at the material time. Furthermore, he could not be held responsible for the fact that his gun had become unfastened from the ring on his jacket. The main responsibility for the incident was to be borne by Yalçın Ercan, who had failed to obey the coastguards’ lawful orders. 39. The bringing of charges against Officer M.T. on 19 June 2008 sparked a wave of protests by nationalists, who called the prosecutor in charge of the case “a traitor” and Officer M.T. “a hero”. Journalists in Burgas created an “initiative committee” in defence of the officer and adopted a declaration, stating that the bringing of charges against him “would have a demotivating effect” on the border police. On unspecified dates in July 2008 this declaration was sent to the Chief Public Prosecutor, the President of the Republic, the Speaker of Parliament, and other bodies. The “initiative committee” also started collecting signatures in support of Officer M.T. According to reports in the local media more than 200,000 people signed the petition. According to the same reports, the mayors of Burgas and Tsarevo and the president of the municipal council of Burgas also signed the document. 40. In July 2008 the municipal council of Burgas made Officer M.T., as well as his colleagues who had participated in the operation of 17 April 2008, honorary citizens of the city. 41. In January 2009, following the Military Court of Appeal’s decision of 23 December 2008 remitting the case for further investigation (see paragraph 35 above), members of Parliament representing the Burgas constituency sent a letter to the Inspectorate of the Supreme Judicial Council, urging it to intervene in the criminal proceedings. Also in January 2009 the local newspaper Chernomorski Far claimed that the President of the Republic had met Officer M.T.’s father and had promised to do whatever was in his power to ensure that his son would not be brought to trial. 42. The Tsarevo District Court, in a judgment of 2 October 2008, upheld by the Burgas Regional Court on 12 January 2009, convicted Zayim and Engin Ercan of disorderly conduct and poaching on 17 April 2008. Zayim Ercan was also convicted of causing a minor bodily injury to Officer N.P., whom he had hit with a wooden boathook. Both brothers were sentenced to one year’s imprisonment, suspended for three years. Zayim Ercan was ordered to pay Officer N.P. 1,000 Bulgarian levs (BGN) in compensation for non-pecuniary damage.
| 0 |
test
|
001-178921
|
ENG
|
FRA
|
CHAMBER
| 2,017 |
CASE OF BOUKROUROU AND OTHERS v. FRANCE
| 3 |
No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
|
5. The first applicant is a French national who was born in 1970 and lives in Mouroux. He is the brother of the victim, M.B. born in 1968. The second, third, fourth, fifth and sixth applicants, who were born in 1977, 1973, 1972, 1939 and 1951 respectively, are the victim’s sister, widow, brother, father and mother. They live in Mouroux, Massy, Valentigney and Thulay respectively. 6. On 12 November 2009, at about 4.30 p.m., M.B., who was 1 m 80 tall and weighed about 100 kilos, went into a pharmacy in Valentigney. He was known to the staff there, where he habitually went to collect the medicine prescribed for his psychiatric disorders. 7. M.B. asked to exchange some medicine dispensed without a prescription, saying he was not satisfied with it. A pharmacist’s assistant, Ms R., and the owner of the shop, Mr F., explained to him that the effects of the medicine had diminished because he had become addicted to it. M.B. started to become angry, throwing the medicine boxes on the floor, raised his voice and started speaking incoherently: “I’m fed up with your night visits, with your assistant and with you!” 8. M.B. told Mr F. that he intended to file a complaint against him. Mr F asked Ms R. to call the police. M.B. sat down on one of the chairs for customers at the pharmacy. 9. At 4.53 p.m. four police officers arrived on the scene after receiving a call from the incident room instructing them to intervene in an incident involving an individual with psychiatric disorders. 10. Deputy police sergeant L. and police constable M. asked M.B. several times to accompany them out of the pharmacy. When he vehemently refused, sergeant L. and constable D. seized him by the arm in order to remove him from the pharmacy. Constable M. seized M.B. by his right leg. M.B. struggled and called for help. 11. At the doorstep up to the pharmacy M.B. found himself on the ground. Constable M. attempted to handcuff him behind his back while he continued to struggle and appeal to the police for help. Constable M. punched M.B. twice in the solar plexus but still did not succeed in handcuffing him. 12. M.B. was then turned onto his right side and constable D. was able to handcuff him in the front with two pairs of interlinking handcuffs. 13. Deputy police sergeant P. went to get the police vehicle to move it closer to the pharmacy. Two police officers seized M.B. by the arm in order to put him in the van. Despite putting up resistance, M.B. was forced inside the police van. 14. M.B. continued struggling and shouting in the police van and pushed one police officer against the luggage holder above and another against a shelf before falling face downwards. Deputy police sergeant L. positioned himself above his shoulders in order to fasten another pair of handcuffs attaching M.B. to the fixed part of the back seat in the van. Constables D. and M. positioned themselves on top of him, on his legs and on his buttocks. 15. At 4.58 p.m., that is, exactly five minutes after they had arrived, the three police officers present in the vehicle contacted their headquarters requesting assistance from the fire brigade and the mobile emergency medical service (SAMU). 16. According to the incident room’s telephone log, at 5.07 p.m. the fire brigade asked the police to transfer M.B. to their vehicle. Deputy police sergeant L. refused to do so on grounds of M.B.’s extremely agitated state. 17. The firemen then drew up a record of M.B.’s condition. He had calmed down, but his heart rate could not be measured with the pulse oximeter because the sensors were not working. One of the firemen constantly monitored his breathing, which stopped at one point. A fireman noted the absence of blood circulation. 18. The team of firemen brought M.B. inside the pharmacy. One of them alerted the ambulance service by radio. The firemen inserted a semi-automatic defibrillator and started carrying out cardiac massage. 19. An emergency doctor from the mobile emergency and intensive care service (SMUR), called out by the firemen, administered specialist cardiopulmonary resuscitation. He recorded M.B.’s death at 6.02 p.m. 20. An investigation into the cause of M.B.’s death was commenced immediately. 21. Of the three pharmacists who gave a statement that day, on 12 November 2009, two were present when the police officers had asked M.B. to leave the premises. They confirmed that when M.B. had refused to comply, the police officers had approached him and seized him. They said that M.B. had begun shouting and struggling at that point and had continued shouting and struggling when he had got into the police van, handcuffed. None of the three witnesses had seen what had happened in the police van. 22. One of them stressed the fact that M.B. had been a customer at the pharmacy for a year and a half and had always been very pleasant during his monthly visits to collect his neuroleptics prescription. 23. On the same day Mr S., a volunteer firefighter, was also questioned. He stated that on his arrival M.B. had still been in a highly agitated state, lying face down in the van, with the police officers restraining him: one either sitting or kneeling on the victim’s buttocks, and the other holding his legs; his hands were outstretched and fastened by several handcuffs to the back seat of the van; the victim’s head was on the driver’s side, and his right cheek face down on the floor. He explained that he had requested medical reinforcements and that then, when they observed that his heart had stopped beating, the firemen had decided to take him back into the pharmacy to continue carrying out cardiac massage. 24. On 13 November 2009 one of the pharmacists was questioned a second time. He stated that M.B. had been a regular customer at the pharmacy. He said that the police officers had not hit M.B. 25. Constable M. was questioned the same day. He stated that deputy sergeant L. had introduced himself to M.B. and had asked him to come outside “to explain the problem, as in this type of intervention the aim is to separate the parties”. He explained that M.B. had refused to leave the pharmacy several times despite repeated requests by the police, who had finally dragged hm towards the door. He said that he had then seized M.B.’s right leg and that, just in front of the entrance to the pharmacy, M.B., who had lost his balance, had fallen down. He added that the police officers had then attempted to handcuff him and that when he had resisted attempts to put him in the police van constable D. had pulled his legs, which had unbalanced him and caused both of them and deputy police sergeant L. to fall over in the police van. He said that L. had managed “I don’t know how to pin him back down on the ground”. He also said that in order to finish handcuffing him deputy sergeant L. had squatted down on M.B.’s shoulders while constable D. remained at leg level; as M.B. had continued struggling, he himself had stood on his buttocks. He stated that they had remained “like that for a while, but I cannot tell you how long, it felt like a long time, with me on his buttocks, my colleague on his shoulders and the third officer on his feet, assisted by P., who had crossed his legs to stop him moving. It was then that the fire brigade arrived”. 26. Deputy sergeant L. was also questioned on 13 November 2009. He stated that he had received instructions from his headquarters to go to a pharmacy and had been informed that M.B. “suffered from psychiatric disorders”. He confirmed that M.B. had put up a violent struggle before letting himself slide to the ground in front of the entrance to the pharmacy. He explained that constable M. had administered two punches to the abdomen, using a technique known as “diversionary blows”. As regards the rest, he confirmed the above-mentioned conditions in which M.B. had been handcuffed in the police van. 27. An autopsy was carried out on 13 November 2009. The forensic doctor described and explained the traumatic injuries observed: the injury to the left eyebrow and the associated swelling did not suggest injuries following a blow but were related to an impact by that part of his face on a ridged surface. The other facial injuries suggested close contact on a rough surface. The injuries to the wrists were characteristic of handcuffing. Those to the lower part of the chest and in the abdominal cavity could have been incurred as a result of two violent blows to that area. The forensic doctor specifed that the injuries had caused neither internal bleeding nor fractures. He mainly noted marks on the lungs and 70% stenosis on a heart artery. Dr H.’s report, drawn up on 16 November 2009, contained the following conclusions: “Death in all likelihood occurred as a result of heart failure. An atheromatous attack observed on an artery of the heart exposed him to a severe risk of cardiac rhythm disorders and sudden death. The state of stress and agitation presented by the victim on his arrest may have contributed to heart failure. Restriction of chest expansion may have occurred when the victim was restrained, but it cannot be affirmed that mechanical asphyxiation was the cause of death. ... Recent traumatic injuries consistent with action by third parties were observed. In any event, the various injuries did not directly contribute to the death; nor is there any injury consistent with blows to the face.” 28. On 14 and 23 November 2009 Ms S., a shopkeeper, was questioned and stated that she had heard shouts from her shop opposite the pharmacy. She said that she had seen four police officers with a man lying face down with his arms behind his back being punched and kicked. Through a side window of the police van she stated that she had seen a female and a male police officer trampling on the spot while hanging on to the roof of the van, one administering three punches in a downwards movement and lifting his knee up very high before bringing it down in one sharp movement. 29. On 23 November 2009 the shopkeeper’s minor son was questioned and stated that he had seen two police officers trampling on M.B. in the road and that a female police officer had hit him several times with a truncheon in the stomach, back and face. 30. On 3 December 2009 a judicial investigation for manslaughter was opened in respect of a person or persons unknown and assigned to two investigating judges. 31. On an unknown date the applicants applied to join the proceedings as civil parties. 32. On 7 January 2010 Ms C., a neighbour next to the pharmacy, stated that she had seen M.B. struggling, face downwards, outside the pharmacy. She said that the police officers had “thrown him into the van” and that she had left after the doors were closed. She stated that the police officers had not hit M.B. 33. On 21 January 2010 chief brigadier M. D., an instructor in defence and arrest techniques and in the psychological and behavioural aspects of police intervention, was heard as a witness. He stated that in the event of a dispute between people, “the opposing parties should in so far as possible be separated”: the police officers, in attempting to induce the M.B. to leave the pharmacy, had sought to avoid a fight in the shop. He said that the blows administered by constable M. and described as “two punches to the suspect’s abdominal area with the aim of distracting and and securely handcuffing him [were] among the priority areas for attempting to weaken the resistance of the person concerned. They [the police officers] had not been over zealous and had completed the handcuffing in the front. The officers had also acted in an emergency situation. The technique used by constable M. appear[ed] the most appropriate in the context of the intervention”. He added that all the techniques taught were designed to weaken resistance to arrest. He specified that, with regard to the immobilisation of M.B. in the van, standing on a person’s buttocks was not among the techniques taught and that positioning oneself across M.B.’s shoulders, as sergeant L. had done, was one of the procedures taught. That technique enabled the officer to prevent the suspect from moving while avoiding postural asphyxiation. He concluded that the intervening officers, having regard to the context of the intervention, had acted with pragmatism and discernment. 34. Reports were produced by several experts appointed by one of the investigating judges. On 23 June 2010 Dr L., professor of forensic medicine, and Dr R., lecturer in forensic medicine, provided a forensic medical report after examining M.B.’s body on 18 December 2009. They stated that their examinations had revealed “a series of cutaneous lesions that could not have contributed to the death”. They did not indicate evidence of any “factor suggesting death by chest compression”. There was thus no evidence of “petechial subconjunctival injuries or of facial petechial injuries”. They stated as follows: “our examination of the sealed evidence has not revealed any elements indicating the cause of death of [M.B.]. The sealed evidence shows that he was receiving psychiatric treatment for psychosis with several episodes of hallucination requiring the regular ingestion of antipsychotic medicines. ... At the levels measured, the ingestion of psychoactive drugs revealed by the toxicological investigations does not appear capable of explaining the victim’s death by a process of direct toxicity. ... In conclusion, the death of [M.B.] ... is in all likelihood the result of myocardial failure. The death is due to natural causes.” 35. On 10 December 2010 Dr T. and Dr F. produced their anatomopathological expert report after examining a copy of the autopsy report of 16 November 2009, a copy of the interviews with the members of the police patrol team who had arrested M.B., a copy of the record of examination of two witnesses, various sealed samples collected both by Dr H. and by Professor L. and Dr R.: “[M.B] died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress. ... In conclusion, the intense and prolonged emotional stress, and the prolonged and severe agitation, which started in the pharmacy and contined during the arrest explain the series of physiopathological phenomena which caused the death: (1) intense stimulation of the sympathetic nervous system (adrenergic neuro-hormonal system), (2) coronary-ischemic spasm, (3) fatal cardiac rhythm disorders.” 36. On 14 and 16 December 2010 and 19 January 2011 the four police officers appeared for the first time as assisted witnesses. 37. On 8 April 2011 a reconstruction was organised, by the two investigating judges in charge of the case, in the presence of the civil parties’ lawyers and the assisted witnesses. During the visit to the scene the forensic doctor stated that he had not noted any traumatic injury consistent with the violence described by the witness Ms S, the only injuries suggesting direct action by a third party being those corresponding to the punches administered to the stomach. 38. On 5 July 2011 Dr C., university professor, neurologist and psychiatrist, and head of a forensic medical department, examined M.B.’s medical file at his psychiatrist’s surgery, his medical file at the casualty department of Montbéliard Hospital, and the medical file kept by M.B.’s general practioner. He stated that M.B., who had been receiving psychiatric care for many years, had been admitted to a hospital psychiatric unit several times and presented a psychotic disorder characterised by delusional notions of a betwitching, persecutory and interpretative type During his most recent hospital consultation he had been diagnosed with paranoid psychosis, which is related to schizophrenia. Dr C. concluded his report as follows: “[M.B.] presented a serious psychiatric disorder, namely, delusional psychosis, which explains the initial altercation with the pharmacist and his subsequent state of extreme agitation when the police officers attempted to induce him to leave the pharmacy. It is also possible that the intervention by the police was interpreted in a delusional manner. When the SMUR [mobile emergency and intensive care service] intervened the criterion of seriousness was ... the fact that [M.B.] had been suffering from heart failure for approximately twenty minutes. The superficial injuries observed, during the autopsy, to the right-hand side of the face and the front of the knees [appear to him] compatible with immobilisation on the floor of the van and the petechial injuries to the upper abdomen and the left abdominal region are compatible with punches administered as described in the autopsy report.” 39. On 25 November 2011 the Ombudsman, an institution independent of the State, having the task, inter alia, of ensuring compliance by the police with their code of professional ethics, to whom a member of parliament had submitted the case, produced a report. He found that whilst the police officers had been very quick to seek the assistance of the fire brigade and the emergency medical service, it was regrettable that the situation had been inaccurately described by the incident room to the firemen prior to their intervention (the latter had been informed of M.B.’s “withdrawal symptoms”). He considered that there had been no imminent danger to people or property in the pharmacy and thus no urgent need to remove M.B. as soon as possible. He stated that the immobilisation and compression procedures carried out in the van had been dangerous and disproportionate. He described as “amouting to a serious infringement of human dignity and to inhuman and degrading treatment within the meaning of Article 3” the techniques used by constables D. and M. to pin M.B. to the floor of the police van. The Ombudsman also noted conflicting statements by the police officers regarding whethere there had been physical violence other than the two diversionary blows and pointed out that no witnesses had been present throughout the entire incident. The Ombudsman concluded that the precipitation with which the police had acted had led them to make an erroneous assessment of M.B.’s situation and to react in a stereotypical manner rather than adjust their conduct during the intervention, despite the fact that they knew that M.B. was receiving treatment for psychiatric disorders and that they had been able to observe abnormal behaviour on his part. He recommended reinforcing the initial and continuous training of police officers with regard to dealing with persons suffering from a mental disorder. Lastly, he recommended that disciplinary proceedings be brought against the four police officers who had arrested M.B. for “disproportionate use of force or failing to cease using such force”. 40. On 18 January 2012 Dr T. and Dr F. supplemented their expert report of 10 December 2010. They confirmed the conclusion of their earlier report and ruled out mechanical asphyxia: “M.B. died suddenly of cardiac rhythm disorders, with no occurrence of mechanical asphyxia.” They reiterated the part played by extreme stress in the death, stating that “the adrenergic stimulation was related to the extreme and prolonged emotional and physical stress. The stress lasted approximately one hour and thirty minutes, starting in the pharmacy and continuing throughout the arrest”. 41. On 26 March 2012 the four police officers who had arrested M.B. were charged with manslaughter as a result of the manifestly wilful violation of a legal or statutory duty of caution and security. 42. On 5 November 2012 the the public prosecutor at the Montbéliard tribunal de grande instance filed submissions recommending that the charges be dropped. 43. On 21 December 2012 the investigating judges ruled that there was no case to answer. They found that whilst it was true that M.B. had been in a relatively calm state, the pharmacist had nonetheless considered his behaviour sufficiently disturbing to inform the police of the presence in his establishment of a person in an agitated state and suffering from psychiatric disorders. They observed that the police officers had not immediately used force and that, on being informed of M.B.’s pyschiatric pathology, they had called the emergency medical service. The judges found that the evidence given by Ms S. had been invalidated by the observations made during the reconstruction, the statements made by the pharmacists and the conclusions of the forensic doctor. The investigating judges observed as follows: “ ... pinning [M.B.] to the ground was not identified by the medical experts as the direct cause of the death. Whilst the intervention by the police inevitably generated stress, the victim had already been stressed well before their intervention. As the police did not know about [M.B.’s] heart disease, of which he himself was unaware, they could not foresee that the combination of these two factors [stress and heart disease] could create a risk for the victim.” 44. The judges considered that the force used by the police officers had been necessary and proportionate “even if being pinned down in the van, by L. and P. and M.’s position – standing on [M.B.’s] legs – may appear objectionable in absolute terms”. 45. The applicants appealed against that ruling. On 16 October 2013 the Investigation Division of the Besançon Court of Appeal upheld the decision finding no case to answer on the following grounds: “[M.B.’s death was due] according to the forensic doctor who carried out the initial autopsy ... to heart failure in circumstances of stress and effort acting on a predisposed heart condition; the second forensic report supported the finding of cutaneous injuries that could not have been a contributory cause of death and ruled out death due to chest compression; the experts indicated that the death of [M.B.] was, in all likelihood, the result of myocardial failure and natural causes; the anatomopathological report ... [led] the experts to conclude that [M.B.] had died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress, and formally ruled out mechanical asphyxia; lastly, the forensic and psychiatric expert ... concluded that [M.B.] presented a serious psychiatric disorder ... which explained the initial altercation with the pharmacist and the ensuing state of extreme agitation when the police officers attempted to induce him to leave the pharmacy, as their intervention could have been interpreted in a delusional manner”. 46. With regard to the conditions of arrest, the Investigation Division found that the agitated state and the “recalcitrant, not to say violent, behaviour of [M.B.] had obliged the police officers to use force and intervention techniques, which they had been taught, to restrain him”, including the two punches administered by constable M. “who explained that he had used a technique taught to police officers to assist in handcuffing suspects by creating a surprise effect, that explanation being confirmed by his colleagues and instructor”. The Investigation Division found that M.B. had been pinned to the floor of the van in conditions that had been “admittedly unusual, or even objectionable”, but that these had preserved the respiratory capacity and ventilation of a person who “was continuing to oppose strong resistance to the police officers”. It concluded that “no inadvertence, lack of care, inattention, negligence or breach of a statutory or legal duty of protection or care, or gross negligence [could] be attributed [to the police officers] in the death of [M.B.]”. 47. The applicants appealed on points of law. On 18 November 2014 the Court of Cassation dismissed their appeal on the following grounds: “ ... the Court of Cassation is satisfied on the basis of the grounds of the judgment being appealed that in upholding the decision finding no case to answer the Investigation Division, after analysing all the facts referred to it and addressing the main grounds in the statement of appeal, gave sufficient and coherent reasons for their finding that the investigation had been thorough and that there was insufficient evidence on which to convict the persons charged with of manslaughter or any other offence ...” ...
| 1 |
test
|
001-161224
|
ENG
|
POL
|
ADMISSIBILITY
| 2,016 |
KOMISJA ZAKŁADOWA NSZZ SOLIDARNOŚĆ at FRITO LAY POLAND Ltd v. POLAND
| 4 |
Inadmissible
|
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
|
1. The applicant, Komisja Zakładowa NSZZ “Solidarność” at Frito Lay Poland Ltd in Grodzisk Mazowiecki is an enterprise-level unit of the “Solidarność” Trade Union. 2. It was represented before the Court by Mr A. Bodnar, a lawyer with the Helsinki Foundation for Human Rights, a non-governmental organisation based in Warsaw. 4. On 18 October 2004 the National Labour Inspectorate found evidence of various violations of the workers’ rights related to the working time, unpaid overtime and breaches of the health and safety regulations at Frito Lay Poland Ltd in Grodzisk Mazowiecki (“the company”). 5. At the end of 2004 eight women employed in Frito Lay Poland Ltd were dismissed. Shortly after their dismissal, they complained to the President of the Board of the applicant trade union in the company, Mr S.Z. Three of the women claimed that they had been sexually harassed by their superior. The remaining five alleged that that they had been dismissed for their knowledge of the sexual harassment. Mr S.Z. requested the management of the company that the dismissed employees be reinstated but to no avail. 6. On 12 January 2005 the Mazowiecki Region Branch of the “Solidarność” Trade Union filed a criminal complaint with the prosecutor’s office. It alleged that W.O., a manager of the company had sexually harassed the employees. It also alleged that the rights of the employees had been violated. 7. On 13 April 2005 the District Prosecutor filed a bill of indictment with the Grodzisk Mazowiecki District Court. He accused W.O. of the sexual harassment of the employees. Another manager, G.M. was accused of wilful breach of the employees’ rights. No information has been provided as to the outcome of those proceedings. 8. Every three months the applicant trade union had to inform the management of the company about the number of its members. On 5 October 2005 it declared to the management of the company that it had 171 members as of 30 September 2005. Having regard to the number of unionised employees and pursuant to the provisions of the Trade Unions Act, Mr S.Z., the president of the board of the applicant trade union, was relieved from his normal duties and carried out his trade union activity. 9. On 9 December 2005 daily newspaper “Super Express” published an article about Mr S.Z. entitled: “How to receive a salary and do nothing”. The article stated that the number of unionised employees in the company had been inflated and that Mr S.Z. had therefore no right to be seconded to his trade union activity. 10. On the same day the management of the company requested the members of the board of the applicant trade union to indicate the number of its members as of 30 September 2005. This request was refused. 11. On 12 December 2005 the employees were requested by the company director to proceed to a designated room in order to fill out a questionnaire about membership in the trade union. The employees had to present their identity document and to sign a list in order to receive a questionnaire. Then, they had to indicate in an anonymous questionnaire whether, or not they were members of the trade union as of 30 September 2005. The room had no arrangements ensuring the confidentiality of the process. The whole process was supervised by a notary and her assistant who drew a relevant record. 12. 378 employees of the total number of 418 took part in the survey. Six employees confirmed to be members of the trade union at the relevant time; while the trade union had declared 171 members. 13. Three employees declared subsequently to the trade union that they had given a negative reply for fear of reprisal. 14. On 14 December 2005 the Frito Lay Poland Ltd dismissed Mr S.Z. The reason for it was that Mr S.Z. had misled the company about the number of unionised employees which, in turn, allowed him to be relieved from his normal duties. Mr S.Z. instituted court proceedings for reinstatement. 15. On 28 December 2005 the Helsinki Foundation for Human Rights, a non-governmental organisation filed a criminal complaint against members of the management of the company. It submitted that the management of the company had acted illegally by requiring the employees to disclose their membership in the trade union. This action had amounted to the hindering of the trade union activity prescribed in section 35 of the Trade Unions Act and discriminated against the unionised employees. The Foundation submitted that if the employer had doubts about the number of unionised employees it should have initiated a relevant procedure before the civil court. It also asserted that the actions of the management had had intimidating effect on the current and future members of the trade union. 16. It appears that Mr S.Z. also filed a criminal complaint. 17. On 13 January 2006 the company distributed a form among the employees which was to be returned within five days. The form stated that “If therefore for any reason the board of the “Solidarność” trade union at the company still considers me its member, I hereby state that it is my will to resign from my trade union membership as of today”. 18. The investigation was initially conducted by the Grodzisk Mazowiecki District Prosecutor’s Office but in January 2006 it was transferred to the Warsaw-Ochota District Prosecutor’s Office. 19. The prosecutor heard evidence from Mr S.Z. He stated that the company had been involved in a long conflict with the trade union. In October 2005 Mr S.Z. had informed the higher instances of the trade union about the alleged sexual abuse of a number of the employees. In his view, in reaction to that the company had decided to take measure aimed at undermining his credibility. 20. The prosecutor also heard evidence from four other members of the board of the applicant trade union. They stated that the trade union had been established in December 1998. In 2000, having regard to the increased number of unionised staff, the president of the board of the trade union was seconded to carry out his trade union activity. According to them, the survey of 12 December 2005 did not ensure confidentiality for the employees. Three members of the board of the trade union did not disclose their membership in the trade union for fear of dismissal. One member of the board of the trade union stated that the members of the board had requested the employees not to disclose the fact of their membership. 21. The prosecutor further undertook to verify the number of unionised employees at Frito Lay Poland Ltd. She requested the regional branch of the “Solidarność” Trade Union to provide information about the registration of the applicant trade union. A request was also addressed to the treasurer of the applicant trade union to inform the prosecutor of the number of trade union members based on the dues paid. 22. On 21 July 2006 the Warsaw-Ochota District Prosecutor discontinued the investigation. 23. The prosecutor assessed the evidence and found that no criminal offence of hindering trade union activity, prescribed in section 35 § 1 (2) of the Trade Unions Act, had been committed. She noted that under this provision the hindering of the trade union activity should have been of a significant character. However, the carrying out by the employer of an anonymous survey among the employees could not have been qualified as such. The evidence obtained in the case did not indicate that the action of the employer had significantly affected the activity of the trade union. The survey was carried out with a view to verifying the number of unionised employees. Such an action of the employer was not prohibited, while the trade union had an obligation to inform the employer every three months of the number of unionised members. However, if the employer had doubts about the number of unionised employees and then organised a voluntary and anonymous survey in the presence of a notary, it could not be said that the action of the employer had a significant influence on the trade union activity. The prosecutor lastly noted that the survey did not disclose the identity of unionised employees. 24. The applicant trade union filed an appeal. It argued that the employer had no right to verify the number of trade union members and should have instituted proceedings before the civil court instead. The employer’s actions led to the dismissal of Mr S.Z. and reduction of the membership of the trade union. The trade union further alleged that the prosecutor had failed to hear a number of important witnesses, in particular the company director, the notary and his assistant and, at least, some employees. 25. On 19 June 2007 the Warsaw District Court upheld the prosecutor’s decision. It noted that the prosecutor had correctly assessed the evidence in the case. The court agreed, in particular, that the hindering of trade union activity should have been of a significant character and that the carrying out of the anonymous survey could not have been considered as the hindering of trade union activity. 26. On 28 February 2006 the “Solidarność” Trade Union brought a complaint before the Committee on Freedom of Association of the International Labour Organisation concerning the situation in the Frito Lay Poland Ltd, alleging interference into trade union internal affairs and antiunion dismissal. The IUF (the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Association) supported this complaint. The complaint also concerned a situation in another private company which is not relevant to the present case. 27. The complainant indicated that Mr S.Z., the leader of the “Solidarność” trade union at the Frito Lay Poland Ltd had been actively involved in a conflict concerning allegations of sexual harassment. The case of female employees who had been dismissed or forced to resign gathered a lot of attention from the media and from the international trade unions. The claimant described the survey organised by the company on 12 December 2005. It stated that the employees had been required to fill out a questionnaire concerning their trade union membership in circumstances that allowed easy identification of employees. Forms with a question “Were you a member of the enterprise-level trade union organisation on 30 September 2005?” were filled out in the presence of two persons and no arrangement had been made to ensure confidentiality. Two lawyers had been hired by the employer to supervise the procedure and this fact created an additional pressure. The complainant considered that due to lack of confidentiality, the majority of the trade union members had responded in the negative. It also described the circumstances leading to the dismissal of Mr S.Z. 28. The complainant further submitted that on 13 January 2006, a readyto-fill form had been distributed among the employees. The form contained the following statements “I declare that I do not consider myself a member of the trade union” and “If therefore for any reason the enterprise trade union of the “Solidarność” trade union still considers me its member, I hereby state that it is my will to resign from my trade union membership as of today”. The form was to be signed and returned to the management within five days. 29. The complainant alleged that the acts of the employer to verify trade union membership had been clearly aimed at intimidating workers and contrary to the legislation in force. It noted that the Trade Unions Act provided for a possibility to apply to a court to verify the number of trade union members at a particular enterprise in the course of non-contentious proceedings. It alleged that as a consequence of the employer’s action, the number of unionised employees had dropped from about 170 to 60 in the space of two weeks. In conclusion, the complainant alleged that the actions undertaken by the management of Frito Lay Poland Ltd remained unpunished by the Polish Government or any public institution. The claimant asserted that the above cases of anti-union climate in the enterprise, hostile attitude towards attempts of workers to organise, anti-union discrimination and problems related to the reinstatement of dismissed trade unionists constituted a serious threat to the rights guaranteed by the Convention no. 98. 30. The ILO Committee on Freedom of Association examined the complaint as case no. 2474. In its first consideration of the case (334th Report, March 2007), the Committee held, in so far as relevant: “1147. The Committee notes that this case concerns alleged violations of freedom of association by the management of two private companies (... and Frito Lay Poland Ltd), namely: acts of interference in trade union affairs and anti-union dismissals. ... 1149. As regards the situation at Frito Lay Poland Ltd, the Committee notes that the complainant alleges that Mr S[...] Z[...], the leader of the enterprise trade union was accused by the employer of intentionally misinforming the company’s management as regards the number of trade union members and was dismissed without the approval of the union committee. The complainant further alleges that the gathering of individual data on trade union membership, on the results of which the employer had later based the decision to dismiss Mr Z[...], was conducted in a manner violating confidentiality (...) and had a deterring effect on trade union members. Furthermore, on 13 January 2006, a ready-to-fill form letter was distributed among the employees of the enterprise attesting to their non-membership in the union, to be signed and returned to the enterprise management. According to the complainant, such intimidating acts lead to the dropping of trade union membership from 170 to 60 members in the space of two weeks. 1150. The Committee notes that here too, the Government does not challenge the substance of the allegations but indicates that only the Labour Court can make appropriate decisions with regard to the legality of the termination of the employment contract of Mr Z[...]. The Committee also notes the comments of the Lewiatan Polish Confederation of Private Employers, which include the position of the management of Frito Lay Poland Ltd that they did not violate national legislation, that the procedure of verification of trade union membership was voluntary and anonymous and was a result of reasonable doubts over Mr Z[...]’s claims with regard to the number of trade union members. It further notes the concerns of the Polish Confederation of Private Employers that the current legislation provides no means for verifying trade union membership. 1151. The Committee notes the Government’s further indication that the National Labour Inspectorate assured the Minister of Labour that it would continue monitoring the application by Frito Lay Poland Ltd of the relevant labour regulations. In view of the opening by the District Prosecutor in Grodzisk Mazowiecki of judicial proceedings in the case of the respect of trade union rights at Frito Lay Poland Ltd, the Minister of Labour also called upon the Minister of Justice to give it priority. ... ... 1155. While taking due note of the Government’s statement that ... the case of Mr Z[...] and the alleged violations of trade union rights at Frito Lay Poland Ltd are also under investigation, the Committee must also observe that these cases have been pending since ... December 2005 ... . The Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. ... 1156. The Committee observes that the Government has reacted to the concerns raised in respect of the enterprises ... and Frito Lay Poland Ltd by referring the issue to ... the Voivodship Social Dialogue Commission, as regards the latter.” 31. The Committee on Freedom of Association raised the issue of verification of trade union representativeness: “1157. ..., the Committee observes the concerns raised by the Confederation of Private Employers in respect of the lack of legal provisions for verifying trade union representativeness and requests the Government, in consultation with the social partners, to provide for an impartial and independent method for verifying trade union representativeness in order to avoid the problems that occurred in the case of Frito Lay Poland Ltd.” 32. The Committee on Freedom of Association submitted, in so far as relevant, the following recommendations to the ILO Governing Body: “1158. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations: (b) The Committee urges the Government to reiterate and intensify its efforts, under the auspices of the Tripartite Commission, to ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards the effective recognition of unions and the provision of adequate protection against acts of antiunion discrimination and interference. The Committee firmly expects that the situation of the respect of trade union rights in Poland will indeed improve with the approval of a national social agreement between the Government and the social partners and requests the Government to keep it informed of the developments in this regard. (c) The Committee requests the Government, in consultation with the social partners, to provide for an impartial and independent method for verifying trade union representativeness order to avoid the problems that occurred in the case of Frito Lay Poland Ltd.”. The ILO Governing Body approved these recommendations in March 2007. 33. Since its initial assessment of the case, the Committee on Freedom of Association has reviewed the situation periodically. In its Report No. 349 of March 2008, it noted, in so far as relevant, that: “251. With regard to the alleged violation of trade union rights at Frito Lay Poland Ltd, the Committee notes that: the District Prosecutor concluded to the absence of any violation and closed the investigation on 21 July 2006; this decision was challenged by the NSZZ “Solidarnosc” and that on 19 June 2007, the District Court for the Capital City of Warsaw dismissed the complaint and upheld the decision of the District Prosecutor. The Committee requests the Government to provide copies of both decisions. 252. The Committee ... requests the Government to continue providing information on concrete measures taken to ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards the effective recognition of unions and the provision of adequate protection against acts of anti-union discrimination and interference. The Committee further requests the Government to provide information on any progress reached with regard to the development of an impartial and independent method for verifying trade union representativeness, in consultation with the social partners.” 34. In its subsequent Report No. 353 of March 2009, the Committee on Freedom of Association took note of the decisions of the District Prosecutor’s and the Warsaw District Court, transmitted by the Government, which had both concluded that there was an absence of any violation of trade union rights at Frito Lay Ltd. The Committee regretted that no information had been provided with regard to its other outstanding recommendations. It observed that similar matters were being raised by the Committee of Experts on the Application of Conventions and Recommendations and referred the follow-up of those legislative aspects to it. 35. Pursuant to section 251 § 2 of the Trade Unions Act of 23 May 1991 an enterprise-level trade union should inform the employer about an overall number of its members every three months. Section 31 regulates the right of members of the board of an enterprise-level trade union to be relieved from their normal duties in order to carry out trade union activity. The number of members of a board who could benefit from this right depends on the number of members of a trade union in an enterprise. 36. The Trade Unions Act provides in section 35 § 1(2) as follows: “Whoever in connection with the office held or the function exercised hinders the trade union activity carried out in accordance with the provisions of the law shall be liable to a fine or a restriction of liberty.”
| 0 |
test
|
001-158143
|
ENG
|
UKR
|
CHAMBER
| 2,015 |
CASE OF USTIMENKO v. UKRAINE
| 4 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Josep Casadevall;Vincent A. De Gaetano
|
5. The applicant was born in 1948 and lives in Dnipropetrovsk. 6. On 18 October 2010 the applicant lodged with the Dnipropetrovsk Amur‑Nyzhnyodniprovskyy District Court (“the District Court”) an administrative claim against the Department of the Pension Fund for the Dnipropetrovsk Amur‑Nyzhnyodniprovskyy District (“the defendant”) seeking an increase in his pension based on the rise in the average wages in the country since his retirement. 7. On 1 December 2010 the District Court, having considered the applicant’s claim by way of an abridged administrative procedure, allowed the claim. In the judgment it was pointed out that any appeal must be lodged by the appellant within a period of ten days following their receipt of a copy thereof. 8. The defendant received a copy of the judgment on 27 December 2010. 9. The defendant lodged its first appeal with the District Court on 13 January 2011 and did not request an extension of the time-limit for appeal. 10. On 11 April 2011 Judge N. of the Dnipropetrovsk Administrative Court of Appeal (“the Court of Appeal”) dismissed the defendant’s appeal on the grounds that it had been lodged after the time-limit for appeal had expired and the defendant had failed both to explain the reasons for the late lodging of the appeal and to submit a request for an extension. The ruling stated that it could be appealed against before the Higher Administrative Court. The defendant did not appeal. 11. On 1 June 2011 the District Court, at the applicant’s request, issued a writ of enforcement confirming that the judgment had become final on 11 April 2011. 12. With effect from 1 August 2011 the defendant complied with the judgment and increased the applicant’s pension. 13. On 17 June 2011 the defendant lodged a second appeal with the District Court. By letters of 21 June and 5 July 2011 the District Court forwarded the case file, including the appeal and its copy for the applicant, to the Court of Appeal. The case file gives no indication of any steps to follow up on the matter. 14. On 15 August 2011 the defendant lodged a third appeal, requesting that the Court of Appeal extend the time-limit for its submission. As grounds for its request the defendant stated that it “had begun the process of appealing against” the District Court’s judgment on 31 December 2010. 15. On 26 October 2011 Judge N. of the Court of Appeal scheduled a hearing for 26 January 2012 to examine the question of extending the time-limit for appeal. 16. According to a summons dated 26 October 2011 addressed to both the applicant and the defendant, they were summoned to attend a hearing of the Court of Appeal on 26 January 2012 at which the court was to examine the applicant’s request for an extension of the time-limit for appeal. The summons included the warning that failure to appear would not prevent the Court of Appeal from examining the matter. 17. It is apparent from the domestic case file that no other document was added to it between 26 October 2011 and 26 January 2012. 18. On 26 January 2012 a panel of the Court of Appeal, presided over by Judge N., extended the time-limit for appeal, stating that the defendant had missed the deadline for “valid reasons”. The Court of Appeal recounted the sequence of events in the case from 1 December 2010 to 15 August 2011, found it established that the first appeal had been lodged outside the time-limit, namely on 13 January 2011, and observed that the defendant had requested the extension because it had received a copy of the judgment only after the time-limit for appeal had already expired. 19. On 27 January 2012 Judge N. of the Court of Appeal ruled that appeal proceedings be opened, that copies of the ruling be sent to the parties, and that the applicant be sent a copy of the appeal and be invited to provide his reply. 20. According to a summons dated 30 January 2012 and addressed to both the applicant and the defendant, they were summoned to attend a hearing of the Court of Appeal on 13 June 2012 at which the court was to examine the appeal. This summons also contained the warning that failure to appear would not prevent the Court of Appeal from examining the matter. 21. On 13 June 2012 the Court of Appeal quashed the judgment of 1 December 2010 and rejected the applicant’s claim, holding that the first-instance court had erred in its interpretation of the relevant legislation governing pensions. 22. On 27 November 2012 the defendant sent a letter to the applicant informing him that his pension had been reduced in accordance with the decision of the Dnipropetrovsk Court of Appeal of 13 June 2012. 23. On 12 December 2012 the applicant lodged a complaint with the prosecutor’s office for the Dnipropetrovsk Amur‑Nyzhnyodniprovskyy District alleging that Judge N. had intentionally failed to inform him about the appeal proceedings. 24. On 29 December 2012 the prosecutor’s office made an entry in the Unified Register of Pre-Trial Investigations to investigate the suspicion that offences of delivering of an intentionally unjust court decision and of failure to enforce a court decision may have been committed. 25. On 17 May 2013 the prosecutor’s office decided to discontinue the investigation concerning the applicant’s complaint. The prosecutor’s office found, in particular, that the defendant had dispatched the original appeal against the judgment of 1 December 2010 on 31 December 2010 that is to say within the time-limit. As to the applicant’s allegations that he had not been informed about the reopened appeal proceedings, the prosecutor’s office noted that the case file contained copies of court summonses dated 26 October 2012 and 30 January 2012. 26. On 21 May 2013 the District Court and on 27 May 2013 the Dnipropetrovsk Regional Court of Appeal upheld the prosecutor’s decision.
| 1 |
test
|
001-177938
|
ENG
|
TUR
|
CHAMBER
| 2,017 |
CASE OF TİBET MENTEŞ AND OTHERS v. TURKEY
| 3 |
Remainder inadmissible (Art. 35) Admissibility criteria;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
|
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
|
7. The applicants were born in 1967, 1965, 1968, 1960 and 1958 respectively and live in İzmir. 8. The facts of the case may be summarised as follows. 9. The applicants have been employed in the duty-free shops at İzmir Adnan Menderes Airport since 1993. They are members of the Tekgıda Work Union, which had signed a collective labour agreement with the General Directorate of Monopolies on Spirits and Tobacco, the applicants’ employer and formerly a State-run enterprise. 10. During their employment the applicants operated in “work and rest cycles”. Accordingly, in the four months of the summer period they worked continuously for twenty-four hours and rested the next twenty-four hours. For the remaining eight months of the year, the winter period, they worked for twenty-four hours and rested for the next forty-eight hours. Their work schedule did not take account of weekends or public holidays as the dutyfree shops remained open twenty-four hours a day, seven days a week. As regards rest breaks and periods, section 22 of their collective labour agreement provided that such periods would be counted as working time and that they could not be subject to wage deductions. 11. On 10 October 2003 the applicants, with the assistance of their lawyer, instituted individual and separate proceedings against their employer before the İzmir Labour Court. They claimed compensation for the overtime hours they had worked beyond the legal working time for the previous five years of their employment. They referred to the Labour Code in force at the material time and to their collective agreement. Both documents defined overtime as work in excess of the regular forty-five-hour working week and provided for remuneration for such work at one and a half times the regular hourly rate. 12. On 1 November 2003 the applicants instituted new proceedings against their employer before the İzmir Labour Court and requested further remuneration for work done on weekends and public holidays and compensation for annual leave that they had not taken. 13. Having regard to the common background of the applicants’ complaints in both sets of proceedings, the İzmir Labour Court decided to join each applicant’s proceedings and to seek an expert report concerning the calculation of their claims for overtime, weekend and public holiday pay and remuneration for unused annual leave. 14. On 14 July 2004 the expert submitted a report in which he noted, inter alia, that clause 25 (c) of the collective agreement concluded between the parties provided for an entitlement to overtime pay, calculated on the basis of one and half times the hourly rate. He further referred to an official audit report by the Ministry of Labour, dated 10 September 2003, which noted that during the preceding summer period, between the months of June and September, workers at the company in question had worked overtime of 139.5 hours in months which had thirty-one calendar days and 135 hours in the remaining months. In the previous winter period, between October and May, they had worked 22.5 hours and fifteen hours of overtime respectively. The hours worked in excess of the legal working time should have been remunerated accordingly. According to the expert report, the applicants’ employer had previously been cautioned, on 25 November 1996, by the Ministry of Labour concerning its practices on working hours. 15. On the basis of his examination of the company’s timekeeping records, the expert calculated the number of hours worked as overtime in respect of each applicant, deducting three hours of rest per each day worked. 16. The expert determined that the employer did not owe anything to the applicants for weekend and public holiday work as the remuneration for those days had been in accordance with the applicable regulations. The expert also noted that the applicants could not claim any compensation for unused annual leave as they were still working at the company and such leave was only payable at the end of a contract. 17. The applicants raised a number of objections to the expert report. They stated that the timekeeping records used for the calculation did not reflect the actual hours worked as they were unofficial copies kept by the employer, which were not signed by employees. In that regard, the applicants submitted that they had worked for more hours than established by the expert. They requested that the court take other evidence into account, including the defendant employer’s shift orders, which detailed who would work when and for how long, as well as reports from the Regional Labour Inspectorate. They also submitted that the deduction of three hours of rest per day was not based on fact but was an assumption by the expert. The applicants submitted that in any event the expert’s hypothetical conclusion on rest periods could not be relied on because the collective agreement had expressly provided for the inclusion of such periods as a part of working time. The applicants raised no objections to the expert’s conclusion on the dismissal of their claims for pay for work at the weekend and on public holidays and for unused annual leave. 18. In submissions of 22 July 2004, the defendant employer raised objections to the expert report and also argued that the timekeeping documents could not be relied on as they were unofficial copies. It also maintained that it had been unable to pay overtime in full owing to a lack of funds from the State. It submitted that the applicants had in any event been aware of the working arrangements and had never requested a transfer to another unit of the General Directorate of Monopolies. 19. The İzmir Labour Court asked the expert to supplement his report with findings concerning the parties’ objections. 20. On 4 July 2005, the expert submitted a supplement to his report, in which he corrected his findings concerning the rest periods in the light of the applicants’ objection and calculated the hours they had worked as twenty-four in the course of a twenty-four-hour shift. He maintained his findings regarding the timesheets, submitting that his in situ examination of the workplace and comparisons between the official record and the employer’s copies had not revealed any inconsistencies. 21. On 12 September 2005 the İzmir Labour Court found in favour of the applicants in part and awarded them the amounts given in the expert’s report in respect of the unpaid overtime. It rejected their claims for pay for weekend and public holiday work and for unused annual leave. 22. Both parties appealed to the Court of Cassation. 23. On 17 April 2006 the Court of Cassation quashed the decision and remitted the case. It found that the Labour Court had not taken into account any time that could have been used for rest periods and that therefore the calculation of overtime could not be deemed accurate. It also stated that the overtime calculation should be based on weekly working hours rather than the monthly working time used in the expert report. 24. In the resumed proceedings, the İzmir Labour Court requested that the expert amend the report in light of the Court of Cassation’s decision. 25. On 11 September 2007 the expert revised the findings as ordered and concluded that the applicants were likely to have had a minimum of three hours for rest during a twenty-four-hour shift. The expert therefore recalculated their entitlement to overtime on the basis of twenty-one hours of actual work and compared it with the legal working week of fortyfive hours. 26. On 26 May 2008 the İzmir Labour Court awarded the applicants compensation for overtime as determined in the revised expert report. 27. The defendant employer appealed, arguing that the presumption established in the case-law of the Court of Cassation that a person could not work more than fourteen hours in the course of a twenty-four-hour shift should be applied to the facts of the dispute. The Court of Cassation then quashed the first-instance judgment on 28 October 2008 and remitted the case on the following grounds: “It can be seen from the case file that during the summer months [the applicants] worked for 24 hours and subsequently rested for 24 hours; and in the winter months they worked for 24 hours and subsequently rested for 48 hours. However, as determined by the well-established case-law of the Grand Chamber of the Court of Cassation’s Civil Division, in workplaces where there are 24-hour shifts, after the deduction of time spent on certain activities such as resting, eating and fulfilling other needs, a person can only work for 14 hours a day ... This approach must also be followed in the present case.” 28. In the resumed proceedings, the İzmir Labour Court decided to follow the decision of the Court of Cassation and another expert report was drawn up for that purpose. The report, dated 21 July 2009, calculated the applicants’ daily working time as fourteen hours, in line with the Court of Cassation’s presumption of fact. The calculation in the new report led to no overtime being found for the weeks in which the applicants had worked three days as the working time was less than the legal limit of forty-five hours. For the weeks in which the applicants had worked four days, the report calculated the total working time as fifty-six hours, leading to an assessment in the report of nine hours of overtime. On 28 December 2009 the İzmir Labour Court rendered a final judgment in the applicants’ case, based on the expert report of 21 July 2009. As a result of that interpretation, some of the applicants’ claims were dismissed entirely, while the others were awarded almost ninety percent less than the previous expert report had calculated. 29. On 25 January 2010 the applicants appealed against the decision and maintained that the fact that they had worked continuously for twenty-four hours had already been confirmed by the legal records of the Ministry of Labour, both parties’ witness statements and other evidence in the file, including the expert reports overturned by the Court of Cassation. Although they had proven that fact, the judgment had been based on the presumption that working for more than fourteen hours a day was physically impossible. 30. On 18 March 2010 the Court of Cassation upheld the İzmir Labour Court’s decision without responding to the applicants’ objections.
| 0 |
test
|
001-172551
|
ENG
|
RUS
|
COMMITTEE
| 2,017 |
CASE OF DUDNICHENKO AND WAES v. RUSSIA
| 4 |
Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
|
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 under Article 5 § 3 of the Convention of the excessive length of their pre-trial detention. They further complained under Article 5 § 4 of the Convention. In particular, in application no. 49507/10 the applicant argued that a court had examined appeals against the detention orders in his and his counsel’s absence, and in application no. 76349/12 the applicant submitted that his appeal against a detention order had not been examined “speedily”.
| 1 |
test
|
001-152311
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,015 |
BULGARTSVET-VELINGRAD OOD AND KOPPE v. BULGARIA
| 4 |
Inadmissible
|
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
|
1. The applicant company, Bulgartsvet-Velingrad OOD, is a limited liability company created in 1992. It is registered in Velingrad, Bulgaria. The applicant, Mr Konstantin Mihaylov Koppe, is a German national who was born in 1943 and lives in Germany. The applicants were represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government were represented by their Agents, V. Hristova, M. Kotseva and M. Dimova, of the Ministry of Justice. 2. The German Government, informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court, have not availed themselves of this opportunity. 3. The applicant held a fifty per cent stake in the applicant company. The other fifty per cent was held by Fabrika 12 EOOD, a Bulgarian limited liability company wholly owned by the applicant. 4. On 3 February 1998 another company, Oranzherii Pazardzhik EAD (“OP”), a state-owned limited liability company, was declared insolvent and insolvency proceedings were opened. Following a public auction of part of its property, on 24 March 1999 the applicant company acquired several greenhouses. However, in a final decision of 22 November 1999 the auction was cancelled. 5. Pending a new auction, on 14 December 1999 OP, represented by its trustee in insolvency, and the applicant company signed a contract pursuant to which the applicant company was appointed guardian of the greenhouses until they were sold. The applicant company undertook to maintain the greenhouses’ equipment and to carry out urgent repair works. In the meantime the applicant company was entitled to use the property and in exchange undertook to pay monthly rent. 6. In addition to the repairs indicated in the contract of 14 December 1999, the applicant company carried out substantial works on the greenhouses, which it alleged were necessary for the latter’s proper functioning. On an unspecified date it requested the trustee in insolvency of OP to reimburse the costs of those works. Initially the trustee included those costs in the list of accepted claims against OP. Later, however, following an objection by one of the other creditors of OP, which was based on the fact that the costs were substantial, had not been approved by the creditors and had been incurred after the beginning of the insolvency proceedings, in a decision of 4 July 2000 the trustee removed this claim from the list. 7. In a final decision of 11 July 2000, the Pazardzhik Regional Court upheld the removal, as it was not satisfied that the additional works had been urgent and necessary. Moreover, the works had not been authorised by the trustee and the remaining creditors. The Regional Court considered that a creditor such as the applicant company, with a claim which had not been agreed in the insolvency proceedings, could make that claim in separate civil proceedings. 8. On 31 October 2000 the applicant company brought a civil claim against OP and also against the Ministry of Agriculture, as a representative of the State, which owned OP’s capital. Initially it sought 100,000 Bulgarian levs (BGN) (the equivalent of 51,072 euros (EUR)), representing part of the repair costs. In the course of the proceedings it increased its claim to BGN 1,195,520 (approximately EUR 610,582), claiming that OP had unjustly enriched itself by that amount. The applicant company did not seek to have its claim included in the list of accepted claims prepared by the trustee, but argued that it was entitled to receive payment prior to the distribution of any amounts obtained through the sale of the property of OP among the remaining creditors. 9. In a judgment of 30 October 2001, the Sofia City Court granted the claim against OP. It found that the applicant company had been unable to claim or receive payment in the course of the insolvency proceedings, and that therefore it was open to it to do so in separate civil proceedings. It went on to say that the repairs had been necessary, that the defendant company had unjustly enriched itself, and that it had had to reimburse the costs of the repairs. It accepted the applicant company’s argument that it had been a “third party” to the insolvency proceedings, and that it was entitled to receive payment outside those proceedings. Thus, the domestic court ordered OP to pay the applicant company the amount of BGN 1,195,520, plus interest and costs. 10. On the other hand, the Sofia City Court dismissed the applicant company’s claim against the Ministry of Agriculture, finding that the latter could not be held liable for OP’s debts. 11. OP appealed against the above judgment, but its appeal was rejected as inadmissible in a final decision of the Supreme Court of Cassation of 17 May 2002. As a result, the Sofia City Court’s judgment became final. 12. On 9 June 2002 OP requested the reopening of the proceedings, claiming that it had not been properly summoned to the first two hearings in the case, held on 11 December 2000 and 12 February 2001. In a judgment of 14 March 2003 the Supreme Court of Cassation allowed the request and reopened the proceedings. 13. After a fresh examination of the case, in a decision of 22 March 2004 the Sofia City Court discontinued the proceedings in respect of OP. It held that the claim was precluded by virtue of the provision of the newly introduced section 637(5) of the Commerce Act (“the CA”, see paragraph 25 below), which concerned procedural rights and was therefore applicable to pending proceedings. 14. As regards the proceedings against the Ministry of Agriculture, the Sofia City Court observed that they were still pending. 15. On appeals by the applicant company, on 9 May and 6 August 2004 respectively the Sofia City Court’s conclusions were upheld by the Sofia Court of Appeal and the Supreme Court of Cassation. 16. The Supreme Court of Cassation considered in addition that the applicant company should have lodged a claim under section 694 of the CA (see paragraph 24 below) within the insolvency proceedings. 17. The applicant company submits that it became aware of the Supreme Court of Cassation’s decision of 6 August 2004 on 14 September 2004. 18. Following the discontinuation of the proceedings in so far as they concerned OP, the proceedings continued against the Ministry of Agriculture. 19. In a judgment of 23 January 2008, the Sofia City Court rejected the applicant company’s claim against the Ministry. It noted that it had ordered OP to provide several invoices which it considered relevant. Those invoices had not been presented (OP had in the meantime been wound up); accordingly, the domestic court found that the claim had not been proved. 20. The applicant company did not lodge an appeal against the above judgment, as it was entitled to do under domestic law. 21. The applicant company used the greenhouses until 2002, when it was evicted. The greenhouses were sold at a new public auction in 2004. 22. Company insolvency is governed by Part IV of the Commerce Act (“the CA”) of 1991. Since its enactment in 1994, its provisions relating to company insolvency were amended on numerous occasions. 23. Pursuant to section 685 of the CA, creditors had to declare their claims against the insolvent company. The trustee in insolvency then prepared a list of accepted claims. Refusal by the trustee to accept a claim and include it in the list could be contested before the insolvency court. A creditor could also object to a decision to accept another creditor’s claim. At the relevant time, the trustee would decide on the matter and then submit the list for approval to the insolvency court. 24. By section 694 of the CA, introduced in October 2000 and as worded at the time, a creditor whose claim had not been accepted and included in the list could also bring an action for a declaration seeking to establish the existence of the claim. Such an action could be brought within fourteen days of the entry in the company register of the insolvency court’s decision approving the list of accepted claims. If the claimant was successful, the claim was to be satisfied within the insolvency proceedings. A similar provision existed in the CA until June 1998, when it was repealed. 25. Until the end of June 2003 there was no provision which explicitly allowed or barred the bringing of a civil claim against an insolvent company separately from the insolvency proceedings against that company, and there was no well-established practice of the domestic courts in this regard. Following amendments to the CA of June 2003, a bar to such claims was introduced (initially section 637(5), currently (6)).
| 0 |
test
|
001-156068
|
ENG
|
AUT
|
CHAMBER
| 2,015 |
CASE OF KUTTNER v. AUSTRIA
| 3 |
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković
|
5. The applicant was born in 1950 and currently lives in Traun. 6. On 21 January 2005 the Linz Regional Court convicted the applicant of having deliberately caused severe bodily harm and sentenced him to six years’ imprisonment. The court found that the applicant had beaten his 80year-old mother by kicking and punching her face, head and thorax, which resulted in a severe and lasting infirmity. The applicant had been convicted on seven previous occasions, four of which involved similar offences of violence. Relying on a report by a psychiatric expert, the court found that even though the applicant was responsible for his acts, he was suffering from a grave mental disorder, was dangerous to the public and was likely to re-offend. For these reasons, the court ordered the applicant’s detention in an institution for mentally ill offenders in accordance with section 21 § 2 of the Criminal Code, in addition to the term of imprisonment. Given the time the applicant had served in detention on remand, the Court stated that the applicant’s detention pursuant to the prison sentence was likely to end on 7 May 2010. 7. On 7 June 2005 the Linz Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal against his sentence. On the same day the applicant was placed in Garsten detention centre, an institution for mentally ill offenders. 8. On 31 March 2006, in a first set of proceedings in which the applicant requested his conditional release from the institution, the Steyr Regional Court (“the Regional Court”) ordered that the applicant remain in the institution. The Court of Appeal dismissed the applicant’s appeal against this decision on 9 May 2006. 9. On 10 January 2007 the applicant applied for the lifting of the order to detain him at Garsten detention centre (under section 21 § 2 of the Criminal Code) in order to serve his sentence in an ordinary prison. 10. On 12 January 2007 the Regional Court asked the Garsten prison administration and its psychiatric and psychological service to transmit further information on the applicant, which it received on 9 March 2007. On 12 March 2007 it ordered a fresh psychiatric expert report and instructed the expert to submit the report before 11 June 2007. 11. On 23 June 2007 the applicant filed an application with the Court of Appeal for the setting of a time-limit (Fristsetzungsantrag) under section 91 of the Court Act (Gerichtsorganisationsgesetz) for the Regional Court to decide on his application, as the last determination of the continuing need to detain him had taken place on 9 May 2006, and he had not yet received a decision concerning his application of 10 January 2007. 12. On an unspecified date, the applicant was transferred to a psychiatric institution in Vienna. It appears, however, that this transfer was only temporary, and on an unspecified date, the applicant was transferred back to Garsten detention centre. 13. After having been urged by the Regional Court to deliver her report, the expert replied on 3 July 2007 that she would submit it as soon as possible. She did so on 10 July 2007 and explained that the applicant had meanwhile been transferred to an institution in Vienna, for which reason she had not been able to examine him earlier. She found that the applicant, even though he had started to respond positively to his therapy, was still suffering from a serious mental disorder and that there was still the risk that the applicant would commit dangerous acts of violence. 14. On 30 July 2007 the Court of Appeal granted the applicant’s application under section 91 of the Court Act and ordered the Regional Court to take a decision by 3 August 2007 at the latest. It held that in the light of the chronology of events in this case, the Regional Court had not fulfilled its duty to take a decision within a reasonable amount of time. 15. On 31 July 2007, after having held an oral hearing with the applicant present, the Regional Court ordered the continuation of his detention in an institution for mentally ill offenders. On the basis of the expert opinion obtained, the court found that the applicant was still dangerous and likely to re-offend. It dismissed the applicant’s request for the hearing of two prison officers as witnesses, since these persons could not make a relevant assessment in this respect and that therefore the applicant’s request lacked a relevant issue on which evidence should be taken (relevantes Beweisthema). 16. On 16 August 2007 the applicant appealed against this decision to the Court of Appeal maintaining his view that the placement in a psychiatric institution was no longer justified. He maintained, furthermore, that the length of the proceedings for the determination of this issue was in breach of Articles 5 and 6 of the Convention. 17. On 10 September 2007 the Court of Appeal dismissed the applicant’s appeal. On the basis of the evidence obtained, the expert report of a psychiatrist, reports by the head of Garsten detention centre and its psychiatric and psychological service, it found that despite progress in the applicant’s therapy he still suffered from a grave mental disorder and was likely to commit acts of violence in the future. The Court of Appeal also considered that the Regional Court had correctly dismissed the applicant’s request for the taking of further evidence. As to the applicant’s argument that the proceedings related to his request had lasted an unreasonably long time, the Court of Appeal found that, according to the relevant caselaw, the condition under section 25 § 3 of the Penal Code for annual review of the further necessity of detention in an institution was complied with if such a review had been started by the competent court within the one-year period, whereas it was not necessary that the decision following the review be taken within that time-limit. 18. On 28 February 2008 the applicant again applied for the order for psychiatric detention to be lifted, and to be transferred to an ordinary prison. After a further application by the applicant under section 91 of the Court Act, the application was finally examined on 10 September 2009, when the Regional Court ordered the termination of the applicant’s psychiatric detention, suspended the remaining seven months of his prison sentence and released him subject to a number of conditions.
| 1 |
test
|
001-155824
|
ENG
|
LIE
|
CHAMBER
| 2,015 |
CASE OF A.K. v. LIECHTENSTEIN
| 3 |
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Constitutional proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
|
6. The applicant was born in 1970 and lives in St. Gallenkappel, Switzerland. 7. Since 2004, the applicant and F.H. have been involved in legal disputes against each other concerning the property rights in 75% of the bearer shares in both the EMK stock corporation and the EMK Engineering stock corporation, companies resident and registered in Liechtenstein which trade in building units. 8. By an immediately enforceable interim injunction dated 28 December 2009, taken in accordance with Article 276 § 1 of the Act on Enforcement and Injunction Proceedings (see paragraph 36 below), the Regional Court granted F.H.’s request to prohibit the Real Property and Commercial Registry to register certain changes concerning the EMK Engineering stock corporation which had been decided in the corporation’s extraordinary shareholders’ meeting of 23 July 2004 (file no. 02.CG.2007.83). It thereby confirmed its provisional order of 21 March 2007 to that effect. The Regional Court notably prohibited registering the decisions taken in that meeting that F.H. had been voted out of his office as a representative and member of the corporation’s supervisory board with power to represent the corporation and that the applicant had been elected managing director of the corporation with power to represent the corporation alone. 9. On 25 March 2010 the Court of Appeal quashed that decision on the applicant’s request and the case was remitted to the Regional Court for a further investigation of the facts. 10. On 30 July 2010 the Regional Court issued a fresh identical interim injunction. It stated that the interim order served to secure F.H.’s claim in the main proceedings for a declaration that the decisions taken in the EMK Engineering stock corporation’s extraordinary shareholders’ meeting of 23 July 2004 were null and void and for a prohibition of the entry of those decisions in the real property and commercial register. 11. The Regional Court confirmed that the applicant had not obtained property of 75% of the bearer shares in the EMK Engineering stock corporation and had not therefore validly represented 75% of the shares in the corporation’s extraordinary shareholders’ meeting. The decisions taken in that meeting were thus unlawful. It further found that interim injunctions under Article 276 § 1 of the Act on Enforcement and Injunction Proceedings could also be taken in order to secure claims for a declaration (Feststellungsansprüche) if such a measure was necessary to preserve the status quo of either an object or a legal relationship. For such interim orders the restriction that interim injunctions should not anticipate the outcome of the main proceedings did not apply. In the present case, it was necessary to maintain the status quo in the commercial register in order to prevent F.H. from suffering irreversible damage. F.H. could suffer such damage if the changes in question were made in the real property and commercial register as dispositions could then be taken for the stock corporation without his participation. 12. On 23 September 2010 the Court of Appeal dismissed the applicant’s appeal against the order of 30 July 2010. 13. On 22 October 2010 the applicant lodged a constitutional complaint with the Constitutional Court against the Court of Appeal’s decision dated 23 September 2010. 14. On 7 November 2011 the Constitutional Court informed the applicant that judges B., Bu., S., V. and W. would deliberate on his complaint in private on 28 November 2011. 15. By submissions dated 18 November 2011, which were received at the court on 21 November 2011, the applicant, who was not represented by counsel at that stage of the proceedings, lodged motions for bias against all five judges called upon to decide on his complaint and against the secretary in charge (Schriftführerin), V. 16. The applicant argued, in particular, that the Constitutional Court had to his disadvantage not quashed previous decisions of the lower courts in related proceedings. Moreover, he complained that it had taken the Constitutional Court more than one year to assign the judges who were to decide on his complaint despite the importance of the proceedings for him and that the court discriminated against German nationals. 17. Furthermore, in the applicant’s submission, judges B., V. and W. and secretary V. had failed to take measures to remedy the disadvantages resulting from the fact that the commercial register did not reflect his rights concerning the EMK Engineering stock corporation and had arbitrarily disregarded his rights under Article 6 of the Convention and Article 1 of Protocol no. 1 to the Convention in previous related proceedings. 18. The applicant further submitted that, for different reasons, the five judges of the Constitutional Court individually were not impartial. As regards the court’s president, judge B., the applicant complained that the latter had not granted his constitutional complaint suspensory effect and had refused to order interim measures in related proceedings. Furthermore, judge B. was a member of different committees and commissions of which judges of the Supreme Court, which had given a decision contested by him in the main proceedings, and judge H., who was a judge at the Constitutional Court and F.H.’s brother, were equally members. 19. In the applicant’s submission, judge Bu., for his part, was biased because he worked for the Government in that he drew up expert reports on constitutional questions and taught at seminars organised by the Government. He further worked with judge H. on a regular basis. 20. The applicant further stressed that judge S. was a member of the supervisory board of a state-owned company and was therefore not independent and impartial. 21. Judge V., for his part, had been a professor at the Liechtenstein University and was, therefore, not independent as he had worked for the Government and as judges had short terms of office. Moreover, he was biased as he was a good friend of judge H., F.H.’s brother. 22. Finally, judge W., in his law firm, was the partner of a lawyer against whom the applicant had brought proceedings concerning an inheritance. Another lawyer of that law firm had already represented the EMK Engineering stock corporation. Moreover, judge W. had previously worked as a lawyer in judge H.’s law firm. 23. Three of the judges of the Constitutional Court made statements on the applicant’s motions for bias. Judge Bu. stated that he had not drawn up any expert reports for the Government since his appointment as a judge. Judge S. submitted that he did not draw considerable income from his work as a member of the supervisory board of a state-owned stock corporation. Judge W. explained that he did not have any knowledge of whether his partner in the law firm, who was currently absent, was involved in unrelated legal proceedings with the applicant. His work for judge H. dated back ten years and he had been working as a self-employed counsel for some nine years already since then. 24. On 28 November 2011 the Constitutional Court, composed of judges B., Bu., S., V. and W., dismissed the applicant’s motion for bias against them (file no. StGH 2010/141). 25. The Constitutional Court stated that, in accordance with the principle that, if possible, a motion for bias should not be decided upon by the challenged judge, the challenged judges, respectively, had not participated in the deliberations and the decision on the respective motion for bias against them, which had been decided upon by the four remaining judges. 26. The Constitutional Court considered that the fact alone that judges B., V. and W. had already taken part in decisions finding against the applicant in related proceedings did not suffice to substantiate that there were objectively justified doubts as to their impartiality. Likewise, the fact that the judges were elected for a period of five years did not compromise their impartiality. 27. The independence of the judges of the Constitutional Court vis-à-vis the executive was guaranteed by the Constitution. The applicant further had not substantiated that the executive had influenced the judges of the Constitutional Court in the present proceedings in any way. The fact that some of the judges had previously worked for the executive did not suggest that the executive had influenced the present proceedings. 28. Finally, the fact that the challenged judges worked together with F.H.’s brother, the vice-president of the Constitutional Court, on a regular basis and were friends of the latter did not objectively cast doubts on their impartiality in the circumstances of the present case. In a small country like Liechtenstein, excessively strict standards in this respect would disproportionately obstruct the administration of justice. 29. The decision was served on the applicant on 19 December 2011. 30. On 19 December 2011 the Constitutional Court, composed of judges B., Bu., V., S. and W., allowed the applicant’s constitutional complaint in so far as he had complained under Article 6 of the Convention about the unreasonable length of the proceedings and dismissed the remainder of his complaint (file no. StGH 2010/141). The applicant complained about that judgment in a new, separate application (no. 67213/12) to the Court.
| 1 |
test
|
001-167799
|
ENG
|
AUT
|
CHAMBER
| 2,016 |
CASE OF VERLAGSGRUPPE NEWS GMBH v. AUSTRIA
| 4 |
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
|
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
|
5. The applicant company is a limited liability company based in Vienna. It is the owner and publisher of the weekly news magazine Profil. 6. Until 2007 the Land of Carinthia (Land Kärnten) owned almost 50% of the shares of Hypo Alpe-Adria Bank. From 1996 until 2006 a man called Mr. Rauscher was in charge of the treasury department of the bank. In that capacity he was responsible for authorising foreign currency transactions. He was answerable only to the bank’s executive board, which consisted of three members. While Mr. Rauscher was head of the treasury department, his father, who had been a regional government member responsible for finance until 1996, was also on the bank’s supervisory board. The father had that position until 2003. 7. At the beginning of 2006 the bank’s executive board informed the Financial Market Authority (Finanzmarktaufsicht, “the FMA”) that the bank had financial difficulties. On 31 March 2006 the executive board held a meeting with the executive board of the FMA and informed it that the bank had made a loss of several hundred million euros in 2004. Mr Kulterer, the chief executive of the bank, informed the FMA that the treasury department had gone over its internal transaction limit of 100 million euros (EUR) by EUR 47 million. 8. Between 1 and 6 April 2006 a number of daily newspapers published reports on the investigation and mentioned Mr Rauscher by name as responsible for the speculative transactions in question. Among those articles was one by newspaper Der Standard published on 4 April 2006 (see Standard Verlags GmbH v. Austria (no. 3), no. 34702/07, §§ 6-17, 10 January 2012). 9. On 5 April 2006 the FMA filed criminal information (Strafanzeige) about offences committed in relation to the business of Hypo Alpe-Adria Bank against the three members of the executive board and Mr Rauscher, accusing them of embezzlement by investing money entrusted to the bank contrary to the instructions of the executive board. In substance, the FMA alleged that Mr Rauscher had authorised highly speculative transactions with foreign currency derivatives (swaps), disregarding instructions by the executive board. 10. In its issue of 10 April 2006, the applicant company published an article on the investigations into the heavy losses incurred by Hypo AlpeAdria Bank. The front cover of Profil had the words: “Kärntner HypoAffäre – Wie viel wusste Haider?” (“Carinthian Hypo affair - How much did Haider know?”). 11. The article, headlined “Schwere Hypothek” (“Heavy Mortgage”), ran to nine pages. It reported on the enormous loss of EUR 328 million incurred by Hypo Alpe-Adria Bank in 2004, the question of who was responsible for the damage and whether there were failings in the bank’s risk management. It accused the bank’s executive board of failing to give information to the supervisory board, the bank’s accountants and the FMA, and of trying instead to hush up the losses by manipulating the balance sheets for 2004, which meant that the full extent of the damage was only discovered by external accountants when examining the balance sheets for 2005. The accountants had then informed the FMA. Furthermore, the article featured an interview with Mr Kulterer, confronting him with those accusations. Mr Kulterer was quoted as accusing Mr Rauscher of having disregarded internal guidelines in his foreign currency transactions. The relevant passages of the article read as follows: “By the time the warning system was triggered the disaster had long since run its course. On Wednesday 17 November 2004 the risk management and control software programme in the head offices of Hypo Alpe-Adria Bank in Klagenfurt showed, in all the relevant departments of the bank, exactly the kind of figures which bring managers of credit institutions out in a cold sweat: staggering losses on investment operations. In the treasury division, which manages the bank’s liquidity and for that purpose trades, among other things, in interest rates and currencies, there was a shortfall of more than 100 million euros. ‘At that point we immediately called a halt’ said CEO Wolfgang Kulterer. However, as several similar operations were in progress simultaneously, it was impossible ‘to close the floodgates at once’. When that was eventually done, the losses stood at 328 million euros, several times higher than the self-imposed threshold of 100 million. Treasury manager Christian Rauscher, who was responsible for authorising the transactions, was immediately told to clear his desk. (This son of the former SPÖ regional finance chief Max Rauscher was not available for comment). However, the consequences of the orgy of speculation, which lasted just two weeks, continue to preoccupy the bank’s management. And they are not the only ones: in particular, the manner in which Kulterer and his colleagues dealt with the loss-making transactions has also come to the attention of the authorities in recent days. Last Wednesday the financial markets supervisory authority (the FMA) even saw fit to lodge a criminal complaint against the entire executive board. Rauscher is the object of a preliminary enquiries [Vorerhebungen] (file no. 3 St 79/06x) before the Klagenfurt Regional Court on suspicion of embezzlement. The executive board faces charges of misrepresenting the end-of-year accounts, in other words, falsifying the balance sheets. ... The transactions in question were all performed between 20 September and 5 October 2004. According to Hypo boss Kulterer, Rauscher – in breach of internal regulations – gambled, by means of so-called swaps, on the occurrence of a highly explosive combination of two trends on the financial markets: on the one hand a fall in interest rates and on the other a rise in the dollar and the yen against the euro. A few weeks later, on 17 November 2004, the perfect storm hit. ... Lack of controls. Rapid rates of growth motivate not just the boss, but also the employees – including the now ex-treasury manager Christian Rauscher. According to inside sources, Rauscher may have set the stakes so high precisely because he wanted to make his mark as a candidate for the vacant post of department manager. After all, high stakes mean correspondingly high profits if all goes according to plan. A marked surplus on his account would undoubtedly have boosted his chances of securing the post.” 12. The article continued with an overview of the history of Hypo AlpeAdria Bank, which had gone from being a regional bank to an international investment bank in the space of fifteen years. The article looked at previous business transactions which had resulted in risks and losses for the bank and the conduct of the executive board. Finally, the article examined the relationship between the bank’s management and local politicians and asked how much Mr Haider, the then regional governor of Carinthia, knew of the losses, and when he had found out about them. It noted that the Land of Carinthia owned 49.4% of the bank and that funds from the bank had financed a number of political projects in the region, in particular Mr Haider’s Future Fund (Zukunftsfonds), designed to fund infrastructure and other large-scale projects. 13. On 14 June 2006 Mr Rauscher brought proceedings against the applicant company for disclosing his identity in breach of section 7a of the Media Act (Mediengesetz). He submitted that he was not a public figure and that his position at the bank had not been such as to justify the disclosure of his name. He asserted that when authorising the transactions at issue he had acted in accordance with his instructions and with the approval of his superiors. The publication of his name had had negative repercussions on his professional advancement and had not been justified by any public interest. 14. On 19 August 2008 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) dismissed Mr Rauscher’s action. It found that the following facts had been established: the article had provided a comprehensive report on the losses of Hypo Alpe-Adria Bank. At the time the article had been published, the Land of Carinthia had owned 49.4% of the bank. The claimant’s father had been a regional government member responsible for finances and had also been on the bank’s supervisory board until April 2003. The claimant had been the head of the bank’s treasury department since 1999. He had not been active in politics nor had he been in the public eye in connection with his professional activity. The Regional Court noted that the task of a bank’s treasury department was to carry out liquidity and finance planning for the bank. Hypo Alpe-Adria’s treasury department had been directly answerable to the executive board. The transactions which had subsequently led to such enormous losses had been carried out between the end of September and the beginning of October 2004 and the claimant had been the main person in charge. On 5 April 2006 the FMA had sent information to the Klagenfurt public prosecutor’s office on three members of the executive board, who were suspected of manipulating the bank’s balance sheets, and on the claimant who was suspected of embezzlement for carrying out unauthorised foreign currency transactions. Following receipt of that information the public prosecutor’s office had started preliminary enquiries. From 24 May 2006 preliminary investigations (Voruntersuchung) had been conducted by the Regional Court. Criminal proceedings against the claimant had been discontinued in 2008. After accusations against the claimant had been published in various media, his employment contract had been terminated. He had not been able to find a similar position in another bank. 15. The Regional Court noted that section 7a (1) of the Media Act required a weighing of the claimant’s interest in the protection of his identity and the public interest in its disclosure. As a rule, adults who were suspected of having committed a crime were only protected against the disclosure of their identity if such disclosure disproportionately affected their professional advancement. 16. It observed that at the material time the Land of Carinthia owned almost 50% of Hypo Alpe-Adria Bank. That fact alone demonstrated an increased public interest as the taxpayer had a right to know who was responsible for the bank’s losses. The applicant had been a senior employee at the bank, and had been suspected of embezzlement. Although the criminal proceedings had still been at an early stage, the Financial Market Authority, the competent controlling authority, had laid criminal information against the claimant. Moreover, the chief executive of the bank, Mr Kulterer, had levelled of obtaining information outweighed the claimant’s interest in not having his name disclosed. 17. On 20 April 2009 the Vienna Court of Appeal (Oberlandesgericht) granted an appeal by the claimant, declared that the disclosure of his identity in the article had violated his rights and ordered the applicant company to pay him EUR 3,000 euros in compensation and to reimburse his procedural costs. 18. The Court of Appeal found that the Regional Court’s conclusion had been wrong after it had weighed the conflicting interests at issue. It shared the view of the Regional Court that there was a public interest in knowing who was responsible for Hypo Alpe-Adria Bank’s losses due to the fact that the Land owned 50% of the bank. However, the article should have confined itself to mentioning the head of the bank’s treasury department without disclosing his name. The public interest in reporting on the criminal offences at issue had not in itself been sufficient to justify disclosing the claimant’s identity. The fact that the claimant had been answerable to the executive board, although he had an important position in the bank, and that the criminal proceedings against him had been at an early stage, meant that the claimant’s interest in protecting his identity outweighed the public interest in the disclosure of his name. 19. The applicant company lodged an application under Article 363a of the Code of Criminal Procedure (Strafprozeßordnung) with the Supreme Court (Oberster Gerichtshof). It submitted in particular that the Vienna Court of Appeal’s judgment had violated Article 10 of the Convention as there had been an overriding public interest in what it had reported, including the disclosure of Mr Rauscher’s identity. 20. On 17 March 2010 the Supreme Court dismissed the applicant company’s application. It examined in detail the reasons given by the Court of Appeal. Referring to the Court’s findings in “Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH v. Austria (no. 2) ((dec.), no. 62746/00, 14 December 2002), the Supreme Court found that the appeal court had correctly weighed the conflicting interests of the claimant under Article 8 on the one hand and of the applicant company under Article 10 on the other, especially because of the early stage of the criminal proceedings against the claimant. 21. The Supreme Court’s judgment was served on the applicant company’s counsel on 15 April 2010.
| 1 |
test
|
001-141625
|
ENG
|
UKR
|
CHAMBER
| 2,014 |
CASE OF DANILOV v. UKRAINE
| 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)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
|
6. The applicant was born in 1967 in the Russian Federation and is currently serving a prison sentence in Ukraine. 7. In December 2002 a group of officers from the State Security Service of Ukraine (“SSU”) and the “Berkut” special armed unit received a mission order to arrest several individuals, including the applicant, implicated in a number of crimes committed as members of a criminal association affiliated with the Odessa Komsomol (Young Communist League), including illegal arms handling, terrorism, assault and robbery with a view to preparing a communist revolution. 8. At about 5 p.m. on 13 December 2002 six armed officers of the SSU and two officers of the “Berkut” unit arrived at a flat in Mykolayiv occupied at the material time by the applicant and three of his acquaintances, and ordered them to lie on the floor. Two of the applicant’s acquaintances complied with the order, while the applicant and another associate started shooting at the officers with firearms. As a result of the shooting, several officers sustained bodily injuries and damage to their protective gear. Having exhausted his cartridges, the applicant attempted to detonate an explosive. At this moment, the officers knocked him onto the floor, immobilised and handcuffed him. 9. At about 11 p.m. on the same date an investigator with the Mykolayiv Regional Prosecutor’s Office drafted an arrest report, indicating that the applicant was suspected, in particular, of attempting to murder law-enforcement officers, that he had been notified of his procedural rights, including the rights to remain silent and to obtain legal assistance, and that he had expressed the wish to have a lawyer. 10. At an unspecified time on the same date the applicant was referred to a forensic medical expert to determine the gravity of his bodily injuries. According to the applicant, the expert assessment was carried out on 13 December 2002. According to the Government, it was carried out the following day (14 December 2002). The assessment revealed that the applicant was suffering from a number of bruises and abrasions to his face, limbs, chest and knees, had swollen lips and a wound on his forehead. The expert qualified the injuries as “minor” and recorded that the applicant had complained of headaches and pain in his limbs and ribs and had explained that he had sustained his injuries when resisting arrest. In particular, he had fallen, had been beaten by the “Berkut” officers and had been subjected to martial arts. 11. At an unspecified time on 13 December 2002 the applicant and his co-detainees were placed in police custody in the Leninskyy District of Mykolayiv. 12. According to the applicant, in the evening of 13 December and the morning of 14 December 2002 he was beaten by police officers, possibly in retaliation for having wounded two officers from their unit earlier that year (on 22 November 2002). Subsequently, the officers questioned him concerning the offences of which he was suspected and solicited incriminating statements concerning a number of other individuals implicated in the revolutionary communist activity. As the applicant refused to cooperate, the officers resorted to various torture techniques. In particular, they suspended him head down from a crowbar by his hands, which were handcuffed behind his knees; beat him with rubber truncheons; stuck needles under his nails; put a gas mask on his face and interrupted his air flow; banged his head against the wall; and jumped on his chest. 13. According to the Government, the applicant’s first questioning did not take place until the afternoon of 14 December 2002. It was conducted in the presence of Ch., who was admitted to the proceedings as the applicant’s legal-aid lawyer. They presented a copy of the police report made on that date. According to that report, which was co-signed by the applicant and Ch., in the course of questioning the applicant informed the investigative authorities that he had arrived in Ukraine in autumn 2002 to advance the revolutionary struggle of the working people against their capitalist exploitation, in particular, by distributing a newspaper and organising trade unions and strike committees. The applicant further acknowledged that he possessed various arms without a licence and had wounded two police officers of the Leninskyy police on 22 November 2002, when they had stopped him in the street and ordered him to empty his pockets. When asked about the origin of the injuries on his face, the applicant said that they had been caused during his arrest operation. 14. On 20 December 2002 Ch. complained to the SSU investigator that the applicant’s health was deteriorating and demanded a medical assessment. 15. On the same date the applicant was referred to a doctor and a neurologist of the SSU polyclinics. They noted, in particular, that the applicant’s ribs hurt when touched and that his wrists were swollen. The applicant was diagnosed with chest, face and knee contusions and was prescribed an x-ray. It was also recommended that the use of handcuffs should be limited and various medications were prescribed. 16. On 26 December 2002 the applicant was again examined by a neurologist from the SSU polyclinics, who confirmed the above findings and prescribed further medication. 17. On 29 December 2002 S., who replaced Ch. as the applicant’s lawyer, lodged a complaint with the prosecutor’s office alleging that the applicant had been beaten and tortured by Leninskyy police officers and demanding a criminal investigation of his bodily injuries. 18. In January 2003 the Leninskyy police collected reports from eight police officers who had been on duty on 13 December 2002 by way of an internal investigation of the applicant’s ill-treatment allegations. Referring to those reports, in which the officers denied having witnessed or taken part in any ill-treatment, it was concluded that no ill-treatment had taken place. According to the applicant, neither he nor his lawyer had been informed of that investigation and its findings. 19. On 3 January 2003 the applicant was examined by medical staff of the Mykolayiv pre-trial detention centre (SIZO) and in-patient treatment for pulmonary pneumonia was prescribed. 20. On 13 January 2003 the prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s alleged ill-treatment. It noted that the applicant had actively resisted his arrest, including by using a firearm, attempting to detonate an explosive and wounding some of the police officers. As the officers had had to break his violent resistance, there were no grounds for suspecting that the minor bodily injuries recorded by the forensic experts had resulted from the application of disproportionate force or from police ill-treatment. According to the applicant, neither he nor his lawyer had been apprised of that decision. 21. On 14 January 2003 the applicant underwent a further forensic assessment to determine whether he was still suffering from bodily injuries and, if so, their origin and timing. The expert concluded that the applicant was suffering from several wounds and a number of abrasions on various parts of his body, which had resulted from impacts with blunt objects. However, she could not say precisely when the injuries had been sustained. 22. On 15 January 2003 the applicant was examined by a doctor, who diagnosed him with suspected accumulation of blood in the pleural cavity (hemothorax), dystrophy and post-traumatic neuropathy of the wrists, and prescribed treatment. 23. On 24 January 2003 the hemothorax diagnosis was confirmed by an X-ray and the applicant underwent a biopsy, after which his state of health slowly started to improve. Subsequently, on numerous occasions in January and February 2003 the applicant was examined by doctors, who prescribed treatment for his wrist, dystrophy and pulmonary problems. 24. In February 2003 the applicant was transferred to the Odessa pre-trial detention centre (SIZO) no. 21 and subsequently placed in its medical unit for in-patient treatment of pneumonia. According to the applicant, his treatment was inadequate. In particular, the unit did not have the necessary antibiotics in stock and refused him an operation to remove a fractured rib fragment, which had allegedly pierced his lung. 25. In April 2003 the applicant was released from the medical unit as his health had improved and placed in a regular SIZO cell. According to him, the SIZO was generally overcrowded and the sanitary conditions were poor. 26. In April 2003 the applicant’s lawyer, S., was replaced by T., who lodged a fresh complaint with the prosecutor’s office demanding an investigation of the applicant’s purported ill-treatment in December 2002. He alleged that the applicant had not sustained any serious injuries in the course of his arrest, as once he had exhausted his cartridges, the trained officers, who had significantly outnumbered the two resisting suspects, had quickly immobilised him. On the other hand, once in custody, the applicant had been severely beaten up and tortured by the police officers. As a result, he had sustained serious injuries, including long-term impairment of the wrist nerve function and seven fractured ribs. 27. On 24 April 2003 the applicant underwent a further forensic medical assessment, in which a board of experts was asked to determine whether the applicant was suffering from any illnesses at the material time and whether he was fit for detention. The board of experts concluded that the applicant had consolidated fractures of seven ribs and residual traces of pulmonary pneumonia. They further concluded that the applicant’s state of health in general was stable and that he did not need any medical intervention at the material time. 28. On 7 May 2003 the prosecutor’s office again refused to institute criminal proceedings in respect of the applicant’s ill-treatment allegations, having found that there was no basis to conclude that his injuries had been indicative of ill-treatment or the application of disproportionate force by the arresting officers. The decision referred to the results of the internal investigation by the Leninskyy police in January 2003, to the findings of the medical experts who had qualified the applicant’s injuries as minor, and to the accounts of the arresting officers concerning the violent nature of the applicant’s resistance during his arrest. It was also noted that the applicant had not complained of purported ill-treatment until two weeks after the relevant events. 29. On 27 May 2003 the applicant, along with ten other individuals implicated in criminal activity as members of the Komsomol group, was committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”) acting as a first-instance tribunal. 30. According to the applicant, on the trial days he was often summoned to an overcrowded transit area early in the morning and would sometimes have to wait for several hours before being transported to the court premises. Likewise, there would be a delay in transferring him from the transit box back to his regular cell upon his return. Catering arrangements were rarely made for the detainees on the days they were scheduled for court hearings. As a result, the applicant was always exhausted on the hearing days, which impeded his ability to concentrate during his trial. 31. According to the Government, pursuant to the applicable regulations, the detainees scheduled for court hearings were always supplied with either a packed lunch or a hot lunch at the court building. There were no transportation delays or other inconveniences affecting the applicant’s concentration in a way which was incompatible with his effective participation in the trial. 32. During the trial, the applicant acknowledged that he held revolutionary communist views and had taken part in some actions mistakenly qualified as robberies, as in fact they had been “expropriations” of property obtained by the capitalists by way of exploiting the working class, to be used for revolutionary purposes. He also acknowledged that he had handled firearms and explosives without a licence, had inflicted gunshot wounds on two police officers on 22 November 2002 and had violently resisted arrest. The applicant chose to remain silent concerning the details of robberies and other crimes with which he was charged, as they had been committed in association with other co-defendants. He also stated that he had been beaten and tortured by the police in December 2002, but that the ill-treatment had not influenced his testimonies or defence strategy. 33. In November 2003 B., one of the applicant’s co-defendants, died in detention. Following his death, some of the defendants complained that B. had been tortured to death and demanded an investigation into his and the others’ alleged ill-treatment by the investigative authorities. 34. The court ordered the prosecutor’s office to investigate those allegations. Following the investigation, the prosecutor’s office reported that there was no case to answer. In particular, B. had died of cancer and the applicant had been injured as a result of the application of reasonable force during his arrest. 35. On 19 July 2004 the Regional Court convicted the applicant of distribution of materials propagating violent revolt against the constitutional order; membership of a criminal association; several armed robberies; attempted murder of police officers; smuggling; and illegal handling of firearms and explosives. The applicant was sentenced to fourteen years’ imprisonment. The court dismissed his allegations of ill-treatment as unsubstantiated, having accepted the findings of the prosecutor’s office that his injuries had been caused during his arrest. 36. The applicant, represented by T., lodged a cassation appeal. According to an uncertified and unsigned copy of that appeal presented by the applicant to the Court, in his submissions before the Supreme Court he argued that he had been arbitrarily convicted of the robberies based on the inconsistent testimonies of his co-defendants. He further alleged that he had had no intent to kill the law-enforcement officers he had wounded, and that the motives for his participation in the revolutionary communist movement were benevolent and aimed at liberating the people from an oppressive political regime. He further reiterated his complaints of ill-treatment by the police and demanded a criminal investigation. 37. On 29 September 2004 the applicant signed an affidavit that he had no claims against the Odessa SIZO administration or any inmates. 38. On 26 July 2005 the Supreme Court upheld the applicant’s conviction and sentence in principle, having made some amendments to the text. It noted, in particular, that the applicant’s conviction was based on sufficient evidence, including testimonies by some of his co-defendants and victims of his crimes and that there was no case of ill-treatment to answer. The applicant’s conviction for distribution of propaganda was neither challenged nor reviewed. 39. In November 2005 the applicant was transferred from the Odessa SIZO to the Perekhrestivka no. 56 correctional colony in the Sumy Region to serve his sentence. 40. In October 2006 the applicant was again transferred to the Kryvyy Rig no. 80 correctional colony in the Dnipropetrovsk Region, at which a less strict regime was in place. 41. On 30 October 2006 the administration of the Dnipropetrovsk SIZO, where the applicant had arrived by way of transit, registered the applicant’s intention to go on hunger strike. 42. Following a medical report by the Dnipropetrovsk SIZO medical commission, which concluded that the applicant’s health was degenerating, he was force-fed on 8, 11, 12 and 14 November 2006. 43. On 16 November 2006 the applicant arrived at the Kryvyy Rig Colony. 44. On 17 November 2006 the applicant underwent a medical examination and was found to be suffering from dystrophy. He was also diagnosed with pancreatitis and heart and liver failure, and was prescribed in-patient treatment. On the same date the applicant stopped his hunger strike and continued to receive in-patient treatment for pancreatitis for most of December 2006. 45. In December 2006 and January 2007 the Ukrainian authorities received several applications from Russian-based public interest groups concerning the applicant’s alleged ill-treatment by the prison authorities during his transit and on the day of his arrival at the Kryvyy Rig Colony. They noted, in particular, that according to their information, the prison authorities had arbitrarily refused to dispatch the applicant’s correspondence while he had been in transit. They continued that, in protest at this refusal, on 24 October 2006 the applicant had started a hunger strike, which had been neither registered nor medically monitored until 30 October 2006, thus leading to the deterioration of his health. Subsequently the applicant had been force-fed, which procedure had been degrading. Furthermore, following his arrival at the Kryvyy Rig Colony, the wardens had ordered him to mop the floors as a sign of his inferiority and subservience, notwithstanding his critical state of exhaustion. As the applicant had refused to comply with this order, the wardens had beaten him up and he had received no proper medical assistance. 46. On 20 February and 6 April 2007 the applicant, questioned by an officer from the prosecutor’s office in connection with the above-mentioned applications, indicated in writing that he had no complaints against the prison authorities and that he had been satisfied with the quality of medical supervision and assistance provided to him. 47. On 18 April 2007 the prosecutor’s office informed the Consulate of the Russian Federation that the applicant had no complaints concerning the conditions of his detention or the medical assistance available to him. In particular, he had undergone treatment for various diseases, including dystrophy, and his weight had increased from 44 to 53kg. 48. In August 2007 several Russian-based public interest groups complained to the Ukrainian authorities that the prison administration had subjected the applicant to unfair treatment. In particular, his correspondence stored in his dresser had been arbitrarily seized. 49. On 8 November 2007 the prosecutor’s office denied that there had been any breaches of the applicant’s rights by the prison administration. It acknowledged that the allegations that some letters from the applicant’s file had been missing were true. However, rather than having been seized by the administration, they had been mistakenly recycled by another prisoner, who had been cleaning the cell. The applicant himself had refused to pursue any claims against the administration. 50. Between October 2007 and September 2008 the applicant received treatment for tuberculosis, which was subsequently considered cured. 51. On 22 September 2008 the Dnipropetrovsk department for the enforcement of sentences informed the applicant’s lawyer that the applicant had received all the necessary medical treatment and at the material time his health was satisfactory. 52. On 13 May 2009 the Regional Court refused to send the applicant’s lawyer in Russia copies of various documents from his case file, referring to the lack of necessary resources for copying and posting. It further notified the lawyer that he could study the case file in court and take any extracts he considered necessary, if he so wished. 53. In August 2010 the applicant was transferred to the Petrivska no. 24 colony.
| 1 |
test
|
001-158353
|
ENG
|
UKR
|
CHAMBER
| 2,015 |
CASE OF BASYUK v. UKRAINE
| 4 |
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Josep Casadevall;Vincent A. De Gaetano
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5. The applicant was born in 1940 and lives in Odessa. 6. On 4 September 2005 the applicant’s daughter, Ms Ye., and her child D., when crossing a road, were hit by a car driven by Ms M. It appears that the driver called an ambulance and the police. According to her statements to the police, Ms Ye. and the child had stopped at first in the middle of the road giving her the impression that they would wait until the car passed, but then had unexpectedly started running further across the road making the collision inevitable. 7. On the same day the police inspected the site and questioned some witnesses. They submitted that Ms. Ye. and her daughter had been crossing the road at some distance from the marked pedestrian crossing. 8. On 21 November 2005 the applicant’s daughter died in hospital. As to the injuries of his granddaughter, they were not dangerous for life. 9. On 12 December 2005 a forensic medical examination of the body of Ms Ye., which had been started on 23 November 2005, was completed. It established that she had died from the injuries sustained in the accident. The expert also established the victim’s position in respect of the car at the collision. 10. On 28 December 2005 another expert report was issued. It stated that it had been technically impossible for Ms M. to avoid the accident. 11. On 29 December 2005 an investigator of the Traffic Accidents Investigation Unit of the Odessa Regional Department of the Ministry of the Interior (слідчий відділу розслідування дорожньо-транспортних пригод ГУ МВС в Одеській області) delivered a ruling refusing to initiate criminal proceedings in respect of the accident. It was established that Ms Ye. and her daughter had been crossing the road unexpectedly and not on a pedestrian crossing, and when the driver, Ms M., had seen them, it had been technically impossible for her to avoid the accident. 12. On unspecified dates thereafter three additional witnesses of the accident, whom the applicant had identified in the meantime, stated that the collision had taken place at the pedestrian crossing. 13. The Government submitted to the Court a copy of the notarised agreement of 14 March 2006 signed by Ms M. and her father, for one part, and the applicant, his wife, Ms Ye.’s widower Mr Dr. (the applicant’s son-in-law) and Ms Y.A., another daughter of Ms Ye., for the other part. Its contents are as follows. Ms M. and her father undertook to pay the other party UAH 101,000 (then equivalent of about 16,700 euros (EUR)) “in respect of pecuniary and non-pecuniary damage caused by the traffic accident”. This obligation would be considered discharged if the payment was made to anyone of the cosignatories for the other party. It was additionally noted that, by that time, Ms M. had also paid UAH 87,264 (then equivalent of EUR 14,400) in respect of the victims’ medical treatment. In exchange, the victims’ family undertook not to seek initiation of criminal proceedings and not to lodge any claims or complaints against Ms M. In case they did not comply, they would have to pay back to Ms M., within three days, the amount of the compensation received. As an attachment to the agreement, there was a receipt signed by Mr Dr., the applicant’s son-in-law, in confirmation that he had received the money in question. 14. The case file did not contain any further information or documents regarding the aforementioned agreement or any follow-up to it. The applicant neither mentioned it in any of his submissions to the Court nor commented on it in reply to the Government’s observations. Accordingly, on 5 June 2015 the Court sent a factual request to the applicant with a view to clarifying the matter. More specifically, the applicant was requested to comment on the agreement of 14 March 2006, namely, to specify whether his family had received the amounts in question and, if so, whether he had had to recover them to the other party given his subsequent criminal complaints in her respect. The applicant replied that he had signed the agreement in question without reading it while being affected by the stress and sorrow caused by the death of his only child. He further noted that it was not him, but his son-in-law, who had received the money from the driver’s family (see also paragraph 31 below). 15. On 4 April 2006 the applicant complained to the Main Investigation Department of the Ministry of the Interior that the investigation of the traffic accident, which had caused the death of his daughter, had been lengthy and ineffective. 16. On 13 April 2006 the Ministry of the Interior replied to him that the investigation had been entrusted to the Odessa law-enforcement authorities. 17. On 6 May 2006 the Odessa Police Department further informed the applicant that it remained open for him to challenge the decision of 29 December 2005 refusing to initiate criminal proceedings in respect of the accident (see paragraph 11 above). 18. On 20 May 2006 the applicant complained to the Odessa City Prosecutor’s Office (“the city prosecutor”) about the ineffectiveness of the investigation into the death of his daughter. 19. As a result, on 7 June 2006 the city prosecutor quashed the decision of 29 December 2005 as premature and based on incomplete investigation. He ordered additional investigation, which was to include, in particular, the following measures: establishing the gravity of the child’s injuries and considering the possibility of her questioning in a pedagogue’s presence; questioning the applicant as to how he had identified some additional eye-witnesses of the accident, of whom he had informed the investigation; questioning those witnesses; and considering the possibility of an additional on-site inspection. 20. On 20 July 2006 another decision not to open a criminal case in respect of the accident was delivered. 21. On 10 January 2007 the Odessa Regional Prosecutor’s Office (“the regional prosecutor”) quashed the decision of 20 July 2006 as premature and remitted the case to the traffic police for additional investigation. 22. On 25 January 2007 another forensic technical expert examination report was issued. This time the expert had, in particular, to assess the conflicting accounts of the events given by the witnesses (some of them submitted that the accident had taken place at an unregulated pedestrian crossing, while others maintained that the victims had been crossing the road at some distance from that crossing). It was found impossible to reconcile those two versions. 23. On 1 March 2007 the investigator again refused to initiate criminal proceedings having found that there was no case to answer. 24. On 24 March 2009 the regional prosecutor quashed the above decision and opened a criminal case against Ms M. on suspicion of a breach of traffic rules causing the death of the applicant’s daughter. The investigator previously dealing with the case was disciplined for the inadequate and lengthy investigation. 25. On 20 May 2009 the applicant was attributed the status of an aggrieved party. 26. On the same day the applicant signed a statement in confirmation that his right to lodge a civil claim had been explained to him. He noted that he intended to lodge such a claim later in the course of the pre-trial investigation once he decided on the amount of the damages. 27. On 1 June 2009 a forensic medical expert established that the death of Ms Ye. had resulted from the injuries sustained by her in the accident. 28. On 26 October 2009 the investigator ordered a complex forensic medical and technical expert examination. On 30 November 2009 it was completed. Having analysed the injuries sustained by Ms Ye. and her daughter, as well as the damages to the car of Ms M., the expert established the position of the victims at the time of the accident. 29. In November 2009 the applicant complained to the regional prosecutor once again that the investigation was not progressing. 30. On 18 May 2010 yet another technical examination was assigned, and on 30 September 2010 it was completed. The expert concluded that, if the victims had been crossing the road not on the pedestrian crossing, it had been technically impossible for the driver to avoid the accident. If, however, they had been on the pedestrian crossing, it had been possible for her to avoid the accident. 31. On 25 May 2010 the father of the driver involved in the accident, Mr M., lodged a civil claim against the applicant and his family seeking the termination of the agreement of 14 March 2006 and the recovery of the amounts paid under that agreement (see paragraph 13 above). On 19 August 2010 Mr M., however, withdrew that claim for unknown reason. The information about these events has been provided to the Court by the applicant in his reply to the factual request of 5 June 2015 (see paragraph 14 above), without any further details. 32. On 7 January 2011 the investigator requested the Odessa transport police to establish the whereabouts of the car involved in the accident and to find who its owner was at that time. 33. On 18 March 2011 the car involved in the accident was attached as material evidence in the criminal investigation. 34. On 24 May 2011 a reconstruction of the circumstances of the accident was conducted with the applicant’s participation. He showed where his granddaughter and the body of his daughter had been found. 35. Having regard to those statements of the applicant, on 6 June 2011 the investigator assigned another forensic technical expert examination. On 9 September 2011 it was completed. The expert found it impossible to establish the exact place of the accident owing to the absence of the documentation regarding the car’s brake trace. Nor could the expert establish whether it had been technically possible for the driver to avoid the accident. 36. On 10 May 2012 the investigator terminated the proceedings for want of evidence of the driver’s guilt. As noted in his decision, three witnesses stated that the accident had taken place on the pedestrian crossing, while other four witnesses stated that it had been outside the crossing, and it appeared impossible to establish the truth. 37. On 6 June 2012 the regional prosecutor quashed the above decision and ordered additional investigation. He noted that the initial investigative measures, such as the accident reconstruction, had not reflected all the issues essential for the subsequent technical expert evaluations to establish the pertinent facts with precision. Furthermore, the inquiry authorities had inadequately complied with the assignments given by the investigator. 38. On 5 July 2012 the investigator ordered an additional forensic medical and technical expert examination. On 6 August 2012 it was completed. It established, in particular, the position of the victims in relation to the car. The examination also confirmed that the applicant’s daughter had died as a result of the accident. Lastly, the expert found it impossible to establish at what speed Ms M. had been driving at the time of the accident. 39. On 28 January 2013, following the entry into force of the new Code of Criminal Procedure, the information on the case was entered in the Unified Register of Pre-Trial Investigations. 40. On 15 March 2013 the investigator repeatedly questioned a number of witnesses. 41. On 12 July 2013 another technical expert examination was assigned. Its results are unknown. 42. According to the most recent information from the Government, as of 29 November 2013 the investigation was ongoing.
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test
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001-182607
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ENG
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GRC
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CHAMBER
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CASE OF DIMITRAS v. GREECE
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No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-1 - Reasonable time)
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Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
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5. The applicant was born in 1953 and lives in Glyka Nera. He is the executive director of the non-governmental organisation “Greek Helsinki Monitor”. 6. On 26 January 2007, 11 February 2007 and 7 March 2007, Greek Helsinki Monitor published on its website some press releases, in which, inter alia, it welcomed the concluding observations of the UN Committee on the Elimination of Discrimination Against Women (CEDAW) for Greece and criticised the domestic authorities’ responses to them. 7. On 4 March 2007, E.T., in her capacity as General Secretary for Gender Equality of the Ministry of Interior, Public Administration and Decentralisation, gave an interview which was published in a magazine included with a Sunday newspaper. In that interview the following statement was put to her: “Greek Helsinki Monitor accuses you of withholding information and lying before the UN about the position of Roma women, minority women, and whether polygamy is practiced in Greece.” E.T. gave the following answer: “What they claim is extremely unfair. They lay the country open to criticism (εκθέτουν τη χώρα) – because what they claim is false. No other NGO shares the Monitor’s position. We, in our report, may not have fully documented everything, but no one can claim that Greece is an entirely patriarchic country and that nothing has been done all these years.” 8. On 1 April 2007 the same newspaper published a reply sent by the applicant, as executive director of Greek Helsinki Monitor, to E.T.’s comments, in which he asked E.T. to document her statements. On 1 June 2007 the applicant lodged a criminal complaint with the public prosecutor at the Athens First-Instance Court. He submitted that E.T. in the above-mentioned interview had made false statements about Greek Helsinki Monitor which amounted to slander committed through the press. The applicant expressed his wish to join the proceedings as civil party, initially for the amount of 100,000 euros (EUR), which he later reduced to EUR 44. 9. Following an urgent preliminary inquiry, to which E.T. was requested to provide a statement as a suspect in the case, on 10 January 2008 the public prosecutor at the Athens Court of First Instance dismissed the applicant’s criminal complaint and filed (αρχειοθέτησε) it away, in accordance with Article 47 of the Code of Criminal Procedure. In particular, the prosecutor considered that the above-mentioned statements made within the context of the interview, did not constitute facts but value judgments and in any event, they did not overcome the necessary threshold of similar exchanges between various bodies. The prosecutor also added that Greek Helsinki Monitor had used the same expression, that is to say it had described statements included in reports prepared by the Greek Government as “false”, in various press releases, in a much more heated tone. 10. On 6 February 2008, following an appeal by the applicant against the order by which his criminal complaint was filed away, the public prosecutor at the Athens Court of Appeal ordered E.T.’s criminal prosecution for slander made through the press, considering that the above-mentioned statements were susceptible of harming the applicant’s honour and reputation, not only individually, but also as representative of Greek Helsinki Monitor. 11. On the basis of the above, E.T. was indicted and 25 June 2008 was set as the hearing date before the three-member Athens Magistrates’ Court. On 26 May 2008 E.T. appealed against her indictment. On 17 June 2008 her appeal was dismissed by the Athens Council of Magistrate Judges. 12. The new hearing date before the three-member Athens Magistrates’ Court was set for 18 September 2008. On that date, at the beginning of the hearing of the case, E.T. raised for the first time an objection concerning lack of competence of the trial court, arguing that her status as a lawyer meant she could not have her case heard by a three-member magistrates’ court. By judgment no. 53833/08 published on the same date, the said court declared itself not to have competence and referred the case to the three-member Athens Court of Appeal for misdemeanours (hereafter the “Court of Appeal”). On 28 November 2008 the operative part of the judgment was corrected and on 6 April 2009, the case file was transmitted to the prosecution service at the Athens Court of Appeal, marked as extremely urgent. 13. The new hearing date was set for 13 May 2009. On that date, the applicant’s lawyer sent a letter to the court, requesting that the hearing be postponed as he could not attend it owing to other professional obligations. Additionally, K.D., a journalist who had interviewed E.T., had not been present and the applicant submitted that he considered her testimony essential. As a result, the Court of Appeal by its judgment no. 4044/09 postponed the hearing until 5 October 2009, citing a material witness’s absence as the reason. On 5 October 2009 the case was not heard because the courts had not been sitting owing to the parliamentary elections that had taken place the previous day. 14. The case was again set for hearing on 17 February 2010. On that date, E.T.’s lawyer submitted certificate no. 2063/2010 of the Greek Parliament, according to which E.T. had been elected as a deputy in the parliamentary elections of 4 October 2009. On that basis, he applied to the court to have the proceedings suspended in accordance with Article 62 of the Constitution in order for Parliament to give permission. The applicant objected to the suspension and filed written submissions in which he argued, inter alia, that it was not necessary for Parliament to grant leave for the criminal proceedings against E.T. as the acts for which she was accused had not taken place in the course of her parliamentary activities. He cited in that connection the Court’s cases Tsalkitzis v. Greece (no. 11801/04, 16 November 2006) and Syngelidis v. Greece (no. 24895/07, 11 February 2010). He further stressed that the impugned acts would become timebarred on 4 September 2010 and requested that the court proceed with examination on the merits of the case. 15. The Court of Appeal, after having held deliberations in camera, published judgment no. 1656/2010 by which it suspended the criminal proceedings against E.T. until the Greek Parliament had granted leave and, if such leave were not granted or if no action were taken in the threemonth period from the submission of the prosecutor’s request to the Greek Parliament, until her status as a parliamentarian ended. In respect of Article 62 of the Constitution and the applicant’s objection, the domestic court held the following: “... In addition, since Parliament has not granted leave, the prosecution is declared inadmissible if it concerns an offence committed when the defendant was a member of parliament. If, however, criminal proceedings were initiated prior to that, when the defendant was not a member of parliament, then they are suspended until the said leave is granted or until the defendant’s status as a parliamentarian ends ... It should be noted that in the present case no matter arises concerning the interpretation of Articles 61, 62 and 20 § 1 of the Constitution ... and of Article 6 § 1 of the Convention, so as for the court to rule that Parliament’s leave is not required to conduct this trial because the above-mentioned act did not take place, according to the civil claimant’s allegations, in the context of her parliamentary duties. That is because the prosecutable offence (slander for an interview that the defendant gave to a newspaper in her capacity as General Secretary for Gender Equality of the Ministry of Interior, Public Administration and Decentralisation) clearly does not concern a private dispute; it should be examined if it relates and is linked to the political activity of the defendant-deputy and in general to the exercise of her parliamentary duties. However, examination of this matter and, eventually, any conclusion thereof can only be carried out by the competent authority, the Greek Parliament ...” 16. The decision was published on the date of the hearing, that is to say 17 February 2010, and was finalised (i.e. entered in a special book at the registry of the criminal court) on 10 August 2010. On 13 August 2010 the applicant lodged an application with the public prosecutor of the Court of Cassation requesting an examination of points of law of the said judgment. His request was rejected on the grounds that the Court of Appeal had rightly suspended the proceedings so that Parliament could grant leave, in accordance with Article 62 of the Constitution. On 19 August 2010 the case file was transferred to the public prosecutor of the Court of Cassation, who the next day sent it to the Minister of Justice. On 23 August 2010 the Minister of Justice transferred the case file to the Greek Parliament. 17. On 24 October 2010 the Special Permanent Committee of Parliamentary Ethics of the Greek Parliament, having taken a deposition from E.T., ruled unanimously that the requirements of Article 83 § 3 had been met and thus E.T.’s immunity should not be lifted. On 12 January 2011 the Plenary of the Greek Parliament dismissed the request for leave to continue the criminal proceedings. On 1 March 2011 the public prosecutor at the Court of Cassation notified the public prosecutor at the Court of Appeal of the outcome of Parliament’s vote on granting leave. 18. On 16 July 2012 the head of the General Directorate of Human Resources of the Greek Parliament notified the Ministry of Justice that E.T. had ceased to be member of parliament since 11 April 2012. On 26 October 2012 the Court of Appeal published judgment no. 8658/2012 in which it considered that the offence of which E.T. was accused had become timebarred as more than forty-two months had passed since its alleged commission. It consequently ended the criminal prosecution. The judgment was finalised on 21 March 2013.
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